Muhammad Tariq Nadeem. J. Muhammad Umair s/o Muhammad Shafique, appellant along with his co-accused Muhammad Arshad, Muhammad Zakir , Muhammad Jaffar, Muhammad Javed, Muhammad Umair son of Abdul Qayyum and Muhammad Akram alias Munir Ahmed was tried by the learned trial court at Pakpattan in a private complaint under Sections 302, 324, 109, 148 PPC qua an occurrence which was earlier reported at Police Station Kalyana, Pakpattan and after conclusion of trial in the said private complaint vide judgment dated 23-04-2018 while acquitting rest of the accused, convicted and sentenced the appellant as under U/S 302 (b) PPC.
Life imprisonment along with compensation of Rs. 2,00,000/- to the legal heirs of Mukhtiar Ahmad, deceased, under section 544-A Cr.P.C. and in default thereof to further undergo 06 months S.I.Benefit of section 382-B Cr.P.C. was extended to the appellant.
The appellant Muhammad Umair son of Muhammad Shafique has filed the titled appeal against his conviction and sentence, while a criminal revision has been preferred by Ali Murad, complainant for enhancement of sentence from life imprisonment to normal penalty of death to Muhammad Umair, appellant as well as PSLA against acquittal of co- accused namely Muhammad Arshad, Muhammad Zakir, Muhammad Jaffar, Muhammad Javed, Muhammad Umair son of Abdul Qayyum and Muhammad Akram alias Munir Ahmed. Since common questions of law and facts are involved, therefore, these matters are being disposed of by means of this single judgment.
2. It is pertinent to mention here that earlier on the statement of complainant, FIR No.312 dated 07-12-2016, under sections 302, 324, 109, 148, 149 PPC was registered at Police Station Kalyana regarding the same occurrence but being dissatisfied with the investigation, he filed a private complaint.
3. The facts of the case stated by Ali Murad, complainant (PW.1) in his private complaint (Ex.PA) are that that Muhammad Jaffar, Muhammad Zakir and Muhammad Javed were brothers inter se; Muhammad Arshad and Muhammad Akram were brother inter se; Muhammad Akram etc. were maternal cousins of Muhammad Jaffar etc. accused persons; Muhammad Umair son of Abdul Qayyum was friend of Muhammad Akram; Muhammad Akram was brother-in-law (Behnoie) of Umair son of Shafique; Sundas Bibi was sister of Umair son of Shafique and wife of Muhammad Akram, accused. All accused were resident of complainant's village. It was further alleged that on 07-12- 2016 at about 03:30 p.m., he (PW.1) along with Mukhtiar Ahmad (since deceased), Ghulam Qadir and Aslam Sher were coming on motorcycle rickshaw from Chak No.15/KB and going to Chak No.14/KB. When they reached in front of house of Muhammad Akram, Muhammad Umair son of Muhammad Shafique, Muhammad Umair son of Abdul Qayyum and Muhammad Jaffar armed with pistol 12-bore, Muhammad Zakir armed with hatchet, Muhammad Javed and Muhammad Arshad alias Boota armed with sotas were already present there. They forcibly stopped rickshaw of complainant party , deboarded them and started quarrelling. On hearing the noises, Muhammad Nawaz and Mudassar Ameer , PWs reached at the spot. Muhammad Javed gave sota blow, which landed on left arm of Ghulam Qadir , Umair son of Abdul Qayyum made fire shot with his pistol which landed Ghulam Qadir at his left foot; Muhammad Jafar made straight fire shot with pistol which hit Alam Sher on his right thigh. Muhammad Umair son of Muhamm ad Shafiq went on the roof top of house of Muhammad Akram and while standing at balcony , made straight fire shot with pistol 30 bore targeting the left side of belly of Mukhtar Ahmad (deceased), who fell down and succumbed to the injuries at the spot. All the accused persons took to their heals while making aerial firing and extending threats of dire consequences.
The motive behind the occurrence was stated that on 06-12-2016 at about 4/5:00 p.m., Muhammad Akram along with his co-accused namely Ramzan and Muhammad Abid inflicted injuries to the complainant and due to that grudge and on the instigation of Muhammad Akram, other persons committed the murder of Mukhtiar Ahmad (deceased) and caused injuries to Alam Sher and Ghulam Qadir , PWs.
