2010 P Cr (PLP)

MANZOOR AHMAD MALIK, J.-- This judgment shall dispose of Criminal Appeal No.89 of 2004 (Muhammad Tufail v. The State) and Murder Reference No.110 of 2004 sent by the learned trial Court for confirmation or otherwise of the sentence of death awarded to the appellant, as both these matters arise out of the same judgment dated 20-1-2004 passed by the learned Additional Sessions Judge, Pakpattan Sharif, whereby, appellant was convicted, for the murder of Muhammad Ashraf (deceased), under section 302(b), P.P.C. and sentenced to death with a further direction to pay a compensation of Rs.50,000 as provided under section 544-A, Cr.P.C. to the legal heirs of the deceased in default whereof to further undergo SI for six months. However, benefit of doubt was extended to Khan Muhammad and Ejaz @ Jajji co-accused by way of acquittal from the charge levelled.

2. Brief facts of the case, as given by P.W.6 Rehmat Ali (complainant) in the F.I.R. (Exh.PD/1) are that on the fateful day at about 10.00 a.m., he along with his real brother Muhammad Ashraf (deceased) were coming on their bicycles after taking milk from Bhaini Noor Jahanian and his said brother Ashraf was ahead of him at a distance of about one acre. According to the complainant Muhammad Yar and Maqsood Ahmad were following them. It has been mentioned by the complainant in the F.I.R. that when Ashraf (deceased) reached on a Katcha Road within the land of Taj Hotiana, suddenly, Muhammad Tufail (appellant) armed with .12 bore gun, Ejaz @ Jajji (acquitted co-accused) armed with .12 bore pistol and Khan Muhammad (acquitted co-accused) armed with .12 bore pistol emerged there. Ejaz @ Jajji raised a Lalkara that Ashraf (deceased) be taught a lesson for giving slaps, upon which, Muhammad Tufail (appellant) made a straight fire with his .12 bore gun which hit on the inner side of left thigh of Ashraf who fell down from his bicycle. It has further been mentioned in the F.I.R. that the complainant and other P.Ws. tried to apprehend the accused. The complainant also stated in the F.I.R. that the accused decamped from the spot while making aerial firing, raising Lalkaras and extending threats that if any body would come near, he would be taught the same lesson. As per F.I.R., Ashraf succumbed to the injuries at the spot. The motive stated in the F.I.R. was that Ashraf(deceased) had given slaps to Mst. Nawab Bibi Nabban, the sister of Tufail appellant and in this regard a case was registered and due to this grudge appellant and others, with their common object, killed the deceased Ashraf.

3. After completion of investigation, challan was prepared and submitted before the learned trial Court, copies were distributed to the accused as required under section 265-C of the Code of Criminal Procedure, charge was framed to which the appellant/accused pleaded not guilty and claimed trial.

4. In order to prove its case, prosecution produced as many as 8 witnesses during the trial. The appellant/accused was examined under section 342, Cr.P.C. He neither produced any evidence in defence nor opted to depose on Oath as required under section 340(2), Cr.P.C. However, the learned trial Court convicted and sentenced the appellant as detailed above. The appellant, in reply to a question as to "why this case against you and why the P.Ws. have deposed against you", has stated as under:-- "It is a false case. All the P.Ws. are closely related to each other inter se and also with the deceased. They have made a false statement against me and my co-accused due to enmity". In reply to Question No.9 that "Have you anything else to say", the appellant replied in the following words:- "I am innocent. In fact it was a blind murder and an un-witnessed occurrence. Muhammad Ashraf deceased was all alone when he was fired and murdered by some unknown culprits in the early hours of the morning when it was dark when he was going to collect milk from nearby Dharies as the deceased was a man of immoral character and he had enmity with many other persons of the village. The alleged P.Ws. were not present at the spot at the time of occurrence and they came to know about the occurrence much after sunrise and thereafter they fabricated a false story in order to involve us in this case due to enmity".

