' SARDAR TARIQ MASOOD, J.---Bashir Ahmad, Shamsheer and Wazeer sons of Ghulam Yasin appellants along with Muhammad Waryam alias Balli son of Lal were tried by the learned Additional Sessions Judge, Multan in case F.I.R. No,26, dated 2-2-1996 under section 302/324, P.P.C.
Registered at Police Station Muzaffarabad District Multan who vide his judgment, dated 29-4-1998 while acquitting Muhammad Waryam accused convicted the appellants under section 324, P.P.C.
And sentenced them to imprisonment for ten years' R.I. Each along with fine of Rs,10,000 each. In default of payment of fine each of them was ordered to undergo for S.I. For six months. The benefit of section 382-B Cr.P.C. Was extended in their favour. The appellants have filed the instant appeal against their aforesaid conviction and sentence.
2. The brief facts of the prosecution case as per F.I.R. Exh. PJ are that on 2-2-1996, Habib Bakhsh complainant got recorded his statement in the Police Station that he was resident of Chah Kikar Wala and resided with his sons. He had cultivated wheat crops adjacent to Killa No,7 Sq. No, 63 and his son Ghulam Shabbir went to have a round of the crops at 11-30 p.m. Thereafter he waited for Ghulam Shabbir as his wheat crop was at a distance of four acres from his residence. He came out of his house/residence when he heard the hue and cry. He called his son Nazar Muhammad and nephew Imam Bakhsh and they ran towards the noise and when reached near, they found that the alarm/noise was coming from the house of Muhammad Yasin. When came nearer, all the three saw that Ghulam Shabbir had been tied by a rope from his hands and legs. Bashir, Shamir, Wazir accused son of Muhammad Yasin and Wariyam alias Balli accused all armed with Sotas (bamboo Sticks) were beating Ghulam Shabbir, son of the complainant, who was raising noise while lying down. The complainant and others tried to go nearer but the accused threatened them for dire consequences and due to the fear, they could not go near to Ghulam Shabbir. At about 4-30 a.m.
The accused persons after severly beaten Ghulam Shabbir deceased, when he was about to die, accused ran away from the place of occurrence along with their weapons of offence i.e, Sotas. The accused asked the complainant and others to take away the body of Ghulam Shabbir deceased.
All the three P. Ws. Including the complainant removed the body of Ghulam Shabbir in an injured condition from the room of the accused. Ghulam Shabbir was unconscious at that time and after travelling a few steps, he died.
' The motive for the occurrence as mentioned in the F.I.R. Is that Ghulam Yasin had a suspicion that his wife had got illicit relations with Ghulam Shabbir deceased.
3. After completion of the investigation, challan was submitted against the appellants. Charge was framed, to which they pleaded not guilty and claimed trial. In order to prove its case, prosecution got examined as many as 3 witnesses in toto and also tendered documentary evidence.
' P.W.1. Muhammad Akram Patwari, prepared the site plans Exh.PA, Exh.PA/1 and Exh.PA/2.
' P.W.2. Arshad Muhammad took into possession the last worn-clothes of the deceased Ghulam Shabbir i.e, Qameez P.1 and Chadar while Exh.2. Vide recovery memo. Exh.PB which has been thumb-marked by him.
' P.W.3 Zahoor Ahmad is the recovery witness of Sotas Exh.P.W.3 to Exh.P.6 which were taken into possession vide recovery memos. Exh. P. C . To Exh . P. F.
' P.W.4 Gohar Jamal Constable No,1268-C was handed over the dead body of the deceased and he escorted the same to the Civil Hospital Multan. Thereafter last-worn clothes P-1 to P-2 along with dead body were handed over to him by the Doctor.
' P.W.5 Dr. Mehr Noor Ahmad M/O District Jail, Multan conducted the autopsy of the deceased.
' P.W.6 Habib Bakhsh is the complainant of this case who supported the story narrated by him before P.W.-8 S.-I./I.O.
