Asjad Javaid Ghural, J.--Through the afore-titled Criminal Appeal No, 44-J of 2013 under Section 410, Cr.P.C. appellant Muhammad Sarfraz has challenged the vires of judgment dated 29.05.2013 passed by a learned Additional Sessions Judge at Mailsi in case FIR No, 485 dated 9.7.2012, in respect of an offence under Section 302, PPC, registered at Police Station, Mitru District V ehari whereby he was convicted and sentenced as under:-- Under Section 302(b), PPC Death and to pay the compensation of Rs, 100,000/- under Section 544 (A), Cr .P.C. to the legal heirs of deceased Muhammad Amin, and in default thereof to further undergo simple imprisonment for six months.
2. Murder Reference No, 40 of 2013 for confirmation or otherwise of death sentence of appellant Muhammad Sarfraz shall also be decided through this single judgment.
3. The prosecution story unfolded in the crime report Ex.PF/1 registered on the complaint of Ahmed Sultan (PW-6) is that on 30.10.2012 at about 11:00 p.m. he along-with his uncle Muhammad Kabeer and Ghulam Muhammad was sitting in the Courtyard of his house, whereas his father Mian Muhammad Ameen was present inside the room and watching T.V. The appellant came inside the house and asked about Mian Muhammad Ameen (deceased), upon which he told him that his father was watching T.V in the room. He entered in the room while he along-with his uncle Kabeer and Ghulam Muhammad followed him. The appellant while entering into the room made a straight fire shot hitting near the chin. They tried to apprehend him upon which he threatened that if someone comes near to him, he would not spare him. On our hue and cry, many people of the vicinity gathered there and the accused fled away from the scene of occurrence.
Motive behind the occurrence was that appellant, being real brother of the deceased, had sold out his agricultural land and wanted to grab the cotton factory of his father .
4. Irshad Hussain S.I (PW-11) had inspected the place of occurrence on 09.07.2012, prepared injury statement Ex:PA and inquest report Ex.PB of the deceased and escorted the dead body to mortuary , rough site-plan of the place of occurrence Ex.PM, secured the blood-stained earth vide recovery memo. Ex.PH, took into possession one empty bullet of pistol (P-6) vide recovery memo. Ex.PK, took into possession a blood-stained cot (P-5) vide recovery memo. Ex.PJ, recorded the statements of witnesses under Section 161, Cr .P.C.
On 16.07.2012, investigation of this case was handed over to Shamshad Ali S.I PW-10, who arrested appellant Sarfraz from Bus stop Dokotta, on 08.08.2012, who led to the recovery of a pistol 30-bore as (P-3) alongwith two bullets P-4/1-2 on 17.08,2012, which was taken into possession vide recovery memo. Ex.PL, send the accused to judicial lock up, prepared incomplete challan against the accused on 20.08.2012.
5. Dr. Ahmed Faraz (PW-1) had conducted post-mortem examination on the dead body of deceased Muhammad Ameen on 09.07.2012 at 1 1:45 p.m. and observed the following injury:
1. Lacerated wound 2 x 11/2 c.m. below chin. Oval shape. Collaring around going deep with burn mark above the wound measuring 2 x 2 cm. On dissection two tracheal cartilages damaged with adjacent tissue and vessels. Hyoid bone normal.
The cause of death in this case was the fire-arm injury leading to tracheal damage leading to respiratory failure and vascular injury by fire-arm. Probable duration between injury and death. Zero to five minutes approximately .
Between death and post-mortem 18 to 36-hours approximately .
6. At the commencement of the trial, learned trial Court had framed a charge against the appellant, to which he had pleaded not guilty and claimed to be tried.
7. The prosecution had produced 11-witn esses besides the reports of Punjab Forensic Science Agency (Ex.PN & Ex.PO). The appellant, in his statement under Section 342, Cr.P.C. had denied and controverted all the allegations of fact leveled against him, he neither opted to make statement under Section 340(2), Cr.P.C. nor had he produced any witness in his defense.
8. Learned trial Court, upon conclusion of the trial, convicted and sentenced the appellant as stated above. Hence, the present appeal as well as the connected Murder Reference.
