2025 PLP 1085 (MLD)

Farooq Haider, J.

This single judgment will dispose of Crl. Appeal No.81582/2021 filed by Muhammad Nasir (appellant) against his "conviction and sentence" and Murder Reference No.01/2022 sent by trial court, as both the matters have arisen out of one and the same judgment dated: 17.12.2021 passed by learned Addl. Sessions Judge, Jhang/trial court.

2. Muhammad Nasir (appellant) along with Muhammad Shahbaz (co-accused) was tried in case arising out of FIR No.88/2021 dated: 12.02.2021 registered under Sections 302, 34, P.P.C. at Police Station: Mochiwala, District Jhang and after conclusion of the trial, while acquitting aforementioned co-accused namely Muhammad Shahbaz vide impugned judgment dated: 17.12.2021, trial court has convicted and sentenced the appellant as under: - Conviction Sentence Under Section: 302(b), P.P.C. "Death" (for committing Qatl-e-Amd of Allah Rakhi) with payment of compensation Rs.5,00,000/-to the legal heirs of the deceased under Section 544-A, Cr.P.C. recoverable as arrears of land revenue.

3. Brief facts, as per application (Ex.PJ) moved by Haleema Bibi (complainant/PW-8) to Faqeer Muhammad, S.I. of Police Station: Mochiwala, District Jhang (PW-10) on 12.02.2021 for registration of the case are that she is poor and helpless woman; her marriage was solemnized with Muhammad Siddique son of Mehr about 30/32 years ago; two sons and two daughters were born out of the wedlock: Muhammad Siddique divorced the complainant about 9/10 years ago, whereupon she contracted marriage with Lashkar son of Pahlwan, who also divorced the complainant, upon which she (complainant) contracted marriage with Waseem son of Sharif, caste Lohar; Allah Rakhi daughter of Muhammad Siddique had grownup while residing with the complainant, who was married with Shaukat Rajoka resident of Rehmoana about 6/7 years ago; one daughter was born out of their wedlock, thereafter Shaukat divorced daughter of the complainant namely Allah Rakhi, upon which, complainant got contracted marriage of her daughter Allah Rakhi with Nasir (accused) of her biradari about 4/5 years ago, who were blessed with one son and one daughter; Allah Rakhi (deceased) being deserted for about six months was residing with the complainant along with her children in Chak No.346/GB, Thesil Gojra, District Toba Tek Singh; in the meanwhile, husband of the complainant namely Waseem son of Sharif died; complainant along with her daughter Allah Rakhi and Manzoor had come to Gojra More Adda for purchasing commodities on the eve of Khatam of 7th of her late husband on loader Rickshaw of their relative namely Muhammad Rashid; at about 11:40 a.m. after taking grocery when they crossed Total Petrol Pump on loader Rickshaw for going back, aforesaid accused persons came from behind on motorcycle and asked to stop the Rickshaw on a side; when Muhammad Rashid stopped the Rickshaw, Nasir (accused) armed with pistol, after raising lalkara that he would teach a lesson to Allah Rakhi for her living in "Maika" being annoyed, asked them for alighting from the Rickshaw, upon which complainant and Manzoor de-boarded from the Rickshaw whereas Allah Rakhi got frightened there; Irfan (accused) whose name was later on rectified as Muhammad Shahbaz through case diary, kept the motorcycle on start whereas Nasir (accused) resorted to straight firing with pistol at Allah Rakhi and fire shots hit below left ear, on backside of neck, shin of left leg and below left armpit of Allah Rakhi who succumbed to the injures at the spot while the accused persons along with firearm fled away towards Chamranwali on red coloured motorcycle 70/CC. Motive behind the occurrence was that accused was trying to convince/agree Allah Rakhi but she refused to reconcile, due to which grudge, Nasir (accused) committed murder of Allah Rakhi by resorting to firing. On the basis of application (Ex.PJ), FIR (Ex.PG) was chalked out by Safdar Khan, 1710/MHC (PW-4).

