Farooq Haider , J.:- This single judgment shall decide Criminal Appeal No. 224 of 2013 and Criminal Revision No. 100 of 2013. Through aforementioned Criminal Appeal No. 224 of 2013, Ahmad Khan (appellant) has assailed judgment dated 17.04.2013 passed by learned Sessions Judge, Bahawalnagar in case arising out of F.I.R. No. 196/2012 dated 01.07.2012 registered under Section 302 PPC at Police Station Faqirwali, District Bahawalnagar; whereby learned trial Court convicted the appellant under Section 302(b), PPC and sentenced him to "Imprisonment for Life" for committing Qatl-i -amd of Muhammad Rafique (deceased) with a direction to pay Rs.100,000/- as compensation to the legal heirs of the deceased under Section 544-A, Cr.P.C. or in default thereof to undergo six months simple imprisonm ent; whereas through Criminal Revision No. 100 of 2013, Mst. Ghulam Fatima (complainant) has sought enhancement of sentence of Ahmad Khan (respondent No.2).
2. Prosecution story in brief as per written application (Ex.P A) submitted by Mst. Ghulam Fatima complainant (PW- 8) to Muhammad Ashraf S.I./Investigating Officer, (PW-12) on the basis of which, above mentioned F.I.R. (Ex.P A/1) was chalked out, is that 1/2 months prior to registration of the case, Ahmad Khan (accused) had kidnapped Mst.
Allah Rakhi (paternal cousin of the complainant), daughter of Jang Sher, she was returned due to intervention of persons of brotherhood, however, accused Ahmad Khan remained in contact with said Mst. Allah Rakhi; on 01.07.2012 at 08:00 a.m., Jang Sher informed that his aforementioned daughter Allah Rakhi was not available in the home; complainant, her husband Muhammad Rafique, her son Muhammad Imran and Ahmad Ali started searching her and reached in a room (without door) in the house of Muhammad Boota, Ahmad Khan (accused/appellant) hidden under the cot, made a straight fire with his pistol .12 bore which hit on the left side of chest of Muhammad Rafique, who fell on the ground; complainant party tried to overpower the accused but he while threatening them not to come near, fled away from the spot while brandishing his weapon. It has been also alleged in the application (Ex.PA) that Ahmad Khan (accused/appellant) had committed murder of Muhammad Rafique (deceased) due to grudge of return of Mst. Allah Rakhi.1
3. After completion of usual investigation, challan report under Section 173 Cr.P.C. was submitted in the Court and the appellant was formally charge sheeted under Section 302, PPC, to which he pleaded not guilty and claimed trial, where after, prosecution evidence was summoned. In order to prove its case, prosecution examined as many as twelve PWs to bring home the guilt of accused/appellant. Mst. Ghulam Fatima complainant (PW-8) and Muhammad Imran (PW-9) provided ocular account, Dr. Muhammad Amin (PW-3) provided medical evidence whereas Muhammad Ashraf S.I. (PW-12) provided detail of investigation of this case.
4. Appellant was examined under Section 342, Cr.P.C. wherein he denied the allegations and professed his innocence; appellant neither made statement under Section 340 (2) Cr.P.C, nor produced any evidence in his defence. After conclusion of trial, learned trial Court convicted and sentenced the appellant as mentioned above, through the impugned judgment.
5. After hearing learned counsel for the appellant, learned counsel for the complainan t, learned Deputy Prosecutor- General and going through the record with their able assistance, it has been noticed that in application for registration of case (Ex.P A), no time of occurrence has been mentioned; simila rly, in her examination-in-chief, complainant lady (PW-8) has not mentio ned any time of occurrence; in brief history given in the inquest report (Ex.PE), time of occurrence has been mentioned as 10:00 a.m., whereas time regarding information of death has been mentioned in Column No. 3 of 1 page of inquest report as 12:30 p.m., similarly , at 1 page of postmortem report, 12:30 (noon) has been mentioned as time of death; during cross-examination, Investigating Officer/PW -12 has stated that at 10:00 a.m., he was informed about occurrence by the Moharir and he reached at the place of occurrence at 10:45 a.m.; this state of affairs, clearly establishes that neither prosecution is sure about exact time of occurrence nor could establish the same.
