SADIQ MAHMUD KHURRAM, J. --- Mumtaz Ahmad, appellant, was tried by the learned Addl.
Sessions Judge, Hasilpur, in case F.I.R. No. 192 of 2008, dated 20.05.2008 registered at Police Station Saddar, Hasilpur, District Bahawalpur, in respect of offence under Section 302, P.P.C., for committing Qatl-e-Amd of the complainant's daughter namely Mst. Gulzar Bibi. The learned Trial Court vide judgment dated 30.03.2015 convicted Mumtaz Ahmad, appellant and sentenced him as infra:-- Mumtaz Ahmad son of Ghulam Qadir: Death under Section 302(b), P.P.C. as Tazir for committing Qatl-e-Amd of Gulzar Bibi deceased and pay Rs. 1 Lac as compensation under Section 544-A, Cr.P.C. to the legal heirs of deceased and in default thereof, to further undergo six months of simple imprisonment. The convict was ordered to be hanged by his neck till dead.
2. Feeling aggrieved, Mumtaz Ahmad (convict) lodged Criminal Appeal No. 179-J of 2015 against his conviction and sentence. The learned Trial Court submitted Murder Reference No. 21 of 2015 under Section 374, Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant Mumtaz Ahmad. We intend to dispose of Criminal Appeal No. 179-J of 2015 and Murder Reference No. 21 of 2015 through this single judgment.
3. Precisely the facts necessary, as divulged in the statement of Muhammad Siddique (PW-1) are as under:-- "Mst. Gulzar Mai was my daughter, 8/9 years ago, she was married to accused Mumtaz present in the Court. One son and daughter born out of wedlock. 21/2 years age relations between became strained. After that Gulzar Mai deceased left the house of her husband and went to the house of her maternal grandfather namely Khuda Bakhsh. Mumtaz accused approached me for reconciliation. I asked him to go back, assured that in the evening I will go to the house of Khuda Bakhsh and try for reconciliation. In the evening I went to the house of Khuda Bakhsh were I asked my daughter Gulzar Bibi for compromise with the accused where she refused to compromise with her husband. After that I informed the accused Mumtaz that Gulzar Mai is not willing to compromise with you. I stayed in the house of Khuda Bakhsh and in the morning I woke up and was on the way to visit my crops. After 3/4 paces Ali Sher and Muhammad Waris PWs met me on the way. They also told me that they will also visit your crop. I alongwith PWs was going towards my crop fields, Gulzar Mai was ahead of us, in our view when Gulzar Mai was entering in the sunflower fields, suddenly she made hue and cry and returned back. Mumtaz accused present in the Court came out from the sunflower field and fired pistol, which hit on the back of Gulzar Mai and she fell down with face towards earth. I alongwith PWs tried to apprehend the accused and also made hue and cry. The accused threatened us with dire consequences. The accused made his escape good and fled away from the place of occurrence. I alongwith PWs approached Gulzar Mai. She succumbed to the injuries on the spot. Accused Mumtaz murdered my daughter Gulzar Bibi due to her refusal to compromise with him. On our hue .and cry Khuda Bakhsh and other people attracted the place of occurrence. Leaving All Sher and Haji Khuda Bakhsh with the dead- body, I went to PS to report the matter alongwith Waris PW. At PS, I narrated the occurrence to Thanedar who recorded the F.I.R. Exh.PA..........."
4. The learned Trial Court framed charge against the appellant on 28.01.2010 to which he pleaded not guilty and the learned Trial Court proceeded to examine the prosecution witnesses.
5. The prosecution in order to prove its case got recorded statements of as many as eleven witnesses. The ocular account of the case was furnished by Muhammad Siddique, (PW-1), Ali Sher (PW-2) and Muhammad Waris (PW-3), Muhammad Iqbal (PW-5) stated that he witnessed the recovery of blood-stained earth from the place of occurrence which was taken into possession through recovery memo. (Exh.PF) and also an empty which was taken into possession through recovery memo. (Exh.PG). This witness further stated that he identified the dead-body of the deceased and the last worn clothes of the deceased were also taken into possession in his presence through recovery memo. (Exh.PH). Muhammad Mumtaz, Patwari (PW-6) prepared the scale site place of occurrence (Exh.PJ), Abu Bakar 1969/C, PW-7 stated that on 20.05.2008 he escorted the dead-body of the deceased to THQ Hospital, Hasilpur where post-mortem was conducted and the last worn clothes and a sealed phial containing bullet was handed over to the Investigating Officer by him. Jabbar Ali, 1813/HC (PW-8) stated that on 25.05.2008, Mehmood Ahmad, S.I. (PW-11), the Investigating Officer of the case, handed over to him two parcels for safe custody which he on 15.06.2008 handed over to Muhammad Hussain 1301/C (PW-9) for the onward transmission to Forensic Science Laboratory, Muhammad Adrees 449/C (PW-10) stated that on 02.06.2008 he witnessed the recovery of pistol (Exh.P1) from the possession of Mumtaz Ahmad, appellant, which was taken into possession through recovery memo. (Exh.K), Mehmood Ahmad, S.I., (PW-11) investigated the case and detailed the facts of the same in his statement before the learned Trial Court.
