' SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Saif Ali son of Niaz Ali, caste Jat, resident of Chak No,85-JB, Police Station, Dijkot, District Faisalabad, appellant, along with Muhammad Siddique and Muhammad Saeed and two unknown accused persons was involved in case F.I.R. No,96, dated 28- 2-2007, offence under sections 302, 34, P.P.C., registered with Police Station, Dijkot, District Faisalabad, and was tried by the learned Additional Sessions Judge, Faisalabad. The learned trial court seized with the matter in terms of judgment dated 30-1-2010, convicted the appellant under section 302(b), P.P.C., and sentenced him to death as Ta'zir. He was also burdened to pay Rs,1,0G,000 as compensation to the legal heirs of deceased in terms of section 544-A, Cr.P.C. And in case of default in payment thereof, to undergo S.I. For six months. While Muhammad Siddique and Muhammad Saeed co-accused were acquitted of the charge by the learned trial court vide judgment stated above.
2. Feeling aggrieved by the judgment of the learned trial court, the appellant impugned the same by way of filing Criminal Appeal No,93-J/2010 while the learned trial court forwarded Murder Reference No,198 of 2010 for confirmation of death sentence inflicted upon Saif Ali/convict in terms of section 374, Cr.P.C. As both these matters are arising out of one and the same judgment of the learned trial court, therefore, these are being disposed of through single judgment.
3. Prosecution story as contained in the F.I.R. (Exh.PE/II) lodged on the statement of Yousaf Ali/complainant (P.W.7) is that he is resident of Chak No,85/JB and is a zamindar by profession. His elder brother Muhammad Tufail is the Gaddi Nashin of the shrine of Sain Inayat Ali Shah and had been living over there. On the previous night, the complainant along with Muhammad Akram Muhammad Sharif and Muhammad Arshad son of Muhammad Rasheed, caste Arain, residents of the deh went to the said darbar sharif for hazari. They remained gossiping with each other in the darbar sharif till late night. Thereafter the brother of the complainant Muhammad Tufail slept in the corridor of the darbar, whereas the complainant along with Muhammad Akram and Muhammad Arshad slept in a room at the backside of the darbar sharif. At about 3:30 a.m. (night) they heard the noise of hue and cry from the darbar. All three of them woke up and saw that Saif Ali son of Niaz Ali armed with hatchet, Muhammad Siddique armed with Toka, Muhammad Saeed armed with danda, sons of Mubarik Ali, caste Jat, along with two unknown accused persons while armed with sotas, who could be identified on confrontation, had caught hold of his brother. In their view, Sail Ali, Muhammad Siddique and Muhammad Saeed inflicted hatchet and toka blows one after the other landing upon the head of his brother. As a result of which, the skull of his brother was severely damaged, who fell down. Whereupon Saif Ali, Muhammad Siddique, Muhammad Saeed and two unknown accused persons inflicted sota, hatchet and toka blows upon Muhammad Tufail in falling condition landing on his right/left hands, arms and legs. They raised lalkara. On seeing them, the accused persons fled away. After the departure of the accused, they attended his brother, but he succumbed to the injuries at the spot.
4. Motive behind the occurrence as contained in the crime report was that Saif Ali, Muhammad Siddique and Muhammad Saeed accused wanted to occupy darbar sharif by using unfair means.
Due to that grudge, they along with two unknown accused persons committed murder of his brother by causing hatchet, toka and danda blows.
5. The complainant left the dead body of his brother in the safe custody of Muhammad Akram and Muhammad Arshad and was going to report the matter to the police, when he met Nazakat Ali, S.I.
(P.W.3), who recorded statement of the complainant.. The Investigating Officer wrote complaint (Exh.PE), which was read over to Yousaf Ali complainant, who signed the same as token of its correctness. He sent the same to the police station for registration of formal F.I.R. Through Muhammad Sharif, 2025/HC. Upon which, Mahmood Hussain, S.I. (P.W.6) recorded formal F.I.R.
(Exh.PE/II).
