' ABDUL SAMI KHAN, J.---Ahmad Hussain appellant was convicted under section 302(b), P.P.C. By the learned Additional Sessions Judge, Mianwali vide judgment dated 31-1-2007 passed in a private complaint titled Fateh Sher v. Ahmad Hussain and 2 others instituted under section 302, P.P.C. Read with section 34, P.P.C. And was sentenced to death. He was also ordered to pay an amount of Rs.100,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of Abdul Rasheed 'deceased or in default of payment thereof to undergo rigorous imprisonment for six months. The appellant Ahmad Hussain has preferred Criminal Appeal No. 181 of 2007 against his conviction and sentence whereas the other two co-convicts namely Muhammad Ramzan and Raza Muhammad have also preferred Criminal Appeal No. 247 of 2007 who through the same judgment were also convicted under section 302(b), P.P.C. Read with section 34, P.P.C. And sentenced to imprisonment for life each. They were also ordered to pay an amount of Rs.50,000 each to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. Or in default of payment thereof to undergo simple imprisonment for six months each. Through this judgment we propose to decide both these appeals together along with the Murder Reference No. 74 of 2007 sent by the learned trial Court for confirmation or otherwise of the sentence of death passetl against Ahmad Hussain appellant.
2. According to the prosecution story set forth in the private complaint, the complainant was resident of Dera Latifanwala Dakhli, Ahmad Shah Wali and Agriculturist by profession. The complainant owned land within the area of Katcha Indus River where he had kept cattle. On the fateful morning of 14-8-2004 at about 6-30 a.m. The complainant along with his brother Abdul Rasheed, (deceased) Muhammad Sher and Muhammad Altaf were sitting near the cattle, where all of a sudden, Ahmad Hussain, armed with rifle, Muhammad Ramzan and Raza Muhammad, both armed with Kalashnikov came into sight from the cluster of bushes of western side. Ahmad Hussain raised lalkara to the effect that nobody would be spared alive on that day. Muhammad Ramzan and Raza Muhammad aimed their respective Kalashnikovs upon the complainant party While Ahmad Hussain made straight fire from his rifle upon Abdul Rashed which landed on his chest. The complainant along with his brothers Muhammad Sher and Muhammad Altaf fell down on Abdul Rasheed. The accused persons managed to escape from the scene of the crime after raising lalkaras. The complainant and his brother attended to Abdul Rasheed who succumbed to his injuries and died at the spot.
' The motive set up in the F.I.R. As well as in the complaint was a dispute between the uncle of the complainant namely Mulazim Hussain and Raza Muhammad, one of the appellants, whereas Abdul Rasheed deceased was helping his uncle Mulazim Hussain upon which the accused party nourished a grudge against him and all three accused after due consultation committed his murder. Initially, the matter was reported to the police and formal F.I.R. No. 128 was registered at Police Station Kundian, District Mianwali on 14-8-2004 at 9-00 a.m. In respect of an offence under section 302, P.P.C. Read with section 34, P.P.C. The investigation was conducted in this case by many police officers out of whom statements of four police officers were recorded as CW-1 to CW-
4. During the investigation all the accused were found to be innocent, thus, after being dissatisfied with the investigations the complainant instituted the private complaint.
3. To prove its case the complainant/ prosecution examined as many as witnesses whereas statements of four witnesses were recorded as C.Ws. The ocular account in this case has been furnished by Fateh Sher complainant (P.W.7) and Muhammad Altaf (P.W.8). Both of them had also supported the motive part of the case. Dr. Muhammad Zubair, Medical Officer, RHC Khudian (P.W.4) furnished the medical evidence in this case. While conducting post-mortem examination on the dead body of Abdul Rasheed on 14-8-2004 he found the following injuries:
(i) A firearm wound of entry 0.7 x 0.7 cm in front of chest over the sternum, in the midline, 7 cm below the sternal notch, Blood was present around the wound. Hair were present in 2 x 2 cm in circle shape around the wound. Blackening was present in circle. The edges of the wound were inverted and blackened. Area of the burning over the hole was present.
