2015 P Cr (PLP)

MAZHAR IQBAL SIDHU, J.

Muhammad Afzal appellant by way of filing instant appeal under section 410, Cr.P.C. impugns the legality of judgment handed down by the learned Additional Sessions Judge, Sheikhupura on 29-9-2008, whereby he along with his co-accused Muhammad Nawaz, Safdar Ali, Ashfaq Ali and Muhammad Boota was tried in a case registered vide F.I.R. No.128 dated 28-4-2003 under sections 302/148/149, P.P.C. at Police Station, Sadar Farooqabad, District Sheikhupura, convicted and sentenced infra:-- Under section 302(b) of Pakistan Penal Code. Death sentence as Ta'zir and to pay compensation to the tune of Rs.1,00,000 to the legal heirs of the Habib deceased as required under section 544-A Cr.P.C. and in default whereof to further undergo simple imprisonment for six months.

2. The law was set in motion when complainant Sarfraz Hussain (P.W.2) submitted complaint Exh.PA on 28-4-2003 at about 5-10 p.m. before Muhammad Zahoor, Inspector/SHO (P.W.12) at the place of occurrence, on the basis of which formal F.I.R. Exh.A/1 was lodged.

3. Woeful facts abbreviatio disclosed by the complainant in complaint Exh-PA are that he and Habib had got 12 acres agricultural land from Sardar Ajmal Dogar on lease in village Channianwali and cultivated the same. On 28-4-2003 at about 12:30 (noon) he along with Habib (deceased)/co-sharer, Muhammad Rafique, Sardar Muhammad was collecting the bundles of wheat crop, Muhammad Afzal armed with rifle .44 bore, Safdar Ali armed with rifle .223 bore, Muhammad Nawaz armed with Kalashnikov, Ashfaq armed with pump action, Boota armed with rifle .7 mm, Akbar armed with rifle .8 mm, Shahid alias Billa armed with rifle .7 mm along with 3 un-identified persons, who were also armed with fire arm weapons, came over there. Muhammad Afzal raised lalkara that Sarfraz etc be not spared for getting cancelled the land from their names. They started to run to save their lives. Muhammad Nawaz made burst with his Kalashnikov at the complainant but he saved his life by lying in the water course. Muhammad Afzal made fire shot with his rifle .44 bore at Habib which hit at his back and he sustained serious injuries, who succumbed at the spot. The other accused made indiscriminate firing with their respective weapons but they succeeded in taking flight. The occurrence was witnessed by Muhammad Rafique and Sardar Muhammad P.W. The motive behind the occurrence was that Muhammad Afzal purchased Agricultural Land under Reforms which was cancelled by the Deputy Commissioner, Sheikhupura. It was cancelled from the name of Muhammad Afzal on the complaint of complainant. Muhammad Afzal repeatedly extended threats of murder, prior to the occurrence and due to this grudge, the appellant had committed the murder of Habib deceased.

4. The investigation in this case was conducted by Muhammad Zaheer, Inspector. He appeared as P.W.12 and deposed that on 28-4-2003, after receiving the information, he reached the spot, complainant Sarfraz Hussain produced before him an application Exh.PA, sent the same to police station through Mubarik Ali for registration of F.I.R. and after recording the formal F.I.R., come back at the spot/place of occurrence, prepared injury statement Exh.PG, drafted application for postmortem examination Exh.PH, prepared inquest report Exh.PI, drafted site plan of the place of occurrence Exh.PJ, secured blood imbrued earth lying underneath dead body of deceased, made it into sealed parcel, took the same into possession vide recovery memo. Exh.PC attested by P.Ws., secured empties .7mm 38/P-5/1-38, 20 crime empties of .44 bore rifle P-6 (1-20) and two crime empties of .30 bore pistol P-7 (1-2), one crime empty of .12 bore gun P-8, took the same into possession, made it into sealed parcel vide recovery memo Exh.PD, attested by the P.Ws., dispatched the dead body of deceased through Muhammad Yasin and Muhammad Anwar constables, recorded the statements of P.Ws. under section 161, Cr.P.C. On 29-4-2003 Muhammad Anwar constable produced before him last worn clothes of deceased blood imbrued comprising Qameez P-1, Shalwar P-2, vest P-3, which he secured vide recovery memo. Exh.PE, he also handed over to him postmortem report, police papers, recorded the statements of the P.Ws., he also searched the accused persons and conducted the raid at their relevant address, thereafter he was transferred.

