AALIA NEELUM, J.- Appellant, Saif Ullah son of Rehmat Ullah, Caste Jatt Duggal, resident of Khiwa Duggal, Police Station Qila Didar Singh, District Gujranwala along with Fayyaz Ahmad (since PO) and Amjad Farooq (since PO) being involved in case F.I.R. No.239 of 2007, dated 22.06.2007, offence under Section 302/34 PPC, registered at Police Station Qila Didar Singh was tried by the learned Additional Sessions Judge, Gujranwala. The learned trial court seized with the matter in terms of judgment dated 07.11.2009 convicted Saif Ullah (appellant) under Section 302 (b)/34 P.P.C and sentenced him to imprisonment for life. The appellant was further directed to pay Rs.1,00,000/- as compensation to the legal heirs of Ghulam Mustafa deceased in terms of section 544-A Cr.P.C and in case of default in payment thereof, to further undergo SI for six months. The benefit of section 382-B Cr.P.C was also extended in favour of the appellant.
2. Feeling aggrieved by the judgment of the learned trial court the appellant impugned the same by way of filing Crl. Appeal No.1912 of 2009.
3. The prosecution story as alleged in the statement (Ex.PD) of the complainant-T ariq Mahmood (PW-7) is that appellant- Saif Ullah son of Rehmat Ullah wanted to take possession of land illegally , owned by the complainant and the complainant (PW-7) filed a suit in the court of Mr. Muhammad Anwar Gondal, learned Civil Judge, Gujranwala and obtained interim stay order . On 22.06.2007 at 04:00 p.m, the complainant (PW-7) along with his brother Ghulam Mustafa (deceased), his father namely Fateh Muhammad (given up PW) and Sami Ullah (PW-8) was present on his lands, whereas Ghulam Mustafa (deceased) was ploughing the land with tractor . In the meanwhile, Saif Ullah appellant on a motorcycle came there and told that he had already prohibited them from cultivating this land but you were again ploughing the land with the tractor .
Whereupon, the complainant (PW-7) said that they were ploughing their own land. Thereafter , the appellant-Saif Ullah went towards the village after extending threats of murder . Later on, co-accused Fayyaz Ahmad (since PO), armed with 244-bore rifle, Amjad Farooq (since PO) armed with 30-bore pistol and Saif Ullah-appellant armed with Sota in furtherance of their common object with preplanned manner while raising Lalkara came there. The appellant-Saif Ullah loudly asked his brother namely Fayyaz Ahmad (since PO) to fire at Ghulam Mustafa (deceased) to murder him so that dispute should have come to an end and whereupon, Fayyaz Ahmad (since PO) made fire shot with his rifle at Ghulam Mustafa (deceased), which hit him on his neck and went through and through. On receiving fire shots, the deceased-Ghulam Mustafa besmeared in blood and fell down. Thereafter , the appellant-Saif Ullah and Amjad Farooq (since PO) inflicted injuries on the body of the deceased- Ghulam Mustafa with their respective weapons. The complainant (PW-7) along with PWs forwarded ahead to rescue his brother , whereupon, Fayyaz Ahmad (since PO) pointed his rifle at them by extending threats that if they interfered they would face the same consequences. The occurrence was witnessed by the complainant (PW-7), Fateh Muhammad (given up PW) and Sami Ullah (PW-8). Ghulam Mustafa (deceased) succumbed to the injuries when he was shifted by the complainant and others to the Hospital Qila Didar Singh. Fayyaz Ahmad and another killed his brother Ghulam Mustafa.
Case be registered against them and justice be provided.
