1. AALIA NEELUM, J.---Muhammad Zeeshan alias Papla son of Abdul Rauf, caste Gujjar, resident of Village Lalian, Tehsil Shakargar, District Narowal, the appellant along with Abdul Rauf (since acquitted) and Muhammad Tauseef (since acquitted) were involved in case FIR No.181 of 2011 dated 27.06.2011 registered under Sections 452,337-A(ii), 337-H(2), 302, 34, P.P.C., at Police Station Shah Gharib District Narowal and was tried by the learned Additional Sessions Judge, Shakargarh. The learned trial court seized with the matter in terms of judgment dated 25.02.2014, convicted the appellant under. Section 302(b), P.P.0 and sentenced to undergo life imprisonment. The appellant was also directed to pay Rs.5,00,000/- as compensation to the legal heirs of the deceased. In default thereof, the appellant would further undergo six months' S.I. The benefit of section 382-B of Cr.P.C., was also extended in favour of the appellant.
2. 2.Feeling aggrieved by the judgment of the learned trial court, the appellant has assailed his conviction by way of filing instant appeal.
3. 3.The prosecution story as alleged in the FIR (Exh.PC/1) lodged on the complaint (Exh.PC) of Muhammad Abbas-complainant (PW-4) is that on 27.06.201 the complainant (PW-4) was present at his poultry farm, situated at Mustafa Abad, where he (PW-4) received a call made by his paternal cousin Muhammad Ilyas intimating him (PW-4) about the assault made by the accused- Abdul Rauf (since acquitted) etc upon their house, resulting in causing injury to his (PW-4) paternal Aunt "Phuphu" (PW-6). The complainant (PW-4) along with Basit Ali (deceased) and Muhammad Shahbaz (PW-5) while riding on a motorcycle went towards Lalian. At about 1:00 pm when they reached in the house of their "Phuphu" (PW-6) they found her (PW-6) in injured condition. "Phuphu"
4. (PW-6) and her son told that Abdul Razzaq son of Muhammad Shafi, Caste Gujjar, Muhammad Tauseef (since acquitted), Abuzar (being juvenile tried separately), Zeeshan alias Papla sons of Abdul Rauf made firing upon their house and injured them with bricks. They took their Phuphu (PW- 6) for medical treatment. Paternal Aunt and he (PW-4) were on one motorcycle while Basit Ali (deceased), Muhammad Shabaz and Muhammad Ilyas were also with them on other motorcycle.
5. When they reached near the Girls Primary School, the accused armed with deadly weapons were standing there. On seeing them, the accused-Abdul Rauf (since acquitted) raised "Lalkara" that they would not be let alive. The accused-Muhammad Zeeshan alias Papla made a straight fire shot which hit on the forehead of Basit Ali (deceased), who fell down in injured condition. The accused made straight firing upon them but luckily they succeeded in rescue themselves. Basit Ali (deceased) was taken to Civil Hospital, Shakargarh in injured condition but due to severe condition, the doctor referred Basit Ali (deceased) to Lahore. Basit Ali (deceased) succumbed to the injuries on the way near Narowal.
6. The motive behind the occurrence was that some days prior to the alleged occurrence, quarrel took place due to drainage of water and on the day of occurrence the accused forcibly entered into the house and injured the "Phuphu" (PW-6) of the complainant (PW-4).
7. 4.The complaint (Exh-PC) along with MLC No.573 of 2011 of Mst.Rani Bibi, (Exh-PA) was submitted before Nadeem Tariq ASI/Duty Officer (PW-9) for registration of FIR (Exh-PC/1) by complainant (PW-4) whereupon FIR (Exh-PC/1) was chalked out by Nadeern Tariq ASI/Duty Officer (PW-9) and thereafter, he (PW-9) sent the complaint (Exh-PC) along with MLC (Exh-PA) and copy of FIR (Exh- PC/l) to Muhammad Akram Shahbaz S.I. (PW-12) for investigation through Muhammad Umar Hayat 381/C.
