Ch. Abdul Aziz, J. This judgment shall dispose of Criminal Appeal No.344 of 2011 (filed by appellants Muhammad Din and Muhammad Mushtaq against their conviction) and Reference sent by trial court under section 374 of Criminal Procedure Code, 1898 which is numbered as Murder Reference No.171 of 2011 for confirmation or otherwise of sentence of death awarded to Jamil Ahmed (who was on bail and escaped from the court on the pronouncement of impugned judgment), Muhammad Din and Muhammad Mushtaq (convicts). The appeal as well as the murder reference is originating from the judgment dated 25.02.2011 passed by the learned Additional Sessions Judge, Kasur, arising out of case FIR No.75/2004 dated 13.05.2004 for the offence under sections 302,324,148,149 PPC at Police Station Ganda Singhwala, Teshil and District Kasur . Learned trial court through the said judgment convicted and sentenced the appellants as well as their co-convict namely Jamil Ahmad as under:- Under section 148 PPC to undergo three years with fine of Rs.30,000/- each and in default thereof to further undergo two months SI each.
Under section 324 read with section 149 PPC to undergo eight years RI with fine of Rs.50,000/- each and in default thereof to further undergo six months SI each.
Under section 302 (b) read with section 149 PPC and awarded death sentence on two counts for committing qatl-i amd of Munir Ahmed and Sadiq (deceased). The appellants and their co-convict were also directed to pay Rs.200,000/- on two counts to the legal heirs of the deceased persons under section 544-A Cr.P.C. and in default of payment of the said amount, they were ordered to further undergo SI for six months consecutively.
2. Succinctly stated the case of the prosecution as unveiled by Muhammad Aslam complainant (PW.3) in FIR (Exh.PB/1) is to the effect that he is resident of Thathi Bukshey Wala and is cultivator by profession; that on 12.05.2004 in the evening Muhammad Sadiq, Munir Ahmad, Muhammad Yasin had come to their house in order to see him; that on 13.05.2004 at about 7:00 a.m., he along with Munir Ahmad, Sadiq son of Farzand Ali, Sadiq son of Hashim, Raj, Muhammad Ahmad, Muhammad Yasin, Yahya and Muhammad Saddique went to take a round of his agricultural land situated at Baghey Wala Khoh; that when they reached near the guava orchard, the accused persons namely Muhammad Din, Muhammad Nawaz, Muhammad Jameel, Zulfiqar Ahmed, Mushtaq Ali, Sarfraz and Muhammad Saleem alias Sundri, all armed with their respective rifles were hiding behind a hey mound and were sitting over there in consultation with each other; that suddenly they emerged at the scene and Muhammad Din exhorted his companions to catch hold of and to teach them a lesson for taking round of the land and to murder them; that Muhammad Nawaz fired from a shot from his rifle which hit on the front side of chest of Muhammad Sadiq; that the fire shot made by Jameel from his rifle hit at the right armpit of Munir Ahmad; that Muhammad Din made a fire shot from his rifle which hit Munir Ahmad on front side of right thigh and the fire made by Zulfiqar hit on the backside of shoulder of Munir Ahmad; that Muhammad Nawaz, Saleem alias Sundri, Muhammad Din and Sarfraz also made consecutive firing from their respective weapons, out of which the fire shot of Muhammad Nawaz hit at the chest of Muhammad Ahmed, whereas the fire shot made by Saleem alias Sundri hit at the mouth of Muhammad Ahmed; that the fire shot of Muhammad Din hit at the back of Muhammad Ahmad and the fire made by Mushtaq Ahmed landed on the front side of neck of Muhammad Yasin; that the fire shot of Sarfraz Ahmad hit Muhammad Yahya at his right thigh; that Munir Ahmad succumbed to the injuries at the spot; that all the accused decamped from the spot while making firing; that he (complainant), Muhammad Sadiq and Raj were taking the injured persons namely Muhammad Sadiq, Munir Ahmad, Muhammad Yasin and Muhammad Yahya to Kasur hospital but on the way, Sadiq son of Farzad died. The motive behind the occurrence statedly was the dispute of land between the parties.
3. The wheel of law was set in motion by Muhammad Aslam (complainant) on 13.05.2004 through his oral statement/fard e bayan (Exh.PB) before Muhammad Sadiq SI (PW.13) who on the basis thereof proceeded to chalk out the F.I.R (Exh.PB/1). Subsequent to the registration of F.I.R, Muhammad Sadiq SI (PW.13) along with other police officials visited the place of occurrence. He prepared applicatio n for postmortem examination (Exh.PQ), injury statement (Exh.PR) and inquest report (Exh.PS) of Munir Ahmad (deceased). He also collected blood stained earth vide recovery memo (Exh.PT). During the spot inspection, he secured three rifles (P.2,P.3,P.4), one.12 bore gun (P.5), a bag containing 40 live bullets (P.6/1-40), a bag containing 80 live bullets (P.7/1-80), a bag containing 140 live bullets (P.8/1-140), and a bag containing 40 empty cartridges (P.9/1-40). He also took into possession six empty cartridges of .8 mm (P.10/1-6), four empty cartridges of .12 bore (P.11/1-4), 54 empties of .7 mm (P.12/1-54) through recovery memo Exh.PG. He also prepared application for the postmortem examination (Exh.PU), injury statement (Exh.PV) and inquest report (Exh.PW) of Muhammad Sadiq (deceased).
