MANZOOR AHMAD MALIK, J.---This judgment shall dispose of Criminal Appeal No.413 of 2006 titled as "Muhammad Shahbaz v. The State" as well as Murder Reference No.194 of 2006 titled as "The State v. Muhammad Shahbaz" as both these matters have arisen out of the same case i.e. F.I.R.
No.74 of 2005 dated 9-5-2005 offence under sections 302 and 34 P.P.C. Registered at Police Station Saddar Toba, District Toba Tek Singh.
2. Muhammad Shahbaz, appellant has filed Criminal Appeal No.413 of 2006 against the judgment dated 28-2-2006, whereby he was convicted by the learned Sessions Judge, Toba Tek Singh under section 302(b), P.P.C. And sentenced as under:-- "Accordingly 1 convict accused Muhammad Shahbaz under section 302(b), P.P.C. For committing Qatl-e-Amd of Jamila Bibi and award him punishment of death. He shall be hanged by his neck till he is dead. The death sentence shall be subject to confirmation by the Hon'ble Lahore High Court, Lahore. Accused Muhammad Shahbaz shall also pay Rs.1,00,000 as compensation under section 544-A Cr.P.C. To the legal heirs of the deceased and in case of nonpayment of compensation to further undergo S.I for six months. The accused has been informed that he can file appeal against this decision within 7 days. Accused Muhammad Shahbaz is also convicted under section 459, P.P.C. For committing lurking house trespass in the house as the place of occurrence is part of house of complainant and award him R.I for 10 years."
Learned trial court has sent Murder Reference No,194 of 2006 for confirmation or otherwise of the sentence of death awarded to Muhammad Shahbaz (convict) as required under section 374, Code of Criminal Procedure.
3. Prosecution story, as stated in F.I.R. (Exh.PD/1) registered on the basis of complaint (Exh.PD) submitted by Shaukat Ali (P.W.10), is that on 9-5-2005 said Shaukat Ali complainant moved an application to S.H.O. Police Station Saddar Toba against Muhammad Shahbaz son of Muhammad Latif and Muhammad Tariq son of Shah. Muhammad both Arain by caste sand residents of Chak No.375/JB, Toba Tek Singh with the allegation that on 4-5-2005, he was present on his duty whereas his wife Mst. Jamila Bibi and children were present in the house. His son Tauheed aged 9/10 years went to graze his goats at 3-00 p.m. Outside his house. One of the goat entered into the fields of Muhammad Latif father of Shahbaz appellant which was ousted by Muhammad Shahbaz and he also slapped Tauheed. Said son of the complainant narrated this occurrence to his mother.
In the meanwhile Muhammad Shahbaz appellant followed Tauheed and reached the house of complainant and started abusing. Mst Jamila Bibi (deceased) wife of the complainant also abused Shahbaz appellant whereupon Shahbaz appellant left the spot while extending threats.
After 5 or 10 minutes Shahbaz accused while armed with rifle along with Muhammad Tariq (since acquitted by the learned trial court) came on a Suzuki Motorcycle and trespassed into the house of the complainant. Tariq co-accused of the appellant (since acquitted) raised lalkara that Jamila Bibi be taught a lesson for abusing him. Thereafter Shahbaz appellant repeatedly made firing upon Mst. Jamila Bibi with his rifle. First fire hit Jamila Bibi in her abdomen; second fire landed on the right upper arm; and third on the left arm. She made a turn to save her life, upon which fourth fire hit her on the right side of her back. Consequently she fell down on the ground. The occurrence was witnessed by Muhammad Naveed son of the complainant and Muhammad Sharif son of Ghulam Muhammad (P.Ws.) and other people of the village, who attracted to the spot while hearing the firing. The assailants decamped from the spot while raising lalkaras .
' The motive behind the occurrence was that Shahbaz appellant abused and slapped the son of complainant upon entering the goat in his fields and the deceased Jamila Bibi reprimanded Shahbaz appellant. Mst.Jamila Bibi was removed to the Civil Hospital, Toba Tek Singh from where she was referred to Allied Hospital, Faisalabad due to her serious condition.
' It is pertinent to mention here that initially the case was registered under sections 324/34, P.P.C.
And subiequently on 10-5-2005, upon the death of Mst.Jamila Bibi, offence under sections 302/34, P.P.C. Was added.
