' MALIK SHAHZAD AHMA KHAN, J.---This judgment shall dispose Criminal Appeal No.1358 of 20C preferred by Kamran alias Bao (appellal along with Atif Farid and Muhamm Mukarram (appellants since acquitted this Court on the basis of compromise vi order dated 25-9-2012) and Murc Reference No.12 of 2009, sent by t learned trial Court for confirmation otherwise of the sentence of death award to Kamran alias Bao (appellant), as be these matters have arisen out of the said judgment dated 26-11-2008, passed by 1 learned Addl. Sessions Judge, Faisalabad case F.I.R. No.132 dated 14-8-20( offence under section 302, P.P. Action 34, P.P.C. Added in charge sections 148 and 149, P.P.C. Were mentioned in F.I.R. But no charge was imed under the said offences), registered Police Station Sahianwala, District lisalabad, whereby, Atif Farid, Kamran ias Bao and Muhammad Mukarram were nvicted under section 302(b)134 P.P.C. Committing the murder of Nadeem amad deceased and sentenced to death as air with the direction to pay Rs.50,000 upees fifty thousand) each as Impensation to the legal heirs of deceased adeem Ahmad as required under ction 544-A of the Code of Criminal .Ocedure, and, in default thereof, to tdergo simple imprisonment for six onths each.
2. Brief facts of the case as disclosed r Abdur Rauf, complainant (P.W.9), in s statement (Exh.PB), on the basis of hich, the formal F.I.R. (Exh-PB/1) was gistered, are that on 14-8-2007 at about 00 p.m., he (complainant) along with adeem Ahmad (deceased), Muhammad )ota (given up P.W.) and Muhammad imal (P.W.10) was going to Faisalabad from his house and when they reached near bridge of the Canal Bangla Salarwala, uhammad Shoaib (since P.0) armed with 44 bore rifle, Muhammad Mukarram cocused (since acquitted) armed with .30 ire pistol, Atif Farid co-accused (since quitted) armed with .30 bore pistol and imran alias Bao (appellant) armed with 0 bore pistol along with two unknown cused persons, with muffled faces, armed th firearms came behind them on a 2-D r who made Nadeem Ahmad (deceased) sit in, the car and fled away. Meanwhile, unknown person came from the village 'e on e motorcycle. They (complainant rty) implored him, took his motorcycle and followed the car and when the:, reached in Square No.33 in the area of Chak No.145/R.B on the said motorcycle, the accused persons brought down Nadeem Ahmad (deceased) from the car. When they (complainant party) reached near them, Muhammad Shoaib (since P.O.) made a straight fire shot with .244 bore rifle and raised lalkara that if anyone would come closer, he will meet a bad fate. Muhammad Mukarram co-accused (since acquitted), thereafter, made the first fire shot with .30 bore pistol at Nadeem Ahmad (deceased) which landed on his right cheek. Second fire shot was made by Atif Farid co-accused (since acquitted) with his pistol at Nadeem Ahmad (deceased) which landed on the left side of his neck. Muhammad Shoaib (since P.O.) made straight fire shots at Nadeem Ahmad (deceased) which landed on the different parts of his body. Nadeem Ahmad (deceased) fell down on the ground because of said injuries, whereupon, Kamran (appellant) made a straight fire with pistol which landed on the front side of abdomen of Nadeem Ahmad (deceased). Thereafter, unknown accused persons, with muffled faces, made fire shots with their weapons at Nadeem Ahmad (deceased) which landed on his buttocks. At the end, Atif Farid and Muhammad Mukarram co-accused (since acquitted) made straight fires at Nadeem Ahmad (deceased), in fallen position, which landed on his head and penis. The accused persons fled away from the spot on the car towards Sahianwala. They (complainant party) took care of Nadeem Ahmad (deceased) but he succumbed to the injuries.
The motive behind the occurrence, as alleged by the complainant in F.I.R. (Exh-PB/1), was that two days prior to the occurrence Atif Farid and Muhammad Mukarram co-accused (since acquitted) had a quarrel with Nadeem Ahmad (deceased) on some money transaction and due to this grudge, the accused persons committed the murder of Nadeem Ahmad (deceased).
