2016 P Cr (PLP)

MAZHAR IQBAL SIDHU, J.

This judgment will dispose of captioned criminal appeal filed by appellant Ameer Hamza who was convicted by learned Addl. Sessions Judge, Pattoki in private complaint titled Manzoor Ahmad v. Ameer Hamza alias Iftikhar etc filed under sections 302/324/148/149/109/34 of P.S. Sarai Mughal vide impugned judgment dated 27.3.2012 and sentenced infra:- i) Life imprisonment under section 302(b), P.P.C. as Ta zir with payment of Rs.1,00,000/-as compensation to the legal heirs of deceased Ashraf alias Bhaphi under section 544-A, Cr.P.C. and in default whereof to further undergo S.I. for six months.

2. The doleful story as garnered by complainant Manzoor Ahmad (PW.01) in private criminal complaint Exh.PA is that his brother Ashraf alias Bhapi deceased, one month prior to the occurrence i.e. 26.12.2004 injured Suriya Bibi wife of Muhammad Ghaffar and for compromise Rustam Ali son of Kaley Khan called the complainant and his brother Ashraf alias Bhaphi in his Haveli situated at "Pepli Wala Khoh". On the day of occurrence, complainant, his brother Ashraf alias Bhapi, Muhammad Ameer and Muhammad Arif son of Maskeen went towards "Pepli Wala Khoh". Ashraf alias Bhapi was 50/60 feet ahead of them and when they reached near the sugarcane crop of Muhammad Saleem, abruptly, Ameer Hamza (appellant) armed with .44 bore, Muhammad Khalil armed with gun, Rasheed armed with Sota and Khalid (since all acquitted) armed with carbine emerged there. Accused Rasheed raised Lalkara that Ashraf alias Bhapi be taught a lesson for injuring Suriya Bibi and thereafter Ameer Hamza etc resorted to firing at Ashraf alias Bhapi with their respective weapons. Ashraf alias Bhapi ran towards the field of sugarcane crop then Ameer Hamza appellant made fire shot with his rifle hitting him (Ashraf alias Bhapi) on left side of his back and went through and through. Ashraf alias Bhapi fell down. Thereafter accused Khalil fired at Ameer Hamza appellant with his gun hitting him on his right thigh and injured him. Accused took away Ameer Hamza from the spot while raising Lalkara and when the complainant etc. attended Ashraf alias Bhapi, he succumbed to the injuries at the spot. It was alleged that the occurrence had taken place on the abetment of Idrees accused. The occurrence was witnessed besides the complainant, PWs Muhammad Ameer and Muhammad Arif. Further alleged that accused persons in prosecution of their common object/intention murdered the brother of the complainant.

3. Initially FIR No.500/06 dated 26.12.2006 under sections 302/324/109/34, P.P.C. P.S. Sarai Mughal was registered. Since the accused were influential persons and they in connivance with the local police as well as I.O. got declared some of the accused persons as innocent namely Muhammad Khalil, Rasheed, Muhammad Idrees and Khalid. Feeling dis-satisfied/disagreed, the complainant has filed private complaint Exh.PA.

4. After recording cursory evidence and after the receipt of inquiry report under section 202, Cr.P.C., learned trial court vide order dated 21.3.2007 summoned the accused persons to face the trial.

5. Learned trial court after observing all the pre-trial codal formalities, indicted the appellant and his co-accused (since acquitted) to which they did not plead guilty and claimed trial. Thereafter, the prosecution was directed to lead evidence in order to substantiate the charge.

6. The prosecution in order to prove its case produced 10 witnesses in all, out of them 05 witnesses were examined as PWs whereas 05 were examined as CWs. Dr. Mehmood Ahmad Nisar (PW.5) deposed that on 27.12.2006 he conducted post mortem examination on the dead body of deceased Muhammad Ashraf alias Pappi and observed as under:‑ INJURIES: i) Lacerated wound of 1 cm x 1 cm, margin inverted and oval in shape on left side of chest on lateral side 4 cm. Lateral to left nipple and 10 cm armpit. ii) Lacerated wound of 1.5 cm x 1.5 cm, margins everted on back chest 9 cm from mid line and 2 cm below the scapula on right side of back chest. OPINION. In his opinion, the injuries were ante mortem in nature and caused by firearm weapons. The deceased had died due to haemorrhage and shock and perforation of vital organs. In his opinion, the injury is sufficient to cause death in ordinary course of nature. Probable time that elapsed between injuries and death was sudden and between death and post mortem was 13 to 18 hours. Exh.PG was the correct carbon copy of post mortem report and Exh.PG/1-2 was the pictorial diagrams of injuries, the same bore his signatures.

