SYED SHAHBAZ ALI RIZVI, J.---This judgment shall dispose of Criminal Appeal No,1386 of 2010 titled as "Fateh Sher v. The State" filed by Fateh Sher, appellant and Criminal Appeal No,1631 of 2010 titled as "Wafadar Mursaleen & another v. The State" filed by Wafadar Mursaleen and Ashiq, appellants against their convictions and sentences, Criminal Appeal No,1610 of 2010 titled as "Mali v. Ashiq and another" filed by the complainant against the acquittal of respondents from the charges under sections 302 & 201, P.P.C. And Criminal Revision No,729 of 2010 titled as "Mali v. Fateh Sher and another" filed by the complainant for compensation to be paid to the legal heirs of the deceased and Murder Reference No,370 of 2010 titled as "The State v. Fateh Sher" transmitted by the learned trial Court for confirmation or otherwise of the sentence of death awarded to the appellant Fateh Sher being originated from the same judgment dated 27-5-2010 passed by the learned Additional Sessions Judge, Chiniot, in a case F.I.R. No,98 dated 21-2-2008, registered under sections 302, 201 & 34, P.P.C. At Police Station Langrana, District Jhang (now Chiniot), whereby the appellant Fateh Sher was convicted under section 302(b), P.P.C. For committing murder of Muhammad Ashraf and sentenced to death as Ta'zir. He was also directed to pay Rs,5, 00,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.0 and in default thereof to further undergo simple imprisonment for six months. The appellant Fateh Sher was also convicted under section 364, P.P.C.
And sentenced to ten years rigorous imprisonment along with fine of Rs,50, 000 and in case of nonpayment of fine to further undergo simple imprisonment for six months. Wafadar Mursaleen (since dead) and Ashiq appellants were convicted under section 364, P.P.C. And sentenced to ten years rigorous imprisonment each along with fine of Rs,50,000 each, in case of nonpayment of fine to further undergo simple imprisonment for six months each. However, they were acquitted under sections 302 & 201, P.P.C. They were also extended the benefit of section 382-B, Cr.P.C.
2. It is pertinent to mention here that Criminal Appeal No,1631 of 2010 stands abated to the extent of Wafadar Mursaleen due to his death vide order dated 24-3-2014 passed by this Court.
3. Brief facts of the case, as unveiled by Mali complainant (PW-2) in his complaint (Exh.P.A) which culminated into registration of FIR (Exh.PA/1) are that on 14-2-2008 at 10:00 a.m he (complainant) along with his brother Muhammad Ashraf, Jamal son of Wasava and Ashraf son of Dolat was present at his "dhari". Ashiq, Wafadar Mursaleen and Fateh Sher, the accused came there and said to his brother Muhammad Ashraf "you are searching for Gulzar Gondal (a proclaimed offender) since long. We have found him. Come with us, we get him caught". Upon this Muhammad Ashraf deceased went with them on motorcycle to see the place of shelter of Gulzar Gondal. The complainant got busy in elections. His brother did not contact him. On 21-2-2008 the complainant along with Nawaz and Zafar went in search of his brother Muhammad Ashraf deceased at the "dhari" of Fateh Sher accused where Muhammad Ashiq accused was present. When he (complainant) asked about his brother, Ashiq accused after some reluctance, confessed that on 14-2-2008, Fateh Sher, while present at "Saim" canal in Chak No,144/JB, had fired with his gun which hit Muhammad Ashraf, who fell down. Wafadar Mursaleen fired with his rifle which hit on the face of Muhammad Ashraf deceased. It was done to please Gulzar Gondal, who was also present there. All of them wrapped the dead body of Muhammad Ashraf in his own Chadar and threw it in the Saim canal. He (Ashiq) confessed their guilt.
Motive behind the occurrence as alleged by the complainant is that Gulzar Gondal was a proclaimed offender in case F.I.R. No,564 dated 17-9-2006 registered under section 302, P.P.C. At P.S. Langrana in which Muhammad Ashraf deceased having relations with the complainant party of the said FIR was striving for the arrest of said proclaimed offender and due to this reason Muhammad Ashraf was murdered by the accused/appellants.
