AALIA NEELUM, C.J: - The appellant-Muhammad Waqas alias Vicky, son of Waqar Alam, Caste Meo, resident of Near Sabzi Mandi Kot Radha Kishan, Kasur, presently resident of Bacho-Ki-Majha Tehsil Raiwind, District Lahore, was involved in case F.I.R. No.539 of 2011, dated 23.07.2011, registered under Sections 302, 324, 34 P.P.C., at P.S. Kot Radha Kishan, District Kasur and was tried by the learned Additional Sessions Judge/Judge MCTC, District Kasur. The trial court seized with the matter in terms of the judgment dated 14.10.2020, convicted Muhammad Waqas alias Vicky (the appellant) under Section 302 (b) PPC, and sentenced to Death as Tazir for committing Qatl-e- Amd of Ali Hassan (the deceased), with the direction to pay compensation of Rs.2,00,000/- to the legal heirs of the deceased as envisaged under section 544-A of Cr.P.C and in case of default thereof, to undergo 06 months S.I further.
2. Feeling aggrieved by the trial court's judgment, Muhammad Waqas alias Vicky, the appellant, has assailed his conviction and sentence by filing the instant jail appeal bearing Criminal Appeal No.59064-J of 2020. The trial court also referred the M.R. No.134 of 2020 (The State vs. Muhammad Waqas alias Vicky) to confirm the death sentence awarded to the appellant. Both the matters arising from the same judgment of the trial court are being disposed of through a single judgment.
3. The prosecution story, as alleged in the F.I.R (Ex.PC) lodged on the application (Ex.PJ) of Muhammad Younas (PW-11)-the complainant, is that on 22.07.2011 at about 08:30 p.m, his (PW-11) real nephew Ali Hassan (the deceased) after purchasing mobile easy-load from the Public Call Office nearby his house located in Mohallah Mirza Moazam Baig Street, was returning to his house; suddenly, three unknown persons while boarding on a Honda 125 motorcycle came there, out of whom two persons sitting on the rear seat started firing with their respective pistols at Ali Hassan; one fire landed below the umbilicus (belly button) of Ali Hassan, second fire hit the left side of his chest, while third fire landed on upper part of his left arm and fourth fire landed on the back of his right shoulder, who fell down; a fire shot made by the accused persons also hit neighbor namely Sheikh Hamza, who became injured, while complainant's nephew succumbed to the injuries at the spot; after committing the occurrence, the accused persons fled away from the spot; the occurrence was witnessed by Muhammad Shafique (PW-12) and Muhammad Rizwan (PW-10).
Later, through a supplementary statement (Ex.PK), the complainant (PW-11) nominated Muhammad Waqas alias Vicky (the appellant), along with one Shoaib (since acquitted) and Hamza Sajjad (since acquitted) in the instant case.
4. After the incident, the complainant reported the matter to the police through a written application (Ex. PJ). After that, a formal F.I.R. (Ex. PC) was chalked out by Muhammad Aslam, S.I.
(PW-5). After registering the case, the investigation was entrusted to Tanveer Hussain, S.I. (PW-14), who found the accused/appellant guilty, prepared a report under Section 173, Cr.P.C., and sent the same to the court of competent jurisdiction. On 13.11.2019, the trial court formally charge-sheeted the appellant, to which he pleaded not guilty and claimed trial. In support of its version, the prosecution produced as many as fourteen (14) witnesses.
5. The ocular account, in this case, has come out from the statements of Muhammad Younas (PW- 11)-the complainant, Muhammad Rizwan (PW-10) and Muhammad Shafique (PW-12)-the eyewitnesses, whereas Dr. Hafeez Ullah M.O (PW-2), who conducted the postmortem examination of Ali Hassan (the deceased) found the following injuries on his person: - INJURIES 1-A An entry wound: A lacerated wound 1/2 x 1/2 cm at the front of the left side of the chest, 4 cm above the left nipple, at the level of the nipple. The blackening was present 7 cm from midline.
Margins were inverted.
1-B An exit wound: A lacerated wound 2 x 2 cm at the back of the right side of the chest, uppermost part, in between 3 cm from the right scapula, 4 cm from the vertebral column. Margins were everted.
