FAROOQ HAIDER, J. Through this single judgment, Criminal Appeal No.584 of 2016 filed by Muhammad Mushtaq appellant against judgment dated 10.03.2016 passed by learned Addl. Sessions Judge, Lahore, whereby he has been convicted and sentenced under section 302(b) PPC to Death as Ta'zir on account of committing qatl-e-amd of Muhammad Riaz with payment of compensation Rs.2,00,000/- to the legal heirs of deceased under Section 544-A Cr.P.C which shall be recoverable as arrears of land revenue and in default thereof to further undergo six months S.I, in case arising out FIR No.784 dated 15.12.2009 under Sections 302/34 PPC, registered at Police Station Shera Kot, District Lahore and Murder Reference No.155/ 2016 sent by learned trial Court under Section 374 Cr.P.C. for confirmation of death sentence awarded to Muhammad Mushtaq (appellant) through above mentioned judgment, are being decided together because both these matters have arisen out of one and same judgment.
2. Briefly , the facts of the case according to Fard Bayan Exh.PF and FIR Exh.PD reported by Abdul Jabbar complainant are as under:- "on 14.12.2009 I alongwith Muhammad Riaz (deceased) came to my brother namely Niaz Ahmad and behnoi ?
Muhammad Akram who were residing At Bakar Mandi, Lahore. We stayed at night there. On next morning, we were proceeding back to Pakpattan Sharif, Muhammad Akram and Niaz came alongwith us up-to Niazi Bus Stand.
I and Riaz boarded on bus. Meanwhile Iqbal and Mushtaq came there inside the Bus. When they saw my brother Riaz, Mushtaq pointed a pistol at his temporal region and Iqbal raised Lalkara that he would not be spared and hold my brother from his collar and dragged him down from bus. Mushtaq started firing at Muhammad Riaz deceased, which landed at Riaz, who succumbed to injuries at the spot. Iqbal took the benefit of stampede and fled away from the place of occurrence. Mushtaq was arrested from the place of occurrence by police. The motive behind the occurrence is that wife of Mushtaq Mst. Sajida Parveen filed a suit for dissolution of marriage and got divorce from Mushtaq. Accused had suspicion that Riaz helped his wife. In order to take revenge he alongwith his brother Muhammad Iqbal has committed murder of my brother Muhammad Riaz (deceased). Therefore, case be registered against the accused and criminal action be taken against the accused."
3. After registration of the case, investigation started and on completion of the same report under section 173 Cr.P.C. was submitted in the Court.
4. Learned trial court after observing legal formalities framed the charge against the appellant and his co-accused Muhammad Iqbal (since acquitted) under section 302/34 PPC to which they pleaded not guilty and prosecution evidence was summoned.
5. Medical evidence has been furnished by Dr. Ahmad Raza Khan PW-2, who conducted postmortem examination on the dead body of Riaz Ahmad deceased.
6. Prosecution produced as many as 10 witnesses and after tendering report of Serologist Exh.PR, report of PFSLA Exh.PS and report of chemical examiner Exh.PT , closed its evidence and Faisal Mehmood Constable was also examined as court witness with regard to service of Naveed Ahmad SI (since died), who recorded Fard Bayan of complainant.
7. On the other hand, statement of Muhammad Mushtaq appellant along with his co-accused (mentioned above) was recorded under section 342 Cr.P.C, who refuted the case of prosecution. The appellant neither opted to appear under section 340(2) Cr.P.C nor produced any defence evidence and in reply to question "why this case against you and why the PWs deposed against you?" Muhammad Mushtaq appellant stated as under: - "The deceased Muhammad Riaz was my first cousin (Khala Zad) whereas I was married with Sajida Parveen (Paternal Cousin). Two sons were born during my marriage. Muhammad Riaz deceased abducted my wife from my house and I had two minor children at that time who are still residing in my house with my parents. I got registered FIR No.930 on 18.11.2009 u/s 496-A 389 PPC in P/S Saddar , Pakpattan against Muhammad Riaz deceased.
Muhammad Riaz deceased was killed in Niazi bus stand, Lahore and the alleged witnesses did not witness the occurrence. The police took the dead body of the deceased to the P/S and a mobile alongwith SIM was also taken into possession for the personal search of the deceased. The legal heirs of the deceased were summoned by the police through the contacts available in the SIM of the deceased. The occurrence took place early in the morning and the dead body was shifted to P/S. The Rozenamcha was stopped and on the following day of the occurrence the FIR was registered. That was the reason the post mortem examination of the deceased was conducted on the following day at noon time. Due to previo us enmity the police arrested me from my village and showed the fake arrest from the place of occurrence; I tender the certified copy of FIR No.930 which is Exh.D.A."
8. After conclusion of the trial, learned trial court acquitted accused namely Muhammad Iqbal (mentioned above) and convicted and sentenced the appellant as mentioned above through the impugned judgment.
