Ch. Abdul Aziz, J. Muhammad Darvaish, Ahmad Khan and Muhammad Khan (appellants) along with two other co- accused, namely , Imdad Hussain and Ijaz Ahmad were tried by learned Additio nal Sessions Judge, Depalpur , District Okara in private complaint titled as "Mazhar Fareed v. Ahmad Khan & 5 others" for the offence under sections 302,324,148 & 149 PPC arising out of case FIR No.737/2010 dated 05.12.2010 registered under sections 302,324,148 & 149 PPC at Police Station Haveli Lakha, District Okara. The learned trial court vide judgment dated 26.05.2016 while acquitting co-accused Imdad Hussain and Ijaz Ahmad proceeded to convict and sentence the appellants in the following terms:- Under section 302 (b) PPC to suffer death sentence for the committing qatl- i-amd of Gohar Fareed and Muhammad Tufail on two counts. They were also directed to pay compensation of Rs.5,00,000/- each to the legal heirs of each of deceased under section 544-A, Cr.P.C. and in default whereof to undergo simple imprisonment for six months each.
Challenging their conviction and sentence, Muhammad Darvaish, Ahmad Khan and Muhammad Khan (appellants) filed Criminal Appeal No.509-J of 2016 , whereas the trial court sent reference under section 374, Cr.P.C. which was numbered as Murder Reference No.315 of 2016 for the confirmation or otherwise of death sentence awarded to the afore-mentioned appellants. Both these matters are being disposed of through this single judgment.
2. Briefly stated the case of prosecution as unfolded by complainant Mazhar Fareed (PW.1) in FIR (Exh.PL) is to the effect that on 05.12.2010 at night he along with his son Gohar Fareed, Muhammad Tufail, Zafar Iqbal, slept at his Dhari to guard cattle and lamp was lightening over there; that at about 3:45 a.m., Ahmad Khan, Muhammad Darvaish, Imdad Hussain, Muhammad Khan son of Ghulam Fareed, all armed with guns .12 bore, Muhammad Khan and Ijaz Ahmad both armed with pistols .12 bore along with three unknown persons came there; that Muhammad Khan exhorted to teach a lesson for committing the murder of his brother , upon which Ahmad Khan made fire shot with his gun .12 bore which landed upon the abdomen of Gohar Fareed; that Darvaish Ahmad fired shot with his gun .12 bore which also hit on the abdomen of Gohar Fareed; that Muhammad Khan son of Muhammad Yousaf made fire shot with his gun .12 bore which hit Muhammad Tufail on his abdomen; that Imdad Hussain also fired with his gun .12 bore which hit Muhammad Tufail on his left elbow; that Ijaz Ahmad made fire shots from his pistol which landed on right and left thigh of Zafar Iqbal; that Muhammad Khan son of Ghulam Fareed made fire shot with his gun .12 bore which landed on the abdomen of Muhammad Tufail; that upon hue and cry Shabbir Ahmad and Muhammad Riaz attracted to the spot and witnessed the occurrence in the light of lamp; that Gohar Fareed and Muhammad Tufail succumbed to the injuries at the spot; that all the accused decamped from the spot while brandishing their weapons. Motive behind the occurrence statedly was that 1/4 years prior to the occurrence, Nazar Fareed was murdered and son of the complainant, namely , Gohar Fareed was challaned in that case.
3. The law was set into motion on the oral statement (Exh.P A) of Mazhar Fareed (PW.1) which he made before Muhammad Yaqub SI (CW.5) at Pull Molia Chishti. The statement (Exh.P A) was sent to the police station for the registration of formal FIR through Zafar Iqbal 86/C. Subsequent thereto, he visited the place of occurrence, prepared rough site plan (Exh.CW .5/A), secured blood stained earth of deceased Muhammad Tufail and Gohar Fareed as well as crime empties (P.1/1-2) vide memos Exh.PD, Exh.PE & Exh.PF . He also prepared injury statements of Muhammad Tufail and Ghulam Fareed (Exh.CW .5/C & Exh.CW .5/D) and their inquest reports (Exh.CW .5/E & Exh.CW .5/F). He also drafted applications (Exh.CW .5/G & Exh.CW .5/H) for the postmortem examination of the deceased persons and handed over the dead bodies to Faqeer Muhammad 279/C for escorting them to RHC Haveli Lakha. Muhamma d Yaqub SI (CW.5) arrested Ahmad Khan, Muhammad Darvaish and Muhammad Khan (appellants) on 04.01.201 1 who on 15.01.201 1 made separate disclosures and in pursuance thereof led to the recovery of their respective .12 bore guns (P.8, P.9 & P.10) which were taken into possession vide memos Exh.PH, Exh.PJ and Exh.PK respectively .
