2016 P Cr (PLP)

ABDUL SAMI KHAN, J.

Through this appeal under section 410, Cr.P.C. Muhammad Naeem and Allah Yar appellants have called in question the judgment dated 30.09.2010 handed down by the learned Additional Sessions Judge, Pakpattan, wherein Muhammad Naeem appellant was convicted under section 396, P.P.C. for committing murder of Rasheed deceased during dacoity and was sentenced to death. He was also ordered to pay fine of Rs.100,000/- (Rupees one hundred thousand only). In case of non-payment thereof he shall undergo simple imprisonment for six months. Allah Yar appellant was convicted under section 396, P.P.C. and was sentenced to life imprisonment with fine of Rs.50000/- (Rupees fifty thousand only). In case of non-payment thereof, he shall further undergo simple imprisonment for six months. The appellants have filed the instant appeal against their convictions and sentences whereas the learned trial court has sent a Reference under section 374, Cr.P.C. which has been numbered as Murder Reference No.547 of 2010 for confirmation or otherwise of the death sentence passed against Muhammad Naeem appellant. We are inclined to decide both these matters together through this single judgment.

2. The unfortunate occurrence was reported to the police by Abdul Majeed complainant (PW-5) through statement (Exh.PA), consequently FIR No.4/2009 dated 01.01.2009 (Ex.PA/1) was lodged at Police Station Saddar, District Pakpattan, in respect of offence under sections 302, 395, 412, P.P.C. The prosecution story set forth in the FIR by the complainant (Ex.PA) is reproduced below:- "The complainant was resident of Chah Babaranwala Dakhali Mouza Bohar and was running a shop. On the fateful night at about 8:00 p.m. he along with his brother Abdul Rasheed and Muhammad Rafique after shutting down the shop were going back to their home. His brother Abdul Rasheed was going ahead of them on his motorcycle CD-70 without number whereas the complainant, his brother Muhammad Rafique and cousin Muhammad Gulzar were going on a tractor behind him. When they reached the graveyard Baba Noor Ashaab, they saw that Muhammad Naeem armed with rifle .7 MM, Ghulam Qadir armed with firearm weapon, to whom the complainant and PWs already knew, and three unknown accused persons armed with firearm weapons stopped his brother Abdul Rasheed, who was some distance ahead of them, with the intention to commit dacoity. Abdul Rasheed threw his motorcycle and after making some resistance with the accused persons, ran towards wheat crop of Munir Ahmad on eastern side. He was chased by Muhammad Naeem armed with rifle and fired at Abdul Rasheed which landed on his right flank which made its exit through chest from left side. His brother fell down on the ground. The occurrence was witnessed by the complainant, Muhammad Rafique and Muhammad Gulzar in the head light of tractor. On seeing them coming the accused persons fled away from the place of occurrence towards eastern side along with their respective weapons. After attending Abdul Rasheed it came to their knowledge that a cash amount of Rs.37000/- were missing from his pocket. His brother succumbed to the injuries at the spot. After leaving his brother Muhammad Rafique to guard the dead body, the complainant himself went to the Police Station for the registration of FIR."

3. The investigation in this case was conducted by Saeed Ahmad SI/IO (PW-10), then posted as Incharge Investigation Police Station Saddar, Pakpattan. After receiving the file of this case, he proceeded to the place of occurrence, inspected the dead body of deceased Abdul Rasheed, prepared injury statement Exh.PM, inquest report Exh.PN and sent the dead body to the hospital for postmortem examination. He took blood stained earth from the spot vide recovery memo. Exh.PD, collected one empty P4 of rifle .7 MM from the spot which was taken into possession vide recovery memo Exh.PE. He recorded the statements of PWs under section 161, Cr.P.C. On 01.01.2009 he recorded supplementary statement of complainant in which he implicated Allah Yar and Ghulam Murtaza alias Ajoo accused persons. On 17.02.2009 he arrested Muhammad Naeem and Allah Yar appellants in this case. On 22.02.2009 Muhammad Naeem appellant made disclosure and got recovered rifle .7 MM P2 along with two live bullets P2/1-2 which was taken into possession vide recovery memo Exh.PG. He also got recovered the snatched amount of Rs.1500/- with denomination of the notes, 2-notes of Rs.500/- each and 5-notes of Rs.100/- each P6/6-12 which were taken into possession vide recovery memo, Exh.PH. On the same day i.e. 22.02.2009 Allah Yar alias Yaree appellant made disclosure and got recovered pistol .30 bore P21 which was taken into possession vide recovery memo Exh.PL. He also got recovered cash amount of Rs.2000/- P14-20 with denomination of one note of Rs.1000/-, -01- note of Rs.500/- and 5-notes of Rs.100/- each along with a golden ring P13 of Abdul Rasheed deceased which were taken into possession vide recovery memo Exh.PJ. After completion of investigation, report under section 173, Cr.P.C. was prepared and submitted in the learned trial court. Charge was framed against the appellants on 07.10.2009 under sections 302, 395, P.P.C. to which they pleaded not guilty and claimed trial.

