2018 P Cr (PLP)

SARDAR MUHAMMAD SARFRAZ DOGAR, J.

This sole judgment will be disposing of Criminal Appeal No. 2160 of 2009 as well as Criminal Revision No.1107 of 2012 simultaneously. Abdul Ghaffar alias Kaka, Nisar Ahmed alias Sari (since acquitted), Abdul Sattar alias Sahib (since acquitted) and Muhammad Asghar (since acquitted) were tried by the learned Additional Sessions Judge, Gujrat, in case FIR No.341/2008 dated 05.11.2008, offence under sections 302, 109, P.P.C. at Police Station Karianwala for committing Qatl-i-amd of complainant's son Zulfiqar. The learned trial court, vide judgment dated 01.12.2009, convicted Abdul Ghaffar alias Kaka under section 302(b), P.P.C. and sentenced him imprisonment for life with a direction to pay Rs.1,00,000/- as compensation to the legal heirs of deceased Zulfiqar or in default thereof six months' SI. Benefit of section 382-B, Criminal Procedure Code, 1898 was also extended to him.

2. Feeling aggrieved at the decision, Abdul Ghaffar alias Kaka (convict) has lodged Criminal Appeal No. 2160 of 2009 against his conviction and sentence, wherein; a notice regarding enhancement of the sentence awarded by learned trial Court was issued by this Court vide order dated 31.10.2012, thus Criminal R. No.1107/2012 germinated.

3. Precisely, the prosecution case, as set forth in the complaint (Ex.PD) lodged by Mst. Jannat Bibi complainant (PW.6), on the basis whereof formal (Ex.PD/2) was recorded, is that at 05:00 p.m. on 05.11.2008 her son Zulfiqar Ali, deceased was standing in the vacant plot adjacent to their house, and she along with Muhammad Iqbal and Sultana Kauser were repairing roof of the house. Abdul Ghaffar son of Muhammad Asghar appeared from Eastern side and extended threats to Zulfiqar Ali (deceased) that today his life would not be spared. Zulfiqar Ali (deceased) implored him as to what was the reason for his annoyance. Abdul Ghaffar brought out his pistol and opened many fire shots straightly at Zulfiqar Ali (deceased) which hit on different parts of his body, who fell on the ground, and succumbed to the injuries on the spot. Mst. Jannat Bibi complainant along with Muhammad Iqbal and Sultana Kauser PWs got down from their roof top near the deceased, meanwhile, Ilyas Muhammad son of Muhammad Walayat PW also came there. One day prior to occurrence, Muhammad Iqbal and Sultana Kausar PWs had overheard a conspiracy while passing before the house of Muhammad Asghar (since acquitted), when Muhammad Asghar, Nisar Ahmed, Abdul Ghaffar and Abdul Sattar were mutually consulting each other in their courtyard about murder of deceased Zulfiqar Ali PWs Iqbal and Sultana Kausar had told about this conspiracy to deceased, and the complainant registered her protest about the conspiracy before Muhammad Asghar but he paid no heed.

4. The alleged motive was a verbal altercation took place between deceased Zulfiqar Ali and Abdul Ghaffar, appellant at Fruit Market at Lahore few days prior to occurrence.

5. Khalid Mehmood, SI (PW.8) on 05.11.2008 after receiving information about the occurrence, reached at the place of occurrence and the mother of the deceased Mst. Jannat Bibi complainant (PW.6) presented application, EX.PD before him. He recorded his karrwai as Ex.PD/1 and sent the same through Muhammad Nadeem, constable to the Police Station for registration of formal FIR Ex.PD/2 which was drafted by Arshad Mahmood, SI. Thereafter, he (PW.8) inspected the dead body of the deceased Zulfiqar Ali and prepared injury statement Ex.PH and inquest report Ex.P.T. He drafted application Ex.PK for postmortem of the Zulfiqar Ali (deceased) and handed over the dead body to Mustansar Mahmood, 1354-C for postmortem examination. He also recorded the statements of witnesses present on the spot under section 161, Criminal Procedure Code, 1898 and took into possession blood stained earth vide recovery memo Ex.PF, and crime empties of pistol .30-bore vide recovery memo Ex.PG. He also prepared rough site plan Ex.PL. On 06.11.2008 Mustansar Mahmood handed over to him postmortem report and last worn clothes of the deceased P.1 to P.3 which were taken into possession vide recovery memo Ex.PA. Thereafter, on 08.11.2008 Akhtar Naqash, Draftsman (PW.5) prepared rough notes and scaled site plans Ex.PC and Ex.PC/1. On 20.11.2008 accused Muhammad Asghar, Nisar Ahmad and Abdul Sattar (since acquitted) joined investigation before Investigator (PW.8) after securing their pre-arrest bail. He arrested Abdul Ghaffar alias Kaka on 27.11.2008 and on 05.12.2008 on the disclosure of Abdul Ghaffar, led to the recovery of pistol P.4 along with five bullets P.5/1-5 which were taken into possession vide recovery memo Ex.PE and also prepared rough site plan about place of recovery Ex.PE/1.

