CH. ABDUL AZIZ, J. Wasi Haider (appellant) along with seven others, namely, Irfan Haider, Taj Muhammad Khan, Feezan Haider, Aitazaz-ul-Hassan, Ahmad Abbas, Wajahat Ali and Atif Ali was tried by learned Additional Sessions Judge, Chakwal in a private complaint titled as "Babar Munir v. Wasi Haider and 7 others" for the offence under sections 302, 148, 149, 449, P.P.C. which has arisen out of FIR No.125/2017 dated 18.10.2017 registered under sections 302 and 34, P.P.C. at Police Station Neela, District Chakwal. Trial court vide judgment dated 05.04.2019 while acquitting others proceeded to convict and sentence Wasi Haider (appellant) in the following terms:- "Under section 302(b), P.P.C. to suffer death sentence. He was also directed to pay fine of Rs.200,000/- under section 544-A, Cr.P.C. to the legal heirs of the deceased, in default whereof to further undergo six months' S.I."
Challenging his conviction and sentence Wasi Haider (appellant) filed Criminal Appeal No.281 of 2019, whereas trial court sent reference under section 374, Cr.P.C. which was numbered as Murder Reference No.29 of 2019, for the confirmation or otherwise of death sentence awarded to him. Both the matters are being disposed of through this single judgment.
2. Succinctly stated the facts of the prosecution case as disclosed by Babar Munir (PW.2) in FIR (Exh.CW4/1) are to the effect that he does a private job at Islamabad and daily returns home; that on the night of 17.10.2017 he along with his parents, wife and children was present in the house; that after hearing noise outside the street, he went to the door and saw Taj Muhammad Khan, Wasi Haider both armed with pistols, Irfan Haider armed with Kalashnikov, Faizan Haider, Hussain, Ahmad Abbas, Wajahat and Atif armed with clubs standing in the street; that accused Taj Muhammad Khan asked the complainant to bring out his uncle Muhammad Rafiq, as he would teach him a lesson for demanding to vacate his shop; that Taj Muhammad further exhorted his companions to kill Muhammad Rafiq and the person who would come in his help; that at about 10:15 p.m. his uncle Muhammad Rafiq and Khalid Mahmood came there, upon which accused persons tried to catch Muhammad Rafiq but he went to the house of the complainant; that Taj Muhammad also exhorted his accomplice Wasi Haider to fire at him; that Wasi Haider who was duly armed with pistol forcibly entered the house of the complainant; that Ameer Bano, mother of the complainant, came in between Wasi Haider and Muhammad Rafique and requested the accused not to commit aggression; that Wasi Haider made a straight fire at the chest of Ameer Bano due to which she fell on the ground; that Wasi Haider, Taj Muhammad Khan and Irfan Haider while making aerial firing fled away from the spot; that Ameer Bano succumbed to the injuries on the way to the hospital. Motive behind the occurrence statedly was the shop dispute, which belonged to Muhammad Rafiq but Taj Muhammad Khan had taken its forcible and illegal possession.
3. After the receipt of information about the incident, Faisal Manzoor Inspector (CW.5) proceeded to the place of occurrence on the night falling in between 17/18.10.2017, from where he collected 4- empties of .12 bore (P4/1-4). On 18.10.2017 he handed over the sealed parcel of empties to Mukhtar Ahmad S.I, who took the same into possession through recovery memo Exh.CW5/1.
On 18.10.2017 Mukhtar Ahmad SI (CW.7) visited DHQ Hospital Chakwal, where he recorded statement (Exh.PB) of Babar Munir (PW.2). After inspecting the dead body, he prepared inquest report (Exh.CW7-2) and got conducted postmortem examination of Ameer Bano. He then went to the place of occurrence and prepared rough site plan (Exh.CW7/5) of the spot as well as got prepared scaled site plan (Exh.CW2/1-2) through Muhammad Munir Draftsman. On 18.11.2017 he arrested Wasi Haider (appellant), who on 27.11.2017 during interrogation made disclosure and got recovered carbine .12 bore (P1) which was taken into possession through recovery memo Exh.PA. He recorded statements of the witnesses under section 161, Cr.P.C.
