ANWAARUL HAQ PANNUN, J.---This single judgment shall decide both the above titled matters, arisen out of the judgment dated 08.02.2022, passed on the conclusion of trial in case/FIR No. 431, dated 27.03.2018, registered for offence under Sections 302/386/427/34, P.P.C. at Police Station Madina Town, Faisalabad, whereby the learned Addl. Sessions Judge, Faisalabad, found the appellant guilty of committing "Qatl-e-Amd" of Irtaza' son of the complainant, hence convicted him under Section 302(b), P.P.C. and sentenced to undergo Rigorous Imprisonment for life along with compensation of Rs.6,00,000/- payable to the legal heirs of the deceased under Section 544-A of Cr.P.C. and in default thereof to further undergo Simple Imprisonment for, a period of six months with the benefit under Section 382-B, Cr.P.C. The appellant, has however been acquitted of the charges under Sections 386/440/34, P.P.C. The co-accused Ihsan Aziz while extending him the benefit of doubt, has also been acquitted of the charge, in toto.
2. The prosecution's case is based on the complaint in writing (Exh:PA) submitted by Zaheer-ud-Din Babar, PW-1, on the basis of which formal FIR (Exh:PA/1) was registered that on 26.03.2018 at evening time, the complainant along with his son Irtaza, Tahir Mehmood and Shah Zaib Gull, in order to purchase a vehicle, arrived at Yasir Ikram Motors, Susan road, Faisalabad. They, found no vehicle of their choice, out of a large number of vehicles they checked. While sitting there, they however remained busy in mutual conversation with each-other. At about 1.45 a.m. (night), the accused/ appellant Zeeshan Iftikhar, Muhammad Ahsan Jutt, since acquitted, along with their two unknown accomplices, armed with firearms, came there. After alighting from his vehicle, the appellant made a demand from Irtaza for the payment of "Bhatta", who declined the same, which ensued into an altercation between them. The appellant after taking out a rifle from his vehicle made a straight fire shot hitting on inner and outer side of right arm of Irtaza, the accused/appellant made second fire shot while Irtaza tried to run backward, which hit on the right side of his chest under the right armpit, after receiving injuries, Irtaza, fell on the ground. The indiscriminate firing in the meanwhile made by all the accused persons, caused damage to the mirrors, screens etc. of the vehicles, bearing Registration Nos. FSK/495, FSK/8100, FDK/1632, 5966/LOG, FDX/4445, 9738/FSP, FS/111, BZ/803, 7514/LEC and 3550/LEB, which had been parked there. Many bullets, while crossing through the shutters/shades of shops, hit on wall of room. The firing, created a sense of terror and panic in the area. Either by fleeing away or by hiding themselves behind shutters, the people present there succeeded to save their lives. Some persons while running away even left their shoes at the place of occurrence. The motive behind the occurrence was that prior to the occurrence, the accused persons had demanded "Bhatta" from the deceased, who refused to succumb to their demand and due to non-fulfilment of their demand, they nourished a grudge against the deceased and thus committed the alleged occurrence. Despite the injured Irtaza was shifted to Civil Hospital, Faisalabad, he succumbed to his injuries.
3. On conclusion of usual investigation and submission of challan, when confronted with the charges, the appellant pleaded not guilty and claimed trial. The prosecution had produced as many as 12 PWs to bring the charge at home. While tendering Forensic DNA and Serology Analysis Report and Firearms and Tool-marks Examination report issued by Punjab Forensic Science Agency, Lahore as Exh:PX and Exh:PY, the learned Prosecutor closed the prosecution's evidence.
While refuting the prosecution's evidence, in his statement under Section 342, Cr.P.C, the appellant reiterated his plea of innocence and alleged his involvement falsely in the case. Without examining him under Section 340(2), Cr.P.C. the appellant produced Muhammad Wasiq, Building Inspector, FDA as DW-1 and the document Exh:DE and Exh:DF as his defence. The learned trial Court on the conclusion of trial acquitted the co-accused Ihsan Aziz and convicted and sentenced the appellant as aforesaid.