6. During the course of investigation having found the appellant guilty, the investigating officer prepared report under section 173, Cr.P.C. and sent the same to the court of session enrouted through Illaqa Magistrate as provided in the Terms of section 190(2), Cr.P.C. The learned Additional Sessions Judge, Gujrat, vide order dated 20,01.2009, formally charged sheeted the accused to which they pleaded not guilty and claimed trial.

7. At the trial, prosecution in order to prove its case produced eight witnesses in all. Mst. Jannat Bibi (PW-6) and Mst. Sultana Kausar (PW-7) have furnished ocular account. Khalid Mahmood, SI/PW-8 conducted investigation. Akhtar Naqash, (PW-5) prepared scaled site plans. Doctor Ghulam Abbas Zafar, MO/PW-4 deposed that he on 06.11.2008 at about 11.50 a.m. conducted postmortem examination on the dead body of the deceased Zulfiqar Ali and observed following injuries on his body:- "

1. A fire arm wound of entry 1 cm x 1 cm with burnt margins on lower sternal part left side just over the heart. 2. a fire arm wound of entry 1 x 1 cm with burnt margin on left castralmargine at abdomen.

3. A fire arm wound of exit of injury No. 2 on back of right lower chest close to mid line.

4. A fire arm wound of entry on right castralmargine on abdomen at level of injury No. 2, the wound was about 2 cm x 2 cm.

5. A fire arm wound of exit of injury No. 4 on back side of left lower chest close to injury No. 3.

6. A fire arm wound of entry 2 cm x 1-1/2 cm on inner side of right middle part of upper limb.

7. A fire arm wound of exit of injury No. 6 just outer side at the same level of injury No.

6. It was about 2 cm x 2 cm.

8. A fire arm wound of entry on left cheek about 1 cm x 1 cm.

9. A fire arm wound of exit of injury No. 8 on right side of face at mendable near neck. The bone underneath was fractured.

10. A fire arm wound of entry 1 cm x 1 cm on pasterior part of left perital area of skull.

11. A fire arm wound of exit of injury No. 10 on anterior part of right perital area of skull. It was about 2 cm x 2 cm. On Internal examination the injuries were:-

1. Heart was badly crushed. A metallic piece was recovered from behind the heart lying on vertebra, sealed and handedover to police.

2. Liver was crushed.

3. Stomach was crushed.

4. Large intestine with mesentry was crushed.

5. Brain was badly crushed and skull bone was fractured. Urinary bladder was half filled and rest of viscera was normal. OPINION: After careful examination of the dead body I was of the opinion that all injuries were ante mortem and caused by fire arm weapon. Injuries Nos. 1 to 5 and injuries Nos. 8 to 11 on external examination and injuries Nos. 1 to 5 on internal examination were sufficient to cause death immediately in ordinary course of nature due to severe haemorrhage and shock. Other injuries were contributory in the causation of death. The time between injuries and death was assessed as immediate death and the time between death and postmortem was assessed as within about 12 to 24 hours. After examination the dead body was handed over to police along with postmortem examination report, police papers, three X-ray films, a sealed bottle and clothes. Exh.P.B. is the correct carbon copy of postmortem examination and the sketches of injuries are Exh. P.B/1 and Exh.P.B/2 which are in my handwriting and bear my signatures."

