' SADAQAT ALI KHAN, J.---This judgment shall dispose of Criminal Appeal No, 210 of 2013 filed by present appellant Mansoor Ahmed alias Poppy against judgment dated 10-4-2013 passed by learned Additional Sessions Judge, Bahawalpur according to which Mansoor Ahmed alias Poppy appellant was convicted under section 302(b), P.P.C. For causing Qatl-e-Amd of Muhammad Anwar deceased and sentenced to imprisonment for life along-with compensation Rs,2,00,000 (two lac.) payable to the legal heirs of the deceased Muhammad Anwar under section 544-A, Cr.P.C. And in default thereof 6-months S.I in case F.I.R. No, 111 of 2009 dated 5-3-2009 under section 302, P.P.C. Police Station Baghdad ul Jadeed, Bahawalpur.
2. Brief facts of the case as narrated in the complaint (Exh.PE) given by Muhammad Anwar (deceased) upon which formal F.I.R. (Exh.PE/1) was registered on 5-3-2013, are that he is resident of Chak No, 12/BC, Moor and labourer by profession and in the evening time there was marriage ceremony of son of Ashiq Hussain and Singers were performing in the ceremony. He further added that he along with his father was present in the marriage ceremony and Poppy son of Liaquat Ali Caste Arain and Muneer son of Muhammad Siddique (since P.O.) both armed with pistols were also present there and they tarted firing with their respective pistols and resultantly a fire made by Poppy hit him in front of his neck and a fire shot by Muneer Ahmed (P.0) hit Khalid son of lassan at the backside of his head and after receiving the fire he fell down on the ground and this occurrence has been witnessed by his father Hassan Din, Muhammad Mustafa and the other participants of the ceremony and then he was shifted to B.V. Hospital, Bahawalpur through 1122 Rescue.
3. The appellant Mansoor. Ahmed was arrested on 23-3-2009 and on 31-3-2007 during interrogation he disclosed and led to the recovery of pistol .30 bore P-10 under beneath the wall of his house, which was taken into possession vide recovery memo Exh.PG by Anayat Ali SI/L0 of this case P.W.9 attested by the P.Ws.
4. After the completion of the investigation, Challan was submitted before the trial court and trial court after observing the legal formalities under the Criminal Procedure Code framed the charge under section 302 P.P.C. Against the appellant on 29-11-2010 who pleaded not guilty and claimed trial.
5. Prosecution produced as many as eight witnesses i,e, Ghulam Shabbir Constable P.W.1, Niaz Ali Constable P.W.2, Muhammad Hussain P.W.3, Muhammad Rafique SI P.W.4, Zahid Iqbal alias Zahid Hussain P.W.5, Dr. Ch. Zafar Ali P.W.6, Doctor Syed Hamid Anwar P.W.7, Nasir Ghouri, Inspector P.W.8 Inayat Ali, SI/L0 of the case as P.W.9 and closed the prosecution evidence after tendering documentary evidence i,e, reports of Chemical Examiner Exh.PK and that of Serologist Exh.PL.
6. Statement under section 342, Cr.P.C. Of the accused was recorded by the trial court to which he pleaded not guilty and claimed trial. In reply to question "Why this case against you and why the P.Ws. Have deposed against you? The accused/appellant Mansoor Ahmed alias Poppy replied as under:-- "I have been falsely involved in this case due to previous enmity. P.Ws. Are closely related to the P.Ws."
' In reply to question "Have you anything else to say? The accused/appellant replied as under:-- "I am innocent. In fact there was a Jaga marriage ceremony of Muhammad Asif my close friend. I along with the Khalid Mahmood, Mustafa C.W. And more than hundred people of the locality participated. It was a single/Jaga ceremony where ariel firing was made and after 15-20 minutes Muneer Ahmed (since P.0) came there who fired twice with his pistol and accidentally one fire landed at the neck of deceased while the other struck against the head of Khalid Mahmood C.W.
