Jawwad S. Khawaja J.--The appellant Liaqat Ali impugns the judgment of a learned Division Bench of the Lahore High Court, whereby his conviction under Section 302(b) PPC by the learned trial Court, was affirmed and the Murder Reference made by the learned trial Court was answered in the affirmative. As a result, the appellant stood convicted for committing qatl-i-amd of Muhammad Ali deceased and was sentenced to death. Additionally, he was also sentenced to pay a fine of Rs,50,000/- and to pay Rs,50,000/- as compensation to the legal heirs of the deceased.
2. The case arises out of FIR No, 232 of 1999 dated 29.5.1999 lodged at Police Station Satiana, District Faisalabad, by Muhammad Hanif (PW9), brother of the deceased. The complainant had, in addition to the appellant, implicated the appellant's brother Shan Elahi and three others namely Muhammad Akram, Arif and Shafaqat in the commission of the crime. All five accused were challaned and thereafter charged by the learned trial Court. The appellant alone was convicted by the learned trial Court while the remaining co-accused were acquitted. The complainant filed an appeal against such acquittal, but the same was withdrawn to the extent of three of the co- accused namely, Muhammad Akram, Arif and Shafaqat. As to Shah Elahi, brother of the appellant, the appeal was dismissed on merit. It is in this background that the appellant has impugned his conviction. Leave to appeal was granted to the appellant in the following terms: "After hearing learned counsel for the parties, we find that a single injury sustained by the deceased at right side of the head was attributed to the two nominated accused and the trial Court as well as the High Court without properly attending the question of liability vis-a-vis the injury, held the petitioner guilty. Leave is therefore, granted to reappraise the evidence to ascertain the question of guilt or otherwise of the petitioner. Leave granted."
3. The case of the prosecution against the appellant has been set out in the impugned judgment. It, therefore, need not be reproduced in extenso. It will suffice for the present to note the relevant aspects of the case as presented by the prosecution. The complainant Muhammad Hanif alleged that the appellant alongwith his brother Shan Elahi had fired one shot each to the right side of the deceased's head, thereby causing his death. According, to the complainant, the occurrence took place at 8.00 a.m. when the deceased had boarded the tonga of Shaukat Ali at a culvert (pulli) in the abadi deh of Chak No, 37/GB. As many as 11 witnesses were examined by the prosecution to prove the guilt of the appellant and those accused alongwith him. These PWs included the complainant Muhammad Hanif (PW9). However, very strangely the tongawala namely, Shaukat Ali and another tongawala Zuffiqar, who would have been the most credible independent witnesses of the occurrence, were neither examined as PWs nor were they associated with the investigation of the crime.
4. On account of the circumstances noted in the leave granting order, we have examined in detail the evidence produced by the prosecution and have found gaping holes and inconsistencies therein. As a result, we have not found the prosecution case to be reliable and, therefore, have decided to allow this appeal for reasons which are discussed below.
5. The most glaring discrepancy in the case set up by the prosecution is to be found in the inconsistency between the ocular account of the occurrence given by PW9 and PW10 and the medical evidence in the case. The alleged eye-witnesses claim that both the appellant and his brother Shan Elahi had fired one shot each which hit the deceased on his head. The postmortem report and medical testimony given by Dr. Anwar Saud Saqib (PW5), however, categorically show that only one firearm injury was caused to the deceased. This inconsistency casts a serious doubt on the credibility of the complainant PW9 and his son Bashir Ahmad PW10, who claimed to have seen the occurrence. It was argued by learned counsel for the appellant that these two witnesses had not seen the occurrence and had given perjured testimony. Considering the aforesaid medical evidence, this argument carries weight. This, however, is not the only reason for disbelieving the PWs.
6. We note from the testimony of DO Anwar PW5 that he had not mentioned the time of death in the relevant column of the postmortem report. He did, however, state in cross-examination as under: "... The stomach of the deceased was healthy and in this case the food had assumed the semi- digested condition in [sic] 4 to 6 hours after having been taken by the deceased. The food in this case was taken by the deceased in about 4 to 6 hours prior to his death, as the process of digestion stops immediate [sic] on death."
This testimony would, in the ordinary course, indicate that the deceased had taken his last meal at the odd hour of around 2.00 or 3.00 a.m, if the ocular account is to be believed. The more reasonable inference from the said medical evidence would be that the deceased took his last meal at the normal time for evening meals, which would be between maghrib and isha time in a rural setting. In the circumstances, the more plausible conclusion to be drawn from the medical evidence would be that' the deceased met his end in, the dark of night between 1.00 a.m. and 3.0Q a.m, if we take isha time to be around 9.00 p.m. at the end of May, when the alleged occurrence took place. The prosecution could have led evidence to dislodge the above inference by proving that the deceased had taken his last meal at the unusual time suggested by the medical evidence.
