MUHAMMAD WAHEED KHAN, J----This judgment shall decide Criminal Appe al No.239 of 2016 filed by appellant (against his conviction and sentence ) and M.R. No.34 of 2016/BWP forwarded by the learned trial Court for confirmation of death sentence awarded to appellant or otherwise. As both these matters have arisen out of the same judgment dated 29.04.2016 passed by the learned Additional Sessions Judge, Ahmedpur East in case FIR No.75 dated 25.02.2012 registered under section 302/34, P.P.C. at Police Statio n Nowshara Jadeed, Ahmedpur East, whereby appellant was convicted and sentenced as under:-- Under section 302(b), P.P.C. awarded death sentence. He was also directed to pay compensation of Rs.
2,00,000/- under section 544-A, Cr.P.C. to the legal heirs of deceased Hasnain ul Haq, in default whereof, to undergo six months simple imprisonment.
Whereas co-accused persons, namely , Ghulam Nabi and Sardar were acquitted of the charge by the learned trial Court vide same judgment by extending them benefit of doubt.
2. Hasnain ul Haq got recorded his statement to Liaqat Ali SI, when he was in injured condition in the following words;- "That he was resident of Mouza Gari Khandi and was a farmer (Zamindar). He married with Mst. Zubaida Bibi daughter of Allah Ditta some 7/8 years ago, who is 'sister of Naseer Ahmad accused. On account of family dispute hot words were exchanged between Hasnain ul Haq and Naseer Ahmad accused. Accused Naseer extended threat of dire consequences, On the day of occurrence at about 7.00 am complainant was going to drop his daughter namely Mst. Rida Bibi to Madresa, when he reached near the house of Naseer Ahmad accused, then the accused persons Naseer Ahmad son of Allah Mita caste Bhutta resident of Mouza Gari Khandi armed with Kassi and Ghulam Nabi son of Ghulam Qadir along with Sardar Ahmad son of Ghulam Nabi both Warran by caste armed with soties emerged there, they started abusing and accused Naseer Ahmad inflicted Kassi blow on the head of Hasnain ul Haq while accused Ghulam Nabi and Sardar inflicted soti blows. On the alarm the witnesses namely Muhammad Zahid son of Muhammad Sharif and Abdul Rasheed son of Muhammad Raflque both channar by caste along with other persons came, on which accused persons fled away . Hasnain ul Haq was shifted to hospital Mubarakpur for treatment by the witnesses.
Later on Hasnain ul Haq was referred to B VH Bahawalpur for treatment where on the following morning, he died."
3. Dr. Abdul Sattar Khan Medical Officer RHC, Mubarakpur , who conducted autopsy of the deceased Hasnain ul Haq on 26.02.2012 at about 12:00 (noon) appeared as PW-3 and found four injuries on person of the deceased and opined that probable time which elapsed between injuries and death was '36 hours' and between death and postmortem examination was 'within 06 hours'.
4. After registration of the case, investigation was carried out by the police and on completion of the same, report under section 173, Cr.P.C. was submitt ed before the learned trial Court. Thereafter; learned trial Court after observing codal formalities, framed charge against the appellant along with his co-accused, which was denied by him, hence, the trial commenced.
5. In order to prove its case, prosecution produced as many as eleven witnesses. Ocular account was furnished by eye-witnesses Rida Bibi daughter of the deceased who appeared as PW-4 and one Rahseed Ahmad who appeared as PW-6. Muhammad Arshad SI who partially conducted investigation of the case appeared as PW-2.
Liaqat All SI who got recorded the statem ent of deceased in injured condition and Investigating Officer of the case appeared as PW-5, whereas remaining PWs were of formal in nature. Thereafter , the prosecution closed its evidence by producing certain documentary evidence.
6. After recording the prosecution evidenc e, appellant was examined under section 342, Cr.P.C., wherein he denied all the allegations levelled against him. He neither opted to appear as his own witness under section 340(2), Cr.P.C. nor produced any evidence in his defence.
7. Learned trial Court after appraisal of the prosecution evidence convicted and sentenced the appellant in the above mentioned terms while acquitting his co-accused persons, hence, this appeal and Murder Reference.
