Abdul Sami Khan, J.:- Through these criminal appeals under Section 410 Cr.P.C. Muhammad Asif, Saif Ullah and Sheharyar appellants have challenged the conviction and sentence awarded to them by the learned Additional Sessions Judge, Wazirabad in case FIR No.117/2009 dated 16.03.2009, under Sections 302, 392, 411, 34 PPC, registered at Police Station Alipur Chatha, District Gujranwala, vide judgment dated 15.04.2010, the same are reproduced as under:- Muhammad Asif & Saif Ullah appellants:- ? Under Section 302(b) PPC read with Section 34 PPC to undergo imprisonment for life with direction to pay Rs.2,00,000/- as provided under Section 544-A Cr.P.C. to the legal heirs of the deceased, which shall be recoverable as arrears of land revenue and in default thereof to further undergo 06-months S.I. Under Section 392 PPC to undergo rigorous imprisonment for 10-years.
Sheharyar appellant:- Under Section 392 PPC to undergo rigorous imprisonment for 10-years. All the sentences awarded to Muhammad Asif, Saif Ullah and Sheharya r appellants were ordered to run concurrently and the benefit of Section 382-B Cr .P.C. was also extended to them.
2. Brief facts of the case according to FIR No.117/2009 are that Hafiz Saif Ullah complainant was a school teacher and his younger brother Zubair Ullah Chatha, aged 35 years, was also school teacher . On 16.03.2009 at 07:15 p.m. Zubair Ullah Chatha, boarded on a motorcycle and went to meet his friend Muhammad Nawaz. At about 08:00 p.m. Muhammad Asif son of Muhammad Feroze informed the complainant that his brother was lying on roadside near government hatchery farm within the area of village Jewkay Kalan in unconscious condition. On receiving information, the complainant alongwith Mukhtar Ahmad reached at the spot, where his brother was lying unconscious and had sustained a fire shot near right knee, which went through and through. They were shifting the injured to Rural Health Center , but he succumbed to the injuries in the way .
3. After registration of FIR, Hafiz Saif Ullah complainant got recorded his supplementary statement before the investigating officer, wherein he implicated the appellants and introduced Muhammad Arif, Akhtar Zaman and Muzaf far Iqbal as eye witnesses of the occurrence. After completion of the investigation, report under Section 173 Cr.P.C. was submitted in the trial Court. At the commencement of trial, after observing legal formalities, learned trial Court framed charge against the appellants, to which they pleaded not guilty and claimed trial. To prove its case, the prosecution produced as many as eleven witnesses during trial before the learned trial Court. Ocular account was furnished by Akhtar Zaman (PW-4) and Muhammad Arif (PW-5). Hafiz Saif Ullah complainant (PW-6) is the informer of occurrence, Muqarrab Hussain constable (PW-7) is the witness of recovery of weapon of offence from Saif Ullah appellant, while Masood Ahmad draftsman (PW-1) prepared site plan of the place of occurre nce. Medical evidence was furnished by Dr. Firasat Ali Shah (PW-2) who conducted postmortem examination on the dead body of the deceased, whereas Muha mmad Khan S.I. (PW-10) testified about the investigation conducted by him. The remaining prosecution witnesses, more or less, are formal in nature.
4. After completion of the prosecution evidence, statements under Section 342 Cr.P.C. of the appellants were recorded by the learned trial Court, wherein they professed innocence and pleaded false implication in the case. They did not opt to get record their statements under Section 340(2) Cr.P.C. and did not produce any witness in his defence. At the end of trial, after thrashing entire evidence and evaluating arguments advanced by learned counsel for the parties in support of their respective versions, the learned trial court found the prosecution' s case against the appellants to have been proved beyond reasonable doubt, convicted and sentenced them as mentioned and detailed in paragraph No.1 above. Hence, these appeals before this Court.
5. Learned counsel for the appellants contends that the prosecution has miserably failed to prove its case against the appellants beyond the shadow of doubt, therefore, the appellants deserve clean acquittal. On the other hand, learned Deputy Prosecutor General assisted by learned counsel for the complainant submits that sufficient evidence has been placed on record, through which the prosecution has successfully brought the guilt of the appellants to the hilt. However , learned counsel for the complainant opted not to oppose the appeal filed by Sheharyar appellant.
