Anwaarul Haq Panun, J. This single judgment shall decide Murder Reference No.49 of 2016 submitted under Section 374 Cr.P.C by the learned trial Court and Criminal Appeal No.406 of 2016, filed under Section 410 Cr.P.C by the appellant against the judgment dated 30.06.2016 passed in case FIR No.439/2014, dated 24.10.2014, offence under Section 302 PPC, registered at Police Station Mecloed Gunj, District Bahawalnagar by the learned Addl. Sessions Judge, Minchinabad, whereby the appellant has been convicted and sentenced as under:- Under Section 302(b) PPC "Death sentence alongwith Rs.2,00,000/ - as compensation u/s 544-A Cr.P.C. payable to the legal heirs of the deceased or in default thereof, to further undergo S.I. for six months. The compensation amount shall be recoverable as arrears of land revenue."
2. The case of the prosecution as contain ed in written complaint (Exh.PB), on the basis of which, FIR (Exh.,PB/1) was chalked out, reiterated by Muhammad Umar , complainant, resident of Mauza Sharafpur , Tehsil Minchanabad, District Bahawalnagar , while appearing in the Court as (PW -4) is, to the ef fect that:- "On the night of 24-10-2014, I alongwith my younger brother Zahid Hussain deceased of this case, Iftikhar Hussain and Muhammad Nazim PW went to attend Rasm-e-Hina ceremony of Naveed Iqbal Bhandara at Mohallah Gulab Shah, Mecloed Gunj. The host had arranged a stage and a tent was established for this ceremony. My brother Zahid Hussain sat with the groom on a Sofa set. At about 01:00 am, Ali Ahmad accused present in the Court armed with pistol 30 bore alongwith an unknown person came there. They asked my brother to get up from the said Sofa. My brother refused, on which the unknown persons asked Ali Ahmad to shoot my brother and murder him, on which Ali Ahmad accused present in the Court took out his pistol from the `nefa' of his `shalwar' and made straight fire which landed on the back side of head of my brother Zahid Hussain, who after sustaining the fire shot fell on the Sofa while both of the accused persons fled away from the spot. I alongwith other PWs attended my brother but he succumbed to the injuries at the spot. The accused persons had committed the murder of my brother on the instigation of our some opponent. Police reached at the spot and I made statement Exh.PB which was read over to me and I signed the same as token of its correctness. My signature is Exh.PB/1."
3. The investigation was encapsulated into report under section 173 Cr.P.C, which was duly submitted before the learned trial Court, after taking cognizance of the offence, the learned trial Judge after supplying the requisite copies of the statements under Section 265(c) Cr.P.C, charge sheeted the accused, to which he pleaded not guilty, while professing his innocence, claimed trial. The learned trial Judge directed the prosecution to produce its evidence for establishing the charge. The prosecution has produced as many as 10 PWs, in order to prove the charge against the appellant. The medical evidence in the case, has been furnished by Dr. Syed Hasnain, M.O (PW-1), who deposed that on 24.10.2014, while conducting postmortem examination over the dead body of Zahid Hussain, he observed the following injuries:-
1. A lacerated wound about 1 cm in diameter on the posterior side of the skull in the occipital region. Wound track goes inward towards the skull cavity . Blood and brain matter was coming out of the wound edges.
2. A lacerated wound about 1-1/2 cm in diameter with everted margin on the right side of vault of skull. Blood and brain matter was coming out of the wound.
CRANIUM AND SPINAL CORD Scalp was torn on the posterior and lateral side of skull.
Skull bone in the occipital and right temporal region was fracture and pieces of wound were missing from the fracture side. Membranes were damaged. Brain matter was damaged and fresh blood was present in the skull and wound track in the brain.
OPINION :- "In my opinion, the cause of death in this case is the injury No.1 which damaged the brain matter. Injury to the brain resulted in severe bleeding and immediately death occurred. This injury was ante-mortem and caused by firearm and sufficient enough to cause death in normal course of life. Probable time between injury and death was within 15 minutes and between death and post mortem was within 12 hours.
