FARRUKH GULZAR AWAN, J.--This single judgment shall dispose of the above captioned criminal appeals, earlier one filed by appellant Muhammad Tariq and the later by appellant Muhammad Imran, who were tried for the murder of Shahid Iqbal (deceased) and were convicted vide judgment dated 13.11.2010 passed by the learned Additional Sessions Judge, Kabirwala in case FIR No.27 dated 10.2.2009, under sections 302/ 324/ 337-A(i)/337-F(i)/148/149 of The Pakistan Penal Code (Act XLV of 1860), registered at Police Station, Haveli Koranga.
Muhammad Tariq, the appellant was sentenced as under:- Under Section 302(b), P.P.C.
Death and to pay the compensation of Rs.100,000/- to the legal heirs of Muhammad Shahid lqbal deceased recoverable as land revenue.
Muhammad Imran, the appellant was sentenced as under:-- Under Section 324, P.P.C.
Rigorous imprisonment for 10-years.
Under Section 337-A, P.P.C.
Imprisonment for 2-years as Taazir and to pay the fine of Rs.50,000/-, which shall be paid to Talib Hussain injured/PW-I1 recoverable as land revenue.
All the aforesaid sentences of Muhammad Imran were ordered to run concurrently.
2. Murder Reference No.220 of 2010 seeking confirmation or otherwise of death sentence of Muhammad Tariq shall also be decided through this single judgment.
3. Prosecution's case is based upon the crime report (Ex.PM) registered on the complaint Ex.PL of Rab Nawaz (PW-9) made on 10.2.2009 with the assertion that he went to see Shahid Iqbal, his son- in-law (Damad) at Chak No.9, Khagah. On the fateful day i.e. 10.2.2009 at about 8/9:00 a.m. he along with Shahid Iqbal went to the sugar-cane crops of Muhammad Sharif Arain where different persons were cutting upper parts of the sugar-cane including Muhammad Arif, who earlier had a quarrel with Imran, Irfan and Mazhar wherein Muhammad Arif received simple injuries. When the complainant along with Shahid Iqbal, Muhammad Arif and Talib Hussain was present at a plain piece of land near brick-kiln at 11:00 a.m., Muhammad Arif, Sajjad, Tariq Javed, Khan Muhammad, Sabir, Muhammad Yousaf and Muhammad Rafique, who were going towards sugarcane crops, came there on foot. Suddenly, Muhammad Tariq armed with rifle 7-MM and Khalid came on a motorcycle from the side of sugar-cane crop. Muhammad Imran armed with pistol 12-bore, Wan armed with Toki and Mazhar armed with Sota also came there from the same side. Muhammad Imran raised Lalkara to teach lesson to Muhammad Arif etc. for quarrelling in sugar-cane crop whereupon Muhammad Tariq made straight fire shots upon the complainant party which hit Shahid Iqbal on his both legs and knees and he fell down. Talib Hussain forwarded to save his son Shahid Iqbal whereupon Muhammad Imran fired with his pistol 12-bore which hit Talib Hussain on his right shoulder and he also fell down. On report of firing, people of the vicinity attracted to the spot whereupon all the accused persons fled away along with their respective weapons. Both the injured were shifted to Civil Hospital, Abdul Hakeem where Shahid Iqbal succumbed to the injuries.
Motive behind the occurrence, as stated above, was a quarrel between Muhammad Arif and In.ran etc. at about 8/9:00 a.m.
4. Dr. Amjad Ali (PW-5) conducted post mortem examination on the dead body of Shahid Iqbal deceased on the same day and observed following injuries:-- On External Examination i)A small lacerated wound 0.8 cnz x 0.5 cm at middle of popliteal fossa right leg, going upward and medially towards medial side of thigh. No burning or blackening are present. This is entry wound, the margins are inverted. ii)Two Lacerated wounds, one above other with everted margins, each is 2 cm x 1 cm on medial aspect of right thigh, lower part, 8 cm from popliteal fossa. This is continuation of injury No.) after probing. One wound is due to bullet, other due to bone pieces, which acted as bullet after striking of bullet and breaking of bone.