4. Fateh Sher, Wafadar Mursaleen and Ashiq, the appellants were arrested in this case on 9-3-2008 by Muhammad Ramzan Sub-Inspector/ Investigating Officer (PW-13). Ashiq while in police custody, after making disclosure on 19-3-2008, got recovered .12 bore gun (P-1) from his residential room which was taken into possession vide recovery memo. Exh.PD and Wafadar Mursaleen got recovered pump action rifle (P-2) which was taken into possession vide recovery memo. Exh.PE.
Fateh Sher, while in police custody, after making disclosure on 21-3-2008, got recovered .12-bore gun double barrel (P-3) which was taken into possession vide recovery memo. Ex.PE/2. After completion of the investigation, the challan was prepared and submitted before the learned trial court. The learned trial Court after observing all the pretrial codal formalities, indicted the appellants to which they pleaded not guilty and claimed to be tried.
5. In order to prove its case, the prosecution produced as many as fourteen witnesses during the trial. The ocular account of the murder occurrence was furnished by Nasir (PW-4), while the complainant PW-2 gave last seen evidence and the evidence of extra-judicial confession and Zafar PW-3 verified the statement of PW-2 to the extent of extra-judicial confession.
6. The medical evidence was furnished by Dr. Mushtaq Bashir (PW-6) who conducted the postmortem examination on the dead body of Muhammad Ashraf on 21-2-2008 and observed the following injuries:--
1. Lacerated wound 3cm x 2cm on the right cheek margin were inverted underlying face and skull bone were fractured. Wound of entrance.
2(a) Lacerated wound 4cm x 2cm on the back and upper middle of left chest; margins were inverted corresponding hole present on the Qamiz and Jersy. Wound of entrance.
(b) Eight lacerated wounds 3/4cm x 3/4cm each on the front and upper part of left chest. Margins were everted with corresponding whole present on the `Qamiz' and `Jersy'. Wound of exit.
The doctor was of the opinion that death, in this case, occurred due to haemorrhage, shock and injury to vital organs (brain and left lung) resulting from injuries Nos.1 & 2 which were sufficient to cause death in ordinary course of nature. All injuries were caused with firearm and were ante mortem. Probable time that elapsed between injuries and death was immediate while between death and post mortem examination approximately 6 to 8 days.
7. Muhammad Ramzan (PW-13) is the Investigating Officer of this case. Nazir Patwari (PW-10) prepared the scaled site plan of the place of occurrence. Rests of the witnesses are formal in nature. However the learned trial court examined Dr. Aamir Ali Hussain Khan as CW.1.
8. The prosecution gave up Muhammad Nawaz, Noor-ul-Hassan, Mamman, Ashraf s/o Dolat, Muhammad Nawaz s/o Hassan Khan and Syed Imdad Ali Shah PWs being unnecessary and by tendering into evidence reports of Chemical Examiner (Exh.PO/1), Serologist (Exh.PO) and that of Forensic Science Laboratory (Mark "A" and Exh.CW.I/A) closed the prosecution evidence.
9. Statements of the appellants were recorded under section 342, Cr.P.C. They refuted the allegations leveled against them and professed their innocence. While answering to a question "Why this case against you and why the PWs have deposed against you"?, Fateh Sher appellant replied as under:- "PWs are related inter se and they have deposed against me falsely"
Wafadar Mursaleen (since dead) and Ashiq appellants, to the same question, replied on the same lines as under:- "Due to enmity".
10. The appellants neither appeared as their own witnesses to make statements on oath under section 340(2), Cr.P.C., in disproof of allegations levelled against them by the prosecution nor did they produce documentary evidence in his defence.
11. The learned trial court vide its judgment dated 27-5-2010, found the appellants guilty, convicted and sentenced them as mentioned above.
