2011 P Cr (PLP)

CH. IFTIKHAR HUSSAIN, J.

Appellant Ghulam Mustafa by way of the instant appeal has challenged his conviction and sentence recorded vide judgment dated 31-1-2006 by Mr. Muhammad Boota, learned Additional Sessions Judge, Sialkot in case F.I.R. No.145 registered under section 302/34, P.P.C. with Police Station Civil Lines, District Sialkot on 18-4-2004. He vide the same has been convicted under section 302(b), P.P.C. for committing the Qatl-e-amd of deceased Liaqat Ali and sentenced to suffer rigorous imprisonment for life and pay Rs.2,00,000 as compensation to the legal heirs of the deceased as required under section 544-A, Cr.P.C. and in default thereof to further suffer six months' simple imprisonment. He, however, has been extended the benefit of section 382(b), Cr.P.C. His co-accused Tariq Mehmood has been acquitted of such charge giving him the benefit of doubt vide the same judgment.

2. Briefly the facts relevant for the disposal of the instant appeal are that the said case has been registered on the written application of one Noor Hussain (P.W.11). He has mentioned therein that on 18-4-2004 at about 2-00 p.m. he, his brother Liaqat, son and worker Naeem Butt were present in their shop at Hunter Pura and working there. At that time four boys namely Muhammad Asif, Tariq Mehmood, Iftikhar Ahmad and Ghulam Mustafa @ Tahir came to their adjoining grocery shop on a motorcycle and car and they started drinking bottles. One of them asked his brother Liaqat to bring the bottles from the car but he refused them. These boys, who were already doing hooliganism there, caught him (Liaqat) from collar and started beating hint. They rushed to that place from their shop. Ghulam Mustafa with .30-bore pistol tired at him (Liaqat), which hit on his right flank. He was wounded and fell down. They in state of worry carried him to hospital. The accused fled away from the scene while abusing. The incident was witnessed by Naeem Butt and his son Muhammad Abid besides him.

3. He (appellant) and his co-accused Tariq Mehmood were arrested in this case, while Iftikhar and Muhammad Asif had absconded and were declared proclaimed offenders.

4. The learned trial Court formally charged them under section 302/34, P.P.C. for in furtherance of their common intention along with their absconding co-accused, committing the Qatl-e-amd of deceased Liaqat Ali on the above-said date, time and place. They both pleaded not guilty. The prosecution at their trial examined it's fourteen witnesses. They were Shabbir Ahmad (P.W.1), Dr. Hafiz Muhammad Khalid (P.W.2), Dr. Muhammad Ashfaq (P.W.3), Muhammad Afzal-constable (P.W.4), Muhammad Akram, SI (P.W.5), Bashir Ahmad-Constable (P.W.6), Muhammad Arshad-HC (P.W.7), Abdul Hafeez (P.W.8), Muhammad Sadiq (PW9), Muhammad Munir (P.W.10), complainant Noor Hussain (P.W.11), Muhammad Abid (P.W.12), Masood Ahmad Bhatti (P.W.13) and Mehmood Ahmad, SI (P.W.14).

5. The report of Chemical Examiner Exh. PK, Serologist Exh.PL and that of Forensic Science Laboratory Exh. PM were tendered in the prosecution evidence. He and his co-accused (acquitted) were examined under section 342, Cr.P.C. He in the same denied the allegation appearing against him in the prosecution evidence as well as the recovery of crime weapon Pistol P-3 from him. It according to him was planted upon him. He in reply to the question that why this case is against him and why the P.Ws. have deposed against him has stated in the following words: "It is a false case, which was registered with due deliberation and consultation. Actual facts have been supported by P. Ws. Because P.Ws. are interested witness. The reason of interest is that they are closely related with each other. As a matter of fact on the day of occurrence a little quarrel had taken place between the deceased and the accused and after that the accused had gone away. After the departure of accused person, Liaqat had been killed by some unknown persons. When the complainant got knowledge of killing of Liaqat, he implicated the Ghulam Mustafa accused along with others."

6. He, thus, pleaded innocence. He, however, neither opted to lead evidence in his defence nor to depose on oath in disproof of the allegation appearing against him in the prosecution evidence as required under section 340 (2), Cr.P.C.

