MUHAMMAD ANWAARUL HAQ, J.---Appellant Muhammad Rafique Shah alias Heera was tried in case F.I.R. No.53 of 2006 dated 20-1-2006, registered at Police Station Saddar District Pakpattan Sharif in respect of offence under section 302, P.P.C. After conclusion of trial, learned trial Court vide its judgment dated 15-7-2006 has convicted the appellant under section 302(b), P.P.C. And sentenced him to DEATH with a compensation of Rs.100,000 under section 544A, Cr.P.C. To the legal heirs of the deceased and in default thereof to further undergo six months' S.I. Benefit of section 382-B, Cr P.C. Has been extended to the appellant.
Murder Reference No.614 of 2006 for confirmation or otherwise of death sentence awarded to appellant Muhammad Rafique Shah alias Heera shall also be disposed of through this single judgment.
2. Prosecution story in brief unfolded in the F.I.R. (Exh.PC) got registered by the complainant Muhammad Anwar (P.W.7) is that on 19-1-2006 at about 7-00 p.m. The accused Muhammad Rafique Shah visited the house of the complainant and took along with him his brother Muhammad Yaqoob (deceased), who did not return back till late hours of the night, upon which, the complainant, in search of his brother, reached at the tea shop of Muhammad Rafique and inquired about his brother, who apprised him that one hour before, his brother after taking the tea has proceeded towards Railways Line along with Muhammad Rafique Shah; in the meantime, Muhammad Aslam and Muhammad Amin came there and told the complainant that they had seen Muhammad Yaqoob and Rafique Shah while going towards `MUCHH' of Rafique Shah situated at Mughalpura Dakhli Tiba Sher Kot; the complainant along with Muhammad Aslam and Muhammad Amin reached at that place and saw that Muhammad Rafique Shah alias Heera was inflicting brick blows on the head, face and eyes of Muhammad Yaqoob deceased; on raising `lalkara' by the complainant his companions the accused Muhammad Rafique Shah made his escape good taking advantage of darkness of the night and Muhammad Yaqoob succumbed to his injuries at the spot.
"This case has been falsely made against me. I am a 'Malang' Motive behind this occurrence, as stated by the complainant, was that there was a money dispute between the accused Muhammad Rafique Shah and the deceased Muhammad Yaqoob, due to which, few days prior to this occurrence, an altercation also took place between both of them, however, the matter was patched up, but the accused Muhammad Rafique Shah nourished a grudge and committed the murder of Muhammad Yaqoob.
3. On submission of challan and after completion of procedural formalities, the accused/appellant was formally charge-sheeted by the learned trial Court under section 302, P.P.C., to which he pleaded not guilty and claimed trial. The prosecution examined as many as 10 witnesses to prove the charge against the accused. Dr. Muhammad Farooq Malik (P.W.1) provided medical evidence; Muhammad Iqbal, Inspector (P.W.10) conducted investigation of this case, whereas Muhammad Anwar (P.W.7) and Muhammad Amin (P.W.8) have furnished the ocular account.
4. On 20-1-2006 at 10-30 p.m., Dr. Muhammad Farooq Malik (P.W.1) conducted post-mortem examination of Muhammad Yaqoob deceased and found the following injuries:--
(i) Multiple lacerations on the face. Maxillary, mandibular and nasal bones were fractured. Eyes were depressed. Nose was also depressed.
(ii) Multiple lacerations on the head. Forehead was depressed. Skull bones were fractured and brain matter was visible.
In his opinion, cause of death was head injury resulting into severe damage .To the brain tissues and haemorrhage and shocks due to injuries Nos. 1 and 2, which were ante mortem, caused by blunt weapons and collectively sufficient to cause death in ordinary course of nature; probable time elapsed between the injuries and death was immediate and between the death and postmortem within 12 to 24 hours.
5. Learned ADA after tendering in evidence the reports of Chemical Examiner (Exh.PJ and Exh.PK) and that of the Serologist (Exh.PK/1) closed the prosecution case.
6. Thereafter, statement of the accused as required under section 342, Cr.P.C. Was recorded, in which he refuted all the allegations levelled against him and professed his innocence. While answering to question (Why this case against you and why the P. Ws. Have deposed against you?), appellant Muhammad Rafique Shah alias Heera replied as under:-- type of man. I came from Multan in order to attend ceremonies of Urs Hazrat Baba Farid-ud-Din (R.A), but with mala fide intention, the police implicated me falsely in this case in order to show the efficiency. The P. Ws. Are interested witnesses. They have falsely deposed against me."
The accused/appellant neither appeared as his own witness under section 340(2), Cr.P.C. Nor produced any evidence in his defence.
