SHAHID HAMEED DAR, J.---Wali Dad-appellant was held guilty under section 302(b) P.P.C. by the learned Sessions Judge, Khushab, vide judgment dated 9.3.2011 and sentenced to death with the direction to pay a sum of Rs.1,00,000/- to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C., in default whereof to undergo simple imprisonment for six months. His co- accused Haji Ahmad And Mian Ahmad were, however, acquitted of the charge on extension of benefit of doubt.
2. The condemned prisoner appealed against the judgment of the learned trial court. The complainant called in question the acquittal of Haji Ahmad And Mian Ahmad through P.S.L.A. No.72 of 2011. We have Another matter before us i.e. a murder refcrence No.143 of 2011 submitted by the learned trial court for confirmation of the death sentence of the appellant. We propose to dispose of all these matters together through this single judgment.
3. The facts, as unfolded by Muhammad Zahoor, complainant (P.W.8) in FIR (Exh.PG) are that his brother Muhammad Ashraf went to his agricultural land, situated in village Chuha on 25.12.2009 to irrigate the wheat crop; he learnt that An altercation had taken place between his brother And Wali Dad (appellant) over supply of water, pumped by the tubewell, whereon he along with his chachazad Ghulam Muhammad And bhanja Zafar Hayat went to see Muhammad Ashraf And reached there at about 7.30 p.m.; they all sat in a room, built at the said land, wherein lantern was lit; all of a sudden, Wali Dad (appellant), armed with pistol 12-bore, joined by his co-accused Mian Ahmad And Haji Ahmad, empty handed (since acquitted) entered the room And launched An attack; Wali Dad accused raised Lalkara that Muhammad Ashraf be taught a lesson for having insulted him, whereon Mian Ahmad And Haji Ahmad accused caught him from his arms; Wali Dad accused fired straight at Muhammad Ashraf through his pistol 12-bore, which landed at his left eye; on receiving this shot, he fell down badly wounded; he (complainant) And his companions raised alarm but they could not drew near fallen Muhammad Ashraf, as Wali Dad accused shouted that he would kill everyone who came close to him; the accused fled the spot raising Lalkaras; the occurrence was witnessed by him And his companions in the light of the lantern; Muhammad Ashraf succumbed to the injuries at the spot; the motive behind the occurrence pertained to a previous dispute having taken place about two hours before between Muhammad Ashraf (deceased) And Wali Dad And others over turn of water off a tubewell And Muhammad Ashraf had insulted them, due to which they felt injured; leaving the dead body at the spot, he went to the police station And on his statement, Rafi Ullah Khan SI (P.W.10) drew up FIR (Exh.PG), the same day at 10.00 p.m.
4. After registration of the case, Rafi Ullah Khan SI (P.W.10) carried out the investigation, reached the spot, inspected the dead body, prepared injury statement (Exh.PE), inquest report (Exh.PF) And despatched it to the mortuary for autopsy under the escort of Muhammad Arif 572/C (P.W.2); he collected blood stained earth from the place of occurrence vide recovery memo. Exh.PI; he secured pistol .12-bore (P5) from the nearby bushes vide recovery memo. Exh.PC, duly attested by Muhammad Aslam 141/C (P.W.3) And Muqarrab Khan 242/C (PW not produced); he inspected the venue of crime And prepared visual site plan (Exh.PJ); after postmortem examination of the dead body, Muhammad Arif 572/C (P.W.2) produced before him bloodstained last worn clothes of the deceased, which he took into possession vide memo. Exh.PB; he got prepared the site plan-in scale in duplicate (Exh.PA & Exh.PA/1) qua the place of occurrence by Sana Ullah, Patwari (P.W.1); he arrested the appellant on 11.2.2010, whereas his co-accused Mian Ahmad And Haji Ahmad were arrested on 16.1.2010. On completion of investigation, he submitted challan against the appellant And his acquitted co-accused whom he placed in column No.2 thereof.
5. The complainant (P.W.8) being dissatisfied with the investigation conducted by Rafi Ullah Khan SI (P.W.10), filed a private complaint (Exh.PH) on 18.2.2010 with the same allegations as contained in the FIR against the appellant as well as his aforesaid acquitted co-accused under section 302/34, P.P.C. before learned Illaqa Magistrate, which was onward entrusted to the learned Sessions Judge for trial of the accused in accordance with the law.