6. The prosecution also got examined Doctor Kalsoom Iqbal (PW-4), who was posted at THQ Hospital, Hasilpur as W.M.O. on 20.05.2008. On the said date Doctor Kalsoom Iqbal (PW-4), conducted the post-mortem examination of the deceased Mst. Gulzar Bibi and issued the post- mortem report (Exh.PD/1-4). She observed as under:-- "EXTERNAL EXAMINATION "A dead-body of a female well-built her eyes are closed, her mouth semi-opened aged about 24 years. She is wearing shalwar, Kameez pink colour stained with blood, Dopatta dark brown coloured stained with blood. All the clothes were signea by me and handed over to the police. She was lying supine on post-mortem table. Rigor mortis fully developing, post-mortem staining were present on the dependent parts of the body. Following injuries are noted on external examination."
INJURIES There was a lacerated wound penetrating tide measuring about 2 cm x 1.5 cm blind deep on the back middle of left lateral side close to the veritable column, margins of the wound were inverted and black. Corresponding hole of the injury is also present on the kameez. On dissection, the wound there are haematoma was present under lying muscles. Further dissection the projectile was moving towards the heart and damage the heart lower part and also damage lower lobe of the left lung and left love of left liver. Upper part of stomach is also damaged. Projectile also damaged the left pleura of left lung. Large blood vessels of the chest cavity is also damaged.
Chest cavity and abdominal cavity full with blood single large pellet was found from the chest cavity and is sealed in bottle handed over to the police. Exact wound is not present. ...................................
Remarks of Medical Officer After thorough internal and external post-mortem examination of the dead-body, I am of the opinion that the injury caused ruptured the heart and damaged the large blood vessels and ruptured the lower left lung and ruptured the lower lobe of the liver. All these damaged the vital organs and large blood vessels leading to acute haemorrhage shock and coma and death are sufficient to cause of death through ordinary course of life. The injury is anti-mortem in nature of are caused by some fire-arm weapon. The time between injury and death was between half an hour while the time between death and post-mortem is more 12 hours less than 24 hours."
7. On 04.10.2013, the learned ADPP gave up PW Muhammad Hanif being unnecessary. On 03.12.2014, the learned DDP closed the prosecution evidence after tendering the reports of Chemical Examiner (Exh.PM), Serologist (Exh.PN) and Forensic Science Laboratory, Punjab (Exh.PP).
8. After the closure of prosecution evidence, the learned Trial Court examined the appellant under Section 342, Cr.P.C. wherein he claimed that he had been falsely involved in the case. The appellant opted not to get himself examined under Section 340(2), Cr.P.C., however, he produced attested copy of suit titled "Muhammad Siddique, etc. v. Mumtaz Ahmad" (Exh.DH) and a power-of-attorney as (Exh.DH/2).
9. On the conclusion of the trial, the learned Addl. Sessions Judge, Hasilpur convicted and sentenced the appellant as referred to above.
10. The contention of the learned counsel for the appellant precisely is that whole case is fabricated and false. That the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence. Learned counsel further contended that the statements of Muhammad Siddique (PW-1), Ali Sher (PW-2) and Muhammad Waris (PW-3) are contradictory to each other. Learned counsel also argued that the medical evidence was not supportive of the prosecution case. Learned counsel also contended that PWs examined by prosecution were related to the deceased and interested. Learned counsel also argued that the recoveries were result of fake proceedings. Learned counsel finally submitted that the prosecution has totally failed to prove the case against the accused beyond the shadow of doubt.
11. On the other hand, learned Deputy Prosecutor General contended that the prosecution has proved its case beyond shadow of doubt by producing independent witnesses. He further submitted that there was no untoward delay in lodging of the F.I.R. Learned Deputy Prosecutor General further argued that the deceased died as a result of injuries suffered at the hand of the appellant. He further contended that the medical evidence also corroborated the statements of Muhammad Siddique (PW-1), Ali Sher (PW-2) and Muhammad Waris (PW-3). He further argued that the recovery of Pistol (Exh.P1) from the appellant also corroborated the ocular account. He contended that the appellant could .not establish any enmity with the prosecution witnesses and there was no occasion for the prosecution witnesses to substitute the real offender with the innocent in this case. Lastly, learned Deputy Prosecutor General prayed for the rejection of appeal.
