' Mrs. Irshad Qaiser, J.--Instant appeal is directed against Judgment dated 29.01.2011, passed by learned Additional Sessions Judge-IV, Nowshera, in case FIR No, 440 dated 26.07.2007 registered u/S. 302/34, PPC at P.S. Risalpur, whereby appellant Muhammad Saeed, was convicted and sentenced u/S. 302-B, PPC to life imprisonment with further direction to pay Rs, 1,00,000/- to the legal heirs of the deceased under Section 544-A, Cr.P.C. And in default to suffer further six months S.I. And the benefit of Section 382-B, Cr.P.C. Was extended to the appellant.
2. Briefly, the facts of the prosecution case are that complainant Muhammad Asad brought the dead body of his brother Hafiz Muhammad Ibrar in Police Station where he reported the matter to Muhammad Javed PW-7 to the effect that he alongwith his brother Muhammad Ibrar were proceeding towards Masjid for Fajar prayer, when they reached near the house of Ghuncha Gul, accused Muhammad Saeed, Fazal Subhan and Saleh already armed with deadly weapons present there, on seeing them the accused party starting firing at them, as a result of firing of Muhammad Saeed (present appellant) his brother Muhammad Ibrar got hit and died on the spot while the complainant escaped unhurt. The motive was alleged as dispute over the womenfolk in between accused and one Ajmal and the deceased Muhammad Ibrar effected compromise in between them to which the accused party was annoyed. The occurrence was also witnessed by Muhammad Nauman and Muhammad Ilyas. On the basis of this report PW-7 registered the case vide FIR ExPA.
3. At initial stage, proceedings under Section 204/87, Cr.P.C. Were initiated against him. After completion of investigation complete challan was submitted in the Court. After doing the needful co-accused were acquitted while he was declared P.O vide order dated 08.07.2009. Subsequently when he was arrested and after the completion of necessary investigation supplementary challan was put in Court. After completion of legal formalities accused was charge sheeted to which he did not plead guilty and claimed trial. In order to prove its case, the prosecution examined eleven witnesses. PW-1 Sher Muhammad IHC, was the marginal witness to the pointation memo. Ex.PW-1/1, PW-2 Muhammad Asad, and PW-3 Muhammad Ilyas were the alleged eyewitnesses of the occurrence and they specifically charged the appellant for the murder of Muhammad Ibrar, PW-4 Khan Bahadar Khan S.I., partially investigated the case, PW-5 Dr. Shahid Ayaz, conducted autopsy of Muhammad Ibrar deceased and has prepared the postmortem report Ex.PW-5/1. PW-6 Rizwanullah was entrusted with NBW of arrest and proclamation notice u/Ss. 204 & 87, Cr.P.C.
Against appellant, PW-7 Muhammad Javed S.I, recorded the report of complainant in the shape of FIR and prepared injury sheet and inquest report of the deceased, which are Ex.PW-7/1 & Ex.PW-7/2, PW-8 Muhammad Nisar and PW-9 Abdul Waris were the marginal witnesses to the recovery memos. Ex.PW-1, Ex.PW-8/2, & Ex.PW-9/1, PW-10 Fazal Rehman S.I, investigated the case, visited the spot, prepared the site-plan Ex.PW-1/2, he also took into possession blood-stained garments of the deceased vide recovery memo. Ex.PW-10/1 and after completion of investigation handed over the case to SHO, PW-11 Shah Madad FC, was the marginal witness to the recovery memo. Ex.PW10/1.
4. After closing the prosecution evidence, statement of appellant was recorded u/S. 342, Cr.P.C. In his statement he denied all the allegations figuring against him in prosecution evidence, professed innocence and alleged false implication. He refused to be examined on oath or produce any defence evidence. After conclusion of the trial the appellant was convicted and sentenced through impugned judgment dated 29.01.2011, the detail of which is given in the first paragraph of this judgment.
