PLJ 2022 Cr.C. 1495 (DB)
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b)/34--Qatl-e-amd--Conviction and sentence--Challenge to--Benefit of doubt--Murder reference--Wherein august Supreme Court of Pakistan rejected claim of witnesses who lived one kilometre away from occurrence, but on day of occurrence stated to be present near spot as they working as labourers, inasmuch as they failed to give any detail of projects they were working on--Empties taken into possession from place of occurrence were sent to Punjab Forensic Science Agency, and there was no reason for keeping empties which were taken into possession at Police Station and not sending them to office of Punjab Forensic Science Agency, till after arrest of appellant and recovery of pistol .30-bore--Said report of Punjab Forensic Science Agency, has no evidentiary value as possibility of fabricating matching empties is apparent--The prosecution witnesses failed to provide evidence enabling the Court to determine truthfulness of motive alleged and fact that said motive was so compelling that it could have led appellant to have committed Qatl-i-Amd of deceased--There is an evocative muteness in prosecution case with regard to minutiae of motive alleged--No independent witness was produced by prosecution to prove motive as alleged--The only other piece of evidence left to be considered by the Court is medical evidence with regard to injuries observed on dead body of deceased by PW-7 but same is of no assistance in this case as medical evidence by its nature and character, cannot recognize a culprit in case of an unobserved incidence--As all other pieces of evidence relied upon by prosecution, in this case, have been disbelieved and discarded by Court therefore, appellant’s conviction cannot be upheld on basis of medical evidence alone--Appeal allowed.
[Pp. 1507, 1519, 1520, 1521 & 1522] A, E, F, H & I
2014 SCMR 1698, 2017 SCMR 622, 2019 SCMR 2057, 2016 SCMR 2021, 2017 SCMR 986, PLD 2021 SC 600, 2018 SCMR 772 and
2021 SCMR 736.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 161--Delayed recording of statement of a prosecution witness u/S. 161 of Code of Criminal Procedure, 1898 reduces its value to nothing unless there is a plausible explanation for such delay--No explanation, much less probable, has been given by prosecution witnesses for PW-10 not getting his statement u/S. 161 of Code of Criminal Procedure, 1898 recorded immediately and therefore no value can be attached to his statement. [P. 1509] B
1996 SCMR 1553, 1998 SCMR 570 and 1993 SCMR 550.
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 129--Evidence--Article 129 of Qanun-e-Shahadat, 1984 provides that if any evidence available with parties is not produced then it shall be presumed that had that evidence been produced same would have been gone against party producing same--Illustration (g) of said Article 129 of Qanun-e-Shahadat Order, 1984.
[P. 1515] C
Duty of Investigation Officer--
----The Investigating Officer was under a binding duty to collect evidence and his failure has to be taken as a circumstance belying prosecution case--The purpose of trial is discovery of truth--As long as men keep lying only causality would be reality--The prosecution case suffers from inherent defects which are irreconcilable as they are--Compounding failures of prosecution is fact that persons admittedly present at place of occurrence, at time of occurrence either working there or being residents of said place, were not produced as witnesses. [P. 1515] D
2010 SCMR 949.
Appreciation of Evidence--
----Motive and recovery--Even otherwise it is an admitted rule of appreciation of evidence that motive and recovery are only corroborative pieces of evidence and if ocular account is found to be unreliable, then motive and recovery have no evidentiary value and lost their significance. [P. 1521] G
Benefit of Doubt--
----It is a settled principle of law that for giving benefit of doubt it is not necessary that there should be so many circumstances rather if only a single circumstance creating reasonable doubt in mind of a prudent person is available then such benefit is to be extended to an accused not as a matter of concession but as of right.
[P. 1522] I
2018 SCMR 772.
Mr. Shahid Nadeem Kahloon, Advocate for Appellant.
Ch. Asghar Ali Gill, Deputy Prosecutor General for State.
Syed Zeeshan Haider, Advocate for Complainant.
Date of hearing: 19.1.2022.
PLJ 2022 Cr.C. 1495 (DB)
[Lahore High Court, Bahawalpur Bench]
Present: Sadiq Mahmud Khurram and Ali Zia Bajwa, JJ.
MUHAMMAD ABID--Appellant
versus
STATE etc.--Respondents
Crl. A. No. 272 & M.R. No. 9 of 2019, heard on 19.1.2022.
Judgment
Sadiq Mahmud Khurram, J.--Muhammad Abid son of Muhammad Sadiq (convict) was tried alongwith Muhammad Javed alias Ayaz, Muhammad Nadeem, Muhammad Amin alias Mina and Shahid Khan, the co-accused of the appellant, all since acquitted, by the learned Additional Sessions Judge/Model Criminal Trial Court, Bahawalpur in the case FIR No. 25 of 2017 dated 30.01.2017 registered at Police Station Samma Satta, District Bahawalpur in respect of offences under Sections 302, 148 and 149 PPC for committing the Qatl-i-amd of Fahad Sajjad son of Muhammad Sajjad (deceased). The learned trial Court vide judgment dated 08.05.2019, convicted Muhammad Abid son of Muhammad Sadiq (convict) and sentenced him as infra:
Muhammad Abid son of Muhammad Sadiq:
Death under Section 302(b) PPC as Tazir for committing Qatl-i-amd of Fahad Sajjad son of Muhammad Sajjad (deceased)
and directed to pay Rs.200,000/-as compensation under
Section 544-A, Cr.P.C. to the legal heirs of the deceased and in case of default thereof, the convict was directed to further undergo six months of simple imprisonment.
The convict was ordered to be hanged by his neck till dead.
Muhammad Javed alias Ayaz, Muhammad Nadeem, Muhammad Amin alias Mina and Shahid Khan, the co-accused of the appellant, were, however, acquitted by the learned Additional Sessions Judge/Model Criminal Trial Court, Bahawalpur.
2. Feeling aggrieved, Muhammad Abid son of Muhammad Sadiq (convict) lodged Criminal Appeal No. 272 of 2019 assailing his conviction and sentence. The learned trial Court submitted Murder Reference No. 09 of 2019 under Section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Muhammad Abid son of Muhammad Sadiq. We intend to dispose of the Criminal Appeal No. 272 of 2019 and Murder Reference No. 09 of 2019 through this single judgment.
3. Precisely, the necessary facts of the prosecution case, as narrated by Muhammad Sajjad (PW-8), the complainant of the case are as under:-
“Stated that that on 30.01.2017 I was present at Adda Gullan Hatti for dropping my son Muhammad Fahad Sajjad aged 18/19 years, who was a student of 1st year I.Com in Millat College, Bahawalpur. We stopped Bus No. 972/MNS (Imran Mehran Company) for boarding of students. The staff of said Bus refused to board the students in the Bus. Muhammad Abid S/O Muhammad Sadiq, accused present in the Court issued threats for dire consequences after exchanging hot words with Fahad Sajjad. Accused Muhammad Abid issued threat that if my son Fahad Sajjad come forward, then he will see him and started the bus towards Bahawalpur. I alongwith my son Fahad Sajjad while boarded on Bus (Warraich Tayyara) reached at Mohkam Petroleum Khanqah Sharif, where accused Muhammad Abid, present in the Court, armed with Pistol .30-bore, Muhammad Ayyaz, Muhammad Nadeem, Muhammad Amin alias Meena armed with Sotas, Shahid S/O Bismillah armed with Sotas alongwith 3/4 unknown persons attracted there. They stopped the Bus in which we were boarded and with their common intention, they attacked over us and started beating my son. The accused persons de-boarded my son Fahad (deceased). Muhammad Ayyaz and Muhammad Nadeem caught hold my son Fahad Sajjad from his arms. Upon my resistance, accused Muhammad Amin alias Meena, Shahid and other unknown accused persons also caught hold me. Upon on hue and cry, Muhammad Faazil and Haji Abdul Aziz P.Ws attracted there. In our view, Abid accused present in the Court made fire shot to my son Fahad Sajjad with the intention to commit his Qatl-e-amd and said fire landed on his right side of belly. My son Fahad Sajjad fell down. I alongwith witnesses tried to apprehend the accused, but accused Muhammad Abid alongwith his co-accused took their heels while making aerial firing. Accused Fahad Sajjad was shifted to B.V. Hospital, Bahawalpur where he succumbed to the injuries. I submitted written application Ex.P-A for registration of F.I.R.
