2022 PLP 99 (YLR)

AALIA NEELUM, J.

Ghulam Abbas son of Wali Muhammad, Caste Awan, resident of Katha Saghral, Tehsil and District, Khushab, the appellant along with his co-accused, Rashid Ahmad alias Ahmad Nawaz (since acquitted) was involved in case FIR No.187-2011, dated 10.11.2011, offence under sections 302, 34 P.P.C., registered at Police Station, Katha Saghral, District Khushab and was tried by the learned Sessions Judge, Khushab. The learned trial court seized with the matter in terms of judgment dated 17.01.2013, convicted the appellant under section 302(b), P.P.C. and sentenced him to imprisonment for life with the direction to pay compensation of Rs.2,00,000/- to the legal heirs of the deceased and in case of default thereof, the appellant would further suffer simple imprisonment for six months. 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, Ghulam Abbas, appellant has assailed his conviction by filing instant Criminal Appeal No.45-J of 2013 whereas the complainant Ghulam Sher (PW-8) being dis-satisfied with the impugned judgment dated 17.01.2013, preferred a Criminal Revision No.235 of 2013 for enhancement of sentence of the accused-Ghulam, Abbas. As both matters are arising out of one and the same judgment, therefore, they are being disposed of through a single judgment.

3. The prosecution story as alleged in the FIR (Ex.PD) lodged on the statement/fard bayan of Ghulam Sher (PW-8) the complainant is that on 10.11.2011, the complainant (PW-8) along with Muhammad Fayyaz (since dead) and Shah Muhammad (PW-9) were returning from the land of Zafar Iqbal after laboring there and at about 04:00 p.m., when they reached near the house of Ahmad Nawaz (since acquitted), the deceased, Muhammad Fayyaz was ahead of them and when Muhammad Fayyaz, deceased reached near the baithak of Ahmad Nawaz (since acquitted), the accused-Ghulam Abbas armed with hatchet along with his co-accused, Ahmad Nawaz (since acquitted) came there whereas Ahmad Nawaz (since acquitted) raised lalkara, whereupon the accused Ghulam Abbas inflicted hatchet blow, which landed on the head of the deceased, Muhammad Fayyaz, who fell down while the accused persons fled away. Thereafter, the complainant (PW-8) and Shah Muhammad (PW-9) took Muhammad Fayyaz (since dead) to the police station and from there, Muhammad Fayyaz (since dead) was taken to Civil Hospital, Khushab in injured condition. Thereafter, Muhammad Fayyaz (since dead) was expired in the hospital on 11.11.2011.

4. The motive behind the occurrence was that few days prior to the alleged occurrence, the deceased, Muhammad Fayyaz quarreled with the accused-Ghulam Abbas and the deceased, Muhammad Fayyaz slapped the accused-Ghulam Abbas and as a result whereof, alleged incident took place.

5. On the basis of statement/fard bayan, formal FIR (Ex.PD) was chalked out by Muhammad Saleem, ASI (PW-5). Thereafter, investigation was entrusted to Muhammad Khan, ASI (PW-11), who inspected the place of occurrence, secured blood with the help of cotton vide recovery memo (Ex.PG), prepared unscaled site plan of the place of occurrence (Ex.PK) and recorded statements of prosecution witnesses under section 161 of Cr.P.C. Thereafter, investigation was entrusted to Dost Muhammad, SI (PW-12), who inspected the body of the deceased, Muhammad Fayyaz, prepared injury statement (Ex.PE), inquest report (Ex.PL) and handed over the body of the deceased, Muhammad Fayyaz to Amjad Hussain 878/C (PW-10) for post-mortem examination. After postmortem examination, Amjad Hussain 878/C (PW-10) produced over last worn clothes of the deceased i.e. Shirt (P-3), Shalwar (P-2), Buniyan (P-4) before the Investigating Officer (PW-12), who took the same into possession vide recovery memo (Ex.PH). On 16.11.2011, Muhammad Saeed, Draftsman (PW-6) inspected the place of occurrence and prepared scaled site plans (Ex.PF and Ex.PF/1) and handed over the same to the Investigating Officer (PW-12). On 18.11.2011, the Investigating Officer (PW-12) arrested the accused-Ghulam Abbas and during interrogation, the accused-Ghulam Abbas got recovered weapon of offence i.e. hatchet (P-1) from a Chappar near his house, which was taken into possession by the Investigating Officer (PW-12) vide recovery memo (Ex.PC) and prepared site plan of the place of recovery (Ex.PC/1).

