' MUHAMMAD ANWAR BHAUR, J.--- Shafique Shah son of Bashir Shah, Rang Shah and Shoqeen Shah alias Shaeel Shah sons of Yasin Shah were tried by learned Additional Sessions Judge, Pattoki, District Kasur for the murder of Atta Muhammad Shah deceased, real brother of Muhammad Rafique complainant in case F.I.R No,205, dated 10-7-2000, registered under section 324/34 P.P.C.
(later on converted into 302/34, P.P.C.) with Police Station Sarai Mughal, District Kasur. The learned trial Judge by virtue of his judgment dated 30-9-2003 found Shafique Shah and Rang Shah guilty of the said charge, convicted them under section 302(b)/34, P.P.C. And sentenced them to death and life imprisonment, respectively, with further direction to pay a sum of Rs,1,00,000 each as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. Or in default of payment thereof to undergo simple imprisonment for six months each. The said learned Judge by giving benefit of doubt to Shoqeen Shah alias Shaeel Shah acquitted him of the charge.
2. The convicts, namely Shafique Shah and Rang Shah (hereinafter to be called as the appellants) by filing Criminal Appeal No,1751 of 2003 have called in question the convictions and sentences awarded to them through the impugned judgment, whereas the learned Additional Sessions Judge has sent Murder Reference No,859 of 2003 seeking confirmation or otherwise of the death sentence awarded to Shafique Shah-appellant. We propose to dispose of both these matters together through this single judgment.
3. Occurrence in the instant case had taken place on 3-7-2000 at 5/6.00 p.m., within the revenue estate of Chak Chela, situate at distance of ten miles from Police Station Sarai Mughal, District Kasur and the matter was reported by Muhammad Rafique, brother of Atta Muhammad Shah deceased by making an application (Exh.P.D.) to the S.H.O. Of the said Police Station on 10-7-2000 and on receipt thereof Qasim Masih, A.S.-I., drew up formal F.I.R. (Exh.P.D./1) at 5-45.p.m. Without any addition or alteration on his part.
4. Prosecution story as enumerated in the F.I.R. (Exh.P.D./1) was that Muhammad Rafique complainant is resident of Chak Chela and is an agriculturist by profession; on 3-7-2000, at about 5/6.00 p.m., his brother Atta Muhammad Shah was picking up the peddy crop; the appellants armed with a .12 bore double barrel gun and a carbine, respectively arrived there; Shafique Shah- appellant fired a shot through his gun, which hit Atta Muhammad Shah underneath his umbilicus; Rang Shah also made fire through his carbine striking Atta Muhammad Shah on upper part of his left arm, due to which his left arm was fractured; Rang Shah-appellant again fired a shot, which hit Atta Muhammad Shah on the lower part of his left elbow, who on receipt of injuries fell prone; on hearing the report of firing , the complainant along with Dost Shah P.W. Reached the spot and witnessed the occurrence; the appellant decamped from the scene while making aerial firing.
' The reason behind the outbreak of the incident was that the appellants had a suspicion that the complainant and his brother Atta Muhammad had passed on information to the Police of Nawan Kot, Lahore for their arrest and that the appellants had caused injuries to the deceased on the abetment of Shoqeen Shah (since acquitted). The complainant took his brother Atta Muhammad in injured condition to Civil Hospital, Pattoki, but due to seriousness of the injuries referred him to Jinnah Hospital, Lahore. According to the complainant, he could not report the matter in time because he remained busy in the treatment of his brother. Initially, the F.I.R. Was registered under section 324/34, P.P.C. But on the demise of Atta Muhammad Shah, section 302, P.P.C. Was added to the list of offences.
5. Succeeding registration of the case, investigation into the crime commenced and after completion thereof, the appellants along with their co-accused (since acquitted) were challaned to Court.
6. On receipt of challan, the learned trial Judge completed all legal formalities and framed charge, which was put to the appellants and their co-accused, who pleaded not guilty and claimed to be tried. The prosecution in order to prove its case got examined as many as eighteen witnesses, namely, Muhammad Azeem, A.S.-I. (P.W.1), Dr. Abdul Hameed (P.W.2), Muhammad Rafique Shah- complainant (P.W.3), Din Muhammad, Draftsman (P.W.4), Qasim Masih, A.S.-I. (P.W.5), Dost Muhammad (P.W.6), Maqbool Ahmad, constable (P.W.7), Karamat Ali (P.W.8), Muhammad Amin, A.S.-T. (P.W.9), Muhammad Akram Shah (P.W.10), Muhammad Anwar, MHC (P.W.11), Muhammad Jameel, A.S.-I. (P.W.12), Dr. Waseem Sadiq Awan (P.W.13), Bashir Ahmad, constable (P.W.14), Muhammad Aslam, S.-I. (P.W.15), Akbar Ghani, Ex-A.S.-I. (P.W.16), Ejaz Ahmad, S.-I. (P.W.17) and Imtiaz Ahmad Bhalli, D.S.P. (P.W.18). Learned prosecutor after giving up rest of the witnesses being unnecessary and after tendering in evidence reports of the Forensic Science Laboratory (Exh.P.Q.
