2016 PLP 398 (MLD)

QAZI MUHAMMAD AMIN AHMED, J.

Criminal Appeal No. 105 of 2007 is clubbed with Crl. Revision No.79 of 2007 that arises out of an incident which occurred on 4-6-2003 at Maghrab Vela within the area of Mauza Katcha Kot Mithan Sharif situating at a distance of 4 Kilometers from Police Station Kot Mitthan of District Rajanpur wherein Nazir Ahmad, hereinafter referred to as the deceased, was done to death. The incident was reported by his son Rasheed Ahmad (PW-6), through complaint (Ex.PD) recorded by Muhammad Bilal Aslam, S.I (PW-8) at 8.45 p.m at Pull Nishtar Ghaat Kot Mithan. Prosecution case as per (Ex.PD) is that on the fateful day i.e. 04.06.2003, the deceased took his goat for insemination to the farm house of Rao Liaqat Ali situating at a distance of 7 acres, where Muhammad Arif hereinafter referred to as the appellant was employed as a servant maintaining herd of goats; when the deceased did not return, Rasheed Ahmad (PW-6) in the company of Ghulam Shabbir and Imam Bakhsh his paternal and maternal uncles respectively followed him and as they entered the Dera/farm house, they saw the deceased and the appellant abusing each other and within their view the appellant fired shot with a 12 Caliber Gun hitting straight the deceased on his forehead who fell on the cot lying nearby. The appellant decamped and when the witnesses attended the deceased, he had already breathed his last. Motive for the occurrence is that the deceased owed some amount to the appellant and a demand ensued altercation.

2. The autopsy was conducted on the following day i.e. 5-6-2003 at 10.15 a.m by Dr. Gul Hassan Shah (PW-4), who noted a large contused firearm lacerated wound measuring 14 cm x 7 cm with oval shape around the nasal bridge; extensively damaging the frontal side of the face, resulting into fracture of skull bones, smashing both eyes cribri and both left parietal and temporal bones; this injury was sufficient to cause death in the ordinary course. From the spot, bloodstained earth and cot (P-3) were taken into possession alongwith pair of shoes (P-4/1-2) vide memos (Ex.PE & Ex.PF) respectively. The appellant was arrested on 23.06.2003 when pursuant to a disclosure, he led to the recovery of 12 Caliber Gun (P-5) from a cotton field.

3. Upon conclusion of investigation, the appellant was sent before a learned Additional Sessions Judge at Rajanpur to face trial where on 20.11.2003, he was indicted when he pleaded not guilty and claimed trial; pursuant whereto the prosecution produced as many as 8 witnesses to bring home charge against him; he confronted the prosecution evidence with a denial.

4. Upon conclusion of trial, learned Addl. Sessions Judge, Rajanpur vide judgment dated 17.02.2007 convicted the appellant under section 302(b), P.P.C. and sentenced him to imprisonment for life with compensation of Rs.200,000/- or to undergo six months imprisonment in default of payment thereof with benefit of Section 382(b) Cr.P.C. 3(sic) Learned counsel for the appellant contends that the case of the prosecution is fraught with contradictions, inconsistencies and improbabilities and as such the learned trial Judge erred in placing reliance thereon in a case involving capital charge; that motive cited in the First Information Report is false and fallacious; that witnesses are closely related and despite availability none from the locality was associated to support the prosecution case. 4(sic) Contrarily, learned Law Officer has defended the impugned judgment and while arguing Crl. Rev. No.79 of 2007 contended that it is a case of single accused with a single shot in which the culpability of the appellant stands established beyond a shadow of doubt and that once the trial Court was satisfied about the culpability of the appellant, there was no occasion for the learned trial Judge to visit him with any degree of leniency, therefore, sentence awarded to appellant merits enhancement.

5. Heard. Record perused.

6. No doubt it is a case of single shot by a single accused where ocular account is found in line with medical evidence and the appellant is also saddled with recovery of gun coupled with a motive, nonetheless, this apparently perfect structure of the case, notwithstanding, prosecution case warrants a careful scrutiny for more than one reason. A detailed disclosure by the deceased to the PWs about his intended visit to the place of occurrence for the purpose of insemination of goat is sharing of an information which is not very palatable or interesting and as such the disclosure reflects an usual conduct; if this information is excluded from consideration, there was no occasion left for the PWs to follow the deceased and view the occurrence; arrival of the PWs, three in number at the place of occurrence exactly at a point of time when the appellant fatally shot the deceased is a coincidence which seldom occur. Even otherwise in the absence of any special reason or circumstance, there was no earthly reason for the witnesses to set out in search of the deceased. Motive cited for the crime also requires a pinch of salt. Deceased was medically examined at RHC Kot Mithan, a town located at a distance of about 4 kilometers from the place of occurrence; in this backdrop, belated post mortem examination at 10.15 a.m. on the following day of the occurrence is suggestive of the fact that the inquest report was not ready till late in the day. Presence of deceased on a cot and seizure of pair of shoes spell out a scenario much different than the story given in the complaint (Ex.PD). Narrative precision no matter how impressively articulated alone cannot form basis for conviction on capital charge unless it fits in the ambit of probability. The recovery does not advance case of the prosecution as no casing was found from the spot and as such no comparison of Gun (P-5) was possible. Motive does not extend structural support to the prosecution either. In this backdrop, it would be unsafe to maintain conviction as there are doubts lurking over the case of prosecution; these doubts are neither illusory nor imaginary rather rooted into the stated positions of the prosecution; their benefit cannot be denied to the appellant merely because he is sole nominee in the crime report burdened with solitary fatal fire shot. A single accused or a group of them are to be adjudged alike on the touchstone of probability and truthfulness. Therefore, while extending benefit of doubt to the appellant, Crl.Appeal No. 105 of 2007 is allowed. He is acquitted from the charge. He is on bail; his surety is discharged.

7. As a necessary corollary of above findings, Crl. Revision No.79 of 2007 stands dismissed. YN/M-221/L Appeal allowed.