MUHAMMAD TARIQ NADEFM, J. Shahbaz alias Gillu appellant was tried by the learned trial court in case FIR No. 538/2012 dated 01.11.2012 offences under sections 302, 148, 149, P.P.C. registered at Police Station Rodala Road, Jaranwala, District Faisalabad and at the conclusion of trial vide judgment dated 29-06-2016, while acquitting Nawaz Ali, Saleem, Talib and Lal Shameer, convicted and sentenced the appellant Shahbaz alias Gillu under section 302(b), P.P.C. and sentenced him to life imprisonment for the murder of Ameer Ali (deceased) and to pay compensation of Rs. 5,00,000/- under section 544-A, Cr.P.C. to the legal heirs of deceased and in default thereof to further undergo six months' S.I. The benefit of section 382-B, Cr.P.C. was also extended to him.
The appellant has filed the titled appeal against his convictions and sentences. It is pertinent to mention here that trial of the appellant was conducted in premises of Central Jail, Faisalabad with permission of Government of the Punjab, Home Department, Lahore vide Order No. SO (Judl-II) 5- 7/2015 dated 21.09.2015 as Shahbaz alias Gillu was condemned prisoner.
2. The facts of the case stated by Pervaiz Akhtar, complainant (PW.6) in his complaint (Ex.PG) are that on 31.10.2012 at about 09.50 p.m. (night time) he along with brother Javaid and uncle Bashir Ahmad were watching T.V. in their Baithak while father of the complainant Ameer Ali (deceased) was lying on a cot. The appellant and his co-accused in furtherance of their common object armed with firearm weapons came there. Lal Shameer co-accused (since acquitted) armed with Kalashnikov, Shahbaz alias Gillu appellant was armed with Kalashnikov, Nawaz Ali co-accused (since acquitted) was armed with double barrel Gun, Saleem co-accused (since acquitted) armed with Kalashnikovi, Talib with Repeater (since acquitted), Khalid with Kalashnikov (since acquitted) and three unknown other accused armed with Repeaters. The PWs. identified them in the light of electric bulb. Talib (acquitted accused) raised lalkara that the complainant party be taught a lesson for not entering into compromise with the accused upon which Lal Shameer (acquitted accused) made straight fire shot with his Kalashnikov to Ameer Ali which landed on right side of buttock of Ameer Ali, upon receipt of this injury and pain Ameer Ali tried to stand with help of cot then the appellant made fire shot with his Kalashnikov hitting him on the lower side of his left flank.
Thereafter the appellant and his co-accused made recklessly repeated fire shots which hit on different parts of Baithak'. The prosecution witnesses and the complainant saved their lives by hiding themselves behind the walls and due to fear of fire shots they did not interfere in the incident. Thereafter Ameer Ali was shifted to hospital, where, he breathed his last.
The motive behind the occurrence was stated that the appellant and his co-accused wanted to compel complainant party for compromise in murder case of complainant's cousin which was registered against Lal Shameer (acquitted accused) and the present appellant and on their denial the appellant and his co-accused wanted to kill them so that the murder case of complainant's cousin may not be pursued.
3. Arguments heard and record perused.
4. As per contents of FIR, the alleged incident qua murder of Ameer Ali real father of the complainant took place on 31.10.2012 at 09:50 p.m. and the matter was reported to the police on 01.11.2012 at 12:30 a.m. i.e. about 2 hours and 40 minutes after the incident. The distance between police station and the place of occurrence is nine kilometers. No plausible explanation for the aforesaid delay has been brought on record. Even while appearing before the learned trial Court the prosecution witnesses did not utter even a single word about the above said delay. Therefore, I 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 laws titled as "Mst. Asia Bibi v. The State and others" (PLD 2019 SC 64), Muhammad Rafique v. The State (2014 SCMR 1698), "Altaf Hussain v.
The State" (2019 SCMR 274). On the other hand postmortem examination on the dead body of Ameer Ali deceased was conducted on the following day at 07.05 a.m., and as per opinion of Dr. Qurban Ali (PW1) the time between the death and post-mortem examination was 8 to 9 hours. So it was a case of delayed postortem, which casts serious doubt. It has been held repeatedly by the Hon'ble Supreme Court of Pakistan that such noticeable delay is normally occasioned due to incomplete police papers necessary to be handed over to the Medical Officer to conduct the postmortem examination on dead body of the deceased which happens only when the Complainant and police remain busy in consultation and preliminary inquiry regarding the culprits in such cases of unwitnessed occurrence. Wisdom is derived from the judgments Sufyan Nawaz and another v. The State and others (2020 SCMR 192), Irshad Ahmad v. The State (2011 SCMR 1190). Similar view was also taken by the Hon'ble Supreme Court of Pakistan in the case of Muhammad Ashraf v. The State (2012 SCMR 419) and Khalid alias Khalidi and 2 others v. The State (2012 SCMR 327).
