Sardar Tariq Masood, J.--Altaf Hussain appellant was tried by the learned Addl. Sessions Judge, Multan in case FIR No,232 dated 12.6.2002 registered under Sections 302/324/34 PPC at Police Station Mumtazabad Multan for the murder of Shabbir Ahmad and for causing injuries to Mst.
Sajida Bibi. The learned trial Judge vide judgment dated 13.12.2003 convicted the appellant u/S. 302(b) PPC and sentenced him to death. He was further directed to pay Rs, 50,000/- as compensation u/S. 544-A Cr.P.C. to the legal heirs of the deceased. He was further convicted u/S. 324 PPC and was sentenced to 10 years R.I. and fine of Rs,20,000/- or default thereof to further undergo 2 months S.I.
The appellant has filed Crl. Appeal No, 915 of 2003 against his conviction and sentence whereas the learned trial Court has sent a reference (M.R.No, 42 of 2009) u/S. 374 Cr.P.C. for the confirmation of death sentence of the appellant or otherwise. The complainant has filed Crl. Revision No, 64 of 2004 for enhancement of compensation of the appellant. We propose to dispose of all these matters by this single judgment.
2. Brief facts of the case as disclosed in the FIR Ex.PC/1 by PW2 Muhammad Sharif complainant that on the night of 11.6.2002 at about 3.00 a.m. Mst. Hajran Bibi wife of Muhammad Ramzan alias Kala saw a person who was trying to open the main door. She called Shabbir Ahmad for help.
Shabbir awoke up and raised alarm, thereupon an unknown person sitting on the outer wall of the house armed with pistol .12 bore fired at Shabbir hitting at his abdomen and some of the pellets also landed at the right hand of Mst. Sajida Bibi wife of Shabbir. The persons present in the courtyard and the persons who was sitting on the outer wall fled away. According to him, there were four persons out of whom two were tall in height and two were of middle height. The said persons were obstructed by his brother PW.4 Mulazim Hussain. They also fired at him but he escaped. No motive was mentioned in FIR.
During trial it is asserted that motive behind occurrence was that Altaf Hussain appellant had committed a theft and stole away golden ornaments belonging to Shabbir. Thereupon a punchiat was convened to prove the innocence of Altaf Hussain appellant on the basis of oath. He denied to take oath, therefore, he developed a grudge against Shabbir Hussain deceased and committed the murder of Shabbir Ahmad.
3. After completion of investigation, challan was submitted against the accused person. Charge was framed, to which, he pleaded not guilty and claimed trial. In order to prove its case, prosecution examined as many as 13 PWs in all.
PW. 1 Haq Nawaz stated that during investigation police recovered empty of .12 bore gun in his presence from the place of occurrence and the police also collected blood-stained earth from the place of occurrence.
Muhammad Sharif PW-2 is the complainant of this case who supported his statement Exh.PC, and supplementary statement.
PW-3 Mst. Sajida Bibi, is the injured witness who supported the incident.
PW-4 Mulazim Hussain stated that on hearing the report of fire shot he came out from his house and witnessed four persons coming. When he reached near them, they threatened to remain away otherwise he would be shot dead. Altaf appellant came forward and when he tried to catch-hold he fired a shot aiming at him. However he escaped and then all the accused fled away.
PW-5 Munawar Hussaih HC stated that on 27.9.2002 he handed over two sealed parcels said to contain blood-stained earth and two empties to Abdul Ghaffar Constable for onward transmission to the office of Chemical Examiner and FSL, Lahore.
PW-6 Dr. Munir Akhtar Khan prepared Ward Report Exh.PE of Muhammad Shabbir on 23.7.2002 and found nine injuries on his person. Oh 16.7.2002 police submitted an application Exh.PF for recording statement of patient Muhammad Shabbir and injured was declared fit to make his statement.
