' SADAQAT ALI KHAN, J.---This single judgment shall dispose of Criminal Appeal No. 442-J of 2010 filed by Nazir Ahmed and Criminal Appeal No. 443-J of 2010 filed by Shabbir Hussain present appellants and Murder Reference No.57 of 2010 sent by the trial court for confirmation of the death sentence of appellants or otherwise as all the matters have arisen out of the same judgment dated 7-12-2010 passed by learned Additional Sessions Judge, Hasilpur District Bahawalpur according to which the present appellants were convicted and sentenced as under:- "(i) Nazir Ahmed was convicted under section 302(b)/34, P. P, C. And sentenced to death for committing Qatl-i-Amd of Abdul Khaliq deceased along with payment of compensation Rs.3,00,000/ - to the legal heirs of the deceased under section 544-A Cr.P.C. And in default thereof further undergo six months S.I.
"(ii) Shabbir Hussain was convicted under section 302(6)/34, P.P.C. And sentenced to life imprisonment for committing Qatl-i-Amd of Abdul Khaliq deceased along with payment of fine Rs.1,50,000 to the legal heirs of the deceased under section 544-A, Cr.P.C. And in default thereof further undergo six months S.I. In case FIR No. 290 dated 28-10-2005 under section 302/34, P.P.C.
Police Station Saddar Hasilpur District Bahawalpur.
2. The facts of the case have been stated by Muhammad Aslam P.W.2 in his statement before the trial court and same statement is hereby reproduced for narration of the facts:-- "About 18 months back, I along with Muhammad Ashiq boarded the truck belonging to Abdul Khaliq from Gujrat because that truck was coming towards Hasilpur on that day. Abdul Khaliq was sitting with us on the seat of Truck. Abdul Khaliq and Nazir Ahmad exchanged hot words during the journey we cooled them down. When we reached Adda Mukhtar Abad at about 10/11:00 pm Vehari Road, Hasilpur he stopped the truck to take tea there. The truck was driven by Nazir Ahmad accused. Another unknown person was also with us as conductor of Truck. When we stopped the truck and alighted from the truck, the unknown person asked Nazir Ahmad to fire at Abdul Khaliq for committing his Qatl-i-Amd. Then Nazir Ahmad accused made a fire shot which hit on the left eye brow of Abdul Khaliq deceased while he was in the truck and we tried to apprehend Nazir Ahmad and his co-accused present in the court but they fled away along with the pistol. Abdul Khaliq succumbed to the injuries at the spot in the truck".
3. After registration of the case, investigation started and on completion of the investigation report under section 173, Cr.P.C. Was submitted in the trial court.
4. Learned trial court after observing legal formalities provided under the Criminal Procedure Code framed the charge on 16-5-2007 against present appellants Nazir Ahmed and Shabbir Hussain under sections 302/34, P.P.C. To which they pleaded not guilty and prosecution evidence was summoned.
5. Prosecution produced Muhammad Rafique complainant P.W.1, Muhammad Aslam P.W.2, Muhammad Ashiq P.W.3, Dr. Rashid Masood Ahmad CMO P.W.4, Ghulam Abbas ASI P.W.5, Ghazanfar Ali Abbas P.W.6, Muhammad Siddique SI P.W.7, Mukhtar Ahmad SI P.W.8, Muhammad Zahid Majeed Inspector P.W.9 and Muhammad Hussain Constable P.W.10 and tendered in evidence FIR Exh.PA, recovery memo of Truck Exh.PB, recovery memo of blood stained foot mate Exh.PC, recovery memo of pistol 30-bore Exh.PD, post mortem report Exh.PE, inquest report Exh.PF, application to M.0 Exh.PG, Superadari of truck slip Exh.PH, recovery memo of last worn clothes of the deceased Exh.PJ, site plan Exh.PK, report of Chemical Examiner Exh.PM, report of Serologist Exh.PN and closed the prosecution evidence.
