NAUMAN ULLAH and others Vs The STATE and others

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Balochistan high court

NAUMAN ULLAH and others—Appellants

Vs

The STATE and others—Respondents

Criminal Appeals Nos. 383, 391, 394, 397, 398 and 403, Criminal Revision No.217 and Murder Reference No. 65 of 2012, decided on 12th December, 2018.

Before Asjad Javaid Ghural, J

(a) Penal Code (XLV of 1860)—

—-Ss. 302, 324, 337-A(iii), 337-F(iii), 337-F(v), 337-L(2), 109, 148 & 149—Qatl-i-amd, attempt to commit qatl-i-amd, causing shajjah-i-hashimah, causing mutalahima, causing hashimah, causing hurt, abetment, rioting armed with deadly weapon, unlawful assembly—Appreciation of evidence—Delay of two hours and fifteen minutes in lodging FIR—Effect—Record showed that incident took place at 10.00 a.m., which was reported to the police on the same day at 12.00 noon—Crime report was chalked out at 12.15 p.m.—Complainant had deposed that the application for registration of the case was drafted by a person in presence of 8-10 persons including 4/5 Advocates—Facts remained that post-mortem examination of the deceased was conducted prior to the registration of the FIR—Circumstances suggested that FIR was lodged with due deliberation, fabrication and legal consultation by stopping the daily diary of the police station.

(b) Penal Code (XLV of 1860)—

—-Ss. 302, 324, 337-A(iii), 337-F(iii), 337-F(v), 337-L(2), 109, 148 & 149—Qatl-i-amd, attempt to commit qatl-i-amd, causing shajjah-i-hashimah, causing mutalahima, causing hashimah, causing hurt, abetment, rioting armed with deadly weapon, unlawful assembly—Appreciation of evidence—Benefit of doubt—-Ocular account in contradiction with medical evidence—Prosecution case was that the accused party while armed with deadly weapons assaulted on complainant party, made firing upon them, as a result of which, two persons of the complainant party died and four were injured—Motive of the occurrence was longstanding litigations between the families of the parties—Ocular account of the incident was furnished by three witnesses/injured including complainant—Complainant reiterated the contents of the crime report in his deposition before the Trial Court—Witnesses made almost identical story but the testimony of all the said material witnesses stood contradicted with the medical evidence—Complainant had deposed that he sustained injuries at his elbow and right ankle but as per medical certificate, the injury at his left elbow was non-existent whereas the other injury at his right ankle went through and through was an exit wound—Witness/injured had claimed that he sustained six injuries including two exit wounds during the occurrence but his Medico-Legal Certificate showed that the said injuries were caused through .12 bore gun as the same were pellet injuries—Lady witness/injured had sustained four firearm injuries with blackening and burning around the wounds caused by accused, who had already been acquitted of the charge by the Trial Court—Co-accused was attributed the role of causing firearm injury with his 12-bore gun at the back of lady injured witness but her Medico-Legal Certificate showed that the same was caused by some blunt weapon—Accused was attributed the role of causing firearm injury at the neck of witness but the said injury was non-existent—Record transpired that nine co-accused persons had already been acquitted of the charge while disbelieving the prosecution evidence including the injured witnesses especially having into account the variation in number and nature of the injuries being non-existent—Same set of witnesses, in circumstances, could not be believed to the extent of accused-appellants to maintain their conviction and sentence under capital charge—Co-accused had already been acquitted of the charge and no appeal against their acquittal had been preferred by the complainant or the State—In the present case, the stamp of injuries on the person of injured witnesses was though sufficient to establish their presence at the place of occurrence at the relevant time, yet their narration regarding number of accused persons carrying specific firearms, firing of each individual and the injuries sustained by the injured witnesses with exact locale and seat of injuries, was beyond human control—Locale and seat of injuries sustained by the injured witnesses as well as both the deceased showed that the same had been caused from one direction having same measurement possibly caused by one or two persons—Such situation indicated that the prosecution version about role assigned to the accused persons of causing one shot each, was totally vanished—Complainant/injured remained mum for twenty days and got recorded his statement under S. 161, Cr.P.C. before the police with considerable delay, which by itself rendered his authenticity to be legally not acceptable—Four injured witnesses did not appear in support of prosecution version rather they were given up by the prosecution being unnecessary—Possible inference under Art. 129(g) of Qanun-e-Shahadat, 1984 was that had they been produced before the trial court, they would have not supported the prosecution version—Motive as set up by the prosecution was that the parties were indulged in murderous enmity—Such enmity could be used by either side and the motive being double edged weapon might have possibly been the base of false implication of entire male family members of the opposite party—Circumstances established that prosecution had failed to prove the charge against the accused persons beyond shadow of reasonable doubt, benefit of which would resolve in favour of accused—Accused were acquitted, in circumstances, by setting aside conviction and sentences recorded by the Trial Court.

Shahbaz v. The State 2016 SCMR 1763; Tariq v. The State and others 2017 SCMR 1672; Imtiaz alias Taj v. The State and others 2018 SCMR 344 and Muhammad Asif v. The State 2017 SCMR 486 rel.

