' DR. RANA MUHAMMAD SHAMIM, J.---The appellants challenged the impugned judgment, dated 3- 12-2005 passed by learned Additional Sessions Judge Moro, whereby appellants were convicted and awarded death sentences and ordered that they be hanged by neck till death under section 302, 34, P.P.C. While co-accused Abdul Rahman alias Golo was acquitted. The Criminal Reference No.4 of 2006 vide Confirmation Case No. 2 of 2006 for confirmation death sentence awarded to the appellants was received from learned Trial Court.
2. Brief facts of the prosecution case given rise to the present appeal are that on 20-8-1998 complainant Ghulam Hussain lodged F.I.R. Alleging therein that Imran, aged about 17 years, student of 10th class was his son. There is a playground near the village where boys used to play. On the day of incident at bout 5-00 p.m. One Illahi Bux alias Shahan Lund came and used to take Imran to playground for playing. Hashim Lund exchanged hot words with Imran that as to why Illahi Bux alias Shahan left for playground. The complainant also sent to the playground where he saw Ghulam Nabi Lund was standing and his son Imran, Illahi Bux alias Shahan Lund, Zulfiqar Lund and others were playing cricket, at about 6-00 p.m. Hashim Lund, Abdul Rahman alias Golo, and Abdullah alias Papoo Lund, all armed with Lathies came there. Abdullah alias Papoo abused and called names of his son Imran and said that he has insulted their cousin Hashim, Abdullah alias Baboo in presence of complainant and witnesses caused lathi injury at the right side temporal region of Imran.
Accused Hashim caused lath injury on the parietal region of Imran. Accused Abdul Rahman alias Golo also caused lath injury at the backside of his head, whereupon Imran fell down raising cries.
Accused Abdul Rahman also caused lath injuries at the other parts of the body of Imran. The other accused also caused lath injury to P.W. Illahi Bux alias Shahan. Thereafter, complainant and Ghulam Nabi challenged the accused persons whereupon they fled away towards their houses along with lathier. The complainant and witnesses saw Imran was having injures on his person and bleeding. Illahi Bux alias Shahan had also received injuries.. Complainant took bdth the injured to police station where he lodged F.I.R. Police issued him a letter to the medical officer for treatment and certificate.
3. Injured Imran was taken to Taluka Hospital Moro where he examined and being in serious condition was referred to PMCH Nawabshah for further treatment, where he succumbed to injuries on 21-8-1998, as such offence was converted into 302, P.P.C.
4. The charge was framed against the appellants and acquitted accused, to which they pleaded not guilty and claimed to be tried.
5. The prosecution in support of its case examined complainant Ghulam Hussain at Exh.6, who produced copy of F.I.R. At Exh.6/A, P.W.Illahi Bakhsh at Exh.7, P.W./mashir 'Salamullah at Exh. 8, who produced mashirnamas of injuries, Danishnama, seeing the dead-body, place of wardhat, recovery of clothes of deceased Imran, arrest of accused and recovery of lathies at Exh.8/A to 8/G respectively, P.W. Ghulam Nabi at Exh.9, P.W. Dr. Ghulam Mustafa at Exh.10, who produced medical certificate at Exh.10/A, P.W. Dr. Ghulam Shabir Chahwan at Exh.11, who produced, autopsy report at Exh.11/A, P.W. Investigating Officer Ayaz Hussain Kalhoro at Exh.12, who produced Danishnama, receipt of dead-body and letter to Chemical Examiner at Exhs.12/A to 12/C respectively and then the prosecution closed its side.
6. The statements of appellants and acquitted accused were recorded under section 342, Cr.P.C., wherein they pleaded their innocence and false implication due to enmity. They neither examined themselves on oath nor led any evidence in their defence.
7. After concluding the trial and hearing the learned Advocates for the parties, co-accused Abdul Rahman was acquitted by giving him benefit of doubt whereas appellants were awarded death penalty and ordered that they be hanged by neck till death, as the offence under sections 302, 34, P.P.C. Was proved against them for intentionally committing murder of deceased Imran during playing cricket in broad daylight.