On Internal Examination This injury leads to break femur and major blood vessels and sever hemorrhage. A piece of bullet recovered. iii)A lacerated wound 0.8 cm x 0.5 cm x left thigh postero lateral border. Margins are inverted and wound is going inward and medially 8 cm from knee joint. iv)A lacerated wound 3 cm x 1.5 cm x set on medial side of left thigh 10 cm from knee joint. It is oval in shape with everted margins. This is continuation of injury No.3 after probing. On opening this injury led to fracture of femur and also rupture of major blood vessels. This is exit wound.
Probable time between injuries and death was within six hours and between death and post mortem with three hours. Ex.PE is the post mortem report and Ex.PE/1 is the diagram showing seat of the injuries.
5. Dr. Javed Ahmad Mehar (PW-4) conducted medico-legal examination on the person of injured Talib Hussain on the same day and made following injuries:- i) There was an oval shaped wound on front side of the chest. It was 1/2 x 1/2 cm. it was skin muscle deep. It was on the right side of the chest and 6 cm from the base of the neck. Margins were inverted and there was blackening on and around the wound. It was wound of entry. There was a hole on the right upper side of the Qameez, parallel to wound on the chest. There were multiple holes on the Qameez and around the wound. ii) There was a lacerated wound on the back of the upper side of the chest. It was 5 x 2 cm. skin muscled deep and it was 14 cm from right axilla. Fresh blood was coming from the wound. Edges of the wounds were everted and there was hole on the back side of the Qameez parallel to injury No.2. It was wound of exit.
Both the injuries were found fire arm injuries. Ex.PZ is the medico legal examination report.
6. Dr. Khalid Latif Rao (PW-15) produced ward report of Talib Hussain injured Ex.PBB and observed two injuries, one on the right back and the other on his right shoulder region.
7. The prosecution produced as many as 15-witnesses, gave up Muhammad Ameer Bashir, Sultan Mehmood, Sajjad Hussain and Baqir Ali No.738/C being unnecessary and also tendered report of Chemical Examiner Ex.PCC, report of Serologist Ex.PDD and report of Forensic Science Laboratory Ex.PEE in order to substantiate charge against the appellant. On conclusion of prosecution evidence, statement of the appellant was recorded under Section 342, Cr.P.C., who had denied his guilt and pleaded his false implication and thereafter, learned trial Court heard both the parties and proceeded to convict both the appellant supra and acquitted Mazhar Abbas and Khalid Pervaiz through the impugned judgment.
8. Learned counsel for the appellant has contended that the prosecution case is fraught with contradictions, inconsistencies and improbabilities and as such the learned trial Court has not appreciated that the prosecution has failed to prove its case beyond reasonable doubt; that so- called eye-witnesses are closely related to the deceased and there is no independent corroboration; that the medical evidence is inconsistent with the ocular account; that the recovery of weapon of offence is doubtful and the positive report of ballistic expert regarding rifle 7-MM is inconsequential as there is nothing on record to show that how this weapon of offence was deposited in the office of ballistic expert; that the said report is negative to the extent of pistol allegedly recovered from appellant Muhammad Imran; that motive is not directly attributed to the appellant and as such in this background, learned trial Court was not justified to award conviction to the appellants.
9. Contrarily, learned DPG for the State assisted by learned counsel for the complainant has supported the impugned judgment contending that the same is based on cogent, convincing and confidence inspiring evidence.
10.Heard. Record perused.
