Ch. Abdul Aziz, J. Appellants, namely , Nasarullah and Amanullah along with another co-accused Asmatullah involved in case F.I.R No.414/2012 dated 04.03.2012 registered under sections 302,109 & 34 PPC at Police Station Sadiqabad, were tried by learned Additional Sessions Judge, Sadiqaba d. The learned trial court vide judgment dated 05.03.2015 while acquitting Asmatullah proceeded to convict and sentence the appellants in the following terms:- Nasarullah U/S 302 (b) PPC to suffer death sentence. He was also (appellant)directed to pay Rs.1,00,000/- as compensation to the legal heirs of deceased under section 544-A, Cr.P.C. and in default whereof to undergo six months SI.
Amanullah U/S 302 (b) PPC to suf fer imprisonment for life. He was also (appellant)directed to pay Rs.1,00,000/- as compensation to the legal heirs of deceased under section 544-A, Cr.P.C. and in default whereof to further undergo six months SI. Benefit of section 382-B, Cr.P.C. was also extended in favour of the appellant.
Challenging their conviction and sentence, appellants, namely , Nasraullah and Amanullah filed Criminal Appeal No.1 13-J of 2015/BWP , whereas Munir Ahmad complainant (PW.3) filed Criminal Appeal No.264 of 2015/BWP against the acquittal of Asmatullah (respo ndent No.1) Likewise, trial court sent reference under section 374, Cr.P.C. which was numbered as Murder Reference No.17 of 2015/BWP for the confirmation or otherwise of death sentence awarded to Nasarullah (convict). All these matters are being disposed of through this single judgment.
2. Briefly stated the case of the prosecutio n as unveiled by Munir Ahmad complainant (PW.3) in F.I.R (Exh.PD/1) is to the effect he along with his brother Shahbaz Ali alias Shahbazi who was Chowkidar in FFC Mills, was proceeding towards Chowk Bagh-e -Behis hat from their house; that when he and his brother reached metalled road leading from Maachi Goth to Walhar , Amanullah (appellant) armed with hatchet, Nasarullah alias Sajja (appellant) armed with pistol .12 bore and Asmatullah (since acquitted) armed with hatchet emerged there; that Nasarullah alias Sajja exhorted to Shahbaz alias Shahbazi (deceased) that they would give him the taste for chopping his nose; that on his hue and cry, Allah Wadhaya and Muhammad Sharif PWs who were going on the said road, came there; that in their view, Amanullah inflicted hatchet blow which landed above the left ear of Shahbaz Ali; that Asmatullah inflicted hatchet blow on the front of neck of Shahbaz Ali; that on receipt of said injuries, Shahbaz Ali fell on the ground; that Nasarullah fired from his 12 bore pistol which hit on front side of belly of Shahbaz Ali; that he and other PWs tried to apprehend the accused who threatened that if they stepped forward they would be dealt with in the same manner and that the accused persons fled away from the spot with their respective weapons. The motive behind the occurrence statedly was that one year prior to the occurrence, Shahbaz Ali (deceased) chopped the nose of Nasarullah alias Sajja (appellant).
3. The law was set into motion on the statement (Exh.PB) of Munir Ahmad (PW.3) recorded by Altaf Hussain SI (PW.9) during his visit to the crime scene. He dispatched statement (Exh.PB) to the police station for the registration of formal F.I.R through Jam Gaman 1106/C. He prepared injury statement (Exh.PG/1), inquest report (Exh.PG/2) and sent the dead body of Shahbaz Ali (deceased) to mortuary for the purpose of postmortem examination through Kashif Latif 1302/C. From the spot, he collected blood stained earth vide recovery memo Exh.PD. He arrested Nasarullah alias Sajja, Asmatullah and Amanullah accused on 20.07.2012. During interrogation Nasarullah and Amanullah (appellants) made separate disclosures and in pursuance thereof led to the recovery of pistol .12 bore (P.3) and hatchet (P.2) which were taken into possession vide memos Exh.PC and Exh.PB respectively . He recorded the statements of the witnesses under section 161, Cr.P.C. and produced the file to Station House Of ficer for the preparation of report under section 173, Cr .P.C.
