JUDGMENT GHULAM MUSTAFA MENGAL, J. - This appeal is directed against the judgment dated 18th June, 2009, passed by learned Sessions Judge (Adhoc), Quetta whereby appellant Ghulam Abbas alias Hussain was convicted under Section 302/34, P.P.C, and sentenced to imprisonment for life with a direction to pay Rs. 2,00,000/- as fine and in default whereof to further undergo two years' S.I.
The appellant was also directed to pay Diyat amount of Rs. 5,00,000/- to the legal heirs of the deceased Hussain Dad. The complainant Ghulam Sakhi is also aggrieved from the judgment of the learned Trial Court and has filed Criminal Revision No. 20 of 2009 for enhancement of sentence.
Since both the appeal and Revision are the outcome of one and the same occurrence and common judgment therefore, the same are being disposed of by this single judgment.
2. The prosecution story as narrated by the complainant Ghulam Sakhi (P.W-1) in the F.I.R, is to the effect that he is a resident of Block No. 1, Hazara Town. Quetta and runs a Hotel at Alamdar Road, Quetta. On 11th March, 2008 he was present in his house when at about 10.30 p.m. Zahir Hussain (P.W.2), informed him that his son Hussain Dad was done to death by accused Ghulam Raza alias Bachy Saqaw and his brother Ghulam Abbas with fire-arm near Safaid Pull. On this information, the complainant reached Bolan Medical Complex Hospital, Quetta, where he found the dead-body of his son Hussain Dad lying at casualty department, who sustained head injuries. The complainant further stated that in the Hospital, he came to know that his son was going towards the house of his brother-in-law near Safaid Pull, accused Raza and his brother Ghulam Abbas came there in their vehicle and scuffled with deceased Hussain Dad and forcibly got sat Hussain Dad in their vehicle and at a some distance near Dairy, inside the vehicle made firing at Hussain Dad and thereafter thrown his dead-body and made their escape good from the scene of occurrence.
3. After receiving information regarding the incident P.W-6 Muhammad Anwar, S.I alongwith IP/S.H.O. Fayyaz reached the casualty department, Bolan Medical Complex Hospital, Quetta, where he saw the father of the deceased namely Ghulam Sakhi and others and got recorded his statement as Ex. P/1 and registered F.I.R. No. 30 of 2008. Investigation of the case was entrusted to him. He prepared the inquest report Ex. P/6-A. The Doctor present in the casualty department handed over him the last worn clothes of the deceased. A TT Pistol loaded with five cartridges was recovered from the pocket of waist coat of the deceased, which was taken into possession vide memo; Ex. P/5, in presence of the witnesses Muhammad Shah, ASI and Muhammad Hussain, Constable and sealed the same in parcel Nos. 1 and 2. He handed over the dead-body to the legal heirs vide Ex. P/6-B for burial without conducting post-mortem. Thereafter he reached the scene of occurrence and prepared the rough site plan as Ex. P/6-C. He collected blood-stained earth from the spot vide memo. Ex. P/5-A. Meanwhile he received information that a 2-D Car is lying in water drain situated at Spiny. Road. He alongwith Police officials reached at Spiny Road, Quetta, where he found a 2-D Car white colour, bearing Registration No. AEG-558 lying in water drain. He took over an empty magazine, two loaded magazines, bandolier and four empties and one led of Megaron lying on the foot seat of the vehicle. On checking the dash board of the vehicle driving license, waist coat, two copies of interim bail and three photographs were found. He a)so collected blood- stained mat and blood-stained broken pieces of glasses from front seat of the vehicle vide memo. Ex. P/5-B, attested by Muhammad Shah, ASI and Muhammad Saeed, Head Constable He recorded the statements of witnesses under Section 161, Cr.P.C. He prepared site plan Ex. P/6-D. The vehicle was brought to the Police Station. He arrested the convict/appellant and recorded the statements of eye-witnesses namely, Munawar Ali, Zahid Hussain, Raza Muhammad and Jumma under Section 161, Cr.P.C. He sent Murasla to F.I.A, for blocking the Passport of absconding accused. He obtained warrant of arrest of the absconding accused. He sent the blood-stained clothes of the deceased to the F.S.L, for chemical and serological examination and obtained death certificate of the deceased Hussain Dad. After completion of formal investigation he shifted the convict/appellant to the judicial lock- up and handed over the case file to 1P/SHO, who after obtaining F.S.L, report submitted the incomplete challan in the Trial Court, where formal charge was framed against the convict/appellant, who denied the charge, pleaded not guilty and claimed trial.
