PLJ 2024 Cr.C. (Note) 2
[Lahore High Court, Rawalpindi Bench]
Present: Sadaqat Ali Khan and Ch. Abdul Aziz, JJ.
HAFEEZ AHMED and another--Appellants
versus
STATE etc.--Respondents
Crl. A. Nos. 113, 190, Crl. Rev. No. 63 & M.R No. 34 of 2020,
heard on 22.11.2022.
Police Rules, 1934--
----R. 25.35--The inquest report--The inquest report which is prepared under 25.35 of Police Rules, 1934 is a document, careful perusal of which can give a clue about possibility of case not having been registered at time mentioned in Column No. 1 of FIR--The inquest report is prepared as part of initial investigation and carries material information about homicide incident gathered from witnesses, examination of corpse and inspection of spot--It would be advantageous to have a look as to how 25.35 of Police Rules, 1934 is structured--The importance of inquest report can well be gauged from fact that details required to be mentioned therein are to be incumbently provided to medical officer before autopsy--These requirements are primarily part of check and balance system devised to oust possibility of some foul play and aimed at ensuring that statements of witnesses are recorded positively before postmortem examination--If statements of witnesses are recorded by police subsequent to postmortem examination, it gives vent to adjust ocular account in consonance with proposed medical evidence. [Para 11] A & B
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Arts. 46-A & 164--Relevance and production of evidence- The data so tendered in evidence by DW.2 since emanated from automated information system and collected through modern devices and techniques, thus was legitimately brought on record in terms of Articles 46-A and 164 of Qanun-e-Shahadat Order, 1984--The foregoing provisions for reference sake are being quoted hereunder:
“46-A. Relevance of information generated, received or recorded by automated information system. Statements in form of electronic documents generated, received or recorded by an automated information system while it is in working order are relevant facts.
164 Production of evidence that has become available because of modern devices etc. In such cases as Court may consider appropriate, Court may allow to be produced any evidence that may have become available because of modern devices or techniques.”
Admittedly, DW.2 was an authorized representative of Mobilink company and documentary evidence furnished by him was extracted from system of same company, thus its genuineness and admissibility is above any question mark--Living in a technological era and well conversant with prevailing menace of false depositions, Courts can legitimately use data generated through modern devices for ascertaining truth of a fact through enabling provisions of Articles 46-A and 164 of Qanun-e-Shahadat Order, 1984--Inexorably, from data collected through modern devices brought on record in evidence of DW.2, it was proved beyond any shred of doubt that PW.10 reached vicinity of crime after about 03-hours of incident, thus his claim of having seen incident is nothing but a brazen lie. [Para 13] C
2013 PCr.LJ 1082.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b) & 337-F--Qatl-i-amd--Conviction and sentence--Appraisal of evidence--Ocular account--Eye-witness--At most such traumas can be taken as indication of witness presence at spot but still his evidence is to be examined on benchmark of general and well settled principles laid down for appraisal of evidence--There is no hard and fast rule that a witness who is in receipt of injury will depose nothing but truth--Even otherwise this is not a simple presence of a witness at crime scene but his credibility which makes him a reliable witness--If ocular account gives rise to some inconsistency after being subjected to scrutiny through medical evidence, it warrants rejection of tale of incident furnished by eye-witnesses--Judicial archives are not bereft of precedents wherein ocular account was discarded after finding it in conflict with medical evidence-- If an eye-witness of a murder incident is found to have deposed falsely regarding material aspects, it is better to discard his evidence--There is no cavil to fact that without legal justification taking life of an individual, accused stoops down to level symbolic to a beast as such act is bereft of all human norms but still conviction is required to be awarded only if guilt of such person is impeccably proved by prosecution--A guilty verdict pronounced by Court after being driven from sentiments, emotions or perceptions cannot by any stretch be equated with dictates of justice--The evidence of a witness cannot be appraised through cherry-picking approach and instead it is to be scrutinized in its entirety--The same principle when applied in instant case it unveils that four eye-witnesses failed to prove their presence at spot, their narration about incident was materially belied from medical evidence and above all FIR was found suffering from delay--All foregoing reasons lead the Court to set-aside conviction awarded to appellants/convicts. [Para 14, 15 & 17] D, E, F & G
Mr. Fakhar Hayat, Advocate with Waleed Hussain (Appellant No. 2).
Mr. Basharat Ullah Khan, Advocate for Complainant.
Ms. Memoona Ehsan-ul-Haq, DDPP for State.
Date Hearing: 22.11.2022.
Judgment
Ch. Abdul Aziz, J.--Hafeez Ahmed and Waleed Hussain (appellants) along with Aneeb Hussain, Gulraiz Yaqoob, Zahoor Akhtar, Sayab Zahoor, Liaquat Ali, Tanzeel Ulfat alias Adeel and Nabeel Anjam involved in case FIR No. 162/2017 dated 27.05.2017 registered under Sections 302, 337-A (i), 337-A (ii), 337-F (vi), 337-L (2), 148, 149 & 109, PPC at Police Station Kallar Syedan, Rawalpindi were tried by learned Additional Sessions Judge/Model Criminal Trial Court, Rawalpindi. Trial Court vide judgment dated 29.02.2020 while acquitting the afore-said co-accused proceeded to convict and sentence the appellants in the following terms:
(1) Hafeez Ahmed (appellant)
Under Section 302(b), PPC to suffer death sentence. He was also directed to pay compensation of Rs. 2,50,000/-
to the legal heirs of Muhammad Afzaal (deceased) under Section 544-A, Cr.P.C. and in default whereof to undergo simple imprisonment for 06-months and amount of compensation was ordered to be recoverable as arrears of land revenue.
(2) Waleed Hussain (appellant)
Under Section 337-F(vi), PPC to pay Daman of Rs. 60,000/-in terms of Section 337-N (2), PPC to victim Ajmal Maqbool and in default whereof he was ordered to be kept in jail and dealt with in the same manner as if sentenced to simple imprisonment.
