Through this common judgment, I propose to decide both the afore-titled criminal appeals under Section 410, Cr.P.C. filed by appellants Muhammad Nadeem and Saif-ur-Rehman alias Saif Moqaddas respectively challenging the vires of judgment dated 25.09.2010 passed by the learned Additional Sessions Judge, Sahiwal in case FIR No, 294 dated 07.08.2006, in respect of offences under Sections 302, 364, 201 & 34, PPC, registered at Police Station, Yousaf Wala District Sahiwal whereby they were convicted and sentenced as under: Under Section 302(b) Pakistan Penal Code Imprisonment for life each and to pay the compensation Of Rs. 100,000/- each under Section 544-A, Cr.P.C. to the legal heirs of deceased Intizar Hussain and in case of default by any of the delinquents, that shall have to undergo simple imprisonment for six months.
They were held entitled to the benefit of Section 382(B), Cr.P.C.
2. The prosecution story unfolded in the crime report (Ex.PG/1) registered on the complaint of Muhammad Saleem, (PW-6) is that on 6.8.2006 at about 7:00 p.m., he alongwith his brother Intizar Hussain (deceased), a driver by profession, was present at Adda Gamber for loading when Saif-ur-Rehman and Nadeem (appellants), friends of his brother, came there and asked Intizar Hussain to accompany them and receive the rent of Rs.
1400/- whereupon Intizar Hussain accompanied them but did not return till next morning. The complainant felt worried and reached the hotel of Sikandar Khan for search of his brother because Nadeem was an employee at the nearby Daira of Akhtar Ali Baloch. Sikandar Khan told him that at about 5:00 a.m., Saif-ur-Rehman, Nadeem and Intizar Hussain had left his hotel after taking tea. In the meanwhile, Azhar and Imdad Ali (PW-8) came to the hotel and told that at about 5:30 a.m., they were passing through the road, they heard the cacophony of Intizar Hussain and reached at the Dera of Akhtar Ali and witnessed that Saif-ur-Rehman armed with a Kassi and Nadeem armed with a hatchet, were beating Intizar Hussain. In their view, Saif-ur-Rehman had inflicted Kasi blow whereas Nadeem inflicted repeated hatchet blows at the head of Intizar Hussain. They forwarded to rescue Intizar Hussain but the accused persons threatened them to the same consequences. Upon this information, the complainant alongwith the aforesaid witnesses reached at the place of occurrence and saw blood on the road. They searched the accused and also Intizar Hussain in the nearby fields and found the dead body of Intizar Hussain smeared with blood lying in Muraba No, 71.
3. Altaf Hussain, SI (PW-10) recorded the statement of the complainant (Ex.PG) on 07.08.2006. He visited the place of occurrence on the same day, prepared injury statements (Exh.PA/3), inquest reports (Exh.PB) and escorted the dead body to the mortuary. He inspected the place of occunence, secured blood-stained earth from there vide recovery memo. Ex.PH, prepared rough site-plan Ex.PJ of the place of occurrence and recorded the statements of witnesses under Section 161, Cr.P.C.
Zahoor Ahmad, SI (PW-9) had arrested the appellants on 3.9.2006, who were produced before him by Abid Hussain and Afzal PWs. On 16.09.2006, appellant Saif-ur-Rehman led to the recovery of Killa (P-3) and Kissi (P-4), which were taken into possession ride recovery memo. Ex.PE. He got prepared scaled site-plan Ex.PF and recorded the statements of witnesses under Section 161, Cr.P.C.
4. Dr. Nadir Shabbir (PW-1) had conducted autopsy on the dead body of deceased Intizar Hussain on 07.08.2006 and observed the following injuries:-
1. A lacerated wound with regularly torn margins about 7 x 5 cm in size with underlying bone exposed on the left side of top of head about 2 or 3 inches above left ear.