5. The investigation in this case was also conducted by Muhammad Sharif, Inspector, who conducted proceedings against the accused persons under sections 87 and 88 of the Cr.P.C. and on 18-9-2003 submitted report in terms of section 173, Cr.P.C. against the accused persons on account of their non-availability.

6. Altaf Hussain, SI while appearing as P.W.7 deposed that on 5-1-2004 he arrested Ashfaq accused and obtained his physical remand from the concerned judicial Magistrate. During physical remand accused made a disclosure and led to the police party to village Sarkari and got recovered pump action .12 bore gun P-4 from a deserved Sheller situated at one kilometer of Sarkari village. The recovered guns were took into possession vide recovery memo. Exh-PB attested by P.Ws., prepared its site plan Exh-PB/1, prepared site plan of place of recovery, recorded first plea of Ashfaq accused on 5-1-2004, conducted raid on the house of accused persons but no one could be arrested. On 22-2-2004 he was transferred.

7. Matloob Hussain, SI while appearing as P.W.9 deposed on 7-6-2004. He arrested accused Afzal, Boota, Safdar, and Nawaz who were declared as proclaimed offenders, recorded their version and obtained their physical remand but no recovery was effected from them. On 19-6-2004 he was transferred.

8. Finally the investigation in this case was conducted by P.W.10 Muhammad Akram, SI. He appeared as P.W.10 and deposed that Muhammad Afzal, Muhammad Nawaz, Safdar and Boota accused were already in police custody. On 21-6-2004 he obtained their physical remand for one day. On 22-6-2004 he sent all the above accused to judicial lock up through Illaqa Magistrate.

9. Learned trial Court after observing all the pre-trial codal formalities, indicted the appellant and his co-accused to which they pleaded non-culpabilis and claimed trial. Thereafter the prosecution was asked to lead its evidence in order to prove its case.

10. The prosecution to prove its case produced 14 prosecution witnesses and one Court witness in all.

11. The medical evidence was adduced through the statement of Dr. Mubashir Ahmad, AMS (P.W.13) who on 29-4-2003 conducted postmortem examination on Habib's dead body and observed infra:-- INJURIES (1) A firearm wound of entry 0.8cm x 0.8cm with burned margins on the back chest of mid line mid part. (2) Exit wound 1.5cm x 2cm on the front of left chest just above nipple. OPINION In his opinion death occurred due to severe haemorrhage, shock, leading to cardiorespiratory arrest. Both the injuries individually as well as collectively were sufficient to cause death in any ordinary course of nature. The time between injury and death was immediate and time between death and postmortem was 24 hours. Exh-PK was the postmortem report whereas Exh-PK/1 was the pictorial diagram.

12. Learned DDA renounced Abdul Rauf, SI, Mehr Din, Nisar, Jaafar Hussain, SI, Muhammad Mansha, SI and Tassaddaq Hussain P.Ws. as being unnecessary and learned SPP by tendering in evidence the report of Chemical Examiner Exh-PL, report of Forensic Science Laboratory Exh-PM and that of Serologist Exh-PN closed the prosecution evidence.

13. Afterwards the statement of the appellant under section 342, Cr.P.C. was recorded, in which he denied and controverted all the allegations levelled against him by the prosecution and professed his innocence. He neither opted to adduce evidence in his defence nor to appear as his own witness under section 340(2), Cr.P.C.

