Imran Latif Butt, appellant along with Muhammad Idrees, Mushtaq Akhtar Butt alias Kale and Muhammad Ali co-accused was tried by the learned Addl. Sessions Judge, Rawalpindi in case F.I.R.
No, 188 dated 7.4.2011 under Sections 302/324/449/147/148, P.P.C. Registered at Police Station Gunj Mandi, Rawalpindi. The learned trial Court vide judgment dated 31.10.2013 convicted the appellant under, Section 302/147/148, P.P.C. And sentenced him to suffer imprisonment for life. He was also directed to pay Rs,2,00,000/- as compensation to the legal heirs of the deceased or to undergo six months R.I. He was further convicted under Section 449, P.P.C. And sentenced to suffer 10 years R.I.
With a fine of Rs,50,000/- and in default of payment of fine to further undergo three months R.I. The appellant was further convicted under Section 324, P.P.C. And sentenced to suffer imprisonment for 10 years and a fine of Rs,50,000/- and in default thereof three months R.I. Benefit of the provisions of Section 382-B, Cr.P.C. Was, however, extended to the appellant. All the sentences were directed to run concurrently. His co-accused were, however, acquitted. The above said conviction and sentence was not accepted by the appellant, so the same was challenged by filing instant appeal.
2. Better realization of this case can take place in the backdrop of the facts that Muhammad Asif Nazir Butt (PW.8) got lodged an F.I.R. (Ex.PB/1) with the assertion that his younger sister, namely, Mst.
Saima Nazir was married to Rizwan Butt (since P.O.) but there was dispute between the spouses for which the complainant party had filed a suit which was decided in favour of his sister on 7.4.2011. It was alleged that on the said date at 7.00 p.m. The complainant party was present in the house when. Aamir Butt (P.0), Rizwan Butt (P.O.), Imran Butt (appellant) sons of Latif Butt along with their uncle Kala. And Azhar all armed with pistols .30 bore and Idrees and Ali came to their house and raised lalkara that they will teach a lesson for winning the case. The accused Aamir Butt, Rizwan Butt and Imran Butt resorted to firing. Rizwan Butt (P.O.) made straight fire upon father of the , complainant, namely, Nazeer Butt hitting at his chin. The complainant tried to stop him upon which Aamir Butt (P.O.) fired shots hitting on his (complainant's) leg and arm. It was further alleged that younger sister of the complainant, namely, Mst, Sumaira Bibi came forward and Imran Butt/appellant made straight fire upon her which hit on her neck. On hue and cry raised by the complainant party the accused persons along with their companions while waiving the weapons in the air fled away, All the three injured were taken' to the hospital but father of the complainant succumbed to the injuries on the way.
3. On receiving information about the occurrence Imran Abbas, Sub-Inspector (PW.13) reached D.H.Q. Hospital, Rawalpindi and recorded statement (Ex.PB) of the complainant and sent the same to the Police Station for registration of F.I.R. On the basis of which formal F.I.R. (Ex.PB/1) was registered. The Sub-Inspector also prepared injury statements of the injured P.Ws. And the deceased and inquest report of the deceased and applied for post-mortem of dead body of Nazeer Butt. After recording statements of the witnesses under Section 161, Cr.P.C. He reached at the place of occurrence and conducted formal investigation. He collected blood through cotton from the place where Nazir Butt deceased was fired at and sealed the same into parcel. He found two marks of bullets on the main gate of the house, but could not find any crime empty at/around the spot during spot inspection. He prepared rough site-plan of the place of occurrence. He arrested Imran Butt appellant and ldrees co-accused on 28.4.2011. During interrogation Imran Latif Butt, appellant made disclosure and then led to the recovery of .30 bore pistol (P.4) which was taken into possession by the investigator vide memo. (Ex. PR). The investigator also arrested accused Mushtaq on 17.5.2011. After investigation the appellant along with others was found involved in the occurrence and was challaned to Court to face trial.
