MUHAMMAD TARIQ NADEEM, J. Nasir Ali Raja alias Asif, appellant along with his co-accused Sandal Bibi (since acquitted), faced trial in case FIR No.100 of 2015, under sections 302, 34 and 109, P.P.C. registered at Police Station Gulyana, Tehsil Kharian, District Gujrat for causing the murder of Muhammad Mubashar son of the complainant and at the conclusion of trial in the said case, the learned trial court while acquitting Mst. Sandal Bibi co-accused, convicted and sentenced the appellant as under:- Under section 302(b), P.P.C.
Life imprisonment along with compensation of Rs. 5,00,000/- to the legal heirs of Muhammad Mubashar, deceased, under section 544-A, Cr.P.C. and in default thereof to further undergo 06 months' S.I.
Benefit of section 382-B, Cr.P.C. was extended to the appellant.
The appellant has filed the titled appeal against his conviction and sentence, a criminal revision has also been preferred by Raja Muhammad Zareen, complainant for enhancement of sentence from life imprisonment to normal penalty of death to appellant. Since common questions of law and facts are involved, therefore, both these matters are being disposed of by means of this single judgment.
2. The facts of the case as stated by Raja Muhammad Zareen, complainant (PW.10) in his Fard Biyan (Ex.PN) are that he (complainant) was resident of Masoom Pur District Jhelum and was a wage earner by profession, who was shifted in the house of his in-laws situated at village Pindi Hashim along with his family members. Two months ago, in-laws of complainant asked him to vacate the said house and after locking the said house, he (complainant) shifted to his native village Masoompur and on 15-04-2015 at 11:00 a.m., complainant along with his son Muhammad Mubashar (since deceased), brothers Muhammad Yasin and Muhammad Pervaiz reached at village Pindi Hashim in order to collect his luggage, as soon as, they reached at the door of said house, all of a sudden, Nasir Ali Raja alias Asif, appellant armed with .30 bore pistol and Muhammad Usman (since PO) also armed with pistol .30 bore emerged there. Nasir Ali Raja alias Asif, appellant fired at Muhammad Mubashar son of the complainant, which landed at the right thigh of Muhammad Mubashar, Muhammad Usman (PO) also fired at Muhammad Mubashar, which hit on his right thigh. Muhammad Mubashar fell down and the accused Nasir Ali Raja alias Asif fired at Muhammad Mubashar (since deceased), which hit at his chest and abdomen. Nasir Ali Raja alias Asif, appellant again fired three consecutive fire shots at Muhammad Mubashar (since deceased) which landed at his back. They raised hue and cry and the accused fled away from the spot. The injured was shifted to Civil Hospital Kharain, where he succumbed to the injures and this occurrence had taken place at the abetment of Sandal Bibi (since acquitted).
3. The motive behind the occurrence was a dispute of a house. I have anxiously considered the arguments put forth by the learned counsel for the appellant as well as learned Deputy Prosecutor General for the State assisted by -learned counsel for the complainant and scanned the record minutely.
4. In an attempt to make it a case of direct evidence against the appellant on the charge of murder of Muhammad Mubashar (since deceased), the prosecution has heavily relied upon the statements of Raja Muhammad Zareen, complainant (PW.10) and Muhammad Yaseen (PW.11). Both the PWs are real father and paternal uncle of Muhammad Mubashar (since deceased) respectively. The alleged occurrence took place in the area of village Pindi Hashim situated at a distance of 4-1/2 kilometres away from Police Station Gulyana. The presence of the above- mentioned eye-witnesses at the spot at the relevant time was not natural. It was, therefore, mandatory for the above mentioned eye-witnesses to justify their presence at the place of occurrence at the relevant time through some cogent reason but the supra mentioned PWs have failed to give any plausible reasoning qua their presence at place of occurrence at the relevant time, thus, they are chance witnesses. According to the statements of both the eye-witnesses they were not residents of the vicinity where the occurrence took place. Raja Muhammad Zareen, complainant (PW.10) during his cross-examination stated as under:- ".....It is correct that I had got recorded in complaint Ex.PN that "When we reached at our place of residence suddenly." The occurrence took place exact in front of gate of our previous place of residence in village Pindi Hashim. I had got recorded in my complaint Ex.PN that my deceased son received eight fire shots. I had not got recorded in my complaint Ex.PN that occurrence took place in front of the house of Adalat. I had not recorded in my examination in chief that occurrence took place in front of house of Adalat............ None of the eye-witness belongs to village Pindi Hashim.........."
