JUDGMENT SA YYED MAZAHAR ALI AKBAR NAQVI, J.---Through this single judgment I intend to dispose of Criminal Appeal No.155-J of 2007 tiled by the appellant and Criminal Revision No.489 of 2007, filed by the complainant as both are arising out of one and the same judgment of the learned trial Court passed in one and the same F.I.R.
2. Muhammad Tanveer son of Allah Baklish, caste Thabal, resident of Chak No.1SB Tehsil Bhalwal, District Sargodha appellant along with was involved in case F.I.R. No.174 of 2004, dated 7-8-2004, offence under sections 302, 324, 148, 149, P.P.C., registered at Police Station Phularwan, District Sargodha and was tried by learned Additional Sessions Judge, Bhalwal, who vide judgment dated 23-2-2007, convicted the appellant as under:--
(i) Under sections 148, 149, P.P.C., sentenced to 3 years' R.I. With a fine of Rs.10,000, in default whereof 3 months' S.I.
(ii) Under sections 449/149, P.P.C., sentenced to imprisonment for life with a fine of Rs.50,000, in default whereof six months' S.I.
(iii) Under sections 302(b)/149, P.P.C., sentenced to imprisonment for life as Tazir, with direction to pay Rs.1,00,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of deceased, in default whereof six months' S.I.
(iv) Under sections 324/149, P.P.C. Sentenced to 7 years' R.I. With fine of Rs.20,000, in' default whereof six months' S.I.
(v) Under sections 337-L(2)/149, P.P.C. Sentenced to 2 years' R.I. As Tazir with direction to pay 50,000 as daman to injured P.W., in default whereof, he shall be kept in imprisonment till the realization of the amount of daman.
(vi) Under sections 337-F(i)/149, P.P.C., sentenced to 1 year as Tazir with direction to payment of Rs.10,000 as Daman.
(vii) Under sections 337-F(ii), 149; P.P.C., sentenced to 2 years' R.I. As Tazir with direction to pay Rs.20,000 as Daman, in default whereof, he shall be kept in imprisonment till the realization of the amount of Daman.
(viii)Benefit of section 382-B, Cr.P.C. Was also extended to the appellant and all the substantive sentences were ordered to run concurrently.
3. The appellant has assailed the judgment of learned trial Court through filing Criminal Appeal No.1554 of 2007 whereas Muhammad Khan, complainant (P.W.10) preferred Criminal Revision No.489 of 2007 seeking enhancement in sentence inflicted upon the appellant.
4. The prosecution story as alleged in the F.I.R. (Exh.PO) lodged on the complaint (Exh.PO/1) of Muhammad Khan (P.W.10) is that he is a cultivator. On the 'fateful night i.e. 7-8-2004 he along with his son Muhammad Hayat, Mazhar Hayat son of Haq Nawaz, caste Awan, resident of Chak No.58/NB, Muhammad Ameer son of Muhammad Anwar resident of Chak No.1SB, Thal, who had come to his house, were sleeping in the haveli of the complainant. At 3-00 a.m. (night) Muhammad Farooq and Muhammad Amer son of Allah Bukhsh along with their younger brother and four unknown persons while armed with firearms entered the haveli of the complainant by way of scaling. Over the northern wall, who were identified in the light of bulb. Muhammad Ameer along with two unknown persons went towards the cot of complainant and aimed his weapon towards him. Muhammad Farooq and his brother along with unknown persons encircled the cot of Muhammad Hayat (deceased) and they aimed their weapons towards him and said that they had come to teach a lesson for registration of case against them. Muhammad Farooq fired with his rifle 8mm, which hit Muhammad llayat on his back near the right shoulder. Thereafter Muhammad Ameer accused made a fire. With his rifle, which hit the complainant at the spindle of his right leg.
Third fire was made by brother of Farooq, which hit the complainant on the wrist of his right. Hand.
When the complainant in an injured condition reached near the cot of Muhammad Hayat then unknown person, who was armed with Churra gave a blow at the neck of the complainant. The complainant and others tried to attend Muhammad Hayat but he had succumbed to the injuries.
On hue and cry, the accused persons fled away from the place of occurrence while making indiscriminate firing. The complainant and other P.Ws. Witnessed the occurrence in their eye view.
