Aalia Neelum, C.J:- Wakeel Zafar son of Muzaffar Ahmad, Caste Tatla, resident of Chak No.185/R.B, Abadi Budh Singh Wala, District Faisalabad and Waseem Hassan son of Nabeel Ahmad, Caste Tatla Jutt, resident of Chak No.186/R.B, Abadi Dogran Wala, District Faisalabad, the appellants No.2 and 3/convicts were involved in case F.I.R. No.276-2013, dated 05.05.2013, registered under Sections 302, 148, 149 PPC, at police station, Chak Jhumra, District Faisalabad and was tried by the learned Additional Sessions Judge, Faisalabad. The learned trial court seized the matter vide its judgment dated 03.11.2020 and convicted the appellants No.2 & 3-convicts under Section 302 (B) PPC, and each of them was sentenced to imprisonment for life. The appellants No.2 & 3/convicts were also directed to pay Rs.5,00,000/- each as compensation to the legal heirs of the deceased, and in case of default in payment of the fine amount, each of them would further undergo six months SI. The benefit of Section 382-B of Cr.P.C. was also extended in favor of the appellants No.2 & 3-convicts.
2. Feeling aggrieved by the judgment of the learned trial court, Wakeel Zafar and Waseem Hassan, appellants No.2 & 3, along with their co-accused, impugned the same by way of filing instant Criminal Appeal No.62458-J of 2020. It would not be out of context to mention here that the legal heirs of the deceased-Safdar Iqbal had entered into a compromise with the appellant No.1-Bilal Muzaffar alias Heera, as the legal heirs of the deceased-Safdar Iqbal had forgiven him (the appellant No.1-Bilal Muzaffar alias Heera) in the name of Almighty Allah and had no objection if the appellant No.1-Bilal Muzaffar alias Heera was acquitted of the charge against him. As a result, appellant No.1, Bilal Muzaffar alias Heera, was acquitted of the charge on 19.04.2022, in terms of a compromise effected between the parties. However, instant appeal was alive only to the extent of appellants No.2 & 3, Wakeel Zafar and Waseem Hassan.
3. The prosecution story as alleged in the F.I.R lodged on the application (Ex. P-QQ) of Zeeshan Iqbal (since murdered)-the complainant is that the appellants No.2 & 3, Wakeel Zafar and Waseem Hassan along with their co-accused persons, armed with their respective weapons were present at the Dera of Muzaffar Tatla. On 05.05.2013, at about 05:15 p.m. the complainant (since murdered) along with his uncle, Muhammad Riaz, Irfan was on a motorcycle whereas, father of the complainant, Safdar Iqbal (since dead), Ghulam Murtaza alias Gogi Cheema (since dead) and brother-in-law of Gogi Cheema, namely Ali Raza (since dead) were on a car bearing registration No. LEE-9772, driven by Gogi Cheema and the father of the complainant, was sitting in the front seat of the car while Ali Raza (since dead) was sitting in the rear seat. When they reached at Dera of Muzaffar Tatla, as soon as father of complainant, Safdar Iqbal (since dead) de-boarded from the car and sat on a cot, and Ghulam Murtaza alias Gogi Cheema and Ali Raza (since dead) were de-boarding from the car, then the accused persons-Wakeel Zafar and Waseem Hassan, appellants No.2 & 3, along with their co-accused persons while armed with their respective weapons murdered the father of the complainant namely Safdar Iqbal (deceased), Ghulam Murtaza alias Gogi Cheema (deceased) and Ali Raza (deceased) by making fire shots.
4. The motive behind the occurrence was that two days ago, a quarrel occurred between "Chachazad" of complainant Umer Nawaz and the accused persons. The same was patched up by the respectable of the locality, but the accused persons nourished the said grudge, resulting in the alleged occurrence.
5. After registration of the case, initially, the investigation of this case was conducted by Muhammad Hussain, Inspector (PW-17). Muhammad Sajid, S.I. (PW-13), arrested the accused persons, Wakeel Zafar and Waseem Hassan. After that, investigation of this case was entrusted to Abdul Sattar, Inspector, (PW-15) who, having found the appellants No.2 & 3 guilty, prepared a challan under section 173 Cr.P.C. and sent the same to the court of competent jurisdiction while placing the names of all accused persons in Column No.3 of the challan. On 12.10.2020, the trial court formally charge-sheeted appellant Nos. 2 & 3, to which they pleaded not guilty and claimed trial. In support of its version, the prosecution produced as many as nineteen (19) witnesses.
