MUHAMMAD TARIQ NADEEM, J.---W ajid Hussain, appellant, faced trial in case FIR No. 72 dated 16-04-2010, under sections 302, 34, P.P.C. registered at Police Station Saddar Sarai Alamgir and after conclusion of trial, vide judgment dated 22-02-2016, the learned trial court convicted and sentenced him as under:- Under section 302(b), P . P. C.
Life imprisonment along with compensation of Rs. 5,00,000/- to the legal heirs of Muhammad Saeed, deceased, under section 544-A, Cr .P.C. and in default thereof to further undergo 06 months' S.I.
Benefit of section 382-B, Cr .P.C. was extended to the appellant.
The Appellant has filed the titled appeal against his conviction and sentence, while a criminal revision has been preferred by Raja Muhammad Idrees, complainant for enhancement of sentence from life imprisonment to normal penalty of death to Wajid Hussain, appellant. Since common questions of law and facts are involved, therefore, both these matters are being disposed of by means of this single judgment.
2. The brief actualities of the case, as described in transgression report (Ex.PC/1) are that Muhammad Idrees, complainant (PW.8) was resident of Village Bhalwal Gharbi. On the fateful day i.e. 16-04-2010 at about 04:15 p.m., he along with Ishtiaq Ahmad and Muhammad Shahbaz, PWs were present near the Barbar Shop of Gull Tasaf, situated near his house. His elder brother Muhammad Saeed (since deceased) came out of house and proceeded towards Waseem Utility Store, when he reached near the shop, Wajid Ali, armed with pistol .30 bore and Muhammad Jamroz, armed with sota were already present there, where accused Jamroz (since acquitted through separate trial) raised lalkara to kill Muhammad Saeed. Upon which Wajid Ali made fire shot at Muhammad Saeed with his pistol, which landed on the back side of left knee, who fell on the ground. On their hue and cry, the accused persons took to their heels.
The motive behind the occurrence was that two days prior to the occurrence hot words were exchanged between the accused and the deceased over dispute of children.
3. It is pertinent to mention here that initially the FIR was lodged under sections 324, 34, P.P.C. but the then injured Muhammad Saeed succumbed to the injuries and the investigating officer after receipt of information of the death of Muhammad Saeed had added offence under section 302, P.P.C. The appellant failed to join investigation and ultimately , he was declared proclaimed offender . However , he was arrested on 08-02-2015 by Muhammad Aslam, SI (PW .11).
After formal investigation, a report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court. The learned trial court after taking cognizance of the matter and fulfilling all pre-trial codal formalities, framed the charge against the appellant on 31-03-2015 under section 302, P.P.C. to which he pleaded not guilty and claimed trial. In order to prove the case against the accused, the prosecution examined as many as 11 witnesses and statements of two PWs namely Masood Ahmad Bhatti, draftsman and Doctor Muhammad Usman have been shifted on the file of this trial under section 512, Cr .P.C. as (PW .12) and (PW .13).
The ocular account has been furnished by Muhammad Idrees, complainant (PW.8) and Ishtiaq Ahmad (PW.9). The investigation of this case was conducted by Shamshair , SI (PW.10) and Muhammad Aslam, SI (PW.11), whereas, the medical evidence was provided by Doctor Shakeel Ahmad (PW.1), who conducted autopsy on the dead body of deceased, as per transposed statement of Doctor Usman Ali (PW.13), who medically examined the then injured Muhammad Saeed.
The remaining evidence produced by the prosecution was more or less formal in nature.
4. After completion of evidence on behalf of the prosecution, the statement of appellant was recorded under section 342 of The Criminal Procedure Code, 1898 wherein he refuted the allegations levelled against him and professed his innocence. While answering to a question, "why this case has been registered against you and why the PWs have deposed against you?, the appellant W ajid Hussain replied as under:- "There is inimical relation between my family and complainant party due to civil litigation pending before the different Courts of competent jurisdiction. Due to said litigation pending between the parties, complainant party was pressurizing me not to pursue the said cases otherwise they will get involve me in fake criminal case. The occurrence alleged by the complainant party is un-witnessed and no one knows that who had murdered the deceased Muhammad Saeed. The witnesses deposed against me due to close relation with the complainant party .
I have been roped in the present case falsely only due to litigation regarding the valuable property pending between the parties. I am quite innocent and has nothing to do with the commission of alleged offence."
The appellant neither opted to appear as his own witness in terms of section 340(2) of The Criminal Procedure Code, 1898, nor produced defence evidence.
5. After conclusion of trial the appellant was convicted and sentenced by the learned trial court as mentioned and detailed above, hence, the instant appeal before this Court.
