AALIA NEELUM, J.- Imran and Aamir both sons of Hamid Ali, Caste Ansari, resident of Chak No.8. Tehsil Bhalwal, District Sargodha (appellants) along with Jawad alias Kashi (Kaka) (since acquitted), Liaqat Ali (since acquitted), Iltaf (since acquitted) and Hamid Ali (since acquitted) were involved in private complaint case titled "Muhammad Mumtaz v. Imran etc." filed under Sections 302/324/148/149 P.P.C and were tried by the learned Additional Sessions Judge, Bhalwal. The learned trial court seized with the matter in terms of judgment dated 26.05.2012 and convicted Imran and Aamir (the appellants) as under:
(1) Convicted under section 302(C)/34 PPC for committing 'Qatl-i-Amd' of Shahid-the deceased and sentenced them to imprisonment for life. The appellants were further directed to pay Rs.50,000/- each and in case of default in payment thereof, to further undergo SI for six months each.
(2) Convicted under section 324/34 PPC and sentenced them to rigorous imprisonment for five years RI.
The appellants were further directed to pay Rs.20,000/- each as fine and in case of default in payment thereof, to further undergo SI for six months each.
Both the sentences awarded to the appellants shall run concurrently . The benefit of section 382-B Cr.P.C was also extended in favour of the appellants .
2. Feeling aggrieved by the judgment of the learned trial court the appellants impugned the same by way of filing .
3. Prosecution story as contained in the private complaint (Ex.PB) filed by Muhammad Mumtaz-the complainant (PW-1) is that on 06.11.2008 at about 01:30 p.m, the complainant (PW-1) along with Muhammad Azam (PW-4), Nasar Hayat, Shahid (the deceased) and Liaqat Ali-the injured (PW-3), while on a car bearing No.92/IDH was passing from Chak No.8/NB and when they reached in front of shop of Imran-the appellant, the appellants-Imran, Aamir and co-accused Jawad alias Kashi alias Kaka (since acquitted) and Hamid Ali (since acquitted), while armed with pistols 30-bore, whereas, the accused Liaqat Ali and Altaf both armed with guns 12-bore came there and stopped the complainant party. All the accused mentioned above asked the complainant (PW-1) and PWs to come out from the car and they raised Lalkara that they would be taught a lesson over the fighting with them.
When they came out from the car, the appellant-Imran made a fire shot, which hit Liaqat Ali Makari (PW-3) under right arm pit, whereas the second fire made by Aamir-appellant hit the deceased-Shahid under his umbilicus.
Thereafter, all the accused persons made indiscriminate firing upon the complainant party but the same were missed. The complainant (PW-1) along with PWs shifted the deceased-Shahid and Liaqat Ali-injured (PW-3) to Bhalwal Hospital in an injured condition, where Shahid-the deceased succumbed to the injuries, whereas the injured Liaqat Ali (PW-3) due to precarious condition was referred to DHQ Hospital, Sargodha. Thereafter, the complainant (PW-1) rushed towards the Police Station after leaving Sikandar Hayat (PW-2) near the dead body of deceased, Shahid for reporting the occurrence. Where he (PW-1) met with Nazir Ahmad, SI (CW-1), who reduced into writing FIR (Ex.P A) on the oral statement of the complainant-Muhammad Mumtaz (PW -1).
4. The motive behind the occurrence is stated to be a quarrel with Imran-appellant and Liaqat Ali Makari (PW-3) and Shahid-the deceased some days prior to the occurrence and due to this grudge, the appellants along with co- accused persons in furtherance of commo n intention committed murder of Shahid (the deceased) and also caused injuries upon the person of Liaqat Ali (PW -3).