12. We have heard the learned counsel for the appellant and learned Deputy Prosecutor General and with their assistance, have perused the record and evidence recorded during trial, judiciously.
13. The whole prosecution case revolves around the statements of Muhammad Siddique (PW-1), Ali Sher (PW-2) and Muhammad Waris (PW-3). These witnesses namely Muhammad Siddique (PW-1), Ali Sher (PW-2) and Muhammad Waris (PW-3) were related to each other. Their relationship with the deceased is also on record. Muhammad Siddique (PW-1) stated that Ali Sher (PW-2) was his cousin whereas Waris Ali (PW-3) was his brother-in-law (Sala). Moreover, Ali Sher (PW-2) admitted during his cross-examination that Muhammad Siddique (PW-1) was his paternal cousin (Chachazad). We have also noticed that none of the witnesses namely Muhammad Siddique (PW- 1), Ali Sher (PW-2) and Muhammad Waris (PW-3) were residents of the place of occurrence.
Muhammad Siddique (PW-1) during cross-examination admitted that his residence was at a distance of 10/12 kilometers from the place of occurrence. Furthermore, Ali Sher (PW-2) also admitted during cross-examination that his house was situated at a distance of two kanals from the place of occurrence whereas the house of Waris Ali (PW-3) was also situated at a distance of two kanals from the place of occurrence. In view of these admissions by the witnesses namely Muhammad Siddique (PW-1), Ali Sher (PW-2) and Muhammad Waris (PW-3) it was necessary for them to substantiate that they were present at the place of occurrence at the time of occurrence as they were "chance witnesses". During the course of trial the three witnesses remained unable to prove their reason for presence at the place of occurrence at the time of occurrence. Muhammad Siddique (PW-1) while appearing before the learned Trial Court stated that on the day of occurrence, after he woke up, he was on his way to visit his crops. This witness Muhammad Siddique (PW-1) was the resident of Mauza Qutab Pur which was at a distance of 10-12 kilometers from the place of occurrence, hence, his explanation of visiting his crops cannot be accepted at all.
We have also noticed that this witness, Muhammad Siddique (PW-1), further in order to justify the presence of other two witnesses stated that he met Ali Sher (PW-2) and Muhammad Waris (PW-3) who as per his statement told him that they will also accompany him towards his crops i.e. the crops of Muhammad Siddique (PW-1). This statement of Muhammad Siddique (PW-1) is indirect contrast to the statements of Ali Sher (PW-2) and Muhammad Waris (PW-3) who both stated that actually they were going for a visit to their own crops and when they purportedly met with Muhammad Siddique (PW-1) and then they all proceeded towards their own crops. Muhammad Siddique (PW-1) also admitted during cross-examination that he did not mention in the F.I.R. that he was going towards his own fields. This lays bare the fake reason developed by the said three witnesses namely Muhammad Siddique (PW-1), Ali Sher (PW-2) and Muhammad Waris (PW-3) to justify their presence at the spot at the time of occurrence. There was no occasion for them to be present there. We have also, perused the scaled site plan of the place of occurrence (Exh.PJ) as prepared by Muhammad Mumtaz, Patwari (PW-6) and the un-scaled site plan of the place of occurrence (Exh.PL) as prepared by the Mehmood Ahmad, S.I. (PW-11) and find that neither any house nor any land belonging to the three eye-witnesses is shown in the said site plans. The perusal of the above-mentioned site plans (Exh.PJ) and (Exh.PL) also discloses that the place of occurrence was situated in the land as owned by Muhammad Shafi Arain. It is an admitted fact that the said Muhammad Shafi Arain was not joined in the investigation of the case. In absence of physical proof of the reason for the presence of the witnesses at the crime scene the same cannot be relied upon. The statements made by the said eye-witnesses have failed to receive any independent corroboration or support. Reliance is placed on the case of Muhammad Rafiq v. The State (2014 SCM R 1698) wherein the august Supreme Court of Pakistan rejected the claim of witnesses who lived one kilometer away from the place of occurrence, but on the day of occurrence stated to be present near the spot as they were working as labourers, inasmuch as they failed to give any detail of the projects they were working on. Reliance is also placed on the case of Nasrullah alias Nasro v. The State (2017 SCM R 724) wherein the august Supreme Court of Pakistan observed as under:-- "In the case in hand the eye-witnesses produced by the prosecution lived eighty kilometers away from the scene of the crime, their stated reason for presence in the house of occurrence at the time of incident in issue had never been established through any independent evidence."
