Ch. Abdul Aziz, J. Sadaqat & Bilal (appellants) along with two others, namely Maula Bakhsh & Mewa involved in case FIR No.6/2020 dated 17.01.2020 registered under Sections 302,109 & 34 PPC at Police Station Hajipur, were tried by learned Additional Sessions Judge, Rajanpur. Trial Court vide judgment dated 03.03.2021 while acquitting the afore-said co-accused proceeded to convict and sentence the appellants in the following terms:- Under Section 302 (b) PPC to suffer death sentence as to'zir. They were also directed to pay compensation of Rs.2,00,000/- each under Section 544-A Cr.P.C. to the legal heirs of Nemat Ullah (deceased) and in default whereof to suffer 06-months simple imprisonment.
Aggrieved by their conviction and sentence, Sadaqat & Bilal (appellants) filed Criminal Appeal No.180 2021, whereas complainant Habib Ullah (PW.4) filed Criminal Appeal No.247 of 2021 against the acquittal of Maula Bakhsh & Mewa (respondents No.2 & 3). Likewise, trial court sent reference under Section 374 Cr.P.C. which was numbered as Murder Reference No.07 of 2021 for the confirmation or otherwise of death sentence awarded to Sadaqat & Bilal (convicts). All these matters are being decided through this single judgment.
2. Succinctly stated the facts of the prosecution case as disclosed by Habib Ullah (PW.4) in F.I.R (Exh.PA/1) are to the effect that on 17.01.2020 he accompanied by his sons Nemat Ullah and Barkat Ullah as well as his brother Saif Ullah visited his land located in Madd Machhi Mauza Hajipur; that his son Nemat Ullah went there to visit his sister Mst. Nasreen through motorcycle; that he was present near Sewrah Chowk, alongside Barkat Ullah and Saif Ullah in proximity to his land; that at about 12:30 p.m., Nemat Ullah after visiting his sister arrived at Sewrah Chowk on the metalled road where he encountered Sadaqat, Bilal and Mewa all of whom were armed with .12 bore pistols; that all the accused declared their intention to ensure that Nemat Ullah would not survive and proceeded to encircle him as he dismounted from his motorcycle; that Sadaqat fired a shot from his pistol striking Nemat Ullah on the right side of his back; that subsequent thereto Bilal also fired a shot from his pistol which impacted Nemat Ullah on his left flank; that additionally Sadaqat fired another shot that struck the back of Nemat Ullah's head; that following the infliction of injuries, Nemat Ullah collapsed to the ground and at that moment Mewa fired a shot from his pistol hitting Nemat Ullah at the front of his abdomen resulting in the evisceration of his intestines; that Nemat Ullah succumbed to the injuries at the spot while the eyewitnesses attempted to catch the accused who subsequently threatened them with severe repercussions; that the reason for the incident is statedly linked to the fact that Nemat Ullah divorced Sadaqat's sister three months prior to the incident.
3. On 17.01.2020 following the receipt of information regarding the incident Abid Aziz SI (PW.10), along with other police personnel, made their way to the crime scene. On the way he encountered complainant Habib Ullah (PW.4) who got recorded his statement. This statement was subsequently transcribed into a formal complaint (Exh.PA) and forwarded to the police station through Muhammad Nadeem 1443/C for the registration of formal FIR. At the spot he prepared injury statement (Exh.PG/1), inquest report (Exh.PG) and handed over the dead body of Nemat Ullah to Ghulam Sarwar 635/HC for autopsy. He also secured blood stained earth and two crime empties of .12 bore pistol (P.1 & P.2) through memos Exh.PJ & Exh.PK. He further took into possession Honda 125- motorcycle upon which Nemat Ullah (deceased) was boarding through memo Exh.PL. Thereafter he prepared un-scaled site plan (Exh.PP). On 01.03.2020 he arrested Sadaqat & Bilal (appellants) who on 05.03.2020 made separate disclosures and in response thereof led to the recovery of pistols .12 bore (P.3 & P.4) which were taken into possession through memo Exh.PM & Exh.PN. On 09.03.2020 accused Maula Bakhsh and Mewa joined investigation after obtaining their pre-arrest bail, who during investigation were found not involved in the case. After recording the statements of witnesses under Section 161 Cr.P.C. and complying all codal formalities, he submitted the file to the relevant Station House Officer for the preparation of a report under Section 173 Cr.P.C.
