Sardar Muhammad Sarfraz Dogar, J:-Sabir son of Faza appellant was convicted for an offence under section 302 (b), PPC as Taz'ir, vide judgment dated 31.01.2012 rendered by the learned Additional Sessions Judge, Rahim Yar Khan and was sentenced to death for committing 'qatl-i- amd' of Ashiq Hussain deceased with direction to pay a sum of Rs. 2,00,000/- to the heirs of the above-said deceased by way of compensation under section 544-A, Cr.P.C. and in default of payment thereof to further undergo six months. He was also convicted under section 148 PPC and sentenced to undergo two years R.I. and benefit of section 382-B, Cr.P.C. was also extended to him.
Sabir appellant has challenged his conviction and sentence before this Court through the instant Criminal Appeal No. 56 of 2012 which has been heard by us alongwith Murder Reference No. 15 of 2012 sent by the learned trial court under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death passed by the learned trial court against Sabir appellant. We propose to decide both these matters together through the present consolidated judgment.
2. Concisely the facts of the prosecution case setup in the F.I.R (Ex. PA) got lodged by Waheed Murad complainant (PW-1) are that he was resident of Mouza Puran and was working in a showroom with the name of "Nawaz Motors" at Khan Pur Road, Rahim Yar Khan. He was residing temporarily at Gulshan-e-Iqbal, Rahim Yar Khan. On every Friday being holiday, he used to go to Mauza Puran to see his parents. On the day of occurrence, he (complainant) alongwith Liaqat Ali, Shakir (P.W-10) and Jamil came to Mauza Puran to see his parents, where Ashiq Hussain (deceased) alongwith his wife Mst. Gul Naz, who were living at Karachi having close relationship with the parents of the complainant had also come to see them. As soon as they intended to leave for Rahim Yar Khan, Ashiq Hussain (deceased) and his wife also became ready to go with them.
The complainant, Liaqat Ali and Shakir (PW-10) maternal nephew of the complainant boarded on a Daala bearing Registration No. DR/6080, which was being driven by the complainant, whereas, Ashiq Hussain (deceased), Mst. Gul Naz and Jamil Ahmad (PW-9) boarded on a car bearing Registration No. PG/9071 and the said car was being driven by Jamil Ahmad (PW-9) paternal cousin of the complainant.
At about 8.00 p.m. when they boarded on the above-said vehicles reached near the dera of Zahid Khan within the limits of Chak No. NP/63, suddenly, from the road side, Muhammad Nawaz (since P.O), Sabir (appellant) and Fayyaz Ahmad (since P.O) all armed with rifles, Haq Nawaz armed with pistol, Nazir Ahmad armed with soti, Fida Hussain armed with pistol, Shakoor and Irshad armed with hatchets emerged alongwith the road side and got them alighted from the vehicles at gun point.
Muhammad Nawaz (since P.O) raised a lalkara to teach them a lesson for sending Mst. Safia Bibi his wife to Darul Aman and all of them should not be left alive. Within their views, Muhammad Nawaz (since P.O) Sabir (appellant) and Fayyaz Ahmad (since P.O) made straight firing with their respective rifles at Ashiq Hussain (deceased) and all the three fires landed under the armpit of Ashiq Hussain (deceased), who fell down. Haq Nawaz made pistol fire which hit Jamil paternal cousin of the complainant on the shin of his right leg. Fida Hussain also fired with pistol hitting Shakir paternal nephew of the complainant on his left shin. When they tried to apprehend the accused, they pointed firearm weapons and said that if anybody would come near to them, he would not let him alive. On hearing the sound of firing as well as the hue and cries, the people from the locality attracted to the spot, whereas, the accused persons on seeing them coming fled away while making aerial firing. They attended the injured, but Ashiq Hussain succumbed to the injuries at the spot.
The motive behind the occurrence was alleged to be that Mst. Safia Bibi wife of Nawaz accused (since P.O) being angry with her husband after filing a suit for dissolution of marriage at Bahawalpur had gone to Darul Aman and the accused had suspicion that they (complainant party) had sent her to Darul Aman after filing suit for dissolution of marriage. Due to this grudge, the accused Muhammad Nawaz, Sabir, Fayyaz Ahmad, Haq Nawaz, Nazir Ahmad, Fida Hussain Shakoor and Irshad in consultation with each other and on the instigation and abetment of Bashir Ahmad and Murad Mai had committed murder of Ashiq Hussain (deceased) while firing, whereas, Jamil Ahmad and Shakir injured were taken to Hospital on Daala (Toyota Hilux) at Mianwali Qureshia.