After conclusion of the trial, the appellant has been convicted and sentenced by the learned trial Court, as mentioned above.
7. Learned counsel for the appellant in support of this appeal contends that no specific time of occurrence is mentioned in the F.I. R; that the matter was reported to the police on the next day i.e. 20-1-2006 at 11-Q0 a.m. And the explanation offered for this delay is neither probable nor convincing as both the Police Stations are situated in the same vicinity; that even otherwise, story of the prosecution narrated in the F.I.R is highly improbable because as per the prosecution case the complainant along with two grownup persons while entering the place of occurrence had seen the appellant while giving brick blows to the deceased in a compound which had only one gate, but even then they remained unable to apprehend the appellant at the spot; that the recovery of two bricks at the instance of the appellant has no value as the complainant has stated that the accused had caused injuries with one brick which was thrown by him at the spot and was also lying there when the police inspected the spot; that motive is of general nature that there was a money dispute between the appellant and the deceased and no evidence in this regard has been produced by the prosecution, rather the complainant has admitted that he was informed by the police that the appellant borrowed an amount of Rs.10,000 from the deceased; that the eye- witnesses have improved their statements while appearing before the court and in the circumstances the appellant is entitled for acquittal.
8. On the other hand, learned Deputy Prosecutor-General opposes this appeal on the grounds that the appellant is nominated in the F.I.R, he has been fully implicated by the eye-witnesses Muhammad Anwar (P.W.7) and Muhammad Amin (P.W.8) who have no enmity with the appellant; that the delay in lodging of the F.I.R has reasonably been explained by the complainant in the F.I.R itself. Further contends that the ocular account is confidence-inspiring; that two blood-stained bricks were recovered by the police at the instance of the appellant and there is a positive report of the Serologist in this regard and that the prosecution has proved its case against the appellant beyond any shadow of doubt.
9. We have heard the learned counsel for the parties at length and have also scanned the record with their able assistance.
10. We have noted that for the following reasons the prosecution case against the appellant is doubtful:--
(i) No time of occurrence is mentioned in the F.I.R, but in the statements of P.W.7 and P.W.8 they have mentioned that IA occurrence took place at about 11-00 p.m. On 19-1-2006, but surprisingly the matter was reported to the police on 20-1-2006 at 11-00 a.m. And the explanation for this delay offered by the complainant that firstly he had approached Police Station Farid Nagar for reporting the matter, but afterwards came to know that the place of this incident falls within the jurisdiction of Police Station Saddar Pakpattan, is not convincing as both the said Police Stations were situated in the same city within an area of two kilometers inter se as stated by the complainant himself during the cross-examination.
(ii) P.W.7 and P.W.8 while appearing before the court have made dishonest improvements on material aspects of the case, to which they were duly confronted during their cross-examination, and this creates a serious dent in the prosecution case.
(iii) As per the prosecution case, place of occurrence was a `MUCHH' (a compound where people sit around fire in winter), but no other source of light has been shown and it has also been admitted by the draftsman (P.W.2), who has prepared the site plan, that no source of light was seen or mentioned by him and that neither the premises was electrified nor any such source was mentioned by the P.Ws. Investigating Officer (P.W.10), at page-32 of the paper book, has categorically denied the presence of any burnt or unburnt woods or even the ash at the place of occurrence. Police even did not join into investigation owner of the NUCHH', the compound where the occurrence took place. Investigating Officer has frankly conceded that he even did not probe regarding the ownership of the compound.
(iv) Site plan (Exh.PB) reveals .That after entering the gate the witnesses were standing at Point No.2, whereas the appellant has allegedly caused injuries to the deceased at Point No. 1. There is no other exit except the door at Point No. 3 from where the witnesses claim to have entered and the appellant is alleged to have escaped after the occurrence; therefore, if the appellant had fled away through Point No.3 then certainly he would have been intercepted by the P.Ws. And in such a situation they could easily overpower the appellant when admittedly he was not carrying any weapon. Complainant in this case has stated his non-intervention in the following words:-- "The accused inflicted 3 or 4 brick blows on the person of the deceased in our presence. He was holding a single brick in his hand. We did not try to apprehend the accused at that time. The accused managed to escape after throwing the brick at the spot."
Another unnatural conduct shown by P.W.7 we observed with concern is at page-23 of the paper book, in the following words:- "My clothes were not stained with blood and nor those of the P. Ws., as we did not touch the deceased. It is incorrect that we were not present at the spot and that to same reason our clothes were not stained with blood."
