ZAHID RIAZ (RAZA) Versus State
ORDER
SADAQAT ALI KHAN, J.--- The instant appeal has been filed by the appellants Nasir Mehmood and Arif Mehmood along with their co-convicts Zahid Riaz (Raza) (whose appeal had been consigned to record vide order dated 02.11.2015 due to his absence) and Abid Mehmood (whose appeal had also been consigned to record vide order dated 05.12.2016 due to his absence; against their convictions and sentences awarded by the learned Addl. Sessions Judge, Sahiwal, vide judgment dated 08.05.2008 whereby they were convicted and sentenced as under:--
Under Section 302-B, P.P.C.
They were convicted and sentenced to imprisonment for life each and fine of Rs.50,000/- each to be paid by them to the legal heirs of deceased and in default thereof to further undergo 6-months S.I. each
Under sections 394/395/306/397 and 412, P.P.C.
They were convicted and sentenced to 10-years' R.I. each along with fine of Rs. 10,000/- each in each offence and in default thereof to further undergo for 1-month S.I. each in each offence.
Sentences of convicts/appellants were ordered to be run concurrently with benefit of section 382-B, Cr.P.C. in case FIR No.375 dated 08.08.2004 in offences under sections 394/397, P.P.C. later on added offences under sections 396/397/302/412, P.P.C. Police Station Dera Raheem, Sahiwal.
2. The facts of the case as per statement Exh.PB/1 made by Muhammad Imtiaz (deceased) in injured, condition, before Sarfraz Hussain Inspector PW-10 is hereby reproduced for narration of the facts:--
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. Learned trial Court after observing legal formalities provided under the Criminal Procedure Code framed the charge against appellants and their co-convicts (since P.Os.) mentioned above to which they pleaded not guilty and prosecution evidence was summoned. The prosecution produced 11-PWs; two CWs and certain documents i.e. Exh.PA to Exh.PW. Medical evidence was furnished by Dr. Shaukat Ali PW-5, who conducted post-mortem examination on the dead body of Muhammad Imtiaz deceased. Dr. Farukh Ullah Muzammil PW-6 and Dr. Riaz Ghani PW-7 medically examined Muhammad Imtiaz (deceased) the then injured.
4. On the other hand, statements of appellants and their co-convicts (since P.Os.) mentioned above were recorded under Section 342, Cr.P.C. in which they refuted the allegations levelled against them by the prosecution. Appellants, neither opted to appear as witness under section 340(2), Cr.P.C. nor produced any evidence in their defence.
5. After conclusion of the trial, learned trial Court convicted the appellants and their co-convicts (since P.Os) mentioned above with above stated sentences. Hence this appeal.
6. I have heard the learned counsel for the parties as well as learned DPG and perused the record.
7. According to the prosecution story, occurrence took place in between night of 7/8 August, 2004 at 12.00 midnight on the road in the area Chak No. 128/9L. Initially FIR Exh.PB was registered on the statement Exh.PB-1 made by Muhammad Imtiaz (deceased) the then injured, before Sarfraz Hussain Gillani Inspector PW-10 who stated in his statement (examination-in-chief) that on 08.08.2004 after getting information, he reached the place of occurrence, where Muhammad Imtiaz (deceased) the then injured, was lying, who made statement Exh.PB/1) before him which was reduced into writing and sent the same for registration of FIR. Sarfraz Hussain Gillani, Inspector PW-10 stated in his cross-examination that he cannot tell that the aforementioned informant failed to disclose him the name, parentage permanent residence of the injured lying at place of occurrence because at that time, the said injured PW was Unconscious. He (Sarfraz Hussain Gillani Inspector PW-10) admitted in his cross-examination that the injured Imitaz Ahmad (Muhammad Imtiaz) from 12.00 midnight till 7.15 a.m. on 08.08.2004 remained Unattended. He (Sarfraz Hussain Gillani Inspector PW-10) admitted in his cross-examination that he had not given any certificate or mentioned the condition of the aforementioned injured in Exh.PB/2 (his endorsement) that he was conscious or found him capable to speak. Perusal of endorsement made by him (Sarfraz Hussain Inspector PW-10) at the bottom of statement (Exh.PB/1) of Muhammad Imtiaz, (deceased) the then injured shows that same was written on 08th of August, 2004 at 7.15 am with an unexplained delay of about 7-hours from the time of occurrence (12.00 midnight of 07/08th of August, 2004).
8. Dr. Riaz Ghani, PW-7 conducted medical examination of Muhammad Imtiaz (deceased) the then injured on 08.08.2004 at 8.15 am and observed following injuries on his person:--
INJURIES:
1. Fire-arm entry wound 1/2 c.m. x 1/2 c.m. with blackening and inverted margins deep going-just below the angle of right mendable.
2. Fire-arm exit wound 2 c.m. x 1.5 c.m deep going with everted margins lust below the left side of chin.
3. Fire-arm entry wound 3/4 x 3/4 c.m. deep going with blackening, inverted margins on the front upper left chest 7 cm lateral to left nipple.
4. Fire-arm exit wound 3/4 x 3/4 c.m. deep going with everted margins on front, upper, right chest, just lateral to right nipple.