5. Motive behind the occurrence as per prosecution story is that some time prior to the occurrence Muhammad Farooq had stolen the motorcycle of the complainant and a case was registered due to which Muhammad Farooq etc. Made firing upon the complainant as a result of which Nazir alias Kaloo son of Noor Muhammad was murdered. Due to said reason all the accused persons in connivance with each other entered the house of the complainant and they made murderous assault upon him and committed murder of his son namely Muhammad Hayat.
6. On 7-8-2004 Muhammad Afzal, S.-I. (P.W.13) after receiving the information about the incident reached the place of occurrence, recorded the statement of complainant (Exh.PO/1), which was read over to him, who signed the same in token of its correctness. Complaint (Exh.PO/1) was sent to the police station through Abid Hussain 1580/C for registration of formal F.I.R. (Exh.PO).
7. After registration of case Burkhurdar S.-I. (P.W.12), Investigating Officer proceeded to the place of occurrence, inspected the dead body, prepared injury statement (Exh.PB), inquest report (Exh.PC) and handed over the dead body to Muhammad Yaqoob 889/C for escorting the same to the mortuary. The Investigating Officer secured blood-stained earth from the place of occurrence vide recovery memo Exh.PK. The Investigating Officer also prepared rough site plan (Exh.PQ) of the place of occurrence. After the postmortem examination, the said constable produced lost worn clothe of deceased Muhammad (P-1), which was taken into possession by the Investigating Officer vide recovery memo Exh.PJ. On 12-8-2004, the Investigating Officer recorded supplementary statement of Muhammad Khan, complainant at Civil Hospital, Phularwan in which he nominated Muhammad Tanveer (appellant) son of Allah Bukhsh as one of the accused. On the direction of Investigating Officer and pointing out of the P.Ws., Muhammad Hafiz, draftsman (P.W.6) prepared scaled site plan of the pcpc as Exh.PN, Exh.PN/1. On 15-11-2005 Burkhurdar S.-I., Investigating Officer submitted an application before Illaqa Magistrate, Mandi Baha-ud-Din for custody of Tanveer accused as he was arrested and was in judicial custody in case F.I.R. No.208 of 2003, offence under section 324, P.P.C., registered with Police Station Miana Gonda. On 16-11-2005, custody of Tanveer, appellant, was handed over to the Investigating Officer, who obtained physical remand of the appellant. On 20-11-2005, Investigating Officer recovered revolver (P-2) along with five live cartridges (P-3/1-5) on the disclosure and pointing out of Tanveer, appellant from a deserted Tubewel in the area of village Thabal, which the Investigating Officer took into possession vide recovery memo Exh.PP. The Investigating Officer also recorded the statements of prosecution witnesses under section 161, Cr.P.C.
8. During the course of investigation, the Investigating Officer found the appellant guilty and submitted report under section 173, Cr.P.C, to the court of competent jurisdiction, which was en- routed through Illaqa Magistrate as provided under section 190(2), Cr.P.C.
9. Initially challan against Muhammad Tanveer, appellant, Muhammad Farooq and Muhammad Ameer co-accused was submitted under section 512, Cr.P.C. When the learned trial Court summoned the accused persons to face the trial, it was reported that Muhammad Ameer and Muhammad Farooq, accused have been killed in police encounter. On the receipt of supplementary challan to the extent of Tanveer, appellant, the learned Additional Sessions Judge; Bhalwal vide order dated 13-6-2006, framed charge against the appellant. The accused pleaded not guilty and claimed trial. Prosecution in order to substantiate its case, produced as many as 13 witnesses.
10. Ocular account in this case has come out from the statements of Muhammad Khan, complainant (P.w10.) and Mazhar Hayat (P.W.11). Muhammad Hafeez, draftsman (P.W.6.) had prepared scaled site plan (Exh.PN) and (Exh.PN/1).
Burkhurdar, S.-I. (P.W:12) and Muhammad Afzal S.-I. (P.W.13) are the Investigating. Officers of this case. Dr. Shahid Majeed, Medical Officer, R.H.C. Phularwan (P.W.1) had conducted the postmortem upon the dead body of Muhammad Hayat, deceased and found following injuries on his person:-- "(1-A) A lacerated wound 1/2 cm into going margin inverted blackish was present on the back and right side near inferior border of right scapula region.
