MAZHAR IQBAL SIDHU, J.---This judgment will dispose of above captioned criminal appeal filed by Zafar appellant as well as Murder Reference for confirmation of his death sentence or otherwise, who was convicted by learned Addl. Sessions. Judge, Jhang in a case registered vide F.I.R.
No,362/06 dated 22-7-2006 under section 302, P.P.C. Registered at Police Station, Mochiwala, Distt.
Jhang vide impugned judgment dated 5-3-2007 and sentenced as follows:-- ZAFAR
(i) Death under section 302(b), P.P.C. As Tazir and to pay Rs,1,00,000 as compensation to the legal heirs of the deceased Imdad Hussain under section 544-A, Cr.P.C. And in default whereof to further undergo SI for six months.
2. The rueful story as spelt out by Sajid Akbar complainant (P.W.1) in F.I.R. Exh.PA/1 is that on 22-7- 2006 at 8-30 p.m., he along with his father Haq Nawaz, Chacha Ghulam Mustafa and brother Imdad Hussain (deceased) was sitting in courtyard of his house. In the adjacent Ehata, Zafar appellant and Jahangir sons of real Mamoon of father of complainant were living and sister of the complainant Mst. Sajida Bibi wife of Jahangir having two children was also living in that Ehata. The complainant along with his father and Ghulam Mustafa P.Ws. By hearing the noise of exchange of hot words between Imdad Hussain, his (complainant) brother and Zafar appellant from the said Ehata, rushed there where they saw that Zafar appellant enraged and he had pointed .12 bore gun towards Imdad Hussain. They restrained Zafar appellant from firing at Imdad Hussain but Zafar appellant fired at him hitting on left side of his chest and went through and through. Zafar appellant raised Lalkara that if anybody would come near, would be killed and escaped while brandishing his gun; that P.Ws. Shifted Imdad Hussain to hospital Mochiwala where he succumbed.
The motive behind the occurrence was that in the morning time there had been a petty scrimmage between Zafar appellant and Imdad Hussain deceased on the issue of letting loose cattle heads in the crop and due to that grudge appellant had killed the deceased in his house where he had gone to see his sister. Hence, instant F.I.R.
3. Muhammad Akram SI (P.W.10) deposed that on 22-7-2006, he was posted at P.S. Mochiwala as SI.
He on receipt of information proceeded to Mochiwala Hospital where dead body of the deceased was lying. He prepared injury sheet Exh.PE and inquest report Exh.PF and handed over the dead body along with police papers to Ali Muhammad constable for post mortem examination from DHQ Hospital, Jhang. He recorded the statement of the P.Ws. On 23-7-2006 he reached the place of occurrence. He secured blood stained earth, made it into sealed parcel and took into possession vide memo. Exh.PB attested by the P.Ws. He prepared rough site plan of the place of occurrence Exh.PJ. He also took into possession last worn clothes of the deceased vide recovery memo. Exh.PD attested by the P.Ws. He also got prepared scaled site plan from draftsman on 10-8-2006. On 9-8- 2006 he arrested appellant Zafar and on his pointing out gun P-1 was recovered from his house which was taken into possession vide recovery memo. Exh.PC attested by the P.Ws. He recorded the statements of the P.Ws. Stagewise. He handed over the case property to the Moharrar of P.S. For its safe custody in the Maalkhana.
4. After culmination of usual investigation, the challan was submitted against the appellant by placing his name in column No,3 to face the trial.
5. Learned trial Court after observing all the pre-trial codal formalities, indicted the appellant to which he did not plead guilty and claimed trial. Thereafter, the prosecution was directed to lead its evidence in order to substantiate the charge.
6. At the trial, prosecution, in order to prove its case, produced 11 witnesses in all.
Dr. Tausif Zafar Khan, MO (P.W.6) deposed that he on 23-7-2006 at 6-20 a.m. Conducted post mortem examination on the dead body of deceased Imdad Hussain and observed as follows:- INJURIES 1-A .A firearm' entrance wound 5 cm x 4 cm through and through with inverted margins on front of left chest upper part, 7 cm from nipple and 9 cm from mid line. Blackening was present around the wound.
1-B. Multiple firearms exit wounds (five in number) were present in the area of 7.5 cm x 6 cm on the left scapular region. Piece of cartridge removed from left lung, sealed into a parcel and handed over to the police.