9. Learned counsel for the appellant has contended that prosecution has failed to prove the case against the appellant; that cited eyewitnesses who have appeared during trial cannot be relied upon in peculiar facts of the case, being related to the deceased; that motive has not been proved and recovery of 12-bore gun is inconsequential as no empty has been secured by the investigating agency , whereas learned District Public Prosecutor has submitted that appellant is nominated in the FIR with the specific role; medical evidence has confirmed ocular account; prosecution has proved its case up to hilt against the appellant and finally prayed for dismissal of the appeal in hand and confirmation of death sentence awarded to the appellant by the learned trial Court.
10. After hearing learned counsel for the parties and going through the record it has been observed by us that both eyewitnesses produced by the prosecution are not resident of the place of occurrence or any nearby vicinity rather they are resident of District Pakpattan which is at a distance of about 200 Kilomete rs from the place of occurrence; they could not establish their presence at the place of occurrence by offering any plausible explanation or reason for the same, so much so, ticket of the bus in which they were statedly sitting could not be produced by the complainant; they are also inimical to the accused and related to the deceased as well. Since eyewitnesses produced by the prosecution could not establish their presence at the place of occurrence, hence, this important aspect of the case of the prosecution has not been proved and it is fatal for the case of the prosecution. Guidance has been respectfully sought from the cases reported as "Irshad Ahmad v. The State" (2011 SCMR 1190), "Muhammad Rafique v. The State" (2014 SCMR 1698 ), "Mst. Sughra Begum and another v. Qaiser Pervez and others" (2015 SCMR 1142), "Arshad Khan v. The State" (2017 SCMR 564),. Furthermore, occurrence took place in this case on 15.12.2009 at 09:15 a.m. whereas postmortem examination over dead body of the deceased was conducted on 16.12.2009 at 11:15 a.m. i.e. after about lapse of 26 hours which factor is sufficient to establish that no eyewitness including complainant was present at the place of occurrence rather it is an un-witnessed occurrence and this time has been consumed by the prosecution in engaging and procuring the witnesses and tailoring story for the case of prosecution. Reliance is placed on the dictum laid down in the case of "Shahbaz v.
The State" (2016 SCMR 1763 ), "Imtiaz alias Taj vs. The state and others" (2018 SCMR 344) and "Haroon Shafique v. The State and others" (2018 SCMR 2118). The distance between assailant and victim has been shown as 06 feet at the time of receipt of firearm shot by the deceased and in this situation if length of arm is deducted then there should be blackening on the injuries, but no such phenomenon has been found at the time of postmortem examination. So medical has also not supported ocular version. It is also important to mention here that even no time of occurrence has expressly been mentioned on the application Exh.PF which was moved for registration of the case. After thorough investigation Muhammad Ramzan Inspector/ PW-10 concluded that deceased was all alone at the time of occurrence of the case and he was not accompanied by any cited witness or complainant, his investigation was neither challenged in police hierarchy nor any complaint was filed in this regard. So much so when he categorically stated during his statement before Trial Court about non presence of cited eye witness at the time and place of occurrence then he was neither re examined nor got declared hostile by the prosecution. No one was produced by the prosecution to prove that he apprehended the appellant at the time and place of occurrence.
As far as recovery is concerned, suffice it to say that its safe deposit to the office of Forensic Science Laboratory, could not be established because Muhammad Ajmal Javed 225/HC Moharrar/PW-4 categorically stated that on 24.12.2012 he handed over parcel of pistol and empties to Abdul Khaliq 1912/C for depositing the same in Forensic Science Laboratory, Lahore, similarly, Abdul Khaliq 1912-C/PW-6 states that on 24.12.2009, he after receipt of parcel of pistol 30-bore and empty deposited the same in Forensic Science Laboratory, Lahore but report of Forensic Science Laboratory, Lahore/Exh.PM depicts contrary to the same because as per said report, Abdul Khaliq 1912/C never deposited said parcel in said office rather one Muhammad Nawaz 7785/C deposited the same. Hence, report of Forensic Science Agency, Lahore/Exh.PM is of no avail and, thus, providing no help to the case of prosecution. Furthermore, pistol and empties remained at police station for a considerable period and dispatched with unexplained delay which raises eyebrows about its evidentiary value.
As far as motive is concerned, though prosecution could not prove the motive yet it is a double-edged weapon and cuts both the ways i.e. it could also be safely considered as a reason for false implication of the accused. It is trite of law that when substantial evidence has been disbelieved then such like piece of evidence i.e. motive loses its evidentiary value. However, in peculiar facts and circumstances of the case, possibility cannot be ruled out that it was reason for false implication of the appellant. Reliance is placed upon the case of "Tariq versus The State"
11. Nutshell is that prosecution has failed to prove its case against the appellant beyond any shadow of doubt. Hence, no need to discuss defence version. Resultantly, instant appeal is allowed, impugned conviction and sentence passed through impugned judgment are hereby set aside, Muhammad Mushtaq appellant is acquitted of the charge. He shall be released if not required in any other case. Murder Reference is answered in negative and death sentence of the appellant is not confirmed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.