JUDGMENT MUHAMMAD ANWAARUL HAQ, J.---Mushtaq Ahmad alias Mustafa son of Allah Ditta was tried by learned Sessions Judge, Okara for committing Qatl-e-Amd of R.I Umar Hayat in case F.I.R.
No.417, dated 22-9-2003, offences under sections 302, 148, 149, P.P.C., registered at Police Station Chuchak, District Okara. At conclusion of the trial, the learned trial Court vide judgment, dated 14-2- 2005 convicted and sentenced the appellant as under:--
(i) Under section 148, P.P.C. Sentenced to one year' R.I.
(ii) Under sections 302(b)1149, P.P.C. Sentenced to death. Appellant was also directed to pay compensation of Rs.1,00,000 (Rupees one hundred thousands only) to the legal heirs of the deceased under section 544-A, Cr.P.C. In default thereof to undergo six months' S.I.
2. Feeling. Aggrieved by the impugned convictions and sentences the appellant has filed Criminal Appeal No.445-J of 2006 whereas learned trial Court has transmitted a Reference (M.R. No: 97 of 2005) seeking confirmation of his death sentence. R.I. Shamsher Khan, complainant has filed Criminal Revision No.406 of 2007 for enhancement of compensation. All these matters being unified are disposed of through this single judgment.
3. Brief facts stated by the complainant R.I Shamsher Khan (P.W.5) in F.I.R. Are that on 22-9-2003 he along with Shaukat Ali and Muhammad Khan were sleeping in the veranda of his Dera whereas his son Umar Hayat (deceased) was sleeping at a distance of about 5/6 Karams in a gallery. At about 3.30 am he were up on the noise of footsteps and saw five persons, one of them armed with hatchet and others armed with firearms standing near the cot of Umar Hayat, accused armed with hatchet caused a blow, which hit his son on left side of the head, other accused started firing with their weapons and decamped from the place of occurrence while climbing over the back wall of the Dera. Complainant further stated that he could not identify the assailants but he would if see them again.
4. Complainant appeared in court as P.W.5, Improved his version stating therein that on the same day he made a supplementary statement before the I.O. And had nominated five accused including the appellant, he further stated that it was the appellant armed with hatchet who had inflicted the fatal blow on the head of his deceased son. He also stated the motive behind the occurrence was that one-week prior to the incident deceased had slapped Mushtaq alias Mustfa appellant and on that grudge accused had murdered his son.
5. Abdul Sattar S.-I. (P.W.8) after receiving application (Exh.PA) visited the spot, inspected the place of occurrence, secured blood stained earth, took into possession eight empties of .12 bore gun, fifteen empties of .7 mm rifle and five empties of .30 bore pistol from the spot. He also prepared rough site plan, inquest report and also recorded a supplementary statement of the complainant (not placed on record).
Noor Ahmad, S.-I. (P.W.9) arrested Mushtaq Ahmad appellant on 19-2-2004, appellant led to the recovery of hatchet (P.6), Police however, could not arrest the father and three brothers of the appellant and declaring them proclaimed offenders, submitted challan only against the appellant.
6. Dr. Ishtiaq Ali (P.W.7) conducted medical examination of R.I Umar Hayat on 22-9-2003 and found the following injury on his person:-- "An incised wound 61 cm x 3 cm deep, going Brain matter out of the wound on left temporal region of head 2 cm above the left ear.
He referred the injured to Lahore General Hospital but he succumbed to the injury."
On 9-10-2003 at about 11-30 pm he conducted postmortem examination on the dead body of the deceased and found the following injuries:--
(i) A healed wound 13 cm x 1/2 cm on left side of head.
(ii) An incised wound 3 cm x 1/2 cm in continuity of Injury No. 1.
In his opinion injuries were ante mortem caused by sharp edged weapon. Injury No.1 was sufficient to cause death in ordinary course of nature.
The probable time between injuries and death was within 17/18 days and between death and postmortem within six hours.
7. To substantiate the charge, prosecution has examined 9 witnesses out of which Dr. Ishtiaq Ali (P.W.7) provided medical evidence, ocular account was furnished by R.I Shamsher Khan complainant (P.W.5) and Shaukat Ali (P.W.6) Abdul Sattar, S.-I. (P.W.8) and Noor Ahmad, S.-I. (P.W.9) appeared as Investigating Officers of the case.
