SADIQ MAHMUD KHURRAM, J. Muhammad Zubair son of Muhammad Iqbal (convict) was tried by the learned Additional Sessions Judge, Talagang, District Chakwal along with his co-accused namely Muhammad Naeem son of Muhammad Hussain (since acquitted)in the case instituted upon the private complaint titled "Ameer Muhammad Vs. Muhammad Naeem and another" (relating to FIR No. 34 of 2014 dated 22.03.2014 registered at Police Station Tamman District Chakwal) in respect of offences under sections 302 and 34 PPC for committing the Qatl-i-Amd of Umar Hayat son of Ameer Muhammad (deceased). The learned trial court vide judgment dated 30.11.2017, convicted Muhammad Zubair son of Muhammad Iqbal (convict) and sentenced him as infra: Muhammad Zubair son of Muhammad Iqbal: Death under section 302(b) PPC as Tazir for committing Qatl-i-Amd of Umar Hayat son of Ameer Muhammad (deceased) and directed to pay Rs.200,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased, in case of default thereof, the convict was further directed to undergo six months of simple imprisonment. The convict was ordered to be hanged by his neck till dead.
The co-accused namely Muhammad Naeem son of Muhammad Hussain was acquitted by the learned trial court.
2. Feeling aggrieved, Muhammad Zubair son of Muhammad Iqbal (convict) lodged Criminal appeal No.1169 of 2017 against his conviction and sentence. The learned trial court submitted Murder Reference No.103 of 2017 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Muhammad Zubair son of Muham mad Iqbal. We intend to dispose of the Criminal Appeal No. 1169 of 2017 and Murder Reference No.103 of 2017 through this single judgment.
3. Precisely the facts necessary , as divulged in the statement of Ameer Muhammad son of Mehram Khan (PW-1) are as under:- "Stated that I am resident of Patwali and Retired School Teacher and presently I am running a shop Toffees and stationary near Girls High School and Girls Primary School, Patwali. I have three sons. My elder son Muhammad Bashir is married and and serving in Faisalabad Mills. My second son Umar Hayat deceased was un-married and was aged about 22 years. My third son is Muhammad Afaq who had recently passe d Matric examination some time before the occurrence. W e were having some goats which were grazed by my son Umar Hayat deceased.
On 22.03.2014 in routine my son Umar Hayat was grazing the goats near Girls High School and Girls Primary School, Patwali. I was going towards my home to take meal for him when on the way my son Afaq met who was bringing meal for Umar Hayat. The myself and Muhammad Afaq, both father and son took meal and went to Umar Hayat and asked Umar Hayat to take the meal. When in the meanwhile at 11:30 am, Muhammad Zubair accused son of Muhammad Iqbal present in the Court in custody armed with a pistol and Muhammad Naeem son of Muhammad Hussain accused present in the Court armed with Rifle having the common intention and previous mutual consultation, with the intention of committing his murder came there raising Lalkara and said to Umar Hayat that they would teach him a lesson for filing the suit in Family Court, Talagang. Then Muhammad Zubair accused fired a straight shot with his pistol with the intention to kill upon Umar Hayat and this fire shot hit Muhammad Hayat on right side of his chest and simultaneou sly Muhammad Naeem accused fired shot from his rifle with the intention of murder of Umar Hayat and this fire shot hit on the knee (Ghutna) of right leg whereupon Umar Hayat fell down.
Upon our hue and cry, Muhammad Afzal PW son of Muhammad Khan, resident of Patwali who was at that time passing nearby of that place saw the whole occurrence. Umar Hayat succumbed to the injuries at the spot and the accused while waiving their weapons ran away towards Khudar side.
