PLJ 2024 Cr.C. 857 (DB)
[Lahore High Court, Rawalpindi Bench]
Present: Sadaqat Ali Khan and Ch. Abdul Aziz, JJ.
MUHAMMAD ATIF NAVEED etc.--Appellants
versus
STATE--Respondent
Crl. A. Nos. 827, 698 & M.R. No. 41 of 2022, heard 16.4.2024.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302 &324--Qatl-e-amd--Conviction and sentence--Challenge to--Inquest report--Medical evidence--The medical officer is required to sign and examine each page of inquest report before postmortem examination--The medical evidence is confirmatory to ocular account and its careful perusal gives clue about truth behind depositions of eyewitnesses regarding their stance of having seen incident--A medical officer who enters dock during trial indeed through his testimony enables Court to adjudge veracity of an eyewitness for administering justice in an impeccable manner--If statement of an eyewitness is at variance with medical evidence, it gives rise to a doubt legitimate benefit of which cannot be taken away from accused facing charge of murder--In pursuance of our nisus of scrutinizing record and points formulated in preceding paras, outcome is inevitable that prosecution failed to satisfactorily prove its case against appellants beyond scintilla of any doubt--The occurrence admittedly stands on higher pedestal in reference to its gravity but appellants cannot be condemned on this score alone rather are to be held guilty upon affirmative proof of their guilt--Acquit them of charge and in consequence whereof, set aside their conviction and sentence--They are in custody; be released forthwith if not required to be detained in any other criminal case.
[Pp. 866, 871, 872 & 873] B, E, G & H
2020 SCMR 505
Police Rules, 1934--
----Chap. 25, R. 35--Inquest report--The inquest report is a document prepared under Rule 35 of Chapter 25 of Police Rules, 1934 and its circumspective perusal gives traces about manner in which investigation of a homicide case is conducted on first day and besides that it also gives clue about veracity of prosecution’s claim regarding prompt registration of F.I.R--The inquest report comprises upon 24-columns which are followed by an additional page meant for incorporating brief facts of occurrence emerging from contents of complaint. [P. 865] A
Credibility of injured witness--
----An injured witness of murder incident seldom tells lie might be true in a case of single accused but is an overstatement when number of assailants is more than one--It will wholly be unjust to raise superstructure of conviction on deposition of injured witness, without subjecting it to strict test of scrutiny for adjudging his credibility. [Pp. 867 & 868] C
2011 & SCMR 323 & 2011 SCMR 527.
Delay in recording statement of 161--
----Fatal--It is well entrenched principle of appraising evidence that if two interpretations of same fact are possible, one which favours accused is to be adopted--The delay, even of 2/3 days in recording 161, Cr.P.C. statement of an eyewitness of homicide incident is always considered fatal and if no legally admissible explanation about it is offered, then deposition of such witness is to be ousted from consideration. [P. 869] D
2022 SCMR 986.
Site-Plan is not a Substantive Piece of Evidence--
----The site plan is not a substantive piece of evidence, nevertheless, it can be used for adjudging inter se distance of assailant and victim as well as location of eyewitnesses, if proved during trial to have been prepared on pointation of narrators of ocular account.
[P. 872] F
1997 SCMR 89.
Mr. Muhammad Bashir Paracha, Advocate for Appellant.
Syed Mudassir Nazir Naqvi, Advocate for Complainant.
Mr. Naveed Ahmad Warraich, DDPP for State.
Date of hearing: 16.4.2024.
Judgment
Ch. Abdul Aziz, J.--Muhammad Atif Naveed & Muhammad Ishfaq (appellants) along with another co-accused, namely Mulazim Hussain involved in case F.I.R No. 76/2021 dated 17.03.2021 registered under Sections 302,324 & 34, PPC at Police Station Saddar Talagang, District Chakwal, were tried by learned Additional Sessions Judge, Talagang (Chakwal). Trial court vide judgment dated 27.06.2022 while acquitting the afore-said co-accused proceeded to convict and sentence both the appellants in the following terms:
(1) Muhammad Atif Naveed (appellant)
Under Section 302(b), PPC to suffer death sentence as Ta’zir. He was also directed to pay compensation of Rs.5,00,000/- under Section 544-A, Cr.P.C. to the legal heirs of Arab Khan (deceased) and in case of its non-payment the same was ordered to be recoverable as arrears of land revenue and in case of default the appellant was directed to suffer 06-months simple imprisonment.
