SH. NAJAM UL HASAN, J---Criminal Appeal No,88-J of 2005 filed by Ehsan Ullah appellant is directed against the judgment dated 29-4-2004 passed by the learned Addl. Sessions Judge, Wazirabad whereby the appellant was convicted under section 302/34, P.P.C. and sentenced to death and was also directed to pay compensation amounting to 1,00,000 to the legal heirs of Tariq Mahmood deceased or to undergo six months rigorous imprisonment in case. F.I.R. No, 168 dated 30-5-2000 registered at Police Station Ghakhar Mandi, Distt. Gujranwala. The State has also approached this Court by way of Murder Reference No, 404 of 2005 seeking confirmation of sentence of death imposed on Ehsan Ullah convict. Since both these matters are interconnected, as such the same are being disposed of together through this single judgment.
2. It may be mentioned here that challan in this case was submitted against Ehsan Ullah, appellant and his son Zaka Ullah co-accused and charge was framed against both of them. However, at later stage case of Zaka Ullah co-accused being minor was separated to be tried by the learned Court constituted under the Juvenile Justice System Ordinance, 2000. The appellant was tried by the learned Addl. Sessions Judge, Wazirabad and at conclusion of trial he was convicted and sentenced as noted above.
3. The present occurrence took place at 11-30 a.m. on 30-5-2000 in front of Dera jointly owned by the complainant party as also the appellant party over dispute of a peter engine (tube well) in which Tariq Mahmood a brother of the complainant was done to death statedly by the appellant and his son Zaka Ullah, co-accused and the matter was reported at Police Station Ghakhar Mandi by Khalid Mahmood, complainant (P.W.7) same day at 12-30 p.m. where F.I.R. (Exh.PF) was registered.
4. The prosecution story, in brief, as unfolded in the F.I.R. by the complainant is that on the fateful day he was present at his Dera where his brother Tariq Mahmood was irrigating vegetables sown in nearby field with peter engine (tube-well). At about 11.30 a.m. the appellant armed with .12 bore gun along with his son Zaka Ullah also armed with .222 rifle came on a tractor and asked Tariq Mahmood as to why he was irrigating his field with peter engine. Tariq Mahmood invited them to sit and resolve the matter amicably upon which some altercation took place between them and Zaka Ullah co-accused fired a burst with his .222 rifle hitting chest, left shoulder and other parts of Tariq Mahmood. He fired second burst hitting head of Tariq Mahmood shoving off his skull who thereafter fell down. The appellant also fired a shot with his .12 bore gun which landed on chest and abdomen of the deceased. On hue and cry raised by the complainant and the P.Ws. the culprits ran away while firing in the air. Tariq Mahmood succumbed to the injuries at the spot.
Bone of contention resulting in the present occurrence was stated to be a peter engine (tube well) which was jointly owned by both the parties. It was alleged that a day prior to the present occurrence the appellant had asked the deceased either to pay share of appellant in the peter engine or to receive his share and sell the same to the appellant but the matter could not be resolved and resulted in an altercation and when the deceased was irrigating his field with the said peter engine the present occurrence took place.
5. Dr. Muhammad Yousaf Rajput, (P.W.1) conducted post mortem exami-nation of Tariq Mahmood on 30-5-2000 and found following injuries on the dead body:-- A fire arm lacerated wound 10 cm x 12 cm almost circular in shape, fracturing and separating the pieces of bone. Almost of same size from the top of head with protrusion of brain matter.
(ii) Fire arm entry wounds with blackening and burning, irregular inverted edges 4x2 cm on back of the left chest. 18 cm below the left shoulder.
(iii) Corresponding firearm exit wound 14 cm x 7 cm with averted margins on front of right chest 9 cm above the right nipple.
(iv) Fire arm lacerated wound of entry 3 cm x 2 cm with blackening and burning on back of left abdomen.
(v) Corresponding fire arm exit wound 3 cm x 2 cm on left side of the abdomen 7 cm lateral to the line from the left nipple.
