2017 PLP 168 (YLRN)

MAZHAR IQBAL SIDHU, J.

Composite judgment to dispose of captioned criminal appeal filed by Azhar Ali appellant as well as Criminal Revision Petition No.508 of 2013 filed by Falak Sher complainant of complaint case and also the PLSA No. 118 of 2013 instituted by complainant. The appellant was punished by learned Addl. Sessions Judge, Renala Khurd, District Okara in private criminal complaint titled Falak Sher v. Azhar Ali etc. filed by Falak Sher complainant' under sections 302/324/148/ 149, P.P.C. emanated of FIR No.303/2009 registered at Police Station Chochak, Renala Khurd, Distirct Okara vide impugned judgment dated 31.05.2013. Following convictions and sentences were imposed on the appellant:-- UNDER SECTION 302(b), P.P.C. Life imprisonment as Tazir with compensation of Rs.2,00,000/- as required under section 544-A, Cr.P.C. to be paid to the legal heirs of the deceased Abdul Jabbar according to their legal shares and in default whereof to further undergo six months' S.I. with benefit by section 382-B, Cr.P.C.

2. Precisely accusal as narrated by complainant Falak Sher (PW.1) in application Exh.PA as well as FIR Exh.CW-4/A is that on 27.05.2009, at about 8.30 p.m., he along with Abdul Jabbar deceased (his brother) and Ansar Ali nephew were present in the Chowk of the village Mangan. Electric bulb was on, suddenly, appellant Azhar Ali armed with 30-bore pistol, Muhammad Hafeez co-accused (since murdered and proceedings to his extent were abated by the learned trial court vide order dated 25.5.2013, hereinafter would be called since murdered) armed with .30-bore pistol, Iftikhar Ahmad co-accused (since acquitted) armed 12-bore gun pump action, Muhammad Usman and Kashif co-accused persons (since acquitted) both armed with Sotas came there. Muhammad Hafeez (since murdered) raised Lalkara that Falak Sher etc. be taught a lesson for demanding cell phone, upon which Muhammad Hafeez (since murdered) and Iftikhar (since acquitted) started firing with their respective weapons. Muhammad Usman co-accused (since acquitted) gave fist blows to Ansar Ali nephew of complainant. Abdul Jabbar deceased step forwarded to rescue Ansar Ali (PW-2) whereupon Muhammad Usman co-accused (since acquitted) caught hold Abdul Jabbar deceased from his buttoned collar/Greban and pulled him, then Azhar Ali appellant fired with his 30-bore pistol, hitting on the left side of chest of Abdul Jabbar deceased who fell dead. On the hue and cry of the complainant, Zulfiqar (PW.3) and Muhammad Ameer PW (not examined) attracted and witnessed the occurrence. Culprits fled away with their respective weapons. Motive behind the occurrence as alleged by the complainant was that prior to the present occurrence Ansar Ali (PW.2) had exchanged cell phone with the appellant but he did not give it in return. Ansar Ali (PW.2) demanded from Azhar Ali but not paid heed. Azhar Ali appellant was passing through the Chowk where Ansar Ali (PW.2) was also present there demanded his cell phone from Azhar Ali appellant, resultantly, the unfortunate incident took place.

3. The case was registered but later on being averse with the police investigation, private complaint (Exh.PB) was instituted followed by the trial.

4. Trial commenced on the denial of indictment.

5. At the trial, prosecution in order to prove its case produced as many as 15 witnesses in total. Out of them 5 witnesses were examined as PWs and 10 were examined as CWs. The medical evidence was adduced through the statement of Dr. Ishtiaq Ali SMO DHQ Hospital, Okara (PW.4). He on 27.05.2009 conducted post mortem examination on the dead body of Abdul Jabbar deceased and observed infra:? INJURY. i) A lacerated wound 1-1/2 cm x 1 cm deep going inverted margins, located on the upper part of left chest below mid of left clavicle. ON DISSECTION The bullet injured left upper part of lung. Left pleura and pierced the heart and right lung and pleura. Both the lung cavities were full of blood. The bullet fractured left third rib and 8th right rib. The bullet was recovered from inner side of right chest cavity. OPINION According to his opinion, the cause of death was injury No.1 which is sufficient in ordinary course of nature to cause death. The injury was ante-mortem and caused by fire-arm weapon. The time between injury and death was immediate and between death and post mortem was within 10 hours. Exh.PD was the correct carbon copy of the post mortem report and Exh.PD/1 was the pictorial diagram showing the locale of the injury which bore his signatures. He also endorsed application for post mortem report Exh.PE, injury statement Exh.PF and inquest report Exh.PG.