8. 5.On 27.06.2011 investigation of the case was entrusted to Muhammad Akram Shahbaz S.I. (PW-12), who visited the THQ Hospital Shakargarh, examined Basit Ali, injured of the case (deceased) and drafted application (Exh-PN) seeking permission to record statement of injured Basit Ali (deceased). After the death of Basit Ali (deceased) he (PW-12) prepared inquest report (Exh-PJ), injury statement (Exh-PK), application for autopsy (ExhPM) and handed over the dead body of Basit Ali (deceased) to Abdul Razzaq 316/c (PW-7) for postmortem examination. Muhammad Shahbaz S.I. (PW-12) inspected the place of occurrence, secured blood stained earth from the place of occurrence through recovery memo. (Exh-PD), collected four crime empties through recovery memo (Exh-PE). He (PW-12) also visited the place where Rani Bibi (PW-6) was injured, drafted rough site plans of both the places i.e. place of occurrence of Basit Ali-the deceased (Exh- PO) and place where Rani Bibi (Exh-PQ) received injury. After the autopsy, Abdul Razzaq 316/c (PW- 7) submitted postmortem report (Exh-PU/1), last worn clothes of Basit Ali (deceased) i.e. Qameez P- 5, Shalwar P-6, Bunyan P-7 which were taken into possession through recovery memo (Exh-PF) by the Muhammad Akram Shahbaz S.I. (PW-12). He (PW-12) recorded statements of PWs as well as Rani Bibi (PW-6). On the same day, he (PW-12) called Mirza Tahir Tasleem draftsman (PW-3), who inspected the place of occurrence, drafted scaled site plan (Exh-PB) on the direction of Muhammad Akram Shahbaz S.I. (PW-12) and pointation of PWs. On 10.07.2011 he (PW-12) prepared supplementary challan and submitted before the court. On 21.07.2011 accused Abdul Rauf (since acquitted), Muhammad Tauseef (since acquitted), appellant-Zeeshan and Abuzar (being juvenile tried separately) were arrested by Muhammad Akram Shahbaz S.I. (PW-12). Rs. 57000/- were taken into possession through recovery memo (Exh-PS) by Muhammad Akram Shahbaz, S.I-(PW-12) during the personal search of accused Tauseef (since acquitted). On 22.07.2011 accused Abdul Rauf (since acquitted) was sent to judicial lock up. On 24.07.2011 during the course of investigation, accused Tauseef (since acquitted), appellant Zeeshan and accused Abuzar (being juvenile tried separately) made disclosure regarding recovery. In sequel thereof, accused Tauseef (since acquitted) got recovered 12-bore gun P-8 and on unloading the same a live cartridge P-9, from his house which were taken into possession by Muhammad Akram Shahbaz S.I. (PW-12) through recovery memo (Exh-PG) and he (PW-12) drafted the rough site plan of the place of recovery (Exh- PG/1). Appellant Zeeshan got recovered pump action P-10 and on unloading the same two live cartridges P-11/12, from his house which were taken into possession by investigating officer/(PW-12) through recovery memo (Exh-PH). Similarly Abuzar got recovered drat P-12 which was taken into possession through recovery memo (Exh-PR). On 25.07.2011 accused Tauseef (since acquitted), appellant-Zeeshan and accused Abuzar (being juvenile tried separately) were sent to judicial lock up. On 27.06.2011 Muhammad Pervaiz S.I. drafted injury statement of Rani Bibi (Exh-PT) and on 29.07.2011 he (PW-12) got prepared report under section 173, Cr.P.C. from the SHO and submitted same in the court.
9. 6.Having found the accused guilty, the Investigating Officer (PW-12) submitted challan against the accused-Abdul Rauf (since acquitted), accused-Muhammad Zeeshan alias Papla and accused Muhammad Tauseef (since acquitted) while challan of accused Abuzar was submitted under The Juvenile Justice System Ordinance, 2000.
10. 7.After submission of challan, the learned trial court formally charge sheeted the appellant along with accused Abdul Rauf (since acquitted) and accused-Muhammad Tauseef (since acquitted) on 08.02.2012, to which they pleaded not guilty and claimed trial. The prosecution in order to advance its case produced as many as thirteen (13) witnesses.
11. 8.Ocular account of the occurrence in this case has come out from the statements of Muhammad Abbas (PW-4), Muhammad Shahbaz (PW-5) and Mst.Rani Bibi (PW-6). Dr. Sadia Noreen appeared as PW-2 and deposed that on 27.06.2011, at 04:00, she conducted the medical examination of injured-Rani Bibi (PW-6) and found following injuries on her person:--
1. A lacerated wound on the front of head frontal lobe 4cm above the right ear. Bone exposed.
12. OPINION: "X-Ray skull was advised. According to X-Ray film No.1519 and 1520. No fracture of bone was present.
13. The MLC is of my handwriting and bears my signatures that is Exh . PA .
9. Dr.Muhammad Faheem Ashraf, appeared as PW-13, firstly he conducted medico legal examination of injured Basit Ali (deceased) and found the following injuries on his person.