3. Initially the investigation of this case was conducted by Feroz Ahmad, Inspector/SHO (PW- 11) and during the investigation, the dead body of the deceased was inspected, injury statement and inquest report were prepared, statements of the witnesses under sections 161 Cr.P.C. were recorded, the place of occurrence was inspected, blood-stained earth was secured, rough site- plan of the place of occurrence was prepared, the dead body of the deceased was sent to the mortuary for autopsy, the last-worn clothes of the deceased were received, formal site-plan of the place of occurrence was got prepared, injuries statements of Shakir Sultan PW and Muhammad Jameel were prepared, car and Dala were taken into custody vide recovery memos Ex. PD and Ex.
PC, statements of the recovery witnesses were recorded, pieces of bangles from the place of occurrence were also taken into possession vide recovery memo Ex. PH, proclamations under section 87, Cr.P.C. against the absconding accused were got published. On 17.3.2008, investigation was entrusted to Jam Muhammad Jameel, S.I. (PW-12), who on 27.3.2008 formally arrested the appellant and on 28.3.2008, on the disclosure of the appellant rifle (P.11) was taken into possession alongwith three live cartridges (P.12/1-3) vide recovery memo Ex. PI and after completion of the investigation a challan was submitted in the Court.
4. At the commencement of the trial the learned trial court after supplying copies of the documents required under section 265-C, Cr.P.C. to the appellant framed the charge against him on 10.3.2011 to which he pleaded not guilty and claimed a trial.
5. During the trial the prosecution produced as many as thirteen witnesses in support of its case. The ocular account of the incident in question was furnished by Waheed Murad complainant (PW-1), Muhammad Jameel (PW-9) and Shakir (PW-10), who also deposed about the motive while PW-2 Munir Hussain, identified the dead body of the deceased before the police as well as before the doctor prior to autopsy. The medical evidence was provided by Dr. Muhammad Azam, (PW-6), who on 08.06.2002 at 9.00 a.m. had conducted postmortem examination on the dead body of Ashiq Hussain deceased while Rasheed Ahmad, Patwari (PW-7) on the pointing out of the witnesses and on the instructions of the police prepared scale site plan. PW-11 Feroz Ahmad, Inspector/SHO and Jam Muhammad, S.I. (PW-12) deposed about the various steps taken by them during the course of investigation of this case while PW-13 Muhammad Khalid, 301/C, escorted the dead body of the deceased to mortuary for autopsy. The remaining evidence produced by the prosecution was almost formal in nature.
6. In his statement recorded under section 342, Cr.P.C., the appellant had denied and controverted all the allegations of fact levelled against him by the prosecution and he also professed his innocence. However, to a question that "Why this case is registered against you and why the PWs have deposed against you?" Sabir appellant replied as under:- "I have been falsely involved in this case. I was not present at the place of occurrence.
Complainant and PWs involved me in this case just out of suspicion. Deceased has been murdered as result of fight and dispute between Mastoi and Drug Mafiya with deceased and etc. Deceased and complainant party involved in Narcotics business and some dispute arose between the complainant party and drug Mafiya. Mastoie tribe and Drug Mafiya supported each other.
Deceased had dispute with Mastoie brothery and there took a fight between deceased and Mastoie brothery in which Qasim, Sultan etc. were injured and Bagh Ali father of the complainant was involved in murder case of Mastoie and challaned in the said murder case. The best evidence has been given up for best known reason to the prosecution. The impression would be that they were given up as they were not supporting the prosecution story. Occurrence took place in dark night. Identification of the culprits is not possible. Alleged private PWs are close relatives of the deceased and complainant and residents of far away places. Their presence at the place of occurrence are quite un-natural. PWs dishonestly improved their statements before the Court. I am innocent."
However, neither he had opted to make statement on oath under section 340 (2), Cr.P.C. nor he produced any evidence in his defence.
7. Upon conclusion of the trial, the learned trial court after finding the prosecution's case against the appellant to have been proved beyond reasonable doubt convicted and sentenced him as mentioned and detailed above. Hence, the present appeal and the connected Murder Reference before this Court.
