' MANZOOR AHMAD MALIK, J.---This judgment shall dispose of Criminal Appeal No, 59-.1 of 2008 titled as "Tanveer Ahmed v. The State", Criminal Appeal No,182 of 2008 titled as "Muhammad Jamil v. The State " and Murder Reference No,40 of 2008 titled as "State v. Tanveer Ahmed and another" 'as all these matters have arisen out of the same case i,e, F.I.R. No,395/2004 dated 12-8-2004 offence under section 302, P.P.C. Registered at Police Station Sambrial, District Sialkot. Later on section 392, P.P.C. Was added vide case Diary No,1(a).
2. Tanveer Ahmed and Muhammad Jamil (appellants) have filed Criminal Appeal No,59-J of 2008 and Criminal Appeal No,182 of 2008, respectively, against their conviction and sentences whereby they were convicted by the learned Additional Sessions Judge, Daska under sections 302(b) and 392 P.P.C. Vide judgment dated 31-1-2008 and sentenced as under:-- "...They are, therefore, convicted under section 302(b), P.P.C. For committing the murder of Muhammad Arif deceased and sentenced with death penalty subject to its confirmation by the honourable Lahore High Court, Lahore. They are also convicted under section 392, P.P.C. And sentenced to ten years' rigorous imprisonment along with fine of Rs,50,000 each. In case of default in payment of fine, both the accused persons shall further undergo simple imprisonment of one year. They are also fined Rs . 400 , 000 each under section 544-A, Cr.P.C. As compensation to be paid to the family of the deceased Muhammad Arif and in case of default in payment of said amount they would suffer imprisonment for six months. Both the sentences shall run concurrently.
The accused persons are also given the benefit under section 382-B of Cr.P.C. ..."
' The learned trial Court has sent Murder Reference No,40 of 2008 for confirmation or otherwise of the sentence of death awarded to Tanveer Ahmed and Muhammad Jamil (convicts).
3. Facts of the case, as mentioned in the F.I.R. (Exh.PD/1) lodged on the basis of statement (Exh.PD) made by Muhammad Tariq complainant (P.W.2) are that he (complainant) was resident of Allaywali, Muhammad Pura and had a commission shop (arhat) in vegetables market. His brother Muhammad Arif (deceased) son of Earn Din, caste Arian resident of Muhallah Muhammad Pura Allaywali had also a commission shop. As per routine, said Muhammad Arif left his home for market at 5 a.m. By motorcycle Honda 125 bearing No,458/STL, Model 2000, color blue. The complainant, his brother Mian Muhammad Yousaf and Liaqat Ali (P. W.3) were waiting for Muhammad Arif .In vegetable market and they were worried as Muhammad Arif had not reached the market. All the three of them while riding on a motorcycle went towards bridge Upper Chanab Canal. At about 6-30 a.m on 12-8-2004 they came to know that dead body of Muhammad Arif was lying at Ronda Road Sialkot Star Marriage Container Feeds Factory. The complainant and his brother reached there. Muhammad Arif had succumbed to the firearm injuries.
' It was further alleged in the that Muhammad Arif had been murdered by firing at the hands of some unknown persons who had also taken away his motorcycle Honda 125.
4. Munwar Hussain (P.W.9) was posted at Police Station Sambrial. On 12-8-2004 after receiving the information of the murder of Muhammad. Arif (deceased) he reached at canal bridge of Upper Chanab where Muhammad Tariq complainant met him. He recorded statement of Muhammad Tariq (Exh.PD) and sent the same for registration of the case. He prepared application for postmortem examination (Exh, PK), injury statement (Exh.PL) and inquest report (Exh.PM) and handed over the same to Muhammad Abbas and Liaqat Ali/Constable to escort the dead body of the deceased to Civil Hospital, Daska. He inspected the place of occurrence and prepared unsealed site plan (Exh.PN). He also took into possession the blood-stained earth through sealed parcel (Exh.PA). At the same time he also took into possession two empties of .30 bore pistol (P.1/1- 2) through recovery memo (Exh.PB). After postmortem examination of the deceased, the constable handed over to him last worn clothes of the deceased i,e, qameez (P.2), shalwar (P.3) and vest (P.4), which he took into possession through recovery memo (Exh.PC). On 14-8-2004, the Draftsman (P. W.10) took rough notes of the place of occurrence and prepared scaled site plan (Exh.PO and Exh.PO/1). He searched the accused persons but they could not be traced out and he was transferred. Thereafter, the investigation of this case was entrusted to Muhammad Siddique S.-I.
