Malik Shahzad Ahmad Khan, C.J:- This judgment shall dispose of Criminal Appeal No.29448-J of 2022, filed by Haq Nawaz (appellant) against his conviction and sentence. Haq Nawaz (appellant) along with Shafique alias Rembo (co-accused since acquitted) and Shafaqat alias Basharat (co- accused since acquitted), was tried in case F.I.R. No.460, dated 24.12.2019, registered at police station Satiana, District Faisalabad, in respect of offences under sections 302/34 PPC and vide impugned judgment dated 09.03.2022, passed by learned Additional Sessions Judge, Jaranwala, he (appellant) has been convicted and sentenced as under:- Under section 302(b) PPC to imprisonment for life and to pay an amount of Rs.1000,000/- to the legal heirs of the deceased, namely Muhammad Faryad, as compensation under section 544-A of Cr.P.C. The compensation shall be recoverable as arrears of land revenue and in default thereof to further undergo six months simple imprisonment.
2. Brief facts of the case as given by Muhammad Mumtaz, complainant (PW-1) in his complaint (Ex.PA), on the basis of which the formal FIR (Ex.PM) was chalked out, are that he (complainant) was resident of Chak No.35/GB and a labourer by profession. On 23.12.2019, at 3.30 a.m, the complainant along with Farman (PW-2) and Iqbal (PW since given up), was sitting in his Haveli of cattle and were chatting with each other, whereas the son of the complainant namely Muhammad Faryad deceased was constructing Khuda for hens. Suddenly on hearing hue and cry from the chowk, the complainant along with Farman Ali (PW-2) and Muhammad Faryad (deceased), went towards the chowk and saw that Haq Nawaz (appellant) and his co-accused were giving beating to nephew of the complainant namely Muhammad Shahban. Muhammad Faryad (deceased) tried to intervene but Haq Nawaz (appellant), raised a lalkara that Muhammad Faryad (deceased), be taught a lesson as he (deceased) had stolen the cow of one Munawar. In view of the complainant party, Liaqat Ali (co-accused since P.O), made a fire shot, which landed on the right thigh of Muhammad Faryad (deceased). The deceased fell on the ground, whereafter Haq Nawaz (appellant), made a fire shot with his pistol 30-bore, while putting his pistol on the right thigh of Muhammad Faryad (deceased). The remaining accused persons namely Shafique alias Rambo and Shafaqat alias Basharat (co-accused since acquitted), made aerial firing. On raising hue and cry by the complainant party, many people of the locality gathered at the spot, whereas the appellant and his co-accused fled away from the spot while making fire shots.
The motive behind the occurrence was that on the previous night of occurrence a cow of one Munawar was stolen and the foot trackers led the footprints of the accused towards Chak No.34/GB. In Chak No.34/GB, one Irfan was residing, who was having enmity of murders with the complainant party. The said Irfan told the abovementioned Munawar that his cow was stolen by Muhammad Faryad (deceased). The abovementioned Munawar and Haq Nawaz appellant etc. had close friendship with each other and due to the above-mentioned grudge, the occurrence was committed by the appellant and his co-accused.
3. After completion of investigation, the challan was prepared and submitted before the learned trial Court. In order to prove its case, the prosecution produced eleven witnesses during the trial.
The prosecution also produced documentary evidence in the shape of (Ex.PA) to (Ex.PX). In defence evidence Ex.DA, was produced. The statement of the appellant under section 342 Cr.P.C, was recorded, wherein he denied the allegations leveled against him. The learned trial Court vide its judgment dated 09.03.2022, found the appellant guilty, convicted and sentenced him as mentioned and detailed above.
4. It is contended by learned counsel for the appellant that the appellant is absolutely innocent and he has falsely been implicated in this case being in league with the complainant party; that there is over-writing in complaint (Ex.PA), regarding the role attributed to the appellant as interpolation was made by the complainant while changing the words from left to right thigh and words by putting the pistol on the thigh of the deceased were also added; that there is conflict between the ocular account and the medical evidence as Dr. Kashif Jameel (PW-9), did not note any blackening, burning or tattooing on injury No.2, therefore, the stance of the complainant in Ex.PA that appellant made a fire shot while putting his pistol on the thigh of the deceased is contradicted by the medical evidence; that the prosecution miserably failed to prove its case to the extent of the appellant beyond the shadow of doubt; that pistol (P-6) was planted against the appellant to strengthen the weak prosecution case and no motive was proved against the appellant, therefore, the appeal filed by the appellant may be accepted and the appellant may be acquitted from the charge.
5. On the other hand, learned Deputy Prosecutor General for the State assisted by learned counsel for the complainant has supported the impugned judgment while controverting the arguments of learned counsel for the appellant and argued that the prosecution has proved its case against the appellant beyond the shadow of any doubt; that the prosecution eye-witnesses remained consistent on all material aspects of the case; that the prosecution case is fully supported by the medical evidence and corroborated by the recovery of 30-bore pistol (P-6), at the pointing out of the appellant; that the motive was also proved against the appellant through reliable evidence of the prosecution witnesses;, that there is no substance in this appeal therefore, the same may be dismissed.
