' This judgment will dispose of Criminal Appeal No,420 of 1998 filed by Javed Aslam appellant, who was convicted and sentenced by Judge Special Court, Anti-Terrorism, Lahore-II, Lahore Division, Lahore on 2-5-1998 to undergo 25 years' R.I under section 302, P.P.C. For the murder of Muhammad Amin constable. He was also directed to pay Rs,50,000 as compensation to the legal heirs of the deceased, in default one year R.I.
2. The occurrence in this case took place on 12-6-1996 at 8.15 p.m near the Agricultural Form of Sh.
Ahmad Zia situated at Civil Line, Sheikhupura.
3. Muhammad Ashraf Goraya, S.I., P.W.15 complainant got recorded his statement before Rustam Ali S.I., P.W.2 which is Exh. P.A. At 8-40 p.m on the same night while the formal F.I.R. Was recorded at 9- 00 p.m in the Police Station, which is Exh .P. A/1.
4. Brief facts of the case as narrated in the F.I.R. By complainant Muhammad Ashraf Goraya, S.I./S.H.O. Are that on 12-6-1996, he alongwith 7/8 other police constables were on patrol duty at the High Way on an official jeep. All of them, saw three persons in a suspicion condition, complainant stopped his official vehicle in order to check those three persons. Muhammad Amin F.0 No,1300, first of all stepped down from the said vehicle and tried to check those suspicious persons, then the three accused persons , who were armed with fire-arms started firing at the police party. One of the fire hit Muhammad Amin F.0 on his forehead, who after receiving the same fell on the ground.
Thereafter, the complainant alongwith other police officials followed the accused persons and asked them to surrender alongwith firearms but the accused persons went on firing at the police party and ran towards the Sheikhupura Stadium. The accused persons entered into the Stadium, they were encircled by the police party. Accused persons were again asked by the police party to surrender alongwith fire-arms but they did not pay any heard to the police request.
' The complainant alongwith his companion while using the right of self-defence started firing at the accused persons. One of the accused persons received injuries with firearm fell on the ground while two of the accused persons taking the benefit of wind storm ran away from the spot.
Thereafter, complainant went near the injured accused, who had received many injuries on his person and was bleeding profusely. The said injured accused person told his name as Mushtaq resident of Lakhodhar of Lahore while he told the name of his companion Javaid resident of Pir Bahar Shah, Sheikhupura and Yasin resident of Kotli, Lahore. The Investigating Officer also took into possession a pistol 30 bore P.3 alongwith four empty cartridges P.4 to P.7 lying near the dead body of injured accused, who died there and then. Muhammad Amin F.0 was taken to Civil Hospital Sheikhupura for medical aid, lateron he also died.
5. Muhammad Ashaf Goraya, complainant P.W. 15, the Investigating Officer of this case drafted complainant Exh.P.A and sent the same to Police Station through Shahadat Ali F.0 for formal registration of the case. He sent the dead body of Mushtaq alias Mushtaqi accused after preparing his inquest report for post-mortem examination. He also took into possession blood-stained earth from the spot where Muhammad Amin F.0 was injured vide memo. Exh. P.M. Muhammad Amin F.0 also died in General Hospital, Lahore, his inquest report was also prepared and his dead body was sent for post-mortem examination . On 30-6-1996 present appellant was arrested. On 8-7-1996 he got recovered 12 bore pistol P.1 from Sheikhupura Stadium, which was taken into possession vide memo. Exh.P.E. Javed Aslam appellant also got recovered 30 bore pistol during the course of investigation of case F.I.R. No, 166.96 under section 392, P.P.C. The third accused namely Muhammad Amin was got declared proclaimed offender, and is still absconder.
6. Prosecution in order to prove its case produced 15 witnesses in all. Amongst them there are five eye witnesses namely Sarfraz Hussain F.C. P.W. 8, Muhammad Aslam F.0 P.W.9, Muhammad Ashraf F.C. P.W. 10, Muhammad Iqbal F.0 P.W. 11 and Muhammad Boota, F.0 P.W.12. Thereafter, the statement of the appellant was recorded under section 342, Cr.P.C. There is a report of Chemical Examiner regarding the bloodstained earth taken from the spot which is Exh. P.S while that of Serologist i.e Exh.P.T. There is a report of fire-arm expert i,e, Exh. P.U.
