SADIQ MAHMUD KHURRAM, J.The appellants namely Liaqat son of Manzoor , Ghulam Abbas son of Elahi Bakhsh, Aslam son of Zahoor , Muhammad Shafi son of Sher Muhammad alias Khandou and Ismail son of Muhammad Ali were tried by the learned Additional Sessions Judge, Multan in case instituted upon the private complaint titled "Muhammad Riaz Vs. Liaqat and five others" ( relating to FIR No. 497 of 2011 dated 31.07.201 1 registered at Police Station Saddar Shujjabad District Multan in respect of offences under sections 302,364,148 and 149 PPC) for committing the Qatl-i-Amd of Muhammad Ijaz son of Haji Allah Bakhsh (deceased). The learned trial court vide judgment dated 30.04.2015 convicted Liaqat son of Manzoor , Ghulam Abbas son of Elahi Bakhsh, Aslam son of Zahoor , Muhammad Shafi son of Sher Muhammad alias Khandou and Ismail son of Muhammad Ali (convicts) and sentenced them as infra: 1) Liaqat son of Manzoor: i) Death under section 302(b) PPC as Tazir for committing Qatl-i- Amd of Muhammad Ijaz son of Haji Allah Bakhsh (deceased) and directed to pay Rs.200,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased, in case of default thereof, the convict was further directed to undergo six months of simple imprisonment. The convict was ordered to be hanged by his neck till dead. ii) Imprisonment for life under section 364/149 PPC and fine of Rs.50,000/- and in case of default of payment of fine , directed to further undergo simple imprisonment for three months. iii) Rigorous imprisonment for three years under section 148 PPC. All the sentences of imprisonment were ordered to run concurrently.
2) Ghulam Abbas son of Elahi Bakhsh : i.) Imprisonment for life under section 302(b)/149 PPC as Tazir for committing Qatl-i-Amd of Muhammad Ijaz son of Haji Allah Bakhsh (deceased) and directed to pay Rs.100,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased, in case of default thereof, the convict was further directed to undergo six months of simple imprisonment. ii) Imprisonment for life under section 364/149 PPC and fine of Rs.50,000/- and in case of default of payment of fine , directed to further undergo simple imprisonment for three months. iii) Rigorous imprisonment for three years under section 148 PPC. The appellant was extended the benefit provided under section 382-B of the Code of Criminal Procedure, 1898 and all the sentences were ordered to run concurrently .
3). Aslam son of Zahoor i.) Imprisonment for life under section 302(b)/149 PPC as Tazir for committing Qatl-i-Amd of Muhammad Ijaz son of Haji Allah Bakhsh (deceased) and directed to pay Rs.100,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased, in case of default thereof, the convict was further directed to undergo six months of simple imprisonment. ii) Imprisonment for life under section 364/149 PPC and fine of Rs.50,000/- and in case of default of payment of fine , directed to further undergo simple imprisonment for three months. iii) Rigorous imprisonment for three years under section 148 PPC.
The appellant was extended the benefit provided under section 382-B of the Code of Criminal Procedure, 1898 and all the sentences were ordered to run concurrently .
4.) Muhammad Shafi son of Sher Muhammad alias Khandou i.) Imprisonment for life under section 302(b)/149 PPC as Tazir for committing Qatl-i-Amd of Muhammad Ijaz son of Haji Allah Bakhsh (deceased) and directed to pay Rs.100,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased, in case of default thereof, the convict was further directed to undergo six months of simple imprisonment. ii) Imprisonment for life under section 364/149 PPC and fine of Rs.50,000/- and in case of default of payment of fine , directed to further undergo simple imprisonment for three months. iii) Rigorous imprisonment for three years under section 148 PPC.
The appellant was extended the benefit provided under section 382-B of the Code of Criminal Procedure, 1898 and all the sentences were ordered to run concurrently .
5.) Ismail son of Muhammad Ali i.) Imprisonment for life under section 302(b) /149 PPC as Tazir for committing Qatl-i-Amd of Muhammad Ijaz son of Haji Allah Bakhsh (deceased) and directed to pay Rs.100,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased, in case of default thereof, the convict was further directed to undergo six months of simple imprisonment. ii) Imprisonment for life under section 364/149 PPC and fine of Rs.50,000/- and in case of default of payment of fine , directed to further undergo simple imprisonment for three months. iii) Rigorous imprisonment for three years under section 148 PPC.
The appellant was extended the benefit provided under section 382-B of the Code of Criminal Procedure, 1898 and all the sentences were ordered to run concurrently .
2. Feeling aggrieved, Liaqat son of Manzoor , Ghulam Abbas son of Elahi Bakhsh, Aslam son of Zahoor , Muhammad Shafi son of Sher Muhammad alias Khandou and Ismail son of Muhammad Ali (convicts) lodged Criminal appeal No.262 of 2015 against their conviction and sentences. The learned trial court submitted Murder Reference No.32 of 2015 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to appellant Lia qat son of Manzoor . We intend to dispose of the Criminal Appeal No. 262 of 2015 and Murder Reference No.32 of 2015 through this single judgment.
