SARDAR MUHAMMAD SARFRAZ DOGAR, J. Khalid son of Abdul Shakoor (since acquitted), Shahid son of Muhammad Azam, Mahboob son of Abdul Ghafoor and Jameel Ahmad son of Muhammad Azam (since proclaimed offender) were tried by the learned Additional Sessions Judge, Kasur, in case FIR No.429/2009 dated 22.06.2009, offence under Sections 302, 109, 148, 149, PPC at Police Station Sadar Kasur for committing Qatl-i-Amd of complainant's Uncle Sardar Munir Ahmad. The learned trial court, vide judgment dated 24.11.2010, convicted Shahid and Mahboob and sentenced as under:- Shahid: Death and to pay Rs.100,000/-, as compensation, to the legal heirs of deceased Sardar Munir Ahmed or in default thereof 6 months SI under section 302 (b) of PPC.
Mehboob: Death and to pay Rs.100, 000/-, as compensation, to the legal heirs of deceased Sardar Munir Ahmed or in default thereof 6 months SI under section 302 (b) of PPC.
2. Feeling aggrieved at the decision, both Shahid and Mahboob (convicts) lodged Criminal Appeal No. 2744 of 2010 against their convictions and sentences. By making a proposal to this Court with Murder Reference No. 642 of 2010, the state is seeking confirmation of death sentence awarded to Shahid and Mahboob (appellants).
3. The complainant namely Saeed Ahmad got diarized Criminal Appeal Nos.2835 & 2838 of 2010 against Khalid son of Abdul Shakoor getting acquitted, as well for enhancement of compensation amounts. We are inclined to dispose of all the above said matters through this single judgment.
4. On the dot, the prosecution case as set forth in the complaint (Ex.PD) lodged by Saeed Ahmad complainant, on the basis whereof formal FIR (Ex.PD/1) was recorded, is that on 22.06.2009 at about 03:00 p.m, he accompanied by Muhammad Sarwar and Shafique Ahmed rode a motorcycle on Depalpur Road destined to reach their village Bahadarpura. One of the paths shot out from main Depalpur road to village Bahadarpura drain. From there, they were much closed to Sardar Munir Ahmad Dogar, uncle of the complainant driving a jeep which turned toward track of drain reaching the village. So, they followed the jeep. The complainant's Uncle slowed down the jeep crossing the bridge. There was a turn near the bridge leading to village, there; a Honda 125-CC motorcycle and a white colored 2-D car without number plates were parked. The jeep was picking up very slow speed, suddenly; the accused namely Muhammad Jamil, Shahid, Mahboob along with three unknown persons, all of them armed with 12 bore guns, egressed there from behind the car The glass window shield of right side was down and when the jeep reached near the accused, Muhammad Jamil fired first gun-shot which landed on the right eye of Munir Ahmad Dogar. Shahid made second gun-shot which stroke on his neck just beneath the right ear. Mehboob made third fire shot on the right shoulder of deceased. The remaining accused fired pellets hitting the jeep's body. The complainant and his companions stood back being terrified seeing the entire occurrence with their naked eyes.
5. The motive alleged was that about six years ago from the registration of present FIR, two persons of the complainant party were murdered by accused Jamil etc. And two brothers of co-accused Shahid were also murdered. Munir Ahmad Dogar (deceased) was nominated as accused in the murder case. A compromise was effected in between the parties by way of paying compensation.
Thereafter, Jamil (accused) left the village for good settling somewhere else. Consequently, the accused nourished the grudge and committed the murder of complainant's uncle Munir Ahmed Dogar.
6. Sabir Ali Shah, SI (PW.5) after having been received written complaint from Saeed Ahmed, PW.12, (EX.PD) chalked out formal FIR (Ex.PD/1). Thereafter, the investigation was entrusted to Muhammad Abbas, SI (PW.16) who visited the place of occurrence preparing injury statement (Ex.PN) and Inquest Report (Ex.PP) of dead body of Munir Ahmad. Manzoor Hussain, constable (PW.3) took the dead body of Munir Ahmad for postmortem examination in DHQ Hospital, Kasur with application (Ex.PQ). He (PW.16) prepared rough site plan (Ex.PR), and took into possession two crime empties of cartridges fired with 12-bore gun (Ex.PI), and blood stained earth from the spot vide memo (Ex.PJ).