5. The ocular account of the incident in issue had been furnished by Pervaiz Akhtar complainant (PW6) and Bashir Ahmad (PW7) inasmuch as they are son and brother of the deceased, respectively. They were residents of the same house where the deceased was residing. Their evidence is not worthy of reliance on the ground that they have made false statement against the appellant in order to widen the net because there was only one fire shot injury on the person of Ameer Ali (deceased). Both the FWs with mala fide intention has ascribed the injury No. 1-B to the appellant which is a exit wound. This fact indicates that they were not present at the time and place of occurrence. Supra mentioned facts clearly demonstrate that both the PWs are not truthful witnesses, thus, their presence at the place of occurrence is highly doubtful and not believable. All the above facts mentioned op-cite clearly show that Pervaiz Akhtar (PW6) and Bashir Ahmad (PW7) are inimical towards appellant due to the previous criminal litigation and are closely related to the deceased as Pervaiz Akhtar (PW6) is son, whereas, Bashir Ahmad (PW7) is brother of Ameer Ali deceased. Hence, their evidence is discarded.
6. It is also a case of prosecution that accused persons intend to murder all of them. According to the narration of FIR (Exh. PG/2) complainant along with his brother Javaed Iqbal paternal uncle Bashir Ahmad (PW7) and Ameer Ali (deceased) was present in his drawing room (Baithak) whereupon appellant along with his five nominated co-accused armed with deadly weapons and three unknown co-accused attacked upon them. As per possession memo Exh. PE, investigating officer secured four crime empties of Gun .12 bore and 85 cartridges of Kalashnikov from the place of occurrence. More so, according to scaled site plan Exh. PF the eye-witnesses were present at point No. 5 which was more closer to the assailants than the Ameer Ali (deceased). They all were completely at the mercy of assailants but except the Ameer Ali (deceased) none other had received any scratch, meaning thereby the supra mentioned PWs were not present at the place of occurrence at the relevant time. I fortify my view from the dictum laid down in the case titled as Mst. Rukhsana and others v. Sajjad and others (2017 SCMR 596).
7. I have observed that the ocular account is not synchronized with the medical evidence.
According to prosecution story the appellant made Kalashnikov fire shot upon Ameer Ali (deceased) which hit upon him on below side of his left flank. While appearing before the learned trial court Dr. Qurban Ali MO (PW1) has described two injuries on the body of Ameer Ali (deceased) which are reproduced as under:- 1-A A lacerated firearm entry wound 3/4 x 3/4 cm on right lateral of lower abdomen, 12 cm from pubic tubercle. (Entry wound).
1-B A lacerated firearm exit wound 1 x 1 cm on left side of lateral to abdomen 9 cm from left sided pubic tubercle. (Exit wound).
As per prosecution story injury No. 1-B is attributed to the appellant which is an exit wound. This fact is also confirmed from the narration of post mortem report of Ameer Ali deceased (Ex. PA) and pictorial diagram Exh. PA/1.
8. Although it has been narrated by Pervaiz Akhtar (PW6) and Bashir Ahmad (PW7) that they saw the appellant in the light of bulb but the Investigating Officer has not taken into possession any source of light. The prosecution has failed to establish the fact of such availability of source of light and in absence of their inability to do so, I cannot presume the existence of such a light source.
Reliance is placed on the case law titled as Gulfam and another v. The State (2017 SCMR 1189).
9. It is significant to point out here that co-accused of the appellant namely Lal Shameer was acquitted of the charge by the learned trial court while extending benefit of doubt to him. I have noted that according to the prosecution story Lal Shameer was attributed fatal fire shot at the body of Ameer Ali (deceased) but he has been acquitted by the learned trial court from the charge through the impugned judgment, whereas, according to the prosecution story role attributed to the appellant is that he caused fire shot of Kalashnikov on the body of Ameer Ali deceased which landed on the left side of lateral to abdomen and that is an exit wound as per opinion of Dr. Qurban Ali (PW1), as well as, post mortem report of the deceased (Exh. PA), as such, the eye-witnesses produced by the prosecution were capable of falsehood. No appeal either by the State or by the complainant against the acquittal of supra mentioned co-accused namely Lal Shameer has been filed, as confirmed by the learned Deputy Prosecutor General. It is a trite Principle law and justice that once prosecution witnesses are disbelieved with respect to a co- accused then, they cannot be relied upon with regard to the other accused unless they are corroborated by corroboratory evidence coming from independent source and shall be unimpeachable in. nature but that is not available in the present case.