2. A lacerated wound about 5 x 1 cm with underlying bone exposed about 2 to 3 cm medial to Injury No, 1.
3. A lacerated wound about 6 x 1.5 cm with underlying bone exposed on the mid top of head.
4. An abrasion 6 x 2 cm on the mid-front of right lower leg about 3 to 4 cm above the ankle joint.
On dissection of skull under Injuries No, 1 to 3, there was fracture in transverse direction, extending from left to right ears and the skull was covered with a big blood clot under the said injuries. There was big subdural and extra-dural hematoma under the injuries and the brain matter was showing multiple blood clots of variable sizes.
The cause of death was due to fracture of the skull under Injuries No, 1 to 3 causing damage to the vital organ of brain and causing massive hemorrhage and shock and then death. All the injuries had been caused by blunt weapon and were sufficient to cause death in ordinary course of nature. The probable duration between injuries and death was up to 15-minutes and between death and post mortem examination 24-hours.
5. At the commencement of trial, the prosecution had produced ten witnesses besides the report of Chemical Examiner ( Ex.PJ) and that of the Serologist (Ex.PK). The prosecution had given up Azhar Ali and Nazir Ahmad, constable PWs being unnecessary while Abid Hussain and Muhammad Afzal PWs being won over by the accused. The appellants, in their statements recorded under Section 342, Cr.P.C., had denied and controverted all the allegations of fact levelled against them. They neither opted to make statements under Section 340( 2), Cr P C. nor had they produced any witness in their delence However, they had relied on the documents Ex.PW- 9/A and Ex.PW 9/B
6. Learned trial Court, upon conclusion of the trial, had convicted and sentenced the appellants supra aide impugned judgment dated 25.09.2010. Hence, these criminal appeals.
7. Learned counsel for the appellants submit that the appellants are quite innocent and have falsely been implicated in the alleged occurrence; that it was a blind murder committed by someone else in the dark night; that the place from where the dead body of the deceased was found lying i,e, the sugarcane crop, was not visible; that only last seen evidence is not sufficient to connect the appellants with the murder in issue; that the claimed eye-witness namely Imdad Hussain (PW-6), being resident of some other place, could not establish his presence at the place of occurrence at the relevant time; that the unnatural conduct of said material witness of going towards the hotel after seeing the occurrence instead of intervening to save the life of the deceased by itself creates doubt being unbelievable and unhuman; that the prosecution witnesses have improved their version before the learned trial Court in order to bring it in line with the medical evidence, which was duly confronted to them during cross-examination; that the delay in reporting the matter to the police as well as delay in conducting the postmortem examination on the dead body of the deceased by itself speaks volume, showing the possibility of deliberation, consultation and maneuvering the evidence against the appellants; that the prosecution has badly failed to prove the charge of the murder in issue against the appellants beyond shadow of reasonable doubt. Finally, prayer for acquittal of the appellants has been made.
8. Conversely, learned Deputy Prosecutor General appearing for the State has vehemently opposed the contentions raised by learned counsel for the appellants while submitting that sufficient evidence in shape of extra-judicial confession and the ocular account is available with the prosecution, which is sufficient to connect the appellants with the murder in issue; that Sikandar Ali (PW-5) was an independent witness, who had lastly seen the deceased in the accompany of the appellants while taking tea at his hotel just half an hour prior to his murder; that evidence of Imdad Ali (PW-8), an eye-witness of the occurrence had deposed quite naturally and in line with medical evidence; that visit of Imdad Ali early in the morning at the hotel was not unusual and he cannot be termed as a chance witness rather he was quite natural witness of the occurrence; that the prosecution witnesses have no or any previous animosity against the appellants to make false statement against the appellants; that respective recoveries of the weapons of offence at the instance of the appellants further strengthen the prosecution version; that the trial Court has well appraised the material available on record, which needs no interference by this Court. In the end, he has prayed for dismissal of the aforesaid appeals.
9. I have heard learned counsel for the appellants, learned Deputy Prosecutor General appearing for the State and perused the record with their able assistance.
10. The mainstay of the prosecution is on the testimony of Sikandar Ali (PW-5), Muhammad Saleem (PW-6), the complainant/brother of deceased Intizar Hussain and Imdad Ali (PW-8)/brother-in-law of the complainant.
