2016 PLP 141 (YLRN)

AALIA NEELUM, J.

This single judgment will dispose of Crl. Appeal No.1481 of 2010 titled "Liaqat Ali v. The State etc" as well as Crl. Revision No. 784 of 2010 titled "Muhammad Siddique v. Liaqat Ali".

2. Appellant, Liaqat Ali son of Muhammad Amin, Caste Arain, resident of Mastoo-wal Jhuggian, Police Station Chunian, Tehsil Chunian, District, Kasur was involved in case FIR No.354 dated 23.10.2005, offence under sections 302/34, P.P.C., registered at Police Station, Ellah Abad, District, Kasur and was tried by Mr. Safdar Saleem Shahid, Additional Sessions Judge, Chunian, District Kasur. The learned trial court seized with the matter in terms of judgment dated 29.5.2010 while convicting the appellant under section 302(b), P.P.C. and sentenced him to life imprisonment with the direction to pay Rs.2,00,000/-as compensation to the legal heirs of the deceased and in case of default thereof, further undergo six months' S.I. The benefit of section 382-B, Cr.P.C. was also extended in favour of the appellant.

3. Feeling aggrieved by the judgment of the learned trial court, Liaqat Ali, appellant has assailed his conviction through filing Crl. Appeal No.1481 of 2010.

4. Prosecution story as alleged in the FIR (Exh.P.D/1) lodged on the complaint (Exh.P.D) of Muhammad Siddique (PW-2)/complainant is that on 23.10.2005 at about 2.45 a.m. complainant along with his co- accused persons equipped with lethal weapons committed murder of Pervaiz son of the complainant, namely, Muhammad Siddique and escaped from the place of occurrence, hence FIR in hand.

5. The motive behind the alleged occurrence is that Arshad etc. with the help of Pervaiz (since dead) had murdered father and brother of Liaqat Ali and Riaz (accused persons) and due to said grudge, the alleged occurrence took place.

6. On the basis of the complaint submitted by the complainant, formal FIR (Exh.P.D/1) was chalked out by Abdul Rehman, S.I. (PW 9) who being first Investigating Officer of FIR in question visited the place of occurrence and prepared injury statement as Ex.P.M, inquest report as Ex.P.N and site plan without scale Ex.P.O., while motorcycle of the deceased was also taken into possession through recovery memo as Exh.P.A and got recorded the statements of PWs under section 161, Cr.P.C., while dead body of the deceased was escorted to the Tehsil Headquarter Hospital Chunian for autopsy and thereafter Muhammad Siddique, Constable handed over him last worn clothes of the deceased, Pervaiz i.e. Shirt P-1, Shalwar P-2, Bunian P-3 along with one phial. Then recovery memo (Ex.P.C) was prepared about last worn clothes of deceased. On 26.12.2005, Draftsman handed over him the scaled site plan (Ex.P.G) (in triplicate). Thereafter the investigation was entrusted to Aas Muhammad, S.I., who during interrogation, got recovered a pistol 30-bore from the back of showroom of Ellah Abad area. Thereafter (Ex.P.J) recovery memo was prepared qua recovered pistol P-4 whereas site plan of the place of recovery was also prepared as (Ex.P.K).

7. Having found the accused person guilty, the Investigating Officer prepared report under section 173, Cr.P.C. and sent the same to the court of competent jurisdiction. On 29.12.2008, the learned trial court formally charge sheeted the appellant to which he pleaded not guilty and claimed trial. The prosecution in support of its version produced as many as ten (10) prosecution witnesses.

8. Ocular account of first part of occurrence in this case has come out from the statements of Muhammad Yousaf (PW-1), Muhammad Siddique (PW-2)/complainant whereas, Dr. Muhammad Arif Mehmood, Medical Officer, Tehsil Headquarter Hospital, Chunian (PW-7) had conducted postmortem examination of the dead body of deceased Pervaiz on 24.10.2005 and found the following injuries on his person:- (i) Lacerated wound 10 in numbers, on the right side of the chest, lateral part size 3/4 C.M. It was chest cavity deep and margins were inverted. (ii) Lacerated wound size 2 C.M diameter. Margins were inverted. It was chest cavity deep and present at the right side of the chest upper part, at the route of neck. (iii) Lacerated wound size 3/4 C.M, diameter. Margins were inverted, 19 in numbers, it was abdominal cavity deep, on the front of the lower part of the chest and upper part of abdomen. (iv) Lacerated wound, size 3/4 C.M. diameter. Margins were inverted and it was bone deep, on the top of the right shoulder, 7 in numbers. It was chest cavity deep. On analysis, chest cavity and abdominal cavity was full of blood. Right lung, left lung, large Gut and small Guts were perforated. Heart was perforated. 8 pellets were recovered from the chest and abdominal cavity. Stomach, contains semi digested food. All other organs were healthy and no other abnormality was deducted. After conducting the postmortem examination, the doctor rendered the following opinion:- "The deceased was died of shock and hamorrhage, due to the injuries. Injuries were ante-mortem caused with fire arm weapon and were sufficient to cause death in the ordinary course". "Probable time between injuries and death was immediate and between death and postmortem was 12 to 20 hours". Thereafter the doctor prepared the postmortem report (Ex.P.H) as well as sketch of injuries as (Exh.P.H/1) and (Exh.P.H/2) and handed over to Muhammad Yaqub, constable. The statements of remaining prosecution witnesses are formal in nature.

