Farooq Haider , J. Through this single consolidated judgment Criminal Appeal No.2190 of 2016 filed by Waziristan Khan and Bostan Khan (appellants) against judgment dated 08.12.2016 passed by learned Additional Sessions Judge, Mianwali, whereby they have been convicted and sentenced under section 302(b)/34 PPC to death as Tazir each for committing qatl-e-amd of Dariya Khan and Zait Ullah Khan with payment of compensation Rs.10,00,000/- each to the legal heirs of deceased under Section 544-A Cr.P.C, amount of compensation has been ordered to be recovered as arrears of land revenue and in default thereof to furthe r undergo six months S.I each, and Murder Reference No.02 of 2017 sent by learned trial Court under Sectio n 374 Cr.P.C. for confirmation of death sentence awarded to the appellan ts through the aforementioned impugned judgment, are being decided together because both these matters have arisen out of one and same judgment.
2. Initially , complainant Rafi-Ullah got registered case FIR No.32 of 2014, on 16.06.2014, at Police Station: Bhangi Khel, Tehsil Isakhel, District Mianwali in respect of offences under Sections 302, 34 PPC (Ex.PK) alleging therein that father of the complainant namely Dariya Khan deceased was driver of his own tractor and now a days, he used to plough the land of Muhammad Sabir in Wandha Sher Dil and after completion of work, he used to come back to his house after parking tractor at Wandha Sher Dil; on 16.04.2014, Zait Ullah brother of the complainant while driving motorcycle No.9814/MIK, was taking his father Dariya Khan to Wandha Sher Dil; when they crossed the house of Irshad s/o Karam Khan and reached 50 yards ahead from said house , Waziristan, Bostan Khan and Badar Munir sons of Abdullah Khan all armed with Kalashnikovs came out of the bushes from right side, Badar Munir raised lalkara to my father that he would not be let alive; in the meanwhile , Waziristan, Bostan Khan both started firing with their Kalashnikovs and fires hit Dariya Khan and Zait Ullah Khan at different parts of their bodies, they fell down from the motorcycle; the accused persons after occurrence fled away from the spot and due to fear the complainant did not follow the accused-persons; that Sabir Khan and Kareem Khan who at some distance, were going to Munawar Khel for purchasing house hold articles, came there, saw the occurrence and attended Dariya Khan and Zait Ullah brother of the complainant, who succumbed to their injuries at the spot.
The motive behind the murders of Dariya Khan and Zait Ullah was previous enmity of murder between the parties; that all three accused persons in furtherance of their common intention caused the death of Dariya Khan and Zait Ullah deceased. The complainant left Sabir Khan and Karim Khan with dead bodies of deceased Dariya Khan and Zait Ullah to guard and went to the police station for registration of FIR Ex.P .K.
3. Both appellants Waziristan and Bostan Khan joined investigation, their arrest was deferred; after investigation, they were found not involved in the occurrence and thus let off/exonerated; their names were placed in column No.2 of the report prepared and submitted under section 173 Cr.P.C.; then, after about 5 months complainant filed private complaint (Ex.PL) in the Court.
4. The appellants Waziristan Khan and Bostan Khan in the complaint case, were formally charge sheeted under Sections 302, 34 PPC to which they pleaded not guilty and claimed trial, whereas Badar Munir was declared proclaimed of fender and his perpetual warrants of arrest were issued vide order dated 06.08.2014.
The complainant produced as many as nine witnesses to prove the charge against the accused whereas Muhammad Anwar , Inspector (Retired) was examined as CW-1. Medical evidence has been furnished by Dr. Kamran (PW-5), who conducted post-mortem examination over the dead bodies of Dariya Khan and Zait Ullah; Muhammad Anwar , Inspector (CW-1) conducted investigation of this case, whereas complainant himself as (PW-7) and Sabir Khan (PW -8) have furnished the ocular account.
Thereafter statements of the appellants were recorded under Section 342 Cr.P.C. in which they refuted the allegations levelled against them. However , neither they opted to appear as their own witnesses under Section 340(2) Cr .P.C. nor produced any evidence in their defence.