4. Prosecution in order to prove its case against the appellants produced eleven PWs including Munir Ahmad (PW.3) and Allah Wadhya (PW.4), eyewitnesses of the occurrence, Dr.Ghazanfar Shafique (PW.5) who furnished medical evidence, Altaf Hussain SI (PW.9) and Manzoor Hussain SI (PW.10), who investigated the case. The remaining witnesses, more or less, were formal in nature.
5. Dr. Ghazanfar Shafique (PW.5) on 04.07.2012 at about 4:00 p.m. conducted the autopsy of Shahbaz Ali alias Shabazi and noted the following injuries:- (1). There was huge incised wound measuring about 18 cm x 3 cm x deep x bone (fractured temporal bone) present at left temporal region of skull.
(2). There was heavy and sharp wound almost 2/3rd area of neck present at the right side and front of neck.
Only 1/3 of neck was intact. All major arteries and veins were damaged. Cervical spine, trachea were crushed. Clotted blood was present.
(3). There were multiple entry wound s present on epigastric region and abdominal region. Margins of wound were inverted. The larger woun d was about 2 cm x 2 cm and other was smaller in size. Blackening and tattooing were also present. Cloth es were also torn on all site of injuries. Top wed was found from the larger injuries. After opening small and large intestines were also injured due to pellets. Liver and heart were also injured due to pellets. Clotted blood was present in both cavities. (thoracic and abdominal).
The doctor gave the following opinion:- "After conducting the postmortem examination, in my opinion, all the injuries were ante mortem in nature.
All the injuries collectively and injuries No.2 and 3 individually can cause the death immediately due to shock, haemorrhage and injuries to vital organs (as mentioned in injury statement).
The probable time that elapsed between injury and death was immediately and between death and postmortem was about 12 hours."
6. After the conclusion of prosecution evidence, the learned trial court examined the appellants under section 342, Cr.P.C. who in response to question "why this case against you and why the PWs have deposed against you" maderd the following similar reply:- "Case against me due to family enmity . PWs deposed against me due to close relationship with complainant. "
The appellants neither opted to make statements under section 340 (2) of Cr.P.C. nor produced any evidence in their defence. On the conclusion of trial, the appellants were convicted and sentenced as mentioned above, hence, the instant appeals and murder reference.
7. It is contended on behalf of appellants that though this is the claim of prose cution that the occurrence was promptly reported to police, however , the perusal of record reveals otherwise; that the autopsy of deceased was conducted at about 4:00 p.m. and according to doctor such delay occurred due to belated submission of police documents; that the two eyewitnesses of the occurrence were residents of a place situated at about 8/9 kilometer from the crime scene, thus were chance witnesses; that the eyewitnesses failed to furnish any plausible explanation for their presence at the spot; that the time of occurrence narrated by the eyewitnesses was strongly negated from the medical evidence; that though the narrators of ocular account were closely related to deceased, however , responded unnaturally to the situation by not accompanying the deceased to hospital; that the eyewitnesses contradicted each other on material points which rendered them unworthy of any reliance; that though prosecution came forward with a specific motive, however , failed to prove it; that the recovery of pistol .12 bore effected from Nasarullah appellant is of no consequence as it did not match with the crime empty recovered from the spot; that even the hatchet recovered at the behest of Aman Ullah appel lant since was found not having human blood thereupon, hence, is of no legal effect and that though plain reading of prosecution evidence gives rise to a reasonable doubt, however , its benefit was withheld from the appellants. With these submissions, it was urged that the appellants be acquitted from the case.
