MUHAMMAD TARIQ NADEEM, J: - Through this single judgment, we intend to decide Criminal Appeal No.7366 of 2022, filed by Ali Raza appellant against his conviction and sentence and Crl.
Appeal No. 11786 of 2022 against acquittal of co-accused namely Riaz Ahmad preferred by mother of the complainant along with Murder Reference No.34 of 2022, transmitted by learned trial court for confirmation or otherwise of death sentence of the appellant being originated from the same judgment dated 29-01-2022 passed by the court of learned Additional Sessions Judge, Camp at District Jail, Hafizabad in case FIR No.206 dated 17-04-2008 for offences under Sections 302, 34 and 109 PPC registered at Police Station City Hafizabad and at the conclusion of trial, the learned trial court while acquitting co-accused namely Riaz Ahmad, convicted and sentenced the appellant as under:- U/S 302 (b) PPC.
Sentenced to death for committing the murder of Tahir Murtaza (deceased) with the direction to pay a sum of Rs.10,00,000/- as compensation under Section 544-A Cr.P.C. to the legal heirs of deceased, or in default thereof to undergo six months S.I.
2. The brief facts as narrated in FIR (Ex.PN/1) lodged by Hassan Murtaza, complainant (PW.14) are that he was permanent resident of Chak No. 369/G.B, Raisanwala, Tehsil and District Nankana and now a days, he (PW.14) alongwith his family resided at Madhrianwala Road, Hafizabad. On 05-09- 2007, Ali Asghar son of Muhammad Younis, caste Rajpoot, r/o Raisanwala was murdered in Chak No. 591 and a case was registered against complainant's brothers and relatives at Police Station Londianwala, whose inquiry was scheduled for 17-04-2008 at Faisalabad and after attending the inquiry, at about 04:30 p.m. he (complainant) alongwith his brother Tahir Murtaza, Tariq Iqbal and Imtiaz Ahmad, deboarded from Toyota Hiace and were going to their house. Tahir Murtaza was going ahead of them. A red colour cultus car bearing registration No. LEA/9008-06 was already parked there. Suddenly, Ali Raza, armed with pistol 30 bore, Mubashar alias Bashra armed with pistol 30 bore and Riaz Ahmad armed with pistol 30 bore came out from car. Ali Raza, raised lalkara to teach a lesson to Tahir Murtaza and made three repeated fire shots, which landed on left side of his chest. Then Mubashar alias Bashra inflicted three successive fire shots at the chest of Tahir Murtaza. Thereafter, Riaz Ahmad, armed with 30 bore pistol also took three consecutive fire shots, which landed on the chest of Tahir Murtaza, who fell down after receiving injuries. An unknown person was sitting on driving seat of the car. Accused persons while raising lalkaras took to their heels. They shifted Tahir Murtaza to Civil Hospital, Hafizabad, who succumbed to the injuries on the way to hospital. He (complainant) alongwith his companions witnessed the occurrence. On 09-04- 2008, Shahid Usman and Muhammad Pervez told them that some days ago they were passing near the drawing room of Ali Raza in village Raisanwala and they saw accused Shaukat, Ashraf alias Ladda and Babar Ali sitting in the drawing room of Ali Raza and asking him that one of sons of Rana Murtaza be killed to take revenge of his brother and they will handle the affairs. Ali Raza etc. at the abetment of Shaukat Ali etc. committed the murder of Tahir Murtaza. Hence, the FIR.
3. After collecting incriminating evidence and finding appellant alongwith his co-accused involved in the case, the investigating officer prepared report under section 173 Cr.P.C. and submitted the same before the trial court.
4. The trial court, after observing pre-trial legal formalities, framed charge against the appellant alongwith his co-accused to which they pleaded not guilty and claimed trial. The prosecution in order to prove its case produced as many as 14 witnesses. Hassan Murtaza, complainant (PW.14) and Tariq Iqbal (PW.7) furnished the ocular account. Mukhtar Ahmad, SI (PW.13) being the Investigating Officer stated about the various steps taken by him during investigation of the case.
The medical evidence was furnished by Doctor Basharat Rasool Ghuman, CMO (PW.9), who conducted autopsy on the dead body of Tahir Murtaza (deceased) and issued post-mortem report (Exh.PJJ).
Rest of the prosecution witnesses are formal in nature. The prosecution gave up Muhammad Akram, Inspector and Javed Iqbal 787/C, PWs being unnecessary and Muhammad Aslam 215/HC, Mukhtar Ahmad, SI & Masood Ahmad Bhatti, draftsman, PWs being dead and after tendering in evidence report of Serologist as Exh.PRR closed its evidence.
