SARDAR AKBAR ALI, J:- Shahid alias Shahidi (convict/appellant) along with his co-accused Nazim Hussain and Ibraheem (co-accused of abetment, since acquitted) was tried by the learned Additional Sessions Judge, (MCTC), Sheikhupura, in a private complaint titled "Saddam Hussain vs. Shahid alias Shahidi and two others" under sections 302, 34/ 109 PPC instituted by Saddam Hussain/ complainant (PW-1) being dissatisfied with the investigation conducted by the police in case FIR No.441 of 2019, dated 02.10.2019 for offences under sections 302/ 311/ 109/ 34 PPC registered at Police Station Sadar Farooqabad, District Sheikhupura, and on conclusion of trial vide judgment dated 23.12.2021, Nazim Hussain and Ibraheem, co-accused of abetment were acquitted, whereas, appellant Shahid alias Shahidi was convicted and sentenced as under:- "Under Section 302 (b) PPC to death sentence for committing Oatl-e-Amad of Razia Bibi deceased. He was also directed to pay compensation of Rs1,000,000/- (one million) to the legal heirs of Razia Bibi (deceased) and in default whereof to suffer 06-months simple imprisonment."
Aggrieved by his conviction and sentence, Shahid alias Shahidi (appellant) filed Criminal Appeal No.848 of 2022. Likewise, trial Court sent reference under Section 374 Cr.P.C. which was numbered as Murder Reference No.234 of 2021 for the confirmation or otherwise of death sentence awarded to Shahid alias Shahidi appellant whereas complainant Saddam Hussain filed Crl. PSLA No.846 of 2022 challenging the acquittal of co-accused Nazim Hussain and Ibraheem. The complainant also filed Crl. Revision No.847 of 2022 for enhancement of compensation amount awarded to death convict Shahid alias Shahidi.
2. The factual matrix in which the appellant came to be prosecuted and convicted has been set out in the FIR (ExhCW-6/A) as well as in the private complaint (Exh.PB). Briefly stated, the incident that culminated in the death of deceased-Razia Bibi and the consequent prosecution of the appellant and two others by Saddam Hussain/ complainant (PW-1) is that on 02.10.2019 he submitted written complaint (Ex.PA) before Rasheed Ahmad, A.S.I (CW-6) at Police Station Sadar, Farooqabad who got transformed it into formal FIR (Exh.CW.6/A) from the computer operator alleging therein that on 02.10.2019 at about 06:30 p.m. he (Saddam Hussain, complainant) (PW-1) along with Muhammad Aslam (PW-02) and Muhammad Imran (given up PW) proceeded from his under constructed house situated at Dera Pull Wala to his house situated at Roranwali while riding on a motorcycle whose light was on whereas his mother, Razia Bibi (deceased) was going ahead of them at some distance. When they were just at some distance away to Rasheed Nagar School, three accused who were ambushed while armed with pistols came out from the paddy crop and in the light of motorcycle, they identified one of them as Shahid alias Shahidi (appellant) whereas the remaining two were unknown and also armed with pistols. Shahid alias Shahidi (appellant) instantaneously while abusing the complainant's mother, made a straight fire shot with his pistol whereas the other two unknown persons who could be identified on their appearance, also made fire shots with their pistols which hit the mother of the deceased. Consequently complainant's mother (deceased) while smeared with blood fell on the ground who succumbed to the injuries at the spot. The accused ran away from the spot while making firing. The occurrence was committed on the abetment/ instigation of co-accused Ibraheem and Muhammad Nazim.
The motive behind the occurrence was that Shahid alias Shahidi appellant and his family members were demanding the hand of complainant's sister for the last one year but his mother (deceased) refused for which the accused nourished grudge. Besides the complainant, Muhammad Aslam and Muhammad Imran witnessed the occurrence.
