1. JUDGMENT SARDAR TARIQ, MASOOD, J.---Abdul Latif alias Munna, Ghulam Siddique, Javed alias Shahid and Irshad Hussain alias Tika were tried by the learned Addl. Sessions Judge, D.G.Khan Camp at Central. Jail, D.G.Khan in case F.I.R. No. 86 dated 9-7-2003 registered under sections 392/302, P.P.C. At Police Station Kala District D.G. Khan for' the murder of Abdul Khaliq deceased. The learned trial Judge vide judgment dated 31-1-2005 acquitted Abdul Latif and Ghulam Siddique of the charge and convicted Javed alias Shahid and sentenced him to death whereas learned trial Judge also convicted Irshad Hussain alias Tika and sentenced him to life imprisonment. They both were directs' to pay Rs.50,000 each as compensation to be paid to the legal heirs of the deceased under section 544-A, Cr.P.0. Or in default thereof to further undergo six months' S.I. Each. The benefit of section 382-B, Cr.P.C. Was given to Irshad Hussain. Both the appellants were also convicted under section 392/34, P.P.C. And sentenced to 10 years' R.I each and a fine of Rs.25,000 each or in default, they were directed to further undergo for six months' S.I. Sentences are directed to, run concurrently and benefit of section 382-B, Cr.P.C. Is given to both the appellants.
2. J aved alias Shahid and Irshad Hussain alias Tika filed Jail appeals (Criminal Appeal No. 100 of 2005 and Criminal Appeal No.228 of 2005 respectively against their conviction and sentence whereas the learned trial Court has sent a reference (M.R. No. 95 of 2005) for the confirmation of death sentence of Javed alias Shahid appellant or otherwise. We propose to dispose of all these matters by this single judgment.
2. Brief facts of the case as disclosed by P.W.6 Talib Hussain complainant of F.I.R. Exh.PE/1 are that he was a labourer. His brother Abdul Khaliq used to drive his Car No.7676 RIK as Taxi at Chaudhary Car Stand, Kot Adu. Yesterday at about 8-45 p.m. (night) three persons came at Chaudhary Car Stand and one of them got his name written as Sajjad Hussain son of Khuda Bakhsh caste Ahmadani Baloch resident of Shadan Lund and along with him two persons hire the said car for Shadan Lund at a fare of Rs.200 and departed for the same. His brother Abdul Khaliq did not return till morning and he became worried on which he along with P.Was. Abdul Aziz and Muhammad Ajmal came to Shadan Lund and kept on searching and he came to know at about 4-00 p.m.. That a dead body is lying in the bushes near Shadan Lund Minor Canal, whereupon the complainant along with said P.Was. Reached there and saw the dead body which was of his brother Abdul Khaliq and there were fire arm injuries on the head, chest and abdomen of the dead body. Sajjad Hussain along with his two accomplices had murdered his brother Abdul Khaliq Taxi Driver and while leaving his dead, body at the spot have fled away with the car.
3. After completion of investigation, challan was submitted against the accused persons. Charge was framed, to which, they pleaded not guilty and claimed trial. In order to prove its case, prosecution examined as many as 12 P.Was. In all and also tendered documentary evidence.
3. P.W.1 Muhammad Afzal constable escorted the dead body of Abdul Khaliq to the hospital on 9-7- 2003 for post mortem examination.
4. P.W.2 Dr. Khalil-ur-Rehman's conducted the autopsy on the dead body of Abdul Khaliq 'deceased on 9-7-2003 and found three injuries on his person. In his opinion, all the injuries were ante-mortem and caused by fire arm weapons. Injury No.1 injured brain and Injury No.2 injured right lung and liver (vital organ). Injury No.3 injured small and large intestine leading to haemorrhage and shock consequent upon Injuries Nos.1, 2 and 3 which were sufficient to cause death in the ordinary course of nature. The probable time between injury and death was immediate and between death and postmortem was 18 to 24 hours.
5. P.W.3 Munir Hussain HC chalked out formal F.I.R. Exh.PE/1. He also received sealed parcels containing bloodstained earth and empties and handed over the same to Muhammad Afzal Constable for their onward delivery to the concerned officers.
