Through this jail appeal under Section 410, Cr.P.C., appellant Muhammad Arslan alias Zceshan Shani Mohli has challenged the vices of judgment dated 19.10.2015 passed by the learned Session s Judge/Special Judge juvenile Court, Sargodha in case FIR No. 303 dated 09.08.2014 in respect of offences under Sections 302 & 34, PPC registered at Police Station, Sahiwal, District Sargodha.
Under Section 302(b) of Pakistan Penal Code.
Imprisonment for life as Tazir for committing murder of Danial and to pay compensation of Rs. 1,00,0001- (one lac) to the legal heirs of each deceased under Section 544-A, Cr.P.C. and in default thereof to further undergo simple imprisonment for six months on each count.
He was extended the benefit of Section 382-B, Cr .P.C.
2. The prosecution story unfolded in the crime report (Ex.PC) registered on the complaint of Muhammad Afzal is that in the night between 8/9.08.2014 he alongwith his son Danial alias Dani (deceased), Muhammad Amir and Ghulam Hussain had gone to the house of Sammar Abbas Joggi, in the area of Mohalla Sadiq Abad, Sahiwal on account of some domestic piece of work. On coming back when they reached near the agricultural land of one Ghulam Habib Awan, at about 12/12:15 mid-night, they were having torches with them, in the meanwhile, accused ArsIan alias Zeeshan Shani armed with pistol .30-bore and Aqeel Abbas alias Akash Mazhar emerged there. Danial was little ahead of them. Aqeel Abbas made an alarm to be brave and be taught a lesson upon which Danial turned back towards them whereupon, in their view, Arslan alias Zeshand Shani made a fire shot, with his pistol, which hit at the back head of Danial, who fell down and succumbed to the injuries at the spot. They tried to intervene but the accused threatened them of dire consequences and fled away . They attended Danial, who had succumbed to the injuries at the spot.
The motive behind this occurrence was that 4/5 days earlier , a quarrel had taken place between the deceased and accused Zeeshan alias Shani Mohli etc.'
3. Nasir Hussain Shah, SI (PW-11) visited the place of occurrence on the same day i.e. 09.08.2014 and took all the necessary steps during initial investigation. He arrested the appellant alongwith his co-accused on 26.08.2014, got recovered pistol .30-bore alongwith three live bullets on pointing out by the appellant and after completion of investigation, he got prepared report under Section 173, Cr .P.C.
4. Dr. Nasim Abbas, (PW8) held autopsy of dead body of deceased Danial and confirmed his unnatural death with the duration of injuries and death as 20 to 30 minutes whereas between death and postmortem examination 2 to 4 hours.
5. At the commencement of trial, the prosecution examined 11-witnesses besides the report of Chemical Examiner regarding blood stained earth (Ex.PM) and report of Punjab Forensic Science Agency as Ex.PM. The appellant, in his statement, recorded under . Section 342, Cr.P.C., denied and controverted all the allegations of fact leveled against him, he neither opted to make statements under Section 340(2), Cr.P.C. on oath, nor produced any evidence in his defence.
6. Learned trial Court, upon conclusion of the trial, convicted and sentenced the appellant, as stated above. Hence, this criminal appeal.
7. Learned counsel for the appellant submits that the prosecution has failed to bring home guilt of the appellant beyond shadow of a reasonable doubt; that the appellant is quite innocent and he had nothing to do with the alleged occurrence; that it was a blind murder, which had taken place in a pitched dark-night in an open field where the presence of the claimed eye-witnesses in the company of the deceased is unbelievable; that admittedly the torches were not taken into possession during investigation, which speaks volume with regard to the availability of source of light at the spot; that no specific purpose was given by the claimed eye-witnesses to visit the house of Sammar Abbas in Mohalla Sadiqabad and their return on foot in the darkness of night; that though certain suggestions were denied yet in fact the deceased was habitual sodomized and he had a bad eye on accused Aqeel Abbas alias Akash Mazhar (since acquitted); that the recovery of pistol against the appellant remained inconsequential; that motive behind the occurrence was petty one, which could not become reason for this unfortunate incident. Lastly , he has prayed for acquittal of the appellant.
8. Conversely , learned Additional Prosecutor General assisted by the learned counsel for the complainant, has vehemently contended that it was a promptitude FIR containing the name of the appellant with the specific role of making fire shot at the head of the deceased; that both the witnesses of ocular account were quite natural and consistent inter-se coupled with medical evidence; that the eye-witnesses had shown plausible reason of their visit to the house of Sammar Abbas; that there was no reason for the complainant to falsely implicate the appellant in this case while letting off the real culprit of his son; that the motive as mentioned in the crime report was the only reason behind this murder; that the appellant got recovered weapon of offence from his residential house, which was found in working order . Lastly , they have prayed for dismissal of the appeal.