3. Muhammad Nazim, Sub-Inspector (CW-03) initiated the investigation. On 02.10.2019, he visited the place of occurrence; examined the dead body of deceased Razia Bibi with the help of Iqra Hayat lady constable and took three pictures of the dead body through his mobile phone; prepared application for post mortem examination (Ex.CW3/A), inquest report (Ex.CW3/B) and injury statement (Ex.CW3/C). He secured blood stained earth from underneath the deceased Razia Bibi and took the same into possession vide recovery memo (Ex.PC) and collected two crime empties of pistol .30 bore P1/1-2 scattered there and took into possession through recovery memo (Ex.PD); he took into possession motorcycle bearing registration No. JUO. 2373/LEM P2 vide recovery memo (Ex.PE); he prepared rough site plan of the place of occurrence (Ex.CW3/D) and handed over the dead body to Mubashar 1095/C (CW-08) along with private witnesses for escorting the same to the mortuary. On 03.10.2019, after post mortem examination, Mubashar Ali 1095/C (CW-08) handed over to him the police papers, dead body and the last worn clothes of the deceased comprising of Qameez off-white colour P.6, Shalwar like trouser P.7 having corresponding holes along with a sealed parcel containing led bullet P.8; he took into possession last worn clothes along with led bullet vide recovery memo (Ex.PH) and handed over the dead body of deceased to her legal heirs. He handed over the case property to Moharrar on his return to police station. On 04.10.2019 draftsman visited the place of occurrence and on his direction in the presence of complainant and witnesses, he took rough notes. On the same day, constable Mubashar produced before him three photographs P3/1-3 which were taken into possession by him through recovery memo Ex.PF. On 06.10.2019, Draftsman Muhammad Riaz, handed over to him three copies of scaled site plan (Ex.CW3/E) and (Ex.CW3/F). On 08.10.2019 Riasat Ali Moharrar handed over to him two sealed parcels said to contain blood imbrued earth and crime empties for onward transmission to the office of PFSA which he deposited in the office of PFSA, intact. On 23.10.2019 Moharrar Muhammad Awais handed over to him a sealed parcel said to contain led bullet for onward transmission to the office of PFSA which he deposited in the office of PESA on the same day, intact.
On 24.10.2019, he arrested the appellant Shahid alias Shahidi; interrogated him; formally arrested him and on 05.11.2019, during interrogation Shahid alias Shahidi on his disclosure and in presence of witnesses Muhammad Aslam and Muhammad Imran got recovered pistol .30 bore P-4 from a trunk lying in the room of his house P.4 situated in his village Jatari Kohna which was unloaded and four live bullets P5/1-4 were recovered, sealed it into a parcel and took the same into possession vide recovery memo (Ex.PG) and prepared rough site plan of the place of recovery (Ex.CW3/G). He scribed separate complaint under Arms Ordinance and sent the same through Zaheer Ahmad constable for registration of case to the police station and after returning to police station, he handed over the case property to the Moharrar. On 06.11.2019 he got sent the appellant to the judicial lock. On 07.11.2019, Moharrar Muhammad Awais handed over to him sealed parcel of pistol for onward transmission to the office of PFSA which he deposited in the said office, intact. On 08.11.2019 he got prepared report u/s 173 Cr. PC from SHO concerned.
4. The investigation in this case was also conducted by Muhammad Akram, Inspector (CW-05) who on 22.12.2019 recorded the statements of Muhammad Ashraf (PW-03) and Ijaz Ali (since given up) regarding the abetment. On 05.01.2020, he got prepared report under section 173 Cr.P.C. regarding co-accused Muhammad Ibtaheem and Nazim Hussain by placing their names in column No.2 of the report.
Subsequently, the complainant opted to file a private complaint (Ex.PB) almost with the same story as set out in the FIR, but added that the Investigating Officer had not correctly recorded statements of witnesses under section 161 Cr.P.C. to benefit the accused.
5. The learned trial court after recording cursory evidence summoned all the accused to face trial.
When charge sheeted, the accused/appellant pleaded not guilty and claimed to be tried, whereupon, the prosecution examined Saddam Hussain/ complainant (PW-1) and Muhammad Aslam (PW-2) who furnished the ocular account of occurrence; Muhammad Ashraf (PW-03) furnished the evidence of abetment; Dr. Faiza Hanif (CW-2) conducted postmortem examination of deceased Razia Bibi and observed as under:
1. An entry wound of firearm 0.6 x 0.8cm surrounded by 4 x 4cm burning area over central mid chest, making exit wound 1 x 1cm over back of left mid chest.
2. An entry wound of fire arm 0.8 x 0.8cm over right iliac fossa making exit wound 1.5 x 1.5cm over lateral lower abdomen.