4. The prosecution in order to prove its case against the appellants produced a total of eleven witnesses, out of whom Habib Ullah (PW.4) and Barkat Ullah (PW.8) provided eyewitness testimony, while Dr.Zia Ullah (PW.6) furnished the medical evidence and Abid Aziz SI (PW.10) conducted the investigation of the case. The other PWs predominately were formal in nature.
5. On 17.01.2020 at about 2:30 p.m. Dr.Zia Ullah (PW.6) performed the autopsy on Nemat Ullah and noted the following injuries:-
(1) A lacerated wound of about 2 x 2 cm of circular shape on back of head on occipital region with inverted margins and burning and blackening of wound was present. This was an entry wound.
(2-A) 9 or more small lacerated wounds of about 1 x 1 cm each on right side of back, medial to the middle of scapula bone. These were going skin deep with inverted margins and blackening and burning of wounds was present. These were entry wounds.
(2-B) A lacerated wound of about 4 x 4 cm on abdomen just above on umbilicus with everted margins, the gut was coming out at the time of examination. This was an exit wound.
(3) 5 or more small lacerated wounds of about 1 x 1 cm each on lateral side of left flank going deep with inverted margins, burning and blackening of wound was present. This was entry wound.
According to the opinion of the doctor, the cause of death was attributed to injuries No.1 & 2 which resulted in rapid, excessive and irreversible blood loss leading to neurovascular shock. He further indicated that the duration between injuries and death was immediate while the time from death to postmortem examination was estimated to be 1 to 2 hours
6. After the conclusion of prosecution evidence, the learned trial court also examined the appellants under Section 342, Cr.P.C., who in response to question "why this case is against you and why the PWs have deposed against you" made the following reply:- "I have been falsely involved in this case. I have no concern with the occurrence. I was not present at the time and place of occurrence. Complainant party has concocted false story to falsely involve me in this case. All the PWs are interested and related inter se who have deposed falsely just to obtain money (Chatti)."
The appellants did not choose to present themselves under Section 340(2) Cr.P.C., nor did they submit any evidence in their defence. Following the trial's conclusion, the appellants were found guilty and sentenced as previously mentioned, hence the instant criminal appeals and murder reference.
7. It is contended by the learned counsel for the appellants that the First Information Report in fact was registered with delay but through tampering with relevant registers it was made to look as having been lodged within one hour of the incident; that the eyewitnesses miserably failed to prove their presence at the spot who otherwise were chance witnesses; that the ocular account is in conflict with the medical evidence; that the eyewitnesses were disbelieved to the extent of co- accused Mewa who though was ascribed the role of inflicting firearm injury on the abdomen of deceased Nemat Ullah was acquitted from the case; that due to foregoing reason, no reliance can be placed upon the depositions of same eyewitnesses; that the witnesses contradicted each other on material points which further rendered them unreliable; that even the motive set out by the prosecution remained unproved as no evidence in its support was led; that though reasonable doubt about the involvement of appellants in the commission of crime surfaced during trial but its benefit was not extended to them and that since the conviction awarded to the appellants is contrary to facts of the case and law on the subject, thus is to be set-aside.
8. On the other hand, learned Additional Prosecutor General assisted by learned counsel for the complainant stoutly urged to uphold the conviction of appellants with the contentions that the information of crime was provided to police within 45-minutes which rules out the possibility of any consultation and false implication; that the eyewitnesses proved their presence at the spot beyond any doubt and provided confidence inspiring detail of the incident; that both the appellants are specifically ascribed the role of inflicting firearm injuries to the deceased; that the injuries observed by PW.6 Dr.Zia Ullah during autopsy are in absolute conformity with the narration of eyewitnesses; that there was no reason for the eyewitnesses to falsely implicate the appellants in the commission of crime by giving a clean chit to the actual offender; that the ocular account is amply supported from the duly proved motive and positive report of PFSA, according to which the crime empty recovered from the spot matched with the weapon recovered from one of the convicts, namely Bilal and that since prosecution fully proved its case thus the conviction awarded to both the appellants is to be upheld.
9. Arguments heard. Record perused.
10. Review of record reveals that on the afternoon of 17.01.2020 one Nemat Ullah aged about 35- years was ambushed, beset and assassinated by a bunch of assailants comprising upon Sadaqat, Bilal and Mewa. The murder incident was claimed to have been witnessed by Habib Ullah, Barkat Ullah and Saif Ullah who statedly were present at the crime scene even before the arrival of Nemat Ullah (deceased). One out of the afore-mentioned three witnesses, namely Habib Ullah (PW.4) imparted the details of crime to Abid Aziz SI (PW.10) through oral statement (Exh.PA) when the former interacted with the latter during routine patrol duty in the same neighbourhood. All the three perpetrators named in the First Information Report were arrested and put to trial but only Sadaqat and Bilal were handed down guilty verdict whereas Mewa earned acquittal.