REMARKS In his opinion, cause of death in this case was injury No,1-A leading to damage of left lung, severe haemorrhage and shock. This injury was caused by firearm weapon and was ante mortem.
Probable time that elapsed between injury and death was half to one hour and between death and post mortem was within 8 to 12 hours.
Exh.PG was the correct carbon copy of the post-mortem report, and Exh.PG/1 was the sketches of injuries, the same bore his signatures. He also endorsed Exh.PE and Exh.PF.
7. Learned ADA renounced P.Ws. Namely Ghulam Mustafa, Ummer Hayyat and Noor Muhammad as being de-trop and thereafter by tendering in evidence reports of Chemical Examiner Exh.PK and that of Serologist Exh.PL closed the prosecution case.
8. Thenceforth statement of the appellant was recorded under section 342, Cr.P.C. Wherein he gainsaid the charges and professed his innocence. He neither opted to make statement on oath as required under section 340(2), Cr.P.C. Nor opted to produce evidence in his defence. He while answering to the question "why this case against you and why the P.Ws. Have deposed against you?" stated as follows:- "I am innocent. All the P.Ws. Are related inter se and are inimical towards me due to family dispute.
In fact complainant party had fired at me which accidentally hit Imdad Hussain deceased".
9. At the conclusion of trial, the appellant was convicted and sentenced as mentioned op-cit. Hence, instant murder reference as well as appeal.
10. In support of this appeal learned counsel for the appellant' has argued that occurrence is nocturnal and source of light has not been mentioned either in the F.I.R. Exh.PA/1 or in the statements of the eyewitnesses recorded before court; to prove the same that there was illumination at the time of occurrence, prosecution has led no evidence and so far as mentioning of lightening of bulb in Exh.PH the scaled site plan at point No,4 is concerned, the same was not taken into possession by the I.O. During the investigation and the site plan does not show any wire or its operational button, in these circumstances, when night is regarded as dark normally, then no other conclusion is drawn except that there was darkness at the time of occurrence; moreso, prime duty of the prosecution remains to prove the identity of an accused during the commission of an occurrence.
As to motive, it has been submitted that as per prosecution s own case, there was no previous enmity between the parties and so far as incident of causing damage to standing crops by cattle heads is concerned, upon which scrimmage ensued between Zafar appellant and deceased Imdad Hussain is concerned, no direct evidence has been produced by the prosecution to prove it, therefore, the motive set up has conveniently been taken to have not been proved by the prosecution.
So far as ocular account of the prosecution case is concerned, learned counsel has exquisitely argued that the incident took place in the courtyard of the house of the appellant having boundary walls whereas presence of the houses of complainant and the P.Ws. Have not been found located around the place of occurrence, therefore, their presence at the night time at the place of occurrence is highly doubtful and if their presence for the sake of arguments is deemed to be correct, then their behaviour at the time of occurrence is irrational because none of them tried to restrain the appellant inside the house by shutting the outer door which has been shown in the scaled site plan Exh.PH only one towards north whereas another passage has been shown towards extreme southwest of the place of occurrence which is far away from the other door; their presence has also been tried to be doubted by referring postmortem report of the deceased, according to which injury No,1 of the deceased has shown blackening around its apertures whereas the site plan has shown distance between the deceased and the appellant at the time of occurrence as 20 feet and the doctor in his cross examination has explicitly admitted that injury was caused to the deceased within the distance of three feet. In view of this, learned counsel has given an outcome of non-presence of P.Ws. At the place of occurrence, however, both the P.Ws.
Sajjad Akbar and Haq Nawaz are bloodly related to the deceased as being brother and father of the deceased respectively. In these circumstances, their becoming P.Ws. Falsely cannot be ruled out.
As to the recovery of alleged .12 bore gun got recovered by the appellant on 12-8-2006, it has been submitted that neither it was made into sealed parcel nor any crime empty was taken into possession from the spot and no report of the Ballistic Expert of any sort in this respect exists, therefore, the alleged recovery cannot be used as corroborative piece of evidence against the appellant, thus, by concluding his arguments has solicited for acquittal of the appellant by accepting the instant appeal.
11. Learned Additional Prosecutor-General assisted by learned counsel for complainant has vehemently argued that in spite of the fact that incident took place during the night time but identity of the appellant is not questionable because the appellant never agitated this fact before learned trial Court and the parties were also known to each other before the incident which had taken place intramural house of the appellant, therefore, all arguments in this respect raised ad barram on behalf of the appellant are misconceived, the site plan has shown lightening of bulb at the time of occurrence.
