RAJA SHAHID MEHMOOD ABBASI, J.---Nazakat Ali son of Abdul Ghaffar Khan, appellant was involved in case FIR No.352 dated 17-10-2013, under section 302, P.P.C., registered at Police Station Pindigheb and was tried by learned Additional Sessions Judge, Pindigheb, Attock. The learned trial court seized, with the matter, in terms of judgment dated 23-12-2014 convicted and sentenced the appellant in the following terms:- Under section 302(b), P.P.C., sentenced to death on two counts and to pay compensation of Rs.1,00,000/- each under section 544-A, Cr.P.C. to the legal heirs of deceased persons or in default thereof to further undergo S.I for one year.
Feeling aggrieved by the judgment of the learned trial court, the appellant has assailed his conviction and sentence through filing Criminal Appeal No. 04-J of 2015 while the learned trial court forwarded Murder Reference No. 01 of 2015 for confirmation of sentence of death inflicted upon the convict in terms of section 374, Cr.P.C. As both the matters are arising out of one and the same judgment of the learned trial court, therefore, these are being disposed off through this single judgment.
2. The prosecution story as disclosed in the complaint (Ex.PA) recorded on the statement of Muhammad Saleem, complainant (PW.11) are that the complainant and his younger brothers namely Muhammad Naeem and Muhammad Nadeem were resident of Village Utran, Tehsil Pindigheb, District Attock. Muhammad Naeem and Muhammad Nadeem went out of their house on 17-10-2013 before "Maghrib" towards the land owned by one Zalik. After hearing the fire shot, complainant went out after his brothers and saw his brothers smeared in a pool of blood and each of them had sustained one fire shot respectively on their chest. Both Muhammad Naeem and Muhammad Nadeem succumbed to the injuries. The complainant shows his suspicion that his brothers had enmity with Muhammad Saleem and Muhammad Shabbir as earlier he had given the hand of his sister to Mazhar son of Gull Muhammad to which he refused lateron for which Mazhar had grudge so he with connivance with his friend Muhammad Naseer, Muhammad Saleem and Muhammad Bashir, by making 30 bore pistol fire shots murdered his brothers. Hence, the crime report.
Motive behind the occurrence as disclosed in the crime report was that the accused had suspicion that Muhammad Nadeem (deceased) had illicit relation with his sister.
3. After completion of investigation, the challan was prepared and submitted before the trial court.
The trial court after observing codal formalities, as provided under the Code of Criminal Procedure, 1898 framed charge against the appellant to which he pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution produced as many as twelve witnesses during the trial.
Muhammad Saleem (PW.11) was complainant of the case. Muhammad Mumtaz (PW.10) was the witness of last seen. Ishfaq Ameen 599/C (PW.3) was the witness of recovery of weapon of offence i.e. pistol .30 bore along with five live bullets and two broken phones, recovered at the instance of the appellant/accused vide recovery memos (Ex.PB and Ex.PC) on 10-11-2013. Bashir Ahmad Awan, draftsman appeared as (PW.4), who prepared site plan of the place of occurrence (Ex.PD, and Ex.PD/1 to Ex.PD/3). Investigation of the case was conducted by Zafar Iqbal, SI (PW.12), who stated about various steps taken by him during investigation of the case. The medical evidence was furnished by Doctor Imran Ali (PW.6), who conducted post mortem examination on the dead body of deceased Muhammad Nadeem and found following injuries on his body:- INJURIES
1. An entry wound of 1 cm x 0.5cm on left side of the chest more or less an axillary plane with slighter blackening with oozing of blood was present.
2. An exit wound of 2 cm x 1 cm was present on the right side front chest just lateral to mid sternal line with slight bleeding.
He opined that most probable cause of death considering the injuries was massive blood loss and immediate circulatory collapse (Returned heart) resulting in haemorrhagic shock with subsequent cardiopulmonary arrest. All injuries were ante mortem and were not compatible with life and were sufficient to cause death in short period of time with normal course of life under ordinary circumstances. The injuries were caused by firearm. The probable time elapsed between injuries and the death was 10 to 15 minutes and between death and postmortem was 7 to 8 hours.
The said Doctor (PW.6) also conducted autopsy on the dead body of deceased Muhammad Naeem and noted following injuries on his body:- INJURIES
1. An entry wound of 1 cm x 0.5 cm on the front chest right side just lateral to the mid sternal line over the right nipple with slight blackening and oozing of blood.
2. An exit wound of 1.5 cm x 0.8 cm on the almost back-side of chest, left side just lateral to mid axillary line (lateroposteriorly) with oozing of blood.