(2) Muhammad Ishfaq (appellant)
Under Section 324, PPC to suffer rigorous imprisonment for 10-years for attempting to commit qatl-i-amd of Bhag Bhari with fine of Rs.1,00,000/- and in default whereof to further undergo 03-months simple imprisonment. He was also directed to pay Arsh equal to 1/3rd of Diyat amount i.e. Rs.9,26,000/- for the injury caused to Bhag Bhari which was declared as Jurh Jaifah under Section 337-D, PPC. However, he was given the benefit of Section 382-B, Cr.P.C.
Challenging their conviction and sentence, Muhammad Atif Naveed (appellant) filed Criminal Appeal No. 827 of 2022, whereas Muhammad Ishfaq (appellant) preferred Criminal Appeal No. 698 of 2022. Likewise, trial court sent reference under Section 374, Cr.P.C. which was numbered as Murder Reference No. 41 of 2022 for the confirmation or otherwise of death sentence awarded to Muhammad Atif Naveed (convict). Since all these matters are inter se connected, hence are being disposed of through this single judgment.
2. Precisely stated the case of prosecution as unveiled by Sultan Khan (PW.11) in F.I.R (Exh.PG/1) is to the effect that he is resident of village Rehman Abad and agriculturist by profession; that on 17.03.2021 his brother Arab Khan along with his wife Bhag Bhari and daughter-in-law (Bahu) Rukhsana Bibi had come on their motorcycle to attend funeral in village Rehman Abad; that when they were returning home on their motorcycle, the complainant along with Muhammad Hussain while boarding motorcycle was following them in order to see his mother in the house of Arab Khan; that at about 4:30 p.m., when they reached the unpaved Path towards Jhamra Dhoke, Muhammad Ishfaq and Muhammad Atif Naveed on one motorcycle and Mulazim Hussain boarded on another motorcycle crossed them; that the assailants intercepted the motorcycles of the complainant and Arab Khan; that thereafter Mulazim Hussain exhorted to his co-accused for not letting anybody go alive, whereafter Muhammad Ishfaq and Atif Naveed took out pistols from the folds of their trousers while alighting from their motorcycles; that Atif Naveed fired two successive pistol shots which hit Arab Khan on his chest and adjacent to inguinal region who after the receipt of these injuries fell on the ground; that Muhammad Ishfaq also inflicted two fire shot injuries on the abdomen of Bagh Bhari who also collapsed on the ground; that the assailants decamped from the spot when the witnesses raised hue and cry; that the victims were immediately shifted to THQ Hospital where Arab Khan succumbed to the injuries he received during the occurrence and that the incident took place in pursuance of marriage dispute.
3. On 17.03.2021 Muhammad Aslam SI (PW.14) after the receipt of information about the incident reached THQ Hospital Talagang where Sultan Khan (PW.11) appeared before him and got recorded his statement (Exh.PM) which was read over to him. He examined Mst.Bhag Bhari, prepared injury statement (Exh.PJ/2) and handed over the same to Maryam Parveen 473/LC for medical examination. Subsequent thereto, he examined the dead body of Arab Khan, prepared application for postmortem examination (Exh.PE), inquest report (Exh.PF) and handed over the corpse to Waqar Tahir 669/C for postmortem examination. He also informed about the occurrence to the Crime Scene Unit Chakwal and PFSA Rawalpindi. In the meanwhile, he transmitted complaint (Exh.PM) to the police station through Ghulam Ghous 587/C for the registration of formal F.I.R. He also visited the place of occurrence, collected blood stained earth from the spots where Arab Khan and Bagh Bhari fell after the receipt of injuries through respective recovery memos. From the spot, he also collected four crime empties of .30 bore pistol (P.5/1-4) which were taken into possession through memo. Exh.PQ. He also secured motorcycle (P.6) belonging to Arab Khan deceased vide memo. Exh.PR. On 07.04.2021 he arrested Muhammad Atif Naveed and Muhammad Ishfaq (appellants). On 10.04.2021 Muhammad Ishfaq (appellant) made disclosure and in pursuance thereof led to the recovery of pistol .30 bore (P.7) which was taken into possession through memo. Exh.PS. On 11.04.2021 Muhammad Atif Naveed (appellant) during interrogation also got recovered pistol .30 bore (P.9) which was secured through memo. Exh.PT. He after complying legal formalities and recording the statements of relevant witnesses under Section 161, Cr.P.C. got prepared report under Section 173, Cr.P.C. which was submitted in the court upon which the trial commenced.
