Ch. Abdul Aziz, J. Shabbir Ahmad and Muhammad Javed (appellants) involved in case FIR No.98 /2014 dated 08.04.2014 registered under sections 302,324,337-A (i),337-F (i) & 34 PPC at Police Station Shehar Farid, Tehsil Chishtian, were tried by learned Additiona l Sessions Judge, Chishtian. The learned trial court vide judgment dated 30.03.2016 proceeded to convict and sentence both the appellants in the following terms:-
1. Shabbir Ahmad (appellant)
Under section 302 (b) PPC to suffer death sentence for committing Qatl-i-amd of Safarish Ali. He was also directed to pay compensation of Rs.200,000/- under section 544-A, Cr.P.C. to the legal heirs of the deceased and in default whereof to undergo SI for six months.
2. Muhammad Javed (appellant)
Under section 324 PPC to suffer rigorous imprisonment for 10 years with fine of Rs.50,000/- and in default whereof to further undergo three months SI. He was also directed to pay Rs.20,000/- as compensation to Muhammad Ali injured under section 544-A, Cr.P.C. and in case of non-payment he was directed to further undergo three months SI. Benefit of section 382-B, Cr .P.C. was also extended in favour of Shabbir Ahmad (appellant).
Challenging their conviction and sentence, Shabbir Ahmad and Muhammad Javed (appellants) filed Criminal Appeal No.165 of 2016/BWP and Criminal Appeal No.176 of 2016/BWP respectively, whereas trial court sent reference under section 374, Cr.P.C. which was numbered as Murder Reference No.24 of 2016/BWP, for the confirmation or otherwise of death sentence of Shabbir Ahmad (convict). All these matters are being disposed of through this single judgment.
2. In brief, the case of prosecution as unveiled by complainant Muhammad Ali (PW.1) in FIR (Exh.P A/1) is to the effect that on 08.04.2014 at about 3:15 a.m., he was present in his house; that upon noticing barking of dogs he came outside and saw two persons coming on a motorcycle along with a goat; that while finding them suspicious, he stopped them and in the meanwhile, his son Safarish Ali (deceased) along with Abdul Ghaf far (PW.2) also attracted to the spot; that said two perso ns were identified in the light of torch as Shabbir and Muhammad Javed (appellants); that Shabbir (appellant) fired with his .12 bore repeater at Safarish Ali (deceased), the pallets of which hit him on his forehead, nose, lips and neck; that Shabbir (appellant) again fired and the pallets hit the deceased on his arms, chest and abdomen, who fell on the ground; that Javed fired at the complainant, the pallets of which hit him on his right ear, jaw, throat and chest and he also fell on the ground; that appellants fled away from the spot along with goat; that he and Safarish Ali were shifted to Civil Hospital Chishtian, who were medically examined.
3. The law was set into motion on the statement/Fard Bian (Exh.P A) of Muhammad Ali (PW.1) which he made before Muhammad Siddique Sabri SI (PW.8) in THQ Hospital, Chishtian. He sent Fard Bian (Exh.P A) to the Police Station through Faisal Iqbal 939/C for the registration of formal FIR. Subsequent to the registration of FIR, Muhammad Siddique Sabri SI prepared injury statements of Muhammad Ali and Safarish Ali (Exh.PM & Exh.PN).
After the receipt of permission from Medical Officer, he recorded the statement of Safarish Ali under section 161, Cr.P.C. Subsequently , he visited the place of occurrence and took into possession blood stained earth where Safarish Ali received injuries, vide memo Exh.PG. From the spot, he also secured three crime empties of .12 bore (P.8/1-3) and torch (P.1) vide memos Exh.PH & Exh.PB respectively . On the same day i.e. 08.04.2019 at about 5:20 p.m. he received information regarding the death of Safarish Ali. Then he visited THQ Hospital Chishtian, prepared injury statement (Exh.PS), inquest report (Exh.PS/1) and got conducted the autopsy of Safarish Ali (deceased). He arrested Shabbir Ahmad and Muhammad Javed (appellants) on 22.04.2014. The appellants, on 28.04.2014 made separate disclosures and in pursuance thereof led to the recovery of pump-action .12 bore (P.5) and repeater .12 bore (P.7) which were taken into possession vide memos Exh.PD and Exh.PF respectively .
