Muhammad Qasim Khan, J.--Bilal son of Abdul Rehman, Falak Sher son of Ejaz and Sarfraz son of Allah Wasaya faced trial before the learned Additional Sessions Judge, Muzafargarh, in case FIR No, 15 dated 21.01.2003 Under Sections 302/34, PPC registered at Police Station Saddar Muzafargarh and on conclusion of the trial vide judgment dated 31.05.2004, Bilal and Falak Sher co-accused were acquitted of the charge against them, whereas, Sarfraz accused was convicted under Section 302(b), PPC and sentenced to death, with further orders to pay Rs, 3,00,000/ as compensation under Section 544A, Cr.P.C. to the legal heirs of the deceased, in case of default in payment thereof, to undergo simple imprisonment for six months. Criminal Appeal No, 345/2004 was filed by Sarfraz challenging his above conviction and sentence, Murder Reference No, 723/2004 was sent by the learned trial Court in terms of Section 374, Cr.P.C, whereas, Criminal Appeal No, 388/2004 was filed by Muhammad Akram to assail acquittal of Bilal and Falak Sher.
2. Before opening the case on merits, for ready reference we would like to point out here that in the same case, one Abid Hussain accused was tried separately, only for the reason that he had been declared a juvenile and vide a separate judgment of the same date i,e, 31.05.2004 handed down by learned Additional Sessions Judge, Muzafargarh, he (Abid Hussain) was also acquitted and to assail said acquittal a separate Criminal Appeal No, 417/2004 was filed.
3. Furthermore, it also looks quite appropriate to mention here that on 22.06.2009 all these matters were heard by this Court and a short order dated 22.06.2009 was issued, whereby conviction of Sarfraz accused/appellant was sustained, however, sentence was converted from death to life imprisonment, with benefit of Section 382-B, Cr.P.C, whereas, Criminal Appeals No, 388/2004 (against the acquittal of Falak Sher and Bilal) and Criminal Appeal No, 417/2004 (against the acquittal of Abid Hussain) were dismissed. However, the main judgment could not be delivered by the said Bench. The matter was agitated before the Hon'ble Supreme Court of Pakistan through Criminal Appeal No, 19L/2013 and Criminal Appeal No, 20-L/2013 and the apex Court on 21.02.2003 passed the following order: "With the consent of the learned counsel for the parties the impugned judgment dated 22.06.2009 passed by the Lahore High Court, Multan Bench, Multan is set aside, both appeals are allowed and the Registrar of the Lahore High Court, Lahore is directed to fix the Criminal Appeal No, 345 of 2004 and Murder Reference No, 723/2004 in the Court in the week commencing 04.03.2013 and it is expected that the learned High Court shall decide the matter within a period of fortnight thereof."
Hence, pursuant to the above order of the Hon'ble Supreme Court of Pakistan, Criminal Appeal No, 345/2004 and Murder Reference No, 723/2004 are being decided by this single judgment.
4. Briefly the facts of the case are that Muhammad Akram complainant got recorded his statement Ex.PB before the police on 21.01.2003 stating therein that on the fateful evening at 5.00 p.m. he proceeded from home to see the grass in his fields. On the way, Suhail and Hafeez met and joined. him. Sooner they reached near the land of Allah Wasaya, they saw Fayyaz Ahmad (paternal cousin of the complainant) proceeding to his house on a bicycle with a tap recorder in his hands. In their sight, the accused persons namely Sarfraz armed with pistol, Bilal armed with revolver, Abid carrying iron rod (SARIYA) and Falak Sher empty handed, who had hidden themselves in sugarcane crop, came out. Falak Sher shouted lalkara that Fayyaz Ahmad shall not escape. Sarfraz made a straight pistol fire shot at Fayyaz which hit the -deft side of belly of Fayyaz Ahmad; second fire by Bilal also hit left side of Fayyaz Ahmad's belly. Fayyaz Ahmad fell on the ground smeared in blood. Meanwhile, Abid hit iron rod blow on Fayyaz Ahmad which landed on his right eye. On cries raised by the complainant and other two witnesses, persons attracted to the spot and on seeing them the accused along with weapons decamped towards west by hurling abuses. The complainant and witnesses when cared Fayyaz Ahmad he was unconscious. They took Fayyaz Ahmad on a private DALA to the DHQ Hospital, Muzafargarh, but Fayyaz Ahmad succumbed to the injuries on the way.