5. Learned counsel for the appellant contended that the prosecution badly failed to prove its case against accused. The occurrence had not taken place in the mode and manner as described by the prosecution witnesses. That there is delay of one hours and 15 minutes in lodging the report while the distance between the spot and the Police Station is not more than 2/3 K.M, but the complainant party could not explain the delay of 1.15 hours. They have charged the accused with consultation and deliberation. The deceased was not accompanied with the complainant and other alleged eye-witnesses when he was done to death. That there are material contradiction and improvement in the statements of PWs. Appellant had no motive to commit the murder of deceased nor could the prosecution prove the same advanced by it. The trial Court has made a complete departure from the well settled principles relating to the safe administration of criminal justice and has taken in to consideration irrelevant and inadmissible pieces of evidence, which is bad in law. That the deposition of the complainant and alleged eye-witness Muhammad Ilyas are discrepant and contradicted by medical evidence, the site-plan and other attending circumstances of the case. That major improvement have been introduced by PWs during trial to strengthen the case of prosecution. That no independent eye-witness has been produced to confirm the incident. That at the time of occurrence, there was pitch dark, but lateron bulbs were introduced only for the alleged identification of accused. That the recovery of empty from the spot is planted by 1.0 at the behest of complainant party. No 'weapon of offence has been recovered at the pointation of accused. The pointation memo. Allegedly prepared at the pointation of accused has no legal value. Appellant did not abscond. He was avoided his arrest on account of fear and false implication in the case. It was contended by the learned counsel that from over all analysis of the evidence, it is an unseen occurrence and that complainant and Muhammad Ilyas had infact not witnessed the occurrence but were procured lateron.
6. In rebuttal, the learned AAG controverted the submission of learned defence counsel and asserted that the trial Court with dynamic approach appreciated the entire evidence produced by the prosecution and has rightly convicted the accused/appellant. That the presence of the eye- witnesses on the spot at the time of occurrence was established without any doubt. The motive alleged by the prosecution was fully proved. That though three accused were charged but present accused is charged for effective firing. That there is no reason for the complainant side to spare the actual culprit and to charge the accused. That accused remained absconder and was declared P.O and this fact also corroborate the prosecution story.
7. The case of prosecution is mainly hinges on the following pieces of evidence:- i) Ocular account furnished by PW-2 Asad and PW-3 Muhammad Ilyas. ii) Medico legal report. Iii) Motive. iv) Pointation memo Recoveries. v) Abscondance.
8. According to record three accused were charged u/S. 302/324/34, PPC for firing at deceased and complainant. The complainant escaped unhurt while with the firing of present appellant deceased was hit and died on the spot. During the trial of the accused Fazal Subhan and Muhammad Saleh, the complainant had given concessional statement and admitted that he is not interested to their further prosecution and if the Court acquit their he has got no objection. In their trial other alleged witness Muhammad Ilyas was not examined and on the basis of statement of complainant they were acquitted.
9. In the present case first we have to discuss ocular account furnished by PW-2 and PW-3 and to see whether the evidence produced by them is convincing, truthful and trustworthy. From the perusal of the contents of FIR and the statement of complainant Muhammad Asad it reveals that complainant has not stated that PW-3 Muhammad Ilyas was also going with them to the Mosque for offering Fajar pray at about 04:30 AM while appearing as PW-2 and reiterating the contents of FIR he stated: "On the day of occurrence, I alogwith my deceased brother namely Muhammad Ibrar were going to Mosque for offering Fajar Prayer at about 04:30 AM. When we reached near the house of Ghuncha Gul, the accused facing trial alongwith the acquitted co-accused Fazal Subhan and Muhammad Saleh were present there duly armed with deadly weapons. On seeing us they opened fire upon us and as a result of firing of accused fatting trial Muhammad Saeed my brother was hit and died while I escaped unhurt. Motive behind the occurrence was a dispute over the women folk and strained family relationship. I charged the accused facing trial for the murder of my deceased brother and attempt at my. Life. After the occurrence I reported the matter to the police and upon my report the FIR was registered, which is Ex.PW1/1."
