SHEHRAM SARWAR CH., J. Nazar alias Chand and Qadeer alias Viki (appellants) along with their co-accused namely Sarfraz alias Younas, Adeel alias Dhilu, Azeem alias Godu, Waseem and Ehsan Elahi were tried by learned Addl. Sessions Judge, Sialkot in case FIR No.631 dated 12.09.2016, offence under Sections 302, 324, 452, 148 and 149, P.P.C., registered at Police Station Saddar Sialkot District Sialkot for the murder of Hameed (deceased) and Ameer Qasim (deceased), father and brother of complainant respectively and launching murderous assault on Balqees Bibi. Vide judgment dated 27.02.2018 passed by learned trial court, Nazar alias Chand (appellant) has been convicted under Section 302(b), P.P.C. for committing the murder of Ameer Qasim (deceased) and sentenced to imprisonment for life, with a further direction to pay Rs.3,00,000/- as compensation to the legal heirs of deceased under Section 544-A, Cr.P.C. whereas Qadeer alias Viki (appellant) has been convicted under Section 302(b) P.P.C. for committing the murder of Hameed (deceased) and sentenced to imprisonment for life, with a further direction to pay Rs.3,00,000/- as compensation to the legal heirs of deceased under Section 544-A, Cr.P.C. In default of payment of compensation amount, both the appellants shall further undergo simple imprisonment for six months each.
Qadeer alias Viki (appellant) was also convicted under Section 337-F(iv), P.P.C. and sentenced to rigorous imprisonment for three years along with Daman of Rs.30,000/- payable to the injured.
However, the appellants were acquitted of the charges under Sections 324, 460, 148 and 149, P.P.C.
Benefit of Section 382-B, Cr.P.C. was extended to the appellants. Through the same judgment, Sarfraz alias Younas, Adeel alias Dhilu, Azeem alias Godu, Waseem and Ehsan Elahi, co-accused of the appellants were acquitted of the charges by extending them benefit of doubt and Crl. Appeal No.185647 of 2018 filed by the complainant against their acquittal was dismissed for non- prosecution vide order dated 30.10.2023 passed by a learned Division Bench of this Court. Assailing the above convictions and sentences, the appellants have filed the appeal in hand. The complainant has also preferred a Crl. Revision No.185646/2018 for enhancement of sentences of the appellants as well as compensation amount. Since both the matters have arisen out of the same judgment, therefore, the same are being decided together through this single judgment.
2. Prosecution story, as set out in the FIR (Ex.PZ) registered on the written application (Ex.PX) of Ameer Hamza, complainant (PW.11) is that on 12.09.2016 at around 7:00 p.m. he (complainant) along with his family members was present in his house and his paternal uncle namely Muhammad Waris had come to visit his house. Suddenly, Sarfraz alias Yousa, Nazar alias Chand (appellant), Qadeer alias Viki (appellant), Tayyab alias Dhilu, Ehsan Elahi alias Ehsanaa, Adeel alias Deelu, Waseem alias Cheema, Azeem alias Kodu and one unknown accused, all armed with tokas forcibly entered the house of the complainant. The accused persons raised a lalkara to teach a lesson to Hameed for previous enmity and assaulted upon Hameed and Ameer Qasim, father and brother of complainant respectively with tokas. Qadeer alias Viki (appellant) inflicted a toka blow to Hameed, which landed near his aorta. Ehsan Elahi gave a toka blow on left side of head of Haineed. Adeel alias Deelu gave a toka blow to Hameed hitting near his left eye. Waseem alias Cheema gave a toka blow to Hameed, which hit below his left ear. Qadeer alias Viki (appellant) again gave successive toka blows on right arm of Hameed, as a result whereof he fell on the ground in injured condition and the blood started oozing from the injuries. Nazar alias Chand (appellant) inflicted a toka blow to Ameer Qasim, hitting on his forehead and the injury went to his nose, resulting into amputation of his nose. Tayyab alias Dhilu gave a toka blc won the aorta of Ameer Qasim, which cuts his aorta and the shower of bleeding was started. Sarfraz alias Yousa and Azeem alias Godu gave toka blows to Ameer Qasim, due to which he sustained injuries on his right arm. Tayyab alias Dhilu gave a toka blow on the head of Ameer Qasim, as a result whereof he sustained grievous injury. Nazar alias Chand (appellant) inflicted a toka blow to Ameer Qasim, which landed on right side of back of his neck. Ameer Qasim fell down in irjured condition and succumbed to the injuries on the spot. Balqees Bibi, mother of complainant, attempted to rescue Ameer Qasim, upon which Qadeer alias Viki (appellant) and Sarfraz alias Yousa gave toka blows to Balqees Bibi and she sustained injuries on right side of back of her neck and elbow. Azeem alias Godu inflicted toka blows to Balqees Bibi, which hit on right side of her head and thumb of left hand, resultantly she too fell on the ground in injured condition. The accused persons while raising lalkaras fled away from the place of occurrence. The complainant and others shifted his father, brother and mother to the hospital. Hameed succumbed to the injuries in the hospital whereas Balqees remained admitted in the hospital. Motive behind the occurrence as alleged in the FIR was previous enmity.