Challenging their conviction and sentence, Hafeez Ahmed and Waleed Hussain (appellants) filed Criminal Appeal No. 113 of 2020, whereas Chaudhry Abdul Aziz (Complainant) approached this Court through Criminal Appeal No. 190 of 2020 against the acquittal of respondents Nos. 2 to 8. At the same time, the complainant preferred Criminal Revision No. 63 of 2020 for the enhancement of sentence of respondent No. 3. Likewise, trial Court sent reference under Section 374, Cr.P.C. which was numbered as Murder Reference No. 34 of 2020 for the confirmation or otherwise of death sentence awarded to Hafeez Ahmed (convict). All these matters since are inter se connected, thus are being disposed of through this single judgment.
2. Succinctly stated the case of the prosecution as it gleans from FIR (Exh.PA) is to the effect that on 27.05.2017 Chaudhary Abdul Aziz (PW.10) along with his son Muhammad Afzaal who was a constable in Police Special Branch, Rawalpindi, came to the house of his brother-in-law (Sala) situated at Pindori Chauhdrian, Tehsil Kallar Syedan; that there was a dispute of land between nephew of Riasat Ali, namely, Ajmal Maqbool; that at about 4:00 p.m. he and his son attracted to a commotion, reached Bhata Road near the house of Muhammad Abbas and saw Hafeez Ahmed armed with pistol, Zaheer Ahmed armed with pistol .30 bore, Liaqat Ali armed with iron rod, Aneeb Ahmed armed with pistol .30 bore, Nabil Ahmed armed with iron rod, Waleed armed with rod, Adeel, Taseen Nazir armed with iron rod and Gulraiz armed with iron rod; that the accused were beating to Ajmal Maqbool and Nazakat Ali; that Liaquat Ali, Nabeel Ahmed, Waleed Ahmed, Adeel Ahmed, Taseen Nazir, Gulraiz and Qadoos gave repeated iron rod blows to Ajmal Maqbool which landed on different parts of his body; that Zahoor Ahmed inflicted pistol butt blow which landed at the head of Nazakat Ali; that when the complainant and his son Muhammad Afzaal stepped forward in order to rescue the victims, Hafeez Ahmed (appellant) made .30 bore pistol shot which hit at his mouth; that the second fire made by Hafeez Ahmed (appellant) landed at the chest of Muhammad Afzaal; that due to the afore-said injuries, Muhammad Afzaal fell down; that besides the complainant, the incident was witnessed by Shaukat Ali and Riasat Ali; that the perpetrators while making firing made good their escape, whereas Muhammad Afzaal succumbed to the injuries while being shifted to Civil Hospital, Kallar Syedan; that the incident occurred at the abetment of Sayab Zahoor. Motive behind the occurrence statedly was the dispute of land.
3. On 27.05.2017 Anwar Javed SI (PW.15) after the receipt of information qua the incident reached THQ Hospital, Kallar Syedan where Abdul Aziz (Complainant) made oral statement/Fard Bian (Exh.PN) which was read over to him in token of its correctness. Thereafter, he prepared application for postmortem (Exh.PU), drafted inquest report (Exh.PV) and handed over the dead body to Muhammad Kamran Constable for its autopsy at THQ Hospital Kallar Syedan. He also examined both the injured, namely Ajmal Maqbool and Nazakat and prepared their injury statements (Exh.PD/1 & Exh.PE/1). Subsequently, he visited the spot, recorded the supplementary statement of the complainant, collected blood through cotton from the place of occurrence through memo. Exh.PL. From the spot, he also took into possession two crime empties of .30 bore pistol vide memo. Exh.PM. He also prepared rough site-plan (Exh.PW). On 05.06.2017 he arrested accused Aneeb, Waleed, Abdul Qadoos and Gulraiz and interrogated them. On 11.06.2017 accused Aneeb, Abdul Qadoos, Waleed Hussain and Gulraz made respective disclosures and in pursuance thereof led to the recovery of pistol (P.8), iron rod (P.11), iron rod (P.10) and iron rod (P.12) which were secured through memos. Exh.PO, Exh.PQ, Exh.PP and Exh.PR respectively. On 04.07.2017 he arrested Hafeez Ahmed (appellant) who on 10.07.2017 in pursuance of disclosure got recovered pistol (P.5) which was secured vide memo. Exh.PK. He arrested Zahoor Ahmed accused on 05.09.2017 who on 10.09.2017 got recovered pistol (P.13) vide memo Exh.PZ.
4. Prosecution in order to prove its case against the appellant produced 15-PWs, out of whom, Dr.Arsala Arjumand Consultant (PW.3) and Dr.Ahsan Waqas Khan Niazi (PW.12) furnished the medical evidence, Shoukat Ali (PW.9), Abdul Aziz (PW.10), Ajmal Maqbool (PW.11) and Nazakat Ali (PW.13) provided ocular account of the occurrence and Anwar Javed SI (PW.15) investigated the case. The remaining PWs, more or less were formal in nature.
5. On 27.05.2017 Dr. Ahsan Waqas Khan Niazi (PW.12) conducted the autopsy of Muhammad Afzaal and noted the following injuries:-
(1) Lacerated wound approximately 1.5 x 1.5 cm in the soft pellet anterior to epiglottis with brain matter leaking from the hole in the sphenoid bone.
(2) (a) Lacerated wound 1 x 1 cm below the lower ribcage in the mid clavicular line, margin invertive with abrasion collar .5 x .5 cm superior aspect of the hole.
(b) Upon dissection, the projectile (bullet) recovered beneath the skin in left flank just superior to iliac crest.
The doctor gave the following opinion:
“In my opinion, death occurred due to cardio pulmonary arrest by complication of massive brain injury and irreversible hypo-volemic shock, both internal and external haemorrhage. Injuries were inflicted by firearm, ante mortem in nature and sufficient to cause death in ordinary course of nature.
Probable time that elapsed between injuries and death was within minutes whereas between death and postmortem was 2 to 4 hours.”
Dr. Ahsan Waqas also conducted the medico legal examination of Nazakat Ali on 27.05.2017 observed the injury which reads as under:
(1) Incised wound measuring 2 x .5 cm in left occipital region, 9 cm above left ear, depth probed and exposed bone seen.
