Through Criminal Appeal No. 1536 of 2013 under Section 410, Cr.P.C. appellants Mumtaz Ahmad and Muhammad Anar have challenged the vires of judgment dated 26.10.2013 passed by the learned Additional Sessions Judge, Bhalwal, District Sargodha in case FIR No.213/2009 dated 22.08.2009, under Sections 302, 109 & 34, PPC, registered at Police Station, Miani, District Sargodha whereby they were convicted and sentenced as under:- Under Section 302(b) read with 34. PPC Imprisonment for life each and to pay the compensation of Rs. 2,00,000/- each to the legal heirs of the deceased Tasawar Abbas, in case of default thereof, to further undergo simple imprisonment for six months each.
They were held entitled to the benefit of Section 382-B, Cr .P.C.
2. Complainant Muhammad Akbar has preferred Criminal Revision No.887 of 2013 seeking enhancement of sentence of respondents No.1 & 2/ appellants, which shall be decided through this common judgment.
3. The case of the prosecution in brevity is that complainant Muhammad Akbar (PW-8) earlier got lodged Rapt No. 18 dated 20.08.2010 (Ex.PK) and after death of his son, this case was registe red vide FIR (Ex.PK/1) alleging therein that on 20.08.2010 at about 07:00 p.m., he alongwith his son Tasawar Abbas, who was a doctor by profession and running a clinic in village Man Wais, was going towards their house at Malowal and when reached near "Saim Nala", Mumtaz Ahmad and Muhammad Anar (appellants) alongwith an unknown emerged their abruptly on a motor-cycle Yamaha and hit the same with their motorcycle from the front side. They fell down whereupon all the accused started beating his son with their respective batons. Accused Mumtaz, who was having double-barrel gun, kept on raising lalkara while brandishing his gun raised that whosever dares to intervene, would be done to death. In the meanwhile, Muhammad Yar Since acquitted) also came there while instigating the accused persons to keep on beating the Tasawar Abbas. The complainant beseeched the accused persons and rescued his son. He shifted his injured son to the hospital where he expired on 22.08.2020 whereupon this case was registered.
Motive behind the occurrence was that hot words were exchanged between the deceased and accused Mumtaz Ahmad a few days prior to the occurrence.
4. Aziz Ahmad, SI (PW-11) had visited Rural Health Centre Miani and undertaken all the necessary steps of initial investigation He arrested appellant Muhammad Mumtaz on 18.09.2010, who during investigation led to the recovery of gun 12-bore (P-6), which was taken into possession vide recovery memo (Ex.PP). Karamat Ali, SI (PW- 12) arrested the appellant Muhammad Anar on 08.11.2010, who led to the recovery of Sota (P-1) which was taken into possession vide recovery memo (Ex.PA). He recorded the statements of witnesses under Section 161, Cr.P.C. and after completion of investigation, got prepared report under Section 173, Cr .P.C.
5. Dr. Muhammad Imtiaz Ahmad, (PW-7) conducted medico-legal examination of deceased Taswar Abbas, while in injured condition on 20.08.2010 and observed seven injuries on his person. All the injuries were caused with blunt weapon except injury No.4 which was result of sharp-edged weapon. 'Duration between injuries and medical examination was 2 to 4 hours. He succumbed to the injuries on 22.08.2010, whereupon the above-mentioned Medical Officer conducted post mortem examination and observed the aforementioned injuries. Injuries No. 1, 2 & 4 were collectively sufficient to cause death in ordinary course of nature due to injuries on vital organs of lung and hemorrhage leading to cardiopulmonary arrest and eventually death. The probable duration between injuries and death was 36 to 48 hours whereas between death and post mortem examination, within 6 to 8 hours.
6. At the commencement of trial, the prosecution produced fifteen witnesses besides the report of Chemical Examiner (Ex.PQ) and that of Serologist (Ex.PR). The appellants, in their stateme nts recorded under Section 342, Cr.P.C., had denied and controverted all the allegations of fact levelled against them. They neither opted to make their statements under Section 340(2), Cr .P,C., nor produced any defence evidence.
7. Learned trial Court, upon conclusion of the trial, had convicted and sentenced the appellants in the above terms vide impugned judgment dated 26.10.2013. Hence, this criminal appeal.