9. Learned counsel for the appellant submits that the appellant is quite innocent and had been falsely implicated in the said occurrence; that the appellant being real brother of the deceased could not even think to commit the murder of his real brother , who had been providing financial assistance to him for the last many years; that in fact it was a blind Murder committed by some unknown persons and the dead body remained lying in the residential room of the deceased for more than 24-hours; that the occurrence had been reported to the police with an inordinate delay of more than 24-hours; that no explanation has been brought on record, which infers that the false story had been cooked up after due deliberation and consultation; that the post-mortem examination had been conducted with the delay of more than 24 hours; that the duration between death and post-mortem was 18-36 hours, which by itself speaks volume with regard to the presence of eye-witnesses at the venue of occurrence; that there was foul smell in the room, the place of occurrence, where the dead body was taken to mortuary for conducting post- mortem examination and the Medical officer had observed few ants on the dead body of the deceased; that the only conclusion would be drawn that dead body remained unattended for sufficient time; that the motive part of the occurrence, has not been proved through any independent source of evidence and even the recovery of weapon of offence i,e, pistol (P-3) remained incons equential. At the end, a prayer has been made for the acquittal of the appellant.
10. Conversely , learned Deputy Prosecutor General appearing for the State has controverted the arguments advanced by the learned counsel for the appellant while submitting that the occurrence had taken place in the presence of prosecution witnesses but due to such close relationship and intervention of the Baradri, the complainant could not timely reported the matter to the police; that there was no occasion for the prosecution to falsely implicate the real brother of the deceased in the murder in issue; that the ocular account is fully corroborated with the medical evidence; that it was wrongly suggested about the foul smell in the room; that the matter had been reported to the police with considerable delay; that obviously the post-mortem could have been conducted after registration of the case , thus, the delayed conducting the autopsy of the dead body of the deceased has no bearing upon the fate of the case; that both the prosecution witnesses remained affirmed and consistent on all material particulars; that the learned trial Court has well-appra ised the evidence available on record, which does not warrant any interference by this Court.
11. We have heard learned counsel for the appellant, learned Deputy Prosecutor General appearing for the State and have perused the record with his assistance.
12. This unfortunate incident had taken place on 08.07.2012 at 11:00 whereas the matter was reported to the police by Mian Ahmed Sultan, son of the deceased on the next night i,e, 09.07.2012 at 11:15 p.m. with an inordinate delay of more than twenty-four hours. The complainant has not suggested in the crime report with regard to the explanation for delaying reported the matter to the police. Although the complainant had shown himself to be present in the Courtyard of the house alongwith Mian Ghulam Muhammad ( PW-9) and Mian Muhammad Qadir but the fact remains that the foul smell as admitted by Ijaz Lateef, draftsman (PW-2) who had visited the place of occurrence on 11.07.2012 was coming out from the room where the dead body was lying. The delayed reporting the matter to the police itself indicates that the case was registered after due deliberation and consultation and such afterthought story adversely affects the prosecution case. We seek guidance from the case titled "Muhammad Rafique us. The State" (2016 SCMR 1698). The relevant extract is reproduced for ready reference: "It is an admitted position that no blood-stained earth had been collected from the stated place of occurrence and also that the F.I.R had been lodged with a noticeable delay and post-mortem examination of the deadbody had also been conducted with significant delay in the following afternoon. All these factors had pointed towards a real possibility that the murder in issue had remained unwitnessed and time had been consumed by the local police in procuring and planting eye-witnesses and in cooking up a story for the prosecution."
13. The mainstay of prosecution case was the testimony of Mian Ahmed Sultan the complainant/son of the deceased appeared (PW-6) and Mian Ghulam Muhammad (PW-9). The complainant while appearing in the witness box had deposed what he had stated at the time of reporting the matter to the police, stating therein that on 08.07.2012 at about 11:00 p.m. he along-with his uncle Muhammad Kabeer and Ghulam Muhammad was sitting in the Courtyard of his house, whereas his father Mian Muhammad Ameen was watching T.V inside the room.
Appellant Sarfraz came inside the house and asked about the deceased, upon which the complainant told him that his father was watching T.V in the room. He entered in the room whereas the complainant along-with his uncle Kabeer and Ghulam Muhammad followed him. The appellant while entering into the room made a straight fire shot hitting near the chin of Mian Muhammad Ameen. They tried to apprehend the appellant upon which he threatened that if someone comes near to him, he would be done to death. Ghulam Muhammad (PW-9) a real uncle of the complainant had deposed almost identical story . They were cross-examined by the defense, who had succeeded to shatter the credibility of the witnesses. They could not remained affirm or qualify the test of cross-examination as the complainant himself admitted that he along-with his mother and sisters was residing separately in the house of his uncle and his father had conducted two marriages. There was no issue out of his first wife namely Mst. Naseem Ameen and she was resident of Multan. She being Head Nurse in Nishter Hospital Multan residing at Multan which shows that the father of the complainant was all alone residing in his house where he had been done to death by someone.
