FAROOQ HAIDER, J.:- This single judgment will dispose of Crl. Appeal No.20548-J/2022 filed by Muhammad Ali alias Ali Hassan (appellant) through jail authorities against his "convictions & sentences" and Murder Reference No.17/2022 sent by trial court, as both these matters have arisen out of one and the same judgment dated: 18.01.2022 passed by learned Addl. Sessions Judge, Sahiwal, District Sargodha/trial court.
2. Muhammad Ali alias Ali Hassan (appellant) along with his co-accused persons namely Muhammad Zubair and Muhammad Saad Ullah was tried in complaint case titled as "Ahmad versus Muhammad Ali alias Ali Hassan, etc." under Sections: 302, 324, 337 A(i), 337 F(i), 34 PPC and trial court after conclusion of the trial, vide impugned judgment dated: 18.01.2022 while acquitting Muhammad Zubair and Muhammad Saad Ullah (aforementioned co-accused persons) has convicted and sentenced the appellant as under: - Convictions Sentences Under Section: 302(b) PPC"Death" as Taz'ir (for committing Qatl-e-Amd of Kamran) with payment of compensation Rs.5,00,000/- to the legal heirs of the deceased under Section: 544-A Cr.P.C. and in default of payment of compensation amount, to undergo S.I. for six months Under Section: 337 A(i) PPC"Daman" for causing two injuries to Nimra Bibi Rs.10,000/- each (total Rs.20,000/-).
Under Section: 337 F(i) PPC"Daman" for causing injury to Nimra Bibi Rs.5000/-. {Initially Muhammad Ali alias Ali Hassan (appellant) assailed his "convictions and sentences" by way of filing Crl. Appeal No.6166/2022 through Malik Shahid Iqbal Bhagoor, Advocate, who is not present before the Court today and said appeal has been disposed of today as having become superfluous}.
3. Brief facts, as per Fard Bian/oral statement made by Ahmad (complainant/PW-7) to Rab Nawaz, S.I. (CW-1) for registration of the case are that he is resident of Mohallah Hussain Abad, Sahiwal and is a labourer; on 10.04.2018 at about 4:00 p.m., complainant and his son namely Muhammad Kamran aged about 25/26 years, who was holding his minor daughter namely Nimra Bibi aged about two years in his lap, after coming out of haveli maal mowaishian intended to go towards their house; as soon as they reached at the door of haveli maal mowaishian in the thoroughfare, Muhammad Kamran son of the complainant was few paces ahead of the complainant, Muhammad Ali armed with pistol .30-bore, Muhammad Zubair armed with pistol .30-bore (both sons of Muhammad Asad Ullah) and Muhammad Asad Ullah son of Muhammad Aslam empty handed, suddenly came there; Muhammad Asad Ullah raised lalkara that Muhammad Kamran be done to death, upon which Muhammad Ali fired four successive shots with pistol .30-bore landing on front side of neck, chin, near left ear and front of left shoulder, due to which minor Nimra Bibi fell down from Muhammad Kamran; Muhammad Zubair fired five shots with pistol .30-bore hitting Muhammad Kamran at right flank, front of right thigh, left side of waist and left shoulder, due to which Muhammad Kamran fell down in severe injured condition; on reports of firing as well as hue and cry of the complainant, Muhammad Qasim and Muhammad Fayyaz residents of the deh attracted at the spot while witnessing the occurrence; on seeing them, accused persons fled away towards west while brandishing firearms; Muhammad Kamran (son) and Mst. Nimra Bibi (paternal grand-daughter), on whose face, red spots had emerged due to gun power were taken by them to Civil Hospital, Sahiwal for treatment; Muhammad Kamran succumbed to the injuries in Civil Hospital, Sahiwal.
Motive behind the occurrence was that accused persons and Muhammad Kamran had given abuses to each other ten days prior to the occurrence, due to which grudge; accused persons had committed murder of Muhammad Kamran by firing.