Khalid Mehmood SI (CW.8) under the DPO's order dated 29.12.2017 also conducted investigation and drew conclusion that Wasi Haider (appellant) and Irfan Haider were found fully involved in this case, whereas declaration of innocence of the remaining accused was pronounced by him.
4. Being dissatisfied with the mode of investigation, Babar Munir PW.2) filed private complaint (Exh.PC) upon which the trial was held. Prosecution in order to prove its case against the appellant and his co-accused produced Babar Munk (PW.2) and Muhammad Rafique Naseem (PW.3), who narrated the ocular account. Trial court also examined eight CWs, which include Dr. Mariam Fayyaz WMO (CW.3) who furnished the medical evidence and Faisal Manzoor Inspector (CW.5), Mukhtar Ahmad S.I (CW.7) and Khalid Mehmood SI (CW.8) who investigated the case. Remaining CWs more or less were formal in nature.
5. Dr. Mariam Fayyaz (CW.3) on 17.10.2017 at about 3:00 a.m. conducted autopsy of Ameer Bano and noted the following injury:-
(1) A firearm wound with blackening on 2 x 2 cm around the wound margins with mild clotted blood from wound base. Size of wound 1 x 1 cm with inverted margins present in left 5th intercostals space in mid axillary lying 8 cm below nipple. Probable it is an entry wound.
According to the doctor, the probable cause of death in this case was injury No.1 which was resulted through firearm and the same damaged heart and lungs. The doctor further opined that the afore-said injury was ante mortem in nature and led to death.
6. After conclusion of prosecution evidence, the learned trial court examined Wasi Haider (appellant) under section 342, Cr.P.C. who refuted the allegations levelled against him and pleaded his innocence. The appellant did not appear under section 340(2), Cr.P.C, however, produced some documents in his defence. On the conclusion of trial, the appellant was convicted and sentenced as afore-sated, hence the instant criminal appeal and murder reference.
7. It is contended by learned counsel for the appellant that FIR in this case was registered with extreme delay but through tampering of record it was made to look as if earlier registered; that the incident in question took place in the dark hours of night when both parties came face to face with each other; that during trial though it was essentially required for prosecution to prove the source of light so as to exclude all possibilities of false attribution of injuries but prosecution failed in this regard; that during trial, the eye-witnesses contradicted each other on all material points and even otherwise their deposition is in conflict with the medical evidence; that the eye-witnesses also made material improvements in their court statements which rendered them unworthy of reliance; that the motive also remained unproved as no evidence in its support was led and that though prosecution failed to prove its case against the appellant beyond any shadow of doubt but even then the judgment of conviction was passed. With these submissions, learned counsel urged that conviction awarded to the appellant be set-aside.
8. On the other hand, learned law officer assisted by learned counsel for the complainant vehemently argued that the case is arising out of a promptly lodged FIR wherein appellant is the only person ascribed the role of inflicting fatal injury to the deceased; that the incident occurred within the four-walls of house belonging to the complainant, thus the presence of eye-witnesses cannot be doubted; that even otherwise, the narrators of ocular account had no personal enmity with the appellant for falsely implicating him in the case; that the ocular account is in absolute conformity with the medical evidence thus explicit reliance can be placed thereupon; that duly proved motive is another factor which points towards the guilt of appellant and that since the prosecution successfully proved its case against the appellant hence, conviction awarded to him be upheld.
9. Arguments heard. Record perused.
10. It gleans from record that the case is arising out of an occurrence having taken place on the night of 17.10.2017 during which a household lady, Ameer Bano met homicidal death after the receipt of a solitary firearm injury on her chest. As many as eight persons. were indicted in the case with the allegation of having participated in the crime and out of them only one Wasi Haider (appellant) was handed down guilty verdict. In all cases of homicide, the primary question pertains to the afflux of time with which the information of crime is furnished to police and case in hand is no exception. From record, it divulges that the incident occurred at 10:15 p.m. in a vicinity situated only 5-miles away from police station Neela, District Chakwal and its detail was imparted to police through the oral statement (Exh.PB) of Babar Munir (PW.2) made before Mukhtar Ahmed SI (CW.7) at about 2:30 a.m. upon his arrival to DHQ Hospital Chakwal, which later formed basis of FIR (Exh.