Muhammad Umar , complainant (PW-4) and Iftikhar Hussain (PW-5) have furnish ed ocular account. Muhammad Aslam SI (PW-10), the Investigating Officer of the case, arrested the appellant, recovered pistol 30 bore on his pointing out, took the same into possession through recovery memo (Exh.PE). The evidence of rest of the PWs is formal in nature, therefore, it needs no discussion. The learned Prosecutor gave up the prosecution witnesses namely Shahid Hussain, Aftab Hussain and Muhammad Nazam, and after tendering positive reports of PFSA, Lahore (Exh.PM and Exh.PN) closed the prosecution's evidence. The accused/appellant when examined under Section 342 Cr.P.C, refuted the entire evidence produced by the prosecution and in reply to a question as to why this case against him and why the PWs have deposed against him, replied as under:- "The PWs have deposed against me maliciously in order to extort money from me and while substituting the real culprit. The roznamcha of police statio n was stopped and the case was registered after consultation and deliberation with ulterior motive."
In responding to question have you anything else to say , the accused/appellant replied as under:- "I am innocent. I had not committed the murder of deceased. I had neither any motive nor had any weapon at the time of above detailed ceremony . Many persons of "bradari" of deceased made aerial firing while standing besides the stage as well as from behind the stage while being drunk and watching "Mujra " etc. All of a sudden a fire shot hit the deceased. Instead of actual culprits, I was arrayed in this case due to malice and ulterior motive. Previously a murder case was registered and tried by this Court against my two brothers who were acquitted by this Court, so, on the instigation of our previous opponent, I was involved in this case. I am innocent. I pray acquittal.
The appellant neither opted to appear as his own witness under Section 340(2) Cr.P.C. nor produced any defence evidence. On the conclusion of trial, the learned trial Court has convicted and sentenced the appellant through the impugned judgment dated 30.06.2016 as alluded to in para No.1 of the instant judgment. Hence, this appeal.
4. Arguments heard and record perused.
5. According to the FIR, the alleged unfortunate incident took place at about 1.30 a.m. (night) on 24.10.2014, and was allegedly reported to the police at 1.30 a.m., also the same night. The distance between the place of occurrence and the police station is /2 kilometer. Muhammad Umar complainant had not mentioned the time of occurrence in complaint (Exh.PB). However, Muhammad Aslam SI (PW-10) has endorsed the time 1:30 a.m.
(night) on receiving the complaint at Mohallah Ghulab Shah, Mecload Gunj. Since the police station statedly was not located at a far away from the place of occurrence, therefore, reaching of the police at the spot within a short period after the occurrence being possible, cannot be ruled out, but the presence of the eye-witnesses at the relevant time at the place where the occurrence took place is a different phenomenon. Even otherwise, the FIR recorded at the spot or elsewhere from the police stations are always seen with suspicious eyes, as the possibility of having it been lodged after due deliberation and preliminary inquiry cannot be ruled out. Hence, avowed promptitude of the prosecution in lodging the FIR cannot be readily accepted, as a complimentary factor, for believing the prosecution story contained in the FIR to be true as a gospel truth. The promptitude in lodging the FIR, does not necessarily exclude the chances of consultation and deliberations by the complainant, therefore, it cannot be treated as a substantive piece containing an element of correctness about the story of the prosecution. Each criminal case has to be decided while taking into consideration the overall circumstances of the case.
6. The promptitude shown by the prosecution in lodging the FIR and in conducting the post-mortem examination over the dead body is belied by the inherent flaws in existence in the evidence of PW-4 and PW-5, rendering their claim of being eye-witnesses of the occurrence to be doubtful. The Superior Courts time and again have shown their judicial anxiety, while noticing that the police either being in league with the complainant for some obvious reasons or for arranging a suitable complainant, capable of narrating the occurrence in the be-suiting manner through FIR or in order to show their efficiency do not hesitate in stopping the Roznamcha for later on proceed to make relevant entries therein for showing the FIR to have been lodged promptly. It has been held in case titled "Ata Muhammad and another Vs. The State"(1995 SCMR 599) that:- "Time of recording of F.I.R is not always genuine. The police, after learning about the commission of the crime keeps the space in the daily diary (Roznamcha) and a page in the F.I.R. Register blank for incorporating therein the gist of the information, the factum of registration of the case and the detailed report subsequently, in the light of preliminary investigation made by it. Furthermore, in the present case the F.I.R. was lodged by eye-witness himself. So, his previous statement recorded in the F.I.R. does not come from any distinct source. A witness cannot corroborate himself by repeating the version before different persons on different occasions. The evidence at the trial cannot be corroborated or reinforced by proving that the witness had made a similar statement to a third party on a previous occasion. Mere repetition of a story will not give it any force or prove its truth."
