' QAISER RASHID KHAN, J.---Aggrieved of the judgment dated 18-12-2007 passed by the learned Judge Anti-Terrorism Court, D.I. Khan acquitting the accused/respondent Abdul Majid, in case F.I.R.
No,654 dated 26-8-2006 under section 302, P.P.C./13 Arms Ordinance and section 7 of the Anti- Terrorism Act of Police Station Cantt. D.I. Khan, the appellant, namely, Amir son of Muhammad Ashraf, has questioned the same through the appeal in hand.
2. - The prosecution story as gleaned from the lodged by the complainant Muhammad Ashraf in injured condition in the emergency room of Civil Hospital:; D.I. Khan is that he was present in handcuffs in the court of Additional Sessions Judge-II D.I. Khan along with P.W. Abdul Majid as under trial prisoner in a murder case. After attending the court when came out at 1130 hours, he was fired at with pistol by the said P.W. Abdul Majid with which he was hit on the back side. Abdul Majid was apprehended red handed by the police party on the spot. Motive for the offence was that the complainant was charged for the murder of Farid, brother of accused Abdul Majid.
3. After completion of investigation and submission of challan in the court, the accused was formally charge-sheeted to which he did not plead guilty, professed innocence and claimed trial.
4. The prosecution in order to prove its case against the accused/respondent produced and examined ten witnesses and closed its evidence. Thereafter, statement of the accused was recorded under section 342, Cr.P.C. But he denied the allegations levelled against him in toto. He neither produced any evidence in defence nor opted to examine himself on oath in terms of section 340(2), Cr.P.C. The learned trial Judge, on evaluating the evidence brought on record and considering the arguments of the learned counsel for the parties addressed at the bar, came to the conclusion that the prosecution had not been able to prove its case against the accused/respondent beyond any shadow of reasonable doubt and thus by extending him the benefit of doubt, acquitted him of the charge vide judgment which is now under challenge, by the appellant through the appeal in hand.
5. The learned counsel for the appellant vociferously argued that the occurrence had taken place in a broad-daylight in the court premises where the accused/respondent was singly charged; that the case in hand was of a simple murder based on enmity inter se between the parties and thus did not fall within the definition of terrorism', triable by learned Judge, Anti-Terrorism Court; that the learned trial Court had wrongly disbelieved the evidentiary value of dying declaration merely on the ground that the dying statement of the deceased was not supported by a certificate of the doctor who examined him at the relevant time; that undue importance has been given to the minor contradictions in the statements of the P.Ws.; that the deceased was in the custody of the police at the time of occurrence in an earlier murder case to which the accused was a prosecution witness who when fired with his pistol at the deceased was apprehended red-handed and thus his presence on the spot was very much established; that the presence of son and nephew of the deceased at the time of occurrence with the deceased was natural and established; that the report was lodged with all reasonable promptitude under the distody of the police and thus the question of consultations and deliberations also did not arise; that the report of the Forensic Science Laboratory corroborates .The version of the prosecution; that the recovery of crime pistol and empties rule out the possibility of plantation and thus the learned -trial Court has wrongly acquitted the accused/respondent by extending him the benefit of doubt. In support of his contentions, reliance was placed on the judgments reported as 1994 PCr.LJ 181, 2006 PCr.LJ 387, PLD 1993 Peshawar 109, NLR 1997 Criminal Cases 343, 1997 SCM R 89, 2008 SCM R 688 and 2003 SCM R
522. The learned Deputy Advocate-General appearing on behalf of the State adopted the arguments advanced by the learned counsel for the appellant.
6. Conversely, the learned counsel for the accused/respondent supported the impugned judgment and argued that the dying declaration of the deceased-then-injured is a weak type of evidence which is not corroborated by other materials available on record; that according to the cross- examination of the doctor who examined the deceased in injured condition, he was incapable to talk; that there are material contradictions in the statements of prosecution witnesses; that though P.W.6, namely, Umer Hayat, had stated that at the time of recording the report of the complainant/deceased-then-injured, the doctor on duty was present but no certificate was obtained from him about the physical condition of the deceased at that time that according to the cross-examination of P.Ws.8 and 9; namely, Muhammad Amir and GuI Jan, the deceased had already expired when the doctor reached near him; that though the said P.Ws.8 and 9 have alleged their presence at the time of occurrence with the deceased, but there are material improvements in their statements and thus the impugned judgment is based on correct appraisal of evidence and needs no interference.
