' MEHMOOD MAQBOOL BAJWA, J.---After conclusion of trial in case FIR No,570 of 2005 registered under sections 302, 324 read with section 34 of The Pakistan Penal Code, 1860, at police station Ghalla Mandi, Sahiwal the learned Sessions Judge, Sahiwal, vide judgment dated 14-7-2007, while recording conviction, under Section 302 (b). Of The Pakistan Penal Code, 1860, Mushtaq Masih and Shafique were awarded sentence of death and life imprisonment respectively besides payment of compensation to the tune of Rs,50,000 each to be reimbursed among the legal-heirs of the deceased.
Shafique was also convicted under Section 324 of The Pakistan Penal Code, 1860, and was awarded sentence of seven years' R.I. And fine in a sum of Rs,50,000 besides recording conviction against him under Section 337-D of The Pakistan Penal Code, 1860, and was awarded sentence of seven years' R.I. And payment of 'Arsh' 1/3 of Diyat amount. He was extended benefit of Section 382-B of The Code of Criminal Procedure, 1898.
2. Both the appellants have preferred appeal (Cr. A. No,289 of 2007) titled "Mushtaq Masih and another v. The State" which shall be decided by this judgment besides disposal of Murder Reference No,491 of 2007 for confirmation or otherwise of death sentence awarded to Mushtaq Masih, appellant.
3. Crime Report bearing No,570 of 2005 (Exh. PF) was lodged by Muhammad Asim (P.W.8) with the accusation that he as well his brothers are running leather factory, also residing in the same premises. Mushtaq Masih and Shafique (appellants) who were working in the factory took Rs,15,000 in advance who absented from duty and as such on 4-12-2005 at evening he along with his father, Maqbool Hussain (deceased) went to the native place of the appellants and asked them to return the amount of advance in case they are reluctant to continue with the job, resulting in exchange of hot words and extension of threats to them by both the appellants.
' At the night, his father Maqbool Hussain (deceased) and mother, Mst. Sardaran were sleeping in the room of house, adjacent to the factory, while he along with his brothers Muhammad Akbar (P.W.9) and Muhammad Azam (not produced) were sleeping in the room of the office, when after hearing report of noise, they woke up and saw both the appellants armed with pistol and Shafqat (since acquitted) empty handed. On the lalkara of Shafqat, Mushtaq and Shafique, started firing.
Shot fired by Mushtaq Masih (appellant) landed on the right side of chest of his father, Maqbool Hussain, while shot fired by co-appellant, Shafique, caused injuries on the left shoulder of their associate, Shafqat. Both the appellants managed to escape. Maqbool Hussain, succumbed to the injuries at the spot.
4. The appellants as well Shafqat Masih were put to face trial resulted in recording judgment of conviction against the appellants but in acquittal of Shafqat Masih.
5. Dr. Mahmood-ul-Hassan (P.W.3) conducted autopsy on the dead body on 6-12-2005 and 11:45 a.m. And noted following injuries: "INJURIES:
(1) Lacerated wound 1.5 cm x 1 cm with burnt inverted margins, deep going on back right shoulder.
Hole corresponding to injury was present on Kamiz (entry wound).
(2) Lacerated wound 4.5 cm x 1.5 cm with burnt everted margins on front of above left clavicle shoulder. Hole corresponding to injury was present on Kamiz (exit wound)".
' Probable time between injuries and death was about half an hour while lapsed between death and postmortem was about 13 hours. (Exh.PB) is the copy of postmortem report while pictorial diagram is (Exh. PB-1).
6. Dr. Abdul Khaliq (P.W.10) examined Shafqat Masih (since acquitted) on 5-12-2005 at 10:40 p.m.
And observed following injuries on his person: "INJURIES:-
(I) A firearm lacerated wound 1/2 cm x 1/2 cm deep going, with blackening on front outer upper part of left chest. Corresponding cut/hole on Kameez and Jersy was present. The patient was full conscious and having BP 100/70 and pulse 80 per minute".
' Copy of Medico-legal report is (Exh. PL).