6. Arguments heard and record perused.
7. According to the prosecution case, the motive behind the occurrence was that on the previous night of occurrence, a cow of one Munawar was stolen and the foot trackers led the footprints of the accused towards Chak No.34/GB. In Chak No.34/GB, one Irfan was residing, who was having enmity of murders with the complainant party. The said Irfan told the abovementioned Munawar that his cow was stolen by Muhammad Faryad (deceased). The abovementioned Munawar and Haq Nawaz appellant etc. had close friendship with each other and due to the above-mentioned grudge, the occurrence was committed by the appellant and his co-accused. It is, therefore, evident that cow of the appellant was not stolen in this case rather the cow of one Munawar was stolen. Learned counsel for the complainant has conceded that Haq Nawaz (appellant), has no relationship with the abovementioned Munawar. It is claim of learned counsel for the appellant that as the appellant was a foot-tacker, who tried to trace out the accused responsible for the theft of the cow of the abovementioned Munawar, therefore, he has falsely been implicated in this case.
I have noted that Naseer-ud-Tariq SI (PW-8), who was first Investigating Officer of this case has conceded that Haq Nawaz (appellant) and Liaqat (co-accused since P.O), started foot-detection being foot-detectors and the same reached to Shahbaz Phulawar at Chak No.34-G.B. Relevant part of his statement made in this respect reads as under:- "...............it is correct that accused persons Haq Nawaz and Liaqat started foot detection being foot detector and the same reached to Shahbaz Phulawar at chak No.34/GB..............."
As Haq Nawaz (appellant) was having no personal grudge or enmity against Muhammad Faryad (deceased), therefore, he had no reason to commit the occurrence. Even the learned trial Court in paragraph No.20, of the impugned judgment has disbelieved the motive part of the prosecution case, therefore, I am of the view that the prosecution has failed to prove any motive against the appellant.
8. Insofar as the ocular account of the prosecution case regarding the role attributed to the appellant is concerned, in this respect, I have noted that in the complaint Ex.PA, there is over- writing with regard to role attributed to the appellant. It is evident from the perusal of the complaint Ex.PA that initially it was alleged that Haq Nawaz (appellant), made a fire shot with his pistol, which landed on the left thigh of Muhammad Faryad (deceased) but after interpolation and overwriting the abovementioned words were changed from left thigh to right thigh and the words by putting the pistol on the thigh were also added and as such the role attributed to the appellant has been changed through interpolation and over-writing. It is further noteworthy that in the contents of the FIR (Ex.PM) and in the complaint (Ex.PA), it was alleged that Haq Nawaz (appellant), made a fire shot with his pistol after putting the same on his right thigh but Dr. Kashif Jameel (PW-9), who first medically examined Muhammad Faryad (deceased) in injured condition, did not note any blackening, burning or tattooing on injury No.2, which was on the right thigh of the deceased. He further conceded that in case of a contact fire shot, there is possibility of blackening, burning and tattooing. He also added that as there was no blackening, burning or tattooing on the injuries of the deceased, therefore, the said injuries were not contact wounds and the said injuries were caused from the range of more than three feet. Relevant parts of his statement in this respect reads as under:- "...........................There is possibility of blackening, burning and tattooing if fire shot is made by putting firearm weapon on the person (contact fire).......................................................As per my MLC there is no blackening, burning and tattooing on the injuries. Both are not contact fires. PW volunteer that injured might sustained firearm injuries out of the range of more than 03- feet..................."
I am, therefore, of the view that there is conflict in the ocular account and the medical evidence of the prosecution to the extent of role attributed to Haq Nawaz (appellant), of making a fire shot on the right thigh of the deceased by putting his pistol on his right thigh.
Learned Deputy Prosecutor General assisted by learned counsel for the complainant has next argued that there was a dying declaration of Muhammad Faryad (deceased), wherein he fully implicated Haq Nawaz (appellant), in this case but it is noteworthy that Dr. Kashif Jameel (PW-9), who initially medically examined Muhammad Faryad (deceased) in injured condition was not the medical officer, who allowed the Investigating Officer to record the dying declaration of the deceased. He did not utter a single word in this respect and the Medical Officer, who allowed to record the alleged dying declaration of the deceased was not produced in the witness box.
Moreover, Dr. Kashif Jameel (PW-9), has further stated during his cross examination that the condition of the injured was critical and in the column of history, he has mentioned that the victim did not name the assailant. Relevant part of his statement made in this respect reads as under:- "I did not mention in my MLC due to critical condition the patient was unable to speak. PW volunteer that I mentioned the pulse 110 per minute and blood pressure 90/60 that shows the critical condition. There is no scale mentioned in Medico-legal Certificate as at what limit of blood pressure or pulse makes the person unspeakable. It is mentioned in history that victim did not state the name of any assailant............................"
