PLJ 2025 Cr.C. 112 (DB)
[Lahore High Court, Rawalpindi Bench]
Present: Mirza Viqas Rauf and Ch. Abdul Aziz, JJ.
ZEESHAN AHMED and others--Appellants
versus
STATE and others--Respondents
Crl. A. Nos. 851 & 960 & M.R. No. 65 of 2022, heard on 11.9.2024.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Qatl-e-amd--Conviction and sentence--
- عینی شاہدین کو چیلنج کرنا - ثبوتوں کا جائزہ - میڈیکل آفیسر کو لازمی طور پر اس کے صفحات پر دستخط کرنے کی ضرورت تھی اور اس طرح کے تقاضوں کا بنیادی مقصد اس بات کو یقینی بنانا تھا کہ پوسٹ مارٹم جانچ سے پہلے ایف آئی آر کا اندراج کیا گیا تھا - اگر ایف آئی آر محمد جہانگیر کے پوسٹ مارٹم سے پہلے رجسٹرڈ تھا تو پھر Exh.PG/1 کے صفحہ 3 میں واقعہ کی کہانی کیوں نہیں تھی - اس سوال کا جواب واضح تھا کہ چونکہ ایف آئی آر کا اندراج ابھی تک جاری تھا۔ پھر اس طرح جرم کی کہانی کو کوئی جگہ نہیں ملی - عینی شاہدین موقع پر موجود نہیں تھے - عدالتی آرکائیوز ایسی مثالوں سے محروم نہیں تھے جن میں طبی شواہد سے متصادم پائے جانے کے بعد آنکھوں کے اکاؤنٹ کو خارج کردیا گیا تھا - دونوں عینی شاہدین کے بیانات عقلمندی سے مطابقت نہیں رکھتے تھے - پہلی بات یہ کہ اگر گاڑی پر گولی چلائی گئی تھی تو گولیوں کے کچھ نشان ات ہونے چاہئیں جو اس کے کسی حصے پر موجود نہیں تھے - دوسرا ، چونکہ استغاثہ کے مقدمے کے مطابق دونوں متوفیوں کو گاڑی میں بیٹھنے کے دوران کچھ چوٹیں آئی تھیں اس لیے سیٹوں، چٹائیوں یا دروازوں پر خون کے دھبے پڑنا چاہیے تھے- تیسرا، اگر سائٹ پلان کے پوائنٹ نمبر 3 اور 4 اور دونوں عینی شاہدین کے بیانات میں کچھ صداقت تھی تو گاڑی کو گولی مار دی جانی چاہیے تھی- مذکورہ عوامل عینی شاہدین کی موقع پر موجودگی پر مضبوطی سے غور کرنے کے لیے کافی تھے اور قانونی وارث وں کو کیس کے اصل حقائق کا علم نہیں تھا۔ استغاثہ اپنے کیس کو ثابت کرنے میں بری طرح ناکام رہا- اپیل کنندگان سے متاثرہ .30 بور پستول کی برآمدگی اور پی ایف ایس اے کی مثبت رپورٹ کہ ان کا موقع سے محفوظ جرائم کے نشانات سے میل کھاتا ہے، زیادہ سے زیادہ اس کا استعمال آنکھوں کے اکاؤنٹ کی تصدیق میں کیا جا سکتا ہے جس سے انکار کیا گیا تھا - اگر ٹھوس ثبوت متعدد شکوک و شبہات کا شکار پائے گئے، دوسرے حالات سے تصدیق حاصل کرنے کی ضرورت نہیں تھی۔
Challenge to--Eye-witnesses were not present--Appraisal of evidence--The Medical Officer was compulsorily required to sign its pages and such requirements were primarily aimed at ensuring that F.I.R was registered before post-mortem examination--If at all F.I.R had been registered before autopsy of Muhammad Jahangir then why page-3 of Exh.PG/1 was not containing tale of incident--The answer of that question was obvious that since registration of F.I.R was still in process till then thus story of crime found no place--Eye-witnesses were not present at spot--The judicial archives were not bereft of precedents wherein ocular account was discarded after finding it in conflict with medical evidence--The statements of both eye-witnesses were unbefitting to prudence--Firstly, if at all shots were fired on vehicle then there should had been some bullet marks which were not present on any of its part--Secondly, since as per prosecution case both deceased received some injuries while sitting in car there should had been blood stains on seats, mats or doors--Thirdly, if points No. 3 & 4 of scaled site plan and statements of both eye-witnesses were having some truth then vehicle should had been bullet ridden--The factors mentioned were sufficient enough to reflect strongly upon absence of eye-witnesses at spot and indeed legal heirs were clueless about actual facts of case--The prosecution miserably failed to prove its case--The recovery of .30 bore pistols affected from appellants and positive report of PFSA about their matching with crime empties secured from spot were concerned, same at most could be used in corroboration of ocular account which otherwise had been disbelieved--If substantive evidence was found to be suffering from multiple doubts, there was no need to seek corroboration from other circumstances.
