MISS AALIA NEELUM, J.---Riasat Ali son of Mansab Dad, Caste Gujar, resident of Guta Tarnawa, Tehsil and District Haripur, appellant was involved in case FIR No.71 dated 6-2-2011, offence under section 302, P.P.C. Registered at Police Station Taxila, District Rawalpindi and was tried by Mr. Muhammad Saeed Awan, Additional Sessions Judge, Taxila, District Rawalpindi. The learned trial Court seized with the matter in terms of judgment dated 20-2-2013, convicted the appellant under section 302(b), P.P.C. And sentenced him to life imprisonment. The appellant was further directed to pay Rs.1,00,000 as compensation to the legal heirs of the deceased in terms of section 544-A, Cr.P.C. And in case of default in payment thereof, to further undergo SI for six months. Benefit of section 382-B, Cr.P.C. Was also extended in favour of the appellant. The appellant has assailed the judgment of the learned trial Court through the instant appeal whereas Mst. Nazima Shaheen, complainant being dissatisfied with the quantum of sentence, filed Criminal Revision No.52 of 2013.
As both the matters are arising out of one and the same FIR, therefore, I intend to dispose of the same through this single judgment.
2. Prosecution story as contained in the FIR (Exh.PB) lodged on the complaint (Exh.PL) of Mst. Nazima Shaheen (P.W.8) is that her husband was Chowkidar in Gujar Market, Taxila. On the day of occurrence, her younger child became sick. The deceased, namely, Muhammad Niaz after procuring medicines, left for his duty to Gujar Market. At about 11-30 p.m., child of the complainant fell serious ill and subsequently the complainant along with her father, namely, Muhammad Zaman visited her husband at 12.10 at night. When the complainant and her father alighted from Rickshaw, suddenly a person whose name was later on known as Riasat Ali armed with pistol .30-bore fired at her husband, which hit on the arms and ribs of the deceased. The accused escaped from the scene whereas husband of the complainant, namely, Muhammad Niaz succumbed to the injuries at the spot. Thereafter, the Investigating Officer visited the spot and prepared rough site plan of the place of occurrence Exh.PM, prepared injury statement and also prepared inquest report Exh.PH/1-2 and handed over dead body to Rashid Nawaz Constable (P.W.2) for its autopsy. The Medical Examiner also handed over last worn cloths of the deceased i.e. Shalwar P-1, Kameez P-2, Pajama P-3, Sweater P-4, Jacket P-5, Shoes jogger P6/1-2, Topy Gilgity P-7 and one sealed phial said to contain lead bullet P-8 and took the same into possession through recovery memo Exh.PA.
3. Having found the appellant guilty, the Investigating Officer prepared report under section 173, Cr.P.C. And sent the same to the court of the learned Sessions Judge en-routed through the learned Illaqa Magistrate as provided under section 190(2), Cr.P.C. The learned Additional Sessions Judge vide order dated 29-3-2011 formally charge sheeted the appellant. The accused pleaded not guilty and claimed trial. The prosecution in order to substantiate its case, produced as many as Nine (9) prosecution witnesses.
4. Ocular account in this case had come out from the statement of Mst. Nazima Shaheen, complainant (P.W.8), Iftikhar Hussain, SI (P.W.9) is the Investigating Officer of the case whereas rest of the prosecution witnesses are formal in nature. Dr. Abu Hanifa Saeed (P.W.6) had conducted the postmortem examination upon the dead body of Ahmad Din, deceased and found following injuries on his person:-
(1) A gun shot lacerated wound (entry 2x2 cm on right arm (outer side)) 15 cm away from right shoulder joint. Edges were inverted, blackening was present.
(2) An exit wound the edges were everted or 1 x 1 cm on inner side of right arm, 6 cm away from right shoulder joint.
(3) An entry wound 1 x 1 cm on lateral aspect of right side of chest 8 cm away from right nipple.
Edges were inverted.
(4) An exit wound 1 x 1 cm on lateral aspect of the left side of the chest. 8 cm away from left nipple.
Edges were averted.
(5) An entry wound 1 x 1 cm on inner side of left arm, 15 cm away from left shoulder edges were inverted. Bullet was found and was handed over to police.
After conducting the postmortem examination, the Doctor arrived at the following opinion:- "In my opinion the probable cause of death was shock and haemorrhage due to injuries Nos.3 and
4. Injury No.3 is the entry of injury No.2 and injury No.3 is the exit of injury No.2 which was sufficient to cause death in ordinary course of nature caused by fire arm weapon."