CW4/1).
11. From the facts mentioned above, apparently it follows that the police was intimated about the occurrence within 4-hours and this time span does not persuade us to hold that the case is arising out of some delayed FIR. We are not oblivious of the fact that purity of criminal investigation has been polluted due to prevalent menace of tampering and fabrication of record through which oftenly even a delayed FIR is made to look as if promptly registered. We are tempted to observe here that there are certain documents, which if eloquently perused can lift veil from the police tampering, and inquest report is one of them. The criminal law with a design to plug the possibility of record tampering maintains a system of check and balance, whereby in every murder case the police officer is required to draw inquest report in accordance with the provisions of Rule 25.35 of Police Rules, 1934 immediately after the preliminary investigation. The report so drawn by police officer is to be placed before Medical Officer prior to autopsy and doctor is incumbently required to sign each of its page. For reference sake, Rule 25.35 of Police Rules, 1934 is being reproduced hereunder on account of its importance on the subject:- "25.35. The Inquest Report.---(1) When the investigation has been completed the investigating officer shall draw up a report in duplicate by the carbon copying process, in Form 25.35 (1) A, B or C according as the deceased appears to have died:- A from natural causes, B by violence.
C by poisoning.
(2) Such report shall state the apparent cause of death, give a description of any mark or marks of violence which may be found on the body and describe the manner in which and the weapon or instrument with which such marks appear to have been inflicted.
(3) The report shall be signed by the police officer conducting the investigation and by so many of the persons assisting in the investigation as concur therein and shall be forwarded without delay through the Superintendent to the District Magistrate or, if the District Magistrate has so directed, to the Sub-Divisional Magistrate.
(4) The following documents shall form part of such report:-
(a) The plan of the scene of death,
(b) The inventory of clothing, etc.
(c) A list of the articles on and with the body, if the body is sent for medical examination.
(d) A list of articles sent for medical examination, if any.
(5) In cases of death by hanging, the report shall give particulars as to the height and sufficiency of the support and the nature of the thing use to bear the weight of the body.
In drowning cases the depth of the water shall be stated.
(6) The carbon copy of such report shall be filed in the police station register No.VI.
(7) A copy of all reports relating to deaths caused by railway; accidents shall, when made by a police officer other than a railway police officer, be forwarded to the Assistant Inspector General, Government Railway Police."
A wade through the afore-mentioned Rule unfolds that in a homicide case, the Investigating Officer is to draw a report in duplicate and in prescribed format mentioning therein the apparent cause of death, marks of violence observed on the corpse, the weapon with which these appear to have been inflicted and the brief facts of the case gathered from the witnesses. The corpse is to be forwarded to Medical Officer for autopsy along with a report prescribed to be prepared in the format mentioned in 25.39 of Police Rules, 1934. We are persuaded to reiterate here that the purpose of providing inquest report to doctor before the postmortem examination is designed at countering the possibility of tampering with police record. Even otherwise, it is well entrenched principle of law that if statute or rule framed therein provides a thing to be done in a particular manner it should be done in that manner alone. Such rule emanates from maxim "a communi observantia non est recedendum." It goes without saying that impartial, defective and dishonest investigation paves way to false implication of an innocent person and gives vent to injustice.
The circumspective scrutiny of record unfortunately reveals that the case in hand is also riddled with the evil of record tampering. The inquest report (Exh.CW3-4), as per record, though was provided to medical officer before autopsy but its page meant for incorporating brief facts of case does not contain the tale of incident mentioned in FIR (Exh.CW4/1). We have anxiously noted that on the relevant page of inquest report, neither the name of any perpetrator is- mentioned nor the manner in which the crime occurred is stated even tentatively. This omission gives a strong clue that the FIR was not registered till the holding of postmortem examination. We feel a pressing need to reiterate here that murder incident took place at 10:15 p.m., the complaint (Exh.PB) was drafted at 2:30 a.m. whereas autopsy was conducted at 3:00 a.m. The question arises that if at all before holding of autopsy the complaint (Exh.PB) was complete in all respects then why its contents were not mentioned in the column of inquest report meant for the brief facts. A conclusion is inevitable that till holding of autopsy the complaint (Exh.PB) was still in process of preparation apparently through consultation and deliberation, etc. On the point under consideration, we will like to reproduce hereunder an observation of Hon'ble apex Court in case reported as Mst. Yasmeen v.