14. An oval lacerated wound 2 cm x 1 cm DNP with inverted margins, fresh bleeding is coming from the wound along with herniation of brain matter. No blackening around margin of the wound, present on right half of forehead 3 cm above right eye brow with right periorbital oedema. (Entry wound).
15. No other injury found on any part of the body.
16. PR 40 per minute. RR 12 Per minute. BP 50/10.
17. After Immediate resuscitation injured was referred LGH Lahore for expert management and operation notes.
18. Investigation. Advised.
19. 1.X-ray skull.AP and lateral. 2.CT Scan brain.
20. Carbon copy of MLC is handed over to Akram Shahbaz, S.I. Police Station Shah Gharib and Abdur Razzaq 316/C of Police Station Shah Gharib on 27.06.2011. Exh.PT is the correct carbon copy of MLC No.570/F/2011 which is in my handwriting and it bears my signatures.
10. On the same day i.e. on 27.06.2011 he (PW-13) again conducted postmortem examination upon the dead body of Basit Ali (deceased) and found the following injuries on his person:-- An oval lacerated wound 2 cm x 1 cm with inverted margin and bleeding coming from the wound along with herniation of brain matter. No blackening around margins, present on right forehead 3 cm above right the blow. No wound on any other portion of the body.
21. OPINION In my opinion, injury No.1 is ante mortem and is caused by the fire arm weapons. Death of the person occurred due to brain damage and massive bleeding. This injury is sufficient to cause death in ordinary course of nature.
22. PROBABLE TIME ELAPSED 1.Between injury and death, within three hours.
23. 2.Between death and postmortem within six hours.
24. REMARKS Diagram (Exh-PU) and postmortem (Exh-PU/1) are in my handwriting and it bears my signatures.
25. The statements of remaining prosecution witnesses are formal in nature.
26. 11.On 07.12.2013, the learned Assistant District Public Prosecutor gave up Ahsan Wahid and Abid Mahmood PWs. On 20.02.2014 after tendering report of the Chemical Examiner (Exh-PV), report of Serologist (Exh-PW), report of Fire Arms and Tool Marks examination (Exh-PX) closed the prosecution evidence.
27. 12.The appellant-Muhammad Zeeshan was also examined under Section 342 of Cr.P.C, wherein he opted to lead defence evidence i.e. copy of FIR No.04/2014 (EX-DA), attested copy of FIR No.10/2013 (EX-DB), attested copy of FIR No.84/2013 (EX-DC) and attested copy of FIR No.279/2013 (EX-DD) but refused to appear as his own witness in terms of section 340(2), Cr.P.C. in disproof of alle-gations levelled against him. While replying to a question that why this case is against him and why the PWs deposed against him, the appellant-Muhammad Zeeshan alias Papla made the following deposition:-- "I am real brother of Toseef accused and due to this reason I along with my father Abdul Rauf and brother Abuzar have falsely been implicated".
28. 13.The learned trial court after evaluating the evidence available on record in 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.
29. 14.Learned counsel for the appellant has argued that appellant is innocent; that he has been falsely roped in the present case and FIR has been lodged after consultation and due deliberation; that he has been involved as he is real brother of accused Muhammad Tauseef, who has been acquitted from the instant case. That medical evidence does not match with the ocular account.
30. That according to the contents of FIR, Basit Ali (deceased) died and then same was chalked out but evidence of Muhammad Akram Shahbaz S.I, (PW-12) speaks the different story which is big dent and fatal to the case of prosecution case; That FIR has been lodged with delay of 5-hours for which no explanation has been made; That according to report of Forensic Science Agency, crime empties do not match with the gun allegedly recovered from the appellant; Learned counsel for the appellant has finally submitted that the prosecution has miserably failed to prove its case against the appellant beyond any shadow, of doubt, thus, this appeal may be accepted and the appellant may be acquitted from the charge.
31. 15.On the other hand, the learned Deputy Prosecutor General for the State assisted by the learned counsel for the complainant have opposed the instant appeal and have submitted that the appellant has specifically been nominated in the FIR with specific role of causing fire arm injury resulted into death of Basit Ali (deceased); that there was no reason for false implication of the appellant; that testimony of the witnesses is worthy of credence having no shadow of doubt to disbelieve the prosecution version and as such learned trial court has committed material irregularities and illegalities While awarding life imprisonment to the appellant because when case is proved beyond any shadow of doubt then capital punishment must be awarded to the appellant. Lastly the learned counsel for the complainant has prayed for enhancement of his sentence from life imprisonment to death of the appellant.