6. P. W. 4 Muhammad Ajmal identified the dead body of the deceased Abdul Khaliq at the time of post mortem examination. He also testified memos regarding blood-stained earth, two empties.30 bore and last worn clothes of the deceased.
7. P.W.5 Mushtaq Ahmed deposed about hiring of car of the deceased by the accused persons from Chaudhary Car Stand Kot Adu and entering personal particulars of accused Sajjad Hussain in the register at that time.
8. P.W.6 Talib Hussain complainant reiterated the facts of FIR and complaint Exh.PE.
9. P.W.7 Faiz Ahmad is witness of extra-judicial confession made by the accused persons before him.
10. P.W.8 Nazir Ahmed HC deposited parcel of.30 bore pistol in the concerned office.
11. P.W.9 Ghulam Fareed A.S.-I. Partly investigated the case.
12. P.W.10 Ghulam Mustafa S.-I./I.O. Conducted remaining investigation of the case in hand.
13. P.W.11. Hussain Baldish HC executed non-bailable warrant Exh.PK and proclamation Exh.PL issued against Malkha alias Makha accused.
14. P.W.12 Ghulam Farid Patwari prepared scaled site plans Exh.PG, Exh.PG/1 and Exh.PG/2 in the scale of one inch equal to 10 karams.
15. Learned prosecutor gave up P.Was. Abdul Aziz, Khalid Hussain, Muhammad Aamir, Riaz, Muhammad Nawaz, Abdul Majeed, Rabnawaz, Irshad Hussain S.-I. And Muhammad. Bilal A.S.-I. After tendering report of Chemical Examiner Exh.PM, report of Serologist Exh.PO and the report of Forensic Science. Laboratory Exh.PN, learned prosecutor closed the prosecution case.
4. The statements of the appellants under section 342, Cr.P.C. Were recorded. They repudiated the allegations levelled against them. To a specific question as to why this- case is against you and why the P.Was. Have deposed against you, -appellant Javed alias Shahid replied as under:-- "The case was registered against me falsely because the police/ Investigating Officer was grudge against me due to his insult. All the P. Was. Deposed against me due to personal grudge and previous enmity and relationship with each other. "
16. Appellant Irshad Hussain alias Tika in answer to the same question replied as under:-- "The police involved me in this case falsely to depict their efficiency with connivance of P. Was. And P. Was. Deposed against me on the asking of police."
17. Neither the appellants opt to make statements on oath under section 340(2), Cr.P.C. In disproof of the allegations levelled by the prosecution nor produced evidence in their defence.
5. Learned counsel for the appellants contended that Mushtaq Ahmad P.W.5 is the witness of. Last seen. -evidence. Admittedly the accused were not previously known to him and according to him, Javed alias Shahid appellant had entered his name a Sajjad into register, while taking away vehicle and the deceased.. Further contended that according to him, said negotiation regarding fare was fixed in. Presence of Allah Ditta, Rashid and Khalid drivers but no one from the said drivers was produced by the prosecution. Further contended that the accused were not previously known to Mushtaq Ahmad P.W. And in that eventuality, the identification parade was must which was not done in this case and the prosecution has only relied that Mushtaq Ahmad had identified the accused in the court which is no identification in the eyes of law. It is further contended that although, according to Mushtaq Ahmad car of the deceased was taken away but in his statement neither he gave the car number nor its make or colour etc. Further contended that during the trial,.
18. Alleged car was not produced in the court nor anyone identified the same during the trial.
19. It is also contended by the learned counsel for the appellant that two of the accused namely Abdul Latif and Ghulam Saddique had already made extra judicial confession on 5-8-2008 before Abdul Majid and Muhammad Nawaz P.Was. And challan to their extent had already been submitted.
