' SAYYED MAZAHAR. ALI AKBAR NAQVI, J.---Narib alias Nariba son of Fateh Muhammad, caste Gujjar, resident of Chechian, Tehsil and District Gujrat, appellant along with Iftikhar Ahmed and Fateh Khan, co-accused (since acquitted) and Mukhtar (since P.O.) was involved in case F.I.R. No, 267, dated 25-5-2000, offence under sections 302, 109, 34, P.P.C., registered at Police Station Kanjah, District Gujrat, and was tried by Mr.. Manzoor Hussain, learned Additional Sessions Judge, Gujrat.
The learned trial Court seized with the matter vide its judgment dated 24-1-2007 convicted the appellant under section 302(b), P.P.C., and sentenced him to death as Ta'zir. The appellant was also burdened to pay Rs,3,00,000 as compensation to the legal heirs of deceased in terms of section 544-A, Cr.P.C. And in case of default in payment thereof, to suffer S.I. For six months.
2. Feeling aggrieved by the judgment of the learned trial Court, Narib alias Nariba/appellant impugned the same by way of filing Criminal Appeal No,33 of 2007 while the learned trial Court forwarded Murder Reference No,105 of 2007 for confirmation of death sentence inflicted upon Narib alias Nariba/convict in terms of section 374, Cr.P.C. As both the matters are arising out of one and the same judgment, therefore, these are being disposed of through single judgment.
3. Prosecution story as contained in the F.I.R (Exh.PK), which was lodged on the statement of Barkat Ali son of Jalal, complainant/P.W.7 is that he is resident of Mouza Chechian and involved in Zamindara. On 25-5-2000, Muhammad Rafique son of Rafi, caste Gujjar, resident of Jarr, relative of the complainant approached him with the request to help him in shifting his chaff to the house upon which the complainant along with Rehmat Khan son of Muhammad Khan, caste Gujjar, resident of the same village and Shehbaz son of Lal Khan, bhateja of the complainant, along with Muhammad Rafique boarded on a van and on reaching Borra Bantch Road, the complainant and others went towards Jarr. At about 4-00 p.m. When they reached near Tube Well of Muhammad Hussain near the soiling under KEEKAR trees Narib alias Nariba armed with pistol .30-bore, Mushtaq armed with dagger both sons of Fateh Muhammad and Iftikhar son of Fateh Khan armed with pistol .30-bore, who had already ambushed there, all at once attacked upon the complainant.
Narib alias Nariba made a fire shot with his pistol, which landed on abdomen of Shehbaz bhateja of the complainant. Iftikhar Ahmed son of Fateh Khan also made a fire shot with his pistol, which also landed on the person of Shehbaz, who fell on the ground and the complainant and others in- order to save their lives hid themselves behind the wall of Tube Well. In the falling condition Mushtaq inflicted multiple dagger blows, which landed on different parts of the body. The accused persons also remained raising lalkaras. The accused Narib, Musthaq and Iftikhar believing that Shehbaz was done to death while riding on. Motorcycle YAMAHA fled away from the scene of occurrence.
Thereafter the complainant and other P. Ws. Rushed towards Shehbaz, however, he had succumbed to the injuries.
' Motive behind the occurrence as alleged in the F.I.R. Was that Mukhtar Ahmed brother of Nariba was murdered by elder brother of Shehbaz due to which the instant occurrence was committed by the accused persons on the abetment of Fateh Khan son of Ahmed Khan.
4. After leaving Rehmat Khan and Muhammad Rafique to safeguard the dead-body, the complainant reached the Police Station and made his statement, which was reduced into writing in the shape of F.I.R. (Exh.PK) by Muhammad Hanif, S.I. (P.W.14). Thereafter, the Investigating Officer (P.W.14) proceeded to the place of occurrence, inspected the dead body, prepared injury statement (Exh.PN) and drafted application for postmortem examination. During the spot inspection, the Investigating Officer secured bloodstained earth vide recovery memo Exh.PC. He also took into possession crime empties and dagger (P-4) vide recovery memo Exh.PD. After the postmortem examination, on 26-5-2000 last worn clothes of the deceased bunyan shalwar (P-2) and qameez (P-3) were produced before the Investigating Officer, which he took into possession vide recovery memo Exh.PB.
