' MUHAMMAD ANWAARUL HAQ, J.---Abdul Rehman alias Gagi, Abdul Rashid and Muhammad Ishfaq appellants along with Nasir Ali and Saif-ur-Rehman co-accused were tried in case F.I.R. No,465, dated 3-10-2003, registered at Police Station Sadar Samundari, District Faisalabad in respect of offences under sections 302, 324, 148, 149, P.P.C. After conclusion of the trial, learned trial Court vide its judgment dated 29-3-2005 while acquitting co-accused namely Nasir Ali and Saifur-Rehman has convicted and sentenced the appellants as under:-- Muhammad Ishfaq ' Under section 302(b), P.P.C. To 'Death' as Ta'zir for committing Qatl-e-amd of Muhammad Sajjad deceased. He was also ordered to pay Rs,1,00,000 (rupees one hundred thousand only) as compensation to the legal heirs of the deceased under section 544-A, Cr.P.0 .
Abdul Rehman alias Gagi and Abdul Rasheed ' Under section 302(b), P.P.C. To 'Imprisonment for Life' as ' Ta'zir each for committing Qatl-e-Amd of Muhammad Sajjad deceased. They were also directed to pay Rs,50, 000 (rupees fifty thousand only) each as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. Or in default to suffer simple imprisonment for six months each.
2. Feeling aggrieved, the appellants have challenged their convictions and sentences through Criminal Appeal No, 990 of 2005, whereas learned trial Court has transmitted Murder Reference No, 629 of 2005 for confirmation or otherwise of the Death sentence of Muhammad Ishfaq appellant.
Both these matters being integrated are being disposed of together.
3. Succinctly, the case of prosecution in the F.I.R. (Exh.PA/1) is that on 3-10-2003 at about 7-00 pm Muhammad Iftikhar (P.W.10) complainant, Mujahid Ali, Abid Ali and Muhammad Sajjad were taking cold drinks outside the shop of one Muhammad Hussain, Muhammad Sajjad deceased was returning after making a phone call, suddenly, Muhammad Ishfaq armed with pistol 30 bore, Abdul Rashid armed with gun .12 bore, Saif-ur-Rehman armed with pistol .30 bore, Abdul Rehman alias Gagi armed with pistol .30 bore and Nasir Ali armed with gun .12 bore, double barrel emerged from the Baithak of Nasir Ali appellant, Saif-ur-Rehman raised a lalkara that Muhammad Sajjad be taught a lesson for injuring him, then Muhammad Ishfaq fired from his pistol which hit on the chin of Muhammad Sajjad, Abdul Rashid made fire shot with .12 bore gun which hit Muhammad Sajjad at the back of his right ankle and on the right thigh, Abdul Rehman alias Gagi fired from his pistol .30 bore which hit Muhammad Sajjad near his anus, Nasir Ali made successive firing with his gun .12 bore double barrel and raised lalkaras to the effect that if anybody came near, he would be killed.
Upon receipt of those injuries Muhammad Sajjad fell down and died at the spot. It was alleged in the F.I.R. That in result of indiscriminate firing of the appellants one Asif was also injured.
' The motive set-forth in the F.I.R. Was that Muhammad Sajjad a month and a half, prior to the present occurrence, had injured Saif-urRehman for which he nourished a grudge, and he along with his co-accused with a common intention has killed Muhammad Sajjad, by causing him fire- arm injuries.
4. On 3-10-2003, after receiving information about the occurrence, Muhammad Aslam, S-I. (P.W.12) reached at the place of occurrence, recorded oral statement of the complainant (Exh.PA) and sent the same for registration of formal F.I.R.; inspected the dead body, prepared injury statement, inquest report and dispatched the dead body to the mortuary for autopsy. He also sketched site- plan of the place of occurrence without scale, secured bloodstained earth', and recorded the statements of the P.Ws. He also summoned the draftsman who prepared scaled site-plan of the place of occurrence. On 30-11-2003 he arrested Abdul Rehman alias Gagi appellant, who on 11-12- 2003 led to the recovery of two Pistols P-3 and P-5 along with bullets.
5. After completion of investigation, challan against all the accused was submitted before the learned trial Court, charge was framed against them to which they pleaded not guilty and claimed trial.
6. To substantiate the charge the prosecution has examined twelve witnesses in total out of which Dr. Sadiq All Arshad (P.W.4) provided medical evidence, Muhammad Aslam S.-I. (P.W.12) conducted investigation of this case, whereas Muhammad Iftikhar complainant (P.W.10) and Mujahid Ali (P.W.11) have furnished ocular account.