He opined that most probable cause of death considering the injuries was massive blood loss and immediate circulatory collapse (Ruptured heart) resulting in haemorrhagic shock with subsequent cardiopulmonary arrest. All injuries were ante mortem and were not compatible with life and were sufficient to cause death in short period of time with normal course of life under ordinary circumstances. The injuries were caused by firearm weapons. The probable time elapsed between injuries and death was less than 10 minutes and between death and postmortem was 7 to 8 hours.
The prosecution gave up Zafar Ali Shah, ASI, Malik Nasir, Mehr Khan, Malik Sadiq and Sher Khan being unnecessary and after tendering in evidence report of Forensic Science Agency, Lahore (Ex.PV) and report of Serologist (Ex.PW) closed its evidence.
5. The statement of the appellant under section 342, Cr.P.C. was recorded. He refuted the allegations leveled against him and professed his innocence. While answering to a question that "why this case against you and why the PWs had deposed against you?, he stated as under:- "The deceased and complainant were of bad characters. They , along with other family members were expelled from their native village at District Minawali. After coming in the village Utran, they did not leave there bad habits and they often used to stand in the streets of village and used to tease and make shouting on the young girls of the village. They tried to commit rape with a lady teacher of government girls school when she was in the way and was coming for duty from Pindigheb to village Utran. During identification parade in village, deceased persons and complainant were nominated and pointed out by that lady teacher. In "Jirgah" of the whole village, the deceased persons and complainant were charged for chasing the young girls of village and also for wandering. The one deceased was expelled from the village for five years and other deceased and the complainant were bound down not to stand in the streets of village unnecessarily and for wandering. Proceeding of 'Jirgah' is Ex. P12, The complainant and deceased were most unwanted personalities of the whole village Utran. They have enmity with four other nominated accused of FIR. After taking compensation from actual accused, they have given my name in this case on 01-11-2013 when I was arrested by the police from Rawalpindi. The complainant's dispute was with my uncle Munsab Khan and with whole village. Now the complainant wants to snatch my house in compensation from me because the complainant party has no house in the village. I was made the scapegoat in the case."
The appellant neither opted to appear as his own witness under section 340(2) of the Code of Criminal Procedure, 1898 in disproof of the allegations levelled against him, however, produced some documents (DA to DD) in his defence.
6. After hearing the arguments advanced by the learned counsel appearing on behalf of both the parties, the learned trial court, while evaluating the evidence available on record found version of the prosecution proved beyond shadow of reasonable doubt, resulting into conviction of the appellant in the above stated terms.
7. Canvassing acquittal, learned counsel for the appellant, in support of this appeal contends that it was an unseen occurrence and admittedly was appellant was not named accused in the crime report; that there is no direct evidence against the appellant and prosecution case is based on circumstantial evidence; that the statement of Muhammad Saleem, complainant (PW.11), who supported the contents of complaint (Ex.PA) is not reliable for simple reason that he was an interested and biased witness; that the learned trial court has based its finding On mere presumption; that the evidence of last seen is also lacking probity; that nothing was recovered from the possession of the appellant during the investigation and the recoveries are planted one; that medical evidence is not in consonance with the ocular testimony of prosecution witnesses; that there are certain glaring contradictions and inconsistencies in the evidence of prosecution witnesses, which are not noticed by the trial court resulting into in serious miscarriage of justice that the prosecution has failed to prove its case against the appellant beyond any shadow of doubt and that the appellant is entitled for acquittal. The learned counsel for the appellant placed reliance on Muhammad Jamil v. Muhammad Akram and another (2009 SCM R 120).
8. On the other hand, while opposing this appeal, learned Deputy District Public Prosecutor representing the State assisted by learned counsel for the complainant contended that there was no enmity between the appellant and prosecution witnesses of this case to falsely deposed against him. That sufficient incriminating evidence was available on record, in the form of statements of prosecution witnesses coupled with the medical evidence; that weapon of offence recovered from the appellant/accused connects him with the commission of crime; that medical evidence is in consonance with the last seen evidence; that the prosecution has fully proved its case against the appellant beyond any shadow of doubt, therefore, the appeal filed by the appellant against his conviction and sentence may be dismissed and murder reference may be answered in affirmative. In support of his contentions, learned ADPP has placed reliance on Khursheed v. The State (PLD 1996 SC 305).
9. We have heard the arguments advanced from both the sides and perused the record with the able assistance of learned counsel for the appellant, learned Deputy District Public Prosecutor assisted by learned counsel for the complainant.
10. We have noted that no direct evidence is available with the prosecution to prove its case against the appellant, which mainly hinges upon circumstantial evidence, therefore, utmost care and caution is required to reach at a just decision. It is settled by now that in such like case, prosecution is duty bound to link each circumstance to the other in a manner that it should form such a continuous chain of circumstances firmly connecting the accused with the alleged offence.
