2025 PLP 1650 (YLR)

Anwaarul Haq Pannun, J.

Munir Ahmad alias Bhola, the appellant, along with his co-accused Muhammad Aslam and Muhammad Yaqeen (since acquitted), faced trial in a Private Complaint under Sections 302, 324, 337-A(ii), 337-F(iv), 34 P.P.C by learned Additional Sessions Judge, Dunyapur and through the impugned judgment dated 20.02.2021 he has been convicted under Section 302(b) P.P.C and sentenced to death with compensation of Rs.200,000/- to the legal heirs of the deceased under Section 544-A Cr.P.C and in default of payment of compensation to further undergo six months S.I. Murder Reference No.08-LD of 2021 under Section under Section 374 Cr.P.C submitted by the learned trial Court for confirmation or otherwise of death sentence awarded to appellant Munir Ahmad alias Bhola also be disposed of (along with the instant appeal) through this single judgment.

2. Initially, complainant Muhammad Rasheed (PW-1) put the machinery of law in motion vide FIR No.247/2018 dated 08.06.2018 (Ex.CW2-A), registered under Sections 302, 324, 337-A(ii), 337-F(iv), 34 P.P.C at Police Station Saddar, Dunyapur, however, feeling himself aggrieved of the police investigation, to the extent of accused Muhammad Aslam and Muhammad Yaqeen, he preferred a Private Complaint (Ex.PB). As per complaint, which on all material particulars is based on the FIR, on 08.06.2018 at about 08:45 a.m. Ghulam Abbas (nephew of the complainant) along with his daughter Mst. Rukhsana Bibi and wife Mst. Hameed Mai was returning to their home on a bull cart after cutting/taking fodder; when they reached in front of their house, all of a sudden the accused Munir alias Bhola armed with gun 12-bore (double barrel), Muhammad Aslam armed with a gun and Muhammad Yaqeen, also armed with a gun, came there; accused Muhammad Aslam raised lalkara that Ghulam Abbas be taught a lesson for defaming their sister, whereupon accused Munir Ahmad alias Bhola made two fire shots (one after the other) with his gun hitting on the chest of Ghulam Abbas, and third fire shot made by accused Muhammad Aslam with his gun also hit Ghulam Abbas on his chest; fourth fire shot made by accused Muhammad Yaqeen with his gun hit Mst. Rushsana Bibi on her face, left shoulder and left side of chest; on hearing hue and cry, Riaz Hussain and Muhammad Azam came there and witnessed the occurrence; Ghulam Abbas succumbed to the injuries on his way to hospital. Motive behind the occurrence as stated by the complainant was that some days before the occurrence the sister of the accused, of her own, came to the house of Ghulam Abbas, however, he sent her back to the house of Sakhi Muhammad, father of accused Munir Ahmad alias Bhola and Muhammad Aslam and due to this grudge, the accused committed this occurrence.

3. All the accused were summoned by the learned trial Court and they were formally charge sheeted under Sections 302, 324, 337-F(iv), 337-A(ii), 34 P.P.C, to which they pleaded not guilty and claimed trial. The complainant examined as many as three witnesses (to prove the charge), besides nine CWs. Dr. Sohail Nadeem (CW-5) and Dr. Mazhar Iqbal (CW-8) furnished the medical evidence; Muhammad Rashid (PW-1), Riaz Hussain (PW-2) and Rukhsana Bibi (PW-3) furnished ocular account; Shams Hussain, S.I. (CW-3) and Saeed Ahmad, S.I. (CW-9) conducted investigation of this case.

4. On 08.06.2018 at about 03:00 p.m., post-mortem examination on the dead body of Ghulam Abbas deceased was conducted by Dr. Sohail Nadeem (CW-5) and he found the following injuries:-

1. Three lacerated inverted edges wounds measuring 0.3 cm x 0.4 cm in supra sternal notch. One pellet was present in the intra muscular region, two perforated trachea on the anterior aspect. The rest of the injuries are described in the corresponding sections of the postmortem report. 2. 63 inverted edges wounds on the right anterior chest and 21 inverted edges wounds on the left anterior chest seen. 11 pellets on the right side penetrated, fractured third, fourth and seventh ribs, penetrated plural cavity, perforated upper, middle and lower zones of the right lung. Plural cavity was full of blood. 9 pellets out of 21 pellets fractured fourth and fifth rib, perforated. 5 of these perforated different areas of heart. Pericardial cavity was full of blood. 4 pellets perforated upper and lower zones of left lung. Other pellets caused injuries up to skin subcutaneous tissue or muscle deep. All the pellets wounds were measuring from 0.3-0.4 cm x 0.3-0.4 ??.

