' SH. NAJAM-UL-HASSAN, J.--- Ikram son of Ali Ahmad, appellant along with five other co-accused was tried by learned Additional Sessions Judge, Faisalabad in case F.I.R. No,488/2003 dated 5-7- 2003 for the offence under sections 302/34 P.P.C. Registered at Police Station Chak Jhumra, Faisalabad. The learned trial Court vide judgment dated 24-12-2004 while acquitting co-accused convicted the appellant under section 302 (b) P.P.C. And sentenced him to death. He was also directed to pay Rs,100,000 (rupees one lac) as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. Or in default thereof to undergo six months S.-I.
2. Feeling aggrieved by the impugned judgment, the appellant has filed Criminal Appeal No,2109 of 2004 and the complainant has filed Criminal Appeal No,130/2005 against the acquittal of Muhammad Nadeem, Muhammad Kaleem, Muhammad Naeem, Muhammad Waseem and Zeeshan alias Munni, whereas the trial Court has sent reference (M.R.No,28/2005) seeking confirmation of death sentence awarded to the appellant. All these matters are being disposed of together through this single judgment.
3. In brief the facts of the prosecution case as narrated in the F.I.R. (Ex.PA/1) got registered by complainant Akbar son of Sana Ullah are that on 05-07-2003 at morning time his son Nisar Ahmad went to field situated in Killa No,20, Square No,41 for the purpose of hoeing of cotton crop. After a while, the complainant alongwith Arshad and Ghulam Mustafa P.W. Went behind him. They were standing near the Charri crop of their fields and saw that suddenly Waseem, Nadeem and an unknown person came out who had hid themselves behind the heap of chaff and started beating his son. On hearing the hue and cry of Nisar Ahmad the complainant along with Arshad and Ghulam Mustafa P. Ws. Ran towards him. On seeing them, the accused persons namely Naeem, Kaleem and Imram armed with guns 12 bore came out from Charri crop and reached the- spot while raising lalkara. Allegedly Naeem accused fired which hit on the right thigh of his son, Kaleem fired which also hit on upper part of the right thigh, then Ikraam accused fired which hit on right side of his buttock. They tried to come near. The accused persons raised lalkara that if anyone came near would meet the same fate. The accused persons went away while raising lalkara. The motive behind the occurrence statedly was that about two years back the quarrel took place between the complainant and Nadeem and other accused and in that occurrence Nadeem was injured. They took Nisar in injured condition to Allied Hospital where Dr. Mukhtar Ahmad (P . W .9) medically examined him and observed the following injuries:-
(1) A lacerated wound 3 x 3 cm with inverted margins and blackening around it just above right knee (entry wound through and through)
(2) A lacerated wound above 15 x 10 cm with everted margins on back of right thigh distal part + poplitial fossa (exit wound).
(3) A lacerated wound 2 x 2 cm with inverted margins and blackening around it through and through (entry wound on front of right thigh distal part).
(4) A lacerated wound 2 x 2 cm with everted margins on back of right thigh middle part (exit wound).
(5) A lacerated would 2 x 2 cm three in numbers closed to each other on back of right thigh proximal part.
' According to the doctor, all the injuries were fresh on arrival and were caused by fire-arm.
4. Nisar Ahrnad succumbed to the injuries on 5-7-2003 at 10-45 a.m., and Dr. Javed Iqbal (P.W.8) conducted the postmortem examination on the dead body on 6-7-2003 at 9-45 a.m., and found the following injuries : - 1-A A fire-arm wound of entry 2 1/2 x 2 cm. It was just above and right to the mid line on lower part of right thigh and there is also round mark of end of wad 1 1.2 x 1 1.2 cm just left to the injury and blackening was present on the wound.
1-B A fire-arm wound of exit 25 x 8 cm pressure bandages were present inside the wound, blood vessels and bones shattered on back of lower end of right thigh just above the knee joint.
2-A A fire-arm wound of entry 3 x 3 cm. It was 22 cm above the right patela. There was also round mark (abrasion) of round end of wad on right side of the wound on front of thigh. Blackening was present around the wound.