8. Mr. Syed Mushtaque Hussain Shah, learned Advocate for the appellants submits that according to the ocular evidence of the prosecution witnesses, namely, complainant Ghulam Hussain, eyewitnesses Illahi Bakhsh and Ghulam Nabi though P.W. Illahi Bakhsh shown injured was not referred to hospital for treatment. As per medical report submitted by P.Ws. Dr. Ghulam Mustafa who has examined injured Imran only and thereafter P.W. Dr. Ghulam Shabir who conducted postmortem of deceased Imran in respect of injuries are contradictory to each other. In their depositions, according to P.W. Dr. Ghulam Mustafa, injured Imran (deceased) sustained one lathi injury whereas according to P.W. Pr. Ghulam Shabir, there are five lathi blows inflicted upon deceased Imran which caused his death; that the medical evidence is not corroborated by ocular evidence i.e. The versions of the complainant and eye-witnesses; that deceased allegedly injured by inflicting lathi blows but the recovery of Lathies was effected after three days of the incident; that the motive set-up by complainant was that one hour before the incident, there was exchange of altercation and abuses between Hashim and P.W.2 Illahi Bux in order to take revenge to this disgrace, appellants caused lathi below injuries to Imran with the common intention of acquitted accused Hashim. The statements of complainant and eye-witnesses are contradictory in nature as according to P.W. Illahi Bux when he raised cries which attracted complainant and P.W. Ghulam Nabi whereas complainant and P.W. Ghulam Nabi both claimed eye-witnesses of the incident and deposed that they were present prior to the incident which creates serious doubt about their presence at the place of incident. On the other hand, P.W. Ghulam Nabi in his deposition has not discussed the presence of complainant at the place of wardhat at the time of incident. Admittedly the statement, of P.W. Ghulam Nabi under S.161, Cr.P.C. Was recorded after five days of the incident without any explanation offered by the Investigating Officer; that P.W. Salamullah deposed before the trial Court in his examinationin-chief that on 21-8-1998 he was made mashir of injuries on the person of injured Imran (who later on succumbed to the injuries) whereas occurrence took place on 20-8-1998 whereas mashirnama of injuries was prepared on 20-8-1998 which also creates serious doubt that he was not present at the time when mashirnama of injuries was prepared; that P.W. Salmaullah was also mashir of recovery of blood-stained earth and bloodstained clothes, mashir of arrest, mashir of recovery of lathies which lost sanctity as the same were not made in his presence; that admittedly blood-stained clothes of deceased were not handed over by the doctor vho conducted postmortem, to the police at hospital and the police has tot sealed the same at the spot i.e. In the hospital. Admittedly, bloodstained clothes worn by deceased were handed over by complainant to police at police station and thereafter at police station mashirnama of recovery of blood-stained clothes was prepared which makes the recovery and preparation of mashirnama doubtful; that no prosecution witnesses or mashir of recovery of lathies have deposed in the Court about sealing of blood-stained lathies at the time of recovery on the pointation of accused. There is no evidence on record that the lathies brought in sealed condition in the Court and/or same were unsealed and after showing the same to witnesses, same were re-sealed; that there is no evidence on record that the case property/lathies were even produced and shown to the eye- witnesses during trial; that no chemical report in respect of blood-stained earth and .Lathies were produced in the Court to ascertain as to whether blood found on the earth and lathies was of human blood; that the case property viz. Lathies were never produced and shown to complainant and eye-witnesses. It is a matter of record that lathies as case property was produced only once in the trial Court when the Investigating Officer was examined who deposed that the property containing lathies produced in the Court was in sealed condition; that the seal was never opened and the case property was not shown and identified by prosecution witnesses and even by the Investigating Officer; that as per prosecution at the time of sealing of lathies which have not been shown that as to whether the same were of blood-stained; that in the impugned judgment the learned trial Court while deciding the points of determination it has not been discussed about the cross-examination of any of the witnesses and recorded conviction on the basis of only examination-in-chief of the