4. At the commencement of trial, charge was framed against the arrested accused persons i,e, the appellant, Muhammad Idrees, Mushtaq Akhtar and Muhammad Ali. They did not plead guilty and claimed trial. In order to prove the charge, the prosecution produced as many as 15 P.Ws. Out of which Muhammad Asif Nazeer Butt, complainant and Mst. Sumaira Nazir appeared as PWs. 8 and 9 to provide ocular account of the occurrence. Dr. Muhammad Qasim, Dr. Muhammad Ashraf and Dr. Tallat Mahmooda PWs. 6, 7 and 11 provided medical evidence. Imran Abbas and Fazal Akber, Sub- Inspectors proved their investigation. Rest of the witnesses were formal in nature.
5. At close of the prosecution case, the accused were examined under Section 342, Cr.P.C. They denied and dismissed each piece of prosecution evidence and attributed their involvement due to enmity. To a question as to why this case against you, Imran Latif Bute, appellant replied as under: "Admittedly the complainant and his family have enmity with other persons. Yasir Butt, the brother of complainant was involved in abduction of married lady, further the complainant party had altercation with unknown persons on numerous occasions. The alleged occurrence took place somewhere else and committed by some unknown persons but the complainant knitted this false story in order to gratify his hatred and animosity against my brother and other family members.
The family of the complainant was nourishing grudge against my brother since long. The complainant has thrown wider net by implicating almost all members of my family. I am victimized being brother of Rizwan Butt. I neither played any role in the family dispute of my brother Rizwan Butt nor have any nexus whatsoever, with the alleged occurrence. "
6. At the conclusion of trial, the learned trial Court convicted the appellant and acquitted his co- accused as mentioned above.
7. Learned counsel for the appellant submits that the impugned conviction and sentence is against the law and facts; that no independent witness was produced at trial; that the alleged eyewitnesses are closely related inter se and are admittedly inimical towards the appellant and his co-accused; that no injury on the body of the deceased was attributed to the appellant; that there are material contradictions between the statements of the eye-witnesses inter seas also with the medical evidence; that Mst. Saima was bone of contention for this occurrence but she has not been produced as such motive part of the occurrence is not proved; that the complainant party had enmity with other people also and possibility of attack by someone else cannot be ruled out; that injury on the person of Mst. Sumaira was attributed to the appellant but the lady doctor who medically examined Mst. Sumaira did not state in clear words whether the injury was of firearm weapon or by blunt means; that the investigator during his first spot inspection did not find any crime empty at the spot and as such no fire arm empty was collected by the investigator from the spot; that the pistol allegedly recovered from possession of the appellant was never sent to the forensic science laboratory as to whether the same was in working condition or not and in absence of recovery of any crime empty the same cannot be connected with the commission of crime; that the house/place of occurrence was a thickly populated area but no independent witness from the vicinity has been produced at trial; that there are number of improvements in the statements of the witnesses at trial but the learned trial Court did not properly appreciate the same and has convicted and sentenced the appellant on the basis of conjectures and surmises and as such the impugned judgment is liable to be set aside and the appellant merits to the acquitted.
8. On the other hand learned Law Officer assisted by learned counsel for the complainant have forcefully defended the impugned conviction and sentence on the ground that the occurrence took place at 7.00 p.m. In which father of the complainant was murdered whereashe along with his sister were seriously wounded and as such the first priority of the complainant party was to save the life of injured persons which they did and immediately shifted them to the hospital' where on receiving information of the occurrence the police arrived and recorded statement (Ex.PB) of the injured complainant on the basis of which (Ex.PB/1) was registered within quarter past two hours i,e, 9.15 p.m. And as such there was no chance of deliberations and consultations and the F.I.R. Was promptly lodged; that the occurrence took place at evening time in the month of April when at 7.00 p.m. Not so much darkness prevails to make it impossible for a person to, recognize someone. Even otherwise the occurrence took place inside the house where light was available and further that the appellant party and the complainant party were previously known to each other rather they were close relatives as such there was no question of mistaken identity; that the occurrence took place in the house and both the injured eye-witnesses were residents of the same house along with the deceased as such their presence at the place of occurrence was more, than natural; that it was alleged in the FIR. That the appellant was armed with .30 bore pistol. He was arrested and .30 pistol was recovered on his pointation which is very strong circumstance to connect him with the commission of crime; that family suit filed by the complainant party against the appellant party was decided in favour of the complainant party for which they have nourished grudge and thus the motive part of the occurrence was also proved and that it was a fool proof case established against the appellant, as such he was rightly convicted and sentenced by the learned trial Court and instant appeal merits to be dismissed.
