Through this appeal under Section 410, Cr.P.C, appellants Muhammad Ramzan alias Pappu and Muhammad Sajjad have challenged the vires of judgment dated 05.10.2015 passed by the learned Additional Sessions Judge, Multan in case FIR No. 207 dated 8.4.20 13, in respect of offences under Sections 302 & 34 PPC, registered at Police Station, Seetal Mari, Multan whereby they were convicted and sentenced as under: Under Section 302(b)/34, PPC Imprisonment for life each and to pay the compensation of Rs. 100,000/- each to the legal heirs of deceased under Section 544-A Cr.P.C, recoverable as arrears of land revenue and in default thereof, to further undergo simple imprisonment for six months.
They were also entitled to the benefit of Section 382(B) Cr .P.C.
2. The prosecution story unfolded in the crime report (Ex.PC) registered on the complaint (Ex.PF) of Sabir Hussain (PW-8) is that he was employed in Fertilizer Factory Multan. On the fateful day at about 8,00 SAM he alongwith Muhammad Arif and Haft Allah Wadhaya while riding on a motorcycle, were going to Shah Hussain to meet their relatives while his brother Muhammad Ashfaque(deceased) while riding on a bicycle was going ahead of them. In the meanwhile, Muhammad Ramzan alias Puppu and Muhammad Sajjad appellants, riding on a motorcycle Honda CG-125 while armed with pistols arrived there, They stopped Muhammad Ashfaque (deceased), near Mobilink Tower , They threatened the complainant and his companions to murder them in case they stepped forward and raised a lalkara to teach a lesson to Muhammad Ashfaque (deceased) for murdering Haji Mehmood, In their view Muhammad Ramzan and Muhammad Sajjad made consecutive fire shots which hit at different parts of body of Muhammad Ashfaque, who after sustaining the injuries fell down smeared with blood, The accused persons fled away from the scene of occurrence while advancing threats to the complainant and others. The complainant along with others attended Muhammad Ashfaque but he had succumbed to the injuries at the spot. The occurrence was witnessed by complainant, Muhammad Arif and Hafiz Allah Wadhaya. The motive behind the occurrence was that one relative of accused persons namely Haji Mehmood was murdered for which acriminal case FIR No. 183 dated 09.12.2005 in respect of offences under sections 302&34 PPC was registered at Police Station Sadar Multan against Muhammad Ashfaque and his father Allah Wasaya. Muhammad Ashfaque deceased after full dressed trial was acquitted of the charge, whereas Allah W asaya was convicted and sentenced.
3. Muhammad Ramzan, SI (PW-10) had visited the place of occurrence drafted the complaint (Ex.PF), inspected the deadbody of deceased Muhammad Ashfaque, prepared injury statement (Ex.P E) and inquest report (Ex.PE/2), escorted the dead body to the mortuary and prepared visual site plan (Ex.PL) of the place of occurrence. He had secured five live bullets (P-41-5) vide recovery memo (Ex-PJ) five empties of pistol 30 bore P-611-5 vide recovery memo (Ex-PH) and secured one bicycle (P-4) vide recovery memo (Ex-PG) from the place of occurrence. He arrested Muhammad Ramzan alias Pappu and Muhammad Sajjad(appellants) on 14.04.2013.On 22.04.2013, Muhammad Sajjad accused led to the recovery pistol P-7 alongwith three live bullets ( P-7/1-3)which were taken into possession vide recovery memo (Ex. P.M). On the same day Muhammad Ramzan accused also led to the recovery of pistol (P-8) along with four live bullets (P-8/1-4), which were taken into possession vide recovery memo. He also got recovered Motorcy cle Bearing Registration No. MNF9584 (P-9) which were taken into possession vide recovery memo (Exh. PN) and handed over the police file to SHO for submission of the challan to the trial Court.
4, Doctor Aamir Qayyum (PW-7) had conducted autopsy on the dead b6dy of deceased Muhammad Ashfaque and observed following injuries:-- 1-A) A lacerated wound of (entry) 1 cm x 1 cm on the back and right side of chest from mid line with inverted margins. Abraded collar present going deep with tattooing present around the wound.
1-B) A Lacerated wound of exit 1 cm x 1 cm on the frond and right side of chest 2 cm from midline and 10 cm, from right nipple with everted margins.
