' AALIA NEELUM, J.---The appellant-Abaid-ullah son of Bashir Ahmad, Caste Rajput, R/o Street No,9, Nigahban Pura, Faisalabad, who along with co-accused Sarfraz alias Kaloo (since acquitted), being involved in case FIR No,800-2006, dated 21.08.2006, offence under Sections 302, 34, P.P.C., registered at Police Station, Sargodha Road, District, Faisalabad and was tried by Mr. Muhammad Saeed Ullah Mughal, learned Additional Sessions Judge, Faisalabad. The learned trial court seized with the matter in terms of judgment dated 12.05.2007 while convicting the accused-appellant under Section 302(b), P.P.0 and sentenced him to life imprisonment with the direction to pay Rs,1,00,000/- as compensation to the legal heirs of the deceased and in case of default thereof, further undergo six months' S.I. The benefit of section 382-B, Cr.P.C. Was also extended in favour of appellant.
2. Feeling aggrieved by the judgment of the learned trial court, the appellant has assailed the same through filing Crl. Appeal No,799 of 2007.
3. The prosecution story as narrated in the FIR (Exh.PF/1) lodged on the complaint (Exh.PF) of Muhammad Riaz (PW-9) is that on 20.08.2006, at night time, Muhammad Aamar Irshad (since died), behnoi of complainant came to see him and at that time, brother of complainant namely Anwaar Elahi and Jamil Sher, cousin of complainant were present there and at about 12:15 a.m.
(night), Muhammad Aamar Irshad started to depart to his house, then complainant, his brother and cousin accompanied Muhammad Aamar Irshad and when they reached at the pulli of Ghausia School, suddenly, Imran armed with pistol, Abaid.Ullah equipped with pistol and Sarfraz alias Kaloo came there. Sarfraz alias Kaloo raised lalkara whereupon Imran made straight fire upon Muhammad Aamar Irshad, which missed whereas fire made by the Abaid-ullah landed on the left hand of Muhammad Aamar Irshad. Thereafter Imran made second fire which hit on the left side of chest near the heart of Muhammad Aamar Irshad, who fell down and accused persons fled away while raising lalkara. The alleged occurrence was witnessed by the complainant (PW-9) and his companions whereas Muhammad Aamar Irshad was shifted to Allied Hospital, Faisalabad in injured condition, where he succumbed to the injuries in emergency-ward. The motive behind the occurrence is that Muhammad Aamar Irshad (since died) had expelled Imran, co-accused from the employment whereupon Imran used to extend serious threats to the deceased.
4. The complainant (PW-9) was on way to police station to report the matter when he (PW-9) met with Muhammad Feroze, S.I. (PW-11) at "Bolay Dee Juggi" and the complainant (PW-9) and moved complaint (Exh.PF), upon which, Muhammad Feroz, S.I. (PW-11) after endorsing police karwai sent the same to the police station through Muhammad Nawaz 2019/C for registration of formal FIR (Exh.PF/1). Thereafter the investigation came up before Hassan Muhammad, Inspector (PW-14), who visited the hospital, inspected the dead body of Aamar Irshad and prepared the injury statement (Exh.P13), inquest report (Exh.PC) and despatched the dead body to mortuary and the same was escorted by Pervaiz Akhter, Constable (PW-4) 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.PH, attested by the PWs. Thereafter the Investigating Officer (PW-14) took into possession the crime empty (P-4) of 30- bore pistol and prepared recovery memo (Exh.PJ). He also prepared rough site plan of the place of occurrence (Exh.PK).
5. After postmortem examination, last worn clothes of Muhammad Aamar Irshad-deceased, Pajama (P-1), Nikkar (P-2) and shirt (P-3), all bloodstained were produced by Pervaiz Akhter, Constable (PW-4) before the Investigating Officer, which he took into possession vide memo Exh.PE.
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, Aurangzaib, Draftsman (PW-2) prepared scaled site plan of the place of occurrence Exh.PD and Exh.PD/1 which were handed over by PW-2 to the Investigating Officer on 26.08.2006.
6. Thereafter infestation was entrusted to Muhammad Yaqub, A.S.I (PW-13) who arrested the accused Sarfraz alias Kaloo and Abaidullah on 30.09.2006.