4. The police declared Imdad Hussain, Ijaz and Muhammad Khan not involved in this case and feeling dissatisfied from such investigation, Mazhar Fareed (PW.1) filed private complaint upon which the trial was held. Prosecution in order to prove its case against the appellants produced four PWs including Mazhar Fareed (PW.1) and Riaz Ahmad (PW.2), who narrated the eyewitness account of the occurrence. Learned trial court also examined five CWs including Dr.Ubaid Ullah Farooq (CW.2) who furnished medical evidence and Muhammad Yaqoob SI (CW.5) who investigated the case. The remaining witnesses, more or less, were formal in nature.
5. Dr. Ubaid Ullah Farooq (CW.2) remained posted with Dr.Shuja-ur- Rehman (since dead). According to Dr. Ubaid Ullah, on 05.12.2010, Dr. Shuja ur-Rehman conducted the medico legal examination of Zafar Iqbal and noted the following injuries:- (1). Three lacerated wound diameter 1.5 x 1 cm into going deep and blackening on middle side of middle of right thigh in area of 7.5 cm entry wound.
The wounds have inverted margins. The probe passed through high entry and exit wound.
Three lacerated wound of diameter about 1 x 0.8 cm everted margins in area of 6 x 5 cm on back of middle of right thigh (exit wound of injury No.1).
(2). A lacerated wound 4 x 3 cm diameter , blackening, superficial skin deep only on front of lower part of left thigh, 16 cm above from left knee joint.
(3). A lacerated wound 1 x 1 cm, blackening, inverted margins into deep going on anterolatral side of middle of left thigh 20 cm above from left knee joint entry wound. A lacerated wound 1.5 into 1 cm everted margins on anteromedial side of middle of left thigh (exit wound of injury No.3). The probe passed through thigh entry and exit wound.
(4). A superficial lacerated wound 3 x 2 cm into deep blackening on middle side of upper of left thigh 25 cm from left knee joint.
On 05.12.2010 at about 2:00 p.m. Dr. Shujah-ur-Rehman conducted the autopsy of Muhammad Tufail and observed the following injuries:-3 (1). 6 lacerated wound of diameter about 2 x 1.5 cm with inverted margins with blackening in area 17 x 15 cm on lower part of left side of abdomen (entry wound).
(2). A superficial lacerated wound 1.5 x 1 cm with skin deep blackening on left upper thigh on front side, 7 cm below from left antero superior , iliac spine (Ghair Jaifah Damiyah).
(3). A superficial lacerated wound 1.5 x 1.2 cm blackening with skin deep located on back of left upper for arm. 5 cm below of left elbow joint. (Ghair Jaifah Damiyah).
(4). A superficial lacerated wound 0.5 x 0.5 cm with mild blackening into skin deep on lateral side of left upper thigh, 8 cm below from injury No.2. (Ghair Jaifah Damiyah).
On the same day at about 2:00 p.m., Dr. Shujah-ur-Rehman also conducted the postmortem examination of Gohar Fareed and noted the following injury:- (1). 7 lacerated wound of diameter about 2 x 1.5 cm with blackening, some superficial deep along with inverted margins on right side of abdomen in area of 20 x 10 cm (entry wounds).
6. After the conclusion of prosecution evidence, the learned trial court examined the appellants under section 342, Cr.P.C. who in response to question "why this case against you and why PWs have deposed against you", pleaded their false implication on account of previous enmity . Since the detail reply of the appellants is available on record, hence, for the sake of brevity it is not being reproduced in the instant para. The appellants neither made statements under section 340 (2) of Cr.P.C. nor produced any evidence in their defence. On the conclusion of trial, the appellants were convicted and sentenced as mentioned above, hence, the instant appeal and murder reference.