3. Arguments heard. Record perused.
4. The ocular account in this case consists of Ameer Hamza (PW.11) and Mst. Balqees Bibi (PW.12). It was case of the complainant and other eye-witness in the FIR and stated by them before the learned trial court that the appellants along with their co-accused while armed with tokas attacked them and narrated the specific seat/locale of injuries on their persons. The scrutiny of prosecution evidence reflects the falsity of eye-witnesses as the occurrence was committed within a few minutes and it was humanly impossible to provide such minute details in such a photographic manner or to assign the specific role and furnish detailed description of the same, which would rather infer to falsely rope in the accused persons, as such lodging of the FIR with such minutest details of the case rules out the possibility of truthfulness and narratives of the FIR suggest the exaggeration and improvements made by the eye-witnesses admittedly inimical towards the appellants. In this regard, reliance may be placed on the case law reported as "Irfan Ali v. The State" (2015 SCMR 840). I have further noted that the presence of Ameer Hamza, complainant (PW.11) on the spot at the time of incident is doubtful in nature because he did not receive even a scratch during the incident. Moreover, he did not make an abortive attempt to save the lives of his father, mother and brother from the clutches of appellants and their co-accused. His name is not mentioned in the relevant column of medico-legal-report (Exh.PB) of Mst. Balqees Bibi accompanying her in injured condition to hospital. As far as deposition made by Mst. Balqees (PW.12) is concerned the same is no avail to the prosecution because the occurrence allegedly took place on 12.09.2016 whereas her statement under Section 161, Cr.P.C. was recorded on 13.09.2016 i.e., a but one day after the occurrence despite the fact that she was in full senses at the time of her medical examination. It is a settled law that credibility of a witness is looked with serious suspicion if his statement under section 161, Cr.P.C. is recorded with delay without offering any plausible explanation. Reliance is placed on case law titled as "Muhammad Khan v. Maula Bakhsh and another" (1998 SCMR 570). This argument of learned Law Officer as well as learned counsel for the complainant that presence of injured PW cannot be doubted at the place of occurrence due to the injury on her person has no substance because merely the injury on the body of a person would not stamp him/her a truthful witness.