(ii) On turning the body there was wound of exit on the back with irregular everted margin 2.75 x 2 cm over the vertiberal column, 33 cm below the base of skull. On probing by finger the wound was crushed fracture of vertibrae.
' In his opinion all the injuries were ante-mortem and were caused' by firearm and the death was due to the ruptured of heart and thoracic aorta along with crushed fracture of vertibrae, damaged to, the heart, aorta caused haemorrhagic shock which was sufficient to cause death in ordinary course of nature.
4. After the close of complainant/ prosecution evidence, statements of the appellants were recorded under section 342, Code of Criminal Procedure. The appellants in their statements under section 342, Cr.P:C. Refuted all the allegations levelled against them and professed their innocence. The appellants did not opt to appear as their .Own witness under section 340(2), Cr P.C. And also did not produce any evidence in their defence. In response to a question that why this case against and why the P.Ws. Have deposed against them Ahmad Hussain appellant stated as under:-- "My co-accused Raza Muhammad refused to pay Rs.20,000 to Mulazim Hussain and on that account they nourished a grudge against us. The occurrence had taken place at 2-30 am and when the information was conveyed to the complainant who was at his house. My co-accused Raza Muhammad with his family went there to condole and also accompanied them to the place of occurrence where the dead body was lying. It. Was an un-witnessed occurrence and I was found innocent during the investigation of this case and the case was filed as un-traced.
' Rest of the co-convict had also taken the same stance before the learned trial court.
5. After the conclusion of the trial the learned trial court found the case of the prosecution to be proved beyond reasonable doubt against the appellants, therefore, convicted and sentences them as mentioned and detailed above. Hence, both the above said appeals and murder reference.
6. Learned counsel for the appellants in support of the appeals contend that appellants have falsely been implicated in this case; that there is a contradiction between ocular account and medical evidence because according to site plan (Exh.PA) the deceased was fired at from 03 karams whereas there is blackening around the wound of Abdul Rashid (deceased) which suggest that he was fired at from a very close range; that the complainant Fateh Sher (P.W.7) and other eye-witness Muhammad Altaf (P. W. 8) are residing 1-1/2 miles away from the place of occurrence and as such their presence at the place of occurrence is highly improbable; that this case was investigated by Sultan Ahmad S.I., Muhammad Qasim Inspector, Maratab Ali Shah D.S.P., Pervez Iqbal D.S.P., Ijaz Ahmad Lagiana D.S.P., Khalid Bashir D.S.P., and Ghulam Jilani D.S.P. And all the Investigating Officers found all the appellants innocent and even the appellants were not arrested; that the complainant got this case registered on 14-8-2004 whereas the complaint was instituted by him on 21:11-2005 i.e. With a delay of more than one year on the ground that he was dissatisfied with the police investigation whereas the appellants were found innocent on 26-12-2004 and the case was consigned to record as untraced but the complainant has not been able to explain why he had waited till 21-11-2005; that in the F.I.R. It is case of the complainant that he was residing on the land situated in the Katcha Indus River along with his brothers as they used to graze cattle there whereas Mushtaq Hussain Patwari P.W.2. Who had prepared site plan admitted that there was no crop and it was Bunjar land declared as Ghair Mumkin Darya and he has also admitted that without boat no body could reach at the place where the occurrence took place; that it is not a case of the complainant that appellants used any boat and that even otherwise the story narrated in the F.I.R. As well as mentioned in the complaint coupled with statements of the witnesses before the trial Court does not appear to be probable because as per prosecution the appellants Muhammad Ramzan and Raza Muhammad were, armed with Kalashnikov, remained standing there but ,did not fire a shot; that Pervez Iqbal D.S.P. Who appeared as CW-2 has stated that he had written in his report that the place of occurrence was the den of dacoit, cattle lifter and the proclaimed offender;. That Muhammad Altaf P.W.8; real brother of the complainant has admitted that when the police reached at the spot, there was no cattle, that even no cot has been shown in the site 'plan or in the inspection note; that P.W.8 Muhammad Altaf has also admitted that his dera is situated 1-1/2 miles away from the place of occurrence and he reached at the spot at 6- 30 a.m; that the motive alleged in the F.I.R. Was that paternal uncle of the deceased namely Mulazim Hussain had a dispute with Raza Muhammad appellant and the deceased Abdul Rashid was helping his said paternal uncle, however, while appearing before the trial Court Fateh Sher complainant (P.W.7) in his cross-examination admitted that dispute was regarding theft of khokha of Molazim Hussain and the suffer dogs were called and Raza Muhammad appellant was held responsible for this theft and Syed. Muhammad Hussain Shah of Belot Sharif decided that Raza Muhammad will pay Rs.20,000 but he did not pay the said amount. He also stated that Abdul Rahid deceased never appeared as a witness before Syed Muhammad Hussain Shah in support of the paternal uncle. It has further been contended by the learned counsel for the appellants that Muhammad Altaf (P.W.8) had admitted that Mulazim Hussain with whom Raza Muhammad had dispute was residing at a distance of 3 miles away from the place of occurrence; that the evidence produced by the prosecution is liable to be discarded straightaway and even if it is to be believed, it requires strong corroboration which is very much missing as no recovery of any weapon has been effected from any of the appellants.
