' CH. MUSHTAQ AHMAD, J. -- We intend to dispose of above-captioned criminal appeal filed by appellant Ghulam Mustafa who was convicted by learned Additional Sessions Judge, Sahiwal in case F.I.R. No, 533, dated 14.12.2006 registered under Section 302, PPC at Police Station City Sahiwal vide impugned judgment dated 30.4.2011 and sentenced as under:-
(i) Death under Section 302(b), PPC as Tazir. He was also held liable to pay Rs, 2, 00,000/- as compensation to the legal heirs of both the deceased persons equally WS. 544-A, Cr.P.C. And in default whereof to undergo further simple imprisonment for six months. State through Murder Reference No, 93 of 2011 has sought confirmation of death sentence awarded to the appellant Ghulam Mustafa. So, both these matters are being decided through this single judgment.
2. F.I.R. (Exh.PH/1) was registered on the statement (Exh.PH) of Shaukat Ali, complainant (PW-8) alleging therein that on 14.12.2006 at 5.30 p.m. He alongwith his brother Khadim H'ussain (deceased), lrfan Faisal and Muhammad Saleem were returning back to home after buying some grocery items from City Sahiwal/when at 5.30 p.m. Reached near HBL Jinnah Chowk Branch all of a sudden Ghulam Mustafa whom they knew earlier armed with. .30 bore pistol came in front of them; he raised lalkara to complainant's brother Khadim Hussain that today he would teach him a lesson for pursuing case of his wife Mst. Robina Kausar for dissolution of marriage; he made three consecutive fire shots with his pistol which hit Khadim Hussain on his right temporal region neck and on right side of his back after sustaining injuries fell on the ground; they tried to catch hold of accused Ghulam Mustafa who extended threats to them that he would not spare them if they came forward and thereafter he decamped from the place of occurrence; injured Khadim Hussain was brought to hospital but he succumbed to the injuries on the way; complainant having Abdul Satter and Abdul Ghaffar to guard the dead-body proceeded to report the matter to police. He met lmdad Ali, S.I. (PW-11) who recorded his statement.
3. The I.O /PW-11 visited DHQ Hospital, Sahiwal and prepared injury statement (Exh.PB), inquest report (Exh.PC), handed-over dead-body to Bashir Ahmed, 417-C alongwith police papers for post- mortem examination. At the place of occurrence he prepared rough site-plan Exh.PL took into possession blood-stained earth vide recovery memo. Exh.PJ and also collected three crime empties of .30 bore pistol from the place of occurrence and took into possession vide recovery memo. Exh,PK. After post-mortem examination Bashir Ahmed, 417-C produced before him 'last worn clothes of deceased Jarsi (P1), Shirt (P2), Shalwar (P3), Vest (P4) which he took into possession vide recovery. Memo. Exh.PF. On 18.12.2006 Draftsman produced before him scaled site- plan Exh'.PE and Exh.PE/1 on which he added notes in red ink. On 19.12.2006 he arrested accused Ghulam Mustafa (appellant) and on 23.12.2006 recovered .30 tore pistol (P5) on his pointation which was taken into possession vide recovery memo. Exh.PG.
' PW-1 Dr. Mubasher Hussain Sherazi conducted autopsy on dead-body of Khadim Hussain on 15.12.2006 at .1,30 a.m. (night) and noted following injuries:--
(1) 1/2 c.m. x 1/2 c.m. Entry wound on right temporal region 3 c.m. Above right ear.
(2) 2 c.m. x c.m. Exit wound on left temporal region with an area of swelling 5 x 10 c.m.
(3) 1 c.m. x 1 c.m. Entry wound on right side and middle of neck.
(4) 2 c.m. x 21/2 c.m. Exit wound on left side of upper part of neck of 3 c.m. Below occipit.
(5) 112 c.m. x 1/2 c.m. Entry wound in 5th intercostal space on lateral part of right side of chest.
