AALIA NEELUM, J:- Asghar Ali son of Arshad Ali alias Ashraf, Caste Rajput, resident of Chak No.529/G.B, Police Station, Tarkhani, District, Faisalabad, the appellant along with his co-accused, Akbar Ali (since proclaimed offender) was involved in case F.I.R. No.75 2006, dated 03.03.2006, offence under Sections 302, 34 P.P.C., registered at Police Station, Tarkhani, District Faisalabad and was tried by the learned Additional Sessions Judge, Faisalabad. The learned trial court seized with the matter in terms of judgment dated 31.03.2009, convicted the appellant under Section 302 (b) P.P.C. and sentenced to Imprisonment for life. 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, Asghar Ali, appellan t has assailed his conviction by filing instant Criminal Appeal No.519 of 2009 whereas the complainant-Shaukat Ali (PW-11) being dis-satisfied with the impugned judgment dated 31.03.2009, preferred a Criminal Revision No.363 of 2009 for enhancement of sentence of the accused-Asghar Ali. As both the matters are arising out of one and the same judgment, therefore, they are being disposed of through a single judgment.
3. The prosecution story as alleged in the F.I.R (Ex.PF/2) lodged on the written complaint (Ex.PF) of Shaukat Ali Khan (PW-11) the complainant is that he (PW-11) is employee of Lyallpur Sizing and on 02.03.2006 at about 03:30 p.m., Zulfiqar alias Nanha son of Muhammad Hussain, Caste Gujjar, resident of said village came to his (PW-11) son Sakhawat Ali (since dead) and said to him (Sakhawat Ali-since dead) that he (Zulfiqar alias Nanha) had to take an amount which was given to the accused-Asghar Ali as loan and asked to Sakhawat Ali (since dead) to accompany him (Zulfiqar alias Nanha) whereupon, Sakhawat Ali (since dead) accompanied Zulfiqar alias Nanha to the accused-Asghar Ali. In the meanwhile, a quarrel took place among the accused-Asghar Ali, Sakhawat Ali (since dead) and Zulfiqar Ali alias Nanha, which was settled due to the intervention of the people and on the same day, at about 08:30 p.m., (night), Sakhawat Ali (since dead) was going to the P.C.O., of Waseem Baber to make a call and when Sakhawat Ali (since dead) reached near the house of the accused Asghar Ali, the accused-Asghar Ali along with Akbar Ali while armed with 12-bore guns, arrived there and the accused-Asghar Ali raised lalkara that a lesson be taught to Sakhawat Ali (since dead) Ali for quarrelling and made straight fire with his gun 12-bore, which hit on the front side of chest of Sakhawat Ali (since dead). Thereafter, the accused-Asghar Ali made second fire, which landed on the right arm of Sakhawat Ali (since dead). During alleged occurrence, the co-accused, Akbar Ali (since proclaimed offender) continued firing that if any body would come near, he would not be spared. After hearing hue and cry, Khuda Dad (PW-13) and Riasat Ali (PW-12) attracted to the place of occurrence. The accused-Asghar Ali and Akbar Ali (since proclaimed offender) took the deceased, Sakhawat Ali in their house in an injured condition and Sakhawat Ali (since dead) succumbed to the injuries.
4. As per police karwai, Asghar Ali Zia, S.I. (PW-8) along with Nawaz ul Haq 645/C (PW-4), Muhammad Naeem 3353/C was present at Adda 45/G.B in connection with patrolling, where the complainant (PW-11) met Asghar Ali Zia, S.I. (PW-8) and produced written complaint (Ex.PF) before him (PW-8). Thereafter , Asghar Ali Zia, S.I. (PW-8) sent the complaint (Ex.PF) to the police station through Nawaz ul Haq (PW -4) for registration of formal F .I.R.
5. On the basis of written complaint (Ex.PF), formal F.I.R (Ex.PF/2) was chalked out by Muhammad Afzaal, A.S.I (PW-9). Thereafter, investigation was entrusted to Khalid Hussain, S.I. (CW-1), who reached at the spot and inspected the dead body of the deceased, Sakhawat Ali and prepared inquest report (Ex.PC), injury statement (Ex.PD) and took into possession a pistol 30-bore (C.1) from the hands of the deceased, Sakhawat Ali vide recovery memo (Ex.CW-1/A). Thereafter, the Investigating Officer (CW-1) sent the dead body of the deceased, Sakhawat Ali to Civil Hospital, Samundari for autopsy under the escort of Nawaz ul Haq 645/C (PW-4). The Investigating Officer (CW-1) secured bloodstained earth from the place of occurrence vide recovery memo (Ex.PG) and also took into possession empty cartridges of 12-bore pistol (C.3/1-8) and 30-bore pistol (C.2/1-4) from the place of occurrence through recovery memo (Ex.CW-1/B). Thereafter, the Investigating Officer (CW-1) prepared rough site plan of the place of occurrence (Ex.CW.1/C). Nawaz ul Haq 645/C (PW-4) produced last worn clothes of the deceased i.e. Shirt P 1), Shalwar (P-2), Bunyan (P-3) and a pair of shoes (P-4/1-2), before the Investigating Officer (CW-1), who took the same into possession vide recovery memo (Ex.PA). On 06.03.2006, Akbar Ali Nizami, Draftsman (PW-7) on the direction of the Investigating Officer (CW-1) as well as on the pointing of the prosecution witness, visited the place of occurrence and prepared scaled site plans (Ex.PE and Ex.PE/1) and handed over the same to the Inves tigating Officer (CW-1). On 23.03.2006, the Investigating Officer (CW-1) arrested the accused Asghar Ali, who got recovered a repeater gun (P-4) which was taken into possession by the Investigating Officer (CW-1) vide recovery memo (Ex.PM) and also prepared rough site plan of the place of recovery (Ex.CW -1/D). Thereafter , the Investigating Officer (CW-1) recorded the statements of the prosecution witnesses under Section 161 of Cr .P.C.