3. Precisely the facts necessary , as divulged in the statement of Muhammad Riaz son of Allah Baksh (PW-2) are as under:- "Stated that Muhammad Ijaz, deceased was my real brother . On 31.07.201 1 at 10:30 a.m. I along with Ijaz deceased, Imtiaz Ahmad, and Nazeer Ahmad my brother in law, went to the house of my uncle Rabnawaz on two motorcycles situated in Mauza Dera Arbi, Chah Khokharwala. Ijaz Ahmad deceased in order to go the house of his maternal aunt, departed from there situated in Mauza Ghalwan and after some time, we heard fire shots and shareeks (sic). We ran outside and we saw Liaqat S/O Manzoor , Saeed S/O Ghulam Nazik alias Botha, Abbas S/o Elahi Buksh, Shafi S/O Sher Muhammad , Aslam S/O Zahoor , Ismail S/O Muhammad Ali who were known to me belonging to Mauza Karam Ali Wala. Liaqat accused was armed with pistol, Saeed armed pistol, Abbas armed with pistol, rest of the accused were also arme d with pistols. The accused persons made straight fires towards us. And they were on three motorcycles. The above mentioned accused forcibly lifted my brother Ijaz Ahmad deceased and took him towards west. I along with Imtiaz, Nazeer Ahmad, Abdur Razzaq PWs followed them and while making firing threatened us that in case, anybody come near to them, he will be done to death. I made telephonic call to police at 15 from my phone No. 0300-7340753. The accused persons took my brother towards west. We all followed the accused persons. The accused persons took my brother at Chah Dahu Wala graveyard and in our view, Liaqat made a pistol fire on the person of my brother which was landed on his neck, in the result of which, my brother fell down. Saeed accused made pistol fire on the left side of chest of my brother, Shafi made pistol fire which was landed in the belly of my brother Ijaz on his left side. Abbas made fire with his pistol which was landed on left side belly of my brother. Aslam and Ismail accused made fires with their pistols which were landed on the left arm of my brother. Many people of the Ilaqa including our relatives attracted to the spot who also saw the occurrence with their own eyes. The accused persons seeing the PWs and people coming towards them, succeeded to run away with their respective weapons making firing. The motive behind the occurrence was that in the year 1996, a case FIR No. 180/96 was registered with regard to the murder of brother of Liaqat namely Shaukat and in that case, except myself, all the accused were acquitted and I was convicted for life imprisonment.
I got registered case FIR No. 497/11 u/s 302,364,148/149 PPC against the above mentioned accused persons at P.S. Saddar Shujabad. The police after charging gratification from the accused persons and by joining hands with them, declared Aslam S/O Zahoor, Shafi S/O Sher Muhammad, and Ismail S/O Muhammad Ali innocent who were actual culprits and participated in the murder of my brother . In case the accused persons have not been there, the occurrence would not have taken place. I had been submitted applications to the police high-ups against the conduct of the I.O. but no action was taken against the I.O. and in the last resort, I filed the present complaint which is EX-PC. The same was read over , I signed the same in token of its correctness."
4. The accused were summoned to face trial in the case instituted upon the priva te complaint titled "Muhammad Riaz Vs. Liaqat and five others" ( relating to FIR No. 497 of 2011 dated 31.07.201 1 registered at Police Station Saddar Shujjabad District Multan in respe ct of offences under sections 302,364,14 8 and 149 PPC) for committing the Qatl-i-Amd of Muhammad Ijaz son of Haji Allah Bakhsh (deceased). The learned trial court framed the charge against the accused on 20.03.2013, to which the appellants pleaded not guilty and claimed trial.
5. The complainant in order to prove its case got recorded statements of as many as six witnesses. The ocular account of the occurrence was furnished by Muhammad Riaz (PW-2) and Imtiaz son of Allah Bakhsh (PW-3).
Muhammad Akhtar T-ASI (PW-4) stated that on 31.07.201 1 he recorded the formal FIR (Exh.PG). Irfan Hayat, draftsman (PW-5) prepared the scaled site plan of the place of occurrence (Exh.PH and Exh.PH/1). Ismail (PW-6) identified the dead body of the deceased. The learned trial court also examined six witnesses as Court Witnesses.
Khadim Hussain 4286/C (CW-1) stated that on 31.07.201 1 he escorted the dead body of the deceased for its postmortem examination. Muhammad Shabbir 540/C (CW-2) stated that on 21.09.2011, Liaqat (appellant) to the recovery of pistol (Exh. C1) and Ghulam Abbas, (appellant ) led to the recovery of pistol (Exh.C2). Muhammad Ahsraf 1468/C (CW-3) stated that on 09.09.2011 he was handed over a sealed parcel said to contain blood stained earth which he deposited in the office of Chemical Examiner, Lahore and on 26.09.2011 he was handed over a sealed parcel said to contain empties which he deposited in the office of Punjab Forensic Science Agency, Lahore. Nazar Hussain 1656/HC (CW 4) stated that on 31.07.2011 Zia Akhtar, SI (CW-5) handed over to him a motorcycle, last worn clothes of the deceased, a sealed parcel said to contain blood stained earth and a sealed parcel said to contain empties which he handed over to Muhammad Ashraf 1468/C (CW-3). He further stated that on 31.09.2011 Zia Akhtar, SI (CW-5) handed over to him two sealed parcels said to contain pistols.
Riaz Ahmad, 336/C (CW-6) stated that on 29.09.2011 he executed non bailable warrants of arrest of accused Saeed (proclaimed offender). Zia Akhtar, SI (CW-5) investigated the case from 31.07.2011 till 21.09.2011 and detailed the facts discovered during investigation conducted by him in his statement before the learned trial court.
6. The prosecution got examined Dr. Muhammad Idrees (PW.-1), who on 31.07.201 1 was posted as Medical Officer at THQ Hospital, Shujabad and on the same day conducted the postmortem examination of Muhammad Ijaz son of Haji Allah Baksh (deceased). Idrees (PW.-1) on examining Muhammad Ijaz son of Haji Allah Baksh (deceased) observed as under: "Stated that on 31.07.201 1, at 05:30 p.m, when I was posted at THQ Hospital, Shujabad, as Medical Officer , the dead body of Muhammad Ijaz S/O Haji Allah Buksh was brought by police for postmortem examination. The dead body was identified by Nazir Ahmad S/O Faiz Bakhsh and Muhammad Ismail S/O Pir Bukhsh. It was a dead body of a young man, lying on mortuary table with closed eyes, and open mouth wearing brown coloured shalwar , qameez and white buniyan were stained with blood, rigor mortis was developed, PM staining were present.
