Qazi Muhammad Amin Ahmed, J.--Criminal Appeal No, 497 of 2011 is clubbed with Cr1. Revision No, 297 of 2011 that arise out of an incident which occurred on 28.08.2008 at.
9.15 a.m. Within the area of 'Naala Sel' situated at a distance of 16-Kilometers from Police Station Chountra District Rawalpindi. Formal case was registered on 28.08.2008 at 01.45 p.m. Through FIR (Ex.PD/1) recorded by Ijaz Ahmad ASI (PW-7) on the basis of oral statement (Ex.PD) dated 28.08.2008 given by Mst. Shamim Akhtar at 12.30 p.m. At Civil Hospital, Rawalpindi.
' Akram accused died during the trial and case to his extent stood abated. Qazi Tariq Mahmood, Qazi Abdul Hameed, Muhammad Siddaqat, Mumtaz Ahmad and Qazi Mushtaq Ahmad, have been acquitted by the learned trial Judge, Rawalpindi who however proceeded to convict appellants are as under: 1) Muhammad Safdar - Appellant Under Section 324. PPC ' Sentenced to undergo six years R.I and fine of Rs, 50,00 0/- to the legal their of Touqeer Ahmad deceased, or in default thereof to further undergo two months S.I.
'Under Section 337-F(ii), PPC ' Sentenced to undergo three years R.I and fine of Rs, 50,000/- or in default thereof to further undergo two months S.I and also to pay Daman of Rs, 50,000/- 2) Arshad Mehmood - appellant. Under Section 302(b), PPC ' Life imprisonment with payment of compensation of Rs, 1,00,00W- to the legal heir of Touqeer Ahmad deceased u/S. 544-A of Cr.P.C. Or in default whereof to' further undergo S.I for six months.
' All the sentences of convict-appellant Muhammad Safdar were ordered to run currently. Benefit of Section 382-B, Cr.P.C. Was also extended to them.
' Prosecution story as contained in the FIR (Ex.PD/1) lodged on the basis of complaint is that on the fateful day i.e, 28.08.2008 at about 9.15 a.m. The complainant alongwith her husband Tauqeer Ahmad, (here in after referred to as the deceased) was going to Rawalpindi in vehicle No, RIT-7539 in the company of Raja Gulfam Akhtar and Raja Muhammad Imtiaz. The vehicle was being driven by the deceased. At about.
9.30 a.m. When, the complainant and the deceased reached near a place known as 'Naala Set accused Tariq Mehmood armed with danda, Muhammad Akram armed with a danda, Qazi Hameed armed with a danda, Sadaqat armed with iron rod, Muhammad Safdar armed with Churri, Mumtaz Khan armed with Churri and Mushtaq Ahmad armed with danda confronted diem in two vehicles bearing Registration Nos. RIP-7292 and RIR-1136. It is complainant's case that the accused halted deceased's vehicle and pulled him out. Tariq accused raised Lalkara pursuant whereto Muhammad Safdar accused dealt Churri blow hitting palm of right hand of deceased near little finger, second blow was given by Mumtaz Khan accused that landed on the chest of the deceased who felled on the ground when Mushtaq, Sadaqat, Qazi Hameed and Akram gave danda blows hitting the deceased on various parts of his body. PWs beseeched the assailants and shifted the deceased in injured condition to Civil Hospital, Rawalpindi who succumbed to his injuries on way to the Hospital. Through an undated supplementary statement (Ex.PQ) Mst. Shamim Akhtar (PW-4) graduated the number of accused from 7 to 8 by adding Muhammad Arshad appellant in the array of accused and transposed fatal role to the new entrant which was earlier ascribed to Mumtaz accused; her case is that she under confusion rendered erroneous nomination and attribution in Ex.PD.
2. Upon spot inspection LO., besides taking other investigative steps, secured blood-stained earth vide recovery memo. (Ex.PN), he also took into possession the vehicles Bearing Nos. RIR-1136, RIT7539 and RIP-7292 vide recovery memos (Ex.PZ, Ex.PAA & Ex.PBB) respectively. According to the report of Chemical Examiner (Ex.PCC) and that of Serologist (Ex.PDD) earth taken from the spot was found stained with blood of human origin.
3. Post-mortem on the dead body of Touqeer Ahmed (deceased) was conducted at 4.45 p.m. On 28.08.2008 by Dr.Amjad Ali Shah (PW2) at DHQ Hospital, Rawalpindi who observed as follow:-
(i) An abrasion in front of right shoulder 2 cm x 1 cm.
00 An abrasion in front of left shoulder2 cm x 1 cm.
(iii) An incised wound on medical margin of right hand below left finger 3 cm x I cm.