6. Having found the accused persons guilty, the Investigating Officer (PW-12), got prepared challan and sent the same before the learned court of competent jurisdiction. On 12.01.2012, the learned trial court formally charge sheeted the appellant and his co-accused to which they pleaded not guilty and claimed trial. The prosecution in support of its version produced as many as twelve (12) prosecution witnesses.

7. Ocular account of the occurrence in this case has come out from the statements of Ghulam Sher (PW-8) the complainant and Shah Muhammad (PW-9) eye-witness.

8. Dr. Maqbool Hussain appeared as PW-2 and deposed that on 10.11.2011 at about 4:45 p.m., he (PW-2) medically examined the body of Muhammad Fayyaz (since dead) in injured condition and found following injuries on his person: Injuries.

1. A bold cut 2-1/2 cm on right upper forehead, the width was 1/2 cm, underlying skull bone was visibly injured. The wound was 7 above right eyebrow.

2. A bold cut 2 cm x 1/2 cm on right upper forehead, underlying skull bone was visibly injured, the wound was 1 cm supro medial to injury No

1. After conducting medical examination, the doctor rendered following opinion:-- Opinion. "Both the injuries were caused by sharp edged weapon within the duration of 2-3 hours. Ex.PB is carbon copy of MLR and Ex.PB/1 is sketch of injuries. Dr. Syed Fakhar Abbas appeared as PW-1 and deposed that on 11.11.2011, he (PW-1) conducted postmortem examination of the body of deceased-Muhammad Fayyaz and found following injuries on his person: Injuries.

1. A bold (deep) cut 2-1/2 cm x cm on right upper forehead, underlying skull bone was visibly injured. The wound was 7 cm above the right eyebrow.

2. A bold (deep) cut 2-1/2 cm on right side of the forehead, 1 cm supra lateral to injury No.

1. Underlying skull bone was visibly injured.

3. There was a hole 2 x 1/2 cm on anterior middle neck on the trachea. This was tracheotomy hole (a process for the treatment). After conducting postmortem examina-tion, the doctor rendered following opinion:-- Opinion. "All injuries were ante mortal in nature. Injuries Nos.1 and 2 were caused by sharp edged heavy weapon leading to fractured skull, membranes injured, brain matter injured causing infra cranial hemorrhage leading to cardio respiratory arrest and death. Injuries Nos.1 and 2 were sufficient to cause death in the ordinary course of nature. "The probable time between injuries and death was 10 to 15 hours and that of between death and postmortem was about 6 hours." "Ex.PA is the correct carbon copy of postmortem report and Ex.PA/1-2 is pictorial diagram of injuries." The statements of remaining prosecution witnesses are formal in nature.

9. On 07.11.2012 and 18.04.2012, the learned Deputy District Public Prosecutor gave up Muhammad Shahbaz and Safdar Hussain PWs being un-necessary and closed the prosecution evidence on 03.12.2012 after tendering the reports of Chemical Examiner Punjab, Lahore as well as Serologist (Ex.PM and Ex.PN).

10. The appellant was also examined in terms of section 342, Cr.P.C., wherein he opted to lead defence evidence but refused to appear as his own witness in disproof of the allegations levelled against him. In response to a particular question why this case was against him and why PWs had deposed against him, Ghulam Abbas (the appellant) made following deposition:-- "The deceased was a vagabond and notorious person against whom various complaints were there for agitating the modesty of women and he also belonged to a very dangerous and desperate group of the town. He was injured or sustained injuries after scaling over the wall for these immoral pursuits. I have been made escape goat in this case. The so-called witnesses were never present at the alleged place of occurrence. They are closely related inter-se. None from the locality turned up there to support their version. The injured himself along with his Phuphi Sallah Khatun went to the police station without being accompanied by the complainant or anyone else before his coming unconscious. He narrated some different story which was later on twisted by the complainant and the PWs and we both were falsely implicated in this case."

11. The learned trial court after evaluating the evidence available on record in the light of arguments advanced from both sides, found the prosecution version proved beyond any shadow of reasonable doubt, resulting into conviction of the appellant in the afore stated terms.

12. I have heard the arguments advanced by the learned counsel for the appellant as well as learned Deputy Prosecutor General and minutely perused the record available on the file.

