Farooq Haider, J.:- This appeal has been filed by Ali Hassan, Amjad Ali, Imran Ali and Asad Nazar (appellants) against the judgment dated: 29.11.2022 passed by learned Additional Sessions Judge, Lahore/trial court whereby in case arising out of F.I.R. No.1148/2019 dated: 09.04.2019 registered under Sections: 324, 379 PPC (subsequently, offences under Sections: 452, 148, 149 PPC were added and then Section: 302 PPC was also added whereas offence under Section: 379 PPC was deleted) at Police Station: Kahna, Lahore, appellants have been convicted and sentenced as under:- ASAD NAZAR Convictions Sentences Under Section: 302 (C)PPCSixteen Year's Rigorous Imprisonment" along with compensation of Rs.500,000/- u/s 544-A Cr.P.C. to the legal heirs of the deceased Fiaz which was ordered to be recovered as arrears of land revenue and in default of payment of compensation to further undergo S.I. for six months.
Under Section: 452 PPC"Seven Year's Rigorous Imprisonment" with fine of Rs.50,000/- and in default thereof to further undergo S.I. for one month.
Under Section: 148 PPC"Three Year's Rigorous Imprisonment".
All the sentences of imprisonment were ordered to run concurrently.
ALI HASSAN Convictions Sentences Under Section: 302 (C)PPCOne Year simple Imprisonment" along with compensation of Rs.500,000/- u/s 544-A Cr.P.C. to the legal heirs of the deceased Fiaz which was ordered to be recovered as arrears of land revenue and in default of payment of compensation to further undergo S.I. for one months.
Under Section: 452 PPC"One Year simple Imprisonment" with fine of Rs.50,000/- and in default thereof to further undergo S.I. for one month.
Under Section: 148 PPC"One Year simple Imprisonment".
All the sentences of imprisonment were ordered to run concurrently.
IMRAN ALI Convictions Sentences Under Section: 302 (C)PPC"Three Year's Rigorous Imprisonment" along with compensation of Rs.500,000/- u/s 544-A Cr.P.C. to the legal heirs of the deceased Fiaz which was ordered to be recovered as arrears of land revenue and in default of payment of compensation to further undergo S.I. for one months.
Under Section: 452 PPC"Three Year's Rigorous Imprisonment" with fine of Rs.50,000/- and in default thereof to further undergo S.I. for one month.
Under Section: 148 PPC"One Year Rigorous Imprisonment".
All the sentences of imprisonment were ordered to run concurrently.
AMJAD ALI Convictions Sentences Under Section: 302 (C)PPC"Two Year's Rigorous Imprisonment" along with compensation of Rs.500,000/- u/s 544-A Cr.P.C. to the legal heirs of the deceased Fiaz which was ordered to be recovered as arrears of land revenue and in default of payment of compensation to further undergo S.I. for one months.
Under Section: 452 PPC"Two Year's Rigorous Imprisonment" with fine of Rs.50,000/- and in default thereof to further undergo S.I. for one month.
Under Section: 148 PPC"One Year Rigorous Imprisonment".
All the sentences of imprisonment were ordered to run concurrently.
Benefit of Section: 382-B Cr.P.C. was also extended to all the convicts.
It is pertinent to mention here that today learned counsel for the appellants did not press rather withdrew this appeal to the extent of Ali Hassan, Amjad Ali, Imran Ali (appellants No.1, 2 & 3, respectively), hence, it has already been dismissed as withdrawn and not pressed to their extent vide separate order of even date whereas same is alive only to the extent of Asad Nazar (appellant No.4, hereinafter to be referred as "appellant").
2. Briefly, the facts are that Abdul Rasheed (complainant/PW-2) moved application (Ex.PB) for registration of case; for ready reference, same is hereby scanned below: - On the basis of aforementioned application (Ex.PB), First Information Report (F.I.R./Ex.PU) was recorded on 09.04.2019 at Police Station: Kahna, Lahore. However, subsequently, Abdul Rasheed (complainant/ PW-2) moved another application (Ex.PC), which is also scanned as under:-
3. After investigation, report under section 173 Cr.P.C. was submitted in the Court; appellant and his co-accused persons were sent for trial; charge was framed against them to which they pleaded not guilty and claimed trial whereupon prosecution evidence was summoned; after recording of prosecution evidence, appellant and his co-accused persons were examined under Section: 342 Cr.P.C. but they refuted the allegations levelled against them; they did not appear as their own witness under Section: 340(2) Cr.P.C., however, produced some documents as evidence in their defence.