6. Medical evidence was furnished by Dr. Rashid Masood Ahmad P.W.4 CMO, THQ Hospital Hasilpur, who stated that on 29-10-2005 at about 07:30 am he conducted postmortem examination on the dead body of Abdul Khaliq deceased and observed as under:-- "On 26-10-2005, 1 was posted as CMO, THQ Hospital Hasilpur where 1 received dead body of Abdul Khaliq son of Allah Bakhsh caste veghamal resident of Mauza Veghamal. The dead body was brought by Ghazanfar Abbas-C Police Station Saddar Hasilpur. Body was identified by Ahmad Nawaz and Muhammad Aslam. The dead body was received at 08:00 p.m. And postmortem was conducted on 29-10-2005 at 07:30 a.m. EXTERNAL APPEARANCE.
' It was a dead body of a male of aged about 40/42 years lying supine in postmortem table right eye was closed while left eye project outward and down word having an injury on left eye brow.
Mouth was closed having clotted blood in the mouth and on face and hands especially on left hand. He was wearing light gray colour shirt and Shalwar and white Salooka. All the clothes were blood stained and were handed over to Police. Rigor mortis slightly present and postmortem staining were present on the dependant parts of the body.
EXTERNAL INJURIES.
1.Lacerated wound measuring about 5 cm x 5 cm into going deep bunched in burnt margin with singing of hairs around the wound situated on left eye brow. The brain matter comes out. This was wound of entry.
External examination shows -Lacerated of skin subcutaneous tissues and muscles were responding to injury No. 1 . - Fracture of left frontal and orbital bone. - Fracture of bona left and right parietal bones - Rupture of brain matter badly -Meninges of brains fractures corresponding to wound. -One wad and seven metallic pieces (pellets taken out from the cranial cavity and handed over to police after sealing in a phail along with x-rays of skull.
THORAX.
' All the structure was healthy.
ABDOMEN.
' All the structure was healthy. Small intestine containing chyme and gas while large intestine containing gas and faecal matter. Urinary bladder containing 20 CC urine.
MUSCLES BONE AND JOINTS.
Already discussed.
REM ARKS BY M EDICAL OFFICER.
' After thorough external and internal examination of the dead body, I am of the opinion that above described injury was anti mortem in nature and was caused by fire arm weapon. This injury causes destruction of vital organs i.e. Brain which causes severe haemorrhage shock and death and in this type of injury usually sufficient to cause death in ordinary course of life. Time between injury and death within few minutes while in between death and postmortem was within 24 to 36 hours.
7. On the other hand, statements of present appellants were recorded under section 342, Cr.P.C.
Who refuted the allegations so levelled against them and both the appellants have not opted to appear as a witness under section 340(2), Cr.P.C. And also did not produce their defence evidence and in reply to question "why this case against you and why the P.Ws. Deposed against you?" both the appellants Nazir Ahmed and Shabbir Hussain replied as under:-- "It is a false case. I am innocent. I have been implicated in this case due to enmity. The P. Ws. Have deposed against me at the instance of complainant".
8. After conclusion of the trial, learned trial court convicted the present appellants Nazir Ahmed and Shabbir Hussain with above stated sentences through judgment dated 7-12-2010. Hence this appeal.
9. Learned counsel for the appellants contended that:-
(i) the judgment of the trial court dated 7-12-2010 is against law and facts on the file and is liable to be set aside.
(ii) that the prosecution has failed to prove its case against the present appellants as there are many major discrepancies in the statements of the P. Ws. Further there is conflict between ocular evidence and medical evidence and the learned trial court has convicted the appellants on the basis of surmises and conjectures;
(iii) it is contended that the impugned judgment of the trial court is not maintainable in the eyes of law;
(iv) lastly submitted that appeal may be accepted and the judgment of the trial court dated 7-12- 2010 may kindly be set aside and appellants may be acquitted.
