2023 PLP 38 (YLRN)

MUHAMMAD TARIQ NADEEM, J.

Imran Gondal, appellant herein along with his co-accused Naseem Bibi (since acquitted), faced trial in case FIR No. 108 dated 27-05-2014 for offences, under sections 302/ 460/ 148/ 149, P.P.C. registered at Police Station Begowala, Tehsil Sambrial, District Sialkot for causing the death of Iftikahr Ahmad and after conclusion of trial, vide judgment dated 20-03-2017, the learned trial Court convicted and sentenced him as under:- Under section 302(b), P.P.C. Life imprisonment as Ta'zir along with compensation of Rs.2,00,000/- to the legal heirs of Iftikhar Ahmad, deceased, under section 544-A, Cr.P.C. and in default thereof to further undergo 06 months S.I. Benefit of section 382-B, Cr.P.C. was extended to the appellant. The Appellant has filed the titled appeal against his conviction and sentence, whereas a criminal revision has been preferred by Tanveer Ahmad Qamar, complainant of the said case for enhancement of sentence from life imprisonment to normal penalty of death to Imran Gondal, appellant. Since common questions of law and facts are involved, therefore, both these matters are being disposed of by means of this single judgment.

2. The brief facts of the case, as described in the FIR (Ex.PB/1) got lodged by Tanveer Ahmad Qamar, (PW.3) on his written application (Ex.PB) are that he was resident of Chak No.110 Janubi Aahli Rawan, District Sargodha; Iftikahr Ahmad was his brother-in-law, who was owner of land measuring 09/10 acre in Bagowala had leased out the same to Imran Gondal, appellant and Shah Muhammad Alias Shani (since PO) for the last two years. Iftikhar Ahmad taken back his land from Imran Gondal, etc. upon completion of lease period and himself started cultivation and for many times, accused Imran Gondal, demanded lease of the said land from him but he (deceased) refused because the lease money was not being paid by Imran Gondal etc. On 26-05-2014, the complainant (PW.3) along with his brother Qadeer Ahmad and one Imran Rasool came to Bagowala. Iftikhar Ahmad, received his passport from Sialkot and returned to his Dera at Begowala where Muhammad Imran, Shah Muhammad alias Shani along with their mother Mst. Naseem Bibi were also present and again demanded the land on lease. Upon refusal of Iftikhar Ahmad, they went away while extending life threats to him. Thereafter, complainant and PWs along with Iftikhar Ahmad went to his house in Begowala, where-after taking meals they started talking to each other. At about 10:00 p.m. (night) accused Shah Muhammad Alias Shani (since PO), Muhammad Imran and Mst. Naseem Bibi (since acquitted) came there and again started demanding the land on lease. He (PW.3) along with PWs Qadeer Ahmad and Imran Rasool seated on the cots placed on the roof of kitchen wherefrom they were looking and hearing Iftikhar Ahmad and accused persons. During conversation, accused suddenly flared up. At about 12:00 pm (night) accused Imran Gondal and Shah Muhammad alias Shani took out .30 bore pistols from their folds " ". Accused Naseem Bibi raised Lalkara to assemble there, upon which two unknown persons reached there. Accused Mst. Naseem Bibi, again raised Lalkara to teach a lesson to Iftikhar Ahmad for refusal of lease of the land to Imran Gondal etc. Upon the lalkara of Mst. Naseem Bibi, Muhammad Imran Gondal, appellant made a fire shot with his pistol .30 bore, which hit at the abdomen of Iftikhar Ahmad, Shah Muhammad alias Shani inflicted firearm injury at the calvaria of Iftihar Ahmad due to which, he fell on the ground. Naseem Bibi inflicted stick blows at the person of Iftikhar Ahmad. He (PW.3) along with PWs witnessed the occurrence and due to fear did not went near the accused persons. Accused Naseem Bibi again raised Lalkara to pick the dead body for throwing in Nala Daik as they did not want the grave of Iftikhar Ahmad (deceased) in village. Imran Gondal etc. picked up the dead body. PWs followed and requested them to hand over the dead body, however, accused warned them of the same consequences, if the complainant and PWs came close to them. The accused placed the dead body in "Chand Gari" and went to the road leading to Mouza Waien. "Chand Gari" was driven by one of the two unknown accused. Upon hue and cry of the complainant as well as PWs, the accused persons threw the dead body in the fields and fled away. The motive behind the occurrence was dispute of lease of land.