(iv) An-incised wound in upper abdomen 4 cm x 1.5 cm lies 10 cm below sternum deep going.
Corresponding tear present on Karaeez."
' The' Medical Officer opined that deceased got multiple injuries by both blimt and pointed sharp edged weapon. Injury No, 4 caused severe damaged to stomach and liver leading to severe internal bleeding which =awl hypovoluraic shock and death. The probable time between injury and death was within 1/2 hour. Time between death and poet-mortem was estimated as :8 to 8 hours.
4. Accused Qazi Akram, Qazi Tariq, Qazi Abdul Hameed, Mushtaq Ahmad, Mumtaz Ahmad and Safdar were arrested on 11,10,2008. Arshad Melunood and Siddesiat were arrested on 19.40.2008. On 19.10.2008, accused persons namely Qazi Tariq, Qazi Abdul Hameed, Mushtaq Ahmad and Qazi Akram produced danclas W4 04 P7.) which were taken into possession recovery memos (Ex.Pit, Px.PP, Ex.PT & Ex.PU) respectively. On the same day, Safdar accused upon a disclosure led to the recovery of Churri cP-8) from an open place near 'Naala Sel' secured vide memo. (Ex.PW). On 26.10.2008, Arshad Mehmood-accused upon disclosure led to the recovery of Churri (P-9) again from an open place which was secured vide memo. (Ex.PX). According to Seizer memos Churri (P-8 & P-9) were not stained with blood.
5. Upon submission of report under Section 173, Cr.P.C. All the accused faced trial, they were indicted on 03.02.2009, they pleaded not guilty and claimed trial.
6. Prosecution in order to prove charge against the appellants and co-accused produced as many as 13 witnesses besides placing reliance on forensic reports. From defence side, Abdul Majecd, (DW-1) was examined. Position taken by both the accused/appellants in their examination under Section 342, Cr.P.C. Is as follows: ' The appellant (Muhammad Safdar) took the following plea: "I am completely innocent and have nothing to do with the murder of the deceased, who was a person of bad character, having enmity with so many people, and was involved in number of criminal cases and activities. He was a short tempered and quarrelsome person. I produce copies of FIRs, which could be made available to me, registered again the deceased and the PWs bearing FIR No, 174 dated 07.09.2006, FIR No, 159 dated 16.09.2001, FIRNo, 121 dated 09.07.2006, FIR No, 75 dated 09.05.2008, FIR No, 84 dated 03.05.1998, FIR No, 381 dated 11.09.2005, there are other cases as well, which could not be traced. The occurrence remained a blind murder and un-witnessed occurrence. I have been falsely involved. The I.O. The complainant side that he will arrange a huge sum of money from the challaned accused and he prepared fake, fabricated and antedated record and the PWs have played in his hands upon his assurance of compensating them".
' Position taken by appellant (Arshad Mehmood) is as follows: "I am completely innocent and have nothing to do with the murder of the deceased, who was a person of bad character, having. Enmity with so man people, and was involved in number of criminal cases and activities. He was a short tempered and quarrelsome person. I produce copies of FIRs, which could be made available to me, registered again the deceased and the PWs bearing FIR No, 174 dated 07.09.2006, FIR No, 159 dated 16.09.2001, FIR No, 121 dated 09.07.2006, FIR No, 75 dated 09.05.2008, FIR No, 84 dated 03.05.1998, FIR No, 381 dated 11.09.2005, there are other cases as well, which could not be traced. The occurrence remained a blind murder and un-witnessed occurrence many persons were arrested by the I.O. Due to his suspicion and were released after taking bribe and illegal gratification. I was alsq involved on suspicion after approximately 1 and half months of the occurrence and upon the satisfaction of the I.O. About my innocence, he demanded a huge some of money as bribe, which I could not arrange. I have been falsely involved. The I.O.
Assured the complainant side that he will arrange a huge sum of money from the challaned accused and he prepared fake, fabricated and antedated record and the PWs have played in his hands upon his assurance of compensating them".
7. Upon conclusion of the trial, the learned trial Court acquitted Qazi Tariq Mehmood, Qazi Abdul Hameed, Muhammad Siddaqat, Mumtaz Ahmed and Qazi Mushtaq Ahmed, however, proceeded to convicted and sentence the appellants as detailed above. Hence, this appeal and Crl. Revision.
8. Learned counsel for the appellants contends that there are material contradictions and discrepancies in the prosecution evidence; that motive set up by the prosecution is false and weak, even not proved, as such does not extend structural strength to the prosecution case; that the case of the prosecution is highly doubtful; that co-accused were acquitted by the learned trial Court on the same set of evidence, which cannot furnish basis for appellant's conviction on capital charge without independent corroboration.