[Pp. 121, 124, 126 & 128] A, B, C, D & E
2020 SCMR 505; 2019 SCMR 129; 1935 Appeal Cases 462;
PLD 1953 FC 115 & 2023 PCr.LJ 143.
M/s. Fakhar Hayat Awan, Saad Waqas & Jawad Hussain Aadil, Advocates for Appellants.
Malik Waheed Anjum, Advocate for Complainant.
Mr. Naveed Ahmad Warraich, Deputy District Public Prosecutor for State.
Date of hearing: 11.9.2024.
Judgment
Ch. Abdul Aziz, J.--Zeeshan Ahmed & Imran Ahmed (appellants) along with 4-others, namely, Muhammad Sadiq, Maroof Akhtar, Sheraz Ahmed and Ibrar Ahmad involved in case F.I.R No. 279/2021 dated 03.03.2021 registered under Sections 302, 324, 148, 149 & 109 of Pakistan Penal Code, 1860 (PPC) at Police Station Civil Lines, Rawalpindi, were tried by learned Additional Sessions Judge, Rawalpindi. Trial Court vide judgment dated 31.10.2022 while acquitting the afore-said co-accused proceeded to convict and sentence the appellants in the following terms:
Under Section 302(b), PPC to suffer death sentence on two counts as Ta’zir. They were also directed to pay compensation of Rs. 5,00,000/-under Section 544-A of the Code of Criminal Procedure, 1898 to the legal heirs of each deceased, which in failure of its payment, was ordered to be recoverable as arrears of land revenue and in default of recovery of compensation to suffer 06-months simple imprisonment.
Challenging their conviction and sentence Zeeshan Ahmed & Imran Ahmed (appellants) filed Criminal Appeal No. 851 of 2022, whereas Muhammad Shafiq (complainant/PW.7) filed Criminal Appeal No. 960 of 2022 against the acquittal of Muhammad Sadiq, Sheraz Ahmed, Ibrar Ahmed and Maroof Akhtar (Respondents No. 1 to 4). Likewise, trial Court sent reference under Section 374 of the Code of Criminal Procedure, 1898 (Cr.P.C.) which was numbered as Murder Reference No. 65 of 2022 for the confirmation or otherwise of death sentence awarded to Imran Ahmed and Zeeshan Ahmed (convicts). All these matters are being decided through this single judgment on account of their inter se connection.
2. Succinctly stated the facts of the prosecution case as disclosed by Muhammad Shafique (PW.7) in F.I.R (Exh.PJ) are to the effect that on 02.03.2021 in accordance with daily routine he was going back to his home along with Muhammad Sharif, Waqar and Jahangir in his Toyota Corolla car having registration No. AEB-915; that at about 10:00 p.m. when they reached near Bata Chowk Tariq Abad, a white coloured car VXR having registration No. PW/602 driven by Muhammad Sadiq intercepted them; that Maroof, Zeeshan and Sheraz alighted from this car and in the meanwhile Ibrar and Imran also emerged on the scene while seated on a motorcycle; that Sadiq Khan shouted to eliminate Waqar upon which Zeeshan fired multiple shots from his pistol at Waqar; that thereafter in an attempt to save his life Muhammad Waqar alighted from the vehicle by opening its door and endured multiple fire-arm injuries; that Imran also resorted to firing through his pistol aiming at Muhammad Jahangir who also came out of the car and received bullet injuries whereafter he fell on the ground; that the reports of fire shots attracted many people to the spot whereupon all the assailants decamped from the spot while leaving behind car having registration No. PW/602; that the motive behind the occurrence was stated to be the suicide of Faraz son of Sadiq, the reason of which was pointed towards Muhammad Waqar and for this reason the accused repeatedly expressed vengeance against him; that the homicide occurrence took place at the instigation of Sadiq and Maroof.