5 .The learned Deputy District Public Prosecutor vide his separate statements gave up P.Ws. Naeem Rajwali C-4037 on 8-10-2012, Aurangzeb on 10-10-2012, Muhammad Zaman son of Jalal Din and Saeed Akhtar son of Tasawar Hussain on 10-12-2012 as being unnecessary and after tendering the report of Chemical Examiner Exh.PO, report of Serologist Exh.PQ and report of Forensic Science Laboratory Exh. PR closed the prosecution evidence, on 6-2-2013. Riasat Ali, appellant was examined under section 342, Cr.P.C., who opted not to appear as his own witness as provided under section 340(2), Cr.P.C. In disproof of the allegations levelled against him nor to lead defence evidence. In reply to the question why this case is against him and why the P.Ws. Have deposed against him, the appellant made the following deposition: - "The deceased was murdered by some unknown person but later on I was involved falsely in this case by the complainant party being in league with police so that they can grab amount from me. Whereas, I am innocent"
6. After hearing the arguments advanced by the learned counsel appearing on behalf of both the parties, the learned trial court, while evaluating the evidence available on the record, found the version of the prosecution correct beyond any shadow of doubt, resulting into conviction of the appellant in the above stated terms.
7. Learned counsel for the appellant has contended that there is contradiction between the medical evidence and ocular account; that it is a blind murder and presence of witnesses at the time of occurrence is doubtful; that the prosecution withheld its best evidence and the crime empties along with weapon were jointly sent to Forensic Science Laboratory therefore, no reliance could be placed on the report of Forensic Science Laboratory. Learned counsel has further contended that during cross-examination the complainant's case gave another picture of the occurrence, which belied the prosecution story. Learned counsel has lastly submitted that in the instant case evidence is not confidence inspiring, the prosecution has failed to prove its case against the appellant beyond any shadow of reasonable doubt, therefore, the appellant is entitled to be extended benefit of doubt and his ultimate acquittal from the charge.
8. As against above, the learned Deputy Prosecutor-General assisted by the learned counsel for the complainant has forcefully opposed the contentions raised by the learned counsel for the appellant. It has been argued by the learned counsel for the complainant that prosecution through leading cogent, confidence inspiring and most natural evidence proved its case against the appellant beyond any shadow of reasonable doubt. It has been argued by the learned counsel for the complainant that recovery of pistol and reports of Forensic Science Laboratory, Chemical Examiner and Serologist fully substantiated the prosecution case, therefore, the learned trial court was not justified in inflicting life imprisonment upon the appellant rather capital sentence of death would be appropriate to the act done by him and as such the appellant deserved no leniency.
9. The arguments advanced by the learned counsel for the parties have been heard. I have also gone through the record available on the file with the able assistance of learned counsel for the appellant as well as the complainant and the State.
10. In the instant case, the occurrence had taken place at 6-2-2011 at about 12-10 a.m. (night) whereas inter se distance between the place of occurrence and the police station is one kilometer, although police station is at the distance of one kilometer from the place of occurrence but the matter was reported to the police with delay of one hour and twenty (20) minutes for which no explanation was surrendered by the complainant, coupled with the fact that in the instant case incident was not reported to the police at the police station whereas the statement of Mst. Nazima Shaheen-complainant was reduced into writing as Exh.PL at Gujar Market, Taxila (place of occurrence) by Iftikhar Hussain, SI (P.W.9) which was read over to the complainant and in token of its correctness, she thumb marked the same and referred it to the police station through Zafraan Ali, constable for launching of formal FIR According to police "karwai" endorsed at the end of the complaint (Exh.PL), the statement of the complainant was recorded at 1-30 a.m. (night) coupled with the fact narrated by the complainant in the FIR (Exh.PB) that later on she came to know about name of the accused as Muhammad Riasat. The complainant while appearing as P.W.8, deposed during cross-examination which reads as under:- "When I was sitting in a nearby room/shop of the place of occurrence, I came to know about the names of Riasat accused for about 1-2 hours after the occurrence. Some persons present at the place of occurrence were saying that the name of the accused is Riasat."
Thus, preliminary inquires, deliberation and consultation on the part of the complainant cannot be ruled out prior to the registration of the FIR.
11. The duration between the injury and death contradicts the prosecution case. As per prosecution version, the occurrence took place at 12-10 a.m. (night) on 6-2-2011 and deceased-Muhammad Niaz succumbed to the injuries at the spot whereas the complainant while appearing in the witness box as P.W.8 deposed which reads as under: "When we reached there, 1 witnessed that Riasat All accused now present in court made a direct fire on my husband Muhammad Niaz which hit on his arms and ribs. On receiving the injuries."