8. Rest of the witnesses are of formal in nature, therefore, they need not to be discussed. The learned DDPP, after giving up Muhammad Hamid, C-2701, Muhammad Ilyas, PWs being un-necessary, tendered in evidence report of Chemical Examiner Ex.PM, reports of Serologist Ex.PN and report of FSL Ex.PO and closed the case of the prosecution.

9. At the conclusion of prosecution evidence, learned trial court recorded the statement of the appellant under section 342, Cr.P.C. as well as the acquitted accused whereby they denied each and every piece of prosecution evidence while pleading their innocence. In reply to question "why this case against you and why the P.Ws deposed against you" Abdul Ghaffar alias Kaka appellant has stated as under:- "All the PWs are close relatives and deposed against me falsely due to the reason that son of the complainant committed theft in kotlaSoian and she suspected that I and my father has reported the matter against her son for committing theft and complainant felt annoyed and due to that reason they involved me and my whole family in the instant case." After conclusion of trial, the learned Addl. Sessions Judge, Gujrat, vide judgment dated 01.12.2009, convicted and sentenced the appellant Abdul Ghaffar alias Kaka as mentioned above and acquitted all the other accused.

10. Learned counsel for the appellant, after having read the prosecution evidence and statements of the accused under section 342, Cr.P.C., submits that it was an un-witnessed occurrence. Further submits that all the eye witnesses are interested, and closely related to the deceased, and infact, they were not present at the scene of occurrence, therefore, their testimony is not impartial, and they are not reliable witnesses. Adds that there are material contradictions in their statements. It is submitted that no crime empty was recovered from the spot and convict/appellant has been implicated falsely. According to learned counsel, the presence of the eye-witnesses at the place of occurrence was unnatural and the case was registered after due deliberations and consultations. It is argued that there are material contradictions in the statements of eye-witnesses, false recoveries have been planted upon the appellant and the medical evidence negates the version of prosecution story. It is further argued that prosecution has badly failed to prove its case against the present appellant beyond reasonable shadow of doubt, therefore, the appellant is entitled to be acquitted.

11. On the other hand, the learned Deputy Prosecutor General assisted by learned counsel for the complainant, submits that the prosecution has fully proved its case against the convict/appellant to its hilt beyond any reasonable shadow of doubt through ocular account which is fully corroborated by medical evidence. Further submits that motive, as alleged by the complainant in the FIR, has been proved. According to learned counsel, both the parties were known to each other, so there was no question of mistaken identity. The Deputy Prosecutor General supports the judgment of learned trial court, while learned counsel for the complainant prays for enhancement of conviction of the appellant.

12. We have heard the learned counsel for the parties at considerable length and have gone through the record with their able assistance.

