SH. NAJAM-UL-HASAN, J.---Muhammad Ramzan, Muhammad Arshad, Maqbool Ahmad and Azhar alias Latoo were tried by the learned Additional Sessions Judge, Sargodha in case F.I.R. No.422 dated 7-11-2003 for the offences under sections 394/324/ 336/302, P.P.C. Registered at Police Station Jhal Chakian, District Sargodha. At conclusion of the trial, the learned trial Court vide judgment dated 30-4-2005 convicted and sentenced the appellants as under:-- MUHAMMAD RAMZAN: Under section 302(b), P.P.C. To suffer death and also to pay Rs. 1,00,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased or in default thereof to suffer six months' S.I.
Under section 324/34, P.P.C. To suffer rigorous imprisonment for ten years and fine of Rs.10,000 or in default thereof to suffer six months' S.I.
Under section 336/34, P.P.C. To suffer rigorous imprisonment for ten years and fine of Rs.10,000 or in default thereof to suffer six months' S.I.
Under sections 394/34, P.P.C. To suffer rigorous imprisonment for ten years and fine of Rs.10,000 or in default thereof to suffer six months' Si.
MAQBOOL, ARSHAD AND AZHAR: Under section 302(b), P.P.C. Imprisonment for life to each of the appellants and also to pay Rs.50,000 each as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased or in default thereof to suffer six months' S.I. Each.
Under section 324/34, P.P.C. To suffer rigorous imprisonment for ten years each and fine of Rs.10,000 each or in default thereof to suffer six months' S.I. Each.
Under section 336/34, P.P.C. To suffer rigorous imprisonment for ten years each and fine of Rs.10,000 each or in default thereof to suffer six months' S.I. Each.
Under section 394/34, P.P.C. To suffer rigorous imprisonment for ten years each and fine of Rs.10,000 each or in default thereof to suffer six months' S.I. Each.
All the sentences of imprisortment awarded to the appellants were directed to run concurrently and benefit of section 382, Cr.P.C. Was also extended to the convicts.
2. Feeling aggrieved by the impugned conviction and sentences Muhammad Ramzan, appellant has filed Criminal Appeal No. 471-J of 2006 while Maqbool, Arshad and Azhar appellants have filed Criminal Appeal No. 4704 of 2006. The learned trial Court has also approached this Court by way of Murder Reference No. 329 of 2005 seeking confirmation of death sentence awarded to Muhammad Ramzan, convict. The complainant has also filed Criminal Revision No. 587 of 2005 for enhancement of sentences awarded to Maqbool, Azhar and Arshad appellants and also the compensation. All these interconnected matters are being disposed of together through this single judgment.
3. The prosecution story as unfolded in the F.I.R. (Exh.PA) is that on the night between 6/7-11-2003 Muhammad Yaqoob Shoaib complainant along with his uncle Muhammad Hussain and cousin Ihsan Ahmad was going to their lands to have a round of irrigation water as their turn of water fell on that night. The complainant was having a Kassi with him whereas Muhammad Hussain and Ihsan Ullah had taken Soties with them. When they reached on the junction of Bhalwal Road, four unknown persons armed with fire arms came out of the garden of Umar Daraz. Out of them one was a tall young man of stout body armed with .12 bore small barrel gun. The second person was also a young man of short height stout body armed with .222 bore rifle. The third one was of tall height stout body armed with pump action. Fourth one was also a healthy person of medium height armed with .30 bore pistol. All of them snatched Kassi and Sotis from the complainant party and took them forcibly in the garden of Umar Daraz where a person tried to open the 'Azar Band' of the Shalwar of Ihsan Ullah on which Ihsan Ullah started running upon which the tall person fired with his gun hitting on his left arm. The person armed with pump action fired at Muhammad Hussain which landed on right side of his chest. The person armed with .30 bore pistol fired at the complainant but missed. On hue and cry of the complainant party Ahmad Yar and Muhammad Ramzan P. Ws. Came to the spot. The accused ran away while seeing them. The complainant along with. P. Ws. Took both the injured persons to Sargodha and after getting Ihsan P.W admitted in Civil Hospital, Sargodha he took Muhammad Hussain to P.A.F. Hospital, Sargodha as he was a P.A.F.
Employee. Later on Muhammad Hussain was shifted to C.M.H. Rawalpindi where he died on the night between 13/14-11-2003.
4. Initially Asmatullah, Sub-Inspector (P.W.16) investigated this case. He inspected the place of occurrence and took into possession a Kassi and two Sotis. He recorded statements of the witnesses thereafter, he reached the hospital and recorded statement of injured Muhammad Hussain. On 14-11-2003 he received information about death of Muhammad Hussain in C.M.H.