4. Sultan Ali S.I (P.W.13) was posted at Police Station Saddar Toba Tek Singh. On 9-5-2005 he was present at Bye pass Chat: No.321/JB alongwith the other police officials on patrol duty, at about 5- 00 p.m. At that place and time complainant Shaukat Ali presented to him application (Exh.P.D).
After necessary proceedings, he sent (Exh.P.D) to Police Station Saddar Toba Tek Singh through Rashid Ahmad 637/C for registration of formal F.I.R. Then he visited the spot and prepared rough site plan of the place of occurrence (Exh.P.R). On the same day blood-stained earth was secured from the spot which was made into sealed parcel and it was taken into possession vide memo (Exh.P.N). He also took into possession four crime empties of 8 MM (P.8/1-4), vide memo (Exh.P.P).
The crime empties were made into sealed parcel. On 10-5-2005 he moved an application (Exh.PS) to the Medical Officer for recording the statement of Jamila Bibi but the doctor did not allow him to record the, statement. Complainant produced the clothes i.e. Shalwar (P.4), shirt (P.5), kerchief (P.6) and chadder (P.7) of Jamila Bibi injured which were blood-stained and he took those clothes into possession vide memo. (Exh.P.M). On the same day he received information about the death of Mst.
Jamila Bibi through her husband. Section 302, P.P.C. Was added and then he went to DHQ hospital, Toba. Tek Singh where the dead body of Mst. Jamila Bibi was lying. Exh.P.B is the inquest report. 1 le also prepared the injury statement of Jamila Bibi deceased (Exh.P.C). The dead body of Mst. Jamila Bibi was handed over to Muhammad Anwar 113/C who escorted the same to the mortuary for its autopsy. Shaukat Ali complainant produced the death certificate. Of Mst. Jamila Bibi (Exh.PL). On 11- 5-2005 Muhammad Anwar Constable No.113 produced, last worn clothes of the deceased i.e. Shalwar (P.1), Shirt (P.2) and kerchief (P.3) which were taken into possession vide memo (Exh.P.F). He got prepared the scaled site plan from the draftsman on 12-5-2005. On 16-5-2005 he arrested Tariq co-accused of the appellant. On 19-5-2005 he arrested Shahbaz appellant and on his personal search pistol was recovered from his possession. On 24-5-2005 Muhammad Shahbaz appellant while in police custody led to the recovery of rifle 8 MM (P.9) from a room of his ' house, which was taken into possession vide memo (Exh.P.Q). He recorded the statements of the P. Ws. On relevant dates and got prepared the challan from the S.H.O. During his investigation he found Muhammad Tariq co-accused of the appellant (since acquitted) as innocent and after due verification he was produced before the Magistrate for his discharge who did not agree with the discharge report.
5. The appellant and his co-accused Muhammad Tariq (since acquitted) were summoned to face the trial. Copies of the documents, as required under section 265-C, Code of Criminal Procedure, were provided to them on 6-12-2005 and formal charge was framed against them on 16-1-2006, to which they pleaded not guilty and claimed trial. In order to prove its case, prosecution examined thirteen witnesses in all.
6. The learned District Attorney tendered in evidence report of Chemical Examiner (Exh.PT) and its relevant report of Serologist (Exh.PT/1) and the report of Forensic Science Laboratory Exh.PU and closed the prosecution case on 20-2-2006. Statement of the appellant under section 342, Code of Criminal Procedure was recorded on 24-2-2006. To a question as to why the case against him and why the prosecution witnesses deposed against him, the appellant replied as under:-- "The P. Ws. Are closely related inter se and interested witnesses. None from the vicinity supported the version of the complainant except his father and son. In fact Pervaiz alias Paija, Irfan . Alias Phana, lqbal etc. Are the nefarious figures of the vicinity and involved in so many dacoity and murder cases and have been declared proclaimed offenders from different courts. The complainant as being police official and his deceased wife used to supply spy information to the police regarding the presence of these POs in the village. Prior to this occurrence the above mentioned POs along with their companions made murder assault upon the complainant and his wife and in this respect complainant lodged the F.I.R. No.227 of 1997 under sections 324/ 452/337- L(2)134/109.,. P.P.C. At Police Station Saddar Toba Tek Singh against my. Relatives Ateeq etc. And that case was cancelled as being false. The complainant is in habit of lodging false F.I.Rs. In this respect photostat copy of the F.I.R. No.227 aforesaid is Exh.D.E. In this case I and my father supported Ateeq etc. As being innocent and the complainant nursed grudge against me in this regard. In fact on the fateful day some unknown persons inimical towards the complainant fired at her wife and injured her but the complainant after due deliberations and consultations on the 5th day of the occurrence lodged this false F.I.R. Against me along with other cases under Arms Ordinance. Prior to this occurrence about 29 people of this village were done to death by unknown culprits on different occasions.' I have been falsely implicated in this case due to enmity."