7. On 4-10-2003 Dr. Sadiq Ali Arshad (P.W.4) conducted the post mortem examination on the dead- body of Muhammad Sajjad and observed as under:--
(1) Fire-arm lacerated wound of entry 3 x 2 cm oval in shape on the right upper leg, 4 cm below the root of penis and a lacerated fire-arm wound of exit oval in shape 4 x 3 cm on the right upper leg about 4 cm outer and lower to the wound of entries.,
(2) Fire-arm wound of entry 2 cm x 2 cm rounded in shape on the inner and back side of right lower leg, back on the right knee joint. Blackening was present around the wound.
(3) A lacerated fire-arm wound (grazing) on the right side of upper leg (perinium) 2 cm right from the midline.
(4) Lacerated fire-arm wound of entry 5 x 3 cm on the left back side of chest, 5 cm below the shoulder bone. No blackening was present.
(5) An abrasion 2 x 3 cm, skin deep on the left side of chin, 1 cm outer to the midline.
' In his opinion death was caused due to Injury No, 4 causing damage to both the lungs. All the injuries were ante-mortem. Injury No, 5 was result of fall, rest of the injuries were inflicted by fire- arm weapon.
' The probable time between injury and death was sudden while the time elapsed between death and post-mortem about 14 to 18 hours.
8. The appellants and their co-accused were examined under section 342, Cr.P.C. They denied the allegations and professed their innocence. While answering to question (Why this case against you and why the P.Ws. Have deposed against you?), they replied as under:- ' Muhammad Ishfaq "Due to enmity and to save the skin of actual culprits. The factual position is that the P.Ws Mujahid Ali along with Sami Ullah both, were closely related to the deceased and complainant and on the day of alleged occurrence Mujahid Ali and Sami Ullah fired at deceased and Muhammad Asif, because deceased Sajjad was a notorious and criminal person who was involved in murder, hudood zina and other criminal cases and all his family members were against Sajjad deceased due to his immoral, indecent and criminal activities."
' Abdul Rehman alias Gagi "This is a false case against me. P.Ws deposed against me due to enmity and to save the skin of actual culprits. The factual position is that the P.Ws Mujahid Ali along with Sami Ullah both, were closely related to the deceased and complainant and on the day of alleged occurrence, Mujahid Ali and Sami Ullah fired at deceased and Muhammad Asif, because deceased Sajjad was a notorious and criminal person who was involved in murder, hudood zina and other criminal cases and all his family members were against Sajjad deceased due to his immoral, indecent and criminal activities."
' Abdul Rashid appellant adopted almost the same plea as taken by his co-accused Muhammad Ishfaq.
' Neither the appellants made statements under section 340(2), Cr.P.C. Nor they produced any evidence in their defence. Learned trial Court vide its judgment, dated 29-3-2005 found the appellants guilty and convicted and sentenced them as mentioned above, hence, these matters before this Court.
9. The learned counsel for the appellants, in support of this appeal, contended that there is a conflict between ocular account and the medical evidence because as per the allegation of the eye-witnesses the deceased received injury on his left flank whereas there is no injury on the flank rather injury is on the backside of the deceased; that there is a specific attribution to Saif-ur- Rehman co-accused of the appellant (since acquitted) that he fired with his pistol and the bullet hit on the chin of the deceased whereas in the Post-Mortem Report (Exh.PB) injury No,5 on the chin is result of fall; that as per site-plan the assailants were at a distance of 13 feet from the deceased whereas there is a blackening around injury No, 2 in the post-mortem report; that as per the site- plan Exh.PF there was insufficient light at the time of occurrence, as only one bulb has been shown in the site plan that too at a distance of 79 feet from the place of occurrence; that as per F.I.R. And the statement of the eyewitnesses one Asif was injured in this, occurrence but he never appeared before the learned trial Court to support the allegation levelled by the complainant; that prosecution did not produce even the MLR of said Asif; that the best evidence available with the prosecution has been withheld, as such a presumption under Article 129(g) of Qanun-eShahadat Order, 1984 is to be drawn against the prosecution; that no crime-empty was recovered from the spot, therefore, recovery of two pistols at the instance of Abdul Rehman alias Gagi is of no avail to the prosecution; that Muhammad Ishfaq has been attributed an injury with the pistol at the flank of the deceased and if at all that is Injury No4, its dimension is 5 cm x 3 cm which clearly suggests that this injury cannot be caused with a pistol that doctor (P. W.4)- during the cross-examination has admitted that two metallic pieces were recovered from the dead body but these led were not sent to the Fire-arm Expert; that four persons namely Abdul Rehman alias Gagi, Abdul Rashid, Muhammad Ishfaq and Saif-ur-Reliman (acquitted co-accused) fired at the deceased with different weapons and even specific injuries were attributed to each of the four persons but Saif- ur-Rehman was acquitted by the learned trial court and against his acquittal no appeal has been preferred either by the State or the complainant and if this evidence is disbelieved qua Saif- urRehman it cannot be believed qua the appellant unless there is a strong and independent corroboration which is not available in this case; that the deceased was a man of questionable character; that motive is double-edged weapon and it can cut both ways; that it is on the record that Sailur-Rehman co-accused who has been acquitted got registered a case against the deceased and Saif-ur-Rehman is business partner of Ishfaq; lastly, the learned counsel for the appellants have vehemently contended that all the accused named in the F.I.R. Except Abdul Rehman alias Gagi were declared innocent by four different Investigating Officers, i,e, Ahmad Khan, S.-I./S.H.O., Masroor Ahmad D.S.P./S.D.P.O., Ghulam Akbar Sial, Inspector 'and Muhammad Aslam, S.- I. And they all concluded that Nash, Ishfaq, Abdul Rashid and Saif-ur-Rehman were innocent, therefore; the appeal be allowed and the appellants be acquitted.