8. The learned counsel for the appellant contended that the prosecution had miserably failed to prove its case against the appellant beyond any shadow of doubt; that the incident was alleged to have taken place at 8.00 p.m. on 7.6.2002 while FIR was shown to be recorded on the same night at 9.30 p.m. at Police Station Rukkanpur District Rahim Yar Khan, but the postmortem had been conducted with the delay of about 14 hours without any justification or explanation as to why the postmortem examination on the dead body of the deceased was not conducted on the same night, i.e. 7.6.2002 at 10.00 p.m. when the other two injured namely Shakir Sultan and Muhammad Jameel were medically examined by the doctor at Mianwali Qureshian; delay in conducting the postmortem examination being unreasonable coupled with other facts suggests that the FIR was not recorded with such promptitude as claimed by the prosecution; that the recovery of rifle (P.11) alongwith three live cartridges from the possession of the appellant was legally inconsequential as no empty was taken into possession and there is no report of the Punjab Forensic Science Agency to corroborate the said recovery; that during trial the eyewitnesses failed to prove the motive setup in the FIR; that once the motive was set up by the prosecution, but failed to prove the same, then prosecution must suffer the consequences and not the defence. Relies upon "Noon Muhammad vs. State" (2010 SCM R 97). It is also contended that mere absconsion of the appellant is not sufficient to maintain conviction of the appellant as this alone is not conclusive proof of guilt of accused person, it is only a suspicious circumstance against an accused that he was found guilty of the offence. However, suspicions cannot take the place of proof; that in such circumstances the prosecution has not been able to prove its case against the appellant beyond any shadow of doubt who may be acquitted of the charge.
9. On the contrary, the learned counsel for the complainant and the learned Deputy Prosecutor General have opposed this appeal and maintained in unison that FIR was got registered with promptitude and names of the eyewitnesses and those of the accused along with the manner in which the occurrence had taken place were duly mentioned therein which provided corroboration to the ocular account; that no mala fide in conducting the postmortem examination with delay has been pointed out, but the postmortem examination was conducted on the next day in routine; that Shakir Sultan and Muhammad Jameel injured eyewitnesses had no motive to falsely implicate the appellant, whose presence at the spot stood established and they had also admitted their presence at the spot; that motive part has also been admitted by putting suggestions to these PWs; that the three eyewitnesses remained consistent on material points regarding the time, place and the manner in which the occurrence had taken place and they also fully established their presence at the spot beyond any shadow of doubt, whose statements have been rightly relied upon for recording convictions and sentences against the appellant by the learned trial court; that the awful occurrence in the instant case took place on 7.6.2002, whereas, Sabir appellant was arrested in this case on 27.3.2008, as such he remained fugitive from justice for about more than 6 years and abscondence of the appellant gave sufficient corroboration to the ocular account regarding his involvement in the present occurrence; that recovery of rifle was also effected from the appellant which provides corroboration to the ocular account; that there was no reason to falsely implicate the appellant in the present case by letting off the real culprits if he had not fired at the deceased; that the prosecution had succeeded in proving the case against the appellant beyond any shadow of doubt and the appeal filed by the appellant may be dismissed.
10. We have heard the learned counsel for the parties at length and also gone through the record of this case with due care and caution.
11. The unfortunate incident in the present case according to the prosecution was alleged to have taken place at 8.00 p.m. on 07.06.2002 in the area of Chak No. 63/NP, 3 k.m. away towards South, from Police Station Rukkanpur District Rahim Yar Khan, which was then reported by Waheed Murad (PW-1), the paternal nephew of Ashiq Hussain deceased through complaint (Ex:P-A) recorded at RHC Mianwali Qureshian by Feroz Ahmad, Inspector/SHO (PW-11) on the basis of which formal FIR (Ex. PA) was drafted on the same night at 9.30 p.m. According to the statement of Feroz Ahmad, Inspector/SHO (PW-11), after having information about the occurrence, he reached at RHC Mianwali Qureshian, where Waheed Murad (PW-1) appeared before him and got recorded complaint (Ex. PA), then he inspected the dead body of Ashiq Hussain deceased and prepared injury statement (Ex. PJ/3) and inquest report (Ex. PJ/2) and sent the dead body of the deceased to mortuary for postmortem examination through Muhammad Khalid 301/C (PW-13). He also prepared injuries statements of Shakir Sultan PW, Muhammad Jameel PW, Ex. PK/1 and Ex. PL/1, respectively and handed over the same to Medical Officer for medico legal examination. However, it is strange that according to PW-6 Dr. Malik Muhammad Azam, he on 7.6.2002 at 10.00 p.m. medically examined Shakir Sultan and Muhammad Jameel injured PWs, but postmortem examination on the dead body of Ashiq Hussain deceased was conducted at 9.00 a.m. on 8.6.2002, and as per his opinion the time between the death and