NASEER ABBAS Versus State
SADAQAT ALI KHAN, J.--- This single judgment shall dispose of Criminal Appeal No. 713 of 2015 filed by Naseer Abbas appellant (against his conviction) and M.R. No.138 of 2015 sent by the learned trial court for confirmation of death sentence of Naseer Abbas appellant or otherwise as both the above stated matters have arisen out of same judgment dated 9.4.2015 passed by learned Additional Sessions Judge, Bhalwal, according to which the appellant was convicted and sentenced as under:-
"(i) Naseer Abbas was convicted under section 302(b), P.P.C. as Tazir and sentenced to death along with compensation of Rs.2,00,000/- to the legal heirs of the deceased under section 544-A, Cr.P.C., which shall be recoverable from the convict as arrear of land revenue and in default thereof, to further undergo 6-months' SI." in case FIR No.118 dated 22.5.2012 under section 302, P.P.C. Police Station Maila, District Sargodha.
2. The facts of the case have been stated by Farrukh Shahzad complainant PW-8 (step-brother) the trial court, which is hereby reproduced for narration of the facts:-
"On 22.05.2012 at about 12.30 (mid night) my brother Zulfiqar Ali, Muhammad Mudassar, cousin Kazim Abbas son of Muhammad Ashraf, "Behnoi" Muhammad Ali son of Bashir Ahmad were present at Dara Abdul Aziz Dall for dinner. When accused Naseer Abbas now present in the court armed with pistol .30 bore came there and raised Lalkara that three days ago he was forbidden for aerial firing and made straight fire shot upon Zulfiqar Ali my brother, which hit him on embolic (Naff), second fire shot hit him above the embolic (Naff) and third fire hit at the back of left hand. Naseer Abbas accused again made a fire which Zulifiqar Ali on right flank. His next shot hit at the right buttock of Zulifiqar. Next shot hit at the center of the buttocks. Next shot hit at the upper part of his left leg. Upon listening the fire shots I reached at the spot. Accused Naseer Abbas fled away from the spot after brandishing his weapon. Occurrence was witnessed by me, Muhammad Mudassar, Muhammad Ali and Kazim Abbas. Zulifiqar Ali my brother died at the spot due to above said injuries.
Motive behind the occurrence is that 3 days ago accused Naseer Abbas had made aerial firing in front of our house upon which he was forbidden, which resulted in swear hot talk and due to this grudge Naseer Abbas accused committed this occurrence.
At the same night the police reached at the place of occurrence and recorded my statement Ex.P.E, which was read over to me and signed upon the same as token of its correctness."
3. After registration of the case, investigation started and on completion of the same report under section 173, Cr.P.C. was submitted in the trial court.
4. Learned trial court after observing legal formalities provided under the Criminal Procedure Code framed the charge on 31.7.2012 against the appellant under section 302, P.P.C. to which he pleaded not guilty and prosecution evidence was summoned.
5. Prosecution produced Dr. Muhammad Shoaib Shakker PW1, Muhammad Arshad PW2, Sohail Ahmad PW-3, Muhammad Hafeez Draftsman PW4, Ghulam Mustafa PW5, Mulazim Hussain Kazmi ASI PW6, Muhammad Ashraf ASI PW7, Farrukh Shahzad (complainant) PW8, Kazim Abbas PW9, Sikandar Hayat PW10, Ijaz Mumtaz PW11 and Khizar Hayat S.I PW12, whereas PWs namely Muhammad Ali, Muhammad Mudassar Ali, Sohail Bashir and Tariq Mehmood 821/C were given up by the prosecution being unnecessary and after tendering documentary evidence i.e. Ex.PA to Exh.PO closed the prosecution evidence.
6. Medical evidence has been furnished by Dr. Muhammad Shoaib Shakker PW 1, who conducted post-mortem examination on the dead body of Zulfiqar Ali deceased and observed as under:-
"Injuries:
1. A lacerated wound firearm entry wound 1 x 1 cm with inverted margins going deep in the interior abdominal wall on the right side of umbilicus, no blackening and a parching was present.
