MUHAMMAD QASIM KHAN, J: - Muhammad Javed accused/appellant faced trial before the learned Additional Sessions Judge, Shahkot District Nankana Sahib in case FIR No.54/2013 under section 302 PPC registered with police station City Shahkot, District Nankana Sahib and vide judgment dated 29.04.2014, he was convicted under section 302(b) PPC and sentenced to imprisonment for life with further order to pay Rs.50,000/- as compensation under section 544-A Cr.P.C., in case of failure to pay compensation, to undergo simple imprisonment for six months. Benefit of section 382-B Cr.P.C. was extended. This conviction and sentence is under attack through the instant criminal appeal, whereas, Crl.Rev .No.697/2014 has been filed by the complainant to seek enhancement of sentence.
2. Briefly the facts of the case are that Mst. Asia Parveen (PW-5) complainant widow of Muhammad Arshad (deceased) through complaint Ex.PB got lodged the FIR (Ex.PB/1) on 01.02.2013 at 3.55 a.m (night) to the effect that on 31.01.2013 after Maghreb prayer, she along with Muhammad Arshad (husband), Muhammad Asghar and Muhammad Siddique were present in the house, when Muhammad Javed accused/appellant came and called her husband outside the house. The complainant, Muhammad Asghar and Muhammad Siddique saw Muhammad Arshad going to the house of Javed along with him. At about 1/2.00 a.m (mid night) on hearing the report of fire, the complainant, Muhammad Asghar and Muhammad Siddique went to the house of Javed, who already had left by keeping door of his house open. They entered and saw that in the room of upper storey (CHOUBARA) of Javed, on a cot Muhammad Arshad was lying dead smeared with blood, who had fire injury on back of left ear. It was further averred that Muhammad Javed had murdered Muhammad Arshad for some grudge, on the instigation of Mst. Nusrat Parveen wife of Ghulam Bismillah and Mst. Ghulam Fatima wife of the accused.
3. After chalking out the formal FIR, Mukhtar Ahmad Sub-Inspector (PW-10) inspected the place of occurrence, prepared rough site plan Ex.PH, inquest report Ex.PJ, injury statement Ex.PK, application for post mortem examination Ex.PL and sent the dead body for autopsy. Thereafter, he secured crime empties of pistol 30-bore through memo Ex.PG, blood through cotton was secured through memo Ex.PD, he recorded statements of witnesses, secured clothes of the deceased and a sealed phial vide memo Ex.PE. On 06.02.2013 accused Javed was arrested, who on 17.02.2013 disclosed and got recovered pistol P-10 form his house which was secured into possession vide memo Ex.PG, rough sketch of place of recovery is Ex.PG/1. The I.O then recorded statements of the witnesses and submitted report under section 173 Cr.P.C. against the accused.
4. Javed accused/appellant was charge sheeted, to which he pleaded innocence and claimed to be tried. During trial, the prosecution examined Mukhtar Ahmad Sub-Inspector (PW-10) who had investigated the case and the functions performed by him have been detailed above.
Dr. Usman Shoukat (PW-8) had conduc ted autopsy over the dead body of Muhammad Arshad on 01.02.2013, whereas, Mst. Asia Bibi (complainant) who appeared in the witness box as PW-5 and Muhammad Asghar (PW-6) both deposed about the ocular account and Muhammad Nazir PW-9 is the witness of recovery of crime weapon from accused Javed. The rest of the witne sses are all formal in nature and they reiterated what they had performed during the course of investigation. On close of oral evidence, the learned DDPP submitted report of FSL in respect of cotton as Ex.PM and crime empty Ex.P N and closed the case for the prosecutio n. The accused when examined under section 342 Cr.P.C. while answering the question "Why this case against you and why the PWs have deposed against you" , stated that:- "I have been falsely involved in this case with malafide and ulterior motive. The deceased Muhammad Arshad was not of good character who was done to death by some unknown assailants during the odd hours of night. His dead body was recovered from the agricultural fields. Later on a fake story was concocted and the case was registered against me. Neither the deceased was taken away by me as stated by the PWs nor his dead body was recovered from my house. In order to black-mail me and my family , I was arrayed in this case falsely after making me a scape-goat."