4. Prosecution in order to prove its case against the appellants produced 14-witnesses, out of whom, Dr.Awais Aftab (PW.5), Dr.Aisha Fida (PW.8), Dr.Zafar Abbas Radiologist (PW.9) and Dr.Usama Jalil (PW.10) furnished the medical evidence, Sultan Khan (PW.11) and Bhag Bhari (PW.12) narrated the ocular account and Muhammad Aslam SI (PW.14) investigated the case. The remaining PWs, more or less, were formal in nature.
5. Dr. Awais Aftab (PW.5) on 17.03.2021 at about 8:15 p.m. conducted the autopsy of Arab Khan (deceased) and noted the following injuries:
(1) It was an entry wound with inverted margins 1 x .5 cm in diameter present on mid clavicular line about 3.5 cm from right nipple in right fourth rib area of right chest.
(2) It was an entry wound with inverted margins 1 x .5 cm present in left quadrant of abdomen about 6 cm from umbilicus in superio- lateral side of left half of abdomen.
(3) It was an exit wound with everted margins 1 x .5 cm present on left half of loin regions about 8 cm from midline on back, blood was oozing from the wound.
(4) Another exit wound with everted margins 1 x .5 cm was present on upper part of left buttock region about 9 cm from injury No. 3.
On 17.03.2021 Dr.Aisha Fida (PW.8) conducted the medico legal examination of Bhag Bhari and noted the following injuries:
(1) Entry wound with inverted margins measuring 1 cm x 1 cm located 8 cm superolateral to umbilicus over left side of abdomen. No blackening over skin around wound margin.
(2) Entry wound with inverted margins measuring 1 cm x 1 cm located 10 cm inferolateral to umbilicus over left side of abdomen. No blackening over skin noted around wound margin.
6. After the conclusion of prosecution evidence, the learned trial court examined the appellants under Section 342, Cr.P.C. who in response to question “why this case registered against you and why the P.Ws have deposed against you” made almost the same reply. For ready reference the reply so made by Muhammad Atif Naveed (appellant) is mentioned hereunder:
“No independent PW deposed against me and my co-accused except the co-related and close relative PW and the complainant and PWs were not present at the place of occurrence. According to Mark-DF, the complainant was present in his home at 17:33 on 17.03.2021 when he received the call from No. 0311-0225700 which is the cell number of the deceased Arab Khan and the complainant was informed by his son. Then at 17:35 complainant informed his son PW Muhammad Hussain on his telephone No. 0304-5969940 when he was present in his home and his son was at Dhoke Mangral and firstly he informed Muhammad Asghar at 17:32 from his cell number to his cell No. 0345-5771488 and similarly he was receiving calls and making calls to all the PWs while he was present in his Dhoke and at 18:03 when he was near Kot Sarang he again contacted with the son of Arab Khan when was already reached in hospital and according to mark-DF at 22:09:58 he was present in court Road Talagang Katchari and according to this statement he was not present at the place of occurrence at the time of occurrence, nor he was present at the place of occurrence at the alleged inspection of the IO for taking rough notes at the place of occurrence. Even the other eyewitnesses were also not present at the time of visit of IO for taking rough notes. According to Crime Scene Unit Report CD P.4, the occurrence was committed in a deserted place as the CD P.4 which copy of provided to the accused after observing it the snap shoot mark DG and Mark DF from where the blood stained earth was taken in presence of officials of Crime Scene Unit, there is lot of gross and deserted place is visible which is shown at five different points and from that evidence it is established that the deceased was murdered in deserted place by some unknown assailants and occurrence was not seen by any witness. Moreover, there is long standing litigation between the parents of the accused and the complainant party and due to such suspicion they wrongly roped me and my co-accused in this case and other are officials PWs are official witnesses and due to their exigency of their services they deposed falsely. Moreover, I was not present at the time of occurrence at the place of occurrence. I am innocent and has no nexus with the commission of alleged offence. ”
The appellants neither made statement under Section 340(2) of Cr.P.C. nor produced any evidence in their defence. On the conclusion of trial, the appellants were convicted and sentenced as afore-stated, hence the instant criminal appeals and murder reference.
