2016 PLP 97 (YLRN)

FARRUKH GULZAR AWAN, J.

Before us, Shahid alias Waris, the appellant is threatening death gallows and appellant Yasin is undergoing the imprisonment for life being charged, tried and convicted by the learned Sessions Judge, Sahiwal vide judgment dated 29.11.2010 in private complainant titled 'Muhammad Arif v. Shahid alias Waris etc.', for offences under sections 302/ 324/ 337-A(i)/ 452/337-F(ii)/ 337-L(2) of The Pakistan Penal Code (Act XLV of 1860), Police Station, Dera Raheem District Sahiwal. Shahid alias Waris appellant was sentenced as under:- Under section 302(b), P.P.C. Death and to pay the compensation of Rs.100,000/- to the legal heirs of Riaz deceased recoverable under section 544-A, Cr.P.C. and in default thereof to further undergo simple imprisonment for six months. Under section 452/34, P.P.C. Rigorous imprisonment for five years and to pay the fine of Rs.5000/- and in default thereof to further undergo simple imprisonment for one month. Under section 324/34, P.P.C. Rigorous imprisonment for five years and to pay the fine of Rs.10,000/- and in default thereof to further undergo simple imprisonment for two months. Appellant Yasin was sentenced as under:- Under section 302/34, P.P.C. Imprisonment for life and to pay the compensation of Rs.50,000/- to the legal heirs of Riaz deceased recoverable under section 544-A, Cr.P.C. and in default thereof to further undergo simple imprisonment for three months. Under section 324, P.P.C. Rigorous imprisonment for five years and to pay the fine of Rs.10,000/- and in default thereof to further undergo simple imprisonment for two months. Under section 452/34, P.P.C. Rigorous imprisonment for five years and to pay the fine of Rs.5000/- and in default thereof to further undergo simple imprisonment for one month. All the aforesaid sentences were ordered to run concurrently.

2. Feeling aggrieved, the appellants filed instant appeal against their conviction, which shall be decided along with the captioned Murder Reference seeking confirmation or otherwise of death sentence of Shahid alias Waris through this single judgment.

3. Prosecution's case is based upon the aforesaid titled complaint Ex.PA filed by Muhammad Arif (PW-1) wherein he alleged that his sister Mst. Mumtaz Bibi (PW-2) was married with Shahid alias Waris (appellant) and out of the wedlock one daughter was born and was living with her mother. Mumtaz Bibi had left the house of her husband three years ago and was living with them/her brothers. On 5.2.2008 at about 11:30 p.m. his sister Mumtaz Bibi (PW-2) opened the door on hearing barking dogs and knocking whereupon Shahid alias Waris (appellant), Yasin (appellant), Jafar and Arif (both since acquitted) forcibly entered into the house and tried to snatch minor daughter from Mumtaz Bibi whereupon Mumtaz Bibi and Pathani Bibi, other sisters of the complainant, raised hue and cry. The complainant and his brother Riaz (deceased), who were sleeping in the adjacent room, came in the courtyard and saw in the light of electric bulb that Shahid alias Waris armed with pistol, Yasin armed with pistol, Jafar armed with pistol and Arif armed with gun were present there. Shahid alias Waris appellant was extending threats to hand over the child to him otherwise he would kill them and directed his co-accused to forcibly pick up Mumtaz Bibi and the minor child. Riaz deceased intercepted them. Shahid alias Waris raised lalkara and fired which hit Riaz on the front of his chest. The complainant forwarded and tried to resist whereupon Jafar (since acquitted) fired which passed by the side of the complainant. Yasin (appellant) fired which hit on the head of the complainant. Jafar gave butt blow of his pistol on the left side of head of the complainant. Arif gave butt blow of his gun on the right arm of the complainant. Thereafter, all the accused gave severe beating to the complainant who fell down being seriously injured. On hue and cry Zakir (since given up) and Ghulam Farid (PW-3) reached there and on seeing them, all the accused persons fled away from the spot along with their respective weapons. They attended Riaz Ahmad but he had succumbed to the injuries. Motive behind the occurrence is that appellant Shahid alias Waris was married with Mumtaz Bibi, sister of the complainant, who had left the house of her husband along with her minor daughter and was living with her brothers, the accused persons tried to forcibly take them and on the resistance of the complainant party, they done away with Riaz deceased.

