JUDGMENT MUHAMMAD ANWAARUL HAQ, J.---This judgment shall dispose of Criminal Appeal No.36- J of 2007 titled as "Nasir alias Nasri v. The State" and Murder Reference No. 769 of 2005 titled as "State v. Nasir alias Nasri" arisen out of case F.I.R. No. 48 of 2002, dated 29-3-2002 offence under sections 302 and 393, P.P.C. Registered at Police Station City Renala Khurd, District Okara.
2. Nasir alias Nasri appellant has filed Criminal Appeal No.36-J of 2007 through jail against his conviction and sentence whereby he was convicted by the learned Additional Sessions Judge Okara vide judgment, dated 22-11-2005 and sentenced as under:-- Under section 302(b), P.P.C.
Sentenced to death, with compensation under section 544-A, Cr.P. Code of Rs.100,000 to the legal heirs of the deceased, in default to further undergo for 6 months. S.-I."
The learned trial Court has sent Murder Reference No.769 of 2005 for confirmation or otherwise of the sentence of death awarded to Nasir alias Nasri (convict).
3. Brief facts of the case as narrated in F.I.R. (Exh. PA/1) lodged on the written application (Exh. PA) of Mirza Muhammad Arshad Baig complainant (P.W.10), are that the complainant is the resident of Chak No.23/2-L, on 28-3-2002, he, along with his were after her medical checkup was returning home, at about 10-00 p.m. When they reached opposite to Gate of Aamir Fruit Farm, all of a sudden, four persons armed with firearms came in front of their car, on seeing them the complainant tried to turn his car left and then right side, but two accused from the left side whereas two from the right side started firing with their fire-arms, fires hit on the screen at left side and seriously injured his were. On hearing the fire shots, Muhammad Afzaal Nazim real brother of the complainant, Sana Ullah P.W. And many others from the vicinity also attracted at the spot and all the accused while firing fled away. The complainant along with other prosecution witnesses escorted the injured to the hospital but she succumbed to the injuries on the way.
4. Muhammad Rafiq S.-I. Received the information of the occurrence and went to the spot where Mirza Arshad Baig complainant (P.W.10) produced a written application (Exh. PA) to him; he forwarded the same to police station for registration of formal F.I.R., on which F.I.R. (Exh.PA/1) was drafted. He prepared injury statement, application for postmortem examination on the dead body of Mst. Shazia Arshad and inquest report. He also sketched the rough site-plan of the place of occurrence. He took into possession six empties of rifle .222 bore and Car No.20/OKC. He also collected blood of the deceased from inside the car with cotton cloth. On 23-5-2002 appellant during the course of investigation led to the recovery of a gun .12 bore and twenty cartridges.
On 29-3-2002 Mirza Arshad Baig complainant (P.W.10) joined the investigation before Khalid Pervez Inspector (P.W.15) and made his supplementary statement (Exh. PA/2) nominating Shaukat and Mohabat accused in this case. Khalid Pervez Inspector also arrested the appellant on 27-4-2002.
On 14-5-2002 Hafiz Shaukat Ali, Special Judicial Magistrate, Okara (P. W.12) conducted the identification parade in Central Jail, Sahiwal and in his presence eye-witnesses namely Mirza Afzal Baig, Arshad Baig and Sana Ullah have identified the accused Nasir alias Nasri.
5. The appellant and his co-accused (since acquitted) were summoned to face trial. Formal charge was framed against the appellant and his co-accused to which they pleaded not guilty and claimed trial.
6. To substantiate the charge prosecution has examined fifteen witnesses in total out of which Lady Dr. Qaiser Tariq (P.W.8) provided medical evidence. Mirza Arshad Baig complainant (P.W.10) and Sana Ullah (P.W. 11) have furnished the ocular account. Muhammad Rafiq S.-I. And Khalid Pervaiz, Inspector (P.W.15) conducted investigation of this case whereas Akbar Javed A.S.-I. (P.W.13) has furnished secondary evidence of Muhammad Rafique S.-I. Who was not available after his retirement vide order of the learned trial Court dated 28-1-2005.
7. On 29-3-2002 Lady Dr. Qaiser Tariq (P.W.8) conducted post mortem examination on the dead body of Mst. Shazia Arshad (deceased) and observed as under:--
(1) A lacerated wound 5 x cm 8 cm x deep going on the medial border of left scapula, on dissection injury to left lung, blood vessels of heart and lungs and out from the right of chest injury to the right arm (wound of entry).
A lacerated wound 3 cm x 5 cm below the injury No. 1 (wound of entry).