PW-7 Dr. Mushtaq Ahmad Ch. conducted the autopsy upon the dead body of Muhammad Shabbir on 23.7.2002 and found multiple injuries on his person. In his opinion, all injuries were ante mortem in nature inflicted by fire arm. The deceased died on 22.7.2002 due to pulmonary embolism.
Probable time that elapsed between injuries and death was 1 to 1% month and the time between death and autopsy was eighteen to twenty four hours.
PW-8 Shaukat Ali S.I. recorded the formal FIR Exh.PC/1.
PW-9 Muhammad Nasir constable escorted the dead body of Muhammad Shabbir and doctor handed over to him the last worn clothes of the deceased and police papers.
PW-10 Abdul Ghaffar constable deposited two sealed parcel said to contain blood-stained earth and empty to the offices of Chemical Examiner and FSL Lahore in tact.
PW-11 Sheikh Muhammad Sarfraz Draftsman prepared the scaled site-plan Exh.PK, Exh.PK/1 and Exh.PK/2.
PW-12 Dr.Amjad Ali medically examined Mst. Sajida Bibi wife of Muhammad Shabbir deceased on 11.6.2002 and found three injuries on her person.
PW-13 Sakhawat All S.I. is the I.O. of this case who after completion of investigation, submitted the challan against the appellant.
Learned DDA gave up Ghulam Raseol, Muhammad Ramzan and Mst Hajran Bibi and tendered in evidence the report of Serologist Exh.PO and the report of Chemical Examiner Exh.PP in respect of blood-stained earth and closed the prosecution case.
4. The statement of appellant u/S. 342 Cr.P.C. was recorded. He negated the allegations levelled against him and professed his innocence. When asked, as to why this case against you and why the PWs deposed against you, the appellant stated as under:-- "I am a rickshaw driver by profession. Complainant of this case Muhammad Sharif is my close relative. There is a longstanding enmity between my family and complainant. Prior to this occurrence complainant also involved me in a false case of decoity and I was arrested by Police Station Gulgasht Multan. However, I was found innocent during investigation, thereupon police released me. On the whole night of occurrence I remained present. at Shamim Petrol Pump with regard to repair of my rickshaw and this fact was proved by me during police investigation. It was an unseen occurrence and I have been falsely involved in this case. I was arrested by police in this case after a delay of about two months. On the other hand participated in the "NAMAZE-E-JANAZA" and I also attended the "QULKHAWANI" of deceased Shabbir Hussain. My father in law filed a writ petition against local police and got issued a bailiff against my illegal detention. Having annoyed by this step, police nursed a grudge with me and, with the connivance of complainant, falsely involved me in this case, inspite of the fact that during investigation I satisfied the police in respect of my innocence. I am innocent and police was quite satisfied about my innocence. However, police sent report Under Section 173 Cr.P.C. in the Court for my trial. But, in the said report I was placed at the mercy of the Court. PWs of this case are very close friends of complainant, thereby they are interested witnesses and inimical to me."
The appellant did not opt to appear u/S. 340(2) Cr.P.C. in disproof of the allegations levelled against him by the prosecution. He produced DW-1 Javed Iqbal in his defence.
5. Learned counsel for the appellant contended that the name of the appellant is not mentioned in the FIR, in the statements u/S. 161 Cr.P.C., in the inquest report and in the site-plan etc. though the appellant is a close relative of PW-2 Muhammad Sharif complainant and PW-3 Mst. Sajida Bibi injured; that no medico legal report was issued regarding the medical examination of Mst. Sajida Bibi widow of the deceased; that no recovery was effected from the appellant; that no motive has been mentioned in the FIR and during trial, motive has been asserted as the appellant has committed some theft and the matter brought in the' punchiat and no member of the punchiat has been produced and the motive is also not worthy of reliance; that the eyewitnesses are the close relatives of the deceased and the complainant; that the statement allegedly made u/S. 161 Cr.P.C. by the deceased is not worthy of reliance and cannot be treated as dying declaration as the witnesses had made improvements; that the appellant was arrested prior 1% to 2 months from 11.9.2002 and the father-in-law of the appellant has moved an application u/S. 491 Cr.P.C. and a bailiff was deputed and he was found detained illegally in the police station, due to this reason, he was falsely implicated in this case and according to the prosecution story, four unknown persons had participated in the incident but no other was traced during the investigation; that the incident allegedly took place at 3.00 a.m. and the source of light has not been disclosed. Lastly contended that the appeal of the appellant may be accepted and he be acquitted.