5. Learned counsel for the appellant contends that both the eye-witnesses, namely, P.W.6 Rehmat Ali and P.W.7 Muhammad Yar are closely related to the deceased i.e. P.W.6 is the real brother and complainant of the case while P.W.7 is the husband of his sister; that the third independent eye-witness, namely, Maqsood Ahmad was given up; that the motive alleged in this case was that the deceased had given slaps to the sister of appellant Tufail but no evidence qua this fact was produced and even the complainant has stated in the F.I.R. that a criminal case regarding the said incident was registered but admitted during the cross-examination that no such case was registered. Learned counsel further contends that there is a conflict between the medical evidence and the ocular account because as per F.I.R., the shot fired by the 'appellant hit on the inner side of the left thigh of the deceased whereas, as per medical evidence available on the record, the said injury is on the outer side of the left thigh whereas there is an exit wound on the inner side of left thigh and there is blackening around the wound which shows that it was fired from a very close range. According to the learned counsel, the story of the prosecution that the deceased was coming back along with the milk at about 10-00 a.m. is highly improbable because normally the milk is collected even before sunrise and that even as per Investigating Officer, there was no milk in the "Drummy", which has falsified the prosecution story. Learned counsel has vehemently argued that both the eye-witnesses have stated that the deceased had died at the spot instantaneously whereas according to the doctor, who conducted the postmortem examination on the dead body of the deceased, he had died after about one hour and twenty minutes of the receipt of the injuries. Adds that report of the Forensic Science Laboratory is of no avail to the prosecution because the crime empty was taken into possession on 25-7-2002, appellant was arrested on 4-8-2002, gun (Exh.PK) was recovered on 9-8-2002, the crime empty was sent to the office of the Forensic Science Laboratory on 13-8-2092 and the licensed gun was dispatched to the Laboratory on 22-8-2002. While concluding his submissions learned counsel submits that as the prosecution has failed to prove its case against the appellant beyond any shadow of doubt, therefore, benefit of doubt be extended to the appellant and that, in the afore-referred circumstances, appellant is entitled to acquittal. Learned counsel at the end submits that though it is a case of acquittal but if this Court is not convinced with the argument of acquittal of the appellant then it is not a case of capital punishment for the reasons that allegedly the appellant fired at the leg of the deceased which is not a vital part of the body and that he made only one shot and did not repeat the same. Conversely, the learned Additional Prosecutor General for the State assisted by the learned counsel for the complainant, while vehemently opposing this appeal, contends that the appellant is named in the F.I.R. with a specific role; that the natural eye-witness account was furnished by the prosecution and despite cross-examination the defence could shake nothing from their testimony; that the P.Ws. had no enmity with the appellant to falsely depose against him -during the trial; that, even otherwise, in such-like cases substitution is a rare phenomenon; that there is no conflict between the medical evidence and the ocular account; that the prosecution has proved its case against the appellant beyond any shadow of doubt and that the conviction and sentence awarded to the appellant by the learned trial Court be maintained. We have heard learned counsel for the parties at length, have given anxious consideration to their arguments and have also scanned the evidence on record with the able assistance of learned Advocates for the parties.

8. As per prosecution, occurrence in this case took place on 25-7-2002 at about 10.00 a.m., the matter was reported to the police by P.W.6 Rehmat Ali (complainant) at 11.15 a.m. at the spot, the formal F.I.R. was registered on the same day at about 12.20 p.m. while the distance between the place of occurrence and the Police Station was about 22 kilometers.

9. The prosecution, in order to prove its case, produced two eye-witnesses, namely, P.W.6 Rehmat Ali, who is real brother of the deceased and complainant of the case and P.W.7 Muhammad Yar who is also related to the deceased.

10. First of all, we would like to see whether the story of the prosecution is probable and a prudent man, under the circumstances of the case, would believe it, and whether the eye-witness account furnished by the prosecution is confidence-inspiring as it is the bounden duty of the prosecution to prove its case beyond any shadow of doubt to maintain conviction of the appellant on a capital charge.

11. The prosecution story is that the deceased along with the complainant left his house for taking milk from Noor Jahanian and when they were retuning back along with the milk, at about 10.00 a.m., when this occurrence took place. It is the case of prosecution that the deceased used to leave his house for collection of milk at Fajar time. It has been admitted by P.W.6 Rehmat Ali, during cross-examination, that the place from where they had to fetch milk i.e. Bhani Noor Jahanian, was at a distance of about four kilometers from their village Bahawal and the distance of the place of occurrence from Bhani Noor Jahanian was about two kilometers. In the villages, milk is collected in the early morning or at evening time and in summer season, the said exercise is carried out even before, the rising of sun. If the prosecution story is taken as it is, then it is highly improbable that the deceased along with the eye-witnesses would come back after collection of milk at about 10.00 a.m. More over, the "Drummy" in which, as per prosecution's own showing, milk was' being taken, was taken into possession vide memo Exh.PJ but according to the Investigating Officer of the case, namely, P.W.8 Zahid Mehmood SI, there was no milk in the said "Drummy". The Investigating Officer, Zahid Mehmood SI (P.W.8), in his cross-examination, has admitted that there is no mention of name of the accused persons, their roles and weapons in the first inspection notes. The Investigating Officer has further admitted that there is no mention of the names of the accused persons, their weapons or their roles in the Site Plan without scale (Exh.PN) and scaled Site Plan (Exh.PA). He has also admitted that there is no mention about the presence of bicycles or "drummies" of deceased or the PWs in both the Site Plans. All these circumstances have created doubts in the prosecution story.