2-A An entry wound: A lacerated wound 1 x 1 cm at the front of the left forearm, 8 cm below the left elbow joint, blackening was present. Margins were inverted. No exit wound because the bullet was recovered from the back of the left forearm.
3-A An entry wound: A lacerated wound 2 x 2 cm at the front of the abdomen, 4 cm below the umbilicus at the level of the midline. No exit wound.
4. An abrasion 5 x 3 cm at the outer side of the lower right leg.
After conducting the postmortem examination of Ali Hassan (the deceased), the doctor opined that the deceased died due to excessive hemorrhage and shock caused by injury to the left lung, stomach, and large & small intestines, which were sufficient to cause death in the ordinary course of nature. All injuries were ante mortem in nature and caused by a firearm weapon. The statements of the remaining prosecution witnesses are formal.
6. The learned Deputy District Public Prosecutor closed the prosecution evidence after tendering reports of the Punjab Forensic Science Agency (Ex. PP/1, Ex. PQ, and Ex. PR).
7. The appellant was also examined in terms of Section 342 Cr.P.C., wherein he neither opted to appear as his own witness in terms of Section 340(2) Cr.P.C., nor opted to produce evidence in his defence. In response to a particular question about why this case was against him and why the PWs deposed against him, the appellant made the following depositions: - "That the complainant Muhammad Younas PW-11 is the real uncle of Ali Hassan deceased, Muhammad Shafique PW-12 and Muhammad Rizwan PW-10 are the cousins of Ali Hassan deceased. Prosecution case is full of doubts. There are many discrepancies in the prosecution case. Both the alleged eye witnesses have totally failed to establish their presence at the crime scene. The conduct of PWs are unnatural and does not appeal in prudent mind. No independent evidence is available to support the prosecution case. My co-accused Shoaib alias Shoaibi has been acquitted from Hon'ble Lahore High court Lahore in instant case on the basis of same set of evidence. Complainant PW11 involved me in this case due to friendship with co-accused Shoaib alias Shoaibi (since acquitted). Complainant and PWs have inter-se relation with each other and on the asking of complainant PWs deposed against me to strengthen the prosecution case."
8. After evaluating the evidence available on record and considering the arguments advanced by both sides, the trial court found that the prosecution's version was proven beyond a reasonable doubt, resulting in the appellant's conviction and sentence in the above-stated terms.
9. We have carefully considered both sides' rival submissions and thoroughly reviewed the evidence on record.
10. According to the prosecution case, the incident occurred on 22.07.2011 at 08:30 p.m. in the street of Mohallah Mirza Moazam Baig, which falls within the territorial jurisdiction of Police Station Kot Radha Kishan, Kasur. The matter was reported to the police by Muhammad Younas (PW-11), the complainant and paternal uncle of Ali Hassan (the deceased), at 04:00 a.m. on 23.07.2011. The distance between the police station and the place of occurrence is 03 kilometers. Tanveer Hussain S.I. (PW-14), the investigating officer, deposed during cross-examination that: - "The inter-se distance between the place of occurrence and the police station is about 3/4 km. the police post is nearer the place of occurrence as compare to the police station. It took 10/15 minutes while reaching to the place of occurrence from police station."
Contrary to the contents of the written application (Ex. PJ), Muhammad Younas (PW-11)-the complainant deposed during examination-in-chief that: - "Stated that on 22.2011 I heard that my nephew Ali Hassan sustained bullet injury, I went to the house of Ali Hassan from where I heard that injured had been taken to Noor hospital and when I reached at Noor Hospital I observed that my nephew Ali Hassan was being placed in a vehicle. I took him to Jinah Hospital Lahore the doctors confirm the death of Ali Hassan at Jinah Hospital and we returned back alongwith the dead body."
Muhammad Younas (PW-11)-the complainant deposed during cross-examination that: - "I reached Noor hospital after Maghrib prayer time. When I reached Noor Hospital I observed that Ali Hassan in injured condition was being placed in the vehicle and I have not tried to identify the person present there.------ We admitted the injured Ali Hassan in Jinnah hospital, Lahore and Medical Officer confirmed his death at that time. On 23.07.2011 we reached Jinnah hospital Lahore at about 01:00 am.-------We left Jinnah hospital, Lahore at about 02:30 am and reached place of occurrence at about 03:30 am."