10. In his statement he did not utter a single word about the present of Muhammad Ilyas with them, while PW-3 Muhammad Ilyas gave a different version and stated: "On the day of occurrence, I alongwith Muhammad Ibrar my nephew and complainant were proceeding towards the Mosque for Fajar prayer. When we reached to the spot the accused facing trial and the acquitted co-accused were present there duly armed with deadly weapons. They opened firing upon us, as a result of the accused facing trial namely Muhammad Saeed my nephew Muhammad Ibrar sustained injury and died, whereas we escaped unhurt."
11. Admittedly the complainant had not accompanied the dead body of Muhammad Ibrar to the mortuary for the reasons best known to him. According to prosecution the occurrence had taken place at dark time i.e, 04:30 AM and the complainant had identified the dead body in the light of bulb which were taken into possession through R.M. But in the FIR the identification of accused through bulb has not been mentioned. PWs have stated that they in the company of the deceased were going to Mosque for offering Fajar prayer but the Mosque has not been shown in the site- plan. During the course of their cross-examination they made certain improvement/contradiction, in their statements which negated their presence at the spot with the deceased at the time of occurrence. It is settled law that deliberate and dishonest improvement made by witnesses cost serious doubt on their veracity. Reference may be made to 2010 P Cr.L J 211 Karachi. According to prosecution, occurrence had taken place at 04:30 AM and the report was lodged at 05:45 AM.
Admittedly the distance between the spot and Police Station is 2/3 K.M. The delay of lodging the report has not been explained. Therefore the consultation, deliberation and false involvement of accused could be ruled out. No blood were recovered from the spot inspite of the fact that different vessels of the body including heart of the deceased were injured and the clothes of the deceased were also full with blood but not a single drop of blood was recovered from spot. It also cost doubt that the occurrence had not taken place at the spot which was shown by the complainant. Only one empty was allegedly recovered from the spot but this was not sent to the expert to know the caliber of the weapon. No weapon of offence was recovered from accused. The ocular account furnished by interested witnesses have not been corroborated with independent evidence which is one of the essential requirement in the present facts and circumstances of the case. Thus the presence of eye-witnesses on the scene of occurrence at the time of occurrence appear to be very doubtful. Reference in this respect may be made to 1982 SCMR 41, 2001 PCr.LJ Karachi 845.
Reference may be made to 2010 PCr.LJ Pesh. 1027, wherein it is held:- "Closely related witnesses must be corroborated by independent evidence."
12. All the facts reveals that the prosecution evidence in the shape of ocular account is not trust worthy and did not inspire confidence.
13. The motive attributed for the commission of offence is stated to be disputed over the women folk in between accused facing trial and one Ajmal which was patched up by the deceased in between them. Upon which the accused facing trial was annoyed, resultantly he committed the murder of deceased due to that annoyance. It is settled principle of law that murder may be committed without motive but when motive is alleged it has to be proved. If during trial the same found to be false/not proved, evidence of witness on premises of false motive need to be scrutinized. Reference may be made to the case Habibullah & others vs State (PLD 1969 SC 127).
Reference may also be made to case Muhsmmad Tufail vs State (2010 PCr.LJ 1389 Lahore) wherein it is held: "When motive is alleged but not proved then ocular evidence is required to be scrutinized with great care and caution. Prosecution though not called upon to establish motive in every case, yet once it has set up a motive and failed to establish it, then prosecution must suffer the consequences and not the defence. Where motive is an important constituent and is found by the Court to be untrue, then the Court should be on guard to accept prosecution story."
14. In the present case in FIR the motive for murder is that when deceased effected compromise between accused and one Ajmal the accused became annoyed and committed the murder of deceased. But during the trial the complainant took a different stance and in his examination-in- chief stated:- "Motive behind the occurrence was a dispute over the women folk and strained family relationship."
Moreover no evidence in this respect has been produced. Ajmal is one of the material witness in this respect to prove the motive but he has not been produced.
