2017 PLP 366 (YLRN)

SHAHID HAMEED DAR, J.

This Criminal Appeal is directed against judgment, dated 31.1.2006 of the learned trial court (Additional Sessions Judge, Sargodha), whereby it convicted Muhammad Arshad alias Achhoo (appellant) under section 302(b), P.P.C. and sentenced him to imprisonment for life with the direction to pay a sum of Rs.50,000/- to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C., in default whereof to further undergo simple imprisonment for six months. The benefit of section 382-B, Cr.P.C. was, however extended to him. His co-accused Muhammad Iqbal was declared proclaimed-offender and perpetual warrants of arrest were issued against him.

2. The occurrence took place, at 10.30 p.m. on 7.7.2002, within the revenue estate of Jura Sakesar, situated at a distance of 24 kilometers towards north from police station Jhal Chakian (Sargodha). It was reported by Muhammad Nawaz (complainant/P.W.4) to Muhammad Afzal SI/SHO (P.W.10) at the said police station, who drew up FIR (Exh.PA/1), at 11.00 p.m., the same day.

3. Succinctly, the prosecution case as per FIR (Exh.PA/1) is that complainant (P.W.4) and his paternal nephew Muhammad Riaz went to Sargodha in connection with some personal affair; they set-off for their village from Sargodha on 7.7.2002; on their way back, they reached Sakesar, wherefrom they took a cycle and pedalled it towards their dera Chah Allah Bakhsh; Muhammad Riaz operated the cycle, whereas he sat behind him; it was at about 10.30 p.m., when they reached near the orchard of Mumtaz Lak; all of a sudden, two youthful persons, with medium height, each clad in Shalwar and Qameez, holding a .12-bore double barrel gun and a chhura intercepted them; they grappled with Muhammad Riaz, who resisted the onslaught; the man with gun fired straight at Muhammad Riaz, which landed at his inguinal area; Muhammad Riaz fell onto the ground badly wounded; he (complainant) raised alarm, which attracted Khan Muhammad (P.W.5) and Atta Muhammad PW (not produced) to the spot and they saw the occurrence; Muhammad Riaz succumbed to the injuries at the spot; the unknown accused took to their heels and disappeared. Leaving his companions at the spot, he left for the police station and got lodged FIR (Exh.PA/1) against the unknown accused persons.

4. Dr. Muhammad Sarfraz (P.W.7) performed autopsy on the dead body of Muhammad Riaz, at 7.00 a.m. on 8.7.2002. He vide postmortem examination report (Exh.PD) observed following injuries thereon:-

1. Multiple fire arm wounds of entry in an area of 7 cm x 5 cm (one big hole, size 3 cm x 3 cm) surrounded by six small holes each 3 cm x 4 cm, on outer part of left inguinal (groin)-region, 8-1/2 cm below from the umbilicus and 4 cm away from pubic symphoysis. Margins of the wounds were inverted. There was no blackening on the wound. The medical officer opined that death in this case was due to injury No.1, which caused excessive haemorrhage and shock. The probable time that elapsed between injuries band death was "within 30 minutes" and that elapsed between death and postmortem examination was within twenty hours. 6(sic). Initially, Muhammad Afzal Inspector (P.W.10) carried out the investigation. He took into possession blood stained earth from the place of occurrence vide seizure memo. Exh.PB; prepared injury statement (Exh.PE) and inquest report (Exh.PF) of the dead body of Muhammad Riaz deceased and despatched it to the mortuary for autopsy under the escort of Mukhtar Ahmad C/893 (P.W.2); prepared visual site plan (Exh.PJ) of the place of occurrence; he got prepared site-plan in-scale in duplicate (Exh.PH and Exh.PH/1) from Muhammad Shah Patwari (P.W.9). Thereafter, investigation was entrusted to Muhammad Iqbal Khan SI (P.W.8) on 29.5.2004, who searched for the accused, but to no avail. Muhammad Nawaz (complainant/P.W.4), Khan Muhammad (P.W.5) and Atta Muhammad PW (not produced) visited the police station on 10.6.2004 where they identified Muhammad Arshad (appellant), already confined there in connection with case FIR No.422, dated 11.7.2003, under section 302/ 394, P.P.C., registered at police station Jhal Chakian, as one of the accused, who being armed with 12-bore gun had fired at the deceased; he recorded supplementary statement of the complainant and formally arrested Muhammad Arshad (appellant) in the case-in-hand, who during interrogation led to the recovery of 12-bore gun (P4) along with two live cartridges (P5/1-2), which was seized vide memo Exh.PC. On completion of investigation, he prepared report under section 173, Cr.P.C. and submitted it before the learned trial court for trial of the accused in accordance with the law.