The mandatory requirements under the law, specifically to inform the police of the unnatural death of the deceased, were not fulfilled. The police should be notified that, according to Section 44 of the Criminal Procedure Code, 1898, the attending medical officer is legally obligated to inform them about the arrival of a medico-legal case. Any failure to report such an occurrence may lead to prosecution under Sections 187 and/or 202 of the Pakistan Penal Code, 1860. No record indicates that the deceased was admitted to or referred to Jinnah Hospital, Lahore, and that the medical examination was conducted. The mandatory requirements under the law to inform the police of the medico-legal case and the unnatural death of the deceased were not fulfilled. It is not possible that if a police case comes to the hospital, the medical officer will not inform the police about it, rather after declaring unnatural death at Jinnah Hospital, Lahore by the medical officer, the doctors neither informed the police about the receiving of injured in serious condition nor they intimated to police about the unnatural death of Ali Hassan. Instantly, they allowed Muhammad Younas (PW11)-the complainant to take away the dead body from the hospital. Muhammad Younas (PW- 11)-the complainant was unable to refer to any document or reference slip or any document of admission, discharge, or handing over of a dead body by the hospital authorities. Muhammad Younas (PW-11)-the complainant deposed during cross-examination that: - "It is not in my knowledge that whether Medical Officer has given any documents of admission or discharge of deceased, however, the same were not delivered to me. Alongwith me in the vehicle where injured was taken to Jinnah hospital, Lahore one brother of the deceased Ali Raza and the driver of the vehicle were present.
Tanveer Hussain S.I. (PW-14)-the investigating officer deposed during cross-examination that: - "During investigation it came into my knowledge that after the occurrence complainant Muhammad Younas took Ali Hassan to Jinnah hospital, Lahore. Complainant did not present any admission or discharge slip of Ali Hassan to me of Jinnah hospital, Lahore."
Muhammad Younas (PW-11)-the complainant also deposed during cross-examination that: - "It is correct that on the night of occurrence I had not visited the place of occurrence."
If the complainant (PW-11) had not visited on the night of the incident at the place of occurrence, then how did he bring back the dead body to the place of occurrence, as he deposed during cross-examination, reiterated above? Ali Zaman 1770/C (PW-4), who escorted the dead body of Ali Hassan (the deceased) to DHQ Hospital, Kasur and deposited the same in the dead house, deposed during cross-examination that: - "The dead body was handed over to me at about 10:00 p.m. (night) on 22.7.2011. it is correct that when dead body was handed over to me I was not having copy of the FIR. It is correct that when I deposited the dead body at DHQ Hospital Kasur in the dead house I did not hand over the copy of FIR to the doctor."
The deposition of Ali Zaman 1770/C (PW-4) reveals that the prosecution witnesses deliberately concealed the facts and that the FIR was not registered as stated. This fact also gets support from the testimony of Tanveer Hussain S.I. (PW-14)-the investigating officer, As per the statement of Tanveer Hussain S.I. (PW-14)-the investigating officer, on entrustment of investigation on 23.07.2011, he (PW-14) reached the place of occurrence and met with complainant and four PWs, inspected the dead body and prepared inquest report (Ex.PL) alongwith other documents, the relevant portion of the examination-inchief is as under: - "On 23.07.2011 I was posted at P.S Kot Radha Kishan as incharge choki of the said P.S. On the same day the investigation of instant case was entrusted to me. I alongwith police official visited the place of occurrence. At the spot complainant alongwith four PWs was already present. I inspected the dead body, prepared inquest report Ex.PL, drafted application for postmortem Ex.PM and prepared injury statement of Ali Hassan deceased Ex.PN."
