SADAQAT ALI KHAN, J.---This single judgment shall dispose of Criminal Appeal No. 301 of 2013 filed by Allah Ditta, Ghulam Yasin, Rasheed Ahmed, Ghulam Haider and Saghir Ahmed present appellants and Murder Reference No. 34 of 2013 sent by the Trial Court for con'firmation of the death sentence of Allah Ditta appellant or otherwise as both matters have arisen out of the same judgment dated 28.06.2013 passed by learned Additional Sessions Judge, Liaqualpur according to which the present appellants were convicted and sentenced as under:--- Allah Ditta was convicted under section 302(b) and sentenced to Death for committing Qatl-i- Amd of Mst. Kalsoom deceased along with payment of compensation Rs. 5,00,000/- to the legal heirs of the deceased under section 544-A, Cr.P.C. and in default thereof six months' S.I. He was also convicted under section 148/149, PPC and sentenced to 02 years' R.I.
Ghulam Yasin was convicted under section 302(b), PPC and sentenced to life imprisonment for committing Qatl-i-Amd of Mst. Kalsoom deceased along with payment of compensation Rs.
2,00,000/-to the legal heirs of the deceased under section 544 A, Cr.P.C. and in default thereof six months' S.I. He was also convicted under section 148/149. PPC and sentenced to 02 years' R.I.
Rasheed Ahmed was convicted under section 302(b), PPC and sentenced to life imprisonment for committing Qatl-i-Amd of Mst. Kalsoom deceased alongwith payment of compensation Rs.
2,00,000/-to the legal heirs of the deceased under section 544 A, Cr.P.C. and in default thereof six months' S.I. He was also convicted under section 148/ 149, PPC. and sentenced to 02 years' R.I.
Ghulam Haider was convicted under section 302(b), PPC and sentenced to life imprisonment for committing Qatl-i-Amd of Mst. Kalsoom deceased along with payment of compensation Rs.
2,00,000/-to the legal heirs of the deceased under section 544 A, Cr.P.C. and in default thereof six months' S.I. He was also convicted under section 148/ 149,'PPC and sentenced to 02 years' R.I.
Saghir Ahmed was convicted under section 302(b) and sentenced to life imprisonment for committing Qatl-i-Amd of Mst. Kalsoom deceased alongwith payment of compensation Rs.
2,00,000/- to the legal heirs of the deceased under section 544-A, Cr.P.C. and in default thereof six months' S.I. He was also convicted under section 148/149, PPC and sentenced to 02 years' R.I.
All the sentences awarded to the appellants were ordered to run concurrently. Benefit of section 382-B, Cr.P.C. was also extended to the present appellants in private complaint Ex.PJ under sections 302, 148/149, PPC arising out of case FIR No. 52, dated 29.01.2011 under sections 302, 148/149, PPC police station Tranda Muhammad Pannah, Tehsil Liaquatpur.
2. The brief facts as narrated by Manzoor Ahmed complainant PW-4 in his private complaint Ex.PJ arising out of FIR No. 52, dated 29.01.2011 (Ex.PA) are the same as narrated by him in his statement before the learned Trial Court, so the statement of Manzoor Ahmed PW-4 is hereby 'reproduced for narration of the facts:--- "On 29.01.2011 it was about 06:00 a.m. my son Fida Hussain was going on a motorcycle towards Thul Hamza along with his wife Teyyaba Noor and his sister Mst. Kalsoom (deceased) with two minor sons Shahzeb & Orangzeb. I along with Abdul Sattar PW followed them on a separate motorcycle. When they reached at the Dera of Haji Mukhtar Ahmad within the territorial limits of Mauza Ghafoorabad, accused persons Allah Ditta armed with repeater, Ghulam Yasin armed with repeater gun, Rasheed Ahmad armedwith pistol came there on a motorcycle, while other accused persons Ghulam Haider armed with gun 12 bore, Saghir Ahmed armed with pistol 30 bore & Dilbar armed with rifle (P.0) came there on a separate motorcycle, all accused present in Court on bail facing the trial of this case. They stopped Fida Hussain PW and stated that he had committed the murder of their family female yesterday. Allah Ditta accused made a fire shot to Fida Hussain, who luckily escaped and said fire hit to Mst. Kalsoom on her face. Accused Ghulam Yasin made second fire, which hit to Mst. Kalsoom Bibi on her right hand. We tried to apprehend the accused persons but they fled away. Said Kalsoom Bibi succumbed to the injuries at the spot.