10. On the other hand, learned D.P.G. Assisted by the learned counsel for the complainant has vehemently opposed the appeal and requested for dismissal of the same and submitted that:-
(i) prosecution has proved its case beyond any shadow of doubt against the appellants with solid evidence and prayed for the dismissal of the present appeal.
11. We have heard the learned counsel for the parties and perused the record.
12. The detail of prosecution case as mentioned in FIR Exh.PA recorded on the statement of Muhammad Rafique complainant (P.W.1) real brother of Abdul Khaliq (deceased) has already been given in paragraph No. 2 of this judgment, therefore, there is no need to repeat the same.
13. According to the FIR Exh.PA, occurrence took place on 27-10-2005 at about 10/11:00 p.m. Whereas FIR was registered on 28-10-2005 at about 06:25 pm with an unexplained delay of about 16 hours in the police station on the statement A of Muhammad Rafique P.W.1 real brother of Abdul Khaliq deceased, who admittedly was not eye-witness of the occurrence and the distance between the place of occurrence (in the area of village Hasilpur) and the Police Station (City Hasilpur) is about 06-Km. It is stated in the FIR by the complainant Muhammad Rafique P.W.1 that Muhammad Ashiq P.W.3 informed him at "Dopahir Waila' at his village Wegal regarding the murder of his brother Abdul Khaliq deceased. Muhammad Rafique P.W.1 further stated in cross-examination that Ashiq P.W.3 informed him about the incident when he was present in his field and the distance between his land and house is about 3-miles and Ashiq P.W.3 informed him about the occurrence at about 11:00 a.m. And at that time he was alone in the field and he proceeded from Mouza at about 06:00 p.m. Towards the place of occurrence and from 11:00 am to 06:00 pm, Ashiq P.W.3 remained present with him and they came on 'Dala' towards Hasilpur and reached at Hasilpur at about 06:00/07:00 pm. He further stated that Ashiq P.W.3, Aslam P.W.2 and Ahmad Nawaz were accompanying him in the Dala'. He further stated that he, Ashiq P.W.3 and. Aslam P.W.2 reached at the spot and no police official was present at the spot. He further stated that they all straight went to the place of occurrence at about 08:00 p.m. On 28-10-2005 and stayed there for about half an hour and police reached at the spot at about 10:30 p.m.
14. There is absolutely no plausible or convincing reason for the aforementioned gross delay of more than 16 hours in reporting the matter to the police which has created serious doubt regarding the truthfulness of the prosecution story. The Hon'ble Supreme Court of Pakistan while discussing the issue of delay in lodging the FIR in the case of Mehmood Ahmed and 3 others v. The State and another (1995 SCM R 127) has observed at page 131 as under:-- "Although, in some circumstances a delay of two hours may not be of much importance yet in the facts and circumstances of this particular case as they have happened, the delay has great significance. It can be attributed to consultation, taking instructions and calculatedly preparing report keeping the names of accused open for roping in such person whom ultimately prosecution may wish to implicate".
' Similar view was reiterated by the Hon'ble Supreme Court of Pakistan in the case of Nazee Ahmed v. Gehne Khan and others (2011 SCM R 1473) wherein delay of seven hours in lodging the FIR was considered to be a ground which adversely reflected on the credibility of prosecution version.
15. We have also perused the postmortem report Exh.PE according to which postmortem examination was conducted on the body of Abdul Khaliq deceased on 29-10-2005 at about 07:30 pm whereas according to statement of P.W.4 Doctor Rashid Masood Ahmad the dead body was brought in the hospital on 28-10-2005 at about 08:00 pm and occurrence took place on 27-10- 2005 at about 10/11 pm and Doctor Rashid Musood Ahmed P.W.4 stated in his examination in chief that the time between death and postmortem was within 24 to 36 hours and Muhammad Rafique P.W.1 stated in cross-examination that he was informed by Ashiq P.W.3 on 28-10-2005 at 11:00 am when he was present in his field alone and he along with Muhammad Ashiq P.W.3, Aslam P.W.2 and Ahmed Nawaz reached at Hasilpur at about 6/7 pm. He further stated that he along with Muhammad Ashiq P.W.3 and Aslam P.W.2 straight went to the place of occurrence at about 08:00 pm on 28-10-2005 and stayed there for half an hour and found no police official there.