(P.W.11). On 22-11-2004, he recorded the supplementary statement of Muhammad Tariq, complainant. He searched the accused persons, namely, Tanvir and Jamil from their respective houses but he could not trace them till 6-12-2004. On 6-12-2004, after receiving information, he arrested Tanvir Ahmad and Muhammad Jamil (appellants) from the house of Tanvir Ahmad (appellant). On 7-12-2004, he obtained physical remand of said both the appellants from the concerned court and interrogated them. On 19-12-2004, Tanvir Ahmad (appellant) made disclosure that he could get recovered the looted amount of Rs,500, whereas, with regard to the remaining looted amount, he disclosed that he had already spent the same. On his disclosure, Tanvir Ahmad (appellant) got recovered Rs,500 of the denomination of rupees 500 (P.5) which was taken into possession through (Exh.PE). On the same day, Muhammad Jamil (appellant) also made disclosure that he could get recovered ah amount of Rs,500 looted from Arif (deceased). The said appellant also disclosed that remaining amount had already been spent by him. At the same time, on his disclosure, the looted amount of Rs,500 of the denomination of Rupee 500 (P.6) was taken into possession vide recovery memo (Exh.PF). On 20-12-2004, Tanvir Ahmad (appellant) made a disclosure that he could get recovered pistol .30 bore from railway track near the bridge of Upper Chanab. Similarly Muhammad Jamil (appellant) also made a disclosure that he could also get recovered pistol .30 bore, underneath the bushes near Upper Chanab. He along with both the appellants reached at Upper Chanab. Tanvir Ahmed (appellant) got recovered pistol (P.7) along with three live bullets (P.8/1-3) near the railway track of bridge Upper Chanab. He took into possession the pistol (P.7) along with three live bullets through recovery memo (Exh.PG). Thereafter Muhammad Jamil (appellant) got recovered pistol .30 bore (P.9) along with two live bullets (P.10/1- 2) near the bushes of Upper Chanab which were taken into possession through recovery memo (Exh.PH). He completed the investigation and handed over the file to Fayyaz Hussain S.-I./ S.H.O.
(P.W.13) who prepared the challan and submitted the case to the court of competent jurisdiction.
5. The appellants were summoned to face the trial. Copies of the documents as required under section 265-C, Code of Criminal Procedure, were provided to them and formal charge under sections 302 and 392 read with section 34, P.P.C. Was framed against them on 13-6-2005 to which they pleaded not guilty and claimed trial. In order to prove its case, prosecution examined thirteen witnesses, in all. Ocular account was furnished by Muhammad Ayub (P.W.5) and Muhammad Ashraf (P.W.6). Muhammad Tariq complainant (P.W.2) and Liaquat Ali (P.W.3) entered in the witness box in support of the prosecution version as set out in the F.I.R. Muhammad Tariq (P.W.2) also witnessed the recovery of cash and pistols at the instance of both the appellants. Medical evidence was furnished by Dr Mukhtar Ahmad (P.W.7). Rest of the witnesses are formal in nature. .Learned Special Public Prosecutor gave up Muhammad Yousaf, Ilam Din, Muhammad Afzal and Shahbaz (P.Ws.) being unnecessary vide statement dated 22-11- 2005. After tendering in evidence report of Chemical Examiner (Exh.PR), report of Serologist (Exh.PR/1) and that of Forensic Science Laboratory (Exh.PS) he closed the prosecution case vide statement dated 15-9-2007. Statements of the appellants were recorded under section 342, Code of Criminal Procedure, on 17-10-2007. To a question as to why the case against him and why the prosecution witnesses had deposed against him. Tanveer Ahmed (appellant) replied as under:- "I along with Muhammad Jamil was living in the Muhallah of the complainant. He suspected us that we both were drug addicted and he warned us to leave the Muhallah, otherwise threatened us to face dire consequences. Ultimately, we denied to leave the Muhallah. Due to that grudge, the complainant involved us in this false case which was untraceable. All the P.Ws. Are inimical to us as they are the relatives of the complainant."
