2016 P Cr (PLP)

ABDUL SAMI KHAN, J.

Appellant-Kamal-ud-Din alias Moon was tried in case FIR No.678/2005 dated 27.10.2005 for offence under section 302, P.P.C., registered at Police Station Civil Line, Rawalpindi by the learned Additional Sessions Judge, Rawalpindi who vide judgment dated 31.05.2010, convicted Kamal-ud-Din alias Moon under section 302(b), P.P.C. and sentenced him to death. He was also directed to pay compensation of Rs.2,00,000/- under section 544-A, Cr.P.C. to the legal heirs of the deceased, in default in payment of compensation to further undergo six months S.I.

2. Kamal-ud-Din alias Moon (appellant) has challenged his conviction and sentence through Criminal Appeal No.339 of 2010 titled as "Kamal-ud-Din alias Moon v. The State". The learned trial Court has sent a Murder Reference No.42/RWP of 2010 under section 374, Cr.P.C. for confirmation or otherwise of the death sentence of the appellant. We propose to decide both the matters through a single judgment.

3. Brief facts of the case as disclosed in the FIR Ex.PK which was recorded on the statement (Ex.PE) of the complainant namely Doctor Khan (PW-7) are as under: "That on 27.10.2005 in the morning, he along with Yousaf Khan son of Shahbaz Khan, his paternal cousin, came to Rawalpindi from their village for some piece of work. At about 11:30 a.m. he alongwith his cousin Yousaf Khan reached near Dhok Chiraghdin street No.5, Mosque Jamia Hanfia, when Yousaf Khan asked him to stay there as he was going to meet someone. He remained there and waited for Yousaf Khan. At about 12:30 p.m. Yousaf Khan was coming alongwith a boy wearing pant shirt on the bank of Nullah Lai. They were quarreling with each other on some matter. According to him, the said boy made fire upon Yousaf Khan with pistol which landed on his chest. Yousaf Khan fell in the deep area of Nullah Lai. The said boy again fired at the deceased which landed at the back side of head of the deceased. On listening his hue and cry, other people also gathered there but the said boy after brandishing pistol in air fled away towards the street. He alongwith other people saw Yousaf Khan who had succumbed to the injuries. At the end, Doctor Khan complainant (PW-7) has stated that he can identify the said body wearing pant shirt if came across him. Yousaf Khan has been murdered by unknown boy while making fire shots with pistol for unknown reasons."

4. After registration of the case, investigation was conducted by Muhammad Walayat Khan S.I. (PW-10) and after completion of the same, challan was submitted against Kamal-ud-Din alias Moon accused. Charge was framed against the accused on 21.02.2007 under sections 302/109, P.P.C. to which he pleaded not guilty and claimed trial.

5. To substantiate its version at the trial, the prosecution produced as many as eleven witnesses, whereas the statements of Muhammad Anayat constable were recorded twice as CW-1 and CW-2. Ocular account was furnished by Doctor Khan complainant (PW-7). He has supported the prosecution version. Muhammad Walayat Khan S.I. (PW-10) is the investigation officer. He testified about the investigation conducted by him.

6. Dr. Hafiz Muhammad Qasim Khan C.M.O. on 27.10.2005 had conducted postmortem examination on the dead body of Yousaf Khan son of Shahbaz Khan and found the following injuries:

1. A firearm entry wound 1 cm x 1 cm round and shape with inverted margins blackening and burning on mid of front of chest in between nipples.

2. A firearm entry wound 1 cm x 1 cm with inverted margin blackening and burning on left side of chin.

3. A firearm exit wound 1.5cm x 1.5cm with everted margin on left side of head 7cm from left ear.

4. A firearm entry wound 1.5cm x 1.5cm on lateral side of left thigh with inverted margin blackening and burning.

5. A firearm exit wound 2cm x 1.5cm on inner side of left thigh upper part.

7. According to the doctor cause of death is due to severe loss hypovolemic shock as a result of injuries Nos.1 and 2, which was sufficient in ordinary course of nature to cause death. All the injuries were ante-mortem and were caused by firearm weapon. Probable time that elapsed between injuries and death was immediate and between death and post mortem was within twelve hours. The post mortem report is Ex.PA.

