Through this criminal appeal under Section 410, Cr.P.C.. appellant Zulfiqar Ali has challenged the vires of judgment dated 24.08.2008 passed by a learned Additional Sessions Judge at Chunian in case FIR No 352, dated 24.08.2008 in respect of offences under Sections 302/34, PPC registered at Polic e Station Changa-Manga, Tehsil Chunian, District Kasur whereby he was convicted and sentenced as under .
"Under Section 302(b) of Pakistan Penal Code.
Imprisonment for life and to pay the comp ensation of Rs. 2,00,000/- to the legal heirs of 'deceased Shafique alias Bhola under Section 544-A, Cr .P.C. and in default thereof to further undergo simple imprisonment for six months.
The appellant was extended the benefit of Section 382-B, Cr .P.C.
2. The prosecution story unfolded in the crime report (Ex.PD registered on the complaint of Munawar Hussain (PW- 4) is that on 24.08.2008 at about 03:30 p.m. his brother Muhammad Shafique left the house on motorcycle for his landed property and when reached at Chowk Fazal Din, Zulfiqar Ali armed with pistol 30-bore (appellant) alongwith Shaukat Ali, Abdul Razzaq (both armed with clubs) and Zohaib Iqbal armed with rifle emerged there. Zohaib raised a lalkara to teach a lesson to Shafique for quarreling with him two days earlier whereupon all the accused persons infuriated and Zulfiqar made a fire shot with his pistol, which hit at the, left thigh of Muhammad Shafique' through and through. The remaining accused gave beating to Muhammad Shafique with their respective weapons. The accused persons succeeded to flee away from the place of occurrence while making aerial firing. They shifted Muhammad Shafique to hospital at Changa-Manga from where he was referred to Jinnah Hospital, Lahore but he succumbed to the injuries on the way .
3. Liaqat Ali, S.I. (PW-13) visited the place of occurrence on the same day, i.e. 24.08.2008 and completed formalities as to the initial process of investigation and kept the arrest of appellant and his co-accused Sibghat Ullah alias Shaukat Ali and Muhammad Zohaih adjourned till receiving medico-leg al certificates from them. During investigation, he found the cross version being suspicion and kept the arrest of accused of cross version pending and ultimately he prepared cancellation report of cross version.
Muhammad Arshad, A.S.I, furnished secondary evidence of Muhammad Aslam, S.I. (since dead) and identified his signature and handwringing on daily diaries relating to the recovery of pistol from the appellant on 21.09.2008 and other relevant documents.
4. Dr. Mian Afnan (PW-8) held autopsy on the dead body of deceased Shafique alias Bhola on 25.08.2008 at about 06:00 a.m. and observed allowing injuries: 1-A An entry wound 0.7 cm. x 0.7 cm., 18-c.m. from left knee joint on left thigh anteriorly .
1-B Exit wound 1 cm. x 1 cm. 12 cm. from left knee joint on left thigh posteriorly .
2 Multiple abrasions on dorsal aspect on right hand.
3 Multiple abrasions on dorsal aspect on left hand.
4 Abrasion 0.8 cm. x 0.8 cm. on the right shoulder .
5 abrasion 0.5 cm. x 0.5 cm. on lateral aspect of left knee joint.
Cause of death was shock and hemorrhage due to anti-mortem fire-arm Injury No. 1(A)(B), which were sufficient to cause death in ordinary course of nature. Probable duration between injury and death was few hours whereas between death and postmortem within twenty hours.
5. At the commencement of trial, the prosecution produced 14-witnesses besides the reports of Chemical Examiner and Punjab Forensic Science Agency (Ex.PQ & Ex.PR). The appellant and his co-accused, in their statements, recorded under Section 342, Cr.P.C., had denied and controverted all the allegations of fact leveled against them, they neither opted to make statements under Section 340(2), Cr.P.C. on oath, nor produced any evidence in their defence.