32. 16.I have heard the arguments advanced by the learned counsel for the parties and have minutely perused the record available on the file.
33. 17.The occurrence had taken place on 27-04-2011 at 1.00 p.m. in the area of Mouza Lalian situated within the jurisdiction of Police Station Shah Gharib, District Narowal which is at a distance of 6 kilometer only from the place of occurrence.
34. Whereas FIR (Exh.PC/1) was got registered on the written statement of the complainant- Muhammad Abbas (PW-4) on 27-04-2011 at 5.30 p.m. The complainant-Muhammad Abbas (PW- 4) deposed during examination-in-chief that, "We took Basit Ali in an injured condition to THQ Shakargarh, where doctor referred him to Lahore. In a way near Narowal Basit Ali deceased succumbed to the injuries." Muhammad Shahbaz (PW-5) also deposed in similar lines. The testimony of the complainant-Muhammad Abbas (PW-4) and Muhammad Shahbaz (PW-5) was belied by medical as well as documentary evidence. From the Medico-legal report (Exh.PT) it reveals that injured-Basit Ali (since died) was brought to the hospital by Abdul Razzaq 316/C (PW- 7) and the patient was examined against the docket issued by the police through rapt No.11 time 1:30 p.m. dated 27-06-2011 and none else. Whereas injury statement (Exh-PT) was prepared by Muhammad Pervez S.I. at 2:00 P.M. Dr. Muhammad Faheem Ashraf (PW-13) during examination-in- chief has deposed about the brief history mentioned 18. It is clear from the medico-legal certificate (Exh.PT) that the injured was in the Medico legal report (Exh.PT) as under:-- BRIEF HISTORY "H/0 fight at about 1.15 p.m. today. The patient got injuries on forehead by fire arms as stated by the police in docket and also by the people who brought the injured to Emergency room. Police rapt No.11 dated 27.06.2011 and police constable is Abdul Razzaq 316/C."
18. It is clear from the medico-legal certificate (Ex.PT) that the injured was brought in the Hospital at 2:15 p.m. examined through police. Dr. Muhammad Faheem Ashraf (PW-13) during cross- examination has admitted that the time of arrival of the injured in the Hospital at 2:15 p.m. on 27- 06-2011. It is also relevant to mention here that Dr. Muhammad Faheem Ashraf (PW-13) deposed that he handed over carbon copy of the MLC (Exh.PT) to Akram Shahbaz SI and Abdul Razzaq 316/C of Police Station Shah Gharib. This fact also gets support from the Medico legal Certificate (Exh.PT).
35. The deposition of Dr. Muhammad Faheem Ashraf (PW-13) also gets support from the documentary evidence available on the record. On perusal of injury statement (Ex.PK) it reveals that same was prepared by Akram Shahbaz SI (PW-12) through rapt No. 11 at 1:30 p.m. on 27-06-2011 and at 02:15 p.m. MLC (Exh.PT) was issued by Dr. Muhammad Faheem Ashraf (PW-13). Whereas Akram Shahbaz SI (PW-12) moved an application (Exh.PN) for recording statement of the injured (Basit Ali- deceased) before Dr. Muhammad Faheem Ashraf (PW-13). Whereon, the latter declared the injured-Basit Ali (since deceased) not fit for statement at 02:30 p.m. Whereas Muhammad Akram Shahbaz (PW-12), the Investigating Officer, deposed during examination-in-chief that:-- "On 27-06-2011, I was posted at Police Station Shah Gharib. On the same day, case FIR No. 181 dated 27-06-2011 was entrusted to me for investigation. After the entrustment of case I visited the THQ Hospital Shakargarh and examined Muhammad Basit injured of the case, drafted application Exh.PN for obtaining permission of recording statement of injured Muhammad Basit."
36. Whereas Muhammad Akram Shahbaz (PW-12), the Investigating Officer, deposed during cross- examination that:-- "According to record I prepared injury statement of Basit Ali the then injured and now deceased.
37. None of the PWs recorded statement qua the occurrence at the time of preparation of injury statement of Basit Ali injured. According to record the complainant Abbas submitted application for registration of case at 5:30 PM."