4. Arguments heard. Record perused.
5. It may be observed that while acquitting the appellant of the charge under Sections 386 and 440, P.P.C. the learned trial Court, for good reasons, had already disbelieved the prosecution's story qua the alleged motive behind the occurrence. The alleged recoveries of Toyota Corolla Car P-8 bearing Registration No. LED-9705, seized through recovery memo Exh:PJ and Kalashnikov P-9, seized through recovery memo Exh:PK, allegedly made on pointing out of the appellant from his house, had also been discarded. The prosecution's case therefore presently rests upon ocular account and medical evidence. Dr. Javaid Iqbal, Demonstrator (PW-8) conducted postmortem examination over the dead body of Irtaza deceased, compiled the postmortem report Exh:PN and observed following injuries on the body of the deceased Irtaza:--
1. a) A firearm wound of entry 1 1/2 cm x 1 1/2 cm on posterior outer, just below the shoulder part of right arm. Tattooing marks were present.
1.b) A firearm wound of exit 1 cm x 1 cm on inner side, upper part of right arm, 3 cm from roof of armpit.
1.c) A firearm re-entry wound 1 cm x 1 cm, 3 cm from roof of armpit on outer part right side of chest.
2. A firearm wound of entry 1 1/2 cm x 1 cm, it was 4 cm below the injury No.1(a) on outer and upper part of right arm, tattooing marks were present around it.
According to postmortem report as well as Dr. Javaid Iqbal (PW-8), the death occurred on 27.3.2018 at 2.10 a.m., he received dead body in dead house at 4.10 a.m., the police provided him the relevant documents for autopsy at 10.50 a.m. and consequently he conducted postmortem at 1I.O0 a.m. According to his opinion, death in this case occurred due to injury No.1 inflicted by firearm, severely injured both the lungs and blood vessels, which led to hemorrhagic shock and death. Both the injuries were ante mortem. Injury No.1 was sufficient to cause death in ordinary course of nature. The probable time that elapsed between injuries and death was 10 to 20 minutes and between death and post mortem was within 12 hours. The above noted delay in conducting post mortem examination over the dead body of the deceased, in the given circumstances of this case, when the mortuary was situated within the bounds of the city Faisalabad, is an intriguing feature, to create doubt about the claim regarding promptness in lodging the FIR by the complainant and cast serious suspicion about the correctness and veracity of the prosecution's version. Reliance in this regard is placed upon the case titled "Nazeer Ahmad v. Gehne Khan and others (2011 SCMR 1473) wherein it has been held that delay in having post mortem conducted adversely reflected on the 'credibility of prosecution's version.
6. The ocular account has been furnished by the eye-witnesses i.e. complainant Zaheet-ul-Din Babar (PW-1), the father and Shah Zaib Gull (PW-2), a cousin of Irtaza deceased only, Tahir Mehmood, PW, another close relative of the deceased has however been given up being unnecessary. Since the occurrence took place on 26.03.2018 at 1.45 a.m. at a show-room established by Yasir Ikram as its proprietor under the name and style of "Yasir Ikram Motors", which is situated at Susan road, Faisalabad, as per prosecution's own case, therefore, as a natural corollary, it (place) has given rise to certain unavoidable serious implications having material bearing upon the decision of this case. It is an established principle for dispensation of criminal justice that if the prosecution's case rests on ocular account, the witnesses must establish their presence at the spot at the relevant time. The Court while appraising the evidence furnished by eye-witnesses, has to see as to whether the presence of the witnesses at the relevant time and place was natural or in absence thereof whether they have given some plausible reasons/explanation for their presence at the spot while seeing the occurrence. It is not safe to rely upon merely parrot like narration of the events/occurrence by witnesses without satisfying the judicial conscience of the Court regarding presence of eye-witnesses at the relevant time at the spot for sustaining the