2025 PLP 1332 (YLR)

Ali Baqar Najafi, J.

Through this Jail Appeal under Section 410 Cr.P.C., the appellant, Abu Zar Ghafari, has challenged the judgment dated 27.11.2021 passed by the learned Additional Sessions Judge, Faisalabad, in case FIR No.1447/2020, registered under Sections 302, 324, 34 P.P.C. at Police Station Millat Town, District Faisalabad, whereby, the appellant was convicted and sentenced as under:- Convicted under Section 302(b) P.P.C. and sentenced to imprisonment for life (R.I) as Tazir. Convict shall also pay an amount of Rs.500,000/- compensation to the legal heirs of deceased. The compensation shall also be recoverable as arrears of land revenue. In default of payment of fine, the convict shall further undergo six months S.I. Benefit of Section 382-B Cr.P.C was given to the convict.

4. Briefly, the prosecution case, against the appellant, as disclosed in the complaint (Exh.PB) by Anwar-ul-Haq alias Bilawal/complainant (PW-8) is that on 12.09.2020 at about 07:15 p.m., Alam Sher (since acquitted) and his son namely, Abu Zar Ghafari, appellant both armed with pistol, along with two unknown persons, while riding on a motor-cycle CD-70, came to the house of complainant (PW-8). Alam Sher (since acquitted) was driving the motor-cycle, whereas, Abu Zar Ghafari/appellant was riding with him while armed with pistol. Two unknown persons were riding on another motor-cycle. They knocked the door of the house and when elder brother of complainant (PW-8) namely, Shahzad Ali, opened the door, the assailants started abusing him, meanwhile, the complainant (PW-8) came out of the house. Alam Sher made fire shot with his pistol which hit on the front abdomen of Shahzad Ali (deceased) and then he raised LALKARA to commit murder of Shahzad Ali, upon which, Abu Zar Ghafari/appellant made a straight fife shot with his pistol, which hit on the front of abdomen of Shahzad Ali deceased. The complainant (PW-8) refuged behind the door to save his life but Shahzad Ali fell on the ground and was seriously injured. Four bulbs were lit outside the house. The complainant (PW-8), Ali Asghar (since given up) and Waris Ali (PW-9) witnessed the occurrence but due to fear, they did not come forward. Shahzad Ali was shifted to Allied Hospital through rescue 1122 in injured condition but on 01.10.2020 he died in the hospital. On 19.09.2020, the complainant moved an application (Exh.PB) for registration of FIR. The motive behind the occurrence was that Alam Sher (since acquitted) was a truck driver, who had a quarrel with one Sajawal, the brother of the complainant (PW-8), due to which the murder was committed.

3. After completion of investigation, report under Section 173 Cr.P.C. was prepared and challan was submitted before the learned trial court. The charge was framed against the appellant and Alam Sher who pleaded not guilty and claimed trial. The prosecution produced 11 witnesses in total. Mehmood Akbar Nizami, draftsman, (PW-1), prepared the scaled site plan (Exh.PA and Exh.PA/1), Muhammad Kashif constable chalked out formal FIR (Exh.PB/1), received sealed parcel of two empties of 30-bore pistol and parcel of blood stained earth from Jameel Arshad A.S.I (PW-7) for safe custody in the Malkhana of Police Station and for onward transmission to the office of PFSA, Muhammad Tariq Waseem constable (PW-3), received dead body of Shahzad Ali (deceased) outside the emergency ward of Allied Hospital, Faisalabad after post-mortem examination and Medical Officer also handed over to him last worn clothes of deceased i.e. Shalwar (P-1), Dr. Ehsan Ahmad (PW-4) Senior Demonstrator, Punjab Medical College, conducted the post-mortem examination of Shahzad Ali (deceased), Dr. Sultan Mehmood (PW-11) conducted the medical examination of Shahzad Ali, when he was in injured condition and issued M.L.C No.38/20 (Exh.PP), Muhammad Akram Inspector (PW-5), conducted the 1st investigation, Arshad Ali S.I (PW-6) also conducted the 3rd investigation, Jameel Arshad A.S.I (PW-7) conducted the first investigation, Imran Javed S.I (PW-10) is also the investigating officer, whereas, Anwar-ul-Haq alias Balawal (PW-8) was the complainant of the case and Waris Ali (PW-9) was the eye-witness of the occurrence. In documentary evidence, prosecution produced scaled site plan (Exh.PA and Exh.PA/1), complaint (Exh.PB), FIR (Exh.PB/1), front desk online complaint (Exh.PB/4), recovery memo. of last worn clothes of deceased (Exh.PC), Post-Mortem Examination Report of deceased Shahzad Ali (Exh.PD), Pictorial diagrams (Exh.PD/1 and Exh.PD/2), injury statement (Exh.PE), inquest report (Exh.PF), recovery memo. of pistol (Exh.PG), unscaled site plan of place of occurrence (Exh.PH), recovery memo. of motor-cycle (Exh.PJ), recovery memo. of two live bullets (Exh.PK), recovery memo. of blood stained cotton (Exh.PL), recovery memo. of four bulbs (Exh.PM), unscaled site plan (Exh.PN), M.L.C No.38/2020 of injured Shahzad Ali (Exh.PP), Firearm and Toolmarks Examination Report (Exh.PR), injury statement (Exh.PR/1), letter regarding obtaining expert opinion (Exh.PR/2), Forensic DNA and Serology Analysis Report (Exh.PQ) and closed the prosecution evidence.

