2025 P Cr (PLP)

Aalia Neelum, C.J.

The appellant-Ali Akbar Zia, son of Anwar Ali, Caste Kamboh, resident of Chak No.301/HR, Tehsil Fortabbas District Bahawalnagar, was involved in case FIR No.320 of 2019, dated 21.10.2019, registered under Sections 302, 34, 109 P.P.C., at P.S. Marrot, District Bahawalnagar and was tried by the learned Additional Sessions Judge, Fort-Abbas. The trial court seized with the matter in terms of the judgment dated 12.03.2020, convicted Ali Akbar Zia (the appellant) under Section 302 (b) P.P.C, and sentenced to Death as Tazir for committing Qatl-e-Amd of Zafar (the deceased), with the direction to pay compensation of Rs.2,00,000/- to the legal heirs of the deceased as envisaged under section 544-A of Cr.P.C and in case of default thereof, to undergo 06-months S.I further.

2. Feeling aggrieved by the trial court's judgment, Ali Akbar Zia, the appellant, has assailed his conviction and sentence by filing the instant jail appeal bearing Criminal Appeal No.195 of 2020. The trial court also referred the M.R. No.08 of 2020 (The State v. Ali Akbar Zia) to confirm the death sentence awarded to the appellant. Both the matters arising from the same judgment of the trial court are being disposed of through a single judgment.

3. The prosecution story, as alleged in the FIR lodged on the oral statement (Ex.PA) of Hammad Zafar (PW-2)-the complainant, is that he has joint land with his uncles; that on 21.10.2019 at noon time, the complainant (PW-2) was ploughing the fields with tractor, Amjad Abbas and Muhammad Anwar (co-accused since acquitted) and Ali Akbar (the appellant) were also present in their fields. Amjad Abbas, who was having hatchet in his hand, stopped the complainant and started abusing him; the complainant (PW-2) called telephonically to his father Zafar, who also reached the spot; the accused persons Muhammad Anwar etc. started to abuse and beating with fists and slaps to Zafar, father of the complainant; meanwhile Ali Akbar (the appellant) took repeater 12-bore from his house on his motorcycle and the time was about 01:45 p.m; Amjad Abbas (co-accused since acquitted) said Ali Akbar (the appellant) to make fire upon Zafar and he might not be let alive; then Ali Akbar (the appellant) made straight fire with his repeater 12-bore with intent to kill Zafar, which hit Zafar on flank under the left arm, who fell down. PWs Muhammad Arshad and Muhammad Majeed (PW-3) also reached the spot. The complainant attended his father and departed for RHC Marrot, and his father succumbed to the injuries on the way. The motive behind the occurrence was a dispute over land.

4. Upon receiving information of the occurrence, Zahoor-ud-Din, Inspector (PW-5) reached RHC Marrot, where Hammad Zafar (PW-2)-the complainant got recorded his statement (Ex.PA) to him (PW-5), who after incorporating the police proceedings on oral statement (Ex.PA), sent the same to police station through Muhammad Ramzan 1288/C for registration of formal FIR, whereupon, formal FIR was chalked out by Zahid Iqbal, S.I. After registering the case, the investigation was conducted by Zahoor-ud-Din, Inspector (PW-5), and Zahid Iqbal S.I. (PW-7), who found the accused/appellant guilty, prepared a report under Section 173, Cr.P.C., and sent the same to the court of competent jurisdiction. On 10.12.2019, the trial court formally charge-sheeted the appellant, to which he pleaded not guilty and claimed trial. In support of its version, the prosecution produced as many as nine (09) witnesses.

5. The ocular account, in this case, has come out from the statements of Hammad Zafar (PW-2)-the complainant, and Muhammad Majeed (PW-3)-the eye-witness, whereas Dr. Sulman M.O (PW-6), who conducted the postmortem examination of Zafar (the deceased) found the following injuries on his person: - INJURIES

1. A 3 cm long and 3 cm wide hole was present at the left side of the chest at the level of the 8th rib, 15 cm away from the left nipple. The 8th rib was damaged, and the underlying viscera was also damaged. This was an entry wound, blackening and burning present. There was no exit wound. After conducting the postmortem examination of Zafar (the deceased), the doctor opined that cardiopulmonary arrests caused death; enormous bleeding occurred after the gunshot injury, which led to death. The statements of the remaining prosecution witnesses are formal.

6. The learned Assistant District Public Prosecutor gave up PW-Muhammad Arshad being unnecessary and closed the prosecution evidence after tendering reports of Punjab Forensic Science Agency (Ex. PQ and Ex. PR).