8. On the other hand, learned law officer as well as counsel for the complaina nt vociferously argued that the information of occurrence was swiftly conveyed to police which formed basis of promptly lodged FIR; that the appellants and their acquitted co-accused were specifically nominated in the crime report along with the role performed by them in the commission of crime; that the eyewitnesses of occurrence though were closely related with the deceased but had no animus against any of the appellants; that they provided straightforward and confidence inspiring detail of the occurrence; that the ocular account of occurrence furnished by the two witnesses was fully supported by the medical evidence; that the ocular account is fully corroborated from the motive as well as from the recoveries of weapons effected from the respective appellants and their acquitted co-accused and that since the appellants and their acquitted co-accused committed cold blooded murde r of an innocent person, hence, deserve no leniency . The learned counsel for the complainant also pressed hard for the conversion of acquittal pronounced in favour of Asmat Ullah into conviction.
9. Arguments heard. Record perused.
10. It emerges from a wade through the record that case in hand is arising out of an occurrence which took place on 04.07.2012 at about 10:00 a.m. in a vicinity known as Mauza Muhammad Murad Macchi, situated at a distance of 9-kilometers from Police Station Saddar Sadiqabad. The tale of crime was imparted to Altaf Hussain SI (PW.9) upon his arrival to the crime scene through the oral statement (Exh.PD) of Munir Ahmad (PW.3) presented at about 10:45 a.m. In reference to reporting the occurrence to police, we have noticed multiple factors discernible from record, giving a clue that indeed the case was not registered at the acclaimed time. In this regard, firstly , it is observed that though the occurrence took place at about 10:00 a.m. but the corpse of Shahbaz (deceased) arrived in THQ Hospital Sadiqabad at about 3:00/3:15 p.m. and postmortem examination was carried out at about 4:00 p.m. i.e. six hours after the occurrence. The afflux of six hours occurred in autopsy was attributed by Dr.Ghazanfar Shafique (PW.5) to delayed submission of relevant papers by police. It will not be out of place to mention here that certain pre-requisites are laid down for the medical officers in respect of conducting autopsy and foremost out of them is the receipt of police papers before such examination as elaborated by Dr. S. Siddiq Husain in Chapter-III of his book "Forensic Medicine and Toxicology" . Similarly , at the time of sending the corpse for medical examination, the Investigating Officer is required to follow the mandate of Chapter 25 Rule 37 of Police Rules, 1934 by providing the documents mentioned therein to the Medical Officer. Keeping in view the fact that dead body was dispatched to hospital at about 10:30 a.m. as stated by Altaf Hussain S.I (PW.9), hence, the prosecution was obliged to offer some explanation for delay in holding autopsy . Needless to mention here that such delay is always looked with suspicion and reflects advers ely upon the time of registration of case. The Hon'ble Supreme Court of Pakistan in the case of Muhammad Ilyas v. Muhammad Abid alias Billa (2017 SCMR 54) while dealing with the delayed postmortem observed as under:- "Post-mortem examination of the dead body of Muhammad Shahbaz deceas ed had been conducted after nine hours of the incident which again was a factor pointing towards a possibility that the time had been consumed by the local police and complainant party in procuring and planting eye-witnesses and cooking up a story for the prosecution."
It is further noticed by us that the complaint (Exh.PD) was prepared at the crime scene and was forwarded to police station for the registration of formal FIR (Exh.PD/1) through Jam Ghaman 1106/C but he was not produced during trial. In this context, without any hesitation, the evidence of Jam Ghaman 1106/C had its own importance for proving the prompt registration of FIR. From withholding his evidence, the prosecution has missed a link from the chain of circumstances required to prove the prompt registration of case.
11. The review of record reveals that the case in hand was registered for an occurrence in which one Shahbaz alias Shahbazi met homicidal death and accusation of having participated in the occurrence was rested upon the shoulders of Amanullah and Nasarullah (appellants) along with their acquitted co- accused Asmatullah. So far as, Amanullah (appel lant) and Asmatullah (since acquitted) are concerned they are ascribed the role of inflicting one hatchet blow each on the neck of deceased. As regards, Nasarullah (appellant) he is saddled with the allegation of causing firearm injury on the abdomen of deceased through a .12 bore pistol shot.
