Asjad Javaid Ghural, J.--Through this criminal appeal under Section 410, Cr.P.C., appellant Tasaddaq Hussain has challenged the vires of judgment dated 19.02.2009 passed by the learned Additional Sessions Judge, Okara in private complaint titled "Muzamal Hussain versus Tasaddaq Hussain alias Idnan etc.' in respect of offences under Section 302 & 34, PPC arising out of case FIR No,31 1 dated 22.07.2006, in respect of offences under Sections 302 & 34, PPC, registered at Police Station, Gogera, District Okara whereby he was convicted and sentenced as under:-- Under Section 302(b), PPC Imprisonment for life and to pay Rs, 1,00,000/- as compensation under Section 544, Cr.P.C. to the legal heirs of deceased and in default thereof, to further undergo simple imprisonment for six months. He was held entitled for the benefit of Section 382-B, PPC.
2. The prosecution case is that complainant Muzammal Hussain (PW-3) made application (Ex.PC) for the registration of case alleging therein that on 21.07.2006 at about 06:00 p.m. he along with his brother Muhammad Yasin, Muhammad Zahid Hussain, Ishtiaq Hussain and Haji Muhammad was coming back to his home after preparing his land for maize crop and when they reached near Wan Mahtam Wali, all of a sudden Falak Sher alias Papu (since dead), Tasaddaq Hussain (appellant) armed with fire-arm weapons along with Allah Ditta and an unknown accused armed with club came out of the crop of "Jawar". Falak Sher alias Papu raised a Lalkara to teach a lesson to Muhammad Yasin and made a fire shot which hit at the right side of flank and the fire shot made by Tasaddaq Hussain hit at the left shoulder of Yasin who fell down. All the accus ed persons started beating lying Yasin with kicks and Butt of their respecti ve weapons. On the report of firing peop le. of the vicinity attracted there, whereupon the accused persons succeeded to flee away from the place of occurrence while raising Lalkaras.
Motive behind the occurrence was that 15/16 days earlier to the occurrence Falak Sher alias Papu was teasing the women servant (Mazara) of the deceased , who beseeched the appellant and restrained to visit his land. Falak Sher had extended threats to the deceased of taking the revenge.
3. Muhammad Akram, SI (CW-6) drafted the complaint on 22.07.2006, visited the place of occurrence, prepared rough site-plan of the place of occurrence and secured blood-stained earth. He made application for recording the statement of injured at Jinnah Hospital, Lahore but the injured was not in a position to make statement. On 01.08.2006 he was informed by Zahid Hussain PW that the injured had expired whereupon he visited Jinnah Hospital, prepared inquest report, injury statement and escorted the dead body to the mortuary . He amended offence under Section 302, PPC on 01.08.2006 and recorded the statements of witnesses under Section 161, Cr.P.C. He recorded the supplementary statement of the complainant on 22.07.2006.
4. During investigation conducted by Zahid Ramzan, SI (CW-8), appellant Tasadaq Hussain, and co-accused Allah Ditta and Rana Suleman were found to be not involved in this occurrence.
5. Maqsood Hussain, Inspector (CW-9), under the supervision of SSP RIB, Sheikhupura joined both the parties with the investigation of this case on different dates and reached at the conclusion that Falak Sher was involved in this occurrence whereas Tasadaq Hussain, Allah Ditta and Suleman were not involved in this occurrence.
6. Feeling aggrieved of the police investigation the complainant constrained to file the aforementioned private complaint.
7. Dr. Muhammad Aslam Naqvi has examined injured Muhammad Yasin on 21.07.2006 at 08:15 p.m. and found following injuries on his person.
No,1 A lacerated wound 2 cm x 1/2 x deep going with inverted margins on front of left shoulder upper left chest.
Injury was kept under observation and X-Ray advised for surgeon opinion.
No,2 A lacerated wound 11/2 x 11/2 cm x deep going with inverted margins on right upper abdomen. 6 cm below the right costal margin with distension of abdomen. Injury was kept under observation for X-ray and for surgeon opinion.
