' MUHAMMAD ANWAARUL HAQ, J.---Tariq Mahmood, appellant was tried in case F.I.R. No, 444, dated 27-8-2001, registered at Police Station Saddar, District Gujrat for an offence under section 302, P.P.C.
At conclusion of the trial, the learned trial Court, vide its judgment dated 14-5-2005, convicted the appellant under section 302(b), P.P.C. And sentenced him to life imprisonment for the Qatl-e-Amd of Muhammad Munir. He was also directed to pay Rs,1,00,000 (rupees one hundred thousand only) as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. Or in default whereof to undergo rigorous imprisonment for six months. He was also extended benefit of section 382-B, Cr. P.C.
2. Feeling aggrieved, the appellant Tariq Mehmood has filed instant appeal through jail i,e, Criminal Appeal No, 304-J of 2005, whereas Muhammad Rafique, complainant has filed Criminal Revision No,468 of 2005 for enhancement of sentence of the appellant. Both these interlinked matters are being disposed of together through this single judgment.
3. Prosecution story in brief un-folded by Muhammad Rafique, complainant (P.W.9), according to the F.I.R. (Exh.PE/1) is that on 27-8-2001 at about 8-15 p.m. Complainant went to the house of his brother located at Chak Meero where his Bhabhi Mst. Bushra Bibi, Abdul Razaq and Ghulam Rasool were present. Meanwhile, his brother Muhammad Munir came back from Gujrat on his Tonga, he tethered the horse along with the wall of school building and when he turned towards his house to take Horse Food (Toori Dana), a duly armed unknown person already sitting behind the school wall, started firing at him. On hearing the fire-shots, the complainant and others, present in the house, rushed towards Muhammad Munir, who sustained severe injuries on different parts of his body.
Muhammad Munir succumbed to the injuries at the spot.
' The motive behind this occurrence, subsequently introduced by Mst. Bushra Bibi P.W.8 is that, about 1-1/2 year prior to the occurrence, the appellant committed theft in their house, her husband suspecting him, had reported the matter to the police, upon which, Tariq Mehmood appellant was arrested by the police and due to that grudge he had committed the murder of Muhammad Munir.
4. On 27-8-2001, after receiving information about the occurrence, Ralaqat Ali S.-I. (P-W-16) along with other police officials proceeded at the place of occurrence where he recorded statement of Muhammad Rafique, complainant (Exh.PE) and sent the same for recording of formal F.I.R. He inspected the dead body of Muhammad Munir (deceased), prepared inquest report (Exh.PH), injury statement (Exh.PP) drafted application for post mortem examination (Exh.PJ) and sent the dead body for autopsy. Then, he inspected the place of occurrence, collected blood stained earth and secured the same vide recovery memo. (Exh. PA), he also collected crime-empties of Kalashnikov and secured the same vide recovery memo. (Exh.PB) and recorded statements of the P.Ws. Under section 161 Cr.P.C. He also recorded supplementary statements of Muhammad Rafique complainant and Mst. Bushra Bibi wife of the deceased. Thereafter, investigation of this case was transferred to Muhammad Yunis Inspector (P.W.14) who got declared the appellant proclaimed offender from the Court of learned area Magistrate.
' On 24-3-2003 Muhammad Nazir S.-I. (P.W.15) had arrested Tariq Mehmood appellant and a Kalashnikov (P-3) along with 25 bullets was also recovered from his possession.
5. After submission of challan charge was framed against the appellant to that he pleaded not guilty and claimed trial.
6. To substantiate the charge, prosecution has examined sixteen witnesses, Dr. Muhammad Tariq (P.W.12) provided medical evidence, Muhammad Sadiq (P.W.1) and Muhammad Aslam (P.W.2) provided evidence of Waj Takkar, Mst. Bushra Bibi (P.W.8) and Muhammad Rafique (P.W.9) provided ocular account whereas Muhammad Younas Inspector (P.W.14), Muhammad Nazir S.-I.
(P.W.15) and Rafaqat Ali S.-I. (P.W.16) have conducted investigation of this case.
7. Dr. Muhammad Tufail, Medical Officer (P.W.12) conducted the post mortem examination on the dead body of Muhammad Munir and observed as under:--
(1) Fire-arm wound of entry 1 x 1 cm margins inverted and black on posterior lateral aspect on the top of right shoulder.
(b) Fire-arm wound of exit 1-1/2 x 1 cm margins everted on anterior lateral aspect of right upper front of chest.
(2) Fire-arm wound of entry 1 x 1 cm on right temporal region.
(b) Fire-arm exit 8 x 5 cm on left cheek and orbit of left eye with missing of left eyeball. .
(3) Fire-arm wound of entry 6 x 3 cm on right side of neck. (b) Fire-arm wound of exit 6 x 5 cm on front of neck.
(4) Fire-arm wound of entry 1 x 3 cm on medial side of left lower 1/3rd of arm.