While on his way to police station, Muhammad Sadiq SI (PW.13) received information qua the death of Salim Sundri (one of the accused), upon which he along with ASI Bashir and other constables reached General Hospital, Lahore. On his arrival to hospital, Aisha Bibi wife of accused Muhammad Din met him and produced application (Exh.PZ) for the registration of FIR, which was forwarded to the police station and thereupon a cross version was recorded. Subsequent to that he prepared application for autopsy on the dead body of Salim (Exh.PAA) and also prepared his injury statement (Exh.PBB) as well as the inquest report (Exh.PCC). He thereafter sent the dead body of Salim to DHQ Hospital, Kasur for autopsy under the escort of Maqbool and Abdul Qayyum constables. He recorded the cross-version on behalf of Aisha Bibi and returned to the police station. He then visited the place of occurrence and took into possession blood stained earth from the place of murder of Salim alias Sundhri through memo Exh.PDD. He also recorded the statements of the relevant witnesses under section 161 Cr.P.C. as well as got prepared scaled site plan through Muhammad Tayyab Patwari on 25.05.2004.
Investigation of this case was also conducted by Irshad Hussain SI (PW.14) who on 19.04.2007 arrested Jamil (convict). On 22.04.2007 in pursuance of his disclosure Jamil (convict) led to the recovery of .7 mm rifle (P.1) which was taken into possession vide recovery memo (Exh.P A). Since the convict could not produce any valid arms licence of the recovered rifle, hence, a separate case vide F.I.R under section 13 of Arms Ordinance XX of 1965 was registered against him.
4. The prosecution, in order to prove its case against the appellants and their co-accused produced sixteen PWs which include Muhammad Ahmed (PW.1), Muhammad Yahya (PW.2) and Muhammad Aslam complainant (PW.3) who are the eyewitnesses of the occurrence, Dr.Ashfaque (PW.4) who furnished the medical evidence and Muhammad Sadiq SI (PW.13) and Irshad Hussain SI (PW.14) who conducted the investigation of this case. The remaining prosecution witnesses more or less were formal in nature. The learned trial court also examined Dr. Salim-ur-Rehman (CW .1).
5. Dr. Ashfaque Muhammad Akhtar (PW.4) on 14.05.2004 at about 9:00 a.m. conducted the post-mortem examination of the dead body of Munir Ahmad (deceased) and observed the following injuries:-
1. A lacerated, deep going wound % x % cm on the back of medial part of right shoulder . Margins of the wounds were graphed and inverted.
2. A lacerated wound 5 x 4 cm on right axilla. Margins of the wound are averted. Corresponding hole of this injury was present on Qameez.
3. A lacerated wound deep going % x % cm on anterior lateral surface of middle part of right thigh. Margins of the wound were averted.
4. A lacerated wound 3 x % cm on anterior lateral surface of middle part of right thigh. Margins of the wound were averted.
5. A lacerated wound 6 x 1 % cm on right side of head 1 1 % cm from right ear underline bone was visible.
According to the doctor , the cause of death in this case was shock due to severe haemorrhage occurred because of injuries No.1 and 2 which damaged right axillary blood vessels. The doctor further opined that injuries No.1 and 2 were ante mortem and sufficient to cause death in ordinary course of nature and were caused by firearm. The probable time between injury and death was stated to be half an hour approximately and between death and postmortem was described as about 26 hours.
On the same day at 12:05 Noon, Dr. Ashfaque conducted the postmortem examination on the dead body of Muhammad Sadiq and observed the following injuries:-
1. A lacerated wound 2 % cm margins graphed, on front of left side of chest, 5 cm from midline 7 cm superior medial to left nipple corresponding holes were present on Qameez and bunyan.
2. A lacerated wound 3 % cm x 1 % cm on anterior medial part of left axilla. Margins were lightly graphed.
Corresponding hole was present on bunyan but not on Qameez.
3. A lacerated wound 7 x 3 cm oblique in shape on medial side of upper part of left upper arm corresponding hole was present on Bunyan and not on Qameez.
4. A lacerated wound 1 x % cm on posterio medial side of middle part of left upper arm 6 cm interio posterior to injury No.3. Corresponding hole was present on Qameez and bunyan.
The doctor was of the opinion that the cause of death in this case was shock due to severe haemorrhage caused collectively by injuries No.1 to 4 resulting in the damage of major blood vessels in left axilla and left upper arm.
According to him, all these injuries were ante mortem and were caused due to firearm. According to him these injuries were sufficient to cause death in the ordinary course of nature. The probable time between injuries and death was stated to be half an hour and between death and post-mortem was described as 20 hours approximately .
He on 13.05.2004 at 11:45 a.m., also medically examined Muhammad Ahmad (P.W-1) and observed the following injuries:-
1. An oblique lacerated wound 3 x 1 cm margins inverted and graphed on right cheek. Depth not measured. X-ray was advised.
2. Lacerated wound 2 x 1 cm on just behind right mandible angle % cm below the lower end of right ear pinna.
Margins everted and lightly graphed. DNM.X-ray was advised.
3. A lacerated wound 2 x 2 cm on right side of back of neck 5 cm right to midline. DNM X-ray was advised. Margins of this wound were lightly graphed.
4. An oblique lacerated wound 4 % x 1 /4 of middle of upper part of chest. Margins of the wound were lightly graphed. DNM.1 According to the doctor, the duration of these injuries was about three hours approximately and were caused through firearm weapon.
He on 13.05.2004 at 9.05 a.m. also medically examined Muhammad Yaseen (Not produced as P.W) and observed the following injuries:-
1. Lacerated wound %2 x %2 cm margins graphed and inverted on left lateral side of neck 3 %2 below the lower end of left ear pinna. Bone was deep going. DNM.
2. Lacerated wound 2 x 1 cm area on medial side of back of right shoulder 2 cm from midline. Margins of wound were everted. DNM.
According to the doctor , the probable duration of injuries was about two hours approximately and the kind of weapon used was firearm.
