MISS AALIA NEELUM, J.---Ahmad Nawaz son of Fazal Elahi Caste Jat, resident of Chak No,310, JB, Tehsil Gojra, District, Toba Tek Singh (appellant in Crl. Appeal No,1765-2010) along with co-accused Shah Nawaz, Tariq Mahmood and Fazal Elahi (since acquitted) and Sultan Ahmad (since P.O.) being involved in case FIR No,463-2008, dated 18.08.2008, offence under sections 302, 34, 109 P.P.C., registered at Police Station, Sadar Gojra, District, Toba Tek Singh and were tried by Syed Muzaffar Ali Shah, learned Additional Sessions Judge, Gojra. The learned trial court seized with the matter in terms of judgment dated 26.06.2010 while convicting the accused-Ahmad Nawaz under section 302(b)/34 P.P.C., and sentenced to death as Ta'zir with the direction to pay Rs,5,00,000/-as compensation to the legal heirs of the deceased, failing which, further undergo S.I. For a period of six months.
2. Feeling aggrieved by the judgment of the learned trial court, Ahmad Nawaz-appellant impugned the same through filing Crl. Appeal No,1765 of 2010 whereas the complainant being dis-satisfied with the judgment dated 26.06.2010, filed a Criminal Revision No,1030-2010 for enhancement of compensation amount whereas the learned trial Court has forwarded Murder Reference No,410 of 2010 for confirmation of death sentence. As all the matters are arising out of one and the same judgment of the learned trial court, therefore, they are being disposed of through a single judgment.
3. The prosecution story as alleged in the FIR (Ex.PE/1) lodged on the written application of Shaukat Ali (PW-2)/complainant is that on 18.08.2008 at about 7:00 a.m. His brother-Liaqat Ali (since died) had left the village for his Dera on a motorcycle bearing registration No,LWK-310 (CD-70) and when he (Liaqat Ali, since died) reached at northern corner of survey No,10 of square No,88, then suddenly accused-Ahmad Nawaz armed with repeater .12-bore gun along with his co-accused namely Sultan equipped with a carbine .12-bore while riding on a motorcycle, emerged from the side of village, came parallel to the motorbike of deceased-Liaqat Ali and announced to teach him a lesson for prosecuting the cases against them and thereafter accused-Ahmad Nawaz fired which landed next to the knee of right leg of Liaqat Ali (since died) and as a result thereof, he (Liaqat Ali- since died) fell down and then the co-accused, Sultan Ahmad fired upon Liaqat Ali (since died) which also hit at his (Liaqat Ali-since died) right leg as well as on the tank of motorcycle. The complainant and Muhammad Boota were present in a nearby field in order to ease themselves and while seeing the alleged occurrence, they made a noise but the accused persons ordained them not to come forward otherwise they would also be killed. Simultaneously, a passerby namely Mufassal Siddique son of Muhammad Siddique was also going towards his dera on a motorcycle, also witnessed the alleged occurrence. The noise of firing and hue and cry had attracted the people at the site whereupon the accused persons made their escape towards Rajbah KaIler on their motorbike. Thereafter Liaqat Ali (since died) in an injured condition, was boarded in a rickshaw and escorted to the Eye cum-General Hospital, Gojra where he (Liaqat Ali-since died) succumbed to the injuries after few minutes. After leaving the dead body under the escort of Zulfiqar and Rafaqat Ali-PWs, the complainant (PW-2) rushed towards the police station for reporting the incident but at Katchery chowk, he (the complainant) met with Muhammad Yar, S.I. (PW-11) who along with other police officials was on patrolling, there he (the complainant) produced written application (Ex.PE) before Muhammad Yar, S.I. (PW-11), who sent the same to the police station through Liaqat Ali 900/C. It was alleged in the written application (Ex.PE) that the alleged occurrence took place on the instigation of Shah Nawaz, Tariq and Fazal Elahi, who along with Ahmad Nawaz and Sultan were heard by Muhammad Sarwar and Muhammad Abbas while hatching a conspiracy at a tea stall of one Aslam situated outside Tehsil courts compound, Gojra in order to get rid of him (Liaqat Ali-since died).
The motive behind the alleged occurrence is existence of criminal litigation between the parties, which was being prosecuted by him (Liaqat Ali-since died).
