James Joseph, J: This single judgment shall dispose of Criminal Appeal No. 99-J of 2008 filed by Muhammad Shahid appellant against his conviction and sentence, and criminal Revision No. 171 of 2008 filed by Haji Muhammad Yar complainant with the prayer that sentence imparted upon respondent No.1 may kindly be enhanced and converted into death sentence, as both these matters have arisen out of one and the same judgment dated 27.02.2008 passed by learned Additional Sessions Judge, Okara, in case FIR No. 149/2006 dated 24.03.2006, under section 302/324/452/34 PPC, registered at Police Station Saddar Okara whereby the appellant Muhammad Shahid was convicted under section 302(b) PPC and sentenced to life imprisonment as Tazir along with fine of Rs. 100,000/-, as compensation under section 544-A Cr.P.C. In default thereof to further undergo 06 months S.I. The appellant was also convicted and sentence under section 458 PPC to 10 years R.I. Alongwith fine of Rs. 50,000/-. In case of non-payment of fine, the convict shall have to further undergo S.I for 06 months. Both the sentences were ordered to run concurrently. Benefit of section 382-B Cr.P.C. Was also extended to the appellant.
2. Briefly the prosecution story as contained in FIR( Exh PD/1) are that on 23.03.2006 the complainant, who is resident of Islamabad, came to Chak No. 26/2-L Okara alongwith Muhammad Asif son of Nisar Ahmad and Zain son of Muhammad Idress in order to see his brother Wali Muhammad. At about 08.25 P.M. They at once heard hue and cry. The complainant and PWs went towards the room of his brother and saw that Shahid son of Manzoor armed with knife/dagger was inflicting knife/dagger blows on neck, ear, shoulder, face and head in order to commit Qatl-e-amd on the person of Wali Muhammad. The complainant and PWs tried to rescue Wali Muhammad. Two un-known accused persons who were already present in the room appeared and threatened them that if they tried to came ahead, they will be murdered. On hue and cry Abdul Latif and Raja Nasrullah also came there and witnessed the occurrence. The accused while making firing in the dark fled away from there. Motive behind the occurrence is that accused persons came there in order to commit dacoity as brother of the complainant (Wali Muhammad) had received lease amount from the tenant a day prior to the occurrence. The complainant shifted his brother in injured condition to D.H.Q Hospital Okara but due to his precarious condition he was referred to Jinnah Hospital Lahore.
3. After the registration of FIR, investigation was conducted by Muhammad Ishaq Inspector (PW12).
The accused was found guilty during investigation; hence, challan was submitted before the learned trial court. Learned trial Court, after observing all legal formalities provided under the Criminal Procedure Code, framed the charge on 20.07.2006 under section 458/302/34 PPC to which he pleaded not guilty, hence, prosecution evidence was summoned.
4. The prosecution examined Dr. Ghulam Hussain Alvi, SMO, Hospital Okara PW-1 who conducted postmortem examination upon the dead body of Wali Muhammad and found following injuries on his person: -
1. Stitched incised wound 2 % cm in length on left side of head, 4 cm away from the outer angle of left eye.
2. Stitched incised wound 3 % cm in length on lower part of left pinna and upper part of left side of neck.
3. Stitched incised wound 2 cm in length on left check and chin.
4. Stitched incised wound 2 cm in length on left and lower side of neck.
5. Two stitched incised wounds two cm each on left shoulder.
6. Abrasion 1 % cm x 1/4 cm on top of left shoulder.
In his opinion the cause of death was hemorrhage and shock due to injuries No.1, 2 & 4, which in ordinary course of nature were sufficient to cause death. All the injuries were ante-mortem and were caused by sharp edged weapon. The probable time between injury and was within 30 to 36 hours and between death and post mortem was about six hours. Ex PA is the correct carbon copy of the post mortem report whereas Exh PA/1 is the diagram showing the location of the injuries. He also endorsed inquest report Exh PB and injury statement Exh PC.
PW-2 Muhammad Ashraf Moharrir 1088/HC being Moharrir of the police station kept the case property of this case in Malkhana in safe custody and then transmitted the same to the concerned offices intact.
PW-3 Muhammad Nawaz ASI chalked out formal FIR Exh PD/1 on the basis of complaint Exh PD.
PW-4 Riaz Ahmad 1014/HC escorted the dead body of wail Muhammad deceased to the mortuary DHQ Hospital Okara and after post mortem examination he produced last worn clothe of the deceased before the I.O who took the same into possession vide memo Exh PE.
