' SARDAR TARIQ MASOOD, J.---Four accused persons namely Farooq Ahmad, Abdul Jabbar, Abdul Hafeez and Muhammad Ismail were tried by the learned Additional Sessions Judge, Sahiwal in case F.I.R. No, 152 dated 27-3-2004 registered under sections 302/364/109/34, P.P.C. At Police Station City Noor Shah District Sahiwal. The learned trial Judge vide judgment dated 25-6-2005 acquitted Abdul Hafeez and Ismail co-accused by extending them the benefit of doubt in their favour and convicted Farooq Ahmad and Abdul Jabbar accused appellants under sections 364/34, P.P.C. For 10 years' R.I. Each along with fine of Rs,20,000 each and in case of default to further undergo six months' S.I. They were further convicted 302-B/34, P.P.C. Each for committing Qatl-e-Amd of deceased Abdul Razzaq and sentenced to death as Ta'zir. It was ordered that they would pay a sum of Rs,1,00,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased or in default whereof they shall undergo six months' S.I. Moreover the amount of above said compensation shall be recoverable as land revenue. The benefit of section 382-B, P.P.C. Was given to them.
' Farooq Ahmad and Abdul Jabbar appellants have filed Criminal Appeal No,490 of 2005 against their conviction and sentence, whereas Abdul Qadir complainant has filed Criminal Appeal No,171 of 2007 against acquittal of Abdul Hafeez, co-accused.
' The learned trial Court has sent a reference (M.R. No,514-2005) for confirmation of sentence of death awarded to appellant or otherwise. We propose to dispose of all these matters by this single judgment.
2. The prosecution story as emerged out of the complaint as well as F.I.R. And the facts enumerated in the same are that on 26-3-2004 at about 11.00 p.m. Complainant along with Abdul Ghafoor, Muhammad Younas and Abdul Razzaq were present in the house of Abdul Qadir when the accused persons namely Abdul Jabbar, Farooq Ahmad and Abdul Hafeez came there and said that they had some business with Abdul Razzaq (deceased) and they took him with them. At about 11-30 p.m. Complainant heard noise and shrieks from the western side of Abadi of the Chak whereupon the complainant Abdul Qadir, Muhammad Younas and Abdul Ghafoor P.Ws. Rushed towards the place of occurrence and when reached near Sq. 15 Killa No,25 they saw in moon lit light that Abdul Jabbar accused had put SAFA around the neck of Abdul Razzaq (deceased) who was crying; Abdul Hafeez and Farooq Ahmad accused were also present at the spot. Farooq Ahmad and Abdul Hafeez were armed with pistols .30 bore each. Farooq accused fired a shot which hit on the right side of chest of Abdul Razzaq who fell down and became injured. Then the accused Abdul Hafeez fired two successive shots with his pistol .30 bore which hit on the right and left side of genital parts of the deceased. The Abdul Jabbar accused fired a shot with his pistol which hit on the abdomen of Abdul Razzaq. Complainant party challenged the accused person and accused persons threatened the complainant party that if they came near them they would be killed. Complainant and the P.Ws. Identified the accused person in the moon lit light. Then the accused fled away from the spot, along with their respective weapons.
3. The motive for the occurrence was that about 10 days prior to the occurrence, Abdul Razzaq deceased had seen Farooq accused while making obscene/immoral acts with Mst. Fozia, the sister of the accused Abdul Jabbar and then he told this fact to Abdul Jabbar accused who felt insulted and due to this grudge accused Farooq Ahmad, Abdul Jabbar and Abdul Hafeez committed the murder of Abdul Razzaq, deceased, upon the abetment of Ismail. The criminal conspiracy for the murder of Abdul Razzaq deceased was hatched up at Addah Qadirabad by all the four accused persons, which was heard by Abdul Rehman and Farooq Ahmad P.Ws., who informed the complainant after the occurrence at the time of burial ceremony of the deceased.
4. The police after registration of formal F.I.R. Proceeded to the spot, conducted the investigation, challaned the accused persons to face the trial.