8. The learned District Attorney after tendering in evidence report of Chemical Examiner (Exh.PV) closed the prosecution evidence, accused was examined under section 342, Cr.P.C. He denied the allegations, while answering the question (why this case against you and why the P.Ws have deposed against you) Mushtaq Ahmad appellant replied as under:- "It is a false case. I used to serve with complainant party and I was not paid my wages due to which I left their service and due to that grudge I was falsely involved in this case at belated stage. At the time of occurrence Umar Hayat deceased was sleeping alone. He had many enemies and the occurrence was committed by some of his unknown enemy but I was falsely involved in this case due to the aforesaid grudge. The deceased had died due to the negligence of the Doctor in his treatment. After the occurrence the complainant party had called tracker dogs to trace out the real culprits who could not be traced out and as such I was falsely involved in this case. The P.Ws have deposed against me due to their enmity with me.".
9. The learned trial Court vide judgment dated 14-2-2005 found Mushtaq Ahmad guilty, convicted and sentenced him as mentioned above.
10. Learned counsel for the appellant contends that occurrence took place at 3-30 a.m. At night, inside the house of the deceased but case was registered at 10-25 a.m. i.e. After the delay of eight hours without any plausible explanation; that appellant is not nominated in the F.I.R that occurrence has taken place at dark hours of the night and no source of light has been mentioned in the F.I.R. Or in the site plan, while appearing in Court, eye-witnesses have dishonestly improved their case stating that an electric bulb was switched on at the place of occurrence; that deceased only received one injury and died after 18 days because of septicemia but no statement of the deceased or application of the Investigating Officer for getting opinion of the doctor that the deceased was not fit to make statement is available on the record, and as such non-recording of the statement of the injured makes the prosecution case highly doubtful; that appellant allegedly got recovered hatchet on 26-2-2004 from the village pond and the same was found not blood stained as such recovery of crime weapon is inconsequential; that prosecution alleged a dispute between the appellant and the deceased before the occurrence as a motive but no witness of that occurrence has appeared before the Court; that appellant belongs to a poor family whereas the complainant is a big landlord of the area and his brother was a sitting M.N.A. At the time of occurrence; that according to Medico Legal Report police brought the deceased to hospital and he was medically examined after four hours but the F.I.R. Was registered after a delay of eight hours, this situation indicates that if the accused were known to the complainant he could have mentioned their names; that no supplementary statement of the complainant was placed on record and even in the statement of the accused recorded under section 342, Cr.P.C. He was never asked regarding any supplementary statement of the complainant as such supplementary statement, if any, cannot be used against the appellant; that supplementary statement has got no legal value as observed by the Hon'ble Supreme Court of Pakistan; hat Muhammad Jameel S.-I.
Was given up by the prosecution who got prepared the site plan and partially investigated the matter as such investigation conducted, by him cannot be read against the appellant; that MLR of the deceased indicates that Shaban A.S.-I. Took the injured for medico legal examination after the occurrence but he was not produced by the prosecution; that Mark-A placed on record is a Progress Report submitted by Muhammad Jamil, S.-I./S.H.O. During the investigation wherein it was admitted that after the occurrence sniff dogs and foot prints trackers were also hired to know the real assailant that is enough to prove that occurrence was un-witnessed.
11. On the other hand, the learned Additional Prosecutor-General assisted by learned counsel for the complainant contends that prosecution's case is based on ocular evidence corroborated by medical evidence, motive and the recoveries; that both the eye-witnesses were residents of the same house, as such their presence at the place of occurrence is natural; that the witnesses are not inimical to the appellant and had no reason to falsely implicate him; that complainant was not mentally fit because of injury sustained by his son and as such he later on made supplementary statement in which he implicated the accused; that Abdul Sattar, S.-I. (P.W.8) appeared before the Court and stated that he had recorded the supplementary statement of the complainant on the same day at the place of occurrence; that Shoukat Ali (P.W.6) got recorded his statement at very same day at the spot and had named the appellant as an accused with the specific role of giving injury at the head of the deceased; that there are no material contradictions in the statements of the witnesses and there is no reason to disbelieve them; that non-availability of the report of the Serologist regarding blood stained earth was not necessary because place of occurrence was not disputed by the defence that human blood on the hatchet was destroyed by the appellant by throwing hatchet into the pond; that non-availability of the motive does not provide any support to the defence because motive is always hidden in the mind of the accused and it is not necessary that the witnesses must know the exact motive and that no reason for false implication of the appellant has come on record.