5. Thereafter , the investigation was entrusted to Nazir Ahmad, S.I (CW-1), who inspected the place of occurrence, prepared the rough site plan of the place of occurrence on the pointing of the complainant (PW-1) and PWs (Ex.PH). He (CW-1) also recorded the supplementary statement of Muhammad Mumtaz-the complainant (PW-1) and also recorded the statements of the prosecution witnesses under section 161 Cr.P.C. Whereas Muhammad Hafeez, the Draftsman (PW-7) prepared the scaled site plan of the place of occurrence in duplicate as Ex.PK and Ex.PK/1 on 14.11.2008 and he (PW-7) on the same day produced the scaled site plans (Ex.PK and Ex.PK/1) before the Investigating Officer (CW-1). The blood stained earth was taken into possession by him (CW 1) through recovery memo (Ex.PJ). After postmortem examination of the dead body of the deceased-Shahid, Muhammad Sajjad 1213/C (PW-6) produced the last worn clothes of the deceased before the Investigating Officer (CW-1) i.e Qameez, Shalwar and Buniyan , which were taken into possession vide recovery memo (Ex.PG). On 24.11.2008, he (CW-1) arrested the accused persons namely Imran Ali and Jawad Ali (since acquitted) and obtained their physical remand and on 01.12.2008, the appellant-Imran Ali got recovered the pistol 30-bore (P 4) and got prepared a separate complaint and lodged a criminal case against the appellant-Imran under section 13 of Arms Ordinance, 1965 and took into possession the pistol 30-bore vide recovery memo (Ex.PK). Thereafter , he (CW 1) sent the accused to judicial lock up. During investigation he (CW-1) came to the conclusion that the appellant-Aamir and co- accused Liaqat Ali (since acquitted) were innocent, whereas the appellant-Imran Ali and Jawad Ali (since acquitted) were declared guilty as they were involved in the occurrence.
6. The prosecution in order to advance its case produced as many as nine (09) prosecution witnesses during the course of trial in private complaint, whereas the Investigating Officer of the case namely Muhammad Nazir , SI appeared as CW-1. Ocular account in this case consists of the statements of Muha mmad Mumtaz-the complainant (PW-1), Sikandar Hayat (PW -2), Liaqat Ali-the injured (PW -3) and Muhammad Azam (PW -4).
7. Dr. Muhammad Rasool, M.O, THQ Hospital, Bhalwal appeared as PW-5 and deposed that on 06.11.2008, he conducted the post mortem examination upon the dead body of Shahid (the deceased) and found the following injuries on his person.
Injuries.
1. A lacerated wound of entry 1 cm x 1 cm going into lower part of abdomen, below the umbilicus with inverted margin and no blackening and burning around the wound.
2. A lacerated wound of exit 1.5 cm x 1.5 cm on the left lumber regions with averted margins.
Opinion: In my opinion, the death in this case had occurred due to excessive hemorrhage and shock, as result of injuries No.1 and 2. These injuries were sufficient to cause death in ordinary course of nature. These were anti-mortem and were caused with fire arm. Injury No.1 is entry wound whereas injury No.2 was exit wound. They were result of one fire shot ."
8. Whereas Dr. Mehboob Ahmad Gondal, MO, RHC Miani appeared as PW-9 and deposed that on 06.11.2008, he (PW-9) medically examined Liaqat Ali-injured (PW -3) and found the following injuries on his person.
Injuries.
1. A lacerated firearm wound of entry 3 cm on the left side of upper 1/3 chest, in the line of interior exillary line. T attooing was present. Corresponding holes on shirt and bunian were present.
2. A lacerated fire arm wound of exit 1 cm x 1 cm on back of mid one third of left side of chest. The wound profusely bleeding. Corresponding holes on clothes were present.
9. On 14.05.2012, the learned ADPP closed the evidence of prosecution after tendering the report of Chemical Examiner (Ex.PP) and the report of Serologist (Ex.PQ).
10. After closure of the prosecution evidence, the appellants were examined under Section 342 of Cr.P.C, wherein they opted not to appear as their own witnesses in terms of Section 340 (2) Cr.P.C in disproof of allegations leveled against them in the prosecution evidence. While replying to the question why this case is against them and why the PWs deposed against them, the appellant Imran made the following deposition:- "PWs are inter-se related and have deposed falsely while twisting the facts of the case. Complainant party is desperate and a custom of violent activity ."
