Ch. Abdul Aziz, J. This judgment shall dispose of Criminal Appeal No.1095 of 2012 (filed by appellant Liaqat Ali alias Liaqi against his conviction) and Reference sent by trial court under section 374 of Criminal Procedure Code, 1898 which is numbered as Murder Reference No.257 of 2012, for confirmation or otherwise of sentence of death awarded to above-named appellant. The appeal as well as the murder reference is originating from the judgment dated 06.06.2012 passed by the learned Additional Sessions Judge, Lahore, on a trial held in case FIR No.563/2009 dated 18.07.2009 for the offence under sections 302 & 34 PPC registered at Police Station City Raiwind, Lahore. Learned trial court throu gh the impugned judgment while acquitti ng co-accused namely Karamat Ali alias Papi convicted and sentenced the appellant as under:- Under section 302 (b) PPC and awarded death sentence. Appellant was also directed to pay Rs.200,000/- as compensation to the legal heirs of the deceased under section 544-A Cr.P.C. and in default of payment of the said amount, the appellant was ordered to further undergo SI for six months.
2. Briefly stated the case of the prosecution as unfolded by Mansab Ali (PW.7) in application for the registration of F.I.R (Exh.PC) is to the effect that he is resident of Ghang Sharif and agriculturist by profession; that his son Abdul Rasool aged 30 years who works in Japan Grid Power , Jia Bagha Road, was going towards Haveli at about 7:30 p.m; that he along with his paternal cousin namely Muzaf far Ahmed was also following him (son of the complainant); that when Abdul Rasool reached near the Haveli of Mushtaq, he saw Liaqat Ali alias Liaqoo (appellant), Shaukat Ali alias Shoki both armed with .12 bore pump action, Karamat Ali alias Papi armed with .30 bore pistol, along with an unknown person sitting there; that Liaqat Ali exhorted that Abdul Rasool be taught a lesson for getting a case registered against them, upon which all the three nominated accused fired at Abdul Rasool with their respective weapons; that the shots fired by the assailants hit on the right and left back, shoulder and neck of Abdul Rasool (deceased); that the said accused persons while brandishing their weapons fled away from the spot; that Abdul Rasool was immediately shifted to General Hospital for treatment where he succumbed to the injuries. The motive behind the occurrence statedly was that earlier Liaqat Ali (appellant) and others made firing for which the complainant party got registered a criminal case against them.
3. After the registration of crime report (Exh.PC/1), the investigation of this case was entrusted to Muhammad Ijaz Khan SI (PW.11), who visited General Hospital, Lahore, where he prepared the inquest report (Exh.PH), injury statement (Exh.PI), application for postmortem examination (Exh.PJ) and forwarded the dead body for postmortem examination through Muhammad Ansar HC and Mazhar Abbas Constable. He then visited the place of occurrence and took into possession blood stained earth and two empty cartridges vide recovery memos (Exh.PD & Exh.PE) on 18.07.2009. He arrested Liaqat Ali (appellant) on 17.12.2009. On 30.12.2009, during the course of investigation Liaqat Ali (appellant) led to the recovery of pump action (P.3) which was taken into possession by Muhammad Ijaz Khan SI (PW.11) vide recovery memo (Exh.PC). After the completion of investigation, the report under section 173 Cr.P.C. was forwarded in the Court.
4. The prosecution, in order to prove its case against the appellant and his co-accused produced thirteen PWs which include Mansab Ali (PW.7) and Ghulam Rasool (PW.8), who are the eyewitnesses of the occurrence, Dr. Iftikhar Ahmed Zahid (PW.6) who furnished the medical evidence and Muhammad Ijaz Khan SI (PW.11) who conducted the investigation of this case. The remaining prosecution witnesses more or less were formal in nature.
5. Dr. Iftikhar Ahmed Zahid (PW.6) on 19.07.2009 at about 12:50 p.m. conducted the post-mortem examination of the dead body of Abdul Rasool (deceased) and observed the following injuries:- Injury No.1-A: Firearm entry wound with colour of abras ion 0.5 cm x 0.5 cm going below facial skin 6 cm below left eye and 6 cm from left ear lobule.