And P.R.) closed the prosecution case.
7. After closure of prosecution evidence, all the incriminating material was put to the appellants and their co-accused under section 342 Cr.P.C. To seek their explanation with regard to the accusations brought against them and also to know their version. They claimed their absolute innocence in the matter and alleged their false involvement in the case due to Baradari faction; that the witnesses are related inter se and that they were not present at the spot. The accused opted not to make statements on oath under section 340(2), Cr.P.C. In disproof of the allegations levelled against them, however, initially they opted to adduce evidence, but later on they stated that since the prosecution has produced reports of Jinnah Hospital, Lahore (Exhs.P.H. And P.J.), so they do not want to produce evidence in defence.
8. Upon culmination of trial, the learned trial Judge proceeded to pronounce verdict of guilt against the appellants and punished them as aforementioned.
9. Learned counsel for the appellants in support of this appeal contended that this occurrence as a matter of fact was unseen and the presence of the eye-witnesses at the spot is not proved as the F.I.R. Was lodged in this case on 10-7-2000, whereas according to the F.I.R. The occurrence took place on 3-7-2000 and the reason advanced by the complainant in his application (Exh.P.D.) that he remained busy in the hospital with the treatment of his brother is neither probable nor believable; that presence of the complainant is not proved at the spot from the fact that he claims that he took his brother in injured condition to Civil Hospital, whereas Medico-legal Report (Exh.P.B.) shows that the injured (Atta Muhammad Shah) was brought by one Mehboob Ahmad, constable; that another reason which makes the presence of the complainant doubtful at the place of occurrence is that the motive as alleged by the prosecution was against the complainant as well and had he been present there, he would have met the same fate; that even place of occurrence is not established because no empty or even blood-stained earth was taken into possession from the place of occurrence and the prosecution has not been able to prove that the said place was actually in possession of the complainant or his deceased brother; that as per F.I.R. The occurrence had taken place at 5/6-00 p.m., whereas the injured was medically examined at 8-45 p.m., whereas distance between the place of occurrence and the hospital was about fifteen kilometers; that the deceased remained alive for about ten days after receiving injuries, but his statement was not recorded by the police; that motive set out by the prosecution is not proved because neither any detail of the occurrence nor any number of F.I.R. Was given wherein the appellants were involved and the complainant and his brother provided information to the police for their arrest to the police; that the site plan does not support the ocular account furnished by the witnesses as the same was not prepared as per pointation of the eye-witnesses and it has been admitted by Muhammad Rafique Shah (P.W.3) and Dost Muhammad (P.W.6) that it was prepared even without scale because no distance between different points is mentioned in the site plan; that there are material contradictions between the statements of the eye-witnesses and the same is pack of lies as they have given the different distances between the deceased and the accused persons; that recovery of the weapons at the instance of the appellants is of no avail to the prosecution as admittedly no empty was recovered from the spot and the report of Forensic Science Laboratory was that the weapons were in working order. In support of their contentions, learned counsel for the appellants placed reliance on the cases of Imran Ashraf and 7 others v. The State 2001 SCM R 424, Noor Muhammad v. The State and another 2010 SCM R 97 and Muhammad Saleem v. The State 2010 SCM R 374.
10. Conversely, learned Additional Prosecutor-General Punjab while opposing this appual argued that the matter was timely reported to the Police, which is clear from the fact that the injured was brought to the hospital by a constable, but if no case is registered by the Police, then it is not fault of the complainant; that even delay in lodging the F.I.R. Has been explained in the application (Exh.P.D.) that the complainant was busy in looking after his brother, who was in the hospital in critical condition and firstly the injured was taken to Civil Hospital, Pattoki, and thereafter he was referred to Jinnah Hospital, Lahore, where he remained admitted till 13-7-2000, on which date he ultimately expired because of the injuries he suffered in this occurrence; that it was clear from application (Exh.P.C.) that the injured was not in a position to make any statement; that presence of the witnesses at the place of occurrence is proved; that non-collection of blood-stained earth from the venue of crime can well be explained because the police went to the spot after registration of the case i,e, after seven days, so there was no chance of taking blood-stained earth and similar is the case of empties; that the guns recovered from the appellants cannot eject the empties and that is the circumstance which supports the prosecution case, therefore, non- recovery of empties is not fatal to the prosecution case; that the medical evidence fully supports the ocular account and there is no reason for false implication or substitution of the appellants.
