Sardar Akbar Ali, J:- Saeed Akhtar (appellant) was tried in case F.I.R. No.437, dated 06.11.2021, registered at police station Saddar Attock, District Attock, in respect of offences under sections 302/109/34 PPC and vide impugned judgment dated 12.11.2024, passed by learned Additional Sessions Judge, Attock, he (appellant) has been convicted and sentenced as under:- Under section 302(b) PPC to imprisonment for life as Tazir. He was also ordered to pay Rs.250,000/- to the legal heirs of the deceased as compensation under section 544-A of Cr.P.C. and in default thereof to further undergo six months simple imprisonment.Benefit of section 382-B Cr.P.C was also extended to the appellant.
2. Succinctly stated story of the FIR (Ex.PA) registered on the basis of statement of Mst. Momina Bibi (PW-11) recorded by Atif Hussain, Inspector (PW13) are that she is resident of District Mansehra and now she along with her husband and children is residing at the Dera of Muhammad Ashraf (given up PW) situated in village Surag, Dhok Jhamra, Attock for the last 20/22 years. They used to keep goats. Her nephew, namely Faiz Muhammad son of Gull Amber (PW-9) also used to live with the complainant (PW-11). On 06.11.2021 as per routine complainant's husband, namely Number Khan and nephew Faiz Muhammad (PW9) took goats to government forest and when reached at Partki Point, in the meanwhile at about 11:00 a.m. Saeed Akhtar (appellant) armed with .12 bore gun along with one unknown person, who could be identified by the complainant (PW-11) and her nephew (PW-9) on coming before them and within their view appellant made a straight fire with .12 bore gun (P-6) on the husband of complainant for committing his murder which landed on the neck and front of chest of Number Khan, husband of the complainant, who fell down. Complainant party arranged vehicle and shifted Number Khan to hospital, who succumbed to the injuries.
Motive behind the occurrence was that due to dispute of land earlier one Anwar Zaib lodged hurt case against the deceased thus complainant (PW-11) suspected that Muhammad Sharif, Muhammad Wahab, Haji Qasim, Anwar Zaib, Muhammad Shafiq and Najam-ul-Haq abetted the occurrence.
3. On receipt of information about the occurrence Atif Hussain, Inspector (then SI) (PW-13) reached at DHQ, Hospital, Attock where he recoded oral statement of complainant namely Mst. Momina Bibi (PW-11), inspected the dead body of deceased Number Khan, prepared injury statement (Ex.PO), inquest report (Ex.PP), got conducted post-mortem of dead body of the deceased, transmitted complaint to police station through Muhammad Awais 1032/C (PW-3) for registration of FIR to the Police Station Saddar Attock, recorded supplementary statement of Mst. Momina, complainant (PW-11), took into possession last worn clothes of deceased i.e. Banyan (P-1), Qameez (P-2), Shalwar (P-3) and Shoes (P-4/1-2) along with parcel of envelope sent and sealed by doctor, postmortem report (Ex.PM) and other police papers. Then he proceeded to the place of occurrence, inspected the spot with the help of torches, collected blood stained earth from the place of murder of deceased Number Khan and took the same into possession vide recovery memo (Ex.PD), collected one crime empty of cartridge and took the same into possession vide recovery memo (Ex.PC), attested by Moazzam Khan and Muhammad Awais constables. Anwar Zaib, Muhammad Shafiq and Najam-ul-Haq joined investigation and to their extent separate report under section 173 of Cr.P.C. was submitted. Muhammad Sharif, co-accused joined investigation, who was declared innocent and his name was placed in column No.2 of report under section 173 of Cr.P.C. After adopting all modes of service including proclamation under sections 87/88 of Cr.P.C. Saeed Akhtar appellant, Muhammad Wahab and Haji Qasim, co-accused were declared proclaimed offenders after due course of law; subsequently after withdrawal of pre-arrest bail of the appellant, he was arrested on 06.07.2022, the appellant during investigation led to the recovery of riffle/gun.12 bore and one live bullet (P-6) from an iron box under the beddings in his house, prepared site plan (Ex.PU) of place of recovery, got prepared scaled site plan, sent the case property to the concerned offices, recorded statements of all the witnesses under section 161 Cr.P.C. Dr. Aizaz Afzal (PW-6) conducted autopsy on the dead body of Number Khan, deceased. Ms. Momina Bibi, complainant (PW11) and Fiaz Muhammad (PW-9) furnished ocular account. Rest of the witnesses are formal in nature and would be discussed in later part of this judgment.