Whereas, the appellant-Aamir made the following deposition:- "PWs are inter-se related and have deposed falsely while twisting the facts of the case. Complainant party is desperate and a custom of violent activity ."
11. In defence evidence, the appellant-Imran Ali produced copy of FIR No.166/02 as Mark-A, FIR No.156/02 as Mark-B, FIR No.504/08 as Mark-C, FIR dated 25.07.2004 as Mark-D, FIR No.125/89 as Mark-E, FIR No.212/04 as Mark/F , FIR No.114/08 as Mark-G, FIR No.119/03 as Mark/H, FIR dated 21.07.2006 as Mark-I, FIR No.11/06 as Mark-J, FIR No.300/04 as Mark-K, FIR No.393/06 as Mark-L, FIR No.184/03 as Mark-M, FIR No.189/03 as Mark- N, FIR No.243/09 as Mark-P , FIR No.540/09 as Mark-Q, FIR dated 15.11.2008 as Mark-R, FIR No.540/09 as Mark- S and FIR No.229/03 as Mark-T and closed his defence evidence.
12. Learned trial court after evaluating the evidence available on record found version of the prosecution proved beyond any shadow of reasonable doubt against the appellants resulting into their conviction in the afore-stated terms.
13. Learned counsel for the appellants conte nds that the appellants were not involved in the occurrence and they have roped falsely in this case and that there is a conflict between the medica l evidence and ocular account.
Learned counsel for the appellants has further submitted that the version of the appellants was not appreciated in juxtaposition with the prosecution evidence. Learned counsel for the appellants has lastly prayed that the prosecution has badly failed to prove its case against the appellants beyond any shadow of doubt and therefore, the appellants may be acquitted from the charge.
14. On the other hand, the learned Deputy Prosecutor General assisted by the learned counsel for the complainant has vehemently opposed the contentions raised by the learned counsel for the appellants with the submissions that the appellants are involved in the occurrence with specific role and that the prosecution witnesses remained consistent on all material points. Learned Law Officer lastly prayed that the prosecution has proved its case against the appellants and therefore, the appeal in hand may be dismissed.
15. Arguments advanced from both sides have been heard. I have also gone through the record with the able assistance of the learned counsel for the parties.
16. The eye witnesses are not reliable, as the medico legal certificate (Exh.PN) of Liaqat Ali (PW-3)-the injured shows that 'tattooing' existed on Injury No.(1). The 'tattooing' arised keeping in view the nature of the firearm, which is said to have been used clearly goes to show that a shot was fired from a short distance. Tattooing is possible when a shot is fired from a distance of about 2 feet to 3 feet. It, therefore, cannot be a case where the injury might have been caused by somebody by firing a shot at the injured from a distance of more than eight (8) feet. To consider the distance from which the fire shot was made by the accused-appellant Imran Ali, this court has perused the evidence of injured witness Liaqat Ali (PW-3) as well as rough site plan (Exh.PK) and scaled site plan (Exh.PK). Liaqat Ali (PW-3)-the injured witness has deposed during cross-examination that, "The accused had made firing on us from a distance of 2/3 Karams." On perusal of rough site plan (Exh.PK) and scaled site plan (Exh.PK/1) it reveals that the distance between point "2" and point "4" was shown as 8 feet, whereas as per deposition of Liaqat Ali (PW-3) the distance between the injured and the accused was 11/16 /2 feet. The evidence of prosecution witnesses and site-plans are fully consistent on this point that distance between accused and deceased was more than eight (8) feet which is not supported by medical evidence. Dr. Mehboob Ahmad (PW-9) deposed during cross-examination that, "I examined the injured at 2.00 P.M. Tattooing occurs when the fire is made from very close range. Tattooing occurs from less than three feet distance of the fire. I have not mentioned the duration in hour but I have just mentioned the injuries as fresh. No injury statement was produced before me." Liaqat Ali (PW-3)-the injured witness is not reliable as the nature of injury No. 1 suggests that the fire shot was not made from a distant place i.e. more than eight (8) feet, the fire made from more than eight (8) feet would not cause "tattooing". Even the size of the injury was also not result of pistol.
