MANZOOR AHMAD , MALIK, J.---This judgment shall dispose of Criminal Appeal No,1330 of 2004 titled as "Tariq Aziz v. The State" and Criminal Revision No,680 of 2004 titled as "Abdul Manan Javed v. Tariq Aziz alias Khawar and another" as both these matters have arisen out of the same case i,e, F.I.R. No-.416 of 2003 dated 8-8-2003 offence under section 302, P.P.C. registered at Police Station Chunian, District Kasur.
2. Tariq Aziz appellant has filed Criminal Appeal No,1330 of 2004 against the judgment of learned Additional Sessions Judge Kasur dated 22-6-2004 whereby lie was convicted by the learned Additional Sessions Judge Kasur under sections 302(b) and 449, P.P.C. 'and sentenced as under:-- "(57) I, therefore, proceed to convict accused Tariq Aziz under sections 302(b), P.P.C. and 449, P.P.C., and sentence him as under:--
(58) Convict Tariq Aziz is sentenced under section 302(a), P.P.C. to suffer imprisonment for life. He shall also pay Rs,50,000 as compensation under section 544-A, Cr.P.C. to the legal heirs of deceased, otherwise same shall be recovered as arrears of land revenue, In case of non-recovery convict shall further undergo six months S.I. Convict has been 'sentenced imprisonment for life, lesser penalty due to the reason that as per my observation during the hearing of ocular account, that some had happened just before occurrence which has been suppressed by prosecution. Further as per circumstances of case, sentence, imprisonment for life is sufficient to meet the ends of justice.
(59) Convict Tariq Aziz has 'not been convicted under section 302(a), P.P.C. because no evidence was available to convict him under section 302(a), P.P.C.
(60) Convict Tariq Aziz is also sentenced under section 449, P.P.C., rigorous imprisonment, for ten years and tine Rs,10,000. In case of default of fine, he shall have to further undergo imprisonment six months' S.I.
(61) Both the sentences awarded to convict shall run concurrently.
(62) Convict shall not be entitled for the benefit of section 382-B, Cr.P.C. because he has already been awarded lesser penalty."
Criminal Revision No,680 of 2004 has been filed by Abdul Manan Javed complainant for enhancement of the sentence awarded to Tariq Aziz alias Khawar (respondent/appellant) from imprisonment for life into death sentence.
3. Necessary facts of the case are that Abdul Manan (P.W.6) complainant of the case on 8-8-2003 moved an application (Exh.PE) to the S.H.O. Police Station Chunian on the basis whereof formal F.I.R.
(Exh.PE/1) was registered on the same day. According to the contents of the F.I.R. lie (complainant) was resident of Chunian and doing business at Khan Garh, District Muzaffar Garh. On 4-7-2003, at about 8-00 a.m, Rabia Bibi, real sister of complainant, who was aged twenty six and unmarried was present in the house. Tariq Aziz alias Khawar (appellant) son of Noor Muhammad (late), caste Rajpoot, resident of Kirpa Ram Factory, Purana Karkhana Tehsil and District Okara while armed with a pistol trespassed into the house of the complainant and started quarrelling with the sister of the complainant namely Rabia. Complainant's sister was fallen on the ground and by aiming pistol at her chest he made a fire. Upon receiving firearm injury Rabia Bibi died. The occurrence . was witnessed by Mst. Kalsoom Bibi mother of the complainant and Muhammad Nafees. Due to murder of Rabia Bibi mother of the complainant became unconscious. After attaining consciousness she narrated the whole story to the complainant. Motive behind the occurrence was that Tariq Aziz alias Khawar demanded hand of sister of the complainant which was declined as the appellant was a vagabond convict and used to deal in narcotics. Due to the said grudge sister of the complainant was done to death by a firearm injury. When the complainant returned from Khan Garh his sister had already been buried. On getting knowledge about the facts, he immediately moved the learned Sessions Judge Kasur for exhumation of the dead-body and a post mortem examination was accordingly conducted. According to the post mortem report the deceased was murdered.
