AURANGZEB, J.- This single judgment is directed to decide the instant Criminal Appeal No.89- A/2018 titled "Mst.Safeen Akhtar vs. Ehtesham and others" as well as the connected Criminal Appeal No.40-A/2023 titled "Mst.Safeen Akhtar vs. Muhammad Nazakat alias Sain" as both of them are outcome of the one and same case registered vide FIR No.355 dated 30.08.2013 under sections 302/324/34 PPC at Police Station Hattar Haripur. The appellant/complainant, through the former appeal, has challenged the order/judgment dated 11.04.2018 of the learned Sessions Judge, Haripur whereby respondents/accused Ehtesham, Rafaqat, Aamir, Malik Mamrez have been acquitted, while through the latter appeal, she has challenged the order/judgment dated 30.01.2023 of learned Additional Sessions Judge-II, Haripur whereby the respondent/accused Muhammad Nazakat alias Saen has been acquitted.
2. Precisely, the facts of the present case as alleged by the appellant/complainant namely Safeen Akhtar (PW-9 in this appeal, while PW-7 in connected Cr.A No.40-A/2023) in the Crime Report are that on 30.08.2013 she in injured condition alongwith dead bodies of her husband Javed Akhtar and son namely Mohsin Javed lodged a report to the local police at 16:00 hours in Emergency Ward DHQ Hospital Haripur in shape of Murasila to the effect that on that day at 02:30 p.m. she alongwith her husband Javed Akhtar and son Mohsin Javed as well as other inmates of the house were present in their house, when they heard fire shots outside their house, whereupon they came out of the house and saw that their co-villagers namely Saen Nazakat (acquitted respondent in connected Cr.A No.40-A/2023) armed with pistol, Ehtesham, Aamir and Rafaqar armed with Kalashnikovs and accused Mamrez (acquitted respondent in this appeal) armed with riffle were coming towards their house and were making aerial firing. Acquitted respondent Mamrez asked his companions to murder all of them upon which acquitted respondent Saen Nazakat fired with his pistol at Javed Akhtar, who was hit on the abdomen, while acquitted respondent Ehtesham made firing with Kalashnikov at Mohsin Javed who sustained injuries on various parts of the body.
Accused Mamrez gave butt blow to the complainant on her head, while acquitted respondents Aamir and Rafaqat made firing at the complainant as well as both the deceased, however, the complainant escaped unhurt. Both Javed Akhtar and Mohsin Javed succumbed to the injuries on the way to hospital. The occurrence was witnessed by Saeed Akhtar and Muhammad Irshad besides the complainant. Motive for the occurrence was shown as an altercation taken place in Masjid between deceased Mohsin Javed and Ehtesham as well as Aamir.
3. After registration of the case, a full fledged investigation was carried out and then challan was put in court against the acquitted respondents. Trial of the acquitted respondents in present appeal was conducted in case No.73/7 of 2013 wherein in support of its case, prosecution produced as many as sixteen witnesses and on conclusion of trial against them, after hearing arguments of both the parties, the learned trial court acquitted them of the charges levelled against them, while acquitted respondent in connected Cr.A No.40- A/2023 namely Saen Nazakat (then absconding) was declared as Proclaimed Offender vide impugned order and judgment dated 11.04.2018. On arrest of acquitted respondent Saen Nazakat and on completion of investigation to his extent, supplementary challan was submitted against him whereupon his trial was conducted in case No.31/7 of 2021 wherein to support of its case, prosecution produced as many as eighteen witnesses while statements of PW-8, PW-13, PW-14 & PW-15 recorded against him in terms of section 5 1 2 Cr.PC were transposed to his trial and on conclusion of his trial, after hearing arguments of both the parties, the learned trial court acquitted him, too, of the charges levelled against him, vide impugned order and judgment dated 30.10.2023. Feeling aggrieved, the complainant has assailed both the aforesaid acquittal orders/judgments before this Court through this and the connected appeal.
4. Arguments of learned counsel for the parties and learned Assistant Advocate General were heard in detail and record perused with their able assistance.