6. After the closure of prosecution evidence, appellant Nos. 2 & 3 were examined under Section 342 of Cr.P.C., wherein neither they opted to appear as their own witnesses in terms of Section 340 (2)
Cr.P.C. nor to produce any evidence in their defence. In response to a particular question that why this case was against them and why the PWs had deposed against them, the appellants No.2 & 3, Wakeel Zafar and Waseem Hassan made the following depositions: - "My answer of this question is the same as that of my co-accused Bilal Muzaffar alias Heera s/o Muzaffar Ahmad".
7. After recording evidence and evaluating the evidence available on record in light of the arguments advanced by both sides, the trial court found the prosecution version proved beyond any shadow of reasonable doubt, which resulted in the appellants' conviction in the afore-stated terms.
8. Arguments advanced by the learned counsel for the parties have been heard and available record has been perused.
9. In the instant case, the incident took place on 5/5/2013 at 5:15 p.m., in the area of Chak No. 185/R.B. Budh Singh Wala, within the limits of Police Station Chak Jhumra, Faisalabad and the same was reported at 06:15 p.m. by Zeeshan Iqbal (since murdered)-the complainant, son of Safdar Iqbal-the deceased, paternal son of Ghulam Murtaza alias Gogi Cheemadeceased through the written application (Ex. PQQ) to Muhammad Hussain Inspector (PW-17) at the place of occurrence, who recorded the police proceedings (Ex. PQQ/2) on it. Muhammad Hussain Inspector (PW-17) sent the same through Muhammad Nawaz 1053/C (not cited as a witness) to the police station Chak Jhumra, District Faisalabad, for formal registration of FIR, based on which first information report (Ex. PQQ/1) was recorded by Arshad Ali 119/HC (PW-14) at 06:30 p.m. with delay of one-hour (1) and fifteen (15) minutes. The inter-se distance between the place of occurrence and the police station is three (3) miles. Zeeshan Iqbal (since murdered)-the complainant was murdered during the trial.
On perusal of police proceedings (Ex. PQQ/2) at the bottom of the written application (Ex. PQQ), it reveals that Muhammad Hussain, Inspector (PW-17) reached the spot and incorporated proceedings at 06:15 p.m. on 05.05.2013. Muhammad Hussain, Inspector (PW-17)-investigating officer deposed during examination-in-chief that: - "--On 05.05.2013, I was posted as Incharge Investigation at P.S Chak Jhumra, Faisalabad. On the same day, after receiving the information regarding the occurrence at police station, I proceeded to the place of occurrence where the complainant of case presented before me written application Exh.P.QQ and I recorded my police proceedings Exh.P-QQ/2 on it and sent the same through Muhammad Nawaz 1053/C to the police station for registration of formal FIR. I inspected the dead body of Safdar Iqbal deceased and prepared injury statement Exh.P-KK and Inquest Report Exh.P-LL of the said deceased. I also inspected the dead body of Ali Raza deceased and prepared Injury Statement Exh.P-NN and Inquest Report Exh.P-PP of the said deceased. I escorted the dead body of Safdar Iqbal deceased through Irfan Asghar 33757/C, dead body of Ghulam Murtaza through Ghulam Mustafa 6859/C and dead body of Ali Raza through Adil Usman 7161/C to the mortuary of THQ Hospital, Chak Jhumrah, District Faisalabad-- -"