(c) Penal Code (XLV of 1860)—

—-Ss. 302, 324, 337-A(iii), 337-F(iii), 337-F(v), 337-L(2), 109, 148 & 149—Qatl-i-amd, attempt to commit qatl-i-amd, causing shajjah-i-hashimah, causing mutalahima, causing hashimah, causing hurt, abetment, rioting armed with deadly weapon, unlawful assembly—Appreciation of evidence—Weapons of offence were recovered at the instance of accused— Reliance— Scope— Record showed that firearms recovered at the instance of accused persons were sent to the Forensic Science Laboratory for its comparison with the crime empties claimed to have been secured from the place of occurrence after their arrest—Report of Forensic Science Laboratory was positive, yet the possibility could not be ruled out of consideration that the same had been managed and manoeuvered by making fire shots from the weapons recovered at the instance of the accused in order to get favourable report of Ballistic Expert—Recovery of respective firearms, in circumstances was inconsequential.

Nazeer Ahmed v. The State 2016 SCMR 1628 rel.

(d) Administration of justice—

—-Each and every case was to be decided on totality of impressions gathered from the facts and circumstances of the case.

Nadeem Ramzan v. The State 2018 SCMR 149 rel.

Syed Zeshan Haider, Syed Asim Bokhari, Ch. Haq Nawaz, Sohaib Altaf, Syed Badar Raza Gilani for Appellants.

Yasir Yaqoob, Qaisar Yaqoob, Imran Ullah, Abdul Ghaffar, Naeem Imran, Tanveer Ahmed, Muhammad Mushtaq and Naveed Ahmed on bail.

Mehar Muhammad Bakhsh, Muhammad Adnan Jatoi and Sardar Afzaal Ahmad Madahir for the Complainant.

Najeeb Ullah Jatoi, Deputy District Public Prosecutor for the State.

Date of hearing: 10th December, 2012.

JUDGMENT

ASJAD JAVAID GHURAL, J.—Through this common judgment, we propose to decide the titled criminal appeals under Section 410 Cr.P.C. preferred by appellants Nouman Ullah (Crl. Appeal No.383-12), Abdul Ghaffar, Naeem Imran, Tanveer Ahmad, Naveed Ahmed (Crl. Appeal No.391-12), Qaisar Yaqoob (Crl. Appeal No.394-12), Imran Ullah (Crl. Appeal No.397-12), Yasir Yaqoob (Crl. Appeal No.398-12) and Muhammad Mushtaq (Crl. Appeal No.403-12) whereby they have challenged the vires of judgment dated 14.11.2012 passed by the learned Additional Sessions Judge, Bahawalpur in case FIR No.684 dated 01.10.2008, in respect of offences under Sections 302, 324, 337-F(iii), 337-F(v), 337-A(iii), 337-L(2), 109, 148 and 149, P.P.C., registered at Police Station, Yazman District Bahawalpur whereby they were convicted and sentenced as under:–

Under Section 302(b)/149, P.P.C.

Death and to pay the compensation of Rs.100,000/- under Section 544-A, Cr.P.C. to the legal heirs of deceased Imtiaz Umar and in default thereof to further undergo simple imprisonment for six months.

Appellants Qaisar Yaqoob, Naeem Imran, Naveed Ahmad, Tanveer Ahmad, Imran Ullah, Abdul Ghaffar, Yasir Yaqoob and Muhammad Mushtaq.

Under Section 302(b)/149, P.P.C.

Imprisonment for life each for committing Qatl-i-Amd of Imtiaz Umar and to pay the compensation of Rs.100,000/- each under Section 544-A Cr.P.C. to the legal heirs of deceased Imtiaz Umar and in default thereof to further undergo simple imprisonment for six months.

All the aforesaid appellants were further convicted and sentenced,

Under Section 302(b)/149, P.P.C.

Imprisonment for life each for committing Qatl-i-Amd of Master Umar Hayat and to pay the compensation of Rs.100,000/- each under Section 544-A, Cr.P.C. to the legal heirs of the deceased and in default thereof to further undergo simple imprison-ment for six months each.

Under Section 324/149, P.P.C.

Rigorous imprisonment for 10-years each and to pay the fine of Rs.50,000/- each for launching murderous assault upon Saif Umer and Farooq Umar and in default thereof to further undergo simple imprisonment for six months each, on two counts.

Under Section 337-F(v)/149, P.P.C.

Rigorous imprisonment for

03-years each and to pay Daman of Rs.50,000/- each.

Under Section 337-A(iii)/149, P.P.C.

Rigorous imprisonment for 05-years each and to pay Arsh each, which shall be 10% of Diyat, to be paid to injured Farooq Umer.

Under Section 337-D/149, P.P.C.

Rigorous imprisonment for 05-years each and to pay Arsh, which shall be 1/3rd of Diyat each, to be paid to injured Farooq Umer.

Under Section 337-F(iii)/149, P.P.C.

Rigorous imprisonment for

02-years each and to pay Daman of Rs.30,000/- each to Farooq Umer.

Under Section 148, P.P.C.

Rigorous imprisonment for

03-years each and to pay the fine of Rs.5000/- each and in default thereof, to further undergo simple imprisonment for one month.