On 07.2.2017, I got recorded my supplementary statement in which I had stated that correct name of accused Muhammad Ayyaz is Muhammad Javed alias Ayyaz and the correct name of accused Muhammad Nadeem is Muhammad Nadeem Iqbal.
On 12.2.2017, I alongwith my brother Muhammad Fazil went to the Police Station and joined the investigation. During course of investigation, accused Muhammad Abid on his physical remand was interrogated by the LO. Accused disclosed the fact that after the occurrence, he had concealed the Pistol and magazine through which, he had made fire shot upon deceased, near the wall of Mohkam Petroleum. Upon this disclosure, accused in police custody led us to the place of recovery where he got recovered weapon of offence i.e. Pistol .30-bore Bearing No. 6363 P-7. The I.O. prepared sealed parcel of said Pistol and took the same into possession vide recovery memo. Ex P-J, attested by me and Muhammad Fazil PW. Accused also got recovered the Magazine P-8 and I.O. took the same into possession vide recovery memo. Ex.P-K, attested by me and Muhammad Fazil PW.
On 14.2.2017, I got recorded my supplementary statement wherein I had nominated Muhammad Shahid as co-accused who was also involved in the commission of this occurrence.”
4. After the formal investigation of the case report under Section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial Court wherein the accused were sent to face trial. The learned trial Court framed the charge against the accused on 13.06.2017, to which the accused pleaded not guilty and claimed trial.
5. The prosecution in order to prove its case got statements of as many as twelve witnesses recorded. The ocular account of the case was furnished by Muhammad Sajjad (PW-8), Abdul Aziz (PW-9) and Sanwal Yar Zafar (PW-10). Muhammad Nawaz 1572/HC (PW-1) stated that on 30.01.2017, Faisal Amin, SI (PW-12) handed over to him two sealed parcels said to contain blood stained earth and empties recovered from the place of occurrence and on 12.02.2017, Faisal Amin, SI (PW-12) handed over to him a sealed parcel said to contain a pistol recovered from the appellant and on 02.03.2017 he handed over all the sealed parcels to Faisal Amin, SI (PW-12) for their onward transmission to the office of Punjab Forensic Science Agency, Lahore. Riaz Ahmad, ASI (PW-2) stated that on 30.01.2017, he recorded the formal F.I.R (Exh.PB). Muhammad Aslam, ASI (PW-3) stated that on 30.01.2017, he received the written application (Exh. PA) of Muhammad Sajjad (PW-8) and sent the same to the Police Station for registration of the F.I.R. Muhammad Kamran 1658/C (PW-4) stated that on 30.01.2017, Faisal Amin, SI (PW-12) handed over to him the dead body of the deceased for escorting the same to RHC Khanqah Sharif and he also received the last worn clothes of the deceased from the Medical Officer after the post-mortem examination. Muhammad Kamran 1658/C (PW-4) further stated that on 06.02.2017, Faisal Amin, SI (PW-12), the Investigating Officer of the case, took into possession Bus No. 972/MNS and he and Khalid Karim 1708/C (PW-6) witnessed the said recovery. Saeed Akhtar draftsman (PW-5) stated that he prepared the scaled site-plan of the place of occurrence (Exh. PE). Muhammad Shabbir (PW-11) stated that on 30.01.2017, he identified the dead body of the deceased at the time of post-mortem examination. Faisal Amin, SI (PW-12) investigated the case from 30.01.2017 till 04.03.2017, arrested the appellant on 30.01.2017, and detailed the facts of the investigation as conducted by him in his statement before the learned trial Court.
6. The prosecution also got Dr. Adeel Mukhtar (PW-7) examined, who on 30.01.2017 was posted as Medical Officer at RHC Khanqah Sharif and on the same day conducted the post-mortem examination of the dead body of Fahad Sajjad son of Muhammad Sajjad (deceased). Dr. Adeel Mukhtar (PW-7), on examining the dead body of Fahad Sajjad son of Muhammad Sajjad (deceased) observed as under:-
“Description of Injuries:
Injury No. 1.
There was a wound present in the area of right iliac fossa measuring 1.5 X 1.5 cm, and was circular in shape. Scarring tattooing and burning was present around the wound suggesting wound caused by fire-arm edges were everted and was in continuation with the Injury No. 2. There was track between two injuries.
Injury No. 2.
There was a circular wound present on the back on the lower side 10 cm from coccyx measuring 2.0 cm X 2.0 cm, edges of the wound were averted and blood was still coming out from the wound.
Injury No. 3.
There was an abrasion of about 0.6 X 0.3 cm on the dorsal side of right hand.
Injury No. 4.
There was abrasion on right knee measuring 2.01 cm X 1.0 cm
.…………………
FINAL OPINION.
After careful external and internal examination of deadbody, I am of the opinion that Injuries No. 1 and 2 are the cause of death in this case because there is destruction and rupture of peritoneum, intestines and major abdominal vessels, which leads to heavy internal and external bleeding, hypovolemic shock and death. Moreover, injury to vital organs and vessels is sufficient to cause death in ordinary course of life. All the injuries are ante-mortem in nature and are caused by the fire-arm.”
7. On 03.05.2019, the learned Deputy District Public Prosecutor gave up the prosecution witness namely Muhammad Asghar 1414/C as being unnecessary. On 13.03.2019, the learned Deputy District Public Prosecutor gave up the prosecution witness namely Muhammad Ejaz as being unnecessary. On 26.03.2019, the learned Deputy District Public Prosecutor gave up the prosecution witnesses namely Muhammad Fazil and Muhammad Hassan as being unnecessary. On 03.05.2019, the learned Deputy District Public Prosecutor closed the prosecution evidence after tendering in evidence the report of Punjab Forensic Science Agency, Lahore (Exh. PT) relating to the blood-stained earth and the report of Punjab Forensic Science Agency, Lahore (Exh. PU) relating to the comparison of the empties with the pistol recovered from the possession of the appellant namely Muhammad Abid.
8. After the closure of prosecution evidence, the learned trial Court examined the appellant namely Muhammad Abid son of Muhammad Sadiq under Section 342 Cr.P.C. and in answer to the question why this case against you and why the PWs have deposed against you, he replied that he had been involved in the case falsely and was innocent. The appellant namely Muhammad Abid son of Muhammad Sadiq opted not to get himself examined under Section 340(2) Cr.P.C. and did not adduce any evidence in his defence.
9. At the conclusion of the trial, the learned Additional Sessions Judge/Model Criminal Trial Court, Bahawalpur convicted and sentenced the appellant as referred to above.
10. The contention of the learned counsel for the appellant precisely is that the whole case is fabricated and false and the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible, and relevant evidence. Learned counsel for the appellant further contended that the story of the prosecution mentioned in the statements of the witnesses, on the face of it, is highly improbable. Learned counsel for the appellant further contended that the statements of the prosecution witnesses were not worthy of any reliance. The learned counsel for the appellant also submitted that the recovery of the pistol (P-7) was full of procedural defects, of no legal worth and value, and was the result of fake proceedings. The learned counsel for the appellant also argued that the appellant had been involved in the occurrence only on suspicion. The learned counsel for the appellant finally submitted that the prosecution has totally failed to prove the case against the accused beyond the shadow of a doubt.
