2017 PLP 15 (YLRN)

SHAHID HAMEED DAR, J.

This Criminal Appeal (No.490 of 2010) and Criminal Revision No.205 of 2010 arise from judgment dated 29.5.2010, whereby learned Additional Sessions Judge, Rawalpindi convicted Nayab alias Nabi (appellant) under sections 324 and 302/34, P.P.C. and sentenced him as under:- i) Under section 324, P.P.C.: to rigorous imprisonment for seven years with fine of Rs.50,000/- for making an attempt to commit Qatl-e-amd and in default thereof to undergo simple imprisonment for two months. ii Under section 302/34, P.P.C.: to imprisonment for life with the direction to pay a sum of Rs.1,00,000/- to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. He was, however extended the benefit of section 382-B, Cr.P.C. with the observation that his sentences would run concurrently.

2. The occurrence took place, at 8.30 p.m. on 23.10.2007, in the area of Committee Chowk, situated at a distance of half kilometer towards south from Police Station Waris Khan (Rawalpindi). It was reported by Aamir Hameed complainant (not produced) to Abdul Majeed SI (P.W.12) at General Hospital Rawalpindi, at 10.30 p.m., who scribed complaint (Exh.PM) and despatched it to Police Station Waris Khan (Rawalpindi) through Muhammad Hussain 4915/C (P.W.2) for registration of a case, on the basis whereof Muhammad Riaz ASI (P.W.10) drew up formal FIR (Exh.PM/1), at 10.50 p.m., the same day.

3. The prosecution case as alleged by the complainant in FIR (Exh.PM/1) is that his brother Imran Hameed (inadvertently marked as P.W.10 by the learned trial court, as Muhammad Riaz ASI, who chalked out formal FIR was also marked as P.W.10 by it) and Haji Sajjad Ahmad (since PO) jointly ran the business of 'rent a car' in the name of Ahmad Tours at Hameed Khan Road, opposite to United Hotel; his paternal cousin (Tayazad) Zeeshan alias Shani struck a deal for sale of a plot, situated at Islamabad with Haji Sajjad Ahmad for Rs.28,00,000/-; Haji Sajjad Ahmad gave a cheque, equivalent to the said amount to Zeeshan alias Shani, which was payable on 1.10.2007; in the meanwhile, Haji Sajjad Ahmad resiled from the deal, which led to convening of a Jirga at about 8.30 p.m. on 23.10.2007 on the first floor of 'Ahmad Tours', so as to resolve the dispute, which was attended by Imran Hameed (P.W.10), Zeeshan alias Shani (deceased), Haji Sajjad Ahmad (PO) and his companions Imran alias Kaka (PO) and an unknown person, whom he (complainant) could identify, if seen again; Imran Ahmad son of Ahmad Ali PW (not produced) and Malik Adnan Majeed (P.W.9) also participated therein; it was decided that Zeeshan alias Shani would return the cheque to Haji Sajjad Ahmad, but it did not so happen and they exchanged hot words inter se; suddenly Haji Sajjad Ahmad, Imran alias Kaka and their unknown companion pulled out their pistols aggressively and attacked Zeeshan alias Shani; on his own Lalkara as to teach a lesson to Zeeshan alias Shani for not refunding the cheque, Haji Sajjad Ahmad accused (PO) fired straight into the right lumber region of Zeeshan alias Shani, followed by Imran alias Kaka's fire shot, which landed on left side of abdomen of Imran Hameed (P.W.10); the unknown accused hit right thigh of Imran Hameed by making a fire with his pistol and lastly Haji Sajjad Ahmad fired again, which hit left lumber area of Zeeshan alias Shani; both the injured fell on the ground; all three attackers fled the spot, waving their pistol, when he (complainant) and his companions raised a noise; the accused had committed the crime with intent to murder the two; the occurrence was witnessed by him and those, on his side; they shifted the injured to General Hospital Rawalpindi.

4. Dr.Zia-ur-Rehman (P.W.8) medically examined Zeeshan alias Shani, when alive and in injured condition and Malik Imran Hameed injured PW, at 9.50 p.m. on 23.10.2007, vide Medico-legal Reports Exh.PG and Exh.PH. He found following injuries on their persons:- ZEESHAN ALIAS SHANI:

1. A lacerated wound (oval shaped) measuring 2 cm x 2 cm x blind deep on left side of chest. X-ray of chest with metallic dust was advised. The injured was referred to surgical unit on call (SU) for expert opinion and management.