11. Ocular account in this case has been furnished by Rab Nawaz (PW-9), Muhammad Arif (PW-10) and Talib Hussain (PW-11), who constituted the mainstay of the prosecution with regard to all its salient features. Rab Nawaz complainant claimed himself in crime report Ex.PM to be father-in-law of Shahid Iqbal deceased. Muhammad Arif, PW-10 is maternal nephew of the complainant (cousin of the deceased) and Talib Hussain, PW-11 is father of the deceased. Rab Nawaz, PW-9 admitted during cross-examination that Maryam Bibi, wife of Shahid Iqbal deceased, is daughter of one Muhammad Yousaf, however volunteered that she is his adopted daughter. Muhammad Tariq, the appellant has been assigned the role of firing with his rifle 7-MM, which hit on the different parts of both legs of Shahid Iqbal deceased. None of the eye-witnesses could identify the number of fire shots attributed to any of the appellants. Dr. Amjad Ali, PW-5 observed four fire arm injuries i.e. one on right leg with inverted margins (entry wound), second on above the other one being continuation wound of injury No.! (exit wound), third on the left thigh with inverted margins (entry wound) and fourth on medial side of left thigh with everted margins as. exit wound of injury No.3.
The medical expen admitted during cross-examination that injuries Nos. 1 and 3 were result of pellet. The pictorial diagram Ex.PE/1 shows that both the said injuries Nos.1 and 3 were caused from back side. The assertion of the complainant is that appellant Muhammad Tariq fired with his rifle 7- MM towards them, which hit Shahid Iqbal deceased on different parts of his both legs and thereby claimed that all the injuries on the person of the deceased were bullet injuries caused from front side. Muhammad Latif, SI (PW-12) admitted during cross-examination that he had observed that injuries Nos.1 and 4 were sustained by Shahid Iqbal deceased on the back side of his leg and that he observed five injuries on the persons of deceased. Therefore, the eye-witness' account stands contradicted from the medical evidence as both the exit wounds on the person of the deceased were the pallet injuries, which fact was brought on record during cross-examination upon the medical expert and were caused from back side as is apparent from the pictorial diagram Ex.PE/1.
12. Dr. Javed Ahmad Maher (PW-4) conducted medical examination of injured Talib Hussain (PW- 11) and observed two injuries, one on the front right side of the chest with blackening (entry wound) and the other on the back of upper side of the chest (exit wound). According to the scaled site Plan Ex.PK, distance between appellant Muhammad Imran at Point No.4 and Talib Hussain injured PW-11, at point No.2, is 22-feet towards south whereas the said medical expert admitted during cross- examination that he observed blackening on the injuries, which suggested that the injuries were sustained within a distance of 2-3 feet. In the circumstances, medical evidence does not corroborate the oral version and casts serious doubt about the mode and manner in which the occurrence had taken place recovered rifle 7-MM (P-7) through recovery memo Ex.PH and on the same day Muhammad Imran got recovered pistol P-9 through recovery memo Ex.PJ. The investigating officer handed over parcels containing said fire arm weapons to Muhammad Aslam 871/HC (PW-14) for safe custody, who handed over the same to Noor Muhammad constable for its onward transmission to the office of Ballistic Expert but said Noor Muhammad No.16/C while appearing as PW-2 before the learned trial Court deposed that he transmitted the empty bullets, empty cartridges and one sealed phial on 18.2.2009 in the office of Forensic Science Laboratory.
From his deposition, it is clear that he did not deposit the said fire arm weapons in the office of Forensic Science Laboratory. Moreover, Muhammad Aslam No.871/HC (PW-14) admitted during cross-examination that his statement under Section 161 Cr.P.C. was recorded by the Investigating Officer regarding handing of parcels of rifle 7-MM and pistol 12-bore but said statement was neither provided to the appellants under Section 265-C, Cr.P.C. nor the same was found in the police file. It is a statutory right of an accused under Section 265-C(c) to be provided the statements of all witnesses recorded under Sections 161 and 164, Cr.P.C. and omission to comply with the said provisions of law, would vitiate the whole trial and that being so because the accused without having recourse to the record, would not be in a position to set up his defence. Reliance in this respect is placed on case titled "Nadeem Ahmad Khan and others v. The State (2007 PCr.LJ 233 [Karachi])". Therefore, when the transmission of weapons to offence to the Ballistic Expert is shrouded in mystery, how the positive report of Ballistic Expert can be used against an accused. 13.
