RAJA SHAHID MEHMOOD ABBASI, J.---This Criminal Appeal is directed against the judgment dated 20-06-2013, passed by the learned Sessions Judge, Rawalpindi, whereby Abid Hussain appellant/accused was convicted under section 302(b), P.P.C. And sentenced to life imprisonment, in addition to compensation of Rs. 1,00,000/- under section 544-A, Cr.P.C. To the legal heirs of deceased or in default thereof, to further undergo six months R.I. Benefit of Section 382-B, Cr.P.C.
Was also extended in favour of the appellant. Whereas the learned Sessions Judge, Rawalpindi, acquitted co-accused of the appellant namely Ashfaq Ahmad Bhatti and Bedar Bakht while extending them benefit of doubt.
2. The prosecution case as unfolded in the FIR (Ex.PB/1), registered on the statement of complainant, Hassan Akhtar, (PW-7) are that on 22-06-2012, his father Muhammad Asif (hereinafter, referred as the deceased) went to Doberran Bazar and when he was returning to his house and deboarded at Pulli(bridge) stop, from a Suzuki at 4.30 pm and the Suzuki proceeded ahead. The complainant, his paternal uncle Mukthar Ali and Muhammad Ashfaq (PW-8) were present near the Pulli stop, under a tree and cattles were grazing. Meanwhile, from the other side of the Pulli, appellant/accused Abid Hussain while armed with 12 bore gun along with his co-accused namely Muhammad Ashfaq and Bedar Bakht came there. Accused Ashfaq and Bedar Bakht raised Lalkara that Muhammad Asif be taught a lesson for the murder of Abid Hussain, appellant gave three fire shots which landed on different parts of the body of deceased, who succumbed to the injuries at the spot. The motive behind the occurrence was a previous murder. Hence, the FIR.
3. In order to prove this case the prosecution has examined as many as nine witnesses to bring home the guilt of accused. Hassan Akhtar (PW-7) and Muhammad Ashfaq (PW-8) furnished.
Ocular account of the incident.
4. The investigation was conducted by Muhammad Khan SI/I.O. (PW-9). He deposed that he was posted at Police Station Kallar Syedan, District Rawalpindi; he along with other police officials after receiving the information about the occurrence went to the place of occurrence where he recorded the statement of complainant Ex.PB. He prepared the application for postmortem examination Ex.D/2, inquest report Ex.PC and handed over the same along with dead body of Muhammad Asif deceased to Ahmad Sher, constable (PW-5) for postmortem examination. He forwarded the complaint to police station through Umar Razzaq constable for registration of the case. During the spot inspection, Investigating Officer, besides taking other investigating steps, took into possession blood stained earth vide memo Ex.PJ; collected crime empties P-4/1-2 vide recovery memo Ex.PH; he also inspected the place of occurrence and prepared rough site plan Ex.PL. He interrogated nine persons at the place of occurrence. Ahmad Sher, constable (PW-5) handed over the last worn clothes of the deceased Shalwar P-1, Kamez P-2, vest P-3 and postmortem report, which he took into possession vide recovery memo Ex.PF; the dead body was handed over to the legal heirs of the deceased after preparing the receipt Ex.PG. On 26-07-2012, Abid Hussain appellant/accused was arrested. On 27-07-2012, he obtained his physical remand.
On 29-07-2012, during interrogation, appellant/accused Abid Hussain got recovery carbine P.5 from an iron box which was placed in the store of his house, which he took into possession vide recovery memo Ex.PD and registered a separate case FIR under section 13 of Arms Ordinance, 1965 against Abid Hussain, appellant/accused. He prepared rough site plan of the place of recovery Ex.PK/1. On the same day, the accused Bedar Bakht and Muhammad Ashfaq, after getting pre- arrest bail joined them in the investigation. On 09-08-2012, Halqa Patwri handed over him the scaled site plans Ex.PA and Ex.PA/1. The red notes on it were in his hand writing. He recorded the statements of the witnesses under Section 161, Cr.P.C. From time to time. Thereafter, he prepared the report under Section 173, Cr.P.C. Through S.H.O. By placing co-accused Bedar Bakht and Muhammad Ashfaq in column No.2 whereas Abid Hussain appellant/accused was placed in column No.2 and submitted the same in the Court.