In this regard guidance has been sought from the judgment of learned apex court of the country reported as Ibrahim and others v. The State (2009 SCM R 407) and Muhammad Husssa in v. The State (2011 SCM R 1127). Keeping in view the guidelines given in the above cited precedent, we would like to discuss the prosecution evidence produced in this case.
In this unfortunate incident, two real brothers of the complainant namely Muhammad Naeem and Muhammad Nadeem were gunned down at the time of Maghrib on 17-10-2013. On the statement (Ex.PA) of the complainant Muhammad Saleem, crime report (Ex.PA/1) was registered. Initially, Mazhar, Muhammad Naseer, Muhammad Saleem, Muhammad Shabbir were nominated in the crime report but the name of the appellant reflects nowhere in the said crime report. Subsequently, said nominated accused were declared innocent and on 18-10-2013, the appellant was nominated by the complainant vide application (Ex.PM). It is not disputed that the circumstances in which Naeem and Nadeem, real brothers of complainant were shot at had not been seen by the complainant Muhammad Saleem (PW.11) and he had been attracted at the place of occurrence after hearing reports of fire. It is also not disputed that the complainant had not seen the appellant firing at the deceased. Muhammad Saleem, complainant (PW.11) had stated before the police in his statement recorded under section 154, Cr.P.C. that he had heard the reports of fire at a time when he was available in his house. He has categorically mentioned the motive against the accused Mazhar, Muhammad Naseer, Muhammad Saleem, Muhammad Shabbir but as observed above said accused were declared innocent. The prosecution case against Nazakat Ali, present appellant is entirely structured upon the evidence of last seen adduced by Muhammad Mumtaz, paternal uncle of deceased persons (PW.10); his case is that on 17-10-2013, he came at the house of his paternal uncle namely Mehar Khan on the occasion of Eid, where friend of Muhammad Nadeem namely Sher Khan was also present. He alongwith Sher Khan prior to half an hour of Maghrib prayer went for call of nature towards southern side, after answering the call of nature when they were coming back towards the house of their uncle namely Mehar, the accused Nazakat was briskly going towards jungle having pistol .30 bore in his right hand. After completion of autopsy proceedings, they informed the complainant the next day i.e. on 18-10-2013 that they saw accused Nazakat Khan while going towards jungle while lashing 30 bore pistol; his statement was recorded by the investigating officer on 18-10-2013 and no reason was cited by him for withholding this most vital information. The statement of this witness, besides being pregnant with dishonest improvements got confronted by the defence suffers from infirmity and improbabilities. During cross examination, he stated that when they reached the house of their uncle they first came across Muhammad Saleem, brother of deceased. Further stated that they heard Maghrib Azan at the house of their uncle where dead bodies were lying. This shows that they reached at the place of occurrence even before the arrival of police and if it was so, why the name of Nazakat, appellant/accused was not mentioned in the crime report, his silence create serious doubt upon his veracity. Admittedly, he was blood related to the deceased persons, it was not an ordinary incident, his two nephews were gunned down withholding such information is mind boggling. So, the evidence furnished by Muhammad Mumtaz (PW.10) is good for nothing. There are other reasons as well to discard his evidence, as this so called evidence of last seen is outside the ambit of proximity in terms of time and space. He even could not mention the exact time when he saw the accused Nazakat Ali going towards jungle having pistol .30 bore in his right hand. According to him prior to half an hour of Maghrib prayer went for call of nature whereas according to the complainant Muhammad Saleem (PW.11) his brothers had gone out of the house 15/20 minutes before Azan-e-Maghrib and after five minutes, he heard the firing. We have also noted that according to this witness, he to attend the call of nature was along with Sher Khan, PW, who was absolutely an independent witness but the prosecution has not examined Sher Khan while treating him as an unnecessary witness. It is also part of record that said witness had been given up with the consent of learned counsel for the complainant, without realizing the fact that he was most important witness as the case mainly rests upon circumstantial evidence only. In these circumstances, an adverse inference as required under Illustration (g) of Article 129 of Qanun-e- Shahadat Order, 1984 can fairly be drawn that had the witness been examined, his evidence would have been unfavourable to the prosecution. Be that as it may, the prosecution tried to corroborate the statement of this witness by leading evidence of complainant that on the same day PWs informed him about the said fact. Moreover, numerous other improvements are observed in the statement of this prosecution witness. These self-negating and contradictory statement of this witness reflect that this witness is not truthful, rather he is deposing an afterthought, fabricated and concocted story just to create incriminating evidence to strengthen the case of un-witnessed occurrence against the appellant.
