' HASNAT AHMAD KHAN, J.---Through this single judgment we intend to dispose of Criminal Appeal No,672 of 2002 titled Muhammad Rafiq v. The State and Murder Reference No,297 of 2002 sent by the learned Additional Sessions Judge Depalpur for confirmation or otherwise of the death sentence awarded to Muhammad Rafiq appellant.
2. Muhammad Rafiq, appellant has challenged his conviction recorded by a learned Additional Sessions Judge, Depalpur, in case F.I.R. No,365 of 2000 dated 14-8-2000 under section 302, P.P.C.
Registered with Police Station Saddar Depalpur, District Okara whereby he was sentenced to death under section 302(b), P.P.C. In addition to compensation of Rs,1,00,000 payable to the legal heirs of the deceased. He was also convicted under section 392/34, P.P.C. And was sentenced to 10 years' R.I with a fine of Rs,20,000 or in default of payment thereof he was ordered to undergo further one year's S.I. Naveed Ahmad co-accused of the appellant was also found guilty and sentenced to imprisonment for life under section 302(b)/34, P.P.C. He was also convicted under section 392/34, P.P.C. And sentenced to imprisonment for ten years and a fine of Rs,20,000 in default whereof he was to undergo S.I. For one year. Benefit of section 382-B, Cr.P.C. Was also given to him. He filed Criminal Appeal No,680 of 2002. During the pendency of said appeal an application under section 345, Cr.P.C. Was filed to compound the offence which was allowed vide order dated 10-10-2007 and Naveed Ahmad co-accused of the appellant was acquitted of the charge.
3. Prosecution story in brief, as disclosed in the F.I.R. (Exh.PD/1) by the complainant Sher Khan son of Nizam Din (P.W.6) was to the effect that his son namely Rasheed Ahmad Khan had a Toyota Corolla Car being the Registration No,4286/GTA which he used as a taxi. On the night of the occurrence at 8-00 p.m. Rasheed Ahmad (deceased) drove off in the said taxi, and on the next morning at 7-30 a.m. The complainant received an information that Rasheed Khan had been gunned down by some unknown culprits and his dead body was lying in the fields, whereas his car had been parked near a darbar.
4. On receipt of the information on 14-8-2000 at about 8-30 p.m. Lal Din, S.-I, Police Station Saddar Depalpur, P.W.15, reached at the place of occurrence, recorded the statement (Exh.PD) of Sher Khan- complainant (PW.6), examined the dead-body of the deceased, prepared the injury statement (Exh.PM) and inquest report (Exh.PN). After dispatching the dead body for its autopsy, he inspected the place of occurrence and took into possession the blood-stained earth and Toyota Corolla Car vide memos. Of recovery (Exh.PE) and (Exh.PF) respectively. Rough site plan (Exh.PS) of the venue of the recovery was also prepared by him. After the post-mortem examination, last- worn clothes of deceased were taken into possession vide Exh.PR. Thereafter, he got prepared the site plan Exh.PB. He recorded the statements of Hafiz Abdul Ghafoor (P.W.8) and Muhammad Hanif (PW.9) under section 161, Cr.P.C. On 15-8-2000.
4. After arresting the accused-appellant on 12-2-2001, Muhammad Nawaz, A.S.I. (PW.1), the Investigating Officer, recovered weapon of offence (Exh.PA) i,e, pistol .30-bore with 5-live bullets on his (appellant's) personal search, and the said weapon was sealed into a parcel and sent to the Forensic Science Laboratory. After due investigation, Muhammad Boota submitted an incomplete challan/report under section 173, Cr.P.0 against the appellant.
5. The appellant along with his co-accused was indicted by the trial Court on the charge of murder of Rasheed Ahmad Khan (slain). During the trial, the prosecution, in support of its case, produced as many as fifteen witnesses, out of whom Muhammad Nawaz A.S.-I appeared as P.W.1 and stated that he had arrested the accused on 12-2-2001 and recovered a pistol .30-bore (P.1) from his possession. Muhammad Shaban, Constable (P.W.5) came out as recovery witness of the .30-bore pistol from the possession of the appellant who according to the said P.W. Was arrested on 12-12- 2001. Sher Khan, the complainant came forward as P.W. 6 and reiterated the contents of the complaint Exh.PD. Muhammad Ahmad Khan appeared as P.W.7 and verified the recovery memo.