2. A lacerated wound (oval shaped) measuring 2 cm x 2 cm x blind deep on light hypochondrium, X-ray and ultrasound of abdomen were advised. The injured was referred to surgical unit on call (SU.II) for expert opinion and management. MALIK IMRAN HAMEED:

1. A lacerated wound of entry measuring 1 cm x 1 cm x blind deep on lateral upper 1/3rd of right leg. X-ray of right leg was advised.

2. A lacerated wound of exit measuring 1.5 cm x 1.5 cm x blind deep on anterior lower left side of abdomen. X-ray and ultrasound of abdomen was advised. The patient was referred to surgical unit on call (SU.II) for expert opinion and management. Blood stained clothes were handed over to the police.

5. Zeeshan alias Shani succumbed to the injuries at 1.00 a.m. on 24.10.2007, which fact is manifest from the death certificate (Exh.PBB) issued by a medical officer of RGH Rawalpindi. His dead body was dissected by Dr. Muhammad Ilyas (P.W.11), at 5.30 a.m. on 24.10.2007 vide postmortem examination report (Exh.PQ). The medical officer found following injuries on the dead body:-

1. One stitch on the right side of chest above the 1st rib, from abdomen in mid-axillaries-line, 21 cm from right nipple. On opening/removal of stitch, it was an oval shaped lacerated wound measuring 1/2 cm, with blackened area of about 4 cm around inverted margins. It was an entry firearm wound.

2. Three stitches on the left side of chest above the second rib from abdomen (coastal margin) in anterior auxiliary line, 16 cm from left nipple. 1 cm oval blackened lacerated wound, margins everted. It was an exit firearm wound.

3. A surgical wound in front of abdomen below the xiphisternum with 12 stitches above umbilicus and four stitches below umbilicus.

4. An abrasion over the left side of nose 1/2 cm rounded. The medical officer recorded a tentative cause of death of the deceased by opining that the firearm injuries had damaged his vital organs, including liver, spleen and stomach, which led to the haemorrhagic shock and death. He prepared samples of the said vital organs of the deceased and despatched them to the Chemical Examiner's office as well as that of the Bacteriologist for detection of poison, if any and to know the nature of the vascular congestions and the internal haemorrhages, if ante-mortem or otherwise. He deferred recording his final opinion as to cause of death, till receipt of the expert-reports. The probable time that elapsed between injuries and death was "about three hours" and that elapsed between death and postmortem examination was eight to twelve hours. On receipt of a negative Chemical Examiner's report (Exh.PY) and report of the Histopathologist/ Bacteriologist, the medical officer recorded final cause of death of the deceased by maintaining that it had occurred due to damage to his vital organs, liver, spleen and stomach.

6. Abdul Majeed SI (P.W.12) carried out the investigation of this case. According to him, prior to his arrival at RGH Hospital, Rawalpindi, Muhammad Arif SI (P.W.13) had reached there and prepared the injury statements (Exh.PU and Exh.PT) of both the injured, Zeeshan alias Shani and Imran Hameed, respectively, which he handed over to him when he went there; Kamran Majeed informed him that his injured brother, Zeeshan alias Shani had succumbed to the injuries, whereupon he added offence under section 302, P.P.C. to the list of existing offences; he prepared inquest report (Exh.PO) of the deceased, wrote an application (Exh.PQ) for postmortem examination and despatched the dead body to the mortuary under the escort of Javed Iqbal 355/C (P.W.3); thereafter, he proceeded to the spot, inspected it and prepared visual site-plan (Exh.PS); he secured blood of both the injured by means of cotton from the place of occurrence vide seizure memo Exh.PC; seized a bullet-head (P2) from the spot through memo of recovery Exh.PD; Javed Iqbal constable (P.W.3) produced before him last worn clothes of the deceased, Qameez (P3), Shal-war (P4) and Bunyan (P5), which were secured through memo of recovery Exh.PA; afterwards, Adnan Majeed, brother of the deceased, produced before him a copy of the cheque and its original dishonour slip (Exh.PJ and Exh.PK), which were taken into possession vide memo of recovery Exh.PL; he got prepared visual site-plan (Exh.PE) from Khurram Shahzad, draftsman (P.W.6); he arrested Nayab alias Nabi accused (appellant) on 20.11.2007 and got recovered pistol .30-bore (P1) and four live bullets (P1/1-4) at his instance, vide memo of recovery Exh.PB; he obtained non- bailable warrants of arrest of Sajjad and Imran alias Kaka accused, who could not be arrested as they had wilfully concealed themselves somewhere unknown; he after completing all legal formalities got them declared proclaimed offenders. On completion of investigation he prepared report under section 173, Cr.P.C. against the appellant and submitted it before the learned trial court for his trial in accordance with the law.