2-B A complex of eight wounds each measuring 3/4 cm x 3/4 cm in large area 15 x 7 cm from middle of buttock to upper part of back of thigh. Exit wounds of pellets dispersed after striking the middle part of right femur which was also shattered.
' As per opinion of the doctor, the death in this case had occurred due to injury Nos.1 and 2 badly damaged the major blood vessels of right thigh resulted in large amount of blood lead to haemorragic shock. So stated injuries were collectively sufficient to cause death in ordinary course of nature; probable time that elapsed between injury and death and postmortem not mentioned due to hospital death.
5. Sarfraz Hussain S.-I. (CW.1.) conducted the formal investigation of this case. On 05-07-2003 he was present at Bus Stop Chak No,191/RB Mulloonwai where Akbar complainant of the case appeared before him and stated about the occurrence and as a consequence of which he recorded his statement Ex. PA and sent the same to the Police Station for the registration of case.
Then he proceeded to Allied Hospital Faisalabad, inspected the dead body of Nisar Ahmad, prepared injury statement Exh.PE, inquest report Exh. PH and sent the dead body to the mortuary for postmortem examination. Then he visited the place of occurrence and secured blood stained earth vide recovery memo. Exh.PC. He also recorded the statements of the P.Ws. Under section 161, Cr.P.C., and supplementary statement of the complainant. After the postmortem examination, the last worn clothes of the deceased were handed over to this police officer which were taken into possession vide recovery memo. Exh.PB. He got prepared scaled site plan through Patwari Exh. P.D.
And Exh.PD/1. On 20-7-2003, he again recorded the supplementary statement of the complainant.
On 28-9-2003, he arrested Muhammad Ikraam and Muhammad Zeeshan accused from their residence and at the time of his arrest Muhammad Ikraam appellant was having 12 bore double barrel gun which was taken into possession vide recovery memo. Exh.PE. Finally the investigating agency after complying with legal formalities submitted challan before the trial Court.
6. Finally the learned trial Court proceeded with the matter and at the commencement of trial framed charge against appellant and his co-accused to which they pleaded not guilty and claimed for trial. During the trial the prosecution produced as many as seven witnesses to prove the charge against the appellant, out of them Akbar complainant (P.W.4) and Muhammad Arshad (P.W.5) appeared as eye-witnesses of the occurrence, whereas Dr. Javaid Iqbal (P.W.8) and Dr, Mukhtar Ahmed (P.W.9) produced the medical evidence. Trial Court also examined Sarfraz Hussain Shah S.-I. As CW.1, as narrated earlier.
7. After recording of evidence, learned trial Court also examined the appellant and his co-accused under section 342, Cr.P.C. The appellant while answering to question "Why this case against you and why the P.Ws have deposed against you?", replied as under:-- "I am innocent. The P.Ws. Being interested and inimical towards me had deposed falsely. At the time of occurrence I was present in my house with my brothers Waseem and Naeem. In fact my brother Nadeem was assaulted at and in the said assault his eye was damaged. In this respect the son of the complainant namely Ghulam Murtaza and his nephew Abdul Sattar were convicted seven years R.I. Nisar Ahmad was done to death by some unknown person. I have been involved in this case falsely in order to effect compromise in the above said case. Nothing was recovered at my instance during the investigation. The complainant and the witnesses had deposed falsely and they did not see the occurrence. My brothers Nadeem and Kaleem have also been involved in this case though they were on duty in Maqsood Textile Mill at the time of alleged incident"
8. The appellant did not make statement under section 340 (2), Cr.P.C., however, he produced Safeer Hussain Manager Material Maqsood Textile Mill Limited (DW.1) in his defence. Learned trial Court after appraisal of evidence vide judgment dated 24-12-2004 convicted and sentenced the appellant as narrated earlier, hence this appeal.