(b) Fire-arm wound of entry 2 x 3 cm on posterior lateral aspect of the left arm.
(5) Fire-arm wound of entry 3 x 1 cm on lower one third of right buttock.
(b) Fire-arm wound of exit on medial aspect of right thigh.
' In his opinion, all the injuries were ante mortem, caused by firearm, death occurred due to injury on the vital organs i,e, brain, main vessels of the neck of right side leading to massive haemorrhage and shock.
' The probable time elapsed between injuries and death was immediate and between death and post mortem 6 to 8 hours.
8. Tariq Mehmood, appellant when examined under section 342, Cr. P.C. Had denied the allegations and professed his innocence. While answering to Question "Why this case against you and why the P.Ws. Have deposed against you?" the appellant replied as under:- "My submission is that the occurrence took place in the darkness of the night. None had witnessed the occurrence. The case was got registered by the complainant against unknown culprits. I have been later on falsely involved in this case after due consultations and deliberations. The real facts are that deceased Muhammad Munir had illicit liaison with wife of one Hameed Mahajar and one Shada Badmash used to forbid the deceased from visiting her house, as he considered it the insult of whole of the village and therefore, Shada above mentioned committed the murder of Muhammad Munir deceased. Due to fear of Shada, he was not nominated as an accused in this case, and I was falsely involved due to suspicion. The P.Ws. Are closely related to the deceased.
They had not witnessed the occurrence. They have made false statement before the Court and have made dishonest improvements in order to support their version."
' The appellant did not make statement under section 340(2), Cr.P.C. However, he produced some documents (Exh. DA to Exh. DE) in his defence. The learned trial Judge vide judgment dated 14-5- 2005 found Tariq Mehmood, appellant guilty and convicted and sentenced him as mentioned above.
9. Learned counsel for the appellant in support of this appeal contends that appellant is not named in the F.I.R. And vas implicated through a supplementary statement which, though was shown to be recorded immediately after the occurrence, on the same day yet this is belied from the facts that name of the appellant is not even mentioned in the inquest report; that Mst. Bushra Bibi (P.W.8) wife of the deceased, stated that she identified the appellant at the time of occurrence but she has stated that person as unknown, in her statement recorded under section 161, Cr.P.C. Moreover, it is not believable that if Mst. Bushra Bibi (P.W.8) and Muhammad Rafique complainant (P.W.9) were present at the house and the appellant was seen by Mst. Bushra Bibi, why they opted to lodge F.I.R.
Against some unknown accused; that complainant has not stated any thing in the F.I.R. Regarding the motive of the occurrence and even Otherwise, motive set out in his statement recorded before the learned trial Court as P.W.9, is not proved as the appellant had already been declared innocent regarding that allegation; that recovery of Kalashnikov (P-3) at the instance of the appellant is not helpful for the prosecution because the said Kalashnikov and the empties recovered from the spot were not sent to the Forensic Science Laboratory for comparison; that initially statement of the complainant (P.W.9) was recorded on 20-7-2002 by the learned Additional Sessions Judge, Gujrat under section 512, Cr.P.C. In the absence of the appellant and even in that statement (Exh.DD) he has not named the appellant as the person who had fired at his brother and he has simply stated an accused/culprit after firing ran away, he was duly confronted with that statement and it was brought on the record that both the witnesses have made dishonest improvements in their statements to implicate the appellant. As far as evidence of witnesses of Waj Takkar i,e, Muhammad Sadiq (P.W.1) and Muhammad Aslam (P.W.2) is concerned, they have simply stated that they saw the appellant going along with a Kalashnikov and they have not stated anything regarding the incident, moreover, their evidence is belied from the fact that they informed the complainant about this fact but the complainant even on 20-7-2002 while appearing before the Court as P.W.3 did not state anything regarding the appellant, in these circumstances, case against the appellant is totally doubtful in nature and he is entitled for acquittal.
10. On the other hand, learned Deputy Prosecutor-General assisted by learned counsel for the complainant while opposing this appeal contended that Tariq Mehmood appellant was immediately named in the supplementary statement of the complainant which was recorded just after the occurrence and similarly he has also been named in the statement of Mst. Bushra Bibi (P.W.8) wife of the deceased who is most natural witness of the occurrence as she is inmate of the house; that the prosecution case is supported by evidence of Muhammad Sadiq (P.W.1) and Muhammad Aslam (P.W.2) witnesses of Waj-Takkar, who have stated that they saw the appellant while carrying a Kalashnikov in his hand coming from Chak Meero; that recovery of Kalashnikov (P- 3) from the possession of the appellant and crime-empties collected by the Investigating Officer from the spot further strengthen the prosecution case; that absconding of appellant about one year provides corroboration to the prosecution allegations levelled against him. Lastly contends that the prosecution has proved its case and there is no substance in this appeal, therefore, the appellant is not entitled to any exception, hence, appeal of the appellant deserves dismissal.
