ASJAD JAVAID GHURAL, J. Through Criminal Appeal No.77569/2019 appellant Wishal Munawar has challenged the vires of judgment dated 13.12.2019 passed by the learned Additional Sessions Judge, Daska in case FIR No.224/19, dated 12.08.2019 in respect of offence under section 302, P.P.C. registered at P/S Bambanwala, District Sialkot whereby he was convicted and sentenced as under:- Under Section 302(b), P.P.C.
Death and to pay the compensation amounting to Rs.5,00,000/- to the legal heirs of deceased under Section 544-A, Cr.P.C and in default thereof to further undergo simple imprisonment for six months.
2. Murder Reference No.401/2019 for confirmation or othenvise of death sentence of appellant Wishal Munawar shall also be decided through this common judgment.
3. The prosecution story unfolded in the crime report (Ex.PE) registered on the complaint (Ex.PK) of complainant Muzaffar Hussain (PW-11) is that on 12.08.2019 at about 02:00 p.m, on the day of Eid-ul- Adha, he was present in his house, meanwhile, appellant Wishal Munawar came there and called his paternal nephew Awais Zafar and took him on motorbike Honda-125, who did not turn back within 15/20 minutes, which raises his eye-brow, as such he along with his brother Ghulam Mustafa and brother-in-law (Behnoi) Muhammad Sajjad (PW-12), went towards the house of Wishal Munawar. When they reached near his house, they heard noise of quarrel from the Baithak of said house, outer gate of the Baithak was opened, as such they entered inside and in their view, appellant Wishal Munawar made a fire shot with the intention to kill Awais Zafar, which landed on his chest due to which he became injured seriously. They took Awais Zafar to Civil Hospital, Daska in injured condition wherefrom he was referred to DHQ, Gujranwala, where he succumbed to the injuries.
4. Nasir Mehmood, S.I. (PW-15)/Investigating Officer proceeded to THQ Hospital Daska where dead body of the deceased was lying, he prepared injury statement (Ex.PN) and inquest report (Ex.PP) of Awais Zafar deceased, He proceeded to the place of occurrence where complainant appeared and filed supplementary statement that due to inadvertence only one fire shot was mentioned in the complaint, in fact appellant made two fire shots, so he penned down the same under Section 161, Cr.P.C. He secured blood stained earth from the place of occurrence vide memo. (Ex.PH), inspected the crime scene and prepared un-scaled site plan (Ex.PR), he secured crime empty from the place of occurrence and took into possession through recovery memo. (Ex.PJ) and recorded the statements of FWs and took all necessary steps for initial investigation. He arrested the appellant Wishal Munawar on 18.08.2019 who during investigation led to the recovery of pistol .30- Bore (P-5) and three live cartridges P.6/1-3 which were taken into possession vide memo. (Ex.PM).
The SHO concerned accordingly submitted the report under section 173, Cr.P.C.
5. Dr. Ghulam Subhani, (PW-13) examined Awais Zafar while in injured condition on 12.08.2019 and observed two fire arm injuries on his person. He issued MLR No.1170/2019 (Ex.PL).
6. Dr. Abdul Rehman (PW-01) had conducted autopsy on the dead body of deceased Awais Zafar on 12.08.2019 and found 03 injuries on his person including a surgically, created wound. According to his opinion, death occurred due to injuries Nos.1 and 2 which caused damage to major vessels and heart leading to irreversible hemorrhage and shock, cardiopulmonary arrest and ultimately death in ordinary course of nature. The injuries were ante-mortem and caused by fire arm weapon.
The duration between injuries and death was within four hours whereas between death and post mortem examination within nine hours.
7. At the commencement of the trial, the trial Court had framed a charge against the appellant to which he had pleaded not guilty and claimed to be tried.
8. The prosecution had produced 15-witnesses besides the reports of Punjab Forensic Science Agency (Ex.PS and PT). The appellant in his statement recorded under Section 342, Cr.P.C. had denied and controverted all the allegations levelled against him, he opted not to make his statement under Section 340(2), Cr.P.C., however, produced his brother Afzaal Munawar as DW-1 in his defence evidence.