7. Learned counsel for the appellants while referring to the ocular account, consisting of the statements of Muhammad Asim, complainant (P.W.8) and eye-witness, Muhammad Akbar (P.W.9) maintained that presence of both the witnesses at the spot is under serious cloud keeping in view the replies given in cross-examination. Submitted that even otherwise, their evidence does not inspire confidence in view of material contradictions. Referring to their statements, it was further argued that evidence of Muhammad Akbar (P.W.9) contradicts the medical evidence as well as contents of FIR (Exh.PF) with reference to locale of injuries sustained by the deceased. Submitting arguments with reference to motive, it was contended that neither same appeal to the reason nor could be established. Making reference to the time of postmortem and seeking help from the dictum laid down in Khalid alias Khalidi and 2 others v. The State" (2012 SCM R 327), it was submitted that delay of 13 hours in postmortem not explained, seriously reflects on the veracity of prosecution version. Adverting to the factum of recovery and positive report of firearm expert (Exh. PQ), it was submitted that empties were collected from the spot on 6-12-2005 but were sent on 31-12-2005, while, both the appellants were arrested on 21-12-2005 and recovery was allegedly carried out on 1-1-2006 which story was coined. Summing up the arguments, it was submitted that prosecution failed to prove its case against the appellants beyond shadow of doubt.
' On the other hand, learned Deputy Prosecutor General while referring to the evidence of Muhammad Asim, complainant (P.W.8) submitted that his evidence is sufficient to prove motive.
Making reference to the time of occurrence and lodging of FIR (Exh. PF), it was submitted that same was registered within 45 minutes, by itself proving the presence of the witnesses and veracity of prosecution version. Argued, that apprehension of Shafqat Masih (since acquitted) at the spot and his medical examination at 10:40 p.m. At the same night also substantiates the case of prosecution.
Making reference to the statements of the complainant (P.W.8) and eye-witness, Muhammad Akbar (P.W.9), it was contended that evidence of both the witnesses is natural, inspires confidence, could not be shaken in 'cross-examination, finding corroboration from the statement of Shafique Masih (since acquitted) under Section 342 of The Code of Criminal Procedure, 1898. Argued, that factum of recovery of pistols at the instance of appellants witnessed through recovery memos (Exh. PJ & PK) duly proved by Muhammad Akbar (P.W.9) and positive report of Forensic Science Laboratory (Exh.PQ) also provides confirmation to the ocular account besides medical evidence.
8. The complainant, Muhammad Asim (P.W.8) deposed that both the appellants were employed in their factory, who obtained Rs,15,000 as advance money, but later on left the job, due to which he and his father, Maqbool Hussain (deceased) went to the residence of appellants and asked them either to return the amount taken in advance or resume duty due to which altercation took place and the appellants extended threats, resulting in occurrence at the same night.
' Though factum of employment, receipt of advance amount was denied by both the appellants in their respective statements under section 342 of The Code of Criminal Procedure, 1898, but trend of cross-examination does not suggest any negation of motive asserted by the complainant. Rather suggestions were put to the complainant (P. W.8) and Muhammad Akbar, eye-witness (P.W.9) pleading false implication due to previous altercation. In view of the matter, motive stands established.
9. Ocular account led by prosecution comprises statements of Muhammad Asim, complainant (P.W.8) and eye-witness, Muhammad Akbar (P.W.9) who statedly were sleeping in the office of factory while the deceased and their mother were sleeping in the room of house just adjacent to the factory. According to both the witnesses, the appellants and acquitted accused while scaling over the wall entered in the house, followed by lalkara by Shafqat Masih (acquitted accused) and there upon firing by both the appellants. Both the witnesses further deposed that shot fired by Mushtaq Masih hit on the back of right side of his father's chest while fire made by Shafiq (co- appellant) landed on the left shoulder of their associate, Shafqat Masih.
Muhammad Akbar, an eye-witness (P.W.9) stated in cross-examination that at the spot, there were seven persons including his mother, Mst. Farzana, brothers Asim complainant (P.W.8), Azam, Arshad and Chaukidar, Waliat Muhammad. The later-mentioned person was still working with complainant party as admitted by the witness but strangely enough was not produced though independent person and that too without any justified reasons, resulting in drawing of adverse inference by us under Article 129(g) of The Qanun-e-Shahadat Order, 1984 (President Order No,10 of 1984).