3. An entry wound of firearm 1 x 1cm over frontal left upper thigh making exit wound of 2 x 1.5 cm over mid of left thigh, 4cm lateral to the entry wound.
4. An entry wound of firearm 1 x 1.5cm over back of right mid-thigh.
5. An entry wound of fire arm 1 x 1 cm over the medial side of left mid-thigh making exit wound 3 x 2 cm over left mid-thigh 2cm medial to the entry wound.
6. An entry wound of firearm 1 x 1cm over right lower leg making 2.5 x 1.5 cm exit wound over the medial side of right lower leg.
Whereas, Muhammad Nazim, SI (CW-03) and Muhammad Akram, Inspector (CW-05) appeared in the dock to give details of their investigation. The rest of the witnesses were formal in nature. After recording the cursory statements of the complainant as well as his witnesses, the appellant and his co-accused were summoned to face trial.
On closure of prosecution case, the accused were examined under section 342 Cr.P.C. who refuted the prosecution evidence. However, neither he produced any witness in defence nor opted to appear in the witness box as required by section 340(2) Cr.P.C. and the trial ended in the terms as detailed in opening paragraph of this judgment.
6. Heard. Record perused.
7. From the narration of above facts, according to the prosecution's perspective the occurrence took place on 02.10.2019 at evening time i.e 06.30 p.m. and was alleged to have been seen by witnesses namely Saddam Hussain/ complainant (PW-1) and Muhammad Aslam (PW-2), but the matter was reported to the police on the same day at night time i.e 09:40 p.m. with the delay of about three hours and 10 minutes, despite the fact that police station was just 12 kilometers from the place of occurrence. No reason much less plausible has been given by the prosecution at any stage. The FIR lodged on the basis of written complaint, in a murder case, would create reasonable suspicion that the crime was un-witnessed one, therefore, preliminary investigation was carried out and witnesses were set up and thereafter the complainant filed private complaint after a period of about 5 1/2 months being dissatisfied with the investigation of the police to strengthen his case. Saddam Hussain/ complainant (PW-1) while facing the cross-examination deposed that: "I informed the police regarding the alleged occurrence at 08:00 p.m. on the same day. Application for registration of case was got drafted by me from a student who was going back after having tuition as I was proceeding towards the police station. I met the student at 07:30 p.m. from whom I got drafted the application. I do not know the said person from whom I got drafted application for registration of case, hence, I cannot tell his name."
He further stated that: "I did not take the person to the police station from whom I got drafted the application for registration of case. The above said person was of 22/23 years of age. I did not tell the I.O. about name of the said person. Volunteered that I did not know his name. The said person from whom I got drafted application met me at about 07:30 p.m. at distance of twelve kilometers from the place of occurrence. Distance between place of occurrence and police station Sadar Farooq abad is about 12/13 kilometers. I reached the police station at 08:00 p.m."
Likewise Rasheed Ahmad, ASI (CW-06) stated that: "On 02.10.2019 I was posted at P.S. Sadar Farooq abad. On the same day, the complainant Saddam Hussain submitted application Exh.PA which I got transformed into formal FIR Exh.CW6/A from the computer operator."
In the attending circumstances, the delay in reporting the matter to the Police creates many suspicions and doubts in the prosecution case particularly when eyewitnesses Saddam Hussain/ complainant (PW-1) and Muhammad Aslam (PW-2) are not only closely related inter-se to the deceased but also the residents of the same vicinity, in such a situation if these witnesses were present at the time and place of occurrence and also witnessed the scene of occurrence then such an inordinate and unexplained delay would never have occurred. In the case Mehmood Ahmed & others v. the State & another (1995 SCMR 127), it was observed by the Hon'ble 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 was taken by the Apex Court in the recent pronouncements in cases titled Mst. Nazia Anwar v. The State and others" (2018 SCMR 911) and "Muhammad Nawaz vs. The State and others" (2024 SCMR 1741).
