2022 PLP 168 (YLRN)

MUHAMMAD WAHEED KHAN, J.

This judgment shall dispose of Crl. Appeal No.131 of 2016/BWP filed by the appellants, namely, Fida Hussain, Ghulam Yaseen, Rab Nawaz and Ali Raza (against their convictions and sentences) and Cr. Revision No.65 of 2016 filed by the complainant Manzoor Ahmed for enhancement of sentences of the appellants. As both the matters have arisen out of the same judgment dated 29.02.2016 passed by the learned Addl. Sessions Judge, Khairpur Tamewali in case FIR No.158/2013 dated 08.11.2013 registered under section 302/34, P.P.C. at Police Station Anaytee, District Bahawalpur, whereby the appellants along with two others were cried and they were convicted and sentenced as under:-- Under section 302(b), P.P.C. awarded imprisonment for life to each with further direction that each convict shall pay Rs.5,00,000/- as compensation to the legal heirs of deceased, in default thereof, to further undergo six months simple imprisonment each. Benefit under section 382-B, Cr.P.C. was also extended to the convicts. Whereas, co-accused, namely, Haqnawaz and Shabbir Hussain were acquitted of the charge vide the same judgment by the learned trial Court.

2. Succinctly, facts of the case as narrated by Manzoor Hussain complainant (PW-2) in application (Ex-PA) submitted before the police for registration of case, are that on 08.11.2013 at 9:30 a.m. when he along with Shabbir Hussain (PW-3) his nephew and Mumtaz Hussain (given up PW), was available in his house, six accused persons on two motorcycles came to his house and called his son Altaf Hussain, who in response to their call, came out from the house. The complainant and the above said Shabbir Hussain and Mumtaz Hussain also followed Altaf Hussain to the outer gate of the house and witnessed the occurrence and in their view, the accused persons/appellants four in number made fire shots with pistols allegedly carried by them, fire shot of Rabnawaz (appellant) landed at the head of Altaf Hussain, fire shot of Fida Hussain (appellant) hit at his neck, Ghulam Yaseen (appellant) was ascribed firearm injury at right jaw of Altaf Hussain and fire shot allegedly made by Ali Raza landed towards the right side of the chest of the deceased, who fell down at the spot and succumbed to the wounds. Co-accused Haqnawaz (since acquitted) remained sitting on the motorcycle and an unknown accused later on nominated as Shabbir Hussain (since acquitted) also remained sitting on the second motorcycle. After the occurrence, all the accused persons made good their escape on their motorcycles. The assailants allegedly murdered the deceased Altaf Hussain in the backdrop of a motive that sons of Ghulam Mustafa and Ali Raza appellant, namely, Riaz alias Naja and Muhammad Arshad alias Arshi were arrested by the police on the disclosure/ Mukhbari of the deceased in two different criminal cases, hence, this case.

3. After registration of case, police investigated the same and submitted report under section 173, Cr.P.C. before the learned trial Court while declaring the appellants and two others as guilty. Thereafter, formal charge against the appellants was framed, to which they pleaded not guilty and claimed trial. The prosecution in order to prove its case produced as many as eighteen witnesses. Ocular account was furnished by the complainant Manzoor Ahmed who appeared as PW-2 and eye-witness Shabbir Hussain, who appeared as PW-3. Medical evidence was furnished by Dr. Muhammad Numan who appeared as PW-14. Investigation Officers of case Karam Hussain S.I., Iftikhar Ahmed SI and Shahid Iqbal ASI, appeared as PW-7, PW-12 and PW-18. The remaining, witnesses were of formal in nature and the prosecution after producing, certain documents closed its evidence. After completion of the prosecution evidence, statements of appellants were recorded under section 342, Cr.P.C., in which they denied all the allegations levelled against them by the prosecution. They did not opt to appear as witnesses under section 340(2), Cr.P.C., however, they produced two witnesses, namely, Muhammad Ramzan (DW-1) and Juma Khan (DW-2) in their defence. After evaluating the prosecution evidence available on record, learned trial Court found the prosecution version correct beyond any shadow of doubt, which resulted into convictions and sentences of the appellants in the afore stated terms.

