AALIA NEELUM, J. The appellant-Muhammad Iqbal son of Haji Hadiat Ali Khan, caste Harral, resident of Chak No.150/R.B Madouana, Tehsil Jaranwala District Faisalabad has assailed his conviction and sentence recorded by the learned Addl. Sessions Judge, Jaranwala District Faisalabad vide judgment dated 27.06.2018 in private complaint filed under sections 302/34/109 PPC P.S. Balochni, Jaranwala, District Faisalabad titled {{"Mst. Kishwar Sultana Vs. Muhammad Ipbal, etc"}}, whereby the learned trial court convicted the appellant under section 302(b) PPC and sentenced him to undergo imprisonment for life as Tazir with the direction to pay Rs.3,00,000/- as compensation to the legal heirs of the deceased under section 544-A of Cr.P.C and in case of default in payment thereof, to further undergo 06-months S.I. The benefit of section 382-B Cr.P.C was also extended in favour of the appellant.
2. Feeling aggrieved by the judgment of the learned trial court, the appellant has assailed his conviction through filing instant jail appeal bearing Criminal Appeal No.234157-J of 2018. It is pertinent to mention here that the complainant also filed Crl. Rev. No.231746/2018 qua enhancement of sentence awarded to the appellant and P.S.L.A. No.231740/2018 against acquittal of co-accused Muhammad Ehsan. As all the matters are arising out of one and the same judgment of the learned trial court, therefore, these are being disposed of through consolidated judgment.
3. Briefly, the prosecution story as alleged in the private complaint (Ex.PB) of Mst. Kishwar Sultana (PW-1)-the complainant is that on 11.06.2016 at about 5/6:00 a.m, she (PW-1) alongwith her husband Muhammad Nawaz (the deceased) was going to their land to avail water turn, while Muhammad Arshad and Riaz Hussain (PW-2) were also going to watering their fields. When they reached in front of Qilla No.25, square No.40 owned by Allah Yar, Muhammad Iqbal (the appellant) alongwith one unknown co-accused while armed with firearm weapons, was already present there, who intercepted them. Muhammad Iqbal (the appellant) raised lalkara that he would teach them a lesson over getting divorce of their daughter and made a fire shot by his carbine 12-bore, which landed near left knee of her husband, who fell down. Again Muhammad Iqbal (the appellant) made fire shot, which did not hit the husband of complainant. Subsequently, the accused persons on gun point extended threats of life to the complainant and others, however, upon the noise of fire shot, respectables of the locality arrived there and the accused persons while brandishing their weapons decamped from there. They shifted the injured to Rural Health Center Khurrarian wala but he was referred to DHQ Hospital, Faisalabad, where Muhammad Nawaz eventually succumbed to the injuries.
4. The motive behind the occurrence was that the marriage of daughter of the complainant namely Mehwish Nawaz was solemnized with Muhammad Qayyum about one and half year before the occurrence, however, she obtained divorce through court on 19.05.2016 and for the said reasons, the accused committed the incident.
5. The complainant Mst. Kishwar Sultana (PW-1) submitted written application (Ex.PA) before S.H.O concerned police station, whereupon formal F.I.R (Ex.CW-1/A) was chalked out. After registration of case, the investigation of this case was conducted by Muhammad Ishfaq Mujahid S.I. (CW-6), who having found the accused/appellant guilty, prepared report under section 173 of Cr.P.C. Being dis- satisfied with the result of investigation, as the investigating officer being in league with the accused did not investigate the matter properly, the complainant was constrained to file private complaint (Ex.PB) and after recording the cursory evidence of the complainant and having perused the record, all the accused persons were found connected with the commission of offence, so they all were summoned to face the charge. Thereafter, the learned trial court formally charge sheeted the appellant on 10.06.2017 to which he pleaded not guilty and claimed trial. The complainant in support of its version produced as many as three (03) witnesses, whereas rest of the witnesses were produced by the prosecution as C.W-1 to C.W-6.
