This judgment shall dispose of Criminal Appeal No, 145 of 2012 filed by appellant Mudassar (against conviction) and Criminal Revision No, 116 of 2012 filed by complainant Muhammad Sadiq (for enhancement of sentence awarded to Mudassar respondent/appellant), originating from the judgment dated 30.01.2012 passed by the learned Additional Sessions Judge, Multan in case F.I.R No, 1110/2010 dated 13.10.2010 registered under Sections 302, 34, PPC at Police Station Gulgasht, Multan.
The learned trial Court on the conclusion of proceedings before him while acquitting co-accused namely Ishfaq alias Shaka proceeded to convict the appellant as under: Under Section 302(b), PPC to undergo imprisonment for life as well as to pay Rs. 100,0001- as compensation to the legal heirs of deceased and in default whereof to further undergo six months SI. Benefit of Section 382-B, Cr.P.C. was also extended in favour of the appellant.
2. Precisely stated the facts of the prosecution as unfolded by Muhammad Sadiq complainant (PW.7) in FIR (Exh.PA/1) are to the effect that on 13.10.2010 at about 6:00 p.m., he and Abdul Ghaffar were on their way back to their house from th fields, they were intercepted by Mudassar Shah and Ishfaq alias Shaka who were armed with pistols. Both the accused persons exhorted that they would teach them a lesson for moving applications. Mudassar Shah (appellant) fired from his pistol .30 bore at Abdul Ghaffar which hit on his right thigh near the bladder. In the meantime Muhammad Rafique son of Abdul Ghafoor also attracted to the spot and witnessed the occurrence. On the arrival of general public, both the accused persons decamped from the crime scene. Abdul Ghaffar was immediately shifted to Nishter Hospital, Multan in injured condition.
The motive behind the occurrence statedly was that the accused persons had committed theft of gold ornaments and cash in the house of Muhammad Sadiq and Abdul Ghaffar and Muhammad Saddiq had moved application against the accused persons for appropriate action which enraged them.
3. Investigation of this case was conducted by Muhammad Ajmal Inspector (PW.9). After the entrustment of investigation, on 13.10.2010 he .proceeded to the place of occurrence, conducted spot inspection, took into possession crime empty (P.I) and blood stained earth vide recovery memo. (Exh.PH). On 14.10.2010, Abdul Ghaffar (injured) who was admitted in Nishter Hospital, Multan in injured condition succumbed to the injuries on the following day, resultantly offence under Section 302, PPC was added in this case. On 20.10.2010 Mudassar (appellant) was arrested in this case and during the course of investigation he produced medical certificate, according to which he was also injured during the occurrence and remained admitted in hospital from 13.10.2010 to 16.10.2010. On 31.10.2010 while in police custody Mudassar (appellant) made a disclosure and led to the recovery of Pistol (P.6) along with two live bullets (P.7/1-2) which were taken into possession vide memo. (Exh.PL). Muhammad Ajmal Inspector (PW.9) also arrested Ishfaq (since acquitted) on 12.11.2010. After the completion of investigation, he submitted report under Section 173, Cr.P.C. before the trial Court.
4. The prosecution, in order to prove its case against the appellant produced twelve witnesses which include Muhammad Sadiq (PW 7) and Muhammad Rafique (PW.8), the eye-witnesses of the occurrence, Dr. Amir Qayyum (PW.3) and Dr. Muamber Hussain (PW.12) who furnished medical evidence and Muhammad Ajmal Inspector (PW.9) who conducted the investigation of this case.
The rest of witnesses, more or less were fonnal in nature.
5. According to Dr. Amir Qayyum (PW.3), he on 13.10.2010 conducted the medico legal examination of Abdul Ghaffar and issued MLC No, 2620/2010 (Exh.PC) and observed the following injury:
(1) Lacerated wound (entry) 3/4 cm on outer side of right thigh, 2.5 cm above right knee joint with abraded collar present. The injury was KUO for ward report and X-ray.
On 14.10.2010. at about 10:30 p.m., the doctor conducted the postmortem examination of the dead body of Abdul Ghaffar and observed the following injuries:--
(1) Lacerated wound (entry) 3/4 cm x 3/4 cm on outer side of right thigh 25 cm above right knee joint with abraded collar present.
There were various surgical incisions were done for treatment purpose.
(i) Surgical incision stitched wound having 16- inches on outer side of right thigh, 5 cm later to Injury No, 1.
(ii) Surgical incision on right buttock 10 cm in length having 7-stitches with drain pipe present on the upper part of right thigh.
(iii)Surgical incision 12 cm x 3 cm on outer side of right lower leg, 15 cm below right knee joint.