(vi) Fire arm entry wound 1 cm x 1 cm going deep with blackening and burning on left side of abdomen 14 cm lateral to the abdominal line. 23 cm below the left nipple. Corresponding bullet was found in the subcutaneous tissue of interior abdominal wall.
(vii) Fire arm entry wound 2 cm x 2 cm on left abdomen 7 cm lateral to injury No, 6 with blackening and burning. Corresponding bullet was found in the subcutaneous tissue of interior abdominal wall.
(viii) Fire arm entry wound 2 cm x 1 cm with blackening and burning going deep on the lateral side of the left upper chest. B/B was found in the mediastinum.
(ix)Fire arm entry wound 2 cm x 1 cm with B/B going deep on the lateral side of left upper abdomen. Corresponding bullet was lost in viscera.
(x) A fire arm 12 x 5 cm entry wound on the back of left elbow joint.
(xi) Corresponding fire arm exit wound 9 cm x 4 cm on the front of left fore arm. 10 cm below the elbow joint.
(xii) Fire arm entry wound 1 cm x 1 cm going deep on the left buttock.
(xiii) Corresponding fire arm exit wound 3 cm x 2 cm on the inner side of left thigh 6 cm above the knee joint. The bullet was found entangled in the wound. The bullet fractured the neck of left femur.
In the opinion of doctor all the injuries were fatal, however, Injury No,1 which caused skull fracture and protrusion was sufficient in the ordinary course of nature to cause immediate death. Time between injuries and death was immediate and between death and post mortem was about 10 hours. The doctor recovered four bullets from underneath the injuries.
6. After registration of F.I.R. (Exh.PF) Riaz Ahmad, Inspector (P .W.12) reached the spot and conducted formal investigation. During spot inspection he collected 11 empties (P.3/1-11) of .222 rifle and one empty cartridge (P.4) of .12 bore gun. He also took into possession a Massy tractor available at the place of occurrence. Ehsan Ullah, appellant was not traceable as such the investigator got him declared proclaimed offender. On 1-8-2000 he arrested the appellant and his co-accused. During interrogation the appellant made disclosure and then led to the recovery of .12 bore gun (P.5) which was seized by the investigator. After completion of investigation the accused were challaned to Court to face trial.
7. At the commencement of trial, charge was framed against the accused persons. However case of the co-accused being juvenile was separated and trial commenced against the appellant. He pleaded not guilty and claimed trial. At trial the prosecution produced as many as 12 witnesses to prove charge against the appellant.
8. After completion of prosecution evidence, the same was put to the appellant. He dismissed each and every piece of prosecution evidence, attributed his false involvement to enmity and claimed innocence. The appellant, however, neither enter the witness box under section 340(2), Cr.P.C. nor produce evidence in defence. At the end of trial, the learned trial Court convicted and sentenced the appellant as noted above.
9. Learned counsel for the appellant submits that the occurrence took place at 11-30 a.m. on the Dera jointly owned by the complainant party and the appellant party and the matter was shown to be reported at 12-30 p.m. in the police station which was only 1.5 kilometers away from the place of occurrence. Learned counsel contends that in fact after receiving information about the occurrence the register of F.I.Rs, was kept pending and later on time of report was fabricated.
Learned counsel elaborates his contention by saying that post mortem was conducted at 10-00 p.m. and no reason for such a delayed post mortem was given in spite of claim of the prosecution that the dead body had reached the hospital at 3-00 p.m. along with the relevant papers and non- explanation of such a delay in post mortem examination indicates that the police papers had not been received in the hospital till night which circumstance leads to infer that the police papers were prepared after consultation and deliberation. While discussing the matter regarding ocular account it is stated that the complainant was brother of the deceased and the other witness Mst.