On perusal of the inquest report (Ex.PL), it reveals that the information about the incident was received on 22.07.2011 at 08:40 p.m., and the dead body was identified by Muhammad Hanif and Ali Raza (PW-6). Ali Raza (PW-6), who is the brother of Ali Hassan (the deceased), deposed during his examination-in-chief that he identified the dead body of Ali Hassan (deceased) at the time of autopsy. More significantly, the time of the incident and the reporting to police claimed by the prosecution become doubtful. In the inquest report (Ex.PL), which was prepared at 08:40 p.m. on 22.07.2011, Tanveer Hussain S.I. (PW-14), the investigating officer, mentioned in Column No.4 the names of the persons who identified the dead body of Ali Hassan (deceased). On the last page, the names of respectable individuals are mentioned in the last column of the inquest report (Exh.PL) as Muhammad Hanif and Ali Raza (PW-6). This outrightly suggests that Muhammad Younas (PW-11), the complainant, Muhammad Rizwan (PW-10), and Muhammad Shafique (PW-12) eyewitnesses were not present when the inquest report in this case was prepared. These circumstances suggest to us that the FIR was antedated. This also indicates that the inquest report of the dead body of Ali Hassan was not prepared at the time it is alleged to have been recorded, creating doubt about the time of occurrence. Ali Raza (PW-6) had not stated that he identified the dead body at the place of occurrence. Tanveer Hussain S.I. (PW-14)-the investigating officer deposed during cross- examination that: - "It is correct that on the last page of inquest report the name of Ali Raza and Muhammad Hanif are mentioned. It is correct that the name of Shafique and Rizwan are not mentioned in the said column."
In the inquest report (Ex.PL), in a column of brief facts of the case, the contents of the complaint (Ex.PJ) are reiterated, which reveal that Ali Hassan, the nephew of the complainant, died at the spot, and the FIR (Ex.PC) was registered on 22.07.2011. The commencement of the inquest is written as "08:40 p.m. on 22.07.2011". The person preparing the inquest report could not have written anything about an event that had not yet taken place. We do not doubt that the investigating officer holding the inquest mentioned the date of lodging the FIR as "22.07.2011". At the end of the brief history column, Tanveer Hussain, SI (PW-14), the investigating officer, wrote the date below his signature. However, there is overwriting/interpolation over the date of preparation of the inquest report (Ex.PL), as the date mentioned was 22.07.2011, which was overwritten to 23.07.2011. According to the prosecution's case, the FIR was registered on 23.07.2011 at 04:00 a.m. In addition, according to column No.1 of the inquest report (Ex.PL), the body was found in "Gali Mirza Moazzam, Medina Market, Kot Rada Kishan", and according to column No.24, the dead body was lying on the ground.
If the dead body was brought back from the Jinnah Hospital, Lahore, then a prudent mind would not accept that the dead body would be placed in the "Gali". The application for postmortem examination of Ali Hassan, the deceased (Ex.PM), reveals that on "the face of the application", the FIR number was tampered with, and "at the bottom of the application", "under the signatures of Tanveer Hussain, S.I., Incharge Chowki Kot Radha Kishan", and "forwarded", the date was overwritten from 22.07.2011 to 23.07.2011. The scanned copy of the application for postmortem examination (Ex.PM) is as under: Similarly, the injury statement of Ali Hassan, the deceased (Ex.PN), reveals that on the face of the application, the FIR number was tampered with and at the bottom of the application, under the signatures of Tanveer Hussain, S.I., Incharge Chowki Kot Radha Kishan, the date was over-written from 22.07.2011 to 23.07.2011. The scanned copy of injury statement (Ex.PN) is as under:- Tanveer Hussain S.I. (PW-14)-the investigating officer also deposed during examination-in-chief that: - "I also prepared injury statement of injured Hamza Sajjad Ex. PP and sent him alongwith Asad Javed RC to hospital for treatment."
Tanveer Hussain S.I. (PW-14)-the investigating officer deposed during cross-examination that: - "On 23.07.2011 at about 04:30 pm I reached the place of occurrence where complainant, alongwith PWs Shafique and Rizwan etc were present. It is correct that after immediate reaching the place of occurrence I did not record the statement of PWs U/S 161 Cr.P.C."
It is revealed from the injury statement (Ex. PP) of Hamza Sajjad (since acquitted), who was injured, that it was prepared on 22.07.2011 by Tanveer Hussain, S.I. (PW-14), the investigating officer. On the face of the injury statement (Ex. PP), the particulars of the FIR were not mentioned. The scanned copy of injury statement (Ex. PP) is as under: - Due to the infirmities above, the FIR has lost its value and authenticity. It would seriously and adversely affect the prosecution's story. Furthermore, it creates a serious doubt about the prosecution's story, suggesting that Muhammad Younas (PW-11), the complainant, Muhammad Rizwan (PW10), and Muhammad Shafique (PW-12), the eyewitnesses, were not present at the place of occurrence and that facts have been manipulated. Therefore, no reliance can be placed on such testimony to establish the appellant's guilt, which would form the basis for conviction.
