2025 PLP 2585 (YLR)

Muhammad Jawad Zafar, J.

Through this single judgment, we intend to decide, Criminal Appeal No. 36284-J of 2021 filed by Arslan alias Abdul Hadi alias Moona, Shehroz alias Jojo Shah, Ehsan Ali alias Shano alias Gulfam, Jehanzaib alias Zaibi and Rana Abu Bakar, against their convictions and sentences, P.S.L.A. No. 40964 of 2021 filed by Rashid Mahmood and Criminal Revision No. 40965 of 2021 filed by Rashid Mahmood for enhancement of sentences, whereas Murder Reference No. 96 of 2021 transmitted by the learned trial court for confirmation or otherwise of death sentence of Arslan alias Abdul Hadi alias Moona, appellant under Section 374 of the Code of Criminal Procedure 1898 ("Code" or "Cr.P.C."), all the matters being originated from the same judgment dated 29.05.2021 passed by learned Additional Sessions Judge, Wazirabad, in the private complaint under Sections 302, 324, 109, 148 and 149 of the P.P.C emanated from First Information Report ("FIR") No. 111/2018 dated 23.04.2018, offences under Sections 302, 324, 109, 148, 149 of the P.P.C registered at Police Station Ahmed Nagar, District Gujranwala, whereby at the conclusion of the trial in the said case, the learned trial court, while acquitting the co-accused namely Mushtaq Ahmad and Mazhar Hussain, convicted and sentenced the appellants as under: Arslan alias Abdul Hadi alias Moona son of Ijaz Ahmed Under Section 302(b), P.P.C, sentenced to death as ta'zir with direction to pay Rs.500,000/- as compensation to legal heirs of the deceased in terms of Section 544-A, Cr.P.C., in case of default, he shall further undergo S.I for six months. The compensation, if not paid, shall be recoverable under Section 544-A(2) C.P.C., as arrears of land revenue. Under Section 148/149 P.P.C, sentenced to rigorous imprisonment for three years. Ehsan alias Shano alias Gulfam son of Boota alias Sher Ali Under Section 302(b) P.P.C imprisonment for life as ta'zir read with Section 149 P.P.C, with direction to pay Rs.2,50,000 as compensation to legal heirs of the deceased in terms of Section 544-A, Cr.P.C. and in case of default, he shall further undergo S.I for six months. The compensation, if not paid, shall be recoverable under Section 544-A(2) C.P.C., as arrears of land revenue. Under Section 148/149 P.P.C, sentenced to rigorous imprisonment for three years. Shehroz alias Jojo Shah son of Tariq Shah Under Section 302(b) P.P.C imprisonment for life as ta'zir read with Section 149 P.P.C, with direction to pay Rs.2,50,000/- as compensation to legal heirs of the deceased in terms of Section 544-A, Cr.P.C. and in case of default, he shall further undergo S.I for six months. The compensation, if not paid, shall be recoverable under Section 544-A(2) C.P.C., as arrears of land revenue. Under Section 148/149 P.P.C, sentenced to rigorous imprisonment for three years. Rana Abu Bakar son of Sur Buland Under Section 324 P.P.C, attempt to Qatl-i-Amad, sentenced to rigorous imprisonment of seven years with fine of Rs. 100,000/- as compensation to legal heirs of the deceased in terms of Section 544-A, Cr.P.C., in case of default, he shall further undergo S.I for three months. The compensation, if not paid, shall be recoverable under Section 544-A(2) C.P.C., as arrears of land revenue. Under Section 337-F(iii) P.P.C (for jurh-ghayr-jaifah and mutalahimah) and sentenced to rigorous imprisonment for three years as ta'zir and to pay Rs.50,000/- as daman to injured Yasir Abdullah. Under Section 148/149 P.P.C, sentenced to rigorous imprisonment for three years. Jehanzaib alias Zaibi son of Mushtaq Ahmad Under Section 324 P.P.C, attempt to Qatl-i-Amad, sentenced to rigorous imprisonment of seven years with fine of Rs.100,000/- as compensation to legal heirs of the deceased in terms of Section 544-A, Cr.P.C., in case of default, he shall further undergo S.I for three months. The compensation, if not paid, shall be recoverable under Section 544-A(2) C.P.C., as arrears of land revenue. Under Section 337-F(iii) P.P.C (for jurh-ghayr-jaifah and mutalahimah) and sentenced to rigorous imprisonment for three years as ta'zir and to pay Rs.50,000/- as daman to injured Yasir Abdullah. Under Section 148/149 P.P.C, sentenced to rigorous imprisonment for three years. All the sentences shall run concurrently, benefit of Section 382-B Cr.P.C. is extended in favour of the Appellants.