6. The appellant-Muhammad Iqbal was also examined in terms of Section 342 Cr.P.C., wherein he neither opted to appear as his own witness in terms of section 340(2) Cr.P.C., nor produced any defence evidence. In response to a particular question that why this case was against him and why the PWs deposed against him, the appellant-Muhammad Iqbal made the following deposition:- "PWs are inter-se related. Due to previous family litigation, they falsely entangled me in this case and falsely deposed against me."
7. The learned trial court after recording evidence and evaluating the evidence available on record in light of arguments advanced from both sides, found the prosecution version proved beyond any shadow of reasonable doubt, which resulted into conviction of the appellant in the afore stated terms.
8. I have heard the arguments advanced by the learned counsel for the parties and have minutely perused the record available on the file.
9. In the instant case, the incident took place on 11.06.2016 at 05/06:00 a.m in the area of Chak No.150/R.B, which falls within the jurisdiction of Police Station Balochni, District Faisalabad, which is at a distance of 06-kilometers from the place of occurrence, whereas Mst. Kishwar Sultana (PW-1)- the complainant (wife of Muhammad Nawaz deceased), reported the incident to police through written application (Ex.PA) at 09:45 a.m, at Chak No.150/R.B. to Ishfaq Mujahid Inspector (CW-6)-the investigating officer, whereupon formal FIR (Ex.CW-1/A) was lodged at 10:10 a.m. It is note-able that the occurrence took place at 5/6:00 a.m. and distance between the place of occurrence and police station was 06-kilometer, whereas Mst. Kishwar Sultana (PW-1)-the complainant took 3:45/4:45 hours for reporting the incident. Mst. Kishwar Sultana (PW-1)-the complainant deposed during examination in chief that, "We attended Nawaz and shifted him to the Civil Hospital Khurrianwala from where he was referred to DHQ Hospital Faisalabad. When we reached in Emergency ward of DHQ Hospital Faisalabad Muhammad Nawaz succumbed to the injury." In the similar lines, Riaz Hussain (PW-2)-the eye witness-Ist cousin of the deceased, deposed.
Whereas, during cross-examination, Mst. Kishwar Sultana (PW-1)-the complainant deposed that, "I do not know who informed the police about the occurrence. Police reached on the spot after thirty minutes/one hour after the occurrence. I never went to the P.S. Balochni. I do not know the intervening distance between place of occurrence and P.S. Balochni. I do not know the name of person who jotted down the application Ex.P-A for registration of case. I have seen hospital Khurrianwala and afterwards to hospital Faisalabad and when deceased eventually passed away." Contrary, to the deposition of Mst. Kishwar Sultana (PW-1)-the complainant, Riaz Hussain (PW-2)-the eye witness deposed during cross examination that, "The application Ex.P-A was written by a police official on the instruction of complainant." He (PW-2) further deposed during cross-examination that, "We shifted the Nawaz deceased to hospital Khurrianwala after 30/45 minutes of the occurrence." He (PW-2) also deposed during cross-examination that, "I did not inform the police nor I know about the person who informed police. The police arrived within span of 30 to 45 minutes after the occurrence." Contrary to the depositions of Mst. Kishwar Sultana (PW-1)-the complainant and Riaz Hussain (PW-2)-the eye witness, Muhammad Ishfaq Mujahid S.I. (CW-6)-the investigating officer deposed during cross examination that, "I reached the place of occurrence after forty five minutes and at that time, ten to fifteen persons were present on the place of occurrence. At that time, the deceased Muhammad Nawaz had passed away. After completion of formal proceedings, I sent the dead body for postmortem. Almost thirty to forty five minutes consumed in completing formal proceedings at the place of occurrence." From the depositions of above said witnesses i.e. Mst. Kishwar Sultana (PW-1)-the complainant, Riaz Hussain (PW-2)-the eye witness and Muhammad Ishfaq Mujahid S.I. (CW-6)-the investigating officer, it reveals that soon after the incident, Muhammad Ishfaq Mujahid S.I. (CW-6)-the investigating officer reached the place of occurrence and the incident was reported by Mst. Kishwar Sultana (PW-1)-the complainant to him (CW-6). As per prosecution case, incident took place at 5/6:00 a.m on 11.06.2016. If the situation is same, then the time of reporting the incident to police is negated by the documentary evidence i.e. application for registration of case (Ex.PA). On perusal of application (Ex.PA), it reveals that at the bottom of said application "Police Karwai" was written by Muhammad Ishfaq Mujahid S.I. (CW-6)-the investigating officer at 09:45 a.m, whereupon FIR (Ex.CW-1/A) was lodged at 10:10 a.m. on the same day. In the given circumstances, it is open to the prosecution to indicate reasons for the delay in reporting the incident to the police. Even entire prosecution evidence is silent that who informed Muhammad Ishfaq Mujahid (CW-6)-the investigating officer about the incident. This has to be established by evidence.
