Tariq Saleem Sheikh, J. Through this consolidated judgment we propose to decide Criminal Appeal Nos. 120640/J/2017, 127129/J/2017 and Murder Reference No.645/2017 as they all arise from the judgment dated 30.11.2017 handed down by the Additional Sessions Judge, Renala Khurd.
2. On 13.10.2014, Aimna Bibi (PW-2) (the "Complainant") filed a private complaint (Ex. PC) alleging that on 07.04.2013 her daughter Zeenat Bibi and two sons named Bhai Khan and Mian Khan went to the house of Zulfiqar Ali (since acquitted) in Chak No.1/1-RA, Okara, for reconciliation with the accused party. Usman Ghani (PW-3), Asim Ali (PW-4) and PW Haji Qasim Ali (not produced) was with them. They took very long and did not return home which worried her.
She went after them with her daughter Nusrat Bibi (PW-5) and reached Zulfiqar Ali's house at about 4:00 p.m. His Baithak's door was open and she saw 16 accused persons (named in the private complaint) and Zeenat Bibi, Bhai Khan and Mian Khan and their above-mentioned companions inside. All the accused were armed with hatchets except Hajrian Bibi and Sairan Bibi. According to Aimna Bibi, she was still watching when Imtiaz Ali, Binyameen, Muzammil Hussain and Ifraheem attacked Mian Khan and gave him hatchet blows on the head. Babar Ali alias Dhaani, Aamir, Sher Khan and Waheed hit Bhai Khan with their hatchets on his head. Hajiran Bibi and Sairan Bibi caught hold of Zeenat Bibi while Idrees Jutt and Mumtaz alias Pappu struck her on the head with their respective hatchets, while Mushtaq alias Musti gave a hatchet blow on her right shoulder. In the meantime, Shahid Ali and Zulfiqar Ali kept raising lalkaras, prompting the accused to kill the three persons named earlier. People of the village heard the cries and gathered at the place of occurrence upon which the accused fled, extending threats of dire consequences. Zeenat Bibi, Bhai Khan and Mian Khan succumbed to their injuries on the spot. The Complainant alleged that the motive behind this occurrence was that Binyameen's son Nasir Ali was murdered and he blamed her sons Mian Khan and Bhai Khan for it and prosecuting them.
3. Complainant Aimna Bibi further stated that her son-in-law Haji Qasim Ali had lodged FIR No.113/2013 dated 07.04.2013 (Ex. CW-1/8) about the above-mentioned occurrence with Police Station Saddar, Renala Khurd. However, he exonerated some of the accused persons after receiving huge amounts of money from them. The police were also in league with the accused party. Therefore, the Complainant added, she had exercised her right to file a private complaint.
4. The Additional Sessions Judge recorded cursory evidence of the Complainant and summoned the Appellants and their co-accused for trial. Mumtaz became a fugitive from the law and was declared a proclaimed offender after due process. On 4.5.2015, the learned Judge indicted the Appellants and seven others. All of them pleaded not guilty and claimed trial.
5. To prove the charge, Complainant Aimna Bibi herself appeared in the witness box as PW-2 and reaffirmed the contents of the private complaint Ex. PC. Usman Ghani (PW-3), Asim Ali (PW-4) and Nusrat Bibi (PW-5) furnished the ocular account and deposed in her support. Dr. Khizar Ahmad Moon (PW-1) and Dr. Maryam Rubina (PW-7) provided medical evidence. They conducted postmortem examinations on the dead bodies of Mian Khan, Bhai Khan and Zeenat Bibi. Besides, the learned Additional Sessions Judge examined 11 Court Witnesses. In documentary evidence, the prosecution produced the Memos Ex. CW-11/K, Ex. CW-11/L and Ex. CW-11/P pertaining to the recovery of hatchets from Appellants Muhammad Idrees, Babar Ali and Mushtaq, and reports of the PFSA Ex. PP/1, Ex. PP/2 and Ex. PP/4.