PW-5 Abdul Sattar F.C. No. 587 took sealed parcel of blood stained earth and deposited in the office of Chemical Examiner intact.
PW-6 Haji Yar Muhammad is complainant of this case who reiterated the same facts as mentioned by him in his statement as well as in his complaint.
PW-7 Zain Kayani son of Idrees Kayani is the alleged eye witness who corroborated the statement of complainant.
PW-8 Abdul Latif son of Muhammad Ismail is also the alleged eye witness of the occurrence who deposed in support of the complainant. He is also witness of recovery memos Exh PE & Exh PF.
PW-9 Saeed Nasir Hussain Mirza draftsman prepared scale site plan Exh PG and Exh PG/1 of the place of occurrence.
PW-10 Muhamad Yaseen S.I is the I/O of this case who deposed regarding the steps taken by him during the investigation of this case.
PW-11 Muhammad Yar F.C. No. 203 witnessed the recovery of knife P-4 i.e. Weapon of offence which was taken into possession by the IO vide memo Exh PH.
PW-12 Muhammad Ishaq Inspector was also the I.O of this case who deposed regarding the steps taken by him during the investigation of this case.
PW-13 Dr. Ishtiaq Ali SMO DHQ Hospital Okara initially medically examined Raja Wali Muhammad injured and found following injuries on his person: -
1. An incised wound 2 cm 1 cm into muscle deep front of left shoulder.
2. An incised wound 2 cm x % cm (2 cm below injury No.1) An incised wound 2 cm x 1 cm on the left side of neck deep going.
3. An incised wound 2 cm x % cm on the left cheek the wound was muscle deep.
4. An incised wound 3 % cm x % cm on the middle of left ear. The wound was muscle deep.
5. An incised wound 2 % cm x % cm into scalp deep on the left side of head (5 % cm above left ear)
Probable duration of injuries was within half hour. He issued medicolegal report No. 405/06 Exh PL.
PW-14 Muhammad Arif 307/C received sealed parcel of blood stained knife from the Moharrir and deposited the same in the office of Chemical Examiner Lahore intact.
5. PWs Muhammad Sarwar, Raja Nasrullah, Nadeem Asif and Muhammad Arsal were given up by the prosecution being unnecessary and after tendering certain reports closed the prosecution case.
6. On the other hand, statement of the appellant was recorded under section 342 Cr.P.C. Who refuted the allegations so leveled against him. He neither opted to appear as witness under section 340(2) Cr.P.C. Nor produced any defence evidence. In reply to question No. 5 "Why this case against you and why the PWS deposed against you? The appellant Muhammad Shahid replied as under: - "The occurrence was un-seen and unwitnessed. The deceased had enmity with many persons. He was killed by unknown assailants. The so-called complainant and Asif Nadeem, Zain PWs have been called from Rawalpindi/ Islamabad after the occurrence. There was no natural witness. PW Abdul Latif who has a previous enmity with me due to the last local bodies election, PW Abdul Latif was contesting candidate for the seat of General Councilor, one Sikandar was also contesting candidate for the seat of General Councillor, I and my family (Brothery) used to support the above Sikandar, during the course of election many time PW Abdul Latif stopped us not to support Sikandar against him, otherwise you have to face dire consequences of the campaign. In this way, he was grudge against me, he was the lessee of the deceased. After the occurrence Abdul Latif PW summoned complainant and PWs from Rawalpindi/Islamabad and on his instance I have been involved in this false case with two un-known culprits. There is a delay of 15/16 hours for making a false and fabricated story, when I came to know about the registration of case against me alongwith 2 un-known culprits I myself joined the investigation but the I.O falsely challaned me in connivance with the complainant party in this false case. A false motive has been set up by the complainant party in connivance with the police. PWs are related and inimical witnesses, so they have deposed falsely against me. I am innocent in this case."
7. After conclusion of the trial, learned trial court convicted Muhammad Shahid, the present appellant, with above stated sentence through judgment dated 27.02.2008. Hence, this appeal and criminal revision.
