Ch. Abdul Aziz, J.--Muhammad Ajmal (appellant) involved in case FIR No. 126/2015 dated 13.03.2015 registered under Sections 302 & 34, PPC at Police Station City, Sahiwal was tried by learned Sessions Judge, Sahiwal. The learned trial Court vide judgment dated 20,10.2016 proceeded to convict and sentence the appellant in the following terms: "Under Section 302 (b), PPC to suffer death sentence. He was also directed to pay Rs. 500,000/- as compensation to the legal heirs of the deceased under Section 544-A, Cr .P.0 and in default whereof to undergo six months SI"
Challenging his conviction and sentence, Muhammad Ajmal. (appellant) filed Criminal Appeal No. 803 of 2016 , whereas, trial Court sent reference unde r Section 374, Cr.P.C. which was numbered as Murder Reference No. 147 of 2016 for the confirmation or otherwise of death sentence awarded to Muhammad Ajmal (convict). Both these matters are being disposed of through this single judgment.
2. Briefly stated that the lease of prosecution as unfolded by complainant Muhammad Nawaz (PW.1) in FIR (Exh.P A/1) is to the effect that on 13.03.2015 after offering Isha prayer he along with his brother Zafar Ali, Mohammad Tahir Hussain and Shahbaz Ahmed came in the house of Zafar Ali where they, while sitting in the Courtyard, were talking about the marriage ceremony of daughter of Zafar Ali which was scheduled to be held after some days; that at about 9:45 p.m. the door was knocked and Zafar Ali opened the same but hurriedly stepped back; that Muhammad Ajmal (appellant) armed with .30 bore pistol along with two unknown persons entered the house; that Muhammad Ajmal (appellant) fired from his pistil which hit Zafar Ali at the right side of forehead who as result whereof fell on the ground; that he and other PWs raised hue and cry and tried to apprehend the accused but they managed their escape from the crime scene by boarding the motorcycle; that Zafar Ali (succumbed to the injuries at the spot. The motive behind the occurrence statedly was that Muhammad Ajmal demanded hand of daughter of Zafar Ali, namely , Kiran Bibi aged about 24/25 years but the said propo sal was repudiated due to which Muhammad Ajmal (appellant) had fostered rancor against the deceased.
3. The law was set into motion on the statement (Exh.P A) of Muhammad Nawa z complainant (PW.1) which he made before Ahmad Masood SI (PW.9) upon his arrival at the crime scene. He sent Fard Bian (Exh.P A) to the police station through Saeed Ahmad 779/C for the registration of formal FIR. He prepared the injury statement (Exh.PH), inquest report (Exh.PJ) and entrusted the dead body to Muhammad Afzal 1077/C .for escorting the same to the mortuary for post-mortem examination. Prom the spot, Ahmad Masood SI (PW.9) also collected blood stained earth and one crime empty (P.1) vide memos Exh.PB & Exh.PC respectively . He arrested Muhammad Ajmal (appellant) on 29.03.2015 who on 05.04.2015 made a disclosure and in pursuance thereof led to the recovery of .30 bore pistol (P .6) which was taken into possession vide memo Exh.PE.
4. Prosecution in order to prove its case against the appellant produced nine PWs including Muhammad Nawaz (PW.1) and Muhammad Tahir Hussain (PW.2), who narrated about the eye-witness account of the occurrence, Dr. Iiaz Hussain (PW.8) who furnished medical evidence and Ahmad Masood SI (PW.9)) who investigated the case.
The remaining witnesses, more or less, were formal in nature.
5. Dr . Ijaz Hussain (PW .8) on 14.03.2015 conducted autopsy of Zafar Ali and noted the following injuries: (1). A lacerated fire-arm wound 4 cm x 3 cm into going deep with inverted burnt margins on the left side of forehead.
(2). A lacerated fire-arm wound 11/2 cm x 2 cm into going deep with everted margins on the back of skull in its lower part The doctor gave the following opinion: The probable duration between injury and death was immediate and between death and post-mortem was nine to ten hours approximately . In my opinion the cause of death in this case was Injury No. 1 which caused severe shock and hemorrhage resulting cardiac pulmonary arrest. The injury was caused with fire-arm weapon which was sufficient to cause death in ordinary course of nature"
6. After the conclusion of prosecution evidence, the learned trial Court examined the appellant under Section 342, Cr.P.C. who in response to question "why this case has been made against you" made the following reply: "It is a false case. The complainant party has set up a false and cooked up story to blackmail me. Three persons namely Dilbar son of Sarfraz, Muhammad Sabir and taxi driver Haider were apprehended by the police immediately after the registration of the case, who were kept in illegal confinement for about two weeks and then let off after getting bribe and I was arrested thereafter in order to blackmail me and to get illegal gratification."
