MUHAMMAD TARIQ NADEEM, J.---Muhammad Yar and Nobahar (appellants) along with Muhammad Mumtaz were tried by learned trial court in case FIR No. 58 dated 21-03-2016 for, offence s under sections 302, 324, 34, P.P.C., registered at Police Station Katha Saghral, for committing the murders of Muhammad Ramzan and Mst.
Ruqayya and vide judgment dated 26-05-2017 while acquitting accused Muha mmad Mumtaz, convicted and sentenced them as under:- Muhammad Yar and Nobahar , appellants Under sections 302(b), 34, P.P.C. Sentenced to death on two counts each with a further direction to pay Rs.2,00,000/- (rupees two lacs only) each as compensation under section 544-A, Code of Criminal Procedure to the legal heirs of the both the deceased and in default whereof to further undergo six months S.I. each.
Assailing the above convictions and sentences, Muhammad Yar and Nobahar (appellants) have filed instant appeal whereas the learned trial Court has sent Murder Reference for confirmation or otherwise of sentence of death awarded to them. As both these matters have stem out from the same judgment, therefore, are being decided together through this single judgment.
2. Precisely the prosecution case as unfolded in the FIR (Exh. PN) got lodged on the statement (Ex.PN/1) of Muhammad Ramzan (died later on) is that he was resident of Jassowal and a farmer . On 21.03.2016 at about 5:30 p.m., his son Muhammad Zeeshan and Shahid Iqbal were proceeding towards ground from their house and when they reached near the ground, suddenly , Muhammad Yar and Nobahar (appella nts) armed with 7mm rifles and Muhammad Mumtaz armed with 12 bore single barrel gun emerged there from western side and raised Lalkara that they would teach them a lesson regarding litigation, which they have initiated. On hearing the Lalkara, Muhammad Ramzan along with his wife Mst. Ruqayya Bibi came at the spot and when they reached near, then Muhammad Yar made a fire shot targeting the left side of abdomen of his wife Mst. Ruqayya Bibi. Nobahar fired a shot, which landed on left side of shoulder of complainant Muhammad Ramzan. Both Ruqayya and Muhammad Ramzan fell down on the ground. All the accused persons while raising Lalkaras, took to their heels. When they were shifting both the injured to Civil Hospital, Khushab, Mst. Ruqayya Bibi succumbed to the injuries on the way to hospital and complainant was brought to hospital in injured condition.
The motive behind the occurrence was a dispute over land between the parties.
3. After completion of investigation, result whereof was encapsulated in report under section 173, Code of Criminal Procedure and the same was submitted before the learned trial court. The appellants along with their acquitted co- accused were summoned by the learned Additional Sessions Judge, Khushab to face the trial. Copies of relevant documents were provided to them as required under Section 265-C, Code of Criminal Procedure and formal charge was framed against them on 28-09-2016, to which they pleaded not guilty and claimed trial.
At the conclusion of the prosecution evidence, statements of the appellants under section 342, Code of Criminal Procedure were recorded, 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) Code of Criminal Procedure nor they produced any defence evidence.
However . after conclusion of trial, the learned trial court, convicted and sentenced the appellants, as mentioned and detailed above. Hence, the supra mentioned appeal and Murder Reference.
4. Arguments heard and record perused.
5. The occurrence in this case, as per prosecution case, took place on 21.03.201 6 at 05:30 p.m. and the matter was reported to the police on 21.03.2016 at 08:15 p.m. The distance between police station and the place of occurrence is 11 kilometers. There is a delay of about two hours and forty-five minutes in reporting the crime to the police without there being any plausible explanation. Muhammad Zeeshan (PW.13) and Shahid Iqbal (PW.14) even while appearing before the learned trial Court to furnish ocular account did not utter even a single word about the above said delay . Therefore, we hold that this delay in setting the machinery of law into motion speaks volume against the veracity of prosecution version. Reliance is placed on case law titled as "Altaf Hussain v. The State"
(2019 SCMR 274 ).