I found the following injuries on the person of the deceased: INJURIES
1. A lacerated wound measuring 2 cm x 1 cm on the front of neck. Blacening and burning was present, margins were inverted.
2. A lacerated wound measuring 0.7 cm x 0.5 cm on the back of neck margins were everted.
3. A lacerated wound 1 cm x 0.5 cm on flexor part of left forearm, 6 cm below elbow blackening was present, margines were inverted.
4. A lacerated wound measuring 1 cm x 1 cm on medial aspect of left forearm, 1 cm below elbow , margins were everted.
5. A lacerated wound 1 cm x 0.5 cm on flaxor aspect of left forearm 7 cm below elbow , blackening was present, margins were inverted.
6. A lacerated wound 1.5 cm x 0.7 cm on medial aspect of left forearm, 3 cm below elbow , margins were everted.
7. A lacerated wound measuring 0.5 cm x 0.5 cm on the lateral side just above wrist of left forearm, blackening was present, margins were inverted.
8. A lacerated wound measuring 1 cm x 0.8 cm on medial aspect of wrist of left forearm. Margins were everted.
9. A lacerated wound measuring 0.5 cm x 0.5 cm on left side of chest, 8 cm below nipple, blackening was present, margins were inverted.
10. Two lacerated wounds measuring 0.5 cm x 0.5 cm and 0.5 cm into 0.5 cm on left side of abdomen, 2 cm and 6 cm from umbilicus respectively , blackening was present, margins were inverted.
11. A lacerated wound measuring 0.8 cm x 0.8 cm on right side of lower part of back, margins were everted.
12. T wo lacerated wounds measuring 0.8 cm x 0.8 cm on the left side of lower part of back, margins were everted.
13. Abrasion measuring 2 cm x 0.5 cm on medial malleolus of left ankle.
Opinion In my opinion, due to injures of vital organs, hemorrhagic and neurogenic shock occurred which lead to death. Time between death and injures was at the spot whereas time between death and postmortem was 7 to 8 hours.
Postmortem report EX-PA is in my hand, bears my signatures. EX-PA/1, EX-PA/2 is diagram showing the seats of injures which are also in my hand and bears my signatures. After postmortem examination, I handed over the dead body, postmortem report EX-PA, police papers and last worn clothes of the deceased to police. I endorsed inquest report EX-PA/3. I also countersigned injury statement EX-PB."
7. On 25.03.2015 the learned counsel for the complainant closed the prosecutio n evidence after tendering the reports of Chemical Examiner (Exh.PK) and the Serologist (Exh.PL) .
8. After the closure of prosecution evidence, the learned trial court examined the appellants namely Liaqat son of Manzoor , Ghulam Abbas son of Elahi Bakhsh, Aslam son of Zahoor , Muhammad Shafi son of Sher Muhammad alias Khandou and Ismail son of Muhammad Ali under section 342 Cr.P.C. and in answer to question why this case against you and why the PWs have deposed against you, the appellants replied that they were innocent and had been falsely involved in the case due to previous enmity . The appellants further stated that they had not committed the occurrence. The appellants namely Liaqat son of Manzoor , Ghulam Abbas son of Elahi Bakhsh, Aslam son of Zahoor , Muhammad Shafi son of Sher Muhammad alias Khandou and Ismail son of Muhammad Ali opted not to get themselves examined under section 340(2) Cr.P.C however produced attested copies of FIRs (Exh. DB to Exh.
DH), photocopies of FIRs ( Mark-DA to Mark DH) and photocopy of report under section 173 of Cr.PC in case FIR No. 205 of 2007 (Mark-DJ) in their defence.
9. On the conclusion of the trial, the learned Additional Sessions Judge, Multan convicted and sentenced the appellants as referred to above.
10. The contention of the learned counsels for the appellants precisely is that whole case is fabricated and false.
The learned counsels for the appellants submitted that the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence. The learned counsels for the appellants further contended that the statements of Muhammad Riaz (PW-2) and Imtiaz son of Allah Bakhsh (PW- 3) were not worthy of reliance. The learned counsels for the appellants also argued that the recoveries of pistols were full of procedural defects , of no legal worth and value and result of fake proceedings. The learned counsels for the appellants finally submitted that the prosecution has totally failed to prove the case against the appellants beyond the shadow of doubt.
11. On the other hand, learned Deputy Prosecutor General along with the learned counsels for the complainant contended that the prosecution has proved its case beyond shadow of doubt by producing independent witnesses.
Learned counsels further argued that the deceased died as a result of injuries suffered at the hands of the appellants . They further contended that the medical evidence also corroborated the statements of Muhammad Riaz (PW-2) and Imtiaz son of Allah Bakhsh (PW-3). They further argued that the recoveries from the appellants also corroborated the ocular account .They contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offenders with the innocent in this case. Lastly , they prayed for the rejection of appeal.
12. We have heard the learned counsels for the appellants and learned Deputy Prosecutor General along with the learned counsels for the complainant and with their assistance perused the record and evidence recorded during the trial carefully .
