' MISS AALIA NEELUM, J.---Muhammad Arif, appellant was tried by the learned Additional Sessions Judge, Narowal in a private complainant filed under sections 302/148/149/109, P.P.C. For committing murder of complainant's brother Muhammad Anwar. Vide judgment dated 7-9-2007 the learned trial court convicted the appellant under section 302(b), P.P.C. And sentenced him to life imprisonment. He was also directed to pay compensation of Rs,1,00,000 to the legal heirs of the deceased as envisaged under section 544-A, Cr.P.C. Or to suffer six months simple imprisonment.
Muhammad Aslam, Muhammad Shahbaz and Muhammad Tariq co-accused were, however, acquitted. It may be mentioned that Muhammad Ramzan, accused could not be arrested, therefore, he was declared proclaimed offender. Later on Muhammad Ramzan accused was arrested and also acquitted by the learned trial Court on 8-12-2012.
2. Feeling aggrieved of the above conviction and sentence Muhammad Arif, convict/appellant has preferred Criminal Appeal No,1366 of 2007 whereas the complainant had not filed any PSLA against the acquittal of Muhammad Aslam, Muhammad Shahbaz and Muhammad Tariq co-accused and Criminal Revision for enhancement of sentence of the appellant/convict.
3. Brief facts as narrated in the F.I.R. Exh.PA are that Muhammad Shahid complainant was resident of Muhallah Ganj Hussain Abad, Narowal and was a tailor by profession. On 14-12-2004 at about 9- 00 a.m. The complainant along with Muhammad Anwar and Muhammad Sarwar his brothers and Muhammad Ashraf his brother-in-law were going towards bus stop to proceed to Lahore, when they reached near Ice Factory at Eid-Gah Road, Muhammad Alam, Muhammad Arif, Muhammad Shahbaz and Muhammad Ramzan while armed with pistol were standing there and on seeing them, Muhammad Alam raised Lalkara that the complainant party should be done to death to take revenge of the murder of their brother. The complainant party tried to fled-away, Muhammad Shahbaz and Muhammad Ramzan caught hold of Muhammad Anwar (deceased) from his arms and Muhammad Arif, present appellant, fired with his pistol which hit on the Chest of Muhammad Anwar (deceased), who succumbed to the injuries at the spot. Thereafter, the accused persons fled away by making aerial firing.
' The motive behind the occurrence was that the allegation of the murder of the brother of Muhammad Alam and Muhammad Arif was against the brother of Muhammad Yasin and all the accused with premeditation and consultation committed murder of brother of the complainant, namely, Muhammad Anwar (deceased) and the occurrence took place on the instigation and abetment of Muhammad Tariq.
4. Muhammad Ishaq S.-I. Appeared as CW5 and.Deposed that he was posted at Police .Station City, Narowal when on 14-12-2004 at 9.15 a.m. Muhammad Shahid, complainant produced application Exh.PC before him who was present at Eid-Gah chowk. He sent the said Application the police station through Muhamad Afzal, constable for registration of formal F.I.R. Thereafter he proceeded to the place of occurrence along with Sadir Nisar and Muhamamd Afzal. The dead body of Muhammad Anwar was lying at the spot and he took the same into his custody. At the spot he prepared injury statement (Exh.CW5/1) and inquest report (Exh.CW512). He also prepared application for postmortem examination (Exh.CW5/3) of the dead body and handed over the same to the constable for escorting to the mortuary. He collected blood stained earth from the place of occurrence and took the same into possession vide memo Exh.PE. After post mortem examination, last worn clothes of the deceased were produced before him by Sadir Nisar C-587 and he took the same vide memo Exh.PG. He also prepared site plan of the place of occurrence (Exh.CW5/4). The investigator inspected the spot and conducted other formal investigation at the spot.
5. After completion of the investigation, the Investigating Officer submitted the challan in the court by placing Muhammad Alam, Muhammad Arif, Muhammad Shahbaz accused in Column No, 2 except Muhammad Ramzan. After conclusion of the investigation, Muhammad Ramzan was found the actual culprit. Feeling aggrieved of the same, the complainant filed a private complaint (Exh- PD) and after inquiry, the accused of private complaint were summoned by the learned trial court on 28-3-2005.
