Asjad Javaid Ghural, J.--Through the afore-titled criminal appeal, appellant Naveed C Nidu has challenged the vires of judgment dated 01.11.2012 passed by a learned Addl. Sessions Judge, Sahiwal in a private complaint titled Mst. Ashraf Bibi vs. Naveed alias Nidu and three others', in respect of offences under Sections 302, 109, 148 & 149, PPC arising out of case FIR No, 50 dated 23.01.2011, in respect of offences under Sections 324 109, 148 & 149, PPC registered at Police Station, Farid Town, Sahiwal whereby he was convicted and sentenced as under:-- Under Section 302(b), PPC Death and to pay the compensation of Rs. 200,000/- under Section 544-A of Cr.P.C. to the legal heirs of deceased Shamir, and in default thereof to further undergo rigorous imprisonment for six months.
2. The prosecution case is that one Mst. Nooran Bibi got lodged a case FIR No, 50 dated 23.01.2011, in respect of offences under Sections 324, 109, 148 & 149, PPC registered at Police Station, Farid Town, Sahiwal alleging therein that on 21.01.2011 at 07:30 p.m., she along with her other family members was sleeping in their respective rooms whereas her son-in-law, who was living in her house, had slept in the Dhari near the cattle shed. Naveed alias Needu armed with' pistol, Munawar Hussain alias Kali armed with a Pump Action, Nadeem, Baggu both armed with fire-armed weapon whereas Bodi armed with a Sota came a her Daira and woke-up Shameer. On haring noise, the complainant along with Lai and Noor Ahmad reached at the place of occurrence and in their view Naveed alias Needu fired with his pistol .30-bore, which landed at the head behind right ear of Shameer whereupon he fell down unconscious. The accused persons fled away from the scene of occurrence. The motive behind the occurrence was that one month prior to the occurrence, the accused persons, who were the employees of one Muhammad Afzal, had a quarrel with Shameer on turn of water due to which they had extended threats to Shameer for dire consequences.
3. Muhammad Khalid, S.I (CW-5) had conducted the investigation of this case, on 23.01.2011 at 12.30 p.m. Mst. Nooran Bibi complainant of this case produced application Ex.CW5/A before him which was sent to Police Station for the registration of formal FIR, secured blood stained earth from the spot which was made into a sealed parcel and took into possession vide recovery memo. Ex.PB, collected one empty of pistol .30 bore P.1 and took the same into possession vide recovery memo.
Ex,PC. prepared rough site-plan of the place of occurrence Ex.CW.5/B, recorded the statements of the PWs under Section 161, Cr.P.C. On 24.01.2011 he proceeded to Jinnah Hospital Lahore in order to record the statement of injured, on 28.1.2011 he prepared the injury statement of Shameer Ahmed injured (Ex.CW.4/A/2), the injured died in the hospital, he received the dead body along with the death certificate Ex.CW-5/D, prepared injury statement Ex.CW.4/B/2 and inquest report Ex.CW.4/B/3, added offence under Section 302, PPC and also recorded the statements of PWs under Section 161, Cr.P.C., taken into possession last worn clothes i,e, Kamiz P-7, Pajama P-8, of the deceased vide recovery memo. Ex.CW1/A, recorded the statements of the witnesses under Section 161, Cr.P.C. On 29.01.2011'Zahid Ali, draftsman took rough notes from the place of occurrence, on 31.01.2011 draftsman prepared scaled site-plan Ex.CW2/A and Ex.CW2/B, on 22.02.2011 he arrested Munawar alias Kali and Nadecm accused, on 04.03.2011, Munawar alias Kali accused in police custody after making disclosure led to the recovery of pump action-9 along with a live cartridge P- 10, which was taken into possession vide recovery memo. Ex.CW-5/E, prepared rough site-plan of recovery Ex.CW5/E/1, on the disclosure of Naveed accused recovered revolver .32 bore (P-11) along with one live round P-12, which were taken into possession vide recovery memo. Ex.CW-5/F. On 17.04.2011 Naveed alias Needu accused, in police custody made disclosure and led to the recovery of pistol .30 bore (P-5) along with one live round (P-6), which was taken into possession vide recovery memo. Ex.PE, after investigation accused. Ijaz alias Bodi, Zafar Iqbal alias Baggu and Muhammad Afzal were found not involved in this case while Naveed alias Needu, Munawar alias Kali and Nadeem accused was found involved in this case and recommended for their challan.
