ASJAD JAVAID GHURAL, J.-- Through Criminal Appeal No.1194 of 2013 under section 410, Cr.P.C. appellants Muhammad Afzal alias Baba and Muhammad Azam have challenged the vires of judgment dated 19.03.2013 passed by the learned Sessions Judge, Narowal in case FIR No.192/2012 dated 17.05.2012, in respect of offences under sections 302, 148 and 149, P.P.C., registered at Police Station, Saddar Narowal whereby they were convicted and sentenced as under:-- Under section 302(b) read with 34, P .P.C.
Imprisonment for life and to pay the compensation of Rs.5,00,000/- to each of the legal heirs of the deceased, in case of default thereof, to further undergo simple imprisonment for six months each.
They were held entitled to the benefit of section 382-B, Cr .P.C.
2. Complainant Muhammad Ashraf has preferred Criminal Revision No.373 of 2013 seeking enhancement of sentence of respondents Nos.1 and 2/appellants, which shall be decided through this common judgment.
3. The prosecution story unfolded in the crime report (Ex. PJ/1) is that on 17.05.2012 at 06:30 p.m., the complainant along with Muhammad Azam on one motorcycle, whereas his son Zaki Ullah, on another motorcycle bearing registration No. NLK/2177, little ahead of them, were proceeding from village Sadiqabad to village Maloke and when they reached near Rattian More, accused Muhammad Afzal, Muhammad Azam, Noor Hussain along with two unknown accused while armed with Pump-Action, who were ambushed there, emerged on the road. Accused Muhammad Afzal, Muhammad Azam (appellants) and Noor Hussain started straight firing at Zaki Ullah, which landed at his chest, neck and right hand. The complainant and Muhammad Azam PW saved their lives while lying on the ground. The accused persons left the place of occurrence while brandishing the weapons and intimidating to kill them. They attended Zaki Ullah, who was lying injured smeared with blood. They shifted him to the hospital on motor-cycle and also informed Rescue-1 122, which met them at Zafarwal Road and shifted the injured to the hospital, where he succumbed to the injuries.
Motive behind the occurrence was that earlier the accused persons had launched murderous assault upon driver of the complainant namely . Muhammad Aslam for which they got lodged case FIR No.95/12, in respect of offence under sections 324 and 34, P.P.C. at Police Station Saddar , Narowal against the accused persons, wherein the present deceased was cited as a witness.
4. Abdul Majeed, SI (PW-12) had visited the place of occurrence on the same day, collected blood-stained earth from the place of occurrence (Ex.PC), secured seven crime empties (Ex.PH), prepared injury statements (Exh.PM) and inquest report (Exh.PN). He arrested the appellants on 06.06.2021 and during investigation the appellants led to the recovery of respective pump actions 12-bore, which we e taken into possession vide recovery memo (Exs.
PG and PH). He recorded the statements of witnesses under section. 161, Cr.P.C. and after completion of investigation, got prepared report under section 173, Cr .P.C.
5. Dr. Qaisar Waseem, (PW-6) held autopsy on the dead body of deceased Zaki Ullah on 18.05.2012 at 30:15 a.m. and observed seven injuries on his chest, neck and arm. The cause of death was hemorrhage and shock due to excessive bleeding. All the injuries were ante-mortem and sufficient to cause death in ordinary course of nature.
The probable duration between injuries and death was within 02-hours whereas between death and post mortem examination, within eight hours.
6. At the commencement of trial, the prosecution produced twelve witnesses besides the report of Punjab Forensic Science Agency (Ex.PO) and that of Serologist (Ex.PQ). 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 opted not to make their statements under section 340(2), Cr .P.C., however , produced copy of FIR Ex. DB in their defence evidence.
7. Learned trial Court, upon conclusion of the trial, had convicted and sentenced the appellants in the above terms vide impugned judgment dated 19.03.2013. Hence, this criminal appeal.