My statement regarding the above-said occurrence was recorded by the Police which is Exh.PB. I thumb-marked the same as a token of its correctness. On the basis of my statement Exh.PBFIR Exh..PA was registered at the Police Station, T.M. Panah tut ,police in connivance with the accused party declared them innocent. Thereafter I filed this private complaint Exh.PJ. Same was written by my Advocate on my instruction and read over to me by my Advocate. I thumb-marked the same as a token of correctness".
After filing of the private complaint Ex.PJ, learned Trial Court recorded the cursory statements of the prosecution witnesses and after considering the documents so produced by the complainant,summoned present appellants to face the trial.
After appearance of the present appellant, learned Trial Court after observing legal formalities provided under the Criminal Procedure Code framed the charge on 07.01.2012 against present appellants Allah Ditta, Ghulam Yasin, Rasheed Ahmed, Ghulam Haider and Saghir ,Ahmed under sections 302/148/149, PPC to which they pleaded not guilty and prosecution evidence was summoned.
Prosecution produced Nazeer Ahmad, ASI PW-1, Arshad Ali, SI PW-2, Abdul Sattar PW-3, Manzoor Ahmed PW-4 and Doctor Samina Kausar WMO PW-5 whereas PW Azmat Ali, SI was given up by- - . the prosecution being unnecessary and tendered in evidence FIR Ex.PA, statement of Manzoor Ahmed Ex.PB, site-plan of dead-body Ex.PC, inquest report Ex.PD, memo. of possession of blood- stained earth Ex.PE, recovery memo. of motorcycle Ex.PF, recovery memo. of last worn clothes of the deceased Ex.PH, postmortem report Ex.PK and closed the prosecution evidence.
Medical evidence was furnished by Lady Doctor Samina Kausar, WMO (PW-5) who stated that on 29.1.2011, she conducted post-m,ortem examination on the dead-body of Mst. Kalsoom deceased and observed as under:--- EXTERNAL APPEARANCE.
It was a dead-body of a female lying on the black colour "Kameez", black mixed colour phuldar Shalwar, other shalwar of sky blue colour underneath and a black colour brassiere and white colour Dupatta. Dust and clotted blood was present on the face, Dopatta, Kameez & Shalwar. No ligature mark was present on the neck. Eyes and mouth were semi-opened. Rigor Mortis was present all over the body.
NOTE:- When her brassier was removed from the body, a single alive (unfired) bullet was recovered from the brassier, the bullet was engraved (marked) of the back a SAP alongwith other illegible words.
INJURIES:- A lacerated wound 6 cm x 4 cm opening into the mouth cavity, situated on right cheek. Tattooing was present around the margins of wound, clotted blood was present in and around the wound, on exploration all bony structures at the site of wound were fractured and tongue, tonsils and soft palate was injured. One WAD and multiple pallets were recovered. X-Rays were taken which shows multiple pallets in the wound and oral cavity (vide X-Ray Nos. 12 & 13 dated 29.1.2011) therefore, the injury No. 1 was wound of entry.
2. A lacerated wound 3 cm x 2 cm muscle deep present on the medial side of right hand.
Tatooing was present -around the wound & margins clotted blood was present.
NOTE:- X-Ray for injury No. 2 taken vide X-Ray No. 14 dated 29.1.2011. No bony lesion was seen.
CARNIUM & SPINAL CORD. All were normal. THOREX.
Heart was empty and healthy. All the remaining visceras were normal.
ABDOMEN:- Oral cavity was injured, teeth fractured, esophagus was injured. Stornakh empty, small intestine contained little chime, large intestine healthy and contained faces, bladder empty. All the remaining viscera were normal in condition.
MUSCLES, BONES, JOINTS:- All healthy except as mentioned in column Nos. 1 Sz. IV-3 of report.
REMARKS/OPINION:-- After careful external & internal examination of the dead-body, I was of the opinion that death was occurred due to hemorrhage & shock caused by injury No. 1 which was caused by fire-arm.
The said injury was anti-mortem and was sufficient to cause death in ordinary course of nature.
The probable time between the injury and death was 1 to 5 minutes, whereas between the death and post-mortem, it was about within 7-9 hours".
7. On the other hand, statements of present appellants were recorded under section 342, Cr.P.C. who refuted the allegations so levelled against them and all the present appellants have opted to appear as a witness under section 340(2), Cr.P.C. but thereafter they did not appear and produced in defence the documentary evidence i.e. copies of Challan under section 173, Cr.P.C. in case FIR No. 26/11 of P.S. Seetpur Ex.DB, Ex.DC and Ex.DE, copy of order sheet Ex.DF, copy of complaint titled Rafique Ahmed v. Fayyaz Hussain, etc. Ex.DG, copy of summoning of accused and in reply to questions No. 8 & 9 "why this case against you and why the PWS deposed against you?" all the appellants replied 'as under:-- "The complainant and his witnesses are inter SE related and are related to the deceased also. In conspiracy with each other, they have falsely involved me in this case.
