1. Through this consolidated judgment I, propose to decide Crl. Appeal No. 24/2014 and Crl. Revision No. 29/2014 both of which are directed against judgment dated 19-12-2013 passed by the learned Additional Sessions Judge, Vehari, in private complaint titled "Mst. Hayat Bibi v Ikram etc." under Sections 302/34/109, PPC.
2. Brief facts of the case are that Mst. Hayat Bibi (PW-8) filed a private complaint (Ex.PB) stating that she was a household lady. On 06-08-2011 her son Ghulam Mustafa went out of the house after breaking fast. He had just reached near the shop of Miraj Din Bhatti when all of a sudden Muhammad Imran (the Appellant) and Muhammad Ikram (since acquitted) came there riding a motorcycle and Intercepted him raising a lalkara. Muhammad Ikram was driving the motorcycle while Muhammad Imran who was armed with pistol was his pillion. As soon as the Complainant heard the noise she rushed to the door of her house. Zahoor Ahmad and Muhammad Saleem were also present in the street. Muhammad Ikram raised lalkara that Ghulam Mustafa should be taught a lesson because his brother Mumtaz had misbehavedYousaf a day earlier in Karachi.Muhammad Imran fired shots with his pistol which !lit Ghulam Mustafa on his head, chest and right and left arms. The Complainant raised hue and cry. The accused threatened that if anybody came close he would be done to death. Still PWs Zahoor Ahmad and Muhammad Saleem tried to apprehend them whereupon they fled from the scene leaving behind their motorcycle. Ghulam Mustafa succumbed to his injuries and died at the spot. The Complainant alleged that the motive behind this Qatal-e-Amd was dispute over land with Shakir Ali (since acquitted) father of Muhammad Ikrarn and Muhammad Imran. Ghulam Murtaza, the other son of the Complainant was working in Karachi and a-clay prior to the date of occurrence he had a quarrel with the son of Muhammad Shakir, namely Muhammad Yousaf, in Karachi. Muhammad Yousaf informed Shakir Ali and brothers Muhammad Imran, Muhammad Ikram and Munsab Ali about that incident. They came to the Complainant's house at the time of Asar prayers and threatened her that if Ghulam Murtaza did not tender apology to Muhammad Yousaf and dispute with respect to the property was not resolved in accordance with their wishes they would kill Ghulam Murtaza. The Complainant alleged that the accused persons had committed murder of Ghulam Mustafa in prosecution of common object. The Complainant informed the police which arrived at the site and on her statement recorded F.I.R. No. 251/2011 dated 06-08-2011 under Sections 302/109/34, PPC (Police Station Thingi, District Vehari). According to the Complainant, the police did not conduct the investigation of the case honestly and submitted challan only to the extent of Appellant Muhammad Imran. The other accused, namely, Shakir Ali, Munsab Ali and Muhammad Ikram were declared innocent. Dissatisfied with the police investigation she filed private complaint Ex. PB.
2. 3.After recording cursory statements of Complainant Hayat Bibi, Muhammad Saleem and Muhammad Aslam the learned Additional Sessions Judge found that prima facie a case was made out against the Appellant and his co-accused. He summoned them to face trial. During the trial the prosecution produced 10 witnesses. It gave up PWs Muhammad Aslam and Raja Zafar Iqbal/S.I. the former on the ground that he had been won over. After the completion of the prosecution evidence, statement of the Appellant under Section 342, Cr.P.C. was recorded. He was confronted with all the incriminating evidence brought against him during the trial which he refuted. When asked as to why the case was registered against him, he stated that there was a property dispute between Ghulam Mustafa deceased and his brother Murtaza (the 'other son of the Complainant living in Karachi) owing to which he had committed his murder. The Complainant had involved the Appellant and his co-accused to save Ghulam Mustafa. The Appellant did, not produce any oral evidence in his defence. However, he tendered copy of Warabandi of Chak No. 157/WB as Ex. DD and computerized copy of registration of Motorcycle No. KDI/9731 as Ex. DE in documentary evidence.