conviction in a case consisting upon ocular account. In the instant case, after going through the evidence of both the eye-witnesses, I am of the considered view that their presence at the place of occurrence at relevant time is quite doubtful for the reasons recorded below. As per complainant (PW-1), the distance in between his residence and the show-room is 10 to 12 K.M., whereas the distance inter se the house of the complainant and PW-2 Shah Zaib's house is about 15/16 K.M, within the radius of the Municipal Area of City Faisalabad. Admittedly, Shah Zaib PW-2 is nephew/Bhanja of PW-1. His residence is also situated at a distance of 7/8 K.M. from the place of occurrence. Both the PWs i.e. PW-1 and PW-2 as such are closely related to each-other and the deceased. They apparently have deposed in unison while recording their examination-in- chief that on 26.3.2018 at evening time, they i.e. Irtaza, Tahir Mehmood, Shah Zaib Gull and Zaheer ul-Din Babar, had gone to purchase a vehicle at Yasir lkram Motors situated at Susan road Faisalabad. It is important to note that as per Sun Calculator of Pakistan (Faisalabad, Sunrise and Sunset times) available on the internet, on the day of occurrence i.e. 27.3.2018, the time of sunrising in Faisalabad is at 06:02 a.m. and sun-setting at 6:23 p.m. According to PW-2, despite checking a number of vehicles, they found none of their choice. The occurrence took place at about 1.45 a.m. (late night) on 27.3.2018. In the afore stated facts, my judicial conscience has compelled me to ponder on in-depth, as to whether the explanation offered by the prosecution's witnesses to establish their presence at the time of occurrence that they all were busy in conversation with each-other despite they found no vehicle of their choice at the show-room is a natural and justifiable reason to rely upon their evidence for sustaining conviction recorded by the learned trial Court or not. Admittedly, all the PWs were residing within the municipal limits of the city Faisalabad. Instead of returning to their homes, when they could not find out a vehicle of their choice, the claim of prosecution witnesses that they all apparently aimlessly remained busy during this prolonged interregnum in conversation with each other up-till 1.45 a.m. (late night), which are not usually the business hours, palpably appears to be an unnatural and preposterous attempt by the witnesses to establish their presence at the relevant time at the place of occurrence. The epilogue of above discussion is that the presence of both the eye-witnesses at the relevant time of occurrence seems to be highly doubtful, therefore, conviction cannot be sustained merely on the strength of their parrot like narrations. It is important to point out that in addition to above, another piece of evidence which could have been beneficial to the prosecution's case, comprising over the CCTV footage i.e. CD (P-I6) and USB (P-17), obtained from the Manager of the Summit Bank, seized by the I.O. Ashfaq Mujahid Inspector (PW- 2) through recovery memo (Exh:PH) attested by Shah Zaib Gull and Tahir Mehmood PW had already been discarded by the learned trial Court being inconsequential as the I.O. did not send the said recovered items to the Punjab Forensic Science Agency, Lahore for getting expert opinion about their authenticity. There is yet another strong reason to discard the prosecution's story. Upon perusal of record, it appears that the complainant in connivance with the police while suppressing the real facts, which had a material bearing upon the case made an abortive attempt to portray a besuiting story of the occurrence. It has been noted that right from the registration of case up to the making of their statements in the Court, the so-called eye-witnesses have left no stone unturned to conceal the presence of Yasir Ikram, the Proprietor of the show-room and receiving of his injuries at the time of occurrence. Such concealment and suppression made by the complainant party, has been un- earthed by the defence while exercising its right of cross-examination. Ashfaq Muhajid Inspector, the first Investigating Officer (PW-12), while facing the cross-examination