postmortem examination was 14 hours. So it was a case of delayed postmortem, which casts serious doubt that the FIR was got recorded with promptitude, but the inference can be drawn that the intervening period was consumed in fabricating the prosecution story after the preliminary investigation, otherwise there was no justification for conducting the postmortem examination on the next day at 9.00 a.m. instead of conducting the postmortem examination on the same night i.e. 7.6.2002 at 10.00 p.m. when the other two injured persons namely Shakir Sultan and Muhammad Jameel were medically examined by the same doctor. We may refer here the case of "Irshad Ahmed v. The State" (2011 SCM R 1190), wherein the Hon'ble Supreme Court of Pakistan has observed as under:- "We have further observed that the post-mortem examination of the deadbody 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 deadbody conducted. Similarly, the Hon'ble Supreme Court of Pakistan in a case reported as Ata Muhammad and another vs. The State (1995 SCM R 599) has visualized the tendency on the part of the police in showing that the FIR was got recorded with promptitude, but the courts are bound to see it with distinct source. The relevant portion is reproduced as under:- "We know by our experience that time of recording of F.I.R. is not always genuine. The police, after learning about the commission of the crime keeps the space in the daily diary (Roznamcha) and a page in the F.I.R. Register blank for incorporating therein the gist of the information, the factum of registration of the case and the detailed report subsequently, in the light of preliminary investigation made by it. Furthermore, in this case the F.I.R. was lodged by the eye-witnesses himself. So, his previous statement recorded in the F.I.R. does not come from any distinct source. It is well settled that a witness cannot corroborate himself by repeating the version before different persons on different occasions. The evidence at the trial cannot be corroborated or reinforced by proving that the witness had made a similar statement to a third party on a previous occasion.
Mere repetition of a story will not give it any force or prove its truth."
In the present case, keeping in view the factum that the postmortem was conducted with the delay of about 14 hours without any justification or explanation coupled with the fact that the PWs made dishonest improvements during the trial to show their presence at the spot, which will be discussed herein below, we are satisfied that the FIR was got recorded after the preliminary investigation and it cannot be used as a corroborative piece of evidence. As such the prosecution story has to be seen with great care and caution.
12. The ocular account of the incident in issue had been provided before the learned trial Court by Waheed Murad complainant (PW-1), Muhammad Jamil (PW-9) and Shakir (PW-10) and we have found that all the said witnesses were not only closely related to Ashiq Hussain deceased but they were also chance witnesses. Ashiq Hussain deceased was paternal uncle of Waheed Murad complainant (PW-1), while Shakir (PW-10) was paternal nephew of Waheed Murad complainant (PW-1) and Muhammad Jamil (PW-9) was his cousin. No doubt mere relationship alone is not sufficient to term them as interested witnesses, but the PWs are bound to explain their presence at the spot with sufficient reasons. We are fortified by the judgment of Hon'ble Supreme Court of Pakistan reported as "Ijaz Ahmad Ys. The State" (2009 SCM R 99), wherein the august Supreme Court in para No. 9 has been pleased to observe as under:- "xxx Mere relationship of a witness with any of the parties would not dub him as an interested witness because interested witness is one who has, of his own, a partisan, or inimical towards the accused, hence any witness who has deposed against the accused on account of the occurrence, by no stretch of imagination can be regarded as an "interested witness".
13. Presence of the eyewitnesses at the spot was found doubtful as it is evident from the perusal of record that occurrence took place within the limits of Chak No. 63/NP near the dera of Zahid Khan and the eyewitnesses namely, Waheed Murad complainant (PW-1), Muhammad Jamil (PW-9) and Shakir (PW-10) are not residents of the locality where this occurrence took place. As per statements of the eyewitnesses, Basti Puran is at a distance of 50 k.m. from Rahim Yar Khan and the eyewitnesses have not given any plausible reason for going to Rahim Yar Khan from their house at Basti Puran during the night time instead of travelling early in the morning on the next day. Even otherwise, as per statement of the complainant Waheed Murad (PW-1) he and his brother had their own cars and they could have reached Rahim Yar Khan after one an hour. The presence of abovementioned eyewitnesses at a far off place from their residence during night time is highly improbable. The reason given by the complainant for presence of the abovementioned eyewitnesses at the spot at the relevant time does not appeal to common sense. The prosecution case as set forth in the FIR, as well as, in the statement of Waheed Murad complainant (PW-1) was that they had started from Rahim Yar Khan at about 9.00 a.m. on the day of occurrence in the company of Shakir, Jameel and Liaqat PWs on a car while the occurrence took place at 8.00 p.m. It does not appeal to a prudent mind that the accused persons kept on waiting for almost 11 hours for commission of the offence while standing in the janter crop duly armed with firearm weapons.