Prior to the instant occurrence, we got registered a criminal case vide FIR No. 26/11 under section 302/324/148/149, PPC at police station Seetpur against the son of complainant namely Fida Hussain and others on 18.1.2011. Complainant falsely involved us in this private complaint.
On the complaint of complainant, FIR No. 52/11 under section 3027148/149, PPC was registered against us at police station T.M. Panah but during the investigation of said case, police cancelled the said case being false one. We are innocent and have falsely been involved in this case private complaint by the complainant in order to avoid the legal consequences of case FIR No. 26/11 under section 302/324/148/149, PPC registered at police station Purse. The said case is still pending adjudication before the competent Court of jurisdiction."
8. After conclusion of the trial, learned Trial Court convicted the present appellants with above- stated sentences through judgment dated 28.6.2013. Hence this appeal.
9. Learned counsel for the appellants contended that:--
(i) the judgment of the Trial Court dated 28.6.2013 is against law and facts on the file and is liable to be set aside. that the prosecution has failed to prove its case against the present appellants as there are many major discrepancies in the statements of the PWs further there is conflict between ocular evidence and medical evidence and the learned Trial Court has convicted the appellants on the basis of surmises and conjectures; it is contended that the impugned judgment of the Trial Court A not maintainable in the eyes-of law; lastly submitted that appeal may be accepted and the judgment of the Trial Court dated 28.6.2013 may kindly be set aside and appellants may be acquitted.
10. On the other hand, learned DPG assisted by the learned counsel for the complainant has vehemently opposed the appeal and requested for dismissal of the same and submitted that:---
(i) prosecution has proved its case beyond any shadow of doubt against the appellants with solid evidence and prayed for the dismissal of the present appeal. 11.We have heard the learned counsel for the parties and perused the record.
12.The detail of prosecution case as mentioned in private complaint Ex.PJ filed by Manzoor Ahmed complainant PW-4 has already been given in paragraph No. 2 of this judgment, therefore, there is no need to repeat the same.
13.According to FIR Ex.PA occurrence took place on 29.1.2011 at about 06:00 a.m. whereas FIR was registered on the same day on 09:00 a.m. on the statement Ex.PB of Manzoor Ahmed complainant PW-4 real father of Mst. Kalsoom deceased. The distance between the place of occurrence (village Ghafoor abad and police station Taranda Muhammad Panah is 16-Km and Manzoor Ahmed PW-4 made a statement Ex.PB to Arshad Ali, III.O. of this case PW-2 at about 08:00 a.m. at the place of occurrence.
14-15'. We have perused the statement/complaint Ex.PB made by Manzoor Ahmed complainant PW-4 and found that nowhere it is mentioned that who had informed Arshad Ali, SI/I.O. of this case PW-2 regarding the occurrence rather simply stated that after receiving information, he reached at the spot. Complainant Manzoor Ahmed PW-4 deid not give any ,.explanation for the delay of about two hours in lodging the FIR which casts doubt in the prosecution story because in The facts and. circumstances of this particular case as they had happened, the delay has great significance which delay has purposely been maneuvered to name the accused later, such delay would adversely affect the prosecution. Reliance is placed on case Mehmood Ahmed and three others v.
The State and another (1995 SCM R 127).
16. We have also perused post-mortem report Ex.PK pertaining to Kalsoom Bibi deceased according to which postmortem examination was conducted on the dead-body at about 02:00 p.m. on 29.1.2011 by lady doctor Samina Kausar WMO PW-5 with unexplained delay of about eight hours from the occurrence i.e. 0600 a.m. on 29.1.2011 and such delay is generally suggestive of a real possibility that lime had been consumed by the police in procuring and planting eyewitnesses and in cooking up a story for the prosecution before preparing the police papers necessary for getting the postmortem examination of the dead-body conducted. Reliance is placed on case titled Irshad Ahmed v. The State (2014 SCMR 1190).
17. Admittedly, all the present appellants Allah Ditta, Ghulam Yasin, Rasheed Ahmed, Ghulam Haider and Saghir Ahmed 'ere found innocent during investigation conducted by Azmat Ali, SI CW-2 verified by Hayat Shah Jahan, Inspector CW-1 'and concerned ASP and nothing was recovered during the investigation from the present appellants and during the investigation, on 3.5.2011 Azmat Ali, SI/I.O. of this case CW-2 recorded the statements of Habib Ahmed and Sadiq Hussain under section 161, Cr.P.C. who had witnessed the occurrence and Fida Hussain real brother of Kalsoom deceased and Abdul Sattar PW-3 cousin of Fida Hussain (now both are POs) were made accused in the instant case and matter is still .pending in the Trial Court against them.