8. Dr. Ishtiaq Ali (PW-5) held autopsy on the dead body of deceased Muhammad Yasin on 01.08.2006 and observed six injuries including four stitched wounds:- The cause of death was due to Injury No,2 leading to septicemia and shock which was sufficient to cause death in ordinary course of nature. Injuries No. 1 & 2 were caused by fire-arm weapons while Injuries No,2 to 6 were surgical. The probable duration between injuries and death were 11 to 12 days, whereas between death and post- mortem examination it was 12 hours.
9. At the commencement of the trial, learned trial Court had framed a charge against the appellant and his co- accused Allah Ditta to which they pleaded not guilty and claimed to be tried.
10. The complainant examined three witnesses and the police witnesses, cited in the challan case, were examined as Court Witnesses (CW-1 to CW-10). The prosecution produced report of Chemical examiner (Ex.PH) & of Serologist (Ex.PJ) and FIR No,328/06 (Ex.PK). The appellant and his co-accused, in his statement recorded under Section 342, Cr.P.C., had denied and controverted all the allegations of fact leveled against them. They did not opt to make statements under Section 340(2), Cr.P.C. however , they produced three defence witnesses in their defence.
11. Learned trial Court, upon conclusion of the trial, had acquitted co-accused Allah Ditta and convicted and sentenced the appellant as stated above. Hence, this appeal.
12. Learned counsel for the appellant submits that the appellant is quite innocent and has falsely been implicated in this case; that the appellant along with his co-accused were found to be not involved in the alleged occurrence in three consecutive investigations up to the level of, SSP RIB Range Sheikhupura; that the crime report was got lodged after due deliberation and consultation with an inordinate delay of one day; that the appellant and his two real brothers were implicated in this case just to entangle accused's whole family in order to spread the net wide; that no weapon of offence was specified in the crime report and after 09-months, they assigned the role of holding pistol .30-bore in the private complaint; that the medical evidence is not inconsonance with the ocular account furnished by the prosecution; that the injury attributed to the appellant was though an entry wound but it had no exit or any pallet/bullet therein rather it was just a muscle deep injury , which shows that it was not a fire-arm injury , that both the witnesses of ocular account were chance witnesses, they belong to City Okara and they had no reason to be present at the venue of occurrence, at the relevant time; that the prosecution has failed to prove the charge against the appellant beyond shadow of reasonable doubt. At the end, learned counsel has made a request for the, acquittal of the appellant.
13. Conversely , learned District Public Prosecutor appearing for the State assisted by learned counsel for the complainant has argued that it was a broad daylight occurrence where the presence of eye-witnesses as well as identity of the culprits could not be doubted; that the deceased was taken to hospital by the complainant himself on the same day, which has further been fortified by the medico-legal certificate of the deceased showing the name of the complainant as associating the deceased; that the eye-witnesses had no occasion to implicate the appellant falsely while letting off the real culprits; that both the witnesses of ocular account remained consistent on material particulars inter-se coupled with the medical evidence; that though the appellant along with his companions was found innocent during investigation yet it was due to the biasness of the Investigating Officers; that the injury attributed to the appellant is mentioned in the medico-legal certificate and post-mortem examination was a fire-arm injury; that the prosecution has been able to prove the charge of murder against the appellant beyond shadow of reasonable doubt. They have prayed for dismissal of the appeal.
14. I have heard learned counsel for the appellant, learned District Public Prosecutor appearing for the State assisted by learned counsel for the complainant and perused the record with their able assistance.
15. This occurrence had allegedly taken place on 21.07.2006 at 06:00 p.m. but it was reported to the police on 22.07.2006 at 07:00 p.m. with an inordinate delay of 25-hours and nothing could be brought to meet with the said delay , which shows the real possibility that the time had been consumed for getting legal assistance in order to manage the eye-witnesses.