6. At the commencement of trial, charge was framed against the appellant and others, to which they pleaded not guilty and claimed their trial. At trial, the complainant produced as many as 12 prosecution witnesses including the CWs out of which Muhammad Shahid and Muhammad Sarwar (P.Ws.2 and 3) furnished ocular account of the occurrence. Dr. Sadaat Ali P.W.1 proved post mortem examination. Muhammad Khalil, Inspector (CW.3), Muhammad Anwar S.-I. (CW.4) and Muhammad Ishaq, S.I. (CW. 5) proved their investigation. Rests of the witnesses were formal in nature.
7. Dr. Saadat Ali, appeared as P.W.1 who conducted postmortem examination on the dead body of Muhamad Anwar on 14-12-2004 and found the following injuries:--
(i) A Circular wound I x 1 cm on back of left side of chest blackening around the margins were present, 7 cm midline 10 cm from the shoulder edges inverted.
(ii) A lacerated wound 1.5 x 1.5 cm in front of right side of chest, 1.5 cm inner to nipple.
' In the opinion of doctor injury No,1 was sufficient to cause death in ordinary course of nature by shock and haemorrhage. Injury was by fire arm weapon and ante-mortem. Also stated that injury No,1 was entry wound whereas injury No, 2 was its exit. Probable time that elapsed between injuries and death was within "half hour" and between death and post mortem examination was within 6 to 24 hours.
8. After closure of prosecution evidence the appellant was examined under section 342, Cr.P.C. He denied and dismissed each piece of prosecution evidence and attributed his false involvement to enmity, as he was eye-witness in a murder case of his brother Zahoor Ahmed in which Yasin brother of Anwar deceased was nominated accused. He further deposed in his statement that the complainant has falsely involved him in this case in order to pressurize him and his co-accused. He further deposed that he is innocent and he had nothing to do with the murder of Muhammad Anwar and the P. Ws. Were inimical towards him and also interested witnesses. The appellant however, neither entered into witness box under section 340(2), Cr.P.C. Nor produced evidence in defence. At the end of trial, the appellant was convicted and sentenced as noted above.
9. Learned counsel for the appellant contends that ocular account is not in line with medical evidence as PW.1 had deposed that the injury at the back of the deceased was the entry wound and the exit wound was at front of the deceased, whereas in the complaint it has been stated by the complainant (P.W.2) that the fire hit at the chest of Muhammad Anwar (deceased), in such circumstances the eye-witnesses P.W.2 and P.W.3 should not be considered truthful as they have tried to improve the case to bring in line with the medical evidence which goes against the prosecution. Learned counsel further contended that no independent witness has been brought on record. The learned counsel states that motive in this occurrence is previous enmity and the same can be considered a reason for his false involvement especially when the whole family stands implicated in this case. It is contended that it was never the case of the prosecution that the accused was so close to the deceased person as the injury on the deceased was having blackening which fact belies the prosecution version that the witnesses were present at the spot.
Learned counsel further contends that no time and date of death was mentioned in the post mortem report and in these circumstances inference can be drawn that the occurrence was unseen and later .On the witnesses and the complainant were called from their houses and the story was concocted. Learned counsel also contends that both the witnesses had not deposed.
What they were doing at the place of occurrence and no reason for their presence at the place of occurrence has been brought on record, so in the circumstances there is no evidence to connect the appellant with the commission of alleged crime and he is entitled to acquittal.
10. On the other hand learned Law officer states that complainant was brother of the deceased. No reason for false implication has been brought on record; that accused has been nominated in the F.I.R. As well as in private complaint and ocular account furnished by P.W.2 and P.W.3 was fully corroborated by medical evidence and it has been observed more than once by the superior courts that close relative of the deceased do not implicate unconcerned persons leaving aside real accused persons. As far as motive is concerned the same has been described by the complainant himself. So the prosecution has proved its case beyond doubt and no reason for acquittal is, available so judgment of the learned trial Court is liable to be upheld.
11. I have heard the learned counsel for the parties and have also gone through the record.
12.The alleged occurrence took place in earlier hours of morning. It was fogy morning and was not possible to witness the occurrence from 32-ft. It is alleged that occurrence took place at 9-00 a.m.
