' SHAHID ANWAR BAJWA, J.--- F.I.R. No,9 of 2001 was recorded at Police Station Mangli on 2-2-2001 at 11-00 a.m. For an incident alleged to have occurred at 7-30 of the same day. Complainant was one Ghulam Muhammad. He stated that deceased Muhammad Rafique was his father-in-law and they resided in their separate houses at the lands of one Malik Asad. The present appellant also resided with deceased Muhammad Rafique and a day before appellant demanded hand of one of daughters of Muhammad Rafique which he refused and hot words were exchanged "after which the present appellant went away to the adjacent house of his father. On the day of the incident in the morning at about 7-30.a.m. The present appellant armed with a single barrel gun came to the house of the deceased where the deceased with his family was sitting around the hearth and his wife was busy in preparing tea. The quarrel started. It attracted two witnesses and the present appellant is alleged to have put the gun on chest of Muhammad Rafique and fired thus killing him at the spot and escaped. The complainant informed Malik Asad of the incident who came at the place of incident and advised the complainant to lodge F.I.R. Consequently the F.I.R. Was lodged.
2. At the trial the complainant Ghulam Muhammad appeared as P.W.1, his wife Mst. Ghulam Sakina appeared as PW.2, Gulzar appeared as P.W.3, Muhammad Akram being Mashir of wardat, inquest, arrest and recovery appeared as P.W.4, H.C. Waheed Murad who went with the dead body to hospital appeared as P.W.S. Tappedar was P.W.6, Abdul Shakoor appeared as P.W.7, I/O SIP Wali Muhammad appeared as P.W.8, Dr. Rashid Saleem Rashidi appeared as P.W.9, P.C. Tanveer Hussain was P.W. .10 and second Mashir of wardat etc. Riaz Hussain was P.W.11. Thereafter statements of complainant was recorded under section 342, Cr.P.C. And vide Judgment dated 9-6-2007 the present appellant was convicted and sentenced to punishment of death. He was further ordered to pay an amount of Rs,100,000 and in case of default to suffer imprisonment for six months. Hence this appeal and the Reference No,7 of 2007.
3. Learned counsel for the appellant made the following submissions:--
(i) It is in the medical evidence that two pellets were recovered from the dead body during postmortem but these pellets have not been sent to the Forensic Laboratory and this creates doubt. She relied upon the case of IMRAN HUSSAIN v. AMAR ARSHAD, 1997 SCM R 438.
(ii) Even if the evidence in respect of recovery of the gun and the bullets and the empties from the place of wardat is believed the evidence states that three bullets and one empty were recovered whereas report of the forensic science laboratory states that five bullets and one empty were received. The firearm recovered and the bullets were sent to the Laboratory after 18 months of the incident and two facts put together create doubt.
(iii) Learned counsel submitted that there is discordance in time. Inquest report was conducted at 12-30 p.m. And it states that dead body was still there whereas the doctor stated that dead body was received at 1-30 p.m. Head Constable Waheed Murad in his evidence stated that at 11-30 a.m.
That he handed over the dead body to the Civil Hospital. If the I/O saw the dead body at the place of , the wardat at 12-30 how could P.W. 5 have delivered dead body at the Hospital at 11-30. Learned counsel further submitted that the postmortem report indicates that the postmortem concluded at 2-55 p.m. And in his evidence doctor stated that it concluded at 4-55 p.m. And these discordances in time created a doubt. Learned counsel relied upon MUHAMMAD IRFAN v. THE STATE PLD 2008 (Karachi) 182 and MISRI and 3 others v. THE STATE 1984 PCr.LJ 2832.
(iv) Learned counsel submitted that in the postmortem report it is stated that dead body was identified by Muhammad Akram and Muhammad Aamir and the doctor in his evidence stated that dead body was identified by Mashaikh Khan and Muhammad Aamir and this also creates doubt.
(v) Learned counsel submitted that description of clothes and blood-staining of them or fire mark on them are also created doubt.
(vi) Learned counsel submitted that there is discordance in terms of arrest of the accused and the presence of various witnesses which also create doubt. Learned counsel relied upon a number of case laws to which we shall refer at their appropriate place in the judgment.
4. Learned A.P.G. Submitted that:--
(i) As far as the place and the time of incident and the manner of death are concerned, there is no doubt and no dispute between any of the parties. He submitted that essentially that there are four eyewitnesses being P.W.1, P.W.2, P.W.3 and P.W.7 and their evidence has remained consistent and has not been shattered in cross-examination and, therefore, minor contradictions in surrounding circumstances do not create any doubt. Learned counsel relied upon ASIM and another v. THE STATE PLD 2004 (Quetta) 123.
