AALIA NEELUM, J: Muhammad Sarrwar-appellant has preferred this appeal against judgment dated 30.09.2003 whereby respondent No.1 namely Mehboob Alam was acquitted by the learned Additional Sessions Judge, Daska, who being involved in case F.I.R. No.39 of 2002, dated 17.02.2002, registered under Section 302 P.P.C. at Police Station, Mautra, Tehsil, Daska, District, Sialkot was tried by Mr. Jamshaid Hussain, learned Additional Sessions Judge, Daska and ultimately he (respondent No.1) was acquitted of the charge.
2. The prosecution story as narrated in the F.I.R. (Exh.PB/1) lodged on the complaint (Exh.PB) of Muhammad Sarwar son of Ghulam Nabi (PW-2) that he went to village Metlay to see his paternal uncle-Muhammad Aslam. At 10:30 p.m. the complainant himself, his paternal uncle and paternal cousin were sleeping in veranda whereas complainant's paternal aunt was sleeping in the room.
An unknown young man armed with dagger entered into the house of Muhammad Aslam and asked Shagufta to go with him, whereupon she made hue and cry, upon which, Muhammad Aslam and Khalida (paternal uncle and aunt of the complainant) woke up. When Muhammad Aslam tried to apprehend the unknown accused, he gave dagger blow (Khanjar blow) at right side of the belly of Muhammad Aslam. The accused by leaving behind his chadder and hawai chappal fled away from the spot by using upstairs. The complainant chased the accused but he succeeded in escaping. It is also stated that at the time of alleged occurrence, an electric bulb was on in the Veranda. On hearing hue and cry, many people of the vicinity also woke up. The complainant brought his paternal uncle-Muhammad Aslam to the Civil Hospital, Daska in an injured condition and Medical Officer after providing first aid, referred Muhammad Aslam to Gujranwala Hospital where in emergency-ward, Muhammad Aslam succumbed to the injuries. Thereafter the complainant brought back the dead body of Muhammad Aslam-deceased to the Civil Hospital, Daska. On receiving information about the alleged occurrence, Saif ullah, S.I. (PW-11) reached at Civil Hospital, Daska and Muhammad Sarwar (PW-2) made his statement (Exh.PB) which was reduced into writing and the complainant signed the same in token of its correctness. The complaint was sent to Police Station for chalking out the formal F.I.R. to Haq Nawaz at 2:00 a.m.
(night) and thereafter the investigation came up before Saif ullah, S.I. (PW-11), who prepared the inquest report (Exh.PH), application for postmortem examination (Exh.PH/1), injury statement (Exh.PK) and despatched the dead body to mortuary and the same was escorted by Muhammad Afzal, Constable (PW14) for postmortem. Thereafter he visited the place of occurrence and beside recording the statements of prosecution witnesses in terms of Section 161 Cr.P.C, he secured the bloodstained earth vide recovery memo Exh.PG, attested by the PWs. He also prepared rough site plan of the place of occurrence (Exh.PL). On the same day, Mst. Khalida Bibi and Sajida Bibi produced before the Investigating Officer (PW-11), Woolen Chadder (P-4), Hawai Chappal (P-5/1- 2), which he took into possession vide memo Exh.PE.
3. After postmortem examination, last worn clothes of Muhammad Aslam-deceased, Qameez (P- 1), Shalwar (P-2) and Bunian (P-3), all bloodstained were produced by Muhammad Afzal (PW-14) before the Investigating Officer which he took into possession vide recovery memo Exh.PD. On reaching at police station, the Investigating Officer, handed over the case property to the Moharrar Malkhana for safe custody and onward transmission to the quarter concerned and recorded statements of the prosecution witnesses under Section 161 Cr.P.C on the direction of the Investigating Officer and on pointing out of the prosecution witnesses, Akhter Naqash, Draftsman (PW-15) prepared scaled site plan of the place of occurrence Exh.PN and Exh.PN/1 which were handed over by PW-15 to the Investigating Officer on 25.02.2002.
