MALIK SHAHZAD AHMAD KHAN J.:- By this single judgment, I proceed to decide Criminal appeal No. 78954-J of 2019, titled 'Liaqat Ali alias Bao Vs The State' filed by the appellant, namely, Liaqat Ali alias Bao against his conviction and sentence, as well as, Crl. Revision No. 15587 of 2020 titled 'Arshad Mehmood Vs The State & another' filed by Arshad Mehmood complainant for enhancement of the sentence of the appellant, as both these matters have arisen out of the same judgment dated 05.12.2019 passed by the learned Addl. Sessions Judge (MCTC-II), Sheikhupura. The appellant, namely, Liaqat Ali alias Bao was tried in case FIR No. 276 dated 26.07.2016 registered at Police Station Safdarabad District Sheikhupura offences under Sections 302/427/34 of PPC and after conclusion of the trial vide impugned judgment dated 05.12.2019, the learned trial Court convicted and sentenced the appellant as under:- Under Section 302 (b) of PPC to Imprisonment for Life for committing Qatl-e-Amd of Muhammad Akram (deceased). He was also directed to pay Rs.20,00,000/- (Rupees two million only) as compensation under Section 544-A of Cr.P.C., to the legal heirs of Muhammad Akram (deceased) and in default thereof, to undergo six months S.I.
The appellant was however, acquitted of the charge under Section 427 of PPC. Benefit of Section 382-B of Cr.P.C., was extended in favour of the appellant.
2. Brief facts of the case as given by the complainant Arshad Mahmood (PW-7) in his complaint (Exh.PC), on the basis of which the formal FIR (Exh.PC/1) was chalked out, are that he (complainant) was resident of Chak No. 34 Deputywala and was a labourer by profession. On 26.07.2016 at 08:30 a.m., he (complainant) along with Muhammad Akram (deceased), Anwar Hussain (given up PW) and Zafar Iqbal (PW-8) was returning home on motorcycle 'rikshaw', driven by Muhammad Akram (deceased), from Mandi Safdarabad after sale purchase and when they reached in the area of Nawan Pind village Mananwala Road after crossing Dhup-Sarhi bridge, Liaqat Ali alias Bao (appellant), Waris Ali (co-accused since P.O) along with one unknown accused while armed with pistols 30 bore were present there ambushed with a motorcycle 125/cc. The complainant party when reached near the accused party, they (accused persons) started straight firing. Liaqat Ali (appellant) made burst with his pistol which landed at different parts of the body of Muhammad Akram (deceased). The PWs rescued themselves after hiding behind the 'rikshaw'. Waris Ali and one unknown co-accused made fire shots with their respective pistols which caused huge damage to the 'rikshaw', whereas, fire shots made by Waris Ali co-accused (since P.O) also landed on the body of Muhammad Akram (deceased). Due to the firing of Liaqat Ali (appellant) and Waris Ali co-accused (since P.O), brother of the complainant, namely, Muhammad Akram became seriously injured. Accused persons fled away from the spot on motorcycle after making firing.
Muhammad Akram (deceased) was being shifted to the Shahkot Hospital in injured condition by the complainant party but he succumbed to the injuries on the way to the hospital.
Motive behind the occurrence was that the complainant lodged FIR under Section 324 of PPC at Police Station Sadar Shahkot against Liaqat Ali (appellant) and others and the accused persons were pressurizing the complainant for compromise and due to this grudge, the accused persons committed the occurrence.
3. After submission of challan and completion of all the codal formalities, the learned trial Court framed the charge against the appellant on 22.05.2018, to which he pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution produced fourteen (14) witnesses during the trial.
Prosecution also produced documentary evidence in the shape of Exh.PA to Exh.PX and closed its evidence. Statement of the appellant under Section 342 of Cr.P.C was recorded by the learned trial Court.
5. The learned trial Court vide its judgment dated 05.12.2019 found the appellant, namely, Liaqat Ali alias Bao guilty for the offence under Section 302 (b) of PPC and convicted and sentenced him as mentioned and detailed above.
6. It is contended by learned counsel for the appellant that the appellant is absolutely innocent and he has falsely been implicated in this case by the complainant being in league with the local police; that the occurrence was unseen and the prosecution eye witnesses are chance witnesses; that the prosecution eye witnesses did not explain the injuries on the body of Muhammad Akram (deceased) which has made their presence at the spot highly doubtful; that pistol 30 bore (P-4) has been planted against the appellant and report of PFSA (Exh.PW) is in the negative therefore, the said recovery is inconsequential; that the prosecution has also failed to prove the motive part of the occurrence; that the prosecution has miserably failed to prove its case against the appellant beyond the shadow of doubt therefore, his appeal may be accepted and he may be acquitted of the charge by extending him the benefit of doubt.
