SARDAR MUHAMMAD SARFRAZ DOGAR, J. On 23.8.2015 at about 6.00 p.m.in the area of Mouza Ghani Pur (back side of Kargul Hotel) Tehsil Khairpur Tamewali within the territorial jurisdiction of Police Station Khairpur Tamewali, one Muhammad Ramzan alias Banoo (deceased) was done to death by Muhammad Safdar appellant by causing firearm injuries with his pistol along with his two co-accused Faiz Fareed and one unknown accused person in the backdrop of a motive based upon a suspicion of illicit relations between deceased Muhammad Ramzan alias Banoo and Mst. Ulfat Bibi, sister-in law (Bhabbi) of Muhammad Safdar appellant. With the said allegations the appellant and, his co-accused were booked in case F.I.R No. 230 registered at the abovementioned Police Station during the same evening under sections 302/34 PPC.
2. At the trial held by the learned Additional Sessions Judge, Khairpur Tamewali, vide judgment dated 28.05.2016, co-accused of the appellant, namely , Faiz Fareed alias Jagoo and Khan Muhammad were acquitted of the charge by the learned trial court while extending benefit of doubt to them, whereas, Muhammad Safdar appellant was convicted for an offence under section 302 (b), PPC and sentenced to death by way of Taz'ir with direction to pay Rs. 5,00,000/- as compensation to the legal heirs of the deceased as envisaged under section 544- A, Cr.P.C. and in default thereof to suf fer simple imprisonment for six months.
3. Feeling aggrieved by the abovesaid conviction and sentence, Muhammad Safdar appellant has preferred the captioned appeal, which has been heard by us alongwith Murder Reference No. 42-2016/BWP sent by the learned trial Court under section 374, Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to Muhammad Safdar appellant and both these matters being interlinked and interconnected with each other are being disposed of together through this single judgment.
4. The facts of the case have succinctly been penned down in the impugned judgment of the learned trial court which need not to be recapitulated here.
5. We have heard learned counsel for the appellant, learned Deputy Prosecutor General for the State assisted by learned counsel appearing on behalf counsel for the complainant and have also gone through the relevant record.
6. The most vital point in the case attracting the court' s attention is the fact of FIR, having been lodged at the crime spot with the delay of one hour and forty minutes, no reason much less plausible has been given by the prosecution at any stage. The FIR lodged at the crime spot, in a murder case, would create reasonable suspicion that the crime was un-witnessed one, therefore, preliminary investigation was carried out and witnesses were set up. It is the prosecution case itself that the complainant alongwith the other witnesses was present at the time of occurrence and the dead body could be conveniently taken within no time either to the police station which was at a distance of only one kilometer from the place of occurrence or to THQ Khairpur Tamewali which was at about 1 1/4 k.m. from the place of occurrence but instead, the complainant waited for the arrival of the police not taking a single step to shift the dead body . Who informed the police about the crime and crime place, is another begging question, having no answer from the prosecution. True that in each and every case if FIR is lodged at the crime spot, the entire case of the prosecution cannot be thrown away but there must be some plausible reasons in that regard and when the very reason is absent, many suspicions and doubts would arise and inference against the prosecution has to be drawn in this regard. Reliance is placed on "Mst. Nazia Anwar versus The State and others" ( 2018 SCMR 91 1).
7. The unfortunate incident in the present case according to the prosecution was alleged to have taken place at 6.00 p.m. on 23.08.2015 in the area of Mouza Ghani Pur (back side of Kargul Hotel) Tehsil Khairpur Tamewali, 1 k.m. away towards South, from Police Station Khairpur Tamewali District Bahawalpur , which was then reported by Saeed Ahmad (PW-1), elder brother of Muhammad Ramzan alias Banoo deceased through complaint (Ex:P A) presented before Ghulam Shabbir , S.I. (PW12) at the place of occurrence, on the basis of which formal FIR (Ex.
PA/1) was chalked out by Muhammad Islam, ASI (PW9) on the same evening at 7.15 p.m. According to the statement of Ghulam Shabbir , S.I. (PW12) , after getting information about the occurrence, he reached the place of occurrence, he took into possession the dead body of Muhamad Ramzan alias Banoo deceased, prepared the injury statement (Ed. PF) and inquest report (Ex. PG) of the deceased. Then Saeed Ahmad complainant (PW1) appeared before him and submitted an application (Ex. PA) for registration of the case. Thereafter , dead body of Muhammad Ramzan alias Banoo deceased was sent to mortuary for autopsy through Asghar Ali 368/CII (PW10) .