2. A lacerated wound of firearm entry wound 1-1/2 cm x 1 cm going deep into abdomen on right portion of anterior abdominal wall 2 cm above injury No. 1.
3. A lacerated fire arm exit wound size 2-1/2 x 1 cm with everted margin, going deep into the right flank 2 cm below right costal margin.
4. A lacerated fire arm entry wound 2 x 1 cm going deep into the left inguinal area near the rout of left side of penis.
5. A lacerated fire arm entry wound 1 x 1 cm inverted margins on the dorsum of the left hand with no burning and blackening.
6. A lacerated wound of fire arm (exit) 2-1/2 cm on the posterior of right abdomen going deep into the abdomen 11 cm on the back of injury No.3.
7. A lacerated fire arm wound 1 x 1 cm with everted margin on the middle of posterior portion of lower area of abdomen.
8. A lacerated firearm entry wound with inverted margins on the lower portion of right buttock 1 x 1/2 cm.
Opinion.
In my opinion, in this case injury Nos.1, 2, 3, 4, 5 and 6 causing damaged to the major and vital blood vassals (IVC, Aorta) of abdomen along with severe hepatic damage resulting in severe haemorrahagic shock and cardio-pulmonary arrest had resulted in death, which was sufficient to cause death in ordinary course of nature. All the injuries were ante-mortem and are by fire-arms. Time between injury and death was 10 to 15 minutes and that between death and post mortem was 8 hours."
7. On the other hand, statement of Naseer Abbas appellant was recorded under section 342, Cr.P.C., who refuted the allegations so leveled against him. The appellant did not opt to appear as witness under section 340(2), Cr.P.C., however, he produced Razzaq Ahmad 986/MHC as DW1 and also produced documents Exh.DA to Exh.DG in his defence and in reply to question "Why this case against you and why the PWs deposed against you?" Naseer Abbas appellant deposed as under:-
"All the PWs are closely related with each other and being relationship they deposed falsely against me."
8. After conclusion of the trial, learned trial court convicted the appellant with above said sentence. Hence this appeal.
9. Learned counsel for the appellant has contended that:-
(i) the judgment of the trial court dated 9.4.2015 is against law and facts on the file and is liable to be set aside.
(ii) that the prosecution has failed to prove its case against the appellant/convict as there are many major discrepancies in the statements of the PWs and the learned trial court has convicted the appellant on the basis of surmises and conjectures;
(iii) it is contended that the impugned judgment of the trial court is not maintainable in the eyes of law;
(iv) lastly submitted that instant appeal may be accepted and the judgment of the trial court dated 9.4.2015 may kindly be set aside and appellant/convict may be acquitted.
10. On the other hand, learned DPG assisted by learned counsel for the complainant has vehemently opposed the appeal and submitted that:-
(i) the prosecution has proved its case beyond any shadow of doubt against the appellant with solid evidence and prayed for the dismissal of the appeal.
11. We have heard the learned counsel for the appellant as well as learned DPG assisted by learned counsel for the complainant and perused the record.
12. The detail of prosecution case has already been given in paragraph 2 of this judgment, therefore, there is no need to repeat the same to avoid the duplication and repetition.