The motive for commission of the occurrence is that Muhammad Zubair accused was married to my daughter Sajida Bibi in 2011 and they a (sic) son Adeel Zubair who was then aged one and half year. In July 2013 Muhammad Zubair accused had divorced my said daughter and we had filed suit for maintenance of the child against Muhammad Zubair and on the day of occurrence that case was fixed for hearing in Court. Zubair accused had contracted his second marriage about three months before this occurrence, due to this grudge Muhammad Zubair and Muhammad Naeem accused after mutual consultation had killed my son Umar Hayat with firearm weapons. Occurrence was witnessed by myself, my son Muhammad Afaaq PW and Muhammad Afzal PW .
On the same day. I got recorded my statement Exh.P A before the police which bears my signature Exh.P A/1 regarding this occurrence but that statement was not recorded correctly by the police. The police, on the same day had recovered blood stained earth which was made into sealed parcel and was taken into possession and also recovered three empties of 30-bore P-1/1-3 which were also made into separate sealed parcel and said articles were taken into possession vide recovery memo Exh.PB which was attested by me and Muhammad Afzl PWs. My signatures over Exh.PB are Exh.PB/1.
After getting free from the investigation myself and Muhammad Afzal PW went from the spot to THQ hospital, Talagang where Taj Muhammad , lumberdar son of Sultan Muhammad , r/o Patwali was already present there near dead body of Umar Hayat and he along with myself and Muhammad Afzal PW had correctly identified the dead body of Umar Hayat before the doctor before and after postmortem correctly and after the postmortem I had received the well stitched dead body of Umar Hayat clad in coffin vide receipt Exh.PC.
My grievance is that the police due to connivance with the accused had not correctly recorded our statements and did not effect recovery of weapon of offence from Muhammad Naeem accused and did not conduct independent investigation on correct lines and a result of investigation Muhammad Naeem accused was wrongly declared as innocent in this case, therefore, I lost confidence in the police and filed this private complaint case bearing No. 34 dated 08.05.2014 Exh.PD through my counsel and it bears my signature Exh.PD/1.. "
4. The accused i.e. the appellant and his co-accused namely Muhammad Naeem son of Muhammad Hussain (since acquitted), were summoned to face trial in the case instituted upon the private complaint titled "Ameer Muhammad Vs. Muhammad Naeem and another" (relating to FIR No. 34 of 2014 dated 22.03.2014 registered at Police Station Tamman District Chakwal) in respect of offences under sections 302 and 34 PPC for committing the Qatl-i-Amd of Umar Hayat son of Ameer Muhammad (deceased).The learned trial court framed the charge against the accused on 21.07.2014, to which the appellant pleaded not guilty and claimed trial.
5. The complainant in order to prove its case got statements of as many as three witnesses recorded. The ocular account of the case was furnished by Ameer Muhammad (PW-1) and Muhammad Afzal (PW-2). Muhammad Bashir (PW-3) stated that on 06.04.2014 the appellant got recovered pistol P-2 and two live bullets P-3/1-2 which were taken into possession by the Investigatin g Officer through recovery memo (Exh.P E). The learned trial court also examined as many as eight witnesses as court witnesses. Muhammad Khan 240/C (CW-1) stated that on 27.03.2014 Farhat Ali Khan 209/MHC (CW-6) handed over to him one sealed parcel said to contain blood stained earth and one sealed parcel said to contain empties for their onward transmission to the office of Punjab Forensic Science Agency , Lahore. Atif Mahmood 882/C (CW-2) stated that on 10.04.2014 Farhat Ali Khan 209/MHC (CW-6) handed over to him one sealed parcel said to contain a pistol which he deposited in the office of Punjab Forensic Science Agency , Lahore. Abdul Jalil Patwari (CW-4) prepared the scaled site plan of the place of occurrence (Exh.CW -4/A). Misri Khan 394/C (CW-5) stated that on 22.03.2014 he escorted the dead body of the deceased for the post mortem examination and also received the last worn cloth of the deceased. Rafaqat Ali Khan 590/HC (CW-7) stated that on 13.04.2014 he received Call Data Record through an e-mail. Muhammad Aslam Kalra SI (CW-8) investigated the case from 22.03.2014 till 16.04.2014, arrested the appellant on 30.03.2014 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court.