' Same was the standpoint of Muhammad Jamil (appellant). The appellants did not appear as their own witnesses as provided under section 340(2), Code of Criminal Procedure, nor did they produce any evidence in their defence.
6. After conclusion of the trial, the learned trial Court convicted the appellants as detailed above.
Hence these appeals and murder reference.
7. Learned counsel for the appellants, in support of these appeals, contend that admittedly none of the assailants is named in the F.I.R. And evn no description of the appellants is mentioned therein; that while appearing before the learned trial Court the complainant changed his version and introduced a different story; that as per F.I.R. Muhammad Arif (deceased) left his house at 5-00 a.m whereas before the learned trial Court the complainant stated that at 4-30 a.m Muhammad Arif (deceased) went to Sabzi Mandi Sambrial and thereafter after doing his routine work he left Sabzi Mandi at 5-45 a.m; that in the F.I.R. There is no mention that the deceased was carrying any currency whereas while appearing before the learned trial Court the complainant stated that the deceased was having an amount of Rs,60,000 for payment to the Bupari; that admittedly the complainant (P.W.2) and Liaquat Ali (P.W.3) are not eye-witnesses and the prosecution introduced Muhammad Ayub (P.W.5) and Muhammad Ashraf (P.W.6) with the assertion that they had witnessed the occurrence of murder but their statements cannot be relied upon simply for the reason- that they did not inform the Police, complainant or anybody else about the occurrence and moreover both of them admitted during the course of cross-examination that after the incident they left the dead body and went to their house and even did not participate in the funeral ceremony of the deceased; that it is the case of the complainant that both these witnesses appeared before Munawar Hussain, S.I. (P.W.9) on 13-8-2004 who recorded their statements; that said Munawar Hussain, S.I while appearing before the learned trial Court as P.W.9 did not state anything regarding the statements of Muhammad Ayub, (P.W.5) and Muhammad Ashraf, (P.W.6) and he was not even declared hostile; that the complainant stated before the learned trial Court that statements of Muhammad Ayub and Muhammad Ashraf recorded on 13-8-2004 have been removed from the record by Munawar Hussain S.I (P.W.9); that the complainant was specifically asked during the course of cross-examination as to whether he had moved any application against Munawar Hussain S.-I. And his reply was in the negative; that Muhammad Siddique S.-I. Appeared as P.W.11 and stated that he had recorded the supplementary statement of Muhammad Tariq (complainant) and statements of Muhammad Ayub and Muhammad Ashraf P.Ws. On 22-11-2004 i,e, three months and eight days of the occurrence and has not said anything regarding the statements of Muhammad Ayub and Muhammad Ashraf P.Ws. Recorded on 13-8-2004, therefore, no reliance, can be placed on their statements; that as per F.I.R. The culprits also took away motorcycle of the deceased but no motorcycle was recovered from the appellants; that the recovery of currency notes at the instance of the appellants is inconsequential as there is no mention in the F.I.R. As to whether the deceased was carrying any currency at the time of occurrence and the same was missing and moreover the currency note allegedly taken into possession at the instance of Tanveer Ahmad (appellant) as per recovery memo (Exh.PE) was produced by the mother of the said appellant whereas the currency note allegedly taken into possession at the instance of Muhammad Jamil (appellant) as per recovery memo (Exh.PF) was produced by the brother of the said appellant; that recoveries of pistol (P.7) at the instance of Tanveer Ahmad (appellant) and taken into possession vide recovery memo (Exh.PG) and that of pistol (P.9) at the instance of Muhammad Jamil (appellant) and taken into possession vide recovery memo (Exh.PH) are also inconsequential as two empties of pistol .30 bore (P.1/1-2) though collected from the spot vide recovery memo (Exh.PB) but the same were not sent to the Forensic Science Laboratory and report of Forensic Science Laboratory (Exh.PS) is simply to the effect that the pistols were in working order; that the medical evidence at the most can be considered as supporting evidence and it is relevant only if the primary evidence i,e, ocular account inspires confidence; that in the circumstances the prosecution case is doubtful in nature and the appellants are entitled to the benefit of doubt as a matter of right and not as grace.