9. On 09.05.2009, the learned Deputy District Public Prosecutor gave up Muhammad Sharif being won over whereas Zulfiqar Ali, S.I. was also given up on 15.07.2009 being un-necessary and closed the evidence of prosecution by tendering the reports of Chemical Examiner as well as Serologist as (Exh.P.R) and (Exh.P.S).

10. The appellant was also examined in terms of section 342, Cr.P.C., wherein he opted not to appear as his own witness in disproof of the allegations levelled against him in the prosecution version. In response to a particular question why this case against him and why the PWs deposed against him, Liaqat Ali, made the following deposition:- "This case has been registered against me for the reason that I could not pursue my aforesaid case FIR No.526/05 and due to this reason the PWs have deposed against me falsely."

11. In defence evidence, Muhammad Ismail and Muhammad Anwar appeared as DW-1 and DW-2 respectively.

12. The learned trial court after evaluating the evidence available on record in the light of arguments advanced from both sides, found the prosecution version proved beyond shadow of reasonable doubt resulting into conviction of the appellant in the afore stated terms.

13. Learned counsel for the appellant has contended that medical evidence is not in line with the ocular account; further added that it is alleged in the FIR as well as in statements of prosecution witnesses that at the time of alleged occurrence, appellant was armed with a pump action gun whereas during investigation, a pistol 30-Bore was recovered from his possession, which is paradoxical to the prosecution evidence. Further stated that there is misreading of evidence and documents exhibited during the evidence. In the end, learned counsel for the appellant has prayed for indulgence of the Court in the circumstances.

14. On the other hand, the learned Additional Prosecutor General assisted by the learned counsel for the complainant has vehemently opposed the contentions raised by the learned counsel for the appellant with the submissions that the appellant is duly named in the crime report with specific role of making fire shot upon Pervaiz, deceased. Learned Law Officer has next contended that a pistol 30- bore was recovered from him and that during the course of investigation, the appellant was found guilty.

15. Arguments advanced from both sides have been heard. I have also gone through the record available on file with the able assistance of the learned counsel for the parties.

16. As per prosecution version contained in the crime report (Exh.P.D/1) the alleged occurrence had taken place on 23.10.2005 at 2.45 p.m. while the same was reported to the police at 3.30 p.m. i.e. after 45 minutes of the alleged occurrence, nevertheless inter-se distance between the place of occurrence and the police station was only one Mile. According to police "Karvai" endorsed at the end of the FIR, the FIR was lodged on the written complaint (Exh.P.D) of the complainant-Muhammad Siddique (PW-2). The prosecution in order to prove its case adduced four types of evidence i.e. (i) ocular account, (ii) medical evidence (iii) recovery of pistol and (iv) motive.

17. As per prosecution version put forth in the FIR, on the fateful day, complainant's son namely Pervaiz (deceased) and Muhammad Yousaf (PW-1) came to Ellah Abad from Beharipur for purchasing grocery on the motorcycle bearing registration No.LXD-4832. They were standing in front of Habib Bank Limited, Ellah Abad Branch, Kasur Road, when at 2.40 p.m. accused persons, namely, Muhammad Abbas (since acquitted), his gunman and Liaqat-appellant along with Riaz (since dead) duly armed with firearms arrived at the place of incident in a car, light blue colour, bearing- registration No.4975 and Muhammad Abbas (since acquitted) raised lalkara to Liaqat, appellant and Riaz (since dead) that Pervaiz-deceased should not go alive whereupon appellant had made two fire shots with his pump action at Pervaiz, deceased which landed on his chest under the neck and on the right side of shoulder from the front and Riaz (since dead) made a fire shot with his .12-bore gun which hit on the right flank of Pervaiz, deceased. Admittedly, it has come in the evidence of Muhammad Yousaf (PW-1) that Pervaiz-deceased was his cousin and son of his uncle (chacha). It is an admitted fact that if contents of FIR and statements of PW-1, Muhammad Yousaf as well as PW-2 Muhammad Siddique, complainant are put in juxtaposition, then it is clear that complainant (PW-2) is not an eye/witness of the occurrence and he reached at place of occurrence after the occurrence. Admittedly, there are sufficient contradictions, improvements, discrepancies on the major points and omissions on the material points regarding mode and manner of the occurrence at the relevant time. Muhammad Yousaf (PW-1) during the course of cross-examination deposed as under:- "I did not record in my statement before the police under section 161, Cr.P.C. that I along with Pervaiz came from Beharipur to Ellahabad to purchase grocery. Confronted with Exh.D.A, where it is so mentioned." Whereas Muhammad Siddique deposed that his son Pervaiz was coming on motorcycle along with Muhammad Yousaf. He did not state that they were going to purchase grocery. Muhammad Siddique (PW-2) during the course of cross-examination while replying to a specific question deposed as under:- "I did not record in my statement before this court previously that I along with my son Pervaiz, Yousaf and Sharif were going together on metalled road of Ellahabad. Confronted with his previous statement recorded on 29.03.2007 Exh.D.B., where it is so recorded."

