2020 PLP 488 (YLR)

FAROOQ HAIDER, J.

Through this single consolidated judgment Criminal Appeal No.49/2017 filed by Naseer Ahmad (appellant) against judgment dated 20.01.2017 passed by learned Additional Sessions Judge, Chishtian, whereby he has been convicted and sentenced under section 302(b), P.P.C. to death for committing qatl-e-amd of Muhammad Sarfraz with payment of compensation Rs.2,00,000/- to the legal heirs of deceased under Section 544-A, Cr.P.C and in default thereof to further undergo six months S.I and Murder Reference No.4/2017 sent by learned trial Court under section 374, Cr.P.C. for confirmation of death sentence awarded to the appellant through the aforementioned impugned judgment passed in private complaint under section 302, P.P.C., are being decided together because both these matters have arisen out of one and same judgment.

2. Brief facts, as per written application (Ex.DA) submitted by Waqar Ali complainant/PW-1 to Muhammad Ashraf SI/CW-4 are that he is resident of Chak No.203 Murad and labourer by profession; he has three brothers namely Muhammad Sarfraz, Shahzad Ali and Afzaal Ali, out of them Muhammad Sarfraz is married and resides at Chak No.207 Murad Izafi Basti, who is also labourer by profession; on 06.09.2013, complainant visited the house of Muhammad Sarfraz who told him that 3/4 days ago Naseer Ahmad (appellant) quarrelled with him and gave a threat of dire consequence to him; on the same day i.e. on 06.09.2013 at about 11:30 a.m., Muhammad Sarfraz (mentioned above) was going to sell corn on cart and when he reached in front of the shop of Noor Muhammad Joiya, Naseer Ahmad accused arrived there on his 'Muniyari Cart'. ( ) and raised lalkara to Muhammad Sarfraz that today he will not be spared; on hearing hue and cry, complainant, Muhammad Tariq, Muhammad Irshad and other people of the vicinity gathered there and saw that Naseer Ahmad picked knife ( ) from his Muniyari Cart and gave a blow of the same to Muhammad Sarfraz at left side of his chest, as a result of which, he fell down; the complainant party put Muhammad Sarfraz on a cot, boarded in a van and proceeded for shifting him to Daharanwala Hospital but he succumbed to the injuries near Chak No.182/Murad. On the basis of above said application (Ex.DA), case vide FIR No.255/2013 dated 06.09.2013 under Section 302 PPC (Ex.CW-4/1) was registered at Police Station Daharanwala, District Bahawalnagar. After registration of the case and submission of report under Section 173, Cr.P.C. in the same, complainant while posing dissatisfaction with respect to non-mentioning of injury at the neck of Muhammad Sarfraz and mentioning fact of "carrying the injured in a van to hospital and his death on the way" in application Ex.DA, filed private complaint (Ex.PA) before the learned Judicial Magistrate which was entrusted to learned Additional Sessions Judge, Chishtian, in which the appellant was summoned and charge sheeted, to which, he pleaded not guilty and claimed trial. Thereafter complainant himself appeared as PW-1, produced Muhammad Tariq as PW-2 and also tendered reports of experts, then Court also examined six Court Witnesses. Thereafter, statement of the accused was recorded under Section 342, Cr.P.C. in which he refuted the allegations levelled against him. However, he neither opted to appear as his own witness under section 340(2), Cr.P.C. nor produced any evidence in his defence.

3. The learned trial court after conclusion of the trial convicted and sentenced the appellant as mentioned above, vide impugned judgment dated 20.01.2017.

4. Learned counsel for the appellant submitted that impugned conviction recorded and sentence awarded to the appellant through impugned judgment are against the 'law and facts' and result of non-reading/misreading of evidence. Learned counsel for the appellants finally prayed for acquittal of the appellant.

5. Conversely, learned Deputy Prosecutor General assisted by learned counsel for the complainant has supported the impugned judgment and prayed for dismissal of the appeal.

