Tariq Saleem Sheikh, J.:- By this consolidated judgment, we propose to decide Crl. Appeal No.1008 of 2011 and Murder Reference No.163 of 2011 arising from case FIR No.82/2010 dated 22-3-2010 registered at Police Station Dera Rahim, District Sahiwal, for of fences under Sections 302/324/148/149 PPC.
2. Brief facts of this case as set out in complaint Ex.PA (and FIR No.82/2010 Ex. PA/1 which was registered pursuant thereto) are that Yousaf Ali, the Complainant, and his son Usman Ali (deceased) ran an auto spare parts shop at Adda Nae-Wala Bungla. On the night between 21- 3-2010 and 22-3-2010, at about 2 a.m., Usman Ali got a phone call that their aforesaid shop had been set on fire. Immediately thereupon, Complainant Yousaf alongwith Liaquat Ali PW on one motorcycle and Usman Ali (deceased) and Shahbaz Ali PW on another motorcycle rushed to Adda Nae-Wala Bungla where they saw their shop ablaze. Some people had gathered there who were trying to extinguish the fire. Complainant Yousaf, his deceased son and the PWs joined them and with their joint efforts the fire was put out. They were just finished with the work when Appellant Muhammad Ishtiaq armed with pump action gun, Ashfaq armed with pistol and Mukhtar Ahmad alongwith two other unknown persons, who were also armed with firearms, came there. Co-accused Mukhtar Ahmad raised a Lalkara whereupon the Appellant fired a shot with his pump action which hit Usman deceased on his left shoulder and after passing through his armpit also hit Shahbaz PW, who was standing by Usman deceased, on his right flank. Complainant Yousaf and the PWs identified the Appellant and his co-accus ed in the light of an electric bulb installed there. Some people who had gone to their homes after the fire was extinguished came back and gathered at the place of occurrence. The Appellant and his co-accused fled from the scene firing in the air. Usman succumbed to his injuries and died on the spot while PW Shahbaz was seriously injured. The Complainant alleged that the motive behind the occurrence was that the Appellant and his co-accused wanted to get the above-mentioned shop vacated. According to him, altercations had taken place on this issue a number of times and the Appellant and his co-accused had also threatened him with dire consequences.
3. PW-10 Sanaullah S.I. investigated this case. He found that the Appellant was guilty of the offence while his co- accused Mukhtar Ahmad and Muhammad Ashfaq were innocent. During his cross-examination, PW 10 Sanaullah deposed that the DSP/SDPO verified his findings which were not challenged by the Complainant. He submitted report under Section 173 Cr .P.C. before the Court accordingly .
4. The learned Additional Sessions Judge, Sahiwal, summoned the Appellant and his aforementioned two co- accused for trial. Accused Ashfaq had absconded. Therefore, after due process, the learned trial Court declared him a proclaimed offender vide order dated 1-7-2010. Consequent thereupon, it also ordered separate trial of the Appellant and Mukhtar Ahmad under Section 512 Cr .P.C.
5. On 1-7-2010, the Appellant and Mukhtar Ahmad were indicted for offences under Sections 302/324/436/148/149 PPC. Both of them pleaded not guilty and claimed trial.
6. The prosecution produced 12 witnesses to prove its case which, inter alia, included the Complainant, eye- witnesses, the Medical Officer, and the Investigating Officer. The learned Assistan t District Public Prosecutor gave up PW Sajid Shahab being unnecessary and, vide statement dated 28-10-201 1, closed the prosecution evidence.
7. After the completion of the prosecution evidence, the learned Additional Sessions Judge recorded the statement of the Appellant and his co-accused Mukhtar Ahmad under Section 342 Cr.P.C. Both of them refuted the evidence recorded during the trial and pleaded innocence. When they were asked as to why the case in hand was registered against them, they stated that it was a night-time occurrence and the assailants could not be recognized due to darkness. They stated that they were not present on the spot at the time of occurrence and had been implicated owing to political rivalry. They also denied the presence of the Complainant and PW-3 Liaquat Ali on the spot at the relevant time. Neither the Appellant nor his co-accused Mukhtar Ahmad ventured into the witness-box for recording statement under Section 340(2) Cr.P.C. in disproof of the allegations levelled against them. They also did not opt to produce evidence in their defence.
