Abher Gul Khan, J. Alam Sher & Bashir Ahmad (appellants) along with co-accused Abdul Ghafoor involved in case FIR No.248/2019 dated 16.07.2019 registered under Sections 302,324 & 34 PPC at Police Station City Renala Khurd, were tried by learned Additional Sessions Judge, Renala Khurd, Okara, who vide judgment dated 25.02.2022 while acquitting the afore-said Abdul Ghafoor convicted and sentenced them as under:- Alam Sher (appellant)
Under Section 302(b) PPC to suffer death sentence as to'zir for committing qatl-i-amd of Maskeen Ali. He was also directed to pay compensation of Rs.5,00,000/- in terms of 544-A Cr.P.C. to the legal heirs of the deceased and in default whereof to undergo simple imprisonment for 06-months.
Bashir Ahmad (appellant)
(i). Under Section 324 PPC to suffer rigorous imprisonment for 10-years along with fine of Rs.5,000/- and in default whereof to further undergo simple imprisonment for 2-months.
(ii). Under Section 334 PPC to suffer rigorous imprisonment for 10-years along with payment of Arsh of 11,60,101/- i.e. half of Diyat amount as notified by the Government in the year 2019 to injured lady Zareena Bibi. Till the payment of Arsh amount, Bashir Ahmad (appellant) was ordered to be kept in jail and shall undergo simple imprisonment. Both the sentences were ordered to run concurrent and benefit of Section 382-B, Cr.P.C. was extended to the appellant.
Challenging their conviction and sentence Alam Sher & Bashir Ahmad (appellants) filed two separate appeals i.e. Criminal Appeal No.27076-J of 2022 & Criminal Appeal No.27077-J of 2022 respectively, whereas trial court forwarded a reference which was numbered as Murder Reference No.58 of 2022 under Section 374 Cr.P.C. to seek confirmation or rejection of the death sentence imposed on the former convict. All these matters are being decided through this single judgment.
2. Tersely, the facts of the prosecution case as disclosed by Khurshid Bibi complainant (PW.15) in FIR (Exh.PW.1/B) are that on 16.07.2019 she along with Maskeen Ali, Riaz and Farman went to Chak No.22/RB-I Loospura to inquire about the health of Zarina Bibi and were sitting in a room on cots. At about 3:30 p.m. Alam Sher (appellant) armed with pistol .30 bore, Bashir (appellant) armed with .44 bore rifle, Ghafoor (since acquitted) armed with .44 bore rifle and two unknown persons, who were also equipped with firearms and could be identified if brought before the complainant, came there on two motorcycles. Alam Sher (appellant) raised Lalkara to catch Maskeen Ali etc and be done to death for coming in the area of the accused and fired a shot from his .30 bore pistol which landed on the right side of the forehead of Maskeen Ali. The second shot fired by Bashir (appellant) from his .44 bore rifle landed at the right side of flank of Zarina Bibi. The third shot fired by Bashir hit Maskeen Ali at the middle of his head due to which blood started oozing out from his mouth. The complainant, her son Riaz and Farman Ali saved their lives while hiding themselves beneath the cots. The accused managed their escape good from the spot while brandishing their weapons. It was further stated in the FIR that accused Nooran Bibi alias Kako, who is mother-in-law of Alam Sher (appellant) and lives in Chak No.22/RB-I, informed the accused through phone regarding the presence of the complainant etc and disclosed their location while accompanying the accused.
The motive for the occurrence was that about 1 1/2 year prior to the occurrence Naseem Bibi and Ashiq were murdered by accused Bashir, Alam Sher and Ghafoor for which a case was registered at Police Station Chutiana, District Toba Tek Singh and Maskeen Ali had been murdered to stop him from pursuing the aforesaid case.
3. On 16.07.2019 investigation of the case was entrusted to Rai Mushtaq Ahmad SI (PW.20), who visited the place of occurrence, drafted unscaled site plan and handed over the dead body of deceased to Ziawad Ali 1926/C for escorting it to the hospital for autopsy. From the spot, he also took into possession blood stained cotton, two crime empties of rifle .44 bore, two cots (P.12/1-2) through memo Exh.PW16/C. He also drafted un-scaled site plan of the place of occurrence (Exh.PW.20/A).