Javed and another (2020 SCMR 505):- "In addition to the said findings, it has been observed by us that the occurrence in this case, as per prosecution, took place on 19.04.2005 at 10:00 p.m. The matter was reported to police in the intervening night of 19/20.02.2005 at 1.00 a.m. (night). The post-mortem examination on the dead body of Mst. Naheeda (deceased) was conducted by Dr. Faiqa Elahi (PW.7) on 20.02.2005 at 8.50 a.m. Even if delaying conducting the postmortem examination on the dead body of deceased, in the circumstances of the case, is ignored, the fact remains that in the relevant column of inquest report "brief history of crime", nothing is mentioned regarding facts of the case despite the claim of prosecution that matter was reported to police within three hours of the occurrence i.e. in the intervening night of 19/20.02.2005 at 1.00 a.m. (night). This circumstance alone casts serious doubts about the veracity of prosecution case against the respondents and the claim of eye-witnesses Mst. Yasmeen (PW.5) and Mst.Kabalo (PW.6) to have witnessed the occurrence".
12. Before dilating upon the ocular account, we feel essential to mention here that in a case of homicide having occurred in the dark hours of night, it is obligatory upon the prosecution to prove the source of light so as to exclude all hypothesis of false implication and incorrect attribution of role to an accused. The philosophy of criminal jurisprudence for awarding punishment mainly rests upon the principle that every perpetrator is to be convicted with quantum of sentence proportionate to the overt act performed by him. The case of an accused ascribed the role of inflicting fatal injury to the deceased cannot be equated with the accused attributed simple participation in the crime. The absence of light at the crime scene gives rise to the possibilities of false implication through mistaken identification and incorrect attribution of role to an accused. For this reason, emphasis is laid by the courts that in cases of night occurrences, the prosecution must prove the source of light. We are not oblivious of the fact that this is not a statutory requirement to prove the source of light, rather is a rule of caution with object to administer justice beyond shred of all uncertainties.
In the instant case, the incident occurred at about 10:15 p.m. and Ameer Bano (deceased) suffered bullet injury while standing in the courtyard of the house, whereas the appellant was located in the street. At the eventful time, there was no light in the neighbourhood due to electricity load- shedding and this fact is even admitted by Muhammad Rafique Naseem (PW.3). The eye- witnesses realized the importance of light and they accordingly claimed to have captured the visuals of incident in the light of electricity bulb installed at UBL Bank, situated in the same street.
The frailty of such claim of eye-witnesses was exposed from the statement of Faisal Manzoor Inspector (CW.5) and Mukhtar Ahmad SI (CW.7) who described the intervening distance between the UBL Bank and crime scene as 65 to 68 paces. Even otherwise, this source of light -was introduced by both the eye-witnesses through dishonest improvements made by them in their court statements. For reference sake, an extract from the cross-examination of Babar Munir (PW.2) is being mentioned hereunder:- "I also mentioned that during the time of occurrence, lights of UBL Bank situated near the place of occurrence in the same lane in the street, were on, confronted with Ex.PB, where it is not recorded at all."
The statement of Muhammad Munir draftsman (CW.2) can safely be termed as final nail in the coffin of prosecution case, so far as it relates to the availability of light at the spot. Muhammad Munir (CW.2) noted no point in site plan (Exh.CW2-1) to pinpoint the availability of light around the crime scene. We deem it appropriate to mention here that as per law on the subject, any fact which is introduced by a witness through the tool of dishonest improvement, it is to be discarded from consideration and no reliance can be placed thereupon. Similarly, a witness who makes improvement in his court statement, in fact compromises his own integrity rendering him not worthy of any credence. If any reference in this context is needed that can be made to the case of Muhammad Arif v. The State (2019 SCMR 631) wherein the Hon'ble Supreme Court of Pakistan held as under:- "It is well established by now that when a witness improves his statement and moment it is observed that the said improvement was made dishonestly to strengthen the prosecution, such portion of his statement is to be discarded out of consideration. Having observed the improvements in the statements of both the witnesses of ocular account, we hold that it is not safe to rely on their testimony to maintain conviction and sentence of Muhammad Arif (appellant) on a capital charge."