20. Thereafter, there were no compelling circumstances to the appellants for making any extra judicial confession before Faiz Ahmad P.W.7. This evidence was fabricated by the prosecution in order to create evidence in this case, in which there is no direct evidence. Lastly, it is contended that recovery of the car RIK 7676 is not helpful to the prosecution as none of the witnesses had identified the said car to be of the deceased. Surprisingly, according to the prosecution, said car was robbed away by the appellants in this case, but at the time of recovery of the said car, the same was taken into possession under section 550, Cr.P.C. It is also contended that the recovery of alleged pistol from Javed alias Shahid appellant is inconsequential as according to the report of Forensic Science Laboratory one of the crime empty recovered from the spot was not found to have been fired from the said pistol whereas other crime empty was badly rusty as the same Was not having point of identification for comparison, hence, recovery is not helpful to the prosecution. -6. On the other hand, learned Addl. Prosecutor-General for the State opposed the appeal vehemently and contended that there are circumstantial evidence on the file which connects the appellants with the crime. Further contended that evidence of last seen and extra-judicial confession are sufficient for the conviction of appellants and recovery of pistol is a corroboration to the evidence of last seen and extra-judicial confession.
7. We have heard the arguments of learned counsel for the appellants and learned D.D.P.P for the State and have perused the record with their able assistance.
8. There is no direct evidence in this case and prosecution had mainly relied upon the evidence of P.W.5 Mushtaq Ahmad regarding last seen evidence and P.W.7 Faiz Ahmad regarding extra-judicial confession. The prosecution also relied upon the statements of Ghulam Farid A.S.-I. And Ghulam Mustafa 5.-I. Who recovered the Car RIK 7676 under section 550,- Cr.P.C.
21. So far the last seen evidence is concerned, according, to Mushtaq Ahmad. Abdul Khaliq deceased brought one person who told his name as Sajjad Hussain and he got his particulars entered in the register of Muslitaq Ahmad P.W.S. According to Mushtaq Ahmad, said person was not having any I.D. Card and Abdul Khaliq deceased directed Mushtaq Ahmad P.W. To enter the particulars of said Sajjad Hussain in the register and he would back after, satisfying himself from Iqbal Arms Dealers and thereafter the deceased did not come back. Said witness had not stated that in his presence, the appellants sat in the car of the deceased or in his presence they took him to some where.
22. Whatever conversation took place that took place in the office of said Mushtaq Ahmad.
23. The statement of Musthaq Ahmad reveals that the appellants were previously not known to him. It was the duty of the prosecution in the said eventuality to put the appellants in identification parade test. In this case, no identification parade was held in presence of Magistrate through Mushtaq Ahmad P.W., to ascertain whether the witness can identify the culprits who were seen by him while going along with the deceased.
24. In this case, it was the duty of the Prosecution to arrange for the said identification parade.
25. Identification is necessary in criminal cases to ascertain' whether the witness can identify the culprits who were allegedly seen by him while going along with the deceased. One of the conditions in said test is that before the said test, the witness had no occasion or opportunity to see the culprits. This condition is first and foremost so as to give strength to the identification test but said strength cannot be given to the identification of the accused In the court for the simple reason that the possibility of seeing of the said accused in the court before the said identification cannot be ruled out. It is also a fact that there is delay in disposal of criminal cases for various reasons. Even if witnesses are present on the dates of hearing cases are adjourned for numerous reasons, therefore, sanctity is attached to the identification test held in presence of the Magistrate in accordance with law and guideline given by the Superior Courts in various judgments. The said sanctity cannot be attached to the identification test held in the court because 'there are many chances of the witnesses seeing the accused during investigation and during the proceedings of the trial. Identification of an accused produced as an accused months after to the event could not satisfy the requirements of law for proving the identity of the culprit. In this case, appellants were arrested on 28-10-2003 and Mushtaq witness identified them in the court on 8-7-2004 after more than 8 and half months and during this period, accused must have been produced in the court as required under section 344, Cr.P.C. And there was chance for the witness to see the accused. So evidence of last seen is not confidence-inspiring without any legal identification parade.
26. Since, the accused was not known to the witnesses, test identification parade was absolutely necessary which was never arranged. The identification of the appellant by the witnesses in the Court was absolutely useless because they were the only accused persons in custody before the Court and witnesses had seen them several times during the investigation and on the dates of hearing in the Court.
