JUDGMENT MANZOOR AHMAD MALIK, J. - This judgment shall dispose of Criminal Appeal No. 1747/2003 (Muhammad Ismail, etc. v. The State) and Murder Reference No. 723/2010 (The State v.
Muhammad Jamil, etc.) sent by the learned Trial Court for confirmation or otherwise of the death sentence awarded to appellants No. 1 and 2 (Muhammad Jamil and Muhammad Asif), as both have arisen out of the same judgment dated 30.09.2003 passed by learned Addl. Sessions Judge, Okara in case F.I.R. No. 98/2002, dated 09.03.2002, registered under Sections 302/324/148/149, P.P.C, with Police Station Saddar Renala Khurd, District Okara.
2. After conclusion, of the trial, appellants No. 1 and 2 (Muhammad Jamil and Muhammad Asif) were convicted under Section 302(b), P.P.C, for the murder of Farman Ali and sentenced to death each, alongwith compensation/fine of Rs. 50,000/- each, to be paid to the legal heirs of the deceased, whereas appellants Nos. 3 and 4 (Iftikhar Ahmad and Muhammad Aslam) were convicted under Section 324, P.P.C, for causing injuries to Javaid Iqbal P.W. And sentenced to 10 years each. They were further ordered to pay a compensation of Rs. 25,000/- each to the injured PW and in case of default whereof, they shall further undergo for 3-months' S.I. However, the co- accused namely Muhammad Ahmad was acquitted from the charge by giving him benefit of doubt by the learned Trial Court.
3. Precisely, the facts of the case are that Muhammad Rafique (P.W-1) submitted an application (Ex.PA) to the S.H.O, Police Station Saddar Renala Khurd for registration of a criminal case stating therein that he was resident of Chak No. 3/1-L. Today, one of his relatives namely Farman Ali son of Shabhir, caste Rajput, no Chak No. 26/M, District Lodhran had come to his house as a guest and at about 8:00 p.m. The complainant, his brother Akbar Ali, nephew Javed Iqbal, Farman Ali and Muhammad Ahmad son of Umar Faruq were sitting in the Baithek when Muhammad Ahmad suggested Javed Iqbal to watch a film on that day on V.C.R., upon which, nephew of complainant Javed Iqbal, Farman Ali and Muhammad Ahmad went to take the V.C.R, and film on rent from Chak No. 2/1-L, but they did not come back after lapse of a considerable time, so, the complainant, his brother Akbar Ali and his nephew Pervaiz Akbar went behind them to Chak No. 2/1-L. It was stated in the F.I.R, that on the way, said Javed Iqbal. Farman Ali and Muhammad Ahmad (alongwith V.C.R, and film) met them and when they reached at the distance of 1 square of Chak No. 3/1-L, all of a sudden, Muhammad Asif son of Muhammad Abbas, Muhammad Jamil son of Riaz, armed with pistols 30-bore, Muhammad Aslam and Iftikhar alias Tota sons of Riaz Ahmad armed with dagger came and Muhammad Ahmad asked Muhammad Asif etc. That he had brought their enemy and do with them what they want. Muhammad Asif and Jamil extended a threat that if any person would come near they will kill him. Thereafter Muhammad Aslam and Iftikhar alias Tota attacked with their daggers upon Javed Iqbal with their common intention and Aslam inflicted dagger blows on the right and left side of his head, lips, near about his left eye and right finger of right hand.
Iftikhar accused also inflicted dagger blows on Javed Iqbal, which hit at his finger of left hand and at the left arm. Farman Ali came to rescue him, upon which Asif accused made a fire shot from his 30-bore pistol which hit the temple of Farman Ali and went through and through, Muhammad Jamil repeated 3 fire shots with his pistol, which hit Farman Ali on his chest and went through and through. Farman Ali rushed to save his life but he fell down at a distance of about 2-Acres and succumbed to the injuries. The complainant, his brother Akbar Ali, nephew Pervaiz Akbar and Javed Iqbal, witnessed the said occurrence. The motive as stated in the F.I.R, was that Asif (appellant) had a suspicion that his sister Mst. Sajida had illicit relations with Javed Iqbal.
4. After completion of investigation, challan was submitted. The appellants were charge-sheeted, to which, they pleaded not guilty and claimed trial.
5. In order to prove its case, prosecution examined as many as 16 witnesses in all and also tendered documentary evidence i.e. Report of Chemical Examiner as Ex.PR, report of Serologist as Ex.PS and report of Forensic Science Laboratory as Ex.PT.