The ocular account of the occurrence was furnished by the brother of the decease d, namely , Munir Ahmad (PW.3) and his paternal uncle Allah Wadaya (PW.4). Before resorting to an in-depth analysis of ocular account, it is considered appropriate to mention here that there are multiple factors which provide credibility to the testimony of an eyewitness of a murder occurrence and foremost out of them is the justification put forth for his presence at the crime scene. In this backdrop, it is noticed that both the eyewitnesses had their place of abode at a distance of 8- kilometers from the crime scene. Since this is an important aspect, hence an excer pt from the cross-examination of Munir Ahmad (PW .3) is being reproduced hereunder:- "My house is at a distance of 8-K.M. from the place of occurrence towards North. My deceased brother was also living with us. Houses of Allah Wadaya and Muhammad Sharif are also contiguous with us."
In addition to above extract, it is noticed that neither Munir Ahmad (PW.3) nor Allah Wadaya (PW.4) offered any explanation in their examination-in-chief for the acclaimed presence at the spot. Similarly, it can well be gathered from the deposition of two eyewitnesses that they along with deceased arrived at the eventful place not in accordance with their daily routine. Cumulatively, these circumstances make the narrators of ocular account as chance witnesses. As per settled principles laid down for evaluating the intrinsic worth of a chance witness, his testimony is always looked with suspicion. In order to qualify acceptance for awarding conviction, the evidence of chance witness is to be evaluated on the touchstone of corroboration from other source of unimpeachable character . If the tale of occurrence provided by such a witness is supported and corroborated from other attending circumstances, superstructure of conviction can be raised thereupon, otherwise, it is destined to be discarded. A chanc e witness is described and defined as the one who has no plausible explanation for his presence near the place of occurrence at the time of commission of offence. The Hon'ble Supreme Court of Pakistan in the case of Mst. Sughra Begum and another v. Qaiser Pervez and others (2015 SCMR 1 142) while dealing with a case of chance witness observed as under:- "A chance witness, in legal parlance is the one who claims that he was present on the crime spot at the fateful time, albeit, his presence there was a sheer chance as in the ordinary course of business, place of residence and normal course of events, he was not supposed to be present on the spot but at a place where he resides, carries on business or runs day to day life affairs. It is in this context that the testimony of chance witness, ordinarily, is not accepted unless justifiable reasons are shown to establish his presence at the crime scene at the relevant time. In normal course, the presumption under the law would operate about his absence from the crime spot. True that in rare cases, the testimony of chance witness may be relied upon, provided some convincing explanations appealing to prudent mind for his presence on the crime spot are put forth, when the occurrence took place otherwise, his testimony would fall within the category of suspect evidence and cannot be accepted without a pinch of salt".
The afore-mentioned aspect acquires more importance when seen in the context that in the days of occurrence, deceased was working in FFC Factory . Though, according to Munir Ahmad (PW.3), he and his slain brother were sharing same house, however , he expressed complete ignorance about the duty hours of deceased. Realizing the importance and consequences of this aspect, the relevant portion from the cross-examination of Munir Ahmad (PW.3) is being referred, which is as under:- "On the day of occurrence, I did not go in the mill. My brother was employee at that time. Since four years my brother was working in that mill. I did not know working hours of my brother on that day. On the earlier day of the occurrence, I do not know at what time he had gone to the mill and returned therefrom. "
The lack of knowledge put forth by Munir Ahmad (PW.3) regarding the working hours of his deceased brother appears to be intentional and cannot be taken lightly . Probably , the working hours of deceased were not coinciding with the time of occurrence, hence these were concealed by Munir Ahmad (PW.3). The presence of an eyewitness at the crime scene can be assessed from the detail of post-occurrence events. In this respect, it unveiled from record that Altaf Hussain S.I (PW.9) reached the place of occurrence at about 10:00 a.m. and dispatched the dead body to mortuary at about 10:30 a.m. in the company of some civilians. Conversely , Munir Ahmad (PW.3) narrated altogether a different detail regarding the time of shifting the dead body to hospital. The two eyewitnesses came forward with a disjointed stance in this regard as Munir Ahmad (PW.3) claimed to have accompanied the dead body to the hospital at about 3:00 p.m., however , Allah Wadaya (PW.4) deposed that it was shifted to hospital by police without accompanying private person. No doubt such conflict relates to a post-occurrence event, however , upon a meticulous scrutiny , it reflects the unnatu ral conduct of the witnesses and demonstrating their absence from the spot. It needs no mention that on account of their close relationship the two PWs should have accompanied the dead body to hospital and more importantly when the spot inspection had already come to an end. Similarly , no blood stains were found on the clothes of eyewitnesses as is evident from the state ment of Altaf Hussain SI (PW.9).