' The investigations of this case was entrusted to Sarfraz Ali, S.I. Investigating Officer (P.W.10) on 28- 2-2007. On the same day, after examining the file, he reached at the place of occurrence, secured blood-stained earth from the place of occurrence, which was made into sealed parcel and taken into possession vide recovery memo (Exh.PF). Thereafter the Investigating Officer proceeded to the Civil Hospital, Dijkot, where the dead body of Muhammad Tufail (deceased) was lying. The Investigating Officer prepared the injury statement (Exh.PB), inquest report (Exh.PC) of the deceased and handed over the dead body to Mushtaq Ahmad 3114/C for autopsy. The Investigating Officer recorded the statements of the witnesses namely Muhammad Arshad, Muhammad Akram and Mubarik Ali under section 161, Cr.P.C. On the same day, the Investigating Officer proceeded to Chak No,85/GB for the arrest of the accused persons, who were not available at their given addresses. On 1-3-2007, the Investigating Officer inspected the place of occurrence and prepared rough site plan of the place of occurrence (Exh.PJ). On 3-3-2007, the Investigating Officer took Akbar Ali Nizami, draftsman (P.W.2) to the place of occurrence, who took rough notes of the place of occurrence and on 6-3-2007, he handed over the scaled site plan (Exh.PD) and its duplicate copy (Exh.PD/1) to the Investigating Officer. The Investigating _Officer recorded the statement of Akbar Ali Nizami, draftsman under section 161, Cr.P.C. On 15-3-2007, the Investigating Officer arrested Saif Ali and Muhammad Siddique. On 16-3-2007, he obtained physical remand of both the accused from the court of learned Illaqa Magistrate for three days. On 18-3-2007, Saif Ali accused after making disclosure got recovered Kassi. (P-1) from his house, which was taken into possession by the Investigating Officer vide recovery memo (Exh . PG). The Investigating Officer prepared the rough site plan of the place of recovery (Exh. PG/1). On 19-3-2007, the Investigating Officer sent Saif Ali accused to judicial lock-up. On 1-4-2007, the Investigating Officer recorded the statements of Muhammad Khan 2333/HC/ Moharrar and Muhammad Afzal, 1490/C regarding the safe custody and transmission of sealed parcel of bloodstained earth to the office of Chemical Examiner, Lahore.
6. Having found the appellant guilty, the Investigating Officer prepared report under section 173, Cr.P.C. And sent the same to the Court of Session en-routed through the Illaqa Magistrate as provided under section 190(2), Cr.P.C. On 29-1-2008, the learned Sessions Judge, Faisalabad formally charge sheeted the appellant to which he pleaded not guilty and claimed trial. On submission of supplementary challan, amended charge was framed on 6-8-2008, to which the appellant pleaded not guilty and claimed trial. Prosecution in support of its version produced as many as thirteen (13) prosecution witnesses.
' Occular account in this case has come out from the statements of Yousaf Ali complainant (P.W.7) and Muhammad Akram (P.W.8), Akbar Ali Nizami, draftsman (P.W.2) had prepared scaled site plan of the place of occurrence. Investigation of this case was initially carried out by Sarfraz Ali, S.I.
(P.W.10), but subsequently the same was conducted by Khadim Hussain, S.I. (P.W.4) and Munir Ahmad, (P.W.9).
' Dr. Pervaiz Akhtar (P.W.1) had conducted postmortem examination upon the dead body of deceased and found following injuries on his person:-- "(1) A skull bone badly fractured with absence of skull bone pieces and brain matter was coming out. Most of the brain matter was also absent (missing).
(2) A lacerated wound 3 cm x 1 cm x skin deep on the back of left hand.
(3) A lacerated wound 2 cm x 1 cm x skin deep on the back of right wrist joint.
(4) An abrasion 4 cm x 3 cm on the front of right knee-joint.
(5) A contusion 6 cm x 4 cm on the outer side of left leg middle part.
' After conducting the postmortem examination, the doctor rendered the following opinion:-- "In my opinion, the cause of death was brain damage, haemorrhage and shock collectively and separately, which was due to injury No,1., so Injury No,1 was sufficient to cause death in ordinary course of nature. This injury was ante mortem. Other injuries were also ante mortem. Probable time that elapsed between injury and death was immediate and between death and post mortem was about 10 hours".
' Statements of rest of the prosecution witnesses are formal in nature.
7. On 15-12-2009, learned ADPP gave up Muhammad Arshad, Abdul Aziz and Muhammad Aslam, P.Ws. Being unnecessary. Vide separate statement recorded on 22-1-2010; learned ADPP closed the prosecution evidence.
8. The appellant was examined under section 342, Cr.P.C., wherein he opted not to appear as his own witness in terms of section 340(2), Cr.P.C. In disproof of the allegations levelled against him in the prosecution evidence, however opted to produce defence evidence. While replying to the question why this case against him and why the P.Ws. Deposed against him, the appellant made the following deposition:-- "It is a false case, The P.Ws. Are related inter se. They have deposed against me falsely with mala fide intention. The prosecution version is totally false. The real facts are that I am suffering from mental ailment since 2004 and due to my mental ailment when I was in a state of mental fits, I could not differentiate between right and wrong. On the fateful night of occurrence, while I was suffering from mental ailment, in that condition I alone gave Kassi blows from its wrong side to Muhammad Tufail deceased hitting on different parts of his body. My other co-accused namely Muhammad Siddique and Muhammad Saeed were not present at the time of occurrence. The complainant and the alleged eye-witnesses were also not present at the place of occurrence at the time of occurrence, nor did they see the occurrence. I did not intentionally committed the murder of Muhammad Tufail deceased; rather I also remained under treatment of Dr. Shaukat Ali Zahid Psychiatrist. I also remained under treatment during my detention in the jail. The complainant party falsely involved my two other co-accused, who are my brothers as to no body should leave to pursue the case and in order to pressurize us".