For motive, learned counsel has argued that the same cannot be treated as sine qua non for the proof of guilt because it hiddenly rancours in the mind of doer what has to be seen is that the action of an accused which in this case is obvious the death of the deceased through a fire shot made by the appellant, therefore, its non-proof may not be considered marring and withered the prosecution case.
Ocular testimony has been argued to be relied upon on account of natural presence of the P.Ws. At the place of occurrence as they immediately took the deceased from the place of occurrence to the hospital where he succumbed and the matter was reported at 10-40 p.m. Whereas occurrence took place on 8-30 p.m. This fact alone is sufficient to establish the presence of the P.Ws. At the place of occurrence. Further argued that propinquity of the P.Ws. With the deceased by itself may not be taken in negative that they had become false witnesses or have falsely testified in absence of any criminal aforethought against the appellant.
Learned counsel has submitted that so far as behavioral working of the P.Ws. At the time of occurrence is concerned, the appellant was holding a shot gun, obviously, it is a formidable weapon, in this situation, if none of them has restricted the appellant at the place of occurrence, does not mean that they were not there and it cannot be expected from every person to take physical part in such like situation either to apprehend the accused or to become over smart to save the deceased on account of being pesky its own life.
To the medical evidence, it has been submitted that ocular account is in sync with medical evidence, seat of injury and its dimensional visibility observed by the doctor coupled with multiple exit wounds clearly has proved that the gunshot was made at the deceased; so as to spatial conflict as pointed out is concerned, law does not expect mathematical precision about it from the un-lettered yokels.
Towards recovery of crime weapon, it has been argued that even in its absence, prosecution has ably proved its case because ocular testimony has been corroborated by the medical evidence. So far as weapon used in the commission of occurrence is concerned and in all circumstances by concluding arguments, it has been prayed for dismissal of appeal by upholding impugned judgment.
12. Arguments heard assiduously as well as intently. Record has been scanned meticulously.
13. Occurrence took place on 22-7-2006 at about 8-30 p.m. And the injured/deceased Imdad Hussain was allegedly taken to Mochiwala Hospital where he succumbed to the injuries and statement: of the complainant Exh.PA was recorded at 10-30 p.m. By the I.O. Muhammad Akram SI (P.W.10). Vividly, the crime report appears to be prompt but the complainant Sajjad Akbar P.W. 1 admitted it correct in the statement that after preliminary investigation, police recorded his statement Exh.PA and the police visited the place of occurrence on the following day early in the morning. This fact has also further been corroborated by P.W.2 Haq Nawaz (eye-witness) that police had reached the place of occurrence on the next morning to inspect the place of occurrence. In these circumstances, how it can be said that F.I.R. Was lodged promptly, particularly, when the post mortem examination was conducted on the following day of the occurrence at about 7-00 a.m. It has been settled by this court as well as by the Hon'ble Supreme Court of Pakistan that whenever a statement under section 154, Cr.P.C. Is recorded after deliberations and preliminary inquiry, it carries no value. In this context, it has been appreciated that incident took place at night time and the night is normally regarded gloomy whereas prosecution has failed to prove any source of illumination available at the time of occurrence at the place of occurrence.
As far as the motive part of the prosecution case is concerned, indubitably, no enmity was found in existence between the parties prior to the happening of instant occurrence and so far as the incident of motive which had taken place in the morning on the day of incident over the damaging of crops by the cattle heads ensued in between the deceased and the appellant is concerned, about the same, no evidence has been brought on record by the prosecution and in this way, prosecution has not been able to prove its motive. It is an old aphorism/adage of law that if the given motive is not proved, then the prosecution has to suffer for it. When no evidence has been brought by the prosecution to prove it, then no other conclusion is, drawn except that prosecution has failed to prove it.
To the ocular account, it has been noticed that Sajjad Akbar P.W.1 is real brother of the deceased whereas Haq Nawaz P.W.2 is the father of the deceased as well as complainant. Vividly, both of them are related to the deceased. Now the question arises whether their presence at the place of occurrence has been proved by them beyond shadow of reasonable doubt, now, this aspect of the case has been appreciated by all attending circumstances of the case. Firstly, record is showing muteness as to locational situation of their residential house and if Exh.PH the scaled site plan of the place of occurrence does not establish situating their houses around it, then their arrival after hearing some noise intramural house of the appellant is highly doubtful. Again a cite has been made on the site plan Exh.PH, the same does not show presence of the houses of the complainant and the eye-witnesses.
