This appeal under Section 410, Cr.P.C. is directed against the judgment dated 22.09.2017, passed by learned Additional Sessions Judge, Jand (Attock) in case FIR No. 138 dated 15.08.2015 , registered under Section 302, PPC, at Police Station Jand, District Attock, whereby Rehmat Ullah appellant was convicted under Section 302(b), PPC and sentenced to imprisonment for life with the direction to pay compensation under Section 544-A, Cr.P.C. to the tune of Rs. 200,000/-to the legal heirs of Akseer Begum deceased in default thereof to further undergo simple imprisonment for 06-months. However , benefit of Section 382-B, Cr .P.C. was extended in favour of the appellant.
2. The prosecution story set forth in FIR (Ex.PH/2) chalked out on the complaint (Ex.PH) of Abdul Hameed complainant is that he was a labourer and was resident of Nai Abadi Kundrala. On 15.08.2015 at about 06:40 p.m. he was proceeding towards his house on his motorcycle, whereas Rehmat Ullah (appellant), who was on separate motorcycle and was ahead of complaina nt at some distance, was also going towards Nai Abadi. Complainant's mother Akseer Begum was also proceeding on foot towards her house on the same passage. As soon as she reached near the fields of Mansab Khan, she was taken by surprise by Rehmat Ullah, who pulled out pistol from his fold and within the view of the complainant, made a fire shot targeting chest of Akseer Begum, who fell on the ground after sustaining fire-arm injury . Complainant's father Abdul Latif and uncle Haji Muhammad Sharif, who were weeding the peanuts crop in the nearby fields also attracted to the spot while witnessing the occurrence.
Rehmat Ullah, after boarding on his motorcycle, went towards Nai Abadi Kundarala while brandishing pistol. Akseer Begum succumbed to the injuries at the spot. Motive behind the occurrence was that Rehmat Ullah wanted the hand of Kalsoom Bibi, but her mother Akseer Begum had not agreed to the proposal and due to this grudge; he committed murder of Akseer Begum. Hence, the crime report.
3. After completion of investigation, report under Section 173, Cr.P.C. was submitted before the Court, wherein, after observing legal formalities as provided in the Criminal Procedure Code, 1898, learned trial Court framed charge against the appellant, to which he pleaded not guilty and claimed trial.
4. The prosecution, in order to prove its case against the appellant, examined eleven witnesses before the trial Court. Ocular account has been furnished by Abdul Hameed complainant (PW9) and Abdul Latif (PW10). Nazakat Ali 1723/C (PW5) testified about the recoveries effected from the appellant and also identified the handwriting and signatures of Nayyar Iqbal S.I./I.O. (since dead) on different police proceedings, whereas Sajjad Ahmad S.I. (PW8), being Investigating Officer of the case, testified about various steps taken by him during the course of investigation.
Medical evidence has been furnished by Dr. Neelam Arshad (PW1), who, on 15.08.2015, conducted autopsy on the dead body of Akseer Begum deceased vide post-mortem report (Ex.P A) and noted the following injuries:
1. An inversion wound with blackening and tattooing, positive 06cm away and lateral to left nipple measuring 01 x 01 cm.
2. Eversion wound with no blackening 10cm below from left nipple measuring 02 x 1.5cm.
3. An inversion wound of 01 x 01 cm, 03 cm below from Injury No. 2.
4. An eversion wound of 02 x 01.05 cm with no blackening or tattooing just above and lateral to right iliac crest.
According to the doctor , death had occurred due to internal and external severe bleeding and injury to major vessel. She further opined that duration between the injury and death was immediate and between death and post- mortem was 1 to 2 hours.
The remaining prosecution witnesses, more or less, are formal in nature. After tendering the reports (Ex.PP and Ex.PQ) of the Punjab Forensic Science Agency , the prosecution closed its evidence.