4. In support of the instant appeal, learned counsel for the appellants submits that the prosecution story is inherently flawed and fails to inspire confidence; that although both the eye-witnesses, namely, Manzoor Hussain (PW-2) and Shabbir Hussain (PW-3) claimed to have witnessed the incident but their testimonies do not co-inside with the other circumstances of the case, hence, their evidence is not worthy of credence; that the medical evidence contradicts the ocular account and the stated motive behind the occurrence has not been established by the prosecution; that the recovery of weapon of offence is of no consequence as the report submitted by the Punjab Forensic Sciennce Agency (PFSA) is negative in nature; that the defence plea taken by the appellants is more plausible in this case as two witnesses, namely, Muhammad Ramzan and Juma Khan appeared before the learned trial Court as DW-1 and DW-2 respectively, wherein, they claimed that in fact they had witnessed the occurrence and also dislodged the claim of the eye-witnesses qua their presence at the crime scene; that the medical evidence further highlighted the other discrepancies and flaws in the prosecution case and prayed that by accepting the instant appeal, the appellants be acquitted of the charge.

5. On the other hand, learned Deputy District Public Prosecutor assisted by the learned counsel for the complainant has strongly controverted the arguments advanced by the learned counsel for the appellants and submits that case of the prosecution is based on the ocular account provided by two natural eye-witnesses of the occurrence as being inmates of the house and their presence at the crime scene cannot be doubted at any stretch of imagination; that the medical evidence is in line with the ocular assertion and the motive part of the incident has been proved by the prosecution and has also been believed by the learned trial Court; that the recoveries of weapons of offence also provide ample support and corroboration to the ocular account of the incident; that as far as the defence plea taken by the appellants during the course of investigation is concerned, it is not confidence inspiring as the same has been belatedly taken; that both the DWs Muhammad Ramzan and Juma Khan had not plausibly explained their presence at the crime scene, hence, their evidence is not only unreliable, rather does not create any dent/doubt in the prosecution case and lastly prayed that since all the appellants have rightly been adjudged guilty by the learned trial Court, so, there is no material available on record to interfere in the well-reasoned impugned judgment, hence, the instant appeal is liable to be dismissed.

6. In support of Cr. Revision No.65 of 2016 filed by the complainant, learned counsel for the complainant submits that the learned trial Court has believed the evidence adduced by the prosecution and thereby convicted and sentenced the appellants, so, there was no occasion for the learned trial Court to award lesser penalty to the appellants and finally prays that by accepting the instant revision petition, sentences of the appellants may sufficiently be enhanced.

7. I have heard arguments of learned counsel for the parties, analyzed the evidence/record with their assistance and noticed that in order to prove its case and bring home the guilt of the appellants/accused persons, the prosecution has relied upon the ocular account provided by Manzoor Ahmed (PW-2) and Shabbir Hussain (PW-3), medical evidence in shape of postmortem report (Ex-PP) and testimony of Dr. Muhammad Numan (PW-14), who conducted the autopsy on the dead body of the deceased Altaf Hussain, evidence of motive provided by both the eye-witnesses and the evidence of recoveries of weapons of offence from the appellants. As far as the ocular account is concerned, Manzoor Ahmed (PW-2) complainant of the case, who was the real father of the deceased Altaf Hussain, while submitting application (Ex-PA) before the police at the crime scene claimed that on the day of incident i.e. 08.11.2013 at 9:30 a.m. when he along with Shabbir Hussain (PW-3) his nephew and Mumtaz Hussain (given up PW), was available in his house, six accused persons on two motorcycles came to his house and called his son Altaf Hussain, who in response to their call, came out from the house. The complainant and the above said Shabbir Hussain and Mumtaz Hussain also followed Altaf Hussain to the outer gate of the house and witnessed the occurrence and in their view, the accused persons/appellants four in number made fire shots with pistols allegedly carried by them, fire shot of Rabnawaz (appellant) landed at the head of Altaf Hussain, fire shot of Fida Hussain (appellant) hit at his neck, Ghulam Yaseen (appellant) was ascribed fire-arm injury at right jaw of Altaf Hussain and fire shot allegedly made by Ali Raza landed towards the right side of the chest of the deceased, who fell down at the spot and succumbed to the wounds. Co-accused Haqnawaz (since acquitted) remained sitting on the motorcycle and an unknown accused later on was nominated as Shabbir Hussain (since acquitted) also remained sitting on the second motorcycle. After the occurrence, all the accused persons made good their excape on their motorcycles. The assailants allegedly murdered the deceased Altaf Hussain in the backdrop of motive that sons of Ghulam Mustafa and Ali Raza (appellant), namely, Riaz alias Naja and Muhammad Arshad alias Arshi were arrested by the police on the disclosure/ Mukhbari of the deceased in two different criminal cases.