As mentioned above, no source of light is identified in the site plan (Exh.CW2-1) and the question arises that eye-witnesses can be discredited due to such omission or not. As a rule, an eye-witness cannot be discredited based on the contents of scaled site plan but if it is proved that the site plan was prepared under his directions, it attains credibility and can be used by the court for ascertaining the existence or non-existence of any aspect/fact. In this regard reference can be made to the case reported as Imran Ashraf and 7 others v. The State (2001 SCMR 424) wherefrom a relevant observation is mentioned hereunder:- "We are conscious of the fact that as far as site plan is concerned it has no evidentiary value but its importance can also not be denied to determine the location of the incident as well as the position of the witnesses particularly in those matters where presence or otherwise of the witnesses has been challenged. Reference may be made to 1997 SCMR 89. On the question of non-preparation of a site plan at the pointation of a witness this Court has held in the case of Gul Mir v. The State (PLD 1980 SC 185) that if it was not prepared on the pointation of a witness it will loose its evidentiary value."
We have keenly observed that Baber Munir (PW.2) admitted about the site plan to have been prepared on his pointation and in this regard an extract from his cross-examination is highlighted below:- "It is correct that site plan was prepared upon our pointation and direction by I.O through draftsman."
As a necessary consequence, we are leaned to hold that prosecution badly failed to satisfactorily explain the source from which light was emanating so as to provide an opportunity to the witnesses to see all the necessary details of the occurrence. Such omission inexorably damaged the case of prosecution to great extent. Reliance in this regard can be placed upon the case reported as Usman alias Kaloo v. The State (2017 SCMR 622) wherein the Hon'ble Supreme Court of Pakistan observed as under:- "The occurrence in issue had taken place outside the house of the deceased and in the absence of any source of light at the spot the question regarding identification of the assailant had assumed pivotal importance If any further reference on the point is needed that can be made to the cases reported as Mst. Yasmeen v. Javed and another (2020 SCMR 505), Zahir Yousaf and another v.
The State and another (2017 SCMR 2002) and Azhar Mehmood and others v. The State (2017 SCMR 135).
13. The credibility of a witness finds its root in the intrinsic worth of his deposition. An interested witness on occasions can be believed, if found to be truthful and the deposition of a non-partisan witness can meet the fate of rejection if it is found to be false or does not fit into the attending circumstances including the medical evidence. The credibility of ocular account depends upon the credibility of a witness and there are multiple factors which affect its legal worth and making of dishonest improvement is one of them. In this case, the eye-witnesses made multiple dishonest improvements in their court statements and thereby introduced material facts like the source of light, the actual time of occurrence, the weapon with which appellant was armed, etc. Since we have pondered in-depth upon the source of light in the preceding paragraph hence, feel no compulsion to recapitulate it as it will be an exercise in vain. As regards, time of incident it was found not mentioned in the cursory statements (Exh.PB and Exh.DB) of Babar Munir and Muhammad Rafique (PW.2 and PW.3) respectively. The most important fact introduced by both the witnesses is the weapon with which the appellant was equipped at the eventful time. During trial, both the eye-witnesses deposed that Wasi Haider (appellant) was armed with carbine but such description of weapon was neither mentioned in FIR (Exh.CW4/1) nor in the private complaint (Exh.PA). The improvement regarding the description of weapon was with a specific purpose apparently to bring ocular account in conformity with the police investigation as during spot inspection four empty shells of SG Cartridge of .12 caliber were secured through memo (Exh.PB).