13. The whole prosecution case revolves around the statements of Muhammad Riaz (PW-2) and Imtiaz son of Allah Bakhsh (PW-3). These witnesses namely Muhammad Riaz (PW-2) and Imtiaz son of Allah Bakhsh (PW-3) were real brothers of the deceased . Muhammad Riaz (PW-2) and Imtiaz son of Allah Bakhsh (PW-3) further admitted in their cross-examination that they were not the residents of the place of occurrence. It is an admitted fact that none of the prosecution witnesses namely Muhammad Riaz (PW-2) and Imtiaz son of Allah Bakhsh (PW- 3) had their residences or their houses at the place of occurrence. They were all "chance witnesses". Muhammad Riaz (PW-2) during cross-examination admitted as under:- " The house of Rab Nawaz is situated at the distance of one kilometer from my house."
Muhammad Riaz (PW-2) during cross-examination further admitted as under:- " I alongwith PWs per chance were present at the house of Rab Nawaz."
Zia Akhtar , SI (CW -5), the Investigating Of ficer of the case during cross-examination admitted as under:- "It is correct that the witnesses namely Riaz and Imtiaz are not the residents of place of abduction."
In addition to above extracts, it is noticed that neither Muhammad Riaz (PW-2) nor Imtiaz son of Allah Bakhsh (PW- 3) could establish their acclaimed presence at the spot. Muhammad Riaz (PW-2) had stated that when they were present at the house of their uncle namely Rab Nawaz ( not produced), the deceas ed departed from the said house towards the house of his maternal aunt and after some time the witnesses heard fire shots and shrieks. He further submitted that the appellants made straight fires towards them and forcibly lifted the deceased and took him towards west. It was further deposed by him that when the witnesses followed the appellants they were again fired at. As per the deposition of Muhammad Riaz (PW-2) they were fired at by the appellants at two different places.
Similarly , Imtiaz (PW-3) also deposed that the appellants made firing at the witnesses at two different places.
However , during the investigation of the case, Zia Akhtar , SI (CW-5), the Investigating Officer of the case, did not collect or find any empties at the said two places from where the appellants had allegedly fired at the witnesses.
Both the witnesses namely Muhammad Riaz (PW-2) and Imtiaz (PW-3) had claimed that they were attracted to the place of occurrence on hearing fire shots when they were present at the house of their uncle Rab Nawaz. In direct contrast to this stance, Imtiaz (PW -3) during cross-examination stated as under:- "We were just going to the cotton crop, then we heard the aerial firing and went towards the spot."
Muhammad Riaz (PW -2) in his examination-in chief had narrated a dif ferent story and had stated as under:- "On 31.07.201 1 at 10:30 a.m. I along with Ijaz deceased, Imtiaz Ahmad, and Nazeer Ahmad my brother in law, went to the house of my uncle Rabnawaz on two motorcycles situated in Mauza Dera Arbi, Chah Khokharwala. Ijaz Ahmad deceased in order to go the hous e of his maternal aunt, departed from there situated in Mauza Ghalwan and after some time, we heard fire shots and shareeks (sic). We ran outside and we saw Liaqat S/O Manzoor , Saeed S/O Ghulam Nazik alias Botha, Abbas S/o Elahi Buksh, Shafi S/O Sher Muhammad , Aslam S/O Zahoor , Ismail S/O Muhammad Ali who were known to me belonging to Mauza Karam Ali W ala"
It is clearly mentioned by Muhammad Riaz (PW-3) that after hearing the fire shots they ran outside from the house of Rab Nawaz but Imtiaz (PW-3), the other eye witness, had claimed that they were going to the cotton crop when they heard the fire shots. Imtiaz (PW-3) never claimed that they were present inside the house of Rab Nawaz and from there they proceeded towards the place of abduction. Muhammad Riaz (PW-2) had stated in his statement before the learned trial court as under:- " Ijaz deceased was abducted from the Official Small Bridge situated in the Basti Khokhran Wali which is situated on one side of the abadi."
However Zia Akhtar , SI (CW -5), the Investigating Of ficer of the case, during cross-examination admitted as under:- "It is correct that in my investigation, I found that Ijaz was never abducted from Basti Khokhran."
Moreover, it was alleged by the eye witnesses that the appellants were riding on two motorcycles at the time of abduction of Muhammad Ijaz (deceased) . Muhammad Riaz (PW-2) during cross-examination was confronted and replied as under:- " I had not stated in my statement before police as well as in Court that accused persons riding on three motor - cycles were kidnapping my brother Ijaz confronted with summary statement dated 21.03.2012 where it is so recorded."
However during the course of investigation no motorcycle under the use of accused was recovered. Likewise, it can well be gathered from the deposition of the two eye-witnesses that they along with deceased arrived at the eventful place not in accordance with their daily routine. Cumulatively , these circu mstances 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 witnes s 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 chance 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 1142) 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".
We have also perused the scaled site plan of the place of occurrence (Exh.PH ) as prepared by Irfan Hayat, draftsman (PW-5) , the rough site plan of the place of occurrence (Exh.CF) , the rough site plan of the place of recovery of the motorcycle of the deceased (Exh.CE) as prepared by Zia Akhtar , SI (CW-5) and find that neither any house nor any shop belonging to the eye witnesses is marked in the same. As per the claim of the prosecution witnesses, both the prosecution witnesses namely Muhammad Riaz (PW-2) and Imtiaz (PW-3), were present in the house of one Rab Nawaz (not produced). A perusal of the above mentioned site plans (Exh.PH, Exh.CE and Exh.CF) reveals that the house of one Rab Nawaz (not produced), wherein both the prosecution witnesses namely Muhammad Riaz (PW 2) and Imtiaz (PW-3) were allegedly present prior to the occurrence, is also not shown in the said site plans. Furthermore, to accentuate these omissions in the case of the prosecution, during the whole investigation the said Rab Nawaz did not appear before the Investigating Officer nor was produced by the witnesses to support the claim of the prosecution witnesses that the witnesses namely Muhammad Riaz (PW- 2) and Imtiaz (PW-3) were indeed present in the house of one Rab Nawaz (not produced). The said Rab Nawaz also did not appear before the learned trial court in support of the assertion of the prosecution witnesses that they were present in his house prior to the occurrence. All these omissions are conspicuous by their absence. In absence of physical proof of the reason for the presence of the witnesses at the crime scene the same cannot be relied upon. In this respect reliance is placed on the case of "Muhammad Rafiq v. State" (2014 SCMR 1698) wherein the august Supreme Court of Pakistan rejected the claim of witnesses who lived one kilometer away from the occurrence, but on the day of occurrence stated to be present near the spot as they working as labourers, inasmuch as they failed to give any detail of the projects they were working on. Reliance is also placed on the case of "Usman alias Kaloo v. State" (2017 SCMR 622) wherein the august Supreme Court of Pakistan held that the ocular account of the incident had been furnished by Zahoor Ahmad complainant (PW3), Ghulam Farid (PW6) and Manzoor Ahmed (PW7) who were all residents of some other houses and they were not inmates of the house wherein the occurrence had taken place and he said eye-witnesses were, thus, chance witnesses and not worthy of reliance .Reliance is also placed on the case of "Nasrullah alias Nasro v. The State" (2017 SCMR 724) .