3. On 02.03.2021 Syed Imran Haider SI (PW.10) along with other police officials after the receipt of information qua the incident reached DHQ Hospital, Rawalpindi and recorded statement (Exh.PN) of Muhammad Shafique (PW.7). He drafted application for post-mortem examination of Waqar (Exh.PE), inquest report (Exh.PE/1) and handed over the dead body along with police papers to Constable Faisal for autopsy. Thereafter, he prepared injury statement (Exh.PD/1) of Jahangir. He sent complaint (Exh.PN) to the police station through Constable Muhammad Waseem-ul-Haq for the registration of formal F.I.R. Subsequent thereto, he visited the spot and prepared unscaled site plan (Exh.PV). He also collected blood through piece of cotton from the place of murder of Waqar (deceased) through memo. Exh.PO. He also collected blood through cotton from the place of injury of Jahangir vide memo. Exh.PP. From the spot, he also took into possession 11-crime empties of .30 bore pistol (P.19/1-11) through memo. Exh.PQ. The Investigating Officer also took into possession car GLI having registration No. AEB-915 (P.20) and car having registration No. PW-602 (P.21) through memos Exh.PR & Exh.PS respectively. He also moved application (Exh.PW) to the Medical Officer as to whether injured Muhammad Jahangir was in a position to get recorded his statement or not, through which the doctor opined that he was not in a position to give statement. Meanwhile, upon the receipt of information that Jahangir also died, he prepared application for post-mortem examination (Exh.PG), inquest report (Exh.PG/1) and deputed Constable Faisal Hussain for autopsy. On 10.03.2021 he arrested three accused, namely Muhammad Sadiq, Imran Ahmed and Maroof Akhtar. On 14.03.2021 Imran Ahmed accused made disclosure and in pursuance thereof led to the recovery of .30 bore pistol (P.15) which was taken into possession through memo. Exh.PL. On 14.04.2021 ad interim pre-arrest bail of two accused, namely Sheraz and Ibrar was confirmed, whereas the pre-arrest bail petition of Zeeshan accused was withdrawn and accordingly he was arrested. On 23.04.2021 during interrogation Zeeshan Ahmad accused made disclosure and got recovered pistol .30 bore (P.17) which was taken into possession vide memo. Exh.PM. He after recording the statements of the relevant PWs and complying legal formalities got prepared report in terms of Section 173, Cr.P.C.
4. Prosecution in order to prove its case against the appellants produced 10-witnesses, out of whom, Dr. Ahmad Bilal (PW.2) furnished the medical evidence, Muhammad Shafique (PW.7) & Muhammad Sharif (PW.8) narrated the ocular account and Syed Imran Haider SI (PW.10) investigated the case. The remaining PWs, more or less, were formal in nature.
5. On 02.03.2021 at about 10:34 p.m. Dr.Ahmed Bilal (PW.2) medically examined Muhammad Jahangir (when alive) and noted the following injuries:-
(1) Entry wound of fire-arm injury in right side of abdomen 2 cm x 3 cm and multiple pellets injury around the wound.
(2) Entry wound on right elbow of fire-arm injury about 1 cm x 1.5 cm.
Dr. Ahmed Bilal on 02.03.2021 at about 3:15 a.m. conducted the post-mortem examination of Muhammad Waqar and observed the following injuries:-
(1) Entry wound 1 cm x 1 cm of fire-arm injury on back hear axilla, 7 cm from posterior axillary line plane.
Exit wound on sternoclavicular joint (right) 1 cm x 1 cm.
(2) Entry wound on right arm 1 cm x 1 cm posterior aspect 11 cm from elbow joint.
Exit wound 2 cm x 2 cm medial aspect of right arm 8 cm from axilla, fractured humerus.
(3) Entry wound on right forearm 1 cm x 1 cm of fire-arm injury on lateral aspect, 9 cm below elbow joint.
Exit wound on medial aspect of right forearm 1 cm x 1.5 cm, 11 cm from below elbow joint.
(4) Entry wound of fire-arm injury on right side of abdomen/flank 2 cm x 2 cm, 26 cm below axilla in align with posterior axillary line.
Exit wound 1 cm x 1 cm on left side of chest abdomen 13 cm below left nipple in anterior axillary line.
(5) Entry wound on mid axillary line in flank 2 cm x 2 cm, 18 cm lateral to umbilicus.
(6) Abrasion of right chest 2 cm x 3 cm, 6 cm from right nipple.
(7) Bruise on left side of chest 1 cm x 1 cm, 5 cm above nipple.
According to the doctor, Muhammad Waqar died because of the above-said fire-arm injuries leading to damage to the vital organs.
On 03.03.2021 at about Dr.Ahmed Bilal conducted the post-mortem examination of Muhammad Jahangir and noticed the following injuries:-
(1) Entry wound of fire-arm injury on right elbow posterior aspect 1 cm x 1.5 cm.
Exit wound on medial aspect of triceps 1 cm x 1 cm.
(2) Laparotomy wound 27 cm in midline, stitched.
(3) 7 cm x 4 cm stoma wound in right inguinal area.
(4) Entry wound of fire-arm injury on right side of abdomen 1 cm x 1 cm, 4 cm below costal margin.
(5) Entry wound of fire-arm injury 3 cm x 2 cm, just 3 cm above Injury No. 4.
(6) Multiple pallets injury around right inguinal area of 20 cm x 18 cm.
The doctor opined that Muhammad Jahangir died due to fire-arm injuries leading to blood loss and damage to the vital organs.
6. After the conclusion of prosecution evidence, the learned trial Court also examined the appellants under Section 342, Cr.P.C., who in response to question “why this case is against you and why the PWs deposed against you” gave one common reply which is as under:
“I have been falsely implicated in this case along with other family members. Ibrar had a quarrel with Waqar a week before this incident on city Saddar road where both were running their sentry shops but the matter was patched up on the same day. Unfortunately, this incident took place at night by unknown accused persons who were armed with at least two different weapons but complainant party in connivance with local police instead of tracing unknown culprits falsely implicated me and my all family members to satisfy their grudge.