9. I have heard learned counsels for the parties and perused the record with their able assistance.
10. Muhammad Afzal (PW-9)/complainan t, father and Amir Raza (PW-10), a real brother of deceased Danial alias Dani had furnished the ocular account. They deposed that they alongwith deceased Danial alias Dani and one Ghulam Husnain had gone to the house of Sammar Abbas Joggi, Mohalla Sadiq Abad, Sahiwal in connection with some domestic piece of work and on returning when they were on way to the house at about 12:00/15 midnight near the agricultural land of one Ghulam Habib Awan, the appellant while armed with pistol .30-bore and co- accused Aqeel Abbas emerged. They identified them in the light of their torches. In their view, accused Aqeel Abbas made an alarm upon which the deceased Danial, who was a little head from them turned back but the appellant made a fire shot with his pistol, which hit at the head of the deceased, who fell down. They tried to intervene but the accused threatened them of dire consequences and fled away . They took care of deceased Danial but he had succumbed to the injuries at the spot. The police reached at the place of occurrence and they made their statements. They were cross- examined by the defence and certain facts, which remained un-attended, have disturbed the Court. Both the witnesses of ocular account had not explained any reason/purpose for their visit to the house of Sammar Abbas Joggi in the pitched dark night. If they had actually gone to the house of Sammar Abbas in the midnight, there must have some emergency but nothing could be brought on record in that regard.
The prosecution has to stand on its own legs and in particular to establish the presence of the eye-witnesses at the venue of occurrence at the relevant time. The claimed eye-witnesses were under obligation to explain the reasons of their visit at the house of Sammar Abbas and it was Sammar Abbas being the best witness to explain that why the claimed eye-witnesses had visited his-house in the fateful night but neither he himself appeared nor the prosecution made any attempt to produce him in support of their stance. In the Present modern era, there are various means to travel from one place to the other but the case of the prosecution is that the complainant alongwith four others went to the house of Sammar Abbas at Mohalla Sadiq Abad by foot and when they Were returning in a pitched- dark night, there was no occasion for the deceased to go ahead of the witnesses just to invite trouble for himself. The natural conduct of the claimed eye-witnesses, having close relationship with the deceased, was that they should have made effort to intervene and scare the appellant and his companion away when the appellant had made fire shot at the deceased. It is the prosecution's own case that one of the accused made alarm, accomplished their design and succeeded to flee away and thereafter they intervened. It is not acceptable to a man of common prudence that a real father and brother of the deceased remained present there as silent spectators and intervened when the accused had already left the place. The conduct of the claimed eye- witnesses was against human psyche and as such the only inference is that none of the claimed eye-witnesses was present at the venue of occurrence at the relevant time.
11. Another factor relevant to the discussion was that admittedly it was a pitched dark night occurrence and the place of occurrence was not electrified. The claim of the prosecution is that the eye-witnesses had torches in their hands at the time of occurrence but none of these torches was taken into posses sion during investigation, which makes the claim of identity of the assaila nts highly doubtful. It appears that this fact was maneuvered and added subsequently just to establish the identity of the accused. Reliance is placed on case reported as Sardar Bibi and another vs. Munir Ahmad and others (2017 SCMR 344 ) wherein it has been held as under: "According to the prosecution, the" occurrence took place at 2:00 a.m. in odd hours of the night. Although prosecution alleged that sufficient light of bulbs was available there but during investigation, no such bulbs (source of light) were taken into possession by the I.O. In that eventuality , the identification of the assailants became doubtful especially when Mohmand complainant, PW-11 and Muhammad Yar PW12 saw the occurrence from a distance of more than 100 feet."
12. The appellant was alleged to have caused fire arm injury at the head of the deceased. At the time of post mortem examination of the dead body of the deceased, the fire was found to have entry from the back of the head.
The complainant, in order to bring the case at par with medical evidence, made material improvement in his deposition before the learned trial Court deposing that on raising Lalkara by co-accused Aqeel Abbas, deceased Danial turned towards them and then the fire hit the deceased's head. This specific portion of his statement to the extent of taking turn by the deceased towards the claimed eye-witnesses was duly confronted with the previous statement (Ex.PH) of the complainant. The complainant claimed that the accused made fire shots upon the deceased from a distance of 4/5 feet but the scaled site plan (Ex.PB) shows the distance between the deceased and the assailants as three feet. If the said distance is taken to be true even then there must be blackening/burning around the wounds sustained by the deceased but both the injuries (entry and exit) had no blackening, burning or tattooing, which means that the deceased had sustained fire arm injury from far distance than the one claimed by the witnesses of ocular account in the site plan, which was prepared on their pointation. This fact alone is sufficient to discard the presence of the claimed eye-witnesses at the place of occurrence at the relevant time.