14. We have also observed that both the witnesses namely Muhammad Riaz (PW-2) and Imtiaz (PW-3), during the cross examination admitted the existence of enmity between them on one part and the accused of the case on the other part. During the cross examination Muhammad Riaz (PW -2) admitted as under:- " I was rightly convicted in a case u/s 302 PPC. It is incorrect that I had a grudge against the accused. I also killed Shoukat Hussain due to this I falsely implicated the present accused persons in a case."
Similarly , Imtiaz (PW -3) during cross-examination, stated as under:- " I am brother of Riaz, and Ijaz deceased. The enmity exists between us and accused regarding murder of Shoukat."
The motive of the occurrence as mentioned by both the witnesses namely Muhammad Riaz (PW-2) and Imtiaz (PW-3) was that a case FIR No. 180 of 19 was registered with regard to the murder of Shaukat, brother of Liaqat (appellant) and in that case all the accused including the deceased were acquitted whereas Muhammad Riaz (PW- 3) was convicted for imprisonment for life. We have also minutely scanned the statements of Muhammad Riaz (PW-2) and Imtiaz (PW-3) and find that their claim was that they were present near the assailants at the time of firing. We have also perused the scaled site plan of the place of occurrence (Exh.PH) as prepared by Irfan Hayat, draftsman (PW-5) and the rough site plan of the place of occurrence (Exh.CF) as prepared by Zia Akhtar , SI (CW- 5). A perusal of the scaled site plan (Exh.PH) and the un-scaled site plan (Exh.CF) reveals that the occurrence took place in a graveyard. As per the witnesse s namely Muhammad Riaz (PW-2) and Imtiaz (PW-3) the common object of the accused was that accused of the murder of Shaukat, brother of Liaqat (appellant) should not escape.
Muhammad Riaz (PW-2) being and of the case FIR No. 180 of 1996 was also a prime target. Muhammad Riaz (PW-2) and Imtiaz (PW-3) by their own admission were in clear view, at a meagre distance, from the assailants and un-armed. The above mentioned witnesses stated that all the accused were armed with pistols and neither there was any dearth of ammunition nor that of intent and opportunity . In this scenar io it is hard to believe that the prosecution witnesses would have been shown the courtesy of being not fired at effectively . Both of these witnesses namely Muhammad Riaz (PW-2) and Imtiaz (PW-3) did not even receive a single scratch on their person. If the witnesses namely Muhammad Riaz (PW-2) and Imtiaz (PW-3) had been present, then they would not have been spared as the number of injuries on the person of the deceased showed the degree of venom and design the killers had for the deceased. Both Muhammad Riaz (PW-2) and Imtiaz (PW-3) even deposed that they were fired at during the occurrence. They both were miraculously saved in the midst of all the firing. Blessing them with such incredible consideration and showing them such favor is implausible and opposed to natural behavior of the accused. It is all the more illogical that being perceptive of the fact that if the witnesses were left alive they would depose against the accused even then the assailants did not cause any injury to them. Such behavior , on part of the accused, runs counter to natural human conduct and behavior . Article 129 of the Qanun-e-Shahadat Order , 1984 allows the courts to presume the existence of any fact, which it thinks likely to have happened, regard being had to the common course of natural events and human conduct in relation to the facts of the particular case.
We thus presume the existence of this fact, by virtue of the Article 129 of the Qanun-e-Shahadat Order , 1984, that the conduct of the assailants as deposed to by witnesses namely Muhammad Riaz (PW-2) and Imtiaz (PW-3) was opposed to common course of natural events and human conduct. Hence we are holding that Muhammad Riaz (PW-2) and Imtiaz (PW-3) were not present at the time of occurrence at the place of occurrence. The August Supreme Court of Pakistan in its binding judgment has repeatedly held that in a scenario where the motivation was against the complainant or the witnesses but the accused did not cause any harm to them notwithstanding being within the range of their firing would reveal that the said witnesses were not present at the place of occurrence. The August Supreme Court of Pakistan in case Tariq Mehmood v. The State and others (2019 SCMR 1170) has observed as under: "First sight cannot escape preponderance of evidence, however on a closer view, emerges a picture incompatible with the events, narrated in the crime report. The accused mounted assault, as per prosecution's own case to settle score with Muhammad Usman, PW for his alleged affair with the lady related to the appellant; it is disgrace that brought the assailants, face to face, with Muhammad Usman, PW, well within their view and reach it is astonishing that while being merciless without restraint upon others they spared prime target of assault. There can be no other inference that either Muhammad Usman was not present at the scene or the occurrence took place in a backdrop other than asserted in the crime report."