On the same day, Dr. Ahsan Waqas medically examined Ajmal Maqbool and noted the following injuries:
(i) Swelling on posterior aspect of right hand tender and movement of little and 4th (ring finger) restricted.
(ii) Lacerated wound in right parietal region of skull measuring 5 x .5 cm lateral to midline, depth probed and bone not exposed.
(iii) Parallel/linear shape contusion/bruises on the back. Multiple in number occupying the region of upper back (patterned bruises with parallel lines of pechiae with central sparing).
(iv) Subjective complaint of pain int eh sternum, no swelling seen tender on palpation.
6. After the conclusion of prosecution evidence, the learned trial Court also examined the appellants and their co-accused under Section 342, Cr.P.C. Both the appellants in response to question “why this case registered against you and why the PWs have deposed against you” made almost the same reply. For ready reference, the reply tendered by Hafeez Ahmed (appellant) is mentioned below:
“The instant case has been registered against me and others with mala fide intentions and ulterior motives. Ajmal Maqbool, Nazakat Ali, Muhammad Afzaal and 05 other unknown persons came to village of occurrence on 27.05.2017 and forcibly started ploughing disputed land, showing their displeasure against the order passed by the civil Court in a civil suit for Permanent Injunction filed by Maqbool Hussain father of Ajmal Maqbool PW against Aneeb Hussain, Nabeel, Waleed, their father Liaqat Ali, Hafeez Ahmed, Sabtain Hafeez, Siab Zahoor and his father Zahoor Akhtar. On 17.09.2016 wherein status quo order was passed on the same day, whereas, written reply was filed by the aforementioned defendants on 17.11.2016 and status quo order was vacated on 20.05.2017. Ajmal Maqbool etc feeling aggrieved although filed appeal, however, while forming unlawful assembly after due deliberation unlawfully started ploughing the said land on fateful day. It is also worth mentioning here that the said appeal was also dismissed vide order dated 15.11.2017. Dishonesty of the prosecution can also be measured from the fact that they neither produced relevant record during the investigation nor tendered the same in evidence before this Court.
Abdul Qadoos accused when found Ajmal Maqbool unlawfully ploughing the said land he alone went to them and stopped them from doing so, which provoked Ajmal Maqbool etc and they started beating Abdul Qadoos and gave him fist and kicks blows. Many co-villagers attracted there and while observing the entire situation in order to safe life of Abdul Qadoos pelted stones etc upon Ajmal Maqbool and other which resulted into causing some minor injuries to Ajmal Maqbool and Nazakat Ali. As the foretasted unexpected situation cropped up unknown accused persons accompanying Afzaal deceased started firing and a fire was accidently hit Muhammad Afzaal deceased who succumbed to the injury in a few minutes at the spot. Ajmal Maqbool etc fled away from the place of occurrence leaving behind Muhammad Afzaal in injured condition who died at the spot. Information of the occurrence was imparted to the police post Chowk Pindori having territorial jurisdiction upon which they came to the place of occurrence, examined the injured Abdul Qadoos, prepared his injury statement and sent him through a constable to THQ hospital Kallar Syedan for his medical examination who was medical examined at 05:30 pm. The incharge police post along with other police officials collected the empties of .9 mm pistol and .32 bore pistol from the place of occurrence and shifted the dead body to THQ Kallar Syedan. Abdul Aziz complainant was present in his house at his village Hafyal admittedly 60/65 km away from the place of occurrence who after receiving the information of unfortunate incident came to the hospital. Shoukat Ali PW.9 is resident of village Chak Jalal Din Bismillah Abad, Teshil Rawalpindi, 40/45 kilometers away from village of occurrence. Shoukat Ali and his entire family is also voter member of union council Chak Jalal Din. Muhammad Hafeez and other accused persons were neither present at the place of occurrence nor participated in any manner whatsoever. Hafeez accused admittedly have 3 sons who are disabled since birth they are also deaf and disable in walking. Muhammad Hafeez is not resident of village of occurrence and admittedly he is residing in Rawalpindi with his family. On the fateful day he was present in his house where he received the information of death of Afzaal Hussain at the hands of his own cronies. PWs are closely related inter se, hostile and inimical towards me and others and have suppressed the real facts and falsely implicated myself and others in connivance with the local police.”
The appellants did not opt to appear under Section 340(2), Cr.P.C., however produced Dr.Waqar Ahmed (DW.1) and Shaukat Ali (DW.2) in their defence. On the conclusion of trial, the appellants were convicted and sentenced as afore-sated, hence the instant criminal appeals, criminal revision and murder reference.
7. It is contended by learned counsel for the appellants/convicts that though the FIR appears to have been promptly registered but it was made to look so through the tampering of record and indeed the case was registered much after the projected time; that the ocular account in this case was furnished by four witnesses, out of whom PW.9 Shaukat Ali and PW.10 Abdul Aziz miserably failed to prove their acclaimed presence, thus were chance witnesses; that though two other eye-witnesses, namely, Ajmal Maqbool and Nazakat Ali claimed to have received injuries during the incident but it was proved to be doubtful from the medical evidence furnished during trial; that the eye-witness account was strongly belied from the medical evidence furnished by PW.12 Dr.Ahsan Waqas Khan; that though the prosecution came forward with the specific motive but failed to prove it; that the positive report of PFSA according to which pistol recovered from appellant Hafeez Ahmed matched with two crime empties lost its significance as the pistol was recovered without adhering to the provisions of Section 103, Cr.P.C. and that though prosecution failed to prove its case against appellant Hafeez Ahmed but still he was awarded conviction. With these submissions, it was urged that the conviction awarded to appellant be set-aside.
8. On the other hand, learned law officer assisted by learned counsel for the complainant came forward with the submissions that the FIR in this case was promptly registered wherein all the necessary details of the incident were provided; that the eye-witnesses besides proving their presence at the spot also furnished confidence inspiring tale of the incident; that two eye-witnesses received injuries during the incident which otherwise are stamps of their truth; that the ocular account is in absolute conformity with the medical evidence, thus there is no reason to discard it; that pistol recovered from convict Hafeez matched with two crime empties secured from the spot and it provides corroboration to the case of prosecution; that corroboration can further be sought from the duly proved motive and that since the guilt of appellants was well established during trial, hence the conviction awarded to them calls for no interference.