4. After recording cursory statements of the complainant and PWs the accused were summoned to face trial.
Learned trial court, after observing all the pre-trial codal formalities, framed charge against the appellant along with his co-accused on 05-07-2017 to which they pleaded not guilty and claimed trial. The prosecution in order to prove its case produced as many as 04 PWs and 07 CWs. The ocular account of the incident in issue had been provided by Ali Murad, complainant (PW.1), Ghulam Qadir (PW.2) and Alam Sher (PW.3). Falak Sher (PW.4) was the witness of abetment. Ghulam Mustafa Ghughtai, draftsman (CW.7) prepared scaled site plans (Ex.CW6/H-1 and Ex.CW .6/H-2). Masroor Khan, Inspector (CW.6) was the investigating officer of the case who stated about the various steps taken by him during investigation of this case. The medical evidence was provided by Doctor Ahmad Hassan, SMO (CW .3) and Doctor Muhammad W aseem, MO (CW .4).
Doctor Ahmad Hassan, SMO (CW.3) medically examined Ghulam Qadir, injured and Alam Sher, injured and issued their MLCs (Ex.CW.3/A and Ex.CW.3/B) respectively. Whereas Doctor Muhammad Waseem, MO (CW.4) conducted the autopsy on the dead body of deceased Mukhtiar Ahmad and issued PMR (EX.CW.4/A).
The remaining evidence produced by the prosecution was more or less is formal in nature.
5. After closure of prosecution evidence, statements under section 342 Cr.P.C. of appellant and his acquitted co- accused were recorded in which they denied the allegations leveled against them and professed their innocence.
The appellant neither opted to appear under Section 340(2) Cr. P.C. in disproof of the allegations levelled against him by the prosecution, nor produced defence evidence.
6. The learned trial court vide judgment dated 23-04-2018 found the appellant guilty , hence , convicted and sentenced him as mentioned and detailed above.
7. I have heard learned counsel for the appellant, learned Deputy Prosecutor General for the State assisted by learned counsel for the complainant and perused the available record with their able assistance minutely . The ocular account in this case has been furnished by Ali Murad, complainant (PW.1), Ghulam Qadir , injured (PW.2) and Alam Sher, injured (PW.3). Ghulam Qadir , injured (PW.2) during his cross examination admitted that Ali Murad, complainant (PW.1) was his friend from his childhood. He further stated that he received injuries by chance during the occurrence. He also described as under:- ".....The first time police met me and Alam Sher PW two days after the occurrence at DHQ , Hospital Pakpattan and we got recorded our statements to police on 08.12.2016 at hospital..."
Similarly , Alam Sher, injured (PW.3) durin g his cross examination admitted that the complainant and deceased are his relatives. He also stated in his cross examination that:- I received injury by chance during the firing at the place of occurrence..."
Ghulam Qadir , injured (PW.2) was resident of same village but his house was situated at a distance of 10 acres from the place of occurrence. Similarly , Alam Sher, injured (PW.3) was resident of Chak No. 15/KB Tehsil and District Pakpattan, which was situated at a distance of 3/4 kilometers from the place of occurrence. Whereas according to the site plans (Ex.CW .6/H, Ex.CW .6/H-1 and Ex.CW .6/H-2) their hous es were not mentioned near the place of occurrence, which fact was admitted by Ghulam Mustafa Chughtai, draftsman (CW.7) by stating that he has not mentioned the residencies of PWs, complainant and accused around the place of occurrence. I have also observed that Ali Murad, complainant (PW.1) is not the witness of inquest report (Ex.CW6/B) and post mortem report (Ex.CW4/A) of the deceased Mukhtiar Ahmad. Had he been present at the time and place of occurrence, he must has been the witness of inquest report. Similarly , complainant should have escorted the dead body to the hospital being son of the deceased and his name should have been mentioned in the post mortem report in the column of identification of the dead body . Things do not stop here, according to the stance of Ghulam Qadir , injured (PW.2) he was owner of the rickshaw , which was hired by the complainant party to reach at hospital for getting X- ray report regarding the previous incident of fight but as per statement of the investigating officer no such rickshaw was present at the time of his site inspection even no such rickshaw was produce d before the I.O to establish the above mentioned fact. Ghulam Qadir , injured (PW.2) failed to produce any proof regarding the ownership of the rickshaw . Supra mentioned facts and contradictions reveal that the occurrence had not taken place as per story of prosecution. All the PWs are interested and not truthful witnesses. They are not trustworthy and reliable, therefore, I discard their evidence. Reliance is placed upon the following case laws titled as "Abdul Jabbar alias Jabri Vs. The State" (2017 SCMR 1155), "Nadeem alias Kala Vs. The State and others" (2018 SCMR 153), "Mst. Mir Zalai Vs. Ghazi Khan and others" (2020 SCMR 319) and "Liaqat Ali and another Vs. The State and others"
(2021 SCMR 780 ).