6. Having found the accused-Asghar Ali guilty , the Investigating Officer (CW-1) got prepared challan through the concerned Station House Officer and placed the same before the court of learned Judicial Magistrate Ist Class, Samundari. The learned Judicial Magistrate Ist Class, Samundari sent the same to the worthy Sessions Judge, Faisalabad for its entrustment to the court of competent jurisdiction. On 04.12.2006, 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 thirtee n (13) prosecution witnesses. In addition to that, Khalid Hussain, S.I./Investigating Of ficer and Nasir Abbas, Inspector were also examined as CW -1 and CW -2 respectively .
7. Ocular account of the occurrence in this case has come out from the statements of the complainant (PW-11), Riasat Ali (PW -12) and Khuda Dad (PW -13).
8. Dr. Sadiq Ali appeared as PW-6 and deposed that on 03.03.2006 at 02:05 p.m., he (PW-6) conducted postmortem examination of the body of the deceased-Sakhawat Ali and found following injuries on his person: Injuries.
1. Fire arm wound of injury 2 x 1 cm on the right upper arm 10 cm below the upper margin of right shoulder . No blackening and burning were seen.
2. Fire arm wound of entry 1 x 1 cm, oval in shape on the front of outer part of right upper arm, 2 cm inner to the injury No.1, no blackening and burning was seen.
3. Fire arm wound of entry 1 x 1 % cm on the front of right shoulder , 5 cm inner to injury No.2. (wound of exit) of injury No.3 was present about 3 cm from the wound of entry on the front and upper part of right shoulder .
4. Fire arm wound of entry left front of chest 5 cm below the inner border of left clavical.
5. Fire arm wound of entry 2 x 1 % cm on the right front of chest. Wound of exit 2 x 2 cm on right front of chest 3 cm below the neck.
6. Fire arm wound of entry 1 % x 1 cm on the right back of chest 11 cm below the upper margin of right shoulder . Wound of exit 2 x 1 % cm away from the left side to the injury No.6.
After conducting postmortem examination, the doctor rendered following opinion:- Opinion.
"After conducting the postmortem examination, the doctor has opined that all the above mentioned injuries were ante-mortem and inflicted by fire arm.
Injuries No.1, 2 and 4 were grievous and fatal in nature. In ordinary course of nature, injuries No.1, 2 and 4 were sufficient to cause death individually and collectively . Death in this case was due to haemorrhage and injuries to vital organs (lungs)."
"The time between injuries and death was sudden and that of between death and postmortem was about 6 to 18 hours."
"Ex.PB is the correct carbon copy of postmortem report and pictorial diagram of the injuries is Ex.PB/1."
The statements of remaining prosecution witnesses are formal in nature.
9. On 10.01.2007, the learned A.D.A gave up PWs-Sikandar Ali being won over whereas Abdul Hameed 9/C and Ehsan Ali 1372/C being un-necessary . On 20.03.2007, the learned Deputy District Public Prosecutor gave up PW- Liaqat Ali being un-necessary . The learn ed Assistant District Public Prosecutor tendered the report of Chemical Examiner , Lahore (Ex.PJ), report of Forensic Science Laboratory (Ex.PL), report of Serologist (Ex.PK) and closed the prosecution evidence on 03.03.2008.
10. The appellant was also examined in terms of Section 342 Cr.P.C., wherein he showed willingness to appear as his own witness in disproof of the allegati ons levelled against him and also opted to produce defence evidence. In response to a particular question why this case is against him and why PWs depo sed against him, Asghar Ali (the appellant) made following deposition:- "The PWs are related inter-se and deposed against me falsely to support false prosecution version. The deceased was a notorious criminal with the history of many criminal cases. On the day of occurrence at about 8.30 p.m, Sakhawat Ali deceased and his companion Zulfiqar while duly armed with pistols entered into my house and confined the inmates in my Baithak on pistol point. The deceased demanded money and my licensed repeater, on my refusal, he took me from Baithak to other room on pistol point. In the meantime, the inmates of my house, unbolted the door of the Baithak and tried to run away from the Baithak, Sakhawat Ali deceased turned towards the Baithak, in the meantime, I availed opportunity to take my licensed repeater from the room of my house and went to the roof of my house. On which, the deceased started firing upon me from the courtyard of my house while taking shelter of wall of my house. I while exercising my right of self-defence of person and property, I started firing, Zulfiqar, companion of the deceased, also started firing from my house. In the meantime, the deceased Sakhawat rushed towards the room where my sisters were present and made lalkara that my sister be abducted.
Thereafter the deceased also made firing from the verandah situated in front of the room where my sisters were present. During the cross-firing, Sakhawat deceased received injuries in the verandah and fell in the adjacent room. The complainant and PWs were not present at the place of occurrence, at the time of occurrence. We summoned the police and when the police came at the place of occurrence and took the dead body into possession along with pistol from the room of my house. The I.O also took into possession four crime empties of 30 bore pistol from my house and sent pistol and empties to the office of Forensic Science Laboratory, Lahore and according to the report of said Laboratory, the empties were found to be fired from the pistol of the deceased. My co-accused Akbar was not present in the house at the time of occurrence. It was dark night no one witnessed the occurrence. I have committed no offence.
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. I have heard the arguments advanced by the learned counsel for the parties and have minutely perused the record available on the file.