10. Apart from that, un-explained discrepancies in the timing as recorded in the inquest report (Ex.CW-3/D) has to be kept in view. It is the prosecution version that the incident was reported to the police, as deposed by the prosecution witnesses, soon after the incident within 30/45 minutes and as per police proceedings written at the bottom of application (Ex.PA) at 09:45 a.m, whereas in column No.3 of the inquest report (Ex.CW-3/D), the time of receiving information regarding death was mentioned as "08:00 a.m". The entry of 08:00 a.m. in the column No.3 of inquest report (Ex.CW- 3/D) was made later on with blue ball point. The nature of weapon used in the instant incident was also not mentioned in column No.12 of inquest report (Ex.CW-3/D) and mere it was mentioned "firearm weapon". If it is so, then it is the investigating officer to explain by plausible evidence on record, as to how the inquest report was undertaken at 08:00 a.m on a point of time, when the incident was not reported to the police. The first circumstance, which raises doubt about the time of occurrence of death as claimed by the prosecution is that in the inquest report (Ex.CW-3/D), in column No.3 regarding receiving information of death was written as 08:00 a.m. to Muhammad Ishfaq Mujahid (CW-6)-the investigating officer, whereas as per prosecution version, Muhammad Nawaz-then injured was shifted to R.H.C. Khurrarianwala soon after the incident and where from he was referred to D.H.Q Hospital, Faisalabad and on reaching in emergency ward of D.H.Q, Hospital, Faisalabad, Muhammad Nawaz succumbed to the injuries. Thereafter, the incident was reported by Mst. Kishwar Sultana (PW-1)-the complainant at the place of occurrence i.e. Chak No.150/R.B. at 09:45 a.m. The entire prosecution case is silent on the point that, when Muhammad Nawaz-then injured breathed his last and when and by whom the dead body of Muhammad Nawaz-deceased was brought back from D.H.Q Hospital, Faisalabad to the place of occurrence. Whereas, Muhammad Ishfaq Mujahid (CW-6)-the investigating officer deposed that when he reached the place of occurrence after 30/45 minutes of the occurrence, the deceased had passed away and as per prosecution case incident took place at 05/06:00 a.m. on 11.06.2016.
11. In addition to this, Dr. Sadaqat Ali S.M.O (CW-3), who conducted post-mortem examination on the dead body of Muhammad Nawaz deposed during his court statement that the duration between death and postmortem was 11/12:00 hours. From the postmortem report (Ex.CW-3/A), it reveals that the dead body was received in the dead house at 06:50 p.m. on 11.06.2016 and complete documents from police were received at 06:55 p.m and autopsy was conducted upon the dead body of Muhammad Nawaz-the deceased at 07:00 p.m. on 11.06.2016. This out-rightly suggests that Muhammad Nawaz-the deceased took his last breathe between 07:00/08:00 a.m. on 11.06.2016. Whereas, the prosecution witnesses i.e. Mst. Kishwar Sultana (PW-1)-the complainant, Riaz Hussain (PW-2)-the eye witness and Muhammad Ishfaq Mujahid (CW-6)-the investigating officer deposed that soon after the incident (5/6:00 a.m.), he (CW-6) reached the place of occurrence within short span of time within 30/45 minutes. These circumstances, to my mind go to suggest that the FIR was ante-timed. It also gets support from postmortem report (Ex.CW-3/A) that complete police documents were received at 06:55 p.m on 11.06.2016. This creates serious flaw in the prosecution evidence so as to precisely fix the time when the deceased took his last breathe and no material evidence has been produced by the prosecution to prove the time when the deceased took his last breathe. In this case, Dr. Sadaqat Ali S.M.O (CW-3), who conducted postmortem examination on the dead body of Muhammad Nawaz-deceased, deposed during his court statement that he conducted postmortem examination on 11.06.2016 at 