10. On the other hand, learned Deputy Prosecutor-General opposed this appeal on the grounds that the F.I.R. In this case was promptly lodged wherein all the details of incident are mentioned; that the ocular account is furnished by the natural witnesses who were residents of the village where this incident take place and that is also supported by the medical evidence; that both the eyewitnesses are very closely related to the deceased and in this view of the matter substitution of a real culprit with some innocent is a rare phenomenon; that motive has fully been established by the prosecution; that there was sufficient light and the witnesses could have witnessed this occurrence in the light shown in, the site-plan; that opinion of police is not binding on the Court and in proof of their innocence no witness has been produced, therefore, this appeal be dismissed and the Murder Reference be answered in the affirmative.
11. We have heard the learned counsel for the parties at length, have given anxious consideration to their arguments and have also scanned the evidence on record with their able assistance.
12. In this case five persons namely Abdul Rehman alias Gagi, Abdul Rashid, Muhammad Ishfaq, Nasir Ali and Saif-ur-Rehman were implicated. Specific allegation of firing was levelled against Muhammad Ishfaq, Abdul Rehman alias Gagi, Abdul Rashid appellants and Saif-urRehman whereas the allegation against Nasir co-accused was that he also resorted to firing and kept on raising lalkara. However, during the trial Muhammad Iftikhar (P.W.10) had levelled an allegation against Nasir that his fire had injured Asif (not produced). The learned counsel has vehemently contended that this case was investigated by four different police officers and they all have concluded that all the accused named in the F.I.R. Except one Abdul Rehman alias Gagi were innocent. He has referred the statements made by Muhammad Iftikhar (P.W.10) and Muhammad Aslam (P. W.12) who have admitted that accused were declared innocent by the police during all four investigations. The question for determination before us is whether the opinion of police officers regarding guilt or innocence of the accused is relevant and admissible in evidence? We, are of the view that the opinion of the police regarding guilt or innocence of the accused is not admissible in evidence and in holding so we are fortified by the judgment of the Supreme Court of Pakistan in the case of Muhammad Ahmad (Mahmood Ahmed) v. The State (2010 SCM.R 660) where the Hon'ble Supreme Court was pleased to observe as under:-- "It may be mentioned here, for the benefit and guidance of all concerned, that determination of guilt or innocence of the accused, persons was the exclusive domain of only the Courts of law established for the purpose and the said sovereign power of the Courts could never be permitted to be exercised by the employees of the police department or by anyone else for that matter. If the tendency of allowing such-like impressions of the Investigating Officer to creep into the evidence was not curbed them the same could lead to disastrous consequences. If an Investigating Officer was of the opinion that such an accused person was innocent then why could not, on the same principle, another accused person be hanged to death only because the Investigating Officer had opined about his guilt".
13. As far as merits of this case are concerned, it is the case of the prosecution that three appellants along with their acquitted co-accused Sail-ur-Rehman fired at the deceased and had caused injuries to him. It is mentioned in the F.I.R. That the fire shot by Saif-ur-Rehman had hit near the chin of the deceased and stand remained the same by both the eyewitnesses while appearing before the Court as P.W.10 and P.W.11, but the Post-Mortem Examination on the dead body of the deceased reflects Injury No5 was caused by fall. Another important aspect is, blackening around Injury No 2 allegedly caused by appellant Abdul Rashid, whereas site-plan (Exh.PF) shows the distance between the said appellant and the deceased about 13 feet, much beyond the blackening range.
Another lapse in this case is regarding two metallic pieces recovered from the dead body, and then handed over to the police, but these two metallic pieces were not sent to the Forensic Science Laboratory along with two pistols allegedly recovered at the instance of Abdul Rehman alias Gagi appellant for any expert opinion, that could have been a very important piece of evidence in this case.
