1. FAROOQ HAIDER, J. This single judgment will dispose of Criminal Appeal No. 34006/2021 filed by Abu Bakar (appellant/convict) against his "conviction and sentence" and Criminal Revision No.36234/2021 filed by Ansar Iqbal (complainant) for enhancement of sentence of Abu Bakar as both these matters have arisen out of one and the same impugned judgment dated: 30.04.2021 passed by learned Additional Sessions Judge, Gujranwala/trial court.
2. Abu Bakar (appellant) was tried in complaint case titled as "Ansar Iqbal v. Tanvir Ahmad and others" filed under sections 302, 324, 148, 149, 109, P.P.C. in case arising out of FIR No.102/2017 dated: 11.03.2017, registered under sections 302, 324, 109, 148, 149, P.P.C. at Police Station: Ferozewala, District Gujranwala. The detail of conviction recorded and sentence awarded to Abu Bakar (appellant) is as under:- Conviction Sentence Under section 302(b), P.P.C."Imprisonment for life" for committing qatl-i-amd of Muhammad Sagheer alias Malang and to pay Rs.1,00.000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of Muhammad Sagheer alias Malang (deceased), in case of non- payment thereof, to further undergo S.I. for six months'.
2. Benefit of section 382-B, Cr.P.C. was also extended to the convict/appellant.
3. Necessary facts for decision of this appeal are that Ansar Iqbal, (complainant/PW-11) moved application (Ex.PD/1) for registration of case at Police Station: Ferozewala, District: Gujranwala while mentioning therein that he is resident of Mouza Pandupur and is cultivator; on 10.03.2017 at 08:20 p.m. (night), he along with Hassan Iftikhar, Asim and Driver Mudassar were boarding on car bearing Registration No.GAL/46 (Toyota Corolla) whereas Iftikhar Ahmad, Chacha Sagheer alias Malang, Imran and Hafiz Sufian were going ahead while boarding on other vehicle i.e. Dala bearing Registration No.LZR/6566 and when they reached at Sam Nala in front of house of Fayyaz Ahmad Mehar, accused persons namely Tanvir, Abdul Ghaffar, Umar, Abu Bakar, Usman, Rana Tariq, Musa, all armed with Kalashnikovs along with 5/6 unknown accused persons armed with firearm weapons at once came at front; Rana Tariq raised Lalkara that Rana Iftikhar and others be killed, upon which accused persons started straight firing at Dala all the persons boarding in Dala came out of the same for saving their life; complainant and others i.e. Hassan iftikhar, Asim and Mudassar saw in the light of their vehicle as well as in the light of electric bulb available in the street that Tanvir made burst with his Kalashnikov which hit Muhammad Sagheer alias Malang at mouth and forehead Abu Bakar made tire with Kalashnikov which hit Muhammad Sagheer alias Malang in left side flank, which resulted into his death at the spot; Umar fired with Kalashnikov which hit Imran at right arm; Musa fired with Kalashnikov which hit Imran at left arm; Rana Tariq fired with Kalashnikov which hit Imran at back and left leg; Abdul Ghaffar fired with Kalashnikov which hit Rana Iftikhar at left buttock Usman fired with Kalashnikov which hit Hafiz Sufian at right arm; accused with their unknown companions bad been firing randomly at the vehicle and many fire shots hit the vehicle; due to firing of accused persons, Waseem (passer-bye) also became severe injured; accused persons while firing, raising lalkara and uttering abuses fled away from the spot; injured persons and Muhammad Sagheer alias Malang (deceased) were shifted to civil hospital, Gujranwala for treatment and postmortem examination, respectively.