19. Another important aspect of the case which cannot go un-noticed is that the postmortem examination of the dead body of Basit Ali-the deceased was conducted by Dr. Muhammad Faheem Ashraf (PW-13) on 27-06-2011 at 9:15 p.m. with delay of four (04) hours and fifteen (15) minutes from the time of lodging FIR (Exh.PC/1). If FIR was lodged at 5:30 p.m., then delay in conducting the postmortem examination was not explained by the prosecution. Dr. Muhammad Faheem Ashraf (PW-13) during the examination-in-chief stated that, "According to police paper, death of the person occurred at 3:30 p.m. on 27-06-2011. I received the dead body in the dead house at 5:45 p.m. on 27.06.2011, received the complete documents from police at 09:00 p.m. on 27-06-2011 and conducted the postmortem examination at 9:15 p.m. on 27.06.2011."
38. 20.Considering all these facts I have no hesitation in coming to the conclusion that the prosecution has not been able to prove on record that the FIR was recorded at the time at which it was claimed to have been recorded. The Hon'ble Supreme Court of Pakistan in the case of "Irshad Ahmed v. The State" (2011 SCMR 1193) held that:-- "We have further observed that the post-mortem examination of the dead body of Shehzad Ahmed deceased had been conducted with a noticeable delay and such delay is generally suggestive of a real possibility that time had been consumed by the police in procuring and planting eyewitnesses and in cooking up a story for the prosecution before preparing police papers necessary for getting a post-mortem examination of the dead body conducted."
39. 21.The First Information Report, in this case, was lodged after a delay of four hours thirty minutes from the time of incident, whereas when Basit Ali succumbed lastly was not mentioned in the application (Exh.PC). However, absence of the FIR description in the Inquest Report (Exh.PJ) and mentioning of the time and the date regarding receiving information of the incident as 27.06.2011 at 3:30 p.m also lead to the conclusion that the FIR was recorded with a delay and the FIR had not been recorded at the time at which it is claimed to have been recorded. Delay in lodging the First Information Report gives rise to the adverse inference, that the same was utilized for false implication of the accused, concoction of story and introduction of false witnesses. It is always insisted for prompt lodging of FIR in respect of the occurrence along with information regarding names of actual accused, role played by them and mode and manner of occurrence. Delay in lodging the first information report, quite often results in consultation and deliberation, which is a creature of after-thought. The prosecution failed to explain the delay in reporting the incident though the Police Station was only at a distance of eight miles. Hence this circumstance was taken, as the one, to raise 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.
22. Absence of the detail description of the FIR in the Inquest Report (Exh.PD) and non-mentioning of the place where death occurred or dead body was recovered or laying in inquest report (Exh.PJ) prepared by Muhammad Akram Shahbaz, S.I. (PW-12), the investigating officer, as it is necessarily be one of the factors to decide the genuineness of the version of the prosecution mentioned in written complaint (Exh.PC) and the FIR (Exh.PC/1) and also in the evidence of the complainant- Muhammad Abbas (PW-4) and Muhammad Shahbaz (PW-5). The evidence of Muhammad Akram Shahbaz, S.I.(PW-12), the investigating officer, who conducted the inquest and prepared inquest report (Exh.PJ) is relevant. The first question is from where the dead body was found, where it was laying and death occurred. Second question is when information of death was received.
40. Muhammad Akram Shahbaz, S.I. (PW-12), the investigating officer, deposed that inquest report (Exh.PJ) was prepared by him (PW-12), after the investigation was entrusted to him (PW-12) after lodging of the FIR (Exh.PC/1). He (PW-12) reached THQ hospital and prepared application (Exh.PN) for obtaining permission of recording E statement of injured Muhammad Basit-the deceased, after the death of Muhammad Basit-the deceased, he (PW-12) prepared inquest report (Exh-PJ).