Injury No.1-B: Exit on the left side of neck 9 cm from injury No.1-A and 3 cm below ear measuring 1cm into 0.5 cm.
Injury No.2-A: Entry wound 0.5 cm x 0.5 cm going deep left chest 7 cm above left nipple and 9 cm from midline.
Injury No.2-B: Exit wound 1 cm x 1 cm below left scapula 10 cm from midline and 18 cm from base of neck.
Injury No.3-A: Entry wound 1 cm x .5 cm on top of left shoulder .
Injury No.3-B: Exit wound 1 cm x .5 cm posterior 3 cm from injury No.3-B.
Injury No.4-A: .5 cm x .5 cm entry wound on front of right arm. 10 cm from the top of the shoulder .
Injury No.4-B: Exit wound 1 cm x .5 cm on midback of right arm.
Injury No.4-C: Entry wound 1 cm into .5 cm on posterior fold of exila.
Injury No.4-D: Exit wound 1 cm x 1 cm below right scapula 9 cm from injury No.9-C and 20 cm from top of the shoulder .
Injury No.5: 0.5 cm x 0.5 cm wound of entry wound on mid front right arm metallic piece palpated and removed handed over to the police after sealing and signed.
According to the doctor , all the injuries were ante mortem and were caused by firearms. He opined that the cause of death in this case was injury No.2 which damaged the vital organ i.e. left lung leading to haemorrhage and shock. According to him, these injuries in the ordinary course of nature were sufficient to cause death of a normal person. The probable time between injury and death was stated to be within one hour and between death and post- mortem was described as within 18-hours.
6. After the closure of prosecution evidence, the learned trial court examined the appellant and his co-accused under section 342 Cr.P.C. In response to question "why this case against you and why the prosecution witnesses have deposed against you", the appellant replied as under:- "It was a blind murder. No PW was present at the place of occurrence. The incident took place near the Haveli of Mushtaq member but he was not produced by the complainant party. All the witnesses of F.I.R were chance witnesses. Actually it was the police which escorted the dead body from the spot to Jinnah Hospital. I was not present at the place of occurrence. I did not fire upon Abdul Rasool deceased. I also agitated before the IO that complainant had done great injustice to me. I have no motive to kill the deceased and I am innocent and pray for justice. I stated before the police that I had a land dispute with Abdul Rasool deceased and the deceased was not handing over my land. I stated before the police that the complainant party had burned down my house. The complainant also involved another accused Ghulam Murtaza in his supplementary statement. Ghulam Muhammad was my grandfather, who gave a plot to me. Complainant party use to pressurize me to return the said plot. I was involved only in order to deprive me from the said plot. Due to previous family grudge and disputes I have been involved in such blind murder."
The appellant did not opt to appear as a witness in his own defence under section 340 (2) of Cr.P.C. However , Tahir Sadique was produced as DW.1 in the defence.
7. On the conclusion of trial, the appellant was convicted and sentenced as afore-stated. Hence, the instant appeal and Murder Reference.
8. It is contended by the learned counsel for the appellant that though apparently the matter was promptly reported to police, yet the perusal of record suggests otherwise; that in the instant case, the ocular account is furnished by the witnesses who not only were related with the deceased but were also inimical towards the appellant; that the eyewitnesses miserably failed to prove their presence at the crime scene hence are not worthy of any credence; that based on admitted facts, the occurrence took place in the dark hours but even then, no source of light was brought on record; that on the similar set of evidence, co-accused namely Karamat was acquitted by the trial court hence the conviction of the appellant cannot be upheld while placing reliance on the same witnesses; that the ocular account furnished by the witnesses is belied by the medical evidence on the basis of inter see contradiction; that though, at the time of the registration of F.I.R, a specific motive was set up, however during the trial, no evidence was led in support thereof; that the bare perusal of the prosecution evidence gives rise to a reasonable doubt, the benefit of which was not extended to the appellant by the learned trial court.