8. It is contended by learned counsel for the appellant that the case against the appellant is false; that it was an un-seen occurrence; that the PWs are chance witnesses who were resident of from a far distance i.e. Rawalpindi and have not afforded any plausible explanation for their presence at the relevant time at the place of occurrence; that the conduct of the PWs who are close relative of the deceased is un-natural; that recovery was planted against the appellant and is of no help to the prosecution; that the evidence produced by the prosecution is contradictory and is not worth of reliance; that the judgment passed by the learned trial court is result of non-reading and misreading of evidence available on the file and as such is not sustainable in the eyes of law. Lastly prayed for the acceptance of the appeal filed by the appellant and for his acquittal from the charge.
9. Conversely learned Deputy Prosecutor General assisted by learned counsel for the complainant has vehemently controverted the arguments advanced by learned counsel for the appellant while maintaining that the appellant is specifically nominated in the FIR with specific role of giving repeated blow with knife on the person of the deceased; that by producing consistency, trust worthy and reliable evidence the prosecution has successfully proved its case against the appellant; that the judgment passed by the learned trial court is based on thorough evaluation of the evidence available on the file and does not call for any interference by this court. Lastly prayed for the dismissal of the appeal filed by the appellant and for enhancing the sentence from life imprisonment to capital punishment i.e. Death sentence.
10. We have heard the arguments advanced by the learned counsel for the parties and perused the record.
11. The details of prosecution story, as set-forth in FIR (Exh PD/1) has already been given in the preceding paragraphs of this judgment, therefore, there is no need to repeat the same, however, the occurrence in the instant case took place on 22.03.2006 at 08.25 P.M. Whereas the matter was reported to the police on 24.06.2003 at 12.05 in the day time at the Police station which is situated at a distance of 09 k.m. From the place of occurrence. Initially the FIR was lodged under section 324/452/34 PPC in which it has been specifically claimed by the complainant and PWs that they were present at the time and place of occurrence and witnessed the same and also carried/shifted the injured Wali Muhammad (real brother of the complainant) to D.H.Q. Hospital Okara where the injured /deceased was medically examined by the Medical Officer and after that he was referred to Jinnah Hospital Lahore, but perusal of initial medicolegal certificate issued in respect of injured Wali Muhammad/deceased produced before the court as Exh PL dated 23.03.2006 reveals that the injured was produced before the Medical Officer by one Muhammad Ashraf of Police Station Saddar Okara. Presence of complainant and other PWs has not been shown at the time of issuance of medicolegal report, therefore, to our mind the delay in lodging of FIR has not been explained and it is clear that the matter was reported to the police after due deliberation and consultation.
12. In order to prove the ocular account, the prosecution produced complainant Haji Yar Muhammad PW-6 who appeared before the court and reiterated the same facts as mentioned in complaint Exh PD, however, during cross examination he admitted that Asif PW is nephew and Zain PW is his Nawasa whereas deceased Wali Muhammad was his real brother and Latif PW was the tenant of his deceased brother. He further admitted that he was literate. Exh PD was got dictated by him. He further deposed that he did not remember the name of person who drafted Exh PD. He further admitted it as correct that Exh PD on the first line date is mentioned as 22.03.2006. This PW further mentioned that he got recorded in Exh PD that he, Nadeem, Asif and Zain were present in the adjacent room of his deceased brother. This portion of his statement was duly confronted with Exh PD where it was not so recoded. He further stated that he mentioned in Exh PD the word knife but this portion of his statement was also duly confronted with Exh PD where it was not so recorded.
This PW further admitted that he, Zain and Asif PW are the residents of Rawalpindi city. Admittedly the place of occurrence is situated within the jurisdiction of Police Station Saddar Okara and the place of resident of PW is more than 300 k.m. Away from the place of occurrence and no plausible explanation has been afforded by them of their being present at the place of occurrence. The only reason mentioned for their being present at the time of occurrence is that they only came to see their brother but the purpose of visit or any specific task for being presence has not been mentioned and it has specifically claimed by PW-6 that he alongwith other PWs witnessed the occurrence and he carried his injured brother to the hospital immediately after the occurrence in a car alongwith other PWs but surprisingly name of none of the PW including the complainant is mentioned in initial MLC Exh PL issued by Dr. Ishtiaq Ali PW-13, where in the specific column it is mentioned that the injured was brought to the hospital by one Muhammad Ashraf of Police Station Saddar Okara. Further it has been observed that many dishonest improvements were made by this PW while recording his evidence before the court. It is settled principle of law that one improves his statement from the previous one, losses his credibility. Thus to our mind this PW is a chance witness and his presence at the time and place of occurrence is highly doubtful.