4. After completion of investigation, challan report under Section: 173 Cr.P.C. was submitted in the Court against the appellant by placing his name in column No.3 of the same; appellant was formally charge sheeted, however, he pleaded not guilty and claimed trial whereupon prosecution evidence was summoned; after recording of prosecution evidence, appellant was examined under Section: 342 Cr.P.C. but he refuted the allegations levelled against him; he opted not to appear as his own witness under Section: 340(2) Cr.P.C., however, produced some documents in his defence; then trial court after hearing learned counsel for the parties, passed the impugned judgment, whereby appellant was convicted and sentenced as mentioned above.

5. Learned counsel for the appellant has submitted that conviction recorded against and sentence awarded to the appellant through impugned judgment are against the 'law and facts' and result of non-reading/misreading of evidence, therefore, same are not sustainable in the eyes of law. Learned counsel for the appellant finally prayed for acquittal of the appellant.

6. Conversely, learned Deputy Prosecutor General and learned counsel for the complainant have supported the impugned judgment and prayed for dismissal of the appeal.

7. Arguments heard. Record perused.

8. It has been noticed that as per case of prosecution, occurrence took place at 11:40 a.m. on 12.02.2021 whereas machinery of law was brought into motion by Haleema Bibi (complainant/PW-8) by way of moving application for registration of the case (Ex.PJ) to Faqeer Muhammad, S.I. (PW-10) and FIR (Ex.PG) was recorded at Police Station: Mochiwala, District Jhang at 01:00 p.m., however, time of receipt of aforementioned application by Faqeer Muhammad, S.I. has not been mentioned anywhere in the record rather relevant place is blank and relevant portion from the same is hereby scanned below:- Place of occurrence is within the area of Gojra More Adda, Chak No.214/JB at a distance of three miles from the Police Station as per column No.4 of the FIR. It is relevant to mention here that dead body of the deceased was received at 07:20 p.m. on 12.02.2021 in the hospital whereas documents for postmortem examination from the police were received at 07:20 p.m. and postmortem examination over dead body of Allah Rakhi (deceased of the case) was conducted at 07:30 p.m. and relevant portion of the statement of Dr. Sonia Iqbal (PW-2) is hereby reproduced as under:- "Time of death stated by police was on 12.2.2021 at 11:40 A.M and receiving dead body in death house on 12.2.2021 at 07:20 P.M. I received complete documents from police at 07:20 PM and started autopsy at 07:30 PM on the same day." hence as per case of prosecution, postmortem examination has been conducted after about eight hours i.e. seven hours and fifty minutes of the occurrence and after about six and half hours of the registration of the case. Perusal of the record reveals to the naked eye that reason of delay in postmortem examination was that documents for conducting autopsy were received at 07:20 p.m. which clearly depicts that time has been consumed for procuring, inducing and engaging the witnesses, tailoring story for the case of prosecution and then registering the case in its present form after much delay, however, ante-time has been mentioned in the record, which further reflects that none of the cited witnesses including the complainant was present at the place of occurrence and in above scenario, First Information Report (crime report), which is cornerstone of the case of the prosecution, cannot be termed as promptly recorded and such sort of FIR cannot provide any support to the case of prosecution and superstructure i.e. case of prosecution raised on the basis of such sort of FIR is bound to fall and in this regard, cases of "Haroon Shafique v. The State and others" (2018 SCMR 2118), "Muhammad Rafique alias Feeqa v. The State" (2019 SCMR 1068), "Sufyan Nawaz and another v. The State and others" (2020 SCMR 192) and "Muhammad Adnan and another v. The State and others" (2021 SCMR 16) can be safely referred. It is noteworthy here that in this case, ocular account produced by the prosecution comprises of statements of Haleema Bibi (complainant/PW-8) and Manzoor (PW-9); admittedly, they both are not residents