7. Having found the accused persons guilty, the Investigating Officer prepared report under Section 173 Cr.P.C. And sent the same to the Court of Session enrouted through the learned Illaqa Magistrate as provided under Section 190(2), Cr.P.C. On 15.02.2007, the learned Additional Sessions Judge, Faisalabad formally charge sheeted the appellant to which he pleaded not guilty and claimed trial. The prosecution in order to prove its version, produced as many as fourteen (14) witnesses. Muhammad Riaz (PW-9) is the complainant of the case, whereas, prosecution version of ocular account was substantiated through the statement of Anwaar Elahi (PW-10). On presentation of complaint, Muhammad Aslam Gill, A.S.I. (PW5) had chalked out formal FIR. Aurangzaib, Draftsman (PW2) had prepared scaled site plan of the place of occurrence, whereas, investigation in this case was conducted by PW-11 and PW-16 namely Hassan Muhammad, Inspector and Muhammad Yaqub, A.S.I., respectively.
8. Dr. Muhammad Farooq (PW-6) on 21.08.2006 conducted the Medico-legal Examination of injured-Muhammad Aamar Irshad and prepared Medico-legal Certificate Exh.PG.
9. Dr. Bashir Ahmad (PW-1) on 21.08.2006 at 03:00 p.m. (day) had conducted post examination upon the dead body of Muhammad Aamar Irshad and observed following injuries on his person: 'INJURIES.
1-A A firearm wound of entry 1/2 x 1/2 cm circular in shape with inverted margins, surrounded by collar of abrasion, on front of left side abdomen, 05 cm away from midline and 10 cm above and outwards from umbilicus. Corresponding hole present on T-shirt. The metallic projectile entered the front of left abdomen, through the wall, perforated the peritoneum, intestines, mesentery, mesenteric vessels, traversed to the opposite side ruptured the right renal vessels, bruised the kidney and made exit on the back of abdomen as injury No,1-B.
1-B A firearm wound of exit 1/2 x 1/2 cm with everted margins on the back of right lower abdomen (lumber area) at a distance of 6 cm away from vertebral line and 7 cm above the level of post iliac crest. Corresponding hole present on T- shirt.
2-A A firearm wound of entry 1/2 x 1/2 cm circular in shape with inverted margins, surrounded by collar of abrasion on the tack of left hand at the level of 2 cm above the 4th metacarpal pharyngeal joint. The underlying 4th metacarpal bone was fractured.
2-B A firearm wound of exit 1 x 3/4 cm with everted margins on the outer side of left hand on the palmer aspect near the web space of thumb and index finger with a grazing wound 1/2 x 1/2 cm on inner side of left thumb.
3. An incised wound 3 x 1-1/2 cm with clean cut margins, cutting the skin and siphons vein of inner side of right lower leg, 3 cm above the right ankle.
' After conducting the postmortem examination, the doctor rendered the following opinion:-- OPINION. "the death in this case occurred due to haemorrhage and shock resulting from injury No,1 (A + B), inflicted by firearm, which is ante-mortem and sufficient to cause death in ordinary course of nature. Probable time that elapsed between injury and death was 1-2 hours, whereas between death and post-mortem was 13 hours. "
10. Learned Deputy District Public Prosecutor gave up PWs-Jamil Sher, Nisar Ahmed and Mian Muhammad Saleem on 11.04.2007, whereas Sajjad Ali, Inspector was given up on 21.04.2007, being unnecessary. After tendering in evidence, the report of Chemical Examiner (Exh.PL) and report of Serologist (Exh.PL/1), learned Deputy District Public Prosecutor closed the prosecution evidence on 26.04.2007.
11. The accused-appellant 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 as to why this case against him and why the PWs have deposed against him, the accused-appellant made following deposition:-- "My co-accused Sarfraz alias Kaloo in my presence made a detailed reply qua this question and I rely upon the same. "
12. 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 version proved beyond shadow of reasonable doubt against the accused-appellant, resulting into his conviction in the afore- stated terms.
13. I have carefully considered the submissions made on behalf of the learned counsel for the appellant as well as learned Deputy Prosecutor General and have gone through the record.
14. On perusal of FIR (Exh.PF/1), it reveals that the same was lodged at 2:55 a.m. (night) and post- mortem examination was conducted by Dr. Bashir Ahmed (PW-1) on 21.08.2006 at 3:00 p.m. With delay of thirteen (13) hours. If FIR was lodged within 45 minutes, then delay in conducting the postmortem examination was not explained by the prosecution. This leads to the conclusion that the FIR was recorded with a delay and same cannot be used against the appellant as a corroborative piece of evidence.
15. According to the prosecution, the incident took place at 12:15 a.m. (night) on 20.08.2006 and injured-Aamar Irshad was shifted by the prosecution witnesses to the Allied Hospital, Faisalabad at 12:30/12:45 a.m. (night), where in emergency-ward, the injured succumbed to the injuries at 2:00 a.m. (night), while the matter was reported to the police on the same night at 2:50 a.m. At "Chowk Bolay Dee Juggi", although inter-se distance between the place of occurrence and the police station is only 3-kilometers. Muhammad Riaz (PW-9) during cross-examination deposed that "the application (Exh.PF) was written at the hospital, then I proceeded towards the police station on a car and met the police at Bolay Dee Juggi. I do not remember the name of scriber of the Exh.PF.