8. In support of the instant appeal, learned counsel for the appellant contended that the prosecution story , inherently flawed, not confidence inspiring and as such, there was no occasion for learned trial Court to convict the appellant on the charge of murder; that the two co-accused persons who were nominated in the FIR with the attribution of causing injuries at the person of the deceased with clubs had been acquitted by the learned trial Court; that the eye-witness accounts and the medical evidence were at variance qua the time of occurrence; that the prosecution's stance had been wavering on the point of motive as the prosecution witnesses had introduced three different type of motives on different occasions; that the recovery of weapon of offence was of insignificance being not blood stained and no evidence had been led by the prosecution to prove the factum of abscondence of the appellant and lastly prayed that since the prosecution had failed to prove its case against the appellant "beyond shadow of reasonable doubt", so under the circumstances, by allowing the instant appeal filed by the appellant/accused person, conviction and sentence awarded to him may be set aside and he may be acquitted of the charge.
9. Conversely , learned Deputy Prosecutor General while faithfully defending the impugned judgment submitted that the prosecution had proved its case by producing trustworthy and credible eviden ce; that the stance of both eye- witnesses right from the inception of the FIR has been that it wac the presen t appellant who had killed the deceased by giving Kassi blow; that the prosecution had also proved the motive part of the incident not only before the investigating agency but also in the learned trial Court; that the weapon of offence recovered in pursuance of the disclosure of the appellant and his long abscondence also corroborated the case of the prosecution and lastly prayed that since the prosecution has proved its case to the hilt, hence, the instant appeal was liable to be dismissed.
10. We have heard the arguments of learned counsel for the parties and have gone through the record with their assistance.
11. We have straightway observed that in fact the instant crime report was registered on the statement of Hasnain ul Haq deceased (injured at that time), who, according to the prosecution, while giving his statement before the police officer in Mubarkpur hospital stated that he was going on a motorcycle to drop his daughter Rida Bibi aged about 8/9 years to Madrassa, he was intercepted by the appellant along with Ghulam Nabi and Sardar Ahmed (acquitted co-accused). Naseer Ahmed appellant inflicted Kassi blow on his head, whereas, the co-accused Ghulam Nabi and Sardar Ahmed gave him multiple club blows and this incident was stated to have happened in the backdrop of a previous grudge between them on domestic issues. The prosecution witnesses and the contents of FIR described that the alleged incident took place on 25.02.2012 at 07:00 AM and after sustaining the injuries, Hasnain ul Haq (injured at that time) was taken to hospital by the PWs, wherein, he himself lodged the FIR by making his statement before the police officer but we were surprised to see the statement of Dr. Abdul Sattar Khan Medical Of ficer RHC Mubark-pur who appeared as PW -3 before the learned trial Court and stated as under:- "Stated that on 24.02.2012 injured Hasnain ul Haq along with Muham mad Saleem No. 728/C was brought to RHC Mubarkpur along with injury statement Ex. PD which bears my signature and inquest report Ex. PD/2 which bears my signature as Ex.PD/3. The injured was referred to BVH due to his serious condition ."
Underline provided for emphasis.
Meaning thereby , according to the version of the medical officer, he had attended Hasnain ul Haq (injured at that time) on 24.02.2012, one day prior to the alleged incident, as according to the stance of prosecution, the occurrence took place on 25.02.2012. We while considering that it may be a slip of tongue or clerical mistake, have perused Ex.PD (injury statement), the date of preparing the same was also mentioned as 24.02.2012. When this situation was confronted to the learned Deputy Prosecutor General, he could not be able to give any explanation in this behalf, rather , frankly conceded that there was a conflict qua the date of incident in the statements of eye- witnesses, medical evidence and the police papers.
12. The other aspect of the case was that the star witness of this case Rida Bibi (PW-4) daughter of the deceased while narrating the incident stated that before causing injuries by the accused persons to his father , they pushed him, as she and her deceased father boarded on a motorcycle resultantly , they (PW-4 and the deceased) fell on the ground and also stated that as a result thereof, she also received injury on her person but we have noted that this aspect of the case had not been described in the FIR or by any other PW including the second eye-witness Rasheed Ahmed (PW-6) and admittedly , Rida Bibi (PW-4) had also not been medically examined to prove this aspect of the case. The PWs further claimed that after receiving the injuries, the wife of the deceased and other PWs shifted Hasnain ui Haq (injured at that time) to hospital but on going through the statement of Dr. Abdul Sattar Khan (PW-3), it was found that the injured was brought to hospital by Muhammad Saleem constable, so, the medical evidence also negated the assertion of the eye-witnesses in this respect. We have also noted another point that, according to Rida Bibi (PW-4), during the occurrence, when accused persons Sardar Ahmed and Ghulam Nabi (since acquitted) were quarrelling with her father , at that time, Naseer Ahmed appellant took Kassi from the mosque and inflicted injury on her father , so this story of bringing the Kassi from the mosque had not been described by Hasnain ul Haq himself (injured at that time) in the FIR, rather , it was stated therein that firstly Naseer Ahmed appellant inflicted Kassi blow on his person and thereafter Ghulam Nabi and Sardar Ahmed co-accused caused multiple club blows to him.