5. On the written application of complainant (PW-2), formal FIR (Ex.PE/1) was chalked out by Ikram- ul-Haq, A.S.I., (PW-12) and thereafter, Muhammad Yar, S.I. (PW-11) being Investigating Officer of this case, proceeded to the hospital and prepared injury statement (Ex. PC), inquest report (Ex. PD) and thereafter rushed towards the place of alleged occurrence after leaving the corpse of deceased- Liaqat Ali in the custody of Ghulam Qadir 54/C (PW-10) for postmortem examination. After inspection of place of the alleged incident, he (PW-11) secured bloodstained earth vide recovery memo (Ex.PF), two empties cartridges (P-1/1-2) of .12-bore gun and took the same into possession through recovery memo (Ex.PG). Thereafter the Investigating Officer (PW-11) took into possession motorcycle bearing registration No,LWK-310 (CD-70) (P-4) of deceased-Liaqat Ali vide recovery memo (Ex.PH) and also prepared rough map of the site of alleged occurrence as (Ex.PN), then he (PW-11) recorded the statements of eye-witnesses under Section 101 of Cr.P.C. On the same day, (PW-10) produced the copy of postmortem report along with last worn clothes of deceased-Liaqat Ali i.e, Chadar (P-5) and Qameez (P6) both bloodstained along with a sealed phial. The last worn clothes of deceased were taken into possession by him (PW-11) vide recovery memo. (Ex.PM). On 25.09.2008, Muhammad Azeem, Patwari Halqa (PW-9) prepared scaled site plans (three copies) of the place of alleged occurrence and handed over the same to the Investigating Officer (PW-11) as (Ex.PL & Ex.PL.1/1). On 20.10.2008, he (PW-11) got transferred Ahmed Nawaz and Tariq from District Jail, Faisalabad, effected their formal arrest in the instant case and obtained their transitory remand from the learned Magistrate, Faisalabad. During interrogation on 01.11.2008, the accused- Ahmad Nawaz got recovered repeater .12-bore (P-3) from an iron box lying in a residential room of his house situated at Chak No,310/JB, Gojra and the same was secured by him (PW-11) vide recovery memo (Ex.PJ). The accused-Ahmed Nawaz also got recovered a motorcycle Honda-125 (P-4) which was taken into possession by the Investigating Officer (PW-11) as (Ex.PK) and thereafter he (PW-11) prepared the rough site plan of place of recovery for repeater as well as the motorbike the (Ex.P0). After reaching the police station, the Investigating Officer (PW-11) handed over the sealed parcel of P-2 to the Moharrar for keeping the same in Malkhana for its onward transmission to the office of Forensic Science Laboratory, Lahore.
6. Having found the accused persons guilty, the Investigating Officer prepared report under section 173, Cr.P.C. And sent the same to the court of competent jurisdiction. On 04.12.2009, the learned trial court formally charge sheeted the appellant-Ahmad Nawaz, to which he pleaded not guilty and claimed trial. The prosecution in support of its version produced as many as twelve (12) prosecution witnesses.
7. Ocular account of occurrence in this case has come out from the statements of Shaukat Ali (PW- 2)/complainant, eye-witness namely Mufassal Siddique (PW-3). Dr. Masood Ahmad, Medical Officer, Eye cum General Hospital, Gojra (PW-1), conducted postmortem examination of the dead body of the deceased-Liaqat Ali on 18.08.2008 and found the following injuries on his person:- Injuries.
1-A. A fire arm wound of entry measuring 4.1 x 2.2 cm x DNP on lower most part front right of thigh a lightly towards inner side, just about right knee. Margins were inverted. Blackening was present around the wound. Blood was oozing.
1-B. Multiple exit fire wound 6 in number covering area 12 x 8 cm on lower most part and back of right thigh. Margins were averted. Tissues were coming out. Blood was oozing.
2. A gracing fire arm wound measuring 11.5 x 5.6 cm x muscle deep making tail towards inner side.
Situated on upper most part of upper leg just below back of right knee. All above injuries were KUO. Advised X-ray. Duration of injuries were fresh. All were inflicted by fire arms.
After conducting the postmortem examination, the doctor rendered the following opinion:- Opinion.