4. Muhammad Yasin S.-I. (P.W.12) was posted at Police Station Chunian. Upon being handed over the file for investigation, lie visited the place of occurrence and took into possession lead of pistol .30 bore (P.1) vide recovery memo. (Exh.PF). Complainant also handed over to him last worn clothes of the deceased, Shirt (P.2), Shameez (P.3) and Brazier (P.4), blood stained, which were taken into possession by hint vide recovery memo (Exh.PG). He also prepared un-scaled site plan of the place of occurrence (Exh.PN). He got prepared scaled site plans (Exh.PA) and (Exh.PA/1) by the Draftmans and put red notes on the same. He further stated that the complainant, Abdul.
Manan (P. W..6) handed over to him letter (P.5). On 13-8-2003, he came to know that the accused was arrested in some other criminal case in Easa Khail. He got transferred the accused to Kasur and arrested him in this case. He also got recovered pistol P.6 from the appellant and took the same into possession vide recovery memo (Exh.PH). He also took into possession documents regarding exhumation and post mortem examination by moving application (Exh.PQ). He found the appellant guilty and prepared challan against him after fulfilling coda formalities.
5. The appellant was summoned to face the trial. Copies of the documents, as required under section 265-C; Code of Criminal Procedure, were supplied to him vide order dated 27-1-2004.
Formal charge was framed against him on 7-2-2004 to which he pleaded not guilty and claimed trial. In order to prove its case, prosecution examined twelve witnesses, in all. Shaukat Ali 839-C appeared as P.W.1 and stated that on 22-8-2003 he was handed over a sealed parcel containing .30 bore pistol for keeping the same in Malkhana. On 16-9-2003 he handed over the sealed parcel of pistol .30 bore to Rashid Ahmad 169-C for depositing in the office of Forensic Science Laboratory, Lahore. Bashir Ahmad 169-C appeared as P.W.2 and stated that on 16-9-2003 he was handed over one sealed parcel containing pistol .30 bore for depositing in the office of Forensic Science Laboratory Lahore. He deposited the said parcel in the concerned office on the same day. Master Sadiq Ali Draftsman appeared as P.W.3 and stated that on 9-8-2003 he went to the place of occurrence, took rough notes as per pointation of eye-witnesses and as per direction of Police. On 11-8-2003 he prepared scaled site plans in duplicate (Exh.PA) and (Exh.PA.1). Muhammad Jafar 300-C appeared as P.W.4 and stated that on 26-7-2003 Moharrir handed over to him two big cartons and two envelopes, sealed for depositing with the office of Chemical Examiner, Lahore. He deposited the same in the concerned office, in fact, on the same day. Muhammad Sharif 232-HC appeared as P.W.5 and stated. that on 19-7-2003 lie was posted as Moharrir at Police Station Chunian. On the same day Muhammad Ilyas S.-I. handed over to him two big cartons along with two sealed envelopes for keeping the same in Malkhana. On 26-7-2003 he handed over the said sealed parcels to Muhammad Jafar 300-C for depositing the same in the office of Chemical Examiner, Lahore. Abdul Manan complainant himself appeared as P.W.6 in support of the version set out in the F.I.R. Muhammad Ilyas S.-I. appeared as P.W.7 and stated that on 8-7-2003 he was posted as Incharge Investigation at Police Station Chunian. He received application Exh.PB submitted by Abdul Manan complainant whereupon learned Illaqa Magistrate passed order to the S.H.O. to submit report. Application was with regard to exhumation and post mortem of deceased Rabia Bibi. S.H.O. marked the said application to him. He recorded the statement of mother of deceased while going to the place of. occurrence The statemein of Kalsoom Bibi is (Exh.PJ). He also recorded the statement of complainant Abdul Manan (Exh.PC). He further recorded the statement of Muhammad Nafees (Exh.PK). The said statements were recorded for the purpose of exhumation and post mortem on the dead body. He was also shown last worn clothes of deceased Rabia Bibi by her mother. He came to the conclusion that Rabia Bibi was murdered. Therefore, he prepared report (Exh.PL) and submitted the same to Illaqa Magistrate, Chunian. He further stated that on 19- 7-2003 exhumation was conducted. Exhumation was made in presence of lady doctor Tahira Naheed, Mr Jehangir Ali Gondal, Illaqa Magistrate, Chunian, Muhammad Nafees, Abdul 'Marian, Muhammad Akram and Abdur Rauf P.Ws. were also present who identified the dead body of Rabia Bibi. Thereafter post mortem examination was got conducted by him and after post mortem examination, the Medical Officer handed over to him two boxes sealed and two envelopes sealed.
