ATHAR MINALLAH, C J.---Through this consolidated judgment, we shall decide Criminal Appeal No.77 of 2015, titled 'Wasiq Nazir Satti v. The State' and, in addition, answer the Murder Reference No.08 of 2015, titled 'The State v. Wasiq Nazir Satti'. Wasiq Nazir Satti s/o Capt. (Retd) Muhammad Nazir Satti (hereinafter referred to as the "Appellant ") was charged for allegedly the commission of an offence under section 302 of the P.P.C. and on conclusion of the trial he was convicted and sentenced by the learned Additional Sessions Judge-HI (East), Islamabad vide judgment, dated 14.04.2015, in the following terms:-- "as a sequel to the foregoing discussions, prosecution has brought home the charge of Qatl-i-amd of deceased Aamir Shahzad, committed by accused/W asiq Nazir Satti, facing trial, in furtherance of common intention of absconding co-accused Muhammad Nazir Satti (since PO) by making three fire shots on deceased, on 17.10.2010, beyond reasonable shadow of doubt. Accused Wasiq Nazir Satti is therefore convicted under section 302(b) P.P.C. and is sentenced to death by way of Tazir. He be hanged by his neck till his death. However , the execution of this sentence shall be subject to its confirmation by the Hon'ble Islamabad High Court, Islamabad under section 374 Cr.P.C. In addition thereto, he shall also pay a sum of Rs.50,000/- (Rupees fifty thousand only) by way of compensation to the legal heir of the deceased as envisaged under section 544-A Cr. P. C. and in default of payment whereof, he shall further undergo six months' S.I. The said amount of compensation shall be recovered from him as arrear of land revenue."
2. The facts, in brief, are that Khalid Mehmood Butt son of Muhammad Sadiq Butt (PW-9) (hereinafter referred to as the "Complainant ") recorded his statement (Ex-P A) and pursuant thereto FIR No.504, dated 17.10.2010 (Ex- PA/1), was registered at Police Station Shahzad Town, Islamabad for commission of offences under sections 302 and 34 of the Pakistan Penal Code, 1860 (hereinafter referred to as the "P.P.C."). It was asserted in the FIR that on 17.10.2010, at about 4.30 pm, the Complainant and his two brothers, namely , Tariq Mehmood Butt (Pw-10) and Kamran Mehmood Butt (who did not enter the witness box) went to see their brother , namely , Aamir Mehmood Shahzad (hereinafter referred to as the "Deceased ") at the latter's business premises situated at Farooq Plaza, Ali Pur Farash, Islamabad. The Deceased was engaged in the business of managing and operating a jewellery outlet.
It was stated that he had purchased an under construction house in the housing scheme, namely , Madina Town, which was close to his business premises. The Deceased had bought three sheep which were kept at the business premises during the day and left at the under construction house at night. The Appellant was managing and operating his business in the shop situated adjacent to that of the Deceased. He came to the shop of the Deceased while the Complainant and his other brothers were there. After a while the Deceased informed the Complainant and his other brothers that he will accompany them to his house after tethering the sheep in the under construction house. The Appellant volunteered to assist by accompanying the Deceased and both left together leaving the others in the business premises. The Complainant and his brothers later followed the Deceased and the Appellant because two of them wanted to see the under construction house bought by their brother . When they reached the street where the under construction house was located, they saw the Appellant's father , namely , Muhammad Nazir Satti son of Daleel Khan Satti (hereinafter referred to as the "acquitted accused "), instigating his son in a loud voice to kill the Deceased before his brothers arrive. The Complainant asserts that they heard a shot being fired from a firearm weapon and when they reached the under construction house they witnessed the Appellant holding a 30 bore pistol and firing at the Deceased twice. The Appellant and his father fled from the crime scene and the Deceased, who was lying on the ground, displayed no signs of being alive.
3. On receiving information, police officials, led by Abdul Waheed, Sub Inspector (PW-11) (hereinafter referred to as the "Investigating Officer "), arrived at the crime scene. The latter conducted a body search of the Deceased and took into possession personal items/cards vide recovery memo (Ex-PW -9/A). He prepared the inquest report, (Ex- PW-1/B), and took into possession blood stained earth vide recovery memo (Ex-PW -8/B). Three empties, stated to have been fired from a .30 bore pistol and one live bullet, were also taken into possession vide recovery memos (Ex-PW -9/B) and (Ex-PW -10/2), respectively . The Investigating Officer prepared an application for conducting a postmortem (Ex-PW -11/A) and another application (Ex-PW -11/B) for keeping the body of the Deceased in the mortuary . The Investigating Officer prepared the un-scaled site plan (Ex-PW -11/D). The autopsy of the Deceased was conducted at 10:00 am the next day i.e on 18.10.2010. The Appellant was arrested on 21.10.2010 and on 25.10.2010 he led the Investigating Officer to the place from where a 30 bore pistol was recovered and it was taken into possession vide recovery memo (Ex-PW -5/B). The postmortem report, (Ex-PW -1/A/1-6), was received by the Investigating Of ficer on 25.10.2010 and the injuries described therein were as follows:- i. Entry wound lx1.5 cm circular , inverted margins blood stained 8cm back from right ear, occipital region on skull tattooing present. ii. Exit wound 2x1 cm, irregular averted margins 1cm above from left ear . iii. Entry wound lxlcm circular inverted margin blood stained 9cm from midline on left from chest 25cm from above tattooing present. iv. Exit wound 1-1/2 x 1-1/2 cm irregular averted margin blood stained 21cm from above 7cm from midline left back of chest. v. Entry wound lxlcm circular inverted margins blood stained 25cm from above and 10cm from middle line and 2cm nipple left front of chest tattooing present. vi. Exit wound 1.5 x 1.5cm irregular averted margins 25cm blood stained from abov e 6 cm from midline left back of chest."