6. The learned trial court after necessary proceedings under section 200/202 Cr.P.C. summoned all the accused including the appellant to face the trial The private complaint (Exh.PH) was taken up first by the learned trial court to try the accused.
7. At trial, the prosecution in order to prove its case produced ten witnesses in all. The ocular account was furnished by Muhammad Zahoor complainant (P.W.8) And Ghulam Muhammad (P.W.9), who also stated about the motive part of the incident. The medical evidence was presented by Dr.Syed Gulzar-ul-Hassan Gillani (P.W.6), who conducted autopsy on the dead body of Muhammad Ashraf, at 7.00 a.m., on 26.12.2009, vide postmortem examination report (Exh.PD), with pictorial diagram (Exh.PD/1). He observed a single injury on the corpse, with the following description:- "1. A large entrance wound of firearm projectile size 7 x 5 cm on left orbit with cut and inverted margins, both burning and blackening present on and around the margins."
The medical officer opined that the injury was Ante-mortem and caused by firearm; it was sufficient to cause death in ordinary course of life, as it had badly damaged the brain, a vital organ of the body of the deceased. The probable time elapsed between injury and death was immediate, whereas between death And postmortem examination, it was eleven And a half hours.
Muhammad Aslam 141/C (P.W.3) deposed about the recovery of pistol .12-bore (P5) from nearby the place of occurrence vide memo Exh.PC; Rafi Ullah Khan SI (P.W.10) conducted investigation of the case, the detail whereof has been mentioned in preceding paragraphs. Rest of the evidence is almost formal in nature.
8. Learned Prosecutor tendered in evidence report of the Chemical Examiner (Exh.PK) And that of the Serologist (Exh. PL) And Announced the prosecution case closed.
9. After closure of the prosecution evidence, the appellant And his co-accused (since acquitted) were called upon to make statements under section 342, Cr.P.C. They controverted all the accusations, brought against them by the prosecution And professed their innocence. Their consistent standpoint while Answering the question, why this case against them and why the PWs deposed against them, was that the deceased And his family members had many An enemies in the area who might have killed the deceased And they had been falsely involved in this case merely on doubts and suspicions. None of the accused appeared as his own witness under section 340(2), Cr.P.C. to repel the charge against him, nor any one of them opted to produce Any evidence in defence.
10. The learned trial court after hearing learned counsel for the parties and taking into consideration the evidence available on record passed the impugned judgment, whereby the appellant was convicted And sentenced in the aforementioned terms, while rest of his accused were acquitted.
11. Learned counsel for the appellant has strongly contended that prosecution failed to establish the guilt of the appellant beyond any shadow of doubt during trial; the ocular account has been rendered by the chance witnesses, who had no earthly reason to be present at the spot at the relevant time of the occurrence; the only source of light, allegedly available at the place of occurrence was a lit lantern, which was not taken into possession by the Investigating Officer; the prosecution story could not be verified by the investigating officer (P.W.10) during the course of investigation, which fact stood admitted by him in his testimony; the delayed postmortem examination of the dead body of the deceased suggests that the FIR had been recorded much later than the time, shown at the tenor thereof; the recovery of pistol .12-bore (P5) from the place of occurrence lends no strength to the prosecution case as it was not sent to the office of Forensic Science Laboratory for the reason that the investigating officer failed to find Any crime empty from the spot; the motive alleged could not be proved during trial by the prosecution but learned trial court considered it An established circumstance on wrong premise; the learned trial court overlooked the fallacies of the case to hand down sentence of death to the appellant only on conjectures And surmises; the appellant has not committed the murder of the deceased, therefore, he may be acquitted of the charge.
12. Contrary to it, learned Deputy Prosecutor General Punjab has opposed this appeal with the submission that the ocular account is well supported by the medical evidence And other Ancillary pieces of evidence, which rendered the impugned judgment sustainable in the eyes of law without Any second thought. He has further contended that the impugned judgment does not suffer from Any legal infirmity, which may be sustained And appellant's appeal may be dismissed.