11. During arguments the prompt registration of FIR was canvassed as the strong point of prosecution case which impelled us to dilate upon it before touching any other aspect of the file.
The time of homicide incident was described as 12:30 p.m. by the eyewitnesses and the statement (Exh.PA) of Habib Ullah (PW.4) was penned down by Abid Aziz SI (PW.11) at about 1:15 p.m which 10- minutes thereafter was transcribed into formal FIR (Exh.PA/1). Being cognizant of the fact that the purity of criminal administration of justice including the police working has plummeted to a noticeable extent due to which the police station record is always prone to tampering, thus we pondered upon the acclaimed prompt registration of FIR with utmost circumspection.
Unfortunately, it has become trend of police investigation to facilitate the complainant of a murder case by putting at halt Registers No.1 & 2 more commonly known as First Information Report Register and Station Diary respectively, so as to show a crime report though lodged with delay as having been promptly registered. Such courtesy is often extended as token of sympathy for the aggrieved family and on occasions by design hatched with sinister object of implicating innocent persons in the cases of unseen incident. The ongoing malpractice gives leverage to the prosecution for adjusting the statements of witnesses in accordance with medical evidence and even provides an opportunity to procure the attendance of persons, otherwise not available at the crime scene. The tampering made in the record to cover up the delay in reporting the felony to police can well be traced from the careful scrutiny of documents prepared on the first day of occurrence and most important out of them is the inquest report. According to Chapter-XXV Rule 35 of the Police Rules, 1934 the inquest report is drafted by the Investigating Officer after recording the statement of complainant and collection of relevant material from the crime scene. The inquest report comprises upon four pages and contains twenty four columns, besides that its last page is meant for mentioning the brief facts of the case emerging from the accusation set out by the complainant. Twenty four columns of the inquest report provide information about the place of occurrence, the time of incident, the names of witnesses, particulars of the deceased along with condition of the corpse, the nature as well as locales of injuries, the description of weapon used in the crime and above all the articles recovered from the spot. It is equally important to mention here that since the statement of at least the complainant is to be recorded before drafting of inquest report, thus the police officer gains knowledge about the identity of the culprits and the weapons used by them. The inquest report is to be prepared in duplicate by the carbon copying process in a prescribed format and is essentially required to be provided to the Medical Officer before the autopsy as is evident from the provisions of Chapter-XXV of the Police Rules, 1934 and the Instructions Regarding The Conduct Of Medco Legal And Postmortem Examination 2015 issued by the Surgeon Medico Legal Punjab, Lahore. As token of acknowledgement upon receipt of inquest report before the autopsy with all the columns filled properly, the medical officer is required to sign its each and every page. If the needful towards drafting of inquest report is done in accordance with aforementioned requirements, it excludes the possibility of tampering with record. While reverting back to the record of the case in hand, it is observed that not a single page of the inquest report (Exh.PG) carries signature of the medical officer. The things get more complex for the prosecution when seen in the context that Dr.Zia Ullah (PW.6) candidly conceded during cross-examination that no police paper was provided to him before the autopsy and for obvious reason it was not signed by him. The question of vital importance arises that if at all till the start of postmortem examination, the complaint (Exh.PA) and inquest report (Exh.PG) had been drafted then why these documents were not furnished to medical officer. Though Abid Aziz SI (PW.10) was confronted with the afore-mentioned shortcoming but he failed to put forth any legally acceptable reply. It is further noticed that the complaint (Exh.PA) was drafted at the crime scene and was dispatched to police station through Muhammad Nadeem 1443/C for the registration of formal FIR but neither he was cited as witness in the prosecution case nor was produced during trial as such.