4. Thereafter, the investigation came up before Munir Ahmad, S.I. (PW-16) who on 07.03.2002 arrested Mehboob Alam and on 08.03.2002 the accused was sent to the judicial lockup for the purpose of identification parade. On 14.03.2002, identification parade was held in the District Jail, Sialkot, when the complainant (PW-2) identified the accused. The original identification parade was produced by PW-12 as (Exh.PM). On 18.03.2002, during the course of investigation, the accused- Mehboob Alam after making disclosure lead to the recovery of bloodstained dagger (P-6) from his residential house from a Jasti box, which the Investigating Officer took into possession vide recovery memo Exh.PF. The Investigating Officer also prepared Exh.PF/1 site plan of place of recovery.
5. Having found the respondent No.1 guilty, the Investigating Officer prepared report under Section 173 Cr.P.C and sent the same to the court of Sessions enrouted through the learned Illaqa Magistrate as provided under Section 190 (2), Cr.P.C. On 02.12.2002, the learned Additional Sessions Judge, Daska formally charge sheeted the respondent No.1 to which he pleaded not guilty and claimed trial. The prosecution in order to prove its version, produced as many as sixteen (16) witnesses. Muhammad Sarwar (PW-2) is the complainant of the case, whereas, prosecution version of ocular account was substantiated through the statement of Shagufta Aslam (PW-8). On presentation of complaint, Ghulam Qamar Abbas, S.I. (PW-10) had chalked out formal F.I.R. Akhter Naqash, Draftsman (PW-15) had prepared scaled site plan of the place of occurrence, whereas, investigation in this case was conducted by PW-11 and PW-16 namely Saif ullah, S.I. and Munir Ahmad, S.I., respectively.
6. Dr. Abdul Wahab (PW-1) on 16.02.2002 and 17.02.2002 conducted the Medicolegal Examination of the injured-Muhammad Aslam and prepared Medicolegal Certificate Exh.PA.
7. Dr. Muhammad Munam Javed (PW-3) on 17.02.2002 at 11:55 a.m. (day) had conducted post examination upon the dead body of Muhammad Aslam and observed following injuries on his person: INJURIES.
A stabbed incised wound oblique in direction 4 x 3 cm 5 cm below and 2 cm away the umbilicus on right side of abdomen.
After conducting the postmortem examination, the doctor rendered the following opinion:- OPINION.
"In my opinion, the sole injury which was ante-mortem and caused by sharp edged weapon proved fatal caused extensive bleedings sufficient enough to cause death in ordinary course of nature. Time between injury and death remained between two to three hours and between death and postmortem 10 to 12 hours."
8. Learned Deputy District Attorney gave up Nazir Ahmad, Ijaz Hussain, Muhammad Asghar and Mst.
Khalida Bibi, PWs on 16.04.2003, Raja Mushtaq Ahmad, Assistant Superintendent Jail and Muhammad Arif, Warden Sialkot jail on 04.06.2003, Haq Nawaz 917/C on 17.06.2003, Muhammad Yousaf 1103/C on 03.07.2003 being un-necessary. After tendering in evidence, the report of Chemical Examiner (Exh.PQ), chemical examination report regarding bloodstained dagger (Exh.PR) and report of Serologist (Exh.PQ/1), learned Deputy District Attorney closed the prosecution evidence on 05.09.2003.
9. The respondent No.1 was also examined under Section 342 Cr.P.C wherein neither he opted to adduce evidence in his defence nor to appear as his own witness in terms of Section 340 (2), Cr.P.C in disproof of the allegations leveled against him in the prosecution evidence. While replying to the question why this case against you and why the PWs deposed against him, the respondent No.1 made following deposition:- "the case was registered due to enmity and suspicion. All the PWs are closely related with each other and due to this reason, they deposed against me."
10. The learned trial court after evaluating the evidence available on the record and in the light of arguments advanced from both sides, found that the prosecution has miserably failed to prove the allegations levelled against the accused (respondent No.1) resulting into acquittal of the accused (respondent No.1)
11. We have carefully considered the submissions made on behalf of the learned counsel for the appellant and have gone through the record.