11. Dr. Hafeez Ullah, medical officer (PW-2), conducted autopsy on the dead body of Ali Hassan (the deceased) stated that on 23.07.2011 at 11:00 a.m., he conducted autopsy on the dead body of Ali Hassan (the deceased) and duration between injuries and death was immediate and between death and postmortem was 12 to 24 hours. If we go backward, the incident could have taken place between 11:00 p.m. and 11:00 a.m. on 22.07.2011. Dr. Hafeez Ullah, Medical Officer (PW-2) deposed during cross-examination that: - "The dead body was received in the hospital at 1:30 a.m. (night) on 23.7.2011 but due to inadvertence I have mentioned the date as 22.7.2011. It is correct that the police papers were not produced before me when dead body of the deceased was received in the hospital. I received the police papers at 10:00 a.m. on 23.7.2011, which was produced before me by Ali Zaman constable."
In the postmortem report (Ex. PB), the entries in the column regarding the date and time of death and the receipt of the dead body in the mortuary indicate an addition of 'p.m.' alongside 'a.m.' in the section of the date and time of death, which is noted as 22.07.2011 at 01:30 a.m. To reiterate, Muhammad Younas (PW-11)-the complainant clearly stated that they left Jinnah Hospital at 02:30 a.m. on 23.07.2011 and arrived at the place of occurrence at 03:30 a.m. on 23.07.2011, whereas the doctor (PW-2) testified that he received the dead body at 01:30 a.m. on 23.07.2011. This raises doubts about the testimony of Muhammad Younas (PW-11)-the complainant.
12. There is another aspect of the case, which also casts a cloud of doubt on the prosecution's case.
The prosecution story, as alleged in the F.I.R (Ex.PC) lodged on the application (Ex.PJ) of Muhammad Younas (PW-11)-the complainant, is that the complainant's nephew Ali Hassan was returning home after getting an easy load from the public call office located near his house in Mirza Moazzam Back Street when suddenly three unknown persons riding a Honda 125, two of whom were sitting behind, started firing with their pistols, which hit Ali Hassan in front of his navel, on his chest on the left side, on his left arm and behind his right shoulder. He fell, bleeding profusely.
At the same time, a nearby resident, Sheikh Hamza (since acquitted), was also shot and injured by the accused persons, while the complainant's nephew died on the spot. Muhammad Shafiq (PW- 12), son of Muhammad Shafi, and Muhammad Rizwan (PW-10), son of Muhammad Rafi, witnessed the murder. Muhammad Younas (PW-11)-the complainant has mentioned these facts in his application to register the case. On 23.07.2011, Muhammad Younas (PW-11)-the complainant introduced a different version in his (PW-11) supplementary statement (Ex. PK), according to which he (PW-11) could not talk to the witnesses and the deceased's family until the case was filed. Due to which he (PW-11) reported the incident against the unknown accused persons. Later, he met with Muhammad Rizwan (PW-10) and Muhammad Shafiq (PW-12), who informed Muhammad Younas (PW-11), the complainant, that they had gone to meet their cousin Ali Raza at his house. Ali Raza's mother told him that he was not at home and said that Sheikh Hamza had called Ali Raza's younger brother, Ali Hassan, from home about seven or eight minutes ago. The witnesses, i.e., Muhammad Rizwan (PW-10) and Muhammad Shafiq (PW-12), were returning and passing through the street when they saw Ali Hassan (the deceased) with Sheikh Hamza Sajjad (since acquitted), a short distance from them. They were at a short distance from the witnesses when suddenly Waqas alias Vicky and Shoaib (since acquitted) and an unknown person came on a Honda 125, black motorcycle with registration number 1865 LZU. Hamza Sajjad (since acquitted) had called Ali Hassan (the deceased) from home after consulting Waqas alias Vicky and others. In panic, the accused also opened fire and injured Hamza Sajjad (since acquitted). They ran the motorcycle over Ali Hassan's (the deceased) leg and escaped. It is clear from the complaint (Ex. PJ), FIR (Ex.PC), and the statement of Muhammad Younas (PW-11), the complainant, that he is not a witness to the occurrence. Muhammad Younas (PW-11), the complainant, states in his supplementary statement (Ex. PK) regarding the two witnesses, Muhammad Rizwan (PW-10) and Muhammad Shafiq (PW-12), that he did not meet them after the occurrence and before registration of the FIR. However, according to the prosecution, both were present at the place of the occurrence immediately after the case was registered and named as witnesses for the recovery memos of the blood-stained earth (Ex. PF) and the recovery memo of crime empties (Ex. PG). Muhammad Younas (PW-11)-the complainant admitted during cross-examination that: - "It is correct that when at morning time on 23.07.2011 PWs Shafique and Rizwan met me I informed them that I have nominated them as eye witnesses of the occurrence."