Neither Muhammad Hussain nor Essa (given up) P.Ws. Were present at the spot. Mustafa and others called 1122 who took both the injured to the hospital. Muhammad Hussain P. W . In connivance with Inayat Ali, SI twisted the real facts and maneuvered the false accusation in the shape of Exh.PE. Muhammad Anwar never got recorded his statement as stated by the doctor and the C.Ws. And in order to safe the skin of their close relatives of the complainant party namely Muneer Ahmed from the murder of Muhammad Anwar deceased, they hatched up a false and fictitious story. I am innocent and has been prey of substitution of Muneer Ahmed close relatives of the complainant party as evident from FSL report Exh. DE. "
7. After the conclusion of the trial, learned trial Court convicted the appellant with above stated sentence. Hence this appeal.
8. Learned counsel for the appellant submitted that:--
(i) the judgment of the trial court is unwarranted by law and facts on the record and is liable to be set aside;
(ii) it is further submitted that prosecution has failed to prove its case beyond any reasonable doubt;
(iii) it is submitted that there are two stories given in the F.I.R. And the injured eye-witness and thus the learned trial court has committed illegality by not accepting the story of the injured eye- witness;
(iv) it is further submitted that medical evidence is corroboratory with the story mentioned in the F.I.R. And lastly submitted that appeal may be accepted;
9. On the other hand, DPG assisted by the learned counsel for the complainant has submitted that:---
(i) prosecution has proved its case beyond shadow of doubt;
(ii) it is further submitted that the dying declaration of the deceased is sufficient for the conviction of the accused as there was no motive for the false involvement of the appellant;
(iii) it is further submitted that other eye-witness Muhammad Hussain P.W.3 has supported the story of the prosecution corroborated with the recovery of pistol;
(iv) it is further submitted that prosecution has proved its case beyond shadow of doubt and learned trial court rightly convicted the present appellant with life imprisonment;
(v) he lastly submitted that appeal of the present appellant/accused may be dismissed.
10. I have heard the learned counsel for the parties and perused the record.
11. Munir Ahmad co-accused of the present appellant has been declared proclaimed offender by the trial court as during the trial he remained absent.
Motive
12. According to F.I.R. Ariel firing was made in the marriage ceremony but nobody came forward to prove that there was enmity and any dispute of civil or criminal nature was pending between the parties and there is nothing on the record B that any quarrel or hot words were exchanged between the accused and the deceased before the occurrence as such prosecution has failed to prove the motive against the appellant.
Recovery
13. According to prosecution case, accused/appellant was arrested on 23-3-2009 whereas appellant led to the recovery of pistol .30 bore P-10 which was taken into possession vide recovery memo Exh.PG but FSL report to this effect has not been tendered by the prosecution rather it was tendered by the defence as Exh.DE. So recorded in the statement of the appellant under section 342, Cr.PC. Exh.DE reveals that parcel of the empties received in the FSL on 15-4-2009 after the arrest of the present appellant and pistol allegedly recovered from the present appellant received in the FSL on 19-10-2009 and FSL found that crime empties had not been fired from the pistol of the present appellant. So, this was the reason that the prosecution did not produce report of FSL which was produced by the present appellant as Exh.DE, so, recovery is not proved.
Eye-witness
14. P.W.3 Muhammad Hussain appeared and stated that on 5-3-2009 at about 10:00 p.m he along with his son Anwar (deceased) came to attend the marriage ceremony of Asif son of Muhammad Ashiq. He stated that the singing segment (Jaagha) was in progress, Mansoor alias Poppy (present appellant) and Munir Ahmad (co-accused since P.0) both were armed with .30 bore pistols. He stated that Mansoor fired which landed on the neck of his son Anwar and fire of Munir hit Khalid C.W.2 on his back of head. He stated that he and Mustafa C.W.3 and other persons were also present at that time and witnessed the occurrence. He stated that he informed 1122 whose personnel came there and took both the injured to BV Hospital Bahawalpur. The appellant also reached at the hospital where his son Anwar got recorded his statement to the police which was read over to him and he thumb-marked the same. He stated in cross-examination that his statement was recorded under section 161, Cr.P.C. During the investigation by the police and he had recorded his statement that accused/present appellant was armed with .30 bore pistol which was confronted with Exh.DA where .30 bore is not mentioned. He admitted in his cross-examination that his statement was recorded on 6-3-2009; he further admitted that his statement was also recorded on 11-3-2009; he admitted in his cross examination that Munir Ahmad (P.0) of this case is from his brotherhood and is also his neighbourer. He admitted that Mustafa has witnessed the occurrence. He admitted during the cross-examination that on 25-4-2009, Khalid Mehmood injured eyewitness and Mustafa eye-witness along with so many independent persons joined the investigation and stated that deceased sustained injury at the hands of Munir (P.0) of this case and Khalid Mehmood also sustained injury from the hand of Munir accused (P.0). He stated in cross-examination that there was a dispute of wall between him and the present appellant.