4. On the written complaint (Ex.PD) of the complainant (PW-7), formal FIR (Ex.PB) was chalked out by Muhammad Nazir , ASI (PW-4). Thereafter , Muhammad Aslam, SI (PW-11) being Investigating Officer of this case, proceeded to the place of occurrence where he prepared the rough site plan (Ex.PE). The blood stained earth was taken into possession by him (PW-11) through recovery memo (Ex.P E) recorded the statements of the prosecution witnesses under section 161 Cr.P.C. Then, he (PW-11) proceeded to Civil Hospital and prepared the injury statement (Ex.PF), inquest report (Ex.PG) and entrusted the dead body of the deceased-Ghulam Mustafa to Ghulam Mustafa 3189/C (PW-2) for escorting the same to District Headquarter Hospital, Gujranwala for postmortem examination. After the postmortem examination, Ghulam Mustafa 3189/C (PW-2) handed over to him the postm ortem report on 23.06.201 1. After postmortem examination of the dead body of the deceased Ghulam Mustafa, Ghulam Mustafa 3189/C (PW-2) produced the last worn clothes of deceased before the Investigating Officer (PW-11) i.e Shalwar (P-1), Qameez (P-2) and Parna (P-3), which were taken into possession by the Investigating Officer (PW-11) vide recovery memo (Ex.P A). Whereas Masood Ahmad Bhatti, the Draftsman (PW-5) prepared the scaled site plan of the place of occurrence in duplicate as Ex.PC and Ex.PC/1 and he (PW-5) produced the scaled site plans (Ex.PC) and (Ex.PC/1) before the Investigating Officer (PW 11) on 27.06.2007. The Investigating Officer (PW-11) also recorded statements of PWs under section 161 Cr.P.C. On 27.07.2007, he (PW-11) arrested Saif Ullah-appellant and on 09.08.2007, he sent the appellant-Saif Ullah to judicial lock up and during the interrogatio n nothing was recovered from the possession on disclosure of the accused.
5. He (PW-11) also obtained bailable warrants of arrest of co-accused Fayyaz Ahmad (PO). Thereafter , the investigation was entrusted to Muhammad Arif, SI (PW-10) and he (PW-11) obtained proclamations of co-accused namely Fayyaz Ahmad and Amjad Farooq and he (PW-11) handed over the same to Muhammad Sarwar 1862/C for execution and after execution of the proclamation on 30.09.2007, the statement of Muhammad Sarwar (C) was recorded.
6. Having found the appellant guilty , the Investigating Officer (PW-11) prepared incomplete report and sent the same to the court of competent jurisdiction. On 04.03.2008, the learned trial court formally charge sheeted the appellant to which he pleaded not guilty and claimed trial. The prosecution in support of its version produced as many as twelve (12) prosecution witnesses.
7. Ocular account of first part of occurrence in this case has come out from the statements of Tariq Mahmood-complainant (PW-7) and Sami Ullah (PW-8), whereas, Dr. Imran Bhatti, Medical Officer (PW-12) had conducted postmortem examination of the dead body of deceased-Ghulam Mustafa on 23.06.2007 and found the following injuries on his person:-
(1) A glancing wound 4 cm x 1 cm into skin deep with blackening around, on top of left shoulder .
(2) A firearm lacerated wound of entry 1 V2 x 1 cm into going deep on left side of neck, lower part, alongwith the exit wound 3 x 2 V2 cm on back and right side of the neck.
(3) Contusion 4 cm x 2 cm on right side of forehead.
(4) Abrasion 2 x 2 cm on right cheek.
After conducting the postmortem examination, the doctor rendered the following opinion:- Opinion:- "After careful external and internal postmortem examination of the dead body , I am of the opinion that the death in this case has occurred due to irreversible haomorrhagic shock due to injury to major vessel of neck mentioned above under dissection caused by injury No.2, which is sufficient to cause death in ordinary course of nature. All the injuries are ante mortem. Injuries No.1 and 2 were caused by firearm weapon and injuries No.3 and 4 caused by some blunt weapons.
Probable time that elapsed between the injuries and death was within half to one hour and between death and postmortem examination was 8 to 10 hours. Ex.PK along with its two diagrams Ex.PK/1 and Ex.PK/2 are in his hand and bears his signatures"
Rest of the prosecution witnesses are formal in nature.
8. On 26.09.2009, the learned ADPP closed the evidence of prosecution by tendering the report of Chemical Examiner (Ex.PL) and report of Serologist (Ex.PM).