Rawalpindi. He reached there and prepared injury statement (Exh.PG) and inquest report (Exh.PH) and dispatched the dead body for postmortem. He searched for the accused but they were not traced out.
5. Muhammad Iqbal Khan, Sub Inspector (P. W.17) arrested the appellants under section 54, Cr.P.C.
And got them sent to judicial lock up for identification parade. On 13-5-2004 he submitted an application for identification parade and on 18-5-2004 identification parade was held. During identification parade the complainant and the other P. Ws. Identified all the four appellants as the culprits and as such came to know about the names of the accused persons as Ramzan, Maqbool, Arshad and Rashid. The person armed with .12 bore pump action who fired on right side of the chest of the deceased was stated to be Ramzan, appellant whereas the person who was armed with .12 bore gun having short barrel and who fired on the left arm of the injured Ihsan Ullah was identified as Maqbool, appellant. The person who was armed with .8 mm rifle was identified as Arshad, appellant and the person armed with .30 bore pistol who had fired at the complainant was stated to be Azhar, appellant.
6. On 6-6-2004, Muhammad Ramzan, appellant made a disclosure and then led to the recovery of .12 bore gun pump action (P.3) and 10 live cartridges (P.4/1-10) from the his residential room which were taken into possession vide recovery memo (Exh.PK). On the same day i.e. 6-6-2004 Maqbool, appellant made a disclosure and then led to the recovery of .12 bore single barrel gun (P.5) and five cartridges (P.6/1-5) which were taken into possession vide recovery memo. (Exh.PL). On 11-6-2004 Azhar, appellant made a disclosure and led to the recovery of .30 bore pistol (P.7) and five bullets (P.8/1-5) which were taken into possession vide recovery memo. (Exh.P.M). On the same day i.e. 1- 6-2004 Muhammad Arshad, appellant made a disclosure and led to the recovery of .8 MM rifle (P.9) and seven bullets (P.10/1-7) which were taken into possession vide recovery memo (Exh.PN).
After completion of investigation he challaned the appellants to Court to face the trial.
7. After framing of charge, the prosecution produced as many as 17 witnesses to prove the charge against the appellants. Out of them Muhammad Yaqoob Shoaib appeared as P.W.11, Ihsan Ullah appeared as P.W.12 and Ahmad Yar appeared as P.W.13 to provide the ocular account whereas Dr. Zahid Mehmood P.W.4, Dr. Muhammad Ajmal P.W.5, Dr. Muhammad Ameen Cheema P.W.6, Dr. Musarrat Hassan Malik P.W.10 and Dr. Brigadier Muhammad Sultan Muzaffar P.W.15 provided the medical evidence. Asmatullah, S.I. (P.W.16) and Muhammad Iqbal Khan, S.I. (P.W.17) proved the investigation.
8. After the prosecution evidence the appellants were examined under section 342, Cr.P.C. They denied and dismissed each piece of prosecution evidence and attributed their false implication by the police to show their efficiency.
9. At the end of trial, the learned trial Court convicted and sentenced the appellants as noted above.
10. Learned counsel for the appellants contends that in the F.I.R. No time of occurrence has been given; it is only mentioned that the occurrence took place on the last night and the case was registered on the next day at 2-50 p.m. So there is unexplained delay of more than 18 hours in lodging the F.I.R.; that the injured was medically examined on the same night i.e. On 6-11-2003 at 9- 15 p.m. But the matter was not reported to the police and was thereafter statedly reported at 2-50 p.m. On the next day after 15 hours of medico-legal-report, such a delay in lodging the F.I.R. Makes the prosecution case highly doubtful in view of the fact that it has also come on record that police station was only 3 kilometers away and was falling in the way to the hospital; that no crime empty was recovered from the place of occurrence; that even blood stained earth was not taken by the police from the place of occurrence so even the place of occurrence is not established from any other material; that the occurrence has taken place in the dark hours of the night and no source of light was given by the complainant in the F.I.R. Although the same was recorded after considerable delay; that while appearing in the Court the witnesses have improved their statements and stated that the complainant was having torch along with Kassi at the time of occurrence and they saw the occurrence in the light of the torch and moon light; no evidence regarding the presence of moon light at the relevant time has been brought on record; it is the prosecution case that the complainant, deceased and witness were going to their field as it was their turn of water on that night but no Wara Bandi or any document in support of their stance has been placed on record; that the motive part is silent and in evidence it has been indicated that the occurrence was the result of robbery but nothing was stolen from the complainant party and resultantly nothing was recovered from the appellants so in absence of any evidence it cannot be established that the occurrence was the result of robbery; that there is nothing on record to indicate that how the appellants were connected in this case; that in the police file the names of the appellants were indicated at early stage of investigation but no evidence in this respect was produced in the Court and now prosecution case is that the investigating officer came to know that the appellants were committing the offence of robberies and dacoities and as such the appellants were arrested and during interrogation they admitted .This occurrence; that after they were sent to judicial lock up they were kept for considerable time and ultimately after nineteen days they were put to identification parade which in the circumstances has lost its efficacy; that no other case was found against the appellants Ramzan and Azhar and as such the involvement of the appellants in this case at the very first instance is without any reason; that so far as Azhar and Arshad, appellants are concerned no injury is attributed to them whereas Maqbool, appellant is only assigned a role of firing on the injured; that there is nothing on record to show as to under what provision of law the injury caused to the injured falls. The doctor P.W. 4 who declared the injury as Itlaf-i-Salahiyyat-i- udw based the same on the finding of Dr. Muhammad Ameen Cheema (P.W.6) whereas P.W.6 has stated that he never declared the injury as Itlaf-iSalahiyyat-i-udw; in this situation the injury on the person of the injured is not proved and as such the convictions under sections 336 and 324, P.P.C.