He (PW.10) further stated as under:- "...I have stated the words that "I was going behind my son Mubashar" in the complaint. Ex.PN. I do not know that whether the said words were written or not. Confronted with his complaint Ex.PN, where it is not so recorded...."
5. There are other aspects of the case, which makes the presence of eye-witnesses at the relevant time and place of occurrence highly doubtful in nature. For an example Raja Muhammad Zareen, complainant (PW.10) during his examination-in-chief stated that he along with his family has vacated the house of his in-laws two months prior to the occurrence. Relevant lines of his examination-in-chief are described infra:- "........... I along with my family was living at Pindi Hashim, which is the village of my in-laws. On the asking of Sandal Bibi, wife of my brother-in-law Raja Ghazanfar (sala), I along with my family had vacated the house two months prior to the current occurrence...."
In the light of supra-mentioned reproduced portion of examination-in-chief of Raja Muhammad Zareen, complainant (PW.10), when complainant had already vacated the house of his in-laws two months prior to the occurrence then there was no need to go to the same house on 15-04-2015. In this way, there is a contradictory stance of Raja Muhammad Zareen, complainant (PW.10) qua visiting the house in dispute.
I have also noted that according to the statement of Raja Muhammad Zareen, complainant (PW.10), on 14-04-2015 his brother Javed, his wife and his nephew Aurangzaib had gone to Lahore in the house of accused party to offer condolence on the death of grandson of Sandal Bibi-co- accused (since acquitted) and son of Nasir Ali Raja alias Asif, appellant, where they heard that Sandal Bibi, co-accused (since acquitted) asked her sons Nasir Ali Raja alias Asif, appellant and Usman (PO) that Zareen is not vacating their house and they should kill his son Mubashar.
Whereas, Muhammad Yaseen (PW.11) has stated in his examination-in-chief that one day prior to the occurrence, Javed and Sikandar had went to Lahore in the house of Nasir etc. to offer "Fateh" there and heard the conspiracy hatched by the accused persons. Relevant portion of his statement reproduced as under:- "......One day prior to the occurrence, Javed and Sikandar had went to Lahore in the house of Nasir etc. to offer 'Fateh' there. Where the accused were consulting with each other, the said persons told us...."
It is noteworthy that when the complainant's wife as well as other close relatives had already come to know regarding supra-mentioned conspiracy, whey they had not disclosed the said fact to the complainant and Muhammad Mubashar, (since deceased), especially when they had returned to their homes on 14-04-2015. Relevant lines of cross-examination of Raja Muhammad Zareen, complainant (PW.10) are mentioned blow:- "......the above mentioned three persons who had gone to Lahore to offer condolence, had returned on the same day at about 9.00/10.00 p.m. in village "Masoom Pur"...
It does not appeal to a prudent mind that if a son of a person had died one day before, he would indulge in such like heinous crime. Moreover, when the dispute between the appellant and complainant party was already existed then there was no occasion for the complainant party to visit the house of the appellant situated at Lahore for condolence upon the demise of his son.
Moreso, it is also evident from the statement of Raja Muhammad Zareen, complainant (PW.10) that an FIR No.231/2008, under sections 302, 34, P.P.C., Police Station Saddar Jhelum was lodged against him and he left his permanent abode situated at village Masoompur and shifted in the house of his in-laws at village Pindi Hashim in the year 2009 due to his nomination in the above-mentioned murder case. He (PW.10) further stated in his examination-in-chief that two months before the alleged occurrence, he vacated the house of his in-laws at the asking of Sandal Bibi (acquitted co- accused) and went to his village Masoompur, Tehsil and District Jhelum, then what was the reasoning of the complainant to go to the house of the accused party.