3. 4.On the conclusion of trial, the learned Additional Sessions Judge convicted the appellant under Section 302(b), PPC and sentenced him to imprisonment for life. He also ordered him to pay compensation in sum of Rs. 1,00,000/- to the legal heirs of Ghulam Mustafa under Section 544-A, Cr.P.C. In case of default in payment said compensation by him, he was to undergo simple imprisonment for a further period of six months. Benefit of Section 382-B of Cr.P.C. was also extended to him vide judgment dated 19-12-2013. By the same judgment the learned Additional Sessions Judge acquitted Muhammad Ikram, Munsab Ali and Shakir Ali extending benefit of doubt to them. Appellant Muhammad Imran has assailed this judgment in Crl. Appeal No. 24/2014. On the other hand, the Complainant has filed Crl Revision No. 29/2014 seeking enhancement of the sentence awarded to the appellant.
4. 5.Learned counsel for the appellant contended that the impugned judgment dated 19-12-2013 cannot be sustained inasmuch as it suffers from gross misreading/non-reading of evidence. He argued that, firstly, there was no eye-witness of the occurrence. The presence of the Complainant and Muhammad Saleem (PW-9) and Zahoor Ahmad (PW-10) at the place of occurrence was doubtful. Secondly, there were material contradictions in the statements of the prosecution witnesses. Thirdly, the medical evidence did not corroborate the ocular account. Fourthly, Motorcycle No. KDI/9731 which the prosecution alleged the appellant and Muhammad Ikram (the acquitted co-accused) had left behind belonged to Ghulam Murtaza, the brother of Ghulam Mustafa deceased. This fact falsified the entire prosecution story. Fifthly, recovery of the pistol P-1 and two live bullets P-2/1-2 from the appellant was not proved. And lastly, even the motive as alleged by the prosecution was not proved.
5. 6.On the other hand, learned DDPP assisted by the learned counsel for the Complainant argued that the prosecution had successfully proved its case against the Appellant beyond any reasonable doubt. Learned counsel for the Complainant added that the appellant had committed murder of Ghulam Mustafa in a brutal manner. He was not entitled to any leniency and was liable to be sentenced to death.
6. 7.I have heard the learned counsel and have gone through the record with their able assistance.
7. 8.The ocular account of this occurrence was furnished by Complainant Hayat Bibi (PW-8), Muhammad Saleem (PW-9) and Zahoor Ahmad (PW-10). Complainant Hayat Bibi was the mother of Ghulam Mustafa deceased. She reiterated the contents of her private complaint Ex. PB in her testimony recorded during the trial. It has been observed that she made material improvements in her earlier statement Ex.PA that she made to Hag Nawaz Inspector/SHO on the basis of which FIR No. 251/2011 was registered. In Ex.PA she specifically stated that the appellant fired shots at Ghulam Mustafa deceased with his pistol two of which landed on the left side of his head, two on the front of the chest, three on its left side and one on the right arm. In the private complaint Ex. PB she made a general statement that those fire shots hit Ghulam Mustafa deceased on his head, chest and the arms. This improvement ws purposely made with the intent to bring her statement in line with the post-mortem report. Likewise, she also introduced a new fact with a view to reinforce the motive she had alleged earlier stating that at the time of Asar prayer the appellant and his acquitted co- accused came to her house to threat her that they would kill Ghulam Mustafa deceased if Ghulam Murtaza (the other son of the Complainant) did not tender apology to Yousaf and the property dispute was not resolved as they desired.
8. 9.According to Complainant Hayat Bibi (PW-8), she was in the house when Ghulam Mustafa went out. The incident was so sudden that it was not possible that Complainant Hayat Bibi would come out of the house and witness the same. She might have come there after the killing.
9. 10.So far as Muhammad Saleem (PW-9) and Zahoor Ahmad (PW-10) are concerned although they were resident of the same vicinity, their presence at the place of occurrence at the relevant time was by chance. This fact was admitted by Muhammad Saleem (PW-9) himself in so many words in his cross-examination.
10. 11.The prosecution case is that the appellant was armed with a pistol while PWs Muhammad Saleem and Zahoor Ahmad were empty-handed. According to these PWs, on their intervention the appellant and Muhammad Ikram (his acquitted co-accused) fled from the scene leaving behind their motorcycle. This story seems improbable. However, even if it is assumed to be correct, the next startling fact is that the said motorcycle was not owned by the appellant or any of his acquitted co-accused. It was registered in the name of. Ghulam Murtaza, the son of the Complainant Hayat Bibi (PW-8) which is established from the record of the Excise and Taxation Department Ex.DE. The prosecution has no plausible explanation for the riddle as to how it came into the possession of the appellant.