Shabbir Ahmad (appellant) also got recovered motorcycle (P.6) which was taken into possession vide memo Exh.PE.
4. The prosecution in order to prove its case against appellants produced nine PWs including Muhammad Ali (PW.1) and Abdul Ghaffar (PW.2) who narrated the ocular account, Dr.Muhammad Ahmad (PW.9) who furnished the medical evidence and Muhammad Siddique SI (P.8) who investigated the case. The remaining PWs more or less were formal in nature.
5. Dr. Muhammad Ahmad (PW.9), on 08.04.2014 at about 4:40 a.m. conducted the medico legal examination of Muhammad Ali injured and noted the following injuries:- (1). There was lacerated wound on the pinna of right ear i.e. 0.1 x 0.1 cm sq. and skin deep. KUO X-Ray skull and neck.
(2). There was lacerated wound on the right side of lower jaw i.e. 0.1 x 0.1 cam sq. and it was skin deep KUO X- Ray skull.
(3). A punctured wound on right side of neck and there was also a lacerated wound on right side of neck and there was also a lacerated wound of 0.2 x 0.1 cm sq. on the right side of neck. A metallic pellet was palpable and KUO for X-Ray neck.
(4). A lacerated wound of 0.2 x 0.1 cm sq. in the middle of neck i.e. skin deep and metallic pellet was palpable. Also a lacerated wound of 0.2 x 0.1 cm on the left side of neck. KUO for X-Ray neck.
(5). There were even lacerated wounds on the whole chest i.e. 0.2 x 0.1 cm sq. and KUO for X-Ray chests .
Dr. Muhammad Ahmad on the same day at about 4:40 a.m. also medically examin ed Safarish Ali (deceased when he was alive) and observed the following injuries:- (1). There was lacerated wound of 0.1 x 0.1 cm sq. on the left side of forehead and a metallic pellet was palpable and wound was skin deep. KUO X-Ray skull.
(2). There was lacerated wound of 0.1 x 0.1 cm sq. on the tip of nose and metallic pellet was palpable and the wound was skin deep. KUO X-Ray skull.
(3). A lacerated wound of 0.1 x 0.1 cm sq. on left side of upper lip i.e. skin deep and metallic pellet was palpable.
KUO for X-Ray skull.
(4). There were two lacerated wounds of 0.1 x 0.1 cm sq. on the left side of neck and slightly in its middle i.e. skin deep and metallic pellets were palpable. KUO for X-Ray skull with chest.
(5). There were multiple lacerated wound s on both arms i.e. 0.1 x 0.1 sq. and were skin deep and metallic pellets were palpable.
(6). There were multiple lacerated wounds on the chest i.e. 0.1 x 0.1 cm sq. and some were 0.2 x 0.1 cm sq.
Breath sounds were normal, chest movement were equal on both sides. KUO for X-Ray chest and referred to BVH, Bahawalpur .
(7). There were multiple wounds on abdomen i.e. 0.2 x 0.1 cm. Abdomen soft non tender . KUO for abdomen X-Ray .
Dr. Muhammad Ahmad (PW.9) on 08.04.2014 at about 11:00 p.m. conducte d the autopsy of Safarish Ali (deceased) and noted the following injuries:-
(1) There were lacerated wounds on right side of forehead, tip of nose on upper lip and in the middle of the neck and also multiple lacerated wounds of 0.2 x 0.1 cm sq. on the both arms and on the chest and abdomen. Wounds on forehead, nose, upper lip and neck were superficial and skin deep. Wounds on abdomen were also skin deep and superficial. Wounds on chest were deep and approaching to lungs and heart and rupturing the lungs and there was punctured wound in heart i.e. 0.3 x 0.1 cm sq. on the left side of heart.
The doctor gave the following opinion:- "In my opinion multiple injuries on chest wall lead to rupture of lungs and puncture of apex of heart leading to haemorrhage, leading to shock and leadi ng to death. Injury No.6 is sufficient to cause death in ordinary course of nature and all injuries were ante mortem caused by firearm weapon. Probable time that lapsed between injuries and death within 12 hours and between death and postmortem within 12 hours."
