2010 PLP 2919 (YLR)

SAYYED MAZAHAR ALI AKBAR NAQVI, J.

Khadim Hussain son of Allah Ditta, Tasawar Hussain son of Muhammad Saddique, appellants and Sajjad alias Saaja son of Barkat Ali were involved in case F.I.R. No. 716 of 2001, dated 7-10-2001, offence under sections 302, 324 and 34, P.P.C., registered at Police Station Saddar Kharian, District Gujrat with the allegation of committing murder of Muhammad Arshad, brother of the complainant and also causing firearm injuries to Pervaiz Akhtar (P.W.6). The learned Additional Sessions Judge, Kharian, District Gujrat vide his judgment dated 25-11-2004, convicted Khadim Hussain appellant under section 302(b), P.P.C. and sentenced him to death with payment of compensation of Rs.50,000 to the legal heirs of deceased under section 544-A, Cr.P.C. Tasawar Hussain appellant was sentenced to five years imprisonment under section 324, P.P.C., with a fine of Rs.10,

000. He was also sentenced to two years imprisonment under section 337-F(ii), P.P.C. and to make payment of Rs.20,000 as Daman to Parvaiz Akhtar, injured. The sentences of Tassawar Hussain appellant were ordered to run concurrently. He was also given the benefit of section 382-B, Cr.P.C. Sajjad alias Sajja co-accused of appellant was, however, acquitted of the charge by the learned trial Court while extending him benefit of doubt.

2. Being aggrieved of the judgment of the learned trial Court, Khadim Hussain appellant filed Criminal Appeal No.1944 of 2004 and Tasawar Hussain appellant filed Criminal Appeal No.5 of 2005 whereas the learned trial Court forwarded Murder Reference No.805 of 2004 as provided under section 374, Cr.P.C. for confirmation of death sentence inflicted upon Khadim Hussain appellant.

3. As all these matters are arising out of the same F.I.R., therefore, these are being disposed of through single judgment.

4. As per prosecution case, Javaid Akhtar (P.W.8), lodged complaint (Exh.PK) on 7-10-2001 wherein it is alleged that he is resident of village Jhantla. The complainant along with his brother Muhammad Arshad and Pervaiz Akhtar had an oven in village Shorian to earn their livelihood. On 7-10-2001 at about Shamwela, the complainant along with his two brothers after closing their shop were going back to their house while riding bicycles. At about 7-30 p.m., they reached near the Morr of Jhantla village and found accused Tasawar armed with pistol, Khadim Hussain armed with pistol resident of village Santhal and Sajjad Hussain alias Sajja accused armed with pistol standing in the said Chowk. All the three accused raised Lalkara that they were waiting for them and they would not leave them alive. Muhammad Arshad deceased caught Tasawar Hussain accused with Japha. Khadim Hussain fired with his pistol at Arshad, which had hit on the back of his chest and he fell down. Tasawar Hussain fired with his pistol at Pervaiz Akhtar (P.W.6), which hit on his right thigh, who also fell down. Sajjad Hussain made a fire shot on the complainant, who saved his life while lying on the ground and raised hue and cry. On hearing lalkaras raised by co-villages, the accused persons ran away. The complainant rushed and saw that Muhammad Arshad succumbed to the injuries at the spot, whereas Pervaiz Akhtar was wriggling. The motive as alleged by the complainant was regarding family dispute over the marriages.

5. On receiving the information regarding the occurrence, Mumtaz Khan S.I. (P.W.9) who was on patrol duty along with other police officials, reached at the place of occurrence at about 9-00 p.m. recorded the statement of Javaid Akhtar complainant (Exh. PK) and sent the same to Police Station through Rukhsar Ahmed 933/C for registration of formal F.I.R., Exh.PK/1. The Investigating Officer, prepared injury statement of Parvaiz Akhtar, Exh.PA and injury statement 'of deceased as Exh.PC. The Investigating Officer drafted application for post-mortem examination Exh.PD and inquest report Exh.PE. The Investigating Officer handed over the dead body of Arshad deceased to Muhammad Afzal for autopsy. After post-mortem examination over the dead body of deceased, the Investigating Officer took into possession the last worn clothes of deceased i.e. shirt (P-1), Shalwar (P-2), vide recovery memo. Exh.PG. The Investigating Officer collected blood-stained earth from the place of occurrence, which he took into possession as Exh.PH. The Investigating Officer also collected three live bullets P.3/1-3 and one handkerchief P-4 from the place of occurrence, which he took into possession vide recovery memo. as Exh.PJ. The Investigating Officer also prepared rough site plan of the place of occurrence as Exh. PL. He also recorded the statements of prosecution witness under section 161, Cr.P.C. Thereafter, on 8-10-2001 Mumtaz Ahmed Khan S.I. (P.W.9) was transferred and the investigating of this case handed over to Asif Hanif Joyia, Inspector/S.H.O., C.W. who on 20-10-2001 arrested Tasawar Hussain and Khadim Hussain, appellants. On 21-10-2001 he obtained physical remand of the appellants and after declaring all the three accused persons innocent, he got them locked in judicial lock up on 4-11-2001. However, on the asking of the complainant the Investigating Officer placed their names in column No.3 of the report prepared under section 173, Cr.P.C.