4. Dr. Muhammad Yousaf Nadeem (CW-4) had examined the deceased Shameer Ahrnad when he was in injured condition on the same night on 21.01.2011 at 08:35 p.m. and observed, a fire-arm lacerated wound deep going with profusely bleeding and brain matter was coming out from the wound on back and right side of head above from the right ear and margin of the wound was inverted and blackening present on the wound edges. Patient's condition was very serious. The injury was inflicted by fire-arm weapon within an hour.
On 28.1.2011 at 11:30 p.m. the Medical officer conducted postmortem examination on the dead body of deceased Shameer Ahmed and found the injury on his person as aforementioned along with surgical wound. On dissection of the dead body, the skull bone underneath the Injury No, 1 was fractured. The brain matter was extensively damaged underneath Injury No, 1, a big hematoma was present in the brain, the brain meninges were also damaged under the scalp, the clotted blood and hematoma was present. The heart was half filled with blood, the stomach was containing very small 'amount of liquid and gases, the small and large intestines were containing gases. He had opined that the cause of death was due to injury to the skull and brain, which leads to coma and other complications as a result of Injury No,
1. Injury No, 1 was ante mortem in nature and was inflicted by fire-arm weapon whereas Injury No, 2 was surgical incision. The probable duration between injury and death was about eight days and between death and post-mortem about twelve hours.
5. On 11.04.2011, Mst. Ashraf Bibi widow of deceased Shameer Ahmad (PW-1) filed a private complaint (Ex.PA) regarding the aforesaid occurrence with the slight difference with regard to the detail of the occurrence, hatching of conspiracy at the Daira of Muhammad Afzal and biased investigation conducted by the local police.
6. Learned trial Court after recording the cursory statements of the witnesses, had proceeded to summon the accused persons to face the trial consolidating the State case as well as the private complaint case.
7. At the commencement of the trial, the learned trial Court had framed the charge against the appellant and his co-accused Munawar Hussain alias Kali, Munir and Muhammad Iqbal to which they pleaded not guilty and claimed to be tried.
8. The complainant had produced two-witnesses besides the reports of the Punjab Forensic Science Agency Ex.PF and Ex. PG. Eight witnesses (CW-1 to CW-8) had been examined as Court witnesses. The appellant and his co-accused in their statements recorded under Section 342, Cr.P.C., had denied and controverted all the allegations leveled against them, he opted neither to make statement under Section 340(2), Cr.P.C, nor had they produced any evidence in their defence.
9. Learned trial Court, upon conclusion of the trial, had acquitted Munawar Hussain alias Kali, Munir and Muhammad Iqbal whereas the appellant was convicted and sentenced supra, Hence, the present appeal as well as the connected Murder Reference.
10. Learned counsel for the appellant submits that the appellant is quite innocent and had been falsely implicated in the alleged occurrence due to suspicion; that it was a dark-night occurrence and no source of light was available at the venue of occurrence; that in absence of source of light, the identification of the real culprit was not possible; that the matter was reported to the police within an inordinate delay of two days of the occurrence despite the deceased was medically examined on the same day while he was in injured constitution, which by itself speaks volume that four of the co-accused persons have been acquitted of the charge by the learned trial Court while not relying upon the testimony of the claimed eyewitnesses; that the complainant of private complaint Mst, Ashraf Bibi (PW-1) was earlier not cited as a witness in the crime report and the complainant of the crime report Mst. Noonan Bibi has not appeared before the learned trial Court to supplement the averments of her report, who if produced, would have not supported the prosecution version; that the motive part of the occurrence is vaguely formulation and has not been established by the prosecution; that the recovery of pistol shown to be effected at the instance of the appellant is inconsequential and does not lend corroboration to the ocular account. Finally, prayer for the acquittal of the appellant has been made.
