' MAZHAR IQBAL SIDHU, J.---This judgment will dispose of above captioned criminal appeal, filed by Muhammad Awais appellant who was convicted and sentenced by learned Additional Sessions Judge, Lahore in case vide F.I.R. No,40 dated 27-1-2006 under sections 302/34, P.P.C. Registered at P.S. Shandara, Lahore vide impugned judgment dated 9-6-2010. Infra conviction and sentence was imposed on the appellant:-- ' MUHAMMAD AWAIS ' Life imprisonment as Taazir under section 302(b), P.P.C. Along with compensation of Rs,2,00,000 to be paid to the legal heirs of the deceased under section 544-A, Cr.P.C. Or in default thereof to further undergo six months' S.I.
' He was also extended the benefit of section 382-B of Cr.P.C.
' Likewise Criminal Revision No,837 of 2010 filed by Munawar Bibi petitioner/complainant against respondent-accused namely Muhammad Awais for enhancement of his quantum of sentence shall also be disposed of by this single judgment.
2. Brief facts of the case narrated by Munawar Bibi complainant (P.W.3) in the F.I.R. Are that her younger son Shahbaz aged about 22 years is an employee in Millat Tractors. He has family relationship with Muhammad Awais. Two days prior to the occurrence, Shahbaz (deceased) and Awais appellant quarrelled over a petty matter but the matter was patched up by the husband of the complainant Muhammad Sadiq but Muhammad Awais appellant nourished grudge and on 27-1-2006, he came to the house of complainant at 10-00 p.,m. And took Muhammad Shahbaz along with him on the pretext of going to attend a marriage. Muhammad Shahbaz did not return back. Complainant became worried and she along with Muhammad Sadiq her husband, Aamir Sadiq her son and Naveed Ahmad were going to the house of Muhammad Awais at Mohalla Kukay Zayuian to inquire about Shahbaz deceased, and 3-15 a.m. Awais appellant along with Shahbaz deceased reached his house on motorcycle. Awais raised a lalkara that I have got Shahbaz with me and asked two unknown boys who were already present in the house of Awais appellant that Shahbaz be finished. Awais made a fire with his mouser which hit Shahbaz on his rightllank.
Amongst those two unknown boys, one made a fire with his mouser which hit Shahbaz on his arm.
Shahbaz ran away in order to save his life but fell on the ground at the shop of one Muhammad Shafi Milk Seller. Awais appellant also threatened the witnesses and asked them not to come forward. After that appellant Awais and other put Shahbaz in injured condition on their motorcycle and took him to Mayo Hospital so that colour of dacoity be given to the occurrence. Complainant along with other witnesses followed them on a rickshaw where Shahbaz deceased told them on the Main Gate that he has been fired at by Awais and others. Shahbaz succumbed to the injuries at the Hospital. Hence the case.
3. Dr. Ghulam Sabir Sabri, Senior Medical Officer, RHC, Phool Nagar District Kasur (P.W.9) conducted the post-mortem examination on the dead body of Muhammad Shahbaz on 22-1-2006 at about 6-00 p.m. And he found the following injuries:- 1-a Fire arm exit wound 1 x 0.7 cm at anterior aspect of the upper arm 10 cm above elbow 21 cm below top of the shoulder.
1-b Fire arm exit wound 1.5 x 1 cm at medial aspect of the right upper arm below axilla 4 cm from fire arm entry wound.
2-a Fire arm entry wound 0.8 x 0.8 cm circular punctured wound at right side of chest on lateral aspect of the chest 15 cm below, axilla 13 cm from right nipple at 8 o'clock position.
2-b Fire arm exit wound 0.7 x 0.7 cm on postro lateral aspect of left side of abdomen. 28 cm below axilla. 13 cm from posterior middle line.
' According to the opinion of the doctor, death was occurred due to excessive bleeding and shock leading from fire-arm injury and its complications. These were ante-mortem and fatal and were sufficient to cause death in ordinary course of nature. Time elapsed between injury and death immediately whereas between death and post mortem was 12 to 16 hours. Exh.PH and Exh.PH/1-2 are the true carbon copies of the post-mortem report initialed and signed by him.