7. After conclusion of the trial, the learned trial court convicted and sentenced the appellant as detailed above. However, through the same judgment Muhammad Tariq co-accused of the appellant was acquitted. Against acquittal of said Muhammad Tariq, complainant filed Criminal Appeal No.553 of 2006, which was dismissed in limine by a learned Division Bench of this Court vide order dated 19-7-2006. Shaukat Ali complainant also filed Criminal Revision No.382 of 2006 for enhancement of the amount of compensation, which was dismissed as not pressed by a learned.
'Single Judge of this Court vide order dated 31-5-2006.
8. Learned counsel for the appellant, in support of this appeal, contends that as per prosecution case, this incident took place on 4-5-2005, whereas the case was got registered on 9-5-2005 i.e. After a delay of five days and there is no satisfactory explanation for this inordinate delay. Further submits that the complainant of this case, who happens to be the husband of Mst. Jamila Bibi, is a Police Constable and as per MLR (Exh.PG), Mst.Jamila Bibi was taken to the hospital in an injured condition by Shaukat Ali son of Muhammad Sharif, husband of Mst.Jamila Bibi i.e.' complainant of case at 6-30 p.m. On 4-5-2005 but even then the matter was not reported to the police till 9-5- 2005; that it is the case of the prosecution that the complainant was not present at the time of occurrence whereas Muhammad Naveed (P.W.11) and Muhammad Sharif (P.W.12) witnessed this occurrence but none of those P.Ws. Reported this matter to the police; that most important witness of this incident was Tauheed, son of the complainant as it is the case of the complainant that the incident started because of said Tauheed, who had gone for grazing the goat and one goat entered the fields of the appellant, whereupon a quarrel took place, but said Tauheed was neither cited as a prosecution witness nor produced before the learned trial court, therefore, an adverse inference under Article 129(g) of the Qanun-eShahadat Order, 1984 can safely be drawn against the prosecution. Further submits that the recovery of rifle at the instance of the appellant and the positive report of Forensic Science Laboratory (Exh.PU) is of no avail for the prosecution because of the simple reason that the empties were taken into possession on 9-5-2005, which even otherwise is highly improbable and same were deposited in the office of Forensic Science Laboratory on 26- 5-2005 whereas appellant was arrested on 19-5-2005 and the rifle (P.9) was allegedly recovered on 24-5-2005, therefore, the empties were deposited in the. Office of Forensic Science Laboratory after the arrest and even alleged recovery of rifle at the instance of the appellant; that there is a pond and a school close to the house of the complainant and place of recovery of crime empties is an open place, so it is highly improbable that for five days, empties remained available at the said place; that the prosecution evidence has not been believed by the learned trial court against the co-accused of the appellant namely Muhammad Tariq and he was acquitted by the learned trial court, appeal against his .Acquittal has been dismissed by this Court, therefore, the am evidence cannot be believed against the appellant without an independent corroboration, which is very much lacking in this case; that in the circumstances, the case of the prosecution against the appellant is highly doubtful in nature and the appellant is entitled to the benefit of doubt not as a matter of grace but as of right.
9. On the other hand, learned Deputy Prosecutor-General, assisted by learned counsel for the complainant, opposes this appeal on the grounds that the appellant is nominated in the F.I.R. With the specific role; that the delay in the circumstances has been explained satisfactorily and it is not fatal to the prosecution story; that the appellant has not been able to bring on record any enmity between him and the complainant side and in such like cases, the substitution is a rare phenomenon; that the ocular account is fully supported by medical evidence and also corroborated by the recovery of rifle at the instance of the appellant and positive report of Forensic Science Laboratory (Exh.PU).
10. We have heard the arguments of both sides and perused the record with their able assistance.
11. It is the prosecution case that this incident took place on 4-5-2005 at 3-00 p.m. In Chak No.375/JB within the jurisdiction of Police Station Saddar Toba, District Toba Tek Singh. The place of occurrence is at a distance of about 17 K: M.From the said Police Station but surprisingly the matter was reported to the police on 9-5-2005 at 5-15 p.m. i.e. After a delay of about five days.