The August Supreme Court of Pakistan in case Rohtas Khan v. The State (2010 SCMR 566) at page 571 observed as under: "The alleged motive was against the complainant, but it is noted that the appellan t did not cause any injury to the complainant, though he was present within the range of firing, thus it supports the contention of the learned counsel of appellant that P .Ws. were not present at the place of occurrence."
The August Supreme Court of Pakistan in the case of Muhammad Farooq & another v. The State (2006 SCMR 1707 ) at page 1712 held as under:- "Had P.W.9 been present on the spot, he was not likely to be spared because the number of injuries on the person of deceased show that at least eighteen rounds were fired. It only shows the degree of venom the killer had for the deceased."
We are also guided by the binding judgment of the August Supreme Court of Pakistan passed in the case of Mst.
Rukhsana Begum & others v . Sajjad & others (2017 SCMR 596 ) where at page 601 it was observed as under:- "Another intriguing aspect of the matter is that, according to the FIR, all the accuse d encircled the complainant, the PWs and the two deceased thus, the apparent object was that none could escape alive. The complainant being father of the two deceased and the head of the family was supposed to be the prime target. In fact he has vigorously pursued the case against the accused and also deposed against them as an eye witness. The site plan positions would show that, he and the other PWs were at the mercy of the assai lants but being the prime target even no threat was extended to him. Blessing him with unbelievable courtesy and mercy shown to him by the accused knowing well that he and the witnesses would depose against them by leaving them unhurt, is absolutely unbelievable story . Such behavior , on the part of the accused runs counter to natural human conduct and behavior explained in the provision of Article 129 of the Qanun-e-Shahadat, Order 1984, therefore, the court is unable to accept such unbelievable proposition."
15. We have also descried that despite the fact that the matter was reported to the police at 12.00 p.m., when the oral statement (Exh.CD) of Muhammad Riaz (PW-2) was reduced into writing by Zia Akhtar SI (CW-5), the postmortem examination on the person of the deceased was conducted after a delay of about five and half hours from the time of recording of the oral statement (Exh.CD). Dr. Muhammad Idrees (PW.-1), who on 31.07.201 1 conducted the postmortem examination of Muhammad Ijaz son of Haji Allah Bakh sh (deceased) opined about the probable duration of time between death and post mortem as 7 to 8 hours. It has been repeatedly held by the August Supreme Court of Pakistan that such delay is reflective of absence of witnesses and the sole purpose of causing such delay is to procure the presence of witnesses and to further advance a false narrative to involve any person. The August Supreme Court of Pakistan in the case of "Khalid alias Khalidi and two others vs. The State" ( 2012 SCMR 327 ) has held as under: "The incident in the instant case took place at 2.00 a.m, FIR was recorded at 4/5 a.m, Doctor Muhammad Pervaiz medically examined the injured person at 4.00 a.m. but conducted the post mortem examination of the deceased at 3.00 p.m i.e. after about ten hours, which fact clearly shows that the FIR was not lodged at the given time" .
The August Supreme Court of Pakistan in the case of "Mian SOHAIL AHMED and others vs. The State and others" (2019 SCMR 956 ) has held as under: "According to the Doctor (PW-10), who did the post-mortem examination, the dead-body of the deceased was brought to the mortuary at 11:15 a.m. on 01.9.2006 and the post-mortem examination took place at 12 noon after a delay of 15 hours. This delay in the post-mortem examination, when the occurrence was promptly reported at 8:45 p.m. and formal FIR was registered at 9.00 p.m. on 31.8.2006 gives rise to an inference that the incident was not reported as stated by the prosecution"
The August Supreme Court of Pakistan in the case of "MUHAMMAD RAFIQUE alias FEEQA vs. The State"
(2019 SCMR 1068 ) has held as under: "More importantly , the only person who can medically examine the dead body during the said police custody of the dead body is the medical officer , and that too, when the same is handed over to him by the police for its examination. For the purposes of the present case, it is crucial to note that, at the time of handing over a dead body by the police to the medical officer , all reports prepared by the investigating office r are also to be handed over in order to assist in the examination of the dead body .
10. Thus, once there is suspicion regarding the death of a person, the following essential steps follow: firstly , there is a complete chain of police custody of the dead body , right from the momen t it is taken into custody until it is handed over to the relatives, or in case they are unknown, then till his burial; secondly , post mortem examination of a dead person cannot be carried out without the authorization of competent police officer or the magistrate; thirdly , post mortem of a deceased person can only be carried out by a notified governme nt Medical Officer; and finally , at the time of handing over the dead body by the police to the Medical Officer , all reports prepared by the investigating officer are also to be handed over to the said medical officer to assist his examination of the dead body .
11. It is usually the delay in the preparation of these police reports, which are required to be handed over to the medical officer along with the dead body , that result in the consequential delay of the post mortem examination of the dead person . To repel any adverse inference for such a delay , the prosecution has to provide justifiable reasons therefor , which in the present case is strikingly wanting."
16. We have also marked with concern that in the Post Mortem Report (Exh.P A) , the mouth of the deceased has been stated to be open, which clearly shows that the dead body was not attended to by his brothers as claimed. Dr . Muhammad Idrees (PW -1) during cross-examination stated as under:- " It is correct that when dead body was brought before me after 7-8 hours the mouth of the deceased was open. It is correct that it was a tradition in Pakistan that after the death, people immediately closed the eyes and mouth of the deceased. Possibility cannot be rule out that the deceased remained unattended."
