SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Muhammad Mushtaq son of Nazir Ahmad, caste Joyia, resident of Muft Pura Tara Garh, Police Station, Ganda Singh Wala, Tehsil and District Kasur (appellant) along with Nazir Ahmad (since acquitted) was involved in case FIR No,197, dated 30-10- 2004, offence under sections 302, 34, P.P.C., registered with Police Station, Ganda Singhwala, Kasur.
However, being dissatisfied with the investigation carried out by the Investigating Officer, Muhammad Sarwar complainant (P.W.8) preferred private complaint titled as:- Muhammad Sarwar v. Muhammad Mushtaq, etc.". offence under sections 302, 34, P.P.C. During the course of trial, cursory statements of the prosecution witnesses were recorded by the learned trial Court and after recording the cursory statements and taking into consideration the other material available on the record, in terms of order dated 26-9-2005, the learned trial Court summoned the respondents of the aforesaid complaint to face charge. The learned trial Court framed charge against the respondents vide order dated 25-4-2006 and thereafter summoned the prosecution witnesses. After completion of prosecution evidence and recording of statements of the appellant in terms of section 342, Cr.P.C.
The learned trial court in terms of judgment dated 28-2-2007 convicted/sentenced the appellant as under:- Sr. #Name of the appellantConviction/sentence 1 Muhammad MushtaqUnder section 302(6)/34, P.P.C. Sentenced to imprisonment for life with direction to pay Rs, 100,000 as compensation to the legal heires of the deceased under section 544-A, Cr.P.C. In case of default in payment of the same, to further undergo six months'
S.I. Each.
Benefit of section 382-B, Cr.P.C. Was extended in favour of the accused/appellant.
2. Feeling aggrieved by the judgment of the learned trial Court, Muhammad Mushtaq (appellant) assailed his conviction and sentence by way of filing Criminal Appeal No,375 of 2007.
3. Prosecution story as contained in the crime report (Exh.PE/1) lodged on the complaint (Exh.PE) of Muhamad Sarwar, complainant (P.W.8) is that he is resident of Khai Hithar, Tehsil and District Kasur, and is a cultivator. The daughter of the complainant namely Sheeman Bibi was married with Musthaq Ahmad accused nine years ago and out of their wed-lock, three children were born out, out of them two children are elder whereas one female baby is only five days old. Sheeman Bibi is daughter-in-law of Nazir Ahmad. On 30-10-2004 at about 7-00/7-30 a.m. Both the accused persons committed murder of his daughter by causing hatchet and chhurra blows. On hearing the hue And cry of the deceased, besides ahl-e-deh, agriculturist Abdul Rehman son of Muhammad Ahmad, caste Rajput, resident of the deh, who had come to the poultry form in search of labour, Malik Abid Hussain son of Habib, caste Rajput, resident of the deh and Muhammad Ahmad son of khursheed, caste Rajput resident of the deh, also attracted at the spot and witnessed the occurrence of dying of the deceased. Thereafter, both the accused fled away from the spot while brandishing their weapons and raising lalkaras. The dead body was lying smeared with blood. The complainant stated that the accused persons had also attempted to commit the murder of the deceased earlier on many occasions. The accused persons are habitual and are involved in the business of committing theft of the wood.
4. On 30-10-2004, Sabir Ali Shah, S.I. (C.W.1) was present at Chowk Tara Garh on patrol duty. At about 8-45 a.m. Muhammad Sarwar, complainant (P.W.8) appeared before the Investigating Officer and presented an application (Exh.PE) duly thumb marked by him. After recording police karwai, the Investigating Officer sent the complaint (Exh.PE) to the police station for registration of formal FIR. On the basis of which formal FIR (Exh.PE/1) was lodged by Bashir,. ASI (P.W.4). The Investigating Officer went to the place of occurrence along with other police officials and complainant, prepared inquest report (Exh.C.W.1/1), injury statement (Exh.C.W.1/2), drafted application for postmortem examination upon the dead body of the deceased (Exh.C.W.1/3) and handed over the dead body along with police papers to Muhammad Alam and Maqsood Ali, constables, for escorting the same to the mortuary for postmortem examination. The Investigating Officer collected blood stained earth from the spot vide memo. (Exh. PC) attested by the P.Ws., inspected the spot and prepared rough site plan of the place of occurrence (Exh.C.W.1/4), recorded statements of the P.Ws. Under section 161, Cr.P.C. And started search for the accused. After postmortem examination, Muhammad Alam, constable produced copy of postmortem report along with relevant police papers and last worn clothes of the deceased i,e, kameez (P-3), shalwar (P-2) which the Investigating Officer took into possession vide memo. (Exh.PD) attested by the P.Ws.