5. Thereafter the statements under section 342 Cr.P.C. of the appellant and his acquitted co- accused were recorded wherein they refuted the allegations leveled against them and professed their innocence. The appellant along with his acquitted co-accused neither opted to appear as their own witnesses on oath as provided under Section 340(2) of the Code of Criminal Procedure, 1898 in disproof of the allegations levelled against them, nor produced any defence evidence.
6. The learned trial court vide judgment dated 29-01-2022 found the appellant guilty, convicted and sentenced him as mentioned above, however, acquitted his co-accused namely Riaz Ahmad of the charge through the same judgment by giving him the benefit of doubt, hence, these criminal appeals, and connected Murder Reference before us.
7. We have heard the learned counsel for the parties as well as learned Deputy Prosecutor General assiduously and gone through the record with their able assistance.
8. In an attempt to make it a case of direct evidence against the appellant, the prosecution has heavily relied upon the statements of Hassan Murtaza, complainant (PW.14) and Tariq Iqbal (PW.7), who happened to be the real brother and relative of Tahir Murtaza (deceased) respectively. The alleged occurrence took place on 17-04-2008 at 04:30 p.m. within the area of Madhrianwala Chowk, about 01 kilometer away from Police Station City Hafizabad. It was mandatory for the above mentioned eye witnesses to justify their presence at the place of occurrence at the relevant time through some cogent reason but they have failed to establish their presence at the relevant time and place of occurrence. A chance witness has been defined in case titled as "Mst. Sughran Bibi vs. Qaiser Pervez" (2015 SCMR 1142) as infra:- "...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 a place where he resides, carries on business or runs day to day life affairs..."
According to the prosecution story, on 17-04-2008 at about 04:30 p.m. Hassan Murtaza, complainant (PW.14) alongwith Tahir Murtaza (deceased), Tariq Iqbal (PW.7) and Imtiaz Ahmad (jettisoned PW) after attending the investigation of case FIR No. 596 of 2007 at SP, Office, Faisalabad, came to Hafizabad on Toyota Hiace Wagon.
They alighted from the wagon at Madhrianwala Chowk and were going to the house of Tahir Murtaza (deceased), the occurrence took place at 04:30 p.m.. It is noteworthy that during cross examination Hassan Murtaza, complainant (PW.14) stated that in the said FIR neither he (complainant) nor Tariq Iqbal (PW.7) and Imtiaz (Jettisoned PW) were accused persons. He (PW.14) further stated that he (PW.14) was permanent resident of village Raisanwala and prior to the occurrence and after the occurrence his permanent and temporary address was Raisanwala. He (PW.14) also described address of Tariq Iqbal (PW.7) as Raisanwala. Excerpt of his cross- examination is being reproduced as under:- "....My permanent address is village Raisanwala. Tariq Iqbal PW is cousin of my father and permanent resident of village Raisanwala. Raisanwala village is at about 106 Km from place of occurrence.
It is correct that during the days of occurrence. Tariq PW was serving as Secretary Union Council at Chak No.12, district Nankana sahib. Tariq Iqbal PW neither have any place of business nor have any resident in the surroundings of place of occurrence. Prior to the occurrence and after the occurrence my permanent address and temporary address is of Raisanwala. In the surrounding of place of occurrence. I have no personal business..."
Likewise, Tariq Iqbal (PW.7) has also admitted that he was resident of village Raisanwala. Relevant lines of his cross-examination as reproduced infra:- "...Tahir Murtaza deceased from my brotherhood. I was neither accused nor complainant or witness of the murder of Ali Asghar brother of Ali Raza accused. During the days of occurrence I was serving as Secretary u/c Chak No.12 Nanakana Sahib. Raisanwala village is situated at a distance 100 to 150 Km from the place of occurrence. I am permanent as well as temporarily resident of village Raisanwala during the days of occurrence. In the vicinity of place of occurrence neither I have any residence nor any business. The investigation of murder of Ali Asghar was in progress before Rana Iqbal SSP, Faisalabad who was conducted investigation. I Hassan Murtaza complainant and Imtiaz PW did not record any statement before the I.O at Faisalabad Similarly, Khizar Hayat SI/I.O (PW.11) has admitted in his cross-examination that Hassan Murtaza and Tariq Iqbal eye-witnesses were resident of Raisanwala, District Nankana Sahib and it was an unwitnessed occurrence. Relevant portion of his cross-examination is mentioned below:- "....Complainant Hassan Murtaza and Tariq Iqbal eye witnesses are resident of Raisanwala district Nankana sahib which is distance of about 150 Km. Imtiaz Ahmad eye witness is resident of Madhrianwala which is at distance of 5/6 Km. Place of occurrence was not cordon by the police.