5. After consolidating both the cases i.e, instant complaint case and the State case, formal consolidated charge under sections 302/354/109/34, P.P.C. Was framed against all the four accused on 3-1-2005 by the trial Court and pleas of the accused person were also recorded in which they denied the allegations levelled in the charge and claimed trial. During trial prosecution produced as many as five P.Ws. And thereafter the remaining witnesses i.e, the officials witnesses who were mentioned in the calendar of witnesses of Challan case, were summoned by the trial Court as C.W.1 to C.W.6.
' P.W.1 Abdul Karim is the complainant of the instant complaint case as well as that of F,I.R. Exh.PA/1.
' P.W.2 Abdul Qadir is the eyewitness of this occurrence.
' P .W.3 Muhammad Ashraf 1105/C escorted the dead body of Abdul Razzaq deceased to RHC Noor Shah for post mortem examination of the deceased.
' Doctor handed over to him last worn clothes of the deceased Shirt P3, Shalwar P4 along with police papers and P.M. Report which he produced before the Investigating Officer.
' P.W.4 Abdul Rehman is the witness of conspiracy.
' P.W.5 is Dr. Nadir Shabbir M.O. Who on 27-3-2004 at 12-30 p.m. Conducted the post mortem examination on the dead body of Abdul Razzaq son of Abdul Qadir deceased and he found seven injuries on his person. According to the opinion of the Medical Officer, the death in this case was due to injuries Nos.1 to 2 causing severe internal haemorrhage and shock. The said injuries damaged the vital organs (heart and lungs etc.) which was sufficient to cause death in the ordinary course of nature. All the injuries were ante mortem in nature and were caused by fire weapon.
' During the trial Abdul Karim complainant through his counsel as well as learned DDA gave up remaining P.Ws. Being unnecessary.
6. As mentioned above, after recording the statements of the P.Ws. Mentioned in the complaint case, the witnesses of Challan case were summoned by the Court as C.Ws.
' C.W.1 Abdul Razzaq is recovery witness in whose presence on 13-4-2004 Farooq Ahmad accused while in police custody led to the recovery of pistol .30 bore P.5 and 2 live bullets P.6/1-2 from his house.
' C.W.2 Muhammad Afzal 678/C on 27-3-2004 recorded the formal F.I.R. Exh.PA/1 on the basis of complaint Exh.PA sent by Ahmad Nawaz Inspector/ S.H.O., through Nosher Ali 742/C.
' C.W.3 Muhammad Arif Patwari deposed that on 6-4-2004 he visited the place of occurrence, took rough notes on the direction of the police and on the pointation of P.Ws. He prepared the scaled site plans Exh.C.W.3/1, C.W.3/2, C.W.3/3 in the scale of one inch equal to 40 feet.
' C.W.4 Muhammad Nusrullah 484/C took two sealed parcels pertaining to blood stained earth and crime empties from Muhammad Afzal MHC and delivered the same to the concerned office intact.
' C.W.5 Muhammad Hussain 756/C on 19-4-2004 took two sealed parcels of pistols .30 bore from Muhammad Afzal 678/C and delivered the same intact to the office of FSL Lahore on 20-4-2004.
' C.W.6 is Niaz Ahmad S.-I. Who had investigated the case.
' The learned DDA for the State after tendering in the prosecution evidence, report of the Chemical Examiner Exh.PF, report of Serologist Exh.PG and the report of FSL, Lahore as Exh.PH closed the prosecution case.
' On examination of the prosecution evidence all the four accused were examined under section 342, Cr.P.C. In which all the accused pleaded their innocence and denied the allegations levelled against them. All the accused did not opt to appear on oath under section 340(2), Cr.P.C. Moreover, except accused Abdul Jabbar the rest of the accused did not opt to produce their defence evidence. In reply to the question that "Why this case against you and why the P.Ws. Have deposed against you, all the above-mentioned accused in an unequivocal terms deposed as under:-- "It is a false case. P.Ws. Have deposed falsely due to their relationship inter se and with the deceased and inimical to us. It was an unwitnessed and night time occurrence. It took place at odd hours of the night. No P.W. Was present at the spot at the time of occurrence, P.Ws. Came to know about the occurrence on the following morning of the occurrence at about 8-00 a.m. And thereafter, after due deliberation and consultation the complainant party falsely involved us in this case."