6. On the other hand, learned counsel for the complainant assisted by the learned Addl. Prosecutor General for the State vehemently opposed the appeal by submitting that the appellant in his statement u/S. 342 Cr.P.C. has admitted that he has long standing enmity with the complainant party though he is closely related to him that DW-1 has been produced and during cross- examination stated that he had gone-to his house at the night time; that Mst. Sajida Bibi injured PW has fully supported the prosecution case and she has no motive to falsely implicate the appellant; that the doctor has opined that the deceased was in a position to make statement and the learned trial Court has rightly treated the statement of the deceased as dying declaration; that it is not expected that an injured person who is on death bed will make false statement and falsely involve any other person instead of real culprit; that if the complainant had any intention to falsely implicate the ,appellant his name would have been mentioned in the FIR. Lastly argued that the appeal of the appellant may be dismissed and the criminal revision for enhancement of compensation be accepted.
7. We have heard the arguments of learned counsel for the parties at length and perused the record minutely with their able assistance.
8. In this case, Muhammad Sharif complainant PW-2 had lodged the FIR on 12.6.2002 at 12-15 noon whereas the occurrence took place on 11.6.2002 at 3-00 a.m. After 3-00 a.m. Muhammad Sharif complainant had not tried to lodge the report rather the police arrived and recorded his statement at 11-35 p.m. meaning thereby after about 20 hours, the matter was reported to the police.
Despite this delay in lodging the FIR, none was nominated in the FIR. It is specifically mentioned in the FIR that one unknown person who was sitting on the outer wall of the Muse fired with .12 bore pistol at Shabbir hitting at his abdomen and some of the pellets also landed on the right hand of Mst. Sajida Bibi wife of Shabbir Ahmad deceased. It is also mentioned in the FIR that PW.4 Mulazim Hussain, the brother of the complainant, tried to obstruct the said person but he also fired upon him which remained ineffective. According to the statement Exh.PC the said statement was read over to the complainant who signed the same in token of its correctness. The appellant Altaf Hussain is not nominated in the FIR. He was subsequently involved in this case through some supplementary statement. In order to fill up the said lacuna Muhammad Sharif complainant while appearing in the Court stated that his statement Exh.PC was not read over to him. Although he admitted that Exh.PC bears his signature. He also asserted that he had nominated Altaf Hussain in his statement. He was duly confronted with Exh.PC where name of the appellant was not mentioned. According to the complainant Altaf Hussain appellant is his relative and also resided in the same town. The house of Altaf Hussain appellant is at a distance of about 5/7 houses from the place of occurrence. The complainant admitted that his statement was again recorded on 12.6.2002 at the place of occurrence. According to the Investigating Officer, he recorded supplementary statement of the complainant on 12.6.2002 and for the first time, the name of the appellant was figured in the supplementary statement.
Learned counsel for the complainant insisted that in the supplementary statement recorded by the Investigating Officer, the complainant had disclosed the name of the appellant. According to learned Additional Prosecutor General, the supplementary statement of the complainant can be read as part of the FIR. FIR is a document, which is entered into a book, maintained at the police station at the complaint of the informant and brings the law into motion whereby police starts investigation of the case under Section 156 Cr.P.C.