3. It has also been mentioned in aforementioned application (Ex.PD/1) that three days prior to the occurrence, Boota alias Foji and Jehangir (PWs) had seen and heard Ali Shan, Rana Tariq, Ghaffar and Abu Bakar, etc. near Sam Nala while abetting each other for committing murder of Rana Iftikhar etc. On said application, first information report (FIR/Ex.PD) was recorded on 11.03.2017 at 2:45 a.m. at Police Station: Ferozewala, District: Gujranwala. Subsequently, Imran (one of the injured, mentioned above) also died. Though Ansar Iqbal (complainant/PW-11) filed complaint (Ex.PU) regarding same occurrence in the Court while mentioning therein that police has not conducted impartial investigation and has exonerated some accused persons against the facts yet in said complaint, he also changed the role of the appellant because in the FIR it was mentioned that appellant fired with Kalashnikov which hit Muhammad Sagheer alias Malang in left side flank whereas in the complaint, it was mentioned that Muhammad Sagheer alias Malang sustained injuries on different parts of his body from the firing made by the appellant.
4. Accused persons (mentioned in the complaint) were summoned by the learned trial court to face the trial but none of them including the appellant joined the proceedings except Tanvir Ahmad (accused), resultantly, they were declared as proclaimed offenders; learned trial court after conclusion of the trial acquitted said Tanvir Ahmad from the charge vide judgment dated: 21.02.2020 which judgment was assailed before this Court through P.S.L.A. No.17743/2020 and the same has been dismissed vide judgment of even date recorded separately.
5. On 09.08.2020, Abu Bakar (appellant) was formally arrested in the case by Muhammad Atif S.I.
6. (CW-3) and to his extent, trial was re-commenced; he was formally charge sheeted, to which he pleaded not guilty and claimed trial; complainant produced as many as fifteen witnesses to prove the charge against the accused whereas five witnesses were examined by the learned trial Court as Court Witnesses. After recording evidence, accused/appellant was examined under section 342, Cr.P.C. wherein he refuted the allegations levelled against him; he did not appear as his own witness under section 340(2), Cr.P.C, however, produced documentary evidence (Ex.DG to Ex.DZ and Ex.DAA to Ex.DUU) in his defence.
7. Learned trial court after conclusion of trial has convicted and sentenced the appellant/convict as mentioned above through impugned judgment dated: 30.04.2021.
4. Learned counsel for the appellant/convict has submitted that conviction recorded and sentence awarded to the appellant through impugned judgment is against the 'law and facts' of the case; ocular account is not trustworthy and also not corroborated/supported by any other evidence; prosecution has failed to prove its case against the appellant. Learned counsel for the appellant finally prayed for acquittal of the appellant and dismissal of revision petition filed by the complainant for enhancement of sentence of the appellant.
5. Conversely, learned Deputy Prosecutor General and learned counsel for the complainant have submitted that prosecution has proved its case against the appellant up to hilt, therefore, appeal of the appellant be dismissed and while accepting revision petition, respondent be awarded major sentence in accordance with law to meet the ends of justice.
6. Arguments heard. Record perused.
7. It has been noticed that as per case of prosecution, occurrence in this case took place on 10.03.2017 at 08:20 p.m. (night) and first information report (FIR/Ex.PD) was recorded on the written application of Ansar Iqbal (complainant/PW-11) at 2:45 a.m. on 11.03.2017; injured persons namely Iftikhar Ahmad, Imran, Hafiz Sufian, Waseem were taken to District Headquarter Hospital, Gujranwala for treatment at 08:50 p.m., 09:20 p.m., 09:20 p.m.(sic.) and 09:00 p.m. on 10.03.2017 respectively. Dr. Hassan Butt (PW-14) who conducted medico-legal examination of Iftikhar Ahmad (injured/PW-13) categorically stated on oath in his statement recorded during trial of the case that he medically examined Iftikhar Ahmad on 10.03.2017 at about 8:50 p.m. who was brought by Ahsan Baig 2198/C of Police Station: Ferozewala, District: Gujranwala; relevant portion of statement of Dr. Hassan Butt (PW-14) is reproduced:- "On 10th day of March, 2017. I was posted as CMO at DHQ Hospital, Gujranwala. On the same day, at about 8:50 p.m., I conducted MLC of Rana Iftikhar son of Yousaf caste Rajput, aged about 55 years, resident of Jhangi, Gujranwala, injured brought by Ahsan Baig 2198/C Police Station Ferozewala, District Gujranwala."