2. The prosecution story as given in the judgment of the trial court reads as under: "Succinctly, facts of the case are that on 22.04.2018, complainant's nephew Furqan Asif son of Muhammad Asif, Yasir Abdullah son of Arshad Mahmood, Adnan son of Muhammad Asif were going to the home of sister of Yasir Abdullah. Complainant along with Dawood PW were going behind them. When at 8:15 p.m. Furqan, Yasir Abdullah and Adnan reached near the home of sister of Yasir Abdullah, Rashad Mahmood complainant/ PW-10 along with others witnessed in the light of bulbs that accused persons namely Arslan alias Moona armed with pistol, Jehanzaib alias Zaib armed with pistol, Ehsan alias Shano armed with pistol, Sheroze alias Jojo Shah armed with pistol, Rana Abu Bakar armed with pistol, all accused present in court along with five other unknown armed with firearm weapons came in front of them instantly and accused Arslaan alias Moona raised Lalkara that Furqan and Yasir Abdullah may not be spared and made fire shot at Furqan which hit him on the left flank near the heart. Then accused Sheroz alias Jojo Shah fired at Furqan which hit him on the right flank and Furqan fell down. Accused Ehsan alias Shano made a fire shot with his pistol at Furqan which hit at the inner side of his right elbow. Accused Jehanzaib alias Zaib made straight fire to Yasir Abdullah which hit Yasir Abdullah on the upper part of the knee. Then accused Rana Abu Bakar fired at Yasir Abdullah which hit him on the left thigh and he fell down. Complainant (PW-10) and other raised hue and cry and accused persons succeeded to flee away while making aerial firing. Then complainant along with the father of Yasir Abdullah took both the severely injured Yasir Abdullah and his nephew Furqan but Furqan could not survive and died in the way towards THQ Hospital, Wazirabad while Yasir Abdullah injured was referred to DHQ Hospital, Gujranwala due to his serious condition."

3. After recording the cursory statements of the complainant and Prosecution Witnesses ("PWs"), the appellants and acquitted co-accused were summoned to face the trial. Learned trial court, after observing all the pre-trial codal formalities, framed charge under Sections 302, 324, 109, 148 and 149 of the P.P.C against the appellants along with their acquitted co-accused on 02.05.2019, to which they pleaded not guilty and claimed trial. The prosecution in order to prove its case produced as many as fourteen PWs and two witnesses were examined as Court Witnesses ("CWs"). Rashid Mahmood, complainant of the case, testified as PW-10; Dawood, eye-witness of the occurrence, deposed as PW-11; Yasir Abdullah, the injured witness, testified as PW-12; Mazhar Iqbal ASI, who chalked the formal FIR (Exh.PE) through computer operator on the basis of written complaint (Exh.PE/1) of the complainant (PW-10) appeared as PW-3; Dr. Muhammad Umair, who conducted the Post-Mortem Examination of the deceased appeared as PW-13; Dr. Umair-Ul-Hassan, who identified the handwriting and signatures of Dr. Faisal Iqbal, the then Registrar surgical unit No.3 of Jinnah Hospital, Lahore, who prepared the original treatment operation notes (Exh.PC/1) of Yasir Abdullah (PW-12/injured witness) appeared as PW-14; Muhammad Asghar SI, first Investigating Officer of the case, appeared as CW-1 and Muhammad Amjad Khokhar SHO, second Investigating Officer of the case, appeared as CW-2. The remainder of prosecution witnesses were more or less formal in nature. The prosecution, gave up Tasaddiq Hussain PW, Farooq Ahmed PW and Adnan PW being unnecessary and after tendering the reports of Punjab Forensic Science Agency, Lahore ("PFSA"); DNA and Serology Analysis Report (Exh.PN), Firearm and Toolmarks Examination Report (Exh.PP) and Firearm and Toolmarks Examination Report (Exh.PQ), closed its evidence.