6. The challan was submitted by the Investigating Officer to the Court of Sessions enrouted through Illaqa Magistrate under section 190(2), Cr.P.C. The learned Additional Sessions Judge, Kharian framed the charge under sections 302, 324 and 34, P.P.C. The appellants did not plead guilty and claimed trial: Prosecution in order to substantiate its case, produced as many as

9. P. Ws., whereas, the learned trial Court summoned Asif Haneef Joya Inspector as C.W.-1 and Mst. Shamim Akhtar widow of Muhammad Arshad deceased as C.W.2.

7. Ocular account in this case had been furnished through complainant, Javed Akhtar (P.W.8) brother of the deceased and Parvaiz Akhtar (P.W.6) who received injuries during the occurrence. Dr. Sayyad Ali Muhammad (P.W.1) conducted the post-mortem examination on the dead body of deceased Muhammad Arshad and observed as under:- "

1. A firearm entry wound 2 cm x 1 1/2 cm on the back of middle of chest, just right to the vertebral column. The edges of the wounds were inverted.

2. A firearm exit wound 1 1/2 x 1/2 cm on the front and upper part of the right side chest. Edges of the wounds were everted." After conducting post-mortem examination over the dead body of deceased, the doctor arrived at the following conclusion: "After my careful external and internal examination of the dead body, I was of the opinion that death had occurred due to shock and haemorrhage as a result of injury No.1, which was antemortem in nature and was sufficient to cause death in ordinary course of nature. The injury was caused by firearm weapon. Injury No.2 was the exit wound of injury No.1. The injury No.1 was grievous and fatal. The probable time that elapsed between injury and death was immediate and between death and post-mortem was about three hours." Mumtaz Khan S.I. (P.W.9) and Asif Hanif Inspector/S.H.O. (C.W.1) are the Investigating Officers of the case; whereas, statements of rest of the witnesses are formal in nature.

8. On 8-7-2003, the learned D.D.A. gave up Shafqat Hussain P.W. being unnecessary and on 8-3-2004 learned D.D.A. also gave up Asif Ali Joya Inspector/S.H.O. being unnecessary. Vide separate statement record on 24-4-2004, the learned D.D.A. closed the prosecution evidence.

9. The appellants were examined under section 342, Cr.P.C., who did not opt to appear as their own witnesses in terms of section 340(2), Cr.P.C. They, however, opted to produce defence evidence. While replying to question why this case against him and why the P.Ws. deposed against him, Khadim Hussain appellant made the following deposition:- "This case has been planted against me because of enmity established due to strained relationship. Infact the occurrence was the result of dacoity committed by some unknown persons. So many occurrences of dacoity kept on happening at Jhantla. More proclaimed offenders take shelter in this locality and committed such like occurrence. I have been made scapegoat in this case. All the P.Ws. are related inter se." While replying to a similar question Tasawar Hussain appellant adopted the defence taken up by his co-appellant.

10. However in defence evidence, the appellants produced as many as 10 D.Ws. to prove their innocence. Learned trial Court after evaluating the evidence available on the record convicted the appellants in the terms stated above. Learned counsel for the appellants contends that in this case the occurrence had taken place on 7-10-2001 at 7-30 p.m. whereas; the F.I.R. was lodged at 9-30 p.m. No reason for such a delay has come on record. Moreover, the occurrence had taken place in the odd hours of October, however, no source of light has been given by the prosecution regarding the identification of the assailants. It is further contended that one of co-accused (Sajjad) was acquitted by the trial Court on the same evidence although he was also attributed first shot upon the complainant, therefore, while relying on the same set of evidence, the appellants could not have been convicted. It is further stated that the motive had not been proved by the prosecution and there is also no corroboration from independent source to the ocular account. All the witnesses are interested because the complainant is brother-in-law of the deceased whereas Pervaiz injured P.W. is real brother of the complainant, hence their statements are not trustworthy. Moreover the prosecution witnesses of ocular account have also made dishonest improvements during the course of trial as Tasawar Hussain, appellant was stated to be armed with pistol in the F.I.R., however, while appearing in Court the P.Ws. stated that he was armed with carbine. Learned counsel contended that while relying on such evidence, capital punishment is not called for. It is further argued that it is an unseen occurrence, however, later on the names of the appellants were introduced due to enmity as such they are liable to be acquitted of the charge. To substantiate his case, learned counsel has relied upon the dictum of law laid down by the august Supreme Court of Pakistan in the reported judgments 2010 SCMR 97, 2010 SCMR 374 and 2010 SCMR