Subsequently, the task of investigation was assigned to Muhammad Munir SI (PW.21), who on 07.12.2019 came to know about the confinement of the appellants in District Jail, Sialkot and on 28.12.2019 got their transitory remand from Illaqa Magistrate Sialkot. During interrogation accused Bashir (appellant) and Abdul Ghafoor (since acquitted) made disclosure that they had already got recovered the weapons of offence in Police Station Muradpur Sialkot in another case which they had used in the instant occurrence. On 08.01.2020 he visited Police Station Muradpur, Sialkot and joined with the investigation Ghulam Murtaz ASI (PW.8), Sehar Razzaq ASI (PW.7) who presented before him recovery memo Exh.PW.7/A of rifle .223 bore (P.6) which was allegedly recovered from accused Abdul Ghafoor (since acquitted) and recovery memo Exh.PW.7/B or rifle .44 bore (P.8) which was allegedly recovered from Bashir (appellant). He also shifted extracts of FIR No.537/2019 and FIR No.539 of 2019 of Police Station Muradpur, Sialkot in the present case. On 10.01.2020 Alam Sher (appellant) made disclosure and in pursuance thereof led to the recovery of .30 bore pistol (P.3) and motorcycle Honda 125 (P.4) vide memos Exh.PW.5/A & Exh.PW.5/B respectively. He after recording the statements of relevant witnesses under Section 161 Cr.P.C. got submitted report under Section 173 Cr.P.C. through the concerned SHO.
4. Prosecution in order to prove its case against the accused produced twenty two witnesses, out of whom Dr.Tayyab Saleem (PW.12), Dr.Tariq Mehmood (PW.13) and Dr.Hanzla Khalid (PW.14) furnished the medical evidence, Mst.Khurshid Bibi (PW.15), Riaz Ahmad (PW.16) and Mst.Zarina Bibi injured (PW.17) narrated the ocular account, Rai Mushtaq Ahmad SI (PW.20) & Muhammad Munir SI (PW.21) investigated the instant case. The remaining PWs more or less were formal in nature.
5. Dr.Tariq Mehmood (PW.13) on 17.07.2019 at about 7:20 a.m. performed the autopsy over the dead body of Maskeen Ali and noted the following injuries:- (1). Lacerated wound 6 x 1 cm on middle of top of head. It was scalp deep, blackening and burning were present.
(2) Lacerated wound 1 x 1 cm on right side of forehead just 3 cm above right eyebrow, blackening and burning were present, margin were inverted. The wound was deep going. Area of frontal bone was fractured and right side of mandible bone was also fractured.
According to the opinion of the doctor, the death in this case occurred due to injury No.2 which damaged vital organ brain, resulting in neurogenic shock and hypovolemic shock. The doctor described the probable time between injury and death as uncertain and between death and postmortem as 15-hours.
6. After the conclusion of prosecution evidence, the appellants were also examined under Section 342 Cr.P.C. who in response to question "why this case against you and why the PWs deposed against you" made almost the same reply. For reference sake the reply tendered by Alam Sher (appellant) is reproduced hereunder:- "The PWs deposed against me just being close relatives of the deceased and no independent witness has come in the witness box to depose against me. No independent witness of any recovery has come forward. I have been roped in this case along with others just to save some beloved persons. I am innocent. Deceased Maskeen Ali was my close relative and was my friend. I, my co-accused and Maskeen Ali had been co-accused in some criminal cases and no question arises for murder of Maskeen Ali at all."
Appellants did not opt to appear as of their own witness under Section 340(2), Cr.P.C., however, produced certain documentary evidence in their defence. On the conclusion of trial, the appellants were convicted and sentenced as afore-stated, hence the instant criminal appeals and murder reference.