8. There is another aspect of the case which makes the entire prosecution story doubtful is that Ghulam Qadir , injured (PW.2) during his cross examination described that the first time police met him and Alam Sher PW two days after the occurrence at DHQ, Hospital Pakpattan and they got recorded their statements to police on 08.12.2016 at hospital. There are plethor a of authorities/precedents of Hon'ble Supreme Court and this Court that even one or two days unexplained delay in recording the statement of eye-witnesses would be fatal and testimony of such witnesses cannot be safely relied upon. Reliance is placed upon the cases titled as "Rahat Ali vs. The State" (2010 SCMR 584 ) and "Muhammad Asif Vs. The State" ( 2017 SCMR 486 ).
9. I have also noted with grave concern that according to the contents of FIR (Ex.CW1/A), after hearing the sound of firing and noise Muhammad Nawaz and Mudassar , PWs reached at the place of occurrence when already Mukhtiar Ahamd (since deceased) as well as Ghulam Qadir , injured (PW.2) and Alam Sher, injured (PW.3) have sustained injuries whereas according to the contents of private complaint (Ex.P A), the complainant has narrated that both the supra mentioned PWs were present at the place of occurrence at the relevant time and they have witnessed the occurrence. In this way, the complainant has made dishonest improvement. The Hon'ble Supreme Court of Pakistan has observed in a plethora of judgments that a witness improves his statement and at the moment it is observed that the said improvement was made dishonestly to strengthen the prosecution case, such portion of his statement is to be discarded out of consideration. All the circumstances highlighted above, lead me to irresistible conclusion that presence of eye-witnesses at the place of occurrence at the relevant time is not free from doubts and the prosecution has failed to prove its case against the appellant beyond reasonable doubt.
Reference in this respect may be made to the judgments reported as "Muhammad Mansha Vs. The State" (2018 SCMR 772),"Muhammad Arif Vs. The State" (2019 SCMR 631), and "Khalid Mehmood and another Vs. The State and others" ( 2021 SCMR 810 ).
10. Coming to the evidentiary worth and value of the deposition of Ghulam Qadir , injured (PW.2) and Alam Sher, injured (PW.3) though, as per prosecution' s version , they had sustained injuries during the same occurrence but Doctor Ahmed Hassan, SMO (CW.3) during his cross examination stated that both the injured persons narrated about the history of injuries to him and the injured persons did not disclose name and weapon of any accused in their weapon in their statements. The said doctor also admitted that he did not mention in MLC of Ghulam Qadir , injured (Ex.CW .3/A) that he received any firearm injury on h is body . He further admitted that he cannot assess the kind of weapon, by which injuries were caused to Alam Sher and Ghulam Qadir injured persons. Even otherwise, the injuries are only indicative of their presence at the place of occurrence and does not necessarily amount that whatever they spoke is a gospel truth. While holding so, I have fortified my view from the cases of "Muhammad Pervez and another vs. The State" (2007 SCMR 670), "Amin Ali and another vs. The State" (2011 SCMR 323) and "Nazir Ahmad vs. Muhammad Iqbal and another" ( 2011 SCMR 527 ).
11. Another intriguing aspect of the case is that according to the prosecution story , the appellant made fire shot upon Mukhtiar Ahmad (deceased) from the roof of the house of Muhammad Akram, while standing at balcony , whereas the deceased was standing on the ground but Muhammad Waseem, MO (CW.4), who conducted the autopsy on the dead body of deceased during his cross examination stated as under:- "...it was observed during post mortem examination that entry and exit wound were on the same level of body . It was also observed that fire hitting the deceased had straight pass away ..."
Keeping in view the situation, it is not possible that if a fire is made from upward to downward then the injury could be straight. In this way, there is a material contradiction between the ocular and medical evidence. I fortify my view from the case laws titled as "Ali Sher and others Vs. The State" (2008 SCMR 707), "Amin Ali and another Vs. The State" (2011 SCMR 323), "Abdul Jabbar and another Vs. The State" (2019 SCMR 129), "Ishtiaq Hussain and another Vs. The State and others" (2021 SCMR 159) and "Najaf Ali Shah vs. The State" (2021 SCMR 736).