385. It is also contended that although blood-stained earth was collected from the place of occurrence, however, there is no report of Serologist to corroborate the version of prosecution and in absence of report, securing of blood-stained from the place of occurrence is of no use to the prosecution.

12. On the other hand, learned Additional Prosecutor General contends that the medical evidence is fully corroborated by ocular account. Further contends that the recovery of gun .12-bore effected from the appellant strengthens the prosecution case and there was no reason for false implication of the appellants as substitution -is very rare phenomena in our society and no one involves innocent persons in the offence committed with their dear ones instead of real culprits. Learned Law Officer contends that though blood-stained earth recovered from the place of occurrence but the same was not sent to the Serologist, however, this can be termed as slackness on the part of the Investigating Officer and it cannot hamper the prosecution case as a whole. It is also contended that the appellants are named in the F.I.R. who have been found fully involved in the case and there is no ground entitling Khadim Hussain appellant for mitigation in the sentence.

13. We have heard the arguments advanced from both sides and perused the record with able assistance of learned counsel for the appellants as well as learned Additional Prosecutor General Punjab.

14. Admittedly the occurrence had taken place in the odd hours of late evening at 7-30 p.m. in the month of October while the 'matter was reported to the police at 9-30 p.m. The complainant Javed Akhtar while making statement before the Investigating Officer had not shown any source of light, which had contributed to spot the assailants qua their identification as well as the role ascribed to them. All the three accused nominated in the F.I.R. are stated to be armed with pistols and Khadim Hussain appellant has been ascribed the pivotal role of causing injury with pistol in the back of chest of Muhammad Arshad deceased. Similarly, Tasawar Hussain, co-appellant of Khadim Hussain was also stated to be armed with pistol who had allegedly made fire shot, which landed on the right leg of Pervaiz Akhter, injured (P.W.6). Sajjad Hussain alias Sajja, co-accused (since acquitted) was also given the role of firing at complainant with his pistol who ducked the same while lying on the ground. All the accused persons according to the averments of the F.I.R., decamped from the place of occurrence on hearing the Lalkara raised by the co-villagers. Motive in this case as pointed out by the prosecution is the family dispute without any detail. During the course of trial both the prosecution witnesses of the ocular account i.e. Pervaiz Akhtar (P.W.6) and Javed Akhtar (P.W.8) had categorically improved their statements and had tried to show the source of light at the place of occurrence. Both of them remained consistent on this aspect of the prosecution case that at the time of occurrence, they were carrying torches with them and the appellants were identified in the light of the same, those were already lit while they were on their way towards the village. During the course of investigation no such torch was taken into possession by the Investigating Officer. Even both the Investigating Officers viz. Mumtaz Ahmed Khan S.I. (P.W.9) and Asif Hanif Inspector (C.W.1) had not even remotely discussed the availability of torches in the hands of the prosecution witnesses at the time of occurrence. It is pertinent to mention here that the place of occurrence in this case as per prosecution case is within the local limits of Morr Jandiala but the site plan duly exhibited with the record speaks a quite different story. According to the site plan (Exh. PL) prepared by Mumtaz Ahmed Khan (P.W.9) Investigating Officer, the red notes given under the heads of 1 to 8 of site plan, prepared on 7-10-2001, portrays a different picture of the occurrence. According to rough site plan, the occurrence had taken place within the Millet Fields owned by some Hadi Shah son of Ghous Shah. This place according to the site plan is at least 27 karams away from the place where according to the F.I.R., the occurrence had taken place. Be that as it may, the most crucial point of this case is that prosecution though had taken the blood-stained earth from the place of occurrence but the same was not sent to the office of Serologist, as no such report is available on the record, therefore, the prosecution has failed to establish venue of occurrence through adducing concrete evidence. Similarly, neither any crime-empty was recovered from the place of occurrence nor any weapon alleged to have been used in the occurrence was effected by any of the appellants during the course of investigation.

