SARDAR ARMED NAEEM, J.-- This judgment shall dispose of Criminal Appeal No.362 of 2018 titled as Zahoor Ahmad v. The State filed by Zahoor Ahmad (appellant) against his conviction and sentences, Criminal Appeal No.278 of 2016 titled as Muhammad Moeen Khan v. Sabir Ali, etc. filed by Muhammad Moeen Khan (appellant) against the acquittal of Sabir Hussain (respondent), Criminal Revision No.439 of 2015 titled as Muhammad Moeen Khan v. Zahoor Ahmad etc. filed by Muhammad Moeen Khan (petitioner) for enhancement of compensation awarded to Zahoor Ahmad (respondent No.1) from Rs.2,00,000/- to Rs.5,00,000/- and Murder Reference No.88 of 2015 titled The State v. Zahoor Ahmad transmitted by the learned trial Court for confirmation or otherwise of the sentence of death awarded to the appellant, being originated from the same judgment dated 27.10.2015 passed by the learned Additional Sessions Judge, Sahiwal in case FIR No.118/ 2013 dated 31.03.2013, under sections 302, 34, P.P.C., registered at Police Station Dera Rahim, District Sahiwal, whereby Zahoor Ahmad appellant was held guilty under section 302(b), P.P.C., convicted and sentenced to death, with the direction to pay Rs.2,00,000/ - as compensation to the legal heirs of the deceased, Naeem Hassan under section 544-A, Cr.P.C., recoverable as arrears of land revenue and in case of default to further undergo simple imprisonment for six months.
2. Brief facts of the case, as disclosed by Muhammad Moeen Khan, complainant are that, on 31.03.2013 at about 05:00 p.m., Zahoor Ahmad appellant armed with Pistol 30- bore along with co- accused Sabir Ali (since acquitted) committed Qatl-i-Amd of Naeem Hassan deceased by causing firearm injuries on different parts of his body.
3. After usual investigation, challan against the accused was submitted before the Court. The learned trial court after observing all the pre-trial codal formalities, charge sheeted the appellant and his co-accused to which they pleaded not guilty and claimed trial.
4. The prosecution, in order to prove its case, produced as many as 12 PWs during the trial. The ocular account, in this case, was rendered by Muhammad Moeen Khan, complainant (PW.4) and Muhammad Hanif (PW.5).
5. Medical evidence was furnished by Dr. Furqan Hussain, M.O. D.H.Q. Hospital Sahiwal (PW.6) who, on 31.03.2013 conducted post-mortem examination on the dead body of Naeem Hassan deceased and observed following injuries on his person: i. A lacerated wound 1 cm x 1 cm x deep going with blackened margin on the right mid part of right inguinal region (entry wound). ii. A lacerated wound 1/2 cm x 1/2 cm x deep going 2 cm below the injury No.1 with blackened margin (entry wound). iii. A lacerated wound 1 x 1.5 cm on the medial aspect of right thigh 8 cm below the injury No.2 with everted margins (exit of injury No.2).
In his opinion, the cause of death in this case was injury No.1 which damaged right femoral artery, profuse bleeding, hemorrhagic shock and death. This injury was sufficient to cause death in ordinary course of nature. The injuries were ante-mortem in nature and caused by fire-arm.
Probable duration between injury and death was within 20 minutes and between death and post- mortem was five hours. Ex. PF is the carbon copy of post-mortem report of Naeem Hassan deceased which was written and signed by him. Ex.PFI 1 was pictorial diagrams showing the locale of injuries.
6. Zahid Ali, Draftsman (PW.2) visited the place of occurrence. He prepared scaled site plan (Exh.PA and Exh.PA/ 1) and handed over to the Investigating Officer. Shahid Rajab (PW.3) identified the dead body of the deceased. On 31.03.2013, Shahzad Akbar, Moharrar H.C. (PW.8) on receipt of written complaint (Exh.PC), chalked out the formal FIR without any omission or addition. Liaquat Ali, Constable (PW.10) escorted the dead-body of Naeem Hassan deceased for post-mortem examination. Gulshair Ahmad (PW.11) was witness of recovery of Pistol 30 bore (P.5) along with three live bullets (P.6/1-3) at the instance of Zahoor Ahmad appellant, which was taken into possession vide Memo Exh.PK. He was also witness of recovery of Motorcycle No.SLK/2549 Road Prince (P.7) from Sabir Ali co-accused which was taken into possession vide recovery Memo Exh.PL.