On the basis of aforementioned Fard Bian/oral statement of Ahmad (complainant/PW-7) case was registered vide F.I.R. No.197/2018 dated: 10.04.2018 under Sections: 302, 324, 34 PPC {offence under Section: 34 PPC was deleted whereas offences under Sections: 337 A(i), 337 F(i) PPC were added subsequently) at Police Station: Sahiwal, District Sargodha, however, being dissatisfied with the investigation carried out by the local police, complainant filed "complaint" against Muhammad Ali, Muhammad Zubair and Muhammad Asad Ullah, under Sections: 302, 324, 337 A(i), 337 F(i), 34 PPC. However, version of the complainant remained same in the complaint as mentioned by him in the Fard Bian as well as in the FIR.
Muhammad Ali alias Ali Hassan (appellant) along with Muhammad Zubair and Muhammad Saad Ullah (since acquitted co-accused) were summoned by the trial court to face the trial, they were formally charge sheeted to which they pleaded not guilty and claimed trial; complainant produced as many as ten witnesses to prove the charge against the accused whereas three witnesses were examined by the trial court as Court Witnesses; after recording of evidence, appellant was examined under Section: 342 Cr.P.C. but he refuted the allegations levelled against him; he neither opted to appear as his own witness under Section 340(2) Cr.P.C., nor produced any evidence in his defence. Trial court after conclusion of trial has convicted and sentenced the appellant as mentioned above through the impugned judgment dated: 18.01.2022.
4. Learned counsel for the appellant has submitted that convictions recorded against and sentences awarded to the appellant through impugned judgment are against the 'law and facts' and result of non-reading/ misreading of evidence, therefore, same are not sustainable in the eyes of law. Learned counsel for the appellant finally prayed for acquittal of the appellant.
5. Conversely, learned Deputy Prosecutor General has supported the impugned judgment and prayed for dismissal of the appeal.
6. Arguments heard. Record perused.
7. It has been noticed that as per case of prosecution, occurrence took place at 04:00 p.m. on 10.04.2018. Muhammad Kamran (now deceased of the case) and Nimra Bibi (daughter of the deceased/injured of the case) were shifted to Civil Hospital, Sahiwal in injured condition where Muhammad Kamran succumbed to the injuries, however, Nimra Bibi was medically examined and as per her Medicolegal Examination Certificate {copy of the Medicolegal Examination Certificate (Ex.CW-4/A) is available at page No.145 of the Paper Book}, she arrived in the hospital on 10.04.2018 at 09:00 p.m. and medically examined by Lady Dr. Rafia Naseem (CW-4) on the same day at 10:00 p.m. through Muhammad Riaz 121/C (PW-4); Ahmad (complainant/PW-7) got recorded his statement to Rab Nawaz, S.I. (CW-1) at Civil Hospital, Sahiwal on 10.04.2018 at 08:30 p.m., which was sent to the Police Station for registration of the case and on the basis of the same, FIR (Ex.PG) was recorded at 08:45 p.m. at the Police Station; meaning thereby that said distance was coverable within fifteen minutes. It is worth mentioning here that distance between Police Station and THQ Hospital Sahiwal is just 01-Kilometer and in this regard relevant portion of statement of Muhammad Riaz 121/C (PW-4) is hereby reproduced as under:- "Intervening distance between police station Sahiwal and THQ Sahiwal is about 01 KM.
Relevant portion of statement of Ahmad (complainant/PW-7) in this regard is also hereby reproduced as follows:- "PS Sahiwal is at the distance of 1/2 KM where as hospital at the distance of 01 KM from the place of occurrence."
Perusal of aforementioned statement reveals that Police Station was at a distance of half Kilometer from the place of occurrence whereas hospital was at a distance of one Kilometer from the place of occurrence.
As per Column No.4 of the FIR (Ex.PG), distance between the place of occurrence and Police Station was just two Kilometers.