8. Although as per contents of the FIR, the occurrence took place on 02.10.2019 at 06.30 p.m. and was alleged to have been seen by witnesses namely Saddam Hussain/ complainant (PW-1) and Muhammad Aslam (PW-2), and the matter was reported to the police on the same day at 09:40 p.m., but postmortem examination on the dead body of Razia Bibi, deceased was conducted on 03.10.2019 at 03:20 a.m., i.e., with the delay of 09 hours. In the postmortem report of Razia Bibi (CW- 2/A), the doctor who conducted postmortem examination on the dead body of the deceased had mentioned probable time between injuries and death as immediate whereas between death and postmortem as 6 to 12 hours. Saddam Hussian/ complainant (PW-01) in his examination-in-chief stated that dead body of Razia Bibi, deceased remained present at the place of occurrence for about 3 3/4 hours and none lifted it till such period from the place of occurrence. Muhammad Nazim, SI (CW-03) in his cross-examination stated that he reached at the place of occurrence at 10:20/ 10:25 p.m. and thereafter he conducted investigation at the place of occurrence. Thus, there is obvious delay in sending the dead body to mortuary, as according to postmortem report (CW- 2/A) the police papers were received at 03:15 a.m. at the mortuary and thereafter postmortem examination was conducted at 03:20 a.m. Keeping in mind that Saddam Hussain/ complainant (PW-1) and Muhammad Aslam (PW-2) are closely related inter-se to the deceased and also the fact that both these witnesses of ocular account are the residents of the same vicinity, 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 would never have occurred. So it was also a case of delayed postmortem, which casts serious doubt and the inference can be drawn that the intervening period was consumed in fabricating the prosecution story after the preliminary investigation, otherwise there was no justification for conveying the dead body in the mortuary on the next day at 3.20 a.m, what happened in between, which delayed the postmortem examination for about 09 hours. There is no explanation at all available on record for such delay.
No doubt, the noticeable delay in post mortem examination of the dead body is generally suggestive of a real possibility that time had been consumed by the police in procuring and planting eye-witnesses before preparing police papers necessary for the same. We may refer here the case of "Irshad Ahmed v. The State" (2011 SCMR 1190), wherein the Hon'ble Supreme Court of Pakistan has observed as under:- "We have further observed that the post-mortem examination of the dead body of Shehzad Ahmed deceased had been conducted with a noticeable delay and such delay is generally suggestive of a real possibility that time had been consumed by the police in procuring and planting eye-witnesses and in cooking up a story for the prosecution before preparing police papers necessary for getting a post-mortem examination of the dead body conducted."
Similar view was also reiterated by the Hon'ble Supreme Court of Pakistan in cases titled as Muhammad Rafique alias Feeqa v. The State (2019 SCMR 1068) and "Iftikhar alias Kharoo vs. The State (2024 SCMR 1449).
9. The entire case of the prosecution relies on the ocular account furnished by Saddam Hussain/ complainant (PW-1) and Muhammad Aslam (PW-2). We have examined the ocular account.
Muhammad Aslam (PW-02) is maternal uncle of Saddam Hussain/ complainant (PW-1). It is very surprising as well as quite unnatural that as per prosecution's own case, Razia Bibi (deceased), real mother of Saddam Hussain/ complainant (PW-1) and sister of Muhammad Aslam, (PW-02) and Muhammad Imran (given up PW) was going on foot whereas all the aforementioned PWs while riding on a motorcycle were coming behind her. The complainant in his cross-examination admitted that: "We three persons were upon motorcycle. We did not cross my deceased mother Razia Bibi on her way. We did not board our mother at motorcycle."
Muhammad Aslam (PW-02) in his cross-examination stated that: "After departure of Razia Bibi, we locked the under constructed haveli and proceeded on motorcycle during the said period of four minutes. We drove the motorcycle in start condition while following the deceased. We did not cross the deceased Razia Bibi rather we were behind her when the occurrence took place."
10. Even otherwise, there are a number of flaws, contradictions and improvements in the statements of Saddam Hussain/ complainant (PW-1), and Muhammad Aslam (PW-2). Saddam Hussain/ complainant (PW-1) in his cross-examination stated that: "I informed the police regarding the alleged occurrence at 08:00 p.m. on the same day. Application for registration of case was got drafted by me from a student who was going back after having tuition as I was proceedings towards the police station. I met the student at 07:30 p.m. from whom I got drafted the application. I do not know the said person from whom I got drafted application for registration of case, hence, I cannot tell his name."
He further averred that: "I made phone call to help line 15 from mobile phone No.0341-0028489 at about 06:30 p.m. The police came at place of occurrence at about 9:45/10:00 p.m. on 02.10.2019."