7. It is contended on behalf of the appellants that the case in hand though apparently is arising out of a promptly lodged crime report, however , the perusa l of record reveals otherwise; that the two eyewitnesses who appeared before trial court miserably failed to prove their presence at the crime scene and both of them on account of peculiar facts of the case were proved to be chance witnesses, thus were not worthy of any reliance; that two other eyewitnesses of the occurrence who though were present at the spot, however, their evidence was withheld by the prosecution with nefarious design of suppressing the actual facts; that the ocular account is altogether belied by the medical evidence on account of contradictions arising therefrom; that though the case is arising out of night time occurrence but the prosecution miserably failed to prove the source of light so as to exclude the possibility of mistaken identification; that regarding the same occurrence private complaint was filed by the brother of Tufail deceased against altogether a different set of perpetrators; that both the eyewitnesses as per their own admission were inimically placed against the appellants; that testimony of both the eyewitnesses was disbelieved to the extent of Imdad and Ijaz who were ascribed the role of active participation in the crime and they were acquitted from the case; that in such circumstances the statements of eyewitnesses can only be made basis for upholding the conviction of the appellants if strongly supported and corroborated from other circumstances; that the prosecution failed to get any corroboration from the motive which was found to have no truth in it; that even the positive report of PFSA regarding the weapons recovered from Ahmad Khan and Muhammad Khan appellants is not worthy of any reliance on account of multiple discrepancies and that though a strong and reasonable doubt emerges from the plain view of the prosecution case, however, its benefit was not extended to the appellants.
With these submissions, it was urged that the appellants be acquitted from the case.
8. On the other hand, learned law officer assisted by learned counsel for complainant came forward with the submissions that the information of occurrence was conveyed to police within one hour of occurrence and such prompt reporting excludes the possibility of fabrication of facts and consultation etc; that all the three appellants are specifically nominated in the crime report and that too in reference to the roles performed by them during the occurrence; that the two eyewitnesses who appeared before the trial court were residents of the same vicinity , hence, their presence can in no manner be doubted; that the eyewitnesses of the occurrence, namely , Mazhar Fareed and Riaz Ahmad gave a confidence inspiring detail of the occurrence which was in conformity with the medical evidence; that though the occurrence took place in the night, however , since the source of light was reasonably explained by the prosecution, hence no inference adverse to the case of prosecution can be drawn therefrom; that even otherwise, both sides were well known to each other , hence, there was no question of any mistaken identification; that the prosecution case gets ample corroboration from the motive as well as from the report of PFSA, according to which the weapons recovered from Ahmad Khan and Muhammad Khan appellants were found matched with the crime empties secured from the spot and that since the appellants committed cold blooded murder of two persons, hence, deserve no mercy from this Court. With these submissions, it was prayed that the appellants' appeal be dismissed.
9. Arguments heard. Record perused.
10. A keen look of the record unveils that the case in hand pertains to an occurrence, having taken place on 05.12.2010 at about 3:45 a.m., during which two persons, namely , Gohar Fareed and Muhammad Tufail (deceased) lost their lives, whereas Zafar Iqbal and Shabbir Ahmad (injured) recei ved firearm injuries. The burden of these murders was placed on the shoulders of nine persons, out of whom six were nominated, whereas three were unknown. Out of the nominated accused persons, Ahmad Khan, Muhammad Darvaish and Muhammad Khan were real brothers, whereas Imdad and Ijaz were their nephews. We are not oblivi ous of the fact that the dilemma of false implication is unfortunately well embedded in our system of criminal investigation, prompting a litigant to implicate innocents along with guilty in homicide cases through tool of wider net. This menace calls for making appraisal of evidence in such cases with extreme guardedness.