On 4-11-2004, the Investigating Officer summoned Muhammad Nasrullah, draftsman (P.W.2) who on the pointation of the P.Ws. And directions of the Investigating Officer took rough notes from the place of occurrence and prepared scaled site plan (Exh.PB) and (Exh.PB/1) on 5-11-2004. The Investigating Officer handed over the case property to the moharrir of the police station for safe custody and onward transmission to the quarters concerned for analysis. Nazir Ahmad (accused) joined investigation; the Investigating Officer deferred his arrest and found him innocent during the course of investigation. On 10-11-2004, investigation of this case was entrusted to Bashir Ahmad, S.I.
(C.W.2). On 16-11-2004, the Investigating Officer arrested Mushtaq Ahmad (accused) in this case, obtained his physical remand from the learned Illaqa Magistrate and on 21-11-2004 after making disclosure, Mushtaq Ahmad (accused) got recovered wooden danda used for grinding chilly and salt (P-1) from the room of his residential house situated in village Tara Garh which the Investigating Officer took into possession vide memo. (Exh.PA). The Investigating Officer prepared rough site plan of the place of recovery (Exh.C.W.2/1) and recorded statements of the P.Ws. Under section 61, Cr.P.C.
5. During the course of investigation, the Investigating Officer found the appellant guilty and submitted report under section 173, Cr.P.C., to the court of competent jurisdiction, which was en- routed through learned Illaqa Magistrate as provided under section 190(2), Cr.P.C. The learned Additional Sessions Judge, Kasur in terms of order dated 25-4-2006, framed charge against the appellant. The appellant pleaded not guilty and claimed trial. Prosecution in order to substantiate its case produced as many as eleven (11) witnesses. However statements of Sabir Ali Shah, S.I. And Bashir Ahmad, S.I. Were recorded as (C.W.1) and (C.W.2) respectively.
6. Muhammad Sarwar (P.W.8) is the complainant of this case. The occular account in this case consists upon the statements of Abid Hussain (P.W.10) and Muhammad Ahmad (P.W.11).
Muhammad Nasrullah, draftsman (P.W.2) had prepared scaled site plan of the place of occurrence. Investigation of this case was initially carried out by Sabir Ali Shah, S.I. (C.W.1) and subsequently the same was entrusted to Bashir Ahmad, S.I. (C.W.2).
7. Lady Dr. Farzana Shaheen, (P.W.6) had conducted the postmortem examination upon the dead body of Mst. Sheeman Bibi (deceased) and found following injuries on her person:-
(1) A lacerated wound T-Shape size 9 x 4 c. m. On top and left side of head, 10 cm from left ear pinna. Under Line bone was damaged through the wound.
(2) Multiple contusions with swelling in an area 12 cm x 10 cm on back of left forearm.
(3) A contusion 4 x 1 cm right side forehead.
(4) A contusion 1 x 1/2 cm x 1 cm on left side forehead.
After conducting postmortem examination, the doctor arrived at the following opinion:- "Cause of death in this case was shock due to head injury i,e, Injury No, 1 which is sufficient to cause death in ordinary course of nature. All injuries were ante mortem and due to blunt heavy weapon. Time between injury and death within 15 minutes approximately. Between death and post mortem about 28-hours".
Statements of rest of the prosecution witnesses are formal in nature.
8. On 25-4-2006, the complainant gave up Muhammad Alam, 846/C, P.W., being unnecessary. On 25-11-2006, the complainant further gave up Abdur Rehman and Latif, P.Ws., being unnecessary. On 18-12-2006, the complainant further gave up Bashir Ahmad, S.I. And Sabir Ali Shah, S.I. P.Ws., being won over by the accused persons. On 17-2-2007, the complainant closed the prosecution evidence.