3. Kamran alias Bao (appellant) was arrested in this case on 18-9-2007 by Muhammad Ishaq, S.I.
(P.W. 11). On 30-9-2007, Kamran alias Bao (appellant), while in police custody, after making disclosure, got recovered pistol (P-6) along with four live bullets (P-7/1-4), which were taken into possession vide recovery memo Exh-PN. After completion of investigation, the challan was prepared and submitted before the learned trial Court. The learned trial Court, after observing legal formalities, as provided under the Code of Criminal Procedure, 1898 framed charge against the appellant and his co-accused on 14-6-2008 to which they pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution produced eleven witnesses, during the trial. Abdur Rauf, complainant (P.W.9) and Muhammad Ajmal (P.W.10) furnished the ocular account of the prosecution. Muhammad Ajmal (P.W.10) is also the witness of recovery of .30 bore pistol (P-4) along with five live bullets (P-5/1-5), .30 bore pistol (P-6) along with four live bullets (P-7/1-4) and .30 bore pistol (P-8) along with three live bullets (P-9/1-3) allegedly recovered at the instance of Atif Farid co-accused (since acquitted), Kamran alias Bao (appellant) and Muhammad Mukarram co-accused (since acquitted), respectively.
' The medical evidence was furnished by Dr. Muhammad Javaid Asghar (P.W.8) who conducted the postmortem examination on the dead body of Nadeem Ahmad (deceased).
' Muhammad Ishaq, S.I. (P.W.11) is the Investigating Officer of this case. Khalid Mehmood 458/HC (P.W.1), Azhar Iqbal, Patwari (P.W.2), Jameel Arshad 2174/HC (P.W.3), Naseer Ahmad, A.S.I. (P.W.4), Haji Ihsan Illahi (P.W.5), Rafaqat Ali 4457/C (P.W.6) and Hidayat Ali 3698/C (P.W.7) are the formal witnesses. The prosecution also produced documentary evidence in the shape of scaled site plan, in duplicate, of the place of occurrence (ExhPA & Exh-PA/1), 'Fard Biyan' of the complainant (Exh- PB), F.I.R. (Exh-PB/1), recovery memo of last worn clothes of the deceased (Exh-PC), warrants of arrest of Muhammad Mukarram appellant (Exh-PD), warrants of arrest of Muhammad Shoaib (since P.0) along with report (Exh-PE & Exh-PE/1), proclamation of Muhammad Shoaib (since P.O.) along with report (ExhPF & Exh-PF/1), proclamation of Muhammad Mukarram (appellant) along with report (Exh-PG & Exh-PG/1), postmortem report of Nadeem Ahmad (deceased) along with pictorial diagrams (Exh-PH, Exh-PH/1 & Exh-PH/2), injury statement of the deceased (Exh-PJ), inquest report of the deceased (ExhPK), recovery memo of blood-stained earth (Exh-PL), recovery memo of .30 bore pistol (P-4) along with five live bullets (P-5/1-5) at the instance of Atif Farid co- accused (since acquitted) (Exh-PM), rough site plan of the place of recovey of .30 bore pistol P-4 along with five live bullets P5/1-5 (Exh-PM/1), recovery memo of .30 bore pistol (P-6) along with four live bullets (P-7/1-4) at the instance of Kamran alias Bao appellant (Exh-PN), rough site plan of the place of recovery of .30 bore pistol P-6 along with four live bullets P-7/1-4 (Exh-PN/1), recovery memo of .30 bore pistol (P-8) along with three live bullets (P-9/1-3) at the instance of Muhammad viukarram co-accused (since acquitted) Exh-PQ), rough site plan of the place of )ccurrence (Exh- PR), report of the -2hemical Examiner (Exh-PS), report of the aerologist (Exh-PU) and report of the Forensic Science Laboratory (Exh-PT) and :losed its evidence.
' The statements of the appellant and zis co-accused, under section 342 of the Code of Criminal Procedure, were recorded an 19.11.2008. They refuted the allegations levelled against them and professed their innocence. While answering to a question that "Why this case against you and why the P.Ws. Have deposed against you?" the appellant replied as under:-- "I have falsely been involved in this case. The deceased had enmity with many people and some of his enemy had committed the murder of deceased. I was nominated in this case due to suspicion."