8. Said doctor (PW-14) also stated that Waseem (injured) was brought by Ahsan Baig 2198/C of Police Station: Ferozewala, District: Gujranwala; relevant portion of his statement is reproduced:- "On 10th day of March, 2017, I also conducted MLC of Waseem son of Saleem caste Jut, aged about 25 years, resident of Jhangi, Gujranwala, injured brought by Ahsan Baig 2198/C Police Station Ferozewala. District Gujranwala."
9. Said portions of statement of Doctor Hassan Butt (PW-14) were not challenged by the State or complainant and he was not re-examined on the subject, meaning thereby that police of Police Station: Ferozewala was in contact with complainant party as Ahsan Baig 2198/Constable of aforementioned police Station brought aforementioned injured persons in the hospital at 8:50 p.m. and 9:00 p.m. respectively. Now question does arise that if it was so then why first information report (FIR) regarding the occurrence was not recorded just after the occurrence or medico-legal examination of aforementioned injured persons and why first information report was recorded with delay of more than six hours i.e. at 2:45 a.m. on 11.03.2017. It goes without saying that no explanation whatsoever for such delay is available on record; in this regard, relevant portion of statement of Ansar lqbal (complainant/PW-11) is reproduced:- "I did not mention reason for delay of six and half hours in registration of FIR."
10. Furthermore, dead body of Muhammad Sagheer alias Malang (deceased of the case) was also taken to said hospital by Muhammad Mustafa 3500/C for postmortem examination and as per Postmortem Examination Report of Muhammad Sagheer alias Malang (deceased) i.e. Ex.PZ, documents for conducting postmortem examination over the dead body of Muhammad Sagheer alias Malang were received by the doctor from police at 6:00 a.m. on 11.03.2017 and postmortem examination over the dead body of Muhammad Sagheer alias Malang was conducted at 6:15 a.m. on 11.03.2017 by Dr. Talal Yastoor (since resigned his job and on his behalf Dr. Ahmad Sikandar Dar appeared as PW-l5 and got recorded secondary evidence); in this regard, relevant 'portions of statement of Dr. Ahmad Sikandar Dar (PW-15) are reproduced:- "On 10.03.2017, I was posted as CMO at D.H.Q. Teaching Hospital, Gujranwala. At that time, Dr. Talal Yastoor Medical Officer was also posted there. He has resigned from his job and is residing abroad, i.e., Ireland. I am well familiar with his handwriting and signatures."
11. "According to PMR, dead body of deceased Sagheer alias Malang was received in Dead House at 1:00 a.m., on 11.03.2017. Police papers were received at 6:00 a.m. on 11.03.2017. It is correct that postmortem is conducted after receiving police papers despite arrival of dead body in dead house prior in time. According to PMR, delay in postmortem examination in present case is not on the part of medical officer."
12. Said state of affairs reflects that FIR was not recorded even at 2:45 a.m. (as claimed above by the prosecution) rather only FIR number was obtained, time was consumed in deliberation, consultation and concocting/fabricating story for the prosecution and thereafter first information report was chalked out with delay, however, mentioning anti-time in the record, which caused delay in completion of police papers for submission to the doctor for postmortem examination report. Undeniably first information report lays foundation of the case as it is presumed that same contains first-hand knowledge/detail of the occurrence just after the occurrence but in the peculiar facts and circumstances of the case, it is crystal clear that first information report in this case was recorded with delay after deliberation, consultation, inducement, procurement and concoction, therefore, neither any sanctity nor evidentiary value can be attached to the same and it cannot provide any corroboration to the case of prosecution against the appellant rather it has lost its efficacy and smashed the case of prosecution; in this regard, guidance has been sought from the case of "Haroon Shafique v. The State and others" (2018 SCMR 2118), "Muhammad Yaseen v. Muhammad Afzal and another" (2018 SCMR 1549), "Muhammad Rafique alias Feeqa v.
13. The State" (2019 SCMR 1068), "Sufyan Nawaz and another v. The State and others" (2020 SCMR 192) and "Muhammad Adnan and another v. The State and others" (2021 SCMR 16).
