' QAZI MUHAMMAD AMIN AHMED, J.---Criminal Appeal No,83 of 2006 filed by Saqib Zeb, convict/appellant, Criminal Appeal No,94 of 2006 and Criminal Revision No,59 of 2006 filed by Muhammad Azam, complainant arise out of incident dated 01-05-2005 occurred within the area of Munawar Pur Beli situating at a distance of nine -kilometers from Police Station Saddar wherein Muhammad Ishtiaq, 22, hereinafter referred to as the deceased, was done to death while Mst.
Nabila Ishtiaq (PW-12) sustained firearm injuries in the backdrop of a motive relating to some previous exchange of abuses; Saqib Zeb alias Saqi, appellant herein, accompanied by Muhammad Iqbal and Sher Ali was arrayed as accused in the First Information Report Ex.PA/1 on the basis of statement Ex.PA of Muhammad Azam (PW-11) recorded by Nazar Muhammad SI (PW-14) at 9:30 p.m. In Civil Hospital Jhelum wherein it is alleged that on the eventful day, the accused named above, armed with rifles went on the rooftop of veranda of complainant's house and exhorted the deceased to come out; it is prosecution's case that Zubaida Begum (PW-13) went on the rooftop and beseeched the assailants to spare the deceased, however, without success; it was shortly thereafter that Muhammad Iqbal made two successive fire shots hitting Ishtiaq deceased on the left side of his neck followed by two fire shots by Sher Ali again on the left side of neck and 'left ear, who felled on the ground when Saqib Ali dealt him two fire shots hitting him on the left side of chest; as Nabila Ishtiaq (PW-12) came forward to rescue her husband, she was also injured by the appellant with a fire shot, landing on the left side of her abdomen. The deceased, in injured condition, was shifted to the hospital, however, he succumbed to his injuries on way. Autopsy was conducted by Dr. Anjum Riaz (PW-5) at 12:30 midnight on 2-5-2005. The Medical Officer noted nine firearm wounds, of them seven are designated as entry wounds, these are on the neck, chest, left clavicle and below left patella; one of the injuries was on left ear causing imputation of outer cartilage; the solitary exit is on the back of left leg. Injuries Nos.2 and 3, on the chest were opined to have caused the death, resulting into excessive haemorrhage and shock; these injuries were sufficient to cause death in the ordinary course of nature within half an hour after receipt thereof whereas time between death and postmortem was reckoned as between 12 hours. Dr. Maryam Ashraf (PW-9) medically examined Nabila Ishtiaq (PW-12) at 11:00 p.m. On 01-05-2005 and noted a gunshot entry wound 2 x 2 cm below iliac crest on the left thigh with its exit on left gluteal region. Dr. Mushtaq Ahmad Khattak (PW-6) medically examined Saqib Zeb appellant on 2-5-2005 at 9:10 p.m.
And observed a lacerated/penetrating circular shaped wound measuring 0.7 x 0.7 cm, going deeply invert on the outer and back aspect of right upper arm; its margins were blackened, accompanied by exit on the outer aspect of lower right upper arm; on a query solicited by Nazar Muhammad SI (PW-14) on 3-5-2005, the Medical Officer did not rule out the possibility of self- infliction through a friendly hand; probable duration of the injuries was estimated as 24 to 36 hours.
