' ABDUL SAMI KHAN, J.--Through this Appeal under section 410, Cr.P.C. Tafseer Abbas Shah appellant has called in question the judgment dated 22-10-2010 handed down by the learned Additional Sessions Judge, Gujar Khan, District Rawalpindi in his capacity as Juvenile Court wherein the appellant was convicted under section 302(b), P.P.C. For causing the death of Muhammad Sohail deceased and was sentenced to imprisonment for life. He was also ordered to pay compensation of Rs,1,00,000 to the heirs of the deceased under section 544-A, Cr.P.C. Or in default of payment thereof to further undergo simple imprisonment for one year. Benefit of section 382-B, Cr.P.C. Was extended in favour of the appellant. The appellant has challenged his conviction and sentence before this Court through the instant appeal.
2. According to the prosecution story set forth in the F.I.R. The complainant is resident of Ward No, 16, Dhok Hayat Ali and he is labourer by profession. On 30-3-2005 at about 6.00 pm the complainant and his elder brother Muhammad Sohail were present in an open plot at Ward No, 16 when Tafseer Abbas Shah and Riffat Shah sons of Naseer Shah alias Sheray Shah, armed with pistols came there.
Riffat Abbas Shah raised lalkara to the effect that Muhammad Sohail should be given taste for indulging into litigation with him and thereafter Tafseer Abbas Shah made straight fire with his pistol which landed on the chest of Muhammad Sohail, elder brother of the complainant. Upon receipt of fire Muhammad Sohail fell on the ground. Brother of the complainant Muhammad Akmal and his maternal uncle namely Ghulam Asghar have come to the spot and they have seen the occurrence. Upon seeing them Tafseer Abbas Shah and Riffat Shah escaped from the place of occurrence. The complainant along with his brother and maternal uncle were removing Muhammad Sohail injured to the hospital but he succumbed to his injury and died on way to hospital. The motive set up in the F.I.R. Is previous litigation between the parties. Upon the statement made by the complainant the police registered formal F.I.R. No,189 of 2005, dated 30-3- 2005 for an offence under section 302, P.P.C. Read with section 34, P.P.C. At Police Station Gujar Khan, District Rawalpindi. The investigation in this case was conducted by Liaquat Ali, S.-I. Who inspected the place of occurrence; prepared rough site-plan Exh.PL; secured bloodstained earth from the place of occurrence vide recovery memo Exh.PF; on 5-5-2005 arrested the appellant as well as his co-accused Riffat Shah; on 9-5-2005 recovered pistol .30-bore P1 from Tafseer Abbas Shah appellant and after sealing it into parcel prepared recovery memo Exh.PC; recorded the statement of the prosecution witnesses under section 161, Cr.P.C. Found the appellant guilty and submitted report under section 173, Cr.P.C. Before the learned trial Court. Charge was framed against the accused on 28-4-2010.
3. The prosecution in order to prove its case examined as many as 8 witnesses before the learned trial Court. The ocular account in this case has been furnished by Muhammad Rohail complainant (P.W.1) and Ghulam Asghar (P.W.2). Muhammad Rohail complainant (P.W.1) also stated about the motive. Muhammad Shafique (P.W.5) appeared as recovery witness of pistol .30-bore P1 vide recovery memo. (Exh.PC). Liaquat Ali, S.-I./Investigating Officer appeared before the learned trial Court as (P. W.8) who investigated the case in hand and stated about various steps taken during the investigation of this case. The medical evidence in this case was furnished by Dr. Mushtaq Ahmed Sehar, SMO, RHC, Kallar Syedan (P.W.3). Rest of the prosecution witnesses were almost formal in nature.
4. In his statement recorded under section 342, Cr.P.C. The appellant denied all the allegations levelled against him by the complainant and professed his innocence. He did not make statement on oath under section 340(2), Cr.P.C. And also did not opt to produce any evidence in his defence.
In response to a question that why this case against you the appellant replied as under:-- "The deceased was man of bad character and he was done to death by some unknown person as he was involved in nefarious activities. The deceased was loose character Youngman and used to chase the girls of the locality. On the day of occurrence the deceased was found in an objectionable condition with some lady in Ward No, 14 whereas he was resident of Ward No, 16 and jumped over the wall leaving behind shoes and ran away bare-footed. Some unknown inmate of the house ran behind the deceased and had confrontation at the place of occurrence and deceased was done to death at that venture. The complainant and eye-witnesses were not present at the spot at the time of occurrence and place of occurrence. They were subsequently called from their -respective place and were set up witnesses. Due to enmity, grudge and false suspicion I have been implicated in the instant case whereas I am innocent and got nothing to do with the alleged offence. All the P. Ws. Are related to the deceased and inter se. They have deposed falsely on account of their relationship with the deceased and they are inimical towards me".
