DR. KHURSHID IQBAL, J. We propose to dispose of Criminal Appeal (C.A.) # 269-P/2021 ("Janat Gul v. The State, etc") and Criminal Revision (C.R.) #109-P/2021 ("Muhammad Saeed v. Janat Gul etc") through this single judgment as they relate to the same occurrence. The accused (hereinafter 'the appellant') was charged and tried for the murder (qatl-i-amd) of Hamidullah son of Muhammad Saeed (the complainant) for which the learned ASJ-II/MCTC, Hangu found him guilty under section 302(b) of the Pakistan Penal Code, 1860 (P.P.C.) vide Judgment passed on 04.03.2022. The appellant was sentenced to life imprisonment with a fine of Rs. 3,00,000/00, payable to the complainant as compensation within the meaning of section 544 of the Code of Criminal Procedure, 1898 (Cr.P.C.). In default of paying the said compensatory amount, the appellant had to undergo further six months simple imprisonment. The appellant has appealed against the above judgment which is before us. The complainant, on the other hand, seeks, through the connected C.R., enhancement of sentence from life sentence to death penalty.
2. On 24.03.2020, Muhammad Saeed, the complainant, gave the account of occurrence to the police in District Head Quarter Hospital (hospital) of Hangu that on 24.03.2020 at 17:30 hours, he was on the way back to his home from the graveyard, at a distance of 70/80 paces, he heard fire shots. He saw the appellant, a resident of his village Charbala Bagato, was on the run after having fired two shots. As the complainant rushed to the spot, he found that his son Hamidullah was killed, lying there. He charged the appellant for the murder of his son without providing any motive for the murder of his son by the appellant.
3. Umer Farooq, MHC, recorded the report of the complainant in the shape of a murasila in the casualty room of the hospital. He read over the contents of the murasila to the complainant. The latter, after having admitted it as correct and true, put his signature on the murasila. He also prepared the injury sheet of the deceased and handed over the dead body of the deceased to the doctor concerned through Constable Muhammad Shoaib (No. 407) for the purpose of conducting post-mortem examination. He also sent the murasila to the Police Station (PS) City, Hangu. Oh 24.03.2020, a First Information Report (FIR) No. 224 was registered under section 302, P.P.C.
4. The appellant was arrested by the City Police Station on 10.04.2020, at 10.20 hours, at a place called Somarri Check Post, some 5/6 kilometres to the South-East of the PS. From his personal possession, a thirty bore (.30) pistol without license along with 5 live rounds, was recovered and taken into possession vide a memo. Another FIR No. 248 was registered against the appellant under section 15 of the Khyber Pakhtunkhwa Arms Act, 2013 ('the KP AA'), in the City PS. The appellant was also shown as arrested in the murder case.
5. The investigation of both cases was conducted by Assistant Sub-Inspector Nazeer Badshah. In the murder case, the Investigation Officer (IO), prepared the site plan at the instance of the complainant, recovered some blood stained earth, one empty of .30 bore pistol from the spot, and blood stained clothes comprising of Qamees Shalwar and a Banyan, having cut marks; recorded supplementary statement of the complainant under section 161, Cr.P.C. on the spot and prepared the list of the legal heirs of the deceased. He also sent the bullet shell and the pistol to the Forensic Science Laboratory (FSL) on 24.03.2020 and obtained a forensic report. Moreover, he also applied for issuance of warrant of arrest of the appellant under section 204 and thereafter proclamation notices under section 87, Cr.P.C. against the accused. Furthermore, he recorded the statements of the PWs under section 161, Cr.P.C. and produced the appellant before the Illaqa Judicial Magistrate for recording his confessional statement, which the latter refused.
6. On completion of investigation, final reports (challans) of both the cases were sent to the learned trial Judge. In compliance with section 265-C, Cr.P.C., copies of the relevant documents were supplied to the appellant. Charge was framed against him, to which he pleaded not guilty and claimed trial. After recording evidence of the prosecution, statement of the appellant was recorded under section 342, Cr.P.C., in which he was afforded an opportunity to record statement on oath or produce evidence in defence. The appellant did not avail such opportunity.