(6) Exit wound 1 c.m. x 1 c.m. With the area of swelling 5 c.m. x 5 c.m. Around the wound on the fourth intercostals space on the left side of chest.
' According to his opinion cause of death in this case was due to haemorrhage and injuries to vital organs. Injury No, 1 had injured the brain matter and minningies while injury No 3 had injured the neck vessel while injury No 5 had injured the lungs and heart and thus these all injuries had led to haemorrhage and shock and death in ordinary course of nature. The probable time that elapsed between injuries and death was five minutes whereas between death and post-mortem examination was 24 hours. Exh.PA is PMR duly signed by him.
4. After 'nation of investigation, report u/S. 173, Cr.P.C. Was prepared and submitted against the appellant.
5. Learned Trial Court after observing all pre-trial codal formalities, indicted the appellant to which he did not plead guilty and claimed trial. Thereafter, the prosecution was directed to lead evidence in order to substantiate the charge. The prosecution in order to prove its case produced eleven witnesses in all.
6. Learned ADPP renounced PW Wan Faisal being unnecessary. Thereafter, by tendering in evidence reports of Chemical Examiner Exh.PM, Serologist Exh.PN and the report of Forensic Science Laboratory Exh.PO closed the prosecution case on 29.3.2011.
7. Tence forth statement of the appellant was recorded u/S. 342, Cr.P.C. Wherein he denied the charge and claimed innocence. He neither opted to make statement on oath as permissible u/S. 340(2), Cr.P.C. Nor produced defence evidence.
8. On the conclusion of trial appellant was convicted and sentenced as mentioned supra. Hence, the instant appeal.
9. Learned counsel for the appellant contended that both the eye-witnesses were chance witnesses and their presence at the place of occurrence at the relevant time was highly doubtful; that as per version of prosecution occurrence took place in Bazar (City Sahiwal) but no person from public came forward to support prosecution version; that ocular account was also not in line with medical evidence and that report of FSL was in consequential for the reason that crime empties were sent to the office of FSL after arrest of the appellant indicating 'that recovery was manipulated and fabricated and that charge against the appellant was not proved by the prosecution beyond reasonable doubt.
10. Conversely learned Deputy Prosecutor General supported the impugned judgment contending that both the eye-witnesses explained their presence at the place of occurrence and the reasons why they were accompanying the deceased at the relevant time; that ocular account was corroborated by medical evidence and evidence of recovery of .30 bore pistol as well as report of FSL further corroborates the ocular account, hence, charge was proved against the appellant beyond reasonable doubt and he was rightly convicted by the Trial Court.
11. Heard. Record perused.
12. PW-8 Shaukat Ali, complainant and PW-10 Muhammad Saleem his first cousin furnished ocular account who stated that at the time of occurrence they were coming back from City Sahiwal after buying some grocery items and when they reached near HBL, Jinnah Chowk Branch suddenly appellant Ghulam Mustafa duly armed with .30 bore pistol came and after raising lalkara to Khadim Hussain, brother of the complainant made three consecutive fire shots which hit the deceased.
' In cross-examination PW-8 stated that place of occurrence was situated in a thickly populated area surrounded by shops, main branch of HBL was also near the place of occurrence. As per his statement all the shops were open at the time of occurrence. Further stated that traffic often blocked near the place of occurrence due to rush. According to him shop-keepers came at the spot. He further deposed that none of them was cited as witness in this case. He stated that deceased used to reside in Chak No, 8819-L whereas he was resident of 90/9-L which was 4-5, kilometer away from the place of occurrence. He admitted in cross-examination that PWs as well as deceased did not own any house, shop or business point near the place of occurrence. During cross-examination he further admitted that he did not produce blood-stained clothes to the 1.0.
Nor he produced blood-stained Rikshaw to the 1.0. In which Khadim Hussain was shifted to hospital.
PW-11 Imdad Ali, S.111.0. In cross-examination stated that PWs did not produce before him their blood-stained clothes or conveyance in which they boarded Khadim Hussain in injured condition.