6. Learned trial Court, upon conclusion of the trial, proceeded to acquit Sibghat Ullah alias Shaukat Ali, Zohaib Iqbal and Abdul Razzaq whereas convicted and sentenced the appellant, as stated above. Hence, this criminal appeal.
7. Learned counsels for the appellant submit that the appellant is quite innocent and has falsely been implicated in this occurrence; that both the witnesses of ocular account were closely related inter-se as well as the deceased and they were chance witnesses having no reason whatsoever to be present at the venue of occurrence; that Iftikhar Ahmed (PW-5) was not certain with regard to the weapon of offence being carried by the appellant at the relevant time; that the medical evidence does not lend support to the ocular account qua the number of injuries; that none from the acclaimed eye-witnesses had accompanied the deceased while in injured condition to the hospital except one Muhammad Asghar , a friend of the deceased, who does figure nowhere as a witness; that the delay of 2-1/2 hours in reporting the matter to the police coupled with the delay of twenty hours in conducting the postmortem examination shows that the prosecution story was maneuvered subsequently by stopping the daily diary of the police station; that the deceased was taken to the hospital and he was fully conscious but the investigating officer did not record his statement due to malafide intention; that the co-accused having identical role have already been acquitted of the charge by the learned trial Court by, disbelieving the prosecution evidence to their extent; that the crime empty was submitted to the office of Punjab Forensic Science Agency after the arrest of the appellant and, thus, the positive report of the aforesaid office was not conclusive one; that the motive part of the occurrence was previous quarrel, a day before the occurrence, which could not be proved by the prosecution.
Lastly , he has prayed for acquittal of the appellant.
8. Conversely , learned District Public Prosecutor appearing for the State assis ted by learned counsel for the complainant has vehemently contended that it was a broad day-light occurrence, which had taken place in an open field Where identity of the culprits, being co-villager , could not be doubted; that both the witnesses of ocular account remained consistent on all material particulars of the incident coupled with the medical evidence; that the acquittal of co-accused has no bearing upon the fate of the instant case having their case on different footing; that there is no contradiction between ocular and medical evidence; that the weapon of offence pistol 30-bore recovered from the appellant was subsequently found wedded with the crime empty secured from the place of occurrence; that the prosecution established motive against the appellant. Lastly , he has prayed for dismissal of the appeal.
9. 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.
10. Munawar Hussain (PW-4)/complainan t, brother of deceased Muhammad Shafique set the law in motion while stating that on the fateful day at about 03:30 p.m., the appellant alongwith three others intercepted his brother Muhammad Shafique alias Bhola, the appellant made a fire shot with his pistol hitting at the left thigh of Muhammad Shafique through and through, thereafter , all the accused caused injuries to Muhammad Shafique with their respective weapons at different parts of his body . Iftikhar Ahmed and Muhammad Asif had witnessed the occurrence. The testimony of the compla inant was only to the extent of running the machinery of law into motion and nothing else, being hearsay and week type of evidence which requires corroboration from strong independent source of evidence.
11. Iftikhar Ahmed (PW-5) and Muhamma d Asif (PW-6), nephew and cousin of deceased Muhammad Shafique had demonstrated unanimously and tried to support the complainant deposing that on the fateful day at about 03:30 p.m. they were sitting at Fazal Din Chowk, Muhammad Shafique was going into the fields, in the meanwhile, Zulfiqar Ali armed with pistol 30-bore, Zohaib Iqbal armed with rifle, Shaukat Ali and Abdul Razzaq armed with clubs, emerged there. On raising lalkara by Zohaib Iqbal to teach a lesson to Muhammad Shafique on the pretext of their quarrel two days before the allege d occurrence, Zulfiqar Ali made a fire shot with his pistol 30-bore, which hit at the left thigh of Muhammad Shafiqu e alias Bhola. The remaining accused gave beatings to the deceased with their respective weapons and caused injuries on different parts of his body . On raising hue and cry, people of the vicinity also attracted there. They shifted Muhammad Shafique to the Rural Health Centre, Changa Manga from where he was further referred to Jinnah Hospital, Lahore but he succumbed to the injuries on the way .