Similarly , while responding question "why the witnesses of prosecution have deposed against you", the appellant took the following stance: "The PWs have deposed against me in order to blackmail me, I was not present on the spot at the time of occurrence. The complainant has clearly admitted in Court that I was not known to him previously and had seen him for the first time on the night of occurrence which was a dark night. It is clearly manifest from the statement of PW-1, PW-2 that the complainant and PWs were neither present nor had seen the occurrence and my name and other particulars were subsequently obtained and incorporated in the FIR as explained above in Question No. 4."
The appellant did not make statement under Section 340(2) of, Cr.P.C., however , produced Sahib Khan 937/HC (DW.1) in his defence. On the conclusion of trial, the appellant was convicted and senten ced as mentioned above, hence, the instant appeal and murder reference.
7. It is contended by learned counsel for the appellant that though apparently the case is emerging from a promptly lodged FIR, however , the perusal of the record reveals otherwise; that though the occurrence took place at the odd hours of night, however , prosecution witnesses failed to prove the source of light so as to exclude the possibility of mistaken identification; that the two witnesses of the occurrence admittedly were not residents of the house where this occurrence took place; that one of the eye-witnesses, namely , Muhammad Nawaz admitted during Cross- examination that the appellant was not previously known to him; that in such circumstances, subsequent to his arrest, Muhammad Ajmal (appellant) should have been subjected to an identification parade/test which was never conducted; that both the eye-witnesses made multiple dishonest improvements and omissions in their statements before the Court which rendered them unworthy of any credence; that widow an daughter of the deceased were residents of the same house thus were natural witnesses but were neither associated during investigation no produced before the trial Court; that from withholding of evidence both these witnesses safely an inference can be drawn that had the appeared during trial they would not have supported the case c prosecution; that the medical evidence runs contrary to the ocular account; that though the prosecution came forward with the specific motive, however , miserably failed to prove it by leading some evidence that the recovery of pistol .30 bore froth the appellant and it matching with the crime empty secured from the spot is dubious ii nature as the crime empty was forwarded to the office of PFSA one day after the arrest of the appellant and the though reasonable doubt emerges from the prosecution case, however , its benefit was no extended to the appellant. With these submissions, it was urged that the conviction awarded to the appellant is liable to be set-aside.
8. On the other hand, learned DDPP assisted by learned counsel for the complainant vociferously argued that the case is arising out of a promptly lodged crime report wherein the appellant is not only specifically nominated but is assigned the role of inflicting fatal injury to the deceased; that the occurrence took place in the house of the deceased who was the real brother of both the eye-witnesses and thus their presence at the spot is established; that both the eye-witnesses remained consistent, during trial and put forth confidence inspiring detail of occurrence; that admittedly none of the two witnesses had any previous enmity with the appellant so as to falsely implicate him in the case; that the ocular account is fully supported by the medical evidence furnished during trial through Dr. Ijaz Hussain; that during investigation the appellant got recovered a pistol which as per report of PFSA matched with the crime empty secured from the spot; that if any further corroboration is requir ed that can be sought from the motive which was duly proved by the prosecution; that the appellant committed a cold blooded murder of an innocent person on a petty dispute and that since the prosecution has proved its case, hence, the appellant deserves no leniency . With these submissions, it was prayer that the appellant's appeal be dismissed.