13. The occurrence in this case as per F.I.R. (Ex-PF/2) took place at 8:30 p.m. on 02-03-2006 and the incident was informed to the complainant-Shoukat Ali (PW-11) by his (PW-11) brother , Riasat Ali (PW-12) and Khuda Dad (PW- 13), khalazad of Sikhawat Ali-the decea sed, at 8:30 p.m. The complainant-Sh oukat Ali (PW-11) reported the incident to the police at 7.15 a.m on 03-03-2006 at "Adda Pull 45" to Asghar Ali, A.S.I (PW-8) through written complaint (Ex.PF) and formal F.I.R. was chalked out at 7.25 a.m. on 03-03-2006. The Police Station, Tarkhani District, Faisalabad was at a distance of 18 kilometers from the place of occurrenc e. The incident has taken place at Chak No.529/GB. The inordinate delay of ten hours and forty-five minutes in reporting the incident has not been explained by the prosecution in-spite of the fact that Police Station was at a distance of 18-kilometers from the place of occurrence. The delay of ten hours and forty-five minutes in reporting the incident provides sufficient time for deliberation and consultation. Delay in lodging the F.I.R. often results in embellishment, which is creation of an afterthought. Riasat Ali (PW-12) deposed during cross-examination that, "I narrated the occurrence to Shaukat Ali complainant when he was present in his house at about 8.30 P.M. after the occurrence. I and Rhuda Dad PW went to the house of Shaukat Ali PW to inform him together . Shaukat PW was present in the room of his house at that time. Again said we knocked the door of the house of Shaukat Ali, who came at the door .
We went into the house and narrated the occurrence to him in the court-yard of the house." Khuda Dad (PW-13) deposed during cross-examination that, "Soon after the occurrence, within five minutes we went to Shaukat Ali complainant and narrated the whole story to him, who was present at his house. We told the occurrence to Shaukat Ali in the verandah where we were sitting." From the above facts and deposition of the complainant (PW-11) and prosecution witnesses i.e. PW-12 and PW-13, it reveals that the prosecution has not succeeded in proving that the F.I.R. was lodged promptly. Although the complainant-Shoukat Ali (PW-11) deposed during court statement that, "The accused persons made nakka-bandi on passages in the village, therefore, I on getting a chance was proceeding to report the matter at the police station but when I reached at Adda Pull 45, police party met me there. I at 7.15 AM presented a written application Ex.PF to the I.O, which was signed by me." The testimony of the complainant is not supported by any independent evidence that the accused persons had made "nakka-bandi" of the passages in the village. The defence got confronted the testimony of the complainant-Shoukat Ali (PW-11) with the written complaint (Ex.PF). The complainant-Shoukat Ali (PW-11) deposed during cross-examination that, "I got recorded in my statement Ex.PF that the accused persons made Naka-bandi in the village, therefore, I on getting a chance was proceeding to report the matter at police station. (Confronted with Ex.PF where it is not so recorded)."
So, the inordinate delay of about ten hours and forty-five minutes from the time of receiving information from Riasat Ali (PW-12) and Khuda Dad (PW-13) remained unexplained.
14. The matter does not stop here. There is yet another infirmity which further deepens the suspicion and casts cloud of doubt on the authenticity of the F.I.R. (Ex.PF/2). The complainant-Shoukat Ali (PW-11) got prepared an application for registration of criminal case from his relative namely "Anwar" who had come to visit him (PW-11) from Sadiq-Abad. Non-mentioning of this fact in the application/complaint (Ex.PF) indicates that the complainant- Shoukat Ali (PW-11) had not stated complete truth and that the F.I.R. came into existence later on, after due deliberations and consultations and author of the complaint should have to state that the complaint was prepared by him under the instructions of the complainant, which was shown to the complainant, read over to him (the complainant) which was signed by the complainant. The Hon'ble Supreme Court of Pakistan in the case of "Allah Bachaya and another v. The State" (PLD 2008 SC 349) held that:- "In the instant case, the FIR was not recorded at the police stations. It has been held time and again that FIRs which are not recorded at the police stations suffers from the inherent doubt that those were recorded at the spot after due deliberations."
Even the complainant-Shoukat Ali (PW-11) had not given any explanation regarding delay in lodging the report and about preparation of complaint, in the complaint (Ex.PF) as well as in his (PW-11) statement before the learned trial court, therefore, in these circumstances chance of consultations and deliberations , on the part of the complainant- Shoukat Ali (PW -11), cannot be ruled out.
15. Another important aspect of the case which cannot go un-noticed is that the postmortem examination of the dead body of the deceased-Sikhawat Ali in this case was also conducted with delay of seventeen hours and thirty minutes from the death of Sikhawat Ali. The occurrence in this case took place on 02-03-2006 at 08:30 p.m. whereas it is evident from the perusal of postmortem examination report (Ex.PB) of the deceased- Sikhawat Ali, that postmortem was conducted on 03-03-2006 at 2:05 p.m. Doctor Sadiq Ali (PW-6) deposed during cross-examination that "As soon as I received the police papers I started P.M. examination on the dead body of deceased without any delay on my part." The complainant-Shoukat Ali (PW-11) deposed that, "The police dispatched the dead body of Sikhawat deceased from the spot at about 8-AM. " He (PW-11) further deposed that "I along with my brother and other relatives took the dead body of Sikhawat Ali to the police station. We along with dead body reached the P.S. at about 8.30 AM. We carried the dead body in a private dalla." Contrarily , Riasat Ali (PW-12) deposed during cross-examination that, "Police had recorded my statement for the first time at the spot at about 8/8.30 AM. Thereafter my statement was also recorded at the P.S. at the time of registration of the FIR. FIR was lodged soon after the dead body was sent to the hospital for autopsy ." So, it is evident that the postmortem examination of the deceased-Sikhawat Ali was conducted with inordinate delay of six hours thirty minutes from the time of reporting the incident and seventeen hours and thirty minutes from the alleged occurrence. It indicated that the incident was not reported to the police as stated by the prosecution. Delay in lodging the First Information Report, quite often results in consultation and deliberation, which is a creation of after-thought. The prosecution failed to explain the delay in reporting the incident as well as delay in conducting postmortem examination of the dead body of Sikhawat Ali-the deceased. Hence, these circumstances raised considerable doubt, regarding the veracity of the case, and it was held that it was not safe to base conviction. Unexplained delay of reporting the incident in lodging the First Information Report proves fatal to the case of the prosecution.