prosecution witnesses which caused grave injustice. Had the learned trial Court discussed cross-examination of the prosecution witnesses and material contradictions on record thereto, instead of recording conviction, the appellants would have been acquitted; that co-accused Abdul Rahman has been acquitted on the same set of allegations and same set of evidence and on same circumstances, whereas the appellants were convicted on the same set of allegations, evidence and circumstances, which is against the principle of equity, consistency and natural justice; that the learned trial Court in impugned judgment has also not discussed about the injury caused to P.W. Illahi Bakhsh to ascertain who caused him injury, number of injuries, on what part of body same was caused/inflicted, as to whether he was referred to Medico-legal Officer and report thereto, although charge was framed about the injuries caused to P.W. Illahi Bux, but about the said injury, impugned judgment is completely silent and on such charge neither appellants were acquitted nor convicted on the said charge; that there is glaring contradiction about timings of lodging of F.I.R. At 7-00 p.m. And taking injured Imran to hospital at 7-00 p.m. According to the Investigating Officer within 10/15 minutes the dead-body in the same ambulance was sent to the hospital after lodging of the F.I.R. At 7-00 p.m. After completing legal formalities and referred 'injured Imran to hospital; that the time of registration of the F.I.R. Could not be same as of taking injured to hospital and examining his injuries by P.W. Dr. Ghulam Mustafa; that prosecution witnesses though available were not examined soon after the incident and their statements under section 161,. Cr.P.C. Were recorded after delay of 1 and 5 days respectively without giving any plausible explanation. The eye-witnesses Zulfiqar Ali though shown as P.W. In the charge-sheet but was not examined during trial. Although the eye-witnesses Shah Nawaz, Mukhtair, Miandad, Wahid Bakhsh, Babar, Fareed, Anwar, Zohaib and Naveed admittedly were present at the place of incident who witnessed the incident yet they were not examined by the Investigating Officer nor produced them as prosecution witnesses during trial; that complainant in his evidence deposed that quarrel took place between Hashim and Imran which contradicts the statement of P.W. Illahi Bux. There is no evidence on record to show that the Lathies were sealed in presence of mashirs and were blood-stained. P.W. Illahi Bux examination-in-chief was not conducted by the prosecutor though present and examination conducted by the complainant Advocate which is violative of section 493, Cr.P.C., as according to law, the proceedings are to be conducted by the public prosecutor not by the complainant Advocate; that in the statements of appellants recorded under section 342, Cr.P.C., no question regarding injuries on the person of P.W. Illahi Bux was put by the Court; that no question from the appellant was put by the Court regarding medical reports that come on the record; that no question was asked from the appellants by the trial Court about the report of Expert/Chemical Examiner as to whether the blood-stained earth was collected from the place of incident; that no question was asked by the trial Court from the appellants about blood-stained clothes worn by injured/deceased; that no question was asked from the appellants by the trial Court about the motive of the appellants; that no question was asked by the Court from the appellants about recovery of lathies on their pointation and the same were sealed at the spot; that no question was asked by the trial Court from the appellants about blood-stained lathies as to whether same were sent to Chemical Examiner to ascertain as to whether blood-stained with lathies was of human blood and no such report was shown to the appellants; that admittedly neither case property was produced in the Court nor it was shown and identified by the witnesses nor exhibited and marked by the Court during examination-in-chief of any of the witnesses.
9. He submits that the prosecution has miserably failed to prove its case beyond reasonable doubt and conviction awarded to the appellants can not be sustained. He also submits that one tainted piece of evidence cannot corroborate like nature tainted evidence. Since no common intention was proved and in presence of material contradictions and on the same set of allegations and evidence, if co-accused is acquitted, the appellants on the same set of allegations and evidence cannot be convicted. The impugned judgment is liable to be set aside and appellants be acquitted in the circumstances.