' On 27-6-2000 Talib Hussain, Halqa Patwari (P.W.1) visited the place of occurrence and took rough notes on the pointing out of the prosecution witnesses and on the following day i.e, 28-6-2000 after preparing scaled site plan he presented the same to Investigating Officer, which was taken into possession vide recovery memo Exh.PA. The Investigating Officer handed over the case property to Moharrar and recorded his statement under section 161, Cr.P.C.
' Subsequently the investigation of the case was entrusted to Riaz Hussain Shah, S.-1. (P.W.15), who on 20-6-2003 on receipt of spy information arrested Narib Hussain appellant. During the course of investigation on 4-7-2003 the appellant after making disclosure led to the recovery of pistol .30- bore (P-6), which the Investigating Officer took into possession vide recovery memo Exh.PE. He also prepared site plan of the place of recovery Exh.PE/i. The Investigating Officer deposited the case property with Moharrar for its safe custody and onward transmission to the quarter concerned.
5. Having found the appellant guilty, the Investigating Officer prepared report under section 173, Cr.P.C. And sent the same to the Court of Session enrouted through Illaqa Magistrate as provided under section 190(2), Cr.P.C. On 6-3-2004, the learned Additional Sessions Judge, Gujrat, formally charge-sheeted the appellant to which he pleaded not guilty and claimed trial. Prosecution in order to substantiate its case produced as many as sixteen (16) prosecution witnesses.
6. Occular account in this case has come out from the statements of Barkat Ali complainant (P.W.7) and Rehmat (P.W.8). Talib Hussain Patwari (P.W.1) had prepared scaled site plan of the place of occurrence. Primarily the matter was investigated by Muhammad Hanif, S.I. (P.W.4), thereafter it came up before Syed Baqar Hussain, S.-I. (P.W.15) and finally the investigation was completed by Syed Riaz Hussain Shah, S.I. (P.W.16). Dr. Muhammad Akram (P. W. 13) had conducted postmortem examination upon the dead body of deceased and found following injuries on his person:- "1-A. Lacerated gutter shaped wound about 11 x 3 cm on the interior side of upper end of neck starting from the middle of neck and extending up to the lateral border of mandible below the chin.
Having blackening and burning around the margin and stained with blood.
1-B. Three lacerated wounds each about 2 x 1 cm size on the lateral side of neck on left side below the left finger with everted margin.
2-A Lacerated wound on the right upper end of neck about 2 x 1 cm with inverted margins and having blackening around the edges.
2-B Lacerated wound about 2 x 1 cm on the right side of neck on posterior side with everted margin.
3. Lacerated gutter shaped wound about 4 x 2 cm on the upper end of right shoulder having blackening around it muscle deep.
4-A A lacerated fire arm wound about 1-1/2 x 1-1/2 cm on the posterior side of chest on the right side near the axilla with inverted margins.
4-B A lacerated wound about 1 x ,1 cm on the posterior side of chest on upper end on the right side with everted margin.
(5) Lacerated wound about 1 x 1 cm with ineverted margins had multiple pin wholes penetration in an area of 5 x 5 cm on the lateral side of left lumber region.
(6) A lacerated gutter shaped wound oblique in direction on the posterior lateral side of left forearm about 5 x 1-1/2 cm muscle deep with having blackening around the wound.
' After conducting the postmortem examination, the doctor rendered the following opinion:- "After the careful examination' of the dead body, all the injuries were ante-mortem caused by fire arm weapon and death occurred due to the excessive bleeding. Probable time that elapsed between injuries and death within about a few minutes, between death and postmortem 16 to 20 hours."
' Statements of rest of the prosecution witnesses are formal in nature.
7. On 20-6-2005, learned ADA gave up Muhammad Rafique, P.W. Being won over. Vide his statement recorded on 19-12-2005, learned DDA gave up Ghulam Abbas C/1057 being unnecessary. Umar Hayat Head-Constable was given being dead whereas Jahangir Haider Inspector and Muhammad Asrhaf, P.Ws. Were given up being unnecessary by learned DDA on 20- 5-2006. Learned DDA after tendering in evidence the report of Chemical Examiner (Exh.PQ) and report of Chemical Examiner (Exh.PR) vide his statement dated 24-5-2006 closed the prosecution evidence.
8. The appellant was also examined under section 342, Cr.P.C, wherein he opted neither to produce defence evidence, nor to appear as his own witness in terms of section 340(2), Cr.P.C. In disproof of the allegations levelled against him in the prosecution evidence. While replying to the question why this case against him and why the P.Ws. Deposed against him, Narib alias Nariba, appellant made the following deposition:-- "I am innocent and have falsely been involved in this case due to previous enmity for filling empty belly of prosecution. P.Ws. Have-deposed against me for the reason that they are inimical against me and due to previous enmity they deposed against me. As a matter of fact none of cited P.Ws.
