' ABDUL SAMI KHAN, J.---Through Criminal Appeal No,303 of 2007 under section 410, Cr.P.C. Arshad Hussain alias Arshi has challenged the vires of judgment dated 26-7-2007 handed down by the learned Addition Sessions Judge, Dera Ghazi Khan, wherein the appellant was convicted under section 302(b), P.P.C. For committing the Qalt-i-Amd of deceased Ghulam Fareed and was sentenced to life imprisonment. He was also ordered to pay compensation of Rs,30,000 to the legal heirs of the deceased under section 544-A, Cr.P.C. And in case of default of payment thereof he shall further undergo simple imprisonment for three months. The benefit of section 382-B, Cr.P.C. Is extended in favour of the appellant. On the other hand, the complainant has filed Criminal Revision No,198 of 2008 for enhancement of sentence of the convict/appellant Arshad Hussain alias Arshi from life imprisonment to capital sentence of death.
2. Precisely, the facts of the case as unfolded from the F.I.R. Exh.PC/1 which was recorded on the statement (Exh.PC) of Peer Bakhsh complainant (P.W.8) are as under:- "that on evening of unfortunate day at about 04:30 p.m. Within the area of Pull "Ladan", he in company of Allah Diwaya and Allah Wassaya was taking sugarcane juice from the shop of Ghulam Shabbir. They saw that Shabbir Hussain son of Karam Hussain came on motorcycle, accused Arshad Hussain armed with Kalashnikov and Munawar Hussain accused armed with pistol .30 bore were sitting on that motorcycle as pillion. On the other motorcycle accused Murid Hussain armed with pistol .30 bore along with Hussain Bakhsh armed with "sota" came and they all stood at Pull "Laddan". After a while Ghulam Farid (deceased) riding motorcycle Honda, 125/CC came from southern side and went onto bridge for going to western side, when all of a sudden Hussain Bakhsh and Murid Hussain blocked his motorcycle and shouted that he would not be spared. In the meantime, accused Munawar Hussain Shah asked Arshad Hussain to teach Ghulam Farid a lesson for maintaining enmity with them. In sight of complainant and his companions, Arshad Hussain made firing upon Ghulam Farid with his Kalashnikov, who ensanguined and fell down on the ground. He (complainant) and his companions tried to capture the accused, but they threatened them while pointing their firearms that if they will come near, they will also be roasted with fires. After the occurrence, all the accused fled away from the scene.
' Motive behind the occurrence as stated by the complainant is that on 20-8-2005 a quarrel took place between Arshad Hussain and some young boys from complainant party regarding which case was registered against Arshad etc., which was tried to be compounded by the father of Arshad, but could not succeed and due to that grudge this occurrence has been committed."
3. After registration of the case, investigation was conducted by Imtiaz Ahmad S.I. (P.W.10) and after completion of the same, challan was submitted against appellant and his accomplice i.e, Syed Ghulam Shabbir and Murid Hussain. Charge was framed on 18-5-2006 under sections 302, 392, 148, 149, 411, P.P.C. To which they pleaded not guilty and claimed trial.
4. To substantiate its version at the trial, the prosecution produced as many as eleven witnesses.
Ocular account was furnished by Peer Bakhsh complainant (P.W.8) and Allah Dewaya (P.W.9). They have fully supported the prosecution version. Imtiaz Ahmad S.I. (P.W.10) is the Investigation Officer.
He had testified about the investigation conducted by him.
5. Dr.Khalid Naveed, Medical Officer, DHQ Hospital, Dera Ghazi Khan (P.W.7) on 14-9-2005 conducted postmortem examination on the dead body of Ghulam Fareed son of Muhammad Ramzan and found the following injuries:- "Wound of entry of size .5cm x .5cm round shape was present on right lumber region. The wound was deep going into the abdomen and forming wound of exit on left lumber region. The size of wound was 3cm x 2.5cm fatty tissue with mesentery was protruding from abdomen.
' Wound of entry of size .5cm x .5 cm round shape situated below injury No, 1 on right anterior lateral surface of lumber region and going deep interiorly and forming wound of exit-B was situated on posterior surface of left buttock. Fracturing the pelvic bone of size 1.6 cm x .8 cm. "
6. According to the doctor cause of death is due to massive haemorrhage and shock coupled with fracture of pelvic bone as a result of injuries Nos.l and 2, which was sufficient in ordinary course of nature to cause death. All the injuries were ante-mortem and were caused by firearm weapon.
Probable time that elapsed between injury and death was 15 to 30 minutes and between death and post mortem was two to six hours. The post mortem report is Exh.PG.
7. After placing on record reports of Chemical Examiner Exh.PM and report of Serologist Exh.PN the prosecution closed its evidence.
8. The appellant in his statement recorded under section 342, Cr.P.C. Professed his innocence and pleaded false implication in the case. In reply to question why this case against you and why the P.