One was required to be submitted in the office of Chemical Examiner, whereas the other in the office of Pathologist, Lahore. On the same day i,e, 19-7-2003, lie handed over the said parcels to the Moharrir of Police Station Chunian. Abdul Hameed A.S.-I. appeared as P.W.8 and stated that on 8- 8-2003 he received complaint (Exh.PE) for the registration of case whereupon lie drafted F.I.R.
(Exh.PE/1). Trainee Lady Doctor Tahira Naheed appeared as P.W.9 and stated that on 19-7-2003 she was posted at DHQ Kasur. On the same day, she was deputed for exhumation post mortem on the dead body, of Rabia Bibi daughter of Abdur Rehman and she conducted the post mortem examination, accordingly. Muhammad Nafees (P.W.10) and Kalsoom Bibi (P.W.11) furnished the ocular account as set outin the F.I.R. Muhammad Yasin S-I. who conducted the investigation of this case entered into witness box as P.W.12 and narrated the various steps taken by him during the course of investigation. Learned Assistant District Attorney gave up Jafar Ali 627-HC being unnecessary vide statement dated 8-3-2004. Similarly vide statement dated 11-3-2004 he gave up Muhammad Akhtar and Abdur Rauf P.Ws. being unnecessary. Learned , Assistant District Attorney tendered in evidence report of Forensic Science Laboratory (Exh.PR), report of Chemical Examiner (Exh.PS), report of Bacteriologist (Exh.PT), original order of MS DHQ Hospital Kasur (Exh.PU), original report of Judicial Magistrate relating to exhumation (Exh.PV), original letter regarding constitution of Board '(Exh.PW) and closed the prosecution evidence vide statement dated 12-6-2004.
Statement of the appellant was recorded under section 342, Code of Criminal Procedure on 15-6- 2004. To a question as to why the case against him and why the prosecution witnesses had deposed against him the appellant replied as under:-- I am innocent. In fact I had business dispute with Abdul Manan complainant of this case and brothers of wife of complainant at Khan Garh, Quetta and Kala Bagh etc. Due to dispute of business complainant and brothers of wife of complainant got registered narcotics cases against me, in connivance with police. I had been protesting for said case, due to this grudge complainant party implicated me in this case falsely due to dispute of business and cases of narcotic. Rabia Bibi was done to death in a blind occurrence. P.Ws. did not see the occurrence. They have deposed against me falsely as being relative of the deceased as well as complainant and brothers of wife of complainant. Dead body of Rabia Bibi was buried after the occurrence and matter of alleged murder was not reported to police. Thereafter, when I was arrested in a criminal case offence under section 9, C.N.S.A. 1997 at Police Station Eesa Khail, then complainant party concocted a story about the murder of Rabia Bibi and moved application for exhumation and post mortem. After Manoeuvring false and bogus post mortem report and fabrication of eye-witnesses involved me in this case. I am absolutely innocent in this case. Nothing was recovered from me. I never visited Chunian in my life nor I went to the house of complainant, place of occurrence.
I never demanded the hand of Rabia Bibi for me. Motive has been fabricated just to create motive for the occurrence and strengthen prosecution case. My parents never went to the house of complainant to demand the hand of Rabia Bibi deceased for me. I had no visiting terms with complainant Party as such, question of demanding, hand does not arise, in view of my dispute of business and criminal cases. Story of prosecution is not plausible, convincing, and the same is totally false.".
The appellant did not appear as his own witness as required under section 340(2), Code of Criminal Procedure, nor did he produce any evidence in his defence.
6. After conclusion of the trial, the learned trial Court convicted and sentenced the appellant as 'detailed above. Hence this appeal and revision.