of the place of occurrence i.e. Gojra More Adda rather Haleema Bibi (complainant/PW-8) is resident of Chak No.346/GB, which is situated at a considerable distance from the place of occurrence; in this regard, relevant portion of her statement is hereby reproduced as follows:- "Distance between Chak No. 356 to Gojra is about 10 to 15 miles. Similarly Gojra More from Chak No.356 is at the distance of 10-KM. Manzoor is resident of Chak No. 169/JB of District Jhang. Chak No. 169/JB is known as Chak of Garwah. Gojra More is at the distance of 4 to 5-KM from Garwah Chak." Similarly, Manzoor (PW-9) stated that he is resident of Chak No.169 commonly known as Chak of Girwah, which is situated at a distance of 4/5 Kilometers from Gojra More and relevant portion of the statement of PW-9 in this regard is hereby reproduced as follows:- "I am resident of Chak No. 169, Chak commonly known as Chak of Girwah. Halima Bibi is my Chachazad sister. Gojra More is at the distance of 4/5 KM from Chak of Girwah. The distance of Chak No.356 from my residence is at about 14/15-KM." therefore, they both were "chance witnesses" and were thus required to establish valid and acceptable reason to prove their presence at the "time and place" of occurrence. It was case of the prosecution as mentioned in the application for registration of the case (Ex.PJ) that on the day of occurrence, complainant lady along with her daughter namely Allah Rakhi (now deceased of the case) and Manzoor (cited eye-witness/PW-9) on the loader Rickshaw of their relative namely Muhammad Rashid came at Gojra More Adda for brining grocery articles on the eve of Khatam of 7th of late husband of the complainant and after taking grocery when they crossed Total Petrol Pump on loader Rickshaw for going back, Muhammad Nasir (appellant) and Muhammad Shahbaz (co-accused, since acquitted) came on motorcycle, stopped the motorcycle and committed the occurrence, hence purpose of going of the complainant along with other witnesses and deceased lady was bringing the grocery articles as per application (Ex.PJ), said grocery articles were also purchased but any grocery article/item was neither taken into possession by the Investigating Officer during investigation of the case nor produced during trial of the case and relevant portion of the statement of Manzoor (PW-9) in this regard reads as follows:- "Grocery was not taken into possession by the IO." Presence of any grocery article at the spot has even not been mentioned in the site plan of occurrence i.e. Ex.PP and Ex.PA. Therefore, aforementioned reason claimed by the complainant and other cited eye-witnesses regarding their presence/availability at the relevant "time and place" of occurrence could not be established; in this regard, guidance has been sought from the cases of "Muhammad Rafique v. The State" (2014 SCMR 1698) and "Arshad Khan v. The State" (2017 SCMR 564); relevant portion from latter case law is as under: - "Both the eye-witnesses produced in this case, i.e. Zahid Khan complainant (PW8) and Muhammad Sadiq (PW9) were very closely related to Mst. Naheed Akhtar deceased and they were admittedly chance witnesses. The said witnesses had maintained before the trial court that at the relevant time they were proceeding towards a mosque in order to offer Fajar prayers but a bare look at the site-plan of the place of occurrence shows that the houses of the said eye-witnesses were not situated close to the house of occurrence and they were situated so far away that they could not find any mention in the site-plan of the place of occurrence at all. No mosque near the house of occurrence had been shown in the said site-plan and, thus, the stated reason for presence of the said eye-witnesses near the place of occurrence never stood established on the record through any evidence whatsoever." In above scenario, evidence of both aforementioned cited witnesses, who could not establish any valid reason/cause regarding their stated presence at the stated time, at the place of occurrence, is "suspect" evidence and cannot be accepted without pinch of salt; guidance in this regard has been sought from the case of "Mst. Sughra Begum and another v. Oaiser Pervez and others" (2015 SCMR 1142) and relevant portion from paragraph No.14 of said case law is hereby reproduced: - "

