' MEHMOOD MAQBOOL BAJWA, J.---Conclusion of trial in case F.I.R. No,57 of 2005 registered under section 302 of The Pakistan Penal Code, 1860, at Police Station Sarwar Shaheed, Kot Addu, District Muzaffargarh, resulted in recording judgment of conviction under section 302(b) of The Pakistan Penal Code, 1860, on 26-7-2007 by learned Additional Sessions Judge, Kot Addu, awarding appellant sentence of death besides payment of compensation of one hundred thousand rupees under section 544-A of The Code of Criminal Procedure, 1898.
2. The appellant by preferring Appeal No,290 of 2007 has assailed the legality and validity of judgment of conviction, being disposed of by this judgment besides decision of Murder Reference No,472 of 2007, sent by trial Court for confirmation or otherwise of death sentence.
3. Crime Report bearing F.I.R. No,57 of 2005 (Exh.PA-1) was lodged by Khurshid Ahmad, complainant (P.W.7) against unknown accused but giving description of assailant with the allegations that on 14-4-2005 at about 8-30 p.m. He was present in the shop of his brother, Rasheed Ahmad (deceased), when unknown assailant entered in the shop of his brother having .30-bore pistol, asked his brother to handover valuables and then made fire aiming at his brother, landed on his left shoulder and after that he managed to escape. Muhammad Amin and Shamshad Ahmad (P.W.8) who were coming to the shop of the deceased, saw the said assailant, armed with pistol, while leaving the shop.
4. Dr. A.D. Khan (since dead) conducted autopsy on 'the dead boy and noted following injuries: "INJURIES:
(1) A round hole 3 cm x 3 cm with burning edges on front of lower side of left shoulder just 3 cm lateral to the left nipple.
(2) Lower part of nasal bone was fractured. Injury No,1 was entrance wound of fire arm and there is no exit wound of this injury on the body which means that the bullet was inside the chest cavity.
' Injury No,1 was very, severely bleeding".
' Probable time between injuries and death was 1 or 2 minutes while time elapsed between death and postmortem was, 1 or 1-1/2 hour.
' Copy of postmortem report is (Exh.PD) while pictorial diagram is (Exh.PD-1).
' Since the Medical Officer who conducted postmortem was dead, therefore, Dr. Muhammad Khizar Hayat (P.W.6) while appearing identified the handwriting and signature of the deceased.
5. On the day of arrest of appellant on 17-6-2006, pistol was recovered on his search taken into custody vide memo (Exh.PL) attested by Mukhtiar Ahmad (P.W.11).
6. The prosecution in order to prove its case produced Anwar Pervaiz, S.-I. (P. W.1), Ghulam Farid- Constable (P. W. 2), Muhammad Arif-Constable (P.W.3), Zahid Hussain, Head-constable (P.W.4), Muhammad Ramzan, Patwari (P.W.5), Dr. Khizar Hayat (P.W.6), Khurshid Ahmad, complainant (P.W.7), Shamshad Ahmad (P.W.8), Tariq Saleem Chohan, Magistrate (P.W.9), Ghulam Younis (P.W.10), Mukhtiar Ahmad, recovery witness (P.W.11), Azhar Hussain, S.-I. (P.W.12) and Ghulam Shabbir, S.-I. (P.W.13).
7. The appellant in his statement recorded under Section 342 of the Code of Criminal Procedure, 1898, denied the whole incriminating material put to him. Pleading falsity of allegation maintained that due to dispute of shop he was implicated falsely.
8. Heard.
' Learned counsel for the appellant while making reference to the contents of Crime-Report (Exh.PA-1) maintained that case was registered against inknown accused and the appellant was implicated falsely as it was unwitnessed occurrence. Referring to the statement of Azhar Hussain, (P.W.12), it was argued that appellant and one other was implicated by the complainant (P.W.7) and Shamshad Ahmad (P.W.8) through supplementary statements and as such identification test held under the command of Tariq Saleem Chohan, Magistrate (P.W.9) would not advance the plea of prosecution to prove the guilt of the appellant. Referring to the allegations contained in F.I.R.
(Exh.PA-1) and postmortem report (Exh.PD), it was submitted that ocular account does not find support from the medical evidence. Elaborating the argument, it was submitted that as per contents of F.I.R., only one fire was made by unknown assailant but two injuries have been shown in the postmortem report. Recovery of weapon of offence, submitted, would also not provide confirmation to ocular account in view of omission to collect crime-empty from the spot and report of Forensic Science Laboratory (Exh.PQ) just suggesting workable condition of weapon.
Argued, that prosecution failed to prove its case against the appellant beyond shadow of doubt.
' Repelling the arguments, the learned Deputy Prosecutor-General maintained that F.I.R. Was lodged within half an hour of the occurrence which by itself is sufficient to rule out element of false implication. Submitted that though case was registered against unknown accused but full description and particulars were disclosed in the crime Report and the appellant was duly identified during the course of identification test supervised by Judicial Magistrate (P.W.9) which was conducted according to the High Court Rules and Orders. Further submitted that objection raised by appellant that complainant knew him previously could not be proved. Also contended that ocular account finds full corroboration from medical evidence and recovery of weapon of offence. Argued that appellant failed to disclose circumstances prompting the complainant to implicate him falsely.