7. It is contended by learned counsel for the appellants that the incident in question was committed by some unknown persons and the appellants were falsely implicated in the case on account of suspicion; that even the crime report was registered later in the night but through tampering of record it was made to look as if promptly registered; that the ocular account narrated by the two eyewitnesses suffers from multiple discrepancies rendering them unworthy of any credence; that it reasonably emerges from the careful perusal of documents tendered in evidence that the F.I.R was registered much after the postmortem examination; that the statement of Bagh Bhari was recorded with mysterious delay of 12-days and on this score alone her deposition cannot be made basis for upholding the convictions of appellants; that Sultan Khan was proved during trial to be a chance witness, a factor sufficient to cast doubt about his claim of having witnessed the incident; that the medical evidence is also at variance with the ocular account and the doubt emerging therefrom is to be extended to the appellants and that since prosecution miserably failed to prove its case against the appellants, thus their convictions are to 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 case is arising out of a promptly lodged F.I.R wherein appellants are ascribed the role of causing injuries to Arab Khan and Bhag Bhari; that the guilt of appellants is well established from confidence inspiring ocular account furnished by two witnesses including injured Bhag Bhari; that the medical evidence provides full support to the ocular account and no conflict is arising out of it; that the corroboration can well be sought from the duly proved motive and positive report of PFSA according to which the weapons recovered from the appellants matched with the crime empties secured from the spot and that since the prosecution successfully proved its case against the appellants, thus the convictions awarded to them be upheld.
9. Arguments heard. Record perused.
10. The roots of the case are traced in an unfortunate incident which occurred on the afternoon of 17.03.2021. During this incident, Arab Khan, his wife Bagh Bhari and daughter-in-law Rukhsana Bibi were confronted with a murderous assault mounted by a bunch of assailants comprising upon Atif Naveed, Muhammad Ishfaq and Mulazim Hussain. The aggression of the assailants culminated in the homicidal death of Arab Khan (deceased) and firearm injuries to his wife Bagh Bhari (PW.12). So far as, Rukhsana Bibi (given up) is concerned she remained lucky enough to return scratchless from this incident. It is equally important to mention here that the incident took place when Arab Khan (deceased) along with Bagh Bhari (PW.12) and Rukhsana Bibi were on way back to their house while boarding a motorcycle after attending the funeral in nearby village.
11. According to record, the crime scene was situated at a distance of 15-kilometers from Police Station Talagang and after about 15 to 30 minutes of the incident, the victims were shifted to THQ Hospital Talagang. Muhammad Aslam SI (PW.14) reached THQ Hospital and recorded the statement of Sultan Khan (PW.11) which was transcribed as complaint (Exh.PM) at about 6:55 p.m. and immediately thereafter was dispatched to police station for the registration of formal F.I.R (Exh.PG). On the basis of afore-mentioned data it was vociferously argued by learned counsel for the complainant that the promptly registered F.I.R out-rightly excludes the possibility of any fabrication and false implication. We are not oblivious of the fact that the practice of stopping the Station Diary/Rozenamcha as well as the F.I.R Register is rampant in our system of criminal investigation through which even the delayed F.I.Rs are shown to have been promptly registered. We examined the record with utmost care and came across multiple factors which cast strong doubt upon the acclaimed prompt registration of F.I.R. Firstly, it is noticed from the police proceedings mentioned at the bottom of F.I.R (Exh.PG) that complaint (Exh.PM) was drafted in THQ Hospital and was transmitted to Police Station Saddar Talagang through Ghulam Ghous 587/C. Inevitably, for proving the registration of F.I.R without any uncalled for delay the evidence of afore-mentioned Ghulam Ghous 587/C had crucial importance but surprisingly he was not produced as witness during trial of the case. As this was not enough, Muhammad Aslam SI (PW.14) candidly admitted that during investigation the statement of Ghulam Ghous Constable was not recorded under Section 161, Cr.P.C. and for this omission he failed to offer any explanation. The importance of such omission can be highlighted from the observation of the Supreme Court of Pakistan in the case reported as Minhaj Khan v. The State (2019 SCMR 326) which is as under:
“……… the non-production of Constable Jehanzeb Khan who took the written complaint and was an eye-witness of the occurrence and of the recovery memorandums; and the inexplicable conduct of the Complainant PW-2 in not proceeding to the police station himself to register the FIR are matters of concern and collectively of incredulity. The conclusion therefrom that we draw is that the prosecution had failed to establish its case against the petitioner beyond reasonable doubt, or, at worst, that the petitioner was involved in a false case for ulterior reasons.”