12. As per prosecution version, contained in the crime report (Exh.PB/1), the occurrence had taken place on the night of 16.02.2002 at 10:30 a.m. when unknown accused inflicted khanjar blow to the deceased at right side of his belly. The deceased was shifted to the Civil Hospital, Daska in injured condition where immediate medical aid was provided to him by Dr. Abdul Wahab (PW-1) and from where he (injured) was referred to the Gujranwala hospital, where he (injured) succumbed to the injuries in emergency ward at 1:00 a.m (night) and the dead body was again escorted to the Civil Hospital, Daska. The inter-se distance between the place of occurrence and the police station was 18 Kilometers and according to the police karwai endorsed at the end of the F.I.R. the complaint was recorded at the Civil Hospital, Daska at 2:00 a.m. (night) on the complaint of Muhammad Sarwar (PW-2). It is noted that Muhammad Aslam was brought in the Civil Hospital, Daska at 11:45 p.m. on 16.02.2002 and he remained admitted in the hospital till 17.02.2002. At the time of his arrival in the hospital for medical examination, it was mentioned in the Medicolegal Certificate (Exh.PA) that he (injured) was brought by Muhammad Afzal 229/C (PW-14) through Rapt No.24 dated 17.02.2002. The injured was medically examined by Dr. Abdul Wahab (PW-1) who deposed during examination-in-chief that "on 16.02.2002 and on 17.02.2002, I conducted the Medicolegal Examination of the injured-Muhamamd Aslam s/o Ghulam Haider, aged 40 years, caste Jatt, r/o Maitley, Tehsil Daska, Police Station, Mautra, who was brought by Muhammad Afzal, Constable 229 of Police Station Mautra". This fact got support from the Medicolegal Certificate (Exh.PA). Dr. Abdul Wahab deposed during cross-examination that "at the relevant time, no private person was accompanying the injured/patient". We also noted that postmortem examination was conducted by Dr. Muhammad Munam Javed (PW3) at 11:55 a.m. The probable time between injury and death was 2 to 3 hours whereas between death and postmortem was 10 to 12 hours. There is no plausible explanation as to why postmortem of the dead body was delayed for eleven hours. This aspect of the matter is sufficient to cast doubt about the authenticity of the F.I.R. No doubt delay in postmortem alone is not fatal to the prosecution case but when we considered it with the other evidence, available on the record along with Medicolegal Certificate (Exh.PA), they do influence the mind of the Court and leave the impression that there had been some wrangling about the time of registration of criminal case. This creates serious doubt about the genuineness of the prosecution story including presence of the complainant at the scene of occurrence, as from the Medicolegal Certificate and from the deposition of Dr. Abdul Wahab (PW-1), it reflects that police was aware about the occurrence and police officer of same police station brought the injured to the hospital.
13. Now we come to the crucial question as to the identity of the accused (respondent No.1) which is before us. In this connection, the prosecution has relied on the testimony of Muhammad Sarwar- complainant (PW-2) who allegedly identified the accused during identification parade, Shagufta Aslam (PW-8) eye-witness and of Mst. Sajida Bibi (PW-6) who is witness of "Waj Takkar"
14. We shall deal with the ocular statement of the eye witness, Mst. Shagufta Aslam (PW-8). Mst.
Shagufta Aslam (PW-8) is daughter of the deceased-Muhammad Aslam. It is the case of the prosecution that unknown accused emerged to the house of the deceased for taking away Mst.