13. Dr. Nasim Abbas Malik (PW-8) held autopsy on the dead body of deceased Danial on 09.08.2014 at 04:00 a.m. and observed one fire arm entry wound on the back of head alongwith an exit wound from front of the neck of the deceased, which shattered the left hemisphere of brain and rupture of the membranes and the .cause of death was the said fire arm injury leading to brain damage, shock and death. The probable duration between injuries and death was within twenty to thirty minutes whereas'between the death and post mortem examination two to four hours. Though the medical evidence confirms the unnatural death of the deceased yet in absence of confidence inspiring ocular account, it alone is not suf ficient to raise an accusing finger towards any specific culprit.
14. The motive behind the occurrence was a quarrel between the deceased and co-accused Arslan alias Zeshan Shani a few days prior to the occurrence but no specific date, time, place, nature, mode and manner of the quarrel was brought on record by the prosecution. None of the claimed eye-witnesses had ever claimed to have seen the earlier incident of quarrel and even it was neither reported to the police nor any Panchayat was convened to settle the dispute; In the absence of any independent source of corroboration, the motive being words of mouth, remained unproved. What happened just before the occurrence is a shrouded mystery .
15. The defence put suggestion to the witnesses of ocular account during cross-examination that the deceased had bad eye and illicit relations with co-accused Aqeel Abbas and on that very night the deceased alongwith Mati-ur- Rehman took Aqeel Abbas in the field and wanted to get the benefit of darkness of night, which though had denied, yet to some extent it reflects the intention of the deceased. Neither any evidence in this regard was produced by the defence during trial nor co-accused Aqeel Abbas took such plea in his statement recorded under Section 342, Cr.P.C. but it smells out, in the circumstances, that the suggestion of the defence seems to be more probable and closer to the reality .
16. The recovery of pistol .30-bore (P-4) on 31.08.2014 was shown against the appellant, which was sent to the office of Punjab Forensic Science Agency and report from the said office (Ex.PN) was received with positive result to the extent that it was in operating condition with safety features functioning properly . Since no crime empty was found and secured from the place of occurrence, therefore, in absence of matching report, it cannot be said with any degree of certainty that the aforementioned recovered weapon was used during the occurrence.
17. From the evidence pro and contra, I have reached at the conclusion that the prosecution has failed to establish the charge of murder against the appellant beyond shadow of a reasonable doubt. Both the witnesses of ocular account were chance witnesses and they could not establish their presence at the venue of occurrence at odd hours of night in the company of the deceased. The unnatural conduct of the claimed eye-witnesses by keeping themselves away only due to the raising of alarm by the accused, is hardly expectable from a real father and brother before whom their nearer and dear had been done to death by the accused. The eye-witnesses explained and claimed to have visited the house of Sammar Abbas prior to the occurrence but they did not give any specific emergency or purpose to visit his house at odd hours of the night and even the prosecution withheld the best piece of evidence of Samar Abbas to establish link of the claimed eye-witnesses to visit his house. Admittedly , it was a pitched dark night and no source of light except torches were mentioned by the prosecution witnesses but no torch light was taken into possession during investigation, which missed the link of identity of the appellants at the spot.
Even otherwise, the identification of the accused in the torch light, not secured during investigation, has not been believed by the Apex Court in .a number of cases. The motive behind this occurrence was nothing but the words of mouth, which remained uncorroborated from any other independent source of evidence and even no date, time place, mode and manner of the previous incident and name of the witness was brought on record. The recovery of the pistol at the instance of the appellant, in absence of matching report with the empty , remained inconsequential as no crime empty was secured from the place of occurrence. The medical eviden ce alone is not sufficient to raise accusing finger towards any specific culprit. The only irresistible conclusion is that the prosecution could not produce cogent, convincing and confidence inspiring evidence rather it remained fail to prove the charge against the appellant beyond shadow of reasonable doubt and the benefit of doubt, even slightest, always favours the accused as a matter of right and not grace. Not to speak of a single doubt, the case in hand is replete with doubts.
18. 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 by extending the benefit of doubt to him. He is directed-to be released from jail forthwith, if not required to be detained in connection with any other criminal case.