9. On the other hand, the learned Additional Prosecutor General, assisted by the learned counsel for the complainant, strongly controverted the arguments advanced on behalf of appellan t and submitted that the instant case is arising out of promptly lodged F.I.R; that the appellant is not only nominate d in the crime report but is also ascribed a specific role of causing firearm injuries to the deceased; that the ocular account, in the instant case is furnished by the witnesses, who being residents of the same vicinity are natural witnesses; that the ocular account furnished by the two eyewitnesses is being duly supported by the medical evidence and getting further corroboration from the motive; that the abscondment of the appellant is a factor which provides further corroboration to the testimony of two eyewitnesses; that during the course of investigation, the appellant led to the recovery of weapon of offence reflecting his guilt and involvement in the commission of crime; that since the appellant committed the cold blooded murder of a young man, hence deserves no leniency .
10. Arguments heard. Record perused.
11. The case of the prosecution, so to speak, primarily hinges upon the ocular account furnished by Mansab Ali and Ghulam Rasool (PW.7 & 8), the medical evidence, brought on record through Dr.Iftikhar Ahmed Zahdi (PW.6). The prosecution sought corroboration from the motive as narrated by the two above named eyewitnesses as well as from the recovery of .12 bore gun (P.3), witnessed by Muhammad Afzal (PW.10). The abscondment of Liaqat Ali (appellant) was canvassed as an additi onal corroboratory material, in support of which Abdul Aziz 10084/HC (PW.5) appeared in the dock and tendered warrants of arrest (Exh.PW .5/A) and the proclamation (Exh.PW .5/D) of the appellant.
12. It divulges from the record that the occurrence, which formed basis of the instant case took place on 18.07.2009 at about 07:30 p.m. within the territorial jurisdiction of police station City Raiwind, District Lahore.
According to record, the police station is stated to be situated at a distance of about 18 kilometers from the crime scene. The matter was brought to the notice of Rauf Ahmed SI (PW.11) on his arrival in the General Hospital, Lahore through an application (Exh.PC), moved on behalf of Mansab Ali (PW.7) at about 09:20 p.m. From above, apparently it follows that the information of the occurrence was conveyed to the police without an amount of unnecessary delay but the perusal of the record suggests otherwise. According to the statement of Mansab Ali (PW.7), he did not accompany his deceased-son to hospital and the police met him for the first time, at the place of occurrence. It would be appropriate to reproduce relevant extract from his testimony , which is as under:- "I did not go to hospital along with my deceased son. The police for the first time, met me at the place of occurrence."
Such portion form the statement of Mansab Ali (PW.7) is in sharp contrast with the police proceedings mentioned at the bottom of F.I.R (Exh-PC), according to which the application for the registration of F.I.R was presented before the police in the General Hospital. This feature of the prosecution case casts doubt about the possibility of the F.I.R not having been registered at the time mentioned therein.
13. According to the case of the prosecu tion, the occurrence was witnessed by three persons namely Mansab Ali (PW.7), Ghulam Rasool (PW.8) and Muzaf far Ahmed (given up PW). According to the contents of the crime report (Exh.PC), three persons namely Liaqat Ali (appellant), Karamat Ali (since acquitted) and Shaukat Ali (PO) were saddled with the responsibility of having caused fire arm injuries to the deceased, which proved fatal and resulted into his death. It is noticed from the testimony of the two eyewitnesses that while appearing in the witness box, they came forward with conflicting versions. Mansab Ali (PW.7) ascribed the role of firing at the deceased only to Liaqat Ali (appellant) and Shaukat Ali (PO) whereas Ghulam Rasool (PW.8) held all the three assailants responsible for causing firearm injuries to the deceased. The learned law officer as well as the learned counsel for the complainant failed to address this anomaly , arising out of the deposition of above named two witnesses.
As per the details furnished by Mansab Ali and Ghulam Rasool (PW.7 & PW.8), the occurrence took place on 18.07.2009 at about 7:30 p.m. in district Lahore. In this part of the year, the sun sets in Lahore at about 07:07 p.m.