' Though according to. Muhammad Akbar (P.W.9), his brother Arshad was also present at the place of occurrence at the time of firing but complainant (P.W.8) denied in, cross-examination that his said brother witnessed the occurrence. It is also interesting to note that according to the complainant, Afzal was also sleeping with him under the same roof but did not witness the occurrence.
' According to both the witnesses, they were sleeping in the office of factory and after hearing of noise attracted to the spot. If the complainant and his brother Muhammad Akbar (P.W.8 and P.W.9) can rush to the place of occurrence after hearing report of noise, why both Arshad and Afzal did not attract to the place of occurrence which' according to reply given by the complainant in cross- examination is at the distance of about 50-60 feet.
10. It is also the case of prosecution witnesses that their mother was also sleeping in the room, where his father was sleeping. However, presence of mother of the witnesses at the place is also doubtful in view of reply given in cross-examination by Javed Iqbal, Inspector (P.W.11) who stated that he saw only, one cot in all the four rooms of the house of the deceased.
11. All these facts have given credible impression to us that it was an un-seen occurrence and both the witnesses did not view the same.
12. Factum of presence of both the witnesses at the spot also can be examined from another angle as well. The complainant in cross-examination disclosed inter se distance as 50 to 60 feet between their place of sleeping and house in which occurrence took place. Zahid Ali, Draftsman (P.W.2) has shown the inter se distance of two points 66 feet in site plan (Exh.PA).
' It is the case of prosecution that the appellants by scaling over, the wall entered and the witnesses after hearing report of noise, rushed to the spot. It does not appeal to the mind that from the distance of 50 to 66 feet, the witnesses heard the report of noise which fact has to be appreciated keeping in view the intentional attempt by the appellants to conceal their identity who also cognizant of this fact come to the place of occurrence by scaling over the wall as per prosecution stance.
13. Promptly lodged First Information Report was heavily relied upon by the learned Deputy Prosecutor General while making attempt to controvert the arguments. No doubt lodging of FIR with promptness rules out the element of deliberation, false implication and prima facie evidence of presence of witnesses but in view of discussion made from different angles, factum of recording FIR after 45 minutes by itself would not be sufficient to controvert the conclusion drawn.
14. It is further to be noted that postmortem was conducted on 6-12-2005 at 11:45 a.m. Though occurrence took place at 10:30 p.m. On 5-12-2005. Delay of approximately 12 hours without any justified reasons gives an impression that FIR was not lodged at the time stated. Reliance is placed upon "Khalid alias Khalidi and 2 others v. The State" (2012 SCM R 327).
15. There is another important factor, casting doubt about the presence of complainant (P.W.8) at the spot, according to whom shot fired by Mushtaq Masih hit on the back of right side of chest of his father but in the crime report (Exh.PF), it finds mentioned that shot landed on the right side of chest "Chhati".
16. Viewed from whichever angle, presence of both the witnesses at the spot is under serious doubt and as such no implicit reliance can be placed upon it.
17. Reliance upon medical evidence by the prosecution would not advance the plea for two fold- reasons, Firstly, medical evidence cannot disclose identity of assailants and can only be used to prove the locale of injuries and nature of weapon of offence used. Secondly, the complainant himself is not sure about the locale of injury as discussed earlier who made improvement in his statement.
18. Factual of recovery of weapons of offence at the instance of appellants through memos (Exh.PJ & PK) on 1-1-2006, attested by Muhammad Akbar (P.W.9) and positive report of Firearm Expert (Exh.PQ) would also not prove the case of prosecution in view of sending crime-empties on 31-12- 2005 while appellants were arrested on 21-12-2005 by Javaid lqbal, Inspector (P.W.11). Though, it is the case of prosecution that recovery was carried out on 1-1-2006 but keeping in view the delay in sending empties and that too without any justification and after arrest of the appellants, no implicit reliance can be placed upon it.
' Even otherwise, factum of recovery by itself would not be sufficient to record conviction in the absence of ocular account. Reference is made to "Noor Muhammad v. The State and another"
(2010 SCM R 97).