Through a supplementary statement, purportedly recorded the same day, number of accused was graduated from three to four when Sadaqat accused was added into the array of the accused with a 12-bore shot gun, effectively used in the occurrence; weapon assigned to the appellant was also substituted with a 30-caliber pistol. During spot inspection, besides taking other investigative steps, the Investigating Officer collected bloodstained earth, six casings of 44-caliber and two casings of 12-caliber secured vide inventories. The appellant was medically examined under a police docket on 3-5-2005, he was formally arrested on the said date where after on 11-5-2005, pursuant to a disclosure, he led to the recovery of 30-caliber pistol P-5. Asad Ali alias Sher Ali and Iqbal accused were arrested on 13-5-2005 and 16-5-2005 respectively; they led to the recovery of 44-caliber rifles; Sadaqat accused could not be arrested and stands proceeded against accordingly. After completion of investigation, the accused were sent to face trial before a learned Addl. Sessions Judge at Jehlum; they contested their indictment and claimed trial on 19-9-2005, pursuant whereto, prosecution produced as many as fourteen witnesses to bring home charge against them; of them Muhammad Azam (PW-11), Nabila Ishtiaq (PW-12) and Zubaida Begum (PW-13) furnished ocular account, which constitutes the mainstay of the prosecution. Anwar Ali/C (PW-7) deposited bloodstained earth and casings in the relevant offices on 6-5-2005 followed by weapons on 16-5-2005 and 24-5-2005, respectively. According to Forensic Science Laboratory Ex.PV, 30-caliber casings secured from the spot were found wedded with the weapon recovered on the disclosure of the appellant; forensic report qua rest of the recoveries is in the negative. The appellant confronted prosecution evidence with the following plea:- "All the prosecution witnesses are closely related inter se and have cooked up a false story. In fact on the day of occurrence at about noon time I was going to my home when Ishtiaq deceased met me in the street and asked me to help him to set his TV antenna and took me inside of his home all other inmates at that time were not at home. When I went to his bedroom to see the TV he started a blue film on that and took off his shirt and try to commit sodomy with me. I tried to ran away and he took out his gun to threaten me and to do sodomy with me. We both grappled and suddenly his wife also came from outside at the same moment he fired and the fire hit me and his wife simultaneously. I in a shock and under the danger of my honor and life had snatched his gun and fired at him and ran away from the spot. I went to the police station and informed about the occurrence Police made me to sit there and after the news of death of deceased police had fabricated this false case in connivance with complainant party. I am innocent. Whatever I did that to save my life and honor. I was alone at that time. All the accused are innocent and falsely involved in this case. The police has concocted the real facts even the first statement of Nabila injured was in my favour but the police subsequently had changed that to help the complainant. I am a poor man and complainant party is influential. Police also had concealed my medical board report x-ray etc. To help the complainant. All the recoveries are proved fake".
' The learned trial Judge; however, proceeded to convict the appellant under section 302 of the Pakistan Penal Code, 1860 and sentenced him to imprisonment for life along with payment of compensation of Rs,50,000/- or to undergo six months' SI in the event of default with benefit of section 382-B, of the Code of Criminal Procedure, 1898. There is no reference as to under which clause of section 302, P.P.C., the appellant stands convicted, however, given the quantum of sentence as imprisonment for life, the only inference, to be possibly drawn is that it is under clause
(b) as imprisonment for life is provided only thereunder. Muhammad Iqbal and Sher Ali, co- accused were acquitted from the charge. Convict's appeal as well as appeal filed by the complainant challenging acquittal of co-accused and revision seeking enhancement of sentence are being decided through this single judgment.
2. Learned counsel for the appellant in Criminal Appeal No,83 of 2006 contends that evidence disbelieved qua identically placed co-accused cannot be pressed into service to sustain charge against the appellant in the absence of independent corroboration, according to him, conspicuously lacking; that firearm injury sustained by the appellant does not find mention in the First Information Report and suppression of such a massive violence inflicted upon the appellant goes a long way to reflect upon the veracity of the prosecution case; that position taken by the appellant is nearer to the truth and as such merited acceptance. Lastly, it is argued that rejection of motive, by the learned trial Court, in itself supports the plea taken by the appellant which brings his case under exception provided in Section 100 of the Pakistan Penal Code, 1860. Contrarily, the learned Law Officer assisted by the learned counsel for the complainant has defended the impugned judgment and in addition thereto prayed for not only enhancement of sentence inflicted upon Saqib Zeb, appellant but also reversal of acquittal granted to the co-accused on the ground that plea taken by Saqib Zeb appellant is ludicrous on the face of it, as it is inconceivable that a person would make carnal attempt in the presence of his wife. It has been emphatically argued that statement of Nabila Ishtiaq (PW-12), an injured inmate of the house can be relied upon without demur; that according to the opinion furnished by Dr. Mushtaq Ahmad Khattak (PW-6) there existed possibility of self-infliction and as such receipt of injury is of no consequence; that report of Forensic Science Laboratory Ex.PV to the extent of Saqib Zaib appellant is in the positive and prosecution case founded upon ocular account is fully corroborated by medical evidence.
