Through this jail appeal under Section 410 Cr.P.C, appellants Sami Ullah and Mazhar Iqbal have challenged the vires of judgment dated 22.05.2017 passed by the learned Additional Sessions Judge, Piplan in case FIR No. 342 dated 31.10.2015, in respect of offences under Sections 302 & 34 PPC, registered at Police Station, Kundian whereby they were convicted and sentenced as under: Under Section 302(b) PPC Rigorous Imprisonment for life each and to pay Rs.1,00,000/- each as compensation under Section 544 Cr.P.C. to the legal heirs of deceased and in case of default, to further undergo simple imprisonment for six months each.
They were held entitled for the benefit of Section 382-B PPC.
2. Muhammad Lateef (PW-8) got registered this case on 31.10.2015 against unknown accused stating that his brother Muhammad Sharif (deceased) left the house for fishing at the Indus River but did not return and on the next day his dead body was found lying near the sewerage drain at the dry place under the river bank. The complainant made supplementary statement on 22.11.2015 implicating the appellants in this case whereupon, Muhammad Akram S.I. (PW-11) arrested the appellants on 15.01.2016 and during investigation appellant Sami Ullah led to the recovery of pistol (P-1) alongwith three live bullets (P-2/1-3) on 26.01.2016. Appellant Mazhar Iqbal led the police party in pursuance of his disclosure to the recovery of mobile (P-3) on the same day .
3. Dr. Muhammad Safdar Khan Kundi (PW-1) held autopsy on the dead body of Muhammad Sharif on 31.10.2015 at 02:00 p.m. and found following injury on his person.
No. 1 A fire-arm wound of entry 1 cm x 1 cm over back of top of the head, 1 cm left lateral to the midline and top of the head entering into the skull, clotted blood and brain matter coming out of the wound.
The cause of death was due to laceratio n of brain and meninges, occipital hematoma, facture of interior cranial fossa, leading to compression of the brain, caused cardiopulmonary arrest, which was sufficient to cause death in ordinary course of nature. Injury No. 1 was ante-mortem and was inflicted by fire-arm. The probable duration between injuries and death was soon after, whereas between death and post-mortem examination was about 12 to 18 hours.
4. At the commencement of the trial, learned trial Court had framed a charge against the appellants to which they pleaded not guilty and claimed to be tried.
5. The prosecution produced 12-prosecution witnesses besides the reports of Punjab Forensic Science Agency regarding blood-stained earth and crime empty & weapon of offence (Ex.PT and Ex.PU) and closed the prosecution evidence. The appellants in their statements recorded under Sectio n 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 , appellants produced certain documents (Mark-A and Mark-B) in their defence.
6. Learned trial Court, upon conclusion of the trial, had convicted and sentenced the appellants as stated above.
Hence, this appeal.
7. I have heard learned counsel for the appellants, learned District Public Prosecutor appearing for the State assisted by learned counsel for the complainant and perused the record with their able assistance.
8. Muhammad Latif (PW-7)/complainant, a brother of the deceased, Muhammad Siddique (PW-8) and Muhammad Ramzan (PW-10), the son and nephe w of, the complainant had deposed in unison regarding missing of Muhammad Sharif while stating that on 30.10.2015 at 07:30 p.m. Muhammad Sharif left the house for fishing towards Indus River but he did not return for the whole night. Feeling worried, they alongwith one Muhammad Bashir started search of Muhammad Sharif and when they reached near sewerage drain, found the dead body of Muhammad Sharif lying beneath the outer edge of Indus River having fire-arm injury at the back of head. The matter was reported to the police against unknown persons, who had murdered Muhammad Sharif for unknown reason. The testimony of these witnesses was just a narration regarding missing of the deceased and thereafter his dead body was found lying smeared with blood beneath the outer-edge of Indus River and nothing else. They neither raised finger towards any specific culprit nor shown suspicion against anybody . Muhammad Siddique and Muhammad Ramzan had accompanied the complainant in the process of searching the deceased. The complainant got recorded supplementary statement on 22.11.2015 and nominated the appellants being the real culprits but without disclosing the source of information from any corner by simply stating that he, of his own, had reached at the conclusion that the appellants were the real culprits. This statement has no base or foundation to connect the appellants with the murder in issue.