13. The prosecution story as set forth in the FIR (Exh.PD/2) by Mst. Jannat Bibi complainant (PW-6) through his written complaint (Exh.PD) is that on 05.11.2008, at about 5:00 p.m., when her son namely Zulfiqar Ali was present at thoroughfare adjacent to his house, Abdul Ghaffar (appellant) came there and threatened him that he will not be spared today, thereafter, Abdul Ghaffar (appellant) took out a pistol and opened straight firing upon Zulfiqar Ali which hit him on various parts of his body. Due to said injuries, Zulfiqar Ali fell down on the ground. The complainant (PW-6), Muhammad Iqbal (not cited as witness in report under section 173, Cr.P.C.), Sultana Kausar (PW-7) and Ilyas Muhammad (given up-PW) witnessed the occurrence. The role of abetment is assigned against Muhammad Asghar, Nisar Ahmed, Abdul Sattar (since acquitted) and Abdul Ghaffar (appellant). The first information report is a foundation of any criminal case on the basis of which the Investigator collects the evidence with regard to innocence or guilt of the persons named therein. In this case, as per contents of FIR (Exh.PD/2), the occurrence took place on 05.11.2008 about 5:00 p.m., and incident was reported to the police at 6:15 p.m. at Hajiwala and formal FIR (Exh.PD/1) was chalked out at 6:40 p.m. whereas in the inquest report (Exh.PJ) in item No.3, time of information received about occurrence was mentioned as 6:00 p.m., itself creates doubt about the time of occurrence. It should be borne in our mind that time of alleged occurrence is not the same as stated by the complainant Mst. Jannat Bibi (PW-6). It is also noticed by us that the particulars of the FIR (Exh.PD/1) are not mentioned in the inquest report (Exh.PJ). Khalid Mehmood, S.I. (PW-8) had specifically mentioned that he prepared the inquest report at 6:30 p.m. whereas FIR (Exh.PD/l) was lodged at 6:40 p.m. If that is so, it is not believable that the eye-witnesses had seen the occurrence and the FIR (Exh.PD/1) was the outcome of prior deliberation and consultation. Hence, there is no credible evidence to establish that when the dead body was sent to mortuary for postmortem examination. Mst. Sultana Kausar (PW-7) deposed that the dead body was moved to hospital on 05.11.2008 at 8:00 p.m. whereas; the postmortem examination was conducted on the dead body on 06.11.2008 at 11:50 a.m. after delay of more than fifteen hours without explaining any sufficient reason. Unexplained delay in conducting postmortem examination also contaminated the prosecution story for the reason that delay in postmortem examination is generally suggestive of a real possibility that time was consumed by police in procuring and planting eyewitnesses and in cooking up a story for prosecution before preparing police papers necessary for getting a postmortem examination of dead body conducted. In this regard, we respectfully refer the dictum laid down by the Hon'ble Supreme Court of Pakistan in the case of Irshad Ahmed v. The State (2011 SCMR 1190). The time of conducting the postmortem examination on the dead body of Zulfqar Ali deceased also contradicted the time when the dead body was sent to mortuary, Dr. Ghulam Abbas Zafar (PW-4) deposed that the probable time between death and postmortem examination was 12 to 24 hours. Hence, it is difficult to hold that the witnesses were present at the spot and FIR was lodged without delay. The above noted facts constrained us to formulate an opinion that the prosecution has miserably failed to make out a concrete foundation of its story as there are material contradictions even with regard to the time of occurrence, which are sufficient to believe that in this case, the FIR was chalked out after conducting preliminary inquires, arranging P.Ws. and deliberation after consultation. Guidance is sought from Iftikhar Hussain and others v. The State (2004 SCMR 1185). In this case, it is proved that the FIR was recorded after deliberations and in such like cases whole investigation from recording of FIR till finalization becomes doubtful. Edifice built upon such FIR would fall to ground rendering entire case totally unbelievable.

14. There is another aspect of the case, which cannot go un-noticed, is that as per prosecution story narrated in the FIR, Abdul Ghaffar appellant made straight indiscriminate firing which hit various part of body of Zulfiqar Ali deceased. Perusal of postmortem examination report (Exh.PB) reveals that Zulfiqar Ali received 11 injuries (supra) on different parts of his body out of which five were entry and six were exit wounds. A metallic piece was also recovered from behind the heart lying on vertebrae from the body of Zulfiqar Ali deceased during postmortem examination. In the attending circumstances, it is crystal clear that the medical evidence in this case is shaky, and thus unbelievable. Even otherwise, the medical evidence is also not in line with the ocular account furnished by the eye-witnesses (PW-6 and PW-7) as both the eye-witnesses deposed that Abdul Ghaffar appellant made straight firing upon Zulfiqar Ali deceased. Perusal of the scaled site plan (Exh.PC) prepared by Akhtar Naqash (PW-5) also revealed that at the time of occurrence both appellant and deceased were standing before each other. Contrary to the above, Dr. Ghulam Abbas Zafar (PW-4) while facing the cross-examination deposed as under:- "It is true that the deceased had received entry wounds from right and left side of his body. It is correct that entry wounds are of three different dimensions. It is correct that injury No. 9 is exit wound of injury No. 8 and it is directed from above to downwards. The possibility may be that the different assailants may have fired from different distances. I cannot comment about the weapon used by the assailants. From the track of injuries Nos. 8 and 9 it appears that the assailant was at a higher level than the deceased." In the given state of affairs, it is made clear that as per statement of Dr. Ghulam Abbas Zafar (PW-4) that all the firearm injuries on the person of the deceased at the time of his medical examination were found to be of different dimensions. Dr. Ghulam Abbas Zafar (PW-4) deposed during cross-examination as under:- "It is true that the deceased had received entry wounds from right and left side of his body. It is correct that entry wounds are of three different dimensions, If is correct that injury No.9 is exit wound of injury No.8 and it is directed from above to downwards. The possibility may be that the different assailants may have fired from different distances. I cannot comment about the weapon used by the assailants. From the track of injuries Nos.8 and 9 it appears that the assailant was at a higher level than the deceased." The deposition of Dr. Ghulam Abbas Zafar (PW-4) reveals that the medical evidence is not in line with the ocular account and the same is, thus, discarded.