13. The occurrence had taken place on 10-11-2010 at 4.00 p.m. in the area of village Katha Saghral situated within the jurisdiction of Police Station Katha Saghral, District Khushab which is at a distance of one (1) kilometer from the place of occurrence. FIR (Ex.PD) was got registered on the oral statement of Ghulam Sher (PW-8)-the complainant on 10-11-2011 at 04.20 p.m. and Fayyaz (then injured) was referred to the Civil Hospital, Khushab through rapt No. 12 dated 10-11-2011 (Exh.PE) under the escort of Muhammad Safdar 473/C. Muhammad Saleem, ASI (PW-5) deposed during cross-examination that, "It is correct that Fiaz injured himself turned up in the police station in an injured condition along with others on a rickshaw--" Whereas Muhammad Khan, ASI (PW-11) deposed during examination-in-chief that, "

On the same day I was present at Khan Petroleum Katha Saghral in connection with search of accused that Safdar Iqbal constable handed over to me MLC of injured Muhammad Fayyaz. It also came into my knowledge that the injured was referred to Civil Hospital, Sargodha. I contacted with complainant who disclosed that he was further referred to Allied Hospital, Faisalabad

" But Ghulam Sher (PW-8) the complainant did not depose that Muhammad Fayyaz-deceased was referred to Allied Hospital, Faisalabad. Rather he (PW-8) deposed during examination-in-chief that, "

Fayyaz died in the hospital on 11.11.2011 as a result of said injury." Whereas, Muhammad Khan, A.S.I. (PW-11) deposed during examination-in-chief that, "

On 11.11.2011 at about 4.00 A.M., I received information that Muhammad Fayyaz has died

" This Court has also noted that postmortem examination was conducted by Dr. Syed Fakhar Abbas (PW-1) at 08:00 a.m. on 11-11-2011. The probable time lapse between injury and death was within 10 to 15 hours whereas between death and postmortem was 06 hours. As per postmortem examination report (Exh.PA) death took place at 02:00 a.m. on 11.11.2011 and dead body was brought to hospital at 06:00 a.m. on 11.11.2011, which would mean that the occurrence could have taken place at any time and not at the time which complainant had claimed. This aspect of the matter is sufficient to cast doubt about the authenticity of the FIR. No doubt delay in postmortem alone is not fatal to the prosecution case but when this court considered it with the other evidence, available on the record along with post mortem report (Ex.PA), they do influence the mind of the Court and leave the impression that there had been some wrangling about the time of registration of criminal case. This creates serious doubt about the genuineness of the prosecution story including presence of the complainant at the scene of occurrence. It is clear from the deposition of Dr. Syed Fakhar Abbas (PW-1). Syed Fakhar Abbas (PW-1) deposed during cross-examination that, "The application for conducting postmortem examination and inquest report were signed by me." Whereas as per inquest report (Exh.PL) the time and date of receiving information of death was mentioned in the column No. 3 at 4.30 a.m. on 11-11-2011. All above said facts create doubt about the time of death of the deceased-Muhammad Fiaz and when the complainant reported the incident to the police. Dost Muhammad S.I. (PW-12) the investigating officer deposed that, "

On 11.11.2011, I was posted as S.I. in Police Station Katha Saghral. Station House Officer of the police station handed over to me the case for investigation on the same day. Where after I proceeded to Civil Hospital, Khushab where dead body of Muhammad Fayyaz was lying. I prepared injury statement Ex.PE and inquest report Ex.PL and handed over dead body to Amjad Hussain constable for postmortem examination