12. We have noted the following defects/infirmities/discrepancies in the prosecution case:--
(i) The complainant of the case is a Police Constable, therefore, it can safely be presumed that he was aware of the legal formalities. The occurrence took place on 4-5-2005 in the house of the complainant, which is situated in a village of Central Punjab. The concerned Police Station i.e. Police Station Saddar Toba was at a distance of about 17 K.M. From the place of occurrence but surprisingly the incident was reported to the police on 9-5-2005, i.e. After five days. The explanation given by the complainant in the F.I.R. For this inordinate delay, which is to the effect that he remained busy in the treatment of his wife, is neither plausible nor convincing. Moreover, in the F.I.R., it is the case of the complainant that this incident took place in the presence of Muhammad Naveed (P.W.11) and Muhammad Sharif (P.W.12). Muhammad Naveed (P.W.11) is real son of the deceased woman whereas Muhammad Sharif (P.W.12) is her father-in-law but none of them reported this incident to the police. It is true that delay per se is no ground for discarding the prosecution case and if it is reasonably explained, it can be ignored but in the instant case, the situation is altogether different and there is no such explanation.
(ii) The presence of P.W.11 (Muhammad Naveed) and P.W.12 (Muhammad Sharif) at the place of occurrence becomes doubtful because of another reason. It is the case of the complainant that he was not present at the time of occurrence and was available on his official duty in the office of A.S.P. Gojra. The MLR of Mst.Jamila Bibi deceased (Exh.PG) reveals that she was brought to the hospital on 4-5-2005 at 6.30 p.m. By Shaukat Ali complainant and even it is mentioned in the F.I.R.
That the complainant got her wife medically examined from the hospital. If these two witnesses were present at the spot, then question arises why they did not take Mst.Jamila Bibi to the hospital.
(iii) It is the case of the prosecution that four empties (P.8/1-4) were recovered from the. Spot on 9- 5-2005. We have examined the site plan (Exh.PE) wherefrom the empties were recovered. It is an open place, accessible to the public, thus, it is improbable that for five days, empties remained available at the said place.
(iv) The appellant was arrested on 19-5-2005. The rifle (P.9) was allegedly recovered at his instance on 24-5-2005 and it was deposited in the office of Forensic Science Laboratory on 26-5- 2005. Four crime empties of 8 MM (P.8/1-4) were taken into possession vide memo (Exh.PP) on 9-5- 2005 and the same were deposited in the office of Forensic Science Laboratory on 24-5-2005 i.e. After the arrest and recovery of rifle at the instance of the appellant, therefore, the positive report of Forensic Science Laboratory ,(Exh.PU) is not helpful for the prosecution.
(v) It is the prosecution's case that this incident took place because a goat of complainant side entered into the fields of appellant, when son of the complainant namely Tauheed was grazing the goat and Tauheed was abused and chased to the house of complainant by the appellant, where abuses were exchanged between the deceased and the appellant but said Tauheed did not appear before the learned trial court and even his name is not mentioned in the calendar of witnesses, so in these circumstances, while relying on "Muhammad Rafique and others v. The State"
(2010 SCM R 385) an adverse inference is drawn against the prosecution in view of Article 129(g) of the Qanun-eShahadat Order, 1984.
(vi) The prosecution evidence has been disbelieved to the extent of Muhammad Tariq, co-accused of the, appellant, who has been acquitted by the learned trial court and appeal against his acquittal has been dismissed by this Court.
(vii) It is the case of prosecution that Mst. Jamila Bibi remained alive for five days after the incident, though there is an application on the record (Exh.PS) that the doctor was requested by the Investigating Officer (P.W.11) to grant permission for recording her statement but there is no report of the doctor that she was not fit for making statement.
13. Because of the above mentioned reasons the prosecution case is of doubtful 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 Masih 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 not 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". In 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 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 his mistake in punishing an innocent."
14. For the foregoing reasons, while extending the benefit of doubt this appeal is allowed, conviction and sentence awarded to the appellant vide judgment dated 28-2-2006 passed by the learned trial court is set aside and the appellant is acquitted of the charge framed against him. He is in jail.
He be released forthwith if not required to be detained in any other case.
15. Murder Reference No.194 of 2006 is answered in the NEGATIVE and the sentence of death awarded to Muhammad Shahbaz (convict) is NOT CONFIRMED.