The inquest report is a document prepared under Rule 35 of Chapter 25 of Police Rules, 1934 and its circumspective perusal gives traces about the manner in which investigation of a homicide case is conducted on the first day and besides that it also gives clue about the veracity of prosecution’s claim regarding the prompt registration of F.I.R. The inquest report comprises upon 24-columns which are followed by an additional page meant for incorporating the brief facts of the occurrence emerging from the contents of complaint. According to the sequence of proceedings required to be carried out by the police in a murder case, firstly the statement of complainant for the registration of F.I.R is recorded and then the spot inspection is carried out, whereafter the inquest report is to be prepared. Columns No. 1 to 24 of inquest report are meant to mention various factors which include the place of incident, the time of receipt of its information, the detail of injuries on the corpse, the kind of weapon used and the articles recovered from the crime scene. The most important aspect is the brief facts of the case required to be mentioned on its last page. The inquest report is a document which is essentially required to be provided to the medical officer for holding of postmortem examination. The purpose of providing inquest report to the medical officer before the autopsy apparently is aimed at safeguarding the record from becoming vulnerable to the impurity of tampering through which the delayed F.I.Rs are shown to have been promptly registered. In the instant case, we have noticed that on the last page of inquest report (Exh.PF) the brief facts of the case are not mentioned properly. The relevant page gives no information about the identity of the assailants, the weapons used in the commission of crime, the manner in which the incident occurred and above all its time. The most important aspect noticed from the last page of inquest report is to the effect that no reference about Bagh Bhari (PW.12) having received injuries in the incident is made. The same incomplete inquest report was provided to the medial officer before the commencement of autopsy. The question of vital importance arises that if at all the statement of complainant (Exh.PM) had been recorded before the postmortem examination, then why the tale of incident was not mentioned on the page of inquest report (Exh.PF) meant for incorporating the brief facts of the case. All the afore- mentioned omissions give vent to an inescapable conclusion that till the time corpse of Arab Khan was subjected to postmortem, the veil had not been lifted from the identity of the assassins. We have no doubt in our minds that the F.I.R was registered much after the postmortem examination and through this malpractice the eyewitnesses gained advantage of adjusting their statements in accordance with locale and nature of injuries pointed out by the medical officer. It will not be out of place to mention here that in accordance with the guidelines given by Dr.S.Siddiq Husain in Chapter-III MEDICO-LEGAL POSTMORTEM EXAMINATION of A Text Book of Forensic Medicine and Toxicology, the medical officer is required to sign and examine each page of the inquest report before the postmortem examination. The Supreme Court of Pakistan in the case reported as Mst. Yasmeen v. Javed and another (2020 SCMR 505) while dilating upon the non-mentioning of brief facts in the inquest report observed as under:
“In addition to the said findings, it has been observed by us that the occurrence in this case, as per prosecution, took place on 19.02.2005 at 10:00 p.m. The matter was reported to police in the intervening night of 19/20.02.2005 at 1.00 a.m. (night). The postmortem examination on the dead body of Mst.Naheeda (deceased) was conducted by Dr. Faiqa Elahi (PW.7) on 20.02.2005 at 8.50 a.m. Even if delaying conducting the postmortem examination on the dead body of deceased, in the circumstances of the case, is ignored, the fact remains that in the relevant column of inquest report “brief history of crime”, nothing is mentioned regarding facts of the case despite the claim of prosecution that matter was reported to police within three hours of the occurrence i.e. in the intervening night of 19/20.02.2005 at 1.00 a.m. (night). This circumstance alone casts serious doubts about the veracity of prosecution case against the respondents and the claim of eye-witnesses Mst.Yasmeen (PW.5) and Mst.Kabalo (PW.6) to have witnessed the occurrence”.
Another observation of the Division Bench of this Court given in the case reported as Wasi Haider v. The State (2022 PCr.LJ 1695) on account of its relevancy is being mentioned hereunder:
“The circumspective scrutiny of record unfortunately reveals that the case in hand is also riddled with the evil of record tampering. The inquest report (Exh.CW.3-4), as per record, though was provided to medical officer before autopsy but its page meant for incorporating brief facts of case does not contain the tale of incident mentioned in FIR (Exh.CW4/1). We have anxiously noted that on the relevant page of inquest report neither the name of any perpetrator is mentioned nor the manner in which the crime occurred is stated even tentatively. This omission gives a strong clue that the FIR was not registered till the holding of postmortem examination. We feel a pressing need to reiterate here that murder incident took place at 10:15 p.m., the complaint (Exh.PB) was drafted at 2:30 a.m., whereas autopsy was conducted at 3:00 a.m. The question arises that if at all before holding of autopsy the complaint (Exh.PB) was complete in all respects then why its contents were not mentioned in column of inquest report meant for the brief facts. A conclusion is inevitable that till holding of autopsy the complaint (Exh.PB) was still in process of preparation apparently through consultation and deliberation etc.”