Admittedly, the occurrence took place at 8.00 p.m. (night time) and the place of occurrence was found to be surrounded by crops but no source of light at the place of occurrence has been shown and it was not case of the prosecution that lights of the vehicles were on, therefore, identification of the assailants in the dark hours of the night was not possible. Even otherwise, the eyewitnesses have failed to disclose that why Ashiq Hussain deceased alongwith his wife had shown his sudden intention to go with them at Rahim Yar Khan which was at a distance of 50 k.m. from Basti Puran in spite of the fact that he had no residential house at Rahim Yar Khan. Even otherwise, statements of PW-1 Waheed Murad and PW-9 Muhammad Jameel are found in contradiction with each other, as PW-1 stated that Mst. Gulnaz Bibi wife of Ashiq Hussain deceased was not injured during the occurrence, whereas, PW-9 Muhammad Jameel stated that she was injured.
14. According to the FIR, Muhammad Nawaz, Fayyaz Ahmad (since POs) and Sabir appellant made straight fire shots with their respective rifles simultaneously hitting Ashiq Hussain deceased under his left armpit. On the other hand, PW1 Waheed Murad complainant while appearing in the Court improved his statement and stated that Sabir appellant made fire on Ashiq Hussain deceased which hit near the left armpit. Likewise, PW-9 Muhammad Jameel while ascribing the role of Sabir appellant in his examination-in-chief deposed that Sabir made a rifle fire which hit under the left Axilla of Ashiq deceased, but this witness did not state anything about the injury attributed to Nawaz and Fayyaz and simply stated that Nawaz and Fayyaz also made rifle fire at Ashiq Hussain deceased. Similar position is Shakir who while appearing in the witness box as (PW-10) simply stated that Sabir appellant fired shot at Ashiq Hussain deceased without giving the seat of the injury. As per record, three eyewitnesses, Liaqat Ali and Mst. Gulnaz wife of Ashiq Hussain were present alongwith him but none of them had approached the Police for registration of the case and no reasonable explanation has been tendered by them for not approaching the police for getting registered the case with promptitude. In such circumstances, whether the witnesses were present at the spot and had seen the incident is the question which has not been sufficiently answered by the eyewitnesses.
15. Mst. Gulnaz Bibi wife of Ashiq Hussain deceased who had come from Karachi alongwith the deceased and who was also accompanying the deceased at the time of occurrence was not produced by the prosecution in support of its case. Although the prosecution is not required to produce a number of witnesses as the quality and not the quantity of the evidence is the rule but non-production of most natural and material witness of occurrence, would strongly lead to an inference of prosecutorial misconduct which would not only be considered a source of undue advantage for possession but also an act of suppression of material facts causing prejudice to the accused. Despite the presence of Mst. Gulnaz Bibi wife of Ashiq Hussain deceased who was natural witnesses on the spot, she was not produced in support of the occurrence and an adverse inference under illustration (g) to Article 129 of the Qanun-e-Shahadat Order, 1984 could easily be drawn that in case she was produced she would not have supported the prosecution version. We may refer here the case of "Muhammad Rafique and others Vs. The State and others" (2010 SCM R 385), wherein the Hon'ble Supreme Court of Pakistan has observed as under:- "It is well-settled that if any party withholds the best piece of evidence then it can fairly be presumed that the party had some sinister motive behind it. The presumption under Article 129 (g) of Qanun-eShahadat Order can fairly be drawn that if P.W. Amir Ali would have been examined, his evidence would have been unfavourable to the prosecution."