11. On the other hand, the learned Deputy Prosecutor General along with the learned counsel for the complainant contended that the prosecution has proved its case beyond the shadow of doubt by producing independent witnesses. The learned Deputy Prosecutor General along with the learned counsel for the complainant further argued that the deceased died as a result of injuries suffered at the hands of the appellant namely Muhammad Abid. The learned Deputy Prosecutor General along with the learned counsel for the complainant further contended that the medical evidence also corroborated the statements of Muhammad Sajjad (PW-8), Abdul Aziz (PW-9) and Sanwal Yar Zafar (PW-10). The learned Deputy Prosecutor General along with the learned counsel for the complainant further argued that the recovery of the pistol (P-7) from the appellant namely Muhammad Abid and the report of Punjab Forensic Science Agency, Lahore (Exh. PU) also corroborated the ocular account. The learned Deputy Prosecutor General along with the learned counsel for the complainant further contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offender with the innocent in this case. Lastly, the learned Deputy Prosecutor General along with the learned counsel for the complainant prayed for the rejection of the appeal.
12. We have heard the learned counsel for the appellant, the learned Deputy Prosecutor General and with their able assistance perused the record and evidence recorded during the trial.
13. The whole prosecution case revolves around the statements of Muhammad Sajjad (PW-8), Abdul Aziz (PW-9) and Sanwal Yar Zafar (PW-10), the eye-witnesses of the occurrence. The relationship of the prosecution witnesses namely Muhammad Sajjad (PW-8), Abdul Aziz (PW-9) and Sanwal Yar Zafar (PW-10) with the deceased is on record. Fahad Sajjad (deceased) was the real son of Muhammad Sajjad (PW-8), whereas the class fellow and friend of Sanwal Yar Zafar (PW-10). It was also brought on record that the prosecution witnesses namely Abdul Aziz (PW-9) was friends with Muhammad Fazil, the brother of the prosecution witness namely Muhammad Sajjad (PW-8). Abdul Aziz (PW-9), during in his statement before the learned trial Court stated as under:
“Stated that on 30.01.2017 Muhammad Fazil PW who is my close friend came to me in connection with his personal work and we were sitting at Mohkam Petrol Pump.” (emphasis supplied)
The complainant of the case namely Muhammad Sajjad (PW-8) admitted that Muhammad Fazal was his brother and stated as under:
“Muhammad Fazil is my real brother. His house is adjacent to my house. He runs a milk business.”
It is also an admitted aspect of the prosecution case that the prosecution witnesses namely Muhammad Sajjad (PW-8), Abdul Aziz (PW-9) and Sanwal Yar Zafar (PW-10) were admittedly not the residents of the place of occurrence or any place near the same. According to the prosecution witnesses namely Muhammad Sajjad (PW-8), Abdul Aziz (PW-9) and Sanwal Yar Zafar (PW-10) the occurrence took place near Mohkam Petroleum, a petrol filling station situated in the city of Khanqah Sharif. Muhammad Sajjad (PW-8), during cross-examination, stated that his house was at a distance of about seventeen kilometres from the place of occurrence. According to Muhammad Sajjad (PW-8), prior to the occurrence, he arrived at Adda Gullan Hatti and from there, he proceeded on a bus and arrived at the place of occurrence. Muhammad Sajjad (PW-8), during cross-examination stated as under:
“My house is at a distance of about four kolometres from Adda Gullan Hatti
…………………..
Distance between Gullan Hatti and the alleged place of murder is about 12/13 kilometres.”
Similarly, the prosecution witness namely Abdul Aziz (PW-9) also admitted that his residence was at a distance of four kilometres from the place of occurrence. Abdul Aziz (PW-9) during cross-examination admitted as under:
“My house is situated at ‘Mauza Uttera’. Distance between my house and ‘Mohkam’ Petroleum Station is about 5/6 kilometers.”
…………
My house is at a distance of about-06 kilometers from the place of occurrence.”
The prosecution witness namely Sanwal Yar Zafar (PW-10) also admitted that he was not the resident of the place of occurrence rather arrived there while travelling on a bus. The above-referred portions of the cross-examination of the prosecution witnesses namely Muhammad Sajjad (PW-8), Abdul Aziz (PW-9) and Sanwal Yar Zafar (PW-10) reflects that the prosecution witnesses namely Muhammad Sajjad (PW-8), Abdul Aziz (PW-9) and Sanwal Yar Zafar (PW-10) can be validly termed as “chance witnesses” and therefore were under a bounden duty to provide a convincing reason for their presence at the place of occurrence, at the time of occurrence and were also under a duty to prove their presence by producing some physical proof of the same. We have noted with grave concern that the prosecution witnesses namely Muhammad Sajjad (PW-8), Abdul Aziz (PW-9) and Sanwal Yar Zafar (PW-10) failed miserably to provide any consistent evidence as to the reason for their arrival at the place of occurrence and their presence at the place of occurrence when the same was taking place. The prosecution witness namely Muhammad Sajjad
(PW-8), claimed that on the day of occurrence he had accompanied his deceased son for the reason that he had to submit the college fee of his son, however, it was brought on record that during the investigation of the case, the prosecution witness namely Muhammad Sajjad (PW-8), had never provided the said reason for his presence at the place of occurrence, at the time of occurrence. Furthermore, no documentary evidence was collected during the investigation of the case to support the claim of the prosecution witness namely Muhammad Sajjad
(PW-8), that he had proceeded to the place of occurrence along with his son for the reason that he had to deposit college fee. Muhammad Sajjad (PW-8) admitted during cross-examination as under:
“On the day of alleged occurrence, I accompanied my son due to some special reason. Volunteered that I had to deposit the college fee of the deceased, therefore, I accompanied him. Usually, I myself used to deposit monthly college fee of the deceased on 30th of every month. It is correct that in the complaint Ex.P-A, it is not mentioned that “Usually, I myself used to deposit monthly college fee of the deceased on 30th of every month”. It is correct that during investigation, I did not mention this fact before the I.O. It is correct that in my later statements made before the I.O., I did not mention this fact as well.”(emphasis supplied) .
The prosecution witness Abdul Aziz (PW-9) claimed that he was present at the Mohkam Petrol Pump along with his friend Muhammad Fazil when he saw the occurrence. Abdul Aziz (PW-9) went on to claim that Muhammad Fazil was visiting him in connection with his work. Muhammad Fazil never appeared before the learned trial Court to support the claim of Abdul Aziz (PW-9) that on the said day he had visited Abdul Aziz (PW-9) in connection with his work. Moreover, the prosecution witness Abdul Aziz (PW-9) was found to have made a blatant improvement with regard to his claim that Muhammad Fazil had come to meet him on the day of occurrence as Muhammad Fazil had some work with him and was duly confronted by his previous statement. During cross-examination, Abdul Aziz (PW-9) stated as under:
“I was present at ‘Mohkam Petroleum Station because I was called by Fazil PW as he had some work with me. In my statement recorded u/S. 161 Cr.P.C, I had stated the same reason of my presence at ‘Mohkam’ Petroleum Station. (Confronted with Ex.D-B, wherein it is not recorded as such.) I and Fazil PW had no joint business whatsoever prior to the alleged occurrence.”