The claim of registration of FIR without delay is a factor which is not to be projected through rhetoric but is to be substantiated through impeccable evidence. Since according to the claim of the prosecution, Muhammad Nadeem 1443/C transmitted the complaint (Exh.PA) to police station at 1:15 p.m then the foregoing fact should have been proved by leading some evidence and not otherwise. Abid Aziz SI (PW.10) was duly cross-examined by the defence on the point but he remained speechless to explain the questioned omission of not citing Muhammad Nadeem 144/C as witness in the case. In the given circumstances, we are highly skeptical about the prompt registration of FIR rather the attending circumstances give a clue that the needful was done much after the postmortem examination. In support of the view so formed by us, reliance is placed upon the case reported as Hafeez Ahmed and others v. The State (2023 YLR 2503) wherein a Division Bench of this Court held as under:- "The medical officer is required to sign each page of the inquest report as token of its receipt before the commencement of postmortem examination. Needless to mention here that the requirements so mentioned above are primarily focused at ensuring that before the commencement of autopsy statements of eye-witnesses are on file, the kind of weapon used in the crime and locales of injuries inflicted by the accused have been conveyed to police so as to exclude the possibility of subsequent tampering."
Further reference on the subject can be made to the cases reported as Muhammad Atif Naveed and another v. The State (2024 PCrLJ 1421) and Wasi Haider v. The State and another (2022 PCrLJ 1695).
12. The details of unfortunate saga leading to the assassination of Nemat Ullah were brought on record through Habib Ullah (PW.4) and Barkat Ullah (PW.8) who claimed to be in attendance at the fateful time. Before dilating in-depth upon the evidence of eyewitnesses a pressing need is felt to mention here the brief tale of incident narrated by them. According to complainant Habib Ullah (PW.4) he along with the witnesses and his slain son left the house to visit his agricultural land situated at the distance of 20-kilometers from the place of his abode. The three witnesses were seated on a Honda CG-125 motorcycle whereas Nemat Ullah (deceased) was on a separate bike.
Nemat Ullah (deceased) firstly went to the house of his sister Mst.Nasreen w/o Fayyaz Ahmad and from there reached the place of occurrence which was situated at the distance of 2 1/2 squares from the agricultural land owned by his father. According to the theory of crime the assassins were already hiding at the place of occurrence and they unleashed their aggression upon Nemat Ullah (deceased) immediately after his arrival.
In the background of facts mentioned above, it is noticed that Habib Ullah and Barkat Ullah (PWs 4 & 8) held Sadaqat, Bilal and Mewa responsible for actively participating in the occurrence which culminated in the murder of Nemat Ullah (deceased). To be precise all the three assailants were burdened with the specific allegation of inflicting firearm injuries to Nemat Ullah (deceased) at various locales. So far as Mewa is concerned, he was ascribed the role of inflicting a fire shot injury on the abdomen of Nemat Ullah (deceased) through .12 bore weapon. From the medical evidence furnished by Dr.Zia Ullah (PW.6) it turned out that though he observed a lacerated wound measuring 4 x 4 cm just above umbilicus but on account of everted margins described it as an exit wound of a firearm injury on the back. The afore-mentioned anomaly prevailed upon the trial court and accordingly while disbelieving the eyewitnesses to the extent of Mewa, acquitted him from the charge. The question of vital importance arises that to what extent the evidence of same set of eyewitnesses can be relied upon for upholding the conviction awarded to Sadaqat and Bilal (appellants). Unambiguously, both the eyewitnesses, namely Habib Ullah and Barkat Ullah (PWs 4 & 8) were proved to have deposed falsely on a material point, thus in our view it will be a fallacious approach to structure the conviction of Sadaqat and Bilal (appellants) upon the depositions of same witnesses. Inexorably both the eyewitnesses had no margin of error while describing the locale of firearm injury inflicted by Mewa (since acquitted). We have noticed that according to the eyewitnesses, after the receipt of three shots fired by the appellants, the victim Nemat Ullah fell on the ground and Mewa (since acquitted) fired shot from his .12 bore caliber weapon targeting abdomen of the victim while standing upon him but on the given locale Dr.Zia Ullah (PW.6) observed an exit wound. Reverting back to the query that when the eyewitnesses have been disbelieved to the extent of Mewa and that too for cogent reasons, then what will be the fate of their depositions with regard to the appellants. Unambiguously, the acquittal of Mewa has polluted the purity of the evidence given by both the eyewitnesses, thus conviction of the appellants can only be sustained on the same ocular account if it receives independent strong corroboration from some other source of irreproachable nature. Similar view was taken by the Supreme Court of Pakistan while dilating upon the case of Imtiaz alias Taj v. The State and others (2018 SCMR 344) having facts, more or less, of alike nature and an observation therefrom is referred hereunder for reference sake:- "It is not disputed that four co-accused of the appellant attributed effective firing at and specific injuries to Rustam Ali deceased had been acquitted by the trial court. The law is settled that if the eye-witnesses have been disbelieved against some accused persons attributed effective roles then the same eye-witnesses cannot be believed against another accused person attributed a similar role unless such eye-witnesses receive independent corroboration qua the other accused person and reference in this respect may be made to the cases of Ghulam Sikandar v. Mumraz Khan (PLD 1985 SC 11), Sarfraz alias Sappi v. The State (2000 SCMR 1758), Iftikhar Hussain and others v. The State (2004 SCMR 1185) and Akhtar Ali v. The State (2008 SCMR 6)."