4. Bashir Ahmed Awan, (PW-6), prepared the scaled site plan (Ex-PW -6/A/1-4). The parcel containing blood stained earth and the empties/bullet were sent to the Forensic Science Laborat ory Punjab, Lahore (hereinafter referred to as the "Laboratory ") on 05.11.2010. The parcel containing the crime weapon i.e. a .30 bore pistol was later sent to the Laboratory on 02.12.2010. The Laboratory , vide its report dated 20.05.201 1 (Ex-PC), recorded its opinion to the effect that the crime weapo n and the empties did not match. The Serologist Government of Punjab, Lahore, vide its report dated 19.03.201 1, (Ex-PD), confirmed that the earth was stained with human blood. The Investigating Officer also took into posses sion three cheques vide recovery memo (Ex-PW -8/G). The father of the Appellant, namely , Muhammad Nazir Satti did not surrender before the Investigating Officer and, therefore, his warrant of arrest was issued on 04.01.201 1. He was declared a proclaimed offender on 11.01.201 1. He later surrendered and on conclusion of trial was acquitted of the charge by the learned Additional Sessions Judge-IV - (East), Islamabad vide judgment, dated 10.07.2019. The charge against the Appellant was framed by the learned trial Court on 19.02.201 1 to which he did not plead guilty . The prosecution produced witnesses before the learned trial court while the Appellant preferred not to be examined on oath and, therefore, his statement under section 342 of the Code of Criminal Procedure, 1898 was recorded. After affording an opportunity of hearing to the parties, the learned trial Court, vide judgment dated 14.04.2015, convicted and sentenced the Appellant in the above reproduced terms.
5. The learned counsel for the Appellant has contended that; the ocular evidence is not reliable because no plausible explanation was given for the presence of the witnesses at the crime scene; the contradictions in their statements and their stance is not corroborated; the evidence has been fabricated because the witnesses were not present at the time of the commission of the crime; the scaled site plan negates their testimony; the medical evidence is contrary to the version of the prosecution; there was no explanation for the delay in conducting the postmortem; the recovery of the firearm weapon, alleged to have been used for the commission of the offence, is shrouded in mystery; there is no explanation for the delay in sending the firearm weapon for chemical examination; the report of the laboratory negates the prosecution story; motive could not be proved; reliance has been placed on "Muhammad Ismail v. State " 2017 SCMR 713' "Mst. Rukhsana Begum v. Sajiad " SCMR 596' "Haleem v.
State ", 2017 SCMR 709, "Abdul Jabber alias Jabbari v. State " 2017 SCMR 1155; "Shahbaz v. The State ", 2016 SCMR 1763 .
6. The learned counsel for the Complainant has argued that; the prosecution had successfully established its case beyond a reasonable doubt; the contr adictions pointed out by the learned counsel for the Appellant are inconsequential and minor in nature; the delay in conducting the autopsy has been explained; the time of occurrence and place of occurrence are not disputed.
7. The learned State Counsel has adopted the arguments advanced by the learned counsel for the Appellant and has strenuously argued that the prosecution had proved its case beyond a reasonable doubt.
8. The learned counsel and the learned State Counsel have been heard and the record perused with their able assistance.
9. It is an admitted position that the deceased was living in Kallar Syedan, District Rawalpindi, which is at a considerable distance from Ali Pur Farash, Islamabad where the Deceased had established his business outlet. It is also not disputed that the Deceased lived with the Complainant and would travel every morning to Ali Pur Farash i.e the place of business. It is the case of the prosecution that the Complainant used to visit the Deceased every Sunday despite the fact that they lived together in Kallar Syedan and would meet daily. According to the evidence brought on record, on the fateful day, the Complainant and his two brothers had gone to meet the Deceased at his business outlet. As noted above, the Appellant was managing and operating a business in the shop adjacent to that of the Deceased. According to the ocular testimony of Khalid Mehmood Butt, (PW-9), and Tariq Mehmood Butt, (PW-10), the Appellant had joined them while they were sitting at the business premises of the Deceased. It appears from the depositions that the Appellant and the Deceased had a cordial relationship because if it was otherwise then the latter would have shown some hesitation while accepting the offer of the former to accompany him to the under construction house, leaving his other brothers in the shop. The ocular depositions acknowledge that there was no prior enmity , though they referred to some business dispute. According to the testimony of the two brothers, namely Khalid Mehmood Butt, (PW-9), and Tariq Mehmood Butt, (PW-10), the reason stated for following the Deceased and the Appellant was the desire of the two brothers to see the under construction house.
