RAJA SHAHID MEHMOOD ABBASI, J. Through this appeal under section 410, Cr.P.C. Muhammad Races appellant has challenged the wires df judgment dated 15.05.2018 handed down by learned Additional Sessions Judge, Gujar Khan in case FIR No.225 dated 02.11.2016, registered under sections 302, 34, P.P.C., at Police Station Mandra, District Rawalpindi, whereby he was convicted under section 302(b), P.P.C. and was sentenced to death for committing Qatl--i-amd of Shafqat Hussain deceased. He was directed to pay Rs.300,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased or in default thereof to further undergo simple imprisonment for six months. In case of non-payment of the amount of compensation the same was held as a liability against the person and property of the appellant. However, his co-accused Ghulam Murtaza was acquitted of the charge by extending the benefit of doubt in his favour. On the other hand, learned trial court has sent a Reference under section 374, Cr.P.C. (Murder Reference No.44 of 2018) for confirmation or otherwise of the death sentence passed against the appellant. We propose to decide these matters together through a single judgment.
2. The prosecution story set forth in FIR (Ex.PC) is that Aksar Bibi complainant was a resident of Tharjial Khurd and her husband Shafqat Hussain was a cultivator by profession. On 02.11.2016, she along with her daughter Ghazala and husband Shafqat Hussain as per their usual daily routine alongwith their cattle left for a "Kass" near "Sawoor". She along with her daughter got engaged in their job in the fields while her husband along with cattle left for "Kass" and at about 10:00 a.m. when he reached near the land of Murad Ali, she heard noise, upon which she along with her daughter Ghazala rushed towards the direction of noise, whereas Masood Ahmad and Talib Hussain, residents of the same village, who were grazing their cattle nearby also rushed towards that place. Within their view, accused Waheed fired a shot with .30 bore pistol targeting the head of Shafqat Hussain and then accused Raees made second fire shot which also hit on the head of Shafqat Hussain and he fell down on the ground after sustaining firearm injuries. Thereafter Ghulam Murtaza inflicted blunt side of hatchet on the right ear pit of Shafqat Hussain. When the complainant and other witnesses tried to catch hold of the accused, the accused pointed their pistols towards them and threatened that if anyone would come near, he would be murdered.
Thereafter the accused took to their heels towards the Kass while brandishing their weapons and making aerial firing. Shafqat Hussain succumbed to the injuries at the spot. According to the complainant, the accused had suspicion that the deceased had illicit relations with the wife of accused Waheed and due to this grudge, they committed his murder, hence, the crime report.
3. After registration of case, Muhammad Sharif S.I. (PW10) carried out the investigation and after completion of investigation, he challaned Muhammad Raees appellant and his brother/co- accused Ghulam Murtaza, whereas third accused namely Waheed became proclaimed offender and reportedly he is still at large.
4. The accused, on indictment, pleaded not guilty and claimed trial. The prosecution, in order to prove its case, produced ten witnesses in all, out of whom, Aksar Bibi complainant (PW6) and Talib Hussain (PW7) finished eye-witness account. Muhammad Shehzad (PW9) testified about the recovery of pistol .30 bore from Muhammad Raees appellant as well as hatchet from co-accused Ghulam Murtaza. Masood Ahmad 6653/C (PW8) executed non-bailable warrants of arrest and proclamation against the accused. Muhammad Sharif S.H.O. (PW10) testified about various steps taken by him during the investigation of the case. Dr. Zeshan Azmat (PW4) conducted autopsy on the dead body of Shafqat Hussain deceased vide postmortem report (Ex.PG) and observed the following injuries:-
1. Entry wound/inverted injury above the forehead about 08-cm. 'above right eyebrow on scalp and 09-cm about right ear measuring 1.0 x 1.0 cm blackening/tattooing present.
2. Firearm exit wound/everted margins on posterior occipital bone 13-cm posterior to injury No.01.
11-cm from ear. measuring 1.5 x 1.5-cm blackening/tattooing absent. Corresponding to Injury No.01.
3. Entry wound/inverted margins measuring 1.5 x 1.5 cm, 06-cm posteriolateral to left ear, blackening/tattooing present. Damaging brain and internal meninges.