A lacerated wound 3-1/2 cm x 2-1/2 cm, approximately 6 cm below and left to injury No.2 (wound of exit to injury No. 2.
A lacerated wound 2 1/2 cm x 1 cm on the right cheek deep going to oral cavity.
A lacerated wound 21/2 cm x 6 cm x skin deep with blackening of margin (wound of entry 3 cm below the left nipple.
A lacerated wound 1-1/2 cm 1/2 cm approximately 1 cm right injury No. 5 (wound of exit).
A lacerated wound 2 cm x 1-1/2 cm approximately 1 cm right injury No.5 (wound of exit).
A lacerated wound 4 cm x 4 cm x deep going with everted margin (wound of exit injury No. 1).
All the injuries were ante mortem and in ordinary course of nature were sufficient to cause death due to severe haemorrhage, blood loss and shock.
Probable time elapsed between injury and death was immediate and between death and postmortem 14-15 hours approximately.
8. Appellant and his co-accused (since acquitted) were examined under section 342, Code of Criminal Procedure. To a question as to why the case against him and why the prosecution witnesses had deposed against him Nasir alias Nasri appellant replied as under:-- "All the P.Ws. Are inter se related to each other and they have falsely deposed against me with ulterior motive and to suppress and dispose of the real facts of the case. The whole version of prosecution based on presumption, conjecture and surmises and is not plausible in ordinary course of nature. As no such occurrence took place as stated by the prosecution. In fact, Muhammad Arshad husband of deceased wanted to mary with Sana sister of deceased as they have affair with each other and that in pursuance of that object he managed to get murder his were. Mst. Shazia deceased was not pregnant and that a fake and fictitious version was introduced by the prosecution at very belated stage. I am known to complainant party since my birth. The complainant party is very influential persons and brother of the complainant is existing Nazim Union Council and has political influence over the police. The police joining the hands with the complainant party firstly kept me detained at P/S for a long time and then falsely challan me in this case for the purpose of fake and fictitious identification parade. The complainant and other so called P.Ws. Used to visit me during my above-said detention as well. I am innocent and I have no concern with the alleged occurrence and that I have been made an escape goat by the police by concealing the true facts of the occurrence and that 'I have been falsely challaned in this case."
The appellant and his co-accused did not opt to appear as their on witnesses under section 340(2), Code of Criminal Procedure, nor did they produce any evidence in their defense. After conclusion of the trial, the learned trial Court vide impugned judgment while acquitting two co- accused namely Muhammad Akram alias Akari and Mohabbat alias Jaji, convicted the appellant as detailed above.
9. Learned counsel for the appellant, in support of this appeal, contends that admittedly the appellant is not named in the F.1.R. Or in the supplementary statement (Exh. PA/2); that the story narrated in the F.I.R. Is highly improbable; that surprisingly the complainant did not sustain even a scratch in the whole incident; that there is no allegation that anything was snatched from the complainant; that the complainant in his cross-examination stated that he had no enmity with the accused persons; that the complainant has made dishonest improvements while appearing before the learned trial Court to strengthen the, case of prosecution; that the deceased sustained injuries on her front and back whereas according to the complainant all the four accused made firing from left and right side; that even there was blackening present around an injury which suggests that the deceased was fired from a very close range that falsifies the ocular account furnished by Mirza Arshad Baig (P. W.10) and Sana Ullah (P.W.11); that statement of Sanaullah (P.
W.12) is of no avail to the prosecution as in his statement recorded before the Police under section 161, Code of Criminal Procedure he has not named any of the assailants, however, while appearing before the Court he named the appellant: that the identification parade (Exit. PK) is also of no help to the prosecution firstly because the complainant (P.W.10) and Sana Ullah (P.W.11) did not give any description of any of the assailants, secondly the witnesses did not assign any role whatsoever to the appellant with reference to his participation in the alleged occurrence and it was simply stated that they have identified the appellant; that no importance can be attached to the recovery of weapons of offence and empties from the place of occurrence as these were not sent to Forensic Science Laboratory for comparison.
10.. On the other hand, learned Deputy Prosecutor-General, opposed this appeal on the ground that there is no contradiction in the ocular account and the medical evidence as it is the case. Of the complainant that on seeing the culprits he tried to turn his car to the left. Side and right side and the assailants made firing, therefore, possibility cannot be ruled out that the deceased might have turned her body and in this way she sustained injury on her front and back; that the complainant had no enmity with the appellant to falsely implicate him in the murder of his were; that the appellant was picked up during the course of identification parade which was conducted under the supervision of a learned Judicial Magistrate (P.W-12) and recovery of weapons of offence sufficiently connects him with the commission of crime; that the prosecution has proved its case against the appellant to the hilt and this appeal merits outright dismissal.