According to prosecution, place of occurre nce (which is house of Muhammad Boota) remained in exclusive control and surveillance of complainant and other cited eyewitnesses after the occurrence till arrival of police, because as per claim of prosecution, accused fled away immediately from there, but no blood of deceased was secured from there; even availability of blood or any pellet/firing mark has not been found over there; as per own claim of prosecution, dead body of the deceased remained there at place of occurrence for sufficient period, time between injury and death was immediate, death was due to hemorrhage i.e. blood loss and shock, therefore, non-availability of blood at stated place of occurrence has raised eyebrows and left question mark; Muhammad Boota (owner and resident of said house) is neither witness nor accused, same is the position with respect to his remaining house mates; so much so, neither Muhammad Boota nor his any house mate has been joined into the investigation of the case. Therefore, place of occurrence has also not been established.
As per deposition of Mst. Ghulam Fatima complainant/PW-8, Jang Sher told the complainant about missing of Allah Rakhi, upon which, complainant, her son namely Muhammad Imran (PW-9), Muhammad Rafique (deceased) and Ahmad Ali (brother of Muhammad Rafique deceased) came out from their house for search of Allah Rakhi; they straightaway came into house of occurrence (within 5/6 minutes), relevant portion of statement of Mst. Ghulam Fatima (PW-8) is being reproduced:- "We did not go into the house of any other person after leaving out house and straight away had gone to the house of Muhammad Boota. In five/six minutes from our house we reached in the house of Muhammad Boota." and when Muhammad Rafique entered into the room, Ahmad Khan (appellant) fired at the deceased; meaning thereby , occurrence might had taken place between 08:00 a.m. to 09:00 a.m. and PW-8 has further deposed that police reached at the spot after 1 or 1/2 hours; Investigating Officer (PW-12) in his statement deposed that he received information regarding occurrence at 10:00 a.m. and reached at the place of occurrence at 10:45 a.m., however , question does arise that then why application for registration of case was prepared and moved to police with delay at 12:45 p.m. (as per time mentioned in F.I.R.); furthermore, why dead body was received in hospital with unexplained delay i.e. at 05:00 p.m. and why police papers were not sent with the dead body and same were received by doctor with unexplained delay in the hospital; in this regard statement of Dr. Muhammad Amin (PW-3) is relevant, which is being reproduced for ready reference:- "I started post mortem after two hours due to non availability of the police papers."st 1 Law is now well settled on the point that if post mortem is delayed like in the case in hand, then it is sufficient to establish that none of cited eyewitnesses including complainant was present at the time and place of occurrence and this time has been consumed for consultation, deliberation, procuring, inducing the witnesses and tailoring/ concocting false story for registration of the case. Therefore, it has been established that neither occurrence was promptly reported to the police nor case was registered promptly, hence, no sanctity can be attached to "first information report" and this important limb of prosecution, which has to lay foundation of the case, has rather smashed the same. In this regard, following lines of statement of complainant are also important, wherein she has stated that her thumb impression was obtained on blank paper; same are being reproduced:- "Police arrived at the place of occurrence after about one or one and a half hour. Some one informed the police about he occurrence. I put my thumb mark on a white paper ."(emphasis added)
In the above discussed circumstances/facts, presence of complainant and cited eyewitness at the relevant time, at the alleged place of occurrence has also become doubtful.
Admittedly , complainant and cited eyewitness are residents of Chak No. 109/6-R, whereas, occurrence allegedly took place in the house of Muhammad Boota situated in Chak No. 427/6-R; they are not resident of the vicinity where occurrence took place, therefore, they are chance witnesses. It is not out of place to mention here that being chance witness, they were bound to prove valid reason of unimpeachable characte r for establishing their presence at the alleged place of occurrence; in this regard, it is important to mention here that as per complainant, Jang Sher came to her house and told that his daughter is missing, upon which, she alongwith Muhammad Imran cited eyewitness (PW-9), Ahmad Ali and Muhammad Rafique (deceased) came out of the house for search of Allah Rakhi, but why Jang Sher did not accomp any them for search of his daughter; then how they obtained knowledge that Allah Rakhi is in the house of Muhammad Boota and then how they came to know that Ahmad Khan is hiding in the kitchen of said house under the cot; it is important to mention here that house of Muhammad Boota is adjacent to the house of Jang Sher; Allah Rakhi was even not found in the house of occurrence. Therefore, this reason/version does not appeal to the man of common prudence, same is neither plausible nor probable and by no stretch of imagination, can be termed as of "unimpeachable character", which is sine qua non i.e. mandatory for believing chance witness. Therefore, on this score alone, evidence of complainant and cited eyewitness cannot be believed without pinch of salt. Reference is placed upon the case of "Mst. Shazia Parveen versus The State"
(2014 SCMR 1197), "Muhammad Rafique versus The State" (2014 SCMR 1698 ) and "Mst. Sughra Begum and another versus Qaiser Pervez and others" (2015 SCMR 1 142), the relevant portion from Mst. Sughra Begum' s case (supra) is reproduced as under:- "14. A chance witness, in legal parlance is the one who claims that he was present on the crime spot at the fateful time, albeit, his presence there was a sheer chance as in the ordinary course of business, place of residence and normal course of events, he was not supposed to be present on the spot but at a place where he resides, carries on business or runs day to day life affairs. It is in this context that the testimony of chance witness, ordinarily, is not accepted unless justifiable reasons are shown to establish his presence at the crime scene at the relevant time. In normal course, the presumption under the law would operate about his absence from the crime spot. True that in rare cases, the testimony of chance witness may be relied upon, provided some convincing explanations appealing to prudent mind for his presence on the crime spot or put forth, when the occurrence took place otherwise, his testimony would fall within the category of suspect evidence and cannot be accepted without a pinch of salt"
Mst. Ghulam Fatima complainant (PW-8) has also introduced following dishonest improvements in her statement before the Court: - "In my complaint Exh PA it was mentioned by me that we had been sitting in our house where Jang Sher came.