2. Murder Reference No.65 of 2012 for confirmation or otherwise of death sentence of appellant Naumanullah and Criminal Revision No.217 of 2012 preferred by complainant Muhammad Saif Umar seeking enhancement of sentence of respondents Naeem Imran, Naveed Ahmad, Qaisar Yaqoob, Yasir Yaqoob, Tanveer Ahmad, Abdul Ghaffar, Imran Ullah and Muhammad Mushtaq will also be decided through this common judgment.

3. The prosecution story unfolded in the crime report (Ex.PA/1) registered on the complaint of Muhammad Saif Umar is that on 01.10.2018 at about 10:00 a.m., he along with his father Umar Hayat and brothers Imtiaz Umar, Advocate, Ishfaq Umar, Farooq Umar and one Muhammad Asif, after offering Eid-ul-Fitr prayer and meeting with the people, had come out of the school of their Chak. They covered a short distance when suddenly, accused Bashir Ahmed armed with gun 12-bore, Muhammad Yaqoob, pistol, Ghaffar pistol, Tanveer rifle, Noman, Imran, Fakhar Yaqoob pistols respectively, Qaisar Yaqoob rifle, Yasir Yaqoob pistol, Muhammad Mushtaq, Abdul Sattar and Naveed Ahmad armed with respective rifles came there. Bashir Ahmad, Aman Ullah and Muhammad Abbas raised Lalkara to teach a lesson to Master Umar Hayat and his sons for opposing them whereupon Noman made a fire shot which landed at the left side of belly, the fire shot of Qaisar Yaqoob hit at the right thigh, the fire shot of Naeem at the left arm of Imtiaz Umar, Advocate. Shabbir Ahmad made a fire shot, which landed at the waist, the fire shot of Muhammad Naveed hit at the same place and the fire shot of Muhammad Saeed passed on by colliding with the head of deceased Umar Hayat. The complainant and his brothers tried to rescue their father and brother whereupon Abdul Sattar made a fire shot, which landed at the right side of belly, the fire shot of Tanveer Ahmad hit at the left elbow and the fire shot of Muhammad Yaqoob hit at the left buttock of Ishfaq Umar. Imranullah made a fire shot, which hit at the neck, the fire shot of Abdul Ghaffar hit at the right side of belly, the fire shot of Yasir Yaqoob hit at the left shoulder and the fire shot of Muhammad Mushtaq hit at the right thigh of Farooq Umar. Tanveer Ahmad made a fire shot, which hit at the ankle of right foot of the complainant. Muhammad Saeed repeated the fire shot, which landed at the neck of injured Muhammad Asif. On the report of firing, Nazia, Sadia and Rashida Farhat, paternal cousins of the complainant, came out of the house and rushed to the place of occurrence whereupon Bashir Ahmad made a fire shot, which landed at legs, waist, left finer and arm of Nazia. Amanullah made a fire shot, which hit at the arm and waist of Sadia. The fire shot of Muhammad Abbas hit at the waist of Rashida Farhat. This occurrence was the result of behind the scene abetment provided by Fazal Karim and Muhammad Awais, who on the day of granting bail, had intimidated the complainant’s father in the presence of the witnesses. All the accused persons made aerial firing and fled away from the crime scene. Muhammad Abbas and Sultan Ahmad came there, attended them and escorted them to the hospital. Umar Hayat and Imtiaz Umar succumbed to the injuries on the way to hospital.

Motive behind the occurrence was that Bashir Ahmad had falsely implicated the complainant’s father and a brother, namely Imtiaz Umar in the murder case of Hasnain son of Muhammad Manzoor. They were declared innocent in the said case. The families of the complainant and Bashir Ahmad had longstanding litigation.

4. Muhammad Aslam, SI (PW18) recorded the statement of the complainant in the hospital, prepared injury statements of injured Saif, Farooq, Ishfaq, Muhammad Asif, Mst. Nazia, Mst. Nadia and Mst. Rashida Farhat. He also prepared injury statements and inquest reports of deceased Umar Hayat and Imtiaz Umar and escorted their dead bodies to the mortuary. He recorded the statements of injured under Section 161 Cr.P.C. and proceeded to the place of occurrence, prepared rough site plan, secured blood stained earth from seven difference places including the place of occurrence. He secured seven crime empties of pistols, six empties of rifle and two empties of gun 12-bore. He arrested appellants Tanveer and Muhammad Awais on 03.10.2008. He took into possession the last worn clothes of the injured ladies on 09.10.2008. During investigation Tanveer Ahmad led to the recovery of rifle. He arrested appellants Amanullah, Muhammad Yaqoob, Shahid Yaqoob and Fakhar on 31.10.2008 and thereafter he was transferred.

Muhammad Aslam SI (PW-17) interrogated the accused persons and recovered respective fire arm weapons of offence from them. He arrested Naveed Ahmad, Muhammad Imran, Bashir Ahmad, Abdul Ghafffar and Yasir Yaqoob on 20.11.2008 and Naeem Imran, Abdul Sattar, Muhammad Abbas and Mushtaq on 24.11.2008. The aforesaid accused persons also got recovered respective weapons of offence during investigation. He recorded the statements of witnesses under Section 161, Cr.P.C. and got prepared report under Section 173, Cr.P.C.

