2025 PLP 899 (MLD)

Sardar Akbar Ali, J.

Muhammad Amjad (appellant) along with his co-accused namely Muhammad Usman was tried by the learned Addl. Sessions Judge, Bhalwal in case FIR No.104 dated 29.02.2020, offence under Sections 302 and 34, P.P.C registered at Police Station Bhera District Sargodha for the murder of Muhammad Farooq (deceased) father of complainant. Vide judgment dated 18.11.2021 passed by the learned trial court, the appellant has been convicted under Section 302(b), P.P.C and sentenced to death, with a further direction to pay Rs. 10,00,000/- as compensation under Section 544-A, Cr.P.C. to the legal heirs of deceased. Through the same judgment, the above named co-accused of the appellant was acquitted of the charge by extending him benefit of doubt. Assailing the above conviction and sentence, the appellant has filed Crl. Appeal No.73258 of 2021 whereas the learned trial court has sent Murder Reference No.204 of 2021 for confirmation or otherwise of appellant's sentence of death, as required under Section 374 of the Code of Criminal Procedure. The complainant has also preferred Crl. Appeal No.77038 of 2021 against acquittal of co-accused of the appellant. Since all these matters have arisen out of the same judgment, therefore, are being decided together through this single judgment.

2. Prosecution story, as set out in the FIR (Ex.PB/1) registered on the written application (Ex.PD) of Muhammad Zahid, complainant (PW.8) is that on 29.02.2020 at about 08:30 p.m. he along with his father Muhammad Farooq was present in front of his house. Amjad Dogar (appellant) armed with repeater .12 bore and Usman Dogar armed with pistol .30 bore along with an unknown co-accused armed with firearm weapons came there. Amjad Dogar raised lalkara to teach a lesson to the complainant party and made a fire with his repeater .12 bore at the father of the complainant, with intention to kill him, which landed on his back, who fell down. Having heard report of firing and voice of quarrel, Muhammad Qadeer and Zulfiqar PWs attracted to the spot while witnessing the occurrence and on seeing them, all the three accused persons fled away toward north by waving their weapons and making aerial firing. The motive behind the occurrence as alleged in the FIR was that a few times earlier to the occurrence, hot words were exchanged between the complainant and Amjad (appellant) near Chak Wala Darwaza and due to that revenge, the accused persons committed the instant occurrence. The father of the complainant succumbed to the injury at DHQ Hospital, Sargodha on 02.03.2020 and Section 324, P.P.C was substituted with Section 302, P.P.C.

3. We have heard learned counsel for the parties as well as the learned Law Officer for the State at a considerable length and have also gone through the record very minutely.

4. The ocular account in this case has been furnished before the learned trial court by Zahid, complainant (PW.8) and Muhammad Zulfiqar (PW.9), who were closely related to the deceased being his son and brother respectively and were interested witnesses. It was case of the complainant before the learned trial court during his cross-examination that his father received the fire shot when he was present in the door of his cattle-shed/haveli while the stance of Muhammad Zulfiqar (PW.9) was that there was cattle-shed/haveli of the deceased adjacent to the place of occurrence and his brother (deceased) received the fire shot when he was present at raised plate farm (thara) whereas according to the rough site plan (Ex.PP), prepared by Muhammad Yousaf, S.I/I.O. (PW.7) on the pointing out of the PWs, the deceased received fire shot at point No.1, from where blood stained earth was also collected by the I.O. which is an abundant house of one Muhammad Akram. Zahid (PW-8) during cross-examination deposed that "the deceased in injured condition was shifted to the police station on a motorcycle. My clothes were stained with the blood of deceased while shifting in the police station" but admittedly no such blood-stained clothes of the said eye-witness had been secured or produced by Muhammad Yousaf, Sub Inspector (PW-7). In these circumstances, it is concluded that PW-8 produced by the prosecution was not reliable and in all likelihood he had not witnessed the murder in issue. Reliance is placed on case laws titled as "Mst. Mir Zalai v. Ghazi Khan and others" (2020 SCMR 319) and "Rafaqat Ali alias Foji and another v. The State and others" (2024 SCMR 1579). Moreover, it was a night time occurrence and no source of light has been mentioned in the FIR, so there are chances of mistaken identity of the accused. The motive behind the occurrence was that a few times earlier to the occurrence, hot words were exchanged between the complainant and the appellant at Chak Wala Darwaza and due to that revenge, the appellant committed murder of his father. The appellant mounted assault, as per prosecution's own case to settle score with Zahid, complainant (PW-8) for allegedly having exchange of hot words with him. The site plan positions would show that complainant (PW-8), the other PWs and the deceased were at the mercy of the appellant but being the prime target even no threat was extended to complainant (PW-8). As per prosecution's own case the appellant and Zahid (PW-8) were face to face at the time of occurrence and said witness was well within the view and reach of appellant but astonishingly the appellant let the said witness go unhurt who was the prime target of assault. No other inference could be drawn from such circumstances other than that either said witness was not present at the scene or the occurrence took place in a backdrop other than narrated in the FIR. If any such altercation took place between the appellant and Zahid (PW-8) then the prime target for the appellant should be to kill the said witness. Reliance is placed on case law titled as "Mst. Rukhsana Begum and others v. Sajjad and others" (2017 SCMR 596), "Waris Ali and 5 others v. The State" (2017 SCMR 1572) and "Tariq Mehmood v. The State and others" (2019 SCMR 1170). As per complainant, the place of motive incident was a very busy place but as conceded by him, he has not mentioned the name of any eye-witness regarding the motive incident. Even no detail of motive as to on what issue the hot words were exchanged between them, was given by the complainant. The I.O. (PW.7) also narrated during cross-examination that no witness joined the investigation before him in support of the motive, narrated by the complainant in the FIR. We have also noted that no independent witness qua motive was brought in the witness box at the time of trial. Therefore, in our view, the prosecution has not been able to substantiate alleged motive against the appellant. So far as the alleged recovery of .12 bore repeater gun (P.5) at the instance of appellant which was taken into possession vide recovery memo. (Ex.PF) is concerned, the same is inconsequential for the reason that the prosecution has failed to associate any independent witness of the locality as is evident from the recovery memo. (Ex.PF), which bears the signatures of the police officials as recovery witnesses. Thus, the mandatory provisions of Section 103, Cr.P.C. had flagrantly been violated in that regard. Reliance may be placed on case law titled as "Muhammad Ismail and others v. The State" (2017 SCMR 898). Considering overall circumstances of the case, we are of the view that the eye-witnesses were not present on the spot at relevant time and had not witnessed the occurrence.