16. In view of the above, it is concluded that postmortem examination on the dead body of Abdul Khaliq deceased was conducted with the delay of about 36 hours and there is no plausible explanation for the above mentioned delay in the postmortem examination of the deceased. The same delay in postmortem further created serious doubt about the truthfulness of the story of the prosecution. Reliance is placed on case titled lrshad Ahmed v. The State (2011 SCM R 1190) in which.
Hon'ble Supreme Court of Pakistan has observed at page 1193 as under:- "We have further observed that the postmortem examination of the dead body of Shehzad Ahmed deceased had been conducted with a noticeable delay and such delay is generally suggestive of a real possibility that time had been consumed by the police in procuring and planting eye witnesses and in cooking up a story for the prosecution before preparing police papers necessary for getting a postmortem examination of the dead body conducted".
17. Muhammad Aslam P.W.2 and Muhammad Ashiq P.W.3 who are from the 'Brotheri' of Muhammad Rafique P.W.1 real brother of Abdul Khaliq deceased as stated by him in his cross-examination, claimed themselves eye-witnesses of the occurrence and stated that about 18 months back from the date of recording of their statements before the trial court i.e. 16-5-2007, they boarded the Truck belonging to Abdul Khaliq deceased from Gujrat because that Truck was coming towards Hasilpur on that day and Abdul Khaliq deceased was sitting with them on the seat of the Truck and Abdul Khaliq deceased and Nazir Ahmed present appellant exchanged hot words during the journey and due to their interruption, matter was patched up when they reached Ada Mukhtar Abad at about 10/ 11 p.m. Vehari Road, Hasilpur, Truck was stopped to take the tea which was driven by Nazir Ahmed present appellant and another unknown person (Shabbir Hussain) was a cleaner of the Truck and when they alighted from the Truck, the unknown person (Shabbir Ahmed present appellant) asked Nazir Ahmed present appellant to fire at Abdul Khaliq deceased for committing his murder which was made and hit on the left eye brow of Abdul Khaliq deceased when he was in the Truck. In cross examination, Aslam P.W.2 stated that on 26-10-2005 he along with Ashiq P.W.3 went to Gujrat and left Bahawalpur at about 08:00 pm and reached at Gujrat about 06:00 am next day and they met Abdul Khaliq deceased at about 11:00 pm and then proceeded towards Hasilpur and they went there for purchase of electric motor but did not purchase the same as the rate at Gujrat and Bahawalpur was the same. Muhammad Ashiq P.W.3 also stated in cross-examination that Abdul Khaliq deceased met them at road at about 11:00 p.m.
18. Admittedly, Muhammad Aslam P.W.2 and Muhammad Ashiq P.W.3 are not the resident of alleged place of occurrence i.e. Hasilpur District Bahawalpur and they are resident of Mouza Wega Mal Tehsil Kehror Pacca District Lodhran and the distance between Gujrat and Hasilpur is about 539 Km and it takes about more than 06-hours to reach Hasilpur from Gujrat on vehicle and both the above stated P. Ws. Stated in one breath in examination-in-chief that they boarded the Truck from Gujrat and reached Ada Mukhtar at about 10/11 p.m. Vehari Road Hasilpur where Truck was stopped to take the tea and in second breath both the witnesses stated in cross-examination that on 26- 10-2005 they left Bahawalpur at about 8-00 p.m. And reached at Gujrat about 06:00 am on the next day and met Abdul Khaliq deceased at about 11:00 a.m. And then proceeded towards Hasilpur which statements of both the P.Ws. Are contradictory inter se and not acceptable because their time of boarding of Abdul Khaliq deceased at Gujrat is 11:00 pm and at the same time they could not reach at Hasilpur as stated by them in their cross-examination in view of the distance stated by us between Gujrat and Hasilpur.
