2016 PLP 185 (YLRN)

S. 302(b)

Anti-Terrorism Act (XXVII of 1997), S. 7(a)

Qatl-i-amd

Appreciation of evidence

Benefit of doubt

Crime empty, absence of

No eye-witness existed who had seen incident of commission of murder and no witness was brought on record who might have seen accused and his co-accused with deceased immediate before his receipt of fire shot or thereafter

Trial Court convicted accused and sentenced him to imprisonment for life

Validity

Sole dying statement of deceased remained in field and Trial Court intelligibly did not discuss it because alleged principal accused was yet to be tried being a proclaimed offender

Accused made a fire shot at deceased which passed nearby him but thereafter he did not repeat it

No crime empty was taken into possession from the spot and in such way recovery of alleged pistol effected from accused remained featherweight and inconsequential

High Court set aside conviction and sentence awarded to the accused as prosecution failed to prove its case against him beyond shadow of reasonable doubt

Appeal was allowed in circumstances. [Paras. 12 and 13 of the judgment] Altaf ur Rehman Khan for the Complainant. Iftikhar ul Haq Ch., Addl. P.G. for the State. JUDGMENT i) Life imprisonment under section 302(b)/34, P.P.C. as Tazir with payment of Rs.50,000/- as compensation to the legal heirs of deceased Ghulam Mustafa under section 544-A, Cr.P.C. and in default whereof to further undergo S.I. for six months. He was also extended the benefit of section 382-B, Cr.P.C. Similarly Criminal Revision No.691 of 2007 filed by Muhammad Riaz complainant against respondent/convict namely Muhammad Faisal for enhancement of his quantum of sentences shall also be disposed of by this single judgment.

2. The woeful story as unveiled by complainant Muhammad Riaz (PW.02) in FIR (Exh.PB/1) is that he is resident of Kot Khewan Mal P.S. Wahndo. His daughter was married to Ghulam Mustafa (deceased) in Gakhar. On 2.1.2006 he had come to see his daughter and son-in-law. On the same day at about 6.00 p.m. he along with Muhammad Akram (PW.3) and Ghulam Mustafa (deceased) was present on Insaaf Non Shop, opposite Police Sation Gakhar, when appellant Faisal and co-accused Tahir alias Peppu alias Gogi (since P.O.) came on the Tandoor/clay oven and asked Ghulam Mustafa to drop them at a cinema on his motorcycle whereupon Ghulam Mustafa boarded appellant Faisal and Tahir alias Peppu (since P.O) on his motorcycle Yamaha 100 CC GAP/723 and left for cinema. For a considerable time when Ghulam Mustafa did not return, the complainant along with Muhammad Akram (PW.3), brother of Ghulam Mustafa went after him on another motorcycle on G.T. Road. While searching them when they reached opposite Asif Flour Mills on G.T. Road, they saw that a number of persons assembled. Ghulam Mustafa had received fire shot on his abdomen who was lying on the ground in an injured condition. The complainant and Muhammad Akram rescued him to Civil Hospital Gujranwala where Ghulam Mustafa was admitted and MLC was issued. Because of parlous condition of Ghulam Mustafa throughout the night and day, the complainant was worried and could not make report in the police station. On 3.1.2006 Ghulam Mustafa regained his senses who told that Faisal appellant and Tahir (since P.O) had taken him near Asif Flour Mills under a pretext and started beating him; that Ghulam Mustafa ran to save his life then Faisal and Tahir along with unknown made fires on Ghulam Mustafa with their pistols and fire made by Tahir accused (since P.O) landed on the abdomen of Ghulam Mustafa whereas fire made by Faisal passed nearby him; that Faisal and Tahir along with two others in order to commit murder of Ghulam Mustafa had deceitfully brought him opposite Asif Flour Mills G.T. Road and injured him by making fire who is fighting for his life in the hospital.

2. On 23.1.2006 complainant moved supplementary application Exh.PL and nominated Umar Farooq son of Muhammad Nazir and Muhammad Nazir as accused who were mentioned as unknown persons in application/complaint Exh.PB. On 25.1.2006 Ghulam Mustafa succumbed to the injury whereupon sections 302/34, P.P.C. was substituted for section 324/34, P.P.C.

3. After the usual investigation report under section 173, Cr.P.C. was prepared and submitted before the learned trial court by placing the names of appellant in column No.3 while names of co-accused Tahir (since P.O) and Muhammad Nazir and Umar Farooq were mentioned in column No.2 of the said report and thereafter they were summoned to face the trial.

4. Learned trial court after observing all the pre-trial codal formalities, indicted the appellants and his co-accused (since acquitted) to which they did not plead guilty and claimed trial. Thereafter, the prosecution was directed to lead evidence in order to substantiate the charge.