4. Thereafter the statements of the appellants and acquitted co-accused under Section 342 Cr.P.C. were recorded wherein they refuted the allegations levelled against them and professed their innocence. The appellants neither opted to appear as their own witness on oath as provided under Section 340(2) of the Code of Criminal Procedure, 1898 in disproof of the allegation levelled against them, nor produced any defence evidence.

5. The learned trial court vide judgment dated 29.05.2021 found the appellants guilty, convicted and sentenced them as mentioned above, however, acquitted their co-accused namely Mushtaq Ahmed and Mazhar Hussain through the same judgment by extending them the benefit of doubt.

6. We have heard the arguments of the learned counsel for the appellants and learned Deputy District Public Prosecutor assisted by learned counsel for the complainant meticulously and also scanned the record minutely with their able assistance.

7. It emerges from wade through the record that the unfortunate occurrence, whereby Furqan Asif lost his life, Yasir Abdullah (PW-12) was injured, took place at 8:15 p.m. on 22.04.2018 while the matter was reported to the police on 23.04.2018 at 4:10 am, with an inordinate delay of about 7 hours and 55 minutes despite the police station being merely 4 kilometers away from the place of occurrence. According to column No. 3 of the inquest report (Exh.CW-1/2), the date and time when police got information about the death is scribed as 23.04.2018 at 4:10 a.m. Such belated lodging of the FIR (Exh.PE) shattered the sanctity of the same and reflects that the time was consumed in fabricating, deliberating, consulting and concocting a false story, as no plausible justification or adequate explanation is furnished by the prosecution for this delay.

8. We have noted that Rashid Mahmood, complainant of the case (PW-10) being dissatisfied with the police investigation, filed a private complaint (Exh.PH) on 15.03.2019 with the delay of almost ten months and twenty-two days of the occurrence. Prosecution has not given any plausible reasoning qua such delay meaning that the private complaint (Exh.PH) has been filed after due deliberation and consultation just to fill up the lacunas left in the FIR (Exh.PE). We fortify our view from the dictum laid down in case law titled as "Muhammad Azad v. Ahmad Ali and 02 others" (PLD 2003 SC 14) wherein the Supreme Court of Pakistan has held as under:- "S.302--Constitution of Pakistan (1973), Art. 185--Appeal against acquittal-Private complaint suffered from an unexplained delay of three months and four days which apparently had been filed after due deliberation, consultation and in consonance with the injuries shown in the postmortem report

Complainant and eye-witnesses had improved the prosecution case by exaggerating the matter beyond the contents of the FIR registered earlier by the complainant, in order to bring the case in consonance with the medical evidence..."

9. Along the same lines, perusal of the Post-Mortem Examination Report of the deceased (Exh.PM to PM/2), reveals that the dead body was received in the morgue at 9:30 p.m. on 22.04.2018, while the complet documents from the police were also received at 7:30 a.m. on 23.04.2018. Dr. Muhammad Umair (PW-13) conducted the autopsy of the deceased 7:45 am, after a lapse of approximately 11 hours and 30 minutes. In cross-examination, he admitted that he received the written application from the police to conduct the Post-Mortem Examination at 7:30 am. The relevant excerpt of his cross-examination is infra: "I received the police papers on 23.04.2018 at about 7:30 am with a delay of 10 hours of reaching the dead body in the dead house. There was no delay on my part as when I received the police papers I conducted post mortem of the dead body of the deceased. I mean to say the word immediate 30 to 60 minutes. I guessed the probable duration between death and post mortem was 11 to 12 hours....." When the learned Deputy District Public Prosecutor and learned counsel for the complainant were confronted to explain the delay in carrying out the Post-Mortem Examination of the deceased, they were unable to point any justifiable reason for the same from the entire record. Such unexplained delay in the Post-Mortem Examination of a deceased would surely put a prudent mind on guard to very cautiously access and scrutinize the prosecution's evidence. In such circumstances, the most natural inference would be that the delay so caused was for preliminary investigation and prior consultation to nominate the accused persons and plant eye-witnesses of the crime.