The learned trial court after conclusion of the trial has convicted and sentenced the appellants as mentioned above through the impugned judgment dated 08.12.2016.
5. Learned counsel for the appellants has submitted that convictions recorded and sentences awarded to the appellants through impugned judgment are against the law and facts; learned trial Court could not appreciate material available on the record; impug ned judgment is result of misreading and non-reading of evidence; therefore, the same is liable to be set aside.
6. Conversely learned Deputy Prosecutor General assisted by learned counsel for the complainant has vehemently controverted the contentions raised by the learned counsel for the appellants and supported the impugned judgment.
7. Arguments heard. Record perused.
8. It has been noticed that FIR (Ex.PK) in this case was got recorded by Rafi Ullah Khan (complainant/PW -7) while appearing in the Police Station before Muhammad Anwar Khan, Inspector/SHO, although in the caption of the FIR, time and date of occurrence is mentioned as 05:30 a.m. on 16.06.2014 whereas time of reporting the matter has been mentioned as 06:15 a.m. but in the entire body of statement (Ex.PK) no time of occurrence has been mentioned at all; private complaint (Ex.PL) was filed by the complainant after more than five months of the occurrence/registration of the case through FIR, mentioned above; although in the said private complaint, the complainant with dishonest intention has mentioned the time of occurrence as "morning" yet still he has not mentioned the exact time of occurrence in the same, he also clarified himself as eyewitness of the occurrence; similarly in the facts incorporated in the Inquest Reports of Darya Khan and Zeet Ullah (Ex.PD & Ex.PG, respectively) time of occurrence is not mentioned; post-mortem examination over dead body of Darya Khan was conducted at 12:20 p.m. on 16.06.2014 whereas on the dead body of Zeet Ullah at 01:10 p.m. on 16.06.2014, however , in both post-mortem examination reports (Ex.PB & Ex.PE) and in the statement of Dr. Muhammad Kamran (PW-6), on the one hand probable time between death and post-mortem has been mentioned as five to six hours but on the other hand rigor mortis on the dead bodies of both deceased persons have been found as "developed ".
As far as "opinion of expert " is concerned, it should be based upon the settled principles on the subject and relevant treatises but if it is otherwise then same has to be examined carefully on touchstone of relevant principles on the subject and treatises and if it has been found contrary to those, then it shall be taken as ipse dixit and Court shall make its opinion while preferring settled principles on the subject found in relevant treatises; in this case, on the one hand Dr. Muhammad Kamran (PW-5), who conducted post-mortem examination of both deceased persons, opined that probable time between death and post-mortem is five to six hours but on the other hand, he has categorically found that rigor mortis was "developed" . Since said opinion regarding duration of time between death and post-mortem is not tallying with the time usually consumed for reaching rigor mortis to "developed stage", therefore, it has been examined on the touchstone of the settled principles on the subject; as a matter of fact, rigor mortis means rigidity of death, it is a condition characterised by stiffening, shortening and opacity of the muscles which follow the period of primary relaxation. It is due to chemical changes involving the proteins of the muscle fibres and it marks the end of the muscle' s cellular or molecular life. The contractile element of the muscle consists of protein filaments of two types, viz, myosin and actin. They lie in interd igitating manner . In the relaxed state, the actin filaments interdigitate with the myosin filaments only to a small extent but when the muscle contracts, they interdigitate to a great extent. The principal factor concerned in the process of contraction and relaxation of the muscle is the presence of the enzyme ATP which is in high concentration in a resting muscle. Its production and utilisation are constantly balanced in life. After death, ATP is resynthesised for a short time depending upon the glycogen available locally , but after this glycogen is used up, ATP cannot be resynthesised.
