MANZOOR AHMAD MALIK, J.---Ulfat Hussain appellant and his four co-accused namely Altaf Hussain, Matloob, Iftikhar Husain and Ejaz Ahmad were indicted by the learned Additional Sessions Judge, Faisalabad to face trial in case FIR No, 482 dated 03.07.2004, offence under sections 302, 460, 148, 149, P.P.C., registered at Police Station Chak Jhumra, District Faisalabad. On the conclusion of trial, the learned trial Court, vide its judgment dated 29.11.2006, convicted the appellant under section 302(b), P.P.C. for the murder of Talib Husain and sentenced him to death. He was also directed to pay compensation of Rs,50,000/- to the legal heirs of the deceased, in default whereof to undergo one year's R.I. The co-accused of the appellant, mentioned above, were acquitted by the learned trial Court by giving them the benefit of doubt. The learned High Court dismissed the appeal of appellant, answered the murder reference in the negative and while maintaining conviction of the appellant, reduced his sentence of death into imprisonment for life. The learned High Court maintained the amount of compensation however, the sentence in default thereof was converted from one year R.I. to six months S.I. The learned High Court vide the impugned judgment also dismissed the criminal revision filed by the complainant for enhancement of amount of compensation. Thereafter the appellant filed jail petition for leave to appeal, wherein leave was granted by this Court on 25.04.2014.
2. Briefly stated the facts of the case as divulged from the FIR (Ex.PH/1) are that on the fateful night and time, the complainant was sleeping in his house when he heard hue and cry of Mst. Sana Bibi wife of Talib Hussain (deceased). The complainant at once rushed to the house of Talib Hussain and knocked at the door which was chained from inside, therefore, the complainant scaled over the wall of house from northern side. An electric bulb was lit in the courtyard. Iftikhar Hussain, Altaf Hussain, and Matloob Hussain all armed with .12 bore guns and. Ulfat Hussain who was armed with 8MM rifle were identified by the complainant who were trying to take deceased Talib Hussain out of his house on gun point and Mst. Sana Bibi was raising hue and cry. On seeing the complainant, Ulfat Hussain made the first fire which hit Talib Husain on the lower side of his right buttock, the fire shot by Matloob Hussain hit deceased on his back, the third fire shot by Iftikhar Hussain hit Talib Hussain on his back, fourth fire hit Talib Hussain on his flank. TalibHussain fell down on the ground whereupon the accused persons kept on firing on him which hit Talib Hussain on different parts of his body. According to complainant, all the time, three unknown persons kept on firing at the deceased with threats that whosoever would come near, he/she would also be done to death. On the alarm raised by complainant side, lrshad Hussain who was their relative and guest, reached the spot but the accused decamped while firing in the air.
3. We have heard learned counsel for the appellant and learned Law Officer at some length and have perused the available record with their assistance.
4. The occurrence in this case, as per prosecution, took place on 03.07.2004 at 1.15 a.m. (midnight), whereas the matter was reported to the police through statement of the complainant (Ex. PH) recorded by police at 3.00 a.m., on the basis whereof formal FIR (Ex.PH/I) was registered at 4/5 a.m. in the morning. Mst. Sana Bibi (widow of deceased) who appeared as PW4, in her cross- examination, stated that her statement was recorded in the house where the occurrence took place at about 2.30 a.m. midnight whereas the time mentioned on the Fard-i-Bayan of complainant (Ex.PH) is 3.00 a.m. The postmortem examination on the dead body of the deceased was conducted on the same day at 5.30 p.m. as per postmortem report (Ex.PA) i,e, after about 16 hours of the occurrence and after about 14 hours of reporting the matter to the police, whereas in his cross-examination complainant Ghulam Akbar (PW3) stated that the police took the dead body for postmortem examination at about 3/4 a.m. (the night of occurrence). During his cross- examination, at another place, he stated that they transported the dead body of deceased to hospital near about 6.00 a.m. It is not discernible from the record that when the dead body of deceased was sent for postmortem examination by the police at 3/4 a.m. i,e, after 2/3 hours of the occurrence, what happened in between, which delayed the postmortem examination for more than sixteen hours. There is no explanation at all available on record for such delay.
5. The prosecution relied on the statements of Ghulam Akbar (PW3) and Mst. Sana (PW4) who are the eye-witnesses of the occurrence. Ghulam Akbar is the real brother of the deceased whereas Mst. Sana is the wife of the deceased. During the course of arguments, we have observed a number of inconsistencies in the statements of both these witnesses which make the case of the prosecution doubtful. For instance, it is the case of the prosecution that Ghulam Akbar was sleeping in his own house when he heard hue and cry of Mst. Sana and rushed to the house of his deceased brother where the occurrence took place. According to him his house was about 15 yards away from the place of occurrence towards west; that the house of one Haji Arif Hussain is in between his house and the house of deceased Talib Hussain; that the area of house of Haji Arif Hussain was 3-1/2 kanals; that at the time of occurrence Haji Arif Hussain was present at his house.
