Shehram Sarwar Ch., J.--Naveed Anjum and Sheharyar (appellants) along with their co-accused namely Ahmad Nawaz were tried by the learned Addl. Sessions Judge,. Hafizabad in case FIR No. 457 dated 20.09.2014, offence under Sections 302, 148 and 149 PPC registered at Police Station Saddar Pindi Bhattian District Hafizabad for the murder of Ali Raza (deceased) paternal nephew of complainant. Vide judgment dated 19.12.2016 passed by the learned trial Court, Naveed Anjum (appellant) was convicted under Section 302 (b) PPC and sentenced to death with a further direction to pay Rs. 4,00,000/-(rupees four lakh only) as compensation under Section 544-A, Cr.P.C. to the legal heirs of deceased and in default whereof to further undergo simple imprisonment for six months.
Sheharyar (appellant) was convicted under Section 302 (b) read with Sectio n 34 PPC and sentenced to imprisonment for life with a further direction to pay Rs. 4,00,000/- (rupees four lakh only) as compensation under Section 544-A, Cr.P.C. to the legal heirs of deceased and in default whereof to further undergo simple imprisonment for six months. Benefit of Section 382-B, Cr.P.C. was extended to him. Assailing the above convictions and sentences, the appellants have filed the appeals in hand whereas the learned trial Court has sent Murder Reference No. 548 of 2016 for confirmation or otherwise the sentence of death of Naveed Anjum (appellant) as required under Section 374 of the Code of Criminal Procedur e. Muhammad Jahangir Khan, complainant has filed Crl. Appeal No. 41 of 2017 against acquittal of Ahmad Nawaz co-accused of the appellants.
Since all these matters have arisen out of the same, judgment, therefore, the same are being decided together through this single judgment.
2. Prosecution story , as set out in the FIR (Exh.P A) registered on the application (Exh.PF) of Muhammad Jahangir Khan, complainant (PW.7) is that his paternal nephew Ali Raza was working as Library Assistant at Government Degree College for boys Pindi Bhattian. On 20.09.2014 at about 7:30 a.m. he proceeded for his duty on motorcycle bearing registration No. 5050-LEV . Complainant along with Ahmad Ali and Liaqat Ali also proceeded on motorcycle for Pindi Bhattian Katchery in order to meet their counsel. They were at a distance of two acres from Ali Raza.
When they reached a little bit ahead from Mirza Bhangsikay , six persons crossed them on three motorcycles out of whom they recognized three persons namely Naveed Anjum, Sheharyar and Ahmad Nawaz. It was about 8:05 a.m. when the accused persons started firing upon Ali Raza in the area of Choudhu Ahmad Yar, due to which motorcycle of Ali Raza became out of order and Ali Raza fell down in nearby paddy crop. Naveed Anjum made a fire with pistol which landed on front of chest of Ali Raza. Sheharyar fired with pistol hitting on left side of face of Ali Raza. Ahmad Nawaz made a fire with pistol which landed on the neck of Ali Raza. The remaining three accused kept on firing with their pistols. Thereafter , the accused persons fled away towards Pindi Bhattia n on motorcycles while making firing. Ali Raza succumbed to the injuries on the spot. Motive behind the occurrence was that Naveed Anjum had suspicion that Ali Raza (deceased) had illicit relations with his sister which was not true.
3. After completion of investigation, report under Section 173, Code of Criminal Procedure was submitted in this case. Copies of relevant documents were provided to the appellants and their co-accused, as required under Section 265-C, Code of Criminal Procedure and formal charge was framed against them on 04.03.2015 to which they pleaded not guilty and claimed trial. Statements of the appellants and their co-accused under Section 342 of the Code of Criminal Procedure were recorded on 03.12.2016 wherein they refuted all the prosecution allegations levelled against them and professed their innocence. The appellants neither opted to appear as their own witnesses in disproof of the prosecution allegations as provided under Section 340(2) of the Code of Criminal Procedure nor did they produce any evidence in their defence. After conclusion of trial, the learned trial Court convicted and sentenced the appellants and acquitted their co-accused, as detailed above. Hence these appeals and murder reference.
4. We have heard learned counsel for the parties as well as the learned Prosecutor General for the State and gone through the record with their able assistance.