13. To corroborate the version of the complainant Zain Kayani appeared before the court as PW-7 and reiterated the same facts as mentioned by him in his statement under section 161 Cr.P.C. Got recorded by the police. He while making his examination in chief before the trial court deposed in the following terms: - "Wali Muhammad deceased was first taken to DHQ Hospital Okara and then he was referred to Jinnah Hospital Lahore by the doctors of DHQ Hospital Okara. On 25.03.2006 deceased succumbed to the injured at Jinnah Hospital Lahore."
It is clear from the above deposition that neither he accompanied the deceased (the then injured) to the hospital nor he was with the PWs while the deceased was carried to Jinnah Hospital Lahore.
This is a clear contradiction with the statement made by complainant PW-6. During the cross examination PW-7 stated that he got recorded in his statement that he alongwith Yar Muhammad, Nadeem and Asif were present in the adjacent room of Wali Muhammad but this portion of his statement was duly confronted with his previous statement Exh DA wherein adjacent room is not mentioned. He further stated that he got recorded in his statement that the accused inflicted injuries to the deceased with dagger but this portion was confronted where the same is not mentioned. PW-7 (Zain Kiani) also admitted that he was also resident of Rawalpindi but not a single word or reasonable explanation has been given by this PW for his presence at the relevant time and place of occurrence. It is also not disputed that this PW is permanent resident of Rawalpindi which is 100 of miles away from the place of occurrence. According to the statement made by PW-7 (Zain Kiani) his conduct is very un-natural as he has not mentioned even a single word that as to why he did not accompany the deceased for medical examination, who is his close relative, to the hospital, thus in the absence of any solid reasons, his presence may be held to be a chance witness as at the fateful time he was residing several miles away from the crime.
14. To further corroborate the statements PW-6 & PW-7 Abdul Latif PW-8 appeared before the court and almost reiterated the same facts as mentioned by him in his statement got recoded under section 161 Cr.P.C. However, during cross examination PW-8 categorically admitted as follows: - "I was present in the hospital when first aid was given to Wali Muhammad. I remained there with Wali Muhammad in the hospital for about 30/45 minutes."
But surprisingly the name of this PW is also nowhere mentioned in the specific column of MLC issued in respect of deceased, the then injured by the Medical Officer. Further it has also been admitted that this PW was a lessee of the deceased and had very close relation with the deceased.
He has also contradicted on many points with PW-6 & PW-7. Thus to our mind the deposition made by PW-6, PW-7 & PW-8 is highly doubtful and unnatural and they are chance witnesses, therefore, their testimony is not worth of credence and reliance. Reliance is placed on the case of "Mst.
SUGHRAN BEGUM and another versus QAISER PERVEZ and others" (2015 SCM R 1142) wherein their lordship were placed to hold at page No. 1149 as follows: - "A chance witness, in legal parlance is the one who claims that he was present on the crime spot at the fateful time, albeit, his presence there was a sheer chance as in the ordinary course of business, place of residence and normal course of events, he was not supposed to be present on the spot but at the place where he resides, carries on business or runs day to day life affairs. It is in this context that the testimony of chance witness, ordinarily, is not accepted unless justifiable reasons are shown to establish his presence at the crime scene at the relevant time. In normal course, the presumption under the law would operate about his absence from the crime spot. True that in rare cases, the testimony of chance witness may be relied upon, provided some convincing explanations appealing to prudent mind for his presence on the crime spot are put forth, when the occurrence took place otherwise, his testimony would fall within the category of suspect evidence and cannot be accepted without a pinch of salt."
Further it was held by the Apex court in paragraph No. 15 of the above said judgment as follows: - "Intriguingly the Medico-legal Report was suppressed from the Court however, the original register was requisitioned, which was produced by the record-keeper of the hospital, showing that the name of deceased, (then injured), along was mentioned without parentage and address including other particulars. Not because the Medico-legal officer, Dr. Muhammad Ashraf has stated so but it is an invariable practice, that whoever brings an injured to the hospital, whether relative or friend, his name and particulars are mentioned in a specific column, meant therefore but in this case none of the two P.Ws. i.e. The complainant and Muhammad Saleem were cited as companions of the deceased, then injured. Even in the inquest report, prepared at the time of occurrence the FIR, the two identifying witnesses shown are, (i) Raja Nasir Aziz of Civil Lines and (ii) Malik Mumraiz resident of 30 RA Bazar, Rawalpindi. This glaring omission casts serious doubts about the presence of two self-proclaimed eye-witnesses at the spot."
