FAROOQ HAIDER, J.: Through the above mentioned appeal Muhammad Asif (appellant) has assa iled the judgment dated 26.04.2014 passed by learned Additional Sessions Judge, Bahawalpur , whereby Muhammad Asif (appellant) has been convicted and sentenced under Section 302 (b)/34 PPC to imprisonment for life as Tazir alongwith payment of compensation of Rs.1,00,000/- to the legal heirs of deceased Muhammad Shafique under Section 544-A Cr.P.C. and in default thereof to further undergo one year R.I. with benefit of Section 382-B Cr .P.C.
2. Brief facts, as per Fard Bayan (Ex.P A) got recorded by Abdul Majeed complainant/PW -1 to Abdul Rauf SI in Bahawal Victoria Hospital, Bahawalpur , on the basis of which formal FIR No.316/2010 dated 25.7.2010 under Sections 302, 34 PPC at Police Station Cantt. Bahawalpur (Ex.P A/1) was registered, are that he is resident of New Sabzi Mandi and is labourer by profession; on 25.07.2010 at about 12/1:00 p.m. he alongwith his brother Muhammad Shafique came at the house of their brother-in-law Ameer Hamza situated at Basti Waseem Abad, Dera Izzat to see their sister; for short time, he and Ameer Hamza remained in the house whereas Muhammad Shafique, brother of complainant, went outside to take tea in the hotel situated in the street; on hearing report of fire shot at about 04:30 p.m., he (complainant) and Ameer Hamza came outside the house and saw Tariq, Asif, Sajid son of Ghulam Sarwar armed with pistols were making firing whereas their father Ghulam Sarwar was standing near them and raising lalkara; Sajid and Asif had caught hold Muhammad Shafique and Asif accused was hitting butt of pistol on his head; in the meanwhile, accused Tariq made straight fire shot upon Muhammad Shafique which landed on his buttock upon which he fell on the ground; they tried to apprehend the accused persons but they fled away from the place of occurrence while brandishing their weapons.
The motive behind the occurrence was that accused Tariq abducted the wife of Muhammad Shafique, who after getting the decree for dissolution of marriage contracted marriage with her , against which, some suits were filed.
The complainant and Ameer Hamza attended Muhammad Shafique, who became unconscious, therefore, Rescue 1122 was summoned and injured was got boarded in 1122 for taking him to Bahawal Victoria Hospital, Bahawalpur but he succumbed to the injury on the way before reaching the hospital.
3. After conclusion of the investigation, Muhammad Asif (present appellant), his co-accused Ghulam Sarwar , Muhammad Sajid (since acquitted) and Muhammad Tariq were sent to the Court for trial. They were formally charged under Sections 302, 34 PPC, to which they pleaded not guilty and claimed trial.
It will not be out of place to mention here that during trial of case, Muhammad Tariq accused absconded and his case was separated from his above said co-accused.
4. Medical evidence has been furnished by Dr. Talha Naeem PW-7, who conducted postmortem examination over the dead body of Muhammad Shafique and found the following injuries: - i) A lacerated semicircular wound on the lateral aspect of right thigh about 15 cm below the right anterior superior iliac spine. The margins of the wound were inverted and would w2aqs surrounded by tattooing. Size of the wound was 1.5 x 1 cm corresponding tear to inj No.1 was present in the Shalwar . It was the entry wound. ii) A lacerated semicircular wound on the anterolateral aspect of the left thigh about 10 cm below the anterior superior iliac spine, margins of the wound were everted and size was 1 cm x 1 cm, tear in the shalwar corresponding to injury No.2 was present. It was the exit wound. iii) A lacerated wound on the top of occipital region 2.5 cm x 1 cm x bone exposed but not fractured. iv) A lacerated wound on the occipital region 3cm below and lateral from injury No.3 on right side. Size is 1.5 x 1 cm x bone was not exposed. v) A lacerated wound on the left side of occipital region size was 1 cm x 0.5 x bone was not exposed. vi) A lacerated wound on the left side of occipital region 1 cm x 1cm x bone was not exposed.