(Exh.PE) of blood-stained earth, recovery memo. (Exh.PF) of the Car Hafiz Abdul Ghafoor (P.W.8) stated that on the fateful day he along with Muhammad Hanif (P.W.9) had gone to Manchurian to purchase paddy and wheat. On their way they went to a hotel where the appellant and his accomplice namely Naveed were sitting. According to P.W.8, he and Muhammad Hanif (P.W.9) overheard both the accused saying that they would snatch a car from someone for its sale. He further deposed that at about 9-30 p.m. When they reached near Dhari/Dwelling place of Qurban, on their way back to Depalpur they saw that the appellant and his accomplice were scuffling with the deceased inside the car. Muhammad Rafiq, appellant stately pulled .30-bore pistol on the deceased and shot him dead where after the dead body of Rashid Khan was thrown by the said muggers into a maize field, thereafter the robbers drove off in the car of the slain. According to (P.W.8) the whole occurrence was witnessed by him and Muhammad Hanif (P.W.9) in the light of the headlights of their car. Muhammad Hanif appeared as (P.W.9) and reiterated the story/version put forward by Hafiz Abdul Ghafoor, (P.W.8) Dr. Munir Ahmad, was had conducted autopsy (Exh.PG.) on the dead body of Rasheed Ahmad Khan (deceased) appeared in the witness-box as (P. W.12) and gave the detail of the injuries on the dead body of the deceased as under:--
(1) A lacerated wound 1 x 3/4 c.m. Going deep on left scapular area, margins inverted, blackening present at margins and punctuate burning present in 5 x 5 c.m. Area around wound (entry wound).
This wound was 8 c.m. Below left shoulder top and 14 c.m. To the midline.
' On dissection: bullet entered left pleural cavity through forth intercostal space after traversing through 'left scapula. It perforated left lung, pericardial cavity, left and right atrial of heart, right pleural cavity and right lung and went out of right chest wall by fracturing right sixth rib through wound No,2. 500 M.L. Blood was found in the left pleural cavity, 2000 M.L. Blood was found in parcardial cavity and one liter of blood was found in right pleural cavity.
2. (Wound of exit) Lacerated wound 1 1/2 c.m. Deep going margins averted, no blackening at front and outer side of middle part of right chest, 3 c.m. Outer to right nipple at .8 0 Clock position to right nipple. Skull, brain vertibrea spinal card, all the abdomen visrae and remaining chest viscra were healthy. Stomach was semi filled with semi-digested food and urinary bladder had two owns of clear urine.
' In his opinion, the death had occurred due to hemorrhage shock due to injuries to both the lungs and the heart. According to him all the injuries were anti-mortem and sufficient to cause the death in ordinary course of nature.
6. Muhammad Boota, S.I. To whom the investigation was transferred subsequently showed up as P.W. 14 and furnished the detail of the investigation conducted by him. According to him he had arrested Naveed Ahmad, accused-appellant along with .30-bore pistol on 1-10-2000. He further deposed that he got issued warrants for arrest of the appellant where after got issued proclamation against him. Lal Din, S.-I. The first Investigating Officer, stepped into the witness-box as P.W.15 and stated that on 14-8-2000 he had recorded the statement of the complainant Exh.P.D.
Rest of the witnesses produced by the prosecution were formal in nature, therefore, they need not be discussed. The prosecution gave up Nisar Ahmad, Constable, Nasim Akhtar, Constable, Ali Sher, Abdul Sattar Ghulam Hussain, Bashir Khan, P.Ws being unnecessary and tendered report of Chemical Examiner (Exh.PT), report of Serologist (Exh.PU) and reports of F.S.L. (Exh.PV) and (Exh.P.W.).The statements of the appellant was recorded under section 342, Cr.P.C. During said statement in answer to a question the appellant stated as under:-- "It was a blind occurrence. The police rozenamcha was withheld for about 24 hours and police tried to make search of the accused/culprits. The proof of which is that the complaint was drafted by Lal Din P.W. At 8-30 p.m. But the F.I.R. Was drafted at 8-00 a.m. The police arrested so many persons from village Mancharian and surrounding localities. I and Naveed was also arrested by the police in this case. The police released all the persons after taking heavy bribe from them. One Nasrullah was also let off by the police in the same manner. I belong to a poor family and could not fulfil the demand of the police, hence, I was challenged in this case. The police manoeuvred extra judicial confession during police custody against me and my co-accused. Later on, on the direction of D.S.P. Depalpur Muhammad Hanif and Hafiz Abdul Ghafoor P.Ws. Were made eye-witnesses against me and my co-accused, they were made P.Ws. Against us after our arrest in this case and their statements Exh D.A. And Exh.D.B. Were drafted ante-dated. Both the P.Ws. Are Mohalladar of the deceased and the complainant party. Their conduct is highly objectionable. The police Was so much interested in the case that. The Investigating Officer himself accompanied Hafiz Abdul Ghafoor to Muhammad Hanif P.W. To become witnesses in this case. The police investigation was partial."
7. The appellant however, denied to appear as his own witness under section 340(2) Cr.P.C. After conclusion of the trial the learned trial Court convicted and sentenced the appellant as above.