Muhammad Siddique, S.I. (PW.12) was the Investigating Officer of this case. Rest of the PWs were formal, therefore, need not to be discussed.
7. Learned Assistant District Public Prosecutor gave up Muhammad Waseem, PW being unnecessary and after tendering into evidence reports of Punjab Forensic Science Agency (Exh.PM and Exh.PN) closed the prosecution evidence.
8. Statements of the accused under section 342, of the Code of Criminal Procedure, 1898, were recorded. They refuted all the allegations levelled against them and professed their innocence.
Responding to question No.8 "Why this case against you and why the PWs have-deposed against you Zahoor Ahmad appellant replied as under: "I am innocent in this case. The occurrence' was taken place by some unknown culprits at the place of occurrence. The story of FIR was twisted by the complainant consulting with the PWs, when the real culprits could not be traced out then the PWs and the complainant who are all close inter-se concocted a false story and due to party friction involved me in this false case, real facts have not been mentioned in the FIR by the complainant, on the fateful day, a rumor was in the mouth of people that at Bhallaywala More Naeem Hassan deceased was in a drunk position and was making commotion there in naked condition, he quarreled with some unknown persons at the time of alleged occurrence and the deceased was armed with pistol and assaulted at some unknown persons during that scuffling the unknown persons were trying to snatch the pistol which was in the hand of the deceased Naeem Hassan. In that situation, the pistol was activated and fire arm injuries sustained on the body of the deceased and he succumbed to the injuries.
The deceased was a drunker, many cases of narcotics were registered against him and many time he had gone in the jail. All the PWs and Complainant are relative inter-se, some days prior the instant occurrence, the elder brother of the deceased and the complainant quarreled with me in the village who is Lumberdar of the village. Due to that grudge and feeling insult ' the complainant falsely booked me in this case."
While answering to same question, Sabir Ali (since acquitted) stated as under: "I am innocent in this case. My co-accused Zahoor Ahmad was rival with the complainant party in the village in every election. My co-accused Zahoor Ahmad had remained against the complainant party and I remained supporter in favour of my Co-accused and against the complainant party and due to village party friction, the complainant falsely involved .me in this case."
9. They did not appear as their own witness on oath as provided under section 340(2) of The Code of Criminal Procedure, 1898 in disproof of the allegations levelled against them, however, Zahoor Ahmad appellant produced report issued by Rescue 1122 Sahiwal as Exh.DC, copy of FIR No.377/ 2010 under section 11/4/79 of Police Station Dera Rahim (Mark-A) and copy of challan regarding FIR No.377/2010, Police Station Dera Rahim, Sahiwal as Mark-B in documentary evidence.
10. The learned trial Court vide its judgment dated 27.10.2015, held the appellant guilty, convicted and sentenced him as mentioned and detailed above.
11. Learned counsel for the appellant contended that no independent witness was cited by the prosecution; that the ocular account was contradicted with the medical evidence; that the witnesses made dishonest improvements during trial, just to bring the ocular account in line with the medical evidence; that story of the prosecution does not fit in with the probabilities; that prosecution failed to prove motive and the positive report of Punjab Forensic Science Agency tendered into evidence as Exh.PN also lend no corroboration to the prosecution; that the statement of the eye-witnesses were full of contradictions/discrepancies and that the prosecution failed to prove its case against the appellant beyond reasonable shadow of doubt.
12. Learned Deputy Prosecutor General and the learned counsel for the complainant opposed this appeal with vehemence. It was argued that it was a daylight occurrence and there was no question of mistaken identity as the parties were known to each other; that the PWs have no grudge or grouse for false implication of the appellant; that the eye-witnesses rendered straightforward account of the occurrence and firmly withstood the test of cross-examination; that nothing favourable could be extracted in favour of defence despite searching cross-examination; that motive was proved; that medical evidence could not be given preference over the ocular account and that the positive report of Punjab Forensic Science Agency (Exh.PN) confirmed that the weapon recovered from the appellant was used during the commission of this crime, thus, the appeal deserves dismissal.
13. Heard. Available record perused.
14. The crime report suggested that during this occurrence, Naeem Hassan, the deceased lost his life. The occurrence took place at 05:00 p.m. on 31.03.2013 at Balleywala Mor within the area of Chak No.100/ 9-L. The appellant was armed with 30-bore pistol and emerged at the crime scene along with his acquitted co-accused, namely, Sabir Ali on a motorbike. The appellant raised a lalkara that the deceased would be done to death for non-payment of the outstanding amount and fired thrice hitting the deceased on various parts of his body. After sustaining injuries, the deceased fell down and the appellant as well as his co-accused fled away from the scene while extending threats of dire consequences to the complainant and the eye-witnesses. The crime report further suggested that the complainant along with Muhammad Hantf and Muhammad Waseem PWs lifted the deceased and informed rescue 1122 and got the deceased shifted to Civil Hospital, who succumbed to the injuries on his way to hospital.