3. I have anxiously considered the arguments put forth by the learned counsel for the appellant as well as learned Deputy Prosecutor General for the State assisted by learned counsel for the complainant and scanned the record minutely.

4. It has been observed by this Court that the occurrence in this case, as per prosecution, took place on 27-05-2014 at about 12:00 a.m. (night), within the area of Begowala about 04 Kilometers from Police Station Begowala District Sialkot and the same was reported by Tanveer Ahmad Qamer, complainant (PW.3) through application (Ex.PB), recorded by Ghulam Ahmad, SI on the same day on the basis of which formal FIR (Ex.PB/1) was chalked out by Muhammad Akram, ASI (PW.8) at 06:00 a.m. with the delay of 6 hours. The matter could have been reported within no time as police station was only 4 K.M away but the PWs took almost 6 hours. No plausible explanation for the delay has been brought on record. Even while appearing before the learned trial Court the prosecution witnesses did not utter even a single word about the above said delay. Therefore, I hold that this delay in setting the machinery of law into motion speaks volume against the veracity of prosecution version. Reliance is placed on case law titled as "Altaf Hussain v. The State" (2019 SCMR 274).

5. It has been further noted that the postmortem examination on the dead body of deceased Iftikhar Ahmad was conducted on 27-05-2014 at about 04:45 p.m. with the delay of 16 hours and 45 minutes, an adverse inference to the prosecution's case can be drawn that the intervening period had been consumed in fabricating a story after preliminary investigation and to wait for the relatives of the deceased, who were made witnesses subsequently, otherwise there was no justification for not dispatching the dead body to the mortuary and providing police papers with such delay. Reliance in this regard is placed upon the cases titled as "Muhammad Adnan and another v. The State and others" (2021 SCMR 16) wherein the Hon'ble Supreme Court of Pakistan has held as under:- " .the matter was reported to police on the same night at 09:45 p.m. whereas the FIR was registered at 10:30 p.m., Surprisingly, post-mortem examination on the dead body of Muhammad Tayyab was conducted on 19-09-20018 at 6:30 a.m. Dr. Muhammad Sharif (PW6) who conducted autopsy stated in his cross-examination that at THQ, Hospital, Depalpur, the arrangements for conducting posts-mortem examination are available at night; that he was on duty in the hospital on that night; that his duty started from 8:00 p.m. on 18-09-2008 till 08.00 a.m. on 19-09-2008; that he received the police papers at 6.30 a.m. on 19.09.2008. There is no explanation on record why the autopsy on the dead body of Muhammad Tayyab was conducted with delay of more than nine hours." Wisdom is also derived from the judgments reported as "Muhammad Rafique alias Feeqa v. The State" (2019 SCMR 1068) and "Sufyan Nawaz and another v. The State and others (2020 SCMR 192).