15. On the other-hand, injured eyewitness appeared as C.W.2 and stated that on 5-3-2009, he was present in his house and on the same day he along with other companion went to the marriage ceremony of Asif. At about 10:00 p.m. Accused Mansoor Ahmad present appellant made firing and after 10/15 minute accused Munir Ahmad (sine P.0) also made firing. Due to firing of Munir Ahmad accused since P.O one fire shot hit Anwar deceased at his neck and one fire shot hit him at his head. In cross-examination, he stated that father of deceased namely Muhammad Hussain P.W.3 and Essa were not present there. He stated that when he came into senses in the hospital, he found Anwar deceased was lying there unconscious. He stated in cross- examination that there was no pressure on him. He stated that Muhammad Mustafa C.W.3 also made statement before the police in his presence. He stated in cross-examination that there was no previous litigation and enmity between Mansoor accused and the complainant. He stated in cross-examination that Ghulam Mustafa C.W.3 is his real brother and is his nephew (Bhatija). He admitted in his cross- examination that Munir and Mansoor both made firing in the marriage ceremony. He denied that he made statement before the police that on 5-3-2009, he along with Muhammad Hussain and Mansoor and Anwar deceased went to the marriage ceremony of Muhammad Asif. He denied that he made a statement before the police that Mansoor shot a fire which hit Anwar deceased on his neck while Munir shot fire which hit him on the back side of his head which was confronted to him as C.W.2/PA where it was so recorded. C.W.3 Mustafa stated before the court that on 5-3-2009 marriage ceremony of Asif was solemnized and there was a 'Jaagha' (singing program) and at about 10-00 p.m. Mansoor Ahmed. Made firing and after 15/20 minute Munir since (P.0) made firing. One fire was hit Muhammad Anwar and one fire hit Khalid. He admitted in cross-examination that Mansoor accused was present at the plaee of occurrence and he admitted in cross-examination that Mansoor also made firing during the occurrence and he denied the statement that he made the statement before the police that Mansoor made a fire which hit on the neck of Muhammad Anwar that statement was confronted to him as C.W.3 where it was recorded. He stated that he got recorded his affidavit that Munir accused made fire shot which hit Khalid Mehmood injured on his backside of his head. He volunteered during the cross-examination that his statement was not recorded by the police. Exh,DE is a report of the FSL Punjab Lahore according to which the crime empties of .30 bore pistol recovered by the police from the place of occurrence are C 1 and C2 whereas pistol recovered from accused Munir is marked as P-1 and pistol recovered from Maqsood Ahmed as Mark-P2 and empties C-1 and C-2 were examined _ and compared with test empties prepared from the pistols of .30 bore bodies signed marked as P1 and P2. The crime empty of .30 bore was marked as Cl had been fired from pistol of .30 bore body signed marked as P-1 whereas crime empty of .30 bore marked C2 had not been fired from the pistol of .30 bore pistol signed marked as P1 and P2 so no empty is matched with the pistol of the present appellant rather it was matched with the pistol of Munir Ahmed accused since (P.0) so C.W.2 and C.W.3 are believed to this extent that the fire of the appellant did not hit to Muhammad Anwar .Deceased. C.W.2 Khalid Mehmood also received injury at the place of occurrence and his presence cannot be doubted and he is exonerating the present appellant and stating that the fire of Munir accused since P.O hit Muhammad Anwar deceased and other fire of Munir hit him on backside of his head which is supported by the report of FSL Exh.DE so Muhammad Hussain P.W.3 could not establish his presence at the place of occurrence and otherwise it is not possible that P.W.3 had joined the singing program at night time with his real son Muhammad Anwar deceased. So there are two eye-witnesses Khalid Mahmood C.W.2 and Ghulam Mustafa C.W.3 who have been mentioned in the F.I.R. Are deposing different story from the story of P.W.3 regarding firing upon Anwar deceased.