6. After conclusion of prosecution evidence, the learned trial court examined Shabbir Ahmad and Muhammad Javed (appellants) under section 342, Cr.P.C. who in response to question "why this case was against you" made the following similar reply:- "I am innocent. In fact I am resident of Chak No.12/G Boonga Baloochan 15/16 miles distant to Basti Mubarak Pur.
I along with Shabbir co-accused do labour in the agricultural land of Sahibzada Faiz Rasool. In the night of occurrence we were sleeping at Dera situated in said land. Complainant party is not known to me. I have no relationship business and even any friendship in Basti Mubarak Pur. I have no grudge or enmity with the complainant party .
In fact, in the night of occurrence some unknown thieves were chased by the complainant, deceased and other persons of locality i.e. Basti Mubarak Pur during which complainant party received distant fire shots in the darkness of night. On the following morning, complainant party called a famous foot tracer namely Allah Ditta s/o Bahawal Khan, Caste Joyia, R/o Bhagtay Wala and constituted a Wahar party. The said Wahar party headed by above said Allah Ditta foot tracer followed/traced the foot prints of thieves which were passing by 3-4 acres of the tube well of Sahibzada Faiz Rasool. Allah Ditta the foot tracer was continuously following the foot prints, meanwhile, the police party conducted raid at the Dera of Sahibzada Faiz Rasool where I along with co-accused Shabbir were sleeping. Local police without any reason started beating us. People of locality also attracted there and they also beaten the police party. Siddique Sabri SI got annoyed and arrested me and Shabbir from the said tube well, kept us in illegal confinement and showed our arrest in police record later on. Allah Ditta foot tracer compared our foot prints with the foot prints followed by them and the foot prints preserved at the place of occurrence in presence of the complainant party and police. After comparison the foot tracer Allah Ditta opined that we were not involved in the alleged occurrence but local police only in order to fulfill their grudge of beating at tube well of Sahibzada Faiz Rasool assured complainant party regarding our involvement in the alleged occurrence, as alleged occurrence of dark night, for this reason complainant could not identify the accused persons, so, complainant while believing the assertion of local police falsely nominated me and my co-accused Muhammad Shabbir in FIR. Rapt Roznamcha Waqiati was kept under abeyance and after our arrest from the said tube well FIR was got registered against us."
Likewise, while answering to question "why the PWs have deposed against you", both the appellants took the following stance:- "P.Ws are closely related with the complainant as well as with deceased. For this reason they deposed falsely against me."
The appellants did not make statement under section 340 (2), Cr.P.C., however , produced Allah Ditta (DW.1) 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 the appellants that the case in hand relates to the night time occurrence wherein the question of mistaken identification is always there; that since the prosecution failed to satisfactorily explain the existence of light at the spot, hence, its benefit ought to be extended to the appellants; that though one of the eyewitnesses, namely , Muhammad Ali received injuries during occurrence, however , perusal of the medical record reveals that the same are dubious in nature; that as per record deceased Safarash Ali was brought to the hospital in injured condition and though his statement was recorded by the police but was not brought on record due to the reason that apparently he was not supporting the case of prosecution; that the ocular account stands contradicted by the medical evidence thus is not worthy of any reliance; that the allegation of stealing goat ascribed to the appellants remained unproved during investigation as well as at trial stage; that though multiple circumstances giving rise to reasonable doubt proving innocence of the appellants were available on record, however met deaf ear response from the learned trial court. With these submissions, it was urged that the appellants are entitled to be acquitted from the case.
8. On the other hand, learned Deputy Prosecutor General vociferously argued that the case is emerging from a spontaneously registered FIR wherein both the appellants are nominated along with their respective roles performed during trial; that the eyewitnesses of the occurrence besides being residents of the same locality were also not having any enmity with the appellants; that the statements of the eyewitnesses were fully supported by the medical evidence furnished by Dr. Muhammad Ahmad; that the corroboration, if any can well be sought from the recovery of guns effected from both the appellants which were found wedded by PFSA with the crime empties secured from the spot; that no doubt the occurrence took place in odd hours of the night, however the witnesses reasonably explained source of light by saying that they saw it in the torchlight and that since the prosecution successfully proved its case against the appellants, hence conviction awarded to the appellants needs no interference from this Court.