He (PW.16) also got recorded the statements of witnesses under Section 161 Cr.P.C. And took into possession a jeep bearing No.LHV-357 (P.9) through memo (Ex.PK), and last worn clothes of the deceased Qameez P.3, Shalwar P.4, Ozarband P.5, Vest P.6 along with a sealed phial P.7 through memo (Ex.PH). Thereafter, on 25.06.2009 Muhammad Nasarullah, Draftsman (PW.2) prepared scaled site plans (Ex.PA) and (Ex.PA/1).
7. Thereafter; the investigating officer Muhammad Abbas, SI (PW.16) was transferred and investigation was handed over to Muhammad Riaz, SI (PW.14), who arrested the accused Shahid and Mahboob on 23.09.2009. Later, investigation came up before Muhammad Ashraf, SI (PW.15) who, during the course of interrogation, led to the recovery of 12-guns, P1 & P2 after disclosure of accused Shahid and Mahboob, and he (PW.15) secured the same through recovery memo (Ex.PF) and (Ex.PG), respectively.
8. During the course of investigation having found the appellants guilty, the investigation officer prepared report under section 173, Cr.P.C. And sent the same to the court of sessions enrooted through Illaqa Magistrate as provided in the Terms of Section 190(2), Cr.P.C. The learned Additional Sessions Judge, Kasur, formally charged sheeted the appellants on 02.07.2010 to which they pleaded not guilty and claimed trial.
9. At the trial, prosecution in order to prove its case produced sixteen witnesses in all. Saeed Ahmad (PW.12) and Shafique Ahmad (PW.13) have furnished ocular account. Sabir Ali Shah (PW.5) chalked out formal FIR. Muhammad Abbas (PW.16) and Muhammad Riaz (PW.14) conducted investigation.
Muhammad Nasarullah (PW.2) prepared scaled site plans. Muhammad Ashraf (PW.15) was a recovery witness.
Doctor Javed Akhtar, MO (PW.6) deposed that he on 22.06.2009 at 06.30 p.m conducted postmortem examination on the dead body of the deceased Sardar Munir Ahmad and observed following injuries on his body:- "1. A lacerated penetrating wound 3 x 2 cm on right eye, blackening was present, margins were inverted, right eye was totally collapsed. (Entry wound).
2. A lacerated penetrating wound 1 1/2 x 1 1/2 cm on right side of neck, on front and lower part with inverted margins, blackening present. (Entry wound).
3. A lacerated wound 1 1/2 x 1 1/2 cm on right side of back of neck on the middle part, five cm below right ear, margin was everted. (Exit wound of injury No.2).
4. A lacerated wound 1 x 1 cm on right shoulder, blackening present. (Entry wound).
5. A lacerated wound 3 x 2 cm on right shoulder half cm to the left of injury No.4. (Exit wound of injury No.4).
6. A lacerated wound 2 x 1 cm below right chin.
On dissection:- Hyoid bone was intact. Brain membrane was injured. Brain matter was damaged severely. Clotted blood was present in the brain. One metallic piece was recovered from cranium cavity which was handed over to police in a bottle which was sealed and signed.
OPINION: In his opinion, the cause of death in this case was shock and injury to vital organ i.e., brain under injury No.1 which is sufficient to cause death in ordinary course of nature. Injury No.1 to 5 were caused with fire arm weapon. All the injuries were anti mortem. Time between injury and death (immediate), and time between death and post mortem examination within six hours approximately. After the P.M.E, a stitched dead body with police papers, post mortem report and clothes and sealed bottle handed over to police. Ex.PE is the correct carbon copy of PMR which is in my handwriting and bear my signature. Ex.PE/1 and PE/2, the diagrams showing the location of injuries, are also in my handwriting and bearing my signature."