6. I have heard the learned counsel for the appellants, learned Deputy Prosecutor General and learned counsel for the complainant and have also gone through the record with their able assistance. It has been observed by this Court that the first information report has not been exhibited in evidence, however , bare reading of the application (Ex.PC) for registration of FIR shows that the occurrence took place on 16.03.2009 at about 08:00 p.m. and the matter was reported to the police by Hafiz Saif Ullah complainant (PW-6) through application (Ex.PC), in consequence of which FIR was chalked out at Police Station Alipur Chatha on the same night at 09:15 p.m. whereas the place of occurrence is at a distance of eight miles from the police station. There is a delay of just one hour and fifteen minutes in reporting the matter to the police, but the fact remains that the appellants are not named in FIR as the culprit of the occurrence and in this eventuality , FIR, which otherwise has not been exhibited in evidence, does not render any sort of corroboration to the case of the prosecution qua the identification of the appellants.
7. There is no cavil to the preposition that eyewitness account is always considered as backbone of every criminal case. It is an admitted position of the case that the complainant is not the eye witness of the occurrence. It is also an admitted fact that nobody is mentioned in application (Ex.PC) as well as in FIR as the eye witness of incident. The names of eye witnesses of the occurrence for the first time were introduced as Akhtar Zaman, Muhammad Arif and Muzaf far Iqbal through supplementary statement got recorded by the complainant before Muhammad Khan S.I./I.O. (PW-10) allegedly on the same night. During trial, Akhtar Zaman and Muhammad Arif appeared before learned trial Court as PW-4 and PW-5 and the third witness i.e. Muzaf far Iqbal was given up by the prosecution. I have gone through the statements of Akhtar Zaman (PW-4) and Muhammad Arif (PW-5), who both claimed that on 16.03.2009 they were going from Head Chanawan to Kot Ratta, at about 06:45 p.m. when they reached near bridge (pulli) of Kot Ratta, three accused intercepted them and on gunpoint took cash and mobile phones from their pockets and then asked them to sit beside pulli, where they sat for 10 minutes and in the meanwhile, a motorcycle came from the side of village Kot Ratta. They (PW-4 & PW-5) further maintained that Muhammad Asif and Sheharyar appellants went on the road to stop the motorcycle, but the motorcyclist did not stop, upon which Muhammad Asif appellant made a fire shot, which hit the rider and he fell down on the ground at a distance of one acre. Although both these PWs came to the Court and tried there level best to implicate the appellants in the instant case, yet there are certain material facts, which persuade this Court to disbeliev e the aforementioned episode. In their statements before the learned trial Court, Akhtar Zaman (PW-4) and Muhammad Arif (PW-5) have deposed that after the occurrence they went to the hospital, where they narrated the whole incident to Hafiz Saif Ullah complainant (PW-6) as well as the police, but this deposition is in direct contradiction to the factual position of the case as admittedly the application (Ex.PC) was submitted by Hafiz Saif Ullah complainant (PW-6) before Ghulam Haider Sub-Inspector at the hospital, wherein neither names of the accused nor the witnes ses of occurrence are mentioned and even the inquest report (Ex.PQ), which was prepared by Muhammad Khan S.I./I.O. (PW-10) in the hospital when he reached there at about 09:45 p.m. does not disclose the names of alleged eye witnesses or the appellants. Same is the position of site plans Ex.PA and Ex.PA/1, which too do not disclose the presence of appellan ts as well as alleged eye witnesses at the spot. I have carefully examined the statement of Masood Ahmad draftsman (PW-1), who inspected the place of occurrence on 19.03.2009 and prepared scaled site plans Ex.PA and Ex.PA/1 on the directio n of police and pointing out of complainant after three days of the occurrence and this fact shows that the supplementary statement was introduced much later by the complainant after joining hands with the investigating officer of this case, because, had the complainant nominated the appellants in his supplementary statement on the same night immediately after the occurrence his name should have been mentioned in the scaled site- plans. If this is not enough, admittedly the deceased fought against death for a considera ble time of 45 minutes, but Akhtar Zaman (PW-4) and Muhammad Arif (PW-5) did not feel appropriate to shift him to the hospital, rather opted to run towards their village. This conduct shown by Akhtar Zaman (PW-4) and Muhammad Arif (PW-5) at the time of occurrence coupled with other facts and circumstances discussed hereinabove clearly dislodge their presence at the spot at the time of occurrence and later on in the hospital as well. As a matter of fact, the whole padding was done by the complainant with active connivance of Akhtar Zaman (PW-4), Muhammad Arif (PW-5) and Muhamm ad Khan S.I./I.O. (PW-10). Even otherwise, the occurrence took place in the mid of March, 2009 at about 08:00 p.m. when darkness had already prevailed, which fact has also been admitted by the complainant as well as the alleged eye witnesses. So in the absence of any source of light at the place of occurrence, there was hardly any chance for Akhtar Zaman (PW-4) and Muhammad Arif (PW5) to identify the appellants even if they were previously known to them.