He on 13.05.2004 at 10:30 a.m. also medically examined Muhammad Salim alias Sundri (one of the accused) and observed the following injuries:-
1. A lacerated circular deep going wound %2 x %2 margins graphed and inverted on right side of abdomen (in area of right iliac fossa). 8 cm inferio lateral to the umbilicus wound was bleeding. DNM.
2. A lacerated wound 1 x 1m cm margins everted on right lumber region 4 1/2cm from midline 2 %2 cm above right iliac crest. W ound was bleeding profusely . DNM condition of the patient was very serious.
According to the doctor , the patient was referred to LGH, Lahore and the probable duration of injury was about 1 %2 hours approximately . The kind of weapon used was firearm.
Dr. Salim ur Rehman (CW.1) on 14.05.2004 conducted the postmortem exam ination on the dead body of Muhammad Salim alias Sundri (deceased) and observed the following injuries:-
1. A circular wound of entrance of fire arm on right iliac fossa with inverted margins.
2. A circular wound of exit of firearm on the back of right side of abdomen.
According to the doctor , the cause of death in this case was excessive haemorrhage due to injury No.1 (firearm injury) which damaged major blood vessels (iliac) and intestines. The doctor further opined that the injury was sufficient to cause death and was ante mortem in nature. The probable time between injuries and death was stated to be 5-6 hours and between death and post-mortem was described as within 24 hours.
6. After the conclusion of prosecution evidence, the learned trial court examined the appellants and their co-convict namely Jamil Ahmed under section 342 Cr.P.C. Jamil Ahmed (convict) and Muhammad Din (appellant) in response to question "why this case against you and why the PWs have deposed against you", made almost the same reply .
The reply made by Jamil Ahmad (convict) reads as under:- "I and my brother Muhammad Nawaz are the owners in possession of the land including Khasra Number 1643 and 1625 regarding which Aslam complainant and his brothers who are desperate persons and also has got criminal antecedents wanted to take illegal posse ssion. We have planted guava groove in the said land and this piece of land was very fertile and was situated near the metalled road. The complainant Aslam and his brothers were adamant to take over the illegal possession of the said land from us. Consequently we were restrained to have a course from the civil court and we filed suit for perpetual injunction regarding 120 kanals of agricultural land situated in Khata No.88 comprising of various Khasra No.1625 and 1643 on 30.3.2004. The learned Civil Judge vide his order dated 1.4.2004 issued injunctive order against defendants Muhammad Aslam etc. We also approached Muhammad Tayyab Patwari PW, who got recorded rapatt No.375 dated 8.4.2004 regarding the said injunctive order against Aslam complainant etc who were then residing at village Dauburji which is situated at distance of 15 kilometers from the place of occurrence. During the cross-examination PW.14 Tayyab also explained that vide Khasra Girdawari Ex.PW 14/1 regarding the said Khasra number guava groove owned and possessed by was entered in the revenue record. We according to the said Khasra Girdawari remained in possession of the said land till October 2005. In the garb of the present case, the complainant and his companions damaged our guava groove and my mother Aisah Bibi lodged F.I.R No.126/2004 dated 9.8.2004 at P.S. Ganda Singh Wala inspite of issuance of injunctive order passed by the civil court. Actually according to the cross version and statement of my brother Nawaz, he alongwith Salim alias Sundri were present in the guava groove and were watering the fields when complainant along with his companions nominated in the cross version being aggressors in order to forcibly tried to take possession of our land came there while armed with lethal weapons mentioned in Ex.PG and other weapons at the spot resorted to indiscriminate firing at Nawaz and Salim alias Sundri and Salim alias Sundri sustained firearm injuries at the hands of the complainant party. They resorted to firing in retaliation and that neither Muhammad Din my father, myself and my brother Zulfiqar and Mushtaq and Sarfraz (since dead) cousins of my father were present at the place of occurrence. I along with my said relatives have been roped in this false case while widening the net and in order to inculpate all our family members. My father Muhammad Din and Mushtaq were exonerated by all the IOs during the investigation. I was not present at the spot and is totally innocent. I am facing the agony of trial of this case since my arrest continuously."
Mushtaq Ahmed (appellant) while answering to the same question made the following reply:- "I am close relative of my co-accused Muhammad Din etc. I have no concern with the alleged incident. I was declared innocent by all the I.Os as I was not present at the alleged time and place of occurrence. The PWs have deposed falsely against me due to my relationship with my co-accused."
Neither the appellants nor their co-accused opted to make statement under section 340 (2) of Cr.P.C., however , they produced Mst. Ayesha Bibi and Muhammad Amin as DW.1 & DW .2 in their defence.
7. After the completion of trial, the learned trial court convicted and sentenced the appellant as mentioned in para one. Hence, the instant appeal and Murder Reference.
8. It has been contended by learned counsel for the appellants that though apparently the instant case is arising out of promptly lodged F.I.R, however the detailed perusal of the record reflects otherwise; that in the instant case the ocular account is furnished by the three witnesses who were found guilty of making dishonest improvements and omissions in their statements before the court, hence, are not worthy of any reliance; that from the perusal of the record it reasonably evinces that the complainant party became the victim of their own aggression when they tried to take forcible possession of the land belonging to the appellants; that the ocular account is strongly belied by the medical evidence as there are glaring contradictions between the two; that the eyewitnesses on account of multiple disputes and litigation with the accused persons were interested and inimical against them, hence, their testimony cannot be relied upon unless strongly corroborated and supported from other circumstances; that the initiation of aggression, which resulted into this unfortunate incident can safely be attributed to the complainant party as not only they committed the murder of the accused namely Saleem alias Sundri but during the spot inspection, the police also recovered the weapons and ammunition from the crime scene belonging to the complainant party; that there is unexplained and mysterious delay in holding the autopsy of the two deceased persons which has further damaged the theory of the prosecution case advanced by the eyewitnesses; that even during the course of investigation it was unearthed that the land in question was not only under the ownership of the appellants but also was in their possession; that the learned trial court while awarding the conviction to the appellants altogether ignored the defence version of the appellants, according to which Muhammad Nawaz and Saleem alias Sundri resorted to firing and that too only to counter the murderous assault launched by the complainant party; that since the statement of Muhammad Ahmad (PW.1) was recorded with considerable delay of one month, hence, he is not worthy of any credence; that there are many doubts and discrepancies arising out of the prosecution case, the benefit of which was not extended to the appellants.