7. It is contended by learned counsel for the appellants that there is a delay of about three hours in lodging the FIR for which no plausible explanation was tendered by the complainant. The ocular account comprising three witnesses including an injured eyewitness is discrepant and their testimonies cannot be relied upon for upholding the convictions of the appellants. The medical evidence contradicts the statements of the eyewitnesses. The recovery of weapons of offence allegedly affected at the stance of the appellants is dubious in nature and cannot corroborate the ocular account in any manner. The motive set up in the FIR remained unproved. In the light of the aforesaid submissions it is prayed that since the whole prosecution case is highly doubtful, hence the appellants deserve clean acquittal.
8. Contrarily, the complainant well assisted by learned law officer opposed the arguments advanced on behalf of the appellants and submitted that the matter was reported to the police within a reasonable time. The ocular account was furnished by three eyewitnesses who successfully proved their presence at the crime scene. The medical evidence is in absolute conformity with the ocular account. The positive report of PFSA is another factor which proves the guilt of the appellants. Furthermore, the motive set out in the FIR is fully proved. It is thus urged that the appellants' appeals be dismissed while upholding their conviction and sentence.
9. Arguments heard. Record perused.
10. From the perusal of the record, it is discernable that the instant case revolves around an incident which took place on 16.07.2019 at about 3:30 p.m. in an area known as Chak No.22/RB-I situated at a distance of 05-kilometers from Police Station City Renala Khurd, District Okara. During the occurrence, allegedly one Maskeen Ali lost his life after the receipt of two firearm injuries at the hands of Alam Sher and Muhammad Bashir (appellants), besides that Mst.Zarina Bibi (PW.17) also received a firearm injury due to the shot fired by Muhammad Bashir (appellant). In spite of detailed narration of occurrence complaint (Exh.PW.1/A) or the statement of Mst.Khurshid Bibi complainant (PW.15) did not contain the fact where Maskeen Ali (deceased) died and within how much time of the occurrence. There is only reference of the fact that after receiving two fire shots blood started oozing out from the mouth of Maskeen Ali (deceased). The information regarding the occurrence was conveyed by Mst.Khurshid Bibi complainant (PW.15) by presenting a written application (Exh.PW.1/A) before Zafar Iqbal ASI (PW.1) at Police Station City Renala Khurd. From examining the record it manifests that pursuant to the submission of Exh.PW.1/A, a Rapat No.38 dated 16.07.2019 was entered at 6:45 p.m. and accordingly FIR (Exh.PW.1/B) was chalked out. In this way, we have noted that there is a delay of about 02-hours and 45-minutes for which no plausible explanation was tendered by Mst.Khurshid Bibi complainant (PW.15). This delay is the significant factor when seen in the context that the crime scene is situated at 5-kilometers away from Police Station City Renala Khurd. In addition to above, we have observed that Mst.Khurshid Bibi complainant (PW.15) got the FIR (Exh.PW.1/B) chalked out by moving written application (Exh.PW.1/A). However, the record of the case is in absolute silence that who drafted the application (Exh.PW.1/A) for her. Furthermore, as per record besides Khurshid Bibi complainant (PW.15) and Mst.Zarina Bibi injured (PW.17),the incident was also witnessed by Riaz Ahmad (PW.16), the son of the former, but astonishingly he himself did not come forward to get the FIR (Exh.PW.1/B) registered and instead Khurshid Bibi complainant (PW.15) an old lady was pushed ahead for chalking out the FIR (Exh.PW.1/B). It has also been noted by us that during his cross-examination Riaz Ahmad (PW.16) admitted that "there are dozen of cases registered against me including one case of dacoity and a case u/s 324 PPC", which speaks volume of the fact that he was not oblivious of the repercussions of delayed FIR. The record of the case also shows that as per inquest report (Exh.PW.13/C) the police acquired knowledge about the commission of crime on 16:07.2019 at about 4:00 p.m. i.e. within thirty minutes of the occurrence. The account of events described above leads this Court to an unavoidable conclusion that the police was informed regarding the incident after a significant delay, and an anti-time FIR was filed following the stoppage of Rozenamcha merely to present it as a swiftly registered FIR, drafted through consultation and discussion, while detailing the involvement of each accused according to the complainant's choice. In such scenario, this Court has a major responsibility to evaluate the prosecution's evidence for maintaining the appellants' conviction with careful consideration, particularly regarding the capital sentence charge. Reliance is placed upon the case reported as Ghulam Abbas and another v. The State and another (2021 SCMR 23) wherein the Supreme Court of Pakistan while dealing with a criminal case reported with delay held as under:- "No explanation whatsoever was furnished by the complainant for this delay in reporting the crime to the police. Hameed Ullah Khan SI (PW.15) who investigated the case during his cross- examination that he reached at the place of occurrence at about 5.00 a.m. and he had completed the police proceedings by 06.30 p.m. In the circumstances, chances of deliberations and consultations before reporting the matter to the Police cannot be ruled out."
