Muhammad Anwaar-Ul-Haq, J.--Muhammad Aslam alias Nannha (appellant in Criminal Appeal No, 296-J of 2009) and Rashid Ahmad alias Shaddi (appellant in Criminal Appeal No, 478 of 2007) alongwith their co-accused namely Mumtaz, Rehmat Ali alias Iftikhar alias Khari and Navid alias Navidi were tried in case F.I.R. No, 74/2005 dated 13.09.2005, registered at Police Station Satiana District Faisalabad, in respect of offences under Sections 302, 324, 396, 412, 148, 149, PPC. After conclusion of trial, the learned trial Court vide its judgment dated 19.02.2007 has acquitted the accused namely Mumtaz and Rehmat Ali alias Iftikhar alias Khari and has convicted and sentenced the appellants Muhammad Aslam alias Nannha and Rashid Ahmad alias Shaddi as well as co-accused Navid alias Navidi as under:-- Muhammad Aslam alias Nannha:
(i) Death Sentence under Section 302(b)/34, PPC and to pay compensation of Rs, 100,000/- under Section 544-A, Cr.P.C. To legal heirs of the deceased and in default of payment of compensation to further undergo six months S.I.
(ii) One Year R.I. Under Section 337-F(iii)/34, PPC and to pay Daman of Rs,5000/- to injured PW Muhammad Din alias Manna.
Rashid Ahmad alias Shaddi & Navid alias Navidi:
(i) Imprisonment for Life each under Section 302(b)/34, PPC and to pay compensation of Rs,50,000/- each under Section 544-A, Cr.P.C. To legal heirs of the deceased and in default of payment of compensation to further undergo six months S.I. Each.
(ii) One Year R.I. each under Section 337-F(iii)/34, PPC and to pay Daman of Rs,5000/- each to injured PW Muhammad Din alias Manna.
Murder Reference No, 259 of 2007 for confirmation or otherwise of death sentence awarded to appellant Muhammad Aslam alias Nannha and Criminal Revision No, 227 of 2007 filed by the complainant for enhancement of sentence of accused Rashid Ahmad alias Shaddi and Navid alias Navidi shall also be disposed of through this single judgment.
2. It is pertinent to mention here that co-convict of the appellants namely Navid alias Navidi has also filed Criminal Appeal No, 336 of 2007 before this Court against his conviction and sentence however, the same has already abated vide order dated 18.06.2014 passed in that appeal when it was brought to the notice of the Court that appellant Navid alias Navidi has been murdered. It is also relevant to mention that Criminal Appeal No, 453 of 2007 filed by the complainant against acquittal of accused Mumtaz and Rehmat Ali alias Iftikhar alias Khari was dismissed in limine by a Division Bench of this Court on 20.09.2007.
3. F.I.R in this case (Ex.PJ/1) was registered on the statement (Ex.PJ) of complainant Attique-ur- Rehman (PW-9). Briefly the prosecution story unfolded in the statement of the complainant is that on 13.09.2005 at about 5:00 p.m., the complainant alongwith his brother Muhammad Nawaz were coming to their house on foot from Square No, 60 and on their way his brother Muhammad Younis (deceased) and Muhammad Din alias M anna (injured PW) crossed them while riding on Motorcycle No, FS-3232 (Honda 125-CC); when Muhammad Younis and Muhammad Din alias Manna reached neave the intervening 'Watt' of Killa Nos. 1 and 2 falling in Square No, 60, three unknown accused while armed with fire-arms emerged from the sugarcane crop and came on the road; meanwhile, two other unknown accused riding on a motorcycle also reached there; they all raised lalhara and three unknown accused started firing with their fire-arms; first fire shot hit Muhammad Younis on his left flank due to which Muhammad Younis and Muhammad Din alias Manna fell down from the motorcycle; thereafter, two unknown accused who were riding on the motorcycle also made firing upon Muhammad Younis and Muhammad Din alias Manna and the fire shots hit below the left and right ears of Muhammad Younis and at the lower part of the left leg of Muhammad Din alias Manna; the witnesses raised hue and cry and all the accused fled away while making aerial firing and they also took away the motorcycle of Muhammad Younis; they attended Muhammad Younis who succumbed to the injuries at the spot; that the accused have murdered Muhammad Younis and have injured Muhammad Din alias Manna for some unknown reasons. However, appellants alongwith their three other co-accused were introduced by the complainant as assailants through his supplementary statement (not produced during the trial).