8. On careful assessment of the depositions of both the eye-witnesses, I have notice that both of them claimed that the deceased was called upon by the appellants to which they followed and he was done to death in front of the gate of the house but on going through the statement of Iftikhar Ahmed, S.I. Investigation Officer of the case (PW-12) and the scaled site plan (Ex-PQ), the dead body of the deceased was available at the point No.5, which according to the prosecution witnesses is 9 karam away from main gate. Point No.5 was the open field having wheat crop and was being irrigated at that time. Eye-witnesses had not explained in their testimonies that how the dead body was shifted from in front of the house to the wheat crop (point No.5). As far as the availability of eye-witnesses at the crime scene is concerned, presence of Manzoor Ahmed (PW-2) being inmate of the house cannot be doubted, however, the truthfulness and veracity of his deposition shall be looked into and adjudged keeping in view the facts and circumstances of the case. As far as the second eye-witness Shabbir Hussain (PW-3) is concerned, in the FIR it is stated that Shabbir Hussain and Mumtaz Hussain (given up PW) were available in the house of the complainant at the time of occurrence but no reason of their visit has been mentioned either by the complainant or Shabbir Hussain himself while appearing before the learned trial Court as PW-3. There is another reason, which also creates doubt qua the availability of Shabbir Hussain (PW-3) that during the course of cross-examination, learned defence counsel had put certain queries to him about the factum of his presence at the crime scene, which he responded as under:-- "I am nephew of complainant. My house is at the distance of 1/4 acre from the house of complainant. I do my labour at brick kiln. I do my labour where it is available. I also do my labour at Chishtian and Luddan, one brick kiln is near our house. Munuaz PW also do the labour at brick kiln." So in that eventuality, the onus was on the shoulder of the prosecution to give the reason of availability of this PW in the house of the complainant. As the occurrence allegedly took place on 08.11.2013 at 9:30 a.m., so, in routine this witness should have been available at his work place, as according to him he used to work at brick kiln in those days and some of the brick kilns are situated at Chishtian and Luddan, which places are far away from the crime scene. As observed above, the complainant as well as Shabbir Hussain had not uttered a single word either before the police or while appearing in the dock before the learned trial Court to establish the factum/ reason of availability of Shabbir Hussain (PW-3) in the house of the complainant. However, other eye-witness, Mumtaz Hussain was given up by the prosecution being unnecessary, so in that eventuality, the testimonies of both the eye-witnesses cannot be relied upon without having independent and worth reliance corroboratory evidence. There is another aspect of the case, which raises eyebrow of this Court that as per prosecution case the incident took place at 9:30 a.m. and according to the evidence of the eye-witnesses and the Investigating Officers of the case, the dead body remained available at crime scene for quite sufficient period as the application (Ex-PA) for registration of case was also drafted and submitted to the Investigating Officer Iftikhar Ahmed (PW-12) at the crime scene. But according to the assertion of the Medical Officer (PW-14) Dr. Muhammad Numan, the dead body was received in the hospital on 08.11.2013 at 9:30 a.m. and during the course of cross-examination, complainant Manzoor Hussain (PW-2) admitted that distance between place of occurrence and the hospital is 22/23 kms. So, the availability of dead body exactly at the same time (i.e. 9:30 a.m.) in the hospital also creates a serious doubt about the entire story of the prosecution.