7. The learned trial Court after hearing the parties came to the conclusion that the prosecution did not succeed in bringing home the guilt to his co-accused Tariq Mehmood beyond any shadow of reasonable doubt. It so, has acquitted him giving him the benefit of doubt. It while has concluded that the prosecution has succeeded in bringing home the guilt of the Qatl-e-amd of deceased Liaqat Ali to him beyond any shadow of reasonable doubt and so, has convicted and sentenced him in the manner as stated above.

8. He feeling himself dissatisfied with the impugned judgment of his conviction and sentence has assailed the same by way of the instant appeal as said above.

9. His learned counsel has submitted that the ocular evidence furnished by the prosecution was not sufficient and rather deficient to establish his guilt in respect of the Qatl-e-amd of the deceased; that the eye-witnesses Noor Hussain and Muhammad Abid had not known the accused persons prior to the incident as has come in their evidence on the record and so, the mentioning of their names in the F.I.R. Exh. PD with full particulars is an astonishing fact and the same carries with it an element of doubt as regards their identity and participation in the occurrence and at the same time it shows that the registration of F.I.R. against them was result of fabrication, deliberation, consultation and preliminary inquiry and so, the witnesses mentioned in the same were noteworthy of placing reliance; that the eye-witnesses were related to the deceased being his brother and nephew respectively and so, in that way had the interest to depose favourably to the prosecution; that (P.W.11) Noor Hussain's evidence is based on mere hearsay and he very clearly has admitted in the cross-examination that on hearing the sound of fire, he came out of his shop and was told by the peoples that accused Ghulam Mustafa had fired at the deceased: that this fact in his evidence abundantly shows that he had not seen the occurrence with his own eyes and rather told by the peoples that the deceased was tired at by the appellant and so, his evidence amounted to mere hearsay and, thus, carried no evidentiary value with it and, hence, it could not be relied upon by the learned trial Court; that the learned trial Court has erred in relying upon his testimony taking it to be an eye-witness account of the incident; that thereafter, remains the sole testimony of Muhammad Abid (P.W.12) disclosing the account of occurrence; that in the scenario that the accused were not known to them previously and they had no occasion or motive to kill the deceased, it was not safe to convict them; that accused's names, seemingly figured in the F.I.R. Exh PD as a result of due deliberations, consultation, preliminary inquiry and fabrication or maneuvering and so, his testimony too is not reliable piece of evidence; that the learned trial Court has used the medical evidence and the recovery of crime weapon pistol P-3 as corroborative pieces to their testimony; that the medical evidence did not lend corroboration to their testimony and rather has contradicted the same in much way as according to the eye-witness account the deceased was fired at single pistol shot, whereas on autopsy, at least three independent injuries were found on his dead body and this is in clear contradiction to the ocular account rendering the prosecution story not above doubt; that it has come in the evidence of the recovery witnesses namely Muhammad Abid (P.W.12) and Mehmood Ahmad, SI (P. W.14) that the recovery of pistol P-3 was from an open place and accessible to general public and so, it had no value in the eyes of law; that such piece of evidence has wrongly been used by the learned trial Court as of corroboration to the ocular account; that even otherwise, this recovery was on 6-5-2004 i.e. about eighteen days of the alleged incident and so, the possibility of it's planting upon the appellant could not be ruled out; that in all such circumstances, it has become abundantly clear that the prosecution case is not free from doubt and in such circumstances, he ought to have been given the benefit of doubt and acquitted and while, has erroneously been convicted and sentenced; that in any case the motive behind the case is highly shrouded in mystery; and that infact the deceased was killed by some other persons; and the appellant instead has wrongly been involved in the instant case as a result of fabrication on the part of the prosecution.

10. As against the same; the learned D.P.-G has contended that the eye-witnesses were reliable being not inimical towards the appellant; that the recovery of pistol P-3 has sufficiently established the guilt of the appellant; that it hardly mattered, if the motive is not known; that the learned trial Court has rightly used the medical and evidence of recovery of crime weapon pistol P-3 as corroborative circumstance to the ocular account; and that the impugned judgment of his conviction and sentence has proceeded on sound reasons based on the record.