9. Learned trial Court, upon conclusion of the trial convicted and sentenced the appellant as stated above. Hence the aforementioned criminal appeal as well as the connected Murder Reference.
10. Learned counsel for the appellant submits that the appellant is quite innocent and had falsely been entangled in the case in hand; that there was almost nine hours unexplained and inordinate delay in lodging of the crime report; that both the acclaimed eye-witnesses were chance witnesses and they miserably failed to establish their presence at the venue of occurrence at the relevant time; that Muhammad Sajjad (PW-12) was not resident of the locality and his presence at the venue of occurrence at the relevant time, in particular, on the occasion of Eid-ul-Adha does not appeal to reasons; that the ocular account is in conflict with the medical evidence, which also belies the presence of the eye-witnesses at the venue of occurrence; that the appellant, deceased and other cousins of the appellant were sitting in the drawing room; that the deceased was playing with the pistol, when accidentally its trigger went-off and the bullets hit the deceased; that the appellant himself shifted the deceased to the hospital in injured condition and his brother and cousin donated blood to save his life; that if the intention of the appellant was to kill the deceased then there was no occasion for him to shift the deceased to the hospital while in injured condition and also arrange blood for him; that that there was nine hours delay in conducting postmortem examination which indicates that the prosecution story was subsequently maneuvered; that no duration between injury and death as well as death and postmortem is find mentioned by the medical officer in the postmortem report of the deceased; that in the absence of ocular account, recovery of pistol and its positive report lost significance; that no motive was set out in the crime report or at the stage of trial, as such the same remained shrouded in mystery. At the end, a prayer has been made for acquittal of the appellant in the case in hand.
11. Conversely, learned Additional Prosecutor General appearing for the State assisted by learned counsel for the complainant has vehemently argued that it was a broad day light occurrence wherein the appellant is named with specific role of taking the deceased from his house and committed his murder in view of witnesses by making fire shots at his chest; that both the acclaimed eye-witnesses have well established their presence at the venue of occurrence at the relevant time; that presence of (PW-12) in the house of his in-laws on the day of Eid-ul-Adha was not unusual; there was no ill will or any animosity on the part of prosecution witnesses to falsely implicate the appellant qua the murder of their dear one while letting off the real culprit; that the ocular account is in line with the medical evidence as the 2nd fire could not mentioned in the crime report due to typographic mistake which was rectified through supplementary statement; that recovery of pistol at the instance of appellant was subsequently found wedded with the crime empty secured from the place of occurrence, which support the prosecution story; that the appellant in his statement under section 342, Cr.P.C. as well as through defence evidence admitted that the occurrence has taken place in his drawing room, which infact strengthen the prosecution story; that the prosecution has fully proved the charge of homicidal death of the deceased against the appellant beyond shadow of any reasonable doubt; that the judgment impugned warrants no interference by this Court and finally prayed for dismissal of instant appeal and confirmation of death sentence.
12. We have heard learned counsel for the appellant, learned Additional Prosecutor General appearing for the State assisted by learned counsel for the complainant and perused the record with their able assistance.
13. This unfortunate incident took place on 12.08.2019 at about 02:00 p.m but the same was reported to the police at 10:50 p.m with an un-explained delay of 08-hours and 50-minutes. Nothing has been brought on record by the prosecution to justify such lethal delay, in particular, when the distance between the place of occurrence and police station was just four kilometers, as such inference can be drawn that the FIR was lodged after due deliberation, consultation and maneuvering the prosecution witnesses. Reliance is placed on case reported as "Ghulam Abbas and another v. The State and another" (2021 SCMR 23) wherein it has been laid down as under:- "As per contents of FIR, the occurrence in this case took place on 19.06,2008 at 01.40 a.m. and the matter was reported to the police on the same morning at 7.00 a.m. and as such there is a delay of more than five hours in reporting the crime to the Police whereas Police Station was situated at a distance of just six kilometers from the place of occurrence. No explanation whatsoever was furnished by the complainant for this delay in reporting the crime to the police. Hameed Ullah Khan SI (PW.15) who investigated the case during his cross-examination that he reached at the place of occurrence at about 5.00 a.m. and he had completed the police proceedings by 06.30 p.m. In the circumstances, chances of deliberations and consultations before reporting the matter to the Police cannot be ruled out."