6. Arguments heard. Record perused.

7. It is case of prosecution that occurrence took place at 11:30 a.m. on 06.09.2013, case was got registered at 12:30 p.m. on the same day vide FIR (Ex.CW-4/A) on the basis of application (Ex.DA) submitted by Waqar Ali complainant (PW-1) in the police station and post-mortem examination over dead body of the deceased was also conducted at 04:45 p.m. on the same day; however, close scrutiny of the record reveals that complainant himself categorically stated in the Court while appearing as PW-1 that occurrence took place at 09:30 a.m. on 06.09.2013, relevant portion of his examination-in-chief (available at page 38 of the paper book) is being reproduced:-- "On 06.09.2013 at 09.30 a.m. my brother Muhammad Sarfraz was going to sell corn on donkey cart and when he reached in front of shop of Haji Noor Muhammad Joiya. Accused Naseer Ahmad brought his "muniyari" cart from front side. Accused raised a lalkara to my brother Muhammad Sarfraz that you were previously saved and you will not be spared today. On hearing hue and cry, I along with Tariq and Irshad PWs along with other residence of Chak No.207/Murad Izafi Basti arrived at the spot and in our view accused Naseer Ahmad inflicted blows of churri which hit on the left side of chest and left side of the neck of Muhammad Sarfraz who fell down on the ground" It is also relevant to mention here that dead body was received in the hospital at 04:00 p.m., police papers were received half hour after receipt of dead body and thereafter autopsy was conducted at 04:45 p.m. on 06.09.2013, relevant portion of statement of Dr. Azhar Farooq (CW-1) is being reproduced: - "Death 11.30 a.m. on 06.09.2013 as in police papers, received body in the dead house at 04:00 p.m. after receiving police papers I conducted post mortem at 04:45 p.m. on 06.09.2013" "Police papers were handed over to me by the police after 30 minutes of receiving the dead body in dead house and after that I conducted the postmortem examination" Therefore, in the above mentioned state of affairs, neither case can be treated as promptly registered nor postmortem examination can be termed as promptly conducted; by now law is well settled that such circumstances suggest that neither complainant nor other cited eye-witnesses were present at the relevant time, at the place of occurrence and this time had been consumed by the prosecution in cooking up a story for registration of case and in procuring and planting eye-witnesses; in this regard, case of "Haroon Shafique v. The State and others" (2018 SCMR 2118), "Mian Sohail Ahmed and others v. The State and others" (2019 SCMR 956) and "Muhammad Rafique alias Feeqa v. The State" (2019 SCMR 1068) can be safely referred. While making inconsistent statements regarding time of occurrence, prosecution itself on the one hand has made it dubious and on the other hand could not prove the same. Similarly, Waqar Ali complainant (PW-1) in application for registration of case (Ex.DA) mentioned that Muhammad Sarfraz in injured condition was being carried to hospital on a van but he succumbed to the injuries on the way i.e. near Chak No.182/Murad Morr, however, while appearing as PW-1 in the Court he stated that Muhammad Sarfraz died at the spot, hence, prosecution while making inconsistent statements in this regard also not only made it doubtful rather even could not establish exact place of death of the deceased. Perusal of FIR (Ex.CW-4/A) and particularly its portion containing proceedings of police ( ) clearly reveals that complainant produced application for registration of case Ex.DA in the police station to Muhammad Ashraf SI (CW-4) who recorded FIR on the basis of said application and also handed over copy of FIR to complainant in the police station after obtaining his signature, relevant portion is being reproduced: - Muhammad Ashraf, S.I. (CW-4) also clearly stated before the Court as under:-- "Stated that on 06.09.2013, I was posted as I.O. at Police Station Dahranwala Chishtian. On the same day, complainant of this case submitted written application Exh.DA on the basis of which I chalked out formal FIR No.255/13 under section 302, P.P.C. Exh.CW-4/A without any deletion or addition" but complainant (PW-1) made absolutely inconsistent/contrary statement in the Court and clearly stated that police came at the spot and recorded his statement there, relevant portion of his statement is being reproduced: - "We informed the police about the occurrence on which