FAROOQ HAIDER, J.: Through this single judgment Crl. Appeal No.705/2012 , filed by Shamshad Ali (appellant) against judgment dated 31.3.2012 passed by learned Additional Sessions Judge, Narowal, whereby Shamshed Ali (appellant) has been convicted and sentenced under Section 302 (b) PPC to death alongwith payment of fine Rs.2,00,000/- to the legal heirs of deceased Hafiz Shahid under Section 544-A Cr.P.C. and in default thereof to further undergo one year S.I. as well as under Section 394 PPC to undergo ten years Rigorous Imprisonment alongwith payment of fine Rs.50,000/- and in default thereof to further undergo six months S.I. with benefit of Section 382-B Cr.P.C. Both the sentences were ordered to be run concurrently , and Murder Reference No.194/2015 sent by learned trial Court under Section 374 Cr.P.C. for confirmation of death sentence awarded to Shamshad Ali appellant through above mentioned judgment, are being decided together because both these matters have arisen out of one and same judgment.
2. Brief facts, as per written complaint (Ex.PJ) submitted by Shabbir Ahmad complainant/PW -19, are that he was posted as Laboratory Assistant in Govern ment Boys High School, Sankathra and resident of Mouza Shahabdikay Tehsil and District Narowal while his brother Hafiz Shahid Mehmood was Incharge of Utility Store No.1 Narowal city. On 29.6.2008 afternoon he alongwith his paternal cousin Muhammad Munawar on Honda 70-CC motorcycle came at Narowal city in order to purchase articles of daily use and before returning to their village, they went to the Store of his brother Shahid Mehmood where audit of the store was being done. At 9.00 p.m. Shahid Mehmood was spared, therefore, he (complainant) alongwith his above named cousin on one motorcycle whereon Shahid Mehmood on his motorcycle No.SKC-6328 moved towards their village and when at 9:30 p.m they reached at metallic road of leading to Domala Ahlu-Lal near the area of Village Kesowali, motorcycle of his brother (Shahid Mehmood) was 15/20 yards, ahead of them, suddenly four unknown persons armed with pistols, in prosecution of their common intention intercepted the motorcycle of Shahid Mehmood upon which Shahid Mehmood slow down his motorcycle and out of accused persons, one accused person with half face muffled made a straight pistol fire at Shahid Mehmood hitting at his right portion of abdomen, as a result of which, Shahid Mehmood fell down from the motorcycle in injured condition.
The other accused persons asked his companion to run away as the needful had been done, therefore, all the accused persons while making firing made their good escape towards fields. On the hue and cry of the complainant, the accused persons also made firing towards them but they luckily saved. All four accused persons were young, healthy and of average height, out of which, two were half muffled while two were with naked faces, who could be identified if brought before them. The complainant and his above named cousin Muhammad Munawar witnessed the occurrence in the light of motorcycles. On happening this occurrence, the complainant made a phone call to his home from his mobile phone whereupon after few minutes, his brother Abdul Rehman Advocate alongwith others arrived at the place of occurrence on car, etc. They brought Shahid Mehmood in a severe injured condition at DHQ Hospital Narowal where he was given first aid and then referred to Mayo Hospital Lahore, where he was operated upon. Thereafter the complainant came at Police Station Sadder Narowal and reported the matter to the Station House Officer through his written complainant Ex.PJ. On the basis of said complaint, formal F.I.R No.234/2008 dated 1.7.2008 under Sections 324/34 PPC (Ex.PJ/1) was registered. Later on injured Shahid Mehmood succumbed to the injury in Mayo Hospital Lahore, as such, Sections 302, 394 and 511 PPC were added in the F.I.R.
3. On the conclusion of the investigation, appellant Shamshad Ali alongwith two other co-accused were challaned to the Court. He was formally charged under Sections 394, 302, 34 PPC, to which he pleaded not guilty and claimed trial.
The prosecution at trial examined it's twenty witnesses. It has also tendered in evidence the report of the Chemical Examiner Exh.PZ and that of Forensic Science Laboratory Exh.P AA and Serologist Exh.PBB, and closed its evidence.
4. Statement of the accused was recorded under Section 342 Cr.P.C. and in reply to question 16 that why this case against you and why PWs deposed against you? He replied as under:- "I am innocent and have no direct or indirect connection with the commission of this offence. I have been implicated in this case falsely with mala fide intention for ulterior motive and designs. In fact on 14.8.2008 one and half month after this incident a scuffle took place betw een me, my co-accused on one side and PW-8 Ahsan Karim and PW-10 Muhammad Yousaf on the other side at village Balay Kay in a kabaddi match where harsh words and threats of dire consequences were exchanged between us and the above said PWs. Some people in the kabaddi match intervened and settled the dispute. But the said PWs with connivance of the complainant nursed the grudge against us due to which they roped us in this case to satisfy their nefarious designs. The PWs are related to the deceased so are interested and due to this reason they have deposed against me. I am innocent"
He, however , did not opt to depose on oath under Section 340 (2) Cr.P.C. in disproof of the allegations made against him, however , produced Liaquat Ali as DW -1 and Muhammad Ashraf as DW -2 in his defence.