12. Learned counsel appearing on behalf of Fateh Sher and Ashiq appellants contend that the appellants have been falsely implicated in this case; that in fact it was an unseen occurrence and the appellants have been roped in this case by the complainant in connivance with the police. The learned counsel for the appellants have further averred that the prosecution has withheld the material witnesses which fact is sufficient to infer against the prosecution; that the story of extra- judicial confession is concocted one; that the motive has not been proved by the prosecution; that the appellants have been involved in this case due to previous enmity between the parties; that the recoveries made at the instance of the appellants are planted just to strengthen the prosecution stance and that stance taken by the prosecution qua the abduction or witnessing murder occurrence is, not only unbelievable but unnatural as well. The learned counsel for the appellants contends that the prosecution has miserably failed to prove the case against the appellants beyond reasonable shadow of doubt. Lastly prays for acquittal of the appellants.
13. Conversely, learned Deputy Prosecutor General assisted by the learned counsel for the complainant has vehemently opposed the contentions raised by learned counsel for the appellants and maintained that the appellants are nominated in the FIR; that the recoveries of the crime weapons stand effected at the instance of the appellants; that the last seen evidence is corroborated by the recovery of crime empties and extra-judicial confession made by the appellants; that the ocular account is also corroborated by the medical evidence; that it is a case of direct as well as circumstantial evidence starting from the abduction of Muhammad Ashraf till his death and the chain of facts exists against the accused and that the motive stands proved against the appellants. Prays that the impugned judgment may be upheld and the appeals be dismissed maintaining the convictions and sentences awarded to the appellants.
14. We have heard the learned counsel for the appellants; the learned Deputy Prosecutor General assisted by the learned counsel for the complainant and perused the record with their able assistance.
15. We have observed that to prove its case, the prosecution furnished five pieces of evidence i,e, (i) ocular account, (ii) evidence of last seen/abduction, (iii) extra-judicial confession, (iv) medical evidence and (v) recovery of crime weapon. To substantiate its stand through the ocular account, the prosecution has produced Nasir (PW-4) who furnished the ocular account of the incident by stating that he along with Noor-ul-Hassan on the day of incident witnessed the occurrence of murder of deceased by the nominated accused persons including the appellants. He also maintained that unknown accused pointed gun towards him and his companion Noor-ul-Hassan and after 6/7 days he along with Noor-ul-Hassan (given up PW) went to the complainant party, offered funeral prayer of the deceased and disclosed about the occurrence to the brother of the deceased and the police as well. We have given our anxious consideration to his evidence but we do not feel ourselves persuaded to believe the same. It is not the natural conduct that both the witnesses kept silent for 6/7 days and did not disclose the occurrence to anybody. PW-4 Nasir has maintained during the cross-examination as under:-- "....It is correct that I first time appeared before the police on 22-2-2008. I do not inform the police of P.S. Chenab Nagar or P.S. Langrana prior to 22-2-2008. It is correct that there are Lumberdar, Chowkidar and respectable inhabitants of my village. I did not take any Lumberdar or respectable inhabitant with me for informing the police. I even did not inform to any f my family members."
The delay in disclosing the occurrence to the police and the mysterious silence of the witnesses has gone unexplained during the trial. The statement given by Nasir PW-4 is also pregnant with dishonest and material a improvement which further creates doubt about the probity of his evidence. The relevant portion of his statement is reproduced as under:-- "I got recorded my statement before the police I stated in my statement, recorded before the police that we along with other persons were passing through in connection with election. Again said that I and Noor-ul-Hassan were only two persons and none was with us at that time.
Confronted with Exh.D/A where it is not so recorded.............It was not recorded in my statement that four persons were beating with butts of their rifles/guns. Confronted with Exh.D/A where it is so recorded. I had stated in my statement Exh.D/A that Fateh Sher accused gave firing blow to a man which hit him on his back. Confronted with Exh.D/A where it is not so recorded. I had got recorded in my statement Exh.D/A that the accused Kaka fired on the person which hit him on right side of his face. Confronted with Exh.D/A where it is not so recorded. I stated in my statement Exh.D/A that one person was lying on the ground. Confronted, with Exh.D/A where it is not so recorded. I stated in my statement Exh.D/A that unknown persons pointed out their guns towards us and extended threats to go away otherwise you will not be spared. Confronted with Exh.D/A where it is not so recorded. I stated in my statement Exh.D/A that after 6/7 days I awoke up in the morning when I was performing my Fajar prayer and a man named Bhai Khan told us that the dead body has been found the same Nala near Chak Ludhyana. Confronted with Exh.D/A where it is not so recorded. I stated in my statement Exh.D/A that the dead body of the deceased is stated to be of Haral resident of Yaraykay. Confronted with Exh.D/A where it is not so recorded. I stated in my statement Exh.D/A that the dead body of the deceased was lying in the Same Nala. Confronted with Exh.D/A where it is not so recorded. I stated in my statement Exh.D/A that I along with Noor-ul-Hassan went to Yaraykay to inform the brother of deceased that we have seen the dead body in Same Nala.