Reference can also be made to case reported as "Zafar v. The State and others (2018 SCMR 326)."
14. Complainant Muzaffar Hussain (PW-11)/patemal uncle of the deceased Awais Zafar, while appearing in the dock in the court room, reiterated the contents of the FIR and stated that on the fateful day, he along with his brother Ghulam Mustafa and brother-in-law Sajjad (PW-12) were sitting in their house meanwhile, the appellant came on his motorcycle and took his nephew Awais Zafar with him. After 15/20 minutes they went to the house of appellant to know about Awais Zafar, when they reached near his house, they heard noise of quarrel from inside the house, they entered in the house as the outer gate was opened and in their view the appellant made two fire shots with his pistol hitting at right side of chest and armpit of Awais Zafar who fell down and the appellant succeeded to flee away from the crime scene. They shifted Awais Zafar to Civil Hospital, Daska in injured condition wherefrom the doctor referred him to Civil Hospital, Gujranwala after giving First Aid where he succumbed to the injuries. Muhammad Sajjad (PW-12)/eye-witness while appearing in the dock in the court room also made identical statement.
15. As per prosecution, the incidence has taken place inside the house of appellant, as such presence of the acclaimed eye-witnesses at the venue of occurrence at the relevant time was highly questionable. Reason explained by the eye-witnesses that after lapse of 15/20 minutes when the deceased did not turn back from the house of appellant, they became worried and rushed towards the house of appellant does not appeal to reasons. Admittedly, unfortunate incident has taken place on the occasion of Eid-ul-Adha and in our social set up, usually male friends spend whole day with each other and even till late night and no surprise was ever thrown by the elders qua their absence from the home, as such reasons of the acclaimed eye-witnesses for their attraction at the venue of occurrence is not justified at all.
Another aspect which raises serious question qua presence of the acclaimed eye-witnesses is that the complainant while lodging the FIR (Ex.PE) in an unequivocal terms alleged that the appellant made a single fire shot at the chest of deceased, whereas, according to the post mortem examination report (Ex.PA) there were two fire arm injuries on the person of deceased. Had the acclaimed eye-witnesses been seen the occurrence with their own eyes, such major anomaly would never occur.
Although in order to cover this lacuna, statedly the complainant made a supplementary statement before the Investigating Officer, which was confirmed by Nasir Mehmood SI/I.O (PW-15), who while appearing in the witness box deposed that "Complainant of the case appeared before me and filed a supplementary statement, whereby, he asserted that due to inadvertence, only one fire shot was mentioned in the complaint and actually the same were two fire shots. 1 also penned down his statement under section 161, Cr.P.C to this affect..." but amazingly neither any such statement was brought on record nor the same was exhibited either in the statement of the complainant or the Investigating Officer. We have also searched page to page the entire record but could not find any such supplementary statement. On Court's query, learned Law Officer has also conceded that no I supplementary statement is part of the record. Thus the inference can only be drawn that story of recording of supplementary statement was concocted by the prosecution just to bring the ocular account in line with the medical evidence.
Even if for the sake of arguments, it is assumed that the complainant got recorded any such supplementary statement altering the number of injuries sustained by the complainant cannot be equated with the FIR. Reliance is placed on case reported as "Akhtar Ali and others v. The State (2008 SCMR 6)", wherein it has been laid down as under: - "It is also settled law that FIR is the document which is entered into under section 154, Cr.P.C. book maintained at the police station at the application of the complainant. It brings the law into motion. The police under section 156, Cr.P.C., started investigation of the case. Any statement or further statement of the complainant recorded during investigation by the police would neither be equated with FIR not read as part of it, therefore, subsequent supplementary statement of the complainant recorded during investigation by the police would neither be equated with the FIR nor read as part of it, therefore, subsequent supplementary statement is also considered as statement recorded under section 161, Cr.P.C. which is not signed or thumb-marked as held by this Court in Khalid Javed's case (supra)."