6. The learned trial court also examined Dr. Nazeer Ahmad (CW-3), who on 22.03.2014 was posted as Medical Officer at THQ Hospital, Talagang and on the same day conducted the postmortem examination of the dead body of Umar Hayat son of Ameer Muhammad (deceased). Dr. Nazeer Ahmad (CW-3), on examining the dead body of Umar Hayat son of Ameer Muhammad (deceased) observed as under: "Following injuries were observed and noted on the dead body of Umar Hayat deceased.
1. A firearm entry wound (9mm x 9 mm) on the back 2cm from mid line 14 cm from back of lower part of neck.
2. A firearm exit wound (2 x1.5 cm) was present on the front of right chest, 2.5 cm above the right nipple.
3. A firearm entry wound (9 mm x 9 mm) on the lower part of right and back of right thigh above the popleateal (sic) fossa.
4. Exit wound 2 cm x 1.5 cm on the mid part of right patella. In the cranium and spinal cord all organs were intact while in the thorax on opening the chest it was full of blood and right lung was badly injured, and blood vessels were also injured while other organs were intact.
Abdomen.
In the stomach some amount of food particles was present and all organs were intact.
Upper and Lower limbs.
In the upper and lower limbs region right patella was fractured, everything else was normal.
Opinion.
In my opinion, firearm injuries No.01 & 02 causing damage to vital organs (right lung and great vessels) was sufficient to cause death in ordinary course of nature. Time between injuries and death was immediate whereas time between death and postmortem was five to six hours. Same was my final opinion as noted in the Postmortem report."
7. On 10.01.2017, the complainant, gave up witnesses namely Muhammad Afaq, Taj Muhammad and Mudasir Hayat as being unnecessary . On 02.06.2 017 the learned ADPP closed the prosecution evidence after tendering in evidence the report of Punjab Forensic Science Agency , Lahore regarding earth (Exh.PF) and the report of Punjab Forensic Science Agency , Lahore regarding the examination of pistol and empties (Exh.PG).
8. After the closure of prosecution evidence, the learned trial court examined the appellant namely Muhammad Zubair son of Muhammad Iqbal under section 342 Cr.P.C. and in answer to questio n why this case against you and why the PWs have deposed against you, he replied that he had been involved in the case falsely and was innocent. The appellant namely Muhammad Zubair son of Muhammad Iqbal opted not to get himself examined under section 340(2) Cr .P.C and did not adduce any evidence in his defence.
9. On the conclusion of the trial, the learned Additional Sessions Judge, Talagang, District Chakwal convicted and sentenced the appellant as referred to above.
10. The contention of the learned counsel for the appellant precisely is that whole case is fabricated and false and the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence. Learned counsel for the appellant, further contended that the story of the prosecution mentioned in the F.I.R., on the face of it, is highly improbable. Learned counsel for the appellant further contended that the statements of the prosecution witnesses were not worthy of any reliance. The learned counsel for the appellant also submitted that the recovery was full of procedural defects, of no legal worth and value and result of fake proceedings. The learned counsel for the appellant also argued that the appellant had been involved in the occurrence due to enmity . The learned counsel for the appellant finally submitted that the prosecution has totally failed to prove the case against the accused beyond the shadow of a doubt.
11. On the other hand, learned Deputy Prosecutor General contended that the prosecution has proved its case beyond a shadow of a doubt by producing independent witnesses. The learned Deputy Prosecutor General further argued that the deceased died as a result of injuries suffered at the hands of the appellant. The learned Deputy Prosecutor General further contended that the medical evidence also corroborated the statements of Ameer Muhammad (PW-1) and Muhammad Afzal (PW-2).The learned Deputy Prosecutor General further argued that the recovery from the appellant also corro borated the ocular account. The learne d Deputy Prosecutor General contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real of fender with the innocent in this case. Lastly , he prayed for the rejection of the appeal.