13. After hearing the learned counsel for the parties And perusing the record with their assistance, what immediately gathered is that Muhammad Zahoor complainant (P.W.8) did not feel satisfied with the investigation of the FIR case (Exh.PG), conducted by Rafi Ullah Khan SI (P.W.10), so he filed a private-complaint (Exh.PH) against Wali Dad (appellant) And his acquitted companions, Haji Ahmad And Mian Ahmad, wherein they all were tried by the learned trial court And on culmination of trial, the appellant was handed down the death sentence having been held guilty under section 302(b), P.P.C. This complaint was filed by the complainant about two months after the registration of the FIR (Exh.PG), the details of occurrence as mentioned therein were in line with the contents of the FIR with the embroidery that the police had spoilt his case, having joined hands with the accused-side who had the blessings of some political stalwarts behind them. The investigation conducted in the challan-case figured prominently during trial of the appellant in the complaint- case, as various recoveries made by the investigating officer during investigation were received as admissible pieces of evidence besides, postmortem examination report qua the dead body of the deceased was brought on the record as Exh.PD.
14. So far as registration of FIR (Exh.PG) at 10.00 p.m. on 25.12.2009 on the statement of Muhammad Zahoor-complainant (P.W.8) is concerned, it was Rafi Ullah Khan SI (P.W.10), who reportedly scribed it. The place of occurrence as per column No.4 of the FIR, was at a distance of about fifteen kilometers from police station Quaidabad (Khushab). The complainant (P.W.8) has contended in his testimony that he left for the police station to report the crime about one hour after the occurrence as he first went to his house to take motorcycle And then he proceeded to the police station, where he reached at about 10.00 p.m. Ghulam Muhammad (P.W.9) has stated in his testimony that Muhammad Zahoor (complainant) left the place of occurrence for the police station after about half An hour. Dr. Syed Gulzar-ul-Hassan Gillani (P.W.6), who was posted as medical officer at civil hospital Quaidabad (Khushab), performed autopsy on the dead body of Muhammad Ashraf deceased at 7.00 a.m. on 26.12.2009, about twelve hours after the alleged occurrence And about nine hours after the registration of the FIR (Exh.PG). The delay in postmortem examination of the dead body of the deceased, as to the time of registration of FIR., is massive And it leads to a noticeable curiosity, whether time of registration of FIR (Exh.PG) could be believed as 10.00 p.m., on 25.12.2009. The police station where above-said FIR was recorded was also situated in Quaidabad, like the civil hospital, where postmortem examination of the said dead body had been conducted on the following morning of the day of the occurrence. The delay of nine hours, in mentioned terms, causes eyebrow-raising And gives rise to a thought that the FIR may have been An Ante-dated And Ante-timed document. The police station And the civil hospital being in the same city would have ensured conducting of the autopsy on the dead body of the deceased without considerable delay after registration of the FIR. There exists every.reason to doubt if FIR (Exh.PG) had been recorded at 10.00 p.m. on 25.12.2009.
15. The bone of contention as alleged by the prosecution pertained to a previous altercation between Muhammad Ashraf deceased And Wali B Dad (appellant) over turn of tubewell water. The prosecution did not produce Any direct evidence to prove this particular aspect of the case. In the FIR And in the private-complaint, the complainant Muhammad Zahoor (P.W.8) had alleged that he learnt about the dispute between his brother Muhammad Ashraf And Wali Dad-accused over turn of tubewell-water, whereon he along with his chachazad Ghulam Muhammad (P.W.9) And maternal nephew Zafar Hayat PW (not produced) went to see Muhammad Ashraf. He, however, changed the stance in his testimony And contended that he along with his said companions went to his agricultural land at about 7.15 p.m. to provide meal to his brother Muhammad Ashraf (deceased), where he told them that he had a quarrel with Wali Dad (appellant) about two hours before. He categorically stated in his testimony that he And his companions did not know about the said quarrel before 7.15 p.m. His attention was drewn to his previous statement (Exh.PG) recorded under section 154, Cr.P.C. to confront him with the deposition, as to bring meal by him for his brother Muhammad Ashraf And it was found that he had not stated so therein. Ghulam Muhammad (P.W.9) also deposed about the motive incident, but in a different way. He stated that the previous dispute over the turn of water of the tubewell had taken place about four hours earlier.
He further stated that the complainant had told him about bringing meal for Muhammad Ashraf (deceased). He also contended that Muhammad Ashraf was given meal by all of them And he told them nothing except for inquiring from them as to purpose of their visit. Ghulam Muhammad (P.W.9) virtually added nothing to the raison-d'tre, rather he rendered it still hazier. Learned trial court has referred to a deposition of the Investigating Officer (P.W.10) to drew An inference that the motive stood admitted by the accused. The Investigating Officer had been ambiguously put a positive suggestion as to "a trivial dispute about the turn of water between Muhammad Ashraf deceased And Wali Dad accused", which was replied in affirmative by him, but it did not necessarily mean that the motive set up by the prosecution had been admitted as correct by the defence. The Investigating Officer categorically stated before the court that he did not find Wali Dad accused as guilty during the course of investigation. Both the witnesses of ocular account rendered divergent statements as to the factum of motive And they contradicted each other on the said score. In the FIR And in the complaint, the complainant (P.W.8) gave the only purpose of his visit to Muhammad Ashraf, by referring to the said quarrel between his deceased brother And the appellant, but he improved upon the said contention to change it with that of carrying food for him.