9. On the other hand, learned Additional Prosecutor General assisted by learned counsel for the complainant strongly controverted the arguments advanced by learned counsel for the appellant s and contended that the instant case is arising out of promptly lodged F.I.R; that in such prompt crime report the appellants are specifically nominated and that too in reference to the acts performed by them in the commission of crime; that the guilt of the appellants is established on the basis of three eyewitnesses, being residents of the same vicinity hence are natural witnesses; that the statements of three eyewitnesses are being duly supported from the medical evidence brought on record through Dr. Ashfaque Muhammad Akhtar; that out of three witnesses who furnished the eyewitness account one namely Muhammad Ahmed received firearm injuries during the occurrence and that such injuries on his person are the stamp of his presence at the crime scene, hence, his testimony is to be accepted even without there being any independent corroboration; that the recovery of .7 mm rifle affected on the disclosure and pointation of Jamil (appellant) provides sufficient corroboration to the case of the prosecution; that since the appellants have participated in the occurrence in which two persons lost their lives, whereas three others received firearm injuries, hence, they are not entitled to any leniency .
10. Arguments heard. Record perused.
11. The case of the prosecution, so to speak, primarily hinges upon the ocular account furnished by three witnesses namely Muhammad Ahmed, Muhammad Yahya and Muhammad Aslam (PW.1 to PW.3) and the medical evidence brought on record through Dr. Ashfaque Muhammad Akhtar (PW.4). The prosecution sought further corroboration from the motive which was canvassed as a land dispute between the parties and the recovery of .7 mm rifle affected from Jamil Ahmad (appellant) witnessed by Muhammad Ahme d, Muhammad Yahya (PW.1 & PW.2).
12. It divulges from the record that the occurrence which gave rise to the registration of the instant case took place on 13.05.2004 at about 7:00 a.m. within the area known as Thathi Bakhshay Wala situated within the territorial jurisdiction of Police Station Ganda Singhwala, District Kasur. According to the record, the detail of the occurrence was conveyed to police through the statement of Muhammad Aslam (PW.3) at 9:30 a.m. which was transcribed into F.I.R (Exh.PB/1) by Muhammad Sadiq SI (PW.13). According to column No.4 of the F.I.R (Exh.PB/1), Police Station Ganda Singhwala is situated at a distance of 26-kilometers from the crime scene. From above, apparently it follows that the matter was promptly reported to the police. No doubt the prompt reporting of the crime to the police provides strength to the case of the prosecution as gener ally it excludes the possibility of fabrication of facts and false implication of innocent persons. However , since the menace of padding through the stoppage of station diary (Rozenamcha) etc. has penetrated deep into police working, hence, the Courts have to be vigilant while giving a finding regarding the time of the registration of crime report. Instead of blindly following the time of the report of the matter to the police as mentioned in the first information report, the Courts have to evaluate other attending circumstances as well in this regard.
In the instant case, the autopsy of the dead bodies of two deceased persons was conducted on the following day by Dr.Ashfaque Muhammad Akhtar (PW.4) and for the solitary reason of non-availability of the police documents.
It would be appropriate to make reference to the relevant extract from his testimony which is as under:- "The dead bodies of Munir Ahmad and Muhammad Sadiq along with their papers were not produced before me for conducting autopsy . Had the papers along with dead bodies been produced before me, I would have conducted the postmortem examination on 13.05.2004. "
The above extract gives traces of the F.I.R not having been registered at the time mentioned therein. It further evinces from the statement of Muhammad Aslam complainant (PW.3) that before approaching the police station for the purpose of intimation regarding the occurrence, he shifted the injured persons and one of the deceased to the hospital and then proceeded to the police station for reporting the matter . In this regard, it would be in the fitness of things to reproduce the relevant portion from the examination-in-chief of Muhammad Aslam (PW.3) which is as under:- "The dead body of Sadiq son of Farzand was brought to the hospital. Muhammad Ahmad, Yahyha and Yaseen were got admitted in the hospital. Thereafter , I went to the police station and made my statement which is Ex.PB. It was read over to me and I thumb marked the same. "
The perusal of the medical record further unveils that Muhammad Ahmed, according to his MLC (Exh.PE/3) arrived in the hospital at about 11:45 a.m. From above, it can safely be gathered that the statement of Muhammad Aslam (PW.3) for the registration of F .I.R was recorded even thereafter .
The features mentioned above cumulatively reflect that the possibility of the F.I.R not having been registered at the time mentioned therein cannot be ruled out.
13. In order to bring home the guilt of the appellants, three eyewitnesses namely Muhammad Ahmed, Muhammad Yahya and Muhammad Aslam (PW.1 to PW.3) appeared in the dock. According to the detail of the occurrence narrated by them, the incident took place when on the eventful day they along with deceased persons and others went to have a look of their agricultural land. While they were at a distance of 5/6 karam from a heap of chaff, the appellants namely Muhammad Din and Muhammad Mushtaq along with six others including Jamil Ahmed (convict) emerged on the scene. All of them were waiting in ambush while armed with different weapons behind the heap of chaff. The aggression of the appellants and their co-accused led to the death of two persons namely Muhammad Sadiq and Munir and injuries to three persons namely Muhammad Ahmad (PW.1), Muhammad Yahya (PW.2) and Yaseen (given up PW). For the injuries on the person of deceased and the injure d, the PWs held seven persons responsible and proceeded to attribute them roles in reference to respective injuries.