2-A) A lacerated wound of entry 1/2 cm x 1/2 cm on the back and right side of lower chest, 4 cm. from midline with inverted margins with abraded collar present, Tattooing present around the wound going deep 2-B lacerated wound of exit 1 cm x 1 cm on the front and right side of the chest 1 cm from midline 2 cm below injury No 1 & 2 with averted margins 3-A) Lacerated wound of entry 3/4 cm x 3/4 cm on the back and right side of abdomen just below lower , chest with inverted margins abraded collar present going deep tattooing present around the wound.
3-B) Lacerated wound of (exit) 3/4 cm x 3/4 cm on the front and left side of lower chest 7 cm from midline with averted margins.
4-A) Lacerated wound of (entry) 3/4 cm x 3A cm on the front and right side of abdomen just above iliac crext with inverted margins abraded collar present going deep.
4-B) Lacerated wound of (exit) 1 cm x 1 cm from the front and right side of the chest 14 cm below right nipple with inverted margins.
5-A) Lacerated wound of (entry) 3/4 cm x.5 cm on the front and left thigh 8 cm below inguinal region with inverted margins abraded collar present with muscle deep.
5-B) Lacerated wound of (exit) 1 cm x 1 cm on the outer side of left thigh with inverted margins and distance of injury Nos. 5-A and 5-B was about 10 cm.
No abnormality was detected in the skull. Injuries No. 1 & 2 had cut the skin fascia-muscle and entered the chest cavity , which was full of blood causing fracture of fifth and sixth ribs damaging the heart and right lung by making an exit wound. A, bullet entered the abdomen cavity , which was full of blood and it damaged the liver and stomach.
5. The cause of death was all injuries damaging the vital organs of the body , heart, lungs, liver and stomach leading to severe hemorrhage, shock and death. All the injuries were antemortem in nature. The probable duration between injuries and death was immediate whereas between death and postmortem examination was 4 to 8 hours,
6. At the commencement of trial, the prosecution had produced 1 lwitnesses besides tendering the reports of Punjab Forensic Science Agency (Ex,PQ), and (Ex,PR). The appellants, in their statements recorded under Section 342 Cr,P,C, had denied and controverted all the allegations of fact, levelled against them. They did not opt to make statements on oath under section 840(2) Cr ,P,C, however they had produced two witnesses in their defence.
7. Learned trial Court, upon conclusion of the trial, had convicted and sentenced the appellants supra. Hence, this criminal appeal.
8. Learned counsel for the appellants submits that the appellants are quiet innocent and have been falsely implicated in the alleged occurrence; that it was a blind murder and the complainant was summoned at the scene of crime later on; that both the witnesses of ocular account were chance witnesses and they could not establish their presence at the venue of occurrence at the relevant time; that they were hot residents of the locality where the alleged occurrence had taken place; that Hafiz Hassan Mehmood (PW-2) had stated that he was informed by someone with regard to the alleged occurrence and he had identified the dead body at the place of occurrence; that both the defence witnesses appearing as (DW-1 & DW-2) had fully established their presence having agricultural land adjacent to place of occurrence; that there are material contradictions in the evidence of both the claimed eye witnesses inter-se which do not tally with the real facts of the case; that motive part of the occurrence was equally attributed to the impalement and in case of murder of the deceased on account of the said motive, then it was open for the appellants to commit the murder of complainant as well; that recovery of weapon of offence remained inconsequential. At the end he has prayed for the acquittal of the appellants from the murder in issue.