Though as per case of prosecution, Muhammad Kamran (now deceased of the case) was taken to Civil Hospital, Sahiwal in injured condition, however, copy of any Entry Register showing arrival of Muhammad Kamran in injured condition in Civil Hospital, Sahiwal or any entry to show that after arrival of Muhammad Kamran, he was medically examined and found dead has not been produced by the prosecution whereas Medicolegal Examination Certificate (Ex.CW-4/A) of Nimra Bibi shows that she arrived in the hospital at 09:00 p.m. on 10.04.2018 and name of complainant or any other cited eye witness as a person accompanying her is not mentioned in her Medicolegal Examination Certificate rather name of Muhammad Riaz 121/C (PW-4) is mentioned therein.
Muhammad Riaz 121/C (PW-4) has categorically stated in his statement before the court that Nimra Bibi was entrusted to him for the medical examination and after medical examination, he produced MLC before Rab Nawaz, S.I./ Investigating Officer of the case and relevant portion of his statement in this regard is hereby produced as under:- "On 10.04.2018 Nimra Bibi minor aged about 2 years was entrusted to me for medical examination.
After medical examination of Nimra 1 produced the MLC before the I.O Rab Nawaz who annexed same with record."
As per statement of Dr. Farhat Abbas Joiya (PW-6) who conducted postmortem examination over dead body of Muhammad Kamran (deceased), time of death of the deceased was 04:00 p.m. on 10.04.2018, probable time that elapsed between injury and death mentioned in the Postmortem Examination Report (Ex.PD) was 20-30 minutes; dead body was received in the dead house at 07:30 p.m., police papers were received at 08:30 p.m. on 10.04.2018 whereas autopsy was conducted at 08:45 p.m. on the same day and relevant portions of statement of Dr. Farhat Abbas Joiya (PW-6) in this regard are hereby produced as under:- "The dead body was received in the dead house at 7:30 P.M. The police papers were produced before me at 08:30 P.M. and I conducted autopsy at 08:45 P.M."
"I received dead body of the deceased at 07:00 pm in dead house. It is correct that I conducted the autopsy of the deceased at 08.45 pm. The delay occurred due to the non-availability of the police paper. It is correct that I recorded time of death as 04.00 pm according to police papers and not my own observation."
So, if Muhammad Kamran died at 04:00 p.m. after receiving injuries within 20-30 minutes and distance between the place of occurrence and Police Station was just two Kilometers as per Column No.4 of the FIR (Ex.PG) whereas distance between Police Station and Civil Hospital, Sahiwal was coverable within fifteen minutes, then why matter was not immediately reported to the police for registration of the case?
It is worth mentioning here that complainant did not send any person for registration of the case after the occurrence and even did not explain the delay in making statement for case, relevant portions of the statement of Ahmad (complainant/PW-7) are hereby reproduced as under:- "I have not sent any person to police station for information."
"It is correct that I had not explained the delay of recording of my statement."
It is 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. 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..."
It is relevant to mention that as per statement of Dr. Farhat Abbas Joiya (PW-6) rigor mortis was fully developed and fully fixed all over the dead body however duration between death and postmortem examination was 4 to 6 hours, relevant portions of his statements are hereby reproduced as under:- "Rigor Mortis were fully developed and fully fixed all over the body." "The duration between death and postmortem was 4 to 6 hours."
It goes without saying that as far as "opinion of expert" is concerned, it should be based upon the settled principles on the subject and relevant treatises but if it is otherwise then same has to be examined carefully on touchstone of relevant principles on the subject and treatises and if it has been found contrary to those, then it shall be taken as ipse dixit and Court shall make its opinion while preferring settled principles on the subject found in relevant treatises; in this case, on the one hand Dr. Farhat Abbas Joiya (PW-6), who conducted post-mortem examination of deceased person, opined that probable time between death and post-mortem is four to six hours but on the other hand, he has categorically found that rigor mortis was fully developed and fully fixed all over the dead body. Since said opinion regarding duration of time between death and post-mortem is not tallying with the time usually consumed for reaching rigor mortis to "developed stage", therefore, it has been examined on the touchstone of the settled principles on the subject; as a matter of fact, rigor mortis means rigidity of death, it is a condition characterised by stiffening, shortening and opacity of the muscles which follow the period of primary relaxation. It is due to chemical changes involving the proteins of the muscle fibres and it marks the end of the muscle's cellular or molecular life. The contractile element of the muscle consists of protein filaments of two types, viz, myosin and actin. They lie in interdigitating manner. In the relaxed state, the actin filaments interdigitate with the myosin filaments only to a small extent but when the muscle contracts, they interdigitate to a great extent. The principal factor concerned in the process of contraction and relaxation of the muscle is the presence of the enzyme ATP which is in high concentration in a resting muscle. Its production and utilisation are constantly balanced in life.