Learned counsel for the complainant while arguing Criminal Appeal No. 190 of 2020 and Criminal Revision No. 63 of 2020 submitted that the presence and involvement of the acquitted accused in the crime was proved beyond any doubt, thus they are to be appropriately convicted; that the delinquency attributed to convict Waleed was also proved from ocular and medical evidence, thus his sentence is to be enhanced.
9. Arguments heard. Record perused.
10. It divulges from record that on 27.05.2017 complainant Abdul Aziz (PW.10) along with his slain son Muhammad Afzaal went to see one of his relatives Riasat Ali, living in a neighbourhood known as Pindori Chaudhrian. At about 4:00 p.m. both of them came out of the house after attracting to a hue and cry coming from the street. They saw Ajmal Maqbool and Nazakat Ali (PW.11 & PW.13) being beaten by a group of assailants comprising upon appellants/convicts and eight others. In an endeavour to save the two victims from assault, Muhammad Afzaal stepped forward but fell victim to shots fired by Hafeez Ahmed (appellant) from his .30 bore pistol and died after the receipt of injuries on mouth and chest. So far as, Waleed (appellant) is concerned, though he was nominated in the FIR but without attribution of any specific role. Out of the ten assailants so nominated in the crime report, only Hafeez and Waleed returned with the guilty verdict, whereas the rest were acquitted by the trial Court against which complainant preferred Criminal Appeal No. 190 of 2020.
11. The plain review of FIR (Exh.PA) reveals that it was registered within 03-hours & 20-minutes of the incident on the basis of complaint (Exh.PN) presented before the police. The prompt registration of FIR is essentially a factor to be examined by us as the same was projected by the prosecution as an aspect out-rightly excluding the hypothesis of consultation and concoction. Before inching any further, it seems appropriate to mention here that the vicinity of crime was a place known as Pindori, situated within the territorial jurisdiction of Police Station Kallar Syedan. The father of deceased, namely, Chaudhry Abdul Aziz (PW.10) imparted the tale of incident to Anwar Javed SI (PW.15) through oral statement/Fard Bian (Exh.PN) upon his arrival to THQ Hospital Kallar Syedan at about 7:00 p.m. The afore-mentioned claim of prosecution, if remains unrebutted, it makes the case in hand arising out of promptly lodged FIR. We are not oblivious of the fact that our system of police investigation has taken a nose dive on multiple counts and one out of them is menace of tampering the record through which even the crime reports chalked out with delay are made to look as if spontaneously reported. For achieving such object, generally Registrar No. 1 (FIR Register) and Register No. 2 (Station Diary) maintained under 22.45 of Police Rules, 1934 are stopped and necessary details are incorporated after afflux of some time. Such misdeeds on occasions remain hidden even during trial but often the circumspective perusal of record lifts veil from the delinquency of the police, giving traces that the crime report was registered much after the canvassed crime. The inquest report which is prepared under 25.35 of Police Rules, 1934 is a document, the careful perusal of which can give a clue about the possibility of the case not having been registered at the time mentioned in Column No. 1 of FIR. The inquest report is prepared as part of initial investigation and carries material information about the homicide incident gathered from the witnesses, examination of corpse and inspection of the spot. It would be advantageous to have a look as to how 25.35 of Police Rules, 1934 is structured, thus the foregoing provision is referred hereunder:
“25.35. The Inquest Report.--(1) When the investigation has been completed the Investigating Officer shall draw up a report in duplicate by the carbon copying process, in Form 25.35 (1) A, B or C according as the deceased appears to have died:-
A from natural causes,
B by violence.
C by poisoning.
(2) Such report shall state the apparent cause of death, give a description of any mark or marks of violence which may be found on the body and describe the manner in which and the weapon or instrument with which such marks appear to have been inflicted.
(3) The report shall be signed by the police officer conducting the investigation and by so many of the persons assisting in the investigation as concur therein and shall be forwarded without delay through the Superintendent to the District Magistrate or, if the District Magistrate has so directed, to the Sub-Divisional Magistrate.
(4) The following documents shall form part of such report:-
(a) The plan of the scene of death,
(b) The inventory of clothing, etc.
(c) A list of the articles on and with the body, if the body is sent for medical examination.
(d) A list of articles sent for medical examination, if any.”
The prescribed format of the inquest report contains 34-columns meant for mentioning various details like the inter se distance of the crime scene and the Police Station, the time of furnishing information of crime to police, the particulars of deceased and the witnesses who identified him, the status of the dead body and the description of injuries, the kind of weapon used for the murder, the articles found near the dead body if it is still placed on the crime scene as well as the brief facts of the incident. The importance of the inquest report can well be gauged from the fact that the details required to be mentioned therein are to be incumbently provided to the medical officer before the autopsy. These requirements are primarily part of the check and balance system devised to oust the possibility of some foul play and aimed at ensuring that statements of witnesses are recorded positively before the postmortem examination. Needless to mention here that if the statements of witnesses are recorded by the police subsequent to the postmortem examination, it gives vent to adjust the ocular account in consonance with the proposed medical evidence. For holding postmortem examination, certain guidelines are given for medical officer which are mentioned in CHAPTER-III titled as MEDICO-LEGAL POST MORTEM EXAMINATION of “ A TEXT BOOK OF FORENSIC MEDICINE AND TOXICOLOGY” by DR. S. SIDDIQ HUSSAIN. Instead of mentioning in detail, the guidelines so given, we consider it appropriate to have resort to brevity and mention some of them which are as under:-
➢ Postmortem examination should only be undertaken when there is a written order either from Superintendent of Police, or District Magistrate usually from Prosecuting Inspector (for Superintendent of Police).
➢ Read carefully, police report, before starting, i.e. appearance and situation of body, cause of death, statements of witnesses, alleged weapon, etc. Time of receipt of police papers should be entered on the register.