11. Nevertheless, Mst.Khurshid Bibi complainant (PW.15) during cross-examination stated that "Police came at the spot at 08:00 p.m." Conversely, Rai Mushtaq Ahmad SI/Investigating Officer (PW.20) took the stance that after the receipt of information about the incident he along with 3/4 constables arrived at the place of occurrence at 7:00 p.m. and remained there till 8:00 p.m. Rai Mushtaq Ahmad SI/Investigating Officer (PW.20) also stated that according to PMR, the dead body of the deceased was received in the hospital at 7:20 a.m. on 17.07.2019, however showed inability in apprising the trial court that where the dead body remained between 7:15 p.m. of 16.07.2019 to 7:20 a.m. of 17.07.2019. Rai Mushtaq Ahmad SI/Investigating Officer (PW.20) further admitted that he did not record any case diary in this regard. The relevant portion of cross-examination of Rai Mushtaq Ahmad SI/Investigating Officer (PW.20) is mentioned hereunder:- "I cannot say where the dead body of the deceased remained in between the time from its departure at about 7:15 p.m. dated 16.07.2019 to 07:20 a.m. dated 17.07.2019. I did not record any case diary on 17 and 18.7.2019 as no investigation was conducted on these two days, so no case diary was recorded on 17.07.2019 and 18.7.2019."
It is further noticed by us that according to Dr.Tariq Mehmood (PW.13) who conducted postmortem over the dead body of Maskeen Ali (deceased), observed "the probable time between injury and death was uncertain.....", meaning thereby that the doctor was not sure as to whether Maskeen Ali (deceased) died immediately after the receipt of injuries or not. We have minutely perused FIR (Exh.PW.1/B) and the statements of all the three eyewitnesses but found no explanation on their part as to whether Maskeen Ali (deceased) died at the spot or in the hospital.
12. The factum of reporting the crime with deliberation can further be fortified from the delayed postmortem examination of Maskeen Ali (deceased). In this regard, it is observed that the autopsy over the dead body of Maskeen Ali is noticed to have been conducted on 17.07.2019 at 7:20 a.m. If correctly calculated, a delay of approximately 15-hours is noticed in holding the autopsy, for which the prosecution has offered no explanation whatsoever during the trial. Considering that the occurrence had not taken place in a distant location from District Headquarters Okara the delay in the postmortem examination raises the possibility that the time was consumed in concocting the story of the crime and procuring the witnesses. In arriving at such a conclusion, we are enlightened by the observation of the Supreme Court of Pakistan in the case of Muhammad Ilyas v.
Muhammad Abid alias Billa (2017 SCMR 54) wherein it was held as under:- "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 toward a possibility that the time had been consumed by the local police and complainant party in procuring and planting eye-witnesses and cooking up a story for the prosecution."