5. Motive was alleged that Sarfraz accused/appellant had suspicion about illicit liaison of Fayyaz Ahmad (deceased) with his sister Mst. Farzana, whereupon, the complainant party had satisfied them but the accused nourished grudge, and Sarfraz along with Bilal, Abid and Falak Sher in connivance with each other committed the murder.
6. After recording the statement of the complainant Muhammad Azam Qamar Sub-Inspector (PW- 7) sent the same to the police for registration of formal FIR and he himself proceeded to DHQ Hospital, Muzafargarh, prepared injury statement Ex.PJ and inquest report Ex.PK. The dead body was sent to mortuary for post mortem examination. He then reached the place of occurrence, obtained blood stained earth from the spot vide memo. Ex.PC, collected empty cartridges Ex.P.1/1-2, two live bullets P-2/1-2 of 30-bore pistol, both were secured vide memo. Ex.PD. Rough site-plan Ex.PM was prepared, statement of witnesses under Section 161, Cr.P.C. were recorded on 21.01.2003. Sajjad Constable on 22.01.2003 produced last worn blood stained clothes of the deceased (Shalwar P-5, Shirt P-6, Vest P-7) and one sealed phial, secured through recovery memo. Ex.PF and Ex.PG. On 22.01.2003, Muhammad Akram complainant produced before the Investigating Officer cycle P-3 of Fayyaz Hussain deceased and Tape Recorder P-4, secured vide memo. Ex.PB. The Investigating Officer got prepared scaled site plan in triplicate Ex.PA, Ex.PA/1 and Ex.PA/2 through Patwari. On 06.02.2003, accused Bilal, Sarfraz and Abid were arrested, whereas, Falak Sher was arrested on 15.02.2003. During custody Sarfraz led to the recovery of unlicensed Pistol .30-bore P-8 from an iron box lying in a residential room, secured vide memo. Ex.PL, site plan of place of recovery is Ex.PL/1.
The recovery parcels were sent to Police Station for custody and onwards transmission to the concerned office. After completion of investigation he handed over the case file to the SHO and ultimately accused were sent to face trial.
7. On receipt of report under Section 173, Cr.P.C. the learned trial Court charge sheeted the accused, to which they pleaded innocence and claimed to be tried, whereupon, the prosecution examined nine witnesses, which include the statement of Muhammad Azam Qamar Sub-Inspector PW-7 who investigated the case and his statement has been given in detail in the preceding paragraph. The ocular account was furnished by Muhammad Akram complainant PW-3 and Muhammad Hafeez PW-4. Dr. Zafar Ali Khan, Medical Officer (PW-5) conducted autopsy over the dead body of Fayyaz Ahmad deceased and noted the following injuries:--
1. A lacerated wound 1.5 cm x 0.75 cm muscle deep just below the right eye.
2. An abrasion 3.5 cm x 1 cm on the right fore head.
3. An abrasion 3 cm x 2.5 cm just lateral to right eye.
4. Multiple abrasions measuring 1 cm each on the right cheek.
5. Multiple abrasion measuring .5 cm x .5 cm on the nose.
6. An oval shaped lacerated wound by fire arms measuring (1.5 cm x .75 cm) on the left back of upper chest going deep blackening around and in the wound. Margin inverted, (wound of entrance).
7. A semi circular lacerate wound by fire arms, measuring .75 cm x .75 cm in diameter blow the left lower chest (near the renal area) going deep into the abdominal cavity. Blackening in around the wound. Margin inverted (wound of entry).