Complainant and eye witnesses did not produce their blood stained clothes to me. The complainant did not produce any proof of residence at Hafizabad i.e. proof of rent or ownership of the house.
It was unwitnessed occurrence..."
In the eventuality of supra mentioned facts, we are of the considered view that Hassan Murtaza, complainant (PW.14) and Tariq Iqbal (PW.7) were residents of village Raisanwala, Tehsil and District Nankana Sahib. They had no occasion to go to Hafizabad. If for the sake of arguments, it is admitted as correct that they joined the investigation at SP, Office, Faisalabad then after attending the inquiry, they should return to their own homes otherwise there should be cogent and valid reasoning to accompany Tahir Murtaza (deceased), which is lacking in this case. Moreover, the prosecution has failed to produce any documentary or oral evidence of any police official before whom they joined the investigation of case FIR No. 596 of 2007. We have further noted that both the eye witnesses while appearing in the dock have not described the place of occurrence.
In the light of above analysis of the statements, we have no hesitation to hold that the PWs have failed to establish their presence at the spot at the relevant time rather they are related and chance witnesses and as such their evidence is not reliable. Reliance is placed upon the case-laws titled as "Mst. Mir Zalai v. Ghazi Khan and others" (2020 SCMR 319) wherein the apex court has given following observation regarding testimony of chance witnesses:- "...The circumstances in which the FIR had been lodged in this case were quite suspicious and the eye-witnesses produced by the prosecution before the trial court were admittedly chance witnesses who had failed to establish the stated reason for their presence with the deceased at the relevant time..."
Further reference can be made to the cases of "Sarfraz and another Vs. The State" (2023 SCMR 670)and"Muhammad Hassan & another v. The State & another" (2024 SCMR 1427).
9. Another important aspect of the case is that the story narrated by the prosecution is highly improbable and not appealing to a prudent mind because as per contents of FIR (Exh.PNN/1), firstly Ali Raza, appellant made three successive fire shots, which landed at the left side of chest of Tahir Murtaza (since deceased); thereafter co-accused Mubasher alias Bashra (since acquitted in separate trial) inflicted three repeated pistol fire shots on the chest of Tahir Murtaza (deceased) and subsequently Riaz Ahmad, co-accused (since acquitted) also caused three consecutive fire shots which also landed on the chest of Tahir Murtaza (deceased) and thereafter due to the injuries, Tahir Murtaza (deceased) fell down. It is noteworthy that Hassan Murtaza, complainant (PW.14) and Tariq Iqbal (PW.7) while appearing in the witness box have narrated almost same story. According to the testimony of Doctor Basharat Rasool Ghuman, CMO (PW.9), who conducted the autopsy on the dead body of Tahir Murtaza, noted following injuries:- "INJURIES
1. Lacerated firearm wounds of entry 9 in numbers on the left side of chest front part each size was 1 cm x 1cm into going deep corresponding with exit wounds 9 in numbers size of each was 1 cm x 1 1/2 cm on the back of left chest indicated in pictorial diagram..."
While conducting the postmortem on the dead body of Tahir Murtaza, he (PW.9) further noted that except larynx, trachea and right lung remaining all the organs of thorax were injured.
Here, we would like to refer the opinion of Doctor Vincent J.M. Di Maio in Gunshot Wounds: Practical Aspects of Firearms, Ballistics, and Forensic Techniques, wherein following conclusion are drawn:- "Experiments have shown that an individual can remain conscious for at leaset 10 to 15 sec. after complete occlusion of the carotid arteries. Thus, if no blood is pumped to the brain because of massive gunshot wound of the heart, an individual can remain conscious and function, e.g. run, for at least 10 sec before collapsing (Chapter 9: Bloody Bodies and Bloody Scenes)
Doctor Di Maio further elaborates:- "While there are numerous cases where an individual has received a mortal wound and continued to function, there are also numerous cases where an individual collapsed immediately after receiving non-lethal, even minor, wound. In these cases, the rapid incapacitation is due to psychological and physiological reactions to the trauma, specific to the victim, and not the nature of the wounds." (Chapter 9: Blood Bodies and Bloody Scenes).