When I met the police and presented the application Exh.PF, my brother Anwaar Elahi-PW was with me. " Whereas Anwaar Elahi deposed during cross-examination that "I do not know who wrote Exh.PF at the hospital. Riaz complainant presented Exh.PF to the police at Bolay Dee Juggi. At that time we were on motorcycle." The scribe of the complaint (Exh.PF) is not known even to the complainant. The deposition of the complainant (PW-9), proves nothing substantial except that he signed the information, (Exh.PF), on receipt whereof, the FIR was registered.
16. The next part of the evidence of PW-9, Muhammad Riaz and PW-10, Anwaar Elahi shows that they all shifted Aamar Irshad in injured condition to the Allied Hospital, Faisalabad, which was belied by Dr. Muhammad Farooq (PW-6), as according to him, the deceased was shifted to the hospital in injured condition by Aatiq Ali son of Riaz Ali, the Chachazad of Aamar Irshad on 21.08.2006 at 1:10 a.m. This fact also gets support from the Medicolegal Certificate Exh.PG. This fact creates doubt in the prosecution case. At one stage, these witnesses also deposed that "It is incorrect to suggest that Aatiq took Aamar Irshad to the hospital in injured condition. Volunteered no such persons were present at the time of occurrence except us. " Therefore, I do not think it safe to rely on the evidence of these eyewitnesses i.e, Muhammad Riaz (PW-9) and Anwaar Elahi (PW- 10). It is also admitted fact that the Investigating Officer, Muhammad Yaqoob, A.S.I. (PW-13) found the appellant empty handed. This also creates doubt about the genuineness of the version given by the complainant (PW-9) and Anwaar Elahi (PW-10).
17. It is also the case of the prosecution that when the complainant-Muhammad Riaz (PW-9), Anwaar Elahi (PW-10) and Jamil Sher (given up PW) while talking with Aamar Irshad reached Pulli of Ghousia School, suddenly Imran accused (proclaimed offender) armed with pistol, Abaid Ullah (the appellant) armed with pistol and Sarfraz alias Kaloo emerged there. Sarfraz raised a lalkara, Imran made first fire which was missed. Thereafter all the accused reached near them. Abaid Ullah made a fire shot which landed upon the left hand of Aamar Irshad. The fire shot made by Imran landed at the left side of the chest near the heart of Aamar Irshad upon which, Aamar Irshad fell down and the accused fled away while raising lalkara. The sequence of events, mentioned above clearly demonstrates that the witnesses and deceased were together, whereas the position shown in the site plan negates the version of the prosecution. During cross-examination, Muhammad Riaz (PW- 9) deposed that "Aamar deceased was at a distance of 20-feet from us at the time and place of occurrence". Anwaar Elahi (PW-10) deposed during cross-examination that "Aamar Irshad was at a distance of 15/20 feet from us when the occurrence took place. I do not remember if Riaz and Jamil Sher PWs were ahead or behind of me or not". I do not find any special reasons for the witnesses to remain at back when they specifically stated that they went with Aamar to leave him at Ghausia Pulli. No special reason whatsoever has been given by the prosecution to establish this un-natural conduct. It is rather un-natural for the person to remain at back and let their guest go ahead.
18. All the prosecution witnesses in their account have mentioned that Imran-accused used to extend the threats as deceased-Aamar Irshad expelled Imran from service. The witnesses have not attributed any motive to the appellant to commit the alleged offence. Thus, I am of the view that motive of the offence cannot in the facts and circumstances of the case be attributed to the appellant and same cannot be used against the appellant.
19. From the facts and circumstances narrated above, I am persuaded to hold that the prosecution had not been able to prove its case against the accused beyond shadow of doubt as there were many dents in the prosecution story. In the present case, the possibility of the occurrence being not witnessed by both prosecution witnesses cannot be ruled out, as such the conviction and sentence recorded by the learned trial court cannot be sustained. Reliance has been placed on the case reported as "Muhammad Akram v. The State" (2009 SCM R 230) wherein the Hon'ble Supreme Court of Pakistan had held that even single circumstance creating reasonable doubts in a prudent mind about the guilt of the accused makes him entitled to the benefit, not as a matter of grace and concession but as a matter of right.
20. In view of what has been noticed and discussed above, Criminal Appeal No,799 of 2007 is accepted. Conviction and sentence awarded to the appellant is set aside while extending benefit of doubt to Abaid ullah- appellant and he is acquitted of the charge. He is on bail, so his sureties are discharged.