This leads to the fusion of myosin and actin filaments into a dehydrated stiff gel resulting in the condition known as rigor mortis. During rigor mortis, the reaction of the muscle changes from slightly alkaline to distinctly acid owing probably to the formation of lactic acid. Rigor mortis persists until autolysis of myosin and actin filaments occurs as a part of putrefaction . Every muscle in the body , voluntary and involuntary , takes part in the process, including the musculature of the heart and blood vessels, the iris of the eye, the platysma of the skin, and the dartos of the scrotum. According to Parikh"s Textbook of Medical Jurisprudence and Toxicology , rigor mortis first appears in involuntary muscles and then in voluntary muscles. It is not dependent on the nerve supply as it develops in paralysed limbs also. It is tested by gently bending the various joints of the body . In the involuntary muscles, rigor mortis appears in the heart within a hour after death. In the volunta ry muscles, the sequence is as follows: Rigor mortis first appears as a rule in the muscles of the eyelids (3-4 hours), and then in the muscles of the face (4-5 hours), neck and trunk (5-7 hours), followed by muscles of the upper extremities (7-9 hours) and then the legs (9-11 hours). The last to be affected are the small muscles of the fingers and toes (11-12 hours). When rigor mortis is thus established, the jaw, neck, and extremities become fixed in position with the arms bent at the elbows and the legs at the knees and hips, and movements at the joint are possible only within a very limited range. The rigidity generally passes off, in the same order in which it occurred, due to autolysis of muscle proteins. In India, rigor mortis commences in 2-3 hours after death, takes about 12 hours to develop from head to foot, persists for another 12 hour, and takes about 12 hours to pass off. Thus, the presence and extent, or absence of rigor mortis helps to provide a rough estimate of the time since death. As for example, if rigor mortis has not set in, the time since death would be within 2 hours and if it has developed, the time since death would be within about 12-24 hours. The factors which influence rigor mortis include age, health and mode of the death also and according to Parikh"s Textbook of Medical Jurisprudence and Toxicology , the onset of rigor is later and the duration longer in the strong muscular person and similarly in cases of sudden death, in healthy adults, a late onset and a long duration is usual. In Modi' s Medical Jurisprudence & Toxicology , it has been categorically mentioned that in general, rigor mortis sets in one to two hours after death, is developed in about twelve hours.
Perusal of columns No.16 and 17 of the Inquest Report of Darya Khan (Ex.PD) reflects that it was dead body of healthy person; similarly perusal of colum ns No.16 and 17 of the Inquest Report of Zeet Ullah (Ex.PG) reflects that it was dead body of young and healthy person; post-mortem reports of both the deceased and statement of Dr. Muhammad Kamran (PW-5) clearly shows that death of both deceased was immediate after receipt of injuries hence it was sudden death, therefore, according to settled principles of Medical Jurisprudence, onset of rigor mortis was later and its duration was longer . Thus, the opinion given by the Dr. Muham mad Kamran (PW-5) regarding time between death and post-mortem as five to six hours is mere ipse dixit and not according to settled principles of Medical Jurisprudence on the subject, therefore, when doctor has himself observed in both post-ortem examination that rigor mortis was "developed"; furthermore both dead bodies were of healthy persons and death was "just after receipt of the injuries i.e. sudden", then, by no stretch of imagination , time between death and post- mortem of the deceased persons can be considered as less than twelve hours. Therefore, on the one hand by not mentioning exact time of occurrence in the FIR, prosecution failed to narrate time of occurrence and on the other hand, medical evidence has negated that occurrence took place in the morning because developed condition of rigor mortis , in peculiar facts and circumstances of the case suggests that occurrence took place during the mid- night; hence, when time of occurrence has not been proved by the prosecution, then entire superstructure of the case of prosecution has fallen like house of cards and prosecution itself has smashed its case.