5. The prosecution in order to prove its case produced 13 witnesses in all. INJURIES: i) A firearm lacerated wound of entry 1 cm x 1 cm, inverted margins on front of abdomen, epigastrium, 9 c, above the umbilicus at 10 O'clock position. ii) Surgical healed wound with soft scar, 15 cm extending from umbilicus up to the xyphi sternum with colostomy hole about 5 x 5 cm in the epigastrium in midline in the line scar. OPINION. After careful external and internal examination of the body I was of the opinion that death in this case had occurred due to irreversible haemorrhagic shock as a complication of injury No.1 which has injured various organs/tissues of the abdomen as mentioned above under the heading of dissection. The injury No.1 has been caused by some firearm weapon was ante mortem in nature and was sufficient to cause death. (all other i.e. injury No.2 is a surgical wound). Probable time that elapsed between injuries and death was 23 days according to hospital record and between death and post mortem was 2 to 3 hours. Exh.PA was the correct carbon copy of post mortem report whereas Exh.PA/1 was the pictorial diagrams of injuries, the same bore his signatures.

6. Learned DDPP by tendering in evidence report of Chemical Examiner as Exh.PO and report of Forensic Science Laboratory Exh.PP vide his statement dated 04.5.2007 closed the prosecution case.

7. Thenceforth statement of the appellant was recorded under section 342, Cr.P.C. wherein he negated the charge and professed his innocence. He neither opted to make statement on oath as required under section 340(2), Cr.P.C. nor opted to produce defence evidence. "I have been falsely involved in this case. I remained employee of my co-accused Nazir and Umar Farooq for few days, before the alleged occurrence to whom the complainant party was inimical because of the party men of their opponents, so under that impression and suspicion, I have been roped in the alleged occurrence, the PWs are inter se related with each and interested one even otherwise their statements are full of contradictions based on perjury and also not claimed to be eye-witnesses".

8. On the conclusion of trial the appellant was convicted and sentenced as mentioned supra whereas his co-accused namely Muhammad Nazir and Umar Farooq were acquitted by the learned trial court. Hence, instant appeal as well as revision petition.

9. Learned counsel for the appellant has argued that though appellant was nominated in FIR Exh.PB/1 and recovery of 30 bore pistol has also been effected from him on 01.2.2006 vide memo Exh.PC but despite the fact that he has been attributed an ineffective fire and in absence of any crime empty from the spot, its report remains featherless. Further argued that in the dying declaration Exh.PK the deceased Ghulam Mustafa has not been attributed any effective role whereas co-accused Tahir alias Peppu alias Gogi (since P.O) was attributed an effective fire shot on the deceased and so much so the deceitful abduction of the appellant is concerned, the prosecution has not alleged the charge against the appellant under section 364, P.P.C., therefore, only the court has to confine upto the conviction under section 302, P.P.C. Lastly, it has been submitted that if the entire story is believed, even then the appellant may not be connected with the commission of murder of Ghulam Mustafa deceased, therefore, instant appeal may be accepted and appellant may be acquitted.

10. Learned Addl. P.G. assisted by learned counsel for the complaint has argued that through a deceptive attitude the appellant Faisal along with Tahir alias Gogi (since P.O) took along the deceased on his bike but thereafter both of them made fire shots with their 30 bore pistols but fire shot made by appellant went missed whereas of Tahir alias Gogo co-accused (since P.O) proved fatal and during investigation two more persons namely Muhammad Nazir and Umar Farooq were found to have participated in the commission of occurrence. Most important arguments according to learned counsel are that the deceased Ghulam Mustafa remained inpatient w.e.f. 2.1.2006 to 25.1.2006 till the date when he died and during this period he made a Dying Declaration Exh.PK in which he has specifically nominated the appellant along with his role and no reason exists to disbelieve the Dying Declaration especially in absence of any wrath or enmity on behalf of the complainant party and the deceased to falsely implicate the appellant and his co-accused (since P.O). Further submitted that statements of Muhammad Riaz, the complainant (PW.2) and Muhammad Akram (PW.3) are consistent inter se and persistent to the allegation that in their presence the deceased went along with the appellant and his co-accused, in this way, no reason exists to disbelieve the prosecution version and has prayed for dismissal of appeal.