In the "Textbook of Forensic Medicine and Toxicology (2nd Edition) by Nageshkumar G.Rao it has been described as under:- "Bullet wounds of vital parts like brain, heart, etc. can kill the victim instantaneously. However, in gunshot injuries to other parts of the body, victims can live for sufficiently long enough and even may remain ambulant and may perform important acts/reach hospital on their own and then die (volitional activities). (Chapter 20: Firearms and Explosion Injuries).
We have observed that it is not the case of prosecution that all the accused persons made firing simultaneously on the body of Tahir Murtaza (since deceased) rather as per story of prosecution, firstly, Ali Raza, appellant, thereafter Mubashar alais Bashra, co-accused (since acquitted in separate trial) and lastly Riaz Ahmad, co-accused (since acquitted) made three repeated fire shots each, which landed on the left side of chest of Tahir Murtaza (deceased). That all the nine fire shots injuries are on the vital part of body i.e. left side of chest and as per statement of Doctor Basharat Rasool Ghuman (PW.9) except larynx, trachea and right lung, remaining all the organs of thorax were injured. It is noteworthy that thorax contains vital organs related to respiration, circulation and digestion. Key organs includes the lungs, heart, trachea, esophagus and thymus gland. The Thoracic cavity or chest is the space within the rib cage that houses these organs.
Moreover, major blood vessels like the aorta and vena cava, which connect the heart to the body, are also part of thorax. In this way, as per the statement of Doctor (PW.9), the heart, left lung, esophagus and thymus gland of Tahir Murtaza (deceased) were injured.
In the light of above, we have no hesitation to hold that a man cannot remain static after receipt of single pistol fire shot on the left side of his chest and as such other eight entry wounds at the same locale are not possible, this fact also makes the prosecution story highly doubtful in nature.
10. Another important aspect of this case is that the witnesses of ocular account, Hassan Murtaza, complainant (PW.14) and Tariq Iqbal (PW.7) are not witnesses of inquest report (Exh.PMM) and postmortem report (Exh.PJJ) pertaining to Tahir Murtaza (deceased).
If they were present at the scene of the occurrence at the relevant time, they must have been the witnesses of inquest report. Similarly, they should have escorted the dead body to the hospital being brother and relative of Tahir Murtaza (deceased) and their names should have been incorporated in the post mortem report in the column of identification of the dead body. These facts have also constrained us to hold that they were not present at the time and place of occurrence. We have fortified over view from the dictum laid down in cases titled as "Liaqat Ali and another Vs. The State and others" (2021 SCMR 780), "Iftikhar Hussain alias Kharoo v. The State"
11. We have further noted that according to the prosecution story as contained in the FIR (Exh.PNN/1), on the fateful day, co-accused of the appellant namely Mubashar alias Bashra made three fire shots with his pistol 30 bore, which landed on the chest of Tahir Murtaza (deceased).
Record reflects that effective role was attributed to him towards the deceased but he was acquitted by the learned trial court by invoking the provisions of section 265-K Cr.P.C. vide order dated 16-12-2023.
Learned counsel for the appellant filed written application under section 428 Cr.P.C. for the production of certified copies of supra mentioned application under section 265-K Cr.P.C. and order dated 16-12-2023 passed by the learned trial court qua the acquittal of co-accused which has been accepted on the concessional statement of the learned Deputy Prosecutor General assisted by learned counsel for the complainant vide our order of even date. Subsequently, the above-mentioned documents were made part of evidence as Exh.PVV, Exh.PXX and Exh.PYY.
Learned Deputy Prosecutor General assisted by learned counsel for the complainant has conceded that no appeal against acquittal of co-accused Mubashar alias Bashra has been field by the State or the complainant. It is a trite principle of law and justice that once prosecution witnesses are disbelieved with respect to a co-accused then, they cannot be relied upon with regard to the other co-accused unless they are supported by corroboratory evidence coming from independent source and shall be unimpeachable in nature but that is not available in the present case. Guidance is hereby sought from the cases of "Maqsood Alam and another v. The State and others" (2024 SCMR 156), "Shaukat Hussain v. The State through PG Punjab and another" (2024 SCMR 929), "Muhammad Iqbal v. The State and another" (2024 SCMR 1133) and "Muhammad Nawaz and another vs. The State and others" (2024 SCMR 1731).
12. So far as the contention of learned Deputy Prosecutor General assisted by learned counsel for the complainant that the appellant remained fugitive from law for a considerable period which is also a proof that he had committed the occurrence, is concerned, it is noteworthy that the law is by now well settled that the abscondence alone is not sufficient to record conviction on a capital charge and it can be used only as a corroboratory and confirmatory in support of ocular account but in the present case, substantive piece of evidence in the shape of ocular account has been disbelieved, therefore, no conviction can be based on abscondence alone. The absconsion of the accused may be relevant qua the guilt or innocence of accused, which is to be decided keeping in view overall facts of the case. In this respect, we may refer the esteemed judgments passed by the Hon'ble Supreme Court of Pakistan titled as "Iftikhar Hussain alias Kharoo vs. The State"(2024 SCMR 1449) and "Rafaqat Ali alias Foji and another v. The State and others" (2024 SCMR 1579).