However , the stance set up by the prosecution in the present case is that Muhammad Riaz (PW-2) and Imtiaz (PW- 3) , brothers of the deceased, were present at the time of his death, and had remained with the dead body . The mouth of the deceased was found open at the time of postmortem examination, thus, if the witnesses were present then, at least after the death, as is a cons istent practice of such close relatives, they would have closed mouth of the deceased on his expiry. Thus, the open mouth of the deceased forces a hostile interpretation against the prosecution's version regarding the presence of the witnesses at the place and time of occurrence. This fact by itself indicates that none was present with the deceased till his death. We have also noticed that the dead body of the deceased was identified by Nazir Ahmad ( not produced) and Muhammad Ismail (PW-6) and not by Muhammad Riaz (PW-2) and Imtiaz (PW-3) , brothers of the deceased. Similarly a perusal of the inquest report (Exh.PA/3) also shows that the eye witnesses namely Muhammad Riaz (PW-2) and Imtiaz (PW-3) , brothers of the deceased were not mentioned as being present at the place of occurrence at the time of preparation of the said inquest report (Exh.PA/3) by Zia Akhtar, SI (CW 5). The August Supreme Court of Pakistan in the case of "MUHAMMAD RAFIQUE alias FEEQA vs. The State" (2019 SCMR 1068) has held as under: "What has further irked this Court is that in column No. 9 of the Marg Report (Ex.PW9/1), and even in the Post Mortem Report (Ex.PW -10/A), the mouth of the deceased has been stated to be open, which clearly indicates that the dead body was not attended to by his close relatives after being pronounced dead. However , the stance set up by the prosecution in the present case is that Arshad Ali - the brother , and Nazir Ahmad - the uncle of the deceased Muhammad Azam were present at the time of his death, and remained with him, even thereafter . Thus, the said posture of the deceased raises an adverse inference against the prosecution's version regarding the presence of the said persons at the place and time of occurrence."
17. We have also observed that Dr. Muhammad Idrees (PW-1) opined that at the time of postmortem examination rigor mortis was developed . Before proceeding any further , it would be advantageous 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 tempera te climate. Similarly , the reverse process with which rigor mortis disappears is called algor mortis . In support of duration required to devel op rigor mortis , an extract from "The Principles And Practice Of Medical Jurisprudence " by Alfred Swaine Taylor ,MD , 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" , has declared a similar duration for rigor mortis to develop. Occurrence statedly took place at 10.30 a.m. whereas the autopsy was conducted at 5.30 p.m. development of complete rigor mortis on the body of the deceased in the hot weather of month of July, contradicts the time of occurrence deposed by the witnesses. In the month of July, development of rigor mortis within such short span of time is implausib le and the occurrence does not appear to have taken place at the point of time mentioned by the witnesses. The August Supreme Court of Pakistan in the case of "Noor Ahmad vs. The State and others " (2019 SCMR 1327 ) has held as under: "Occurrence statedly took place at 10.00 a.m. whereas the autopsy was conducted at 5.00 p.m. development of complete rigor mortis on the body of a young lady in hot weather, belies point of time of assault given in the crime report".
The August Supreme Court of Pakistan in the case of Asad Rehmat vs. The State and others " (2019 SCMR 1156) has held as under: "Occurrence, statedly, took place at 2.00 p.m., autopsies started 4.30 p.m., concluded at 9.00 p.m. Muhammad Hayat was examined first; the medical officer noted rigor mortis. Same is the case with other corpses. In the month of March, development of rigor mortis within such short span of time is mind boggling; occurrence does not appear to have taken place at the point of time mentioned in the crime report."
In the aftermath of above-discussion, we are swayed to hold that time of occurrence as deposed to by the eyewitnesses is not free from uncertainty .
18. We have also noted the dimensions of the apertures of the entry woun ds received by the deceased.
Muhammad Ijaz (deceased) received six entry wounds on his person. Dr. Muhammad Idrees (PW-1) during cross- examination stated as under:- " The injury (sic) No. 3 and 4 are of the same size and the others are dif ferent to each other ."
Dr. Muhammad Idrees (PW-1) observed the aperture of injury No.1 as 2cm x 1 cm, aperture of injury No.3 as 1cm x 0.5 cm, aperture of injury No.5 as 1 x 0.5 cm, aperture of injuries No.7 , 9 and 10 as 0.5 cm x 0.5 cm. As per the witnesses Muhammad Riaz (PW-2) and Imtiaz (PW-3) all the appellants were armed with similar weapons i.e pistols with .30-bore. The apertures of the entry wounds as observed by Dr. Muhammad Idrees (PW-1) are massively diverse hence rulling out the possibility of the use of same weapons i.e pistols with .30-bore by all the appellants as suggested by the witnesses . The August Supreme Court of Pakistan in the case of "Asad Rehmat vs. The State and others " (2019 SCMR 1 156) has held as under: "The most intriguing aspect of the prosecution case is dimension of injuries received by the deceased. Zafar Iqbal, deceased had three wounds of entry on his person measuring 5 x 3.5 c.m., 2.5 x 2.5 c.m. and 3 x 3 c.m. Abdul Haq was noted with two entry wounds measuring 2.5 x 0.1 c.m. and .5 x .5 c.m. Muhammad Sarwar had two entry wounds measuring 2.5 x 2.5 c.m. and another with multiple entries within the radius of 8 x 8 c.m. Muhammad Hayat, deceased was noted with five entry wounds; injuries on left side of face and head were 14 inch x 10 c.m. it was a crush fire arm wound, destroying left eyeball completely . Next is an entry wound on left hand measuring 6 x 5 c.m. There are two wounds of entry each 1 x 1 c.m. while other 1% x 1%. These apertures, vastly different, unambiguously rule out use of single weapon and ammunition".