➢ It should be thorough and complete. All the three cavities of the body, i.e. skull, thorax and abdomen should be opened and examined even if the cause of death has been found in one of them, because you have to state not only the injuries to certain organs, but also to certify that other organs are healthy.
➢ It is never too late to make an autopsy, no matter, how far decomposition is advanced, as information may be had from teeth, hair, injuries to bones, as fractures, bullet wounds, etc. and shots may be recovered from inside the body.
➢ When the police bring the papers to you, see that following documents are present:-
(i) Statement of injuries by the police.
(ii) Death report on the prescribed form.
(iii) Statement of witnesses.
(iv) If examined during life, by a doctor, then copy of the medico legal report, operation notes, hospital notes, etc.
➢ In the case of a wound by firearm, any bullet or shots recovered from the body should be initialed (if big enough) and handed to the police in a sealed parcel.
➢ All the columns of the prescribed postmortem report should be filled.
➢ Postmortem examination should be done as soon as possible after the receipt of police papers to avoid trouble and inconvenience to the relatives of he dead person.”
(emphasis provided)
The medical officer is required to sign each page of the inquest report as token of its receipt before the commencement of postmortem examination. Needless to mention here that the requirements so mentioned above are primarily focused at ensuring that before the commencement of autopsy statements of eye-witnesses are on file, the kind of weapon used in the crime and locales of injuries inflicted by accused have been conveyed to police so as to exclude the possibility of subsequent tampering. While reverting back to the record of case in hand, it is observed that none of the four pages of inquest report (Exh.PV) carries the signatures of the doctor. We are astounded to observe that though according to prosecution case the application for postmortem examination (Exh.PU) was statedly presented before the medical officer on 27.05.2017 but it was signed four days thereafter on 31.05.2017. Vividly, the shortcomings so mentioned above give a clue that the inquest report (Exh.PV) and application for autopsy (Exh.PU) were not handed over to the medical officer prior to the postmortem examination. The defence counsel realizing the importance of these inconsistencies cross-examined Dr.Ahsan Waqas Khan Niazi (PW.12) but no acceptable legal explanation is found forthcoming. On account of the immense importance of these anomalies, we are persuaded to refer hereunder relevant excerpt from the cross-examination of Dr.Ahsan Waqas Khan (PW.12):
“According to postmortem report, post-mortem report and police papers were handed over to police as mentioned on the last page and last column of the post-mortem report. In inquest report Exh.PV does not bear my endorsement, signature or stamp. The application for post-mortem Exh.PU was endorsed by me on 31.5.2017.”
The absence of the signatures on the pages of inquest report (Exh.PV) and upon the application (Exh.PU) has derived us to nourish doubt about the acclaimed time of registration of FIR rather it gives reflection that both the documents were prepared much after the autopsy. It is equally important to mention here that the last page of inquest report is meant for incorporating the brief facts of the occurrence, emerging from the FIR and if this page is signed by the doctor before the postmortem examination, it plugs the possibility of recording the statement of complainant with delay. Accordingly, the delinquency of showing the FIR registered with delay as having been promptly registered can be countered. Now the question arises that if at all the inquest report (Exh.PV) and application/injury statement (Exh.PU) was complete in all respects prior to autopsy then why it was not got signed by the medical officer. The answer is obvious that till that time both the documents were in process of preparation. There are some other factors as well discerning from record which further reflect adversely upon the claim of prosecution regarding the prompt registration of FIR. The complaint (Exh.PN) was prepared at 7:00 p.m. whereas, the autopsy was conducted 45-minutes prior to that at 6:15 p.m. as is evident from Exh.PT. As all the above factors were not enough to draw an adversative inference about the time of registration of FIR, it is further observed that Shaukat Ali (PW.9) candidly conceded that police post Chowk Pindori was situated in close proximity of the crime scene at 01-km but still the incident was not reported to the officials posted therein. Cumulatively, all the facts mentioned above lead to the conclusion that indeed the FIR was registered late in the night and the intervening time was used for procuring the attendance of some suitable witnesses and for sketching a story to fix maximum members from the family of accused. While forming above view, we are enlightened from the observation of the Hon’ble Supreme Court of Pakistan expressed in case reported as Abdul Ghafoor v. The State (2022 SCMR 1527) which for reference sake is being referred hereunder:
“This Court while holding that the delay of two hours in lodging the FIR has assumed great significance as the same can be attributed to consultation, taking instructions and calculatedly preparing the report keeping the names of the accused open for roping in such persons whom ultimately the prosecution may wish to implicate charge and put to trial.”
12. Before embarking upon the eye-witness account, we consider it important to mention here that as many as ten persons were indicted in the case with the allegation of having actively participated in the crime. All the accused arrayed in the case were entrenched in kinship with each other and from this factor it can be gathered that the case in hand is of wider net. Such cases from their very genesis call for discreet scanning of the prosecution case mainly for the reason that unfortunately, it has become trend of criminal litigation in the province of Punjab to implicate as many persons from the family of accused as possible in a case of homicide, mainly to exert pressure upon others so as to desist them from pursuing the case of the actual delinquent. On occasions, the actual murder incident remains unwitnessed and a wider net is spread to grill in the case members hailing from the family of adversaries on account of doubt by planting false witnesses. The proposition of wider net and the cautious approach of the Courts in the circumstances was expounded upon by the Hon’ble Supreme Court of Pakistan in the case reported as Muhammad Zaman v. The State (2014 SCMR 749), the relevant extract of which is mentioned below:
“The tragedy may have been enacted by Mukhtar who has gone into hiding or Munawar who has been acquitted because the deceased Shabbir was alleged to have illicit relations with their sister, but many who have no visible nexus with this part of the story have also been roped in. It is so because it is customary in this part of the country to throw wide the net of implication to rope in all those who could possibly pursue the case or do something to save the skin of the one who is innocent or who is actually responsible for the commission of crime. The Courts, therefore, is required to exercise much greater care and circumspection while appraising evidence.”