Moreso, in case reported as "Kashif Ali v. The Judge, Anti-Terrorism, Court No.11, Lahore and others (PLD 2016 SC 951)" the Apex Court has observed that the supplementary statement of the complainant has no legal value and inadmissible in evidence.
Another aspect which belies the presence of the eye-witnesses is that according to the prosecution story on attraction of noise, acclaimed eye-witnesses along with one other, entered into the house of the appellant and in their view he made a fire shot and skipped from the scene. It is beyond comprehension that if three young men saw quarreling their dear one and they neither intervened nor even attempted to apprehend the culprit, who made fire shot upon their dear one.
Last but not the least, although it was the claim of the acclaimed eye-witnesses that they shifted the injured to the hospital but the MLC of the deceased while in injured condition (Ex.PL) does not reflect the name of the person, who was accompanying the injured at that time. However, pursuant to the order of the Trial Court, Mansha Akbar, Lab Attendant, Blood Bank, DHQ Gujranwala appeared before the Court along with "Blood requisition Form Register" and "Record of Blood Transfusion Services Punjab dated 12.08.2019" and tendered its copies as Lab Attendant Annexure-A and Lab Attendant Annexure-B, respectively. The said documents were public record and its authenticity was never questioned by the prosecution at the time of their admissibility. While going through these documents, it is manifestly clear that the appellant, his brother and cousin were present with the deceased and his brother and cousin even donated blood to the deceased while in injured condition in order to save his life. In our social set up, it is beyond comprehension that in the presence of legal heirs of injured, close relatives of the accused, who allegedly made fire shots, even dare to come to the hospital, what to say about donation of blood. The only inference can be drawn that acclaimed eye-witnesses were not present at the time of shifting the injured to the hospital.
Names of the acclaimed eye-witnesses were neither mentioned in column No.4 of the Inquest Report (Ex.PP) as identifiers of the dead body nor at page number 4 of said report to be the persons in whose presence said report was prepared. Even according to the condition of dead body portrayed in the Inquest Report, the eyes of deceased were completely open while the his mouth was semi opened, which also shows absence of acclaimed eye-witnesses at the venue of occurrence at the relevant, otherwise, it is trite that on coming to know demise of a dear one, first step taken by the legal heirs was to close the eyes and mouth of deceased.
All the above facts recounted above, project a clear picture that both the aforesaid acclaimed eye-witnesses were not present at the venue of occurrence at the relevant time and they were subsequently planted just to knit the net around the neck of the appellant.
16. Dr. Ghulam Subhani Medical Officer (PW-13) conducted medico legal examination of the injured Awais Zafar on 12.08.2019 at 03:00 p.m and observed two fire arm injuries, first on just above the right nipple clotted blood was present at the time of examination, margins were inverted and second on round in shape anterior to right axilla margins were inverted. He provided First Aid to the injured and then keeping in view his critical condition referred him to DHQ Hospital, Gujranwala, where he succumbed to the injures.
Dr. Abdul Rehman (PW-01) had conducted autopsy on the dead body of deceased Awais Zafar on 12.08.2019 and found 03 injuries on his person including a surgically created wound. According to his opinion, death occurred due to injuries Nos.1 and 2 which caused damage to major vessels and heart leading to irreversible hemorrhage and shock, cardiopulmonary arrest and ultimately death in ordinary course of nature. We have observed that in the post mortem examination report of deceased (Ex.PA), the Medical Officer did not fill the column, duration between injury and death as well as death and postmortem and they were kept blank but while appearing in the witness box he deposed that duration between injury and death was within four hours and between death and postmortem within nine hours. It is not understandable that when the column relating to duration between injury and death and death and postmortem were blank, how the Medical Officer while appearing in the dock in the court room was in a position to assess such duration. On our specific query, learned Law Officer is unable to justify just conduct of the Medical Officer, thus inference could be drawn that the Medical Officer while appearing in the witness box improved his version just to strengthen the prosecution story. Even otherwise, as has been discussed supra, according to the ocular account the deceased sustained single fire arm shot, whereas, according to the post mortem examination report, there were two fire arm injuries on the person of deceased, as such medical evidence lends no support to the ocular account.