7. On the other hand, it is contended by learned Deputy District Public Prosecutor assisted by learned counsel for the complainant that FIR in this case was promptly lodged which rules out the possibility of any fabrication or concoction; that the appellant was specifically named in the FIR with the role that he along with his co-accused while armed with pistols 30 bore caused injuries on the body of Muhammad Akram deceased and role attributed to the appellant is fully supported by the medical evidence; that the prosecution case against the appellant is further corroborated by the recovery of pistol 30 bore (P-4) on his pointation; that the motive was proved by the prosecution through reliable evidence of prosecution witnesses; that there is no substance in the appeal filed by the appellant hence, the same may be dismissed. Insofar as Crl. Revision No. 15587 of 2020 filed by Arshad Mahmood complainant for enhancement of the sentence of the appellant is concerned, it is argued by learned counsel for the complainant that the prosecution has discharged its onus by fully proving its case and no mitigating circumstance is available in favour of the appellant therefore, sentence of the appellant may be enhanced and he be awarded capital punishment provided for the offence.
8. Arguments heard. Record Perused.
9. The detail of the prosecution case as set forth in the complaint (Exh.PC) on the basis of which formal FIR (Exh.PC/1) was chalked out, has already been given in para No. 2 of this judgment therefore, there is no need to repeat the same.
10. According to the prosecution case, the occurrence of this case took place in village Nawan Pind within the jurisdiction of Police Station Safdarabad District Sheikhupura. Ocular account of the prosecution was furnished by Arshad Mahmood complainant (PW-7) and Zafar Iqbal (PW-8). Both the abovementioned eye witnesses of the occurrence were not residents of the village Nawan Pind District Sheikhupura where the occurrence took place and they were residents of Chak No. 34, Deputywala District Nankana Sahib. It is noteworthy from the perusal of the site plan (Exh.PG & Exh.PG/1) that the occurrence took place at a road in a deserted area. On both sides of the road, there were agricultural fields and no residential house, shop, bus stop, petrol pump or any other building has been shown at the spot. Both the abovementioned eye witnesses simply stated in their statements before the police, as well as, in their statements recorded by the learned trial Court that on the day of occurrence, they along with Muhamad Akram (deceased) were returning back from Mandi Safdarabad upon a motorcycle 'rikshaw' after sale purchase. They did not state the specific reason of their visit to Mandi Safdarabad on the day of occurrence. Although during their cross-examination, they stated that they went to Mandi Safdarabad to purchase ghee, sugar and some grocery but it is further noteworthy that no receipt regarding the purchase of any grocery items was produced during the investigation of this case before the I.O or during the recording of prosecution evidence by the learned trial Court, though Zafar Iqbal (PW-8) has stated that they (PWs) obtained receipts of items purchased from the shops of Mandi Safdarabad. It is further noteworthy that both the abovementioned eye witnesses made this excuse that in fact, items purchased by them along with 'rikshaw', driven by Muhammad Akram (deceased) at the time of occurrence, were burnt during the occurrence on account of firing of the accused persons but it is noteworthy that in the FIR there was no such allegation that 'rikshaw' of the complainant party caught fire at the time of occurrence. Likewise, there was no allegation in the statements of the abovementioned prosecution witnesses recorded by the police that the grocery items which were purchased by the PWs, were also burnt during the occurrence. Relevant parts of their statements in this respect are reproduced hereunder for ready reference:- Arshad Mahmood (PW-7).
Examination-in-Chief.
"The rikshaw was burnt due to fire."
Cross-examination.
"There was Ghee and Sugar in the rikshaw which were also burnt. Investigating officer did not collect such burnt materials from the place of occurrence. I did not produce any receipt of purchase of any grocery or any material which I had purchased and loaded in the rikshaw at that time."
Zafar Iqbal (PW-8).
Examination-in-Chief.
"The fire shots of Waris hit to rickshaw due to which the rickshaw caught fire and burnt alongwith luggage over it."
Cross-examination.
"I stated before the police that luggage on the rickshaw also burnt, confronted with Ex.DA wherein it is not so recorded..."
"In Safdarabad we purchased one peti of Ghee, one sack of Sugar, some grocery. It is incorrect to suggest that we did not purchase any grocery from Safdarabad. We received bills from the shops for such purchase. We did not produce these receipts before investigating officer."
It is therefore, evident from the perusal of the statements of the abovementioned prosecution eye witnesses that they did not state in the FIR (Exh.PC/1) or before the police that 'rikshaw' of the complainant and grocery items purchased by them were also burnt during the occurrence. It is further noteworthy that abovementioned prosecution eye witnesses though claimed that they received receipts from the shops regarding purchase of grocery items but the said receipts were neither produced before the I.O nor in the prosecution evidence recorded by the learned trial Court.