As far as ocular account is concerned, same has been provided by Rafi Ullah Khan (PW-7) but perusal of FIR reflects that presence of the complainant at the time and place of occurrence has not been mentioned in clear words rather same is ambiguous; his house and any place of job was not at or near/around the place of occurrence, as per site plan of the place of occurrence (Ex.P A); his house was at a distance of one kilometer from the place of occurrence; in this regard, relevant portions from the statement of Rafi Ullah Khan (PW-7) are being reproduced:- "I cannot tell that when my father offered Fajar prayer by what time on the day of occurrence. I cannot tell by what time Zait Ullah my brother offered Fajar prayer at the time of occurrence"
"I cannot tell that when my deceased father and brother left the house because I had left the house before their departure"
"There is a distance of one kilometer between my house and place of occurrence"
Following portions of his statement are also relevant:- "It is correct that accused persons appeared before the police themselves and remained under interrogation for about 15 days"
"It is correct that police had declared the accused persons innocent during investigation. It is correct the accused persons were not sent to jail. It is correct that police did not recover anything from the accused persons in the present case"
"It is correct that private complaint was filed after about five months of the lodging of FIR. It is correct that I did not file any application alongwith the complaint before any higher officer of the police"
According to own claim of the complainant, he was having equal enmity with the accused persons like his father and brother (both deceased of the case) and if he was available at the place of occurrence, then why spared by the assailants; though the complainant tried to give colour to his version in this regard that he alongwith Sabir Khan (PW-8) and Karim Khan were going to purchase household articles when they saw the occurrence but perusal of site plan of the place of occurrence (Ex.P A) clearly reflects that neither any market nor shop was available at or near/around the place of occurrence, even otherwise it was not mentioned therein that any passage was leading to any such market/shop; therefore, he is a chance witness, who could not establish his presence at the place of occurrence through any corroboratory piece of evidence.
Similarly Sabir Khan is brother of Darya Khan and he was employee in Pak Army during the days of occurrence, therefore, for proving his presence at the time, day and place of occurrence, he had to produce any proof of his leave for the said day or days but he could not produce any such proof; his house is not near or around the place of occurrence according to site plan of the place of occurrence (Ex.P A) and he intentionally did not opt to depose about distance between his house and place of occurrence; in this regard, relevant portion from his statement is being reproduced: - "I cannot tell the distance between my house and place of occurrence, however , it takes ten minutes on foot to reach the place of occurrence from my house"
In view of above, he is also a chance witness and his testimony can only be believed if same is corroborated by independent and strong corroboratory piece of evidence but same is lacking in the case. Furthermore when Sabir Khan is brother of Darya Khan (deceased) and having equal enmity with the accused persons then there was no reason with the accused persons for sparing him to become witness against them. Therefore, ocular account produced by the prosecution has neither been found as truthful nor reliable, hence, same is hereby discarded.
As far as medical evidence is concerned, it is trite of law that medical evidence is mere supportive/confirmatory type of evidence; it can tell about locale, nature, magnitude of injury and kind of weapon used for causing injury but it cannot tell about identity of the assailant who caused the injury; therefore, same is also of no help to the prosecution in the case, in this regard, case of "SAJJAN SOLANGI versus The STATE" (2019 SCMR 872) can be safely referred. However , in this case, medical evidence has negated the ocular account vis-a-vis time of death.
Nothing has been recovered from the appellants in this case.
As far as motive is concerned, it is mere corroboratory piece of evidence and when ocular account has not been believed, then it loses its significance; furthermore, motive is a double edged weapon and same can also be considered as reason for false involvement of the appellants.
It is well settled principle of law that single dent in case of prosecution is sufficient for acquittal, guidance in this regard has been sought from case of "Tariq Pervez versus The State" (1995 SCMR 1345 ), "Mst. Asia Bibi versus The State and others" (PLD 2019 SC 64) and "Abdul Jabbar and another versus The State" (2019 SCMR 129 ).
9. In view of above, we have reached at the conclusion that prosecution has been failed to prove its case against the appellant, therefore, there is no need to discuss defence version.
10. In view of, what has been discussed above, Crl. Appeal No.2190 of 2016 , filed by Waziristan Khan and Botan Khan is allowed; conviction and sentences recorded against the appellants through impugned judgment dated 08.12.2016 are hereby set aside. Appellants are acquitted of the charge, they be released from jail forthwith, if not required in any other case.
Murder Reference No.02/2017 is answered in negative and death sentence awarded to Waziristan Khan and Bostan Khan is not confirmed.