SOHAIL NASIR, J. By way of this single judgment Murder Reference No. 57/2018 submitted in terms of Section 374 of the Code of Criminal Procedure, 1898 (Cr. P. C.) and Criminal Appeal No. 980 of 2018 filed by Irfan Saleem (appellant) are being decided together as arise out from judgment dated 25.09.2018 passed by learned Additional Sessions Judge Talagang, District Chakwal on the basis of which appellant was convicted and sentenced as under: - UNDER SECTION 302(b), P.P.C. to death penalty as Tazir'. He was ordered to pay Rs.500000/- (five lacs) as compensation in terms of Section 544-A Cr. P. C to the legal heirs of deceased and in default thereof to further undergo, six months SI.
UNDER SECTION 449, P.P.C. to imprisonment for life and fine of Rs.50000/- (fifty thousand). In default of payment of fine, he was ordered to further undergo six months S.I.
It was also ordered that sentences of appellant shall run concurrently and benefit of Section 382- B, Cr. P. C will be available to him. By way of same judgment Farhan Saleem was acquitted.
2. Facts of the case are that on 20.04.2017 Syed Intisar Abbas Shah (PW-4) filed a private complaint against appellant and his brother Farhan Saleem where he maintained that he and his brother Syed Lutaf Ali Shah (deceased) used to reside in one and the same house; on 25.08.2013 at about 02:00 am his brother slept on a cot in the courtyard; electric bulb was on; at about 04:00 am, appellant armed with 12 bore gun entered in the courtyard by scaling over the wall of the house who was identified in the electric light; he made a fire that hit on the chest of Syed Lutaf Ali Shah, whereas second fire made by him caused an injury on the right arm of Lutaf Ali; on hue and cry appellant escaped from the house by using the main door; when he was followed by/complainant, Farhan Saleem (acquitted) was also found present there on a motorbike; both were succeeded to escape on that bike; at that occasion Syed Asad Ali (PW-3) his brother was going to mosque for offering the prayer who had also seen appellant and Farhan Saleem while escaping from crime venue; Syed Lutaf Ali Shah in injured condition was taken to THQ Hospital, where he had died; motive was that appellant had suspicion that deceased had illicit relations with his wife and because of this reason appellant had divorced her.
3. After recording primary evidence, processes were issued against appellant and Farhan Saleem.
4. It is also important to mention here that about the same occurrence FIR No. 143 (PA) at Police Station City Talagang was recorded on 25.08.2013 under Sections 302/452/34, P.P.C. on the complaint of Syed Intisar Abbas Shah. The reason for filing the complaint after about more than four years according to complaint was that Investigating Officer did not take into possession the electric bulb nor was shown in the rough site plan and that the statements of witnesses were not recorded properly beside the fact that police was in connivance with accused.
5. Farhan Saleem was arrested on 13.12.2013, who was declared innocent during the investigation whereas appellant who was declared absconder was arrested on 14.11.2017.
6. Primarily a charge under Sections 302/452/34, P.P.C. was framed against Farhan Saleem on 05.09.2017 who pleaded not guilty. Later on when Irfan Saleem (appellant) was arrested another charge on 13.03.2018 under Sections 302/449/34, P.P.C. was framed against appellant and Farhan Saleem for which they pleaded not guilty and demanded their trial.
7. In support of its case prosecution had produced Mehboob Hussain SI/author of FIR (PW-1), Syed Zaheer Hussain Shah who identified the dead body (PW-2), Syed Asad Ali a witness of `WAJTAKKAR'
(PW-3), Syed Intisar Abbas/complainant (PW-4), Dr. Nazeer Ahmad (PW-5), Muhammad Bashir HC (PW-6), Abdul Haq ASI / Moharrar (PW-7), Shahbaz Ali Constable (PW-8) and Saqib Naseer/draftsman (Pw-9).
8. The learned trial Court also examined Tahir Muhammad Khan SI/IO (CW-1), Sajjad Iqbal SI/IO (CW-2), Tasawar Hussain SI/IO (CW-3) and Zafar Iqbal ASI/IO (CW-4).