In order to prove the dying declaration of the deceased, the prosecution has only produced Muhammad Mansha retired SI (PW-11). He stated that he recorded dying declaration of the deceased (Ex.PF) and he also produced the abovementioned document to establish that the deceased was fit to make statement but as mentioned earlier, the relevant Medical Officer, who gave the abovementioned opinion that the deceased was fit to make statement has not been produced in the witness box. It is further noteworthy that in the examination-in-chief, Muhammad Mansha retired SI (PW-11), has stated that at the time of joining Muhammad Faryad (deceased), the then injured into the investigation of this case the father of the deceased namely Muhammad Mumtaz, Mst. Mumtaz Bibi (mother) and Muhammad Tariq (brother), were present, who joined the investigation but the abovementioned witness namely Muhammad Mumtaz (PW-1), did not utter a single word in his examination-in-chief that dying declaration of Muhammad Faryad deceased was recorded in his presence and he only denied a suggestion during his cross-examination that it was incorrect that no such statement was recorded by the police. Remaining above-mentioned witnesses of dying declaration were also not produced by the prosecution in the witness box.
Neither any member of the concerned hospital staff was associated at the time of recording of statement of the deceased nor it was got verified by any official of the hospital that the statement was actually made by the deceased. Under the circumstances, the status of abovementioned statement of the deceased was a statement under section 161 Cr.P.C and not the dying declaration of the deceased. If the abovementioned statement is considered to be statement of the deceased under section 161 Cr.P.C, then the said statement without the test of cross-examination is not worthy of reliance. In the case of "Mst. Zahida Bibi Vs. The State" (PLD 2006 Supreme Court 255), the Hon'ble Supreme Court of Pakistan was pleased to held as under:- ".................................This is an admitted fact that the statement of the deceased was not recorded by the Sub-Inspector of police in hospital in presence of the doctor and further neither any member of the hospital staff was associated at the time of recording the statement nor it was got verified by any official of the hospital that the statement was actually made by the deceased. Be that as it may, the status of such a statement would be hardly a statement under section 161, Cr.P.C. and not a dying declaration of the deceased. This may be seen that the dying declaration or a statement of a person without the test of cross-examination is a weak kind of evidence and its credibility certainly depends upon the authenticity of the record and the circumstances under which it is recorded, therefore, believing or disbelieving the evidence of dying declaration is a matter of judgment but it is dangerous to accept such statement without careful scrutiny of the evidence and the surrounding circumstances, to draw a correct conclusion regarding its truthfulness. The rule of criminal administration of justice is that the dying declaration like the statement of an interested witness requires close scrutiny and is not to be believed merely for the reason that dying person is not expected to tell lie. This is a matter of common knowledge that in such circumstances in preference to any other person, a doctor is most trustworthy and reliable person for a patient to depose confidence in him with the expectation of sympathy and better treatment to disclose the true facts. In the present case, in the manner in which the statement of deceased was recorded by the Sub-Inspector, would seriously reflect upon its correctness and consequently, could not be considered worthy of any credit to be relied upon as dying declaration...................."
Similarly in the case of "Farman Ahmed Vs. Muhammad Inayaat and others" (2007 SCMR 1825), the Hon'ble Supreme Court of Pakistan has held that dying declaration of the deceased requires independent corroboration but as mentioned earlier, in the instant case, none from the concerned hospital appeared to corroborate the abovementioned alleged dying declaration of the deceased.
I am, therefore, of the view that dying declaration of the deceased has not been proved in this case in accordance with the law.
9. Insofar as the recovery of pistol (P-6), at the pointing out of Haq Nawaz (appellant), is concerned, I have noted that the report of PFSA (Ex.PV), is only regarding mechanical operating condition of the abovementioned pistol and the empties recovered from the spot (C1 to C8), did not match with the said pistol, therefore, I am of the view that the recovery of pistol (P-6), at the pointing out of the appellant is of no avail to the prosecution.
10. I have considered all the aspects of this case and have come to this irresistible conclusion that the prosecution miserably failed to prove its case to the extent of Haq Nawaz (appellant) beyond the shadow of doubt. It is by now well settled that if there is a single circumstance which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances which have created serious doubts about the prosecution story. Reliance in this respect is placed on the judgments reported as 'Tariq Pervez versus The State'(1995 SCMR 1345) and 'Muhammad Akram versus The State'(2009 SCMR 230).
11. In the light of above discussion, I am of the view that the prosecution has failed to prove its case to the extent of Haq Nawaz (appellant) beyond the shadow of doubt, therefore, I accept Criminal Appeal No.29448-J of 2022 filed by Haq Nawaz (appellant), set aside his conviction and sentence recorded by the learned trial Court vide impugned judgment dated 09.03.2022 and acquit him of the charge by extending him the benefit of doubt. He is in custody, he be released forthwith if not required to be detained in any other case.
12. It is pertinent to mention here that Liaqat Ali (co-accused), is still a proclaimed offender in this case, therefore, case property be kept intact till his arrest and till decision of the case to his extent.
The findings recorded in this case are only to the extent of Haq Nawaz (appellant) and the case of the above-mentioned Liaqat Ali, co-accused (since P.O) shall be decided on its own merits and on the basis of evidence recorded after his arrest.