SARDAR AKBAR ALI, J:- Haq Nawaz (convict/appellant) along with his co-accused Zameer-ul- Hassan and Muzaffar Ali was tried by learned Additional Sessions Judge, Tandlianwala, District Faisalabad in case FIR No.275/2014, dated 06.05.2014 for offences under sections 302/34 PPC registered at Police Station City Tandlianwala and vide judgment dated 19.11.2021 while acquitting Muzaffar Ali and Zameer-ul-Hassan accused proceeded to convict and sentence Haq Nawaz (accused/appellant) in the following terms:- "Under Section 302 (b) PPC to suffer death sentence. He was also directed to pay compensation of Rs.1,00,000/- under Section 544-A Cr.P.C. to the legal heirs of Azhar (deceased) and in default whereof to suffer 06-months simple imprisonment."
Aggrieved by his conviction and sentence, Haq Nawaz (appellant) filed Criminal Appeal No.76281 of 2021. Likewise, trial Court sent reference under Section 374 Cr.P.C. which was numbered as Murder Reference No.220 of 2021 for the confirmation or otherwise of death sentence awarded to Haq Nawaz appellant whereas complainant Mamoor filed Crl. Appeal No.77615 of 2021 challenging the acquittal of co-accused Zameer-ul-Hassan and Muzaffar Ali. Since all these matters have arisen out of the same judgment, therefore, are being decided together through this single judgment.
2. Precisely, the prosecution case as disclosed by Mamoor/ complainant (PW-1) in the complaint (Ex.PA) is that on 06.05.2014 at about 11:00 AM, his son Azhar (deceased) was going to check harvesting of his wheat crop at square No.32. All of a sudden, Muzaffar (since acquitted) raised Lalkara to teach a lesson by killing Azhar (deceased) for exchanging of hot words. Upon this, complainant (PW-1) along with Mazhar (PW-02) and nephew Umar Draz (given up PW) who were cutting wheat crop nearby reached at the place of occurrence and within their view Muzaffar (since acquitted) grabbed Azhar, son of complainant (PW-1) who managed to rescue himself then Zameer-ul-Hassan (acquitted co-accused) inflicted Sota blow which landed on the forehead upper the left eye of Azhar. Haq Nawaz appellant made a straight fire shot with pistol .30-bore which hit on the front side of head upper the right eye of Azhar and went through and through, who fell down. Complainant took care of his son Azhar but he succumbed to the injuries at the spot.
3. The motive for the occurrence was monitory dispute between Azhar (deceased) son of the complainant and accused Zameer-ul-Hassan and hot words were exchanged between them prior to this occurrence. Due to this grudge, the above said co-accused persons after pre-consultation and premediation with each other had committed the murder of Azhar, the son of complainant.
4. As Ghazanfar Ali, Sub-Inspector who initially conducted investigation in this case, according to the prosecution had died, therefore, prosecution got recorded the statement of Muhammad Tahir 4582/C (PW-12) as secondary evidence. He stated that he worked with Ghazanfar Ali SI at P/S City Tandlianwala and was fully acquainted with the handwriting and signature of Ghazanfar Ali SI. He stated that as per record, the investigation of this case was entrusted to Ghazanfar Ali SI on 06.05.2014 who visited the place of occurrence, inspected the same and prepared the rough site plan Ex.PH which was in his handwriting and bore his signature. He stated that the deceased I.O took into possession last worn clothes i.e. Qameez P-1, Shalwar P-2, Buniyan P-3 and Chadar P-4 vide recovery memo Ex.PF and on the same day, he prepared injury statement Ex.PE/2, inquest report Ex.PE/3 which was also in his handwriting. On 06.05.2014, Ghazanfar Ali deceased I.O also secured the blood stained earth from the place of occurrence and took the same into possession vide recovery memo Ex.PB which was attested by PWs Mazhar and Umar Draz.
The investigation in this case was also conducted by Shahid Anwar, SI who while appearing as (PW-11) stated that on 20.10.2017, he arrested appellant Haq Nawaz and co-accused Zameer-ul- Hassan. On 28.10.2017, co-accused Zameer-ul-Hassan on his disclosure got recovered "sota" from his residential house situated in Chak No.429/G-B and took the same into possession vide recovery memo Ex.PB. On 29.10.2017, appellant Haq Nawaz on his disclosure and pointing out got recovered pistol .30 bore P-1 from an iron box lying inside the room of his residential house at Chak No.429/G- B and took the same into possession vide recovery memo Ex.PC. He handed over above sealed parcel to Moharrir for keeping at Malkhana for safe custody. On 30.10.2017, the accused persons were sent to Judicial lock and thereafter he produced file of this case before SHO for preparation of report u/s 173 Cr.P.C.