11. As far as the evidence of recovery of pistol (P.1) at the instance of the appellant and positive report of FSL (Ex.PV) is concerned, we are of the opinion that the same is inconsequential to the prosecution case because of the reason that two crime empties (P.10/1-2) were secured by Zafar Igbal, SI (PW.12) from the place of occurrence on 17-10-2013 and the appellant was arrested on 01- 11-2013. During, the physical remand, on 10-11-2013 at the instance of the appellant pistol (P.1) was recovered but empties were sent to Forensic Science Laboratory on 01-11-2013 i.e. on the day of arrest of appellant. It is, by now, a well settled principle of law that if the crime empty is sent to FSL after the arrest of accused or together with the crime weapon the positive result of said laboratory looses its evidentiary value. Reliance in this respect is placed on Ali Sher and others v. The State (2008 SCM R 707) and Israr Ali v. The State (2007 SCM R 525).
12. So far as the motive part of occurrence is concerned, we have observed that initially in the crime report (Ex.PA/1), the complainant set up motive against accused Mazhar, Muhammad Naseer, Muhammad Saleem, Muhammad Shabbir and subsequently, the complainant in his statement (Ex.PM) disclosed that the accused Nazakat Ali had suspicion that Muhammad Nadeem (deceased) had illicit relation with his sister but the alleged grudge was only an oral assertion.
Admittedly, no previous enmity exists between the parties. No other evidence was produced by the prosecution to substantiate the motive set up by the prosecution and K what actually happened just before the occurrence shrouded in mystery. In this view of matter, we are of the considered opinion that the prosecution remained fail to prove the motive part of the occurrence.
13. Finally, we would like to discuss the medical evidence, brought on record through the statement of Doctor Imran Ali (PW.6), who conducted post mortem examination on the dead bodies of Muhammad Naeem and Muhammad Nadeem and noted firearm on the persons of deceased in post mortem report (Ex.PE and Ex.PF) prepared by the said doctor. Needless to observe that the medical evidence may confirm the ocular evidence with regard to seat of injuries and its duration, nature of injuries and kind of weapon used for causing such injuries but it cannot connect the accused with the commission of crime, uptil and until there is some other evidence, therefore, in circumstances of the case when other evidence is not considered reliable, this piece of evidence is of no avail to the prosecution, guidelines in this respect, can be sought from esteemed judgment of Hon'ble Supreme Court of Pakistan in the case reported as Ghulam Mustafa and another v. State (2009 SCM R 916) wherein the Hon'ble Supreme Court of Pakistan has been pleased to observe that the post mortem report can never be a primary source of evidence for the crime itself but it is only corroborative of the same.
14.As discussed above, there is no direct evidence in this case against the appellant and prosecution case hinges upon circumstantial evidence. No doubt that in a case of circumstantial evidence, so strong evidence is required to connect the accused with the commission of offence, if so, then the accused can only be convicted and even capital punishment can be awarded to him but in the instant case, it is thus, follows that none of the pieces of evidence discussed above, either individually or collectively is compatible with the guilt of the appellant. It would not thus be safe to maintain the finding of conviction on the evidence relied by the prosecution. Reliance is placed on Jaffar Ali v. The State (1998 SCM R 2669) but in the instant case, the prosecution failed to form a complete chain of circumstantial evidence. It is settled principle of law that if one ring (ingredient) of chain is missing then whole evidence would be discarded and prosecution case would fall on ground. From the facts and circumstances narrated above, we are persuaded to hold that the prosecution case is pregnant with major discrepancies creating serious dents in its authenticity and in such like situations it becomes incumbent upon the Court to extend the benefit of doubt in favour of the accused. Reliance is placed on the case of Arif Hussain and another v. The State (1983 SCM R 428), wherein the august Supreme Court of Pakistan had held as under:- "....S.302...Murder---Evidence---Benefit of doubt---Prosecution case not free from doubt--- Charges not brought home to accused in manner required under law---Accused given benefit of doubt and acquitted."
Resultantly, while setting aside the conviction and sentence recorded by the learned trial court in terms of judgment dated 23-12-2014, Crl. Appeal No. 04-J of 2015 tiled by Nazakat Ali, appellant is accepted as a consequence whereof he is ordered to be acquitted of the charge in case FIR No.352 dated 17-10-2013, under section 302, P.P.C., registered at Police Station Pindigheb and directed to be released forthwith, if not required in any other case.
15. Murder Reference No. 01 of 2015 is answered in the NEGATIVE and sentence of death of Nazakat Ali is NOT CONFIRMED.