FAROOQ HAIDER, J.---This single consolidated judgment shall dispose of Criminal Appeal No.91-J of 2017 filed through jail authorities by Nazar Hayat (appellant) against his "conviction and sentence " and Murder Reference No.58 of 2017 sent by learned trial court under section 374, Cr.P.C. for confirmation of death sentence awarded to Nazar Hayat (appellant), as both these matters have arisen out of one and same judgment.
2. Nazar Hayat (appellant) along with his co-accused persons namely Muham mad Naeem and Muhammad Ramzan was tried in private complaint case titled as "Ahmad Nawaz v. Nazar Hayat etc." and after conclusion of trial, learned trial Court while acquitting both the aforementioned co-accused persons vide impugned judgment dated 28.01.2017, has convicted and sentenced the appellant as under:-- Under section 302(b), P.P.C. to Death as Ta'zir for committing Qatl-e-amd of Muhammad Riaz with payment of compensation Rs. 5 ,00,000/- to the legal heirs of the deceased under section 544-A, Cr.P.C. and in default thereof to further suffer S.I. for six months and said compensation has been ordered to be recovered as arrears of land revenue.
3. Firstly , Ahmad Nawaz (complainant/PW -6) brought machinery of law into motio n by getting the case registered vide FIR No.196 (Ex.PE) on 22.06.2014, under sections 302, 324, 109, 34, P.P.C. at Police Station City Joharabad, District Khushab through his Fard Bayan (Ex.PD), alleging therein that he is resident of Dera Bhoodanwala and is landlord by profession; on 22.06.2014 at about 08:30 p.m. he along with his brother namely Rab Nawaz while riding on 'motorbike whereas his other brother namely Muhammad Riaz along with Habib Nawaz on another motorbike, proceeded towards City Jauharabad from their Dera; at about 09/10:0 0 a.m. when they reached near Old Chungi located at a distance of one Farlang {{URDU TEXT}} towards western side of Ronda Jauaharabad Mianwali Metalled Road, Sugar Mill Phatak, the motorbike Super Star bearing No.KBK-4288 was ahead of them, which was driven by Habib Nawaz whereas Muhammad Riaz was sitting behind him; suddenly , from their back side, Nazar Muhammad armed with gun pump action, Muhammad Naeem armed with gun .12 bore and Muhammad Ramzan while riding on a motorbike HONDA 125cc (driven by Muhammad Ramzan whereas Nazar Muhammad and Muhammad Naeem were sitting behind him) speedily crossed them, raised lalkara to Muhammad Riaz that he would not go alive today and Nazar Muhammad (accused) with the intention to kill, made straight fire with gun pump action, which hit at the left side of head of Muhammad Riaz; second fire was made by Muhammad Naeem (accused) with gun .12 bore, which hit at the back of Muhammad Riaz, due to which, he fell down from the motorbike; in his fallen position, Nazar Muhammad (accused) made second fire, which hit on his right hand; then Muhammad Naeem (accused) made fire which hit on the fingers of left hand of Muhammad Riaz; thereafter , Nazar Muhammad (accused) made straight fire upon Habib Nawaz, which was missed; all the accused persons raised lalkaras and cautioned that no one would come near to them; complainant party , due to fear, did not go near to them; however , witnessed the occurrence; accused persons while brandishing their weapons fled away from the spot while riding on motorbike; when complainant and his companions mana ged Muhammad Riaz, he had succumbed to the injuries.
Motive behind the occurrence was that 21/2 years prior to the occurrence, Muhammad Riaz (deceased) contracted marriage with Hamida Bibi, who was paternal niece of Nazar Muhammad (accused/appellant) and sister of Muhammad Ramzan, against the wishes of her parents and due to this grudge, accused persons in connivance with each other and on the instigation/abetment of Noor Muhammad, have committed the occurrence.