4. Accused were formally charge sheeted under Sections 302, 324, 396, 412, 148, 149, PPC, to which they pleaded not guilty and claimed trial. Prosecution examined as many as 14 witnesses to prove the charge against the accused. Dr. Sohail Tariq (PW-1) provided medical evidence; Nazir Hassan, S.I. (PW-13) and Munir Ahmad, inspector (PW-14) conducted investigation of this case; Attique-ur- Rehman, complainant (PW-9) and Muhammad Din alias Manna (PW10) have furnished the ocular account, whereas Rauf-ur-Rehman (PW6) and Muhammad Malik (PW-7) are the witnesses of 'Wajtakkar'.
5. Learned SPP gave up PWs Muhammad Nawaz, Abdul Rehman, Muhammad Bashir, Muhammad Amin, Saeed-ur-Rehman, Sikandar Hayat No, 213/C and Zulfiqar Ali No, 2938/C being unnecessary witnesses and after tendering in evidence report of Chemical Examiner (Ex.PX) and report of Serologist (Ex.PY) closed the prosecution case.
6. On 14.09.2005 at 7:00 a.m., Dr. Sohail Tariq, PW-1 conducted post-mortem examination on the dead body of Muhammad Younis and observed as under:--
(i) A fire-arm lacerated wound of entry measuring 3.0 x 2.5 cm present on left side of neck, just posterior to left ear (1.5 cm postro-inferior to base of left ear). The wound was bone deep.
Blackening and burning were present.
(ii) A fire-arm lacerated wound of exit 4 in number present on right side of neck, had appearance of a big wound measuring 2.0 cm x 1.5 cm, about 6.5 cm right to mid-vertebral line and 2.5 cm from the base of left ear. There were 3 other wounds 1.0 cm x 1.0 cm each (exit) lying about 1.0 cm superior to big hole of exit and those 3 wounds were separate from each other about 1.5 cm.. All were bone deep. Crepitus of survical spines was appreciable.
(Injury No, 1 and Injury No, 2 were communicating with each other).
Injury No, 2 was present in an area of 6.00 cm x 5 cm.
(iii) A fire-arm lacerated wound, grazing, through and through measuring 2.00 x 2.5 cm present on pinna of left ear.
(iv) There were wound 8 in number, entry, present in an area of 10.00 cm x 10.00 cm on the back of right side of chest upper part, 15 cm from acromioclavicular joint, on scapular region, there was a skin deep laceration circular in shape of 2.00 cm x 2.00 cm present in centre of said area of 10.00 cm x 10.00 cm (wad injury). All were bone deep and had slightly burned-abraded margins.
(v) A fire-arm lacerated wound of entry measuring 4 cm x 4 cm present on postro-lateral aspect of left side of chest, 28 cm inferior to left shoulder and 22 cm above to left iliac crest and 28 cm left to mid-vertebral line. Wound was cavity deep and had burned-abraded inverted margins.
Corresponding holes were present on Qameez for Injury No 4 and were present on Qameez and Bunyan for Injury No, 5.
(vi) A fire-arm lacerated wounds of entry 1 cm x 1 cm with swelling of said area of 3 cm x 5 cm present on Dorsal aspect of proximal of middle finger of left hand and was bone deep.
(vii) A fire-arm grazing wound lacerated, skin deep, present on dorsal-o-lateral aspect of ring finger of left hand measuring 1.5 x 0.7 cm.
On dissection of Injury No, 1, a wad of cartridge was searched out in left side of neck, near survical vertebrae.
