MOHAMMAD IBRAHIM KHAN, J.---By our comutual findings Cr.A. No,58/2010 (Mir Afzal v. State and Mst. Nasim Bibi), Cr. A. No, 62/2010 (Mir Afzal v. The State) and Cr.R. No,9/2010 (Mst. Nasim Bibi v. Mir Afzal) through this singled-out judgment are disposed of. The criminal appeal preferred by Mir Afzal and criminal revision of Mst. Nasim Bibi are arising out from the judgment dated 22.02.2010 in Sessions Case No,19/07 of 2008 while the other criminal appeal of Mir Afzal is against the judgment of even date in Sessions Case No,20/7 of 2008 respectively.
2. Mir Afzal accused/appellant was indicted under allegation that on 23.01.2008 at 15.30 hours, he while duly armed with pistol in Kaghan Bazar near the shop of Ashraf which falls within the criminal jurisdiction of Police Station Kaghan opened fire at the person of Ashiq Hussain deceased. These fire shots proved effective. The deceased was hit on his left ribs and left thigh who succumbed to the injuries and thereby was formally charge sheeted under section 302, P.P.C. while in the later Sessions case trial, on 25.01.2008 accused Mir Afzal was apprehended in connection with the murder occurrence reported against him vide FIR No,3 dated 23.01.2008 of Police Station Kaghan and upon his search 30 bore pistol with loaded magazine bearing number nil along with one round unlicensed was recovered as weapon of offence and was charged under Section 13 A.O.
3. In both the cases the accused did not plead guilt and claimed the trial.
4. In the Sessions trial No,19/7 of 2008 in order to bring home the charges, prosecution examined PW.1 Syed Waqar Hussain witness of the occurrence. PW.2 Faisal another witness of the occurrence.
PW.3 Muhammad Yousaf who registered the case in shape of FIR which is Ex. PA, PW . 4 Constable Abdul Sattar who escorted the dead body of the deceased Ashiq Hussain to the hospital for postmortem examination. PW.5 Azhar Shah, marginal witness to the recovery memo Ex.PW3/1. PW. 6 Muhammad Gulzar IHC another marginal witness to the rest of the recovery memos whereby on personal search of the accused one 30 bore Pistol (P1) pak made without number loaded with one cartridge (p2) was recovered from his Bada Shalwar, the recovery memo is Ex.PW6/1. PW.7 Mst.
Nasim Akthar who is mother of the deceased Ashiq Hussain who has come up with lodging of the First Information Report. PW.8 Dr. Saeed Ullah who conducted the Post-Mortem examination of the dead body of deceased Ashiq Hsusain Shah which is EX.PW8/1, he found the following:-- External examination:-- About 25 years old, dead body of Ashiq Hussain is stout and clothes were stained in blood and having hole.
1. Entry wound:-- An entry wound on the Lt lateral side of chest about 1 inch in diameter with inverted edges at the level of about 6yh rib below the arm pit.
2. Exit wound:?
There is an exit wound on the Rt lateral 'side of chest with inverted edges at the level of about 6th rib and size of the wound is about 2 inch in diameter.
3. There is a superficial wound on Lt thigh only skin deep with inverted edges about 1-1 1/2 inch in length.
PW.9 Muhammad Zaman, marginal witness to the remaining recovery memo through which various articles of the deceased were taken into possession. These are from Ex.P1 to Ex.P7 while the recovery memo is Ex.PW9/1. PW.10 Makhdoom Hussain Shah Circle Inspector, who recorded report in respect of the occurrence and prepared injury sheet and inquest report EX.PW10/1 and EX.PW10/2 respectively. He is also author of Murasila Ex.PW7/1.
PW.11 is Khan Afsar who identified the dead body. PW.12 Mukhtar Ahmed who has conducted investigation, prepared site plan EX.PW12/1, he is also the author of application Ex.PW12/2, report of arm expert Ex.PW12/3 and has received the FSL report Ex.PW12/4. He has also obtained police custody of accused vide application EX.PW12/6, prepared the pointation memo EX.PW12/7, produced the accused for Confessional statement vide application Ex.PW12/8, remanded the accused to judicial lockup vide application Ex .PW12/9 and Ex.PW12/10 pertains to the parcels containing empty Pistol, blood stained cotton, garment of the deceased which were sent to the FSL.
The dead body was handed over to the legal heirs vide application Ex. PW12/12 . PW.13 Niaz Ahmed who was entrusted with the parcels containing blood and blood stained articles sending to the FSL.
All the rest prosecution witnesses were abandoned. Accused Mir Afzal was examined under section 342, Cr.P.C. who negated his involvement for the murder of deceased Ashiq Hussain.