12. We have heard the learned counsel for the appellant, the learned Deputy Prosecutor General and with their assistance perused the record and evidence recorded during the trial.
13. The whole prosecution case revolves around the statements of Ameer Muha mmad (PW-1) and Muhammad Afzal (PW-2). These witnesses namely Ameer Muhammad (PW-1) and Muhammad Afzal (PW-2) were related inter se. Their relationship with the deceased is also on record. Umer Hayat (deceased) was the son of Ameer Muhammad (PW-1) and maternal nephew of Muhammad Afzal (PW-2). According to Abdul Jalil Parwari (CW-4), the occurrence took place in the land owned by Ghulam Raza, Ijaz Hussain, Ghulam Raza and others (not produced), which place was at a distance from the residences of the witnesses. Ameer Muhammad (PW-1) during cross examination stated that his house was at a distance from the place of occurrence and further stated that his shop, from where he was going to his house for taking meal for his son Umer Hayat (deceased) before the occurrence, was at a distance of 3/4 Kilometers from his house. Similarly , Muhammad Afzal (PW-2) stated that when he was going to his work and reached near the occurrence then he was able to witness the occurrence. This narration of Muhammad Afzal (PW-2) also establishes that he was not the resident of the place of occurrence. It is an admitted fact that none of the prosecution witnesses namely Ameer Muhammad (PW-1) and Muhammad Afzal (PW-2) had their residences, shops or their lands at the place of occurrence or near the same. They were all "chance witnesses" and were under a duty to explain their presence at the place of occurrence at the time of occurrence. We have also perused the scaled site plan of the place of occurrenc e (Exh.CW -4/A) as prepared by Abdul Jalil Patwari (CW-4) and the rough site plan (Exh.CW -8/A) as prepared by Muhammad Aslam Kalera, SI (CW-8) and find that neither any house, land or any shop belonging to Ameer Muhammad (PW-1) and Muhammad Afzal (PW-2) is marked in the same. The reason for the presence of Ameer Muhammad (PW-1) at the place of occurrence at the time of occurrence was that as he was going to his home to get meal for Umer Hayat (deceased), however , on his way he met his other son namely Afaq (not produced) and as the said Afaq (not produced) was already carrying the meals for him and his son Umer Hayat (dece ased) therefore, they all went to the place where Umer Hayat (deceased) was grazing cattle to have the meal with him. However , during the cross examination Ameer Muhammad (PW -1) admitted as under: "It is correct that no utensils or the bread-keeping clothe or any other article pertainining to the meal was not recovered in this case from the spot/place of occurrence by the police."
This portion of the cross examination clearly establishes that there no physical proof of the presence of the said witness at the place of occurrence at the time of occurrence. Muhammad Aslam Kalera SI (CW-8), the Investigating Officer of the case, did not collect any evidence to establish the reason for the presence of the witnesses at the place of occurrence as mentioned by them. In the same manner though it was alleged that Umer Hayat (deceased) was present at the place of occurrence for the purpose of grazing cattle, however , the Investigating Officer of the case did not take into possession any such cattle as a proof of the said assertion of the prosecution witnesses. On the other hand Muhammad Afazal (PW-2) did not offer any plausible reason for his presence at the place of occurrence and only made a nondescript statement that he was there as he was going for his work. Muhammad Afzal (PW-2) did not provide any further details with regard to the reason for his presence at the place of occurrence. Further more, according to the rough site plan (Exh.CW -8/A) as prepared by Muhammad Aslam Kalera, SI (CW-8), at the place of occurre nce, Govt. Girls Primary School was situated at the estern side whereas Govt. Girls High School was situated at the western side of the place of occurrenc e, however , none from the said schools appeared as a witness before the learned trial court or during the investigation of the case. Further more, the persons namely Ghulam Raza, Ijaz Hussain, Ghulam Raza and others , in whose land the occurrence took place, neither joined the investigation of the case nor appeared as witnesses before the learned trial court to support the said assertion. All these omissions noted above, reflect poorly on the prosecution case. In this manner , the prosecution witnesses have failed miserably to establish the reason for their