He further stated that: "Volunteered that I took my mother into my lap and made call to helpline-15"
Likewise Muhammad Aslam, (PW-2) also made contradictory statement with improvements and the relevant portion of his statement is reproduced as under: "Saddam Hussain complainant informed the police about the occurrence. Saddam Hussain made phone call at helpline 15 in order to inform the police at 06:45 p.m. Police reached at the place of occurrence after 3 1/4 hours of making phone call."."
He further stated that: "It is not in my knowledge that who called on 1122 and 15 for coming at the spot"
It is noted from the perusal of the scaled site plan (Exh.CW.3/E) that the occurrence took place at an unpaved/ rough road (kham rasta) in a deserted area. On both sides of the road, there were agricultural fields and no residential house, shop, bus stop, petrol pump or any other building has been shown at the spot. Both the abovementioned eye witnesses simply stated in their statements before the police, as well as, in their statements recorded by the learned trial Court that on the day of occurrence, they were returning back while riding on a motorcycle from the under constructed house of the complainant whereas Razia Bibi (deceased) was walking ahead of them. It is further noteworthy that during the investigation, Muhammad Nazim, Sub-Inspector (CW-03) in his cross- examination admitted that neither he visited the place of under constructed house as mentioned in the FIR nor hold investigation on the point that whether any under constructed house as mentioned in the FIR existed or not. He further admitted that he did not visit the place of under constructed house in order to fortify the stance of complainant party. The PWs also failed to bring on record any evidence about their departure from the under constructed house. The above- stated contradictions and discrepancies in the ocular account of the eyewitnesses cannot be discarded. These contradictions have diluted the story of the prosecution, whose case rested on the statements of eyewitnesses, who all are closely related to the deceased. Actually no one else was present at the place of occurrence. It is also critical to note here that the alleged third eyewitness (Muhammad Imran) was present at the time and place of occurrence but the prosecution did not produce him as a witness rather was given up as unnecessary.
It is also interesting to note here that two unknown accused persons who were also attributed same role to that of the appellant of causing fire arm injuries to the deceased have not came on surface during investigation or during trial and in this way story narrated by the complainant party has also been found false.
The testimony of an interested witness should be scrutinized with care and caution. It is further observed that:
1. Independent corroborating evidence is essential to test the validity and credibility of the testimonies of interested witnesses.
2. Capital punishment cannot be given on the testimony of an interested witness uncorroborated by any independent evidence.
As stated above, the ocular account of these prosecution's interested witnesses is not only materially contradictory but uncorroborated by the available evidence. Hence, the conviction of appellant cannot be based upon this ocular account. Admittedly, 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. The testimony of chance witness may be relied upon, provided some convincing explanations appealing to a 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. Reliance may be placed on the cases reported as "Mst Shazia Parveen vs. The State" (2014 SCMR 1197), "Muhammad Rafique vs. The State" (2014 SCMR 1698), "Naveed Asghar and 2 others vs. The State" (PLD 2021 SC 600) and "Abdul Khaliq vs. The State" (2021 SCMR 325).
11. Another crippling feature of the prosecution case is that the blood stained clothes of the eyewitnesses were not taken into possession by the investigation officer. In this regard, Saddam Hussain/ complainant (PW-01) in his cross-examination asserted as follows: ".....My clothes and clothes of Muhammad Aslam and Muhammad Imran were stained with blood We submitted our blood stained clothes to the police, however, the police asked that there was no need."
Admittedly no such blood stained clothes of said eyewitnesses had been secured or produced by the Investigating Officer because if these were sent to the Chemical Examiner for examination and grouping with that of the blood stained clothes of the deceased, the same would have provided strongest corroboration to the testimony of the two eyewitness. This omission strikes at the roots of the case of the prosecution and speaks volumes about the dishonest and false claim of the said witnesses. Reliance in this regard is placed upon the cases reported as "Mst. Mir Zalai vs. Ghazi Khan and others" (2020 SCMR 319) and "Mst. Sughra Begum and another vs. Qaiser Pervez and others" (2015 SCMR 1142).