19. P.W.1 Muhammad Rafique complainant stated in cross-examination that Muhammad Ashiq P.W.3 informed him about the incident in his filed at about 11:00. a.m. On 28-10-2005 when he was alone and he along with Ashiq P.W.3 and Aslam P.W.2 and Ahmad Nawaz reached at Hasilpur at about 6:00/ 7:00 pm and he proceeded from his Mouza at about 06:00 p.m. Towards the place of occurrence and further stated that he, Ashiq P.W.3 and Aslam P.W. 2 reached at the spot where no police official was present at the spot and they all straight went to the place of occurrence at about 08:00 pm on 28-10-2005. Muhammad Aslam P.W.2 and Ashiq P.W.3 both stated in their cross-examination that police recorded their statements at police station at about 11:00 p.m. On 28-10-2005 i.e. On the day of registration of the FIR whereas occurrence took place on 27-10-2005 at about 10:00/11:00 p.m. This shows that the statements of these two witnesses were recorded within explained delay of about 24 hours with an explanation and it is settled law that credibility of a witness is looked with serious suspicion if his statement under section 161, Cr.P.C. Is recorded without offering any plausible explanation and admittedly both these P.Ws. Have not given any plausible explanation regarding the delay stated above. Reliance is placed on case titled Muhammad Khan v.. Maula Bakhsh and another (1998 SCM R 570) in which Hon'ble Supreme Court of Pakistan has observed at page 575 as under:-- "It is a settled law that credibility of a witness is looked with serious suspicion if his statement under section 161, Cr.P.C. Is recorded with delay without offering any plausible explanation".
20. Even otherwise, the sequence of events narrated in their statements is highly improbable and admittedly Aslam P.W.2 and Ashiq P.W.3 are from the 'Brotheri' of Muhammad Rafique complainant P.W.1 as well as Abdul Khaliq deceased and they were also chance witnesses as occurrence in this case had taken place far-away from the houses of the said witnesses as both these P.Ws. Are resident of Mouza Wega Mal Tehsil Kehror Pacca District Lodhran whereas occurrence took place in the area of Hasilpur District Bahawalpur and they had statedly seen the occurrence when they were coming from Gujrat on a Truck owned by Abdul Khaliq deceased after taking lift from Gujrat where they went to purchase electric motor but could not purchase the same due to similarity of the rate of electric motor at Gujrat City and at District Lodhran which explanation is not acceptable and improbable, further Muhammad Rafique P.W.1 complainant stated in cross-examination that Muhammad Ahmad Anjum was the real owner of Truck who obtained the truck on Superdari thus, it is concluded that Aslam P.W.2 and Ashiq P.W.3 alleged eye-witnesses could not establish their presence at the time of occurrence at the place of occurrence being chance witnesses. Reliance is placed on case titled Sajjad Ali v. The State (2009 SCM R 821) in which Hon'ble Supreme Court of Pakistan has observed at page 824 as under:-- "The complainant's presence in her own house in ordinary circumstances, would have been natural. However, on the day of the incident, she had left her house along with her sister at about 1:30 am to visit her brother and according to her, she returned at about 03:00 pm. Her absence from her house for such a long time and return right at the moment when the appellant was about to leave the house after the commission of the crime, would be too much of coincidence to be accepted. Further, her claim that she met her two brothers just in front of the house also creates doubt about the timing. The complainant although claims to have returned to her own house, but in the circumstances, was a chance witness".