4. After completion of investigation by the police, the challan was prepared and submitted before the learned trial Court. The learned trial Court, after observing legal formalities, as provided under the Code of Criminal Procedure, 1898 framed charge against the appellant on 05.10.2022, to which he pleaded not guilty and claimed trial. In order to prove its case, the prosecution produced thirteen witnesses during the trial. The prosecution also produced documentary evidence in the shape of (Ex.PA) to (Ex.PX). The statement of the appellant under section 342 Cr.P.C, was recorded, wherein he denied the allegations leveled against him. The appellant did not opt to appear as his own witness on oath as provided under Section 340(2) of the Code of Criminal Procedure, 1898 in disproof of the allegations leveled against him. However, he produced attested copies of report under section 173 of Cr.P.C. of case FIR No.71, dated 03.04.1992 registered at police station Saddar Attock (Ex.DB) and Nikahnama of Qamar Abbas (Ex.DC).
The learned trial Court vide its judgment dated 12.11.2024, found the appellant guilty, convicted and sentenced him as mentioned and detailed above.
5. Abuzar, ASI submits that complainant was telephonically informed who apprised that her counsel would appear in this case but no one has turned up on behalf of the complainant despite repeated calls. Even otherwise, it is a State case and learned District Public Prosecutor for the State is ready to argue the same, therefore, I proceed to decide the instant appeal after hearing arguments of learned counsel for the appellant, learned District Public Prosecutor for the State and perusing the record.
6. Arguments heard. Record perused.
7. Prosecution story as set forth in Fard Bayan (Ex.PS), on the basis of which the formal FIR (Ex.PA) was chalked out has already been reproduced in para No.3 of this judgment therefore, there is no need to repeat the same.
8. As shall be seen from the narration of above facts, according to the prosecution's perspective the occurrence took place on 06.11.2021 at 11:00 a.m. and was alleged to have been seen by Ms. Momina Bibi, complainant (PW-11) and Faiz Muhammad (PW-9) but the matter was reported to the police on the same day at 08:25 p.m. i.e. with delay of about nine hours and twenty-five minutes, despite the fact that police station was just fifteen kilometers from the place of occurrence. In such a situation if these witnesses were present at the place of occurrence and also witnessed the scene of occurrence then such an inordinate and unexplained delay in lodging the FIR would never have occurred. In the case "Mehmood Ahmed & others vs. the State & another" (1995 SCMR 127), it was observed by the Supreme Court of Pakistan that:- "Delay of two hours in lodging the FIR in the particular circumstances of the case had assumed great significance as the same could be attributed to consultation, taking instructions and calculatedly preparing the report keeping the names of the accused open for roping in such persons whom ultimately the prosecution might wish to implicate".
Similar view has been taken by the Hon'ble Supreme Court of Pakistan in the case of 'Muhammad Nawaz and another vs. The State and others" (2024 SCMR 1731) and "Zafar Ali Abbasi and another Versus Zafar Ali Abbasi and others" (2024 SCMR 1773). Thus, in the facts and circumstances of the instant case, the element of delayed registration of FIR (Ex.PA) is clear indicator of the fact that in fact it was a blind murder and inference can be drawn that the intervening period was consumed in fabricating the prosecution story after the preliminary investigation and the delay was result of deliberation and consultation thus false involvement of the appellant cannot be ruled out.
9. The ocular account of the prosecution was furnished by Ms. Momina Bibi, complainant (PW-11) and Faiz Muhammad (PW-9). Ms. Momina Bibi, complainant (PW-11) is wife of the deceased whereas Faiz Muhammad (PW-9) is her nephew. Both these witnesses have contradicted each other on material aspects of the case and their conduct being close relative of deceased is unnatural because they immediately did not remove Number Khan to hospital to save his life. Both these witnesses of ocular account are residents of District Mansehra. Therefore, these witnesses can safely be termed as chance witnesses and there is plethora of case law on the point that statements of such witnesses may be believed but only when convincing explanation about their presence at the place of occurrence at the relevant time is brought on the record, otherwise, their testimonies would remain as suspect evidence. In this respect I am guided by the case law reported as "Mst. Sughra Begum and another v. Qaiser Pervez and others" (2015 SCMR 1142) wherein the Supreme Court of Pakistan while dealing with a case of chance witness observed as under:- "A chance witness, in legal parlance is the one who claims that he was present on the crime spot at the fateful time, albeit, his presence there was a sheer chance as in the ordinary course of business, place of residence and normal course of events, he was not supposed to be present on the spot but at a place where he resides, carries on business or runs day to day life affairs. It is in this context that the testimony of chance witness, ordinarily, is not accepted unless justifiable reasons are shown to establish his presence at the crime scene at the relevant time. In normal course, the presumption under the law would operate about his absence from the crime spot.