" Muhammad Saleem, ASI (PW-5) has stated that he chalked the FIR (Exh.PD) on 10-11-2011. So, as per prosecution case inquest report (Exh.PL) is being prepared after lodging of FIR (Exh.PD). But in the inquest Report (Exh.PL) there is no mention of description of FIR. Absence of the detailed description of the FIR in the Inquest Report (Exh.PL), out rightly suggests that FIR (Exh.PD ) was not in existence at the-time inquest report in this case was prepared. These circumstances to my mind go to suggest that the FIR was ante time. This also shows that inquest report of the dead body of Muhammad Fiaz was not prepared at the time it is alleged to have been recorded. This also created doubt about the time of occurrence. When these omissions are to be appreciated in the light of the delay in conducting post mortem examination on the dead body of Muhammad Fiaz, it casts serious doubt and also leads to the conclusion that the FIR was recorded with a delay and the FIR had not been recorded at the time at which it is claimed to have been recorded. Considering all these facts, I have no hesitation in coming to the conclusion that the prosecution has not been able to prove on record that the incident was reported at the time at which, it was claimed to have been recorded and witnesses were present at the place of occurrence. The absence of the description of FIR and details of the documents in the inquest report may be indicative that the FIR was not registered till the inquest report was prepared and the FIR was recorded later on after due deliberations and consultation. Besides Muhammad Khan, ASI (PW-11) investigating officer prepared recovery memo of cotton blood stained (Exh.PG) and un-scaled site plan (Exh.PK) on 10.11.2011 and Dost Muhammad, S.I. (PW-12)-the investigating officer prepared recovery memo of last worn clothes of the deceased (Exh.PM) on 11-11-2011 and in these documents name of the accused was not asserted rather space for the name of accused was left blank i.e. "_________ " These are circumstances which threw considerable doubt on the evidence of Ghulam Sher (PW-8) the complainant and Shah Muhammad, (PW-9), eye-witnesses, relating to the time of occurrence, time of death of Muhammad Fiaz, time of reporting the incident and presence of the witnesses at the place of occurrence. Looking to these facts, this Court is of the opinion that true genesis of the occurrence has been withheld by the prosecution. Therefore, possibility of false implication of the appellant in the alleged crime cannot be ruled out and in my opinion, the prosecution has failed to bring home the charges framed against the appellant.

14. There is no independent piece of evidence to corroborate the evidence of Ghulam Sher (PW-8)-the complainant and Shah Muhammad (PW-9), eye-witnesses in this case. Admittedly, Ghulam Sher (PW-8)-the complainant and Shah Muhammad (PW-9), eye-witnesses are the chance witnesses. Ghulam Sher (PW-8) the complainant deposed during cross-examination that, "

Fayyaz was my Mamoon-zad. The name of his father is Muhammad Hayat. Mst. Sallah Khatun is real sister of Muhammad Hayat and is my mother. Mst. Sakina is real sister of Fayyaz deceased and is wife of Shah Muhammad PW. Shah Muhammad PW resides at Dera known as Bhanjay Wala. Dera. The said dera might be at a distance of 5/6 kilometers from Katha Saghral. Shah Muhammad is used to work at the mine of Karam Bakhsh. Volunteered he also used to work other labour work. Fayyaz also works in the same mine-The distance of mines of Karam Bakhsh might be 50 kilometers from Katha Saghral

I am also not resident of Mohallah Dhoolanwala--" Shah Muhammad (PW-9) deposed during cross-examination that,"

I used to work in the mines of Karam Bakhsh which is at a distance of 15/20 kilometers from Katha Saghral. I am residing at Dena Bhajnay Wala. Volunteered said dera is situated in Katha Saghral

" Muhammad Saeed (PW-6) Draftsman deposed during cross-examination that, "

It is correct that neither the complainant nor any PW has ever told that as to why they were available at the place of occurrence. It is correct that the streets over there at the place of occurrence are quite narrow and may be about 5 feet in width. It is correct that neither the complainant nor PWs had told me that as to why the deceased was there at the place of occurrence

" The deposition of the prosecution witnesses shows that Ghulam Sher (PW-8) the complainant and Shah Muhammad (PW-9), eye-witnesses are the chance witnesses. In the instant case, the prosecution witnesses are not only related inter-se and also with deceased but have motive to falsely implicate the accused for the above stated reason.

15. The motive set up by the prosecution in the FIR (Exh.PD) and deposed about it by the complainant-Ghulam Sher (PW-8) have been found by this court to have remained un-proved. The prosecution case in this regard was vague and can hardly inspire confidence. Ghulam Sher (PW-8)-the complainant deposed during examination-in-chief that, "

Some period prior to the occurrence Fayyaz deceased. quarreled with Ghulam Abbas accused. They grappled and Fayyaz deceased slapped Ghulam Abbas. Both the accused Ghulam Abbas and Rashid Ahmad committed murder of Fayyaz deceased on that account

" Whereas, during cross-examination, Ghulam Sher (PW-8)-the complainant deposed that, "

I have not witnessed the motive occurrence. Volunteered Abbas accused submitted application to police and it is incorrect to suggest that my volunteer part is against facts. No FIR was registered in respect of motive occurrence. Volunteered motive occurrence was compromised

