Appellant Aamir Masih by way of instant appeal has called in question the judgment dated 10.06.2009 rendered by the learned Addl: Sessions Judge, Kharian in a case registered vide FIR No, 355 dated 4.06.2006 under Sections 302, 148, 149, PPC at Police Station Saddar, Kharian whereby he was tried alongwith his co-accused Mst. Rosheen Iffat (since obit during the trial) and convicted and sentenced as follows: AAMIR MASIH, APPELLANT Life imprisonment as Taazir u/S. 302(b), PPC and fine of Rupees one million to the legal heirs of the deceased as compensation u/S. 544-A, Cr.P.0 in default thereof to. further undergo six months S.I.
Benefit of Section 382-B, Cr.P.0 was also extended to him.
2. The facts in brief as disclosed by Sohnay Shah (PW-10) in FIR Ex.PG/1 are that he is resident of village Mir Khani Teshil Kharian and is running a provisioned store in the village. His son Tufail Hussain Shah (deceased) proceeded abroad about one year prior to his murder. A friendship had developed between Tufail Hussain Shah and Alamdar Hussain Shah in abroad at Kuwait. His son Tufail Hussain returned to Pakistan about two months from Kuwait before the incident. Alamdar Hussain also returned to Pakistan who had been visiting in his house, who was a street-boy and due to said reason he forbade his son to advance friendship with Alamdar Hussain Shah. About 20 days prior to the instant occurrence, Tufail Hussain Shah deceased be annoyed with the complainant left the house for Dhunni alongwith Alamdar Hussain. On 4.06.2006 at about 6.00 a.m. his son Tufail Hussain alongwith Alamdar Hussain going towards Dhunni from Kharian in a Car Bearing No, 1402/LZX. Tufail Hussain deceased was sitting on front seat of the Car while Alamdar Hussain was driving the Car. When Alamdar Hussain and Tufail Hussain were going to Dhunni, a Car chased them, Sajjad Hussain of Lalamausa (P.0) alongwith 4 unknown accused, all armed with fire arm weapons were sitting in that Car which was chasing them. When Tufail Hussain deceased and Alamdar Hussain reached in the area of village Pindi Sultan Pur, all above mentioned accused started firing upon Tufail Hussain and Alamdar Hussain Shah but fires did not hit any one. Then Alamdar Hussain immediately took a U-turn and proceeded towards Kharian hurriedly. When they reached in front of Thapla on G,T Road, all above said accused while armed with fire arm weapons started firing straightly upon them. A fire short hit upon the back of Tufail Hussain Shah deceased after piercing through the Dikky of the Car. Some fire shots hit upon their Car, the front and back screens were broken and all above mentioned accused slunk from the scene of occurrence. Tufail Hussain was taken to C.M.H, Kharian in an injured condition where he succumbed. He alongwith Mehdi Khan Lambardar of his village also reached there upon receiving the information of occurrence. Hence the case.
3. Talib Hussain S.I (PW-7) on the receipt of information of occurrence rushed to C.M.H, Kharian, recorded statement of complainant Ex.PG, prepared inquest report Ex.PC, made an application for post mortem examination of the deceased Ex.PD and got escorted the dead body for autopsy to THQ, Hospital, Kharian through Muhammad Razzaq 998-C PW-2. Thereafter, Sajjad Anwar S.I being an I.O. (PW-11) went to the place of occurrence who on 4.06.2006 inspected the place of occurrence, prepared rough site plan Ex.PW-11/A, took into possession Car No, 1402/LZX (P-3) from the place of occurrence vide recovery memo. Ex.PK duly attested by the PWs, secured from the front seat of the Car blood-imbrued Rexene like cloth made the same into a sealed parcel and took into possession vide recovery memo. Ex.PH attested by the PWs, recorded the supplementary statement of Sohnay Shah complainant and Alamdar Hussain Shah under Section 161, Cr.P.0 who named 4 unknown accused persons in their statements. The I.0 took into possession last worn clothes of the deceased consisting of Qameez P-1, Shalwar P-2 vide recovery memo. Ex.PE attested by the PWs. He on 7.06.2006 got prepared scaled site plan in duplicate Ex.PF and Ex.PF/1 from the draftsman. He on 30.06.2006 arrested appellant Aamir Masih and obtained his physical remand and on 2.07.2006 co-accused Mst. Rosheen Iffat since dead, was arrested. On 5.07.2006 appellant Aamir Masih made disclosure and got recovered loaded pistol .30-bore P-4 from bushes of area of Thapla Mohri by-pass road and on unloading 3 live bullets were recovered which were P-5 (1-3) made the same into sealed parcel and took into possession vide recovery memo. Ex.PL attested by the PWs. He also prepared site plan of the place of recovery of said pistol P-4 Ex.PL/1. Appellant Aamir Masih was sent to judicial lock up. He recorded the statements of the PWs step-wise. He deposited the case property with the Moharrir of Police Station for safe custody in the Malkhana.