Same was the statement of PW-10 Muhammad Saleem. As per contents of F.I.R., PWs came to City Sahiwal for buying some grocery items but in cross-examination PW-10 admitted that on that day they did not purchase anything. He stated that he did not record his:, statement to the police that after purchasing grocery items they were going back, however, ' when confronted with his statement Exh.DA it was found so recorded. In cross-examination PW-8 stated that they gave list of grocery items to the shopkeeper known as 'Butt Karyana Shop'. And within no time they left the shop of Butt Brothers as he wanted to get his eye sight checked from the doctor.
' From the statement of both the witnesses it is clear that incident took place in a bazar but none from the shopkeepers came forward to support the prosecution case. Both the eye-witnesses had no house, shop or business point near the place of occurrence and they had any reasonable cause to be present with the deceased. PW-10 in cross-examination stated that one person was appended by the shop-keepers at the spot and he was handed-over to police by those shop- keepers. Again said that accused left the place of occurrence while brandishing the pistol and it came to their knowledge that he was arrested on the following day of occurrence by the police.
This portion of statement of PW10 clearly indicates that it was not in his knowledge that killed the deceased on the day of occurrence. Had he been present at the relevant time he would have definitely name the appellant who according to the eye-witnesses was already known to them. As per statement of PW-10 deceased used to ply Rikshaw. As per his version he and the deceased used to reside in one house in Chak No, 88/9 L. He further stated that complainant PW-8 runs a private school as well as worked as Dispenser and used to reside in Chak No, 90/9-L and the distance between Chak No, 88/9-L and Chak No, 90/9-L was about one and half kilometer.
According to him in winter season he used to open his shop at about 8.00/9.00 a.m. And closed at 8.30/9.00 p.m. As per his version occurrence took place outside the shop of one Haji Nawaz Saber where accused (appellant) met them as per chance. Admittedly both the witnesses were not residing near place of occurrence. They have also not given any cogent reason to be present at the place of occurrence. Medical evidence also negates ocular account furnished by the eye- witnesses. None of the injuries was found on back side Of deceased as alleged in the F.I.R.
According to PW-1 post-mortem examination of deceased was conducted within 24 hours as soon as he received police papers. If the time between death and post-mortem is taken into consideration it is found incompatible with the time of occurrence as given' by the prosecution. So, this fact of the case further makes - the ocular testimony doubtful. The above discussion leads us to the conclusion that there are a number of circumstances that create doubt as to the veracity of testimony of prosecution witnesses whereas a single, instance' of this nature creating reasonable doubt is sufficient to record acquittal.
13. As regards recovery of crime empties from the spot and .30 bore pistol (P5) on the pointation of accused (appellant) it is worth noticing that crime empties were sent to FSL after arrest of the appellant, therefore, this piece of evidence in no way strengthen the prosecution case. Even otherwise when main stay of the prosecution (ocular account) is found untrustworthy and unreliable, evidence of recovery which is supporting in nature only would not advance the case of prosecution. On re-appraisal of evidence, we are of considered view that prosecution has failed to prove its case beyond reasonable doubt against the appellant, So, the impugned judgment passed by learned Trial Court is not the outcome of proper appreciation of evidence brought on record.
14. Resultantly, we are unable to go alongwith the findings arrived 'at by learned Trial Court because the evidence relied upon to pass the impugned judgment is not only weak but suffers from a number of infirmities inasmuch as that evidence brought on record is neither convincing nor confidence inspiring. Recoveries affected are also not believable. So, we find that conviction recorded by learned Trial Court is not sustainable. Consequently, this criminal appeal is allowed.
The conviction and sentence of appellant vide impugned judgment dated 30.4.2011 passed by learned Additional Sessions Judge, Sahiwal is set aside. He shall be released from jail forthwith, if not required in any other case.
15. As a corollary to the above, Murder Reference No, 93 of 2011 is answered in Negative.