Manzoor Ahmad Malik, J.--This judgment shall dispose of Criminal Appeal No 283-J/06 (Manzoor Ahmad vs. The State) and Murder Reference No, 131/06 sent by the learned trial Court, for confirmation or otherwise, of the sentence of death awarded to the appellant, as both these matters have arisen out of the same judgment dated 14.02.2006 passed by the learned Additional Sessions Judge, Arifwala, District Pakpattan Sharif, whereby, Manzoor Ahmad (appellant) was convicted, for the murder of Qasim Ali (deceased), under Section 302(b) PPC and sentenced to death with a further direction to pay a compensation of Rs, 1,00,000/- (Rupees one lac only) to the legal heirs of the deceased as provided, under Section 544-A Cr.P.C., in default whereof to further undergo SI for six months.
2. Brief facts of the case, as given by PW-4 Abdul Ghaffar (complainant) 'n the FIR (Exh.PD/1), are that he used to run a PCO shop at Bhatta No, 2 and on the fateful day at about 12.30 p.m., he, alongwith his brother Muhammad Tariq, and one Mushtaq Ahmad, was present at the "Atta Chakki", when, complainant's father Qasim Ali (deceased) was coming from the southern side after getting milk. According to the complainant, when his father reached near the house of one Bashir Ahmad, suddenly, complainant's Behnoi Manzoor Ahmad (appellant) emerged there and raised a Lalkara that today he would take his wife and children alongwith him at any cost followed by repeated Chhurri blows on his father's person which landed on his neck, left flank, left daula, right hand and left arm. As per FIR, the appellant ran away from the spot after brandishing the Chhurri.
The motive stated in the FIR was that 17/18 years prior to the occurrence, marriage of complainant's sister, namely, Mst. Imam Sain, was solemnized with the appellant but she was living in the house of her father for the last about one year on account of her strained relations with the appellant. The appellant wanted to take back his wife and children, but neither complainant's sister nor father agreed to the said demand of the appellant, due to which, the appellant killed Qasim Ali (deceased).
3. After completion of investigation, challan was prepared and submitted before the learned trial Court, copies were distributed to the appellant as required under Section 265-C of the Code of Criminal Procedure, charge was framed, to which, the appellant pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution has produced as many as '09 witnesses during the trial. The appellant, was examined under Section 342 Cr.P.C. He neither produced any evidence in defence nor opted to depose on Oath as required under Section 340(2) Cr.P.C. In an answer to the question "why this case against you and why the PWs have deposed against you", the appellant, in his statement recorded under Section 342 Cr.P.C., stated as under:-- "It is a false case and the PWs are partisan and related inter-se. I am innocent. I am poor person and have been made a escape goat in this case to save the real culprit of this occurrence".
However, after conclusion of trial, the learned trial Court convicted and sentenced the appellant, as mentioned above.
5. Learned counsel for the appellant, in support of this appeal, contends that as per FIR, the occurrence took place at Bhatta No, 2, Fazil Colony, Street No, 1, Arifwala in front of the house of one Bashir Ahmad, whereas, in the Inquest Report (Exh.PJ), prosecution case is altogether different as in the column "brief facts of the case", it is mentioned that on the day of occurrence at 12.30 pm., the complainant, alongwith his real brother Muhammad Tariq and one Mushtaq Ahmad, was present in the house situated at Bhatta No, 2 and his father was also there when the appellant, while armed with a Chhurri, came there and started quarrelling with him (complainant's father). Complainant's father tried to make him understand as to why he (appellant) was teasing his wife and children, upon which, he became angry and gave Chhurri blows on the neck, left flank, right arm (Daula), left hand and left arm and when they tried to apprehend the appellant, he threatened, them with dire consequences and ran away from there, therefore, prosecution's case is of two versions i,e, one given in the FIR and the other narrated in the Inquest Report (Exh. PJ), which makes the case as highly doubtful. Argues that in fact the FIR was recorded after preparation of Inquest Report and even after post-mortem examination of the deceased. While making his submissions with regard to the Site Plan (Exh.PG), learned counsel contends that Point No, 1, in the Site Plan has been shown a place where the appellant started giving Chhurri blows on the person of Qasim Ali (deceased) who (Qasim Ali) ran backward, whereas. Point No, 2 is a place where Qasim Ali (deceased) subsequently fell down on the ground and from where, as per Site Plan, the blood stained earth (Exh.PE) was taken into possession. Explains that there is a difference of about 130 feet between these two points. Further explains that Point No, 3 is a place where the complainant and his real brother Muhammad Tariq (i,e, two real sons of the deceased Qasim Ali), alongwith Mushtaq Ahmad (PW-5), were standing and the distance of Point No, 3 from Point No, 2 is about 88 feet but none of these witnesses made any attempt to save the deceased which is highly improbable.