16. The ocular account has been furnished by Riasat Ali (PW-12) and Khuda Dad (PW-13). It is in the evidence of the complainant Shoukat Ali (PW-11), that he (PW-13) is father of Sikhawat Ali-the deceased, Riasat Ali (PW-12) is paternal uncle of Sikhawat Ali-the deceased and Khuda Dad (PW-13) is khalazad of Sikhawat Ali-the deceased. It is the prosecution version that the complainant was resident of Faisalabad. The complainant-Shoukat Ali (PW-11) deposed during examination-in-chief that, "I was serving at Lyallpur sizing at the time of occurrence." The complainant-Shoukat Ali (PW-11) depos ed during cross-examination that, "Riasat and I reside in the same village. Riasat my brother is a lambardar of the village." It is in the evidence of Riasat Ali (PW-12) that he (PW- 12) is resident of Islamabad and runs a shop of sweets and milk and Khuda Dad (PW-13) is resident of Chak No.76/JB Jodhan, Tehsil & District, Faisalabad. The complainant- Shoukat Ali (PW-11) was not witness of the first part of the occurrence which took place at 3:30 p.m. on 02-03-2006. The narration of first part of the occurrence was based on the information rendered by Zulfiqar P.W. During cross-examination the defence got confronted the deposition of the complainant-Shoukat Ali (PW-11) with his written complaint (Ex.P F). The complainant-Shoukat Ali (PW-11) deposed during cross-examination that, "I had got recorded in Ex.P.F that above facts were narrated to me by Zulfiqar PW. (Confronted with Ex.P.F where it is not so recorded.)". Admittedly occurrence took place, as per prosecution version, at Chak No.529/GB Saifabad near the house of the accused-Asghar Ali. It was stated by the complainant-Shoukat Ali (PW-11) that, "On the same day younger brother of Sabir who was ill and Sikhawat Ali came to phone at Awami P.C.O situated at Saif-abad. When he was going to phone at the said P.C.O, on his way when he reached near the house of Asghar Ali accused, Asghar raised lalkara and opened fire with his Repeater gun which hit Sikhawat Ali decesed on his chest." Whereas during cross- examination, he (PW-11) deposed that, "I had not got recorded in my applicatio n Ex.P.F that on the same day younger brother of Sabir who was ill and Sikhawat Ali came to phone at Awaami PCO situated at Saifa- abad. Volunteered that I had got recorded in Ex.P.F that brother of Sikhawat Ali deceased was sick and he had gone to the P.C.O at Chak No. 529/GB. (Confronted with Ex.P.F where there is no mention of brother of Sikhawat Ali deceased. The P.C.O is adjacent to the house of Asghar accused. I had got recoded in Ex.P.F that second fire hit Sikhawat deceased on his right shoulder . (Confronted with Ex.PF where it is not so recorded)." Whereas, regarding second part of the occurrence wherein Sikhawat Ali (the deceased) lost his life, Riasat Ali (PW-12) deposed during examination-in-chief that, "We went to Shaukat Ali PW, the father of the deceased and narrated the incident to him." Whereas, during cross-examination he (PW-12) deposed that, "I had stated in my statement u/s 161 Cr.P.C that we went to Shaukat Ali PW, the father of the deceased and narrated the incident to him (Confronted with Ex.DA where it is not so record ed)." Similarly , Khuda Dad (PW- 13) deposed during examination-in-chief that, "We went to Shaukat Ali complainan t P.W and narrated the occurrence to him." Whereas, during cross-examination, he (PW-13) deposed that, "I got recorded in my statement to the police that we went to Shaukat Ali complainant and narrated the occurrence to him (Confronted with Ex.DC where it is not so recorded)." Whereas Khuda Dad (PW-13), deposed regarding his (PW-12) presence at the place occurrence that, "I got recorded in my statement before the police I went to attend a marriage party in Chak No.529/GB on 2.3.2006. (Confronted with Ex.DB where it is not so recorded). " In this background, presence of the alleged eye-witnesses on the spot seems doubtful. The complainant-Shoukat Ali (PW-11), himsel f was not a witness of the occurrence and was just an informer and his evidence could be stated as hearsay evidence which could not be treated as evidence in the eyes of law. What remains as substance is testimony of Riasat Ali (PW-12) and Khuda Dad (PW-13) and both (PW-12 and PW 13) could not justify their presence at the spot. According to the story of prosecution narrated in the written complaint (Ex.PF), when Sikhawat Ali-the deceased reached near the house of Asghar Ali-accused, then the accused-Asghar Ali raised lalkara and made straight fire with his repeater gun which hit Sikhawat Ali-deceased on his chest.
Second fire shot made by the accused-Asghar Ali hit on right side of the right arm of Sikhawat Ali-the deceased.