12. We have paid full attention to the arguments of the learned counsel for the parties and have perused the record.
13. First we shall examine the prosecution evidence regarding the presence of both the eye- witnesses at the time of occurrence, and to ascertain the same we lay emphasis on the following points:--
(i) Complainant claims that he had made a supplementary statement and we without going into the evidentiary value of the same have noticed that no such supplementary statement was made part of the file.
(ii) P.W.5 Father and P.W.6 a first cousin of the deceased claimed that they have seen the appellant along with his four other co-accused at the time of occurrence. In their statements in the court they admitted that they already knew the appellant being their co villager, and they had identified him in the light of an electric bulb, in addition to that they have attributed a lalkara to the accused to further strengthen their identity.
(i.e) Medico Legal Report, indicates that injured was examined at D.H.Q. Hospital, Okara at 7-00 am through Muhammad Shaban A.S.-I. But prosecution has not produced Muhammad Shaban A.S.-I.
During the trial that could explain that why he did not record the F.I.R. At 7-00 a.m.
(iv) Inquest report was prepared 18 days after the occurrence, even that does not contain the name of any of the accused and is silent about any supplementary statement of the complainant.
(v) Injury on the person of the deceased was very serious in nature, his brain matter was oozing out from the wound on the left temporal region, complainant and the other witnesses claimed to be present at the time of occurrence took him to the doctor after a delay of more than 3-1/2 hours.
In view of the above, reason advanced by the complainant that he was mentally upset and that's why he did not nominate the accused in the F.I.R. Is not convincing. Had the F.I.R. Lodge with promptitude we could accept the excuse of the complainant but in this case F.I.R. Was registered after a delay of either hours, that too in the shape of a written application to the Investigating Officer. It is also admitted in the F.I.R. That after issuing of the M.L.R. Injured had already been referred to the General Hospital, Lahore. We are of the considered view that had the complainant identified the real culprits at the time of occurrence he could mention their names in the F.I.R. And likewise if Shoukat Ali (P.W.6) knew the details of the accused he could definitely inform the complainant about the names of the culprits within those eight hours. We therefore hold that both the eyewitness were not present at the time of occurrence. Claim of that complainant that on account of his disturbed mental condition he could not mention the real facts in the F.I.R. Is just an afterthought, Hon'ble Supreme Court of Pakistan in the case of Khalid Javed and another v. The State (2003 SCM R 1419) has commented this common pretext of the witnesses in the following words:-- "It may be noted that for changing his version from Exh.P.O. To the version incorporated in supplementary statement Exh. DB the complainant had claimed allowance on account of his disturbed mental condition but without proving medically through expert evidence, therefore, it would be dangerous and against the interest of justice to accept his explanation without legal proof."
In the same esteemed judgment, honourable Supreme Court of Pakistan has emphasized the value of supplementary statement in the following words:-- "As far as supplementary statement of a complainant is concerned its value is not more than a statement under section 161, Cr.P.C. In this behalf reference may be made to the case of Falak Sher alias Shen v. The State (1995 SCM R 1350). In this report appellant Falak Sher was not nominated in the F.I.R. However, subsequently complainant involved him by making supplementary statement deposing therein that the unidentified person was appellant who had earlier served with him for two years and was on visiting terms. Accordingly he was put to trial and was convicted by the trial Court and sentenced the accused to life imprisonment. In appeal the Federal Shariat Court maintained the conviction and sentence: As such appellant and two others filed petition before this Court. Leave was, granted only to appellant Falak Sher whereas the same was refused to the co- accused. While evaluating the case of both the sides it has been laid down that F.I.R. Is the document, which is entered into 154, Cr.P.C. Book maintained at the police station at the complaint of the informant. It brings the law into motion. The police under section 156, Cr.P.C. Start investigation of the case. Any statement or further statement of the first informant recorded during the investigation by police would neither be equated with First Information Report nor read as part of it. Consequently it was held that as the name of appellant does not appear in the F.I.R.
Resultantly he was acquitted of the charge."
In the case of Akhtar Ali and others v. The State (2008 SCM R 6), almost in a similar situation, honourable Supreme Court while considering the delay in the F.I.R. And nomination of the accused in a supplementary statement of the complainant, observed as under:- "It is also an admitted fact that the F.1.R. Was lodged by the complainant after considerable delay of 10/11 hours without explaining the said delay. The F.1.R was also not lodged at police station as mentioned above. 10/11 hours delay in lodging of F.I.R. Provides sufficient time for deliberation and consultation when complainant had given no explanation for delay in lodging the F.I.R. It is enough time for complainant to fabricate the story even then the complainant did not nominate appellants and their acquitted co-convicts, therefore, possibility cannot be ruled out qua false implication of the appellants: It is also a settled law that delay of 10/11 hours in making F.1.R not explained leads to inference that the occurrence was unwitnessed. In the case in hand this fact is also established in view of supplementary statement and conduct of the eye-witnesses. It is also a settled law that unexplained delay in registration of F.I.R. Specially in the circumstances of the case creates lot of doubt qua the story of the prosecution."
