JUDGMENT SHAHID HAMEED DAR, J. Through this judgment we intend to dispose of Criminal Appeal No. 1349 of 2005 filed by Asghar Ali, appellant-accused.
2. We shall dispose of Murder Reference No.493 of 2005, sent by the learned trial Court as well, through the same judgment.
3. The appellant-accused namely Asghar Ali was prosecuted for the offence of murder of Rehmat Ali son of the complainant in case F.I.R. No.486 of 2004 dated 31-10-2004 under section 302, P.P.C.
Registered at Police Station Mustafa Abad, Tehsil and District Kasur.
4. The appellant was held guilty by the learned Addl. Sessions Judge, Kasur who vide judgment dated 27-6-2005 convicted and sentenced the appellant-accused, as under:-- Under Section 302(b) Death with order to pay Rs.1,00,000 as compensation, to the legal heirs of the deceased under section 544-A, Cr.P.C. And in default thereof, to undergo six months' S.I.
5. The prosecution story, precisely, as unfurled in the F.I.R. Exh.PA, by Akbar Ali, complainant P.W.1 is that his son Rehmat Ali (deceased) had a quarrel with his neighbour Asghar Ali (appellant) at a fare (mela), Baba Mithu Shah, which, was patched up; both of them thereafter, went to their houses; the complainant P.W.1, Muhammad Asghar P.W. (not produced) and Master Mushtaq Ahmad (P.W.2) were chatting about the said fare, at about 3-00 a.m., while sitting on a turn of the street, when, they suddenly, heard the report of a fire shot and ran towards the house of the complainant where they saw Asghar Ali (appellant) emerging from the door of the Baithak holding a.12 bore gun; they attempted to catch him but he fled away, waiving his weapon; they found Rehmat Ali lying dead in the Baithak with a firearm injury; the motive behind the occurrence was the above said squabble between Rehmat Ali deceased and Asghar All (appellant), at the village fare (mela).
6. The F.I.R. Exh.PA was recorded by Muhammad Arif S.-I., on the statement of Akbar Ali (Complainant, P.W.1) at 4-15 a.m. On 31-10-2004 at Police Station, Mustafa Abad, District Kasur.
7. Muhammad Arif S.-I./I.O. P.W.8 reached the place of occurrence after the lodgment of F.I.R. Exh.PA, examined the dead body of the deceased, prepared injury statement Exh.P.11, inquest report Exh.P.I; drafted an application Exh.PK for the postmortem examination of the deadbody of the deceased and transmitted the same to the mortuary under the escort of Muhammad Sharif 408/C; he inspected the place of occurrence, prepared visual site plan Exh.PL, collected blood stained earth from the spot vide memo Exh.P13, attested by Muhammad Asghar P.W. (not produced) and Master Muhammad Mushtaq P.W.2; he also collected an empty P-4 vide memo Exh.PC,, attested by the above said witnesses; after the - postmortem examination of the deadbody of Rehmat Ali, deceased, he secured last worn clothes of the deceased, Shalwar P-1, Qameez P-2 and a scaled phial P-3 containing pellets vide recovery memo. Exh.PD, attested by Muhammad Sharif 408/C, P.W.
(not produced) and by the aforementioned P.Ws.; he got prepared scaled site plan Exh.PE, and Exh.PE/1 in duplicate by Muhammad Nasrullah, Draftsman P.W.3.
8. Asghar Ali, the appellant-accused was arrested on 9-11-2004 by Muhammad Arif, S.-I./I.O., P.W.8, who, pursuant to his disclosure on 12-11-2004, led to the recovery of a.12 bore gun P-5 vide memo.
Exh.PF, attested by Farzand, P.W. (not produced) and Ashfaque Ahmad, P.W.4. The I.O. Prepared the site plan Exh.PF/1, of the place of recovery of the above said 12 bore gun. Upon completion of investigation, a report under section 173 Cr.P.C. Was submitted before the learned trial Court for trial of the accused.
9. At the commencement of the trial, the learned trial Court charge-sheeted the appellant- accused under section 302 P.P.C. To which he did not plead guilty and claimed a trial.
10. The prosecution examined 8 witnesses in all to prove the charge against the appellant-accused Akbar Ali, complainant, P.W.1 and Muhammad Mushtaq P.W.2 furnished the Wajtakkar account of the occurrence in question P.W.1 also deposed about the motive part of the incident; Muhammad Mushtaq P.W.2 also deposed about the recovery of the blood-stained earth, vide memo Exh.P13 and the recovery of crime empty, P-4 vide memo. Exh.PC he identified the dead body of the deceased at the time of postmortem examination, besides, he also attested the recovery memo Exh.PD qua the last worn blood-stained clothes Shalwar P-1, Qameez P-2 of the deceased and the sealed phial P-3; Ashfaque Ahmad, P.W.4 and Farzand Ali P.W. (not produced) attested the recovery memo.