Was present at place of occurrence furthermore they are related/interested and chance witnesses."
' Learned trial Court after evaluating the evidence available on record found the version of the prosecution proved beyond shadow of reasonable doubt resulting into his conviction in the afore stated terms.
9. Learned, counsel for the appellant while opening his arguments contended that the learned trial Court has passed the impugned judgment in a stereotype manner without adverting to the real facts of the case and material/evidence available on the record. Learned counsel vehemently contended that the story advanced in the crime report on the face of it does not appeal to reason especially when it is the prosecution own case that the complainant along with deceased and Rehmat Khan on the asking of Muhammad Rafique had accompanied in order to help him in shifting the chaff and they had gone to the place of occurrence per chance, hence there was no question of ambushing there by the appellant and other co-accused. Learned counsel contended that Muhammad Rafique, who is main stalwart and could have been most independent natural witness of the occurrence was not produced during the course of trial rather his statement was withheld being won over. Learned counsel added that if this was the situation even then the prosecution had full opportunity to declare him hostile and conduct cross-examination upon him in order to bring on record truth. Non-production of Muhammad Rafique, learned counsel argued, creates dents in the authenticity of the prosecution case. It was further argued on behalf of the appellant that Barkat Ali (P. W .7)/complainant and Rehmat (P.W.8) do not corroborate each other on salient features of the prosecution case, who even otherwise are not only closely related to the deceased rather they are inimical towards the appellant due to previous admitted enmity between the parties, which fact is spelled out from the bare reading of the crime report. Learned ' counsel next contended that both P.W.7 and P.W.8 have made dishonest improvements in order to strengthen the prosecution case. Learned counsel went on arguing that medical evidence is in contradiction to the occular account for the reason that as per averments of crime report, the fire shot allegedly made by the appellant landed on the abdomen of Shehbaz, however, there is no such injury on abdomen of the deceased rather as per postmortem examination report there is an injury on the edge of left flank. Learned counsel while referring to postmortem examination report further contended that as per opinion of the doctor time between death and postmortem examination was 16 to 20 years, whereas, as per prosecution witnesses of the occular account the occurrence had allegedly taken place at 4-00 p.m. And the postmortem examination was conducted at 12-30 a.m. (midnight) i.e, after eight hours of the occurrence, which belies the prosecution story. It was further stated on behalf of the appellant that the appellant has been alleged fire shot with pistol, however, as per statement of Dr. Muhammad Akram (P.W.13) who had conducted postmortem examination of the deceased, the injuries on the person of deceased were result of fire arm weapon in which cartridge is used. Learned counsel forcefully argued that in this backdrop recovery of pistol does not advance the prosecution case. It was next argued that as per prosecution version one of the co-accused was armed with dagger, who hadinflicted number of injuries on the person of deceased, however, the doctor had opined that none of the injuries on the person of deceased was result of sharp-edged or blunt weapon. Learned counsel while referring to statement of P.W.8 forcefully argued that actually the occurrence was committed by Naveed, who had developed illicit relationship with wife of deceased, the occurrence had taken place at abandoned area and the appellant has been roped due to previous enmity. In this backdrop, it was contended by learned counsel for the appellant, the prosecution case was full of material contradictions and the same lacking sufficient incriminating evidence, conviction passed by the learned trial Court against the appellant is in utter disregard to the canons of safe administration of criminal justice. The learned counsel, in the circumstances, prayed for clean acquittal of the appellant from the charge.
