2017 P Cr (PLP)

ABDUL SAMI KHAN, J.

Through this appeal under section 410, Cr.P.C. the appellant has challenged the vires of the judgment dated 17.11.2008 handed down by the learned Additional Sessions Judge, Kharian wherein the appellant was convicted under section 302(b), P.P.C. and he was sentenced to undergo life imprisonment by the learned trial court. He was further ordered to pay an amount of Rs.700,000/- to the legal heirs of Mst. Fehmida Begum deceased by way of compensation under section 544-A, Cr.P.C. or in default of payment thereof to further undergo simple imprisonment for six months. The benefit of section 382-B, Cr.P.C. is extended in favour of the appellant. The appellant has challenged his conviction and sentence before this Court through the instant appeal whereas the complainant has also filed Criminal Revision No. 66 of 2008 for enhancing the punishment of the appellant from life imprisonment to capital sentence of death. I propose to decide both these matters together through this consolidated judgment.

2. According to the prosecution story set forth in the FIR the complainant is resident of Sardhock and he is labourer by profession. On the fateful night he along with his wife and other family members was sleeping when at about 1.30 a.m. two unknown persons came at the rooftop of his house. All of sudden the wife of complainant woke up and the accused person made fire from pistol .30 bore which landed on back side of her neck who fell down from the cot and died at the spot. On hearing voice of fire Zahid Hussain, brother of the complainant and Shakeel Ahmad, son of the complainant attracted to the spot whereupon the accused persons fled away from the scene of crime by making aerial firing. Zahid Hussain, brother of the complainant and Shakeel Ahmad, son of the complainant had seen the accused person in the light of electric bulb when they were fleeing away from the spot and it is stated that if the accused persons came before them they would be identified. The police reached at the spot and upon application of the complainant formal FIR No. 357/07, dated 12.07.2007 has been registered at Police Station Sadar Sarai Alamgir, Tehsil Kharian, District Gujrat in respect of an offence under section 302(b), P.P.C. read with section 34, P.P.C.

3. The prosecution in order to prove its case against the appellant examined as many as twelve prosecution witnesses before the learned trial court. The ocular account has been furnished by Mst. Naheed Akhtar (PW10) and Ahmad Khan, complainant (PW11). The medical evidence in this case was furnished by lady Dr. Adeba Farhat, Women Medical Officer, Tehsil Headquarter Hospital, Kharian who had conducted post-mortem examination on the deadbody of deceased Mst. Fehmida Begum. Muhammad Yousaf, SI/investigating officer has appeared as PW12 who had stated about various steps taken by him during the investigation of this case. Remaining evidence produced by the prosecution witnesses is more or less formal in nature.

4. In his statement recorded under section 342, Cr.P.C. the appellant had controverted the allegations leveled against him by the prosecution and he had also professed his innocence. He has neither opted to appear before the learned trial court to adduce evidence under section 340(2), Cr.P.C. on oath nor has he opted to produce defence evidence to prove his innocence.

5. Upon completion of the trial the learned trial court found the case against the appellant to have been proved beyond any reasonable shadow of doubt and, thus, convicted and sentenced him as mentioned and detailed above. Hence, this appeal before this Court.

6. Learned counsel for the appellant submits that the prosecution has miserably failed to prove the case against the appellant beyond any reasonable shadow of doubt. Learned Deputy Prosecutor General assisted by learned counsel for the complainant submits that the prosecution has proved the guilt of the appellant to the hilt. Learned counsel for the complainant has also prayed for enhancing the sentence of life imprisonment inflicting upon the appellant to that of death penalty.

7. I have heard the learned counsel for the parties at length, have given my anxious consideration to their arguments and have also scanned the record with their able assistance.

8. According to the case of prosecution the occurrence in this case has taken place at 1.30 am on 12.07.2007 and the same was reported to the police at 3.30 am on the same night whereas the FIR in this case has been chalked out at 4.14 am but a perusal of Post-mortem Examination Report (Ex. PB) shows that although the deadbody was reached at hospital at 3.30 am yet the Post-mortem Examination was conducted on the deadbody at 10.35 am. There is no explanation why the deadbody was kept in the hospital from 3.30 am to 10.35 am (more than seven hours). That particular aspect of the matter has been cleared by the doctor when in response to questions she deposed as under:- "It is correct that prior to conducting of postmortem examination, relevant papers were received and then postmortem examination was started. I received the relevant police papers at 10.35 am." Thus, from the above said statement of the doctor it has made clear that time between 3.30 am to 10.35 am has been consumed by the prosecution to think over matter and carving a story of blind murder to falsely entangle the appellant in this case. Therefore, the FIR in this case has not been lodged at a time mentioned therein rather the same has been chalked out after due deliberations and consultations.