7. Complainant by tendering in evidence reports of Chemical Examiner Exh.PK and that of Serologist Exh.PL and report of FSL vide statement dated 26.11.2011 closed the prosecution case.

8. Thenceforth statement of the appellant was recorded under section 342, Cr.P.C. wherein he negated the charge and professed his innocence. He did not opt to make statement on oath as permissible under section 340(2), Cr.P.C. However, he opted to produce defence evidence. Thereafter, he by tendering in his defence certain documents Exh.DH to Exh.DQ vide his statement dated 15.3.2012 closed the same.

9. On the conclusion of trial the appellant was convicted and sentenced as mentioned supra whereas his co-accused namely Khalil Ahmad, Muhammad Idrees, Muhammad Rasheed and Khalid son of Jan Muhammad were acquitted by the learned trial court. Hence, instant appeal.

10. To the instant appeal, learned counsel has argued that all co-accused namely Khalil Ahmad, Muhammad Rasheed, Khalid and Muhammad Idrees, the abettor have been acquitted by the learned trial court. So far as case of appellant Ameer Hamza is concerned, incident took place during dark hours of night but prospection has tried to stretch it to the sun light in order to identify the culprits and he further has drawn inference of having not seen the incident by the PWs that as per the prosecution version, firstly Rasheed co-accused raised Lalkara that Ashraf alias Bhapi be taught a lesson for having caused injuries to Kouser Bibi, thereafter Ameer Hamza etc started firing at Ashraf alias Bhapi deceased who ran to sugarcane field, thereafter appellant made .44 bore rifle shot hitting on the right flank back side of deceased whereupon the deceased fell in the sugarcane crop of Muhammad Saleem but thereafter by 44 days delay the prosecution took a turn that the fire shot hitting on the right chest of the deceased near nipple went through and through whereas PWs have also taken the same stance refuting to their earlier stance, in this way, this fact alone is sufficient to disbelieve the presence of the PWs and the case of the appellant becomes more strengthen by the acquittal of the co-accused. Further maintained that recovery of rifle has been planted upon the appellant and report which is in the positive has also been procured to beef up the prosecution case. Although the appellant in his statement recorded under section 342, Cr.P.C. has offered a particular version without accepting his specific fire shot having been caused to Ashraf alias Bhapi the deceased even then the burden of proof remains on the prosecution to prove its case. Learned counsel has relied upon legal precedents that if the ocular account is not believable or has been disbelieved, then the court may ignore corroborative evidence how high so ever. In these circumstances, the prosecution has miserably failed to prove its case against the appellant beyond shadow of reasonable doubt. Another theory which has been propounded by the learned counsel for the appellant is that the plea of the accused has to be accepted or rejected in totality and it may not be interpreted in a dual way that incriminative part may be used by the prosecution. Learned counsel has submitted that if plea of the accused is to be accepted even then he has not specifically owned the liability of commission of murder of Ashraf deceased.

11. Learned Addl. P.G. assisted by learned counsel for the complainant has argued that acquittal of the co-accused namely Khalil Ahmad, Muhammad Idrees, Muhammad Rasheed and Khalid has no effect over the case of appellant because Ameer Hamza alias Iftikhar, the injured did not appear before court to support his own injuries received during the occurrence at the hands of co-accused Muhammad Khalil whereas the acquitted co-accused Rasheed, Khalid and Muhammad Khalil did not cause any injury to the deceased while Muhammad Idrees was only the conspirator and was not present at the spot as per the case but the appellant made a straight rifle fire shot at the deceased resulted in his death at the spot; medical version is comported with ocular account; partway investigation Ameer Hamza appellant was found guilty, he got recovered rifle which was matched with the empties taken into possession from the spot as per report of FSL Exh.PM; three eye witnesses namely Manzoor Ahmad, Muhammad Ameer and Muhammad Arif are consistent, persistent and tenacious to the role played by the appellant and moreso he has not denied his participation in the occurrence and admitted making fire shot at the deceased by propounding a plea of right of self-defence but in its support, he has not adduced any evidence and the learned trial court has already disbelieved it on cogent reasons. Further submits that minor contradictions in the statements of the PWs exist but the same cannot extirpate the prosecution evidence, when an accused thrust a special plea/version, then burden of proof lies upon him as per Art.121 of Qanun-e-Shahadat Order, 1984 then he has to discharge it but the appellant has failed. In all these circumstances, it has been submitted that appeal may be dismissed and impugned judgment may be upheld.