Further contends that in the FIR it is the case of the prosecution that the occurrence took place in front of the house of one Bashir Ahmad but the house of said Bashir has not been shown in the Site Plan (Exh.PG); that Exh.PE is the recovery memo. which shows that blood stained earth was taken into possession but no place has been mentioned in the said memo; that the recovery of Chhurri (P3), which was taken into possession through Exh. PF, is of no avail to the prosecution, as, there is no report of Serologist on the record to establish that the blood on the Chhurri was of human origin; that even there is a discrepancy in the recovery proceedings of Chhurri because as per Exh.PF, the said recovery was affected on 28th June, 2005 and the word "8" in that memo. has been tampered, whereas, the Site Plan attached with the recovery memo. shows that it was prepared on 29th June, 2005; that even in the recovery memo. of Chhurri (Exh.PF), it is mentioned that the Chhurri (P3) was blood stained; that a real son of the deceased, namely, Tariq has been shown as an eye-witness of the occurrence but he was given up being unnecessary, therefore, an adverse inference be drawn against the prosecution under Article 129(g) of the Qanun-e-Shahadat Order, 1984; that the prosecution has not proved motive by producing any independent witness; that, so much so, neither MA. Imam Sain nor any of her children appeared before the learned trial Court to establish the motive set up by the prosecution; that the ocular account does not inspire confidence and even reasons given by the witnesses, for their presence at the place of occurrence, are not plausible; that both the eye-witnesses are chance witnesses and their testimony cannot be believed and that the prosecution has failed to prove its case against the appellant beyond any shadow of doubt, therefore, the appellant is entitled to acquittal.
6. On the other hand, the learned Deputy Prosecutor General for the State assisted by the learned counsel for the complainant, while vehemently opposing this appeal, contends that the appellant is named in a promptly lodged FIR with a specific role of giving Chhurri blows on the person of Qasim Ali (deceased); that, in order to prove its case, the natural eye-witness account has been furnished by the prosecution which inspires confidence and despite cross-examination the defence could shake nothing from the testimony of the witnesses who are residents of the same vicinity where the occurrence took place; that the PWs had no enmity with the appellant to falsely depose against him during the trial; that the ocular account in this case is supported by the medical evidence; that, even otherwise, in such like cases substitution is a rare phenomenon; that so far as minor contradiction amongst the story given in the FIR and the Inquest Report, is concerned the same is not fatal to the prosecution because it occurred due to lapse on the part of the Investigating Officer; that as far as non-production of a witness mentioned in the FIR is concerned, it is the prerogative of the prosecution to produce as many witnesses as it likes and it is not necessary to produce all the witnesses mentioned in the FIR or calendar of witnesses; that the prosecution has proved its case against the appellant beyond any shadow of doubt and that, the appeal filed by the appellant against his conviction and sentence be dismissed.
7. We have heard learned counsel for the parties at length, have given anxious consideration to their respective arguments and have also scanned the evidence on record with their able assistance.
8. The occurrence in this, as per FIR (Exh.PD/1), look place on 17.06.2005 at about 12.30 p.m., the matter was reported to the police by PW-4 Abdul Ghaffar (complainant) at 1.30 p.m. at Kashmir Chowk through Fard Bayan (Exh.PD), whereas, the formal FIR (Exh.PD/1) was registered on the same day at about 1.45 p.m. while the distance between the place of occurrence and the Police Station was about 01 kilometer.