Trial Court after conclusion of trial has convicted and sentenced the appellant and his co-accused persons (as mentioned above) through impugned judgment dated: 29.11.2022.
4. Learned counsel for appellant has submitted that conviction recorded and sentence awarded to Asad Nazar (appellant No.4) through impugned judgment are against the 'law and facts' of the case; case was registered with delay; ocular account is not supported by medical evidence; recovery is inconsequential; prosecution has remained unable to prove its case. Learned counsel for the appellant finally prayed for acquittal of said appellant.
5. Learned Deputy Prosecutor General and learned counsel for the complainant while supporting the impugned judgment submit that prosecution has proved its case beyond shadow of doubt against Asad Nazar (appellant No.4) through cogent and reliable evidence and prayed for dismissal of appeal to his extent.
6. Arguments heard. Record perused.
7. It has been noticed that as per case of prosecution, occurrence took place on 07.04.2019 at 10.30 a.m., however, case was registered on 09.04.2019 at 5.25 p.m. but any plausible/convincing reason to explain said delay is not available on the record, therefore, case has been registered with unexplained delay. It is very much important to mention here that as per own document of the prosecution i.e. injury statement of Muhammad Fayyaz (now deceased of the case) brought on record and got exhibited as Exh.PS (copy whereof is available at page No.203 of the paper-book), Muhammad Fayyaz after becoming injured during quarrel came to the Police Post who was sent with Shah Muhammad Constable No.2028 for medical treatment and as a result of medical examination, three injuries were mentioned in said injury statement which is hereby scanned below:- Perusal of aforementioned injury statement (Exh.PS) reveals that Muhammad Fayyaz (then injured, now deceased of the case) himself came to the Police-Post and after recording Rapt No.8 dated 07.04.2019 in the Daily Diary (Roznamcha), his injury statement was prepared and he was sent for medical treatment and issuance of medicolegal examination certificate, so Rapt No.08 was the First Information Report regarding occurrence within purview of Section 154 Cr.P.C. but same has not been brought on the record which goes against the prosecution under Art.129(g) of the Qanoon-e-Shahadat Order, 1984. It is relevant to mention here that perusal of Exh.PS (injury statement) further reveals that it is nowhere recorded in the same that Fayyaz was accompanied by complainant or any other cited eyewitness when he came to police post. He was got medically examined by Shah Muhammad constable, his medicolegal examination certificate (Exh.PAA) is available at page No.215 & 216 of the paper-book, perusal whereof reveals that he was mentioned as vitally stable by the Medical Officer Dr. Haris Siddiqui (PW-12) who conducted his medicolegal examination.
Dr. Haris Siddiqui ( PW-12) in his cross-examination has clearly stated that vitally stable means patient's blood pressure, heart rate and respiratory rate was within normal limits; in this regard, relevant portion of his statement is hereby reproduced:- "Vitally stable means patient's blood pressure, heart rate and respiratory rate was within normal limits."
In spite of the fact that Fayyaz was vitally stable, he did not mention name of the appellant as assailant and relevant portion of statement of PW-12 is hereby reproduced:- "In the brief history, there is no mention of name of any assailants."
It is relevant to mention here that occurrence took place on 07.04.2019 at 10.30 a.m., Fayyaz went to the Police Post, Rapt No.8 was also recorded in this regard (which has not been brought on record).