A wade through the prosecution case reveals that the complainant Muhammad Aslam (PW.3) was having a dispute with Muhammad Jamil (convict) and his brother Muhammad Nawaz (convicted in a subsequent trial) arising out of the same piece of land, whereupon the instant bloodbath took place. It is important to mention here that Muhammad Jamil (appellant) etc. had obtained an injunctive order against Muha mmad Aslam etc. from the civil court through order dated 01.04.2004. In addition to the above dispute, both the parties on account of multiple litigation arising out of civil and criminal cases, were on worst of terms with each other and were having heard pitched enmity . This feature of the case makes the eyewitnesses as inimical towards the accused without an element of exaggeration. As per rule for appraisal of evidence of a partisan witness, in order to gain credence, the testimony of such like witness is required to be corroborated and supported from other circumstances of the case as well. While holding so, the guidance can be sought from the observation of the Hon'ble Supreme Court of Pakistan expressed in the case titled as Umar Hayat and 3 others v. The State (1997 SCMR 1076 ) which is as under:- "It is a settled position of law that evidence of a partisan witness requires corroboration before the same is relied on for conviction. In the case of Muhammad Nawaz v. Abdul Khaliq and others (1971 SCMR 500) the prosecution witnesses were not only related inter se but they were also related with the dece ased and it was held that such evidence required some corroboration to ensure the witnesses were speaking the truth. "
Out of the three eyewitnesses produced before the trial court, Muhammad Ahmed (PW.1) received injuries during the occurrence. The injures on his person were canvassed as stamp of his presence at the crime scene. However , it is equally important to observe here that there are multiple factors which provide sanctity to the statement of a witness and the receipt of injuries during the occurrence is one of them. In order to attach legal credence to the statement of such a witness, the courts are obliged to scrutinize his testimony and if the recital of it gives rise to a doubt about his statement, its benefit is to be given to the accused. It evinces from the record that the statement of Muhammad Ahmed (PW.1) under section 161 Cr.P.C. was recorded after about one month of registration of F.I.R and that too without affording any explanation in this regard. For ready reference, an extract from the cross- examination of Muhammad Ahmed (PW .1) is being reproduced below:- "My statement in this case was recorded by the police thrice. My first statement was recorded at the P.S. by the SHO Khan; second statement was recorded by Gara DSP Investigation and third statement was recorded at Crime Branch, Lahore. My first statement was recorded after one month of the occurrence. "
Such unexplained delay in recording 161 C.r.P.C statement has made Muhammad Ahmed (PW.1) unworthy of any credence and makes it equally unsafe to award or to sustain the conviction on the basis thereof. More so, when it is evident from record that no explanation for the delay in recording his police statement, even frail in nature, spells out from the record. While holding so, we are guided by the observation of the Honble Supreme Court of Pakistan expressed in the case titled as Muhammad Asif v . The State (2017 SCMR 486 ) wherein it was observed as under:- "There is a long line of authorities/precedents of this court and the High Courts that even one or two days unexplained delay in recording the statement of eye-witness would be fatal and testimony of such witnesses cannot be safely relied upon."
14. Though at the time of the registration of F.I.R, seven persons were arrayed as assailants, however , on account of abscondment of some of them, they were tried and convicted separately . In the first trial, the appellants (Muhammad Din and Mushtaq) along with Jamil (convict) were tried and convicted through the impugned judgment. Since Muhammad Jamil skipped from the Court at the time of pronouncement of judgment, hence, no appeal against conviction has been prefe rred on his behalf and instead only a murder reference is placed before this Court for the confirmation or otherwise of his death sentence.
15. Since the instant murder reference (M.R.No.171 of 2011) pertains to the three convicts namely Jamil, Muhammad Din and Muhammad Mushtaq, hence, it would be appropriate to mention their roles as it divulges from the statements of the eyewitnesses. It spells out from the statements of the three eye witnesses that Jamil Ahmed (convict) is saddled with the responsibility of having caused a firearm injury on the right armpit of Munir Ahmed (deceased) whereas Muhammad Mushtaq (appellant) is burdened with the blame of having inflicted a fire arm injury on the neck of Muhammad Yaseen (having been given up as unnecessary). So far as, Muhammad Din (appellant) is concerned, he is alleged to have caused an injury on the right thigh of the Munir Ahmed (deceased) as well as an injury on the back of Muhammad Ahmed (PW .1).
As regards the role of causing fire arm injury on the right armpit of Muhammad Munir (deceased) ascribed to Jamil Ahmed, it is noticed that though the docto r noted an injury on the same locale yet he described it as an exit wound.
From such aspect of the case, it follows that the ocular account to the extent of role attributed to Jamil Ahmed (convict) is belied by the medical evidence. So far as the role of causing a firearm injury on the neck of Muhammad Yaseen (given up PW) assigned to Muhammad Mushtaq (appellant) is concerned, suffice it to say that since Muhammad Yaseen never appeared in the dock to tell the tale of injuries on his person, hence the primary evidence was withheld by the prosecutio n and that too without assigning any acceptable explanation. From the non-production of Muhammad Yaseen (injured), an inference can safely be drawn that had he been produced before the trial court, he would not have supported the prosecution case. While holding so, we are enlightened from the observations of the Hon'ble Supreme Court of Pakistan in the cases reported as Muhammad Saleem v.