Exit.PF qua.12 bore gun P-5, got recovered by the appellant-accused on 12-11-2004 Muhammad Nusrullah draftsman P.W.3 prepared the site plan in duplicate, Exh.Pl and Exh.PE/1 of the place of occurrence in the scale of 1 inch equal to.20 feet.
11. The medical evidence was provided by the Medical Officer, Dr.Mumtaz Ahmad, P.W.7 who conducted postmortem examination of the dead body of Ramat Ali, deceased, at 11-00 a.m. On 31- 10-2004 vide post mortem examination reports Exh.PG (pictorial diagram Exh.PG/1). The solitary firearm injury on the deadbody of the deceased, as noticed by the Medical Officer, had proved fatal. The probable time elapsed, /between injury and death was about 15 minutes and between death and postmortem was about 7 hours. The cause of death recorded by Medical Officer (P.W.7) was the shock due to 'haemorrhage, caused by injury No.1.
12. Muhammad Arif S.-L/I.O., P.W.8 conducted complete investigation of this case from day one, till preparation and submission of challan under section 173, Cr.P.C. For trial of the accused. The remaining evidence produced by the prosecution was more or less formal in nature.
13. The rned Public Prosecutor tendered in evidence the reports of, Chemical Examiner Exh.PM, the Serologist Exh.PN, the Forensic Science Laboratory, Lahore Exh.PO and announced the prosecution case closed.
14. In his statement recorded under section 342, Cr.P.C. Asghar Ali appellant-accused denied all the charges against him and professed his innocence with a Parallel theory, while responding to the question, "why this" case against you and why the P.Ws. Had deposed against you", in the following words:-- "All the P.Ws. Are related inter se and interested and deposed falsely against me. In fact, Rehmat Ali deceased was furious and was indulged in keeping bad eyes upon the women. Waris Ali my father complained so many times to P.W. Akbar Ali complainant to desist Rehmat Ali from teasing Samina Bibi my sister. On the night of occurrence, Rehmat Ali deceased took forcibly my sister Samina Bibi to his Bathik At that time, I was in factory where I was employed. My father Waris Ali and 'my mother found missing Samina Bibi my sister and they started search her. When they reached the house of the complainant and saw my sister Samina in a shameful condition with deceased in his Baithak upon which, my father Waris Ali made fire shot upon the deceased with his licensed gun which hit to deceased Rehmat Ali. Waris Ali made a fire shot to his daughter which was missed and hit to Rehmat Ali. Mushtaq, Asghar and Akbar Ali were not present at the spot. Further, firstly police asked the complainant that complainant had lodged a false case with false narration of the occurrence and in fact Waris committed the crime but thereafter, Arif S.-I. After getting some illegal gratification from the complainant booked me in this false case, he even did not record my version.
Nor he bother to record my defence witnesses. No quarrel had taken place in the Maila of Baba Mithu. Shah between me and the deceased. I am a gentle man and there is no single F.I.R. Against me lodged in the P.S. I am innocent."
15. He did not appear as his on witness under section 340(2) Cr.P.C. To repel the prosecution case against him but, produced Muhammad Aslam son of Taj Din, as DW-1, in support of his defence plea.
16. Upon conclusion of the trial, the learned trial Court after finding, the prosecution's case, against the appellant-accused to have been proved, beyond reasonable doubt, convicted and sentenced him, as stated herein before, hence, the present appeal and the connected murder reference before this court.