The accused however , neither produced any defence evidence nor opted to appear as his own witness under section 340(2) Cr.P.C. and on conclusio n of trial he was convicted and sentence, as detailed in the opening paragraph of this judgment.
5. It is argued by learned counsel that the prosecution case is full of improbabilities. He added that according to the prosecution case itself no one witnessed the occurrence and furthermore it appears that accused was recognized only by his voice but nothing has come on the record to suggest that accused was already known to the complainant lady or to the other witnesses. The learned counsel argued that there is no indication from the entire prosecution evidence that after hearing the voice of Javed accused/appellant the witnesses also came out along with Muhammad Arshad deceased, thus in the absence of any such evidence, the statements of the witnesses that they saw deceased going along with Javed accused, is totally a false stance. The learned counsel contended that both the witnesses being closely related interse and also to the deceased, were highly interested witnesses; although in the FIR it was alleged that murder was committed by Javed accused/appellant on the abetment of Mst. Nusrat and Ghulam Fatima, but no motive or reason whatsoever was mentioned in the FIR as to why the accused would commit such an offence and why the two women could entice or abet the commission of the crime. The learned counsel argued that recovery of crime weapon in this case is inconsequential. Lastly submitted that prosecution witnesses made dishonest improvements in their statements and they were duly confronted on important aspects, but the learned trial court totally misread the entire evidence and recorded conviction/sentence, which is not sustainable in the eyes of law .
6. On the other hand, learned counsel for the complainant assisted by learned Deputy Prosecutor General opposed the above arguments and contended that sufficient evidence was produced by the prosecution which consisted of most natural witnesses being inmates of the house, although they were subjected to lengthy cross-examination but nothing damaging to the prosecution or favourable to the defence could come out from their testimonies. Further argued that an occurrence could be motiveless, therefore, if no motive has been set by the prosecution, the defence cannot get any benefit of it, because otherwise, the prosecution succeeded in establishing its case against Javed accused/appellant beyond any shadow of doubt and the learned trial court committed error by imposing lesser sentence, whereas, he was entitled to capital punishment, therefore, the learned counsel argued that criminal revision filed for the said purpose i.e. enhancement of sentence, merits acceptance.
7. The arguments of learned counsel for the respective parties have been considered at length and the record of the case has been gone into.
8. It is admitted fact that prosecution witnesses are not only related inter-se but also related to the deceased, therefore, highly interested witnesses, therefore, their evidence is to be evaluated with extra care and caution. This court is also aware of the position that mere relationship of a witness is not sufficient to discard his testimony and the defence is required to elicit something favourable to it during cross-examination, otherwise, conviction can be recorded and sustained even on the statement of a witness who may have relationship.
9. According to the case of the prosecution itself the occurrence took place at about 1/2.00 am (mid night) on 31.01.2013 and the matter was reported to the police on the same morning at 3.55 am. According to Mst. Asia Bibi (PW-5) the police reached at the place of occurrence at about 5.00 a.m. Mukhtar Ahmad Inspector/IO (PW-10) sent the dead body to mortuary through Faqeer Muhammad and Abdul Sattar (PW-1). Though the post mortem report mentions the date of receipt of dead body in the Dead House as 01.02.2013, however , no time of receiving the dead body has been written. Anyhow , after the visit of IO to the place of occurrenc e and sending the dead body to the hospital for post mortem examination might have taken an hour or so. Meaning thereby , the dead body must have reached the hospital roughly at 6 or 7.00 a.m., but from the post mortem report Ex.PF as well as from the statement of Dr. Usman Shoukat (PW-8), the post mortem was conducted at 04.15 p.m. i.e. with a delay of about nine hours and the delay in conduct of post mortem has not been explained by the doctor . Although in District Headquarter Hospitals doctors are available for twenty four hours, even otherwise, morning duty starts from 8.00 am. If it is presumed that doctor was not available at night then why he did not conduct the post mortem in the earlier hours of the morning i.e. 8.00 or 9.00 am, when the morning batch of the doctors must have joined their duties. Delay in post mortem examination, without any explanation to that effect, gives rise to a legitimate inference that as a matter of fact the FIR was not registered at the time as is mentioned in the FIR, rather due to non- recording of FIR, inquest report and other papers were not complete, the dead body was kept in the mortuary and once the above formalities were complete d later-on, the post mortem was thus conducted with delay and this factor is sufficient to create doubt about prompt registration of FIR. In this respect reliance is placed on the case "ABDULLAH and others versus THE STATE and others" (2006 P.Crl.L.J. 1726 ), a learned Division Bench of this Court observed that delayed post mortem examination of a dead body was generally suggestive of a real possibility regarding time having been utilized by complainant party and the police in procuring and planting eye- witnesses and in cooking up story of prosecution. Reference can be made to the cases "MUHAMMAD BILAL versus THE STATE" (2006 YLR 2116) and "SAIF ALI versus THE STATE" (2008 YLR 375).