12. The facts mentioned in the preceding para prompted us to scan the ocular account with extreme care and caution. The saga of homicide incident was furnished by Sultan Khan (PW.11) and Bagh Bhari (PW.12) who were related with Arab Khan (deceased) as brother and wife respectively. Out of these witnesses, Bagh Bhari (PW.12) claimed to have endured firearm injuries on her abdomen and the foregoing fact was described by the prosecution as affirmative proof of her truthful deposition. We acknowledge that the receipt of grievous hurt by an eyewitness in the murder incident though is a factor which reflects positively upon his presence at the spot but it is not a conclusive proof about the truth of his deposition. For handing down guilty verdict to an accused in such incident, the testimony of an injured eyewitness is still required to be tested on the touchstone of the principles laid down for the appraisal of evidence. To say that an injured witness of murder incident seldom tells lie might be true in a case of single accused but is an overstatement when the number of assailants is more than one. It will wholly be unjust to raise the superstructure of conviction on the deposition of injured witness, without subjecting it to strict test of scrutiny for adjudging his credibility. 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 Supreme Court of Pakistan observed as under:
“Certainly, the presence of injured witnesses 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 P.Ws. would not stamp them truthful witnesses.”
In another case reported as Nazir Ahmad v. Muhammad Iqbal and another (2011 SCMR 527), the Supreme Court of Pakistan while examining the case of an injured witness held 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).”
It is noticed that the incident occurred on 17.03.2021 whereas 161, Cr.P.C. statement of Bagh Bhari (PW.12) was recorded on 29.03.2021. The afore-mentioned delay of about 12-days in recording of 161, Cr.P.C. statement was attributed during trial by the prosecution to the precarious medical condition of Bagh Bhari (PW.12). As per record, Bagh Bhari (PW.12) initially was brought to THQ Hospital Talagang and was provided medical treatment by Dr.Ayesha Fida (PW.8) from where she was referred to DHQ Hospital, Rawalpindi. As per prosecution claim, Bagh Bhari (PW.12) also remained admitted in CMH Rawalpindi but no supporting evidence in this regard was led during trial. Nevertheless, Muhammad Aslam SI (PW.14) moved an application (Exh.PX) and thereby sought the opinion that whether Bagh Bhari (PW.12) is medically fit to make a lucid statement upon which it was reported by Brig. Muhammad Saqib CL. Anaesthetist that the needful cannot be done due to the critical condition of the patient. Admittedly, Brig. Muhammad Saqib was neither cited witness in the case nor he appeared as such in the dock, a fact sufficient to discard Exh.PX from consideration. Above all, we took note of the fact that at the time of initial medical examination carried out by Dr.Ayesha Fida (PW.8), she found Bagh Bhari (PW.12) conscious and oriented in time and place. Last but not the least, Bagh Bhari (PW.12) was relieved from hospital on 25.03.2021, as is evident from Discharge Certificate (Exh.PL). The question of pivotal importance arises that if at all Bagh Barhi was having normal Glasgow Coma Scale (GCS) at the time of her examination by Dr.Ayehsa Fida (PW.8) on 17.03.2021, then why her statement under Section 161, Cr.P.C. was postponed till 29.03.2021. We have also noticed that the Investigating Officer had reached THQ Hospital by the time Bagh Bhari was admitted there for medical treatment but still he made no effort to record her statement under Section 161, Cr.P.C. The afore-mentioned delay in recording 161, Cr.P.C. statement of Bagh Bhari gains significance when seen in the context that no explanation about it was offered during trial as well as before us. Even otherwise, Bagh Bhari (PW.12) was discharged from hospital on 25.03.2021 but still her statement was recorded four days thereafter for which again no explanation is offered by the prosecution. Such delay gives vent to many hypotheses about the truth behind the statement of Bagh Bhari (PW.12) leaving her unworthy of any credence. On one hand, it gives clue that the actual assailants were previously not known to Bagh Bhari and on the other hand it gives birth to the possibility that the appellants were falsely grilled in the case through the tool of substitution with actual unknown assailants. It is well entrenched principle of appraising the evidence that if two interpretations of same fact are possible, the one which favours the accused is to be adopted. The delay, even of 2/3 days in recording 161, Cr.P.C. statement of an eyewitness of homicide incident is always considered fatal and if no legally admissible explanation about it is offered, then the deposition of such witness is to be ousted from consideration. Reliance is placed on case reported as Bashir Muhammad Khan v. The State (2022 SCMR 986) wherein the Supreme Court of Pakistan observed as under:
Delayed recording of statement of PW under section 161, Cr.P.C. reduces its value to nil unless and until it is explained rendering justiciable reasonings. Reliance is placed on the judgment reported as Abdul Khaliq v. The State (1996 SCMR 1553). This judgment was followed by this Court in another judgment reported as Noor Muhammad v. The State (2020 SCMR 1049) as also in an unreported judgment passed in Criminal Petition No. 537/2021. Keeping in view the conduct of the PWs, it would not be safe to only rely upon their statements to sustain conviction of the appellant and there must be some independent corroboration to the extent of his involvement in commission of the crime.”