5. At the very outset, it was noted that report regarding the occurrence was recorded at 16:00 hours while the incident took place at 02:30 p.m. The Investigation Officer namely Aurangzeb (PW-15 in this appeal whose statement is also transposed in trial of acquitted respondent Muhammad Nazakat) has categorically stated in the beginning of his cross-examination that he started investigation at 15:20 hours i.e. prior to lodging of report at 16:00 hours. This aspect of the case indicates that preliminary inquiry/investigation was conducted before the registration of case. The Supreme Court of Pakistan in a case[1], has observed that the FIR in respect of the incident in issue had not been lodged at the Police Station giving rise to an inference that the same had been lodged and registered after deliberations and preliminary investigation. Similarly, in another case,
2. the Supreme Court has acquitted the accused and held that FIR in respect of the incident in issue had been chalked out after deliberations and preliminary investigation at the spot. Similarly, the Supreme Court in case of Mian Muhammad Nawaz Sharif[3], has acquitted him while observing that from the statement of the Investigating Officer, it appears that investigation and collection of evidence had already been done before the F.I.R. was lodged and the materials so collected were simply handed over to the Investigating Officer to be produced in Court.
6. Though two persons lost their lives in the occurrence due to firearm injuries and the complainant sustained injury and in order to bring home charge against the acquitted respondents, the prosecution produced the ocular account through eyewitnesses i.e. the complainant namely Mst.Shafeen Akhtar as PW-9 (as PW-7 in trial of acquitted respondent Nazakat), Saeed Akhtar as PW-10, Muhammad Irshad as PW-11, however, when we gone through their Court statements they would transpire that the same are not trustworthy and confidence inspiring as the same is not supported by any medical evidence and the occurrence has not been proved in the mode and manner as alleged in the Crime Report. As per the ocular account furnished by the complainant/appellant, acquitted respondent Ehtisham made firing at her son Mohsin Javed with Kalashnikov, however, as per Dr.Roshan Zada PW-7 (as PW-9 in trial of acquitted respondent Nazakat) inlet wounds on the person of deceased Mohsin Javed were of three different sizes. He also admitted it correct that the sizes of injuries on the person of deceased Mohsin Javed are possible through use of different weapons. It is well settled by now that whenever ocular account is contradicted by the medical evidence then such ocular account cannot be relied upon. In a recent case[4] the Supreme Court of Pakistan while acquitting the accused has held that once a single loophole is observed in a case presented by the prosecution, such as conflict in the ocular account and medical evidence or presence of eye-witnesses being doubtful, the benefit of such loophole/lacuna in the prosecution's case automatically goes in favour of an accused. The conviction must be based on unimpeachable, trustworthy and reliable evidence. Any doubt arising in prosecution case is to be resolved in favour of the accused. However, as discussed above, the prosecution has failed to prove its case beyond any reasonable doubt. Similarly, in another case[5] the Supreme Court observed that according to two witnesses of the ocular account, the accused while armed with .30 bore pistol made a straight fire shot on deceased, which landed on his chest, due to which he fell down and ultimately succumbed to the injury. However, this stance was contradicted by the medical evidence, as according to the doctor, who conducted postmortem examination of the deceased, the injury on the chest, just above the nipple of the deceased, was an exit wound and the margins of the wound were black whereas the entry wound was on the back of the deceased i.e. at thoracic spine. Blackening around the wound showed that the fire shot would have been made from a close range but according to the site plan, the accused was shown standing at a distance of 18 steps away from the deceased. Such major discrepancy raised serious doubts on the credibility of the prosecution witnesses of the ocular account.
Prosecution had failed to prove its case beyond any reasonable shadow of doubt. In another case[6], the Supreme Court of Pakistan has acquitted both the accused by observing the ocular account in this case is full of contradictions and does not inspire confidence.
7. It also merits to mention here that albeit the complainant/appellant alleged to have sustained injuries, however, there is no cavil with the proposition that merely because a witness has stamp of injury on his/her person is not per-se tantamount to a stamp of credence on his/her testimony. In this respect, reliance is placed on cases titled -NAZIR AHMAD vs. MUHAMMAD IQBAL and another" reported as 2011 SCMR 527 and "Muhammad Pervez and others vs. The State and others" reported as 2007 SCMR 670.
8. It is the case of prosecution that prosecution witnesses Mst.Safeen Akhtar and Saeed Akhtar alongwith both the deceased went out of the house on hearing of fire shots, however, site plan transpires that the appellant/ complainant as well as both the deceased and acquitted respondent have not been shown present in front of the house of the deceased rather they are shown at a distance from the house indicating the factum that the complainant party would have proceeded towards the accused party which creates doubt about conduct of the complainant party. Moreover, as per column No.8 of the inquest-report, eyes of deceased Mohsin Javed were found open, which not only makes conduct of eyewitnesses unnatural but also creates doubt about presence of PWs Saeed Akhtar and Muhammad Irshad on the spot. In a case[7] the Supreme Court of Pakistan has observed that the eyes and mouth of the deceased were found open, thus, if the parents, witnesses, and the two close friends were present then, at least after the death as is a consistent practice of such close relatives, they would have closed eyes and mouth of the deceased on his expiry. This fact by itself indicates that none was present with the deceased till his death and why his eyes and mouth remained open and were not set right by any one and his dead body was discovered late in the night.
