MUHAMMAD TARIQ NADEEM, J:- Saif Ullah, appellant along with co-accused Mst. Tahira (since acquitted) faced tried in case FIR No. 856 dated 24.09.2014 for offences under sections 302, 109 and 34, P.P.C. registered at Police Station Civil Lines, District Faisalabad for causing the murder of Nadeem Shahid and after conclusion of trial, vide. judgment dated 24-02-2017, the learned trial Court convicted and sentenced him as under:-- Under section 302(b), P.P.C.
Life imprisonment as Ta'zir along with compensation of Rs. 5,00,0001- to the legal heirs of Nadeem Shahid, 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.
2. The appellant has filed the titled appeal against his conviction and sentence, whereas, a criminal revision has been preferred by the petitioner/ complainant for enhancement of sentence of life imprisonment to death of appellant and the complainant has also filed Petition for Special Leave to Appeal against acquittal of Mst. Tahira co-accused of the appellant. Since common question of law and facts are involved, therefore, all these matters are being disposed of by means of this single judgment.
3. The facts of the case have been stated by Ehsan Ullah complainant (PW-9) in his statement before the learned trial Court, which are hereby reproduced for narration of the same:- "Stated that Nadeem Shahid deceased was my real younger brother. On 24.09.2014 at 07:45 p.m. my brother Nadeem Shahid in his Auto Rickshaw was coming on Sessions Court Road, when he reached near CPLC Office, two un-known persons arrived and one of them made fire which hit on neck of deceased Nadeem Shahid and went through and through. It later on came into our knowledge that out of two accused persons, the one who made fire was Saif Ullah, the accused present in the Court. The people who gathered on the scene of occurrence intimated us through mobile phone of deceased Nadeem Shahid that deceased received fire arm injury and Rescue- 1122 had taken him to Civil Hospital, Faisalabad. We reached Civil Hospital, Faisalabad from where the deceased was shifted to Allied Hospital, Faisalabad. The deceased remained under treatment on death bed for about quarter to two months and ultimately he died on 16.11.2014.
The motive was that Nadeem Shahid deceased, my brother Abdullah and my nephew Awais were receiving threatening calls from two Mobile Phones Nos. 0306-8491356 and 0321-6925088."
I have heard the arguments advanced by the learned counsel for the appellant as well as learned Deputy Prosecutor General assisted by learned counsel for the complainant meticulously and scanned the record minutely.
5. I have noted that Saif Ullah appellant was not nominated in the FIR Ex.PA/1 and Ehsan Ullah complainant (PW-9) is not the eye-witness of the case, similarly, no eye-witness has been cited in the FIR (Exh.PA/1). Subsequently, the Ehsan Ullah/complainant (PW-9) introduced two eye- witnesses through written application (Exh.PH), in the light of same, Muhammad Qasim SI/ Investigating Officer (PW-15) recorded his supplementary statement on 24.10.2014 that at the time of occurrence due to anxiety he forgotten to incorporate the names of the eye-witnesses Abdul Rehman and Basharat Ali. After going through the supra mentioned application it manifests that no date has been mentioned on application (Exh.PH). However, Muhammad Qasim, S.I/I.O. (PW-15) has narrated in his cross-examination that on 24.10.2014 complainant appeared before him and got recorded his supplementary statement. I have noted that the prosecution has failed to explain the delay of one month in recording the statements of Abdul Rehman (PW-10) and Basharat Ali (PW-11). I have noted that Abdul Rehman (PW-10) and Basharat Ali (PW-11) have narrated in their examination-in-chief that they witnessed the occurrence in street lights. Similarly Abdul Rehman (PW-10) in his cross-examination stated as under:- "That he and deceased Nadeem Shahid used to live in the same house.
Further stated as under:-- "We witnessed the occurrence from the distance of about 5/6 feet. The occurrence lasted within seconds. I did not notice the registration number of rickshaw at the time of occurrence. I did not notice the registration number of the motorcycle used in the occurrence by the accused. I did not identify the rickshaw, which was driven by my deceased brother at the time of occurrence. I also did not identify my deceased brother at the time of occurrence. We did nor stay at the place of occurrence, as we saw the occurrence while travelling on the road. After about 30/45 minutes of the occurrence, we reached our house. It is not in my knowledge whether persons from the public stayed at the place of occurrence at the time of occurrence."