presence at the place of occurrence at the time of occurrence. All these omissions are conspicuous by their absence. In absence of physical proof or the reason for the presence of the witnesses at the crime scene, the same cannot be relied upon. In this respect, reliance is placed on the case of "Muhammad Rafiq v. State" (2014 SCMR 1698 ) wherein the august Supreme Court of Pakistan rejected the claim of witnesses who lived one kilo metre away from the occurrence, but on the day of occurrence stated to be present near the spot as they working as labourers, inasmuch as they failed to give any detail of the projects they were working on. Reliance is also placed on the case of "Usman alias Kaloo v. State" (2017 SCMR 622) wherein the august Supreme Court of Pakistan held that the ocular account of the incident had been furnished by Zahoor Ahmad complainant (PW-3), Ghulam Farid (PW-6) and Manzoor Ahmed (PW-7) who were all residents of some other houses and they were not inmates of the house wherein the occurrence had taken place and he said eye-witnesses were, thus, chance witnesses and not worthy of reliance .Reliance is also placed on the case of "Nasrullah alias Nasro v. The State" (2017 SCMR 724) wherein the august Supreme Court of Pakistan observed as under:- "In the case in hand the eye-witnesses produced by the prosecution lived eighty kilometers away from the scene of the crime, their stated reason for presence in the house of occurrence at the time of incident in issue had never been established through any independent evidence."
14. We have also noted with grave concern that the ocular account of the occurrence as furnished by Ameer Muhammad (PW-1) and Muhammad Afzal (PW-2) is damaged beyond repair as it is contrary to the medical evidence available on record. Ameer Muhammad (PW -1) stated before the learned trial court as under:- "Then Muhammad Zubair accused fired a straight shot with his pistol with the inten tion to kill upon Umar Hayat and this fire shot hit Muhammad Hayat on right side of his chest".
Similarly , Muhammad Afzal (PW -2) also stated as under:- "Muhammad Zubair made a straight fire upon Umer Hayat which hit him on the right side of his chest."
Both the witnesses namely Ameer Muham mad (PW-1) and Muhammad Afzal (PW-2) stated that the deceased had received the fire made by the appellant on the right side of his chest . During cross examination Ameer Muhammad (PW-1) and Muhammad Afzal (PW-2) were questioned with regard to the seat of injury attributed to the appellant and both remained adamant that the fire allegedly made by the appellant hit on the front side of the chest of Umer Hayat (deceased). Muhammad Afzal (PW -2) in cross examination stated as under: "It is correct that my version before the police as well as in the cursory statement in this private complainant is that allegedly Muhammad Zubair accused made a single fire shot with 30-bore pistol which landed on front side on the chest of Umer Hayat deceased if someone says that infact the said wound was exit wound, it is his version not my version."
A perusal of the postmortem examination as conducted by Dr. Nazir Ahmad (CW-3) reveals that he observed only an exit wound on the chest of the deceased which was mentioned by him as injury No.2 whereas the entry wound of the said injury was observed by him on the back of the deceased, 14 cm from the lower part of the neck. Dr. Nazir Ahmad (CW -3) in his statement before the learned trial court stated as under:- "1 A firearm entry wound (9 mm x 9 mm) on the back 2cm from mid line 14 cm from back of lower part of neck.
2 A firearm exit wound (2x1.5 cm) was present on the front of right chest, 2.5 cm above the right nipple."
The statements of both the witnesses namely Ameer Muhammad (PW-1) and Muhammad Afzal (PW-2) are contradicted by the observations of Dr. Nazir Ahmad (CW-3), who conducted the post mortem examination of the deceased. As mentioned above, Dr. Nazir Ahmad (CW-3) did not observe any entry wound on the chest of the deceased though both the witnesses namely Ameer Muhammad (PW-1) and Muhammad Afzal (PW 2) had asserted the said observation. There exist contradictions in the ocular account of the occurrence, as narrated by the witnesses namely Ameer Muhammad (PW-1) and Muhammad Afzal (PW-2) and the medical evidence, which are irreconcilable. These major contradictions in the statements of the witnesses of the ocular account and the medical evidence clearly establish that the eye witnesses, as produced by the prosecution, miserably failed to prove their presence at the place of occurrence and their allegation against the appellant.
