IFTIKHAR AHMAD Versus State
MALIK SHAHZAD AHMAD KHAN, J.--- Iftikhar Ahmad alias Meena, petitioner along with Gulzar Ahmed, Farzand Ali, Afzaal Ahmed, Naveed, Yasir Mahmood alias Jagga, Usman, Bashir Ahmed and Khalid Hussain (co-accused since acquitted), was tried by the learned Additional Sessions Judge, Sarai Alamgir, pursuant to a case FIR No.127/2012, dated 13.07.2012, under sections 302, 148, 149, 109, 427 P.P.C., registered at Police Station Bolani Sarai Alamgir, District Gujrat. The learned Trial Court vide its judgment dated 30.01.2014, convicted the petitioner under Section 302(b) P.P.C. and sentenced him to death as Taz ir. He was also directed to pay compensation amounting to Rs.1,00,000/- to the legal heirs of the deceased as envisaged under section 544-A Cr.P.C. or in default whereof to further undergo simple imprisonment for six months. However, vide the same judgment the learned trial Court acquitted Gulzar Ahmed, Farzand Ali, Afzaal Ahmed, Naveed, Yasir Mahmood alias Jagga, Usman, Bashir Ahmed and Khalid Hussain (co-accused). In appeal, the learned High Court while maintaining the conviction of the petitioner under Section 302(b) P.P.C., altered the sentence of death into imprisonment for life. The amount of compensation and the sentence in default thereof were maintained. Benefit of Section 382-B Cr.P.C. was also extended in favour of the petitioner.
2. Arguments heard. Record perused.
3. As per contents of the FIR, on 13.07.2012, at about 3.30 p.m, Ali Akbar complainant (PW-6), along with his brother Ali Asghar (deceased), nephew Zohaib Asghar (PW-7) and father Muhammad Sadiq (PW since given up), came to village Mandi Bhattian to offer funeral prayer of one Fazal Karim and after offering the said funeral prayer, they proceeded back towards their home. Ali Asghar (deceased), was riding on a motorcycle, whereas Ali Akbar complainant (PW-6), Zohaib Asghar (PW-7) and Muhammad Sadiq (PW since given up), were going to their village by foot. In the meanwhile, Iftikhar Ahmad alias Meena (petitioner), along with Gulzar Ahmed, Farzand Ali, Afzaal Ahmed, Naveed, Yasir Mahmood alias Jagga, Usman and Khalid Hussain (co-accused since acquitted), who all were armed with 30-bore pistols emerged at the spot and committed the murder of Ali Asghar (deceased), by making fire shots on his body. The complainant further alleged that the motive behind the occurrence was that earlier, his son namely Aamir Mehmood had injured Iftikhar Ahmad alias Meena (petitioner), by making fire shots, therefore, due to the said grudge, the occurrence of this case was committed by the petitioner and his co-accused. It was further alleged in the FIR that the occurrence of the instant case was committed with the abetment of Manzoor (co-accused since died before the commencement of trial) and Bashir Ahmed (co-accused since acquitted).
4. The Investigating Officer found some of the accused as not involved in the commission of offence and submitted report under section 173 Cr.P.C accordingly. The complainant being dis-satisfied with the police investigation filed a private complaint. The accused persons mentioned in the private complaint (total 09-accused), were summoned by the learned trial Court to face the trial.
5. At the very outset, we have noted that for the single deceased of this case, the complainant party implicated total ten (10) accused persons in this case (eight accused with the allegation that they were present at the spot at the relevant time and participated in the occurrence, whereas two accused were implicated with the allegation of abetment). It shows that a wider-net was used by the complainant party against different innocent persons. Most of the accused were declared innocent during the police investigation and all the remaining accused except the petitioner have also been acquitted by the Court.
6. We have also noted that the motive was disbelieved by the learned High Court because the son of the complainant namely Aamir Mehmood was the best witness to prove the abovementioned alleged motive but he was not produced in the witness box. No other tangible evidence was produced to prove the alleged motive, hence the same was rightly disbelieved by the learned High Court in paragraph No.16, of the impugned judgment.
7. So far as the recovery of 30-bore pistol at the pointing out of the petitioner is concerned, we have noted that as per PFSA report (Ex.PP), the empties recovered from the spot did not match with the said pistol, hence the alleged recovery of pistol at the pointing out of the petitioner is in consequential for the prosecution case.