deposed that Yasir Ikram was the owner of the show-room. Though initially he negated a suggestion put by the defence that Yasir Ikram was injured during this occurrence, he however, voluntarily stated that he became injured prior to the occurrence of this case. The defence has ably and readily suggested to this PW that volunteer portion of his statement is incorrect. He, however admitted that the medico-legal certificate of Yasir Ikram was annexed with the police file. He further admitted it to be correct, in response to a fruitful suggestion made by the defence that according to Medico-Legal Certificate annexed with the police file, the time of medical examination of Yasir Ikram was 3.49 a.m. on 27.03.2018. Similarly, he further stated that the injury statement of Yasir Ikram prepared by Syed Izhar Hussain Shah Moharrir/Head Constable of Police Station of Madina Town Faisalabad is also annexed with the police file. In addition to above, Ameer Muhammad Inspector (PW-10) has also stated that "I know that Yasir Ikram was the owner of show-room/place of occurrence. It is correct that Yasir Ikram had injured during the occurrence and he had got medico legal Certificate from the Hospital. It is correct that FIR was lodged under Sections 302/427/34, P.P.C. It is correct that I did not summon Yasir Ikram injured PW to join, the investigation. It is correct that on 19.4.2018. Yasir Ikram joined the investigation. I do not remember that either Yasir Ikram endorsed his earlier statement allegedly recorded on 27.3.2018. He further deposed that it is correct that I had recorded in my case diary that Yasir Ikram owner of the show-room endorsed his statement already recorded on 27.3.2018 by Ashfaq Mujahid SI/ previous Investigating Officer." Out of the statements of the I.Os. i.e. PW-10 and PW-12, the above quoted excerpts, leave no room that Yasir Ikram injured was actually an eye-witness of the alleged occurrence. His presence at the spot being a proprietor of the show-room was natural. His medical examination by way of MLC issued through the police, had further consolidated his presence. His name was not shown as a witness in the calendar of witnesses attached with the report under Section 173, Cr.P.C. by the police with mala fide. In such circumstances, it is held that by not producing Yasir lkram, the injured PW of the occurrence in the Court, the prosecution is guilty of suppression of real facts and withholding of the best IF evidence. It is well settled that in case the best piece of evidence lying with a party is withheld, an adverse inference as required under Article 129(g) of Qunun-e-Shahudat Order, 1984 can be drawn against that party for withholding such evidence, on the ground that had such witness been produced, he would have not supported the case of the relevant party. Thus, the self-harming act of the prosecution, for retaining its cards quite close to its chest had given rise to a serious doubt about the veracity and correctness of the prosecution's version, the benefit of which irresistibility has to be extended to the defence. Reliance may be placed upon case reported as "Mst. Zarsheda v. Nobat Khan "(PLD 2022 SC 21), "Jehangir v. Mst. Shams Sultana and others"
(2022 SC MR 309, "Muhammad Naeem Khan and another v. Muqadas Khan (decd) through L. Rs. and another "(PLD 2022 SC 99) and "Muhammad Jabran and others v. The State" (2020 SCMR 1493).
7. While dealing with the criminal matters at Bench, it has been noticed with concern that being oblivious of their fundamental and foremost duty of dispensing with the justice to the litigants, after fulfillment of the requirements of a fair trial, sometimes the trial Courts instead of adopting a proactive approach prefer to sit idol while deciding the cases and only depend upon the material/ evidence so produced by the parties. Needless to observe that the Courts being bastion of justice are enjoined upon to exercise their jurisdiction in accordance with the statutory provisions of law.
However, the Courts while exercising such powers vested with them are permitted to absorb the changing realities of life, and as such the same should be reflected through their decisions.