' 5(sic) Learned counsel for appellants contended that as far as recovery from Farooq and Abdul Jabbar appellants is concerned, the same has been effected on 7-4-2004, the empties were received in the office of the Forensic Science Laboratory on 12-4-2005 after five days of the recoveries of pistols. Both empties and the pistols were kept together in Malkhana for about five days. In order to deceive the Court, the police had sent the pistols separately on 20-4-2004.
Learned counsel for the appellants contended that admittedly the occurrence took place at 11-30 p.m. The sun was set at 6-17 p.m. About four hours before the incident and it was dark night. It was 5th of Safar. Moon must have been set off/at 9-00 p.m. The claim of the eyewitnesses regarding witnessing the incident in the moon light is thus falsified. It is contended that complainant had admitted that it was 5th of Safar on the night of occurrence. It is also contended that the complainant had a telephone connection and a motor cycle was also available at the place of occurrence but in spite of the said fact, the F.I.R. Had been recorded at 8-30 a.m. After two hours and thirty minutes of the sun rise. There is a delay in lodging the F.I.R. Which is unexplained. The post mortem examination has been conducted with further delay at 12-30 p.m., F.I.R. Was not recorded in the given time, the time was consumed by the prosecution to concoct the prosecution story after consultation and deliberation and they ascribe the roles to the accused by attributing the injuries to the accused persons. It is further argued by learned counsel for the appellants that they have been falsely implicated as they belonged to separate sects.
' At this stage, Chaudhry Pervaiz Aaftab, Advocate while appearing on behalf of Abdul Hafeez respondent No,1 in Criminal Appeal No,171 of 2007 filed against his acquittal has submitted that the witnesses would not be in a position to see the incident, whereas, Malik Fazal Karim, Advocate while appearing on behalf of Abdul Jabbar appellant contended that witnesses were sitting at a distance of two squares of land from the place of occurrence, when they along with other people heard the noise of the deceased and had witnessed the occurrence and according to P.W.2 Abdul Qadir when they had heard the fire shot then they proceeded to the place of occurrence and therefore, they were not in a position to witness the incident; Lastly, contended the witnesses had no idea that which of the accused had fired at the deceased and from what distance.
6. On the other hand, learned counsel for the complainant assisted by learned DPG has contended that it has been wrongly held by learned counsel for the complainant that motive has not been proved. It is also contended that the deceased was from the family of the accused Abdul Jabbar who claimed that he told about the motive incident to the other persons which has brought bad name to his family. It is further contended that there is no inordinate delay in lodging the F.I.R. As condition of the family members was worst at the time of seeing the incident and they were making efforts to get the case registered; that condition after the occurrence varies from man to man; that the doctor conducted the post mortem examination as soon as the dead body of the deceased was brought to him. It is further contended that the ocular version is in line with the medical evidence and the accused are closely related to the complainant party and there is no chance of false implication of the appellants in the presence case. It is further contended that investigation was conducted dishonestly. The empties were kept in the Malkhana and were sent to the FSL after recovery of the pistol in order to damage the prosecutioh case; that the prosecution has been succeeded in proving the case against the appellant beyond shadow of doubt and that the prosecution witnesses are consistent on material points.
7. We have heard the arguments of learned counsel for the parties at length and perused the record carefully with their able assistance.