11. As far as Criminal Revision No, 468 of 2005 is concerned, learned counsel for the petitioner in support of this petition contends that since the prosecution has proved its case against Tariq Mahmood/respondent beyond any shadow of doubt, therefore, normal penalty for Qatl-e-amd i,e, death, should have been awarded to the respondent. Learned Deputy Prosecutor-General also supports the arguments advanced by learned counsel for the petitioner while adding that learned trial Court has not given any cogent reason for lesser sentence in this case that was a legal requirement under section 367, Cr.P.C.
12. We have heard the arguments from both the sides at length and have given anxious consideration to their arguments and have also scanned the record with their able assistance.
13. We have noticed that in the F.I.R. (Exh. PE/1) it has clearly been mentioned that it was an unknown person who had committed this murder and even in the inquest report story of the prosecution is the same but surprisingly the appellant has been implicated through a supplementary statement. Statedly Mst. Bushra Bibi (P.W.8) wife of the deceased, was present in her house when this occurrence took place and she attracted to the spot but she even in her statement has firstly stated that it was some unknown person who killed her husband but later on she has stated that subsequently she came to know that unknown accused was the appellant. It has been admitted by Mst. Bushra Bibi during cross-examination that appellant was living at a very small distance from her house and was known to her even prior to the occurrence. Moreover, learned trial Court had declared the appellant as proclaimed offender and recorded prosecution evidence under section 512, Cr. P.C. Wherein statement of Muhammad Rafique complainant was recorded which is available on the file as Exh. DD and even in that statement he has not named the appellant. In this view of the matter evidence furnished by Mst. Rushra Bibi (P.W.8) and Muhammad Rafique (P.W.9) has, lost its intrinsic value and is not confidence inspiring.
14. As far as statements of Muhammad Sadiq (P.W.1) and Muhammad Aslam (P.W.2) witnesses of Waj Takkar, are concerned, they both stated that they saw the appellant while carrying a Kalashnikov his hand coming from Chak Meeru, this evidence itself it is not of any importance as it does not connect the appellant with the crime mentioned in the F.I.R. Moreover, even after a span of about eleven months when statement of the complainant was recorded under section 512, Cr.P.C. He has not uttered anything about this aspect. Therefore, we are of the view that evidence of both these P. Ws is of no avail to the prosecution case.
15. As far as recovery of Kalashnikov (P-3) and crime-empties from the spot is concerned, admittedly these were not sent to the Forensic Science Laboratory for comparison hence, this evidence carries no value.
16. The motive set out by Mst. Bushra Bibi and Muhammad Rafique complainant while appearing before the Court as P.W.8 and P.W.9, respectively, was that the appellant had committed theft in the house, of the deceased and Muhammad Munir (deceased) while suspecting him as thief reported the matter to the police, but we do not find any such motive in the F.I.R. And even Mst.
Bushra Bibi (P.W.8) has admitted that this matter was settled between them, therefore, we hold that the prosecution has failed to prove motive against the appellant. In the case of Noor Muhammad v. The State and another (2010 SCM R 97), Hon'ble Supreme Court of Pakistan held 'as under:-- "It has been held in the case of Muhammad Sadiq v. Muhammad Sarwar 1979 SCM 214 that when motive is alleged but not proved then the ocular evidence required to be scrutinized with great caution. In the case of 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 it, the prosecution must suffer consequence 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. Medical evidence and absconding of an accused are supporting evidence and a person cannot be convicted merely on the basis of the fact that he remained absconder for some period. As the prosecution has failed to prove its case, therefore, mere abscondence of the appellant is of no avail to the prosecution. In the case of Muhammad Zaman v. Muhammad Afzaal and others (2005 SCM R 1679) the Hon'ble Supreme Court of Pakistan has observed as follows:-- "The only fact that remains to be considered is the abscondence of some of the accused. In the absence of any other evidence as discussed earlier, the ascendance loses its significance."
18. It is the ditty of the prosecution to prove its case beyond any shadow of doubt and this burden never shifts, if any reasonable doubt arises regarding culpability of an accused he is always entitled for its benefit. We respectfully refer here the case of Muhammad Akram v. The State (2009 SCM R 230) wherein Hon'ble Supreme Court of Pakistan has emphasized as under:-- "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. For the reasons mentioned above, we are of the considered view that prosecution has miserably been failed to prove its case against the appellant being full of doubts. We, therefore, while extending benefit of doubt to him, allow his Criminal Appeal No, 304-J of 2005, the conviction and sentence recorded by the learned trial court against Tariq Mehmood, appellant is set-aside, he is acquitted of the charge levelled against him. He is in jail, he be released forthwith if not required to be detained in any other case.
20. Consequent upon the reasons mentioned above Criminal Revision No, 468 of 2005 filed by the complainant-seeking enhancement of the sentence of the appellant is dismissed.