Similarly Basharat Ali (PW-11) has also described in his cross-examination that distance between them and deceased would be at Y4 feet. He further narrated the details of the occurrence. Relevant portion of his statement is reproduced as under:- "The accused were on a distance of 6/7 feet from us. The distance between us and deceased would be about 3/4 feet. We did not notice the registration number of rickshaw at the time of occurrence. We did not notice the registration number of the motorcycle used in the occurrence by the accused and we did not identify the deceased. The occurrence lasted for about 5/10 minutes. No person from public attracted there at that time. The deceased was husband of my niece. The distance between my house and house of deceased would be 5/6 k.m. At the time of occurrence deceased was wearing shalwar kameez of medium colour i.e nor dark neither light."
It manifests from prosecution evidence that Abdul Rehman (PW-10) and Basharat Ali (PW-11) are real brother and brother of father-in-law of deceased, respectively. It does not appeal to a prudent mind that if their close relative was murdered why they came back to their homes, soon after the occurrence despite approaching to the police, further more why they remained silent for one month. In the light of supra mentioned facts, I have no hesitation to hold that the Abdul Rehman (PW-10) and Bashrat Ali (PW-11) were not present at the time and place of occurrence and complainant has introduced them subsequently as eye-witnesses. The Courts have always deprecated such kind of statements, which are made with the purpose to strengthen the case of the prosecution at the behest of the police officials or some other ulterior motives to get the suspect convicted by hook or crook. Nomination through supplementary statements has always been deprecated and disliked by the Hon'ble Supreme Court and has never been appreciated for the same being afterthought. This aspect, alone has badly shattered their credibility and under the given circumstances no implicit reliance can be placed on such like tainted and manufactured evidence. Dependence is put upon the instances of "Kashif Ali v. The Judge Anti-Terrorism, Court-11, Lahore and others" (PLD 2016 SC 951) and "Akhtar Ali and others v. The State" (2008 SCM R 6). In the eventuality of supra mentioned facts, I am of the considered view that the above mentioned eye- witnesses could not justify the reason given by them for their presence at the place of occurrence at the relevant time. They are, therefore, chance witnesses and as such their evidence is not free from doubt. I discard their evidence. The Hon'ble Supreme Court of Pakistan in the case of "Mst.
Sughra Begum and another v. Qaiser Pervez and others" (2015 SCM R 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 cases of "Muhammad Irshad v. Allah Ditta and others" (2017 SCMR 142), "Muhammad Asif v. The Stare" (2017 SCMR 486) "Sufyan Nawaz and another v. The State and others" (2020 SCMR 192) and "Naveed Asghar v. The State" (PLD 2021 SC 600).
6. It is also noteworthy that witnesses of ocular account Abdul Rehman (PW-10) and Basharat Ali (PW-11) are not witnesses of inquest report (Exh.PG) and postmortem report (Exh.PF) of the deceased. If they were present at the time and place of occurrence, they must have been the witnesses of inquest report and postmortem report. Similarly, they should have escorted the dead body to the hospital being the close relatives and their names should have been mentioned in the post mortem report in the column of identification of the dead body. I have no hesitation to hold that Abdul Rehman (PW-10) and Bashrat Ali (PW-11) were not present at the place of occurrence at the relevant time and they have not witnessed the occurrence; they have been introduced by Ehsan Ullah complainant (PW-9) after one month of the alleged occurrence. It is noteworthy that witnesses introduced by Ehsan Ullah (PW-9) complainant in his supplementary statement, are Abdul Rehman (PW-10) and Basharat Ali (PW-11) are brother and brother of father in law of the deceased, respectively. If they were present at the time and place of occurrence, why they had not inform the police and why they came back to their homes when their close relative was murdered.
The conduct of supra mentioned PWs is highly doubtful and unnatural. The presence of the above- mentioned eye-witnesses at the spot at the relevant time was not natural. Reliance is placed upon the case laws titled as "Nadeem alias Kala v. The State and others" (2018 SCM R 153), "Abdul Jabbar alias Jabri v. The State" (2017 SCM R 1155) and "Khalid Mehmood and another v. The State and others" (2021 SCM R 810).