11. The occurrence was witnessed by four persons, namely , Mazhar Fareed, Riaz Ahmad, Zafar Iqbal and Shabbir Ahmed, out of whom earlier two witnesses appeared during trial, whereas the remaining two were given up for various reasons. As per admitted facts, both the given up PWs i.e. Zafar Iqbal and Shabbir Ahmad received firearm injuries during occurrence, whereas Mazhar Fareed and Riaz Ahmad (PW.1 & PW.2) escaped unhurt. Shabbir Ahmad (injured) was given up as having been won over by the accused, whereas Zafar Iqbal (injured) was let off on account of being a deaf and dumb person. It is important to mention here that Shabbir Ahmad (given up PW) besides getting injured during occurrence, was also brother of one of the deceased, namely , Muhammad Tufail. To be precise, for establishing the guilt of perpetrators, nominated in the crime report (Exh.PL) and private complaint (Exh.PC), the prosecution banked upon the testimony of two eyewitnesses, namely, Mazhar Fareed and Riaz Ahmad (PW.1 & PW.2). From in depth scrutiny of record, it is found that both of them were related with Gohar Fareed (deceased) as father and maternal uncle. We are mindful of the fact that the testimony of a witness cannot be discredited merely on account of his relationship with deceased, however , if he is found locked in some rivalry or enmity of a long or short duration, personal vengeance or grudge arising out of some financial, political or severe family rift with the accused, he attains the status of interested or partisan witness. Since out of human frailty , it is expected that a witness entangled in abhorrence or grudge affair with his adversaries can tell lie to satisfy his grouse and can even go to the extent of implicating innocent persons in a crime , hence to attain credence, his testimony is required to be appraised with extreme circumspection and for that, matter is to be stringently evaluated on the touchstone of strong corroboratio n. In holding so, we are fortified from the observation of the Hon'ble Supreme Court of Pakistan expressed in the case titled as Umar Hayat and 3 others v. The State (1997 SCMR 1076 ) which is as under:- "It is a settled position of law that evidence of a partisan witness requires corroboration before the same is relied on for conviction. In the case of Muhammad Nawaz v. Abdul Khaliq and others (1971 SCMR 500) the prosecution witnesses were not only related inter se but they were also related with the dece ased and it was held that such evidence required some corroboration to ensure the witnesses were speaking the truth. "
It insinuates from record that for various reasons, the two eyewitnesses were having extreme strained relations with the appellants. Firstly , it is noticed that the appellants and one Nazar Faree d, were real brothers, whereas Mazhar Fareed (PW.1) was their step-brother . Nazar Fareed was murdered on 23.02.2009 for which FIR No.73/2009 was registered at Police Station Haveli Lakha against Amin, Ikram, Hassan, Shah Behram, Habib and Muhammad Hussain. However , during investigation, Gohar Fareed (deceased) was found by the police to be actual culprit and accordingly was arrested in the case. Muhammad Yousaf, who was the father of appellants as well as Mazhar Fareed (PW.1) was big landlord of the village having sizeable agricultural land holding, who alienated 15-acres each in the names of his sons. Subsequent to the afore-mentioned murder, Muhammad Yousaf out of annoyance with Mazhar Fareed (PW.1) further transferred six acres of land in the names of appellants and due to foregoing reason Mazhar Fareed (PW.1) felt aggrieved. The quantum of rancor, due to the transfer of above said six acres of land in the names of his step-brothers, was so extreme that Mazhar Fareed (PW.1) could not hide it even during cross-examination and stated as under:- "It is correct that due to said reason I had NARAZGI, against Ahmad Khan, Muhammad Khan and Darvaish. It is incorrect that, again said I do not know as to whether my father Yousaf still owns 19 acres of land in his name as I am not on speaking terms with him. I several times demanded from my father that I should also be given equal share as to my brothers Ahmad Khan, Muhammad Khan and Darvaish accused. My father always refused to me. "
From above, it manifests that Mazhar Fareed (PW.1) was inimically placed against appellants and such aspect makes him a partisan or interested witness.
12. It further spells out from record that crime scene was situated at a distance of 3 kilometers from the place of abode of both the eyewitnesses. In the days of occurrence, marriage ceremony of daughter of Mazhar Fareed, namely, Abida Bibi was in progress and on the eventful night, there was function of her Rasm-e-Hina. It will not be out of context to mention here that Abida Bibi was being married with Javed son of Mansha, who was none other than the nephew of Riaz Ahmad (PW.2). This fact gains more importance when seen in the context that Mazhar Fareed (PW.1) unambiguously admitted during cross-examination that the family of Javed along with Riaz (PW.1) had arrived in his house to celebrate the function which continued till late night. In such circumstances, the presence of both the eyewitnesses at a distance of 3 kilometers and that too, in a cattle shed on the pretext of guarding his animals appears to be a laboured story to justify presence at place of occurrence, more importantly when the services of Zafar Iqbal (injured) were hired for this very purpose. The meticulous examination of record gives a lead that the acclaimed presence of both eyewitnesses was not out of their routine, rather was a sheer coincidence. It needs no elaboration that presence of eyewitnesses at the spot is not to be inferred rather is to be proved by prosecution beyond scintilla of doubt. We have also taken note of the fact that in an occurrence, wherein two persons lost their lives and two others received firearm injuries from the weapons of common enemies, the eyewitnesses remained unhurt. In the absence of some confidence inspiring explanation regarding their presence at crime scene, the two witnesses are found by us to be chance witnesses and their testimony can safely be termed as suspect evidence. In arriving at such conclusion, we are enlightened from the case of Mst.Sughra Begum and another v. Qaiser Pervez and others (2015 SCMR 1142) wherein the Hon'ble Supreme Court of Pakistan 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."