10. In support of his submissions, he relies upon cases of Imran Ashraf and others v. The State (2001 SCMR 424); Mehrban v. Abdul Hameed alias Majeed Hameedullah and others (PLD 1983 SC 117), Paryai and another v. The State (1978 PCr.LJ 380); Riaz Ahmed v. The State (1986 SCMR 1460); Allah Wadhayo and another v. The State (2001 SCMR 25); Munir Ahmed alias Munir v. The State 2001 SCMR 56; Gul Muhammad alias Guloo v. The State 2004 YLR 216; Rehmatullah v. Muhammad Iqbal and others (2006 SCMR 1517); Attaullah alias Qasim v. The State (PLD 2006 Karachi 206); Miran Bux v. Niaz and others (1975 SCMR 337); Muhammad Aslam and others v. The State (1988 SCMR 940); Syed Saeed Muhammad Shah and another v. The State (1993 SCMR 550); Ashiq Hussain v. The State 1993 SCMR 417; State of Islamic Republic of Pakistan through DAG for Pakistan v. Kenneth Marshal and 2 others (2005 SCMR 594); Muhammad Sharif and others v. The State (1983 PCr.LJ 1067), Khairuddin and 2 others v. The State (1974 PCr.LJ 219); Budho v. The State (1973 PCr.LJ 395) and Iqbal and another v. The State (1985 PCr.LJ 286).
11. Learned Assistant Advocate General supported the impugned judgment but has not controverted the submissions of the learned Advocate for the appellants.
12. We have heard learned Advocate for the appellants, learned Assistant Advocate-General for the State and perused the material available on record and gone through the evidence and case- laws. After going through the depositions of the complainant and eye-witnesses, medical evidence which is lacking in the instant case, found that the case of the prosecution is full of contradictions and created serious doubts thereto as discussed above. Admittedly, no case property was exhibited in the Court, shown to the witnesses for identification of the same was not of much helpful to the prosecution.
13. To record conviction, there must be a legal evidence available on record. The crime is to be proved through cogent, tangible, direct and strong evidence in Court. The prosecution had to stand on its own legs and prove its case beyond reasonable doubt. The evidence brought on record of the case must be unambiguous and inspiring confidence. The Courts are bound by law to administer justice according to law and not according to their moral convictions, however, strong that may be..
14. In case of Imran Ashraf v. The State (Supra), the Hon'ble Apex Court was pleased to hold where no plausible explanation is offered by the prosecution for not recording the statements under section 161, Cr P.C. Of eye-witnesses immediately after the registration of the case, then the evidence of such witnesses becomes incredible. It was further held that the Court in administration of justice is duty bound to exhaust the evidence available on record and if the material contradictions are found or doubt is created benefit of the same will go to the defence instead of prosecution. The ocular testimony suffers from material discrepancies in above case and same is not admittedly corroborated by medical evidence. In case of Syed Saeed Muhammad Shah and another. v. The State (supra), it was held that if the statement under section 161, Cr.P.C. Recorded by the police after delay and without explanation, are to be ruled out of consideration. In case of Miran Bux v. Niaz and others (supra) the Hon'ble Apex Court held it is not necessary for accused to set up any case in his defence. It is sufficient for him to manage to cast doubt in the prosecution case and if he succeeds, the benefit of such doubt must go to him not to the prosecution.
15. In case of Ashiq Hussain v. The State (supra), the larger Bench of Hon'ble Apex Court was pleased to hold that the prosecution must prove its case beyond doubt. This duty does not change or vary in case in which any defence plea is taken. The burden is on prosecution to prove its case beyond reasonable doubt and in the instant case quality of evidence led by the prosecution was not sufficient to sustain conviction of the appellants as the witnesses not found reliable and confidence-inspiring.
16. In case of Muhammad Aslam and others v. The State (supra), the large Bench of Apex Court has held that if one or more accused are acquitted, the other co-accused on the same set of allegations and same evidence cannot be convicted by drawing distinction. In case of Paryal and others (supra), the Division Bench of this Court has held that we are unable to agree about common intention that on whose hatchet blow, deceased sustained injuries. Subsequently, he succumbed to'said injuries and if same allegations and same evidence is against the appellants they are equally liable to be acquitted.
