CH. ABDUL AZIZ, J.----Through the instant appeal Naveed Ahmad (appellant) has challenged the vires of judgment dated 19.03.2010 passed by learned Additional Sessions Judge, Burewala in a trial held in case FIR No.104, dated 19.05.2004 under sections 302, 34, P.P.C., registered at police station Saddar Burewala, whereby, he was convicted and sentenced as under:- Under Section 449, P.P.C. to undergo 'ten years R.I with fine of Rs.10,000/- and in default of payment of fine, he was ordered to further undergo one month SI.
Under Section 302-B, P.P.C. to undergo Life imprisonment. He was also directed to pay compensation of Rs.100,000/- under section 544-A, Cr.P.C. to the legal heirs of deceased and in default whereof to undergo SI for six months.
Both the aforementioned sentences were ordered to run consecutively. However, benefit of section 382-B, Cr.P.C. was extended.
2. Succinctly stated the case of prosecution, as unfolded from the statement (Ex.PA) of Naseer Ahmad (complainant) (PW-1) is to the effect that he is resident of Chak No.541/EB; that his humzulf (husband of his wife's sister) namely Hafiz Muhammad Siddique had come to his in-laws at village 519 FB; that at about 6:30 a.m. Zaheer Ahmad who worked at Mill came in the house and went asleep in veranda; that he (complainant) and Hafiz Muhammad Siddique went to the house of neighbour Muhammad Siddique; that at about 8:00 a.m. on hearing noise of stopping of rickshaw, he along with Hafiz Muhammad Siddique and Muhammad Siddique came out of the room and saw Naveed Ahmad while armed with knife, Talib Hussain and Khadim Hussain both empty handed and rickshaw driver sitting in his rickshaw; that Naveed Ahmad and Talib Hussain went to the-- house of Zaheer Ahmad; that they also followed them and came at the door of the house and saw Talib Hussain exhorting his son Naveed to kill Zaheer Ahmad, who was sleeping in veranda; that consequent upon exhortation, Naveed gave successive blows of knife to Zaheer Ahmad, which landed on his belly, who fell on the ground; that thereafter Naveed Ahmad and Talib Hussain after raising lalkaras came out of the house through main gate and sat in the rickshaw, in which Khadim Hussain was already seated; that the assailants went towards main road and they kept standing being frightened; that they took Zaheer Ahmad to Civil Hospital Burewala, where he succumbed to the injuries. The motive behind the occurrence is that sister of accused Naveed had gone with Allah Ditta Jhabail, and the accused persons were in the notion that Zaheer Ahmad was a helping hand to Allah Ditta and on this grudge they committed his murder.
3. Subsequent to the registration of FIR, the matter was investigated by Falk Sher SI/I.O. (PW.3). On 19.05.2004 at about 11:00 a.m. he on the receipt of information about the occurrence arrived at THQ Hospital, Burewala where he recorded statement (Exh.PA) of Naseer Ahmad (complainant). On 03.06.2004, he arrested Naveed Ahmad who got recovered chhuri (P-3) which was taken into possession through recovery memo (Exh.PD). He also got prepared scaled site plan (Exh.P7). After completion of investigation the report under section 173, Cr.P.C. of the instant case was submitted before the court.
4. During trial, the prosecution produced as many as seven witnesses. Naseer Ahmad and Hafiz Muhammad Siddique (PW.1 and PW.2) are eyewitness of the occurrence, Falek Sher SI (PW.3) investigated the case, whereas, Dr. Muhammad Amjad Shakeel (PW.6) provided medical evidence.
5. After conclusion of prosecution evidence, appellant was examined under section 342, Cr.P.C, who refuted the allegations levelled against him and pleaded his innocence. The appellant neither opted to appear as witness in his own defence nor produced-any defence evidence. On the conclusion of trial, the appellant was convicted and sentenced as afore-sated, Hence, the instant appeal.
6. It is contended by learned counsel for the appellant that case in hand though apparently is arising out of a promptly lodged FIR, however, it was made to look so through tampering of record; that in fact the deceased was murdered by some unknown persons in the late hours of night and the attendance of witnesses was later secured to make the case as of direct evidence; that the eye-witnesses were not residents of the same vicinity and since they failed to offer any explanation about their presence at the spot, hence, they can safely be termed as chance witnesses; that the two eyewitnesses failed to narrate confidence inspiring detail of the incident and in fact their statements were strongly contradicted by the medical evidence; that deceased Zaheer Ahmad was provided some medical treatment before his death, however, the two witnesses uttered not a single word in this regard; that the motive behind the incident remained unproved thus the dubious ocular account failed to get any corroboration out of it; that though a dagger was recovered from the appellant and Chemical Examiner opined about it to be stained with human blood, however, no evidence was led as to where this dagger was placed after its recovery and when it was dispatched to the office of Chemical Examiner; that though reasonable doubt emerges from the plain reading of prosecution evidence, however, its benefit was not given to the appellant. With these submissions, it was urged that the appellant is entitled to be acquitted from the case.