8. On the conclusion of the trial, the learned Additional Sessions Judge pronounced its verdict holding the Appellant guilty for committing Qatl-i Amd of Usman Ali deceased. Accordingly , he convicted him under Section 302 (b) PPC and sentenced him to death with payment of Rs.100,000/- as compensation in terms of Section 544-A Cr.P.C. to the legal heirs of the deceased. In case of non-payment, it was ordered, the Appellant shall undergo simple imprisonment for a further period of six months. The learned Additional Sessions Judge, however , acquitted the Appellant of the charge under Section 324 PPC which pertained to murderous assault on Shahbaz Ali, the injured PW. No finding was given on the charge under Section 436 PPC. By the same judgment the learned trial Court acquitted accused Mukhtar Ahmad giving him benefit of doubt. The Appellant has filed Crl. Appeal No.1008/201 1 against his conviction and sentence. On the other hand, the learned Additional Sessions Judge has also sent Murder Reference No.163/201 1 to this Court under Section 374 Cr.P.C. for confirmation of the death sentence of the Appellant. The Complainant has not filed an appeal against the acquittal of Mukhtar Ahmad.
9. We have heard the learned counsel for the parties and have gone through the record with their able assistance.
10. At the very outset, we may observe that the learned trial Court had framed a specific charge against the Appellant that on the night between 21/22-3-2010 at about 2.00 a.m. he and his co-accused while armed with fire- arms formed an unlawful assembly and, in prosecution of a common object, committed rioting and set the shop of the Complainant (PW-1) on fire in Chak No.142/9-L, Sahiwal. While it was proved during the trial that the Complainant shop was set ablaze on the aforesaid date, no evidence was led to show that it was the Appellant and his co-accused who had committed the mischief. Even during the arguments before us, the learned counsel for the Complainant conceded this fact and added that no such allegation had been made against the Appellant and his co-accused in the FIR Ex.PA/1. He also admitted that the Investigating Officer, PW-10 Sanaullah S.I., also did not find any evidence during his investigation that the accused party had torched the shop in question.
11. In the instant case, there is no controversy regarding the place of occurrence. The prosecution' s stand that Usman Ali deceased was killed near his shop in Chak No.142/9-L, Sahiwal, was established by the PWs and was corroborated by the Post-mortem Report of Usman Ali deceased Ex.PG/PG-1 which showed that the soles of his feet and to some extent hands were having black ashes on them. These ashes were from the fire in that shop.
However , the dispute was with respect to the identity of the murderers. The prosec ution claimed that the Appellant committed the crime and he was identified by the Complainant, PW-1 Yousaf Ali, PW-2 Shahbaz Ali (the injured PW) and PW-3 Liaquat Ali, who recognized him in the light of an electric bulb that was lit at the site. The Appellant' s contention was that Usman Ali deceased was killed by unknown assailants who could not be recognized due to darkness.
12. PW-1 Complainant Yousaf Ali deposed that when he heard that his shop was ablaze he rushed there with PW-3 Liaquat Ali on one motorcycle while Usman Ali deceased got there with PW-2 Shahbaz Ali on another motorcycle.
PW-3 Liaquat Ali was the son-in-law of the Complainant and he lived in Chak No.136/9.L which was at a distance of one kilometre from the place of occurre nce. In a voluntary statement during his cross- examination, PW-1 Yousaf Ali attempted to explain his presence at the crime scene by saying that he was putting up with him on the fateful night. He did not give any reason for his stay there which made him a chan ce witness and weakened the evidentiary value of his testimony .
13. Now we turn to the claim of PWs Yousaf Ali and Liaquat Ali that they recognized the Appellant in the light of an electric bulb. According to PW-1 Complainant Yousaf Ali, the fire-shot was made from a place near the bridge of 9.L Rajba. The PWs variously described the distance between the said bridge and the place of occurrence. To PW-2 Shahbaz Ali it was 60/65 feet while PW-3 Liaquat Ali stated that it was about 50 feet. On the other hand, PW-10 Sanaullah S.I (the Investigation Officer) and PW-9 Muhammad Saeed Akhtar (the draftsman who prepared the scaled Site Plan Ex.PP) said it was 78 feet. More importantly , PW-9 Muhammad Saeed deposed that there was no source of light at Point No.3 in the Site Plan Ex.PP from where the firing was made. It goes without saying that the police did not take into its possession any bulb from that place. In our opinion, it was not possible to recognize the assailants from such a long distance in the darkness of the night. As such, chance s of mistaken identity cannot be ruled out.