11. We have heard the learned counsel for the appellants as well as the learned Additional Prosecutor-General Punjab for the State at considerable length and have also gone through the record with their able assistance.
12. Occurrence in this case had taken place on 3-7-2000 at 5/6 p.m. And the matter was reported by the complainant (P.W.3) on 10-7-2000 at 4.45 p.m. Besides other contentions raised by the learned counsel for the appellants, the most important point to be considered in this case is as to why the matter was not reported to the police on the day of occurrence i,e, on 3-7-2000. As per complainant's statement while appearing as P.W.3, he took his brother to Civil Hospital, Pattoki for treatment of his injuries, from where he was referred to Jinnah Hospital, Lahore due to his critical condition, where he remained busy in the treatment of his brother (Atta Muhammad Shah, who subsequently died) and got registered the F.I.R. On 10-7-2000 meaning thereby seven days after the occurrence. The explanation offered by the complainant (P.W.3) that since he was busy in taking care of his brother is neither probable nor believable because if he has taken his brother to the hospital, then the doctor, who medically examined Atta Muhammad Shah in injured condition, should have mentioned his name in the relevant column of the medico-legal report, that he was brought by the complainant, but as per Medico-legal Report (Exh.P.B.) the injured was brought in the hospital by one Mahboob Ahmad, constable. The complainant while appearing in Court as P.W.3 tried to explain the delay by stating that he had given the information to the police on the same day, but the police officials, i,e, Muhammad Aslam, S.-I. And Akbar Ghani, A.S.-I. (P.Ws.15 and 16) have categorically stated that the incident was not reported to the police, therefore, the question remains why this incident was not reported to the police for seven days, especially when the complainant, brother of the deceased, claims that he was with the deceased and in his presence the deceased had suffered fire-arm injuries. The explanation offered by this witness that he remained busy in the treatment of his brother, therefore, could not report the matter to the police is neither plausible nor acceptable. For the sake of argument even if the explanation offered by this witness is accepted, then the question arises why the incident was not reported to the police by Dost Muhammad (P.W.6), who also claims that occurrence took place in his presence.
Therefore, in this situation, no reliance can be placed on the statements of the complainant (P.W.3) and Dost Muhammad (P. W. 6) .
13. Even the other circumstance i,e, recovery of weapons of offence, allegedly recovered at the instance of the appellants, is of no avail to the prosecution because no empty was recovered from the spot, therefore, mere recovery of guns is of no consideration in this case.
14. Insofar as contention of learned counsel for the appellants that the occurrence was unseen is concerned, it appears probable from the prosecution's own story, wherein the complainant (P.W.3) and Dost Muhammad (P.W.6) themselves stated that they were attracted to the spot on hearing report of firing, meaning thereby they were not present at the spot at the time when the incident had happened. In these circumstances, it appears that the complainant (P.W.3) with due consultation and deliberation got this case registered after seven days of the occurrence, as such, substitution of the appellants with the accused, who committed the crime in question, cannot be ruled out.
15. Even the motive, alleged by the prosecution, is vague because no details of the case in which the complainant or the deceased provided information to the police for the arrest of the accused are mentioned either in the F.I.R. Or the statements of the eye-witnesses recorded before the trial Court.
16. All these circumstances create doubts in the story narrated by the prosecution. The police is also part of the prosecution and if there was any negligence on the part of the police as pointed out by the learned Additional Prosecutor-General Punjab, then it is the prosecution, which is to suffer. It is settled principle of law that the accused is entitled to even a slightest benefit of doubt and it is for the prosecution to prove its case beyond any shadow of doubt as held by the Honourable Supreme Court of Pakistan in the case of Noor Muhammad (supra). Therefore, in these circumstances, no conviction can be maintained on this type of evidence.
17. For what has been discussed above, we are of the view that the prosecution has failed to prove its case beyond any shadow of doubt against the appellants. In such circumstances, the honourable Supreme-Court of Pakistan in case of Muhammad Akram v. The State 2009 SCM R 230 observed as under:--- "(13) 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."
18. Accordingly, following the principle of law laid down by the Hon'ble Apex Court, we extend the benefit of doubt to the appellants and by setting aside their convictions and sentences acquit them of the charge. They are directed to be released from custody forthwith if not required in any other case. This appeal stands allowed.
18-A. Death sentence awarded to Shafique Shah-appellant by the learned trial Court is not confirmed and Murder Reference is answered in the negative.