9. Sifting of record further transpires that the appellant/complainant when appeared during trial of acquitted respondent Nazakat as PW-7 she deviated from her statement recorded during trial of acquitted respondent Ehtisham etc. As PW-7 she stated that she did mention in her report that she alongwith Javed Akhtar, Mohsin Javed and Saeed Akhtar, Muhammad Irshad were present in their house at about 02:05 P.M (confronted wherein, the time as 01:05 PM is not mentioned. She further stated that she did mention in her report that Saeed Akhtar and Irshad prosecution witnesses were present in her house prior to the occurrence (confronted presence of Saeed Akhtar and Muhammad Irshad prosecution witnesses in the house of complainant prior to the occurrence is not mentioned), therefore, statement of the appellant/complainant cannot be relied upon for the purpose of conviction. So far as other eyewitnesses namely Saeed Akhtar and Muhammad Irshad are concerned, the former is resident of village Chhach, while the latter is residing at a distance of 01 mile from the spot, therefore, both these witnesses were not supposed to be present on the spot at the relevant time, however, the prosecution has failed to justify their presence on the spot, therefore, they seem to be chance witnesses. In a case[8], the Supreme Court of Pakistan acquitted the accused by observing that prosecution's eye-witnesses are chance witnesses. They could not prove the reason for their presence at the spot at the time of occurrence. Further reliance is placed on judgments reported as 2022 PCr.LJ 1177 and 2022 PCr.LJ 1334.
10. Perusal of record further reveals that a 12 bore shotgun bearing No.33521 was shown recovered on pointation of acquitted respondent Mamrez which alongwith empty of the same bore were sent to the FSL for analysis and report thereof (Ex.PW-15/13) reads that the recovered empty was not fired from the said shotgun, which creates reasonable doubt in the prosecution case. During his statement recorded under section 342 Cr.PC in case registered under section 13 Arms Act, acquitted respondent Mamrez produced original license regarding the said shotgun which licence was not called in question by the prosecution and in the wake thereof, he alongwith co-accused Ehtesham were acquitted in that case and the recovered shotgun has rightly been ordered to he returned to acquitted respondent Mamrez by the learned trial court.
11. So far as the recovery of Kalashnikov bearing No.59633 on pointation of acquitted respondent Ehtisham is concerned, the same is shown to have been recovered on 01.09.2013, however, as per application for sent the same to FSL, the said Kalashnikov alongwith empties and spent bullet were handed over constable Sheraz No.502 (PW-5 in this appeal/ PW-4 in connected appeal) on 30.08.2013, which not only makes the alleged recovery of Kalashnikov highly doubtful but also causes a serious dent to the prosecution case.
12. Regarding the recovery of pistols including alleged weapon of offence attributed to the acquitted respondent Nazakat alias Saen, it was noted that undisputedly the same were not recovered from his personal possession rather they were recovered from possession of acquitted respondent Ehtisham by PW Chanzeb Khan (then) SHO but the fact remains that the prosecution could not substantiate that which of these pistols belongs to the acquitted respondent Nazakat alias Saen. Moreover, the alleged weapon of offence i.e. pistol was sent to the FSL after about eight years, therefore, it loses sanctity in the eye of law. It is also part of the record that with regard to recovered Kalashnikov, a separate FIR was registered under section 13 Arms Act against the acquitted respondent namely Ehtisham, however, after trial, the same was also culminated into acquittal of the accused.
13. It also merits to mention here that in the Crime Report, the prosecution has set up a motive for the occurrence i.e. an altercation which took place between deceased Mohsin Javed and accused Ehtisham and Aamir in village Masjid during Jumma Prayer, however, neither any witness was produced in this respect nor the prosecution could substantiate motive part of the case. It is settled law that prosecution is not bound to set a motive, however, when once it opted to set a motive then it has to be proved and in case of its failure to do so, benefit thereof has to be given to the accused.