11. Conversely, learned Deputy Prosecutor General appearing for the State has half-heartedly opposed the contentions raised by the learned counsel for the appellant while submitting that the occurrence had taken place at the cattle-shed of the complainant and his family members were also residing there; that in the rural set-up, the identification of a person through voice and posture, could be possible; that the complainant has specifically deposed in the private complaint and in her statement before the learned trial Court with regard to source of light; that both the claimed eye-witnesses remained affirm and consistent on all material particulars inter-se having full support of the medical evidence; that the prosecution had no occasion to falsely implicate the appellant in the alleged occurrence; that the presence of the complainant at the venue of occurrence is not doubted being legally wedded wife of the deceased; that the motive part of the occurrence is fully established and the recovery of weapon of offence was found mechanically in operating form. At the end, learned counsel submits that the learned trial Court has awarded the conviction and sentence against the appellant after due appraisal of the evidence on record, which calls for no interference by this Court at this stage.
12. We have heard learned counsel for the appellant, learned Deputy Prosecutor General appearing for the State and have perused the record with their assisance.
13. This unfortunate incident had taken place on 21.01.2011 at 07:30 p.m., which was reported to the police on 23.01.2011 at 12:45 p.m. with an inordinate delay of two days and no plausible explanation could be brought on record for such delay. The record goes to evince that the deceased Shamir Ahmad, while in injured condition, was shifted to the hospital, he was medically examined on the same night at 08:35 p.m. through police docket having been brought by Muhammad Boota 233/C but the case was neither got registered nor any doubted had been shown against any specific person for committing the murderous assault upon the deceased whereas after due deliberation and consultation, the crime report was got registered by Mst. Nooran Bibi with the explanation that the injured was shifted to Jinnah Hospital, Lahore and she remained busy to take care of the deceased. The abortive attempt of the complainant of the crime report to meet with the delay in lodging the crime report stood contradicted from the deposition of Dr. Muhammad Yousaf Nadeem (CW-4), which undoubtedly shows that the time had been consumed by the complainant of the crime report for cooking up a false story and to manage the eye-witnesses for false implication of the appellant after getting legal/expert assistance.
14. The prosecution had produced Mst. Ashraf Bibi, the complainant/widow of the deceased as PW- 1 and Lal Khan as PW-2 to furnish the ocular account with regard to the mode and manner of the occurrence. Mst. Ashraf Bibi had filed the private filed on 11.04.2011 After about four months of the occurrence. She was not cited as an eye-witness of the occurrence in the crime report, got lodged by Mst. Nooran Bibi, the mother of present complainant. Mst. Ashraf Bibi had appeared in the dock in the Court room and deposed what she had averred in the private complaint and deposed that she along with her other family members, was residing at a tube-well in Chak No, 96/6-R. On the fateful night at about 07:30 p.m., she along with her mother Mst. Nooran Bibi and children was present at the Dora near the cattle shed, on hearing hue and cry of her husband, she along with her mother had come out of the room, the electric blub was on, they saw in the light of electric blub that Naveed alias Nidu (appellant) armed with pistol, Munawar Hussain alias Kali, Munir and Muhammad Iqbal while armed with .12-bore guns and one Ijaz alias Bodi armed with Sota (all since acquitted) were present near the cattle-shed and had encircled her husband Shamir Ahmed, he made hue and cry whereupon Lai Khan (PW-2) and Noor Ahmed (given up) also attracted at the spot and in their view the appellant fired with his pistol, which landed at the head behind right ear of her husband, who fell down in injured condition. They tried to apprehend the accused persons but the co-accused of the appellant, stopped them by show of their weapons and started making aerial firing. On attracting the people of the village at the spot, the accused persons fled away from the scene of occurrence along with their respective weapons. She was cross-examined by the defence at considerable length wherein the defence succeeded to shatter her credibility as to her availability at the place of occurrence at the relevant time. In her cross-examination she had stated that: "It was winter season when the occurrence took place. The above said rooms are with doors. It is correct that at the night of occurrence we all family members were sleeping into the rooms and the doors were bolted."