Here we respectfully refer the case of Liaquat All v. The State (2008 SCM R 95), wherein the Hon'ble Supreme Court has observed as under:- "Having heard learned counsel for the parties and having gone through the evidence on record, we note that although P. W. 7 who is first cousin and brother-in-law of Fazil deceased claims to have seen the occurrence from a distance of 30 ft. (as given in cross-examination) and two other witnesses namely Musa and Ranjha were also attracted to the spot but none rescued Fazil deceased and appellant had a free hand to inflict as many as 9 injuries on his person. The explanation given by these witnesses that since Liaquat All had threatened them therefore, they could not go near Fazil deceased to rescue him is repellant to common sense as Liaquat All was not armed with a fire-arm which could have scared the witnesses away. He was a single alleged assailant and if the witnesses were there at the spot they could have easily overpowered him. This makes their presence at the spot doubtful."
(v) Motive part of the occurrence as per F.I.R and statements of the witnesses before the learned trial court was that prior to this occurrence, an altercation took place between the deceased and the appellant on some money dispute. However, no independent witness in this respect has been examined and the complainant/P.W.7 in his cross-examination has stated that it was told to him by the police that the accused borrowed an amount of Rs.10,000 from the deceased. Therefore, we are of the view that the prosecution has failed to prove the motive in ID this case.
(vi) Recovery of bricks at the instance of the appellant also carries no value as it is the case of the complainant himself that at the time of occurrence the accused/appellant was holding single brick in his hand, which was thrown by him at the spot and the same was lying there when the police has inspected the spot. In this regard, P.W.8 Muhammad Amin also confirmed the stance of the complainant that accused was causing injuries to the deceased with one brick only.
Investigating Officer offered a very novel excuse for non-recovery of the bricks at the time of his first inspection, in the following words:- "The blood stained bricks were not taken into possession on the very first visit because being weapon of offence same were to be taken into possession on the pointation of the accused after his arrest."
In such a situation, recovery of two blood-stained bricks at the instance of the appellant and reports of the Chemical Examiner (Exh.PK) and of the Serologist (Exh.PK/1) are of no avail for the prosecution.
(vii) As far as the medical evidence is concerned, suffice it to say that the medical evidence may confirm the ocular evidence with regard to the receipt of the injury, kind of weapon, duration between the injury and the death, but it cannot connect the accused with the commission of the crime. It has been held in the case of Israr Ali v. The State (2007 SCM R 525) that medical evidence alone cannot corroborate, as the injury cannot speak of its author, and it does not establish the identity of the accused.
11. In a criminal case, the most important point for determination for a court is, whether the prosecution story is probable and a prudent man believes the same on the face of it. Here we respectfully refer the observation of the Hon'ble Supreme Court in the case of Mst. Shamim and 2 others v. The State and another (2003 SCM R 1466), which reads as under:-- "The prosecution story being the foundation on which edifice of the prosecution case is raised occupies a pivotal position in a criminal case. It should, therefore, stand to reason and must be natural, convincing and free from any inherent improbability. It is neither safe to believe a prosecution story which does not meet these requirements nor a prosecution case based on an improbable prosecution story can sustain conviction."
Keeping in view the above observation of the Hon'ble Supreme Court in this case, we are of the considered view that the prosecution story as narrated in the F.I.R. Does not appeal to reason and is doubtful in nature. It is cardinal principle of criminal jurisprudence that a single instance causing a reasonable doubt in the mind of the court entitles the accused to the benefit of doubt not as a matter of grace but as a matter of right. In this context, we respectfully rely on the case of Muhammad Akram vs. The State (2009 SCM R 230), wherein the Hon'ble Supreme Court has held as under:-- "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."
In the case of Muhammad Luqman v. The State (PLD 1970 SC 10), it was held that "a finding of guilt against an accused person cannot be based merely on the high probabilities that may be inferred from evidence in a given case. The finding as regards his guilt should be rested :surely and firmly on the evidence produced in the case and the plain inferences of guilt that may irresistibly be drawn from that evidence. Mere conjectures and probabilities cannot take the place of proof'. If a case was to be decided merely on high probabilities regarding the existence or non-existence of a fact to prove the guilt of a person, the golden rule of "benefit of doubt" to an accused person, which has been a dominant feature of the administration of criminal ,justice in this country with the consistent approval of the Superior Courts, will be reduced to a naught."
12. Therefore, Criminal Appeal No.04-3 of 2008 is allowed, the conviction and sentence recorded by the learned trial Court against the appellant through the impugned judgment dated 15-7-2006 are set aside and he is acquitted of the charge. The appellant is in jail, he shall be released forthwith if not required in any other case. Death sentence of convict Muhammad Rafique Shah alias Heera is not confirmed and Murder Reference No.614 of 2006 is answered in the Negative.