' MANZOOR AHMAD MALIK J.---This judgment shall dispose of Criminal Appeal No,1747 of 2003 (Muhammad Jamil and others v. The State) and Murder Reference No,723 of 2003 (The State v.
Muhammad Jamil and others) sent by the learned trial Court for confirmation or otherwise of the death sentence awarded to appellants Nos.1 and 2 (Muhammad Jamil and Muhammad Ash), as both have arisen out of the same judgment dated 30-9-2003 passed by learned Additional Sessions Judge, Okara in case F.I.R. No,98 of 2002 dated 9-3-2002, registered under sections 302/324/148/149, P.P.C. With Police Station Saddar Renala Khurd, District Okara.
2. After conclusion of the trial, appellants Nos.1 and 2 (Muhammad Jamil and Muhammad Asif) were convicted under section 302(b), P.P.C. For the murder of Farman Ali and sentenced to death each, along with compensation/fine of Rs,50,000 each, to be paid to the legal heirs of the deceased, whereas appellants Nos. 3 and 4 (lftikhar Ahmad ' and Muhammad Aslam) were convicted under section 324, P.P.C. For causing injuries to Javaid lqbal P.W. And sentenced to 10 years each. They were further ordered to pay a compensation of Rs,25,000 each to the injured P.W.
And in case of default whereof, they shall further undergo for 3-months' S.I. However, the co- accused namely Muhammad Ahmad was acquitted from the charge by giving him benefit of doubt by the learned trial Court.
3. Precisely, the facts of the case are that Muhammad Rafique (P.W.1) submitted an application (Ex.PA) to the S.H.O, Police Station Saddar Renala Khurd for registration of a criminal case stating therein that he was resident of Chak No,3/1-L. Today, one of his relatives namely Farman Ali son of Shabbir, caste Rajput, resident of Chak No,26/M, District Lodhran had come to his house as a guest and at about 8-00 p.m. The complainant, his brother Akbar Ali, nephew Javed lqbal, Farman Ali and Muhammad Ahmad son of Umar Farooq were sitting in the Baithek when Muhammad Ahmad suggested Javed lqbal to watch a film on that day on V.C.R., upon which, nephew of complainant Javed lqbal, Farman Ali and Muhammad Ahmad went to take the V.C.R. And film on rent from Chak No,2/1-L., but they did not come back after lapse of a considerable time, so, the complainant, his brother Akbar Ali and his nephew Pervaiz Akbar went behind them to Chak No,2/1-L. It was stated in the F.I.R. That on the way, said Javed lqbal, Farman Ali and Muhammad Ahmad (along with V.C.R.
And film) met them and when they reached at the distance of 1 square of Chak No,3/1-L, all of a sudden, Muhammad Asif son of Muhammad Abbas, Muhammad Jamil son of Riaz, armed with pistols .30-bore, Muhammad Aslam and lftikhar alias Tota sons of Riaz Ahmad armed with dagger came and Muhammad Ahmad asked Muhammad Asif etc. That he had brought their enemy and do with them what they want. Muhammad Asif and Jamil extended a threat that if any person would come near they will kill him. Thereafter Muhammad Aslam and Iftikhar alias Tota attacked with their daggers upon Javed lqbal with their common intention and Aslam inflicted dagger blows on the right and left side of his head, lips, near about his left eye and right finger of right hand.
Lftikhar accused also inflicted dagger blows on Javed lqbal, which hit at his finger of left hand and at the left arm. Farman Ali came to rescue him, upon which Asif accused made a fire shot from his .30-bore pistol which hit the temple of Farman Ali and went through and through. Muhammad Jamil repeated 3 fire shots with his pistol, which hit Farman Ali on his chest and went through and through. Farman Ali rushed to save his life but he fell down at a distance of about 2-Acres and succumbed to the injuries. The complainant, his brother Akbar Ali, nephew Pervaiz Akbar and Javed lqbal, witnessed the said occurrence. The motive as stated in the F.I.R. Was that Asif (appellant) had a suspicion that his sister Mst. Sajida had illicit relations with Javed lqbal.
4. After completion of investigation, challan was submitted. The appellants were charge sheeted, to which, they pleaded not guilty and claimed trial.
5. In order to prove its case, prosecution examined as many as 16 witnesses in all and also tendered documentary evidence i.e, report of Chemical Examiner as Exh.PR, report of Serologist as Exh.PS and report of Forensic Science Laboratory as Exh. PT.