Perveen (P.W.8) was widow of the deceased. They were closely related to the deceased and no independent witness was produced. Learned counsel submitted that one Taj Din who was comparatively independent witness was given up as unnecessary. Learned counsel contended that the eye-witnesses could not account for their presence at relevant time at the place of occurrence. P.W. 8 tried to introduce her story that she came to Dera along with meals for the deceased and the servant but during spot inspection no such utensils were found by the investigator and in any case they were chance witnesses and there statements cannot/should not be relied upon without any independent corroboration coming from unimpeachable source which is lacking in the present case. Learned counsel contends that medical evidence in this case does not support the ocular account rather contradicts the same. In the F.I.R. it was mentioned that the appellant fired at the deceased while he had fallen after receiving injuries at the hands of co accused and only one fire was made by the appellant and the same was statedly fired from a distance of more than six feet but the presence of blackening around injuries belies the eye- witness account; that the appellant was statedly armed with .12 bore gun but dimension of injuries indicate that the same could not be result of gun fire made from six feet especially when the distance between different entry wounds was much larger; that the doctor found 13 injuries on the dead body out of which four were exit wounds and from underneath three injuries bullets were recovered and in respect of one injury the doctor stated that the bullet was lost in viscera which indicate that the injuries were result of fires made by rifle and not by a gun and this fact was admitted by the doctor during cross-examination that Injuries Nos. 2 to 13 could be the result of one firearm and that no pellet was recovered from any injury. . Injury No,1 was on the head which was specifically attributed to the co-accused. It is contended that the witnesses have tried to improve their statements while appearing in court to bring the same in line with the medical evidence. The complainant stated in the F.I.R. that the fire was made on the deceased while he was lying and hit him on his front chest and abdomen but after the post mortem examination as he became aware that the injury on front of chest was exit wound he changed his version while appearing at trial and stated that the fire made by the appellant hit the deceased on different parts. Similarly P.W.8 stated while appearing in Court that the appellant made fire when the deceased was in standing position and she was duly confronted in this respect with her statement under section 161, Cr.P.C. It is contended that evidence of such witnesses was not worth reliance. Learned counsel contends that so far as recoveries are concerned 11 crime empties of .222 rifle and one crime empty of .12 bore gun was recovered and the appellant was statedly . armed with .12 bore gun. The crime empty of .12 bore gun was sent to the fire arm expert for comparison with the gun recovered from the appellant and it was reported that the said crime empty had not been tired from this .12 bore gun and thus the recovery did not support the prosecution case. Learned counsel contended that the prosecution itself claimed that the appellant was armed with double barrel gun and presence of empty belies this version in absence of any evidence that the appellant had reloaded the gun at the spot. It was stated that even otherwise the same has been discarded by the trial Court so this is a case in which the medical evidence and the recovery do not support the prosecution case and do not corroborate version of chance witnesses. The motive put forward by the prosecution in F.I.R. was not later on proved and as such the same was discarded by the trial Court. Learned counsel contends that as the motive was specifically alleged in the F.I.R. so it was duty of the prosecution to prove the same and for any lapse in this respect the prosecution should suffer. Learned counsel submits that in absence of any corroboration from any other source the ocular evidence is not worth reliance. So far as abscondance of the appellant is concerned, learned counsel submitted that proceedings of absconsion were not done in accordance with law and even otherwise two months time is not enough to establish that the appellant intentionally remained absconder. Lastly learned counsel contended that it was duty of the prosecution to prove the case which has not been properly done and the appellant is entitled to clean acquittal.