After the completion of the investigation challan was submitted against the accused persons to face the trial.
4. After observing all the pre-trial formalities charge was framed by the learned trial Court to which the appellant and his co-accused did not plead guilty and the prosecution was asked to lead its evidence.
5. At the trial, prosecution in order to prove its case produced as many as 11 witnesses in all.
Dr. Naveed Ahmad PW-1 who conducted the post-mortem on the dead body of the deceased Tufail Hussain Shah and found following injuries:--
(i) A lacerated wound 2 x 1 cm x bone exposed on the top of head (back side).
(ii) Fire arm entry wound lx1 cm x going inward. Blackening was present around the entry wound on the right lumber region above the posterior superior iliac supine.
Exit wound 3 x 3 cm on the right hypo-chondrium close to the line above the level of umbilicus.
According to the opinion of the doctor, death had occurred due to shock and haemorrhage as a result of Injuries No, 1 and 2, which were grievous, fatal and were sufficient to cause death of the deceased in ordinary course of nature. The probable time between injures and death was immediate and between death and post mortem was about 8 hours. Ex. PA was the correct carbon copy of postmortem examination report, pictorial diagram Ex.PA/1, injury statement Ex.PB, inquest report Ex.PC and application for postmortem examination Ex.PD being signed by him.
Learned D.D.P.P left off Shabbir Hussain Shah, Syed Saqib Shah and Mehdi Khan as being unnecessary and by tendering in evidence report of Chemical Examiner Ex.PM and that of Serologist as Ex.PN closed the prosecution case. Then statement of the appellant was recorded u/S. 342 Cr.P.0 in which he gainsaid the charge aad professed innocence. The appellant in answer to a question why this case against you and why the PWs deposed against you replied as follows: "I am innocent. I have been implicated and & involved in this case falsely, as I was old and trusted employee of Sajjad Hussain P.O from whom Alamdar Hussain PW borrowed substantial amount to get rid of the payment of amount, Alamdar Hussain PW with planning, involved Sajjad Hussain and myself falsely in this case I was in knowledge and witness of credit story. The prosecution has failed to produce any eye-witness of the occurrence to prove its story. Sohany Shah complainant is resident of Meer Khani, which is at a distance of 25 km from the place of occurrence. According to record of file, Sohany Shah reached CMH, Kharian after hearing about the death of his son Tufail Hussain Shah. He gave his statement to Talib Hussain S.I, who wrote Fard Biyan as Ex.PG, in which Sohany Shah clearly stated that he had reached CMH after the death of his son Tufail Hussain. This fact has also been confirmed by the statement of Lal Shah as PW-9, who while appearing in the Court stated that he alongwith Sohnay Shah and Mehdi Khan left Meer Khani at 8 am after hearing the death of Tufail Hussain. Story of prosecution is un-believable. The so-called eyewitness Alamdar Hussain left the country after the occurrence. His role in the case is questionable and could led to real story which he dishonestly concealed from all concerned and has purposely hidden and created mystery and shadow over the murder of Tufail Hussain. His guilty conscience has refrained him from appearing in the Court. He alongwith Tufail Hussain was involved in dacoity, car lifting and they were womanizers. To save himself from clutches of law, he left the country and decided to live in abroad and not come to country after 2/3 years. This is why he has not come and appeared in the Court."
However, after conclusion of trial, the appellant was convicted and sentenced as mentioned above by the learned trial Court.