We have also noted that initially it was claimed by the prosecution witness Abdul Aziz (PW-9) that he was sitting with Muhammad Fazil at the Mohkam Petrol Pump when he was attracted to the place of occurrence and saw the same, however, during cross-examination, the prosecution witness namely Abdul Aziz (PW-9) changed his version with regard to the place of his sitting prior to the occurrence and during cross-examination claimed that he and Muhammad Fazil were sitting at a restaurant and taking tea when the occurrence took place. Abdul Aziz (PW-9) during cross-examination stated as under:
“I got recorded in my statement before the police that I alongwith Fazil was sitting near Mohkam Petrol Pump in a Hotel and taking tea. Occurrence took place at link road near Mohkam Petrol Pump. Occurrence was not taken place at Mohkam Petrol Pump. It is correct that within the premises of Mohkam Petrol Pump, there was no tea stall/Hotel.” (emphasis supplied)
We ourselves have also perused the scaled site-plan of the place of occurrence (Exh. PE) as prepared by Saeed Akhtar, draftsman (PW-5) and the rough site-plan of the place of occurrence (Exh.PS) as prepared by Faisal Amin, SI (PW-12) and find that no restaurant or any tea stall has been identified in the said site-plans (Exh. PE and Exh.PS) where the prosecution witness namely Abdul Aziz (PW-9) was allegedly present before the occurrence. The absence of any restaurant or any tea stall near the place of occurrence denudes falsity of the claim of the prosecution witness namely Abdul Aziz (PW-9). We have also noted that both the prosecution witnesses namely Muhammad Sajjad (PW-8) and Sanwal Yar Zafar (PW-10) claimed that they had arrived at the place of occurrence on a bus, however, the said vehicle was never noted to be available at the place of occurrence by Faisal Amin, SI (PW-12), the Investigating Officer of the case. Moreover, both the prosecution witnesses namely Muhammad Sajjad (PW-8) and Sanwal Yar Zafar (PW-10) remained at variance with regard to the identity of the bus which they had boarded to arrive at the place of occurrence. According to the prosecution witness namely Muhammad Sajjad (PW-8), the bus which they had used to arrive at the place of occurrence was Warraich Tayyara whereas according to the prosecution witness Sanwal Yar Zafar (PW-10), the bus which had been used by them to arrive at the place of occurrence was of Cheema Brothers Muhammad Sajjad (PW-8) in his statement before the learned trial Court stated as under:
“I alongwith my son Fahad Sajjad while boarded on Bus (Warraich Tayyara) reached at Mohkam Petroleum Khanqah Sharif,”
Contrary to this, Sanwal Yar Zafar (PW-10) stated as under:-
“It is correct that in my statement under Section 161 Cr.P.C. I had stated that the bus in which we boarded from ‘Gullan Hatti’ was of “Cheema Brothers. ”
Moreover, Faisal Amin, SI (PW-12), the Investigating Officer of the case, never made any effort to take into possession the bus which had been allegedly used by the prosecution witnesses namely Muhammad Sajjad (PW-8) and Sanwal Yar Zafar (PW-10) to arrive at the place of occurrence. Moreover, Faisal Amin, SI (PW-12), the Investigating Officer of the case, did not mention the presence of the bus which had been used by the prosecution witnesses namely Muhammad Sajjad (PW-8) and Sanwal Yar Zafar (PW-10) to arrive at the place of occurrence in the rough site-plan (Exh.PS) as prepared by him. In absence of any proof being brought on record that the prosecution witnesses namely Muhammad Sajjad (PW-8) and Sanwal Yar Zafar (PW-10) had used a bus to arrive at the place of occurrence, we cannot presume the existence of the said fact. The prosecution was under a duty to prove the said fact, however, it failed to do so. We have thus reached an irresistible conclusion that the prosecution witnesses namely Muhammad Sajjad (PW-8), Abdul Aziz (PW-9) and Sanwal Yar Zafar (PW-10) failed to prove the reason for them leaving their house on the day of occurrence and the mode used by them to arrive at the place of occurrence and the same remained claims unproved, entailing failure of the prosecution witnesses to prove the reasons for their departure from their residences and their subsequent arrival at the place of occurrence. The prosecution was under a bounden duty to establish that the occurrence had indeed taken place when the prosecution witnesses namely Muhammad Sajjad (PW-8), Abdul Aziz (PW-9) and Sanwal Yar Zafar (PW-10) had arrived at the place of occurrence and the failure to prove any reason for the prosecution witnesses namely Muhammad Sajjad (PW-8), Abdul Aziz (PW-9) and Sanwal Yar Zafar (PW-10) to have proceeded from their houses to the place of occurrence and their failure to prove the mode of their arrival at the place of occurrence, has vitiated our trust in Muhammad Sajjad (PW-8), Abdul Aziz (PW-9) and Sanwal Yar Zafar (PW-10). In this respect, reliance is placed on the case of “Muhammad Rafiq v. State” (2014 SCMR 1698) wherein the august Supreme Court of Pakistan rejected the claim of witnesses who lived one kilometre away from the occurrence, but on the day of occurrence stated to be present near the spot as they working as labourers, inasmuch as they failed to give any detail of the projects they were working on. Reliance is also placed on the case of “Usman alias Kaloo v. State” (2017 SCMR 622) wherein the august Supreme Court of Pakistan held that the ocular account of the incident had been furnished by Zahoor Ahmad, Ghulam Farid and Manzoor Ahmed witnesses in the said case, who were all residents of some other houses and were not the inmates of the house wherein the occurrence had taken place and therefore the said eye-witnesses being, chance witnesses, were declared not worthy of reliance. Reliance is also placed on the case of “Nasrullah alias Nasro v. The State” (2017 SCMR 724) wherein the august Supreme Court of Pakistan observed as under:
“In the case in hand the eye-witnesses produced by the prosecution lived eighty kilometers away from the scene of the crime, their stated reason for presence in the house of occurrence at the time of incident in issue had never been established through any independent evidence.”
14. We have also noted that during the course of examination the prosecution witness Abdul Aziz (PW-9) frankly admitted that the complainant of the case namely Muhammad Sajjad (PW-8) had arrived at the place of occurrence along with the police. Abdul Aziz (PW-9) during cross-examination stated as under:--
“Police reached at the place of occurrence after about 1/1 hours of the occurrence. My house is at a distance of about 06 kilometers from the place of occurrence. I am cultivator by profession. Complainant reached at the spot when police arrived.” (emphasis supplied)
The prosecution witness namely Abdul Aziz (PW-9) was neither declared hostile nor re-examined and the above mentioned statement of his remained unchallenged which has repercussion entailing the collapse of the whole edifice of the prosecution case.
15. We have also noted with concern that the statement of the prosecution witness namely Sanwal Yar Zafar (PW-10) was recorded with delay and no explanation, much less plausible, was given for the said delayed recording of the statement of the prosecution witness namely Sanwal Yar Zafar (PW-10). A perusal of the written application (Exh.PA) of Muhammad Sajjad (PW-8) reveals that the prosecution witness namely Sanwal Yar Zafar (PW-10) was not even named as a witness in the said document. Muhammad Sajjad (PW-8) admitted during cross-examination as under:
“Complaint Ex.P-A was written by myself in complaint Ex.P-A there is no mention of Sanwal PW as a witness. The name of said PW is also not mentioned in my application dated: 14.2.2017.”
The above mentioned frank admission of Muhammad Sajjad (PW-8) is in itself sufficient to prove that the prosecution witness namely Sanwal Yar Zafar (PW-10) was not present at the place of occurrence, at the time of occurrence and he was made a witness subsequently. Had Sanwal Yar Zafar (PW-10) been present at the place of occurrence, then necessarily Muhammad Sajjad (PW-8), would have noticed his presence in the same bus on which Muhammad Sajjad (PW-8), was travelling and therefore would have definitely named Sanwal Yar Zafar (PW-10) as a witness in the written application (Exh.PA), however, the same was not done, proving the absence of Sanwal Yar Zafar (PW-10). Moreover, the prosecution witness namely Sanwal Yar Zafar (PW-10) being conscious of this flaw tried to claim that his statement under Section 161 of the Code of Criminal Procedure, 1898 was recorded on the very first day but Sanwal Yar Zafar (PW-10) was confronted and subsequently admitted that his statement was recorded on 02.02.2017 and that too when he was at his house. Sanwal Yar Zafar (PW-10) during cross-examination admitted as under:
“My statement by the I.O. was recorded on the date of alleged occurrence at Hospital. Volunteered my statement was also recorded by the Homicide Unit later on. (At this stage, learned defence counsel states that no statement of the witness is recoded on 30.01.2017, therefore, the copy of said statement was never provided to the defence side. Learned DDPP and complainant counsel have verified that no such statement of the witness is available on the record.). On the date of alleged occurrence, I did not sign any document. It is correct that my first statement was recorded by the I.O. on 02.2.2017.