Muhammad Azan and another (2011 SCMR 474) and Khalid alias Khalidi and 2 others v. The State (2012 SCMR 327).
Now adverting to the case of Muhammad Din, he is alleged to have caused injuries on the right thigh of Munir Ahmed (deceased) and on the back of Muhammad Ahmed (PW.1). So far as the allegation of having caused an injury on the thigh of Munir Ahmed (deceased) is concerned, it spells out from the record that during autopsy of his dead body, the doctor noticed an injury on his right thigh, however he found its margins as averted, which makes it an exit wound. Likewise, during medical examination of Muhammad Ahmed (PW.1), he found no injury on his back and instead noticed a wound on the back of his neck.
16. It would be of immense importance to mention here that the appellants, during the course of investigation as well as at trial stage, came forward with a specific defence, the detail of which stands mentioned in the statement of Jamil Ahmed (convict) recorded under section 342 Cr.P.C. Since its detail is mentioned in para-6 above, hence, no useful purpose is likely to be served to recapitulate the same as it will be an exercise in futility . However , precisely , it is urged in the defence version that Muhammad Jamil (convict) and his brother Muhammad Nawaz were owners in possession of a piece of land situated in Khasra Nos.1643 & 1625 and were locked in litigation with Muhammad Aslam (PW.3) etc. In this backdrop, on the eventful day, Muhammad Nawaz (tried and convicted separately) and Muhammad Saleem Sundri (deceased) were present in their fields to irrigate their guava plants. Muhammad Aslam (PW.3) along with others arrived there while equipped with weapons in order to take forcible possession of the land and resorted to indiscriminate firing upon them and thereby caused injuries to Muhammad Saleem alias Sundri. In an urge to save their lives, Muhammad Nawaz and Saleem alias Sundri resorted to firing in return. It is evident from the defence version that Saleem alias Sundri, who received firearm injuries during the occurrence died on the same day. It is of immense importance to mention here that the grievance arising out of the act of Muhammad Aslam etc. (complainant party of the instant F.I.R) was voiced before the police through an application of Mst.
Ayesha Bibi wife of Muhammad Din and accordingly a cross-version was also registered on the same day .
17. From above, it unveils that both the parties have come forward with their respective stances and this aspect makes the instant case of two versions. It is cardinal principle of appraisal of evidence that in cases where an accused comes forward with a specific defence and more so one of those contemplated in the Chapter-IV known as "GENERAL EXCEPTIONS", the Court has to review the entire evidence arising out of prosecution version as well as the defence structured by the accused. The two versions are to be appraised in separate compartments and if from the recital of the prosecution case the accused is found connected in the commission of crime, he is not liable to a guilty verdict solely on the basis thereof. Instead, the Court in such an eventuality has to subject the defence version to a scrutiny in order to find out its truth or otherwise. If from the appraisal of defence version, it is unearthed that the version of accused gives rise to a doubt regarding the correctness of the theory of crime advanced by the prosecution, its benefit is to be extended to the person facing the trial. Likewise, the failure to prove defence version does not call for awarding of conviction. Even in such a situation, the Court is still required to go through the prosecution case and if comes across any feature which goes on to establish the existence of some doubt regarding the missing of an essential constituent ingredient of the crime like in the cases of Qatl-i-amd the requisite intention and knowledge or the lack of motive, its benefit ought to be extended to accused. It needs no mention that the entitlement of an accused to the benefits arising out of above work out is not a matter of grace but as of right. While appraising the defence version, the Court has not to have resort to a pick and choose approach and instead is either to accept or to reject it in its entirety. Such consistent rule of appraisal is extracted from the cases reported as Woolmington v. Director of Public Prosecutions (1935 Appeal Cases 462), Muhammad Aslam alias Aslam v. The Crown (PLD 1953 FC 115), Muhammad Siddik v. The Crown (PLD 1954 FC 112), Nadeem-Ul-Haq Khan and others v. The State (1985 SCMR 510) and Javaid v. The State (PLD 1994 SC 679). The above principle of appraisal of evidence which is salutary in nature is further endorsed by the Hon'ble Apex Court of the country in the case of Muhammad Akram v. The State (2012 SCMR 440) and further followed by this Court in the recent judgment reported as Muhammad Nadeem alias Nadeem Hussain etc. v.
State, etc. [(PLJ 2017 Cr. C. (Lahore) 1001]. It would be in fitness of things to reproduce the observation of the Hon'ble Supreme Court of Pakistan expressed in the case of Muhammad Akram (supra) which is as under:- "It is cardinal principle of law that in such like cases of two versions, one is to be believed in toto and not in piecemeal. This proposition of law is sell settled by now as reflected in the case of Safdar Ali v. Crown (PLD 1953 FC 93) wherein it has been held that in a criminal case it is duty of the court to review the entire evidence that has been produced by the prosecution and the defence. If, after examination of the whole evidence the court is of the opinion that there is reasonable possibility that the defence put forth by the accused might be true, it is clear that such a view reacts on the whole prosecution case. In these circumstances, the accused is entitled to the benefit of doubt not as a matter of grace but as of right because the prosecution has not proved its case beyond reasonable doubt."