15. The reason for the outbreak of this episode was, as mentioned above, non-payment of outstanding amount by the deceased.
16. In order to prove its case, the prosecution had produced two eye-witnesses including Muhammad Moeen Khan (PW.4) and Muhammad Hanif (PW.5). The complainant Muhammad Moeen Khan was real brother of the deceased while Muhammad Hanif PW. was their Behnoi. Both the eye-witnesses were related inter-se and with the deceased. The parties were inimical towards each other. The complainant as well as Muhammad Hanif (PW.5) claimed that they were standing at Balleywala Mor. Meanwhile, the appellant along with his acquitted co-accused launched attack upon the deceased, who succumbed to those injuries. At trial, none from the rescue 1122 was examined, thus, best evidence in this case was withheld. Both the eye-witnesses were not natural witnesses. Though, they claimed that they had seen the incident but had failed to explain injury No.3 which is on the medial aspect of right thigh as it was exit wound. Whereas, in their statements recorded during trial, the eye-witnesses, both, have described that two injuries were sustained by the deceased by making dishonest improvements to bring the case of prosecution in line with the medical evidence. They had specifically attributed that fire shots made by the appellant landed on the right side below belly and near thigh joint of the deceased. They lifted/shifted the deceased through rescue 1122 and, thus, their clothes might have stained with blood but neither any such cloth was taken into possession nor produced during the investigation. The complainant was a regular practicing lawyer but he did not report the incident to police. The place of occurrence i.e. Balleywala Mor was busy area surrounded by various shops and houses. The occurrence took place in front of a shop owned by Muhammad Sadiq Kumhar but none from the surrounding was examined during trial. The Investigating Officer Muhammad Rustam (PW.7) was also informed regarding this occurrence by someone. Thereafter, he reached DHQ Hospital at 07:00 p.m., however did not examine any personnel of 1122. The eye-witnesses claimed their presence at the time and place of occurrence along with the deceased but the story described by them does not fit in with the probabilities. A similar question came up before the Hon'ble Supreme Court of Pakistan in "Muhammad Saleem v. The State" (2010 SCM R 374) and the relevant observations of their lordships appearing in para 5 of the judgment at page 377 can advantageously be reproduced hereunder: "5. General rule is that statement of a witness must be in consonance with the probabilities fitting in the circumstances of the case and also inspires confidence in the mind of a reasonable and prudent person. If these elements are present, then the statement of a worst enemy of the accused can be accepted and relied upon without corroboration but if these elements are missing then the statement of a pious man can be rejected without second thought. Reference is invited to Haroon v. State 1995 SCMR 1627. The acid test of veracity of a witness is the inherent merit of his own statement. It is not necessary that an impartial and independent witness, who is neither related and independent witness, who is neither related to the complainant nor inimical towards the accused would stamp his testimony necessarily to be true. The statement itself has to be scrutinized thoroughly and it is to be seen as to whether in the circumstances of the case the statement is reasonable, probable or plausible and could be relied upon. The principle that a disinterested witness is always to be relied upon even if his statement is unreasonable, improbable and not plausible or not fitting in the circumstances of the case then it would lead to a very dangerous consequence. Reference is invited to Muhammad Rafique v. State 1977 SCMR 457 and Haroon v. State 1995 SCMR 1627."
17. The reasons for the outbreak of this episode was an altercation which took place between the deceased and the appellant prior to this occurrence at Adda 100/9-L but none from the said Adda was examined to prove the earlier altercation. The complainant attempted to explain this fact that he was told by the deceased regarding the incident of motive. Even the learned trial court in para No.30 of the judgment observed that failure to prove motive was not fatal to the prosecution in view of the confidence inspiring evidence of the eye-witnesses meaning thereby that no categorical finding was recorded by the learned trial court regarding motive.
18. Recovery of pistol and report of Punjab Forensic Science Agency (Exh.PN) was also useless as number of magazine of the pistol dispatched the Punjab Forensic Science Agency was 27665, whereas, recovery memo of the pistol (Exh.PK) suggested number of the magazine as 27685, which is altogether different.