7. There is another intriguing aspect of the case is that no PWs has been mentioned in the FIR (Exh.PA/I) and eye-witnesses namely Abdul Reman (PW-10) and Bashrat Ali (PW-11) were first time introduced by the prosecution on 24.10.2014 in the supplementary statement of Ehsan Ullah complainant (PW-9) and there was no other eye witness of the alleged occurrence. As per prosecution story, the Investigating Officer had mentioned the presence of PWs at point No. 4 in Exh.PT. which was prepared on 24.09.2014. This discrepancy also makes the prosecution case of doubtful.
8. The prosecution has also relied upon the identification parade of the appellant that Saif Ullah appellant was rightly identified by Abdul Rehman (PW-10) and Bashrat Ali (PW-11), I have already held in preceding para that both the PWs are related and chance witnesses and their evidence is not worthy of reliance. Identification parade has no evidentiary value and not helpful to the prosecution case.
9. As per story of prosecution case mentioned in Exh.PA/I that complainant's brothers namely Nadeem Shahid (deceased), Abdullah and nephew were receiving threatening phone calls from cell Nos. 0321-6925088 and 0306-8491356. I have noted that cell No. 0306-8491356 was identified registered in the name of one Khalid Mehmood who was arrested by the police and also obtained his physical remand for 2 days from the competent Court of jurisdiction. This fact is also admitted by Ehsan Ullah complainant (PW-9) in his cross-examination. The relevant portion of his cross- examination as under:- "During investigation we showed suspicion that one Khalid Mahmood son of Khalil Ahmad might have involved in the occurrence. The said Khalid Mahmood was not got identified by the PW Abdul Rahman and Basharat"##TE## Muhammad Qasim, S.I / I.O (PW-15) has stated with respect to the name of the Khalid Mehmood in his cross-examination; his relevant portion of cross-examination is hereby reproduced as under:- " On 24.10.2014, complainant shown his suspicion upon Khalid Mahmood son of Khalil Ahmad, caste Arain, resident of Saifabad, Faisalabad before me. I did not send the said Khalid Mahmood to judicial custody for identification parade. As Khalid Mahmood pleaded his innocence, therefore, I did not sent him to judicial lock up for identification parade. At the time of arrest of accused Saif Ullah, it was also his first version that he is innocent. 1 did not show the Khalid Mahmood to the PWs Basharat and Abdul Rehman to identify him as accused. I obtained physical remand for two days of said Khalid Mahmood. During interrogation complainant told that the one of the sims, which I mentioned in the FIR is in use of said Khalid Mahmood. In complaint Exh. PA complainant did not mention the name of the any eye-witness."
So far as the other sim number 0321-6925088 is concerned, it's owner could not be traced during the course of investigation nor any evidence was produced in this respect before the learned trial Court.
10. After going through the narration of FIR it transpires that no source of light has been described at the place of occurrence. Similarly, in rough site plan Exh.PT no source of light has been described whereas in scaled site plan (Exh.PD) on point No. 2 availability of electric bulb has been shown but the same was not taken into possession by the Investigating Officer. In this way, the prosecution has failed to establish the fact of such availability of source of light and in absence of their inability to do so, I cannot presume the existence of such a light source. Reliance is placed on the case law titled as Gulfam and another v. The State (2017 SCMR 1189).
11. Insofar as recovery of pistol 30 caliber (P-1) through seizure memo. Exh. PP at the pointation of the appellant Saif Ullah is concerned, I have noted that the witnesses of this recovery arc Abdul Rehman (PW.10 ) and Basharat Ali (PW.11 ) who were closely related to the deceased and I have already disbelieved their evidence in the paragraph No. 7 of this judgment. More so, this piece of recovery is inconsequential and not helpful to the prosecution because the crime empty and pistol were sent together to the Office PFSA on 28.01.2015 after the arrest of the accused. In this context, positive report of PFSA has also lost its significance. Wisdom is derived from the case law reported as Nazeer Ahmad v. The State (2016 SCMR 1628) and Asad Rehmat v. The State and others (2019 SCMR 1156).
12. As far as objectionable pictures of Saif Ullah appellant with his acquitted co-accused Mst. Tahira secured vide recovery memo. (Exh.PM) is concerned, no photographer has been produced in the witness box nor the pictures were got analyzed from the Punjab Forensic Science Agency, Lahore.