7. Learned counsel for the appellant, in support of this appeal, contends that it is the case of the prosecution that the occurrence took. place on 4-7-2003 at about 8-00 a.m. in Mohallah Khajoorwala Chunian which is at a distance of 1-1/2 kilometers from the Police Station Chunian whereas the was registered on 8-8-2003 that there is no sufficient explanation for this inordinate delay; that the complainant has admitted even in the F.I.R. that he did not witness the occurrence and the occurrence was allegedly witnessed by Mst. Kalsoom Bibi mother of the complainant and Muhammad Nafees, brother-in-law of the complainant and both of them appeared before the learned trial court- as P.W.11 and P.W.10 respectively; that Muhammad Nafees (P.W.10) stated that he came to the place of occurrence to drop his wife as she was. running a school and according to the said witness he witnessed the occurrence but he remained mum and did not report the matter to the Police therefore, conduct of this witness is highly improbable; that similarly no plausible explanation has been given by Mst. Kalsoom Bibi for not reporting the matter to the Police; that according to complainant (P.W.6) he returned home on the day of occurrence at 9-00 p.m. and the whole story was narrated to him by his, mother but he submitted the application to the learned Sessions Judge Kasur on 7-7-2003 for exhumation of the dead-body; that the dead-body was exhumed on 19-7-2003 but there is no explanation even by this witness as to why he did not report the matter to the Police; that this witness made dishonest improvements while appearing before the court; that though recovery of pistol (P.6) was 'planted upon the appellant through recovery memo (Exh.PH) and a lead (P.1) was also handed over to the Investigating Officer which was secured through (Exh.PF) but .there is no report of the Forensic Science Laboratory to the effect that the lead (P.1) taken into possession from the place of occurrence matched with the pistol (P.6) allegedly recovered from the appellant and report (Exh.PR) is only to the effect that the pistol. is in working order, which is of no avail to the prosecution; that even the prosecution has not been able to prove motive behind the occurrence as according to the prosecution evidence available on the record, the appellant never demanded hand of Mst. Rabia Bibi deceased and it was demanded by his parents and that too one year prior to the occurrence; that in case of refusal, the grudge, if any, would have been against the persons who declined the demand instead of the deceased; that the prosecution story is doubtful in nature and the appellant is entitled to the benefit of doubt not as a matter of grace but as a matter of right.
8. On the other hand, the learned Deputy Prosecutor-General, assisted by learned counsel for the complainant, opposes this appeal on the grounds that Abdul Manan complainant (P.W.6) has given plausible explanation for delay in registration of the F.I.R. by Stating that the Police refused to accommodate him and on 5-4-2003 he submitted an application before the learned Sessions Judge Kasur for exhumation of the dead body of Mst. Rabia Bibi (deceased), therefore, it cannot be said that there was no conscious effort on the part of the complainant in reporting the matter to the Police promptly; that on the application of the complainant the dead body of Mst. Rabia Bibi was exhumed on 19-7-2003 and thereafter post mortem examination was conducted and consequently the F.I.R. was registered; that the ocular account was furnished by unbiased and natural witnesses; that the allegations against the appellant are supported by the medical evidence which his to the effect that the deceased received firearm injury at her chest, which is further strengthened by the recovery of -pistol (P.6); that even otherwise substitution of accused in such like cases is :a rare phenomenon; that the prosecution has also proved the motive-part of the occurrence which is to the effect that the appellant was demanding hand of Mst. Rabia Bibi, which was refused; that a chit (P.5) written by the appellant also connects him with the commission of offence.
9. I have heard learned counsel for the appellant as well was the learned 'Deputy Prosecutor- General for the State assisted by learned counsel for the complainant at a considerable length and have also gone through the record with their able assistance.
10. It is the case of the prosecution that the occurrence took place on 4-7-2003 at about 8-00 a.m. in the house of the complainant situated in Mohallah Khajoorwala, Chunian which is at a distance of 1-1/2 kilometers from the Police Station Chunian but the F.I.R. (Exh.PE/1) was registered on 8-8- 2003 which means that there was a delay of about thirty four days in the registration of F.I.R.