6. The appellants in their statements recorded under section 342, Cr.P.C. Claimed their innocence and denied the prosecution allegations levelled against them. The appellants, however, did not appear in rebuttal as their own witnesses, as required under section 340(2), Cr.P.C. However, they examined D.W-1 (Muhammad Jamil S.-1.) and D.W-2 (Wazir Ali son of Sardar AID in their defence.
Thereafter, the learned trial Court convicted and sentenced the appellants as mentioned above.
7. Learned counsel for the appellants, in support of this appeal, contends that the appellants have falsely been implicated in this case; that there is an unexplained delay in the registration of F.I.R., which is clear from the facts that postmortem on the dead body of the deceased was conducted at 8-45 p.m. On 9-3-2002; that as a matter of fact two different occurrences have been combined by the prosecution in a single F.I.R.; that injured Javed lqbal (P.W.2) was taken to Police Station Renala Khurd on 8-3-2002, at about 10-5 p.m. And in this respect Rappat No,21 (Exh.DE) was also recorded by Azadar Hussain Moharrar No,1091, who subsequently appeared as P.W-10 and supported the contents of said Rappat (Exh.DE); that the Investigating Officer (P.W.12) deposed that he recorded the statement of the complainant (P.W.1) at about 1-00 p.m. At by-pass Shergarh Renala Khurd but the complainant on the other hand stated that he remained at the spot till 3-00 p.m. Whereas, the Investigating Officer stated that he dispatched the dead body from the spot to the mortuary at 2/2-30 a.m and Allah Ditta (P.W.11) has stated that he took the dead body from the spot and he reached the hospital at morning Azan time whereas, the postmortem was conducted at 8-45 p.m. On 9-3-2002 and the doctor (P.W.7) has stated that the application was marked to him at 8-40 p.m.; that the injured (Javed lqbal) was examined at the same night (8-3-2002) at Rural Health Centre, Renala Khurd; that in Exh.DE there is no mention of the names of the appellants and even there is no mention of the name of Farman Ali in any context; that the story of the prosecution, in the circumstances, is highly improbable because admittedly it was a dark-night occurrence as admitted by Muhammad Rafique (P.W-1) and Javed lqbal (P.W.2) and they claimed that they identified the culprits in the torch light but no torch light was produced during the investigation. Moreover, they had gone to fetch a V.C.R. And film but no film or V.C.R. Was taken into possession nor Khalid shopkeeper, from whom film and V.C.R. Were taken on rent, has been produced during the investigation; that deceased received four fire-arm injuries and there is blackening around the wounds of the deceased, which belied the ocular account as the deceased was fired at frOm a close distance; that Javaid lqbal, who, as per prosecution, was the real target has received injuries with sharp edged weapon, whereas an innocent person was done to death by fire-arm which is not probable; that the motive part of the occurrence has also been belied by the prosecution witnesses as P.W-2 (Javed lqbal) has stated that he had no illicit relations with the sister of Asif Ali and no independent witness has been produced to prove the motive; that the prosecution story is full of doubts and appellants are entitled to the benefit of every doubt not as a matter of grace but as a matter of right; that as per prosecution dagger was recovered from lftikhar Ahmad appellant on 25-4-2002, while .30-bore pistol was recovered from Muhammad Jamil appellant on 25-4-2002, whereas he was arrested on 20-4-2002; crimes empties were sent to Forensic Science Laboratory for comparison on 22-4-2002 after the arrest of Muhammad Jamil but there is no evidence to the effect that who has taken these empties to the Laboratory and as such no reliance can be placed on the report of the Laboratory; that the presence of the eye- witnesses is belied from the fact that they all have stated that deceased Farman Ali after receiving the injuries ran away and fell at a distance of two acres, whereas the doctor (P.W.7) has stated that deceased was not in a position to run after receiving the injuries. Learned counsel, lastly contends that statement of the Javaid lqbal, injured is of no avail for the prosecution because mere injuries on his person will not make him a truthful witness as his statement is belied by other circumstances.
8. Conversely, the learned Deputy Prosecutor-General for the State vehemently opposed this appeal on the grounds that the appellants are specifically named in the F.I.R. With specific roles for causing injuries to the deceased and in this case there is an injured P.W. (Javaid lqbal) who has fully supported the prosecution case. The prosecution has proved its case through ocular as well as medical evidence and recovery of weapons of offence i.e, dagger and .30-bore pistol; that the report of the Forensic Science Laboratory is also positive; that the statements of eye-witnesses inspiring confidence, and despite lengthy cross-examinations nothing adverse was brought on the record; that a specific plea was taken by the appellants in their statements recorded under section 342, Cr.P.C. And it was for the appellants to prove their plea but no attempt has been made by the appellants to prove the same; that the witnesses have no enmity with the appellants, therefore, no chance of false implication and even substitution is a real phenomenon. Therefore, this appeal may be dismissed and conviction and sentence awarded to the appellants by the learned trial Court be maintained.