41. Therefore when inquest report (Exh.PJ) was prepared, the investigating officer (PW-12) must be imputed with the knowledge of the contents of the FIR (Exh.PC/1) and its particulars and he must mention in column No. 1 that where death occurred and he must mention therein that earlier he prepared injury statement (Exh.PK) and he also moved an application for recording statement of the injured (Exh.PN). He must also be imputed with the knowledge that it was the police who took the injured to THQ Hospital, Shakargarh from where the Doctor, after examination, referred the injured to General Hospital, Lahore and thereafter Basit Ali died near Narowal. If that be so, Muhammad Akram Shahbaz (PW-12), the investigating officer, should have revealed the names of the complainant-Muhammad Abbas (PW-4) and Muhammad Shahbaz (PW-5) in column No.4 of inquest report (Exh.PJ). As the names of the complainant-Muhammad Abbas (PW-4) and Muhammad Shahbaz (PW-5) are not recorded so there is genuine doubt regarding the fact that whether they were present at the time when Muhammad Akram Shahbaz (PW-12), the investigating officer, prepared inquest report (Exh.PJ). In column No.12 of inquest report (Exh.PJ) the weapons used were mentioned firearms. The inquest report (Exh.PJ) establishes that the specific weapon used was not known at the time of preparation of inquest report (Exh.PJ). The contents of inquest report (Exh.PJ) establish that time of information regarding receiving information of death mentioned in column No.3 of inquest report (Exh.PJ) was 3:30 p.m. The contents of the inquest report (Exh.PJ) do not reflect that when inquest report (Exh.PJ) was prepared and from where dead body of Basit Ali-the deceased was sent with the requisition to conduct the autopsy through Abdul Razzaq (PW-7). Whereas Abdul Razaq 316/C (PW-7) deposed during cross-examination that:-- "Dead body of the deceased was handed over to me at Purana Bhangala and was laying on a cot in a vehicle. We straight away reached at Purana Bhangala from police station."
42. Muhammad Akram Shahbaz (PW-12), the investigating officer, deposed during cross-examination that:-- "It is correct that village Purana Bhangala is not place of occurrence. Muhammad Abbas, Muhammad Shahbaz PWs along with Muhammad IIyas, Muhammad Riaz, Abid Mahmood and Mushtaq Ahmad appeared before me at Purana Bhangala. According to my case diary dead body was present at Purana Bhangala at that time at the place of occurrence. According to case diary the village Lalian is not shown."
23. Hence when the place of occurrence or where dead body was laying or where inquest was prepared or weapon used, non-mentioning names of prosecution witnesses and number/particulars of the FIR were not disclosed in inquest report (Ext.PJ), when these omissions are to be appreciated in the light of the delay in lodging the FIR (Exh.PC/1), it casts serious doubt and also leads to the conclusion that the FIR was recorded with a delay and the FIR had not been recorded at the time at which it is claimed to have been recorded and also leads to the conclusion that the FIR was recorded with a delay and the FIR had not been recorded at the time at which it is claimed to have been recorded. Considering all these facts, I have no hesitation in coming to the conclusion that the prosecution has not been able to prove on record that the incident was reported at the time at which, it was claimed to have been recorded.
24. The occurrence is alleged to have taken place on 27-04-2011 at 1.00 p.m. in village Lalian. On that fateful day occurrence took place wherein Basit Ali was injured and later on succumbed to the said injury. The occurrence took place in two parts. First part of occurrence took place at the house of phophi namely Rani Bibi of the complainant-Muhammad Abbas situated at village Lalian at about 10/11 a.m. wherein Rani Bibi (PW-6) received injuries and second part of the occurrence took place on the path way near girls primary school. The prosecution failed to produce evidence regarding first part of the occurrence. Mst. Rani Bibi (PW-6), the injured of first part, got recorded her statement before the investigating officer (PW-12) at belated stage. Muhammad Akram Shahbaz (PW-12), the investigating officer, deposed during cross- examination that, <u>"Rani Bibi PW appeared before me on 30-06-2011 and she did not make any statement prior to 30-06-2011." </u> There is delay in recording the statement of Mst. Rani Bibi (PW-6) without there being any explanation for the same. Thus considering in the light of the surrounding circumstances, this inordinate delay in recording the statement of the material witness, casts a cloud of suspicion on the credibility of the entire warp and woof of the prosecution story. From the prosecution case, as emerging out of the evidence of the complainant-Muhammad Abbas (PW-4) and Muhammad Shahbaz (PW-5) and documents i.e. written complaint (Exh.PC) and FIR (Exh.PC/1), it transpires that the complainant-Muhammad Abbas (PW-4) boarded Mst. Rani Bibi (PW-6) on his motorcycle whereas Basit Ali-the deceased was on another motorcycle and then they left for hospital for medical examination of Mst. Rani Bibi (PW-6). Muhammad Akram Shahbaz (PW-12), the investigating officer, deposed during cross- examination that:-- "I have not shown the name of Rani Bibi PW in the inspection notes. I prepared un-scaled site plan of the place of occurrence on the pointation of PWs. I have not shown name of Rani Bibi PW in the un-scaled site plan on any point from where she witnessed the occurrence. According to point B I have shown only name of Muhammad Shahbaz PW along with the deceased on the motor-cycle at the time of occurrence. I have not shown name of Rani Bibi in the un-scaled site plan as well as in the notes from A to F. The scaled site plan Exh.PB was also prepared on the pointation of PWs as well as on my direction. Name of Rani Bibi was not shown in the scaled site plan Exh.PB, nor in the notes from A to F. I have given only note in Exh.PQ."