9. I have hoard learned counsel for the parties and have also gone through the record with their assistance.
10. It was prosecution case through Muhammad Asif Butt, complainant/PW.8 in the F.I.R. And at trial supported by Mst Sumaira injured Witness/PW.9 that on the fateful day at 7.00 p.m. They along with other family members were present at the house when the appellant along with other co-accused and the P.Oe. Forcibly entered into their house and resorted to firing as a result of which their father Nasty Butt died whereas the complainant and Mst/ Sumaira got serious injuries who were taken to the hospital where the police reached and recorded their statements on the basis of which FIR, pas registered at the police station.
11. Imran Abbas, Sub-Inspector appeared at trial as PW. 13 and reported that on receipt of information of the occurrence he along with other police officials reached the hospital where Muhammad Asif complainant and Mat, Sumaira Bibi PWs.8 & 9 were under treatment and after obtaining necessary permission from the doctor he recorded statements of these two injured Witnesses and sent the statement of Muhammad Asif (Ex,PB) to the Police. Station for registration of formal F.LR. He further deposed that after conducting necessary investigation in the hospital he reached the place of occurrence. He took into possession blood through cotton from the place of occurrence. He also prepared rough site-plan (Ex,PQ). He also conducted other formal investigation. However, the investigator did not find any crime empty at/around the spot as he did not mention the same. The investigator conducted raids at the houses of accused but they could not be arrested because the houses of the accused were, lacked.
12. Dr. Muhammad Qasim Khan, Dr. Muhammad Ashraf and Dr. Talat Mehmooda who had respectively conducted post-mortem on the body of Nazir Butt and medically examined Muhammad Asif Butt and Mst. Sumaira appeared at trial as PWs. 6, 7 and 11. Dr. Talat Mehmooda PW. 11 deposed that she had medically examined Mst. Sumaira and found a lacerated wound 8 cm x 0.75 cm linear on posterior aspect of neck on right side with blackening. She explained that lacerated wound can be occurred with the blunt weapon. The doctor, however, refuted that if some hot iron etc. Is moved on the neck -then the blackening can be emerged. She stated the time elapsed between injury and medico legal examination to be between four to six hours. Statement of Mst. Sumaira coupled with the fact that she was injured with fire-arm object leads to infer that she was present at the spot and was injured in the occurrence because the time of injury suffered by the P.W. And her presence in the hospital before the time of arrival of police indicates that this P.W. Was also injured during the occurrence in which the complainant was also injured and their father was murdered. However, the doctor who medically examined Mat.Sumaira observed blackening around the injury suffered by this P.W. During cross-examination the doctor explained that blackening around the wound can occur only from a distance of six feet. The site-plan prepared by the investigator on his first arrival at the place of occurrence (Ex. PQ) depicts that Mat.
Sumaira was standing at Point No, 8 which is in front of kitchen and Point No, 7 is the place in the Dewrri where Imran Latif Butt, appellant was standing from where he statedly fired at Mat. Sumaira landing at her neck. The scaled site-plan was later on prepared by Aamer Shehzad, draftsman (PW.12) on the direction of the P.Ws, and according to the scaled site-plan of the draftsman inter se distance between points No, 8 and 7 is five karams. At trial the draftsman clarified this distance to be 13 feet. The question arises as to whether blackening around the wound can occur by a fire made from such a distance. Answer in the light, of Medical Jurisprudence is in negative. It may also be mentioned that even Dr. Muhammad Ashraf (PW.6) who had medically examined Muhammad Asif complainant also found blackening around Injuries No, 1 and 3 i,e, entry wounds on thigh and forearm. This blackening around the injuries of these two injured P.Ws. Has created a serious dent in the veracity of statements of these PWs. And indicates that what these PWs. Have stated is not sacrosanct and is not whole truth. If this be so, then how Mst. Sumaira got injured in absence of any suggestion from the doctor that the injury caused to this P.W. Could be self suffered?