True that in rare cases, the testimony of chance witness may be relied upon, provided some convincing explanations appealing to prudent mind for his presence on the crime spot are put forth, when the occurrence took place otherwise, his testimony would fall within the category of suspect evidence and cannot be accepted without a pinch of salt."
Moreover, both these PWs stated that at the time of occurrence the complainant (PW-11) was having mobile phone with her and that they remained at place of occurrence till 07:00 p.m.
Relevant portions of their statements are reproduced below: Ms. Momina Bibi, complainant (PW-11)
"............I called Ashraf after the occurrence through telephone............"
"............I cannot tell the time when we remained at the alleged place of occurrence. Volunteer stated that we reached at hospital at about 07:00 p.m Faiz Muhammad (PW-9)
".........The complainant Mst. Momina Bibi was having mobile phone with her at the time of occurrence. .........."
".........We remained at the spot till 07:00 pm.........."
The above depositions of the PWs depict their unnatural conduct. It is astonishing that after the occurrence which took place at 11:00 a.m. the said PWs remained at the spot with the dead body till 07:00 p.m. If complainant (PW-11) was having mobile phone at the time of occurrence then she should have immediately make call to 1122 or 15 after the occurrence instead of making call to Muhammad Ashraf (given up PW) and waiting for his commands.
Furthermore, during the cross-examination both the eye-witnesses claimed that they shifted the deceased to the hospital on an ambulance/vehicle but they did not disclose the registration number of the ambulance/vehicle or name of the driver of that ambulance/vehicle which also makes the presence of both these eye-witnesses at the place of occurrence doubtful. Reliance in this respect is placed on case titled "Nadeem alias Kala vs. The State and others" (2018 SCMR 153), "Muhammad Bilal and 2 others v. The State" (2023 YLR 2051) and "Mansab Ali and another v. The State" (2024 P. Cr. LJ 617). It is noteworthy that complainant (PW-13) during her cross- examination deposed that "the dead body was initially shifted out of the forest on a cot as the main road was at a distance from the alleged place of occurrence and a car/vehicle cannot reach at said place" but admittedly neither blood stained clothes of the witnesses nor cot were taken into possession by the Investigation Officer (PW-13) and no explanation in his behalf has been advanced by the prosecution, hence testimonies of complainant (PW-11) and Faiz Muhammad (PW-9) are not only improbable, but also got no support from the record. Reliance in this respect is placed on the case titled "Zafar Ali Abbasi and another Versus Zafar Ali Abbasi and others" (2024 SCMR 1773).
According to their depositions the alleged occurrence took place on 06.11.2021 at 11:00 a.m. in government forest situated near village Surag Salar where they used to reside at the Dera of Ashraf (given up PW). They further deposed in line with the story of FIR (Ex.PA) and Fard Bayan (Ex.PS) that Number Khan, deceased was shifted to hospital where he succumbed to the injuries. In Fard Bayan (Ex.PS) as well as FIR (Ex.PA) complainant (PW-11) herself has mentioned as under:- But while appearing in the dock both these witnesses contradicted the narration of FIR (Ex.PA) and Fard Bayan (Ex.PS) in the following manner:- Ms. Momina Bibi, complainant (PW-11)
".....The dead body was shifted to the Ambulance alongwith the police. We called the police and informed about the occurrence. The police officials also accompanied the dead body to the hospital.
Faiz Muhammad (PW-9) .........We took the dead body to the hospital in the ambulance which was arranged by Muhammad Ashraf..................."
From the above excerpts it is crystal clear that Number Khan, deceased died at the spot but it is not understandable that if these witnesses were present at the spot at the relevant time then why they did not immediately shift Number Khan to hospital which according to PW-13 was situated at a distance of 45/47 minutes of travelling from the place of occurrence. Relevant portion of statement of Atif Hussain, Inspector (then SI) is reproduced for the sake of convenience:- "......We went to the alleged place of occurrence for spot inspection via Surag Salar village. It consumed around 25 minutes in travelling from DHQ, Hospital, Attock to the village Surag Salar and 20/22 minutes were consumed in travelling from village Surag Salar to the alleged place of occurrence..............."
Besides above, Faiz Muhammad (PW-9) the witness of ocular account has made dishonest improvements in his statement. PW-9 stateed as under:- "My statement was recorded by the police in the police station. I got mentioned in my statement under section 161 Cr.P.C. that we left our home at about 08:00 a.m. Confronted with Ex.DA where it is not so recorded................I got mentioned in my statement u/s 161 Cr.P.C. that Muhammad Ashraf came at the time when my statement was being recorded by the police. Confronted with Ex.DA where it is not so recorded......................"