9. We have heard the learned counsel for the appellants as well as learned Deputy Prosecutor- General at length, have given anxious consideration to their arguments and have also scanned the evidence available on record.
10. The main points for determination in this case are whether the murder of Farman Ali and injuries to Javaid lqbal took place in one occurrence, as claimed by the prosecution or these were two different occurrences, i.e, one in which Javaid lqbal was injured and in other, where Farman Ali was murdered as asserted by the defence side and whether F.I.R. Was got registered at the time as claimed by the prosecution. The prosecution case is that written application Exh.PA was submitted by Muhammad Rafique (P.W.1) to Muhammad Afzal Khan S.-I. (P.W.13) at 1-00 a.m. (night) on 9-3- 2002 when P.W.13 was near bypass Shergar Road, Renala Khurd along with police officials in connection with patrol duty. Muhammad Afzal Khan S.-I. (P.W.13) has stated that on 9-3-2002 at about 12-30 a.m. (night) when he was present near bypass Shergarh Road, Renala Khurd along with other police officials in connection with patrol duty, Muhammad Rafique (P.W.1) appeared before him and produced written application (Exh.PA) which was sent to police station through Muhammad Sadiq 853/C for formal registration of the F.I.R. (Exh.PA/1). Usually, written application is submitted at the Police Station for registration of the F.I.R. And if the complainant comes across a Police Officer outside the Police Station, then his statement is recorded by the Police Officer, but, in the instant case surprisingly, the written application which, as per Muhammad Rafique (P.W.1), was written in the presence of the police officer, was submitted to Muhammad Afzal Khan S.-I. (P.W.13) when he was on patrol duty. P.W.13 has further stated that the dead body was despatched from the spot to the mortuary on a tractor trolley at 2/3-00 a.m. (night) on 9-3-2002 through Allah Ditta constable (P.W.11). He has also stated that Okara mortuary may be at a distance of fifteen kilometers from Renala Khurd, which is connected with a metalled road and place of occurrence is also connected with Renala Khurd with metalled road. On the other hand, Allah Ditta (P.W.11) stated that he reached the mortuary at about morning Azan time, whereas, Dr. Muhammad Ashraf (P.W.7) stated that application for post-mortem examination (Exh.PH), on the dead body of Muhammad Farman was marked to him by the Medical Superintendent, DHQ, Hospital, Okara on 9-3-2002 at 8- 40 p.m. Vide order dated Exh.PH/1 and he started postmortem examination without any delay at 8- 45 p.m. Normally, the time is not mentioned on the application received for postmortem examination but in this case, the Medical Superintendent, DHQ, Hospital, Okara has mentioned the exact time i.e, 8-40 p.m. On the application which was submitted by Muhammad Afzal Khan, S.-I.
(P.W.13) for postmortem examination. Now the question arises that if the dead body was present in the mortuary at morning Azan time as stated by Allah Ditta, constable (P.W.11), then why the postmortem examination was not conducted and why the Medical Superintendent, DHQ, Hospital, Okara has mentioned time on the application as 8-40 p.m. Doctor Muhammad Ashraf (P.W.7) has further stated that he started postmortem examination without any delay and even otherwise, there is no reason brought forward by the prosecution for conducting the postmortem examination at 8-45 p.m. On 9-3-2002. Whereas, injured in this case, Javaid lqbal was medically examined on 8-3-2002 at Rural Health Center, Renala Khurd at about 11-30 p.m. By Dr. Muhammad Hassan, (P.W.8).
11. Another very important circumstance in this case is that Javed lqbal injured (P.W.2) was taken to Police Station Saddar Renala Khurd by his father Akbar Ali (given up P.W.), who got recorded a Rappat (Exh.DE) at the police station and the said Javed lqbal while appearing as P.W.2 had admitted that he was taken to the Police Station. However, he has shown his ignorance whether his father made a statement for recording Rappat No,21, available on the record (Exh.DE). The said Rappat (Exh.DE) was proved by Azadar Hussain (P.W-10) who has categorically stated that on 8-3- 2002, he recorded Rappat No,21 (Exh.DE) at 10-05 p.m. On the statement of Akbar Ali (given-up P.W.), which was signed by him (Akbar Ali). He has further stated that he examined Javaid lqbal and prepared injury statement Exh.PK and sent him (Javaid lqbal) to medical officer Rural Hospital Renala Khurd under the custody of Allah Ditta No,137/C. The original report was seen by the learned trial Court and returned. In the said Rappat it is mentioned that Master Abbas and others have injured his son laved lqbal. There is no mention of Farman Ali deceased or the appellants in the said Rappat (Exh.DE) in any context. Injured Javed lqbal was examined on 8-3-2002 at 11-30 p.m. By Dr. Muhammad Hassan (P.W.8) at RHC Renala Khurd, whereas postmortem on the dead body of the deceased was conducted on next day at 8-45 p.m.