(in reference to www.timeanddate.com.). Though, specific timing of dusk in Lahore has not come on record in the instant case but since the question is of paramount importance for the just decisio n of the instant case, hence, we have peeped through above website and certain others in this regard. While doing so, we have in our minds the provisions of Chapter VII of Qanun-e-Shahadat Order , 1984 which is titled as "FACT WHICH NEED NOT BE PROVED ". According to Article 111 which comes within the same chapter , facts judicially noticeable need not be proved. For sake of reference, Article 1 11 is being reproduced below:- "Fact judicially noticeable need not be proved . No fact of which the Court will take judicial notice need be proved."
Now the question arises regarding which facts the Court can take judicial notice. In this regard, it is noticed that the legislatures have enumerated in Article 112 of Qanun-e-Shahadat Order , 1984 certain facts regarding which judicial notice can be taken by a Court. It would be in fitness of things to have a glance of the foregoing provision which is reproduced below:- "Facts of which Court must take judicial notice . (1) The Court shall take judicial notice of the following fact:
(a) All-Pakistan laws;
(b) Articles of W ar for the Armed forces;
(c) The course of proceeding of the Central Legislature and any Legislature establishe d under any law for the time being in force in Pakistan;
(d) The seals of all the Courts in Pakistan and of all Courts out of Pakistan established by the authority of the Federal Government or the Government representative, the seals of Courts of Admiralty and Maritime jurisdiction and of Notaries Public and all seals which any person is authorized to use by any Act or Regulation having the force of law in Pakistan;
(e) The accession to office, names, titles, functions and signatures of the persons filling for the time being any public of fice in Pakistan, if the fact of their appointment to such of fice is notified in the of ficial Gazette;
(f) The existence, title and national flag of every State or Sovereign recognized by the Federal Government;
(g) The divisions of time, the geographical divisions of the world, and public festivals, fasts and holidays notified in the of ficial Gazette;
(h) The territories under the dominion of Pakistan;
(i) The commencement, continuance and termination of hostilities between Pakistan and any other State or body of persons;
(j) The names of the members and officers of the Court and of their deputie s and subordinate officers and assistants, and also of all officers acting in execution of its process and of all advocates and other persons authorized by law to appear or act before it.
(k) The rule of the road on land or at sea.
(2) In all cases referred to in clause (1) and also on all matters of public history , literature, science or art the Court may resort for its aid to appropriate books or documents of reference.
(3) If the Court is called upon by any person to take judicial notice of any, fact it may refuse to do so unless and until such person produces any such book or document as it may consider necessary to enable it to do so."
In reference to the proposition in hand, it evinces that the Court can take judicial notice of the division of time and the matter of science. For ascertaining any question pertaining to above, the Court can seek aid from appropriate books or documents of reference. Since the facts mentioned in Article 112 of Qanun-e Shahadat Order, 1984 are judicially noticeable, hence, need not be proved through some evidence. The provisions embodied in Article 111 and 112 of Qanun-e-Shahadat Order, 1984 are exception to the general rules that all relevant facts must be proved either through oral or documentary evidence. The purpose of enacting above mentioned provisions apparently is that the Court may take judicial notice of a fact which is incontestably within public knowledge and is admitted by other party. Such fact can definitely be rebutted on the basis of some acknowledged substance.
From above, it can safely be gathered that since the occurrence took place after about 23-25 minutes of the dusk, hence the darkness had prevailed at the eventful time. In order to exclude all the hypothesis of the mistaken identification of the assailants, there was pressing need for the prosecution to prove the source of light and that too satisfactorily . However , it spells out from the record that the prosecution failed to discharge the above mentioned obligation. Neither in the site plan nor in the statements of the witnesses, any reference is made to some electricity bulb or pole. A wade through the record reflects that indeed no electricity bulb was installed at or near the crime scene. It would be in fitness of things to make reference to an extract from the statement of Mansab Ali (PW-7), which is as under:- "I did not show the electricity poles either to the I.O or the draftsman" .