In fact, it is conspicuous from record that the afore-mentioned anomaly between medical and ocular evidence is not the only one rather there is another conflict between the two emerging from the statement of Barkat Ullah (PW.8). For the clarity sake we intend to restate here that Sadaqat (appellant) was ascribed the role of inflicting fire shot injury on the right side of the back of Nemat Ullah (deceased). Same stance was taken in the FIR as well as during trial by both the eyewitnesses in their examination-in-chief. During cross-examination of Barkat Ullah (PW.8) it emerged that in fact in his 161 Cr.P.C statement (Exh.DA) he described the locale of aforementioned injury on the left side of the back. Being cognizant of the importance of this fact we deem it appropriate to reproduce an extract from the cross-examination of Barkat Ullah (PW.8) which is as under:- "I got recorded my statement u/s 161 Cr.P.C to the I.O. I got recorded to the I.O that Sadaqat accused made fire shot on the right side of back. (Confronted with Ex.DA where left side is mentioned).
It can inescapably be gathered that Barkat Ullah (PW.8) made an intentional improvement in his court statement to bring it in line with the medical evidence and to get rid of a variation with the opinion of the doctor which was arising out of his police statement regarding the locale of one of the injuries attributed to Sadaqat (appellant). We are constrained to hold that through such dishonest improvement he compromised his integrity which left a question mark upon the intrinsic worth of his deposition. The approach of the Supreme Court of Pakistan regarding material dishonest improvement is consistently against the maker of such statement, whereby the fresh facts introduced during trial are discarded from consideration. Reference in this context is made to the case reported as Sardar Bibi and another v. Munir Ahmed and others (2017 SCMR 344), wherein the Supreme Court of Pakistan observed as under:- "According to the doctor, there was only one fire-arm entry wound on the chest of the deceased Zafar Iqbal. In order to meet this situation, witnesses for the first time, during trial made omission and did not allege that the fire shot of Sultan hit at the chest of Zafar Iqbal, deceased. So the improvements and omissions were made by the witnesses in order to bring the case of prosecution in line with the medical evidence. Such dishonest and deliberate improvement and omission made them unreliable and they are not trustworthy witnesses."
During arguments the learned APG and the learned counsel for the complainant made even their last ditch effort to persuade us for placing explicit reliance upon the depositions of eyewitnesses even in the wake of afore-mentioned glaring conflict between medical and ocular evidence. Such arguments were least impressive when tested on the touchstone of principles laid down for administering justice beyond speck of any doubt. The acceptance of the depositions of eyewitnesses even in the presence of a noticeable glitch between medical and ocular evidence amounts to discarding the statement of a medical expert without assigning any reasoning which perhaps will be nothing more than an injustice and besides that it will give leverage to false witnesses for securing conviction against innocent even after being contradicted by the medical evidence. Beyond everything, such practice on the part of the courts will give vent to frustrating the very purpose of collecting medical evidence in a charge pertaining to offences against human body. The medical evidence, needless to mention, is furnished by an expert and is aimed at enabling the court to adjudge the veracity of the accusations set out by the eyewitnesses in murder or hurt cases. This will not be an overstatement that medical evidence sheds light upon the depositions of eyewitnesses and draws a distinguishing line between the truthful and false narration about the incident. The deposition of an honest medical practitioner abridges the gap between the accusations of the witnesses and the flawless administration of justice by the court.
For the same reason, on account of a noticeable variation between medical and ocular evidence a consistent judicial view is formed to acquit the accused. In the case reported as Abdul dlabbar and another v. The State (2019 SCMR 129) the Supreme Court of Pakistan while dilating upon inconsistency between medical and ocular evidence observed as under:- "It is the settled principle of law that once a single loophole is observed in a case presented by the prosecution much less glaring conflict in the ocular account and medical evidence or for that matter where presence of eye-witnesses is not free from doubt, the benefit of such loophole/lacuna in the prosecution case automatically goes in favour of an accused."