3. Heard. Record perused.
4. According to the case set up -in complaint Ex. PA, all the accused were carrying rifles and even Saqib Zeb appellant is unambiguously assigned repeated fire shots both to the deceased as well as to Nabila Ishtiaq (BW-12) with rifle. Recovery of a 30-caliber pistol P-5 at his instance is not consistent with a case originally structured in the complaint. The weapon is substituted with the help of a supplementary statement which also includes name of Sadaqat accused, initially missing in the crime report; he appears to have been inducted in the case after discovery of pellets from inside the dead body. All the three accused are assigned somewhat identical roles qua the deceased; Sadaqat subsequently added accused is assigned shot to the deceased with a 12- caliber gun. This portion of prosecution case has been disbelieved qua Asad Mehmood and Iqbal Hussain, co-accused. Dr. Anjum Riaz (PW-5) retrieved six pallets and one plastic cover from inside the dead body, made into a sealed box; there is only one exit wound observed on the dead body; this aspect of the medical evidence is not in line with ocular account spelling out fire shots by rifles and 30-caliber pistol at the hands of the -appellant and acquitted co-accused. During cross- examination on the medical officer, the sealed bottle was opened which contained six pallets with a metallic piece; this runs diametrically counter to the role assigned to Saqib Zeb appellant.
Substitution of weapon renders Forensic Science Laboratory report Ex.PV as meaningless; even otherwise, casings were dispatched subsequent to the arrest of Saqib Zeb appellant and as such the report is not of much help to the prosecution. Occurrence took place on 1-5-2005 whereas Saqib Zeb appellant was medically examined on 2-5-2005; it was no body's case on the said date that injuries suffered by him were result of self-infliction; on 3-5-2005 on a request made by the Investigating Officer, the Medical Officer expressed an opinion resting upon brink of a possibility.
After the learned Judge disbelieved the prosecution evidence qua two out of three identically placed co-accused, additional independent corroboration was required to consider same set of evidence to the detriment of Saqib Zeb appellant; rejection of motive and inconsequential recovery cannot qualify as independent corroboration. Supplementary statement for all intent and purposes is a statement under Section 161, of the Code of Criminal Procedure; it cannot be equated with the First Information Report nor can be read in extension thereof; it is also not in consonance with the brief facts of the case narrated in the inquest report Ex.PG; it clearly suggests that exercise undertaken at a later point of time than stated therein. Similarly, the appellant could not have been convicted after rejection of prosecution evidence merely on the basis of his statement recorded under section 342, Cr.P.C. Reliance is placed in the case of Azhar Iqbal v. The State (2013 SCM R 383); relevant portion whereof is advantageously below: the law is quite settled by now that if the prosecution fails to prove its case against an accused then the accused person is to be acquitted even if he had taken a plea and had thereby admitted killing the deceased. A reference in this respect may be made to the case of Waqar Ahmed v.
Shaukat Ali and others (2006 SCMR 1139) "
Insofar as statement of Nabila Ishtiaq (PW-12) is concerned, undoubtedly, she being wife of the deceased, having sustained a firearm injury was present at the spot, however, her presence, in itself, cannot be taken for granted that what she stated was the whole truth; she obligingly followed the line suggested to her by the family. On an independent scrutiny of her statement, her testimony does not fit within the framework of circumstances found otherwise incompatible with the stated prosecution positions. Receipt of a firearm, injury by Saqib Zaib appellant, defence plea given his younger age vis-a-vis the deceased, substitution of weapon initially assigned to him, graduation of number of accused from three to four, presence of pellets inside the body of the deceased, rejection of motive alleged in the crime report and inconsequential recoveries, render it highly unsafe to maintain the conviction which otherwise is not in consonance with the law declared in the supra case. Consequently, the appellant is extended benefit of the doubt; Criminal Appeal No, 83 of 2006 is allowed; the appellant is acquitted from the charge; he shall be set at liberty forthwith, if not required in any other case.
' As a natural corollary, Criminal Appeal No,94 of 2006 and Criminal Revision No,59 of 2009 stand dismissed.