13. Now adverting to the recovery of pistol 30 bore (P.6) on the disclosure and pointation of the appellant from the wall of a CNG pump, vide recovery memo (Exh.PX) is concerned, the same is not helpful to the prosecution, firstly, the same was recovered from an open place and secondly, the report of Punjab Forensic Science Agency, Lahore (Exh.PTT) is confined only to the working condition of pistol 30 bore allegedly recovered at the instance of the appellant. In this way, this piece of evidence is inconsequential. Reliance in this respect can be made to the following case law "Muhammad Mansha Vs. The State" (2018 SCMR 772).
Even otherwise, it is not safe to rely on such type of piece of prosecution evidence, which is merely corroborative of direct evidence and is not itself the conclusive evidence of charge, hence, does not offer any help to the prosecution case in the absence of any trustworthy and confidence inspiring eye witness account. Wisdom is hereby drawn from the case laws titled as "Mian Sohail Ahmad and others Vs. The State and others" (2019 SCMR 956), "Muhammad Ijaz alias Billa and another v. The State and others" (2024 SCMR 1507) and "Abdul Hayee and Abdullah alias Ghazali and another v. The State and others" (2025 SCMR 281).
14. The motive alleged by the prosecution was that of grudge of murder of one Ali Asghar i.e. brother of Ali Raza, appellant. We have already disbelieved the statements of eye witnesses account, therefore, there is no need to dilate upon the motive part of the occurrence, even otherwise, it is by now well settled principle of law that such like motive is a double-edged weapon, which, at one edge, may be the reason for the assailant to commit the offence, but at the same time, it could equally be considered a reason for false implication of appellant on account of previous ill-will. Reference in this matter may be made after visiting the archive of judicial verdicts to the case of "Muhammad Ashraf alias Achu v. The State" (2019 SCMR 652).
15. The prosecution's failure to establish its case against the appellant beyond a reasonable doubt, or more accurately, the fact that reasonable doubt is looming in this instance, is the apex of the foregoing thorough discussion. It is well-established principle of the administration of justice in criminal cases that the finding of guilt against an accused person cannot be made solely on the basis of high probabilities that may be drawn from the evidence in a particular case. The findings as regard their guilt should be rested surely and firmly on the evidence produced in the case and the plain inferences of guilt that may irresistibly be drawn from that evidence. Mere conjectures and probabilities cannot take the place of proof. If a case is decided merely on high probabilities regarding the existence or non-existence of a fact to prove the guilt of a person, the golden rule of giving "benefit of doubt" to an accused person, which has been a dominant feature of the administration of criminal justice in this country with the consistent approval of the Constitutional Courts, will be reduced to a naught. The prosecution is under obligation to prove its case against the accused person at the standard of proof required in criminal cases, beyond reasonable doubt standard, and cannot be said to have discharged this obligation by producing evidence that merely meets the preponderance of probability. If the prosecution fails to discharge its said obligation and there remains a reasonable doubt, not an imaginary or artificial doubt, as to the guilt of the accused person, the benefit of that doubt is to be given to the accused person as of right, not as of concession. Reliance is placed upon the following case laws titled as "Muhammad Riaz vs. Khurram Shahzad and another" (2024 SCMR 51) "Muhammad Nawaz & another v. The State and others" (2024 SCMR 1731), "Rehmat Ullah & 2 others v. The State & others" (2024 SCMR 1782) and Sikandar Ali alias Bhola v. The State" (2025 SCMR 552) and Muhammad Ehsan Shah vs. The State through A.G. Islamabad and another" (2025 SCMR 730).
16. The aftermath of above-said discussion is that, the prosecution has failed to prove its case against the appellant beyond any shadow of doubt. So by extending the benefit of doubt to Ali Raza, appellant, we accept his appeal and acquit him of the charge. He shall be enfranchised trice, if not required to be detained in connection with any other case.
17. Murder Reference is answered in negative and death sentence passed by learned trial court against Ali Raza, appellant is not confirmed.
18. As a natural corollary, Crl. Appeal No.11786 of 2022 filed by the mother of complainant against acquittal of co-accused Riaz Ahmed is hereby dismissed.