Ws. Deposed against you, he stated as under:- "Due to suspicion and enmity, 1 have been falsely involved in this case as the witnesses were not present at the place of occurrence and the real witnesses have been given up by the complainant party."
' He neither opted to record his statement under section 340(2), Cr.P.C. In disproof of allegation levelled against him by the prosecution nor produced any witness in his defence.
9. At the end of the trial, after thrashing the entire evidence and evaluating the arguments advanced by the learned counsel for the parties in support of their respective versions, learned trial Court proceeded to convict and sentenced the appellant as mentioned in Paragraph No,1 of this judgment.
10. Learned counsel for the appellant contends that the eye-witness account furnished in this case by the prosecution has been disbelieved by the learned trial Court and it has recorded the conviction of the appellant solely on the basis of investigation conducted in this case, which is not warranted by law. The opinion of the police is inadmissible, therefore, the conviction of the appellant could not be maintained on police investigation. Learned counsel for appellant strenuously contended that the prosecution has failed to prove its case beyond any shadow of doubt and the evidence so produced is not confidence-inspiring and is not worthy of credible reliance. He argued that the appellant is absolutely innocent in this case and the evidence produced by the prosecution suffers from material irregularity. There is contradiction between the F.I.R. And the statements of the eye-witnesses recorded before the trial Court. He also contended that at the time of occurrence the P.Ws. Were not present at the place of occurrence. They had not seen the occurrence and the alleged eyewitnesses are related inter se, in this way the eyewitnesses are not only interested but also related and chance witnesses whereas no independent person has supported the prosecution case especially the eye-witness account. He argued that the motive alleged by the prosecution has not been proved so the prosecution must suffer for it. It was further argued that the recovery was planted upon the appellant in order to strengthen the prosecution case. He lastly contended that the prosecution has miserably failed to prove the charge against the appellant, so he deserves clean acquittal. The learned counsel for the appellant has relied upon 1991 SCM R 643.
11. On the other hand, learned Deputy Prosecutor General assisted by learned counsel for the complainant opposed the submissions made by learned counsel for the appellant and submitted that the matter was reported to the police without any element of deliberation and consultation.
The appellant is the main accused charged directly in the promptly lodged F.I.R. By name and with specific role and the ocular account is duly corroborated by the medical evidence. The occurrence took place in broad daylight, parties were known to each other and there was absolutely no chance of mistaken identity of the accused. Apart from confidence inspiring evidence of the eye- witnesss, there is strong corroborative evidence on the file of this case in the shape of the weapon of offence recovered on the pointing out of appellant, the reports of Chemical Examiner and Serologist are available in this case .Which provide sufficient support to the ocular account. Peer Bakhsh complainant (P.W.8) and Allah Dewaya (P.W.9) were present at the time of occurrence and in spite of lengthy cross-examination, the defence had failed to demolish/dislodge their presence at the spot. It was submitted that the prosecution case stands proved from all corners against the appellant, the ocular account is fully corroborated by the medical evidence. The motive was previous enmity between the deceased and the appellant party and an altercation took place a couple of days before the occurrence. Furthermore, the appellant has failed to bring on record anything on the basis of which it can be construed that eye-witnesses have made false statements against the appellant or that they have become false witnesses on account of ulterior motive. He lastly submits that as there is no mitigating circumstance in favour of the appellant, so the learned trial Court would have sentenced him to the capital punishment of dealt.
12. I have heard the learned counsel for the appellant, the Prosecutor General, the learned counsel for the complainant and have also perused the record of this case with great care and caution.
The learned, counsel for the petitioner has laid great emphasis on the point that as the learned trial court has disbelieved the eyewitness account, therefore, the conviction cannot be sustained on the basis of the conclusion arrived at by the Investigating Officer because there is no cavil with the proposition that ipse dixit of police is inadmissible in evidence. He has taken it a pivotal point and has tried to convince the Court for acquittal of the appellant on this sole ground. I have, however, remained unable to appreciate this submission of the learned counsel for the appellant and have decided to apply my own independent mind after evaluating a fair assessment of the evidence available in this case.
13. The ocular account of this case had been furnished by Pir Bakhsh complainant (P.W.8) and Allah Diwaya (P.W.9). Pir Bakhsh complainant (P.W.8) has admitted in his cross-examination that he lived one mile away from the place of occurrence whereas Allah Wasaya (P.W.9) lived 2/3 kilometers away from his house. Both of them have stated the reason of heir presence at the place of occurrence at relevant time that they had been taking sugar-cane juice from a shop but admittedly neither the juice seller had been produced before the learned trial court in support of their stance for adducing evidence nor the Investigating Officer had associated him with the investigation of this case or got recorded his statement under section 161, Cr.P.C. To support the reason for presence of eye-witnesses at the place of occurrence. Although Imtiaz Ahmad, S.I.
