2022 P Cr (PLP)

SYED SHAHHAZ ALI RIZVI, J.

This judgment shall dispose of Criminal Appeal No.1463 of 2009 filed by Muhammad Tariq and Munir Ahmad, appellants against their convictions and sentences awarded to them by the learned trial court and Suo Motu Criminal Revision No.33 of 2010 wherein, notice was given to the appellants as to why their sentence should not be enhanced as required under section 302(b), P.P.C. as both have arisen out of same judgment dated 31.07.2009 passed by the learned Additional Sessions Judge, Bhalwal in case FIR No.308 dated 19.07.2008, offence under sections 302, 109, 148 and 149, P.P.C. registered at Police Station Bhera District Sargodha whereby, Muhammad Tariq, appellant was convicted under section 302(b), P.P.C. and sentenced to imprisonment for life with fine of Rs.1,00,000/- and in default thereof, to undergo simple imprisonment for six months. He was also ordered to pay Rs.50,000/-, compensation to the legal heirs of the deceased as envisaged under section 544-A of the Code of Criminal Procedure, 1898 and in default thereof, to undergo simple imprisonment for three months. Munir Ahmad, appellant was convicted under section 302(b), P.P.C. read with section 34, P.P.C. and sentenced to rigorous imprisonment for fourteen years with fine of Rs.50,000/- and in default thereof, to undergo simple imprisonment for three months. He was also ordered to pay Rs.25,000/-, compensation to the legal heirs of the deceased as envisaged under section 544-A of the Code of Criminal Procedure, 1898 and in default thereof, to undergo simple imprisonment for one month. The appellants were, however, extended the benefit of section 382-B of the Code of Criminal Procedure, 1898. The learned trial court, however, through the same judgment, acquitted Muhammad Farooq, Khalid Mehmood, Muhammad Ashraf and Sardar, co-accused of the appellants.

2. Per prosecution, the facts of the case, as disclosed by Dost Muhammad, complainant (PW-8) in his complaint (Exh-PP) on the basis of which formal crime report (Exh-PV) was registered, are that on 19.07.2008 at 09.00 a.m., Muhammad Tariq and Munir Ahmad, appellants along with their co-accused while armed with firearms made murderous assault on the life of Muhammad Ashraf, maternal nephew of the complainant. The specific allegation against the appellants is that Muhammad Tariq while armed with .12 bore double barrel gun shot fires at Muhammad Ashraf which landed on his right thigh whereas, Munir Ahmad while armed with .12 bore single barrel gun made fire that also landed on right thigh of Muhammad Ashraf. Thereafter, the accused persons fled away from the spot. Muhammad Ashraf was shifted to Civil Hospital, Bhera from where he was referred to Civil Hospital, Sargodha where he succumbed to the injuries. The motive behind the occurrence, as disclosed by the complainant, is that Munir Ahmad, appellant etc. were having suspicion that Ghulam Mustafa, maternal nephew of the complainant had abducted the daughter of Munir Ahmad, appellant.

3. Muhammad Tariq and Munir Ahmad, appellants were arrested in this case by Zafar Abbas, S.I. (PW-10), the investigation officer on 13.08.2008. Muhammad Tariq, appellant, on 28.08.2008, while in police custody, after making disclosure, got recovered gun (P-4) along with five live cartridges (P-5/1-5) which was taken into possession vide recovery memo Exh-PN. He also got recovered motorcycle Yamaha bearing registration No.LOM-5981, taken into possession vide recovery memo Exh-PM. After completion of investigation, report under section 173 of the Code of Criminal Procedure, 1898 was submitted. The learned trial court, after observing pre-trial codal formalities, framed the charge against them on 26.03.2009 to which they pleaded not guilty and claimed trial.