5. Dr. Muhammad Ibrahim (CW-3) held autopsy on the dead body of deceased Imtiaz Umar on 01.10.2008 at about 11:30 a.m. and observed the following injuries,

No.1 A lacerated wound measuring 1 x 1 cm x DNP in left iliac fossa in its anterior part. The margins inverted and smoked.

No.2 A lacerated wound measuring 1 x 1 cm on lateral surface proximal part of right thigh. The margins were inverted and smoked.

No.3 A lacerated wound with everted margins measuring 1 x 1.5 cm on left buttock near cleft.

No.4 A lacerated wound measuring 1 x 1 cm on interior side middle part of left arm. The margins inverted smoked and wound communicating with injury No.5.

No.5 A lacerated wound measuring 1 x 1.5 cm with everted margins on posterior surface middle part of left arm. Left arm was deformed due to fracture of humorous bone on exploration of No.1 the projectile was found to damage left common iliac vessels and there was large hematoma.

The cause of death was due to injury No.1 causing damage to main vessels that led to the loss of large quantity of blood and caused hypovolemic shock and death. The probable duration between injuries and death was 31 minutes to one hour whereas between death and post mortem examination 6-9 hours.

He conducted post-mortem examination on the dead body of deceased Umer Hayat on the same day and observed following injuries.

No.1 A lacerated wound measuring 1 x 1 cm x DNP on back of chest in its middle part. 5 cm from vertebral column. The margins were inverted and smoked.

No.2 A lacerated wound measuring 1 x 1 cm x wound communicating with injury No.3 on back of right chest. 10 cm from vertebral column.

No.3 A lacerated wound with measuring 1 x 1.5 cm x wound probed to No.2. The margins were everted. The wound was just below right axilla.

No.4 A lacerated wound measuring 1 x 1.5 cm x DNP on left side of chest interiorly just below left clavicle bone. The margins were everted. On exploration of No.1 the projectile was found damage upper lobe of right lung. Aorta left lung and passed out through injury No.4. So, Injury Nos.1 and 2 were entry wound and injury Nos.3 and 4 were exit wounds.

No. 5 A lacerated wound measuring 1.5 x 6 cm x bone exposed on interior side of head in its middle part starting from hair line.

The cause of death was due to injury No.1 causing damage to lungs and aorta and by the loss of blood into both pleurae, which caused hypovolemic shock and death. The probable duration between injuries and death was between 15 to 30 minutes whereas between death and post mortem examination 6-9 hours.

He conducted medico-legal examination of injured Muhammad Saif Umar, Muhammad Farooq Umer, Muhammad Ishfaq and Muhammad Asif and observed two fire arm wounds (including an exit wound) on the person of Muhammad Saif Umar, six fire arm injuries on the person of Muhammad Farooq Umar, ten wounds on the person of Muhammad Ishfaq (four fire arm entry wounds, four exit wounds and two injuries with blunt object) and three injuries on the person of Muhammad Asif (two fire arm injuries including an exit and one injury with blunt weapon).

6. Dr. Bushra Tariq (CW-2) conducted medico-legal examination of injured Mst. Nazia Bibi and Mst. Rashida Bibi on the same day and observed four fire arm wounds on the body of Mst. Nazia Bibi and a lacerated wound on the person of injured Mst. Rashida Bibi having been caused by blunt weapon. The duration of injuries was within eight hours.

7. At the commencement of the trial, the learned trial Court framed a charge against the appellants and their co-accused Bashir Ahmad, Muhammad Yaqoob, Abdul Sattar, Amanullah, Muhammad Abbas, Shahid Yaqoob, Fakhar Yaqoob, Fazal Karim and Muhammad Awais to which they pleaded not guilty and claimed to be tried.

Co-accused Shabbir Ahmad and Saeed Ahmad were at large and they were proceeded against under Section 512 Cr.P.C.

8. The prosecution had produced 19-witnesses besides the reports of Chemical Examiner (Ex.PEE to Ex.PLL) and the reports of Punjab Forensic Science Agency (Ex.PMM and Ex.PNN). The appellants and their co-accused, in their statements recorded under Section 342 Cr.P.C. had denied and controverted all the allegations of fact levelled against them, they did not opt to make statements under Section 340(2), Cr.P.C. nor produce any witness in their defence, however appellant Qaisar Yaqoob had examined Riaz Hussain DW-1 in his defence.

9. Learned trial Court, upon conclusion of the trial had acquitted co-accused Bashir Ahmad, Muhammad Yaqoob, Abdul Sattar, Amanullah, Muhammad Abbas, Shahid Yaqoob Fakhar Yaqoob, Fazal Karim and Muhammad Awais whereas convicted and sentenced the appellants as stated above, hence the aforementioned criminal appeals as well as Murder Reference and the connected criminal revision.

