2025 PLP 1346 (YLR)

Shehram Sarwar Ch., J.

Amjad Faiz Sultan and Muhammad Rizwan (appellants) along with their co-accused namely Ehsan Elahi, Abdul Qayyum, Tasawar Elahi, Haji Muhammad Waris, Zafar Ullah, Nazar Hayat, Haji Ahmad and Zafar Abbas were tried by the learned Addl. Sessions Judge, Khushab in a private complaint Under Sections 302, 109, 148 and 149 P.P.C. instituted by Abdul Ghaffar, complainant being dissatisfied with the investigation conducted by the police in case FIR No.268 dated 05.07.2018, offence under Sections 302, 109, 148 and 149 P.P.C. registered at Police Station City Jauharabad District Khushab for the murder of Ahmad Iqbal brother of complainant. Vide judgment dated 25.02.2021 passed by the learned trial court, Amjad Faiz Sultan, appellant has been convicted under Section 302 (b) P.P.C. and sentenced to death with a further direction to pay Rs.4,00,000/- (rupees four lakh only) as compensation under Section 544-A Cr.P.C. to the legal heirs of deceased and in default whereof to further undergo simple imprisonment for six months. Muhammad Rizwan (appellant) was convicted under Section 302(b)/34 P.P.C. and sentenced to life imprisonment with a further direction to pay Rs.2,00,000/- (rupees two lakh only) as compensation under Section 544-A Cr.P.C. to the legal heirs of deceased and in default whereof to further undergo simple imprisonment for six months. Benefit of Section 382-B Cr.P.C. was extended to Muhammad Rizwan (appellant). Through the same judgment learned trial Court acquitted Ehsan Elahi, Abdul Qayyum, Tasawar Elahi, Haji Muhammad Waris, Zafar Ullah, Nazar Hayat, Haji Ahmad and Zafar Abbas by extending them benefit of doubt and against their acquittal complainant has filed Crl. PSLA No.16905 of 2021. Assailing the above convictions and sentences, the appellants have filed the appeal in hand whereas the learned trial court has sent Murder Reference No.47 of 2021 for confirmation or otherwise of Amjad Faiz Sultan, appellant's sentence of death, as required under Section 374 of the Code of Criminal Procedure. 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.PJ) registered on the statement (Ex.PA) of Abdul Ghaffar, complainant (PW.1) is that on 05.07.2018 he along with Moazzam Ali went to DC house on motorcycle to see his brother Ahmad Iqbal who, being a Head Police Constable, was deployed there as a guard. After having conversation for a little while Ahmad Iqbal took them to new lorry adda Joharabad for having lunch. Complainant and Moazzam Ali were riding their motorcycle whereas Ahmad Iqbal was riding his motorcycle and they were going to Madina Hotel in the street of lorry adda masjid via new lorry adda. Ahmad Iqbal was at a short distance from them on his motorcycle bearing registration No.KBK/3544 Honda