14. PW-2 Shahbaz Ali, the injured PW, was the most natural witness who could lend credence to the prosecution' s case. However , he deposed that some unknown persons fired the shot which hit him on his right flank after passing through the left shoulder and armpit of Usman Ali deceased. Thereafter , he was taken to the hospital and thus did not know what happened thereafter . On the request of the learned prosecutor , this witness was declared hostile but he held to his ground and said that he did not recognize the assailants and re-confirmed that the shot was fired from the eastern side from a distance of 60/65 feet. He maintained that Complainan t Yousaf told him that it was the Appellant who had shot at him.
15. Although the learned trial Court accepted the request of the prosecutor and declared PW-2 Shahbaz Ali hostile, the question still remains whether the said witness had actually turned against the prosecution or was simply telling the truth. In Muhammad Boota and another vs. The State and another (1984 SCMR 560), it was held that an unfavourable witness is not necessarily a hostile witness. The Court said that a hostile witness is one who from his manner in which he gives his evidence shows that he is not desirous of telling truth to the Court. Answer of a witness to a certain question if it is indirect conflict with the evidence of other witnesses can never be a reason for allowing the witnesses to be treated as hostile and permitted to be cross-examined. In another case, Wahid vs. The State (NLR 2002 Cr. SC 6), the august Supreme Court of Pakistan ruled that evidence of a hostile witness could be taken into consideration in order to determine if the said witness was worthy of belief in the light of other evidence. In Mehboob Ali vs The State (1991 MLD 2455), it was held that a witness who is permitted to be cross-examined does not necessarily lose his credibility. His evidence can be relied upon by either party and the Court can come to its own conclusion after a consideration of whole of his evidence.
16. We have appraised the testimony of the PW-2 Shahbaz Ali and have found him truthful. He could not see the shooter because he targeted from distan ce and from a place which was not lit. Therefore, his statement does support the Appellant.
17. Admittedly , Usman Ali deceased succumbed to his injuries at the spot. PW-1 Yousaf Ali testified that the body of the deceased was taken to a private hospital at Adda Bangla Nai Wala (which was at a distance of one square from the place of occurrence) where the doctor confirmed his death. Munshi of the nearby petrol pump informed the police in the meanwhile and they came to that private hospital, examined the dead body and sent the injured PW Shahbaz Ali to the government hospital for treatment. The occurrence took place around 2 a.m. and the FIR was lodged at 3:00 a.m. after preliminary investigation. In Muhammad Hanif vs. The State (PLD 1977 Lah 1253 ), it was held that the FIR recorded after preliminary investigation at the spot loses its sanctity .
18. PW-7 Dr. Hafeez-ur-Rehman performed autopsy on Usman Ali deceased and as per Post-Mortem Report Ex.PG/PG-1 found the following injuries on his body: A. Entry wound fire arm. A lacerated wound 1 x 1 cm x deep going on outer uppe r part of left arm at curve of left shoulder .
B. Entry wound three injuries as Injury No.2, 3, 4 each measuring 1 cm x 1 cm into deep going on outer upper part of left arm.
C. Entry and exact wound labeled as Injury No.5. A lacerated wound 4 cm x 2/3 cm x skin deep on back upper part of left shoulder .
D. Exit wound of Injuries No.2, 3, 4 labeled as Injuries No.6,7, 8,three lacerated wounds 1 cm x 1 cm on upper inner part of left arm in the armpit into deep going, 2-1/2 cm apart from each other in triangular fashion.
E. Re-entry wounds of Injuries No.6,7,8 labeled as Injuries No.9,10 and 11. Three lacerated wounds as Injuries No.9, 10 and 11, 1 cm x 1 cm x deep going on outer upper part of left chest wall, placed in a triangular fashion in the armpit back upper part.