After death, ATP is resynthesised for a short time depending upon the glycogen available locally, but after this glycogen is used up, ATP cannot be resynthesised. This leads to the fusion of myosin and actin filaments into a dehydrated stiff gel resulting in the condition known as rigor mortis.
During rigor mortis, the reaction of the muscle changes from slightly alkaline to distinctly acid owing probably to the formation of lactic acid. Rigor mortis persists until autolysis of myosin and actin filaments occurs as a part of putrefaction. Every muscle in the body, voluntary and involuntary, takes part in the process, including the musculature of the heart and blood vessels, the iris of the eye, the platysma of the skin, and the dartos of the scrotum. According to Parikh"s Textbook of Medical Jurisprudence and Toxicology, rigor mortis first appears in involuntary muscles and then in voluntary muscles. It is not dependent on the nerve supply as it develops in paralysed limbs also. It is tested by gently bending the various joints of the body. In the involuntary muscles, rigor mortis appears in the heart within a hour after death. In the voluntary muscles, the sequence is as follows: Rigor mortis first appears as a rule in the muscles of the eyelids (3-4 hours), and then in the muscles of the face (4- 5 hours), neck and trunk (5-7 hours), followed by muscles of the upper extremities (7-9 hours) and then the legs (9-11 hours). The last to be affected are the small muscles of the fingers and toes (11-12 hours). When rigor mortis is thus established, the jaw, neck, and extremities become fixed in position with the arms bent at the elbows and the legs at the knees and hips, and movements at the joint are possible only within a very limited range. The rigidity generally passes off, in the same order in which it occurred, due to autolysis of muscle proteins. In Indian subcontinent i.e. Pakistan, Bangladesh and India, rigor mortis commences in 2-3 hours after death, takes about 12 hours to develop from head to foot, persists for another 12 hour, and takes about 12 hours to pass off. Thus, the presence and extent, or absence of rigor mortis helps to provide a rough estimate of the time since death. As for example, if rigor mortis has not set in, the time since death would be within 2 hours and if it has developed, the time since death would be within about 12-24 hours. The factors which influence rigor mortis include age, health and mode of the death also and according to Parikh"s Textbook of Medical Jurisprudence and Toxicology, the onset of rigor is later and the duration longer in the strong muscular person and similarly in cases of sudden death, in healthy adults, a late onset and a long duration is usual. In Modi's Medical Jurisprudence & Toxicology, it has been categorically mentioned that in general, rigor mortis sets in one to two hours after death, is developed in about twelve hour. Therefore, this aspect raises eyebrows regarding prosecution version qua stated time of death/occurrence particularly when postmortem examination was conducted at 08:45 p.m. on 10.06.2018.
This state of affairs reflects that none of the cited witnesses including the complainant was present at the place of occurrence and time has been consumed for procuring, inducing and engaging the witnesses, tailoring story for the case of prosecution and then registering the case in its present form after much delay and in above scenario, First Information Report (crime report), which is cornerstone of the case of the prosecution, cannot be termed as promptly recorded and such sort of FIR cannot provide any support to the case of prosecution rather superstructure i.e. case of prosecution raised on the basis of such sort of FIR is bound to fall and in this regard, cases of "HAROON SHAFIQUE versus The STATE and others"(2018 SCMR 2118), "MUHAMMAD RAFIQUE alias FEEQA versus The STATE" (2019 SCMR 1068), "SUFYAN NAWAZ and another versus The STATE and others" (2020 SCMR 192) and "MUHAMMAD ADNAN and another versus The STATE and others"
(2021 SCMR 16) can be safely referred.
