' SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Shahzad Waseem son of Muhammad Tazeem, Caste Mughal, resident of Lehri, Tehsil Sohawa, District Jhelum, along with Nosherwan (tried separately being juvenile and sentenced to imprisonment for life along with fine) and Waqas Ali (since acquitted) was involved in case F.I.R. No,128, dated 23-6-2010, offence under sections 302, 34, P.P.C., registered with Police Station, Sohawa, District Jhelum, and was tried by learned Additional Sessions Judge, Jhelum, who vide judgment dated 31-3-2011, convicted Shahzad Waseem appellant as under:-- "Under section 302(b), P.P.C., to imprisonment for life with direction to pay fine Rs,100,000 and in case of recovery of the same, 50% was ordered to be given to the legal heirs of the deceased Tamoor Ali and in default whereof to further undergo six months' S.I. Benefit of section 382-B, Cr.P.C.
Was also extended in favour of the appellant".
2. Being aggrieved, Shahzad Waseem appellant assailed his conviction and sentence through Criminal Appeal No,25-J of 2011.
3. The prosecution story as alleged in the F.I.R. (Exh.PC) lodged on the complaint (Exh.PM) of Saqib Khalil complainant (P. W.10) is that he is resident of village Lehri and is employee of Pakistan Ordnance Factory Wah Cantt and had come to the house on leave. On 23-6-2010 in the evening, the complainant along with his mother Shaista Parveen was present in the house, whereas his younger brother Tamoor Ali along with other boys of the village went outside in the fields for playing cricket. After sometime, the complainant also went there to see cricket match. The boys were playing cricket. At about 6-30 p.m. During the cricket match, an altercation took place between Tamoor Ali and Nosherwan appellant, who was armed with bat. Accused Nosherwan raised a lalkara that he will teach lesson to the brother of the complainant for abusing him. In the meanwhile, brothers of Nosherwan namely Waqas (since acquitted) armed with bat and Shahzad (appellant) armed with brick reached there. Waqas gave a bat blow to Tamoor Ali hitting him on his head. Then Nosherwan accused caused a brick blow hitting brother of the complainant on his head and thereafter Shahzad accused caused a brick blow to the brother of the complainant, which too hit him on his head. The brother of the complainant fell down on the ground. All three of them gave bricks and bat blows to brother of the complainant in falling position. On hue and cry, his mother Shaista Parveen also attracted at the spot and witnessed the occurrence. The complainant and his mother rescued Tamoor Ali after beseeching the accused persons.
' The motive as alleged in the crime report is an altercation between Tamoor Ali and accused Nosherwan during the cricket match.
4. Initially the F.I.R was lodged on the complaint of Saqib Khalil (P.W.10) for offences under sections 324, 337 A(ii), 34, P.P.C., but on death of Tamoor Ali on 24-6-2010 of fence under section 302, P.P.C., was added.
5. On 23-6-2010 on receipt of information that Tamoor Ali was present in THQ Hospital Sohawa in an injured condition, Umar Hayat, S.-I./Investigating Officer reached the hospital, prepared the injury statement of injured Tamoor Ali and handed over it to Kafaiyat Ali 182/C for further proceedings. The Investigating Officer recorded statement (Exh.PM) of Saqib Khalil complainant (P.W.10) and sent the same to Police Station through Aftab Ahmad 580/C for registration of formal F.I.R. Thereafter the Investigating Officer proceeded to the place of occurrence, where Aftab Ahmad 580/C handed over him the complaint and copy of the F.I.R. The injured Tamoor All was referred to DHQ Hospital, Rawalpindi, for treatment. The Investigating Officer prepared the site plan without scale (Exh.PN) in presence of the P.Ws. And the complainant. He secured blood-stained earth from the place of occurrence and took the same into possession vide recovery memo Exh.PH after making the same into sealed parcel and recorded statements of the prosecution witnesses under section 161, Cr.P.C. Thereafter the Investigating Officer reached at Police Station Sohawa. On 24-6- 2010, the Investigating Officer received telephonic information that the injured had died in DHQ Hospital, Rawalpindi, upon which he recorded Rapt No,15 in the daily diary (Exh.P0) and reached THQ Hospital Sohawa, drafted application for postmortem examination (Exh.PP), prepared inquest report Exh.PE, prepared injury statement Exh.PF and handed over the same to Abid Hussain 411/C (P.W.4) for postmortem examination. After the postmortem examination of the deceased, Abid Hussain 411/C (P.W.4) handed over the relevant papers of postmortem examination along' with two chaddars (Exh.P2/1-2) and one shalwar Exh.P/1 (last worn clothes) to the Investigating Officer, which were taken into possession by him through recovery memo Exh.PD. The Investigating Officer handed over the dead body to Saqib Khalil complainant through receipt Exh.PQ. On 2-7-2010, accused were arrested. On 6-7-2010, the Investigating Officer summoned the patwari halqa for site inspection, who took rough notes on the direction of the Investigating Officer and pointation of the P.Ws. On 9-7-2010, Patwari Halqa handed over the scaled site plan in triplicate (Exh.PG and Exh.PG/1). The Investigating Officer handed over the case property to the Moharrar for safe custody and onward transmission to the relevant offices. On 8-7-2010, accused Nosherwan, Waqas and Shahzad disclosed that they could recover the crime weapons from their residential house, upon which the Investigating Officer along with all the three accused as well as prosecution witnesses proceeded to village Lehri. First of all Nosherwan accused himself brought out the brick (P-3) from eastern wall of the house, which the Investigating Officer took into possession vide recovery memo Exh.PJ, then Shahzad accused got recovered brick (Exh.P-4) from western wall of the haveli, which was also taken into possession by the Investigating Officer through recovery memo Exh.PK. Then Waqas accused got recovered bat (Exh.P-5), which the Investigating Officer took into possession vide recovery memo Exh.PL. The Investigating Officer handed over the case property to the Moharrar for safe custody and subsequently sent the accused to judicial lock-up under the orders of the learned Illaqa Magistrate.
6. During the course of investigation, the Investigating Officer found the appellant guilty and submitted report under section 173, Cr.P.C, to the court of competent jurisdiction, which was enrouted through learned Illaqa Magistrate as provided under section 190(2), Cr.P.C. The learned Additional Sessions Judge, Jhelum in terms of order dated 25-9-2010, framed charge against the appellant. The appellant pleaded not guilty and claimed trial, therefore, the prosecution was afforded opportunity to produce evidence to prove its, version and as such prosecution in order to substantiate its case produced as many as eleven witnesses.
7. Saqib Khalil (P.W.10) is the complainant as well as eye-witness of this case, whereas Shaista Parveen, (P.W.9) is the eye-witness, who corroborated the statement of complainant. Umar Hayat, S.I. (P.W.11) is the Investigating Officer of this case. Dr. Suresh Kumar (P.W.2) medically examined Tamoor Ali (deceased) in injured condition, whereas Dr. Ejaz Ahmad Butt, CMO, THQ Hospital, Sohawa, had conducted the postmortem examination upon the dead body of Tamoor Ali, deceased and found following injuries on his person:-- "1. Defused swelling with positive crepitus present on the right tempoperoparietal region of the skull.
With well stitched wound about 15 cm (L) shape on the right tempoperoparietal region of the skull.
No ligature or injury mark else where on the body".
' After conducting postmortem examination, the doctor arrived at the following opinion:-- "I was of the opinion that damage to the vital organs of the brain resulted by blunt weapon causing fracture of the skull bone, rupture of the menings and rupture of the brain tissue, fatal head injury resulted in the cardio pulmonary arrest and the injury was ante mortem in nature. The probable time that elapsed between injury and death was within 24 hours and between death and postmortem was 2 hours and 20 minutes."
' Statements of rest of the prosecution witnesses are formal in nature.
8. On 15-2-2011, the learned ADPP gave up Haji Ibrar and Amjad Faiz P.Ws. Being unnecessary. Vide separate statement recorded on 22-3-2011, the learned DDPP further gave up Haji Ibrar and Zafran Gul P.Ws. Being unnecessary on the oral request of the complainant. On 23-6-2011, learned DDPP closed the prosecution evidence after tendering in evidence the report of Serologist (Exh.PS) and attested copy of report of Chemical Examiner (Mark-A).