Meanwhile Riasat Ali (PW-12) and Khuda Dad (PW-13) also attracted to the place of occurrence on hearing hue and cry. The accused persons continued aerial firing and thereafter they picked up the dead body in to their house. While appearing before the learned trial court, Khalid Hussain S.I. (CW-1) deposed during cross- examination that, "I found blood only at point No.1 which is a room of residential house of accused. No blood or trail of blood was found at any other place except point No.1. Place of occurrence is amidst of abadi. I had not found any abrasion or scratches on the dead body of Sikhawat deceased, therefore, I have not mentioned the same in injury statement and inquest report of the deceased Ex.PD and Ex.PC respectively." Later on Nasir Abbas, Inspector (CW-2) also investigated the case and he (CW-2) is the Investigating Officer, who deposed during cross-examination that, "It is correct that during my investigation it was found that Sikhawat deceased along with Zulfiqar who had some transaction with Asghar accused forcibly entered into the house of Asghar Ali accused for recovery of that amount. Sikhawat deceased had no connection with transaction between Asghar accused and Zulfiqar. He being a criminal went into the house of Asghar accused just to obtain money from him forcibly." He (CW-2) further deposed that, "I summoned the PWs at the spot and asked PWs Riasat Ali and Khuda Dad their presence at the time of occurrence and they showed their presence at the time of occurrence at a distance of 1 1/2 acres from the house of Asghar Ali accused. It is correct that it is hard to see the occurrence from a such distance and to identify the assailants and their respective arms. It is correct that I had come to the conclusion in my investigation that the incident took place in the dark night. It is correct that incident took place as per my investigation at 10.30 p.m." It is also in prosecution evidence that Asghar Ali-accused raised lalkara and made straight fire with his repeater gun which hit Sikhawat Ali-the deceased on his chest. Second fire shot made by Asghar Ali-accused hit on right side of the right arm of Sikhawat Ali-the deceased. On perusal of the medical evidence, it reveals that the diameter of injuries 1 to 6 were 2 x 1 %Z cm, 1 x 1 cm, 1 x 1 %Z cm, 2 x 1 %Z cm and 1-1/2 x 1 cm but without tattooing or blackening. That the above noted injuries were not gunshot injuries and could not be caused with a 12 bore repeater gun, which according to the prosecution was used by the appellant in the occurrence. The nature of injuries suggests that the shots were not fired with 12 bore repeater gun. To consider this vital question this Court has perused rough site plan (Ex.CW1/C) and scaled site plans (Ex.PE and Ex.PE/1).
Riasat Ali (PW-12) deposed during cross- examination that, "The draftsman took rough notes from the place of occurrence in my presence after six/seven days of the occurrence. We pointed out the relevant places to the draftsman who prepared the scaled site plans. I pointed out six relevant points to the draftsman about the occurrence.---The scaled site plans were got prepared in presence of complainant Shaukat Ali, in my presence and Khuda Dad PW." Khalid Hussain S.I. (CW-1) was cross-examined by the learned counsel for the complainant and during cross-examination he (CW-1) deposed that, "I have not mentioned the fact that Ex.C.W1/C was prepared on whose pointation, however , I have mentioned so in my zimni report No.1 dated 3.3.2006. The witness was asked to show the said Zimni and he was shown the same, therein this fact is mentioned." In the site plans (Ex.PE and Ex.PE/1) full details of crime scene has been specified, wherein point '2' has been specified as the place where Sikhawat Ali-the deceased received fire shots; '3' is the point and the place from where Asghar Ali -accused made fire shots. Point '4' is the place from where witnesses have witnessed the incident. The distance between point '2' and '3' was 17 feet whereas nature of injuries suggests that the shots were not fired from a distance place with 12 bore repeater gun. The evidence of prose cution witnesses and site-plans are fully consistent on this point that Asghar Ali-accused made fire shots from his 12 bore repeater gun which is not supported by medical evidence. As such, there is conflict between medical and oral evidence. It also casts doubt about the prosecution story . Looking to these facts, this Court is of the opinion that true genesis of the occurrence has been withheld by the prosecution. Therefore, possibility of false implication of the appellant in the alleged crime cannot be ruled out and this Court is of the view that the prosecution has failed to bring home the charges framed against the appellant.
17. This Court has noticed that the cond uct of the prosecution witnesses is highly unnatural. Riasat Ali (PW-12) deposed during cross-examination that, "After informing the above said occurrence to Shaukat complainant, I went to my house, thereafter I remained in my house till morning." Khuda Dad (PW-13) deposed during cross- examination that, "We stayed at the house of the complainant after narrating to occurrence to him till morning. Riasat PW went to his house which is adjacent to the house of the complainant. We raised hue and cry but no one from the vicinity attracted to the spot including our relatives. There are two/three houses of our relatives in the village." From the deposition of Riasat Ali (PW-12) and Khuda Dad (PW-13), it reveals that after receiving information regarding occurrence neither the complainant-Shoukat Ali (PW-11) had made any effort for reporting the incident to the police nor he (PW-11) attracted to the place of the occurrence where the dead body of his son, Sikhawa t Ali-the deceased, was lying. The conduct of the complainant-Shoukat Ali (PW-11) and prosecution witnesses is highly unnatural. In normal and natural circumstances, the complainant ought to have gone to the place where the dead body of his son was lying and had to inform about the incident to the police. Although, it is the prosecution version in written complaint (Ex.P F) that within the view of the complainant-Shoukat Ali (PW-11) occurrence took place whereas Riasat Ali (PW-12) and Khuda Dad (PW-13) claimed that they have informed the complainant-Shoukat Ali (PW-11) about the occurrence. On the material point both prosecution witnesses i.e. Riasat Ali (PW 12) and Khuda Dad (PW-13) nega te the complainant-Shoukat Ali (PW 11). This conduct goes to show that they were not eye-witnesses to the incident because natural conduct would be that having seen the incident, they would have straightway gone to the police station for reporting the incident and would not leave the dead body of Sikhawat Ali-the deceased at the mercy of others. Thus, the evidence of the complainant-Shoukat Ali (PW-11), evidence of Riasat Ali (PW-12) and Khuda Dad (PW-13), if took together , would go to show that after due deliberation and consultation, false case is got up against the accused.