6. The ocular account in this case has been furnished by Tanveer Ahmad Qamer, complainant (PW.3), Qadeer Ahmad (PW-4) and Ghulam Rasool (PW.5), who happened to be brother in law of the deceased. All the supra mentioned three PWs are residents of 110-Janoobi Aali Rawan Tehsil and District Sargodha, which is situated at a distance of 22-K.Ms away from the place of occurrence. The presence of above mentioned eye-witnesses at the spot at the relevant time was not natural. It was, therefore, mandatory for the said PWs to justify their presence at the place of occurrence at the relevant time through some cogent reasons. After scanning the ocular account, I have observed that Tanveer Ahmad Qamer (PW-3) stated in his cross-examination that Iftikhar Ahmad deceased was also resident of village Aali Rawan Tehsil and District Sargodha. The reasoning described by the supra mentioned PWs with respect to accompanying Iftikhar Ahmad deceased does not appeal to a prudent mind. Similarly the mode of occurrence narrated by the prosecution eye-witnesses is highly unbelievable. I have noted that according to prosecution story Tanveer Ahmad Qamer, complainant (PW.3) along with Qadeer Ahmad (PW-4) and Imran Rasool (PW-5) and Iftikhar Ahmad deceased went to Begowala. Thereafter, they went to Dera of deceased prior to reaching at Dera Imran Gondal appellant where he along with his co-accused was also present there, where above stated accused persons again demanded the land for cultivation from deceased Iftikhar Ahmad but he denied. Upon which, accused persons extended threats to kill him and went away. Thereafter they came to the house of deceased Iftikhar Ahmad situated in village Begowala and taken the meal, thereafter they started talking with each other. The supra mentioned PWs went on the roof of kitchen of the house and sat there on the cots in front of Iftikhar Ahmad deceased subsequently at 12.00 a.m. (night) the accused persons committed the occurrence. It is also a case of prosecution that after committing the murder of deceased the accused persons picked the dead body of Iftikhar Ahmad deceased and went outside the house, and PWs also followed them and due to fear, they did not went near the accused and beseeched the accused persons to hand over the dead body of deceased. Thereafter they boarded the deadbody in a Chand Gari (motorcycle rickshaw) and subsequently thrown the dead body in an adjacent field as during this episode, not a single independent witness of the vicinity allegedly witnessed the occurrence nor any persons from the vicinity was produced before the learned trial Court. Surprisingly the PWs had not raised any hue and cry to attract the people of vicinity and, if they had made hue and cry, even then none had attracted there. Even the Chand Gari was not recovered during the course of investigation nor any evidence was collected with respect to ownership of Chand Gari. Things do not stop here, Tanveer Ahmad Qamer (PW-3) has stated in his cross-examination that blood was oozing from the dead body and falling in the street, he identified said street to police. No blood was taken from the said street by the police. Qadeer Ahmad (PW-4) and Imran Rasool (PW-5) unanimously deposed that at the time of occurrence, the deceased was sitting on one cot whereas the accused were sitting on another cot. Qadeer Ahmad (PW-4), subsequently changed his stance and deposed that deceased sustained firearm injury in standing position. Qadeer Ahmad (PW-4) admittedly came to Begowala after two years whereas Imran Rasool (PW-5) came to Begowala after 10/12 years. I have also observed that witnesses of ocular account Tanveer Ahmad Qamer complainant (PW-3), Qadeer Ahmad (PW-4) and Imran Rasool (PW-5) are not witnesses of inquest report (Exh.PP) and postmortem report (Exh.PL) of the deceased. Had they been present at the time and place of occurrence, they must have been the witnesses of inquest reports. Similarly, they should have escorted the dead body to the hospital being the close relatives and their names should have been mentioned in the post mortem report in the column of identification of the dead body. It is further noteworthy that conduct of the above mentioned eye-witnesses is highly unnatural as they did not make a noise at the time of occurrence. They allowed the appellant and other co-accused (since acquitted) to shift the dead body in a rickshaw and they were kept on standing as silent spectators. Similarly, when the accused persons were taking the dead towards Nala Daik, why the PWs not make alarm and informed the neighbourers. This fact makes their presence at the spot highly doubtful. The alleged prosecution eye-witnesses are chance witnesses and as such their evidence is not free from doubt. All these facts indicate that prosecution witnesses were in fact not present at the place of occurrence, hence they are not trustworthy. All the op-cit PWs are interested and not truthful witnesses. They are not trustworthy and reliable, therefore, I discard their evidence. Reliance is placed upon the following case laws titled as "Abdul Jabbar alias Jabri v. The State" (2017 SCMR 1155), "Nadeem alias Kala v. The State and others" (2018 SCMR 153), "Mst. Mir Zalai v. Ghazi Khan and others" (2020 SCMR 319) and "Liaqat Ali and another v. The State and others" (2021 SCMR 780).