' In defence evidence, Dr. Shaukat Ali Zahid was produced as DW-1 and Dr. Imtiaz Ahmad Dogar was adduced as DW-2.
9. Learned trial court after evaluating the evidence available on record in light of arguments advanced from both sides, found the prosecution version proved beyond shadow of reasonable doubt resulting into conviction of the appellant in the afore stated terms.
10. Learned counsel for the appellant while opening his arguments submitted that as per prosecution version, the occurrence in the instant case had taken place in the mid night of 27/28- 2-2007, and the matter was reported to the police on 28-2-2007 at 9:30 a.m. Whereas inter se distance of the place of occurrence and the police station is 13 KMs. Hence, there is delay of 8/9 hours in lodging the crime report which speaks volumes qua the authenticity of prosecution version and as such the same is fatal to the prosecution case. Added that as per contents of the crime report, the appellant had been ascribed the role of causing hatchet blows, whereas his co- accused namely Muhammad Siddique and Muhammad Saeed have been assigned the role of causing toka and danda blows respectively to the deceased. It was argued that Dr. Parvaiz Akhtar, Medical Officer (P.W.1) has stated that injury No,1 which has caused damage to brain was in fact the cause of death and the same was sufficient to cause death in ordinary course of nature. While referring the cross-examination of the Medical Officer (P.W.1), learned counsel contended that he has admitted that the possibility of causing injury No,1 by blunt mean i.e, hammer cannot be ruled out. Injuries Nos.2 and 3 were caused by blunt weapons, whereas injury No,4 was an abrasion, which could be result of falling on the ground. While referring the medical evidence, learned counsel argued that in fact it was an unseen occurrence and the deceased was an old man of advance age of ninety years. Learned counsel contended that there is contradiction between the occular account and medical evidence as far as the appellant is concerned. Learned counsel went on arguing that the prosecution witnesses were not present at the place of occurrence and if they would have been present at the place of occurrence, the matter would have been reported to the police with promptitude which is lacking in the instant case. Further argued that recovery of kassi from the appellant do not advance the prosecution case because it was lying in the courtyard under the cluster of woods and the same was not stained with blood. It was contended that co- accused of the appellant namely Muhammad Siddique and Muhammad Saeed with active participation in the occurrence had been acquitted by the learned trial court and the prosecution had not availed the remedy to challenge the same, therefore, the case of the appellant is also at par with the acquitted co-accused, therefore, he is also entitled to the clean acquittal from this case.
11. On the other hand, learned. Deputy Prosecutor General assisted by learned counsel for the complainant vehemently opposed the contentions raised by learned counsel for the appellant. It was argued that the appellant is named in the crime report with specific allegation. It was submitted that recovery of weapon of offence has been effected from the appellant. It was next submitted that though at one stage of point, the appellant moved an application for declaring him as insane but the same was withdrawn. Learned counsel for the complainant submitted that the appellant was instrumental in commission of the offence. It was argued that sufficient evidence is available on the record to connect the appellant with the commission of the offence alleged against him. Learned Deputy Prosecutor General contended that the appellant was found guilty during the course of investigation and his name was placed in column No,3 of the report prepared under section 173, Cr.P.C. As such the learned trial court while attending each and every aspect of the case on the touchstone of evidence available on the record rightly inflicted normal penalty of death sentence provided under the statute.
12. Arguments advanced from both sides have been heard. We have also gone through the record available on file with the able assistance of learned counsel for the appellant as well as, learned Deputy Prosecutor General.