9. Case was registered against unknown accused. However, description of unknown assailant finds mentioned in F.I.R. Which was heavily relied upon by learned Deputy Prosecutor-General.
' Disclosure of particulars and description of unknown assailant would not advance the plea of prosecution in view of non-provision of light in the shop, where occurrence took place. Contents of the F.I.R. Are totally silent in this regard. Likewise, site plan with scale (Exh.PN) also does not point out any provision of light. Shamshad Ahmad (P.W.8) though did not witness the occurrence but deposed that near the gate of his brother's shop, he saw the unknown accused. It is also not known, how this witness was able to see the accused and disclose the feature of said assailant in the absence of provision of light at the place where he allegedly saw the unknown accused.
10. No doubt, the appellant was identified by complainant (P.W.7) and Shamshad Ahmad (P.W.8) during the identification proceedings (Exh. PH) supervised by Tariq Saleem Chohan, Magistrate (P.W.9) but identification of appellant would not advance the plea of prosecution for two-fold reasons. Firstly, in the absence of provision of light as discussed earlier both the witnesses (P.W.7 and P.W.8) were not able to know the features and description of assailant and as such identification of the appellant in the identification parade becomes meaningless. Secondly, it is not disputed that appellant and one other was implicated by way of supplementary statement by both the witnesses (P.W.7 and P.W.8) prior to identification test as disclosed by Azhar Hussain, S.-I..
(P.W.12) who stated that complainant and Shamshad made supplementary statement on 9-4- 2006. When the appellant was implicated by way of supplementary statement by disclosing his full particulars, how he remained stranger and unknown to the witnesses? In view of the matter, no implicit reliance can be placed upon the identification proceedings.
11. It is further to be noted that in the supplementary statement two persons including appellant were named. Second named accused, Muhammad Sharif was declared innocent by Azhar Hussain, S.-I. /I.O. (P.W.12).
Implication of two persons in the supplementary statement, while nomination of one assailant in the Crime Report clearly suggests that it is an un-witnessed occurrence.
12. Medical evidence also does not provide corroboration. According to the contents of F.I.R., deceased suffered one in shoulder but as per postmortem report (Exh.PD) there were two injuries including fracture of lower part of nasal bone.
' Even otherwise medical evidence cannot disclose and prove the identity of culprit.
13. Recovery of weapon of offence vide memo (Exh.PL) in the absence of collection of crime-empty would not advance the case of prosecution. Report of Forensic Science Laboratory (Exh.PQ) regarding working condition of pistol by itself would not prove the guilt of appellant in the absence of ocular account connecting the appellant in the commission of crime.
14. Learned Deputy Prosecutor- General submitted that both the witnesses identified the appellant in the Court, sufficient to prove his participation in the crime.
The argument too will not advance the plea of prosecution for two-fold reasons. Firstly, due to non- availability of provision of light, it was not possible for the witnesses (P.W.7 and P.W.8) to know and re-collected the features and description of, the appellant, enabling them to identify him as an assailant. Secondly, identification in the court may be taken into consideration if the accused was previously known to the witnesses or they got ample and sufficient time to see the accused time and again. Reference is made to "State through Advocate-General, Sindh, Karachi v. Farman Hussain and others" (PLD 1995 SC 1).
15. Argument of learned Law_ Officer that appellant failed to point out any malice on the part of complainant to implicate him falsely by itself would not be sufficient to prove culpability of appellant which was required to be proved by convincing and corroborative evidence. Suspicion, however, strong by itself cannot take the place of proof. Reliance is placed upon "YASIN alias GHULAM MUSTAFA v. THE STATE (2008 SCM R 336) and "VIJANT KUMAR and 4 others v. STATE through Chief Ehtesib Commissioner, Islamabad and others (PLD 2003 SC 56).
16. Pursuant to above, the prosecution failed to prove its case against the accused beyond shadow of doubt.
' There is no cavil to the proposition that for grant of benefit of doubt, there may not be many circumstances and a single circumstance creating reasonable doubt would be sufficient to grant benefit of doubt not as a matter of grace but as a matter or right. Reliance is placed on "TARIQ PERVEZ v. THE STATE" (1995 SCM R 1345), "AKHTAR ALI and others v. D THE STATE" (2008 SCM R 6), "GHULAM QADIR and 2 others v. THE STATE" (2008 SCM R 1221) "ALLAH BACHAYA AND OTHERS v. THE STATE" (PLD 2008 SC 349).
17. Epitome of above discussion is that while extending benefit of doubt in favour appellant, while accepting Criminal Appeal No,290 of 2007 titled "AMANAT ALI v. THE STATE", he is acquitted of the charge. He is released forthwith if not required in any other case.
18. Death sentence awarded to the appellant is not confirmed. Murder Reference No,472 of 2007 is answered in the Negative.