Abher Gul Khan, J. Qalab Abbas & Amjad Pervaiz (appellants) along with two others, namely, Umar Hayat & Faheem Ashraf were tried by learned Additional Sessions Judge, Malakwal, District Mandi Bahauddin in a private complaint titled as Fateh Muhammad v. Qalab Abbas & 3 others for the offences under Sections 302,324,337-F (i),148 & 149 PPC, which has arisen out of FIR No.192/2017 dated 22.05.2017 registered under Sections 302,324,337-F(i), 148 & 149 PPC at Police Station Miana Gondal. Trial court vide judgment dated 29.02.2020 while acquitting the aforesaid two co- accused convicted and sentenced the appellants as under:- 1.Qalab Abbas (appellant)
(i).Under Section 302(b) read with Section 34 PPC to suffer death sentence as to'zir on two counts.
He was also directed to pay compensation of Rs.10,00,000/- in terms of Section 544-A, Cr.P.C. to the legal heirs of both deceased Umar Hayat and Tahir Imran again on two counts and in default of payment of compensation to undergo simple imprisonment for six months.
(ii). Under Section 324 read with Section 34 PPC to suffer rigorous imprisonment for 07-years along with fine of Rs.50,000/- and in default whereof to further undergo simple imprisonment for six months.
(iii). Under Section 337-F(i) read with Section 34 PPC to suffer rigorous imprisonment for 01-year along with payment of Daman of Rs.100,000/- to injured Mazhar Iqbal and in default whereof to further undergo simple imprisonment for six months.
2.Amjad Pervaiz (appellant)
(i).Under Section 302(b) read with Section 34 PPC to suffer imprisonment for life as to'zir on two counts. He was also directed to pay compensation of Rs.10,00,000/- in terms of Section 544-A, Cr.P.C. to the legal heirs of both deceased Umar Hayat and Tahir Imran again on two counts and in default of payment of compensation to further undergo simple imprisonment for six months.
(ii). Under Section 324 read with Section 34 PPC to suffer rigorous imprisonment for 07-years along with fine of Rs.50,000/- and in default whereof to further undergo simple imprisonment for six months.
(iii). Under Section 337-F(i) read with Section 34 PPC to suffer rigorous imprisonment for 01-year along with payment of Daman of Rs.100,000/- to injured Mazhar Iqbal and in default whereof to further undergo simple imprisonment for six months.
All the sentences were ordered to run concurrently and benefit of Section 382-B Cr.P.C. was also extended to both the convicts.
Challenging their convictions and sentences, Qalab Abbas & Amjad Pervaiz (appellants) filed two separate appeals i.e. Criminal Appeal No.15460 of 2020 & Criminal Appeal No.15997 of 2020 respectively, whereas Fateh Muhammad (complainant) through his son Nazam Hussain filed PSLA No.17975 of 2020 against the acquittal of Umar Hayat & Faheem Ashraf (respondents No.2 & 3).
Likewise, trial court forwarded a reference which was numbered as Murder Reference No.67 of 2020 under Section 374 Cr.P.C. to seek confirmation or rejection of the death sentence imposed on the convict, Qalab Abbas. All the three matters are being decided through this single judgment.
2. Precisely stated the facts of the prosecution case as unfolded by Fateh Muhammad in FIR (Exh.CW.3/A) are that he was resident of Bar Mussa where after purchasing land he had constructed a house and even the street is owned by him. On 22.05.2017 at about 11:00 a.m., when the complainant-party was there to fix the pipe for the supply of the drainage-water in the street, Qalab Abbas and his co-accused stopped them for doing so due to which a trifle dispute took place between the parties, however the same was got patched up due to the intervention of respectables of the area. On the same day, at about 6:20 p.m. when the complainant along with Umar Hayat, Tahir Imran and Nazim Hussain was fitting pipe in Bosal Sukha Street, Qalab Abbas, Pervaiz son of Muhammad Hussain, Pervaiz son of Sardar Ali equipped with firearms, Umar Hayat empty handed and four unknown accused emerged on the scene. The accused raised Lalkara to the effect that Umar Hayat and others be taught a lesson for fitting the pipe. Qalab Abbas fired shot from his weapon which hit Umar Hayat beneath the right armpit, Pervaiz son of Sardar fired a shot from his weapon which landed Umar Hayat the right side of chest. Qalab Abbas again fired shot which landed Tahir Imran at the left flank. Pervaiz son of Muhammad Hussain fired shot which landed at the left bicep of Tahir Imran. Qalab Abbas fired shot which landed at the left side of chest of Umar Hayat. Pervaiz son of Muhammad Hussain fired shot which hit at the left thumb of Mazhr Iqbal. The unknown accused while pointing their weapons towards the complainant-party continued raising Lalkaras that if anybody came near he would also be done to death. Umar Hayat and Tahir Imran after being injured fell on the ground. Upon the hue and cry of the complainant party, many men and women attracted to the spot. The complainant and Nazim Hussain PW took Umar Hayat, Tahir Imran and Mazhar to DHQ Hospital Mandi Bahauddin. Umar Hayat upon reaching the hospital succumbed to the injuries while Tahir Imran was referred to ABS Hospital, Gujrat.