12. According to the contents of the complaint, on the fateful day, Muhammad Javed, co-accused gave sota blow, which landed on left arm of Ghulam Qadir; Umair son of Abdul Qayyum made fire shot with his pistol which landed at left foot of Ghulam Qadir; Muhammad Jafar made straight fire shot with pistol which hit Alam Sher on his right thigh but the supra mentioned co-accuse d have been acquitted of the charge through the impugned judgment, which has been assailed by the complainant through filing of Petition for Special Leave to Appeal, which has been dismissed by this court today . It is a trite principle of law and justice that once prosecution witnesses are disbelieved with respect to a co-accused then, they cannot be relied upon with regard to the other co-accused unless they are supported by corroborator y evidence coming from independent source and shall be unimpeachable in nature but that is not available in the present case. Reliance is placed upon the cases titled as "Shahbaz Vs. The State" (2016 SCMR 1763 ), "Nazir Ahmad versus The State" (2018 SCMR 787) "Haroon Shafique versus The State and others" (2018 SCMR 2118), "Munir Ahmad and another Vs. The State and others" (2019 SCMR 79 ) and "Safdar Abbas and others Vs. the State and others" (2020 SCMR 219 ).
13. The motive alleged by the prosecution has already been disbelieved by the learned trial court. It was an oral assertion of the complainant and no material evidence in the shape of ocular or documentary evidence was produced to substantiate the motive alleged by the prosecution. Although, the prosecution is not under obligation to establish a motive in every murder case but it is also well settled principle of criminal jurisprudence that if prosecution set up a motive but fails to prove it, then, it is the prosecution who has to suffer and not the accused. I very respectfully rely on the case of "Noor Muhammad v. The State and another" (2010 SCMR 97) wherein the Hon'ble Apex Court has emphasized as under:- "It has been held in the case of Muhammad Sadiq v. Muhammad Sarwar (1979 SCMR 214) that when motive is alleged but not proved then the ocular evidence required to be scrutinized with great caution. In the case of Hakim Ali vs. The State (1971 SCMR 432 it has been held that the prosecution through not called upon to establish motive in every case, yet once it has set up a motive and failed to establish it, the prosecution must suffer consequence and not the defense. In the case of Ameenullah v. State (PLD 1976 SC 629) it has been held that where motive is an important constituent and is found by the Court to be untrue, the Court should be on guard to accept prosecution story ."
A similar view was expressed by the august Supreme Court of Pakistan in the cases titled as "Sardar Bibi and another Vs. Munir Ahmed and others" (2017 SCMR 344), "Manzoor Ahmed Shah and others Vs. The State and others" (2019 SCMR 2000 ), "Muhammad Ilyas and another Vs. Ameer Ali and another" (2020 SCMR 305), "Liaqat Ali and another Vs. The State and others" (2021 SCMR 780) and "Khalid Mehmood and other Vs. The State and others" ( 2021 SCMR 810 ).
14. So far as recovery of pistol 30 bore from the appellant is concerned, the same being purely corroboratory in nature cannot only be considered to sustain conviction on a capital charge. Even otherwise, according to the report of the Punjab Forensic Science Agency (Ex.PF), the crime empties secured from the place of occurrence were found to have not been fired from pistol 30 bore allegedly recovered at the instance of appellant and the said report is only to the extent of its being in mecha nical operating condition. In these circum stances of the case, I am of the opinion that the said recovery of pistol is inconsequential and not helpful to the prosecution against the appellant.
Reliance is placed upon the cases titled as "Tahir Khan Vs. The State" (2011 SCMR 646) and "Muhammad Rafique alias Feeqa Vs. The State" ( 2019 SCMR 1068 ).
It is well settled that unless direct or substantive evidence is brought on record, conviction cannot be recorded on the basis of such type of evidence hows oever convincing it may be. Reliance is placed upon the case titled as "Muhammad Mansha Vs. The State " (2018 SCMR 772 ).