9. As shall be seen from the narration of facts detailed above, the case of the prosecution in the complaint Ex.PB and in the FIR Ex.PB/1 is that:- {{URDU TEXT}} Subsequently, however, Mst. Asia Bibi (PW-5) and Muhammad Asghar (PW-6) while appearing in the witness box developed their case by adding that "At that time, Javed accused present in the court came at the door of our house, knocked at the door whereupon Arshad deceased inquired about the person who knocked at the door, then Javed accused stated that he was at the door outside the house." i) If the statements of the witnesses before the court are considered it would mean that accused was simply identified by the witnesses by his voice and informing of his name when he called the deceased admittedly from outside the house, but the entire prosecution evidence is silent on the aspect whether Muhammad Javed was earlier in such terms with the witnesses that they would identify him by his voice. ii) As observed above, subsequent change of stance by Mst. Asia Parveen PW-5 and Muhammad Asghar PW-6 was total deviation from the stance taken by the complainant in the FIR, wherein , it had been clearly mentioned that accused/appellant had called the deceased by voice (not by knocking at the door) and furthermore, there is no mention that on asking of the deceased, the accused/appellant himself disclosed his name as Javed. Further, both the witnesses before the court also change their version by stating that afterwards Siddique and Asghar PWs went to their house lateron. On these aspects Mst. Asia PW-5 was also duly confronted by the defence in the following words:- "I got recorded in Exh.PA that upon knocking of the door, Arshad deceased inquired about the person who knocked at the door, at this accused Javed stated that he is at the door outside the house. Confronted with Exh.PA where it is not so recorded."
"I also got recorded in Exh.PA that, thereafter, Siddique and Asghar PWs also went to their house. Confronted with Exh.PA where it is not so recorded."
On same lines Muhammad Asghar (PW-6) was also confronted with his statement in court from his statement before the police. iii) It is an old known canon that "three things cannot be long hidden: the sun, the moon, and the truth. " This saying has proven correct in this case as it appears that while appearing before the court and making statement on oath, truth came out from the mouth of the prosecution witnesses namely Mst. Asia PW-5 and Muhammad Asghar PW-6, when they deposed that they identified the accused when he himself informed about his name. From the statements of witnesses it appears that as initial impression even the victim could not identify the accused by his voice; that is why he inquired about the person who knocked at the door. Further , it could not be said that the person present outside the house had correctly told his own name, and there existed the possibility that he may have wrongly named himself as Javed to conceal his own identity . iv) In relation to the cases of identifying the voice of the accused by the witness who heard the voice of the offender, the court has to mainly depend on the perception or the assertion of the witnesses regarding the voice of the offender. There is real possibility of mistake on expense of the surrounding circumstances when the witness perceived the voice. For example, the medium through which he perceived, the ability to remember the way the offender spoke, ability to compare the voices accurately, how long he heard the offender and the time passed between hearing the offender and the accused voice. The non-expert or witness's opinion may be admissible depending upon 'the degree of familiarity of the witness with the suspect's voice' as the strangers are likely to make mistakes. However, the danger of misidentification cannot be wiped out by the degree of familiarity of the witness with the voice of the accused and in order to use the said element as evidence, not only the prosecution is required to create all possible links, the court is also obligated to take such evidence with extra care. But, as observed above, the prosecution witnesses did not explain that they already knew Muhammad Javed and that they were in a positon to identify him by his voice. In the absence of such clarification, chances could not be ruled out that even someone else might have wrongly named himself as Javed who had called the deceased from outside the house. The above piece of evidence becomes further doubtful when we see that there is no indication in the statement before the court that any of the witness went outside the house along with Muhammad Arshad deceased and thus saw the deceased going along with the accused/appellant. Reliance can be placed on the case "MISRI and 3 others versus THE STATE" (PLJ 1984 Cr.C (Karachi) 327) and "ALI versus THE STATE" (1977 P.Cr.L.J. 136).