5. PW-6 Dr. Saadat Ali, Medical Officer, DHQ, Hospital, Narowal medically examined Shahid Mehmood in injured condition and found following injuries on his body: i) A circular wound 1 x 1 cm on right lower abdomen just above inguinal canal. ii) A circular wound 1 /2 x 1 /2 cm on back of right side of lumber region.
Said PW -6 opined that the duration between the injury and medical examination was within six hours.
After death of Shahid Mehmood, PW-5 Dr. Amjad Irshad, Medical Officer, DHQ, Hospital, Narowal has conducted the autopsy on his dead body and found the following injuries on it: - i) A surgical wound on front of abdomen from xiphesternum to pubic area 30 cm in length 4 stitches were in placed. ii) The skin on right side of the body including chest and abdomen and upper part of thigh up the muscle was removed surgically . iii) A circular wound on the back of right side lumber region. Injury No.1 present in MLR No.566/08 is within the debrided area just above the right inguinal region.
He has stated injury No.1 to have been caused with firearm weapon and the same to be ante mortem in nature which leads to extensive damage of abdominal visceras, sufficient to cause death by septicemia, toximea and1 1 shock which lead in ordinary course of life. The probable time between said injuries and the death as described by him was 48 hours and between the death and the postmortem examination within six to twelve hours.
6. The learned trial court after conclusion of the trial has convicted and senten ced appellant Shamshad Ali as mentioned above.
7. Learned counsel for the appellant submits that impugned judgment is against the law and liable to be set aside.
Conversely learned Additional Prosecutor General assisted by the learned counsel for the complainant has supported the impugned judgment.
8. We have observed that following are the vital aspects of the case:- i) Registration of case and supplementary statement. ii) Ocular Account and Identification of the accused. iii) Extra Judicial Confession. iv) Judicial Confession. v) Recovery. vi) Medical Evidence. vii) Motive.
REGISTRATION OF CASE AND SUPPLEMENTARY STATEMENT.
This case was got registered by Muhammad Shabbir Ahmad (PW-19) who is brother of the deceased, by moving application (Exh.PJ) in the police statio n; no accused was nominated in the same; thereafter according to Muhammad Afzal S.I/Investigating Officer (PW-18) on 15.08.2008 Muhammad Shabbir Ahmad (PW-19) complainant appeared before him along with Muhammad Yousaf (PW-14) and Ahsan Kareem (PW-15) at Police Post, Domala and produced written application (Exh.PO) before him while nominating Shamshad Ali (present appellant), Shahid Mehmood (died during the trial of the case) and Mudassar (who has been separately tried as juvenile) as accused persons in the case. In this way, through the supplementary statement, three accused were nominated in this case. Perusal of application (Exh.PO) reveals that it was simply mentioned therein that on 14.08.2008 Muhammad Yousaf and Ahsan Kareem have told him that Hafiz Shahid Mehmood was murdered by Shamshad Ali, Shahid and Mudassar during dacoity. Perusal of said supplementary application clearly shows that it was not mentioned therein that how it has come into their notice and knowledge that aforementioned three accused-persons have committed murder of Hafiz Shahid during dacoity. Any source was not mentioned in said supplementary application in this regard although said application was moved about 1 /2 month after registration of the case. Hence this supplementary application is of no evidentiary value in the peculiar circumstances of the case particularly when testimony of both said Muhammad Yousaf and Ahsan Kareem PWs have not been relied by learned trial Court in the judgment.
Another important aspect which needs consideration here is that according to Exh. PJ i.e. application on the basis of which FIR was got registered, it was a targeted murder but through this supplementary application Exh.PO entire mode and mechanism of the occurrence has been changed, it has been turned into murder during dacoity , and number of accused has been reduced from four to three.
Nutshell is that very registration of the case and nomination of the accused is of no help to the prosecution and this vital aspect of the case which lays basis of a criminal case, has lost its efficacy, and same is fatal for the case of prosecution.
OCULAR ACCOUNT AND IDENTIFICATION OF THE ACCUSED.
Ocular account in this case was based upon Muhammad Shabbir Ahmad (PW-19) and Muhammad Munawar (who was not produced by the prosecution). It is important to note here that though Muhammad Shabbir Ahmad complainant claimed himself eye witness of the case but from a considerable distance comprising upon 44 feet and that too in the darkness of night i.e. at 9:30 p.m and only in the lights of motorcycle it is not possible to see or identify the assailants, reference in this regard is placed upon case reported as "Abid alias Rana vs. The State ."
(2016 SCMR 1515 ). It is quite understandable that head light of motorcycle does not shower rays of light at the face of a standing person rather it only throws light upon to its own height from the ground i.e. two to three feet and so such source of light cannot be termed as sufficient for seeing the faces of the accused-persons. Furthermore1 when in Exh.PJ (i.e. application moved by Muhammad Shabbir Ahmad complainan t for registration of the case) it is categorically mentioned that two accused-persons were having their faces half muffled and the accused who has allegedly fired sole firearm shot at the deceased was also having his face half muffled then it is absolutely impossible to see faces of those accused-persons in the peculiar circumstances of the case mentioned above.