7. The Prosecution produced and examined the following 12 PWs in support of its case: PWs: No. and Name Gist of statementDocuments exhibited PW-.1: Dr. Mushtaq Saeed Conducted autopsy of deceased Ex PM/1, Ex PM/2 PW-2: Waqar Alam IHC Witness to recovery memo PW-3: Waseem Akram PASIWitness to pointation memo Ex PC/1 PW-4: Shah Dauran Khan SHOArrested the accused, card of arrest and submitted initial and supplementary challanEx PW4/1 to 4/3 PW-5: Zulfiqar Ali IHC/375 Witness to recovery memo Ex PW5/1 to 5/2 PW-6: Shafiullah Khan MASIScribe of FIR, converted murasila into FIR and kept the case property in safe custodyEx PA PW-7: Umar Farooq MHCPrepared injury sheet and inquest report, drafted the murasilaEx PW7/1, 7/2 and Ex PA/1 PW-8: Muhammad Raees constable No. 46Witness to recovery memo, took the cast property to FSLEx PW 8/1 to 8/2 PW-9: Habib Noor Identified the dead body of deceased in hospital PW-10: Saeed Complainant, reiterated the FIR story PW-11: Nazir Badshah ASI Conducted investigation (see para 6, above)Ex PB, PZ, PZ/1, Ex PW11/1-11/11 PW-12: Constable Muhammad Shoaib No. 407Present with PW7 on the hospital who prepared the injury sheet and inquest report.
8. Mr. Muhammad Irfan Khattak, learned counsel for the appellant, argued that this is a case of no evidence inasmuch as the complainant stated two versions of the story of the occurrence. He referred to the initial report the complainant narrated to the. police in the hospital and then a supplementary statement he recorded before the I.O. Mr. Khattak further argued that the prosecution failed to produce any independent evidence despite the fact that so many other persons were stated to be near around the place of the occurrence. He emphasized that the murasila (FIR) and the site plan are not propping up each other. He further stressed that the complainant is father of the deceased whose testimony is not only prompted by self-interest but also not confidence inspiring.
9. The learned Additional Advocate General, assisted by Syed Abdul Fayyaz, learned private counsel for the respondent/complainant, argued that the complainant, irrespective of being father of the deceased, saw the appellant running away from the crime scene. They maintained that the complainant having seen his son killed with a fire arm was a natural consequence of the act of the firing by and decamping of the appellant from the spot. They denied any contradiction between the murasila and the site plan. They added that medical evidence also buttresses the charge, as it confirms the injuries being of firearm nature. They vehemently argued that the complainant's supplementary statement spells out information that is relevant to the fact in issue, and as such, admissible evidence.
10. The prosecution case rests on the sole statement of the complainant (PW-10), father of the deceased. Admittedly, the complainant did not see the appellant firing at the deceased. His assertion is that near the place of the occurrence, he heard fire shots and saw the appellant running after firing. The complainant was not alone when he heard the fire shot. While on the way home, the complainant was accompanied by other people. The prosecution didn't bring any single person from amongst those present with the complainant to support its stance. In order to plug this fundamental dent in his case, the complainant recorded a supplementary statement before the IO, after two hours of the occurrence. In that statement, the complainant offered an absolutely new version of the story of the occurrence and thereby put at naught his entire case. The crux of that statement is: On 24/03/2020, one Dr Surat Khan of our village had passed away. I along with other people of my village went to the graveyard for digging the grave. After completion of the digging of the grave, I along with other people of the village was going back to my house. After crossing the metalled road, while we were on the katcha road towards south, I saw with my own eyes that near Masjid Khuzaifa of our village in the open plain area, my son Hamidullah was present. The accused Janat Gul armed with a pistol was also present there. In the meanwhile, accused Janat Gul with his pistol fired at my son who was hit and fell on the ground. Janat Gul ran towards his house.
When I reached the spot, my son was lying dead there in a pool of blood.
11. The statement is a significant and enormous improvement on the first account contained in the murasila. It introduces substantial improvements. In the supplementary statement, the complainant disclosed the name of father of the accused, a fact he did not mention in the murasila. According to the murasila, the complainant, after hearing fire shots, saw the appellant running away. The supplementary statement shows that he saw the appellant present on the spot and firing at his son. It appears from the murasila that the complainant didn't see his deceased son, rather he saw him dead when he rushed to the spot after hearing fire shots. It follows that in the statement, he showed himself as the eye-witness of the occurrence.