15. Khadim Hussain appellant during the course of investigation had taken a specific plea of ali bi and in this regard number of persons along with their affidavits joined the investigation to plead his innocence. Asif Hanif Inspector (C.W.1) during the course of investigation extended premium of innocence to all the three accused nominated in the F.I.R. including the appellants before this Court. During the trial proceedings Muhammad Ameen (D. W.3), Nasir son of Khalid (D.W.4) Nasir Nadeem son of Mian Khan (D. W.5) and Raja Muhammad Safdar (D.W.6) had entered appearance in the Court to substantiate the plea of ali bi taken by Khadim Hussain appellant. The statements of the above four defence witnesses are consistent on the point that at the relevant time, Khadim Hussain appellant was busy in his labour in connection with taking away bricks from the brick kiln of Raja Abid and dropping at the house of Raja Safdar resident of Lathorri. The defence witnesses remained consistent on this point although they were cross-examined at length by the prosecution and the prosecution failed to bring anything incriminating to discard the statements of these defence witnesses. Even Raja Muhammad Safdar (D.W.6) himself appeared in the witness box to verify that one of the labourers engaged for dropping bricks at his house was identified as Khadim Hussain. The State had not .even suggested anyone of them that they were making false statements just to save the skin of Khadim Hussain appellant rather a casual cross-examination was done by learned counsel appearing for the State. The motive in this case as ascribed by the prosecution was not substantiated during the course of investigation as well as during the course of trial. Even otherwise, the bare reading of the motive clearly shows that it is just placed on the record as a showpiece without any authentication or evidence to supplement the same. Statement of injured P.W. does not inspire confidence because he had also made improvement in his earlier statement. On the other hand the appellants remained consistent during the investigation to the stance of their innocence and they affirmed the same during the course of trial while adducing defence evidence. The argument of learned counsel that whenever such situation arises where the source of light is not brought forth in clear terms and the same is not taken into possession during the course of investigation, the august Supreme Court in a recent judgment reported as Muhammad Saleem v. The State (2010 SCMR 374) has brushed aside the prosecution evidence and the same was considered sufficient to discard the same and the acquittal was recorded on this score alone. As far as identity of the appellants in this case is concerned, we are of the considered view that there was lack of sufficient light enabling the witnesses to identify the assailments in true perspective. This very judgment of the august Supreme Court of Pakistan is further relied upon the ratio decidendi laid down in the case of Haroon v. The State (1995 SCMR 1627) and Muhammad Rafique v. The State (1997 SCMR 457). The other argument of learned counsel that initially the prosecution witnesses remained silent qua the source of light but during the course of trial, they had made improvements in their statements with an intent to benefit all the circumstance has also reasonable weight. In the dictum of law laid down by the august Supreme Court of Pakistan in the case of Muhammad Rafique and others v. The State and others (2010 SCMR 385), it has been held that the statement of any witness improved at trial is not worth relying rather such improvement creates serious doubts about F its veracity and credibility. Similar view was held in another case reported as Saeed Ahmed Shah v. The State (1993 SCMR 550). In the circumstances when the statements of prosecution witnesses are improved at a later stage and there is no independent corroboration to fortify the prosecution case, the prosecution evidence is to be discarded without any hesitation. Admittedly, in the instant case the mode of occurrence had not been established by any concrete evidence coming from independent source and keeping in view dictum of law laid down in the case of Imran Hussain v. Amar Arshad and 2 others (1997 SCMR 438), in such a situation it was held by the august Supreme Court of Pakistan that whenever the venue of the occurrence was shifted and there was no report of the Serologist to supplement the same, the benefit of such circumstance has to be resolved in favour of the appellants.

16. For the foregoing reasons and keeping in view the facts and circumstances of the case, this Court is of the view that the prosecution has miserably failed to substantiate allegations against the appellants and the benefit of doubt is to be resolved in favour of the appellants. Therefore, Criminal Appeal No.1944 of 2005 filed by Khadim Hussain and Criminal Appeal No.5 of 2005 filed by Tasawar Hussain appellant are accepted in toto. Sentence awarded to the appellants by the learned Trial Court in terms of judgment dated 25-11-2004 is hereby set aside. Resultantly, Khadim Hussain appellant is ordered to be released forthwith, if not required in any other case. So far as Tasawar Hussain appellant is concerned, he is already on bail as vide order, dated 2-2-2005, his sentence stands suspended, his bail bonds are discharged. Murder Reference No.805 of 2004 forwarded by the learned trial Court for confirmation of death sentence inflicted upon Khadim Hussain appellant is devoid of force and the same is answered in NEGATIVE. Death sentence is NOT CONFIRMED. N.H.Q./K-35/L Appeals accepted.