9. The appellant was also examined in terms of Section 342 Cr.P.C, wherein he opted to appear as his own witness and also to produce defence witness in disproof of the allegations levelled against him in the prosecution version. In response to a particular question why this case is agains t him and why the PWs deposed against him, Saif Ullah-the appellant , made the following deposition:- "I am a thorough gentleman and have never been involved in any criminal case. I am working as employee of Abdul Waheen Kahloon. Abdul Waheen Kahloon has dancing horses and I look after his horses. Dera of Abdul Waheed Kahloon is at a distance of 12 kilometers from the place of occurrence. On the day of occurrence, I was present at the said Dera alongwith Abdul Waheed, when I received a telephonic call that Ghulam Mustafa has been murdered.
After hearing this news I went to the place of occurrence and when I reached there it came into my notice that complainant party has involved my brothers Faiz Ahmad, Amjad Farooq and me in murder of Ghulam Mustafa.
Complainant has involved me in this case only being the real elder brother of Faiz and Amjad Farooq accused. I am quite innocent in this case. During investigation, it was found that I have not participated in the occurrence. All the PWs are closely related with the deceased and due to this relationship they falsely deposed against me"
10. In defence, the appellant has produced Abdul Waheed as DW-1 and closed the defence evidence on 21.10.2009.
11. The learned trial court after evaluating the evidence available on record in the light of arguments advanced from both sides, found the prosecution version proved beyond any shadow of reasonable doubt resulting into conviction of the appellant in the afore stated terms.
12. Learned counsel for the appellant has contended that in the column No.3 of the inquest report (Ex.PG) nothing was written. The medical evidence is in conflict with the ocular evidence, as specific case of prosecution has been that one fire shot was made but the two firearm injuries on the body of the deceased were found, in this view, it is clearly reflected that no one has witnessed the incident as alleged and claimed by the prosecution. The witnesses who have been examined and whose evidence has been relied upon are inimical partisan witnesses being close to the deceased and in this view, no reliance can be placed on the testimony that has been relied upon by any means. In the inquest report time of receiving information has not been mentioned. During spot inspection by the I.O 20 empties were secured by the I.O, which negates the prosecution version and that the most important eye witness namely Fateh Muhammad was given up by the prosecution. Learned counsel for the appellant has lastly prayed that the prosecution has badly failed to prove its case against the appellant beyond any shadow of doubt and therefore, the appellant may be acquitted from the charge.
13. On the other hand, the learned Deputy Prosecutor General assisted by the learned counsel for the complainant has vehemently opposed the contentions raised by the learned counsel for the appellant with the submissions that the appellant is duly named in the crime report with specific role; that the injury attributed to the appellant is available on the body of the deceased; that the prosecution witnesses remained consistent on all material points; that the medical evidence and the ocular account is in line; that two eye witnesses of the occurrence namely Tariq Mahmood (PW-7) and Sami Ullah (PW- 8) have proved the prosecution version in toto; that the appellant has not denied the occurrence in his statement recorded under section 342 Cr.P.C and it is a broad day light occurrence so there is no possibility of false implication of the appellant in this case. Learned Law Officer as well as learned counsel for the complainant had lastly prayed that the charge in the present case has been brought home and no interference should be made by this Court in the judgement of the learned trial court and conviction and sentence should be affirmed.
14. Arguments advanced from both sides have been heard. I have also gone through the record with the able assistance of the learned counsel for the parties.
