QAISAR ABBAS Versus State

SADAQAT ALI KIIAN, J.--- Appellant Qaisar Abbas has been tried by learned trial Court in case FIR No.190 dated 13.04.2014 offence under section 302, P.P.C. (initially FIR was lodged in offence under section 324, P.P.C.) Police Station Mitroo, District Vehari and was convicted and sentenced vide judgment dated 10.02.2017 as under:-

Qaisar Abbas (appellant)

Under section 302(b), P.P.C. Sentenced to death as Tazir for committing qatl-i-amd of Mumtaz (deceased) with compensation of Rs.2,00,000/- payable to the legal heirs of deceased under section 544-A, Cr.P.C. and in default whereof to undergo further simple imprisonment for 6 months.

2. Appellant has filed criminal appeal against his conviction and learned trial Court has sent Murder Reference for confirmation of his death sentence or otherwise, which are being decided through this single judgment.

3. Brief facts of the case have been stated by complainant Muhammad Ishaq (PW.8) in his statement before the learned trial Court, which is hereby reproduced as under for narration of the facts:-

States that on 10.04.14, at 8 a.m, I along with Mushtaq and Rehan-Ud-Din were sitting in the office. Accused Qaisar Abbas has been working on the brick kiln four months prior to the occurrence. At 10 a.m, Qaisar Abbas told Mumtaz that he would not speak to him. Then accused went home. Accused came back at 8 p.m and extended threats to Mumtaz that he (accused) had come to kill him. I, Mumtaz, Rchan-Ud-Din and Mushtaq were watching television. Accused made fire which hit on the right abdominal flank. The bulb was on. We tried to catch Qaisar Abbas who fled away. We attended Mumtaz, put him in the Ricksha and shifted him to RHC Garha Mor, from where he was shifted to DHQ, hospital, Vehari. After that Mumtaz was referred to Nishtar hospital, Multan where he was treated. The accused Qaisar Abbas had fired with .30 bore pistol. At Chak No. 100/WB, at about 6/7 a.m, the police officer met me and I preferred application Ex. PL to him which contains my thumb impression. The I.O. collected blood stained earth from the place of occurrence. The I.O went to Multan and recorded the statement of Mumtaz. On Wednesday, Mumtaz died. Idrees informed the police, about the death of Mumtaz.

