MUHAMMAD AMJAD RAFIQ, J. Briefly the facts of the case are that Rab Nawaz son of Risaldar Malik Atta Muhammad complainant (PW-8) got recorded his statement before Ghulam Qasim Sub- Inspector/Investigating Officer (PW-10) at DHQ Hospital, Jauharabad, which was reduced into writing as Ex.PN, on the basis whereof formal FIR (Ex.PA) was registered. According to which complainant was resident of Dera Haji Matta (deceased) and on 16.02.2020 at 9.20 a.m. he (complainant) along with Muhammad Hamayun (PW-9) and Muhammad Munir (not produced) were working in the fields near Bola road in front of their dera; Haji Muhammad Matta (paternal cousin of me complainant) while walking reached Bola road, meanwhile Aamir Hayat (accused/appellant) resident of Dera Samblianwala near Sugar Mills Jauharabad armed with pistol 30-bore came on motorcycle Honda/125, without number, raised lalkara and simultaneously made three fire shots straight at Haji Muhammad Matta, hitting his chest, left flank and left ear, and he fell down: in such position the accused/appellant made another fire which landed below his right armpit. They rushed towards the place of occurrence and Aamir Hayat accused/appellant on seeing them escaped on motorcycle. Muhammad Matta was attended and after arranging the vehicle shifted to DHQ hospital Jauharabad, where he succumbed to injuries.
It was urged that in the year 1999 Nazar Hayat father of the accused/appellant had murdered maternal grandson of one Muhammad Feroze (employee of Haji Muhammad Matta); Haji Muhammad Matta supported his employee and thus Nazar Hayat was sentenced to death. On conviction of his father, earlier in the year 2006 the accused/appellant had injured Muhammad Sadiq (paternal grandson of Haji Muhammad Matta) by firing; in the said case the accused/appellant was challaned and instant occurrence was result of such earlier litigation between the parties.
2. Muhammad Qasim, Sub-Inspector/Investigating Officer (PW-10) sent the complaint to police station for registration of case (FIR No.45 of 2020 dated 16.02.2020 under section 302 P.P.C. Police Station Saddar Jauharabad, District Khushab) and he himself examined the dead body; prepared injury statement and inquest report; sent the dead body for postmortem examination and then proceeded to place of occurrence, inspected the spot, secured blood stained earth, collected four crime empties, got photographed the place of occurrence by Crime Scene Unit, prepared rough site plan and recorded statements of witnesses. Apart from performing certain other functions during the course of investigation including collection of CDR of Cell Phone No.03006052408, since the accused/appellant was not being traced the Investigating Officer got issued proclamation for his arrest, however, on 28.04.2020 the accused/appellant was arrested, who disclosed and got recovered pistol 30-bore along with 2 live bullets from a wheat bin lying in the verandah of his Baithak and on the same day the accused/appellant also got recovered motorcycle 125-CC.
3. On completion of investigation finally report under section 173 Cr.P.C. was submitted before learned Sessions Judge, Khushab. When charge sheeted the accused/appellant denied the charges and pleaded innocence, whereupon, the prosecution produced Dr. Amjad Abbas (PW-4) who had conducted postmortem examination of Haji Muhammad Matta (deceased); Ghulam Qasim Sub-Inspector/Investigating Officer (PW- 10) deposed about investigation, whereas, the rest of the witnesses were formal in nature. On close of prosecution case, the accused when examined under section 342 Cr.P.C. denied the prosecution evidence, did not opt to record his statement under section 340(2) Cr.P.C., however, produced Mudassar Hussain ASI (DW-1) and also tendered some documents in his defence. Vide judgment dated 07.01.2021 passed by learned Sessions Judge, Khushab the trial ended in the terms that accused/appellant was convicted under section 302(b) P.P.C. and sentenced to death, with further order to pay Rs.10,00,000/- compensation to the legal heirs or deceased under section 544-A Cr.P.C. and in case of failure to suffer simple imprisonment for Six months. Said conviction/sentence has been assailed by the convict through Criminal Appeal No.1704 of 2021 and Murder Reference No.10 of 2021 has been sent by the learned trial court as required under section 374 Cr.P.C. Both the matters are being decided through the instant judgment.
4. We have heard the arguments of learned counsel for the parties at considerable length and perused the record with their assistance.
5. It is prosecution's own case that occurrence took place on 16.02.2020 at 9.20 a.m., which was witnessed by Rab Nawab son of Risaldar Malik Atta Muhammad complainant (PW-8) and Muhammad Hamayun (PW-9); further that they attended Haji Muhammad Matta (deceased) injured at the spot, arranged a vehicle and shifted him to DHQ Hospital, Jauharabad, where he breathed his last. The complainant while appearing in the dock as PW-8 endorsed the facts as recorded in the complainant and reaffirmed that "We attended Haji Muhammad Matta and shifted him to DHQ Hospital Jahuharabad while making the arrangement of car. Haji Muhammad Matta died as a result of injuries while reaching the hospital." With this meticulous assertion about death of Haji Muhammad Atta (deceased) at the hospital, we have examined the record and observe that on the postmortem examination report (Ex.PE), the relevant column of Date and Time of death has been filled as 16.02.2020 at 9.20 a.m., and similar entry with respect to date and time has been written in the inquest report (Ex.PD), as admitted by Investigating Officer. Thus, the documentary proof establishes that the deceased had died at the moment he received injuries at the spot, therefore, the stance of the complainant is controverted.