Therefore, in absence of independent corroboration and independent witnesses, it is too risky and hazardous to rely upon the evidence of these interested witnesses and, therefore, this Court has discarded and disbelieved such evidence.
18. The fact that no independent witness though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case having regard to the indisputable facts of this case. Zulfiqar , was one, who was very much in the knowledge of things from the beginning as on 02-03-2006, he came to Sikhawat Ali-the deceased at about 03:30 p.m. and stated that the accused-Asghar Ali did not repay the borrowed amount, whereupon both went together to the accused Asghar Ali for getting back borrowed amount. On refusal to pay back borrowed amount, a quarrel took place among them and on the intervention of the people same was resolved. Whereas, Waseem Babar , owner of P.C.O, on whom P.C.O the deceased-Sikhawat Ali came to make a phone call and when the deceased-Sikhawat Ali reached near the house of the accused-Asghar Ali incident took place. He was one of those, who witnessed the occurrence. The evidence of the first Investigating Officer (CW-1), reveals that the P.C.O was adjacent to the place of occurrence. Khalid Hussain, S.I. (CW-1) deposed during cross-examination that, "I did not associate in my investigation Waseem Babar . I also did not inspect his shop. I have seen the P.C.O of Waseem which is adjacent to the place of occurrence." Whereas, second Investigating Officer, Nasir Abbas, Inspector (CW-2) deposed during cross- examination conducted by the learned counsel for the complainant that, "On the said date Zulfiqar Ali s/o Muhammad Hussain Caste Gujjar R/O Chak no.529/GB appeared before me on behalf of the complainant party . It is correct that he is the person allegedly on account of whose amount outstanding/due against the accused persons instant occurrence took place. The local police did not summon the said persons, therefore, I deem it proper to summon him because he seems to be the bone of contention of the occurrence. He was accompanied by the complainant and supported the complainant' s version.
Volunteered he was with the deceased at the time of alleged occurren ce." During cross-examination conducted by the defence, he (CW-2) deposed that, "It is correct that during my investigation it was found that Sikhawat deceased along with Zulfiqar who had some transaction with Asghar accused forcibly entered into the house of Asghar Ali accused for recovery of that amount. Sikhawat deceased had no connection with transaction between Asghar accused and Zulfiqar . He being a criminal went into the house of Asghar accused just to obtain money from him forcibly ." In the F.I.R, (Ex.PF/2) Zulfiqar is referred to be witness of first part of occurrence and reference of P.C.O was present therein and the complainant-Shaukat Ali (PW-11) also deposed in the court about them. The prosecution had not cited Zulfiqar and Waseem Babar as witnesses of the occurrence. The corroboration of the testimony of the related witnesses-PWs 11, 12 & 13 by a known independent eye-witness could have strengthened the prosecution case. Non-examination of independent witnesses by itself may not give rise to adverse inference against the prosecution. However , when the evidence of the alleged eye- witnesses raises serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness-W aseem Babar , who is most natural but independent witness, would assume significance. Therefore, presumption under Article 129 of the Qanun-e-Sh ahadat Order , 1984 could fairly be drawn in circumstances of the case in favour of the appellant as the prosecution withheld most important witness and even said witness was not produced during investigation. However , second Investigating Officer (CW- 2) summoned them.
19. As far as the recovery of 12 bore repeater gun (P-4) and five live cartridges (P-5/1-5) which had allegedly been recovered from the appellant and positiv e report of Forensic Science Laboratory (Ex.PL) though indicate that 12 bore repeater gun (P-4) allegedly used in the incident was taken into custody from the house of the accused/appellant in respect thereof is concerned, however , at the risk of repetition, this Court may mention here that the accused had left his house after the occurrence. The complainant-Shaukat Ali (PW 11) deposed during cross-examination that, "Asghar Ali accused was not present at his house when the police arrived.