6. After the completion of the prosecution evidence, the Additional Sessions Judge recorded the statements of the Appellants and their co-accused under section 342 Cr.P.C. All of them refuted the evidence recorded during the trial and pleaded innocence. They stated that it was a blind murder.
Some unknown assailants killed Mian Khan, Bhai Khan and Zeenat Bibi as Mian Khan and Bhai Khan were dacoits and had enmity with various people. They stated that the PWs were not present at the spot when the occurrence took place. Since criminal litigation was pending between the parties before this occurrence, the Complainant had falsely implicated them. Neither the Appellants nor their co-accused recorded their statements under section 340(2) Cr.P.C. in disproof of the charge levelled against them. However, Appellant Binyameen tendered documentary evidence which included: attested copies of FIR Nos.56/2012, 74/2013, 767/2006, 361/2009, 10/2010, 13/2010, 20/2010, 91/2010, 86/2001 (Ex. DH, DJ, DK, DL, DM, DN, DP, DQ, and DR); attested copies of criminal record of Bhai Khan and Mian Khan (Ex. DS and Ex. DT); attested copy of private complaint titled Binyameen v. Mian Khan (Ex. DU); attested copy of cursory statement of witnesses (Ex. DV); copies of orders dated 7.11.2012 and 14.11.2012 (Mark-E and Mark-F); copy of application under section 491 Cr.P.C. titled Hajran Bibi v. DPO etc. and the order passed thereon (Mark-G and Mark-H), photo copies of FIR No.256/2011, 40/1020 192/2010, and 50/2012 (Mark-A, Mark-B, Mark-C and Mark-D). The remaining accused persons relied on these documents.
7. On the conclusion of trial, vide judgment dated 30.11.2017, the Additional Sessions Judge acquitted Zulfiqar Ali, Muhammad Shahid, Muhammad Muzammil, Khalid Mehmood, Waheed Khan, Aamir and Sher Khan. However, he convicted and sentenced the Appellants as under: Binyameen, Babar alias Dhani, Imtiaz Ali, Muhammad Idrees, Mushtaq alias Musti i) Convicted under section 302(b) read with section 149 PPC and sentenced to death as Tazir, on three counts for the murder of Mian Khan, Bhai Khan and Zeenat Bibi, with payment of compensation in the sum of Rs.50,000/- each to the legal heirs of each deceased in terms of section 544-A Cr.P.C. and, in default thereof, they would suffer simple imprisonment for a period of six months. ii) Convicted under section 148 PPC and sentenced to three years rigorous imprisonment with fine of Rs.10,000/- each and, in default thereof, they would suffer simple imprisonment for a period of two months.
Ifraheem i) Convicted under section 302(b) read with section 149 PPC and sentenced to death as Tazir, on three counts for the murder of Mian Khan, Bhai Khan and Zeenat Bibi, with payment of compensation in the sum of Rs.50,000/- to the legal heirs of each deceased in terms of section 544-A Cr.P.C. and, in default thereof, he would suffer simple imprisonment for a period of six months. ii) Convicted under section 148 PPC and sentenced to two years rigorous imprisonment with fine of Rs.10,000/- and, in default thereof, he would suffer simple imprisonment for a period of two months.
Sairan Bibi and Hajiran Bibi i) Convicted under section 302(b) read with section 149 PPC and sentenced to life imprisonment, on three counts for the murder of Mian Khan, Bhai Khan and Zeenat Bibi, with payment of compensation in the sum of Rs.50,000/- each to the legal heirs of each deceased in terms of section 544-A Cr.P.C. and, in default thereof, they would suffer simple imprisonment for a period of six months. ii) Convicted under section 148 PPC and sentenced to three years simple imprisonment with fine of Rs.10,000/- each and, in default thereof, they would suffer simple imprisonment for a period of two months.
The Appellants' sentences of imprisonment were ordered to run concurrently and they were extended the benefit of section 382-B Cr.P.C.