7. To prove its case, the prosecution produced fourteen witnesses. Dr. Zia-ur-Rehman (P.W.8) proved the Medico-legal Reports (Exh.PG and Exh.PH) of Zeeshan alias Shani injured and Imran Hameed injured. Dr. Muhammad Ilyas (P. W.11) proved contents of the postmortem examination report (Exh.PN) of Zeeshan alias Shani deceased. Aamir Hameed complainant was given up being mentally unfit, however, Malik Adnan Majeed (P.W.9) and Malik Imran Hameed, injured (P.W.10) furnished the ocular account. They claimed to have seen the appellant Nayab alias Nabi, joined by his co-accused Sajjad Ahmad and Imran alias Kaka (since POs) firing at the spot and causing injuries to Imran Hameed (P.W.10). The eye-witnesses also supported the motive as alleged by the prosecution. Abdul Majeed SI (P.W.12) is the investigating officer, who rendered details of the investigation conducted by him. Rest of the evidence is more or less of formal nature.

8. When examined under section 342, Cr.P.C., Nayab alias Nabi (appellant) denied all the incriminating circumstances, put to him and in reply to question, "Why this case against you and why the PWs deposed against you?" he stated as under:- "I am innocent. I was not nominated in FIR by the complainant, his evidence was withheld by the prosecution. The other PWs falsely implicated me, the injured PW after about three days of occurrence falsely involved me." He did not opt to appear under section 340(2), Cr.P.C., but he tendered in evidence a copy of report under section 173, Cr.P.C. along with the copy of remand-paper as Exh.DC and closed his defence. On culmination of trial, the learned trial court pronounced verdict of guilt against the appellant, in mentioned terms and sentenced him accordingly.

9. Learned counsel for the appellant has contended that the prosecution case is bereft of any incriminating evidence against the accused and he has been convicted merely on conjectures and surmises; the complainant or the eye-witnesses did not attribute any effective role to the appellant in their statements, recorded by the police and it was why, the complainant withdrew himself on the pretext of having an upset mind and the other eye-witnesses who testified during trial, made dishonest improvements in their testimonies, so as to create false evidence against him; the medical evidence is inconsistent with the ocular account, which otherwise, is also pregnant with countless contradictions and discrepancies; the recovery of a pistol at the instance of the appellant is inconsequential as it was not sent to the Ballistic Expert for looking into its probable linkage with the crime empty, if any; the eye-witnesses failed to make it a case of believable nature against the appellant and they merely beat about the bush in their anxiety to stitch him with the false case without any tangible success; the impugned judgment has been passed by the learned trial court ineptly, without caring for the settled principles for dispensation of criminal justice; the judgment under challenge does not ingrain even an iota of viability or reasonableness, hence, it may be set aside and the appellant may be pronounced acquitted of the charge.

10. Contrary to the above, learned counsel for the complainant has submitted that the impugned judgment is based on credible ocular account, well corroborated by the medical evidence and the factum of recovery of pistol (P 1) at the instance of the appellant, besides other ancillary connected pieces of evidence, rendered by the remaining prosecution witnesses; the impugned judgment has been impeccably passed by the learned trial court, which may be sustained at the cost of appeal, filed by the appellant.

11. Learned Deputy Prosecutor General Punjab did not look much enthusiastic about the convicting attributes/ character of the impugned judgment, though he opposed this appeal and prayed for its dismissal by adopting the arguments of the learned counsel for the complainant, but with an empty intonation.