8. Learned counsel for the appellants submit that the appellants are quite innocent and have nothing to do with the alleged occurrence; that both the acclaim ed eye-witnesses, 'being chance witnesses, have failed to establish their presence at the venue of occurrence at the relevant time; that Muhammad Azam (PW-11) was not non-resident of the locality and his testimony being 'chance and related witness, cannot be believed; that the witnesses claim that they had shifted the deceased in the hospital in injured condition was negated by the Investigating Officer (PW-12) while deposing that when he reached in the hospital, the witnesses were not present there, that according to the eye-witnesses they took the deceased to the hospital in injured condition on the motor-cycle but their blood stained clothes were not produced to the Investigating Officer; that according to Abid Ali (PW-5), all crime empties were lying very close to each other , which means that the same were fired by one person and with the same weapon; that both the witnesses changed their stance qua the role played by co accused Noor Hussain (since P.O.); that the ocular account as to the distance between the deceased and the assailants is not in consonance with the medical evidence wherein the medical expert observed tattooing upon injury No.1, which happens only if the fire shot is made from a close range; that the prosec ution has failed to prove the motive part of the occurrence; that positive result of Punjab Forensic Agency , Lahore qua matching of crime empties with the weapons recovered at the instance of the appellants was inconsequential, that the prosecution has failed to prove the charge of honkicidal death of the deceased hands of the appellants beyond shadow of reasonable doubt, therefore, the appellants deserve acquittal.
9. Conversely , learned Law Officer appearing for the State assisted by learned counsel for the complainant has contended with vehemence that it was a day-light occurrence, which was reported to the police within the shortest span of time; that presence of the eye-w itnesses at the spot at the relevant time was quite natural: that it is quite usual in our rural set-up that to move at working place, visit the shops, bus stops and moving, in the area of vicinity without any specific purpose; that ocular account is in consonance with the medical evidence: that the positive report of Punjab Forensic Science Agency , Lahore qua matching of the crime empties with the weapons recovered from the appellants provides further corroboration to the ocular account; that the trial Court has properly appreciated the evidence available on record and there exists no earthly reason to draw any exception therefrom.
10. 1 have heard learned counsel for the appellants, learned Law Officer appearing for the State assisted by learned counsel for the complainant and gone through the record.
11. The mainstay of the prosecution was on the testimony of Muhammad Ashraf (PW-10)/complainant, father and Muhammad Azam (PW-11), cousin of the deceased. The complainant appeared in the dock in the court room and deposed somewhat different to that of earlier statement in the crime report while stating that on the fateful day, at about 06:30 p.m. he along with Muhammad Azam was proceeding to village Maloke from Sadiqabad riding on one motorcycle whereas, Zaki Ullah (deceased) was riding on his own motor-cycle and a little ahead of them. When they reached near Rattian More, appellants along with one Noor Hussain (since P.O.) and two unknown persons intercepted them. The appellants started firing with their respective weapons at deceased Zaki Ullah, who received fire arm injuries and fell down. All the accused persons fled away from the crime scene after making aerial firing.
They attended the deceased who was smeared with blood, called Rescue-1 122, took him to the hospital where the deceased succumbed to the injuries at the outer gate. Muhammad Azam (PW-11) while deposing attempted to make it in line with the statement of the complainant.
12. Admittedly, the alleged place of occurrence i.e. Rattian More was not the place the residence of the acclaimed eye-witnesses; which was a thoroughfare and, in that eventuality, it was incumbent upon the eye- witnesses to furnish any solid reason in order to establish their presence at the spot at the relevant time. The complainant did not furnish any reason of his presence at the place of occurrence either in complaint (Ex.PJ) or in his deposition before the learned trial Court and simply stated that they were going to the village Maloke from Sadiqabad. Likewise, it is an admitted fact that Muhammad Azam (PW-11) was resident of another village at the distance of 15/16 kilometer from the place of occurrence. He also failed to explain that for what purpose was he accompanying the complainant and the deceased.
13. Furthermore, the complainant as well as the acclaimed eye-witness while lodging the crime report and making statement under section 161, Cr.P.C. were unison on the point that the appellants along with their co-accused Noor Hussain (since P.O.) started firing with their respective tire arm weapons upon the deceased but quite amazingly they, while appearing before the learned B trial Court, deviated from their earlier stance and let oft Noor Hussain (since P.O.) from the effective role of making firing at the deceased. This deviation on part of the acclaimed eye- witnesses gets no approval by this Court being trivial and inconsequential, which leads me to draw an irresistible conclusion that they did not see the occurrence with their own eyes.
14. Moreover , as per scaled site plan (Ex.PB), all the assailants had been shown standing at the same distance i.e. 08-feet from the deceased but according to the post mortem examination report of the deceased, there was tattooing around injury No.1 and no blackening, burning or tattooing on any other injury . Dr. Qasir Waseem (PW-6), explained during cross-examination that tattooing Dr. Qasir Waseem (PW-6), explained occurs only when the fire shot is made from the range of less than three feet. If all the assailants were standing at the same distance as is evident from the scaled site plan making fire shots at the deceased, then how is it possible that only one of the injuries was containing tattooing. This fact also negates the presence of the witnesses at, the spot, otherwise, they would have depicted a true picture of the occurrence to the draftsman.