4. In answer to the question "Why this case has been registered against you and why the PWs deposed against you", he stated as under:- "It is a false, concocted and afterthought story. Actually both parties are truck driver. They have some privial matters regarding money. This is unseen, blind murder case. I was booked in this case due to money matters. PWs are interested and inter-se related." The appellant opted not to depose under Section 340(2) Cr.P.C. and also not to produce defence evidence.

5. Learned counsel for the appellant contends that there is a delay of eight days in lodging of FIR without mentioning any specific time of occurrence; Anwar-ul-Haq alias Bilawal/complainant (PW-8) and Waris Ali (PW-9) eye-witness are the chance witnesses; the M.L.C does not support the ocular account; the motive part has been disbelieved by the learned trial court and the recoveries were not proved. Adds that on the same set of witnesses, Alam Sher was acquitted by the learned trial court and there is no dying declaration of Shahzad Ali (deceased) despite the fact that he remained alive for eight days. Learned counsel relied upon case law titled "Maqsood Alam and another v. The State and others" reported as (2024 SCMR 156) and prays for the acquittal of the appellant.

6. Conversely, learned Deputy District Public Prosecutor assisted by learned counsel for the complainant submits that prosecution has proved its case beyond any shadow of doubt and prayed that appal may be dismissed.

7. Arguments heard. File perused.

8. The prosecution case is comprised of eye-witnesses namely Anwar-ul-Haq alias Bilawal (PW-8) and Waris Ali (PW-9), the medical evidence of Dr. Ehsan Ahmad (PW-4) and Dr. Sultan Mehmood (PW-11), the investigation was conducted by four PWs i.e. (PW-5, PW-6, PW-7 and PW-10), the scaled site plan was prepared by Mehmood Akbar Nizami (PW-1). The evidence is being discussed under separate headings as under:- OCCULAR ACCOUNT

9. Anwar-ul-Haq alias Bilawal (PW-8) is the complainant, who narrated the story of the FIR by stating that on 16.09.2020 he filed an application (Exh.PB) on Front Desk of the Police Station for registration of FIR. On 01.10.2020, Shahzad Ali had died in the Allied Hospital and he recorded his supplementary statement before the police as a complainant (PW-8). On 12.11.2020, he joined the investigation and Abu Zar Ghafari/appellant got recovered pistol 30-bore (P-2) from an open plot situated at FDA City Faisalabad and also recovered two live bullets, which were taken into possession vide recovery memo. (Exh.PG). In cross-examination, he admitted that time of occurrence was not mentioned in the application (Exh.PB). He denied the suggestion that time of occurrence was 07:15 p.m. but admitted that he moved the application on 12.09.2020 instead of 16.09.2020. However, no application of this date was available on the police record when checked by the court. He admitted that the police recovered two empties of pistol 30-bore but volunteered that on 19.09.2020, the site plan was prepared by the Investigating Officer. He admitted that he did not point out any marks of gun shot on the wall either to the draftsman or to the Investigating Officer. He also admitted that he filed an application to the police on 16.09.2020 and before that he did not file any application for registration of the FIR, since the police demanded copy of the M.L.C of the injured. He admitted that Shahzad Ali (deceased) remained admitted in the Allied Hospital for 18/19 days and during this period, the Investigating Officer did not record the statement of any witness or the injured in the hospital but recorded the statement of his brother (injured) in the hospital. However, on checking no such statement is available on the record. He stated that his brother Sajawal was produced before the Investigating Officer but his statement under section 161 Cr.P.C was recorded but it is not available on the record. He also admitted that he did not move any application in respect of the motive of the occurrence before 12.09.2020. He admitted that female members of his family were not produced before the police during the investigation. He stated that one Malik Latif resident of same locality was produced but his statement under section 161 Cr.P.C is also not available on the record. He did not produce C.D.R of his cell phone and also not recorded the statement of any official of rescue 1122 or