14. A chance witness, in legal parlance is the one who claims that he was present on the crime spot at the fateful time, albeit, his presence there was a sheer chance as in the ordinary course of business, place of residence and normal course of events, he was not supposed to be present on the spot but at a place where he resides, carries on business or runs day to day life affairs. It is in this context that the testimony of chance witness, ordinarily, is not accepted unless justifiable reasons are shown to establish his presence at the crime scene at the relevant time. In normal course, the presumption under the law would operate about his absence from the crime spot. True that in rare cases, the testimony of chance witness may be relied upon, provided some convincing explanations appealing to prudent mind for his presence on the crime spot are put forth, when the occurrence took place otherwise, his testimony would fall within the category of suspect evidence and cannot be accepted without a pinch of salt." Further guidance on the subject has been sought from the case of "Muhammad Ashraf alias Acchu v. The State" (2019 SCMR 652), "Mst. Mir and another v. The State" (2020 SCMR 1850) and "Sarfraz and another v. The State" (2023 SCMR 670). Furthermore, Muhammad Rashid, who according to own case of prosecution contained in the application for registration of the case (Ex.PJ), is relative of the complainant as well as deceased lady in this case, on whose loader Rickshaw, they went to Gojra More Adda for bringing grocery articles, was the most important star witness in this case to prove that complainant along with deceased lady and cited eye-witness namely Manzoor went on his Rickshaw for the purpose of bringing grocery when occurrence took place, but he (Muhammad Rashid) was not produced by the prosecution rather he was given up being unnecessary and adverse inference in this regard can safely be drawn against the prosecution to the effect that had he been produced, he might not have supported the prosecution version and prosecution case is squarely hit by the Article 129 (g) of Qanun-e-Shahadat Order, 1984, as is held by Supreme Court of Pakistan in the case of "Lal Khan v. The State" (2006 SCMR 1846) in the following terms:- ".......Art. 129(g)

Criminal trial--withholding natural witness

Presumption.....Act of withholding of most natural and a material witness of occurrence would create an impression that had such witness been brought into witness-box, he might not have supported the prosecution