Muhammad Umar complainant (PW-4) is the real brother , whereas Iftikhar Hussain (PW-5) happens to be paternal cousin of the deceased i.e. closely related, who both are residents of Mauza Sharfpur , Tehsil Minchanabad. The occurrence had taken place at Mohallah Ghulab Shah, Mecload Gunj. Both of these PWs are not residents of the locality , where the alleged occurrence had taken place. They have also not given any plausible reason for their presence at the relevant time at the place of occurrence. Their bald assertion of having been invited by the groom at the function cannot be accepted on its face value, therefore, the evidence of these PWs needs serious scrutiny .
7. Before undertaking analytical discussion over the ocular account furnished by Muhammad Umar complainant (PW-4) and Iftikhar Hussain (PW-5), it is observed that the place of assemblage for celebrating "Rasm e-Hina" of groom Naveed Iqbal Bhandara, is to be the place of occurrence, in view of the statement of Muhammad Aslam, SI/I.O. (PW-10), who has stated that "it is correct that according to my investigation at the spot, it came to limelight that on the night of occurrence, it was "Rasm-e-Hina" of Naveed Iqbal Bhandara" are the undisputed facts and realities of this case. In order to believe the evidence of a witness, furnishing the ocular account regarding some occurrence/crime, in view of the established principles, laid down by the Superior Courts, for the criminal dispensation of justice, it is the first requirement, whether the witness has established his presence at the place of occurrence, subject to the judicial scrutiny, undertaken by the Courts in order to satisfy its judicial conscious.1 Secondly, the conduct of the witnesses is always seen through the prism of circumstances. The Courts are always firm that in case a witness fails in satisfying a judicial mind by establishing his presence at the relevant time at the spot, his evidence cannot be relied upon despite his parrot like narration of the occurrence. The demonstration of a natural conduct by a witness at the time of occurrence attaches with itself an intrinsic evidentiary worth for a good ground for believing the evidence of such a witness, but if the conduct of the witness is either found to be unnatural at the relevant time by the Court or it appears to be in contradiction with other realities of the relevant facts, the Court will always be ready to discard such an evidence. The Superior Courts of this country are always consistent in expressing their views through their authoritative pronouncements that the evidence of such a witness, who fails in satisfying a judicial mind by giving a reasonable explanation for his presence at the place of occurrence, his evidence may not be relied upon for holding an accused guilty or for upholding already recorded conviction by some lower forum.
8. In the instant case, both the PWs i.e. Muhammad Umar, complainant (PW-4) and Iftikhar Hussain (PW-5), the alleged eye-witnesses of the occurrence are the real brother and paternal cousin of the deceased respectively.
They are not the residents of the locality, where the alleged occurrence had taken place. No other independent witness has entered appearance as a witness, in this case. So much so, the groom in whose "mehndi ceremony", the deceased had come to participate as a guest, in which the deceased lost his life, did not come forward to substantiate the prosecution's version. Neither the trial Court in view of the peculiar circumstances of the case exercised its jurisdiction and power to summon the groom even as a C.W. The prime object behind the establishment of judicature under the constitution and the law is to do justice, in accordance with law while exercising their powers, so vested in it. The personality of groom namely Naved Iqbal Bhandara had the status of a bastion in this case. It was none else except him in whose "mehndi ceremony", this occurrence had taken place.
By all stretch of imagination, his presence at the spot is well established, therefore, the learned trial Judge ought to have exercised his jurisdiction for summoning him, not only in order to do the justice but also to un-earthen the truth also, but he had failed in exercising his power in this regard. He was not expected to sit like an idle rather he was bound by his duty to exercise his jurisdiction in search of truth and truth alone. According to the admission of the complainant Muhammad Umar(PW-4), regarding inter-se distance between the accused/appellant and the deceased at the time of his sustaining firearm injury, he deposed that "they were at a distance of three feet", which fact is also confirmed by the entries of site plan (Exh:PF), drafted by Muhammad Saeed Rana, draftsman (PW-6) on the instructions of the eye-witnesses as well as the Investigating Officer. As per medical jurisprudence, when a fire shot is made from a distance of less than 3 feet, there may be blackening or charring marks on the corresponding wounds, but in the instant case, after going through the Post Mortem report, we find no blackening or charring marks, even the Medical Officer i.e. Dr. Syed Hasnain (PW-1), who condu cted post-mortem examination over the dead-body of the deceased, did not observe any sign of blackening or burning over the dead body of the deceased. He during cross-examination admitted it correct that "he did not note any blackening, burning or tattooing around the wound mentioned in examination-in-chief." He further deposed that "he did not find any burning of the hair of the scalp of the deceased". It has been held in case titled "Amin Ali and another Vs. The State "(2011 SCMR 323 ) that:- "None of the witnesses deposed that any of the appellants had caused the injuries from a close range but on the contrary in the site plan the place of firing has been shown 8 feet away from the deceased. Thus from such a distance injury with blackening cannot be caused as it can be caused from a distance of less than 3 feet as per Modi' s Medical Jurisprudence.