9. According to the contents of the FIR lodged by Ahmad Khan, complainant (PW11) Mst. Fahmida Begum deceased was done to death by two un-known persons after giving firearm injury of pistol .30 bore on back side of her neck when all the family members of the complainant were sleeping on roof of his house at about 1.30 am. According to the story narrated in the FIR the complainant has himself not seen the appellant making firing at the deceased. Initially he had introduced two eye-witnesses namely Zahid Hussain, his brother and Shakeel Ahmad, his son who had seen the appellant in the light of bulb while fleeing away in a street but astonishingly both the above said two eye-witnesses were not produced by the complainant before the learned trial court in spite of the fact that their name have been mentioned in the FIR. It has come on evidence that Qadeer Hussain was known to the complainant party prior to taking place of the occurrence but astonishingly the complainant has not named him in the FIR. After lodging the FIR the complainant has got recorded supplementary statement wherein he has introduced the appellant as the culprit who allegedly had perpetrated the offence but according to narration of the supplementary statement (Ex.PA) his daughter Mst. Naheed Akhtar had told him about the appellant to whom the deceased herself had apprised that the person who had made firing at deceased was Qadeer Hussain appellant. The appellant has been introduced as an accused in this case by the complainant after allegedly getting information from PW

10. Admittedly, according to the prosecution's own case neither the complainant himself had identified the appellant nor above said two eye-witnesses had identified him but later on Mst. Naheed Akhtar, daughter of the complainant (PW 10) told the complainant that the unknown culprit was actually the appellant because she allegedly claimed that she has been told about the appellant by the deceased. So right from reporting the crime to the police till making supplementary statement it can safely be held that this period has been consumed by the prosecution witnesses to involve the appellant in this case after deliberations and consultations regarding the murder of Mst. Fahmida Begum deceased.

10. Another intriguing feature in this case is that the best evidence available with the prosecution was withheld because Zahid Hussain, his brother and Shakeel Ahmad, his son have not been produced by the prosecution as eye-witnesses in this case rather they were substituted by Mst. Naheed Akhtar, daughter of the complainant under some legal advice as name of PW 10 does not figure in the FIR as an eye-witness. Thus, an adverse inference under Article 129(g) of Qanun-e-Shahadat Order, 1984 can be drawn that had they been produced by the prosecution in this case they would not support the prosecution's case. Even Mst. Naheed Akhtar (PW10) has made some dishonest improvements in the prosecution story to falsely entangle the appellant in this case. During her cross-examination she has admitted that she knows the appellant from her childhood but even then she herself has not recognized the appellant at the spot but she relied upon the disclosure made by her mother (the deceased) at eleventh hour of her death. In this way she is not considered in this case as an eye-witness rather she is witness of alleged dying declaration only, otherwise she would straightaway named the appellant in this case as the person who made fire at her mother on fateful night. In her cross-examination in response to a question she replied as under:- "It is correct that from 1.30 am to 7.00 am I along with my father and other family members remained in our house. I do not know when my father became complainant of the case" Thus, if Mst. Naheed Akhtar (PW 10) remained with the complainant till 7.00 am on 12.07.2007 then why she has not told the complainant that appellant has fired upon her mother/deceased this fact alone created doubt in the prosecution story. It is settled law that benefit of slightest doubt has to be given to accused being favorite child of law. In her cross-examination Mst. Naheed Akhtar (PW10) has categorically admitted that his father and brother Shakeel Ahmad used to work at fodder machine at Sarai Alamgir. Thus, these peculiar aspects of the matter make the statement adduced by Mst. Naheed Akhtar (PW10) and Ahmad Khan, complainant (PW11) to be polluted inasmuch as result of an afterthought and this Court is of the definite viewed that at the time of occurrence neither Ahmad Khan, complainant (PW11) nor Mst. Naheed Akhtar (PW10) were present at the scene of crime at relevant time.

11. The above narrated circumstances find strength from the fact that in the FIR the seat of injury sustained by the complainant is a firearm injury on backside of the neck of Mst. Fahmida Begum deceased but later on in her statement Mst. Naheed Akhtar (PW10) made dishonest improvement and not only added one more fire but also changed the seat of injury on the person of deceased. During her statement before the learned trial court Mst. Naheed Akhtar (PW10) stated that Qadeer Hussain appellant made two fires one on right cheek and other on chest of the deceased which fact is not mentioned in the FIR. I may observe here that possibility cannot be ruled out of consideration that she had improved her statement in order to bring her testimony in line with the medical evidence. This glaring improvement once again made the case of prosecution to be doubtful. All the attending circumstances, especially the dishonest improvements made by Mst. Naheed Akhtar forbade me to believe her evidence and the evidence adduced by Ahmad Khan (PW11). It is settled law that evidence of a witness who made dishonest improvement in order to bring medical evidence in line with the ocular account lost its credibility. Reliance in this regard can be placed on the cases of Barkat Ali v. Muhammad Asif and others (2007 SCMR 1812) and Amin Ali and another v. The State (2011 SCMR 323). When a witness improves her statement on material aspect of the matter the intrinsic worth and value or her evidence become doubtful and an accused cannot be convicted on the basis of such worthless evidence. Reliance on Syed Saeed Muhammad Shah and another v. The State (1993 SCMR 550) and Muhammad Rafique and others v. The State and others (2010 SCMR 385).