Witnesses are closely related to each other so they volunteered to become false witness in this case to strengthen the false prosecution case.
Furthermore admittedly it is a night occurrence and no source of light whatsoever is mentioned in the F.I.R. Although, subsequently source of light is shown in both rough site plan and scaled site plan but altogether contradicted to each other. Lights are not taken into possession and justification given in this aspect exposes the dishonest investigation of police. I.O. admitted in cross-examination that in Ex.PN (complaint) no source of light including light of bulb, street light or head lights of any vehicle are mentioned.
Nothing was recovered from personal search of both the deceased i.e. cash or mobile phones etc which also indicate that the occurrence may be outcome of some robbery or dacoity.
Complainant and Muhammad Sharif PW are chance witnesses. Complainant could not substantiate ownership of his alleged factory at Westridge and employment of Muhammad Shareef PW there. Muhammad Sharif PW admitted in his cross-examination that Shafiq is owner of sentry shop running with the name of Sherjeel sentry store at City Saddar road Rawalpindi, he also admitted that Waqar deceased had a Sentry Shop at City Saddar road Rawalpindi. Complainant in F.I.R stated that he left factory in his car GLI AEV 915 and was going to his house. It has been proved on record that GLI did not belong to him and Jahangir was registered owner and last possessor of the vehicle and occurrence also took place near the residential houses of both Waqar and Jahangir deceased. Muhammad Sharif had not disclosed reason of presence in the car and has told only residential address of Kashmir. It is also proved on record that even if one goes from Westridge to the residence of complainant place of occurrence do not fall in the way. Complainant admitted that the inter se distance between place of occurrence and his house 15/20 whereas between place of occurrence and Westridge it consumed 35/40 minutes.
Complainant and PW has taken total U-turn from the story introduced in the F.I.R and changed even the venue of occurrence. The pointation of PWs regarding occurrence reduced into writing by the I.O. while preparing inspection notes, rough site plan of place of occurrence and reduced into writing by draftsman in scaled site plan are completely contradictory to each other. According to F.I.R both the deceased received injuries outside the car whereas according to above referred documents both the deceased received first fire-arm injury inside the car and after their alighting from the car further firing was made upon them. Non hitting of any bullet to the car and non-availability of blood inside the car are factors which curt roots of the prosecution case. According to position of accused during firing as unfolded int eh evidence makes the prosecution case worth unbelievable and hitting of firing to the deceased persons from such position was impossible. According to post-mortem report of Waqar dead body was received in dead house on 10:30 p.m, whereas PW.2 admitted in cross-examination that police papers were received after 4½ hours of arrival of dead body. The delay in conduction of post-mortem examination suggests delay in cooking up false story of F.I.R.
The Investigating Officer conducted investigation dishonestly and very surprisingly the report under Section 173, Cr.P.C. apparently prepared by the SHO on 20.03.2021 and on 29.04.2021 but both were submitted together in prosecution branch on 28.07.2021 which clearly shows ulterior motives and fabrications.”
None of the appellants opted to appear under Section 340 (2), Cr.P.C., however Imran Ahmed (appellant) produced two attested copies of road certificates pertaining to transmission of Challans of the instant case to the office of ADPP Rawalpindi (Exh.DA & Exh.DB), the attested copy of register of receiving of Challans in the office of ADPP (Exh.DC/1-2), attested copy of application for Supardari (Exh.DD/1-4) and maps (Exh.DE/1-5) in his 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 though the F.I.R in this case claimed to have been registered without any delay but in fact it is not so; that indeed the F.I.R was registered much after the acclaimed time and the delay was covered through tampering of record; that there are material contradictions in the statements of the eye-witnesses; that in their Court statements the eye-witnesses did not give the description of weapons with which the appellants were equipped at the relevant time; that even otherwise, the eye-witnesses who furnished the ocular account, failed to prove their presence at the spot, thus their depositions are of chance witnesses, hence cannot be relied upon in the peculiar circumstances of the case; that the recovery of weapons of offence was foisted upon the appellants just to strengthen the prosecution case; that since the prosecution badly failed to substantiate its case against the appellants beyond any reasonable doubt, hence they are liable to be acquitted.
8. On the other hand, learned law officer assisted by learned counsel for the complainant came forward with the submissions that the matter was reported to the police promptly, thus no question of concoction and consultation arises; that the ocular account was furnished by the eye-witnesses whose presence at the spot cannot be doubted; that the eye-witnesses while appearing before the trial Court gave a trustworthy detail of the occurrence which is in line with the medical evidence; that the discrepancies pointed out by the learned defence counsel in the statements of eye-witnesses are minor in nature and can be ignored; that during investigation the appellants were also found guilty; that the appellants have committed the cold-blooded murder of two innocent persons for no good reason, hence they deserve no leniency; that as the prosecution remained successful in proving the guilt of the appellants, hence their appeal is liable to be dismissed.