10. Rest of the witnesses are of formal in nature, therefore, there is no need to be discussed. The learned DDPP, after giving up Sabir Ali son of Abdal Aziz, Muhammad Sharif son of Muhammad Din on 23.08.2010 and Sarwar son of Abdul Aziz on 29.09.2010, (PWs) being un-necessary and Bahadar son of Khushi Muhammad (PW) on 12.10.2010 being won-over, tendered in evidence reports of Chemical Examiner (Ex.PS), Serologist (Ex.PS/1), FSL (Ex.PT) and (Ex.PU) and closed the prosecution evidence on 28.10.2010.
11. At the conclusion of prosecution evidence, learned trial court recorded the statements of the appellants under section 342 Cr.P.C. As well as the acquitted accused whereby they denied each and every piece of prosecution evidence pleading their innocence.
In reply to question "why this case against you and why the P.Ws have deposed against you"
Shahid (appellant) has stated as under:- "The prosecution witnesses are dead enemy of me. They belong to with Gaggar which is situated at a distance of 6-7 km away from the place of occurrence. The occurrence took place on a abundant road side. The deceased had a large number of enemies. I and my co accused have been involved falsely by the eye witnesses. None had witnessed the above occurrence. As a matter of fact, the above occurrence was reported by Ramzan son of Boota through his mobile phone No.0300-4522915 in P.S Saddar %asur. The above message was recorded in the log book by Muhammad Naeem constable No.4651 on the day of occurrence. After receiving the above wireless message ASP Investigation along with other senior officials of police reached the spot within 10-15 minutes. The complainant and other eye witnesses were not present at the spot; they were later on called from their village.
In year, 2003 my two real brothers had been murdered at the hands of deceased, Saeed complainant and his brother Abbas for which later on, a compromise was effected and the offence was compounded. We were paid a compensation of Rs.20 lac thereafter, my whole family along with my grandfather migrated to village Rampur District Sialkot. Till the day of occurrence, no incident or occurrence took place between both the parties, however, the complainant in a clandestine manner falsely roped me and my co accused in the above case. Neither of the IO found me guilty, however, I and my co accused have been falsely challenged on the instructions of Tariq Saleem Dogar, IG, Punjab who happens to be close relative of wife of the deceased. The I.O also on the direction of I.G, Punjab replaced the wireless message from the judicial file, however, the same is still available on police file. At the time of occurrence I was in village Rampur District Sialkot. I am innocent."
In reply to question "why this case against you and why the P.Ws have deposed against you"
Mahboob appellant has stated as under:- "I belong to village Rampur district Sialkot. At the time of occurrence I was in the above village to prove the above large number of respectables of the areas sworn affidavits. I am innocent, however, I have my written reply for the above question which I filed the same as mark-A along with certified copies of FIR No.298/2008, U/S 13/20/65 A.O P.S Thehsheikhum, 370/97 U.S 392 PPC, P.S Saddar %asur, 387/97, U/S 13/20/65 A.O, P.S Sadar %asur, 758/10 U/S 395 PPC, P.S %ahana Lahore, and I also file certified copies of %hasara Girdawaris. I also file photo copy of log book / wireless message of P.S. Saddar %asur dated 22.6.2009."
They in their defense also produced Muhammad Naeem, 4651/C Police Wireless Operator, as DW.1.
However, after conclusion of trial, except Khalid who was acquitted of the charge, the remaining accused were convicted and sentenced as stated above.
12. Learned counsel for the appellants, after having read the prosecution evidence and statements of the accused under section 342 Cr.P.C. Submits that it was an un-witnessed occurrence. Further submits that all the eye witnesses are inter-se and closely related to the deceased and they were not present at the scene of occurrence, therefore, their testimony is not impartial and they are not reliable witnesses. Adds that there are material contradictions in their statements. It is submitted that no crime empty was recovered from the spot and convicts/appellants have been implicated falsely due to previous enmity with the complainant party. According to learned counsel, the presence of the eye witnesses at the place of occurrence was unnatural and the case was registered after due deliberations and consultations. It is argued that there are material contradictions in the statements of eye witnesses. False recoveries have been planted upon the appellants and the medical evidence negates the version of prosecution story. It is further argued that prosecution has badly failed to prove its case against the present appellants beyond reasonable shadow of doubt; therefore, the appellants are entitled to be acquitted.