Therefore, the most important question for determination is whether in the circumstances of the case there is sufficient explanation for the delay in reporting the matter to the Police. In the complaint (Exh.PE) it is the case of the complainant (P.W.6) that this occurrence was witnessed by Muhammad Nafees, brother in law (behnoi) of the complainant and Mst: Kalsoom Bibi mother of the complainant. Said Muhammad Nafees appeared as P.W.10 and stated that he had gone to the place of occurrence in order to drop his wife who is principal at some school and he witnessed the occurrence. Though he has given full details of the occurrence but surprisingly he did not report the matter to the. Police and he has not offered any convincing explanation in this respect. His presence at the place of occurrence has rightly not been believed by the learned trial Court. As far as evidence furnished by Mst. Kalsoom Bibi (P.W.11) is concerned, according to her version on seeing Mst. Rabia Bibi deceased in serious condition, she became unconscious and she regained her consciousness when the complainant (P.W.6) returned home. But she also made no effort to report the matter to the Police till the submission of application for exhumation by Abdul Manan (P.W.6). It is not understandable as to why before filing of application before the learned Sessions Judge Kasur for exhumation of the dead-body of Mst. Rabia Bibi the complainant side did not report the matter to the Police. The version of P.W.6 that- the Police refused to accommodate him is not plausible. The delay in reporting the matter to the Police in the circumstances of the case is fatal to the prosecution case. I have noted with concern that the F.I.R. was got registered after the conducting of post mortem examination by Tahira Naheed Trainee Medical Officer (P.W.9).
11. Regarding this incident, the first application (P.8) was submitted by the complainant to the learned Sessions Judge Kasur. According to the complainant (P.W.6) he filed this application on 5- 4-2003. Though no date is mentioned on the application (Exh.P 8) but the ticket affixed on the application bears the date of 7-7-2003 besides the learned Sessions Judge Kasur passed, the first order on the said application 7-7-2003. It was also case of the complainant that Muhammad Yaseen Sub Inspector came to the place of occurrence On 7-7-2003 but the said S.I. while appearing as P.W.7 stated that he received the application on 8-7-2003. Perusal of the application (Exh.P.8) shows that it was marked by the S.H.O. to the In charge Police Post on 8-7-2003, perusal of this application further reveals that even in this application it is not the case of the complainant that the incident of murder of Mst. Rabia Bibi was witnessed by Mst. Kalsoom Bibi and Muhammad Nafees., It has also been noted that this occurrence allegedly took place in the house situated in a populated area of Chunian city. The said house is at a distance of 1-1/2 kilometers from Police Station Chunian. The deceased was buried on the same day i,e, 4-7-2003, therefore, it is very difficult to believe that the occurrence took place in the manner being alleged by the prosecution.
12. Motive, set out in the F.I.R., is that the appellant demanded hand of Mst. Rabia Bibi (deceased) which was declined by the complainant side. During the trial Abdul Manan (P.W.6) and Muhammad Nafees (P.W.10) to the extent of motive part of the occurrence furnished hearsay evidence whereas Mst. Kalsoom Bibi (P.W.11) did not utter even a single word regarding motive in her examination in chief, however, in the cross-examination she admitted that the appellant himself did not come to demand the hand of Rabia Bibi (deceased) rather his parents came twice/thrice and the last visit by them was about one year prior to the occurrence. To substantiate the motive, prosecution also relied upon a written chit (P.5) allegedly in the handwriting of the appellant. I am afraid that this chit (P.5) is of no help to the prosecution because there is no report of the Handwriting Expert to the effect that it was in the handwriting of the appellant. Thus the prosecution has failed to establish the motive against the appellant.
13.As far as recovery of pistol (P-6) which was taken into possession through recovery memo (Exh.PH) is concerned, though lead (P.1) was produced by the complainant (P.W.6) to the Investigating Officer (P.W.12) and same was also secured by the Investigating Officer through (Exh.
PF) but it was not sent to the Forensic Science Laboratory. Resultantly report of the Forensic Science -Laboratory that the weapon was in working order is of no avail to the prosecution.
14. Sequel of the above discussion is that the prosecution case is doubtful in nature and the appellant is entitled to the benefit of doubt not as a matter of grace but as a matter of right. In "Ayub Masil v. The State" (PLD 2002 SC 1048), at page 1056 the Hon'ble 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 riot 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". hi 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 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 H 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 hiss mistake in punishing an innocent."
15. For the foregoing reasons, 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.
16. In view of the above, since the appellant has been acquitted of the charge by extending him benefit of doubt, therefore, there is no question of enhancement of his sentence. Resultantly, Criminal Revision No,680 of 2004 filed by the complainant is hereby dismissed in limine