5. The medical evidence produced by the prosecution was not of much avail to the prosecution because the murder in issue had remained unwitnessed and, thus, the medical evidence could not point an accusing finger towards any of the culprit implicated in this case. Even otherwise, medical evidence is just a corroborative piece of evidence and could only give details about the locale, dimension, kind of weapon used, the duration between injury and medical examination or death and autopsy, etc, but never identify the real assailant. In the case "Munawar Ali alias Munawar Hussain v. The State (PLD 1993 SC 251) the Hon'ble Supreme Court of Pakistan held that:- "Medical evidence is corroboration to show that injuries were caused in a particular manner with particular weapon and even it can supply corroboration to the fact as to how many assailants there were and whether number of injuries is commensurate with number of assailants or not, but medical evidence can never be used as corroboration qua accused to show that particular accused has caused these injuries can never name the accused, that is, from the injuries alone it cannot be said who had inflicted those injuries." The cases "Machia and others v. State" (PLD 1976 SC 695) and "Muhammad Jahangir and another v. The State and others" (2024 SCMR 1741) are also to the same effect.

6. So far as the defence plea taken by the appellant in his statement under Section 342, Code of Criminal Procedure is concerned, since the prosecution evidence is doubtful in nature, therefore, there is no need to discuss the same which is exculpatory in nature.

7. We have considered all the pros and cons of this case and have come to this irresistible conclusion that the prosecution could not prove its case against the appellant beyond any shadow of doubt. It is, by now well established principle of law that it is the prosecution, which has to prove its case against the accused by standing on its own legs and it cannot take any benefit from the weaknesses of the case of the defence. In the instant case, the prosecution remained failed to discharge its responsibility of proving the case against the appellant. It is also well established that if there is a single circumstance which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances which have created serious doubt about the prosecution story. In this regard, reliance may be place on the case law reported as "Muhammad Akram v. The State" (2009 SCMR 230).

8. For the foregoing reasons, the appeal in hand filed by Muhammad Amjad (appellant) is allowed, conviction and sentence awarded to the appellant vide judgment dated 18.11.2021 passed by the learned trial court are set aside and he is acquitted of the charge levelled against him while extending him benefit of doubt. The appellant is in jail. He shall be released forthwith if not required to be detained in any other case.

9. Murder Reference No.204 of 2021 is answered in the NEGATIVE and the sentence of death awarded to Muhammad Amjad (convict) is NOT CONFIRMED.

10. In view of above discussion, Crl. Appeal No.77038 of 2021 filed by the complainant against acquittal of Muhammad Usman, respondent No.1, having no merits is dismissed. JK/M-38/L Appeal allowed.