He has stated that injuries No.1 and 2 have been caused with firearm weapon while injuries No.3 to 6 were caused by blunt weapon and all these injuries were ante mortem in nature; injury No.1, which caused damage to iliac vessels, mesenteric vessels and large intestine leading to excessive blood loss and hemorrhagic shock, was sufficient to cause death. The probable time between injury and death as described by him was 30 minutes and between the death and the postmortem examination was twenty four hours.
Prosecution produced its ten witnesses and then after tendering reports of experts closed its evidence.
Then statements of the accused were recorded under Section 342 Cr.P.C. in which they refuted the allegations levelled against them. However, they did not opt to appear as their own witnesses in their defence as envisaged under Section 340(2) Cr.P.C. except tendering some documents in defence as Ex.DA to Ex.DE and Mark "A" by accused Muhammad Asif. Muhammad Asif in reply to question "why this case against you and why the PWs have deposed against you" stated as under: - "I have falsely been involved in this case by the complainant due to his enmity with my brother Muhammad Tariq. I had no enmity or dispute with Muhammad Shafique. In fact, my brother Muhammad Tariq contracted love marriage with Mst. Salma Bibi ex. wife of Muham mad Shafique (since deceased). Mst. Salma Bibi in order to enter into marriage with Muhammad Tariq filed a suit for dissolution of marriage before the family Court and obtained a decree therefrom and observed her period of Iddat in Dar-ul-Aman and thereafter, contracted marriage with Muhammad Tariq on 29.6.2009 but Muhammad Shafique deceased was highly annoyed with that marriage and started to interfere into the life of Mst. Salma bibi and Muhammad Tariq whereupon, Mst. Salma Bibi filed a petition/complaint under Section 22-A Cr.P.C. against Muhammad shafique (since deceased) Muhammad Hamza (PW) and Waheed Baloch before worthy Justice of Peace, Bahawalpur and direction was issued to the police against Shafique etc. but they did not obey the said direction and again on 21.6.2010 Muhammad Shafique (since deceased), Ameer Hamza (PW) and Waheed Baloch criminally trespassed into the house of Muhammad Tariq and tried to abduct Mst. Salma Bibi but due to interference of inhabitants of locality they failed and with regard to that occurrence, Muhammad Tariq got lodged a case FIR No.263/2010, under Section 452/354/379 of PPC at Police Station Cantt. Bahawalpur against Muhammad Shafique and Ameer Hamza etc. I have no concern with any dispute between Muhammad Tariq and Muhammad Shafique. I run my shop and at the time of alleged occurrence I was present at my shop. The only purpose behind my nomination was to widen the net as my father and all my brothers have been roped into this case. As per my knowledge, deceased Muhammad Shafique attacked at the house of my brother Muhammad Tariq while armed with firearm in order to abduct Mst. Salma Bibi where he was resisted by inhabitants of the locality and during that resistance, Muhammad Shafique received injury on his body with his own pistol and succumbed thereafter.
The complainant and other private PWs are related inter-se and are interested witnesses. No independent person of the locality has deposed against me. The complainant is not the resident of the alleged place of occurrence and PWs of ocular account made false deposition before this Court due to their enmity with my brother Muhammad Tariq"
5. The learned trial court after conclusion of the trial has convicted and sentenced appellant Muhammad Asif as mentioned above while acquitted accused Ghulam Sarwar and Muhammad Sajid vide impugned judgment dated 26.04.2014.
6. Learned counsel for the appellant has submitted that impugned conviction and sentence recorded through impugned judgment are against the law and facts; that learned trial Court failed to appreciate material available on the record; that impugned judgment is result of misreading and non-reading of evidence; therefore, the same is liable to be set aside.