13. From review of record, it emerged that narrators of ocular account, besides being chance and interested witnesses, also failed to satisfactorily explain the source of light regarding an occurrence, which took place on a dark-pitched and foggy night. The eyewitnesses claimed to have captured the visuals of occurrence in the light of a lamp, which was never secured during investigation. Muhammad Yaqoob SI (CW.5) candidly conceded that no source of light was shown by him in the site plan (Exh.CW.5/A) as it was not pointed out by the eyewitnesses. The omission to prove presence of light at the spot is of immense importance when seen in the context that on the eventful night, it was fog all around. Since this is an important aspect, hence a portion from the cross-examination of Muhammad Yaqoob SI (CW .5) is being reproduced which is as under:- "After about one and half hour I reached at the place of occurrence because it was severe foggy night. "
Failure to prove source of light in a night time occurrence is always considered fatal for prosecution case as it gives room to the possibility of false implication through mistaken identification. Reference in this regard can be made to the case of Gulfam and another v. The State (2017 SCMR 1189) wherein the Hon'ble Supreme Court of Pakistan observed as under:- "The occurrence in this case had taken place at about 11:45 p.m. during the fateful night and the source of light at the spot had never been established by the prosecution. It had been presumed by the courts below that as the occurrence had taken place at a medical store, therefore, some electric light must be available at the spot. The courts below ought to have realized that presumptions have very little scope in a criminal case unless such presumption is allowed by the law to be raised. "
14. The two eyewitnesses burdened Ahmad Khan and Darvaish (appellants) with the role of causing one firearm injury each on the abdomen of Gohar Fareed (deceased). The autopsy of Gohar Fareed was conducted by Dr. Shuja ur-Rehman but since he died during trial, therefore, in his place Dr. Ubaid Ullah Farooq (CW.2) appeared in the dock and furnished secondary eviden ce. Contrary to the afore-mentioned claim of receiving two firearm injuries by Gohar Fareed during occurrence, Dr. Shuja-ur-Rehman (CW.2) admitted that as per postmortem report, the deceased received only a single firearm injury . Similarly , Mazhar Fareed (PW.1) saddled Muhammad Khan son of Yousaf (appellant) and Muhammad Khan son of Fareed (PO) in crime report (Exh.PL) with role of inflicting injuries with .12 bore guns on the abdomen of Tufail (deceased), whereas, according to autopsy-report, only a single injury with blackening around its margins was noticed by the doctor on the given locale. In order to address this anomaly , the eyewitnesses made improvements in the private complaint as well as during trial and described the locale of injury caused by Muhammad Khan (appe llant) on the abdomen of Tufail (deceased) and stated the locale of injury inflicted by Muhammad Khan son of Fareed (PO) on the left thigh of Tufail. We are convinced that the change in version of witnesses was not an outcome of frail human memory , rather was deliberately made with a nefarious design of bringing their testimony in conformity with medical evidence, thus can in no manner be brushed aside. It is the purity of a testimony which leads a court to pronounce a guilty verdict and if such purity is polluted through dishonest improvements, the eyewitness loses his credibility rendering him not worthy of any credence. Reference in this regard can be made to the case reported as Sardar Bibi and another v. Munir Ahmed and others (2017 SCMR 344 ) wherein the Hon'ble Supreme Court of Pakistan observed as under:- "According to the doctor, there was only one fire-arm entry wound on the chest of the deceased Zafar Iqbal. In order to meet this situation, witnesses for the first time, during trial made omission and did not allege that the fire shot of Sultan hit at the chest of Zafar Iqbal, deceased. So the improvements and omissions were made by the witnesses in order to bring the case of prosecution in line with the medical evidence. Such dishonest and deliberate improvement and omission made them unreliable and they are not trustworthy witnesses."
It is further observed by us that though Muhammad Khan Fareed (PO) was armed with .12 bore gun, however, the injury on thigh of Muhammad Tufail (deceased) was found to be measuring as .5 x .5 cm with mild blackening. Needless to mention here that cartridge of .12 bore gun comprises upon multiple pallets and if fired from a close distance, it makes ingress in human body with an injury of much larger dimension. All the afore- mentioned shortcomings lead us to an anomaly between medical and ocular evidence, which can legitimately be resolved in favour of defence. Reliance in this regard can be placed upon the case of Abdul Jabbar and another v. The State (2019 SCMR 129) wherein the Hon'ble Supreme Court of Pakistan observed as under:- "It is the settled principle of law that once a single loophole is observed in a case presented by the prosecution much less glaring conflict in the ocular account and medical evidence or for that matter where presence of eye - witnesses is not free from doubt, the benefit of such loophole/lacuna in the prosecution case automatically goes in favour of an accused."