12. Learned counsel for the parties have been heard and the record has been minutely gone into with their able assistance. An overwhelming impression arises from the contents of the FIR (Exh.PM/1) that both the persons, Zeeshan alias Shani and Imran Hameed, allegedly hit by the firing of the accused had been shifted to General Hospital Rawalpindi by the complainant, Aamir Hameed (not produced), Malik Adnan Majeed (P.W.9) and Imran Ahmad PW (not produced). Zeeshan alias Shani succumbed to the injuries at 1.00 a.m. on 24.10.2007 as is manifest from the death certificate (Exh.PBB), issued by the General Hospital Rawalpindi, but not before he was medically examined by a medical officer vide MLR (Exh.PG), like the co -injured Malik Imran Hameed (P.W.10) through MLR (Exh.PH), both issued by Dr. Zia-ur-Rehman (P.W.8). As per their own contentions, Malik Adnan Majeed (P.W.9) and Malik Imran Hameed (P.W.10), the eye-witnesses categorically stated in their testimonies that their statements under section 161, Cr.P.C. had been recorded by the police at the hospital. Malik Adnan Majeed (P.W.9) contended that he was recorded at about 11/12 p.m. on 23.10.2007 and Malik Imran Hameed (P.W.10) mentioned the date of his statement as 26.10.2007. Abdul Majeed SI/IO (P.W.12) recorded complaint (Exh.PM) on the statement of Aamir Hameed (complainant/not produced) at 10.30 p.m. on 23.10.2007 at General Hospital Rawalpindi, wherein the appellant had not been mentioned as an accused and instead, it was an unknown person to have been written therein with the allegation that his fire-shot hit right thigh of Imran Hameed (P.W.10). The complainant did not render any supplementary statement during investigation so as to nominate the appellant as an accused of this case. If all the eye-witnesses, named as above, were present together at the General Hospital Rawalpindi, when Abdul Majeed SI/IO (P.W.12) recorded complaint (Exh.PM) on the statement of Aamir Hameed, how come the appellant's name was not mentioned therein as an accused. Malik Adnan Majeed (P.W.9), who also tendered statement under section 161, Cr.P.C. (Exh.DA) there, asserted, that Imran alias Kaka accused (PO) had fired at and injured his Chachazad Malik Imran Hameed (P.W.10) and Nayab alias Nabi accused also fired at him, but did not specify if this fire shot hit him or not. Similar was the contention of the injured Malik Imran Hameed (P.W.10) in his statement under section 161, Cr.P.C. (Exh.DB), which he tendered before the investigating officer on 26.10.2007.

13. When medically examined at about 9.50 p.m. on 23.10.2007 Malik Imran Hameed (P.W.10) was found fully conscious (well) oriented with (all) vitals stable by the medical officer, but investigating officer did not record him under section 161, Cr.P.C. on the said day and delayed it till 26.10.2007 without any compelling reason. He frankly admitted that he did not take any steps for recording his (Malik Imran Hameed) statement on 24.10.2007 and 25.10.2007. About his act of recording him on 26.10.2007, he introduced a strange factor by deposing that he had moved an application before the medical officer on the said day so as to learn about his ability to speak, in reply to which, the medical officer verbally told him that he was fit enough to make a speech, but he did not express his opinioh in a written-foun. Muhammad Arif SI (P.W.13), who is not the investigating officer and merely did the duty of getting the hit-duo medically examined, however, appeared to have moved a written application (Exh.PV) before the medical officer on 23.10.2007, so as to know about the faculty of speech of the injured witness and obtained the opinion that he was not fit enough to make statement. This particular opinion of the medical officer looks gratuitous as it contradicted the findings of even date of the medical officer (P.W.8), who found the injured at the time of his medical examination, fully conscious and well-oriented with all vitals stable and intact. Regardless of the controversy, if his (P.W.10) statement under section 161, Cr.P.C. was backed by a valid opinion of the medical officer or not, the fact cannot be denied that he did not attribute any injury on his person to the appellant and he only talked of an ineffective fire shot by him therein. Both the recorded eye-witnesses (P.W.9 and P.W.10) did not say a word in their statements (Exh.DA and Exh.DB) as to how they knew Nayab alias Nabi (appellant) on the fateful day and how the complainant failed to nominate him as an accused in the FIR (Exh.PM/1), despite being real brother of Malik Imran Hameed (P.W.10) and chachazad of Malik Adnan Majeed (P.W.9), when they too were present there. Abdul Majeed SI (P.W.12) also failed to remove the haziness in this context rather, he added to the confusion by contending that Nayab alias Nabi (appellant) was nominated by Malik Adnan Majeed (P.W.9) in his supplementary statement, which he recorded at about 10.00 p.m. on 23.10.2007 at the General Hospital Rawalpindi. He added that he could not tell if he recorded the supplementary statement at 11.00 p.m. or 12'O clock night. Malik Adnan Majeed (P.W.9) did not, however, claim anywhere in his testimony to have rendered supplementary statement to involve the appellant in this case. The investigating officer (P.W.12) maintained that the statements of the eye-witnesses were recorded by him at the General Hospital Rawalpindi on 23.10.2007, where he had recorded the complainant under section 154, Cr.P.C., the same day. The nomination of the appellant as an accused of this case is a doubtful circumstance, the effects whereof could not be clarified by the prosecution during the course of the trial.