16. Certainly, the presence of the injured witnesses namely, Muhammad Jamil (PW-9) and Shakir (PW-10) cannot be doubted at the place of incident, but the question is as to whether they are truthful witnesses or otherwise, because merely the injuries on the persons of P.Ws. would not stamp them truthful witnesses. Reliance is placed on "Amin Ali and another v. The State" (2011 SCM R 323). Similarly, in "Mehmood Ahmad v. State" (1995 SCM R 127), it has been held that "For an injured witness whose presence at the occurrence is not disputed it can safely be concluded that he had witnessed the incident. But the facts he narrates are not to be implicitly accepted merely because he is an injured witness. His testimony is to be tested and appraised on the principles applied for appreciation of any other prosecution witness." Although Muhammad Jameel (PW-9) and Shakir (PW-10) are injured witnesses but they had improved their statements on material aspects, therefore, their evidence is not confidence inspiring. The relevant portions of their statements are reproduced as under:- Muhammad Jameel (PW-9)
"I had got recorded in my statement to police that fire shots of Sabir accused now present in court as well as Fayyaz and Nawaz had hit Ashiq deceased. Confronted with Ex. DA, wherein it is recorded 'Muhammad Nawaz, Sabir and Fayyaz accused made straight fires with their rifles at Ashiq Hussain deceased" and hitting of fire at the deceased is not mentioned. I had got recorded to police in my statement under section 161 Cr.P.C. that the fire of Sabir accused now present in court had hit deceased below his Axilla. Confronted with Ex. DA, where hitting below Axilla is not specifically mentioned. I had got recorded that when accused were tried to be apprehended by Waheed Murad they escaped while firing. Confronted with Ex. DA where firing while escaping is not mentioned. I did not get recorded in my previous statement in this court that fire of Nawaz and Fayyaz hit deceased under the Axilla of the deceased. Confronted with previous statement where it is so recorded. I did not get recorded in my previous statement in this court that Fida Shakoor and Irshad accused had reached the spot after 4/5 minutes of the occurrence. Confronted previous statement where is so recorded. I did not get recorded in my previous statement in the court that Fida Hussain accused was found innocent during investigation and I also accepted his innocence.
Confronted where is so recorded."
Shakir (PW-10)
"I had not got recorded in my statement before this court in earlier trial court that Nazir, Shakoor, Irshad, Fida and Murad Bibi were innocent in this case. Confronted with previous statement wherein it is so recorded. I did not get recorded that the people had told us that Bashir Ahmad was also our accused. Confronted with previous statement where it is so recorded. I do not remember if I had stated in my earlier statement in this court that Fida, Shakoor and Irshad had reached the spot after 4/5 minutes of the occurrnece. Confronted with previous statement where it is so recorded. I do not remember that the accused Fida Hussain was innocent and I accepted his innocent.
Confronted with his previous statement where it is so recorded.
It was also surfaced on the record through the statement of PW9 Muhammad Jameel, that number of accused had made firing upon the deceased who was standing adjacent to the car but surprisingly not a single bullet hit the car. The presence of the witnesses at the time of occurrence is established as they had stamp of injuries on their person but the same is not per se tantamount to a stamp of credence on their testimony. The injuries on their person cannot be considered sufficient to hold that they had spoken the whole truth. Reliance can be made to the cases of "Muhammad Hayat and another v. The State" (1996 SCM R 1411) and "Said Ahmad v. Zammured Hussain and 4 others" (1981 SCM R 795). Even otherwise, the record reveals that ten persons have been charged in the FIR for the murder of Ashiq Hussain deceased besides causing of injuries to Muhammad Jamil (PW-9) and Shakir (PW-10). Out of 10 accused, six have been acquitted of the charge by the learned trial court and no appeal has been filed against their acquittal which has attained finality and only Haq Nawaz accused was convicted u/s 337-F (vi) PPC for causing injury to Muhammad Jamil (PW-9) while two accused are still at large. From the above evidence of the P.Ws, they do not appear to be truthful witness; therefore no implicit reliance can be placed on their evidence.
17. The medical evidence of the prosecution was furnished by Dr. Malik Muhammad Azam, (PW-6), who on 8.6.2002 at 9.00 a.m. conducted the postmortem examination on the dead body of Ashiq Hussain deceased and found the following injuries on his person:- "1. A lacerated wound on left lateral arm (on the biceps) wound was of the size approximately % x % cm margins of the wound were inverted, blackening was present on the wound and corresponding hole was present on the shirt.
2. A lacerated wound was present on medial side of left arm, wound size was approximately % x % cm wound was exit.
3. A lacerated wound was present on left lateral side of chest, the size of the wound was approximately % x % cm. Margins of the wounds were inverted.
Wound were penetrating in nature. Crossed 4th and 5th intercostal space.
According to his opinion, firearms injury crossed the left vertical of heart, both lungs and liver and ruptured the main vessels of thorax, so injuries to above mentioned organs was the cause of death.
Injury was ante-mortem leading to death and the probable time that elapsed between the injury and death was 5 to 10 minutes, whereas, between death and postmortem examination was 14 hours.