11. 12.PWs Muhammad Saleem and Zahoor were closely related to the Complainant. The murder took place near the shop of Meraj Din Bhatti. In his cross-examination Zahoor Ahmad (PW-10) admitted that shops were open at the time of occurrence. Meraj Din Bhatti could have been a natural witness of the offence but he was not produced by the prosecution. A presumption under Article 129(g) of the Qanun-eShahadat Order, 1984, may be drawn against the prosecution that if he had been brought to witness-box he would not have supported its version. In a nub, the ocular account rendered by the prosecution has numerous snags and it does not inspire confidence. The mere fact that F.I.R. was promptly registered does not advance, the case of the prosecution in view of the lacunae discussed hereinabove.
13. The prosecution sought con oboration of the ocular account from the medical evidence. Dr. Gulzar Ahmad Nadeem (PW-1) performed autopsy of Ghulam Murtaza deceased on 6-8-2011. He found the following injuries on his dead body:-- 1.Two circular wounds each 2.cm x 1.2 cm incised on back of head 11 cm away from left ear. Margins were inverted and lacerated. These were entry wounds. In X-Rays of skull there were to large metallic pieces and some small metallic pieces with multiple fractures of skull bone.
12. 2.Three circular wounds each 2 cm x 2 cm around the left nipple of chest. Margins were inverted and lacerated. These were entry wound. In X-Rays no metallic piece was seen in the chest and on metallic piece was seen in the lower abdomen on left side.
13. 3.A lacerated circular wound with inverted margins on right forearm 8 cm above right wrist joint.
14. Size was 2 cm' x 2 cm. It was an entry wound.
15. 4.A circular wound 3 cm x 3 cm with lacerated and averted margins on back of right forearm 6 cm above right wrist joint. This was exit wound to Injury No. 3.
16. 5.Two lacerated wounds each 2 cm x 2 cm on front of right palm adjacent to each other. These were entry and exit wound.
17. A circular wound 2 cm x 2 cm with' inverted and lacerated margins on back of right shoulder. This was entry wound.
18. Dr. Gulzar Ahmad Nadeem deposed that there was blackening on all the above mentioned entry wounds. He opined that all the injuries were ante-mortem and was caused by fire-arm. The probable time be seen inju ries and death was within few minutes and that between death and post-mortem was within two hours.
14. The statement of Complainant Hayat Bibi (PW-8) Ex. PA is not in accord with the post mortem report. The prosecution witnesses deliberately improved their previous statements to align themselves with the medical evidence. Furthermore, since the prosecution has failed to prove the involvement of the appellant in this incident beyond reasonable doubt, it does not advance its case. It is a D settled law that medical evidence is only a corroborative piece of evidence. It only proves the seat of injuries, their nature and the weapon of offence used. It does not identify the person who caused them.
19. 15.The complainant and PWs Muhammad Saleem and Zahoor Ahmad deposed that the appellant had committed the murder of Ghulam Murtaza deceased with a pistol. As per post- mortem report, there were eight entry wounds on the body of Ghulam Murtaza deceased. However, only three crime empties were recovered from the scene. Subsequently, as Muhammad Yaseen 465-C (PW-3) deposed, pistol P-1 alongwith two live bullets P-2/1-2 were recovered from the Appellant. The prosecution did not exhibit any forensic report in evidence. Therefore, these recoveries are of no avail to it.
20. 16.Complainant Hayat Bibi (PW-8) alleged that the motive of the murder was a property dispute which was exacerbated by an incident which took place in Karachi one day prior to the day of occurrence when Ghulam Murtaza had a quarrel with Yousaf. The Complainant also alleged that the appellant and his acquitted co-accused had come to her house at Asar time, on the day of occurrence and had extended threats to her. However, the prosecution did not lead any evidence to prove the motive Ghulam. Mena was a vital witness to prove the incident which took place at Karachi and allegedly became the immediate cause of this occurrance. Ho too was not produced.
17. The prosecution has failed to prove the charge angaist the appellant beyond reasonable doubt. The testimonies of the eye-witnesses do not inspire confidence and there is no corroboration of the prosecution version from any quarter. The prosecution version is rather replete with doubts. It is a settled law that even a single doubt entitles an accused to the benefit of doubt.
21. Reliance is placed on "Tariq Pervez v. The State" (1995 SCM R 1345).
22. 18.For all the above reasons, this appeal is accepted and the impugned judgment dated 19-121013 is set aside. The appellant is acquitted of the charge. He is in jail. He shall be released forthwith if he is not required to be detained in any other case.