6. In support of this appeal, it has been argued that FIR was lodged against Sajjad Hussain (P.0) and 4 un-known persons but later on through a supplementary statement appellant alongwith Rizwan (P.0) and Mst. Rosheen Iffat (since dead) were involved; no motive direct or indirect has been brought against the appellant; according to the contents of statement of the complainant Sohnay Shah examined as PW-10, has not claimed to have seen the occurrence; four persons allegedly made indiscriminate firing out of which one fire shot hit to the deceased but it is not clarified by the prosecution whose fire had hit to the deceased; Alamdar Hussain remained unhurt and if the firing was indiscriminate how he remained safe from being hit; he was the natural and most relevant PW who has been withheld by the prosecution the alleged recovery is inconsequential as there is no positive report of the ballistic expert to the effect that the same was used in the commission of crime and mere workability of the weapon allegedly recovered is nothing; material improvements have been made by the complainant while appearing before the Court and those particular portions of his statement have duly been confronted by the learned defence counsel during the cross-examination; except the statement of Sohnay Shah, no other evidence is available on the record to corroborate the same and on the basis of sole statement it is highly parlous to rely upon the same when the entire material does not reveal that the fire shot made by the appellant hit the deceased; medical evidence does not support the ocular version as according to the doctor who examined as PW-1 has categorically stated that fire shot wound entrance has blackening on its edges but the prosecution case is that firstly the fire shot hit to the dikky of the car then pierced through it and further it hit the body of the car in its internal side then it came out from the same and hit the deceased if the bullet had hit prior to the hitting of the body of the deceased with a hot substance then it is absolutely not possible that the blackening may occur on the apertures of the wound. Lastly it has been submitted that the prosecution has miserably failed to prove its case against the appellant and the appellant may be acquitted.
7. Learned D.P.P assisted by, the learned counsel for the complainant has defended the impugned judgment and submitted that indubitably, the appellant was not nominated in the FIR but immediately after the lodgment of the FIR an addendum statement of the complainant was recorded wherein he nominated the appellant alongwith co-accused; a joint attack was made upon the car, as a result of which an innocent person has lost his life; as the occurrence was premeditated, therefore, individual act of an accused may not be t*en into consideration but overall impact of the occurrence may be taken into consideration; no reason with the complainant has been brought on the record to falsely involve the appellant; recovery of crime weapon has been effected from him and the doctor categorically has expressed in his opinion that the deceased received fire shot injury besides a blunt injury was also available on his head. Learned counsel has further argued that two co-accused namely Sajjad Hussain and Rizwan alias Mani are proclaimed offenders and if the benefit is extended to the appellant then the other co-accused may obtain the same when they would be tried. Lastly it has been submitted that the learned trial Court has already taken a lenient view in this case, otherwise, it is a foolproof case for the capital sentence of the appellant and has prayed for the dismissal of appeal.
8. Hearkened. Record perused.
9. The appellant was not nominated in the FIR, even in the FIR no descriptions of un-acquainted culprits were given, so far as the supplementary statement of the complainant is concerned, the same carries no value and cannot be equated with the statement recorded under Section 154 Cr.P.C, the same is read out to its maker and in token of its correctness is also signed or thumb marked by him whereas the statement recorded under Section 161, Cr.P.0 does not gain the same status. According to the version of the FIR complainant Sohnay Shah was not present but during the trial he improved upon his statement and when he was present, the same was duly confronted in the cross-examination. This improvement is dishonest material, deliberate and also spiteful.
According to the prosecution's own case three persons simultaneously made fire shots at the car of the deceased, out of the same one bullet after hitting the dikky of the car ultimately hit back side of the deceased but the doctor has categorically stated that apertures of the wound has been found blackened and it is inapprehensible how the blackening occurred on the edges of the wounds. It is nebulous that amongst whose fire from the accused hit the deceased. Recovery of pistol allegedly planted upon the appellant is inconsequential on account of its non-positive report of the ballistic expert. Statement of the complainant has not been corroborated by any other evidence available on record.
10. For what has been discussed above, the prosecution has miserably failed to prove its case against the appellant, thus, the instant appeal is allowed. Consequently, conviction and sentence of the appellant is set-aside and he is acquitted of the charges levelled against him by extending him benefit of doubt. He is in the prison. He is directed to be set at liberty forthwith, if is not required in any other case.
11. It is clarified that acquittal order of the appellant shall not cause any effect on the case of the proclaimed offenders whenever they are tried. It is directed that record of the case be preserved till their arrest and trial.