SYED IFTIKHAR HUSSAIN SHAH, J. - This judgment will dispose of Criminal Appeal No. 1134 of 2006 filed by Muhammad Akram convict/appellant, who was convicted and sentenced by the learned Additional District Judge, Sargodha camp at Bhalwal vide judgment dated 30.6.2006 as under:-- Under Section 302(b). PPC Death and to pay compensation of Rs. 2,00,000/- under Section 544-A, Cr.P.C, payable to the legal heirs of deceased Sarfraz Ahmad in default whereof to further undergo simple imprisonment for six months.
Murder Reference No. 620 of 2006 for confirmation or otherwise of death sentence of the appellant Muhammad, Akram through this judgment.
2. Succinctly, the facts as mentioned in private complaint Ex.PD filed by complainant Muhammad Irshad son of Noor Muhammad are that on 18.3.2005 at about 12.00 noon, he alongwith his brother- in-law (behnoi) Sarfraz Ahmad, Muhammad Afzal and Mst. Nusrat Bibi wife of Sarfraz Ahmad were planting trees in the land of Sarfraz Ahmad. Sarfraz Ahmad was sitting on the road facing North and was planting trees while the complainant, Muhammad Afzal and Mst. Nusrat Bibi were sitting near Sarfraz Ahmad on eastern side. All of a sudden, Muhammad Akram accused came from graveyard side and took of his rifle from Chaddar. He fired at Sarfraz Ahmad deceased hitting him on the left side of his chest and on the left clavicle bone. Sarfraz Ahmad deceased fell down and succumbed to the injuries at the spot. On raising hue and cry Amanullah son of Mirza Khan and Mumtaz Ahmad son of Ahmad Khan reached at the spot and told them that on the same day at about 11.00 a.m. They both were passing near the dera of Ghulam Hussain accused and saw accused Ghulam Hussain, Walayat, Fazal Abbas, Zafar Abbas and Muhammad Akram were going ahead, they all said to Muhammad Akram accused to kill Sarfraz Ahmad and they would provide shelter to him. After the said occurrence, the complainant got lodged F.I.R. No. 64, dated 18.3.2005 under Sections 302/109, PPC at Police Station, Maila on the same day at 12.45 p:m. The motive behind this occurrence' was that in the year 2000 Muhammad Akram etc. Had caused injuries to Sarfraz Ahmad and a case was registered at Police Station, Kot Moman and thereafter Muhammad Irshad complainant alongwith Sarfraz Ahmad deceased had caused injuries to Muhammad Akram.
3. After recording preliminary statements of the complainant and the PWs, learned Trial Court summoned the accused and charged them under Sections 302/109, PPC to which they pleaded not guilty and claimed trial. The prosecution, in order to substantiate the charge, examined as many as 12 witnesses.
4. Muhammad Nawaz PW-1, Sarfraz Ahmad Patwari PW-3, Muhammad Arshad No. 499/C PW-7, Javed Iqbal No. 414/C PW-8 and Muhammad Nawaz No. 94/C PW-10 are the formal witnesses.
Shan Muhammad PW-9 is witness for the recovery of rifle 222 bore P-5 alongwith 4 live bullets P- 6/1-4 vide recovery memo. Ex.PH effected on the disclosure and pointation of Muhammad Akram appellant. Amanullah PW-2 is the witness of alleged abetment. Muhammad Irshad PW-4 and Muhammad Afzal PW-5 are the eye-witnesses of the occurrence. Sabir Hussain Shah, Inspector/SHO CW-1 and Zawar Hussain, S.I. CW-2 conducted the investigation of this case.
5. Dr. Mazhar Iqbal, Medical Officer PW-6 conducted the post-mortem examination on the dead- body of deceased Sarfraz Ahmad and he observed following injuries:-- "Injuries No. 1. A fire-arm wound of entry on the front of chest on right half close to the midline at 1 c.m.