4. It was further alleged in the private complaint Ex.PA that the complainant was shifted to hospital under critical condition and the police being in league with the accused persons, did not record the correct version of Mumtaz Bibi and registered case FIR No.52 dated 5.2.2008, under sections 302 / 324/ 337-F(ii)/ 337-A(i)/ 337-L(2)/ 337-H/34, P.P.C. at Police Station Dera Raheem. She approached the learned Ex-officio Justice of Peace and also tried for change of investigation but of no avail. Being dissatisfied with the investigation conducted by the local police, the complainant constrained to file private complaint.

5. The prosecution produced as many as 4-witnesses in order to substantiate charge against the appellants and gave up Muhammad Zakir being unnecessary. The police officials including draftsman appeared as CW-1 to CW-7. The prosecution closed its evidence while tendering the report of Chemical Examiner Ex.PK and that of Serologist Ex.PM.

6. Dr. Tanvir Ahmad (PW-4) conducted post mortem examination on the dead body of Riaz Ahmad deceased on 5.2.2008 at 4:30 p.m. and observed two injuries on his person i.e. one fire arm injury on right side of chest with blackening and the other being exit wound on back of right chest. Duration between injuries and death was immediate and between death and post mortem examination about 17-hours. Ex.PG is post mortem examination report and Ex.PG/1 is pictorial diagram showing location of injuries. The said medical officer also conducted medico legal examination of injured Muhammad Arif (PW-1) on the same day at 6:00 p.m. with the history of fighting with dacoits and observed 11 injuries on his person. Injury No.3 was caused by fire arm and the remaining injuries with blunt weapon. Ex.PE medico legal examination report and Ex.PE/1 is the pictorial diagram showing location of injuries.

7. The appellants were examined under section 342, Cr.P.C. The incriminating evidence produced by the prosecution was put to them, which they termed as incorrect and claimed that the deceased as well as the injured PW received injuries by the dacoits on the fateful night, which fact was also established during investigation and that they have nothing to do with the alleged offence and they were found innocent during investigation. They neither opted to appear on oath as witnesses under section 340(2), Cr.P.C. nor produced evidence in their defence.

8. Learned trial Court, after hearing learned counsel for the parties and going through the evidence on record, convicted the appellants and sentenced them supra through the impugned judgment.

9. Learned counsel for the appellants has contended that the prosecution case is fraught with contradictions, inconsistencies and improbabilities; that the learned trial Court has not appreciated defence plea that the prosecution has failed to prove its case beyond reasonable doubt; that so-called eye-witnesses are closely related to the deceased and there is no independent corroboration; that in fact it was an occurrence of dacoity, which also came on record during thorough investigation conducted by the police; that discharge report of the appellants was prepared by the police; that nothing was recovered from the appellants during investigation; that the medical evidence is inconsistent with the ocular account; that the motive is shrouded in mystery being unbelievable, feeble and beyond ordinary prudence and as such in this backdrop, the learned trial Court was not justified to award conviction to the appellants.

10. Contrarily, learned DPG for the State assisted by learned counsel for the complainant has supported the impugned judgment contending that the same is based on cogent, convincing and confidence inspiring evidence.

11. We have heard the learned counsel for the appellants, learned DPG for the State assisted by learned counsel for the complainant and have also gone through the record.

12. Ocular account of the occurrence in issue had been provided before the learned trial Court by Muhammad Arif, complainant (PW-1), Mumtaz Bibi (PW-2) and Ghulam Fareed (PW-3). Muhammad Arif (PW-1) and Zakir (given up PW) are brothers and Mumtaz Bibi (PW-2) is sister of Riaz Ahmad (deceased). Ghulam Farid (PW-3) was residing at a distance of about 3/4 k.m. from the place of occurrence and reached there on hearing hue and cry and when entered into the Haveli, he saw the accused persons beating the complainant and Riaz Ahmad deceased was lying dead. He is claimed to be an independent witness and has no ill-will or animosity with the appellants to give false statement. Admittedly, he did not witness the occurrence regarding the murder of Riaz Ahmad deceased and he is witness to the extent of beating to the complainant at the hands of the appellants and their co-accused. During cross-examination he was confronted with his earlier statement Ex.DB recorded before the police under section 161, Cr.P.C. It is highly improbable that the said witness covered the distance of 3/4 kilometers on hearing noise from long distance and reached there in such a short span of time but none from the neighborhood attracted there. It is also unbelievable that the accused persons remained present and kept on waiting the eye-witnesses to reach the place of occurrence and identify them. In the circumstances, his presence at the venue of occurrence is under heavy clouds and his testimony being unworthy of credence, is brushed aside.