9. Conversely , learned Deputy District Public Prosecutor appearing for the State submits that it was abroad day light occurrence Where misidentification of the appellants cannot be questioned; that it was a promptly lodged FIR containing the names of the appellants with the specific roles of causing fire-arm injuries at the person of the deceased; that motive part of the occurrence has fully been established that Muhammad Ashfaque (deceased)had been acquitted of the charge from the case relating to motive part of the occurrence ; that the ocular , account is fully supported with the medical evidence; that the postmortem examination was condu cted within the shortest possible time; that the defence witnesses had not appeared before the Investigating Officer and, thus, their evidence had no evidentiary value. He further maintained that the evidence available on record was well appraised by the learned trial Court and thus, the same need not to be interfered by this Court,
10. I have heard learned counsel for the appellant, learned Deputy Public Prosecutor appearing for the State and have perused the record with their able assistance,
11. The mainstay of the prosecution case is on the testimony of Sabir Hussain (PW.8), the complainant/real brother of the deceased and Muhammad Arif (PW-7) brother-in-law of the deceased. The complainant -while appearing in the witness box had deposed what he had averred at the time of reporting the matter to the police stating therein that on the fateful day at about 8,00 a.m. he alongwith Arif and Haflz Allah Wadhay a was proceeding towards Shah Hussain Mouza Kirpal Pur, whereas his brother Muhammad Ashfaque was going ahead of them on a bicycle. The appellants came in front of the bicycle , after raising lalkara to take the revenge of murder of Haji Mehmood, fired at Muhammad Ashfaque who fell down and the accused persons fled away from the scene of occurrence. They attended Muhammad Ashfaque who had succumbed to the injuries at the spot. They said occurance had taken place near Mobilink Tower Shah Hussain Road Muhammad Arif (PW-9) had deposed before the learned trial Court almost identical to that of the statement of the complainant. They were cross-examined by the defence but they could riot prove their truthfulness, regarding their presence at the venue of occurrence. As per prosecution's claim the eye witnesses and the deceased were proceeding towards Shah Hussain to attend Khatam Sharif, whereas (PW-9) had stated that they had a progr am to meet their relatives. The alleged occurrence was shown to have taken place at 8:00 a.m. whereas the matter was reported to the police at 9:30 a.m. In contrary to that the complainant made statement before the police at 1.00 p.m. on the same day. He further stated that his duty hours were 5:00 a.m. to 8:00 p.m. and there was no reason for him to leave his duty hours. Another distinguishing factor was that as per prosecution's own case, both the witnesses of ocular account were proceeding to Shah Hussain while riding on a motorbike whereas the deceased was on a bicycle and it is quiet un-natural and unbelievable that the deceased was going ahead of them, though he was on bicycle and they were following him and in their view the accused persons made successive fire shots upon the deceased resulting into his death but none of them had made hue and cry or attempted to rescue the deceased despite having close relationship, the only inference could be drawn that "had they been present there, they would have intervened to rescue the deceused".
12. Admittedly , both the claimed eye witnesses were not resident of the locality where this occurrence had allegedly taken place. The complainant was resid ent of Khaliq Pura, whereas Muhamma d Arif was residing at 5-Marla scheme Matti Tall Road,. Multan which is situated far away from the place of occurr ence and thus, their presence at the venue of occurrence at the time of occurrence and their un-natural conduct shows that no one from them had witnessed the occurrence, especially when they had not given any information to the police with regard to the alleged occurrence as stated by them during cross-examination,
13. Another pinching aspect of the case was that the deceased was taken to hospital through Rescue 1122 and this fact was farther elaborated by the defance evidence wherein Muhammad Akhtar (WW -1) and Zulflqar Ali appearing (DW-2) brought before the Court true picture of the occurrence as what happened in their view with the deceased and they have shown their presence in a quiet natural way being cultivators of the land adjacent to the place of occurrence. They had deposed that one un-known person was proceedings towards Shah Hussain on bicycle and two young lads while riding on a motorbike Honda CG-125 following him, the person who was sitting behind had made' fire shorts upon the person riding the bicycle and then after having crossed him, facing reverse made firing upon him resulting into his death and then the accused persons fled away from the scene of occurrence, they informed Rescue 1122 and on arrival of the officials of the rescue team one of them took cell phone from the pocket of the deceased and made phone call to the last caller wherein Hafiz Hassan Mehmood responded from the other side who had appeared as (PW-2) came at the place of occurrence, identified the dead body and then after providing information to the police, escorted the dead body to the mortuary . Though both the said defence witnesses had not named any person being not known to them yet, at the same time they had not named the present appellants as well. The eye witnesses could not establish their presence at the scene of occurrence being chance witnesses and their un-natural conduct at the place of occurrence and, thus, their evidence was maneuvered and concocted just to implicate the appellants in the alleged occurrence. I seek guidance from the case law reported as Mst. Rukhsana Begum& others versus Sajjad & others" (2017 SCMR 596). The relevant portion is reproduced for ready reference: "in ordinary parlance, a chance witness is one who, in the normal course is not supposed to be presence on the crime spot unless he offers cogent, convincing and believable explanation, justifying his presence there."