Above the level of right nipple. Its margins were inverted and burnt, It measured 3/4 x 3/4 c.m. In dimension into going deep.
No. 2. A fire-arm wound 1/2 x 3/4 c.m. On the right side of the chest is margins were everted and soft tissues were coming of. It lied at the level of 9 c m. Above the right costal margin.
No. 3. A fire-arm wound of entry oval shape above the medial (inner) end object clavical, in inner half of left supra clavicular fossa. Margins were inverted and burnt, It measured 1-1/2 x 1 c.m. Going deep.
No. 4. A fire-arm wound of exit on left half side of back of chest, 4 c.m. Outer to the midline at the.
Post end of 5th rib. Its margins were everted and soft tissues were coming of It measured 1 x 1 c.m.
In dimension. On probing the injury wound and injury No. 4 the exit wound and injury No. 3 the entry wound were corresponding to each other.
Opinion Both injuries Nos. 1 and 3, the fire-arm wound of entries, were sufficient to cause death in this particular case by mechanism of haemorrhage and cardiac shock as a result of massive bleeding and damage of the vital structures heart. Moreover, damage to both lungs and the neurovascular bonddle at the base of the neck on left side with resultant damage to the left common carotid entry must have definitely contributed to death. All the injuries were ante-mortem and were sufficient to cause death in the ordinary course of nature.
Probable time that elapsed between injuries and death was immediate while between death and postmortem examination was within 4 to 6 hours."
6. The prosecution after tendering in evidence the report of Forensic Science Laboratory Ex.PJ, closed its evidence.
7. After closing of the prosecution evidence all the accused were examined under Section 342, Cr.P.C. The incriminating evidence produced by the prosecutions was put to them, which they termed as incorrect and to question as to why this case was registered and why the PWs have deposed against them, all the accused namely Muhammad Akram, Fazal Abbas, Zafar Abbas, Ghulam Hussain and Muhammad Walayat deposed as under:- "The PWs have made false statements against me due to enmity."
All the accused opted neither to appear on oath as a witness under Section 340(2), Cr.P.C, nor they produced any witness in their defence.
8. Learned Trial Court, after hearing the learned counsel for the parties and going through the evidence on record, convicted accused/appellant Muhammad Akram and sentenced him under Section 302(b), PPC to death plus to pay compensation of Rs. 2,00,000/- to be paid to the legal heirs of the deceased Sarfraz Ahmad under Section 544-A, Cr.P.C, in default whereof to further undergo simple imprisonment for six months and acquitted accused Fazal Abbas, Zafar Abbas, Ghulam Hussain and Muhammad Walayat.
9. The complainant filed PSLA No. 170/2006 against the acquittal of accused Fazal Abbas, Zafar Abbas, Ghulam Hussain and Muhammad Walayat, which was dismissed by the Court vide order dated 5.3.2008. He also filed Crl. Revision No. 847/2006 for enhancement of sentence of compensation to appellant Muhammad Akram, which was dismissed as withdrawn.
10. Learned counsel for the appellant has contended that the F.I.R, in this case was lodged after due deliberation and consultation; that PW-5 in his statement at page No. 32 of the paper book, has stated that no case was registered till 2.00 p.m.; that Muhammad Nawaz PW-1 has categorically stated that the dead-body of the deceased was removed from the place of occurrence at 2.30 p.m. On a Hilux van; that both the witnesses are inimical, interested and chance witnesses and they have improved their statements dishonestly to make their statements in line with the medical evidence; that there is contradiction in the medical and ocular account; that in the back drop of sending crime empties to the Forensic Science Laboratory one day after the arrest of the appellant serious doubt is created about the veracity of the report of Forensic Science Laboratory and thus it is inconsequential; that there is doubt regarding the date of arrest of the appellant as Muhammad Arshad No. 499/C PW-7 stated that the appellant was arrested on the following day of the occurrence whereas Shan Muhammad PW-9, who is brother-in-law of the complainant, categorically stated that the appellant was arrested 16/17 days prior to the date of recovery i.e. On 8.4.2005, which reflects that the date of arrest of the appellant shown as 5.4.2005 is factually incorrect; that the complainant while filing private complaint after the delay of two months, made dishonest improvements to make the same in line with the medical evidence; that the prosecution case has already been falsified and the learned Trial Court has acquitted four of the co-accused who were found innocent during the investigation of this case and appeal against their acquittal has also been dismissed by this Court on 5.3.2008, therefore, case against the appellant has not been proved and h6 is entitled to acquittal.
