FAROOQ HAIDER, J.--- Muhammad Bilai (appellant) was tried in case arising out of FIR No. 103/14 dated 30.03.2014, registered under Sections 302, 34, P.P.C. at Police Station Saddar Haroonabad, District Bahawalnagar . After conclusion of trial, learned Addl. Sessions Judge, Haroonabad/trial Court vide impugned judgment dated 09.04.2016, convicted and sentenced the appellant as under:-- "under section 302(b), P.P.C. as Taziir to 'Death' for Qati-i-Amd of Mst. Parveen Akhtar (deceased) with payment of compensation Rs.300,000/-(rupees three lacs only) to the legal heirs of the deceased under . Section 544-A, Cr.
P.C. and in default thereof to undergo Simple Imprisonment for six months"
Convict Muhammad Bilal has challenged his aforementioned conviction and sentence through Criminal Appeal No. 198-J of 2016, whereas learned Addl. Sessions Judge , Haroonabad has forwarded case of the convict Muhammad Bilal i.e. Murder Reference No. 29 of 2016 for confirmation of his death sentence; both these matters are being decided together because the same have arisen out of one and the same judgment.
2. Briefly stated facts of the case according to Fard Bayan (Ex.PD/1) got recorded by Muhammad Aslam complainant (PW-7) are that on 30.03.20 14, Muhammad Zeeshan (son of compla inant) and Mst. Parveen Akhtar (wife of complainant) on one motorbike, whereas the complainant along with his brother Muhammad Nadeem, on another 'motorbike, went to Chak No.45/3-R Azafi Basti; at about 05.30 p.m., Muhammad Bilal accused armed with rifle along with his three unknown co-accused of average height armed with firearms (who can be identified on re- seeing) emerged at chowk and started firing upon them; Muhammad Bilal (accused/ appellant) made fire shots, which hit on right shin and left thigh of Mst. Parveen Akhtar whereas other accused persons also made firing upon complainant and others but they saved their lives by laying down; thereafter , the accused persons fled away from the spot by making firing; complainant along with witnesses shifted Mst. Parveen Akhtar in injured condition to Civil Hospital, Haroonabad, where she succumbed to the injuries.
Motive behind the occurrence as per Fard Bayan (Ex.PD/1) was that on 26.02.2014, Muhammad Aslam (complainant) went to Multan to attend a marriage ceremony and in his absence, his motorbike (HONDA CD-70) was stolen, however , subsequently , Muhammad Bilal (accused/appellant) made phone call and demanded money for return of his motorbike, upon which, on 29.03.2014, Muhammad Zeeshan son and Parveen Akhtar wife of complainant went to Chak No.45/3-R for taking back his stolen motorbike but accused/appellant did not meet them whereupon they returned back to home.
3. After registration of case, arrest of Muhammad Bilal (appellant) and completion of usual investigation, challan/ report under section 173, Cr.P.C. was submitted . against the appellant only because during investigation, complainant had submitted his affidavit before Mahmood Ahmed S.I./Investigating Officer (PW-10) on 14.06.2014 while mentioning therein that he had come to know that except appellant, no other person had committed the occurrence; after completion of procedural formalities, the appellant was formally charge sheeted by the learned trial court under section 302, P.P.C. to which he pleaded not guilty and claimed trial. The prosecution got examined as many as thirteen witnesses to prove the charge against the accused and closed its evidence after tendering reports of experts.
4. Appellant was examined under section 342, Cr.P.C. wherein he denied the allegations and professed his innocence. While answering to question (Why this case is against you and why the PWs have deposed against you?), he replied as under:- "I am innocent. On the asking of political rivals, complainant has got registered this false case against me.
Complainant wants to fetch. money from me. Complainant had not got registered any Rappat or FIR regarding the theft of his motorcycle. Complainant remained failed to prove his motive part. P. Ws. are brother and son of complainant and on the asking of complainant they have deposed falsely against me."
The 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. Learned counsel for the appellant has submitted that impugned judgment is against the law and facts of the case, therefore, not sustainable in the eyes of the law rather liable to be set-aside . He has prayed for acquittal of the appellant.
6. Conversely , learned Deputy Prosecutor General and learned counsel for the complainant have supported the impugned judgment and requested for dismissal of the appeal.
7. Arguments heard. Record perused.
8. It has been noticed that it is claim of the prosecution that occurrence allegedly took place at 05.30 p.m. on 30.03.2014, Parveen Akhtar in injured condition was shifted to Civil Hospital, Haroonabad by complainant and cited eye-witnesses, where she succumbed to the injuries, investigating officer reached there and recorded statement of Muhammad Aslam-complainant (Exh.PD/1) at 08:15 p.m. in said hospital, and in the light of same, First Information Report (ExhPD) was chalked out at 08.25 p.m. in the police station, but close scrutiny of the record reveals that according to, report (Exh.P A), Parveen Akhtar died within 30-minutes after receipt of injuries due to excessive haemorrhage and blood loss; it is important to mention here that Muhammad Aslam (complainant/PW -7) has clearly stated during his statement befor e the Court that after about 1 or 1-1/2 hour of the occurrence, she was shifted from the place of occurrence, relevant portion of his statement is being reproduced: - "About one or 1-1/2 hours after the occurrence we shifted the injured Parveen Akhtar to THQ Hospital, Haroonabad on motor cycle".