125. At about 11:00 a.m. when he reached in front of Alkamal weapon repairing shop, suddenly, Amjad Faiz Sultan, Qayyum, Tasawar Elahi, Muhammad Rizwan, Haji and Zafar Abbas all armed with pistols came there while riding on three motorcycles and after alighting from their bikes they stopped Ahmad Iqbal. Amjad Faiz Sultan raised lalkara that today they had come to take revenge of their brother's murder. Amjad Faiz Sultan made a straight fire-shot hitting on right side of chest of Ahmad Iqbal. Qayyum made a second fire-shot hitting below abdomen of Ahmad Iqbal. Third fire was made by Tasawar Elahi which landed on right side of abdomen of Ahmad Iqbal who fell down along with the motorcycle. On his falling position, Muhammad Rizwan made a fire-shot hitting on right biceps of Ahmad Iqbal. Haji Machi made a fire-shot which landed above front right thigh of Ahmad Iqbal. Zafar Abbas made a fire-shot hitting on lower abdomen of Ahmad Iqbal. Amjad Faiz Sultan made a fire which landed on right shoulder of Ahmad Iqbal. Thereafter, the accused persons while making firing fled away from the spot on their motorcycles towards south. The complainent along with Moazzam Ali and Jameel Aftab. PWs witnessed the occurrence who, being empty-handed and due to fear of life, did not go near them. They attended Ahmad Iqbal who was seriously injured and was shifted to DHQ Hospital Joharabad through rescue 1122 but he succumbed to the injuries after reaching the hospital. The motive behind the occurrence was that in the year, 2016 Ubaid Ullah real brother of accused persons namely Amjad Faiz Sultan, Qayyum and Tasawar Elahi was murdered regarding which FIR No.84 dated 25.10.2016 offence under Sections 302, 447, 511, 109, 148 and 149 P.P.C was registered against Ahmad Iqbal and others at Police Station Jora Kalan and due to the said grudge, Amjad Faiz Sultan etc, six in number, have committed the occurrence on the abetment of Haji Muhammad Waris, Ehsan Elahi, Zafar and Nazar Hayat. It was further alleged in the FIR that on 03.07.2018 at about 5:00 p.m. Abdul Qadir and Muhammad Ali, PWs overheard the conspiracy qua murder of Ahamd Iqbal (deceased) being made by the aforesaid accused persons with Amjad Sultan, Qayyum, Tasawar Elahi, Haji Machi and Zafar Abbas while sitting at the baithak of Zafar Ullah.