5. Fire-arm entry wound 1 c.m. x 1 c.m. deep going with blackening inverted margins, on front, upper left abdomen close to costal margins.
6. Fire-arm entry wound 1 c.m. x 1 c.m. deep going with blackening inverted margins on uuter upper-part of theft thigh.
Injury No.1 is just below the angle of right mandible. Injury No.3 is on the front upper, left chest 7 c.m. lateral to left nipple and Injury No.5 is on front upper left abdomen.
9. Dr. Farrakh-Ullah-Muzammil, PW-6 stated in his statement (examination-in-chief) that there were multiple perforations in distal jejunum and proximal ileum. Resection and anastomosis of jejunum and ileum done. Whole of abdominal vesceras visualized and found normal, whole of abdomen cavity washed with 4-liters of normal saline. Abdomen clashed with interrupted proline No.1 sutures. The injured expired on 21.08.2004. Dr.Shaukat Ali, PW-5 on 22.08.2004, conducted post-mortem examination on the dead body of Muhammad Imtiaz deceased. Dr.Riaz Ghani, PW-7 stated in his statement (examination-in-chief) that blood pressure was 80/60, pulse was 110. The patient was conscious but in condition of shock. The said witness (Dr.Riaz Ghani PW-7) has not stated in his statement (examination-in-chief) that he was able to speak. Considering the peculiar circumstances of this case, Injuries on the person of Muhammad Imtiaz (deceased) the then injured and their nature, I am of the view that he was neither able to make statement nor made statement (Exh.PB/1) before Sarfraz Hussain Gillani Inspector PW-10, which is result of fabrication. Reliance is placed on case titled "Muhammad Ameer and another v. Riyat Khan and others" (2016 SCMR 1233). The law is settled by now that dying declaration like statement of interested witness requires close scrutiny, being week type of evidence needs corroboration which is conspicuously missing in the present case. Reliance is placed on cases titled "Farman Ahmed v. Muhammad Inayat and others" (2007 SCMR 1825) and "Tahir Khan v. The State" (2011 SCMR 646).
10. First Information Report shows that occurrence took place in between night of 7/8th of August 2004 at 12.00 midnight wherein no source of light has been mentioned, Identity of the appellants is also not free from doubt.
11. It is important to note here that according to the statement Exh.PB/1 made by Muhammad Imtiaz deceased, the then injured, Muhammad Rafique and Zahoor Ahmad, were the eye-witnesses of the occurrence who while appearing before the trial Court as CW-1 and CW-2 did not support the statement Exh.PB/1 of Muhammad Imtiaz deceased, the then injured. No other private witness came forward support of the prosecution story.
12 Muhammad Afzal S.I. PW-8 stated in his statement (examination-in-Chief) that on 27.08.2004, he arrested Zahid Raza, Abid Mehmood convicts (since P.Os), Mehmood and Asif Mehmood appellants, and during the personal search of Nasir Mehmood appellant, Pistol .30-bore P7 was recovered. Similarly, on personal search of Asif Mehmood appellant, pistol .30-bore P9 was recovered. Report of FSL Exh.PV shows that, crime empties collected from the place of occurrence received in the office on 06.10.2004 after the arrest of the appellants and recovery of pistols .30-bore P7 and P9 discussed above. Considering this, possibility cannot be ruled out that crime empties have been manufactured before their dispatch to the office of Forensic Science Laboratory to obtain positive report, hence positive report of Forensic Science Laboratory Exh.PV regarding matching of crime empties is not believable which is hereby discarded.
13. Learned DPG submits that car in question has neither been produced during trial nor was marked with an exhibit number which lost its evidentiary value. Muhammad Afzal S.I. PW-8 stated in his statement (examination-in-chief) that on 10.09.2004 Nasir Mehmood appellant during interrogation disclosed and got recovered number plate of the car and cheque Book P-13/1-2 and P-14 but did not disclose the place of recovery. Hence this recovery is not believable. Muhammad Afzal S.I. PW-8 further stated in his statement (examination-in-chief) that on personal search of Asif Mehmood appellant, he produced his I.D. card P-17, driving, licence P-18, one purse P. 19 which are inconsequential in the present case being not incriminating evidence. Muhammad Afzal S.I. PW-8 stated in his statement (examination-in-chief) that on 27.08.2004 Nasir Mehmood appellant produced I.D Card P-21 and Rs.130 which too are inconsequential in the present case.
14. In view of the above discussion, I entertain serious doubt in my mind regarding participation of the appellants 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).
15. For the foregoing reasons; this appeal to the extent of Nasir Mehmood and Asif Mehmood appellants is allowed, convictions and sentences of Nasir Mehmood and Asif Mehmood appellants awarded by the Trial Court through impugned judgment are hereby set aside and they are acquitted of the charges. They are present on bail, their bail bonds stand discharged.
16. Before parting with this judgment, it is observed that Zahid Riaz (Raza) and Abid Mehmood co-convicts of the appellants are still P.Os., their appeal shall be decided on its own merits without being influenced from this judgment on their arrest.
SA/Z-17/L Appeal allowed.