Muhammad Niaz fell down and succumbed to the injuries."and during cross-examination the complainant (P.W.8) deposed as under:- "The persons present at the place of occurrence did not allow to touch the dead body of Muhammad Niaz because of the reason that my finger prints might be pasted on the dead body. I was restrained by the nearby shop keepers"
According to the Medical Officer P.W.6, probable time elapsed between injury and death is within one hour, thus the incident does not take place in the manner, as alleged by the prosecution. The Medical Officer also found one entry wound on right arm with blackening, whereas distance between points 1 and 2 as per site plan (Exh.PD/1-2) is eight (8) feet. The entry wound with blackening cannot be caused from 8 feet. It is held in the case of "Barkat Ali v. Muhammad Asif and others" (2007 SCMR 1812) that:- "Blackening on dead body would appear in case deceased received injuries from a distance of four (4) feet."
Which facts vitiate the prosecution case set forth by the ocular account. The prosecution case as given in the complaint Exh.PL by the complainant (P.W.8) is in conflict with the medical evidence given by Dr. Abu Hanifa Saeed (P.W.6). The conflict between medical evidence and ocular account creates doubt about the prosecution case. It is also held by the Hon'ble Supreme Court of Pakistan in the case of Barkat Ali's supra that:- "It is a settled law that oral evidence cannot be accepted to the extent of its inconsistency with medical evidence. See Mardan Ali's case 1990 SCMR 889, Bagh Ali's case 1983 SCMR 1292, Sain Dad's case 1972 SCMR 74 and Zardshad's case 1969 SCMR 644."
It is well settled principle law that whenever conflict between ocular and medical evidence was found, the Hon'ble Supreme Court of Pakistan acquitted the accused by extending the benefit of doubt.
12. Bare reading of the crime report reflects that the complainant along with her younger son and father went to the place of occurrence whereas she had not mentioned name of her younger son in the complaint (Exh.PL), whereas while appearing as P.W.8 she stated that on the day of occurrence she along with her ailing son namely, Araslan along with her father Muhammad Zaman (given up P.W.) went to Gujjar Market Taxila (place of occurrence) on a Rickshaw and as such she seems to be a chance witness. In order to justify her presence at the place of occurrence, she had to produce prosecution witnesses and the prescription or receipts. Whereas during cross- examination, she admitted that she did not hand over the prescription of doctor or receipt of the medicines to the police. In this situation, the best possible evidence could be the statement of Muhammad Zaman, (father of the complainant) whose statement was withheld by the prosecution. The complainant (P.W.8) deposed that shopkeepers informed her name of the accused and Saeed Akhtar tried to rescue her husband. The relevant part of cross-examination is reproduced as under:- "As I was carrying my son so 1 could not save my husband, however, Saeed Akhtar P.W. Tried to save him. Saeed Akthar P.W. Rushed towards Riasat accused to catch him and to save Muhammad Niaz, from being fired at but in the meanwhile Riasat accused made a fire upon Muhammad Saeed."
In view of above, Saeed Akhtar and shopkeepers were the most relevant witnesses but best evidence available to the prosecution had neither been produced before the police nor at the trial, hence in this backdrop the prosecution case is also squarely hit by Article 129 (g) of Qanun-e- Shahadat Order, 1984. Reliance is placed on the case law reported as Lal Khan v. The State (2006 SCMR 1846), which reads as under:- "---Article 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."
Non-handing over prescription of doctor or receipts led this awn to the conclusion that witness was not present at the spot at the time of occurrence, during cross-examination the complainant herself deposed as under:- "I did not hand over to the police prescription of doctor or receipts of the medicines."
The complainant admitted that she along with her ailing son and father Muhammad Zaman (given up P.W.) came at the place of occurrence but neither any medical prescription or receipts were produced nor Muhammad Zaman was produced as witness rather he was given up by the prosecution being unnecessary witness to corroborate the evidence of the complainant, therefore, no reliance can be put upon the evidence of the complainant (P.W.8). It is held in the case of Mst.
Shazia Parveen v. The State (2014 SCMR 1197) that:- "All the eye-witnesses produced by the prosecution were closely related to the deceased and they were admittedly chance witnesses who had failed to bring anything on the ,record to establish the stated reason for their availability near the deceased at the relevant time."
13. Yet there is another aspect of the case which also doubted presence of the 'complainant at the place of occurrence, as the complainant (P.W.8) deposed as under:- "I reached at the place of dead body forthwith when fire shot hit to Muhammad Niaz, deceased.
Muhammad Niaz died in my presence. He died soon after he fell down on the ground. As I was carrying my son so I could not save my husband, however, Saeed Akhtar P. W. Tried to save him.
Saeed Akhtar P. W. Rushed towards Riasat, accused to catch him and to save Muhammad Niaz from being fired at but in the meanwhile Riasat accused made a fire upon Muhammad Saeed.