17. We have heard learned counsel for the parties and have paused the record of this case.
18. The learned counsel for the appellant, being confident to have torn apart the prosecution case, contends that the prosecution had failed to prove its case against the appellant beyond reasonable doubts and that he should have been acquitted; P.W:
1. And P.W.2 are not the eye- witnesses of the occurrence and they have rendered a false and tutored Wajtakkar account against the appellant as they were neither present at the spot nor had witnessed the appellant at the place of occurrence, besides, their statements are pregnant with countless contradictions and discrepancies; the appellant had neither taken part in the incident nor had caused any injury to the deceased; the story advanced by the prosecution was a plethora of lies which had been fabricated by the complainant and his co-witnesses under a conspiracy, after they found the dead body of the deceased; the deceased had not been murdered by the appellant-accused and he, being an immorally corrupt person, had fallen prey to his on act of roguery and none other could be blamed for the end, the deceased met with; the appellant-accused was not even remotely linked with the occurrence in question and he has been falsely roped in this case by the untruthful witnesses; the medical evidence does not corroborate the so-called ocular account in any manner as the time elapsed between injury and death i.e. About 15 minutes, negates the entire version of the complainant and that of his witnesses; the complainant P.W.1 and Muhammad Mushtaq P.W.2 have admitted that they had not seen the appellant-accused, firing at the deceased and their testimonies are based upon hypothetical assumptions; the motive has gone un established as the prosecution failed to produce any viable evidence during the trial, to prove the same; the.12 bore gun P-4 allegedly recovered at the instance of the appellant, has not been found wedded with any crime empty by the office of Forensic Science Laboratory, Lahore, so the statements of Ashfaque Ahmad P.W.4 and that of Muhammad Arif S.-I./I.0, P.W.8 are inconsequential for prosecution's case; the impugned judge suffers from non-reading and misreading of the evidence which has been passed in an arbitrary, perverse and capricious manner; the site plan also does not corroborate the statements of P.W.1 and P.W.2; the witnesses of ocular account, failed to establish their presence at the place of occurrence at the relevant time and they have rendered mendacious statements in this regard, which cannot he used under the law to convict and sentence the appellant; the impugned judgment has resulted in miscarriage of justice which may not be sustained.
19. On the basis of the said contention, the learned counsel for the appellant has prayed for the acquittal of the appellant. In the alternative, he has made a prayer to convert the death sentence of Asghar Ali appellant into one of imprisonment for life on the ground, that there are mitigating and extenuating circumstances in favour of the appellant as the motive has gone unestablished.
Relies upon Noor Muhammad v. The State and another (2010 SCM R 97).
20. Conversely the learned Deputy Prosecutor-General assisted by learned counsel for the complainant have.. Submitted in unison that the prosecution has succeeded in establishing its case against the appellant beyond reasonable doubt and thus his conviction and sentence recorded by the learned trial Court does not warrant any interference by this court.
21. We find, after having heard the learned counsel for the parties and gone through the record, that the prosecution case hinges, at Wajtakkar evidence, furnished by P.W.1 and P.W.2, the medical evidence presented by P. W.7 and the evidence of motive produced by P.W.1.
22. Since it is a case of two versions so we appreciate it in accordance with the guiding principles laid down by the superior courts from time to time, for the appreciation of evidence in such like cases. Firstly we would like to discuss prosecution's case and its evidence so as to reach an independent conclusion as to its truthfulness or its falsity. In case we exclude the prosecution case or its evidence, more particularly the Wajtakkar evidence of P.W.1. And P.W.2 from consideration then the statement of the appellant---accused recorded under section 342, Cr.P.C. Shall have to be accepted without scrutiny. If the prosecution case is heId to be credible and trustworthy, then, we will examine the two rival cases, by placing them in juxtaposition to each other.
23. This is a case wherein there is literally, no ocular account nor any evidence has been produced by the prosecution to establish the factum that the appellant-accused had made firing upon the deceased, but it is, at the most, a case of circumstantial evidence, mainly hinging at the Wajtakkar evidence, furnished by Akbar Ali complainant, P.W.1 and Muhammad Mushtaq P.W.2. According to the prosecution's case the appellant-accused had been seen by Akbar Ali, complainant P.W.1, his brother Asghar (not produced) and Muhammad Mushtaq P.W.2, leaving the place of occurrence, while holding a.12 bore gun in his hand, who was attempted to be caught by them but he decamped, brandishing his weapon in the air. None of the aforesaid witnesses had seen the appellant-accused firing at the deceased. They, according to their testimonies, entered the Baithak, after the assailant had run away and found Rehmat Ali lying there dead.