17. This court has also noted that as per prosecution version the accused-appellant Amir fired straight towards the deceased-Shahid, resulting in death of Shahid. On perusal of rough site plan (Exh.PK) and scaled site plan (Exh.PK/1) it reveals that the deceased was shown at point "1" and the accused-appellant Amir was shown at point "3" in front of the deceased-Shahid and the distance between points was shown as 5-1/2 feet. Whereas, Dr. Muhammad Rasool (PW-5) observed following injuries on the person of the deceased-Shahid: "1. A lacerated wound of entry 1 cm x 1 cm going into lower part of abdomen, below the umbilicus with inverted margins and no blackening and burning around the wound.
2. A lacerated wound of exit 1.5 cm x 1.5 cm on the left lumber regions with everted margins."
Whereas, on dissection of injury No.1 observed as under:- "Under injury No1 mattalic foreign body damaged skin, sub-cutaneous tissues, pierced muscles of the abdomen and blood vesicles entered abdomen. It damaged peritoneum small intestine and left kidney.
There was excessive hemo peritoneum. Then Mettalic foreign body came out through injury No.2 Thorax All the visras of thorax were found healthy . But heart was empty .
Abdomen. All the visras of abdomen were healthy , except the mentioned above. "
So, from the medical evidence, it is established that injury No. 1 on the person of the deceased-Shahid was not result of straight fire shot. Looking to these facts, this court is of the opinion that true genesis of the occurrence has been withheld by the prosecution. Therefo re, possibility of false implication of the accused-appellants Imran Ali and Amir in the alleged crime cannot be ruled out and in my opinion, the prosecution has failed to bring home the charges framed against the accused-appellants Imran Ali and Amir.
18. On the other hand Liaqat Ali (PW-3) deposed during examination-in-chief that, "Myself and Shahid were removed to civil Hospital Bhalwal where Shahid succumbed to injuries and I was referred to DHO Hospital, Sargodha. I was also medically examined ". Whereas during cross-examination he (PW-3) deposed that, "I and Shahid accused were taken to the hospital by Mumtaz complainant, Azam and Nasar Hayat PWs on the same car, on which we had come to the place of occurrence. " Muhammad Mumtaz (PW 1)-the complainant deposed during cross-examination that, "I along with Azam and Nasar had taken Shahid and Liaqat injured PW to the Hospital. " From the Medico Legal Report (Exh.PN) it reveals that injured Liaqat Ali was arrived in hospital by himself and not brought to the hospital by the prosecution witnesses as stated above by both the witnesses. In the column of medico legal report (Exh.PN), "name of relative and friend" was written, brought by "Self" and above "self" it was written Muhammad Sajid 1213/Constable. Dr. Mehboob Ahmed Gondal (PW-9) during cross-examination had specifically stated that, ""I examined the injured at 2.00 P.M. In relevant column of the MLC I have written that the injured had come to the hospital himself. Volunteer that I have also written the name of M. Sajjad Constable above the said Khana". It is clear from the medico legal certificates that the injured was not previously examined and in the column of No and date of police docket, name of Muhammad Sajid 1213/Constable was written who brought the injured on 06 11-2008 at 2:00 p.m. and particulars of FIR were also mentioned therein. However fact remains that the FIR (Ex.PA) was directly lodged on the oral statement of Muhammad Mumtaz (PW-1) at 02:30 p.m. It is also noticed by this court that in the1 inquest report (Exh.PE) which was prepared by Muhammad Nazir, S.I (CW-1)-the investigating officer had mentioned only date of receiving information of death in column No.4 as 06-11-2008 and time of preparing inquest report was not mentioned therein. Even the nature of weapon used in the case, does not find mention in the inquest report. Was it because no FIR had actually been registered at the time as alleged by the prosecution and after some consultations and deliberations it came into existence? Muhammad Nazir, S.I (CW-1)-the investigating officer has categorically asserted which reads as under:- "I have seen the inquest report Ex.PC, which is in my hand. In column No.03 of inquest report I have not mentioned the time at which I received information about the occurrence. I have only mentioned date i.e 06.11.2008. The place of occurrence is in front of grocery shop of accused Imran and Kashi etc."