15. We are unable to place reliance on the ocular account furnished by the prosecution, for the following reasons: - i) There are material contradictions in the statements of both the eye-witnesses (PW-6 & PW-7). Mst. Jannat Bibi complainant (PW-6) while facing the cross-examination deposed that besides her Arshad (her nephew) and Ehsan (her grandson) accompanied the dead body. Contrary to the above, Mst. Sultana Kausar (PW-7) during her examination-in-chief deposed that she along with complainant, Arshad, Ilyas, and a police constable accompanied the dead body whereas while facing the cross-examination she deposed that Ilyas, Arshad and complainant had escorted the dead body to the hospital and that he did not go to the hospital. Simultaneously, PW-6 deposed that police reached the spot at 6:00 p.m. She (PW-6) denied that any journalist was summoned at the place of occurrence. She (PW-6) admitted it correct that a criminal case with regard to offence of dacoity committed on 05.11.2008 at 6:00 p.m. was registered against Muhammad Iqbal (PW-not produced). Mst. Sultana Kausar (PW-7) deposed that the police reached the place of occurrence after 5/6 minutes of occurrence. She (PW-7) journalists might have visited the place of occurrence. She (PW-7) denied that Muhammad Iqbal (PW-not produced) was booked in any criminal case regarding dacoity committed on 05.11.2008 at 6:00 p.m. Careful appraisal and comparative analysis of the testimonies of both the eye-witness transpires that there are material contradictions and inconsistencies in their depositions. All these contradictions and deficiencies cast serious dents and doubts in the prosecution case. Therefore, it is concluded that both the eye-witnesses (PW 6 and PW-7) were not present at the time and place of occurrence and did not witness the same. ii) The prosecution has alleged that at the time of occurrence Muhammad Iqbal and Ilyas were also present. Muhammad Iqbal (PW) was not produced either before the Police Investigator or learned trial Court. Khalid Mehmood SI (PW-8) deposed that he recorded the statements of P.Ws. at the place of occurrence. He (PW-8) admitted that he had not recorded the statement of Muhammad Iqbal. The testimonies of PW-6 and PW-7 also made it clear that a criminal case with regard to commission of dacoity allegedly committed by Muhammad Iqbal on 05.11.2008 at 6:00 p.m. was registered against Muhammad Iqbal. His (Muhammad Iqbal) presence was also alleged at the place of occurrence on the same time and date, which otherwise is impossible. This important witness (Muhammad Iqbal), for the reason best known to the prosecution, has not been produced before the learned trial court even he (Muhammad Iqbal) has not been cited in the calendar of witnesses; withholding of this important evidence in the peculiar circumstances of this case leads us to draw an adverse inference against the prosecution keeping in view Article 129(g) of Qanun-e-Shahadat Order, 1984. The other eyewitness Ilyas was given up by the prosecution. The prosecution is failed to explain that why the best evidence available with the prosecution in shape of statement of Ilyas has been withheld, as such a presumption under Article 129(g) of Qanun-e-Shahadat Order, 1984 is to be drawn against the prosecution. All the circumstances mentioned above are sufficient to believe that the prosecution case is highly doubtful and based on un-natural and unbelievable story. Guidance is sought from Muhammad Rafique and others v. The State and others (2010 SCMR 385) and Lal Khan v. The State (2006 SCMR 1846). iii) Another important aspect, which render the prosecution story highly doubtful is that the occurrence took place in a thoroughfare adjacent to the house of deceased whereas scaled site plan (Exh.PC) revealed that the occurrence took place inside the boundary wall of house of deceased. iv) Admittedly, Zulfiqar Ali deceased was involved in number of cases and even he was released from jail just four months prior to occurrence in a double murder case, therefore, availability of his enemies in the area cannot he ruled out.