Investigating Officer (P.W.10) had stated in his cross-examination that he had verified the occurrence from the shop-keepers running shops around the place of occurrence yet there is nothing on record to show that he had got recorded statement of any such shop-keeper under section 161, Cr.P.C. So in the circumstances mentioned above both the eye-witnesses cannot be called as natural witnesses rather both of them are chance witnesses and their presence at the place of occurrence at relevant time is not substantiated or supported through any independent source. More over both of them are related and interested witnesses because Pir Bakhsh complainant (P.W.8) had admitted in his cross-examination that the deceased Ghulam Farid was his maternal nephew whereas, Allah Diwaya (P.W.9) is his paternal nephew. Both the eye-witnesses are not only related inter se but both of them are also related to the deceased. Thus, their credibility, reliability and truthfulness are not above-board to put a worthy reliance upon the same.
Their presence at the spot is doubtful in the circumstances mentioned above. They have been rightly disbelieved by the learned trial court and this Court has also found no occasion to believe them. Even otherwise on the same set of evidence the learned trial court has acquitted Ghulam Shabbir and Murid Hussain co-accused, how it can be possible that on the basis of same set of evidence the appellant could be convicted by the learned trial court. The learned counsel for the complainant has brought to the notice of this Court that appeal against acquittal of Ghulam Shabbir and Murid Hussain had already been dismissed by this Court.
14. The medical evidence has been provided by Dr. Khalid Naveed (P.W.7), Medical Officer, District Headquarter Hospital Dera Ghazi Khan who while appearing before the learned trial court had stated that the deceased had sustained two injuries on his abdomen. These injuries were ante- mortem in nature because of firearm, affecting the vital organ of abdomen associated with hemorrhage and shock with plvic bone fracture and the same were found by the doctor to be sufficient to cause death of the deceased. Dr. Khalid Naveed (P.W.7) only stated about the nature of injuries, their location and the weapon used in the occurrence. Law is quite settled on the point that medical evidence is only used for confirmation of ocular evidence to seat of injury, time of occurrence and weapon of offence, etc. But medical evidence itself does not constitute any corroboration qua the accused person for providing his culpability. Reliance in this regard can be placed on the case of Muhammad Sharif and another v. The State (1997 SCM R 866). Thus, the medical evidence in this case cannot bring the guilt of the appellant to the hilt especially in the circumstances when the ocular account has already been disbelieved by this Court.
15. From an overwhelming analysis of evidence available in this case I am inclined to observe that the appellant was convicted by the learned trial court on the basis of investigation and recovery of motorcycle effected from him. I have given my anxious considerations upon the evidence produced by the prosecution qua recovery effected in this case. The learned counsel for the complainant has vociferously argued that motorcycle of the deceased was taken into possession on pointing out of the appellant which connect him with the commission of occurrence as according to the F.I.R. The appellant after committing offence fled away from the scene of the crime on motorcycle of the deceased. Admittedly the motorcycle of the deceased was recovered after five months of the alleged occurrence. However, it is not believable that an accused who is involved in a heinous offence which carries punishment of death would keep motorcycle with him for such a long period so as to get it recovered as supportive piece of evidence against him. A bare perusal of recovery memo Exh.PE shows that the motorcycle has been taken into possession by the Investigating Officer from the room of tenant of his maternal uncle as well as father namely Khan Muhammad Laghari (tenant). Contrary to that according to the statement of Investigating Officer (P.W.10) the motorcycle was recovered from a room owned by the father of the appellant namely Ghulam Akbar Shah; So in view of the confliction/contradiction between the statement of P.W.10 and recovery memo Exh.PE the recovery of motorcycle cannot be believed vis-a-vis provide support to the ocular account as required in a murder case. Similarly, no empty of Kalashnikov- has been collected by the Investigating Officer from the place of occurrence and this is the reason that no report of Forensic Science Laboratory in this regard is available in this case. Thus, the alleged recovery of Kalashnikov along with eight live bullets is of no avail to the prosecution.
16. It has also come on record that the deceased was also involved in criminal cases and was carrying enmity with people in vicinity. The motive set up by the prosecution is an existed enmity between the parties due to political rivalry but a perusal of evidence in this regard shows that the prosecution could not prove motive in this case.
17. The upshot of the discussion made above reaches to an irresistible conclusion that the prosecution has miserably failed to prove charge against the appellant without any reasonable shadow of doubt. The learned trial court had convicted the appellant only, on the basis of opinion of the Investigating Officer which is inadmissible in evidence. It has been held time and again by the Hon'ble Supreme Court of Pakistan that job of the Investigating Officer is only to collect evidence and he has got no authority to declare someone guilty or innocent rather sole prerogative in this regard lies with the courts of law. Reliance is placed on 2010 SCM R 1791 and PLD 2011 SC 350. This appeal is, therefore, allowed and the appellant is acquitted of the charge while extending benefit of doubt to him. The appellant is in jail, he shall be released forthwith if not required in any other criminal case.
18. In view of my discussion made above Criminal Revision No,198 of 2008 filed by Pir Bakhsh complainant for enhancing the sentence of life imprisonment of the appellant to death is dismissed.