It is very much relevant and important to mention here that as per Fard Bian as well as FIR (Exh.PG), statement of Ahmad (complainant/ PW-7) was recorded by Rab Nawaz, S.I. (CW-1) at 08:30 p.m. in Civil Hospital, Sahiwal whereas Ahmad complainant while appearing as PW-7 during trial of the case clearly stated that Rab Nawaz, S.I. after receipt of information qua the occurrence reached at the spot and recorded his statement and on the basis of which, FIR (Ex.PG) was registered and relevant portion of the statement of Ahmad (complainant/PW-4) in this regard reads as follows:- "After receipt of information Rab Nawaz S.I HIU Sahiwal circle reached at the spot and recorded my statement, on the basis of which case FIR No. 197, dated 10.04.2018 u/s 302/324 PPC P.S Sahiwal Ex.P-G was registered."
(emphasis added)
Rab Nawaz, S.I. (CW-1) categorically stated that he reached at THQ Sahiwal, recorded statement of Ahmad (complainant) and sent the same to Police Station for registration of the case and relevant portion of his statement in this regard is hereby reproduced as follows:- "Stated that on 10.04.2018, I was posted as SI/I.O circle Sahiwal. On the same day, on receiving information of this occurrence I reached at THQ Sahiwal where Ahmad s/o Suhara complainant narrated the story of occurrence. I recorded his statement/complaint and sent the same to police station through Muhammad Nawaz 135-C for registration of FIR."
So, prosecution has contradictory version regarding place of recording of statement of Ahmad (complainant/PW-7) qua registration of the case and prosecution could not establish the exact place of recording of statement of the complainant regarding the occurrence for the registration of case.
So far as ocular account in this case is concerned, same consists upon the statements of Ahmad (complainant/PW-7) and Muhammad Qasim (PW-8). As per prosecution version contained in Fard Bian of the complainant, complaint filed by the complainant (Ex.PH) as well as in the statements got recorded by Ahmad (complainant/PW-7) and Muhammad Qasim (cited eye witness/PW-8), Muhammad Asad Ullah raised lalkara that Kamran be murdered, upon which Muhammad Ali fired four successive shots with pistol .30-bore landing on front side of neck, chin, near left ear and front of left shoulder, due to which minor Nimra Bibi fell down from Muhammad Kamran, Muhammad Zubair fired five shots with pistol .30-bore hitting Muhammad Kamran at right flank, front of right thigh, left side of waist and left shoulder, due to which Muhammad Kamran fell down in severe injured condition; relevant portion of statement of Ahmad (complainant/PW-7) in this regard is hereby reproduced as follows:- "Muhammad Asad raised lalkara that Kamran be murdered. On the lalkara of Asad Ullah, Muhammad Ali fired four shots from his pistol consecutively which hit Kamran on the front side of neck, chin, left ear, and on front of left shoulder, whereupon minor Nimra Bibi fell down, where after Muhammad Zubair shot five fires from his pistol which landed on left flank, right thigh on the back side of left and on left shoulder, in consequence whereof Kamran fell down on ground." meaning thereby that equally effective role of causing firearm injuries to Kamran (deceased of the case) was attributed to Muhammad Ali (present appellant) as well as Muhammad Zubair (co- accused), however, Muhammad Zubair and Muhammad Asad Ullah have been acquitted on the basis of same evidence and on the same facts, which acquittal is still holding the field and the same has even not been challenged uptill now as confirmed by learned Deputy Prosecutor General, therefore, said evidence now can only be relied and used against present appellant if same is strongly corroborated by the independent evidence; in this regard, guidance has been sought from the cases of "Munir Ahmad and another versus The State and others" (2019 SCMR 79), "ALTAF HUSSAIN versus The STATE" (2019 SCMR 274), "MUHAMMAD IDREES and another versus The STATE and others" (2021 SCMR 612), "PERVAIZ KHAN and another versus The STATE"
(2022 SCMR 393), "RAFAQAT ALI versus The STATE" (2022 SCMR 1107), "SAJJAD HUSSAIN versus The STATE and others" (2022 SCMR 1540) and "AMEERUDDIN versus The STATE" (PLD 2025 Supreme Court 383).