No family members of Safdar Iqbal, Ghulam Murtaza alias Gogi Cheema, and Ali Raza, the deceased persons, reported the incident to the police soon after the incident. One hour after the incident, police reached the place of the occurrence and Zeeshan Iqbal (since murdered)-the complainant handed over a written application (Ex. PQQ) to Muhammad Hussain Inspector (PW-17) at 6:15 p.m. On perusal of police "Proceeding" endorsed on application/complaint (Exh. PQQ), it revealed that the occurrence was reported at 06:15 p.m. on 05.05.2013. The postmortem examination of the dead bodies was conducted by Dr. Saad Maroof Saeed (PW-12) on 06.05.2013 at 08:00 a.m. of Ghulam Murtaza, at 09:00 a.m. of Safdar Iqbal, and 10:15 a.m. of Ali Raza, respectively with delay of fifteen (15) hours, sixteen (16) hours, and seventeen (17) hours respectfully, then delay in conducting the postmortem examinations was not explained by the prosecution. The fact, however, remains that the post-mortem examination was delayed for fifteen (15) hours, sixteen
(16) hours, and seventeen (17) hours, respectively. Dr. Saad Maroof Saeed (PW-12) deposed during examination-in-chief that he received police papers along with the dead body of Ghulam Murtaza at 07:40, at 8:15 a.m. with the dead body of Safdar Iqbal, and at 8:35 a.m. with the dead body of Ali Raza. Dr. Saad Maroof Saeed (PW-12) deposed during the cross-examination that: - "---I received the police papers on next day i.e. on 06.05.2013, at 07:40 A.M. I received police papers of three deceased persons at different times that is why the time of receiving of police papers was different---"
If, after endorsing police "proceedings" on the application/complaint (Ex. PQQ) at 06:15 p.m. on 05.05.2013, the dead bodies were shifted to THQ Hospital, Chak Jhumra, District Faisalabad, then the delay in conducting the postmortem examination was not explained by the prosecution. On perusal of inquest reports (Ex. PHH, PLL, and PPP) prepared by Muhammad Hussain, Inspector (PW- 17)-investigating officer, reveals that a copy of FIR was not sent with the dead bodies. Dr. Saad Maroof Saeed (PW-12) deposed during the cross-examination that: - "----Exh.P-FF is the correct carbon copy of post-mortem report of Ghulam Murtaza deceased and Exh.P-FF/1 and Exh.P-FF/2 are the pictorial diagrams showing the seat of injuries, which are in my hand writing and bears my signatures and stamp. I also endorsed injury statement Exh.P- GG and inquest report Exh.P.HH Exh.P-JJ is the correct carbon copy of post-mortem report and Exh.P-JJ/1 and Exh.P-JJ/2 are the pictorial diagrams showing the seat of injuries which are in my hand writing and bears my signatures and stamp. I also endorsed injury statement Exh.P-KK and inquest report Exh.P-LL----Exh.P-MM is the correct carbon copy of post-mortem report and Exh.P-MM/1 and Exh.P-MM/2 are the pictorial diagrams showing the seat of injuries which are in my hand writing and bears my signatures and stamp. I also endorsed injury statement Exh.P- NN and inquest report Exh.P-PP--"
This also gets support from the contents of the inquest reports (Ex. PHH, PLL, and PPP) wherein it was mentioned as below: - In Ex. PPP, it was mentioned as below:- In Ex. PPP, it was mentioned as below:- The above deposition of Muhammad Hussain, Inspector (PW-17)- investigating officer, Dr. Saad Maroof Saeed (PW-12) as well as contents of the inquest reports (Ex. PHH, PLL, and PPP) create serious doubt on the question towards the time of reporting the incident to the police and recording of the FIR. Considering all these facts, this court has no hesitation in concluding that the prosecution has not been able to prove on record that the FIR was recorded at the time it was claimed to have been recorded. The Hon'ble Supreme Court of Pakistan in the case of "Irshad Ahmed v. The State" (2011 SCMR 1193) held that: - "We have further observed that the post-mortem examination of the dead body of Shehzad Ahmed deceased had been conducted with a noticeable delay and such delay is generally suggestive of a real possibility that time had been consumed by the police in procuring and planting eye-witnesses and in cooking up a story for the prosecution before preparing police papers necessary for getting a post-mortem examination of the dead body conducted."