7. The appellant was also examined in terms of Section 342 Cr.P.C., wherein he did not opt to appear as his own witness in terms of Section 340(2) Cr.P.C.; however, he produced Mark-DA, Mark-DB, and Mark-DC in his defence evidence. In response to a particular question about why this case was against him and why the PWs deposed against him, the appellant made the following depositions: - "I was not present at the place of occurrence at the relevant time. The complainant falsely involved me in this case due to family dispute. The private pws are closely related to the deceased and due to family dispute and malice regarding land etc, they have falsely deposed against me."

8. After evaluating the evidence available on record and considering arguments advanced by both sides, the trial court found the prosecution version proved beyond any shadow of reasonable doubt, which resulted in the appellant's conviction and sentence in the above stated terms.

9. We have carefully considered both sides' rival submissions and minutely reviewed the evidence on record.

10. As per the prosecution's case, the incident took place at 01:45 p.m. on 21.10.2019 in Chak No.301/H.R. situated in the territorial jurisdiction of Police Station Marrot, which is at a distance of 20 km from the place of occurrence. During the incident, the father of the complainant, namely Zafar, received firearm injuries caused by Ali Akbar Zia (the appellant). According to Hammad Zafar (PW-2), the complainant, witnesses Muhammad Arshad and Muhammad Majeed attracted at the place of occurrence, who took his father and left towards RHC Marrot, and his father succumbed to injuries on the way to RHC Marrot. Whereas formal FIR (Exh.PA/3) was chalked out by Zahid Iqbal S.I. (PW-7) on 21.10.2019 at 02:35 p.m., on the oral statement (Ex.PA) of Hammad Zafar (PW-2)-the complainant made on 21.10.2019 at 02:20 at RHC Marrot to Zahoor-ud-Din Inspector (PW-5)-the investigating officer. We have carefully examined the testimonies of eye-witnesses, i.e., Hammad Zafar (PW-2)-the complainant, Muhammad Majeed (PW-3), eye-witness and Zahoor-ud-Din Inspector (PW-5)-the investigating officer and the documentary evidence, i.e., Fard Biyan (Ex.PA), FIR (Ex. PA/3), and inquest report (Ex. PP). A scrutiny of their statements indicates that their presence at the time of occurrence is highly doubtful, and it is not safe to rely upon their testimonies only because they claimed that they are eye-witnesses of the occurrence. Hammad Zafar (PW-2)-the complainant deposed during examination-in-chief that: - "I took my father to R.H.C Marrot, but in the way he succumbed to injuries.

I was present in the hospital, police reached there and recorded my statement Exh. P.A., upon this I put my signature in English as Exh.P.A/1 as token of correctness. Thereafter, I went to police station for registration of case." During cross-examination, Hammad Zafar (PW-2), the complainant deposed as below: - "Soon after sustaining the fire shot, I shifted my father to R.H.C Marrot. There is distance of 18/19 Km between Marrot and place of occurrence, it consumed 18/19 minutes in reaching RHC Marrot from the place of occurrence. Soon after our reaching the hospital, police also reached there at about 02:15/20 minutes. Police remained in the hospital for 5/7 minutes and that time was consumed in recording my statement. I remained in the police station for 8/9 minutes for registration of FIR." Muhammad Majeed (PW-3)-the eye-witness deposed during examination-in-chief that: - "I and Muhammad Arshad witness attended the deceased Zafar. Hammad Zafar put his father in a car and took to R.H.C Marrot, but Zafar succumbed to injuries in the way to the hospital." Zahoor-ud-Din, Inspector (PW-5)-the investigating officer deposed during examination-in-chief that: - "Stated that on 21.10.2019 I was posted at P.S Marrot as S.H.O, on the same day after receiving the information regarding the occurrence I reached at R.H.C Marrot, where I recorded the statement of complainant Hammad Zafar Exh.P.A and endorsed my police proceedings as Exh.P.A/2 and sent the complaint by the hand of Muhammad Ramzan 1288/C to police station for registration of formal FIR." Zahoor-ud-Din, Inspector (PW-5)-the investigating officer deposed during cross-examination that: - "I received the information about the occurrence at about 02:00 pm. I reached at R.H.C Marrot within 2/3 minutes via police van. I do not remember whether the doctor was present there or not. I do not know whether the doctor checked the deceased or not. I stayed at R.H.C Marrot for about 20/25 minutes. After recording the statement of complainant, I sent the same to police station and then we proceeded to place of occurrence.