8. Learned counsel for the appellant after pulling the prosecution's evidence to pieces, contended that the prosecution story is nothing but a cooked book; that the prosecution's version is neither believable nor probable, and one would take the same with a pinch of salt; that there is a delay of more than 12-hours in lodging the F.I.R.; that admittedly the complainant is not the eye-witness of the occurrence; that according to the F.I.R. It was a blind murder but later on P.Ws. 8 and 9 were introduced as eyewitnesses; that as per the eye-witnesses the motivating factor behind the occurrence was snatching of the car from Rasheed (deceased) but it does not appeal to reason that after robbing the car from Rasheed (deceased) why did the muggers leave the car just a kilometer away from the dead body of the deceased; that both the eye-witnesses while appearing in the witness-box made parrot like statements which show that they had been tutored before their appearance before the trial Court and that the appellant is entitled to benefit of doubt.
8. Conversely, the learned Deputy Prosecutor-General refuted the arguments put forth by the learned counsel for the appellant and argued that the prosecution has proved its case beyond any shadow of doubt and the trial Court was quite justified to give capital punishment to the appellant; who had murdered the son of the complainant' that neither the complainant nor the eye-witnesses who fully supported the prosecution's case had any antipathy or animosity to falsely implicate the appellant in a case of capital punishment; that ocular testimony furnished by the two eye- witnesses had been fully supported by medical evidence, the motive and recovery of the crime weapon at the instance of the appellant and that the appellant during his statement recorded under section 342, Cr.P.C. Failed to advance any plausible reason for his false involvement in the said case.
9. The arguments put forth by both the sides have been heard by us ardently.
10. To plumb the depths of prosecution case we have gone through the entire material carefully.
The salient features of this case are; that at the time of lodging the F.I.R, the homicide of Rasheed (deceased) was shown to a blind one; that at the time of lodging the F.I.R. Exact time of the crime was not known to the complainant; that according to the complainant; his son, Rasheed was gunned down sometime between 8-00 p.m. Of 13-8-2000 to 7-30 p.m. On 14-8-2000 i,e, the time, when he received the information regarding the said unfortunate crime by someone whose name was not disclosed in the F.I.R; that Sher Khan (P.W.6) the complainant set the legal machinery into motion by getting his statement Exh.P.D. Recorded at 8-30 p.m. By Lal Din, S.I. (P.W.15) who while appearing in the witness-box tried to cover the said delay by submitting that said statement, in fact, was written at 8-00 a.m. But inadvertently said time was mentioned as 8-00 p.m.; that the relevant column of the F.I.R. Shows that it was recorded at 8-45, it does not specify as to whether it was 8-45 a.m. Or 8-45 p.m and that Abdul Ghafoor (P.W.8) and Muhammad Hanif P.W.9 were introduced by the Investigating Officer on 15-8-2000 i,e, on the third day of the murder.
11. In this backdrop we have picked the prosecution's evidence to pieces where after we have concluded that, as mentioned above, initially, according to the prosecution's own version it was a blind murder which at least was not witnessed by the complainant. At the time of making the statement Exh.PD on the basis of which F.I.R. Was lodged the complainant was not aware of the raison deter behind the occurrence. The record reveals that statement of the complainant was recorded at 8-30 p.m. As mentioned above the relevant column of time of recording of the F.I.R.
Does not show that it was written as 8-45 a.m. It only mentions the relevant time as 8-45. This shows that the complaint was recorded after preliminary investigation. This fact supports, the appellant version that after receipt of the information of the murder Roznamcha was stopped by the police which men's that the investigation was conducted dishonestly. We have further observed that on the third day of the occurrence Abdul Ghafoor P.W.8 and Muhammad Hanif P.W.9, abruptly, appeared before the Investigating Officer and after claiming themselves to be the eye- witnesses made statements under section 161, Cr.P.C. According to them while sitting in a hotel they heard a tete a tete between the appellant and his co-accused namely Nawaz, who planned to mug someone's car. Said .Witnesses further claimed that on the same evening at 9-10 p.m. When they were on their way to Baba Farid Rice Mill they saw the appellant and his aforementioned co- accused having a scuffle with Rasheed (deceased) in his car. They further stated that Rasheed was gunned down by the appellant. They went on to allege that after bumping off Rashid his dead body was thrown by the said culprits into a maize field. During the trial both the said witnesses reiterated the same story. According to the learned Deputy Prosecutor-General statements of the said witnesses who are disinterested witnesses got full support from the medical evidence as well as the recovery of the pistol i,e, crime weapon from the possession of the appellant. But we do not find ourselves in agreement with the learned Deputy Prosecutor-General because for believing the ocular testimony, impartiality of the eye-witnesses is not the only criterion. As a matter of fact the prosecution has always to prove beyond any shadow of doubt that the eye-witnesses are reliable and trustworthy witnesses. In criminal jurisprudence, the general rule of appreciation of evidence is that want of interest or absence of enmity does not stamp the statement of a particular witness with presumption of truth and that much depends on the intrinsic value of the statement of a witness. The real tests are:--
(i) whether the statement of a witness is in consonance with the probabilities.