7. To prove its case, the prosecution produced ten witnesses. Dr.Muhammad Sarfraz proved the postmortem examination report (Exh.PD) of the deceased. Muhammad Nawaz complainant (P.W.4), Khan Muhammad (P.W.5) furnished the ocular account of the occurrence. They claimed to have identified the appellant Muhammad Arshad alias Achhoo, when he was in police lock-up in another case, mentioned hereinabove, as the one who fired at the deceased by means of his 12-bore gun. Muhammad Riaz (P.W.6) deposed in his testimony that the appellant appeared before him and his co-witness Muhammad Ramzan (not produced) and confessed his guilt by saying that he while armed with .12-bore gun and his co-accused Iqbal Kobhar, armed with Chhura had murdered Muhammad Riaz in order to commit dacoity. Muhammad Afzal Inspector (P.W.10) and Muhammad Iqbal Khan SI (P.W.8) are the investigating officers, who rendered details of the investigation conducted by them. The rest of the evidence is more or less of formal nature.

8. When examined under section 342 Cr.P.C., Muhammad Arshad alias Achhoo (appellant) denied all the incriminating circumstances and in reply to question No.8, "Why this case against you and why have the PWs deposed against you?" he stated as under:-- "I was the servant of Mahr Dastageer Lak and I took one lac rupees as loan from him. Due to some disputes I ran away from the dera of Mahr Dastageer Lak. In this enmity Mahr Dastageer Lak and Mahr Zafar Lak got me involved in this false case through complainant and eye witnesses." He neither opted to make statement on oath under section 340(2) Cr.P.C. nor opted to adduce evidence in defence. On culmination of trial, the learned trial court pronounced verdict of guilt against the appellant, in mentioned terms.

9. Learned counsel for the appellant has submitted that it is a case of no evidence against the appellant, as none of the prosecution witnesses could render worthwhile connecting evidence against him; the occurrence of murder of Muhammad Riaz took place in the dark hours of the night at a deserted place when no one was anywhere near around him; the complainant, Muhammad Nawaz, who was real paternal uncle of the deceased failed to nominate anyone in the FIR as accused and he alleged therein that two unknown persons who individually held a .12-bore gun and a chhura with them pounced upon his nephew and one of them fired at and murdered him at the spot; the complainant Muhammad Nawaz (P.W.4) and Khan Muhammad (P.W.5), the real brother of the deceased, made dishonest improvements in their testimonies especially as to carrying a torch by Muhammad Nawaz (complainant) at the relevant time of the occurrence, in the light of which they allegedly saw the unknown accused; no test identification parade qua the appellant has been held in this case and mode of his identification by the PWs at the police station Jhal Chakian (Sargodha) was a mere joke in the eye of law; the recovery of .12-bore gun (P4) and two live cartridges (P5/1-2) is equally meaningless as investigating officer failed to collect any crime empties during spot inspection; the ocular account is filled with many inconsistencies and self-contradictions, which reduced its believability to nothing; the impugned judgment has been passed injudiciously and gratuitously, therefore, it may be set-aside.

10. Conversely, learned Deputy District Public Prosecutor has contended that the prosecution ably discharged the burden to prove its case against the appellant beyond all shadows of doubt during the course of the trial; the identification of the appellant by the PWs at the police station is a strong incriminating evidence which together with recovery of the crime weapon (P-4) and the medical evidence make it a fully proven case against the appellant; the impugned judgment is based on sound reasons, hence it may be upheld at the cost of the titled appeal.

11. Learned counsel for the parties have been heard at length and relevant record has been gone into with the able assistance of the learned counsel for the parties.

12. Plainly speaking, the prosecution case as stated by Muhammad Nawaz (complainant/PW-4) is that he and his youthful paternal nephew Muhammad Riaz aged 28/29 had been intercepted at about 10.30 p.m. on 07.07.2002 near an orchard, belonging to Mumtaz Lak by two unknown armed men, one holding a chhura and the other a .12-bore gun, who grappled with Muhammad Riaz (deceased) and they literally wrestled with each other, before the man with the gun made a fire shot, after Muhammad Riaz refused to meet their demand of surrendering his belongings to them, which hit his groin-area due to which he fell down and died instantaneously. It was a bloody occurrence, which had been committed by two unknown persons, whose names or particulars could not be mentioned in the FIR (Exh.PA/1) by the complainant and he merely branded them as unknown accused therein.