14. Doctor Aamir Qayyum (PW-7) had conducted autopsy on the dead body of the deceased on 08.04.2013 at 1.00 p.m. He had, observed a lacerated wound of entry on the back and right side of chest along with exit wound on the front and right side of chest, a lacerated wound of entry on the back and right side of lower chest with inverted margins tattooing present around the wound along with averted margins, a lacerated wound of entry on the back of the right side of abdomen just below lower chest with inverted margins, a lacerated wound of entry on the front and left side of lower chest with averted margins, a lacerated wound of entry on the front right side of abdomen just above alias crext with inverted margin, a lacerated wound of entry on the front and loft thigh with inverted margins alongwith an exit wound on the outer side of left thigh. Ho had opined that all the injuries were causing death of a person while damaging vital organs of the body , heart, lungs, liver and stomach leading to severe hemorrhage, shock and death. The probable duration between injuries and death was immedia te whereas between death and post-mortem was 4 to 8 hours, The purpose of postmortem examination is always to ascertain the cause of death, number , nature and locale of injuries, kind of weapon used; duration between injuries and death as well as between death and post-mortem examination but it cannot raise finger towards any specific culprits. The medical evidence shows that it was an un-natural death caused through fire-arm weapon but this being supportive piece of evidence has no benefit to the prosecution when the ocular account has already been discarded.
15. The motive as set-up by the prosecut ion in the crime report was that decease d Muhammad Ashfaque and his father Allah Wasya were booked in case FIR No. 183, dated 09.12.2005, in respect of offences under Sections 302 & 34, PPC Police. Station Sadar 'Multan for the murder of one Haji Mehmood, a close relative of the accused wherein after full-dressed trial, the deceased was acquitted of the charge whereas his father was convicted and sentenced and, thus the appellant had murdered the deceased to take the revenge of said murder . There is no denial of the fact that a previous case was registered against the deceased and his father but the question remains that the deceased and Sabir Hussain (PW-1) both were real brothers and they were on equal footing, if the accused persons were in a position to murder the deceased they had an ample opportunity to murder the complainant as well but they left the complainant and committed the murder of deceased for the purpose to give evidence against them. This aspect of case is not acceptable to a man of commo n prudence. Though motive part of the occurrence is established yet the presence of the Complainant and other eye witness has not been proved at the relevant time at the place of occurrence.
16. Appellants Sajjad and Ramzan were arrested in the instant case on 14.4.2013 and during course of investigation, in pursuance of their disclosure, they got recovered pistols 30 bore on 22.04.2013. It goes without saying that five crime empties, already secured from the place of occurrence, by the Investigating Officer during his first visit were sent to the office of Punjab Forensic science Agency on 08,05,2018, after the arrest of the appellant. and the recoveries of respective weapon of offence, The weapon and the crime empties were sent together to the aforesaid office and thus, the report has been received with positive result, even the same cannot be used against the appellants being inconsequential, In this regard I seek guidance from the case law reported as "Muir Ahmad vs, The State". (2018 SCMR 1828) The relevant portion is reproduced for ready reference: "the crime empty secured from the place of occurrence was sent to the "Forensic Science Laboratory after recovery of the gun rendering such recovery to be legally unacceptable and the medical evidence had contradicted the ocular account in respect of level of fire at the deceased."
17. Having scanned the entire prosecution evidence, I am of the considered view that the prosecution has not been able to prove the charge of murder against the appellants through reliable' and confidence inspiring evidence, as both the witnesses of ocular account remained fail to establish their presence at the crime scene at the relevant time alongwith deceased, being chance witnesses. The residence of both the witnesses is far away to that of the place of occurrence an they could not establish any valid reason to be present at the crime scene at the relevant time. The facts and circumstances of the case itself indicate that the witnesses, who had appeared from the defence side, informed the Rescue 1122 and on arrival of the officials, they made arrangements to inform the last caller from the cell phone of the deceased, i.e. Hafiz Hassan Mehmood (PW-2) who on his arrival identified the dead body of the deceased. Both the claimed eye-witnesses were associated subsequently just to maneuver and cooking up a false story for the purpose of implication of the appellants in the alleged occurrence. There was no occasion for the appellants to commit he murder of Muhammad Ashfaq (deceased) while leaving the complainant to appear against them in the witness box for sending them into the gallows. The recovery of weapons of offence remained inconsequential
18. Having no other option the instant appeal filed by Muhammad Ramzan alias Pappu and Muhammad Sajjad, is allowed, their conviction and sentence are set-aside and they are acquitted of the charge, by extending the benefit of doubt. They are directed to be release from jail forthwith, if not required to be detained in connection with any other criminal case.