6. In addition to the above, we have observed that the FIR has been lodged with a delay of two hours, such delay in ordinary course could 'have been ignored, but when both the prosecution witnesses claim their presence at the place of occurrence at the relevant time, then such delay cannot be oversighted, for the reason that distance between the place of occurrence and the police station has been given as 2 kilometers and according to the Investigating Officer DHQ hospital Jauharabad is at a distance of 1-11/4 km from the police station. Though the complainant tried to cover up the delay by saying that they arranged the vehicle and then shifted the injured to hospital, but Muhammad Hamayun (PW-9) removed any such confusion by stating in implicit terms that they left the place of occurrence at 9.30 a.m. for hospital. If this was so, then the delay of two hours in covering a distance of just 2-3 kilometers does not sound good. It is another fact that car, which according to then complainant had been arranged for shifting the injured to hospital, belonged to one Muhammad Hayat, but neither the said owner of the car nor even the driver of such vehicle was brought in the witness box and the Investigating Officer during the course of examination stated that "Neither I noticed the blood on the clothes of the PWs and complainant nor I noticed whether their hands were smeared with blood or not. Neither I examined the vehicle on which deceased was allegedly shifted to hospital nor I associated the driver of the vehicle in the investigation of this case." Admittedly, except crime empties and the blood stained earth, nothing else like fodder, etc. was collected by the Investigating Officer from the fields where both the eye-witnesses were allegedly working on the day and time of occurrence. Such inaction on the part of the Investigating Officer on above factors/aspects of the case, leave big dents in the prosecution case.
7. We have taken note of the fact that the Rab Nawaz complainant (PW-8) and Muhammad Hamayun (PW-9) deny to have informed Ghulam Qasim Sub-Inspector/Investigating Officer (PW- 10) about the occurrence and the Investigating Officer while appearing in the dock explained that it was the Moharir who through phone informed him about the occurrence when he along with police constables was present in Chowk Noor Colony, Jahuharabad; Abdul Hafeez 498 MHC/Moharrar appeared in the witness box as PW-2 but did not say a single word that from where he came to know about the instant occurrence, which he onwards communicated to the Investigating Officer.
8. The entire prosecution case is totally negated by the statement of Abid Siddique 101/C (PW-5).
This is the witness, through whom according to the Investigating Officer at hospital the dead body had been dispatched for postmortem examination but this witness as PW-5 states that:- "We received the information of this occurrence at police station and then we proceeded towards the place of occurrence. I escorted the dead body from the place of occurrence towards DHQ Hospital, Jahuharabad. Rub Nawaz and Muhammad Farooq PWs accompanied me from the place of occurrence to the DHQ Hospital. I do not remember the exact time of receiving the dead body from the place of occurrence. After one hour of our reaching at the place of occurrence, the dead body was handed over to me. Ghulam Qasim S.I/I.O also accompanied me with the dead body to the hospital.
We are cognizant of the fact that this witness was not declared hostile nor was even cross- examined by the prosecution side. In the light of all above discussed aspects with regard to delay in lodgment of the FIR; delay in conduct of postmortem examination, non-association of owner or driver of de Car used for shifting the deceased to hospital, inaction on the part of the Investigating Officer in observing blood on the hands, clothes of witnesses or in the car, the statement of Abid Siddique 101/C (PW-5) cannot be said as an unholy attempt to benefit the accused, rather as cumulative effect of all the above aspects, this statements portrays the correct picture at the spot i.e. in fact none had witnessed the occurrence; on finding the dead body the police got information and reached at the spot, joined the persons Rub Nawaz son of Muhammad Yaqoob (PW-6) and Muhammad Munir (not produced) and with their help Shifted the dead body to hospital by assigning the role of identification of dead body to both these witnesses and subsequently Rab Nawaz son Malik Atta Muhammad complainant (PW-8), paternal cousin of the deceased and Muhammad Hamayun (PW-9), grandson of deceased Haji Muhammad Matta and brother of Muhammad Sadiq (alleged to be injured earlier at the hands of accused/appellant), were engaged and introduced as eye-witnesses. Both are interested witnesses due to their close relationship with the deceased, and legal proposition is almost settled that the testimony of an interested witness should be scrutinized with care and caution and independent corroborating evidence is essential to test the validity and credibility of the testimonies of interested witnesses. As to the testimony of interested witnesses, the rule is well-established by this Court in the case reported as "Nazir v. The State" (PLD 1962 SC 269):- "........we had no intention of laying down an inflexible rule that the statement of an interested witness (by which expression is meant a witness who has a motive for falsely implicating an accused person) can never be accepted without corroboration. There may be an interested witness whom the Court regards as incapable of falsely implicating an innocent person. But he will be an exceptional witness and so far as an ordinary interested witness is concerned, it cannot be said that it is safe to rely upon his testimony in respect of every person against whom he deposes.