14. We have also noted with grave concern that the witnesses namely Muhammad Siddique (PW-1), Ali Sher (PW-2) and Muhammad Waris (PW-3) made dishonest and blatant improvements to their statements while appearing before the learned Trial Court. During the cross-examination of Muhammad Siddique (PW-1), Ali Sher (PW-2) and Muhammad Waris (PW-3) they were confronted with the said improvements to their statements. The witnesses made improvements to their statements as they had failed to observe the occurrence. While getting recorded the F.I.R. (Exh.PA), Muhammad Siddique (PW-1) had attributed firing with a "Carbine" a twelve bore pellet firing weapon, to Mumtaz Ahmad (Appellant). However, when Muhammad Siddique (PW-1) appeared as a witness before the learned Trial Court he improved upon his statement and stated that Mumtaz Ahmad (appellant) fired with a pisol. He was duly confronted with the F.I.R. (Exh.PA) wherein it was not so recorded. Muhammad Siddique (PW-1), in order to wriggle out of this error in his ocular account, tried to offer an explanation that the police had wrongly mentioned Carbine in the F.I.R. whereas he had got recorded otherwise. But during the same cross-examination he admitted that he had not filed any application before any forum complaining of wrong recording of the contents of the F.I.R. (Exh.PA). Similarly, Ali Sher (PW-2) had, in his statement recorded by the Investigating Officer, also ascribed firing with a "Carbine", to Mumtaz Ahmad (appellant). However, Ali Sher (PW- 2) during trial also improved upon his statement and stated that Mumtaz Ahmad (appellant) fired with a pistol. He, too, was duly confronted with his previous statement (Exh.DC) recorded by the Investigating Officer within it was not so recorded. Muhammad Waris (PW-3) had, in his statement recorded by the Investigating Officer, who ascribed firing with a "Carbine", to Mumtaz Ahmad (appellant). However, Muhammad Waris (PW-3) during trial also improved upon his statement and stated that Mumtaz Ahmad (appellant) fired with a pistol. He, too, was duly confronted with his previous statement (Exh.DF), recorded by the Investigating Officer, wherein it was not so recorded.
Furthermore, he Muhammad Waris (PW-3), was mmad Siddique (PW-1), Ali Sher (PW-2), and Muhammad Waris (PW-3) were confronted with their previous statements, hence their credit stands impeachconfronted with the fact that he had not mentioned the seat of fire in his previous statement (Exh.DF) recorded by the Investigating Officer. As the witnesses i.e., Muhammad Siddique (PW-1), Ali Sher (PW-2), and Muhammad Waris (PW-3) were confronted with their previous statements, hence their credit stands impeached and they cannot be relied upon. The august Supreme Court of Pakistan in the case of Muhammad Ashraf v. The State (2012 SCM R 419) took a serious notice of the improvements introduced by witnesses and rejected their evidence. We, thus, are satisfied that the evidence of Muhammad Siddique (PW-1), Ali Sher (PW-2) and Muhammad Waris (PW-3) has no intrinsic worth and is to be rejected. The august Supreme Court of Pakistan in a recent case reported as Muhammad Mansha v. The State (2018 SCM R 772) has enunciated the following principle:--- "Once the Court comes to the conclusion that the eye-witnesses had made dishonest improvements in their statements then it is not safe to place reliance on their statements. It is also settled by this Court that whenever a witness made dishonest improvement in his version in order to bring his case in line with the medical evidence or in order to strengthen the prosecution case then his testimony is not worthy of credence."
15. Learned Deputy Prosecutor General has laid much stress on the promptitude in reporting the matter to the police. However, we have noticed that Muhammad Siddique (PW-1) admitted during cross-examination that when he lodged the F.I.R. (Exh.PA) Muhammad Iqbal (PW-5) was also with him. Muhammad Iqbal (PW-5) during his cross-examination admitted that they went to the Police Station for the registration of case at 12.30 noon. This unchallenged statement of Muhammad Iqbal (PW-5), clearly establishes that the F.I.R. was not recorded at 6.45 a.m. as shown, rather the said time has been wrongly mentioned in the same. This statement of Muhammad Iqbal (PW-5) proves that the F.I.R. (Exh.PA is a manoeuvred and a compromised document, unworthy of any reliance and incapable offering any corroboration.