14. It is settled law that if evidence of the prosecution is disbelieved qua one accused it cannot be believed against the other unless there is a strong and independent corroboration, especially when the witnesses are inimical and interested. In this respect we seek guidance from the judgment reported as Akhtar Ali and others v. The State 2008 SCM R 6 the following principle has been highlighted by the Apex Court:-- "It is settled law that eye-witnesses build to have falsely implicated five out of eight accused then conviction of remaining accused on the basis of same evidence cannot be relied upon without independent corroboration. See Ghulam Muhammad's case PLD 1975 SC 588 Sheral alias Sher Muhammad's case (1999 SCM R 697) and Ata Muhammad's case (1995 SCM R 599). It is also a settled law that credibility of the ocular evidence is not divisible. See Faiz Bakhsh's case (PLD 1959 PC 24), Nadia's case (42 Cr.LJ 53), Muhammad's case (PLD 1954 FC 84), Sher Bahadar's case (1972 SCM R 651) and Muhammad Afsar's case (PLD 1954 FC 171) "
15. As far as recovery of two pistols from Abdul Rehman alias Gagi appellant is concerned, since no empty was recovered from the spot and as such mere report of the Forensic Science Laboratory that the pistols were in working order is of no avail to the prosecution.
16. The motive alleged in the F.I.R. Is that about one and a half month prior to the present occurrence a quarrel took place between Sajjad deceased and Saif-ur-Rehman appellant, therefore, motive set up in the F.I.R. Was directly against Saif-ur-Rehman who has been acquitted by the learned trial Court and no appeal against his acquittal has been filed either by the State or by the complainant party, therefore, the motive in this case cannot be treated as a corroborative piece of evidence against the appellants.
17. As per contents of the F.I.R. One Muhammad Asif was also injured in this occurrence, while appearing in Court Muhammad Iftikhar complainant (P. W.10) has categorically stated that Muhammad Asif also had received injury on his chest and that fire was shot by Nasir acquitted co- accused of the appellants, but surprisingly the whole file is silent about this most important witness, and even his Medico-legal Report is not available on the file and in these circumstances learned counsel for the appellants is rightly of the view that adverse inference within the meaning of Article, 129(g) of Qanun-e-Shahadat Order, 1984 shall be drawn against the prosecution. He has rightly placed reliance upon the case reported as Riaz Ahmed v. The State (2010 SCM R 846) wherein the Honourable Supreme Court has emphasized as under:- "Therefore, his evidence was the best piece of the evidence, which the prosecution could have relied upon for proving the case, but for the reasons best known his evidence was withheld and he was not examined. So a presumption under Illustration (g) of Article 129 of Qanun-e-Shahadat Order, 1984 can fairly be drawn that had the eye-witness Manzoor Hussain been examined in the Court his evidence would have been unfavourable to the prosecution."
18. We are of the considered view that prosecution has miserably been failed to prove its case against the appellants and ocular account is not in line with the medical evidence, even otherwise prosecution has to prove its case beyond any shadow of doubt and if any doubt arises from the circumstances of the case its benefit has to go to the accused. We respectfully refer here the case of Muhammad Akram v. The State (2009 SCM R 230) wherein Hon'ble Supreme Court of Pakistan has emphasized as under:-- "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."
' In another case Ayub Masih 'v. The State (PLD 2002 SC 1048), the Hon'ble Supreme Court of Pakistan has observed as under:- "It is hardly necessary to reiterate that the prosecution is obliged to prove its case against the accused beyond any reasonable doubt and if it fails to do so the accused is entitled to the benefit of doubt as of right. It is also firmly settled that if there is an element of doubt as to the guilt of the accused the benefit of that doubt must be extended to him. The doubt of course must be reasonable and not imaginary or artificial. The rule of benefit of doubt, which is described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim, 'it is better that ten guilty persons be acquitted rather than one innocent person be convicted'. In simple words it means that utmost care should be taken by the Court in convicting an accused. It was held in The State v. Mushtaq Ishtaq Ahmad (PLD 1973 SC 418) that this rule is antithesis of haphazard approach or reaching a fitful decision in a case. It will not be out of place to mention here that this rule occupies, a pivotal place in the Islamic Law and is enforced rigorously in view of the saying of the Holy Prophet (P.B.U.H.) that the mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent."
19. For all what has been discussed above, in our view the prosecution case is full of doubts and the appellants are entitled to the benefit of the same not as a matter of grace but as a matter of right.
Therefore, by extending them benefit of the doubt we, allow Criminal Appeal No990 of 2005, the convictions and sentences recorded by the learned trial Court against Muhammad Ishfaq, Abdul Rehman alias Gagi and Abdul Rashid appellants are set-aside. They are acquitted of the charges levelled against them. They are in jail. They be released forthwith if not required to be detained in any other case.
20. Murder Reference No 629 of 2005 is answered in the Negative and sentence of the death of Muhammad Ishfaq is Not Confirmed.