11. On the other hand, learned DPG assisted by the learned counsel for the complainant contends that the presence of the complainant, his wife and his brother-in-law at the place of occurrence is natural as they are also resident of the same village; that the date of recovery of rifle has not been seriously challenged by the appellant during cross-examination; that the date of arrest by the Investigating Officer has also not been challenged by the defence; that mere relationship of the witnesses is not sufficient to disbelieve their statements; that it is a case of single accused and case against him has been fully established by the prosecution beyond any shadow of doubt; that the ocular account is supported by the medical evidence coupled with the recovery of weapon of offence in back drop of the motive of . Criminal litigation, which was admittedly pending between the parties; that the F.I.R, was recorded on the same day and the post-mortem was also conducted on the same day at.5v00 p.m. that it is a case Of day light occurrence and the matter was reported to the police within 40/45 minutes at a distance, of 24 k.m from the place of occurrence; that Regarding the burning on the injuries of the deceased, a distance of 11 Feet as explained on the site-plan prepared by the police, exact, distance cannot be expected from the villagers and that does riot effect the prosecution case in any manner whatsoever.
12. We have heard the learned counsel for the appellant,, learned DPG Tor the State assisted by the learned counsel for the complainant and have also gone through the record.
13. The occurrence of this case had taken place at 12.0 noon on 18.3.2005 and the occurrence was reported to the police at 12.45 p.m. On the same day at Police Station, Maila, which is at a distance of 24 k.m. From the place of occurrence. According to the F.I.R, complainant Muhammad Irshad, Muhammad Afzal and Mst Nusrat Bibi wife of Sarfraz Ahmad deceased witnessed the occurrence.
The complainant being dissatisfied with the investigation of this case, filed a private complaint Ex.PD. The prosecution has mainly relied upon the testimony of Muhammad Irshad PW-4 and Muhammad Afzal PW-5. Muhammad Afzal PW-4 has deposed that Sarfraz Ahmad deceased of this case was his brother-in-law (Behnoi) and was AS1 in the police, on 18.3.2005 being on leave, Sarfraz Ahmad deceased alongwith Muhammad Afzal PW-5 and the complainant was planting trees while Mst. Nusrat Bibi was also present there, who had brought lunch for them. About 12.00 noon Sarfraz deceased was sitting at a distance of 4 karams from them whereas the appellant came there and raised lalkara that he had come to take revenge from Sarfraz Ahmad and fired at him which landed on the right side of his chest and on the left side of his neck near clavical bone.
Sarfraz Ahmad died at the spot. The motive behind the occurrence was that in the year, 2000 the appellant , had damaged- the crop of Sarfraz Ahmad and Sarfraz Ahmad had given beating to the appellant and to take the revenge of the above Occurrence, he got registered, a case against the complainant and the deceased, In cross-examination he denied that he mentioned in the. F.I.R.
Ex:PB that. Muhammad Akram appellant had fifed at Sarfraz Ahmad deceased; which hit. Him bn '.His flank. He further admitted that they have enmity with the- appellant because. Of the criminal litigation. Muhammad Afzal PW-5 also made a - similar, statement, however he admitted that the police recorded his statement after the post-mortem examination on'. The dead-body/of the deceased. He also admitted that the complainant party has got enmity with Muhammad Akram appellant even prior to the occurrence. He further admitted that on the arrival of the police at the spot, they had asked them not go, get tha case registered against innocent persons and the complainant told the police at that time that he would get the case registered against the real culprits and the police had arrived at the spot at 2.00 p.m. Even otherwise it appears improbable that the occurrence, which had taken place at 12 noon, be reported to the Police Station at a distance of 24 k.m. From the place of occurrence within a period of 45 minutes.