15. After having looked into the prosecution case from all angles, I have observed that the case to the extent of appellant is of doubtful in nature and his conviction and sentence cannot be maintained on the basis of such type of shaky and unreliable evidence. It is an established principle of law and equity that it is better that 100 guilty persons should let off but one innocent person should not suffer. As the preeminent English jurist William Blackstone Wrote "Better that ten guilty persons escape, than that one innocent suffer ". Benjamin Franklin, who was one of the leading figures of early American history , went further arguing "it is better a hundred guilty persons should escape than one innocent person should suffer ". The accused to be afforded the right of the benefit of doubt, it is not necessary that there should be many circumstances creating uncertainty and if there is only one doubt, the benefit of the same must go to the appellant. Reliance is placed upon case laws titled as "Tariq Pervez Vs. The State"
(1995 SCMR 1345 ), "Ayub Masih vs. The State" (PLD 2002 SC 1048 ), "Muhammad Akram vs. The State"
(2009 SCMR 230), "Khalid Mehmood and others Vs. The State" (2011 SCMR 664), "Arshad Khan Vs. The State" (2017 SCMR 564), "Muhammad Mansha Vs. The State" (2018 SCMR 772), "Asia Bibi Vs. The State and others" (PLD 2019 SC 64), "Muhammad Ashraf alias Acchu Vs. The State" (2019 SCMR 652) "Najaf Ali Shah vs. The State" (2021 SCMR 736) and "Naveed Asghar and 02 others Vs. The State" (PLD 2021 SC 600).
So, after considering all the pros and cons of the case, this Court is of the considered view that the prosecution has failed to prove its case against the appellant beyond any shadow of doubt, theref ore, this appeal is allowed, the impugned judgment is set-aside and the appellant Muhammad Umair son of Muhammad Shafique is acquitted of the charge. He is in jail; he be released forthwith if not required in any other case.
16. In view of my above findings, Criminal Revision No.211975 of 2018 has become infructuous and same is accordingly dismissed.
17. In so far as PSLA No.21 1973 of 2018 seeking reversal of acquittal recorded by the learned trial court in favour of respondents No.1 to 06 namely Muhammad Jaffar, Muhammad Zakar , Muhammad Javed, Muhammad Arshad, Muhammad Akram alias Munir Ahmed and Muhammad Umair son of Abdul Qayyum is concerned, I have gone through the reasoning recording by the learned trial court in support thereof and found it in consonance with the evidence brought on the record and as such reflected a possible view. Record further reveals that the Doctor Ahmed Hassan, SMO (CW.3), who medically examined Ghulam Qadir , injure d (PW.2) had opined that the possibility of fabrication of injuries cannot be ruled out. Ghulam Qadir , injured (PW.2) during his statement stated that police reached at the place of occurre nce after 30 or 45 minutes. He further stated that they remained present at the place of occurrence till arrival of police but again stated that police did not reach at the place of occurrence rather it met them on the road near chowk purana thana but his statement was not recorded in this case. He further took contradictory stance by stating that first time police met him and Alam Sher PWs two days after the occurrence at DHQ, Hospital, Pakpattan and thereafter their statements were recorded by police on 08-12-2016 at hospital. According to Ghulam Qadir , injured (PW.2) he reached at hospital at 10:00 p.m. on 07-12-2026 and he along with Alam Sher was medically examined after 10:00 p.m. on the same day but Doctor Ahmed Hassan, SMO (CW.3), who medically examined them stated that actually Ghulam Qadir , injured (PW.2) appeared before him on 07-12-2016 and was medically examined at 4:45 p.m., which makes the presence of said PW.s and their receiving injuries in the occurrence doubtful. Likewise, presence of Alam Sher (PW.3) at the place of occurrence and his receiving the injuries is concerned, admittedly he is relative of the complainant and deceased. He was resident of chak No.15/KB which was at a distance of 3 Km from the place of occurrence . During his statement the said witness failed to explain as to why on the fateful day, he chose the longest route to reach his village instead of adopting the shortest route. The learned trial court has rightly acquitted respondents No.1 to 06 and impugned judgment of acquittal to the extent of said respondents is borne out from the record as no unimpeachable evidence had proved their any sort of involvement into the occurrence. It is well settled law that every accused, after this acquittal, had earned a double presumption of innocence, for rebuttal of which heavy onus lay on the prosecution but it had failed to discharge the same. Reliance is placed upon the case law titled as "Muhammad Tasaweer vs. Hafiz Zulkarnain and two others" (PLD 2009 SC 53). Even otherwise, the judgment of learned trial court, while acquitting the accused/respondent cannot be said to be perverse and the reasons thereof are fanciful, speculative or artificial. It is golden principle in the arena of criminal jurisprudence that benefit of doubt always goes to the accused. Reliance can be placed on "Jehangir v. Aminullah and others" (2010 SCMR 491).
18. For what has been discussed above, PSLA No.21 1973 having no merit is dismissed.