' P.W.7 Imam Bakhsh is the eye-witness of the occurrence.
4. P.W.8 Rana Suffad Ali, S.-I./I.O. On 2-2-1996 while posted in Police Station Muzaffarabad at 8-20 recorded the formal F.I.R. Exh.PJ on the statement of Habib Bakhsh complainant. Thereafter, he went to the place of occurrence, examined the dead body of Ghulam Shabbir deceased and prepared the injury statement Exh.PI, prepare the Inquest report Exh.PH. Recorded the statement of the witnesses under section 161, Cr.P.C. He effected recoveries, collected the necessary pieces of evidence, arrested the appellants. Rope P-7 was produced before him by the complainant P.W.6 which was taken into possession vide recovery memo. Exh.P.K. On visiting the place of occurrence he prepared the rough site plan Exh.PL. On 3-2-1996 last-worn clothes (P1, P2) of the deceased were taken into possession vide recovery memo. Exh.PB. From the accused alleged weapons of offence i.e, Sotas P.3 to P.6 were recovered and taken into possession vide recovery memos. Exh.P.E. To Exh.P.F. Which were attested by Zahoor Ahmad P.W.3 and Muhammad Ramzan. He collected scaled site plans Exh.PA., PA/1, PA/2 from P.W.1 Muhammad Akram Patwari and gave notes with red ink on the said exhibits. Thereafter he completed the investigation and submitted report under section 173, Cr.P.C. In the Court.
5. The appellants when examined under section 342, Cr.P.C. Denied the recoveries and had taken the plea that they have been falsely involved in this case because of local politics. Anyhow, the accused have not produced any evidence in defence and have not opted to make their statement on oath under section 340(2), Cr.P.C.
6. Learned counsel for the appellant contended that the medical evidence completely belied the ocular account as according to the prosecution case as set up during the investigation, the deceased was tied from his hands and feet but no such mark on hands and feet was found by the Doctor during the postmortem examination rather the Doctor described the cause of death due to stress of ligature and asphyxia. Further contended that according to the prosecution case, the occurrence took place on 2-2-1996 at 4-30 a.m. Whereas the postmortem examination was conducted on 3-2-1996 at 12-00 noon and during the whole investigation or the trial to explanation came forward regarding the said delay. Further contended that no source of light was ever given by the appellant during the investigation. Although, the Doctor admitted that the blood was coming out from the injury and the complainant also admitted that the blood was available on the place of occurrence but no such blood was taken into possession. It is further contended that it is mentioned in the F.I.R. That on hearing the hue and cry of the deceased, the complainant etc. Went to the place is also negated by the medical evidence as according to the Doctor, the hyoid bone of the deceased was fractured and in such situation he was even not able to speak; that the conduct of the eye-witnesses is also indicative that they were not present at the scene of occurrence. It is further contended that the motive put up by the prosecution was false on and the same was not put to the accused under section 342, Cr.P.C., hence, the same cannot be read against them. Lastly it is contended that the fatal injury was attributed to Waryam alias Balli accused who was acquitted and the appellants have been illegally convicted and sentenced under section 324, P.P.C.
7. The learned Deputy District Public Prosecutor has vehemently opposed this appeal by contending that, although, it is nowhere mentioned during the investigation that the rope was wrapped around the neck of the deceased but during the trial the witnesses have categorically stated that Waryam alias Balli had wrapped the rope around the neck of the deceased and strangulated him. Further contended that motive gave corroboration to the prosecution case.
Further contended that during the trial, the witnesses had stated that there was a source of light in the shape of a bulb and it was not necessary that they would explain the same during the investigation. Further contended that it is not necessary that the blood-stained earth should be taken from the place of occurrence.