8. Ifraheem, Mushtaq Ahmad, Imtiaz Ali, Muhammad Idrees, Babar Ali alias Dhaani and Binyameen have filed Crl. Appeal No.120640/J/2017 while Hajiran Bibi and Sairan Bibi have filed Criminal Appeal No.127129/J/2017 against their conviction and sentence. Besides these appeals, the Additional Sessions Judge has sent Murder Reference No.645/2017 to this Court under section 374 Cr.P.C for confirmation of the death sentence awarded to Appellants Ifraheem, Mushtaq Ahmad, Imtiaz Ali, Muhammad Idrees, Babar Ali alias Dhaani and Binyameen. Neither the State nor the Complainant has assailed the acquittal order of the other accused.
9. In support of Crl. Appeal Nos.120640/J/2017 and 127129/J/2017, Mr. Muhammad Ahsan Bhoon, Advocate, contended that the prosecution had failed to prove its case against the Appellants beyond reasonable doubt. The learned trial court had failed to appraise the evidence properly which had caused a serious miscarriage of justice. He argued that, firstly, the prosecution had changed its version with every tide. Initially, Haji Qasim Ali lodged FIR No. 113/2013 (Ex. CW-1/8) about the incident against 16 persons but exonerated Haji Zulfiqar Ali during the investigation.
Subsequently, he filed the private complaint Ex. PA while Aimna Bibi (PW-2) came up with the private complaint Ex. PC. In the circumstances, the prosecution could not be believed. Secondly, Aimna Bibi (PW-2), Usman Ghani (PW-3), Asim Ali (PW-4) and Nusrat Bibi (PW-5) could not prove their presence at the spot at the relevant time. Thirdly, the said witnesses were interested and made dishonest improvements over their previous statements, making them untrustworthy.
Fourthly, during the investigation, the police found that Amir Ali, Binyameen, Waheed, Sher Khan, Muzammil Hussain and Khalid Mehmood were innocent. Fifthly, no weapon of offence was recovered from the Appellants. The hatchets attributed to Muhammad Idrees, Babar Ali alias Dhani and Muhammad Mushtaq were planted by the police. Even otherwise, they had no legal consequence as they were not blood-stained. Appellant Imtiaz was accused of giving a hatchet blow to Mian Khan on the head but the Investigating Officer recovered .7 mm rifle from him vide Ex.
CW-6/A which had no nexus with the crime. Lastly, the learned Additional Sessions Judge had convicted the Appellants on the same evidence it had acquitted the seven accused. Their conviction was not sustainable as there was no independent corroboratory evidence.
10. On the other hand, the learned Additional Prosecutor General, assisted by the learned counsel for the Complainant, supported the impugned judgment and argued that the prosecution had proved its case against the Appellants to the hilt. He submitted that the FIR regarding the occurrence was promptly lodged and the Appellants were nominated therein with specific roles.
Hence, the question of false implication did not arise. He argued that Aimna Bibi (PW-2) was constrained to file private complaint because her son-in-law, Haji Qasim Ali, and the police were spoiling the prosecution case. He next contended that the presence of the PWs on the place of occurrence was proved. They were reliable as there was no material discrepancy in their depositions. Medical evidence also supported them. The fact that the Appellants absconded after the occurrence was a corroborative piece of evidence and reinforced the prosecution case. The learned Law Officer further contended that the motive was proved. He prayed that the Appellants' conviction and sentence may be maintained, their appeals be dismissed, and the Murder Reference be answered in the affirmative.