8. On the other hand, learned Deputy Prosecutor-General assisted by learned counsel for the complainant, opposes these appeals on the grounds that the complainant and the eye-witnesses have absolutely no enmity with either of the appellants because had there been any malice the appellants could have easily been nominated in the F.I.R.; that the prosecution has fully proved that it was the appellants and their absconding co-accused namely Tariq who committed the murder of Muhammad Arif (deceased); that presence of both the witnesses of the ocular account i,e, Muhammad Ayub (P.W,5) and Muhammad Ashraf (P.W.6) cannot be discarded merely because of the delay in recording their statements as the complainant categorically stated before the learned trial Court that he along with both the witnesses of the ocular account went to Munawar Hussain (P.W.9) on 13-8-2004 who recorded their statements but their statements were removed from the record; that the ocular account is fully supported by the medical evidence; that the prosecution case is further corroborated by the recovery of pistols and cash at the instance of the appellants; that the prosecution has fully proved its case against the appellants and there is no merit in both these appeals.
9. We have heard learned counsel for both the appellants, learned Deputy Prosecutor-General assisted by learned counsel for the complainant and perused the record with their able assistance.
10. In this case, the occurrence, as per F.I.R. (Exh.PD/1), took place at 6-30 a.m. On 12-8-2004 and matter was reported to the Police on the same morning at 8-00 a.m. By Muhammad Tariq complainant brother of the deceased. The complainant while appearing before the learned trial Court as P.W.2 changed his version. We have noted following discrepancies between A the F.I.R. And the statement of the complainant before the learned trial Court:--
(a) As per F.I.R. Muhammad Arif (deceased) left his house for vegetable market at 5-00 a.m whereas as per statement of Muhammad Tariq before the learned trial Court, the deceased left his home at 4-30 a.m, reached vegetable market and after doing routine work left vegetable market at 05.45 a.m.
(b) The complainant never mentioned in the F.I.R. That the deceased had an amount of Rs,60,000 (rupees sixty thousand only) with him, however, while appearing before the learned trial Court, he stated that the deceased was having an amount of Rs,60,000 given by his father Ilam Din for onward payment to the "Bupari".
11. So far as the witnesses of ocular account i,e, Muhammad Ayub (P.W.5) and Muhammad Ashraf (P.W.6) are concerned, while appearing before the learned trial Court both of them stated that in their view the appellants and their co-accused namely Tariq (since P.0) committed murder of Muhammad Arif. Their conduct is highly improbable as they did not inform the Police, complainant or anybody else about the incident on the day of occurrence nor did they participate in the funeral ceremony of Muhammad Arif (deceased). Moreover, according to the complainant both these witnesses appeared before Munawar Hussain S.-I. (P.W.9) on 13-8-2004 and their statements under section 161, Code of Criminal Procedure were recorded on the same day. Munawar Hussain S.-I.