Mere fact that a witless suggestion of the defence had been Answered in positive by the Investigating Officer could not be held sufficient to prove the motive, set up by the prosecution. Had witnesses of the ocular account been confident of the veracity of the said motive, they needed not change it with the new one in the mentioned terms. The complainant stood plainly negated by Ghulam Muhammad (P.W.9) on the aspect of the motive incident. It can safely be held that the circumstances leading to the murder of Muhammad Ashraf were clouded in mystery And prosecution had merely groped in the darkness in this context.
16.Insofar as the meaningfulness of the ocular account tendered by Muhammad Zahoor- complainant (P.W.8) And Ghulam Muhammad (P.W.9) is concerned, suffice it to say, it is pregnant with many a discrepancies and self-contradictions. Muhammad Zahoor-complainant (P.W.8) happens to be the real brother, whereas Ghulam Muhammad (P.W.9) is the chachazad of the deceased. Both lived at quite a distance from the place of occurrence, which fact oozed from their own statements. Muhammad Zahoor (P.W.8) has stated that he lived at a distance of 2-1/2 kilometers from the spot And Ghulam Muhammad (P.W.9) has mentioned the said distance as three acres from the house of the complainant, which meant that his abode was situated almost at the same distance from the hot spot, like that of the complainant.
17.The occurrence of murder of Muhammad Ashraf took place at 7.30 p.m. on 25.12.2009. It is immensely cold And occasionally foggy in the month of December in the planes of Punjab. The days get shortened And nights lengthened in the winter-season. This cycle of the nature is generally seen in full swing in the month of December. The sun would set at about 4.45 p.m. And rise at about 7.00 a.m. in this part of the year. The people are seen offering Eisha prayer around 7.00 p.m. It all showed that the darkness would envelope the surroundings at 7.30 p.m. on a December night. The people living in the rural areas would usually love to be either near the fire-place or slip into the quilts or blankets when lying on the cots, in inclement weather. The complainant as per his assertion, given in the FIR (Exh.PG) And in the private-complaint (Exh.PH) had only one reason to brave the cold night but he changed it by introducing a new one, mentioned in the preceding lines.
This change of version reflects on the veracity of his claim that the occurrence of murder of his brother had taken place in his presence. The other eyewitness, Ghulam Muhammad (P.W.9) stated in his examination-in-chief that he together with Muhammad Zahoor-complainant And Zafar Hayat PW reached the room of the deceased at about 7.15 p.m., where he told them that he had An altercation with Wali Dad accused over the turn of water about four hours before. He contradicted himself in worst terms when he rendered a couple of Answers in the cross- examination to the effect that he And his companions had reached the place of occurrence at 7.50 p.m., where they delivered meal to Muhammad Ashraf, who inquired from them as to their visit And said nothing else. He further contended that he And his cronies were there for about fifteen minutes, when Wali Dad accused being armed with pistol, all of a sudden, reached there. It meant that the alleged occurrence took place after 8.00 p.m. The complainant (P.W.8), however, made the deposition that he along with his co-witnesses entered the room of the deceased at 7.30 p.m. And it was the time when Wali Dad accused armed with 'pistol .12-bore' joined by his co-accused stormed into the said room, where they committed his murder. According to him, the occurrence lasted for a "short time". The overall impact of his testimony is that it was all over for Muhammad Ashraf before 7.40 p.m. The depositions rendered by both of them do not inspire confidence nor they look much impressive.
18. Learned trial court has categorically observed in the impugned judgment that Wali Dad accused was not flanked by Anyone at the time of occurrence And he committed the crime single handedly. The co-accused of the appellant, Mian Ahmad And Haji Ahmad had been acquitted of the charge as testimonies tendered by the eye-witnesses (P.W.8 & P.W.9) were not wholly found trustworthy by the learned trial E court. The rejected testimonies of the said prosecution witnesses to the extent of acquitted co-accused, named as above, have been believed in And relied on by it without Any just cause. If eye-witnesses had spoken the truth And they had witnessed the occurrence, they could have easily overpowered the appellant And saved the life of Muhammad Ashraf. They, inclusive of the deceased, were four in number. If at all they all were there, this much strength would have been sufficient to challenge the lone accused. They did nothing except for watching the murder of ill-fated deceased like silent spectators. In fact they were neither present at the spot at the crucial hour nor they had witnessed the occurrence.