So the version of C.W.2 and C.W.3 is supported by FSL as well as C.W.1 Ghulam Shabbir S.I whereas the presence of P.W.3 Muhammad Hussain is doubtful so his evidence is not believable and is discarded.
Dying declaration
16. P.W.9 Anayat SI stated that on 5-3-2009, he was posted at Police Station Baghdad ul. Jadeed Bahawalpur and on receiving information he reached BV Hospital where two persons namely Anwar deceased and Khalid Mehmood C.W.2 were present in injured condition. He recorded the statement of. Muhammad Anwar then injured (since deceased) Exh.PE which was read over to him and thumb-marked the same as Exh.PE/2. He prepared the injury statement of Anwar and Khalid Mehmood Exh.PF/1 and that of Khalid Exh.PG/1 and recorded the statement of P.Ws. Under section 161, Cr.P.C. In the statement of Muhammad Anwar then injured (since deceased) stated in Exh.PE before Anayat Ali SI as under:-- "he is labourer by profession and in the evening time there was marriage ceremony of son of Ashiq Hussain and singers were performing"
17. He along with his father were present in the marriage ceremony and Poppi (present appellant) and Munir Ahmad accused (since P.0) was also present there and started firing with their respective pistols resultantly one fire made by present appellant hit him in front of his neck and fire made by Munir since P.O hit Khalid.
18. P.W.6 Ch. Zafar Ali M.0 stated before the trial Court that Muhammad Anwar was brought by police on 5-3-2009 at about 10:34 p. m. In BV Bahawalpur and he examined him. He was fully conscious, well-oriented to time and place with B.P 110/70 temperature 98, pulse 90 R/R-80. On examination there was a lacerated wound on front of neck measuring size 1 cm x 1 cm into going blank deep with inverted margin and blackening present. Advised X-ray neck A/P lateral (KUO).
19. In the site plan Exh.PK the distance in between Muhammad Anwar deceased and appellant was shown 2/2-1/2 'Karam' which is equal to eleven feet. P.W.6 stated in his examination that Exh.PF is the MLC of Anwar where no witness is mentioned. He stated that if any witness was present he would have been mentioned the same. He further stated that Anwar then injured received 'bullet' injury in front of the neck. He further stated I.0 never submitted any application to the extent that injured Anwar was able to make his statement and similarly I had not signed any such document.
P.W.7 Doctor Syed Hamid Anwar QMC BWP stated that on 11-3-2009 I conducted the autopsy of Anwar deceased brought by the police at about 7-00 p.m. And the examination of the dead body was started on 8-00 p.m. He observed following injuries on external examination which is as under:- "There was a semi-circular wound .5x.5 cm on the interior aspect of neck between supra sternal notch and hyoid bone. The margins were inverted and there was no blackening and tottering present. This was the entrance wound.
' There was a semi-circular wound .5x.4 cm on the right side of survecal supine (back of neck) about 2 cm lateral to it. The margins averted and this was exit wound of injury No,
1. Injury was corresponding to tear present on cloth (kameez) wearing at the time of incident and clothes were in custody of the Police.
' Upon dissection of neck: Under line muscles, upper part of trachea, esophagus and lower survecal vertebrae were damaged along-with damage to the survecal spinal cord, also adjoining blood vessels were damaged as well.
' Cranium and spinal cord. As already described and survecal part of spinal cord damaged and lower cervical vertebrae damaged.
' Thorax. Upper part of trachea was damaged and anterior neck, blood vessels around trachea and esophagus were damaged, while other visceras were healthy and intact.
' Abdomen: Upper part of esophagus was damaged and all other visceras were healthy and intact.