13. During the occurrence the ocular account in this case was furnished by Mst.Khurshid Bibi (PW.15), Riaz Ahmad (PW.16) and Mst.Zarina Bibi (PW.17), out of them the latter received firearm injuries. Before marching any further we are mindful of the fact that Mst. Zarina Bibi (PW.17) claimed to have received firearm injuries during the incident, inflicted by Bashir (appellant). The injuries on the person of Mst. Zarina Bibi (PW.17) were vociferously described by the prosecution as stamp of her truth. A pressing need is felt by us to mention here that injuries statedly received by a witness during a homicidal incident do not warrant acceptance without scrutiny of what he/she deposes before the court. At the most such traumas can be taken as indication of his/her presence at the spot but still such evidence is to be examined on the benchmark of general and well settled principles laid down for the appraisal of evidence. There is no hard and fast rule that a witness who is in receipt of injury will depose nothing but truth. Even otherwise this is not a simple presence of a witness at the crime scene but his/her credibility which makes him/her a reliable witness.
Reference in this regard is made to the case reported as Amin Ali v. The State (2011 SCMR 323) wherein the Supreme Court of Pakistan observed as under:- "Certainly, the presence of injured witnesses cannot be doubted at the place of incident, but the question is as to whether they are truthful witnesses or otherwise, because merely the injuries on the person of P.Ws. would not stamp them truthful witnesses."
In another case reported as Nazir Ahmad v. Muhammad Iqbal and another (2011 SCMR 527), the Supreme Court of Pakistan while examining the case of an injured witness observed as under:- "It is settled law that injuries of PWs are only indication of his presence at the spot but are not affirmative proof of his credibility and truth. SeeSaid Ahmed's case (1981 SCMR 795) and Muhammad Pervez's case (2007 SCMR 670)."
After having examined the evidence of Mst. Zarina Bibi (PW.17) with extreme circumspection, we have come across certain factors persuading us not to place explicit reliance upon her deposition.
It is noticed by us that claim of Mst. Zarina Bibi (PW.17) about having received a firearm injury on the right side of her flank was surrounded amidst doubt. In this regard, we have noticed that Mst.Zarina Bibi (PW.17) during cross-examination stated that "I was shifted to Okara Hospital by the police and thereafter dead body of the deceased was shifted by his heirs..." Furthermore, Mst.Khurshid Bibi complainant (PW.15) during cross-examination stated that "Police recorded partial statement of Zarina PW and took her along with her relatives to Okara Hospital in official vehicle." However, the statements of both the Investigating Officers, namely Rai Mushtaq Ahmad SI (PW.19) and Muhammad Munir SI (PW.20) are silent with regard to shifting of Mst. Zarina Bibi injured (PW.17) to the hospital under the escort of any police official, Rai Mushaq Ahmad SI/Investigating Officer (PW.19) in his examination-in-chief only mentioned the inspection of dead body of Maskeen Ali (deceased) and nowhere mentioned that he found Mst. Zarina Bibi injured (PW.17) at the spot or sent her to the hospital under the escort of some police official. We have also noticed that the prosecution produced Dr.Tayyab Saleem (PW.12) and Dr.Tariq Mehmood (PW.13) in order to prove that the former doctor referred Mst. Zarina Bibi injured (PW.17) to Jinnah Hospital, Lahore due to her precarious condition and the latter doctor examined her on 17.07.2019. Both these doctors also produced referral form (Exh.PW.12/A), Bed Head Ticket of DHQ Hospital (Exh.PW.12/B) as well as original operation notes (Exh.PW.14/A), Exh.PW.14/B & Exh.PW.14/C. We have minutely perused the documents produced by these doctors and have not come across the exact time when Mst.Zarina Bibi injured (PW.17) was received in DHQ Hospital. Furthermore, we took note of the fact that murder incident took place on 16.07.2019, whereas 161 Cr.P.C statement of Mst.Zarina Bibi injured (PW.17) was recorded on 19.11.2019 as is evident from the following words of her cross-examination:- "It is correct that the only statement of mine dated 19.11.2019 is available in police file."