8. An oval shaped lacerated wound by fire arms measuring 1.5 cm x .75 lying 1.5 cm below the injury No, 7, going deep into the abdominal cavity, margin inverted, a part of the mesentery was protruded out from the mouth of the wound (wound, of entry).
According to the doctor, all the injuries were ante mortem, probable time between injuries and death was 1 to 2 hours and between death to post mortem was 12 to 18 hours. The cause of death was injury to GIT corresponding to Injury No, 7 and 8 collectively leading to severe bleeding shock and death that was sufficient to cause dearth in ordinary course of nature.
8. The rest of the witnesses are all formal in nature and they made statements about various functions performed by them during the course of investigation. The learned SPP tendered in evidence the report of Chemical Examiner Ex.PN, report of Serologist Ex.PO and report of Forensic Science Laboratory Ex.PP and closed the case for the prosecution.
9. The accused when examined under Section 340(2), Cr.P.C. on a question as to why this case against them and why the PWs deposed against them, all the accused persons made the following similar reply:-- 'It was a blind murder, I have falsely been involved in this case due to previous enmity and suspicion. PWs are inter se related and have deposed falsely just to strengthen the prosecution case."
However, neither the accused appeared in the witness box in terms of Section 340(2), Cr.P.C. nor opted to produce any defence.
10.On conclusion of the trial, above conviction and sentence was recorded against Sarfraz, whereas, rest of the accused were acquitted.
11.Learned counsel for appellant argued both the eye-witnesses namely Muhammad Akram complainant/PW-3 and Muhammad Hafeez PW-4 are closely related to the deceased and also related inter-se. They are chance witnesses and the explanations put-forth by them, were shattered through cross-examination. The learned counsel referred to certain portions from the statements of these PWs to establish glaring contradictions. He added that ocular account does not corroborate with the medical evidence and by referring to the statement of doctor PW-5 and the site plan, submits that Injuries No, 5 and 6 carried blackening around the wounds, as per site plan the distance between the deceased and the accused was about 4-karams (20-feet), whereas, blackening could occur if the fire is made from a distance of 3-4 feet. Further argued that Injury No, 6 is not attributed to any of the accused by the prosecution witnesses and these facts are sufficient to disbelieve their presence at the place of occurrence. It has been argued, that motive could not be proved, although specifically alleged by prosecution, as during cross-examination PW-3 Muhammad Akram admitted that he had satisfied Sarfraz accused regarding innocent of Fayyaz Hussain deceased and he stood satisfied, whereas, PW-4 Muhammad Hafeez did not utter a single word about the motive. The learned counsel submits that prosecution planted the alleged recovery of pistol against Sarfraz accused/ appellant, and even otherwise the same is inconsequential because according to the report of Forensic Science Laboratory the empties recovered from the place of occurrence were not found to have been fired from the pistol allegedly recovered from Sarfraz accused/appellant. Lastly, contends that as on the basis of same evidence three co-accused have been acquitted, therefore, same evidence could not be believed against the appellant without any strong corroborative piece of evidence, whereas, there is not a iota of corroborative evidence in support of ocular ac' aunt is available against Sarfraz accused/appellant. The learned counsel supplicated that the prosecution has miserably failed to prove its case against Sarfraz accused/appellant as such, he be acquitted of the charge.
12.The learned Deputy Prosecutor General assisted by learned counsel for the complainant supported the judgment of the learned trial Court and argued that the learned trial Court rightly believed the prosecution evidence and that the contradictions pointed out by learned counsel for the accused/appellant are only minor and such contradictions are bound to occur when statements of the witnesses are recorded after quite some delay. The learned counsel for the complainant added that except the motive, there was no other enmity between the parties and the motive part was fully established through the statements of the witnesses. He argued that both the witnesses sufficiently explained their presence at the site, which fact is further substantiate by the circumstance that FIR was lodged with promptitude, eliminating the chances of false implication of the accused and the substitution is also a rear phenomena. The learned counsel for the complainant contended that when the prosecution witnesses made consistent statements, the medical evidence or the evidence of recovery are only corroborative material and the weakness of such corroborative piece of evidence would not discard the consistent ocular testimony.