Needless to observe that unless a society as a whole is innately and zealously desirous to seek benevolence of justice to concretize its foundations, the belligerent factions like the litigants by exploiting the loopholes and the weaknesses of the system, continue to take advantage in their favour. It is observed with, anguish that for countless reasons with the passage of time, instead of treading valiantly on the hard and bumpy path to occupy an honourable place in the comity of civilized and developed nations, we as a society are victim to stagnation. Such a state of affair has resulted into a gradual decay almost in all walks of life. It is the lesson of history if one intends to learn that neither any individual nor any nation can make advancement without sheer hard work and without adhering to best guiding norms of life. Unless a society as a whole has its firm belief in the benevolence of justice in every field of life as a virtue, the Judicial system under any constitution and law alone cannot create an egalitarian society, i.e. the ultimate aspiration of the humans irrespective of their religion, creed and caste. However, the Courts while exercising their jurisdiction with a progressive outlook and proactive role can make a contribution for sustaining of, otherwise a dwindling society. It may further be observed that it is expected from the Courts with bona fide and a firm belief that the courts will not deter in exercising their jurisdiction in a progressive manner to cater justice. The status of the litigants is always of a justice seeker only. The litigants under their respective persuasions can adopt and exercise all possible options including the tactics available to them while taking refuge behind the technicalities to attain their goals. It is the sacred duty of the Courts only to dispense with the justice to the litigants. Under Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973, to have a fair trial, is the fundamental right of the litigants while following the enabling provisions of the Qanun-e-Shahadat Order, 1984 and the Code of Criminal Procedure, 1898, during trial. In this backdrop, a reference to Section 540, Cr.P.C. may not be out of context, which upon its bare reading reflects that where some evidence is essential for just decision of case, it is obligatory upon the Court to exercise its discretionary power even suo-motu while guarding itself against the exploitation of exercise of such power by the litigants in the light of guiding principles in the ends of justice. There is no dearth of case law elaborating the guiding principle for exercising powers in this regard. Reliance may be placed upon case reported as "Sajid Mehmood v. The State "(2022 SCMR 1882), "Chairman, NAB v.
Muhammad Usman and others "(PLD 2018 SC 28), "Nawabzada Shah Zain Bugti and others v.
The State" (PLD 2013 SC 160), "Shahbaz Masih v. The State" (2007 SCMR 1631) and "Muhammad Murad Abro v. The State through A.G. Bcdochistan" (2004 SCMR 966). Examining the facts of the case in the light of above observations, it is held that in the instant case not only the prosecution but also the learned trial Judge despite availability of sufficient material and reasons that the evidence of injured Yasir Ikram, the proprietor of the show-room, whose presence was natural at the time of occurrence was essential to the j decision of the case, failed to exercise its power under Section 540, Cr.P.C. Such failure in exercise of power under Section 540, Cr.P.C. has occasioned in creating a lacuna and serious doubt regarding the veracity of the prosecution's story which had left no option except to extent benefit in favour of the defence.
8. In the above background, after finding themselves being in a cauldron, the argument of learned Prosecutor assisted by learned counsel for the complainant that in the attending circumstances of this case, since the defence has also not come forward with a clear-cut and consistent version, therefore, following the principles laid down in the case titled as Syed Ali Bepari v. Nibaran Mollah and others" (PLD 1962 SC 502), the Court should form its own opinion about the occurrence, had failed 'to impress being in-apt in the above discussed facts and circumstances of the instant case, hence, repelled. As it is the prosecution to prove its case which had failed, therefore, the defence evidence, needs no discussion.
9. Since the ocular account, when the prosecution had already failed to prove other corroboratory limbs i.e. recovery and motive, and the charges under Sections 386/440/34, P.P.C. against the appellant before the trial Court, has also failed to satisfy the judicial conscience of the Court for sustaining the conviction.
10. For what has been discussed above, in my judicial estimation, the prosecution has badly failed to prove its case against the appellant. It is cardinal principle of criminal jurisprudence that a single instance causing a reasonable doubt in the mind of the court entitles the accused to the benefit of doubt not as a matter of grace but as a matter of right. In this context, reliance is placed on the judgment reported as Muhammad Akram v. The State (2009 SCMR 230), wherein the Hon'ble Supreme Court has held as under:-- "The nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."
Therefore, this appeal is allowed, the conviction and sentence recorded by the learned trial court against the appellant (Zeeshan Iftikhar alias Shani son of Iftikhar) through the impugned judgment dated 08.02.2022 is set aside and he is acquitted of the charge. The appellant is in jail, he shall be released forthwith, if not required in any other case.
11. As far as Criminal Revision No.14749 of 2022 (Zaheer-ul-Din Babar v. Zeeshan Iftikhar, etc.) is concerned, for the reasons mentioned hereinabove, the instant criminal revision petition having no substance, stands dismissed.