4. Exit wound/everted margins measuring 03 x 3.5 cm and 02-cm behind right ear, blackening/tattooing absent.
5. Bruise measuring 04 x 04 cm and 01-cm from right eye underlying bone damaged.
According to the doctor, the cause of death was brain injury and bullets, pierced brain and damaged. He further opined that the injuries were ante-mortem and were sufficient to cause death in ordinary course of nature. Duration between injuries and death was instant and between death and postmortem examination was about 5/6 hours.
The remaining prosecution witnesses, more or less, are formal in nature. The prosecution gave up PWs Ghazala Bibi, Masood Ahmad, Ghalib Hussain, Sohail Shafqat and Liaqat being unnecessary and closed its evidence after tendering, the reports (Ex.PW and Ex.PX) of the Punjab Forensic Science Agency.
Thereafter, the accused were examined under section 342, Cr.P.C. whereby they professed their innocence in the matter and denied all the allegations levelled against them. They did not depose within the scope of section 340(2), Cr.P.C. or adduce evidence in their defence. 4, The contention adopted by Muhammad Raees appellant in reply to the question as to why this case against him and why the PWs had deposed against him, read as under;- "All the PWs are close relatives. There is no independent witness of this occurrence. I and Ghulam Murtaza were living in Chakwal to earn our livelihood. On the day of occurrence we were in Chakwal. Waheed (since P.O) and his family were living in village; but separately from our parents.
We do not know whether any personal matter was pending between Waheed and deceased Shafqat Hussain. Complainant involved us in this case being a real brother of Waheed (since P.O)."
The learned trial judge on conclusion of the trial held the appellant guilty of the offence charged and sentenced him as mentioned hereinabove, but proceeded to acquit his co-accused Ghulam Murtaza by extending the benefit of doubt in his favour, hence, the criminal appeal and the connected murder reference.
5. Learned counsel for the appellant emphatically contended that the impugned judgment is against law and facts of the case: that the material available on record does not justify the conviction and sentence awarded to the appellant and the same is not sustainable in the eyes of the law; that the appellant has been falsely involved in this case by the complainant by spreading a wider net; that the prosecution has miserably failed to prove its case against the appellant beyond any shadow of doubt; that the story narrated by the complainant in the FIR is false and frivolous; that it was an unseen occurrence as the eye-witnesses were not present at the place of occurrence at the relevant time; that the so-called eye-witnesses were in fact chance witness, who failed to furnish any plausible justification of their presence at the spot at relevant time; that the statements of prosecution witnesses are full of contradictions and discrepancies which were not properly appreciated by learned trial court in its true perspective and passed the impugned judgment in hasty manner; that the ocular account in this case has been furnished by interested and chance witnesses who are inimical to the appellant; that the tractor driver, who was allegedly present at the spot at the relevant time was the most crucial witness of the prosecution, had not been produced before the trial court only because he was not ready to support the false prosecution story; that the medical evidence runs contrary to the ocular account and the recovery of weapon of offence is also fake and planted by the police upon the appellant in connivance with the complainant party; that motive also remained far from being proved by the prosecution against the appellant. Learned counsel further argued that co-accused of the appellant has been acquitted of the charge by declaring the prosecution witnesses unworthy of reliance, so in view of recent pronouncement of the Hon'ble Supreme Court, they cannot be relied upon against the appellant. Finally he prayed that the appellant may be acquitted of the charge.
6. On the other hand, learned Deputy District Public Prosecutor assisted by learned counsel for the complainant contended that the appellant is nominated in the promptly lodged FIR with specific role attributed to him and the role attributed to him is borne out from postmortem report of the deceased; that the prosecution witnesses had no reason to falsely implicate the appellant in this case or to substitute him in lieu of real culprit, which is a rare phenomena and it cannot be imagined that one can involve an innocent person in such a heinous offence by leaving the real culprit; that the prosecution witnesses are consistent on each and every material point and there seem `no discrepancies in their statements; that the medical evidence furnished by the doctor in this regard fully corroborates the ocular account; that during the investigation, weapon of offence was recovered from the appellant and the recovery proceedings were proved through reliable evidence adduced by the recovery witnesses; that the positive report of the Punjab Forensic Science Agency provided unimpeachable evidence with regard to the guilt of the appellant and that cannot be overlooked; that motive part of the occurrence has also successfully been established by the prosecution before the trial court; that acquittal of co-accused is not fatal in this case keeping in view his distinctive role in the incident; that the prosecution has proved its case against the appellant beyond any reasonable shadow of doubt, therefore, the appeal filed by the appellant may be dismissed, his death sentence may be confirmed and murder reference may be answered in affirmative.