10. On the other hand learned DDPP assisted by learned counsel for the complainant vehemently opposed the contentions by learned counsel for the appellant with the averments that the prosecution through leading cogent and confidence inspiring evidence proved its case against the appellant and there was no occasion for the complainant, being real uncle (chacha) of the deceased, to have substituted the appellant in place of real culprits. Learned DDPP urged that the appellant was named in the F.I.R. With specific role of making firing on abdomen/ flank of the deceased, which proved fatal and the occurrence had been committed due to previous admitted enmity of murders. It was further argued that Barkat Ali (P.W.7) and Rehmat (P.W.8), the prosecution witnesses of the occular account, fully corroborate each- other on all aspects of the prosecution case and nevertheless they were put lengthy cross-examination, however, the defence failed to shatter their testimony. With regard to non-production of Muhammad Rafique PW, learned DDPP contended that the prosecution is always deemed to be at liberty to produce the evidence of its own choice and there is no compulsion to produce all the prosecution witnesses and mere non-production of Muhammad Rafique lends no support to the defence. It was argued that the occular account finds full corroboration from the medical evidence. The recovery of pistol on the pointing out of the appellant, it was urged, fully substantiates the prosecution case. It was next argued that the appellant had failed to take specific defence plea for his false implication in the instant case. It was finally submitted that the prosecution proved its case against the appellant beyond shadow of reasonable doubt, who also remained absconder for a reasonable period and was found guilty during the course of investigation and his name was placed in Column No,3 of the report prepared under section 173, Cr.P.C, hence, the learned trial Court while appreciating the prosecution evidence in its true perspective was well justified in convicting/sentencing the appellant.
11. We have given our anxious consideration to the arguments advanced by learned counsel for the appellant, learned counsel appearing on behalf of the complainant, as well as learned DDPP, and gone through the record available on file with their able assistance.
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12. In the instant case the occurrence had taken place on 25-5-2000 at 4-00 p.m. And the matter was reported to the police on the same day at 5-00 p.m. Whereas inter se distance between the place of occurrence and the Police Station is 5-1/2 miles. Prosecution in order to prove its case.
Adduced three types of evidence: (i) ocular account, (ii), medical evidence, & (iii) recovery of pistol coupled with motive of previous enmity. As per prosecution version put forth in the crime report when Barkat Ali complainant alongwith Rehmat; Shehbaz (deceased bhateja of the complainant) on the asking of Muhammad Rafique (not produced) had accompanied him to shift chaff to his house and when they reached near the Tube-well of Muhammad Hussain, the appellant armed with pistol .30-bore along with other co-accused who had already ambushed there and the present appellant had made a fire shot with his pistol .30-bore, which landed on abdomen of Muhammad Shehbaz. Admittedly it has come in the evidence of Barkat Ali (P.W.7) that Muhammad Rafique was not closely related to them, whose village was at a distance of 5 miles away from the residence of the complainant and that their passing by that area where the occurrence had taken place was but per chance, hence it does not appeal to reason that how the accused had ambushed there in order to commit the B murder of Shehbaz. The prosecution case is also silent on this point that why Muhammad Rafique had opted to proceed to the village of the complainant 5- miles away thereby seeking his help on petty matter i.e, in order to help him in shifting chaff and by what source of transportation he had approached the house of the complainant. As rightly contended by learned counsel for the appellant, prosecution story on this score does not seem plausible.
' As per contents of the crime report, which was also corroborated by the prosecution witnesses of occular account fire shot made by the appellant with his pistol landed on abdomen of Muhammad Shehbaz, however, if postmortem examination report is examined with naked eye there is no injury at the abdomen rather there is one injury on the edge of his left flank. Moreover, the injury ascribed to the appellant has been alleged having been inflicted with pistol .30-bore, whereas, Iftikhar co- accused was also shown to be armed with pistol .30-bore and Mushtaq Ahmed armed with dagger, however, two injuries on the 'person of deceased were termed lacerated gutter shaped wound about II x 3 cm. It has also come in the evidence of Dr. Muhammad Akram (P.W.13) that all the injuries on the person of deceased were result of fire arm weapon in which cartridge is used.
This fact squarely shatters the prosecution case especially when Mushtaq Ahmed co-accused was alleged multiple injuries with dagger at the person of deceased on falling condition, whereas, the doctor opined that none of the injuries were result of sharp edged or blunt weapon.
The duration between the death of the deceased and postmortem examination also contradicts the prosecution case. As per prosecution version the occurrence had taken place at 4-00 p.m. On 25-5-2000 and the postmortem examination was conducted at 12-30 a.m. i.e, after eight hours, whereas, the doctor who had conducted postmortem examination had opined duration between death and postmortem examination 16 to 20 hours, which fact vitiates the prosecution case set forth by the occular account.
' The recovery of pistol allegedly effected from the appellant at the time of his arrest is of no consequence to the ' prosecution case when medical evidence on this account is at variance with the prosecution evidence of the occular account. Moreover, no empty of pistol was sent to the office of Chemical Examiner for its matching with the pistol, hence the same, in no way, advances the prosecution case.