As far as medical evidence is concerned, it is trite law that medical evidence is mere supportive/confirmatory type of evidence; it can tell about locale, nature, magnitude of injury, duration of the injury and kind of weapon used for causing injury but it cannot tell about identity of the assailant who caused the injury; therefore, same neither can provide any corroboration nor is of any help to the prosecution in peculiar facts and circumstances of the case and in this regard guidance has been sought from the case of "MUHAMMAD RAMZAN versus The State" (2025 SCMR 762), relevant portion from the case law is as under:- "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."
Even otherwise, when as per statement of Dr. Farhat Abbas Joiya (PW-6), who conducted postmortem examination over dead body of the deceased has observed that "rigor mortis were fully developed and fully fixed all over the body", then it has not supported the ocular account qua time of death of the deceased in this case.
So far as recovery of pistol .30-bore from the appellant through recovery memo (Ex.PC) is concerned, suffice it to say that any empty cartridge was not sent for comparison and as per report of Punjab Forensic Science Agency, Lahore (Ex.PL), said pistol was only found in working condition, hence said report is inconsequential and recovery of the pistol is of no help to the case of prosecution; in this regard, guidance has been sought from the case of "LIAQAT ALI and another versus The STATE and others" (2021 SCMR 780).
As far as motive alleged in this case i.e. exchange of abuses between Kamran (now deceased of the case) and accused persons prior to ten days of the occurrence is concerned, suffice it to say that any evidence in said regard could not be produced by the prosecution during trial of the case; in this regard, relevant portion of the statement of Ahmad (complainant/PW-7) is hereby reproduced as under:- "It is correct that I had not mentioned the place, time, date and witnesses of motive part of the occurrence in Ex.PG and Ex.PH."
Similarly, relevant portion of the statement of Muhammad Qasim (PW-8) in this regard is also hereby reproduced as under:- "It is correct that I had not mentioned the place, time, date and witnesses of motive part of the occurrence in my statement before police."
It is relevant to mention here that for the valid reasons, trial court in Paragraph No.12 of the impugned judgment dated: 18.10.2022 has observed that motive part of the case remained unproved and relevant portion from the same reads as under:- "In view of the above noted statements of PW.7 & PW.8, motive part of the case remained unproved."
So, motive could not be proved in the case.
8. When all the aforementioned factors are taken into consideration in totality, then it is crystal clear that ocular account in this case, which has been already disbelieved qua co-accused persons namely Muhammad Zubair and Muhammad Asad Ullah, who both have been acquitted, and effective role of causing firearm injuries to the deceased was alleged against Muhammad Zubair also and said acquittal is still holding the filed, has not been now corroborated by any evidence and for the said reason cannot be relied for convicting and sentencing the appellant and thus discarded.
9. 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.
10. In the instant case after examining the prosecution case from all corners and evaluating it on the touchstone of principle of "safe administration of criminal justice", this Court has arrived at the conclusion that prosecution has miserably failed to establish its case against the appellant beyond shadow of doubt. As prosecution has failed to prove its case against the appellant, therefore, there is no need to discuss defence version.
11. Resultantly, instant appeal bearing Crl. Appeal No.20548-J/2022, filed by Muhamad Ali alias Ali Hassan (appellant), is allowed; convictions recorded and sentences awarded to the appellant through impugned judgment dated: 18.01.2022 are hereby set aside. Appellant is acquitted of the charge, he be released from jail forthwith, if not required in any other case.
Murder Reference No.17 of 2022 is answered in negative and death sentence awarded to Muhammad Ali alias Ali Hassan is not confirmed.