10. Learned counsel for the appellants have submitted in unison that the appellants are quite innocent having nothing to do with the alleged occurrence; that the crime report was shown to have been registered with promptitude but it was not so as is evident from the deposition of the medical officer stating that he conducted post mortem examination at about 3:30 p.m. prior to the registration of case; that one of the deceased was a practicing lawyer and the time had been consumed by the local police after getting legal consultation of his colleagues; that the statement of Muhammad Aslam SI/IO contradicts the deposition of Muhammad Saif Umar (PW-1) with regard to the time of registration of the case; that the mode and manner of the occurrence as ascribed by the complainant by counting each and every fire shot attributing to each accused one-by-one with exact location is un-usual and beyond imagination; that the injuries attributed to appellants Imran, Yasir Yaqoob, Abdul Ghaffar and Mushtaq on the person of injured Farooq Umar were subsequently found pallet injuries; that the injury attributed to appellant Mushtaq was found to be not involved in this occurrence during investigation twice; that the question with regard to the injury attributed to the said appellant was not put to him in his statement recorded under Section 342 Cr.P.C. and as such he cannot be held responsible to that extent as well; that it was the best example of spreading the net wide in order to implicate maximum members of a family in this case of heinous offence; that four injured witnesses have been withheld by the prosecution, who in fact were not supporting the prosecution version; that the injured witnesses produced by the prosecution could not prove their own injuries, then how could they be believed to the extent of injuries caused to other persons; that some of the accused persons, having identical role, have already been acquitted of the charge by disbelieving the prosecution evidence to their extent, which cannot be equally believed to the extent of present appellants; that the motive remained a shrouded mystery; that the recovery of weapons of offence was inconsequential and the medical evidence lends no support to the ocular account; that the prosecution has miserably failed to prove the charge against the appellants beyond shadow of reasonable doubt and the learned trial court, while passing the impugned judgment of the appellants’ conviction, had erred in law and facts of the case, which warrants interference by this court.

11. Conversely, learned Deputy Prosecutor General appearing for the State assisted by learned counsel for the complainant has submitted that the matter was promptly reported to the police within the shortest possible time, which excludes the possibility of consultation prior to the registration of case and also rules out the possibility of non-presence of the eye-witnesses at the venue of occurrence; that it was a day light occurrence and there was no question of misidentification of the assailants; that all the eye-witnesses being injured witnesses had made quite natural and consistent statements with regard to the mode and manner of the occurrence and the specific role of causing fire arm injuries by the appellants to both the deceased as well as other injured witnesses; that non-production of four injured witnesses is immaterial as it is always up to the prosecution to produce the witnesses of its own choice; that there was no occasion for the eye-witnesses to falsely implicate the appellants while letting off the real culprits; that it was the occasion of Eid and the entire family of the accused persons was in a position to conspired the occurrence in issue; that the motive part of the occurrence has fully been proved rather admitted by the defence in so many words; that the recovery of weapon of offence from some of the appellants have been found wedded with the crime empties and the reports of Punjab Forensic Science Agency have been received with positive result; that the medical evidence lends full support to the ocular account; that the impugned judgment entailing the conviction and sentence of the appellants does not warrant interference by this court.

12. We have heard learned counsel for the appellants, learned Deputy Prosecutor General appearing for the State assisted by learned counsel for the complainant and perused the record with their able assistance.

13. This unfortunate incident had taken place on the occasion of Eid-ul-Fitr on 01.10.2008 at 10:00 a.m., which was reported to the police on the same day at 12:00 noon in Tehsil Headquarters Hospital, Yazman and in consequence thereof, the crime report was chalked out at 12:15 p.m. The prosecution has made an abortive attempt to make it a case of promptitude F.I.R., which stood contradicted by the complainant himself deposing that they started journey travelling from Tehsil Headquarters Hospital, Yazman to Bahawalpur Victoria Hospital, Bahawalpur at 11:30 a.m. and reached there at 12:00 noon in Emergency Ward. He further deposed that the application for registration of the case was drafted by one Sajid Nasir in presence of 8-10 persons including 4/5 Advocates. Furthermore, Dr. Muhammad Ibrahim (CW-3), who had held autopsy on the dead bodies of the deceased at 3:00 p.m. had categorically deposed in his cross-examination that the postmortem examination was conducted prior to the registration of the FIR. In such state of affairs, we have a reason to believe that the FIR was lodged with due deliberation, fabrication and legal consultation by stop-ping the daily diary of the police station.

14. The prosecution’s mainstay was on the testimony of Muhammad Saif Umar (PW-1/complainant), Farooq Umar (PW-2), real son and brother of the deceased Umar Hayat and Imtiaz Umar Advocate and Mst. Nadia Parveen (PW-3), paternal cousin of the deceased Imtiaz Umar. The complainant reiterated the contents of the crime report in his deposition before the learned trial Court deposing that on the fateful day at 10:00 a.m. the appellants along with eleven others having respective firearm weapons launched murderous assault upon the complainant party and caused firearm injures to Umar Hayat, Imtiaz Umar, Muhammad Saif Umar, Farooq Umar, Ashfaq Umar, Muhammad Asif, Mst. Nadia, Mst. Rashida and Mst. Sadia. Out of the said injured witnesses, Umar Hayat and Imatiaz Umar Advocate succumbed to the injuries. The complainant attributed the role of causing firearm injuries to each appellant in the following manner:–

i) Bashir Ahmad, Aman Ullah and Muhammad Abbas raised Lalkara to teach a lesson to Master Umar Hayat and his sons for opposing them,

ii) Noman made a fire shot, which landed at the left side of belly,

iii) the fire shot of Qaisar Yaqoob hit at the right thigh,

iv) the fire shot of Naeem at the left arm of Imtiaz Umar, Advocate (deceased).