9. Arguments heard. Record perused.
10. It emerges from the review of record that the occurrence it this case took place on 13.03.2015 at about 9:45 p.m. in a vicinity known as Jahaz Ground, situated at one mile from Police Station City Sahiwal. According to record, the occurrence was reported to police through the statement (Exh.P A) of Muhammad Nawaz (PW.1) mad before Ahmad Masood SI (PW.9) upon his arrival to the crime scene at about 11:00 p.m. Though from the afore- mentioned facts, it emerges that the information of crime was imparted to police without afflux of any unnecessary delay , however , the perusal of record reveals otherwise. Firstly , it is noticed that according to Muhammad Nawaz (PW.1), the police arrived at the spot after the receipt of information from rescue "15" conveyed by some unknown person. During trial, the log-book of rescue "15" was placed on record though Sahib Khan 937/HC (DW.1) as Exh.DB from which it evinces that the information of the occurrence was conveyed to rescue "15" by the daughter of the deceased which was to the effect that someone had committed the murder of her father , It is further noticed that though the occurrence took place at 9:45 p.m., in Sahjwal City, however , the dead body of the deceased was brought to the hospital at about 4:00 a.m. and autopsy was conducted even 31/2 hours thereafter i.e. at about 7:30 a.m.. The delay in holding autopsy was described by Dr. Ijaz Hussain (PW.8) due to delayed submission of police papers. It will not be out of context to reproduce an excerpt from the cross-examin ation of Dr. Ijaz Hussain (PW.8) which is as under: "The dead body was received in the mortuary at 04:00 a.m, while I conducted the post-mortem examination at 07:30 a.m. on 14.03.2015. There was no delay on any part in conducting the post-m ortem examination, As soon as the police papers were received I performed the autopsy"
We have not been able to understand that despite the complainant having in his possession a mobile phone, as admitted by him, then what precluded him from contacting either the local police or rescue "15". The delay in dispatching the dead body to the hospital and holding of autopsy is not explained in any manner by the prosecution. The afore-mentioned unansw ered anomaly is adversely reflecting upon the presence of eye-witnesses at the spot. Likewise, the delay in autopsy of the deceased strongly reflects that this time period was consumed in knitting the story so as to grill r Muhammad Ajmal (appellant) in the false case. In somewhat similar circumstances, the Hon'ble Supreme Court of Pakistan in the case of Muhammad Ilyas v. Muhammad Abid alias Billa (2017 SCMR 54 ) while dealing with the delayed post-mortem observed as under: "Post-mortem examination of the dead body of Muhammad Shahbaz deceased had been conducted after nine hours of the incident which again was a factor pointing toward a possibility that the time had been consumed by the local police and complainant party in procuring and planting eye-witnesses and cooking up a story for the prosecution"
11. A wade through the record reveals that the detail of occurrence was brought on record through the statements of two eye-witnesses, namely , Muhammad Nawaz and Muhammad Tahir Hussain (PW.1 & PW.2). According to them the occurrence took place inside the house of Zafar Ali (deceased) which was situated in close proximity of Police Station City Sahiwal. As per their own admission, both the eye-witnesses were having their place of abode though in the same street but at the distance of five houses way. For establishing their presence at the spot, both the eye-witnesses came forward with the stance that at the relevant time they were discussing with Zafar Ali (deceased) about the marriage arrangements of his daughter which was scheduled on 11.04.2015. It is noticed that no material whatsoever was brought on record either during investigation or at trial so as to prove that indeed the marriage of Kiran Bibi, daughter of the deceased was to take place on 11.04.2015. Conversely , Muhammad Tahir Hussain (PW.2) admitted during cross-examination that till recording of his evidence the marriage of Kiran Bibi had not been solemnized. Thus the explanation put forth by the eye-witnesses for their acclaimed presence in the house of deceased appears to have no truth in it. As a necessary consequence, Muhammad Nawaz and Muhammad Tahir Hussain (PW .1 & PW .2) can safely be termed as chance witnesses.
12. It is also discernable from the record that both the eye-witnesses made multip le improvements and omissions while appearing before the Court which upon careful scrutiny were found to be material in nature. Though these improvements and omissions, the witnesses brought on record the source of light, omitted to mention regarding the presence of two unknown assailants along with the appellant and their decamping from the spot while taking cover of dark night etc. As observed above, the improvements and omissions made by the witnesses were material in nature, thus negatively reflect upon the credibility of witnesses and the facts introduced and omitted therefrom are liable to be discarded from consideration. While arriving at such conclusion, we are enlightened from the observation of Hon'ble Supreme Court of Pakistan expressed in the case reported as Ibrar Hussain and others (2007 SCMR 605 ) wherein it was held as under: "It is settled law that person making contra dictory statements cannot be held worthy and credence as law laid down by this Court in Muhammad Shafique Ahmad's case PLD 1986 SC 471. It is a settled law that witness making improvements and changing version as and when suited according to the situation then such type of improvements were found deliberate and dishonest, therefore, cause serious doubt on the veracity of such witness."
Similar view was taken by the Hon'ble Supreme Court of Pakistan in the case of Muhammad Naeem Inayat v. The State ( 2010 SCMR 1054 ).
It is also evident from the review of record that Muhammad Nawaz (PW.1) candidly conceded during cross- examination that he was having no previous acquaintance with Muhammad Ajmal (appellant) and saw him for the very first time at the eventful time. In this regard, a portion from his cross-examination is being referred hereunder:- "I did not know the accused previously . I had seen him for the first time on the night of occurrence "
In the absence of the previous interaction between the two, there was pressing need to place on record the source of light so as to exclude the possibility of any mistaken identification. In order to prove the source of light, Muhammad Nawaz (PW.1) claimed in his examination-in-chief to have seen the occurrence in an electric light However , such claim proved to be an outcome of dishonest improvement as is evident from the following lines extracted from his cross-examination: "I had mentioned in Exh.P A that at the time of occurrence electric lights were lit at the place of occurrence.