There is no explanation as to whether they had closed the shop or left it open or whether someone else was left behind. It is also unexplained as to who used to take care of the sheep at night in the under construction house because, according to the witnesses, the Deceased lived at a considerable dista nce. The depositions of Khalid Mehmood Butt, (PW-9), and Tariq Mehmood Butt, (PW-10), are not confidence inspiring nor have been found to be unimpeachable in order to establish their presence at the crime scene when the murder had taken place. Both have unequivocally deposed that when they reached the street where the under construction house was located, they saw the acquitted accused i.e the Appellant's father standing outside the gate while the Deceased and the Appellant were not visible because they had already entered the walled premises . According to their testimonies, the acquitted accused fled from the crime scene as soon as he saw them coming. This ocular version is not corroborated by the unsealed nor the scaled plan prepared by the Draftsman. The witnesses deposed that when they entered the premises they witnessed the Appellant firing two shots at the Deceased from a .30 bore pistol.
According to their depositions, the acquitted accused i.e. the father of the Appellant, had not entered the walled premises. The unsealed site plan as well as the scaled site plan prepared by the Draftsman, namely Bashir Ahmed Awan, (PW-6), shows the presence of the acquitted accused inside the under construction house i.e. at point 5 and at a distance of more than three feet from where the Deceased was shot and injured. The two witnesses who deposed regarding the ocular account contradict each other because one rememb ered other shopkeepers visiting the shop when they were there while the other had no such memory . Both the witnesses have confirmed in their respective depositions that there was no previous enmity or, ill will between the Deceased except some business dispute. The events described by the witnesses suggest that the Appellant and the Deceased had a cordial relationship because the Appellant had volunteered to accompany the Deceased to his under construction house and the former accepted without any hesitation. According to the autopsy report, the three entry wounds had tattooing marks. The august Supreme Court, in the case titled "Muhammad Asghar alias Nannah and another v.
The State", 2010 SCMR 1706 has observed and held that tattooing marks could occur when a firearm shot is fired from a close range of less than 3 feet. The prosecution, through cogent and unimpeachable evidence, could not explain beyond a reasonable doubt the existence of tattooing marks. The ocular account deposed by the two witnesses is not corroborated 'by indep endent evidence, rather , it contradicts the material particulars thereof, According to the testimony of one witness who entered the witness box, the Deceased was fired upon from a distance of one foot but the rest of the evidence contradicts this stance. The presence of the three sheep is also shrouded in mystery because their existence has not been established through reliable evidence. Bashir Ahmed Awan, Draftsman, has deposed that no one had informed him about the presence of three sheep and for that reason he did not mention the same in the scaled site plan prepared by him. The recovery of the firearm weapon from the place identified by the Appellant also raises doubts and, in any case, the Laboratory reported that it did not match with the empties that had been recovered from the crime scene. The delay in sending the crime weapon is also unexplained.
10. The august Supreme Court, in the case titled "Muhammad Asghar alias Nannah and another v. The State" , 2010 SCMR 1706 , in the context of reasonability of doubt has observed and held as follows:- "Thus the proof beyond a reasonable doubt should be based on reasons and commonsense, which must be logically based upon the evidence or lack of evidence, however , it cannot be based on sympathy or prejudice, or be imaginary or frivolous. Nevertheless, the prosecution is not required to prove its case to an absolute certainty since such an unrealistically high standard could seldom be achieved. Proof beyond a reasonable doubt does not mean proof beyond all doubts. The law does not require absolute certainty on the part of the Court before it returns a verdict of guilty . The law requires that, after hearing all the evidence, if there is something in the evidence or lack of evidence that leaves in the minds of Judges, as reasonable men reasonable doubt as to the guilt of the accused, then the accused must be given the benefit of that doubt and acquitted, even if the Court/Judge believes that the accused is probably guilty or likely to be guilty , that is not sufficient. Proof beyond a reasonable doubt is proof that precludes every reasonable hypothesis except guilt and is inconsistent with any other rational conclusion.
Reference is invited to (State v. Ryerson, 201 Conn. 333, 342 (1986), (State v. Hires , 243 Conn 796, 820 (1998) and (State v. Denson, 67 Conn, App 803, 802-22 (2002 ). Thus, if the Judge is sure, on the eviden ce produced by the prosecution that the accused has committed the offence, then he should be convicted as it shows that, the Judge is satisfied of guilt of the accused beyond a reasonable doubt."
11. We have carefully perused and considered the evidence brought on record and, for reasons discussed above, we are satisfied on the touchstone of the principles and law enunciated by the august Supreme Court in the above quoted passage, that reasonable doubt ought to be extended to the Appellant. We therefore, allow the Criminal Appeal No.77/2015, titled "Wasiq Nazir Satti v. The State" and consequently set-aside the impugned judgment, dated 14.04.2015. The Appellant is acquitted from the charge by extending him the benefit of doubt. Murder Reference No. 08/2015, titled "The State v. Wasiq Nazir Satti " is thus accordingly answered in the negative. The Appellant shall be released forthwith if not required to be detained in any other case.