9. Arguments heard. Record perused.
10. It is discernible from record that the case evolves from a homicide occurrence in which Muhammad Waqar and Muhammad Jahangir were gunned down by a group of assassins comprising upon six persons. As per tale of the incident put forth by the prosecution, the two deceased along with Muhammad Shafique and Muhammad Sharif (PW.7 & PW.8) were on way back to their house while boarding in a Toyota corolla car having registration No. AEB-915 but were ambushed by their adversaries on 02.03.2021 at about 10:00 p.m. The allegation of committing this crime was pointed towards Sadiq Khan, Maroof, Ibrar, Imran and Zeeshan, out of whom the latter cited two persons were saddled with the accusation of inflicting fire-arm injuries to Waqar and Jahangir (deceased). The assassins, statedly came at the spot in a vehicle having Registration No. PW/602 and upon a motorcycle but decamped from the crime scene on feet leaving behind their car.
11. The incident occurred at a place known as Bata Chowk, situated at a distance of 3-kilometers from Police Station Civil Lines, Rawalpindi. The police acquired the details of the occurrence through oral statement (Exh.PN) of Muhammad Shafique (PW.7) recorded by Syed Imran Haider SI (PW.10) in DHQ Hospital Rawalpindi at about 12:30 a.m. on the basis of which formal F.I.R (Exh.PJ) was chalked out at about 12:55 a.m. On one hand prosecution claimed that the promptly lodged F.I.R is a factor which negates all hypotheses of fabrication of facts, absence of PWs from the spot and goes miles in establishing the involvement of appellants in the commission of crime. On the other hand, the defence pleaded that in fact the case was registered with enormous delay but still through the tampering of record by stoppage of F.I.R register and station diary, it was made to look as if promptly registered.
In order to adjudge the veracity of respective claims of both sides, we have perused the record with best possible circumspection. Firstly, it is noticed that the complaint (Exh.PN) was prepared in DHQ Hospital and was dispatched to Police Station Civil Lines for registration of formal F.I.R through Waseem-ul-Haq 7746/C. Inexorably, in the given circumstances, Muhammad Waseem-ul-Haq 7746/C was essentially required to be produced before the learned trial Court but surprisingly neither he was cited as a witness nor was summoned for recording of evidence. In our view, the deposition of afore-mentioned witness was essentially required for proving the prompt registration of F.I.R and besides that the defence/accused had a right to cross-examine him for extracting truth. It will wholly be unjust on our part to blindly accept the claim of prosecution about the time upon which F.I.R was registered while paying no attention to withholding of the most important witness in this regard. While dealing with the issue of non-production of police constable who brought the complaint to the police station for the registration of F.I.R, the Supreme Court of Pakistan in case reported as Minhaj Khan v. The State (2019 SCMR 326) held 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.”
There is yet another factor which sheds doubt upon the claim of prosecution about prompt registration of F.I.R. As per record, though Muhammad Jahangir (deceased) died after about 2-hours of the registration of F.I.R but third page of inquest report (Exh.PG/1) does not contain the brief facts of the case. The inquest report is prepared in accordance with Rule 35 of Chapter 25, Police Rules, 1934 and it comprises upon four pages, out of which page No. 3 is meant for mentioning the brief facts of the case as divulging from F.I.R. This document is essentially required to be placed before the Medical Officer prior to the commencement of the post-mortem examination. The Medical Officer is compulsorily required to sign its pages and such requirements are primarily aimed at ensuring that the F.I.R is registered before the post-mortem examination. In the instant case, the question of vital importance arises that if at all F.I.R had been registered before the autopsy of Muhammad Jahangir then why page-3 of Exh.PG/1 was not containing the tale of incident. The answer of this question is obvious that since the registration of F.I.R was still in process till then thus the story of crime found no place on page-3 of Exh.PG/1. In the case reported as Mst. Yasmeen v. Javed and another (2020 SCMR 505) the Supreme Court of Pakistan while dealing with the case wherein the brief facts in the inquest report were not mentioned held 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 post-mortem 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 post-mortem 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.”
Further reliance on the subject can also be placed upon the case reported as Muhammad Atif Naveed and another v. The State (2024 P.Cr.L.J 1421) wherein a Division Bench of this Court gave the following observation:
“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 post-mortem 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 medical 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 post-mortem 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 aforementioned omissions give vent to an inescapable conclusion that till the time corpse of Arab Khan was subjected to post-mortem, the veil had not been lifted from the identity of the assassins.”
