Through the afore-titled criminal appeal, appellant Muhammad Saleem has challenged the vires of judgment dated 10.07.2010 passed by a learned Sessions Judge at Rajanpur in case FIR No, 386 dated 12.09.2009, in respect of an offence under Section 302, PPC registered at Police Station, City Rajanpur whereby he was convicted and sentenced as under: "Under Section 302(b), PPC Imprisonment for life as Ta'zir and to pay compensation of Rs, 200,000/- under Section 544-A, Cr.P.C. to the legal heirs of deceased Khalid Hussain and in default thereof to further under simple imprisonment for six months.
He was held entitled to the benefit of Section 382-B, Cr.P.C.
2. Complainant/Manzoor Ahmad has filed Criminal Revision No, 479 of 2010 seeking enhancement of sentence of Respondent No, 2/Muhammad Saleem, which shall be decided through this single judgment.
3. The prosecution story unfolded in the crime report (Exh.PE/1) registered on the complaint of Mansoor Ahmad (PW-6) is that his son Khalid Hussain was working at the barber shop of one Maula Baldish at Machhike and was residing with him. He used to visit the house after fortnight.
Bakht Ali, another son of the complainant was married with the sister of Muhammad Salem Bhatti (appellant) and the complainant's daughter was married with Muhammad Saleem Bhatti, About one year prior to the occurrence the complainant's daughter/wife of Muhammad Salem Bhatti and wife of Bakht Ali, sister of Muhammad Saloom Bhatti had gone to their respective parents, house due to some family dispute, On 12.09.2009 at about 01:00 p.m. aforesaid Khalid Hussain alongwith his maternal cousin Muhammad Ramzan and one Abdul Ghafoor was going to the house of Muhammad Ramzan situated at the barber shop at Lari Addah Rajanpur and when they reached near Railway Phattak, Aaqilpur Road, all of a sudden Muhammad Saleem armed with hatchet met them. He raised lalkara to take a revenge for retaining his wife, sister of Khalid Hussain and gave successive hatchet blows at the forehead, middle of head, right and left side of head of Khalid Hussain. Muhammad Saleem raised lalkara to Abdul Latif to do him away, if come close to them.
Khalid Hussain fell down on the ground, who was shifted to DHQ Hospital Rajanpur being unconscious and in severe injured condition.
4. The case was registered under Section 324, PPC on the statement of the complainant. The aforesaid injured was shifted to Multan due to his precarious condition where he succumbed to the injuries on the next day and offence under Section 302. PPC was added.
5. Muhammad Saleem, SI. (PW-8) had inspected the place of occurrence on 12.09.2009, recorded the statement of Manzoor Ahmad complainant (Exh.PE), prepared the injury statement of Khalid Hussain (Exh.PD), secured the blood-stained earth from the place of occurrence vide recovery memo. Exh.PF, recorded the statements of witnesses under Section 161, Cr.P.C., prepared site-plan of place of occurrence without scale (Exh.PH). On 13.09.2009 Khalid Hussain expired in Nishter Hospital, Multan and offence 302, PPC was added. On 14.09.2009, he had prepared inquest report Exh.PB/1, the postmortem examination on the dead body of deceased Khalid Hussain was conducted on the same day. On 18.09.2009 he arrested appellant Muhammad Saleem, who led the police party to the recovery of a hatchet (P-2), which was taken into possession vide recovery memo. (Exh.PG).
He recorded the statements under Section 161, Cr.P.C. and submitted incomplete challan against the appellant.
6. Dr. Abdul Hakeem (PW-4) had conducted the medical examination of the injured Muhammad Khalid on 12.09.2009 and observed following injuries:--
1. An incised wound of 5 cm x 1 cm on left side of the forehead. The wound is bone deep (exposed), x-ray was advised.
2. Two incised wound of 5 cm x 1 cm on right side of the skull. Wounds of bone deep (exposed). X- ray was advised.
3. An incised wound of 5 cm x 1 cm on the top of the head. The wound' was bound deep (exposed).
X-ray was advised.
4. An incised wound of 5 cm x 1 cm on left side of the head, the wound was bone deep (exposed).
X-ray was advised.
Nature of injuries All injuries were dangerous to life. Weapon was sharp. Duration between injuries and received the patient was one to two hours.
He had also conducted the post-mortem examination on the dead body of deceased Muhammad Khalid on 14.09.2009 (inadvertently written as 13.09.2009) and noted the aforesaid injuries. He had observed that there was fracture in the skull. Meningies were ruptured, hemotoma was present in the brain and there was fracture on the skull. Thee cause of death was due to shock and fracture in the head. Probable time between injury and death was within 24 to 27 hours whereas between death and post-mortem was within 18 to 19 hours.