Reliance is placed on case law titled as "Amin Ali and another v. The State" (2011 SCMR 323). The disturbing part of the ocular account is that on the basis of the same statements made by the eye-witnesses, Sarfraz alias Younas, Adeel alias Dhilu, Azeem alias Godu, Waseem and Ehsan Elahi who actively participated in, the occurrence and caused injuries to both the deceased as well as injured lady, have been acquitted by the learned trial Court and appeal against their acquittal has been dismissed for non-prosecution by a learned Division Bench of this Court vide order dated 30.10.2023, therefore, the question for determination before me, is whether the evidence which has been disbelieved qua the acquitted co-accused of the appellants namely Sarfraz alias Younas, Adeel alias Bhilu, Azeem alias Godu, Waseem and Ehsan Elahi can be believed against the appellants? In this regard, I am guided by the judgment of the Hon'ble Supreme Court of Pakistan reported as "Shahbaz v. The State" (2016 SCMR 1763), wherein it was held at page 1765 as under:- "2. ...The law is settled by now that if some eye-witnesses are disbelieved against some accused persons attributed effective roles then the same eye-witnesses cannot be relied upon to the extent of the other accused persons in the absence of any independent corroboration and a reference in this respect may be made to the cases of Ghulam Sikandar and another v. Mamaraz Khan and others (PLD 1985 SC 11), Sarfraz alias Sappi and 2 others v. The State (2000 SCMR 1758), Iftikhar Hussain and others v. The State (2004 SCMR 1185) and Akhtar Ali and others v. State (2008 SCMR 6). In the case in hand no independent corroboration worth its name was available to the extent of Shahbaz appellant inasmuch as the trial court and the High Court lad disbelieved the motive set up by the prosecution, the alleged recovery of a chhurri from the custody of the appellant was inconsequential because the recovered chhurri was not stained With blood, post-mortem examination of the deadbody of Aftab Akhtar deceased was noticeably delayed as the same had been conducted in the following morning and the duration between death and post-mortem examination was recorded as about eleven hour;. It appears that time had been consumed by the complainant party and the local police in procuring and planting eye-witnesses and in cooking up a story for the prosecution. The said story of the prosecution already stands substantially disbelieved to the extent of Muhammad Abbas co-accused and we have found that the same was not free from doubt ever to the extent of Shahbaz appellant."
The above said view has been further fortified in case law titled as "Imtiaz alias Taj v. The State and others" (2018 SCMR 344) and "Tariq Mehmood v. The State" (2021 SCMR 471). Motive behind the occurrence was previous enmity of murders between the parties but no solid evidence in that regard was produced by the prosecution. Moreover, motive is a double edged weapon because if it could be a reason for the commission of a crime then at the same time it (motive) could be a reason for false involvement of an accused. Therefore, I hold that the prosecution has failed to prove the motive and same has rightly been disbelieved by the learned trial Court in Para-31 of the impugned judgment. The alleged recoveries of tokas at the instance of appellants are concerned, suffice it to observe, that recovery is merely a corroborative piece of evidence and relevant only if the primary evidence i.e. ocular account inspires confidence which is not the situation in this case.
As far as medical evidence is concerned, the same may confirm the ocular account with regard to the receipt of injury, locale of injury, kind of weapon used for causing the injury, duration between the injury and the death but it would not tell the name of the assailants. Reliance is placed on "Ata Muhammad and another v. The State" (1995 SCMR 599). Therefore, I hold that the evidence furnished by the prosecution is shaky in nature and cannot be relied upon for maintaining convictions/sentences of the appellants.
5. So far as the defence pleas taken by the appellants in their statements under Section 342, Code of Criminal Procedure are concerned, since the prosecution evidence is doubtful in nature, therefore, there is no need to discuss the same which are exculpatory in nature.
6. I have considered all the pros and cons of this case and have come to this irresistible conclusion that the prosecution could not prove its case against the appellants beyond any shadow of doubt.
It is, by now well established principle of law that it is the prosecution, which has to prove its case against the accused by standing on its own legs and it cannot take any benefit from the weaknesses of the case of the defence. In the instant case, the prosecution remained failed to discharge its responsibility of proving the case against the appellants. It is also well established that if there is a single circumstance which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances which have created serious doubt about the prosecution story. In this regard, reliance may be placed on the case law reported as "Muhammad Akram v. The State"
(2009 SCMR 230).
7. For the foregoing reason, the appeal in hand filed by Nazar alias Chand and Qadeer alias Viki, appellants is allowed, convictions and sentences awarded to them vide judgment dated 27.02.2018 passed by the learned trial Court are set aside and they are acquitted of the charges while extending them benefit of doubt. The appellants are in jail. They shall be released forthwith if not required to be detained in any other case.
8. In view of above discussion, Criminal Revision No.185646 of 2018 filed by the complainant for enhancement of sentences of appellants as well as compensation amount imposed upon them having no merits is dismissed.
9. Before parting with this judgment, it is clarified that the observations recorded in this judgment are relevant only for the disposal of this appeal which shall not influence the learned trial court in any manner whatsoever in case of arrest and trial of co-accused of the appellant namely Tayyab alias Dhilu who was proclaimed offender at the time of pronouncement of the impugned judgment.