7. On the other hand, learned Law Officer assisted by learned counsel for the complainant vociferously argued that case in hand is arising out of a promptly lodged FIR wherein the appellant is the sole person nominated with the allegation of having inflicted fatal blows to the deceased; that the postmortem examination in this case was conducted without extra ordinary delay; that the witnesses successfully proved their presence at the spot and gave all the details of the incident; that the ocular account is corroborated on one hand from the duly proved motive and on the other hand from the recovery of blood stained dagger effected on the disclosure of the appellant; that the appellant committed cold-blooded murder of an innocent person thus deserves no leniency and more importantly when the prosecution successfully proved its case.
8. Arguments heard and record perused.
9. It is discernible from the perusal of record that the incident which formed basis of the instant case occurred on 19.05.2004 at about 8:00 a.m. The crime scene is a house belonging to Zaheer Ahmad (deceased) situated in a vicinity known as Chak No.519/EB, Burewala. The information of the crime was imparted to police by Naseer Ahmad (PW.1) in THQ hospital, Burewala through oral statement (Exh.PA) made before Falak Sher SI, (PW.3). In the First Information Report, the burden of committing this crime was pointed towards three persons out of whom Naveed Ahmad was returned with a guilty verdict, whereas, two others namely Talib Hussain and Khadim Hussain were acquitted from the charge by the learned trial court. It is also important to mention here that since the age of Naveed Ahmad was determined on the eventful day as 15/16 years, hence, he was tried under the provisions of Juvenile Justice System Ordinance, 2000.
10. The ocular account in this case was furnished by Naseer Ahmad and Hafiz Muhammad Siddique (PW.1 and PW.2), who were brother-in-law (behnoi) of Zaheer Ahmad (deceased). As per their own admissions, both the eyewitnesses were having their abode at a place different from the vicinity of crime. To be precise, Naseer Ahmad (PW.1) was resident of Chak No.541/EB, which was situated at about 1-3/4, miles from Chak No.519/EB, where the incident occurred. So far as Hafiz Muhammad Siddique (PW.2) is concerned he was having abode in Chak No.86/15-L, District Khanewal and its distance from the house of deceased was about 60 miles. Both the eyewitnesses reached the house of deceased in the earlier hours of fateful day and none of them offered any special reason about their acclaimed visit. Naseer Ahmad (PW.1) stated unambiguously during cross-examination that deceased was living in the house all alone and realizing the importance of this aspect, relevant excerpt is being mentioned hereunder:- "We both came to the house of our in-laws without our wives and children. There was no body living in that house except Zaheer Ahmad deceased. I reached Chak No.519/E.B at about 6 am. on the day of occurrence."
Naseer Ahmad (PW-1) was blacksmith by profession whereas Hafiz Muhammad Siddique (PW.2) was earning his livelihood by working as carpenter. In the above backdrop, it is observed that both the eyewitnesses since offered no reason of their presence in the house of deceased and that too in the early hours of fateful day, hence, can safely be termed as chance witness. For the foregoing reason the deposition of both the eyewitnesses is to be scrutinized with utmost care and can only attain acceptance if strongly corroborated and supported from other attending circumstances.
The Hon'ble Supreme Court of Pakistan while embarking upon the proposition of chance witness observed as under in the case of Mst. Sughra Begum and another v. Qaiser Pervez and others (2015 SCMR 1141):- "A chance witness, in legal parlance is the one who claims that he was present on the crime spot at the fateful time, albeit, his presence there was a sheer chance as in the ordinary course of business, place of residence and normal course of events, he was not supposed to be present on the spot but at a place where he resides, carries on business or runs day to day life affairs. It is in this context that the testimony of chance witness, ordinarily, is not accepted unless justifiable reasons are shown to establish his presence at the crime scene at the relevant time. In normal course, the presumption under the law would operate about his absence from the crime spot. True that in rare cases the testimony of chance witness may be relied upon, provided some convincing explanations appealing to prudent mind for his presence on the crime spot are put forth, when the occurrence took place otherwise, his testimony would fall within the category of suspect evidence and cannot be accepted without a pinch of salt".