4. During trial the prosecution in support of its case produced as many as six witnesses:-
(i) PW-1 Ghulam Sakhi, is the complainant of the case and father of the deceased Hussain Dad. He deposed to prove the contents of his Fard-e-Bayan Ex. P.I-A and identified his signatures on it.
(ii) P.W-2, Zahir Hussain and P.W-3 Munawar Ali are the witnesses of last seen.
(i.e) PW-4 Dr. Shabir Ahmed Magsi, Medical Officer, Bolan Medical Complex & Hospital, Quetta. On 11th March, 2008 at 10:15 p.m. The dead-body of Hussain Dad was brought by Muhammad Shah, ASI of Police Station, Brewery, Quetta and he examined the dead-body of deceased and found the following injuries:- "1. Bullet entrance right occipital mid 0.4 c.m.
2. Bullet entrance right neck upper margin just. Below the occipital region 0.4 c.m.
3. Bullet entrance right occipital lateral margin 0.4 c.m.
4. Bullet exit left parietal region 2 c.m.
5. Bullet exit wound left parietal region 2 c.m.
6. Bullet exit frontal area upper margin 2 c.m. Left.
7. Exit wound left parietal region 3 c.m.
8. Bullet entrance left supra clavicular.
9. Bullet entrance supra clavicular mid left.
No pulse, no respiration, no heart bear, pupils were full dilated.''
He opined that the probable cause of death injury due to the gun shot damaged the brain matter, excessive haemorrhage shock and death caused by fire-arm, shock and death. In cross- examination he deposed that there was no Tattoo marks on the entrance wound.
(iv) P.W.5 Muhammad Shah, ASI, is marginal witness of recovery memos. Ex. P/5, Ex. P/5-A and Ex.
P/5-B through which last worn clothes of the deceased and a T.T. Pistol 30 Bore alongwith 5 live cartridges were recovered during search of jacket of deceased and various articles tying at the spot were taken into possession by the Investigating Officer.
(v) P.W-6 Muhammad Anwar, ASI, is the Investigating Officer of this case. He deposed to prove the details of investigation, conducted by him.
5 After recording the statement of prosecution witnesses, appellant was examined under Section 342, Cr.P.C, wherein he denied the prosecution allegations and in answer to question what else do you want to say in. Your defence, the appellant replied as under:- "I am law ibiding citizen and holding public office as a General Councilor U.C.
60. Director of Kinder Model School and also serving as President of Anjuman Fatima Zahra. I am innocent and have been falsely implicated in case in hand due to brother of abscond accused Ghulam Raza."
6. The appellant neither opted to appear as his on witness I disproof the allegation levelled against him as required under Section 340(2) Cr.P.C, nor produced any witness in his defence.
7. The learned Trial Court after evaluating the material brough on record and hearing the parties found the appellant guilty of the offence charged with and passed the above-said conviction and sentence through th impugned judgment, which has been assailed by the appellant. While th complainant Ghulam Sakhi, has filed Criminal Revision No. 20 of 2009 f enhancement of sentence of Ghulam Abbas.
8. Mr. Muhammad Aslam Chishti, learned counsel for the appellant vehemently contended that admittedly there is no eye-witness of the actual incident of firing and the case of prosecution based on circumstantial evidence. He further contended that according to P.W-5 and P.W-6 there was no back seat in the vehicle and main accused is absconding. He further contended that no recovery whatsoever has been effected from the possession of appellant. Reliance in this respect was placed on the following reported case-laws:-
(i) Muhammad Amjadv. State (PLD 2003 SC,704).
(ii) Rab Nawaz v. Sikandar Zulqarnain (1998 SCM R 25).
(i.e) Muhammad Mushtaq v. State (2001 LR 1164) and
(iv) State v. Muhammad Taus'ef (2000 P.Cr.L.J. 1729).
9. On the other hand Mr. Ali Ahmad Kurd, learned counsel for the complainant and Mr. Abdul Sattar Khan Durrani, learned Additional Prosecutor General contended that although the prosecution case hinges upon the circumstantial and evidence of last seen, yet the same cannot be disbelieved when there is a strong piece of corroboration in the form of recovery of empties, blood- stained clothes and medical evidence. They added that both the witnesses are independent and truthful and their evidence cannot be discarded. Learned counsel for the complainant lastly contended that the appellant deserve normal penalty of death. In support of his arguments he relied upon the case of Muhammad Amjad v. State (PLD 2003 S.C. 704) and Khurshid v. State (PLD 1996 SC 305), while learned Additional Prosecutor General has not supported the petition for enhancement of sentence and prayed for dismissal of the appeal as well as criminal revision.