…………..
My statement was recorded in my house.
………….
My statement was recorded u/S. 161 Cr.P.C after about 2/3 days of the occurrence.”(emphasis supplied)
Faisal Amin, SI (PW-12), the Investigating Officer of the case, also admitted during cross-examination that Sanwal Yar Zafar (PW-10) not only got his statement recorded with delay but also did not explain any reason for not joining the investigation of the case. Faisal Amin, SI (PW-12), the Investigating Officer of the case, during cross-examination stated as under:
“Sanwal Zafar PW did not disclose any reason to me of two days delay regarding non-joining of investigation.”
It is trite that the delayed recording of the statement of a prosecution witness under Section 161 of the Code of Criminal Procedure, 1898 reduces its value to nothing unless there is a plausible explanation for such delay. No explanation, much less probable, has been given by the prosecution witnesses for Sanwal Yar Zafar (PW-10) not getting his statement under Section 161 of the Code of Criminal Procedure, 1898 recorded immediately and therefore no value can be attached to his statement. The august Supreme Court of Pakistan in the case of “Abdul Khaliq vs. The State” (1996 SCMR 1553) has held as under:
“It is a settled position of law that late recording of 161, Cr.P.C. statement of a prosecution witness reduces its value to nill unless there is plausible explanation for such delay”.
The august Supreme Court of Pakistan in the case of “Muhammad Khan vs. Maula Bakhsh “ (1998 SCMR 570) has held as under:
“It is a settled law that credibility of a witness is looked with serious suspicion if his statement under Section 161, Cr.P.C is recorded with delay without offering any plausible explanation”.
The august Supreme Court of Pakistan in the case of “Syed Saeed Muhammad Shah and another vs. The State” (1993 SCMR 550) at page 571 has held as under:
“In the absence of satisfactory nature of explanation normally rule is that statements recorded by police after delay and without explanation are to be ruled out of consideration. In this case unsatisfactory explanation which is not substantiated can be equated with no explanation”.
16. We have also noted that the claim of the prosecution witnesses was that initially the deceased was not allowed to board the Bus No. 972/MNS which resulted in an altercation between the deceased and the accused whereafter, when the deceased arrived at the place of occurrence on another bus, the accused allegedly deboarded him from the said bus and thereafter the appellant murdered him. As mentioned above, during the investigation of the case, the bus which was used by the deceased to arrive at the place of occurrence was never taken into custody by Investigating Officer of the case or produced before the learned trial Court. Furthermore, it has not been explained that how the accused were in knowledge as to the identity of the bus being used by the deceased for arriving at the place of occurrence as according to the prosecution case, the bus used by the accused had left Adda Gullan Hatti fifteen minutes prior to the departure of the deceased from Adda Gullan Hatti to his college on another bus. It was also admitted by the prosecution witness namely Muhammad Sajjad (PW-8), that at the time of their arrival at the place of occurrence, the Bus No. 972/MNS used by the accused to leave Adda Gullan Hatti was not present at the place of occurrence. Muhammad Sajjad (PW-8) during cross-examination stated as under:
“The bus which had not allowed us to board in was not present at Muhkam’ Petrol Station when we arrived there later on. I do not know the identity of the driver of the earlier bus. Abid accused was the conductor of the said bus. I do not know that Abid accused was owner of said bus or not. During investigation, in my presence, the I.O. did not summon the owner and driver of the said bus.”
We have also noted that Faisal Amin, SI (PW-12), the Investigating Officer of the case, never joined the owner, conductor or the driver of the Bus No. 972/MNS in the investigation of the case, so as to verify the identity of the appellant namely Muhammad Abid and as to whether he was indeed employed to work in any capacity with regard to the running of the said bus. Sanwal Yar Zafar (PW-10) and Muhammad Sajjad (PW-8) also made contradictory statements with regard to the status of the appellant namely Muhammad Abid, with Muhammad Sajjad (PW-8), claiming that the appellant namely Muhammad Abid was the conductor of the bus whereas Sanwal Yar Zafar (PW-10) claimed that Muhammad Abid was a gunman employed by the owners of the Bus No. 972/MNS. In this manner, the prosecution failed to establish the above-mentioned crucial aspects of the case.
17. We have been troubled by the fact that during the trial, the prosecution witnesses namely Muhammad Sajjad (PW-8), Abdul Aziz (PW-9) and Sanwal Yar Zafar (PW-10) gave evidence whereby they changed the place of occurrence. According to the written application (Exh.PA) and the statement of Muhammad Sajjad (PW-8), the occurrence had taken place when the bus being used by the deceased had arrived and stopped at Mohkam Petrol Pump however the other two prosecution witnesses namely Abdul Aziz (PW-9) and Sanwal Yar Zafar (PW-10) stated that the occurrence had taken at a different place. Muhammad Sajjad (PW-8) in his statement stated as under:
“I alongwith my son Fahad Sajjad while boarded on Bus (Warraich Tayyara) reached at Mohkam Petroleum Khanqah Sharif, where accused Muhammad Abid, present in the Court, armed with Pistol .30-bore, Muhammad Ayyaz, Muhammad Nadeem, Muhammad Amin alias Meena armed with Sotas, Shahid S/O Bismillah armed with Sotas alongwith 3/4 unknown persons attracted there. They stopped the Bus in which we were boarded and with their common intention, they attacked over us and started beating my son.” (emphasis supplied)
Whereas Abdul Aziz (PW-9) stated as under:--
“Occurrence took place at link road near Mohkam Petrol Pump. Occurrence was not taken place at Mohkam Petrol Pump.” (emphasis supplied)
Sanwal Yar Zafar (PW-10) also stated during cross-examination as under:
“Occurrence took place at a link road near Mohkam Petrol Pump”
The above-referred portions of cross-examination of the prosecution witnesses namely Muhammad Sajjad (PW-8), Abdul Aziz (PW-9) and Sanwal Yar Zafar (PW-10) clearly establish that they gave inconsistent and mutually destructive statements with regard to the exact place of occurrence.
18. We have also noted that Muhammad Sajjad (PW-8), claimed that after the occurrence, he held the deceased and while holding the deceased, his clothes were smeared with blood. Muhammad Sajjad (PW-8), during cross-examination, stated as under:
“When I picked up my son in injured condition, my clothes were soaked with blood.”
Faisal Amin, SI (PW-12), the Investigating Officer of the case, did not take any such blood-stained clothes of Muhammad Sajjad (PW-8) in possession during the investigation of the. Faisal Amin, SI (PW-12), the Investigating Officer of the case, who otherwise showed extraordinary interest in the case, did not take the clothes of Muhammad Sajjad (PW-8) which were stained with blood, into possession and if these were sent to the Punjab Forensic Science Agency, Lahore for examination and grouping with that of the blood-stained clothes of the deceased, the same would have provided the strongest corroboration to the testimony of the eye-witness namely Muhammad Sajjad (PW-8). This omission strikes at the roots of the case of the prosecution and lays bare the untruthful and false claim of Muhammad Sajjad (PW-8) to have been present at the place of occurrence, at the time of occurrence. Guidance is sought from the principle enunciated by the august Supreme Court of Pakistan in the case of Mst. Sughra Begum and another versus Qaiser Pervez and others (2015 SCMR 1142) wherein it has been held as under:
“20. Both the eye-witnesses admitted that their clothes were stained with the blood of the deceased while lifting and handling him but the investigating officer, otherwise showing extraordinary interest in the case, did not take the same into possession 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 eye-witnesses. This omission strikes at the roots of the case of the prosecution and bespeaks volumes about the dishonest and false claim of the said witnesses.”