When Muhammad Saeed rushed towards Riasat, the persons present at the place of occurrence stopped him that accused Muhammad Riasat is already in an anger position and will fire upon you."
The complainant (P.W.8) during cross-examination also deposed as under:- "At the time of fire, the accused and the deceased were in a fight position and close to each other.
Muhammad Niaz, deceased was trying to grapple Riasat accused in order to save his life as the Riasat accused was having a pistol. The fire hit Muhammad Niaz deceased from the front side."
It has been noticed that above said facts were not mentioned in the FIR at all, which led to the conclusion that it was an un-witnessed occurrence.
14. The prosecution in order to prove its case mainly relied upon the report of Forensic Science Laboratory (Exh.PR) according to which crime empty secured from the place of occurrence was matched with the pistol produced by the appellant at the time of his arrest. It is notable that P.W.9/Iftikhar Hussain, SI who deposed that on 11-2-2011 accused Riasat Ali (appellant) himself appeared before him and produced a pistol .30-bore, weapon of offence (P-9) before him in presence of Naeem Rajwali (given up P.W.) and Muhammad Javed-Constable (P.W.4). The appellant during his statement recorded under section 342 of Cr.P.C. Denied the fact that he produced the alleged pistol at the time of his arrest. The prosecution had not put specific question to the appellant that he himself appeared before the Investigating Officer for arrest in the instant case. It is well established principle of law that admission by the accused to the police for having committed the offence with alleged pistol is not admissible in evidence, as it hit by Article 38 of Qanun-eShahadat Order, 1984. P.W.4 during cross-examination showed lack of knowledge about arrest of the accused (appellant). The particular/specific question that accused himself appeared before the Investigating Officer and produced pistol .30-bore was not put to the accused during his examination under section 342, Cr.P.C., the prosecution cannot be permitted to rely on the statement of P.W.4 and P.W.9 in order to convict the appellant. As the said question does not refer to the fact that the accused (appellant) himself gave his arrest while appearing at police station/police post and same shall have to be excluded from the consideration against the appellant. In my view the said question cannot be said to have afforded an opportunity to the accused to explain the vital circumstances of giving his arrest by himself along with pistol. It is further notable that during investigation, the Investigating Officer (P.W.9) had collected one crime empty of .30-bore pistol (P-10) from the place of occurrence on 6-2-2011 whereas pistol .30-bore was allegedly produced before the Investigating Officer by the accused (appellant) on 11-2-2011.
However, those were sent to the office of Forensic Science Laboratory on 15-2-2011 i.e. Ten days after the occurrence and five days after arrest of the appellant, hence the same loses its evidentiary value. It is held by the august Supreme Court of Pakistan in the case of "Ali Sher and others v. The State" (2008 SCMR 707) that: "----S. 302---Re-appraisal of evidence---Sending of crimeempties---Delay---Crime empties allegedly found at the place of occurrence were retained in police station and were sent to Forensic Science Laboratory, along with the crime weapons, 12 days after the recovery of alleged weapons---Effect--Delay had destroyed the evidential value of such piece of evidence and the recoveries could not offer any corroboration to the ocular testimony."
15. It is well settled principle of law that the prosecution has to stand on its own legs whereas the prosecution cannot take any benefit of weakness of defence plea. It is held by the August Supreme court of Pakistan in the case reported as "Shera Masih and another v. The State" (PLD 2002 SC 643) that: "The defence plea of the accused even if is not supported by any evidence direct or circumstantial and being improbable is discarded, still it will not be a circumstance to prove the guilt of an accused and the prosecution has to establish its case by standing on its own legs".
16. The upshot of the above discussion is that the occurrence was not witnessed by the prosecution witnesses, even the complainant was also not present at the place of occurrence at the relevant time. Moreover, delay in lodging FIR, material conflict with medical evidence. It is well settled principle of law that surmises and conjectures cannot take place of proof. Under such circumstances, it cannot be said that the prosecution has proved the guilt of the accused- appellant beyond any reasonable doubt to warrant conviction. As per dictates of law benefit of every doubt is to be extended in favour of the accused/appellant.
17. Resultantly Criminal Appeal No.21 of 2013 is accepted. Conviction and sentence recorded by the learned trial court vide judgment dated 20-2-2013 is set aside as a consequence whereof, Riasat Ali, appellant is ordered to be acquitted of the charge in case FIR No.71 of 2011 dated 6-2-2011, offence under section 302, P.P.C. Registered at Police Station Taxila, District Rawalpindi and he is directed to be released forthwith, if not required in any criminal case.
18. So far as Criminal Revision No.52 of 2013 seeking enhancement in sentence of respondent No.1 inflicted by the learned trial court is concerned, for the afore-stated reasons, the same has no weight, which is accordingly dismissed.