19.. During arguments, great stress was laid down by the learned Deputy Prosecutor. General to the statement of Shafqat Masih (since acquitted) recorded under section 342 of The Code of Criminal Procedure, 1898, in which while admitting his presence at the spot along with appellants held them responsible for commission of occurrence and causing him injury.
' However, said statement would not prove the prosecution case by itself for manifold reasons.
' Firstly, in the absence of convincing ocular account which prosecution failed to adduce no implicit reliance can be placed upon it despite the fact that his presence at the spot being injured cannot be disputed.
' It is further to be noted that in the crime report no overt act was attributed to him and role of proverbial lalkara was assigned to him. Charge was framed against him attributing same role and sharing common intention being associate of the appellants which was denied. The witnesses of the prosecution were also cross-examined by the counsel engaged by him and appellants.
However, in his statement recorded under Section 342 of The Code of Criminal Procedure, 1898, while controverting the role of "lalkara" attributed to him, he while replying question No,7 categorically pleading his innocence stated as under:- "I am innocent. I was called by my co-accused Mushtaq and Shafique Masih for labour in the factory of the deceased. When we reached there, Mushtaq and Shafique trespassed the factory by scaling over the wall and bolt of the outer door of the factory from where I entered into the factory and asked to them for easing myself, when Mushtaq and Shafique Masih started firing.
Mushtaq Masih fired at Maqbool Hussain, deceased, and a fire shot of Shafique Masih hit me. The P. Ws. Have deposed correctly"
Again replying Question No, 8, he pleaded his innocence.
20. According to Article 43, of The Qanun-e-Shahadat Order, 1984 (President Order No,10 of 1984) confession of co-accused can be taken into consideration against co-accused as circumstantial evidence if the following conditions are fulfilled.
(1) Joint trial of more than one person;
(2) Joint trial is permissible by the law; and
(3) Joint trial is for the same offence or for its abetment or attempt.
' Though there was joint trial of the appellants and Shafqat Masih, permissible under law for the same offence in view of insertion of Section 34 of The Pakistan Penal Code, 1860, but admittedly, statement as re-produced cannot be said to be "confession" being exculpatory to his extent though implicating the appellants.
21. Even otherwise, stance taken by the acquitted accused implicating co-accused at the stage where it was made cannot be considered "Evidence" in view of his denial to the charge and cross- examining the witnesses of the prosecution.
22. Argument that there was no reasons for the complainant and witness (P.W.8 & P.W.9) to implicate the appellants falsely by itself would not be sufficient to prove prosecution case.
Suspicion, however, strong, cannot take the place of "proof". Reference may be made to "Yasin alias Ghulam Mustafa v. The State" (2008 SCM R 336) in which it has been held at page 340 as follows:- "It is well-settled law that suspicion, however strong it may be, by itself cannot take the place of proof. This view receives support from the following reported Judgments:-- Ghudgomal Gangaram and others v. State of Gujarat 1984 PSC 640 (sic)(ii) State of U.P. v. Krishna Gopal and another (1988 MLD 1501 (Sic) and, vigant Kumar and others v. State through Chief Ehtesab Commission, Islamabad and others PLD 2003 SC 56".
23. Viewed from whichever angle, the prosecution failed to prove its case against both the appellants beyond shadow of doubt.
There is little cavil with the proposition that in order to extend benefit of doubt, a single circumstance creating reasonable doubt would be sufficient to grant premium not as a matter of grace and concession but as a matter of right. Reference is made to "Tariq Pervez v. The State"
(1995 SCM R 1345), "Akhtar Ali and others v. The State" (2008 SCM R 6) and "Allah Bachaya and another v. The State" (PLD 2008 SC 349).
24. Epitome of above discussion is that while extending benefit of doubt, setting aside the judgment of conviction and sentence, both the appellants are hereby acquitted resulting in acceptance of appeal No,289 of 2007 titled "Mushtaq Masih and others v. The State". They be released forthwith, if not required in any other case.
25. Death sentence awarded to Musthaq Masih (appellant) is not confirmed. Murder Reference No,491 of 2007 is accordingly answered in the negative.