10. We have considered the arguments advanced by both the parties minutely and examined the material available on record and also gone through the impugned judgment.
11. Perusal of the record reveals that the occurrence in this case as per F.I.R. (Ex. P/6-A) occurred at 10:30 p.m. And the report was lodged at 11.15 p.m. On the same night of 11th March, 2008. The F.I.R, was lodged on the basis of Fard-e-Bayan of Ghulam Sakhi, father of the deceased Hussain Dad, who was not present on the spot but PW-2 Zahir Hussain informed him about the occurrence. On.
This information the complainant went to B.M.C. Hospital, Quetta, where the dead-body was shifted from the place of occurrence, which must have consumed sufficient time. The distance between the place of occurrence and the Police Station is shown to be one and half kilometer and in such- like situation the delay is a natural. A perusal of the record further reveals that in order to prove its case the prosecution relied upon the ocular testimony comprising statements of Zahir Hussain (P.W-2) and Munawar Ali (P.W-3), medical evidence, and the recoveries of crime empties coupled with the positive report of F.S.L, regarding blood-stained clothes of the deceased.
12. No doubt conviction can be based on circumstantial and last seen evidence but the same must satisfy the standard of quality of evidence that should satisfy the conscience of Court that except the guilt of the accused there is no way out. According to PW-2 there was scuffle between deceased and the persons present in the vehicle and then the vehicle left. For the sake of convenience relevant portion is reproduced as under:-- whereas, PW-3 states:-- The Statements of both PWs are irreconcilable because the manu fact i.e. The boarding or making to sit the victim in vehicle is missing, hence if PW-2 is believed that belies the PW-3 and vice versa, therefore, the principle of safe administration of justice demands that this benefit of doubt must be extended to accused. Moreover, when any link in the chain in missing in a case of circumstantial evidence it would not be safe to record conviction. The burden to prove the case will always lie upon the prosecution and while keeping this criterion in mind we scrutinized the statements of both the witnesses of last seen and round the same having major flaws and cannot be termed as of unimpeachable character. It appears that both the witnesses had not seen the occurrence.
According to P.W-2 Zahir Hussain, the watchmen coming under the Pull informed them that a dead-body is lying. On this information he alongwith Munawar proceeded towards the dead-body, meanwhile other people and police reached there and he informed the father of deceased. During cross-examination he admitted that his statement under Section 161, Cr.P.C, was not recorded on the spot but recorded on 12th March, 2008 in the police station.
11. Similarly, P.W-3, Munawar Ali deposed that a watchman running came to them and told that a dead-body is lying on the road. He alongwith Zubair Hussain went towards dairy farm and saw that dead-body of Hussain Dad was lying on the road. This witness is resident of Mariabad, which is far away from the place of occurrence. During his cross-examination, he deposed that his statement under Section 161, Cr.P.C, was recorded on 12th March, 2008. He further deposed that on 12th March, 2008 after taking lunch he alongwith Zahir Hussain and father of deceased went to Police Station, where Police first recorded the statement of Zahir Hussain and thereafter his statement under Section 161, Cr.P.C was recorded. The scrutiny of the ocular, evidence makes us to believe that both the witnesses failed to prove that they are quite natural, independent and truthful witnesses, and that their presence at the place of occurrence at the relevant day and time was justified. Both the witnesses made improvements to bring their ocular account in line with the prosecution story and made contradictory statements. Both the witnesses are interested witnesses, therefore, their testimony is neither believable nor confidence, inspiring. The independent witnesses, who possibly had seen the occurrence, were not produced by the prosecution, but they were withheld by the prosecution. Nothing incriminating was recovered from the possession or Plantation of appellant.
The medical evidence also does not corroborate the statements of the witnesses i.e. P.W2 and PW- 3, because according to their statements the deceased was shot dead in the vehicle but the medical evidence reveals that there was no tattoo marks on the entrance wounds. After disbelieving the ocular testimony of the PW-2 and PW-3, we cannot maintain the conviction only on the basis of medical evidence, report of F.S.L, regarding blood- stained clothes of deceased In this background doubt arises and benefit of doubt shall go to the accused. For all the above- mentioned reasons, we have found that the prosecution has miserably failed to prove its case beyond any shadow of doubt.
14. For what has been discussed above, we, therefore, accept Criminal Appeal No. 201 of 2009, the conviction and sentence Of convict/appellant; Ghulam Abbas alias Hussain, are set aside and he is acquitted of the charge. He shall be released from jail forthwith, if not required in any other case.
The connected Criminal Revision No. 20 of 2009 for enhancement of appellant's sentence is hereby dismissed.