11. We have heard learned counsel for the appellant as well as the learned Deputy Prosecutor General for the State at a considerable length and have also gone through the record.
12. In this case the occurrence took place on 28-3-2002 at about 10-00. p m. Matter was reported to the Police at the place of occurrence through written application moved by the complainant and formal F.I.R. Was recorded at 12-35 a.m. On 29-3-2002. Distance between the place of occurrence and the Police Station is 08 kilometers. In the F.I.R. Admittedly none is named as accused despite the fact that the case was registered on the written application of Mirza Arshad Baig complainant (P.W.10). Even in the supplementary statement dated 29-3-2002 the appellant has not been nominated as an accused and suspicion has been shown against two other persons. It is the case of the complainant that four assailants armed with firearms fired at his car from left and right side of the car but according to post mortem report deceased sustained injuries on her front, back and left side of the body. Moreover, the complainant himself did not receive even a scratch during the whole occurrence. We have noticed that Lady Doctor (P.W.8) during post mortem examination of Mst Shazia Arshad (deceased) has observed blackening of margins regarding injury No. 5 but there is no evidence to show that any fire was made from such a close range. Thus, on this aspect of the case the ocular testimony is not corroborated by the medical evidence, which creates a reasonable doubt in the prosecution's story. Ocular account furnished by the complainant (P W. 10) and Sana Ullah (P W.11) that the assailants resorted to firing from both the sides (left and right) is further falsified by the recovery memo of car (Exh. PJ) which shows that firing was made only from the front, left side as all the bullet marks were A available on left side of the front screen and not at anywhere else on the car.
13. We have noticed that P W it) and . P.W. I 1 have made conscious dishonest. Improvements to strengthen the case of prosecution during the trial. As far-as Sana ullah (P.W.11) is concerned. His statement was recorded by the Police under section 161, Code of Criminal Procedure (Exh. DA) wherein he had not mentioned the name of the appellant but while appearing before the trial Court, he has improved his statement and named the appellant. The more glaring dishonest improvement in his statement is regarding showing himself as an eye-witness of the occurrence with all minute details whereas in his statement Exh. DA he had categorically stated that he learnt about the details of occurrence after reaching the spot along with other residents of the village. He had stated in his first statement before the police that complainant Arshad Baig can identify the assailants but he did not claim that he himself was an eye-witness and could identify the assailants.
14. So far as identification parade (Exh. PK) is concerned, suffice it to observe that in the F.I.R.
Description of the assailants has not been mentioned and even during the identification parade appellant was not picked up with reference to the role, allegedly played by him during the occurrence and it was simply stated that witnesses have identified the appellant In the case of Mehmood Ahmed and 3 others v. The State (1995 SCMR l27) it was held that evidentiary value of identification of accused in the identification parade without attributing to his role in the crime has no evidentiary value.
15. Recovery of a gun and a pistol at the instance of the appellant carries no value, as there is no report of the Fire-arms Expert in this respect. In the case of Tayyab Hussain v. Ansari All and others (2008 SCM R 90) the Hon'ble Supreme Court has observed that recovery of weapon from the accused was of no consequence as the crime empty secured from the place of occurrence was not sent to the Forensic Science Laboratory for comparison.
16. Motive initially advanced by the prosecution was robbery but nothing was snatched from the complainant by the accused. Learned trial Court has framed charge against the accused only under section 302, P.P.C. And not under section 393, P.P.C. As mentioned in the F.I.R. Complainant has admitted that he had no enmity with the accused, in this view of the matter murder of his innocent were is not understandable especially when he did not receive any injury during the occurrence and accused did not snatch any thing from him. We are of the considered view that complainant has concealed the real facts regarding this unfortunate incident.
17. In view of above we hold that prosecution case is doubtful in nature, does not inspire confidence and prosecution has failed to bring home the guilt of the appellant. In the case of Muhammad Akram v. The State (2009 SCM R 230), the Hon'ble Supreme Court of Pakistan has observed 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, 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. Therefore, this appeal is allowed and the appellant is acquitted of the charges levelled against him while extending him benefit of doubt. He is in jail. He be released forthwith if not required in any other case.
19. Murder Reference No. 769 of 2005 is answered in the NEGATIVE and the sentence of death awarded to Nasir alias Nasir (convict) is NOT CONFIRMED.