17. Appellant was arrested on 18.08.2019, who led to the recovery of pistol .30-bore (P-5) on 28.08.2019 which was sent to the office-of Punjab Forensic Science Agency, Lahore for comparison with the crime empties already secured from the place of occurrence and the report of said office (Ex.PS) has been received with positive result to the extent of one cartridge. However, said positive report is of no avail for the reasons that the crime empties secured from the spot were sent to the office of PFSA on 20.08.2019 i.e. subsequent to the arrest of the appellant, as such possibility cannot be ruled out that the same was fired from the pistol after arrest of the appellant just to get positive report against him. Even otherwise, it is well-settled principle of law that once the intrinsic value of ocular account is disbelieved then rest of the corroboratory piece of evidence, even of a higher degree, would automatically be collapsed. A reference is invited to case titled "Riaz Mimed v. The State" (2010 SCMR 846). The relevant portion of the judgment is reproduced for ready reference:- "The prosecution also produced the positive FSL report, meaning thereby, the crime empty secured from place of incident matched with the gun recovered from the possession of the appellant. This being a corroborative piece of evidence, which by itself is insufficient to convict the appellant in absence of substantive piece of evidence."
This view has further been elaborately settled in a case titled "Faqeer Muhammad v. Shahbaz Ali and others" (2016 SCMR 1441), which reads as under:- "After ruling out of the ocular account the other circumstances of the case providing corroboration or support to the ocular account had automatically collapsed. In these circumstances High Court had extended the benefit of doubt to respondent No. 1 and had acquitted him of the charge. Upon our own independent evaluation of the evidence we have not been able to take any legitimate exception to the said conclusion reached by the High Court."
18. The prosecution has not set up any motive either in the crime report or any subsequent stage, as such it needs not to be discussed.
19. Learned counsel for the complainant laid much emphasis that the appellant in his statement recorded under section 342, Cr.P.C and through the defence evidence conceded that the incident is taken place inside his house, which alone is sufficient to bring home the guilt against him. We are not in agreement with this submission. What actually the appellant stated in response to question No.2 when whole of the case was put to him is reproduced for ready reference:- "It is correct. Complainant got registered a frivolous FIR on the basis of baseless and concocted story with the connivance of other alleged PWs. No alleged prosecution PWs witnessed the occurrence. It is established that I and deceased Awais Zafar was old and first friends and no enmity or controversy exists between us. Infact it was Eid-ul-Aza day. I and my real brother Afzaal was present at my house, deceased Awais Zafar came at my house at about 01:20 p.m. he entered in my house from main gate/inner gate while we have no door of drawing room which opens in street or outer side. Deceased Awais Zafar is like my family member so he entered in our house without knock and permission. We were sitting in my drawing room, Awais had his personal pistol with him. Deceased Awais Zafar checking and showing us the features and qualities of his personal pistol at that time suddenly inadvertently fire shot was made by Awais by his own hand and his own pistol, when the direction of barrel was towards his chest side, on that he got injured on chest.