17. In case of Munir Ahmed alias Muni (supra) the Hon'ble Apex Court has observed that conviction cannot be based where an incriminating piece of evidence is not put to an accused during recording of their statements under section 342, Cr.P.C. Same could not be considered as evidence against them. In criminal law if an incriminating piece of evidence is not put to an accused and it has resulted in causing prejudice to the accused; same shall not be considered as evidence against them. In case of Islamic Republic of Pakistan through Deputy Attorney General of Pakistan v. Kenneth Marshal and 2 others (supra), the Hon'ble Apex Court was pleased to quash the proceedings on one of the ground that the prosecution miserably failed to produce and exhibit the case property though many opportunities were afforded by the trial Court. In such circumstances, it was rightly held by the Hon'ble High Court of Sindh that there was no possibility of the respondents being convicted and continuation of trial against them would be an abuse of process of the Court. The partial quashment of the proceedings in the learned trial Court was upheld. In case of Noorul Hassan v. The State (supra), this Court set aside the conviction as the case property was not exhibited in the Court and not identified by the witnesses. In case of Iqbal and others v. The State (supra) this Court set aside the conviction on one of the grounds that whole of the case property was not produced before the Court and only a part thereof was produced was not of much help to prosecution. In case of Abdul Sattar v. The State (supra), this Court set aside conviction on one of the grounds that goods seized were not produced before the trial Court. In case of Muhammad Sharif and others v. The State (supra) this Court set aside the conviction on the ground that case property was neither produced in Court nor identified by the witnesses in presence of accused. In case of Budho v. The State (supra), this Court held that the prosecution is duty bound to produce before the Court the crime property and mark it as an exhibit or articles as to afford assurance to the Court that in fact the crime property, said to 'have been recovered from the possession of the appellant; was in fact so recovered. In case of Court set aside the conviction by giving benefit of doubt to the appellants as the case property neither properly described nor produced in Court.
18. We do not feel to rely upon the eye-witnesses. We are also do not feel that the eye-witnesses were really present at.The spot because had it been so, such discrepancies, lapses and material contradictions would have not occurred as are specifically mentioned above. There is no corroborative evidence in this case available of satisfactory in nature to warrant findings of conviction. The recovery of lathies also becomes doubtful as about such recovery, witnesses who, were present there have not said so that the same were recovered and sealed at the spot. Further, so recovered crime lathies have not been proceeded and shown to the witnesses at the trial.
19. We observe that no explanation was offered by the prosecution why the blood-stained clothes of deceased was not seized at the time of postmortem in hospital and why the mashirnama was not prepared at the spot, how and why the blood-stained clothes came in the possession of complainant. The complainant after travelling couples of kilometers from hospital to police station, he handed over the said blood-stained clothes allegedly worn by the deceased Imran and the mashirnama was prepared at police station which creates serious doubt as there was possibility for manipulation.
20. Admittedly eye-witnesses present in the playground were not examined by the Investigating Officer and not produced them as prosecution witnesses during trial. The inference can be drawn that the incident had not taken place as set up by the complainant. It is not believable that in addition to the eye-witnesses shown in the case, 14/15 other peoples were also in the ground who witnesses the incident. As per own case of the prosecution have not been examined in trial, three accused persons have not been caught hold by them who were subsequently arrested after five days of the registration of F.I.R.
21. In view of the above findings of the Honourable Apex Court, we observe that in the instant case no convincing evidence is forthcoming to show that as to who committed the offence, and therefore, acquitted co-accused Abdul Rahman and the present appellant are also entitled to benefit of doubt oh the principle of equity.
22. The concept of benefit of doubt is deep-rooted. It is not necessary that there should be series of circumstances creating doubt are not required if defence is succeeded in putting dent and creating doubt in the prosecution case, the benefit of such doubt must go to the appellants. After considering the material on record, we are of the considered view that the prosecution has failed to prove its case beyond doubt against the appellants. The appellants cannot be convicted on the same set of allegations of common intention and on the same evidence on the basis of which co- accused Abdul Rahman was acquitted. The appellants are also entitled for the benefit of doubt which was extended to acquitted accused Abdul Rahman.
23. After considering the material available on the record we are of the considered view that the prosecution has failed to prove the case against the appellants beyond reasonable doubt, therefore, the appellants are entitled to the benefit of doubt as well, which was accordingly given to them while passing short order. The impugned judgment, dated 3-12-2005 of the learned trial Court was set aside and the Criminal Reference No.4 of 2006 vide Confirmation Case No.2 of 2006 was answered in negative.
24. Above are the reasons of our short order, dated 13-3-2008 by which we had allowed the appeal and answered the reference in negative.