6. Learned counsel for the complainant renounced PWs namely Muhammad Ameer and Liaquat Ali as being unnecessary and learned ADPP by tendering in evidence the report of Serologist Ex.PI, report of FSL, Lahore regarding pistol 30 bore Ex.PJ and report of FSL, Lahore in respect of one crime jacketed bullet Ex.PK closed the prosecution evidence. Then statement of the appellant was recorded under section 342, Cr.P.C. in which he negated the charge and professed his innocence. Appellant Azhar Ali while answering to a question why this case against him and why the PWs deposed against him stated infra:-- "All the PWs are related inter-se and they are inimical with me. There was long standing litigations existed between the complainant party with me and my family. I am educated person. I have no concern with my co-accused. There was litigation between me and co-accused of this case. I was neither present at the alleged place of occurrence at the time of occurrence, nor I have any concern with the said occurrence. I was involved by the complainant party by throwing a wide net while joining hands with the police and my enemies in the influence and provocation of the MPA of our constituency who was inimical with me and was the chief supporter of complainant party having ulterior motive against me due to litigation and political vendetta against me. During the course of investigation conducted by the local police as well as DIG Investigation head quarter, Lahore, prosecution version was found false. In the said investigation found that complainant party is not ready to state correct circumstances regarding the alleged occurrence. There is criminal litigation of murder, attempt to murder and hurt cases exist between complainant party as well as with me and my family, FIR No.516/06 under sections 337-F(i)(iii), 148, 149, P.P.C. P.S. Chochak, FIR No.163/89 under sections 302, 307, 336, 148, 149, P.P.C. P.S. Chochak, FIR No.126/2000 under sections 302, 324, 148, 149, P.P.C., P.S. Chochak, FIR No.164/89, under sections 302, 148, 149, P.P.C., P.S. Chochak etc., due to grudge of criminal litigation I am falsely involved in this case. I am being prosecuted on trumped up charges. I am innocent. The appellant by tendering in his defence certified copies of FIR No.126/2000 Ex.DB, FIR No.764/89 Ex.DC, FIR No.163/89 Ex.DD and FIR dated 05.11.2006 Ex.DE closed the same.

7. Upon the conclusion of trial, appellant was convicted and sentenced as mentioned op-cit while his co-accused namely Iftikhar Ahmad, Muhammad Usman and Muhammad Kashif were acquitted by the learned trial court while proceedings to the extent of co-accused Hafeez. (since murdered during trial) were abated. Hence, instant appeal as well as revision petition and the PSLA.

8. Unto appeal, it has been argued that the incident took place during night time but prosecution has failed to prove any source of light, as per prosecution's case electric bulb was litting at the time of occurrence but the same was not taken into possession nor its watt's specification has been brought on the record. It has been submitted that night implies darkness except is proved otherwise therefore, question of mistaken identity of the culprit who had committed the murder of Abdul Jabbar remains big-one.

9. Learned counsel for the appellant has submitted that case was registered against five persons namely Azhar Ali the appellant, Muhammad Hafeez, Iftikhar, Muhammad Usman and Kashif, all were shown to be armed with different weapons but except the appellant remaining co-accused were found innocent during the investigation, this fact again cast doubt in the prosecution case. The complainant being dissatisfied with output of investigation filed a private complaint on 06.10.2009 after about more than four months of the happening of the incident, all were tried in the private complaint but again the learned trial court has disbelieved the prosecution version qua the involvement of Muhammad Hafeez, Iftikhar, Muhammad Usman and Kashif, extending them benefit of doubt to acquittal.