18. Therefore, the manner of occurrence as contained in the deposition of PW-1 and PW-2 and conduct of the prosecution witnesses creates serious doubts in the veracity of their statements. Muhammad Yousaf (PW-1) in examination-in-chief deposed that accused Ali Abbas along with other were sitting, one was his gunman and other was his driver who was driving the car. They stopped them at Habib Bank, Kasur Road, four other persons armed with weapons were already present, one was Liaqat-appellant and other was Riaz (since dead) and two were unknown whereas during cross-examination, he deposed that it is incorrect that "I recorded in my statement before the police that Liaqat and Riaz were also present in the said car with Haji Abbas". Same was confronted with Exh.D.A wherein it is so mentioned. PW-2 also made dishonest improvement and deposed that Haji Abbas moved the car ahead 7/8 feet, same was also confronted with Exh.D.A wherein it is not so mentioned, also deposed that after the occurrence, the accused went on the car towards Hujra Depalpur Road. Muhammad Yousaf (PW-1) in his statement had not deposed that Muhammad Siddique (PW-2) also reached at the place of occurrence rather he deposed that police reached at the place of occurrence after 15 minutes of the occurrence, whereas Muhammad Siddique, complainant (PW-2) deposed that on hearing the noise of firing, he reached at Habib Bank where he saw Liaqat-appellant and his brother Riaz with another accused person who were armed with pump action whereas he did not see his son but he saw that accused were dancing and they were going towards western side. Thereafter, PW-2 saw his son Pervaiz, deceased lying on the ground in an injured condition. Thereafter PW-2 went to the police station and filed an application (Exh.P.B) for registration of case which bears his thumb impression. FW-2 had not stated in his examination-in-chief that either he saw Muhammad Yousaf and Muhammad Sharif at the place of occurrence or not, rather he stated that his son Pervaiz was coming on motorcycle with Muhammad Yousaf. PW-1 stated that the police reached at the place of occurrence after 15 minutes. It is also case of the prosecution that the complainant (PW-2) first reached at the place of occurrence and thereafter he went to the police station and submitted an application (Exh.P.B) for registration of case duly thumb marked. It is in the deposition of Muhammad Yousaf (PW-1) that Muhammad Siddique, complainant (PW-2) recorded his statement before the police in the police station in his presence and the statement of complainant was recorded by the police after one or one and half hours of the occurrence. Muhammad Yousaf has not supported the complainant on this point. Moreover, during the course of cross-examination Muhammad Siddique (PW-2) while replying to a specific question deposed as under:- "The information about the occurrence was given to police by Yousaf Fouji, PW. I do not know how Yousaf PW given the said information to the police." Whereas PW-1 deposed that accused were in cream colour car whereas in FIR (Exh.P.B/1) it is stated that car was of light blue colour. If both were present at the police station, then Muhammad Siddique had to depose that Muhammad Yousaf (PW-1) was with him and Muhammad Yousaf (PW-1) had to depose that Muhammad Siddique moved a written application for registration of case and same was written by the Station House Officer. As Muhammad Siddique (PW-2) during cross-examination deposed that "the said application which I filed for registration of the case was written by the SHO". Muhammad Siddique (PW-2) admitted that he did not record in his statement before the court previously about the fact of coming of accused Liaqat etc to his house about enquiring of his son Pervaiz. In the site plan (Exh.P.E) neither presence of car is shown nor that at which side accused were decamped from the place of occurrence. Names of the prosecution witnesses were also not mentioned in the site plan, which also creates doubt about the occurrence. This fact itself casts serious doubts about the presence of the prosecution witnesses at the place of occurrence at the relevant time and to prove the ocular account, the prosecution withheld the statement of Muhammad Sharif and he was given up being won over by the accused on 09.5.2009. Hence, in this backdrop the prosecution case is squarely hit by Article 129(g) of Qanun-e-Shahadat Order, 1984. If otherwise the prosecution was of the view that Muhammad Sharif was won over by the accused, the prosecution was at liberty to declare him hostile and to cross-examine him in order to advance its case. All these facts and circumstances when taken into consideration conjointly, it does not appeal to person of an ordinary prudence that the prosecution witnesses were present at the spot at the relevant time.