15. While adverting upon the case of prosecution, it is further noted that along with appellants two others namely Imdad and Ijaz were also implicated in the case and were assigned role of active participation in the crime. To be precise, Imdad was saddled with accusation of inflicting firearm injury on the left elbow of Tufail (deceased), whereas Ijaz was ascribed a firearm injury to Zafar Iqbal (injured). Both the afore-mentioned accused were acquitted by the trial court and no appeal is filed against such decision. Safely a conclusion can be drawn from the acquittal of Imdad and Ijaz that deposition of both witnesses was not found credible by the court and they were disbelieved. It needs no mention that credibility of a witness is not divisible as partially reliable and partially unreliable. Though earlier the view of the Hon'ble Supreme Court of Pakistan in such cases was to have resort to the principle of sifting grain from chaff and for this reason it was laid down that if the testimony of such a witness is corroborated from other attending circumstances, it can be used for awarding conviction to other accused.
However , the rule of sifting grain from chaff was laid to rest by the Hon'ble Apex Court in a recent case i.e. Criminal Miscellaneous Application No.200 of 2019 in Criminal Appeal No.238-L of 2013 and made applicable old aged principle of falsus in uno, falsus in omnibus . For reference sake, an excerpt from the above referred case is being reproduced hereunder:- "We may observe in the end that a judicial system which permits deliberate falsehood is doomed to fail and a society which tolerates it is destined to self-destruct. Truth is the foundation of justice and justice is the core and bedrock of a civilized society and, thus, any compromise on truth amounts to a compromise on a society's future as a just, fair and civilized society. Our judicial system has suffered a lot as a consequence of the above mentioned permissible deviation from the truth and it is about time that such a colossal wrong may be rectified in all earnestness. Therefore, in light of the discussion made above, we declare that the rule falsus in uno, falsus in omnibus shall henceforth be an integral part of our jurisprudence in criminal cases and the same shall be given effect to followed and applied by all the courts in the country in its letter and spirit. It is also directed that a witness found by a court to have resorted to a deliberate falsehood on a material aspect shall, without any latitude, invariably be proceeded against for committing perjury."
16. Though, we have disbelieved the ocular account, however , for complete justice, have peeped through the motive, which was canvassed as enmity arising out of murder of Nazar Fareed. In this regard, it is reiterated here that FIR No.73/2009 regarding murder of Nazar Fareed was registered against altogether different set of assailants. Though Gohar Fareed (deceased) was later found involved in the case by police and was arrested but was bailed out by learned ASJ, Depalpur through order dated 04.05.2009 (Exh.DE) after the receipt of an affidavit (Exh.DF) of Ahmad Khan (appellant) whereby he consented for the grant of bail. The instant occurrence took place approximately 19 months after post arrest bail to Gohar Fareed and during this period no untoward incident took place between the parties. This aspect is sufficient to expose the veracity of motive projected by prosecution. We have also embarked upon PFSA report (Exh.PP), according to which guns recovered from Darvaish and Muhammad Khan (appellants) were found wedded with crime empties secured from spot.
However, after having noticed an anomaly, according to which prosecution failed to prove the safe custody and transmission of crime empties to PFSA, no sanctity can be attached to the report (Exh.PP). Since the report of firearm expert is considered as a strong source of corroboration to ocular account, hence, it is incumbent upon prosecution to prove the safe custody and onward transmission of recovered weapon and crime empties to PFSA for comparison. Such omission was even admitted by Muhammad Yaqoob SI (CW.5) through following extract in cross examination:- "On 14.12.2010 I recorded statement of Mohammad Ajmal ASI u/s 161 Cr.P.C. and of Faqeer Mohammad 279/C u/s 161 Cr.P.C. It is correct that there is only mention of keeping two parcels said to contain blood stained earth in the aforementioned statements and that there is no mention of keeping any parcel said to contain crime empties. "
17. While attending to the question of withholding the evidence of injured witnesses, namely , Zafar Iqbal and Shabbir Ahmad, it is found to be bereft of impressive legal reasoning. Zafar Iqbal (injured) was given up on account of being a deaf and dumb witness. Admittedly , Zafar Iqbal was an adult, living active life and had so much maturity of understanding and conversing with others that he was picked up by the complainant to look after his cattle shed.