He was vitally stable as mentioned by the doctor but case was even not registered on the day of occurrence. Although there was no impediment in the way of registering the case on the day of occurrence or at least recording statement of Fayyaz regarding detail of assailants as well as occurrence but any such statement of Fayyaz is not available on record. Though application for recording statement of Fayyaz has been brought on record (Exh.PT available at page No.204 of the paper-book) but it is relevant to mention here that same was not filed on the day of occurrence or on the day of medical examination of Fayyaz i.e. 07.04.2019 rather on 09.04.2019 at 5.30 p.m. and medical officer mentioned that patient was not fit for recording statement at the moment which application is scanned below for ready reference:- So, prosecution could not provide any convincing justification that why the statement of Fayyaz was not recorded on the day of occurrence on 07.04.2019 or on the following day of occurrence i.e. 08.04.2019, therefore, on the one hand, case was registered with unexplained delay whereas on the other hand, even statement of Fayyaz (then injured, now deceased of the case) was not recorded on the day of occurrence or on the subsequent day and this state of affair leads to the conclusion that First Information Report has been recorded after consultation, deliberation as well as inducement, procurement and engagement of witnesses as well as tailoring story for the prosecution. By now it is well settled that First Information Report (Crime report) is the cornerstone and foundational element of the case of prosecution and if same has not been recorded promptly after the occurrence, then superstructure raised on the basis of said FIR in the form of case of prosecution is bound to fall; in this regard, guidance has been sought from the case of "MUHAMMAD RAFIQUE alias FEEQA versus The STATE" (2019 SCMR 1068), MUHAMMAD ADNAN and another versus The STATE and others" (2021 SCMR 16) and "GHULAM MUSTAFA versus The STATE" (2021 SCMR 542).
It is also well settled that when there is delay in reporting the incident to the police, then prosecution is under obligation to explain such delay and failure to do that will badly reflect upon the credibility of prosecution version and same is fatal for the case of prosecution. In this regard, guidance has been sought from the case of "Mst. Asia Bibi versus The STATE and others" (PLD 2019 Supreme Court 64); relevant portion from paragraph No.29 of said case law is hereby reproduced: - "There is no cavil to the proposition, however, it is to be noted that in absence of any plausible explanation, this Court has always considered the delay in lodging of FIR to be fatal and castes a suspicion on the prosecution story, extending the benefit of doubt to the accused. It has been held by this Court that a FIR is always treated as a cornerstone of the prosecution case to establish guilt against those involved in a crime; thus, it has a significant role to play. If there is any delay in lodging of a FIR and commencement of investigation, it gives rise to a doubt, which, of course, cannot be extended to anyone else except to the accused..." hence, First Information Report in this case has lost its legal efficacy and is of no help to the case of prosecution.
8. Ocular account in this case comprises of Abdul Rasheed (PW-2) and Niaz Ali (PW-3). So far as Abdul Rasheed (PW-2) is concerned, he is resident of Choongi Ammer Sidhu, Lahore, whereas occurrence took at Aazad Town, Lahore, therefore, he was 'chance witness' and in such circumstances, he was required to offer/explain valid reason/cause to establish his presence at the stated time, at the place of occurrence. Perusal of injury statement (Exh.PS) reveals that Fayyaz all alone went to Police Post and name of Abdul Rasheed (PW-2) was not mentioned in the same as accompanying him (i.e. Fayyaz). So much so, his name was not mentioned in the medico-legal examination certificate (Exh.PAA) as person accompanying the deceased when he was brought to the hospital for medicolegal examination. No material is available on record to establish presence of the complainant at the time and place of occurrence, hence, his testimony is "suspect" evidence and cannot be accepted without pinch of salt; guidance in this regard has been sought from the case of "Mst. SUGHRA BEGUM and another vs. QAISER PERVEZ and others" (2015 SCMR 1142) and relevant portion from paragraph No.14 of said case law is hereby reproduced: - "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."
Further guidance on the subject has been sought from the case of "MUHAMMAD ASHRAF alias ACCHU versus The STATE" (2019 SCMR 652), "Mst. MIR and another versus The STATE" (2020 SCMR 1850) and "SARFRAZ and another versus The STATE" (2023 SCMR 670).
Abdul Rasheed (PW-2) even otherwise introduced dishonest improvements in his statement before court and relevant portions are reproduced infra:- "It is not mentioned in Exh.PB that Imran accused was armed with Danda and Asad with brick when they came."
It is not mentioned in Exh.PB that Asad hit Fiaz with brick which hit on left side of head."