16. Muzammil Hussain (PW-3) and Zahid Hussain (PW-4), brother and first cousin of deceased Muhammad Yasin furnished the ocular account. They made unanimous statement before the trial Court that on 21.07.2006 at 06:00 p.m. they along with Muhammad Yasin lshtiaq and Haji Muhammad were coming back to their home after preparing land for maize crop when all of sudden Falak Sher armed with pistol, Tasaddaq alias Adnan (appellant) armed with pistol, Allah Ditta and Salman armed with clubs emerged there from "Jawwar" crop. Falak Sher raised Lalkara to kill Yasin, who tried to escape but Allah Ditta and Suleman Saeed came in his way whereupon Falak Sher made a fire shot with his pistol, which landed at the right side of the abdomen and the fire shot of Tasadaq Hussain hit at the left shoulder of Yasin, who fell down whereas the accused persons succeeded to flee away from the scene of occurrence with their respective weapons, they took care of Muhammad Yasin and shifted him to the hospital where he succumbed to the injuries after 10-days of the occurrence. Muhammad Akram S.I. (CW-6), Zahid Ramzan S.I. (CW-8) and Maqsood Hussain Inspector (CW-9), after thorough investigation, reached at the conclusion that no one except accused Falak Sher had participated in the occurrence and rest of the accused were found innocent. It is important to mention here that co-accused Falak Sher, who was attributed the role of making fatal fire shot at the deceased was arres ted later on and died in the judicial lockup. The appellant, from the day one, took the plea of alibi that he was running the business of pesticide, remained away from his house in connection with receiving the amount of pesticides. This plea of the appellant was further verified by the peoples of the vicinity to whom he had met at the relevant time. Different persons from the vicinity as well as from the appellant's work-place joined the investigation in this regard and out of them, three persons appeared as defence witnesses in order to verity the appellant's presence with them at the time of occurrence. Admittedly , ipsi-dixit of the police opinion is not binding upon the Court, however , if the said opinion is based on sound material and the evidence collected in support of the innocence of the accused is well founded then the same could be taken into consideration in support of the other pieces of evidence. The appellant was declared innocent during three consecutive investigations up to the inves tigation conducted under the supervision of SSP, RIB Sheikhupura on the sound reasoning that he was not present at the place of occurrence at the relevant time. Almost similar proposition has been discussed in case titled "Muhammad Sharif versus Muhammad Aslam and another" (2003 SCMR 528) as under: "Learned Judge in, Chambers of the High Court also took note of the fact that even Investigating Officer had declared the respondent as innocent, which was confirmed by D.S.P . Circle. Though, finding recorded by the police officials during investigation cannot be the sole basis for acquittal of the accused but in this case this has been taken into consideration as a circumstance in support of the findings independently arrived at, that the prosecution had failed to prove the case beyond reasonable shadow of doubt."
17. Having seen the police opinion regarding innocence of the appellant and others except Falak Sher, the complainant filed private complaint (Ex.PB) on 25.4.2007, after about 09-months of the occurrence with some variation. In the crime report ho specific weapon was alleged to have been carried by the appellant and his co- accused but in the private complaint, the accused persons were specifically alleged to have been armed with .30- bore pistols. It was further alleged that all the accused persons assaulted upon the deceased by inflicting kick and butt blows but in the private complaint the complainant omitted this part of the statement because the deceased had sustained no blunt injury .
18. Co-accused Falak Sher remained fugitive from law and ultimately , he was arrested and sent to the judicial lockup where he met with natural death after about two years.
19. Learned counsel for the appellant has forcefully argued that the witnesses were not accompanying the deceased at the time of occurrence because they, being teachers by profession, were not supposed to cultivate the land and it was the deceased only, who was dealing with the matters of cultivati on. Though there were summer vacations at the relevant days yet the presence of both the eye-witnesses along with the deceased and two others seems to be doubtful as they were five in number and it was difficult for the appellant and his co-accused to halt the complainant party mentioned in the crime report and if it was so, the accused persons should have also received injuries in retaliation. The presence of eye-witnesses along with the deceased at the venue of occurrence, in such a scenario, creates some doubt.