25. As per prosecution case, Mst. Rani Bibi (PW-6) was medically examined through Abdul Razaq 316/C (PW-7) on 27.06.2011 at 4:00 pm and medically examined by lady Dr.Sadia Noreen (PW-2).
43. Lady Dr.Sadiq Noreen (PW-2) deposed during examination in Chief that:-- "On 27.06.2011, at 04:00, I was present on duty as WMO, at THQ, Hospital Shakargarh. On the same day constable Abdul Razzaq 316/C, Police Station Shah Gharib, brought injured Rani Bibi widow of Ghulam Muhammad, age 65 years, female, resident of Lalian Motla TehsilShakargarh, District Narowal along with police papers. I conducted medical examination of injured lady".
44. Whereas Mst.Rani Bibi (PW-6) deposed during cross-examination that.
45. "I reached in the hospital at 11:00/12:00 p.m. After examining me and giving me first aid I relieved from hospital and returned home at about 01:00 p.m. again stated it might be 02:00 p.m. and then I remained in my house till night. It is incorrect to suggest that Abdul Razzaq, constable took me to the hospital and I then was medically examined".
26. These are circumstances which throw considerable doubt on the evidence of the complainant-Muhammad Abbas (PW-4) and Muhammad Shahbaz (PW-5) relating to taking Mst.
46. Rani Bibi (PW-6) to the hospital for medical treatment. The prosecution witnesses have twisted the facts with regard to the mode and manner of the occurrence in order to rope in the appellant in the present case.
27. The prosecution version is also not reliable as during site inspection the investigating officer- Muhammad Akram Shahbaz, S.I. (PW-12) collected four crime empties of 12-bore gun from the place of occurrence vide recovery memo (Exh.PC), the dimension of the injury (2 cm x 1 cm) was not result of 12 bore pump action gun. Dr. Muhammad Faheem Ashraf (PW-13), who conducted post mortem examination of Basit Ali-the deceased, deposed during cross-examination that, "Injury No.1 is caused probably by bullet because the metallic object which was recovered from the brain matter during autopsy was handed to the police after proper seal and signature." Even in the instant appeal, in site plan (Exh.PB and Exh.PB/1) place of firing by the appellant was shown 44 feet from the deceased from such distance, the injury with dimension of 2 cm x 1 cm on the person of the deceased with 12-bore pump action gun could not be caused. The dimension of the injury was not result of 12 bore pump action gun. This also creates doubt about the genuineness of the version given by the complainant-Muhammad Abbas (PW-4) and Muhammad Shahbaz (PW- 5). It is by now well settled law that medical evidence can only indicate that the deceased had lost his life due to certain injuries but it does not lead to the culprits. Reliance is placed on the judgment of august Supreme Court of Pakistan in the case of "Mursal Kazmi alias Qamar Shah and another v.
47. The State" (2009 SCM R 1410); wherein it was held as under:-- "---Medical evidence had only indicated that the deceased had lost his life due to fire-arm injury, but it did not lead to the culprits---No crime-emptieshaving been recovered from the spot, recovery of fire-arm from the accused was inconsequential---Accused were acquitted in these circumstances".
48. 28.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 in my opinion, the prosecution has failed to bring home the charges framed against the appellant.
29. I have noticed that 12 bore pump action (P-10) along with two live cartridges (P-11/1-2) was allegedly recovered on the disclosure of Muhammad Zeeshan, appellant-accused. The crime empties of 12 bore (P-1/1-4) were recovered by Muhammad Akram Shahbaz (PW-12), the investigating officer, from place of occurrence on 27-06-2011 but the report of Forensic Science Laboratory (Exh.PH) reflects that allegedly recovered 12 bore pump action (P-10) on the disclosure of Muhammad Zeeshan, appellant-accused was in working condition, therefore, there is no incriminating recovery in this case available on record to connect the appellant with the commission of offence.