11. I have carefully considered the submission made from both the sides with the help of the available record.

12. The prosecution case mainly rests upon the ocular account, medical evidence, the recovery of crime weapon Pistol P-3, the circumstance of the investigation and the reports of the experts.

13. The ocular account of the prosecution has been rendered by Noor Hussain complainant (P.W.11) and his son Muhammad Abid (P.W.12). They have narrated the details in respect thereof.

14. Noor Hussain admittedly is the real brother of the deceased and Muhammad Abid, his nephew. This but itself is not sufficient to discard their testimony. There is but one admitted fact available from the evidence of Noor Hussain complainant. He in the cross- examination has stated that: "Then I had come out of the shop there was a great noise and some people had told inc that accused Mustafa had fired at the deceased". There is no ambiguity in his such deposition. This, if seen, as it is, would mean that he has admitted that he was told by the peoples that accused Ghulam Mustafa (appellant) had fired at the deceased. In other words, it would mean that he did not see the occurrence with his own eyes and rather was told by the peoples present there that it was the appellant, who had fired at his deceased brother Liaqat Ali. His evidence, thus, cannot be considered as an eye-witness account of the occurrence. It, rather, was mere hearsay. There, thus is needed no lengthy discussion on such aspect of the prosecution case as it being so had carried no value in the eyes of law. It, therefore, should have been kept out of reliance.

15. He as stated above is the relative of the deceased. No doubt, he had no enmity with the appellant/ accused but mere absence of enmity on his part with hint would not stamp him with truth. It is intact the intrinsic worth of evidence of a witness, which matters. The court in order to administer safe justice is to cautiously scrutinize the evidence of a witness of the type. It is not worthy of reliance merely saying that he had no animus or back ground of hostility against the accused. One fact very astonishingly appearing from his evidence is that he has admitted in the cross-examination that he has not seen any of the accused before the occurrence. He has also admitted therein that he had no knowledge of the whereabouts of any of the accused persons. It is also very astonishing that he has lodged the F.I.R. Exh. PD on the basis of statement Exh.PD/1 with complete details of their identity. The same carries their names, parentage, caste and "address. The incident had taken place at about 2-00 p.m. The report regarding the same was made at about 4/5-00 p.m. It, thus, was within two hours. He when had not seen any of them prior to the occurrence or had no knowledge of their whereabouts, then how was able to give their names and the complete particulars of identity in Exh.PD/1, which was his written application. This fact smacks of some doubt in the veracity of his such version/story regarding the incident. It at the same time also shows some chance or possibility of consultation, deliberation and preliminary inquiry into the matter about the identity of the accused persons before lodging of F.I.R. Exh.PD or making of application Exh.PD/1. This fact too renders his testimony not safe to be made basis for forming hypothesis of the appellant's guilt. So, the learned trial Court seems to have fallen in error in accepting his testimony along with that of his son in basing his conviction.

16. The above indicated position of his evidence certainly renders it not safe to be relied upon in the background of his hearsay evidence. I, therefore, find that at least the learned trial Court has wrongly relied upon his evidence taking it to be true eyewitness account of the occurrence.

17. Thereafter, remains the evidence of his son Muhammad Abid (P.W.12) alone as regards the eye-witness account. It can be said about him that he too had no enmity against him (appellant) but the position of his evidence would also be the same as has been said to be of his father and mentioned above. Because such fact alone would not stamp his evidence with truth. Even if his testimony may be considered as it is the same would require corroboration from some independent source of unimpeachable character to take it to be safe to rely upon to convict a person on such a charge.

18. At the same time, another important factor, which wonders one in the analysis of the prosecution story is that despite the fact that a worker "Kareegar" in their shop was present at the relevant time, he (Muhammad Naeem Butt) but has not been produced in the evidence. He in some way could be said to be an independent witness as he had no blood relation with the deceased. As per the showing of Noor Hussain complainant, there were other persons also present at the spot, who had told him about the act of the appellant. None of then but had been cited even to support the prosecution story. All these facts carry with it the element of doubt qua the veracity of the prosecution story to much extent.