8. After discarding the prosecution evidence qua the recovery of pistol and motive, we are left with ocular account and the medical evidence of the prosecution. In this respect, it is noteworthy that the occurrence took place near the graveyard of village Mandi Bhattian, whereas the prosecution eye-witnesses namely Ali Akbar complainant (PW-6) and Zohaib Asghar (PW-7), both were residents of village Mandi Jattan. The said eye-witnesses were not residents of village, where the occurrence took place, therefore, they were bound to prove the reason of their presence at the relevant time at the spot, which was situated in a different village. It is true that in order to justify their presence at the spot at the relevant time, it was stated by the abovementioned eye-witnesses that they came to village Mandi Bhattian to offer funeral prayer of one Fazal Karim and the occurrence took place near the graveyard immediately after the funeral prayer but no resident of the village Mandi Bhattian was produced in the witness box to support the abovementioned claim of the eye-witnesses (PW-7 and PW-8), that they participated in the abovementioned funeral prayer of Fazal Karim and the said witnesses were present in his village at the time of occurrence. The claim of the prosecution that the abovementioned eye-witnesses were present in the village Mandi Bhattian to offer funeral prayer of one Fazal Karim, shows that the complainant party had close ties with the family of said Fazal Karim but even no member of the family of the abovementioned Fazal Karim was produced in the witness box to support the prosecution case. As the prosecution eye-witnesses were chance witnesses and they could not prove the reason of their presence in a different village at the time of occurrence through any cogent evidence, therefore, they are chance witnesses and as such their evidence is not free from doubt as observed in the cases reported as Mst. Sughra Begum and another v. Qaiser Pervez and others (2015 SCMR 1142) and Muhammad Irshad v. Allah Ditta and others (2017 SCMR 142).
9. We have further noted that the abovementioned witnesses stated that after offering the funeral prayer only Ali Asghar deceased had proceeded towards his village on a motorcycle and they (PWs) proceeded towards their village by foot. It does not appeal to a prudent mind that when Ali Asghar deceased was going alone on his motorcycle to his village from a different village then as to why none from the abovementioned eye-witnesses, who being real brother and son were closely related to the deceased, did not accompany him on his motorcycle. It appears that the above-mentioned witnesses have consciously stated that they proceeded by foot towards their village because as per postmortem report there were four (04) entry and four (04) exit wounds on the body of the deceased, therefore, it was difficult for the said witnesses to justify their presence on the motorcycle of the deceased at the time of occurrence because in that case, they (PWs) should have also received injuries if they sitting on the pillion seat of the motorcycle of the deceased due to the bullets which went through and through from four (04) exit wounds on the back side of the body of the deceased. In order to cover the above situation, they (PW-7 and PW-8), stated that they were going by foot to their village, at the time of occurrence, otherwise, their natural conduct would have been to accompany the deceased on his motorcycle. It shows that none form the prosecution s eye-witnesses was present at the spot at the time of occurrence and the story of going by foot towards their village was concocted by (PW-6 and PW-7), to justify their presence at the spot at the relevant time.
10. We have further noted that there is glaring conflict between the ocular account and medical evidence of the prosecution. The prosecution eye-witnesses stated that the fire shot made by Khalid (co-accused since acquitted), landed on the back of left thigh of Ali Asghar (deceased), whereas, the fire shot made by Yasir alias Jagga co-accused landed on the back of the deceased but according to the medical evidence furnished by Dr. Muhammad Ali Bashir (PW-3), the injuries on the back (injury No.6) and on the back of thigh (injury No.5), both were exit wounds. The said conflict between the ocular account and the medical evidence of the prosecution also shows that the abovementioned witnesses were not present at the time of occurrence and their evidence is doubtful, hence not reliable. Reference in this respect may be made to the judgment reported as Bashir Muhammad Khan v. The State (2022 SCMR 986), wherein at page No.990, it has been held as under:-
The Medical evidence is inconsistent with the ocular account as regards injury No.3, on the right hip of the deceased is concerned, which in-fact was an exit wound but according to the prosecution witnesses of ocular account the same was an entry wound in these circumstances, a dent in the prosecution s case has been created, benefit of which must be given to the appellant .
Similarly in the case of Tajamal Hussain Shah v. The State and another (2022 SCMR 1567), at page No.1571, it has been held as under:-
The ocular account in this case is furnished by Zulfiqar Ahmed (PW-18) and Muhammad Daraz (PW-19). According to these PWs of the ocular account, the petitioner while armed with 30 bore pistol made a straight fire shot on Muhammad Sajjad, deceased, which landed on his chest, due to which he fell down and ultimately succumbed to the injury. However, this stance is contradicted by the medical evidence. According to Dr. Raheem Khan (PW-15), who conducted postmortem examination of the deceased Sajjad, the injury on the chest, just above the nipple of the deceased was an exit wound and the margins of the wound were black whereas the entry wound was on the back of the deceased i.e., at thoracic spine. The blackening around the wound show that the fire shot would been made from a close range but according to the site plan, the petitioner was shown standing at a distance of 18 steps away from the deceased. This major discrepancy raises serious doubts on the credibility of the prosecution witnesses of the ocular account .