Reliance can also be placed upon case titled "Nooro alias Noor Muhammad Shar and another Vs. The State" (2018 PCr.LJ 52). Hence, it can safely be concluded that the ocular account is in contrast with the medical evidence. The medical evidence being a corroboratory piece of evidence, should have been in conformity with the ocular account for believing their evidence furnished by ocular account, but in case, it is found that the same, instead of being in conformity, has given rise to a doubt regarding the claim of the eye- witnesses of having seen the occurrence, which has to be resolved in favour of the accused, who is legally termed as a benefic i.e. the accused.
9. Unfortunately , it is little common in our cultural background, especially in the rural areas that some of the people celebrate the marriage, birth of a child, or alike nature occasions by arranging and indulging themselves in it in such manners, which becomes offensive and cannot be approved under any norm of civilized code of life but being a ground reality , which is hardly checked by law enforcing agencies, has been resulting into deaths of innocent participants of such ceremonies and as a result, un-intended deaths ensue into creating animosity against those persons from whose hands their near and dear lose their lives and while reporting the occurrence even do not hesitate in giving it a be-suiting colour as an intended crime. But the pretended story hardly sustains, either during investigation or the trial on judicial scrutiny , the benefit thereof, goes to the accused . In the instant case, neither the occurrence has taken place in the mode and manner , in which the prosecution had claimed nor the alleged motive had prodding the accused for committing the offence appears to be genuine. None has come forwarded out of the participants of the ceremony to tell the truth either before the I.O or before the Court. Even no attempt has been made by the Court despite possessing inherent powers with it for calling any person as a Court witness, whose evidence in order to un-earthen the truth could have been brought on record, which would have been necessary for just decision of the case. Therefore, in such circumstances, when the eye-witnesses have utterly failed to satisfy our judicious consideration regarding their presence.
10. As regards recovery of 30 bore pistol (P-4) at the instance of the appellant and positive report of Forensic Science Laboratory (Ex.PN) are concerned, we have noted that in the present case, the recovery of empty of pistol 30 bore has been shown to be effected by the Investigating Officer (PW-10) on 24.10.2014, whereas the accused was arrested on 17.11.2014. The recovery of pistol 30 bore (P-4) was allegedly effected by the appellant from the iron box lying in his residential room on 20.11.2014, which was taken into possession by the I.O through recovery memo (Exh.PE). As per report of Punjab Forensic Science Agency, Lahore (Exh.PN), the aforesaid empty was sent to the said office on 17.11.2014 and weapon of offence i.e. pistol 30 bore (P-4) on 19.12.2014, meaning thereby, the recovered empty was sent after the arrest of the accused/appellant and after 23 days of the occurrence. It is, by now, well-established that if the crime empty is sent to the Forensic Science Laboratory after the arrest of the accused or together with the crime weapon, the positive report of the said Laboratory loses its evidentiary value.
Reliance in this respect is placed upon the case titled "Jehangir v. Nazar Farid and another" (2002 SCMR 1986), "Israr Ali v. The State" (2007 SCMR 525) and "Ali Sher and others v. The State" (2008 SCMR 707). In Israr Ali's case, the Hon'ble Supreme Court has observed that when the crime empties are sent to the Forensic Science Laboratory with delay, the recovery of the same does not provide strong corroboration qua the prosecution version.
Moreover , Iftikhar Hussain (PW-5) deposed that "on 20.11.2014, he alongwith Aftab Ahmad joined investigation before the police. On that day, accused Ali Ahmad present in the Court while under custody made disclosure and led to the recovery of pistol 30-bore. The police made the pistol into a sealed parcel and took into possession vide recovery memo Ex.PE. He alongwith Aftab PW had attested the recovery memo. The above portion of statement of said PW clearly indicate that he had failed to point out the place wherefrom the alleged weapon of offence was recovered by the appellant. Hence, in view of the above, the recovery is inconsequential.