Ashraf SI reached at the place of occurrence. Said Ashraf SI recorded written application on my statement and obtained my signatures on written application" Hence, prosecution could not establish the exact place, mode of receiving and recording of first information regarding occurrence; it goes without saying that in aforementioned circumstances, complainant himself has made registration of case as dubious. Ocular account comprises upon Waqar Ali complainant (PW-1), Muhammad Tariq (PW-2) and Muhammad Irshad (given up cited eye-witness); they are neither resident of place of occurrence nor having any shop or business there rather Waqar Ali complainant (PW-1) is resident of Chak No.203/Murad, which is at a distance of 3/4 kilo meters from Chak No.207/Murad i.e. village of occurrence, residence of Muhammad Tariq (PW-2) is at a distance of four acres from the spot whereas Muhammad Irshad is resident of 5/6 acres from the spot, house of deceased is also near the house of Muhammad Tariq (PW-2); perusal of site plan (Ex.CW-6/A) and site plan (Ex.CW-4/B) reveals that houses of the cited eye-witnesses and deceased are not available near to the place of occurrence, hence they are chance witnesses; as far as claim of the complainant that he along with other cited eye-witnesses came at the place of occurrence after hearing hue and cry is concerned, same is neither plausible nor probable; in this regard, guidance has been sought from the case of "Nazir Ahmad v. The State" (2018 SCMR 787), relevant portion is being reproduced :-- "Both the said eye-witnesses were also chance witnesses and they had claimed to have been attracted to the place of occurrence upon hue and cry of the deceased. As already mentioned above, there was no house or shop of any person situated anywhere close to the house of occurrence and, thus, it was not readily believable that the above mentioned eye-witnesses would be attracted to the place of occurrence upon hue and cry of the deceased." Complainant and cited eye-witness, even otherwise, could not establish any valid reason regarding their presence at the relevant time, at the place of occurrence; their testimony cannot be accepted without strong corroboration but same is absolutely missing/ lacking in this case. It goes without saying that complainant (PW-1) is real brother of deceased whereas Muhammad Tariq (PW-2) is brother in law of the deceased and Muhammad Irshad (given up cited eye-witness) is brother in law of Muhammad Tariq PW, they were three in number whereas accused was alone and allegedly equipped with churri and not equipped with any sophisticated firearm weapon but complainant and eye-witnesses did not intervene for rescue of the deceased or apprehending the assailant but remained at the place of occurrence as silent spectator; it is own version of the complainant and Muhammad Tariq (PW-2) that Muhammad Sarfraz died at the place of occurrence, they have not deposed that they tried to shift him for providing any medical aid; doctor says that Muhammad Sarfraz expired within half hour after sustaining injury due to haemorrhage and shock; therefore, conduct of complainant (PW-1) and Muhammad Tariq (PW-2) reflects that they were not present at the time of occurrence, at the spot; in this regard, guidance has been sought from the dictum laid down by the august Supreme Court of Pakistan in the cases of "Rehmat Ullah v. Muhammad Iqbal and others" (2006 SCMR 1517), "Allah Bachaya and another v. The State" (PLD 2008 SC 349) and "Zafar v. The State and others" (2018 SCMR 326). Complainant even otherwise made dishonest improvements at belated stage, after submission of the challan, through private complaint Ex.PA particularly qua number of injuries on the body of the deceased for bringing ocular account in line of medical evidence, place of death of the deceased and mode/place of providing first information to police about the occurrence and has also introduced same dishonest improvements while appearing as PW-1 before the Court during trial of the case. Similarly Muhammad Triq (PW-2) has also introduced same dishonest improvements; relevant portion of his statement is being reproduced: - "I made the same statement before the police which I made before the court on 01.12.16 but the police did not record my statement correctly. I made the same statement on 15.01.2014 and on 01.12.2016 before the court. I did not record in my cursory statement dated 15.01.14 that complainant had got recorded in written application