9. After producing the reports of PFSA (PP and PQ) prosecution's evidence was finally closed.
10. Appellant and Farhan Saleem were examined under Section 342 Cr.P.C. To the question that why this case was against him, version of appellant was as under: - "One Qari Saeed was murdered prior to the instant occurrence and in the said murder case, Syed Zia Hussain Shah who is brother-in-law of PW Asad Ali Shah (real brother of deceased Lutaf Ali Shah) was involved as accused and in said case Lutaf Ali Shah deceased supported Syed Zia Shah as a result of which Syed Lutaf Ali Shah was receiving threats of dire consequences from the relatives and supporters of said Qari Saeed and due to this reason supporters and relatives of above said Qari Saeed had committed the murder of Syed Lutaf Ali Shah. Complainant party only in order to avoid enmity with the supporters and relatives of Qari Saeed involved me and my co- accused in this case as scapegoat. Prior to the registration of the instant case, an altercation took place between me and the complainant as a result of which complainant nourished a grudge against me and my co-accused therefore, he got registered the instant case against me and co- accused in consultation with his relative. All the private PWs are closely related to the deceased, therefore, they deposed falsely against me and my co-accused. Police officials deposed against me as during the course of investigation. 1.Os of the instant case joined the hand with the complainant and remaining officials PWs are subordinate to the 1.0, therefore, they deposed against me falsely"
11. He did not opt to produce defence evidence or to appear in terms of Section 340(2), Cr.P.C.
12. Learned counsel for appellant maintains that this is the duty of prosecution to prove its case beyond shadow of doubt without taking any benefit from the weakness of defence; if said duty is not discharged, the benefit of doubt shall go to accused not as a matter of concession but as a privilege; presence of complainant Syed Intisar Abbas Shah at the relevant time was unnatural and similarly when there was no mosque near to the house of Asad Ali Shah, his explanation that he was going to offer the prayer was so-called; the delay of reporting the matter to police has created serious doubts in prosecution's case which has not been explained; identification of appellant was not possible because during investigation, no source of light was taken into possession; filing of complaint after more than four years speaks about mala fide conduct of complainant; acquittal of Farhan Saleem has brought the declarations of relevant witnesses under serious criticism therefore they cannot be believed qua the appellant also; motive has not been proved as alleged by prosecution; recovery of gun and medical evidence are corroborative pieces of evidence and if ocular account is disbelieved, the supportive evidence cannot play any role for the purpose of conviction; learned trial Court did not apply its judicial mind while appreciating the evidence which was shaky, contradictory and suffering from serious infirmities. Learned counsel has finally demanded acquittal for his client.
13. On the other hand, learned DDPP and learned counsel for complainant jointly, maintain that delay in FIR in the given circumstances when the real brother of complainant was seriously injured and priority was to shift him to hospital is not relevant; both Syed Intisar Abbas Shah and Syed Asad Ali Shah are the natural witnesses who at the relevant time in natural course were present at the relevant places; defence was unable to shatter the credibility of any of the witnesses during cross examination; ocular account is of strong worth which is supported from medical evidence and recovery. They ultimately argue that on the basis of well reasoned judgment, appellant has rightly been convicted by learned trial Court.
14. HEARD
15. The fundamental question which we have to attend is about the status of Syed Intisar Abbas Shah (PW-4) and Syed Asad Ali Shah (PW-3) that whether they were the chance witnesses or otherwise? A chance witness is the one who is not supposed to be present at a place where he claims. The chance witness in all circumstances is under obligation to show any good reason or cause when he comes forward with a plea of his presence at the relevant place and in failure of any justification, his evidence can be thrown out of consideration on this score alone. On the other hand a natural witness is the one who in ordinary course has to be there where he claims.
16. In this case as mentioned earlier occurrence had taken place at 04:00 a.m. on 25.08.2013. To appreciate the fact of chance witnesses, we have examined the statement of Intisar Abbas Shah (PW-4). Although he was a married person but he was issueless. He in clear words claimed that he used to reside in the house of deceased since long and even two years after the occurrence he stayed in the same house. There is not an iota of evidence or circumstance on record that he was having any other residence in the locality and when it is so we see no reason to disbelieve his existence with his real brother/deceased at place of occurrence.