13. For the just decision of the case, we intend to recapitulate here that according to the eyewitnesses they reached the spot on a motorcycle, the deceased arrived there after sometime on his own bike and the assailants were already sitting in ambush adjacent to the crime scene.
Keeping in view the fact that Habib Ullah (PW.4) and his son Barkat Ullah (PW.8) were residents of a place situated at the distance of 20-kilometers, thus the description of the motorcycle used by them was essentially required to be brought on record. None of the eyewitnesses lifted veil from the make, model, colour or registration number of the bike so used by them for reaching the crime scene nor it was taken into possession by the police during investigation. Above all the motorcycle of the witnesses found no place in the site plan (Exh.PH) which was prepared on their own pointation. We have also anxiously noticed that according to the site plan (Exh.PH), the crime scene was situated on a plain agricultural terrain and according to the prosecution case, the assassins were sitting in ambush even before the arrival of deceased. It is purposely reiterated here that the eyewitnesses reached the place of occurrence even before the arrival of Nemat Ullah (deceased).
The question of foremost importance pertains to the place where the three assailants were hiding but this query remained unaddressed in the prosecution evidence as well as during arguments before us. Even in the site plan (Exh.PH) no point is highlighted where the appellants and their acquitted co-accused had hidden themselves. We are not oblivious of the fact that unless it is proved that the site plan was prepared on the pointation of eyewitnesses it cannot be used to contradict them or for any other legal purpose. On the contrary, if the site plan is duly proved to have been drafted on the pointing out of the eyewitnesses, it provides an insight about the nature of crime scene, the location of witnesses, the distance between victim and assailants, besides that it enables the Court to draw a vision about the actual genesis of the occurrence. Habib Ullah (PW.4) unequivocally admitted that the site plan was prepared on the pointation provided by him and the other eyewitnesses. In these circumstances the site plan (Exh.PH) does not remain a simple piece of paper rather gains evidentiary value so as to be legally and legitimately used by this Court. If any reference in this regard is needed that can be made to the case reported as Imran Ashraf and 7 others v. The State (2001 SCMR 424) wherein the Supreme Court of Pakistan while dealing with the evidentiary value of the site plan held as under:- "We are conscious of the fact that as far as site plan is concerned it has no evidentiary value but its importance can also not be denied to determine the location of the incident as well as the position of the witnesses particularly in those matters where presence or otherwise of the witnesses has been challenged."
Further reliance on the subject can also be placed upon the cases reported as Muhammad Ahmad and another v. The state and others (1997 SCMR 89) and Juma Gul v. The State (2020 PCrLJ 1350).
There are some additional factors perceptible from record reflecting adversely upon the acclaimed presence of the eyewitnesses. It is already mentioned above that both the eyewitnesses were residents of a place situated at the distance of 20-kilometers from the place of occurrence.
The eyewitnesses canvassed their presence at the spot on account of their visit to agricultural land. Intriguingly for the prosecution, even the incident had not taken place on or adjacent to the land belonging to the complainant rather occurred at the distance of 2 1/2 squares therefrom.
Realizing the importance of the distance in between the place of occurrence and the land owned by the witnesses, during trial they took the stance that beside the eventful place they had obtained on lease another piece of agricultural land from Allah Ditta Patwari but no oral or documentary supporting evidence in this regard was tendered by them. Last but not the least, it is noticed that though Habib Ullah (PW.4) and Barkat Ullah (PW.8) admitted to possess the mobile phones having SIM Nos.03458136085 and 03406454115 respectively but came forward with the astonishing stance that at the eventful time these were in the use of some other persons. The aforementioned version though was preposterous but was intentionally taken as according to the respective grid reports, none out of the afore-mentioned two mobile phones was present in the vicinity where the questioned felony took place. Such stance of the witnesses stands exposed from the complaint (Exh.PA) wherein Habib Ullah (PW.4) himself mentioned his contact number as 03458136085. It is perceptible from all the facts so mentioned above that the presence of the eyewitnesses at the spot is doubtful.
14. According to the prosecution case, Sadaqat and Bilal (appellants) were arrested on 01.03.2020 and they led to the recovery of .12 bore pistols (P.3 & P.4) on 05.03.2020. Both the weapons were dispatched to PFSA for analysis but only the weapon (P.3) recovered from Bilal matched with one of the empty casings of .12 bore recovered from the spot as is evident from the PFSA report (Exh.PR).