9. According to the prosecution case, each appellant had fired once at the person of the deceased. Dr. Muhammad Numan, Medical Officer (PW-14), who conducted autopsy on the dead body of the deceased Altaf Hussain observed eight bullet wounds, three were declared as exit wounds, whereas live were of entry wounds. Learned counsel for the appellants has vigorously argued that injury No.7 on left axila of the deceased was not attributed to any of the appellants and which injury is fatal in nature. On in depth analyses of the medical evidence, it is noticed that the same is not in line with the ocular account as according to the prosecution witnesses, all the four appellants had fired upon the deceased from a very close proximity. In this regard, Manzoor Ahmed (PW-2) deposed as under;- "The accused persons were at the distance of one Kadam. Rabnawaz accused was standing at the back side of Altaf deceased. Fida Hussain and Yasin accused were standing in front of Altaf deceased. Ali Raza accused was standing towards the right side of Altaf deceased. All the accused persons made firing simultaneously." Similar was the stance of the other eye-witness Shabbir Hussain (PW-3) that all the accused persons/appellants from the distance of one pace/kadam fired upon the deceased. But on going through the dimensions of the injuries, only injury No.8 at right side of chest of the deceased, which was attributed to appellant Ali Raza, was found having burning and tattooing around it and all other injuries do not have the burning, blackening and tattooing. So in that eventuality, it can safely be said that the medical evidence is not in line with the prosecution story, rather it contradicts the same.

10. Coming to the motive part of the incident, according to the prosecution case the deceased was murdered by the appellants owing the grudge that the deceased had got arrested two persons Riaz alias Naja and Arshad alias Arshi sons of Ghulam Mustafa and Ali Raza (appellant), in criminal cases lodged at Faisalabad and Islamabad. Although, both the eye-witnesses remained consistent about the motive part of the incident not only before the police but also before the learned trial Court and while passing the impugned judgment, learned trial Court had also believed the motive part of the incident but this Court has straightway observed that neither any detail of those criminal cases in which the above said two persons were arrested by the police on spying by the deceased has been given by the PWs, nor any photocopy of those FIRs or any other proof regarding their arrest in those cases has been provided by the prosecution. Under the circumstances, it is found that the motive part of the incident is merely based upon oral assertions and no documentary evidence whatsoever had been produced before the learned trial Court, hence, it cannot be said that the prosecution has successfully proved the motive part of the incident, therefore, it hardly provided any corroboration to the ocular account.

11. As far as the recoveries of weapons of offence from the appellants are concerned, Karam Hussain SI Investigating Officer of the case (PW-7) while appearing in the dock deposed that he arrested appellants Ghulam Yaseen and Rabnawaz on 28.08.2014 and during the physical remand, he recovered 30 bore pistols from each, in consequence of information provided by both the appellants. On going through the evidence of recovery, it is noticed that during the first visit of the crime scene, Investigating Officer Iftikhar SI (PW-12) apart from the blood stained earth (Ex-PC), also secured four crime empties of pistol 30 bore from the place or occurrence and the same were sent for forensic analyses along with weapons allegedly recovered from the appellants and according to the report submitted by the Punjab Forensic Science Agency (Ex-PS) all the four crime empties were not found to be fired from the weapons of offence allegedly recovered from the appellants. Meaning thereby that the report of Punjab Forensic Science Agency (PFSA) is negative in nature. Under the circumstances, the stated recoveries of weapons of offence are held inconsequential.

12. Now adverting to the defence evidence, it is noticed that almost all the appellants while recording their statements under section 342, Cr.P.C. had taken the plea of alibi by stating therein that they were not available at the crime scene rather at that point of time they were available at other places, the detail of which is mentioned in their replies given in answers to the questions put to them while recording their statements under section 342, Cr.P.C. but admittedly, they have not adduced any evidence in support of their plea of alibi. So under the circumstances, there is no need to comment further upon the said plea taken by them. However, two persons Muhammad Ramzan and Rana Khan were adduced as defence witnesses before the learned trial Court as DW-1 and DW-2 respectively. On going through their testimonies, it is noticed that both of them claimed that in fact they were the persons, who firstly reached at the place of occurrence with the further assertion that in fact both the eye-witnesses (PW-2 and PW-3) were not available at the crime scene and soon after the occurrence, they had called the complainant (PW-2) from his house. While narrating the incident Muhammad Ramzan (DW-1) deposed as under:-- "About 2 years and 3 months back, I along with Juma Khan, Ameer Bukhsh and Ameer Hussain were sitting outside my house at Mouza Jillani.We had heard the noise of 4/5 fire shots at 9:00 a.m. It was about 2 acres from my house. We rushed towards that direction and saw the Altaf Hussain injured condition over there. I asked to bring the cot for shifting Altaf Hussain in injured condition to the hospital but meanwhile Altaf Hussain succumbed to the injuries. We put the dead body on the cot there was pistol hanging around his shoulder. I removed the pistol from the dead body and given to Ameer Hussain. I made a call to the P.S. I also asked to inform Manzoor (father of deceased)/complainant) because his son was murdered. At that time Manzoor complainant was there. He was reciting Qur'an in the graveyard. The police of Police Station Anaytee came there and taken the dead body to Police Station Anaytee." He further deposed that:-- "Manzoor complainant requested me to become PW in this case but I refused the request of complainant by telling him that he was going to involve innocent persons in this case, the accused persons facing the trial of this case are innocent." The other witness Juma Khan (DW-2) also narrated the facts almost in a similar manner.