11. We have heard the learned counsel and examined the record with their assistance.
12. On 7.4.2013 at about 4:00 p.m., Zeenat Bibi, Bhai Khan and Mian Khan were killed in the Baithak of Zulfiqar Ali's house in Chak No.1/1-RA, Okara. The same day at 6:00 p.m., the Complainant's son-in- law Haji Qasim Ali reported the matter to the police and lodged FIR No.113/2013 (Ex. CW-1/8). His version was that the Appellants and their co-accused (who have been acquitted by the trial court) devised a criminal conspiracy and, as a result, planned a meeting at Zulfiqar Ali's residence under the guise of reconciliation with Hajiran Bibi (Appellant in Crl. Appeal No.127129/J/2017) in a murder case. Haji Qasim Ali alleged that on the fateful day he went there along with Usman Ghani (PW-3), Asim Ali (PW-4), Mian Khan, Bhai Khan and Zeenat Bibi. The Appellants and their acquitted co- accused armed with hatchets were already present. When the meeting commenced, Shahid Ali and Zulfiqar Ali went out and the former bolted the Baithak's door from outside. The Appellants and their co-accused pounced on Haji Qasim Ali and his companions. Imtiaz Ali, Binyameen, Muzammil Hussain, gave hatchet blows to Mian Khan on his head. Ifraheem gave hatchet blow to Mian Khan hitting on his nose. Babar alias Dhani, Aamir, Sher Khan and Waheed gave hatchet blows to Bhai Khan on his head. Hajiran Bibi and Sairan Bibi caught hold of Zeenat Bibi while Idrees Jutt and Mumtaz alias Pappu gave her hatchet blows on the head. Bhai Khan, Mian Khan and Zeenant Bibi succumbed to the injuries on the spot. The accused then fled. Later, Haji Qasim Ali exonerated Zulfiqar Ali and the Investigating Officer declared him innocent on the basis of his affidavit.
13. On 06.11.2013, Haji Qasim Ali instituted a private complaint (Ex. PA) claiming that the police investigation was flawed because they had declared Binyameen, Aamir, Sher Khan, Waheed Khan, Muzammil Hussain and Khalid Mehmood alias Ajju innocent without any supporting evidence.
14. On 13.10.2014, i.e. one year and six months after the occurrence, Aimna Bibi filed private complaint Ex. PC. Her version differs from Haji Qasim Ali's FIR Ex. CW-1/8. She claims herself and Nusrat Bibi (PW-5) as eye-witnesses of the occurrence but the FIR does not speak of them.
Secondly, Aimna Bibi claimed that the door of Zulfiqar Ali's Baithak was open when she and the PWs reached but Haji Qasim Ali stated in the FIR that Zulfiqar Ali and Shahid Ali had bolted if from outside. Thirdly, Haji Qasim Ali did not nominate Mushtaq Ahmad as an accused in the FIR but Aimna Bibi has not only included him in her private complaint but also assigned the vital role of causing injury to Zeenat Bibi. In the circumstances, the prosecution evidence must be examined with extreme care and circumspection.
15. The prosecution produced four eye-witnesses to prove the charge against the Appellants and their co-accused. They are: Complainant Aimna Bibi (PW-2), Usman Ghani (PW-3), Asim Ali (PW-4) and Nusrat Bibi (PW-5). Albeit these witnesses deposed in line with the private complaint Ex. PC, they lack credibility due to a number of reasons. Aimna Bibi testified during the trial that on 7.4.2013 Zeenat Bibi, Bhai Khan and Mian Khan went to the house of Zulfiqar Ali with PWs Usman Ghani, Asim Ali and Haji Qasim Ali. She and Nusrat Bibi went later when they did not return home for a long time.
She added that the incident happened in their presence. However, during her cross-examination, Aimna Bibi admitted that that she claimed herself as the eye-witness of the occurrence for the first time in the private complaint Ex. PC even though she joined the investigation on various occasions which was natural because she had lost a daughter and two sons. Importantly, she did not get her statement recorded under section 161 Cr.P.C.
16. Similarly, Nusrat Bibi (PW-5) did not claim herself as an eye-witness till the institution of Aimna Bibi's private complaint Ex. PC. The relevant excerpt from her cross-examination is reproduced below: "I am daughter of Aimna Bibi Complainant and real sister of Bhai Khan, Mian Khan and Zeenat Bibi. I recorded my cursory statement before this court on 06.01.2015 and during my cursory statement for the first time I claimed myself to be eye-witness of the occurrence."