24. The time of occurrence is very important and crucial so far as the instant case is concerned.
The prosecution witnesses had to establish their presence in proximity to the place of occurrence at the relevant time i.e. 3-00 a.m. The exigency of the moment had to be shown by them as to why they had gathered at the turn of the street wherefrom they had heard the report of firing and on hearing the same, they had rushed to the place of occurrence. The depositions made by the witnesses of the Wajtakkar evidence, reveal that the house of the complainant was situated towards cast of a pathway, running in north-south direction which, according to Muhammad Arif P.W.8 was a thoroughfare and was open at both ends. The site plan Exh.PE indicates that the Baithak i.e. The place of occurrence was situated towards the northwest corner of the courtyard of the house of the complainant and it had a door, which opened in the said street. The point 'A', shown in the site plan, denotes the place where Rehmat Ali deceased had been fired at and murdered, was very near to point which according to the site plan, was the place wherefrom the accused had fired at the deceased and this point was right in the middle of the door, opening in the street. Muhammad Mushtaq P.W.2 has deposed in his testimony that he along with his co- witnesses was sitting on the bricky street, at a distance of about 10 to 15 yards towards south of the house of the complainant, at the time of occurrence, wherefrom, they had heard the sound of a fire shot and then they saw the accused running towards north side. Akbar Ali complainant P.W.1. Has stated in his testimony that he and his co- witnesses were sitting on a platform (tharra), in front of the house of one Babar Ali, which was 5 to 6 feet long and was built in north-south direction. He further deposed that their sitting place was 15 to 20 yards away from his Baithak and the street was about 10 feet were, through and through. He also deposed that he and his co-witnesses after hearing the report of a fire shot looked towards his, Baithak and rushed towards the point of trouble. The site plan Exh.PE, shows that point 'C' is the place, where the complainant and his co- witnesses sat, chatting with each other, at the time of occurrence and this place is situated towards south of the house of the complainant, at a distance of 60 feet.
25. Now, a question arises, if the above said witnesses had rushed to the place of occurrence, towards north, from a distance of 15 to 20 yards and the appellant-accused, who was present at the threshold of the entry point of the Baithak; after having made the solitary fire shot upon the deceased had fled away towards north, in the street, he must not have been witnessed by the aforementioned witnesses from the front and if they had any opportunity to look at the running away accused, they could do so Only from his rear side, so every probability of mistaken identity of the assailant existed as the assailant, had fled towards north. It was far easier for the assailant to run away from the place of occurrence towards north after the occurrence, as he, according to the site plan Exh.PE and the depositions of P.W.1 and P.W.2, was standing almost one step of the street.
Once the assailant had fired at the deceased in the Baithak and had felled him down, why would he wait for the complainant P.W.1 and Muhammad Mushtaq P.W.2 to reach the place of occurrence and see him standing at the spot while holding a gun. If the story narrated by the said witnesses, bears any iota of truth qua their presence at the turn of the street, at the time of occurrence, it shall lead to only one conclusion that the assailant after having made a single effective fire shot at the deceased, had run away towards north, without leaving any opportunity for the complainant and his co-witnesses to have a glance at the run away accused.
26. Both P.W.1 and P.W.2 have stated that they had been sitting at the turn of the street, wherefrom, the Baithak was visible but they had not seen the appellant-accused entering the place of occurrence. Muhammad Asghar, P.W., happens to be the real brother of the complainant but he has been given up by the prosecution without any just cause. The admission of P.W.1 that the assailant managed to escape from the place of occurrence, within no time is a strong indication that he had no idea whatsoever as to who had committed the murder of his son. The fare of Baba Mithu Shah might be an occasion for the complainant, his co-witnesses and other co-villagers to enjoy the festivities during the day hours but it could hardly be an occasion for the complainant and his co-witnesses to sit in the street at the odd hour of the night, especially, when it was the month of Ramadan (Ramazan), according to the lunar calendar and it must have been immensely cold being a night between 30/31-10-2004.
27. The Muslims, usually, start preparing for keeping fast in the Holy the of Ramadan and life becomes active, and the said time i.e. 3-00 a.m.
So, keeping in view the chill in the weather, the i.e hours of the night, the time to get up and take Sehri meals, followed by preparations for Fajr prayer, it is very hard to believe that the complainant P.W.1 and Muhammad Mushtaq P.W.2 had told the truth while offering an explanation for the purpose of their presence at the above said spot, at the mentioned time. Their testimonies arc full of contradictions and discrepancies and both of them have badly failed to establish their presence near the place of occurrence at the relevant time. The way, both the above said witnesses have narrated the facts of this case, has led us believe that their testimonies are incredible, inconsistent, unnatural and unreliable, which cannot be made basis for conviction and sentence to the appellant-accused, let alone, awarding him the capital punishment.
28. So far as the raison decree is concerned it finds mention in the F.I.R. Exh.P.A. And the prosecution witness P.W.1 has deposed in terms that a quarrel had taken place between Rehmat Ali, deceased and Asghar Ali, appellant prior to the occurrence, in the Mela of Baba Mithu Shah, without adverting to the date and time for the said brawl. The complainant did not produce any evidence regarding this aspect of the case, during the course of investigation, as well as, during trial. It has also not been deposed about by the complainant as to what was the reason which had sparked of a quarrel between them and who were the persons who had intervened to patch up the matter.