' The appellant did not make statement on oath under section 340 (2) of Cr.P.C., however, produced evidence in his defence, such as copy of original summon in the civil suit titled Muhammad Rasheed v. Muhammad Siddque, and others issued by the court of Mr. Muhammad Saleem Civil Judge, Faisalabad as Exh. DL and copy of plaint of the said suit as Mark-D. The appellant also relied upon the statement made by his co-accused Atif Farid (since acquitted) who in his statement has tendered the following documents, i.e. F.I.R. No. 809 dated 31-10-2002 as Exh.DA, F.I.R. No. 633 dated 14-8-2003 as Exh.DB, F.I.R. No. 631 dated 13-8-2003 as Exh. DC, F.I.R. No. 332 dated 10-6-1999 as Exh.DD, F.I.R. No. 348 dated 13-6-1999 as Exh. DE, F.I.R. No. 370 dated 22-6-1999 as Exh.DF, F.I.R. No. 814 dated 10-12-1998 as Exh. DG, F.I.R. No.755 dated 22-9-2003, registered at Police Station Chak Jhumra as Exh. DH, F.I.R. No. 17 dated 26-1-2000, Police Station Sadar Chakwal as Exh. DJ, F.I.R. No. 18 dated 26-1-2000 Police Station Sadar Chakwal as Exh. DK. The learned trial Court vide its judgment dated 26-11-2008, convicted Kamran alias Bao appellant and sentenced him as mentioned and detailed above.
5. Learned counsel for the appellant, in support of this appeal, contends that the appellant has falsely been implicated in this case; that the complainant and the other eye-witness are not residents of the area where this occurrence took place; that Abdur Rauf (P.W.9) and Muhammad Ajmal (P.W.10) are chance witnesses and they have not been able to give any plausible explanation of their presence at the spot; that the story of the prosecution as narrated in the F.I.R. And disclosed before the learned trial Court is highly improbable; that the name of the person from whom motorcycle was borrowed at the time of occurrence to chase the accused persons was neither mentioned in the F.I.R. Nor in the statements of the P.Ws.; that there is delay of 18-1/2 hours in conducting the postmortem examination on the deadbody of Nadeem Ahmad deceased which suggests that the F.I.R. Was not lodged at the time mentioned therein; that the motive as alleged by the prosecution has not been proved in this case; that the recovery of pistol 30 bore at the instance of the appellant is of no avail to the prosecution because the report of Forensic Science Laboratory is only to the extent of working order of the said pistol; that the case of the prosecution is doubtful from all angles; that the prosecution has miserably failed to prove its case against the appellant beyond the shadow of doubt; thus, this appeal be accepted and the appellant may be acquitted from the charge.
6. Learned Deputy Prosecutor-General, for the State, assisted by learned counsel for the complainant opposes this appeal on the grounds that the occurrence in this case took place on 14-8-2007 at 3-00 p.m., whereas, the matter was promptly reported to the police on the same day, i.e. On 14-8-2007 at 4-25 p.m.; that there is no delay in reporting the matter to the police if all the material available on the record is taken into consideration; that the complainant and other eye- witness are residents of the same area where this occurrence took place; that in order to prove its case, the natural eye-witnesses' account has been furnished by the prosecution, which inspires confidence and despite lengthy cross-examination, the defence could not shake the testimony of the prosecution witnesses; that there could not be any reason to falsely implicate the appellant in this case; that the motive has also been proved in this case; that the ocular account of the prosecution gets full support from the medical evidence; that prosecution case is further corroborated by the recovery of 30 bore pistol from the possession of the appellant; that there is no mitigating circumstance in this case; that the sentence of death was rightly awarded to the appellant and the same may be maintained, appeal may be dismissed and Murder Reference be answered in the affirmative.
7. We have heard the arguments, of learned counsel for the appellant, the learned Deputy Prosecutor-General assisted by the learned counsel for the complainant and have also gone through the record with their able assistance.
8. It is pertinent to mention here that four accused persons namely Kamran alias Bao (appellant), Muhammad Mukarram and Atif Farid accused and Muhammad Shoaib (PO) along with two unknown accused persons were nominated in the F.I.R. With specific roles of causing firearm injuries on the person of Nadeem Ahmad deceased. Out of the above mentioned four accused persons, Muhammad Shoaib has been declared a Proclaimed Offender. However, Atif Farid and Muhammad Mukarram co-accused were convicted and sentenced to death by the learned trial Court but they have been acquitted by this Court vide judgment dated 25-9-2012 in light of the compromise effected between them and legal heirs of the deceased.