Another aspect is very important that none of them tried to restrict/limit the appellant at the place of occurrence despite the fact that there were only two small passages to come or enter the house of occurrence. Had they been present at the place of occurrence, then by shutting either door could apprehend the appellant at the place of occurrence along with weapon especially when single fire has been alleged on the deceased and the appellant has not been alleged firing during fleeing away.
Another significant aspect negates the presence of the eyewitnesses at the place of occurrence is that Medical Officer (P.W.6) while conducting post mortem examination has noticed signs of blackening around the aperture entry wound and in the cross-examination, he has described the distance in between the accused and the deceased at the time of firing three feet whereas scaled site plan EXh.PH prepared on the instructions of the I.O. Muhammad Akram SI (P.W.10) and on the pointing out of the eye-witnesses shows the distance of the appellant from the deceased at the time of occurrence as twenty one (21) feet and P.W.8 Muhammad Anwar Asif draftsman has categorically stated that the scaled site plan Exh.PH was prepared on the pointing out of the P. Ws and distance in between point No,1 where the deceased has been shown to have received fire shot injuries and point No.2 where the appellant has been stated to be present at the time of occurrence as 21 feet and this distance has also been narrated by I.O. P.W.10 as 3 Karams, the same distantial dissonance in between the scaled site plan Exh.PH and the Medical Office rationally creates doubt as to the presence of the P.Ws. At the place of occurrence, so without any fear of contradict, doubt has to be resolved in favour of the accused, thus, presence of the P.Ws. At the place of occurrence has not been proved beyond shadow of reasonable doubts, therefore, their testimony is thrown out of consideration and is disbelieved. Regarding the recovery of .12 bore double barrel gun, the crime weapon P-1 allegedly recovered on the pointing out of the appellant is concerned, the same need not be discussed for want of any Ballistic Expert report and the same does not advance the prosecution case.
As to spacial out-of-sync highlighted op-cit is concerned, the court has sought guidance from the case titled Barkat Ali v. Muhammad Asif and others (2007 SCMR 1812) wherein Hon'ble Supreme Court of Pakistan has held in Post (a) as follows:-- "According to eye-witness, deceased was hit from a distance of 30/35 feet, but medical report showed burning and blackening on dead body---Blackening would appear on dead body in case deceased had received injuries from a distance of four (4) feet---Medical evidence had, thus, contradicted-statement of eyewitnesses---Accused were acquitted of the charge in circumstances."
And in case titled Amin Ali and another v. The State (2011 SCMR 323) at head note (a), observed as follows:-- "Ss. 302 & 324---Qatl-i-amd and attempt to commit Qatl-iamd---Reappraisal of evidence--- Firearm injuries-Distance, determination of---Medical evidence and ocular account-Conflict- Benefit of doubt---All prosecution witnesses deposed that deceased received three injuries and injured person received fire shot from roof of a shop---Death sentence awarded to accused by Trial Court was converted into imprisonment for life by High Court---Validity---Medical Officer found six injuries on the person of deceased and one of the injuries had blackening---None of the witnesses deposed that any of the accused had caused injuries from a close range but on the contrary in site plan, place of firing was shown 8 feet from deceased-From such distance, injury with blackening on the person of deceased could not be caused from a distance of less than 3 feet---Medical Officer found one entry wound on the back of injured person with blackening and such wound could not be caused from long distance---Ocular testimony was in conflict with medical evidence, thus deceased and injured did not receive injuries in the manner as alleged by prosecution---Prosecution failed to prove case against accused beyond any reasonable doubt, therefore, they were entitled for benefit of doubt, which was given to them---Conviction and sentence awarded to accused was set aside by Supreme Court and accused were acquitted of the charge---Appeal was allowed."
14. What has been discussed above, its sequel is that prosecution case is replete with doubts and has failed to prove its case against the appellant beyond any shadow of reasonable doubt, therefore, instant appeal is allowed. Resultantly, conviction and sentence of the appellant is set aside and he is acquitted of the charge imputed against him by extending benefit of doubt. He is in jail, directed to be affranchised in this case, in a trice, if not required in any other case. Resultantly death sentence inflicted upon the appellant is NOT CONFIRMED and murder reference is answered in the NEGATIVE.