In order, therefore, to be satisfied that no innocent persons are being implicated along with the guilty the court will in the case of an ordinary interested witness look for some circumstance that gives sufficient support to his statement so as to create that degree of probability which can be made the basis of conviction. This is what is meant by saying that the statement of an interested witness ordinarily needs corroboration. For corroboration it is not necessary that there should be the word of an independent witness supporting the story put forward by an interested witness.
Corroboration may be afforded by anything in the circumstances of a case which tends sufficiently to satisfy the mind of the Court that the witness has spoken the truth. What circumstances will be sufficient as corroboration it is not possible to lay down. But, as the question before the Court would be whether some innocent person had not been implicated in addition to those who were guilty the circumstance relied upon must have a bearing on this question. In the case of an interested witness the corroboration need not be of the same probative force as in the case of an accomplice for the two do not stand and the same footing.
In the instant matter, the ocular account of the prosecution's interested witnesses is not only materially contradictory but also uncorroborated by the available evidence. We therefore, have no doubt in our mind to hold that none of the eye-witnesses had actually seen the occurrence, otherwise, the above noted apparent flaws would never had appeared.
9. After disbelieving the substantive eye-witness account, the rest of the evidence like motive, medical or the recovery, only being of corroborative nature hardly can be made basis to record or sustain conviction, however, even on these aspects the prosecution has failed to build its case for the reason that Nazar Hayat father of the accused/appellant, stood acquitted in the murder case of grandson of deceased's employee (one of the reason set as motive part), way back in the year 2005 and likewise the accused/appellant in the year 2010 had earned acquittal in the case of causing injuries to Sadiq, paternal grandson of deceased (the other reason shown as motive). In these circumstances, it does not appeal to a mind of common prudence that accused/appellant still would have carried the venom after about ten years of his acquittal or fifteen years after the acquittal of his father. We are therefore, least convinced with the motive set out by the prosecution.
10. As regards recovery, it is correct that pistol along with two bullets was shown to have been recovered on the lead of accused/appellant on 03.05.2020 and it stood matched with the crime empties collected from the spot, but it is rear possibility that the accused having successfully managed his escape from the place of occurrence along with crime weapon, would have kept the same safe and intact for its recovery more than two months after the occurrence and usage against himself. More importantly, the prosecution had shown the accused/appellant residing at dera Saniblianwala near Sugar Mills, Jauharabad i.e. in the surrounding of place of occurrence and said recovery of crime weapon was shown effected from the house of accused/appellant.
Obviously, when the accused/appellant had absconded and remained at bay for more than two months, the police/Investigating Officer must have repeatedly raided and searched his place of abode but during this period no such weapon could be recovered from his house, therefore, the recovery of crime weapon with such background, does not convince us. Even otherwise, after discarding the ocular account, this piece of evidence does not advance the case of prosecution
11. Coming to the medical evidence, according to the prosecution's case four fire shots were made by the accused/appellant on the deceased, which landed on front of chest, front of left flank, left ear and right armpit, and four crime empties were collected by the Investigating Officer at the time of visit to the spot but Dr. Amjad Abbas (PW-4) who had conducted postmortem examination found five entry wounds on the dead body, thus the number of injuries as given by the doctor do not commensurate with number of injuries highlighted in the ocular account. Even otherwise, medical evidence is just a corroborative piece of evidence and could only give details about the locale, dimension, kind of weapon used, the duration between injury and medical examination or death and autopsy, etc. but never identify the real assailant. In the case "Munawar Ali alias Munawar Hussain v. The State" (PLD 1993 SC 251) the Hon'ble Supreme Court of Pakistan held that:- "Medical evidence is corroboration to show that injuries were caused in a particular manner with particular weapon and even it can supply corroboration to the fact as to how many assailants there were and whether number of injuries is commensurate with number of assailants or not, but medical evidence can never be used as corroboration qua accused to show that particular accused has caused these injuries can never name the accused, that is, from the injuries alone it cannot be said who had inflicted those injuries.
The case "Machia and others v. State" (PLD 1976 SC 695) is also to the same effect.
12. For what has been discussed above, in the instant case the prosecution has totally failed to establish the charge against the accused/appellant beyond any shadow of doubt and it is trite that to extend benefit of doubt to an accused person, it is not necessary that there should be several circumstances creating doubt, rather one reasonable doubt is sufficient to acquit an accused. Reliance is placed on the case "Sardaran Bibi v. The State etc" (2024 SCMR 1116).
Consequently, Criminal Appeal No.1704/2021 is allowed and the accused/appellant is acquitted of the charge. He shall be released forthwith if not required in any other case. The case property, if any, shall be dealt with as ordered by the learned trial court and the record of the trial court be sent back immediately.
Murder Reference No.10/2021 is answered in the negative.
Sentence of death is not confirmed.