10. Conversely the learned Deputy Prosecutor-General assisted by the learned-counsel for the complainant argued that present occurrence took place in broad day light and the parties were previously known to each other as such there was no chance of mistaken identity; that the occurrence took place at 11-30 a.m. and the F.I.R. was recorded within one hour meaning thereby :hat the F.I.R. was lodged with promptitude; that the Dera was jointly owned by the complainant party and the accused party as such presence of the eyewitnesses at the place of occurrence was natural; that recovery of tractor of appellant from the place of occurrence after the deceased was done to death is a circumstance which indicate that the appellant was present at the time of occurrence so the version of the witnesses gets support from this circumstance. Learned Law Officer stated that previously there was no dispute between the parties and only an altercation took place a day earlier between the parties about the peter engine which was jointly owned by both the parties as such presence of peter engine at the spot also proves the motive against the appellant; that recovery of crime empty of .12 bore gun along with 11 empties of .222 rifle indicate that at least two persons were involved in this occurrence. The prosecution case also indicates that it was the appellant and his son who had fired at the deceased. It was also argued that recovery of weapon from the appellant also supports the prosecution case. It is contended that in this case only ocular account is sufficient for conviction of the appellant. The F.I.R. was registered just after one hour of the occurrence at the police station in which both the accused were duly nominated with specific role of firing at the deceased'. Presence of P.W.8 was well established as it has been brought on record that she had gone to the Dera along with meals and such a circumstance is a usual practice in rural areas. The complainant was a co-sharer in the same land so even his presence at the place of occurrence is also natural. The learned Law Officer while discussing the improvements made by the prosecution witnesses at trial states that such discrepancies must have arisen because of lapse of time. He conceded that it was not apparent as to which fire shot could be said to be the result of .12 bore gun but at the same time contended that it was not proved that all the injuries were result of bullets. He further contended that even if there were discrepancies in the medical evidence, it was not substantive piece of evidence and was only a supportive evidence and if the ocular account is worth reliance, these discrepancies were not fatal to the prosecution case. Learned Law Officer submitted that the appellant absconded after the occurrence and was as such declared proclaimed offender and this is a strong circumstance to indicate that the appellant was fully involved in the occurrence. The learned counsel lastly emphasized that the co-accused was minor son of the appellant and he acted under influence of the appellant. Motive was assigned to the appellant and his presence at the place of occurrence has been established by the eye-witnesses so the appellant was the principal accused as such he does not deserve leniency and furthermore that even if there were contradictions between medical evidence and the ocular account the appellant does not deserve clean acquittal and at the most it can be considered a mitigating circumstance.
11. We have heard the learned counsel for parties and have also gone through the record.
12. The present occurrence took place at 11-30 a.m. so it was a broad-daylight occurrence. Place of occurrence is thorough fare just in front of the Dera which was jointly owned by both the parties.
Admittedly there was no dispute between the parties except the alleged brawl which had taken place a day earlier on account of peter engine which was in their common use. The complainant was brother of the deceased whereas Mst. Perveen P.W.8 was widow of the deceased. The appellant along with his son Zaka Ullah were nominated in the F.I.R. as accused persons for causing death of Tariq Mahmood. No one else received any kind of injury in this occurrence. So this is a case in which there was no previous enmity in existence between the parties and similarly this is a case in which identity of the accused cannot be considered as a point in issue. There are certain other circumstances which have been kept in mind while deciding this case. From the place of occurrence a tractor was taken into possession by the police stated to be the property of the appellant. Similarly the police took into possession 11 crime empties of .222 bore rifle and one empty of .12 bore gun. Later on a gun was recovered from the appellant and was sent to the Fire Arm Expert for comparing the same with the crime empty recovered from the spot and the report is negative. The co- accused was declared juvenile and as such separately tried and convicted and we have been informed that he has already undergone his sentence. The prosecution case mainly rests upon the statements of the two eye-witnesses. Their presence at the place of occurrence has been duly explained. The complainant was also having share in the same land so his presence at the time of occurrence can be explained. Similarly P.W.8 the widow of the deceased while appearing in Court has given reasonable explanation for her presence at the place of occurrence.
She stated that she had gone to the Dera along with meals for her husband and the servant. The most important evidence which is to be microscopically examined for deciding this case is the medical evidence. It has been brought on record through evidence of Zulfiqar Ali Constable (P.W.10) that after the occurrence the dead body was received in the hospital at 3-00 p.m. If this stance of the prosecution story is taken as correct then question arises as to why post mortem was conducted at 10-00 p.m. and was delayed by seven hours. Although Zulfiqar Ali (P.W.10) claimed that when the dead body was taken to the hospital police papers were also accompanying and tried to cover up the delay in post mortem by stating that the doctor was not available in the hospital but at the same time he disclosed that another doctor was available in the hospital.