19. As regards the question of corroboration to the testimony of Muhammad Abid (P.W.12) regarding the narration of the occurrence, the prosecution has endeavored to take support from the medical evidence. This but is the clear stance of both the stated to be the eye-witnesses of the occurrence that the appellant with pistol had fired only one shot hitting on the right flank of the deceased. It is not at all present in their evidence that any other shot was fired at him (deceased).

20. Dr. Muhammad Ashfaq had examined the deceased when he was brought to him in an injured condition. He had found following three injuries on his person:-- (1) Lacerated wound 1 x 1 cm, the outer aspect of left chest. Injury was DNP. (2) Lacerated wound 1-1/2 cm x 1-1/2 cm on the antero lateral aspect of right chest. Injury was DNP. (3) Lacerated wound 1/2 cm x 1/2 cm on the right chest just above injury No.

2. Injury was DNP.

21. Similarly Dr. Hafiz Muhammad Khalid (P.W.2), who conducted autopsy upon the body of the deceased had found the following injuries on his body:-- (1) A lacerated wound 1.5 x 1.5 cm on lateral aspect of left chest. (2) a lacerated wound 2.5 x 1 cm on the antero lateral aspect of right chest. (3) A circular wound 2 cm diameter closed to injury No.2 on right side of chest. (4) Stitched wound extending from epigastrium to hypogastrius. (5) A colostomy on left side is made.

22. Out of" these injury No. 4 is a stitched wound and No. 5 a colostomy on left side of the body. However, other three were independent injuries on the dead body. There is nothing in the evidence of these doctors that either of these injuries was of entry or exit. These seem three independent injuries i.e. injury Nos. 1 to

3. The deceased when had received only one pistol shot at his right flank, then if the same could cause three independent injuries is something doubtful. As it is neither available from the evidence furnished by these doctors nor is understandable that how the deceased had sustained the other two injuries and particularly injury No. 1 on the left side of the chest. So, the medical evidence did not lend proper or required corroboration to the ocular account of the prosecution. It, therefore, has wrongly been taken to be corroborative or supportive to the same.

23. As regards the evidence of recovery of crime weapon pistol P-3 furnished by the above-named P.Ws. i.e. Muhammad Abid (P.W.12) and Mehmood Ahmad, SI (P.W.14), it is abundantly established on the record that the place of recovery was on the road side in a partly populated area and so, accessible to all or general public. It too was about eighteen days after the alleged incident. All such facts make the recovery to be doubtful and not worthy of acceptance readily. This piece of evidence has also wrongly been taken by the learned trial Court to be a corroborative or supportive circumstance to the ocular account. These main pieces of the prosecution evidence i.e. ocular account, medical evidence and recovery of crime weapon were of no use to the prosecution in the appellant's case as well. Hence, the reports of Chemical Examiner Exh.PK, Serologist Exh.PL and that of Forensic Science Laboratory Exh.PM were not of any use to the prosecution to support it's case in any case. So, no discussion on these pieces of the prosecution evidence on the record in such circumstances of the case is required. In' the above backdrop of evidence of recovery, the reliance of the learned trial Court upon the case of Malik Muhammad Akbar v. State (1995 SCMR 693) was not apt. The facts of the instant case from that case are absolutely different and distinguishable. So, the esteemed authority has no apt application to the case of the appellant.

24. The above position shows that the shadows of doubt were heavily lurking upon the prosecution case at all steps. It is a cardinal principal of criminal administration of justice that benefit of every doubt, howsoever, slightest it may be, is to be given to an accused.

25. I, therefore, in such circumstances of the case, available from the evidence on the record, am of the considered view that the prosecution could not prove the guilt or charge against the appellant/ accused Ghulam Mustafa beyond any shadow of reasonable doubt. He so, was entitled to acquittal by giving him the benefit of doubt.

26. I, therefore, find that the impugned judgment to the extent of his conviction and sentence also is open to valid exception. The same is not sustainable, in the above facts and circumstances of the case of the appellant. I, therefore, accept this appeal, set aside the same to the extent of appellant's conviction and sentence and acquit him of the charge giving him the benefit of doubt. He is in custody. He be released forthwith, if not required in any other case. N.H.Q./G-60/L Appeal accepted.