In the eventuality of supra mentioned facts, I am of the considered view that the above mentioned eye-witnesses could not justify any reason for their presence at the place of occurrence at the relevant time. They are, therefore, chance witnesses and as such their evidence is also not free from doubt. The Hon'ble Supreme Court of Pakistan in the case of "Mst. Sughra Begum and another v. Qaiser Pervez and others" (2015 SCMR 1142) at para No.14, observed regarding the chance witnesses as under:- "14... A chance witness, in legal parlance is the one who claims that he was present on the crime spot at the fateful time, albeit, his presence there was sheer chance as in the ordinary course of business, place of residence and normal course of events, he was not supposed to be present on the spot but at a place where he resides, carries on business or runs day to day life affairs. It is in this context that the testimony of chance witness, ordinarily, is not accepted unless justifiable reasons are shown to establish his presence at the crime scene at the relevant time. In normal course, the presumption under the law would operate about his absence from the crime spot. True that in rare cases, the testimony of chance witness may be relied upon. provided some convincing explanations appealing to prudent mind for his presence on the crime spot are put forth, when the occurrence took place otherwise, his testimony would fall within the category of suspect evidence and cannot be accepted without a pinch of salt.."
Similar view was reiterated in the case of "Muhammad Irshad v. Allah Ditta and others" (2017 SCMR 142). Relevant part of the said judgment at Para No.2 reads as under:- "..........Muhammad Irshad complainant (PW8) and Rab Nawaz (PW9) were chance witnesses and the stated reason for their presence with the deceased at the relevant time had never been established before the trial court through any independent evidence...."
Likewise, in the case of "Sufran Nawaz and another v. The State and others" (2020 SCMR 192) at Para No.5, the Apex Court of the country was pleased to observe as under:- "......He admitted that in his statement before police, he had not assigned any reason for coming to village on the day of occurrence. In these circumstances, complainant Muhammad Arshad (PW.7) is, by all means, a chance witness and his presence at the spot at the relevant time is not free from doubt."
6. I have also noted that as per prosecution case, the appellant along with his co-accused had made repeated fire shots at the body of deceased. The complainant and other eye-witnesses did not receive even a single scratch. The PWs are closely related to the deceased, they were at the mercy of the appellant and his co-accused, why they were let off by the appellant and his co- accused to become a witness against them during the trial. In a similar situation, in case titled as "Najaf Ali Shah v. The State" (2021 SCMR 736) the august Supreme Court of Pakistan observed as under:- ".....It seems odd that inspite of the arms carried by the accused being freely discharged their overt act at the place of occurrence, the complainant did not receive even a single scratch and instead in the midst of such commotion, she noted with great accuracy the persons who fired and the parts of the body where their respective fires hit the deceased.."
7. Another intriguing aspect of the case, which cannot be lost sight of is that the witnesses of ocular account, Raja Muhammad Zareen, complainant (PW.10) and Muhammad Yaseen (PW.11) are not witnesses of inquest report (Ex.PJ) and postmortem report (Ex.PH) pertaining to Muhammad Mubashar (deceased). If they were present at the scene of the occurrence at the relevant time, they must have been the witnesses of inquest report. Similarly, they should have escorted the dead body to the hospital being the close relatives and their names should have been incorporated in the post mortem report in the column of identification of the dead body. This fact has also constrained me to hold that supra mentioned PWs were not present at the time and place of occurrence. Reliance is placed upon the following case laws titled as "Abdul Jabbar alias Jabri v.
The State" (2017 SCMR 1155) and "Nadeem alias Kala v. The State and others" (2018 SCMR 153).