Confronted with Exh.D/A where it is not so recorded. I had stated in my statement before the police that I and Noor-ul-Hassan identified the dead body of the deceased at the time of his funeral prayer. Confronted with Exh.D/A where it is not so recorded.."
The above reproduced part of the statement of solitary eyewitness renders the veracity of his testimony seriously doubtful. In this regard reference is respectfully made to the case titled as Khalid Javed v. State (2003 SCMR 1419). Furthermore, the prosecution has given up the other eye- witness Noor-ul-Hassan being unnecessary who was the only material witness to corroborate the statement of Nasir PW-4. The contention raised by the learned counsel for the appellants that in the peculiar circumstances of this case the prosecution has withheld the material witness, does not look ill- founded and the inference against the prosecution in view of Article 129(g) of the Qanun-e-Shahadat Order, 1984, is to be drawn against the prosecution, ergo, we are of the view that the ocular account produced by the prosecution is not trustworthy being dubious and unnatural.
16. As far as the evidence of last seen and abduction is concerned, we have noticed that the complainant PW-2 has appeared to furnish the evidence of last seen who has maintained that the appellants came to his Dera when he was present there along with the deceased Muhammad Ashraf, Mamman, Ashraf son of Daulat and took Muhammad Ashraf deceased, with them to locate Gulzar Gondal (the proclaimed offender), who had murdered Muhammad Ashraf son of Noor Muhammad known to the deceased, but astonishing is that despite of the fact that it was in the knowledge of the complainant, the real brother of the deceased, that he (deceased) had gone with the appellants to locate and get effected the arrest of a proclaimed offender but he did not bother to inquire about his brother till 21-2-2008. This unnatural conduct of PW-2 casts serious doubt on the veracity of his testimony. The appellants remained on extensive physical remand but no Motorcycle on which the deceased was allegedly abducted could be recovered. Even no other independent witness to corroborate the stance of the complainant qua the abduction of deceased by the appellant and co-accused has been produced despite the alleged presence of other witnesses at the relevant time.
17. As regards the evidence of extra-judicial confession is concerned, the perusal of the complaint (Exh.PA) and the F.I.R. (Exh.PA/1) reveals that co-accused Ashiq Baloch (since acquitted of the Charge under sections 302 and 201, P.P.C.) made extra judicial confession in presence of the complainant PW-2, Zafar PW-3 and Nawaz son of Saee (given up PW) regarding the murder of Muhammad Ashraf deceased by himself, Fateh Sher appellant, Wafadar Mursaleen alias Kaka (since dead) and Gulzar Gondal (since P.O.) while the F.I.R. And statement of PW-3 recorded under section 161, Cr.P.C. Speak nothing about any extra-judicial confession allegedly made by Fateh Sher appellant as is alleged by PW-2 and PW-3 when they appeared in the witness box which have been got confronted by the defence during the cross-examination of both the witnesses. Such like flagrant and material improvements render the same doubtful and it is to be kept out of consideration by the Court, in this regard respectful reference is made to the cases titled and reported as Muhammad Rafique and others v. The State and others (2010 SCMR 385), Akhtar Ali and others v. The State (2008 SCMR 6), Ibrar Hussain and another v. The State and another (2007 SCMR 605) and Farman Ahmad v. Muhammad lnayat and others (2007 SCMR 1825) and Khalid Javed and another v. The State (2003 SCMR 1419) where in, at page 1438, the Hon'ble Supreme Court of Pakistan was pleased to observe as under:- "...In this behalf it may be observed that according to administration of criminal justice a witness who makes glaring contradictions, omissions and improvements in * his Court statement qua the statement recorded by him before the police either as per the contents of the FIR if he is complainant or if he is a witness and his statement is recorded under section 161, Cr. P. C. Such witness is to be considered to be wholly unreliable witness and it is not advisable to place explicit reliance upon his evidence..."