13. In the above backdrop, we have meticulously scanned the ocular account which was furnished during trial by four witnesses, namely, Shaukat Ali, Abdul Aziz, Ajmal Maqbool and Nazakat Ali (PWs 9, 10,11 & 13). The question of foremost importance pertains to the acclaimed presence of eye-witnesses at the crime scene. It is noticed by us that though Shaukat Ali (PW.9) deposed during trial to have abode in the vicinity of crime i.e. Chowk Pindori but the falsity of such stance was badly exposed during cross-examination. Shaukat Ali, candidly conceded that he along with his sons Nazakat Ali (PW.13) and Shafaqat Ali (PW.14) was registered voter of Union Council No. 90, Chak Jalal Din, Rawalpindi. In his examination-in-chief Shaukat Ali (PW.9) described his address as village Pindori but during cross-examination he was confronted with the question by the defence that he sold his only house to one Saeed son of Sharif and subsequent thereto shifted to Rawalpindi in the year 1988 with the family to which he replied in negative. Astonishingly, Shaukat Ali (PW.9) expressed ignorance about the execution of a sale deed of his house in Pindori in favour of Saeed. In our view, the ignorance about the execution of sale deed was intentionally expressed with the sinister design of concealing the sale of house to Saeed and for strengthening his stance about residing in the vicinity of crime. However, the execution of a sale deed and affixing of signatures upon it by Shaukat Ali was proved through Exh.DP/1-4. We have not been able to digest that if at all Shaukat Ali along with his sons Nazakat and Shafaqat (PW.13 & PW.14) was residing in village Pindori then why their names were figuring in the voters list of union council No. 90, Chak Jalal Din, Rawalpindi. It was proved during cross-examination of complainant Abdul Aziz (PW.10) that the claim of Shaukat regarding his abode in village Pindori was nothing but a blatant lie. Indeed, it emerged from the cross-examination of Abdul Aziz (PW.10) that in the days of occurrence Shaukat Ali was running a small grocery shop in a locality known as Bismillah Abad, Rawalpindi situated at a distance of 40/45 km from the place of occurrence. We have also scrutinized in depth, the deposition of complainant Abdul Aziz (PW.10) and have come to an irresistible conclusion that his acclaimed presence at the spot is also not free from doubts. Admittedly, Abdul Aziz (PW.10) was resident of village Hafiyal Tehsil Gujjar Khan situated at a distance of 60/65 km from the eventful place. In the complaint (Exh.PN), Abdul Aziz (PW.10) mentioned his mobile phone number as 0301-5488087. The Investigating Officer Anwar Javed SI (PW.15) further endorsed during trial that he had been interacting with Abdul Aziz (PW.10) on the same mobile phone number during investigation. The appellants furnished defence evidence through Shaukat Ali, Senior Legal Counsel Mobilink Company (DW.2) who placed on record the ownership of the mobile phone No. 0301-5488087 (Exh.DF), its Call Data Record (Exh.DG/1-2) and Site Location/Grid Report (Exh.DH). From the perusal of these documents, it transpired that at the time when the instant homicide incident occurred, the complainant Abdul Aziz (PW.10) was present in the area of Grid installed at Sargadhan Tehsil Gujjar Khan and he reached Kallar Syedan at about 7:25 p.m. The data so tendered in evidence by DW.2 since emanated from automated information system and collected through modern devices and techniques, thus was legitimately brought on record in terms of Articles 46-A and 164 of Qanun-e-Shahadat Order, 1984. The foregoing provisions for reference sake are being quoted hereunder:
“46-A. Relevance of information generated, received or recorded by automated information system. Statements in the form of electronic documents generated, received or recorded by an automated information system while it is in working order are relevant facts.
164 Production of evidence that has become available because of modern devices etc. In such cases as the Court may consider appropriate, the Court may allow to be produced any evidence that may have become available because of modern devices or techniques.”
Admittedly, Shaukat Ali (DW.2) was an authorized representative of Mobilink company and the documentary evidence furnished by him was extracted from the system of the same company, thus its genuineness and admissibility is above any question mark. Living in a technological era and well conversant with the prevailing menace of false depositions, the Courts can legitimately use data generated through modern devices for ascertaining the truth of a fact through the enabling provisions of Articles 46-A and 164 of Qanun-e-Shahadat Order, 1984. Inexorably, from the data collected through modern devices brought on record in the evidence of DW.2, it was proved beyond any shred of doubt that Abdul Aziz (PW.10) reached the vicinity of crime after about 03-hours of the incident, thus his claim of having seen the incident is nothing but a brazen lie. In the case reported as Saifal v. The State (2013 PCrLJ 1082), the record of a mobile company furnished through its representative was termed as admissible with the following observation:
“The record of mobile company and evidence its representative is admissible in terms of Article 164 of Qanun-e-Shahadat Order which provides that the Court may allow the production of any evidence that may have become available because of modern devices and techniques.”
The Hon’ble Supreme Court of Pakistan also dilated upon the scope of Articles 46-A and 164 of Qanun-e-Shahadat Order, 1984 in the case titled as Ali Raza alias Peeter and others v. The State and others (2019 SCMR 1982) and an observation therefrom is essentially required to be referred which is as under:
“Technological innovations have opened up new avenues of proof to drive home charges. Article 164 of the Order ibid invests the Court with wide power to make use of evidence generated by modern devices and techniques; Articles 46-A and 78-A of the Order ibid as well as provisions of Electronic Transaction Ordinance (L1 of 2002) have smoothened the procedure to receive such evidence, subject to restrictions/ limitations provided therein.”
It will not be out of context to mention here that if an eye-witness has abode in a different vicinity, situated at some distance from the crime scene, he is treated as a chance witness and his deposition attains acceptance only if some plausible explanation for his acclaimed presence at the spot is furnished. On the same touchstone, we have appraised the acclaimed presence of Shaukat Ali and Abdul Aziz (PW.9 & PW.10) but are not left with any other option but to conclude that both of them were chance witnesses and besides that they failed even to prove their presence at the spot. As a necessary corollary, their respective depositions are to be discarded from consideration. In case reported as Naveed Asghar and 2 others v. The State (PLD 2021 Supreme Court 600), the Hon’ble Supreme Court while dealing with the evidence of a chance witness held as under:-
“….. chance witness: a witness who in view of his place of residence or occupation and in the ordinary course of events is not supposed to be present at the place of the occurrence but claims to be there by chance. Testimony of such witness requires cautious scrutiny and is not accepted unless he gives satisfactory explanation of his presence at or near the place of occurrence at the relevant time...”.