Lastly , it is observed that though Allah Wadaya (PW.4) was present at the spot ten minutes earlier to the occurrence and must have noticed the presence of the enemies of his nephews but never warned the deceased in this respect. Probably, in order to address such anomaly, Allah Wadaya (PW.4) stated that there was a sugarcane crop adjacent to the road and the perpetrators were in ambush therein. However, from the perusal of record, it unveiled that no sugarcane crop is found mentioned in the site plan (Exh.PH). We are not oblivious of the fact that generally site plan cannot be used to contradict a witness, however, if it is proved to have been prepared on the pointing out of an eyewitness, there is no reason to brush it aside. In the instant case, Munir Ahmad (PW.3) admitted that the site plan was prepared on his pointing out.
12. While embarking upon the motive, it is found to have been canvassed as a previous incident having taken place one year prior to the occurrence, during which nose of Nasarullah (appellant) was cut by the deceased.
Admittedly , except oral assertion, no supporting material was brought on record to prove the motive. Neither any medical report of Nasarullah (appellant) was placed on record nor any criminal case was registered in this regard.
So much so, that Munir Ahmad (PW.3) admitted during cross-examination that he has no knowledge whether the nose was chopped of f or not. For reference sake, a portion from his cross-examination is referred hereunder:- "As per my knowledge, I do not know whether said injury was chopping of f nose or not. "
Even Altaf Hussain S.I (PW.9) admitted during cross-examination that he was not provided with any material to strengthen the projected motive. To be precise, though chopping of nose is a serious accusation, however , no case was registered regarding this occurrence. In such circumstances, we have no other option but to disbelieve the motive described by the prosecution.
13. In order to look for some support to the ocular account narrated by chance witnesses, we have pondered upon the medical evidence in detail. It is noticed that the autopsy of deceased was condu cted by Dr. Ghazanfar Shafique (PW.5) at about 4:00 p.m. on 04.07.2012. According to doctor, the duration between death and postmortem was about 12-hours and till that time rigor mortis had developed. It needs no elaboration that afore-mentioned duration does not coincide with the time of occurrence. Now the question arises that whether the opinion of the doctor can be given preference over the testimony of an eyewitness. In our considered view, the medical officer in a case of hurt or homicidal death primarily, submits his humble opinion for enabling the court to find out truth from the jumble of relevant and irrelevant facts. The tale of crime sometimes is narrated by truthful witnesses and on occasions by dishonest persons. A medical officer indeed appears in the dock not to depose against or in favour of contestants but to lift the veil from the truth through his expertise for enabling the court to do complete justice. If the detail of crime furnished by the eyewitnesses is surrounded in doubts, there is no reason for a court to extract truth through the tool of expert evidence. However, if upon an examination the report of an expert is slipshod, inadequate, cryptic or runs contrary to the medical jurisprudence, the court has to form its own opinion. To be precise, for attaining credence, the evidence of an expert must fulfill criteria laid down by Dr.B.R. Sharma in Chapter-4 of his book Forensic Science in Criminal Investigation and Trials which for reference sake is being reproduced as under:- "(i). The expert must be within a recognized field of expertise.
(ii). The evidence must be based on reliable principles, and (iii). The expert must be qualified in that discipline. "
Needless to mention here that the medical evidence in this case was furnished by a medical professional, thus befits to the afore -mentioned requirement, hence can be used for extracting truth. Though the deposition of Dr. Ghazanfar Shafique (PW.5) does not support the prosecution case, however , in order to do complete justice, we have peeped through the respective book s on medical jurisprudence for ascertainin g the correctness of his opinion.