Are not sustainable; that no robbery has been established and as such section 394, P.P.C. Is not attracted; that the role of firing at the deceased is attributed only to Ramzan, appellant; that contour of accused given in the F.I.R. Do not tally with the description of the accused given by the Investigating Officer at the time of their arrest; the accused were described as unknown in the F.I.R as such their must have been strong evidence to connect the appellants with the commission of crime but the same is lacking in the present case; that identification parade was conducted after 12 days of the arrest of the appellants and such a delay makes the same highly doubtful especially when the appellants raised objection before the Magistrate that they were detained by the police for the last more than 1-1/2 months and had been shown to the witnesses while they were in police custody; that medical evidence does not coordinate with the ocular account; that a wad was found by the doctor who gave medical treatment to the deceased which indicate that fire was made from a very close range which belies the prosecution evidence; that deceased died after seven days of the occurrence and the doctor has also seen infection on the wound so there is a possibility that the deceased might have died because of improper treatment; that in this case the only evidence against the appellant was that of the identification parade and when the occurrence took place at night and description of the accused given in the and statements of witnesses under section 161, Cr.P.C. Did not tally the actual appearance of the appellants, they are not liable to be convicted and are entitled to the benefit of doubt.
11. On the other hand, learned Additional Prosecutor-General assisted by learned counsel for the complainant states that the appellants were duly identified by the witnesses in the identification parade; there is no enmity between the parties and no reason for false implication has come on record; that presence of fire arm injuries corroborate the ocular account; that the place of occurrence is established from the recoveries of Kassi and sotis from the place of occurrence; that there is an injured witness and no reason for disbelieving him has come on record and as such the appellants are not entitled to any leniency.
12. Learned counsel for the complainant while arguing the revision petition for enhancement of sentences states that all the appellants are involved in the case of robbery and murder and as such each of them is liable to death sentence and as such the sentences of life imprisonment to Maqbool, Arshad and Azhar be converted to death.
13. We have heard the arguments of learned counsel for the parties and have also gone through the record. In this case the occurrence has taken place at night. No source of light was described in the F.I.R. Later on while appearing in the Court the witnesses have stated that they saw the occurrence in the light of torch which was available with the complainant and also in the moonlight. No evidence regarding the presence of moonlight has been brought on record. It has been held by Hon'ble Supreme Court in case reported as Muhammad Saleem v. The State (2010 SCM R 374) that improvements made by the witnesses and lacuna filled by the prosecution witnesses creates doubt and the benefit of such doubt must go to the appellants. The relevant portion of the judgment reads as under:- "Incident had taken place at midnight and there was no source of light at that time---Prosecution witnesses in order to overcome the lacuna of absence of light had improved their statements to strengthen the question of identity of accused and fitting in the circumstances of the case--- Accused was given benefit of doubt and acquitted in circumstances."
Nothing was recovered from the appellants during investigation and there is no material except the ocular account to connect the appellants with the commission of crime. No article was robbed.
No crime empty or even the blood stained earth was recovered by the police from the place of occurrence. The F.I.R. Was registered after a delay of 18 hours of the occurrence and after 15 hours of medical examination of injured. No reason for such delay is available. It has been held by Hon'ble Supreme Court in case reported as Mehmood Ahmad and 3 others v. The State and another (1995 SCM R 127) that delay in lodging the F.I.R. Is of great significance.
14. The F.I.R. Was lodged against unknown culprits. Later on the appellants were arrested and identified by the witnesses in the identification parade on 18-5-2004 i.e. After five months of the occurrence. No source for involvement of the appellants in this case has come on record. No previous history of the appellants was produced in the evidence which could have indicated that the appellants were involved in such activities which led to suspicion and their arrest and later on involvement in this case. In the absence of such evidence even the involvement of the appellants at the very first instance remains the question which is un-solved and un-proved.