v) Shabbir Ahmad made a fire shot, which landed at the waist,

vi) the fire shot of Muhammad Naveed hit at the same place and,

vii) the fire shot of Muhammad Saeed passed on by colliding with the head of Umar Hayat (deceased).

viii) Abdul Sattar made a fire shot, which landed at the right side of belly,

ix) the fire shot of Tanveer Ahmad hit at the left elbow,

x) the fire shot of Muhammad Yaqoob hit at the left buttock of Ishfaq Umar (not produced).

xi) Imranullah made a fire shot, which hit at the neck,

xii) the fire shot of Abdul Ghaffar hit at the right side of belly,

xiii) the fire shot of Yasir Yaqoob hit at the left shoulder and

xiv) the fire shot of Muhammad Mushtaq hit at the right thigh of Farooq Umar (PW-2).

xv) Tanveer Ahmad made a fire shot, which hit at the ankle of right foot of complainant Muhammad Saif Umar (PW-1).

xvi) Muhammad Saeed repeated the fire shot, which landed at the neck of injured Muhammad Asif (not produced).

xvii) Bashir Ahmad made a fire shot, which landed at both legs, waist, left finer and arm of Nazia Parveen (PW-3).

xviii) Amanullah made a dire shot, which hit at the arm and waist of Sadia (not produced).

xix) The fire shot of Muhammad Abbas hit at the waist of Rashida Farhat (not produced).

xx) This occurrence was the result of behind the scene abetment provided by Fazal Karim and Muhammad Awais.

Muhammad Farooq Umar (PW-2) and Mst. Nazia Parveen (PW-3) made almost identical story but the testimony of all the aforesaid material witnesses stood contradicted with the medical evidence. The complainant had deposed that he sustained two injuries caused by appellant Tanveer Ahmed at his elbow and right ankle but as per medical certificate the injury at his left elbow was non-existent whereas the other injury at his right ankle went through and through was an exit wound. Muhammad Farooq Umar (PW-2) claimed that he sustained six injuries including two exit wounds during the occurrence at the hands of appellants Imranullah, Yasir Yaqoob, Abdul Ghaffar and Muhammad Mushtaq with their respective 30-bore pistols but his medico-legal certificate shows that the said injuries were caused through gun 12-bore as the same were pellet injuries with the depth of 1 x 1 cm. Mst. Nazia Parveen (PW-3) had sustained four firearm injuries with blackening and burning around the wounds caused by Bashir Ahmed, who has already been acquitted of the charge by the learned trial Court. Likewise, co-accused Fakhar Abbas was attributed the role of causing firearm injury with his gun 12-bore at the back of Mst. Rashida but her medico-legal certificate shows that the same was caused by some blunt weapon. Appellant Imran was attributed the role of causing firearm injury at the neck of Farooq Umar (PW-2) but the said injury was non-existent.

15. The prosecution had shown the presence of co-accused Muhammad Yaqoob, Shahid and Mukhtiar Ahmed equipped with lethal weapons at the venue of occurrence at the relevant time but no role was assigned to them except their physical presence. Learned trial Court has acquitted nine co-accused having somewhat identical role as attributed to the appellants. In such scenario, when more than 50% of the nominated accused persons have already been acquitted of the charge while disbelieving the prosecution evidence including the injured witnesses especially having into account the variation in number and nature of the injuries being non-existent, the same set of witnesses cannot be believed to the extent of present appellants to maintain the conviction and sentence under capital charge. Co-accused have already been acquitted of the charge and no appeal against their acquittal has been preferred by the complainant or the State, which shows their satisfaction over the innocence of acquitted accused. In the circumstances, their testimony cannot be equally believed to the extent of present appellants. Reliance is placed on cases titled “Shahbaz v. The State” (2016 SCMR 1763), “Tariq v. The State and others” (2017 SCMR 1672) and “Imtiaz alias Taj v. The State and others” (2018 SCMR 344). A ready reference may be made to the last one wherein it has been held as under:–

“The law is settled that if the eye-witnesses have been disbelieved against some accused persons attributed effective roles then the same eye-witnesses cannot be believed against another accused person attributed a similar role unless such eye-witness receive independent corroboration qua the other accused person—–“

16. We have observed that when the injured witnesses remained fail to prove the injuries upon their own person, how could they be believed to the extent of injuries on the person of the deceased and other injured witnesses. Through the stamp of injuries on the person of injured witnesses is though sufficient to establish their presence at the place of occurrence at the relevant time yet their narration regarding number of accused persons carrying specific firearm weapons, firing of each individual and the injuries sustained by the injured witnesses with exact locale and seat of injuries, is beyond human control. The person who himself had sustained firearm injuries should have not been in a position to count each and every independent injury caused by two dozen of assailants at the same time and count each fire shot one by one like visualizing the scene in slow-motion because the velocity of bullet cannot be calculated with exactitude rather it becomes invisible.