12. When appeared in the witness box, the complainant (PW-10) made several admissions and improvements: first, he admitted that in the murasila he did not disclose the name of father of the appellant. Second, he and other persons were at a distance of 70/80 paces from the graveyard. In the murasila, he showed this distance in respect of hearing the fire shots. Third, the crime spot and the place where he heard firing were at distance of 40/42 paces. In the murasila, he disclosed that he heard the firing at 70/80 paces. Fourth, he admitted in the murasila that he heard the firing and saw the accused running after firing. This contradicts his supplementary statement in which he said he saw with his own eyes the appellant firing at his son. Fifth, he admitted that in the murasila he did not specifically show himself as an eye-witness. Sixth he denied a suggestion that he was not present on the spot. In the supplementary statement, he showed himself as an eye-witness in the murasila as having heard the firing only. Despite all this, he admitted the murasila and the supplementary statement as correct. He also admitted that other people accompanied him and that some village people were attracted to the spot and helped him in lifting up the dead body of his deceased son. But as noted earlier, no person was examined as an independent witness of the occurrence. It needs no emphasis that the information the complainant disclosed in his supplementary statement was well within his knowledge at the time he was making report in the murasila. It is thus established that the complainant made dishonest improvements. Reliance is placed on: a. Muhammad Rafique and others v. The State and others 2010 SCMR 386 [Supreme Court of Pakistan] b. Muhammad Jamil v. Muhammad Akram and others 2009 SCMR 120 [Supreme Court of Pakistan] c. Akhtar Ali and others v. The State 2008 SCMR 6 [Supreme Court of Pakistan] d. Farman Ahmad v. Muhammad Inayat and others 2007 SCMR 1825 [Supreme Court of Pakistan].
13. In Muhammad Rafique, noted above, the complainant made improvements over the FIR story in his deposition before the court. The complainant disclosed the names of certain assailants whom he didn't nominate in the FIR despite that fact he knew them previously and that electricity light was available at the time of incident. The honourable Court said that such improvement creates serious doubt about the veracity and credibility of the complainant.
The honourable Court further observed: This shows that the witness has suppressed the truth and spoke lie and has no sanctity of Oath.
This Court in the case of Saeed Muhammad Shah v. State 1993 SCMR 550 observed that if a witness improves his statement on material aspects of the case then such improvement in not worthy of reliance and evidence of such witness required corroboration. In the case of Khalid Javed v. State 2003 SCMR 1419 while reiterating the above rule, it was further observed that such witness is to be considered to be wholly unreliable and it is not advisable to place explicit reliance upon his evidence.
14. The complainant admitted that ordinarily young males of the village dig a grave when someone passes away. Thus, it cannot be presumed that he would have been present in the graveyard or, for that matter, was returning from the graveyard, regard having been to common course of natural events and human conduct (see illustration (g), Article 129 of the QSO). If this aspect is ignored for a while, another aspect worth consideration is that the complainant was not alone while he was either in the graveyard or was returning home from the graveyard. But no person was examined in support of the prosecution case. This leads to an adverse inference that had such evidence been produced, it would have not favoured the prosecution. Reference may be made to the cases of Abdul Haleem and others v. The State and others 2015 PCr.LJ 1269 and Riaz Ahmed v.
The State 2010 SCMR 846.
15. Even the contents of the murasila were not verified by anyone despite the fact that other persons accompanied him. The complainant was not confronted on this point. However, the police official who recorded the report at the strength of the murasila (PW-7) was asked about it and he admitted that the report was not verified by any other person. While arguably, it may not be considered as necessary, the report clearly shows that the complainant was accompanied by other persons. Corroboration by another witness would have lent credibility to the account of murasila.
16. As regards the distance at which the complainant heard the tire shots, the narration in the murasila, the site plan and the testimony of the complainant are not supporting each other. In the murasila, the distance was shown as 70/80 paces. The site plan demonstrates that it was 43 paces; the complainant being at point # 3 and the place of tiring at point # 2. In his statement (PW-10), the complainant showed it 70/80 paces but from the graveyard. He then added that the distance between the place of the occurrence and the place at which he heard the fire shots was 42/42 paces. This creates material doubt as to accuracy of the complainant's account for the following reasons. First, why other persons didn't hear the fire shots. Secondly, the murasila does not explicitly show that the complainant and other persons were 70/80 paces away from the graveyard. Thirdly, if the aforesaid distance is considered as correct, then, as the complainant himself stated in his deposition, there were so many people in the graveyard digging a grave at the time of the occurrence. Fourthly, as noted above, even the I.O. also didn't associate any single person in the investigation.
17. Coming to the medical evidence, no doubt, the injuries observed by the concerned police official on the dead body of the deceased were found to be the same by the medical officer in the post mortem report. This fact alone is not sufficient to prop up the prospection case as such evidence.
Reliance is placed on Sajjan Solangi v. The State 2019 SCMR 872, the honourable Supreme Court held: The medical evidence at the most could be supportive evidence to the ocular account and by itself cannot identify the assailant but as already discussed in this case there is no ocular account, hence medical evidence is also not helpful to the prosecution.