9. Conversely, the learned DDPP assisted by learned counsel for the complainant argued that prosecution had successfully proved its case beyond a shadow of doubt through ocular account furnished by eye-witnesses. The ocular account is supported by medical evidence and recovery of Churris. Learned counsel for the complainant while addressing his arguments in Crl. Revision No, 297 of 2011 contends that once the trial Court was satisfied about the culpability of appellants, there was no occasion for the learned trial Judge to visit them with any degree of leniency. Therefore, sentence awarded to Safdar and Arshad Mehmood appellants warrants
10. We have heard the learned counsel for the parties, learned MOP and perused the record.
11. Occurrence in this case took place at 9.30 a.m. And according to PW-4 lasted only for about 5 minutes and 10 minutes thereafter deceased in injured condition was moved for hospital and at 11.30 a.m. The deceased and PWs reached the hospital. Complaint (Ex.PD) is neither referred to nor got exhibited by Shamim Akhtar (PW-4), however, in any case it is prosecution own position that Ex.PD was recorded by Muhammad Mumtaz S.I (PW-11) at 12.30 p.m. In the hospital. What is surprising in this backdrop is that autopsy was conducted at 4.45 p.m. There is no explanation offered by the prosecution to account for this delay. It would not be unrealistic to assume that inquest report was not available till 4.45 p.m. This delay coupled with a supplementary statement which entirely changed the initial complexion of the prosecution ease heavily militates against the credibility of narration rendered in Ex.PD. We have noticed that undated supplementary statement of Shamim Akhtar PW has been exhibited as Ex.PQ and even this exhibition does not find mention in the statement of Sharnim Akhtar (PW-4) who merely referred to a supplementary statement of even date under Section 161, Cr.P.C. In any case the learned trial Judge ran into error in exhibiting supplementary statement purportedly made by Shamim Akhtar (PW4) as a supplementary statement is nothing more than a statement under Section 161, Cr.P.C. Which can neither be equated with First Information Report nor can be construed as an extension thereof. Such statement cannot be used for any purpose other than one provided in Section 162, Cr.P.C. Even incorporation of this supplementary statement is not free from doubts as according to Shamim Akhtar (PW-4), she did not join police investigation after her initial statement in the hospital. The relevant portion of her statement is reproduced below: "I did not join the police investigation after recording my statement in the hospital."
Statement of other eye-witnesses recorded in consonance with the changed version in supplementary statement can neither validate the case set up in the supplementary statement nor assume any credibility in isolation thereof. Although First Information Report has never been considered as the last word of the prosecution nor encyclopedia to contain minute details of the occurrence yet it is corner stone of the prosecution case and any shift in position taken therein is to be visited with extreme caution and care. Similarly, examination of prosecution witnesses under Section 161, Cr.P.C. Is a safeguard provided to an accused to ward off the possibilities of. Shifting positions by the prosecution witness. To avoid prejudice to the accused these time tested arrangements are to be jealously guarded. Mumtaz khan co-accused who was initially assigned fatal blow to Tauqeer Ahmad deceased has been acquitted. Case of Arshad Mehmood appellant is at par with Mumtaz Khan, if Mumtaz Khan's participation in the occurrence is held to be doubtful so is the case of the Arshad Mehmood; sauce for the goose is sauce for the gander. Now, adverting to the case of Muhammad Safdar who is attributed a Churri blow on the right palm of the deceased.
The injury ascribed to Muhammad Safdar appellant being 3 cm x 1 cm is trivial in nature which could possibly be sustained by the deceased while offering passive resistance being under assault which is a natural human instinct. The learned trial Judge ran into grievous error to convict Muhammad Safdar appellant on the charge of murderous assault after deceased's death. The motive is vague and non-specific and as such does not extend structural strength to the prosecution case. Evidence which has been disbelieved qua 6 out of 8 accused cannot furnish basis for appellants conviction without independent corroboration which is hopelessly lacking in the case. Recovery of Churris at the instance of appellants from open places accessible to all and sundry is not confidence inspiring even otherwise inconsequential as these were not found stained with blood. Prosecution cannot press these recoveries into service as independent corroboration.
Resultantly, Crl.. Appeal No. 497 of 2011 is allowed. Impugned judgment dated 17.10.2011 is set-aside and appellants are acquitted from the charge. Arshad Mehmood appellant is in jail, he shall be set at liberty if not required in any other case. Muhammad Safdar appellant is on bail, his sureties stand discharged.