7. Learned counsel for the appellant has read before me the prosecution evidence, the statement of the appellant recorded under section 342, Cr.P.C. And makes the following submissions. He submits that it was a case of no evidence. Adds, that all the eye witnesses and the recovery witnesses produced by the prosecution are police officials. He further submits that in the instant case, occurrence took place at 8.15 p.m but no identification parade had taken place regarding the identity of present appellant as required under the law in the Jail premises after his arrest. He further submits that there are material contradictions in the statements of the witnesses. He submits that although, the police officials are as good witnesses as the public witnesses and relied on the judgment of Supreme Court of Pakistan, which is 1993 PCr.LJ 217, wherein it was held, that the statements of the police officials should be scrutinized with great care and caution. He also submits that in the instant case, according to the doctor, who has conducted the postmortem examination, the death of Mushtaq alias Mushtaqi, the alleged co-accused of the appellant took place instantaneously and he had no time to depose the name of the appellant and his co- accused. As regard to identification parade he has relied upon 1997 SCMR 175 and PLD 1992 FSC
390. He further submits that the conduct and the statements of the alleged eye-witnesses are most unnatural because according to their statements none of them tried to save the life of Muhammad Amin F.0 who was injured but all of them went to Mushtaq alias Mushtaqi co-accused of the appellant. Lastly, he submits that no empty was taken from the spot. Moreover, the pistol and the four empty cartridges allegedly recovered from near the dead body of Mushtaq alias Mushtaqi were never sent to the fire-arm experts, that there is conflict between ocular account and medical evidence and this is a case of acquittal last because there is no corroboration of ocular testimony in the instant case,.
8. On the other hand, learned A.A.-G submits that although there is no independent corroboration to the statements of five eye witnesses produced by the prosecution but they are natural witnesses and their presence at the spot cannot be discarded, that they were members of patroting party accompanied by the complainant that F.I.R. Was lodged promptly and there was no between the eye witnesses and the present appellant. He vehemently supports the judgmeit of the learned trial Court.
9. I have heard the learned counsel for the parties and have also gone through the evidence recorded by the learned trial Court with their assistance. In the instant case it was alleged in the F.I.R., that three accused persons fired at the deceased Muhammad Amin F.C. But according to the post-mortem examination of the deceased Muhammad Amin, F.0 there is only one injury on his person. It cannot be said with certainity that whose fire hit the deceased. Furthermore, according to Dr. Mubashar Ahmad, P.W. 5, who has conducted the post-mortem examination on the dead body of both the deceased persons? According to him the death of Mushtaq alias Mushtaqi co-accused of the appellant took place instantaneously. The doctor has further replied in cross-examination, that deceased Mushtaq was not in a position to give any Statement after receiving 10 fire-arm injuries and some of them were on vital parts of the body of the deceased. In order to reach at just conclusion, I would like to mention the statement of Dr. Mubashar Ahmad P.W. 5 alongwith his cross-examination, which is reproduced below.
10. Dr. Mubashar Ahmad D.M.S., on 13-6-1996 at 8.45 a.m had conducted postmortem examination on the dead body of Muhammad Amin, F.0 and found the following injuries on his person.
INJURIES:
1. A fire-arm wound of entrance 0.7 c.m. x 0.7 x D.N.P. On the front of fore-head 4 c.m. Above the bridge of nose. 2 c.m. Below the hair margin.
2. An exit wound 1.5 c.m. x 1.5 c.m. On the left back of head 7 c.m. Behind the left ear.
3. A lacerated wound 2.5 c.m. x 2 c.m. Surronded by two abrasion on the left eye regin eye ball was intact.
ON DISSECTION ' Injury No,1 damaged the scalp, skul, bones into pieces (frontal left parietal bone left temporal and occiptal bone, membrance brain matter. The stomach was found intact and contained two ounces of fluid only. The urinally bladder was found empty.
' Injuries Nos.1 and 2 were caused with fire-arm. Injury No,3 with blunt weapon could be cased by fall on the ground).
' In my opinion death occurred due to sever shock. Injury to the vital organs leading to cardiresporatory failure. Injury No,1 was sufficient to cause the death of person in an ordinary, course of nature. The time between injury and death was immediate and time between death and the post-mortem examination was within 24 hours. After postmortem examination stitched dead body alongwith police papers and clothes of the deceased and post-mortem report were handed over to C-Muhammad Aslam C.No,517. Exh.P.0 is the carbon copy of the post-mortem report which is signed by me. Pictorial diagram of the injuries is Exh.P.C/1 which is marked and signed by me.
' On the same day at 9.45 a.m. Also conducted the post-mortem examination on the dead body of Mushtaq son of unkown and found the following injuries on his person.
INJURIES:
(1) A fire-arm wound of entrance 1 c.m. x 1 c.m. x D.N.P. On the right shoulder joint 8 c.m. Below the right clavical .
(2) An exit wound 4 c.m. x 4 c.m. On the right medial upper arm 7 c.m. Below the axilla.
(3) A fire-arm wound entrance 1 c.m. x 1 c.m. On the back of left abdomen 7 c.m. From mid line 8 c.m. Above the buttlock line.
(4) An exit wound 5 c.m. x 3 c.m. On the front of abdomen 6 c.m. Below the umblicus.
(5) A laceration by fire-arm 12 c.m. x 2 c.m. Into skin deep on the back of the right chest mid and lower part 7 c.m. Away from mid line.