9. Arguments heard. Record perused.
10. The occurrence which formed basis of the instant case took place on 08.04.2014 at about 3:15 a.m. in a vicinity known as Mauza Mubarak situated 10-kil ometers from Police Station Shehar Farid , District Bahawalnagar . During this incident, after receipt of firearm injuries, Muhammad Ali (PW.1) got injured, whereas his son Safarish Ali lost his life. The accusation of committing the crime in question was pointed towards two persons, namely Shabbir Ahmad and Muhammad Javed (appellants). A bird's eye view of the record reveals that the case of prosecution is mainly resting upon the ocular account narrated by Muhammad Ali and Abdul Ghaf far (PW.1 & PW.2), medical evidence furnished by Dr. Muhammad Ahmad (PW.9), recovery of guns (P.5 & P.7) effected from the appellants and the positive report of PFSA according to which recovered weapons were found wedded with the crime empties secured from the spot.
11. While dilating upon the ocular account, it is found to have been provided by two eyewitnesses and one of them, namely , Muhammad Ali (PW.1) acclaimed to have received firearm injuries during the occurrence. It was pressed hard by the prosecution that injuries on the person of Muhammad Ali (PW.1) are conclusive proof of his presence at the spot thus his testimony is destined to be accepted, even without scrutinizing it on the touchstone of corroboration. We feel it essential to mention here that though the firearm injuries on the person of Muhammad Ali (PW.1) indicate his presence at the spot, however are not conclusive proof of what he deposed before the court is true. As per settled principles laid down for appraisal of evidence, even the testimony of an injured witness is to be subjected to scrutiny, for making it basis of conviction. While holding so, we are guided by the observation of Hon'ble Supreme Court of Pakistan expressed in the case of Nazir Ahmad v. Muhammad Iqbal and another (2011 SCMR 527), which is as under:- "It is settled law that injuries of P.W. are only indication of his presence at the spot but are not affirmative proof of his credibility and truth. "
12. In the wake of what has been discussed above, we carefully scanned the record of the case and have found that the crime in question took place in the dark hours of night at about 3:15 a.m. According to the prosecution case, Muhammad Ali (PW.1) was asleep in his house and woke up at the eventful time after noticing the voice of barking dogs. He came out of the house and saw a motorcycle coming from a distance of one square from Eastern side which was statedly boarded by both the parties who had loaded stolen goat upon it. It was canvassed by the prosecution witnesses that both the perpe trators were having chequered criminal track record of being involved in numerous criminal cases thus when signaled to stop both of them fired from their respective weapons, leading to the unfortunate death of Safarish Ali and injuries to Muhammad Ali. It is important to mention here that neither during investigation any material was secured nor at trial any evidence was led from which it may allude that on the eventful night, any goat was stolen from the vicinity . Likewise, even after the perusal of evidence recorded before the trial court, we have not come across an iota of material from which it may be held that two appellants were habitual thieves. The moot point in our view is the identification of both the appellants. Though in crime report (Exh.P A), it is found mentioned that veil was lifted from the identification of both the appellants through torchlight, however , the frailty of such claim was probably felt by the witnesses as well and changed their stance during trial by saying that it was so done in the light of bulb and torch. Admittedly , the existence of electricity bulb at the scene of occurrence is not found mentioned in the site plan (Exh.PK). As regards, the torch as source of light, to identify the culprits of crime in night time occurre nce, it is always regarded as weak in nature. Reliance in this regard can be placed upon the case of Mehr Ali and others v. The State (1968 SCMR 161) wherein the Hon'ble Supreme Court of Pakistan observed as under:- "... .identification in a dark night based upon momentary glimpse in the light of the torch should be looked into carefully and cautiously ."