7. At the commencement of trial, learned trial Court had framed a charge against the appellant to which he pleaded not guilty and claimed to be tried.
8. The prosecution had produced 10-witnesses besides the reports of Chemical Examiner (Exh.PJ and Exh.PJ/1) and the report of Serologist Exh.PJ/2. The appellant, in his statement recorded under Section 342, Cr.P.C., had denied and controverted all the allegations leveled against him, he neither opted to make statement under Section 340(2), Cr.P.C. nor had he produced any witness in his defence.
9. Learned trial Court, upon conclusion of the trial convicted and sentenced the appellant vide impugned judgment dated 10.07.2010. Hence, the present appeal.
10. Learned counsel for the appellant submits that the appellant is quite innocent and has been falsely involved in this case due to suspicion; that it was a blind murder and no one had seen the occurrence with his own eyes; that the complainant is not an eye-witness of the occurrence whereas the claimed eye-witnesses namely Abdul Latif (PW-7) was a chance witness and he had no occasion to be present there at the relevant time; that the complainant claimed eyewitness was resident of Kotla Said Khan situated at about 12/13 miles away from the place of occurrence and he had no business whatsoever to be present at the place of occurrence; that there is a delay of 18/19 hours in post-mortem examination of the deceased as mentioned in the crime report, which can only be caused for cooking up a false story and to manage the eye-witnesses for false implication of the accused persons. Finally, a prayer has been made for acquittal of the appellant.
11.Conversely, learned Additional Prosecutor General has opposed the arguments advanced by the learned counsel for the appellant while submitting that it was a broad-daylight occurrence, which had taken place at thoroughfare in front of wood stall and other shops and the same could not be presumed to be an un-attended or unwitnessed occurrence; that the matter had been reported to the police with sufficient promptitude, which exclude every hypothesis of action and consultation; that the complainant had no occasion to falsely implicate the appellant being his son-in-law in the alleged occurrence; that both the prosecution witnesses remained affirmed and consistent on all material particulars and their testimony find full support of the medical evidence; that the prosecution has successfully proved the charge of brutal murder against the appellant beyond any reasonable shadow of doubt. He has prayed for acquittal of the appellant.
12.I have heard learned counsel for the appellant, learned Additional Prosecutor General appearing for the State and have perused the record with their assistance.
13.The mainstay of the prosecution case was the testimony of Manzoor Ahmad, the complainant/father of the deceased (PW-06) and Abdul Latif (PW-7). The complainant got recorded his statement before the police that on the fateful day at 01:00 p.m. his son Khalid Hussain, nephew Muhammad Ramzan and one Abdul Latif were proceeding to Lorri-Adda, Rajanpur from the house of Muhammad Ramzan situated at Railway Colony and on the way near Railway Phattak Aaqilpur, the appellant while armed with hatchet intercepted them and while making a lalkara to take a revenge for not sending his wife (deceased's sister) to his house. inflicted a hatchet blow at forehead of Khalid Hussain. He repeated the same, which landed at the middle, right and left side of head of Khalid Hussain. The appellant had warned Muhammad Ramzan and Abdul Latif, if someone step forward, he would be done to death. Khalid Hussain fell down after sustaining injuries. The complainant while appearing before the witness-box had reiterated almost same prosecution story but he had posed himself to be an eye-witness of the occurrence. He had deposed that he alongwith Khalid Hussain, Muhammad Ramzan and Abdul Latif (PW-1) was proceeding to Lorri-Adda, Rajanpur from the house of Muhammad Ramzan. The crime report clearly depicts that the complainant was not accompanying the deceased at the time of occurrence. He had stated in the crime,report that the occurrence Was witnessed by Muhammad Ramzan and Abdul Latif and his name figures nowhere as an eye-witness of the occurrence. During evidence he was confronted with the major part of his previous statement recorded under Section 161, Cr.P.C. as under: "I had stated in my statement Exh.PE that I alongwith Latif, Ramzan and Khalid were returning from the house of Muhammad Ramzan towards Adda at 01:00 p.m. (Confronted with Exh.PE where the word (I) is not mentioned and what mentioned is that my son Khalid Hussain alongwith my bhanja; Muhammad Ramzan and Abdul Latif were coming from the house of Muhammad Ramzan and were proceeding towards Hamam situated at Lorri-Adda, Rajanpur). I have got recorded in my statement Exh.PE that when we reached near railway phattak Aaqilpur Road. Muhammad Saleem accused armed with hatchet encountered us. (Confronted with Exh.PE where word (us) is not mentioned)."