"The cause of death in this case was injury No,1 (A and B). Leading to Haemorrhagic shock which was ante-mortem and inflicted by fire arms, sufficient to cause the death in ordinary course of nature. Injury No,2 was also inflicted by fire arms and was ante-mortem and not sufficient to cause death in ordinary course of nature. A WAD and one metallic piece were recovered from the path of injury No,1 (A & B) and handed over to Ghulam Qadir 54/C in a sealed bottle. The probable time elapsed between injury and death was about 1-2 hours while duration between death and postmortem was 10 hours and 10 minutes."
Ex. PA is carbon copy of report of postmortem examination whereas Ex.PA/1 is sketch of injuries."
The statements of remaining prosecution witnesses are formal in nature.
8. The learned Deputy District Public Prosecutor gave up Muhammad Boota, Rafaqat Ali and Muhammad Aslam (PWs) on 25.02.2010 being un-necessary whereas Imran Ali 799/C, Muhammad Sarwar, Muhammad Abbas, Muhammad Ashraf, Muhammad Siddique and Zafar Iqbal (PWs) were given up on 15.05.2010 being unnecessary and thereafter closed the prosecution evidence on the same day after tendering report of Chemical Examiner Ex.PQ, report of Serologist Ex.PR and report of Forensic Science Laboratory Ex.PS.
9. The appellant was also examined in terms of section 342, Cr.P.C., wherein he opted not to appear as his own witness in disproof of the allegations levelled against him in the prosecution version. In response to a particular question why this case against him and why the PWs deposed against him, Ahmad Nawaz-appellant, made the following deposition:- "Shah Nawaz (my brother) had married the daughter of Muhammad Siddique (the real cousin of the complainant). The complainant party had grudge against our family, hence, we migrated from our chak to Faisalabad due to fear of the complainant party. My father Fazal Elahi had leased out his land for cultivation to Faiz ullah Cheema whereas he had been cultivating his land himself since long. We had arranged marriage of our sister named Shabana Kausar at Gojra and did not manage in the village due to severe fear of the complainant party. Nikah Khuwan of the village had performed Nikah at Gojra City. I produced certified copy of Nikah Nama as Ex.DB. We have deep enmity with the complainant party. Shoukat Ali (the complainant) Asmat ullah (his real brother), Mufassal Siddique alias Koka son of Muhammad Siddique (his nephew), Muhammad Siddique son of Barkat Ali, Muhammad Ashraf son of Mubarik, Muhammad Boota and four unknown persons with fire arm weapons abducted my father Fazal Elahi, assault him, tied with the ropes and blacked his face on which FIR. No,82/2004 under sections 324, 342, 337-L(2), 148, 149, P.P.C. Dated 19.03.2004 with Police Station, Sadar Gojra was registered against the accused on the statement of my father. FIR 82/2004 is Ex.DC. On 30.04.2004 case FIR No,141/2004, under sections 506(B), 337-11(2), 148 and 149, P.P.C. Was registered with Police Station, Sadar Gojra on the statement of Muhammad Siddique son of Barkat Ali in which it was alleged that Fazal Elahi, Shah Nawaz, Sultan (my brother) and myself had fired at the door of Muhammad Siddique to commit his murder. 1 produced FIR. NO.97/2006 as Ex.DE. Shoukat Ali PW-2, Muhammad Mufassal Siddique PW-3 and Mujahid Ali son of Muhammad Malik have strong enmity and there is no litigation against Liaqat Ali deceased. The PWs had not tried to search and locate the real culprits but roped us just to take revenge of their previous enmity with us. The witnesses are related to the deceased and as well as inter se. The complainant party has a strong motive to involve us fictitiously and falsely. The prosecution party had also tried to involve Faiz Ullah Cheema and Muhammad Afzal, who were ultimately declared innocent. I and the co-accused have been involved in the case just on suspicion and for satisfying their revenge. I am innocent, "The witnesses are related to the deceased as well as inter se and have strong enmity against me and the co-accused which detail has been given in answer of question No.10. "
10. The learned trial court after evaluating the evidence available on record in light of arguments advanced from both sides, found the prosecution version proved beyond shadow of reasonable doubt resulting into conviction of the above stated appellant in the afore said terms.
11. We have heard the learned counsel for the parties as well as the learned Law Officer and have gone through the evidence on record.