13. So far as possession memo. of CDR Exh.PAA is concerned that is also not helpful to the prosecution case because both the supra mentioned PWs have not been found registered in the name of Saif Ullah appellant.
14. The motive alleged by the prosecution is that Nadeem Shahid deceased and his brother Abdullah as well as their nephew were receiving threatening phone calls from cell Nos. 0306- 8491356 and 0321-6925088 but subsequently while taking the u-turn the prosecution introduced another motive that deceased Nadeem Shahid was murdered by Saif Ullah appellant and Mst.
Tahira, who had illicit relations inter se Tahira was happened to be wife of Muhammad Siddique (brother) of Nadeem Shahid and Nadeem Shahid deceased oftenly forbade his sister-in-law Mst.
Tahira upon which she was annoyed with Nadeem Shahid. I have noted that prosecution has failed to prove the fact of illicit relationship of Saif Ullah appellant with acquitted co-accused Tahira Bibi, no oral as well as documentary evidence has been produced in support of motive alleged by the prosecution. In this backdrop, I hold that there is a haunting silence with regard to minutiae of motive alleged by the prosecution, thus, I discard the same. The law is settled by now that if the prosecution asserts a motive but fails to prove the same then such failure on the part of the prosecution may react against a sentence passed against a convict on the charge of murder. So I have no hesitation in holding that the prosecution has failed to prove the motive setup by it. A reference in this respect may be made to the case of "Noor Muhammad v. The State" (2010 SCMR 97) "Sardar Bibi and another v. Munir Ahmed and others" (2017 SCMR 344) and "Manzoor Ahmed Shah and others v. The State and others" (2019 SCMR 2000).
15. After having looked into the prosecution case from all angles, I have observed that the case against the appellant is of doubtful in nature and 'his conviction and sentence cannot be maintained on the basis of such type of shaky and unreliable evidence. It is well settled by the Apex Court of the country that in case of doubt, its benefit must go to the accused not as a matter of grace, but 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), "Muhammad Akram v. The State"
(2009 SCMR 230),"Khalid Mehmood and others v. The State" (2011 SCMR 664), "Arshad Khan v.
The State" (2017 SCMR 564), "Muhammad Mansha v. The State" (2018 SCMR 772), "Asia Bibi v. The State and others" (PLD 2019 SC 64), "Muhammad Ashraf alias. Acchu v. The State" (2019 SCMR 652) and "Najaf Ali Shah v. The State" (2021 SCMR 736).
16. After considering all the pros and cons of the case, this Court is of the considered view that the prosecution has failed to prove its case against the appellant beyond any shadow of doubt, therefore, this appeal is allowed, the impugned judgment is set-aside and the appellant Saif Ullah is acquitted of the charge. He is in jail; he be released trice if not required in any other criminal case.
17. Insofar as P.S.L.A. No. 101 of 2017 seeking reversal of acquittal recorded by the learned trial court in favour of Mst. Tahira, respondent No.2 is concerned, I have gone through the reasoning recorded by the learned trial court in support thereof and found it in consonance with the evidence brought on the record and as such reflected a possible view. The learned counsel for the petitioner remained unable to persuade this Court to differ with the reasoning's recorded by the learned trial court in acquitting the said respondent No.2. No illegality and perversity has been pointed out in the impugned judgment as far as acquittal of respondents through the impugned judgment.
18. The learned trial court has rightly acquitted respondent No.2 while taking into consideration the discrepancies in the prosecution evidence. It is well settled law that every accused, after his acquittal, learns a double presumption of innocence and to rebut the same heavy onus lay on the prosecution but it had failed to discharge the same. Reliance is placed upon the case "Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others" (PLD 2009 SC 53). The judgment of the learned trial court in the above backdrop cannot be said to be perverse and the reasons recorded therein are neither fanciful, speculative nor artificial. It is golden principle in the arena of criminal jurisprudence that benefit of doubt always goes to the accused. Reliance can be placed on "Jehangir v. Aminullah and others" (2010 SCMR 491).
19. For what has been discussed above this, petition for Special leave to Appeal having no merits, is dismissed and leave is hereby refused.
20. As a natural corollary, criminal revision filed by Ehsan Ullah, complainant for enhancement of sentence of life imprisonment to death of appellant and compensation is dismissed.