From above, it manifests that there is a delay of about 126-days in recording 161 Cr.P.C. statement of Mst.Zarina Bibi injured (PW.17). The afore-mentioned delay gains more significance when seen in the context that both the Investigating Officers i.e. Rai Mushtaq Ahmad SI (PW.19) and Muhammad Munir SI (PW.20) never made any attempt to record the statement of Mst.Zarina Bibi injured (PW.17) during the afore-mentioned period. Above all, no application moved by the Investigating Officer for ascertaining the fitness of Mst.Zarina Bibi injured (PW.17) to make a statement is available on record nor any medical opinion in support of prosecution case is annexed with the file. In the given circumstances, the delay of 126-days in recording 161 Cr.P.C statement of Mst.Zarina Bibi injured (PW.17) gives rise to many doubts which ought to be resolved in favour of appellants. While holding so, we are guided by the observation of the Supreme Court of Pakistan expressed in the case reported as Muhammad Asif v. The State (2017 SCMR 486) wherein it was observed as under:- "There is a long line of authorities/precedents of this court and the High Courts that even one or two days unexplained delay in recording the statement of eye-witness would be fatal and testimony of such witnesses cannot be safely relied upon."
In the given circumstances, it will be an erroneous approach to accept the deposition of Mst. Zarina Bibi injured (PW.17) by giving her the benefit of being injured witness so as to uphold the appellants' conviction.
14. As regards remaining two eyewitnesses, namely Mst. Khurshid Bibi (PW.15) and Riaz Ahmad (PW.16), we have noticed that both are related to the deceased as wife and son respectively. As per inquest report (Exh.PW.13/C), the police received the information regarding the crime in question on 16.07.2019 at about 4:00 p.m. and the dead body of the deceased was identified by Usman Ali (given up PW) and Nazir Ahmad (PW.9). This fact alone damages the canvassed stance of the prosecution that the afore-mentioned two witnesses saw the incident because had they been present at the spot they would have identified the dead body. Moreover, both these eyewitnesses in their respective examination-in-chief took the stance they were residents of Loonawala, Tehsil and District Chiniot and they along with Maskeen Ali (deceased) and Farman (given up PW) reached Loospura to inquire about the health of Mst.Zarina Bibi (PW.17) and it was Nooran Bibi who brought the accused by calling them through phone. However, during investigation conducted by Rai Mushtaq Ahmad SI (PW.20) said Nooran Bibi was found not involved in the instant case. The declaration of innocence in favour of Nooran Bibi can further be verified from the following portion of cross-examination of Rai Mushtaq Ahmad SI (PW.20):- "Thereafter, I conducted investigation on 04.08.2019 as a result of which Nooran Bibi accused was found innocent and she was marked innocent on 06.08.2019."
Similarly, according to injured eyewitness Mst.Zarina Bibi (PW.17) she was not related to Mst.Khushid Bibi complainant (PW.15) at all rather Mst.Khurshid Bibi complainant (PW.15) and others were related to the accused Alam Sher etc (appellants). Since this is an important aspect, hence an excerpt from the cross-examination of Mst.Zarina Bibi injured (PW.17) is mentioned hereunder:- "Khursheed Bibi is not my relative and Maskeen deceased was also not my relative although they are relative of accused Alamsher etc."
Similarly, Mst.Khurshid Bibi complainant (PW.15) during cross-examination stated that "I do not know when and wherefrom Zarina injured PW got her operation of tumor (Rasoli)." In such circumstances there was no occasion for Mst.Khurshid Bibi complainant (PW.15) and others to visit Loospura for asking the health of Zarina Bibi injured (PW.17). In addition to above, it is noticed that Mst.Khurshid Bibi complainant (PW.15), Maskeen Ali (deceased), Mst.Zarina Bibi injured (PW.17) and others were sitting on cots when the incident occurred and Mst.Khurshid Bibi complainant (PW.15) stated during cross-examination that "Zarina injured PW remained lying upon the cot in injured condition till the arrival of the police.......No one did fire towards Farman and Riaz when they were behind the cot." However, Mst.Zarina Bibi injured (PW.17) during cross-examination stated that:- "The accused did direct fires upon their Cot which hit the Cot and also nearby walls."