17. Another important issue relevant to the discussion is that the locale and seat of injuries sustained by the injured witnesses as well as both the deceased show that the same had been caused from one direction having same measurement possibly caused by one or two persons. Dr. Bushra Tariq (CW-12) conducted medico-legal examination of injured Mst. Nazia Bibi, Mst. Sadia and Mst. Rashida and observed almost same size of injuries with same direction as mentioned in the medico-legal certificates of the remaining injured witnesses, which clearly indicates that the prosecution version qua role assigned to the accused persons of causing one shot each, is totally vanished.

18. We have observed that the instant case is the best example of spreading the net wide for implicating maximum male members of the opponent’s families in order to deter them from pursuing this case. The appellants’ co-accused, namely, Bashir Ahmed (since acquitted) along with his six real sons i.e. Abdul Ghaffar, Shabbir, Naeem Ahmed, Tanveer Ahmed, Abdul Sattar and Saeed Ahmed had been arrayed as accused. Likewise, co-accused Muhammad Yaqoob is father of three accused, namely, Qaiser Yaqoob, Yasir Yaqoob and Fakhar Yaqoob. Co-accused Aman Ullah was implicated with his two real sons, namely, Nomanullah and Imranullah along with two other real brothers inter-se, namely, Abbas and Mushtaq. All the accused persons belong to two families and none of their male members was left rather a few of them were entangled in this case by merely showing their physical presence with firearm weapons playing no overt act during the occurrence.

19. We have further observed that during investigation Muhammad Aslam, S.I. (PW-7) reached at a definite conclusion with regard to the innocence of ten of the accused persons i.e. Muhammad Aslam, Bashir Ahmed, Yaqoob, Shahid Yaqoob, Abdul Sattar, Imranullah, Fakhar Yaqoob, Yasir Yaqoob, Mushtaq Ahmed and Amanullah. However, accused Abbas, Abdul Sattar, Fazal Karim and Nomanullah were found available at the spot empty handed. The complainant had stated the role of each individual in the crime report and tried to spread the net wide, which created confusion that who made the fire shot by whom and hitting at which part of the body of the deceased or the injured witnesses. No one was in a position with any degree of certainty to bring on record true facts of the case. The prosecution story as put-up before the learned trial Court is hardly believable. Even otherwise, when a single drop of dirt is mixed and dissolved in tank of bulk clean water, it makes the whole dirty. In the same manner, when some falsehood is mixed with truth, the same makes the truth carrying the possibility of falsehood as a whole.

20. Learned counsel for the appellants have focused that injured Muhammad Saif Umar got recorded his statement under Section 161, Cr.P.C. on 21.10.2008 after twenty days of the alleged occurrence, which was nothing but an afterthought story and is not worth reliance. We have observed that though Muhammad Saif Umar had sustained injuries during the occurrence yet it is nowhere mentioned that he was not in a position to make his statement. Dr. Muhammad Ibrahim (CW-3), who had conducted his medico-legal examination, clearly mentioned that he was fully conscious, oriented with time and place having normal pulse at the time of his examination. The said injured witness remained mum for 20-days and got recorded his statement under Section 161, Cr.P.C. before the police with considerable delay, which by itself renders his authenticity to be legally not acceptable in view of the dictum laid down in case titled “Muhammad Asif v. The State” (2017 SCMR 486) wherein it has been held as under:–

“There is a long line of authorities/precedents of this court and the High Courts 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.”

21. Four of the injured witnesses having stamp of firearm injuries on their persons sustained at the venue of occurrence, did not appear in support of prosecution version rather they were given up by the prosecution being unnecessary. No-doubt, the prosecution is always at liberty to produce the witness of its own choice but the aforesaid injured witnesses should have appeared before the Court, at least, in order to prove injuries on their own person. The only possible inference under Article 129(g) of Qanun-e-Shahadat Order, 1984 is that had they been produced before the learned trial Court, they would have not supported the prosecution version.

22. The motive as set up by the prosecution was that both the deceased were falsely involved in a case relating to the murder of one Hasnain son of Manzoor wherein they had been declared innocent during investigation. Many a questions were put to the eye-witnesses during cross-examination by the defence in this regard and even the appellants, in their statements recorded under Section 342, Cr.P.C., have not denied the fact that the parties were indulged in murderous enmity. Such enmity can be used by either side and the motive being double-edged weapon may possibly be the base of false implication of entire male family members of the opponents’ party.