The afore-mentioned positive report (Exh.PR) lost its significance when seen in the context of column No.22 & 23 of inquest report (Exh.PG) according to which no crime empty was recovered from the place of occurrence. Possibly, the crime empties were planted by the police so as to knit an evidence for corroborating the statements of eyewitnesses. Reliance in this regard may be placed upon the case reported as Mansab Ali and another v. The State (2024 PCrLJ 617) wherein the following observation was given:- "Furthermore, in column No.23 of the Inquest Report (Ex.CW9/D) no crime empty has been shown present there, albeit in the recovery memo (Ex.PF) and in the site plan (Ex.CW11/A), these empties have been shown recovered lying very close to the dead body of the deceased. This deliberate omission, creates reasonable doubt about the recovery."
15. So far as motive as corroboratory evidence is concerned, it is always considered as a justification for the commission of crime as well as reason for false implication in a crime, thus cannot be conclusively used for any purpose in this case, more importantly when the narrators of the ocular account are disbelieved.
16. We have come across a factor which though has least relevance with the ultimate decision of the case but since it pertains to incorrect legal approach adopted by the trial Court, thus calls for our indulgence. It is noticed by us that Abid Aziz SI (PW.10) appeared before the trial Court and his examination-in-chief was recorded on 01.03.2021, whereafter the case was adjourned for the following day. On 02.03.2021, Abid Aziz S.I. (PW.10) was cross-examined by the defence counsel and on the same date the counsel for the complainant was allowed an opportunity to cross-examine him. It is anxiously noticed by us from the interim orders of the learned trial Court pertaining to aforementioned dates that neither any application seeking permission to cross-examine Abid Aziz S.I. (PW.10) was moved by the prosecution nor such permission was accorded in writing by the learned trial Court. In accordance with Article 132 of Qanun-e-Shahadat Order, 1984 (hereinafter referred to as QSO), the examination of a witness is trisected in examination-in-chief, cross- examination and re-examination. The sequence of examining a witness is provided in Article 133 of QSO which for reference sake is mentioned below:- "133. Order of examination. (1) Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined then (if the party calling him so desires) re-examined.
(2) The examination and cross-examination must relate to relevant facts but the cross- examination need not be confined to the facts to which the witness testified on his examination-in- chief.
(3) The re-examination shall be directed to the explanation of matters referred to in cross- examinations and, if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine that matter."
During examination-in-chief, the party calling the witness is restrained from putting leading questions, if objected by the other side as is evident from Article 137 (1). On the contrary, in accordance with Article 133 (2) the scope of cross-examination is wide in nature and besides queries relating to the point in issue a witness can be questioned beyond it. So far as re- examination under Article 132(3) of QSO is concerned, it can be carried out by the party who had called the witness, almost as a matter of right but its scope is limited to the extent of providing an opportunity to the prosecution for reconciling the discrepancies, if any, between examination-in- chief and cross-examination or for removing some ambiguity in any statement inadvertently made by a witness during cross-examination. The re-examination under Article 132(3) of QSO must be restricted for explaining inadvertent omissions or out of context issues arising in cross- examination. In the absence of some ambiguity or a fact needing explanation, re-examination under 132(3) of QSO cannot be carried out to counter the effect of some benefit having been accrued to the defence during cross-examination. We have to keep in mind that through cross- examination a defence lawyer endeavours to structure the case of his client by establishing some facts contradicting the witness with his previous statement, exposing the credibility of a witness by confronting him with other attending circumstances and thereby knits a defence. The very purpose of cross-examination would be frustrated if a witness is permitted to overcome the effect of shortcomings through the tool of re-examination. According to Article 133(3) of QSO the re- examination must be directed to the explanation of the matters referred to in cross-examination and the foregoing provision places a restriction that a new fact can only be introduced with the permission of the Court which for obvious reason is to be granted in writing. The scope of re- examination was elaborated in the case reported as Khirodo Behera v. Kashinath Behera {(1990)
69 Cut LT 411} with the observation:- "Where there is no ambiguity or where there is nothing to explain, questions put in re-examination with the sole object of giving a chance to the witness to undo the effect of a previous statement should never be allowed. In cross-examining a witness the cross-examining lawyer not only tries to build up his case by establishing 'new facts but also tries to bring out contradictions in the evidence given in chief-examination. One of the main objects of cross-examining is to test the veracity of the witness and that object would be frustrated if a witness is permitted to get over the effect of prevaricating and contradictory statements made by him in cross-examination, by taking recourse to the device of re-examination."