6. The appellants in their statements recorded under Section 342, Cr.P.C, claimed their innocence and denied the prosecution allegations levelled against them. The appellants, however, did not appear in rebuttal as their on witnesses, as required under Section 340(2), Cr.P.C. However, they examined D.W-1 (Muhammad Jamil, SI) and D.W-2 (Wazir Ali son of Sardar Ali) in their defence.
Thereafter, the learned Trial Court convicted and sentenced the appellants as mentioned above.
7. Learned counsel for the appellants, in support of this appeal, contends that the appellants have falsely been implicated in this case; that there is an unexplained delay in the registration of F.I.R., which is clear from the facts that post-mortem on the dead-body of the deceased was conducted at 8.45 p.m. On 9.3.2002; that as a matter of fact two different occurrences have been combined by the prosecution in a single F.I.R.; that injured Javed Iqbal (P.W- 2) was taken to Police Station Renala Khurd on 8.3.2002, at about 10.05 p.m. And in this respect Rappat No. 21 (Ex.DE) was also recorded by Azadar Hussain Moharrar No. 1091, who subsequently appeared as P.W-10 and supported the contents of said Rappat (Ex.DE); that the Investigating Officer (P.W-12) deposed that he recorded the statement of the complainant (P.W-1) at about 1.00 p.m. At by-pass Shergarh Renala Khurd but the complainant on the other hand stated that he remained at the spot till 3.00 p.m. Whereas, the Investigating Officer stated that he despatched the dead-body from the spot to the mortuary at 2/2.30 a.m. And Allah Ditta (P.W-11) has stated that he took the dead- body from the spot and he reached the hospital at morning Azan time whereas, the post-mortem was conducted at 8.45 p.m.
On 9.3.2002 and the doctor (P.W-7) has stated that the application was marked to him at 8.40 p.m., that the injured (Javed Iqbal) was examined at the same night (8.3.2002) at Rural Health Centre, Renala Khurd; that in Ex.DE there is no mention of the names of the appellants and even there is no mention of the name of Farman Ali in any context; that the story of the prosecution, in the circumstances, is highly improbable because admittedly it was a dark-night occurrence as admitted by Muhammad Rafique (P.W-1) and Javed Iqbal (P.W-2) and they claimed that they identified the culprits in the torch light but no torch light was produced during the investigation.
Moreover, they had gone to fetch a V.C.R, and film but no film or V.C.R, was taken into possession nor Khalid shopkeeper, from whom film and V.C.R, were taken on rent, has been produced during the investigation; that deceased received four fire-arm injuries and there is blackening around the wounds of the deceased, which belied the ocular account as the deceased was fired at from a close distance; that Javaid Iqbal, who, as per prosecution, was the real target has received injuries with sharp-edged weapon, whereas an innocent person was done to death by fire-arm which is not probable; that the motive part of the occurrence has also been belied by the prosecution witnesses as P.W-2 (Javed Iqbal) has stated that he had no illicit relations with the sister of Asif Ali and no independent witness has been produced to prove the motive; that the prosecution story is full of doubts and appellants are entitled to the benefit of every doubt not as a matter of grace but as a matter of right; that as per prosecution dagger was recovered from Iftikhar Ahmad appellant on 25.04.2002, while 30-bore pistol was recovered from Muhammad Jamil appellant on 25.04.2002, whereas he was arrested on 20.4.2002; crime empties were sent to Forensic Science Laboratory for comparison on 22.04.2002 after the arrest of Muhammad Jamil but there is no evidence to the effect that who has taken these empties to the Laboratory and as such no reliance can be placed on the report of the Laboratory; that the presence of the eyewitnesses is belied from the fact that they all have stated that deceased Farman Ali after receiving the injuries ran away and fell at a distance of two acres, whereas the doctor (P.W- 7) has stated that deceased was not in a position to run after receiving the injuries. Learned counsel, lastly contends that statement of the Javaid Iqbal, injured is of no avail for the prosecution because mere injuries on his person will not make him a truthful witness as his statement is belied by other circumstances.
8. Conversely, the learned Deputy Prosecutor General for the State vehemently opposed this appeal on the grounds that the appellants are specifically named in the F.I.R, with specific roles for causing injuries to the deceased and in this case there is an injured P.W. (Javaid Iqbal) who has fully supported the prosecution case. The prosecution has proved its case through ocular as well as medical evidence and recovery of weapon of offence i.e. Dagger and 30-bore pistol; that the report of the Forensic Science Laboratory is also positive; that the statements of eyewitnesses inspiring confidence, and despite lengthy cross- examinations nothing adverse was brought on the record; that a specific plea was taken by the appellants in their statements recorded under Section 342, Cr.P.C, and it was for the appellants to prove their plea but no attempt has been made by the appellants to prove the same; that the witnesses have no enmity with the appellants, therefore, no chance of false implication and even substitution is a real phenomenon. Therefore, this appeal may be dismissed and conviction and sentence awarded to the appellants by the learned Trial Court be maintained.