In his opinion, Injuries No, 1, 4 and 5 were too fatal to cause death in this particular case (amongst Injuries No, 1, 4 and 5, Injury No, 1 was most lethal and other two injuries were contributory) that caused damage to most vital organs, brain, spinal cord, lungs, aorta resulting in massive hemorrhage leading to sock and were sufficient to cause death in ordinary course of nature; all the injuries were ante mortem and caused by fire-arm; the probable time elapsed between injuries and death was immediate and between death and post-mortem within 15 hours.
On 13.09.2005 at about 06:30 p.m., PW-1 medically examined Muhammad Din alias Manna and found the following injury on his person:-- "A fire-arm lacerated wound, grazing in type, measuring 16 cm x 6.0 cm, which was muscle deep, present on lower part of postro-medial aspect of left leg, inferior end of wound was just posterior to medial malleolus and upper end of wound was wider than inferior end."
In his opinion, the injury was caused by fire-arm and was fresh on arrival of the injured; he has further observed that the patient was well-oriented in time and space and that the patient was profusely bleeding from the injury but peripheral pulses of left leg were intact.
7. In their statements under Section 342, Cr.P.C., both the appellants refuted all the allegations levelled against them and professed their innocence. While answering to question (Why this case against you and why the PWs have deposed against you?), appellants replied asunder: Muhammad Aslam alias Nannha: "The PWs are related interse, while injured PW Muhammad Din is a servant of the complainant. The complainant party was supporting Ch. Mukhtar Ahmad Jat in the election of Nazim and came to me for vote and I flatly refused and supported Rana Rab Nawaz of our village. Therefore, the complainant party nourished grudge. Against me. Furthermore, one Ghulam Qadir from brotherhood of the complainant party, who got registered a murder case against my co-accused Navid alias Navidi and his relatives, prior to the occurrence came to me alongwith the complainant and asked to provide them spy information about Navid and his relatives, who were on visiting terms with. Munir Wattoo, whose Dera was situated near the poultry farm of Navid accused, but I refused to become a party in the murder enmity of Navid accused and Ghulam Qadir as well as the complainant, on which Ghulam Qadir threatened me of dire consequences. In fact, Muhammad Younis was murdered by some unknown persons, who could not be traced out by the police and the complainant and they involved me in this case due to above said enmity. The complainant and aforesaid Muhammad Nawaz had not given the features of any culprit so that they could involve any person. No identification parade was held in this case. Muhammad Din injured PW, when appeared before Ameer Ali ASI had not nominated me in Ex.PE."
Rashid Ahmad alias Shaddi: "It is a false case. The PWs being closely related to the deceased and due to political rivalry have made false statements. Muhammad Bashir, uncle of Younis deceased was contesting the election of Local Bodies held on 25.08.2005 as Nazim, Naimat Ullah maternal uncle of Mumtaz accused was his opponent. Due to the said political rivalry and jealously of the business with Attique-ur-Rehman PW1 have been involved in this case falsely. Mumtaz accused is running the business of Baluch Goods Transport at the Adda of Chak No, 33/GB. Moon Star Goods is being run by Muhammad Sarwar, cousin of Attique-ur-Rehman PW, who is also rivals with the business of Mumtaz accused.
There exists old enmity between Navid accused and the complainant party of murder case. We have relationship inter-se with Rehmat Ali alias Iftikhar alias Khari and Rashid Ahmad accused. We all the 3 persons have been involved in this case due to rivalry and enmity. The PWs did not see the occurrence and they have made false deposition. During investigation, the complainant party could not substantiate his case."
8. Both the accused/appellants did not opt to appear as their own witness under Section 340(2), Cr.P.C. And have also not produced any defence evidence. However, after conclusion of the trial, the appellants 'have been convicted and sentenced by the learn ed trial Court, as mentioned above.