(ii) Learned counsel submitted that delay in sending the firearm etc. To Ballistic. Expert is not material and he relied upon ANWARUL HASSAN v. THE STATE 1980 SCM R 649. Learned counsel submitted that recovery of is a corroborative piece of evidence and if the accused is acquitted in a case under Arms Ordinance it does not mean that he is entitled to be acquitted in the crime of murder also. He relied upon MUHAMMAD MANSHA v. THE STATE PLD 1996 SC 229.
5. We have considered the submissions made by the learned counsel and have also gone through the record.
6. It is prosecution's case that a gun was recovered as also one empty and three live bullets. It is in the statement of I.O. That he recovered one empty from the place of wardat and when the accused was interrogated, he produced at the spot one 12 bore single barrel gun and three live cartridges. It is also stated that the gun and the cartridges were sealed in the presence of the mashirs. P.W.4 Muhammad Akram in his examination-in-chief stated that there was no empty available at the place of wardat. He admitted his signatures on the mashirnama and stated that it was correct excepting showing recovery of the empties from the place of wardat. He also stated that the police recovered a single barre/ gun and three live cartridges from the present accused. He was declared hostile and was cross-examined. Masbir No,2 was Riaz Hussain and he in his evidence stated that empty was collected from the place of wardat and that gun and three live bullets were recovered from the appellant. However, in cross-examination . He stated that when he reached the scene of the wardat the gun was being held by the police. He stated that it was correct to suggest that the gun was not sealed in his presence.
7. The I.O. Also produced the report of Forensic Science Laboratory which report indicates that the case property was received by the laboratory on 12-8-2002. It may be quickly pointed out that the incident occurred cm 2-2-2001 therefore the gun etc. Was sent to the Forensic Science Laboratory 18 months after the incident. Most importantly the Forensic Science Laboratory received, five live cartridges whereas all the witnesses stated that there were three live cartridges recovered. It may also be quickly pointed out that through one mashir stated that they were sealed in his presence, the other mashir stated that they were not sealed in his presence. It may also be pointed out that the first mashir stated that no empty was recovered.
' Learned A.P.G. Relied upon ANWAR UL HASSAN'S case (supra). In this case the petitioner was arrested on January 6, 1975 and at his instance the blood-stained churra was recovered on January 7, 1975 as also were blood-stained clothes.. It was argued that the recovery of the clothes was made on 6-1-1975 and churra was recovered on 7-1-1975 and since they were not made on the same day they must have been fabricated. The contention was repelled. The case-law does not support the case of the prosecution and is of no relevance in the context of the present case.
9. Three facts put together create a doubt. Firstly the single barrel gun and the empties and the live bullets were sent after 18 months of their recovery. We are fully conscious that the delay in sending the recovered items simplicitor, standing alone' may not create a visible dent for the prosecution but the second circumstance that one of the mashir has stated that no empty was recovered and other mashir has stated that they were not sealed at the spot and to top it all thirdly the evidence is that three live bullets were recovered and Forensic Science Laboratory says that it received of the gun, live bullets and We must here however add that is only a corroborative piece of five live bullets. Given these factors doubt is created about recovery as claimed empties. Recovery evidence and is not sole determinator.
10. The next contention of the learned counsel for the appellant was that medical report states that two pellets were recovered from the dead body of the deceased and these pellets were not sent to the Forensic Science Laboratory. Learned counsel relied upon IMRAN HUSSAIN'S case (supra). The case is distinguishable for two reasons firstly that it was an appeal against acquittal which is obviously decided with a different paradigm for appreciation of evidence then an appeal against conviction. Secondly three factors put together were considered relevant in the reported case: firstly delay in lodging F.I.R; secondly absence of any explanation for non-recovery of bloodstained earth from the place of occurrence; and thirdly, failure to send the pellets recovered from dead body of the deceased to the Forensic Science Laboratory. In the present case the first of the two is not attracted. Therefore, the case is clearly distinguishable.