9. We have heard the learned counsel for the appellants as well as learned Deputy Prosecutor General at length, have given anxious consideration to their arguments and have also scanned the evidence available on record.
10. The main points for determination in this case are whether the murder of Farman Ali and injuries to Javaid Iqbal took place in one occurrence, as claimed by the prosecution or these were two different occurrences, i.e. One in which Javaid Iqbal was injured and in other, where Farman Ali was murdered as asserted by the defence side and whether F.I.R, was got registered at the time as claimed by the prosecution. The prosecution case is that written application Ex-PA was submitted by Muhammad Rafique (PW-1) to Muhammad Afzal Khan, SI (PW-13) at 1.00 a.m. (night) on 09.03.2002 when PW-13 was near bypass Shergar Road, Renala Khurd alongwith police officials in connection with patrol duty. Muhammad Afzal Khan, SI (PW.13) has stated that on 09.03.2002 at about 12.30 a.m. (night) when he was present near bypass Shergarh Road, Renalla Khurd alongwith other police officials in connection with patrol duty, Muhammad Rafique (PW-1) appeared before him and produced written application (Ex.PA) which was sent to police through Muhammad Sadiq 853/C for formal registration of the F.I.R. (Ex.PA/1). Usually, written application is submitted at the police station for registration of the F.I.R, and if the complainant comes across a police officer outside the police station, then his statement is recorded by the police officer, but, in the instant case surprisingly, the written application which, as per Muhammad Rafique (PW-1), was written in the presence of the police officer, was submitted to Muhammad Afzal Khan, SI (PW-13) when he was on patrol duty. PW-13 has further stated that the dead-body was despatched from the spot to the mortuary on a tractor trolley at 2/3.00 a.m. (night) on 9.3.2002 through Allah Ditta Constable (PW-11). He has also stated that Okara mortuary may be at a distance of fifteen kilometers from Renala Khurd, which is connected with a metal road and place of occurrence is also connected with Renala Khurd with metal road. On the other hand, Allah Ditta (PW-11) stated that he reached the mortuary at about morning Azan time, whereas, Dr. Muhammad Ashraf (PW-7) stated that application for post-mortem examination (Ex-PH), on the dead-body of Muhammad Farman was marked to him by the Medical Superintendent, DHQ, Hospital, Okara on 09.03.2002 at 08.40 p.m.
Vide order dated Ex-PH/1 and he started post-mortem examination without any delay at 08.45 p.m.
Normally, the time is not mentioned on the application received for post mortem examination but in this case, the Medical Superintendent, DHQ, Hospital, Okara has mentioned the exact time i.e. 8.40 p.m. On the application which was submitted by Muhammad Afzal Khan, SI (PW-13) for post- mortem examination. Now the question arises that if the dead-body was present in the mortuary at morning Azan time as stated by Allah Ditta, Constable (PW-11), then why the post-mortem examination was not conducted and way the Medical Superintendent, DHQ, Hospital, Okara has mentioned time on the application as 8.40 p.m. Doctor Muhammad Ashraf (PW-7) has further stated that he started post-mortem examination without any delay and even otherwise, there is no reason brought forward by the prosecution for conducting the post-mortem examination at 08.45 p.m. On 9.3.2002. Whereas, injured in this case, Javaid Iqbal was medically examination 08.03.2002 at Rural Health Centre, Renala Khurd at about 11.30 p.m. By Dr. Muhammad Hussain (PW.8).
11. Another very important circumstance in this case is that Javed Iqbal injured (P.W.2) was taker to Police Station Saddar Renala Khurd by his father Akbar Ali (given up PW), who got recorded a Rappat (Ex.DE) at the police station and the said Javed Iqbal while appearing as P.W-2 had admitted that he was taken to the police station. However, he has shown his ignorance whether hits father made a statement for recording Rappat No. 21, available on the record (Ex.DE). The said Rappat (Ex.DE) was proved by Azadar Hussain (PW-10) who has categorically stated that on 08.03.2002, he recorded Rappat No. 21 (Ex.DE) at 10.05 p.m. On the statement of Akbar Ali (given-up P.W.), which was signed by him (Akbar Ali). He has further stated that he examined Javaid Iqbal and prepared injury statement Ex.PK and sent him (Javaid Iqbal) to Medical Officer, Rural Hospital, Renala Khurd under the custody of Allah Ditta No. 137/C. The original report was seen by the learned Trial Court and returned, In the said Rappat it is mentioned that Master Abbas and others have injured his son Javed Iqbal. There is no mention of Farman Ali deceased or the appellants in the said Rappat (Ex.DE) in any context. Injured Javed Iqbal was examined on 8.3.2002 at 11.30 p.m. By Dr. Muhammad Hassan (P.W-8) at RHC Renala Khurd, whereas post-mortem on the dead-body of the deceased was conducted on next day at 9.45 p.m.