Confronted with Exh PA were it is not so recorded. It was mentioned by me in my application Exh PA that when Mst.
Allah Rakhi was returned before 12/13 days of the occurrence and his father executed a pronote with the assurance that in future his son shall not be involved in such like matter and that Muhammad Din and Imam Din were witnesses of that pronote. Confronted with Exh PA where it is not mentioned. It was mentioned by me in my application that Muhammad Boota was a close relative of the accused. Confronted with Exh PA where it is not recorded. It is incorrect to suggest that today I made dishonest improvements only to strengthen the motive."
It is trite of law that witness, who introduces dishonest improvements in his statement before the Court, cannot be accepted as truthful witness. Therefore, in view of aforementioned state of affairs, complainant and other cited eyewitnesses are neither believable nor reliable, hence, ocular account is not trustworthy and hereby discarded.
As far as medical evidence is concerned, it is trite of law that it is mere supportive piece of evidence as it cannot tell qua author of the injury; in this regard, guidance has been sought from the case of "Sajjan Solangi versus The State " (2019 SCMR 872). It is important to mention here that in this case, it is claim of prosecution that the moment, deceased entered the door of the kitchen/room, appellant (who was hiding under the cot) fired at him, therefore, direction of injury should be from downward to upward; but in this case position is otherwise i.e. vice- versa and relevant statement of Dr . Muhammad Amin (PW -3) is hereby being reproduced: "If the fire shot is made from depth/groun d side the direction of the bullet will be from down to up-ward. The fire shot in the instant case made from the left side and the pellets took the root toward the right side. The track of the injuries was from up to downward."
Perusal of statement of doctor shows that in this case, injury was from upward to downward; therefore, medical has not supported the ocular account, rather negated the same. Furthermore, medical evidence and post mortem report has also not been put to the appellant under Section 342 Cr.P.C., therefore, cannot be used against him.
Reference can be made to the case of "Muhammad Saddique versus The State " (2018 SCMR 71) and "Imtiaz alias T aj versus The State and others " (2018 SCMR 344 ).
As far as alleged recovery of pistol/carbine .12 bore at the pointing out of appellant is concerned, same has already been held by the trial court as of no help to the prosecution; no empty shell was found at place of occurrence; allegedly recovered weapon and empty found in the same at the time of recovery , were sent together to Punjab Forensic Science Agency , Lahore; furthermore, it was allegedly recovered from open and public place, which was accessible to any one; recovery witness is also cited eyewitness, therefore, he cannot corroborate his own evidence.
Pellets recovered from dead body of the deceased were not sent for comparison with allegedly recovered weapon.
Hence, recovery of weapon is of no help to the prosecution.
As far as motive is concerned, same is feeble, improbable, not appealing to common prudence and even otherwise, not proved and discarded by learned trial court also.
6. Nutshell of the above discussion is that in this case, prosecution has been failed to prove charge against present appellant beyond shadow of doubt.
7. Resultantly , instant Criminal Appeal No. 224 of 2013 filed by Ahmad Khan (appellant) is hereby allowed, conviction recorded and sentence awarded to the appellant vide impugned judgment dated 17.04.2013 passed by learned Sessions Judge, Bahawalnagar is hereby set-aside. The appellant is acquitted of the charge, he shall be immediately released if not required in any other case.
Criminal Revision No. 100 of 2013 Consequent upon the reasons mentioned above, Crl. Revision No. 100 of 2013, filed by Mst. Ghulam Fatima (complainant) seeking enhancement of sentence of Ahmad Khan (respondent No.2), stands dismissed .