8. As far as the medical evidence is concerned, it evinces from the record that even the medical evidence runs contrary to the prosecution's case as according to the written application for registration of FIR (Ex.PN) submitted by Raja Muhammad Zareen, complainant (PW.10), his son Muhammad Mubashar (since deceased) received two injuries at right thigh, two injuries at his chest and one injury at the abdomen, similarly three injuries on back of deceased but no injury is found existent at abdomen whereas injuries on chest as well as one injury on right thigh are exit wounds and this fact has been described by the Doctor Jamshaid Dilawar (PW.7). For better appreciation the injuries noted by the Doctor Jamshaid Dilawar (PW.7) in his PMR (Ex.PD) are reproduced as under:- Injuries Injury No.1-A Fire arm entry wound measuring 1x2 cm with inverted margins on right lumber region.
Injury No.1-B Fire arm exit wound 2 x 2 cm on right side of chest.
Injury No.2-A Fire arm entry wound 1 x 1 cm with inverted margins on right lumber region later to injury No.1.
Injury No.2-B Fire arm exit wound 2 x 2 cm on left side of chest at nipple.
Injury No.3-A Fire arm entry wound 1 x 1 cm with inverted margins at right lumber region near to back bone.
Injury No.3-B Fire arm exit wound 2 x 2 cm at right iliac fossa.
Injury No.4-A Fire arm entry wound 1 x 1 cm with inverted margins at right buttocks, blackening was present.
Injury No.4-B Fire arm exit wound 2 x 2 cm at anterior side of right thigh.
Injury No.5-A Fire arm entry wound 1 x 1 cm at posterior side of thigh, blackening was present.
Injury No.5-B Fire arm entry wound 1 x 2 cm at anterior side of right thigh above knee.
In this way, there is a material contradiction between the statements of the eye-witnesses and medical evidence. It is, therefore, not safe to rely upon the statements of the eye-witnesses, in the peculiar circumstances of the instant case. I fortify my view from the case laws titled as "Muhammad Idrees and another v. The State and another" (2021 SCMR 612) and "Khalid Mehmood and another v. The State and others" (2021 SCMR 810).
9. Insofar as recovery of pistol 30 bore (P.6) on the disclosure and pointation of the appellant from his residential house vide recovery memo (Ex.PO) is concerned, the same being purely corroboratory in nature cannot alone be considered to sustain conviction on a capital charge.
Reliance is placed upon the case titled as "Muhammad Mansha v. The State" (2018 SCMR 772).
I have noticed that while conducting the recovery proceedings no independent witness of the vicinity was associated by the Investigating Officer during the recovery proceedings, this fact makes the such recovery doubtful in nature. Even otherwise, the report of the Punjab Forensic Science Agency, Lahore (Ex.PS); is only to the extent of its being in mechanical operating condition.
In these circumstances of the case, I am of the view that the said recovery of pistol 30 bore (P.6) is inconsequential and not helpful to the prosecution against the appellant and the learned trial court has rightly disbelieved the recovery of weapon of offence at the instance of the appellant.
Reliance is placed upon the case titled as "Khalid Mehmood and another v. The State and others"
(2021 SCMR 810), wherein it has been held as under:- "6. No empty was secured from the spot by the investigating agency, therefore, the report of FSL is confined to working condition of 44 bore rifle allegedly recovered at the instance of the petitioner.
This piece of evidence has rightly been discarded from consideration by the learned High Court in Para No.13 of the impugned judgment...."
10. The motive alleged by the prosecution has already been disbelieved by the learned trial court.
Even otherwise, it was an oral assertion of the complainant and no material evidence in the shape of ocular or documentary was produced to substantiate the motive alleged by the prosecution.
Although, the prosecution is not under obligation to establish a motive in every murder case but it is also well settled principle of criminal jurisprudence that if prosecution sets up a motive and fails to prove it, then, it is the prosecution who has to suffer and not the accused. I very respectfully rely on the cases of "Muhammad Ilyas and another v. Ameer Ali and another" (2020 SCMR 305) and "Liaqat Ali and another v. The State and others" (2021 SCMR 780).