Sikandar Ali and Muhammad Saleem claimed themselves to have lastly seen the deceased in the company of the appellants whereas Imdad Ali (PW-8) had claimed to be an eye-witness of the occurrence.
Muhammad Saleem (PW-6/complainant) while appearing in the dock in the Court room had made somewhat improved statement to that of his first statement made before Altaf Hussain SI (PW-10) under Section 154, Cr.P.C., mentioned in the preceding paragraph of this judgment. In his examination-in-chief, the complainant had cleverly tried to explain each and every minute detail of they occurrence stating that he was owner of a Dala, which was under his use as driver, about 3 1/2 years back, at about 07:00 p.m., appellants Saif-ur- Rehman and Nadeem came at Adda Gamber in his presence, took Intizar Hussain with them for the payment of rent but he did not return till the following morning whereupon he reached at the hotel of Sikandar (PW-5) in search of his brother, who told him that at about 5:00 a.m. both the appellants and the deceased had taken tea and crossed the railway line and in the meanwhile, Imdad Hussain (PW-8) and Azhar (given up PW) had come and told that appellants Saif-ur-Rehman armed with Kassi and Nadeem armed with peg were beating the deceased at the Dera of Akhtar Hussain and when they tried to rescue him, the appellants intimidated them. On getting said information, the complainant alongwith other witnesses went to the pointed place and saw blood on the road but no one was present there, they searched here and there they found the dead body of deceased Intizar Hussain lying in the sugar-cane crop in Killa No,
4. The complainant is a sole witness of taking the deceased by the appellant on 06.08.2006 whereas his other part of the statement is based on hearsay evidence furnished to him by Sikandar Ali (PW-5), Imdad Ali (PW-8) and Azhar (given up), which otherwise was objected to by the defence during his examination-in-chief. The complainant's deposition with regard to his earlier part of the statement could not get corroboration from any other independent source of evidence whereas his second part, being hearsay and inadmissible in evidence, needs no discussion in detail.
11.Sikandar Ali (PW-5), a material witness of last-seen had deposed and confirmed the factum of taking tea by the appellants alongwith the deceased at his hotel, thereafter crossing railway line and then after about 10/20 minutes, giving information to the complainant on his arrival. He then made different statement to that of the complainant stating that when they were still busy in talks, Azhar and Imdad had come there, they got aside and short after they left the place, there was alarm about the murder of Intizar Hussain. During cross-examination, he was confronted with his earlier statement Ex.DA on material particular of the incident and thereby the defence had succeeded to shatter his credibility. No doubt, he was an independent witness but he did not utter even a single word that Imdad and Azhar PWs had come to them and told that they had seen the appellants beating the deceased. Furthermore, the sole statement of the said witness of lastly seen the deceased in the company of the appellants at about 5:00 a.m., requires corroboration from other independent source of evidence in order to establish the nexus of the appellants with the murder in issue, which is obviously lacking in this case.
12, Imdad Hussain (PW-8) was a sole eye-witness to the extent that he alongwith Azhar PW had seen the appellants while beating the deceased with Kassi and peg on the fateful morning at about 05:30 a.m., they tried to save the deceased but due to the intimidation of the appellants, they left the place and told the whole story to the complainant alone. He further deposed that appellant Saif-ur-Rehman was armed with a Kassi whereas appellant Nadeem was armed with a peg and in their view Saif-ur-Rehman had given a Kassi blow from its peen side whereas Nadeem had given peg blows, both at the head of the deceased. He further claimed that they rushed towards the place of occurrence and found blood on the road, they searched the deceased and found his dead body lying in the sugarcane crop. In cross-examination, he had admitted that Intizar Hussain was younger brother of Muhammad Saleem with whom his sister was married and Azhar (given up PW) was cousin (phophizad) of the deceased, he was resident of Chak No, 5215-L whereas dead body of deceased Intizar Hussain was recovered from a distance of 1/2 - 2 kilometers from the Abadi of Chak No, 53/5-L, which was towards North from his residential Chak where he had not owned any shop, land, house or any business and the hotel was at a distance of 2-1/2-3 kilometers from Abad i of Chak No, 52/5-L towards West, he and Azhar (given up PW) went together on that very day at Azan-W aila, he had not narrated before the police the purpose of his proceeding towards hotel of Sikandar Ali. It is quite amazing and unbelievable that their close blood relative was being beaten by the appellant but they had not intervened to rescue the deceased especially when the appellants had no conventional weapon with them rather they had left the deceased at the mercy of the appellants and straightaway went to the hotel in a manner as if they were having knowledge about the presence of complainant over there. All this episode makes the presence of both the claimed eye-witnesses highly doubtful and not worth reliance in view of the dictum laid down in case titled "Liaquat Ali versus The State" (2008 SCMR 95) wherein it has been held as under: "The explanation given by these witnesses that since Liaquat Ali had threatened them therefore, they could not go near Fazil deceased to rescue him is repellent to commonsense as Liaquat Ali was not armed with a firearm which could have scared the witnesses away. He was a single alleged assailant and if the witnesses were there at the spot they could have easily overpowered him. This makes their presence at the spot doubtful."