27. Even otherwise, according to Mushtaq Ahmad, accused had made entries in his register, the said register was never produced by Mushtaq Ahmad in the court. Prosecution can easily prove the writing of the accused by sending the same to the Hand-writing Expert for comparison but even this task was not done by the prosecution. P.W.5 Mushtaq Ahmad had not mentioned in his statement in the court, the registration number of the taxi car owned by the deceased nor he gave the make, colour or model of the-said vehicle. Even during investigation or trial, he did not identify the said vehicle. No identification memo. Was prepared during the investigation. During the trial, the said taxi car was not produced nor was got identified by the witnesses. So, it was not safe to rely upon the statement of Mushtaq Ahmad P.W.5 in the case.
9. According to prosecution case, on 28-10-2003, when the Investigating Officer of this case was on patrolling, he received spy information that five persons were present in a car near P.L Mundhi Wala with intention to commit dacoity. He along with other police officials reached there and apprehended, the appellants Javed alias Shahid along with three others namely Sadiq Hussain, Ghulam Hussain and Irshad Hussain alias Tika whereas one Juma fled away. He took into possession the Car No.RIK 7676 under section 550, Cr.P.C. Pistol P-4 was also recovered from the possession of the appellant Javed. Although, a gun.12 bore was also shown to have been recovered from Irshad Hussain but the same is not case property of this case. Ghulam Mustafa S.-I. Was Investigating Officer of this case. He was aware of the fact that this car was the case property of this case and according to the prosecution story mentioned in the F.I.R. The said car was owned by Abdul Khaliq deceased but surprisingly on 28-10-2003, he took into possession the said car under section 550, Cr.P.C. And not as a case property of this case. Ghllam Farid P.W. While making statement gave number of the said Car, RIR-2676 whereas the I.O. Gave number as RIK-7676.
28. Recovery of the said car is not helpful to the prosecution as the said car was never produced in the court by the prosecution, when the evidence of the witnesses was recorded. During investigation, the said car was not got identified by the complainant and other P.Was. And it was not ascertained whether the said car was owned by Abdul Khaliq deceased or not. No documents regarding ownership of said Car was ever produced during the investigation or trial. Even the I.O. Had not bothered to contact registration authority to ascertain the ownership and possession. Of the said vehicle. Contradiction between Ghulam Farid A.S.-I. And Investigating Officer also negate. The prosecution story regarding the recovery of said vehicle. So the recovery of the said vehicle cannot connect the appellant with the crime. Non-production of the said vehicle in the Court indicates that fictitious proceedings were done regarding the recovery of the said vehicle.
29. So far recovery of pistol P-4 from Javed alias Shahid along with four live cartridges is concerned, these are inconsequential as according to the report of Forensic Science Laboratory one of the said' crime empty was not found to have been fired from the pistol.30-bore whereas the other crime empty was not having point of identification for comparison. Hence, recovery is inconsequential as the same cannot connect the appellant Javed alias Shahid with the crime.
30. Rather the report of FSL negates the story of prosecution as none of the empties recovered from the spot was found to have been fired from the pistol.30 bore allegedly recovered from the appellant Javed.
31. The next evidence which was led by the prosecution is the statement of P.W.7 Faiz Ahmad regarding extra-judicial confession of the appellants and Mukhtar alias Mulka. According to him, firstly Irshad Hussain came to him and Rabnawaz and made confession. After some time, another person came and disclosed his name as Javed alias Shahid and made confession, Lastly, it is mentioned that Mukhtar also came and made confession. Although, said witness tried to convince that the appellants had made extra judicial confession separately but during cross-examination, he stated that when Javed came Irshad was already present there and when Mukhtar. -alias Mulka came, they both were present there. It was a blind murder and there was no direct evidence. The prosecution in this case had earlier challaned Abdul Latif and Ghulam Saddique accused on the basis of their extra judicial confession before Abdul Majid and Rabnawaz. There was no occasion for the appellant to make extrajudicial confession. The prosecution has failed to explain as to why appellants have confessed their guilt before the witnesses in absence of any direct evidence against them. It is not understandable that why accused could create evidence against them in the form of extra judicial confession in absence of any direct evidence especially when two of the accused had already been challaned and there was no direct evidence against the appellants.