17. Same position we have noticed about Syed Asad Ali Shah (PW-3), who, according to complainant, was residing in the same locality at a distance of about 100 feet and as per defence version at a distance of 400/500 yards from crime scene. The time of occurrence 04:00 am in the month of August obviously was the time of Fajar prayer. Syed Asad Ali Shah in his examination in chief claimed that he was going to offer the `Fajar' prayer in the mosque when he had seen the appellant and his co-accused while escaping from crime scene. In cross-examination he categorically replied that in those days the time of `Fajar Azan' according to 'Shia' sect was 03:45/04:00 am and he used to offer the 'Fakir' prayer before the Jamat of 'Sunni' sect. Therefore his presence in the street while he was moving for prayer was also quit natural.
18. Why at the time of occurrence none from other family members of the house of deceased and complainant came out? This challenge was met by the prosecution successfully. In cross- examination Syed Intisar Abbas Shah (PW-4) replied as under: - "On that night my wife, my sister, my mother and wife of Syed Lutaf Ali Shah along with her children had gone to attend the engagement ceremony of brother of wife of my brother Syed Lutaf Ali Shah at Fateh Jang. The above said engagement ceremony was scheduled to be held on 24.08.2018 in day time. It takes normally two and a half hour in reaching Fateh Jang"
19. If none of the family members were present there, how they could attract there at the time of occurrence. Defence has no legitimate right to say that after attending the ceremony family members of complainant were under obligation in all circumstances to return to their home because in the villages and even in the cities the custom prevails to reside in the same house where some celebration is being made. In this case, family of Intisar Hussain Shah had not gone to attend the ceremony of some a stranger rather it was the event of their closest relatives, therefore we find nothing abnormal in this context.
20. Much focus of learned counsel for appellant is with regard to question of identification of appellant by the witnesses at crime scene as no electric bulb was taken into possession or shown in the rough and scaled site plans (CW-1/B and PO). We have given serious considerations to this contention but we are not inclined to give any premium to prosecution on various reasons. In complaint (PE) the complainant categorically stated that electric bulb was there and it was on. It was not a new stance of complainant because even in FIR it was stated that there was an electric bulb in the courtyard. However, record shows that neither that bulb was shown in the site plans nor it was taken into possession. The statement of Tahir Muhammad Khan SI (CW-1) to appreciate this fact is very important who in cross-examination gave certain significant replies which are as under: - "I reached at the spot at about 6:45 am. There was an electric bulb installed on the southern wall of residential room shown on the middle of site plan. The light of bulb was spreadable in whole courtyard. The light of bulb was sufficient for identification of a person in that light. The above said electric bulb was switched on and I had seen the same and had not taken into possession the said electric bulb because I considered no need to take the same into possession"
21. It is important to mention here that when defence availed right of cross-examination, no attempt was made to confront Tahir Mehmood Khan SI with regard to his answers which he made on the questions by prosecution.