Furthermore, the narrated facts by itself indicate that Imdad Hussain was resident of some other place and he had no shop, land, house, or any other business whatsoever to be present or proceeding nearby the venue of occurrence. He was a chance witness and his testimony cannot be given weight unless he proves his presence at the venue of occurrence beyond shadow of reasonable doubt. Legally speaking, a chance witness is one, who is not supposed to be present at a specific place unless he offers convincing and confidence inspiring reason to justify his presence. Once the claimed eye-witness has failed to prove t he purpose or definite work of' his presence at the venue of occurrence at the relevant time, the established principle of law is that his testimony cannot be relied upon to maintain the conviction and sentence under the capital charge. Reliance is placed on case titled RUKIISANA BEGUM and others versus SAJJAD and others" (2017 SCMR 596) wherein it has been held as under:-- "A single doubt reasonably showing that a witness/witnesses' presence on the crime spot was doubtful when a tragedy takes place would he sufficient to discard his/their testimony as a whole. This principle may be pressed into serve in cases where such witness/witnesses are seriously inimical or appears to be a chance witness because judicial mind would remain disturbed about the truthfulness of the testimony of such witnesses provided in a murder case, is a fundamental principle of our criminal justice system."
13. Another intriguing factor relevant to the discussion is that the credibility of Altaf Hussain, SI (PW-10), who had visited the place of' occurrence on the same day is highly doubtful because he had prepared inquest report and attempted to fill all its relevant columns according to narration of the eye-witnesses but column No, 4 regarding the name of person identifying the dead body contains cutting over the time of identification mentioned it as 02:00 p.m. on 07.08.2006. The aforesaid claim of the eye-witnesses and the recovery of dead body of the deceased wearing only blood-stained Shalwar from sugarcane crop at 05:30a.m., stands falsified on this score alone.
14.Dr. Nader Shabbir (PW-1) had conducted autopsy on the dead body of the deceased Intizar Hussain on 7.8.2006 and observed the injuries mentioned in the preceding paragraph. The cause of death was due to fracture of the skull under Injuries No, 1 to 3 causing damage to the vital organ of brain and causing massive hemorrhage and shock and then death. All the injuries had been caused by blunt weapon and were sufficient to cause death in ordinary course of nature. The probable duration between injury and death was up to 15-minutes and between death and post-mortem examination 24-hours.