Muhammad Younas (PW-11)-the complainant deposed during examination-in-chief that he went to the house of Ali Hassan, from where he heard that Ali Hassan received a bullet injury and he had been taken to Noor Hospital. Shamim Akhtar (PW-9), mother of Ali Hassan (the deceased) deposed during examination in chief that, on 22.07.2011 at evening time, Hamza Shehzad (since acquitted) forcibly took his son Ali Hassan from her house and after some time, one boy told her that accused Vicky (the appellant) and Shabi (since acquitted) while riding on motorcycle have caused bullet injuries to her son. She rushed to the place of the occurrence, and people had already escorted her son to Noor hospital, Kot Radha Kishan, and there they came to know that her son had been referred to Jinnah Hospital. During cross-examination, her statement was confronted by the defence with the statement she had made before the police during the investigation. The improvements/contradictions brought on the record by the defence in the statement of Shamim Akhtar (PW-9) during cross-examination are as follows: - "I got recorded in my statement u/s 161 Cr.P.C that a boy told me that the accused Vicky and Shabi while riding on motorcycle have caused bullet injuries to my son, confronted with Ex.DA where it is not so recorded. I got recorded in Ex.DA that the people had already escorted my son to Noor Hospital Kot Radha Kishan, Kasur and there I came to know that my son had been refer to Jinah Hospital Lahore, confronted with Ex.DA where it is not so recorded."
The eye witnesses, i.e., Muhammad Rizwan (PW-10) and Muhammad Shafique (PW-12), deposed in similar lines as stated by Muhammad Younas (PW-11), the complainant in his examination-in-chief and mentioned in supplementary statement (Ex.PK). Muhammad Rizwan (PW-10) deposed that the complainant, Muhammad Younas, is his paternal Uncle, whereas Shafique (PW-12) is his cousin.
While Muhammad Shafique (PW-12) deposed that the complainant is a paternal cousin of his father, and Rizwan PW is his Chacha Zad cousin. The defence confronted the major parts of their statements relating to the facts. Muhammad Rizwan (PW-10) deposed during cross-examination that: - "I have got recorded in my statement Ex.DC that I alongwith Shafique PW went to the house of Ali Hassan deceased. Confronted with Ex.DC where instead of Ali Hassan the name of Ali Raza is written. I got recorded in my statement Ex.DC that mother of Ali Hassan appraised us that Ali Hassan is not present and has gone to play cricket. Confronted with Ex.DC where the word to play cricket is not recorded. I got recorded in ExDC that total four/five fire were opened, out of which four fires were landed on my cousin Ali Hassan. Confronted with Ex.DC where the same is not recorded in this sequence."
Muhammad Shafique (PW-12) deposed during cross-examination that: - "I got recorded my statement u/s 161 Cr.P.C. to the I.O. I got recorded in my statement u/s 161 Cr.P.C that we were going towards the house of Ali Hassan. Confronted with Ex.DB where the name of Ali Raza is recorded. The witness volunteer that Ali Raza is real brother of Ali Hassan. I got recorded in my statement Ex.DB that Ali Hassan sustained four bullets injuries. Confronted with Ex.DB where the number of injuries is not recorded. I have got recorded in ExDB that on 23.07.2011 at about morning time 05:30 am Muhammad Younas met us and we appraised him about the occurrence. About the occurrence the I.O, got drafted application on the spot.
Confronted with Ex.DB where it is not recorded."