13. We have also examined the evidence of complainant Sultan Khan (PW.11) with best possible circumspection and have come to the conclusion that he failed to satisfactorily establish his presence at the crime scene. Sultan Khan (PW.11) claimed that at the eventful time he while boarding on a motorcycle along with his son Muhammad Hussain was following the bike upon which the two victims along with Rukhsana Bibi were seated. As per deposition of Sultan Khan (PW.11) after about 10-15 minutes of the incident he along with Muhammad Hussain and Rukhsana Bibi proceeded to THQ Hospital while placing the victims of murderous assault in the Suzuki Pick-up of Ihtisham Driver. We have anxiously noticed that Sultan Khan gave no description of his own bike as well as of the assailants. In our view, Sultan Khan (PW.11) was incumbently required to mention at least the particulars of the motorcycle on which he along with his son Muhammad Hussain was boarded. Besides that, nothing as such is available on record that to whom Sultan Khan (PW.11) and his son Muhammad Hussain entrusted their bike which according to them was left behind at the place of murder while proceeding to THQ Hospital. Above all, the motorcycle of Sultan Khan was also not exhibited during his evidence recorded before the trial court. If we exclude the bike from the whole story of crime then it necessitates to hold that the claim of Sultan Khan (PW.11) about his presence at the crime scene has no shred of truth in it. If at all Sultan Khan (PW.11) and his son Muhammad Hussain were present at the crime scene along with their bike, at least one out of them should have driven it to THQ Hospital behind the Suzuki Pick-up in which the victims were shifted from the spot. The presence of a witness is not to be inferred solely on the basis of his claim, rather is to be ascertained by subjecting it to the test of strict scrutiny from the attending circumstances.
We have also come across a glaring conflict between the stance of Sultan Khan (PW.11) and the injured Bagh Bhari (PW.12) which casts doubt about the presence of former at the crime scene. Sultan Khan (PW.11) claimed that the victims were taken to THQ Hospital in the Suzuki Pick-up of Ihtisham Driver and none else was with him. Since this is an important aspect, hence an extract from his cross- examination is being reproduced hereunder:
“Both the injured Arab Khan and Bagh Bhari were shifted in Talagang through a Suzuki Pick-up owned by one Ihtisham. I along with Muhammad Hussain, Rukhsana Bibi were boarded in Suzuki Pick-up along with two injured. Both the injured were placed on the seats of the Suzuki Pick-up. I placed the head of my brother Arab Khan in my lap and Rukhsana Bibi placed the head of Bagh Bhari in her lap, whereas Muhammad Hussain has put a piece of cloth on the injuries of Arab Khan. We left the place of occurrence at about 4:45/5:00 p.m. for THQ Hospital Talagang and reached in THQ Hospital Talagang at about 5:45/6:00 p.m. We did not stop in the way to THQ Hospital Talagang. No other person except above said five persons boarded in Suzuki Pick-up and in the front seat Ihtisham Driver was alone.”
On the other hand, Bagh Bhari (PW.12) stated during cross- examination that Muhammad Irfan along with Ihtisham reached the place of occurrence and both of them accompanied to THQ Hospital. The question of foremost importance arises that if at all Sultan Khan (PW.11) witnessed the occurrence and also accompanied the victims to THQ Hospital then why he omitted to mention the name of Muhammad Irfan. Beyond everything, we have our concerns that why Ihtisham (driver) was not cited as witness in the case though he was the one who was instrumental in shifting the victims to hospital. In case reported as Qadir Bakhsh and another v. State and another [PLJ 2003 Cr.C. (Quetta) 157 (DB)], a learned Division Bench of Quetta High Court acquitted the accused wherein the person who brought the deceased to the hospital was not produced during trial with the following observation:
“It had come on record that Abdul Sattar who took the deceased in Suzuki Pick Up informed the complainant about the said incident; Abdul Sattar is a very material and important witness but he has not been examined which further creates a dent in the prosecution case and presumption would be that had he appeared, he would not have supported the prosecution version.”