It will not be out of place to reproduce a line from the cross-examination of Muhammad Ijaz Khan S.I (PW.11), which is to the following ef fect:- "An electricity pole is situated at the place of occurrence but it has no light. It is correct that I have not shown the electricity pole in site plan Ex.PK. It is also correct that I have not shown existence of any light in site plan Ex.PK."
The above referred extract, taken from the statement of Mansab Ali (PW.7) and Ijaz Khan S.I (PW.11) reasonably make obvious the non-availability of elect ricity light at the place of occurrence. It is further noted that according to Ghulam Rasool (PW.8), the inter se distance of the deceased and the witnesses was about 50-feet, whereas between the witnesses and the assailants much more than that. Such distance coupled with the darkness and non- availability of light, is giving rise to the possibility of mistaken identification of the assailants.
14. We have not been able to reconcile the conduct of Mansab Ali (PW.7), who is the real father of the deceased and yet despite seeing his real son in the pool of blood opted not to accompany him to hospital. It needs no mention that out of filial relationship, it is not expected form Mansab Ali (PW.7) to stay behind by leaving his son at the mercy of others. There is another important aspect of the case, which could not skip our notice and pertains to the delayed post mortem examination of the deceased. As discussed above, the occurrence took place at about 07:30 p.m. on 18.07.2009, however , the autopsy of the dead body of the deceased was conducted on the following day at about 12:50 p.m. If correctly calcu lated, the post mortem examination was conducted with a delay of about 17 hours. Despite making an exhaustive scrutiny of the record, we have not been able to come across any explanation for such delay in holding autopsy . Such aspect of the case is giving rise to a possibility that the occurrence remained un-witnessed and the story incorporated in the crime report an outcome of guess work and concoction. The Hon'ble Supreme Court of Pakistan in the case of Muhammad Ilyas v. Muhammad Abid alias Billa (2017 SCMR 54 ) while dealing with the delayed postmortem observed as under:- "Post-mortem examination of the dead body of Muhammad Shahbaz deceased had been conducted after nine hours of the incident which again was a factor pointing towards a possibility that the time had been consumed by the local police and complainant party in procuring and planting eye-witnesses and cooking up a story for the prosecution."
15. Last but not the least, it is noticed that initially , appellant along with Karamat Ali (since acquitted) and Shaukat (P.O) were implicated in the case with the allegation of having caused firearm injuries to the deceased. However , on the same set of evidence, Karamat Ali was acquitted by the learned trial court whereas the appellant was awarded death sentence and that too through a single judgment. It is of immense importance to mention here that the verdict of acquittal, pronounced in favour of Karamat Ali has not been challenged. Such an aspect gives rise to the proposition that the ocular account comprising upon the statement of Mansab Ali and Ghulam Rasool (PW.7 & PW.8) was considered deficient and was disbelieved to the extent of Karamat Ali. In such a situation, in order to prove the guilt of the appellant, independent corroboration is required. While holding so, this Court is guided by the Judgment of Hon'ble Supreme Court of Pakistan in the case of Akhtar Ali and others v. The State (2008 SCMR 6) wherein it was observed:- "It is settled law that eye witnesses found to have falsely implicated five out of eight accused then conviction of remaining accused on the basis of same evidence cannot be relied upon without independent corroboration".
16. In order to look for corroboration, we have gone through the motive part of the prosecution case and have found that at the time of registration of F.I.R as well as during the trial, a specific motive was taken up. It spells out from the record that the motive was canvassed as the registration of a criminal case against Liaqat Ali (appellant).