4. Upon the completion of investigation, the matter was placed before the learned trial Court for trial Where prosecution produced as many as 10 witnesses to prove the charge against the appellant whereas the court also summoned 3 witnesses as C.Ws.
5. Learned D.D.P.P left off P.Ws. Namely Muhammad Sadiq, Muhammad Fayyaz, Asad Mehmood 10715/C and Khalid Abu Bakar DSP as being unnecessary and by tendering in evidence report of Chemical Examiner Exh.PM, report of Serologist Exh.PM/1 and report of Forensic Science Laboratory Exh.PN closed the prosecution case.
6. The learned trial Court also examined the appellant under section 342, Cr.P.C. Wherein he gainsaid the charge and claimed innocence. He did not opt to appear as witness on oath under section 340(2), Cr.P.C.
' Awais appellant while answering to question "why this case was made against you and why the P.Ws. Deposed against you?, replied as under:-- "In fact deceased was my close friend, however, the other family members of the deceased.
Shahbaz is involved in drug trafficking and in preparation of prohibited drugs. The brother of the deceased Aamir alias Badshah P.W. Is also connected with those people and is having close contacts with Romi and Billu Group who are involved in preparation of prohibited drugs. Prior to this occurrence, I have informed police about their nefarious activities due to which they have to stop their illegal business and they nourished grudge against me. On the. Fateful day that group came to kill me but unfortunately my friend deceased Shahbaz became the victim as he was accompanying me. The family of deceased Shahbaz as they are having close contacts with said Romi and Billo Group in connivance with those people and to save them involved me in this case and got recovered false and incorrect evidence against me."
7. The learned trial Court vide judgment dated 9-6-2010, convicted and sentenced the appellant as mentioned op.Cit, hence this appeal.
8. Learned counsel for the appellant submits that according to prosecution's own case besides the appellant two unknown persons were nominated by the complainant P.W.3 in her F.I.R.; none from those was ever traced out during the investigation by the Investigating Officer and ultimately report under section 173, Cr.P.C. Was submitted against the appellant but fact remains that an unknown accused also made fire shot which hit on the arm of Muhammad Shahbaz and this injury exists as injury No,1-A, the entry and 1-B the exit; this fact by itself creates a doubt in the veracity of the prosecution case particularly when no description of any of the unacquainted accused was mentioned by the complainant; before the learned trial Court complainant and her son Aamir Sadiq appeared as P.W.4 also followed the steps of her mother P.W.3 vis-a-vis unacquainted accused persons. Learned counsel further submits that the incident took place during the dark night hours and no source of light has either been mentioned in the F.I.R. Or any bulb, tube or any other material through which the light was litting at the time of occurrence was not taken into possession by the Investigating Officer to prove this fact. However, about the same in the scaled site plan it has been mentioned about it but when the complainant Mst. Munawar Bibi and Aamir Sadiq eyewitnesses deposed before the learned trial COurt did not disclose any source of light, so much so while putting the question No,2 to the appellant in his statement under section 342, Cr.P.C.
About the source of light it has not been made mention, therefore, it is justifiably concluded that at the time of occurrence either there was darkness or there was no source of illumination even otherwise, the night is regarded bloomy/darkness; obviously if the dark shadows are there then identification of even an known person may be doubted, therefore, the prosecution has not been able to prove that at the time of alleged incident some source of light was there under which the P.Ws. Could see the incident. Learned counsel submits that the motive has been falsely set up in the F.I.R.; no evidence of any sort of scrimmage was brought on the record and it has also been mentioned in the F.I.R. That there was reconciliation got made- by Muhammad Sadiq father of the deceased an eye witness (not produced) obviously no reason was existed with the appellant to commit the murder of the deceased especially when before the incident they were friends; another point has been agitated by the learned counsel for the appellant that on the sad night of incident allegedly the appellant brought the deceased from the house at about 10-00 p.m. On a motorcycle then why the complainant and other inmates permitted him to accompany the appellant and where the deceased remained till befalling of the incident, there is no evidence on the record.