"The distance between the place where I was sleeping at the fateful night and the place where my husband was sleeping is about one canal."
In reply to another question put by the defence counsel she had deposed that: "After 30-minutes of the occurrence the police reached at the spot."
"I did not make any statement before the police regarding the occurrence. Volunteered the police had obtained the thumb impression of my mother on blank paper."
"It is correct that I did not go to Police Station regarding this but my mother and other PWs had approached the Police Station."
"It is correct that no person of the locality was ready to become a witness in this case. It is correct that I have filed this private complaint regarding the occurrence with the consultation of my mother."
"It is correct that theft and dacoities were at full swing in our locality".
The evidence of the complainant by itself speaks volume with regard to different aspects of the case. Firstly, she was neither cited as witness in the crime report got lodged by her mother Mst.
Nooran Bibi nor was her statement under Section 161, Cr.P.C. recorded by the police. Secondly, she along with her family members were sleeping in their rooms at a distance of one kanal from the place of occurrence with their bolted rooms. Thirdly, had filed a private complaint after about three months of the occurrence and no explanation could be brought on record for such delay, Fourthly, the police had reached at the place of occurrence within half an hour and the Shameer Ahmad, in injured condition, was examined by the doctor on the same day. Fifthly thefts and dacoities in that particular area were at full swing. Lai Khan (PW2) while appearing before the witness box has stated the story almost in resemblance with the complainant that he, after hearing hue and cry, attracted at the place of occurrence and saw the same with his own eyes. He had stated in cross- examination that Shameer Ahmed deceased was his Khalazad, whereas Mst. Ashraf Bibi the complainant, was his Mamuzad. He further stated in cross-examination that his residence was at a Dera outside the village Abadi, it was winter season and she was present in his room on the fateful night but the doors of the rooms were opened. His residence was at a distance of three kanals from the place of occurrence. He had fortified the statement of the complainant in the words that It is correct that theft and dacoities oftenly taken in our area during the days of occurrence. "He further stated that he along with other two persons went to the Police Station to inform about the occurrence after two days of the occurrence and then the police arrived at the spot i,e, after two days of the occurrence, which shows that the matter was discussed prior to the lodging of the crime report. The testimony of both the claimed eye-witnesses shows that they were inside the rooms of their residence in the month of January and it could not be possible for them to identify the assailants in a pitched dark night. The question arises that if the deceased, in injured condition, was medically examined on the same night within an hour then what constrained the complainant party not to report the matter to the police for the registration of the case. The testimony of both the prosecution witnesses by itself indicate that the matter was consulted prior to the registration of the case especially when the dacoities and theft were at full swing at that particular area. The distance between the place of occurrence and both the claimed eye-witnesses as mentioned in the scaled site-plan (Ex.CW-2/A) was 20-feet and the identification of the culprits with specific weapons in a pitched dark night of the peak of the winter season was not possible. Both the claimed eye-witnesses were closely related, interested as well as inimical to the appellant and their presence at the scene of occurrence, in the circumstances, is not free from doubt. The most important aspect of the case was the lacking of source of light at the venue of occurrence.
Primarily the crime report was registered at the instance of Mst. Nooran Bibi, the mother of present complainant wherein no source of light was mentioned.. The scaled site-plan (Ex.CW-2/A) which was prepared at the instructions of the eye-witnesses on 30.01.2011 shows the lack of any point regarding the source of light. The source of light was first time mentioned by Mst. Ashraf Bibi (PW-1) in the private complaint (Ex.PA), which is the result of an afterthought story, filed with due deliberation, consultation and fabrication. It was hardly possible for any of the prosecution witness to identify any of the accused persons with the specification of their fire-arm weapons, at the venue of occurrence, who had fired upon the deceased without any source of light. Mst. Nooran Bibi (complainant of the FIR) has not been produced before the learned trial Court in the witness box and given up due to unnecessary. She had been given up by the prosecution being unnecessary she had reported the matter to the Police Station wherein she had not cited the present complainant being an eyewitness of the occurrence. She being an informer and eye-witnesses of the occurrence, was material witness and more reliable to that of the present complainant but the prosecution has substantially and intentionally withheld her testimony for the reason that she was not supporting the complainant's version. We are constrained to draw the presumption under Article 129 (g) of Qanun-e-Shahadat Order of 1984 that had she been produced before the learned trial court, she would have not supported the prosecution version". We are of the considered view that the prosecution has miserably foiled to substantiate the presence of eye-witnesses at the venue of occurrence beyond reasonable shadow of doubt and if to some extent, the presence of the widow of the deceased is admitted even then, in the absence source of light, the identification of the accused persons with their respective weapons and firing upon the deceased by the appellant is hardly believable. It is also unbelievable, astonishing, improbable and against the expectations of common prudence that the accused persons A remained standing at the place of occurrence with the deceased and awaited for attracting the witnesses at the venue of occurrence and on reaching the claimed eye-witnesses, the appellant had fired at the deceased so that the witnesses could be able to depose against them before the Court. We are of the view that both the witnesses are not truthful witnesses and they could not be relied upon to be true witnesses.