Furthermore the post mortem examiner did not claim that since he was not available in the hospital as such the autopsy could not be performed rather he clarified the position by disclosing in cross- examination that he received police papers 15 minutes before start of post-mortem examination. Thus there appears to be weight in the contention of the learned counsel for the petitioner that in fact delay in post mortem had occasioned because police papers were not prepared and time was consumed to fabricate a case against the appellant and for that reason post mortem was conducted at much belated stage. The other thing is that the post mortem examiner observed 13 firearm injuries on the dead body. Injury No, 1 was on the head and it was of such a nature that portion of the skull was shoved off. Nothing was recovered underneath this injury which was specifically attributed to co-accused Zaka Ullah by both the witnesses. The doctor observed that four injuries were having their corresponding exit wounds. Out of the remaining four injuries the doctor had recovered four bullets. The post mortem examiner admitted that no pellet was recovered' from any injury. He frankly conceded that Injuries Nos.2 to 13 were not caused by pellets fired by .12 bore gun. Although he admitted that he was not a fire arm expert but at the same time claimed that he knew the difference between pellet and bullet injuries. He also conceded that Injuries Nos. 2 to 13 could be the result of fire shots by single weapon. The next point to be considered is that in the F.I.R. it was specifically stated that after the deceased had fallen down after receiving injuries at the hand of the co-accused the appellant fired a shot with his .12 bore gun hitting him on the chest and abdomen. Although there was an Injury (No, 3) on the chest but the same was declared by the doctor to be exit wound of Injury No,2 caused by firearm on the back of chest. Likewise there was also an injury on the abdomen but during autopsy the doctor recovered a bullet from underneath this injury. Thus the role attributed to the appellant by the witnesses does not get support from the medical evidence. Furthermore the doctor observed blackening and burning around the wounds. It was never the case of the prosecution that the assailants made firing from a very close range. Rather at' one stage the prosecution claimed that firing was made from a distance of more than six feet. Even otherwise if a shot is fired from a .12 bore gun from a close range it cannot be expected that the pellets of a cartridge will so spread that they would simultaneously hit the chest and the abdomen. It is also noteworthy that the doctor had observed blackening on the Injury (No, 2) on the . "back of chest so it is clear that the said injury was entry wound and the injury on the chest was corresponding to the said injury so it was exit wound of the fire made on the back. Likewise the injury on the abdomen was also having blackening. So presence of blackening on these injuries make it clear that the same were result of two different fire shots. Both these injuries were caused from a very close range and no witness can state mistakenly that the same were result of same fire. Furthermore a bullet was recovered from underneath the injury on the abdomen. Therefore, this injury by no stretch of imagination can be called the result of fire shot by a .12 bore gun. The doctor admitted that the injuries were the result of bullets so the possibility that all the injuries were result of single weapon cannot be ruled out. So this major contradiction in the ocular account and medical evidence is fatal to the prosecution case so far as the appellant is concerned.