7. We have heard the learned counsel for the parties at length, have given our anxious consideration to their arguments and have scanned the record with their assistance.
8. For reappraisal of evidence, we have taken everything into our full consideration in the light of arguments advanced by both the sides. It is cardinal principle of law that each criminal case has its own peculiar facts and circumstances and same hardly coincide with each other on salient features. Undoubtedly it was an unfortunate incident in which an innocent person was gunned down and the allegation was against three real brothers namely Waheed Ahmad co-accused (P.O.), Muhammad Raees appellant and Ghulam Murtaza co-accused (since acquitted). Waheed Ahmad co-accused (P.O.) and Muhammad Raees appellant were assigned the role of inflicting one fire shot each on the head of Shafqat Hussain deceased and Ghulam Murtaza co-accused (since acquitted) was saddled with the responsibility of inflicting blunt side of hatchet on his right ear pit. In order to substantiate its case, the prosecution has led evidence in the shape of eye- witness account, medical evidence, recovery of weapon coupled with forensic report and the motive. Firstly we would like to discuss the evidence of eye-witnesses i.e. Aksar Bibi complainant (PW6) and Talib Hussain (PW7). Deep analysis of their statements reveals that though they have reiterated almost the same facts as narrated in FIR (Ex.PC), but the mode and manner of incident narrated by them does not appeal to human prudence as it is not comprehendible that how the deceased was able to stand on his feet after sustaining first firearm injury on his head at the hands of Waheed Ahmad co-accused (P.O.) only to wait for the appellant to inflict the other firearm injury on his head. It is also discernable from the record that both the firearm injuries on the head of the deceased were inflicted from a short distance as according to the doctor (PW4), blackening/tattooing was present on firearm entry wounds. 'Keeping in view the force of velocity created by the fire shots from close range, there was no chance for the deceased, in normal course of nature, to remain in standing position after sustaining first fire shot, but the alleged eye- witnesses remained stubborn in their stance that both the firearm injuries were sustained by the deceased while he was in standing position. There is another circumstance that the incident had taken place in an open area located at a distance of about 25-minutes of travelling from the residences of alleged eye-witnesses but they could not advance any convincing reason for their availability at the spot at the relevant time. It is noteworthy that at one point Aksar Bibi complainant (PW6) stated that she along with her daughter and husband went to the place of occurrence for grazing cattle and at the other point, she stated that they had gone to their fields to harvest peanut crop by engaging a tractor blade. Similarly, Talib Hussain (PW7) also claimed to have witnessed the tragedy by chance while stating that he was grazing his cattle there. In this way, both the alleged eye-witnesses were nothing but chance witnesses, which aspect of the case prompts this Court not to place any reliance on them. Guidance in this respect can be sought from the case of "Nadeem alias Nanha Billa Sher v. The State" (2010 SCMR 949). Besides it is established from the statement of Aksar Bibi complainant (PW6) that Ikram, who was the owner of tractor engaged for harvesting peanut crop, was present at the spot at the time of occurrence, but he was never cited as an eye-witness of the case. In this way the prosecution has withheld the best available evidence, which inclines this Court to draw an inference within the meanings of Article 129(g) of Qanun-e-Shahadat Order, 1984 that had the above said Ikram been produced before the learned trial court, he would not have supported the story incorporated in crime report (Ex.PC) otherwise there was no plausible reason to let off such an important piece of evidence. Guidance has been sought from the cases of "Riaz Ahmad v. The State" (2010 SCMR 846) and "Khalid alias Khalidi and 2 others v. The State" (2012 SCMR 327), wherein a similar view has been discussed by the Hon'ble Supreme Court of Pakistan.
9. So far as the other pieces of evidence relied by the prosecution i.e. medical evidence, absconsion, recovery of weapon and motive are concerned, we are of the view that these limbs of the prosecution evidence are only helpful to its case when there exists some convincing, trustworthy and reliable direct or indirect evidence against the accused. In this case, the depositions of Aksar Bibi complainant (PW6) and Talib Hussain (PW7) could not inspire our confidence due to which no importance can be given to the remaining prosecution evidence against the appellant. Even otherwise, it is by now well settled law that medical evidence may confirm the other available evidence with regard to the seat and nature of injuries, the kind of weapon used and the time of occurrence but it would not itself identify the accused. Reference in this regard may be made to the case of "Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others"
(PLD 2009 SC 53) and "Mursal Kazmi alias Qamar Shah and another v. The State" (2009 SCMR 1410).