10. A delay in lodging the first information report often results in consultation and deliberation, which is a creature of afterthought. The prosecution failed to explain the delay in reporting the incident as well as the delay in conducting a post-mortem examination on the dead bodies of Safdar Iqbal, Ghulam Murtaza alias Gogi Cheema, and Ali Raza, the deceased persons. Hence, these circumstances raised considerable doubt regarding the veracity of the case, and it was held that it was not safe to base a conviction on it. The unexplained delay in reporting the incident in lodging the first information report and the delay in conducting postmortem examination on the dead bodies of the deceased persons prove fatal to the case of the prosecution.
11. The prosecution produced two witnesses, Muhammad Riaz (PW-5) and Muhammad Irfan (PW- 16), to prove the ocular account. Muhammad Irfan (PW-16) was declared hostile. Muhammad Riaz (PW-5), eye-witness and brother of Safdar, deposed during examination-in-chief that:- "---When Gogi Cheema was de-boarding from the driving seat of car, meanwhile, accused Wakeel made fire-shot and he fell down alongside the driving seat. Accused Waseem made fire- shot which inflicted on the flank---Ali Raza tried to flee from the spot after de-boarding from the car, meanwhile, accused persons made fire shots. Accused persons made continuous firing which created terror and harass in the vicinity. Safdar, Gogi and Ali Raza were severely injured and succumbed to the injuries at the spot---"
Zeeshan Iqbal (since murdered)-the complainant attributed a specific role in the written application (Ex. PQQ) and first information report (Ex. PQQ/1) to the appellant No. 2, Wakeel Zafer, who made a fire shot with his 222-bore rifle, which landed on the front of the abdomen of Ghulam Murtaza alias Gogi Cheema-deceased. Whereas in the postmortem examination report (Ex. PFF) of Ghulam Murtaza alias Gogi Cheema-deceased, there is no firearm injury on the front of his abdomen. As per prosecution version given by Zeeshan Iqbal (since murdered)-the complainant in the written application (Ex. PQQ) and first information report (Ex. PQQ/1), the appellant No. 3, Waseem Hassan, while armed with a 244-bore rifle, made a fire shot, which landed on the left side of the chest below nipple of Ali Raza, the deceased. Muhammad Riaz (PW-5) had not attributed any injury to the appellant No. 3, Waseem Hassan, towards Ali Raza, deceased. According to the FIR (Ex. PQQ/1), Ijaz alias Judge (since acquitted) fired, which hit Ghulam Murtaza alias Gogi Cheema on the left side of the chest, and Ijaz alias Judge (since acquitted) fired again, which hit Ghulam Murtaza alias Gogi Cheema on the front side of the chest. The third shot was fired by appellant No. 2, Wakeel Zafar, which hit Ghulam Murtaza alias Gogi Cheema on the front side of the abdomen.
Ghulam Murtaza alias Gogi Cheema fell next to the driver's door. Meanwhile, Ali Raza opened the car door to save his life and ran away, so Adeel Muzaffar (since acquitted) fired, which hit him on the left side of the chest. At the same time, Nadeem Nabeel (since acquitted) fired, which hit Ali Raza on the left side of the armpit. Appellant No. 3, Wasim, fired, which hit Ali Raza on the left side of the chest, below the nipple. Anil Muzaffar (since acquitted), Jalal Muzaffar (since acquitted), and Shahbaz (since acquitted) fired together with their respective firearms, which hit Ali Raza on the abdomen, on the left side of the thigh, and the left elbow. Nabeel Muzaffar (since acquitted) fired again, which hit Ali Raza on the right leg. Muhammad Riaz, PW-5, deposed in his examination-in- chief that the appellant No. 2, Wakeel Zafer, fired a shot at Gogi Cheema. At the same time, he deboarded from the vehicle and fell against the driver's seat with the door of the vehicle while the accused, Wasim Hassan, fired a shot, which hit him in the flank. Besides this, Muhammad Riaz (PW- 5) gave no specific role to either of the appellants. The specific roles were given to the co-accused, who were acquitted by the court or with whom the legal heirs of the deceased compromised.