14. The ocular account as furnished by Malik Adnan Majeed (P.W.9) and Malik Imran Hameed (P.W.10) is replete with a few crucial contradictions and discrepancies. The said PWs made dishonest improvements in their testimonies and thereby reduced creditworthiness thereof fatuously. They introduced an attribution to the appellant in their testimonies that a fire-shot was made by him hitting right thigh of Malik Imran Hameed (P.W.10) as a result of which he fell down in injured condition. It was a well thought departure from their statements (Exh.DA and Exh.DB), wherein they had contended that Imran alias Kaka (since PO) fired a pistol shot due to which Malik Imran Hameed fell in injured condition, whereafter Nayab alias Nabi accused (appellant) also fired through his pistol .30-bore at him (Malik Imran Hameed), without specifying, if the bullet hit him or not. Both the eye-witnesses might have thought of getting away with their improved versions but they were badly mistaken as they were timely caught up and confronted with their previous statements in this regard and it transpired that they had not stated so therein. Malik Adnan Majeed (P.W.9), as to recording of his statement under section 161, Cr.P.C. and making afore-noted departure from it, stated as under:- "My statement was recorded on 23.10.2007 by the I.O. But I cannot tell that at what time was recorded. My statement was recorded probable between 10 to 12 night on 23.10.2007. I have recorded in my statement under section 161, Cr.P.C. that I joined the investigation on 23.10.2007. Confronted with Ex.DA where 23.10.2007 is not mentioned but 23.11.2007 is mentioned. Witness stated that this is the omission of I.O. I have stated in my statement under section 161, Cr.P.C. Ex.DA that Nayab fired upon Imran Hameed which landed on the thigh of Imran Hameed confronted with Ex.DA where it is mentioned that Nayab fired upon Imran Hameed but locale of injury is not mentioned. I have stated in Ex.DA that third fire was shot by Nayab accused which hit Imran Hameed. Confronted with Ex.DA where word third fire is not mentioned. However, it is mentioned that Nayab alias Nabi also fired upon Imran Hameed." The other eye-witness Malik Imran Hameed (P.W.10) was also effectively confronted with his previous statement (Exh.DB), as to the improvement made. The relevant excerpt of his testimony is given hereunder:- "My statement was recorded by the police on 26.5.2007 in the hospital. I had stated in my statement under section 161, Cr.P.C. that fire made by Nayab Abbasi accused landed on my right Thigh. Confronted with Ex.DB where seat of injury is not mentioned. I had also stated in my statement Ex.DB that fire made by Nayab accused which hit me. Confronted with Exh.DB where it is mentioned that Nayab alias Nabi accused fired upon me with pistol .30 bore." The medico-legal report (Exh.PH) of Malik Imran Hameed injured (P.W.10) entails two firearm injuries, one entry and the other exit, which initially stood attributed to Imran alias Kaka accused (PO). The complainant, Aamir Hameed, who had been given up as having developed some psychological/mental complications, mentioned in complaint (Exh.PM) that the abdominal injury on the person of Malik Imran Hameed (P.W.10) had been caused by Imran alias Kaka accused (PO) and that on his right thigh by the unknown accused. He did not name the appellant as an accused during the investigation. He was cleverly abandoned by the prosecution on the pretext of getting mentally upset but they produced no evidence at trial to prove his illness. It looked as if he showed no inclination to depose against the appellant in the backdrop of a distorted and improved upon allegation, which left the prosecution with no other choice but to give him up. Malik Adnan Majeed (P.W.9) and Malik Imran Hameed (P.W.10) had specifically contended in their statements under section 161, Cr.P.C. (Exh.DA and Exh.DB) that fire shot of Imran alias Kaka accused (PO) had injured Malik Imran Hameed and about the appellant's shot they said nothing of the sort except for stating that he had fired at him. The medical evidence, as referred to above and detailed in paragraph 4 of this judgment, unequivocally reveals that injuries Nos.1 and 2 on the person of Malik Imran Hameed have been caused by a single fire shot, being entry and exit of one and another. The medical officer, Dr. Zia-ur-Rehman (P.W.8), who medically examined Malik Imran Hameed confirmed in his testimony that injury No.2 was an exit of injury No.1. There was no other injury on the body of the said injured, which could be attributed to the appellant.