14. Appellant in reply to the question "why this case against you and why the P.Ws. have deposed against you" answered as follows:-- "I am innocent in the instant case. Safraz P.W. and other P.Ws. of the instant case as well as the deceased and Humayun Dogar etc who is nephew of Sarfraz P.W. have long standing enmity in the area since 1990 and have so many enemies and number of criminal cases at Police Station Farooqabad have been registered against Sarfraz P.W. deceased Habib, P.W. Rafique and nephews of Sarfraz P.W. Humayoun Dogar etc. I produced copy of the F.I.R. No. 405 dated 21-7-1990, under sections 302/364/148/149, P.P.C. PS Farooqabad Exh-DC, got registered by Mehraj Din, about the murder of Muhammad Younus. Said Humayun Dogar, Saqib, Zafar are the real sons of Mst. Munawar Bibi, who is real sister of said Sarfraz P.W. Case F.I.R. No. 87 dated 8-3-1990, under sections 379/447/ 427/379/148/149, P.P.C. read with section 14/6/1979 Islamic Law, PS Farooqabad Exh-PD got lodged by one Bootay Khan son of Ranjhay Khan caste Rajput, Canianwali, Mashmula Sawankey against Humayun, Maqbool Hussain, Arif, Riaz alias Kaka sons of Suba caste Jat Sardar son of Mehar Din etc. Case F.I.R. No. 132 dated 6-5-2000 under sections 324/353/ 186/148/149, P.P.C. lodged by Muhammad Jahangir Butt, then SHO/Inspector PS Farooqabad, Exh.DE, against Zafar Humayun son of Ajmal Dogar, who are the real sons of sister of Sarfraz P.W. AT PS Sadar Farooqabad. Case F.I.R. No. 5 dated 5-1-2001 under sections 353/324/ 186/148/149, P.P.C. against Zafar, Hamayun sons of Ajmal nephews of said Sarfraz P.W. at PS Sadar Farooqabad which is Exh DG, which has been got lodged by Asad Muzaffar then Inspector/SHO PS Sadar Farooqabad. Case F.I.R. No. 115 dated 20-4-2003 under section 13/20/65, A.O. PS Sadar Farooqabad Exh-PH lodged by Iftikhar Ahmad, ASI against Humayoun son of Ajmal Dogar, who is real nephew and real son of sister of Sarfraz P.W. I have no grudge with the deceased, whereas deceased and P.Ws. and their nephews Humayun Dogar etc. are history sheeters and they are wanted to police in so many criminal cases as well as in the said cases and P.Ws. and the deceased are of men of desperate character and they have enmity with other people in the area. I and my relative have been falsely implicated in this case merely to usurp the agricultural land belonging to me, situated in village Channianwali, which was purchased by me from Khushi Muhammad, Ghulam Rasool, Bashir, Ashiq etc. The said land was allotted to them due to the land reform. I and my brothers and relatives have been falsely implicated in the instant case for the murder of Habib deceased, who has died due to the fire shot of friendly hand or by his enemies. P.Ws. have falsely deposed before this worthy Hon'ble Court and P.Ws. are interested criminals towards me, merely to usurp my land in village Channianwali, as mentioned above. Moreover, ocular account produced by the prosecution is contradictory with the medical evidence."

15. Upon conclusion of the trial, appellant was convicted and sentenced as mentioned op-cit by the learned trial Court whereas his co-accused was acquitted of the charges. Hence, the appeal.

16. Learned counsel for the appellant submits that on account of previous enmity, the appellant was involved falsely; motive set up in the F.I.R. being double edged goes in favour of the appellant and for the said reason, he has been falsely involved; natural eye-witness namely Sardar Muhammad was renounced by the prosecution as being unnecessary whereas subsequent to the murder of Habib deceased of this case, Muhammad Rafique eye-witness examined as P.W.3 was murdered by the complainant party of this case; as per site plan prepared by Patwari, presence of complainant Sarfraz has not been mentioned; had he been present there, his presence could have been marked by the Patwari at the spot and in this way, in the field statement of Muhammad Rafique alone remains but the same has not been corroborated by the medical evidence for the reasons that according to site plan deceased was fired at a distance of 80-Karams; Sarfraz and Muhammad Rafique both have said in cross-examination categorically that the deceased was at a distance of about one Vegha when he was fired at but the doctor who performed postmortem examination on the dead body of deceased has categorically observed burnt apertures of the inward wound implying that the deceased was fired at from a point blank range and recovery does not corroborate the prosecution case, therefore, it has been prayed that appeal may be accepted. Learned counsel has relied upon Syed Abdul Baqi Shah v. The State (1997 SCMR 32) and Muhammad Aslam Khan v. The State (1999 SCMR 172).