3. On 22.05.2017 Sajjad Azam SI (CW.8) was present along with other police officials at Miana Gondal Chowk where Fateh Muhammad (complainant) presented an application which was sent to Police Station through Zafar Iqbal 305/C for the registration of FIR after incorporating necessary proceedings. Tahir Imran injured was dispatched to DHQ Hospital Mandi Bahauddin under the escort of Falak Sher 767/HC for medical treatment/examination. Subsequently, he visited THQ Hospital Malakwal and prepared injury statement (CW.7/A), inquest report (CW.7/B), application for postmortem examination (CW.7/C) and dispatched the dead body of Umar Hayat under the escort of Munawar Iqbal 1001/C for autopsy. Meanwhile, the complainant again appeared before Sajjad Azam SI and presented application nominating Faheem Ashraf as one of the accused mentioned in the FIR as unknown. Thereafter, he visited the place of occurrence, drafted unscaled site plan (Exh.CW.7/D), secured blood stained earth and two crime empties of .12 bore gun through memos Exh.PE & Exh.PF respectively. He also prepared injury statement (CW.7/E) of Mazhar Iqbal and dispatched him to THQ Hospital Malakwal through Shahid Imran 806/C for medical examination.
On 29.05.2017 he after the receipt of information regarding the death of Tahir Imran reached at THQ Hospital Malakwal, inspected the dead body, prepared injury statement (Exh.CW.7/G), inquest report (Exh.CW.7/H), drafted application for postmortem examination (Exh.CW.7/J) and entrusted the dead body to Munawar Iqbal 1001/C for autopsy. He joined the accused Umar Hayat, Pervaiz Akhtar, Amjad Pervaiz and Faheem with investigation who were on pre-arrest bail. He also got issued proclamation of accused Qalab Abbas from the concerned Area Magistrate on 01.07.2017 and on 17.07.2017 he was transferred from HIU Circle Malkwal.
4. Thereafter the investigation of the case was entrusted to Saqib Shahzad SI (CW.10) who associated the complainant and PWs in investigation and on 19.07.2017 deferred the arrest of accused Umar Hayat and Pervaiz Akhtar (late). On 13.08.2017 he arrested Qalab Abbas, Amjad Pervaiz and Faheem Umar. On 27.08.2017 Qalab Abbas made disclosure and in pursuance thereof led to the recovery of Kalashnikov (P.9) which was taken into possession through memo Exh.PH. On the same day, Amjad Pervaiz also got recovered Kalashnikov (P.11) which was secured vide memo Exh.PI. He after complying with all the codal formalities submitted report under Section 173 Cr.P.C. against Qalab Abbas, Amjad and Faheem through concerned SHO.
5. Being dissatisfied with the mode of investigation, Fateh Muhammad complainant filed complaint (Exh.PA) upon which the trial was held. During trial, prosecution in order to prove its case against the appellants and their co-accused produced Dr.Farrukh Mehmood (PW.1) & Dr.Nasir Waqar (PW.4) who furnished the medical evidence, Nazim Hussain (PW.2) & Mazhar Iqbal (PW.3) entered appearance in the witness box as witnesses of ocular account. Trial court also examined ten CWs, out of whom Sajjad Azam SI (CW.8) & Saqib Shahzad SI (CW.10) investigated the case. The remaining CWs were more or less formal and acted according to the law to aid and support the investigation.
6. Dr.Farrukh Mehmood (PW.1) on 22.05.2017 at about 11:55 p.m. conducted the autopsy of Umar Hayat and noted the following injuries:- Injury No.1.A: 1 cm x 1 cm firearm injury wound with inverted margins at mid axillary line of left side at the level of 8th 9th ribs. Blackening present (entry wound).
Injury No.1.B: 4 cm x 2 cm firearm wound with everted margins at right side of mid axillary at the level of 7th 8th ribs (exit wound).
Injury No.2: 1 cm x 1 cm firearm injury wound at front of chest 3 cm right laterally from midline 6 cm below the right nipple. Blackening present involving only skin. Injury No.3: 1 cm x 1 cm firearm injury wound at front of chest 10 cm left latterly 6 cm below the left nipple.
Blackening present involving skin.
According to the opinion of the doctor, the death occurred due to firearm injury No.1.A and 1.B leading to haemorrhage shock, causing cardio-pulmonary arrest. The doctor described the duration between injuries and death within 30-minutes to 1 1/2 hour and between death and postmortem within 5 to 6 hours.
Dr. Farrukh Mehmood on 29.05.2017 at about 10:25 p.m. also conducted the postmortem examination of Tahir Imran and observed the following injuries:- Injury No.1.A: Firearm injury wound within healing process on the outer side of left arm about 5 cm above the left elbow joint.
Injury No.1.B: Firearm injury wound within healing process on the medial aspect left arm 11 cm above the left joint. Both of above two wounds corresponding injury No.1.A and 1.B of MLR dated 22.05.2017.
Injury No.2.A: Firearm injury wound within healing process at mid axillary line 15 cm below two axilla over left side.
It is accompanied by a stitched wound for surgical drainage tube 2 cm above the firearm injury wound.
Injury No.2.B: Firearm injury wound at back of right side 8 cm below right scapula within healing process measuring 3 cm x 1.5 cm both of above wounds corresponding injury No.2.A, 2.B of MLR dated 22.05.2017.
The doctor opined that the death occurred due to cumulating effect of firearm injury causing damage to vital organs leading to surgical intervention and failure of patient revival. The doctor described the duration between injuries and death within 7-days and between death and postmortem within 4 to 5 hours.