16. As far as the motive is concerned, except complainant PW-6 no other PW uttered a single word about the motive as alleged in the FIR, therefore, to our mind the motive as claimed by the prosecution does not sufficiently stands proved. Even otherwise the learned trial court has also observed that weakness of motive would not come in the way of prosecution in presence of strong and reliable evidence. It is well settled by now that once a specific motive is taken by the prosecution then it is the duty of the prosecution to prove the same by strong and overwhelming evidence but the same in the instant case is missing. Only evidence of PW-6 regarding the motive is not of any help to the prosecution, therefore, the same stands disbelieve.
17. Coming towards the medical evidence, initially the deceased, the then injured, was medically examined by Dr. Ishtiaq Ali SMO DHQ Hospital Okara (PW-13) and according to medico-legal report Exh PL issued by this PW the injured was brought to hospital by one Muhammad Ashraf of P.S. Saddar Okara but surprisingly neither the said PW was cited in the calendar of witness nor he was produced by the prosecution which casted some serious doubt on the prosecution story. Even otherwise the medical officer during the cross examination had categorically replied in a question put to him by the defence in the following manner:- "At that time the injured Wali Muhammad was conscious."
But he never made any statement before any one i.e. Before the doctor or before the aforementioned Muhammad Ashraf and he never mentioned that the present appellant is responsible for the offence. Even otherwise the medical evidence is only a corroborative piece of evidence and it can only corroborate the time and nature of weapon used in the crime but it cannot point towards the assailants.
18. As for as the recovery of weapon of offence is concerned, the same was effected on 14.04.2006.
Perusal of recovery memo relating to blood stained knife reveals that the same was recovered from the chaff after about 22 days of the occurrence not wrapped in any polythene or other bag.
To our mind if any blood was present on the same, the same would have almost intergraded during the intervening period. Even otherwise no person from the locality has been associated in the recovery proceedings besides the facts that the house of the accused is situated in a populated thickly area. Further it has been observed that the recovery was effected on 14.04.2006 but perusal of report of chemical examiner Exh PM reveals that the same was dispatched and received in the office of chemical examiner on 05.05.2016. No explanation has been afforded by the I.O. For retaining the parcel for such a long time with him. Thus to our mind recovery effected on the pointation of the accused is highly doubtful and reports Exh PM, Exh PN and that of serologist Exh PP & PQ appeared to be maneuvered documents. As such the recovery of weapon of offence is hereby discarded.
19. On the other hand, the stance taken by the appellant while recording his statement under section 342 Cr.P.C. Seems more plausible and appeals to a prudent mind, thus the same is worth of reliance and credence.
20. From the above mentioned facts and circumstances it is clear that there are so many discrepancies and contradictions/improvements made by the PWs and it is observed that the evidence produced by the prosecution to the extent of appellant is stuffed with many discrepancies, lacking confidence inspiring substance evidence qua the appellant and this golden principle of criminal jurisprudence that a slightest doubt would favour the accused. Reliance is placed on the case titled as "Muhammad Akram vs. The state" (2009 SCMR 230) wherein their lordship were pleased to hold as follow: - "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."
21. Reliance is also placed on the case of "AYUB MASIH versus THE STATE" (PLD 2000 Supreme Court 1048) wherein their lordship were pleased to hold as follows: - "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 as of right. 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 him. The doubt of course must be reasonable and not imaginary or artificial. 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. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". In simple words it means that utmost care should be taken by the Court in convicting an accused. It was held in The State v. Mushtaq Ahmad (PLD 1973 SC 418) that this rule is antithesis of haphazard approach or reaching a fitful decision in a case. It will not be out of place to mention here that this rule occupies a pivotal place in the Islamic law and is enforced rigorously in view of the saying of the Holy Prophet (P.B.U.H.) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent."
22. For the reasons recorded above it is held that the prosecution remained unable to prove the charge against the appellant Muhammad Shahid, thus criminal appeal bearing No. 99-J of 2008 filed by appellant Muhammad Shahid in criminal case FIR No.149/206 dated 24.03.2006 under sections 452/302/34 PPC registered at Police Station Saddar Okara is allowed and the appellant Muhammad Shahid is acquitted of the charge. He shall be released forthwith if not required in any criminal case or proceedings whereas criminal revision bearing No. 171 of 2008 stands dismissed.