By now it is well settled that witnesses who introduce dishonest improvement or omission for strengthening the case, cannot be relied; in this regard, case of "MUHAMMAD ARIF versus The STATE" (2019 SCMR 631) and "KHALID MEHMOOD and another versus The STATE and others" (2021 SCMR 810) can be advantageously referred. Abdul Rasheed (PW-2) stated in his statement before court that accused Bilal hit Fayyaz with butt of pistol on left temporal region of Fayyaz whereas Asad hit Fayyaz with brick which hit on left side of head; in this regard relevant portion of his statement is reproduced as under:- "Accused Bilal hit Fiaz with Butt of his pistol on left temporal region of Fiaz."
"Asad hit Fiaz with brick which hit him on left side of head."
(emphasis added)
Similarly, Niaz Ali (PW-3) also stated that Bilal accused gave butt blow of pistol on left temporal region/Kanpatti of Fayyaz and Asad accused hit brick on left side of head of Fiaz; in this regard, relevant portion of his statement is reproduced as under:- "Bilal accused gave butt blow of pistol on left temporal region/Kanpati of Fiaz and Asad accused hit brick on left side of head of Fiaz."
However, doctor Haris Siddiqi (PW-12) who medically examined Fayyaz in injured condition, found following injuries on his body:- "Injury No.1: An abrasion measuring 1 x 1.5 cm on left side of face, 2.5 cm anterior to left ear with surrounding bruise.
Injury No.2: A lacerated wound measuring 2 x 0.2 cm on left temporal region of head, 3.5 cm above left ear, bone not exposed.
Injury No.3: Active bleed from left ear canal.
Injury No.4: Tender defuse swelling on posterior aspect of right shoulder."
(emphasis added)
The perusal of aforementioned injuries clearly reveals that injury attributed to Bilal at temporal region/Kanpatti was found at the time of medicolegal examination of Fayyaz on his body as injury No.2 whereas injury No.3 was active bleed from left ear canal, and doctor (PW-12) clearly stated during his statement before court that injury No.2 may lead to injury No.3 and relevant portion of his statement is reproduced:- "Injury No.2 may lead to injury No.3"
So, there was no injury on the head except injury on left temporal region/Kanpati (injury No.2) which was just 3.5 cm above left ear and it was attributed to Bilal co-accused of the appellant, so ocular account to the extent of present appellant (Asad Nazar) that he hit brick on the left side of head of Fayyaz could not be supported/confirmed by the medical evidence. It is also relevant to mention here that Doctor (PW-12) also stated that except injury No.3, the other injury may be caused due to falling on the ground and relevant portion in this regard is hereby reproduced:- "Except injury No.3, the other injuries may be caused due to falling on the ground."
As far as Niaz Ali (PW-3) is concerned, suffice it to say that he was not mentioned as eyewitness in the application for the registration of the case (Exh.PB) as well as FIR (Exh.PU) and his ocular version to the extent of appellant has not been supported/confirmed by medical evidence. It is not out of place to mention here that Abdul Rasheed (complainant/PW-2) made inconsistent statements on the one and same subject while recording his evidence on oath during trial, therefore, for the valid reasons, trial Court has excluded his testimony from consideration, and paragraph No.14 of the impugned judgment can safely be referred in this regard and the same is hereby reproduced for ready reference:- "14. The FIR was registered on the application Exh.PB, submitted by Abdul Rasheed (PW-2). As per FIR Exh.PU and application Exh.PB, Fiaz (deceased) has small grocery shop in the Baithak of his house where Bilal accused came and some altercation took place. After sometime, Bilal accused alongwith other seven persons including four accused persons present before the court came at the shop, started abusing Fiaz, forcefully entered in his house and beat him. Accused Bilal gave blow of pistol butt on Fiaz and they also dragged Fiaz in the street and accused Asad gave brick blow on the head of Fiaz who became unconscious and remaining accused persons kept torturing him. During investigation, the complainant submitted another application Exh.PC in which he gave specific role to the present five accused persons and there is no mention of remaining three persons. The complainant appeared as PW-2 and while recording examination in chief, he owned Exh.PB but during cross-examination, he disowned the same stating that he did not submit application Exh.PB and even he did not recognize his signature on Exh.PB. Keeping in view this glaring contradiction, this court is of the opinion that PW-2 has himself impeached his credibility and hence, his testimony is excluded from consideration."