In the above backdrop, it is observed that since the appellants have come forward with a specific defence that the occurrence took place on a land situated in Khasra Nos.1625 & 1643, which was in their possession, hence, we have scanned the record to evaluate this aspect of the case. The recital of the evidence produced by none other than the prosecution gives rise to reasonable probability of the defence version having some truth in it. It is further evident from the record that the stance of the appellants regarding the occurrence having taken place in Khasra Nos.1625 & 1643 was even affirmed by the Investigating Officer namely Muhammad Sadiq SI (PW.13), who went on to say that the complainant party produced no documentary evidence regarding their claim of being owner in possession of the land in question. For advantage sake, the relevant extract from the cross-examination of Muhammad Sadiq SI (PW.13) is being reproduced below:- "According to the scaled site plan prepared by the Patwari and according to the Revenue record, the place where the occurrence took place was Khasra numbers 1625 and 1643. The complainant party has not produced any documentary evidence regarding the ownership and possession of the above said Khas4ra Nos. i.e. 1625 and 1643. "
So far as Muhammad Tayyab Halqa Patwari (PW.15) is concerned, he while appearing in the witness box stated without ambiguity that the crime in the instant case occurred at a piece of land falling in Khasra Nos.1643 & 1625 of village Thathi Bakhseywala. After consulting Khasra Girdawari of period commencing from 20.03.2001 till 23.04.2004, the attested copy of which was placed on record as PW.14/1, Muhammad Tayyab (PW.15) stated that Muhammad Nawaz etc. sons of Muhammad Din (accused) remained in the possession of land in dispute till October , 2005. Last but not the least, Muhammad Tayyab (PW.15) admitted in unequivocal terms that Muhammad Nawaz etc. (accused) also produced before him an injunctive order issued by civil court in their favour , which was accordingly incorporated in Rozenamcha W aqiati of the village through entry No.375 dated 08.04.2004.
It is of immense importance to mention here that this was the stance of the appellant that the land in question was in their possession and they had planted guava orchard thereupon. Though all the three eyewitnesses came forward with a blatant denial regarding the presence of guava orchard on the land where the crime scene is situated, yet such stance is strongly controverted from the record. Muhammad Tayyab Halqa Patwari (PW.15), in reference to Khasra Nos.1643 & 1625 admitted the presence of guava plants in the following words:- "According to Khasra Girdawari dated 19.03.2003 guava groove was cultivated in the above said Khasra numbers and this entry remained uptil Kharif 2004. V olunteered that it was cut in October , 2004. "
From above, it can safely be concluded that firstly the occurrence took place in Khasra Nos.1643 & 1625 as claimed by the appellants. Secondly , the land in question was in the possession of none other than the accused party . Lastly , the stance of the appellants regarding the presence of guava orchard on the land is being supported from the revenue record as well.
18. Now the question arises that whether the defence of the appellants regarding the attribution of initiation of aggression culminating into the instant occurrence is having some shred of truth or not. It would be advantageous to recapitulate that as per defence version, Muhammad Aslam (PW.3) etc. arrived at the crime scene while equipped with weapons having ultimate design to take forcible possession of the disputed land. A wade through the record of the case unveils that at the time of first visit to the crime scene, Muhammad Sadiq SI (PW.13) secured a bulk of arms and ammunitions through recovery memo (Exh.PG) comprising upon three rifles (P.2 to P.4), one .12 bore gun (P.5) and hundreds of live bulle ts of different bore lying near the dead body of Munir (deceased). It is of paramount importance to mention here that one of the guns recovered from the spot was belonging to Muhammad Saddique (father of Muhammad Yahya PW, who was given up as being unnecessary). For reference sake, an extract from the cross-examination of Muhammad Sadiq SI (PW .13) is mentioned below:- "The licence gun of Muhammad Siddique father of Muhammad Yahyah PW was amongst the recovere d weapons. "
We have also gone through the statement of Bashir Ahmed SI (PW.6), which further supports the defence version of the appellants. He stated with clarity that some of the weapons and ammunition were found wrapped with the dead body of Munir (deceased).
The above features of the case give rise to a query that to whom this bulk of weapons belong. We have given a considered thought to the proposition and have found that all the three eyewitnesses consistently stated that after the occurrence the assailants made good their escape from the crime scene while resorting to aerial firing. None of them is found to have deposed to the effect that the accused persons while leaving the crime scene, left behind their weapons. In such situation, we are constrained to hold that the recovered weapons belong to the complainant party .
19. Lastly, it is observed that the receipt of firearm injuries by one of the accused namely Saleem Sundri and his subsequent death on the same day has not been justified by the prosecution in any manner. This aspect gains more importance when seen in the context of the allegation of having caused a firearm injury on the face of Muhammad Ahmed (PW.1). From such allegation, it evinces that the presence of Saleem Sundri at the crime scene is an undisputed fact. Likewise, the receipt of injuries by Saleem Sundri during the occurrence and his arrival in the hospital is admitted even by Dr. Ashfaque Muhammad Akhtar (PW.4), who provided him medical treatment as well at about 10:30 a.m. The admission of Muhammad Sadiq SI (PW.13) regarding the death of Saleem Sundri due to the injuries received during the occurrence and holding of his autopsy on his application by Dr. Salim-ur-Rehman (CW .1) can best be termed as a final nail in the cof fin of prosecution case.
20. The features mentioned above reasonably reflect that the defence version is getting ample support from the statements of the prosecution witnesses. None of the witnesses mentioned above was either declared hostile or was urged by the prosecution to be re examined. It goes without saying that if the version of the accused is being supported by the evidence of adversaries, then this is the best defence. In these circumstances, the pivotal question which needs to be decided pertains to the nature and the extent of the availability of right of self defence.