Unfortunately, the dishonest improvement pertaining to the nature of weapon further damaged the prosecution case as it fetched a conflict between medical and ocular evidence. In this regard, it is noticed by us that autopsy of Ameer Bano (deceased) was conducted by Dr. Mariam Fayyaz (CW.3) during which she observed a solitary entry wound measuring 2 x 2 cm on the thorax region with blackening around its margin. Not only this, doctor recovered a single projectile from the corpse during postmortem examination. We are compelled to observe here that 12 bore cartridges are manufactured in different shapes and sizes with number of pellets at variance. Dr. B.R. Sharma in his book Forensic Science in Criminal Investigation and Trials Fifth Edition in Chapter-9 titled as Firearms mentioned that SG Cartridges contain 8-projectiles having diameter of 8.43 mm. We have restricted ourselves only to the extent of SG Cartridges as similar empty shells were secured from the crime scene. As per ballistic science, the pallets of .12 bore cartridge spread more and more with increase in the distance. We have also given considered thought to the proposition that the distance between the assailant and victim was 34 feet, keeping in view the blackening around the margin of entry wound but even in such case the pallets should have made ingress in the body of victim as a group along with plastic wad placed in .12 bore cartridge. While holding so, we are enlightened from the observations of Dr. S. Siddiq Husain mentioned in A Text Book of Forensic Medicine and Toxicology, Chapter-VI, Traumatology i.e. Mechanical Injuries as well as of Modi expressed in A Text Book of Medical Jurisprudence and Toxicology, 26st Edition.
Based on the anomaly mentioned above, we are leaned to hold that the nature of injuries observed by Dr. Mariam Fayyaz (CW.3) does not commensurate with the theory of crime advanced by the prosecution canvassing the use of .12-bore weapon, instead it appears that some weapon other than 12 bore caliber was used for the commission of crime. As a necessary consequence, it can unambiguously be held that glaring anomaly is discernable from the ocular account and medical evidence. It goes without saying that purpose of collecting medical evidence in a case against human body, primarily, is aimed at providing assistance to the court in arriving at just conclusion by using it for scrutinizing the ocular account. Any noticeable conflict between the medical and ocular account is destined to discre dit the case of prosecution. Reference in this regard can be made to the case reported as Abdul Jabbar and another v. The State (2019 SCMR 129) wherein the Hon'ble Supreme Court of Pakistan held as under:- "It is the settled principle of law that once a single loophole is observed in a case presented by the prosecution much less glaring conflict in the ocular account and medical evidence or for that matter where presence of eye-witnesses is not free from doubt, the benefit of such loophole/lacuna in the prosecution case automatically goes in favour of an accused."
Further reference on the subject can also be made to the cases reported as Muhammad Ali v. The State (2015 SCMR 137) and Nazeer Ahmed v. The State (2016 SCMR 1628).
14. We have also pondered in-depth upon the motive which was projected as dispute emerging from the possession of a shop. Strangely, it is noticed that the shop dispute was pending between Muhammad Rafique Naseem (PW.3) and Taj Muhammad Khan (since acquitted) and neither Wasi Haider (appellant) nor Ameer Bano (deceased) were party to the conflict. If at all, the incident occurred due to the motive put forth by the prosecution, then Muhammad Rafique Naseem (PW.3) should have been the victim in the case, rather than a household lady Ameer Bano. On this score alone, we are persuaded to discard the motive behind the commission of crime. While embarking upon the recovery of .12 bore carbine statedly effected from the appellant on 27.11.2017 and it is noticed to be of no help to the prosecution as according to PFSA report (Exh.PF) it was found not wedded with the crime empties collected from the spot.
15. The facts and circumstances mentioned above lead this Court to hold that prosecution remained unsuccessful in proving its case against Wasi Haider (appellant) beyond shred of any ambiguity. In such a situation, it would not be safe to uphold the conviction of the appellant and he is found entitled to the benefit of doubt. Resultantly, Criminal Appeal No.281 of 2019 filed by Wasi Haider (appellant) is allowed; his conviction and sentence is set-aside and he is acquitted of the charge. Appellant shall be released forthwith if not required to be detained in any other case.
Resultantly, Murder Reference No.29 of 2019 is also answered in the NEGATIVE and death sentence awarded to Wasi Haider (convict) is NOT CONFIRMED.