14. Now coming to the ocular account produced in the case by the complainant party, which comprises of statement of Ansar Iqbal (complainant/PW-11), Hafiz Sufian (injured eye-witness/PW- 12) and Iftikhar Ahmad (injured eye-witness/PW-13). As per application for registration of case (Ex.PD/1) and FIR (Ex.PD), Abu Bakar (appellant) fired with Kalashnikov which hit at left side of flank of Muhammad Sagheer alias Malang (deceased of the case); relevant portion of statement of Ansar Iqbal (complainant/PW-11) is hereby reproduced:- "I have also got recorded in application for registration of case Ex.PT that Abu Bakar accused made fire shot with his Kalashnikov which hit Muhammad Sagheer alias Malang at his left flank."
15. As per postmortem examination report, no firearm injury was found at left flank of Muhammad Sagheer alias Malang (deceased); in this regard, relevant portion of statement of Dr. Ahmad Sikandar Dar (PW-15) is reproduced:- "There is no entry wound on left flank on front side of deceased. As per PMR, there is no entry wound on left flank on back side of deceased."
16. However, Ansar Iqbal (complainant/PW-11) through complaint (Ex.PU) introduced dishonest improvement by changing locale of injury caused by the appellant from "left side of flank" to "different parts of body of Muhammad Sagheer alias Malang (deceased)"; relevant portions of statement of complainant/PW-11 in this regard are reproduced:- "Muhammad Sagheer also sustained fire shots made by accused Abu Bakar (present in Court) on different parts of his body."
17. "I have also got recorded in application for registration of case Ex.PT that Muhammad Sagheer alias Malang also sustained fire shots made by accused Abu Bakar (present in Court) on different parts of his body. Confronted with Ex.PT, where it is not so recorded. I have also got recorded in application for registration of case Ex.PT that Abu Bakar accused made fire shots with his Kalashnikov which hit Muhammad Sagheer at his left flank."
18. "It is incorrect to suggest that Muhammad Sagheer alias Malang had not received any firearm injury on his left flank that's why I made dishonest improvement in my statement to bring it in line with medical evidence,"
19. Similarly, Hafiz Sufian (injured eve-witness) while appearing before the Court as PW-12 also introduced dishonest improvement; relevant portions of his statement are reproduced:- "Muhammad Sagheer also sustained fire shots made by accused Abu Bakar (present in Court) on different parts of his body."
20. "I had got recorded in my statement under section 161, Cr.P.C. that Muhammad Sagheer also sustained fire shots made by accused Abu Bakar on different parts of his body Confronted with. Ex.
21. DD, wherein words "shots and different parts of his body" are not mentioned. I had not got recorded in my statement under section 161, Cr.P.C. that Abu Bakar made fire shot of Kalashnikov which hit Sagheer alias Malang at his left flank. Confronted with Ex.DD, where it is so recorded."
22. Iftikhar Ahmad (injured eye-witness/PW-13) in his statement recorded before the Court also introduced dishonest improvement; relevant portions of his statement are also reproduced:- "Muhammad Sagheer also sustained fire shots made by accused Abu Bakar (present in Court) on different parts of his body."
23. "I had got recorded in my statement under section 161, Cr.P.C. that Muhammad Sagheer also sustained fire shots made by accused Abu Bakar on different parts of his body. Confronted with Ex.DF, wherein words "shots and different parts of his body" are not mentioned. I have not got recorded in my statement under section 161, Cr.P.C that Abu Bakar made fire shot which hit at left flank of Sagheer alias Malang at his left flank. Confronted with Ex.DF, where it is so recorded."
24. It is incorrect to suggest that Sagheer alias Malang deceased received no firearm injury at his left flank that's why I made dishonest improvement to bring my evidence in line with medical evidence."