If any further reference in this context is needed that can be made to the cases reported as Mst. Amiran and others v. The State and others (2017 PCr.LJ 1591), Abdul Rahim v. Ali Bux and 4 others (2017 PCr.LJ 228) and Saddam Hussain Shambozai Brohi and 2 others v . The State (2017 YLR 1667 )
13. We have also taken note of the fact that Safarish Ali (deceased) was brough t to THQ Hospital, Chishtian at about 4:40 a.m. in injured condition. Investigating Officer of the case, namely , Muhammad Siddique (PW.8) after his arrival in THQ Hospital, Chishtian moved an application (Exh.PQ) and raised a query from the medical officer, whether Safarish Ali was in a condition to make statement or not. The perusal of application (Exh.PQ) reveals that it contains endorsement of medical officer which is to the effect that Safarish Ali is answering the questions. No clue is found from the recital of whole of prosecution evidence as to what was the tale of occurrence put forth by Safarish Ali (deceased) before police. Keeping in view the fact that Safarish Ali was in receipt of multiple firearm injures, hence, his statement should have been recorded in terms of Chapter-25 Rule 21 of Police Rules, 1934 so as to be used under Article 46 of Qanun-e-Shahadat Order , 1984 as dying declaration. From the failure of prosecution to bring on record the statement of Safarish Ali (deceased) as dying declaration, we have arrived at an irresistible conclusion that since it was not in line with the story of crime mentioned in the FIR, hence was withheld.
It needs no scholarly discussion to highlight that the evidence of dying declaration could have provided ample strength to the case of prosecution. The foregoing opinion formed by us from the afore-mentioned omission of prosecution is in term of Article 29 Illustration (g) of QSO, 1984 which for ready reference is being reproduced hereunder:-
129. Court may presume existence of certain facts . The Court may presume the existence of any fact, which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and the public and private business, in their relation to the facts of the particular case.
Illustrations The court may presume:
(g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.
The Hon'ble Supreme Court of Pakistan in the case of Muhammad Rafique, etc. v. State & others (PLJ 2011 SC 191) held as under :- ".....that if any party withholds the best piece of evidence then it can fairly be presumed that the party had some sinister motive behind it. The presumption under Article 129 (g) of Qanun-e-Shahadat Order can fairly be drawn that if PW Amir Ali would have been examined, his evidence would have been unfavourable to the prosecution."
14. We have also pondered upon the detail of occurrence provided by both the eyewitnesses and have noticed that it stands negated from the medical evidence. According to Muhammad Ali (PW.1) he received injuries of .12 bore cartridge from a distance of 12 to 13 feet. The other eyewitness of the occurrence, namely , Abdul Ghaf far (PW.2) also deposed on the same lines and described the distance between the assailants and the victims as 12-feet. It unfolds from the deposition of Dr.Muhammad Ahmad (PW.9) that though Muhammad Ali (PW.1) was in receipt of multiple pallet injuries, however , all of them were only skin deep and none of them penetrated deep into his body .
So far as, Safarish Ali (deceased) is concerned, injuries No.1 to 5 on his person were also of similar nature and observed by Dr. Muhammad Ahmad (PW.9) as skin deep only. Though injuries No.6 & 7 were observed by the doctor to be multiple wounds having made ingress into the body cavity of Safarish Ali but we will like to discuss their effect on the prosecution case in the latter part of judgment. We have forme d an inexorable conclusion after taking into account skin deep firearm injuries of both the victims that .12 bore shots were fired from a considerable distance. It needs no mention that had these injuries been caused from the distance of 12/13 feet, then the pallets should have made ingress in the bodies of both the victims. However , in the instan t case, the dimension of solitary firearm entry wound on the chest of Safarish Ali (deceased) was .9 x .9 cm as stated by Dr. Muhammad Anwar (PW.1). The pattern of injury caused through .12 bore gun from various distances was dilated in detail by Dr.S. Siddiq Husain in "A TEXT BOOK OF FORENSIC MEDICINE AND T OXICOLOGY" and opined as under:- "In these, cartridges, with lead shots are fired. Ef fects produced will vary according to the distance from which fired.