15. We have also observed that Dr. Nazir Ahmad (CW-3) opined that at the time of postmortem examination rigor mortis was fully developed. Before proceeding any further , it would be advantageous to mention here that rigor mortis is a term which stands for the stiffness of voluntary and involuntary muscles in human body after death. It starts within 2 to 4 hours of death and fully develops in about 12-hours in temperate climate. Similarly , the reverse process with which rigor mortis disappea rs is called alg or mortis. In support of duration required to develop rigor mortis, an extract from "The Principles And Practice Of Medical Juris prudence" by Alfred Swaine Taylor , MD, is being referred hereunder:- "In sudden natural deaths occurring in a temperate climate during average seasonal conditions rigor mortis usually commences within 2 to 4 hours of death. It reaches a peak in about 12 hours and starts to disappear after another 12 hours. The cadaver becoming limp some 36 hours after death."
Likewise, Dr. S. Siddiq Husain in Chapter-V of his book "Forensic Medicine and Toxicology" , observed that in temperate climate the rigor mortis completes in 8 to 12 hours. Similarly , William Carroll in his research article titled as "An Examination of Muscle Function" , has declareda similar duration for rigor mortis to develop. The occurrence statedly took place at 11.30 a.m. whereas the autopsy was conducted at 5.30 p.m. The development of complete rigor mortis on the body of the deceased in the month of March, contradicts the time of occurrence deposed by the witnesses. In the month of March, development of rigor mortis within such short span of time is implausible and the occurrence does not appear to have taken place at the point of time mentioned by the witnesses. The August Supreme Court of Pakistan in the case of "Noor Ahmad vs. The State and others" (2019 SCMR 1327 ) has held as under: "Occurrence statedly took place at 10.00 a.m. whereas the autopsy was conducted at 5.00 p.m. development of complete rigor mortis on the body of a young lady in hot weather , belies point of time of assault given in the crime report".
The August Supreme Court of Pakistan in the case of Asad Rehmat vs. The State and others" (2019 SCMR 1156) has held as under: "Occurrence, statedly , took place at 2.00 p.m., autopsies started 4.30 p.m., concluded at 9.00 p.m. Muhammad Hayat was examined first; the medical officer noted rigor mortis. Same is the case with other corpses. In the month of March , development of rigor mortis within such short span of time is mind boggling; occur rence does not appear to have taken place at the point of time mentioned in the crime report."
In the aftermath of the above-discussio n, we are swayed to hold that time of occurrence as deposed by the eyewitnesses is not free from uncertainty .