Muhammad Arif S-I., P.W.8, in his testimony, has categorically stated that no such occurrence, between the deceased and the appellant accused, had taken place prior to the occurrence, in the above said fare.
He has further deposed that, had any such scuffle taken place between them, he must have investigated the same. The complainant, P.W.1 did not take the I.O. To the said fare, during investigation, to establish the facture of motive. Muhammad Mushtaq P.W.2 is absolutely silent about the motive incident and he has preferred to keep quiet in this respect. It is the duty of the prosecution to establish the motive; alleged against the accused through some cogent evidence and in case of their failure to do so, they shall have to face its consequences. In a recent judgment passed by the august Supreme Court of Pakistan, titled Noor Muhammad v.The State and another 2010 SCM R 97, it has been held that prosecution, though not called upon to establish motive in every case, yet, once it has set up a motive and, fails to prove the, same, then, prosecution must suffer the consequences and not the defence. The prosecution was not absolved of their primary duty to stand on its on legs even in respect of motive. In these circumstances, we have come to a definite conclusion that the prosecution miserably failed to prove motive, as narrated by the complainant, before the Investigation Officer/P.W.8, for setting the machinery of law in motion.
29. Insofar as the medical evidence is concerned it has been produced by Dr.Mumtaz Ahmad, P.W.7 who performed autopsy on the dead body of Rehmat Ali, deceased at 11-00 a.m. On 31-10-2004 vide postmortem examination report, Exh.PG (pictorial diagram.Exh.PG/1). The eminent characteristic of the postmortem examination is that the only injury on the deadbody of the deceased had been caused by a firearm, the detail of which is reproduced hereunder: ( i) A round penetrating wound 3 x 3 c.m with abraded and inverted margins on the outer side of right chest 10 c.m below to the right axilla and near the mid axillary line and 9 c.m below and outer to right nipple and at 8 0' clock position to 'right nipple (entry).
30. The medical evidence establishes the fact that the dead body of the deceased had been dissected by the Medical Officer who had recorded his findings that the deceased had died due to shock and haemorrhage caused by the above said injury. The time elapsed between injury and death, was noticed by the Medical Officer, P.W.7, as 15 minutes and between death and postmortem as about 7 hours. The medical evidence may establish the number of injuries, the kind of injuries. The weapon used and other ancillary details but it cannot identify the author of such injuries.
31. So far as the evidence of recovery of.12 bore gun P-4 vide memo: of recovery Exh.PF is concerned, it has been furnished by Ashfaque Ahmad, P.W.4 and Muhammad Arif S.-I./I.O., P.W.B.
This piece of evidence is inconsequential to the prosecution's case as the said gun has not been proved to be the weapon of offence, through a report of the Forensic Science Laboratory, Lahore.
Though a crime empty, P-4 had been taken into possession by Muhammad Arif P.W.8 on 31-10- 2004, vide memo. Exh.PC, yet, it was not transmitted to the above said office/lab. For necessary tests so as to conclude, if it had been fired through the above said gun P-4- or not. Instead, a report Exh.PC has been tendered in evidence by the prosecution which shows the workability and the character of gun P-5, in terms of determination of its bore. The above said report does not advance the prosecution case, against the appellant-accused in any manner.
32. Insofar as the defence plea and the defence evidence produced by the appellants-accused is concerned we find it as devoid of any substance or truth for the reason that no plausibility existed to believe the contention that the deceased had been fired at and murdered by the father of the appellant-accused. The statement of Muhammad Aslam DW-1 is devoid of any truth as he neither joined the investigation nor recorded any such statement before the I.O. Who categorically denied all the suggestions put to him by the defence during his testimony, as to the said defence plea. As we have brushed aside and rejected the material prosecution evidence rendered by Akbar Ali P.W.1 and Muhammad Mushtaq P.W.2, hence, the defence plea in fact, has lost its importance and relevance which is also brushed aside being irrelevant and immaterial.
33. For the foregoing reasons, the prosecution, as we conclude, has failed to prove its case against Asghar Ali, the appellant-accused beyond any shadow of doubt, hence, we allow the Criminal Appeal No.1349 of 2005 and set aside the impugned judgment, passed by the learned trial Court.
Asghar Ali, appellant, is acquitted of all the charges and he would be released forthwith, if not required in any other criminal case.
34. The Murder Reference No.493 of 2005 is answered in the negative..