Prosecution, in such eventuality must not be in a position to avoid the consequence". Furthermore, Haleema Bibi (complainant/PW-8) herself conceded during cross-examination before the Court that Rashid used to ply rickshaw towards Shorkot side and relevant portion of her statement in this regard is hereby reproduced as under:- "Rashid used to ply Rickshaw towards Shorkot side. " Complainant also claimed that her clothes were smeared with blood and relevant portion of the statement of Haleema Bibi (complainant/PW-8) in this regard is hereby reproduced as under:- "My clothes were also smeared with blood." but it is noteworthy here that neither said clothes were taken into possession by the Investigating Officer of the case nor produced during trial of the case. As per application for registration of the case (Ex.PJ), though firing was made at Allah Rakhi (deceased of the case) when she was sitting in the Rickshaw but neither as per site plan of the place of occurrence (Ex.PA) nor recovery memo. of Rickshaw (Ex.PM), any shot fired during the occurrence, hit seat, body or any other part of the Rickshaw; furthermore, as per Postmortem Examination Report of the deceased as well as statement of Dr. Sonia Iqbal (PW-2), there was blackening and burning on injuries Nos.1-A, 2-A, 3-A and 4-A. It goes without saying that as per medical jurisprudence, burning on the wound caused by firearm weapon only appears if shot has been fired from few inches but as per site plan of the place of occurrence (Ex.PA), distance between assailant and the deceased when she sustained firearm injuries was 5-feet, hence shot fired from such distance cannot cause burning on the wound. So when all the aforementioned factors are taken into consideration in totality, then ocular account comprising of chance witnesses, is neither convincing nor confidence inspiring, hence cannot be relied for convicting and sentencing the appellant and thus discarded. It is trite law that medical evidence is mere supportive/confirmatory type of evidence; it can tell about locale, nature, magnitude of injury, duration of the injury and kind of weapon used for causing injury but it cannot tell about identity of the assailant who caused the injury; therefore, same neither can provide any corroboration nor is of any help to the prosecution in peculiar facts and circumstances of the case and in this regard guidance has been sought from the case of "Muhammad Ramzan v. The State" (2025 SCMR 762), relevant portion from the case law is as under:- "It is by now well settled that medical evidence is a type of supporting evidence, which may confirm the prosecution version of weapon used in the occurrence but it would not identify the assailant." So far as recovery of pistol .30-bore from the appellant through recovery memo. (Ex.PN) and report of Punjab Forensic Science Agency, Lahore (Ex.PS) wherein it has been mentioned that three cartridge cases have been identified as having been fired from said pistol are concerned, it is relevant to mention here that as per own case of the prosecution, pistol was statedly recovered on the pointing out of the appellant and was taken into possession through recovery memo/Ex.PN (copy of the same is available at page No.141 of the Paper-Book) and it has been mentioned therein categorically that number was rubbed on said pistol and relevant portion of the recovery memo (Ex.PN) is hereby reproduced as under:- It has been noticed that recovery memo was attested by Manzoor Hussain and Muhammad Rashid (witnesses), however, during recording of statement of Manzoor as PW-9, parcel of the pistol was de-sealed in the court, upon which it was categorically observed by the court that "no rubbing" was found on the pistol and relevant portion of the statement of PW-9 in this regard is hereby reproduced as follows:- (At this stage case property i.e sealed parcels of pistol, crime empties and live bullets were de-sealed on the request of learned defence counsel, case property Rickshaw, motorcycle is present for inspection of defence. There are five crime empties and one live bullet of .30-bore along with .30-bore pistol were found in sealed parcels. Photographs of the above said articles have been taken and be placed. Pistol .30-bore No.CAL-30 is made in china, no rubbing was found upon pistol. Case property again sealed.) (emphasis added) Hence it is crystal clear that the pistol upon which number was rubbed and which was statedly recovered from the appellant and secured through parcel and taken into possession vide recovery memo. (Ex.PN) was not sent to Punjab Forensic Science Agency for comparison, therefore, safe custody of statedly recovered pistol from the appellant has been compromised and not established/proved, which has ultimately made report of Punjab Forensic Science Agency, Lahore as inconclusive as well as inconsequential and of no help to the case of prosecution and in this regard, guidance has been sought from the dictum laid down in the cases of "Muhammad Saleem v. Shabbir Ahmed and others" (2016 SCMR 1605) and "Kamal Din alias Kamala v. The State" (2018 SCMR 577). So far as recovery of motorcycle from the appellant through recovery memo. (Ex.PO) is concerned, suffice it to say that since any registration number, model or company of motorcycle statedly used by the assailants in the occurrence has not been mentioned in the application for registration of the case (Ex.PJ) as well as FIR (Ex.PG), hence same is of no avail to the case of prosecution. As far as motive for the occurrence is concerned, Haleema Bibi (complainant/PW-8) in the application for registration of the case (Ex.PJ) has mentioned that Allah Rakhi (now deceased of the case) after being deserted had been living with her (complainant), accused had been trying to convince/agree Allah Rakhi but she refused to reconcile, due to which grudge, accused by way of firing committed her murder, however, any detail that why deceased lady was deserted from her house has not been brought on the record by the prosecution; furthermore, any date, time and place when appellant came for getting Allah Rakhi agreed has also not been mentioned by the prosecution; so much so, Faqeer Muhammad, S.I./Investigating Officer of the case (PW-10) during trial of the case categorically stated that he did not investigate regarding motive part of the FIR and relevant portion of his statement in this regard is hereby reproduced as under:- "I did not investigated qua the motive part of the FIR." So motive as alleged by the prosecution has not been proved.

9. It is well established principle of law that single dent/circumstance in case of prosecution is sufficient for acquittal; in this regard, case of "Abdul Ghafoor v. The State" (2022 SCMR 1527) can be safely referred.

10. In the instant case after examining the prosecution case from all corners and evaluating it on the touchstone of principle of "safe administration of criminal justice", this Court has arrived at the conclusion that prosecution has miserably failed to establish its case against the appellant beyond shadow of doubt. As prosecution has failed to prove its case against the appellant, therefore, there is no need to discuss defence version.

11. Resultantly, instant appeal bearing Crl. Appeal No.81582/2021, filed by Muhammad Nasir (appellant), is allowed; conviction recorded and sentence awarded to the appellant through impugned judgment dated: 17.12.2021 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.01 of 2022 is answered in negative and death sentence awarded to Muhammad Nasir is not confirmed. MH/M-68/L Appeal allowed.