14.The complainant had attempted to use the word "us" everywhere, where he had not shown to be accompanied in the crime report and posed himself to be available at the venue of occurrence at the relevant time The deposition of the complainant and Abdul Latif PW-7 itself reflect that the complainant was not available and he was not accompanying the deceased at the venue of occurrence. The complainant, had made an afterthought assertion and un-successful attempt to pose himself to be the eye-witness of the occurrence, which could not be proved beyond reasonable shadow of doubt.
15.So far as the statement of Abdul Latif (PW-7) is concerned, he had deposed in the witness-box that he alongwith deceased Khalid Hussain, Manzoor and Ramzan was present near Railway Phattak, Aaqilpur when the appellant intercepted them and caused injuries on the person of Khalid Hussain with hatchet. He had specifically mentioned the first, second, third and fourth hatchet blow on specific part of the body of the deceased but he ,and the other claimed eyewitnesses did not attempt to intervene to rescue the deceased. He had deposed in his cross-examination that the appellant had threatened them if somebody came near to him, he would met the same consequences due to which they did not intervene to rescue the deceased. The appellant was not armed with any fire-arm weapon and the said witness alongwith other claimed eye-witnesses, four in number, including the deceased but it is quite strange and unbelievable that they did not intervene to rescue their nearer and dearer and remained standing idol at the time of occurrence.
The, only inference could be drawn that:-- "Had they been present at the place of occurrence. They would have easily over-powered the appellant" and "Had they been present at the venue of occurrence they would have intervened to save the life of the deceased." as they were four in number whereas appellant was alone, meaning thereby it was a blind occurrence and no one was available there to witness the occurrence otherwise there was an ample opportunity for the claimed eye-witnesses to over-power the appellant. The unnatural conduct of the claimed eye-witnesses forced me not to believe their deposition. Similar case having almost same facts has been dealt with by august Supreme Court of Pakistan titled Pathan v. The State (2015 SCM R 315). The relevant portion of the said judgment is hereby reproduced as under:-- "The presence of witnesses on the crime spot due to their unnatural conduct has become highly doubtful, therefore, no explicit reliance can be placed on their testimony. They had only given photogenic/photographic narration of the occurrence but did not nothing nor took a single step to rescue the deceased. The causing of that much of stab wounds on the deceased loudly speaks that if these three witnesses were present or the spot, being close blood relatives including the son, they would have definitely intervened, presenting the accused from causing further damage to the deceased rather strong presumption operates that the deceased was done to death in a merciless manner by the culprit when he was at the mercy of the latter and no one was there for his rescue.
In similar circumstances, the evidence of such eye-witnesses was disbelieved by this Court in the case of Masood Ahmed and Muhammad Ashraf v. The State (1994 SCM R 6)."
16. Even otherwise, during cross-examination the aforesaid claimed eye-witness was duly confronted with his previous statement recorded under Section 161, Cr.P.C. (Exh.DA) with respect to the associating of Manzoor alongwith them, Abdul Latif (PW-7) had no occasion to be present at the scene of the occurrence at the relevant time and throughout his deposition, he had not explained why he was present near the Railway Phattak and in what relation he had accompanied the deceased and others. I am of the affirmed view that the ocular account produced by the prosecution is not trustworthy and confidence inspiring.
17. Dr. Abdul Hakeem (PW-4) conducted medico-legal, examination of Muhammad Khalid while in injured condition on 12.09.2009 as about 01:40 p.m. and observed an incised wound on left side of the forehead, two incised wounds on right side of the skull, an incised wound on the top of the head and an incised wound'on left side of the head, all the injuries were bone deep (exposed) and were dangerous to life caused by sharp edged weapon. Muhammad Khalid had died at Nishter Hospital, Multan. He had also conducted autopsy of the dead body of deceased Khalid Hussain on 14.09.2009 (inadvertently written as 13.09.2009) at 09:00 a.m. and observed the fracture in the skull, the Meningies were ruptured and the hemotoma was present in the brain. The cause of death was due to shock and fracture in the head. The probable duration between injuries and death was 24 to 27 hours and between death and post-mortem 18 to 19 hours. The purpose of post-mortem examination is always to ascertain the cause of death, locale, nature and the number of injuries, kind of weapon used and duration between injuries and death and the duration between death and post-mortem examination but the same by itself does not raise finger towards any specific culprit. The ocular account in the case in hand has already been discarded by me being tainted with doubt and, thus, the medical evidence lends no support to the prosecution any more.