9. In this case, the most important point, for determination is as to whether the occurrence took place at the place and in the manner as narrated in the FIR? The case of the prosecution in the FIR is that on 17th June, 2005 at about 12.30 p.m., the complainant alongwith his real brother Muhammad Tariq and one Mushtaq Ahmad, were present at Bhatta No 2, Fazil Colony, Street No 1 at "Atta Chakki', when, complainant's father Qasim Ali (deceased) was coming from the Southern side after getting milk. According to the complainant, when his father reached near the house of Bashir Ahmad, suddenly, complainant's Behnoi Manzoor Ahmad (appellant) emerged there and raised a Lalkara that today he would take his wife and children alongwith him at any cost which Lalkara was followed by repeated Chhurri blows on his father's person, which landed on his neck, left flank, left daula, right hand and left arm. According to the FIR, Qasim Ali (deceased) died on the way to hospital, but, the story given in the Inquest Report (Exh.PJ), in the column "brief facts of the case" is that on the relevant day and time, the "complainant alongwith his real brother Muhammad Tariq and Mushtaq were present in the house and complainant's father Qasim Ali (deceased) was also there, when, suddenly, Manzoor Ahmad (appellant), armed with a Chhurri, came there and started quarrelling with complainant's father Qasim Ali (deceased). The deceased tried to beseech the appellant and asked him as to why he used to tease his daughter and her children, upon which, the appellant got annoyed and suddenly gave repealed Chhurri blows which landed on his neck, left flank, right daula, left arm and left arm and when the PWs tried to apprehend him; the appellant extended them threats of dire consequences and ran away from the spot. Thereafter, Qasim Ali (deceased) was shifted to the Civil Hospital, Arifwal but he succumbed to the injuries.
10.PW-9 Muhammad Hussain SI has stated before the Court that, firstly, he recorded statement of PW-4 Abdul Ghaffar (complainant) and then prepared the Inquest Report (Exh.PJ) but the situation appears to be otherwise. Had he recorded complainant's statement first and thereafter prepared the Inquest Report (Exh.PJ) then the facts, as mentioned in the Inquest Report, must have been consistent with the story as narrated in the FIR, therefore, it can safely be concluded that the Inquest Report (Exh.PJ) was prepared first and thereafter statement of the complainant (Exh.PD) was recorded. Even otherwise, the story narrated in the FIR by PW-4 Abdul Ghaffar (complainant) does not inspire confidence. The place of occurrence is neither the residence nor business place of the eye-witnesses (PW-4 Abdul Ghaffar and PW-5 Mushtaq 'Ahmed) and the reason given by them for their presence at the place of occurrence, is that they were present at "Atta Chakki" but PW-4 has himself admitted in his cross-examination that on the day of occurrence 'Due to Friday, the floor chaki was closed", therefore, presence of the both the eye-witnesses at the closed 'Atta Chakki", as claimed by them, is neither natural nor probable. Moreover, two real sons, alongwith one other person, were watching their father when he was being by injured the appellant with Chhurri. It is the case of the prosecution that the appellant started causing Chhurri blows to the deceased at Point No, 1 of the Site Plan (Exh.PG), upon which, the deceased started running backwards and reached at Point No, 2 and on the way the appellant gave injuries to the deceased while distance from Point No, 1 to Point No, 2 is about 131 feet and Point No, 3 is the place where the witnesses were allegedly standing which is at a distance of about 88 feet from point No,
2. In our view, they could have easily cover the distance in question during the course of infliction of injuries to their real father, but, surprisingly, they did not make any effort to save the life of their father which act of the witnesses is against the normal human conduct. Apart from above, in Exh.PE, which is a recovery memo. of blood stained earth, there is no mention of the place wherefrom it was taken into possession. The contention of the learned counsel for the appellant that the FIR was registered after preparation of Inquest Report (Exh.PJ), appears to be correct because the story given in the FIR and in the Inquest Report is altogether different. Therefore, for afore-referred reasons, we are not going to believe statements of both these witnesses. It is settled law that to believe or disbelieve a witness all depends upon the intrinsic value of his statement. It is also not the universal principle that in every criminal case, an interested witness shall be disbelieved or disinterested witness shall be believed. It is not the person but the statement of that person which is to be seen and adjudged by the Court. In this regard reliance is placed on Abid Ali and 2 others us. The State (2011 SCM R 208), wherein, at Page 216, the Hon'ble Supreme Court of Pakistan, has been pleased to hold as under:-- "21. To believe or disbelieve a witness all depends upon intrinsic value of the statement made by him. Even otherwise, there cannot be universal principle that in every case interested witness shall be disbelieved or disinterested witness shall be believed. It all depends upon the rule of prudence and reasonableness to hold that a particular witness was present on the scene of crime and that he is making true statement. A person who is reported otherwise to be very honest, above board and very respectable in society if gives a statement which is illogical and unbelievable no prudent man despite his nobility would accept such statement.