During spot inspection Rai Mushtaq Ahmad SI/Investigating Officer (PW.20) took into possession two cots (Exh.PW16/C) and besides that he took two snaps of the deceased through memo Exh.PW.4/A. We have carefully seen Exh.PW.16/C & Exh.PW.4/A and found that the cots were never sent to the office of PFSA for forensic analysis regarding the stains of bloods on the cots, if any. We have also observed that Mst.Khurshid Bibi complainant (PW.15) while lodging the FIR (Exh.PW.1/B) took the stance that besides the nominated accused, two unknown accused equipped with firearms also came at the place of occurrence and took their positions as guards outside the house, however it is crystal clear that neither during investigation nor at trial stage the identity of the two unknown accused came on record. From the above, we are convinced that the ocular evidence presented on record through the prosecution witnesses as mentioned earlier, is not credible, and whatever they stated before the trial court was nothing but a jumble of lies.
15. The ocular account furnished by the afore-mentioned three witnesses is also negated by the statement of Dr. Tariq Mehmood (PW.15) who conducted the autopsy of Maskeen Ali (deceased) on 17.07.2019 at about 7:20 a.m. According to the doctor, in total he found two firearm injuries on the person of Maskeen Ali (deceased), out of which injury No.2 was entry wound and injury No.1 was its exit. From above, the stance of the eyewitnesses that Maskeen Ali (deceased) received two injuries on his head at the hands of Alam Sher and Bashir Ahmad (appellants) is not in consonance with the medical evidence, thus no reliance can be placed upon the statements of witnesses who narrated the ocular account. Needless to mention here that the Court is not required to give an alternative reasoning of any lacuna, may it be emerging from medical evidence, rather is to restrict itself only to the extent that the detail of crime set out by the prosecution is apparently ringing true or not. The collection of medical evidence at investigation stage and its subsequent tendering during trial is primarily aimed at enabling the Court to get help for ascertaining the truth behind deposition of an eyewitness. If the ocular account gives rise to some inconsistency after being subjected to scrutiny through medical evidence, it warrants rejection of the tale of incident furnished by eyewitnesses. Reliance is placed upon the case reported as Abdul Jabbar and another v. The State (2019 SCMR 129) wherein the Supreme Court of Pakistan while dilating upon conflict 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."
16. We have observed that according to PFSA report (Exh.PP/2) one crime empty of .30 bore pistol was found to have been fired from .30 bore pistol recovered from Alam Sher (appellant). However, we have noticed that the first Investigating Officer, namely Mushtaq Ahmad SI (PW.20) visited the spot on the day of occurrence but neither during his examination-in-chief nor in cross- examination mentioned the collection of any crime empty of .30 bore pistol, he only mentioned that "I collected blood stained cotton from the place of occurrence and two crime empties of rifle 44 bore vide recovery memo Exh.PW.16/B." Column No.23 of inquest report (Exh.PW.13/C) is also found by us as blank regarding the securing of any crime empty from the spot. It further unveils from the perusal of record that the appellants were shown arrested on 28.12.2019 when Muhammad Munir SI/Investigating Officer (PW.21) got transitory remand from the concerned Magistrate.
According to record, .44 bore rifle (P.8) allegedly used by Bashir (appellant) already taken into possession by Police of Police Station Muradpur, was secured by Muhammad Munir SI (PW.21) vide memo (Exh.PW.8/B). During interrogation Alam Sher (appellant) also got recovered pistol .30 bore (P.3) vide memo Exh.PW.5/A. Muhammad Hussain 52/HC (PW.2) who was performing his duties as Moharrar at the relevant time, in his Court statement stated that on 30.07.2019 he handed over one sealed parcel said to contain blood stained cotton, one sealed parcel said to contain crime empties etc. to Mushtaq Ahmad SI for its dispatch to the office of PFSA. Similarly, Rai Mushtaq Ahmad SI (PW.20) stated that "on 30.07.2019 parcels were transmitted to the office of PFSA....". Conversely, we have perused the report of PFSA (Exh.PP/2) and it unveils that the parcels of crime empties and the pistol recovered from Alam Sher (appellant) were dispatched to the office of PFSA for comparison on 17.12.2020. In this way, the transmission of parcels and their deposit to the office of PFSA is highly doubtful. It was, however reported in PFSA report that "the item C1 cartridge case was identified as having been fired in the item P1 pistol". Since the crime empties and pistol were deposited in the PFSA office on a single day, hence the positive report (Exh.PP/2) is inconsequential and discarded out of consideration. Likewise, the recovery of .44 bore rifle at the instance of Bashir (appellant) without any report from PFSA is also of no use to the prosecution.