13. The prosecution case mainly revolves around the statements of the eyewitnesses, Muhammad Nawaz (complainant/PW-4) and Khan Muhammad (P.W.5) besides Muhammad Riaz (P.W.6), a witness of extra-judicial confession of the accused-appellant, the medical evidence tendered by Dr. Muhammad Sarfraz (P.W.7) and Muhammad Iqbal Khan SI/IO (P.W.8). The police certainly showed ineptness and incompetence during the investigation of this case, as they instead of collecting some legal incriminating evidence against the accused, preferred to cut-short the process of investigation by devising a novel way of settling the question of identification of the accused, when they persuaded the complainant and his co-witnesses to claim that they had identified Muhammad Arshad alias Achhoo in the lockup of police station Jhal Chakian on 10.6.2004. It was certainly a bad joke with the prosecution case, cut by the police without ever perceiving as to how detrimental could it prove, one day, to it. The eyewitnesses made discrepant and false claims, as to having identified the accused in the police lockup, which fact may easily be gathered from their testimonies. Muhammad Nawaz (P.W.4) said in his testimony that he did not know Muhammad Arshad alias Achhoo (appellant) before the occurrence and he identified him at police station Jhal Chakian's lockup about one year and 10-1/2 months thereafter by pointing it to the investigating officer, Muhammad Iqbal Khan SI (P.W.8) that it was he, who had murdered his nephew Muhammad Riaz by firing at him with his .12-bore gun. He plainly admitted that he did not take part in any proper identification parade in the jail nor he picked up the accused from a group of persons, looking alike. He felt to have done something legal when he contended in his testimony that the accused had been identified in the police lockup, for the first time by Khan Muhammad alone and then he did so, but fifteen days thereafter. Khan Muhammad (P.W.5) claimed to have identified the accused-appellant in the lockup of the said police station about one year and eleven months after the occurrence of murder and he was flanked by Muhammad Nawaz (complainant) and Atta Muhammad (PW not produced) then. He also admitted it as correct that he did not participate in any properly held identification parade of the accused. Muhammad Iqbal Khan SI (P.W.8) is the actual sinner who, through his unwisely scheme of fabricating evidence of so-called identification of the accused, irreparably damaged the prosecution case. He rather took pride in it when he made the deposition that Khan Muhammad (P.W.5), Atta Muhammad PW (not produced) and Muhammad Nawaz (P.W.4) came to the police station on 10.06.2004 and they identified (jointly) Muhammad Arshad accused/appellant as the murderer of Muhammad Riaz, with his .12-bore gun. He did not offer any explanation in his testimony as to why didn't he go for holding test identification parade of the accused. This lacuna in the prosecution case may easily be termed as fatal to it by all means.

14. The complainant certainly knowing, what did it convey that the alleged occurrence took place at 10.30 p.m., introduced factum of holding a torch by him in his hand at the relevant time of the occurrence, in the light of which he claimed to have seen and identified the accused. The same sort of craftsmanship was shown by Khan Muhammad (P.W.5) when he too made mention of a torch in the hand of Muhammad Nawaz, in the light of which he, as claimed, saw the accused-appellant firing at his brother Muhammad Riaz, who died then and there. They both (P.W.4 & P.W.5) were confronted with their previous statements, in answer to which Muhammad Nawaz stuck to the stance and proven wrong by the contents of Exh.PA/1, but Khan Muhammad tamely admitted that he had not recorded in his statement before the police about the factum of torch. He admitted that he heard the fire shot/noise from a distance of 20/25 karams and when he reached near his fallen brother, the accused persons had fled the spot. The complainant contended in his testimony that he showed the suspicion, qua murder of his nephew, against Naveed son of Azam Baloka and Mumtaz son of Nawaz Mochi by telling the investigating officer on 08.11.2002 that they were the culprits of this case. He further said that he persistently believed that Riaz had been murdered by both Naveed and Mumtaz. He also mentioned that three trackers Nawaz, Dost Muhammad and Azhar were called by the police but they failed to track-down the accused. Similar kind of deposition in this regard was made by Khan Muhammad (P.W.5). It appears from the statement of the complainant that the FIR-case had been filed once, as untraced. The accumulative effect of testimonies of the eyewitnesses is that they had not witnessed the occurrence and if at all they had been there at the relevant time, they could not see anyone in the intense darkness, committing the murder of Muhammad Riaz. Their statements inherently lack the touch of spontaneity and believability. Being a hollow and self-discrepant ocular account, it is discarded as untrustworthy.