12. On perusal of FIR (Ex.PE/1), it reveals that the same was lodged at 9:15 a.m. On 18-08-2008 and postmortem examination was conducted by Dr. Masood Ahmad (PW-1) on 18-08-2008 at 5:55 p.m.
With delay of ten (10) hours and ten (10) minutes. If FIR was lodged at 9:15 a.m., then delay in conducting the postmortem examination was not explained by the prosecution. Fact, however, remains that the postmortem examination was delayed for ten (10) hours and ten (10) minutes. On perusal of injury statement (Ex.PC) it reveals that the police papers were received at 5:50 p.m. By Dr. Masood Ahmad (PW-1). Dr. Masood Ahmad (PW-1) during cross-examination deposed that, "The post mortem was conducted after receiving the police papers. However, this reason has also not been mentioned in Ex.PB." Absence of the FIR description in the Inquest Report (Ex.PD) and non- mentioning of the timing and the date regarding receiving information of the incident also lead to the conclusion that the FIR was recorded with a. Delay and the FIR had not been recorded at the time at which it is claimed to have been recorded. Considering all these facts we have no hesitation in coming to the conclusion that the prosecution has not been able to prove on record that the FIR was recorded at the time at which it was claimed to have been recorded. The Hon'ble Supreme Court of Pakistan in the case of "Irshad Ahmed v. The State" (2011 SCMR 1193) held that:- "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 post-mortem examination of the dead body conducted. "
13. According to the prosecution, the incident took place at 7:00 p.m. On 18.08.2008 and the injured- Liaqat Ali was shifted by the prosecution witnesses to the Eye-cum-General Hospital, Gojra at 7:20 a.m., where the injured succumbed to the injuries at 7:45 a.m., while the matter was reported to the police on the same day at 9:00 a.m. At "Katchery Chowk", although inter se distance between the place of occurrence and the police station is only 8-Miles. Muhammad Yar S.I., Investigating Officer, (PW-11) admitted during cross-examination that Katchery Chowk is situated at a distance of one kilometer in Eastern side of Govt. Eye-cum-General Hospital, Gojra whereas police station Sadar Gojra is located at distance of about 100 yard in Western side of the hospital. Whereas, the complainant deposed that after leaving the dead body with Zulfiqar and Rafaqat Ali PWs, he (the complainant) left for the police station to report the matter. The facts are that a computerized application (Ex.PE) was presented by the complainantShaukat Ali (PW-2) to Muhammad Yar S.I.
(PW-11) is entirely in opposite direction of the police station and it suggests that the complainant- Shoukat Ali (PW-2) has not directly gone to the police station for lodging the FIR (Ex.PE/1). The Hon'ble Supreme Court of Pakistan in the case of "Allah Bachaya and another v. The State" (PLD 2008 SC 349) held that:- "In the instant case, the FIR was not recorded at the police station. It has been held time and again that FIRs which are not recorded at the police stations suffers from the inherent doubt that those were recorded at the spot after due deliberations."
14. The First Information Report, in this case, was lodged after a delay of two hours from the time of incident and with delay of one hour and fifteen minutes from the time of death of Liaqat Ali- deceased, without any explanation. Delay in lodging the First Information Report gives rise to the adverse inference, that the same was utilized for false implication of the accused, concoction of story and introduction of false witnesses. It is always insisted for prompt lodging of FIR in respect of the occurrence along with information regarding names of actual accused, role played by them and mode and manner of occurrence. Delay in lodging the first information report, quite often results in consultation and deliberation, which is a creature of afterthought. The prosecution failed to explain the delay in reporting the incident though the Po'ice Station was only at a distance of eight miles. Hence this circumstance was taken, as the one, to raise considerable doubt, regarding the veracity of the case, and it was held that it was not safe to base conviction. Unexplained delay of reporting the incident in lodging the first information report proves fatal to the case of the prosecution.
15. Another important aspect of the case which cannot go un-noticed is that while lodging the crime report as well as while making statement in court the complainant-Shoukat Ali (PW-2) and Mufassal Siddique (PW-3) stated that they shifted Liaqat Ali in injured condition to the Eye-Cum- General Hospital, Gojra, which was belied by Dr. Masood Ahmad (PW-1), as according to him, the deceased was shifted to the hospital in injured condition by Mohsin Ali son of Liaqat Ali, on 18.08.2008 at 7:20 a.m. This fact also gets support from the Medico legal Certificate Ex.PA. On perusal of Medico legal Certificate it reveals that Mohisn Ali is son of the deceased (then injured).