15. He admitted that his late brother was a truck driver.

10. Waris Ali (PW-9), the eye-witness reiterated the same story of FIR as narrated by the complainant (PW-8) and stated motive that Alam Sher (since acquitted) was a truck driver who had a quarrel with his son namely, Sajawal (not cited as witness). The police took two empties of pistol and blood soak cotton from the place of occurrence, which was taken into possession vide recovery memo. (Exh.PK) and also took into possession the four bulbs (P-3/1-4) vide recovery memo. (Exh.PM). In cross-examination he stated that he was standing outside the house with Ali Asghar (not produced), which was confronted with his previous statement (Exh.DA), where it was stated that both were standing in the street. He admitted that he did not visit the hospital on 12.09.2020, whereas, on 19.09.2020 the police visited the place of occurrence. He stated that statement of Shahzad Ali (deceased) was recorded by the police in Allied Hospital but it was not available on the file despite checking. He admitted that police found Alam Sher (since acquitted) as innocent during the investigation and the complainant side did not file any application for the change of investigation.

11. These two witnesses have made significant improvements in their previous statements recorded under section 161 Cr.P.C. and have not been able to satisfactorily explain as to why the occurrence dated 12.09.2020 was reported to the police on 19.09.2020, i.e. after 07 days, particularly when M.L.C (Exh.PP) had already been issued prior on 17.09.2020 by Dr. Sultan Mehmood (PW-11). This has raised suspicion about their presence at the time of occurrence. MEDICAL EVIDENCE

12. Dr. Sultan Mehmood (PW-11) conducted the physical examination of Shahzad Ali, when he was brought to Allied Hospital on 12.09.2020 at 08:15 p.m. in injured condition. As per brief history, it was a case of firearm injury inflicted on 12.09.2020 at 7.15 p.m. due to some parking dispute. He had observed following injures:- Injury No.1 An entry wound inverted margin and abrasion coller cm x cm on left side lower abdomen, 10 cm below and 4 cm left to umbilicus. Injury No.2 An exit wound with everted margin, 2 cm x 1 cm on left hypochondrium, 8 cm above and 4 cm left to umbilicus. Both injuries were kept under observation. The X-Ray abdomen pelvis, ultrasound of abdomen pelvis and surgical notes were prepared. In his opinion, it was a firearm injury. In cross-examination, he stated that the injured was stable at the time of his examination but he did not name the assailants in the column of history of M.L.C. Shahzad Ali put his thumb impression on the M.L.C and the medical report was handed over to Anwar-ul-Haq/complainant (PW-8). The injured arrived at the hospital on 17.09.2020 at 08:15 p.m. and before said date he did not conduct any medical examination. It means that his medical examination was not conducted on 12.09.2020.

14. Dr. Ehsan Ahmad (PW-4) conducted the autopsy on the dead body of Shahzad Ali (deceased). The dead body was received in the hospital on 01.10.2020 at 08:45 a.m. and he conducted the post-mortem examination at 11:10 a.m. after receiving complete documents. On external examination, he noted that the rigor mortis was developed. According to M.L.C conducted on 17.09.2020 (not on 12.09.2020), he had undergone exploratory laparotomy operation. The deceased was received in emergency of Allied Hospital at 01.15 a.m. as expired as mentioned in the death certificate. The deceased was having laparotomy scar on front and middle of abdomen, colostomy bag was attached and a 04 cm stitched wound on left side of abdomen was present. 100 ML of blood was found present in abdominal cavity on dissection. The death occurred due to firearm injury (as stated in M.L.C) and its complication leading to hemorrhagic shock which was sufficient to cause death in ordinary course of nature. The probable time of death and post mortem was 12-hours and that it was a hospital death. In cross-examination, he admitted only three surgical injuries were mentioned in injury statement (Exh.PE) and also in the inquest report (Exh.PF), which were the only injuries observed by him.