5. Undeniably , the post-mortem examination of the dead-body of Ali Raza (decea sed) was conducted about nine hours after the occurrence. Dr. Bilal Bin Ilyas (PW.10) has stated in his examination-in-chief that "According to the police papers death was occurred on 20.09.2014 at 08:00 a.m. I received the dead body in dead house at 10:30 a.m, complete documents from police at 04:30 p.m. and conducted autopsy at 05:OOp.m. on 20.09.2014" It has been held repeatedly by the Hon'ble Supreme Court of Pakistan that such noticeable delay is normally occasioned due to incomplete police papers necessa ry to be handed over to the Medical Officer to conduct the post-mortem examination of dead body of the deceased which happens only when the complainant and police remain busy in consultation and preliminary inquiry regarding the culprits in such cases of unwit nessed occurrence. Reliance is placed on case law titled as "Irshad Ahmed vs. The State" (2011 SCMR 1190) and "Nazeer Ahmed vs The State" ( 2016 SCMR 1628 ).
6. The ocular account in this case consists of Muhammad Jahangir Khan, complainant (PW.7) and Ahmad Ali (PW.8). In the FIR as well as before the learned trial Court it was the case of both these PWs that on 20.09.2014 at about 8:05 a.m. six persons while riding on three motorcycles attacked upon Ali Raza and committed his murder by making firing but the said story of compla inant has been negated by Mukhtar Hussain Shah S.I. (PW.11) by stating in his cross-examination as under:-- "... It is correct that complainant party forcibly took dead body from THQ hospital Pindi Bhattian and brought in chowk Pindi Bhattian. It is correct that complainant party raised slogans that prior to the instant occurrence our relative namely Khurram was murdered by Qaiser etc. and present murder has also been committed by said Qaiser etc. On 25.10.2014, Aziz Ahmed, Naseer Ahmed both sons of Nazir Ahmed, Riaz Hussain slo Said Muhammad rlo Choudhu Ahmad Yar joined investigation with me and their "Dera" was adjacent to the place of occurrence. Above said three persons are independent persons neither they have relation to the accused nor they have enmity with the complainant party . Aziz Ahmed above said maintained before me that they were going towards Pindi Bhattin from village "Mirza Bhangsikay" and they saw two motorcycle. Out of said two motorcycles, on one motorcycle only one person was riding whereas on second motorcycle two persons were riding. He further maintained before me that a person who was alone on a motorcycle was fired upon by one of two persons who was sitting behind the second motorcycle. He further disclosed to me that person who was fired upon fell down in the fields and persons who were sitting behind the second motorcycle alighted from motorcycle and fired upon the person who was lying in fields while lying condition. Above said Aziz further disclosed to me during investigation that the accused fled away from the place- of occurrence and when they saw person who received injury was succumbed to those injuries.... It came into my knowledge during investigation that Sheharyar accused has not fired upon deceased ...
After my transfer investigation was entrus ted to Nazar Hussain S.I. It is correct that he convened a joined meeting of accused Ahmed and complainant party . It is correct that twenty persons joined investigation with Nazar Hussain S.I. on behalf of accused Ahmed Nawaz. It is correct that Nazar Hussain relied upon the statements of Aziz, Naseer and Riaz and observed that Ahmad Nawaz accused not present at the time of occurrence".
We have further observed that both the witnesses of ocular account namely Muhammad Jahangir Khan, complainant (PW.7) and Ahmad Ali (PW.8) were chance witnesses because the occurrence allegedly took place in the area of Choudhu Ahmad Yar whereas both the witnesses of ocular account were resident of Mataiki.
Complainant (PW.7) has stated in his cross-examination that "I reside at a distance of 12/15km from the place of occurrence. I have no business or residence near the place of occurrence. In the village, I, AU Ahmad and Liaqat reside in separate houses and all of us are labourers. We had planned to go to the advocate a night before the occurrence in my house. Some of our family members were aware and the others were not that we are going to meet our advocate. When we left the village people saw us leaving but none of them asked us where we are going." Similar was the standpoint of Ahmed Ali (PW.8) in his cross-examination. The testimony of chance witness ordinarily is not accepted unless justifiabl e 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. The testimony of chance witness may be relied upon, provided some convincing explanations appealing to a 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.