25. So it is crystal clear that complainant as well as aforementioned eye-witnesses/PWs introduced same dishonest improvements in order to bring ocular account in line with medical evidence. It is well settled that if prosecution witness including injured witness introduces dishonest improvement in order to bring ocular account in line with medical evidence, then his evidence is to be thrown away altogether and cannot be relied upon; in this regard, guidance has been sought from the cases of "Muhammad Mansha v. The State" (2018 SCMR 772), "Muhammad Arif v. The State"
26. (2019 SCMR 631), "Naveed Asghar and 2 others v. The State" (PLD 2021 SC 600) and "Khalid Mehmood and another v. The State and others" (2021 SCMR 810). Therefore, complainant and injured witnesses, who have made dishonest improvements in order to bring ocular account in line with medical evidence have not been found N as reliable and truthful; their testimony is neither confidence inspiring nor believable. By now it is well settled that mere presence of injury on the person of prosecution witness does not stamp him to be a truthful witness; in this regard, guidance has been sought from the cases of "Amin Ali and another v. The State" (2011 SCMR 323) and "Ishtiaq Hussain and another v. The State and others" (2021 SCMR 159).
27. It is available on the record that one Irshad Mehar also received firearm injury during the occurrence and died subsequently but his injury was not explained rather suppressed by the complainant party in the application for registration of FIR -as well as in the complaint, however, Ansar Iqbal (complainant/PW-11) admitted said fact in his statement recorded before the Court; in this regard, relevant portion of his statement is reproduced:- "one Irshad was also injured during the occurrence who died later. I did not mention this fact in application for registration of case Ex.PT. "
28. Hafiz Sufian (injured eye-witness/PW-12) also deposed in his statement before the Court about the said factum; relevant portion of his statement is reproduced:- "During instant occurrence, one Irshad Mehar also sustained fire shots who died later. It is correct that I didn't narrate this fact before police as well as in the Court during cursory evidence and in previous trial conducted to the extent of co-accused Tanvir Case regarding murder of Irshad Mehar was registered against Rana Iftikhar and his sons. Volunteers, it was registered after 20 days of his death."
29. Similarly, Iftikhar Ahmad (injured eye-witness/PW-13) also deposed about the factum of injury on the person of one Irshad Mehar during the occurrence; relevant portion of his statement is reproduced:- "During instant occurrence, one Irshad also sustained firearm injury and he died later."
30. It is also well settled principle of law that if injuries received by any person are suppressed or not explained by the prosecution, then the prosecution case lacks "proof beyond doubt"; in this regard, case of "Bashir Ahmad and another v. The State and others" (2019 SCMR 1417), "Amjad and another v. The State and another" (2020 SCMR 2084) and "Muhammad Jared v. The State" (2020 SCMR 2116) can be advantageously referred.
31. In view of above, the ocular account has not been found as reliable, trustworthy and confidence inspiring, hence discarded.
32. As per ocular version, occurrence took place during night time at 8:20 p.m. and occurrence was witnessed by the complainant and other witnesses in the light of electric bulb installed in the street and lights of the vehicle of the complainant i.e. TOYOTA Corolla Car bearing registration No.GAL-46 but neither said electric bulb nor said car was taken into possession during investigation.
33. Bilal Ahmad Bhatti (Draftsman/PW-4) also did not mention exact place of installation of electric bulb; relevant portion of his statement is reproduced:- "I have not mentioned that on which floor of house of Umer, Electric Bulb was placed. Neither I have mentioned the height of wall of plot of Ghulam Murtaza nor height of Electric Bulb installed on wall."
34. Therefore, any source of identification of the assailants also could not be established by the prosecution.
35. So far as medical evidence is concerned, case of prosecution mentioned in the first information report was that appellant fired with his Kalashnikov at the left side of flank of Muhammad Sagheer alias Malang (deceased), however, as per his postmortem examination report, no such injury was found therein. Even otherwise, medical evidence is a supportive evidence and not corroborative piece of evidence; therefore, it cannot provide any corroboration to the case of prosecution against the appellant.
