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Petitioner: MUHAMMAD SIDDIQUE VS Respondent: StateHonorable Justice Khawaja Muhammad SharifS.D. Qureshi,Naseeruddin Khan Nayyar, APG assisted Ms. Sarnia Bashir
2007 M L D 1026
2007 M L D 1026
[Lahore]
Before Khawaja Muhammad Sharif, J
MUHAMMAD SIDDIQUE---Appellant
Versus
THE STATE---Respondent
Criminal Appeal No.1118 and Criminal Revision No. 731 of 2003, heard on 6th April, 2007.
Penal Code (XLV of 1860)---
----S. 302(b)---Appreciation of evidence---Benefit of doubt---Complainant was real uncle of deceased, while prosecution witness was maternal nephew of complainant---Accused though had led to recovery of pistol, but no report of Fire-arm Expert respecting same was on the record---Ocular account in the case as given in F.I.R. was in conflict with medical evidence---F.I.R. stated that shot was received by deceased from the hands of accused when he was lying on a cot in the prostate condition, but according to medico-legal report the Doctor had found a wound of entrance on front of left side of abdomen of deceased; there should not have been any mistake in that regard especially when there was only one injury---Deceased was not taken to the hospital by any of the three prosecution witnesses mentioned in the F.I.R., which had shown that no said witness was present at the spot---Eye-witnesses, in order to make ocular account in line with medical/post-mortem report, had changed their version by making dishonest improvements---No document was on record to show that Doctor had declared deceased, while injured, fit for recording of statement/dying declaration, for such omission, evidentiary value of said statement was lost---No lantern which at relevant time was stated to be on, was taken into possession by Investigating Officer---Mere recovery of pistol was of no avail to prosecution because no report of the Fire-arm Expert was available on the record in respect thereof--Incident was a night time occurrence, on which point of time identification of culprit was not possible---Even F.I.R. was recorded outside the police station---Prosecution had failed to prove its case against accused beyond any shadow of doubt to sustain conviction of accused---Prosecution case was full of doubts and on basis of such a shaky evidence conviction and sentence awarded to accused, could not be maintained because same having not come through unimpeachable sources, was untrustworthy, unreliable and could not stand the test of judicial scrutiny---Impugned judgment was set aside and accused was acquitted of the charge and was released.
S.D. Qureshi for Appellant (at State expenses).
Naseeruddin Khan Nayyar, APG assisted Ms. Sarnia Bashir for the State.
Nemo for the Complainant.
Date of hearing: 6th April, 2007.
JUDGMENT
KHAWAJA MUHAMMAD SHARIF, J.---This judgment shall dispose of Criminal Appeal No.1118 of 2003 (Muhammad Siddique v. The State) and Criminal Revision No.731 of 2003 (Ata Muhammad v. The State etc.,) as they arise out of the same judgment, dated 29-5-2003 passed by the learned Additional Sessions Judge, Gojra, whereby, after having tried the appellant, convicted him under section 302(b), P.P.C. and sentenced to imprisonment for life with a further direction to pay a compensation of Rs.1,00,000 as provided under section 544-A, Cr.P.C. in default whereof to further undergo six months S.-I. Benefit of section 382-B, Cr.P.C. was extended to the appellant. However, benefit of doubt was extended to co-accused, namely, Muhammad Ilyas, who was acquitted from the case.
2. Brief facts of the case, as explained by Atta Muhammad complainant in the F.I.R. are that his deceased nephew Noor Muhammad was residing with him, on the night of 11/12-7-2002 at about 2.00 a.m. he along with his said nephew and others were present in the cattle shed when a lantern was on, suddenly appellant armed with a pistol, Ilyas alias Lacha armed with a pistol and two unknown persons came at the dera appellant fired a shot on Noor Muhammad, who was sleeping at that time, which hit on his back, they tried to apprehended the accused but they fled away, Noor Muhammad fell down, he was shifted to Civil Hospital Gojra and then to Allied Hospital Faisalabad but later on died. The motive behind the occurrence was that ten days prior to the occurrence there was a minor quarrel between the deceased and accused, matter was patched up but the accused bore a grudge and killed him.
3. After having completed legal formalities, challan was submitted, against the accused before the learned Court of competent jurisdiction, accused denied the charge and claimed trial, where, the prosecution, in order to prove its case against the accused, produced sixteen prosecution witnesses during the trial.
4. Learned counsel for the appellant in support of this appeal submits that it is a night time un-witnessed occurrence; that the source of light i.e. lantern was disclosed by the prosecution in the F.I.R. but was neither produced nor taken into possession by the police; that the ocular account in this case is in conflict with the medical evidence; that the complainant and other witnesses allegedly took the deceased to the hospital but the circumstances show that they were not present at the place of occurrence; that the prosecution has failed to prove its case against the appellant and that the appellant is entitled to acquittal by this Court.