13. On the other hand, the learned Deputy Prosecutor General assisted by Mr. Fahad-Ur-Rehman Tipu Zafar, Advocate for counsel for the complainant, who has filed Criminal Appeal .No. 2838 of 2010 for enhancement of compensation awarded to convicts/appellants Shahid and Mehboob and Crl.A.No.2835 of 2010 against acquittal of accused Khalid, submit that the prosecution has fully proved its case against the convicts/appellants to its hilt beyond any reasonable shadow of doubt through ocular account which is fully corroborated by medical evidence. Further submits that motive, as alleged by the complainant in the FIR, has been proved. According to learned counsel, both the parties were known to each other, so there was no question of mistaken identity. The Deputy Prosecutor General supports the judgment of learned trial court, while learned proxy counsel for the complainant prays for enhancement of compensation and conviction of Khalid.
14. We have heard the learned counsel for the parties at considerable length and have gone through the record with their able assistance.
15. The crime report transpires that occurrence took place on 22.06.2009 at about 03.00 pm (noon) within the area of Bahadarpura 7 K.M from Police Station Saddar, Kasur and the application for registration of the case (Ex.PD) was presented by the complainant to Sabir Ali Shah, S.I. (PW.5), wherein; no time was mentioned, on the basis whereof formal FIR (Exh.PD/1) was registered at 4/5:00 P.M, the deceased was taken to DHQ Hospital, Kasur, the distance between the place of occurrence and Police Station is 7 K.M. The statement of Sabir Ali Shah, S.I. (PW-5) further caused doubts on our mind as he (PW.5) admitted in his cross-examination that there was cutting, omission and addition in the application (Exh.PD). He (PW-5) further deposed that it is correct that there is over writing on the word of accused as the accused person on the application (Exh.PD). It is also correct that on the 7th line of back of Exh.PD the words 'we' and 'Muhammad Hanif' are overwritten. He also deposed that in 6th line on the back of Exh.PD word 'party' is deleted, and no time was mentioned at the foot of application (Exh.PD) by the complainant, similarly, in 10th line on the back of Exh.PD, the word 'accused' was changed into 'accused persons' and in 6th line on first page (Exh.PD), the word 'Bahadarpur' is added, and in this sense, no separate note was written in Exh.PD/1 by him with regard to above mentioned cutting in Exh.PD. According to him (PW.5), he (PW.5) did not know if any wireless message regarding this occurrence was received in Police Station Sadar Kasur. He (PW.5) while replying the suggestion, deposed that no wireless message was received in the Police Station that some unknown persons had committed murder of Sardar Munir Ahmed Dogar i.e. With connivance of complainant maneuvered this FIR after preliminary inquiry."
This fact has been rebutted through the logbook (Exh.D1/1) of Police Wireless Station/Post Sadar at Page No.66 dated 22.6.2009 at 18:30 wherein it is written that one Ramzan son of Muhammad Boota resident of Qila Ganja informed through Mobile No.0300-45229221 that some unknown persons on 2-D car hit a person through firearm weapon resulting into his death at the spot, so the police be sent immediately. We have noticed that the above said fact has further been strengthened by Muhammad Abbas, S.I./I.O. (PW.16), who admitted in his cross-examination that "system of wireless was installed at police station Saddar Kasur at the time of occurrence". The time of the report is 15:25 and the occurrence was not witnessed in the manner as prescribed in FIR. This suggestion was put to PW-5 who denied it which clearly shows that the complainant in connivance with police maneuvered the time of the first information report, and for this reason, the time on the application (Exh.PD) was not specifically written.
On the other hand in the postmortem examination report, in the column of "date and time of death" it was mentioned, "time not mentioned". All the above noted contradictions regarding time of alleged occurrence, its reporting time and material irregularities conducted by the Sabir Ali Shah SI (PW-5), constrained us to formulate an opinion in this case that the police registered the FIR after making preliminary investigation. The prosecution has failed miserably to advance any sufficient reason in this regard. Therefore, the same could not be relied upon. Guidance is sought from Iftikhar Hussain and others v. The State (2004 SCM R 1185). In this case, FIR was recorded after deliberations, and in such like cases, the whole investigation, from recording of FIR till finalization, becomes doubtful. Edifice built upon such FIR would fall to ground and render entire case totally unbelievable.