14. The injured was operated prior to his death but surprisingly the prosecution has not produced the relevant Medical Officer who operated the deceased. INVESTIGATION

15. Mehmood Akbar Nizami (PW-1), draftsman, visited the place of occurrence on 04.10.2020 on the asking of Muhammad Akram S.I. No PW pointed out any portion of the wall or outer door where the fire had hit or the motor-cycle was parked.

16. Muhammad Kashif, constable (PW-2) deposited two empties of pistol 30-bore and blood coop cotton, after receiving it from Jameel Arshad A.S.I (PW-7), for safe custody in Malkhana of Police Station and onward deposited in the office of PFSA thus its custody remained safe. He admitted that he did not receive any application or any information regarding the of occurrence on 12.09.2020. It was 19.09.2020, when Jameel Arshad A.S.I (PW-7) received application for registration of FIR.

17. Muhammad Tariq Waseem, Constable (PW-3) received the dead body and handed it over and last worn clothes to the Investigating Officer.

18. Muhammad Akram Inspector (PW-5) conducted the 2nd investigation, arrested the appellant on 01.11.2020 and got his physical remand. In cross-examination he admitted that neither any mark on the outer wall nor at place of parking of motor-cycle was pointed out. He admitted that complainant (PW-8) did not hand over to him any admission slip, discharge slip or any operational notes of the injured/deceased. He, however, admitted that six witnesses appeared before him on behalf of the complainant (PW-8), who did not disclose any role of any of the accused persons and they also did not mention the name of any eye-witness.

19. Arshad Ali S.I (PW-6) also conducted the investigation after 08.11.2020. On 12.11.2020, he got recovered pistol 30-bore from Abu Zar Ghafari/appellant and registered separate FIR. He took into possession the motor-cycle bearing registration No.9967-SLM United 70 CC produced by Sajjad son of Yaqoob, as the motor-cycle was used by appellant on the day of occurrence, which was taken into possession vide recovery memo. (Exh.PJ). In cross-examination, he admitted that no proof of resident of appellant at Zeenat Town District Faisalabad was provided to him. He admitted that Alam Sher was not found involved in the occurrence and he did not collect the C.D.R Data of Abu Zar Ghafari/appellant of the day of occurrence. Sajawal was not produced by the complainant as a witness before him during the investigation and that no witness in support of motive part was produced before him. He also admitted that ownership of said motor-cycle of Abu Zar Ghafari/appellant was not produced. He also admitted that no motor-cycle number was mentioned in the FIR. He did not record statement of Sajawal son of Yaqoob, who produced the motor-cycle.

20. Jameel Arshad A.S.I (PW-7) also conducted the 1st investigation. On 19.09.2020, he received information on rescue 15, reached at the place of occurrence, took into possession two empties of the pistol (Exh.PK), four bulbs (P-3/1-4) vide recovery memo. (Exh.PM) and went to the hospital, where injured was not able to record his statement. He received the application for registration of FIR (Exh.PB) on 19.09.2020. He prepared unscaled site plan (Exh.PN), recorded the statement of witnesses under section 161 Cr.P.C. He handed over sealed parcel of blood stained cotton, bulbs and empties to the Moharrar for safe custody in Malkhana and on 01.11.2020, he received the parcel and deposited it in the office of PFSA. On 30.09.2020 at 30:30 a.m. he received message that Shahzad Ali had expired in the hospital and thereafter, Section 302 P.P.C. was added. In cross-examination, he admitted that he did not mention in his case diary about receiving of call from rescue