15. The improvements made by both the eye-witnesses (P.W.9 and P.W.10) may easily be termed dishonest ones, hence, ruled out of consideration. They themselves marred believability of their testimonies by making unscrupulous improvements so as to entangle the appellant in this case and they did so without caring for the impact thereof. It is settled principle of criminal jurisprudence, when a witness improves his version to strengthen the prosecution case, his changed statement could not be relied on being a dishonest rendition of events. It has been held by the apex court in Farman Ahmed v. Muhammad Inayat and others (2007 SCMR 1825) as under:- "It is also a settled maxim when witness improves his version to strengthen the prosecution case, his improved statement subsequently made cannot be relied upon as the witness had improved his statement dishonestly, therefore, his credibility becomes doubtful on the well known principle of criminal Jurisprudence that improvements once found deliberate and dishonest cast serious doubt on the veracity of such witnesses."

16. Besides the positions of the accused, the eye-witnesses, the deceased and that of the injured PW have been discrepantly mentioned by the eye-witnesses. They have frankly admitted in their testimonies that the appellant had no dispute with the deceased or the injured witness at the time of the occurrence, which meant that he was least concerned with the incident of motive as narrated by them, hence, his participation in the Jirga, held on 23.10.2007 was hardly believable. The raison d'etre as alleged by the prosecution was not only irrelevant but appeared to have gone unsubstantiated, so far as the appellant's alleged participation therein was concerned. The ocular account as furnished by Malik Adnan Majeed (P.W.9) and Malik Imran Hameed (P.W.10) hardly contained any iota of truth, as to participation of the appellant in the crime, hence, ruled out of consideration being untrustworthy and unreliable.

17. The evidence of recovery of pistol .30-bore (P1) with four live bullets (P1/1-4) on 20.11.2007 vide memo of recovery (Exh.PB) at the instance of the appellant is equally worthless, for this weapon was not sent to the office of Forensic Science Laboratory. How can this weapon be linked with the murder-in -issue is a crucial question which has gone unanswered during trial. This firearm, without report of the ballistic expert, cannot be believed to have been used in the occurrence. Being it an immaterial piece of evidence, it cannot be read against the appellant, hence swept-aside.

18. The prosecution case is full of fallacies, self-contradictions and inconsistencies, which leads to only one irresistible conclusion that the prosecution fell miles short of their bounden duty of proving the guilt of the accused/appellant beyond any reasonable shadow of doubt. The impugned judgment has been passed merely on conjectures and surmises, without any regard to the settled principles of dispensation of criminal justice, hence, it is liable to be annulled. Done accordingly.

19. The conviction and sentence of the appellant is set-aside and he is acquitted of the charge. He shall be released from the prison forthwith if not needed in connection with any other case.

20. The appeal stands allowed.

21. Insofar as Criminal Revision No.205 of 2010 filed by the petitioners for enhancement of sentence of the appellant is concerned, it, being meritless, is dismissed. RR/N-48/L Appeal allowed.