13. We have heard the arguments of learned counsel for the parties at full length and perused the entire record with their able assistance.
14. The entire prosecution case hinges upon:-- (i)Ocular account, (ii)Motive, (iii)Medical evidence, (iv)Recovery, and (v)Reports of Experts.
15. Although, Muhammad Akram' PW-3 and Muhammad Hafeez PW-4 are closely related inter-se and also related to the deceased being his brothers-in-law (BHANOI), but their evidence could not be discarded merely on account of their relationship. According to the prosecution case itself, both these witnesses were present at the place of occurrence per chance and to explain his presence Muhammad Akram complainant PW-3 in the FIR submits that at about 5.00 p.m. he was going to see his grass field and in the way Suhail (given up PW) and Muhammad Hafeez PW-4 met and accompanied him. During cross-examination Muhammad Akram PW-3 admitted that he was going to see grass of Basreen which was ripe and it was spread over an area of 10- kanals, cultivated by Fayyaz Ahmad deceased (Page-40 of the Paper Book). Further admitted that Two days before the occurrence I asked Fiyyaz Hussain regarding the up to date position of the said grass and he replied that the same had riped and. might be cut." It was admitted in cross- examination that in the documents the land was self cultivated and that Muhammad Hafeez as well as Suhail were standing after closing their KHOKHAS, but Hafeez PW-4 during cross- examination stated that "I closed my khokha on the asking of Muhammad Akram PW and asked me to accompany him to his field of Barseen." He also admitted that Muhammad Akram used to visit the said field of and on while passing nearby his KHOKHA and that earlier he was never asked to accompany the complainant. The above reproduced portions from the statement of Muhammad Akram complainant/PW-3 and Muhammad Hafeez PW-4; make it clear that the grass had not been cultivated by the complainant nor it was the land owned by him and furthermore, the deceased also used to tell him about the up date position of the standing crop. On this Specific point during cross-examination admitted that sugarcane field and the grass were visible from road side and that on the day prior to the occurrence at 3.15 p.m. he had seen his grass while passing through the said road. Therefore, the stance taken by the complainant in the FIR about the purpose of his visiting at the site has been negated by the complainant himself when he admitted that neither he was owner of the said land not the grass had been cultivated by him, even otherwise, the complainant has categorically stated that right on the fateful day at about 3.15 p.m. he had seen his grass while passing through the road, therefore, in our view hardly there remained any justification for the complainant to revisit the site just about one and a half hour after his earlier visit. Even PW-4 Hafeez contradicts Muhammad Akram PW-3 by deposing that he closed KHOKHA on the asking of PW-3, while PW-3 stated that Suhail and Hafeez were standing after closing their KHOKHAS. In view of the above situation, the explanations tendered by the witnesses for their presence at the place of occurrence as per chance does not appeal to a mind of common prudence.
16. Further, we observe that according to the prosecution case set out in the FIR, Falak Sher raised lalkara and Sarfraz accused/appellant made a pistol fire shot which hit the left side of belly of Fayyaz, second fire by Bilal also hit the left side of belly of Fayyaz deceased and Abid inflicted Iron Rod blow on the right eye of Fayyaz. The prosecution witnesses have given the distance between the deceased and the accused as 3/4 karams, same distance of the accused from the deceased has been shown in the site map Ex.PA. Dr. Zafar Ali Khan Medical Officer/PW-5 who conducted autopsy had noted eight injuries on the dead body. The Injury No, 1 is lacerated wound just below the right eye, Injury No, 2 is abrasion on right forehead. Similarly, Injuries No, 3, 4 and 5 are lacerations on the right eye, right cheek and nose. Injury No, 6 is fire arm lacerated wound on the left back of upper chest going deep blackening around and it had inverted margins (entry wound).