Thus, it becomes clear that the statements of Muhammad Rizwan (PW-10) and Muhammad Shafique (PW-12) contain significant contradictions. Another aspect of the case creates doubt about the prosecution's case. Muhammad Rizwan (PW-10)-the eyewitness deposed during cross- examination that: - "It is correct that after the occurrence Shamim Akhtar PW reached at the place of occurrence."
Muhammad Shafique (PW-12)-the eyewitness deposed during cross-examination that: - "After the occurrence many people were gathered at the place of occurrence and I do not remembered their names. It is correct that Ali Raza reached there. Shamim Akhtar did not come at that time."
Being close relatives of the deceased, Ali Hassan, the conduct of Muhammad Rizwan (PW-10) and Muhammad Shafique (PW-12) also raises a cloud of doubt about their presence at the scene.
Muhammad Rizwan (PW-10) deposed during cross-examination that: - "I did not escorted the Ali Hassan in injured condition to the hospital. It is correct that thereafter I did not go the house of Ali Hassan deceased. I have not made any telephonic call at rescue 15 regarding the occurrence. I did not go to the police station for getting registered the FIR. I have not made any telephonic call to the complainant."
Muhammad Shafique (PW-12) deposed during cross-examination that: - "It is correct that I and Rizwan PW did not took the Ali Hassan deceased in injured condition to the hospital. It is correct that we did not go to the house of Ali Hassan deceased thereafter on that night. It is correct that we did not informed the police about the occurrence on that day. The witness volunteer that we informed the police on the following morning. It is correct that on that night we have not made contact with the complainant about the occurrence. On that day we returned to our house at about 09:00/09:15pm. ------------------------ I did not visit the house of Ali Hassan on that day."
Both the prosecution witnesses, i.e., Muhammad Rizwan (PW-10) and Muhammad Shafique (PW- 12), admitted that they are close relatives of the deceased, but they did not bother to accompany Ali Hassan to the hospital or inform his family members; rather, they formally went back to their houses. This unnatural conduct of both the prosecution witnesses also throws cloud of doubt that these prosecution witnesses were later on maneuvered to support the prosecution story, which was manufactured to cover the delay in reporting the incident, as Dr. Hafeez Ullah, Medical Officer (PW-2) deposed during examination-in-chief and mentioned in postmortem report (Ex.PB) that the duration between injuries and death was immediate. In addition, the statement of Shamim Akhtar (PW-9), mother of Ali Hassan (the deceased), was recorded on 05.08.2011. Tanveer Hussain S.I. (PW- 14)-the investigating officer deposed during cross-examination that: - "In the statement of Shamim Bibi dated 05.08.2011 the name of accused Waqas alias Wiki is not mentioned."
13. As far as motive is concerned, it is a double-edged sword that cuts both sides/ways. Muhammad Younas (PW-11)-the complainant deposed about the motive behind the occurrence during cross-examination that: - "It is correct that I have mentioned the motive part of the occurrence in application Ex.PK, i.e., that a few days prior to the occurrence, Waqas alias Viki and Shoaib alias Shoaibi quarreled with my nephew Ali Raza, and as the deceased Ali Hassan and Ali Raza are similar in physique and appearance, therefore, the accused persons have committed the murder of Ali Hassan, my nephew. It is correct that the same motive is not mentioned in application Ex.PJ. It is correct that no date, time and witness of the motive part is mentioned in Ex.PK. It is correct that the eye witnesses nominated in Ex.PJ and Ex.PK are same."