15. He admitted that on 12.09.2020, he did not record the statement of complainant and eye-witness under section 161 Cr.P.C. He admitted that on 12.09.2020, 8/10 persons were present at the place of occurrence but none of them recorded their statement under section 161 Cr.P.C. He did not mention this fact that on 12.09.2020 the dead body was shifted to the hospital by officials of rescue 1122. He did not move any application to the M.S Allied Hospital to record the statement of injured Shahzad Ali. He stated that he did not mention the fact of receiving M.L.C of Shahzad Ali. He admitted that the date 12.09.2020 is not mentioned in the recovery memo. (Exh.PB). He admitted that Shahzad Ali did not die on 19.09.2020 but inadvertently he mentioned 302 P.P.C. on 19.09.2020. He admitted that he mentioned in his case diary that on 24.09.2020 that Shahzad has been discharged from the hospital but the complainant did not produce the discharge slip. CONCLUSION

21. Scanning the prosecution evidence, the following important points have been noted:- Firstly: The occurrence took place on 12.09.2020 but it was reported to the police on 19.09.2020 on the flimsy grounds that M.L.C was not available with the Medical Officer. This date was confronted and then it was reaffirmed by other witness (PW-9) that injured was examined on 17.09.2020. Such delayed lodging of FIR give serious doubts and questions the truthfulness of the prosecution story and gave rise to the deliberation and consultation to cook up a false story. Reliance is placed upon case, titled "Muhammad Zubair v. The State" reported as (2007 SCMR 437). Relevant extracts from para 4 are reproduced as under:- "4. ...... Generally delay in lodging FIR cannot in all cases lead to the inference that the case set up in the FIR is necessarily true or false, however, it is relevant circumstance to be considered......" Secondly: After examination of Shahzad Ali, in injured condition by Dr. Sultan Mehmood (PW-11), his autopsy was then conducted straightaway by Dr. Ehsan Ahmad (PW-4). No doubt, the deceased was operated upon and had gone under medical treatment but such medical evidence and operation notes were not produced. The doctor mentioned it to be a hospital death and also had taken three surgical injuries only because death was due to firearm injury, as stated in the M.L.C and its complication leading to hemorrhagic shock, which was sufficient to cause death in the ordinary course of nature. Obviously, during the operation surgical injuries were caused by Dr. Sultan Mehmood (PW-11) and in this way whether the deceased could have been saved by a careful medical attention is not forthcoming in the prosecution story. In facts and circumstances, the possibility of criminal negligence cannot be ruled out. Thirdly: The complainant has not been able to point out to the Investigating Officers or draftsman (PW-1) the place where the bullet shot had hit since the deceased had sustained one injury but two fires were shot. He has not been able to explain on which place, the motor-cycle was parked by the assailant in the street which doubts his presence at the time of occurrence. Fourthly: Anwar-ul-Haq alias Bilawal (PW-8) and Waris Ali (PW-9) both and significantly improved their previous statements by introducing new facts and that is the reason why co-accused Alam Sher, father of the appellant, was acquitted. Fifthly: When the eye-witnesses were doubted on their credibility of statements, the learned trial court had given no convincing reasons, as to why it was not believable when it came to the question of culpability of Alam Sher and relied upon when the appellant was to be convicted. Reliance can be placed upon "Maqsood Alam and another v. The State and others" reported as (2024 SCMR 156). Relevant extract at Page 162 is reproduced as under:- "When the ocular account of the two eye-witnesses had been disbelieved by the learned Trial Court against the acquittal co-accused, who was alleged to have played a similar role in the occurrence, then the same evidence could not be relied upon to convict the petitioner on capital punishment unless there was an independent corroboration and some strong incriminating evidence to the extent of his involvement in commission of the offence but as discussed above the same is lacking in the instant case." Sixthly: It is the prosecution story that deceased had sustained injuries and which he was examined by Dr. Sultan Mehmood (PW-11), he did not narrate about the name of the assailants. The Investigating Officer did not record the statement of the doctor about the fact whether Shahad Ali was able to make a statement. The complainant (PW-8) and eye-witness (PW-9) have stated that deceased had made a statement before the Doctor but said statement is not available on the record. Hence, with this background, the prosecution's evidence cannot be relied upon to sustain the conviction of the appellant.

22. In this view of the matter, the prosecution has failed to prove its case against the appellant beyond any reasonable doubt. Resultantly, this Criminal Appeal is allowed. The appellant is acquitted of the charges levelled against him. He is jail and shall be released for with, if not required in any other case. JK/A-21/L Appeal allowed.