16. We have also observed that Dr. Kalsoom lqbal (PW-4) has given the probable duration of time between death and post-mortem as 12 to 24 hours. During cross-examination Dr. Kalsoom Iqbal (PW-4) further submitted that it was incorrect that the death of the deceased had occurred 7-8 hours prior to the post-mortem rather she was of the view that the death had occurred more than 12 hours before the post-mortem examination. This statement of Dr. Kalsoom Iqbal (PW-4) totally fragments the prosecution case as it is established that the prosecution failed to even establish the correct time of occurrence. We have also noted that despite the claim of the prosecution that the matter was reported to the police at 06.45 a.m., when the F.I.R. (Exh.PA) was recorded, the post- mortem examination on the person of the deceased was conducted after a delay of about five hours from the time of registration of F.I.R. (Exh.PA) at 12.00 p.m. It has been repeatedly held by the august Supreme Court of Pakistan that such delay is reflective of absence of witnesses and the sole purpose of causing such delay is to procure the presence of witnesses and to further advance a false narrative to involve any person. The august Supreme Court of Pakistan in the case of Khalid alias Khalidi and two others v. The State (2012 SCM R 327) has held as under:-- "The incident in the instant case took place at 2.00 a.m., F.I.R. was recorded at 4/5 a.m., Doctor Muhammad Pervaiz medically examined the injured person at 4.00 a.m. but conducted the post- mortem examination of the deceased at 3.00 p.m. i.e. after about ten hours, which fact clearly shows that the F.I.R. was not lodged at the given time."
We have also observed that Dr. Kalsoom Iqbal (PW-4) opined that the margins of the wound were black. When a fire shot is made from a distance of less than three feet, there would be blackening or charring marks on the corresponding wounds, as in the present case. As per the site plans (Exh.PJ) and (Exh.PL) the distance between the place where corpse of deceased was lying and where the accused was present was eighteen karams (99 feet). Such condition revealed that medical report and site plans (Exh.PJ) and (Exh.PL) were contradictory to each other, which has given a clear inference that the witnesses were not present at the spot and had not witnessed the occurrence. Therefore, the medical evidence does not support the ocular account in the present case.
17. Learned Deputy Prosecutor General has laid much stress that Mumtaz Ahmad (appellant) had the motive to do away with the deceased. We have also observed that regarding motive the prosecution did not produce any independent evidence. A tainted piece of evidence cannot corroborate another tainted piece of evidence. Muhammad Siddique (PW-1) admitted during cross-examination that his daughter never came to his house after quarrelling with her husband and he did not know for what the quarrel had taken place between the spouses as he was in his own house. This witness further admitted that even at the time of appearing before the learned Trial Court, he did not know as to why the spouses and quarreled. This admission of Muhammad Siddique PW-1 clearly demonstrates that the witnesses were not in knowledge of the motive of the occurrence.
18. Learned Deputy Prosecutor General has also relied upon the recovery of pistol (Exh.P-1) from Mumtaz Ahmad (appellant). A perusal of the report of Forensic Science Laboratory, Punjab (Exh.PP) reveals that crime empty of .30 bore and one pistol of .30 bore were received on the same day i.e. 30.6.2008 at the Forensic Science Laboratory, Punjab. The august Supreme Court of Pakistan has declared inconsequential any recovery when the weapon and the crime empties are sent together for analysis. The august Supreme Court of Pakistan in the case of Nasrullah alias NASRO v. The State (2017 SCM R 724) at page 727 has held 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"
Similar principle has been enunciated in the reported cases of Muhammad Javaid v. The State (2016 SCM R 2021) and Ali Sher v. The State (2008 SCM R 707).
19. Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of Mumtaz Ahmad, appellant, in the present case. It is settled principle of law that for giving benefit of doubt, it is not necessary that there should be so many circumstances rather if only a single circumstance creating reasonable doubt in the mind of a prudent person is available then such benefit is to be extended to an accused not as a matter of concession but as of right.
The' august Supreme Court of Pakistan in the case of Muhammad Mansha v. The State (2018 SCM R 772) has enunciated the following principle:-- "Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances crecuing doubt. If there is circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession but as a matter of right."
Reliance is also placed on the judgment of the august Supreme Court of Pakistan Muhammad Akram v. The State (2009 SCM R 230) in which it has been observed in paragraph No. 13 of page 236 as infra:-- "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, Criminal Appeal No. 179-J of 2015 filed by Mumtaz Ahmad, appellant is accepted, the conviction and sentence of the appellant awarded by the learned Trial Court through the impugned judgment are hereby set aside. Mumtaz Ahmad, appellant is ordered to be acquitted. He is directed to be released forthwith if not required in any other case.
21. Murder Reference is answered in Negative and death sentence of Mumtaz Ahmad, appellant is Not Confirmed.