07:00 p.m. The dead body was received in the dead house at 06:50 p.m on 11.06.2016. Whereas, as per inquest report (Ex.CW-3/D), in column No.3 regarding time and date of receiving information regarding death, it was mentioned as "11.06.2016 at 08:00 a.m.". However, Dr. Sadaqat Ali S.M.O (CW-3) deposed during his examination in chief that probable time between injury and death was 03 to 04 hours. It is note- able that as per prosecution version brought on the record through the testimonies of Mst. Kishwar Sultana (PW-1)-the complainant, Riaz Hussain (PW-2)-the eye witness, application for registration of case (Ex.PA), private complaint (Ex.PB) and FIR (Ex.CW-1/A), the occurrence took place at 5/6:00 a.m. If I apply the yard stick as spoken by Dr. Sadaqat Ali S.M.O (CW-3), then Muhammad Nawaz died between 8/9:00 to 9/10:00 a.m. It indicated that the incident did not take place as stated by the prosecution. In terms of inquest report (Ex.CW-3/D), if police received information about the death of Muhammad Nawaz at 08:00 a.m, whereas prosecution witnesses i.e. Mst. Kishwar Sultana (PW-1)-the complainant, Riaz Hussain (PW-2)-the eye witness and Muhammad Ishfaq Mujahid (CW-6)-the investigating officer deposed that after the occurrence within spin of 30 to 45 minutes, police reached at the place of occurrence, then the time of death of Muhammad Nawaz-the deceased becomes doubtful. This also throws cloud of doubt about the time when actually the incident took place and was reported to the police. Riaz Hussain (PW-2)-eye witness had also dishonestly improved his statement and defence brought on the record improvements made by him during his examination-in-chief. He (PW-2) during his cross-examination deposed as under:- "I mentioned in my statement u/s 161 Cr.P.C that the fire shot hit the deceased upon his knee of left leg. Confronted with Ex.D-A, wherein it is not so recorded. I mentioned in my statement u/s 161 Cr.P.C that the accused persons fled away from the place of occurrence while extending aerial fire shots. Confronted with Ex.D-A, wherein it is not so recorded."
This fact creates doubt in the prosecution case as well as on the credibility and truthfulness of the statement of Riaz Hussain (PW-2)-the eye witness. Therefore, I do not think it safe to rely on the evidence of these prosecution witnesses. This also creates doubt about the genuineness of the version given by Riaz Hussain (PW-2)-the eye witness.
12. As per version of prosecution, Mst. Kishwar Sultana (PW-1)-the complainant has specifically mentioned in application for registration of case (Ex.PA) as under:- {{URDU TEXT}} Whereas, during examination in chief, Mst. Kishwar Sultana (PW-1)-the complainant has deposed that, "On 11.06.2016 at about 05/06:00 a.m, I alongwith Muhammad Nawaz deceased, Muhammad Arshad and Riaz PWs were going to take our water turn." In the similar lines, Riaz Hussain (PW-2)-the eye witness deposed. From the deposition of Mst. Kishwar Sultana (PW-1)- complainant creates doubt about their presence at the place of occurrence. Mst. Kishwar Sultana (PW-1)-the complainant deposed during cross-examination that:- "The deceased was owner of land two acres. We were going on foot to irrigate the land on the day of occurrence. Arshad and Riaz were also with us on that day. Our turn of water starts at about 06:00 a.m. The cultivation of Riaz and ours is separate but our water turn begins at the same time. Our land is situated at a distance of one and half acre away from the village."
Contrary to the deposition of Mst. Kishwar Sultana (PW-1)-the complainant, Riaz Hussain (PW-2)- the eye witness deposed during cross-examination that:- "I am a worker in Arzoo textile mills. The leave system in mill is on weekly basis. We are having land 2/3 Acres. Our turn of water begins at about 04:45 a.m. First turn of water is availed by Muhammad Nawaz deceased and then comes our turn."