9. Muhammad Iqbal (PW-9) was a star witness of the episode deposing that on 22.11.2015 at 11:00 a.m. he alongwith one Atta Muhammad while sitting at the hotel of one Majeed Qasai situated at Main Bazar , Kundian heard the conversation of accused Mazhar and Sami Ullah regarding murder of Muhammad Sahrif that the police were arresting the friends of the deceased so they should quit Kundian and in case of their arrest, the police would come to know that they had murdered Muhammad Shard. In cross-examination, he admitted that he had the place of adobe at Dera Ismail Khan, which was situated at a distance of 60/65 kilometers away from Kundian, he did not give any specific purpose of visiting Kundian before the Investigating Officer and that he had friendly relations with the complainant. He was residing at a distance of 60/65 kilometers away from City Kundian and had no specific purpose or business to be present in City Kundian then how could his statement be taken as a gossip truth that the appellants were talking with each other regarding murder of the deceased at their hands and that too while sitting in an open, public and commercial place i.e. a hotel. He claimed that after hearing the conversation, he approached the complainant and disclosed the conversation to him but the complainant did not state even a single word in his supplementary statement and due to that very reason he had mentioned the name of the appellants. The only possible inference is that the evidence of Muhammad Iqbal and supplementary statement of the complainant were maneuvered and concocted subsequently in order to falsely implicate the appellants in this case. He was a chance witness of the conversation and he being fast friend of the complainant shown to be accompanied by Atta Muhammad PW, had neither made any attempt to apprehend the accused nor made a noise to .attract the people sitting in the hotel nor called the complainant or at least the police in order to apprehend the appellants. The unnatural conduct of a material witness runs counter to human conduct as envisaged under Article 129 of Qanoon- e-Shahadat Order , 1984 and the same, being sole statement, is straightaway discarded.
10. Atta. Muhammad, who was shown accompanying Mazhar Iqbal (PW-9) at the time of hearing the aforesaid conversation did not produce before the Court and the prosecution opted to withheld his evidence. He was the only material witness to corroborate the sole statement of Mazhar Iqbal and his non-pr oduction before the learned trial Court, being the best piece of evidence, does hit the provisions of Article 129(g) of Qanoon-e-Shahadat Order , 1984 inferring that "had he been produced before the learned trial Court, he would have not supported the prosecution version'.
11. Muhammad Alcram, SI (PW-11) had secured one crime empty of pistol 30-bore at the time of his first visit of the place of occurance on 31.10.2015 and sent the same to the office of Punjab Forensic Science Agency on 08.11.2015. The appellants were arrested in this case on 15.01.2015 and during investigation, appellant Sami Ullah led to the recovery of a pistol 30-bore (P-1) alongwith three live bullets (P-1/3) on 26.01.2016, which was transmitted to the aforesaid office on 30.02.2016. The report of the said office had been received with positive result, showing that the pistol recovered from appellant Sami Ullah was wedde d with the crime empty . I have observed that appellant Sami Ullah, in his statement recorded under Section 342 Cr.P.C, specifically replied to a question regarding the recovery of afores aid weapon of offence, that he was in police custody much prior to the date of his arrest as alleged by the prosecution. He further claimed there was no mention of crime empty in Column No. 23 of the inquest report (Ex.PO), which shows that the same was maneuvered and fabricated at some subsequent stage after making fire shot with the pistol provided by the complainant. Keeping in view the aforesaid facts and circumstances of the case, it smells something wrong in getting positive report of the Ballistic Expert.
Even otherwise, the sole positive report of Chemical Examiner without any other corroboration is not sufficient enough to maintain the conviction and sentence of the appellants. This being a corroborative piece of evidence, which by itself is insufficient to convict the appellant in absence of substantive piece of evidence.
Reference is invited to "IJaz Ahmed v. State (PLJ 1998 SC 510)". It was held in the case of "Asadullah v.
Muhammad Ali" (PLD 1971 SC 541)" that corroborative evidence is meant to test the veracity of ocular evidence.
Both corroborative and ocular testimony is to be read together and not in isolation. In the case of "Saifullah v. The State (1985 SCMR 410)", it was held that when there is no eye-w itness to be relied upon then there is nothing, which can be corroborated by the recovery ."