6. I have anxiously considered the arguments put forth by the learned counsel for the appellant as well as learned Deputy Prosecutor General for the State assisted by learned counsel for the complainant and scanned the record minutely .
In order to prove its case, the prosecution has mainly relied on the eye-witness account, medical evidence, recovery of weapon of of fence, forensic report, absconsion of the appellant and lastly the evidence of motive.
7. It has been noticed that the ocular account of the prosecution's case consists of the depositions made before the learned trial court by Muhammad Idrees, complainant (PW.8) and Ishtiaq Ahmad (PW.9). According to the prosecution story , the appellant made a straight pistol shot upon Muhammad Saeed (deceased), which landed on the backside of left leg below the knee joint. The complainant as well as Ishtiaq Ahmad (PW.9) have given a photographic picture of the injury sustaine d by Muhammad Saeed (deceased). The injury attributed to the appellant mentioned in written complaint (Ex.PC) by Muhammad Idrees, complainant (PW.8) is exit wound but the Doctor Shakeel Ahmad (PW.1), who conducted autopsy on the dead body of deceased Muhammad Saeed on 16-04-2010 at about 09:45 p.m. noted following injuries on his body , which for convenience reproduced as under:- INJURIES
1. A firearm wound (entry) at top of right knee. Fracture of vessel of right knee. Wound measuring 1/2 x 1/2 cm. No blackening and burning. Margins inverted.
2. Firearm wound (exit) measuring 1 x 1 cm at back of right lower leg below knee.
8. I have also observed that the Doctor Usman Ali, MO appeared before the learn ed trial court as PW.10 against co-accused of appellant namely Jamroz in a separate trial. Now he had left the job and his evidence got recorded in the first trial was transposed in the trial against the appellant as PW.13 vide order dated 06-02-2016. Similarly , the evidence of another witness Masood Ahmad Bhatti, draftsman was also transposed in this case as PW .12.
The doctor Usman Ali, MO had got recorded his statement on 14-05-201 1. The said doctor on 16-04-2010 medically examined the then injured Muhammad Saeed and noted following injuries on his body:- INJURIES
1. Firearm wound 1 x 1 cm on back of right leg 2 to 3 cm blow right knee slightly on the left side. Margins everted.
(exit wound. Bleeding profusely .
2. Another firearm wound 1/2 x 1 cm on anterior aspect of right leg (entry wound).
The said doctor during his cross-examination stated as under:- ...It is correct that according to MLR Ex. PK the injured came in the hospital after 1.15 hours of the occurrence. 1 mentioned the brief history in the MLR Ex.PK as per statement of the injured. It is correct that the injured did not mention the name of any accused while giving the brief history . It is correct that I correctly recorded the brief history as per statement of the injured. It is correct that in injury No. 1, line No. 2, I firstly mentioned the word inverted' and then I wrote the word 'exit' by making overwriting. Volunteer , I corrected the same. I did not put my signatures/initials about this overwriting. It is correct that in injury No. 1, line No. 4, I firstly wrote the word 'inverted' and then made it as 'everted' by overwritin g the same. Volunteer , I corrected the same and put my signatures on it.
It is correct that in the same line I firstly wrote the word 'entry' and then make it as 'exit' by overwriting the same. It is incorrect that I firstly mentioned injury No. 1 as entry wound and then made the same as exit wound by overwriting. Volunteer , I corrected the mistake and put my initials on it. It is correct that I mentioned injury No. 2 after completing the MLR Ex.PK. It is correct that as per injury statement Ex. PE, there was lacerated wound under the knee on the back side of right leg..."
After going through the above-mentioned statement of Doctor Usman Ali (PW.13) and MLC (Ex.PE/1); it is crystal clear that he (PW.13) has made overwriting in the MLC, just to favour the prosecut ion in order to make the medical evidence in line with ocular account.
These glaring contradictions between the ocular version and the medical evidence have sufficiently established that the alleged eye-witnesses were not present at the spot at relevant time, which aspect of the case prompts this.
Court not to place any reliance on them. Keeping in view the afore-stated circumstances, this Court is of the view that the prosecution version with regard to ocular account seems to be tainted, not inspiring confidence and result of due deliberations and consultations, hence the same cannot be given any legal credence. Reliance is placed upon the case titled as "Ishtiaq Hussain and another v . The State and others" ( 2021 SCMR 159 ).