8. Arguments heard. Record perused.
9. Admittedly in the F.I.R. And during the course of investigation, the case of the prosecution was that the occurrence took place in the house of the accused party and brother of the complainant brought the dead body to his house. In order to prove the place of occurrence, the blood-stained earth is always collected in the murder cases. In this case, although, the complainant during the cross-examination admitted that he had seen the blood on the ground from where the dead-body of Ghulam Shabbir deceased was lifted by them but surprisingly in this case no blood-stained earth was taken in order to prove that the place of occurrence was the house of the accused or that the place of occurrence was changed subsequently, as in both the site plans it is nowhere mentioned that the said place belongs to the accused party. But it is very pertinent that according to the complainant, when he brought the police to his house, the dead body was lying in his (complainant's) house, whereas, the Investigating Officer while appearing deposed that when he reached the place of occurrence, the dead body was lying there. Meaning thereby, according to the Investigating Officer the dead body was lying in the house of the accused party, whereas, according to the complainant they had already shifted the dead body from the house of the accused to the house of the complainant. Another important circumstance also creates doubt regarding the place of occurrence. According to the complainant they had shifted the dead body from the house of the accused to his house but in the Inquest Report, Column No,24 is meant to know the place where the dead body was lying at the time of preparation of the Inquest Report and in the said column it is mentioned the room of Shahmeer and Bashir etc. This fact indicates that the place of occurrence is shrouded in mystery and the prosecution tried to change the same as and when it suited to them, so with no stretch of imagination it can be presumed that the occurrence took place in the house of the accused persons.
10. Admittedly, it were dark hours of the night when the occurrence took place and during the whole investigation, the prosecution remained silent regarding the source of light. In both the site plans there is no mention of any source of light but the witnesses during the trial for the first time made dishonest improvement and stated that the electric bulb was on but the said bulb was never taken into possession during the whole investigation and this improvement makes the case of the prosecution to be doubtful.
11. So far as the ocular account is concerned, according to the F.I.R. And statements under section 161, Cr.P.C. The witnesses attracted ro the place of occurrence on hue and cry of Ghulam Shabbir, deceased and when they reached there, the accused were beating Ghulam Shabbir, but according to the Doctor, "If the hyoid one in broken then the person cannot speak." In this case the hyoid bone of the deceased was already found broken by the Doctor.
The conduct of the witnesses is also an important aspect of this case. According to the prosecution, the accused persons were armed with bamboo sticks (sotas) and they were not alleged to be armed with any fire-arm i.e, the lethal weapons but the complainant (P.W.6) Habib Bakhsh, the father of the deceased, Nazar Muhammad the brother of the deceased and Imam Bakhsh P.W.7 being cousin of the deceased did not interfere rather it is mentioned in the F.I.R. That as the accused had extended threats to them they remained standing and did not go close to the deceased due to fear. If they would have been present there, they would have definitely made some attempt to rescue their near one from the clutches of accused persons. This unnatural conduct also creates serious dent in the prosecution story regarding presence of the eyewitnesses at the place of occurrence, as they kept aside and their near one was being beaten by the appellants. Even otherwise, names of these witnesses have nowhere mentioned in the site plans, scaled (Exh.PA) or unsealed (Exh.PL).
12. Another important aspect of the case is that according to the F.I.R. And statements under sections 161, Cr.P.C. The deceased was tied from his hands and legs with a rope and it was not case of the prosecution that the rope was ever wrapped around the neck of the deceased. Even the recovery memo. i.e, Exh.PK is mentioned that said rope was used to fasten the hands and feet of the deceased and the said rope was unfastened from the hands and feet of the deceased, as mentioned in the recovery memo. Exh.PK.
' But during the trial both the eye-witnesses made crude improvement by stating that Waryam alias Balli had tied a rope around the neck of the deceased Ghulam Shabbir and killed him. The improvement was made only to bring in line their evidence with the medical evidence and this fact was not mentioned in the F.I.R. Exh.PJ and statement under section 161, Cr.P.C. Of Habib Bakhsh P.W.6 and the Imam Bakhsh P.W.7. These witnesses made improvement during trial in order to come in line with the medical evidence. If a witness deliberately makes improvement during trial which suits to him then the veracity of the evidence of the said witnesses becomes doubtful. In this case as already discussed both the alleged E. Ws. Had improved their version during trial hence, their evidence do not inspire confidence.