11. The only circumstance in the account of the prosecution is the abscondence of the appellant but on this point, the law is by now well settled that the same alone is not sufficient to record conviction on a capital charge and it can be used only as a corroboratory and confirmatory in support of ocular account but this court has already disbelieved the ocular account in paragraph No.5 of this judgment. The absconsion of the accused may be relevant qua the guilt or innocence of accused, which is to be decided keeping in view overall facts of the case. In this respect, Reliance is placed upon the case law titled as "Rohtas Khan v. The State" (2010 SCMR 566) wherein Para 12 of the judgment the Hon'ble Supreme Court of Pakistan observed as under:- "12 ....The learned High Court gave importance to the abscondence of the appellant. No doubt it is a relevant fact but it can be used as a corroborative piece of evidence, which cannot be read in isolation but it has to be read along with substantive piece of evidence. This Court in the case of Asadllah v. Muhammad Ali, PLD 1971 SC 41 observed that both corroborative and ocular evidence are to be read together and not in isolation. As regards abscondence this Court in the case of Rasool Muhammad v. Asal Muhammad, 1995 SCMR 1373 observed that abscondence is only a suspicion circumstance. In the case of Muhammad Sadiq v. Najeeb Ali, 1995 SCMR 1632 this Court observed that abscondence itself has no value in the absence of any other evidence. It was also held in the case of Muhammad Khan v. State, 1999 SCMR 1220 that abscondence of the accused can never remedy the defects in the prosecution case. In the case of Gul Khan v. State, 1999 SCMR 304 it was observed that abscondence per se is not sufficient to prove the guilt but can be taken as a corroborative piece of evidence. In the cases of Muhammad Arshad v. Qasim Ali, 1992 SCMR 814, Pir Badshah v. State 1985 SCMR 2070 and Amir Gul v. State 1981 SCMR 182, it was observed that conviction and abscondence alone cannot be sustained. In the present case, substantive piece of evidence in the shape of ocular account has been disbelieved, therefore, no conviction can be based on abscondence alone."
I also fortify my view from the dictum laid down in case titled as "Muhammad Sadia v. The State"
(2017 SCMR 144), wherein, it has been held as infra:- " ...The fact that the appellant absconded and was not traceable for considerably long period of time could also not be made sole basis for his conviction when the other evidence of the prosecution is doubtful as it is riddled with contradictions."
Similarly, in the case of "Wajeeh-ul-Hassan v. The State" (2019 SCMR 1994) the Hon'ble Supreme Court of Pakistan was pleased to observe as under:- "...Absconsion cannot be viewed as a proof for the crime. People stay away from law for a variety of reasons not necessarily compatible with the hypothesis of guilt; to avoid the impending wrath of opponents in hostile environments, more often than not compel even the innocent into recusal of safety...."
Further reference can be made to the case titled as "Pervaiz Khan and another v. The State" (2022 SCMR 393).
12. After analyzing the prosecution case from every angle, I have concluded that the case to the extent of the appellant is replete with doubts and his conviction and sentence cannot be upheld on the basis of such shaky and untrustworthy evidence. The Hon'ble apex Court of the country time and again held that in the event of a doubt, the benefit must be given to the accused not as a matter of grace, but as a matter of right. Reliance is placed upon case laws titled as "Tariq Pervez v. The State" (1995 SCMR 1345), "Ayub Masih v. The State" (PLD 2002 SC 1048) and "Najaf Ali Shah v. The State" (2021 SCMR 736).
The prosecution must prove its case against an accused person beyond a reasonable doubt, and if it fails, the accused is entitled to the benefit of the doubt. The golden rule, also known as the rule of benefit of doubt, is essentially a rule of prudence that must be followed when dispensing justice in accordance with the law. In the light of above circs, this Court concludes that the prosecution has failed to prove its case to the extent of the appellant beyond a reasonable doubt. As a result, the impugned judgment is set aside and the appellant, Nasir Ali Raja alias Asif is acquitted of the charge. He is in jail, he be released forthwith if not required in any other ease.
13. As a natural corollary, criminal revision filed by Raja Muhammad Zareen, complainant for enhancement of sentence from life imprisonment to normal penalty of death is dismissed.