5. Rehmat Ullah appellant, in his statement under Section 342, Cr.P.C. controverted the allegations leveled by the prosecution and professed his innocence. He did not opt to make statement on oath as provided under Section 340(2), Cr.P.C. and did not produce any evidence in his defence. While answering to the question as to "why this case has been registered against you and why the PWs have deposed against you?" the appellant stated as under: "In the days of occurrence, I was posted at Jarar Camp Rawalpindi. Complainant of the case Abdul Hameed had borrowed an amount of Rs. 2,00,000/- from me and he did not repay the same amount on my demand and on finding the occasion, he had falsely involved me in this case. It was talk of the town that deceased was murdered by unknown persons in the night time and due to above said grudge, complainant involved me in this false case while setting a false and concocted motive against me. I have no motive to commit the murder of the deceased. All the PWs are closely related to each other , so they opted to become false witness against me in this case."
6. Upon culmination of trial, learned trial Court found the case against the appellant to have been proved beyond any reasonable doubt, thus, convicted and sentenced him as mentioned and detailed in Paragraph No. 1 above, hence, the instant criminal appeal before this Court.
7. Learned counsel for the appellant submitted that the appellant has been falsely involved in this case due to erratic guess work and malicious intention of the complainant; that the prosecution did not produce any connecting evidence against the appellant during the course of the trial, despite that he was pronounced guilty and handed down the sentence of life imprisonment; that factual and legal aspects of the case have not been appreciated in its true perspective which resulted in grave miscarriage of justice; that the occurrence had taken place at night, therefore, the identity of the assailant was highly doubtful; that overwriting was deliberately made in complaint (Ex.PH) and even the doctor has intentionally withheld the actual time on which she conducted autopsy on the dead body of the deceased in order to show that the occurrence had taken place in daylight; that as per prosecution's own case, the star witness of the prosecution namely Abdul Hamee d was by chance present at the spot at the time of occurrence and similarly the other witnesses were also chance witnesses who could not prove their presence at the spot at relevant time and even the medical evidence has badly shattered their presence as well as the factum of seeing the occurre nce with their own eyes; that the recov eries have been planted on the appellant just to strengthen the prosecutio n case and are otherwise inconsequentia l; that the prosecution has failed to substantiate its accusation in respect of motive part of its case. Learned counse l strenuously contended that the prosecution has miserably failed to prove its case against the appellant beyond any shadow of doubt and the evidence so produced is not confidence-inspiring, so the appellant deserves acquittal.
8. On the contrary , learned Deputy District Public Prosecutor and learned counsel for the complainant have opposed the submissions made by learned counsel for the appellant and contended that the matter was reported to the police without any element of deliberations and consultations; that it is a case of promptly lodged FIR, wherein the appellant is nominated as a Sole perpetrator of the offence with specific role of causing fire-arm injuries to Akseer Begum deceased and the role assigned to the appellant by the eye-witnesses is borne out from medical history of the deceased; that minor discrepancies in the prosecution case canno t be made basis for reversal of well-reasoned judgment of learned trial Court; that the ocular account is fully corroborated by the medical evidence and the recovery of crime weapon has further strengthened the prosecution case against the appellant; that mere weakness of motive is no ground to grant acquittal to the appellant. Learned Law Officer maintained that sufficient incriminating evidence has been brought on the file in order to bring home the guilt of the appellant, thus, his conviction and sentence may be upheld and his appeal may be dismissed.
9. I have heard the learned counsel for the parties, have given anxious consideration to their arguments and have also scanned the record with their able assistance.
10. In this tragic incident, Akseer Begum, mother of Abdul Hameed complainant (PW-9) and better half of Abdul Latif (PW-10), was gunned down and the accusation was leveled against Rehmat Ullah appellant that he had caused unnatural death of Akseer Begum by firing. The perusal of record would amply demonstrate that conviction of the appellant under Section 302(b), PPC and award of sentence of life imprisonment to him by the learned trial Court was largely influenced by the facts of promptitude in lodging FIR (Ex.PH/2), reliable ocular account furnished by Abdul Hameed complainant (PW9) and Abdul Latif (PW10), no chance of mistaken identity as both the parties were close relatives, minor contradictions not having any bearing on case of the prosecution, medical evidence in line with ocular account and recoveries effected from the appellant during investigation. I would propose to discuss these pieces of evidence in seriatim.