15. The most important aspect of the case is that in the F.I.R. And statements of the witnesses under section 161, Cr.P.C. Before the police description/contours of each accused was duly mentioned but while appearing in the Court none of the witness described the description of any of the appellants.
The Investigating Officer Muhammad Iqbal Khan (P. W.17) admitted that he mentioned the Hulias of the appellants in the daily diary at the time of their arrest. While comparing both the descriptions; given in the F.I.R. And statements of P.Ws. Under section 161, Cr.P.C. And the one observed by the Investigating Officer at the time of arrest of accused which was duly mentioned in police file and admitted by P.W.17. It is evident that the description given in the F.I.R. Does not tally with the description/Hulia of the appellants. It is mentioned in the F.I.R. And statements of the witnesses before the police that the person who was later on described as Maqbool, appellant was a man of tall height, stout body, a young boy whereas Maqbool, appellant is a man of 65 years of age Sanwla colour' heavy longish face, heavy body: This clearly indicates that the person who was armed with .12 bore gun and fired at the injured Ihsan Ullah was a different man according to the appearance and Hulia described in the F.I.R. And statements of all the witnesses made before the police. Similarly while describing the person who fired at the deceased i.e. Ramzan, appellant it was mentioned in the F.I.R. That he was a tall man, stout body and was having a pump action gun.
Similarly while describing Azhar, appellant he was mentioned as a man of medium height. Ramzan, appellant was of 5-1/2 feet height whereas Azhar, appellant was of 5 feet and 6/7 inches height. In fact Azhar, appellant was taller then Ramzan, appellant in the description given by the Investigating Officer. Even otherwise, there was a prominent scar on the left cheek of Ramzan, appellant which has not been described in the F.I.R. Similar is the position regarding other appellants Azhar and Arshad. Their descriptions do not tally with the descriptions of unknown accused persons mentioned in the F.I.R.
16. In this case the motive, recovery and the medical evidence do not give any kind of support to the ocular account and when the descriptions of unknown accused persons mentioned in the F.I.R.
Do not tally with the descriptions/Hulias of the appellants, the convictions of the appellants on the sole evidence of identification parade which was got conducted after five months of the occurrence and after twelve days of arrest of the appellants makes the prosecution case highly doubtful especially when it was night occurrence. The witnesses have intentionally not given the description of the accused while appearing in the Court although all the four witnesses have fully described the same descriptions of unknown accused in their statements before the police. The person of 65 years of age having healthy body cannot be described by any person to be a young boy stout body as it is described regarding Maqbool, appellant who statedly fired at the injured P.W.
17. In these circumstances, we are of the considered view that the prosecution has failed to bring on record the guilt of the appellants beyond reasonable doubt. It is well settled principle of criminal justice that a single circumstance is sufficient to discredit the whole prosecution case. It has been held by Hon'ble Supreme Court of Pakistan in case reported as Muhammad Akram v. The State (2009 SCM R 230).. The relevant portion of the judgment reads as under:- "Benefit of doubt---Principle---For giving the benefit of doubt it is not necessary that there should be many circumstances creating doubts---Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefit, not as a matter of grace and concession, but as a matter of right.
Benefit of doubt---Principle---In case of doubt, the benefit thereof must be given to accused as a matter of right and not as a matter of grace."
It has also been held by the Hon'ble Supreme Court in case reported as Ghulam Qadir and 2 others v. The State (2008 SCM R 1221) that for the purpose of giving benefit of doubt to an accused person, more than one infirmity is not required, a single infirmity creating reasonable doubt in the mind of reasonable and prudent mind regarding the truth of the charge, makes the whole case doubtful.
We are of the consistent view that the prosecution has not been able to prove the case against the appellants beyond reasonable doubt and there are certain suspicions regarding their involvement in this case. In this situation the appellants are entitled to benefit of doubt as a matter of right. In the given circumstances the conviction and sentences of the appellants are not liable to be sustained and consequently while extending benefit of doubt the conviction and sentences of the appellants are set aside and they are acquitted of the charges. Resultantly Criminal Appeal No. 471-J of 2006 filed by Muhammad Ramzan appellant and Crriminal Appeal No. 470-J of 2006 filed by Maqbool, Arshad and Azhar, appellants are accepted. The appellants shall be set at liberty forthwith if not required to be detained in any other case.
18. As the main appeals of the appellants have been accepted so the revision petition filed by the complainant has become infructuous and the same is dismissed.
19. Death sentence awarded to Ramzan, appellant is not confirmed and reference (M.R. No. 329 of 2005) is answered in the negative.