11. From scanning of ocular account, it is noticed that both the eyewitnesses claimed that at the eventful time, they were sitting in the house of a neighbour namely Muhammad Siddique Kamboh and attracted to the spot after hearing the noise of auto rickshaw. According to the prosecution case, aforementioned Muhammad Siddique son of Jamal Din also arrived at the scene and remained with the eyewitnesses even during police visit, however, neither his statement under section 161, Cr.P.C was recorded nor he appeared before the trial court. The two eyewitnesses deposed that Naveed Ahmad (appellant) inflicted successive dagger blows on the abdomen of Zaheer Ahmad, while he was lying on the cot. Strangely the witnesses made no endeavor to save the life of Zaheer Ahmad (deceased) either through intervention or by beseeching the accused persons. So much so, they raised no hue and cry to attract other residents of the vicinity so as to nab the perpetrators, more importantly when except Naveed Ahmad remaining were empty- handed. Even the deceased was removed from the spot so as to be taken to hospital after about half an hour of the incident. The aforementioned conduct since runs contrary to the natural human response, hence, gives rise to many questions, which can be resolved adverse to the prosecution case. In somewhat similar circumstances, the Hon'ble Supreme Court of Pakistan expressed in the case of Pathan v. The State (2015 SCMR 315) to the following effect:- "The presence of witnesses on the crime spot due to their unnatural conduct has become highly doubtful, therefore. no explicit reliance can be placed on their testimony. They had only given photogenic/photographic narration of the occurrence but did nothing nor took a single step to rescue the deceased. The causing of that much of stab wounds on the deceased loudly speaks that if these three witnesses were present on the spot, being close blood relatives including the son, they would have definitely intervened, preventing the accused from causing further damage to the deceased rather strong presumption operates that the deceased was done to death in a merciless manner by the culprit when he was at the mercy of the latter and no one was there for his rescue."
In another case reported as Liaquat Ali v. The State (2008 SCMR 95), the Hon'ble Supreme Court of Pakistan has observed as under- "He was a single alleged assailant and if the witnesses were there at the spot they could have easily overpowered him. This makes their presence at the spot doubtful"
12. According to the record autopsy over the body of Zaheer Ahmad was conducted by Dr. Muhammad Amjad Shakeel (PW.6) at THQ Hospital Burewala at about 2:00 p.m. According to the Doctor he observed stitched surgical incision on the abdomen of the deceased along with a stitched stab wound. From the surgical incision so observed by the Doctor it reasonably divulges that Zaheer Ahmad (deceased) was medically attended by some practitioner during his lifetime.
Though this was an important aspect, however, no evidence whatsoever was led by the prosecution to address that when and by whom the medical treatment was provided to Zaheer Ahmad (deceased). Naseer Ahmad (PW.1) was duly confronted with this aspect during cross- examination, however, he stated in unequivocal term that deceased took his. last breath before receipt of any medical treatment. In this regard an extract from the cross-examination of Naseer Ahmad (PW.1) is being referred blow:- "Deceased Zaheer Ahmad expired before conducting any operation on him."
From the above fact there emerges an anomaly, which remained un-answered thus has damaged the prosecution case beyond repair. From this anomaly a conclusion is inevitable that both the eyewitnesses were not in attendance till the death of Zaheer Ahmad and their attendance was procured later in the day. The theory of absence of PWs further gets strength from the admission of Naseer Ahmad (PW.1) that the deceased was living alone in the house.
13. I have also given considered thought to the recovery of chhuri (P-3) statedly effected on 08.06.2004 upon the pointing out and disclosure of Naveed Ahmad (appellant). The recovery or dagger was later found by the Chemical Examiner through his report (Exh. PL) to have human blood stains. In this regard it is observed that Zafar Iqbal 545 HC (PW.7) appeared in the dock and claimed to have been performing duty on the eventful day as Moharrer/Station Clerk. Though he testified to have received parcel of blood stained earth from the Investigating Officer on 19.05.2004, which according to him was dispatched on 26.05.2004 to the office of Chemical Examiner, however, deposed nothing about the receipt of dagger and, its onward transmission to the office of Chemical Examiner. Likewise, no witness appeared before the trial court to depose that the dagger was taken to the office of Chemical Examiner or to the Serologist. Inexorably, from the omission mentioned above, the prosecution failed to prove the safe custody and its onward transmission to the office of Chemical Examiner, therefore. the reports Exh.PL of Chemical Examiner and Exh.PL/1 issued by the Serologist have lost credibility.
14. The motive behind the occurrence was stated to be the fact that sister of Naveed Ahmad was abducted by one Allah Ditta and Zaheer Ahmad was supporting him, which ignited the situation.
Even after having examined the record with utmost circumspection, nothing as such is found available from which it may allude that the sister of Naveed Ahmad (appellant) was either abducted or Zaheer Ahmad (deceased) was having anything to do in the issue. Naseer Ahmad (PW.1) also admitted that he was never a participant of any reconciliatory effort in the abduction of sister of Naveed Ahmad. In such circumstances, this Court is left with no other option but to discard the motive as having no scintilla of truth in it.
15. The shortcomings arising out of prosecution evidence which arc mentioned above are sufficient to set aside the conviction awarded to the appellant. Resultantly, Criminal Appeal No.163-J of 2011 filed by Naveed Ahmad (appellant) is allowed and conviction and sentence awarded by the learned trial court is hereby set-aside. The appellant is on bail as such his surety stands discharged from the bail bonds.