During cross-examination Iftikhar Ahmed (PW-5) deposed that he was a student of Law in Baha-ud-Din Zikriya University since year, 2008, he used to remain in Campus of the University , he left his home at about 02:00 p.m. for the hotel of one Muhammad Aslam and remained there for more than three hours, the distance between Chowk Fazal Din (place of occurrence) and his house was about 4-1/2 acres whereas Muhammad Asif (PW-6) came there after one and half hour later to his arrival and remained busy in gossiping. He claimed that he was present at the hotel, which was 15 to 50 feet away from the place of occurrence at the relev ant time and admitted that two criminal cases were registered against him including robbery and theft. In that scenario, when the said witness, being a student of Law, was usually residing at the Campus of Baha-ud-Din Zakriya University , he could not furnish any plausible reason to leave the Campus during study days and reach exactly at the place where the alleged occurrence had taken place. He mentioned that he left the place at 02:00 p.m. for the hotel but the record is silent with regard to the time of his arrival at the hotel and also purpose to reach the hotel. The involvement of said witness in the cases of robbery and theft requires his testimony to be hardly believed.
Muhammad Asif (PW-6) had deposed that the appellant was armed with rifle and co-accused Zohaib Iqbal was armed with pistol 30-bore contrary to the crime report wherein they were alleged to have carried the weapons vice- versa. During cross-examination, he deposed that "on the fateful day there was marriage ceremony of a son of one Haji Fazal Din, the distance between his house and the bride's house was about 50-kilometres, he attended the ceremony and shown his ignorance in response to the question whether any video-movie was made at the ceremony , however , he admitted that he remained in the said ceremony for about 1-1/2 hours then he returned to his village after about two to quarter past two hours. It is a matter of understanding that usually a marriage ceremony , at day time, starts at 02:00 p.m. and ends at 05/06:00 p.m. The aforesaid witness had admittedly participated the marriage ceremony , at the distance of 50-kilometers away from his residence then how could it be believed that after attending the ceremony , he reached at the place of occurrence before 03:00 p.m., perhaps for the said reason he had interchanged the crime weapon allegedly carried by the appellant and co-accused Zohaib Iqbal at the venue of occurrence.
12. There are many other factors, which constrained me not to believe the presence of the aforesaid eye-witnesses at the venue of occurrence. Primarily , they remained silent with regard to fact of sustaining fire-arm injury by the appellant, who remained admitted in the hospital and in that regard a cross-version was registered wherein the set of accused persons of the complainant party was tried separately , who were acquitted by learned trial Court. This aspect of the case speaks volume with regard to the mode and manners of the occurrence as ascribed by the prosecution. Secondly , the deceased was taken to the hospital by the police constable and in the relevant column of name of relative or friend in the medico-legal report of the deceased (Ex.PL), while in injured condition, the name of one Muhammad Asghar was mentioned but said Muhammad Asghar does not figure anywhere as a witness.
The question arises that if anybody from Muhammad Hussain (PW-4) and Muhammad Asif (PW-6) was available at the venue of occurrence at the relevant time, he would have definitely accompanied the deceased, in injured condition, to the hospital and his name would have reflected in the aforesaid certificate. From the aforementioned discussion as well as co-existing circumst ances of the case, it appears that none of the claimed eye-witnesses was present at the venue of occurrence and their evidence were maneuvered subsequently in order to create evidence against the appellant and his co-accused.
13. On attracting at the venue of occurre nce, Liaqat Ali, SI (PW-13) alongwith other police contingents visited the place of occurrence, drafted the complaint for the registration of case on the statement of the complainant, prepared injury statement, inquest report and escorted the dead body to the mortuary . Contrarily , the medico-legal certificate of the deceased (Ex.PL), while in injured condition, shows that he was taken to the hospital where he was provided first-aid and his medico-leg al examination was also conducted. The medico-legal certificate shows three injuries upon his person including two fire-arm injuries (entry and exit) and third one was a multiple abrasion on the back of right hand.