9. Learned counsel for the appellant while challenging the legality of the impugned judgment submits that the time of occurrence has not come on the record which shows that everything has been concocted just to involve the appellant on the basis of previous enmity; the occurrence in this case had taken place in an open place i.e, in the fields, thus, the presence of the witnesses at the place of occurrence is highly doubtful; allegedly the role attributed to the appellant is that he fired at the deceased which hit on his buttock but according to the doctor who medically examined the injured and who conducted the postmortem examination the injury on the buttock is an exit wound and not wound of entry, thus, there is conflict . Between the ocular account and the medical evidence; the co-accused of the appellant namely Kaleem and Naeem were also attributed role of firing at the deceased but they were acquitted by the learned trial Court, therefore on the same evidence the conviction and sentence of the appellant cannot be maintained. Learned counsel further contends that during the spot inspection no crime empty was taken into possession by the investigating officer, thus, the recovery of double barrel gun at the instance of the appellant is of no use to the prosecution. In these circumstances, learned counsel submits that the occurrence was not witnessed by any body and in view of the clear-cut conflict between the ocular account and the medical evidence, the appellant is entitled to get clean acquittal.
10. On the other hand, learned Additional Prosecutor General assisted by counsel for the complainant states that the appellant is named in the F.I.R. With the specific role of causing injury to the deceased; during the investigation crime weapon i.e, double barrel gun was got recovered by the appellant and the same gives sufficient support to the prosecution case and that the motive alleged by the prosecution stands proved from the previous enmity between the parties. In these circumstances, learned counsel submits that the prosecution has proved its case against the appellant beyond any reasonable doubt, thus, the appellant has been rightly convicted and sentenced by the learned trial Court and therefore the impugned judgment does not call for any interference by this Court.
11. We have heard the arguments of learned counsel for the parties and have also gone through the record. This is a case in which the occurrence took place in the early hours of the day and no time of occurrence is mentioned in the F.I.R. But during investigation it has come on record that the occurrence has taken place at 5-00 or 6-00 a.m., in the morning. The place of occurrence is 4/5 squares away from the Abadi in the fields. In this case, the complainant got recorded his statement at 12-45 p.m., at the Bus Stop on which the F.I.R. Was recorded which means that the matter was reported to the police after the delay of six hours. In this case, only Nisaar Ahmed son of the complainant was deceased and there is no injured witness. The deceased was taken to the hospital where he was medically examined but later on he died at 10-45 a.m. The postmortem on the person of the deceased was conducted on the next day i.e, at 9-45 a.m. i.e, after the delay of eleven hours, such a delay in conducting the postmortem examination makes the prosecution case highly doubtful. This can only be the result of non-preparation of the police papers. This also indicates that the time was consumed in consultation and the real facts were not known to the complainant and witnesses and after the preparation of the police papers the postmortem was conducted.
12. In the F.I.R. Five persons were specifically nominated as accused and all these five persons were brothers inter se. In other words the whole family was involved in this case. There was an unknown person along with them. Later on, after the delay of fifteen days through supplementary statement of the complainant name of Zeeshan was also added. In all, six persons were nominated as accused and out of them three were stated to be armed with 12 bore guns i.e, applicant, Kaleem and Nadeem. In the F.I.R. It was stated that three persons gave fist blows to the deceased when the witnesses first saw the occurrence. The medical evidence shows the non-existence of such injury on the body of the deceased. In the F.I.R. Three specific fires were attributed to three different accused. The fire attributed to appellant Ikram was on the buttock of the deceased. The doctor who conducted the postmortem examination and even the doctor who conducted the medical examination of the deceased categorically stated that this injury was an exit wound of injury caused on front of the thigh of the deceased. In this view of the matter, as far the appellant is concerned, there is clear contradiction in the medical and ocular evidence. This circumstance also indicates that the witnesses have not seen the occurrence and have only concocted the story. No one is expected to confuse the seat of injury caused by shot gun from a close distance. The doctor who conducted the postmortem examination clearly stated during cross-examination that all the injuries on the person of the deceased were the result of two fires. So implicating three persons for two fires also shows that the witnesses have not seen the occurrence and only on guess work they are implicating the accused, as observed earlier. The whole family of the appellant has been involved in this case and the circumstances, as c discussed above, indicate that the complainant party has widened his net for implicating as many persons as possible but the thing remains that the medical evidence in straightway in conflict with the ocular account specially with regard to appellant. So, one thing is clear that the number of accused has been widely exaggerated by the complainant. One of the reasons could be that no one has witnessed the occurrence. The appellant and his co-accused were involved only because of the enmity.