Moreover, no burnt items were recovered from the spot by the I.O. As mentioned earlier, both the abovementioned eye witnesses were not residents of the village (Nawan Pind), where the occurrence took place rather they were residents of Chak No. 34/Deputywala therefore, they were chance witnesses and as such, they were bound to prove the reasons of their presence at the spot at the relevant time but as observed earlier, they did not mention the reason of their presence at the spot at the time of occurrence in the FIR (Exh.PC/1) or in their statements before the police & even the reason given by them during their cross-examination was not proved through the recovery of any burnt item or through the production of any purchase receipt of the said items. In the light of above, both the abovementioned witnesses are chance witnesses and they could not prove the reason of their presence at the spot at the relevant time therefore, it is not safe to rely upon their evidence for upholding the conviction & sentence of the appellant. The Hon'ble Supreme Court of Pakistan in the case of 'Mst. Sughra Begum and another Vs. 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 a 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 taken in the case of "Muhammad Irshad Vs. 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............"
11. Although as per contents of the FIR, the occurrence took place on 26.07.2016 at 08:30 a.m., and the FIR was lodged on the same day at 09:35 a.m., but it is noteworthy that postmortem examination on the dead body of Muhammad Akram (deceased) was conducted on 26.07.2016 at 06:30 p.m., i.e., with the delay of 10 hours from the occurrence. Dr. Muhammad Kashif Bashir (PW-11) conducted the postmortem on the dead body of Muhammad Akram (deceased) and he stated that dead body was received in the dead house on 26.07.2016 at 06:00 p.m., whereas, police papers were received on the same day at 06:30 p.m., which shows that there was no delay on the part of the Medical Officer in conducting the postmortem examination on the dead body of Muhammad Akram (deceased). The abovementioned delay in conducting the postmortem examination on the dead body of the deceased is suggestive of the fact that the occurrence was unseen and the said delay was consumed in procuring the attendance of fake eye witnesses. In the case of 'Muhammad Ilyas Vs Muhammad Abid alias Billa and others' (2017 SCMR 54), the Apex Court of the country was pleased to observe that delay of 09 hours in conducting the postmortem examination suggests that prosecution eye witnesses were not present at the spot at the time of occurrence therefore, the said delay was used in procuring the attendance of fake eye witnesses.
Relevant part of the said judgment at page No. 55 reads as under:- "2.......................Post-mortem examination of the dead body of Muhammad Shahbaz deceased had been conducted after nine hours of the incident which again was a factor pointing towards a possibility that time had been consumed by the local police and the complainant party in procuring and planting eye-witnesses and cooking up a story for the prosecution....."
Similarly, in the case of 'Khalid alias Khalidi and two others Vs The State' (2012 SCM 327), the Hon'ble Supreme Court of Pakistan considered the delay of 10/11 hours from the occurrence in conducting the post mortem examination on the dead body of deceased, to be an adverse fact against the prosecution case and it was held that it shows that the FIR was not lodged at the given time.
Similar view was taken by the Apex Court of the country in the cases reported as 'Sufyan Nawaz and another Vs. The State and others' (2020 SCMR 192), 'Zafar Vs The State and others' (2018 SCMR 326) and 'Muhammad Ashraf Vs The State' (2012 SCMR 419).
12. It is further noteworthy that as per contents of the FIR and according to the prosecution case, motive behind the occurrence was that earlier Liaqat (appellant) made fire shots upon Arshad Mahmood complainant (PW-7) due to which an FIR under Section 324 of PPC was lodged and the appellant was pressurizing for compromise in the said case and on account of the said grudge, the occurrence of the present case was committed. Relevant parts of the statements of the prosecution eye witnesses regarding the motive part of the case are reproduced hereunder:- Arshad Mahmood (PW-7).
"Motive behind the occurrence is that the accused Liaqat present before this court shot fires upon me in the chowk of village."
Zafar Iqbal (PW-8).
"The motive behind the occurrence is that earlier there was a case against the accused u/s 324 PPC for shooting upon Arshad."
Likewise, Zafar Iqbal (PW-8) also stated that he had previous enmity with Liaqat Ali (appellant) prior to the occurrence. Relevant part of his statement reads as under:- "There is my previous enmity with the accused Liaqat prior to this occurrence."