15. When the ocular account is put in juxtaposition with the post-mortem report of deceased it reveals that the occurrence had not taken place in the mode and manner as disclosed by alleged eyewitnesses. Dr. Shahid Ayaz who had conducted post-mortem examination of deceased was examined as PW-5. He stated:- "On 26.07.2007 AT 06:00 PM, I examined the dead body of the deceased Hafiz Muhammad Ibrar son of Noor-ul-Haq and found the following:-
1. Firearm entry wound size 1/3 x 1/3" left sided upper sided below heart.
' Firearm wound 1/2 X " on the-back at lower chest below mammary marks."
' In cross-examination he admitted: "That when deceased received injury, he was alive for some time. It is correct that if the probable time lapsed between the injury and death and then between the death and post-mortem examination, probably the deceased might have received injury at 04:00 or 04:30 p.m. According to my report Ex.PW5/1 the deceased received one firearm injury on the front side of the body near his heart and one on the back side and both the injuries have got different measurements."
' Record shows that Dr.Shahid Ayaz had given the same statement and detail which was given in his statement recorded u/S. 512, Cr.P.C. At the time of trial of co-accused as well as in his post- mortem report Ex.PW5/1. He has categorically admitted that deceased received one firearm injury on the front side of the body near heart and one on the back side and both the injuries have different measurement and the occurrence had taken place in between the period of 04:00 to 04:30 PM. While according to the alleged eye-witnesses the deceased received one injury and soon after receipt of injury he died on the spot. According to them the occurrence had taken place at 04:30 a.m. This version is in conflict with the testimony of doctor. It is settled law that if medical evidence belies ocular evidence then Court would prefer medical evidence because doctor is not motivated and his finding is based on sure and indisputable scientific theory. Reference may be made to 1990 PCr.LJ 1 Karachi, 2010 Pcr.LJ 1709 Lahore.
16. Prosecution has also relied upon the pointation memo. Ex.PW1/1 vide which the accused made pointation of the spot in the. Site-plan and he also made pointation of Point No, 5 shown his presence there at the time of occurrence. PW-4 Khan Eahader Khan who had prepared the alleged pointation memo. Admitted that both the marginal witnesses of the pointation memo. Are his subordinates. It means that it has not been prepared in the present of elders of the locality and independent witnesses. Admittedly no recovery was effected from the spot at the pointation of accused and the place of occurrence was already known to the prosecution. Therefore in such situation the subsequent pointation of the same by the accused does not advance the prosecution case as it is not a discovery of new facts or circumstances supporting the prosecution version.
Reference may be made to the case Muhammad Riaz & 3 others vs The State (PLD 1994 Pesh; 102).
17. The other piece of evidence against accused is his abscondance. Record shows that though proceeding u/S. 204/87, Cr.P.C. Were initiated against him and after trial he was declared P.0, but in his statement recorded u/S. 342, Cr.P.C. He stated that due to fear of humiliation and disgrace he went into hiding otherwise subsequently he surrendered himself before the local police. If it is presumed that he remained absconder even then it is settled principle of law that abscondance of the accused alone would not be sufficient to justify conviction and that too in murder case.
Reference may be made to the case Muhammad Mumtaz vs. The State (2010 PCr.LJ 1842 Lahore).
18. It is proved from medicolegal report, recovery of blood stained garments and the report of FSL that unfortunately innocent Hafizul-Quran was done to death by firearms weapon but it is not proved that it Was the accused who had committed the murder.
19. The combined study of all the facts and material and after careful appraisal of evidence, judging every aspect of the matter, we are of the view that the prosecution has not been able to prove the guilt of appellant beyond any reasonable doubt. Thus, while extending benefit of doubt, to the appellant, this appeal is allowed. The conviction and sentenced to appellant by learned Additional Session Judge-IV, Nowshera vide impugned judgment dated 29.01.2011 are set-aside and he is acquitted of the charges leveled against him. He be set free forthwith, if not required in any other case.
' These are the detailed reasons for our short order of the even date.