15. Likewise, Abid Ali, 1037/C (PW-5) deposed in cross-examination that B "The said empties were collected from the field at a distance of 15, 20 feet from the mettalled road.... However , the empties were lying very close to each other . I cannot tell where the dead body was lying so I cannot as to which side of dead body empties were lying."
This part of statement of an independent witness, being the police official, is indicative of the fact that the fire shots had been made from a distance of more than, as mentioned in the site plan. Similarly , lying of crime empties close to each other leads to the conclusions that all the fire shots were made by one person. Furthermore, the evidence of this witness gives an impression that when he and other police officials reached at the spot, the dead body was lying there which is contrary to the prosecution version, according to which the deceased had already been shifted to the hospital in injured condition.
16. Another glaring aspect of the case is that the acclaimed eye-witnesses shifted the deceased, while in injured condition, to the hospital on motorcycle but the Investigating Officer (PW-12) deposed contrary to them stating that "I recorded the statement of the eye-witness of the occurrence at the place of occurrence. The said eye-witness was not present at Hospital when I reached there. According to my police file the complainant was alone when he met me in hospital and submitted application.............................. The alleged eye-witness never met me in the hospital nor I recorded his statement in the hospital." This part of the statement of the Investigating Officer is sufficient enough to believe that at least one of the acclaimed eye-witnesses namely , Muhammad Azam was not present at the spot and he was taken on board much later with due deliberations and consultations.
17. Last but not least, the motive behind the occurrence as ascribed by the prosecution was that one Muhammad Aslam, driver of the complainant, got lodged case FIR No.95/12, offence under section 324/34, P.P.C., Police Station Sadar , Narowal against the accus ed persons, in which the deceased was cited as a witness. If for the sake of arguments, motive set up by the prosecution is taken as a gospel truth, in that eventuality , if it is presumed that the appellants were so hardened and desperate criminals that they did not allow the deceased, who was witness of a criminal case carrying lessor punishment, then it is beyond imagination that why they let the eye-witnesses alive, who being unarmed persons were at their mercy , to make statement against them in a case entailing capital punishment. Moreover , admittedly , the complainant of the case, earlier got lodged a case FIR No.181/09 dated 15.05.2009, under section 381-A, P.P.C., Police Station Sadar , Narowal (Ex. DB) under section 381-A, P.P.C. against the appellants, therefore, motive if believed then the complainant was more inimical to the accused persons than the deceased and naturally , if he was present there, he should have also been done to death.
18. The facts recounted above, project a clear picture that both the aforesaid claim ed eye-witnesses have failed to establish their presence at the venue of occurrence at the relevant time. They being, the chance witnesses, remained fail to give any particular reason or logic to present at the place of occurrence at the relevant time.
Legally , speaking, chance witness/witnesses is/are the one, who is/are not supposed to be present at a specific place unless he/they advance convincing and confidence inspiring reason justifying his/their presence. Once the claimed eye-witness has failed to prove the purpose or a definite work of his/their presence at the venue of occurrence at the relevant time, the established principle of law is that his/their testimony cannot be relied upon to maintain the conviction and sentence under the capital charge. Reliance is placed on case titled "Mst. Rukhsana Begum and others v . Sajjad and others" ( 2017 SCMR 596 ) wherein it has been held as under:-- "A single doubt reasonably showing that a witness/witnesses' presence on the crime spot was doubtful when a tragedy takes place would be sufficient to discard his/their testimony as a whole. This principle may be pressed into serve in cases where such witness/witnesses are seriously inimical or appears to be a chance witness because judicial mind would remain disturbed abou t the truthfulness of the testimony of such witnesses provided in a murder case, is a fundamental principle of our criminal justice system."