(ii) whether it fits in with the other evidence and
(iii) whether it inspire confidence in the mind.
' Reliance in this regard is placed upon the cases of Muhammad Iqbal v. The State (1984 SCM R 930), Muhammad Iqbal v. Abid Hussain alias Muthu and 6 others (1994 SCMR 928), Haroon alias Harooni v. The State and another (1995 SCM R 1627) and Muhammad Arshad alias Achhi v. The State (1995 SCM R 1639). There is another cardinal principle of jurisprudence, that is, to disbelieve a witness, it is not necessary that there should be numerous infirmities. If there is one which B impeaches the credibility of the witness, that may make the entire statement doubtful.
12. In this case while applying the said litmus test we have reached inescapable conclusion that both the eyewitnesses in the case are not reliable witnesses. For holding so there are manifold reasons. Firstly, the names of the said eyewitnesses do not find a mention in the F.I.R. Though the same was lodged with the delay of about 11 hours, even if we believe that same was recorded at 8- 45 a.m. And not 8-45 p.m. Secondly, the behavior of the eyewitnesses is quite unnatural i,e, though a human being was wiped out right in their presence but neither did they opt to bring the matter into the knowledge of the concerned police nor did- they bother to report the occurrence to the unfortunate family of Rasheed (deceased). It is pertinent to mention here that it was not the case of the petitioner that they did not know Rasheed (deceased). We have further noticed that during his cross-examination Ghafoor P.W.8 admitted that facility of phone was available at Mancherian which is situated at 2 1/2 kilometers from the spot but interestingly enough both the witnesses did not even use that facility to inform the relevant quarters about the heinous crime witnessed by them. According to P.W.8 after the occurrence he reached Depalpur at 10-30 p.m. But according to him at that time he was shock-stricken. He claimed that though he was "Mohally Dar" of the complainant but he did not attend the funeral of Rasheed Khan. He further stated that he did not even mention the occurrence to his family members. Almost to the similar effect is the statement of Hanif, P.W.9, the other alleged eye-witnesses. During his cross-examination he admitted that the distance between his house and that of the complainant was about three acres. Said witness claimed that after the occurrence he went to the rice mill where he met 4/5 persons but did not report the matter to them. To cover the delay in unraveling the mystery of the murder he claimed that a day after the occurrence he had gone to Basipur from where he returned on 14th August, 2000. But admittedly he reported the matter to the police on 15th August, 2000.
13. Besides that the eye-witnesses made certain improvements also while appearing in the witness-box. Epitome of the discussion made above reveals that explanation made by the eye-witnesses for not reporting the matter to the concerned quarter at the earliest is not believable. Moreover, the recovery of the car of Rasheed (deceased) from a nearby place of the crime negates the ocular account whereby it was claimed that the accused had driven off the snatched car. It is even otherwise not believable that the car for which the murder was committed by the outlaws was left by them near the scene of the occurrence. Moreover, the prosecution failed to prove the conspiracy E part of the prosecution's story by producing any one from the management or employees of the hotel where the conspiracy was hatched by the accused. It is even otherwise not believable that one would hatch such like conspiracy in the view and hearing of -the public. During the cross-examination the Investigating Officer conceded that during the investigation one Nasrullah was also suspected as one of the murderers. There is another principle of criminal jurisprudence that one tainted piece cannot be corroborated with other tainted piece of evidence.
14. In a nutshell, the prosecution has miserably failed to prove its case through unimpeachable ocular testimony. Capital punishment cannot be maintained on such like evidence. Motivating factor has also not been proved. The medical evidence only proved that the life of Rasheed was shortened by shooting at him by somebody. The medical evidence can only prove the kind of weapon, number of injuries, time of injuries and cause of death etc. But , surely, it cannot identify the assailants. So the medical evidence in the peculiar circumstances of the case in hand, cannot corroborate the ocular evidence which has not been found trustworthy rather the same is economical with truth. It is pertinent to mention here that the statements of both the eye-witnesses were recorded on 15-8-2000 while the post-mortem report had already been received by that time. So they could easily make their statements in line with the medical evidence. So the same cannot corroborate their statements. As far as the recovery of the pistol from the possession of the appellant is concerned, the same is also not much helpful to the prosecution as no crime empty was recovered from the sport. So the pistol recovered from the appellant could not be wed with such crime empty.
15. For what has been discussed above, this appeal is accepted and conviction and sentence awarded to the appellant is set aside. Consequently, he is acquitted of the charge. The murder reference is answered in negative.