19. Learned Deputy Prosecutor General alongwith the learned counsels for the complainant have laid much stress on the promptitude in reporting the matter to the police. Zia Akhtar , SI (CW-5) reduced into writing the oral statement of the complainant Muhammad Riaz (PW-2) while being present at Pull Dawood . Muhammad Riaz (PW- 2), while appearing before the learned trial court, did not support the fact that he got recorded his statement to Zia Akhtar , SI (CW-5) at Pull Dawood . This proves that the said oral statement reduced into writing (Exh. CD) is just a compromised and a fake document. We have also noted that despite the disapproval of the August Supreme Court of Pakistan, the same method was adopted in this case also that when Zia Akhtar, SI (CW-5) was present at Pull Dawood on patrolling duty, Muhammad Riaz (PW-2) appeared and got recorded his statement . The August Supreme Court of Pakistan in the case of Mst. Rukhsana Begum & others v. Sajjad & others (2017 SCMR 596) observed at page 601 as under: "In the ridder to the FIR, the Investigating Officer has mentioned that the complaina nt Muhammad Faazal met him somewhere in the way while proceeding to the police station. In past, it had becom e routine practice of the police that indeed in such like crimes, the FIR/w ritten complaints were being taken on the crime' s spot after preliminary investigation, however , after this court had disapproved this practice, they have invented a new way of misleading the court of law because invariably in every second or third case, same and similar practice is adopted.
20. Learned District Prosecutor General has also relied upon the recoveries of pistols (Exh.C1 and EXh.C2) made from the appellants namely Liaqat and Ghulam Abbas . The said recoveries of pistols (Exh.C1 and EXh.C2) made from the appellants namely Liaqat and Ghulam Abbas cannot be relied upon as the Investigating Officer of the case, did not join any witness of the locality during the recoveries which was in clear violation of section 103 Cr.PC and therefore cannot be used as incriminating evidence against the appellant, being evidence which was obtained through illegal means and is hence hit by the exclusionary rule of evidence. The august Supreme Court of Pakistan in the case of "Muhammad Ismail and others Vs. The State" ( 2017 SCMR 898) at page 901 has held as under:- "For the above mentioned recovery of weapons the prosecution had failed to associate any independent witness of the locality and, thus, the mandatory provisions of section 103, Cr .P.C. had flagrantly been violated in that regard."
Furthermore the said recovered pistols (Exh.C1 and EXh.C2) were never sent to the office of Punjab Forensic Science Agency , Lahore for their analysis. In absence of any such report, the said recoveries are inconsequential.
Additionally Zia Akhtar , SI (CW-5), the Investigating Officer of the case, admitte d during cross-examination as under:- "It is correct that in my investigation, I found that only Saeed Ahmad accused since P.O fired upon Muhammad Ijaz.
It is correct that during the investigation, I found that alleged pistol recovered from the accused namely Liaqat and Ghulam Abbas were not used in the occurrence."
21. Learned Deputy Prosecutor General and learned counsel for the complainant have also relied upon the evidence of motive and submitted that it corroborated the ocular account. It is an admitted rule of appreciation of evidence that motive is only a corroborative piece of evidence and if the ocular account is found to be unreliable then motive has no evidentiary value and lost its significance. As all the other pieces of evidence relied upon by the prosecution in this case have been disbelieved and discarded by us, therefore, the appellants' conviction cannot be upheld on the basis of motive alone. Even otherwise motive is a double-edged weapon which can also be the reason for the false involvement of the accused.
Reliance is placed on the case of MUHAMMAD ASHRAF alias ACCHU Vs. The State" (2019 SCMR 652) wherein the august Supreme Court of Pakistan has held as under:- "The motive is always a double-edged weapon. The complainant Sultan Ahmad (PW9) has admitted murder enmity between the parties and has also given details of the same in his statement recorded before the trial court. No doubt, previous enmity can be a reason for the appellant to commit the alleged crime, but it can equally be a reason for the complainant side to falsely implicate the appellant in this case for previous grouse."
22. Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of Liaqat son of Manzoor , Ghulam Abbas son of Elahi Bakhsh, Aslam son of Zahoor , Muhammad Shafi son of Sher Muhammad alias Khandou and Ismail son of Muhammad Ali (appellants), in the present case. It is settled principle of law that for giving benefit of doubt it is not necessary that there should be so many circumstances rather if only a single circumstance creating reasonable doubt in the mind of a prudent person is available then such benefit is to be extended to an accused not as a matter of concession but as of right. The august Supreme Court of Pakistan in the case of "Muhammad Mansha Vs. The State" (2018 SCMR 772 ) has enunciated the following principle: "Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345 ), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221 ), Muhammad Akram v . The State ( 2009 SCMR 230 ) and Muhammad Zaman v . The State ( 2014 SCMR 749 )."
Reliance is also placed on the judgment of the august Supreme Court of Pakistan "Muhammad Akram Vs. the State" (2009 SCMR 230 ) in which it has been observed in paragraph No.13 of page 236 as infra: "It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."
23. For what has been discussed above, Criminal Appeal No.262 of 2015 lodged by Liaqat son of Manzoor , Ghulam Abbas son of Elahi Bakhsh, Aslam son of Zahoor , Muhammad Shafi son of Sher Muhammad alias Khandou and Ismail son of Muhammad Ali (appellants) is accepted and the conviction and sentence of the appellants awarded by the learned trial court through the impugned judgment dated 30.04.2015 is hereby set-aside. Liaqat son of Manzoor , Ghulam Abbas son of Elahi Bakhsh, Aslam son of Zahoor , Muhammad Shafi son of Sher Muhammad alias Khandou and Ismail son of Muhammad Ali (appellants) are directed to be released forthwith if not required in any other case.
24. Murder Reference is answered in Negative and the death sentence of Liaqat son of Manzoor is Not Confirmed .