7. On the other hand, the learned D.P.-G. Assisted by learned counsel for the complainant while opposing these appeals contends that the appellants are nominated in the prompt F.I.R. As the occurrence took place at 6-30 a.m. Whereas the F.I.R. Was registered at 9-00 a.m. On the same day whereas the distance between the place of occurrence and the police station was about 48 kilometers; that the witnesses of the ocular account have no enmity for false implication of the appellants and even otherwise substitution in such like cases is a rare phenomenon because the, real brothers of the deceased will not let off real culprits and involve innocent persons; that the ocular account is fully supported by the medical evidence as it is the case of both the eye- witnesses that the appellant Ahmad Hussain fired a shot from his rifle which hit on the chest of Abdul Rashid and same is the report of doctor who conducted post mortem examination on the dead body of the deceased; that the prosecution also proved the motive as it has not been denied that Raza Muhammad appellant had no dispute with Mulazim Hussain. So far the police investigation is concerned, it is contended that the police opinion is inadmissible in evidence and it cannot be used either in favour or against the accused. They pray that appeals of the appellants be dismissed and 'murder reference be answered in the affirmative.
8. We have given anxious consideration to the arguments advanced by learned counsel for the respective parties and have also scanned the record, with their able assistance.
9. The unfortunate occurrence in this case as per F.I.R. (Exh.PF) and private complaint Exh.PG took place on 14-8-2004 at 6-30 a.m. At a place known as katcha Daryai Sindh within the limits of Ahmad Shah Wali at a distance of 48 k.m. From Police Station Kundian District Mianwali. Initially, Fateh Sher complainant (P.W:7) reported the matter to the police and F.I.R. Exh.PF was registered at 9-00 a.m. On 14-8-2004. However, later on the complainant being dissatisfied with the out come of the investigation conducted by the police, filed a private complaint on 21-11-2005. However, the Contents of the F.I.R. (Exh.PF) and Private Complaint (Exh.PG) qua the mode of occurrence and the accused are same.
10. The learned counsel for the appellants has vehemently contended that all the appellants were found innocent by the police during investigation conducted by different police officer and four of whom also appeared before the trial Court as CW-1 (Sultan Ahmad S.-I.), CW-2 (Pervez Iqbal DSP), CW-3 (Ghulam Jilani DSP) and CW-4 (Qasim Inspector). CW-1 Sultan Ahmad S.-I. In his statement before the learned trial Court has stated that he found the facts given in the F.I.R. Suspicious and on 25-8-2004 he postponed the arrest of the accused. It is correct that CW-2, CW-3 and CW-4 in their statements before the learned trial Court have stated that they found the appellants innocent in the investigation.
' Be that as it may, this court has the opportunity to observe here that police opinion, regarding innocence or guilt of an accused person is inadmissible in evidence.