7. We have carefully gone through the entire record of the case and anxiously considered the valuable arguments of the learned counsel for the parties.
8. In this case, the ocular testimony was furnished by Muhammad Amir (P.W.8) and Gul Jan (P.W.9) who are closely related to the deceased and their deposition requires independent corroboration.
Perusal of their statements reveals that they have contradicted each other on material points.
Muhammad Amir who was examined as P. W. 8 is the son of deceased Muhammad Ashraf. In reply to a question, he stated that, "it was about 11.15 a.m. When the deceased was fired at, however, I do not possess any watch". To another question, he replied, "when doctor reached near the deceased, he was already expired. When the report was being lodged by Muhammad. Ashraf my father, the compounder was present and no doctor was present at that time." P.W.9 Gul Jan, nephew of the deceased, stated in his examination-in-chief that, "none amongst doctor was present in emergency. We took deceased then injured to the surgical ward. He was attended there by a compounder. In the mean time police came there and recorded the report of the deceased then injured. After that he died. When the doctor came, the injured was already expired." P.W.8 Muhammad Amir stated _ that they were searched by the police at the time of entrance inside the court premises which is negated by-Gul Jan P.W.9. P.W.8 stated that he was examined. By the Investigating Officer on the following day of the occurrence while according to P.W.9, he was examined by the police after about two/three days while the record shows, that they were examined after eight days. Both of them have disowned their deposition before the police and whatever one admitted, the other denied. As per the report of the deceased Muhammad Ashraf then injured, the same was made at the emergency room of civil hospital, D.J. Khan and has been found to have been thumb impressed. P.W.6 Umar Hayat Khan stated in his examination-in-chief that "during the days of occurrence, I was posted as ASI in Reporting Centre DHQ hospital, D.I.
Khan.' On 26-8-2006 at 1200 hours injured Muhammad Ashraf lodged the report to me, which was reduced into writing in the shape of murasila Exh.PA/1 which was read over to the injured complainant Muhammad Ashraf, who thumb marked the same as a token of its correctness."
However, in cross examination, the same very P W. Took a complete volte face and in reply to a question stated that, "the report was lodged by the injured in the surgical ward which I recorded in the shape of murasila. The doctor concerned was present there. I did not consider necessary to obtain a certificate from the concerned doctor regarding position of the injured." Still to another question, he replied that, "it is correct that I have mentioned in murasila that the report was recorded in the emergency room." Similarly, P.W.1 Dr. Ehsan Waheed stated in his examination-in- chief that on 26-8-2006 at about 1210 hours he examined Muhammad Ashraf. The said P.W. In cross-examination replied to a question that, "on 26-8-2006 at the time of examination of patient named above, I was performing my duties at Emergency Ward of DHQ Teaching Hospital, D.I. Khan as Duty Doctor." To another question, he replied that, "when I examined the patient, at that time he was not in a position to give any statement." The conflicting versions put forward by the P. Ws regarding the report made by the deceased then injured, whether in the emergency ward or in the surgical ward, whether attended by the doctor or not and about the actual physical condition made the prosecution version highly doubtful, the beneficiary of which is none other but the accused, even otherwise a favourite child of law.
9. Next comes the medical evidence which is also not without its own share of doubts. P.W.1 Dr. Ehsan Waheed who examined the deceased, then injured on 26-8-2006 at about 1210 hours, found the following injuries:-- "(1) Firearm entry wound over right side of back size 1/4" x 1/4" with inverted margins.
(2) Firearm entry wounds on the left posterior chest size 1/4" x 1/4" with inverted margins at the level of 10th intercostals space."
' However, Dr. Qutab Khan, Medical Officer, DHQT Hospital, D.I. Khan (P.W.5) who conducted autopsy on the dead body of deceased Muhammad Ashraf on 26-8-2006 at 3-30 p.m. Found the following wounds:- "(1) One entrance wound F.A.I 1/4" on the right flank back.
(2) Three entrance wound each 1/4" dia on the lower right chest-one near spinal card and others above and below. All F.A.Is."