12. During trial the details of unfortunate saga leading to the assassination of two persons was brought on record by Muhammad Shafique and Muhammad Sharif (PW.7 & PW.8). So far as Muhammad Shafique (PW.7) is concerned, he was the brother of Jahangir (deceased) and maternal cousin of Waqar (deceased). Muhammad Sharif (PW.8) was not related to any of the two deceased and as per his claim he was an employee of complainant Muhammad Shafique (PW.7). While examining the evidence of eye-witnesses in a case of homicide the question of foremost importance pertains to their acclaimed presence at the spot. In the instant case, we have straightaway observed that according to Muhammad Shafique (PW.7) he was running a factory in a locality known as Westridge and at the fateful time he along with Muhammad Sharif (PW.8) and the two deceased was on way back to his house situated at Defence Road Rawalpindi. The incident occurred at Bata Chowk, which even as per the stance of Muhammad Shafique (PW.7) does not fall in between his factory and the house. Similarly, Syed Imran Haider SI (PW.10) also admitted this fact in his cross-examination. In the given circumstances, when the presence of Muhammad Shafique (PW.7) at the crime scene was not in accordance with daily pursuit of his life, thus he was legally obliged to put forth some compelling reason for his acclaimed attendance but this burden was not discharged during trial. Similarly, Muhammad Sharif (PW.8) as per his own stance was resident of Dhandli Tehsil Kotli, a place situated at a distance of about 50/60 kilometers from Bata Chowk. He simply claimed to be in the company of Muhammad Shafique (PW.7) and uttered not a single word for his reason of being so, though it was 10:00 p.m. The presence of both the PWs at the spot, in the manner they claimed, make them chance witnesses and their depositions as suspect evidence. As a necessary corollary, the depositions of Muhammad Shafique and Muhammad Sharif (PW.7 & PW.8) are to be discarded from consideration. In case reported as Naveed Asghar and 2 others v. The State (PLD 2021 Supreme Court 600), the Supreme Court of Pakistan 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). Even otherwise, it is observed by us that Muhammad Sharif (PW.8) was a witness in recovery memos (Exh.PP, Exh.PQ & Exh.PR), all of which were signed by him in Urdu. During cross-examination Muhammad Sharif (PW.8) was confronted with his CNIC which was bearing his signatures in English. The witness failed to offer any explanation for the afore-mentioned flaw and indeed the prosecution case is in absolute silence on this point. Without any speck of reluctance, it can be held that at the eventful time Muhammad Sharif (PW.8) was present at the ordinary place of his abode in Tehsil Kotli and the recovery memos were prepared in his absence so as to make him a false witness in the case.
13. We have also come across multiple factors which adversely reflect upon the presence of Muhammad Shafique and Muhammad Sharif (PW.7 & PW.8) at the spot. Firstly, it is noticed that both the PWs in their statements before Court uttered nothing about the description of weapons with which the assailants were armed. If at all, both the eye-witnesses were present at the spot, they should have mentioned the description of weapons like, pistol, revolver, rifle or shot gun. We intend to lay emphasis on the point that an ordinary person is not expected to have knowledge about the caliber of weapons but even a rusty villager can differentiate between the pistol, revolver, gun or rifle etc. The failure to mention the description of the weapons used in the crime was not a simple omission but was intentional, aimed at plugging a lacuna in medical and ocular evidence. According to F.I.R (Exh.PJ), Zeeshan and Imran (appellants) were armed with pistols and as mentioned above during trial both the eye-witnesses omitted to mention the description of weapons even tentatively. In this regard, we have keenly observed that during autopsy Dr.Ahmed Bilal (PW.2) noted two injuries on the corpse of Muhammad Jahangir (deceased) and one out of which on the right side of abdomen measuring 2 cm x 3 cm having multiple pallet entry wounds. Needless to mention here that pallet injuries are caused through the cartridge of .12 bore weapon and none out of the two eye-witnesses in their police statements burdened any of the assailant with the allegation of having used any such weapon. The afore-mentioned flaw was neither addressed at investigation stage nor during trial, thus is a factor which runs contrary to the theory of crime put forth by the prosecution. The conflict between the statements of eye-witnesses in a case of homicide and the medical evidence is always considered a factor favourable to the accused. Indeed, from this shortcoming it can legitimately be concluded that the eye-witnesses were not present at the spot. The 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 Supreme Court of Pakistan while dilating upon inconsistency between medical and 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.”
Secondly, it is noted that though both the PWs claimed about Imran Ahmed (appellant) and Muhammad Ibrar (since acquitted) to have emerged on the scene while boarding a motorcycle but mentioned nothing about its make, model, colour or even the registration number. Such omission is very strange and adversely reflects upon the truth of the deposition of an eye-witness. Thirdly, it is observed that during investigation both the PWs claimed in their police statements that Imran and Zeeshan (appellants) fired at Muhammad Waqar and Jahangir while they were sitting in the vehicle and they received further injuries after alighting from the rear seat of the car. Admittedly, there were no bullet marks on the vehicle in which both the deceased were seated and besides that no blood stains were noticed by the police during spot inspection. Since this is an important aspect, hence an extract from the cross-examination of Khurram Shehzad draftsman (PW.5) is being mentioned hereunder:
“I have not mentioned presence of any bullet mark on outer or inner side of the vehicle and I have also not mentioned presence of blood inside the car.”