17. Adversaries have opposed the submissions. Learned DPG has argued that it being a daylight occurrence being reported promptly, the parties are known to each other and the eye-witnesses are unison on material points notwithstanding having suffered from searching cross-examination and the medical evidence corroborates the ocular account, therefore, the prosecution has been found able to prove its case against the appellant and has craved for dismissal of appeal.

18. Learned counsel for the complainant supplementing to the arguments submits that when the Court believes ocular testimony, the statement of the doctor even being an expert by virtue of Article 59 of the Qanun-e-Shahadat Order, 1984 cannot be overweighed/ precedent to the ocular account and the doctor has categorically stated that the deceased died of fire shot injuries, therefore, prosecution has proved its case against the appellant and has, thus, relied upon Wahid v. The State (PLD 2002 SC 62), Muhammad Tufail v. The State (PLD 2002 SC 786) and Abdul Subhan v. Raheem Bakhsh (PLD 1994 SC 178).

19. Heard. Record perused.

20. Indubitably the occurrence took place under the sunlight. The appellant was nominated in the F.I.R. along with weapon with specific role that he made a fire shot with his rifle .44 bore hitting on Habib when he was running on his back which went through and through. The doctor endorses that the deceased died of fire shot injuries. Presence of the eye-witnesses has been found uprooted on account of unbridgeable medical contradiction with the ocular account with regard to distance at which deceased received solitary fire shot injury. According to site plan of prosecution case, deceased received fire shot injury from a distance of 80-Karams. As per statement of eye-witnesses Sarfraz and Muhammad Rafique deceased was fired at from a distance of one Vega whereas the doctor has observed margins of inlet wound burnt, in this way, this inconsistency cannot be resolved in favour of the prosecution and this fact alone is sufficient to extend benefit to the appellant. Reliance is placed upon Muhammad Ishaque v. The State (2007 SCMR 108) wherein the Hon'ble Supreme Court of Pakistan has held infra:-- "

Ss 302 & 324

Reappraisal of evidence

Previous enmity

Conflict between ocular and medical evidence

Effect

Trial Court convicted accused/appellant under Ss. 302 & 324, P.P.C. and sentenced him to life imprisonment

High Court on appeal upheld the finding of Trial Court

Validity

Prosecution failed to explain delay in lodging F.I.R.

Complainant allegedly witnessed the murder of his real brother but in spite of that he did not go to police to promptly lodge F.I.R.

Enmity between accused and complainant including eye-witnesses having been proved the ocular testimony of complainant side required strong support from unimpeachable source of evidence

Prosecution sought corroboration from motive but in presence of proved enmity between the parties, motive was to cut both ways and was to be equally a motive for false charge

Gun recovered from possession of accused was not to be taken as a corroborative evidence as the same was licensed one and, moreover, gun did not match with all the four empties allegedly recovered from place where accused fired at the deceased

Site plan showed that deceased was fired at from a distance of 132 feet but there was burning on all four inlet wounds of deceased

Burning on wounds was to occur when muzzle was at a distance of 5 to 6 feet from victim; and burning from a distance of 132 feet was not possible

Nature of injuries caused to deceased believed the prosecution version as to distance from which deceased was fired at

Neither any pellets were recovered from premises (mosque) nor any child receiving lesson from complainant was ever examined

Accused was acquitted in circumstances"

21. For what has been discussed above, instant appeal is allowed, impugned judgment of conviction and sentence is set aside and the appellant is acquitted of the charges impugned against him. He is hoosegow, be affranchised in a trice, if not required in any other case. Murder Reference is answered in the negative. The sentence of death is not confirmed. HBT/M-179/L Appeal allowed.