12. The source of light introduced by the prosecution is that the PWs witnessed the occurrence in the light of motorcycle. Admittedly it was a night time occurrence wherein the identity of the appellant and his co-accused was highly doubtful as both the above mentioned eyewitnesses claimed that they had seen the appellant abusing and thereafter making straight fire shots at the deceased with his co-accused who were armed with pistols in the light of motorcycle. Saddam Hussain/ complainant (PW-01) in his examination-in-chief admitted that: "We were 15/20 feet behind our mother on unpaved road at the place of occurrence. Accused persons also opened fire shots at us. We did not sustain any fire shot at the place of occurrence. I cannot exactly tell the number of fire shots made by accused upon us. Volunteered that those were many in number. We got off from the motorcycle after opening of fire shots by the accused persons. We laid down motorcycle after opening of fire shots by the accused persons. We laid down motorcycle on the road and get ourselves aside from the road when firing was made upon us. We got aside in field of Charri crop."
Muhammad Nazim, SI (CW-03) in his cross-examination admitted that: "The complainant party as per their stance did not run away from the place of occurrence while throwing their motorcycle on the road. Volunteered that as per version of eyewitnesses, they witnessed the occurrence with their own eyes while to be present on the place of occurrence. It is correct to suggest that my volunteered portion is false. The motorcycle of the accused was lying on the road at the place of occurrence. The motorcycle lying at the place of occurrence was not hit by fire shot and the same was also not damaged."
13. As per Seizure Memo (Exh.PE), motorcycle of the complainant party was taken into possession but while taking into consideration the aforesaid statement of the Investigating officer it appears that the motorcycle of the accused was lying on the road at the place of occurrence. The question arises here that why the motorcycle of the accused was not taken into possession. It is an also admitted fact on record that the main source of light i.e. motorcycle (Exh.PE) on which the complainant and other PWs were riding was not produced before the learned trial Court during the trial. Thus, it is important to point out here that when headlight of motorcycle is flashed on the face of a person, it is impossible for the eyewitnesses to see/ watch the acts committed in the surroundings what to talk about witnessing the firing by three accused persons, the locale of injuries and the specification of weapons of offence. In this regard reliance is placed upon the cases reported as "Kamar Sajid alias Kamar Shahzad vs. The State" (2016 YLR Note 68), "Talib Hussain Jatoi vs. The State" (2018 YLR 469) and "Dargahi vs. The State" (2023 MLD 1426).
14. We have also observed that there is a direct conflict between the ocular account and the medical evidence. According to the site plan (Exh.CW.3/E), Razia Bibi (deceased) received fire shots from a distance of five feet. Dr. Faiza Hanif (CW-2) who conducted postmortem examination on the dead body of Razia Bibi (deceased) observed that there were burnt margins present on injury No.1.
According to the Modi's Book of Medical Jurisprudence and Toxicology 27th Edition, in case of pistol fire shot burning can occur if the fire shot is made from a distance of within 02 feet. Relevant extract from the Book of Modi's Medical Jurisprudence and Toxicology 27th Edition reproduced as under:- "...25.7.1.1 Distance of the Firearm If a firearm is discharged very close to the body or in actual contact, subcutaneous tissues over an area of two or three inches around the wound of entrance are lacerated and the surrounding skin is usually scorched and blackened by smoke and tattooed with unburnt/partially burnt grains of gunpowder or smokeless propellant powder. The adjacent hairs are singed, and the clothes covering the part are burnt by the flame. If the powder is smokeless, there may be a greyish or white around the wound. If the area is photographed by infrared light, a smoke halo round the wound may be clearly noticed. Blackening is found, if a firearm like a shotgun is discharged from a distance of not more than three feet and a revolver or pistol discharged within about two feet."
Reliance is also placed upon the case law titled as "Riasat Ali and another vs. The State and another" (2024 SCMR 1224), wherein it has been held as under:- "14. The postmortem report of deceased Asadullah Khan mentions about blackened and burnt area of his entrance wound near lower end of his scapula. The distance from which the deceased Asadullah Khan was fired upon was 5.5 feet. According to Modi's Medical Jurisprudence and Toxicology blackening is found, if a firearm like shotgun is discharged from a distance of not more than three feet and a revolver or pistol is discharged within about two feet."