(iv)Surgical incision 15 cm x 3 cm on the inner side of right lower leg, 10 cm on middle of right knee joint.
According to the opinion of the doctor, the death in this case occurrence due to Injury No, 1 caused by fire-arm and the same was described to be sufficient for the death of a person followed by severe haemorrhage, shock and death. All the injuries were noted to be ante-mortem in nature.
The duration between the injuries and death described by the doctor was 20 to 26 hours and between death and post-mortem as 3 to 6 hours.
6. The learned trial Court examined the appellant and his co-accused under Section 342, Cr.P.C.
Mudassar (appellant) in response to question "why this case against you and why the PWs deposed against you" made the following reply: "13.10.2010 my friend Ishfaq (co-accused) who is close relative of the complainant party was coming towards my house one an hour prior to the alleged occurrence and on the way an altercation took place between Ishfaq accused and the complainant due to some their domestic disputes. On this, the complainant, Nazar Abbas alias Babu (the real son of deceased Abdul Ghaffar) and about 1/15 persons of the complainant party chased Ishfaq accused towards my house. I got fled away Ishfaq accused and due to this grudge the complainant party caught hold me and took me at the place of occurrence while beating me severely where a quarrel took place as Nazar Abbas alias Babu who is a criminal person, he put out pistol and tried to make fire on me and during scuffle the fire hit to Abdul Ghaffar deceased incidentally. I am innocent. On the same day I along with the deceased Abdul Ghaffar was shifted to Emergency Ward, Nishtar Hospital, Multan by the police in injured condition. All the prosecution story is false and fabricated and planted against me. The PWs have deposed against me falsely as they are closely related to each other and are interested witnesses."
The appellant did not opt to appear as witnesses under Section 340(2), Cr.P.C. However, he produced Dr. Amir Qayyum (DW.1) as well as copy of F.I.R No, 638/2009 (Exh.PG) in his defence.
7. After the completion of trial, the learned trial Court convicted and sentenced the appellant as mentioned above, hence, the instant appeal and criminal revision.
8. It is contended by the learned counsel for the appellant that in the instant case, the ocular account is furnished by, the witnesses who admittedly were inimical against the appellant and his co-accused; that the statements of the two eye-witnesses are strongly contradicted from other facts and circumstances of the case; that the testimony of Muhammad Sadiq (PW.7) is in sharp contrast with the medical evidence brought on the record through Dr. Aamir Qayyum (PW3); that the conduct of Muhammad Sadiq (PW.7), who is the son-in-law of the deceased, is found to be contrary to natural human conduct; that as per statement of Muhammad Sadiq, despite being present at the crime scene he did not accompany Abdul Ghaffar (deceased) to hospital; that the ocular account is neither corroborated nor supported by any other circumstances; that though specific motive was taken at the time of the registration of F.I.R, however, no evidence was led in its support; that the recovery of pistol besides being dubious in nature further became inconsequential as it was forwarded to PFSA along with the crime empty recovered from the spot and that the learned trial Court proceeded to discard the defence version of the appellant for no good reason.
9. On the other hand, learned DPG assisted by learned counsel for the complainant vehemently controverted the arguments advanced by learned counsel for the appellant and submitted that the case is arising out of promptly lodged F.I.R, wherein to appellant is specifically nominated and that too in referente to the role performed by him in the commission of crime; that the ocular account is furnished by the two natural witnesses, who provided all the necessary details of the occurrence; that the ocular account is duly supported by the medical evidence as well as from the recovery of the pistol affected on the pointation of the appellant; that the ocular account is further corroborated from the motive, which is attributed to the appellant.
10. Arguments heard. Record perused.
11. A wade through the prosecution case reveals that it is comprising upon the ocular account furnished by Muhammad Sadiq and Muhammad Rafique (PW.7 & PW.8), the medical evidence brought on record through Dr. Muamber Hussain (PW.12), Dr, Aamir Qayyum (PW.3), the evidence of recovery of Pistol (P.6) witnessed by Muhammad Sadiq. The prosecution sought further corroboration from the motive which was specifically mentioned in the crime report.
12.It evinces from the record that according to the detail provided by Muhammad Sadiq and Muhammad Rafique (PW.7 & PW.8) the occurrence took place on 13.10.2010 at about 6:00 p.m. within the territorial jurisdiction of Police Station Gulgasht District Multan. The matter was brought to the notice of police at about 6:40 p.m. through an application (Exh.PA) authored by Muhammad Sadiq (PW.7). The application was presented before Muhammad Ajmal ASI (PW.10) who arrived at the crime scene after getting information of the occurrence. According to record, the application was forwarded to the Police Station for the registration of F.I.R through Javaid Constable, however, it is noticed that he was withheld by the prosecution and was not produced as witness during trial.