The complainant-Shoukat Ali (PW-2) deposed that he along with Muhammad Boota (given up PW) witnessed the occurrence and Mufassal Siddique (PW-3) also witnessed the same. However during cross-examination he deposed that, "The noise attracted the other people at the site as well. They also witnessed the occurrence." The complainant-Shoukat Ali (PW-2) and Mufassal Siddique (PW- 3) do not depose that Mohsin Ali son of Liaqat Ali was also attracted at the spot. Whereas medico legal certificate of injuredLiaqat Ali suggest that he was brought to hospital by his son Mohsin Ali and certificate/undertaking was signed by Muhammad Abbas. Hence, in this background if the complainant-Shoukat Ali (PW-2) and Mufassil Siddique (PW-3) would have been present at the spot at the time of incident, when the deceased (then injured) received fire shots, then they would have shifted the deceased in injured condition to the hospital. The case of the prosecution is that the complainant-Shoukat Ali (PW-2) and Mufassal Siddique (PW-3) shifted the deceased in the injured condition to the hospital. Dr. Masood Ahmad (PW-1), also opined that the probable time elapsed between injury and death was about 1 to 2 hours. The bare perusal of above statement of the doctor would show that duration between injury and death was 1 to 2 hours according to the FIR (Ex.PE), the deceased had died after few minutes on reaching hospital. As such, there is conflict between the medical and oral evidence. This fact creates doubt in the prosecution case as well, as on the credibility and truthfulness of the statements of Shoukat Ali (PW-2) and Mufassal Siddique (PW-3). Therefore, we do not think it safe to rely on the evidence of these eye-witnesses i.e, Shoukat Ali (PW-2) and Mufassal Siddique (PW-3). This also creates doubt about the genuineness of the version given by the complainant (PW-2) and Mufassal Siddique (PW-3). It is by now well settled law that medical evidence can only indicate that the deceased had lost his life due to certain injuries but it does not lead to the culprits. Reliance is placed on the judgment of august Supreme Court of Pakistan in the case of "Mursal Kazmi alias Qamar Shah and another v. The State" (2009 SCM R 1410); wherein it was held as under:- "---Medical evidence had only indicated that the deceased had lost his life due to fire-arm injury, but it did not lead to the culprits---No crime-empties having been recovered from the spot, recovery of fire-arm from the accused was inconsequential---Accused were acquitted in these circumstances.
16. There is another very important circumstance, which goes to prove that the occurrence remains witnessed. It is also the case of the prosecution that Liaqat Ali (the deceased) proceeded from the village to his Dera through a motorcycle bearing registration No,LWK-310 (CD-70) towards Rajbah Kaller. When Liaqat Ali (the deceased) reached one square from the village i.e, square No,88, killa No,10, Ahmad Nawaz accused armed with .12-bore repeater and Sultan accused (P.O.) armed with carbine 12-bore also emerged there on their motorcycle from the village side and came parallel to Liaqat Ali (the deceased). They raised Lalkara that they had come to teach lesson to him (Liaqat Ali) for pursuing the case against them. Thereafter Ahmad Nawaz (the appellant) fired with his .12 bore repeater which hit on the right leg near knee of Liaqat Ali upon which he (Liaqat Ali) falls down.
Whereas the Medico legal Certificate Ex.PA and post mortem report Ex.PB reveals that the Liaqat Ali deceased had been shot at lower most part from right of thigh slightly towards inner side, just about right knee and a wad and foreign metallic piece was recovered from the path of injury Nos.