All the above mentioned facts reflected vividly that FIR was lodged with a considerable delay after due deliberation and consultation making preliminary inquiry, which discarded the whole story of prosecution with regard to occurrence as well as presence of eyewitnesses at the spot. Reliance can be placed on the cases of Muhammad Rafique versus The State (2014 SCM R 1698), Muhammad Rafique and others versus The State and others (2010 SCM R 385) and Hadayatullah versus Abdul Hameed and another (1984 SCM R 119).
16. It was observed by us that as per prosecution story the occurrence took place at 03.00 P.M. And the postmortem examination was conducted at 06.30 P.M. By Dr. Javed Akhter (PW-6) after 3 1/2 hours of the alleged occurrence. During postmortem examination, it was found "Rigor mortis was developed" on the dead body of Munir Ahmad, deceased.
Dr. Javed Akhtar (PW-6) opined that time between injuries and death was immediate and time between death and postmortem examination was six hours. The medical evidence contradicted ocular account. It seems to be strange that allegedly the occurrence took place at 03.00 P.M., this fact of delay is further being strengthened from Inquest Report (Ex.PP), as per column No.11 of the inquest report, it has been mentioned by the police officials that blood was frozen and did not mention the number of the first information report on the surface of inquest report which lost the truth-fullness of the prosecution version. In the attending circumstances, we are constrained to the opinion that if probable duration of death from postmortem to be considered within six hours then the death might has been caused in between 11/12.00 am, and this fact does not corroborate the ocular evidence, deposed by the eyewitnesses. These variations speak at volume regarding to the authenticity of prosecution story. The creation of doubt was further supported by the inquest report (Ex.PP), wherein it has been categorically mentioned that the blood was found frozen. Reliance can be placed on the cases of Abid Ali and 2 others versus The State (2011 SCM R 208), Amin Ali and another versus The State (2011 SCM R 323) and Nasima Bibi versus The State through Advocate- General and another (2008 P.Cr.L.J. 613).
Even otherwise, the depositions of both the eyewitnesses (PW-12 & PW-13) before the Court seemed to be very un-natural, as they deposed that they have seen the occurrence from 6/7 karam, and the accused assaulted the deceased on the right side. The jeep was very slow, and after the assault, it was rolled on from mettle road into the ] fields. The eyewitnesses further deposed that they remained at the place of occurrence about 5 minutes but did not try to get the dead body of the deceased out of the jeep leaving the spot, and in their way to Police Station, they stopped their vehicles i.e. Motorcycle to get the fuel, and they remained there for some time despite of the emergency, they did not ask to fill their motorcycle with petrol as early as possible, and waited for their turn. This act of the eyewitnesses also shows their unnatural behavior towards the occurrence.
It is also strange that they fueled their motorcycle from petrol-pump when it was just 2-K.M. Away from the Police Station, which is also very un-natural. The eyewitnesses further deposed that they went to the Police Station, and prepared the application in black and white within 2/3 minutes, and handed it over to the Thandedar for the formal registration of the FIR. As per their deposition, the Thanedar obtained the Register, and chalked out the FIR (Exh.PD/1).The same was read over to them. The mode and manner depicts that the same had been done after making preliminary inquiry with connivance of local police just to strengthen the prosecution case, therefore, the prosecution version is discarded having no reliability.
17. Tersely, in the light of these facts, the medical evidence does not corroborate the ocular account furnished by the prosecution in order to prove its case. The facts, brought on the surface with regard to the occurrence were seriously called in question the veracity of prosecution story speaking at volume that evidence is not of trustworthy and confidence inspiring, as the occurrence was not seen by the eyewitnesses and their presence at the time and place of occurrence is also highly doubtful.
18. As far as the ocular account is concerned, the same has been furnished by Muhammad Saeed (PW-12) and Shafique Ahmed (PW-13). They both i.e. PW-12 and PW-13 in their examination-inchief stated that the occurrence took place in between the city and village and they were present at the time of occurrence as per chance. It is important to note that the occurrence took place at the bridge of a canal near the village Bahadarpura, whereas; eyewitnesses were residents of village Gaggar. PW-12 in his cross-examination admitted that his residence 7/8 K.M. Away from the place of occurrence. He failed to disclose that why he was present at the place of occurrence.