18. It is admitted fact that on 28.1.2011 FIR No. 26 was registered at police station Seetpur, Muzaffargarh on the statement of Rafique Ahmed real brother of Rasheed Ahmed ' one of the present appellants in which Bachal Mai real mother of Rasheed Ahmed one of the appellants was murdered and Mst. Nazeer Mai was injured at about 11:30 a.m. on the same day and accused were Fayyaz Hussain, Fida Hussain, Javed Ahmed, Ghulam Farid and Habib Ahmed (present complainant party) and following motive was given in the FIR by Rafique Ahmed complainant:--- {{URDU TEXT}} ' Further, present appellants had no Motive against Mst. Kalsoom Mai deceased and Manzoor Ahmed PW-4 complainant himself stated in the FIR Ex.PA as under:--- {{URDU TEXT}}
19. In view of the above, Fida Hussain did not receive any injury from the hands of the present appellants and present appellants despite being armed with fire-arm weapons did not make any fire upon Fida Hussain against whom they had motive for murdering Bachal Mai real mother of Rasheed Ahmed appellant, real sister of Ghulam Haider appellant and Khala of Saghir Ahmed appellant and injuring Mst. Nazir Mai' Bhabi' of Ghulam Haider appellant. This shows that prosecution has concocted a false story after deliberation and procurement of the complainant from his village i.e, Mouza Kachi Lal because if it was the act of thepresent appellants , they would not have spared Fida Hussain allegedly present at the spot according to the prosecution story and he would have been the first target of the present appellants. Even otherwise, prosecution story is improbable and is not believable.
20. Abdul Sattar PW-3 and Manzoor Ahmed PW-4 eye-witnesses stated that Allah Ditta appellant made fire upon Fida Hussain alleged witness (now proclaimed offender in the instant case) who had saved his life while sitting and said fire was hit to Mst. Kalsoom deceased on her face and Ghulam Yaseen made second fire which hit to Mst. Kalsoom deceased on her hand. In cross- examination, Manzoor Ahmed PW-4 stated that accused persons Yaseen and Allah Ditta made fire at a distance of 10/15 feet. Ex.PG is the rough site-plan prepared by Arshad Ali SI/I.O. of this case PW-2 and PW-2 stated in cross-examination that in Ex.PG that he had shown the presence of accused at a distance of 4 Karams away from the dead-body and he had prepared Ex.PG on the pointation of the complainant and the PWs whereas lady doctor Samina Kausar PW-5 while observing injuries on the person of Mst. Kalsoom deceased stated as under:--- "(1) A lacerated wound 6 cm x 4.,cm opening into the mouth cavity, situated on right cheek.
Tattooing was present around the margins of wound, clotted blood was present in and around the wound, on exploration all bony structures at the site of wound were fractured and tongue, tonsils and soft palate was injured. One WAD and multiple pallets were recovered. X-Rays were taken which shows -multiple pallets in the wound and oral cavity (vide X-Ray Nos. 12 & 13 dated 29.1.2011) therefore, the injury No, I was wound of entry.
(2) A lacerated wound 3 cm x 2 cm muscle deep present on the medial side of right hand.
Tattoing was present around the wound & margins dotted blood was present".
21.Further stated in cross-examination that injury No, 1 shows the distance of fire shot less than two yards but not less than one yard and injury No, 2 may be inflicted due to self-defence.
22.According to site-plan Ex.PG Mst. Kalsoom deceased was fired from a distance of 4 Karams (22 feet) but lady doctor Samina Kausar PW-5 observed tattooing around the margins of the wound and recovered one WAD and multiple pellets from the wound and none of the witnesses deposed that accused had caused injuries on the person of Kalsoom deceased from close range and tattooing marks on the injury could occurred when fire was made from a close range of less than three feet, so it is concluded that ocular evidence furnished by Abdul Sattar PW-3 and Manzoor Ahmed PW-4 was not corroborated by medical evidence furnished by lady doctor Samina Kausar PW-5 which has created a reasonable doubt in the prosecution evidence considering the conflict between ocular and medical evidence. Reliance is placed on case titled Muhamnzad Asghar alias Nannah and another v. The State (2010 SCM R 1706) in which Hon'ble Supreme Court of Pakistan has observed at page 1719 as under:--- "It is important to note that ocular evidence is in conflict with the medical evidence. According to the witnesses, when they were taking away the co-convict, the appellants came out form the Bus and started firing at them. The complainant has further stated that he saw the police party taking away the co-convict towards their car and then the other culprits de-boarded from the Bus and started firing at the police party. From the above evidence, it is clear that the firing was made from the bus and started firing at the police party. From the above evidence, it is clear that the firing was made from a distance but the Medical Officer found tattooing marks on the injuries of the deceased. The Medical Officer found six injuries, out of them three were entry wounds and three were exit wounds. All the three entry were entry wounds and three were exit wounds. All the three entry wounds were found 'to be with tattooing marks, therefore, such marks can occur when the fire-arm shot is fired from a close range of less than 3 ft. as per Modi's Medical - Jurisprudence. There is no evidence to show that firing was made from close range. Thus, on this aspect of the case the ocular testimony is not supported or corroborated by the medical evidence, which also creates a reasonable doubt in the prosecution evidence".