It is noticed that there is no specific provision, either in Qanun-e-Shahadat Order , 1984 (hereinafter referred to as QSO, 1984 ) or in Cr.P.C. for catering the need of recording deposition of deaf and dumb witness. A wade through the Indian Evidence Act, 1872 indicates that a specific provision, providing procedure for examining deaf and dumb witness stands enacted therein through section 119, which though is not exhaustive in nature, yet for reference sake is reproduced hereunder:- "Dumb witness. A witness is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs; but such writing must be written and the signs made in open Court. Evidence so given shall be deemed to be oral evidence."
Though no specific provision pari materia with section 119 of Indian Evidence Act, 1872 is found enacted in the laws of our country , nevertheless we are of the view that evidence of deaf and dumb witness can still be recorded through necessary implication of Articles 3 and 59 of QSO, 1984 read with section 543, Cr.P.C. It is postulated in Article 3 of QSO, 1984 that all witness es are competent to testify , unless the court considers that they are prevented from understanding the questions put to them or giving their rational answers. A person can be held incompetent to testify , only if the trial court arrives at a definite conclusion that he can neither understand a question nor is in position to give its rational answer . The record of instant case is in eternal silence regarding the satisfaction of court in terms of Article 3 of QSO, 1984. We also feel a pressing need to mention here that under Article 59 of QSO, 1984, trial court can call for the help of an expert having requisite expertise in specific field and through section 543, Cr.P.C. can record the evidence of a deaf and dumb witness by using such expert as interpreter . It needs no elaboration that in the instant case, the services of an exper t from some institute of deaf and dumb persons could conveniently be procured but no effort was made in this regard. Even otherwise, the court was all competent to examine Zafar Iqbal (injured) through some of his relative, well conversant with his signs and gestures after administering oath to him. Nothing as such was brought on record to the effect that Zafar Iqbal (injured) was an illiterate person, otherwise he could be examined even in writing. It goes without saying that all humans are created by Almighty Allah and if some out of them are born with deficie ncy in a faculty , he is blessed by the Creator with some other exceptional abilities. While being in wrestle with the proposition of recording the evidence of a person linguistically incompetent and with complete deficiency of hearing, we have come across the judgments from the Indian jurisdiction reported as The State of Rajasthan v. Darshan Singh @ Darshan Lal [2012 AIR (SCW) 3036] , Kadungoth Alavi v. State of Kerala (1982 CriLJ 94), Ah Soi v. King Emperor (AIR 1926 Calcutta 922), Kumbhar Musa Alib v. State of Gujrat (AIR 1966 101), Rameshwar S/o Kalyan Singh v. The State of Rajasthan (AIR 1952 Supreme Court 54) and M.P. Sharma & Ors. v. Satish Chandra, District Magistrate, Delhi & Ors. (AIR 1954 Supreme Court 300). Out of these, we feel appropriate to reproduce observation of Hon'ble Supreme Court of India in the case of Darshan Singh @ Darshan Lal (mentioned supra) , which is as under:- "20.Language is much more than words. Like all other languages, communication by way of signs has some inherent limitations, since it may be difficult to comprehend what the user is attempting to convey . But a dumb person need not be prevented from being a credible and reliable witness merely due to his/her physical disability .
Such a person though unable to speak may convey himself through writing if literate or through signs and gesture if he is unable to read and write.
A case in point is the silent movies which were understood widely because they were able to communicate ideas to people through novel signs and gestures. Emphasised body language and facial expression enabled the audience to comprehend the intended message.
21. To sum up, a deaf and dumb person is a competent witness. If in the opinion of the Court, oath can be administered to him/her , it should be so done. Such a witness, if able to read and write, it is desirable to record his statement giving him questions in writing and seeking answers in writing. In case the witness is not able to read and write, his statement can be recorded in sign language with the aid of interpreter , if found necessary . In case the interpreter is provided, he should be a person of the same surrounding but should not have any interest in the case and he should be administered oath. "
Similar proposition cropped up before Hon'ble Federal Shariat Court in case reported as Allah Noor v. The State (2008 PCr.LJ 1666) and after noticing the absence of a specific provision on the subject, it was observed that the testimony of deaf and dumb witness can be recorded under Article 59 of QSO, 1984. For the foregoing reasons, we have arrived at an inescapable conclusion that the evidence of Zafar Iqbal (injured) was not to be discarded in the manner done by trial court. In the absence of particular legal provision on the subject, the procedure to record evidence of a dumb witness is likely to be surrounded amidst confusion, hence we feel a pressing need of legislation to make the law more specific on the subject. In order to save the evidence of such a witness in future, we consider it appropriate to refer this judgment to Ministry of Law, Government of Pakistan for initiating appropriate steps towards legislation on the point in question.