12. The recovery of cell phone "Q-mobile" (P-3) owned by the deceased was shown against appellant Mazhar Iqbal on 26.01.2016. Muhammad Ameer , a brother of the complainant as well as the deceased made statement before the investigating officer on 02.11.2015 that the cell phone of the deceased had been stolen 3/4 days prior to the occurrence. The EIMI number of the stolen cell phone was mentioned as 351864060106210 whereas the EIMI number of the recovered cell phone was 351864060106212, which clearly shows that it was not the same number as alleged by the prosecution. Even otherwise, the cell phone, which had been stolen 3/4 days prior to the occurrence, has no relevancy/with the murder in issue.
13. The currency notes of Rs.2630/-, Identity Card, 5 SIMs of mobile phone, Churri , Battery , Q-mobile and a Chit on which certain phone numbers were writte n alongwith two hunted fishes were recovered at the time of inspection of the dead body of the deceased. The aforesaid articles were taken from the pocket of the deceased whereas the complainant and Muhammad Siddique (PW-8) had deposed that the same were lying around the dead body of deceased at some distance, which creates doubt with regard to the veracity of the said witnesses. The recovery of aforesaid articles has no relevancy to connect the appellants with the murder in issue.
14. Dr. Safdar Khan (PW-1) held autopsy on the dead body of deceased Muhammad Sharif on 31.10.2015 at 02:00 p.m. and observed a firearm wound of entry on back of top of the head; entering into the skull, clotted blood and brain matter coming out of the wound. There was a hole in the skull, meninges were ruptured and fracture of right side of anterior cranial fossa. The injury received by the deceased was upwards to downwards without blackening and burning. The cause of death was due to firearm injury at the head, which was anti-mortem and sufficient to cause death in ordinary course of nature. The probable duration between injury and death was instantaneous whereas between death and postmortem examination it was 12 to 18 hours. During cross-examination, he admitted that the dead body of deceased was received in the hospital at 12:10 P.M. on 31.10.2015 whereas the police documents were received at 01:30 p.m. on the same day and the delay caused due to the non-availability of the police papers. This shows the real possibility that the time had been consumed by the local police and the complainant party in order to procure and plant the witnesses for cooking up a false story for the prosecution. A reference may also be made to cases titled "Muhammad Ilyas versus Muhammad Abid alias Billa and others "
(2014 SCMR 1698 ), "Faqeer Muhammad versus, Shahbaz Ali and others " (2016 SCMR 1441 ) and "Muhammad Ilyas versus Muhammad Abid alias Billa and others" (2017 SCMR 54) wherein it has been held as under: "Post-mortem Examination of the deadbody of Muhammad Shahbaz deceased had been conducted after nine hours of the incident which again was a factor pointing towards a possibility that time had been consumed by the local police and the complainant party in procuring and planting eye-witnesses and cooking up a story for the prosecution."
15. From this discussion, I have reached at the conclusion that the prosecution has failed to bring home guilt of the appellants beyond shadow of reasonable doubt. The testimony of the complainant and Muhammad Siddiqe (PW-8) was nothing beyond putting the law in motion. The only piece of evidence available with the prosecution was the sole testimony of Muhammad Iqbal (PW-9), who alongwith one Atta Muhammad had heard the conversation of both the appellants while sitting at the hotel regarding the murder of the deceased. He was resident of Dera Ismaeel Khan 60/65 kilometers away from the hotel. He had no business whatsoever to be present in City Kundian on that very day. The unnatural conduct of the said witness alongwith his companion for neither trying to apprehend the appellants nor giving information to the police or the complainant, renders his testimony being highly doubtful.
The prosecution has preferred to withheld the other material witness i.e. Atta Muhammad being unnecessary', who was accompanying Muhammad Iqbal at the time of hearing conversation and, thus, the statement of Muhammad Iqbal remained uncorroborated. The recovery of weapon of offence i.e. pistol from appellant Sami Ullah coupled with the positive P report of the Ballistic Expert appears to have been maneuvered and fabricated in order to create evidence against the appellant, which otherwise was not sufficient to get corroboration from any other reliable piece of evidence. The prosecution was not equipped with any reliable and admissible evidence to connect the appellants with the murder in issue. Not to speak of a reasonable doubt, the case in hand is replete with doubts and the benefit of doubt, even slightest, tilts the scale of justice in favour of the accused.
16. The epitome of above discussion is that the appeal in hand is allowed , the conviction and sentence of the appellants are set aside and they are acquitted of the charge by giving the benefit of doubt to them. They are directed to be released from jail forthwith, if not required to be detained in connection with any other criminal case.