to Ashraf SI that 3/4 days ago a quarrel took place between deceased and accused but Ashraf SI did not record the same in written application. I had also not got recorded in my cursory statement dated 15.01.14 that complainant had got recorded in written application to Ashraf SI about injury on the left side of the neck of the deceased but Ashraf SI did not mention the same in said application. It is incorrect to suggest that I made dishonest addition and improvements in my statement" It is well settled principle of law that witness who made inconsistent statements cannot be considered as truthful witness; in this regard case of "Muhammad Nadeem alias Banka v. The State" (2011 SCMR 1517) can be safely referred; similarly witness who made dishonest improvements also cannot be relied and in this regard, guidance has been sought from the dictum laid down by the august Supreme Court of Pakistan in the case of "Muhammad Mansha v. The State" (2018 SCMR 772) and "Muhammad Arif v. The State" (2019 SCMR 631). It goes without saying that renunciation by complainant of his own application (EX.DA) filed by him for registration of case and crime report i.e. FIR (EX.CW-4/A), through complaint (EX.PA) goes long way to tremor the very basis of case. In application Ex.DA and FIR Ex.CW-4/A, only one injury on the chest of deceased was mentioned but during autopsy two injuries were found, therefore, ocular account was contradicted qua number of injuries by medical evidence. In view of what has been discussed above, ocular account is neither trustworthy nor confidence inspiring, hence same is not reliable. Medical evidence is mere supportive/ confirmatory type of evidence; it can tell about locale, nature, magnitude of injury and kind of weapon used for causing injury but it cannot tell about identity of the assailant who caused the injury; therefore, same is also of no help to the prosecution in peculiar facts and circumstances of the case. As far as recovery of churri is concerned, it is case of prosecution that it was got recovered on 19.09.2013 through EX.PD but said fact has been clearly negated by Saif Ullah 1000/HC and relevant portion from his statement is being reproduced: - "I had not got recorded in my statement under section 161, Cr.P.C dated 21.05.2015 that on 06.09.2013 I.O. Muhammad Ashraf SI handed over to me two sealed parcels one said to contain blood stained earth and other sealed parcel said to contain weapon of offence i.e. churri. Confronted with Exh.DB where it is so recorded" Even otherwise, occurrence took place on 06.09.2013 and churri was dispatched to Punjab Forensic Science Agency, Lahore on 11.10.2013 meaning thereby after about thirty five days of the occurrence. It is well settled principle of medical jurisprudence that after the period of three weeks blood disintegrates; in this regard guidance has been sought from the esteemed judgment delivered by august Supreme Court of Pakistan in case reported as "Faisal Mehmood v. The State" (2016 SCMR 2138), therefore, report of PFSA (Ex.PE) is inconsequential and recovery of churri is of no help to the case of prosecution. As far as motive is concerned, suffice to say that no detail about exact time, reason and witnesses regarding occurrence of motive has been produced by the prosecution; in this regard, PW-1 deposed as under: - "I also did not mention the motive in the written application" "I did not mention the detail of the quarrel between the deceased and accused present in the court in my written application for registration of case and in private complaint" Muhammad Ashraf SI (CW-4) deposed as under:- "Complainant and PWs did not mention the detail of quarrel which was referred in FIR. There is no mention of any quarrel in the statements of the complainant and PWs recorded under section 161, Cr.P.C." So motive is not proved.

8. Nutshell of the above discussion is that prosecution has been failed to prove its case against the appellant, therefore, there is no need to discuss defence version.

9. In view of, what has been discussed above, Crl. Appeal No.49/2017, filed by Naseer Ahmad is allowed; impugned conviction recorded and sentence awarded to the appellant through impugned judgment dated 20.01.2017 is hereby set aside. Appellant is acquitted of the charge, he be released from jail forthwith, if not required in any other case. Murder Reference No.4/2017 is answered in negative and death sentence awarded to Naseer Ahmad is not confirmed. JK/N-3/L Appeal allowed.