1. If muzzle within a few inches of body--whole charge of shot, enters as one masse, followed by wad and highly compressed gases. Area around wound, clothing and skin is burnt, hair singed also blackening and tattooing of skin around the wound, which parchmentises after death. If there is thick clothing on the body, then the skin around may not be blackened and tattooed. The deeper tissues are extensively lacerated and shattered. If weapon is pressed tightly against skin above signs outside may be absent.
2. At about one foot---the shot will enter in one mass, but the gases will no longer follow . The wounds will correspond to the bore of the gun, the blackening, scorching and tattooing will be apparent.
3. If distance one yard--The mass of shot begins to spread. The wound is about one inch or slightly more and around the main wound, there may be a few scattered punctures by shot that have separated from the mass. Some blackening and tattooing may be present.
4. At two yards--The central aperture is surrounded by separate openings, in an area of about 2 diameter , by the pellets that have separated from the main mass. Skin is not blackened but is tattooed to some extent.
5. At four yards--the charge beings to disperse more. The wound is about 5'- 8" in diameter . No blackening or burning .
15. We have also given a considered thought to the multiple pallet wounds on the body of deceased highlighted by Dr. Muhammad Ahmad (PW.9) under head of injuries No.6 & 7. These pallets, besides entering into the abdominal cavity of Safarish Ali (deceased) also ruptured left lung, heart and other internal organs. From this aspect, it can inevitably be held that injuries of Safarish Ali (deceased) were outcome of two independent shots, out of whom one was fired from a long distance and the other relatively from close margin. Otherwise, all the firearm injuries on the body of Safarish Ali (deceased) should have been of alike nature and kind. We have also taken note of the fact that the incident occurred in the month of April and the deceased was not wearing some winter clothing as is evident from the statement of Muhammad Yasin (PW.3) who is the witness of memo relating to the last worn clothes. As a necessary corollary , even it cannot be presumed that the difference in the nature of entry wounds was due to some jacket etc. From the facts mentioned in the instant and preceding paragraphs, it can conclusively be held that the ocular account is belied by the medical evidence. Now the question arises that if the ocular account and the medical evidence is at variance with each other , whether its benefit can be exten ded to the appellant or not. The answer to this query lies in the observatio n of Hon'ble Supreme Court of Pakistan expressed in the case of Abdul Jabbar and another v . The State (2019 SCMR 129 ) which is as under: - "It is the settled principle of law that once a single loophole is observed in a case presented by the prosecution much less glaring conflict in the ocular account and medical evidence or for that matter where presence of eye- witnesses is not free from doubt, the benefit of such loophole/lacuna in the prosecution case automatically goes in favour of an accused."
16. We will also like to mention here that the appellants and the victims had no history of hostility between them. It can be extracted from the prosecution case that when Muhammad Ali (PW.1) intercepted, the appellants were boarded on a motorcycle having in their possession a stolen goat. We have already mentioned above that no material as such was brought on record which may even remotely insinuate that on the eventful night any goat from the vicinity was stolen. This is also a matter of record that no person came forward from the locality with the claim of having lost a goat in some theft occurrence on the fateful night. We have further noted that Muhammad Ali (PW.1) came out of his house upon the barking of dogs and at that time motorcycle of the appellants was at a distance of one square. Such narration of facts sounds no logic as to how and why the dogs started barking when the motorcycle of the assailants was at such a considerable distance. In these circumstances, we have no hesitation to hold that the occurrence never took place in the manner it is canvassed by the prosecution witnesses.
To be precise, in our view, the prosecutio n has failed to prove the guilt of the appellants beyond scintilla of doubt, thus conviction awarded to them is not sustainable.
17. In the light of what has been discussed above, we allow Criminal Appeals No.165 & 176 of 2016/BWP , acquit Shabbir Ahmad and Muhammad Javed (appellants) of the charge while giving them benefit of doubt and in consequence whereof, set aside their conviction and sentence. They are in custody; be released forthwith if not required to be detained in any other criminal case.
18. Resultantly , Murder Reference No.24 of 2016/BWP is answered in the NEGA TIVE and death sentence awarded to Shabbir Ahmad (convict) is NOT CONFIRMED .