6. The ocular account of the incident in issue had been provided before the learned trial Court by Muhammad Zeeshan (PW13) and Shahid Iqbal (PW14) who were son and brother of Ruqayya Bibi (since deceased). According to the story of the prosecution both were proceeding towards playground and when they reached near the ground, suddenly , Muhammad Yar and Noahbar armed with 7MM rifles and Muhammad Mumtaz armed with 12 bore single barrel gun emerged there from western side and shouted lalkara that they would teach them a lesson regarding the litigation which they have initiated. After hearing lalkara, Ruqayya Bibi and Muhammad Ramzan reached at the place of occurrence. The moment, they reached near Muhammad Zeeshan and Shahid Iqbal, suddenly Muhammad Yar made a rifle shot at Ruqayya Bibi which hit on her left side of abdomen. Nobahar appellant fired with rifle 7MM which hit on the left side of shoulder of Muhammad Ramzan. Both Ruqayya Bibi and Muhammad Ramzan fell down after receiving fire shots. According to the prosecution's own story the accused persons intend to eliminate Muhammad Zeeshan PW13 and Shahid Iqbal PW14 but no explanation has been given, why they were spared and murdered old age Ruqayya Bibi and Muhammad Ramzan. Moreover , presence of the supra mentioned PWs at the time and place of occurrence is not believable because in the site plan of the place of occurrence Exh.
PG, no play ground has been shown. They are also closely related to the deceased and are chance witnesses.
Had they been present at the place of occurrence they must have sustained injuries at the hands of accused party , because according to the prosecution's own version they were the real target even empty handed and within the range of appellants attack. The reasons given by the PWs for their presence at the spot at the relevant time does not appeal to a prudent mind. Therefore, the evidence of the said witnesses is hereby discarded. In this regard we respectfully refer the case law reported as "Mst. Sughra Begum and another v. Qaiser Pervez and others"
(2015 SCMR 1 142).
We have noted that FIR Exh. PN was lodged at 08.15 p.m. on 21.3.2016, but perusal of statement of Muhammad Ramzan complainant Exh. PN/1 shows that Kazim Hussain, SI/I.O. after getting information of occurrence reached at THQ Hospital, Khushab where he met the complainant, recorded his statement and prepared the injury statements of Ruqayya Bibi (since deceased) and Muhammad Ramzan (injured) at 07.15 a.m. on 21.3.2016, whereas, injury statement of Muhammad Ramzan Exh. PL/2 and Ruqayya Bibi Exh. PP depict that FIR number has already been mentioned. If the injury statements were prepared at 07.15 p.m. then how number of FIR could be mentioned on the supra mentioned documents, which speaks volumes regarding the prosecution story .
7. Another limb of evidence available with prosecution is statement of Muhammad Ramzan (deceased). Initially , the FIR was got registered on his statement, however , he expired on 02.04.2016. He was injured during the occurrence and his medico legal certificate Exh. PL was issued on 21.03.2016 and he passed away on 02.4.2016 at Allied Hospital, Faisalabad. The prosecution has pressed hard that, beside ocular account of Muhammad Zeeshan (PW13), Shahid Iqbal (PW14) there is overwhelming evidence in shape of Exh. PN/1 (statement of Muhammad Ramzan) which has become now a dying declaration and his statement has much credence and legal worth.
Though it is an admitted fact that dying declaration is always considered a strong piece of evidence but at the same time it has to be seen that the same rang true or not? In Exh. PA/1, it has been recorded that after the alleged occurrence, Muhammad Ramzan along with his wife Ruqayya Bibi was escorted to Civil Hospital, Khushab by their companions, i.e. Muhammad Zeeshan and Shahid Iqbal, whereas, according to the statement of Asif Sajjad, 853/C (PW4), on 21.3.2016 he joined the investigation of this case before Kazim Hussain, S.I./I.O., on the same day, I.O. prepared injury statement of injured Muhammad Ramzan (since deceased) for medical examination and he got conducted medical examination of Muhammad Ramzan, this fact belies the stance of Muhammad Ramzan (since deceased). Another intriguing aspect in this case is that in Exh.PN/1, Muhamm ad Ramzan (since deceased) involved Nobahar and Muhammad Mumtaz in the alleged occurrence, whereas, Kazim Hussain, S.I./I.O. has categorically stated in his cross examination that Nobahar and Mumtaz accused were not found involved in the case. This fact also force us to draw an inference that the statement of Muhammad Ramzan (since deceased) Exh.
PN/1 has no legal worth. The Apex Court in a case titled as "Mst. Zahida Bibi v. The State" (PLD 2006 SC 255) held that "dying declaration like the statement of an interested witness requires close scrutiny and is not to be believed merely for the reason that dying person is not expected to tell a lie". Another reference in this context may be made to the case of "Muhammad Ameer and another v . Riyat Khan and others" ( 2016 SCMR 1233 ).