However , postmortem examination on the dead body of Muhammad Ramzan alias Banoo deceased was conducted by Dr. Hamid Hassan, M.O. (PW3) at 7.15 a.m. on 24.8.2015 and as per his opinion the time between the death and postmortem examination was 13 hours. So it was a case of delayed postmortem, which casts serious doubt that the FIR was got recorded with promptitude, but the inference can be drawn that the intervening period was consumed in fabricating the prosecution story after the preliminary investigation, otherwise there was no justification for conducting the postmo rtem examination on the next day at 7:15 a.m. instead of conducting the postmortem examination on the same night i.e. 7:15 p.m. when the dead body of the deceased was received in the hospital. We may refer here the case of "Muhammad Rafique alias Feeqa versus The State" (2019 SCMR 1068 ), wherein the Hon'ble Supreme Court of Pakistan has observed as under:- "Unexplained delay in conducting post-mortem--- Post-mortem was carried out after a delay of nearly 22 hours on the next day--- Such unexplained delay in the post-mortem of a deceased would surely put a prudent mind on guard to very cautiously assess and scrutinize the prosecution' s evidence---In such circumstances, the most natural inference would be that the delay so caused was for preliminary investigation and prior consultation to nominate the accused and plant eyewitnesses of the crime."
8. The Achilles' heel of the prosecution' s case is the very resence of the named eye-witnesses at the time and place of occurrence. To start with the ocular account of the incident in issue which had been provided before the learned trial Court by Saeed Ahmed complainant (PW1) and Muhammad Javed (PW2) and we have found that both the said witnesses were not only very closely related to Muhammad Ramzan alias Banoo (deceased) but they were also chance witnesses and they had failed to bring any evidence on the recor d establishing the stated reason for their presence close to the deceased at the relevant time. Saeed Ahmed complainant (PW1) was brother of Muhammad Ramzan alias Banoo (deceased) whereas, Muhammad Javed (PW2) was son of the complainant and nephew of Muhammad Ramzan alias Banoo (deceased). The occurrence in this case had taken place for away from the house of the said witnesses as the place of their abode is at a distance of 7 k.m. from the place of occurrence. Even otherwise, the eye witnesses produced by the prosecution had also seriously contradicted each other on many important aspects of the case. In ordinary parlance, a chance witne ss is the one who, in the normal course is not supposed to be present on the crime spot unless he offers cogent, convincing and believable explanation, justifying his presence there. In the instant case, both the witnesses have shown no work or definite purpose of visit to crime spot, therefore, their presence on the crime spot is not believable and their testimony is liable to be rejected on this score alone. Apart from this, so many loopholes/lacunas have also been observed which not only makes the presence of the eyewitnesses doubtful at the crime spot at the relevant time but also raised an eyebrow on the story of the prosecution. During the course of investigation, the motorcycle allegedly used by the accused for the purpose of their arrival and departure from the place of occurrence was not recovered by the police and even as per investigatio n conducted by Ghulam Shabbir , S.I. (PW12) , only Safdar appellant came to the place of occurrence on foot and he caused firearm injuries to deceased and made good to his escape. It is also noticeable that Ghulam Shabbir , S.I. (PW12) during the cross-examination has admitt ed that according to his investigation whole allegations mentioned in (Ex. PA) were not found correct. There is yet another important aspect of the matter which cannot be set at naught by this Court as on the one hand, Ghulam Shabbir , S.I. (PW12) during cross-examination claimed that the injury statement and inquest reports were already prepared by him prior to submission of application (Ex. PA) by Saeed Ahmad complainant (PW1) and the dead body was sent to the hospital at about 6.30 p.m. but on the other hand, the stance taken by the Investigating Officer has been falsified by Dr. Hamid Hassan, M.O. (PW3) , as according to him neither the injury statement and inquest reports were received along with the dead body nor the dead body was received at the time narrated by the Investigating Officer. It is the settled principle of law that once a single loophole is observed in a case presente d 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. Reliance is placed on Abdul Jabbar and another versus The State" ( 2019 SCMR 129 ).