9. The detail of the prosecution story as set forth in the F.I.R. Has already been given in Para No. 2 of this judgment, therefore, there is no need to repeat the same. The occurrence in this case took place on 14-8-2007 at 3-00 p.m., whereas, according to the prosecution case the matter was reported to the police on the same day at 4-25 p.m. And the formal F.I.R. Was also registered on the same day at about 5-15. p.m. We have noted that the post-mortem examination on the deadbody of Nadeem Ahmad deceased was conducted on the next day, i.e. 15-8-2007 at 9-30 a.m. With a delay of 18-1/2 hours from the occurrence. Although the doctor has stated during his cross- examination that the facility of postmortem examination at the night time was not available in the concerned hospital but we have noted that Rafaqat Ali No. 4457/C (P.W.6) has stated during his cross-examination that on the day of occurrence he escorted the deadbody of Nadeem Ahmad deceased to the hospital. He further stated that he reached at the hospital at 5-30 p.m. As the occurrence took place in the nonth of August (14-8-2007) when the sun ets after 7-00 p.m., therefore, the Explanation for the above mentioned delay n conducting the post-mortem examination In the deadbody of Nadeem Ahmad leceased due to non-availability of facilities of the post-mortem examination at the night ime in the concerned hospital has been Pelied from the prosecution's own evidence produced through Rafaqat Ali No. 4457/C P.W.6). As there is no plausible Explanation for the above mentioned delay of 18-1/2 hours in conducting the Postmortem examination on the deadbody Pf Nadeem Ahmad deceased, therefore, it is luite obvious that the occurrence was inseen and the said, delay was consumed in :oncocting a false and fabricated story of he prosecution, to procure the attendance of eye-witnesses and the F.I.R. Was not odged at the time mentioned therein. We may refer here the base of Irshad Ahmad v. ''he State (2011 SCM R 1190) wherein it vas observed that the post-mortem :xamination of the deadbody had been conducted with a noticeable delay and such lelay is generally suggestive of a real Possibility that time had been consumed by he police in procuring and planting eyevitnesses and in cooking up a story for the prosecution before preparing police papers necessary for getting a post-mortem :xamination of the deadbody conducted.
' Similar view was taken by the Ion'ble Supreme Court of Pakistan in the ase of Muhammad Ashraf v.
The State 2012 SCM R 419). Similarly, in the case of (halid alias Khalidi and 2 others v. The state (2012 SCM R 327), the Hon'ble Supreme Court of Pakistan considered the delay of 13 hours from the occurrence in onducting the post-mortem examination on he deadbody of deceased, to be an adverse act against the prosecution case and it was held that it shows that the F.I.R. Was not lodged at the given time.
10. The ocular account of the prosecution was furnished by Abdur Rauf complainant (P.W.9) and Muhammad Ajmal (P.W.10). Both the above mentioned eye-witnesses are chance witnesses because the occurrence in this case took place in the area of Chak No. 145/RB, whereas, the complainant Abdur Rauf (P.W.9) is resident of a different Chak, i.e. Chak No. 146/RB and Muhammad Ajmal (P.W.10) is resident of Mohallah Hassanpura, Street No. 8, Dhudhi Wala, Faisalabad. The story narrated by the above mentioned eye-witnesses regarding their presence at the spot does not appeal to common sense. They have stated that the accused persons, who were total six in number came to the bridge of Canal Bangla Sardarwala on a 2.0D car and forcibly abducted Nadeem Ahmad deceased at gun point and took him in the said car to Chak No. 145/RB where they committed his murder. It is not understandable that as to why the appellant did not commit the murder of the deceased at the place wherefrom he was abducted and what was the reason with him for taking him in the area of Chak No. 145/RB to commit his murder. According to the story of the prosecution, six accused persons were already present in the car while armed with different weapons and they also abducted Nadeem Ahmad deceased while putting him in the same car and as such there were seven persons in one car. The aforementioned exercise of putting the deceased with all the accused persons in one car and taking the deceased from the bridge of Canal Banglow Sardarwala to Chak No. 145/RB has not been convincingly explained by the prosecution. The above mentioned witnesses have also stated that after the abduction of Nadeem Ahmad deceased a motorcyclist came to the spot and they (P.Ws.) borrowed his motorcycle and followed the accused persons on the said motorcycle and when they reached in the area of Chak No.145/RB, they witnessed the occurrence. The name of the person from whom the motorcycle was borrowed and returned after the occurrence was neither mentioned in the F.I.R. Nor in the statements of above mentioned eye-witnesses and they have simply stated that the motorcycle was driven by some unknown person. The complainant Abdur Rauf (P.W.9) has further stated during his cross-examination that he does not know the name of the person from whom the motorcycle was borrowed nor the number of the motorcycle. We have also noted that Abdur Rauf complainant (P.W.9) has stated during his cross-examination that Rikshaw and Tonga also ply and available in the village and he further stated that they did not hire any Rikshaw, etc. As Nadeem Ahmad deceased preferred to walk by foot. He further stated that the 'Salarwala Banglow' was at a distance of 1-1/2 kilometers from their chak. The complainant has not claimed that due to financial constraints they did not hire Rikshaw, rather he stated that Nadeem Ahmad deceased preferred to walk by foot. The story of taking a walk in the scorching heat of August at 3.00 p.m. Is also not convincing. No reason was mentioned in the F.I.R. By the complainant for going of the complainant party to Faisalabad on 14-8-2007 as it was a public holiday due to 'Pakistan Day', though the eye- witnesses tried to give explanation in this respect while making their statements before the learned trial Court. We are, therefore, of the view that there are inherent defects in the prosecution case.