9. Learned counsel for the appellants contend that it is a case of blind murder as the complainant Attique-ur-Rehman, real brother of the deceased, when got recorded his statement before the police at 05:40 p.m. On 13.09.2005 has categorically stated that five unknown accused had murdered his brother Muhammad Younis for some unknown reasons; that formal F.I.R was also recorded at 05:45 p.m. In the Police Station with the same version of the complainant; that it was daylight occurrence and out of five accused four persons namely Rashid Ahmad alias Shaddi, Mumtaz, Rehmat Ali alias Iftikhar alias Khasi and Navid alias Navidi were residents of the same village of the complainant i,e, Chak No, 32/GB whereas fifth accused Muhammad Aslam alias Nannha was resident of an adjacent Chak No, 30/GB, but astonishingly the complainant has not identified them and stamped them unknown that speaks mala-fide of the complainant; that recovery of guns .12-bore shown against appellants Muhammad Aslam alias Nannha and R.Ashid Ahmad alias Shaddi is inconsequential as no empty was recovered from the spot for comparison of the same and there is no report of the Forensic Science Laboratory; that no motive has been set up by the prosecution even during the trial against the appellants; that injury on the person of injured Muhammad Din alias Manna is a fabricated injury; that Mureed Hussain No, 2403/C who allegedly took the injured to the doctor has not been produced during the trial; that as per site- plan (Ex.PH/1), all the accused were at a distance of minimum three to four karams from the injured and the deceased whereas as per post-mortem of the deceased, he was fired at from a very close range because wad was also recovered and the doctor has observed blackening and burning on the injuries, therefore, medical evidence is in conflict with the ocular account furnished by PWs and with the site-plan; that during the trial, the learned trial Court has not believed the evidence of PW- 9 (complainant) and that of PW-6 and PW-7 (witnesses of wajtakkar) and has only relied upon the evidence of injured PW-10 Muhammad Din alias Manna; that sole statement of PW-10 was not sufficient to convict the appellants for the reason that the stance taken by the injured PW that he became unconscious on receiving the injury is neither supported by contents of the F.I.R nor from karwai of police or from statement of the doctor who medically examined the injured; that accused Rehmat Ali alias Iftikhar alias Khari against whom there was allegation of causing firearm injury to injured Muhammad Din alias Manna has already been acquitted by the learned trial Court and appeal against his acquittal has also been dismissed by this Court on 20.09.2007; that the prosecution failed to prove its case against the appellants beyond any shadow of doubt, therefore, they deserve acquittal by giving them the benefit of doubt.
10. On the other hand, learned Deputy Prosecutor General assisted by learned counsel for the complainant has controverted the arguments of learned counsel for the appellants by submitting that it was a daylight occurrence and the matter was reported to the police immediately after the occurrence; that there is statement of the injured PW Muhammad Din alias Manna who neither has any enmity with the appellants nor has any blood relationship with the deceased; that statement of the injured PW reflects that he sustained injury during this occurrence and the learned trial Court has rightly believed his evidence that is fully corroborated by the medical evidence available on record; that evidence of one single witness especially when he received injury during the occurrence can be made basis for awarding capital sentence; that acquittal of accused Rehmat Ali alias Iftikhar alias Khari does not affect the evidence of injured PW-10 as the learned trial Court has extended him benefit of doubt and there is no observation of the learned trial Court that injured Muhammad Din alias Manna has not received fire-arm injury during this occurrence; that both the eye-witnesses have no enmity with the accused persons and they remained consistent on all material aspects of the prosecution case; that ocular account is fully supported by the medical evidence, therefore, prosecution has proved its case against the appellants beyond any shadow of doubt.
11. We have heard the learned counsel for the parties at length, have given anxious consideration to their arguments and have also scanned the record with their able assistance.
12. As per F.I.R, some unknown accused have Committed this occurrence for some unknown reasons, however, through supplementary statement of the complainant five accused were nominated. We have noticed with concern that such supplementary statement of the complainant has not been produced during the trial.
13. At the very outset, learned counsel for the complainant has not much emphasized on the evidence of the complainant/PW-9 Attique-ur-Rehman and the evidence of Wajtakkar provided by PW-6 Rauf-ur-Rehman and PW-7 Abdul Malik and has only stressed upon the evidence of the injured PW Muhammad Din alias Manna by stating that he is the star witness who had received fire-arm injury during the occurrence, thus his statement is trustworthy and reliable.