5. Autopsy was conducted at 8.30 p.m. On 22-06-2012 on the dead body of the deceased by Medical Officer Dr. Rooh Ullah (PW-4), who observed following injuries on the body of the deceased:--
1. A lacerated wound of 5 x 3 cm with inverted irregular margins, burning also present on right side of vault of skull (wound of entry).
2. A lacerated would of 5 x 4 cm with inverted irregular margins on right parietooccipital junction, burning also present. (wound of entry)
3. A lacerated wound of 2.5 x 2 cm on occipital region, burning present, edges inverted and rounded (wound of entry).
' 14 x 9 cm lacerated wound on outer aspect of right elbow, edges inverted and irregular, humerous broken into four pieces (lower end) upper ends of radius and ulna also broken into eight pieces, burning was also there (wound entry).
5. Multiple superficial lacerated wounds (total 27 in number) of small pallets, ranging from 0.3 to 1.1 cm over frontal area of chest and abdomen (small pellets also recovered from some of them).
6. Three lacerated wound similar to the injury No.5 on front of right thigh.
7. Four lacerated wound similar to injury No.5 on front and inner aspect of left leg.
8. A lacerated wound of 4 x 0.5 cm on right side of chest corresponding to injury No.4.
' According to the opinion of the Medical Officer cause of death was due to hemorrhage, shock and pellets causing injuries Nos.1, 2 and 3 damaged the brain matter and its major blood vessels.
Probable time that elapsed between death and postmortem was 6 to 7 hours. Probable time between injury and death is immediate. The postmortem report is Ex. PD.
6. The appellant Abid Hussain was examined under Section 342 Cr.P.C. Who on question as to why this case was registered against him, replied as under:- "The occurrence was witnessed. Neither Hassan Akhtar, Muhammad Ishfaq nor Mukhtar were present at the spot. The PWs have deposed because of relationship with the deceased and enmity with us and out of false suspicion"
The accused neither opted to appear of his own witness under section 340(2), Cr.P.C. Nor produced defence evidence in his favour. The Public Prosecutor closed the prosecution evidence.
7. The learned trial Court having heard the learned counsel for the parties passed the above said conviction and sentences, which is being impugned herein.
8. Learned Additional Prosecutor General Punjab on behalf of the State vehemently argued that the occurrence took place on 22-06-2012 which was promptly reported to the police and there is no question of due deliberation. The witnesses, who furnished ocular account are inmates of the vicinity and their presence at the place of occurrence is natural and can safely be relied upon.
Contended that heinous offence is committed by the appellant and he deserves no leniency as he committed murder of an innocent person. There is no mala fide on the part of the complainant to involve the appellant in such a heinous offence. Learned DPG also relied upon the report of Forensic Science Laboratory Ex. PP. It is submitted that accused facing the trial could not furnish any plausible defence and he neither alleged any enmity nor mala fide on the part of complainant for his malicious prosecution. Argued that the prosecution has fully proved this case beyond doubt, therefore, the impugned judgment may be maintained.
9. Learned counsel appearing on behalf of appellants argued that prosecution could not bring home the guilt of the accused/appellants beyond any shadow of doubt; the ocular account furnished by the prosecution is not reliable as prosecution witnesses were interested, inimical and closely related inter se as well as to the deceased; the statements of prosecution witnesses are inconsistent on salient features of the case and full of contradictions and prayed for acquittal of the accused.
10. I have heard the arguments of the learned counsel for the parties and perused the record.
11. It is worthwhile noticeable that complainant Hassan Akhtar, real son of the deceased was at the distance of about 60 feet (23 steps) from where the appellant received three fire shots of 12 bore gun. It is prosecution case that it was rather carbine instead of 12 bore gun after the first shot why witnesses did not rescue the deceased during the reloading of the carbine. Moreover, why witnesses were left alive by the appellant despite their hue and cry especially when they were empty handed. Having minutely perused the entire evidence with the able assistance of the learned counsel for parties, I am not persuaded by the story set up by the prosecution against the appellant as I find that eye-witnesses failed to establish their presence at the place of occurrence at the relevant time. The previous heart burning between the appellant and the accused as set out by complainant Hussain Akhtar appeared as (PW-7) and during cross examination (PW-7) admitted that his deceased father had murdered Zulfiqar son of the appellant, however, he also admitted that his father was released from jail almost four years back prior to the present occurrence on compromise basis. He further admitted that appellant had forgiven his father (deceased)' in the murder case of Zulfiqar after receiving Diyat. The previous heart burning stood forgotten by the parties in view of the patch up, hence, motive set out by the complainant without any independent corroboration does not appeal to the prudent mind. (PW-7) Hussain Akhtar, the real son of Asif deceased, PW Mukhtar (chacha) of complainant and (PW-8) Muhammad Ashfaq, cousin of the complainant were present near the Pulli stop under a tree, grazing their cattle at about 4.30 pm on 22-06-2012 where deceased keyboarded from a Suzuki and from the other side of the Pulli, appellant armed with 12 bore gun and acquitted co-accused came there, raised Lalkara and appellant gave there successive fire shots with his 12 bore gun towards deceased Muhammad Asif landed, on his head right arm, chest and abdomen, who fell down and succumbed to the injuries.