We departure from R.H.C Marrot towards place of occurrence at about 02:25 pm. Place of occurrence is situated at the distance of 15/20 Km from R.H.C Marrot." The depositions of the above-said witnesses reveal that the incident was reported to Zahoor-ud-Din, Inspector (PW-5)-the investigating officer at R.H.C Marrot. Whereas, contrary to the depositions of Hammad Zafar (PW-2)-the complainant, Muhammad Majeed (PW-3)-the eye-witness and Zahoor-ud-Din Inspector, (PW-5)-the investigating officer, inquest report (Ex. PP) reveals that in column No.1 relating to the place where death occurred or dead body was recovered, "301/HR " is mentioned. While, in column No.24 of the inquest report (Ex. PP), dead body was shown as lying at in the area of complainant . The scanned copy of relevant page of inquest report (Ex.PP) is as under:- At the last page of inquest report (Ex. PP), the place where inquest report (Ex. PP) was prepared is mentioned as "Chak No.301/HR". Besides, police proceedings incorporated by Zahoor-ud-Din, Inspector (PW-5)-investigating officer, reveals that after recording the verbal statement of Hammad Zafar (PW-2)-the complainant, he (PW-5) inspected the dead body of Zafar-the deceased, prepared the injury statement and sent the dead body for postmortem examination to Tehsil Headquarter Hospital, Fort Abbas through Dil Murad 859/C (PW-4) and after that he sent the Fard Biyan (Ex. PA) to the police station for registration of formal FIR through Muhammad Ramzan 1288/C (not cited as witness). At the end of the police proceedings (Ex. PE/1), the area where the same was incorporated is mentioned as "301/HR ". The police proceedings incorporated by Zahoor-ud-Din, Inspector (PW-5)-the investigating officer are reproduced hereunder: - (Bold and underline for emphasis) The documentary evidence belied the testimonies of the prosecution witnesses. We have examined this case considering the above oral and documentary evidence. One very important aspect of the present case is that in column relating to the brief history of the case, it is mentioned that the father of the complainant Zafar succumbed to injuries. The relevant portion of the column of the brief history is as under: - There were discrepancies and clear conflicts between the oral and documentary evidence. It is relevant to mention here that Zahoor-ud-Din, Inspector (PW-5), the investigating officer, deposed that he received the information about the incident at about 2:00 p.m. The inquest (Ex. PP) was prepared around 01:45 p.m., and it was prepared before lodging the FIR as reflected in the police proceedings (Ex. PE/1), incorporated at the bottom of the oral complaint (Ex. PA). We believe that FIR is ante-timed because the number of FIR was mentioned on the face of the inquest report (Ex. PP), and there is a variance in the FIR and the inquest report (Ex. PP). In the face of the above-said circumstances, the possibility of the FIR being ante-timed cannot be ruled out.

11. There is another aspect of the case that also makes the case of the prosecution doubtful. Dr. Sulman M.O. (PW-6) deposed during his examination-in-chief that Zahoor-ul-Din and Zahid S.I. produced the dead body of one Zafar. Zahoor-ud-Din, Inspector (PW-5), the investigating officer, has stated that he handed over the dead body to Dil Murad 859/C (PW-4) for postmortem examination. Dr. Sulman M.O (PW-6) deposed during his examination-in-chief that as per police information, the death occurred at 01:45 pm on 21.10.2019. As per the postmortem examination report (Ex.PN), the probable time that elapsed between injury and death was immediately with a difference of 15-20 minutes. Death was on the spot. Dr. Sulman M.O (PW-6) deposed during examination-in-chief that: - "INFORMATION FURNISHED BY POLICE According to police papers, Quarrel happened due to land issue and deceased was shot with 12-bore rifle by accused and was dead at the spot." During the cross-examination, Dr. Sulman M.O (PW-6) deposed that:- "The dead body was brought by Inspector Zahoor-ul-Din and Zahid S.I.

Relevant documents was received to me at about 07:50 PM. I started post mortem examination at about 08:40 pm." On perusal of the postmortem report (Ex.PN), it reveals that the same was prepared on 23.10.2019, and the table relating to the receiving of the dead body and signed by the police official is left blank. It appears that to bring ocular account in line with the medical evidence, the prosecution tried to establish that for saving the life of Zafar (then injured), Hammad Zafar (PW-2)-the complainant was shifting his father to RHC Marrot, when he, on the way to RHC, lost his life. Whereas the documentary evidence belied the oral testimonies of the prosecution witnesses i.e. Hammad Zafar (PW-2), Muhammad Majeed (PW-3) and Zahoor-ud-Din, Inspector (PW-5)-the investigating officer. In addition, Muhammad Majeed (PW-3), the eye-witness, deposed that after the incident, he did not accompany Hammad Zafar (PW-2), the complainant, when he took his father to the hospital. Whereas, Zahoor-ul-Din, Inspector (PW-5)-the investigating officer has stated that he prepared the inquest report (Ex. PP) at RHC Marrot and in the column No.4 regarding the persons who identified the dead body, name of Muhammad Majeed (PW-3) is mentioned, who (PW-3) himself has stated that he was present at the place of occurrence. During the cross-examination, Muhammad Majeed (PW-3) deposed that: - "I am deposing in the court same as I got recorded my statement before the police. It is correct that in my statement under section 161 Cr.P.C. it has been mentioned that after sustaining the fire by the deceased I and witness Arshad came at the spot and attended the deceased." These grave infirmities destroy the credibility of witness evidence. If the evidence of these witnesses is rejected as untrustworthy, nothing survives the prosecution case. These are the material contradictions in the ocular and documentary evidence.