The appellant who is not nominated in the FIR was subsequently involved in this case through a supplementary statement and in the Court the complainant made crude improvement that he has mentioned the name of the appellant in the FIR. If he had mentioned the name of the appellant in the FIR, then there was no need for him to make a supplementary statement. It indicates that the complainant made an improvement through supplementary statement by involving the appellant in the case and no reliance can be placed therein. Due to this improvement, the other eye- witnesses had also named the appellant in this case. They are also confronted with their ;previous statements where the name of the appellant is not mentioned. Their evidence in respect of the appellant is not true rather prosecution from the very start introduced two versions, in the FIR, the assailant was unknown and in the supplementary statement, they nominated the appellant. A supplementary statement can be invented at any time because it was never signed or thumb marked by its maker by the informant whereas any report under Section 154 Cr.P.C. is also signed or thumb marked and the said report is maintained at the police station and there is no possibility of any change or interpolation in the said statement under Section 154 Cr.P.C. Any statement or further statement of the first informant recorded during the investigation by the police would neither be equated with the FIR nor could read as part of the same and the value of the supplementary statement therefore, has to be determined in view of the principle enunciated by the superior Courts.
We may observe that in the FIR although the name of the appellant is not mentioned even no description of the person is given who had fired at the deceased. Besides the complainant PW-3 Mst. Sajida Bibi although named the appellant in the Court but the fact C remained that if she had identified the said unknown person as Altaf Hussain appellant then the name of the appellant must have mentioned in the FIR. Another witness PW-4 Mulazim Hussain, the brother of the complainant was also produced. He is a witness of Vajtakkar'. He after hearing the fire shot came out of his house and saw four persons coming.
According to him, Altaf Hussain appellant tried to fire upon him but the said fire shot remained ineffective. His statement was also recorded on the following day obviously after the supplementary statement of the complainant. Likewise statement of Mst. Sajida Bibi was also recorded on the following day i,e, 12.6.2002 after the supplementary statement of the complainant.
According to PW-4 he thumb-marked his statement. No thumb marked statement of this witness is-available on the file. Another circumstance in this ease is that the occurrence took place at 3-00 a.m. which is odd hour of the night. FIR is silent regarding any source of light. Likewise the site-plan Exh.PK and Exh.PK/1 is also silent regarding any source of light. Prosecution has to stand upon its own leg. In the site-plan Exh.PK/1 it is mentioned that unknown accused fired upon Shabbir Ahmad. Even in the inquest report which was prepared subsequently the name of the appellant is not mentioned rather it is mentioned that unknown person fired upon Muhammad Shabbir. In the FIR and the inquest report it is mentioned that complainant stated that he can identify the person if he was brought before him.
In the FIR and in the statement of the witnesses three other unknown persons are also stated to be present in the house. Even in his examination-in-chief the complainant had not described any source of light. From the above mentioned circumstances, it is quite clear that at the time of occurrence it was dark and the assailant could not be identified by the complainant and PWs and due to the said reason in FIR it is mentioned that assailants were unknown. Due to the said reason at subsequent stage supplementary statement was invented to fill the lacuna of the prosecution case.
The motive alleged in the statement of the complainant also indicates that complainant party had grudge against Altaf Hussain, as according to the complainant, the deceased had made allegation of theft against Altaf Hussain whereupon Punchayat was convened and during the said proceedings Altaf Hussain appellant denied to take oath. The accused while making statement under Section 342 Cr.P.C. also pleaded that there is long standing enmity between the appellant's family and the complainant party although they are relative with each other. According to the appellant complainant Muhammad Sharif had grudge against him who earlier falsely involved the appellant in a case of dacoity in which he was found innocent by the police. From the above mentioned circumstances, it is very much clear that the occurrence took place in dark hours of the night and there was no source of light and complainant due to the previous grudge involved the appellant at a belated stage through supplementary statement. In this case according to the appellant, he was made to sit in the police station without any arrest.
The I.O. admitted that "It is correct that father in law of Altaf Hussain accused filed a writ petition of Habeas Corpus before the Honorable High Court and Bailiff was deputed by Honorable High Court."
Obviously due to said writ petition police would be hostile toward the accused.