13. To ascertain the truth of these DWs, I have given my anxious consideration to the evidence available on record and noticed that the prosecution has produced three Investigating Officers as witnesses i.e. Karam Hussain, S.I. (PW-7), Iftikhar Ahmed, S.I. (PW-12) and Shahid Iqbal, A.S.I. (PW-18). PW-12 Iftikhar Ahmad, S.I. in his deposition admitted the factum of joining the above said defence witnesses during the course of investigation in the following terms,- "Juma Khan son of Shair Khan was present at the place of occurrence when I firstly visited the place of occurrence. It is correct that point No.2 is not in front of outer gate of Manzoor Ahmed complainant. I recorded the first version of Shabbir Hussain accused." About the other witness Muhammad Ramzan (DW-2), he (PW-12) deposed as under;- "On 20.12.2013, Rmazan son of Kalo appeared before me and he pleaded the innocence of Shabbir accused by claiming that he reached at the place of occurrence soon after the occurrence." Similarly, the other Investigating Officer Karam Hussain (PW-7) also admitted the participation of above said DWs before him almost in a similar manner. So, on going through the excerpts of testimonies of the above said DWs, I have reached to the conclusion that the evidence of both these defence witnesses is sufficient to create a reasonable doubt qua the truthfulness and veracity of the eye-witnesses (PW-2 and PW-3), rather this dislodged their claim qua the availability and witnessing the occurrence. Even otherwise, viewing the case of the prosecution and defence in juxta position, the balance of probability tilts towards the defence side.

14. As discussed supra, on account of certain inherent defects, the testimonies of both the eye-witnesses were declared to be not confidence inspiring and worth reliance, so, no implicit reliance can be placed upon them, without having independent corroboration to maintain the convictions and sentences imposed upon the appellants and this Court has already highlighted the status and veracity of other pieces of evidence i.e. medical evidence, motive and evidence of recoveries of weapons of offence and due to the reasons mentioned above, the same have been discarded, so in that eventuality, nothing is available on record, which could provide support/ corroboration to the ocular account, which could cure the inherent flaws in it and as observed above, the evidence adduced by the defence is most probable and confidence inspiring keeping in view the facts and circumstances of the case. It is trite that to give someone the benefit of doubt, it is not necessary that there should be many doubts in the prosecution case but even a single stance/fact creating reasonable doubt in the prosecution case is sufficient to acquit the accused from the charge. Reliance in this regard is placed on the judgments passed by the august Supreme Court of Pakistan in cases of "The State through P.G. Sindh and others v. Ahmed Omar Sheikh and others (2021 SCMR 873), Muhammad Ashraf alias Acchu v. The State (2019 SCMR 652), Munir Ahmad and another v. The State and others (2019 SCMR 79), Muhammad Akram v. The State (2009 SCMR 230), Ayub Masih v. The State (PLD 2002 SC 1048) and Tariq Parvaiz v. The State (1995 SCMR 1345).

15. Resultantly, convictions and sentences awarded by the learned trial Court to the appellants cannot be allowed to stand, hence, the same are set aside. The instant Criminal Appeal is allowed and the appellants are acquitted of the charge. They are in jail, so, they be released forthwith if not required in any other case.

16. So far as Criminal Revision No.65 of 2016 filed by the complainant Manzoor Ahmed is concerned, in the light of above discussion the instant Criminal Revision petition filed by the complainant for enhancement of convictions and sentences of appellants/respondents Nos.2 to 5 being without merits is hereby dismissed. SA/F-16/L Appeal allowed.