15. It was a specific case of the prosecution, as stated by Tariq Mehmood (PW-7) and Sami Ullah (PW-8) that when Ghulam Mustafa fell down, Saif Ullah accused hit him (Ghulam Mustafa) with his (Saif Ullah) sota. None of the witnesses has stated that on which part of the body of Ghulam Mustafa, the accused Saif Ullah hit with his sota. Tariq Mehmood (PW- 7) is brother whereas Sami Ullah (PW-8) is 'phophizad ' of the deceased-Ghulam Mustafa. Therefore both the prosecution witnesses were interested witnesses. On perusal of the oral testimony made by the above witnesses and the medical evidence on record contradiction has been noted. Dr. Imran Bhatti (PW-12), who conducted post mortem on the dead body of the deceased found two blunt injuries on the person of the deceased besides two fire arm injuries. Dr. Imran Bhatti (PW- 12) deposed during examination-in-chief that, "The other injuries No.], 3 and 4 were superficial.----- Injuries No.] and 2 were caused by firearm weapon and injuries No. 3 and 4 caused by some blunt weapon." During cross-examination Dr. Imran Bhatti (PW-12) deposed that, "It is possible that when injury is received on left side of neck the injured may fall right side. It is correct that injuries No. 3 and 4 may be due to fall of injured." As per medical evidence, both the injuries i.e injuries No.3 and 4 were superficial. Medical evidence on record clearly shows that the witnesses had suppressed the truth. Death had not occurred due to both blunt superficial injuries. The medical evidence on record rules out that death was the result of injuries No.3 and 4 caused to Ghulam Mustafa by the blunt weapon. In the present case there is no documentary or oral evidence to prove the fact that any specific injury was caused by the accused Saif Ullah to the deceased and same was sufficient in the ordinary course of nature to cause death. This is a serious deficiency in the case of the prosecution. This material contradiction in the medical and ocular evidence creates dent in the case of the prosecution.
16. Apart from above the rough site plan (Ex.PE) which contains the factual observations of the Investigating Officer- Muhammad Aslam (PW-11) about the spot position is proved by the testimony of the I.O. (PW-11). Muhammad Aslam- Investigating Officer (PW-11) deposed during examination-in-chief that, "I reached the spot and inspected the place of occurrence. I prepared the rough site plan Ex.PE and recorded the statements of the PWs u/s 161 Cr.P.C." It is also to be taken note of that two points "A" has been shown in the site plan, first point "A" was where Ghulam Mustafa received firearm injury and at second point "A" the dead body of Ghulam Mustafa was found by the Investigating Officer- Muhammad Aslam (PW-11) which was at north east side as depicted in the rough site plan whereas presence of the accused-Saif Ullah was shown at point "D" which was between south east from where it was impossible to give sota blow to the deceased. It is equally true that in the scaled site plan (Ex.PC and Ex.PC/1) prepared on 25-06-2007 second point "A" where dead body of Ghulam Mustafa was laying was not shown. However, Tariq Mehmood (PW-7) deposed during examination-in-chief that, "When my brother fell down Saif Ullah accused hit him with his Sota." The evidence of Tariq Mehmood (PW-7) is silent regarding the fact that at which side Ghulam Mustafa fell down on receiving fire arm injury. Sami Ullah (PW-8) deposed during examination-in-chief that, "The deceased fell on his left side. When the deceased fell down. Saif Ullah and Amjad accused gave Danda blows and butts blow to the deceased." However this statement of the PW-8 was confronted by the defence with his earlier statement. Sami Ullah (PW-8) deposed during cross-examination that, "I did not record before the police that the deceased fell on his left side. Today I have stated that the deceased fell on his left side." The deposition of Tariq Mehmood (PW-7) and Sami Ullah (PW 8) leaves no manner of doubt that they deliberately concealed the place where the deceased fell down on receiving fire arm injury.
Whereas at the time of inspection of place of the occurrence by the Muhammad Aslam-Investigating Officer (PW-11) the place where the deceased fell down was shown as "A" in the rough site plan (Ex.PE). Besides, the tractor was also shown at point "A" in the rough site plan as well as in the scaled site plan that the tractor was going from east to west. As the deceased received fire arm injuries on left side of the neck as observed by the doctor (PW-12) so it is possible that the deceased fell down at his right side from the tractor and received two blunt superficial injuries. The fact of falling down of the deceased-Ghulam Mustafa at his right side also reflects from the rough site plan (Ex.PE). On perusal of the rough site plan (Ex.PE) and scaled site plans (Ex.PC and Ex.PC/1), it reveals that scaled site plans were manipulated by the prosecution. The complainant took the benefit of the occurrence and implicated the appellant. In the absence of any such material which would corroborate the evidence of Tariq Mehmood (PW-7) and Sami Ullah (PW-8), I think it highly unsafe to rely on the testimony of Tariq Mehmood (PW-7) and Sami Ullah (PW-8) to convict the appellant.