' Yet another aspect of the case is that the occurrence took place on 2-2-1996 at about 4-30 a.m.
And according to the F.I.R. The complainant reached Police Station at 8-30 p.m. When the was chalked out but the complainant during the course of trial stated that after the occurrence, in the morning he started his journey and reached to the house of Gulzar Dogar and from the said village to Gulzar Dogar he hired a wagon and then reached to the Police Station at 11-30 a.m. When the complainant after the occurrence, reached for the first time in the Police Station at 11-30 a.m. Then how the F.I.R. Could be lodged at 8-20 a.m. On the statement of the complainant. This fact indicates that Roznamcha was withheld and after making a preliminary inquiry, the F.I.R. Was chalked out which also indicates that consultation and deliberation was made before lodging the F.I.R. But in this case, another circumstance also indicates that the F.I.R. Was chalked out after deliberation because on 2-2-1996 the Doctor was not informed about the death of the deceased and on 3-2-1996 at 12-00 noon the police gave him the information about the death of the deceased and then he conducted the post-mortem examination at 12-00 a.m. There is no explanation that why the post mortem examination was delayed for such a long time.
' So far as the motive is concerned, the motive set up by the prosecution is that Muhammad Yasin, the father of the accused got suspicion on Ghulam Shabbir deceased of having illicit relations with his wife. But during the cross-examination, P.W.6 admitted that Yasin never complained to him about the alleged illicit relations of Ghulam Shabbir with his wife and it was the complainant who of his own guess, stated that the occurrence took place due to said illicit liaison.
No doubt to establish the case, motive is not the necessary requirement in all murder cases but where the motive is asserted by the prosecution and is not proved and is stated to be a guess the same casts serious doubt regarding the veracity of the prosecution version but in this case even the motive cannot be read against the appellant as the same was not put to the accused under section 342, Cr.P.C. And a piece of evidence which was not put to the accused cannot be read against them.
In this case, the death occurred due to stress of ligature and asphyxia. The said injury although was not attributed to any one during the investigation, but during the trial through a crude improvement it was attributed to the co-accused Waryam alias Balli who has been acquitted by the trial Court while giving him the benefit of doubt. No appeal against his acquittal has been filed by the complainant side. The benefit which was given to Waryam co-accused who was attributed the fatal role by the P.Ws., must have been extended to the present appellant.
As discussed above, as the prosecution evidence is not confidence-inspiring and the witnesses who were closely related to the deceased making improvements and were changing their version as and when suited to them improvements once found deliberate and dishonest then it casts serious doubt about the veracity of the witnesses. In this case, the eye-witnesses in order to come in line with the medical evidence made crude improvement as discussed above, hence, they are not reliable and trustworthy.
' 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 regarding some accused its benefit has to be given to the accused without any reservation and in such .a situation, a strong corroboration becomes necessary which is lacking in the present case. It may be said that a finding of guilt against an accused person cannot be based merely on the high probabilities that may be inferred from evidence in a given case. The findings as regards of guilt should be rested surely and firmly on the evidence produced in the case and plain inferences of guilt that may irresistibly be drawn from that evidence. Mere conjectures and probabilities cannot take the place of proof. 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.
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 doubt. 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. In this case as discussed above, there are circumstances which create doubt upon the prosecution case.
For what has been discussed above, as conviction cannot be recorded merely on probabilities and prosecution has to prove its case beyond any shadow of doubt, which the prosecution has not been able to prove in the instant case, I allow this appeal and set aside the conviction and sentence of the appellant. They are already on bail. Their bail bonds shall be discharged.