Before proceeding any further , it appears to be in fitness of things to mention here that rigor mortis is a term which stands for the stiffness of voluntary and involuntary muscles in human body after death. It starts within 2 to 4 hours of death and fully develops in about 12-hours in temperate climate. Similarly , the reverse process with which rigor mortis disappears is called algor mortis . In support of duration required to develop rigor mortis , an extract from Taylor 's Principles and Practice of Medical Jurisprudence , is being referred hereunder:- "In sudden natural deaths occurring in a temperate climate during average seasonal conditions rigor mortis usually commences within 2 to 4 hours of death. It reaches a peak in about 12 hours and starts to disappear after another 12 hours. The cadaver becoming limp some 36 hours after death."
Likewise, Dr. S. Siddiq Husain in Chapter-V of his book "Forensic Medicine and Toxicology, observed that in temperate climate the rigor mortis completes in 8 to 12 hours. Similarly, William Carroll in his research article titled as "An Examination of Muscle Function", mentioned similar duration for rigor mortis to develop.
In the aftermath of above-discussion, we are swayed to hold that time of occurrence projected by the eyewitnesses is not free from doubt. This aspect coupled with the fact that Munir Ahmad (PW.3) suppressed the working hours of his deceased brother travelled miles in proving that the incident in question took place either late in night or in the earlier hours of morning and remained un-witnessed. Keeping in view the afore-mentioned facts, it will not be out of context to place reliance upon the observation of Hon'ble Supreme Court of Pakistan expressed in the case of Shahzad T anveer v . The State (2012 SCMR 172 ) which is as under:- "The medical evidence can be analyzed from another angle. In the opinion of the doctor the time between the death and post mortem examination was 6 to 12 hours. She further opin ed that the rigor mortis starts after two hours of the death in the month of September and it is completed within 12 hours. In the instant case the rigor mortis was also completed in the dead body . She also opined that time between death and post mortem might be 14 hours. "
14. We have also given a considered thought to the recovery of .12 bore pistol (P.3) and hatchet (P.2) effected from Nasarullah and Amanullah (appellants) respectively . It is noticed that though a crime empty was secured from crime scene during spot inspection, however, it was not found wedded with .12 bore pistol (P.3) by PFSA vide report (Exh.PM). Similarly , according to PFSA report (Exh.PL), the hatchet (P.2) was not having any human blood stains upon it. So far as, the hatchet (P.1) recovered at the behest of Asmatullah (since acquitted), it is found not to have been dispatched to PFSA for examination.
15. The resume of above discussion is to the effect that the FIR (Exh.PD/1) appears not to have been registered at the time mentioned in its relevant column; though the dead body was dispatched to hospital at 10:30 a.m., however, even then the autopsy was conducted at about 4:00 p.m. and apparently such delay was consumed in procuring the attendance of eyewitnesses and knitting a story; the ocular account is found to have been furnished by chance witnesses and their presence at the spot is negated from attending circumstances; the time of occurrence provided by the eyewitnesses stands negated from the rigor mortis; the ocular account remained uncorroborated from failure of prosecution to prove motive and inconsequential recovery of weapons. All these factors cumulatively are giving rise to reasonable doubt, the benefit of which ought to be extended to appellants. Resultantly, we allow Criminal Appeal No.113-J of 2015/BWP while giving benefit of doubt in favour of Nasarullah and Amanullah (appellants) and set-aside their conviction and sentence and in consequence thereof they stand acquitted of the charges.
Nasarullah (appellant) is in custody; be released forthwith if not required to be detained in any other criminal case, whereas Amanullah (appellant) is on bail and as such his sureties stand discharged from bail bonds.
16. For the foregoing reasons, Criminal Appeal No.264 of 2015/BWP against the acquittal of Asmatullah (respondent No.1) stands dismissed.
17. Resultantly , Murder Reference No.17 of 2015/BWP is answered in the NEGA TIVE and death sentence awarded to Nasarullah (convict) is NOT CONFIRMED .