Simultaneously, PW-13 the other eyewitness of the incident also failed to explain his presence at the spot of occurrence, especially, when he admitted in his cross-examination that he is law graduate, and in the days of occurrence, he was busy in making apprenticeship at Awan-e- Adal Lahore.
Therefore, his presence at the time and place of occurrence became highly doubtful. Both the eyewitnesses (PW-12 & PW-13) failed to advance any reasonable justification with regard to their presence at the time and place of occurrence which raised finger on the presence of the eyewitnesses at the place of occurrence. Therefore, the evidence of these P.Ws./eyewitnesses being chance witnesses contained no credence of trustworthy in the attending circumstances of this case, which makes our belief that this is a blind occurrence which was maneuvered to be seen by these P.Ws. Who were actually not present at the place of the occurrence. The ocular account, brought by the prosecution did not establish their case, as the same was based on the testimonies of the chance witnesses having no reason to be present at the place of occurrence. The testimonies of both the eyewitnesses, being chance witnesses, cannot be accepted without a pinch of salt. In this regard we respectfully refer the case law reported as Mst.Sughra Begum and another v. Qaiser Pervez and others (2015 SCM R 1142) wherein the Hon'ble Supreme Court of Pakistan has laid down the following dictum:- "14. A chance witness, in legal parlance is the one who claims that he was present on the crime spot at the fateful time, albeit, his presence there was a sheer chance as in the ordinary course of business, place of residence and normal course of events, he was not supposed to be present on the spot but at a place where he resides, carries on business or runs day to day life affairs. It is in this context that the testimony of chance witness, ordinarily, is not accepted unless justifiable reasons are shown to establish his presence at the crime scene at the relevant time. In normal course, the presumption under the law would operate about his absence from the crime spot. True that in rare cases, the testimony of chance witness may be relied upon, provided some convicting explanations appealing to prudent mind for his presence on the crime spot are put forth, when the occurrence took place otherwise, his testimony would fall within the category of suspect evidence and cannot be accepted without a pinch of salt."
Admittedly, the deceased Sardar Munir Ahmed Dogar was uncle of both the eyewitnesses (PW-12 and PW-13), therefore, their testimonies, being close relatives of the deceased cannot be satisfactorily relied upon. Even otherwise, the comparative analysis of testimonies of both the eyewitnesses Saeed Ahmed (PW-12) and Shafique Ahmed (PW-13) revealed that the evidence of both the witnesses are full of contradictions, and not trustworthy, in view of its intrinsic worth, witnesses would not be able to prove the fact that whether they deposed truth regarding the event.
Their veracity is to be tested from the circumstances of the case. It is settled principle of law that strong, corroborative, and unimpeachable character is required to prove the ocular account. The evidence of both the eyewitnesses (Pw12 & PW-13) were not in line with medical evidence, and other corroborative piece of evidence as the time and manner brought on surface through the test of cross-examination by the said PWs, is also not in line with their statements rendered before the Court. The time of lodging FIR, their (PW-12 and PW-13) presence at the crime scene was without nowhere, especially when the occurrence took place 20 K.M. Away from the village, the jeep of their uncle (chacha) rolled on after the alleged murderers' assault. Whereas in the inquest report (Ex.PP) the investigating officer (PW.16) has mentioned that dead body was lying on the road, which also goes against the ocular account. In these circumstances, we cannot believe the testimonies of the eyewitnesses as gross conflict between the evidence made us conscious about the guilt of appellants, causing serious questions regarding their presence at the scene. In the attending circumstances, the testimonies of both the eyewitnesses (PW-12 & PW-13) are not confidence inspiring. Furthermore, their (Pw-12 & PW-13) relationship with the deceased, as interested witnesses, is sufficient to discard their evidence as not trustworthy and have seen by us with great care and caution, we are of the opinion that their testimonies are not up to the mark to hilt the prosecution case without other independent evidence, this aspect is lacking in this case,
19. We have also noticed that the prosecution has given up Sarwar and Bahadur (P.Ws.) being un- necessary for the reasons best known to them, and as such the prosecution withheld the best available evidence, therefore, adverse inference under Article 129(g) of Qanoone-Shahadat Order, 1984, to the effect that they would not have supported the prosecution case, can fairly be drawn against the prosecution. Guidance is sought from Muhammad Rafique and others v. The State and others (2010 SCM R 385) and Lal Khan v. The State (2006 SCM R 1846). In the given state of affairs, the ocular account furnished by the prosecution in shape of testimonies of PW-12 and PW13 is highly doubtful, and creates doubts with regard to the complicity of the appellants in commission of offence. The guidance has been sought from the judgment of the Hon'ble Supreme Court of Pakistan in cases of Nadeem alias Nanha alias Billa Sher Versus The State (2010 SCM R 949) and Abid Ali and two others Versus The State (2011 SCM R 208).