13. There is yet another aspect of the case that according to the medical officer when the injured was brought to RHC Mubarkpur on 24.02.2012 by Muhammad Saleem constable, he was immediately referred to BVH, due to his serious condition but no record was available in this regard that who took the injured to BVH. No document in this respect was produced to show that who attended the injured and which treatment was given to him and no bed ticket etc was available.
14. Furthermore, we have noted that while conducting the postmortem examinatio n, medical officer observed four injuries on the person of the deceased and the injuries attributed to the acquitted accused persons were also found mentioned therein. So, there is force in the assertion of learned counsel for the appellant that since the prosecution evidence has been disbelieved to the extent of acquitted accused persons by the learned trial court, the same cannot be relied upon without having independent and strong corroboratory evidence. Even otherwise, we found that Rasheed Ahmed (PW-6) the second eye-witness had not plausibly explained his presence at the place of occurrence,
15. As far as the motive part of the incide nt is concerned, the claim of the deceased, which was incorporated in the FIR, was that some hot-words were exchanged between him and the appellant Naseer Ahmed prior to the alleged incident on a matrimonial dispute, whereas, Rida Bibi (PW-4) and Rasheed Ahmed (PW-6) both eye-witnesses specifically stated that the incident took place in the backdrop of a motive that deceased Hasnain ul Haq demanded the share of his wife from the accused persons and due to this reason, the accused persons committed the murder of the deceased. But when we perused the statements of the investigating officer Liaqat Ali, SI (PW-5), he introduced another story regarding the motive by stating as under:- "The motive was regarding dispute of Rishta between the parties."
Meaning thereby , when the prosecution has been wavering at the point of motive on different occasions and it was not established with certainty what prompted to the alleged occurrence, so under the circumstances, we found that the prosecution remained failed to prove the motive part of the incident.
16. As far as the recovery of weapon of offence (Kassi) from the possession of the appellant was concerned, that hardly advanced the case of the prosecution as the same was not blood stained. Even otherwise, it is settled by now that when the ocular version of the prosecution is doubtful and unbelievable, the evidence of the recovery cannot be made basis to maintain the conviction of the accused.
17. So far as the aspect of the abscondence of the appellant was concerned, it was the case of the prosecution that Naseer Ahmed appellant had been arrested by the police on 08.10.2014, meaning thereby , the appellant surrendered before the police after lapse of about two years and eight months but when the learned Law Officer was enquired about the availability of any evidence qua wilful abscondence of the F appellant, the answer was in the negative.
18. In the light of above discussion, we found that the evidence of the prosecution was replete with doubts, thus, no implicit reliance could be placed on it to maintain the capital punishment of the appellant on the charge of murder , so while relying upon the judgments passed by the august Supreme Court of Pakistan in cases of "Muhammad Ashraf alias Acchu v. The State (2019 SCMR 652), "Munir Ahmad and another v. The State and others " (2019 SCMR 79), "Muhammad Akram v. The State "(2009 SCMR 230), "Ayub Masih v. The State " (PLD 2002 SC 1048 ) and "Tariq Pervez v. The State " (1995 SCMR 1345 ), we reach to an irresistible conclusion that the prosecution remained failed to prove its case against the appellant beyond any reasonable shadow of doubt.
19. In the light of above discussion, we think that the conviction should not be allowed to stand, therefore, the instant appeal is allowed and conviction and sentence imposed on the (appellant by the learned trial Court is set aside and he is acquitted of the charge by extending him benefit of doubt. Appellant, namely , Naseer Ahmed is in jail, so, he be released forthwith if not required to be detained in any other case .Resultantly , Murder Reference No.34 of 2016/BWP is answered in the NEGA TIVE and death sentence of the appellants is NOT CONFIRMED .