3. Arguments heard. Record perused.

4. The salient features of the prosecution case are as under:- (i) The ocular account in this case was furnisned by Abdul Ghaffar, complainant (PW.1) and Moazzam Ali (PW.2). The presence of both these PWs on the spot at the time of incident is doubtful in nature because they did not receive even a scratch during the incident. Admittedly, Ahmad Iqbal (deceased) was real bromer of Abdul Ghaffar, complainant (PW.1) as well as brother-in-law Moazzam Ali (PW.2) but both these PWs did not make an abortive attempt to save the deceased from the clutches of appellants and their co-accused. Such conduct of above said PWs runs contrary to the natural human response which one is expected to demonstrate at the time of such tragic incident. In the FIR as well as before the learned trial Court it was the case of complainant that on 05.07.2018 he along with Moazzam Ali went to DC house on motorcycle to see Ahmad Iqbal from where they along with deceased went to new lorry adda Joharabad for lunch but the said motorcycle on which the PWs arrived at the place of occurrence was not taken into possession by the Investigating Officer during the course of investigation and the failure to prove the mode through which the PWs came to arrive at the place of occurrence, has vitiated our trust in the prosecution witnesses. We have further noted that the above said eye-witnesses haye utterly failed to bring anything on the record establishing their claimed presence with the deceased at the relevant time. Their houses were far away from the place of incident. They have no place of business or agricultural land near the place of incident. Therefore, we hold that both the above said PWs were chance witnesses. Admittedly, 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. The testimony of chance witness may be relied upon, provided some convincing explanations appealing to a 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. Reliance may be placed on the cases reported as "Mst Shazia Parveen v. The State" (2014 SCMR 1197), "Muhammad Rafique v. The State" (2014 SCMR 1698), "Naveed Asghar and 2 others v. The State" (PLD 2021 SC 600) and "Abdul Khaliq v. The State" (2021 SCMR 325). (ii) It was case of the complainant in the FIR and stated by him before the learned trial court that the appellants along with their co-accused while armed with their respective weapons attacked upon Ahmad Iqbal (deceased) and narrated numerous specific seat/locale of injuries allegedly caused by the accused persons including the appellants to the deceased. The scrutiny of prosecution evidence reflects the falsity of eye-witnesses as the occurrence was committed within a few minutes and it was humanly impossible to provide such minute details in such a photographic manner or to assign the specific role and furnish detailed description of the same, which would rather infer to falsely rope in the accused persons, as such lodging of the FIR with such minutest details of the case rules out the possibility of truthfulness and narratives of the FIR suggest the exaggeration and improvements made by the eye-witnesses admittedly nimical towards the appellants. In this regard, reliance may be placed on the case laws reported as "Irfan Ali v. The State" (2015 SCMR 840) and "Munir Ahmad and others v. The State and others" (2019 SCMR 2006). (iii) The disturbing part of the ocular account is that on the basis of the same statements made by the eye-witnesses, Abdul Qayyum, Hai Ahmad, Tasawar Elahi and Zafar Abbas co-accused of the appellants, who also caused firearm injuries on the person of Ahmad Iqbal (deceased) and whose roles were exactly at par with that of the appellants, have been acquitted by the learned trial Court. It is settled by now that the evidence which was found doubtful to the extent of co-accused of the appelants cannot be believed against the appellants and the convictions and sentences of appellants are not sustainable on the same set of evidence. A reference in this respect may be made to the case of "Pervaiz Khan and another v. The State" (2022 SCMR 393). (iv) Motive behind the occurrence was that in the year, 2016 Ubaid Ullah real brother of accused persons namely Amjad Faiz Sultan, Qayyum and Tasawar Elahi was murdered regarding which FIR No.84 dated 25.10.2016 offences under Sections 302, 447, 511, 109, 148 and 149 P.P.C was registered against Ahmad Iqbal and others at Police Station Jora Kalan and due to the said grudge, the appellants and their co-accused committed the incident. Admittedly, the same motive was alleged against Qayyum and Tasawar Elahi co-accused of the appellants who have been acquitted by the learned trial Court. Moreover, motive is double edged weapon because if it could be a reason for the commission of a crime then at the same time it (motive) could be a reason for false involvement of an accused. Furthermore, no independent witness qua motive part of incident was produced by the prosecution during the trial. Therefore, we hold that prosecution has failed to prove motive against the appellants. (v) So far as alleged recoveries of 30 bore pistols at the instance of Amjad Faiz Sultan and Muhammad Rizwan, appellants are concerned the same are immaterial because the appellants were arrested in this case on 06.07.2018 whereas according to report of PFSA (Exh.PX), available on record, the crime empties were received in the said office on 09.07.2018 i.e. after the arrest of appellants. It is, by now, well established proposition of law that if the crime empty is sent to the Forensic Science Laboratory after the arrest of the accused or together with the crime weapon, the positive report of the said Laboratory loses its evidentiary value. Reliance in this respect is placed on the case of "Jehangir v. Nazar Farid and another" (2002 SCMR 1986), "Israr Ali v. The State" (2007 SCMR 525) and"Ali Sher and others v. The State" (2008 SCMR 707). (vi) 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 the appellants implicated in this case. Reliance is placed on case law titled as "Muhammad Saleem v. Shabbir Ahmed and others" (2016 SCMR 1605). (vii) So far as versions of the appellants taken by them in their statements recorded under Section 342, Code of Criminal Procedure are concerned, since the prosecution evidence is doubtful in nature, therefore, there is no need to discuss the defence versions which are exculpatory in nature.

5. 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 appellants 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 appellants. 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. Reliance is place on case law titled as "Muhammad Akram v. The State" (2009 SCMR 230).

6. For the foregoing reasons, the appeal in hand filed by Amjad Faiz Sultan and Muhammad Rizwan (appellants) is allowed. convictions and sentences awarded to them vide judgment dated 25.02.2021 passed by the learned trial Court are set aside and the appellants are acquitted of the charge levelled against them while extending them benefit of doubt. Amjad Faiz Sultan, appellant is in jail. He shall be released forthwith if not required to be detained in any other case. Muhammad Rizwan (appellant) is present in the Court on bail. His surety is discharged from the liability of bail bonds.

7. Murder Reference No.47 of 2021 is answered in the NEGATIVE and the sentence of death awarded to Amjad Faiz Sultan (convict) is NOT CONFIRMED.

8. In view of above discussion, Crl. PSLA No.15905 of 2021 against acquittal of Abdul Qayyum, Tasawar Elahi, Haji Ahmad and Zafar Abbas co-accused of the appellants having no merits is dismissed. JK/A-18/L Appeal allowed.