5. The prosecution in order to prove its case against the appellant produced twelve witnesses, out of whom Mamoor/ complainant (PW.1) and Mazhar eyewitness (PW.2) provided eyewitness testimony, while Dr. Abdul Rehman Zeeshan (PW.5) furnished the medical evidence and Shahid Anwar, SI (PW.11) conducted the investigation of the case. The other PWs predominately were formal in nature. Learned prosecutor given up PW, namely, Umar Daraz (eye witness) being unnecessary.
6. On 06.05.2014 at about 04:00 p.m. Dr. Abdul Rehman Zeeshan (PW.5) performed the autopsy on Azhar Iqbal deceased and noted the following injuries:- Injury No.1-A: A firearm wound of entry 01 cm x 01 cm in size on right side of forehead, burning is present.
Injury No.1-B: A firearm wound of exit 1.5 cm x 1.5 cm in size on back and left side of head.
Injury No.2: Swelling on upper right eyelid.
Injury No.3: Swelling over upper left eyelid.
According to the opinion of the doctor, the cause of death was injury No.1 which was sufficient to cause death. He further indicated that the duration between injuries and death was 5 to 20 minutes and between death to postmortem was 12 hours.
7. On closure of prosecution case, the appellant when examined under section 342 Cr.P.C. denied the prosecution evidence. The appellant, however, neither opted to produce evidence in his defence nor to appear as his own witness as required under section 340(2) Cr.P.C.
8. Arguments heard and record perused.
9. The complainant (PW-01) on 06.05.2014 presented written application (Exh.PA) before Ghazanfar Ali SI (since died) on the basis of which subsequently FIR (Exh.PA/2) was registered. The said written application in the computerized form, was drafted by a computer operator but the prosecution has not produced the said computer operator to establish that as to who had dictated him the contents of said application. Facts and circumstacnes lead us to a conclusion that the FIR was not registered promptly rater the matter was reported belatedly to the police, therefore, the false involvement of the appellant cannot be ruled out. Reference is made to the cases reported as "Abid Hussain and another vs. The State and others" (2024 SCMR 1609).
10. The entire case of the prosecution relies on the ocular account furnished by Mamoor/complainant, (PW.1) and Mazhar (PW.2). We have examined the ocular account.
Mamoor/complainant, (PW.1) and Mazhar (PW.2) are father and son inter-se. As per prosecution's own case, the occurrence took place in Square No.26 Killa No.25 where the accused were sitting in an ambush and they assaulted upon the deceased whereas as per scaled site plan Exh.PH, Haq Nawaz, appellant while standing on a Tandoori i.e. Point-3 situated inside his house made a fire shot at the deceased, who was present at Point-1 which is not a thoroughfare, this negates the stance of the prosecution story that the appellant made fire shot at an open place. The occurrence took place in front of the house of the accused party. Furthermore, at the time of occurrence, Mamoor /complainant, (PW.1) and Mazhar (PW.2) were not accompanying the deceased rather they attracted at the place of occurrence on hearing the noise of Lalkara made by Muzaffar (co- accused since acquitted). It is settled law that arrival of the PWs at venue exactly at a point of time in itself is a circumstance that reflects on the very genesis of the prosecution case. Reliance may be placed on the cases reported as "State through Advocate-General, Khyber Pakhtunkhwa, Peshawar vs. Hassan Jalil and others" (2019 SCMR 1154) and "Muhammad Imran vs. The State"
(2020 SCMR 857). We have further noted that the presence of both these PWs on the spot at the place and at the time of incident is doubtful in nature because they did not receive even a scratch during the incident. They did not make an abortive attempt to save Azhar (deceased) from the clutches of appellant and his co-accused. Moreover, both the above said PWs have utterly failed to bring anything on the record establishing their claimed presence with the deceased at the relevant time at the place of occurrence i.e. Square No.26 Killa No.25. Mamoor/complainant, (PW.1) admitted in his cross-examination that: "It is correct that I am not owner in square No.26. Voluntarily stated we were tenant there. It is incorrect that my volunteer portion of statement is incorrect. I have not produced any tenancy of lease agreement regarding square No.26 to the police."