And, immediately the deceased succumbed to the injuries at the spot whereas it has been mentioned in the postmortem report that duration between injury and death is half an hour and the complainant reported the occurrence to the police at 9-15 a.m. With written application and the same goes against postmortem report which created doubt regarding the presence of witnesses at the relevant time at the place of occurrence. P.W.2 brother of deceased had not stated a single word what he along with other witnesses was doing at the place of occurrence and same was not brought on record through any evidence. Moreover it is very conspicuous that P.W.3 stated that he did not appear before the police during investigation. P.W.2 also stated that he made statement on the first day of the occurrence at the spot which was reduced into writing and same is Exh.PA, whereas CW-5 stated that on 14-12-2004 complainant P.W.2 produced before him application Exh.PC and such statement makes the case of prosecution highly doubtful so it can easily be said that the occurrence has taken place sometime during the night in the dark hours and later on case has been registered due to certain reasons against the appellant and others and no one has seen the occurrence. It is well settled that in such circumstances statement of the eye- witnesses can only be believed if the same gets support and corroboration from the other circumstances. So this is a case in which the Medical officer (P.W.1) found two injuries on the person of deceased and one of the injury had blackening, none of the witnesses deposed that the accused had caused injuries from a close range. In this respect, reliance has been placed on the case reported as Amin Ali and another v. The State (2011 SCM R 323) wherein it has been observed as under:- "One of them had blackening. None of the witnesses deposed that any of the appellants had caused the injuries from a close range.Hut on the contrary in'the site plan the place of firing has been shown 8 feet away from the deceased."
' Reliance has also been placed on the case reported as Mir Muhammad v. The State (1995 SCMR 610) where it has been observed as under:-- "One pace is equal to 2-1/2 feet. So, according to the eyewitnesses the shots were fired from a distance of more than 10 feet. In Modi's Medical Jurisprudence and Toxicology (21st Edition) at page 227 it has been stated that "Blackening is found, if a fire-arm like shot-gun is discharged from a distance of not more than 3 feet and a revolver of pistol discharged within about 2 feet."
13. In the instant appeal, in the site plan place of firing was shown 9 feet from deceased, from such distance, injury with blackening on the person of deceased could not be caused and to bring ocular testimony in line with medical evidence, eye-witnesses P.W.2 and P.W.3 had made deliberate improvements in their statements to cover up contradictions in medical evidence and eye-witness account. The duration given by the Doctor between the death and post-mortem was 6 to 24 hours which would mean that the occurrence could have taken place at any time and not at the time which complainant had claimed. The Doctor also mentioned in the post-mortem report that the duration between injury and death is half an hour whereas the eye-witnesses stated that Muhammad Anwar deceased succumbed at spot which shows that occurrence had neither taken place at the time shown in the F.I.R. Nor in the manner set up by the prosecution.
14. Both complainant and accused parties were locked in criminal litigation. The appellant took plea that he was involved in the murder of Muhammad Anwar deceased as the appellant is eye- witness in the case di murder of his brother Zahoor Ahmed and in the same case brother of the deceased, namely, Yasin was nominated accused. The motive being a double-edged sword cut both ways and in this context involvement of accused in the case due to existing hostility between the parties could not be ruled out.
15. The prosecution witnesses were not only inimical towards accused persons but were also closely related to deceased and for the above stated reasons the complainant had reasons to falsely implicate the appellant/accused and corroboration from independent source was required which was not forthcoming from any independent source as occurrence took place in the main bazaar and no one from that locality joined the investigation. Moreover, neither any crime empty was taken into possession from the spot nor any weapon of offence was recovered from the appellant/accused, thus the prosecution had not been able to prove its case against the accused beyond shadow of doubt as there were many dents in the prosecution story. In the present case, the possibility of the occurrence being un-witnessed cannot be ruled out as such the conviction and sentence recorded by the learned trial court cannot be sustained. Reliance has been placed on the case reported as Muhammad Akram v. The State (2009 SCM R 230) wherein the Hon'ble Supreme Court of Pakistan was held that even single circumstance creating reasonable doubts in a prudent mind about the guilt of accused makes him entitled to its benefit, not as a matter of grace and concession, but as a matter of right.
16. In view of what has been noticed and discussed above, Criminal Appeal No, 1366 of 2007 is accepted. Conviction and sentence awarded to the appellant is set aside while extending benefit of doubt to Muhammad Arif, appellant and he is acquitted of the charge. He is on bail, so his sureties are discharged.