8. After placing on record report of Chemical Examiner Ex.PR and report of Forensic Science Laboratory Ex.PS the prosecution closed its evidence.

9. The appellant in his statement recorded under section 342, Cr.P.C. professed his innocence and pleaded false implication in the case. In reply to question why this case against you and why the PWs deposed against you, stated as under: "I am innocent. My family, deceased and complainant belong to same village and caste (bradari). At the time of occurrence, I.O. Walayat Khan, kept male as well as female members of the family residing in the said area on the pretext of investigation and suspicion. Some family members including male and female were released by him from his illegal custody after receiving illegal gratification. My other family members including me were unable to fulfill his illegitimate demands as we belonged to poor family. He took us in his illegal custody on 02.11.2005 and kept in his illegal confinement on different places and kept on pressurizing us to arrange the amount, which was in lacs, or ready to face the music. My father compelled to initiate the Bailiff proceedings firstly on 08.11.2005 through the Court of learned ASJ, Rawalpindi Rana Masood Akhtar, for the recovery of Israr-ud-Din, Khurshid, Tasneem, Kiran Mashki Khan, Arshad Khan including one from the illegal detention. The said proceedings were proved to be fruitless as I.O. Walayat Khan received information about the said proceedings through his sources and was able to remove all of us from P.S. Civil Line and shifted to P.P. Morgah. On 24.11.2005, I, Khurshid and Israr were recovered luckily through High Court Bailiff from police post Morgah from illegal confinement of I.O. Walayat Khan who was called to the P.P. Morgah but unable to produce any zimni regarding our arrest on the demand of High Court bailiff. The I.O. Walayat Khan in order to save his own skin from the legal proceedings summoned the complainant from Kohat who under his pressure, undue influence, coercion and on his asking falsely implicated us in the present case. The I.O. did not stop here, he out of his grudge, kept on summoning my father and other family members upon which petition under section 22 A, Cr.P.C. was filed against him upon which learned ASJ directed him not to cause harassment after which he was got restrained from his illegal activities. Copies of High Court Bailiff proceedings in Cr. Misc. No. 65/H/2005 alongwith the report is attached herewith for the kind perusal of this Honourable Court." The appellant neither opted to record his statement under section 340(2), Cr.P.C. in disproof of allegation leveled against him by the prosecution nor produced any witness in his defence.

10. At the end of the trial, after thrashing the entire evidence and evaluating the arguments advanced by the learned counsel for the parties in support of their respective versions, learned trial Court proceeded to convict and sentenced the appellant as mentioned in paragraph No.1 of this judgment.

11. Learned counsel for the appellant, in support of this appeal, contends that the appellant is not named in the first information report and he has falsely been implicated in this case through a supplementary statement recorded by the complainant; the appellant is absolutely innocent in this case and the evidence produced by the prosecution suffers from material irregularity; the complainant and the appellant are the residents of same village and they were known to each other prior to the alleged occurrence; that the alleged witness of the occurrence i.e. Doctor Khan complainant (PW-7) is chance witness because he is not resident of the place of occurrence and even he has not offered any plausible explanation for his presence at the spot at the relevant time of alleged occurrence; this witness was confronted with his previous statement and the improvements were brought on the record; the complainant/eye-witness is closely related to the deceased and also inimical towards the appellant whereas no independent person has supported the prosecution case, therefore, the conviction of the appellant cannot be maintained on sole statement of the complainant; there is a conflict between the FIR and the medical evidence as according to the FIR, deceased Yousaf Khan received two firearm injuries, whereas according to postmortem examination report, there are three firearm injuries on the body of the deceased; the recovery of pistol was planted upon the appellant in order to strengthen the prosecution case; the prosecution has failed to prove motive against the appellant because as per complainant's own showing, the appellant committed the murder of Yousaf Khan without any motive and it is unbelievable that the appellant had committed the murder of deceased without any motive. Lastly, learned counsel for the appellant contended that the prosecution has miserably failed to prove its case beyond any shadow of doubt and the evidence so produced is not confidence-inspiring and is not worthy of credence, therefore, the appellant deserve clean acquittal.