An in-depth scrutiny of the record reveals that in support of projected motive, except oral assertion, no material was placed on record. It needs no scholarly discussion that the registration of a previous criminal case, purportedly registered against the appellant, could easily be proved by tendering in evidence the copy of first information report. It is intriguing to observe that what to talk of placing on record the copy of said case, the PWs failed, even to give its particulars. Mansab Ali (PW.7) as well as Ghulam Rasool (PW.8) when cross-examined candidly conceded that they do not know the F.I.R number of the said criminal case. From the features mentioned above, we are inclined to draw an irresistible conclusion that the motive, as portrayed by the prosecution, is having no scintilla of truth. As a necessary corollary, we are constrained to hold that motive part of the prosecution case remained unproved. In such situation, we are of the considered view that prosecution miserably failed to get corroboration from motive part of its case. Likewise, the failure to prove motive has badly reflected to the prosecution case. Even otherwise, though the prosecution is not obliged to prove the motive in each and every case yet once the motive is set up then it must be established. In this respect, reference can be made to the case of Noor Muhammad v. The State and another (2010 SCMR 97) wherein the Hon'ble Supreme Court of Pakistan observed as under:- "Prosecution though not called upon to establish motive in every case, yet once it has set up a motive and fails to prove the same, then prosecution must suf fer the consequence and not the defence" .
17. The perusal of the medical evidence furnished by Dr. Iftikhar Ahmed Zahid (PW.6) reveals that the same is in conflict with the ocular account narrated by the two eyewitnesses. According to the case of prosecution, at the eventful time, Liaqat Ali (appellant) and Shaukat (P.O) were armed with a .12 gauge pump action whereas Karamat Ali (since acquitted) was equipped with a .30 bore pistol. According to the PWs all the three above named assailants fired from their respective weapons at the deceased which hit him on the right and left side of the back, shoulder and neck. It spells out from the testimony of Dr.Iftikhar Ahmed Zahid (PW.6) that though during post-mortem examination he noticed certain firearm injuries on the back of deceased but he declared them as exit wounds. Such a glaring contradiction between medical and ocular evidence can by no stretch of interpretation be ignored conveniently. It goes without saying that the purpose of bringing on record the medical evidence is primarily to gauge the veracity of the eyewitnesses. Such variance in the two types of evidence referred above, adversely reflects on the claim of the eyewitnesses regarding their presence at the crime scene and of having witnessed the occurrence. It needs no mention that the cartridge of a .12 bore gun comprises upon multiple pellets and thus causes several wounds of entries. In the instant case, though according to the medical evidence, Abdul Rasool deceased received four entry wounds yet all of them were found at isolated places on his person. In this backdrop, we have all the good reasons to hold that the injuries on the person of the deceased were not caused by a .12 bore gun. At the same time, the anomaly in medical and ocular evidence, strongly reflects the non-presence of the witnesses at the eventful place.
Even otherwise, it is settled principle of law that if the testimony of the eyewitnesses is disbelieved then no other evidence even of high degree and value would be sufficient to uphold the conviction of an accused in a case of capital punishment. In the case of Mst. Sughra Begum v. Qaiser Pervez and others (2015 SCMR 1142) wherein the Hon'ble Supreme Court of Pakistan gave the following observation:- "It is cardinal principle of justice that ocular account in such cases plays a decisive and vital role and once its intrinsic worth is accepted and believed then the rest of the evidence, both circumstantial and corroboratory in nature, would be required as a matter of caution. To the contrary , once the ocular account is disbelieved then no other evidence, even of a high degree and value, would be sufficient for recording conviction on a capital charge therefore, we have to see the probative value of the ocular account in light of the facts and circumstances of the case."
18. The facts and circumstances mentioned above, cumulatively , lead this court to draw a conclusion that on account of contradictory statements of the witnesses, unexplained delay in post-mortem examination and the conflict in medical and ocular evidence is giving rise to reasonable doubts, the benefit of which cannot be withheld from the appellant. Consequently , while giving benefit of doubt to Liaqat Ali alias Liaqi (appellant), Criminal Appeal No.1095 of 2012 is allowed, his conviction and sentence is set aside and is acquitted of the charge. Liaqat Ali alias Liaqi (appellant) shall be released forthwith if not required to be detained in another criminal case.
19. Resultantly , Murder Reference No.257 of 2012 is answered in the negative and death sentence awarded to appellant/convict namely Liaqat Ali alias Liaqi is NOT CONFIRMED .