22. As a rule of criminal prudence, prosecution evidence is not tested on the basis of quantity but quality of the evidence. It is not that who is giving the evidence and making statement; what is relevant is what statement has been given. It is not the person but the statement of that person which is to be seen and adjudged".
11.As far as recovery of Chhurri (P3) is concerned, it has been noted that even in the recovery memo. (Exh.PF) it is not mentioned that the Chhurri was blood stained. So much so, there is over- writing on the date of recovery coupled with the fact that report of Serologist is not available on the record to show that the blood on the Chhurri was of human origin; therefore, recovery of Chhurri is of no avail to the prosecution.
12.We have noted that a specific motive has been alleged by the complainant in the FIR which is to the effect that 17/18 years prior to the occurrence, marriage of complainant's sister, namely, Mst.
Imam Sain, was solemnized with Manzoor .Ahmad (appellant) but she was living in the house of her father for the last about one year, on account of her strained relations with the appellant(her husband). The appellant wanted to take back his wife and children, but neither complainant's said sister (appellant's wife) nor father (Qasim Ali deceased) agreed to send them with the appellant due to which the appellant has killed Qasim Ali (deceased), but surprisingly, neither appellant's wife Mst. Imam Sain nor any of her children have been produced by the prosecution to prove the said factum. So much so, even no question was put by the prosecution to the appellant regarding the said motive while recording his statement under Section 342 Cr.P.C, so, the motive part of the prosecution case also remains un-substantiated.
13.As far as medical evidence is concerned, it may confirm ocular account with regard to seat of injuries, their duration, nature of injuries and kind of weapon, with which those injuries were caused, but the injuries cannot tell the name of its inflictor.
14.All the above discussed facts and circumstances of the case create doubts in the prosecution case. It is a settled and universally recognized principle of law that conviction must be based on unimpeachable evidence and certainty of guilt and any doubt arising in the prosecution case must be resolved in favour of the accused. At Page 1228 of the judgment reported as Muhammad Khan and another vs. The State (1999 SCM R 1220), the August Supreme Court of Pakistan, has laid down the following principle:-- "15. It is an axiomatic and universally recognized principle of law that conviction must be founded on unimpeachable evidence and certainty of guilt and hence any doubt that arises in the prosecution case must be resolved in favour of the accused. It is, therefore, imperative for the Court to examine and consider all the relevant events preceding and leading to the occurrence so as to arrive at a correct conclusion. Where the evidence examined by the prosecution is found inherently unreliable, improbable and against natural course of human conduct, then the conclusion must be that the prosecution failed to prove guilt beyond reasonable doubt. It would be unsafe to rely on the ocular evidence which has been molded, changed and improved step by step so as to fit in with the other evidence on record. It is obvious that truth and falsity of the prosecution case can only be judged when the entire evidence and circumstances are scrutinized and examined in its correct respective".
It is also settled by the Apex Court of the country that in case of doubt, its benefit must go to the accused not as a matter of grace but of right. The same proposition came up for consideration in the case reported as Muhammad Akram vs. The State (2009 SCM R 230), wherein, at Page 236, the Hon'ble Supreme Court of Pakistan, 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".
(emphasis supplied)
In Ayub Masih bs. The State (PLD 2002 Supreme Court 1048), at Page 1056, while quoting a saying of the Holy Prophet (PBUH) that "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent", and making reference to the maxim, that "it is better that ten guilty persons be acquitted rather than one innocent person be convicted", the learned Apex Court has been pleased to observe 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 us. Mushtaq 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".
(emphasis supplied)
15. After considering all the circumstances, this Court is of the considered view that the prosecution has failed to prove its case against the appellant beyond any shadow of doubt, therefore, this appeal is allowed, the impugned judgment is set-aside and the appellant is acquitted from the charge by extending him the benefit of doubt. He is behind the bars and shall be released forthwith if not required to be detained in any other case.
Murder Reference is answered in the Negative and sentence of death is Not Confirmed.