The things get more complex when seen in the context that though according to column No. 2 of F.I.R (Exh.PG) Sultan Khan (PW.11) was having a mobile phone No. 03025700475 but he candidly conceded to have not informed anybody about the occurrence through a phone call. Such conduct runs contrary to the natural human response which one is expected to demonstrate after having met such tragic incident. We intend to add that Sultan Khan (PW.11) was real brother of Arab Khan (deceased) and it sounds no logic that he would call none through his mobile phone for intimating perhaps the most heart-wrenching incident of his life. For the safe administration of justice, the foregoing facts are sufficient for us to discard the stance of Sultan Khan (PW.11) about his presence at the spot.
14. The medical evidence is confirmatory to ocular account and its careful perusal gives clue about the truth behind the depositions of eyewitnesses regarding their stance of having seen the incident. A medical officer who enters the dock during trial indeed through his testimony enables the Court to adjudge the veracity of an eyewitness for administering justice in an impeccable manner. If the statement of an eyewitness is at variance with the medical evidence, it gives rise to a doubt the legitimate benefit of which cannot be taken away from the accused facing charge of murder. In the instant case, it is observed from the site plan (Exh.PH/1-3) that Atif Naveed (appellant) inflicted firearm injuries to Arab Khan from a distance of half karam (2.5 feet) only. Such distance is further reduced keeping in view the fact that the assailant must have stretched his arm to press the trigger for targeting Arab Khan (deceased). In such circumstances, there should have been marks of blackening, tattooing or charring but nothing as such was observed by Dr. Awais Aftab (PW.5) during autopsy around the entry margins of the two firearm wounds. According to Modi’s Medical Jurisprudence and Toxicology (24th Edition), the blackening is found, if a firearm is discharged from a distance of not more than three feet.
We are mindful of the fact that the site plan is not a substantive piece of evidence, nevertheless, it can be used for adjudging the inter se distance of the assailant and victim as well as the location of the eyewitnesses, if proved during trial to have been prepared on the pointation of the narrators of ocular account. If any reference in this regard is needed that can be made to the case reported as Muhammad Ahmad and another v. The state and others (1997 SCMR 89) wherein the Supreme Court of Pakistan held as under:
“The site plan was prepared by the Draftsman on the pointation of the eye-witnesses: It could, therefore, well be referred to for determining the respective positions of the assailant/appellant and the deceased.”
In the instant case, Sultan Khan (PW.11) stated in unequivocal terms during cross-examination that the site plan was prepared on his pointation. Keeping in view the foregoing fact, we consider it expedient to mention hereunder an extract from the cross-examination of Sultan Khan (PW.11):
“We pointed out the points at the place of occurrence where the accused were standing at the time of occurrence.”
15. As regards motive, it was described by the prosecution as a grudge stemming out of a marriage dispute with the accused persons. Sultan Khan (PW.11) and Bagh Bhari (PW.12) while appearing before the trial court reiterated same motive but added not a single word to lift veil from its details. On this score alone, motive can safely be held to have remained unproved during trial. We are also mindful of the fact that during investigation, pistols (P.7 & P.9) were recovered from Muhammad Ishfaq and Muhammad Atif Naveed (appellants) and according to report of PFSA (Exh.PBB), these were found wedded with the crime empties secured from the spot. The positive report of PFSA
(Exh.PBB) loses legal acceptance as corroboratory piece of evidence when seen in the context that the ocular account stands disbelieved.
16. In pursuance of our nisus of scrutinizing the record and the points formulated in the preceding paras, the outcome is inevitable that prosecution failed to satisfactorily prove its case against the appellants beyond scintilla of any doubt. The occurrence admittedly stands on higher pedestal in reference to its gravity but the appellants cannot be condemned on this score alone rather are to be held guilty upon the affirmative proof of their guilt. In the foregoing circumstances, we allow Criminal Appeal No. 827 of 2022 & Criminal Appeal No. 698 of 2022, while giving benefit of doubt in favour of Muhammad Atif Naveed and Muhammad Ishfaq (appellants), acquit them of the charge and in consequence whereof, set aside their conviction and sentence. They are in custody; be released forthwith if not required to be detained in any other criminal case. Resultantly, Murder Reference No. 41 of 2022 is answered in the NEGATIVE and death sentence awarded to Muhammad Atif Naveed (convict) is NOT CONFIRMED.
(K.Q.B.) Appeal allowed
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