14. Muhammad Irshad complainant PW-4, in his complaint Ex.PB made before the police, mentioned that Muhammad Akram fired at Sarfraz Ahmad deceased which hit on his flank on the left side and then he fired second shot which hit on the right side of his chest whereas in the private complaint Ex.PD, it is alleged that the first fire of Muhammad Akram had hit on the right side of his chest whereas the second fire had hit Sarfraz Ahmad on the left side of his neck. Muhammad Afzal PW-5 deposed that Muhammad Akram appellant fired which hit on the right side of the chest of Sarfraz Ahmad deceased and second fire on the left side of his neck near clavicle bone. According to the post-mortem examination report injury No. 1 was on the front of chest on right half close to the midline at 1 c.m. Above the level of right nipple, its margins were inverted and burnt and it was an entry wound. Injury No. 2 was on exit wound on the right side of the chest, its margins were everted and soft tissues were coming of. Injury No. 3 was an entry wound of oval shape above medial (inner) end of left clavical, in inner half of left supra clavicular fossa and injury No. 4 was an exit wound on the left side of back of chest. Dr. Mazhar Iqbal PW-6 had not found any injury on the flank of the deceased during post-mortem examination. The complainant had mentioned the presence of fire-arm injury on the flank of the deceased in the F.I.R, but in the private complaint Ex.PD, he did not mention the aforesaid injury in order to make his case in line with the medical report.
15. Similarly, Muhammad Afzal PW-5 did hot mention the presence of fire-arm injury on the flank of the deceased, admittedly his statement under Section 161, Cr.P.C, was recorded after the post- mortem examination. He also tried to make his statement in line with the post-mortem examination report of the deceased regarding the seat of injuries. According to the post-mortem examination report and the statement of the medical expert while appearing as PW-6, the margins of the injuries were inverted and burnt. According to the site-plan Ex.PA prepared by the Patwari, Sarfraz Ahmad deceased was sitting at point "1" whereas he was fired at from point "5" and the inter se distance between the two points was 2 karams (11 feet). If the fire is made from a distance of 11 feet, then the question of burning does notarise.
16. According to the F.I.R., the occurrence had taken place at 12.00 noon and the deceased immediately reported the matter to the police at 12.45 noon. Muhammad Afzal PW-5 stated in his cross-examination that the police came at the spot at 2.00 p.m. And asked them not to get the case registered against innocent persons and the complainant told the police at that time that he would get the case registered against the real culprits. From this assertion of the PW, it clearly depicts that the case was not registered till 2.00 p.m. Otherwise there was no fun in making the aforesaid conversation. The complainant is brother-in-law "saala" and Muhammad Afzal is the real brother of deceased Sarfraz Ahmad. Both of them have admitted that they were inimical towards the appellant prior to this occurrence. The occurrence of this case had taken place at a distance of 5/6 acres away from the abadi Of the village. Sarfraz Ahmad deceased was residing in the village, Muhammad Irshad PW-4 was residing on the northern side of the village at a distance of 5/6 acres from the place of occurrence whereas Afzal PW was residing at a distance of 2 squares from the place of occurrence. They have no given any plausible explanation about their presence, at the place of occurrence at the time of occurrence. Had both of the said PWs present at the spot, they would have given the true picture of the occurrence, In the F.I.R., the complainant had mentioned that the Sarfraz Ahmad deceased received two injuries, one on his waist and the other on his chest whereas there was no injury on his waist and in order to make his statement in line with the post- mortem examination report, the complainant filed a private complaint. Similarly, the statement of Afzal PW was recorded after the post-mortem examination, who made statement in line with the postmortem examination report.