9. The appellant was examined under section 342, Cr.P.C.; wherein he opted not to appear under section 340(2), Cr.P.C., as witness of his own to disprove the allegations levelled against him, however opted to adduce defence evidence. In response to the question why this case is against him and why the P.Ws. Deposed against him, Mushtaq Ahmad (appellant) made the following deposition:- "It is a false case. In fact no such occurrence ever taken place as alleged by the prosecution. Mst.
Sheeman Bibi deceased died of due to fall of ceiling fan hence; there is no independent evidence available on record against me. The complainant is not eye witness of the occurrence whereas the remaining witnesses produced by the prosecution have previous enmity with me which has been established from the record so said witnesses namely. Muhammad Ahmad and Abid Hussain with the connivance of the complainant introduced a false story against the actual facts."
However, on 19-2-2007, the appellant got recorded his statement that he does not want to adduce defence evidence.
10. Learned trial Court after evaluating the evidence available on record in light of arguments advanced from both sides, found the prosecution version proved beyond shadow of reasonable doubt resulting into conviction of the appellant in the afore stated terms.
11. Learned counsel for the appellant while opening his arguments contended that the impugned judgment has been passed by the learned trial court in a slipshod manner without adverting to the facts of the case, which even otherwise is in sheer violation to the evidence available on the record.
It was contended that the appellant is husband of Mst. Sheeman Bibi (deceased). It was argued that there is delay of more than two hours in lodging the crime report for which no plausible explanation had been rendered by the prosecution. It was contended that the ocular account in this case had been advanced by the prosecution through Abid Hussain (P.W.10) and Muhammad Ahmad (P.W.11), but their statements cannot be given much credence as both of them are interested/inimical witnesses as Abid Hussain (P.W.10) himself whereas Abdul Rehman son of Muhammad Ahmad (P.W.11) was accused of a murder case in which Nazir Ahmad, father of the appellant (co-accused since acquitted) was a prosecution witness. It was argued that even both these prosecution witnesses are not residents of the said village, rather they hail from a distant place and their presence at the spot was per chance. Learned counsel went on arguing that though as per contents of the crime report the deceased was done to death by the appellant while causing hatchets/chhuras blows, but the doctor had observed that the injuries were result of blunt weapon and as such the ocular account is contradicted by medical evidence. It was next argued that recovery of danda had been planted by the Investigating Officer against the appellant but the same too do not advance the prosecution case as the alleged, occurrence was committed by the accused persons with hatchets/chhuras. Such circumstances, learned counsel argued lends support to the fact that the prosecution witnesses were not present at the spot and they had deposed against the appellant being interested/inimical witnesses. Learned counsel further argued that eye-witness of this case namely Abdur Reitman, was given up by the prosecution being unnecessary and if he had been produced before the learned trial court, he would have made statement adverse to the prosecution case. It was contended that Nazir Ahmad, co- accused, had been acquitted of the charge by the learned trial court on the basis of same set of evidence and even no appeal had been preferred against his acquittal by the prosecution.
Learned counsel for the appellant argued that in the absence of availability of any plausible/reliable material against the appellant to connect him with the commission of offence, the learned trial court, was not justified in passing conviction against him. Learned counsel in the circumstances prayed for clean acquittal of the appellant from the charges.
12. On the other hand, learned Deputy Prosecutor General assisted by learned counsel for the complainant while controverting the assertions made by learned counsel for the appellant supported the impugned judgment passed by the learned trial Court, It was argued that the appellant is well named in the crime report with specific allegation. It was submitted that the prosecution witnesses had fully implicated the appellant with the crime alleged. It was argued that recovery of danda had been affected from the appellant which sufficiently connect him with the commission of the offence. It was submitted that during the course of investigation, the appellant was found guilty and his name has been placed in column No, 3 of the report under section 173, Cr.P.C. In such backdrop, it was argued that the learned trial court while taking note of each and every aspect of the case has recorded conviction/sentence against the appellant, which does not invite any interference by this Court.
13. Arguments advanced from both sides have been heard. I have also gone through the record available on file with the able assistance of learned counsel for the appellant, learned counsel for the complainant, as well as, learned Deputy Prosecutor General.