15. Dr. Muhammad Yousaf Nadeem (CW-4) had examined the deceased Shameer Ahmad while in injured condition on the same night on 21.01.2011 at 08:35 p.m. and observed a fire-arm lacerated wound deep going with profusely bleeding and brain matter was coming out from the wound on back and right side of head above from the right ear and margin of the wound was inverted and blackening present on the wound edges, the patient's condition was very serious, the injury was inflicted by fire-arm weapon within an hour.
On 28.1.2011 at 11:30 p.m. he had conducted post-mortem examination on the dead body of deceased Shameer Ahmed and found the injury on his person as aforementioned along with surgical wound. On dissection of the dead body, the skull bone underneath the Injury No, 1 was fractured, the brain matter was extensively damaged underneath Injury No, 1, a big hematoma was present in the brain, the brain meninges were also damaged under the scalp clotted blood and hematoma was present: He had opined that the cause of death was due to injury to the skull and brain which lends to coma and other complications as a result of Injury No:
1. The said injury was ante= modem in nature and was inflicted by fire-arm weapon whereas Injury No: 2 was surgical incision: The probable duration between injury and death was about eight days and between death end post-mortem about twelve hours. The purpose of post=mortem examination is always to ascertain locale, number and nature o Injuries, the kind of weapon used, the caw* of death and duration between injury and death but the same by itself does not raise finger towards any specific culprit. The medical evidence is of no benefit to the ocular account, which has already been discarded by this Court as discussed above.
16. So far as the motive part of the occurrence is concerned, it is not necessary to prove the motive in each and every case but if the same is suggested by the prosecution being the sole reason for causing of homicide murder then it becomes incumbent upon the prosecution to establish what had been urged in the crime report. The motive behind the occurrence, as mentioned in the crime report, was that about one month before the occurrence, the accused persons mentioned in the crime report being employees of one Muhammad Afzal, had quarreled on account of turn of water with the complainant and they threatened Shameer Ahmad of dire consequences. Though the motive has been mentioned in the crime report as well as in the private complaint yet the same has no basis as neither any schedule of turn of water has been produced before the Court nor the detail of landed property owned by the deceased has been mentioned to examine the reasoning as stated by the prosecution. Even otherwise, the motive was vaguely formulated, which does not inspire this Court's confidence. No separate evidence has been produced through any independent source to establish the motive part of the occurrence which is essential to be brought on record for its safe heaven. It goes without saying that the prosecution could not establish the motive part of the occurrence beyond reasonable shadow of doubt.