8. In this case the motive alleged by the prosecution is not believable. In the F.I.R. It is nowhere mentioned that Abdul Razzaq deceased passed information to Abdul Jabbar accused in the presence of some witnesses. No witness was produced by the prosecution who could claim that in his presence, deceased Abdul Razzaq had given information to Abdul Jabbar accused regarding obscene/immoral act made by Farooq accused with Mst. Fauzia, the sister of Abdul Jabbar. The same was the position when the complainant filed a private complaint. Even in the said complaint it is nowhere mentioned that in whose presence the deceased had passed on the information to Abdul Jabbar. It is the prosecution case that Abdul Razzaq informed accused Abdul Jabbar that Farooq accused was making obscene act with his sister namely Mst. Fauzia. Thereafter the natural conduct of Abdul Jabbar would have been that he should be thankful to Abdul Razzaq who had passed the information to him. If the prosecution story is true regarding the motive, then the natural conduct of Abdul Jabbar should be that he should try to eliminate the person who had tried to commit the obscene/immoral act with his sister and tried to play with the family honour but in this case, the prosecution had given unbelievable story which is against the human nature.
In this background it cannot be expected that Abdul Jabbar will join a person who Chad tried to tarnish the family honour of said accused. So, the motive put up by the prosecution is not believable and in the background of the prosecution story it reveals that the motive was concocted one. The trial Court had rightly disbelieved the motive part of the occurrence while giving cogent reasoning.
9. In this case, according to the prosecution, the occurrence took place at 11-30 p.m. Mid night.
Admittedly, there was no artificial source of light at the place of occurrence. It is the prosecution's duty to prove that at the place of occurrence there was sufficient light to identify the assailants. In the F.I.R. It is mentioned that it was moon lit night, hence the witnesses were able to identify the assailants. But without the source of light there is always a chance of mistaken identity. P.W.1 Abdul Karim admitted that place of occurrence is at a distance of one square from his house where they were sitting prior to the occurrence. Initially his case before the police was that after hearing the reports of fire shot, they attracted to the spot but during trial he made improvement that only after hearing the noise, he went to the place of occurrence. He was duly confronted with his previous statement Exh.DD, wherein it is mentioned that after hearing the reports of fire shot, they were attracted to the spot. So, in this eventuality, if the firing had already been made, then there was no occasion to witness the occurrence by these P.Ws. According to the prosecution this occurrence had taken place at 11.30 p.m. And sunset at about 6.17 p.m. So the occurrence took place after about four hours of the sunset. Admittedly, it was a dark night. According to P.W.1 the night of occurrence was the 5th of lunar month i.e, Safar and not 4th of that month. If we presume that it was 5th of Safar then moon must have set off at 9-00 p.m. Because it was early days of rising of the moon, so, at 11-30 p.m. There could be no chance of any moon light. The prosecution had not mentioned any other source of light. So, from this angle the identity of the assailants at the time of occurrence is not possible and this fact by itself negates the version of the prosecution case and creates serious doubt upon the veracity of the prosecution case.
10. In this case the occurrence had taken place at about 11-30 p.m. According to the complainant he had a Telephone Connection bearing No,304372 but he did not try to inform the police through telephone regarding this occurrence till the next day. This silence on the part of the complainant and the witnesses indicates that it was a case of unseen occurrence and the complainant party kept on consultation and deliberation. P.W.1 admitted that his village is connected with Adda Qadirpur with metalled road. According to him, Abdul Razzaq was having a motorcycle but they did not try to report the matter to the Police Station and kept on sitting there till the next day and at 8- 00 a.m. When the police reached at the spot. It was month of March even after sun rise on the following day, they did not try to go to the Police Station to lodge a report which is at a distance of 10 miles from the place of occurrence. Fard Biyan Exh.PA was recorded on the following day at 8-00 a.m. During the whole prosecution evidence no explanation had come forward regarding the above-mentioned delay in lodging the F.I.R. In this background the occurrence being committed in the dark hours of the night, the delay in lodging the F.I.R. Is a circumstance which indicates that this F.I.R. Was lodged after deliberation and consultation which fact falsified the prosecution story and create a doubt in the prosecution case.
' Another aspect in this case indicates that even the Fard Biyan was not recorded at the given time because the post mortem examination was conducted on the said date at 12-30 p.m. If Fard Biyan was recorded at 8-00 a.m. Then the post mortem examination must have been conducted immediately thereafter. It was argued by the prosecution that delay occurred due to the non- availability of the doctor but according to the doctor:-- "There was no delay on my part in conducting the post mortem examination and as soon as the police papers and the dead body was received I started the post mortem examination on the person of the deceased."