14. It is cardinal principal of law that each criminal case has itsown peculiar fact and circumstances and that has to be weighted on the judicial parlance while taking into consideration all the dfacts and circumstances brought-forth. It is very unfortunate occurrence in which daughter of the complainant namely Mst. Sheeman Bibi (deceased) was done to death by the accused persons in a very brutal manner. The stamp of injuries on the person of the deceased can only reflect the cause of death, severity of injuries and weapon used during the occurrence, but the same cannot disclose the name of assailants. The occular account in this case consists upon the statements of Abid Hussain (P.W.10) and Muhammad Ahmad (P.W.11). It is worth mentioning here that Abid Hussain (P.W.10) himself whereas Abdur Rehman son of Muhammad Ahmad (P.W.11) are accused persons of a previous murder case in which Nazir Ahmad, father of the appellant (co- accused since acquitted) was a prosecution witness. Moreover, Abid Hussain (P.W.10) is resident of 3/4 K.M. And Muhammad Ahmad (P.W.11) is resident of 1/1-1/2 miles away from the place of occurrence. They had admitted that they reached the place of occurrence by chance. In such like circumstances it is settled principle of law that statement of interested and inimical witness requires independent corroboration to base conviction upon the same. Reliance in this regard is placed upon the dictums of law laid down by the august Supreme Court of Pakistan in the cases of Niaz v. The State and Muhammad Hussain v. The State (PLD 1960 Supreme Court (Pak). 387), Nazir and others v. The State (PLD 1962 Supreme Court 269), Ata Muhammad and another v. The State (1995 SCM R 599), Haji Rab Nawaz v. Sikandar Zulqarnain and 7 others (1998 SCM R 25) and Abdul Ghaffar v. The State (PLD 2007 Supreme Court 467). In the case titled Haji Rab Nawaz v. Sikandar Zulqarnain and 7 others (1998 SCM R 25), the august Supreme Court has held as under:- "----S. 302/34---Appreciation of evidence---Interested witness---Courts in a case involving capital punishment will not base conviction of an accused solely on the testimony of interested witness unless such evidence finds corroboration by some other independent and unimpeachable piece of evidence or circumstance in the case---".
In the base of Abdul Ghaffar v. The State (PLD 2007 Supreme Court 467), the august Supreme Court of Pakistan has held as under:- "----Interested witness---Connotation---Interested witness is undoubtedly a competent witness under Qanun-e-Shahadat, 1984---Proposition that testimony of an interested witness should be corroborated by independent evidence is not of universal application-Question of reliability of such witness must depend upon the circumstances of each case and the quality of his evidence- Court may accept the testimony of an interested witness without any corroboration, if the same is found reliable, but as a matter of prudence Court insists on corroboration of his evidence when he is inimically disposed towards the accused and it will, therefore, be unsafe to base a conviction on his testimony alone."
There is no denial to this fact that the appellant is named in the crime report, but the fact remains that no specific weapon of offence had been mentioned in the crime report nor any specific injury was attributed to him, rather it was stated that both the accused persons committed murder of the deceased by blows of hatchets/chhuras, however while lodging the private complaint after the elapse of more than six months, the complainant took somersault and ascribed specific injury to the appellant with the averments that he caused wrong side of hatchet blows at the left arm and head of the deceased. In the dictum of law laid down by august Supreme Court of Pakistan in the case of Muhammad Rafique and others v. The State and others (2010 SCM R 385), it has been held that the statement of any witness improved at trial is not worth relying rather such improvement creates serious doubts about its veracity and credibility. Similar view was held in another case reported as Saeed Ahmed Shah v. The State (1993 SCM R 550).
15. Though as per contents of the crime report, the stance of the prosecution is that the deceased was done to death by the appellant along with his co-accused (since acquitted) while causing hatchets/chhuras blows, but it is worth mentioning here that Lady Dr. Farzana Shaheen (P.W.6) who conducted postmortem on the dead body of the deceased has opined in categorical terms that the injuries were result of blunt weapon. In view of the statement of the Medical Officer wherein a definite opinion has been given, the ocular account is belied by medical evidence. Such contradiction makes the prosecution case doubtful. Reliance in this regard is placed upon the dictum of law laid down by the august Supreme Court of Pakistan in the case of 'Abdul Majid alias Jaidu, etc. v. The State' (1996 SCM R 333), wherein it has been held as under:- "Ocular evidence that injuries to deceased were inflicted by three convicts, would be reliable when it stands corroborated by medical evidence."