22. Therefore it is establish that there was an electric bulb and that was on. After information was given to the police, the process of investigation was the exclusive assignment of the Investigating Officer. He was under obligation to conduct the investigation intelligently, fairly and with high level of responsibility. In `Mst. Sughran Bibi v. The State PLD 2018 SC 595' while referring the Police Rules, 1943 it was observed by the apex Court that: - "During the investigation the investigating officer is obliged to investigate the matter from all possible angles while keeping in view all the versions of the incident brought to his notice and, as required by Rule 25.2(3) of the Police Rules, 1934 "It is the duty of an investigating officer to find out the truth of the matter, under investigation. His object shall be to discover the actual facts of the case and to arrest the real offender or offenders. He shall not commit himself prematurely to any view of the facts for or against any person"
23. If Tahir Muhammad Khan SI (Cw-1) did not perform his duty in a fair manner and omitted to collect the evidence that was in existence, no benefit can be taken by appellant for this negligence. It is a settled proposition of law that defective investigation conducted by a police officer cannot stand in the way of complainant who is seeking justice from the Court. In 'Abdul Majeed v. The State 2008 SCMR 1228' the honorable Supreme Court of Pakistan when there was an omission on the part of Investigating Officer to collect some piece of evidence, had declared it not damaging to prosecution. The relevant portion of the precedent is as under: - "If his clothes were not taken into possession by the Investigating Officer, then it reflected on his working and lethargy. It could not cause any harm to the prosecution"
24. For the sake of arguments if it is presumed that there was no electric bulb, still witnesses were in a position to identify the appellant. It was 25th of August a day of most extreme hot season in this part of the country. Occurrence took place at about 04:00 am and this fact has not been disputed before us by both the sides that it was almost dawn that means the source of natural light was there. Appellant was residing in the same area where occurrence took place that was Kharrial. Not only in the charge, but also in his examination under Section 342 Cr.P.C, appellant had given his same address of Mohallah Kharrial Tehsil Talagang District Chakwal. It is also in the statement of Syed Intisar Abbas that appellant was known to him since childhood. 'Therefore, when all were residing in one and the same Mohallah and familiar to each other since childhood, the identification by both the witnesses at the given time was not a difficult task. A similar situation was there before the Honorable Supreme Court of Pakistan in 'Muhammad Aslam alias Akrai v. The State 2019 SCMR 610" (also reported as 2009 PCr.LJ 479). In that case no source of light was shown in FIR but the same was there in site plan. Occurrence had taken place at 10:30 pm and same argument was raised there that as it was a night time and no source of light was shown in FIR so the identification was not possible. It must be kept in mind that in the case before us the source of light is shown in FIR but not indicated in site plan. The apex Court taking into considering this fact was pleased to observe as under: - "The main argument of learned counsel for appellant is that it was a night time occurrence and no source of light has been mentioned by the complainant in the FIR. It has been observed by us that in the site plan which was prepared on the instructions and pointation of the witnesses, the availability of 1000 watt rod and 200 watt bulb at points E and F respectively has been shown to be lit. Even otherwise the parties are closely related to each other and identification of a close relative even in light is not a big deal" (Emphasized)
25. Time of crime was 04:00 am and FIR was recorded at 06:45 am. Police Station was at a distance of 1.5 Kilometers. The complaint (PE) shows that it was completed at 06:30 am. It further reveals that before its completion the Investigating Officer had prepared injuries statement of deceased, his inquest report and application for postmortem examination. Before this document was finalized, the dead body was also sent for postmortem examination. It means that the Investigating Officer arrived at crime scene much earlier to 06:30 am. No doubt that Syed Lutaf Ali Shah had died at spot, but being a Muslim Intisar Abbas was having a hope about the life of his brother so he rightly preferred to take him to hospital. Syed Intisar Shah in cross-examination replied that "at that time, when we were shifting our brother to THQ Hospital, Talagang we were assuming him (deceased) to be alive".
26. When all above facts and circumstances calculated with a dynamic approach, we find that this is the case of prompt FIR.
27. How the two empties of 12 bore were found at crime scene when two fires were made by a 12 bore single barrel gun? This is said by learned counsel for appellant as according to him there had to be only one empty if gun was loaded after first fire. This is not a difficult proposition to be answered. Recovery of gun (P3) in this case is of 12 bore single barrel. Two fires mean that after first fire, gun must have been reloaded but not thereafter. This was got clarified by defence itself when questions were asked to Syed Intisar Abbas (PW-4) who answered that: - "Accused Irfan Saleem made second fire shot on my brother after ten to fifteen seconds of the first fire shot. Within the above ten to fifteen seconds I stood up from my cot. After making the second fire shot, accused Irfan Saleem loaded the gun and threatened me and then ran towards the main gate"
28. Dr. Nazir Ahmad (PW-5) had conducted the post mortem examination of Syed Lutaf Ali Shah whose dead body was brought to hospital at 05:00 am. He observed following injuries on the person of deceased: -
1. A firearm entry wound measuring 5cm x 3cm due to multiple pellets on the front and mid of left chest close to sternum 8cm obliquely from left nipple.
