Kh. Muhammad Sharif, J.--This judgment shall dispose of Criminal Appeal No. 63/2002(Rab Nawaz etc. us. The State) Criminal Revision No.. 44/2002 (Muhammad Nawaz Khan us. Muhammad Nazir etc.), filed for enhancement of the conviction and sentence awarded to the convict Nazir, and Murder Reference No. 83/2002(sent by the learned trial Court for confirmation of death sentence or otherwise), as they arise out of the same the judgment dated 4.2.2002 passed by the learned Sessions Judge Attock, whereby, following sentences and convictions were passed:--
(i) Appellant Rah Nawaz was convicted under Section 302/34, PPC and sentenced to death with a compensation of Rs. one lac to be paid to the legal heirs of the deceased as provided under Section 544-A, Cr.P,C, in default whereof to further undergo RI for two years;
(ii) Appellant Muhammad Nazir was convicted under Section 302/34, PPC and sentenced to imprisonment for life with a compensation of Rs.one lac to be paid to the legal heirs of the deceased as provided under Section 544-A, Cr.P.C, in default whereof to further undergo RI for two years.
2. Brief facts of the case, as given by the complainant Muhammad Nawaz Khan (PW 14) in Exh.PB/1 to the police on 19.8.2000 at 7.15 p.m, at Adda Qutbal are that his son Tariq Ali Khan was married in the house of Ghulam Ahmed Khan of Village Malloo, his said son was posted 4/5 years go as a dispenser in a dispensary of District Council Village Qutbal, today he came to see his son and children in Village Malloo, his son Tariq went on duty, at about 6 pm. he received information that the dead body of his said son Tariq Ali Khan . was lying on a Katcha path in Kala Chide Hills within the area of Village Doyan and his motorcycle was also there at some distance, he reached at the spot alongwith Maqsood and found the dead body at the said place, five J2 bore firearm injuries were found on his body, the accused had removed the dead body to the fields, he was murdered due to illicit relations of his son with Kaniz Bibi daughter of Rafiq, Kaniz Bibi was a lady teacher and the love letters written by her to his son are in the possession of his daughter in law Robina Shaheen (widow of the deceased), relatives of the said Kaniz Bibi have murdered his son and the case be registered against unknown persons. The motive set up by the prosecution was illicit relations between his deceased son and Kaniz Bibi..
3. During the course of investigation both the appellants were arrested and found guilty. After having competed legal formalities, challan was submitted by the police against the accused before the learned Court of competent jurisdiction, where, accused denied the charge and claimed trial. The prosecution, in order to prove its case against the accused. produced 16 prosecution. witnesses during the trial including DW1,
4. Learned counsel for the appellants in support of this appeal submits that the appellants have falsely been implicated in this case; that the motive was not proved because the alleged love letters though were sent to the Handwriting Expert but he was not produced and mere report of the Handwriting Expert Exh.PQ is no conclusive proof; that only two crime empties were recovered from near the dead body of the deceased; that the appellants were arrested on 1.9.2000, .12 bore carbine was recovered from Rab Nawaz appellant on 6.9.2000, carbine was sent to the Firearm Expert on the same day which has no evidentiary value; that Amin (PW12) is not named in the FIR although he claims himself to be the eye-witness of the occurrence but did not either inform the father or widow of the deceased about the occurrence although he had come to the house of the complainant for condolence. So far as extra judicial confession furnished by Mushtaq (PW13) is concerned, he is closely related to the deceased, allegedly made it on 23.8.2000, he does not know name of the deceased's wife, he is resident of a different place in Bhango Attock, he is not an influential man to show favour to the accused, his conduct is most unnatural, he did not apprehend the accused at the time of disclosure, he did not even inform the police or the complainant; that according to the extra judicial confession appellant Rab Nawaz made two fires but according to the postmortem examination there are 4/5 firearm injuries on the person of the deceased so there is a glaring contradiction. Further contends that there is evidence of PW9 Fazal and PW10 Khurshid against Nazir appellant but that is only of last seen and there is no other evidence against the Appellant Nazir, Although according to PW10 he claims himself to have recorded his statement on 20.8.2000 but in fact it was recorded on 29.9.2000 i.e. one month after, the occurrence. Further argues that the dead body of, the deceased was recovered six hours after seeing the deceased in the company of the appellant from a far off place so it cannot be termed as a last seen evidence; that the prosecution case is full of doubts benefit of which may be extended to the appellants; that the prosecution has failed to prove its case against the appellants and that the appellants are entitled to acquittal by this Court.
5. Learned counsel, for the complainant assisted by the learned Additional Prosecutor General Ch. Muhammad Tariq, submits that the complainant or the PWs have no enmity to falsely depose against the appellants; that the motive was proved through report Exh.PQ qua the love letters; that the appellants could have made application for summoning the Handwriting Expert; that as per PW15 Inspector/SHO the date qua statement of Khurshid was inadvertently written as 29.9.2000 which was 20.8.2000; that the reports of the Serologist, Chemical Examiner and Firearm Expert are positive in nature; that once the documents exhibited during trial cannot be objected to; that mere delay in dispatching the incriminating articles to the Expert is inconsequential and that the judgment of the learned trial Court is a weighty one and this appeal is liable to be dismissed by this Hon'ble Court. The learned Additional Prosecutor General has placed reliance on 2007 SCM R 146.