10. So far as the motive of the prosecution case is concerned, the same is not directly attributed/attributable to the appellant as per prosecution's own case. Ansar Ali PW-2 exchanged his mobile telephone set with Azhar Ali appellant but appellant did not hand his mobile set over to Ansar Ali rather had taken from Ansar Ali (PW.2) who was present at the spot allegedly despite having opportunity he was not hit, co-accused Muhammad Usman (since acquitted) caused him fisticuffs while Abdul Jabbar, the deceased, attempted to save him. Azhar Ali appellant had no motive against Abdul Jabbar, all the accused mentioned in the FIR as well as in the private complaint have been attributed specifically their individual roles but the learned trial court has not believed them qua the acquitted accused persons.

11. So far as the ocular account is concerned, it has been submitted that prosecution story is an improbable and is un-believed by a man of ordinary prudence because the inception of occurrence has been alleged that Muhammad Hafeez (since murdered) raised a Lalkara in the crossing of village that on the day of incident Falak Sher etc. be taught a lesson for demanding their cell phone set whereupon Muhammad Hafeez (since murdered) and Iftikhar Ahmad (since acquitted) indulged in aerial firing with their respective weapons, then Muhammad Usman (since acquitted) started beating Ansar Ali (PW-2), Abdul Jabbar deceased step forwarded to save him, then Muhammad Usman co-accused (since acquitted) caught the buttoned collar/Greban of Abdul Jabbar deceased and stretched him, in that condition Azhar Ali appellant made a fire shot with his 30-bore pistol hitting on the left side of chest of Abdul Jabbar who fell dead to the ground; the way in which prosecution has alleged sustaining of injury by the deceased, Muhammad Usman co-accused (since acquitted) was equally under threat of being hit because edges of the injury do not show blackening, meaning thereby, the deceased was fired at some reasonable distance while the doctor during his cross-examination has admitted that deceased was fired at from his front and when collar (Greban) was caught hold, then equally possibility existed of receiving the fire shot by the co-accused Muhammad Usman (since acquitted) but he did not. It has further been added that the presence of the Muhammad Usman at the place of occurrence has been found doubtful during the investigation as he was found innocent and also by the learned trial court when extended him benefit of doubt by acquitting. It has further been argued that Falak Sher complainant PW-1 is real brother of Abdul Jabbar deceased while Ansar Ali is the son of his brother, in this way, they are inter se related while Zulfiqar PW-3 is `Phophizad' of the complainant and deceased as well as their brother-in-law; no person who stood independent has supported the prosecution version, therefore, the evidence of related persons in absence of any independent corroboration may not be believed. It has further been argued that so far as the recovery of 20-bore pistol from Azhar Ali appellant is concerned effected on 26.06.2009, the same does not beef up the prosecution version as no crime empty of .30-bore pistol was taken into possession from the spot and report of the pistol simpliciter in working condition has no avail, therefore, all the circumstances accumulatively has proved that prosecution has miserably failed to prove its case against the appellant beyond shadow of reasonable doubts, thus, the instant appeal may be accepted.

12. Learned D.P.G assisted by the learned counsel for the complainant has opposed the submissions of the learned counsel for the appellant by submitting that the parties were having acquaintance priorly, therefore, the question of mistaken of identity does not arise, both the parties have been living in the same vicinity, the village people can identify the villagers even in tiwilight, here the prosecution persists of light of electric bulb under which the incident was seen, again it has been agitated that the incident commenced by the Lalkara of co-accused Muhammad Hafeez (since murdered), thereafter, Muhammad Hafeez and Iftikhar made aerial firing, then Muhammad Usman co-accused caused fisticuffs to Ansar Ali, then the deceased forwarded to rescue Ansar Ali whereupon Muhammad Usman co-accused (since acquitted) grappled the deceased from his neck, thereafter the appellant made a fire shot with his 30-bore pistol, in this way, the longitude of the incident and symmetrically prosecution story has eroded question of mistaken identity. It has further been submitted that the un-scaled site-plan (Exh.CW-7/A) as prepared by the I.O. well as scaled site plan (Exh.CW-3/1) prepared by the draftsman both have specifically shown presence of bulb being lit at the place of occurrence, its non-possessing by the Investigating Officer does not mean that there was no source of light at the place of occurrence.