The PWs failed to prove that they had agricultural land or tenancy thereof near to the place of incident. They have also failed to produce the ownership of the land where the occurrence allegedly took place. Therefore, we hold that both eye-witnesses namely Mamoor / complainant, (PW.1) and Mazhar (PW.2) were chance witnesses as their presence at the place of occurrence is not established from the record. Admittedly, 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. The testimony of chance witness may be relied upon, provided some convincing explanations appealing to a 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. Reliance may be placed on the cases reported as "Mst Shazia Parveen vs. The State" (2014 SCMR 1197), "Muhammad Rafique vs. The State" (2014 SCMR 1698), "Naveed Asghar and 2 others vs. The State" (PLD 2021 SC 600) and "Abdul Khaliq vs. The State" (2021 SCMR 325).
11. The disturbing part of the ocular account is that on the basis of the same statements made by the eye-witnesses, Zameer-ul-Hassan (co-accused since acquitted) who was charged for inflicting sota blow at the deceased and accused Muzaffar Ali (co-accused) who raised lalkara, have been acquitted by the learned trial Court. It is settled by now that the witnesses disbelieved to the extent of co-accused cannot be believed against the appellant and the conviction and sentence of appellant are not sustainable on the same set of evidence. A reference in this respect may be made to the case of "Pervaiz Khan and another vs. The State" (2022 SCMR 393) and "Muhammad Iqbal vs. The State and another" (2024 SCMR 1133).
12. Another intriguing aspect of the case is that according to the contents of FIR the most natural witness of the occurrence was Umar Draz in whose presence the occurrence took place but he was not produced by the prosecution during the trial. Therefore, the prosecution withheld best available evidence and in view of Article 129(g) of Qanoon-e-Shahadat Order, 1984, adverse inference, that had this witness been produced before the learned trial court he would not have supported the prosecution case, can safely be drawn against the prosecution. Reliance is placed on case law titled as "Lal Khan vs The State" (2006 SCMR 1846) and "Muhammad Rafique and others vs. The State and others" (2010 SCMR 385).
13. We have also observed that there is a direct conflict between the ocular account and the medical evidence. It is noticed that Zamir-ul-Hassan (since acquitted) was attributed role of causing sota blow on front side of the head upper the left eye of Azhar (deceased) but the doctor observed four injuries on the person of the deceased out of which injuries No.1-A & 1-B were caused by firearm weapon whereas injuries No.2 & 3 were swelling on upper right eyelid and upper left eyelid. Dr. Abdul Rehman Zeeshan, (PW-5) during cross-examination observed that: "....I have not mentioned any blunt weapon in the post mortem report......There is no mark of blunt weapon on the forehead except the firearm injury."
Dr. Abdul Rehman Zeeshan, (PW-5) during postmortem examination on the dead body of Azhar (deceased) also observed about injury No.1 that: "A firearm wound of entry 01 cm x 01 cm in size on right side of forehead, burning is present."
According to the Modi's Book of Medical Jurisprudence and Toxicology 27th Edition, in case of pistol fire shot burning can occur if the fire shot is made from a distance of within 02 feet.
Relevant extract from the Book of Modi's Medical Jurisprudence and Toxicology 27th Edition reproduced as under:- "...25.7.1.1 Distance of the Firearm If a firearm is discharged very close to the body or in actual contact, subcutaneous tissues over an area of two or three inches around the wound of entrance are lacerated and the surrounding skin is usually scorched and blackened by smoke and tattooed with unburnt/partially burnt grains of gunpowder or smokeless propellant powder. The adjacent hairs are singed, and the clothes covering the part are burnt by the flame. If the powder is smokeless, there may be a greyish or white around the wound. If the area is photographed by infrared light, a smoke halo round the wound may be clearly noticed. Blackening is found, if a firearm like a shotgun is discharged from a distance of not more than three feet and a revolver or pistol discharged within about two feet."
Reliance is also placed upon the case law titled as "Riasat Ali and another vs. The State and another" (2024 SCMR 1224), wherein it has been held as under:- "14. The postmortem report of deceased Asadullah Khan mentions about blackened and burnt area of his entrance wound near lower end of his scapula. The distance from which the deceased Asadullah Khan was fired upon was 5.5 feet. According to Modi's Medical Jurisprudence and Toxicology blackening is found, if a firearm like shotgun is discharged from a distance of not more than three feet and a revolver or pistol is discharged within about two feet."