The august Supreme Court of Pakistan in the case of Mst. Mir Zalai versus Ghazi Khan and others (2020 SCMR 319) has held as under:
“Both the eye-witnesses produced by the prosecution had claimed that while handling Afsar Khan deceased their clothes had been smeared with the blood of the deceased but admittedly no such blood-stained clothes of the said eye-witnesses had been secured or produced”.
The august Supreme Court of Pakistan in the case of Nadeem alias Kala versus The State and others (2018 SCMR 153) has held as under:
“For the following reasons the prosecution case against the appellant is doubtful in nature:
(a) ……..
(b) Presence of both the witnesses of ocular account i.e. Tariq Mehmood complainant (PW.8) and Tahir Mehmood (PW.9) at the place of occurrence is also not free from doubts. During cross-examination the complainant stated that Maqsood Ahmad (deceased) in injured condition was shifted to Civil Hospital on a carry van but he could not disclose the registration number of the van or name of the driver of vehicle. He also deposed during his cross-examination that his clothes were also stained with blood but stated that he did not produce the blood stained clothes to the Police.”
We have also noted that Faisal Amin, SI (PW-12), the Investigating Officer of the case, admitted during cross-examination that he had not mentioned the names of the witnesses in the rough site-plan of the place of occurrence (Exh. PR) and the same fact was also admitted by Saeed Akhtar, draftsman (PW-5). Faisal Amin, SI (PW-12), the Investigating Officer of the case, during cross-examination admitted as under:
“It is correct in site-plan Ex.PS specific name of any witness is not mentioned.”
Similarly, Saeed Akhtar, draftsman (PW-5) during cross-examination admitted as under:
“It is correct that in scaled site-plans Ex.P-E and Ex.P-E/1, in detail of Point No. 3, names of witnesses have not been mentioned.”
It is also a fact that names of none of the witnesses namely Muhammad Sajjad (PW-8), Abdul Aziz (PW-9) and Sanwal Yar Zafar (PW-10) were mentioned either in the Column No. 4 of the inquest report (Exh. PH) or at page 4 of the inquest report (Exh. PH) as being the witnesses who were present at the time of preparation of the inquest report (Exh. PH). Faisal Amin, SI (PW-12), the Investigating Officer of the case, during cross-examination admitted the said fact and stated as under:-
“It is correct that in Column No. 4 of inquest report Ex.PH, meant for the name of person who identified the dead body, name of Sajjad, Sanwal, Fazil and Abdul Aziz is not mentioned. It is correct that in inquest report, in the column of brief facts of the case, the time of occurrence is not mentioned.”
Similarly, Dr. Adeel Mukhtar (PW-7) also stated as under:
“It is correct that in Column No. 4 of the inquest report
Ex.P-H, the names of two witnesses, Muhammad Ejaz and Muhammad Shabbir are mentioned therein. The names of same persons are also incorporated by me in Ex.P-F. In the last page of Ex.P-H, at the last column, I have perused that the name of other person Ammar S/O Aslam Humayoon is also mentioned.”
The omission of the names of the prosecution witnesses namely Muhammad Sajjad (PW-8), Abdul Aziz (PW-9) and Sanwal Yar Zafar (PW-10) from the inquest report (Exh.PH) also proves their absence. Moreover, the prosecution witness Abdul Aziz (PW-9) admitted during cross-examination that he was summoned from his house to get his statement recorded after he left the place of occurrence. The prosecution witness Abdul Aziz (PW-9) during cross-examination admitted as under:
“I did not accompany the deceased to the Hospital. My statement was recorded by the I.O. about 3/4 hours after the alleged occurrence. My statement was recorded at the spot. I did not remain sitting at the place of occurrence, after the alleged occurrence. I was not summoned by the I.O. for 3/4 hours, after the occurrence.”
19. Another grave fact of the prosecution case is that both the prosecution witnesses namely Abdul Aziz (PW-9) and Sanwal Yar Zafar (PW-10) admitted the presence of other witnesses, either residents of an around the place of occurrence or the employees of Mohkam Petrol Pump, however, none of the said witnesses appeared before the learned trial Court in support of the prosecution case. Abdul Aziz (PW-9) during cross-examination stated as under:
“It is correct that about 8/10 persons including an armed guard remain present at Mohkam Petroleum Station.”
Similarly, Sanwal Yar Zafar (PW-10) during cross-examination stated as under:
“fire-arm injury inflicted to Fahad (deceased), 100/150 people gathered there.”
As mentioned above, none of those who had seen the occurrence according to the prosecution witnesses namely Abdul Aziz (PW-9) and Sanwal Yar Zafar (PW-10) and were also having their shops around the place of occurrence, appeared either during the investigation of the case or before the learned trial Court in support of the prosecution case. The failure of the prosecution to produce the said persons who had witnessed the occurrence, according to the prosecution witnesses namely Abdul Aziz (PW-9) and Sanwal Yar Zafar (PW-10), has convinced us that had they been produced before the learned trial Court, they would not have supported the prosecution case. Article 129 of the Qanun-e-Shahadat, 1984 provides that if any evidence available with the parties is not produced then it shall be presumed that had that evidence been produced the same would have been gone against the party producing the same. Illustration (g) of the said Article 129 of the Qanun-e-Shahadat Order, 1984 reads as under:
“(g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.”
The Investigating Officer was under a binding duty to collect evidence and his failure has to be taken as a circumstance belying the prosecution case. The purpose of the trial is the discovery of truth. As long as men keep lying the only causality would be the reality. The prosecution case suffers from inherent defects which are irreconcilable as they are. Compounding the failures of the prosecution is the fact that the persons admittedly present at the place of occurrence, at the time of occurrence either working there or being residents of the said place, were not produced as witnesses. The guidance is sought from the binding decisions of the august Supreme Court of Pakistan in case titled Nadeem alias Nanha alias Billa Sher vs. The State (2010 SCMR 949) wherein it has been observed as under:
“…. further that no independent witness of the locality where the incident took place, a ‘Bazar’ joined, made case of the prosecution doubtful. It is cardinal principle of Criminal Jurisprudence that any genuine doubt arising out of the circumstances of the case should be extended to the accused as of the right and not as concession. It is difficult to say that prosecution has proved its case beyond shadow of doubt.”
20. Another aspect of the case raising our doubt over the presence of the prosecution witness namely Muhammad Sajjad (PW-8), Abdul Aziz (PW-9) and Sanwal Yar Zafar (PW-10) at the place of occurrence, at the time of occurrence is the fact that they never reported the matter to the police for as many as more than three hours. According to the prosecution witnesses, the matter was reported to the police authorities by one Kashif, however, the said Kashif never joined the investigation of the case nor appeared before the learned trial Court. Muhammad Aslam, ASI (PW-3), who received the written application (Exh.PA) from Muhammad Sajjad (PW-8) and sent the same to the Police Station, stated that he had received the information about the occurrence through the Police Emergency Service (15), which information had been forwarded by one named Kashif. Muhammad Aslam, ASI (PW-3) during cross-examination stated as under:
“At about 09/10:00 a.m. on 30-01-2017, I reached the spot. It is correct that as per Rapat No. 04 dated:30-01-2017 recorded at 09:06 a.m. one Kashif reported to Rescue-15 through Mobile No. 0306-5831480 that near PSO Khanqah Sharif a fight ensued between students and Bus employees and also reported that a student aged 17/18 years also received fire at his leg. Copy of said Rapat is Ex.D-A.”
Similarly, Muhammad Sajjad (PW-8), also admitted during cross-examination as under:
“It is also correct that a call was made on Rescue-15. A student namely, Kashif had called Rescue-15. The said Kashif was never produced before the I.O. myself in during investigation.”