12. Another circumstance, which has created doubt about the prosecution story is that P.W.6 Rehmat Ali (complainant) has stated in the F.I.R. that the deceased received a firearm shot on the inner side of the left thigh but while appearing before the Court he simply stated that the fire hit on the left thigh of the deceased. He was duly confronted with his previous statement recorded by the police wherein he has stated that the first shot fired by the appellant hit on the inner side of the left thigh of the deceased. Whereas, as per medical evidence, the wound present on the inner side is an exit wound while the entry wound is on the outer side of the said thigh. P.W.2 Dr. Muhammad Younis Rana, who conducted postmortem examination on the body of deceased, noted the following injuries:-- "(1) A firearm entrance wound 2 1/2 cm x 2 'A cm with inverted margins with blackening around it at middle of left thigh at outer slue. (2) A firearm exit wound 15 cm x 10 cm with inverted margins with crushing of blood vessels and muscles and bone (femur) of left thigh was fractured, wound was present at middle of inner side of thigh. Corresponding hole to injury No.1 was present". As per prosecution's own showing, the deceased met with instantaneous death at the spot while as per opinion of the doctor (P.W.2), the duration between injuries and death was one hour and twenty minutes. So, in our view, the ocular account in this case is not in line with the medical evidence.

13. The motive part of the prosecution case as set out in the F.I.R. is that Ashraf (deceased) had given slaps to Mst. Nawab Bibi @ Nabban, the sister of Tufail appellant and in this regard a case was also registered but P.W.6 Rehmat Ali has stated during the course of cross-examination, that no criminal case was registered in that regard. Mst. Nawab Bibi was the natural witness of this part of the prosecution story but she was neither produced before the Court nor the Investigating Officer, so, the prosecution has also failed to prove the motive part of its story. In the case of Noor Muhammad v. The State and another (2010 SCMR 97), the Hon'ble Supreme Court of Pakistan, at page 101, has been pleased to observe as under:-- " .It has been held in the case of Muhammad Sadiq v. Muhammad Sarwar (1979 SCMR 214) that when motive is alleged but not proved then the ocular evidence required to be scrutinized with great caution. In the case of Hakim Ali v. The State (1971 SCMR 432), it has been held that the prosecution though not called upon to establish motive in every case, yet 1 once it has set up, a motive and failed to establish it, the prosecution must suffer consequence and not the defence. In the case of Ameenullah v. State (PLD 1976 SC 629), it has been held that where motive is an important constituent and is found by the Court to be untrue, the Court should be on guard to accept prosecution story".

14. As far as report of the Forensic Science Laboratory is concerned, crime empty in this case was taken into possession on 25-7-2002, appellant was arrested on 4-8-2002, the gun was allegedly recovered on 9-8-2002 through memo Exh.PK, the crime empty was sent to the office of the Forensic Science Laboratory on 13-8-2002 and the licensed gun was dispatched to the Laboratory on 22-8-2002, therefore, the said report of the FSL is doubtful. In this regard reliance is placed on Muhammad Ashfaq v. The State (1995 SCMR 1321), wherein, at page 1326, it was held as under:-- " .The crime empty was sent to the Ballistic Expert after the recovery of the gun, therefore, the recovery has become doubtful "

15. In the afore-referred circumstances, this Court is of the considered view that the prosecution has failed to prove its case against the appellant beyond any shadow of doubt. It is settled by the apex Court of the country that in case of doubt, its benefit must go to the accused not as a matter of grace but of right. The same proposition came up for consideration in the case reported as Muhammad Akram v. The State (2009 SCMR 230), wherein, at page 236, the Hon'ble Supreme Court of Pakistan, held as under:- "

13. The nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State (1995 SCMR 1345) that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right". (emphasis supplied)

16. In view of what has been discussed above, this appeal is allowed, the impugned judgment is set aside and the appellant is acquitted from the charges levelled against him. He is behind the bars and shall be released forthwith if not required to be detained in any other ease. Murder Reference is answered in the NEGATIVE and sentence of death is NOT CONFIRMED. N.H.Q./M-236/L Appeal accepted.