19. The postmortem in this case was also conducted with the delay of twenty hours after the death of Pervaiz, deceased. The occurrence in this case took place on 23.10.2005 at about 2.45 p.m. whereas postmortem was conducted on 24.10.2005 at about 9.30 a.m. The dead body of the deceased was handed over to Muhammad Yaqub, Head Constable (PW-4) at about 4/5.00 p.m., who escorted the dead body of deceased Pervaiz to Civil Hospital, Chunian for autopsy on 23.10.2005 whereas Dr. Muhammad Arif Mahmood (PW-7) deposed that the dead body was brought on 24.10.2005, one hour before conducting the postmortem examination, which fact vitiates the prosecution case set forth by the ocular account.

20. The recovery of pistol .30-bore effected from the appellant is no consequence to the prosecution case as it was alleged that at the time of occurrence, the appellant was armed with pump-action whereas pistol .30-bore was recovered. Moreover, no empty was recovered from the spot, hence the same in no way, advances the prosecution case.

21. This Court is conscious of the fact that nevertheless the motive was set forth by the prosecution while lodging the crime report (Exh.P.D/1), however, no evidence whatsoever in this regard was advanced during the course of trial. Muhammad Siddique (PW-2) in his statement deposed that he had no enmity with the accused, therefore, he can not tell what was the reason and why they had committed this occurrence.

22. As far as absconsion of the appellant as contended by learned Additional Prosecutor General is concerned, it is established principle of law that mere absconsion is not a poof of guilt of an accused. In the case of "Rasool Muhammad v. Asal Muhammad and others" (1995 SCMR 1373) wherein it was held as under:- "Disappearance of a person named as a murderer/culprit after occurrence, is but natural, whether named rightly or wrongly

Abscondance per se is not a proof of guilt of an accused person

It may, however, create suspicions against him but suspicions after all are suspicions."

23. From the facts and circumstances narrated above, I am persuaded to hold that there are glaring contradictions in the prosecution case especially the presence of the prosecution witnesses at the place of occurrence at the relevant time, glaring contradictions and improvements were made by the prosecution witnesses, which lead this Court to the conclusion that the occurrence was unseen and PW-1 was not present at the time of occurrence. Moreover, unproved motive, uncorroborated recovery of pistol and admission of Muhammad Siddique (PW-2) that during investigation in his presence 53 peoples who belong to the place of occurrence appeared before Aas Muhammad, S.I. (PW-8) and filed their affidavits to the effect that said occurrence was committed by Riaz (since dead) along with another and not by Liaqat, appellant whereas PW-8 deposed that Liaqat, appellant was present at the place of occurrence, however, he was getting his jeep baring etc repaired from that place and his brother committed the occurrence. From the above, it can be ascertained that the prosecution has badly failed to bring home guilt of the appellant to the hilt through straightforward, confidence inspiring and corroborative evidence. The learned trial court was not justified in convicting the appellant while basing upon untrustworthy evidence and conviction passed by the learned trial court in the circumstances is against all canons of law recognized for the dispensation of criminal justice. As per dictates of law benefit of every doubt is always to be extended in favour of the accused. Reliance is placed on a case reported as "Muhammad Akram v. The State" (2009 SCMR 230) wherein it has been held that:- "Benefit of doubt

Principles

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."

24. Consequently, the salutary principle of benefit of doubt is extended in favour of the appellant as a consequence whereof Criminal Appeal No.1481/2010 is accepted in toto whereas conviction and sentence recorded in the judgment of the learned trial court passed on 29.05.2010 is set aside at naught. So, appellant, namely, Liaqat Ali is acquitted of the charge in case FIR No.354 fated 23.10.2005, offence under sections 302, 34 P.P.C. registered at Police Station, Ellah Abad, District, Kasur and he be released forthwith, if not required in any other case.

25. As far as Crl. Revision No.784 of 2010 filed by the complainant, namely, Muhammad Siddique for enhancement of sentence of the appellant from imprisonment for life to death is concerned, for the reasons afore stated, the same is devoid of any legal force, which is accordingly dismissed. HBT/L-3/L Appeal accepted.