' In this regard reliance is placed on Muhammad Ahmad (Mahmood Ahmad) and others v. The State (2010 SCM R 660) wherein the honourable Supreme Court of Pakistan at page 676 has been pleased to observe as under:-- "Before we part with this judgment, we would like to bring on record our concern and our displeasure about the manner in which the trial in question had been conducted. The learned trial Judge allowed matters to come on record which were not admissible in evidence. We were pained to find that during the course of cross- examination of prosecution witnesses and the examination of defence witnesses, questions were allowed soliciting the opinion of the police officers about the guilt or innocence of some of the accused person's under trial. It appears to us that not only the learned cross-examiner but even the learned trial Judge was ignorant of even the basic provisions of law of evidence which prescribed that the witnesses could only state facts i.e. What they had themselves seen or heard or perceived through any of their sense and that the opinions or beliefs or impressions of third person were, as a general rule, irrelevant and, therefore, inadmissible. As a necessary exception to this rule what had been made admissible in evidence, besides the facts, were opinions but only of experts and that also on a point of foreign law or of science, or art, or as to the identity of handwriting or finger impressions (section 59 of the Qanun-e- Shahadat Order, 1984). It may be mentioned here, for the benefit and guidance of all concerned, that determination of guilt or innocence of the accused persons was the exclusive domain of only the Courts of law established for the purpose and the said sovereign power of the Courts could never be permitted to be exercised by the employees of the police department or by anyone else for that matter. If the tendency of allowing suchlike impression of the Investigating Officers to creep into the evidence was not curbed then the same could lead to disastrous consequences. If an accused person could be let off or acquitted only because the Investigating Officer was of the opinion that such an accused person was innocent then why could not, on the same principle, another accused person be hanged to death only because the Investigating Officer had opined about his guilt. It may be added that the provisions of sections 155, 156, 157 and 174 of the Criminal Procedure Code permit a police officer only to investigate a case. "Investigation" stands defined by the provisions of section 4(1)(1) of the said Code in the following terms:- "Investigation includes all the proceedings under this Code for the Collection of evidence conducted by a police officer..." (Emphasis and underlining has been supplied).
' This then clearly indicates that the job of the Investigating Officer is only to collect evidence and to place the same before the competent court. Therefore, whatever expertise, if at all, could be claimed by an Investigating Officer, would be vis-a-vis his filed of operation, namely, collection of evidence. Could his opinion ever become admissible in the medico-legal matters which is the area reserved for medical doctor or with respect to archeological matters to determine whether an item was or was not an antique or about hand-writings or foot-prints or finger-prints or to find out whether a painting was the actual work of a renowned painter or a fake? If the answer be in the negative, which it has to be, then how come he could be considered an expert and his opinion becoming admissible vis-a-vis the guilt or innocence of an accused person? It may be added that in the last 110 years since the Code of Criminal Procedure had been in existence in its present form, not once had it been authoritatively declared 'that an Investigating Officer was an expert in the matter of determining the guilt or innocence of accused persons whose opinion was admissible for the purpose, under the law of evidence. The prohibition contained in section 161, Cr.P.C. And in section 172 of the said Code regarding in admissibility of the statements recorded by an Investigating Officer under the said section 161 or the case dairies prepared by him under the said section 172, would further clarify the said proposition. Reference may also be made to a judgment of the Lahore High Court authored by one of us which is reported as Haji Muhammad Hanif v. The State PLD 1992 Lah.
214."