20. Perusal of the site plan, prepared on the pointation of eyewitnesses, by the draftsman i.e. Muhammad Nasrullah (PW-2) revealed that he (PW-2) has not properly mentioned the places from where the eyewitnesses have seen the occurrence, and from where the unknown assailants have fled away after causing firing on the jeep of deceased Munir Ahmad Dogar.
The distance, from where the firing was caused by the accused upon the deceased, is shown in the site plan was about 8 to 9 feet, but this fact was also rebutted from medical evidence as the injuries which have been landed on the person of deceased were with blackening meaning thereby the fire was shot from the distance not more than three feet which clearly shows that the occurrence has not been seen from where the eyewitnesses are deposed to be seen and creates doubts on their veracity. Even, there is strong contradiction in between scaled site plan prepared by the Draftsman (PW-2) and rough site plan prepared by the Investigating Officer (PW-15). As per inquest, report prepared by the Investigating Officer (PW-15), the dead body was lying on the road but as per the site plan, the body was in the jeep, and the same was rolled over after being assaulted by the appellants, and it has not been made clear that eyewitnesses brought the dead body from the field to the road which is notable contradiction. Reliance can be placed on the cases of Muhammad Ahmad (Mahmood Ahmed) and another versus The State (2010 SCM R 660), Ayub Masih versus The State (PLD 2002 Supreme Court 1038) Muhammad Akram versus The State (2009 SCM R 230), wherein it was held that ocular evidence would be reliable when there are neither material discrepancies nor contradictions between ocular and medical evidence.
21. It was also noted that as many as six injuries (mentioned above) were available on the body of deceased. The Medical Officer (PW-6), during postmortem examination, also observed that signs of "blackening were present" around the injuries No.1, 2 and 4. In the cross-examination, he (PW-6) has deposed that blackening on an injury always caused from less than three feet. Contrary to the above, we have noticed that in the scaled and un-scaled site plans (Exh.PA and Exh.PA/1), prepared on the instructions of the eyewitnesses, the distance in between the accused and deceased was 8/9 feet which speaks at volume, with regard to the presence of the eyewitnesses at the time and place of occurrence. Reliance can be placed on the case of Muhammad Afzal versus The State (2015 P.Cr.L.J. 111).
22. As regards recoveries of two crime empties from the place of occurrence are concerned, we have noticed that the deposition of the Investigating Officer (PW-15) in this regard is not in line with the inquest report prepared by him as in column that anything was to be found near the dead body, the column speaks as 'nil', which reflects that at the time of preparation of inquest report, nothing was recovered from the place of occurrence and the crime empties were planted thereafter. Moreover, the crime empties, sent to Forensic Science Laboratory, were not matched with the guns recovered from the appellants Shahid, Mahboob and Muhammad Jamil, therefore, the recoveries do not carry any weight. Even otherwise, the guns were recovered on the pointation of the appellants from open places but no respectable of the locality was associated for the purpose of recovery as stated by the Investigating Officer (PW-15), therefore, the recoveries do not support the prosecution story, so; it can stand on its own legs and to prove the case of the prosecution. Reliance can be placed on the case of Muhammad Rafique v. The State (2014 SCM R 1698).