13. So far as the motive of the prosecution is concerned, it has been argued that all the accused persons are inter se related; all in a preconcerted way launched attack, therefore, each has shared motive, even otherwise, motive cannot be considered a fact in issue; its non-proof may affect the quantum of sentence but it never means that the prosecution has failed to prove its case.

14. So far as the ocular account is concerned, it has been submitted that inter se relationing of the PWs has no ill-effect on their testimonies in absence of blood-feud between the parties; record shows nothing that ever earlierly there was any dispute of such a nature in which the possibility of becoming a false witness might arise. All the eye-witnesses are consistent to the accusal and they have searchingly been cross-examined but the defence remained failed to reap any benefit favouring; the learned trial court has already extended the benefit to the appellant on account of the motive, the lesser quantum of sentence. It has been submitted that post-mortem report has supported the ocular account as the doctor has categorically opined that the death was instantaneous with a bullet injury and the pistol has also been recovered from him which was found to be in working order by the Ballistic Expert. Lastly, it has been submitted that acquittal of the co-accused has no relevance qua the case of the appellant because none of them caused any injury to the deceased whereas the appellant is the sole perpetrator for the death, in this way, question of distinguishability amongst the role of each accused, cannot be ignored, thus, in all circumstances, prosecution has ably proved its case, therefore, instant appeal may be dismissed.

15. In revision petition it has been submitted that the reasons persuaded the learned trial court to inflict imprisonment for life are unwarranted because the single shot stood fatal to life to death of the deceased, arrival of the appellant at the place of occurrence with a formidable weapon and its use in its true sense does not absolve the normal penalty of death, therefore, the quantum of sentence may be enhanced to death by allowing the connected revision petition.

16. Tripartite arguments heard. Record perused.

17. The incident took place on 27.5.2009, at about 8.30 PM, whereas matter was reported on the same night at 9.30 P.M. Visibly, it depicts prompt lodging of FIR but when it is to be read along with result of investigation, then it resolutes otherwise because partway investigation Muhammad Hafeez, Iftikhar Ahmad, Muhammad Usman and Kashif were found innocent during successive investigations and this fact has not only been brought on record by the police witnesses but also through the testimonies of the eye-witnesses. This fact descriptively conveys that matter was not reported so simply as claimed. Partway cross-examination, it has also been brought on the record that priorly criminal litigation was in existence between both the parties upto murder case and suggestively it has also been brought on record that on account of the said enmity case was got lodged falsely. Post-mortem examination of the deceased was carried out on the following day and the doctor recorded the death immediate by the injuries whereas probable duration between post-mortem and the death has been recorded by 10 hours. In this way, it is inferred that the post-mortem examination was also conducted by the delay of about 10 hours. The prevailing law permits that during the night, post-mortem examination can be carried out. If the occurrence was reported to the police at 9.30 PM on 27.5.2009 then why the post-mortem examination was performed on the following day. This fact again denotes something about the deliberations and consultations. Although, a promptly reported crime has its own juridical value but when cross-examinedly it is brought on the record that it was in fact was not a prompt as asserted by the prosecution then the matter becomes more serious than to a delayed reported crime, this fact again can be interpreted like this that complainant party has shown efficiency in collusion with the police to stretch the reporting time unto prosecution,, so that vividly due to this backdrop, prosecution version may be regarded truthful. The court has drawn a conclusion that FIR was not promptly lodged; therefore, all probabilities have been noticed in the existence for deliberations and consultations by the complainant party before reporting the incident to the police. It is very unusual and unfortunate aspect of the criminal litigation that complainant party attempts to widen the net of accused persons for the best reasons known to him, hence, for sole injury, five persons have been involved but consequently, this fact mars the prosecution version. It is expected to speak truth but false implication in criminal cases has been noticed in its crescendo. The Police Department found the entire occurrence doubtful but particularly the afore-mentioned co-accused were found innocent then resultantly the complainant was obliged to file a private complainant after about four months of the registration of the case on 6.10.2009 and this fact has also been mentioned therein that the above referred co-accused were reported innocent by the investigating agency. They have also been acquitted. Therefore, double presumption has originated for the false involvement of the innocent persons.