5. Upon completion of the trial the learned trial Court found the case against the appellant to have been proved beyond any reasonable doubt and, thus, it convicted and sentenced him as mentioned above and upon finding the case to be false against his co-accused Riffat Shah the learned trial Court acquitted him of the charge. Hence, this appeal before this Court.
6. The learned counsel for the appellant contends that the judgment dated 22-10-2010 passed by the learned Additional Sessions Judge, Gujar Khan, District Rawalpindi is result of misreading and non-reading of evidence recorded by him. The prosecution has failed to prove any motive against the appellant and it is settled law that once a motive is set up by the prosecution against an accused it is none else but the prosecution which has to prove the same and in case of failure to prove the motive the prosecution has to suffer. The presence of the complainant (P.W.1) and the eye-witness (P.W.2) at the spot is not proved at the relevant time as conduct showed by them thereat does not appeal to a prudent mind because both the eye-witnesses being close relatives of the deceased did not interfere at the time of occurrence, let loose the appellant to do away with the deceased. Had the P.Ws. Present at the place of occurrence they would have interfered in order to save the life of the deceased. Admittedly the Police Station lies between the place of occurrence and Tehsil Headquarter Hospital and one has to pass in front of the same before reaching the Police Station but the complainant and P.Ws. Did not approach the Police Station when the deceased was taken to hospital in injured condition which clearly shows that they were not present at the place of occurrence. According to both the eye-witnesses the fire was made by the appellant from a distance of 4/5 feet but there is blackening around the wound and according to the medical jurisprudence blackening around the wound only occurs if the fire is made from a very close range. Both the eye-witnesses P.W.1 and P.W.2 have admitted during cross-examination that they have not put bandage on the wound of the deceased nor they have put water in the mouth of the deceased. Both the eye-witnesses have not produced their clothes before the Investigating Officer as admittedly both of them have carried the deceased to the hospital and it was not possible in such like situation that the clothes of the eye-witnesses were not smeared with blood of the deceased. Both the eye-witnesses are not truthful witnesses and on the same set of evidence co-accused of the appellant namely Riffat Shah has been acquitted and the complainant had not filed any appeal against his acquittal. According to the prosecution story the occurrence took place in a ground during cricket match but no independent person was produced by the complainant in this case. Even nobody from the boys who were allegedly playing cricket had been produced as P.W. Before the learned trial Court. According to the site-plan no cricket ground is mentioned therein, even the pitch and the wickets are also not shown in the site-elan. The eye- witness account was furnished by highly interested and inimical witness. Recovery of weapon of offence, i.e, pistol .30-bore P1 has been planted upon the appellant to strengthen the prosecution case. Even otherwise there is glaring violation of section 103, Cr.P.C. As no independent person from the locality was associated with the recovery proceedings. As no empty was taken into possession by the Investigating Officer from the' place of occurrence so the recovery in this case has become inconsequential. According to the site-plan the position of the deceased and the appellant is such that the deceased cannot sustain firearm injury on the chest of his body as alleged by the P.Ws. As a matter of fact it was an unseen occurrence and the complainant as well as eye-witnesses reached at the place of occurrence after receiving information at a time when the occurrence had already taken place. Both of them had not seen the occurrence but due to previous enmity between the parties they had deposed against the appellant and his co-accused before the learned trial Court. The deceased was a man of immoral character and on the day of occurrence he entered into a house, situated in Ward No,14 and was found by the inmates of the house in objectionable position with a lady and under grave and sudden provocation somebody from the inmates of that house fired at the deceased while he was running away from the house. The prosecution has miserably failed to prove its case against the appellant and it is golden principle of criminal jurisprudence that benefit of doubt, if any, has to be given to the appellant not as a matter of grace but as a matter of right. Only one circumstance creating doubt is enough to break the chain of the prosecution tied around the neck of the appellant and the same is also sufficient to acquit the appellant of the charge but in this case the evidence adduced by the eyewitnesses is full of contradictions, thus, the conviction in not justified at all.
7. On the other hand the learned Deputy Prosecutor-General contends that the appellant is nominated in the promptly lodged F.I.R. With specific role of inflicting a fatal shot to the deceased.
There is no enmity between the parties to falsely involve the appellant in this case. The parties are resident of same locality, they were known to each other so there was no chance of mistaken identity or substitution. Even otherwise the appellant has failed to establish that why the complainant would let off the real culprit and falsely involve him in this case. The injury attributed to the appellant is also borne out from the Post-mortem Examination Report. The medical evidence in this case had provided full corroboration to the ocular account furnished by the eye-witnesses. It is a case of single accused. The appellant himself is a man of bad character and Exh.PN established that he is involved in so many cases of moral turpitude and narcotics. The prosecution witnesses had proved this case through cogent and confidence inspiring evidence and in spite of lengthy cross-examination by the defence they remained consistent on all material points. The prosecution has successfully proved its case against the appellant in shape of ocular account duly corroborated by the medical evidence and recovery of weapon of offence.