7. After the conclusion of prosecution evidence, Qalab Abbas & Amjad Pervaiz (appellants) were examined under section 342 Cr.P.C. during which they were asked the questions arising out of the prosecution evidence but they denied almost all those questions while pleading their innocence and false implication with the case. Appellants neither opted to make statement under Section 340(2), Cr.P.C. nor produced any evidence in their defence. On the conclusion of trial, Qalab Abbas & Amjad Pervaiz (appellants) were convicted and sentenced as afore-stated, hence the instant criminal appeals, PSLA and murder reference.
8. It is contended on behalf of the appellants that there is a delay of about three and half hours in reporting the incident to police for which no plausible explanation has been offered by the prosecution.
The eyewitnesses who appeared before the trial court in support of the ocular account are chance witnesses, thus their statements cannot be relied upon for maintaining the convictions awarded to the appellants. The eyewitnesses made dishonest improvements in order to bring the case of the prosecution in line with the medical evidence. The medical contradicts the ocular account. The recovery of Kalashnikovs affected at the instance of the appellants was foisted upon them just to strengthen the weak prosecution case. The motive set out in the FIR remained unproved throughout the whole trial. In these circumstances, learned counsel argued that the convictions and sentences awarded to the appellants are liable to be set-aside warranting their clean acquittal.
9. On the other hand, learned Deputy Prosecutor General well assisted by learned counsel for the complainant submitted that the matter was reported to the police within a reasonable time. The eyewitnesses properly explained their presence at the spot and they while appearing before the trial court narrated the stance of the prosecution in a very natural manner. The medical evidence is in line with the ocular account. The prosecution also sought corroboration from the recovery of Kalashnikovs at the instance of the appellants as well as duly proved motive. It was thus prayed that the convictions and sentences awarded to the appellants be maintained.
10. We have gone through the case file, heard pro and contra arguments of the learned counsel for the parties well assisted by the Deputy Prosecutor General and perused the record.
11. It evinces from minute perusal of the record that the case in hand has emerged from an unfortunate incident which took place on 22.05.2017 at about 6:20 p.m. within the territorial jurisdiction of Police Station Miana Gondal. During the occurrence two persons, namely Umar Hayat and Tahir Imran lost their lives and besides that, another person namely Mazhar Iqbal (PW.3) statedly received a firearm injury on his right thumb. In the FIR (Exh.CW.3/A), the allegation of committing the crime was pointed towards a bunch of four nominated accused, namely, Qalab Abbas, Pervaiz son of Muhammad Hussain, Pervaiz son of Sardar Ali and Umar Hayat, whereas four unknown persons were also implicated in the case, however, out of them Fateh Muhammad (complainant) by filing an application on 22.05.2017 involved only accused Faheem who allegedly was standing at the time of occurrence while having weapon pointing towards the complainant- party. Out of the afore-said accused, Qalab Abbas (appellant) and Amjad Pervaiz son of Muhammad Hussain (appellant) were handed down guilty verdict, whereas accused Umar Hayat, who was ascribed the role of raising Lalkara and Faheem Ashraf who was standing at the place of occurrence while having weapon pointing towards the complainant-party, earned acquittal from the trial court against whom Petition for Special Leave to Appeal No.17995 of 2020 was filed by Fateh Muhammad (complainant). While adverting to the merits of the case, we have noted that during trial the tale of crime was knitted by two eyewitnesses, namely, Nazim Hussain (PW.2) and Mazhar Iqbal (PW.3). According to them, on 22.05.2017 at about 6:20 p.m., they along with complainant-Fateh Muhammad, Umar Hayat and Tahir Imran were fitting drainage pipe in the street. In the meantime, Qalab Abbas, Amjad Pervaiz, Pervaiz Akhtar, Faheem along with three unknown accused equipped with firearms and Umar Hayat empty handed arrived there. Accused Umar Hayat exhorted to the effect that Umar Hayat (deceased) and others be taught a lesson for fitting the drainage pipe, upon which Qalab Abbas fired shots from his weapon which hit beneath the left armpit and left side of chest of Umar Hayat and at the left flank of Tahir Imran. Amjad Pervaiz also fired from his weapon which hit Umer Hayat on the right side of his chest and landed at the left bicep of Tahir Imran and on the right thumb of Mazhar Iqbal.
12. Before marching any further it is noted that the distance between the place of occurrence and Police Station Miana Gondal is 04-kilometers. We have also observed that one of the eyewitnesses, namely Nazim Hussain (PW.2) during cross-examination specifically admitted that cell No.0344- 4973803 was in the use of his father Fateh Muhammad (complainant). Therefore, immediately after the incident the matter could conveniently be reported to the police by the complainant through his mobile phone. However, we have noticed that the information regarding the incident was imparted to the police by the complainant at 9:30 p.m. on 22.05.2017 i.e. after the delay of about 3-hours and 10-minutes of the incident by submitting a written application before Sajjad Azam SI (CW.8) at Miana Gondal Chowk. It also unveils from the perusal of the record that Tahir Imran in injured condition was shifted to DHQ Hospital Mandi Bahauddin at 7:45 p.m. The perusal of MLC (Exh.PJ) of Tahir Imran reveals that he was brought to the hospital by Falak Sher 767/HC. In this way, it can easily be derived that the matter had already been brought to the notice of police much before 7:45 p.m. but the FIR was chalked out at 9:45 p.m. In this view of the matter, FIR (Exh.CW.3/A) in this case has been chalked out with a considerable delay and that too after due consultation and deliberation. Thus, a cautious approach ought to be adopted by the Courts for evaluating the evidence especially in a case of capital charge. Reliance is placed upon the case reported as Muhammad Jahangir and another v. The State and others (2024 SCMR 1741), wherein the Supreme Court of Pakistan held as under: - ".......perusal of record reveals that FIR was lodged after an unexplainable delay of 3 hours despite the fact that the distance of the police station from the place of occurrence was 5 km. The time of occurrence is around 05:00/05:30 pm and the matter is reported at 08:30 p.m. The complainant had a bike that he used to go to the police station. This delay has not been encountered through plausible explanation by the prosecution."