(6) A fire-arm wound of entrance 1 c.m. x 1 c.m. On the right back of the thumb at its base made an exit wound 2 c.m. x 1.5 c.m. On the palmer side of right thumb caused fracture of the under line bones.
(7) Right thumb was crushed by fire-arm at its termination portion.
(8) A laceration by fire-armed on the terminal portion of the right middle finger.
(9)An entry wound 1 c.M. x 1 c.m. On the lower part of the scrotum. Made an exit wound 1.5 c.m. x 11.5 c.m. On the mid of scrotum it was muscle deep only.
(10) A laceration by fire-arm 1.5 c.m. x 1 c.m. x skin deep on the medial side of right knee joint.
ON DISSECTION: ' Injury No,1 damaged the skin, muscles humerus bone. Injury No,3 damages the skin, muscles, big blood vessels urinary bladder small and large intestine peretoneum.
Note.---Abdominal cavity was full of blood and stomach contained 4 ounes of fluid only.
' All injuries were anti-mortem and caused with fire-arm. In our opinion, death occurred due to severe shock, heamarrhage and carodiorespiratory failure. All injuries collectively and injury No, 3 individually was sufficient to cause death of a person in an ordinary course of nature. The time between injury and death was immediate and time between death and post-mortem was within 24 hours. After post-mortem examination stitched dead body alongwith police papers, clothes of the deceased post-mortem report were handed over to the constable Muhammad Aslam No, 517.
They are also signed by Dr. Arshad Iqbal Dar, MS, HHQ, Hospital, Sheikhupura and Dr.Muhammad Safdar, DHQ, Hospital Sheikhupura. Exh. P.D. Is the correct carbon copy of the original post mortem report which is in my hand and signed by me. Pictorial diagram of injuries Exh.PD/1 is also in my hand and signed by me.
' Xxx Learned defence counsel.
' When dead body was brought to the mortuary, time is not mentioned, in the Exh.P.C. It is correct that the time between injury and death depends upon our visual observation of the injuries and approximation. Definite facts about the time between the injury and death cannot be ascertained. I have gone through all the police papers which were brought alongwith the dead body before conducting postmortem examination. It is correct that deceased Muhammad Amin received only one bullet injury on the front of the fore-head. I have studied only the Medical Jurisprudence of Moody and Siddiq Hussain during my study. There are three stages of rigor mortis. I have not mentioned the stages of the rigor mortis while examining the dead body of Muhammad Amin. If a bullet is fired with a rifle it would be high vilocity and if the bullet is fired from pistol or revolver it would be of low vilocity. It is correct that the bullet has damaged a major portion of the head. As there were no tattooing or burning around the edges of the wound so it can be said that the bullet was fired from a distance of more than 5 feet. No metalic body or foreign body was recovered from dead body of the deceased. The death in the case of Muhammad Amin deceased was immediate (instantaneous). It is correct that the death was caused in the case of Mushtaq deceased also instantaneous. It is correct that after receiving 10 injuries which have already been mentioned in the post-mortem report Exh.P.D. He may not be able to give any statement.
11. According to the prosecution case, the occurrence took place at 8.15 p.m. After the arrest of the appellant no identification parade was held in this case as required under the law in Jail premises.
Moreover, no public witness was either cited as an eye-witness or recovery witness in this case. The case of the prosecution was that there was firing from both the sides for about 15/20 minutes but not a single empty cartridge was taken from the spot. This fact also goes against the prosecution.
It has come on record that from near the dead body of Musthaq alias Mushtaqi co-accused of the appellant a pistol P.3 and four empty cartridges were recovered but they were not sent to fire-arm expert in order to determine whether these empty cartridges were fired from the said pistol or not.
It has also come on record in the F.I.R. And also during the cross-examination that there was also wind storm at the time of occurrence and lights were off. In such-like situation, it was necessary on the part of the Investigating Officer to have got conducted the identification parade, which has not been held in the instant case. No blood-stained earth was also taken into possession from near the dead body of Mushtaq alias Mushtaqi co-accused of the appellant. It has also come on record during cross-examination in the evidence, that none of the alleged eyewitnesses tried to save the life of Muhammad Amin F.C. They did not try to go towards Muhammad Amin F.C. First, but all of them according to the prosecution story went towards Mushtaq alias Mushtaqi co-accused of the appellant, after he fell down. This is not unnatural and improbable. Name of father of Javed Aslam appellant was also not mentioned in the F.I.R. The ocular account furnished by the prosecution is not corroborated by any other independent source either in the shape of motive or in the shape of recovery of any incriminating evidence against the appellant.
12. Keeping in view all the circumstances of the case, I am of the considered view, that prosecution has not been able to prove its case against the appellant beyond any shadow of doubt. In this view of the matter, benefit of doubt is extended to the appellant. This appeal is accepted. The judgment of learned trial Court is set aside. Appellant shall be released forthwith if not required in any other case.