Learned counsel further adds that had the intention, of the appellant to commit the murder of Muhammad Shahbaz deceased, then he would have been done to death earlier to the given time as the deceased was allegedly in the siege of the appellant and two other unknown accused persons. Another point has been agitated that the deceased did not receive fire shot inside the house of the appellant and moreso the point at which the deceased received fire shot and up to the shop of Shafi milk seller where he allegedly fell and from there he was to sit on motorbike for the Mayo Hospital, no trail of blood has been proved or brought by the prosecution. Learned counsel submits that the story of the prosecution mentioned in the F.I.R. Does not appeal to reasons, the same has been highlighted as that how it was possible for the appellant and unacquainted accused persons to lift the deceased in an injured condition in presence of four eye- witnesses to shift him to the hospital for his treatment otherwise, the prosecution case is that appellant intended to kill the deceased. Learned counsel has also submitted that assertion of the prosecution that the P.Ws. Followed the appellant up to the Hospital and in the Hospital deceased spoke before them that he was fired at by Muhammad Awais appellant has not been proved on the record for the reasons that the doctor has categorically said in the post mortem report that death was immediate after the receipt of injuries and in the cross-examination the doctor has explained immediately means within 15 minutes whereas the complainant categorically admitted in her cross-examination that 30 minutes were taken by Rickshaw to reach to Mayo Hospital and prior to that deceased was died; no evidence is available on the record that on the way from the place of befalling of the occurrence up to the main gate of the Hospital any interview or meeting had taken place by the P.Ws. And the deceased, therefore, it is concluded that before the arrival of the P.Ws. At Mayo Hospital the deceased had already expired, therefore, this version can also not be believed and makes the prosecution case doubtful; another point has been agitated that in the Hospital the complainant party never told to any body that the appellant was present who had brought the deceased in an injured condition is the real culprit and he may be subdued, all these circumstances, makes the prosecution case doubtful and proved that P.Ws. Did not see the occurrence. Learned counsel further submits that false recovery of a broken lock and iron hammer has been planted upon the appellant in order to strengthen the prosecution case and in this way the report is also dubious and at the end learned counsel submits that the most important document of the prosecution case is inquest report of the deceased prepared by the Investigating Officer in the Emergency Ward of Mayo Hospital, Lahore, in which on its end no date or time has been mentioned so much so names of two persons Aamir Sadiq an eye-witness and Muhammad Fayyaz another person but the same has not been found signed by them and on the stamp of Police Station Saddar Shandara Town, Lahore, no date has been mentioned. Learned counsel submits that indefeasible duties have been on the prosecution to prove this case beyond any shadow of reasonable doubts but in this case the prosecution has miserably failed to outrage the same. Learned counsel has further submitted his arguments that mere on suggestions or on the alternate and on ultimately the accused/appellant cannot be made responsible for the commission of an occurrence, therefore, by accepting the appeal impugned judgment may be set aside and the appellant may be ordered to be acquitted.
9. Learned Additional Prosecutor-General assisted by the learned counsel for the complainant has argued that the appellant has been nominated in the F.I.R.; the injury attributed to him has been declared by the doctor as mortal; motive of false involvement has not been attributed to the prosecution; the deceased was taken by the appellant from his house in presence of the P.Ws. At about 10.00 p.m. On the woeful night but thereafter, he died and in this way the burden lies upon the appellant to establish that how he was murdered and in fact the occurrence of murder was seen by the eye-witnesses; the appellant in order to give colour to the murder of the deceased as he was caused injuries in the commission of robbery/dacoity has managed to take the deceased in the Hospital so that he may be absolved of the charge. Learned counsel submits that matter was reported to the police without any delay and the case of the prosecution is that deceased died in Mayo Hospital whereas appellant in his statement recorded under section 342, Cr.P.C. Has also admitted that he took the deceased to the Hospital in an injured condition where he died, therefore, no doubt is left to prove the case against the appellant; moreso the ocular account is fully corroborated by the medical evidence and the empty which had been taken into possession by the Investigating Officer from the place was sent to the office of Forensic Science Laboratory Lahore under a sealed pack and thereafter, the recovered pistol was also sent; report of the Forensic Science Laboratory shows that the empty had been fired from the barrel of the pistol, in this way, the prosecution case right from the taking of the deceased from his house by the appellant up to his death and then the proceeding on the dead body at Mayo Hospital and thereafter the recovery of the weapons and its corroborative report of Forensic Science Laboratory coupled with the recovery of a broken lock and hammer all these pieces of evidence have proved the case against the appellant beyond shadow of reasonable doubt, therefore, appeal may be dismissed.