4. Thereafter , being dissatisfied with the conduct and investigation of the case conducted by police, Ahmad Nawaz (complainant/PW -6) filed private complaint (Ex.PJ/1) against Nazar Muhammad, Muhammad Naeem, Muhammad Ramzan and Noor Muhammad, who were summoned by the learned trial court to face the trial; however , before framing of charge, Noor Muhammad was murdered; thereafter , remaining accuse d persons were formally charge sheeted to which they pleaded not guilty and claimed trial; complainant produced as many as nine witnesses to prove the charge against the accused whereas two witnesses were examined by the learned trial Court as Court Witnesses. Medical evidence was furnished by Dr. Rao Gulzar Yousuf (PW-3) whereas Ahmad Nawaz (complainant/PW -6) and Rab Nawaz (PW-7) have furnished the ocular account; thereafter statements of the appellant and his co-accused were recorded under section 342, Cr.P.C. in which they refuted all the allegations levelled against them; they did not appear as their own witness under section 340(2), Cr.P.C. however , produced some documentary evidence in their defence. Learned trial court after conclusion of trial while acquitting co- accused persons namely Muhammad Naeem and Muhammad Ramzan , has convicted and sentenced the appellant as mentioned above through the impugned judgment.
5. Learned counsel for the appellant has submitted that conviction recorded against and sentence awarded to the appellant through impugned judgment are against the 'law and facts' and result of non-reading/misreading of evidence. Learned counsel for the appellant finally prayed for acquittal of the appellant.
6. Conversely , learned Deputy Prosecutor General assisted by learned counsel for the complainant has supported the impugned judgment and prayed for dismissal of instant appeal.
7. Arguments heard. Record perused.
8. It has been noticed that occurrence allegedly took place on 22.06.2014 at about 09/10 a.m.; postmortem examination over dead body of the deceased was conducted on 22.06.2014 at 01:30 p.m., after about four and half hours of the occurrence but Dr . Rao Gulzar Yousuf (PW -3) observed as under: - "Rigor mortis developed and p.m. staining present."
(emphasis added)
Since, during postmortem examination over dead body of the deceased, "Rigor Mortis" was found" developed ", therefore, at least 10-12 hours had elapsed between death and postmortem examination; hence, either occurrence has not taken place at 09/10 a.m. or postmortem examination was not conducted at 01:30 p.m., however , in either case, prosecution has to suf fer and this fact creates doubt in the case of prosecution.
As far as ocular account is concerned, same comprises upon statements of Ahmad Nawaz (complainant/PW -6) and Rab Nawaz (PW-7); admittedly they have no house, land, place of their job at, near or around the place of occurrence i.e. Old Chungi , situated at a distance of one Farlang {{URDU TEXT}} towards western side of Ronda Jauaharabad Mianwali Metalled Road, Sugar Mill Phatak, rather they are reside nts of Dera Bhodanwala Dakhli Hadali, Tehsil and District Khushab ; therefore, they are chance witnesses and their testimony can only be believed if same is corroborated by independent and strong evidence of unimpeachable nature but same is lacking in the case; although complainant tried to introduce concocted reason regarding presenc e at the spot but it was found as dishonest improvement, same is being reproduced: ?
"I had got recorded to the police that in order to furnish report about another occurrence, occurring at 08:00 A.M. over our Dera on the day of occurrence we all were proceedings towards the City Jauharabad. Confronted with Ex.
PD and Ex.PJ/1 wherein it is not so recorded."
Whereas, Rab Nawaz (PW -7) clearly stated before Court as under:-- "It is correct that I did not get record in my statement the reason to proceed to City Jauharabad over the day of occurrence."
Both these cited eye-witnesses could not offer any valid reason for their presence at the relevant "time and place " of occurrence; furthermore, they claimed that they were riding on motorcycle at the "time and place " of occurrence but said motorbike was neither produc ed during investigation nor even show n in the site plan of place of occurrence (Ex.CW1/C). Therefore, ocular account is neither confidence inspiring nor reliable, hence, same is hereby discarded.
It goes without saying that same ocular version comprising upon same set of witnesses has already been disbelieved against Muhammad Naeem (co-accused), to whom effective role of causing firearm injuries to Muhammad Riaz (deceased) was alleged and he has been acquitted of the charge in the case and as per statements of learned Deputy Prosecutor General and learned counsel for the complainant, no criminal appeal or petition for special leave to appeal against order of his acquittal has been filed by the State or complainant; therefore, now without strong and indep endent corroboration, same set of witne sses cannot be relied/believed against the present appellant and no such corroboration is available on the record; in this regard, guidance has been sought from the dictum laid down in the case of "Munir Ahmad and another v. The State and others "(2019 SCMR 79 )and " Altaf Hussain v . The State " (2019 SCMR 274 ).
As far as medical evidence is concerned, it is trite of law that medical evidence is mere supportive/confirmatory type of evidence; it can tell about locale, nature, magnitude of injury and kind of weapon used for causing injury but it cannot tell about identity of the assailant who caused the injury; therefore, same is also of no help to the prosecution in peculiar facts and circums tances of the case, in this regard, case of "Sajjan Solangi v. The State "
(2019 SCMR 872 ) can be safely referred.