Meaning thereby that Mst. Parveen Akhta r expired at the place of occurrence much prior to her stated shifting to hospital; no record of Civil Hospital, Haroonabad i.e. admission register , emerge ncy ward register , record about providing any medical aid, any prescription has been produced, even no official, paramedical staff or doctor of the hospital has been produced to prove that she was shifted in injured condition in the hospital or she expired there; column Nos.1 and 2 available at first page of inquest report (Ex.P A/2) are very much relevant in this regard, therefore, same are being reproduced:- {{URDU TEXT}} Column No.4 of FIR (Ex.PD) is also being reproduced:- {{URDU TEXT}} Perusal of aforementioned column Nos.1 and 2 of inquest report read with column No.4 of FIR also reveals that she died or her dead body was found in Chak No.45/3-R i.e. the village of occur rence; recovery memo of blood stained earth (Exh. PE) clearly reflects that investigating officer of the case took blood stained earth beneath the dead body during spot inspection from the place of occurrence, so much so Muhammad Nadeem (PW-8) during his statement before the Court has also clearly stated the same facts, relevant portion of his statement is being re- produced:- "On the same day, investigating officer inspected the place of occurrence and collected blood stained earth underneath dead body , made it into sealed parcel and took tee same into possession vide recovery memo Exh. PE attested by , me and Muhammad Zeeshan".
Similarly , Muhammad Zeeshan (PW-9) has also deposed the very same facts, relevant portion of his statement is also being re-produced:- "On the same day, investigating officer inspected the place of occurrence and secured the blood stained earth underneath the dead body and took the same into possession vide recovery memo Exh. PE attested by me and Muhammad Nadeem PW".
Perusal of site plan of place of occurrence (Exh.PK) and particularly Point No.1 given in the same clearly shows that dead body of the deceased was lying at the place of occurrence, therefore, the aforementioned claim/version of the prosecution that Parveen Akhtar was shifted in injured condition from the place of occurrence to the hospital and she expired there has not been established rather clearly falsified. This scenario clearly shows that said claim/version was concocted just to cover the delay in lodging First Information Report (FIR). Nutshell is that FIR in this case is not promptly recorded rather same was got registered after consultation, deliberation; concoction; procurement of witnesses and fabrication of false version, hence, it has lost its efficacy and resultantly smashed the case of prosecution. It goes without saying that in post-mortem report (Exh.P A), it is clearly mentioned that time of death provided through police papers was 05.00 p.m., furthermore, Mahmood Ahmad (S.I./PW -10) has clearly stated during his statement before the Court that he record statement of complainant at about 05.00 p.m.; relevant portion of his statement is being re-produced:- "I recorded the statement of complainant at about 5:00 P .M." Meaning thereby that occurrence took place prior to 05.00 p.m., now question does arise that where is said statement which was recorded at 05.00 p.m., answer is very simple that it was suppressed and subsequently statement of complainant (Exh.PD/1) has been prepared; even perusal of Fard Biyan (Exh.PD1 1) reveals that time of occurrence as 05.30 p.m. has been subsequently/separately added/ written in the same after recording complete statement whereas in the inquest report (Exh.P A/2), at its Page No.3 (which is Page No.100 of the paper book), time of occurrence has been mentioned as 05.00 pm., therefore, it is crystal clear that prosecution is not certain about exact time of occurrence and recording of statement of the complainant. The above discussed scenario has made the allegedly given time of occurrence, time of death, time of recording statement of the complainant as dubious and polluted, therefore, it can be safely said that prosecution has remained failed to establish these vital aspects of the case with certainty/exactness.