2. A firearm entry wound measuring 9mm x 9mm, 3cm below injury No. 01 close to sternum.
3. A firearm entry wound measuring 9mm x 9mm close to injury No.1, 4cm below left nipple (oblique).
4. Firearm entry wound measuring 9mm x 9mm below injury No. 03, below left nipple.
5. Firearm entry wound measuring 9mm x 9mm, 7cm from left sternum 3cm below left nipple.
6. Firearm entry wound due to multiple pellets measuring 2cm x 1-1/2 cm. 5 cm from lower part of sternum on the left chest.
7. Six exit wounds in right armpit (medial wall) each measuring 1.2cm x 1.2 cm. 18cm from right shoulder joint.
8. Six entry wounds 8mm x 8mm in the area 7cm x 6 cm on the outer part and upper part of right arm.
9. Six exit wounds each lcm x lcm on the inner part of right upper arm.
10. Three exit wounds 1 cm x 1 in on back and upper part of its chest pellets and cover of pellets were removed from chest and other wounds and were handed over to police.
29. According to his opinion, duration between injuries and death was immediate whereas, between death and post mortem it was 6-7 hours. The examination of dead body makes it clear that wounds were caused by 12 bore gun as these were pellet injuries. Pellets and cover of pellets were also removed from the dead body. Therefore, medical evidence is strong confirmatory evidence in this case and stands with ocular account.
30. As recovery of gun is inconsequential, not matched with the crime empties, so we do not deem proper to discuss it except that its' non-proving will not override the ocular account.
31. Motive in this case is that appellant had a suspicion that deceased was having illicit relations with his wife and for this reason appellant had divorced her. No proof of divorce by appellant to his wife has been produced during trial and similarly Investigating Officer never joined that lady in the investigation for confirmation of fact of divorce. In these circumstances, we have a firm opinion that the learned trial court wrongly believed the motive which has not been proved.
32. Appellant was arrested on 14.11.2017 after about four years and three months. During investigation, lie was declared as Proclaimed Offender and in this context, prosecution had produced Shahbaz Ali Constable (PW-8). His absconding of more than four years is a conduct which is relevant under the law. It was his duty to explain that why he avoided the process of justice for such a long period and where he remained by leaving his ordinary residence? No reasonable explanation could be furnished by him in his examination under Section 342, Cr.P.C, where he simply said that all proceedings in this regard were made while sitting in police station.
33. We, therefore, conclude that appellant has been rightly convicted by the learned Court for the charge of house trespass in order to commit offence punishable with death and Qatl-e-Amd of Lutaf Ali Shah. However, we find that it was not a case of extreme penalty of death on the reason that motive in this case has not been proved by the prosecution. In Wawab Ali v. The State 2019 SCMR 2009' the effect on sentence, because of discarding the story of motive, was declared as under: - "It is settled law that if the prosecution asserts a motive but fails to prove the same then such failure on the part of the prosecution may react against a sentence of death passed against a convict on the charge of murder and a reference in this respect may be made to the cases of Ahmad Nawaz v. The State (2011 SCMR 593), Iftikhar Mehmood and another v. Qaiser Iftikhar and others (2011 SCMR 1165), Muhammad Mumtaz v. The State and another (2012 SCMR 267), Muhammad Imran alias Asif v. The State (2013 SCMR 782), Sabir Hussain alias Sabri v. The State (2013 SCMR 1554), Zeeshan Afzal alias Shani and another v. The State and another (2013 SCMR 1602), Naveed alias Needu and others v. The State and others (2014 SCMR 1464), Muhammad Nadeem Waqas and another v. The State (2014 SCMR 1658), Muhammad Asif v. Muhammad Akhtar and others (2016 SCMR 2035) and Qaddan and others v. The State (2017 SCMR 148)"
34. In view of above, the death sentence awarded to appellant under Section 302(b), P.P.C. is converted into imprisonment for life. All other sentences are maintained. Sentences of appellant shall run concurrently and benefit of Section 382-B, Cr.P.C shall be available to him.
35. With the above modification in sentence, Criminal Appeal filed by appellant is dismissed. The death sentence is Not Confirmed and Murder Reference is answered in negative.