" Dost Muhammad, S.I. (PW-12)- investigating officer deposed during cross-examination that, "I went through FIR after I was handed over investigation of this case. The detail of motive incident was disclosed before me and I also reduced it into writing during my investigation. I have mentioned it in case diary No.5 dated 18.11.2011. The detail of motive was not described by complainant or his witnesses whereas it was described by the accused

" There is no clear evidence as to the nature of quarrel took place between the deceased and accused, time of quarrel and witnesses of quarrel. In the circumstances, I, cannot avoid the conclusion that the motive, as alleged, was an afterthought and has not been proved by any credible evidence. Reliance is placed on the judgment of the Hon'ble Supreme Court of Pakistan titled as "Mst. Sughra Begum and another v. Qaiser Pervez and others" (2015 SCMR 1142).

16. As far as the recovery of specific "hatchet" (P-1), which had allegedly been recovered from the appellant is concerned, I may mention here that "hatchet" (P-1), was recovered on 20-11-2011 i.e. after ten days of the alleged occurrence. As per FIR (Ex.PD), the accused after the incident ran away. However, both prosecution witnesses i.e. Ghulam Sher (PW-8) and Shah Muhammad (PW-9) deposed in their court statements that the accused persons again entered their house. Ghulam Sher (PW-8) deposed during cross-examination that, "

I have also not mentioned that the accused persons after the occurrence entered into the house

" It creates doubt about the recovery proceedings. Even otherwise, it does not appeal to reason that the accused might have kept "hatchet" (P-1) with him intact in order to produce it before the Investigating Officer on his arrest. He cannot be expected to keep the "hatchet" (P-1) in the chhapar of cattle in his house for a long period, when he could have easily disposed of the same. Reliance is placed on the judgment of Hon'ble Supreme Court of Pakistan in the case of "Bashir Ahmed alias Mannu v. The State" (1996 SCMR 308) wherein the learned Apex Court had disbelieved the prosecution evidence on this count.

17. Admittedly, co-accused-Rashid Ahmad alias Ahmad Nawaz of the appellant has been acquitted by the learned trial court on the same set of the evidence. There is no challenge to the acquittal of co-accused-Rashid Ahmad alias Ahmad Nawaz. It is settled principle of law that if evidence of the prosecution is disbelieved qua co-accused, it cannot be believed qua the other in the absence of very strong corroboration. Reliance is placed on the case law reported as "Akhtar Ali and others v. The State" (2008 SCMR 6). It has also been held by the Hon'ble Supreme Court of Pakistan "Sarfraz alias Sappi and 2 others v. The State" (2000 SCMR 1758) and "Iftikhar Hussain and others v. The State" (2004 SCMR 1185) that:- "That eye-witnesses who are disbelieved against some accused persons attributed active and effective roles cannot be believed against the other accused persons."

18. The ocular account produced by the prosecution is not worthy of credence and the same cannot be believed against the appellant. The accused is not expected to prove his innocence to the hilt. If prosecution story is doubtful, benefit of doubt must go to the accused. Moreover, delay in lodging FIR, non-recovery of crime weapon, material contradictions in the statements of the witnesses and medical evidence are the circumstances, which create doubt in the authenticity of the prosecution version. In this backdrop, it can safely be held that the prosecution has badly failed to bring home the guilt of the accused/appellant and conviction passed by the learned trial court in the circumstances is against all canons of law recognized for the dispensation of criminal justice. As per dictates of law, the benefit of every doubt is to be extended in favour of the accused/ appellant. 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 had held that even single circumstance creating reasonable doubts in a prudent mind about the guilt of accused makes him entitled to its benefit, not as a matter of grace and concession, but as a matter of right.

19. Consequently, I accept in toto Criminal Appeal No. 45-J of 2013 filed by Ghulam Abbas, appellant, as a result whereof conviction and sentence recorded by the learned trial court vide judgment dated 17.01.2013 is set aside and the appellant-Ghulam Abbas is ordered to be acquitted of the charge in case FIR No.187-2011, dated 10.11.2011, offence under sections 302, 34, P.P.C., registered at Police Station, Katha Saghral, District Khushab. The appellant-Ghulam Abbas son of Wali Muhammad, Caste Awan, resident of Katha Saghral, Tehsil and District, Khushab, is directed to be released forthwith, if not required in any other case.

20. So far as Criminal Revision No.235 of 2013 seeking enhancement of sentence of respondent No.1 is concerned, for the above-stated reasons, the same has no weight, which is accordingly dismissed. JK/G-10/L Order accordingly.