11. It is also worth noticing that in the FIR there is no mention that Siddique and Asghar PWs later on went to their house and from the contents of the FIR it appears that at about mid night on hearing the noise of fire shot, the complainant along with Muhammad Asghar and Muhammad Siddique right from the house of the complainant, went towards the house of Javed accused/appellant and that already Javed accused/appellant had escaped by keeping the door open. On the contrary, in their statements before the court both the witnesses changed their stance by stating that witnesses went to their house later on, when Muhammad Arshad had gone with Javed accused/appellant. On hearing the noise of fire shot, PWs Asghar and Siddique came to the house of the complainant and thereafter they were going towards the house of Javed, when witnessed Javed accused while going from his house having pistol in his hand. This part of the statement is also material improvement from the case set out in the FIR, wherein, it had been specifically got recorded that accused had already left his house by keeping the door open; there is no mention that the witnesses had actually seen Javed while escaping and similarly there is no mention in the FIR that accused also had a pistol in his hands. In this respect also the defence duly confronted the complainant in the following manner:- "I also got recorded in the application that after reporting of the fire shots, PWs Asghar and Siddique came to my house. Confronted with Exh.P A where it is not so recorded. "
"I also got recorded in Exh.P A that when we are at some distance from his house , accused Javed fled away from his house while having pistol in his hand. Confronted with Exh.P A where fleeing away of Javed accused along with pistol is not recorded."
On same lines Muhammad Asghar (PW-6) was also confronted with his statement in court from his statement made before the police during investigation. Such dishonest and deliberate improvements and change of stances made the witnesses unreliable and it appears that they had not witnessed the occurrence, and are not trustworthy. It is held in the case of Amir Zaman Vs. Mahboob and others (1985 SCMR 685) that testimony of witnesses containing material improvements are not believable and trustworthy . Likewise in Akhtar Ali's case (2008 SCMR 6) it was held that when a witness made improvement dishonestly to strengthen the prosecution' s case then his credibility becomes doubtful on the well-known principle of criminal jurisprudence that improvement once found deliberate and dishonest, cast serious doubt on the veracity of such witness. In Khalid Javed' s case (2003 SCMR 149) such witness who improved his version during the trial, was found wholly unreliable.
12. Another aspect is that prosecution witnesses during their statements in court have shown consistency on the point that after hearing the noise of fire shot, Muhammad Asghar PW-6 came to the house of the complainant (PW- 5) and then they straightaway proceeded towards the house of Javed accused/appellant. During cross-examination Mst. Asia Bibi (PW -5) deposed that:- "My village is situated on both sides of the above mentioned road. The street which leads to our house from the above said road is situated on the right side of the road. 7/8 houses fall in the street from the main road up till my house in the said street. The said street is the first street of the village Abadi which is situated on the east of the above said road. House of Siddique and Asghar is situated in the third street from my house. House of Siddique mentioned above is also situated in the street after 6/7 houses from the main road. Masjid Bazar is located after three streets from the house of Siddique mentioned above. House of accused Javed is situated towards west from Masjid Bazar. House of accused Javed is 12 house in the street from the metalled road, thereafter the agricultural fields are located."