17. Similarly, if the complainant was present at the spot and had informed the police about the occurrence within 45 minutes of the occurrence then there was no fun in replying to the police by the complainant at 2.00 p.m. On the same date that he would implicate the real culprits only.
Sarfraz. Ahmad deceased was a policeman serving as AS1 and it is alleged by the defence that he has so many enemies and that the proclaimed offenders were also after him and he was murdered by unknown persons, In view of the above discussion it is crystal dear that both the PWs were not present sat the place of occurrence at the time of occurrence. Admittedly, they were inimical towards the Appellant prior to the occurrence, therefore, they have-falsely implicated the appellant in the occurrence.
18. The crime empties were allegedly recovered from the place of occurrence on . 18.3 2005 and were taken into possession vide recovery memo' Ex.PC: The appellant was arrested on 5.4.2005 and the crime empties were sent to .The Ballistic. Expert on 6,4.2005 whereas the alleged recovery of rifle, was. Effected on 8.4.2005. Admittedly, crime empties were sent to the Ballistic Expert after the arrest of the appellant.. The occurrence has taken place on -18.3.2005 and the appellant was arrested on 5.4.2005 Whereas according to PW-7 Muhammad Arshad No. 499/C, accused Muhammad. Akram appeared before the police on the second day of the occurrence. According to PW-9 Shan Muhammad, who is brother-in-law (behnoi) of Sarfraz Ahmad deceased, Muhammad Akram appellant was arrested by the police 16/17 days before the recovery of the weapon of offence i.e. 16/17 days prior to 8.4.2005. From the statement of PW-7 and PW-9, it is crystal clear that the date of arrest given by the police is false one and the accused was in police custody from the next day of the occurrence. The crime empties were sent to the Ballistic Expert after the arrest of the appellant with an inordinate delay without any plausible explanation, therefore, positive report of the Ballistic Expert is inconsequential.
19. A specific motive was alleged by the complainant in the complaint Ex.PD that in the year, 2000 the appellant and others had caused injuries to Sarfraz Ahmad deceased of this case and a case was registered at Police Station, Kot Moman. In retaliation, Muhammad Akram was injured by the complainant, Sarfraz Ahmad deceased and others and, a case was registered against the complainant party and that the appellant had murdered Sarfraz Ahmad deceased in order to take the revenge of the said occurrence. Motive mentioned in the complaint and the F.I.R, is always double-edged weapon.
20. It is cardinal principle of criminal jurisprudence that a single instance causing a reasonable doubt in the mind of the Court entitles the accused to the benefit of doubt not as a matter of grace but as a matter of right, in this context, we respectfully rely on case titled "Muhammad Akram Vs. The State (2009 SCM R 230)", wherein the Hon'ble Supreme Court has held 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 Vs 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"
In case of "Muhammad Luqman Vs. The State (PLD 1970 SC 10)" it was held as under:-- "A finding pf guilt against an accused person cannot be based merely on the high probabilities that may be inferred from evidence in a given case. The finding as regards his guilt should be rested surely, and firmly on the evidence produced in the case and the plain inferences of guilt that may irresistibly be drawn from that evidence. Mere conjectures and probabilities cannot take the place of proof. If a case was to be decided merely on high probabilities regarding the existence or non-existence of a fact to prove the guilt of a person the golden rule of "benefit of doubt" to an accused person, which has been dominant feature of the administration of criminal justice in this country with the consistent approval of the Superior Courts, will be reduced to a naught."
21. In these circumstances, we are of -the considered opinion that < the prosecution has failed to establish the guilt of the appellant beyond any shadow of doubt. Consequently, the appeal in hand is allowed and appellant Sarfraz Ahmad is hereby acquitted of the charge. He is in jail, he be released forthwith if not required in any other case.
The death sentence awarded to the appellant is NOT confirmed and Murder Reference No. 620 of 2006 is answered in NEGATIVE.