18. Incident took place nocturnally and prosecution assertively has introduced at source of light that at the time of incident electric bulb was lit. Record has been gone through intently. The bulb alleged was never taken into possession. Its lightening implies that night was dark. Even otherwise, night means darkness unless is proved otherwise. This fact was thrashed during the cross-examination and it has been proved that at the time of occurrence, vicinity was running shut down when the incident took place. In the statement of CW.9 Faisal Gulzar, S.P., CRO, Lahore who did investigation under the dictates of DIG (Investigation), Lahore, the appellant's party produced schedule of load-shedding of the vicinity of incident to establish the fact of load-shedding from 8.00 to 9.00 PM was prevailing whereas the incident alleged to have taken place at 8.30 PM. To mean that at the time of occurrence, there was load-shedding, however, the complainant party also produced CW.10 Imdad Ali, SDO, Ravi Sub-division, Gogera who deposed that on the said date, there was no load-shedding but it is very important to note that his statement was recorded on 11.4.2013 while the incident was reported on 27.5.2009. He admitted during the cross-examination that Rana Salamat accompanied him to the court on every date except one or two occasions who was Lineman and the court did not summon him (CW.10 Imdad Ali). Suggestively brought that Rana Salamat Ali has been tried to prove somewhat having nexus with the complainant party who might have persuaded CW.10 Imdad Ali to appear before the court to support the prosecution version but again a fact cannot be gone to oblivion. CW-9 has admitted that "no application/certificate from the WAPDA authorities regarding availability of light at the relevant time of occurrence in Mauza Mangan (place of occurrence) was produced by the complainant'. He has also admitted during cross-examination that "it also transpired in the investigation that at the time of alleged occurrence i.e. 27.5.2009 at 8.30 PM night time, electricity of village Mauza Manghan was not available due to load shedding and the occurrence took place in the darkness of night and during investigation prosecution version was found false as alleged by the PWs that at the time of occurrence three fire shots were made but no crime empty was found from the place of occurrence". It remains the prime duty of the prosecution to stand on its own legs and to prove its case on each and every point. Though the parties were known to each other prior to the occurrence because litigation and enmity was in the existence inter se but at the time it has also been brought on the record that the appellant had no motive to commit the murder of the deceased whereas during investigation prosecution version was found false. In this backdrop, the source of light becomes more important to be proved by the prosecution to establish identity of the appellant but the same duty could be discharged by the prosecution, therefore, the court has no other conclusion except to hold that at the time of incident there was darkness. Another aspect which may be discussed later on when medical evidence shall be touched but suffice it to mention here that solitary injury does not have any black signs at its apertures, again this fact proves that fire shot was made from a distance.