21. It is settled principle of law that to believe or disbelieve a witness all depends upon intrinsic value of the statement made by him. Even otherwise, there cannot be a universal principle that in every case interested witness should be disbelieved or disinterested witness be believed, it all depends upon the rule of prudence and reasonableness to hold that a particular witness was present on scene of crime and that he is making true statement. A person who is reported otherwise to be very honest, above board and very respectable in society if gives a statement which is illogical and unbelievable, no prudent man despite his nobility would accept such statement. Further as a rule of criminal jurisprudence, prosecution evidence is not tested on the basis of quantity but quality of the evidence. It is not that who is giving the evidence and making statement, what is relevant is what statement has been given. It is not the person but the statement of that person which is to be seen and adjudged. We, for the above reasons, are of the firmed view that the above two witnesses Aslam P.W.2 and Ashiq P.W.3 who claimed to be present at the scene of crime were not present there and their evidence is not believable and same is hereby disbelieved.
22. Muhammad Rafique P.W.1 stated motive of the occurrence in the FIR Exh.PA that during the journey from Gujrat to Hasilpur, Abdul Khaliq deceased and Nazir Ahmed present appellant had exchanged hot words in the Truck. Admittedly, Rafique complainant P.W.1 is not the eye-witness of that incident and same was told to him by Aslam P.W.2 and Ashiq P.W.3 as stated by him and evidence of Muhammad Aslam P.W.2 and Ashiq P.W.3 has been disbelieved by us in the preceding paras so, motive is also disbelieved.
23. Admittedly, no crime empty has been recovered from the place of occurrence and Ashiq P.W.3 stated in his examination in chief that on 13-10-2006 Nazir Ahmed present appellant during the interrogation disclosed and led to the recovery of pistol 30-bore P-2 which was taken in possession through recovery memo Exh.PD attested by him and Aslam P.W.2. Doctor Rashid Masood Ahmed P.W.4 admitted in cross-examination that the injury on the body of Abdul Khaliq deceased was a pellet injury and thus the recovery of 30-bore pistol in this way is not relevant in the instant case and further recovery of .30-bore pistol P-2 is inconsequential in the instant case in absence of the crime empty and report of Forensic Science Laboratory and learned trial court has already disbelieved this recovery in para No.13 of its impugned judgment.
24. Medical evidence may confirm the ocular evidence with regard to the seat of the injury, nature of the injury, kind of weapon used in the occurrence but it would not connect the accused with the commission of crime". Reliance is placed on case titled Altaf Hussain and others v. Fakhar Hussain and others 2008 SCM R 1103 in which Hon'ble Supreme Court of Pakistan has observed at page 1106 as under:-- "It is also settled law that medical evidence may confirm the ocular evidence with regard to the seat of the injury, nature of the injury, kind of weapon used in the occurrence but it would not connect the accused with the commission of crime"
25. From the facts and circumstances narrated above, we are persuaded to hold that prosecution has badly failed to bring home guilt of the appellants to the hilt and the learned trial court was not justified in convicting them while basing upon untrustworthy/uncorroborated evidence deposed by interested witnesses which even otherwise is full of material contradictions especially unreliable story deposed by Muhammad Rafique complainant P.W.1 Aslam P.W.2 and Ashiq P.W.3. Resultantly, salutary principle of benefit of doubt is extended in favour of the appellants. The Criminal Appeal No.442-J of 2010 filed by Nazir Ahmed and Criminal Appeal No.443-J of 2010 filed by Shabbir Hussain present appellants are accepted and convictions and sentences awarded by the learned trial Court through judgment dated 7-12-2010 are set aside and the appellants are ordered to be acquitted of the charge in case FIR No.290 dated 28-10-2005 under section 302/34, P.P.C. Police Station Saddar Hasilpur District Balhawalpur. They are directed to be released forthwith if not required in any other case. Murder Reference No.57 of 2010 is answered in NEGATIVE and death sentences of Nazir Ahmed and Shabbir Hussain present appellants are NOT CONFIRMED.