Keeping in mind these contradictions one can well understand the improvements made by the witnesses at trial. The other circumstance to be noted is that the witnesses categorically stated that the appellant was armed with .12 bore gun and had fired a shot hitting the deceased. During spot inspection the investigator collected from the place of occurrence a crime empty of .12 bore gun along with 11 empties of .222 rifle. It was never the case of the prosecution that the appellant reloaded the gun. Thus availability of crime empty of .12 bore at the place of occurrence appears to be a strange circumstances. But when we minutely examine the inquest report (Exh.PN) and even the rough site plan (Mark-A) the position becomes crystal clear as there was no mentioning of presence of any empty of .12 bore gun at the place of occurrence which was purportedly sent to the fire arm expert. During investigation a .12 bore gun (P.5) was recovered from possession of the appellant and sent to the Fire Arm Expert and it was reported by the F.S.L. that the crime empty (P.4) had not been fired from the .12 bore gun (P.5). So even this circumstance creates dent in the prosecution case. In the F.I.R. and even in their statements under section 161, Cr.P.C. the eye- witnesses stated that on receiving fire shots made by the co-accused the deceased fell on the ground and thereafter the appellant fired a shot with his .12 bore gun which hit on, the chest and abdomen of the deceased. As discussed earlier, the injury on the chest was an exit of the fire made from the back. While appearing in Court the complainant changed his version and stated that the fire made by the appellant hit on different parts of the body of the deceased. Likewise Mst. Perveen (P.W.8) changed her version at trial and deposed that the first fire was made by the appellant while the deceased was in standing position and then the other fire hit the other part of his body. Such a change in the version of the prosecution witnesses leads to infer that these witnesses have tried to make up deficiencies to bring the case in line with the medical evidence. It has been held by the Hon'ble Supreme Court in Akhtar Ali and others v. The State (2008 SCM R 6) that when the witnesses change their statements in order to strengthen the prosecution case their improved statements subsequently made cannot be relied and their credibility becomes doubtful on the principle of criminal jurisprudence that improvements once found deliberate and dishonest cause serious doubt on the veracity of such witnesses. Presence of tractor at the place of occurrence can be explained as to have been brought by the co-accused. Similarly there is possibility that all the injuries were caused by the co-accused who was son of the appellant. The presence of crime empties of .222 rifle and presence of bullet injuries on the dead body supports this conclusion of ours. The motive culminating into the present occurrence was specifically mentioned in the F.I.R. but at trial no witness was produced to establish the incident of motive. Hence the same cannot be considered to be properly proved. We are aware that mens rea is always in the mind of the accused and it is not necessary that there must be some known motive for the occurrence but once the motive is alleged the prosecution is obliged to establish the same and if failed it should suffer consequences. In this regard we are fortified by the dictum laid down by the Hon' ble Supreme Court in Noor Muhammad v. The State and another (2010 SCM R 97) and Hakim Ali v. The State (1971 SCM R 432). The learned counsel for complainant has contended that at earlier stage the appellant took the defence of alibi but did not prove the same while appearing in Court. It is the golden principle of criminal law that accused is a favourite child and he can take different stands at different stages. Onus to prove the case remains on the prosecution and the version of the accused can be considered if the prosecution case is found false or the case of the accused is brought under general exceptions. In the given circumstances, we think that non-production of any evidence in respect of alibi by the appellant cannot be considered as a circumstance going against him. The next contention of the learned counsel for the complainant that the appellant remained fugitive from law for two months after the occurrence is also not well-founded. It is not unknown that even innocent persons when involved in such a case try to keep away from the law and as such absconsion of the appellant for two months cannot be considered as a circumstance leading to his involvement.
13. The net result is that in this case the medical evidence, the recoveries, the report of F.S.L. and the motive do not support the ocular account provided by the eye-witnesses so far as the appellant is concerned. It is universally accepted principle that men may tell a lie but circumstances cannot. So the ocular account alone cannot be considered sufficient for conviction of the appellant. We are also aware of the fact that it is trend in our society that maximum number of family members of the accused persons are involved by spreading the net so wide. Falsus in uno, falsus in omnibus is a maxim not attracted in our society and the courts of country have always applied the principle of sifting grain from the chaff. The appellant was head of the family and father of the other co- accused so his false involvement cannot be ruled out. So we are of the affirm view that the prosecution has not been able to prove the case against the appellant beyond reasonable doubt.
So while extending benefit of doubt the appellant is entitled to clean acquittal.
14. Consequently, Criminal Appeal No, 88-J of 2005 is accepted, conviction and sentence awarded to Ehsan Ullah, appellant are set aside and he is acquitted of the charge. He be set at liberty forthwith if not required to be detained in any other case.
15. Since Ehsan Ullah convict has been acquitted of the charge of murder, as such there is no question of confirmation of sentence of death awarded to him by the learned trial court. Murder Reference No,404 of 2005 is, therefore, answered in negative.