5. On the other hand, Mr. Naseeruddin Khan Nayyar, the learned Additional Prosecutor General, while appearing on behalf of the State, submits that the appellant was named in the F.I.R., the eye-witnesses had no reason to falsely depose against him, he was attributed a specific shot on the person of the deceased which proved fatal, there is a statement of deceased Noor Muhammad on the record as Exh.PQ which was recorded by S.-I. Siddique when he was in an injured condition which can be termed as a dying declaration and can be made basis for conviction, the ocular account in this case furnished by Atta Muhammad and Manzoor Ahmad P.Ws is corroborated by the medical evidence; that the prosecution has proved its case against the appellant beyond a shadow of doubt and that this appeal is liable to be dismissed.
6. I have heard learned counsel for the parties, have gone through the record with the able assistance of the learned counsel for the respective parties and have also given anxious consideration to the submissions made at the bar by the learned counsel for-the parties.
7. This matter relates to the year 2003, appellant's application for suspension of sentence was dismissed on 9-9-2004, thereafter on three dates of hearing no body appeared for the appellant and even today no body has appeared for him while no body had appeared in Criminal Revision No.731 of 2003 on five dates of hearing and today there is an adjournment on behalf of one Mian Muhammad Aslam, Advocate, so, Mr. S.D. Qureshi, a senior learned Advocate was appointed to argue that appeal on behalf of the appellant because I was not inclined to adjourn it any further. Ms. Sarnia Bashir, Advocate was directed to assist the learned APG on behalf of the State.
8. The occurrence in this case had taken place on the night of 11/12-7-2002, matter was reported to the police on 12-10 a.m. on 12-7-2002 while the F.I.R. was record at 12-30 a.m. on the said day.
9. Two accused, namely, Siddique appellant and acquitted accused Muhammad Ilyas were named along with two unknown accused persons.
10. Deceased in this case is Noor Muhammad while complainant is Atta Muhammad, a real uncle of the deceased. Two eye-witnesses appeared during the trial, namely, Atta Muhammad (P.W.12), Farooq Ahmad (given up) and Manzoor Ahmad (P. W.13) who is maternal nephew of the complainant.
11. Appellant was arrested on 30-8-2002, he led to the recovery of pistol on 8-9-2002 but there is no report of the Fire-arm Expert on the record.
12. P.W.2 Dr. Khalid ur Rehman, who medically examined the deceased, had appeared and observed the following injury on the person of the deceased:
"(1) A lacerated wound of entrance 1.5 c.m. x 1.5 c.m. into DNP with inverted margin on front of left side of abdomen, 6 c.m. from umbilicus with an exit wound 2.5 c.m. x 2.5 c.m on back ' of right side of abdomen 5 c.m. from the mid line with averted margins and fresh bleedings."
13. In the F.I.R. it was stated that the shot was received by the deceased, from the hands of the appellant when he was lying on a cot in the prostate condition but according to the MLR (Exh.PB), the doctor had found a wound of entrance on front of left side of abdomen. There should not have been any mistake in this regard especially when there is only one injury.
14. Apart from above; the deceased was not taken to the hospital by any of the three P.Ws. mentioned in the F.I.R. because name of one Muhammad Aslant, who is first cousin of the deceased, is duly mentioned in the relevant column regarding having brought him to the hospital in an injured condition. Had any witness been present at the spot or accompanied the deceased, his name must have been mentioned in the relevant column of the injury statement although the complainant, while appearing before the learned trial Court, had stated in the examination- in-chief that he along with others took the injured to the hospital, which falsifies his presence.
15. Furthermore, the eye-witnesses, in order to make the ocular account in line with the medical evidence/postmortem report, changed their version by making dishonest improvements and stated during trial that in fact fire was shot by the appellant from the front' left side on his abdomen which created exit wound on the back but it does not advance its case.
16. The learned APG laid much stress on the dying declaration Exh.PQ which was allegedly recorded on 8-8-2002 by the Investigating Officer. This Court, with the able assistance of learned counsel for the parties, has gone through the same. Even in the said statement, the same mistake has been committed by the Investigating Officer who had recorded the same. Neither it has been mentioned in the said statement nor there is any document on record to show that the doctor declared him fit for recording of statement which loses evidentiary value of the said statement.
17. It is pertinent to mention here that no lantern was taken into possession by the Investigating Officer. Mere recovery of pistol is of no avail to the prosecution case because there is no report of the Fire-arm Expert on the record.
18. It would not be out of place to mention here that it is a night time occurrence on which point of time identification of the culprits was not possible. Even the F.I.R. was recorded outside the police station.
19. After having sifted grain from the chaff and after having applied independent judicial mind, this Court is of the considered view that the prosecution has failed to prove its case against the appellant beyond any shadow of doubt to sustain conviction. The prosecution case is full of doubts and doubts and on the basis of such a shaky evidence, the conviction and sentence awarded to the appellant cannot be maintained because the same has not come through unimpeachable sources, is untrustworthy, unreliable and cannot stand the test of judicial scrutiny. Resultantly, this appeal is allowed, the impugned judgment is set-aside, the appellant is acquitted from the case and shall be released forthwith if not required to be detained in any other case. Office is directed to inform the appellant through Superintendent Jail concerned qua the fate of his appeal which has been decided after having appointed and heard Mr. S.D. Qureshi, a senior Advocate on his behalf. Criminal Revision No.731 of 2004 is dismissed having no merit for reasons given above.
H.B.T./M-214/L Appeal allowed.