It has been noticed that on the first page of inquest report (Ex.PE) at top particulars of FIR was not mentioned, so much so even the names of Muhammad Mumtaz (PW-1), maternal uncle of Shahid-the deceased and Muhammad Azam (PW-4) have not been mentioned. The inquest report (Ex.PE) is not signed by any of the eye witnesses. However , name of Sikandar Hayat (PW-2) was mentioned in inquest report (Ex.PE) as he (PW-2) identified the dead body of the deceased-Shahid. Whereas, Sikandar Hayat (PW-2) deposed during cross examination that: "Shahid deceased was not related to me. I learnt about the occurrence at about 2:00 p.m when I was present in Bhalwal City as per chance. I had reached at the place of occurrence at 5.00 P.M. The dead body was lying at mortuary at THQ, Hospital, Bhalwal when I reached at THQ, Hospital, Bhalwal".
The absence of those details is indicative of the fact in view of above referred prosecution evidence the prosecution story was still in embryo and had not been given any shape and that the FIR was recorded later on after due deliberations and consultations and was then ante timed. From the deposition of Muhammad Mumtaz (PW-1)-the complainant and the record it is established that the FIR had been registered at 2:30 p.m. and distance between hospital and police station as mentioned in inquest report (Ex.PE) in column No. 2 was only one (1) furlong. Dr. Muhammad Rasool (PW-5), who conducted post mortem examination of the dead body of the deceased, deposed during cross-examination that, "I have mentioned the time of death as 2.00 P.M is relevant column of the P.M Examination report. " However Muhammad Mumtaz (PW 1)-the complainant had not explained that where he remained for half hour before registration of the FIR. Which shows that after due consultation and deliberation by Muhammad Mumtaz (PW-1)-the complai nant and after conducting preliminary investigation by the police at the spot FIR was registered. The delay in reporting the incident to the police from the time of the death of the deceased remained unexplained and renders the whole of the prosecution version doubtful. Above stated facts also contradict the prosecution story and extend strength to the defence version that the complainant had not witnessed the occurrence and injured witnesses deposed falsely to strengthen the prosecution version. Even by now, it is well settled principle of law that medical evidence only indicates receipt of injuries, kind of weapon used and nature of injury but it did not name the assailant. Reliance is placed on "Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others (PLD 2009 SC 53) and "Mursal Kazmi alias Qamar Shah and another v. The State " (2009 SCMR 1410 ).
The Hon'ble Supreme Court of Pakistan in case titled "Amin Ali and another v. The State" (2011 SCMR 323) held that: "------------------------ Presence of injured witness cannot be doubted at place of incident merely because they had injuries on their person do not stamp them to be truthful witness."
The Hon'ble Supreme Court of Pakistan in the case reported as "Muhammad Pervez and others v. The State and others" (2007 SCMR 670 ) held that, "---Injured prosecution witness---Effect-- Injuries on a prosecution witness are only indication of his presence at the spot but are not affirmative proof of his credibility and truth."
19. To prove the ocular account, the prosecution produced Muhammad Mumtaz (PW-1), maternal uncle of Shahid- the deceased, Liaqat Ali (PW-3), injured-w itness, and Muhammad Azam (PW-4). According to the prosecution, the incident took place near the shop of Imran accused situated in Chak No. 08 N.B at 1:30 p.m. on 06-11-2008. All the eye witnesses namely Muhammad Mumtaz (PW-1), Liaqat Ali (PW-3) and Muhammad Azam (PW-4) were not resident of the same locality . It was state d by Muhammad Mumtaz (PW-1)-the complainant deposed during cross- examination that: "I had not mentioned any reason, purpose or occasion for accompanying M. Azam Nasar Hayat and Liaqat PW in the FIR." Said witness (PW-1) also deposed that, "The place of occurrence is about three kilo meters from village purana Bhalwal, not six kilo meters as suggested Village Chawa is at a distance of 10/12 kilo meters from the place of occurrence, not fifteen kilo meters as suggested. Village Chawa is located in the territorial jurisdiction of P.S. Bhera. Liaqat PW is r/o village Chawa where he resides alongwith his family and tribe." He (PW-1) further deposed that, "We have gathered at village purana Bhalwal. W e started from Purana Bhalwal at about 1.15 noon.".