Likewise, in the case reported as Mansab Ali v. The State (2019 SCMR 1306), it has been held as under:-
2. Prosecution case is structured upon ocular account. According to Muhammad Bilal, PW-6, the appellant made two successive shots on the deceased, first landing on the right arm, while second hitting the back; Muhammad Mansha, PW-7 took the same position. Both of them are in a diametrical conflict with the position taken in the crime report wherein the appellant is assigned solitary shot landing on the deceased's chest. Confusion is further compounded by the statement of Dr. Javid Ahmed, PW-3, who noted an entry wound on the posterior aspect of left shoulder; the bullet exited from the chest valve; the second fire shot was on the right upper arm with its corresponding exit. This is, not in line with the prosecution case that the appellant targeted the chest as the wound noted by the Medical Officer is an exit wound.. .
11. It is further noteworthy that according to the prosecution case, it was son of the complainant namely Aamir Mehmood, who had earlier injured Iftikhar Ahmad alias Meena (petitioner) by making fire shots, therefore, under the circumstances, the complainant himself should have been the prime target of the petitioner but the complainant who himself was present at the spot at the time of occurrence did not receive a single injury during the occurrence, whereas there was no motive with the petitioner to commit the murder of Ali Asghar (deceased). We are, therefore, of the view that the prosecution eye-witnesses were not present at the spot at the relevant time. The said fact has also created another dent in the prosecution story. Reference in this context may be made to the judgment reported as Muhammad Zaman Mangat v. Muhammad Akhtar and others (2004 SCMR 757), wherein at page 760, it has been held as under:-
10. The motive is the previous murder of one Safdar Iqbal. The FIR of that case indicates that Ghulam Rasool complainant and his companion, Muhammad Azam were the nominated accused for the murder of Safdar Iqbal. Had they been present on the spot, they would have been the first target of the assailants. This is a strong circumstantial evidence which seriously points to the absence of complainant and his companions from the spot.
Similar view was taken in the cases reported as Saleem Khan v. The State and others (2021 SCMR 1472) and Rohtas Khan v. The State (2010 SCMR 566).
12. As mentioned earlier that for the single deceased of this case namely Ali Asghar, the complainant party has implicated eight (08) accused with the allegation that they all were present at the spot at the time of occurrence, whereas two (02) other accused namely Bashir Ahmad and Manzoor were also implicated in this case with the allegation of abetment and as such total ten (10) accused persons were involved for the single deceased of this case. Khalid Hussain and Farzand Ali (co-accused since acquitted), were also assigned one firearm injury each on the left thigh and left side of penis of Ali Asghar (deceased). As per postmortem report of Ali Asghar (deceased), the said injuries were available on the body of the deceased as injury Nos. 4 and 3, respectively but the abovementioned co-accused have already been acquitted by the learned trial Court. No appeal was filed by the complainant party before the learned High Court, against the acquittal of the abovementioned acquitted co-accused and as such their acquittal has attained finality. Under the circumstances, this Court has to see that as to whether or not there was any independent corroboration against Iftikhar Ahmad alias Meena (petitioner) of the same prosecution evidence, which has already been disbelieved against the abovementioned acquitted co-accused. As mentioned earlier, the recovery of pistol 30-bore and motive part of the prosecution case have already been disbelieved by us due to the reasons mentioned in paragraphs Nos. 6 and 7, of this judgment. There is no other independent corroboration of the prosecution case against Iftikhar Ahmad alias Meena (petitioner), hence the prosecution evidence which has already been disbelieved against the abovementioned acquitted co-accused namely Khalid Hussain and Farzand Ali, cannot be believed against the petitioner without intendent corroboration, which is very much lacking in this case. Reference in this context may be made to the judgments reported as Akhtar Ali and others v. The State (2008 SCMR 6), Muhammad Pervaiz v. The State and others (PLD 2019 Supreme Court 592), Liaqat Ali and others v. The State and others (2021 SCMR 455) and Shaukat Hussain v. The State through PG Punjab and another (2024 SCMR 929).
13. Keeping in view all the aforementioned facts, we have come to this irresistible conclusion that the prosecution has failed to prove its case against the petitioner beyond the shadow of doubt. It is by now well settled that if there is a single circumstance, which creates doubt in the prosecution case then the same is sufficient to acquit the accused, whereas the instant case is replete with number of circumstances, which have created serious doubts in the prosecution story. Reference in this context may be made to the judgments reported as Tariq Pervez v. The State (1995 SCMR 1345) and Muhammad Akram v. The State (2009 SCMR 230). Consequently, this petition is converted into an appeal and allowed. The judgments of the High Court and the Trial Court dated 20.09.2017 and 30.01.2014, respectively, are hereby, set aside. The petitioner is acquitted of the charge while giving him the benefit of doubt. He shall be released from the jail forthwith unless required to be detained in any other case.
JK/I-18/SC Appeal allowed.