We have observed that Muhammad Latif, SI (PW-12) conducted spot inspection on 10.2.2009 and took into possession two.
13. A empty bullets of rifle 7-MM, (P-10//1-2) vide recovery memo Ex.PR and two empty bullets of pistol 12-bore (P-11/1-2) vide recovery memo Ex.PS. He also secured four empty bullets of 7-MM (P- 2/1-4) from a distance of about 10-acres from the place of occurrence vide recovery memo Ex.PT.
None of the eye-witnesses could identify the number of bullets fired by the appellants and even they did not utter a single word regarding the factum of firing with rifle 7-MM, at a distance of ten acres from the place of occurrence. Rab Nawaz, PW-9 admitted during cross-examination that the accused persons also fired at Arif (PW-10) but only two empty bullets of pistol 12-bore (P-11/1-2), which hit Talib Hussain injured (PW-11), were recovered from the spot.
14. So far as the recovery of weapons of offence from the appellants as well as report of Ballistic Expert is concerned, on 26.2.2009 Muhammad Tariq appellant got.
15.Moreover, report of Ballistic Expert (Ex.PEE) to the extent of pistol 12-bore for its matching with the crime empties is negative one and as such the recovery of pistol from appellant Muhammad Imran is inconsequential. Though said report is positive to the extent of rifle 7-MM for its matching with the crime empties yet the same is inconsequential especially, when the prosecution could not establish even its deposit to the office of Ballistic Expert beyond any shadow of doubt and as such the same is also inconsequential.
16. So far as motive is concerned, the case of the prosecution is that quarrel between Muhammad Arif (PW-10) had a quarrel with and Imran appellant on the same day at about 8/9:00 a.m. The motive is not directly attributed to the appellants. The appellants were having no motive against Shahid Iqbal deceased. Even otherwise, motive even if taken as correct, would not improve the case of prosecution in view of non-availability of convincing ocular account.
17. There is yet another aspect which detracted from the evidence on record that Muhammad Raza Khan, SI (PW-13) admitted during cross-examination that Arif (PW-10) was arrested and rifle 222-bore was recovered from him and a case under section 337-H(ii), P.P.C. read with section 13 of The Arms Ordinance, 1965 was registered against him. He further admitted during cross- examination that he mentioned in his case diary No.14 dated 27.2.2009 that Arif PW-10 had disclosed and led to the recovery of 222-bore rifle from his house, which is at a distance of one acre from the place of occurrence. Arif 4PW-10) also admitted during cross-examination that a 222-bore rifle was allegedly recovered from him during investigation. The said factum was suppressed by all the eye-witnesses in their deposition recorded before the learned trial Court.and it can safely be presumed under Article 129 of the Qanun-e-Shahadat Order, 1984 that the truth lay on the other side and not on the part of the prosecution.
18. To sum up, the ocular account in this case does not find support from the medical evidence, recovery of crime empties from the place of occurrence, distance between the assailants and the injured PWs and recovery of illicit fire arm from Arif (PW-10). We have remained unable to place implicit reliance upon the statements made by the eye-witnesses before the learned trial Court in the aforesaid peculiar circumstances of the case. A conclusion is unavoidable and irresistible that the prosecution has failed to prove its case against the appellants beyond reasonable doubt. The appellants deserve benefit of doubt as a matter of right and not as of grace. Reliance can be placed on case titled "Tariq Pervez v. The State (1995 SCM R 1345)", wherein at page No.1347, it has been held as under:-- "For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If circumstance creates reasonable doubt in a prudent mind about the guilt of accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right."
19.In view4of above discussion, both the appeals in hand are allowed, impugned judgment dated 13.11.2010 is hereby set aside and the appellants are acquitted of the charge. Muhammad Imran, the appellant is on bail, his bail bonds as well as surety stands discharged From the liability.
Muhammad Tariq, the appellant is in custody and shall be released forthwith, if not required in any other case.
20.Death Sentence awarded to Muhammad Tariq, the appellant is not confirmed and Murder Reference No.220 of 2010 is answered in negative.