No such evidence was led. This aspect of the case appears to have escaped the attention of the learned Courts below who have uncritically believed that the occurrence took place in broad day light and was witnessed by PW 9 and his son PW10.
7. The next element of the case which we find relevant is that both Courts below have, in material particulars, disbelieved the testimony of the aforesaid. PWs and have as a result, acquitted the other co-accused including the appellant's brother Shan Elahi who was attributed a role identical to that of the appellant. We note from the impugned judgment that the reason for convicting the appellant while acquitting his brother Shan Elahi, is the process of sifting the grain from the chaff"
This principle could be considered relevant for the purpose of acquitting the three co-accused namely, Muhammad Akram, Arif and Shafaqat who did not cause any injury to the deceased and may have been falsely implicated in the case. There, however, appears to be no logic or rational basis for differentiating between the appellant and his brother Shan Elahi. The reason given by the learned Courts below for convicting the appellant alone is that according to the eye-witnesses he fired the first shot. This conclusion cannot constitute a valid basis for convicting the appellant, because the two alleged eye-witnesses have been found to be untruthful in material particulars by the learned Courts below. Therefore, basing the conviction of the appellant and awarding capital punishment to him on the strength of testimony given by such witnesses, will in our opinion be contrary to settled principles and will thus constitute miscarriage of justice. If anything, the falsity of the t stimony of the two PWs, supports the contention of learned couns 1 for the appellant that the occurrence was un-witnessed. Furthermore, based on the medical evidence considered above, it is more than likely that the occurrence took place in the dark of night rather than at 8.00 a.m. as alleged by the prosecution.
8. We have also found it quite strange that the two most credible witnesses of the crime, who could have testified as to the time and circumstances of the occurrence, were neither associated with the investigation nor examined in Court. These witnesses are Shaukat Ali, who according to both PW9 and PW10, was the tongawala sitting in the tonga alongwith the deceased when the latter was fired upon, and Zulfiqar another tongawala, who is stated by PW9 to have been in his tonga at the spot where the occurrence allegedly took place. We repeatedly asked the learned DPG to explain why these witnesses had not been produced at the trial. He was unable to do so. We also note that the complainant PW9 and his son Bashir PW10 are not consistent with each other even in respect of the presence of Zulfiqar. While the complainant has mentioned the presence of a second tonga, PW10 has categorically stated that there was no second tonga at the crime scene.
9. There is yet another aspect of the case which highlights serious omissions and discrepancies in the case of the prosecution. In this respect, it is significant that no empties were recovered from the site and nor was any blood, brain matter or pellets gathered either from the tonga in which the deceased was allegedly fired upon or from the ground on which the deceased is stated to have fallen. We find this to be a material shortcoming in the case set up by the prosecution, primarily in view of the medical testimony "that the brain matter was absent from cranial cavity." We have also noted that the .12 bore guns recovered from the appellant and his brother Shan Elahi were not sent to the Forensic Science Laboratory for examination and testing. These omissions, discrepancies and shortcomings in the case set up by the prosecution, cast serious doubt on the veracity of the eye-witnesses. The benefit of such doubt must go to the appellant.
10. Keeping in mind that the complainant PW9 was a full \brother of the deceased and the only other eye-witness was the son of PW9, strongly suggests that their testimony was tainted on account of their close relationship with the deceased. It is correct, as observed by the learned Courts below, that the testimony of a close relative of a victim cannot by .itself, be sufficient for the purpose of excluding the same from consideration. In the present case, however, there are so many circumstances, discussed above, which undermine the credibility of PW9 and PW10 and thus seriously weaken, indeed negate the probative value of their testimony. In these circumstances, it would be unsafe to base a conviction and to maintain the sentence of capital punishment awarded to the appellant.
11. We have gone through the judgments of the trial and appellate Courts and note that they have not taken into account the above noted aspects of the case. The cumulative effect of the inconsistency of the medical evidence with the ocular account and the other discrepancies, inconsistencies and failings on the part of the prosecution, is sufficient to show that the prosecution has failed to bring home the guilt of the appellant beyond reasonable doubt. In the circumstances, we allow this appeal and set aside the judgments of the leaned trial and appellate Courts. As a result, the appellant is directed to be set at liberty, if not required in any other case.