Faisal Amin, SI (PW-12), the Investigating Officer of the case during cross-examination admitted as under:
“I have perused Ex.DA and according to its Rappat No. 4 dated 30.01.2017 at about 09:06 a.m., one Kashif conveyed information to police through cell No. 0306 5831480 regarding the occurrence is mentioned. It is correct I did not investigate said Kashif in investigation “(emphasis supplied)
The above-referred portions of cross-examination not only prove that none of the prosecution witnesses namely Muhammad Sajjad (PW-8), Abdul Aziz (PW-9) and Sanwal Yar Zafar (PW-10) ever reported the matter to the police but also proves that the police authorities were informed of the occurrence by a person namely Kashif who never joined the investigation of the case and further proves that despite the fact that Muhammad Aslam, ASI (PW-3) arrived at the place of occurrence as early as 9/10.00 a.m., still the written application (Exh.PA) was not submitted to him till 11.30 a.m. This delay in reporting the matter conclusively proves that the written application (Exh. PA) of Muhammad Sajjad (PW-8) and the formal F.I.R (Exh.PB) were prepared after probe, consultation, planning, investigation and discussion and as the prosecution witnesses namely Muhammad Sajjad (PW-8), Abdul Aziz (PW-9) and Sanwal Yar Zafar (PW-10) were not present at the place of occurrence, at the time of occurrence and the delay was used for procuring their arrival. As many as three hours were taken to invent a false and dishonest narrative of the written application (Exh. PA) of Muhammad Sajjad (PW-8). The scrutiny of the statements of the prosecution witnesses reveals that the written application (Exh. PA) of Muhammad Sajjad (PW-8) was neither promptly submitted nor was spontaneous nor natural, rather was a contrived, manufactured and a compromised document. Sufficient doubts have arisen and inference against the prosecution has to be drawn in this regard and the delay in reporting the matter to the police and the failure of the prosecution witnesses to proceed to the Police Station evidences their absence at the time of occurrence, at the place of occurrence. Reliance is placed on the cases of “Ghulam Abbas and another v. The State and another” (2021 SCMR 23), Muhammad Ashraf Javeed and another vs. Muhammad Umar and others (2017 SCMR 199) Zafar vs. The State and others (2018 SCMR 326), G.M. Niaz vs. The State” (2018 SCMR 506), Abdul Jabbar and another vs. The State (2019 SCMR 129) and Muhammad Shafi alias Kuddoo vs. The State and others (2019 SCMR 1045).
21. The learned Deputy Prosecutor General and the learned counsel for the complainant have also relied upon the recovery of the pistol .30-bore (P-7) made from the appellant and the report of the Punjab Forensic Science Agency, Lahore (Exh.PU). The recovery of the pistol .30-bore (P-7) from the appellant namely Muhammad Abid cannot be relied upon as Faisal Amin, SI (PW-12), the Investigating Officer of the case, did not join any witness of the locality during the recovery of the pistol .30-bore (P-7) from the appellant namely Muhammad Abid which was in clear violation of the provisions of the Section 103 Code of Criminal Procedure, 1898. Therefore the evidence of the recovery of the pistol .30-bore (P-7) from the appellant cannot be used as incriminating evidence against the appellant, being evidence which was obtained through illegal means and hence hit by the exclusionary rule of evidence. The august Supreme Court of Pakistan in the case of Muhammad Ismail and others vs. The State (2017 SCMR 898) at page 901 has held as under:
“For the above mentioned recovery of weapons the prosecution had failed to associate any independent witness of the locality and, thus, the mandatory provisions of Section 103, Cr.P.C. had flagrantly been violated in that regard.”
Additionally, both the prosecution witnesses namely Muhammad Sajjad (PW-8), and Faisal Amin, SI (PW-12), the Investigating Officer of the case, admitted during the cross-examination that the pistol (P-7) was recovered from an open place that was not under the control of the appellant. Muhammad Sajjad (PW-8), during cross-examination, stated as under:
“The place of recovery of pistol P-7 is an open place.”
Faisal Amin, SI (PW-12), the Investigating Officer of the case, during cross-examination also stated as under:
“It is correct that the place of recovery of pistol P-7 and magazine P-8 is an open place.”
Furthermore, on the perusal of the report of Punjab Forensic Science Agency, Lahore (Exh.PU) regarding the analysis of the Pistol (P-7) recovered from the appellant and the empties collected from the place of occurrence, we have noticed that both the empties recovered from the place of occurrence and the pistol (P-7) were received by Punjab Forensic Science Agency, Lahore on the same day i.e. 02.03.2017. Muhammad Nawaz 1572/HC (PW-1) stated that on 30.01.2017, Faisal Amin, SI (PW-12) handed over to him two sealed parcels said to contain blood-stained earth and the empties recovered from the place of occurrence and on 12.02.2017, Faisal Amin, SI (PW-12) handed over to him a sealed parcel said to contain a pistol recovered from the appellant and on 02.03.2017 he handed over all the three sealed parcels to Faisal Amin, SI (PW-12) for their onward transmission to the office of Punjab Forensic Science Agency, Lahore. The august Supreme Court of Pakistan has held in the case of Nasrullah alias Nasro v. The State (2017 SCMR 724) as under:
“The alleged recovery of a pistol from the appellant’s possession during the investigation was legally inconsequential because the report of the Forensic Science Laboratory brought on the record shows that the recovered pistol and the secured crime-empties had been received by the Forensic Science Laboratory together on one and the same day.”
The august Supreme Court of Pakistan has held in the case of Nasrullah alias Ali Sher v. The State (2008 SCMR 707) as under:
“The crime-empties having been allegedly found at the place of occurrence and having been retained for so long the police station and having been sent to the F.S.L. along with the crime weapons and that also 12 days after the alleged weapons of offence had been allegedly recovered destroys and evidentiary value of the said piece of evidence. These recoveries, therefore, cannot offer any corroboration to the ocular testimony.”
Moreover, the appellant namely Muhammad Abid was arrested on 30.01.2017, the pistol .30-bore (P-7) was recovered from the appellant namely Muhammad Abid on 12.02.2017, however the empties taken into possession from the place of occurrence on 30.01.2017 were sent to Punjab Forensic Science Agency, Lahore on 02.03.2017 and there was no reason for keeping the empties which were taken into possession of 30.01.2017 at the Police Station and not sending them to the office of Punjab Forensic Science Agency, Lahore till 02.03.2017, till after the arrest of the appellant and the recovery of the pistol .30-bore (P-7). In this manner the said report of Punjab Forensic Science Agency, Lahore. (Exh. PU) has no evidentiary value as the possibility of fabricating matching empties is apparent. Reliance is placed on the case of Muhammad Amin vs. The State and another (2019 SCMR 2057) wherein the august Supreme Court of Pakistan has held as under:
“Interestingly, two empty cartridges (P-4/1-2) were secured from the place of occurrence by the investigating officer Akhtar Ali, SI (PW12) on the night of 11.10.2012, but the same were sent to the office of Punjab Forensic Science Agency on 23.01.2013 i.e. after arrest of the appellant in this case. In these circumstances, the positive report of FSL is of no avail to the prosecution and is inconsequential.”
Therefore, the recovery of the pistol .30-bore (P-7) from the appellant namely Muhammad Abid does not further the case of prosecution in any manner. In view of the above-mentioned facts, the recovery of the pistol .30-bore (P-7) from the appellant namely Muhammad Abid is not proved and the same cannot be used as a circumstance against the appellant.
22. The learned Deputy Prosecutor General and the learned counsel for the complainant have also relied upon the evidence of motive and submitted that it corroborated the ocular account. The motive of the occurrence as stated by Muhammad Sajjad (PW-8) in the written application (Exh. PA) was that initially the deceased was not allowed to board Bus No. 972/MNS which resulted in an altercation between the deceased and the appellant, who thereafter issued threats to the deceased and when the deceased arrived at the place of occurrence on another bus, the accused allegedly deboarded him from the said bus and thereafter the appellant murdered him. We have scrutinized the statements of the prosecution witnesses and find that the motive as alleged could not be proved. We have noted that Faisal Amin, SI (PW-12), the Investigating Officer of the case, never joined the owner, conductor or the driver of the Bus No. 972/MNS in the investigation of the case, so as to confirm if the deceased had indeed been stopped from boarding the said bus by the appellant. Faisal Amin, SI (PW-12), the Investigating Officer of the case, admitted during cross-examination that he even did not join in investigation the driver, conductor or owner of the Bus No. 972/MNS, so as to verify the fact that the appellant namely Muhammad Abid was being employed by them and if he was, then whether the appellant was performing any duty with regard to the Bus No. 972/MNS on the day of occurrence and whether the appellant had the authority to refuse boarding to passengers. Faisal Amin, SI (PW-12), the Investigating Officer of the case, during cross-examination admitted as under:
“I never joined into investigation the driver, conductor and the owner of bus to verify about accused Abid whether he was employee or crew of said bus.”