13. It is further evident from the perusal of record that at the time of registration of FIR (Exh.CW.3/A)
Fateh Muhammad (complainant) alleged that Qalab Abbas (appellant) fired a shot from his weapon which hit Umar Hayat at his right armpit, whereas on the same day he by making a supplementary statement changed the seat of injury from right armpit to left armpit which later on proved to be fatal and took the life of Umar Hayat as is obvious from the statement of Dr.Farrukh Mehmood (PW.1). Admittedly, complainant Fateh Muhammad died prior to recording of his statement and said FIR was produced as Exh.CW.3/A but he was not cross-examined in order to explain the afore-mentioned contradiction. In such eventuality, the FIR (Exh.CW.3/A) cannot be used as a corroborative piece of evidence for upholding the conviction and sentence of the appellants especially in the case of capital charge. In a recent judgment reported as Muhammad Ramzan v. The State (2025 SCMR 762), the Supreme Court of Pakistan while dealing with the matter in issue held as under:- "It is settled law that FIR by itself is not a substantive piece of evidence unless its contents are affirmed on oath in the witness box by its maker and its maker is subjected to the test of cross- examination. In view of Articles 40 and 153 of QSO, FIR being a previous statement can only be used for contradicting its maker but unless the same is not (Sic) proved through its maker, cannot be used as a substantive piece of evidence in favour of the prosecution's case."
14. As stated above Fateh Muhammad (complainant) died after filing the private complaint (Exh.PA), therefore, the ocular account in this case was furnished by Nazim Hussain (PW.2) and Mazhar Iqbal (PW.3). Both the eyewitnesses while appearing before the trial court made material contradictions regarding the place of occurrence, the nature of injuries received by deceased Umar Hayat and Tahir Imran as well as the manner/mode in which the incident occurred. In this regard, we have noted that the role assigned to Qalab Abbas (appellant) by both the eyewitnesses during the course of trial was that he fired a shot from his weapon which hit Umar Hayat (deceased) at the left armpit. Such stance of both the PWs was confronted with their statements recorded under Section 161 Cr.P.C., wherein it was not so recorded rather the right armpit was mentioned. The improvement so made by both the eyewitnesses is to bring the case of prosecution in line with the medical evidence. Through such dishonest improvement they compromised their integrity which left a question mark upon the intrinsic worth of the depositions made by them. The approach of the Supreme Court of Pakistan qua the material dishonest improvement is consistently against the maker of such statement, whereby the fresh facts introduced during trial are discarded from consideration. Reference in this context is made to the case reported as Muhammad Nasir Butt and 2 others v. The State and others (2025 SCMR 662) wherein the Supreme Court of Pakistan held as under:- "In their statements recorded at the trial, the complainant Zahid Amjad (PW-3), Muhammad Hamid Amjad (PW-4) and injured Muhammad Majid Amjad (PW-10) have made dishonest improvements for assigning specific role to each accused, which creates serious doubt about the veracity of their testimony and it is not safe to place reliance on their statements."
We have further observed that the prosecution also claimed that since Mazhar Iqbal (PW.3) during the occurrence also received a firearm injury at his right thumb, hence the said injury is considered as stamp of his presence at the place of occurrence. In this context, we have observed that Umar Hayat died immediately on reaching the hospital, whereas two injured namely Tahir Imran and Mazhar Iqbal (PW.3) were shifted to DHQ Hospital, Mandi Bahauddin for treatment by complainant party itself. However, it did not come in the statements of the eyewitnesses that how and through which means they shifted the victims to hospital for medical treatment. Nazim Hussain (PW.2) deposed that he along with Fateh Muhammad (complainant) put the injured Umar Hayat, Tahir Imran and Mazhar Iqbal in the vehicle and reached DHQ Hospital Mandi Bahauddin. Due to the injuries Umar Hayat passed away at the hospital, whereas Tahir Imran was referred to Aziz Bhatti Shaheed Hospital, Gujrat by the doctor. Here we are astonished to observe that Nazim Hussain (PW.2) nowhere mentioned that Mazhar Iqbal (PW.3) was also examined at DHQ Hospital Mandi Bahauddin by the doctor who issued his MLC in proof of the injury received by him at the spot.