10. Another striking feature of this case is that the incident took place in darkness; in such a situation, the prosecution must establish presence of the source of light to rule out the possibility of mistaken identification, as this is a crucial rule of caution rather than a statutory requirement. Light enable witnesses to identify the lineaments and physiognomy of the offender whereas darkness leaves them unable to accurately recognize the perpetrator In the present case, although the source of light (bulb) was mentioned in the FIR (Exh. PE) and site plan (Exh. CW-1/4), but the fact remains that no source of light was seized during investigations by both the investigating Officers, which reflects that no light was present at the crime scene. Therefore, it is held that the mention of the source of light in the FIR (Exh.PE) and the site plan (Exh.CW-1/4) appears to be hypothetical, raising serious doubts about the presence of the light at the crime scene during the occurrence. This inconsistency casts skepticism on the credibility of the witnesses who maintain that they witnessed the occurrence in the dark, and it significantly affects the veracity of the identification of the accused.

11. Shifting to another aspect of the prosecution's case, we observe that it primarily relies on the statements of Rashid Mahmood, the complainant (PW-10), Dawood Ahmad (PW-11), and Yasir Abdullah (PW-12/injured witness). According to the prosecution's narration in the FIR (Exh.PE), on the day of the incident, Furqan Asif deceased, and Yasir Abdullah (PW-12/injured witness) were heading to the house of Yasir's sister, while Rashid Mahmood (PW-10) and Dawood Ahmad (PW-11) were following them. It is noteworthy that no plausible explanation has been provided by these witnesses for following the deceased Furqan Asif and injured Yasir Abdullah at the exact time when the appellants allegedly attacked and caused injuries to Yasir Abdullah (PW-12) and murdered Furqan Asif. This lack of a reasonable explanation raises questions about the fact of following the deceased and the injured Yasir Abdullah (PW-12) by the above said PWs. Akin to the above, Rashid Mahmood, complainant of the case (PW-10) is a resident of Kaka Kalo, Tehsil Wazirabad, District Gujranwala, which is 1 1/4 Kms away from the place of occurrence, whereas the residence of Dawood Ahmad (PW-11) was at the distance of one and half acres from the place of occurrence, but he admitted in his cross-examination that he works at private company in Islamabad, about more than hundred kilometer away from his residence. Their presence at the crime scene is not only highly improbable but also unnatural, and at best render their depositions as of 'chance witnesses'. No cogent reason has been provided by Rashid Mahmood, complainant of the case (PW-10) and Dawood Ahmad (PW-11) to justify their presence at the venue of the occurrence. Resultantly, the testimonies of said prosecution witnesses are discarded in view of the settled principle of law that when a single doubt reasonably shakes the credibility of the presence of a witness at the venue of the crime, the same is sufficient to discard the entire testimony of said witness in its entirety.