10. Arguments have been heard. Record has also been seen by eagle eyes.
11. Exh.PA, the complaint, upon which the F.I.R. Was chalked out reveals that before the alleged incident of motive which had happened few days earlier to the happening of unfortunate incident of murder, deceased and the appellant were friends and after the quarrel of motive father of deceased Muhammad Sadiq got them revived on their first position as friends thereafter the deceased and the appellant had been seen each other. In this way, the motive set up by the prosecution does not appeal to reasons and even otherwise, the same has not been proved that why a quarrel has happened between the deceased and the appellant and at what place and time. Even no witness has been brought on the record in this respect and moreso Muhammad Sadiq though claimed as eye-witness has not appeared before the court to prove the motive and obviously withholding of his evidence by the prosecution would be presumed otherwise by virtue of provision of Article 129 of Qanun-e-Shahadat Order Clause 9. So in these circumstances, the prosecution has not been able to prove the motive set up in the F.I.R.
As per the F.LR., the appellant came at the house of the complainant on the eventful night at 10-00 p.m. And on a motorcycle the deceased accompanied him by asking the appellant to participate in a wedding ceremony, it is natural when there was no grudge, the deceased accompanied the appellant and if there was any thing wrong either in the mind of the deceased or inmates of the deceased, then he might have himself refused to accompany the appellant or inmates i.e, the P.Ws. Might have forbidden to accompany the appellant but this never happened meaning thereby that there was nothing of any sort about any either in the mind of the appellant or anything was lurking in the mind of the deceased while accompanying the appellant. More so, when the deceased did not return up to late hours of night, the P.Ws. Proceeded towards the house of the appellant. Nobody knows that where the deceased and the appellant remained till lastly seen the deceased in an injured condition at about 3-15 a.m. It is preposterous and repellant to senses to believe that the appellant and his unknown particeps criminis waited arrival of the P.Ws. At the place of occurrence and then under their sight the deceased was fired at. The deceased might have been murdered during the night hours before the alleged time and another aspect is very important that the deceased did not receive fire shot intramural house of the appellant and this has also not been proved by the prosecution that at which place the deceased received fire shot whereas he ran to save his life and fell near milk shop of Shafi, but no trail of blood has been found available on the record. The deceased received allegedly two injuries and both were through and through and he was in his heydays obviously the falling of blood or oozing of blood out of the apertures of injuries was natural but no such blood was. Found, therefore, this version of the prosecution case that the deceased was made fire shot at one place and he fell on another place has not been substantiated on the record. Another aspect of the case which ultimately goes to the root of the prosecution case to make it highly doubtful the presence of the P.Ws. Is that allegedly the appellant put the deceased on his bike along with two unknown persons to drove him to the Hospital, why the P.Ws. Permitted the appellant and his co-accused to lift the deceased in an injured condition and how the P.Ws. Learnt or assessed that the injured was being taken to Mayo Hospital because it is not in the record that either any person has ever deposed that deceased was taken to Mayo Hospital for treatment. Again arrival of the P.Ws. In the Hospital by a Rickshaw and from meeting in emergency with the deceased is highly doubtful because the speed of an auto Rickshaw cannot compete the speed of a motorcycle. Then again another view is there in the prosecution version that the deceased told the complainant and other P.Ws. That he was fired at by the appellant in the Mayo Hospital and this fact has gone blighted by the doctor who says that death of the deceased was immediate after the injuries and further it has been got clarified in the cross-examination that what does it mean, then he has explicitly answered up to 15 minutes.