14. Dr. Mian Afnan (PW-8) held autopsy on the dead body of deceased Muhammad Shafique and observed three more injuries i.e. multiple abrasions on dorsal aspect on right shoulder and on lateral aspect of left knee joint Earlier neither the Investigating Officer nor the doctor , who had Conducted medical examination in injured condition, had observed the aforesaid injured, which raise question if these injuries were already available then how the Investigating Officer and the Medical Officer had lost sight of it. The said injuries were the result of some blunt object just to equalize the number of injuries with the number of accused. Moreover , the duration between injuries and death was few hours whereas between death and postmortem examination within twenty hours. The unexplained delay of 20-hours in conducting the post mortem examination on the dead body of the deceased points out a real possibility that the time had been consumed by the local police and the complainant party in order to procure and plant the eye-witnesses for cooking up a false story for the prosecution.
A reference may also be made to cases titled "Muhammad Ilyas versus Muhammad Abid aliaslla 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. During investigation, the appellant disclosed and led the police party to the recovery of pistol 30-bore on 21.09.2008. The empties were transmitted to the office of Punjab' Forensic Science Agency on 20.09.2008, after the arrest of the appellant and one day prior to the recovery of weapon of offence from him for getting expert report with regard to its comparison and the report from the aforesaid office (Ex.PR) has been received with positive result. The question arises that when the appellant was already in the police custody for nine days and the Investigating Officer had shown the recov ery of pistol against him on 21.09.2008 after a day, the empties were sent for seeking expert report. In the circumstances, the possibility cannot be ruled out of consideration that the same had been managed and maneuvered by making fire shot from the weapon recovered at the instance of the appellant in order to get favourable report of Ballistic Expert. Anyhow , the dispatch of crime empty to the office of Punjab Forensic Science Agency after arrest of the appellants renders it to be legally unacceptable and, thus, the recovery of weapon of offence from the appellant remained inconsequential. Reliance is placed on case titled "Nazeer Ahmed versus The State" (2016 SCMR 1628 ) wherein it has been held as under: "the crime-empty secured from the place of occurrence was sent to the office of Forensic Science Agency after recovery of the gun rendering such recovery to be legally unacceptable-:"
16. The motive as set up by the prosecution was that two days prior to this incident, a quarrel took place between the deceased and the accused persons but it is uncertain that out of four accused persons mentioned in the crime report, who's one of them had quarreled with the deceased, what was the cause of that quarrel, who was witness of that quarrel and who had separated them. It was neither reported to the police nor any Panchayat was convened for patch-up. The motive part of the occurrence, being words of mouth, could not get corroboration from any other independent source of the evidence, which remains unproved and a shrouded mystery as well.
17. From the aforesaid discussion in detail, I have reached at an irresistible conclusion that the prosecution has failed to prove the charge of homicidal death of the deceased at the hands of the appellant and his co-accused beyond shadow of reasonable doubt. Both the witnesses of ocular account could not establish their presence at the venue of occurrence at the relevant time. They remained away , one at the Univers ity and the other at the marriage ceremony at a distance of 50-kilometers away from the place of occurrence. In absence of any close relative or eye-witness, as claimed for, the deceased while in injured condition was taken to the hospital by one Muhammad Asghar but amazingly said Asghar was not cited as a witness, who was the best person to narrate the real facts.
The testimony of acclaimed eye-witnesses was neither trustworthy nor confidence inspiring. The ocular account was contrary to the medical evidence qua the number of injuries and delay of about twenty hours in conducting the postmortem examination of the deceased by itself speaks volume with regard to the promptness of lodging the crime report. The recovery of weapon of offence remained inconsequential and motive part of the occurrence was a shrouded mystery . There is no iota of evidence available with the prosecution against the appellant. The evidence produced by the prosecution was neither convincing nor confidence inspiring to maintain the conviction and sentence of the appellant.
18. For what has been discussed above, I am not inclined to maintain the conviction and sentence of the appellant rather 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.