10. Similarly, it is well settled law that mere absconsion of accused is not the conclusive proof of his guilt and it is only a suspicious circumstance against the accused that he was found guilty of the offence. However, suspicions after all are suspicions and the same cannot be given the place of proof and the value of absconsion always depends on the facts of each case. The absconsion 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 absconsion 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.
11. Likewise, the motive was not directly attributed to the appellant and the same was alleged against Waheed Ahmad co-accused (P.O.). Furthermore, Muhammad Sharif S.I./I.O. (PW10) candidly admitted during his cross-examination that he had not joined any person from the village to verify the motive i.e. suspicion of Waheed Ahmad co-accused (P.O.) regarding illicit relation of his wife with the deceased. In such situation, the prosecution has not been able to connect the appellant with the murder of Shafqat Hussain deceased through the asserted motive.
12. We may observe here that the only significant piece of evidence available with the prosecution was in the shape of recovery of pistol .30 bore (P2) allegedly effected from the appellant and the positive report (Ex.PX) of the Punjab Forensic Science Agency, according to which three empties collected by the investigating officer during spot inspection were identified as having been fired from pistol (P2). In this regard, it is noteworthy that the appellant was arrested in connection with this case on 19.10.2017 and allegedly he got recovered pistol (P2) on 25.10.2017, but the Moharrar Malkhana i.e. Aqeel Ahmad 1322/HC (PW5) categorically stated that two parcels one of pistol .30 bore and the other of blood stained earth were handed over to him by the investigating officer on 02.11.2016, which is the date of incident. Another aspect which made the recovery of weapon as well as the positive report (Ex.PX) useless for the prosecution is that according to recovery memo (Ex.PO), the pistol (P2) was containing identification marks on its left side as "MADE IN PAKISTAN CAL 7.63MM30A" and "VPERPAWOR", but the pistol deposited in the Forensic Science Agency, according to report (Ex.PX), was marked as 23003-03934/16. The prosecution side has failed to clarify as to which of the two pistols .30 bore i.e. pistol .30 bore handed over by the investigating officer to the Moharrar Malkhana on the day of occurrence and pistol (P2) allegedly recovered from the appellant on 02.11.2016, had matched with three crime empties and under such discrepant and doubtful circumstances, no reliance can be placed on the recovery of pistol .30 bore as well as the positive report (Ex . PX).
13. Apart from the above noted discrepancies and shortcomings in the prosecution's case against the present appellant, it is worthwhile noticeable that Ghulam Murtaza co-accused, who was also assigned a specific role of inflicting blunt side of hatchet on the head of the deceased, has been acquitted of the charge by extending the benefit of doubt in his favour and the judgment of learned trial court to the extent of his acquittal has not been brought under attack by the prosecution. It is quite unconvincing that the appellant was held guilty on the basis of same evidence which had already been disbelieved to the extent of one accused without appreciating that no independent corroboration was available on record qua the appellant so as to distinguish the case of the appellant from the acquitted co-accused. Even the recovery of weapon as mentioned above is not connecting the appellant with the crime in question, whereas motive even according to the prosecution's own showing was against co-accused Waheed Ahmad (P.O.). In the light of guidelines as laid down in case of "Shahbaz v. The State" (2016 SCMR 1763), no reliance can be placed on the testimony of witnesses who had already been held unreliable to the extent of acquitted co-accused, without independent corroborative piece of evidence, which is conspicuously missing in the instant case.
14. The upshot of our discussion made above is that the prosecution has failed to prove its case against Muhammad Races appellant beyond any reasonable shadow of doubt. It is by now well settled law that not many circumstances creating doubt in the prosecution story are required to acquit an accused rather one circumstance creating doubt is enough to extend benefit of same to the accused. It is also golden principle of Islamic jurisprudence that it is better to acquit ten guilty persons than to convict a single innocent person. So by extending the benefit of doubt to Muhammad Raees appellant, we accept his criminal appeal and acquit him of the charge. He shall be released from the jail forthwith, if not required to be detained in connection with any other case.
15. Murder Reference No.44 of 2018 is answered in negative and death sentence passed by learned trial court against Muhammad Raees appellant is not confirmed.