5. In the other trial held in Sessions Case No,20/7 of 2008 the prosecution had examined PW.1 Muhammad Yousaf, PW.2 Muhammad Gulzar. PW.3 Mukhtar Khan S.I. while all the rest prosecution witnesses were abandoned and likely the accused was examined under section 342, Cr.P.C. who also in this trial negated the recovery of pistol from his person and posed innocence.
6. We have afforded a fair opportunity to learned counsel for the accused/appellant, learned counsel for the complainant and learned AAG for the State and with their assistance we have gone through the entire record.
7. In his viewpoint, learned counsel for the accused/appellant referred to 2006 YLR 3070 (Mst.
Kausar Bibi v. The State), 2004 YLR 1469 (Khando alias Abdur Rehman v. The State), 2004 YLR 216 (Gul Muhammad v. The State), 2007 YLR 470 (Muhammad Panjal v. The State), 2002 PCr.LJ 377 (The State v. Tawab and another), 2007 PCr.LJ 1371 (Mirza Khan v. The State), 1983 SCMR 1292 (Bagh Ali v.
Muhammad Anwar), PLD 1994 SC 178 (Abdul Subhan v. Rahim Bakhsh), 1977 SCMR 393 (Haqnawaz v. Sultan Khan), PLD 1974 Karachi 274 (Nazir Muhammad v. The State), 1980 SCMR 889 (Mardan Ali v. Gulistan), in view whereof, prayed for acquittal of the accused.
8. Repelling these arguments learned counsel for the complainant referred to the wisdom contained in 1999 SCMR 1991 (Muhammad Afzal v. The State), 2006 PCr.LJ 174 (Babar Shah v. The State), 2004 PCr.LJ 1684 (Nazir Muhammad v. The State), 1996 MLD 1665 (Murad Khan v. The State), 2007 SCMR 1427 (Israr-ulHaq v. Muhammad Fayyaz), 2010 SCMR 166 (Muhammad Farad v. The State), 2007 SCMR 1519 (Zahoor Ahmed v. The State), 2006 SCMR 33 (Liaqat v. The State), PLD 1995 SC 46 (Mushtak v. The State), 2003 SCMR 554 (Muhammad Basharat v. The State), 1998 SCMR 2669 (Jaffar Ali v. The State), 2002 SCMR 984 (Fazal Ahmad v. The State), 2002 SCMR 1578 (Dosa v.
The State), 2009 SCMR 523 (Nazir Ahmed v. The State), 2008 SCMR 1228 (Abdul Majeed v. The State), 1998 SCMR 1823 (Sardar Khan v. The State), PLD 1993 SC 895 (Muhammad Hanif v. The State).
Learned counsel for the complainant stressed for maintaining the judgment of the learned trial Court in both the Sessions Cases for outright dismissal of appeals of the accused/appellant.
9. In this case PW.7 Mst Nasim Akhtar who is the mother of deceased Ashiq Hussain narrating the occurrence that when she was present in house, her son Fahad Hussain Shah came and informed that his brother Ashiq Hussain was murdered near the shop of Ashraf on Kaghan Road. This happened because of the altercation took place between him and accused Mir Afzal. The latter took out his pistol from the fold of his shalwar and fired two shots which proved effective hitting the deceased on left side ribs, chest which too hit him on the right arm and the second fire was received by the deceased on left thigh. All those who witnessed the crime were Fahad Ali Shah, Waqar and Faisal. Out of the witnesses of ocular account Waqar was examined as PW.1 and Faisal has been examined as PW.2. The matter was reported to PW.10 Makhdoom Hussain Circle Inspector Balakot who on receiving the information about the quarrel in between Ashiq Hussain Shah and Mit Afzal, rushed to the place of occurrence when reached Khanian he founc Mst. Nasim Bibi who had brought the deac body of her son in a Jeep. Her report was reduced into writing vide murasila EX.PW7/1 which was sent for registration of the case to p.w Muhammad Yousaf, Muharrir Police Station Gharhi Habibullah.