11. The motive according to the prosecution case behind the occurrence was that two days prior to the occurrence Atif Farid and Muhammad Mukarram co-accused (since acquitted) quarrelled with Nadeem Ahmad deceased due to some money dispute and because of the said grudge, the accused persons committed the murder of Nadeem Ahmad deceased. It is evident from the perusal of prosecution evidence that no motive was alleged against Kamran alias Bao appellant and the same was attributed to Atif Farid and Muhammad Mukarram accused (since acquitted).
As mentioned earlier, the said accused persons have been acquitted by this Court vide judgment dated 25-9-2012 due to the compromise effected between them and the legal heirs of the deceased/ complainant party. We are, therefore, of the view that the motive as alleged by the prosecution has not been proved against the present appellant.
12. Insofar as the alleged recovery of pistol P-6 on the pointation of Kamran alias Bao appellant is concerned, the same is of no avail to the prosecution because the Forensic Science Laboratory report is only to the extent of working order of the said pistol. In absence of matching report of any empty with the said pistol, the alleged recovery of pistol P-6 on the pointation of the appellant is immaterial.
13. Insofar as the medical evidence furnished by the prosecution is concerned, it is by now well- settled law that medical evidence is a type of supporting evidence, which may confirm the ocular account with regard to the receipt of injury, nature of injury, kind of weapon used in the occurrence but it would not identify the C assailant. Reference in this context may, be made to the cases of 'Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others' (PLD 2009 SC 53). 'Altaf Hussain v. Fakhar Hussain and another' (2008 SCM R 1103) and 'Mursal Kazmi alias Qamar Shah and another v. The State' (2009 SCM R 1410).
14. We have considered all the aspects of this case and have come to this irresistible conclusion that the prosecution could not prove its case against Kamran alias Bao appellant beyond the shadow of doubt. It is by now well-settled law that if there is a single circumstance which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances which have created serious doubt about the prosecution story. In Tariq Pervez v. The State' (1995 SCM R 1345), the Hon'ble Supreme Court of Pakistan, at page 1347, was pleased to observe as under:-
5. The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts.
If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right.'
' The Hon'ble Supreme Court of Pakistan while reiterating the same principle in the case of 'Muhammad Akram v. The State' (2009 SCM R 230), at page 236, observed as under:--
13. 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."
15. In the light of above discussion, we are of the view that the prosecution has failed to prove its case against the appellants beyond the shadow of doubt, therefore, we accept the Criminal Appeal No.1358 of 2008 filed by Kamran alias Bao appellant, set aside his conviction and sentence recorded by the learned Additional Sessions Judge, Faisalabad vide judgment dated 26-11-2008 and acquit him of the charge by extending him the benefit of doubt. Kamran alias Bao appellant is in custody, he be released forthwith if not required in any other case.
16. Murder Reference No. 12 of 2009 is answered in the NEGATIVE and the sentence of death of Kamran alias Bao, (convict) is NOT CONFIRMED.
17. However, before parting with the judgment, we may observe here that the observations made in this judgment shall not influence the learned trial Court during the trial of the absconding accused namely, Muhammad Shoaib and his case shall be decided on its own merits on the basis of the evidence to be adduced during the trial of the said appellant.