Confronted with Exh.P A where it is not so recorded"
It is also observed that Ahmad Masood (PW.9) took into possession the tube light (P.8) from the crime scene through memo Exh.PL. However , the close look of record reveals that it was so done after 11/2 month of the occurrence i.e. on 27.04.2015. In the above backdrop, we are constrained to hold that the prosecution failed to discharge its burden of proving the source of light at the crime scene.
13. It is also borne out from the record that Zafar Ali (deceased) was residing in the house, where the crime scene is situated, along with his wife and daug hter. Both of them were present in the house, at the eventful time but neither they were associated during investigation nor appeared in the dock during trial. The presence of said two ladies was neither denied by Muhammad Nawaz (PW.1) nor by the Investigating Officer, namely , Ahmad Masood SI (PW.9). From an in-depth analysis of record, we have not been able to come across any explanation whatsoever for withholding the evidence of afore-mentioned two ladies who for all practical purposes were the most natural and important witnesses of the crime. In such state of affairs, we are not left with any other option but to draw an inference in accordance with Article 129 Illustration (g) of Qanun-e-Shahadat Order, 1984 that had these ladies appeared in the witness box they would not have deposed in line with Muhammad Nawaz and Muhammad Tahir Hussain (PW.1 & PW.2). We have arrived at above mentioned view while placing reliance upon the case of Muhammad Rafique, etc. v. State & others (PLJ 2011 SC 191) wherein the Hon'ble Supreme Court of Pakistan held as under: "that if any party withholds the best piece of evidence then it can fairly be presumed that the party had some sinister motive behind it. The presumption under Article 129 (g) of Qanun-e-Shahadat Order can fairly be drawn that if PW would have been examined, his evidence would have been unfavourable to the prosecution. "
14. Lastly , there is another aspect noticed by us which suggests the absence of eye-witnesses from the spot. In the crime report (Exh.P A/1), it is mentioned that Muhammad Ajmal (appellant) arrived at the spot in the company of two unknown persons and all the three accused made good their escape after achieving the object of taking the life of Zafar All (appellant), however , Muhammad Nawaz (PW,1) omitted to mention the presence of two unknown persons while appearing before the trial Court. He responded to this lacuna during cross-examination by saying that he got satisfied from the oath given by the accused side that no unknown person participated in the occurrence. Strangely enough had Muhammad Nawaz (PW.1) been present at the time of incident, there was no occasion for him to take oath from the accused regarding the presence or otherwise of two unknown persons. This feature indicates that none of the two eye-witnesses had seen the actual occurrence.
15. We have also pondered upon the motive part of the prosecution case which is defined as grudge of Muhammad Ajmal (appellant) which he nourished from the refusal of Zafar Ali (deceased) to tie his daughter Kiran Bibi in a matrimonial knot with him. None of prosecution witnesses referred to any specific occasion from which it may insinuate, that Muhammad Ajmal (appellant) was desirous of getting married with daughter of the deceased.
Muhammad Tahir Hussain (PW.2) admitted during cross-examination that Muhammad Ajmal (appellant) never approached deceased in his presence for asking the hand of Kiran Bibi. In the given circumstances, without any hesitation, we hold that the prosecution has not been able to prove the motive part of its case.
16. As regards the positive report (Exh.PM) of Punjab Forensic Science Agency , though according to it, pistol (P.3) recovered from the appellant matched with the crime empty secured from the spot, However for valid reasons, it is destined to be discarded. In this respect, it is observed that the appellant was arrested on 29.03.2015 Ind the crime empty reached the office of PFSA two days thereaftere on 31.03.2015. For the foregoing reasons, it is not safe to place explicit reliance upon the report of PFSA and instead it appears to be just to discard such report as an abundant caution.
17. The resume of above discussion is to the effect that on account of delay in dispatching the dead body to hospital and in holding post-mortem examination, withholding of evidence of inmates of the house and by giving preference to the witnesses who were having their place of abode at different-place, failure to satisfactorily prove the source of light, dishonest improvements and omissions made by two eye-witnesses and failure to prove the motive, reasonable doubt arises from the prosecution case, the benefit of which cannot be withheld from the appellant. In these circumstances, we are of the view that the conviction and sente nce awarded to the appellant is uncalled for. Consequently , while giving benefit of doubt in favour of Muham mad Ajmal (appellant), Criminal Appeal No. 803 of 2016 is allowed; his conviction and sentence is set-aside and he stands acquitted of the charge.
Muhammad Ajmal (appellant) is in custod y; be released forthwith if not required to be detained in any other criminal case.
18.Resultantly , Murder Reference No. 147 of 2016 is answered in the NEGA TIVE and death sentence awarded to Muhammad Ajmal (convict) is NOT CONFIRMED.