Reliance is placed upon the case laws tilted as "Liaqat Ali and others v. The State" (2021 SCMR 455) and "Tariq Mehmood v. The State" (2021 SCMR 471).
10. The motive behind the occurrence was stated that the appellant and his co-accused wanted to compel complainant party for compromise in murder case of complainant's cousin which was registered against Lal Shameer (acquitted accused) and the present appellant and on their denial the appellant and his co-accused wanted to kill them so that the murder case of complainant's cousin may not be persued. I have noted that there is no documentary evidence in support of the motive part. So I have no hesitation in holding that the prosecution has failed to prove the motive setup by it. A reference in this respect may be made to the case of Noor Muhammad v. The State (2010 SCMR 97).
11. The recovery of Kalashnikov at the pointation of appellant is of no avail to the prosecution because there is no report of PFSA with respect to Kalashnikov (P-4) taken into possession vide recovery memo (Exh. PK). Even otherwise, the recovery of weapon of offence is only a corroborative piece of evidence, and it settled proposition of law that conviction cannot be based merely on the corroborative piece of evidence. Reliance is placed upon the case titled as Akbar Ali and others v.
The State and others (2021 SCMR 104), Naved Asghar and 2 others v. The State (PLD 2021 SC 600) and Sardar Bibi and another v. Munir Ahmad and others (2017 SCMR 344).
12. Much stress has been laid over absconscion of the appellant after the occurrence in this case and it has been contended that after the incident the appellant remained fugitive from law for a considerable period, which is a strong corroborative piece of evidence against him, but even the said contention is not much helpful to the prosecution. I may observe here that mere absconscion of accused is not the conclusive proof of his guilt and it is only a suspicious circumstance against the accused that he was under the guilty conscious. However, suspicions after all are suspicions and the same cannot be given the place of proof and the value of absconscion always depends on the facts of each case. The absconscion of the accused may be consistent with his guilt or innocence, which is to be decided keeping in view overall facts of the case. In Muhammad Khan and another v. The State (1999 SCMR 1220), it has been held by the Hon'ble Supreme Court of Pakistan that the absconscion itself can never remedy the defects in the prosecution case as neither it is necessarily indicative of guilt, nor is ever sufficient by itself to prove the guilt.
Similar view was also taken in the cases reported as Liaqat Hussain and others v. Falak Sher and others (2003 SCMR 611), Rohtas Khan v. The State (2010 SCMR 566) and Muhammad Sadiq v. The State (2017 SCMR 144).
In view of the combined study of the entire evidence and careful appraisal of the same I have come to an inescapable conclusion that there is no corroboratory evidence of any legal worth to give the story set up in the FIR any credence and strength rather the prosecution case is full of improbabilities, legal and factual infirmities of fatal nature and is pregnant with bristling doubts of grave nature. Thus, the prosecution has miserably failed to connect the neck of the appellant with the crime in any manner whatsoever.
13. The responsibility to prove its case beyond any shadow of reasonable doubt squarely lies with the prosecution and if it fails to successfully discharge it, the only result can be the extension of benefit of doubt to the accused person and it is, by now, established proposition of law that multiple doubts are not required in this regard, even a single circumstance creating doubt in a prudent mind is sufficient. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. The Hon'ble Supreme Court of Pakistan in the case of Muhammad Mansha v. The State (2018 SCMR 772) at para No.4, observed regarding the chance witnesses as under:- "4... Needles to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better than ten guilty persons be acquitted rather than one innocent person be convicted. Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad Akram v. The State (2009 SCMR 230) and Muhammad Zaman v. The State (2014 SCMR 749)..."
Similar view was taken in the case of Muhammad Imran v. The State (2020 SCMR 857). Relevant part of the said judgement at Para No.5 reads as under:- "......It is by now well settled that benefit of a single circumstance, deducible from the record, intriguing upon the integrity of prosecution case, is to be extended to the accused without reservation; the case is fraught with many. It would be unsafe to maintain the conviction...."
14. Resume of the above said discussion, I am of the considered view that the prosecution has failed to prove its case against Shahbaz alias Gillu appellant beyond any shadow of doubt, therefore, I accept Criminal Appeal No. 560-J of 2016 filed by Shahbaz alias Gillu appellant, set aside his convictions and sentences recorded by the learned Additional Sessions Judge, Jaranwala/Inside Central Jail, Faisalabad vide judgment dated 29.06.2016 and acquit him of the charge by extending him the benefit of doubt. The appellant is in custody, he be released from the jail forthwith if not required in any other case.