The place of occurrence is at a distance of one and half acre away from the village. They were bound to give credible explanation for being present at the place of occurrence. There is conflict in between the statements of both prosecution witnesses i.e. Mst. Kishwar Sultana (PW-1)-the complainant and Riaz Hussain (PW-2)-the eye witness. They had not brought on the record certified copy of warabandi revealing that there was any warabandi fixed for the irrigation purpose.
Was it because no FIR was actually registered at the time as alleged by the prosecution and after some consultation and deliberation it came into existence? Admittedly, the occurrence took place on thoroughfare and the witnesses are chance and interested witnesses, therefore, their presence at the place of occurrence become doubtful. The motive as well as recovery of weapon of offence has already been disbelieved by the learned trial court. Thus, this court drew conclusion that the prosecution has become unable to prove the case against the appellant beyond any shadow of doubt.
13. From the facts and circumstances narrated above, I am persuaded to hold that the prosecution had not been able to prove its case against the accused beyond shadow of doubt as there were many dents in the prosecution story. In the present case, the possibility of the occurrence being not witnessed by both prosecution witnesses cannot be ruled out, as such the conviction and sentence recorded by the learned trial court cannot be sustained. Reliance has been placed on the case reported as "Muhammad Akram v. The State" (2009 SCMR 230) wherein the Hon'ble Supreme Court of Pakistan held that:- "Even single circumstance creating reasonable doubts in a prudent mind about the guilt of the accused makes him entitled to the benefit, not as a matter of grace and concession but as a matter of right."
14. Therefore, from the evidence on record, I find that a reasonable doubt exists in the prosecution version. The genesis of the occurrence has been concealed. The occurrence has not taken place as deposed by the PWs. The ocular evidence is also not proved beyond any reasonable doubt to the extent of the appellant. The PWs also cannot be held as reliable witnesses. Therefore, giving the benefit of doubt to the appellant, the Crl. Appeal No.234157-J of 2018 filed by Muhammad Iqbal, appellant is accepted in toto. Resultantly, the conviction and sentence recorded by the learned trial court vide judgment dated 27.06.2018 is set aside, as a consequence whereof, the appellant- Muhammad Iqbal is ordered to be acquitted of the charge in a private complaint filed under Sections 302, 34 & 109 PPC P.S. Balochni, Jaranwala, District Faisalabad titled {{"Mst. Kishwar Sultana Vs. Muhammad Iqbal, etc"}}. The appellant-Muhammad Iqbal is directed to be released forthwith, if not required in any other case.
15. So far as Criminal Revision No.231746 of 2018 filed by the complainant, namely Mst. Kishwar Sultana for enhancement of sentence awarded to the respondent No.1-Muhammad Iqbal by the learned trial court is concerned, for the reasons afore-stated, the same is devoid of any legal force, which is accordingly dismissed.
16. As far as P.S.L.A No.231740 of 2018 seeking conviction of respondent No.1-Muhammad Ehsan is concerned, this court has noted that no effective role has been attributed to the respondent No.1- Muhammad Ehsan. For what has been discussed above in the light of prosecution evidence, medical evidence and documentary evidence, the acquittal of respondent No.1-Muhammad Ehsan does not suffer from any illegality so as to call for interference of this Court with the impugned judgment. This court has also taken note of the settled principle of criminal jurisprudence that unless it can be shown that the judgment of the lower court is perverse or that it is completely illegal and no other conclusion can be drawn except the guilt of the accused or there has been misreading or non-reading of evidence resulting in miscarriage of justice. Even otherwise, when accused is acquitted by a court of competent jurisdiction, double presumption of innocence is attached to his case. The acquittal order cannot be interfered with, whereby an accused earns double presumption of innocence as held in {{Muhammad Mansha Kausar v. Muhammad Ashgar and others (2003 SCMR 477)}}. In this case the prosecution has not been able to bring on record adequate incriminating evidence against respondent No.1-Muhammad Ehsan which connects him with the alleged crime. The learned trial Judge has advanced valid and plausible reasons for recording acquittal in favour of respondent No.1. The judgment of acquittal does not call for any interference. Consequently, I find no merit in this P.S.L.A No.231740 of 2018, which is hereby dismissed being without merits.