As far as recovery of gun pump action (P-12) at the pointing out of the appellant is concerned, same was sent to Punjab Forensic Science Agency , Lahore on 14.10.2014 and shotshell cases/empties were sent on 26.06.2014, however , according to report of Punjab Forensic Science Agency , Lahore (Ex. PO), the shotshell cases/empties were not found fired from the allegedly recovered gun pump action and in this regard, relevant portion of the report is being reproduced:- "Conclusion Because of the difference in individual characteristics, the items SSI to SS3 shotshell cases could not have been fired in the item SI shotgun. Because of the absence of primer and lack of sufficient suitable corresponding microscopic markings, it was not possible to either identify or eliminate the item SS4 shotshell case as having been fired in the item Sl."
Therefore, aforementioned recovery of gun is inconsequential and of no help to H the case of prosecution; similarly , as far as, stated recovery of motorbike of Super Star company on 24.09.2014 at the pointing out of appellant from tyre shop of one Jamshed Butt vide Mem o (Ex.PL) is concerned, same cannot provide any corroboration to the case of prosecution because in the FIR (Ex.PE) and complaint (Ex.P .1/1), accused were allegedly riding on HONDA 125 CC motorbike.
As far as motive is concerned, it is a double edged weapon and in peculiar facts and circumstances of the case, it can be considered as reason for false implication of the appellant.
So far as abscondance of the appellant is concerned, same cannot cure defect of case of prosecution; further- more, perusal of warrant of arrest (Ex.CW -1/D) of appellant reveals that it was not issued to any police officer for execution rather through this warrant accused was asked to arrest accused, it did not carry any house number , street number and name of any Mohallah, similarly , it has not been mentioned in the proclamation (Ex.CW -1/E) that in how much period or till which date, accused had to surre nder; reports of Process Server on the same i.e. warrant and proclamation, do not contain name of any neighbourer or respectable of vicinity; therefore, both warrant and proclamation are defective, mandatory requirements have not been fulfilled and prosecution could not prove this limb of its case; hence, no corroboration can be sought from such absco nsion which, even otherwise, is only for a period of 2 months and 17 days because Nazar Hayat (appellant) appeared before Investigating Officer after getting ad-interim pre-arrest bail from the court on 09.09.2014 and was arrested on 18.09.2014, when he withdrew his bail; in this regard case of Muhammad Arif v. The State " (2019 SCMR 631) can be referred; even otherwise, abscondance is not proof of the charge; in this regard, guidance has been sought from the case of "Wajeeh-ul-Hassan v. The State " (2019 SCMR 1994 ); furthermore, when ocular account has been disbelieved, then abscondance is of no help to the case of prosecution. Reliance is placed on the case of "Rohtas Khan v. The State " (2010 SCMR 566 ).
9. Last but not least, eye-witnesses i.e. complainant/PW -6 and Rab Nawaz (PW-7) produced by prosecution have not been believed to the extent of Muham mad Naeem accused and he has been acquitted in this case; principle of "falsus in uno, falsus in omnibus " is now being applied for deciding criminal cases as held by full Bench of the Hon'ble Supreme Court of Pakistan in the case of "Notice to Police Constable Khizar Haya t son of Hadait Ullah on account of his false statement: In the matter of Criminal Miscellaneous Application No. 200 of 2019 in Criminal Appeal No.238-L of 2013 , decided on 4th March, 2019 ." (PLD 2019 Supreme Court 527 hence, Nazar Hayat (appellant) cannot be convicted on the basis of same set of witness/evidence in the case, in this regard case of "Mansab Ali v. The State " (2019 SCMR 1306 ) can also be ref fered.
10. In view of what has been discussed above, prosecution has been failed to prove its case against Nazar Hayat (appellant). Hence, instant Criminal Appeal No. 91-J of 2017 filed by Nazar Hayat (appellant) is hereby allowed, conviction recorded and sentence awarded to the appellant vide judgment dated 28.01.2017 passed by learned Additional Sessions Judge, Khushab/trial court, is hereby set-aside. The appellant shall be immediately released if not required in any other case.
11. Resultantly , death sentence awarded to Nazar Hayat (appellant) is not CONFIRMED and Murder Reference (M.R. No. 58 of 2017 ) is answered in NEGA TIVE .