32. Nawaz earlier witness of extra judicial confession regarding Abdul Latif etc. Is 'Malair' of the deceased. Said Nawaz is the neighbourer of Faiz Ahmad P,W.7.
33. It is not mentioned in the statement of P.W.7 Faiz Ahmad whether the accused were known to him prior to the occurrence rather it is mentioned by this P.W. In his statement that another person came and he disclosed his name as Javed alias Shahid. This fact indicates that accused were not known to the P.Was. In this eventuality, identification parade was must, which was not arranged in this case. P.W.7 Faiz Ahmad even did not identify the appellants in the Court nor he stated that the accused are present in the Court. It is not believable that the accused would made extra judicial confession before stranger, having no influence upon the complainant party. There is no reason on the file why these appellants made extra judicial confession before them. Nothing is on the record to show whether these P.Was. Had any influence upon the complainant party so that they could assert influence for compromise. Admittedly, the alleged extrajudicial confession was made after two months of the occurrence and it cannot be believed that the accused/appellants will choose these witnesses after about two months of the occurrence for making extrajudicial confession when there was no direct evidence against them: It is also not believable that they will create any evidence themselves when there is no cogent evidence present against them and there was hardly any need to make such statement. It is also not explained by the prosecution that after two months what actually prompted the appellants to make extra-judicial confession. Normally, police used to create such type of evidence of extra judicial confession when there is no other evidence on the file to connect the accused.
34. The conduct of the witnesses is also objectionable as they did not try to apprehend the appellant then and there. They even did not try to raise hue and cry in order to attract the people to apprehend the appellants. It is also a circumstance that the other witness namely Rabnawaz was not produced by the prosecution. So, the statement of Faiz Ahmad is also not corroborated by his companion.
35. These P.Was. Did not contact the police immediately to inform the police regarding the said confession. According to the said witness, he had called these appellants on the following day but he did not inform the police that the accused will come on the following day and they should come and arrest them. Rather he kept mum for nine days and his statement was recorded after nine days of the alleged extra-judicial confession. The courts always considered the delayed statement doubtful because delayed statement indicate that till that time, the witness had nothing to say regarding the said piece of evidence. This court and apex Courts never considered delayed statement as confidence inspiring. Said extra-judicial confession remained uncorroborated by any piece of evidence. There is no corroboration available on the file to this extra-judicial confession.
36. Due to the above mentioned discussion, it is apparent that this evidence of extra judicial confession was created subsequently in this case when no direct evidence was available. Even otherwise, the said weak piece of evidence is not corroborated by any of cogent or legal evidence.
37. So, this piece of evidence is not confidence-inspiring and is not believable: 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, its benefit has to be given to the accused against whom, there is no corroboration as in the present case. Reference can be given to the basic judgment reported as Muhammad Luqman v. The State (PLD 1970 SC 10).In which it is held that:-- "It may be said that a finding of guilt against an accused person can not be based merely on the high probabilities that may be inferred from evidence in a given case. The finding as regards his guilt should be rested surely and firmly on the evidence produced in the case and the plain inferences of guilt that may irresistibly be drawn from that evidence. Mere conjectures and probabilities cannot take the place of poof. If a case were to be decided merely on high probabilities regarding the existence or nonexistence 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."
38. In the case cited as Tariq Pervaiz v. The State (1995 SCM R 1345), it is observed that:- "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 doubts. If there is a J 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".
10. From the above mentioned circumstances, we observe that there is no legal evidence against the appellants on the prosecution is full of doubts and the file and the evidence produced by the conviction cannot be sustained on the said evidence. It is settled principle of law that benefit of doubt if arises should have been given to the accused as a matter of right and not as a matter of grace or concession. In this case, there is no direct evidence and there are many circumstances discussed above which creat serious doubt regarding the veracity of the prosecution case.
39. Consequently, we allow these appeals, set aside the conviction and sentence of the appellants passed by learned trial court and acquit them while extending benefit of doubt. They are directed to be released from jail forthwith, if not required to be detained in any other case. The death sentence of Javed alias Shahid appellant is not confirmed.
11. Murder Reference No.95 of 2005 is answered in Negative..