Injury No, 7 fire arm lacerated wound below the left lower chest, with blackening (entry' wound) and Injury No, 8 is yet another fire arm lacerated margin inverted (wound of entry). Therefore, it becomes quite clear that the injuries contained blackening around, which could only be found when the injuries are caused within a range of three to four feet, whereas, the prosecution witnesses and the site map point out a much more distance between the accused and the deceased. Furthermore, according to the locale and seat of the injuries given by the doctor, the dead body carried three fire arm entry wounds, whereas, according to the prosecution witnesses two fires tone by Sarfraz and second by Bilal) had been fired at the deceased, whereas, Injuries No, 3, 4 and 5 totally remain unexplained. Although it is not expected from common men to give a photographic view and exact seat and locale of the injuries, but when the prosecution witnesses themselves specified injuries to the accused and stated that two fire arm injuries were received on the abdomen of the deceased but they are silent about the third fire shot injury. Once, such an attempt has been made, then any weakness left in their statements is bound to damage the prosecution case. Hence, the ocular account does not find support from the post mortem report and create doubt about the presence of the prosecution witnesses at the place of occurrence.
17. In this case, the occurrence took place on 21.01.2003 at 5.00 p.m., Muhammad Akram complainant PW-3 and Muhammad Hafeez PW-4 took Fayyaz Ahmad on a private DALA to the DHQ Hospital, Muzafargarh, but Fayyaz Ahmad succumbed to the injuries on the way. PW-3 and PW-4 left Suhail (given up PW) at guard of the dead body, went towards Police Station, at 8.00 p.m. near the CIA staff, THANEDAR met the complainant who recorded his statement and Rupt No, 29 dated 21.01.2003 at 8.15 p.m. was written and FIR was registered. The Investigating Officer/PW-7 went to DHQ Hospital, Muzafargarh, where the dead body was lying and as per statement of PW-7, he prepared injury statement Ex.PJ, inquest report Ex.PK of the dead body, handed over the documents and dead body to Sajjad Constable PW 9 for taking the same to mortuary for post mortem examination and then visited the place of occurrence, where necessary proceedings were carried out. The post mortem of the deceased was conducted on 22.01.2003, although the doctor admitted that the dead body was brought in the DHQ Hospital on 21.01.2003. There is no explanation whatsoever on the record that why the post mortem was conducted on 22.01.2003 and that too at 11.15 a.m. after a considerable delay. The post mortem report Ex.PH and the diagram Ex.PH/1, injury statement Ex.PJ and the inquest report Ex. PK on each and every page carry the signatures and stamp of the doctor who conducted the post mortem and each page contains the date 22,01,2003.
This inordinate and unexplained delay in the conduct of post-mortem examination create doubt that FIR was registered with a considerable delay and the time mentioned for registration of FIR is not true, for the same reason the prosecution did not produce Rupt No, 29, registered in this regard.
Both the eye-witnesses claim their presence as per chance at the place of occurrence and the reason advanced by them does not appeal to a prudent mind as discussed, above. All these facts create serious doubt with regard to the presence of the eye-witnesses at the place of occurrence at the relevant time. It appears that the prosecution witnesses reached at the place of occurrence when the incident was over and they got recorded the FIR with deliberations, that is why the post mortem examination was conducted with a delay of about eighteen hours from the time of occurrence and after more than fifteen hours after the dead body had reached at DHQ Hospital, Muzafargarh. Reliance can be placed on the case 'Ali Sher and others versus The State" (2008 SCM R 707) and "Irshad Ahmed versus The State" (2011 SCM R 1190), wherein, it has been held that "Delay in post-mortem examination is' generally suggestive of a real possibility that time was consumed by police in procuring and planting eye-witnesses and in cooking up a story for prosecution before preparing police papers necessary for getting a post mortem examination of dead body conducted."