12. From overwhelming analysis of evidence I may observe here that nobody himself has seen the appellant making firing at the deceased and for that reason FIR had been chalked out against two unknown culprits. Admittedly the name of Mst. Naheed Akhtar (PW10) was not mentioned in the calendar of witnesses, thus, in the backdrop of such a situation the identification parade in this case was mandatory especially in the circumstances when the complainant has taken particular stance that Zahid Hussain, his brother and Shakeel Ahmad, his son have seen the appellant in the light of bulb fleeing from the scene of crime. Therefore, in such situation it is incumbent upon the prosecution to conduct test-identification parade to prove the identity of the appellant. But in this case no test-identification parade has been conducted. This lacuna has also left question mark on the story carved by the complainant to be doubtful. As a matter of fact it was a blind murder and at belated stage the police have called witnesses to manufacture evidence against the appellant. This fact find support from the fact that according to the prosecution's case the occurrence has taken place at 1.30 am on the fateful night and Mst. Fahmida Begum deceased has died at the spot but in her Post-mortem Examination Report (Ex. PB) her death has been reported according to the police at 3.30 am on 12.07.2007. Even in the Inquest Report (Ex. PJ) the time of death is written as 3.30 am on 12.07.2007. On his first visit Muhammad Yousaf, SI/investigating officer has prepared un-sealed site-plan (Ex. PL) and he has not mentioned the name of the appellant therein inasmuch as Masood Ahmad Bhatti, Draftsman (PW6) has also mentioned two un-known persons in scaled site-plan (Ex. PC). All these facts shows that nobody has seen the appellant committing murder of the deceased and the appellant has been entangled in this case at belated stage.

13. The medical evidence in this case has been furnished by lady Dr. Adeba Barhat, Women Medical Officer, Tehsil Headquarter Hospital, Kharian. She has found two entry wound, i.e. Injury No. 1 and Injury No.

2. One is on right cheek of the deceased whereas injury No. 2 is on chest of the deceased. A bare perusal of the FIR shows that only one firearm injury is mentioned by the complainant to have sustained on back side of neck of the deceased. Thus, medical evidence in this case is in contradiction with the ocular account and is of no helpful to the prosecution. Even otherwise the medical evidence is only used for confirmation of ocular evidence to seat of injury, time of occurrence and weapon of offence, etc. but medical evidence itself does not constitute any corroboration qua the accused person for providing his culpability. Reliance in this regard can be place on the case of Muhammad Sharif and another v. The State (1997 SCMR 866).

14. Before closing my discussion into the matter, I may observe here that not many circumstances creating doubt in the prosecution case are required but only one circumstance creating doubt in the prosecution case is enough to acquit the accused. Reliance can easily be placed upon 2009 SCMR 230 wherein the Hon'ble Supreme Court has held as under: "For giving the benefit of doubt it is not necessary that there should be many circumstances creating doubts

Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefit, not as a matter of grace and concession, but as a matter of right." Similar view was affirmed in the cases of Tariq Pervez v. The State (1995 SCMR 1345) and Muhammad Akram v. The State (2009 SCMR 320). It is also golden principle of Islamic jurisprudence that it is better to acquit ten guilty persons than to convict a single innocent person.

15. Today the appellant is present in person and it has been observed that he is totally mentally derailed, unable to understand and speak having already lost one eye. He has been produced before this Court by Muhammad Khan Ranjha, SI who has affirmed that the appellant is mentally distorted and he has found him from his village after making hectic efforts with the help of his father who too is present before this Court in person.

16. The upshot of my discussion made above is that clouds of doubts are looming large in this case rendering the same to be based on polluted evidence of interested witnesses who have been called at belated stage to create evidence just to strengthen the case of prosecution. Thus, the prosecution has failed to prove its case against the appellant beyond any reasonable shadow of doubt. Criminal Appeal No. 1416 of 2008 is, therefore, allowed and the appellant is acquitted of the charge by extending benefit of doubt to him. He is present before this Court in person today. His sentence has already been suspended by this Court vide order dated 08.04.2009. His bail bonds are released and surety shall stand discharged from his liability.

17. In sequel to my discussion made in preceding paragraph Criminal Revision No. 66 of 2009 filed by the complainant to enhance the sentence passed against the appellant by the learned trial court from life to death is hereby dismissed. SL/Q-7/L Appeal allowed.