During cross-examination Nazim Hussain (PW.2) improved his earlier stance and deposed that he and his father shifted Umar Hayat and Tahir Imran deceased from the spot and three injured were shifted in an ambulance which by chance arrived in the village for dropping a patient. Nazim Hussain (PW.2) further disclosed the fact that his clothes as well as that of his father were stained with blood however the police did not take into possession their clothes to ensure the above said fact. Nazim Hussain (PW.2) took the stance that they reached at DHQ, Hospital Mandi Bahauddin at 7:30/7:45 p.m. on the day of occurrence.
Contrarily, Mazhar Iqbal injured (PW.3) did not support the stance of Nazim Hussain (PW.2) and uttered not a single word as to what happened to both the injured and how they along with him were shifted to hospital and by whom. Mazhar Iqbal (PW.3) further confused the stance of prosecution by stating during cross-examination that he remained at DHQ Hospital Mandi Bahauddin for about 11/2 hours where he was checked by the doctor, but in the same breath deposed that he was checked at THQ Hospital Malakwal by the doctor in the company of Nazim Hussain (PW.2). It is further crystal clear from the evidence of Sajjad Azam SI (CW.8) that Fateh Muhammad (complainant) appeared before him at 09:30 p.m. at Miana Gondal Chowk with the application for the registration of formal FIR, which was sent to the Police Station through Zafar Iqbal 305/C. Meanwhile he called Falak Sher 767/HC and was handed over the person of Tahir Imran injured for his medical examination, who escorted him in injured condition along with police papers to DHQ Hospital Mandi Bahauddin. In this way, if the injured was shifted to DHQ Hospital, Mandi Bahauddin earlier at 07:30/07:45 p.m. by complainant party itself then the MLC should not have contained the name of Falak Sher who produced the injured for MLC. Moreover, in the MLC (Ex.PJ) name of the injured has been mentioned as Tahir Iqbal instead of Tahir Imran and the same also lacks the mentioning of history about nomination of the accused who committed the occurrence with him. In this way, both the claims of complainant regarding shifting of injured at DHQ Hospital Mandi Bahauddin by complainant party immediately after the occurrence and by IO/CW.8 stood falsified by the MLC (Exh.PJ) of Tahir Imran which contained the fact that he was produced for MLC by Falak Sher 767/HC before doctor at DHQ Hospital Mandi Bahauddin at 07:45 p.m.
From the perusal of record this Court cannot ignore that Mazhar Iqbal (PW.3) failed to establish the injury on his person through cogent and reliable evidence. In this regard, it is observed that neither any MLC of Mazhar Iqbal was produced during the course of trial nor oral evidence established the place where he was examined by the doctor. Moreover, no doctor was examined in proof of the injury that he sustained on his thumb at the hands of Amjad Pervaiz. Similarly, Sajjad Azam SI (CW.8) categorically admitted during cross-examination that the story of the prosecution to the extent of sustaining injury by Mazhar Iqbal was found not correct. The relevant portion of cross- examination of Sajjad Azam SI (CW.8) on account of its relevancy is mentioned below:- "The version of the complainant to the extent of Mazhar injured with reference to the nature of firearm injury was not supported by the medical evidence."
Mazhar Iqbal (PW.3) during cross-examination stated that he firstly met the police at Malakwal in the hospital after the occurrence at about 12:00 p.m. (Noon) on 22.05.2017, whereas time of occurrence was claimed by the prosecution as 06:20 p.m. on 22.05.2017. Conversely, the postmortem report (Exh.PB) contained the time of death of Umar Hayat deceased as 6:20 p.m. who as per opinion of Dr. Farrukh Mehmood (PW.1) died within 30 minutes to 11/2 hour of the occurrence.
In this scenario, the time of occurrence is highly doubtful and leads to the conclusion that the incident did not take place as alleged by prosecution.
During the trial Mazhar Iqbal (PW.3) was also found to be a chance witness as he failed to justify his presence at the time and place of occurrence. Mazhar Iqbal (PW.3) during cross-examination admitted that he was not resident of village Bar Mussa having no residence or land or business near or around the place of occurrence. Relevant portion of cross-examination of Mazhar Iqbal (PW.3) is reproduced hereunder:- "I have no residence or land or business near or around the place of occurrence. I have not mentioned expressly any reason of my arrival at village Bar Musa in my statement made before the police."
During cross-examination Nazim Hussain (PW.2) also admitted that Mazhar Iqbal (PW.3) was not accompanying him in the hospital. Besides that, the non-presence of Mazhar Iqbal (PW.3) at the place of occurrence is also found from the evidence of Nazim Hussain (PW.2). The relevant portion of cross-examination of Nazim Hussain (PW.2) is reproduced hereunder:- "Mazhar PW is not resident of Bar Musa. Mazhar PW is not having any house or dera or business at Bra Musa. I have not mentioned reason of arrival of Mazhar PW in the Bar Musa in the statement made before the police as well as in the statement made before the court."
Furthermore, as per record the dead body of Umar Hayat (deceased) was identified by Zafar Iqbal and Shaukat Iqbal at THQ Hospital Malakwal. Both these persons were neither cited in Challan case nor produced in the complaint by the complainant party. Perusal of the record depicts that the occurrence was statedly witnessed by three PWs, namely Fateh Muhammad (complainant), Nazim Hussain and Mazhar Iqbal but the inquest report (Exh.CW.7/B) did not contain the name of any of these persons. Had any eyewitness been present in the Hospital, the Investigating Officer/Sajjad Azam SI (CW.8) would have incorporated his name and associated him to identify the dead body.