14. The ocular account has been furnished by PW-9 Attique-ur-Rehman and PW-10 Muhammad Din alias Manna. PW-9 Attique-ur-Rehman is real brother of the deceased and PW-10 Muhammad Din alias Manna as per his own deposition before the learned trial Court was a contractor of fruit orchards and remained lessee of the orchard owned by the complainant party. Admittedly, four accused namely Rashid Ahmad alias Shaddi, Mumtaz, Rehmat Ali alias Iftikhar alias Khari and Navid alias Navidi were also residents of the same village where both the PWs (PW-9 & PW-10) were residing i,e, Chak No, 32/GB, Police Station Satiana District Faisalabad, whereas, accused Muhammad Aslam alias Nannha was resident of a nearby village i,e, Chak No, 30/GB and the injured PW-10 Muhammad Din alias Manna in his cross-examination has admitted that accused Aslam alias Nannha was known to him prior to the occurrence and that he also used to visit the orchard of the complainant. Admittedly, learned trial Court has disbelieved the evidence of PW-6, PW-7 and that of PW-9 (complainant of this case) and has only relied upon PW-10 Muhammad Din alias Manna.
15. It is true that it is not the quantity but the quality of evidence that is to be taken into consideration while believing the same and solitary statement of a witness when reliable is sufficient to bring home guilt of the accused. But, here in this case we are unable to place reliance on the statement of only witness relied by the learned trial Court i,e, PW-10 Muhammad Din alias Manna for the reasons that as per case of the complainant he did not know any of the accused who made firing upon the deceased and the injured, thus he did not nominate accused in the F.I.R at 05:40 p.m. While making his statement before the police and it was PW-10 Muhammad Din alias Manna who disclosed the names of the assailants to him for the first time after the registration of the case on 13.09.2005. We have noticed that this case remained against unknown accused even till the preparation of site-plan (Ex.PH/1) by the draftsman (PW-3) on 16.05.2005 who has stated as under:-- "It is correct that in Ex.PH the name of any of the accused has not been mentioned. The PWs did not inform me about the name of any accused."
Astonishingly PW-10 who knew all the accused had disclosed the names to the complainant on the same day but the complainant did not disclose the names even on 16.09.2005 at the time when the draftsman was taking rough notes for the preparation of scaled site-plan. The reason advanced by the prosecution that PW-10 became unconscious is not supported by any evidence. PW-10 has stated before the Court as under:- "Then Khari accused made fire hitting upon the lower side of my left leg and then I became unconscious. I was taken to Civil Hospital, Satyana, where I regained my senses."
This part of the statement of PW-10 has been contradicted by the statement of Dr. Sohail Tariq (PW-1) who medically examined PW-10 on 13.09.2005 at 06:30 p.m. And has stated before the Court as under:-- "On 13.09.2005 at about 6.30 P.M. Muhammad Din s/o Mehar Din injured, aged 60 years, Male, Caste Mochi, Occupation Labour, R/o Chak No, 32/GB, brought to me by police constable Murid Hussain No, 2403/C. Following injuries were noted:--
1. A fire-arm lacerated wound, grazing in type, measuring 16 cm x 6.0 cm, which was muscle deep, presenf on lower part of postro-medial aspect of left leg, inferior end of wound was just posterior to medial malleolus and upper end of wound was wider than inferior end.
Condition of Patient:-- "Patient was well-oriented in time and space. B.P was 110/80. Temperature was normal. Pulse was 108 bpm and respiratory A rate was normal. S1 + S2 + 0, Chest was clear bilaterally.
Patient was profusely bleeding from Injury No, 1, but periepheral pulses of left leg were intact.
This piece of medical evidence clearly provides that at 06:30 p.m., PW10 was conscious and was just normal to make any statement, therefore, explanation advanced by the prosecution that F.I.R was lodged against unknown accused because PW-10 became unconscious is not believable.