13. In the light of Modi's Medical Jurisprudence and Toxicology (21st Edition) and the authoritative pronouncements by Hon'ble Supreme Court of Pakistan, blackening can occur only when victim receives injury: from a distance of 3 to 5 feet depending upon the kind of weapon. Steering thoughts in this regard can be taken from Muhammad Zaman v. The State and others (2014 SCM R 749), Barkat AU v. Muhammad Asif and others (2007 SCM R 1812) and Amin Ali and another v.The State (2011 SCM R 323). So it is held that there is clear conflict between the ocular account and medical evidence.
While 'resolving this query, one must keep in mind portion of cross-examination to the complainant where he gave complete location of the house by explaining that it was a triple storey house. On ground floor the complainant's family lived, first floor was occupied by sister of the owner whereas on the second floor a tenant by the name of Arshad was living with his family; that the house was surrounded by two streets; a blind alley in the East and Street No, 51 in the South and that his house had two doors, one main, gate opened in Street No, 51 whereas the other in the blind alley. He also explained that the complainant family used the main gate whereas inhabitants of the upper portions used way opening into blind alley. While giving inside description of the house, he explained that the house consist of two rooms, one Baithak, kitchen, bath room, Courtyard (Point No, 6 where Mst. Sumaira received injury) and dewrry (Point No, 7 wherefrom Imran Butt, appellant while standing made fire shot at Mst. Sumaira Bibi). He conceded that no door of bhaithak/drawing room opened in the street; that dewrry of the house was lower level than the Courtyard and that there was a step to go from dewrry to Courtyard. He admitted that there was an open way in the house between drawing room and the kitchen but maintained that the said way was under the use of persons who were living in upper positions of the house. The complainant was candid enough to disclose that there was a piece of cloth fixed for the purposes of observing parda in case of arrival of male guests in the drawing room as there was no door of drawing room towards the street. He explained that length of curtain was just two feet high going upward till ceiling of the dewrry and further that the kind of curtain was thick so no one was in a position to see across the curtain. This shows that the house was divided by this curtain into two portions: one consisting of drawing room, dewrry and open way leading to blind alley and the other portion consisting Courtyard, kitchen and two rooms. This explanation of the complainant makes it more than clear and one can safely infer that because of this curtain/fixed thick cloth intervening points No, 6 and 7 there was no possibility of having seen Mst. Sumaira (at Point No, 6) by Imran Butt appellant while standing at Point No, 7 rather no one present in one portion of the house could see beyond the curtain i,e, to the other portion of the house. This inference of mine gets support from the fact that the PWs. Present in the portion of house comprising Courtyard and rooms/kitchen could not see that while leaving the spot the culprit(s) also fired shots at the main gate and that is why the complainant or Mst.
Sumaira did not mention this fact of firing at the gate to the police while making statement in the hospital and it was only the investigator who noticed firing marks at main gate during his first spot inspection. However, at later stage the P.Ws. Became conscious of this fact and improved their version at trial by categorically stating that the culprits made fires at main gate of the house while leaving the spot. If one microscopically examines the site-plan keeping in mind the distance between the culprit and Mst. Sumaira injured then it would reveal that co-accused of the appellant who is/are still P.Os. Was/were more nearer to the injured than the appellant rather he/they was/were within such range wherefrom fire made could cause blackening around the wound.
Needless to mention that the P.Os. Were present on western side of Mst. Sumaira when she came out of kitchen whereas Imran Butt was allegedly on southern side and she received fire-arm injury on posterior aspect of neck on right side which cannot be caused by the culprit while standing on southern side whereas it could be more conveniently caused by a person standing in front of the injured which comes to western side.
14. Having thus come to the conclusion that what the injured P.Ws. Had deposed was not the whole truth and was negated by the circumstances discussed above, I have noted that apart from the above injured P.Ws. Their brother Saqib Butt had also entered the witness-box but one should bear in mind that this P.W. Was not only brother of the injured PWs rather was son of the deceased and also brother of Mst. Saima who was bone of contention between the parties and he was thus inimical towards the appellant being interested person. No other independent witness of the locality was produced at trial in spite of the fact that house of the complainant party was surrounded by thickly populated area.