13. So far the motive part is concerned, no doubt Nadeem one of the acquitted co-accused was injured and his eye was damaged in that fight in which Ghulam Murtaza son of the complainant and Abdul Sattar son of brother of the complainant were sentenced to seven years and it is alleged that the occurrence has taken place to take revenge of the earlier occurrence. On the other hand, the appellant has also taken the same motive as reason for his false implication and it is stated that it was an unseen occurrence and later on all his family was involved so that they are forced to make compromise with the above mentioned son of the complainant and his nephew who were involved in the earlier case. The accused of the earlier case in which Nadeem was injured were convicted, as such there was no reason for the appellant to commit this occurrence. In these circumstances, the motive part of the occurrence is not of that strength which could lead only a consequence in which the deceased was killed. The deceased was not accused in that case and as such the motive cannot be used as independent corroboration of unimpeachable source to substantiate the ocular account.
14. During the investigation four co-accused who were brothers of the appellant were found innocent by the investigating agency and they were not even arrested but the complainant did not bother to file a complaint against them and he even did not file an application before the senior officers. Nothing was recovered from the four co-accused of the appellant but later on they were charged by the Court and faced the trial and ultimately they were acquitted. One Zeeshan who was added as an accused in the supplementary statement was shown as an unknown accused in the F.I.R. But at one stage it was admitted by the witnesses that he was known to them. So no reason for not mentioning his name has come on the record. Nothing was recovered from Zeeshan.
No identification parade was conducted to identify him and ultimately after trial even he was acquitted by the trial Court. As the doctor has admitted that all the injuries on the person of the deceased were the result of two gun shot fires. So there is a possibility that both the fires were made through a single double barrel gun by the single person. The appellant was convicted by the trial Court on the basis that he was found involved by the investigating officer. While appearing as CW.1 Sarfraz Hussain Shah S.-I./ investigating officer admitted that the deceased informed Imam Masjid before his death that it was the appellant and one Zeeshan who were involved in this murder case. No such Imam Masjid was produced in the Court. Even the investigating officer was given up by the prosecution and later on he was summoned as Court witness on the application of the accused side. In the absence of any legal material against the appellant case of the appellant remains on better footing than the case of acquitted co-accused Kaleem and Naeem as the injury attributed to the appellant was found exit wound by the doctor.
15. The main crucial thing in this case is to find out as to who is the real culprit and that is not possible because two fires were made on the deceased and three persons have been attributed the same injuries. So it cannot be ascertained through any source or by going through any kind of test that who was the person who was not involved in this case and who did not fire on the deceased. The non-examination of the investigating officer by the prosecution further indicates that the prosecution has tried to suppress his evidence from the Court.
16. There is another circumstance which belies the presence of the eye witnesses and that is the presence of the blackening around the wounds. Both entry wounds were having blackening around them and there was also mark of wad near both the injuries. This circumstance indicates that the fire was made from a very close range and the seat of injuries also leads to a circumstance that both the fires are the result of one double barrel gun. Both the eye-witnesses stated that the fire was made from the distance. Even the site plan indicates that the assailants fired from a distance of more than almost hundred feet which contradicts with the medical evidence. Non-availability of the empty from the place of occurrence can also lead to circumstance that there was only one assailant who fired with double barrel gun and did not reload the same, as such no F empty was found near the place of occurrence. All these things lead to conclusion that the occurrence was not-witnessed by any body and every thing has been concocted just to implicate the whole family of the appellant.