14. Bare reading of the crime report reflects that the complainant along with other prosecution witnesses and his bhateja had accompanied Muhammad Rafique in order to shift chaff to his house. In this situation the best possible natural evidence could be the statement of Muhammad Rafique, however, his statement was withheld by the prosecution, hence in this backdrop the prosecution case is squarely hit by Article 129(g) of Qanun-e-Shahadat Order, 1984. Guidance in this regard is solicited from the dictum of law laid down by the august Supreme Court of Pakistan in the case of Lal Khan v. The State (2006 SCM R 1846). If otherwise the prosecution was of the view that Muhammad Rafique was won over by the accused, it was at liberty to declare him hostile and to cross-examine him in order to advance its case especially in the circumstances when both Barkat Ali (P.W.7) and Rehmat (P.W.8) are not only closely related to the deceased rather due to previous admitted enmity between the parties, they are also inimical towards the appellant.
15. Admittedly out of three accused persons involved in the case, two have been acquitted by the learned trial Court on the same set of evidence. It is settled principle of law that if evidence of the prosecution is disbelieved qua major portion of the accused it cannot be believed qua the other in the absence of very strong corroboration. Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the cases of Akhtar Ali and others v. The State 2008 SCM R 6 Sheral alias Sher Muhammad's case (1999 SCM R 697) and Sher Bahadur's case (1972 SCM R 651).
16. As far as absconsion of the appellant as contended by learned DDPP is concerned, it is established principle of law that mere absconsion is not a proof of guilt of an accused. Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the case of Rasool Muhammad v. Asal Muhammad and another 1995 SCM R 1373 whereby their Lordships had held as under:-- "Disappearance of a person named as a murder/culprit after occurrence, is but natural, whether named rightly or wrongly--- Abscondance per se is not a proof of guilt of an accused person---It may, however, create suspicions against him but suspicions after all are suspicions."
17. As far as motive in this case as put forth in the crime report is concerned that is of enmity over murders between the parties, , however, it has come in the evidence of Rehmat (P.W.8) that Naveed had developed illicit relations with wife of Shehbaz and after the instant occurrence Habib Ullah son of Rehmat had committed the murder of his sister (widow of Shehbaz) and inflicted injuries on the person of said Naveed. Hence, possibility cannot be ruled out that due to illicit relationship between Naveed and wife of Shehbaz deceased, Naveed might have committed the murder in order to clear the path especially when the occurrence had been committed at an abandoned area.
18. Upshot of the above discussion is that the prosecution case is full of material contradictions/discrepancies especially when the medical evidence is at variance with the occular account, the opinion of the doctor that the injuries were result of firearm weapon in which cartridge is used coupled with the dimension of injuries, the manner of approaching the house of Muhammad Rafique by the complainant, Rehmat P.W. And Shehbaz deceased especially when Muhammad Rafique was not produced, which leads this Court to the conclusion that the occurrence was unseen and both the complainant and Rehmat (P.W.8) were not present at the place of occurrence at the relevant time. Moreover, unproved motive, uncorroborated recovery of pistol are the circumstances which create doubt in the authenticity of the prosecution version coupled with the fact that on the same set of evidence Iftikhar Ahmed and Fateh Muhammad co- accused were acquitted by the learned trial Court. In this backdrop it can be safely held that the prosecution has badly failed to bring home the guilt of the accused/appellant to substantiate its case on capital charge and the learned trial Court was not justified in convicting the appellant while basing upon such uncorroborated/contradictory evidence which even otherwise is full of flaws and conviction passed by the learned trial Court in the circumstances is against all canons of law recognized for the dispensation of criminal justice. As per dictates of law benefit of every doubt is to be extended in favour of the accused. Resultantly, the salutary principle of benefit of doubt is extended in favour of the appellant as a consequence whereof; Criminal Appeal No,33 of 2007 is accepted in toto.Conviction and sentence recorded in the judgment of the learned trial Court passed on 24-1-2007 is set at naught.Narib alias Nariba appellant is ordered to be acquitted of the charge in case F.I.R. No,267, dated 25-5-2000, offence under sections 302, 109, 34, P.P.C., registered at Police Station Kanjah, District Gujrat and he is directed to be released forthwith, if not required in any other case.
' Murder Reference No,105 of 2007 forwarded by the learned trial Court for confirmation of death sentence inflicted upon Narib alias Nariba convict fails and the same is answered in NEGATIVE.
Death sentence is NOT CONFIRMED.