11. To begin with the so-called promptly lodged FIR (Ex.PH/2), which laid foundation of the case and is obviously treated as corner stone of the prosecution case to establish guilt against the culprit involved in the crime, I have observed that in the instant case, the incident had allegedly taken place at about 06:40 p.m. on 15.08.2015 and on the same day at 08:00 p.m. Abdul Hame ed complainant (PW9) reported the incident to the police by recording complaint (Ex.PH) before Nayyar Iqbal S.I. on the basis of which FIR (Ex.PH/2) was chalked out at 08:45 p.m. whereas the distance between the police station and the place of occurrence was eighteen kilometers. Though according to the prosecution version, the matter was reported to the police within one hour and twenty minutes but there is clear overwriting of the time of occurrence mentioned in complaint (Ex.PH) which creates doubt that the occurrence had not taken place at 06:40 p.m. To create further doubt regarding the actual time of occurrence, Dr. Neelam Arshad (PW1), who conducted autopsy on the dead body of deceased, has not mentioned time of post- mortem examination in post-mortem report (Ex.P A) as well as in her statement before learned trial Court, however , opined that probable duration between the death and I post-mortem examination was 1 to 2 hours. Since the actual time of conducting autopsy was deliberately withheld by the doctor , therefore, the actual time of occurrence cannot be determined and as such inference can be drawn that the occurrence had taken place in darkness of night, but the time was changed in complaint (Ex.PH) which is visible to naked eye, just to prove that the occurrence had taken place in natural daylight. From the above facts of the case, it also emerg es that an ante-time F.I.R was lodged after preliminary investigation only to show promptitude in reporting the incident to the police. Though the prosecution case cannot be discarded on this score alone but such an act on the part of the prosecution cast doubt in the mind of Court regarding the registr ation of case and provides a valid reaso n to conduct a close scrutiny of prosecution case with a view to avoid false implication of accused named for the commission of of fence.
12. Learned counsel for the complainan t has strenuously contended that the defence has miserably failed to shatter the steadfast and confidence inspiring ocular account furnished by Abdul Hameed complainant (PW9) and Abdul Latif (PW10) and that is in complete harmony with the medical evidence. No doubt both these witnesses while appearing in the witness box pointed accusing fingers towards the appellant that he had caused fire-arm injuries on the chest of the deceased, but the medical evidence has seriously .contradicted the ocular testimony of Abdul Hameed complainant (PW9) and Abdul Latif (PW10) as well as the site plan (Ex.PB). According to the so- called eye-witnesses, the appellant had made a single fire shot which landed on the chest of the deceased, but according to her post-mortem report (Ex.PA), the doctor had observed two entry and two exit wounds on the person of the deceased. It is worthwhile noticeable that Abdul Hameed complainant (PW9) and Abdul Latif (PW10) have not advanced any explanation in regard to the second entry wound sustained by the deceased during the occurrence. Furthermore, according to the prosecution's version as contemplated in the statements of Abdul Hameed complainant (PW9) and Abdul Latif (PW10), the appellant and the deceased both were in standing position and facing each other at the time when she was targeted by him, but according to pictorial diagram, the dimension of injuries is from upside to downward, which shows that the deceased was targeted from a higher pedestal of at least her shoulder height. Besides, the medical evidence has also contradicted the ocular testimony of Abdul Hameed complainant (PW9) and Abdul Latif (PW10) in regard to the time of death of the deceased as according to them, the deceased breathed her last at the spot due to which she was not shifted by them to the hospital, but according to the doctor (PW1), when she was called by the police, the deceased was in injured condition, meaning thereby , the deceased expired in the hospital and not at the crime scene. The above conflict between ocular and medical evidence cannot be resolved in favour of the prosecution and has proved that the alleged eye-witnesses had not seen the occurrence with their own eyes and were subsequently introduced in order to create direct evidence in this case. This aspect of the case has caused serious damage to the prosecution case against the appellant and said aspect is sufficient to extend benefit of doubt in his favour . Reliance is placed on the esteemed judgment of the Hon'ble Supre me Court of Pakistan reported as "Muhammad Ishaque vs. The State"
(2007 SCMR 108 ).