14. After receiving information with regard to the alleged occurrence the police reached at the place of occurrence.
Khawar Hussain 1194/C, PW-4 who was deputed to escort the dead body for the mortuary , he had stated in his cross-examination that there was foul smell of blood at the spot when they reached there, the dead body was recovered from the room and the people present at the spot told them about the dead body . He had further stated that the dead body was on the cot and the same was in sitting position. This score alone is sufficient to infer that the dead body remained unattended till the arrival of the police at the venue of occurrence. Similarly , Ijaz Latif, draftsman (PW -2) reached at the place of occurrence on 1 1.07.2012, he had stated during cross-examination that: "I visited the spot. I have entered into the room of occurrence; there was foul smell in the room i.e place of occurrence. I have not stayed in the said room for long time. "
The foul smell could only be occurred where the dead body remained lying unattended pooled with blood. The situation as narrated by Ijaz Lateef (PW-2) and Khawar Hussain Constable (PW-4) itself suggests that no one from the prosecution witnesses was present at the scene of occurrence and even the complainant himself had stated that he had not touched the body or removed the blood and only put it on the cot before the arrival of the police.
We can safely say that had someone been present there, he would have informed the matter to the police in time or at least lay the dead boy on the cot whereas the body remained in sitting position till the arrival of the police for escorting the same to the mortuary . Another aspect of the case is that when post-mortem examination was conducted on the dead body of the deceased the Medical Officer had observed the presence of few ants, on the dead body of the deceased at the time of autopsy which negates the entire prosecution version qua the presence of the witnesses at the place of occurrence.
15. Ahmad Sultan the complainant (PW-6) had stated in his cross-examination that his father was prominent, social and political figure, he did not know whether the matter of death/murder of his father was reported in the newspaper , he had neither read nor heard any news published in the newspaper that his father was done to death and this matter was brought to light two days after the occurrence. However , he had denied the suggestion that the publication in the daily Jang dated 11.07.2012 that the legal heirs of the deceased got knowledge about the murder after two days of the occurrence and the same story was published in the daily newspaper `Khabrain'. He had admitted that he had not made any rebuttal of above said news, which is impo rtant to be discussed that after having knowledge of his father's murder the complainant reached at the place of occurrence and become a witness. Due to the fact that the complain ant had not rebutted any of the news published in the daily newspapers.
The man can lie but the circumstances could not. The circumstances itself speaks volume that the dead body remained unwitnessed and unattended for a long time and foul smell was coming out from the room then someone informed to the police and the legal heirs of the deceased with regard to the allege d occurrence and obviously the witnesses of ocular account were not present at the place of occurrence.
16. The motive as set up by the prosecution in the crime report was that the appellant being real brother of the deceased had sold out his agricultural land and wanted to grab the cotton factory from the deceased but the complainant who had admitted in his cross-examination that his deceased fathe r used to financially support his uncle (the appellant). He further admitted to be correct that son of the appellant and his daughter used to live in their house situated in Mouza Bhadda. He has further stated that his mother and sister used to bring up the above said children of the appellant. He had further stated that they are still bringing up and looking after the children of the appellant as his deceased father was giving Rs, 70,000/- to his uncle (the appellant). In this scenario it cannot be claimed that there was any dispute between both the brothers as the deceased was already providing financial support to the appellant and no such untoward incident had taken place prior to the alleged occurrence and even the 'children of the appellant are being brought up by the complainant party and, thus, the motive part of the occurrence is badly formulated which is even non-existent.
17. Dr. Ahmed Faraz (PW-1) had conducted post-mortem examination on the dead body of deceased Muhammad Ameen on 09.07.2012 at 1 1:45 p.m. and observed the following injury:
1. Lacerated wound 2 x 1 cm. below chin. Oval shape. Collaring around going deep with burn mark above the wound measuring 2 x 2 cm. On dissection two tracheal cartilages damaged with adjacent tissue and vessels. Hyoid bone normal.
The cause of death was fire-arm injury leading to tracheal damage leading to respiratory failure and vasulary injury by fire-arm. The probable duration between injury and death was Zero to five minutes, whereas between death and postmortem examination between 18 to 36 hours approximately .