Admittedly, Muhammad Younas (PW-11)-the complainant has not mentioned the motive in his application (Ex.PJ) for registration of the case. Rather, the complainant (PW-11) introduced the motive through his supplementary statement (Ex.PK). Even the prosecution witnesses, i.e., Muhammad Rizwan (PW-10) and Muhammad Shafique (PW-12), have not uttered a single word about the motive part of the occurrence. In addition, during the investigation, the prosecution has introduced motive through the statement of Irfan Yousaf (PW-13). Irfan Yousaf (PW-13) deposed during his examination in chief that on 04.09.2011, he alongwith his uncle (Taya) Muhammad Younas (PW-11)-the complainant, Khalid and ten other persons went to P.S. Kot Radha Kishan, where the investigating officer was interrogating Waqas alias Vicky (the appellant), who (the appellant) stated that he suspected that Ali Raza PW used to tease his sister Huma; the appellant further stated that Ali Hassan (the deceased) and Ali Raza both brothers resembled with each other and due to their resemblance Ali Hassan was murdered by him. It is an admitted fact that a written complaint (Ex. PJ) does not disclose the motive for the offence. The complainant introduced the motive through his supplementary statement (Ex.PK). However, the prosecution failed to lead any witness in support of the motive mentioned in the supplementary statement (Ex.PK) and deposed by Muhammad Younas (PW-11)-the complainant. Rather, a new motive has been introduced by the prosecution through Irfan Yousaf (PW-13). As is evident from the above deposition, the prosecution has failed to prove the motive part of the occurrence, which is shrouded in mystery. Thus, the prosecution has failed to provide evidence of a clear motive. Motive is a double-edged weapon for the occurrence and false implication. There are always different motives that operate in the mind of a person in making false accusations.
14. As far as recovery of the weapon of offence, i.e., pistol 30-bore (P 5) alongwith two live bullets (P-6/1-2) on the pointing of Muhammad Waqas alias Vicky (the appellant), on 29.08.2011 and positive report of Punjab Forensic Science Agency (Ex.PR) is concerned, as per the prosecution case, on 23.07.2011, Tanveer Hussain S.I. (PW-14)-the investigating officer inspected the place of occurrence and secured four empties of pistol 30-bore (P4/1-4) through recovery memo (Ex.PG).
On 22.08.2011, the appellant, Muhammad Waqas alias Vicky, was arrested. Upon the disclosure of the appellant-Muhammad Waqas alias Vicky, on 29.08.2011, pistol 30-bore (P-5) along with two live bullets (P-6/1-2) were recovered by Tanveer Hussain, S.I. (PW-14)-the investigating officer who secured the same into possession through a recovery memo (Ex. PH). As per recovery memo (Ex.PG), statedly recovered pistol alongwith two live bullets were secured into the parcel, which was sent for comparison with the empties secured from the place of occurrence. However, perusal of the Firearms & Tool marks Examination Report (Ex.PR), reveals that the parcel which was submitted over there regarding allegedly recovered weapon was only containing the pistol but live bullets has not been mentioned as available in the said parcel, which state of affairs lead to the safe conclusion that the parcel which was prepared at the time of recovery of pistol with live bullets was not sent over there and thus safe custody of said parcel has been compromised as well as not proved, which ultimately makes the aforementioned report (Ex.PR) as inconclusive/inconsequential and thus of no help to the prosecution.
15. From the detailed discussion above, we are convinced that the prosecution has failed to establish its case. The debris obscured the truth, and a different story was constructed to bring the appellant to trial for a serious offense. It is often said, "The more severe the crime, the higher the standard of proof." After re-examination of all the material, we found reasons, as stated above, to disagree with the conclusion reached by the Additional Sessions Judge. We also found that the prosecution had miserably failed to prove the accused's guilt beyond a reasonable doubt.
According to the dictates of the law, the benefit of every doubt must be extended in favor of the accused. In the case of "Muhammad Akram v. The State" (2009 SCMR 230), it is held as under: - "The nutshell of the whole discussion is that the prosecution's case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCM R 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right.".
16. We, therefore, accept in toto Criminal Appeal No.59064 of 2020 filed by Muhammad Waqas alias Vicky, son of Waqar Alam, Caste Meo, resident of Near Sabzi Mandi Kot Radha Kishan, Kasur, presently resident of Bacho-ki-Majha Tehsil Raiwind, District Lahore; as a result, whereof conviction and sentence recorded by the trial court vide judgment dated 14.10.2020 is set aside and the appellant, namely Muhammad Waqas alias Vicky is ordered to be acquitted of the charge in case F.I.R. No.539/2011 dated 23.07.2011, under Sections 302, 324, 34 P.P.C., at Police Station, Kot Radha Kishan, District, Kasur and he (the appellant) is directed to be released forthwith if not required in any other case.
17. Murder Reference No. 134 of 2020, forwarded by the trial court for confirmation of the death sentence imposed upon the convict, is answered in the negative and death sentence is not confirmed.