Thus, it can safely be held that the deceased sustained fire shot injury No.1 from a distance of 2/3 feet. It is further noticed that as per the statements of the eyewitnesses, the deceased sustained six fire shot injuries with pistols but the size of entry and exit wounds are different, therefore, possibility cannot be ruled out that different types of weapons were used in the commission of offence. The contradiction in the ocular account of the occurrence as narrated by the prosecution witnesses and the medical evidence furnished by the doctor clearly establish that the prosecution has miserably failed to prove the charge against the appellant. Guidance is sought from Muhammad Idrees v. The State (2021 SCMR 612) and Muhammad Hanif v. The State (2023 SCMR 2016).
15. Although the prosecution has set up a motive that the appellant and his family were demanding the hand of complainant's sister but complainant's mother/ deceased refused for which the accused nourished grudge. Saddam Hussain/ complainant (PW-01) in his cross- examination admitted that Anum Bibi was the same lady with whom motive part was related and Anum Bibi was married prior to alleged occurrence. He further admitted that Anum Bibi got married 20/25 days prior to the alleged occurrence and it was her love marriage whereas the other family members were not happy with her marriage. Muhammad Aslam (PW-02) admitted in his cross examination that Anum Bibi, his niece contracted court marriage with Yasir Pathan about 10/15 days prior to the occurrence. He also admitted that one sister of Anum Bibi was married to the brother of accused Shahid alias Shahidi who had four kinds. He also admitted that in his presence motive occurrence did not take place. Muhammad Nazim, SI (CW-03) in his cross-examination admitted that: "It come on surface during investigation that deceased Razia Bibi was mother-in-law of brother of accused Shahid. As per record, daughter of deceased Razia Bibi is living happily in the house of Azam, brother of accused Shahid. It came on surface during investigation that Anum Bibi daughter of deceased Razia Bibi contracted court marriage with Yasir Pathan. It also came on surface during investigation that parents and other family members of Anum Bibi were not happy upon contracting of court marriage with Yasir Pathan. The said factum was also recorded during investigation conducted on 07.11.2019. It did not come on record whether deceased Razia Bibi and her husband Liaqat had been living separately in different houses. It did not come on record that Liaqat, the husband of deceased Razia Bibi intended to commit her murder. It did not come on record that Liaqat (husband of deceased Razia Bibi) was found involved in the occurrence during investigation and he was not challaned upon asking of complainant party."16. Thus, the prosecution has not established the motive. If the appellant did have motive to kill the deceased, then why didn't he do the same in the past when he and his family were demanding the hand of complainant's sister for the last one year. Thus, we are of the view that, in the absence of any other corroborating evidence, it does not appear to be a sound and reasonable motive as stated by the prosecution for the commission of the offense. It is cardinal principle of criminal justice that the prosecution has to suffer if set up a motive but fails to prove the same. Reliance is placed on Tajamal Hussain Shah v. The State and another (2022 SCMR 1567).
17. As has been discussed about the motive part of the prosecution story in the preceding paragraph that prosecution failed to prove the motive and perhaps for this reason the prosecution in order to cover up such flaws through the private complaint tried to introduce the specific time, date, venue of the place of abetment as well as through the statements of Muhammad Ashraf (PW-3) and Ijaz Ali (given up being unnecessary) who were alleged to have seen the accused persons on 01.10.2019 at about 08:00 p.m while sitting in the baithak of co-accused Ibraheem where Ibrahim and Nazim were asking to Shahid alias Shahidi appellant that they demanded time and again the hand of daughter of Liaqat Ali for marriage but the wife of Liaqat Ali, Razia Bibi (deceased) refused to do so and they intended to take the revenge. Muhammad Ashraf (PW-3) in his examination-in-chief stated that thereafter he went to the house of Faiz Miran and informed him about the abetment of the accused persons. He in his cross-examination admitted that his name was not mentioned as witness in the FIR rather his statement was recorded by the I.O. during investigation on 22.12.2019 i.e. after about two months and twenty days of the occurrence. He further stated that Saddam Hussain complainant was his nephew (Bhanja). Firstly, this witness has not come with any solid explanation about his presence at the place of abetment, where abetment was being made; secondly, it does not appear to be convincing that accused while hatching conspiracy of a murder would not have taken care that if anybody was hearing their such conversation and thirdly, if this witness had actually heard the conversation regarding the murder, he would not have sit back to disclose such fact to the complainant well before time rather after about two months and twenty days of the occurrence. No such fact was disclosed by this witness to the complainant even when occurrence had taken place and FIR stood registered, rather he woke up from slumber only when the complainant had filed the private complaint so long after the registration of case and completion of investigation by the police. Even otherwise, the evidence of abetment has already been discarded by the learned trial court in the manner that accused of such abetment have been acquitted, for quite valid and cogent reasons.