3. Three pellets caused lacerated inverted edges wounds measuring 0.3 x 0.3 cm in the epigastric region. All the 3 pellets perforated right lob of liver. Approximate 300 ml blood was present in the peritoneal cavity. 4. 3 inverted edges lacerated wounds measuring 0.3-0.4 cm x 0.3-0.4 cm seen on the anterior aspect of right arm. On dissection the pellets were present in the intra muscular region.

5. A lacerated inverted edges wound measuring 0.3x0.3 cm in the right CUBITAL FOSSA. In his opinion, all the injuries were ante mortem and caused by firearm; injury No.2 was sufficient to cause death in ordinary circumstances, however, death occurred due to hemorrhage and shock; probable time elapsed between injuries and death was within one hour and between death and postmortem within 04 to 06 hours.

5. Learned ADPP after tendering reports of the Punjab Forensic Science Agency (Exh.PF and Exh.PG) in evidence, closed the prosecution's case.

6. The accused/appellant, when examined under Section 342 Cr.P.C, refuted all the allegations levelled against him and professed his innocence. While replying to question (Why this case registered against you and why the PWs deposed against you?), the appellant deposed as under:- "I am innocent. Evidence of PWs is self-contradictory. The complainant and police involved me in this false case. The PWs and complainant have inter-se relations with deceased as well as each other. Nothing has been recovered from me and police implicated me the instigation of complainant." The accused/appellant neither opted to appear as his own witness under Section 340(2) Cr.P.C nor produced any defence evidence.

7. We have given anxious consideration to the arguments of the learned counsel for the parties besides scanning the record with their able assistance.

8. We have noted that as per contents of FIR as well as private complaint, the complainant is not an eye-witness of the occurrence as in both these documents his presence has not been mentioned anywhere and it has been alleged that the witnesses namely Riaz Hussain and Muhammad Azam attended the deceased Ghulam Abbas. The complainant while appearing before the Court as PW-1 had also deposed that Riaz Hussain and Muhammad Azam were coming on another cart behind the cart of Ghulam Abbas, who witnessed the occurrence and tried to take care of Ghulam Abbas. Although, the complainant/PW-1 had stated that he and Muhammad Azam took Ghulam Abbas in injured condition to the hospital on a motorcycle and their clothes received blood stains at that time, however, he had admitted that they did not produce their clothes to the police. Said Muhammad Azam was not examined by the prosecution being unnecessary. Moreover, the Investigating Officer (CW-9) in his cross-examination had deposed that according to the statements of complainant and witnesses made before him the deceased was shifted to hospital on a car and he did not take into possession that car.