' This fact indicates that the police papers i.e, Inquest report, the application for post mortem examination were presented to the doctor at about 12-30 p.m. And prior to that said papers were not available to the doctor. This fact further confirm that even F.I.R. Was not recorded at the given time and the same was recorded with further delay.
11. Admittedly, the complainant party belongs to different sect than the accused party. The complainant was accused in case F.I.R. No,478. He was also an eye-witness in case F.I.R. No,240 of 1992 under section 302, P.P.C. And appeared in the said case in Sessions Court and in the said case the accused namely Akram was sentenced to death but subsequently, his conviction was altered to imprisonment for life and he was released from jail after serving out his sentence. The complainant also admitted that he got registered case F.I.R. No,597 of 2000 under section 379, P.P.C.
Against Muhammad Arif and Qasim Ali etc. This fact indicates that the complainant party had other enemies also and during dark hours of the night some one might have committed this occurrence and after deliberation and consultation, the accused persons have been involved in this case.
' So far recoveries in this case are concerned, the empties from the spot were recovered on 27-3- 2004 whereas, Abdul Jabbar and Farooq Ahmad appellants were arrested on 1-4-2004. On 7-4- 2004, the pistol .30 bore P-2 was allegedly recovered on the disclosure of Abdul Jabbar and on the same day pistol P.5 was allegedly recovered on the disclosure of Farooq Ahmad appellant.
Surprisingly, in this case the empties were dispatched to the Office of Forensic Science Laboratory on 12-4-2004, meaning thereby, that the empties and the pistols recovered at the instance of both the A appellants remained together in the Malkhana and there was possibility of tampering and manufacturing of empties after the alleged recovery of pistols.
' On 12-4-2004, the empties were sent to the office of the FSL but the prosecution in order to deceive the Court sent die pistols separately on 20-4-2004. If the prosecution was with clean hands and there was no element of fabrication, the empties should have been sent at the earliest and it should not be kept in the Malkhana till the recovery of the pistols. Even the prosecution could not give any explanation as to why the pistols were not sent on the day when the empties were dispatched to the Office of the Forensic Science Laboratory, when the pistols were also available with Moharrir Malkhana but in order to deceive the Court said procedure was adopted. So, the recovery due to the above-mentioned facts is inconsequential l2. As earlier discussed, the occurrence took place in the dark hours of the night and there was no question of identity of the appellants in the dark hours without any source of light and the source which was introduced by the prosecution was the moon lit night which was not available on 5th of Safar at the time of occurrence i.e, 11-30 p.m. Which creates serious doubt upon the prosecution case. The delay in lodging the F.I.R, is also a circumstance which indicates fabrication on the part of the prosecution and this delay is further proved as the post mortem examination was conducted with another delay of more than -four hours, which fact also creates doubt regarding the prosecution story.
13. Motive is already disbelieved by the trial Court and by this Court as mentioned above and recoveries are inconsequential as discussed above.
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 mater 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 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 any 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 D the guilt of the accused, then the accused will be entitled to the said benefit not as a matter of grace and concession but as a matter of right. In this case as discussed above, there are many circumstances which create doubt upon the prosecution case.
14. 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 E the prosecution has not been able to prove in the instant case, we allow this appeal and set aside the conviction and sentence of the appellant.
15. Consequently, for what has been discussed above, Criminal Appeal No, 490 of 2005 filed by Farooq Ahmad and Abdul Jabbar appellants is accepted and the conviction and sentence awarded to them is set aside. They shall be released forthwith from jail, if not required to be detained in any other case.
16. Murder Reference No,743 of 2004 is answered in the Negative and the sentence of death passed by learned trial Court against Farooq Ahmad and Abdul Jabbar appellants is not confirmed.
17. Since, the prosecution has failed to prove its case, therefore, the appeal filed by the complainant Abdul Qadir against the acquittal of Abdul Hafeez respondent is hereby dismissed.