18. As regards recovery of crime weapon on the lead of accused/appellant, we have observed that according to the prosecution case the accused/appellant had succeeded in fleeing away from the place of occurrence along with crime weapon and then on his arrest he was said to have got recovered the crime weapon i.e. .30 bore pistol from an iron box lying in a room of his residential house. Firstly, it is not believable that an accused having committed a serious crime like murder and successfully managing escape along with crime weapon, would keep it safe for its subsequent recovery and use against him as evidence, After the arrest of accused/appellant on 24.10.2019 the crime weapon i.e. pistol .30 bore was shown recovered on his lead, and the PFSA report (Ex.PL) has been received in the positive but the fact remains that when we have already disbelieved the ocular account, such recovery would not be sufficient for recording conviction of an accused on capital charge, because this type of corroborative evidence is always taken into consideration along with direct evidence. In case titled "Noor Muhammad Versus The State" (2010 SCMR 97) it has been held by the Supreme Court of Pakistan that recovery of crime weapon even with matching report of PFSA is only corroborative piece of evidence, which by itself is not sufficient to record conviction.
19. Moreover, we have already disbelieved the evidence of Muhammad Aslam, (PW-2) to the extent of ocular account, thus, his evidence also cannot be believed as corroborative piece of evidence to the extent of seizure of blood stained earth, empties of .30 bore pistol, photographs and motorcycle by the investigating officer during the investigation of this case. Even otherwise, it is not safe to rely on such a piece of prosecution evidence, which even otherwise 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.
Reliance is placed upon the case law titled as "Mian Sohail Ahmad and others vs. The State and others" (2019 SCMR 956).
20. To sum up the above findings, it is noted that: there is unexplained delay in lodging the F.I.R; the marked unexplained delay in the postmortem examination; there are contradictions in the ocular and medical account; the eyewitness are chance witnesses and they have also made dishonest improvements in their testimonies; the medical evidence is in conflict with the ocular account; recovery is ineffective and is of no consequence the motive behind the occurrence is far from being proved and almost non-existent, and the lack of any cogent and reliable evidence adduced by the prosecution in support of the reason advanced for their presence by the complainant are all strong circumstances which create a serious dent in the prosecution's case qua the presence of the eyewitnesses at the time and place of occurrence. Thus, when the very presence of the eyewitnesses is doubtful, then the veracity of their testimony would surely fall short of credence to saddle capital punishment upon the present appellant. Reliance is placed on Muhammad Rafique alias Feeqa v. The State (2019 SCMR 1068).
21. For what has been discussed above, we have no doubt to hold that here in this case the prosecution has miserably failed to establish the charge against the accused/appellant beyond any shadow of doubt. In the cases of "KHIAL MUHAMMAD Versus The STATE" (2024 SCMR 1490) & "MUHAMMAD IJAZ alias BILLA and another Versus The STATE and others" (2024 SCMR 1507), the Supreme Court of Pakistan has held that for giving benefit of doubt to an accused a single circumstance creating reasonable doubt in a prudent mind about guilt of accused is sufficient to make him entitled to such benefit, whereas, in present case numerous doubts have crept into the evidence making whole edifice of prosecution unreliable. Thus, the prosecution has squarely failed to bring home the guilt against the accused/appellants.
22. Consequently, Crl. Appeal No. 848 of 2022 is allowed, impugned judgment of conviction & sentence is set-aside and the accused/ appellant is acquitted of the charges against him. He shall be released forthwith if not required to be detained in any other case. The case property, if any, be disposed of in accordance with law, and record of the learned trial Court be sent back immediately.
23. Murder Reference No.234 of 2021 is answered in the NEGATIVE and the sentence of death awarded to Shahid alias Shahidi (appellant) is NOT CONFIRMED.
24. In view of above discussion, Crl. P.S.LA. No.846 of 2022 filed by the complainant against the acquittal of co-accused Nazim Hussain and Ibrahim as well as Crl. Revision No.847 of 2022 for enhancement of amount of compensation awarded to the appellant, having no merits are dismissed.