17. Significantly, PWs Aimna Bibi and Nusrat Bibi are not shown in the scaled site plan Ex. CW-7/A.
Khalil-ur-Rehman Draftsman (CW-7) deposed that on 12.4.2013 when he visited the place of occurrence along with the Investigating Officer, nobody claimed that they were also the eye- witnesses of the incident. The relevant excerpt from his cross-examination is reproduced below: "At the time of taking rough notes, neither Aimna Bibi nor Nusrat Bibi claimed to be eye-witnesses of the occurrence nor I showed their presence in the scaled site plan. Had they claimed to be present at the relevant time, I must have incorporated their names in the scaled site plan."
18. Usman Ghani (PW-3) and Asim Ali (PW-4) allegedly accompanied Haji Qasim Ali and the deceased persons to Zulfiqar Ali's house on 7.4.2013. Haji Qasim Ali mentioned their names in the FIR Ex.CW-1/B as eye-witnesses and Aimna Bibi also cited them in her private complaint Ex. PC. These PWs joined the investigation and got their statements recorded under section 161 Cr.P.C. PW Usman Ghani also appeared in the private complaint of Haji Qasim Ali (Ex. PA) and got recorded his cursory statement. As already stated, Aimna Bibi's version in her private complaint Ex. PC is different from that of Haji Qasim Ali. During the trial in the present case, which was conducted on Aimna Bibi's private complaint, PWs Usman Ghani and Asim Ali made dishonest improvements in their previous statements to support her and bring the case in line with medical evidence. The Appellants duly confronted them with their improvements. It is a settled law that a witness who improves his statement on material aspects of the case is untrustworthy. In Ibrar Hussain and others v. The State and another (2007 SCMR 605), the Hon'ble Supreme Court of Pakistan held: "It is a settled law that the witness making improvements and changing version as and when suited according to the situation then such type of improvements were found deliberate and dishonest, therefore, cause serious doubt on the veracity of such witness."
The above view was reiterated in Akhtar Ali and others v. The State (2008 SCMR 6); Muhammad Rafique and others v. The State and others (2010 SCMR 385); Muhammad Naeem Inayat v. The State (2010 SCMR 1054); Muhammad Saleem v. Muhammad Azan and another (2011 SCMR 474).
More recently, in Sardar Bibi and another v. Munir Ahmed and others (2017 SCMR 344), the apex Court ruled: "So the improvements and omissions were made by the witnesses in order to bring the case of prosecution in line with the medical evidence. Such dishonest and deliberate improvements and omissions made them unreliable and they are not trustworthy witnesses."
19. Another important aspect of the case is that the prosecution alleges that 16 accused and six persons from the complainant party assembled in Zulfiqar Ali's Baithak. According to Khalil-ur- Rehman Draftsman (CW-7), Zulfiqar Ali's Baithak measured 14' x 11' with only one door on the western side. It had no window or other entrance. It is quite astonishing that in such a small room the assailants gave hatchet blows to the deceased and no one except them received any injury.
The conduct of PWs Usman Ghani, Asim Ali and Haji Qasim Ali was also unnatural. They did not resist the attack and save their kin.
20. Admittedly, Appellant Binyameen's son Nasir (and the brother of Appellants Aamir and Babar alias Dhani) was murdered in respect of which Binyameen lodged FIR No. 50/2012 at Police Station Saddar against Bhai Khan and Mian Khan deceased, Afzal and Asim Ali (PW-4). Subsequently, he also filed a private complaint in which all these men were summoned and faced trial. Asim Ali (PW- 4) is the son of Haji Qasim Ali. None of them sustained any injury in the incident. The prosecution has failed to explain why the Appellants and their co-accused had not targeted them although they had a full opportunity.
21. Another aspect that casts doubt on the prosecution's story is that the postmortem examination of the deceased was performed 22-24 hours after the occurrence. In Muhammad Ilyas v.
Muhammad Abid alias Billa and others (2017 SCMR 54), the Hon'ble Supreme Court observed as follows while considering the issue of a delayed postmortem: "Post-mortem examination of the dead body of Muhammad Shahbaz deceased had been conducted after nine hours of the incident which again was a factor pointing towards a possibility that time had been consumed by the local police and the complainant party in procuring and planting eye-witnesses and cooking up a story for the prosecution."