F. Injury No.12, an abrasion 2 cm x 1 cm on outer part of left elbow .
19. PW-7 Dr. Hafeez-ur-Rehman deposed that, in his opinion, all the injuries were ante-mortem and caused by fire- arm leading to rapid and excessive bleeding shock and death. Injury No.12 was an exception and was caused by blunt-edged weapon (falling down). Injuries No.1 to 11 were sufficient to cause death in the ordinary course of nature. The duration between injuries and death was immediate and between death and postmortem was about 12 hours.
20. PW-7 Dr. Hafeez-ur-Rehman also examined PW-2 Shahbaz Ali and, as per MLC Ex.PK, found on his person a lacerated wound 1 x 1 cm deep going at back lower part of left chest 9 cm from midline horizontally and 4 cm vertically above from crest of hip bone. The bone was bleeding and was wound of entrance with inverted margins.
21. The learned counsel for the Complainant vehemently argued that the medical evidence fully corroborated the ocular account. He contended that on this ground alone the conviction of the Appellant was to be upheld. We are afraid, this argument is misconceived. It is a settled law that medical evidence can only furnish details of the injuries sustained by a person living or dead and the kind of weapon used in the occurrence but it does not identify the culprits. Reliance is placed on Mursal Kazmi alias Qamar Shah and another vs. The State (2009 SCMR 1410), Muhammad Tasaweer vs. Hafiz Zulkarnain and 2 others (PLD 2009 SC 53), Haji Paio Khan vs. Sher Biaz and others (2009 SCMR 803), Muhammad Aslam vs. Sabir Hussain and others (2009 SCMR 985), Altaf Hussain vs. Fakhar Hussain and another (2008 SCMR 1103), Rahimullah Jan vs. Kashif and another (PLD 2008 SC 298), Akbar Ali vs. The State (2007 SCMR 486 ) and Machia and 2 others vs. The State (PLD 1976 SC 695 ).
22. Now we advert to the recoveries. The prosecution' s case is that the Appellant and his co-accused were armed with fire-arms. It was alleged that the Appellant held a pump action gun. After Usman Ali deceased was killed, they all went away , the Appellant raising Lalkaras and firing aerial shots. However , no crime empty was recovered from the spot which also impacts the prosecution version.
23. On 5-4-2010, during the course of investigation, on the disclosure and pointing of the Appellant, gun 12-bore and crime empty P.6 were recovered from his shop in the presence of witnesses which were secured vide Recovery Memo Ex.PF . The same were sent to the Forensic Science Laboratory whose report Ex.PR was positive.
This recovery was inconsequential because the weapon attributed to the Appellant was a pump action gun. Even otherwise, the crime empty P.6 was not recovered from the scene of occurrence but was recovered with the gun P.5 and the two were sent together for forensic analysis.
24. Finally , the motive. According to the prosecution, PW-1 Complainant Yousaf Ali and his son, Usman Ali deceased, carried on business in a rented shop at Adda Nae-W ala Bangla. The Appellant and his co-accused wanted to get that shop vacated from them. Prior to the occurrence, the parties altercated with each other on this issue and the Appellant and his co-accused had threatened the complainan t party of dire consequences.
Admittedly , the shop was not owned by the Appellant or any one from his side. It was rather owned by one Ali Ahmed Dogar . There was no litigation with respect to the said shop and the prosecution did not adduce any evidence to prove that the Appellant was interested in the shop. There is nothing on the record to prove the motive except a bald statement of PW-1 Yousaf Ali. No witness was even produced to prove the alleged altercations between the two parties. There was no allegation that the Appellant or his co-accused had torched the shop in question. In the circumstances, we hold that the prosecution has even failed to prove the motive that is alleged against the Appellant.
25. The upshot of this discussion is that the prosecution has failed to prove its case against the Appellant beyond reasonable doubt. Accordingly , we allow Crl. Appeal No.1008 of 2011. The conviction and sentence is set aside.
The Appellant is acquitted of the charge and he shall be released from jail forthwith , if not required to be detained in any other case.
26. As a sequel, death sentence awarded to Appellant Muhammad Ishtiaq is not confirmed . Murder Reference No.163 of 201 1 is answered in negative .