If any further reference in this regard is needed that can be made to the cases reported as Mst. Mir Zalai v. Ghazi Khan and others (2020 SCMR 319) and Muhammad Ashraf alias Acchu v. The State (2019 SCMR 652).
14. While pondering upon the testimony of other two eye-witnesses, namely, Ajmal Maqbool and Nazakat Ali (PW.11 & PW.13), it is observed that they entered the dock with the stance of having received injuries during the same incident. The injuries of both the eye-witnesses were vociferously described by the prosecution as stamp of their truth. A pressing need is felt by us to mention here that injuries statedly received by a witness during a homicide incident do not warrant acceptance without scrutiny of what he deposes before the Court. At the most such traumas can be taken as indication of his presence at the spot but still his evidence is to be examined on the benchmark of general and well settled principles laid down for the appraisal of evidence. There is no hard and fast rule that a witness who is in receipt of injury will depose nothing but truth. Even otherwise this is not a simple presence of a witness at the crime scene but his credibility which makes him a reliable witness. If any reference in this regard is needed that can be made to the case reported as Amin Ali v. The State (2011 SCMR 323) wherein the Hon’ble Supreme Court of Pakistan observed as under:
“Certainly the presence of injured witness cannot be doubted at the place of incident, but the question is as to whether they are truthful witnesses or otherwise, because merely the injuries on the person of PWs would not stamp them truthful witnesses.”
In another case reported as Nazir Ahmad v. Muhammad Iqbal and another (2011 SCMR 527), the Hon’ble Supreme Court of Pakistan while examining the case of an injured witness observed as under:
“It is settled law that injuries of PWs are only indication of his presence at the spot but are not affirmative proof of his credibility and truth. See Said Ahmed’s case (1981 SCMR 795) and Muhammad Pervez’s case (2007 SCMR 670).”
15. On the eventful day of 27.05.2017 firstly Waleed (appellant) along with his three acquitted co-accused, namely, Zahoor, Liaqat and Nabeel grappled with Ajmal Maqbool (PW.11) at about 2:00 p.m. Two hours thereafter, while Ajmal Maqbool and Nazakat Ali (PW.11 & PW.13) were on way back to the house they were assaulted by both the appellants and their acquitted co-accused. During the second incident, Ajmal and Nazakat (PW.11 & PW.13) raised hue and cry which attracted Muhammad Afzaal (deceased) to the spot upon whom Hafeez (appellant) fired twice from his .30 bore pistol, one out of which hit on his face and the other at his chest. Both the eye-witnesses budged not a single inch about the locales of injuries endured by Muhammad Afzaal (deceased) in pursuance of shots fired by Hafeez (appellant/convict). Since the locales of injuries so suffered by Muhammad Afzaal (deceased) have their own significance, thus a portion from the examination-in-chief of Ajmal Maqbool (PW.11) is essentially required to be mentioned hereunder:
“Muhammad Ifzal stepped forward for rescue then accused Zahoor Akhtar raised lalkara that Muhammad Ifzal be killed. Whereupon accused Hafeez Ahmed with intention to murder made straight fire upon Muhammad Ifzal on his face (منہ). The second fire made by accused Hafeez Ahmad landed on the chest of Muhammad Ifzal.”
In reference to the accusation so mentioned above, we have examined the medical evidence furnished by Dr.Ahsan Waqas (PW.12) who conducted the autopsy of deceased. The doctor observed a lacerated wound measuring 1.5 x 1.5 cm in the soft pallet anterior of epiglottis with brain matter leaking from the hole in the sphenoid bone. In addition, the skull of the deceased from its base was found fractured and membrane ruptured. Brain matter was found leaking from sphenoid bone in oral cavity. Before moving further, we consider it appropriate to mention here that as per human anatomy, the sphenoid bone is placed inside the skull and epiglottis is located adjacent to oral cavity. So far as the pallet is concerned, it is a bony/muscular partition forming the roof/upper part of the oral cavity. From above, it can be gathered that besides having fracture of skull, the deceased had an injury inside oral cavity from which the brain matter was leaking/coming out. Though the eye-witnesses claimed that the first bullet landed on the mouth of the deceased but there was no external injury at the given locale. As this was not enough, during dissection of skull no lead bullet or foreign metallic object was discovered by the medical officer. Even the lips, teeth and tongue were having no symptom of any injury whatsoever. For the sake of clarity, two excerpts from the cross-examination of Dr.Ahsan Waqas (PW.12) are essentially required to be incorporated in the instant para which are as under:
“There is no exit wound of injury No. 1. No foreign body was recovered from injury No. 1”.
“Injury No. 1 was not existing on the outer skin of the face but was instead in oral cavity inside mouth involving the base of skull. Teeth and tongue were not injured and were intact.”
In the given circumstances, we are confronted with the question of paramount importance that if at all injury No. 1 was on the mouth of deceased and inflicted through a pistol shot then why no corresponding symptoms were observed by the doctor on the outer surface of the face. Likewise, if the bullet which made ingress in the skull through mouth then why the teeth, tongue and lips remained intact and above all in the absence of an exit wound why the lead could not be recovered by the doctor. We have already mentioned above the guidelines for postmortem examination according to which the doctor is essentially required to trace the passage of bullet and to extract the lead if it is still inside the corpse. Despite examining the record and confronting the learned law officer and learned counsel for the complainant with the query in this regard, we failed to get any acceptable explanation for the anomalies so mentioned above rather found them speechless. Inevitably, in the given circumstances, it can be held that the injury No. 1 was not inflicted through a firearm weapon and instead was caused through some other source. The Courts or a Judge is not required to give an alternative reasoning of any lacuna, may it be emerging from medical evidence, rather is to restrict himself only to the extent that the detail of crime set out by the prosecution is apparently ringing true or not. The collection of medical evidence at investigation stage and its subsequent tendering during trial is primarily aimed at enabling the Court to get help for ascertaining the truth behind deposition of an eye-witness. If the ocular account gives rise to some inconsistency after being subjected to scrutiny through medical evidence, it warrants rejection of the tale of incident furnished by eye-witnesses. Judicial archives are not bereft of precedents wherein ocular account was discarded after finding it in conflict with the medical evidence. In the case reported as Abdul Jabbar and another v. The State (2019 SCMR 129) the Hon’ble Supreme Court of Pakistan while dilating upon inconsistency between medical ocular evidence observed as under:
“It is the settled principle of law that once a single loophole is observed in a case presented by the prosecution much less glaring conflict in the ocular account and medical evidence or for that matter where presence of eye-witnesses is not free from doubt, the benefit of such loophole/lacuna in the prosecution case automatically goes in favour of an accused.”