13. There is no second cavil to this proposition that as per prosecution version the occurrence in this case had taken place in the mid-night of 27/28-2-2007 and the matter was reported to the police on 28-2-2007 at 9:30 a.m. Whereas the inter se A distance of the place of occurrence and the police station is 13 KMs and as such there is at least 8/9 hours delay in lodging the crime report for which no plausible explanation has been rendered by the prosecution. The argument of learned counsel for the appellant is that if the prosecution witnesses would have been present at the place of occurrence, they would have definitely informed the local police about the occurrence with promptitude. The medical evidence in the instant case is squarely contradicted by occular account as according to the contents of the crime report, the appellant was stated to be armed with hatchet, whereas Dr. Parvaiz Akhtar (P.W.1) has given the opinion contrary to that. According to the doctor, injury No,1 was sufficient to cause death in the ordinary course of nature and the same could have been caused by blunt means. As far as rest of the injuries are concerned, injuries Nos.2 and 3 were also caused with blunt means whereas injury No,4 was an abrasion as per statement of the doctor. As per contents of the crime report, the appellant was stated to be armed with hatchet, but the weapon of offence was changed during the course of cross examination by the complainant to the effect that the appellant was armed with kassi. The weapon of offence was also changed to the extent of Muhammad Siddique, co-accused of the appellant from toka to hatchet, whereas Saeed co-accused, who was stated to be armed with danda remained intact. All the facts and circumstances when evaluated conjointly, the fact remains that the prosecution has changed its stance and has tried to bring the case in line, but miserably failed to do so. The recovery in this case is of no consequence because the same was effected from an open place lying under the cluster of wood. Muhammad Siddique and Muhammad Saeed, co-accused of the appellant, who actively participated in the occurrence were acquitted by the learned trial court while extending the benefit of doubt while disbelieving bulk of the prosecution version, on the same set of evidence.
Their acquittal has not been assailed by the prosecution before any forum. It is settled principle of law that if evidence of the prosecution is disbelieved qua certain accused it cannot be believed qua the other in the absence of very strong corroboration. Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the cases of Akhtar All and others v. The State (2008 SCM R 6), Sheral alias Sher Muhammad's case (1999 SCM R 697) and Sher Bahadur's case (1972 SCM R 651).
14. It is cordial principle of law that the prosecution has to stand on its own legs and weaknesses of the defence cannot be made basis for recording conviction in any manner. In the instant case after examining the prosecution case from all corners and evaluating it on the touchstone of interpretation of dictum of "safe administration of criminal justice" this Court has arrived at the conclusion that in this case the prosecution has miserably failed to establish its case against the appellant beyond reasonable doubt. The reasoning advanced by the learned trial court while recording guilt of the appellant are based upon inculpatory part of statement of the appellant recorded in terms of section 342, Cr.P.C. It is established principle of law that either statement of the accused has to be accepted in toto or discarded in entirety unless there existed other independent/reliable evidence supplementing the prosecution case, which is straightway missing in the case in hand. In its salutary judgment in the case of Iftikhar Ahmed v. The State and others (2014 SCM R 7) the august Supreme Court of Pakistan had held as under:-- 342---Conviction based solely on statement of accused in court under S.342, Cr.P.C.--Scope---If the conviction of accused was to be based solely on its statement in court, then such statement should be taken into consideration in its entirety and not merely the inculpatory part of it to the exclusion of the exculpatory, unless there was other reliable evidence which supplemented the prosecution case---In such a condition, the exculpatory part if proved to be false might be excluded."
' While examining statement of the appellant on the touchstone of other attending circumstances we have been persuaded to draw irresistible conclusion that the same is confusing itself as, hence the same loses its legal sanctity, therefore, we have been persuaded to keep it out of consideration.
Similar principle was laid down in the case of Waqar Ahmed v. Shaukat Ali and others (2006 SCM R 1139).
15. Moreover, it is established principle of law that for extending the benefit of doubt in favour of the accused, so many circumstances are not required, rather one circumstance which creates reasonable doubt in the veracity of the prosecution version, can be taken into consideration for the purpose, not as a matter of grace, rather as a matter of right. Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the cases of "Taria Pervez v.
The State" (1995 SCM R 1345) "Riaz Masih alias Mithoo v. The State," (1995 SCM R 1730) and "Muhammad Akram v. The State (2009 SCM R 230). In the case of "Taria Pervez v. The State" (1995 SCM R 1345), the august Supreme Court of Pakistan has held as under:-- "---Art.4---Benefit of doubt, grant of---Forgiving benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubts---If a simple circumstance creates reasonable doubt in a prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right".
16. From the facts and circumstances narrated above, we are persuaded to hold that prosecution has badly failed to substantiate its case against the appellant to the hilt and the learned trial court was not justified in convicting him while basing upon such untrustworthy/ uncorroborated evidence, which even otherwise is full of material contradictions especially the material contradictions in the occular account and the medical evidence and conviction passed by the learned trial court in the circumstances is against all canons of law recognized for the dispensation of criminal justice. 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 while setting aside the conviction and sentence recorded by the learned trial court in terms of judgment dated 30-1- 2010, Criminal Appeal No,93-J of 2010 filed by Saif Ali/appellant is ACCEPTED IN TOTO. Consequently he is ordered to be acquitted of the charge in this case. He be released forthwith if not required in any other case.
' Murder Reference No,198 of 2010 forwarded by the learned trial court for confirmation of sentence of death inflicted upon Saif Ali/convict fails, which is answered in NEGATIVE. Death sentence is NOT CONFIRMED.