Muhammad Riaz (PW-5) deposed during cross-examination that"- "---I earlier got recorded my examination-in-chief in the instant case on 06.02.2020 and due to de-novo proceedings, I again got recorded my examination-in-chief on 24.10.2020. It is true that in my examination-in-chief dated 06.02.2020 and my examination-in-chief dated 24.10.2020, there is some improvement regarding role of accused persons---"
No injury was attributed by Muhammad Riaz (PW-5) to the appellant No. 3, Waseem Hassan, towards Ali Raza; instead, the injuries were attributed to his co-accused Adeel Muzaffar (since acquitted) and Nadeem Nabeel (since acquitted). Muhammad Riaz (PW-5), eye-witness and brother of Safdar, admitted during cross-examination that: - "---I earlier got recorded my examination-in-chief in the instant case on 06.02.2020 and due to de-novo proceedings, I again got recorded my examination-in-chief on 24.10.2020. It is true that in my examination-in-chief dated 06.02.2020 and my examination-in-chief dated 24.10.2020, there is some improvement regarding role of accused persons---"
Muhammad Irfan (PW-16), eyewitness, deposed during examination-in-chief that: - "---Stated that I did not see the occurrence and I was not eye-witness of the occurrence. I know nothing about the occurrence. (At this stage, learned Public Prosecutor for the State requested that witness turned hostile, so, he be declared hostile and sought permission to cross-examine the witness---"
After Muhammad Irfan's (PW-16) examination-in-chief, the ADPP requested permission to cross- examine the witness, treating him as hostile. The learned Judge recorded, "In the interest of justice, permission is hereby granted." After going through the statement made by the witness in cross- examination by the learned ADPP, it is found that he had denied all questions and suggestions put to this witness during cross-examination, and the prosecution had cross-examined this witness in detail. This is the evidence available on record. Muhammad Riaz (PW-5), and Muhammad Irfan (PW-16), after completion of examination-in-chief had been cross-examined and at that stage, no doubt, specific reasons were recorded while the learned judge was permitting to declare Muhammad Irfan (PW-16) hostile so far as PW-16 is concerned, however Muhammad Riaz (PW-5) was not declared as hostile. Chapter X of the Qanun-e-Shahadat Order, 1984, deals with the examination of witnesses. Article 132 of the said Order reads examination-in-chief, cross- examination, and re-examination. Article 133, dealing with the order of examinations, reads as hereunder: "133. Order of examinations: 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.
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.
Direction of re-examination: - The re-examination shall be directed to the explanation of matters referred to in cross-examination; and, if new matter is, by permission of the Court, introduced in re- examination, the adverse party may further cross-examine that matter."
Articles 140 and 141 of the said Order read as hereunder: "140. Cross-examination as to previous statements in writing:- a witness may be cross-examined as to previous statements made by him in writing or reduced into writing and relevant to matters in question, without such writing being shown to him or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.
141. Questions lawful in cross-examination: - When a witness is cross-examined, he may in addition to the questions hereinbefore referred to, be asked any questions which tend
(1) to test his veracity, (2) to discover who he is and what is his position in life, or (3) to shake his credit, by injuring his character, although the answer to such questions might tend directly or indirectly to criminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture."
Article 150 of the Qanun-e-Shahadat Order, 1984, deals with questions by the party to his witness, and this provision reads as hereunder.
"150. Question by party to his own witness: - The Court may, in its discretions, permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party."
This provision assumes some importance in the present contest. Article 151 of the said Order dealing with impeaching credit of witness reads as hereunder: "151. Impeaching credit of witness: The credit of a witness may be impeached in the following ways by the adverse party, or with the consent of the Court, by the party who calls him: --
(1) by the evidence of persons who testify that they, from their knowledge of the witness, believe him to be unworthy of credit;
(2) by proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence;
(3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;
(4) when a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character."