Considering the location of the house of the complainant, the house of Muhammad Asghar and the house of deceased, as detailed by the complainant in the above reproduced lines, it becomes obvious that first there was the house of the complainant and the house of Muhammad Asghar (PW-6) was away in the third street from her house, whereas, the house of accused was further three streets away from the house of the witness and that too 12 in the street. This mean that house of the witness was in the street falling in the middle of the street of the complainant and the deceased. Thus if Muhammad Asghar PW-6 had heard the noise of fire shot, as a natural consequence he must have rushed towards the site of fire shot, but according to the prosecution case instead of going towards the site of fire shot, he firstly ran towards opposite direction i.e. the house of the complainant, took her along and then came back to the place of occurrence, which is the most unnatural conduct. Furthermore, it has come in the evidence of prosecution witnesses that house of the accused was surrounded by other house, but surprisingly none from the surrounding houses came at the spot after hearing the fire shot coming from their neighborhood, whereas, Muhammad Asghar whose house was situated three stree ts away heard the sound of fire shot. Further , had the witnesses seen Javed accused/appellant escaping from the place of occurrence along with crime weapon in his hand in the odd hours of the night, they must have asked from him as to what had happened to him and where he was going with weapon in his hands, but the prosecution witnesses did not put any question to him at that moment. The witnesses even did not inquire from him regarding the whereabouts of Muhammad Arshad deceased.
13. As shall be seen from the contents of the FIR although it was alleged that Javed accused/appellant had committed the murder under the abetment of Nusrat Parveen and Ghulam Fatima, but no reason/motive was set either in the FIR or in the statements of the witnesses that what prompted the accused appellant to commit the murder and why the above two ladies would abet the commission of such crime, instead the complainantth th furnished an affidavit during the course of investigation that both the above ladies were not involved in the case as abettors and that they were innocent.
14. According to Mukhtar Ahmad Sub-Inspector/I.O (PW-10) one empty P-1 was taken into possession by him vide recovery memo Ex.PC on the day of occurrence i.e. 01.02.2013. i) Accused was taken into custody on 06.02.2013, he remained with police on physical remand and during this period on 12.02.2013, the empty was sent to the FSL for comparison. Although it is alleged that crime weapon i.e. Pistol P-10 secured vide memo Ex.PG was recovered on 17.02.2013 from the house of accused/appellant on his pointation and disclosure, but as in these proceedings relating to recovery of crime weapon from the accused, no witness from the locality has been associated. In this situation sending of the empty after six days of arrest of the accused create doubt that empty was sent after concocting a story and in order to strengthen the prosecution case the same was shown to have been recovered on 17.02.2013. Furthermo re, considering the facts and circumstances of the case, the prosecut ion had sufficient opportunity to join any independent person from the locality in the recovery proceedings, but even no attempt was made in this respect, as such, there is obvious violation of Section 103 Cr .P.C. ii) Another important aspect is that according to the prosecution case on the night of occurrence i.e. 01.02.2013, Javed accused/appellant was seen by the witnesses while escaping from his house with crime weapon in his hand. Subsequently the accused was arrested on 06.02.2013 and on his disclosure/pointation crime weapon P- 10 was recovered from his dwelling house on 17.02.2013. It is repellent to common sense that once the accused had successfully managed his escape from the place of occurrence along with crime weapon, afterwards he returned back to his house (place of occurrence) along with weapon of offence, put it in his dwelling house and subsequently get the same recovered during investigation. These all factors when considered make the recovery/recovery proceedings extremely doubtful.
15. For what has been discussed above, I am of the considered view that this was a blind and motiveless murder and the prosecution could not connect the accused/appellant with the commission of said crime without any shadow of doubt. Consequently , this appeal is allowed, the conviction/sentence of the accused/appellant is set- aside and he is acquitted of the charge. He shall be released forthwith if not required in any other case. The case property , if any, shall be disposed of in accordance with law and the record of the learned trial court be sent back immediately .
17. For the above reasons, the criminal revision fails and is dismissed.