8. I have heard the learned counsel for the appellant and the learned Deputy Prosecutor-General and have also perused the record of this case with great care and caution. It has been observed by this Court that the occurrence in this case had taken place on 30-3-2005 at a distance of two kilometers away from the Police Station Gujar Khan, District Rawalpindi at about 6-00 p.m. Which was reported on the same day at 7-45 p.m. It is notable that deceased was taken to the hospital at 6-30 p.m. Within thirty minutes of the occurrence. All these facts show that F.I.R. In this case has not only been lodged with sufficient promptitude but the same facts also made it crystal clear that the matter was reported to the police without deliberation or consultation by the complainant.
9. It. Is a case of two versions, one put forth by the prosecution in the F.I.R. And the other brought on record by the defence through statement under section 342, Cr.P.C. Made by the appellant during the trial. According to the prosecution case Muhammad Sohail deceased was done to death by the appellant in an open plot by a fire-shot of pistol .30-bore whereas the appellant has taken altogether different stance with regard to the death of the deceased and according to him the deceased was a man of bad character and he was done to death by an unknown person who had seen the appellant in compromising position with his womenfolk as stated by the appellant in his statement under section 342, Cr.P.C. It is well-settled principle of criminal jurisprudence that prosecution is under legal obligation to prove its case beyond any shadow of doubt irrespective of defence taken by the accused, therefore, I shall take first the case of the prosecution set forth in the F.I.R.
10. To prove the case against the appellant prosecution examined Muhammad Rohail complainant (P.W.1) and Ghulam Asghar (P.W.2) who both had sufficiently explained the mode and manner of the occurrence, place of occurrence, locale of injury sustained by the deceased on his chest and kind of weapon used during the same. Both have categorically stated before the learned trial Court that it was only the appellant who first raised lalkara showing his intention to commit the murder of the deceased and then made a fatal fire-shot with his pistol .30-bore at Muhammad Sohail deceased which landed at his chest. It was only the appellant who is responsible for committing the Qatl-e-Amd of the deceased. Both the witnesses were subjected to lengthy cross-examined by the defence but both of them remained consistent on all material aspects and successfully given answered of all the questions raised by the defence. Although the deceased was brother of the complainant P.W.1 and maternal nephew of P.W.2 yet mere relationship of the deceased with these two prosecution witnesses is not enough to discard their testimony especially when they both have no personal or malice against the appellant to falsely involve him in this case. During the arguments the learned counsel for the appellant has laid great emphasis to disprove the presence of the eye-witnesses 'at the spot at relevant time but the Postmortem Examination Report of the deceased clearly established that the name of Ghulam Ashgar (P.W.2) son of Shakar has duly been incorporated in column of persons who identify the body of the deceased which fact made it apparently clear that he was not only present at the place of occurrence but he also accompanied the complainant in shifting the deceased to the hospital. It was not possible for the prosecution to manage his presence at hospital within thirty minutes to pose him as an eye-witness of the occurrence. So the presence of Ghulam Asghar (P.W.2) at the place of occurrence at the relevant time is substantiated from the Post-mortem Examination Report. It is also an admitted fact that the parties to this case were resident of same locality and they were known to each other so there was no question of mistaken identity of the appellant in this case. More over it does not appeal to a prudent mind that a real brother would let off the real culprit who committed the murder of his brother and involved a false person.
11. The defence has also seriously criticized the place of occurrence while referring the site-plan wherein it has been pointed out that the site-plan does not mention any cricket ground having pitch for playing cricket. In this context I shall observe here that in our society the boys used to play cricket in any open place situated near to their residence and they do not bother to choose proper ground for this purpose after observing a long travelling because proper cricket grounds are not available in our country in every populated area, especially in remote areas. Even otherwise the place of occurrence is not disputed because the Investigating Officer has collected blood-stained earth from the spot which was not challenged by the defence during investigation at any forum.
The discussion made above leads this Court to conclude that the ocular account furnished by both the above said eyewitnesses in this case has fully proved throligh their sound, cogent, motivating and confidence-inspiring evidence led by them before the learned trial Court.