20. Learned counsel for the appellant has much emphasis that the injury attributed to the appellant was not a fire- arm injury rather it was a muscle deep wound caused by some hard object. The post-mortem examination report shows two fire-arm wounds on the person of the deceased at the front of left shoulder and on the right upper abdomen of the deceased. The injury at the abdomen i,e, Injury No,2 was subsequently found fatal, which led to septicemia and shock. Both these injuries were caused by fire-arm weapon and ante-mortem in nature. The duration between injuries and death was about 11 to 12 days whereas between death and post-mortem examination, it was about 12-hours. Durin g cross-examination Dr. Ishtiaq Ali (PW-5) deposed that "I did not find any pallet or bullet from the dead body of the deceased. I did not receive any X-ray report or operation notes of the deceased. I am not definite about the kind of weapon, whether injuries can be caused by one weapon or by two different weapons. Injury No, 1 & 2 are two different injuries.-- Injury No. 1 damaged the muscle of the shoulder while Injury No, 2 damaged the intestines of the abdominal cavity .
Injury No, 2 is sufficient to cause death along with sephicimia. -- This part of deposition of an independent witness coupled with the fact that the size of wound was having no exit, pallet or bullet inside therein, displays a different picture to that of the mode and manner ascribed by the prosecution rather it was not a fire-arm injury and result of some hard object other than the fire-arm weapon.
21. The motive behind this occurrence was that co-accused Falak Sher used to tease the women folk of the deceased's tenant family , the deceased forbade the said co-accused and there was exchange of hot words. The motive part of the occurrence is not direct ly linked with the appellant and the person against whom it was attributed, has met with natural death in the jail premises.
22. No crime weapon was recovered from the appellant during investigation perhaps for the reason that he was found to be not involved in this occurrence during consecutive investigations.
23. The appellant took a specific plea of alibi in his statement recorded under Section 342, Cr.P.C. that he was away at his work-place at the relevant time and in that regard he produced three witnesses in his defence namely , Muhammad Ali alias Ahmed Ali (DW-1), Habib Ullah (DW-2) and Bashir Ahmed (DW-3). They deposed in unison that on the fateful day between Asar and Maghrib prayer they remained in touch with the appellant, who came to them for receiving amount of pesticide and at about Maghrib prayer he received a telephonic message that his brother Falak Sher had caused fire-arm injuries to Muhammad Yasin. During cross-examination they remained consistent on the point of their association at the relevant time with the appellant.
24. Having looked into the entire evidence available on record, it is concluded that the prosecution has failed to prove the charge of murder against the appellant beyond shadow of reasonable doubt through cogent, reliable, unimpeachable and confidence inspiring evidence. There are many factors, which create doubt in the veracity of the eye-witnesses, primarily , the crime report was lodged with the delay of more than one day without plaus ible explanation; secondly , all the accused persons except one Falak Sher, were found to be not involved in three consecutive investigations and the injury attributed to the appellant 'Was neither grievous nor fatal nor contributory to death and thirdly , the size of injury i,e, 04 cm x 3 cm muscle deep having no exit wound, no pallet or bullet therein shows something mysterious qua the kind of weapon used for causing such injury . The presence of the eye-witnesses at the venue of occurrenc e being teacher by profession at the travelling of 25 to 30 minutes from their residence, is not free from doubt. The appellant's plea of alibi is supported with three defence witnesses and opinion of the Investigating Officers under the direct supervision of SSP, RIB Sheikhupura, seems to be more plausible and reasonable. If the prosecution evidence and the defence version are put in juxta position, the prosecution evidence stands nowhere. Nothing was recovered from the appellant during investigation and the motive had no link with the appellant in any capacity whatsoever . It was the duty of the prosecution to prove the charge against the appellant beyond reasonable shadow of doubt and any variation or doubt even slightest, always tilts the scale of justice in favour of the accused. Not to speak of a single doubt, the case in hand is replete with doubts.
25. The epitome of above discussion is that the appeal in hand is allowed, the conviction and sentence .of the appellant are set aside and he is acquitted of the charge ':y giving the benefit of doubt to him. Ile is on bail. His sureties are discharged from the liability .