7. Conversely learned law of ficer has supported the impugned judgment.
8. Arguments heard. Record perused.
9. It has been noticed that although it is claim of the prosecution that occurrence took place at 04:30 p.m. on 25.7.2010 and FIR was recorded on the same day at 05:45 p.m. but record show s that postmortem examination was conducted at 11:00 a.m. on 26.7.2010, meaning thereby postmortem examination was conducted with delay of about 16 /2 hours and Dr. Talha Naeem, Medical Officer while appearing as PW-7 has categorically stated that no delay was caused by him in conducting postmortem examination and it was only due to the reason of receipt of police papers with delay , relevant portion of his statement is being reproduced below: - "It is our routine to conduct the postmortem examination of the dead body immediately after receiving the police papers and in this case I also followed the same procedure. There is no delay on my part to conduct postmortem examination "
This aspect of the case establishes that case was not registered promptly and it was registered after consultation, deliberation and concoction; none of the cited eyewitnesses were present at the time and place of occurrence; in this scenario, widening the net and roping entire male members of the family cannot be ruled out particularly when complainant was even not aware about the name of accused persons and same were told to him by Ameer Hamza (his behnoi) in the hospital. Hence, neither such FIR can be considered having any substantial value nor such registration of case can provide much help to the case of prosecut ion. Guidance in this regard has been sought from the case of "Shahbaz versus The State" (2016 SCMR 1763 ) and relevant portion therefrom is reproduced below: - "post-mortem examination of the deadbody of Aftab Akhtar deceased was noticeably delayed as the same had been conducted in the following morning and the duration between death and post mortem examination was recoded as about eleven hours. Its appears that time had been consumed by the complainant party and the local police in procuring the planting eye-witnesses and in cooking up a story for the prosecution"
Reliance is also placed on the case of "Haroon Shafique versus The State and others" (2018 SCMR 21 18).
As far as ocular account in the case is concerned, in this regard prosecution produced complainant Abdul Majeed PW-1 as eyewitness of the occurrence, however , it has been established on the record that he is not resident of place of occurrence rather his house is at a distance of one kilometer from the house of Ameer Hamza (his behnoi); his usual routine is that he remains engaged with his work at the time when alleged occurrence took place and in this regard relevant portion of his statement is hereby reproduced: - "I used to go for my work at 12:00/1:00 p.m and returned back at 07:00/8:00 p.m. "
Said PW-1 could not offer any plausible reason for his alleged visit to the house of his sister on the day of occurrence and even his sister did not come forward during investigation or trial of the case to verify/vouchsafe visit of Abdul Majeed in her house; he was not having any knowledge about the names of any accused persons and the same were told to him by Ameer Hamza (his behnoi) in the hospital; and he was having no meeting with1 the accused persons prior to occurrence, in this regard relevant portion of his statement is being reproduced as under:- "I had no meeting with Muhammad Tariq prior to this occurrence. Likewise I had no meeting with the other accused present in the Court prior to the occurrence "
Although PW-1 claims that his clothes were smeared with blood when he shifted Muhammad Shafique in injured condition to hospital but said clothes were not produced by him during investigation whereas Investigating Officer has clearly negated this stance in his statement before the Court wherein he categorically stated that clothes of complainant (PW-1) and PWs were not stained with blood when he met them firstly . Hence, he is related, interested and chance witness.
Similarly Ameer Hamza (PW-3) another eyewitness produced by the prosecution though is residence of house adjacent to the place of occurrence but time of occurrence was his job time and he was working as a Motorcycle Mechanic during the day of occurrence and running a shop at Chicken Wala Chowk Ghalla Mandi Road, Bahawalpur , which is not near to the place of occurrence and in this regard, operative part of his statement is being reproduced:- "I am running a motorcycle mechanic shop situated at Chicken Wala Chowk Ghalla Mandi Road Bahawalpur . I used to go to my shop at about 1 1.00 a.m. and returned back at 9.00 p.m."