14. Both the eye-witnesses had improved their case introducing an electric bulb, switched on, at the time of occurrence but this fact has not been mentioned in the F.I.R. Or in the site plan prepared by the investigating officer at the time of his first visit. Dishonest improvements made by the witnesses in their statements make their credibility further doubtful and their evidence can not be relied upon we, very respectfully referring the case of Akhtar Ali and others v. The State (2008 SCM R 6) wherein Hon'ble Supreme Court of Pakistan has observed as under:-- "It is also a settled maxim when a witness improves his version to strengthen the prosecution case, his improved statement subsequently made cannot be relied upon as the witness has improved his statement dishonestly, therefore, his credibility becomes doubtful on the well known principle of criminal jurisprudence that improvements once found deliberate and dishonest cast serious doubt on the veracity of such witness."
15. The deceased had expired in this case after 18 days but there is no opinion of any doctor on the record that he was not fit to make statement. Investigating Officer (P.W.8) has stated that he made an application in this regard before Dr. Ishtiaq Ali (P.W.7) but neither that application is on record nor Dr. Ishtiaq Ali has mentioned any such application in his evidence.
16. As far as motive is concerned, prosecution had alleged a dispute between appellant and the deceased before the occurrence in which the deceased gave a slap to the appellant but we have noticed that prosecution has miserably been failed to substantiate this motive as there is no evidence to prove this part of the prosecution story. It is true that prosecution is not under obligation to establish a motive in every murder case but it is also well settled that if prosecution sets up a motive and fails to prove it, then, prosecution is to suffer and not the accused. We very respectfully rely on the case of Noor Muhammad v. The State and another (2010 SCM R 97) wherein Hon'ble Supreme Court of Pakistan accentuated as under:-- "It has been held in the case of Muhammad Sadiq v. Muhammad Sarwar (1979 SCM R 214) that when motive is alleged but not proved then the ocular evidence required to be scrutinized with great caution. In the case bf Hakim Ali v. The State (1971 SCM R 432) it has been held that the prosecution though not called upon to establish motive in every case, yet once it has set up a motive and failed to establish the prosecution must suffer consequence and not the defence. In the case of Ameenullah v. State (PLD 1976 SC 629) it has been held that where motive is an important constituent and is found by the Court to be untrue, the Court should be on guard to accept prosecution story."
17. Another aspect that makes the prosecution case further doubtful is Mark-A, a progress report written by Inspector Muhammad Jameel S.H.O. (P.W. Given up being un necessary) referred in the evidence of P.W.9 that the concerned S.H.O. Had sent Mark-A to high-ups stating therein hat for tracing of real accused, he sought help of Sniff Dogs and Foot Trackers. Although Mark-A is not a peace of evidence worth reliance itself but this document creates a serious dent on the claim of the complainant, regarding nomination of the accused by him on the same day through his supplementary statement.
18. Dubious demeanor of the complainant, Inordinate delay in F.I.R, without mentioning the name of the appellant, non-production of any so-called supplementary statement of the complainant, non-production of opinion of the doctor regarding condition of the injured about making of his statement, recovery of an ordinary hatchet that too without bloodstains and un proved motive all these facts are sufficient to hold that case against the appellant is not free from doubts and his conviction on the basis of evidence produced by the prosecution is not safe, we respectfully referring the case of Muhammad Akram v. The State (2009 SCM R 230) where Hon'ble Supreme Court of Pakistan has emphasized as under:-- "The nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State (1995 SCM R 1345) that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled, to the benefit of doubt not as a matter of grace and concession but as a matter of right."
19. In view of the above while taking into consideration the rule of Safe administration of justice, we extend benefit of doubt to the appellant, accept his appeal (Criminal Appeal No. 445-J of 2006) acquit him of the charge. His conviction and sentence is set-aside. He be set at liberty it not required in any other case.
20. For the abovementioned reasons Criminal Revision No. 406 of 2007 filed by the complainant seeking enhancement of compensation amount, stands dismissed.
21. Murder Reference No.97 of 2005 is answered in the negative and death sentence of Mushtaq Ahmad alias Mustafa is not confirmed.