4. To substantiate its version at the trial, the prosecution produced as many as twelve prosecution witnesses before the learned trial court. The ocular account was furnished by Abdul Majeed complainant (PW-5) and Muhammad Rafique (PW-6). Saeed Ahmad SI is the Investigating Officer of the instant case. His statement was recorded by the learned trial Court as PW-10 wherein he stated about various steps taken by him during the course of investigation.

5. Dr. Ghulam Abbas, Medical Officer, DHQ Hospital, Pakpattan appeared as PW-7 and stated that doctor Qamar Masood Chishti who had since died had conducted postmortem examination on the dead body of deceased Abdul Rasheed. He identified the signatures and handwriting of doctor Qamar Masood Chishti (since dead) on postmortem report Exh.PJ and diagram Exh.PJ/1. During cross-examination he admitted that first injury on the right side of chest of deceased Abdul Rasheed is entry wound and second injury on the anterior left chest wall is exit wound.

6. After placing on record the report of Chemical Examiner Exh.PP, report of Serologist Exh.PQ and report of Forensic Science Laboratory Exh.PR, the prosecution closed its evidence.

7. The appellants in their statements recorded under section 342, Cr.P.C. professed their innocence and pleaded false implication in this case. In reply to a question, "why this case against you and why the PWs deposed against you", appellant Muhammad Naeem stated as under: "I was falsely involved in this case due to ulterior motive. In fact it was an unseen and untraced occurrence. PWs were not present at the spot at the time of occurrence. The prosecution story did not prove the time of death and there was a huge contradiction in between the medical and ocular evidence in regard with the time of occurrence and seating of injuries which shows that the PWs were not present and they cooked up a false story in connivance with the police latterly. The FIR was lodged after preliminary inquiry and there was also material differences and contradictions in between Exh.PA/application and the depositions of the PWs in the court. The complainant involved so many persons in this case due to suspicion and they remained in police custody in different times. In fact my father Bagh Ali had took the land of the complainant on lease and agreement about tenancy between my father and complainant was prepared. Subsequently the complainant refused to hand over the land to my father and he promised to return the amount of Rs.80,000 which he received in cash at the time of said agreement. He returned Rs.13000/- only to my father and gave a pronote of remaining amount of Rs.67000/- to my father, but the complainant did not pay Rs.67,000/- at fixed time i.e. 02.12.2005 and then my father filed a civil suit for the recovery of above-mentioned amount, on the basis of pronote in the Court of learned ADJ against the complainant and during the days of occurrence that suit was pending in the court. Due to this grudge the complainant falsely involved me in this unseen occurrence. All the PWs are real brothers of the deceased as well as complainant and on the asking of complainant, they falsely deposed against me." In response to similar question Allah Yar appellant stated as under:- "I was falsely involved in this case due to ulterior motive. In fact it was an unseen and untraced occurrence. PWs were not present at the spot at the time of occurrence. The prosecution story did not prove the time of death and there was a huge contradiction in between the medical and ocular evidence in regard with the time of occurrence and seating of injuries which shows that the PWs were not present and they cooked up a false story in connivance with the police latterly. The FIR was lodged after preliminary inquiry and I was not named in the FIR and there was material differences and contradictions in between Exh.PA/application and the depositions of the PWs in the court. My co-accused Naeem is my nephew and his father Bagh Ali had took the land of the complainant on lease and agreement about tenancy between his father and complainant was prepared. Subsequently the complainant refused to hand over the land to his father and he promised to return the amount of Rs.80,000/- which he received in cash at the time of said agreement. He returned Rs.13000/- only to his father and gave a pronote of remaining amount of Rs.67000/- to his father, but the complainant did not pay Rs.67000/- at fixed time i.e. 02.12.2005 and then his father filed a civil suit for the recovery of above-mentioned amount on the basis of pronote in the Court of learned ADJ against the complainant and during the days of occurrence that suit was pending in the court. The complainant involved so many persons in this case due to suspicion and they remained in police custody in different times. I used to purchase oil from the Oil Agency of the complainant party and I have a dispute with the complainant on the rates of Oil prior to the occurrence. Hence, the complainant falsely involved me in this unseen occurrence latterly. All the PWs are real brothers of the deceased as well as complainant and on the asking of complainant they falsely deposed against me."