In these circumstances, the presence of both the alleged eyewitnesses is highly doubtful who are not proved to be natural witnesses.
We have further noticed that the complainant party miserably failed to establish that why the injured were not shifted to RHC Hospital Miana Gondal which was closer to the place of occurrence and situated at a distance of 4/5 kilometers from Bar Mussa. However, they were shifted to DHQ Hospital Mandi Bahauddin which was about 30 kilometers away from the spot. During investigation, the complainant-party also failed to put forth any reason for not shifting the injured to RHC Hospital Miana Gondal. In this regard a relevant portion of cross-examination of Sajjad Azam SI (CW.8) for advantage sake is mentioned as under:- "The complainant party has not mentioned reasons for not bringing the injured persons in RHC hospital Miana Gondal and THQ Hospital Malakwal during investigation with me. RHC hospital Miana Gondal is at the distance of about 4/5 kilometers from bar Musa village whereas THQ hospital Malkwal is about 15 kilometers from bar Musa village. DHQ Hospital Mandi Bahauddin is at the distance of 30 kilometers from Bar Musa village."
So far as the place of occurrence in this case is concerned, Nazim Hussain (PW.2) during cross- examination took a firm stance that the occurrence took place at a thoroughfare and denied the suggestion as below:- "It is incorrect to suggest that no occurrence of this case took place in front of our house."
The same position was reiterated by Mazhar Iqbal (PW.3) who deposed that the occurrence of this case took place in front of the house of Umar Hayat (deceased) and Fateh Muhammad (complainant). However, the Investigating Officers, namely Sajjad Azam SI (CW.8) and Saqib Shehzad SI (CW.10) contradicted the stance of both the eyewitnesses. Sajjad Azam SI (CW.8) categorically stated during the cross-examination that he had not shown the place of occurrence as in front of the house of the complainant, rather the incident occurred on an under-construction road. Since this is an important aspect, hence an extract from the cross-examination of Sajjad Azam SI (CW.8) is mentioned hereunder:- "I have not shown the occurrence of this case in front of door of the house of complainant. The occurrence took place on the under construction road which leads to Bar Musa Adda from north side and from south side, it leads to village Bar Musa. Rough site plan put before me is also formulated in my hand. I have inspected the place of occurrence keenly. The place of occurrence is surrounded by populated area of the village."
Similarly, Saqib Shahzad SI (CW.10) stated during cross-examination that according to the site plan available on the record the place of occurrence was not shown in the alley street in which the complainant s house was situated.
15. The presence of both the eyewitnesses also stands falsified from the fact that as per complaint after the occurrence the complainant raised hue and cry upon which the men and women gathered at the spot. However, no person of the locality supported the stance of complainant and Nazim Hussain (PW.2) during his cross-examination deposed that:- "I know Saif Ullah Mahajar. House of said Saif Ullah Mahajar is situated near the place of occurrence. Said Saif Ullah Mahar, Sana Ullah Mahajar, Iqbal s/o Manik, Azam, Riaz and Nawaz did not appear before the police during investigation in support of our version. The road of alleged place of occurrence is busy road. No person of the locality and any passerby appeared before the police in support of our version during the investigation".
Similarly, Sajjad Azam SI/Investigating officer (CW.8) during cross-examination deposed that:- "The place of occurrence is surrounded by the populated area of the village. The immediate neighborers of the place of occurrence did not appear before me in support of version of the complainant party. The complainant opted the version in the complaint that after hearing hue and cry many male and female of the village gathered there. Except the complainant and PWs, no other person of the locality claimed before me that he/she witnessed the occurrence".
Likewise, Saqib Shahzad SI (CW.10) further supported the stance of Sajjad Azam (CW.8) by admitting that:- "I perused the complaint wherein the complainant mentioned that many male and females of the village gathered at the spot. Any person of the village did not claim before me that he/she witnessed the occurrence".
16. As per record the blood stained earth of both the deceased was taken into possession from the place of occurrence vide Exh.PE and reports of PFSA (Exh.PJ & Exh.PK) although contained the fact that both samples of soil secured from the spot were identified as human blood, yet we have noted that samples of soil were deposited in the office of PFSA on 29.05.2017, whereas the evidence of Moharrar (CW.5) who handed over the parcels stated to be blood stained earth and IO (CW.8) who deposited the same in PFSA are in absolute negation with each other. Muhammad Asif Head Constable (CW.5) deposed that on 31.05.2017 he handed over the sealed parcel of blood stained earth to Sajjad Azam SI (CW.8) for onward transmission to the office of PFSA, Lahore. On the other hand, Sajjad Azam SI (CW.8) deposed that on 29.05.2017 he deposited the parcel of blood stained earth in the office of PFSA. In the given circumstances as emerged from the evidence, the parcel of blood stained earth cannot be considered as related to the case in hand. Thus, the positive reports (Exh.PJ & Exh.PK) of PFSA cannot be used as a corroborative piece of evidence against the appellants.