9. So far as motive part of the occurrence is concerned, a specific motive is mentioned in the crime report that two days prior to the occurrence hot words were exchanged between the accused and the deceased over dispute of children but it was an oral assertion of the complainant. During the said interregnum, there is no report of any quarrel or assault in between the parties. No material evidence in the shape of ocular or documentary evidence was produced to substantiate the motive by the prosecution, hence, the motive alleged by the prosecution has rightly been disbelieved by the learned trial court. It is well established principle of law that once the motive is established by the prosecution, then it has to be proved, otherwise, adverse inference! would be drawn. It is settled principle of criminal jurisprudence that if prosecution sets up a motive but fails to prove it, then, it is the prosecution who has to suffer and not the accused. Reliance is placed upon the case titled as "Khalid Mehmood and another v . The State and others" ( 2021 SCMR 810 ).
10. I am also conscious of the fact that the prosecution has made an abortive attempt to strengthen its case through the recovery of weapon of offence i.e pistol (P.7) at the instance of appellant on 15-02-2015 from his residential house. I have noticed that while conducting the recovery proceedings the investigating officer has violated the mandatory provisions of section 103, Cr.P.C. The occurrence took place on 16-04-2010 whereas the appellant was arrested on 08-02-2015, hence, it would not appeal to any prudent mind that after committing the incident, the said appellant would keep the pistol in safe custody for so many years in order to hand it to the police as a gift at a subsequent point of time. Moreso, both the recovery witnesses of seizure memo (Ex.PE) are closely related to the complainant party . They have no residence or any business near the alleged place of occurrence.
The mode of recovery of said pistol at the instance of the appellant makes the said recovery highly doubtful. I am of the view that it is not safe, to rely on such a weak piece of prosecution evidence, which even otherwise is merely supportive of direct evidence and is not the evidence of charge, hence, does not offer any help to the prosecution case in the absence of any trustworthy and confidence inspiring eye-witness account. Reliance is placed upon "Mian Sohail Ahmad and others v. The State and others" (2019 SCMR 956) wherein the august Supreme Court of Pakistan in paragraph No.4 of its judgment has been held as under:- "4. The investigation Officer (PW.15) deposed that the recovery of pistol was effected from a house whose ownership he failed to ascertain. According to him, it was a double storied house and recovery was effected from the ground floor where other family members also resided. The memorandum of recovery (Ex.PG) shows that the pistol was recovered from an open place lying under rough clothes. It would be unsafe to rely on this recovery for a conviction on a capital charge. The ocular account of the sole eye-witness (PW.8) does not inspire confidence in the absence of any corroboration from the identification evidence or the recovery ."
11. Much stress has been laid over absc onsion of the appellant after the occurrence in this case and it has been contended that after the incident the appellant remained fugitive from law for considerable period, which is a strong corroborative piece of evidence against him but even the said- contention is not much helpful to the prosecution. I may observe here that mere absconsio n of accused is not the conclusive proof of his guilt and it is only a suspicious circumstance against the accused that he was under the guilty conscio us. However , suspicions after all are suspicions and the same cannot be given the place of proof and the value of abscontion always depends on the facts of each case. The absconsion of the accused may be consistent with his guilt or innocence, which is to be decided keeping in view overall facts of the case. In "Muhammad Khan and another v. The State" (1999 SCMR 1220 ), it has been held by the Hon'ble Supreme Court of Pakistan that the absconsion itself can never remedy the defects in the prosecution case as neither it is necessarily indicative of guilt, nor is ever sufficient by itself to prove the guilt.
Similar view was taken in the case of "Rohtas Khan v . The State" ( 2010 SCMR 566 ).
12. As a sequel of above comprehensive discussion, I have come to a definite conclusion that the prosecution has failed to prove the guilt of the appellant beyond the shadow of doubt. It is firmly settled by the Hon'ble Supreme Court of Pakistan that not many circumstances creating doubt in the prosecution story are required rather a single circumstance creating doubt is enough to acquit the accused. The Hon'ble Supreme Court of Pakistan in the case of "Muhammad Akram v. The State" (2009 SCMR 230), the Hon'ble Supreme Court of Pakistan, at para No.13, was pleased to observe as under-- "13....It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right".
Similar view was taken in the cases of "Muhammad Adnan and another v. The State and others" (2021 SCMR 16), "Ghulam Abbas and another v. The State and another" (2021 SCMR 23) and "Zulfiqar Ali v. The State"
(2021 SCMR 1373).
13. Resultantly for the reasons recorded above, Criminal Appeal No,585 of 2016 is hereby accepted, impugned judgment against the appellant is set aside and he is acquitted of the charge by extending benefit of doubt in his favour . He shall be released from the jail forthwith, if not required to be detained in connection with any other case.
14. As a natural corollary , criminal revision filed by Muhammad Idrees, complainant for enhancement of sentence from life imprisonment to normal penalty of death is dismissed.