In this case Investigating Officer also managed to record statement of Shabbir Ahmad deceased under Section 161 Cr.P.C. The trial Court considered the said statement as dying declaration, although according to the prosecution case on 16.7.2002 the Investigating Officer submitted an application before PW-6 Dr. Munir Akhtar Khan who on the said application opined that Shabbir Ahmad deceased was fit to give statement thereupon the Investigating Officer recorded the statement of Shabbir Ahmad Exh.PN. Exh.PN is not signed or thumb marked by Shabbir Ahmad deceased. It was not endorsed by the doctor. Doctor did not give any certificate on the said statement that Shabbir Ahmad during the said period remained in his senses while making statement rather PW-6 Dr.Munir Akhtar Khan had categorically stated that "I was not present at the occasion when statement of patient Shabbir Ahmad deceased was recorded by the police." Even the said statement is pot signed by any witness who could state that in his presence the deceased made statement. The occurrence took place on 11.6.2002. The said statement Exh.PN was recorded on 16.7.2002 and according to doctor on 11.6.2002 the patient was in senses. Despite that fact the statement of Shabbir Ahmad was not recorded on 11.6.2002 obviously for the reason till that time the name of the assailant was not finalized by the complainant. But Exh.PN is a statement under Section 161 Cr.P.C. Use of Section 161 Cr.P.C. is given in Section 162 Cr.P.C. and according to Section 162 Cr.P.C. the statement under Section 161 Cr.P.C. can be used by the accused only for the purpose to contradict the witness in the manner provided by Section 145 of the Evidence Act 1872 (14e of Qanun-e-Shahadat, 1984), so this is just a statement under Section 161 Cr.P.C, which cannot be considered as dying declaration. There is no certificate of the doctor on the said statement to the effect that while making the said statement Shabbir Ahmad remained in his senses. Even otherwise as already stated according to doctor on 11.6.2002 Shabbir Ahmad deceased was quite in senses the police officer has ample time to contact some Magistrate for recording the dying declaration of the deceased Shabbir Ahmad. If such practice is allowed then police officers may record statement under Section 161 Cr.P.C. of any deceased person by giving the said statement colour of dying declaration so we held that the statement under Section 161 Cr.P.C. recorded by the Investigating Officer without any endorsement of the doctor in the said statement cannot be termed as a dying declaration. In this case nothing is recovered from the appellant during investigation. The above mentioned facts create serious doubt regarding the prosecution case. In the dark hours of the night without any source of light there is no chance of identification of any person. The motive set up by the prosecution is double edged that could be the reason for false implication of the appellant. For giving benefit of doubt to any accused, it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then accused will be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right. Where evidence creates doubt about the truthfulness of the prosecution story, its benefit has to be given to the accused against whom, there is no corroboration as in the present case. Reference can be given to the basic judgment reported as Muhammad Luqman us The State (PLD 1970 SC 10) in which it is held that:-- "It may be said that a finding of guilt against an accused person can not be based merely on the high probabilities that may be inferred from evidence in a given case. The finding as regards his guilt should be rested surely and firmly on the evidence produced in the case and the plain inferences of guilt that may irresistibly be drawn from that evidence. Mere conjectures and probabilities can not take the place of poof. If a case were to be decided merely on high probabilities regarding the existence or non-existence of a fact to prove the guilt of a person, the golden rule of "benefit of doubt" to an accused person, which has been a dominant feature of the administration of criminal justice in this country with the consistent approval of the Superior Courts, will be reduced to a naught."
In the case cited as Tariq Parvaiz us the State (1995 SCM R 1345), it is observed that: "The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts.
If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled, to the benefit not as a matter of grace and concession but as a matter of right."
9. It is a case in which there are so many doubts and benefit of the same always goes in favour of the accused not as a matter of grace but as a matter of right so while extending the same benefit we accept this appeal set aside the conviction and sentence recorded against the appellant by the learned trial Court. He be released forthwith if not required to be detained in any other case.
10. Murder reference is answered in negative.
11.Due to the above mentioned reasons, Criminal Revision No, 64 of 2004 filed by the complainant for enhancement of compensation is dismissed.