Moreover, Ashiq Baloch co-accused has been acquitted of the charge under sections 302 and 201, P.P.C., by the learned trial Court by disbelieving the prosecution: evidence of extra-judicial confession allegedly ,made by him while the extra-judicial confession made by Fateh Sher appellant has become doubtful, the conviction of the appellant cannot be maintained on the basis of already disbelieved extra-judicial confession made by the co-accused Ashiq Baloch. The evidence of extrajudicial confession is, even otherwise, not confidence inspiring and believable because of the fact that it is not the natural conduct that the complainant went to the Dera of the accused and the accused without any compelling circumstances made the confessional statement before them.
18. In view of our observation regarding the ocular account, evidence of last seen and extra-judicial confession the evidence of recovery which is of corroboratory in nature, in isolation is not sufficient to connect the appellant with the offence. Guidance, in this respect is sought from the case titled Muhammad Jamil v. Muhammad Akram and others reported as (2009 SCMR 120) wherein, at page 123, it was observed as under:- "...It is borne out from the record that the alleged recovery of blood-stained Chhuri has affected after about one month of the occurrence from an open plot which was not in exclusive possession of the respondent and was accessible to all. It was also not likely that the blood would not disintegrate meanwhile. So the reasons advanced by the learned Judge in Chambers are not arbitrary or fanciful for not believing the recovery..."
Even otherwise, recovery at the instance of Fateh Sher appellant as alleged by the prosecution was effected on 21-3-2008 while he was formally arrested on 9-3-2008, so, recovery at the belated stage of physical remand is not free from doubt in the peculiar circumstances of this case.
Similarly, the medical evidence is meant to describe the nature of injuries, seat of injuries and the weapon used during the occurrence but it cannot identify the faces of the culprits as is held by the Hon'ble Supreme Court of Pakistan in the cases of Mursal Kazmi alias Qamar Shah v. The State (2009 SCMR 1410), Altaf Hussain v. Fakhar Hussain and another (2008 SCMR 1103) and Muhammad Tasawar v. Hafiz Zulkarnain and 2 others (PLD 2009 SC 53).
19. For what has been discussed above, having considered, all the pros and cons of this case, we have come to an irresistible conclusion that the prosecution could not prove its case against Fateh Sher, appellant, beyond any shadow of reasonable 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 the case titled as Tariq Pervez v. The State (1995 SCMR 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 SCMR 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 favor 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 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there if 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. "
Furthermore, the responsibility to prove its case against the accused squarely rests upon the prosecution and this burden cannot be shifted to the defence. Reference is made to the cases of Mst. Shamshad v. The State (1998 SCMR 854) and Waqar v. Shaukat and others (2006 SCMR 1139).
20. In the light of above discussion, we are of the view that the prosecution has miserably failed to prove its case against the appellants Fateh Sher and Ashiq beyond the shadow of reasonable doubt, therefore, we accept Criminal Appeal No,1386 of 2010 filed by Fateh Sher (appellant) and Criminal Appeal No,1631 of 2010 filed by Ashiq (appellant) and set aside their convictions and sentences recorded by the learned trial Court vide impugned judgment dated 27-5-2010. Fateh Sher, appellant, is acquitted from the charges under sections 302(b), P.P.C. And 364, P.P.C. And Ashiq, appellant, is acquitted from the charge under Section 364 P.P.C., by extending them the benefit of doubt. Fateh Sher appellant is in custody, be released forthwith', if not required in any other case. Ashiq, appellant is on bail. His bail bonds are discharged and surety is released.
21. In view of our findings in preceding paragraphs, Criminal Appeal No,1610 of 2010 and Criminal Revision No,729 of 2010 filed by the complainant are hereby dismissed.
22. Murder Reference No,370 of 2010 is answered in the negative and the sentence of death awarded to the convict Fateh Sher is not confirmed.