11. The case of the complainant in the F.I.R. (Exh.PF) and private complaint (Exh.PG) is that he is cultivator by profession and his land was situated at village Ahmad Shah Wali within River Indus where he was residing with his brothers Abdul Rashid (deceased), Muhammad Sher and Muhammad Altaf and they had kept cattle there. So, the first question for determination before us is whether complainant had any land within the river Indus as he has claimed. During his cross- examination a specific question was put to Fateh Sher complainant (P.W.7) that occurrence took place in the land owned by one 'Rehmat Ullah son of Ali which he denied but surprisingly other eyewitness Muhammad Altaf (P.W.8) real brother of the deceased/complainant while answering this suggestion admitted that land where the occurrence took place is owned by one Rehmat Ullah son of Ali. Both the witnesses (P.W.7 and P.W.8) in cross-examination have admitted that their residential dera was at a distance of 1-1/2 miles away from the place of occurrence. Muhammad Altaf (P.W.8) in his cross-examination stated that he came at the spot at 6-30 a.m. When the occurrence had taken place. However, he again stated that he was present at the place of occurrence during the night. Both these witnesses had stated that in their presence appellant Ahmad Hussain ,armed with rifle, Muhammad Ramzan and Raza Muhammad appellants armed with Kalashnikov came their and the appellants who were having Kalashnikov in their hands remained standing there and they did not fire and only Ahmad Hussain fired a shot which hit Abdul Rashid deceased on his chest. In the circumstances, the question arises why the appellants namely Muhammad Ramzan and Raza Muhammad who were having Kalashnikov in their hands, did not fire at the deceased or the eye-witnesses. The other important point is as to how the appellants reached at the place which is admittedly surrounded by River Indus and it is mentioned in the statement of Mushtaq Hussain Patwari/ Draftsman (P.W.2) that the place of occurrence is surrounded by the water and without boat nobody could come there. It is also relevant to mention here that occurrence took place on 14th of August when moon-soon season uses to be in full swing. The prosecution has failed to bring on record anything how the' appellants B reached and decamped from the place of occurrence.
12. While coming to the motive part of the prosecution case, we may observe here that the complainant has mentioned in .The F.I.R (Exh.PF) and private complainant (Exh.PG) that there was some dispute between paternal uncle of the deceased namely Mulazim Hussain and one of the appellants Raza Muhammad. But no detail of the dispute was mentioned in the F.I.R. (Exh.PF) or the private complaint (Exh.PG). However, while appearing before the trial court the Fateh Sher complainant (P.W.7) had given the detail, of said dispute and the relevant portion of his cross- examination is being reproduced:-- "It is correct that seven months prior to this occurrence, theft was committed in the khokha of Mulazim Hussain my paternal uncle /P.W. The army dogs were called and Raza Muhammad accused was held to be responsible for this theft. It is correct that Syed Muhammad Hussain Shah of Belot Sharif decided that Raza Muhammad accused should pay Rs.20,000 to Mulazim Hussain aforesaid. It is correct that Raw Muhammad accused declined to give Rs.20,000 to Mulazim Hussain asserting that he never committed the theft and did not pay that amount and this was the dispute which was stated by me in the motive part of this case. My deceased brother did not appear as a witness before Syed Muhammad Hussain Shah aforesaid"
' The perusal of the above referred portion clearly indicates that Abdul Rashid deceased was not helping his paternal uncle Mulazim Hussain in the dispute which was between Mulazim Hussain and Raza Muhammad appellant and more over the complainant has also admitted in his cross- examination that Mulazim Hussain was P.W. In this case but he has not been produced before the trial Court. So, adverse inference can be drawn against the prosecution that Mulazim Hussain might not have supported the prosecution version if examined. In this background of the situation, we are of the considered view that the prosecution has failed to prove the motive against the appellants. Even otherwise the evidence of the eye-witnesses is of such a quality that it requires strong corroboration if it is to be believed. But in this case there is absolutely no corroboration as no weapon was recovered from any of the appellants and the motive has not been believed by us. All the circumstances discussed above create doubts in a prudent mind about involvement of the appellants in this case. It is established principle of law that prosecution is required to prove its own case beyond any shadow of doubt and if any doubt is created in prosecution case, its benefit shall not be given to the accused as a matter of grace but as a right.
14. In "Muhammad Akram v. The State" (2009 SCM R 230), the Hon'ble Supreme Court of Pakistan at page 236 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 SCMR 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."
15. Sequel of the above discussions is that the prosecution story is doubtful in nature and the appellants are entitled to its benefit. Resultantly, Criminal Appeal No.181 of 2007 filed by Ahmad Hussain appellant and Criminal Appeal No.247 of 2007 filed by Muhammad Ramzan and Raza Muhammad appellants are allowed, the impugned judgment is set aside. The appellants are acquitted of the charges levelled against them. Ahmad Hussain appellant is in jail. He shall be released forthwith if not required in any other case. Muhammad Ramzan and Raza Muhammad appellants are present on bail, their sureties stand discharged for the liability of their bail bonds.
16. Murder reference is answered in the negative and death sentence of Ahmad Hussain in not confirmed.