9. The appellant was examined under section 342, Cr.P.C; wherein he opted neither to appear under section 340(2) Cr.P.C, as witnesses of his own to disprove the allegations levelled against him nor opted to produce defence evidence. In response to the question why the case is against him and why the P.Ws. Deposed against him, the appellant made the following deposition:-- "I am totally innocent and has falsely been implicated in this case, belongs to very poor family and even I have no concern whatsoever with the alleged crime. In fact, an altercation took place between Ehtasham aged about 10 years (younger brother of accused) and the deceased on playing cricket.
' The deceased pushed him who fell and threw stone which hit upon the temporal of the deceased and thereafter, he was given medical treatment by the doctors and even he was in fully senses. My as well as the implication of my other co-accused is result of grudge, grouses, malice, mala fide intention and ulterior motives in order to put undue influence and pressure upon me as well as my other co-accused and family members besides the fact that neither I as well as other co-accused were present at the place of occurrence nor have any concern whatsoever with the said alleged occurrence. As far as the deposition of P.Ws. Against me and my co-accused is concerned, they due to the close relationship with the deceased deposed against me as well as my co-accused in this case".
10. After hearing the arguments advanced by the learned counsel appearing on behalf of both the parties, the learned trial Court, while evaluating the evidence available on record, found the version of the prosecution correct beyond any shadow of doubt, resulting into conviction of the appellant in the above terms.
11. While addressing the court, learned counsel appearing on behalf of the appellant argued that there is delay of three hours in lodging the crime report at the part of the prosecution for which no plausible explanation has been rendered by the prosecution. It was argued by the learned counsel that as per prosecution version, Tamoor Ali (deceased) sustained three injuries on his head, i.e, one caused by Waqas Ali with his bat and Shahzad Waseem (appellant) and Nosherwan, co-accused with bricks, but the same is not corroborated by medical evidence as there is only one injury on the head of the deceased as per his postmortem examihation. Next argument of the learned counsel was that the initial injury was ascribed to Waqas, co-accused, with his bat, who has already been acquitted by the learned trial Court while extending him benefit of doubt. While referring the shape of injury, learned counsel submitted that the same.Reflects that the same was result of bat blow and cannot be caused by brick by any stretch of imagination. It was contended that the statements of prosecution witnesses namely Irfan ul Haq (P.W.7), Saqib Khalil (P.W.10), Shaista Parveen (P.W.9) as well as Umar Hayat, S.I./Investigating Officer (P.W.11) are contradictory to each other on material aspects of the case. It was next contended on behalf of the appellant that the acquittal of said Waqas has not been assailed/challenged by the complainant by way of filing any appeal. Learned counsel lastly argued that in such circumstances, especially when the occular account does not find any corroboration from medical Evidence coupled with material contradictions in the statements of the prosecution witnesses, the learned trial Court erred in law while convicting the appellant and in view of prosecution evidence, which admittedly is full of lacunas, the appellant deserves his clean acquittal.
12. Contrarily, learned Law Officer vehemently opposed the contentions raised by learned counsel for the appellant. It was argued that the appellant is nominated in the F.I.R. With specific allegation/role that he caused brick blow to the deceased on his head. It was next argued that recovery of the brick from the appellant sufficiently connects him with the commission of the offence. Learned Law Officer while referring cross-examination conducted by learned defence counsel at trial stage on Saqib Khalil (P. W.10), whereby he made following deposition:-- "It is correct that Shahzad had given a brick blow behind me. Nosherwan (juvenile) also gave a brick blow behind my back. When the blow of brick was given I was trying to snatch the bat from one of the accused. From where Shahzad inflicted blow the distance was 5/6 paces. The Distance between Nosherwan and the deceased Tamoor Ali was the same. It is correct that Shahzad gave brick blow lastly and he fell down." ' argued that the defence/appellant had admitted/confessed his guilt. Learned Law Officer went on arguing that the prosecution by way of producing cogent and reliable evidence has successfully proved its case against the appellant. It was contended that the learned trial Court after touching each and every aspect of the case and while evaluating the material/evidence available on the record in its true perspective has rightly convicted/sentenced the appellant. In such peculiar circumstances of the instant case, learned Deputy Prosecutor-General argued that the appellant does do not deserve any leniency and his appeal is liable to dismissal.