9. Instead of providing support to the ocular account the medical evidence produced by the prosecution had gone a long way in creating dents in the case of the prosecution. 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 Officer are also to be handed over in order to assist the Medica l Officer in the examination of the dead body . But in the case in hand, the required documents were not handed over to the Medical Officer along with the dead body of the deceased, as according to Dr. Hamid Hassan, Medical Officer (PW3) , who conducted the postmortem examin ation on the dead body of the deceased at 7.15 a.m. on 24.8.2015, though the dead body of the deceased was brought in the hospital at about 7.15 p.m. on 23.8.2015 but the inquest report and the injury statements were not with the dead body when he received the dead body for the purpose of postmortem examination and the relevant documents were received by him next morning at 6.27 a.m. on 24.8.2015. It is not discernible from the record that when the dead body of deceased was sent for postmortem examination by the police at 7.15 p.m. on 23.8.2015, why the documents were not sent along with the dead body rather the same were sent with the delay of more than 12 hours of the occurrence, what happened in between, which delayed the postmortem examination for more than 13 hours.
There is no explanation at all available on record for such delay . No doubt, the noticeable delay in post mortem examination of the dead body is generally suggestive of a real possibility that time had been consumed by the police in procuring and planting eye-witne sses before preparing police papers necessary for the same. Reliance is sought on "Muhammad Rafique alias Feeqa versus The State" (2019 SCMR 1068 ), "Ulfat Hussain v. The State" (2018 SCMR 313),"Nazir Ahmad versus The State" (2018 SCMR 787) and Muhammad Yaseen v.
Muhammad Afzal and another" ( 2018 SCMR 1549 ).
10. There is yet another intriguing aspect of the matter which raised an eye brow on the presence of the eyewitnesses at the crime spot at the relevant time that as per site plan of the place of occurrence (Ex. PH/2), point No. 1 is the place where the deceased Muhammad Ramzan alias Banoo was alleged to be siting for urination, whereas, point No. 2 is the place from where the deceased was fired at by the appellant. The distance from point No. 1 to point No. 2 is three karms, where as, Dr. Hamid Hassan, Medical Officer (PW3) had noted blackening and burning on injuries No. 2 and 4, therefore , ocular account furnished by the two eyewitnesses is not in consonance with the medical evidence which clearly contradicts the statements of the eyewitnesses. It is a settled law that blackening appears on the dead body in case the deceased has received injuries at a distance of 4 feet according to medical jurisprudence by Modi. Reliance is placed on "Barkat Ali Vs. Muhammad Asif and others" (2007 SCMR 1812 ) and "Abdul Jabbar and another versus The State" (2019 SCMR 129), wherein the August Supreme Court of Pakistan in similar facts and circumstances has granted benefit of doubt in the following manner:- "Once a single loophole was observed in a case presented by the prosecution, such as conflict in the ocular account and medical evidence or presence of eyewitnesses being doubtful, the benefit of such loophole/lacuna in the prosecution case automatically went in favour of an accused."
11. It is also pertinent to mention here, that the attesting witness to all the recoveries of incriminating articles, i.e. recovery of pistol 30 bore (Ex. PD), recovery of empty cartridges (Ex. PC) and possession of blood stained earth of place of deceased is Muhammad Javed (PW2) whose testimony we have already disbelieved as a whole. It is fundamental principle of justice that corroboratory evidence, must come from independent source providing strength and endorsement to the account of the eye-witnesses, therefore, eye-witnesses, in the absence of extraordinary and very exceptional and rare circumstances, cannot corroborate themselves by becoming attesting witness/witnesses to the recovery of crime articles. In other words, eye-witnesses cannot corroborate themselves but corroboratory evidence must come from independent source and shall be supported by independent witnesses other than eye-witnesses, thus, these recoveries are equally of no judicial efficacy . Furthermore, in column No. 23 of the Inquest Report (Ex. PG) no crime empty has been shown present there, albeit in the recovery memo (Ex.
PC) and in the site plan (Ex. PJ), these empties had been shown recovered lying very close to the dead body of the deceased. This deliberate omission, creates reasonable doubt about the recovery . Reliance is placed on "Mst.