' P.W.5 further added to the controversy regarding the entry wounds when during cross- examination, he replied to a question that, "all the entry wounds were independently of the size of 1/4". He further clarified during cross-examination that, "at the time of conducting postmortem I did not find any blackening/charring marks on the dead body of the deceased. During the postmortem examination, I found only one bullet from the dead body of the deceased and for the rest of the bullets, I did not, try." This portion of the medical evidence belies .The eye-witness account of P.W.9 namely, Jan wherein he replied to the last question of his cross-examination that, "at the time of firing at the deceased, accused had aimed his pistol on the deceased touched with the body and then started firing."
10. As far as the recovery of the crime pistol from the accused/respondent is concerned, in this respect too, the prosecution has come up with different versions: P. W.3 Ghulam Baqir Shah stated in his examination-in-chief that, "in the court premises the then accused Ashraf was fired at by the present accused Abdul Majid. As a result of which Muhammad Ashraf was hit and fell down after taking 3/4 steps and I immediately aimed my official Kalashnikov at Abdul Majid accused and with the help of relatives of the deceased I overpowered the accused and snatched a pistol from him." However, the said P.W. Broke down during cross-examination and replied that, "I have not seen anybody firing at the deceased including the accused as my back was towards him. The moment I aimed my gun at the accused, he threw his pistol on the ground which was picked up by me. I have also pointed out the place where I was standing to the I.O. At the time of preparation of the site plan. I also pointed out the place wherefrom I picked up the pistol to the 1.O."
Muhammad Iqbal FC appeared as P.W.4 who stated in his examination-in-chief that, "I along with Bagir Shah FC produced the deceased-accused before the court of Additional Sessions Judge, D.I.
Khan. On conclusion of the proceedings I was taking back the then accused-deceased Muhammad Ashraf to the lock up. The deceased was in handcuffs and I was taking him towards the lock up and as soon as we stepped down from the stairs from veranda of the court room, someone fired from my back which hit the deceased Muhammad Ashraf. When I looked back, I saw pistol in the hands of the accused Abdul Majid facing trial." To a question, he replied that, "I have not seen anybody firing at the deceased including the accused as my back was towards the accused at that time" to another question, he replied that, "the pistol was taken by Bagir Shah FC from the accused and not picked up from the ground." These statements taken together raise serious question marks regarding the recovery of crime pistol from the accused.
11. As per the F.S.L. Report, the two empties recovered from the spot matched with the .30 bore pistol allegedly recovered from the accused/respondent, but strangely enough and to the detriment of the prosecution story, in respect of the lead piece/bullet recovered from the body of the deceased, the Fire-arms Expert failed to express his opinion, "as to whether or not it was fired from the pistol in question." Now in such a situation, whether it is the two crime empties recovered from the spot which would be kept in view or the lead piece/bullet recovered from the body of the deceased After giving a careful thought to both the propositions, we have reached to the conclusion that the lead piece recovered from the body of the deceased should take precedence over the two empties recovered from the spot.
12. From the above discussion, it is crystal clear that there are contradictions in the statements of P.Ws. And in the ultimate, as to whether the dying statement was recorded in the emergency room by Umar Hayat Khan (examination-in-chief referred), in the surgical ward in the presence of a doctor without considering it worthwhile to obtain a certificate from the concerned doctor (cross- examination referred), statement of Gul Jan (P.W.9) regarding taking of deceased then injured to the surgical ward, attended by a compounder, the arrival of the police, the recording of the import of the deceased then injured and the arrival of the doctor after his expiry. All these contradictory versions have made immeasurable and incurable dents in the prosecution case. It goes without saying that a single circumstance which creates doubt in the mind of a prudent person, its benefit must be extended to the accused, not to speak of the many ,circumstances in the instant case.
Therefore, the impugned judgment is based on correct legal footings, which needs no interference and is accordingly upheld.
13. By now it is settled law that when an accused is acquitted by a competent court of law after facing the agonies and ordeal of a protracted trial, then he earns the presumption of double innocence which cannot be disturbed by the appellate Court unless it is established through cogent and tangible evidence available on record that such acquittal is fanciful, erroneous or has resulted into grave miscarriage of justice. Reliance in this respect may also advantageously be placed on the dicta handed down by the honourable apex Court in 2004 SCM R 249, 2009 SCM R 288 and 2009 SCM R 946
14. For the reasons stated above, we find no merit in this appeal which is accordingly dismissed.