Further P.W.3 Mst. Munawar Bibi, the woeful mother of the deceased has stated in her cross- examination that Rickshaw took 30 minutes to reach to Mayo Hospital that if the time is passed as it has been brought on the record then the deceased must have lost his breathe before reaching of the P Ws. In the Hospital, then how this assertion can be proved that deceased told her mother and the P.Ws. That he was fired at by the appellant.
12. Indubitably the death of the deceased on account of fire shot injuries but medical evidence as alleged by the prosecution does not support vis-a-vis the distance of appellant and the deceased at the time of occurrence. During cross-examination the benighted mother states that appellant made a fire shot with his pistol on point black range at right flank of the deceased but the doctor has not observed any sign of blackening, burning or tattoing on the apertures of the injury attributed to the appellant. It has also been noticed that the course of travelling of the bullet inside the bodies from the inwards to the downwards. So far as the injury attributed to the unknown accused is concerned, this has not been attributed to the appellant and the unknown accused persons have never been traced out, therefore, the said injury cannot be attributed to the appellant and the injury attributed to the appellant has been found contradicted vis-a-vis distance is concerned as held hereinabove few lines. Inquest report is one of the important document of the prosecution case, the same has been gone through and at the end of the same, no date has been mentioned by the Investigating Officer, the same has not been found signed by the persons who were available there though names have been mentioned as Aamir Sadiq, the eye-witness and Muhammad Fayyaz, these all facts justifiably permit to conclude that the incident was not seen by the P.Ws.
' So far as the recovery of padlock and hammer is concerned, that is inconsequential in the circumstances of the case. Therefore, it has been considered expendable to dilate upon it.
' So far as the recovery of the pistol allegedly on the pointing out of the appellant is concerned, it has been noticed that appellant was arrested on 25-1-2006 and the recovery of pistol along with a missed bullet was effected on the pointing out of the appellant on 2-2-2006. Before it two crime empties of .30-bore pistol had already been recovered and made it into a sealed parcel by the Investigating Officer but the inquest report shows that crime empties were received in the office on 28-1-2006 after the arrest of the appellant. The pistol was received there on 4-2-2006 and in this way, every prospect exists that the empties were fabricated after the arrest of the appellant and these suitable dates were made fit in the prosecution case, to procure a report of the Forensic Science Laboratory in the positive and in this backdrop with reference to the dates the report of the Forensic Science Laboratory has become doubtful.
' Three C.Ws. Were examined before the Court as Matloob-urRehman C.W.1, Ahmad Ali alias Chand C.W.2 and Umar Virk S.P C.W.3. C.W.1 has stated that Muhammad Awais appellant came at the spot after 5/6 months of the occurrence and upon the asking of him he and his nephew namely Chand took the deceased to Police Station and he informed the family of the deceased about the incident.
C.W.2 Ahmad Ali has also made statement on the same lines whereas statement of C.W.3 cannot be taken to consideration on account of police opinion.
So far as the version of the appellant under section 342, Cr.P.C. Is concerned, about the happening of the incident either the same has to be accepted or denied in toto but again one cannot becomes oblivious to this legal aphorism that burden of proof also assumes on the prosecution and even on the failure of the plea taken, accused cannot be held responsible for the commission of crime provided the prosecution fails and in this respect reliance has placed on Azhar Iqbal v. The State (2013 SCM R 383).
13. For what has been discussed above, tout ensemble of the same is that prosecution has not been able to prove its case against the appellant beyond shadow of reasonable doubt. Therefore, the instant appeal is allowed. The impugned judgment of conviction and sentence is set aside. The appellant is acquitted of the charge. The appellant shall be released from the Jail indistanter if not required in any other case.
13. As far as Criminal Revision No,837 of 2010 seeking enhancement of quantum of sentence is concerned, for the reasons recorded above I see no merit in the instant revision petition, the same is also dismissed.