19. To the motive of this case, it has been found that the prosecution set up the motive in Exh.PA, an application for the registration of the case, that Ansar Ali (PW.2), nephew of the complainant had exchanged his mobile telephone set with Azhar Ali appellant while through a deceiving trick, Azhar Ali did not hand his telephone set over to Ansar Ali which was demanded and the alleged incident happened. For the proof of motive, statement of PW.1 Falak Sher, brother of the deceased and PW.2 Ansar Ali are being discussed. As per the statement of PW.1 the motive for this occurrence was "that about 7/8 days prior to the present occurrence, Azhar Ali accused (appellant) and Ansar Ali PW.2 had exchanged cell phone and in lieu of that exchange Azhar Ali appellant had also to pay Rs.1000/- to Ansar PW. Ansar PW demanded the said amount from Azhar Ali appellant for 04/05 days after the exchange of cell phone to Azhar Ali but Azhar Ali accused refused to pay the said amount". This part has been cross-examined like that "I had got recorded in Exh.PA that regarding motive in exchange of cell phone and in lieu of that exchange Azhar Ali accused had also to pay Rs.1000/- to Ansar Ali PW. Confronted with Exh. PA wherein it was not so recorded". PW.1 Falak Sher has also improved upon his statement regarding the motive as "I had got recorded in Exh. PA regarding the motive that exchange of mobile phone and in lieu of that exchange Azhar Ali accused had also to pay Rs.1000/- to Ansar Ali. Confronted where it was so recorded". Further "I got recorded in my Exh. PA that Ansar Ali PW demands the said amount from Azhar Ali accused for 04/5 days after the exchange of this mobile phone but Azhar Ali accused refused to pay the said amount. Azhar Ali accused was passing through Chowk and at that time Ansar Ali PW was also present in Chowk as he was coming out from his house and at that time Ansar Ali PW demanded the amount from Azhar Ali accused and Ansar Ali PW grappled with Azhar Ali accused and slapped him and due to which accused persons had grudge and accused persons committed the murder of the deceased. Confronted with Exh.PA where in all above said portions of the statement of PW were not recorded". A very important aspect of the case has been noticed that Ansar Ali (PW.2), was the actual person against whom the motive, if any, existed. His statement was recorded by the learned trial court on 10.3.2011 about two years later to the incident and before the cross-examination, learned defence counsel demanded copy of his statement recorded during investigation by the I.O. about the incident. He during cross-examination admitted that he got recorded his statement, the portion of the cross-examination is reproduced as follows:-- "I got recorded my statement to the I.O. during investigation. At this stage, learned defence counsel has requested that copy of the statement of PW under section 161, Cr.P.C. has not been provided to him and if any statement of the PWs recorded, be delivered to him for the purpose of cross-examination. Learned ADPP was requested to deliver the statement of the PW to the defence counsel. After perusing the record, learned ADPP states that statement of PW under section 161, Cr.P.C. is not available on the record, therefore, the same cannot be provided to the learned defence counsel. Then the PW was suggested that he never appeared before the police nor he made statement before the I.O." But again another fact is very important not only about the motive but also to the entire incident, he has admitted that "it is correct that the police found the prosecution story false". Prosecution story is inclusive of motive for the practical purposes. P.W.3 Zulfiqar remained alien to the motive. CW.7 Jawwad Waseem, I.O. had testified that "During the course of investigation I came to the conclusion that the deceased of this case have no dispute, grudge or enmity with any of the accused of this case directly". Therefore, it is safely concluded that prosecution has miserably failed to prove its motive against the appellant.