Though the data mentioned above reflects that the matter was reported to police within forty minutes of the occurrence, however, by not producing Javaid Constable necessary link to prove prompt reporting of the matter was missed. For this material omission, no explanation whatsoever is offered by the prosecution. In this backdrop, a more cautious approach is required to be adopted for evaluating the worth of prosecution case.
13. According to the detail incorporated in the complaint I(Exh.PA) the occurrence took place on 13.10.2010 at about 6:00 p.m. when Abdul Ghaffar (deceased) and Muhammad Sadiq (PW.7) were on their way back to their home and were intercepted by Mudassar Shall (appellant) and Ishfaq (since acquitted). Both the accused exhorted that "today you will be taught a lesson for moving an application and getting a case registered". Such lalkara was followed by a shot fired from .30 bore pistol by Mudassar Shah (appellant) which hit on the right thigh near the bladder of Abdul Ghaffar (deceased).
In the above backdrop, when Muhammad Sadiq and Muhammad Rafique (PW.7 & PW.8) appeared in the witness-box, they contradicted each other while narrating the detail of the occurrence. The perusal of the statement of Muhammad Sadiq (PW.7) reveals that he stated in unequivocal terms that the occurrence was committed by Mudassar Shah (appellant) and Ishfaq alias Shaka (since acquitted). Not only this he also saddled Muhammad Ishfaq with the responsibility of active participation in the commission of crime by saying that Mudassar Shah fired at the deceased on his asking. It would be appropriate to reproduce the relevant extract from the examination-in-chief of Muhammad Sadiq (PW.7) which is as under: "When we reached in the Chowk of Basti Naho where Mudasar Shah armed with pistol .30 bore and Ishfaq accused present in the Court were present in the Chowk and on seeing us lshfaq accused raised LALKARA that you would be teach lesson on filing applications against them and on the asking of Ishfaq accused Mudasar Shah made fire with pistol which hit on right thigh and bladder of Abdul Ghaffar and he fell on the ground."
(underlining is for emphasis).
Conversely, the perusal of statement of Muhammad Rafique (PW.8) reveals that he uttered not a single word about the presence of Ishfaq (acquitted accused). It is equally important to make reference to a specific sentence, uttered by Muhammad Rafique (PW.8) during his examination-in- chief, which is as under: "Mudasar Shah was alone at the time of occurrence."
This aspect gives sufficient reflection that the detail of the occurrence furnished by Muhammad Sadiq (PW.7) is strongly contradicted by Muhammad Rafique (PW.8). Though Muhammad Ishfaq was acquitted by the trial Court but it left a big question mark on the credibility of Muhammad Sadiq (PW.7).
Likewise, there is another important feature arising out of the testimony of Muhammad Sadiq (PW.7) which is duly taken note of by this. Court. He admitted in' clear terms that he did not accompany Abdul Ghaffar to hospital. It divulges from his statement that Abdul Ghaffar was shifted to the hospital by the police, along with his daughter. Such aspect runs contrary to the natural human conduct. Admittedly, Abdul Ghaffar was his father-in-law and at that time was in a badly injured condition. If at all, Muhammad Sadiq was present at the crime scene, he should have accompanied his father-in-law to the hospital. It is further noticed that the daughter of Abdul Ghaffar who accompanied him to hospital neither appeared before the police during the course of investigation nor before the Court during trial.
I have also given a considered thought to the statement of Muhammad Rafique (PW.8). Firstly, it is observed that Muhammad Sadiq who is also the complainant of the case uttered not a single word regarding the occurrence having been witnessed by Muhammad Rafique. Secondly the post- occurrence detail provided by Muhammad Rafique does not coincide with the police proceedings as well. It is important to mention here that Muhammad Ajmal ASI (PW.10) after receiving information of the occurrence arrived at the crime scene where the application for the registration of F.I.R was presented to him. Likewise, Abdul Ghaffar (deceased) was also present at the crime scene in an injured condition from where he was shifted to hospital in van of Rescue-1122.
Surprisingly, according to the detail provided by Muhammad Rafique firstly he and Muhammad Sadiq drafted complaint (Exh.PA) while sitting in his shop and then they proceeded to the Police Station and met the Investigating Officer at Addah Bahadur Pur Chowk where the complaint (Exh.PA) was handed over to him. Muhammad Rafique further stated that subsequent to that both of them returned to the crime scene in the company of Muhammad Ajmal ASI. This is not understandable as to how Abdul Ghaffar (deceased) was left behind at the crime scene in an injured condition by the two PWs where he remained there till the return of the PWs and the police.