13. What left against the appellants, the prosecution rests solely on the evidence of two eye-witnesses Muhammad Arif (PW-1) and Mumtaz Bibi (PW-2). The former is brother and later is sister of the deceased. The parties admittedly had ill-feelings and the injured eye-witness was related to the deceased. Both the said PWs constituted the mainstay of the prosecution case on almost all salient features but their deposition stood contradicted with the medical evidence. Appellant Shahid alias Waris was attributed the role of firing at Riaz Ahmad deceased and also giving beating with butt of his pistol to the complainant. Yasin appellant was assigned the role of causing fire arm injury on the head of the complainant and also giving beating to the complainant with the butt of his pistol. Injury No.1 on the person of the deceased was declared fatal and sufficient to cause death. The medical expert observed blackening on the said injury. According to site plan Ex.CW-3/A, distance between Riaz Ahmad injured at Point No.1 and Shahid appellant at Point No.3 is that of 15-feet. It is well settled principle of medical jurisprudence that blackening from such a long distance in not possible as such cast serious doubt about the veracity of eye-witness account. Mere fact that one person was injured during the occurrence and he is star witness of the occurrence, would not stamp him to be a truthful witness. Reliance is placed on case titled "Amin Ali and another v. State (2011 SCMR 323)" wherein it has been held as under:- "None of the witnesses deposed that any of the appellants had caused the injuries, from a close range but on the contrary in the site plan the place of firing has been shown 8 feet away from the deceased. Thus from such a distance injury with blackening cannot be caused as it can be caused from a distance of less than three feet as per Modi's Medical Jurisprudence.

Merely the injuries on the person of PWs would not stamp them truthful witnesses."

14. It is noticeable that the aforementioned case was registered on the complaint (Ex.DA) of Mst. Mumtaz Bibi on the same night nominating the appellants along with two unknown persons, which was thumb marked by her as a token of its correctness. It is not the case of prosecution that Muhammad Arif (PW-1) was unconscious when he was shifted to hospital where his medico legal examination was conducted on 5.2.2008 at 6:00 p.m. On 17.2.2008, the complainant as well as the witnesses joined the investigation nominating Jafar and Arif in this case. Saeed Ahmad, SI (CW-6) recorded the statement of Muhammad Arif (PW-1) on 17.2.2008 and admitted during cross-examination that he shifted Muhammad Arif injured to hospital but did not record his statement as he was adamant to get record his statement after consulting his lawyer. Muhammad Arif (PW-1) I remained in hospital during the aforesaid period but he did not opt to make any effort to join the investigation for recording his statement and after 12-days of the occurrence, he joined the investigation perhaps after due consultation and deliberation. It is an admitted position that the witnesses are interested being closely related to the deceased and it was advisable, in the peculiar circumstances of the case, to find some corroboration of their evidence before they should have been accepted. In this case, testimony of the eye-witnesses does not find corroboration from the medical evidence and these inconsistencies are enough to hold that the prosecution failed to prove its case against the appellant beyond any shadow of doubt especially when nothing was recovered from the appellants during investigation.

15. We have observed that the matter was firstly reported to the police at 12:03 midnight as is evident from the register of Rescue-15 (Ex.CW-7/A) wherein one Muhammad Iqbal son of Muhammad Bakhsh, a resident of the same vicinity, furnished information that some dacoits entered into his house, murdered one person and took away an injured person with them. Mumtaz Bibi (PW-2), deposed that police reached the place of occurrence after 5-10 minutes of the occurrence. The police recorded the statement of Mst. Mumtaz Bibi PW-2 (Ex.DA) at 12:05, wherein she nominated the appellants along with two unknown persons. Saeed Ahmad, SI (CW-6) conducted investigation in this case and completed all the formalities as to the initial investigation. This stance of both Mumtaz Bibi and the investigating officer stood contradicted from the deposition of Zafar Iqbal No.991/C (CW-1) deposing that he along with the investigating officer reached at the place of occurrence early in the morning at Azan Wela. The difference of timing in the deposition of said witnesses speaks out the possibility that soon after the occurrence, the Roznamcha was stopped by the police in order to cook up a strong story roping the appellants in this case. These contradictions cannot be considered to be minor but very material and goes to the very root of the case causing reasonable doubt about the mode and manner of the occurrence.