12. In addition thereto, we have also noted that the statement of the injured witness, Yasir Abdullah (PW-12) was recorded by Muhammad Asghar SI (CW-1) on 24.04.2018, on the next day of lodging of FIR (Exh.PE). The relevant excerpt of his examination-in-chief is infra: "....On 24.04.2018, I deposited the sealed parcel of crime empties, led bullet, blood stained earth in the office of PFSA, Lahore. I went to the Jinnah Hospital, Lahore where I recorded the statement under section 161 Cr.P.C. of injured Yasir Abdullah after getting the permission from the concerned authority...." The above material aspect of the prosecution's case regarding the one-day delay in recording the statement of Yasir Abdullah (PW-12 / injured witness) under Section 161 Cr.P.C. not only diminishes the evidentiary value of his statement but also raises a reasonable doubt concerning the injuries he received, especially since the prosecution case is silent on the point as to whether the witness was unable to record his statement during that period. It is settled principle that even one or two days unexplained delay in recording the statement of eye-witnesses would be fatal and testimony of such witnesses cannot be safely relied upon. The contention of learned counsel for the complainant that deposition of the injured witness, supported by the medical evidence is sufficient proof of the guilt of the appellants is not tenable. Albeit, the presence of the injured witness cannot be doubted at the scene of the crime; however, the question remains whether he is a truthful witness. Merely the fact that he sustained injuries does not automatically establish his credibility, especially when, as previously discussed, the existence of a source of light at the crime scene has been disbelieved by us, casting a significant skepticism on the accuracy of his identification. The alleged injuries will not stamp him to be a truthful witness because of the above and other material discrepancies. Reliance in this respect is being made to the case titled as "Amin Ali and another v. The State" (2011 SCMR 323), wherein the Hon'ble Supreme Court of Pakistan observed as under: "Certainly, the presence of the injured witnesses cannot be doubted at the place of incident, but the question is as to whether they are truthful witnesses or otherwise, because merely the injuries on the persons of P.Ws. would not stamp them truthful witnesses. It has been held in the case of Said Ahmed supra as under:-"It is correct that the two eye-witnesses are injured and the injuries on their persons do indicate that they were not self suffered. But that by itself would not show that they had, in view of the afore noted circumstances, told the truth in the Court about the occurrence; particularly, also the role of the deceased and the eye-witnesses. It cannot be ignored that these two witnesses are closely related to the deceased, while the two other eye-witnesses mentioned in the FIR namely, Abdur Rashid and Riasat were not examined at the trial. This further shows that the injured eye-witnesses wanted to withhold the material aspects of the case from the Court and the prosecution was apprehensive that if independent witnesses are examined, their depositions might support the plea of the accused."

13. Another notable aspect of the case is that the FIR (Exh. PE) contains a detailed photographic narration of the entire occurrence, explicitly attributing specific injuries caused by firearms to the appellants. The account was presented with such precision that every element of the incident may perfectly specified. This degree of specificity raises a substantial doubt as to the authenticity of the account, strongly suggesting that the complainant had fabricated the entire narrative as set forth in the FIR (Exh.PE) after consulting with the Post-Mortem Examination Report (Exh.PM) and Medico Legal Examination Certificate (Exh.PL).

14. Another important fact of this case is that Jehanzaib, appellant, was declared innocent to the extent of causing firearm injuries, in two consecutive investigations. Concerning this aspect, Muhammad Asghar S.I, Investigating Officer (CW-1) stated in his cross-examination as infra: "..... my findings in respect of Jehanzaib accused was that neither he was present at the place of occurrence nor he participated in the occurrence...." In this regard, Muhammad Amjad Khokhar, SHO (CW-2), testified in his cross-examination as infra: "..... it is correct that during my investigation, no role of accused Jehanzaib alias Zaibi was found in the occurrence...." Moreover, Abdul Hadi, appellant, was declared innocent and was not found present at the crime scene, in the investigation conducted by Muhammad Asghar S.I, first Investigating Officer (CW-1). Similarly, Rana Abu Bakar, appellant, was not found involved in causing injury to any person during the investigation conducted by Muhammad Amjad Khokhar, SHO, the Second Investigating Officer (CW-2). In this regard testimonies of the investigating officers are infra: Muhammad Asghar S.I, Investigating Officer (CW-1):- "..... it is correct that as per my investigation, Abdul Hadi accused was not found to be present at the place of occurrence at the time of occurrence...." Muhammad Amjad Khokhar, SHO, Investigating Officer (CW-2):- "..... it is correct that Abu Bakar alias Umar accused was not found in my investigation to have injured anybody in occurrence. Albeit, it is generally established principle of law that ipse dixit of the police is not binding on the court, yet it can be considered if it is found on some cogent and convincing evidence. A reference in this respect may be made to the case titled as "Khalid Mehmood and others v. The State" (2011 SCMR 664) wherein it has been held infra:- "Adverting to the case of Abid Hussain appellant, it may be observed that no weapon of offence has been effected from his possession. He was found innocent by different police agencies including Ch. Akhtar Hussain, DSP, CIA, Sheikhupura and got discharged from the Court of the Magistrate, which order was not challenged by the complainant. We entertain serious doubt in our minds, regarding participation of appellant Abid Hussain in the commission of crime. The evidence of the complainant and Nasir Ahmad P.Ws. qua appellant Abid Hussain is not credible and trustworthy." Similar view has also been taken in the case reported as "Sajjad Hussain v. The State and others" (2022 SCMR 1540).