Similar view was affirmed by the august Supreme Court of Pakistan in the case of `Mst. Jallan v.
Muhammad Riaz and others' (PLD 2003 SC 644), wherein it was observed:- "Contradiction between ocular evidence and medical evidence would create doubt in prosecution case benefit of which would go to no one except the accused".
16. Another important aspect of the case in hand is that the medical officer (P.W.6) had stated that the postmortem examination in this case was conducted with the delay of about 28 hours. This fact is suggestive of the fact that the FIR was not lodged at the time mentioned in the crime report and the prosecution had cooked up a story before preparing police papers. Reliance in this regard is placed upon the dictum of law laid down in the case of Khalid alias Khalidi and 2 others v. The State (2012 SCM R 327), wherein it has been held as under:- "----Incident took place at 2-00 a.m. FIR was recorded at 4/5 a.m., doctor medically examined injured person at 4 a.m. But conducted postmortem examination of deceased at 3-00 p.m. i,e, after about ten hours, such facts showed that FIR was not lodged at the given time---".
In the case of Irshad Ahmed v. The State (2011 SCM R 1190), the august Supreme Court of Pakistan has observed as under:- "----S. 302---Qatl-i-amd---Post-mortem examination----Delay--in postmortem examination is generally suggestive of a real possibility that time was consumed by police in procuring and planting eye-witnesses and in cooking up a story for prosecution before preparing police papers for getting a post mortem examination of dead body conducted".
17. An important aspect of this case is that Abdur Rehman, eyewitness of this case was given up by the prosecution unnecessary. In this background negative inference would be drawn that had he appeared before the learned trial Court, he ought not to have supported the prosecution version and prosecution case is squarely hit by the Article 129(g) of Qanun-e-Shahadat Order, 1984, as is held by august Supreme Court of Pakistan in the case of Lal Khan v. The State (2006 SCM R 1846) in the following terms:- "----Art. 129(g)---Criminal trial---Withholding natural witness---Presumption--- Act of withholding of most natural and a material witness of occurrence would create an impression that had such witness been brought into witness-box, he might not have supported the prosecution---Prosecution, in such eventuality must not be in a position to avoid the consequence".
Though recovery of danda (P-1) had been effected from the appellant by the Investigating Officer, but the appellant was stated to be armed with hatchet, therefore, recovery of the danda is inconsequential. Even the alleged danda is not bloodstained. Moreover, Nazir Ahmad, co-accused was acquitted of the charge by the learned trial court on the basis of same set of evidence and the prosecution has not even opted to assail their acquittal before this Court.
In the instant case after examining the prosecution case from all corners and evaluating it on the touchstone of interpretation of dictum of "safe administration of criminal justice" this Court has arrived at the conclusion that in this case the prosecution has miserably failed to establish its case against the appellant beyond reasonable doubt.
18. Moreover, it is established principle of law that for extending the benefit of doubt in favour of the accused, so many circumstances are not required, rather one circumstance which creates reasonable doubt in E the veracity of the prosecution version, can be taken into consideration for the purpose, not as a matter of grace, rather as a matter of right. Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the cases of "Tariq Pervez v.
The State" (1995 SCM R 1345), "Riaz Masih alias Mithoo v. The State" (1995 SCM R 1730) and "Muhammad Akram v. The State" (2009 SCM R 230). In the case of "Tariq Pervez v. The State" (1995 SCM R 1345), the august Supreme Court of Pakistan has held as under:- "---Art.4---Benefit of doubt, grant of---Forgiving benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubts---If a simple circumstance creates reasonable doubt in a prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right".
19. The nutshell of the above discussion is that the prosecution has badly failed to substantiate its case against the appellant to the hilt and the learned trial Court was not justified in convicting him while basing upon such untrustworthy/uncorroborated evidence, which even otherwise is full of material contradictions 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 Court may err in letting off 100 guilty but should not convict one innocent person on the basis of suspicion. Resultantly while setting aside the conviction and sentence recorded by the learned trial Court in terms of judgment dated 28-2-2007, Criminal Appeal No,375 of 2007 by Muhammad Mushtaq/appellant is ACCEPTED IN TOTO. Consequently he is ordered to be acquitted of the charge in this case. He be released forthwith if not required in any other case.