We have also noticed that though the name of Shabbir Ahmad (injured) was not cited in the list of witnesses (Exh.PC) annexed with private complaint, however , he was also given up on the statement of complainant. Shabbir Ahmad (injured) besides getting injured in the occurrence was also brother of Muhammad Tufail (deceased) and without an exaggeration his evidence was essentially required for the just decision of the case. As per record, shortly after the occurrence, he put forth his version of crime through an application to police and saddled the responsibility of committing the crime upon the shoulders of four persons, namely, Muhammad Khan s/o Ghulam Fareed, Allah Ditta, Ahmad Yar and Zafar Iqbal. Not only this, on 22.01.2011 he also filed a petition under section 22-A, Cr.P.C. and this aspect was even admitted by Muhammad Yaqoob SI (CW.5). Though, it is said that producing or withholding a witness is prerogative of prosecution yet such rule is not invariably applicable in all cases. In reference to peculiar facts of instant case, by depriving Shabbir Ahmad (injured) to appear in the witness box, the complainant (PW.1) was permitted to have an absolute control over the case. Though Shabbir Ahmad was not cited as witness in the private complaint yet the learned trial court was required to examine him as court witness under section 540, Cr.P.C. In the given circumstances, we consider it important to refer an observation of Hon'ble Federal Court expressed in the case of Khairdi Khan and others v. The Crown (PLD 1953 Federal Court 223), which is as under:- "It is hardly necessary to stress the great importance which attaches to the non-pro duction of an important witness by the prosecution in a criminal case, where no satisfactory reason for non-production is established. It is true that the prosecutor is not bound to produce before the Court a witness who is not expected to give true evidence, but he cannot escape the duty of causing such a witness, if his evidence be of importance, to be present at the trial in case the opposite party should wish to examine him."
In support of our view, we are further fortified from the observation of Hon'ble Federal Shariat Court expressed in the case of Muhammad Waseem alias Kalu v. The State (2006 PCr.LJ 364) which for reference sake is being reproduced hereunder:- "14. In fact, the present case is not solitary one in which this situation has arisen. The rule laid down by Honourable Federal Court is not being adhered to. Even the Qura'nic Injunctions (supra) are not being followed. On the contrary , general practice has crept in the trial of criminal cases throughout the country to the effect that the prosecution either gives up some cited witnesses by alleging that they had been "won-over" or by contending that they were unnecessary and as such not being examined.
This undesirable rattier illegal practice can be effectively dealt with by the trial Court by resort to its vast/unbridled powers under second part of section 540, Cr.P.C. by summoning cited/uncited witnesses whose testimony is considered necessary for just decision of the case. It goes without saying that asce rtainment of truth is the primary duty of the Court and it cannot absolve itself from its due performance merely on account of technicalities. The accused cannot be left at the mercy of the prosecutor to be condemned to jail to suffer imprisonment on the basis of evidence led against him during the trial, at his sweet will."
18. The resume of above discussion is to the effect that the narrators of ocular account besides being inimical against appellants were also found to be chance witnesses; the ocular account is not in absolute conformity with medical evidence; the prosecution failed to bring on record any source of light so as to exclude the possibility of mistaken identification regarding an occurrence which took place on a dark and foggy night; the purity of the testimony of both eyewitnesses is further found polluted from the menace of dishonest improvements and lastly , the most important evidence of two injured eyewitnesses was not brought on record ensuing an inference in terms of Article 129, Illustration (g) of QSO, 1984. The afore-mentioned factors give rise to a reasonable doubt, the benefit of which cannot be withheld from the appellants. Consequently , we allow Criminal Appeal No.509-J of 2016, while giving benefit of doubt to Muhammad Darvaish, Ahmad Khan and Muhammad Khan (appellants), acquit them of the charge and in consequence whereof, set aside their conviction and sentence. They are in custody; be released forthwith if not required to be detained in any other criminal case.
19. Resultantly , Murder Reference No.315 of 2016 is answered in the NEGA TIVE and death sentence awarded to Muhammad Darvaish, Ahmad Khan and Muhammad Khan (convict) is NOT CONFIRMED .