The delay of 18 to 36 hours in the post-m ortem examination on the dead body of the deceased indicates the real possibility that the delay had been caus ed for cooking up a false story and to manage the eye-witnesses. We seek guidance from the case titled "Shahbaz versus The State" (2016 SCMR 1763 ). The relevant extract is reproduced for ready reference: Post-mortem examination of the dead body of Aftab Akhtar deceased was noticeably delayed as the same had been conducted in the following mornin g and the duration between death and post-mortem examination was recorded as about eleven hours. It appears that time had been consumed by the complainant party and the local police in procuring and planting eye-witnesses and in cooking up a story for the prosecution."1/2 The purpose of post-mortem examination is always just to ascertain the cause of death, number of injuries, locale of injuries, duration between injury and death and kind of weapon used. The report indicates that it was an unnatural death caused by fire-arm weapon yet it alone is not sufficient to raise finger towards any real culprit, thus, the medical evidence lends no support to the ocular account.
18. Appellant Muhammad Sarfraz was arrested on 08.08.2012 and during investigation, in pursuance of his disclosure he led the police party and got recovered a pistol .30-bore (P-3) on 17.08.2012, which was sent to the office of Punjab Forensic Science Agen cy for its comparison with the crime empty secured from the place of occurrence by the Investigating Officer during his first visit. The said crime empty had already been sent to the aforesaid office on 15.08.2012. The report of aforesaid office was received with positive result. We have observed that the appellant was arrested in this case on 08.08.2012, whereas the empty was sent to the office of Punjab Forensic Science Agency on 15.08.2012, after seven days of the appellant's arrest. The crime empty remained lying in the Mall Khana for about one month and seven days and had not been sent to the aforesaid office, which create serious doubt in the veracity of the prosecution evidence. It appears that the empty which was sent to the office of ballistic expert, was manoeuvred after firing with the pistol recovered at the instance of the appellant and then sent the same to the aforesaid office. This practice of the police officers is not approved by the Superior Courts and, thus, the positive report of the Punjab Forensic Science Agency Ex.P.O lends no the report to the prosecution and the same remained inconsequential. We seek guidance from the case titled "Nazeer Ahmed vs. The State" ( 2016 SCMR 1628 at page 1631). The relevant extract is reproduced for ready reference: "The crime-empty secured from the place of occurrence was sent to the Forensic Science Laboratory after recovery of the gun rendering such recovery to be legally unacceptable and the medical evidence had contradicted the ocular account in respect of the level of fire at the deceased."
19. Having scanned the entire prosecutio n evidence we are of the considered view that the prosecution has not been able to prove the charge against the appellant beyond reasonable shadow of doubt. The witnesses of ocular account produced by the prosecution could not qualify the test of cross-examination and the circumstances show some other picture of the alleged occurrence. Firstly , inordinate delay in reporting the matter to the police i.e more than twenty-four hours without any expla nation. Secondly , the delay in post-mortem itself indicates that a false story had been cooked up for false implic ation of the appellant. Thirdly , the deceased being a political figure of the area, the news with regard to his murder that the dead body remained unatt ended for two days has been mentioned in the daily newspapers and that part of the evidence has not been rebutted by the prosecution .
Fourthly , there was a foul smell in the room where the dead body was lying and it was in the sitting position on the cot-till the arrival of the police. Fifthly , the Medical Officer had observed some ants on the dead body , which shows that the dead body remained unattended for sufficient time. We have taken the evidence from every angle and reached at the irresistible conclusion that it was a blind murder committed by someone while entering into the house of the deceased and the body remained unattended for long time when foul smell came out of the house, someone had seen the dead body and reported the matter to the heirs of the deceased and the police as well but the claim of the prosecution that they were present at the time of occurrence and witnessed the same is next to nothing. The motive part of the occurrence has not been proved beyond reasonable shadow of doubt and the recovery of weapon of offence remained inconsequential. There is no iota of evidence, which could be linked against the appellant towards the murder in issue. Even otherwise, it is evident that the deceased being real brother of the appellant had cordial relations with him prior to the alleged occurrence. The prosecution has badly failed to prove the presence of witnesses at the venue of occurrence to substantiate the charge against the appellant. A single doubt is always sufficient to tilt the scale of justice in favour of the accused but the case in hand is replete with doubts. We seek guidance from the case titled "Muhammad Akram vs. The State" (2009 SCMR 230 at page 236). Relevant extract is reproduced for ready reference: "It is an axiomatic principle of law that in case of doubt, the benefit 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 Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance 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."
20. For what has been discussed above, the Criminal Appeal No, 44-J of 2013 filed by appellant Muhammad Sarfraz is allowed his conviction and sentence awarded by the learned trial Court are set aside and he is acquitted of the charge by giving benefit of doubt to him. The appellant is directed to be released forthwith from jail, if not required to be detained in connection with any other case.
21. Murder Reference No, 40 of 2013 is answered in NEGA TIVE and the Death sentence awarded to appe llant is not confirmed.