While appearing before the learned trial Court did not say anything qua the recording of statements of Muhammad Ayub and Muhammad Ashraf P. Ws. Or the supplementary statement of the complainant. Rather in his cross-examination he stated that Muhammad Ashraf and Muhammad Ayub did not appear before him on 13-8-2004 for joining investigation. He was not declared hostile by the prosecution. The other Investigating Officer i,e, Muhammad Siddique S.-I.
(P.W.11), however, stated that he recorded statements of Muhammad Ayub and Muhammad Ashraf and supplementary statement of the complainant on 22-11-2004 i,e, after three months and ten days of the occurrence. It is the case of the complainant (P.W.2) that statements of both the witnesses of the ocular account were removed from the record by Munawar Hussain S.I. The complainant was specifically asked as to whether he had moved any application against Munawar Hussain S.-I. (P.W.9) to the high-ups in Police hierarchy and he replied in the negative.
Therefore, in the circumstances it is not safe to rely on the statements of Muhammad Ayub (P.W.5) and Muhammad Ashraf S.-I. (P.W.6).
12. Medical evidence is only a supporting piece of evidence because it may confirm the ocular evidence with regard to the receipt of the injury, locale of injury, kind of weapon used for causing the injury, duration between the injury and the death but it would not tell the name of the assailants. Reliance is placed on "Ata Muhammad and another v. The State" (1995 SCM R 599).
13. Recoveries of pistol .30 bore (P.7) at the instance of Tanveer Ahmad appellant and taken into possession vide recovery memo (Exh.PG) as well as that of pistol .30 bore (P.9) at the instance of Muhammad Jameel appellant and taken into possession vide recovery memo (Exh.PH) are inconsequential as though two empties of pistol .30 bore (P.1/1-2) were into possession from the place of occurrence vide recovery memo (Exh.PB) but the same were not sent to the Forensic Science Laboratory and report of Forensic Science Laboratory (Exh.PS) is simply to the effect that the pistols were in working order.
14. Now we take up recovery of currency note of denomination of Rs,500 (P-5) from Tanveer Ahmad (appellant) and taken into possession vide recovery memo (Exh.PE) and that of Rs,500 (P-6) from Muhammad Jameel (appellant) and taken into possession vide recovery memo (Exh.PF). It is mentioned in recovery memo (Exh.PE) that the said currency note was produced by the mother of Tanveer Ahmad (appellant) and likewise the currency note taken into possession vide recovery memo Exh.PE was produced by the brother of Muhammad Jameel (appellant). We have noted that there is no mention in the F.I.R. That Muhammad Arif deceased was carrying any currency with him when he left the house. Moreover, both the witnesses of the ocular account in the examinations-in- chief stated before the learned trial Court that Tariq (co-accused of the appellant since P.0) took out the currency from the pocket of shalwar of Muhammad Arif (deceased). In view of the above the recovery of cash is not helpful for the prosecution.
15. There is another aspect of the case. It is the case of the prosecution that at the time of his murder Muhammad Arif (deceased) was riding on motorcycle 125 Honda and the said motorcycle was also missing but the said. Motorcycle was not recovered at the instance of the appellants rather there is no clue of the said motorcycle.
16. Sequel of the above discussion is that the prosecution case is doubtful in 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."
17. For the foregoing reasons, both these appeals are allowed. The conviction and sentence of the appellants awarded by the learned trial Court is set aside and the appellants are acquitted of the charges levelled against them while extending them benefit of doubt. They are in jail and, be released forthwith if not required to be detained in any other case.
18. Before parting with this judgment, it is clarified that the observations made in this judgment shall not affect the case of Tariq (co-accused of the appellant since proclaimed offender), whose case shall be decided on its own merits.
19. Murder Reference No,40 of 2008 is answered in the NEGATIVE and the sentence of death awarded to Tanveer Ahmad and Muhammad Jameel (convicts) is NOT CONFIRMED.