16. We have also noted that despite the fact that the matter was reported to the police at 1.05 p.m., when the oral statement (Exh.P A) of Ameer Muhammad (PW-1) was recorded, the postmortem examination on the person of the deceased was conducted at 5.30 p.m i.e. after 4 1/2 hours of the recording of oral statement (Exh.P A) and after about six hours of the occurrence. This clearly establishes that the oral statement (Exh.P A), which was recorded at 1.05 p.m. by Muhammad Aslam Kalra, SI (CW-8) was prepared after consultation and concert. We have also perused the postmortem report (Exh.PB) and according to the entries made in the same, the dead body was received at 4.45 p.m. whereas the complete documents from the police were received at 4.30 p.m. This delayed receiving of complete documents from the police clearly establishes that the time of recording the oral statement (Exh.P A) mentioned as 1.05 p.m. is manipulated. According to the prosecution witnesses, the oral statement (Exh.P A) was recorded at 1.05 p.m and the formal FIR (Exh.PC) was registered at 1.40 p.m, however , as mentioned above, it took yet another three hours to provide the necessary documents to the medical officer enabling him to initiate the postmortem examination. It has been repeatedly held by the August Supreme Court of Pakistan that such delay is reflective of the absence of witnesses and the sole purpose of causing such delay is to procure the presence of witnesses and to further advance a false narrative to involve any person. Reliance is placed on the cases of "Khalid alias Khalidi and two others vs. The State" (2012 SCMR 327 ,"Mian SOHAIL AHMED and others vs. The State and others" (2019 SCMR 956) and "MUHAMMAD RAFIQUE alias FEEQA vs. The State" ( 2019 SCMR 1068 )
17. Learned Deputy Prosecutor General has laid much stress on the promptitude in reporting the matter to the police. The oral statement of Ameer Muhammad (PW-1) was reduced into writing by Muhammad Aslam Kalra, SI (CW-8) who sent the said statement (Exh.P A) to the police station where Farhat Ali Khan 209/MHC (CW-6) registered the formal FIR (Exh.PC). According to the prosecution case Muhammad Aslam Kalra, SI (CW-8) got information about the occurrence and reached the place of occurrence. No one out of the eye witnesses had told him about the occurrence. We have also observed that none of the witnesses including Ameer Muhammad (PW-1) and Muhammad Afzal (PW-2) ever proceeded from the place of occurrence to report the matter to the police till the arrival of Muhammad Aslam Kalra, SI (CW-8), the Investigating Officer of the case, at the place of occurrence. This has left no doubt in our minds that the witnesses were not present at the place of occurrence at the time of occurrence and proves that the said oral statement reduced into writing as Exh.P A is just a compromised and fake document. The August Supreme Court of Pakistan in the case of Abdul Jabbar alias Jabbari v. The State (2017 SCMR 1 155) has observed as under: "An FIR in respect of the incident in issue had not been lodged at the local Police Station giving rise to an inference that the FIR had been chalked out after deliberations and preliminary investigation at the spot."
18. Learned Deputy Prosecutor General has also relied upon the recovery made from the appellant. The recovery of the pistol (Exh.P-2) from the appellant namely Muhammad Zubair cannot be relied upon as the Investigating Officer of the case, did not join any witness of the locality during the recovery of the said pistol (Exh.P-2) from the appellant which was in clear violation of section 103 Cr.PC and therefore cannot be used as incriminating evidence against the appellant, being evidence which was obtained through illegal means and is hence hit by the exclusionary rule of evidence. The august Supreme Court of Pakistan in the case of Muhammad Ismail and others Vs. The State ( 2017 SCMR 898 ) at page 901 has held as under:- "For the above mentioned recovery of weapons the prosecution had failed to associate any independent witness of the locality and, thus, the mandatory provisions of section 103, Cr .P.C. had flagrantly been violated in that regard."
19. Learned Deputy Prosecutor General has also relied upon the evidence of motive and submitted that it corroborated the ocular account. The motive of the occurrence, given in the oral statement (Exh.P A), was that there was a case pending at the civil court .No further details of said motive were mentioned in the oral statement (Exh.P A). Then Ameer Muhammad (PW-1), while appearing before the learned trial court, improved upon his oral statement (Exh.P A) and got recorded the following statement regarding the motive of the occurrence:- "The motive for commission of the occurrence is that Muhammad Zubair accused was married to my daughter Sajida Bibi in 2011 and they a (sic) son Adeel Zubair who was then aged one and half year. In July 2013 Muhammad Zubair accused had divorced my said daughter and we had filed suit for maintenance of the child against Muhammad Zubair and on the day of occurrence that case was fixed for hearing in Court. Zubair accused had contracted his second marriage about three months before this occurrence, due to this grudge Muhammad Zubair and Muhammad Naeem accused after mutual consultation had killed my son Umar Hayat with firearm weapons."