9. Furthermore, as mentioned above, Parveen Akhtar expired within 30-minutes after receipt of injuries due to excessive blood oozing, if Muhammad Aslam/PW -7 (husband of the deceased), Muhammad Nadeem/PW -8 (brother of husband of the deceased) and Muhammad Zeeshan/PW -9 (son of the deceased) were present there at the relevant time of occurrence, then why they did not move her immediately to hospital for medical aid and why statedly she was shifted from there after about 1 or 1-1/2 hour; although, even said claim was also found false because her dead body was still available at the place of occurrence, when investigating officer secured blood stained earth from there (as mentioned above). It was also version of the prosecution that motor cycle of the complainant was stolen and Muhammad Bilal (appellant) through phone call asked the complainant to bring money and get his motor cycle back but registra tion number , colour and any proof of ownership of said motor cycle could not be provided by the complainant in the FIR, during investigation or trial; he even did not get registered any rapat, complaint or case with respect to alleged theft of his motorcycle; he even did not produce any phone or phone number to the police on which appellant allegedly called him and asked him to bring money and get motorcycle; he even did not produce any call data in this regard during investigation or trial; even said motorcycle or its any recovery memo was not produced during trial. It was also version of the prosecut ion that complainant, cited eye- witnesses and deceased went to the place of occurrence on two motor . cycles but neither their number , model, colour , company has been told nor said motor cycles have been produced during investigation or trial of the case; said motor cycles even have not been shown in the site pan of place of occurren ce (Exh.PK) if complainant and cited eye-witnesses were present at the time of occurrence there and shifted Parveen Akhtar to hospital on motor cycle, then their clothes must had been smeared with blood but none of them has produced any such clothes, complainant. and both other cited eye-witnesses are not residents of the village Chak 45/3-R Azafi Basti, where occurrence allegedly took place rather they are residents of another vicinity namely Donga Bonga, hence, admittedly they are chance witnesses, therefore, their presence at the place of occurrence and testimony can only be believed if same is corroborated by some independent and strong piece of evidence but the same is absolutely lacking/missing in this case. Complainant (PW-7) has clearly stated in his stateme nt before the Court that he does not know the distance between Donga Bonga and Chak 45/3-R, where occurrence took place. He has further stated that prior to instant occurrence, accused was not known to him, relevant portion of his statement is being re- produced:- "I do not know the distance between Dunga Bunga and Chak No.45/3-R. I had not got registered any Rappat or FIR regarding the theft of my motor cycle. Prior to the instant occurrence, there was no quarrel or dispute between me and the accused. Furthermore, prior to the instant occurrence, accused was not known to me".
Very important and vital aspect of the case is that Muhammad Zeeshan (PW-9) in his statement before the Court has not deposed about accompanying of complainant with them to the place of occurrence and presence of complainant at the time of occurrence there; relevant portion of his statement is being re-produced:- "On 30-03-2014 at about 5:30 P.M. I along with my mother Parveen Akhtar deceased, my uncle Muhammad Nadeem on two motor" cycles went to Chak No.45/3-R Azafi Basti in connection with taking our stolen motor cycle" .
Perusal of aforementioned statement of Muhammad Zeeshan (PW-9) clearly shows that Muhammad Aslam (complainant) neither accompanied them to the place of occurrence nor was present at the relevant time at the place of occurrence. It is also important to mention here that according to own case of the prosecution, assailants were four in number , equipped with firearm weapons and place of occurrence was in their complete control, then if complainant, his brother (Muhammad Nadeem/PW -8) and his son (Muhammad Zeeshan/PW -9) were at the place of occurrence, then why they have not been targeted rather Parveen Akhtar has been killed; Muhammad Zeeshan (PW-9) with whom Parveen Akhtar was boarding on motor cycle had not received even a single scratch during occurrence; this aspect has also raised eye-brows regarding their presence at the relevant time, at the place of occurrence. In view of what has been discussed above, presence of the complai nant, cited eye-witnesses at the relevant time, at place of occurrence has not been established, therefore, ocular account has not been proved.
10. As far as medical evidence is concerned, it is case of prosecution that firing made by appellant hit Parveen Akhtar at her right shin (posterior) and left thigh (medial); perusal of pictorial diagram (Exh.P A/1, Page No.96 of the paper book) clearly suggests that entry wounds cannot be caused at such locale by firing of one assailant at a time because their locale is absolutely contra ry to each other; even motor cycle has not been hit; duration of time mentioned in postmortem report between death and post-mortem i.e. 6-8 hours also does not tally with the time given by the prosecution through ocular account. Medical evidence even otherwise cannot tell about identity of the assailants.
11. Neither any motive nor any immediate cause of occurrence could be proved by the prosecution.
12. Since, allegedly recovered gun and empties were sent together to the Punjab Forensic Science Agency , Lahore, for comparison on 19.06.2014, therefore, said recovery is inconsequential and report of the Punjab Forensic Science Agency , Lahore (Exh.PM) is of no help to the case of prosecution.
13. As far as proclamation of the appella nt is concerned, neither any warrant nor any proclamation has been got exhibited and even alleged proclamation has not been put to the appellant during his examination under section 342, Cr.P.C., therefore, same cannot be used against him and in this regard guidance has. been sought from the dictum laid down by august Supreme Court of Pakistan in case of "Ahsan Shahzad and another v. The State and others" (2019 SCMR 1 165); relevant portion from Paragraph No.8 is being re-produced for ready reference: "Likewise evidence of the abscondence of the appellant was not put to him while examining him under section 342 Code of Criminal Procedure, therefore same cannot be used against him for maintaining his conviction and sentence on a capital charge"
14. In view of what has been discussed above, it has been established that prosecution has been failed to prove its case against appellant beyond shadow of doubt, therefore, there is no need to discuss defence version.
15. Resultantly , Criminal Appeal No.198-J of 2016, filed by the appellant, is allowed; ' conviction recorded and sentence awarded to him through impugned judgment, is hereby set-aside. The appellant is acquitted of the charge, he shall be released forthwith from the jail, if not required in any other case.
16. Murder Reference No. 29 of 2016 is answered in negative and death sentence awarded to Muhammad Bilal (appellant) is not confirmed.