18. In the Inquest Report Ex. PJ/2 in column No. 10, it has been specifically mentioned that there was an injury under the armpit of right ribs. Likewise, in pictorial diagram Ex. PJ/1, an injury can be seen with open eyes on the right arm of the deceased. Contrary to this, perusal of site plan Ex. PM clearly depicts that Ashiq Hussain deceased was standing at Point No. 1 and he was fired by the accused from his left side at Point No. 3, and the case of the prosecution itself was that no assailant was standing on the right side of the deceased, therefore, there were no chances of causing injury on the right side of the deceased. Similarly, as per site plan of the place of occurrence (Ex. PM), Ashiq Hussain deceased was standing at point No. 1 when he was fired by the accused from point No. 3 and the distance from point No. 1 to point No. 3 is 1 1/2 karms. Similarly, the eyewitnesses in their statements have stated that the deceased was hit by the accused at about 7/8 feet and none of the witnesses deposed that any of the accused had caused injury to the deceased from a close range, whereas, according to the medical report, there was blackening as is evident from the statement of PW-6 Dr. Malik Muhammad Azam, therefore, ocular account furnished by the eyewitnesses is not in consonance with the medical evidence which clearly contradicts the statements of the eyewitnesses. It is a settled law that blackening appears on the dead body in case the deceased has received injuries at a distance of 4 feet according to medical jurisprudence by Modi. Reliance is placed on "Barkat Ali Vs. Muhammad Asif and others" (2007 SCM R 1812), wherein it has been held as under:- "It is an admitted fact that eyewitnesses had stated that the deceased was hit by the respondents at about 30/35 feet whereas according to the medical report, there was burning and blackening as is evident from the statement of P.W. 2, therefore, ocular account furnished by the two eyewitnesses is not in consonance with the medical evidence which clearly contradicts the statement of the eyewitnesses. It is a settled law that blackening appears on the dead body in case the deceased has received injuries at a distance of 4 feet according to medical jurisprudence by Modi. It is a settled law that oral evidence cannot be accepted to the extent of its inconsistency with medical evidence. See Mardan Ali's case 1980 SCM R 889, Bagh Ali's case 1983 SCM R 1292, Sain Dad's case 1972 SCM R 74 and Zarshad's case 1969 SCMR 644."
After scanning the whole medical evidence, it can safely be held that in fact it was a single fire shot which was made from a close range, on the left lateral arm (on the biceps) of the deceased, making an exit on medial side of left arm, reentered on left lateral side of chest. It is by now well settled law that medical evidence may confirm the ocular evidence with regard to the seat of injury, nature of the injury, kind of weapon used in the occurrence but it would not connect the accused with the commission of the occurrence. Reference in this respect may be made to the case of Muhammad Tasaweer Vs. Hafiz Zulkarnain and 2 others (PLD 2009 Supreme Court 53).
Similar view was taken by the Hon'ble Supreme Court of Pakistan in the cases of Mursal Kazmi alias Wamar Shah versus The state (2009 SCM R 1410) and Altaf Hussain versus Fakhar Hussain and another (2008 SCM R 1103). The accumulative effect of all the above discussion is that the medical evidence in no way is sufficient to pinpoint the accused, who had caused the said injuries. It can only support the ocular account regarding the nature of the injuries and the weapon used for causing the said injuries. The medical evidence is also not found fully in conformity with the ocular account, which even otherwise has already been disbelieved by us.
19. According to the prosecution case the motive behind the occurrence was that wife of Muhammad Nawaz (since P.O) filed a suit for dissolution of marriage against him before Family Court, Bahawalpur who subsequently was admitted to Dar-ul-Aman and the accused had suspicion that the complainant was responsible for it, therefore, to avenge the same, the accused had committed the murder of Ashiq Hussain deceased and injured Muhammad Jameel (P.W-9) and Shakir (P.W-10) with the intention to kill them at the instigation and abetment of Bashir Ahmad, Murad Mai, etc. We have noted that the accused had no motive against Ashiq Hussain deceased who had come to Basti Puran from Karachi just two days earlier of the occurrence rather the motive was specifically attributed to PW-1 Waheed Murad, but astonishingly no injury was caused to him during the whole occurrence in spite of the fact that he was present at the time and place of occurrence. If he was present there at that time at the place of occurrence, he would have been murdered by the accused or even injuries would have been caused to him. Even otherwise, there is no documentary evidence in support of the motive part. So we have no hesitation in holding that the prosecution failed to prove the motive setup by it and even it was not sufficient for the appellant to commit such a heinous crime especially when he had no blood relation with Muhammad Nawaz deceased. The learned counsel for the appellant has rightly relied upon "Noon Muhammad v. State" (2010 SCM R 97), wherein it has been held that once the motive was setup by the prosecution, but failed to prove the same, then prosecution must suffer the consequences and not the defence. The relevant portion at page 101, is reproduced as under:- "Thus the prosecution has failed to prove the motive. It has been held in the case of Muhammad Sadiq v. Muhammad Sarwar (1997 SCMR 214) that when motive is alleged but not 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 though 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."