8. We have also observed that according to the contents of Exh. PN/1 Nobahar made straight fire with rifle MM which hit on the left shoulder of Muhammad Ramzan (since deceased). It is pertinent to mention here that in Exh.PN/1, it is nowhere mentioned that this injury went through and through and made re-entry in the back of chest of Muhammad Ramzan (since deceased). Similarly , Dr. Khurram Shahzad (PW10) who issued initial Medico-legal Certificate of Muhammad Ramzan (since deceased) has described the injury on the person of Muhammad Ramzan (since deceased) in his examination-in-chief as under:- "A lacerated wound of fire arm injury with inverted margin, entry wound on back of upper most left arm outer aspect (1.5 x 1 cm) 4 cm from top of left shoulder . Injury No. 1 is kept under observation for X ray and surgical opinion as patient was referred to DHQ Hospital Jauharabad for better management of patie nt. Injury caused by fire arm. X ray of left shoulder and chest done. "
After going through the evidence of Dr. Khurram Shahzad (PW10) and Medico Legal Certificate of Muhammad Ramzan (since deceased) Exh. PL, it clearly depicts that there was no re-entry injury on the body of Muhammad Ramzan at the time of his initial medical examination. Furthermore, Dr. Maqbool Hussain (PW1) has admitted in his cross examination that it is correct that death was caused by septicemia.
9. There is another astonishing aspect of the matter which raised an eye brow that there is glaring contradiction between ocular and medical account. As per site plan of the place of occurrence (Ex. PG), point No. 1 is the place where the deceased Ruqayya Bibi (since deceased) was alleged to be present and sustained firearm injury at the hands of Muhammad Yar appellant, wher eas, point No. 3 is the place from where Muhammad Yar appellant made fire shot upon Ruqayya Bibi. The distance from point No. 1 to point No. 3 has been mentioned as 15 feet, whereas, Dr. Atia Gul, WMO, (PW12) had noted blackening on injury No. 1 on the body of Ruqayya Bibi (since deceased), which is allegedly attributed to Muhammad Yar appellant, therefore, ocular account furnished by the eye-witness is not synchronized with the medical evidence which clearly contradicts the statements of the eye-witness. It is a settled law that blackening appears on the dead body in case the deceased has received injuries from a distance of 4 feet, according to medical jurisprudenc e by Modi. Reliance is placed upon case laws titled as "Barkat Ali v.
Muhammad Asif and others" (2007 SCMR 1812 ) and "Abdul Jabbar and another v. The State" (2019 SCMR 129).
10. The learned D.P.G. assisted by learned counsel for the complainant has laid much emphasis on the point that Muhammad Yar appellant has admitted the occurrence to some extent in his statement recorded under section 342, Cr.P.C. In reply to question No. 13, "why this case against you and why the PWs deposed against you" he replied as under:- "I have been involved in the case withou t justification I have not committed murder of deceased intentionally and the same was accidently"
The above said argument has no value in the eye of law because the law is quite settled by now that, if the prosecution fails to prove its case against an accused person as in present case then the accused person is to be acquitted even if he had taken a plea and had thereby admitted killing the deceas ed. The law is equally settled that the statement of an accused person recorded under section 342, Cr.P.0 is to be accepted or rejected in its entirety . Reliance is placed on case titled "Azhar lqbal v . The State" ( 2013 SCMR 383 ).
11. As per prosecution case, the motive behind the occurrence was that, there was land dispute between the parties but the prosecution had failed to produce any documentary proof in this respect, similarly , have not produced independent evidence in this regard. It is cardinal, principle of 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 on the charge of murder as observed by the Hon'ble Supreme Court of Pakistan in the cases reported as "Qaddan and others v. The State" (2017 SCMR 148), "Qurban Hussain v. The State" (2017 SCMR 880) and "Haq Nawaz v . The State" ( 2018 SCMR 21 ).
12. So far as the alleged recovery of rifle 7MM at the instance of Muhammad Yar (appellant), is concerned, the same is inconsequential because report of PFSA qua the rifle is only to the extent of mechanical operating condition, as no crime empty was sent for the comparison, for the reason the same has, no value in the eye of law.
Reliance is placed on the case laws titled as "Akbar Ali and others v. The State and others" (2021 SCMR 104) and "Muhammad Saleem v . The State" ( 2021 MLD 183 ).
13. We have considered all the pros and cons and come to irresistible conclusion that the prosecution has failed to prove its case against Muhammad Yar and Nobahar appellants beyond the shadow of doubt, therefore, we accept instant appeal filed by appellants, set aside their convictions and sentences recorded by the learned Additional Sessions Judge, Khushab vide judgment dated 26.05.2017 and acquit them of the charge by extending them the benefit of doubt. The appellants are in jail, they be released from the jail forthwith if not required in any other case and Murder Reference is answered in the NEGA TIVE and the sentences of death of Muhammad Yar and Nobahar appellants are NOT CONFIRMED .