17. So far as the recovery of gun of the appellant is concerned, it is in the evidence that the appellant was arrested from his house and at the time of his arrest he was having double barrel gun. In these circumstances, such a recovery cannot be said to be the result of any disclosure made by the appellant and the same cannot be used against him especially when no empty was recovered from the place of occurrence and there is no evidence to connect the appellant with the commission of offence. The position would have been slightly different if the gun had been recovered on the disclosure and pointation of the appellant and in the absence of such circumstance the recovery is of no use to the prosecution and the same cannot be used for any purpose what to say of corroborating the ocular account.
18. To come to any conclusion the Court can rely upon the material produced before it or based on the material collected by the investigating officer during the investigation regarding the involvement of the accused or any circumstances indicating that the accused has been falsely involved but only the opinion of the investigating officer or any of his senior has no legal value in this respect and the same alone cannot be based ground for the conviction of any one.
19. The honourable Supreme Court in case titled Ata Muhammad and another v. The State (1995 SCM R 599) held that if a criminal case is to be decided just on the basis of surmises and conjectures, then the golden rule of benefit of doubt will be reduced to naught. The relevant portion of the judgment reads as under: "The finding of the guilt should be rested surely and firmly on the evidence produced in the case and plain inference that may irresistibly be drawn from the evidence. If the criminal case is to be decided merely on surmises and conjectures or high probabilities to prove the guilt Of an accused, the golden rule of benefit of doubt to the accused which is deep rooted in our country and has been dominant feature of administration of justice with consistence approval of this Court, will be reduced to naught".
20. In case titled Ghulam Qadir and 2 others v. The State (2008 SCM R 1221), the honourable Supreme Court while dealing with the golden principle of benefit of doubt made the following observations:-- "It needs no reiteration that for the purpose of giving benefit of doubt to an accused person, more than one infirmity is not required, a single infirmity creating reasonable doubt in the mind of a reasonable and prudent mind regarding the truth of the charge makers the whole case doubtful.
Merely because the burden is on the accused to prove his innocence it does not absolve the prosecution from its duty to prove its case against the accused beyond any shadow of doubt and this duty does not change or vary in the case. A finding of guilt against an accused person cannot be based merely on the high probabilities that may be inferred from evidence in a given case.
Mere conjectures and probabilities cannot take the place of proof".
20. A While considering all the above mentioned circumstances and taking guidance from the judgments of the honourable Supreme Court, we are of the consistent and firm view that the prosecution has not been table to prove the case against the appellant beyond any reasonable doubt. Accordingly while giving benefit of doubt in favour of the appellant, this appeal is accepted, his conviction and K sentence is set aside and he is acquitted of the charge. Appellant Ikram son of Ali Ahmed shall be released forthwith if not required to be detained in any criminal case.
21. So far Appeal (Criminal Appeal No,130 of 2005) filed by the complainant against the acquittal of Muhammad L Nadeem, Muhammad Kaleem, Muhammad Naeem, Muhammad Waseem, Zeeshan alias Munni, is concerned, in this regard, we have observed that during all the investigations, Muhammad Nadeem, Muhammad Kaleem, Muhammad Naeem and Muhammad Waseem were declared innocent and that no specific role was attributed to Muhammad Nadeem and Muhammad Waseem. As far Zeeshan respondent is concerned, he was not named in the F.I.R. And was involved through the supplementary statement of the complainant which was made on 27-7- 2003 i.e, after fifteen days of the registration of F.I.R. And even in the said supplementary statement no specific role was attributed to Zeeshan. During the investigation no incriminating article was recovered from any of the respondents. Even otherwise, the deceased received two fires and three persons have been assigned the role of firing. So it cannot be ascertained as to who is the real culprit and who is innocent one. The whole family i.e, five brothers have been involved in this case and in the existence of the enmity between the parties the involvement of innocent persons cannot be ruled out. So, the reasons given by the learned trial Court while acquitting said respondents/accused are neither perverse nor arbitrary and in the circumstances the same do not call for any interference by this Court in its appellate jurisdiction. Accordingly the appeal filed by the complainant (Criminal Appeal No,130 of 2005) having no merits stands dismissed.
22. Resultantly death sentence awarded to the appellant is not confirmed and reference (M.R.No,28 of 2005) is answered in the negative.