15. So far as question of recoveries is concerned, it is noted by us that the appellant Jehanzaib was arrested on 05.06.2018 and no recovery was effected upon his disclosure, whereas rest of the appellants were arrested on 18.05.2018, who led to the recoveries on the basis of disclosures made by them on 30.05.2018: from Gulfam, appellant, a 30-bore pistol (P4) and three live rounds (P5/1-3), as mentioned in recovery memo (Exh. PB); from Shehroz, appellant, a 30-bore pistol (P6) and four live rounds (P7/1-4), as mentioned in recovery memo (Exh. PC); and from Umar, appellant, a 30-bore pistol.(P8) and three live rounds (P9/1-3), as mentioned in recovery memo (Exh.PD) which were deposited to the office of PFSA, Lahore for comparison with the crime empties already secured from the place of occurrence. Although the Firearms and Toolmarks Examination Report (Exh.PQ) is positive but it is trite that once the intrinsic value of ocular account is disbelieved then rest of the corroboratory pieces of evidence, even of a higher degree, would automatically collapse. A reference is invited to the case titled "Riaz Mimed v. The State" (2010 SCMR 846). The relevant portion of the judgment is reproduced for ready reference:- "The prosecution also produced the positive FSL report, meaning thereby, the crime empty secured from place of incident matched with the gun recovered from the possession of the appellant. This being a corroborative piece of evidence, which by itself is insufficient to convict the appellant in absence of substantive piece of evidence."

16. By the same token, the prosecution specifically alleged that the motive behind the occurrence was a previous enmity between the parties. We have observed that the alleged motive rests solely on the oral assertion of the complainant as no corroborative evidence was presented by the prosecution to substantiate its claim. It is well-settled in criminal jurisprudence that the prosecution is not obligated to prove motive in every murder case, it is equally established that once the prosecution sets up a specific motive, it assumes the burden of proving it. Failure to discharge this burden operates to the detriment of the prosecution, not the accused. Consequently, we have no hesitation in concluding that the prosecution has failed to prove the motive behind the unfortunate incident.

17. In view of the aforementioned deliberations, it cannot be stated with any degree of certainty that the prosecution has succeeded in establishing its case against the appellants beyond any reasonable doubt, as adumbrate thereto, the prosecution has failed to prove its case through cogent, reliable and trustworthy evidence. To this end, it is trite that it is not necessary that there be multiple infirmities in the prosecution case or several circumstances creating doubt. A single or slightest doubt, if found reasonable, in the prosecution case would be sufficient to entitle the accused to its benefit, not as a matter of grace and concession but as a matter of right.

18. The upshot of the discussion made hereinabove is that the Criminal Appeal No. 36284-J of 2021 is accepted and the conviction and sentences of the appellants are hereby set aside and the appellants are acquitted of the charge under Sections 302, 324, 109, 148, 149 of the P.P.C by extending them benefit of doubt. Consequently, Murder Reference No. 96 of 2021 is answered in negative and the death sentence awarded to the appellant namely Arslan alias Abdul Hadi alias Moona is not confirmed. The appellants, being in custody, are ordered to be released forthwith if their custody is no longer required by jail authorities in any other case.

19. After accepting the appeal of appellants and setting aside the impugned judgment, this Criminal Revision No.40965 of 2021 is found bereft of merits and is hereby dismissed.

20. Insofar as the Petition for Special leave to Appeal against acquittal bearing P.S.L.A. No. 40964 of 2021 is concerned, it is observed that, Yasir Abdullah (PW-12/injured witness) had not assigned any role to Mushtaq Ahmed (Respondent No.2) and Mazhar Hussain (Respondent No.3) in his testimony before the learned trial court. Along the same lines, no evidence was led by the prosecution to substantiate the charge against Mushtaq Ahmed (Respondent No.2) and Mazhar Hussain (Respondent No.3), therefore, the learned trial court has rightly acquitted the respondents of the charge. So, instant P.S.L.A. being devoid of any merits is hereby dismissed. Consequently, leave is refused. JK/A-61/L Appeal allowed.