There 45 another aspect which put this Court at guard for the purposes of appraisal, of prosecution evidence. The trial Court charge sheeted the appellant and Muhammad Ishfaq, however, awarded conviction only to the appellant. Despite the fact, Muhammad Ishfaq was implicated in the case by Muhammad Sadiq (PW.7) with the allegation of active participation in the commission of crime, yet he was acquitted by the trial Court. From it, it follows that the evidence of Muhammad Sadiq was disbelieved to the extent of Muhammad Ishfaq (sine acquitted), hence, his testimony cannot be used for upholding the conviction of the appellant without there being strong corroboration and support from other circumstances. In this respect, reference can be made to the case of Akhtar Ali and others v. The State (2008 SCM R 6), wherein the Hon'ble upreme Court of Pakistan observed as under: "It is a settled law that eye-witnesses found to have falsely implicated five out of eight accused then conviction of remaining accused on the basis of same evidence cannot be relied upon without independent corroboration."
14. For the safe administration of justice, this Court made an in-depth analysis of the remaining evidence, more importantly of the medical evidence furnished by the two doctors.. It is important to mention here that according to Muhammad Sadiq (PW.7) the shot fired by the appellant hit on the right thigh and bladder of Abdul Ghaffar (deceased). According to record, Abdul Ghaffar was firstly medically examined during his life time by Dr. Aamir Qayyum (PW.3). During such examination, he noted only a single fire-arm entry wound on the right knee joint. He noted no injury either on the bladder or on the upper part of the thigh. It is equally important to mention here that though the statement of Dr. Aamir Qayyum was not in accordance with the statement of Muhammad Sadiq (PW.7) yet he was not declared hostile. In this backdrop, this Court has no other option but to hold that the medical evidence furpished by Dr. Aamir Qayyum is not providing any support to the statement of Muhammad Sadiq (PW.7).
15. The prosecution sought corroboration from the motive as well as from the recovery of pistol (P.6). At the time of the registration of F.I.R, the motive was portrayed as a previous theft incident, statedly committed by Mudassar Shah (appellant) and Ishfaq (since acquitted). Likewise, from the narration of facts incorporated in the crime report (Exh.PA/1) it evinces that previously Abdul Ghaffar also got registered a case against the accused persons. However, during trial, neither the detail of the incident of theft i,e, date, time or the manner was mentioned nor any supporting material was brought on record. The motive could very easily be proved in the instant case either by narrating the detail of the occurrence or by placing on record the copy of the application or the F.I.R pertaining to the theft occurrence. In this backdrop, this Court is of the view that he motive remained unproved.
16. According to record, during the course of investigation, the appellant led to the recovery of pistol .30 bore (P.6) According to the report of Forensic Science (Exh.PR), the pistol (P.6) matched with the crime empty (P.1) secured the crime scene. However, the perusal of the record reveals that the recovery of the pistol is of no legal significance as the pistol and the empty was forwarded to PFSA together on 09.11.2010. In this respect, reliance can be placed to the case of Nasrullah alias Nasro v. The State (2017 SCM R 724) wherein the Hon'ble Supreme Court of Pakistan observed as under: The alleged recovery of a pistol from the appellant's possession during the investigation was legally inconsequential because the report of the Forensic Science Laboratory brought on the record shows that the recovered pistol and the secured crime-empties had been received by the Forensic Science Laboratory together on one and the same day."
17. From above discussion, it evinces that the ocular account is not found to be worthy of any credence as the statements of the two witnesses are found to be in conflict with each other and their statements are also proved to be contrary to the natural human conduct. Moreso, the testimony of Muhammad Sadiq is also not found to be in consonance with the medical evidence.
Likewise, the prosecution also failed to prove the prompt reporting of the F.I.R by withholding the important evidence of Javaid constable. Lastly, the failure to prove motive and the legal infrmity pertaining to the report of Forensic Science Laboratory left the prosecution case without any corroboration.
18.Though, during his examination under Section 342, Cr.P.C., the appellant took a specific plea, however, since the prosecution case has been disbelieved, hence, there is no further need to enter into his defence. In this regard, this Court is enlightened by the observation of the Hon'ble Supreme Court of Pakistan in the case of Azhar Iqbal v. The State (2013 SCM R 383).
19. The said facts and circumstances, accumulatively, are giving rise to a reasonable doubt which entitles the appellant to acquittal. Consequently, the appeal filed by Muddassar Shah (appellant) i,e, Criminal Appeal No, 145 of 2012 is accepted and he is acquitted of the charge. He shall be released forthwith if not required to be detained in any other criminal case.
20. For the foregoing reasons, Criminal Revision No, 116 of 2012 is dismissed.