15. So far as evidence of extra judicial confession rendered by Muhammad Riaz son of Muhammad Sher (P.W.6) is concerned, he hardly said anything worthwhile in his testimony. He did not know the appellant before he made maiden appearance before him for admitting his guilt of murdering Muhammad Riaz. He admitted in his statement that he was a petty labourer who earned the livelihood by visiting places. He was not a person of prominence nor he ever participated in any election. He had not been appointed the head of any punchiyat either. Being a stranger and an ordinary labourer, having no social impact on the society, how could he help the appellant in his time of trouble, is a question, the answer whereto, does not flow from the evidence available on the record. He did not disclose as to what exactly he was to the complainant or the deceased and how could he be helpful to the accused. He did not make any effort to overpower the accused, when he appeared before him empty handed, nor he timely informed the police in this regard. He rather leisurely asked him to come back after seven days. There was no earthly reason for the appellant to visit such a socially poor person to admit his guilt at a time, when none in the world knew about his involvement in the murder of Muhammad Riaz. He deposed about in his testimony that he informed Muhammad Nawaz (complainant), Khan Muhammad and Atta Muhammad PWs about the visit and admission of guilt of the accused but they (P.W.4 and P.W.5) did not say a word in this regard when they tendered evidence on their turn. He admitted it as correct that the town was abuzz with the rumors that Muhammad Riaz had been murdered by two unknown persons. This witness failed to make any impression whatsoever and his statement completely looked a pile of lies. No importance can be attached with it being a superfluous product.

16. The medical evidence as tendered by Dr. Muhammad Sarfraz (P.W.7) merely tells that the dead body of the deceased bore multiple firearm wounds in an area of 7 cm x 5 cm with a central big hole measuring 3 cm x 3 cm on the outer part of left inguinal/groin-region, 8-1/2 cm below the umbilicus, which were found fatal by him, then autopsy-performer. The postmortem examination report (Exh.PD) entails a detail of features of the dissection made. The medical evidence may furnish the information, as to bodily injuries of a living or dead person, the effect thereof, the weapon(s) used for inflicting such injuries and the other allied details, but it cannot identify the author of the injuries. It is always corroboratory in nature and it may strengthen a case further, which hinged on some believable/conclusive ocular account or the circumstantial evidence. The testimony of medical officer (PW-7) cannot inject life in this case, the columns (ocular account) whereof already stood dismantled.

17. The evidence of recovery of .12-bore double barrel gun (P4) with two live cartridges (P5/1-2) on 11.06.2004 through memo of recovery (Exh.PC) at the instance of the appellant is equally worthless, albeit prosecution produced Khan Muhammad (P.W.5) and Muhammad Iqbal Khan SI (P.W.8) in this context. This weapon was not sent to the office of Forensic Science Laboratory, probably for the reason that the investigating officer could not collect any crime empty of .12-bore during spot inspection. How can this weapon be linked with the murder-in-issue is a crucial question which has gone unanswered during trial. This firearm, without report of the ballistic-expert, cannot be believed to have been used in the occurrence. Being it an immaterial piece of evidence, it cannot be read against the appellant, hence swept-aside.

18. The appellant contended in his statement under section 342, Cr.P.C. that he being defaulter of loan of Rs.1,00,000/-, which he borrowed from Mehr Dastagir Lak, had been falsely involved in this case at the instance of the loaner. It did not look more than a gossip as it is not based on any evidence whatsoever, hence flushed, down the drain.

19. The prosecution case is full of fallacies, self-contradictions and inconsistencies, which lead to only one irresistible conclusion that the prosecution fell miles short of their bounden duty of proving the guilt of the appellant beyond any reasonable shadow of doubt. The impugned judgment has been passed merely on conjectures and surmises, without any regard to the settled principles of dispensation of criminal justice, hence, it is liable to be annulled. Done accordingly.

20. The conviction and sentence of the appellant is set-aside and he is acquitted of the charge. He shall be released from the prison forthwith if not needed in connection with any other case.

21. The appeal stands allowed. YN/M-262/L Order accordingly.