12. Learned counsel for the complainant has underpinned the submissions of learned Addl. P.G. and by supplementing the same submitted that incident took place in broad-day light at 4.00 PM, the matter was reported on the same day at 5.00 PM and the appellant was nominated in the FIR by his specific role. As the matter was reported to the police without any deliberations, therefore, sanctity of truth to FIR has to be attached. Learned counsel has further argued that police opinion is not binding upon the court but being averse to the police opinion, complainant filed a private complaint in which learned trial court concluded the trial to conviction and sentence of the appellant, therefore, the impugned judgment does not suffer from any illegality, perversity, element of non-reading or mis-reading of evidence, therefore, appeal may be yielded by recounting its dismissal.

13. Tripartite arguments heard. Record perused ambiversionly.

14. Assuredly co-accused-persons were acquitted by the learned trial court. Indubitably, the occurrence took place in daylight and parties were also known to each other before the incident. Partway investigation, Ameer Hamza appellant was found guilty. The rifle allegedly recovered from him has matched with the crime empties taken into possession from the spot and he, too, put-forth right of self defence but failed in its proving. The PWs have also asserted to have witnessed the occurrence but at the same time the most important aspect of the case having been deliberated the manner of happening of incident and role allegedly played by the appellant in the commission of crime/occurrence, the incident allegedly commenced as that Rasheed co-accused (since acquitted) exhorted that deceased be taught a lesson for having caused injuries to Mst. Kauser Bibi, thereafter Ameer Hamza (appellant) along with others started firing at the deceased who tried to apace beside a sugarcane crop, then the appellant Ameer Hamza made a rifle shot hitting on the left chest of deceased and went through and through to his death at the spot. The doctor observed two injuries on his body by autopsying, entry wound has been found on the left chest whereas on the back the exit wound. During the trial proceedings, all the three eye-witnesses took wavering stances as to the injuries caused by the appellant. PW.1 Manzoor Ahmad in his examination in chief has deposed as follows:- "Ameer Hamza made a straight fire shot on my brother Ashraf Baphi which hit Ashraf Baphi deceased on his chest near nipple on right side. Again said on left side and it made its exit from the back side of my brother. My brother fell down on the ground due to fire shot. Due to fear, we did not step forward". He further deposed that police got his signature on 2/3 blank papers. Again in the cross-examination, he reiterated voluntarily this fact. The role of the appellant has also been got contradicted/confronted during the cross-examination, the same part of his statement is reproduced as follows:- "I narrated the episode to the police some of it were incorporated in the application Exh.DB and some of it were incorporated by the police of their own. I have not stated this fact in Exh.DA, Exh.PA or in my examination in chief recorded before this court. I had gone through the FIR after it was registered. I had not agitated this fact before any forum. I had not got recorded in Exh.DB that accused Ameer Hamza made a fire shot with his 44-rifle which landed on the back side of chest of Ashraf near right flank, confronted with Exh.DB wherein it so recorded". PW

2. Muhammad Ameer has also been confronted to the role of the appellant played as follows:- "I had not got recorded in my statement before police that Ameer Hamza accused made a fire shot which landed on the back side of Ashraf deceased, confronted with Exh.DC wherein it is mentioned the fire shot of Ameer Hamza landed on the back of Ashraf deceased". It is true that the appellant's fire allegedly hit the deceased and in the case of single shot attributed to an accused, contradiction as to exit and entry wound may be ignored but herein the situation has been noticed otherwise that firstly all the accused persons having firearm weapons started firing at the deceased, thereafter, a specific role was attributed to the appellant. In this backdrop, such contradictions may not be ignored. The court after considering all the pros and cons of the case has come to a humble view that presence of the PWs at the place of occurrence has not been established and they did not see the incident notwithstanding the matter was reported to the police allegedly in the promptitude. No evidence has been produced to prove the motive. So far as recovery of gun and positive report is concerned, it may be a piece of adminicular evidence, obviously, considering it to be corroborative one, cannot be solely relied upon because the substantive evidence has not been believed by this court. So far as defence plea of the appellant is concerned, the Hon'ble Supreme Court of Pakistan has held in the case titled Mst. Sughran Begum and another v. Qaiser Pervaiz and others (2015 SCMR 1142) that burden of proof always remains on the prosecution, failure of the accused party in discharge of the liabilities of proof of plea does not be interpreted to support the prosecution version because since yore it is golden principle that prosecution has to stand on its own legs.

15. For what has been discussed above, its motif is that the prosecution has miserably failed to prove its case against the appellant beyond shadow of reasonable doubt, therefore, instant appeal is allowed, resultantly convictions and sentences of the appellant is set aside and he acquitted of the charges accredited against him by extending benefit of doubt. He is in prison, directed to be set at liberty in this case, in a trice, if not required in any other case. HBT/A-142/L Appeal allowed.