Under the circumstances, either Arshad Mahmood complainant (PW-7) or Zafar Iqbal (PW-8) should have been the prime target of Liaqat Ali alias Bao (appellant) but both of them did not receive even a single scratch on their bodies during the occurrence, though according to the prosecution case, Liaqat Ali (appellant) and Waris Ali co-accused (since P.O) were armed with pistols and Arshad Mahmood complainant (PW-7) and Zafar Iqbal (PW-8) were at their mercy. As per site plan (Exh.PG & Exh.PG/1) they (PWs) were sitting in the 'rikshaw' on the left and right side of Muhammad Akram (deceased). The prosecution story does not appeal to a prudent mind because if the abovementioned motive was against Arshad Mahmood complainant (PW-7) or againt Zafar Iqbal (PW-8), then as to why the said witnesses were spared alive and in their place Muhammad Akram (deceased) was murdered, meaning thereby that the abovementioned witnesses were not present at the spot at the relevant time. Although abovementioned prosecution eye witnesses tried to justify the abovementioned motive by stating that in fact, Muhammad Akram (deceased) was pursuing earlier case lodged against the appellant but the FIR statedly lodged by the complainant party against the appellant or order sheet of the learned trial Court in the said case was never brought on the record during the trial of this case to establish that Muhammad Akram (deceased) was a complainant or a witness or he was pursuing the abovementioned case. I am, therefore, of the view that the abovementioned motive as alleged by the prosecution has not been proved in this case and even on the basis of said motive, the prosecution case is highly doubtful because in the light of said motive, either Arshad Mahmood complainant (PW-7) or Zafar Iqbal (PW-8) should have been the prime target of the appellant but they (PWs) did not receive a single scratch on their bodies during the occurrence. Reliance in this context may be placed on the case reported as 'Muhammad Zaman Mangat Vs. Muhammad Akhtar and others' (2004 SCMR 757), wherein the august Supreme Court of Pakistan at page 760 has held as under:- "10. The motive is the previous murder of one Safdar Iqbal. The F.I.R. of that case indicates that Ghulam Rasool complainant and his companion, Muhammad Azam were the nominated accused for the murder of Safdar Iqbal. Had they been present on the spot, they would have been the first target of the assailants. This is a strong circumstantial evidence which seriously points to the absence of complainant and his companions from the spot."
Similar view was taken by the Hon'ble Supreme Court of Pakistan in the cases of 'Saleem Khan Vs. The State and others' (2021 SCMR 1472) & 'Rohtas Khan and The State' (2010 SCMR 566). Under the circumstances, I have come to this conclusion that neither motive has been proved by the prosecution against Liaqat Ali alias Bao (appellant) nor presence of the abovementioned eye witnesses at the time of occurrence is free from doubt.
13. I have further noted that no specific injury on the body of Muhammad Akram (deceased) was assigned to the appellant or his co-accused and a general role was attributed to the appellant and his co-accused that the fire shots made by them landed on the different parts of the body of Muhammad Akram (deceased). This fact also indicates that the prosecution eye witnesses were not present at the time of occurrence therefore, they could not assign any specific injury to any accused.
14. Insofar as the recovery of pistol 30 bore (P-4) on the pointation of the appellant is concerned, it is noteworthy that report of PFSA, Lahore (Exh.PW) in this respect is in the negative and as such, the aforementioned recovery is inconsequential for the prosecution case.
15. I have considered all the aspects of this case and have come to this irresistible conclusion that the prosecution could not prove its case against the appellant beyond the shadow of doubt. It is by now well settled that if there is a single circumstance which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances which have created serious doubt regarding the truthfulness of the prosecution story. In 'Tariq Pervez Vs The State' (1995 SCMR 1345), the Hon'ble Supreme Court of Pakistan, at page 1347, was pleased to observe as under:- '5..............The concept of benefit of doubt to an accused person is deep rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right.'
The Hon'ble Supreme Court of Pakistan while reiterating the same principle in the case of 'Muhammad Akram Vs The State' (2009 SCMR 230), at page 236, observed as under:- "13...............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."
16. In the light of above discussion, the instant appeal (Criminal Appeal No. 78954-J of 2019) filed by Liaqat Ali alias Bao appellant is allowed, his conviction and sentence recorded by the learned Addl. Sessions Judge (MCTC-II), Sheikhupura vide impugned judgment dated 05.12.2019 is hereby set-aside and he is acquitted of the charge by extending him the benefit of doubt. He is in custody.
He be released forthwith if not required to be detained in any other case.
17. Insofar as Crl. Revision No. 15587 of 2020, filed by Arshad Mahmood complainant for enhancement of the sentence of Liaqat Ali alias Bao (respondent No.2) is concerned, I have already disbelieved the prosecution evidence due to the reasons mentioned in para Nos. 10 to 14 above and in consequence thereof, the aforementioned respondent (Liaqat Ali alias Bao) has already been acquitted of the charge by extending him the benefit of doubt. Under the circumstances, this petition has become meritless and the same is hereby dismissed.