(1-B) A lacerated wound 1 cm x 1 cm into margin everted on the left outer aspect of left flank."
After conducting postmortem examination, the doctor arrived at the following opinion:-- "In my opinion, death in this case occurred due to excessive haemorrhage and Shock under Injury No.1 which was ante-mortem and was sufficient to cause death in ordinary course of nature. The time between death and injury was immediate while time between death and post mortem was within six hours."
Statements of rest of the prosecution witnesses are formal in nature.
11. On 8-1-2007 and 22-2-2007 the learned Deputy District Attorney while making separate statements without oath, gave up Shabbir Hussain 275/C, P.W., being unnecessary, Muhammad Ameer and Muhammad Nazir being dead. Vide his statement recorded on 22-2-2007, the learned DDA, after tendering in evidence the report of Chemical Examiner (Exh. PR) and report of Serologist (Exh. PS), closed the prosecution evidence.
12. Muhammad Tanveer, appellant was examined under section 342, Cr.P.C; wherein he opted neither to appear under section 340(2), Cr.P.C. As a witness of his on to, disprove the allegations levelled against him nor to produce defence evidence. In response to the question why the case is against him and why the P.Ws. Deposed against him, the appellant made the following deposition:- - "All the P.Ws. Are closely related inter se and they are inimical towards me in fact some unknown persons have committed the murder of Muhammad Hayat but due to previous enmity I and my family members were involved in this case just to satisfy the personal grudge by the complainant."
13. After hearing the advanced by the learned counsel appearing on behalf of both the parties, the learned, trial Court, while evaluating the evidence available on record, found the version of the prosecution correct beyond any shadow of doubt, resulting into conviction of the appellant in the above terms.
14. Learned counsel for the appellant submitted that the appellant was not nominated in the F.I.R., the occurrence of which took place at dark odd hours, who was arrayed as an accused through supplementary statement recorded after seven days of the occurrence after due deliberations and consultations. The complainant nevertheless had mentioned that the appellant was brother of Muhammad Farooq accused, however, the appellant are four brothers and no body description was mentioned specifically. It is urged by learned counsel for the appellant that even otherwise supplementary statement cannot be equated with the F.I.R. As per dictates of law. It is argued that the complainant has spread a wider net as three real brothers have been involved in the case.
Moreover, motive is not attributed to the appellant. Learned counsel went on arguing that the appellant was allegedly armed with gun.12-bore, however, during the course of investigation revolver was recovered on his pointing out, which squarely belies the prosecution version. Learned counsel further stated that medical evidence does not help the prosecution qua its case against the appellant as alleged in the F.I.R. Because it is mentioned therein that the appellant inflicted injury upon the complainant with firearm, whereas, in the MLR and the statement made by doctor before the learned trial Court reveals that No.2, assigned to the appellant, is sulk, of tilunt weapon.
Learned counsel submitted that in the crime report no injury at the person of Muhammad Hayat deceased was attributed having been inflicted by the appellant, however, during the course of trial, dishonest improvements were made. Learned counsel stated that in such circumstances of the case, evidence of the prosecution witnesses of ocular account, who admittedly are interested witnesses being close relatives of the complainant, is not believable. Learned counsel vehemently, emphasized that there are material discrepancies and glaring contradictions in the statements of the P.Ws. And medical evidence, which fact of the case escaped notice of the learned trial Court.
Learned counsel lastly submitted that prosecution failed to prove its case against the appellant beyond shadow of reasonable doubt, therefore, the appellant should be extended benefit of doubt and his ultimate acquittal from the charge.