So, at the alleged time of occurrence, he was supposed to be present at his job/shop; he could not offer any reason for his presence on the day and time of occurrence at his house or place of occurrence; his clothes were not stained with blood of the deceased and if these were stained with blood, the same have not been produced before the Investigating Officer; further Ameer Hamza (PW-3) is also an inimical witness because Tariq accused got registered case against him prior to the occurrence and in this regard, operative part of his statement is being reproduced below: - "It is correct that Tariq lodged FIR against me, Shafique and Waheed Balouch at P.S. Cantt. Bahawalpur , prior to this occurrence, for the purpose to abduct Mst. Salma Bibi "
Ameer Hamza (PW-3) categorically stated that Abdul Majeed complainant firstly confronted/meeting with the accused on the day of occurrence and he told the names of accused persons to him in the hospital. In view of this, Ameer Hamza is also related, interested, inimical and chance witness. It is trite of law that such type of chance witness cannot be relied upon in the murder case without strong corroboration from unimpeachable, independent and strong evidence, which is lacking in the case. Guidance in this regard has been sought from the case of "Mst. Sughra Begum and another versus Qaiser Pervez and others" (2015 SCMR 1142), "Muhammad Ameer and another versus Riyat Khan and others" (2016 SCMR 1233 ) and "Arshad Khan versus The State" (2017 SCMR 564 ) and "Nazir Ahmad versus The State" (2018 SCMR 787 ).
As far as medical evidence is concerned, it is trite of law that medical is not corroboratory piece of evidence because injury cannot speak about its author but can only confirm nature of injury and kind of weapon used and in this regard case of "Israr Ali versus The State" (2007 SCMR 525) and "Muhammad Mansha versus The State" (2018 SCMR772) can be referred. Furthermore Ameer Hamza PW-3 in his statement has categorically stated that accused persons gave butt blow prior to inflicting firearm injury to Muhammad Shafique and relevant part of his statement is being reproduced below: - "The accused persons gave butt blow prior to inflicting fire arm injury to Shafique "
Now it is crystal clear that butt blows were not only allegedly given by present appellant Muhammad Asif but by accused persons and when other two accused persons namely Ghulam Sarwar and Muhammad Sajid have been acquitted and no appeal against their acquittal has been filed, then on this score alone, present appellant also deserves for the same relief. It is also not out of place to mention here that injuries No.3, 4, 5 and 6 which all are at the back side of the head of deceased can be result of fall on hard cemented floor after receiving firearm injury, as in this case is and in this regard, statement of PW-10 can be referred safely, who categorically stated that place of occurrence was a cemented floor, relevant portion of his statement is being reproduced below: - "The blood was secured from the center of the shop and the same was a cemented place"
It is also important to mention here that learned trial Court in the impugned judgm ent at page 28 from 19 to 22 lines observed as under: - "Although it was first version of Muhammad Tariq accused recorded by the police that he had firstly of all fired at Muhammad Shafique deceased and then had caused injuries with butt of pistol on his head"
In this scenario, allegation of infliction of injuries with butt of pistol at head of deceased by Muhammad Asif appellant has not found corroboration from independent evidence rather has become doubtful and appears as result of exaggeration.
Similarly when joint role of catching hold of deceased was given to Sajid and appellant Muhammad Asif but Sajid has been acquitted, then appellant Muha mmad Asif also deserves for the same relief particularly when there is no independent corroboratory evidence against him. In this regard, reliance can be placed upon the case of "Mst.
Sughra Begum and another Vs Qaiser Pervez and others " (2015 SCMR 1142), and "Irfan Ali Vs The State "(2015 SCMR 840) "Zafar versus The State and others" (2018 SCMR 326), "Imtiaz alias Taj versus The State and others" (2018 SCMR 344 ) and "Haroon Shafique versus The State and others" (2018 SCMR 21 18).
No recovery whatsoever has been ef fected from the present appellant. Motive is also not attributed to him.
10. In view of what has been discussed above, prosecution has not been able to prove its case against the appellant Muhammad Asif beyond shadow of doubt rather his involvement in this case through widening of net in order to rope entire male members of the family and being brother of accused Muhammad Tariq (since P.O) cannot be ruled out.
11. Resultantly , this appeal is allowed, conviction recorded and sentence awarded to appellant through the impugned judgment dated 26.4.2014 are hereby set aside. Appellant is acquitted of the charge. Appellant is on bail, as during pendency of this appeal, his sentence was suspended on 10.3.2015 by this Court, therefore, his surety stands discharged from his all liabilities.
12. Before parting with this judgment, it is clarified that the observations in this judgment are only for the purpose of disposal of instant appeal.