12. On the other hand, learned Law Officer appearing on behalf of the State assisted by learned counsel for the complainant opposed the submissions made by learned counsel for the appellant and submitted that the matter was reported to the police without any element of deliberation and consultation; the occurrence was reported to the police in a manner as it took place; the appellant is the single accused charged directly in the promptly lodged FIR with specific role of causing firearm injuries to the deceased Yousaf Khan and the ocular account is duly corroborated by the medical evidence; apart from confidence inspiring evidence of the eye-witness, there is strong corroborative evidence on the file of this case in the shape of the weapon of offence recovered on the pointing out of appellant i.e. pistol, the report of Chemical Examiner (Ex.PR) and the report of Forensic Science Laboratory (Ex.PS); Doctor Khan complainant (PW -7) was present at the time of occurrence and inspite of lengthy cross-examination, the defence had failed to demolish/dislodge his presence at the spot; the prosecution case stands proved from all corners against the appellant, the ocular account is fully corroborated by the medical evidence; the PWs had no enmity with the appellant to falsely depose against him during trial; the accused had repeated the fire shots, which indicates his intention to murder Yousaf Khan; the presence of Doctor Khan complainant/eye-witness at the spot is quite natural and is duly proved by his statement recorded as PW-7; the appellant has failed to bring on record anything on the basis of which it can be construed that eye-witness has made false statement against the appellant or that he has become false witness on account of ulterior motive; the substitution of the appellant for the real culprits is a very rare phenomenon and it cannot be imagined that one can involve an innocent person in such a heinous offence by leaving the real culprits; when the prosecution proved its case through reliable and trustworthy evidence beyond any doubt inadequacy or weakness of motive or where motive was alleged but not proved, would become immaterial and would not adversely affect prosecution case. Lastly submit that as there is no mitigating circumstance in favour of the appellant, so the learned trial Court had rightly sentenced him to death and prayed for maintaining the conviction and sentence awarded to the appellant.

13. We have considered the arguments advanced by learned counsel for the defence counsel as well as the learned Law Officer and have also gone through the entire record with their valuable assistance.

14. This unfortunate incident, wherein, Yousaf Khan lost his life, as per FIR (Exh.PK), took place on 27.10.2005 at 12:30 p.m. within the area of "Dhoke Chiragh Din near Nullah Lai" within the jurisdiction of Police Station Civil Line, Rawalpindi, the matter was allegedly reported to the police by Doctor Khan complainant (PW-7) at 02:50 p.m. when the formal FIR (Ex.PK) was registered, whereas, distance between the place of occurrence and the Police Station is 3 kilometers.

15. First question for determination before us is whether the crime was reported to the police at the time mentioned by the complainant in the FIR. We have noted that postmortem examination on the dead body of Yousaf Khan (deceased) was conducted on 27.10.2005 at 11:50 p.m. which is evident from the Postmortem Report (Exh.PA) but there is no explanation for this inordinate delay. Therefore, it can safely be presumed that the incident was not reported to the police at the time mentioned in the FIR which has created a doubt in the veracity of the prosecution story.