Similarly , Muhammad Azam (PW -4) during cross-examination deposed that, "I Mumtaz and Nasar Hayat PW belong to village Purana Bhalwal which is at a distance of three/four kilo meters from the place of occurrence. I had no relationship what so ever with Nasar PW and complainant Mumtaz. Village Chawa might be at a distance of 15/16 K.M. from the place of occurrence. Village Chawa is at a distance of about 12 kilo meters from Purana Bhalwal." Said witness also admitted that, "We had started from Purana Bhalwal at about 12.30 noon to come to Bhalwal City. It took us ten minutes in reaching to Bhalwal City .".
So the eye witnesses were not known to each other, not residents of one place, all gathered at village Purana Bhalwal as admitted by Muhammad Mumtaz (PW-1)-the complainant and Muhammad Azam (PW-4). The place of occurrence is near the shop of Imran accused in Chak No. 08 N.B is at a distance of 3/4 kilometers and they were chance witnesses as they should have not been normally be present at the place of incident. They were bound to give credible explanation for being present at the place of incident. Both the eye witnesses had not given any reasonable explanation and no material has been placed on record that why they all gathered at one place when they did not know each other on the fateful day. Muhammad Nazir, S.I. (CW-1) Investigating Officer, deposed during cross-examination in this regard that, "I also thoroughly investigated this case openly and secretly and concluded that Aamir , Liaqat acused were neither present at the place of occurrence nor they have participated in the occurrence. So the above said both accused were not involved in this case according to my investigation. I also concluded after my investigation that Jawad alias Kaka was empty handed and was just present on his shop and I also concluded that the deceased along with Liaqat, Hamid, Saqlain and Zabar Khan were aggressor and they had come to the place of occurre nce on a Car No.IDH/92 and they belabored Imran and Jawad alias Kaka. Zabar Khan was arrested at the spot whereas Shahid deceased, Liaqat, Hamid and Saqlain fled away from the place of occurrence, on the same car on which they had come to the place of occurrence. After my investigation Inspector/SHO, P.S Bhalwal also investigated the case and concurred my findings.
Likewise SDPO, Bhalwal Matteh Ullah Khan also affirmed my investigation and that of Inspector SHO P.S Bhalwal."
There is another aspect of the case which makes presence of the eye witnesses at the spot doubtful. Muhammad Mumtaz (PW-1)-the complainant depose d during cross-examination that, "When we reached near the shop of Imran accused in Chak No.08 N.B. When Imran, Jawad and Aamir accused persons armed with pistols Hamid was also armed with Pistol, Liaqat Ali and Iltaf accused were armed with 12 bore gun confronted us.
They stopped us and said that they had come to teach us a lesson for having quarrel with Liaqat Makari, when we came out of the car, Imran accused fired at Liaqat Makari hittin g him under his left arm pit, second fire was made by Aamir accus ed which hit Shahid underneath his umbilicus." Liaqat Ali (PW-3) and Muhammad Azam (PW-4) have also deposed on the similar lines. Their i.e Muhammad Mumtaz (PW-1)-the complainant and Muhammad Azam (PW-4) presence at the relevant time of occurrence is belied from site plan prepared on their pointing. The un-scaled site plan (Ex.PK) and scaled site plan (Ex.PK/1) show presence of witnesses at point No. "6" at north from point "1", place of incident where Shahid-the deceased received fire arm injury , which is in southern side from point "6". It is observed by this court that the presence of accused persons Amir and Imran Ali was shown at point "3" and point "4", which is in western side from point "1" and "2" and points "1, 2, 3 and 4" where in front of the shop of Imran Ali whereas point "6" is at the distance of 30 feet from point "1".