Reliance may be placed on the cases reported as "Mst Shazia Parveen vs. The State" (2014 SCMR 1197) and "Muhammad Rafique vs. The State" (2014 SCMR 1698 ). We have further noted that Ahmad Nawaz co-accused of that appellant having similar role of causing firearm injury on the person of deceased with that of appellants has been acquitted by the learned trial Court, therefore, the question for determination before us, is whether the evidence which has been disbelieved qua the acquitted co-accused of the appellants namely Ahmad Nawaz can be believed against the appellants? In this regard, we are guided by the judgment of the Hon'ble Supreme Court of Pakistan reported as "Shahbaz vs. The State" ( 2016 SCMR 1763 ), wherein it was held at page 1765 as under: "2. ... The law is settled by now that if some eye-witnesses are disbelieved against some accused persons attributed effective roles then the same eye-witnesses cannot be relied upon to the extent of the other accused persons in the absence of any independent corroboration and a reference in this respect may be made to the cases of Ghulam Sikandar and another v. Mamaraz Khan and others (PLD 1985 SC 11), Sarfraz alias Sappi and 2 others v. The State 2000 SCMR 1758 ), iftikhar Hussain and others v. The State (2004 SCMR 1185) and Akhtar Ali and others v. State (2008 SCMR 6). In the case in hand no independent corroboration worth its name was available to the extent of Shahbaz appellant inasmuch as the trial Court and the High Court had disbelieved the motive set up by the prosecution, the alleged recovery of a chhurri from the custody of the appellant was inconsequential because the recovered chhurri was not stained with blood, post-mortem examination of the deadbody of Aftab Akhtar deceased was noticeably delayed as the same had been conducted in the following morning and the duration between death and post-mortem examination was recorded as about eleven hours. It appears that time had been consumed by the complainant party and the local police in procuring and planting eye- witnesses and in cooking up a story for the prosecution. The said story of the prosecution already stands substantially disbelieved to the extent of Muhammad Abbas co-accused and we have found that the same was not free from doubt even to the extent of Shahbaz appellant."
Therefore, we hold that the evidence of above two eye-witnesses is shaky in nature and cannot be relied upon for maintaining the convictions/sentences of the appellants.
8. Motive behind the occurrence was that Naveed Anjum had suspicion that Ali Raza (deceased) had illicit relations with his sister which was not true. No cogent/convincing evidence qua motive was produced by the prosecution during the trial. Furthermore, no independent witness qua motive was joined by police in investigation or produced by prosecution before the learned trial Court during trial. Therefore, we hold that prosecution has failed to substantiate motive against the appellants and same has rightly been disbelieved by the learned trial Court in the impugned judgment.
9. So far as the alleged recovery of .30 bore pistol at the instance of Sheharyar (appellant) is concerned the same is immaterial because the report of PFSA (Exh.PT)qua pistol is in the negative. As far as allegedly recovery of pistol at the instance of Naveed Anjum (appellant) is concerned the same does not advance the case of prosecution because it has been brought on record that the said appellant got recovered the said pistol while digging the earth near motorway which was an open place, accessible to everyone.
10. As far as medical evidence is concerned, the same may confirm the ocular account with regard to the receipt of injury , locale of injury , kind of weapon used for causing the injury , duration betwee n the injury and the death but it would not tell the names of the assailan ts. Reliance is placed on "Ata Muhammad and another versus The State" ( 1995 SCMR 599 ).
11. So far as the defence pleas taken by the appellants in their statements under Section 342, Code of Criminal Procedure are concerned, since the prosecution evidence is doubtful in nature, therefore, there is no need to discuss the same which are exculpatory in nature.
12. We have considered all the pros and cons of this case and have come to this irresistible conclusion that the prosecution could not prove its case against the appellants beyond any shadow of doubt. It is, by now well established principle of law that it is the prosecution, which has to prove its case against the accused by standing on its own legs and it cannot take any benefit from the weaknesses of the case of the defence. In the instant case, the prosecution remained failed to discharge its responsibility of proving the case against the appellants. It is also well established that if there is a single circumstance which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances which have created serious doubt about the prosecution story . Reliance is place on case law titled as "Muhammad Akram versus The State" ( 2009 SCMR 230 ).
13. For the foregoing reasons, both the above said appeals separately filed by Naveed Anjum and Sheharyar (appellants), are allcwed, convictions and sentences awarded to them vide judgme nt dated 19.12.2016 passed by the learned Addl Sessions Judge, Hafizab ad are set aside and the appellants are acquitted of the charges levelled against them while extending them benefit of doubt. The appellants are in jail. They shall be released forthwith if not required to be detained in any other case.
14. Murder Reference No. 548 of 2016 is answered in the NEGA TIVE and the sentence of death awarded to Naveed Anjum (convict) is NOT CONFIRMED .
15. In view of above discussion, Crl. Appeal No. 41 of 2017 filed by complainant against the acquittal of Ahmad Nawaz co-accused of the appellant having no merits is dismissed