4. The prosecution, in order to prove its case, produced as many as eleven witnesses during the trial. Dost Muhammad, complainant (PW-8) and Muhammad Ariz (PW-9) furnished ocular account of the occurrence. Munir Ahmad, ASI (PW-4) is the witness of recovery of gun (P-4) along with five live cartridges (P-5/1-5) and motorcycle from Muhammad Tariq, appellant. The medical evidence was furnished by Dr. Hafiz Noor ul Aileen, Medical Officer (PW-1) who, on 19.07.2008 at 11.55 a.m., medically examined Muhammad Ashraf (deceased), in injured condition, and noted six firearm injuries, three entry and three exit, wounds on his person. On the same day, after the death of Muhammad Ashraf, he, at 06.00 p.m., also conducted post mortem examination on the dead body of Muhammad Ashraf. In his opinion, the death occurred due to shock and haemorrhage under collective effect of all the injuries which were sufficient to cause death in ordinary course of nature. All the injuries were ante mortem and caused by firearm. The probable duration between injuries and death was within seven hours whereas, between death and postmortem examination, three hours. Zafar Abbas, SI (PW-10) is the investigation officer of this case. Zafar Yab Hussain, Revenue Patwari (PW3) prepared scaled site plans (Exh-PL and Exh-PL/1) of the place of occurrence whereas, rest of the witnesses are formal in nature. The learned Assistant District Public Prosecutor gave up Muhammad Mumtaz constable, Ghulam Muhammad, Saeed and Muhammad IIussain and after tendering in evidence report of Chemical Examiner (Exh-PW) and that of the Serologist (Exh-PX) closed the prosecution evidence.

5. The statements of the appellants under section 342 of the Code of Criminal Procedure, 1898, were recorded wherein, they refuted the allegations levelled against them and professed their innocence. They further maintained that they had falsely been involved in this case due to previous enmity. Neither they opted to appear as their own witness on oath as provided under section 340(2) of the Code of Criminal Procedure, 1898 in disproof of the allegations levelled against them nor did they produce evidence in their defence.

6. The learned trial Court vide its judgment dated 31.07.2009, found the appellants guilty, convicted and sentenced them as mentioned above.

7. We have heard the arguments of learned counsel for the appellants, learned Deputy Prosecutor General and also scanned the available record with their assistance.

8. Admittedly, all the prosecution witnesses are closely related to the deceased Muhammad Ashraf. Similarly, even per crime report (Exh-PV) the witnesses Muhammad Aziz (PW-9) and Muhammad Hussain (given up PW) reached at the place of occurrence per chance. During his cross-examination, Muhammad Aziz (PW-9) admits that he had stated the same in his statement before the investigation officer and he along with Muhammad Hussain reached at the place of occurrence per chance. His residence as admitted by himself during his cross-examination was situated at a distance of 6/7 kilometers from the place of occurrence. Likewise, complainant Dost Muhammad (PW-8) while responding to a question with regard to justification of his presence at the place of occurrence seems confused that is evident from the following excerpt from his statement:- "...We had purchased building materials of various type from the shop of one 'Muhammad Ali Kingra' After purchasing the building materials we had asked to load the said material on a `Donkey cart' who had gone separately. Again said we had just ordered the shopkeeper to send the said material on a `Donkey cart'..." With respect to the credibility of his claim qua his presence at the crime scene, it has also been noticed that though per crime report, Dost Muhammad, complainant (PW-8) took the deceased Muhammad Ashraf, then in injured condition, to Civil Hospital, Bhera while Muhammad Aziz (PW-9) also claims that he along with Dost Muhammad and Muhammad Hussain took Muhammad Ashraf, in injured condition, to RHC, Bhera where, after medico legal examination, he was referred to DHQ Hospital, Sargodha who died there but perusal of medico legal examination certificate (Exh-PA) transpires that Muhammad Ashraf came to hospital at 11.55 a.m. and in the relevant column of name of relative or friend neither Dost Muhamad, Muhammad Aziz nor Muhammad Hussain is written. This shows that neither the complainant nor PW-9, closely related to the deceased, were accompanying him in the hospital then, i.e. after about three hours of the occurrence. Regarding the process of shifting of Muhammad Ashraf, in injured condition, in hospital, complainant Dost Muhammad (PW-8) states as under:- "It took me one hour for arrangements for shifting of the injured to the hospital at the place of occurrence, and it took further 1/2 (half) hour to us to reach the hospital, Bhera..." But the document i.e. medico legal examination certificate (Exh-PA) reflects otherwise as according to the same, the injured arrived in the hospital at 11.55 a.m. The delay in patient's transportation to the hospital also reflects adverse to the presence of the eye-witnesses at the relevant time. It is also to be kept in mind at this juncture that after the dispatch of complain (Exh-PP) at 12:30 p.m., the FIR was drafted within five minutes i.e. at 12:35 p.m. meaning thereby, that the distance between the hospital and the police station is very short leading us to infer that the hospital as well as the police station were situated at a distance of just eighteen kilometers from the place of occurrence that itself is situated at a metaled road as is evident from the scaled site plan.