Rukhsana Begum and others versus Sajjad and others" (2017 SCMR 596). Even otherwise, according to the Memorandum of Recovery the alleged recovery had been effected from a Chobara but the recovery witness namely , (PW2) Muhammad Javed could not tell the name of owner of said Chobara and even no person was found present at that Chobara. Seemingly , the iron box from where the recovery was effected was not locked, as such the recovery of pistol had not been effected from an exclusive custody of the appellan t. More importantly , the recovery of pistol (P4) from the possession of the appellant has become legally inconsequential from the stance taken by Ghulam Sabbir , S.I. (PW12) , who during his cross-examination qua the recovery of weapon of offence has stated as infra:- "The weapon of offence Pistol P4 is before me. I placed the seal with the name of M.A. I placed three seals when I sealed pistol P4. Once seal was removed in the office of P.F.S.A. Lahore for the purpose of examination this pistol. T wo seals are still intact. Third seal is not properly secured and it is doubtful.
12. Apart from that the motive set up by the prosecution had never been put to the present appellants at the time of recording of their statements under section 342, Cr.P.C. the law is settled that a piece of evidence not put to an accused person at the time of recording of his statement under section 342, Cr.P.C. cannot be considered against him. Reliance is placed on "Imtiaz alias Taj Vs. The State and others" (2018 SCMR 344), Qaddan and others v.
The State" (2017 SCMR 148) and "Mst. Anwar Begum v. Akhtar Hussain alias Kaka and 2 others" (2017 SCMR 1710 ).
13. Coming to the evidence of 'Wajtakkar ' furnished by Muhammad Imran (PW-11) and as per his own statement, there was a distance of 5/6 k.m. between his house and the place of his standing at Aleemia road while there was a distance of half k.m. between place of occurrence and place of his standing at Aleemia road. He had failed to disclose the source through which he had come to know about participation of the appellant in the incident and as such the said evidence was not suf ficient to connect the appellant with the commission of the crime.
14. It is significant to point out here that co-accused of the appellant, namely , Khan Muhammad and Faiz Fareed were acquitted of the charge by the learn ed trial court while extending benefit of doubt to them, as such the eye- witnesses produced by the prosecution were capable of falsehood. It is a trite principle of law and justice that once prosecution witnesses are disbelieved with respect to a co-accused then, they cannot be relied upon with regard to the other co-accused unless they are corroborated by corroboratory evidence coming from independent source and shall be unimpeachable in nature but that is not available in the present case. Relia nce is placed on "Nazir Ahmad versus The State" ( 2018 SCMR 787 ) "Haroon Shafique versus The State and others" ( 2018 SCMR 21 18).
15. So far Report of Punjab Forensic Science Agency (Ex. PN) qua the blood stain ed earth is concerned, suffice it to observe that unless the blood stained earth or cotton and blood stained clothes of the deceased/victim are not sent with the same for opinion of serologist to the effect that it was human blood and was of the same group which was available on the clothes of the decea sed/victim and the blood stained earth/cotton, such inconclusive opinion cannot be used as a piece of corroboratory evidence. Reliance is placed on "Muhammad Asif Vs. the State"
(2017 SCMR 486 ).
16. To sum up the above findings, it is noted that: there is unexplained delay in lodging the F.I.R; the recovery is ineffective and is of no consequence; the marked unexplained delay in the post mortem; the posture of the deceased at the time of his initial examin ation by the police and during his post mortem examination; recording of the crime by the police at the place of occurrence; the motive behind the occurrence is far from being proved and almost non-existent, and the lack of any cogent and reliable evidence adduced by the prosecution in support of the reason advanced for their presence by the complainant are all strong circumstance which create a serious dent in the prosecution' s case qua the presence of the eye-witnesses at the time and place of occurrence. Thus, when the very presence of the eye-witnesses is doubtful, then the veracity of their testimony would surely fall short of credence to saddle capital punishment upon the present appellant. Reliance is placed on "Muhammad Rafique alias Feeqa versus The State" ( 2019 SCMR 1068 ).
17. For what has been discussed above a conclusion is unavoidable and irresistible that the prosecution has utterly failed to prove its case against the appellant beyond reasonable doubt. This appeal is, therefore, allowed, the convictions and sentences of the appellant recorded by the learned trial court by way of impugned judgment dated 28.05.2016 are set aside and the appellant is acquitted of the charge. He shall be released from the jail forthwith if not required to be detained in connection with any other case.
18. Consequently , Murder Reference No. 42 of 2016 seeking confirmation of death sentence of Muhammad Safdar appellant is replied in the NEGA TIVE and Death Sentence awarded to him is NOT CONFIRMED.