17.The appellant was arrested in this case on 11.04.2011 and in pursuance of his disclosure, he led to the recovery of pistol 30 bore (P-5) along with one live round (P-6). The weapon of offence was sent to the office of Punjab Forensic Science Agency for its comparison with the crime empty secured from the place of occurrence and the report of aforesaid agency is positive indicating that the empty had been fired from the pistol allegedly recovered at the instance of the appellant but the fact remains that the empty as well as the pistol were sent and received in the office of Ballistic Expert together on 01.10,2012 through Muhammad Aslam 1299/C but said Muhammad Aslam, constable had not been cited as a witness, however Muhammad Shoaib, ASI (CW.7) had stated that he being Moharrir of the Police Station handed over the parcel containing crime empty to Muhammad Tayab 350/C on 20,05,2011 for its onward transmission to the office of Ballistic Expert: He handed over the sealed parcel containing pistol 30-bore to Muhammad Naeem 1194/C on 20.06.2011 for its onward transmission to the office of Ballistic Expert, Contrarily, the report of Punjab Forensic Science Agency (Ex.PG) shows the name of submitting person as Muhammad Aslam 1299/C on 01.10.2012, Even otherwise, the aforesaid report of the Punjab Forensic Science Agency has been submitted with regard to the workability of the fire-arm weapon and the same was not found matched with the crime empty because of lack of primer and sufficient suitable corresponding microscopic markings. In the given circumstances, the recovery of weapon of offence at the instance of the appellant emained inconsequential.
18. The appellant has stated in his statement recorded under Section 342, Cr.P C. that prior to the occurrence, a quarrel had taken place between him and the members of the complainant party, the occurrence had taken place at night time where the identity of any culprit could not be possible due to darkness and that he had been substituted due to animosity and bickering between the parties making him an escape goat. He goes on to saying that the deceased had been murdered by some unknown dacoits and the appellant along with his co-accused had been falsely implicated in the said occurrence. It is a simple denial on the part of the appellant that he had been made an escape-goat in the aforesaid case whereas the occurrence had taken place in the dark night where the identification of any culprit cannot be possible for human being. However, if the prosecution is failed to substantiate the charge against the appellant then the statement recorded under Section 342, Cr.P.C. need not to be elaborately discussed.
19. Having scanned the entire prosecution evidence, adduced by the prosecution, we are of the considered view that the prosecution has not been able to establish the charge against the appellant beyond any reasonable shadow of doubt. Both the prosecution witnesses of ocular account could not establish their presence at the relevant time, as both the witnesses were sleeping in their respective rooms in the month of January on the same night. Moreover, no source of light had been mentioned by Mst. Nooran Bibi complainant in the first information report and even no point has been mentioned to indicate any source of light in the scaled site-plan prepared at the instance of eye-witnesses and, thus, the identification of a real culprit due to darkness of the night was not possible. The source of light mentioned by both the witnesses in their deposition and in a private complaint filed by Mat. Ashraf Bibi was an afterthought story and no reliance could be placed with aforesaid depositions of the prosecution witnesses of ocular account. We have observed that there are major contradictions between the evidence of both the witnesses which could not be last sight of and they adversely affect the prosecution case. It is well settled by now that if the ocular account is discarded the other evidence of corroboratory in nature could not become basis to meet the conviction and sentence. It is well settled principle of law that once the intrinsic value of ocular account is disbelieved then rest of the corroboratory evidence, even of a higher degree, would be automatically collapsed. We seek guidance in this regard from the case titled "Faqeer Muhammad versus Shahbaz Ali and others" (2016 SCM R 1441). The relevant portion of the aforementioned case law is as under: "After ruling out of the ocular account, the other circumstances of the case providing conoboration or support to the ocular account had automatically collapsed: In these circumstances High Court had extended the benefit of doubt to Respondent No, 1 and had acquitted him of the charge. Upon our own independent evaluation of the evidence we have not been able to take any legitimate exception to the said conclusion reached by the High Court."
The motive part of the occurrence as set up by the prosecution has not been established and the recovery of weapon of offence that too remained inconsequential, thus, we have no iota of evidence against the appellant to connect him with the alleged crime, thus, we have no other option except to acquit the appellant from the charge of murder.
20.The nutshell of above discussion is that Criminal Appeal No, 740 of 2012 filed by appellant Naveed Needu is allowed, his conviction and sentence awarded by the learned trial Court is set aside and he is acquitted of the charge by giving the benefit of doubt to him. He is directed to be released from jail forthwith, if not required to be detained in connection with any other case.
21. Murder Reference No, 114 of 2012 is answered in the NEGATIVE and the Death Sentence awarded to appellant is not confirmed.