8. The appellants neither opted to produce defence evidence nor to record his statement under section 340(2), Cr.P.C. in disproof of allegation leveled against them by the prosecution.

9. At the end of the trial, after thrashing the entire evidence and evaluating the arguments advanced by the learned counsel for the parties in support of their respective versions, learned trial Court proceeded to convict and sentence the appellants as mentioned in paragraph No.1 of this judgment.

10. Learned counsel for the appellants contends that the judgment is against law and facts of the case. The prosecution has miserably failed to prove its case against the appellants beyond any shadow of doubt. There is a delay of thirteen hours in conducting the post-mortem examination of the deceased which clearly shows that the FIR has been got recorded after due deliberations and consultations in connivance with the local police after reserving a place in the daily diary. The complainant has spread the net wide and falsely involved the appellants in this case in connivance with the local police so that nobody is left behind to pursue this case. The complainant admitted in his cross-examination that he knew Allah Yar appellant since his childhood. If it was true then the complainant should have mentioned the name of Allah Yar appellant in the FIR but he had not done so and named him in this case through supplementary statement recorded on 01.01.2009 and did not mention any reason why he could not name him in the first information report. In such a situation the story of the prosecution set forth in the FIR is nothing but a pack of lies which has been carved out after having come to know about the murder of deceased Abdul Rasheed. As a matter of fact it was an unseen occurrence and the appellants have been involved in this case due to civil litigation pending between father of Muhammad Naeem appellant and the complainant who is brother of deceased. The prosecution witnesses are related inter se and also related to the deceased. The prosecution has not produced any corroborative piece of evidence in respect of these witnesses. There are glaring contradictions in the statements of the prosecution witnesses. The recoveries have been planted upon the appellants. Although the report of Forensic Science Laboratory qua matching of crime empty with the weapon of offence recovered from the appellant Naeem is positive yet the same was not put to the appellant Naeem in his statement recorded under section 342, Cr.P.C. It is well-settled that if any piece of evidence is not put to the accused in his statement under section 342, Cr.P.C. then the same cannot be used against him for his conviction. The prosecution has failed to prove its case against the appellants and the benefit of doubt always goes to the accused. The learned counsel prays that the appeal filed by the appellants be allowed and they be acquitted from the charge.

11. On the other hand learned Deputy Prosecutor-General assisted by the learned counsel for the complainant contends that the appellants are nominated in the FIR and the supplementary statement with specific role attributed to them and the role attributed to them is borne out from the postmortem examination report of Abdul Rasheed deceased. The matter was promptly reported to the police and there is no element of deliberation or consultation. There is no delay in conducting the postmortem examination of the deceased as it was not within the control of the complainant to force the doctor to conduct the postmortem examination of the deceased expeditiously. Relation inter se is no ground to discard the trustworthy and confidence inspiring evidence of the prosecution witnesses. The prosecution has successfully proved its case against the appellant by trustworthy and confidence inspiring evidence adduced by the prosecution witnesses. The weapon of offence i.e. rifle .7MM and pistol .30 bore along with cash snatched from the deceased were recovered from the appellants by the Investigating Officer. One crime empty was also collected by the Investigating Officer from the place of occurrence and the report of Forensic Science Laboratory is positive in this regard. The complainant has no previous enmity to falsely involve the appellant in this case. The prosecution witnesses are consistent on each and every material point. There seem no discrepancies in their statements. The prosecution has successfully proved its case against the appellants beyond any doubt, thus, the appeal filed by the appellants be dismissed.

12. We have heard the learned counsel for the parties at length, have given our anxious consideration to their arguments and have also scanned the record with their able assistance.

13. Although the FIR has been shown to be registered within a span of forty-five minutes yet the fact remains that the post-mortem examination of the deceased Abdul Rasheed was conducted by the doctor on 02.01.2009 at 9.00 am with a delay of thirteen hours which fact shows that the occurrence has not taken place at the time mentioned in the FIR because while appearing as PW-7 Dr. Ghulam Abbas has categorically stated during his cross-examination that duration of death and post-mortem examination was 4 to 5 hours. If his statement is considered as correct then the deceased had been done to death at about 4.00 a.m. on 02.01.2009. All this shows that the FIR was not registered in this case at the time mentioned therein but the same has been registered after due deliberations and consultations.