18.As regards motive, the case of the prosecution is that Sarfraz accused/appellant suspected illicit liaison of Fayyaz deceased with his sister Farzana but, the complainant had himself explained during cross-examination that he had satisfied Sarfraz accused about innocence of Fayyaz and that he stood satisfied, where after, he did not receive any complaint. Whereas, on the point of motive, not a single word has been spoken by Muhammad Hafeez PW-4. Therefore, apart from the statement of Muhammad Akram PW-3 there is no other piece of evidence on this aspect of the matter and even the Investigating Officer stated that during investigation the complainant did not produce any witness in support of evidence of motive. Hence, the prosecution miserably failed to prove the motive as advanced in the FIR.
19.Coming to the evidence of recovery, according to Muhammad Akram complainant PW-3 Fayyaz Ahmad deceased at the fateful time was coming on a bicycle and had a tape-recorder in his hand and he received in that position and fell down. But, astonishingly, when after received information about the occurrence the Investigating Officer reached the place of occurrence, neither any Bicycle nor the tape-recorder was found there, rather both these articles were handed over to the Investigating Officer on the next day i,e, 22.01.2003. Furthermore, neither of these articles had any blood stains. We are afraid, if Fayyaz Ahmad was riding a bicycle and also carried a tape- recorder, in that position he received fire shots and fell on the ground, blood was oozing, then at least the bicycle must have been stained with blood. Hence, the absence of bicycle and the tape recorded at the site at the time when the Investigating. Officer first time visited the place of occurrence and no blood stains having been found thereon, create serious doubt about the prosecution story in this regard. Further, even the report of the Forensic Science Laboratory Ex.PP is in the negative, as it clearly states that crime empties C l and C2 recovered from the place of occurrence had not been fired from the pistol of .30-bore, allegedly recovered on the pointation of Sarfraz accused/appellant. As such, recovery evidence becomes inconsequential in the instant case.
20. 19-A. There are some important principles for appraisal of evidence i,e, (i) FALSUS IN UNO FALSUS IN OMNI BUS, as held by the Hon'ble Supreme Court of Pakistan in the case "Sarfraz alias Sappi and 2 others versus The State" (2000 SCM R 1758), this principle is not applicable in Pakistan,
(ii) Credibility of a witness cannot be treated as divisible, meaning thereby, the evidence disbelieved against some of the accused cannot be accepted against the others; and (iii) When the evidence of a prosecution witness is disbelieved to the extent of some of the accused, for relying the same qua others, is -called "sifting grain from chaff, as held by the apex Court in the case "Iftikhar Hussain and others versus The State" (2004 SCM R 1185). But while applying this principle the prosecution evidence shall pass the hard test of scrutiny and there should be independent and distinct corroborative piece of evidence for recording conviction against an accused, on the basis of evidence which has been disbelieved qua others. Reliance is placed on the case "Feroze Khan versus Fateh Khan, etc." (NLR 1992 Criminal 79). In this case, three of the co- accused persons have already, been acquitted and appeals against their acquittal have been dismissed.
20. As discussed above, the presence of the prosecution witnesses at the place of occurrence is highly doubtful, ocular account is not supported by the medical evidence, inordinate delay in conducting post mortem examination also creates doubt qua the credibility of the FIR, the ocular account has been disbelieved qua three accused by the learned trial Court and appeals against their acquittal have been dismissed by this Court, bicycle and the tape recorder were not found at the place of occurrence when the Investigating Officer for the first time visited the site and when these articles were produced on the next date by the complainant himself the same were not stained with blood and report of Forensic Science Laboratory is also in the negative. All these factors are clear pointer that in this case the prosecution evidence has miserably failed to pass the hardest test of scrutiny. Therefore, we have no doubt in our mind to hold that prosecution has miserably failed to prove the charge against Sarfraz accused/appellant beyond any shadow of doubt. Consequently, we .allow Criminal Appeal No, 345/2004, set-aside the conviction and sentence of Sarfraz accused/appellant and order his immediate release from jail if not required in any other case.
Murder Reference is answered in Negative Sentence of Death is not confirmed