15.Prima facie it appeared to be a simple case of prosecution based on ocular evidence coupled with medical evidence proved by the recovery of pistol from the appellant but through above microscopic examination of the evidence coupled with the circumstances noticed and discussed above on the touchstone of universally recognized principle 'that man may tell a lie but circumstances cannot, instant case has been proved to be an example of widening the net to involve maximum number of accused family.
16.Motive set up by the prosecution for the occurrence was that Mst. Saima, sister of Asif Butt, complainant and daughter of the deceased was married with Rizwan Butt P.O. (real brother of the appellant). However, relations between the spouses were strained and she had filed suit for maintenance against said Rizwan which was decreed in her favour. Neither Mst. Saima was produced at trial nor any decision of Family Court was produced in. evidence. The motive indicated above is related with Rizwan Butt co-accused/P.O. and not with the appellant. It is important to mention here that PWs. 8 and 10 admitted in their evidence that the appellant was not resident of the house where his other brothers/accused persons/P.Os. used to live rather he was residing in a separate house. Nothing could be brought on record to suggest that the appellant was hotly pursuing the family matter of his brother. It has also come on record in shape of evident collected by the investigation that the appellant was not even concerned with regard to the family dispute between his brother Rizwan and his in-Jaws and in absence of this fact it can hardly be held that the appellant shared common intention for commission of offence or that he even visited place of occurrence with common object. From the discussions thus made, it becomes as clear as day light that motive as given by the prosecution is not proved and is disbelieved. This case seems to be an attempt of throwing wider net to implicate whole of the family in this case.
17.No doubt a pistol was statedly recovered on pointation of the appellant but, as has been noticed above, no crime empty was recovered by the investigator during spot inspection. The pistol so recovered from the possession of the appellant was never sent to Forensic Science Laboratory to determine whether the same was in working condition or not or any shot has been fired with it.
Thus mere recovery of pistol in absence of crime empty does not connect the appellant with the commission of the crime and the same is inconsequential. In this regard guidance can be taken from the cases of Muhammad Rafique v. The State (2014 SCM R 1698) and Dam v. The State (1988 SCM R 1532).
18.Analyzing from whatever angle, circumstances of the case have established that the appellant had not committed the offence and that even his participation in the occurrence is not proved beyond shadow of doubt. Needless to mention that benefit of doubt always goes to the accused.
No doubt an unfortunate incident had taken place in which one person lost his life and two persons were injured but from scanning the oral as well as documentary evidence available on record, I am of the firm view that the incident did not take place in the manner and mode as narrated by the prosecution/The prosecution made different deliberate and dishonest improvements in this case only to strengthen its case and to implicate all the brothers of Rizwan Butt, co-accused in this case.
The Hon'ble Supreme Court while dealing with the case of dishonest improvements held in Akhtar Ali v. The State (2008 SCM R 6) as under: "When a witness improves his version to strengthen the prosecution case, his improved statement subsequently made cannot be relied upon as the witness has improved his statement. dishonestly, therefore, his credibility becomes doubtful on the well-known principle of criminal jurisprudence that improvements once found deliberate and dishonest cast serious doubt on the veracity of such witness."
The rule of benefit of doubt is essentially a rule of prudence and universally recognized rule. This rule while dispensing justice cannot be ignored. The rule is based on a recognized maxim "It is better to acquit ten guilty persons than to convict an innocent person". This rule occupies a pivotal place in Islamic law and enforced strictly in the light of the saying of our Holy Prophet (Peace Be Upon Him) that "Mistake of Qazi in releasing a criminal is better than his mistake in punishing an innocent". Now it is too settled to admit any debate that conviction must be based on unimpeachable evidence and even a single doubt arising in the prosecution case/evidence must be resolved in favour of the accused. Reliance in this regard is placed on the case of Muhammad Khan and another v. The State (1999 SCM R 1220) and Muhammad Akram v. The State (2009 SCM R 230).
19.In this view of the matter, I find that the prosecution has failed to prove its case against the appellant beyond doubts. Resultantly this appeal is accepted, impugned conviction and sentences are set aside and the appellant is acquitted of the charge giving him benefit of doubt. He is in jail and shall be released forthwith if not required to be detained in any other case.