17. The motive of the incident as canvassed by the prosecution is that one Naseem Bibi and Ashiq were murdered by accused Bashir, Alam Sher and Ghafoor for which a case was registered at Toba Tek Singh and Maskeen Ali (deceased) was murdered to forbid him from pursuing that case. In this regard, we have observed that though all the three witnesses of ocular account stated in support of the motive, however it also came on record that the complainant of the murder case of Naseem Bibi etc. was Arif Ali, whereas Abdul Sattar and Abdul Jabbar witnessed the incident of motive case.
Mst.Khurshid Bibi complainant (PW.15) during cross-examination also admitted that:- "Neither I, nor my sons nor deceased Maskeen Ali were witnesses or complainant in that case."
Mst. Khurshid Bibi complainant (PW.15) also admitted in unequivocal terms that:- "The deceased Maskeen was not having enmity with anyone."
In view of the situation highlighted hereinabove, the prime targets for the accused-appellants should have been the complainant and other eyewitnesses of the motive case, however the appellants did not give them a single scratch. This aspect was further admitted by Riaz Ahmad eyewitness (PW.16) with the following words:- "I am aware of FIR No.63/2018 P.S Chatiyana District Toba Tek Singh and the complainant of the said case was Arif ali. Neither I nor deceased Maskeen Ali, nor complainant, nor injured Zarina Bibi is complainant, nor witnesses in that case. The complainant of that case is Arif s/o Ashiq Ali while witnesses are Abdul Sattar and Abdul Jabbar while deceased were Ashiq Ali and Naseem Bibi.
Same is position of PW Farman Ali. The accused persons had not assaulted upon said Arif Ali complainant and Abdul Sattar and Abdul Jabbar witnesses of FIR No.63/2018."
From above it can easily be gathered that there was no reason for the appellants/accused to take the life of Maskeen Ali (deceased). Thus, the motive set out in the FIR is nothing but an overzealous attempt to strengthen the frail prosecution case. It is well settled that once the motive is set up by the prosecution and the same is not proved, the prosecution shall suffer. Reliance in this context may be placed upon the case reported as Sarfraz and another v. The State (2023 SCMR 670) wherein the Supreme Court of Pakistan held as under:- "It is now well established that if a specific motive has been alleged by the prosecution then it is duty of the prosecution to establish the said motive through cogent and confidence inspiring evidence. Otherwise, the same would go in favour of the accused."
18. In the light of the facts and circumstances enumerated above, we feel no hesitation in holding that the prosecution has failed to discharge its burden of substantiating the charges against the appellants beyond a reasonable doubt. Even otherwise, it is a settled principle of law that where the prosecution's case contains doubts, such as mentioned in the foregoing paragraphs, the benefit of such doubts accrues in favour of the accused. Needless to mention here that for granting the benefit of doubt, the existence of many circumstances is not essential; rather, a single circumstance which creates a reasonable doubt in the veracity of the prosecution can be taken into consideration. Reliance is placed upon the cases reported as Tariq Parvez v. The State (1995 SCMR 1345), Muhammad Akram v. the State (2009 SCMR 230), and Muhammad Imran v. The State (2020 SCMR 857). Resultantly, while giving the benefit of doubt in favour of Alam Sher and Bashir Ahmad (appellants), Criminal Appeal No.27076-J of 2022 & Criminal Appeal No.27077-J of 2022 are allowed and in consequence thereof, their conviction and sentence are set aside and they stand acquitted of the charges. Alam Sher and Bashir Ahmad (appellants) are in jail; they be released forthwith if not required to be detained in any other criminal case.
19. Consequently, Murder Reference No.58 of 2022 is answered in the NEGATIVE, and the death sentence awarded to Alam Sher (convict) is NOT CONFIRMED.