23. The firearm weapons recovered at the instance of some of the appellants were sent to the office of Punjab Forensic Science Agency for its comparison with the crime empties claimed to have been secured from the place of occurrence after their arrest. Though the reports of aforesaid office have been received with positive result yet the possibility cannot be ruled out of consideration that the same had been managed and maneuvered by making fire shots from the weapons recovered at the instance of the appellants in order to get favourable report of Ballistic Expert. The recovery of respective firearm weapons, in the circumstances, remains inconsequential. Anyhow, the dispatch of crime empties to the office of Punjab Forensic Science Agency after arrest of the appellants renders it to be legally unacceptable and, thus, the recovery of weapon of offence from the appellant remained inconsequential. Reliance is placed on case titled “Nazeer Ahmed v. The State” (2016 SCMR 1628) wherein it has been held as under:–

“the crime-empty secured from the place of occurrence was sent to the office of Forensic Science Agency after recovery of the gun rendering such recovery to be legally unacceptable—-“

24. The appellants had mad simple denial in their statements recorded under Section 342, Cr.P.C. and did not take any specific defence, which need not to be discussed in minute detail.

25. Having looked into the entire evidence available on record, we have no reason to disbelieve that the prosecution has miserably failed to bring home the guilt of the appellants to the hilt. The witnesses of ocular account, though had a stamp of injuries on their persons yet they remained fail to prove their truthfulness during trial, which fact is sufficient to discard their testimony to the extent of injuries on the persons of both the deceased as well as other injured eye-witnesses. The complainant took sufficient time in lodging the crime report after going through the reports of postmortem examination as well as medico-legal reports of the injured witnesses and also after getting legal assistance from the Advocates gathered in the hospital due to the murder of their colleague. The postmortem examination was conducted prior to the registration of case and the whole prosecution building was constructed afterwards in order to manage the eye-witnesses as well as the prosecution story. It was a case of spreading the net wide on maximum male members of their opponents’ families by assigning the role of one fire shot to each accused and even the role of mere presence being equipped with firearm weapons. The locale, size and seat of injuries on the persons of both the deceased as well as the injured witnesses itself indicate that the same had been caused by a single person with single firearm weapon. The counting of injuries of nineteen accused persons at the same time, when the complainant and the injured witnesses themselves had received injuries, was impossible and beyond the imagination of human control. Nine of the nominated accused, and some of them had identical role to that of the appellants, have already been acquitted of the charge by the learned trial Court by disbelieving the prosecution evidence to their extent whereas the majority of accused persons were declared innocent in consecutive investigations. The medical evidence lends no support to the ocular account. The motive, being double-edged weapons, can be used by either side. The recovery of weapons of offence remained inconsequential. Last but not least, it is an axiomatic principle of criminal administration of justice that each and every case is to be decided on totality of impressions gathered from the facts and circumstances of the case. The case in hand is the best example of gathering such impressions. A reference may be made to case titled “Nadeem Ramzan v. The State” (2018 SCMR 149) wherein it has been held as under:–

“While discussing the motive part of the case the High Court had observed that both the eye-witnesses had stated about the alleged motive and they had not been cross-examined by the defence on that aspect of the case and, thus, the alleged motive stood proved. This approach adopted by the High Court has been found by us to be fallacious inasmuch as it had been clarified by this Court in the case of S. Mahmood Alam Shah v. The State (PLD 1987 250) that the principle that a fact would be deem to be proved if the witness stating such fact had not been cross-examined regarding the same was a principle applicable to civil cases and not to criminal cases. It was held that a criminal case is to be decided on the basis of totality of impressions gathered from the circumstances of the case and not on the narrow ground of cross-examination or otherwise of a witness on a particular fact stated by him. A similar view had already been expressed by this Court in the case of State v. Rab Nawaz and another (PLD 1974 SC 87) wherein it had been observed that a criminal case is to be decided on the basis of totality of circumstances and not on the basis of a single element.”

From the aforesaid discussion, we have reached at an irresistible conclusion that the prosecution has miserably failed to prove the charge against the appellants beyond shadow of reasonable doubt and the benefit of doubt, even slightest, always favours the accused.

26. The nutshell of above discussion is that all the aforementioned criminal appeals filed by appellants Nomanullah, Abdul Ghaffar, Naeem Imran, Tanveer Ahmad, Naveed Ahmed, Qaisar Yaqoob, Imranullah, Yasir Yaqoob and Muhammad Mushtaq are allowed, their conviction and sentence are set aside and they are acquitted of the charge by giving the benefit of doubt to them. Appellant Nomanullah is directed to be released forthwith from jail, if not required to be detained in connection with any other case. Appellants Yasir Yaqoob, Qaisar Yaqoob, Imran Ullah, Abdul Ghaffar, Naeem Imran, Tanveer Ahmad, Muhammad Mushtaq and Naveed Ahmad are present on bail, their bail as well as sureties are discharged from the respective liabilities.

27. Murder Reference No.65 of 2012 is answered in NEGATIVE and the Death Sentence awarded to appellant Nouman Ullah is not confirmed.

28. Criminal Revision No.217 of 2012 preferred by complainant Muhammad Saif Umar seeking enhancement of sentence of respondents Naeem Imran, Naveed Ahmad, Qaisar Yaqoob, Yasir Yaqoob, Tanveer Ahmad, Abdul Ghaffar, Imran Ullah and Muhammad Mushtaq is without any merit, the same stands dismissed in limine.

JK/N-23/L Appeals allowed.

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