9. The statements of both Dost Muhammad, complainant (PW-8) and Muhammad Aziz (PW-9) also carry material improvements. The relevant parts of the statement of Dost Muhammad, complainant (PW-8) reads as under: - "I had stated in FIR/Complaint Ex/P-P that the PWs had told me about the abetment. Confronted with Ex/P-P where it is not so recorded. I had not stated in Ex/P-P that I will produce the witnesses of abetment later-on. Confronted with Ex-P-P where it is so recorded. I had not given the details of abetment regarding place of abetment time of abetment and date of abetment in my statement Ex/P-P... I had stated in Ex/P-P that Muhammad Aziz and Muhammad Hussain PWs had reached the place of occurrence per chance...1 had not stated in Ex.P-P that when we reached in area of Naba the occurrence took place. Confronted with Ex/P-P where it is so recorded...I had not stated in Ex/P-P that Tariq accused had fired shots with his double barrel gun which hit on the right thigh of the deceased. Confronted with Ex/P-P where it is so recorded...". Similarly, Muhammad Aziz (PW-9) made the following improvement in his statement: - "....I had not stated in my statement before the I.O. that the occurrence had taken place in the area of village Naba. Confronted with Ex/D-A where it is so recorded...I had not stated any reason of my presence at the place of occurrence in my statement before the I.O. I had stated in my statement before the I.O. that I along with Muhammad Hussain PW had reached at the place of occurrence per chance... " It is by now a well established proposition of law that if a witness dishonestly and materially improves upon his earlier statement that improvement renders the credibility of his statement doubtful. Reference in this respect is made to the case of Khalil Javed and another v. The State (2003 SCMR 1419) wherein, the Hon'ble Supreme Court of Pakistan, at page 1438, was pleased to observe as under:- "18. ...In this behalf it may be observed that according to administration of criminal justice a witness who makes glaring contradictions, omissions and improvements in his Court statement qua the statement recorded by him before the police either as per the contents of the FIR if he is complainant or if he is a witness and his statement is recorded under section 161, Cr.P.C. such witness. is to be considered to be wholly unreliable witness and it is not advisable to place explicit reliance upon his evidence..." Similar view was also taken by the Hon'ble Supreme Court of Pakistan in the cases of Farman Ahmed v. Muhammad Inayat and others (2007 SCMR 1825), Akhtar Ali and others v. The State (2008 SCMR 6) and Muhammad Rafique and others v. The State and others (2010 SCMR 385).

10. The crime report (Exh-PV) reveals that as per the complainant, Muhammad Ameer co-accused made a fire shot with his .12 bore gun that hit Muhammad Ashraf, deceased on his right thigh Urdu text reads as under: - This shows that more than one pellets hit the deceased at the said seat of injury. By the same token, he also states that This shows that Muhammad Munir, appellant caused an injury on the right thigh of Muhammad Ashraf, deceased while Muhammad Tariq, appellant caused more than one injury with repeated fire shots that hit on right thigh of Muhammad Ashraf and similarly, Muhammad Ameer shot fire hitting pellets on right thigh of Muhammad Ashraf but as is evident from the above reproduced parts of confronted areas of the improved statements and the examination-in-chief of both the witnesses, they have tried to bring the ocular account in line with the medical evidence while making improvements in the most relevant part of the occurrence which has made the credibility of their depositions seriously doubtful and discredited the same. Besides this, it is also worth mentioning here that deceased Muhammad Ashraf, as per statement of Hafiz Noor ul Amin, Medical Officer (PW-1), sustained only a single firearm entry wound on his right thigh i.e. injury No.1 while injuries Nos.2 and 3 available on his right thigh are exit wounds. As per FIR, three persons Muhammad Ameer (since acquitted), Muhammad Tariq and Muhammad Munir, appellants have separately caused entry wound available on the person of deceased i.e. injury No.1. Who actually caused injury No.1 out of the three accused is a question, that in the circumstances of this case, remained unanswered hence, benefit of this doubt is also to be extended to the appellants. In this regard, it has also been noticed that as per Zafar Yab Hussain, Revenue Patawari (PW-3), the appellants caused injury to the deceased from a distance of about one Karam. Muhammad Aziz (PW-9), during his cross-examination, also states that first and second fires were shot on the deceased from the distance of 2/3 feet but the Medical Officer (PW-1), during his cross-examination, states as under: - "...It is correct that no blackening, buring or charing was present on any of the entry wound which is suggestive of the fact that fire was made from a considerable distance..." This leads us to hold that the ocular account is discrepant with the medical evidence.