23. Further Manzoor Ahmed PW-4 is resident of Mouza Kachi Lal and not the resident of place of occurrence i.e, Mouza Ghafoor Abad and he was a chance witness and occurrence had taken place far-away from his house but he could not establish his presence at the time of occurrence.
He had stated in his statement Ex.DB that accused stopped Fida Hussain PW Which was confronted with Ex.DB his statement where it was not so recorded. He further stated that he had recorded in his cursory statement Ex.DB that accused persons stated that Fida Hussain committed the murder of their family female yesterday which was confronted with Ex.DB his statement where it was not so recorded. Abdul Sattar PW-3 stated in cross-examination that he had stated in his statement Ex.DA that accused party intercepted Fida Hussain which was confronted with Ex.DA where it was not so recorded. He further stated that they left Mouza Kachi Lal Tehsil Alipur at 05:30 a.m. (morning) and further stated that Fida Hussain PW (now accused in this case) is his cousin whereas Manzoor complainant PW-4 is his uncle (Khaloo). He further admitted that at 06:00 a.m. it was a dark time. He further admitted that he is accused in the instant case however, he stated that after obtaining illegal gratification from accused party police involved him in the instant case and further admitted that police submitted Challan in the instant case against him and Fida Hussain. He further admitted that Ghulam Haider appellant is brother of Bachal Mai who was deceased of FIR No, 26, dated 28.1.2011 stated above and said Bachal Mai deceased, was also (Phophi) of Allah Ditta and Ghulam Yasin present appellants and was real mother of Rasheed present appellant. She was `Khala' of Saghir Ahmed present appellant and likewise, Nazir Mai injured of above-stated FIR is Thabhi' of Ghulam Haider present appellant and Phophi' of Rasheed Ahmed appellant and further Nazir Mai is `Chachi' of Yasin and Allah Ditta present appellants and `Momanr of Saghir Ahmed present appellant.
24.In View of the above, evidence of Manzoor Ahmed PW-4 and Abdul Sattar PW-3 is not believable and same is hereby disbelieved.
25. It is concluded that case of the prosecution is not free from doubt and for giving the benefit of doubt it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled for the same not as a matter of grace and concession but as a matter of right. Reliance is placed on case titled Muhammad Akram v. The State (2009 SCM R 230) in which Hon'ble Supreme Court of Pakistan has observed at page 235 as under:--- "the nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCM R 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right".
26. From the facts and circumstances narrated above, we are persuaded to hold that prosecution has badly failed to bring home guilt of the appellants to the hilt and the learned Trial Court was not justified in convicting them while basing upon untrustworthy/uncorroborated evidence deposed by interested witnesses which even otherwise is full of material contradiction especially unreliable story deposed by Manzoor Ahmed complainant PW-4 and Abdul Sattar PW-
3. Resultantly, salutary principle of benefit of doubt is extended in favour of the appellants. The Criminal Appeal No, '301 of 2013 filed by Allah Ditta, Ghulam Yasin, Rasheed Ahmed, Ghulam Haider and Saghir Ahmed present appellants is accepted and convictions and sentences awarded by the learned Trial Court through judgment dated 28.6.2013 are set aside and they are ordered to be acquitted of the charge in private complaint Ex.PJ under sections 302, 148/149 of PPC arising out of case FIR No, 52, dated 29.1.2011 under sections 302, 148/149, PPC Police Station Tranda Muhammad Pannah, Tehsil Liaquatpur. Appellants Allah Ditta and Ghulam Yasin are directed to be released forthwith if not required in any other case whereas appellants Rasheed, Saghir Ahmed and Ghulam Haider are present on bail. Their sureties stand discharged. Murder Reference No, 34 of 2013 is answered in NEGATIVE and death sentence of Allah Ditta present appellant is NOT CONFIRMED.