Whereas Muhammad Mumtaz (PW-1)-the complainant, Liaqat Ali (PW-3) and Muhammad Azam (PW-4) stated that when they alighted from the car both accused persons i.e. Amir and Imran Ali made fire shots which hit Shahid-the deceased and Liaqat Ali (PW-3) respectively with their respective weapons. The oral testimony is contrary to the documentary evidence in shape of un-scaled site plan (Exh.PK) and scaled site plan (Ex.PK/1) as discussed above. The witnesses were at north side at the distance 30 feet from point "1". The crime scene was also brought on the record by way of cross examination conducted by the learned counsel for the complainant on the Investigating Officer. The Investigating Officer (CW-1) deposed that: "It is correct that I recorded the FIR of this case on the statement of complainant Muhammad Mumtaz wherein complainant stated before me that Aamir accused present in the court made a fire with pistol which hit to Shahid deceased later-on he succumbed to the injuries. Likewise Imran accused made a fire with pistol which hit to Liaqat Makari injured. On the same day of occurrence I reached at the place of occurrence alongwith complainant and PWs and drafted site plan on the pointation of the said complainant and Pws. On the place of occurrence Mumtaz PW stated that Aamir accused made fire with pistol on Shahid deceased which I had shown on point No.01 of the site plan CW-1/A which was also supported by the PWs on the spot. Likewise complainant and PWs stated before me on the spot that Imran accused made fire with pistol which hit to Liaqat Ali Makari injured which I had shown on point No.02 of the site plan. The complainant and Pws also pointed the intervening distance of all the points mentioned in rough site plan drafted by me. I also recorded the same factum and position in inquest report prepared by me. The same factum was recorded by me on the statement of PW u/s 161 of Cr.P.C.
On 14.11.2008 I alongwith draftsman complainant and PWs reached at the place of occurrence wherein the complainant and PWs stated the same position to the draftsman who prepared the site plan. In whole the investigation before me up to DSP Circle the complainant and the PWs were consistent on same stance".
So crime scene negates the mode and manner of the occurrence. Although site plan is not a substantive piece of evidence in terms of Article 22 of the Qanune-e-Shahdat Order 1984 as held in the case of Mst. Shamim Akhtar v. Fiaz Akhter and 2 others (PLD 1992 SC 211) but it reflects the view of the crime scene and same can be used to contradict or disbelieve eye witnesses. In such circumstances it could not be ruled out that the witnesses had suppressed the original occurrence and has thus not presented the true version. All these circumstances make the presence of the eye witnesses i.e. Muhammad Mumtaz (PW-1)-the complainant and Muhammad Azam (PW-4) at the spot doubtful. Apart from Muhammad Mumtaz (PW-1)-the complainant and Muhammad Azam (PW-4) there was injured witness namely Liaqat Ali (PW-3) examined by the prosecution in support of its case. Liaqat Ali (PW-3) deposed during examination-in-chief that, "I had made my statement on 08-11-2008." The statement of the prosecution witness should be recorded as promptly as possible, without giving him any opportunity to improve upon and subtract from what he saw. Since the delay is likely to give an opportunity to a witness to concoct a different version. However, the testimony of the injured witness create doubt about date and place of recording his statement under section 161 of Cr.P.C. As he (PW-3) deposed during cross examination that, "I do not remember the date on which mq statement was recorded nor I remember the place." He (PW-3) further deposed that, "I had never appeared before the I.O after this occurrence in connection with the investigation of this case."The testimony of a witness had proved fatal and sounded death knell for the prosecution case.
20. As far as motive is concerned, it is a double edged sword, which cut both sides/ways. In the instant case Muhammad Mumtaz-the complainant (PW-1), maternal uncle of Shahid-the deceased, deposed during examination-in-chief that, "Motive for the occurrence was that there was exchange of hot words between Liaqat Makari and Imran accused because of the above reason the accused committed the murder of Shahid and Liaqat was injured. The accused had exchanged with Shahid previously ." Whereas, Liaqat Ali (PW 3)-injured witness deposed during examination-in-chief that, "Motive for this occurrence was that there was quarrel of me and Shahid deceased with Imran Ali accused etc a few days before the occurrence.