19. On 31.03.2013 at 10:00 p.m. Dr. Furon Hussain held the autopsy and observed three injuries including two entry wounds and the other was exit of injury No.2. During the cross-examination, the Medical Officer admitted that he observed no corresponding holes on the clothes of the deceased and had he seen any hole, he would have definitely mentioned the same in postmortem examination report. His statement further reflected that it was possible that fire shots strike the body of the deceased in naked condition. Thus, medical evidence contradicts the ocular account.
A similar question came up before the apex Court in case titled "Muhammad Akram v. The State and others" (2016 SCM R 2081) the honorable Supreme Court held that:- "...after hearing the, learned counsel for the petitioner and going through the record of the case with his assistance we have noticed that the eye-witnesses produced by the prosecution were chance witnesses who had failed to establish the stated reason for their presence at the place of occurrence. The post-mortem examination of the deadbody of the deceased had been conducted with a noticeable delay. The medical evidence had contradicted the ocular account.
The motive set up by the prosecution had remained far from being established. The report received from the Forensic Science Laboratory was in the negative. In view of the above mentioned factors the High Court had concluded that the prosecution had failed to prove its case against respondent No.2 beyond reasonable doubt and we have not been able to take any legitimate exception to the said conclusion reached by the High Court. This petition is, therefore, dismissed and leave to appeal is refused."
In another case reported as "Nasrullah alias Nasro v. The State" (2017 SCM R 724), the Hon'ble Supreme Court observed as under:- "......the eye-witnesses produced by the prosecution had been clearly contradicted in this case by the medical evidence and no independent corroboration had been received by them through any other source inasmuch as the motive set up by the prosecution had not been proved and the alleged recovery of the weapon of offence was legally inconsequential. In a case of this nature the appellant could not have been convicted for the alleged murder merely because he happened to be the husband of the deceased."
In case reported as "Nadeem alias Kala v. The State" (2018 SCM R 153), the Hon'ble Supreme Court observed as under:- "(c) The medical evidence is merely a supportive/corroborative piece of evidence but in this case the same is not in line with the ocular, account because Dr. Monum Javed (PW.2) noted a firearm entry wound on the front of right thigh whereas it is case of the complainant in the FIR and both the witnesses of ocular account stated before the learned trial court that the other accused had caught hold of Maqsood Ahmad (deceased) from the front side."
A similar question also came up before their lordships, in a recent case titled "Najaf Ali Shah v. The State" (2021 SCM R 736), relevant observations of their lordships appearing in para No.9 of the judgment, are as under: "9. Mere heinousness of the offence if not proved to the hilt is not a ground to avail the majesty of the court to do complete justice. This 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." All the contradictions noted by the learned High Court are sufficient to cast a shadow of doubt on the prosecution's case, which entitles the petitioner to the right of benefit of doubt. It is a well settled principle of law that for the accused to be afforded this right of the benefit of the 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 petitioner. This Court in the case of Mst. Asia Bibi v. The State (PLD 2019 SC 64) while relying on the earlier judgments of this Court has categorically held that "if a single circumstance creates reasonable doubt in a prudent mind about the apprehension of guilt of an accused, then he/she shall be entitled to such benefit not as a matter of grace and concession, but as of right. Reference in this regard may be made to the cases of Tariq Pervaiz v. The State (1998 SCMR 1345) and Ayub Masih v. The State (PLD 2002 SC 1048)." The same view was reiterated in Abdul Jabbar v. State (2010 SCMR 129) when this court observed that once a single loophole is observed in a case presented by the prosecution, such as conflict in the ocular account and medical evidence or presence of eye-witnesses being doubtful, the benefit of such loophole/ lacuna in the prosecution's case automatically goes in favour of an accused."
20. The resume of the above discussion is that the eye-witnesses produced by the prosecution were actually not present with the deceased at the place and time of occurrence and after ruling out of the ocular account, the other circumstances of the case, if any, providing corroboration or support to the ocular account had categorically collapsed.
21. For what has been discussed above, a conclusion is inescapable that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. This appeal is, therefore, allowed.
The conviction and sentence of the appellant recorded by the learned trial court is set aside and he is acquitted of the charge on the basis of benefit of doubt. He shall be released from jail forthwith if not required to be detained in connection of any other case.
22. Murder Reference No.88 of 2015 is answered in the NEGATIVE and death sentence of Zahoor Ahmad (convict) is NOT CONFIRMED.
23. For the foregoing reasons, Criminal Appeal No.278 of 2016 and Criminal Revision No.439 of 2015 filed by the complainant are also dismissed.