14. To prove the ocular account the prosecution has produced two eye-witnesses, i.e. Abdul Majeed complainant (PW5) and Muhammad Rafique (PW6). It is a nighttime occurrence and no source of light has been mentioned by the complainant or the other eye-witness except the light of tractor in which the eye-witnesses had claimed to have seen the occurrence. According to the scaled site-plan Ex.PK/1 which was prepared by the Draftsman on the instructions of eye-witnesses the place from where the eye-witnesses allegedly had seen Naeem appellant inflicting firearm injury on the person of deceased along with his co-convict Allah Yar appellant is at a distance of thirty-eight and a half feet. It is not possible for a person to recognize an accused/assailant from such a long distance in the dark hours of a winter night. Furthermore according to the site plan the deceased received injury at point 'A' which place was situated in field of wheat crop belonging to one Munir Ahmad and this fact also shows that the identification of assailant and that of deceased inasmuch the seat of injury, nature of weapon of offence used by the appellant could not be recognized by the eye-witnesses from such a distance. If this is not enough, even the prosecution has not produced the tractor on which the eye-witnesses were allegedly travelling either before the Investigating Officer during the investigation or before the learned trial Court. This fact has created serious doubt in the story of the prosecution mentioned in the FIR and possibility cannot be ruled that the prosecution has introduced tractor in order to establish source of light at the place of occurrence.

15. There is another glaring contradiction between the statements of eye-witnesses because one of the eye-witness Abdul Majeed complainant (PW5) stated before the learned trial court that the deceased after receiving firearm injury at the hands of Muhammad Naeem appellant fell on the ground at a distance of 5/6 feet from the road whereas Muhammad Rafique (PW6) in his statement has given the distance as 55 feet. Even according to the Post-mortem Examination Report the mouth of the deceased was semi open which also shows that he had died an un-attendant death. Had the eye-witnesses who were close kith and kin of the deceased present at the scene of crime at relevant time, they should have attended the dead body and closed the mouth of the deceased. It shall also not be out of place to mention here that during the investigation of this case the prosecution has also involved Muhammad Ahmad, Khadim Hussain, Rehmat Ali Daha and Lal Khan as accused but during their remand they have been found innocent and they have been exonerated from this case. This also shows that if the complainant or the other eye-witness were sure about the appellants they would not have involved the above said persons in this case.

16. Another important fact to be pointed out in this case is that according to the prosecution the deceased has been done to death by the appellants during dacoity but according to the narration of the FIR in which the complainant has categorically stated that after throwing his motorcycle the deceased has run away and he has been chased by the appellants and thereafter Muhammad Naeem appellant has caused fatal firearm injury on his body. In this context we have observed that it does not appeal to a prudent mind that when the victim who was empty-handed ran away from the spot leaving behind his motorcycle then why he was chased by the appellants and fired upon by Muhammad Naeem appellant. This shows that the factum of dacoity has been introduced by the complainant after deliberations in order to give heinous look to the occurrence. Yet another important factor in this case is that according to the eye-witnesses the victim was running away from the place of occurrence when he was chased and fired upon by the appellant Muhammad Naeem but the locale of injury on the person of deceased speaks otherwise as he has received injury on the right side of his chest near armpit which went through and through from the chest. In this context we may observe that victim should have received injury at his back instead of right armpit. By considering this fact we have come to a definite conclusion the eye-witnesses were not present at the place of occurrence at relevant time and they have been procured later on in order to become false witnesses of the occurrence against the appellants.

17. Admittedly a civil suit was instituted by Bagh Ali, father of Muhammad Naeem appellant against the complainant Abdul Majeed and the former has also to take Rs. 62000/- from the latter, therefore, in this eventuality a possibility cannot be ruled out of consideration that the appellants have been involved in this case due to civil litigation as stated above the real culprits remained untraceable in this case. As far as Allah Yar appellant is concerned admittedly he is not named in the FIR and he has been introduced in this case through a supplementary statement, though on the same night but the fact remains that during cross-examination on the complainant he has admitted that he knew Allah Yar appellant right from his child hood as he is resident of the same vicinity where the occurrence took place. It has been also observed by us that name of the appellant Allah Yar does not figure in un-scaled site-plan (Ex.PO) as well as scaled site-plan (Ex.PK/1) which was got prepared by the Draftsman on 05.01.2009 after four days of the occurrence which fact shows that the supplementary statement was introduced much later by the complainant after joining hands with the Investigating Officer of this case. Had the complainant nominated Allah Yar appellant in his supplementary statement on the same night immediately after the occurrence his name should have been mentioned by the Investigating Officer in un-scaled site-plan (Ex.PO) prepared by him and also in the scaled site-plan (Ex. PK/1). We have gone through the police file. Even the name of Allah Yar appellant does not figure in the inspection note prepared by the Investigating Officer on his first visit at the place of occurrence. In the background of above said circumstances we have come to a definite conclusion that (as stated above) the deceased was not done to death by the appellants during dacoity rather he has been murdered due to some unknown reason which have not been brought on the record by the prosecution. In the circumstances mentioned above the prosecution remained unable to prove ocular account through any confidence inspiring evidence.