In application Exh.PJ it was mentioned that all the four unknown accused were healthy, young and of average height but specific features of said accused-persons were not mentioned therein i.e. complexion, shape of the face including face cuts, etc., were not mentioned therein, meaning thereby that no specific feature were available with prosecution which could be made basis for subsequent identification of the accused-persons.
Nutshell is that neither there was any chance for identification of the accused at the place of occurrence nor subsequently . In this case, no identification parade was held. So far as claim of the prosecution regarding identification of the accused-persons in Court is concerned, it is of no avail at all in peculiar circumstances of the case as mentioned above, hence, identification of the accused in this case could not be proved and this aspect ipso facto smashed the case of the prosecution; Muhammad Shabbir Ahmad (PW-19) though claimed himself to be the eye witness but non mentioning of his name in the medico-legal report (Exh.PH) of Shahid Mehmod in the column of " Name of accompanying person and relationship " casts doubt upon his claim of being eye witness.
Mobile phone and motorcycle of the deceased remained there at the place of occurrence, motorcycle of the complainant and household articles statedly purchased by him have never been produced during investigation and furthermore accompanying of Abdul Rehman another brother of Shahid Mehmood with him at the time of medico- legal examination and not of Muhammad Shabbir Ahmad complainant negates presence of Muhammad Shabbir at the time of occurrence. The evidence of Muhammad Shabbir Ahmad (PW-19) even could not be corroborated by Muhammad Munawar who is paternal brother of deceased and complainant but not produced and inference would go against the prosecution under Article 129(g) of Qanun-e-Shahadat Order , 1984. It is also important to mention here that complainant did not receive any injury during the occurrence although four assailants armed with weapon, were alleged to have made firing and furthermore no empty could be secured from the place of occurrence, which fact also goes against the claim of Muhammad Shabbir Ahmad (PW-19) qua his presence at the spot. It shows that either said spot is not place of occurrence or complainant was not present there, and even otherwise complainant in the circumstances appears to be a chance witness. Hence, ocular account is of no help to the case of prosecution.
EXTRA JUDICIAL CONFESSION.
Extra judicial confession in this case was introduced by the prosecution through Naseer ud Din (PW-12), Asghar Ali (PW-13), Muhammad Yousaf (PW-14) and Ahsan Kareem (PW-15). Extra judicial confession is week type of evidence and is usually introduced by the prosecution to protect its case, but in the peculiar circumstances of this case when accused-persons made extra judicial confession they were not apprehended and even no attempt was made in this regard, witnesses of so called extra judicial confession were not of status or authority , and evidence of witnesses of extra judicial confession in the case is of poor quality of deposition. This piece of evidence has even been introduced at much belated stage and one set of witnesses of extra judicia l confession PW 14 and PW-15 have already not been relied by the learned trial Court in its judgment. Even otherwise, extra judicial confession introduced by the prosecution seems to be improbable and thus of no evidentiary value.
JUDICIAL CONFESSION.
In this case statement of Shamshad Ali accused/appellant has been got recorded under Section 164 Cr.P.C. before Sohail Anjum, Judicial Magistrate PW-20 on 20.08.2008, which was recorded on oath and thus, of no evidentiary value, reliance is placed upon case of "Azeem Khan and another vs. Mujahid Khan" (2016 SCMR 274). Even otherwise it was exculpatory in nature and retracted also. Furthermore weight is to be given to the statement under Section 342 Cr.P.C. as compared to statement under Section 164 Cr.P.C. and in this regard reliance is placed upon case of "Nasir Mehmood and another Vs. The State, " (2015 SCMR 423). Hence this piece of evidence is of no help to the prosecution.
RECOVER Y.
So far as recovery of pistol from Shams had Ali, appellant is concerned, it is of no help to the prosecution case because no empty was secured from the place of occurrence and report of Forensic Science Laboratory Exh.P AA is only regarding working order of the pistol, which is of no help to the case of the prosecution.
MEDICAL.
It is trite of law that medical evidence can only tell about seat of injury, its nature and weapon use for causing the same but cannot identify its author, so in the peculiar circumstance of the case, medical evidence is of no help to the case of prosecution.
MOTIVE.
Prosecution firstly claimed it as a targeted killing and thereafter murder during dacoity and thus, in this scenario this aspect i.e. motive loses its significance. It is particular to mention here that even no motive was mentioned in the FIR. Even while considering subsequ ent version of the prosecution that it was a murder during dacoity , it is important to mention here that no article or thing has allegedly been even looted or taken away . It is also particular to mention here that it has also come on record that one brother of deceased was already murdered.
9. It is trite of law that prosecution has to stand on its own legs for proving the charge beyond any shadow of doubt but in the instant case prosecution has failed to prove its case beyond shadow of doubt, against the appellant.
10. In view of above, instant criminal appeal No. 705 of 2012 filed by Shamshad Ali, (appellant) is hereby accepted and conviction and sentenced awarded to the appellant vide judgment dated: 31.03.2012 by learned Additional Sessions Judge, Narowal is hereby set-aside. Murder Reference No. 194 of 2012 answered in negative. The appellant shall be immediately released if not involved in any other case.