12. In this case as per prosecution the main target was Javed Iqbal but surprisingly he has not received any fire-arm injury, whereas Farman Ali deceased, who had no concern or enmity with the appellants, received fire-arm injuries and Farman Ali received fire shots from a close range as there is blackening around the wounds. Therefore, considering all aspects of the case, it is held that F.I.R. (Ex.PA/1) was not registered at 1.15 p.m. On 9.3.2002 as being claimed by the prosecution, It was registered later on, so the chances of deliberation and concoction cannot be ruled out. The circumstances also suggest that Javed Iqbal was injured in one incident and Farman Ali was murdered in another incident. But, both these incidents have been combined by the prosecution in one F.I.R.
13. The contention of the learned DPG that statement of Javed Iqbal (P.W.2) be accepted as he was injured in the occurrence is not convincing because an injured witness is not necessarily a truthful witness and his testimony is also subject to scrutiny in accordance with the well-settled principles of criminal administration of justice. Reliance is placed on Muhammad Pervez & others v. The State & others (2007 SCM R 670) wherein, at page No. 681, it was observed as under:- "It is also a settled law that injuries on a P.W. Only indication of his presence at the spot but is not informative prove of his credibility and truth."
The presence of the eye-witnesses at the place of occurrence has also become doubtful because of another circumstance. All the eye-witnesses have stated that Farman Ali deceased, after receiving the fire-arm injuries ran away and fell at a distance of about two acres, whereas Dr. Muhammad Ashraf PW-7 (who conducted the post-mortem examination) has stated that after receiving the injury the deceased was not in a position to runaway, because skull was fractured and brain matter was shattered.
14. Admittedly, it was a night-time occurrence. The complainant Muhammad Rafique (PW-1) has admitted that there was no moonlight at the time of occurrence and it was a dark-night. The claim of the eye-witnesses, that they witnessed the occurrence in torches' light, is also not believable because Muhammad Rafique (PW-1) has admitted that he was not having any torch with him when he met the Investigating Officer on Shergarh Road, where the submitted application for the registration of the F.I.R. Even no torch was produced during the investigation.
15. As far as recovery of pistol from Muhammad Jamil and recovery of Khanjar from Iftikhar Ahmed are concerned, since ocular evidence has not been believed by us, therefore, these recoveries have no value as the same are only corroborative in nature. Reliance is placed on Noor Muhammad v.
The State and another (2010 SCM R 97) wherein, at page No. 104, it was observed as under:- "...... Even otherwise the recovery of crime empty or rifle with matching report of F.S.L, is a corroborated piece of evidence, which by itself is not sufficient to convict the accused in the absence of substantive evidence. Reference is invited to Ijaz Ahmed v. The State 1997 SCM R 1279. It was held in the case of Asadullah Muhammad All PLD 1971 SC 541, that corroborative evidence is meant to test the veracity or ocular evidence. Both corroborative and ocular testimony is to be read together and not in isolation. In the case of Saifullah v. The State 1985 SCM R 410, it was held that when there is no eye-witness to be relied upon, then there >s nothing which clan be corroborated by the recovery."
In this case, the prosecution story is not free from doubts, which in the circumstances of the case does not appear to be probable. If there is a single doubt in the prosecution story, the benefit thereof must be given to the accused not as a matter of grace but as a matter of right, In this context reliance is placed on Muhammad Akram v. The State (2009 SCM R 230) wherein, at page 236, it was held as under:- "13. The nutshelll 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."
16. In the afore-referred circumstances of the case and after having sought guidance from the above case-law, we are of the considered view that the prosecution has failed to prove its case against the appellants beyond any shadow of doubt, therefore, this Criminal Appeal is allowed, the impugned judgment is set aside, the appellants are acquitted of the charges. Appellants Muhammad Aslam and Iftikhar Ahmad are on bail and shall be discharged of their bail/surety bonds. The remaining appellants, namely, Muhammad Jamil and Muhammad Asif shall be released, if not required in any other case.
17. The Murder Reference is answered in the negative and the death sentence of appellants Muhammad Jamil and Muhammad Asif is not confirmed.