18. Admittedly Abdul Majeed complainant (PW5) was brother and Muhammad Rafique (PW6) was cousin of the deceased and they both are also related inter se. So both of them are related and interested witnesses who had tried to spread the net wide and falsely entangle the persons of their own choice in this case in lieu of the real culprit. No independent witness from the vicinity had been produced by the complainant to prove charge of murder against the appellants. Even Muhammad Gulzar whose name is also mentioned in the FIR has also not produced before the learned trial court as an eye-witness. Law is settled that evidence adduced by an interested and related witness needs strong corroboration in a murder case which is very much lacking in this case. Muhammad Naeem appellant was sentenced to death whereas Allah Yar appellant was sentenced to life imprisonment by the learned trial court under section 396, P.P.C. and admittedly they have not been convicted and sentenced under section 302, P.P.C. Even the complainant has not filed any appeal in this regard.

19. As far as recovery of weapon of offence from the appellants is concerned, during investigation Allah Yar appellant made disclosure and got recovered pistol .30 bore. So far as recovery of weapon of offence i.e. rifle .7 MM from Muhammad Naeem appellant is concerned admittedly he was arrested on 17.02.2009 whereas the recovery was shown to be effected from him on 22.02.2009. The Investigating Officer has taken into possession crime-empties from the place of occurrence on 01.01.2009 but surprisingly the empties were sent to the Office of Forensic Science Laboratory on 17.02.2009, the date on which Muhammad Naeem appellant shown to have been arrested by the Investigating Officer and there is no plausible explanation as to why the crime-empties were kept in Maal Khana for such a long period. Therefore, possibility cannot be ruled out of consideration that the crime-empties firstly prepared by the Investigating Officer and then the same were sent to the Office of Forensic Science Laboratory in order to procure positive report to strengthen the prosecution case. Furthermore it has been observed by us that report of Forensic Science Laboratory has not been put to Muhammad Naeem appellant in his statement under section 342, Cr.P.C. It is settled law that if any piece of evidence is not put to the accused in his statement under section 342, Cr.P.C. then the same cannot be used against him for his conviction. Reliance is placed on the case of Muhammad Shah v. The State (2010 SCMR 1009). Even in the case of Sheral alias Sher Muhammad v. The State (1999 SCMR 697) it has been held that any circumstance appearing in the evidence must be put to the accused before it is used against him. There is another strong reason for not using the same against the appellant because it was not suggested to him in his statement under section 342, Cr.P.C. So the recovery in this case allegedly recovered from Muhammad Naeem appellant is of no consequence and the same is not helpful to the case of the prosecution. Furthermore recovery of Rs.1500/- from Muhammad Naeem appellant and Rs.2000/- from Allah Yar appellant is not believed as denomination of currency notes had not been mentioned by the complainant in the FIR. Such amount was easy to plant upon the appellants. As regards recovery of silver ring of the deceased, suffice it to observe that neither it has been mentioned in the FIR that deceased was wearing silver ring at that time nor it has been alleged by complainant that silver ring was snatched by the appellants during the occurrence inasmuch as no identification memo is available on record in this regard. We, therefore, disbelieve the same.

20. The upshot of our discussion made above is that shadow of doubt is looming large in this case rendering the case of the prosecution smeared with dishonest and polluted evidence adduced by the prosecution witnesses. Thus, the prosecution has failed to prove its case against Muhammad Naeem and Allah Yar appellants beyond any reasonable shadow of doubt. It is settled law that not many circumstances creating doubt in the prosecution story are required to acquit an accused rather single circumstance creating doubt is enough to extend benefit of same to the accused not as a matter of grace but as a matter of right. It is also golden principle of Islamic jurisprudence that it is better to acquit ten guilty persons than to convict a single innocent person. So by extending the benefit of doubt to the appellants we acquit them of the charge. Criminal Appeal No. 2443 of 2010 is, therefore, allowed and Muhammad Naeem and Allah Yar appellants are acquitted of the charge. Both the appellants shall be released from the jail forthwith, if not required to be detained in connection with any other case. Murder Reference No. 547 of 2010 is answered in the negative and the death sentence passed by the learned trial court against Muhammad Naeem is not confirmed. ARK/M-152/L Appeal allowed.