8. Learned counsels for the appellants submit that the appellants are quite innocent and have nothing to do with the alleged occurrence; that the complainant, being chance witness, could not justify his presence at the venue of occurrence; that the prosecution has introduced two other witnesses including PW-9 in the supplementary statement; that in the supplementary statement he has specified the injuries, which were mentioned with joint role of the accused persons but subsequently deviated from the said statement while appearing in the dock; that there is delay of two days in lodging the crime report admitting the deceased while in injured condition was-medically examined with police docket; that one of the injury was caused by sharp-edge weapon but none of the accused was having any sharp-edge weapon; that there was a delay in conducing postmortem examination, which shows the prosecution story concocted and the delay caused while managing the witne sses to entangle the appellants and others; that appellant Mumtaz Ahmed was alleged to have 12-bore gun at the spot but no fire arm injury had been caused; that the recovery of 12-bore gun and club from both the appellant s affected in pursuance of their disclosure, which remained in consequential; that the motive was just the words of mouth had not been proved through any independent source of evidence; that the prosecution has failed to prove the charge of homicidal death of the deceased at the hands of the appellants beyond shadow of reasonable doubt, therefore, the appellants deserve acquittal.
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9. Conversely , learned Law Officer appearing for the State has contended with vehemence that the prosecution has been able to prove the charge again st the appellant to the hilt through cogen t and reliable evidence; that the ocular version is fully supported with the medical evidence; that the recovery of weapon of offence have been recovered from both the appellants; that the motive has never been denied by the other side; that there was no occasion for the prosecution to falsely implicate the appellants in place of the real culprits. At the end, a prayer has been made for dismissal of the appeal in hand.
10. I have heard learned counsels for the appellants, learned Law Officer appearing for the State and gone through the record.
11. In order to substantiate the charge against the appellants, the prosecution has produced Muhammad Akbar (PW-8)/complainant and Ghulam Abbas (PW-9)/cousin of the complainant. The complainant while appearing in the dock in the Court room deposed that on 20.08.2010 he alongwith his son Tasawar Abbas (deceased) was going towards Melowal to his house on motorbike at about 07:00 p.m., when they reached near "Saim Nala", all of sudden accused persons namely Mumtaz Ahmad, Muhammad Anar and one unknown person intercepted them due to which they fell down. The accused persons started torturing them with their hard objects hitting at different parts of his son. When he intervened, accused Mumtaz while brandishing double barrel gun raised Lalkara that if any one came forward, he would be done to death. In the meanwhile, Muhammad Yar PW attracted at the spot and remained raising lalkara to further beat Tasawar Abbas. The accused persons succeeded to flee away from the spot. Tasawar Abbas was taken to hospital where he remained admitted for two days and ultimately died on 22.08.2010, thereafter , the- crime report was registered at the instance of the complainant. On the same day, the complainant made supplementary statem ent with some variation while specifying the injuries to each individual, which were earlier made the joint role to all the accused and introduced two witnesses including Ghulam Abbas PW-9, which were not on surface earlier but when the complainant entered into the witness box, he again narrated the occurrence and attributed joint role to the appellants in deviating of the supplementary statement. Apparently , it shows that no supplementary statement was ever made by him for the reason that the said statement was not exhibited but surprisingly he, of his own, admitted that he made the supplementary statement in his deposition.
12. Ghulam Abbas (PW-9), made an abortive attempt to make the story in line with the complainant but his introduction subsequently in the supplementary statement does not appeal to reason that he was available at the spot at the time of occurrence. I am not convinced that Ghulam Abbas (PW-9) was present and his name was over looked at the time of lodging the crime report. Not only the said witness but also the complainant has not given any specific reason for travelling with his son on that very day and rightly argued by learned defence counsel that he was a chance witness. In( case, the complainant was present there, he had to receive some of the injuries because in his view, his son was being brutally tortured by the accused persons and he did not intervene just to save his skin. Admittedly , he had not received even a single scratch at the place of occurrence, which negates his presence at the relevant time. The ocular account being not corroboratory inter-se and the presence of both the witnesses being shaken are discarded by this Court. In this regard, I seek guidance from the case titled "Mst. Sitghra Begum and another versus Qaiser Pervez and others" (2015 SCMR 1142) wherein it has been held that "if the presence of eye-witness at the place of occurrence is not believed than rest of the evidence would be required as a matter of caution. In the circumstances, the presence of eye-witnesses at the place of occurrence could not be believed."