He further stated in his cross-examination that at the time of occurrence and after decamping of the assailants, none other than the complainant, lrshad and Mst. Sana Bibi attracted from the locality. It is very strange that the complainant heard the hue and cry of Mst. Sana Bibi 15 yards away from his house when he was sleeping particularly when in between his house and the place of occurrence, was the house of Haji Arif Hussain with covered area of 3-1/2 kanals but neither Haji Arif Hussain nor any other person from the locality attracted to the spot except for the complainant. It does not end here. In the second part, after the assailants allegedly fired at the deceased at the place of occurrence, even taken no one from the locality attracted to the spot according to complainant and only Irshad PW who was not the resident of the vicinity; was behnoi of complainant and used to reside at a distance of 04 kilometers from the place of occurrence but was sleeping in the house of the complainant, attracted to the place of occurrence where the assailants had already murdered Talib Hussain deceased. The complainant has not explained the reason for presence of Irshad at his house. Nevertheless, said Irshad PW was given up by the prosecution subsequently.
6. In the FIR and in his examination in chief, the complainant stated that when he reached the house of Talib Hussain, it was chained from inside and he entered the house by scaling over the northern wall. In his cross-examination, he explained that the height of wall which he scaled over for entering the house of deceased was 5-1/2 feet. Mst. Sana (PW4) at one point stated in her cross-examination that as soon as Ghulam Akbar PW jumped from the northern wall, the accused opened fire upon deceased Talib Hussain, whereas at another place in her cross-examination, she stated that in the days of occurrence the wall of their house had been demolished. In his cross- examination, Ghulam Akbar (PW3) stated that after the occurrence the deceased was lifted from the ground and laid on a charpai by him, Irshad Hussain and Mst. Sana Bibi; that at that time deceased was bleeding; that his clothes were not stained with blood at that moment; that the clothes of Irshad PW and Mst. Sana (PW4) were also not stained with blood. Mst. Sana who is the widow of deceased however contradicted the complainant in her cross-examination by saying that after the departure of assailants, the deceased remained alive in an injured condition for about 15 minutes; that they did not lift the body of deceased from the ground and it was not placed on the charpai and when the police arrived at the place of occurrence, the deceased was lying on the ground. She further stated that she offered drop of water to the deceased and placed his head in her arms; that her clothes got stained with blood during that act but she did not produce her blood stained clothes to the police. It is quite strange that if according to Mst. Sana, the deceased remained alive for fifteen minutes after sustaining injuries, the prosecution witnesses had done nothing to provide him the medical aid.
7. The complainant Ghulam Akbar (PW3) stated in his statement recorded by the police and before the learned trial Court that during the incident, three unknown persons were standing on the roof of the house of deceased and they continued to raise lalkara, kept on firing and said that whosoever came near would be done to death. In contrast to this statement of complainant, Mst. Sana Bibi (PW4) stated before the learned trial Court that throughout the occurrence three unknown persons stood outside the house of occurrence and made indiscriminate firing. In her cross-examination, she was duly confronted with her statement recorded by the police under section 161 Code of Criminal Procedure wherein she said that three armed persons while standing at the roof of residential house made firing.
8. The most important aspect of the prosecution case (in the FIR and before the learned trial Court) is that the appellant along with his co-accused namely Altaf Hussain, Matloob and lftikhar Hussain fired at the deceased. Firstly specific roles were assigned to the appellant and his co-accused.
Thereafter, it was alleged/stated that the appellant and his co-accused fired at the deceased which hit him on different parts of the body. Dr. Liaqat Ali (PW1) who conducted the postmortem examination on the dead body of the deceased Talib Hussain observed 11 firearm injuries on the body of the deceased, out of those Seven (07) were entry wounds and three were exit wounds, whereas one was a grazing firearm wound. The learned trial Court acquitted the co-accused of the appellant who had also been assigned the specific and general role of firing at the deceased along with the appellant but no appeal was filed by the complainant or the State in the next higher forum against their acquittal meaning thereby that complainant and State were satisfied with the findings of acquittal to their extent. Besides, the learned High Court has already disbelieved the motive part of the prosecution story in Para 9 of the impugned judgment for valid reasons as the prosecution was not able to give details of the land dispute between the parties. The recovery of .8 MM rifle on the pointation of appellant is also inconsequential because no empty was secured from the spot by the investigating agency. In these circumstances, independent and strong corroboration from other pieces of evidence is required to believe the same set of evidence against the appellant which has already been disbelieved by the learned trial Court against his acquitted co-accused, whose roles were quite similar as that of the appellant. Such corroboration is very much lacking in the instant case. Considering all these circumstances, we have no manner of doubt in our minds that prosecution has failed to prove its case against the appellant beyond any shadow of doubt.
9. For what has been discussed above, this appeal is allowed. The impugned judgments of the learned Courts below to the extent of appellant Ulfat Hussain are set aside. His conviction and sentence are set aside. He is acquitted of the charges. He shall be released forthwith if not required to be detained in any other case.