Sanwal Yar Zafar (PW-10) and Muhammad Sajjad (PW-8) also made contradictory statements with regard to the status of the appellant namely Muhammad Abid, with Muhammad Sajjad (PW-8), claiming that the appellant namely Muhammad Abid was the conductor of the said bus whereas Sanwal Yar Zafar (PW-10) claimed that Muhammad Abid was a gunman employed by the owners of the Bus No. 972/MNS. Muhammad Sajjad (PW-8), during cross-examination stated as under:
“Abid accused was the conductor of the said bus.”
Whereas Sanwal Yar Zafar (PW-10) during cross-examination stated as under:
“Abid accused is a gun man in the bus of a company namely “Imran Mehran”
Moreover, during the course of investigation not a single witness resident of Adda Gullan Hatti was got examined by Faisal Amin, SI (PW-12), the Investigating Officer of the case, so as to determine whether any altercation had taken place between the deceased and the appellant at Adda Gullan Hatti neither any such resident of Adda Gullan Hatti appeared before the learned trial Court in support of the claim of the prosecution witnesses. It was also admitted by the prosecution witness namely Muhammad Sajjad (PW-8), that at the time of their arrival at the place of occurrence, the Bus No. 972/MNS used by the accused to leave Adda Gullan Hatti was not even present at the place of occurrence. The prosecution witnesses failed to provide evidence enabling us to determine the truthfulness of the motive alleged and the fact that the said motive was so compelling that it could have led the appellant namely Muhammad Abid to have committed the Qatl-i-Amd of the deceased namely Fahad Sajjad. There is an evocative muteness in the prosecution case with regard to the minutiae of motive alleged. No independent witness was produced by the prosecution to prove the motive as alleged. The august Supreme Court of Pakistan has held in the case of Muhammad Javed v. The State (2016 SCMR 2021) as under:
“The said related and chance witnesses had failed to receive any independent corroboration inasmuch as no independent proof of the motive set up by the prosecution had been brought on the record of the case.”
Even otherwise it is an admitted rule of appreciation of evidence that motive and recovery are only corroborative pieces of evidence and if the ocular account is found to be unreliable, then motive and recovery have no evidentiary value and lost their significance.
23. The only other piece of evidence left to be considered by us is the medical evidence with regard to the injuries observed on the dead body of the deceased by Dr. Adeel Mukhtar (PW-7) but the same is of no assistance in this case as medical evidence by its nature and character, cannot recognize a culprit in case of an unobserved incidence. As all the other pieces of evidence relied upon by the prosecution, in this case, have been disbelieved and discarded by us, therefore, the appellant’s conviction cannot be upheld on the basis of medical evidence alone. The august Supreme Court of Pakistan in its binding judgment titled “Hashim Qasim and another vs. The State” (2017 SCMR 986) has enunciated the following principle of law:
“The medical evidence is only confirmatory or of supporting nature and is never held to be corroboratory evidence, to identify the culprit.”
The august Supreme Court of Pakistan in its binding judgment titled “Naveed Asghar and two others vs. The State” (PLD 2021 Supreme Court 600) has enunciated the following principle of law:
“31. The prosecution has attempted to complete the chain of circumstantial evidence by medical evidence relating to the post mortem examinations of the deceased persons. This evidence proves only the factum that death of the deceased persons was caused by cutting their throats through some sharp edge weapon; it does in no way indicate who had cut their throats and with what particular weapon. Medical evidence is in the nature of supporting, confirmatory or explanatory of the direct or circumstantial evidence, and is not “corroborative evidence” in the sense the term is used in legal parlance for a piece of evidence that itself also has some probative force to connect the accused person with the commission of offence. Medical evidence by itself does not throw any light on the identity of the offender. Such evidence may confirm the available substantive evidence with regard to certain facts including seat of the injury, nature of the injury, cause of the death, kind of the weapon used in the occurrence, duration between the injuries and the death, and presence of an injured witness or the injured accused at the place of occurrence, but it does not connect the accused with the commission of the offence. It cannot constitute corroboration for proving involvement of the accused person in the commission of offence, as it does not establish the identity of the accused person.32 Therefore, the medical evidence is of little help to the prosecution for bringing home the guilt to the petitioners.”
24. Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of appellant namely Muhammad Abid son of Muhammad Sadiq in the present case. It is a settled principle of law that for giving the benefit of the doubt it is not necessary that there should be so many circumstances rather if only a single circumstance creating reasonable doubt in the mind of a prudent person is available then such benefit is to be extended to an accused not as a matter of concession but as of right. The august Supreme Court of Pakistan in the case of “Muhammad Mansha vs. The State” (2018 SCMR 772) has enunciated the following principle:
“Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be 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 judgment of the august Supreme Court of Pakistan Najaf Ali Shah vs. the State (2021 SCMR 736) in which it has been observed in Paragraph No. 13 of page 236 as infra:
“9. Mere heinousness of the offence if not proved to the hilt is not a ground to avail the majesty of the Court to do complete justice. This is an established principle of law and equity that it is better that 100 guilty persons should let off but one innocent person should not suffer. As the preeminent English jurist William Blackstone wrote, “Better that ten guilty persons escape, than that one innocent suffer.” Benjamin Franklin, who was one of the leading figures of early American history, went further arguing “it is better a hundred guilty persons should escape than one innocent person should suffer.” All the contradictions noted by the learned High Court are sufficient to cast a shadow of doubt on the prosecution’s case, which entitles the petitioner to the right of benefit of the doubt. It is a well settled principle of law that for the accused to be afforded this right of the benefit of the doubt it is not necessary that there should be many circumstances creating uncertainty and if there is only one doubt, the benefit of the same must got to the petitioner. This Court in the case of Mst. Asia Bibi v. The State (PLD 2019 SC 64) while relying on the the earlier judgments of this Court has categorically held that “if a single circumstance creates reasonable doubt in a prudent mind about the apprehension of guilt of an accused, then he/she shall be entitled to such benefit not as a matter of grace and concession, but as of right. Reference in this regard may be made to the cases of Tariq Pervaiz v. The State (1998 SCMR 1345) and Ayub Masih v. The State (PLD 2002 SC 1048).” The same view was reiterated in Abdul Jabbar v. State (2010 SCMR 129) when this Court observed that once a single loophole is observed in a case presented by the prosecution, such as conflict in the ocular account and medical evidence or presence of eye-witnesses being doubtful, the benefit of such loophole/lacuna in the prosecution’s case automatically goes in favour of an accused.”
25. For what has been discussed above Criminal Appeal No. 272 of 2019 lodged by Muhammad Abid son of Muhammad Sadiq (appellant) is allowed and the conviction and sentence of the appellant awarded by the learned trial Court through the impugned judgment dated 08.05.2019 are hereby set-aside. Muhammad Abid son of Muhammad Sadiq (appellant) is ordered to be acquitted by extending him the benefit of the doubt. Muhammad Abid son of Muhammad Sadiq (appellant) is in custody and is directed to be released forthwith if not required in any other case.
26. Murder Reference No. 09 of 2019 is answered in Negative and the death sentence awarded to Muhammad Abid son of Muhammad Sadiq is Not Confirmed.
(A.A.K.) Appeal allowed
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