Volunteered Akbar accused was also not present. No one of inmates of the house was present but many people out of the village were present inside the house. There were numberless present in the house of accused when police reached there. The police remained there for about one hour . I remained there all the time as long as police stayed on the spot." Khalid Hussain, S.I. (CW-1)-Investigating Officer, deposed that he (CW-1) arrested the accused-Asghar Ali on 23-03-2006 and during cross-examination he (CW-1) deposed that, "One Tariq Naveed produced before me Asghar accused when I went to the village in order to arrest the accused." The accused-Asghar Ali cannot be expec ted to keep the 12 bore repeater gun (P-4) in his house when he (the accused-Asghar Ali) left his house after the occurrence and the investigating agency was tracing his (the accused-Asghar Ali) whereabouts. Dilshad Ahmad (PW-10), the recovery witness, deposed during cross- examination that, "My statement was recorded by the I.O at the spot. I got recorded in my statement to the I.O that Repeater P.4 and live cartridges P/5/1-5 were made into a sealed parcel. (Confronted with Ex.DB where not so recorded). I had not got recorded in my statement before the police that Asghar Ali also produced his license to the I.O. (Confronted with Ex.DB where it is so recorded)." Khalid Hussain, S.I. (CW- 1)-Investigating Officer, deposed during examination-in-chief that, "I took into possession empty cartridges of 12-bore and 30-bore pistols from the roof and court-yard spot vide memo Ex.CW1/B attested by the witnesses. The empties of 30-bore pistol are C.2/1-4 and empties of 12-bore pistols are C.3/1-8." Whereas, Muhammad Hanif, M.H.C (PW-1) deposed during court statement that on 03-03-2006 Khalid Hussain, S.I. (CW-1) - Investigating Officer, handed over to him (PW-1) sealed parcel of one empty of 12 bore gun. In this regard Muhammad Hanif, M.H.C (PW -1) deposed as under:- "On 3.3.2006 I was posted at police station Tarkhani as M.H.C. On the same day the I.O of this case Khalid Hussain S.I. handed over to me four sealed parcels pertaining to this case i.e. one containing one empty of 30 bore pistol, sealed parcel said to contain bloodstained earth, sealed parcel said to contain pistol and one empty of 12-bore gun, which were kept by me in police malkhana for safe custody . On 9.3.2006 I handed over the said parcels to Muhammad Asif Constable No.4580 for its onward transmission to the concerned of fice intact."
Muhammad Asif 4580-C (PW -2) deposed during examination-in-chief that, "On 9.3.2006 I was posted at P.S. Tarkhani on the same day Muhammad Hanif Moharrir H/C 3410 handed to me 4 sealed parcels said to contain bloodstained earth, 2. one empty 12 bore, 3. empties of 30 bore, 4. pistol 30 bore for onward transmission to the chemical examiner and Forensic Science Laboratory on the following day I deposited the parcel intact in the said of fice. I/O had recorded my statement u/s 161 Cr .P.C."
20. From the depositions of Muhammad Hanif, M.H.C (PW-1) and Muhammad Asif 4580-C (PW-2), it reveals that only one crime empty of 12 bore was handed over to the Moharrar by the Investigating Officer and the same was sent to Forensic Science Laboratory. On perusal of report of Forensic Science Laboratory (Ex.PL), it reveals that eight crime empties were received in the said laboratory on 10-03-2006. Whereas Muhammad Asif 4580-C (PW- 2) deposed that "on 09-03-2006 he (PW-2) deposited one crime empty of 12 bore." Thus, the report of Punjab Forensic Science Agency (Ex.PL), creates strong doubt as to whether the 12 bore crime empty analyzed by the Punjab Forensic Science Agency was the same which was handed over to Muhammad Asif 4580-C (PW-2). The above evidence offered by the prosecution thus cannot form the basis of conviction of Asghar Ali, the accused- appellant. The above inconsistencies and contradictions throw doubt upon the veracity of the entire case of the prosecution. The evidence led by the prosecution is neither worthy of credit nor confidence inspiring. As this Court found conflict and contradictions in the evidence of the prosecution witnesses and documentary evidence, hence, in such case, it cannot be held that the prosecution has proved its case beyond any reasonable doubt. So, the recovery of 12 bore repeater gun (P-4) on the disclosure of the appellant and positive report of Punjab Forensic Science Agency (Ex.PL) cannot be believed. The above evidence produced by the prosecution thus cannot be treated as corroborative piece of evidenc e and form the basis of conviction of the appellant. Reliance is placed on the case of "Mursal Kazmi alias Qamar Shah and others vs. The State" (2009 SCMR 1410 ) in which Hon'ble Supreme Court of Pakistan has observed as under: - "It is well-settled that one tainted piece of evidence could not corroborate another piece of tainted evidence because if this allowed to be done then very necessity of corroboration would be frustrated."
It appears that the prosecution suppresse d the true facts from the Court as discussed hereinabove in detail. Thus, due to non-availability of any other reliable and trustworthy evidence this Court is not inclined to rely on the recovery of weapon and its positive report. Though the death of Sakhawat Ali-the deceased is unnatural, this Court does not find that the accused is the author of the crime in question as medical evidence is in conflict with ocular account. This Court also does not think it necessary to look into the confession of the accused as it would not lead this Court to believe the prosecution case.
21. The next question that arises for consideration is whether the trial court did, in fact, use the statement of the accused against him in order to arrive at its decision. I have carefully considered the judgment of the trial court and this Court is of the opinion that the learned trial court has not relied on the statement of the accused for convicting him. However, the statement under Section 342 of Cr.P.C., as a whole is of an exculpatory character. It not only exculpates him (the appellant) from the commission of an offence but also exculpates Akbar Ali (since proclaimed offender). Asghar Ali-the appellant stated during his statement under Section 342 of Cr.P.C., which reads as under:- "I while exercising my right of self defence of person and property, I started firing, Zulfiqar, companion of the deceased, also started firing from my house. In the meantime, the deceased Sikhawat rushed towards the room where my sisters were present and made lalkara that my sister be abducted. Thereafter the deceased also made firing from the verandah situated in front of the room where my sisters were present. During the cross-firing, Sikhawat deceased received injuries in the verandah and fell in the adjacent room."
The statement contains self-exculpatory matter can not amount to confession. The defence stance of the appellant was that he (the appellant) did not inflict any injuries rather the appellant deposed that during cross-firing, Sakhawat Ali-the deceased sustained bullet injury . Asghar Ali-the appellant depo sed during his deposition under Section 340 (2) of Cr .P.C., which reads as under:- "The deceased Sakhawat Ali and Zulfiqar started firing at me and in my self-defence, I also fired at them. I jumped into the roof of my neighbourer Khushi Muhammad. Sakhawat Ali raised lalkara that my sisters be picked up and went towards room where my sisters were present. Zulfiqar also made firing from my house.