16. It is noticeable that Saeed Ahmad SI (CW-6) deposed during cross-examination that on the same day sniffer dogs and foot trackers were arranged by the relatives of Mst. Mumtaz Bibi. All the accused persons mentioned in the private complaint Ex.PA were admittedly well-known to the eye-witnesses. It is shrouded in mystery that when all the accused persons were already known to them and were identified by them at the venue of occurrence in the light of electric bulb, what prompted them to call sniffer dogs and foot-trackers.

17. There is yet another aspect, which detracted from the evidence on record that discharge report Ex.DC of the appellants was prepared by the investigating agency as during investigation, duly verified by the SDPO concerned, both the appellants along with other two co-accused (since acquitted) were found not involved in this case and it transpired that the actual culprits were Imran, Ali Sher, Khadim, Shaukat Ali and Said. Imran is son of Zakir (given up PW) and nephew of Mumtaz Bibi (PW-2). Saeed Ahmad, SI (CW-6) deposed during cross-examination that said Imran and his mother had kicked out by Zakir as he was deprived of the estate of his father Zakir. It was also brought on record in the deposition of the complainant that prior to this occurrence, Imran had committed robbery in their house and took away a bull, which was returned to them through Panchayat. The appellants also took a specific defence that it was an occurrence of dacoity, which stood confirmed by the investigating agency. In the circumstances, although police opinion is not binding upon the Court yet in such like cases, we consider it to be relevant for just decision of the case.

18. We have noted that electric bulb i.e. an important piece of evidence being source of light, was neither taken into possession during investigation nor the same was produced by the complainant to the investigating agency and nothing is even available on record to adjudge its intensity. It was admittedly a dark night occurrence and identity of the assailants with their respective roles is under heavy clouds keeping in view their numbers without corroboration from the recovery/proof of source of light.

19. So far as motive is concerned, it is alleged by the complainant that Mumtaz Bibi (PW-2) was married with appellant Shahid and out of wedlock one daughter namely Mst. Kishwar Bibi was born. Three years back Mumtaz Bibi had left her husband and was living with her brothers due to strained relations. It was alleged that on the fateful night the appellants along with their co-accused tried to pick up Mumtaz Bibi and her daughter. Nothing is available on record to show any sort of litigation before the Family Court between the spouses. The complainant also could not produce evidence to show that the appellant had ever tried to take her daughter or wife through respectable/Panchayat. Therefore, motive in this case disappears for want of proof and being entirely sketchy, shaky, feeble and artificial and on this score, the prosecution case is liable to be discarded. Reliance is placed on case titled "Mst. Sughra Begum and others v. Qaiser Pervez and others (2015 SCMR 1142)".

20. We have observed that post-mortem examination of Riaz Ahmad deceased as well as medico legal examination of injured Muhammad Arif (PW-1) was conducted with a noticeable delay of about 18-hours. In such eventuality and the intentional delay on the part of the complainant, possibility cannot be ruled out that time was consumed by the complainant to procure and plant the eye-witnesses. Reliance is placed on case titled "Irshad Ahmed v. The State (2011 SCMR 1190)" wherein it has been held as under:- "We have further observed that the post-mortem examination of the dead body of Shehzad Ahmed deceased had been conducted with a noticeable delay and as such delay is generally suggestive of a real possibility that time had been consumed by the police in procuring and planting eye-witnesses and in cooking up a story for the prosecution before preparing police papers necessary for getting a post mortem examination of the dead body conducted."

21. Recovery of crime empties from the place of occurrence in absence of recovery of weapons of offence is of no avail to the prosecution.

22. It is cardinal principle of criminal jurisprudence that a single instance causing a reasonable doubt in the mind of the Court entitles the accused to the benefit of doubt and that such benefit must accrue in favour of the accused as a matter of right not as a matter of grace.

23. In view of what has been discussed above, the appeal in hand is hereby allowed, impugned judgment dated 29.11.2010 is set aside and the appellants are acquitted of the charge. Appellant Sahid alias Waris is in custody, he shall be released forthwith, if not required in any other case. Appellant Yasin is on bail, his bail bonds as well as surety stands discharged from the liability.

24. Death sentence awarded to appellant Shahid alias Waris is not confirmed and Murder Reference No. 199 of 2010 is answered in negative. SL/S-31/L Appeal allowed.