16. Recovery of pistol on the pointation of Abdul Ghaffar appellant is inconsequential as report of the Forensic Science Laboratory (Ex.PO) is in the negative because the crime empty allegedly recovered from the place of occurrence did not match with the pistol .30 bore so recovered from the appellant.

17. As far as motive in this case is concerned, the prosecution has set up a motive that some days prior an altercation took place between Zulfiqar Ali deceased and Abdul Ghaffar appellant but we have noticed that prosecution has miserably failed to substantiate this motive as no evidence has been produced except the hearsay assertion of the complainant that cannot take place of legal evidence to prove the motive set up in FIR (Exh.PD/2). It is true that prosecution is not under obligation to establish a motive in every murder case but it is also well settled principle of criminal Jurisprudence that if prosecution sets up a motive and fails to prove it, then, it is the prosecution who is to suffer and not the accused. We are very respectfully relying on the case of Noor Muhammad v. The State and another (2010 SCMR 97) wherein the Hon'ble Supreme Court of Pakistan has emphasized as under:- "It has been held in the case of Muhammad Sadiq v. Muhammad Sarwar (1979 SCMR 214) that when motive is alleged but not proved then the ocular evidence required to be scrutinized with great caution. In the case of Hakim Ali v. The State (1971 SCMR 432) it has been held that the prosecution though not called upon to establish motive in every case, yet once it has set up a motive and failed to establish it, the prosecution must suffer consequence and not the defence. In the case of Ameenullah v. State (PLD 1976 SC 629) it has been held that where motive is an important constituent and is found by the Court to be untrue, the Court should be on guard to accept prosecution story".

18. Our careful appraisal and independent analysis of the evidence on the record, coupled with the defence version advanced by the appellant in his statement under section 342, Cr.P.C., the prosecution evidence deserves to be rejected, which have created an impression on our minds that the prosecution has failed to prove the case against the appellant Abdul Ghaffar beyond a reasonable doubt. The depositions of eyewitnesses (PW-6 and PW-7) are not up to the mark on the basis whereof no conviction can be recorded. The appellant Abdul Ghaffar, therefore, deserves to be acquitted giving him benefit of doubt. There is plethora of judgments aired by the Hon'ble Apex Court of the country that benefit of even slightest doubt would be resolved in favour of the accused as matter of right. In this regard, we respectfully place reliance on the judgment of Hon'ble Supreme Court of Pakistan in the case of Tariq Pervez v. The State (1995 SCMR 1345) wherein it has been held as under:- "Benefit of doubt, grant of

For giving benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubts

If a simple circumstance creates reasonable doubt in a prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right."

19. Result of the aforesaid discussion is that the testimonies of both the eye-witnesses namely Mst. Jannat Bibi complainant (PW-6) and Mst. Sultana Kausar (PW-7) being tainted with heavy contradictions required corroboration but their depositions are not corroborated with any other evidence, therefore, it is unsafe to base the conviction of accused on their testimonies which cannot be said to be trustworthy in the facts and circumstances of the case. It becomes manifestly clear that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. On careful examination of entire evidence, we are of the view that learned Additional Sessions Judge committed grave illegality in convicting the appellant for committing the offence without any legal evidence worthy of credit available on record.

20. We, therefore, accept in toto Criminal Appeal No. 2160 of 2009 filed by Abdul Ghaffar appellant, as a result whereof conviction and sentence recorded by the learned trial Court vide judgment dated 01.12.2009, is set aside and the appellant Abdul Ghaffar alias Kaka son of Muhammad Asghar is ordered to be acquitted of the charge in case No.341/2008 dated 05.11.2008, offence under sections 302, 109, P.P.C. at Police Station Karianwala. The appellant be released forthwith if not required in any other case.

21. For the above reasons, Criminal Revision No. 1107 of 2012 having no substance is also dismissed, eventually, the notice for enhancement of sentence issued to the appellant Abdul Ghaffar by this Court vide order dated 31,10.2012 is withdrawn. MH/A-7/L Order accordingly.