(emphasis added)
While taking into consideration all the afore-mentioned reasons collectively, ocular account produced by the prosecution to the extent of Asad Nazar (appellant) has not been found as confidence inspiring or truthful; therefore, same cannot be relied and is hereby discarded.
9. Though medical evidence has not supported ocular account to the extent of present appellant yet it is trite law that medical evidence is mere supportive/confirmatory type of evidence; it can tell about locale, nature, magnitude of injury and kind of weapon used for causing injury but it cannot tell about identity of the assailant who caused the injury; therefore, same is also of no help to the prosecution in peculiar facts and circumstances of the case, in this regard, cases of "SAJJAN SOLANGI versus The STATE" (2019 SCMR 872) and "MUHAMMAD RAMZAN versus The State" (2025 SCMR 762) can be safely referred and relevant portion from latter case law is reproduced:- "It is by now well settled that medical evidence is a type of supporting evidence, which may confirm the prosecution version with regard to receipt of injury, nature of the injury, kind of weapon used in the occurrence but it would not identify the assailant."
10. So far as recovery of half-brick/brickbat at the pointing out of appellant is concerned, suffice it to say that as per own case of prosecution, occurrence took place on 07.04.2019 whereas said blood-stained half-brick was recovered on 12.06.2019 after more than two months of the occurrence and that, too, from vacant place. By now it is well settled that human blood disintegrates within three weeks, therefore, report of the Punjab Forensic Science Agency, Lahore (Exh.PBB) regarding availability of human blood on the said brickbat is of no avail to the prosecution and in this regard guidance has been sought from the case of "FAISAL MEHMOOD versus The State" (2016 SCMR 2138) and relevant portion from its paragraphs No.6 is hereby reproduced: - "The report of the Chemical Examination showing the recovered hatchet to be stained with blood is dated 20.12.2002 whereas the report of the Serologist showing the origin of the blood available on the recovered hatchet to be human blood is dated 25.05.2004. It was scientifically impossible to detect the origin of the blood after about two years of the occurrence because human blood disintegrates in a period of about three weeks."
(emphasis added)
Even otherwise, as per report of PFSA, Lahore (Exh.PBB, copy whereof is available at page Nos.62- 65). DNA profile obtained mentioned from item No.1 (soil) and sub-item No.4.1 {swab(s) taken from the brick} are partial and inconclusive, therefore, no comparison could be made with the DNA profile obtained from sub item No.2.1 (stain section taken from "qameez"). In this regard, relevant portions of said report are scanned and pasted below:- Therefore, said recovery of half brick is of no help to the case of prosecution.
11. As far as motive is concerned, as per own case of prosecution mentioned in application (Exh.PB) and FIR (Exh.PU), motive was attributed to Bilal co-accused and not to the present appellant. Even otherwise, when substantive evidence in the form of ocular account has not been found as confidence inspiring, then motive on the one hand cannot cure said defect of the case of prosecution whereas on the other hand, it loses its significance because as alone, it cannot be made basis for sustaining the conviction. It is also relevant to mention here that motive is neither substantive nor direct or corroborative piece of evidence rather only circumstance leading to the offence. In this regard case of "AKBAR ALI versus THE STATE" (2007 SCMR 486) can be referred.
Furthermore, it is trite law that motive is the double-edged weapon and can cut both sides and also could be equal reason for false implication of the accused and in this regard case of "MUHAMMAD ASHRAF alias ACCHU versus The STATE" (2019 SCMR 652) can safely be referred.
So, alleged motive is also of no help to prosecution against the appellant.
12. It is well established principle of law that single dent/circumstance in case of prosecution is sufficient for acquittal; in this regard, case of "ABDUL GHAFOOR versus The STATE" (2022 SCMR 1527) can be safely referred.
13. Nutshell of the above discussion is that prosecution has failed to prove its case against to the extent of appellant beyond shadow of doubt; therefore, there is no need to discuss defence version.
14. In view of what has been discussed above, Criminal Appeal No.78438/2022 to the extent of Asad Nazar (appellant No.4) is allowed; conviction recorded and sentence awarded to Asad Nazar (appellant) through impugned judgment dated: 29.11.2022 are hereby set-aside. He is acquitted of the charge and be released from jail forthwith, if not required in any other case.