Furthermore, the presence of the eye witnesses becomes doubtful on perusal of the postmortem report (Ex.PM) as well. The post mortem report (Ex.PM) transpires that the eyes of the deceased were found half open, which cannot happen in the presence of eye witnesses. This fact is also mentioned in inquest report (Ex.PP) that the eyes and mouth were half opened. Had the eye witnesses present at the crime scene, they would have shut the eyes of the deceased, while taking them to the hospital and thereafter. The Hon'ble Supreme Court of Pakistan while being confronted in a similar situation in the case of ZAHIR YOUSAF AND ANOTHER VERSUS THE STATE AND ANOTHER (2017 SCMR 2002) had granted acquittal in favour of the accused.
Moreover, both the witnesses of ocular account deposed that immediately after the occurrence they informed Ashraf (given up PW) and stayed at the place of occurrence till his arrival and waiting for his commends. During cross-examination on complainant (PW-11) it surfaced that brother of said Ashraf (given up PW) was murdered by brother-in-law of the appellant, thus, it can safely be inferred that complainant party might have falsely implicated the appellant on the asking of Ashraf (given up PW).
It is also noteworthy that Ashraf (PW) who statedly reached at the spot after the occurrence and on whose Dera in village Surag Salar, District Attock these PWs and the deceased were statedly residing was given up without any cause and justification, which further reflects adverse presumption against the prosecution. Reliance in this respect is placed on case titled "Shaukat Hussain v. The State through PG Punjab and another" (2024 SCMR 929).
In view of above discussion, the prosecution has failed to prove a plausible justification for presence of PW-9 and PW-11 at the time and place of occurrence, hence ocular account furnished by them being chance witnesses replete with contradictions and improvements due to their unnatural conduct is not free from doubt and cannot be relied upon.
10. Medical evidence was produced by the prosecution, according to which on 06.11.2021 at 08:30 p.m. Dr. Aizaz Afzal (PW-6) conducted autopsy on the dead body of Number Khan, deceased and noted "Injury No.1: multiple small penetrating wound (more than 50 in numbers) measuring almost 1 mm x 1 mm, involving in front of neck, front of chest and right shoulder, upto xiphisternum, blackening present on all wounds. Some pellets were retrieved and sent to PFSA for ballistic expert opinion". According to scaled site plan (Ex.PB) inter-se distance between Point-1 (where deceased was standing at the time of occurrence) and Point-2 (from where appellant made fire shot upon the deceased) was 2-karams i.e. 10/11 feet. With such a distance between the victim and the assailant, there was no probability that the fire would have left the blackening around the wounds. Reliance is placed on the cases reported as "Mansab Ali and another v. The State" (2024 P Cr. L J 617) and "Muhammad Zaman vs. The State" (2018 YLR Note 177). This PW further stated that probable time that elapsed between injury and death was one hour while between death and post mortem was 5 to 7 hours. Time of death and post mortem given by PW-6 does not coincides with the time of occurrence given in FIR (Ex.PA). This conflict between the medical and the ocular account also belies the presence of prosecution witnesses at the site.
11. Insofar as the positive report of PFSA (Ex.PX) is concerned, it is observed that after the registration of FIR (Ex.PA), Atif Hussain, Inspector (PW-13) was entrusted with the investigation of this case, who visited the spot on 06.11.2021 and collected one crime empty of cartridge of 12-bore from the place of occurrence and this article was taken into possession vide memo (Ex.PC). He handed over the crime empty to Ahmed Nawaz Moharrar Malkhana 389/HC (PW-4) for safe custody in Malkhana.