36. So far as recovery of Kalashnikov (Ex.CW-2/A) from Abu Bakar (appellant) is concerned, suffice it to say that as per report of Punjab Forensic Science Agency, Lahore (Ex.PBB) produced by prosecution, after comparison, it was found that though said weapon was found to be in mechanical operating condition yet empties were found as not fired from the same; therefore, said recovery has become inconsequential because mere report regarding working condition of weapon of offence is of no avail to the case of prosecution; in this regard, guidance has been sought from the case of "Muhammad Arif v. The State" (2019 SCMR 631) and "Liaqat Ali and another v. The State and others" (2021 SCMR 780). Therefore, recovery could not provide any corroboration to the case of prosecution.
37. So far as motive to the extent of present appellant is concerned it has come on the record that there was no direct enmity between Abu Bakar (appellant) and Ansar Iqbal (complainant) as well as Muhammad Sagheer alias Malang (deceased); relevant portion of statement of Ansar Iqbal (complainant/PW-11) is reproduced:- "Prior to instant case, I myself did not get registered any criminal case against Abu Bakar or his family members. It is not in my knowledge whether Sagheer alias Malang had got registered any criminal case against Abu Bakar accused or his family members. Abu Bakar accused or any member of his family never got registered any criminal case against me, my father and my brothers and sisters. It is not in my knowledge whether Abu Bakar accused or his any family member got registered any criminal case against Sagheer alias Malang. No civil suit is pending between my family and family of Abu Bakar accused. It is not in my knowledge whether any civil suit is or remained pending in any Court."
38. Even no motive was mentioned by the complainant in application for registration of case (Ex.PT); relevant portion of statement of Ansar Iqbal (complainant/PW-11) is reproduced:- "I have not got recorded motive behind the occurrence in application for registration of case Ex.PT."
39. Even otherwise, when substantive piece of evidence in the form of ocular account has been disbelieved to the extent of appellant, then motive is of no help to the case of prosecution which is even otherwise a double edged weapon and can also be considered as reason for false implication.
40. As far as proclamation of present appellant is concerned, it is important to mention here that proper issuance of warrant of arrest and proper report on the same have to be proved by the prosecution but in this case prosecution got exhibited warrant of arrest of appellant as Ex.PF however, perusal of the same reveals that it was not issued to any police officer for execution rather through this warrant accused (sic.) was asked to arrest accused; similarly, it has not been mentioned in the proclamation (Ex.PJ) that in how much period or till which date, accused had to surrender; any detail of house number, street number, specific name of mohallah in the village or any other detail showing abuttals of house of accused is not available in the report of process server (Ex.PF/1) on the warrant as well as Ex.PJ/I i.e. report on proclamation; in this regard, relevant portions of statement of Muhammad Saleem (PW-3) are also reproduced:- "I have not shown in report Ex. PJ/1 that at the time of my visit, the house of accused was locked or un-locked and whether cur inmate was present there or not."
41. "It is correct that in proclamation Ex. PJ columns meant for "limitation" and "date" are blanked."
42. In view of above, both warrant and proclamation are defective and mandatory requirements for the same have not been fulfilled; resultantly same are of no avail and cannot provide any corroboration to the case of prosecution; in this regard, guidance has been sought from the case of "Muhammad Arif v. The State" (2019 SCMR 631). Even otherwise, abscondance is not proof of the charge; in this regard, guidance has been sought from the case of "Wajeeh-ul-Hassan v. The State" (2019 SCMR 1994); furthermore, when ocular account to the extent of appellant has been disbelieved, then abscondance is of no help to the case of prosecution. Reliance is placed on the case of "Rohtas Khan v. The State" (2010 SCMR 566).
8. Nutshell of the above discussion is that prosecution has been failed to prove its case against the appellant beyond shadow of doubt and in such state of affairs, there is no need to discuss defence version.
9. In view of all above, instant appeal filed by Abu Bakar is allowed/accepted, conviction recorded and sentence awarded to the appellant through impugned judgment dated: 30.04.2021 passed by learned Additional Sessions Judge, Gujranwala, is hereby set aside. Appellant is acquitted of the charge and will be released forthwith if not required in any other case.
10. Consequent upon aforementioned reasons, Criminal Revision No.36234/2021 filed by Ansar Iqbal (complainant) for enhancement of sentence of Abu Bakar (appellant), has lost its relevance;