The afore-mentioned fact was not even denied by Muhammad Shafique (PW.7) during his cross-examination as is evident from the following portion of his cross-examination:
“There was no blood present inside the car therefore, no blood was collected from the car.”
In order to gain clarity on the afore-mentioned point we carefully scanned the deposition of Syed Imran Haider SI (PW.10) and it unambiguously emerged therefrom that as per prosecution story both the victims of murderous assault namely, Waqar and Jahangir had endured bullet injuries by the time they alighted from the vehicle. Since the foregoing fact is a major flaw in the prosecution case, hence for administering complete justice an excerpt from the cross-examination of Syed Imran Haider SI (PW.10) is also being referred below:
“According to record the inspection notes were prepared on the information and pointation of PWs. According to the inspection note Waqar in injured condition came out of the car and thereafter Zeeshan accused made further firing on him. According to the inspection note Jahangir in injured condition came out of the car and thereafter Imran accused made further firing on him. Neither I collected blood from inside the car nor I showed presence of blood inside the car.”
We have also carefully perused the scaled site plan (Exh.PK) which was prepared on the pointation of eye-witnesses, thus has its own significance. Even at points No. 3 & 4 of the site plan (Exh.PK), it is mentioned that Waqar and Jahangir (deceased) came out of the car in injured condition. During trial the witnesses apparently realized the flaw in their version according to which neither any bullet mark was noticed on the vehicle nor blood stains were taken from the car by the police. In order to address this shortcoming in the prosecution case, the witnesses through variation in their statements deposed before the Court that both the victims suffered fire-arm injuries after alighting from the car. The defence vigilantly confronted both the witnesses with their police statements and they admitted to have mentioned in such statements that both the appellants fired at the vehicle when the victims were sitting inside it. Lastly, it is observed that both the victims statedly were on way back to their house after the acclaimed daily pursuit of life, thus expectedly they should have been in possession of some money, mobile phones and identity documents etc. but nothing as such was recovered from them. This fact was not even denied by Syed Imran Haider SI (PW.10) and even otherwise no recovery memo. of such thing is available on file.
14. From the facts mentioned in the preceding para it is perceivable that the statements of both the eye-witnesses are unbefitting to the prudence. Firstly, if at all the shots were fired on the vehicle then there should have been some bullet marks which were not present on any of its part. Secondly, since as per prosecution case both the deceased received some injuries while sitting in the car there should have been blood stains on the seats, mats or doors. Thirdly, if points No. 3 & 4 of the scaled site plan (Exh.PK) and the statements of both the eye-witnesses are having some truth then the vehicle should have been bullet ridden. The factors mentioned hereinabove are sufficient enough to reflect strongly upon the absence of eye-witnesses at the spot and inch further that indeed the legal heirs were clueless about the actual facts of the case.
15. After having reached the conclusion that the prosecution miserably failed to prove its case, there is no need to dilate upon the defence version of the accused. Such rule is extracted from the cases reported as Woolmington v. Director of Public Prosecutions (1935 Appeal Cases 462), Muhammad Aslam alias Aslam v. The Crown (PLD 1953 FC 115), Muhammad Siddik v. The Crown (PLD 1954 FC 112), Nadeem-Ul-Haq Khan and others v. The State (1985 SCMR 510) and Javaid v. The State (PLD 1994 SC 679). The above principle of appraisal of evidence, which is salutary in nature, is further endorsed by the Supreme Court of Pakistan in the case reported as Muhammad Akram v. The State (2012 SCMR 440) wherein the following observation was given:
“It is cardinal principle of law that in such like cases of two versions, one is to be believed in toto and not in piecemeal. This proposition of law is sell settled by now as reflected in the case of Safdar Ali v. Crown (PLD 1953 FC 93) wherein it has been held that in a criminal case it is duty of the Court to review the entire evidence that has been produced by the prosecution and the defence. If, after examination of the whole evidence the Court is of the opinion that there is reasonable possibility that the defence put forth by the accused might be true, it is clear that such a view reacts on the whole prosecution case. In these circumstances, the accused is entitled to the benefit of doubt not as a matter of grace but as of right because the prosecution has not proved its case beyond reasonable doubt.”