17. The motive as alleged behind the registration of the incident was that on the day of incident at about 11:00 a.m., the complainant party was fixing pipe in the street for the supply of drainage where Qalab Abbas and other accused stopped the complainant party not to fix the pipe and a petty dispute took place inter se the parties. The said dispute was got patched up by the respectables and again at 6:20 p.m. when the complainant party was fixing pipe the incident in question took place. In this regard, we have noted that both the eyewitnesses in their respective examination-in-chief deposed in support of the motive. However, Nazim Hussain (PW.2) at the time of his cross-examination admitted that during investigation the police did not take into possession any Kassi, Khudal, sand or concrete. He further showed ignorance as to whether the pipe was taken into possession by the police. Similarly, Investigating Officer, namely, Sajjad Azam SI (CW.8) during cross-examination deposed that he had not collected any pipe from the place of occurrence nor he showed any pipe at the place of occurrence in site plan. He further stated that he has not taken into possession any Kassi, Khudaal, etc. from the place of occurrence. Admittedly, the Investigating Officer did not record the statement of any mason or labourer at the place of occurrence and the complainant party has also not produced any construction material or any other thing linked with the construction before him. The aspect highlighted hereinabove clearly demonstrates that the prosecution failed to prove the motive. It is well settled that once the motive is set up by the prosecution and the same is not proved, the prosecution shall suffer. Reliance in this context may be placed upon the case reported as Sarfraz and another v. The State (2023 SCMR 670) wherein the Supreme Court of Pakistan held as under:- "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."
18. As gathered from record, as per case of prosecution Qalab Abbas and Amjad Pervaiz (appellants) were arrested on 13.08.2017 and they led to the recovery of Kalashnikovs (P.9 & P.11) on 27.08.2017. Both the weapons were dispatched to PFSA for analysis but only the weapon (P.9) recovered from Qalab Abbas (appellant) matched with two cartridge cases recovered from the spot as is evident from the PFSA report (Exh.PL). In this regard, we have noted that after the occurrence, Sajjad Azam SI (CW.8) visited the spot and seized two crime empties of .12 bore gun through memo Exh.PF but he did not mention in his statement that as to when he handed it over to Moharrar for safe custody and only mentioned during examination-in-chief that on his return to police station he deposited the case property with Moharrar. Muhammad Ashraf Moharrar (CW.5) cleared this fact while appearing before the trial court that the case property taken into possession on 22.05.2017 was handed over to him on 23.05.2017 for safe custody in Malkhana. He further deposed that on 31.05.2017 the parcel said to contain crime empties was handed over to Sajjad Azam SI for its onward transmission to PFSA, Lahore. This fact was absolutely nullified by Sajjad Azam SI (CW.8) who deposed that he deposited the parcel said to contain crime empties of .12 bore gun on 29.05.2017 along with parcel of blood stained earth i.e. two days prior to its handing over to him by Moharrar. On the other hand, the reports (Exh.PK & Exh.PL) show that the parcels of blood stained earth and that of crime empties were received in the office of PFSA on 29.05.2017. On this score also, the positive report received from the PFSA did not rescue the case of prosecution because the deposited parcels were not the same secured from the crime scene relating to deceased. Reference in this context may be made to the case reported as Kamal Din alias Kamala v. The State (2018 SCMR 577) wherein the Supreme Court of Pakistan discarded the positive report of FSL with the following observation:- "safe custody of the recovered weapon and its safe transmission to the Forensic Science Laboratory had never been proved by the prosecution before the trial court through production of any witness concerned with such custody and transmission."
19. Another limb of the prosecution case to implicate the appellants in this case is the statement (Exh.CW.8/L) of Tahir Imran (deceased) recorded under Section 161 Cr.P.C. on 24.05.2017. Since this statement is canvassed by the prosecution as dying declaration, thus we feel a pressing need to dilate upon it in-depth. Firstly, we have observed that as per stance of Sajjad Azeem SI (CW.8) he for the first time met Tahir Imran (then injured) on 22.05.2017 at about 9:30 p.m. who was handed over to Falak Sher 767/HC to escort him for his medical examination along with police papers to DHQ Hospital. However, he during the course of his evidence miserably failed to justify through cogent explanation why he did not record the statement of Tahir Imran (then injured) on 22.05.2017 when he was stable and fit to make his statement as per law which is evident from the statement of Dr.Nasar Waqar (PW.4) who appeared on behalf of Dr.Falik Iftikhar (died on 01.10.2019) and had prepared MLC (Exh.PJ) of Tahir Iqbal. As per MLC (Exh.PJ), Tahir Imran (injured) was conscious, oriented in time, place and person at the time of his medical examination on 22.05.2017 at about 7:45 p.m. The question why the statement of the injured was not recorded on 22.05.2017 is shrouded in mystery and makes the case of prosecution highly doubtful. During the course of evidence, Sajjad Azam SI (CW.8) stated that he recorded the statement of Tahir Imran under Section 161 Cr.P.C. on 24.05.2017. Contrarily, we have perused the application (Exh.CW.7/F) drafted by Sajjad Azam SI (CW.8) seeking permission from doctor Ahmad, Medical Officer ABS Teaching Hospital Gujrat to record the statement of Tahir Imran and noted overwriting whereby date `23.05.2027' was converted to `24.05.2017'. However, neither Dr.Ahmed was cited as witness in the calendar of witnesses nor produced before the court in order to prove the fact that Tahir Imran was in fit condition to make statement as per law. Secondly, we have perused the statement of alleged dying declaration, the perusal of which unveils that Sajjad Azam SI (CW.8) reproduced the complaint in verbatim, thus the same in no way be called the statement in natural sense made by a dying person, especially keeping in view the statements of PW.2 & PW.3 who categorically mentioned in their respective statements that due to critical condition of injured Tahir Imran he was referred to Abbasi Shaheed Hospital, Gujrat. Thirdly, statement (Exh.CW.8/L) of Tahir Imran (deceased) is neither having endorsement nor attestation of the medical officer. Fourthly, it is gathered from record that no evidence whatsoever was led to prove that on 24.05.2017 when the statement of Tahir Imran was recorded under Section 161 Cr.P.C. he was having such medical condition so as to narrate a lucid detail of occurrence. We are not oblivious of the fact that dying declaration is admissible under Article 46 of Qanun-e-Shahadat Order, 1984 and if duly proved it can be used for raising superstructure of conviction. However, at the same time we are compelled to observe here that dying declaration only attains acceptability if firstly it is proved to have been made by the deceased; secondly it is free from tutoring; thirdly the maker of such statement was having full control over his faculties so as to make a lucid statement and to exclude all hypothesis that the same was not made by him under whispering of death and fourthly the statement must be attested or endorsed either by a Magistrate or by the medical officer. The provisions of Chapter- XXV Rule 21 of the Police Rules, 1934 are being reproduced hereunder:- "25.21. Dying declarations.--- (1) A dying declaration shall, whenever possible, be recorded by a Magistrate.