12. So far as the motive set up by the prosecution in the oral statement (Exh. PA) and FIR (Ex.PA/3) and deposed about it by Hammad Zafar (PW-2), the complainant, we have found it to have remained un-proved. The prosecution's case in this regard was vague and could hardly inspire confidence. Hammad Zafar (PW-2), the complainant, had deposed during cross-examination that: - "My father and his brothers have 1 square of land. I cannot tell the specific killa numbers in possession of my father and uncles separately.

Half square of the land has been partitioned among my father and his brother by family settlement. Rest of the land is not partitioned because same situates at different places in different chaks. I cannot tell the specific killa number of place of occurrence." Zahoor-ud-Din, Inspector (PW-5)-the investigating officer had deposed during cross-examination that: - "I did not obtain any proof about ownership of place of occurrence. I do not know whether the disputed property is joint one or not. However, during investigating it came into picture that there was land dispute." Regarding the motive for the crime, the prosecution did not produce any documentary evidence. The Investigating Officer also did not make any effort to collect any evidence that may have proved the motive of the crime attributed to the appellant. Therefore, we conclude that the prosecution did not prove beyond reasonable doubt the motive for the crime committed by the appellant set up before the trial court.

13. As regards the recovery of repeater P-5 on the disclosure and pointing of the appellant-Ali Akbar Zia and positive report of Punjab Forensic Science Agency, Lahore (Exh. PR) is concerned, it is a prosecution case that on 21.10.2019, Zahoor-ud-Din, Inspector (PW-5)-the investigating officer, collected one empty of Kartoos from the place of occurrence. The same was handed over to the Moharrar malkhana on the same day. Zahoor-ud-Din, Inspector (PW-5), investigating officer, arrested the appellant, Ali Akbar Zia, on 25.10.2019. Per the Punjab Forensic Science Agency Lahore (Ex.PR) report, a parcel of empty crime was received in the office on 28.10.2019. So, the crime empty was sent to Punjab Forensic Science Agency, Lahore, after the arrest of the appellant-Ali Akbar Zia, which creates doubt, and the prosecution story weakens. We are, therefore, of the view that the recovery of repeater P-5 and the positive report of Punjab Forensic Science Agency, Lahore (Exh. PR), are of no avail to the prosecution.

14. From the above-detailed discussion, we are convinced that the prosecution has failed to establish its case. The truth was seen buried under the debris, and a different story was structured, perhaps to lug the appellants into trial under the serious offense. It is often said "that the Fouler the crime, the higher the decree of proof." We have gone through the process of keen examination of the entire material and found compelling reasons, as stated above, to disagree with the conclusion recorded by the learned Additional Sessions Judge also found that the prosecution had miserably failed to prove the guilt of the accused/appellant beyond reasonable doubt. Per the dictates of the law, the benefit of every doubt will be extended in favor of the accused. In the case of "Muhammad Akram v. The State" (2009 SCMR 230), it is held as under: - "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 a circumstance created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of the doubt not as a matter of grace and concession but as a matter of right.".

15. We, therefore, accept in toto Criminal Appeal No.195 of 2020/BWP filed by the appellant, Ali Akbar Zia; as a result, whereof conviction and sentence recorded by the trial court vide judgment dated 12.03.2020 is set aside and the appellant-Ali Akbar Zia is acquitted of the charge in case FIR No.320 of 2019, dated 21.10.2019, registered under Sections 302, 34, 109 P.P.C., at P.S. Marrot, District Bahawalnagar. The appellant, Ali Akbar Zia, is ordered to be released forthwith if not required in any other case. Murder Reference No.08 of 2020, forwarded by the trial court for confirmation of the death sentence inflicted upon the convict Ali Akbar Zia, fails, which is answered in NEGNATIVE. JK/A-20/L Appeal allowed.