10. For a more specific finding about the death of deceased Ashiq Hussain at the relevant time whether before he was taken to the hospital or at a latter stage the deceased then injured died in the hospital. In order to ascertain this fact, we have to go by the statements of PW.1 Waqar Hussain, PW.2 Faisal, PW.7 Mst. Nasim Bibi, PW.10 Makhdoom Hussain Shah and of the Medical Officer PW 8 Dr. Saeed Ullah. Believing the statement of PW.1 Syed Waqar Hussain in his cross-examination this witness has stated, "the deceased then injured died prior to the making of report in Civil Hospital Kaghan". In support P.W Faisal who is also witness of ocular account. In cross-examination this witness has uttered. "After the occurrence the deceased then injured was taken to the CH Kaghan" meaning thereby that the deceased Ashiq Hussain was alive, who was in injured condition rushed to Civil Hospital Kaghan. PW.7 Mother of the deceased has gone even to the extent by saying "I went to hospital self stated that Ashiq Hsusain was taken to the hospital, my son was alive when I reached the hospital at Kaghan, I do not know the exact time when my son died in the hospital, however he was crying at that time". This old lady has come up even under admission "It is correct that accused was arrested by police on the same day and at the time of my lodging report he was already in custody at P.S Mahandry Camp". When PW. 10 Makhdoom Hussain Shah statement was appreciated. In the examination-in-chief, the witness has deposed "We reached at Khanian and found complainant Mst. Nasim Bibi who had brought the dead body of her son on a Jeep". Coming to the statement of Medical Officer whose statement has been recorded as PW.8 Dr. Saeed Ullah.
In his cross-examination he has come with an admission "It is correct that as soon as deceased received fire arm injuries he died C instantly". Now there is a markup difference between the ocular account and the medical evidence, which one is to prevail. This has left question mark to the entire prosecution version as to when the deceased Ashiq Hussain was hit with the fire shots. He was taken to the hospital where he expired according to the ocular account version or the medical officer has given the time of death instantaneously. If we go for the authorities referred, the time of death we are confronted with the situation either to believe the witnesses of ocular account or else the medical officer who has come up with a definite opinion that because of the injuries sustained by Ashiq Hussain deceased there was no hope for taking breath anymore who died there and then on the spot. In the above referred authorities, wisdom is derived from 1980 SCMR 889 (Mandan Ali v.
Gulistan). Wherein the ocular evidence held cannot be accepted to an extent inconsistent with the medical evidence. In the above referred judgments of the Hon'ble apex Courts, PLD 1994 SC 178 (Abdul Subhan v. Rahim Bakhsh), it was taken notice that when medical evidence contradicts the ocular account it itself leave room for doubt and benefit of that doubt should go to the accused and not to the prosecution.
11. As far as recoveries of the blood stained cotton from the place of occurrence and the crime two empties of 30 bore pistol would leave a tough nut to crack as to how been recovered when at the time the occurrence had taken place it was the month of January and the area was covered with snow and at that time too snow was falling as coming out from the statement of PW.5 Azhar Shah.
When the comparison of the empties with the so-called recovered pistol of .30 bore (P-1), the FSL report is not genuine as at the time of its exhibition as EX.PW12/D-1 the Court observation have come up "There is not embossing mark on the FSL report" which has become highly doubtful. Likely EX.PW12/4 the chemical examiner/serologist has given the opinion "It was human blood and of the same group". It cannot be gathered whether the sent up articles particularly the blood stained cotton would match to the blood group of the deceased Ashiq Hussain.
12. The most preeminent witness is the brother of deceased Ashiq Hussain with the name of Fahad Hussain who had informed his mother P.W Mst.Nasim Bibi that his brother after altercation with the accused/appellant Mir Afzal fired at the deceased obviously is the most natural witness but reason best known to the Special Public Prosecutor has been abandoned being unnecessary. It has been held in 2006 SCMR 1846 (Lal Khan appellant v. The State) which is reproduced as under:-- "(c) Penal Code (XLV of 1860)... ... S.302 (b)/34 ...Prosecution--- Misconduct--- Withholding a materialwitness---Effect--Non- production of most natural and material witness of occurrence, would strongly lead to an inference of prosecutorial misconduct, which would not only be considered a source of undue advantage for prosecution but also an act of suppression of material facts causing prejudice to accused.
(d) Qanun-e-Shahadat (10 1984)--- ---Art. 129 (g)---Criminal trial---Withholding natural witness--- Presumption---Act of withholding of most natural and a material witness of occurrence would create an impression that had such witness been brought into witness-box, he might not have supported the prosecution--- Prosecution, in such eventuality must not be in a position to avoid the consequence."
13.While appreciating the overall evidence for all the reasons above mentioned, we are of unvarying view that the prosecution case is filled with muff doubts and only one reason above stated creating reasonable doubt in the prudent mind alone is sufficient for discarding the prosecution witnesses. In support, 2004 PCr.LJ 68 (Jan Alam v. The State) is of much significance.
14.We, therefore, allow Criminal Appeal No,58/2010 preferred by accused/appellant Mir Afzal for his acquittal for the murder of deceased Ashiq Hussain and Cr.A. No,62 of 2010 titled Mir Afzal v. The State in the Sessions Trial No,20/7 of 2008 who is acquitted accordingly. Resultantly Criminal Revision No,9/2010 preferred by Mst. Nasim Bibi for enhancement of sentence stands dismissed.
Accused/appellant Mir Afzal be released forthwith if not required in any other case. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.