During re-examination only the introductory questions can be asked from the witness without putting a leading question or cross-question as is evident from the combined effect of Articles 133(3) & 137 of QSO. The witness can be cross-examined by the person/party who calls him in the dock under Article 150 of QSO if permitted by the Court. Since in the instant case Abid Aziz SI (PW.10) was apparently cross-examined by the learned counsel for the complainant, thus the phraseology of Article 150 of QSO on account of its relevancy is essentially required to be examined and for that purpose the foregoing provision is reproduced in verbatim hereunder:- "150.Question by party to his own witness: The Court may, in its discretion, permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party."
The language of Article 150 is free from any ambiguity and leaves no room for discussion that cross-examination of a witness by a party calling him in the dock is entirely dependent upon the discretion of the Court which can only be accorded if there exists a compelling circumstance. For demonstrating that the discretion was lawfully exercised by the Court in terms of Article 150 of QSO, there must be an order backed by the reasoning and that too upon the application moved by the party mentioning therein attending circumstances. If such permission is granted by the Court, then in consonance with Article 141 of QSO a witness can be asked any question which tend to test his veracity, to discover who he is and what is his position in life or to shake his credit by injuring his character although answer to such question may tend directly or indirectly to criminate him or even may expose him to a penalty or forfeiture. The power under Article 150 of QSO is exercised by the Court in reference to a witness who becomes antagonist to the party on whose behalf he appears before the Court.
Such witness ordinarily is labelled as hostile, a term which though is not used in the Qanoon-e- Shahdat Order, 1984 as well as erstwhile Evidence Act, 1872 but is developed through common law.
We intend to lay emphasis on the point that re-examination under Article 132(3) and cross- examination of an unfavourable witness under Article 150 though are often intermingled but indeed are distinct from each other. Through re-examination an ambiguity stemming out of cross- examination can be removed whereas Article 150 is a provision which enables the prosecution to extract truth from a witness who turns hostile during his examination-in-chief or even during cross- examination and takes a stance different from his version earlier put forth. It is essentially required for the Court to have a look upon the previous statement/stance of the witness before declaring him hostile. If such witness is a police officer who had given an opinion favourable to accused during investigative phase of the case and he reiterates the same in his examination-in-chief, declaring him hostile will be a fallacious approach. The scope of cross-examining by a party to his own witness provided under Article 150 of QSO and Section 154 of the Indian Evidence Act, two legal provisions which are pari materia with each other, was discussed in the case reported as Kalusingh Motisingh and others (AIR 1964 MP 30):- "Now, cross-examination is normally the right of the party opposing the one which calls a witness.
If, however, that party itself wants to cross-examine him, then it has to seek the leave of the Court for putting questions to him which might be put in cross-examination, by the adverse party. This is under Section 154, and it is the established practice that a Court would not give leave to the party calling a witness to question him under Section 154 until it is satisfied that there is some hostility or adverseness displayed by the witness to the very party on whose behalf he has come to give evidence. If his memory plays a trick in regard to a detail, and he does not in any other manner go back on his previous statement, or show any disinclination to tell the truth then he is not hostile or adverse. In other words, he cannot be cross-examined and therefore the statements made by him to the police cannot be used in the manner provided in the amendment."
In a wrestle with the proposition, it is noticed that in the instant case neither any formal application in terms of Article 150 of QSO was moved by the prosecution nor any formal order was passed by the Court, thus the cross-examination conducted by the complainant counsel upon Abid Aziz SI (PW.11) was not legally correct.
17. The above discussion is encapsulated in terms that the claim of prosecution about the prompt registration of FIR is doubtful, the witnesses failed to prove satisfactorily their presence at the spot and besides that their narration is in conflict with the medical evidence. All these factors are sufficient to ward off punishment awarded to the Sadaqat & Bilal (appellants). Consequently, we allow Criminal Appeal No.180 of 2021, while giving benefit of doubt to Sadaqat & Bilal (appellants), acquit them of the charge and in consequence whereof, set aside their conviction and sentence.
They are in custody; be released forthwith if not required to be detained in any other criminal case.
Resultantly, Murder Reference No.07 of 2021 is answered in the NEGATIVE and death sentence awarded to Sadaqat & Bilal (convicts) is NOT CONFIRMED.
18. So far as Criminal Appeal No.247 of 2021 which is directed against the acquittal of Maula Bakhsh & Mewa (respondents No.2 & 3) is concerned, the same stands dismissed due to the reasons mentioned in para-12 above.