(2) The person making the declaration shall, if possible, be examined by a medical officer with a view to ascertaining that he is sufficiently in possession of his reason to make a lucid statement.
(3) If no magistrate can be obtained, the declaration shall, when a gazetted police officer is not present, be recorded in the presence of two or more reliable witnesses unconnected with the police department and with the parties concerned in the case.
(4) If no such witnesses can be obtained without risk of the injured person dying before his statement can be recorded, it shall be recorded in the presence of two or more police officers.
(5) A dying declaration made to a police officer should, under section 162, Code of Criminal Procedure, be signed by the person making it."
In the above backdrop, we have eloquently perused the evidence of dying declaration and found it to be legally deficient, not even backed by the medical officer in any respect. Due to the foregoing reasons, without any reluctance the canvassed dying declaration of Tahir Imran (deceased) is destined to be discarded. While holding so, reliance can be placed upon the case reported as Mst.
Zahida Bibi v. The State (PLD 2006 Supreme Court 255) wherein the Supreme Court of Pakistan held as under:- "This is an admitted fact that the statement of the deceased was not recorded by the Sub- Inspector of police in hospital in presence of the doctor and further neither any member of the hospital staff was associated at the time of recording the statement nor it was got verified by any official of the hospital that the statement was actually made by the deceased."
20. For what has been discussed above, the prosecution has miserably failed to prove its case against the appellants beyond scintilla of any doubt. It needs no mention that if any doubt arises from the prosecution's case, no reason exists to withhold its benefit on the ground that the case is of a heinous nature. Consequently, we allow Criminal Appeal No.15460 of 2020 & Criminal Appeal No.15997 of 2020 while giving the benefit of the doubt in favor of Qalab Abbas and Amjad Pervaiz (appellants). Their convictions and sentences are set aside, and they stand acquitted of the charge. Qalab Abbas and Amjad Pervaiz (appellants) are in custody; be released forthwith if not required to be detained in any other criminal case. Resultantly, Murder Reference No.67 of 2020 is answered in the NEGATIVE, and the death sentence awarded to Qalab Abbas (convict) is NOT CONFIRMED.
21. As far as PSLA No.17975 of 2020 against the acquittal of Umar Hayat & Faheem Ashraf (respondents No.2 & 3) is concerned, it has been noted that Faheem Ashraf (respondent No.3) was not nominated in FIR (Exh.CW.3/A) and subsequently he was involved with the occurrence through supplementary statement during the course of investigation. Similarly, no injury was attributed to Faheem Ashraf and Umar Hayat (respondents No.2 & 3), besides that no overt act except of raising Lalkara was attributed to them. During the course of investigation, no crime weapon was recovered from the possession of both the respondents. Furthermore, no previous enmity has been brought on record by Fateh Muhammad (complainant) on the basis of which, the respondents could have committed the crime in question. The respondents throughout professed their innocence and also during the course of trial and to their extent no incriminating material is available on record, therefore, they were rightly acquitted by the trial court while extending the benefit of doubt. In this backdrop, the impugned judgment is perused with utmost circumspection but we do not find any reason to differ with the findings arrived at by the learned trial Court for the acquittal of respondents because an accused on the judgment of acquittal acquires a verdict of innocence which is to be disturbed in exceptional and extraordinary circumstances. In this regard, reliance is placed on cases reported as Haji Amanullah v. Munir Ahmad and others (2010 SCMR 222), Jehangir v. Aminullah and others (2010 SCMR 491) and Bashir Ahmad v. Fida Hussain and others (2010 SCMR 495). In the former cited judgment, the following observation was given:- "After having gone through the entire evidence as mentioned hereinabove which is vague, sketchy and partisan has rightly been discarded on the basis whereof the question of any conviction does not arise. It is well-settled by now that in an appeal "the Court would not interfere with acquittal merely because reappraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. If, however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusive and irresistible conclusion; and that too with view only to avoid grave miscarriage of justice and for no other purpose. The important test visualized in these cases, in this behalf was that the finding sought to be interfered with after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous."
22. For what has been discussed above, the instant PSLA having no merits is dismissed.