13. According to the FIR, occurrence took place in-between night of 21/22 May of 2012 at 12.30 a.m., whereas, FIR was registered on 22.5.2012 at 2.40 a.m. (night) on the statement of Farrukh Shahzad complainant PW8 (step brother of Zulfiqar Ali deceased), who was murdered in the Dera of Abdul Aziz Dal who did not come forward to support the prosecution story. Farrukh Shahzad complainant PW8 (step brother of Zulfiqar Ali deceased as stated by him in cross-examination) and his paternal cousin Kazim Abbas PW9 claim themselves to be the eye-witnesses of the occurrence. Farrukh Shahzad (Advocate) complainant PW8 stated in his statement (examination-in-chief) that on 22.5.2012 at about 12.30 (mid-night) his brother Zulfiqar Ali deceased, Muhammad Mudassar (not produced as witness), cousin Kazim Abbas PW9 and brother-in-law Muhammad Ali were present at Dara Abdul Aziz Dal for dinner, where Nasser Abbas appellant while armed with .30-bore pistol came there, raised lalkara that three days ago, he was forbidden for aerial firing and made straight fire shots upon Zulfiqar Ali deceased which hit him on different parts of his body (detail of which is mentioned in his statement). He further stated in his statement (examination-in-chief) that upon listening the fire shots, he reached at the spot. This witness (Farrukh Shahzad complainant PW8) stated in his cross-examination that his house is situated at a distance of 1-1/2-killa from the place of occurrence. He further stated in his cross-examination that he had come from Islamabad two days prior to the present occurrence. He further stated in his cross-examination that after the murder of Zulfiqar Ali deceased, his widow has filed a civil suit in respect of agricultural property against him and he has also filed a civil suit against her. The said civil suits are in respect of agricultural land owned by Zulfiqar Ali deceased, who was issueless. This witness (Farrukh Shahzad complainant PW8) further stated in his cross-examination that Dera of Abdul Aziz where occurrence took place is not owned by him, but it is common place being used by all the villagers. He further admitted in cross-examination that during investigation, he did not point it out to the IO that Dera of Abdul Aziz was a common/joint place for the use of all the villagers. He stated in volunteer portion that during investigation IO had not inquired about this fact.
Kazim Abbas PW9 stated in his statement (examination-in-chief) that on 22.5.2012 at about 12.30 midnight he along with Muhammad Ali, Muhammad Mudassar (not produced as witnesses) and Zulfiqar Ali deceased were sitting in the Dera of Abdul Aziz for dinner and saw the occurrence. He stated in his cross-examination that his house is situated at a distance of 1-1/2 km from the said Dera (place of occurrence). He further stated in his cross-examination that pots of the dinner were present there. He further stated in his cross-examination that the police did not take into possession the pots of dinner. He did not ask the police to take the said pots into possession. We have also perused the inquest report Exh.PC where it is not mentioned in columns Nos.22 and 23 that pots of the dinner were present at the place of occurrence near the dead body as stated by Kazim Abbas PW9. Both these eye-witnesses were chance witnesses but have failed to establish their presence at the time of occurrence at the place of occurrence with their stated reasons. Reliance is placed on case titled "Muhammad Rafique v. The State" (2014 SCMR 1698) in which August Supreme Court of Pakistan has observed at pages 1700 and 1701 as under:-
"After hearing the learned counsel for the parties and going through the record we have straightaway observed that the ocular account of the incident in issue had been furnished before the learned trial Court by two eye-witnesses namely Falak Sher complainant (PW-6) and Abdul Razzaq (PW-7) who were both related and chance witnesses. Falak Sher complainant (PW-6) was the father of Mukhtar Ahmed deceased and Abdul Razzaq (PW-7) was a brother-in-law of the said deceased. Both the said eye-witnesses had claimed that although they lived about one kilometer away from the scene of the crime yet they were present near the spot because they were working as labourers at a project regarding construction of the banks of Kanda Minor at the relevant time which project was being undertaken quite close to the place of occurrence. Before the learned trial Court the said eye-witnesses had utterly failed to establish the stated reason for their presence near the place of occurrence at the relevant time asmuch as they had failed to give any detail of the project in issue and they did not even know the name of the contractor who had hired them as labourers for the purpose. We have noticed that although in the rough site-plan of the place of occurrence prepared by the Investigating Officer an under construction project and the Kanda Minor had been shown near the place of occurrence yet in the formal site-plan of the place of occurrence prepared by a Patwari no such Kanda Minor or the under construction project were shown anywhere close to the place of occurrence. It is an admitted position that no blood-stained earth had been collected from the stated place of occurrence and also that the FIR had been lodged with a noticeable delay and post-mortem examination of the deadbody had also been conducted with significant delay in the following afternoon. All these factors had pointed towards a real possibility that the murder in issue had remained unwitnessed and time had been consumed by the local police in procuring and planting eye-witnesses and in cooking up a story for the prosecution. As if this were not enough the record of the case shows that the related and chance eye-witnesses produced by the prosecution had failed to receive any independent corroboration or support."