Apart from the above, it is an admitted position of the case that both the above said witnesses were closely related to Akseer Begum deceased inasmuch as PW9 was her real son and PW10 was her husband Abdul Hameed complainant (PW9) had claimed to have witnessed the occurrence when he was going to his house, whereas Abdul Latif (PW10) was allegedly weeding in a nearby peanut field at the relevant time. It is, therefore, quite clear that they were present at the spot by chanc e, but they remained failed to establish any plausible reason for their availability near the place of occurrence at the relevant time, which aspect of the case prompts this Court not to place any reliance on them. Guidance in this respect can be sought from the cases of "Arshad Khan.vs. The State" (2017 SCMR 564) and "Nadeem (a), Nanha (a), Billa Sher vs. The State" (2010 SCMR 949), wherein the Apex Court, while discussing the evidentiary value .of the statements of chance witnesses, has observed as below: "The complainant PW4 and Muhammad Afzaal PW5 are chance witnesses as they should not normally be present at the place of occurrence and it is difficult to rely upon their statements being chance and highly interested witnesses."
Keeping in view the afore-stated circumstances, this Court is of the view that the prosecution version with regard to ocular account seems to be tainted, not inspiring confidence and result of due deliberations and consultations, hence the same cannot be given any legal credence.
13. As far as the argument that the motorcycle (P5) and the weapon of offence i.e. pistol (P6) used by the appellant during the incident were recovered from him and further the pistol (P6) had also matched with the empty casing collected by the Investigating Officer durin g spot inspection, is concerned, I have noted that pistol .30 bore (P6) is shown to have been recovered from Rehmat Ullah appellant on 02.09.2015 vide seizer memo. (Ex.PE) which is exactly the same day when the crime empty , allegedly collected from-the place of occurrence, was sent to the Punjab Forensic Science Agency and as such the positive report (Ex.PP) has lost its legal worth. Furthermore, it does not appeal to mind that the accused after committing the occurrence would keep the weapon of offence in his house with such care so that the same could later on be recovered and used against him. Thus the recovery of weapon of offence allegedly effected at the instance of the appellant is of no help to the prosecution and has become inconsequential.
Adverting to the recovery of motorcycle (P5), admittedly no particulars of the motorcycle, on which the appellant allegedly came to the venue of occurrence, have been mentioned in the crime report (Ex.PH/2) and as such recovery of motorcycle (P5) from the appellant is also of no help to the prosecution case.
14. Now the only incriminating evidence left with the prosecution against the appellant is in the shape of motive, according to which the appellant demanded the hand of Kalsoom Bibi, sister of Abdul Hameed complainant (PW9) as well as daughter of Abdul Latif (PW10) and Akseer Begum deceased, but allegedly the deceased refused to accept the said proposal of the appellant. In this regard, the defence has exhibited in evidence the nikahnama of said Kalsoom Bibi as Ex.DA, according to which, her marriage had already been solemnized on 15.11.2014 i.e. nine months prior to the occurrence, so in this situation, learned trial Court was quite justified in discarding and disbelieving the motive part of the prosecution's case.
15. From the above mentioned facts and circumstances, the prosecution has absolutely failed to bring on record any convincing material to establish that the appellant had taken part in the commission of the occurrence. It is well established principle of law that to extend benefit of doubt, it is not necessary that there should be so many circumstances, if there is single circumst ance creating ' reasonable doubt regardi ng the prosecution case, that is sufficient to give benefit of the same to the accused, whereas the instant case to the extent of the appellant as discussed above is replete with circumstances which have created serious doubts about the involvement in the case. Reliance is placed on the case of " Muhammad Akram vs. The State" (2009 SCMR 230 ).
16. For the foregoing reasons, Criminal Appeal No. 927 of 2017 filed by the appe llant is accepted ; his conviction and sentence are set aside and he is hereby acquitted of the charge. He is in jail, be released forthwith if not required in any other case.