16. Ocular account in this case has been furnished by sole witness namely Doctor Khan complainant (PW-7). We would like to weigh the eye-witness account offered by Doctor Khan complainant (PW-7) in the form of his statement made before the learned trial Court. In, FIR (Ex.PK), the complainant has simply stated that on 27.10.2005 in the morning, he alongwith Yousaf Khan son of Shahbaz Khan, his paternal cousin, came to Rawalpindi from their village for some piece of work. At about 11:30 a.m. he alongwith his cousin Yousaf Khan reached near Dhoke Chiraghdin street No.5, Mosque Jamia Hanfia, when Yousaf Khan asked him to stay there as he was going to meet someone. He remained there and waited for Yousaf Khan. At about 12:30 p.m. Yousaf Khan was coming along with a boy wearing pent shirt on the bank of Nullah Lai. They were quarreling with each other on some matter. According to him, the said boy made fire upon Yousaf Khan with pistol which landed on his chest. Yousaf Khan fell in the deep area of Nullah Lai. The said boy again fired at the deceased which landed at the back side of head of the deceased, whereas in his examination in chief, he stated that he saw Yousaf Khan coming along with Kamal-ud-Din on the bank of Nullah Lai and they were exchanging hot words and as they came near, Kamal-ud -Din accused made fire upon Yousaf Khan with .30 bore pistol. Moreover, in his examination in chief, the complainant alleged that the appellant inflicted three firearm injuries on the body of the deceased. This version qua the incident before the learned trial Court was different than that of his version given by him in the FIR. The complainant was confronted with his previous statement and the improvements made by him during the trial were brought on record during course of his cross-examination and it appears that these improvements were made by him in order to bring ocular account in line with the medical evidence. Relevant portion of complainant's cross-examination reads as under:- "I had not recorded any statement to the police. FIR was recorded on my statement. After recording my statement under section 154, Cr.P.C. my no statement was recorded. I had recorded in my statement under section 154, Cr.P.C. that I saw Kamal-ud-Din coming along with Yousaf. (Confronted with Ex.PE not the name of Kamal-ud-Din recorded). I had not recorded in my statement Ex.PE the name of Kamal-ud-Din who made fire. I recorded in the statement under section 154, Cr.P.C. that Kamal-ud-Din made further two fires (confronted with Ex.PE not so recorded) ........ I recorded that one unknown boy because of unknown motive murdered Yousaf Khan by making pistol fire upon him......

17. We may mention here that the explanation offered by Doctor Khan complainant (PW-7) for his presence at the spot at the relevant time of occurrence is highly improbable as he is resident of "Sarogal falling in the jurisdiction of Police Station Saddar Kohat", whereas the incident took place in "Dhoke Chiragh Din near Nullah Lai, Rawalpindi". Although he has claimed to have accompanied with Yousaf Khan (deceased) in connection with some piece of work at Rawalpindi, but has failed to produce any evidence in this respect and has failed to mention the nature of work for which he had come to Rawalpindi. Therefore, we are constrained to hold that this witness has failed to prove his presence at the spot to witness the occurrence and in the given circumstances of the case, presence of Doctor Khan complainant (PW-7) at the spot at the relevant time of occurrence becomes doubtful and in our view his testimony does not inspire confidence. In this regard, reference is made to the case of Nadeem @ Nanha @ Billa Sher v. The State (2010 SCMR 949), wherein the Apex Court has observed as below:- "The complainant PW4 and Muhammad Afzaal PW5 are chance witnesses as they should not normally be present at the place of occurrence and it is difficult to rely upon their statements being chance and highly interested witnesses."

18. The question of placing reliance on the materially improved statement of a witness came up for consideration before Hon'ble Supreme Court of Pakistan in the case of Muhammad Rafique and others v. The State and others (2010 SCMR 385), wherein, at page 396, the learned Apex Court of the country, has been pleased to observe as under:- .....This Court in the case of Saeed Muhammad Shah v. State (1993 SCMR 550), observed that if a witness improves his statement on material aspects of the case then such improvement is not worthy of reliance and the evidence of such witness requires corroboration. In the case of Khalid Javed v. State (2003 SCMR 1419), while reiterating the above rule, it was further observed that such witness is to be considered to be wholly unreliable and it is not advisable to place explicit reliance upon his evidence".

19. Apart from what has been discussed above, it is very astonishing for us that the complainant Doctor Khan (PW-7) in his statement recorded under section 154, Cr.P.C. has straightway mentioned that Yousaf Khan deceased was coming alongwith a boy wearing pant shirt on the bank of Nullah Lai, who was quarreling with him on some matter and he (complainant) can identify the said boy wearing pent shirt if came across him. Yousaf Khan (deceased) has been murdered by unknown boy while making fire shots with pistol for unknown reasons. However, in his cross examination he had admitted as under:- .....It is correct that myself, the deceased as well as the accused all belong to the same village. It is correct that we had been together in the past on the eves of sorrow as well as happiness......"