9. We have also noted that as per prosecution's case, the deceased Ghulam Abbas received three fire shots of 12-bore gun on his chest at the hands of appellant Munir Ahmad alias Bhola and co-accused Muhammad Aslam (since acquitted). But, no specification about the locale of the fires and the injuries allegedly made by the said accused was furnished by the witnesses of ocular account. Moreover, none of the accused was assigned the role of causing four injuries i.e. injuries Nos.1, 3, 4 and 5 on the body of the deceased and so far as injury No.2 on the chest of the deceased is concerned, the same was the result of fire shots made by the appellant Munir Ahmad alias Bhola and his acquitted co-accused Muhammad Aslam with their respective guns. However, the doctor/CW-5 during his cross-examination had admitted that injuries Nos.1, 2, 3, 4 and 5 may be of one cartridge. He had also admitted that there was only one injury on the chest of the deceased, which was caused by 63 pellets. Moreover, the medical evidence may confirm the ocular evidence with regard to the receipt of the injury, kind of weapon, duration between the injury and the death, but it cannot connect the accused with the commission of crime. The learned trial Court has already disbelieved the prosecution's case against co-accused Muhammad Aslam and Muhammad Yaqeen while pointing out the exaggerations/discrepancies in the statements of the prosecution's witnesses, such as, in the application (Exh.PA) and the FIR (Exh.CW-2/A) it was mentioned that PW-3 Mst. Rukhsana Bibi received the fire, shot made by accused Muhammad Yaqeen at the right side of her chest and arm, whereas in the complaint (Exh.PB) the complainant had improved/changed the locale of injuries of PW-3 by mentioning that she sustained gun shot at her face, left side of her shoulder and left side of her chest; the version of PW-1, PW-2 and PW-3 is not even in line with the said improved version regarding the injuries on the person of PW-3; the injured/PW-3 specifically stated that accused Muhammad Yaqeen made a fire shot with his gun, but she sustained a few superficial injuries as compared to the deceased. Due to the aforesaid dishonest improvements and contradictions, made by the PWs in their statements, we are of the view that they are not truthful witnesses and their evidence is not worthy of reliance. It is cardinal principle of law that any statement improved during trial is not worth relying. In the judgment reported as Saeed Ahmed Shah v. The State (1993 SCMR 550), it has been held by the Hon'ble Supreme Court of Pakistan that the statement of any witness improved at trial is not worth relying rather such improvement creates serious doubt about his veracity and credibility. Similar view was taken in another case reported as Muhammad Rafique and others v. The State and others (2010 SCMR 385). From the testimony of the eye-witnesses it can safely be inferred that they had been unable to convince regarding their veracity and truthfulness as to the mode and manner and how the offence took place. Motive part of the occurrence, as stated by the PWs during their evidence, was grudge of the accused/appellant against the deceased for defaming his sister, however, no independent evidence in this respect has been produced, hence, in our view the prosecution has failed to prove the motive in this case.

10. So far as recovery of gun 12-bore shown against the appellant is concerned, the alleged occurrence took place on 08.06.2018, the appellant was arrested on 22.06.2018 and on 02.07.2018 he got recovered the weapon of offence (gun 12-bore) from an iron box lying in a room of his house, in the presence of witnesses Riaz Hussain and Muhammad Azam. Although, said Riaz Hussain (brother of the deceased) had been examined as PW-2, but no independent witness of recovery was cited by the prosecution despite the fact that as per testimony of PW-2, at the time of preparation of recovery memo. (Exh.PE) many persons gathered there. Moreover, the Investigating Officer/CW-9 took into possession two empties of cartridges from the place of occurrence on 08.06.2018, however, the same were deposited with the office of Punjab Forensic Science Agency on 22.06.2018 after the delay of thirteen days. Similarly, the weapon of offence (gun 12-bore) allegedly recovered on the pointing out of the appellant on 02.07.2018, was deposited with the office of Punjab Forensic Science Agency on 11.07.2018 with the delay of eight days. Such undue delay in sending the crime empties and weapon of offence to the office of Punjab Forensic Science Agency makes the recovery doubtful as the crime empties and the crime weapons if are retained in the Malkhana unnecessarily for a long period, matching of empty with the gun appears to be fabricated and possibility of tampering with the same cannot be ruled out, therefore, the opinion of the firearm expert in this case regarding matching of the lead with the crime weapon is discarded.

11. In the light of all above, we are of the considered view that prosecution's case against the appellant is totally doubtful. It is well settled law that a single instance causing reasonable doubt in the mind of the Court entitles the accused to the benefit of the same not as a matter of grace but as a matter of right. In this context, reliance in placed on the judgments reported as Muhammad Akram v. The State (2009 SCMR 230) and Muhammad Zaman v. The State and others (2014 SCMR 749). Resultantly, Criminal Appeal No.142-LD of 2021 is allowed, the conviction and sentence recorded against the appellant Munir Ahmad alias Bhola by the learned trial Court through the impugned judgment dated 20.02.2021 are set aside and he is acquitted of the charge. Appellant shall be released from jail forthwith if not required in any other case.

12. Death Sentence of convict Munir Ahmad alias Bhola is not confirmed and Murder Reference No.08-LD of 2021 is answered in the negative. JK/M-37/L Appeal allowed.