When the deceased Sakhawat Ali reach ed the courtyard of my house, he sustained bullet injury and fell on the ground of room where my sisters were present."
The position with regard to the evidence given by the appellant in his defence voluntary by stepping in the witness box as a witness, he (the appellant) is in the same position as an ordinary witness. The above statement of the appellant contains self-exculpatory matte r and the appellant denied his guilt, while appearing in the witness box.
Thus, the statement not being a confession and being of an exculpatory nature in which the guilt had been denied could not be used as evidence against the appellant to prove his case.
22. Admittedly the prosecution has failed to bring home the charges framed against the appellant. The statement under Section 342 and 340(2) of The Criminal Procedure Code 1860 could not be used as evidence in the case to prove the guilt of the appellant. There were so many omissions and contradictions in the evidence of prosecution witnesses affecting the entire fabric of the prosecution case. As discussed above, their (PW-11, PW-12 and PW-13) credibility , reliability and truthfulness are not above-board to put a worthy reliance upon the same. Moreover , appraisal of the prosecution evidence and the plea of the appellant-Asghar Ali in his statement recorded under Section 342 and 340(2) of Cr.P.C leads this Court to hold that the occurrence has not taken place in the mode and manner as alleged by the prosecution as well as the accused-appellant. On the other hand, the plea of the appellant-Asghar Ali was established during investigation but the prosecution witnesses denied the defence plea in totality . Even medical evidence is in conflict with defence plea. However , it is settled principle of law that the prosecution has to stand on its own legs. It was for the prosecution to prove the charges beyond any shadow of doubt. Moreover , the prosecution cannot take any benefit of defence plea when prosecution had brought incriminating evidence against the appellant and failed to prove the same. Reliance is placed on the judgment of the Hon'ble Supreme Court of Pakistan in the case of "Khadim Hussain vs. Mst. Mansab Mai" (2006 S.C.M.R 1142) and "Azhar Iqbal vs. The state " (2013 S.C.M.R. 383).
23. The motive set up by the prosecution in the F.I.R. (Ex.PF/2) and written complaint (Ex.PF) and deposed about it by the complainant-Shaukat Ali (PW-11), Riasat Ali (PW-12) and Khuda Dad (PW-13) have been found by this Court to have remained un-proved. The prosecution case in this regard was vague and can hardly inspire confidence. The complainant-Shaukat Ali (PW -11) deposed during examination-in-chief that:- "On 2.3.2006 Zulfiqar alias Nannah came to Sikhawat Ali my deceased son at about 3.30 p.m. and told my son Sikhawat that he had to take loan money from Asghar Ali accused presen t in Court. Both of them went to Asghar Ali accused and asked for the return of borrowed amount, to which Asghar Ali refused and a quarrel took place between them, which was resolved by the intervention of the people. Thereafter they returned to their respective houses.---The above mentioned facts were narrated to me by Zulfiqar P .W."
Whereas, during cross-examination, he (PW-11) deposed that, "I had got recorded in Ex.P.F that above mentioned facts were narrated to me by Zulfiqar PW . (Confronted with Ex.P .F where it is not so recorded)."
Whereas, Riasat Ali (PW-12) deposed during examination-in-chief that:- "I heard that a quarrel had taken place between Asghar Ali accused and Sikhawat Ali deceased on money matter ."
Whereas, during cross-examination he (PW-11) deposed that, "I had got recorded in my statement before the police that I had heard that quarrel had taken place between deceased and Asghar on money matter .
(Confronted with Ex.DA where quarrel on money matter is not mentioned therein)."
Likewise, Khuda Dad (PW -13) deposed during examination-in-chief that:- "On 2.3.2006 I came to know that a quarrel had taken place between accused Asghar Ali and Akbar Ali and Sikhawat Ali deceased and Zulfiqar but they were separated by the intervention of the people."
These facts, as deposed/stated, are appa rently the improvements. Nasir Abbas, Inspector (CW-2) deposed during cross-examination conducted by the learned counsel for the complainant that, "It is also correct to suggest that during my investigation it was found that motive part of the occurrence did not take place on the day of occurrence." In the circumstances, this Court came to the conclusion that the motive, as alleged, was an afterthought and has not been proved by any credible evidence.
24. This Court has considered all the pros and cons of this case and came to this conclusion that the prosecution could not prove its case against the appellant beyond any shadow of doubt. It is well settled law that if there is a single circumstance which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused. It is held in the case of "Muhammad Akram vs. The State" (2009 SCMR 230 ) that:- "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 SCMR 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."
25. In the light of above discussion, this Court is of the firm view that the prosecution has failed to prove its case against the appellant beyond any shadow of doubt, therefore, I accept the instant Criminal Appeal No. 519 of 2009 filed by Asghar Ali, appellant in toto. The conviction and sentence awarded by the learned Additional Sessions Judge, Faisalabad vide judgment dated 31.03.2009 is set aside and the appellant-Asghar Ali son of Arshad Ali alias Ashraf is acquitted of the charges in a case F.I.R. No.75 of 2006 dated 03.03.2006, offence under Sections 302, 34 P.P.C., registered at Police Station, Tarkhani, District, Faisalabad. The appellant-Asghar Ali son of Arshad Ali alias Ashraf is on bail. His surety stands discharged.
26. So far as Criminal Revision No.363 of 2009 seeking enhancement of sentence of respondent No.1 is concerned, for the above-stated reasons, the same has no weight, which is accordingly dismissed .