7. I have also noted that there is a direct conflict between the ocular and medical account because there was a blackening around the injuries of Iftikhar Ahmad deceased whereas according to site plan (Exh.PM) fire shots were made at the body of Iftikhar Ahmad deceased from the distance of 5 feet. According to renowned author, Parikh's text book of medical jurisprudence and toxicology, if an injury from pistol shot is made within a distance of two feet, the blackening will occur otherwise not. Also in Modi's Medical Jurisprudence and Toxicology (21sth Edition at Page 227 it has been stated that "Blackening is found, if a fire-arm like shot-gun is discharged from a distance of not more than 3 feet and a revolver or pistol discharged within about 2 feet. I fortify my view from the dictum laid down in case titled as "Barkat Ali v. Muhammad Asif and others" (2007 SCMR 1812) wherein, the Hon'ble Supreme Court of Pakistan has held as under:- " It is a settled law that blackening appears on the dead body in case the deceased received injuries at a distance of 4 feet according to medical jurisprudence by Modi. It is a settled law that oral evidence cannot be accepted to the extent of its inconsistency with medical evidence. See Mardan Ali's case 1980 SCMR 889, Bagh Ali's case 1983 SCMR 1292. Dain Dad's case 1972 SCMR 74 and Zardshad's case 1969 SCMR 644 " Last but not the least, the Hon'ble Supreme Court of Pakistan has also expressed almost similar view in the case of "Amin Ali and another v. The State" (2011 SCMR 323) wherein the august Supreme Court of Pakistan in Paragraph No.11 of its judgment has held as under:- "

11. All the three witnesses deposed that the deceased had received three injuries, but the Medical Officer found six injuries on the person of the deceased. One of them had blackening. None of the witnesses deposed that any of the appellants had caused the injuries from a close range but on the contrary in the site plan the place of firing has been shown 8 feet away from the deceased. Thus from such a distance injury with blackening cannot be caused as it can be caused from a distance of less than 3 feet as per Modi's Medical Jurisprudence. The Medical Officer did not show as to which of the injury was entry or exit wound on the person of the deceased. The medical officer stated that metallic projectile was recovered from wound No.1/B which was an exit wound. If it was an exit wound then the metallic projectile would have been out of the body. The presence of metallic projectile in the body clearly establishes the fact that it is not an exit would but an entry wound. The medical officer has not shown that any of the injuries had inverted or averted margins so as to ascertain as to which of the injuries is entry or exit wound. Thus on this count there is a conflict between the medical and oral evidence. Furthermore, according to Medical Officer, the P.W.15 had four injuries out of them two were entry and two were exit wounds but the P.Ws. 13 and 14 deposed that the injured had received three injuries. Thus the P.Ws have shown one exit wound as entry wound. With regard to the injured Tanveer Hussain, the Medical Officer showed two injuries one entry wound on the chest and one exit wound on the back but all the three eye-witnesses deposed that P.W.14 had received two injuries on his chest. As regards injuries on the person of Mst. Maqbool Bibi. The Medical Officer found one entry wound on her back with blackening, whereas P.Ws. 13, 14 and 15 deposed that the fire shot was fired from the roof of the shop. Entry wound with blackening marks cannot be caused from such a long distance. From the above position it is manifest that the ocular testimony is in conflict with the medical evidence. Thus the deceased and injured did not receive the injuries in the manner, as alleged by the prosecution".

8. Another important aspect of the case is that according to the prosecution story, occurrence took place in the house of deceased in dark night and no source of light has been described by the prosecution. It is also pertinent to mention here that the Investigating Officer has not taken into possession any source of light, so as to prove that sufficient light was present at the time and place of occurrence for the witnesses to make a positive identity of the assailants. This fact has created further dent in the prosecution case. Reliance is placed upon the case laws titled as 'Nazeer Ahmad v. Gehne Khan and others' (2011 SCMR 1473 ) and "Gulfam and another v. The State" (2017 SCMR 1189).