Even the presence of Nazakat (PW.13) at the crime scene was found by us to be under a big question mark. It evinces from the statement of Shaukat Ali (PW.9) that Nazakat used to ply taxi in Rawalpindi City. Not only this, in MLC (Exh.PB) the address of Nazakat Ali is found mentioned as Gali No. 1, Mohallah Chak Jalal Din, a neighbourhood other than the place where murder incident took place. The deposition of Nazakat Ali (PW.13) is in eternal silence regarding the reason which prompted him to reach the vicinity of crime and it makes him a chance witness. Likewise, it is observed that Nazakat Ali (PW.13) and other injured eye-witness, namely, Ajmal Maqbool (PW.11) were medically treated through MLC Exh.PB & Exh.PC respectively, upon which the date of examination is mentioned as 29.05.2017 i.e. two days after the incident. During medical examination, Dr.Ahsan Waqas (PW.12) observed a solitary incised wound on the left occipital region of Nazakat Ali (PW.13). During trial, Nazakat Ali attributed afore-mentioned injury to Zahoor Ahmad (since acquitted) and described it to have been caused through Butt blow of pistol. Needless to mention here that incised wound is always with clean cut edges and is inflicted through sharp edged weapon. The blunt trauma causes a lacerated wound which is always with irregular edges. Had Zahoor Ahmad caused the trauma on the head of Nazakat Ali (PW.13) through Butt blow of pistol, it would have been a lacerated wound and not the incised.
In the afore-mentioned circumstances, when the depositions of Ajmal Maqbool and Nazakat Ali (PW.11 & PW.13) stand belied from medical evidence to the extent of main injury endured by Afzaal (deceased) as well as in reference to the role ascribed to Zahoor Ahmad; their medical examination is proved to have been carried out two days after the incident; one out of them, namely, Nazakat Ali is also a chance witness, it will be a fallacious approach to uphold the conviction of appellants upon their depositions. The intrinsic worth of the testimony of a witness rests upon his credibility, which by no stretch is divisible in nature. If an eye-witness of a murder incident is found to have deposed falsely regarding material aspects, it is better to discard his evidence. While forming such view, we are enlightened from the wisdom of Hon’ble Supreme Court of Pakistan expressed in case reported as Imtiaz alias Taj v. The State and others (2018 SCMR 344) which is as under:
“It is not disputed that four co-accused of the appellant attributed effective firing at and specific injuries to Rustam Ali deceased had been acquitted by the trial Court. The law is settled that if the eye-witnesses have been disbelieved against some accused persons attributed effective roles then the same eye-witnesses cannot be believed another accused person attributed a similar role unless such eye-witnesses receive independent corroboration qua the other accused person and reference in this respect may be made to the cases of Ghulam Sikandar v. Mumraz Khan (PLD 185 SC 11), Sarfraz alias Sappi v. The State (2000 SCMR 1758), Iftikhar Hussain and others v. The State (2004 SCMR 1185) and Akhtar Ali v. The State (2008 SCMR 6).”
16. After arriving at afore-mentioned conclusion, we do not feel any pressing need to dilate upon the set out motive and positive report of PFSA which otherwise are corroboratory substance and cannot independently be used for judging the guilt of an accused. We are also compelled to mention here that Abdul Aziz (PW.10) was a former police official and even his sons Muhammad Afzaal (deceased), Muhammad Jameel (given up PW) and Shakeel were also serving in police department. This is not a remote possibility that the actual facts were suppressed by the Investigators to console and help the complainant due to the nexus of his family with the police.
17. There is no cavil to the fact that without legal justification taking the life of an individual, the accused stoops down to the level symbolic to a beast as such act is bereft of all human norms but still the conviction is required to be awarded only if the guilt of such person is impeccably proved by the prosecution. A guilty verdict pronounced by the Court after being driven from sentiments, emotions or perceptions cannot by any stretch be equated with the dictates of justice. The evidence of a witness cannot be appraised through cherry-picking approach and instead it is to be scrutinized in its entirety. The same principle when applied in the instant case it unveils that the four eye-witnesses failed to prove their presence at the spot, their narration about the incident was materially belied from the medical evidence and above all the FIR was found suffering from delay. All the foregoing reasons leaned us to set-aside the conviction awarded to the appellants/convicts. We, therefore, allow Criminal Appeal No. 113 of 2020 while giving benefit of doubt in favour of Hafeez Ahmed and Waleed Hussain (appellants), set-aside their conviction and sentence and as a necessary corollary they stand acquitted of the charges. Hafeez Ahmed (appellant) shall be released forthwith if not required to be detained in any other criminal case, whereas Waleed Hussain (appellant) whose sentence has been suspended, is absolved from his bail bonds. Resultantly, Murder Reference No. 34 of 2020 is answered in the NEGATIVE and death sentence awarded to Hafeez Ahmed (convict) is NOT CONFIRMED.
18. Since while disbelieving the prosecution case even the convictions of Hafeez Ahmed (death-convict) have been set-aside, hence Criminal Appeal No. 190 of 2020 against the acquittal of respondents No. 2 to 8 and Criminal Revision No. 63 of 2020 for the enhancement of sentence of respondent No. 3 have no merits which are hereby dismissed.
(A.A.K.) Appeal allowed
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