11. Coming to the motive part of the occurrence, according to the complainant Muhammad Umar (PW-4), the motive behind the occurrence was that the accused persons had committed the murder of his brother Zahid Hussain, on the instigation of some of their opponent. It is interesting to note that as per the case set out by the prosecution, no personal grudge/motive has been attributed to the appellant for the commission of the alleged offence. It has been alleged by Muhammad Umar, complainant (PW-4) in his complaint (Exh.PB), which he reiterated while appearing in the witness box as PW-4 that "his brother Zahid Hussain sat with the groom on a Sofa set. At about 01:00 am, Ali Ahmad accused present in the Court armed with pistol 30-bore alongwith an unknown person came there. They asked his brother to get up from the said Sofa. His brother refused, on which the unknown persons asked Ali Ahmad to shoot his brother and murdered him. On which Ali Ahmad accused present in the Court took out his pistol from the "nefa" of his "shalwar" and made straight fire which landed on the back side of head of his brother Zahid Hussain, who after sustaining the fire shot fell on the Sofa while both of the accused persons fled away from the spot. Interestingly, Muhammad Umar, complainant (PW-4) further deposed in examination-in-chief that "the accused persons had committed the murder of his brother on the instigation of their some opponent." Both the aforesaid stances of the complainant regarding the motive are mutually destructive and inherently inconsistent with each other.
The complainant in his first breath stated that the occurrence had taken place at the spur of the moment on refusal of the deceased to vacate the seat of sofa set, but in the subsequent breath, he had stated that the accused persons had committed the murder of his brother on the instigation of some of their opponents, even the motive could not have been established even during the investigation. Muhammad Aslam SI, Investigating Officer (PW-10) during cross-examination, admitted it as correct that during investigation neither rivalry nor enmity between accused Ali Ahmad and Zahid deceased was established. Even the identity of the unknown co-accused has neither could be established nor he ever had come on the surface. It will also be advantageous to note here that Iftikhar Hussain (PW-5) deposed during cross-examination that "neither himself nor any PWs had disclosed the name and identity of that unknown person who asked Ali Ahmad for making fire on the deceas ed. It is correct that the name of said unknown person could not be traced/detected by the police. Muhammad Aslam SI (PW-10) stated that "during investigation, presence of unknown accused was not proved and he delete d Sec.34 PPC." Furthermore, Muhammad Umar , complainant (PW-4) deposed during cross-examination that "they had neither any altercation, nor any dispute, nor any litigation with the accused Ali Ahmad as well as his family member prior to the occurrence." These facts fully establish that there was no motive behind the occurrence as alleged by the prosecution. The motive was non-existent and only had been introduced by the complainant to furnish a justification for giving a be-suiting turn or colour to the occurrence, instead of bringing on record the true facts.
12. For what has been discussed above, keeping in view the ocular account being in contrast with the medical evidence, coupled with the pseudo promptitude in lodging the FIR by the complainant, and doubtful presence of eyewitnesses at the place of occurrence at the relevant time, failure of the prosecution in proving the motive and recovery against the appellant accumulatively , we are of the view that the prosecution has miserably failed to prove its case against the appellant beyond any shadow of doubt. The benefit of doubt must accrue in favour of accused as the Hon'ble Supreme Court of Pakistan has held in case titled "Muhammad Khan and another Vs. State" (PLJ 2000 SC 1041) that it is axiomatic and universal recognized principle of law that conviction must be founded on unimpeachable evidence and certainty of guilt and hence any doubt that arises in prosecution case must be resolved in favour of accused. Moreover it is cardinal principle of criminal jurisprudence that a single instance giving rise to a reasonable doubt in the mind of Court entitles the accused to the benefit of doubt not as a matter of grace but as a matter of right. Reliance is placed on case titled as "Muhammad Akram versus The State" (2009 SCMR 230) and "Tariq Pervaiz Vs. The State" (1995 SCMR 1345).
Consequently, we accept this appeal, set aside conviction and sentence of appellant Ali Ahmad, awarded by learned trial Court vide impugned judgment dated 30.06.2016 and acquit him of the charge by extending him the benefit of doubt. The appellant Ali Ahmad is directed to be released forthwith, if not required in any other case.
The death sentence awarded to appellant Ali Ahmad is not confirmed and Murder Reference No.49/2016 is answered in negative.
13. Before parting this judgment, I gratefully acknowledge the material assistance rendered by Lahore High Court Bahawalpur Bench, Research Center headed by Mr. Muhammad Javed Khan, Civil Judge/Research Officer of this Bench.