4. After hearing learned counsel for the parties, learned DDPP and on perusal of record with their able assistance, we have observed as under:- i) Muhammad Mumtaz sustained firearm injury on his person on 10.04.2014 at 8:00 p.m. in his office of bricks kiln situated at Chak No.114/WB (succumbed to the injury on 16.04.2014), FIR was lodged on 13.04.2014 at 6:00 a.m. on the written application Ex.P.C of his brother Muhammad Ishaq complainant P.W.8 who and Muhammad Mushtaq P.W.9 claim themselves to be the eye-witnesses of the occurrence. ii) FIR was lodged on 13.04.2014 at 6:00 a.m. with the delay of about three days from the time of occurrence i.e. on 10.04.2014 at 10:00 a.m. Absolutely no explanation qua this delay has been given in the FIR. It is mentioned in the FIR that after the occurrence, Muhammad Mumtaz deceased (the then injured) was taken to Gara Mor Hospital, from where he was taken to DHQ Hospital Vehari, then he was referred to Nishtar Hospital, Multan. Prosecution neither produced any referrer form nor para-medical staff or medical officer of Gara Mor Hospital fromwhere Muhammad Mumtaz deceased (the then injured) was referred to DHQ Hospital Vehari. Further MLC Ex.P.H of DHQ Hospital, Vehari pertaining to Muhammad Mumtaz deceased the (the then injured) shows that he was got medically examined by Ghulam Muhammad constable P.W.3 on 10.04.2014 at 10:30 p.m. and was discharged at 11:00 p.m. on the same night but he (Ghulam Muhammad constable P.W.3 did not say so in his statement before the learned trial Court). Muhammad Amin S.I. PW.10 stated in his statement before the learned trial Court that on 10.04.2014 he received information through phone that Muhammad Mumtaz deceased (the then injured) sustained firearm injury and was shifted to hospital, he reached RHC Gara Mor where he was present, he prepared his injury statement Ex.P.J for his medical examination through Ghulam Muhammad constable P.W.3. This witness has not stated that Muhammad Ishaq complainant P.W.8 and Muhammad Mushtaq P.W.9 were at that time with Muhammad Mumtaz deceased (the then injured) at RHC Gara Mor. Had these two eye-witnesses been present with Muhammad Mumtaz deceased (the then injured) at RHC Gara Mor, their statements would have been recorded for registration of FIR. Injury statement Ex.P.J also shows that same was addressed to the medical officer RHC Gara Mor and not DHQ Hospital Vehari. Muhammad Mumtaz deceased (the then injured) has not been medically examined by the medical officer of RHC Gara Mor with the reasons best known to the prosecution. Despite claimed presence of Muhammad Amin S.I. P.W.10 with Muhammad Mumtaz deceased (the then injured) at RHC Gara Mor as stated by him and shown through injury statement Ex.P.J, FIR has not been lodged, meaning thereby that accused was unknown at that time which was lodged with the delay of about three days. In these circumstances, possibility of consultation and deliberation in lodging of FIR involving the appellant in this case and preparing the eye-witnesses cannot be ruled out. It was an unseen occurrence. Both the eye-witnesses despite their claimed presence with Muhammad Mumtaz deceased (the then injured) had not got recorded their statements before the police i.e. Muhammad Amin S.I. P.W.10 for three days, remained mum and did not disclose the name of the appellant as an accused of this case which is unnatural conduct and shatters their credibility. (2018 SCMR 153) "Nadeem alias Kala v. The State and others". iii) Coming to the dying declaration of Muhammad Mumtaz deceased (the then injured), Muhammad Amin S.I. P.W.10 stated in his statement that on 15.04.2014 (which is 5th day of occurrence i.e. 10.04.2014) he went to Nishtar Hospital, Multan to record statement of Muhammad Mumtaz deceased (the then injured). He submitted his application Ex.P.R to M.S. Nishtar Hospital, Multan for permission to record statement of Muhammad Mumtaz deceased (the then injured) which was granted in due course. He recorded statement of Muhammad Mumtaz deceased (the then injured) in the hospital stating therein that the appellant caused firearm injury on his person. Muhammad Amin S.I. P.W.10 is the person who on 10.04.2014 had examined Muhammad Mumtaz deceased (the then injured) in RHC Gara Mor and prepared his injury statement Ex.P.J. wherein did not state that on 10.04.2014 he was either conscious or unconscious. He did not try to record his statement at that time. His application for obtaining permission from the medical officer to record statement of Muhammad Mumtaz deceased (the then injured) Ex.P.R. does not show the name of the accused rather relevant column is left blank. Dr. Javaid Hussain Bhatti had made endorsement at the bottom of the said application Ex.P.R. as under:-

Urdu but did not mention whether Muhammad Mumtaz deceased (the then injured) was able to make statement or not as his MLC Ex.P.H shows that on 10.04.2014, he was semi-conscious. Neither Dr. Javaili Hussain Bhatti nor Addl. M.S. Nishtar Hospital, Multan has been produced in support of their endorsements made at the bottom of said application. In these circumstances, story of dying declaration along with application for permission to record statement of Muhammad Mumtaz deceased (the then injured) Ex.P.R. is result of fabrication which cannot be relied upon. Dying declaration is a weaker type of evidence than evidence which can be subject to cross-examination, it is an exception to the hearsay rule, thus, the same is to be scrutinized with due care and caution. It is settled law that dying declaration is like statement of interested witness requiring corroboration which is conspicuously missing in the present case. Reliance is placed on the cases titled "Farman Ahmed v. Muhammad Inayat and others" (2007 SCMR 1825), "Tahir Khan v. The State" (2011 SCMR 646) and "Muhammad Ameer and another v. Riyat Khan and others" (2016 SCMR 1233). iv) The story of motive that on the day of occurrence i.e. 10.04.2014 at 10:00 a.m. the appellant and the deceased had a quarrel, considering the peculiar circumstances of this case, is also not believable.

Recovery of pistol. 30-bore on pointing out of the appellant in presence of negative report of PFSA Ex.P.U. is not only inconsequential rather draws adverse inference.

5. In view of the above discussion, we entertain serious doubt in our minds regarding participation of 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.

6. For the foregoing reasons, instant criminal appeal is allowed, conviction and sentences of Qaisar Abbas appellant awarded by learned trial Court through impugned judgment are hereby set-aside, he is acquitted of the charges. He is directed to be released forthwith, if not required in any other case. Murder Reference is answered in NEGATIVE and death sentence of Qaisar Abbas (appellant) is NOT CONFIRMED.

JK/Q-6/L Appeal allowed.