9. After scanning the record, it transpires that co-accused of the appellant namely Naseem Bibi who allegedly caused sota blow at the body of deceased Iftikhar Ahmad, has been acquitted of the charge by the learned trial Court on the same set of evidence. It is apprised by the learned Deputy Prosecutor General that no appeal against the acquittal of supra-mentioned co-accused has been filed by the complainant or the State. It is a trite principle of law and justice that once prosecution witnesses are disbelieved with respect to a co-accused then, they cannot be relied upon with regard to the other co-accused unless they are supported by corroboratory evidence coming from independent source and shall be unimpeachable in nature but that is not available in the present case. Reliance is placed upon the cases titled as "Shahbaz v. The State" (2016 SCMR 1763), "Nazir Ahmad v. The State" (2018 SCMR 787) "Haroon Shafique v. The State and others" (2018 SCMR 2118), "Munir Ahmad and another v. The State and others" (2019 SCMR 79) and "Safdar Abbas and others v. The State and others" (2020 SCMR 219).

10. The alleged recovery of the weapon of offence from the appellant's custody has rightly been ruled out of consideration by the learned trial Court as report of Forensic Science Laboratory (Ex.PX) regarding matching of crime empty with 30 caliber pistol got recovered by the appellant has been produced by the prosecution at the trial and the report is only to the extent of its mechanical operating condition. In the absence of any wedding report it cannot be held that it was the same weapon which was used by the appellant during the occurrence. Guidance is sought from case law titled as "Sardar Bibi and another v. Munir Ahmed and others" (2017 SCMR 344).

11. So far as the motive is concerned, according to the prosecution case complainant's party has suspicion that Shahid Abbas (deceased) had illicit liaison with Anila Riaz (deceased) but no credible evidence has been led that the accused have committed the murder of Mst. Anila Riaz and Shahid Abbas due to their relationship. The learned Trial Court has disbelieved the motive part of the judgment. The law is settled by now that if the prosecution asserts a motive but fails to prove the same, then such failure on the part of the prosecution may react against a sentence of death on the charge of murder and reliance in this regard can be placed upon the cases reported by the Hon'ble Supreme Court of Pakistan titled as "Noor Muhammad v. The State and another" (2010 SCMR 97), "Sardar Bibi and another v. Munir Ahmed and others" (2017 SCMR 344), "Manzoor Ahmed Shah and others v. The State and others" (2019 SCMR 2000), "Muhammad Ilyas and another v. Ameer Ali and another" (2020 SCMR 305), "Liaqat Ali and another v. The State and others" (2021 SCMR 780) and "Khalid Mehmood and others v. The State and others" (2021 SCMR 810).

12. As a sequel of above comprehensive discussion, I have come to a definite conclusion that the prosecution has failed to prove the guilt of the appellant beyond the shadow of doubt. It is firmly settled by the Hon'ble Supreme Court of Pakistan that many circumstances creating doubt in the prosecution story are not required rather a single circumstance creating doubt is enough to acquit the accused. The Hon'ble Supreme Court of Pakistan in the case of "Muhammad Akram v. The State" (2009 SCMR 230), the Hon'ble Supreme Court of Pakistan, at para No.13, was pleased to observe as under-- "13....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." Similar view was taken in the cases of "Muhammad Adnan and another v. The State and others" (2021 SCMR 16), "Ghulam Abbas and another v. The State and another" (2021 SCMR 23) and "Zulfiqar Ali v. The State" (2021 SCMR 1373).

13. Resume of the above discussion is that the prosecution has failed to prove the case against the appellant beyond any reasonable doubt. Resultantly for the reasons recorded above, Criminal Appeal No.55479-J of 2017 is hereby accepted, impugned judgment against the appellant Imran Gondal is set aside and he is acquitted of the charge by extending benefit of doubt in his favour. He shall be released from the jail forthwith, if not required to be detained in connection with any other case.

14. As a natural corollary, criminal revision filed by Tanveer Ahmad Qamar, complainant for enhancement of sentence from life imprisonment to normal penalty of death is dismissed. JK/I-27/L Appeal accepted.