11. Heard. Record perused.

12. Contrite incident took place on 02.1.2006 at about 6.00 PM when according to Muhammad Riaz, the complainant (PW.2)/father in law of deceased Ghulam Mustafa along with Muhammad Akram (PW.3) was present at Tandoor/clay oven shop where appellant Muhammad Faisal along with Tahir alias Gogi, the proclaimed offender, came and asked him to take him to cinema who on his own bike Yamaha 100 CC bearing No.723/GAP took them, till some reasonable time, the deceased did not return, consequently, on the following day, in the process of looking for him, they saw in front of Asif Flour Mills at G.T. Road, Gujranwala, some people had gathered alongside road, they attracted there and found Ghulam Mustafa still in an injured condition having sustained a fire shot on his belly. He was taken to Civil Hospital, Gujranwala on the same evening where he was medically examined at 7.50 PM and while inpatient breathed his last on 25.1.2006. Case was registered on 3.1.2006 at about 6.20 PM for the reasons explained by the complainant in his FIR (Exh.PB/1) that he remained busy in hospitalization of the injured/deceased. Case was registered firstly under section 324/34, P.P.C. but on the eve of death of the deceased, the said provisions of law were substituted by offence under section 302 P.P.C. One important feature of the case has been noticed that while being in the hospital, the injured made his statement under section 161, Cr.P.C. on 03.1.2006 Exh.PK. After having gone through the whole file, nothing has been explored as to the ocular testimony having seen the commission of murder except the statement of complainant Muhammad Riaz (PW.2) and Muhammad Akram (PW.3) who had only witnessed the incident of the departure of the deceased along with the appellant and his co-accused (since P.O), they by recording the dying declaration Exh.PK of moribund Ghulam Mustafa and thereafter his death, offence under section 302, P.P.C. was added. During the trial proceedings, no witness has been brought on record who might have seen the appellant and his co-accused near or around of the injured/deceased in any condition. The alleged motorcycle driven by the deceased was also not taken into possession and the record is silent where the same has gone, now in this way, the case chiefly can be divided into two parts viz: one is taking of the deceased by the appellant and his co-accused and the other is his death. FIR Exh.PB/l shows nothing about the intent of the accused persons that why they had asked the deceased to accompany them and perhaps for this reason, neither the I.O. who registered the case nor by the I.O. who investigated the case and even the learned trial court while making indictment did not bother to involve the application of section 364, P.P.C. Another very important feature of the case is that partway investigation two more accused persons namely Muhammad Nazir and Umar Farooq were implicated through a supplemental statement on 23.1.2006 but consequently the complainant resoluted in filing the private complaint wherein he has also not agitated for the application of section 364, P.P.C. It is pity of legal fraternity even inclusive of the Bench in not concentrating deeply to the facts of the case while framing of charges and tentative reliance has usually been placed upon the report submitted under section 173, Cr.P.C. whereas on this subject law is not only very much vivid but empowers the court to amend or alter the charge at any stage of the trial. Now statements of these two PWs absolutely do not connect the appellant with the commission of murder of the deceased being not eye-witnesses and even otherwise their statements do not constitute the evidence of last seen because concatenation with reference to time-lag in absence of motive and non-recovery of the motorcycle of the deceased and on the other hand, provisions of section 364, P.P.C. have never been invoked by the prosecution. Exploration of the record even otherwise does not evoke to this aspect of the case. Now come to the next episode of the case i.e. murder of Ghulam Mustafa without any fear of contradiction, it is described that no eye witness exists who had seen the incident of commission of murder and even no witness has been brought on record who might have seen the appellant and his co-accused with the deceased immediate before his receipt of fire shot or thereafter. Now the sole dying statement Exh.PK remains in the field, the court intelligibly does not discuss it because the alleged principal accused namely Tahir alias Gogi is yet to be tried being a proclaimed offender but in order to decide the instant appeal, it appears to be relevant to mention the only part goes against the appellant. He made a fire shot at the deceased which passed nearby him but thereafter the appellant did not repeat it. No crime empty was taken into possession from the spot and in this way, the recovery of the alleged pistol effected on 01.2.2006 to be discussed but remains featherweight and inconsequential. The court gets shock over the substandardness defectiveness of the investigation and latitudinarianism on the part of the investigating agency in collecting the evidence as well as recording the statement of injured-deceased and from the circumstances it may be construed to have designedly been done on part of the investigating agency. Ageless mythomanic idiosyncrasy of police has caused the court to indignation because the investigating officer remains uni-sapient to arrogance notwithstanding having gauntlets for the same: the investigating agency has not collected evidence in this case with heart and hand by burning the candle at both ends by keeping its own counsel notwithstanding blubbering of the aggrieved party, nevertheless, incorrigibility remains but this behaviour of the investigating agency is required to be baulked to apposition to appreciatory.

13. By evaluating the entire record, the court has come to the nub that prosecution has miserably failed to prove its case against the appellant beyond shadow of reasonable doubt, therefore, by allowing instant appeal, conviction and sentence of the appellant is set aside and he is acquitted of the charge imputed against him by extending him benefit of doubt. He is on bail after suspending his quantum of sentence on 24.1.2004. His surety stands discharged from his liability.

14. As far as Criminal Revision No.691 of 2007 filed by Muhammad Riaz complainant against respondent/convict namely Muhammad Faisal for enhancement of his quantum of sentence is concerned, for the reasons mentioned op-cit, instant criminal revision petition has lost its relevance and the same stands dismissed accordingly.

15. Before parting with this judgment, it would be appreciable that observations rendered in accepting the appeal shall remain inoperative for the case of absconder accused. Case property and record shall also be kept intact till his trial. MH/M-146/L Appeal allowed.