Keeping in mind the above discussion, I am of the definite view that Akhtar Zaman (PW-4) and Muhammad Arif (PW-5) were not present at the spot at the time of occurrence, therefore, I am not inclined to believe them as trustworthy or confidence inspiring witnesses.
8. Insofar as medical evidence is concerned, it is by now well settled law that medical evidence may confirm the ocular evidence with regard to the seat of injuries, nature of the injuries, kind of weapon used in the occurrence, but it would not connect the accused with the commission of the offence. Reference in this respect may be made to the case of "Muhammad Tasaweer versus Hafiz Zulkarnain and 2 others" (PLD 2009 SC 53). Similar view was taken by the Hon'ble Supreme Court of Pakistan in the cases of "Mursal Kazmi alias Qamar Shah and another versus The State" (2009 SCMR 1410 ) and "Altaf Hussain versus Fakhar Hussain and another" (2008 SCMR 1103). In the absence of trustworthy and confidence inspiring ocular account, medical evidence does not bear any significance
9. As far as the recovery of pistol .30 bore (P10) from Muhammad Asif appellant vide memo Ex.PU and positive report of the Forensic Science Laboratory (Ex.PDD) are concerned, it has been observed by this Court that report of Forensic Science Laboratory has not been put to Muhammad Asif appellant in his statement under section 342, Cr.P.C. It is settled law that if any piece of evidence is not put to the accused in his statement under section 342, Cr.P.C. then the same cannot be used against him for his convicti on. Reliance is placed on the case of Muhammad Shah v. The State (2010 SCMR 1009 ). Even in the case of Sheral alias Sher Muhammad v. The State (1999 SCMR 697) it has been held that any circumstance appearing in the evidence must be put to the accused before it is used against him. There is another strong reason for not using the same against the appellant because it was not suggested to him in his statement under section 342, Cr.P.C. Similarly , there is no allegation against the remaining appellants regarding use of firearm weapons during the incident, so the recovery of pistol .30 bore (P12) allegedly effected from Sheharyar appellant does not hold much importance. Even otherwise, recovery of weapon of offence is merely a corroborative piece of evidence and in the absence of any direct evidence against the appellants, the same cannot be used against them. So the recovery of weapons in this case allegedly effected from Muhammad Asif and Sheharyar appellants is of no consequence and the same is not helpful to the case of the prosecution. Furthermore recovery motorcycle (P15) jointly effected from Muhammad Asif and Sheharyar appellants, mobile phone (P6), cash Rs.600/- from Sheharyar appellant and CNIC alongwith cash Rs.500/- from Muhammad Asif appellant is not believed, because, such items were easy to plant upon the appellants. I, therefore, disbelieve the same.
10. After having looked into the prosecution case from all angles, I have noted that the case to the extent of the appellants is of doubtful nature and their conviction and sentences on the basis of such type of shaky and unreliable evidence cannot be maintained. It is settled by the Apex Court of the country that in case of doubt, its benefit must go to the accused not as a matter of grace but of right. The same proposition came up for consideration in the case reported as Muhammad Akram versus The State (2009 SCMR 230), wherein, at page 236, the Hon'ble Supreme Court of Pakistan, held as under:- "13. The nutshell of the whole discussion is that the prosecution case is not free from doubt. 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 SCMR 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". (emphasis supplied)
11. 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. 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 the accused instead of the prosecution. Reliance can be placed on the case of "Waqar Nazir and others vs. The State" (2007 SCMR 661). 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. So, after considering all the circumstances, this Court is of the considered view that the prosecution has failed to prove its case against the appellants beyond any shadow of doubt, therefore, their appeals are allowed , the impugned judgment is set-aside and they are acquitted of the charges leveled against them in the instant case. Muhammad Asif and Saif Ullah appellants are in police custody . They are directed to be released forthwith if not required in any other case. The sentence of Sheharyar appellant was suspended by this Court on 07.09.2010, although he is not in attendance before this Court today , yet his sureties stand discharged from the liability of surety bonds.