18. The motive as set up in the crime report was that the appellant was married with daughter of the complainant and complainant's son namely Bakht Ali was married with the sister of appellant Muhammad Saleem. Due to some strained relations the appellant's wife and wife of Bakht Ali had gone to their parents' house for last one month of the occurrence. The appellant was annoyed over the attitude of Khalid Hussain, who was not intending to send his sister (appellant's wife) to the house of the appellant and while considering him a hurdle, the appellant committed his murder.
Though there is a close relation between the deceased and the appellant yet they had no direct clash and the deceased could not be made responsible for not sending his sister to the house of the appellant as the deceased was not elder of the, family and it could not be presumed that his sister was under his pressure, who could not decide about her future without consent of his brother Khalid Hussain. The complainant being elder (sarbrah) of the family having a commending position should have been the appellant's prime target and even otherwise, both the ladies, who had been married in exchange, were residing in the house of their parents and why the appellant was demanding to take his wife back without sending his sister in the house of her in-laws. I do not find any substance in the motive as set up by the prosecution and even no independent evidence has been brought on record to substantiate the same as the motive part of the occurrence is not directly linked with the deceased.
19.During investigation the appellant is shown to have got recovered blood-stained hatchet (P-2) and the reports of chemical examiner ,in this regard had been received with positive result including origin of blood but the same has been discussed in detail by the learned trial Court and recovery of hatchet from the appellant has been disbelieved. Even otherwise if the recovery of hatchet is believed to be the same weapon used in the alleged occurrence by the appellant, the same alone could not become basis to maintain the conviction and sentence of the appellant without corroboration from any other independent piece of evidence. Reliance is placed on the case of Riaz Ahmed v. The State (2010 SCM R 846), the relevant portion is hereby reproduced as under:-- "The prosecution also produced the positive FSL report, meaning thereby, the crime empty Secured from place of incident matched with the gun recovered from the possession of the appellant. This being a. corroborative piece of evidence, which by itself is insufficient to convict the appellant in absence of substantive piece of evidence."
20. Having scanned the entire prosecution evidence I am of the considered view that the prosecution has miserably failed to prove the charge of murder against the appellant through cogent, reliable and confidence inspiring evidence. The witnesses of ocular account could not establish their presence at the venue of occurrence. The complainant was not an eye-witness of the occurrence. He had reported the matter to the Police and his evidence is not more than the status of hearsay. The crime report as well as the deposition of the complainant and Abdul Latif PW-7 indicate in so many words that the complainant was not an eye-witness of the occurrence.
He had posed to be an eye-witness but major portion of his evidence where his name was not included in the accompany of the deceased has been confronted with his previous statement but so far as the evidence of Abdul Latif is concerned who had no occasion to be present at the venue of the occurrence at the relevant time and his deposition in respect of being with the deceased, complainant and Muhammad Ramzan is a bundle of lies. Though sole evidence can be relied upon and is always sufficient to convict the accused person, even for capital punishment but the same ought to be truthful, reliable and confidence inspiring which is lacking in this case. The medical evidence alone does not raise fingers towards any specific culprit. The motive as set up by the prosecution has not been believed and the same has no direct connection with the deceased. The recovery of weapon of offence has already been discarded by the learned trial Court. I do not find any iota of evidence which could be connected with the appellant to establish the charge of murder. The entire prosecution story as narrated by the prosecution is highly doubtful and the benefit of doubt even slightest always goes to the accused and is sufficient to tilt the scale of justice in his favour but the case in hand is replete with doubts. The prosecution has failed to substantiate the charge against the appellant beyond reasonable shadow of doubt. Reliance is placed on titled "Muhammad Akram versus The State" (2009 SCM R 230) wherein at page No, 236, it has been held as under: "It is an axiomatic principle of law that in case of doubt, the benefit of thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervaiz v. The State 1995 SCM R 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstances which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."
21.In view of what has been discussed above the instant Criminal Appeal No, 967 of 2010 is hereby allowed. The conviction and sentence awarded to the appellant by the learned trial Court are set inside. The appellant is on bail. His bail bonds and surety is discharged from the liability.
22.Criminal Revision No 479 of 2010 filed by the complainant for seeking enhancement of the sentence of Respondent No, 2/Muhammad Saleem, is without any merit, the same stands dismissed in limine.