According to Ameer Muhammad (PW-1) the appellant had divorced his daughter Sajida Bibi in July 2013 whereas this occurrence took place on 22.03.2014. The said Sajida Bibi never appeared before the Investigating Officer during the investigation of the case or before the learned trial court in support of the said motive. Furthermore, no documentary evidence in the shape of the copy of suit which had allegedly been filed by the daughter of the complainant was produced during the investigation of the case or during trial so as to support the said assertion of pendency of the suit being the motive of the occurrence .The prosecution witnesses did not even mention the date of filing the suit against the appellant, which factor was relevant in order to determine the truth fulness of the motive alleged, and the fact that the said motive was so compelling that it could have led the appellant to have committed the Qatl-i-Amd of the deceased. Moreover , the prosecution could not prove that Umar Hayat deceased had been pursuing the case on behalf of his sister as against the appellant. No witness or any documentary evidence was produced during the trial of the case to prove that Umar Hayat deceased had ever attended the proceedings of the said suit as filed by Sajida Bibi. Moreover , Muhammad Aslam Khan Kalra, SI (CW-8), the Investigating Officer of the case, admitted during cross-examination that the said motive, as narrated by Ameer Muhammad (PW-1) in his statement before the learned trial court, was not brought to his notice during the investigation of the case.
Muhammad Aslam Khan Kalra, SI (CW -8) admitted during cross-examination as under:- "It is correct that throughout the investigation nothing came to light that Umar Haya t in his own name had filed any case against the accused and this was never alleged by the complainant side. It is correct that in Exh. CW-6/A it has not been mentioned that wife of accused Zubair has filed any suit for maintenance against accused Zubair and deceased Umar Hayyat deceased was pursuing the case. Confronted with Exh. PA where there is also not mention of filing of any such suit by the sister of the deceased or its being pursued by Umar Hayyat deceased.
There is a haunting silence with regard to the minutiae of motive alleged. No independent witness was produced by the prosecution to prove the motive as alleged. A tainted piece of evidence cannot corroborate another tainted piece of evidence. The august Supreme Court of Pakistan has held in the case of Muhammad Javed v. The State (2016 SCMR 2021 ) as under: "The said related and chance witnesses had failed to receive any independent corroboration inasmuch as no independent proof of the motive set up by the prosecution had been brought on the record of the case."
It is an admitted rule of appreciation of evidence that motive and recovery are only corroborative pieces of evidence and if the ocular account is found to be unreliable then motive and recovery have no evidentiary value and lost their significance.
20. Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of Muhammad Zubair son of Muhammad Iqbal, appellant, in the present case. It is settled principle of law that for giving the benefit of the doubt it is not necessary that there should be so many circumstances rather if only a single circumstance creating reasonable doubt in the mind of a prudent person is available then such benefit is to be extended to an accused not as a matter of concession but as of right. The august Supreme Court of Pakistan in the case of Muhammad Mansha Vs. The State ( 2018 SCMR 772 ) has enunciated the following principle: "Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345 ), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221 ), Muhammad Akram v . The State ( 2009 SCMR 230 ) and Muhammad Zaman v .The State ( 2014 SCMR 749 )."
Reliance is also placed on the judgment of the august Supreme Court of Pakistan Muhammad Akram Vs. the State ( 2009 SCMR 230 ) in which it has been observed in paragraph No.13 of page 236 as infra: "It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."
21. For what has been discussed above Criminal Appeal No.1169 of 2017 lodged by Muhammad Zubair son of Muhammad Iqbal (appellant) is accepted and the conviction and sentence of the appellant awarded by the learned trial court through the impugned judgment dated 30.11.2017 are hereby set-aside. Muhammad Zubair son of Muhammad Iqbal (appellant) is ordered to be acquitted Muhammad Zubair son of Muhammad Iqbal (appellant) is directed to be released forthwith if not required in any other case.
22. Murder Reference is answered in Negative and the death sentence of Muhammad Zubair son of Muhammad Iqbal is Not Confirmed .