The defence version of the appellants can plainly be interpreted to the effect that Muhammad Nawaz and Saleem Sundri responded to the aggression of Muhammad Aslam (PW.3) etc. mainly in order to save their lives as well as the property. Such right, in law is acknowledged as right of private defence and it is postulated in section 96 PPC that "nothing is an offence which is done in the exercise of right of self defence." So far as the extent to which this right is available the same is contemplated in section 100 of PPC. The plain reading of section 100 PPC manifests that in an apprehension of death or receipt of a grievous hurt arising out of an assault gives rise to the exercise of right of private defence, during which death or any other harm can be caused to the assailant. This right commences from a reasonable apprehension of threat to the life of a person and comes to an end when such apprehension is extinguished. Such rule is generally called as a golden scale to measure the act of an accused committed to save himself from the apprehension of death and grievous hurt. While facing a murderous assault and that too at the behest of numerous armed persons, the plea of self-defence cannot be measured inflexibly on the touchstone of the above mentioned golden scale. It needs no mention that in order to get benefit of the above mentioned provisions, the accused has to make out a reasonable case so as to prove the existence of apprehension or threat to his life or property . The importance of human life can well be gauged from the fact that a person, under the law, even is precluded from taking his own and for this good reason an attempt to commit suicide is made punishable under section 325 PPC.
21. Besides the facts mentioned above, it further spells out from the statement of Dr. Ashfaque Muhammad Akhtar (PW.4) that almost all the entry wounds on the persons of both the deceased were having graphied margins.
During his cross-examination, Dr. Ashfaque Muhammad Akhtar (PW.4) stated in unequivocal terms that by graphied margins mean blackish marks, which can only be caused from a distance of not more than three feet. It evinces from the statements of the eyewitnesses that none of the assailants was at such a close distance. For reference sake, an extract from the cross-examination of Muhammad Yahya (PW.2) is being reproduced below:- "We were confronted each other . Deceased Munir was present at a distance of six Karams from Zulfiqar towards North. Deceased Sadiq was also on the northern side of Nawaz accused (since P.O.) and was at a distance of about five Karams. "
From above, it can safely be gathered that the statements of the eyewitnesses are in conflict with the medical evidence.
22. There is yet another aspect arising out of the statement of Dr.Asfhaque Muhammad Akhtar (PW.4) which pertains to an unexplained delay in holding autopsy of the dead bodies of two deceased and is giving rise to many doubts. According to the record, the autopsy of the dead body of Munir Ahmed (deceased) was conducted on 14.05.2004 at about 9:00 a.m., whereas the postmortem examination of Muhammad Sadiq (deceased) was conducted on 14.05.2004 at 12:05 Noon. If correctly calculated, there is a delay of more than 24 hours in postmortem examination of both the deceased.
The legitimate inference which this Court can draw from such delay is to the effect that this time period was consumed to concoct and fabricate the story and to plant the witnesses in its supp ort. 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."
23. We have also noticed that both the parties are found guilty of suppressing of some material facts. The complainant and the PWs have offered not an iota of explanation as to how Saleem Sundri met his death.
Likewise, though the convicts have come forward with a specific plea of self defence, however, omitted to explain the injuries on the persons of both the deceased. In this view of the matter, it is observed that the burden to prove its case is heavier on the prosecution than the onus to prove the defence version. The defence is only required to create a reasonable doubt, whereas the prosecution is obliged to prove its case beyond scintilla of doubt. In the instant case, the prosecution has failed to discharge its burden, whereas the appellants have successfully brought on record certain circumstances which give rise to a reasonable doubt, the benefit of which cannot be withheld from them.
24. The end result of the above discussion reasonably demonstrates that on the eventful day, the accused party was in possession of the land in question. It is further unearthed from above that the arrival of the complainant faction while armed with weapons ignited the situation which led to the instant unfortunate occurrence. The ocular account furnished by the eyewitnesses is also found suffering from multiple infirmities, rendering it not worthy of any credence so as to award or to uphold the conviction. Likewise, the facts and circumstances discussed above are giving birth to reasonable doubt about the veracity of the theory of crime advanced by the prosecution. In these circumstances, this Court is not left with any other option but to acquit the appellants from the charge. So far as Jamil (appellant) is concerned, though he has not filed an appeal against his conviction and has opted to become fugitive from the process of law but his such unlawful act does not warrant him to be deprived of being dealt with in accordance with law. Since the guilty verdict of Jamil (convict) is pending decision before us through a reference under section 374 Cr.P.C., hence we have also gone through the foregoing provision which falls within the Chapter XXVII of the Criminal Procedure Code which is titled as "OF THE SUBMISSION OF SENTENCES FOR CONFIRMATION". We have gone through the provisions of section 374 & 376 Cr.P.C. according to which while deciding a reference under section 374 Cr.P.C. this Court is having plenty of powers to confirm the sentence or to pass any other appropriate sentence or to annul the conviction or even to order a new trial on the same or on an amended charge and lastly even to acquit an accused. It is further evident from the above two sections that in order to decide a reference under section 374 Cr.P.C. the personal presence of the convict is not made mandatory by the legislatures. A reference under section 374 Cr.P.C., even in the absence of the convict is to be decided, keeping in view the merits of the case. Hence, we are of the considered view that the fate of Jamil Ahmed (convict) can also be decided through a decision of the murder reference. In this regard, we are further enlightened from the precedents arising out of cases reported as Hayat Bakhsh and others v. The State (PLD 1981 SC 265), Mushtaq and 3 others v. The State (1989 P Cr. L J 2336), Master Muhammad Younas and others v. The State (2006 MLD 378) and Mst. Amiran and others v . The State and others (2017 P Cr. L J 1591) .
25. In the light of the above discussion, we set aside the conviction and sentence of three convicts namely Jamil Ahmad, Muhammad Din and Muhammad Mushtaq and acquit them of the charge. Muhammad Din and Muhammad Mushtaq (convicts) shall be released forthwith if not required to be detained in any other criminal case.
Accordingly Criminal Appeal No.344 of 2011 is accepted. Murder Reference No.171 of 2011 is answered in the NEGA TIVE and death sentence awarded to Jamil Ahmad, Muhammad Din and Muhammad Mushtaq (convicts) is NOT CONFIRMED .