20. So far as the recovery of rifle (P.11) alongwith three live cartridges (P.12/1-3) from the possession of the appellant is concerned, we have noted that no empties were recovered from the place of occurrence and there is no report of the Punjab Forensic Science Agency in this case.
Therefore, the alleged recovery of rifle (P.11) alongwith three live cartridges (P.12/1 3) from the possession of the appellant is of no avail to the prosecution.
21. As regards the contention of the learned Deputy Prosecutor General for the State that the awful occurrence in the instant case took place on 7.6.2002, whereas, Sabir appellant was arrested in this case on 27.3.2008, as such he had remained fugitive from justice for about more than 6 years and abscondence of the appellant gave sufficient corroboration to the ocular account regarding his involvement in the present occurrence is concerned, suffice it to say that abscondence itself is not sufficient for his involvement, it is indeed the linkage and the chain of all events by credible and convincing evidence on the basis of which involvement of any person is said to be proved as the conviction should rest on surer and firmer footings. Reliance is placed on "Tahir Khan v. The State" (2011 SCM R 646). In "Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others" (PLD 2009 Supreme Court 53), the Hon'ble Supreme Court of Pakistan regarding abscondence has observed as under:- "Adverting to the question of abscondence, it may be stated that mere absconsion is not conclusive proof of guilt of an accused, person. it is only a suspicious circumstances against an accused that he was found guilty of the offence. However, suspicions after all are suspicions. The same cannot take the place of proof. The value of absconsion, therefore, depends on the fact of each case. The courts have admitted it as a supporting evidence of the guilt of accused. The absconsion of the accused may be consistent which is to be decided keeping in view overall facts of the case."
In the case reported as "Rahimullah Jan v. Kashif and another", (PLD 2008 Supreme Court 298,) it has been held by the Apex Court that mere absconsion is not conclusive proof of guilt of accused person. It is only a suspicious circumstance against an accused that he was found guilty of the offence. However, suspicions after all are suspicions. The same cannot take the place of proof. The value of abscondence, therefore, depends on the facts of each case. The absconsion of the accused may be consistent with the guilt or innocence of the accused, which is to be decided keeping in view overall facts of the case. In Muhammad Khan and another Vs. The State (1999 SCM R 1220), it has been held that the abscondence itself can never remedy the defects in the prosecution case as neither it is necessarily indicative of guilt, nor is ever sufficient by itself to prove the guilt. In "Rasool Muhammad Vs. Asal Muhammad and 3 others" (1995 SCM R 1373), and Muhammad Noor and another Vs. Member-I Board of Revenue, Baluchistan and others, (1991 SCM R 643), the Hon'ble Supreme Court of Pakistan held that abscondence can be a corroborative piece but when the ocular account furnished by the prosecution having not been found confidence inspiring, it cannot be relied upon, the abscondence alone cannot be a ground for maintaining the conviction. In the present case, we have already disbelieved the other pieces of evidence including the ocular account and thus mere abscondence of the appellant cannot be a ground for maintaining his conviction and sentence.
22. The responsibility to prove its case beyond any shadow of reasonable doubt squarely lies with the prosecution and if it fails to successfully discharge it, the only result can be the extension of benefit of doubt to the accused person and it is, by now, established proposition that multiple doubts are not required in this regard, even a single circumstance creating doubt in a prudent mind is sufficient and the nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. Reference is made to the case titled "Azhar Iqbal v. The State" (2013 SCM R 383) & "Muhammad Akram v. The State" (2009 SCM R 230).
23. It is golden principle of law that the Court should let off hundred guilty but should not convict one innocent person. in the case of "Ayub Masih v. 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."
24. For what has been discussed above, we have come to an irresistible conclusion that the prosecution had not been able to prove its case against Sabir appellant beyond any shadow of doubt. Mere heinousness of the crime is not a ground that the accused nominated by the prosecution should always be sentenced, but the prosecution has to stand on its own legs and quality of evidence is required for recording conviction, which is lacking in the present case. Hence, Criminal Appeal No. 56 of 2012 is hereby accepted, the impugned judgment of conviction and sentence recorded by the learned trial court against the appellant is set aside and he is acquitted of the charge by extending benefit of doubt to him, who shall be released from jail forthwith, if not required in any other criminal case.
25. Consequently, the death sentence awarded to Sabir appellant is not confirmed and Murder Reference No. 15 of 2012 is replied in negative.