12. In this case as per prosecution the main target was Javed lqbal but surprisingly he has not received any fire-arm injury, whereas Farman Ali deceased, who had no concern or enmity with the appellants, received fire-arm injuries and Farman Ali received fire shots from a close range as there is blackening around the wounds. Therefore, considering all aspects of the case, it is held that F.I.R. (Exh.PA/1) was not registered at 1-15 p.m. On 9-3-2002 as being claimed by the prosecution. It was registered later on, so the chances of deliberation and concoction cannot be ruled out. The circumstances also suggest that Javed lqbal was injured in one incident and Farman Ali was murdered in another incident. But, both these incidents have been combined by the prosecution in one F.I.R.
13. The contention of the learned D.P.-G. That statement of Javed lqbal (P.W.2) be accepted as he was injured in the occurrence is not convincing because an injured witness is not necessarily a truthful witness and his testimony is also subject to scrutiny in accordance with the well settled principles of criminal administration of justice. Reliance is placed on Muhammad Pervez and others v. The State and others (2007 SCM R 670) wherein, at page No, 681, it was observed as under:-- It is also a settled law that injuries on a P.W. Are only indication of his presence at the spot but is not informative proof of his credibility and truth."
The presence of the eye-witnesses at the place of occurrence has also become doubtful because of another circumstance. All the eyewitnesses have stated that Farman Ali deceased, after receiving the firearm injuries ran away and fell at a distance of about two acres, whereas Dr. Muhammad Ashraf P.W.7 (who conducted the postmortem examination) has stated that after receiving the injury the deceased was not in a position to runaway, because skull was fractured and brain matter was shattered.
14. Admittedly, it was a night-time occurrence. The complainant Muhammad Rafique (P.W.1) has admitted that there was no moonlight at the time of occurrence and it was a dark-night. The claim of the eyewitnesses, that they witnessed the occurrence in torchs' light, is also not believable because Muhammad Rafique (P.W.1) has admitted that he was not having any torch with him when he met the Investigating Officer on Shergarh Road, where he submitted application for the registration of the F.I.R. Even no torch was produced during the investigation.
15. As far as recovery of pistol from Muhammad Jamil and recovery of Khanjar from Iftikhar Ahmed are concerned, since ocular evidence has not been believed by us, therefore, these recoveries have no value as the same are only corroborative in nature. Reliance is placed on Noor Muhammad v.
The State and another (2010 SCM R 97) wherein, at page No,104, it was observed as under:-- "Even otherwise the recovery of crime empty or rifle with matching report of F.S.L. Is a corroborated piece of evidence, which by itself is not sufficient to convict the accused in the absence of substantive evidence. Reference is invited to ljaz Ahmed v. State 1997 SCM R 1279. It was held in the case of Asadullah Muhammad Ali PLD 1971 SC 541, that corroborative evidence is meant to test the veracity of ocular evidence. Both corroborative and ocular testimony is to be read together and not in isolation. In the case of Saifullah v. The State 1985 SCM R 410, it was held that when there is no eye-witness to be relied upon, then there is nothing which can be corroborated by the recovery."
In this case, the prosecution story is not free from doubts, which in the circumstances of the case does not appear to be probable. If there is a single doubt in the prosecution story, the benefit thereof must be given to the accused not as a matter of grace but as a matter of right. In this context reliance is placed on Muhammad Akram v. The State, (2009 SCM R 230) wherein, at page 236, it was held as under:-- "(13) The nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCM R 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."
16. In the afore-referred circumstances of the case and after having sought guidance from the above case-law, we are of the considered view that the prosecution has failed to prove its case against the appellants beyond any shadow of doubt, therefore, this Criminal Appeal is allowed, the impugned judgment is set aside, the appellants are acquitted of the charges. Appellants Muhammad Aslam and lftikhar Ahmad are on bail and shall be discharged of their bail/surety bonds. The remaining appellants, namely, Muhammad Jamil and Muhammad Asif shall be released, if not required in any other case.
17 The Murder Reference is answered in the negative and the death sentence of appellants Muhammad Jamil and Muhammad Asif is not confirmed.