' Muscles, bones and joints, Already described.
Remarks.
' After complete autopsy examination I was of the opinion that cause of death was injury No,1 which caused damaged to trachea, esophagus, spinal cord, fracture of cervical vertebrae led to coma and ultimately death. Such type of injury was sufficient to cause death in the ordinary course of nature. Injuries were ante-mortem in nature and were caused by fire arms. The probable time between the death and injuries was within week and between death and post mortem was six hours. Exh.PH is the post mortem report 'which is in my hand and bears my signatures. Exh.PH/1 and Exh.PH/2 are the diagrams which were also prepared and signed by me. Exh.Pl is the inquest report which also bears my signatures. After the post mortem examination I handed over the dead body along with post-mortem report and last worn clothes of the deceased to Zahid Iqbal 1678-C.
' According to the inquest report the Police observed only one injury situated in front of the neck. I was not negligent as trachea, esophagus, upper part of the trachea, anterior neck blood vessels around the trachea were damaged. I am not certain about whether the patient in injured condition was able to speak or not because he was in coma. It is correct to suggest that I was negligent in conducting the post mortem examination."
20. Dr. Ch. Zafar Ali P.W.7 stated in cross-examination that he was not certain whether the patient in injured condition was able to speak or not because he was in 'Coma'. Doctor P.W.7 stated in cross- examination that trachea, esophagi, upper part of trachea, anterior neck blood vessels around the trachea were damaged. In view of the statement of P.W.7 it was not possible that Muhammad Anwar deceased could speak and was in a position to make a statement on 5-3-2009. It is my confirmed view that statement of Muhammad Anwar was a concocted story maneuvered by the prosecution to strengthen its case, as in view of the neck injury of deceased who could not speak.
Further perusal of Exh.PE (complaint), which shows that there was signature of Muhammad Anwar deceased as well as thumb-impression. Again it creates doubt that why Anwar deceased then injured signed the document Exh.PE and put his thumb-impression too in normal circumstances it is not done by the police that signature and thumb-impression both are obtained on a complaint.
It is held in case titled "Tahir Khan v. The State" 2011 SCMR 646 as under:-- "mere dying declaration shrouded by mystery and fraught with so many infirmities is not enough to convict a person. Dying declaration is weaker type of evidence which needs corroboration when fully corroborated by other reliable evidence"
' It is held in case titled "Farman Ahmed v. Muhammad Anayat" 2007 SCMR 1825 as under:-- "dying declaration like statement of interested witness would require close scrutiny and corroboration"
' It is held in case titled "Muhammad Ameen v. The State" PLD 2003 Lahore 270 as under:- "Great caution is required before relying on a dying declaration which is a week piece of evidence as its maker is not subjected to cross-examination"
21. It is the basic duty of the D prosecution to stand on its own evidence and prove the case against the accused beyond any shadow of doubt. It is held in case titled "Muhammad Shah v. The State"
2010 SCMR 1009 as under:-- "when two interpretations of evidence are possible, one favouring the accused and the other favouring the prosecution, then the one favourable to the accused is required to be taken into consideration"
22. From the facts and circumstances narrated above, I am persuaded to hold that prosecution has badly failed to bring home guilt of the appellants to the hilt and the learned trial Court was not justified in convicting them while basing upon such untrustworthy/uncorroborated evidence deposed by interested witnesses, which even otherwise is weakest type of evidence especially unreliable story.Deposed by PWs. I am of the view that prosecution had badly failed to bring on record an iota of confidence-inspiring evidence against the appellants 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. Moreover, it is golden principle of law that the courts ought to let off 100 guilty but should not convict one innocent person. Resultantly salutary principle of benefit of doubt is extended in favour of the appellant and the instant criminal appeal is accepted and the conviction and sentences recorded by the learned trial Court vide judgment dated 10-4-2013 is set aside as a consequence whereof, the appellant is acquitted of the charge in case F.I.R. No,111/2009 under section 302, P.P.C. Police Station, Baghdad ul Jadeed, District Bahawalpur and are directed to be released forthwith if not required in any other case.