According to site plan (Ex.PG) the deceased was present at Point-1 whereas the appellant made fire shot while standing on Tandoori at Point-3, which is situated inside the house of the accused party. The distance between Point-1 and Point-3 is about 16 feet wheres as per postmortem report (Exh.PE) burning is present, therefore, ocular account furnished by the two eyewitnesses is not consonance with the medical evidence which clearly contradicted the statements of the eyewitnesses. The contradiction in the ocular account of the occurrence as narrated by the prosecution witnesses and the medical evidence furnished by the doctor clearly establish that the prosecution has miserably failed to prove the charge against the appellant. Guidance is sought from Muhammad Idrees v. The State (2021 SCMR 612) and Muhammad Hanif v. The State (2023 SCMR 2016).
14. Although the prosecution has set up a specific motive that an altercation took place between the deceased and co-accused Zamir-ul-Hassan sometimes earlier but no evidence in this behalf has been produced by the prosecution to substantiate the motive alleged by the prosecution.
Furthermore, co-accused Zamir-ul-Hassan, to whom direct motive is alleged, has been acquitted by the learned trial Court by disbelieving the ocular account. No direct motive is attributed against the appellant. Thus, we are of the view that, in the absence of any other corroborating evidence, it does not appear to be a sound and reasonable motive as stated by the prosecution for the commission of the offense. It is cardinal principle of criminal justice that the prosecution has to suffer if set up a motive but fails to prove the same. Reliance is placed on Tajamal Hussain Shah v.
The State and another (2022 SCMR 1567) and "Chanzeb Akhtar and another vs. The State and others" (2024 SCMR 1413).
15. After the arrest of accused/appellant on 29.10.2017 the crime weapon was shown recovered on his lead, but the PFSA report (Ex.PK) is only about mechanical operating condition of the weapon, with no matching with the crime empties as no empties were secured by the I.O. from the place of occurrence, thus, the recovery in this case becomes totally inconsequential. Besides, when we have already disbelieved the ocular account, such recovery would not be sufficient for recording conviction of an accused on capital charge, because this type of corroborative evidence is always taken into consideration along with direct evidence. In case titled "Noor Muhammad Versus The State" (2010 SCMR 97) it has been held by the Supreme Court of Pakistan that recovery of crime weapon even with matching report of PFSA is only corroborative piece of evidence, which by itself is not sufficient to record conviction.
16. To sum up the above findings, it is noted that the eyewitness are chance witnesses and they have also made dishonest improvements in their testimonies; the medical evidence is in conflict with the ocular account; recovery is ineffective and is of no consequence; the motive behind the occurrence is far from being proved and almost non-existent, and the lack of any cogent and reliable evidence adduced by the prosecution in support of the reason advanced for their presence by the complainant and lastly acquittal of co-accused Zameer-ul-Hassan and Muzaffar Ali (co-accused since acquitted) on the same set of evidence, are all strong circumstances which create a serious dent in the prosecution's case qua the presence of the eyewitnesses at the time and place of occurrence. Thus, when the very presence of the eyewitnesses is doubtful, then the veracity of their testimony would surely fall short of credence to saddle capital punishment upon the present appellant. Reliance is placed on Muhammad Rafique alias Feeqa v. The State (2019 SCMR 1068).
17. For what has been discussed above, we have no doubt to hold that here in this case the prosecution has miserably failed to establish the charge against the accused/appellant beyond any shadow of doubt. In the cases of "KHIAL MUHAMMAD Versus The STATE" (2024 SCMR 1490) & "MUHAMMAD IJAZ alias BILLA and another Versus The STATE and others" (2024 SCMR 1507), the Supreme Court of Pakistan has held that for giving benefit of doubt to an accused a single circumstance creating reasonable doubt in a prudent mind about guilt of accused is sufficient to make him entitled to such benefit, whereas, in present case numerous doubts have crept into the evidence making whole edifice of prosecution unreliable. Thus, the prosecution has squarely failed to bring home the guilt against the accused/appellants.
18. Consequently, Crl. Appeal No. 76281 of 2021 is allowed, impugned judgment of conviction & sentence is set-aside and the accused/ appellant is acquitted of the charges against him. He shall be released forthwith if not required to be detained in any other case. The case property, if any, be disposed of in accordance with law, and record of the learned trial Court be sent back immediately.
19. Murder Reference No.220 of 2021 is answered in the NEGATIVE and the sentence of death awarded to Haq Nawaz (appellant) is NOT CONFIRMED.
20. In view of above discussion, Crl. Appeal No.77615 of 2021 filed by the complainant against the acquittal of co-accused Zameer-ul-Hassan and Muzaffar Ali, having no merits is dismissed.