20. Ocular account hinges upon the statement of PW.1 Falak Sher, PW.2 Ansar Ali and PW.3 Zulfiqar. PW.1 is real brother of Abdul Jabbar who is uncle of Ansar Ali (PW.2) and Zulfiqar (PW.3) has also very close relations with the remaining PWs. PW.1 in his cross-examination has admitted as "it is correct that all the private witnesses of this case are closely related inter se and with the deceased". This fact has also not been denied by PW.2 and PW.3. Therefore, there is no need to dilate upon it any more that PWs are related to the deceased and priorly there was criminal litigation between the parties, so, independent corroboration steps in especially when the incident reported to have taken place during the dark hours of night. Ansar Ali PW.2 in his cross-examination has admitted that police found the prosecution story false. Without any second thought, it is said that story was narrated by the complainant PW.1 and supported by the remaining eye-witnesses but if the story was found false, then it is construed that PWs either have not seen the incident or they narrated a false story. Again this fact has been found strengthened that during the investigation case was found false. The learned trial court has also not believed the statements of eye-witnesses qua Muhammad Hafeez, Iftikhar, Muhammad Usman and Kashif who were nominated in the FIR and their prosecution resulted in acquittal in the privately instituted criminal complaint based upon the original version of the complainant i.e. FIR (Exh.CW-4/A). It is noteworthy that co-accused Muhammad Hafeez (since murdered) attributively alleged raising of Lalkara before the main incident, thereafter, Muhammad Hafeez and Iftikhar Ahmad (since acquitted) made aerial firing, then Muhammad Usman caused fisticuffs to Ansar Ali PW.2 but the latter was not medically examined, then leaving Ansar Ali, Muhammad Usman, caught hold of the buttoned-collar (Greban) who intervened to save Ansar Ali but their specific attributions have even not been found true by the learned trial court while extending them benefit of doubt. Behaviourally presence of the eye-witnesses at the spot appears doubtful because single shot was allegedly received by the deceased but none of the PWs tried to apprehend any of the accused-persons at the spot; the way through which causing of bullet injury has been alleged by itself appears repellent to senses and unbelievable because the deceased received a pistol fire shot on the left side of his chest mid of left clavicle but it may be more relevant to describe the text of injury as "lacerated wound 1-1/2 x 1 cm going inverted margins located on the upper part of left chest below mid of left clavicle"'. On dissection, the head of bullet also injured left upper part of lungs. Skiagramic representation of the injury (Exh.PD/1) prepared by autopsying doctor Ishtiaq Ali, SMO (PW.4) has described that the locale of injury is closed to the neck while co-accused Muhammad Usman (since acquitted) had already caught 'Greban' of the deceased, then the fire shot was made by the appellant. The doctor during cross-examination has explicitly admitted that in his opinion the fire was straight, thus the physical situation of the attacker and the deceased can be demonstrated face to face and if it was so while the apertures of the wound did not have any signs of blackening or burning even tattooing, then medical jurisprudencically, it is interpreted that the shot was made beyond approximate stipulated distance which could bring signs of burning or blackening etc upon the inverted margins of the wound. As per prosecution's own case, Muhammad Usman co-accused (since acquitted) was also under the stake of death in the circumstances. Now, it may be beneficial to give certain excerpts of the statements of PW.1, PW.2 and PW.3 infra:-- PW.1 in his statement deposes that "Muhammad Usman co-accused (since acquitted) gave fist blows to Ansar Ali (PW.2), my nephew. Abdul Jabbar, the deceased step forwarded in order to rescue Ansar Ali (PW) upon which Muhammad Usman accused (since acquitted) caught hold Abdul Jabbar deceased from his collar and pulled him, then Usman accused directed his co-accused Azhar Ali to fire at Abdul Jabbar deceased, upon which Azhar Ali accused (appellant) fired with his 30 bore pistol hitting on the left side of chest of Abdul Jabbar deceased, upon which, Abdul Jabbar, the deceased fell down and succumbed the injury there and then". PW.2 Ansar Ali has testified .. "then Muhammad Usman accused (since acquitted) held Abdul Jabbar deceased from his collar and Azhar Ali accused (appellant) fired with his pistol 30 bore hitting on the left side of chest of Abdul Jabbar deceased due to which Abdul Jabbar fell on the ground and succumbed to the injury at the spot". PW.3 Zulfiqar Ali has deposed that ."Abdul Jabbar deceased step forwarded in order to rescue Ansar Ali PW; Muhammad Usman accused (since acquitted) pulled Abdul Jabbar deceased from his collar. Usman accused (since acquitted) exulted his co-accused Azhar Ali (appellant) to fire at Abdul Jabbar deceased, upon which Azhar Ali (appellant) fired with his 30 bore pistol which hit on the left side of chest of Abdul Jabbar deceased due to which Abdul Jabbar fell on the ground and succumbed to the injury there and then". The co-accused who had seized the deceased from his buttoned collar/Greban was bodily with close proximity with the deceased and he was at the same danger/risk of his life as the deceased. On account of this backdrop, the whole prosecution story appears to be doubtful as well as the presence of the PWs there so. As per prosecution's own version, the deceased was not ambushed to death with fire shot, when statement, of the appellant was recorded under section 342, Cr.P.C, question No.4 has also been formulated in the same seriatum as the PWs deposed. Another aspect which negates the prosecution's version that aerial firing was made by co-accused Muhammad Hafeez and Iftikhar Ahmad but no crime empty was taken into possession from the spot by the I.O. on the site inspection. The alleged incident took place in the crossing of village but no independent person of the vicinity has supported the prosecution version. Here it may not be irrelevant to refer to the statement of CW.9, Faisal Zulfiqar , S.P. CRO, Lahore who on cross-examination has admitted that "during the course of investigation independent persons of the locality of surroundings of the place of occurrence joined the investigation and they had not supported the prosecution version'. He has also admitted that "the persons appeared before him being impartial have categorically took a stance that case was politically motivated one and the existing MPA supported the complainant party". He also admitted that "version of Azhar Ali (appellant) before him that he did not fire at the deceased ."