6. We have heard learned counsel for the parties, have gone through the record with the able assistance of the learned counsel for the respective parties and have also given anxious consideration to the submissions made at the bar by the learned counsel for the parties.
7. The occurrence in this case had taken place on 10.8.2000, ,matter was reported to the police on the same day at '7.45 'p.m. but no time of occurrence was mentioned.
8. The motive in this case was that there were illicit relations between the deceased and Kaniz Bibi who allegedly written love letters to the deceased which were with the widow of the deceased and were produced 'before the police, were exhibited during the trial, sent to the Handwriting Expert, his report is available on the record as Exh.PQ but the Handwriting Expert was not produced to prove the same.
9. It has not been brought on record by the prosecution as to what was the relationship between both the appellants. It is an unwitnessed occurrence. However, later on, the prosecution introduced one Amin (PW12). It is important to note that the deceased Tariq was his sister-in-law's son, he allegedly saw the appellants while removing the dead body of the deceased to the fields. His conduct is doubtful and unnatural. After having seen so, he neither informed the police nor went to the house of his said sister-in-law to apprise her qua the said occurrence. His statement was recorded after two days of the occurrence. Even he went to condole the father of the deceased on the next day but did not apprise the complainant about the incident. So, in such like circumstances, we are not inclined to rely upon his statement which is accordingly rejected.
10. Now we are left with the evidence of extra judicial confession furnished by Mushtaq (PW13). PW13 and the appellants are residents of different villages. According to PW13, both the appellants came and Rab Nawaz appellant made extra-judicial-confession that he had murdered the deceased by firing two shots, This fact is negated from the statement of Dr.Muhammad Ashraf (PW8) who found fifteen injuries on the person of the deceased. Injuries Nos.4, 5, 9, 10, 11 and 13 were with firearms while rest were of blunt weapons, so, there is, a glaring contradiction amongst the extra-judicial- confession and the postmortem report, so, on that score statement of PW13 is also rejected coupled with the fact that his conduct is most unnatural because he did not either apprise the father of the deceased nor the police qua the said confession.
11. Even there is evidence of last seen furnished by Khurshid. Ahmad (PW10), He claims to- have seen the deceased in the company of the appellants but his statement was recorded on 20.9.2000 PW15 Raja Abdur Razzaq Inspector/SHO appeared before the learned trial. Court who stated that actually it was recorded on 20.8.2000 but date was inadvertently written on the statement as 20.9.2000. He appeared before the learned trial Court on 8.12.2001. During this long period of more than one year he neither informed any body nor corrected the case diaries, so, in our considered view he made abortive attempt in order to fill up lacuna in the prosecution case.
12. So far as evidence of recovery is concerned, the same is rejected for the following reasons, firstly, two crime empties, according to the prosecution; were taken into possession on 19.8.2000, appellants were arrested on 1.9.2000, carbine was recovered from Rab Nawaz appellant on 6,9.2000 and the crime empties were sent to the Firearm Expert on the same day i.e. on 6.9.2000 and too after the arrest of the appellants, so, the said piece of evidence looses its evidential value and is accordingly disbelieved by us.
13. Now we are left with another piece of evidence i,e. report of the Handwriting Expert (Exh.PQ). We have noted that the Handwriting Expert was not produced by the prosecution to the prove the said report, The learned Additional Prosecutor General, while arguing the case, submitted that the accused could have submitted an application for summoning him but we may state here that it was incumbent upon the prosecution to have produced the Handwriting Expert so that the appellant may have the opportunity to cross-examine him as is mandated under Section 510, Cr,P.C. In our opinion, Exh.PQ is inadmissible in evidence, is of no avail to the prosecution and is accordingly discarded. The precedent case law relied upon by the learned Additional Prosecutor General is distinguishable in the peculiar facts and circumstances of the case and is of no avail to the prosecution.
14. The prosecution story seems to be unnatural, improbable and does not appear to common sense It is settled law of the land that when two views are possible then the view favouring the accused be given preferences coupled with the fact that benefit of doubt always goes to the accused. In this regard this Court is fortified with a judgment of the August Supreme Court of Pakistan reported in AYUB MASTH VS. THE STATE (PLD 2002 Supreme Court 1048) wherein, at page 1056, the Apex Court held 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 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 the 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 us. Mushtaq Ahmad (PLD 19973 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 (PBUH) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishment of an innocent"
(emphasis supplied)
15. After having sifted grain from the chaff and after having applied independent judicial mind, this Court is of the considered view that the prosecution has failed to prove its case against the appellants beyond any shadow of doubt to sustain conviction. The prosecution case is full of doubts and doubts and on the basis of such a shaky evidence, the conviction and sentence awarded to the appellants cannot be maintained because the same has not come through unimpeachable sources. is untrustworthy, unreliable and cannot stand the test of judicial scrutiny.
Resultantly, this appeal is allowed, the impugned judgment is set-aside, the appellants are acquired from the case and shall be released forthwith if not required to be detained in any other- case. Murder Reference is answered in the negative while death sentence awarded to the appellants is not confirmed For afore-referred reasons the connected revision petition is accordingly dismissed in terms thereof. For afore-referred reasons, the revision petition is dismissed.