There is another factor which casts some suspicion about the involvement of the appellants in the commission of crime and it pertains to the recovery of their vehicle (P.21) having registration No. PW/602 from the crime scene. Firstly, it is observed by us that no documentary evidence was led by the prosecution to establish nexus between the appellants and the vehicle (P.21). Even otherwise, the appellants came forward with the stance that indeed they were arrested from the house in the same night and vehicle (P.21) was also taken away by the police at the same time. Syed Imran Haider SI (PW.10) admitted during cross-examination that accused Sheraz Ahmed and his father Muhammad Sadiq (since acquitted) joined the investigation and through their first version claimed that the vehicle having registration No. PW/602 was forcibly taken away from the house of the appellants on the eventful night. As this is an important aspect, hence a relevant portion of cross-examination of Syed Imran Haider SI (PW.10) is being reproduced hereunder:
“It was version of accused Sheraz Ahmad that his father Muhammad Sadiq accused, his mother and brothers namely Zeeshan, Imran and Ibrar were living in Noor street Adyala Road. It was also his version that on 03.03.2021 at about 03:00 a.m. I along with other police officials and Muhammad Shafique complainant raided the aforementioned house and forcibly arrested Sadiq Khan and Imran and took him to Police Station Civil Lines. It was also his version that their vehicle bearing No. VXR-PW602 was also forcibly taken away by me from the house whereas Zeeshan and Ibrar succeeded to escape and that later on came to know that Waqar and Jahangir were done to death during the preceding night of 02.03.2021. It was also his version that I kept Muhammad Sadiq and Imran accused in illegal confinement for seven days and shown their arrest in league with complainant party on 10.03.2021.”
Furthermore, in case reported as Liaqat Ali and another v. The State (1998 P.Cr.L.J 216) the first version of the accused was considered as admissible with the following observation:
“I, therefore, hold that the first version of the accused of whatever nature can be brought on record through cross-examination by putting the same to the Investigating Officer. It would certainly be, a safer course in dispensation of complete justice in an adversary system.”
16. The raison d’etre behind the registration of F.I.R was that four months prior to the incident, Faraz son of accused Sadiq committed suicide in his own house and for that Muhammad Waqar (deceased) was allegedly held responsible by the accused-side. According to the F.I.R (Exh.PJ), the accused-party used to talk with the people that they would kill Muhammad Waqar (deceased). In support of the motive Muhammad Shafique (PW.7) and Muhammad Sharif (PW.8) deposed before the trial Court, however, the former during cross-examination admitted that Sadiq (acquitted accused) did not file any application to the police for the registration of F.I.R. against Waqar (deceased) qua the death of his son Faraz. The prosecution also produced Muhammad Ikhlaq (PW.9) in support of motive and he while appearing in the dock deposed that Waqar was responsible for the death of son of Sadiq. We have perused the record with due care but remained unable to find out any clue behind the demise of afore-said Faraz and indeed no documentary evidence about his suicide was tendered by the prosecution. In these circumstances, the motive set out in the F.I.R seems nothing but a jumbled-up story just to strengthen the prosecution case.
17. Insofar as the recovery of .30 bore pistols (P.15 & P.17) affected from the appellants and the positive report of PFSA (Exh.PAA) about their matching with crime empties secured from the spot are concerned, the same at the most can be used in corroboration of ocular account which otherwise has been disbelieved. Even otherwise, if the substantive evidence is found to be suffering from multiple doubts, there is no need to seek corroboration from other circumstances. Reference in this context may be made to the case reported as Abdul Qadeem Shah vs. Abdul Wadood and another (2023 P.Cr.L.J 143) wherein a Division Bench of Balochistan High Court held as under:
“So far FSL report is concerned, the FSL report is corroborative evidence. The conviction cannot be awarded only on the basis of corroborative evidence without substantive piece of evidence. It is settled principle of law that one tainted
piece of evidence cannot corroborate another tainted piece of evidence.”
18. In the light of what has been discussed above, the prosecution has badly failed in proving its case against the appellants beyond scintilla of doubt. Resultantly, we accept Criminal Appeal No. 851 of 2022 filed by Imran Ahmed & Zeeshan Ahmed (appellants), set aside their conviction and sentence recorded by the learned trial Court and acquit them of the charge by extending benefit of doubt. Imran Ahmed & Zeeshan Ahmed (appellants) shall be released forthwith if not required to be detained in any other criminal case. Resultantly, Murder Reference No. 65 of 2022 is answered in the NEGATIVE and death sentence awarded to Imran Ahmed & Zeeshan Ahmed (appellants/convicts) is NOT CONFIRMED.
19. As regards Criminal Appeal No. 960 of 2022 against the acquittal of Muhammad Sadiq, Sheraz Ahmed, Ibrar Ahmed and Maroof Akhtar (Respondents No. 1 to 4), it is noticed that they are related with the principal accused, namely Zeeshan Ahmed and Imran Ahmed as father, paternal uncle and brothers respectively. We have further observed that none out of them was armed with any weapon at the relevant time nor they caused even a scratch to any of the deceased. Even otherwise, for the reasons mentioned above afore-said principal accused have been acquitted of the charges by extending benefit of doubt in their favour. Therefore, the instant appeal against acquittal of Respondents No. 1 to 4 has no merits and is dismissed.
(A.A.K.) Appeal dismissed
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