17. As far as motive is concerned, it is a double edged sword, which cut both sides/ways. It is admitted fact that the grandfather of the accused-Saif Ullah is the real brother of the grandfather of complainant-T ariq Mehmood (PW-7). The complainant-T ariq Mehmood (PW-7) deposed during examination-in-chief that the accused forcibly wanted to take possession of their agriculture land. In the instant case, the complainant side had filed civil suit against the accused and this fact has not been disputed before this Court. Now it is trite law that enmity is a double edged weapon. The existence of a motive on the part of the accused may be a reason for committing the crime, yet the court has to be cognizant of the fact that this may in a given case lead to false implication of the appellant. The complainant-T ariq Mehmood (PW-7), however , during the course of cross-examination deposed as under:- "It is correct that the disputed agricultural land is a co-sharer between me and Saif Ullah. It is incorrect to suggest that the stay order which I obtained from the Civil Court was lateron dismissed. No case is pending before Civil Court now-a-days. The civil suit was dismissed."
It is also in the cross-examination of Muhammad Aslam-Investigating Of ficer (PW -11) that: "It is correct that it has come into my know ledge that there is a dispute of land between the parties. It is correct that the miller crop was sown by the brothers of accused Saif Ullah. It is correct that during investigation it has come into my knowledge that there is civil litigation pending between the parties."
From the prosecution evidence, it reveals that the Investigating Officer (PW-11) failed to investigate the motive part of present case, thus the prosecution has failed to lead evidence of a clear motive. In this background, implication of Saif Ullah-appellant in the case due to property dispute, it is quite probable for prosecution witnesses to implicate Saif Ullah in a criminal case. Motive is a double edged weapon for the occurrence and also for false implication. There are always different motives operate in the mind of the person in making false accusations.occurrence and motive part of the occurrence. Section 342 of the Criminal Procedure Code as follows:- "342. Power to examine the accused.
(1) For purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the Court may, at any stage of any inquiry or trial without previously warning the accused, put such questions to him as the Court considers necessary, and shall, for the purpose aforesaid, question him generally on the case after the witness for the prosecution have been examined and before he is called on for his defence.
(2) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them, but the Court may draw such inference from such refusal or answers as it thinks just.
(3) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.
(4) Except as provided by sub-section (2) of section 340, no oath shall be administered to the accused.
It is consistent view of the Apex Court that any circumstance in respect of which an accused was not examined under section 342 of the Criminal Procedure Code, 1898 cannot be used against him. Non indication of inculpatory material in its relevant facets by the trial court to the accused adds to vulnerability of the prosecution case. The trial court was bound to ask such question from an accused under section 342 of Criminal Procedure Code, 1898, which relates to root of prosecution evidence and bases for his conviction. The incriminating evidence not put to accused cannot be used against him concealed. The occurrence has not taken place as deposed by the PWs. The ocular evidence is also not proved beyond reasonable doubt to the extent of the appellant. Keeping in view the cross-examination of the PWs, possibility of injury by fall in the present case also cannot be ruled out. After coming to the conclusion that the prosecution case is lacking sufficient incriminating corroborating evidence especially material contradiction in the ocular account and the medical evidence, there is no need to take into the defence plea of alibi taken by the appellant. Under such circumstances, it cannot be said that the prosecution has proved the guilt of the accused-appellant beyond any reasonable doubt to warrant conviction. Needles to mention here that benefit of doubt always goes in favour of the accused. Resultantly Criminal Appeal No.1912 of 2009 is accepted. Conviction and sentence recorded by the learned trial court vide judgment dated 07.11.2009 is set aside as a consequence whereof, Saif Ullah, appellant is ordered to be acquitted of the charge in case F.I.R. No.239 of 2007, dated 22.06.2007, offence under section 302/34 P.P.C. registered at Police Station Qila Didar Singh, District Gujranwala. The sentence of the appellant was suspended by this Court vide order dated 23.06.2010, therefore, his surety stands discharged from the liability of bail bonds.