12. Medical evidence in this case furnished by Dr. Mushtaq Ahmed Sehar, SMO, RHC Kallar Syedan (P.W.3) is absolutely in line with the ocular account. I have noticed that statement of doctor made before the learned trial Court was subjected to cross-examination by the defence but nothing helpful could be extracted from the same. Post-mortem Examination Report fully corroborates the ocular account regarding receipt of injury, weapon of offence used by the appellant and time between injury and death. Doctor has found only one firearm injury on chest of the deadbody which according to him has caused serious damage to heart and lung (vital organs) of the deceased and the same was found sufficient to cause death in ordinary course of nature. The learned counsel for the appellant, while arguing the case pointed out that the fire according to the site-plan was made from a distance of 4/5 feet and if the fire hit from such a distance blackening could not occur but the doctor has observed blackening around the wound in this case which fact establishes that the witnesses had not seen the occurrence. In response to this argument I would like to point out here that in his cross-examination the doctor has categorically stated that blackening around the wound can occur if fire is made from one inch to 3/4 feet which is also the case of prosecution. Even otherwise it is not expected from the villagers that they will point out exact distance or direction of deceased and the appellant. So much so it is also observed that while making fire a person having pistol in his hand always extends his arm for the purpose of taking aim towards his target and then fires at him, so in this way the ocular occurrence is fully in line with medical evidence. So far as the contradiction of direction between the appellant and the deceased is concerned it is settled principle that with the passage of time a person looses its memory and could not make exact grip over the matter. Admittedly the occurrence has taken place in this case in the year 2005 and the prosecution witnesses had recorded their statement before the learned trial Court on 23-8-2010 which shows that much time has elapsed between the occurrence and the statement of P.Ws. Recorded by the learned trial Court. Thus, minor discrepancies pointed out by the learned counsel for the appellant are natural and they do not have any injurious or vital effect upon the case of the prosecution.
13. During the investigation of this case the appellant had led to recovery of pistol .30-bore PI which had been taken into custody by the Investigating Officer vide recovery memo Exh.PC. According to the report of Forensic Science Laboratory Exh.PQ the pistol was in working condition. Thus, the recovery also provides sufficient support to the ocular account. Although according to the learned trial Court the motive is not proved yet it is settled law that when an occurrence is duly proved through well-furnished ocular account, fully corroborated by medical evidence and if motive is not proved even then it does not reflect adversely upon the prosecution's case as motive is considered by the courts of law only to determine the quantum of sentence.
14. Initially the prosecution had booked two culprits in this case, i.e, the appellant and his co- accused who alleged to have perpetrated the offence mentioned in the F.I.R, but admittedly no overt act had been ascribed to the co-accused in the F.I.R, and that is why he had been acquitted of the charge by the learned trial Court. This is a case of single accused and substitution is a rare phenomenon. I am not going to believe that close kith and kin of the deceased, in a daylight occurrence, immediately reported to the police within shortest possible time, could substitute the real culprit with the present appellant. In such circumstances the Hon'ble Supreme Court of Pakistan has observed in the case of Khizar Hayat v. The State (2011 SCM R 429):- "In addition to it, it is a case of single accused, who has fired upon the deceased-Ghulam Ghous, therefore, substitution of a culprit is not possible besides it is a rare phenomenon where a witness whose close relative has been murdered would substitute the accused with an innocent person thereby allowing the actual accused to go scot-free".
' I also respectfully refer the case of Khalid Saif Ullah v. The State (2008 SCM R 688) wherein Hon'ble Supreme Court of Pakistan has observed as under:- "Substitution is a phenomenon of a rare occurrence because even the interested witnesses would not normally allow real culprits for the murder of their relations let off by involving innocent persons. In this context, reference can usefully be made to the case of Irshad Ahmad and others v.
The State and others PLD 1996 SC 138".
15. Now adverting to the defence plea taken by the appellant, during the trial the appellant stated that due to previous criminal litigation between the parties he has been involved in this case whereas in his statement under section 342, Cr.P.C. The appellant has taken the defence that the deceased was of immoral character and he was caught by the inmates of a house of Ward No, 14 in objectionable position with a woman and due to grave and sudden provocation some of the inmates of that house fired upon the deceased while he was running away from the house after scaling over the wall. I am afraid that the defence taken by the appellant is not plausible and the same does not appeal to a person of prudent mind. No question to this effect was put to any of the P.W. Including the Investigating Officer. The appellant failed to produce any evidence in support of his defence taken during trial or during investigation of this case. Thus, the bald defence taken by the appellant did not find support from any corner so as to be relied upon by this Court.
16. In view of all above I am of the considered view that the learned trial Court has rightly convicted and sentenced the appellant under section 302(b), P.P.C. And has already consider the appellant to be a juvenile and awarded him life imprisonment. I do not find any good reason to differ with the judgment passed by the learned trial Court which is based upon proper appreciation of evidence available on the record and is in accordance with the principles of appreciation of evidence set down by Hon'ble Supreme Court of Pakistan in this regard. I, therefore, uphold the conviction and sentence passed against the appellant, resultantly, this criminal appeal filed by the appellant is dismissed.