14. According to the FIR, occurrence took place between the night of 21/22 May of 2012 at 12.30-am in the dark hours of the night. The witnesses statedly identified the appellant in the light of the electric bulb, which was not taken into possession during the investigation as admitted by Khizar Hayat S.I PW12/I.O. of this case, so identification of the appellant is also not free from doubt. Reliance is placed on case titled 'Sardar Bibi and others v. Munir Ahmad and others 2017 SCMR 344 in which Hon'ble Supreme Court of Pakistan has observed at page 256 as under:-
"The source of light i.e. bulbs etc. was not taken into possession during investigation to establish that the witnesses who were allegedly at the distance of more than 100 feet could identify the assailants. So the identification of the assailants was also doubtful in such circumstances of the case."
15. Farrukh Shahzad complainant PW8 stated in his statement (examination-in-chief) regarding motive of the occurrence that three days prior to the present occurrence, Naseer Abbas appellant had made aerial firing in front of house of the complainant resulting hot talks. This witness (Farrukh Shahzad complainant PW8) stated in his cross-examination that at the time of occurrence of motive, he was not present. No criminal case was got registered against Naseer Abbas appellant in this respect. Kazim Abbas PW9 stated in his cross-examination that neither criminal case was registered nor any Punchayat was held regarding occurrence of motive. Both these witnesses have failed to produce any crime empty to the I.O. during investigation recovered from the place of occurrence of motive (aerial firing allegedly made by Naseer Abbas appellant in front of the house of Zulfiqar Ali deceased 3-days prior to the occurrence). In view of the above discussion, we are of the view that prosecution has failed to prove motive.
16. Khizar Hayat S.I PW12/I.O of this case stated in his statement (examination-in-chief) that on 28.5.2012, he arrested Naseer Abbas appellant, who on 3.6.2012 during interrogation disclosed and got recovered 30- bore pistol P4 (this witness has not stated that from which place pistol P4 was recovered), which was taken into possession vide recovery memo Exh.PK. Perusal of report of Punjab Forensic Science Agency, Lahore Exh.PD shows that crime empties received in the office on 30.5.2012 after the arrest of the appellant (28.5.2012). Considering this, possibility cannot be ruled out that crime empties have been manufactured before their dispatch to Punjab Forensic Science Agency, Lahore to obtain positive report. Hence, positive report of Punjab Forensic Science Agency, Lahore Exh.PD is not believable and the same is hereby discarded.
17. In view of the above discussion, we entertain serious doubt in our minds regarding participation of the appellant in the present case. It is settled principle of law that for giving benefit of doubt, it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in the prudent mind about the guilt of the accused, then he would be entitled to its benefit not as a matter of grace or concession, but as of right. Reliance is placed on case reported as "Muhammad Akram v. The State" (2009 SCMR 230), in which, Hon'ble Supreme Court of Pakistan has observed in para-13 of page 236 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 there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then he would be entitled to its benefit not as a matter of grace of concession, but as a matter of right."
18. For the foregoing reasons, this appeal is allowed. Conviction and sentence of Naseer Abbas appellant awarded by the Trial Court through impugned judgment are hereby set aside. Naseer Abbas appellant is acquitted of the charge. He is directed to be released forthwith if not required in any other case. Murder Reference is answered in NEGATIVE and death sentence of Naseer Abbas appellant is NOT CONFIRMED.
JK/N-2/L Appeal allowed.