19. Dr. Qaisar Waseem (PW-6) held autopsy on the dead body of deceased Zaki Ullah on 18.05.2012 and observed seven fire-arm injuries on different parts of his body . The cause of death was hemorrhage and shock due to excessive bleeding. The probable time between injuries and death was within 02-hours whereas between death and post mortem examination within eight hours. According to the prosecution version, the occurrence took place at 06:30 p.m., the deceased succumbed to the injuries at be 07:15 p.m. at the outer gate of DHQ, Hospital, Narowal but there is no explanation that why the post mortem examination was conducted with a delay of eight hours. The unexplained delay in conductin g the post mortem examination on the dead body of the deceased points out a real possibility that the time had been consumed in order to procure and plant the eye-witnesses for cooking up a false story . A reference in this regard may be made to cases titled "Muhammad Ilyas v. Muhammad Abid alias Billa and others" (2014 SCMR 1698 ), "Faqeer Muhammad v. Shahbaz Ali and others" (2016 SC MR 1441) and "Muhammad Ilyas v. Muham mad Abid alias Billa and others" (2017 SCMR 54) wherein it has been held as under:- "Post-mortem Examination of the deadbody of Muhammad Shahbaz deceased had been conducted after nine hours of the incident which again was a factor pointing towards a possibility that time had been consumed by the local police and the complainant party in procuring and planting eye-witnesses and cooking up a story for the prosecution."
20. The motive behind the occurrence as ascribed by the prosecution was that earlier driver of the complainant got lodged case FIR No.95/12, offence under section 324/34, P.P.C., Police Statio n Sadar , Narowal against the accused persons, in which deceased was cited as witness but diminishing only one of the eye-witnesses in the said case, would serve no purpose for the appellant, when the complainant and the other eye-witness still stand against them. In these circumstances, I am persuaded to hold the prosecution has failed to establish motive part of the occurrence.
21. During investigation, the appellants led to the recovery of respective fire arm weapons, which were sent to the office of Ballistic expert for comparison with the crime empties already secured from the spot. The report from the said office (Ex.PO) has been received with positive result. Learned counsel for the appellants have vociferously argued that in fact the appellants had been arrested much prior to the date as shown by the prosecution and the empties were managed after making fire shots from the weapons recovered from the appellants and then transmitted the same to the office of Punjab Forensic Science Agency in order to get positive result but in this regard, they have failed to bring on record any iota of evidence. However , it is well settled law that when the ocular account is disbelieved, rest of the evidence, being corroboratory in nature, cannot be made basis to maintain conviction and sentence of the accused. I seek guidance from case titled "Mst. Sughra. Begum and another v.
Qaiser Pervez and others" ( 2015 SCMR 1 142) wherein it has been held as under:- "It is cardinal principle of justice that ocular account in such cases plays a decisive and vital role and once its intrinsic worth is accepted and believed then the rest of the evidence, both circumstantial and corroboratory in nature, would be required as a matter of caution. To the contrary , one the ocular account is disbelieved then no other evidence, even of a higher degree and value, would be sufficient for recording conviction on a capital charge therefore, we have to see the probative value of the ocular account in light of the facts and circumstances of the case."
22. Having scanned the entire prosecution evidence, a conclusion is inescapable that the prosecution has failed to prove its case against the appellants beyond shadow of reasonable doubt. Both the acclaimed. eye-witnesses, being the chance witnesses, could not establish their presence at the venue of occurrence at the relevant time.
Exonerating co-accused Noor Hussain (since P.O.) from fatal role requires serio us consideration as apparently there was no reason for three assailants to jointly take on the deceased when every single of them was in a position to accomplish the premeditated purpose, as such possibility of wider net cannot be thrown to wind. The motive behind the occurrence could not be established, which remained shroude d in mystery . The post mortem examination on the dead body of both the deceased was conducted with unexplained delay of about eight hours, which shows that the police papers necessary for post mortem examination, were not ready and the time had been consumed to procure and plant the eye-witnesses. In the attending circumstances, mere positive report of the Punjab Forensic Science Agency , being corroboratory piece of evidence, is not sufficient to maintain conviction and sentence of the appellant. What to speak of a reasonable 'doubt, the case in hand is replete with doubts and its benefit would always favour the accused as a matter of right and not grace. Reliance is placed on ease titled "Muhammad Akram v . The State" ( 2009 SCMR 230 ) wherein at page No.236, it has been held as under:- "It is an axiomatic principle of law that in case of doubt, the benefit of 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 Pervaiz 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.
23. For what has been discussed above, this appeal is allowed, the conviction and sentence of appellants Muhammad Afzal alias Baba and Muha mmad Azam are set aside and they are acquitted of the charge by extending the benefit of doubt to them. They are directed to be released forthwith from jail, if not required to be detained in connection with any other criminal case.
Criminal Revision No.373 of 2013 24.For the reasons mentioned hereinabove, the revision petition in hand is without any merit, the same stands dismissed-in-limine .