12. From the perusal of the evidence, it came on the record that three fire shots were attributed to the appellant but during spot inspection only two crime empties were collected by (PW-9)
Muhammad Khan, S.I. Deposition of the witnesses of the ocular account are not lending support from the medical account furnished by Dr. Rooh Ullah (PW-4), who noticed as many as eight injuries including injuries sustained by the deceased Asif on left leg and right thigh. It is also relevant to mention that Dr. Rooh Ullah (DW-4) observed having injuries Nos.1 to 4 but both the eyewitnesses failed to explain said injuries during their deposition.
13. Moreover, version of the prosecution is that eye-witnesses were grazing cattle near the place of occurrence but (PW-2) Zafar Iqbal, who visited place of occurrence on the direction of police and took rough notes on the plantation of complainant and eye-witnesses during cross examination stated that he has not shown any point where cattle were grazing. He stated that at the place of occurrence there was no fodder and soil was of hard surface. In this view of the matter, the explanation given by the eye-witnesses for their presence at the place of occurrence caused serious doubts to the veracity of the eyewitnesses and same is not appealable to the prudent mind.
14. Another aspect of the case is that defence during cross-examination brought on record Ex.DA, the statement of (PW-7) Hussain Akhtar complainant in which he admitted his signatures although he denied that he mentioned in Ex.DA that deceased fired shots from carbine and two other acquitted accused were armed with pistols but on Ex.DA situation was observed otherwise during confrontation the fact of making supplementary statement at belated stage and to bring evidence in line with medical evidence clearly led to the conclusion that eye-witnesses were not present at the place of occurrence at the relevant time.
15. It is also notable that PW.9 Muhammad Khan Inspector after arrest of appellant collected corroborative piece of evidence i.e. Recovery of weapon of offence procured physical remand to effect recovery of 12 bore but subsequently in application for physical remand he substituted 12 bore gun with carbine and same was recovered as per prosecution evidence vide recovery memo Ex.PK attested by PW.8 Muhammad Ishfaq. It is strange that PW.7 Hussain Akhtar and PW.8 Muhammad Ishfaq categorically mentioned 12 bore gun, as the weapon of offence then how Investigating Officer substituted the same. It is also observed that PW.8 recovery witness is also the eye-witness of the occurrence but during his cross-examination he stated that he has seen (12 bore gun) at the time of recovery.
16. In the light of afore mentioned discussion, I am of the view that eyewitnesses of the occurrence PW.7 Hussain Akhtar and PW.8 Muhammad Ishfaq had failed to establish their presence at the scene of occurrence and previous enmity between the parties, if any, made basis for the motive had been admittedly patched up. Statement of both the eye-witnesses was contradicted with the medical account which made their testimonies highly improbable, doubt able and not confidence inspiring. Medical evidence had not fully corroborated the ocular testimony. Eyewitnesses neither seen the occurrence nor they had any purpose to be present there. Involvement of accused/appellant in present case was skeptical and allegation against him qua the murder of the deceased was speculative. Ocular account brushed aside being false discrepant and un- reliable. Evidence of recovery of 12 bore carbine at the instance of appellant and positive report of Forensic Science Laboratory hinting at matching of crime empties with the said carbine is inconsequential when prosecution case against the appellant otherwise stood disproved.
17. The upshot of above discussion is that in view of the defects and infirmities discussed above, the prosecution has miserably failed to prove its case against the appellant beyond any reasonable doubt; hence, Criminal Appeal No.62-J of 2013 is accepted. Conviction and sentence of appellant is set aside and he is acquitted from all charges by giving him benefit of doubt. Appellant be set at liberty forthwith if not to be detained in any other case.