11. Next contention of the learned counsel for the Appellant was that there is discordance in time Inquest report was conducted at 12-30 p.m. It states that dead body was still at the place of the incident where the I/O saw it. P.W.5 who carried the dead body to the hospital stated that dead body was handed over by him to the hospital between 11-00 or 11-30 a.m. The post mortem report stated that dead body was received at 1-30. The time description by police is never very accurate and therefore, nothing turns in the circumstances on such time discrepancies. Same is the position of Contention of the learned counsel for the appellant that in the postmortem report it is stated that the postmcirtem was concluded at 2-55 p.m. And in the evidence the doctor stated that it concluded at 4-55 p.m. This may be purely result of typographical error because 2-55 p.m. Is same as 1455 hours and nothing turns on this simple discrepancy. Same is the position regarding as to who identified the dead body. Muhammad Akram who was zamindar, and a mashir was also resident of the same village. In the postmortem report it is stated that the dead body was identified by Muhammad Akbar son of Massaique Khan and by Muhammad Aamir son of Ghulam Hussain and in his examination-inchief the doctor stated that it was identified by Massaique Khan and Muhammad Aamir. P.W. 4 is Muhammad Akram son of Masaik Khan. This makes it clear that the persons who identified the dead body were resident of the same village. In any case it is not case of the prosecution that deceased was a different person than the case has been set up.
12. Next contention of the learned counsel was regarding arrest of the appellant. P.W.1 stated that, after committing the murder the present appellant left the place of wardat along with his gun.
Thereafter he described the sequence as that after he consulted Malik Asad, zamindar he went and lodged the F.I.R. It may be pointed out that as per contents of the F.I.R. The incident occurred at 7-30 a.m. And the F.I.R. Was lodged at 11-00 a.m. The P.W.2 stated that after committing the murder the accused went away towards the house with his gun. P.W.3 also stated that after the incident the accused left the place of wardat by carrying the gun and ran away towards eastern side whereas there is land and a jungle. P.W. 7 stated that when he reached the place of incident, and he stated that he reached immediately upon hearing the cries, the accused was "in custody of the complainant party". The I/O stated, that at about 3-00 p.m. (time given in Mashirnaina Exh.12) with the Mashirs he went from Bus Stand Chak No,74 and searched out the accused and the appellant was arrested in presence of the witnesses. P.W.11 stated, and he is the second Mashir, and at the time of arrest, and again the time is stated about 3-00 p.m, relatives of the accused were slapping him and he was tied with 'a tree. When the incident occurred at 7-30 a.m. F.I.R. Was lodged at 11-00 a.m. Mashirnama of 'arrest says arrest took place at 3-00 p.m. It is difficult to believe that the complainant remained at the place of wardat for 7-1/2 hours after committing the murder. Besides there are three witnesses stating that he went away.
' One witness stating towards his house, other witness stating towards eastern side in the jungle.
P.W Shakoor stated that when he reached there, he saw that the accused was in custody of the complainant party. The I.O. Stated that he arrested him near the Bus Stop and the Mashir stated that he was tied with the tree at the place of wardat and his relatives were slapping him. All this creates doubt as to how and when the appellant was arrested and what did he do immediately after the incident.
13. Complainant in his evidence stated that when hot words were exchanged in the morning Zulfiqar (actually it is Gulzar) and Shakoor on commotion appeared from a. Cane crushing machine which was functioning at a distance of one acre and then the present accused .Prevented them and fired. Ghulam Sakina P.W.2 stated that incident was witnessed by Gulzar and Shakoor. P.W.3 is Gulzar and he stated that he and ShakoOr were working at a sugarcane crushing machine when they saw the accused carrying gun coming from house of his father and going inside the house of the deceased and when there was commotion, they went there and then they saw the incident. On the other hand P.W. Shakoor stated that "on such cries we immediately gone towards the house of complainant where we saw dead body of Rafique lying on the ground and the accused was in the custody of the complainant party." Was Shakoor there before the incident or did he reach there after the incident? Gulzar says before, Shakoor says after. Did they see the accused coming with the gun from the house of his father to .The house of the deceased? Gulzar says yes, Shakoor does not say anything in this regard. Therefore, there is discordance in evidence in this regard also, which discordance cannot be ignored. This creates another doubt.
14. Deceased had two daughters namely Parveen and Zarina and the complainant stated that both Parveen and Zarina were present at the time of incident. However, Ghulam Sakina mother of Parveen and Zarina stated that Zarina was not available as she had gone to Karachi. This also creates a doubt.
15. The above narration indicates that the case of the prosecution against the present appellant is not free from doubt. No authority is needed for the proposition that benefit of each and every doubt must be given to the accused person.
16. The result of the above discussion is that this Criminal Jail Appeal No,137 of 2007 is allowed and appellant is acquitted by granting him benefit of doubt. He is ordered to be released forthwith if not required in any other case.
' Confirmation Reference No,7 of 2007 is answered in the negative.