20. From the above position, it is evident that the complainant knew the appellant before the incident, therefore, if he had seen him at the time of incident, when he claimed that he was present at the time of occurrence, it does not appeal to reason that he would have not nominated the accused. This improvement creates serious doubt about his veracity and credibility. Further he deposed that he named the appellant Kamal-ud-Din alias Moon in the FIR but he was confronted with it and it was found that he did not name the appellant. This shows that this sole witness suppressed the truth and spoke lie and has no sanctity of Oath. Furthermore, according to the FIR the alleged occurrence was witnessed by a number of persons, but surprisingly enough no independent eye-witness has been produced by the prosecution.

21. So far as recovery of .30 bore pistol (P-11) from Kamal‑ud-Din (appellant) is concerned, as we have already disbelieved the ocular account furnished by Doctor Khan (sole eye-witness), therefore, it is of no avail to the prosecution. Even otherwise, this piece of evidence is merely of a supportive nature.

22. Now we would like to discuss the medical evidence brought on record through the statement of Dr. Hafiz Muhammad Qasim Khan (PW-1) who conducted the postmortem examination on the dead body of Yousaf Khan (deceased) and prepared Postmortem Report (Exh.PA) wherein he has noted three entry wounds on the dead body of Yousaf Khan (deceased), whereas according to the FIR the deceased has received only two injuries. This fact clearly reflects that there is material conflict between the ocular account and the medical evidence, which is extremely fatal to the case of the prosecution.

23. As far as the motive is concerned, the prosecution has not alleged any motive behind the commission of alleged occurrence.

24. Since occurrence was committed by un-known persons, therefore, holding of identification test was essential as held in "Farman Ali v. The State" (1997 SCMR 971) and "State through Advocate-General, Sindh, Karachi v. Farman Hussain and others" (PLD 1995 SC 1). Admittedly, no such identification test was held. Pursuant to above, the implication of appellants by way of supplementary statement though banked upon with vehemence cannot advance the plea of prosecution to prove the culpability of appellant.

25. It is universally recognized principle of law that conviction can only be based upon unimpeachable evidence and certainty of guilt and any doubt arising in the prosecution case must be resolved in favour of the accused not as a matter of grace but of right. In Ayub Masih v. The State (PLD 2002 Supreme Court 1048), at page 1056, while quoting a saying of the Holy Prophet (PBUH) that `mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent", and making reference to the maxim, that 'it is better that ten guilty persons be acquitted rather than one innocent person be convicted', the learned Apex Court of our country has been pleased to observe as under:- ...... It is hardly necessary to reiterate that the prosecution is obliged to prove its case against the accused beyond any reasonable doubt and if it fails to do so the accused is entitled to the benefit of doubt as of right. It is also firmly settled that if there is an element of doubt as to the guilt of the accused the benefit of that doubt must be extended to him. The doubt of course must be reasonable and not imaginary or artificial. The rule of benefit of doubt, which is described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". In simple words it means that utmost care should be taken by the Court in convicting an accused. It was held in The State vs. Mushtaq Ahmad (PLD 1973 SC 418) that this rule is antithesis of haphazard approach or reaching a fitful decision in a case. It will not be out of place to mention here that this rule occupies a pivotal place in the Islamic Law and is enforced rigorously in view of the saying of the Holy Prophet (P.B.U.H.) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent".

26. In the light of what has been discussed above, the prosecution case as to the veracity and credibility of the eye-witness is full of contradictions and doubts, the benefit of which must go to the appellant. Consequently, this appeal is allowed, the conviction and sentence of the appellants is set-aside and the appellant is acquitted from the charges by extending him the benefit of doubt. He is behind the bars and shall be released forthwith if not required in any other case. Murder Reference is answered in the NEGATIVE and sentence of death is NOT CONFIRMED. HBT/K-38/L Appeal allowed.