11. Muhammad Farooq and Khalid, co-accused who also allegedly made firing at the crime scene faced the trial and have been acquitted of the charge by the learned trial court. Similarly, Muhammad Ameer and Mazhar, co-accused (Proclaimed Offenders), as admitted, by learned counsel for the complainant and the learned Prosecutor have also been acquitted of the charge during a subsequent separate trial because of the compounding statements of the legal heirs of the deceased. Even Sardar Muhammad and his son Muhammad Ashraf, co-accused also stand acquitted of the charge.

12. So far as the recovery of gun (P-4) is concerned, Zafar Abbas, SI (PW-10), the investigation officer, during his cross-examination, admits that the appellants kept claiming their innocence during the investigation and no crime weapon could be recovered from the possession of Muhammad Munir, appellant though recovery of a shot gun (P-4) has been shown effected from Muhammad Tariq, appellant but it is admitted by the investigation officer that the same was done on the last day of physical custody of Muhammad Tariq, appellant with the investigation agency i.e. on 28.09.2008 and similarly, the same was effected from a house jointly possessed by the appellant and his other family members. No report of the Punjab Forensic Science Agency even with regard to the mechanical status of the gun (P-4) is available on record. These facts not only discredit the veracity of recovery proceedings but also make the recovery of gun, inconsequential. The motorcycle allegedly recovered on the pointation of Muhammad Tariq, appellant was never got proved in evidence during the trial.

13. As regards motive part of the occurrence set up by the complainant Dost Muhammad (PW-8), the same has not even been supported by Muhammad Aziz (PW-9) who is also a relative of the complainant and the deceased. Even otherwise, the prosecution remained unable to establish any link of deceased Muhammad Ashraf with the abduction of a lady by Ghulam Mustafa, his brother 2/3 months prior to this case and the prosecution case is also silent about the fact that if Muhammad Ashraf, deceased has been murdered for the motive alleged then why real uncle of said Ghulam Mustafa, Dost Muhammad, complainant (PW-8) was left unscratched while as per prosecution's own case, both reached at the place of occurrence on foot when they were intercepted by the assailants.

14. The whole supra discussion with regard to almost every factual aspect of the case in hand leads us to an irresistible conclusion that the prosecution remained fail to prove its case against the appellants beyond the shadow of a reasonable doubt. There remains no cavil about the proposition that if there is a single circumstance which creates reasonable doubt regarding the prosecution case, the same is sufficient to give benefit of the same to the accused, whereas, in the instant case we have observed many, discussed supra. The Hon'ble Supreme Court of Pakistan in the case of Ayub Masih v. The State (PLD 2002 SC 1048) was pleased to observe as under: - "...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"..."

15. In the light of above discussion, we accept Criminal Appeal No.1463 of 2009 filed by Muhammad Tariq and Muhammad Munir (appellants), set aside their convictions and sentences recorded by the learned trial court and acquit them of the charge leveled against them by extending them the benefit of doubt. They are on bail, their bail bond is discharged and sureties are released.

16. For all discussed above, Suo Motu Criminal Revision No.33 of 2010 is dismissed. The notice issued to the respondents therein is hereby withdrawn. It is however, made clear that the learned trial court has wrongly sentenced the appellant Muhammad Munir to fourteen years rigorous imprisonment under section 302(b), P.P.C. when this penal provision does not carry the sentence awarded as it is punishable with death or imprisonment for life as ta'zir, only. JK/M-67/L Order accordingly.