In a case[9], the Supreme Court of Pakistan has observed that according to the prosecution the motive of the occurrence was previous quarrel between co-accused Nazakat Hussain Shah (tried separately) and Wajid, son of the complainant. However, the prosecution failed to produce the said Wajid in order to prove the motive part, therefore, it can safely be concluded that prosecution could not prove the motive part of the story. The Supreme Court of Pakistan in another the case[10] has also held that 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.
14. As far as the alleged abscondance on the part of acquitted respondent Muhammad Nazakat alias Saen is concerned, suffice it to say that abscondance alone is not sufficient to record conviction of accused as it is well-settled norm of the criminal jurisprudence that mere abscondance cannot be made a ground for the conviction of an accused as disappearance of a person after the occurrence is but natural if he is involved in a criminal case rightly or wrongly. In the case[11] the Supreme Court of Pakistan while acquitting the accused has observed that absconsion cannot be viewed as a proof for the offence, which cannot be made basis for conviction, rather it is the prosecution who has to prove its case independently without any reasonable shadow of doubt.
15. It is settled law that for giving benefit to an accused, it is not essential that there should be many circumstances creating doubts, even a single doubt is sufficient to extend its benefit to an accused person as it is the cardinal principle of criminal administration of justice that let hundred guilty persons be acquitted but one innocent person should not be convicted and thus by applying the aforesaid yardstick, the learned trial court has rightly extended the benefit of various doubts in favour of the acquitted respondent. In a recent case[12] the Supreme Court has held that it is a well settled principle of law that for the accused to be afforded the right of the benefit of the doubt, it is not necessary that there should be many circumstances creating uncertainty and if there is only one doubt, the benefit of the same must go to the petitioner. The Supreme Court of Pakistan in another case[13], has held that single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefits, not as a matter of grace and concession but as a matter of right. The conviction must be based on unimpeachable; trustworthy and reliable evidence. Any doubt arising in prosecution's case is to be resolved in favour of the accused and burden of proof is always on prosecution to prove its case beyond reasonable shadow of doubt. Similarly, in a case[14] the Supreme Court has reiterated the same rational by observing that in these circumstances, a dent in the prosecution's case has been created, benefit of which must be given to the appellant. It is a settled law that single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefits, not as a matter of grace and concession but as a matter of right. The conviction must be based on unimpeachable, trustworthy and reliable evidence. In another case[15] the Supreme Court has held that it is settled law that a single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefits, not as a matter of grace and concession but as a matter of right. The conviction must be based on unimpeachable, trustworthy and reliable evidence. Any doubt arising in prosecution case is to be resolved in favour of the accused. Reliance in this behalf can be made upon the following cases:- i) Tariq Pervez v. The State (1995 SCMR 1345), ii) Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), iii) Muhammad Akram v. The State (2009 SCMR 230), iv) Muhammad Zaman v. The State (2014 SCMR 749) and v) Muhammad Mansha v The State" (2018 SCMR 772).
16. For the reasons recorded above, no illegality or irregularity could be either pointed out or found in the impugned judgments/orders dated 11.04.2018 and dated 30.01.2023 in the connected appeal No.40-A/2023, therefore, the same are maintained, while instant criminal appeal as well as the aforesaid connected appeal being meritless are dismissed.
1. Nazeer Ahmed v. The State and others (2019 SCMR 594)
2. Abdul Jabbar alias Jabbari v. The State (2017 SCMR 1 155)
3. Mian Muhammad Nawaz Sharif v. The State (PLD 2009 Supreme Court 814)
4. Khial Muhammad v. The State (2024 SCMR 1490)
5. Tajamal Hussain Shah v The State and another (2022 SCMR 1567)
6. Muhammad Ijaz alias Billa and another vs. The State and others (2024 SCMR 1507)
7. Muhammad Asif vs The State (2017 SCMR 486)
8. Muhammad Hassan vs. The State and others (2024 SCMR 1427)
9. Tajamal Hussain Shah v. The State and another (2022 SCMR 1567)
10. Sarfraz and another vs The State (2023 SCMR 670)
11. Tajamal Hussain Shah vs The State and another (2022 SCMR 1567)
12. Saghir Ahmad vs The State and others (2023 SCMR 241)
13. "Bashir Muhammad Khan v. The State (2022 SCMR 986)
14. Khalid Mehmood alias Khaloo v. The State (2022 SCMR 1148)
15. Kashif Ali alias Kalu v. The State and another (2022 SCMR 1515)