18. We would now examine the pointation by the accused. At the foot of the site plan, the 10 made an endorsement to the effect that on 12.4.2020, the appellant himself pointed out the manner in which he committed the crime. He was taken to the place of the occurrence where he, as per the contention of the I.O., indicated point # 2, as his place of presence the complainant pointed at the time preparation of the site plan. The IO prepared a memo of this fact in the presence of two marginal witnesses. PW-3 one of those witnesses was produced as its witness by the prosecution.
PW-3 stated in the cross-examination that no recovery was made during the pointation. His cross- examination further shows that the complainant was not present at that time.
19. The police investigators have recently started this practice of disclosure by the accused persons under the garb of discovery within the meaning of Article 40 of the QSO. This practice is against the QSO. Perhaps, the investigators tend to present it like a confession of the accused which is not allowed under Article 39, QSO. No doubt, the provision of Article 40 QSO provides that so much of such information as is brought to light in consequence of discovery, may be proved. However, the information obtained in such manner as the situation is in the case in hand, does not attract the application of Article 40. The reason is that this does not amount to discovery as the IO had already seen the scene of the occurrence and prepared its site plan. Mere taking of the accused to the same place and verifying from him his place of presence and other details are not sufficient.
Legally, such evidence is inadmissible and should, in no case, be allowed to be brought on the record, let alone believing in it. In Hayatullah v. The State 2018 SCMR 2092, the honourable Supreme Court has held that allowing such evidence: [I]Indicates ignorance of the basic provisions of the law on the part of Prosecutor, defence Counsel and the learned trial Judge. It also indicates the lack of control of the learned presiding officer over the proceedings being conducted by him".
The honourable Supreme Court further said: [A]fter making such disclosure before the police on 11.02.2006 that the deceased had received a bullet injury and from the place of occurrence an empty of .30 bore pistol was also recovered. So the recovery of the pistol after the said disclosure was not a new fact or not a fact which was not in the knowledge of the police [....] the disclosure is worthless, irrelevant and inadmissible as the same place was already in the knowledge of the police and a site plan of the same place had already been prepared on 11.02.2006.
20. In view of the above legal position, we are not inclined to discuss the so-called disclosure and do not attach any weight to those portions of the statements of the IO (PW-11) and the marginal witness of the memo (PW-3) which relate to such disclosure.
21. Two key recoveries on which the prosecution relied were a shell of .30 bore pistol from the place of the deceased on the spot on the date of the occurrence (i.e. 24.03.2020), and a .30 bore pistol from the possession of the appellant at the time of his arrest on 10.04.2020. It is worth noting that the pistol being unlicensed, a separate criminal case FIR No. 248, dated 10.04.2020, under section 15, KPAA, at PS, Hangu City, was registered against the appellant. The shell and the pistol were sent to the FSL on 12.04/2020, which tendered a positive report. Shah Dauran, SHO (PW-4), who arrested the accused on 10.04.2020, deposed that he made no recovery from accused: "It is correct that nothing incriminating was recovered by me from the possession of the accused." This makes the recovery of the pistol substantially doubtful.
22. Lastly, the prosecution set up no motive. In his supplementary statement, too, the complainant remained silent about motive. On the judicial record, a copy of a police Daily Diary (DD) No. 37 of 24.3.2020 is available. The DD was recorded by the police officials who raided the house of the appellant on the day of the occurrence at 19:30 hours. While the appellant was not found at his residence, two women informed the police that at 1400 hours the same day, one Hamid son of Saeed of the same village took the minor son Abu Bakar Siddique of the appellant to the nearby jungle and committed sodomy with him which Abu Bakar reported in his house. They further reported that a jirga was also sent to the house of Saeed (complainant) but of no avail. The DD was not exhibited. We do not intend to read it a motive as neither the prosecution has stated it, not is motive itself a material aspect of the case.
23. The conclusion of the above discussion is that the prosecution has failed to prove the charge against the appellant beyond reasonable shadow of doubt. The complainant--the star witness of the prosecution, also father of the deceased-has made substantial improvements in his statement. His testimony could not be relied upon in the circumstances of the case, most notably on capital charge. The recovery of the crime weapon is disproved. Reference may be made to Sajjad Ali v. The State 2009 SCMR 821 [Shariat Appellate Jurisdiction).
24. Hence, we allow Criminal Appeal # 269-P/2021 and acquit the appellant of the charge levelled against him. Consequently, we dismiss the C.R. # 109-P/2021 of the complainant/State for enhancement of the sentence.
25. These are the detailed reasons of our short order passed on 20.07.2022.