It is important to mention here that the occurrence had taken place on 20.08.2010 at 07:00 p.m. whereas the case was registered after two days of the occu rrence when the deceased had succumbed to the injuries in the hospital.
The record evinces that the deceased while in injured condition was medically examined through police docket, which does show that they approache d the police station prior to shifting him in the hospital for medical examination but did not lodge the crime report. The delay in lodging the crime report makes the prosecution story highly doubtful because the same was afterthought and registered after deliberation and consultation. Reliance may be placed on case titled "Mehmood Ahmed and three others versus The State and another" (1995 SCMR 127). This view has further been fortified in case titled "Nazeer Ahmad versus Gehne Khan and others" (2011 SCMR 1473 ).
Not only the crime report was belatedly registered but the postmortem examination was conducted at 06:30 p.m. on the next day with duration of about twenty-four hours. After postmortem examination, the duration given by the Medical Officer was 24 to 36 hours, which is sufficient to infer that the occurrence had taken place much prior to the time as given by the prosecntion. The deceased had received seven injuries, out of them, one was caused by sharp-edge weapon but none of the accused persons was having any sharp-edge weapon at the time of occurrence. I am shacking that when the appellant was holding 12-bore gun and came with the intention to kill the deceased then why the said weapon had not used and only-club/danda was used at the time of occurrence, which does not appeal to a common prudence.
13. The medical evidence does not support to the ocular version even when the ocular account is discarded, the rest of the evidence falls to ground having no support and corroboration from any other corner . In absence of ocular account, the medical evidence cannot be used in favour of the prosecution. It is well-settled principle of law that once the intrinsic value of ocular account is disbelieved then rest of the corroboratory piece of evidence, even of a higher degree, would automatically be collapsed. A reference is invited to case titled "Faqeer Muhammad versus Shahbaz Ali and others" ( 2016 SCMR 1441 ), which reads as under: "After ruling out of the ocular account the other circumstances of the case providin g corroboration or support to the ocular account had automatically collapsed. In these circumstances High Court had extended the benefit of doubt to respondent No.1 and had acquitted him of the charge. Upon our own independent evaluation of the evidence we have not been able to take any legitimate exception to the said conclusion reached by the High Court."
14. The recovery of 12-bore gun and the club from both the appellants remained inconsequential as 12-bore gun had not used by Mumtaz Ahmed, the appellant at the time of occurrence. In the same manner , the motive as set up by the prosecution was that a few days prior to the occurrence some hot words were exchanged between the deceased and Mumtaz Ahmed but no time, date and place has been mentioned in that regard. No respectable was produced nor the matter had been reported to the police and even on such a petty matter no one took hard or harsh step to take the life of any, person. The motive is just the words of mouth and has not been proved through any independent witness.
15. Having scanned the entire prosecution evidence, a conclusion is inescapable that the prosecution has failed to prove its case against the appellants beyond shadow of reasonable doubt. The witnesses could not establish their presence at the venue of occurrence at the relevant time. The complainant introduced two witnesses at latter stage and deviated from the previous attribution of the accused persons and even the complainant by itself does not establish his own presence at the venue of occurrence being a chance witness. The duration between death and postmortem i.e. 24 to 36 hours does not tally with the time of occurrence as mentioned by the prosecution. The recovery and the motive have also not been established. In view of the situation, I am not agreement with the observation of the trial Court qua the conviction and sentence of the appellant.
16. For what has been discussed above, this appeal is allowed the conviction and sentence of appellants Mumtaz Ahmed and Muhammad Anar are set aside and they are acquitted of the charge by extending the benefit of doubt to them. They are directed to be released forthwith from jail; if not required to be detained in connection with any other criminal case.
Crl. Revision No. 887 of 2013
17. For the reasons mentioned hereinabove for acquittal of appellants the revision petition in hand for enhancement of their sentence has lost its relevance as such stands dismissed in-limine.