1-A and 1-B same was sealed in a bottle and handed over to Ghulam Qadir 54/C. Had the accused Ahmad Nawaz been sitting on the motorcycle behind the accused Sultan (P.0) on the pillion seat (as claimed by PW-2) and made fire at his (accused Ahmad Nawaz) lift on Liaqat Ali then the bullet has to enter from outer side of right knee or thigh instead of entering from slightly inner side of right knee. Dr. Masood Ahmad (PW-1) admitted during cross-examination that, "injury Nos.1-A and 1-B can be caused when the assailant is quite in front of the injured." The conflict between medical evidence and ocular testimony was so serious that it travelled to the root of the matter and knocked the bottom of the case of the prosecution. Reliance is placed on the ratio decidendi of august Supreme Court of Pakistan in the case of "Muhammad Tufail v. The State" (PLD 2002 SC 786); wherein it was held as under:- "Ocular evidence would be reliable when there are neither material discrepancies nor contradictions between ocular and medical evidence. "
17. We have noted that Dr. Liaqat Ali (PW-1) who conducted postmortem of the dead body of the deceased-Liaqat Ali recovered a wad and foreign metallic piece was recovered from the path of injury Nos. 1-A and 1-B same was sealed in a bottle and handed over to Ghulam Qadir 54/C. We have noted that the said metallic body was neither sent to the Forensic Science Laboratory for its comparison with the gun .12-bore repeater P-3 recovered on the pointing of the appellant nor was the same exhibited in evidence of the prosecution. Thus, it was established from the evidence of Doctor Masood Ahmad (PW-1) that metallic body was recovered and the same was handed over to the police, therefore, an adverse inference is to be drawn within the meaning of Article 129(g) of Qanun-e-Shahadat, 1984 that had the metallic body, been sent to Forensic Science Laboratory for its comparison then the said report would have been un-favorable to the prosecution. Reliance is placed on case reported as "The State and others v. Abdul Khaliq and others" (PLD 2011 SC 554).
18. As regards the recovery of the gun 12-bore repeater P-3, the only incriminating evidence, on the disclosure and pointing of the appellant-Ahmad Nawaz and positive report of Forensic Science Laboratory (Ex.PS) is concerned, we have noted that the gun .12-bore repeater P-3 was recovered on 01-11-2008 from his deserted house situated at Chak No, 310 J.B and same was secured through recovery memo Ex-PJ was deposited with the Moharrar of Police Station for its safe custody in the Malkhana on 01-11-2008. Even no evidence on record was available to show that the gun .12-bore repeater P-3 recovered on 01-11-2008 from the appellant-Ahmad Nawaz was same handed over to Muhammad Ilyas MHC (PW-6) on 02-11-2008. There is no link evidence adduced in this case to find that the gun .12-bore repeater P-3 was handed over by the investigating officer (PW-11) for safe custody to Muhammad Ilyas MHC (PW-6) on 01-11-2008. This unexplained delay of one day is fatal and the chances of tampering with the prosecution evidence cannot be ruled out as the case property was not deposited in the safe custody of Malkhana and it remained with the investigating officer (PW-11). This further creates a doubt and the prosecution story weakens. We are, therefore, of the view that the recovery of gun .12-bore repeater P-3 and positive report of Forensic Science Laboratory (Ex.PS) are of no avail to the prosecution.
19. There has been a dishonest attempt by the prosecution to improve the case against the appellant-Ahmad Nawaz. The prosecution witnesses Shoukat Ali (PW-2) and Mufassal Siddique (PW-3) made dishonest improvement in prosecution story to bring the prosecution case in line with the report of Francis science laboratory (Ex.PS). Both prosecution witnesses claimed in the court statement that Ahmad Nawaz accused also made aerial firing to threaten them. Contrary to this during cross-examination Shoukat Ali (PW-2) deposed that, "while lodging the complaint Ex:PE, I did not mention about making of aerial firing." Whereas Mufassal Siddique (PW-3) deposed that, "I stated in my statement under section 161, Cr.P.C. That Ahmad Nawaz made aerial firing. Confronted with Ex.PA wherein so has not been recorded. " The improvements which amount to contradictions in material particulars i.e, go to the root of the case and materially affect the core of the prosecution's case, render the testimony of the witnesses liable to be discredited. The Hon'ble Supreme Court of Pakistan in the case of "Muhammad Rafique and others v. The State and others" (2010 SCM R 385) wherein it has been held as under:- "This Court in the case of Saeed Muhammad Shah v. State 1993 SCMR 550 observed that if a witness improves his statement on material aspects of the case then such improvement is not worthy of reliance and the evidence of such witness requires corroboration. In the case of Khalid Javed v. State 2003 SCMR 1419 while reiterating the above rule, it was further observed that such witness is to be considered to be wholly unreliable and it is not advisable to place explicit reliance upon his evidence."