Shagufta Aslam (PW-8) and when the accused asked Mst. Shagufta Aslam (PW-8) to go with him, she made hue & cry, upon which, the deceased-Muhammad Aslam tried to apprehend the accused whereupon the accused gave "khanjar blow" to the deceased at his right side of belly. It is also stated that the accused had come there to outrage the modesty of Mst. Shagufta Aslam (PW- 8). Mst. Shagufta Aslam deposed during cross-examination that "before escorting to my injured father to the hospital, I had already disclosed the name of the accused as Mehboob Alam to my father, my mother and to my khala". However, Muhammad Sarwar-PW was not present at that time. PWMuhammad Sarwar had come to meet us. When I disclosed the name of the accused to my parents and khala, PW-Muhammad Sarwar was not present in the house and for the time being, had slipped away to any other place". Muhammad Sarwar (PW-2) during his examination- in-chief had not named the accused and he used the word unknown accused. During cross- examination, he admitted that "it is correct to suggest the land of my deceased paternal uncle and the accused are adjacent to each other." The deposition of Mst. Shagufta Aslam (PW-8) is not consistent with her statement that she identified the accused at the time of the alleged occurrence and she disclosed the name of the accused to her father, mother and khala." She admitted the suggestion and deposed that "it is correct to say that the footsteps of the accused on the roof and land of Musharaf were covered with the debris." In the same line, Muhammad Aslam (PW-2) deposed that "it is correct to suggest that the footsteps had been preserved by keeping debris thereon." Mst. Sajida Bibi (PW-6) also deposed during cross-examination that "it is correct to suggest that the footsteps found on the roof and in the house of Musharaf were covered with debris." If Mst. Shagufta Aslam (PW-8) identified the accused and accused is known to the prosecution witness, then there is no need to preserve the foot-mold of the accused. It is difficult to believe the witnesses. Had the accused been known to the eye-witnesses, he must be named in the F.I.R. as accused, as Mst. Shagufta Aslam (PW-8) deposed that before escorting the injured to the hospital, she disclosed the name of the accused. She also stated that at the time of her disclosure regarding name of the accused, the complainant was slipped away. It means that as per prosecution version, the injured was not shifted to the hospital soon after the occurrence and before shifting the injured to the hospital, Mst. Shagufta Aslam (PW-8) disclosed the name of the accused. We have scanned the entire evidence and reached to the conclusion that the accused (respondent No.1) was known to the prosecution witnesses. It is highly improbable that after disclosure of the name of the accused, they tried to secure foot-molds of the accused. On re- assessm ent of the evidence on this point, we did not find any reason to take a different view. The prosecution evidence seems to be afterthought. As far as identification parade is concerned, the features, complexion or likenesses of the unknown accused were not described in the F.I.R.
(Exh.PB/1), except that accused is described as middle height young person. It was only alleged that they (prosecution witnesses) could identify the accused. The test identification parade was held on 14.03.2012 in District Jail, Sialkot.
The proceedings of identification parade was supervised by Ch. Muhammad Suleman Ghumman, learned Judicial Magistrate (PW-12). Ch. Muhammad Suleman Ghumman, the learned Judicial Magistrate (PW-12) stated that the accused (respondent No.1) had raised the objection at the earliest opportunity that PWs already known to him and as such, he/they had to identify him. The learned Judicial Magistrate had noticed his objection and also mentioned the same in Exh.PW. The description of eleven dummies is confined only to their names, parentage and age and their description was not described. It is noticed by us that only Muhammad Sarwar-complainant (PW- 2) identified the accused by giving specific role of causing "khanjar blow" to the deceased. It is also notable that Mst. Shagufta Aslam (PW-8) admitted that she knew the accused and she disclosed the name of the accused before escorting the injured to the hospital but the complainant (PW-2) had neither moved any application for nominating the accused nor he mentioned the name of the accused in his complaint (Exh.PB). Since the prosecution witnesses already knew him (respondent No.1) and identification of accused during identification parade is highly doubtful. The identity of the accused is open to serious exceptions and is result of doubts. Likewise the absence of the complete description of dummies at the test identification parade without their any clue, whether they were fellow prisoners or outsiders; admitted dis-similarities in height, physique, features, complexion and appearance of the dummies. PW-2 in his statement (Exh.PB) in general way stated that he can identify the accused whereas during cross-examination, he deposed that he saw the hairstyle of the accused when he was scuffling with his deceased paternal uncle-Muhammad Aslam. The Investigating Officer, Saif ullah, S.I. (PW-11) deposed during cross-examination that "the complainant in his fard biyan (Exh.PB) did not state that he identified the accused from his hairstyle." In this view of the matter, the entire proceedings of identification parade, becomes doubtful. Reliance is placed on the case reported as "Ibrahim and others v. The State" (2009 SCM R 407) wherein Hon'ble Supreme Court of Pakistan has held that: "Similarity it was not mentioned whether the dummies were keeping any beard or not. Neither the ages of the appellants nor the ages of the dummies have been mentioned in the report. It is also noteworthy that according to Investigating Officer P.W.12, the appellants were arrested in this case on 24.04.2002 and were sent to judicial lockup on 25.04.2002 yet the identification test was conducted on 06.05.2002. Perusal of the record further reveals that the application for identification parade (Exh.P.A) was submitted on 02.05.202 after 8 days of the arrest of accused in the instant case. There is no plausible explanation for the delay in conducting of identification test which prima facie, strengthens the suspicion that the time was consumed for showing the accused to the PWs."