The purpose of postmortem examination is always to ascertain the cause of death, nature, locale and number of injuries, kind of weapon used and the duration between injuries and death as well as death and postmortem examination but it does not raise finger towards any specific culprit. Moreover, as per prosecution's own version, the deceased was killed at about 05:30 a.m. and the postmortem examination was conducted on the same day at 06:30 p.m. after thirteen 'hours whereas the duration between death and post-mortem had been shown by the Medical Officer as 24-hours. The duration between death and post-mortem as narrated by the claimed eye- witnesses as well as witnesses of last-seen and that of the Medical Officer is not compatible to each other, which shows that the deceased had been done to death in early hours of night by some unknown accused persons and the evidence of ocular account was maneuvered and managed after the recovery of the dead body of the deceased from sugarcane crop. We seek guidance from the case titled "Muhammad Rafique versus The State" (2014 SCMR 1698), "Faqeer Muhammad versus Shahbaz Ali and others" (2016 SCMR 1441) and "Muhammad Ryas versus Muhammad Abid alias Billa and others" (2017 SCMR 54) wherein it has been held as under: "Post-mortem Examination of the dead body of Muhammad Shahbaz deceased had been conducted after nine hours of the incident which again was a factor pointing towards a possibility that time had been consumed by the local police and the complainant party in procuring and planting eye-witnesses and cooking up a story for the prosecution."
15.Both the appellants were arrested in this case on 03.09.2006 and during investigation one of appellants namely Saif-ur-Rehman made a disclosure and led to the recovery of weapon of offence peg (P-3) and likewise Nadeem got record Kassi (P-4), which were not stained with blood due to which the same were not sent to the office of Chemical Examiner for analysis. Both the aforesaid articles being of common pattern, are available in almost every house in the rural areas and in absence of any expert report with regard to the presence of human blood over there, the same cannot be safely connected with the appellants.
16.The appellants, in their statements recorded under Section 342, Cr.P.C., had made simple denial claiming it to be an unseen and blind murder, which had taken place in the dark night. However, appellant Muhammad Nadeem added that the deceased was murdered on account of being sodomite by some unknown accused persons. Both the appellants had not produced any oral or documentary evidence in support of their claim and the same being an afterthought story, is straightaway discarded.
17.Having scanned the entire prosecution evidence, I am of the considered view that prosecution has miserably failed to bring home the guilt of the appellants beyond shadow of reasonable doubt by producing cogent and confidence inspiring evidence. Sikandar Ali (PW-5) and Muhammad Saleem (PW-6) had lastly seen the deceased in the company of appellants on 06.08.2006 at about 7:00p.m. and in the following morning at about 5:00 a.m. respectively but during cross examination they could not stand on their legs and made dishonest improvements in their deposition before the learned trial Court in order to bring the case in line with medical evidence to which they were confronted on major aspects of the case by the defence. Even otherwise, the testimony of Sikandar Ali (PW-5) was maneuvered and he was planted to show continuity of the prosecution story, which otherwise remained uncorroborated from any other independent source of evidence and his claim of lastly seen the deceased in the company of the appellants, being a weak type of evidence is not sufficient enough to connect the appellants with the murder in issue. Imdad Ali (PW-8) was a chance witness and he could not establish his presence at the venue of occurrence beyond shadow of reasonable doubt, which is not believable and worth reliance due to his unnatural conduct at the venue of occurrence for not intervening to save his nearer and dearer. The ocular account is contradictory with the medical evidence qua the duration between the death and postmortem examination of the dead body of the deceased, suggesting that the deceased was done to death in early hours of night by some unknown person due to some mysterious reasoning as the dead body was found naked. The time for identification of the dead body of deceased is mentioned in inquest report as 02:00 p.m., which is quite contrary to the prosecution as claimed for. The motive behind the occurrence has not been set up by the prosecution itself, which remained shrouded in mystery. The defence has taken a plea of simply denial adding that the deceased was sodomite and they had taken such plea perhaps due to the condition of the dead body at the time of its recovery. What to speak of a reasonable doubt, the case in hand is replete with doubts and the benefit of doubt always favours the accused as a matter of right and not grace. Reliance is placed on case titled "Muhammad Akram versus The State" (2009 SCMR 230) wherein at page No, 236, it has been held as under: "It is an axiomatic principle of law that in case of doubt, the benefit of thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervaiz v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."
18. For what has been discussed above, both the appeals in hand are allowed, the conviction and sentence of appellants Muhammad Nadeem and Saif-ur-Rehman alias Saif Muqadas are set aside and they are acquitted of the charge by extending the benefit of doubt to them. They are present on hail, their bail bonds as well as the sureties stand discharged from the respective liabilities.