21. Now, after having narrated the entire ocular account and by deliberation, the Court has come to the conclusion that PWs did not see the incident and their statements are not truthful, trustworthy, lacking intrinsic values, even otherwise independent persons have not supported the incident, therefore, without being paranoid, safely the ocular account is disbelieved.

22. As far as the medical evidence in this case is concerned, PW.4 doctor Ishtiaq Ali appeared who did autopsy on 27.5.2009, on the following day of incident, found solitary injury and the head of bullet was also recovered from the inner side of right chest cavity. The death of the deceased is an admitted fact with bullet injury but the shape of the injury has not been found compatible with the ocular version of the case for the reasons having been mentioned in detail in the aforesaid paragraphs and even otherwise in the circumstances need remains lesser to ponder over the medical evidence.

23. So far as recovery of 30 bore pistol from Azhar Ali appellant is concerned, on 26.6.2009, vide recovery memo Exh.CW5/A, the same lends no corroboration because no bullet cap was taken into possession and the report of the Ballistic Expert simpliciter is that it was in working condition which again does not support the prosecution version.

24. Circumstances having been discussed above, permit to seek guidance from the legal precedents rendered by the Hon'ble Supreme Court of Pakistan in case titled Ishtiaq Masih v. The State (2010 SCMR 1039) where it has been postulated in head note infra:- "Ss.302(b) and 427

Qatl-e-amd

Appraisal of evidence

presence of eye-witnesses at the time and place of incident was highly doubtful and it was very unsafe to rely upon them on capital charge

Recovery of blood stained "Chhuri" on the pointation of accused, being a corroborative piece of evidence, by itself was insufficient to convict him in the absence of substantive piece of evidence

Accused was acquitted in circumstances" In another case titled Nadeem alias Nanha alias Billa Sher v. The State (2010 SCMR 949) in which the Hon'ble Supreme Court of Pakistan has observed as follows. Its head notes A, B and F are jotted down:-- "S. 302(b)

Qatl-e-amd

Reappraisal of evidence

Benefit of doubt

Chance and interested witness

Imposition of sentence

Principles

Death sentence awarded to accused under S.302(b), P.P.C. by Trial Court was maintained by High Court

Validity

Complainant and other eye-witness were chance witnesses as they should not normally be present at the place of occurrence; it was difficult to rely upon statements of such witnesses being chance and interested witnesses

In order to convict accused for murder, court must be satisfied first that the murder was committed then it must be satisfied that accused had committed murder

Question of sentence demanded utmost care on the part of court dealing with life and liberties of accused person

Prosecution withheld evidence of an eye-witness and real son of deceased did not make any statement about motive

No independent witness of locality, which was a Bazar, where incident took place, joined and the same had made prosecution case doubtful

Any genuine doubt arising out of circumstances of the case should be extended to accused as of right and not as concession

Prosecution failed to prove case against accused beyond shadow of doubt

Supreme Court set aside conviction and sentence awarded to accused, who was acquitted of the charge

Appeal was allowed".

25. The court has concluded that prosecution has miserably failed to prove its case against the appellant beyond shadow of reasonable doubt, therefore, instant appeal is allowed, resultantly, impugned judgment to the extent of conviction of the appellant is set aside and he is acquitted of the charge by extending him the benefit of doubt. He is in jail, directed to be set at liberty, in a trice, if not required in any other case.

26. So far as Criminal Revision No.508 of 2013 filed by Falak Sher petitioner/complainant against the respondent/appellant Azhar Ali for enhancement of his quantum of sentence from life to death is concerned, the same for the reasons mentioned op-cit has become infructuous and the same stands dismissed accordingly.

27. As far as Criminal PSLA No.118 of 2013 filed by Falak Sher petitioner/ complainant against acquittal of respondents Nos.2 to 4 namely Muhammad Usman, Kashif and Iftikhar is concerned, the court is of the considered view that the learned trial court has rightly acquitted the respondents/accused as none of them has caused any injury to the deceased. Furthermore, learned counsel for the petitioner has not been able to persuade this court to differ the reasonings recorded by the learned trial Court in respect of acquittal of the respondents. In such circumstances, I do not want to grant leave to the petitioner against the acquittal of the co-accused/respondents. This petition is also dismissed. JK/A-43/L Appeal allowe