A court can permit a party calling a witness to put questions under Article 150 of the Qanun-e- Shahadat Order, 1984, only in the examination-in-chief of the witness. Article 150 does not, in terms or by necessary implication, confine the exercise of the power by the court before the examination- in-chief is concluded or to any stage of the examination of the witness. A clever witness in his examination-in-chief deposes what he stated earlier to the police or in the committing court, but in the cross-examination introduces statements subtly, contradicting in effect what he stated in the examination-in-chief. If his design is evident during his cross-examination, the court, therefore, can permit a person, who calls a witness, to put questions to him which might be put in the cross- examination at any stage of the examination of the witness, provided it takes care to allow the accused to cross-examine him on the answers elicited which do not find place in the examination- in-chief. In the present case, Muhammad Raiz (PW-5) suppressed the facts, and the court, at the request of the ADPP, did not declare him hostile. To ascertain the witness's intention or conduct, the Judge concerned may look into the statements made by the witness before the Investigating Officer or the previous statements to find out whether or not there is any indication of the witness making a statement inconsistent on a most material point with the one, he gave before the investigating officer or court. In the present case, Muhammad Raiz (PW-5) suppressed facts, and Muhammad Irfan (PW-16) was declared hostile. Despite the same, the learned judge recorded findings holding the accused guilty of the offences charged. This approach adopted by the learned Judge does not conform with the settled principles of burden of proof in Criminal Jurisprudence.
Hence, this Court has no hesitation in holding that the findings recorded by the learned Judge suffer from the legal infirmity and are liable to be set aside.
12. The learned counsel for the complainant had emphasized that after the occurrence, the appellants No.2 & 3 were declared proclaimed offenders, connecting them with the crime. It is an admitted fact that Zeeshan Iqbal (since murdered)-the complainant had involved the entire family by widening the net. Muhammad Hussain, Inspector (PW-17)-investigating officer admitted during examination-in-chief that: - "----It is correct that Muzaffar Ahmad (since dead), real father of accused persons, namely Nabeel Ahmad (since murdered), Aneel Zafar (since murdered), Adeel Ahmad, Jalal Zafar, Bilal Zafar, Wakeel Zafar and Jameel Ahmad and paternal-grandfather of accused persons Waseem Hassan and Nadeem Hassan and maternal grandfather of accused Ijaz alias Jajj and Shahbaz, got registered case FIR against Khalid alias Khala, Imtiaz alias Taji, Umer alias Umari, Ehtisham, Zeeshan (complainant of this case and since murdered), Nauman, Riaz Ahmad (PW of this case), Sarfraz, Aasher, Adnan, Aamer, Irfan and Muhammad Ikram-"
In the instant case, medical evidence conflicts with the ocular account, and only one thing goes against the appellants No.2 & 3 i.e. their abscondence for the considerable period. In such cases, the accused also abscond with fear of arrest as well as due to torture by the police. However, even if established, the factum of abscondence could only be used as corroborative evidence and was not substantive. It is an established principle of law that mere absconsion is not proof of guilt of the accused. Reliance is placed on "Rasool Muhammad v. Asal Muhammad and another" (PLJ 1995 SC 477). From the above, it can be ascertained that the prosecution failed to bring home the appellants' guilt through straightforward, confident, and corroborative evidence.
13. Admittedly, co-accused namely (1) Ijaz alias Jajj son of Mumtaz Ahmad, (2) Adeel Ahmad son of Muzaffar Ahmad, (3) Jameel Ahmad son of Muzaffar Ahmad, (4) Jalal Zafar son of Muzaffar Ahmad, (5) Shahbaz Hussain son of Mumtaz Hussain and (6) Nadeem Hassan son of Nabeel Ahmad, have been acquitted by the learned trial court on the same set of evidence. There is no challenge to the judgment of acquittal. A major part of the evidence of the prosecution was disbelieved qua the above-named accused persons. The prosecution version cannot be believed qua the other accused persons without strong corroboration.
14. In the light of above discussion, I am of the affirmed view that prosecution has failed to prove its case against the appellants No.2 & 3 beyond any shadow of doubt, therefore, I accept the instant Criminal Appeal No.62458-J of 2020 filed by Wakeel Zafar and Waseem Hassan-appellants, No.2 & 3 to their extent, as a result whereof conviction and sentence recorded by the learned trial court vide judgment dated 03.11.2020 is set aside and the appellants-Wakeel Zafar and Waseem Hassan are ordered to be acquitted of the charge in case bearing FIR No.276-2013, dated 05.05.2013, under sections 302, 148, 149 PPC, registered at police station, Chak Jhumra, District Faisalabad. The appellants- Wakeel Zafar son of Muzaffar Ahmad and Waseem Hassan son of Nabeel Ahmad are directed to be released forthwith if not required in any criminal case.