15. As against above, learned D.P.-G. Assisted by learned counsel for the complainant has vehemently opposed the contentions raised on behalf of the appellant. It is argued that the F.I.R. Is promptly lodged and though the appellant is not named in the same, however, he was mentioned as brother of Muhammad Farooq. It is argued that complainant himself sustained injuries at the hands of accused persons, who has fully involved the appellant in the occurrence, therefore, presumption of truth is attached to such statement of the complainant. Moreover, as the complainant himself sustained injuries, therefore, it cannot be said that he was not present at the place of occurrence. Moreover, the place of occurrence i.e. Haveli is owned by the complainant, therefore, presence of the prosecution witnesses at the place of occurrence is natural. Learned counsel for the complainant vehemently stressed that prosecution witnesses qua ocular account remained coherent regarding salient features of the prosecution case, therefore, their statements could not be smashed. It is argued that though there are minor contradictions in the statements of the prosecution witnesses but these are natural and do not shatter their deposition at all. It was lastly argued that the appellant also remained absconder. While arguing. Criminal revision petition, learned counsel for the complainant has argued that prosecution through leading cogent and confidence inspiring evidence has rightly proved its case against the appellant beyond iota of reasonable doubt, who is not entitled to any leniency rather deserves maximum punishment provided under the law.
16. Arguments advanced from both sides have been heard. I have also gone through the record available on file with the able assistance of learned counsel for the appellant, learned counsel for the complainant as well as learned Deputy Prosecutor-General.
17. As per prosecution on version the occurrence had taken place at odd hours and name of the appellant also does not figure in the who was arrayed as an accused through supplementary statement recorded after seven days of the occurrence. The complainant nevertheless had mentioned that the appellant was A brother of Muhammad Farooq accused, however, the appellant are four brothers and no body description was mentioned specifically with regard to present appellant. Even otherwise supplementary statement cannot be equated with that of crime report as F.I.R. Is the document, which is entered into the book maintained at the Police Station at the complaint of the A informant and brings the law into motion, whereby police starts investigation of the case under section 156, Cr.P.C. Any statement or further statement of the first informant recorded during the investigation by police would neither be equipped with First Information Report nor read as part of the same. Reliance is placed on the cases of Noor Muhammad v. The State (2008 SCM R. 1556), Falak Sher alias Sheru v. The State (1995 SCM R 1350), Khalid Javed and another v. The State (2003 SCM R 1419).
18. Contents of F.I.R. When juxtaposed with the supplementary statement reveal that injury ascribed to the appellant is on the person of complainant and it was alleged that the appellant was armed with gun.12 bore; however, revolver was recovered on his pointing out. Moreover, as per MLR, injury ascribed to the appellant is result of blunt weapon. The complainant, during the course of trial, had also attempted to make dishonest improvement by way of assigning injury to the appellant on the person of Muhammad Hayat deceased. All these facts when put side-by side not only shake medical evidence but also create serious dents on the ocular C account. Moreover, motive is not attributed to the appellant. In such circumstances of the case, evidence of the prosecution witnesses of ocular account, who admittedly are interested witnesses being close relatives of the complainant, is not believable. It was vehemently emphasized by learned counsel for the complainant that being an injured witness the complainant is presumed to be present at the place of occurrence and truth is also attached to his deposition, however, in view of contradiction in his statement discus d above, I am of the considered view that its deposition has created reasonable dent in the prosecution version.
19. So far as contention of learned counsel for the complainant that the appellant remained fugitive from law, therefore, is not entitled to any leniency is concerned, suffice it to say that it has been the consistent view of the superior courts of the country that otherwise if the accused is entitled to such relief, absconsion does not come in the way for granting such relief. Reliance is placed on ratio decidendi of august Supreme Court of Pakistan in the case of Mitho Pitafi v. The State (2009 SCM R 299).
20. Upshot of above discussion is that the prosecution case is full of material contradictions/discrepancies especially in the testimony of complainant and the medical evidence, which shatters the prosecution case to the hilt. Resultantly, the salutary principle of benefit of doubt is extended in favour of the appellant as a consequence, whereof; Criminal Appeal No.155-1 of 2007 is accepted in toto. Conviction and sentence recorded in the judgment of the learned trial Court passed on 23-2-2007 is set at naught. The appellant' is directed to be released forthwith if not required in any other case.
21. So far as Criminal Revision No. 489 of 2007 filed by Muhammad Khan complainant for enhancement of sentence of the appellant from imprisonment for life to death sentence is concerned, for the reasons afore-stated, the same is devoid of any force, which is accordingly dismissed..