16. It is worth mentioning that as per prosecution case the injured was laying unconscious when police reached the place of occurrence but the relevant portion of the complaint 'Karwai Police'
(Ex.PJ) is totally silent about this very important aspect of the case and same is the position in the site-plan prepared by the Investigating Officer at the spot. We have further noticed that in the Medico-legal Certificate, name of Mureed Hussain No, 2403/C has been mentioned who brought the injured to the hospital, but said constable was not produced by the prosecution and in view of withholding of this most , important evidence in the peculiar circumstances of this, case we have no option but to draw an adverse inference against the prosecution keeping in view Article 129(g) of Qanun-e-Shahadat Order, 1984. We are of the considered view that the alleged injured PW and the complainant have taken the stance of unconsciousness of PW 10 only to fabricate a story against the appellants who were known to them being residents of the same area and substituting them with the unknown accused in the F.I.R was not possible without twisting the prosecution case in this manner.
17. Argument o learned counsel for the complainant that PW10 has no enmity with the appellant and, therefore, his evidence cannot be discarded is misconceived. It has been well settled by the Hon'ble Supreme Court of Pakistan in plethora of case law that mere absence of enmity of a prosecution Witness does not provide a stamp of truth to his testimony and the real test to believe the same is his statement if the same is in consonance with the natural probabilities and materially fits in with other evidence on record and inspires confidence. In this context, we respectfully rely on the case of Muhammad Arshad alias Achhi vs. The-State (1995 SCM R 1639).
18. Recovery of fire-arms shown to be recovered from the appellants is inconsequential as there is no report of the Forensic Science Laboratory available on the record. Another question which earises with reference to the corroboration is whether medical evidence can corroborate the ocular evidence qua the appellants. The answer is in the negative, because when we talk of corroboration, it is always with regard to the story of the prosecution and with regard to the identity of each accused. The medical evidence may confirm the ocular evidence with regard to the receipt of the injury, kind of weapon used for causing the injury, duration between the injury and the death, but it cannot connect the accused with the commission of the crime.
19. In the light of our above discussion, we find that the prosecution story in the circumstances is doubtful in nature and the accused/appellants are entitled to the benefit of doubt not as a matter of grace but as a matter of right. In this context, we respectfully refer the case of Muhammad Akram vs. The State (2009 SCM R 230), wherein the Hon'ble Supreme Court has held as under: "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 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."
In the case of Muhammad Luqman vs. The State (PLD 1970 SC 10), it was held that "a finding of guilt against an accused person cannot be based merely on the high probabilities that may be inferred from evidence in a given case. The finding as regards his guilt should be rested surely and firmly on the evidence produced in the case and the plain inferences of guilt that may irresistibly be drawn from that evidence. Mere conjectures and probabilities cannot take the place of proof. If a case was to be decided merely on high probabilities regarding the existence or non-existence of a fact to prove the guilt of a person, the golden rule of "benefit of doubt" to an accused person, which has been a dominant feature of the administration of criminal justice in this country with the consistent approval of the Superior Courts, will be reduced to a naught."
20. Therefore, Criminal Appeal No, 296-J of 2009 and Criminal Appeal No, 478 of 2007 are allowed, the convictions and sentences recorded by the learned trial Court against the appellants through the impugned judgment dated 19.02.2007 are set aside and by extending them the benefit of doubt they are acquitted of the charges. Appellant Muhammad Aslam alias Nannha is in jail and shall be released forthwith if not required in any other case, whereas appellant Rashid Ahmad alias Shaddi is on bail and his 'surety is discharged from the liability of bail bond.
21. In the light of our above findings, Criminal Revision No, 227 of 2007 filed by the complainant for enhancement of sentence of Accused/Respondents No, 1 and 2 namely Rashid Ahmad alias Shaddi and Navid alias Navidi stands dismissed.
22. Death sentence of convict Muhammad Aslam alias .Nannha is not confirmed and Murder Reference No, 259 of 2007 is answered in the Negative.