While appearing before the trial court, Ahmed Nawaz 389/HC (PW-4) deposed that on 07.11.2021, he handed over parcel of blood-stained earth, cartridge, Jar and brown envelope to Atif Hussain, Inspector (PW-13) for its onward transmission to the office of PFSA. When the Investigating officer (Atif Hussain, Inspector PW-13) appeared before the trial court, he stated that he took the parcels of blood-stained earth, crime empty, sealed envelope on 08.11.2021. It is interesting to notice that there is contradiction in the statements of PW-4 (Ahmed Nawaz 389-HC Moharrar Malkhana), who stated that he handed over parcel of cartridge to Atif Hussain, Inspector (then S.I) (PW-13) on 07.11.2021, while Atif Hussain, Inspector/I.O (PW-13) deposed that he took the parcel of cartridge on 08.11.2021. Moreover, no justification was given by the I.O (Atif Hussain, Inspector PW-13) as to why he kept the parcel with him for one day. Investigating Officer/Atif Hussain S.I (PW-13) deposed that Saeed Akhtar appellant was arrested on 06.07.2022, who, in the presence of witnesses, got recovered rifle/gun 12-bore and one live bullet on 12.7.2022 (P.7) vide recovery memo Ex.PT. Ahmad Nawaz 389-HC Moharrar Malkhana (PW-4) deposed that on 12.7.2022, Atif Hussain S.I (PW-13) handed over one sealed parcel said to contain rifle 12-bore and one live cartridge, which he kept intact in Malkhana and on 18.7.2022, he handed over the same to Atif Hussain S.I/I.O (PW-13) for its onward transmission to PFSA, Lahore. While, Atif Hussain S.I/I.O (PW-13), deposed that on 18.7.2022, I took the parcel of 12 bore gun/rifle from Moharrar Maalkhana Ibrar Ahmed/HC and deposited the same into office of PFSA, Lahore intact. There is again contradiction in the statement of Atif Hussain, Inspector/I.O (PW-13) with respect to name of Moharrar Malkaha as Ahmad Nawaz 389-HC Moharrar Malkhana (PW-4) stated that he handed over the sealed parcel said to contain rifle 12- bore with one live bullet on 12.7.2022 to Atif Hussain, Inspector (PW-13), while PW-13/I.O deposed that he took the parcel of 12-bore gun/rifle from Moharrar Malkaha Ibrar Ahmed 1851-HC (PW-8) while appearing in witness box also stated that he was handed over one sealed parcel said to contain 12-bore gun alongwith one live cartridge for keeping in safe custody, which he handed over to Atif Hussain, Inspector/I.O on 18.7.2022. Both the witnesses i.e. Ahmad Nawaz 389-HC Moharrar Malkhana (PW-4) and Moharrar Malkaha Ibrar Ahmed 1851-HC (PW-8) have stated that they were handed over one sealed parcel said to contain 12 bore gun/rifle alongwith one live cartridge for keeping in safe custody on 18.7.2022, which they had handed over to Atif Hussain S.I/I.O (PW-13) on 18.7.2022, hence, in the wake of this fact, the positive report received from the PFSA is of no use to the prosecution because the chain of safe custody is missing, which creates serious doubt about the recovery of the .12 bore gun/rifle alleged to be used as a weapon at the crime scene. 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.
12. As regards motive asserted by the prosecution was registration of earlier hurt case due to land dispute against Number Khan deceased by one Anwar Zaib thus complainant (PW-11) suspected that Muhammad Sharif, Muhammad Wahab, Haji Qasim, Anwar Zaib, Muhammad Shafiq and Najam-ul-Haq abetted the occurrence but while appearing in the dock complainant (PW-11) admitted that they do not have any rivalry/enmity with the appellant. Even otherwise, in view of following deposition of complainant (PW-11) the entire story of motive falls to the ground:- "..............Volunteer stated that we have suspicion about the involvement of Muhammad Shareef and others in the instant case, so, I initially nominated them. Now I am satisfied that they have nothing to do with this occurrence."
In the absence of proof of motive, the real cause behind the murder remains shrouded in mystery and it cannot be ascertained that what actually had happened at the spot which prompted the accused/appellant to take life of an innocent person, with whom apparently he was not carrying any grudge or grouse.
13. Although it has been argued by learned District Public Prosecutor that Saeed Akhtar (appellant), remained an absconder in this case for a considerable period and his abscondance corroborates the prosecution case against him but it is by now well settled that when a person is named as a murderer, whether rightly or wrongly, he usually becomes scared and tries to conceal himself in order to avoid possible police torture and detention, therefore, mere abscondence of an accused by itself is not sufficient to maintain his conviction and sentence in absence of other reliable evidence. Reliance in this respect may be placed on the judgments reported as "Muhammad Masood alias Mithu vs. The State and others" (2025 SCMR 888), "Rohtas Khan vs. The State"
(2010 SCMR 566) and "Muhammad Khan vs. State" (1999 SCMR 1220).
14. In the light of above discussion, I am of the view that the prosecution has failed to prove its case against the appellant beyond the shadow of doubt, therefore, I accept Criminal Appeal No.1096 of 2024 filed by Saeed Akhtar appellant, set aside his conviction and sentence acquit him of the charge by extending him the benefit of doubt. The appellant Saeed Akhtar is in custody, he be released from the jail forthwith, if not required to be detained in any other case. Case property be disposed of in accordance with law.