Because of the above reason the accused committed the murder of Shahid and injured me seriously ."
However , Liaqat Ali (PW-3)-injured witness deposed during cross-examination deposed that, "On 24-03-2009 I had appeared in this court and make curs ory statement in which I had not mentioned that Shahid deceased had also exchanged hot words with Imran and he bore any grudge. " Both above said witnesses have not stated about the time and date when quarrel took place or hot words were exchang ed between the accused-Imran, Liaqat Ali (PW 4)-injured witness and the deceased-Shahid, even reasons for quarrel or exchange of hot words were not stated by the witnesses. Whereas, Muhammad Azam (PW-4) deposed during cross-examination that, "I am not the witness of motive incident." This court, therefore, is not satisfied that the prosecution has been able to establish that there was any sufficient motive for the accused to commit the alleged crime. However , Liaqat Ali (PW-3)-injured witness deposed during cross-examination that, "Although Muhammad Afzal is my real brother, who was involved in a murder case, he is now P.O but I do not know if he was convicted and sentenced to life imprisonment and he ran away from the court at the time of pronouncement of judgment. My father, my brothers and my other relatives have been challaned in so many cases of different category in various police stations. The cases include theft, murderous assault and Hadood cases. I have been brought from Shahpur Jail in police custody to make statement in this case. I and Saqlain mentioned above were convicted and sentenced for making murderous assault on Jawad alias Kashi, when he was going to see Imran accused in Shahpur Jail. I was convicted and sentenced in that case for five years whereas Saqlain was convicted and sentenced to two years. I along with Saqlain, Hamid, and Zabar Khan are accused regarding this occurrence for making murderous assault on the accused persons." (Zabar Khan wrongly mentioned in the testimony originally it is Jabar Khan).
From the above deposition of Liaqat Ali (PW-3)-injured witness, it reveals that the injured PW was a man of questionable character having shady past and criminal antecedents. Therefore, the evidence led by the prosecution especially by Liaqat Ali (PW-3)-injured witness in connection with motive is not sufficient for placing reliance on the testimonies of the witnesses. Now it is trite law that enmity is a double edged weapon. The existence of a motive on the part of the accused may be a reason for committing the crime, yet the Court has to be cognizant of the fact that this may in a given case lead to false implication of the appellants. Motive is a double edged weapon for the occurrence and also for false implication. There are always different motives operate in the mind of the person in making false accusation. The motive for the commission of crime, by the accused was, therefore, not proved, through cogent and convincing evidence. In the circumstances, we cannot avoid the conclusion that the motive, as alleged, was an afterthought and has not been proved by any credible evidence.
21. Another important aspect of the prosecution case is that at the time of spot inspection no crime empty was recovered from the place of occurrence by the investigating officer. So, recovery of pistol (P-4) on the disclosure of the appellant-Imran on 01.12.2008 does not advance the prosecution case and same is inconsequential.
22. As it is difficult to rely upon the testim onies of Muhammad Mumtaz (PW-1), Liaqat Ali (PW-3) and Muhammad Azam (PW-4) and for other reasons enumerated hereinbefore, I am persuaded to hold that the prosecution had not been able to prove its case against the appellants beyond shadow of doubt as there were many dents in the prosecution story . 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 230) wherein the Hon'ble Supreme Court of Pakistan has held that even a 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.
23. The upshot of the above discussion is that the prosecution had badly failed to bring home charge against the appellants beyond any reasonable doubt, therefore, in the interest of safe administration of Criminal Justice, Criminal Appeal No.1107 of 2012 filed by Imran and Aamir , appellants is accepted in toto. The conviction and sentence awarded by the learned Addition al Sessions Judge, Bhalwal vide judgmen t dated 26.05.2012 is set aside and the appellants are acquitted of the charge. The appellants Imran and Aamir are directed to be released forthwith , if not required in any other criminal case.