13. Arguments advanced pro and contra have been heard. I have also gone through the record available on file with the able assistance of learned counsel for the appellant, as well as, learned Law Officer.
14. Admittedly the occurrence in the instant case had taken place on 23-6-2010 at 6-30 p.m.
Whereas the matter was reported to the police on the same day at 9-30. p.m. While inter se distance between the place of occurrence and the police station is 16- KMs, however, no plausible explanation has been rendered by the prosecution for delay in reporting the matter to the police.
Moreover, bare perusal of the record available on file makes it crystal clear that the occurrence had taken place at the spur of moment when the deceased and the appellant alongwith co- convict Nosherwan and Waqas Ali (since acquitted) were playing cricket jointly, hence by any stretch of imagination the instant occurrence cannot be termed as premeditated. Furthermore, it is itself the prosecution case that no conventional weapon was used during the occurrence.
According to prosecution version three injuries were inflicted to the deceased; one by a cricket bat assigned to Waqas Ahmed (since acquitted), whereas, two injuries were caused by brick-batting allegedly by the appellant and his co-convict tried separately under Juvenile Justice System Ordinance, 2000. However, while appearing in the witness box Dr. Ejaz Ahmed Butt, Medical Officer (P.W.1), who had conducted post mortem examination upon the dead body of Taimoor Ali deceased observed following injury:- "1. Defused swelling with positive crepitus present on the right tempoperoparietal region of the skull.
With well-stitched wound about 15 cm (L) shape on the right tempoperoparietal region of the skull.
No ligature or injury mark else where on the body".
' Further dimension of injury, which was observed by P.W.1 is extended in 'L' shape, which prima facie seems to have been caused with a weapon of longitude magnitude as description of injury clearly reflects that the same is in regular shape, therefore, possibility cannot be ruled out that the injury could be the result of cricket-bat blow.
15. At the cost of repetition I may mention here that as per prosecution version it was Waqas Ali co- accused (since acquitted), who had inflicted a bat blow upon the head of the deceased, however, he was extended the benefit of doubt by the learned trial Court, which ultimately resulted into his acquittal of the charge. Astonishingly the prosecution opted not to challenge his acquittal before this Court, which has attained finality notwithstanding the fact that as per contents of the crime report it was Waqas Ali, accused, who had initiated the occurrence.
16. Now the question before this Court is that the injury sustained by the deceased was ascribed to three persons, how it could be determined that it was the appellant and his co-convict, having been tried separately under Juvenile Justice System Ordinance, 2000, that who inflicted injury especially when bare perusal of the evidence available on the record clearly reflects that all the.
Prosecution witnesses of occular account were unanimous on this point that Waqas Ali co- accused (since acquitted) had initiated the occurrence; thereby inflicting bat blow and the appellant along with his co-convict Nosherwan (tried separately) had given brick blows on the head of the deceased subsequently. However, if the whole prosecution case is scrutinized with naked eye, it is crystal clear that there is only one injury available on the person of the deceased.