15. As far as the recovery of specific "khanjar" (P-6) which had allegedly been recovered from the respondent No.1 and report of Serologist (Exh.PR) in respect thereof is concerned, accordingly the "khanjar" was stained with human blood, however, at the risk of repetition, we may mention here that the bloodstained "khanjar" was recovered on 18.03.2002 i.e. after one month of the alleged occurrence. Hence, the report of the Serologist in this regard, can not be termed as reliable as related material substantiating the prosecution case in any manner whatsoever. Even otherwise, it does not appeal to reason that the accused might have kept "khanjar" with him intact in order to produce it before the Investigating Officer on his arrest. The respondent No.1 can not be expected to keep the bloodstained "khanjar" (P-6) in his house for a long period, when he could have easily disposed off the same. Reliance is placed on the judgment of Hon'ble Supreme Court of Pakistan in the case of "Bashir Ahmed alias Mannu v. The State" (NLR 1996 Criminal 234) wherein the learned Apex Court had disbelieved the prosecution evidence on this count.
16. As far as the veracity of the prosecution version, advanced by Mst. Sajida Bibi (PW-6) that on 16.02.2002 at "deeger wailey" she was present in front of her outer door of her house along with Mst.
Khalida Bibi (given up PW) when accused-Mehboob Alam passed near from the door of the house wearing a "hawai chappal" and "brown colour chadder" in the form of "bukkal" and on hearing hue and cry at 10:00 p.m. when she was attracted to the place of occurrence, she saw articles i.e. "hawai chappal" (P-5/1-2) and "chaddar" (P-4), however, the deposition of Mst. Sajida Bibi (PW-6) when confronted with her statement (Exh.PA) where colour of "Chaddar" was not mentioned as brown, rather it was mentioned as "mehroon". At the caste of repetition, Mst. Sajida Bibi (PW-6) admitted during cross-examination that footsteps found on the roof of the house were covered with debris. If she was sure about the involvement of the respondent No.1 in the alleged occurrence, then there was no need of preserving the foot-molds of the respondent No.1-Mehboob Alam. She admitted during cross-examination that "hawai chappal and chaddar" are market items and are easily available. It is an admitted fact that Muhammad Aslam-deceased was real behnoi of Mst.
Sajida Bibi (PW-6). She deposed that "the police had mixed the chappals and chaddar found on the spot with other similar chappal and chaddar. I had identified out of them chappal and chaddar left at the place of occurrence". Whereas complainant-Muhammad Sarwar (PW-2) deposed during cross-examination that "the police did not ask me to identify the chaddar and jooti found on the place of occurrence by mixing the same with certain similar articles". Whereas Saif ullah, S.I.
(PW-11) during cross-examination deposed that "I did not ask the PWs to identify the above said hawai chappal and chaddar after mixing the same with certain similar articles". This makes the testimony of PW-6, Mst.Sajida Bibi not probable. We do consider this discrepancy as significant enough to discard the veracity of the statement of PW-6. Even otherwise, the last seen evidence is the weakest type of evidence which as per settled principle of criminal justice, in isolation can not be made basis for conviction of any person especially in a case of capital charge.
17. After considering the facts and circumstances of the case and taking into consideration, the material on record and the evidence adduced in the trial, we find no reasons to take any view contrary to the view taken by the learned trial court. Taking cumulative facts of the circumstances and the testimony of the witnesses and documentary evidence into consideration, we are of the view that prosecution has failed to bring true facts before the Court. The story of incident is highly doubtful, the witnesses are not trustworthy and they have given contrary statements on material points.
18. Accordingly we find no reason to interfere with the judgment impugned into appeal, hence, appeal is dismissed.