19. The availability of light or source of light at the place of occurrence is Another circumstance, which has been deposed about by the eye-witnesses in divergent And contradictory ways.
According to the complainant (P.W.8), the lit lantern hanged against the northern wall of the room of incident, whereas Ghulam Muhammad (P.W.9) mentioned about the eastern wall in this regard.
The complainant mentioned about presence of cot, bedding And some utensils in the said room, whereas Investigating Officer (P.W.10) found nothing of the sort therein. The eye-witnesses claimed that they witnessed the occurrence in the light of a lit lantern, which was not taken into possession by the Investigating Officer (P.W.10). The defence, however, committed Another stupidity while putting a positive suggestion to Investigating Officer (P.W.10), "that the burning lantern was the only source of light to determine the identification of accused or PWs." This particular Answer in affirmative by the Investigating Officer would not matter much as the line of cross-examination, followed by the defence qua this PW categorically suggested that the room of incident did not have Any lit lantern hanging against its wall, otherwise it would have been taken into possession as a corroboratory piece of evidence by the Investigating Officer. A mindless positive suggestion may not overweigh the line of the defence, being persistently followed by them throughout the trial of the accused, that Muhammad Ashraf had been done to death in the darkness of the night by some unknown person And Wali Dad-appellant had nothing to do with it. A positive suggestion having been replied in affirmative by a witness could not be considered or received as a corroborative piece of evidence. The suggestions have to be treated the suggestions only And not a substitute for substantive piece of evidence unless they can be proven through direct/indirect connecting evidence. A folly committed by the defence cannot be deemed sufficient to hold that the eye- witnesses had been present at the spot And they had witnessed the alleged episode. The ocular account furnished by Muhammad Zahoor (P.W.8) And Ghulam Muhammad (P.W.9) does not inspire much nor could it be relied on or considered trustworthy to sustain the impugned judgment.
20.There is Another important circumstance, which relates to recovery of pistol .12-bore (P5) from a place, just 1/1-1/2 karam away from the room of the incident. Had the eye-witnesses viewed Wali Dad appellant commit the murder of Muhammad Ashraf, they would have easily noticed the throwing of his weapon by him just close to the crime scene. This particular aspect adds to the preposterousness of the prosecution case. The appellant was not a foolhardy that he would commit the murder of the deceased in presence of his nears And dears And then throw his weapon just close to the spot so as to enable the prosecution to render it a piece of evidence against him. Having not observed the said pistol being thrown by the appellant close to the spot is Another important fact which badly dents the claim of the witnesses (P.W.8 And P.W.9) to have witnessed the occurrence with their own eyes. Their testimonies are, thus rejected being questionable And unreliable.
21.Insofar as medical evidence tendered by Dr. Syed Gulzar-ul-Hassan Gillani (P.W.6) is concerned, it hardly advances the prosecution case Any further, as it being a corroboratory circumstance, may only tell about the kind And nature of bodily injuries received by a living or dead person And the weapon used for infliction of such injuries, but it cannot identify the author or inflictor of the said injuries. The instant case is no exception, as regards the settled principles of law regulating the medical evidence.
22. The nutshell of the discussion made hereinabove categorically leads to conclude that the prosecution has badly failed to prove the charge against the appellant, he had been indicted for.
The impugned judgment has been passed merely on conjectures And surmises without having Any respect for the evidence available on the record or for the basic principles of administration of criminal justice. The reasons recorded by the learned trial court in recording conviction And sentence of the appellant are not sustainable, rather to be ignored And written-off straightaway.
Consequently, we accept this appeal, set aside the impugned judgment And acquit the appellant of the charge. He shall be released from the prison forthwith if not required to be detained in Any other case.
23. The death sentence awarded to the appellant is NOT confirmed And Murder Reference is Answered in the negative.
24. Insofar as P.S.L.A. No.72 of 2011 filed by the complainant Muhammad Zahoor is concerned, we, for the foregoing reasons, do not find Any substance therein And dismiss it accordingly.