22. The upshot of the above discussion is that the ocular account does not inspire confidence. The medical evidence furnished by Dr. Khizar Ahmad Moon (PW-1) and Dr. Maryam Robeena (PW-7) and the Postmortem Reports of the deceased (Ex. PA, Ex. PB and Ex. PW7/A) cannot prop up the prosecution case. It is now well settled that medical evidence may confirm the eye-witness account about the seat and nature of injuries, the kind of weapon used in an occurrence but cannot identify the assailant. Reference in this respect may be made to Altaf Hussain v. Fakhar Hussain and another (2008 SCMR 1103), Mursal Kazmi alias Qamar Shah and another v. The State (2009 SCMR 1410), Muhammad Saleem v. Shabbir Ahmed and others (2016 SCMR 1605) and Hashim Qasim and another v. The State (2017 SCMR 986).
23. The prosecution heavily relies on the hatchets, P-10 and P-11 and P-12 allegedly recovered from Muhammad Idrees, Babar Ali alias Dhani and Muhammad Mushtaq for corroboration of the ocular account. These recoveries have no legal consequence because the forensic reports (Ex. PP/1, Ex.PP/1 and Ex. PP/4) show that they were not blood-stained. Allegedly, .7 mm rifle was also recovered from Appellant Imtiaz but that has no nexus with the present case because he was accused of giving a hatchet blow to Mian Khan on the head.
24. Finally, the motive. The prosecution alleged that the motive behind the occurrence was the murder of Appellant Binyameen's son Nasir Ali. The law is that it will have a bearing on the case only if the prosecution succeeds in proving the charge against the accused through direct or circumstantial evidence. Even the strongest motive loses its importance when ocular testimony fails. Reliance is placed on Ghalib Hussain and others v. Muhammad Arif and others (2002 SCMR 20), Mst. Riaz Bibi v. Sardar and 3 others (1999 PCr.LJ 1323) and Mulazim Hussain v. The State and another (2010 PCr.LJ 926).
25. The alleged absconding of the Appellants after the occurrence is not conclusive proof of their guilt. It is only a supporting evidence. In Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others (PLD 2009 SC 53), the august Supreme Court held: "Adverting to the question of abscondence, it may be stated that mere absconsion is not conclusive proof of guilt of an accused, person. It is only a suspicious circumstances against an accused that he was found guilty of the offence. However, suspicions after all are suspicions. The same cannot take the place of proof. The value of absconsion, therefore, depends on the facts of each case. The courts have admitted it as a supporting evidence of the guilt of accused. The absconsion of the accused may be consistent which is to be decided keeping in view overall facts of the case."
26. In an earlier case, which is reported as Liaquat Hussain and others v. Falak Sher and others (2003 SCMR 611), the apex Court held: "Disappearance of an accused person could have ordinarily offered useful corroboration to the prosecution case. But this is so only in a situation where the prosecution case is reasonably believable to some extent and requires some corroboration for proof of the same."
27. One more point. The learned Additional Sessions Judge has convicted the Appellants on the same evidence on which it has acquitted Zulfiqar Ali, Muhammad Shahid, Muhammad Muzammil, Khalid Mehmood, Waheed Khan, Aamir and Sher Khan accused. Neither the State nor the Complainant, Aimna Bibi, has challenged the acquittal order before this Court. We agree with Mr. Bhoon that the Appellants' conviction is unsustainable because no independent corroborating evidence exists.
28. In the result, we accept Crl. Appeal Nos. 120640/J/2017 and 127129/J/2017 and set aside the Appellants' conviction and sentence. They shall be released from jail if not required to be detained in any other case.
29. Murder Reference No. 645/2017 is answered in NEGATIVE and the death sentence awarded to Ifraheem, Mushtaq Ahmad, Imtiaz Ali, Muhammad Idrees, Babar Ali alias Dhani and Binyameen is NOT CONFIRMED.
30. Above are the reasons for our short order dated 21.11.2022.