20. It is settled law that conviction can be based on evidence which is put to the accused in the statement his examination under section 342, Cr.P.C. However, if any piece of evidence is not put to the accused in the statement his examination under section 342, Cr.P.C., then it cannot be used against the accused. No questions regarding the motive as set down in the FIR (Ex.PE/1) and making of aerial firing by the appellant as stated by the prosecution witness in the court statement was not put to the appellant-Ahmad Nawaz in his examination under section 342, Cr.P.C. To obtain this explanation. We are of the view that when important incriminating circumstance was not put to the accused during his examination under section 342, Cr.P.C. Prosecution cannot place reliance on the said piece of evidence. So this piece of evidence cannot be used against the appellant for convicting him.
21. Moreover, both prosecution witnesses Shoukat Ali (PW-2) and Mufassal Siddique (PW-3) are related and interested witnesses. The complainant-Shoukat Ali (PW-2) admitted during cross- examination that, "along with southern wall of our house, room of mine and Azmat are situated adjacently. In front of our room, there is room of Liaqat Ali. Along with the street there is a Baithak and bath room." Shoukat Ali (PW-2) also admitted that Liaqat Ali (the deceased) is his brother and Muhammad Siddique hails from his family and caste and his daughter named Shamaila eloped with Shah Nawaz the accused and married with him in the year 2003. Whereas Mufassal Siddique (PW-3) admitted during cross-examination that Shamaila is his sister. We do not find any special reasons for the witnesses to be present at the place of occurrence at the time of incident. Both eye-witnesses were not only related to the deceased but they were also chance- witnesses. Their presence at the place of occurrence is doubtful in the circumstances mentioned above.
22. As far as recovery of the motorcycle used in the offence is concerned. The number of the motorcycle used in the offence has not been noted down by any of the eye-witness and therefore, we hereby hold that the prosecution has miserably failed to connect the above said motorcycle with any of the accused or with the offence. In the circumstances no corroboration to the ocular account was available from the recovery of the motorcycle used in the offence and same is of no consequence.
23. From the facts and circumstances narrated above, we are persuaded to hold that the prosecution had not been able to prove its case against the accused beyond shadow of doubt as there were many dents in the prosecution story. In the present case, the possibility of the occurrence being not witnessed by both prosecution witnesses cannot be ruled out, as such the conviction and sentence recorded by the learned trial court cannot be sustained. Reliance has been placed on the case reported as "Muhammad Akram v. The State" (2009 SCMR 330) wherein the Hon'ble Supreme Court of Pakistan held that:- "Even single circumstance creating reasonable doubts in a prudent mind about the guilt of the accused makes him entitled to the benefit, not as a matter of grace and concession but as a matter of right. "
24. The unreliable recoveries made in this case, the failure of the prosecution to establish that the weapon of offence, alleged against the appellant, and more importantly delay in conducting post mortem, and the delay in recording the FIR, as is apparent from a careful reading of the evidence, the failure to hold the inquest within reasonable time, and corresponding absence of any explanation, all cumulatively throw doubts about the credibility of the prosecution story. For these reasons, we are of the opinion that there is insufficient material to conclude that the appellant was guilty of committing the offence he was charged with. The findings recorded by the learned trial court, therefore, require to be, and are set aside.
25. We, therefore, accept in toto Criminal Appeal No,1765 of 2010 filed by Ahmad Nawaz, appellant, as a result where of, conviction and sentence recorded by the learned trial court vide judgment dated 26-06-2010 is set aside and the appellant-Ahmad Nawaz is ordered to be acquitted of the charge in case FIR No,463 of 2008 dated 18.08.2008, under sections 302, 34, 109, P.P.C., at Police Station, Sadar Gojra, District, Toba Tek Singh and Ahmad Nawaz son of Fazal Elahi, Caste Jat, resident of Chak No, 310, JB, Tehsil Gojra, District, Toba Tek Singh is directed to be released forthwith if not required in any other case,
26. Murder Reference No,410 of 2010 forwarded by the learned trial court for confirmation of sentence of death inflicted, upbn the convict fails, which is answered in NEGATIVE,
27. So far as Criminal Revision No,1030 of 2010 filed by the complainant,_ namely Shoukat Ali for enhancement of compensation awarded by the learned trial court is concerned, for the reasons afore-stated, the same is devoid of any legal force, which is accordingly dismissed.