After that I along with real brother Afzaal shifted him to Civil Hospital Daska, one Hussain son of Yousaf also accompanied us with his own motorcycle, as he met us on the way. We shifted deceased Awais in Civil Hospital Daska thorugh my motorcycle. My cousin (phopo Zad) Qamar son of Sadiq also reach in Civil Hospital Daska. Doctor of Civil Hospital Daska referred my friend Awais Zafar to DHQ Hospital Gujranwala without any proper treatment. I informed through call to the family of deceased Awais Zafar about the accidental fire shot by Awais through his own hands. I along with my brother Afzaal, Qammar (Phopo Zad) and Hussnain Shifted Awais Zafar in DHQ Gujranwala. Doctors of DHQ asked us to arrange blood for Awais Zafar. On that my real brother Afzaal and Phopho Zad Qammar donated blood to Awais Zafar regarding which record of DHQ Gujranwala was requisitioned which clearly manifests that I along with my brother did our level best to save the life of my ever best friend. I also got examined my blood group but same was not maiched. I and my brother Afzal tried our best to secure the life of my best and first friend Aawis Zafar but unfortunately he not succumbed to injuries at 5:55 p.m. I and Afzaal explained all the true story of the incident to the complainant and other legal heirs of Awais Zafar but complainant after due deliberation and consultation maneuvered the all story and after delay of 09 hours got registered frivolous FIR."
His defence witness Afzaal Munawar as (DW-1) also adduced evidence on the same lines. It is thus manifestly clear that though the appellant admitted that "the occurrence has taken place in his house but at the same time it was his stance that the deceased was fell prey of his own bullets which accidentally hit him. The law is well settled by now that when the prosecution succeeds, then inculpatory statement of the accused shall be read in support of the prosecution and in case the prosecution fails, the statement of accused shall be taken into toto. Reliance is placed on case reported as "Azhr Iqbal v. The State (2013 SCMR 383)" wherein it has been laid down as under:- "The law is equally settled that the statement of an accused persons recorded under section 342, Cr.P.C. is to be accepted or rejected in its entirety and where the prosecution's evidence is found to be reliable and the exculpatory part of the accused person's statement is established to be false and is to be excluded from consideration then the inculpatory part of the accused person's statement may be read in support of the evidence of the prosecution."
Similar view has been reinforced by the Apex Court in case reported as "Syed Fida Hussain Shah v.
The State and another" (2024 SCMR 1622) wherein it has been laid down as under:- "In this respect, we may observe that it is by now well settled that when the prosecution evidence is disbelieved then the statement of an accused is to be accepted or rejected in toto. In such situation, it is legally not permissible to accept the inculpatory part of the statement of an accused and reject the exculpatory part of the same statement."
20. Epitome of the above discussion is that the prosecution has miserably failed to prove the charge of homicidal death of the deceased at the hands of appellant through cogent, reliable and confidence inspiring evidence. No explanation was advanced by the complainant for setting the law into motion after such a considerable delay. Both the acclaimed eye-witnessed have failed to establish their presence at the venue of occurrence at the relevant time for the reasons enumerated above. Medical evidence is in contradiction with the ocular account. Recovery of weapon of offence and positive report of PFSA being corroboratory in nature alone cannot be made basis for maintaining conviction and sentence of the appellant. No motive was set out by the prosecution as to why the appellant would commit murder of his own friend. It is settled principle for dispensation of criminal justice that for extending a benefit of doubt, it is not necessary that there should be many circumstances rather if only a single circumstance is brought forth creating reasonable doubt to ordinary prudence qua guilt of the accused, its benefit is to be extended to the accused as a matter of right and not grace or concession. Reliance is placed on case reported as 'Muhammad Mansha v. The State' (2018 SCMR 772) wherein it has been laid down as under:- "Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad Akram v. The State (2009 SCMR 230) and Muhammad Zaman v. The State (2014 SCMR 749)."
Reliance is also placed on the case reported as 'Muhammad Akram v. The State' (2009 SCMR 230), wherein it has been laid down as under:- "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 adhered by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubt. It 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." .
21. For what has been stated above, Criminal Appeal No.77569 of 2019, is hereby allowed, the conviction and sentence of appellant Wishal Munawar is set aside and he is acquitted of the charge by extending the benefit of doubt to him. He is in jail and shall be released forthwith, if not required to be detained in connection with any other criminal case.
22. Murder Reference No.401 of 2019 is answered in the NEGATIVE and the Death Sentence awarded to appellant Wishal Munawar is not confirmed.