30. The motive set up by the prosecution in the written complaint (Exh.PC) and FIR (Exh.PC/1) and deposed about it by the complainant-Muhammad Abbas (PW-4) have been found by me to have remained un-proved. The prosecution case in this regard was vague and can hardly inspire confidence. The complainant-Muhammad Abbas (PW-4) deposed during examination-in-chief that:-- "Motive behind the occurrence was a scuffle few days prior to the occurrence on the drainage of water. On the day of occurrence a brawl also took place"
49. Whereas the complainant-Muhammad Abbas (PW-4) deposed during cross-examination that:- "I got drafted application (Exh.C) from the Munshi of police station. At that time Muhammad Ishaq, Khalil Hussain, Muhammad Mushtaq and Nadeem were accompanied me. We went to police station at 05:00/05:30 p.m."
50. Mst. Rani Bibi (PW-6) deposed during examination-in-chief that:-- "We had a dispute of way with the accused, they did not allow us to drain our water. One or two days prior to the occurrence a dispute of way arose and scuffle took place that was patched up by the respectable."
51. Muhammad Akram Shahbaz (PW-12), the investigating officer, deposed during cross-examination that, "The motive of the occurrence is not related to the deceased Bash Ali or Abbas and Shahbaz PWs.
52. According to the prosecution case the dispute of drainage water was between Rani Bibi and Abdul Rauf but no such dispute was with the Basit Ali (deceased), Shahbaz and Abbas complainant. The dispute of drainage water relates to village Lalian whereas the complainant Abbas, Shahbaz and Basit Ali relate to village purana Bhangala which is situated at a distance of 7/8 K.M. from village Lalian. No independent witness was produced by Rani Bibi or complainant of the case qua the motive occurrence. I have not given any opinion qua the motive of occurrence. All the PWs are related inter se. I did not agree with the version of the complainant that Zeeshan made fatal injury to the deceased. I- formed this opinion after thorough and impartial investigation."
31. In the circumstances, I cannot avoid the conclusion that the motive, as alleged, was an afterthought and has not been proved by any credible evidence. Even the police officer who investigated the case namely Muhammad Akram Shahbaz (PW-12), the investigating officer declared the appellant to be innocent. There are other infirmities in the prosecution case also which throw a serious doubt on the prosecution case.
53. 32.Admittedly, co-accused-Abdul Rauf and Muhammad Toseef of the appellant have been acquitted by the learned trial court. There is no challenge to the acquittal of Abdul Rauf and Muhammad Toseef. It is settled principle of law that if evidence of the prosecution is disbelieved qua major portion of the accused persons it cannot be believed qua the other in the absence of very strong corroboration. Reliance is placed on the case law reported as "Akhtar All and others v.
54. State" (2008 SCM R 6). It has also been held by the Hon'ble Supreme Court of Pakistan in the case of "Iftikhar Hussain and others v. The State" (2004 SCM R 1185) that:-- "That eye witnesses who are disbelieved against some accused persons attributed active and effective roles cannot be believed against the other accused persons."
55. 33.In view of the above circumstances, the conclusion I arrived at is that there is no credible evidence to establish that Muhammad Abbas (PW-4), eye witness, has brought true facts before the court. The prosecution had badly failed to lead incriminating, corroborative/ independent evidence to bring home guilt of the accused. In this background, the benefit of doubt is to be extended in favour of the accused. In the case of Muhammad Akram v. The State (2009 SCM R 230), wherein it has been held as under:- "----Benefit of doubt---Principles--For given the benefit of doubt it is not necessary that there should be many circumstances creating doubts---Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefit, not as a matter of grace and concession, but as a matter of right."
56. 34.The upshot of the above discussion is that the prosecution has badly failed to bring home charge against the appellant beyond any reasonable doubt, therefore, in the interest of safe administration of criminal justice, Crl. Appeal No.1390 of 2014 filed by the appellant-Muhammad Zeeshan, is accepted in toto. The conviction and sentence awarded by the learned Additional Sessions Judge, Shakargarh, vide judgment dated 25.02.2014 is set aside and the appellant, Muhammad Zeeshan alias Papla son of Abdul Rauf is acquitted of the charge in a case FIR No.181 of 2011 dated 27.06.2011 under Sections 452,337-A(ii), 337-H(2), 302, 34 P.P.C., registered at Police Station, Shah Gharib District Narowal. 'The appellant-Muhammad Zeeshan alias Papla son of Abdul Rauf, who is in custody, is ordered to be released forthwith, if not required in any other case.