23. In so far as the evidence of motive is concerned, no doubt the parties were previous animus and were at daggers drawn to each other, and there were murders committed from both the sides, but a compromise was effected between them six years ago. During the said interregnum, there is no report of any quarrel or assault in between the parties. This fact was also corroborated by the eyewitnesses in their testimonies that the appellants, after effecting the compromise, have left the village for good, and shifted to Rampur Village in Sialkot. In the attending circumstances, there was no occasion for the appellants to nourish a grudge in between six years and even not a single scratch was caused by any of the party for taking the revenge of their grudge. No material evidence in the shape of ocular or documentary evidence was produced to substantiate the motive by the prosecution, it is well established principle of law that once the motive is established by the prosecution, than it has to be proved by the same, otherwise, adverse inference would be drawn, therefore, we are of the view that the motive, as alleged by the prosecution, has not been proved in this case. Although the prosecution is not under obligation to establish a motive in every murder case but it is also well settled principle of criminal jurisprudence that if prosecution setup a motive and fails to prove it, then, it is the prosecution who is to suffer and not the accused. We very respectfully relying on the case of Noor Muhammad v. The State and another (2010 SCM R 97) wherein the Hon'ble Apex Court has emphasized as under:- "It has been held in the case of Muhammad Sadiq v. Muhammad Sarwar (1979 SCM R 214) that when motive is alleged but no proved then the ocular evidence required to be scrutinized with great caution. In the case of Hakim Ali v. The State (1971 SCM R 432) it has been held that the prosecution through not called upon to establish motive in every case, yet once it has set up a motive and failed to establish it, the prosecution must suffer consequence and not the defence. In the case of Ameenullah v. State (PLD 1976 SC 629) it has been held that where motive is an important constituent and is found by the Court to be untrue, the Court should be on guard to accept prosecution story."
24. As far as the other co-accused relating to abetment is concerned, the evidence which has been produced by the prosecution against Khalid co-accused (since acquitted) has already been disbelieved by the learned trial court. The prosecution has failed to advance even a single witness on this material dimension of the case. The ocular account furnished by the prosecution also remained failed to articulate even a single word on the point of abetment, therefore, appeal lodged by the complainant Saeed Ahmed (PW-12) against acquittal of Khalid co-accused has no force.
Learned counsel for the complainant has also remained unable to urge any reasonable ground to interfere in the judgment passed by learned trial Court with regard to acquittal of Khalid co- accused.
25. It is golden principle of law that the Court should let off 100 guilty but should not convict one innocent person. In the case of AyubMasih versus The State(PLD 2002 SC 1048), it has been held by the Hon'ble Supreme Court of Pakistan that:- "It is hardly necessary to reiterate that the prosecution is obliged to prove its case against the accused beyond any reasonable doubt and if it fails to do so the accused is entitled to the benefit of doubt as of right. It is also firmly settled that if there is an element of [ doubt as to the guilt of the accused the benefit of that doubt must be extended to him. The doubt of course must be reasonable and not imaginary or artificial. The rule of benefit of doubt, which is described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". In simple words it means that utmost care should be taken by the Court in convincing an accused. It was held in "The State v. Mushtaq Ahmed" (PLD 1973 SC 418) that this rule is antithesis of haphazard approach or reaching a fitful decision in a case. It will not be out of place to mention here that this rule occupies a pivotal place in the Islamic law and is enforced rigorously in view of the saying of the Holy Prophet (P.B.U.H) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent."
26. After having analyzed the entire prosecution evidence produced by the prosecution in order to prove the charge against the appellants, we are of the considered opinion that the prosecution has miserably failed to prove its case against the appellants beyond any reasonable doubt, so while granting the benefit of doubt, we accept the Criminal Appeal No.2744 of 2010 filed by the convicts/appellants namely Shahid son of Muhammad Azam and Mehboob son of Abdul Ghafoor in toto and set aside their convictions and sentences recorded against them by the learned trial Court vide impugned judgment. The appellants, Shahid and Mahboob are in jail, they shall be released forthwith, if not required in any other case.
27. The death sentences of the appellants namely Shahid and Mehboob are NOT confirmed and Murder Reference No.642 of 2010 is answered in the NEGATIVE.
28. For the above stated reasons, Criminal Appeal Nos. 2838 & 2835 of 2010 filed by the complainant are dismissed.