What happened there and who caused the injury remained shrouded in mystery and the same could not be specified while lodging the crime report, during the course of investigation as well as trial, whereas three persons were saddled with the liability of the sole injury. While considering a similar question, in its landmark judgment in the case of Fazal Din and others v. Rehmat and others (1968 SCM R 18), their Lordships in the august Supreme Court of Pakistan held as under:-- "...Absence of motive for killing deceased---Lethal weapon (hatchet) available to accused but not used--- Other circumstances more consistent with sudden quarrel---Deceased dying of grievous injuries received in head---No clear evidence as to which of accused persons responsible for fatal injuries---Benefit of doubt go to all accused..." (Underlining by me)
' Similar view was affirmed by august Supreme Court of Pakistan in the case of Darey Khan and another v. The State (1972 SCM R 578), while holding that:- "Murder case --- Benefit of doubt --- Prosecution story that each one of two accused fired one shot each and both hit deceased contradicted by medical examination revealing only one hit, of two wounds one being of entrance and other of exit --Broken pieces of only one bullet recovered from spot ---Seat of injury indicating fire by a person in squatting position taking shelter behind hay-stacks and concealing his identity---Occular evidence interested and inimical---Dying declaration of deceased, in circumstances, held, could not be relied upon --- Accused given benefit of doubt and acquitted." (Underlining by me)
' While dealing a similar situation, in the case of Paryal and another v. The State (1978 PCr.LJ 380), the Hon'ble Sindh High Court laid down following principles:-- "S. 302/34---Benefit of doubt---Only one of two accused possibly inflicting injuries upon deceased but which of two accused responsible for injuries shrouded in mystery---No evidence on record to show both accused having common intention to kill deceased---Both accused, held, entitled to benefit of doubt and acquitted, in circumstances."
16. The other aspect of the case is that the learned trial Court while convicting the appellant and co-convict (tried separately) on the basis of wrong suggestion given by the learned counsel on behalf of the accused/appellant, had considered it as admission. If this aspect of the case is evaluated on the touchstone of the guidelines enunciated by the superior courts of the country from time-to-time, it is abundant clear that whenever the prosecution fails to substantiate its case beyond shadow of reasonable doubt through leading cogent, transparent and confidence inspiring evidence, the superior courts always come for the rescue of the innocent persons. From the facts and circumstances of the instant case, which even otherwise is pregnant with so many lacunas qua the, number of injuries, the manner of injuries nd sequence of injuries with certainty, this ( ourt is of the considered view that the prosecution in the aforesaid circumstances has miserably failed to establish its case against Shehzad Waseem appellant especially when the motive in this case was not preplanned rather the occurrence had taken place at the spur of moment while playing cricket.
' Even otherwise, the questions having not been shown to be put on clear instructions of client, no inference can be drawn against the accused from mere line of cross-examination and the prosecution cannot claim any benefit in such a situation. Reliance in this regard is placed on the case of Abdul Khaliq v. The State (1996 SCM R 1553), wherein the august Supreme Court of Pakistan has held as under:- "----S. 302/34----Evidence----Admissions by counsel---Effect--Accused in a criminal case is not bound by the admission made by his counsel".
' While dealing with similar situation, in the case of "Ghulam Shabbir v. The State" PLD 1987 Lah. 515, was held as under:-- "----Cross-examination---Trend of suggestion----Effect of----Suggestion---Held: Questions having not been shown to be put on clear instructions of client, no inference to be drawn against accused from mere line of crossexamination----Counsel also not to be presumed to have put question in case on instructions of appellant".
' In the case of "Gulfraz Khan Abbasi v. Wajid Kiani and 3 others" 2010 PCr.LJ 1952, following dictum of law has been laid down:-- "----Ss. 302/201/34---Qatl-e-amd, causing disappearance of evidence of offence---- Appreciation of evidence----Suggestions made in evidence----Prosecution has to prove its own case and it cannot take benefit of denied suggestions".
17. Upshot of above discussion is that the ocular account in the instant case is at variance to each other, which even otherwise is not supported by medical evidence, the prosecution case is lacking sufficient incriminating evidence and the discrepancies in the statements of the prosecution witnesses make the case against the appellant highly doubtful. As per dictates of law benefit of every doubt is to be extended in favour of the accused. Moreover, it is golden principle of law that the Court may err in letting off 100 guilty but should not convict one innocent person on the basis of suspicion. Resultantly, the salutary principle of benefit of doubt is extended in favour of the appellant as a consequence whereof; Criminal Appeal No,25-J of 2011 filed by Shahzad Waseem appellant is ACCEPTED IN TOTO. Conviction and sentence recorded in the judgment of the learned trial Court passed on 31-3-2011 is set at naught as a consequence whereof the appellant is acquitted of the charge in case F.I.R. No,128, dated 23-6-2010, offence untler sections 302, 34, P.P.C., registered with Police Station, Sohawa, District Jhelum and he is directed to be released forthwith if not required in any other case.