' ABDUL SAMI KHAN,Through this Appeal under section 410, Cr.P.C. Saed Rasool, Ulfat Rasool, Sibt- eRasool and Abdul Qayyum appellants have called in question the judgment dated 30-6-2009 handed down by the learned Additional Sessions Judge, Gujar Khan, District Rawalpindi wherein the appellants were convicted under section 302(b), P.P.C. For committing the murder of Muhammad Imtiaz deceased and were sentenced to imprisonment for life. They were also ordered to pay compensation of Rs,50,000 each to the heirs of the deceased under section 544-A, Cr.P.C.
Benefit of section 382-B, Cr.P.C. Was extended in favour of the appellants. The appellants' have challenged their conviction and sentence before this Court through the instant criminal appeal, while Mst. Shamim Akhtar, widow of Muhammad Imtiaz deceased, has filed Criminal Revision No,149 of 2009 for enhancement of the sentences awarded to the appellants.
2. According to the prosecution story set forth in the FIR the complainant is resident of Mauza Bhatiyan. On 18-102004, he along with his son Tariq Mehmood and brother Muhammad Imtiaz were returning to the residence of Muhammad Imtiaz after appearing in the Court at Gujar Khan, at about 02:00 p.m. When they reached in front of Al-Habib Traders, the accused Saed Rasool, Ulfat Rasool, Sibt-e-Rasool and Abdul Qayyum all equipped with "dandas" came in front of them. Saed Rasool raised "Ialkara" to teach a lesson for litigation, upon which Sibt-eRasool gave a danda blow to Muhammad Imtiaz at left side of his forehead. Ulfat Rasool gave danda blow to Muhammad Imtiaz which hit him near his left eye. Saed Rasool inflicted danda blow hitting Muhammad Imtiaz at the back of his head, as a result of which he fell down on earth and then Abdul Qayyum inflicted danda blow to Muhammad Imtiaz, hitting him on his left knee. In the meantime, Jameel Ali (given up P.W.) also emerged there and on their hue and cry, the accused fled away along with their weapons of offence. Muhammad Imtiaz injured succumbed to the injuries at the spot. The motive set up in the FIR is previous civil and criminal litigation between the parties. Upon the statement made by the complainant the police registered formal FIR No,517/04, dated 18-10-2004 for an offence under section 302, P.P.C. Read with section 34, P.P.C. At Police Station Gujar Khan, District Rawalpindi. The investigation in this case was conducted by Liaquat All S.I. Who inspected the place of occurrence; prepared application for postmortem examination of the deceased Exh.PK and inquest report Exh.PL. He prepared rough site-plan Exh.PM; secured blood-stained earth from the place of occurrence vide recovery memo Exh.PA. He arrested the appellants and got recovered dandaz P-7, P-8 and P-9 from Sibt-e-Rasool, Ulfat Rasool and Abdul Qayyum appellants respectively. He recorded the statements of the prosecution witnesses under section 161, Cr.P.C.
Afterwards the investigation of the case was transferred to Muhammad Ashraf Inspector and after completion of the "investigation, the investigating officer submitted report under section 173, Cr.P.C.
Before the learned trial court. Charge was framed against the accused on 1-6-2005, to which they pleaded not guilty and claimed trial.
3. The prosecution in order to prove its case examined as many as twelve witnesses before the learned trial court. The ocular account in this case has been furnished by Ghulam Murtaza complainant (P.W.7) and Tariq Mehmood eye-witness (P.W.8). Ghulam Murtaza complainant (P.W.7) also stated about the recovery of weapons of offence at the instant of Sibt-eRasool, Ulfat Rasool and Abdul Qayyum appellants. Muhammad Ashraf Inspector and Liaquat All Sub-Inspector appeared before the learned trial court as P.W.10 and P.W.11 respective. They investigated the case in hand and stated about various steps taken by them during the investigation of this case. The medical evidence in this case was furnished by Dr. Mushtaq Ahmad (P.W.9). On 18-10-2004, he conducted the postmortem examination on the deadbody of Muhammad Imtiaz son of Muhammad Sarwar and found the following injuries on his person:--
(1) Lacerated wound above and lateral to left eye measuring 3 x 1 cm.
(2) lacerated wound 2cm forehead left side.
(3) both eyes were black.
(4) bleeding from nose was present.
(5) Bleeding from left ear,
(6) lacerated wound 1 x 1 cm upper part of nose.
(7) lacerated wound on back and left side head measuring 5x1 cm.
(8) abrasion 5 x 2.5 cm on left knee.
(9) bruises 13 x 3 cm below and lateral to left knee.
(10) bruise 6 x 6 cm medial aspect of right knee.
(11) lacerated wound 0.5 cm on left elbow back.
(12) abrasion 2 x 2 cm upper part of left shoulder
(13) bruises 21 x 4cm lateral aspect of left thigh.
(14) abrasion 2 x 3 cm on back of chest in the area of right scapula.
(15) abrasion 3 x 0.5 cm on back mid line nape of neck.
(16) abrasion 1.5 x 1 cm on back of left shoulder.
' Rest of the witnesses produced by the prosecution are more or less the formal witnesses. After tendering in evidence, the reports of Chemical Examiner (Exh.PS, Exh.PT, Exh.PU and Exh.PV) and the reports of Serologist (Exh.P.W., Exh.PX, Exh.PY and Exh.PZ), the prosecution closed its evidence.
4. In their statements recorded under section 342, Cr.P.C. The appellants denied all the allegations levelled against them by the prosecution and professed theft' innocence. In response to a question that "why the case was got registered against you and why the prosecution witnesses depose against you?" Saed Rasool appellant replied as under:- "In fact deceased Imtiaz has enmity with many persons of the area, therefore he migrated from his village and took shelter in Gujar Khan city. It was a blind murder committed by some unknown person. The P. Ws. Were not present at that time and they were in their village. These so-called witnesses were summoned from their village by the police much after the occurrence and After due deliberation, consultation and inquiry, they were made false witnesses of the occurrence. These P. Ws. Have made dishonest, fatal improvements and their statements are full of contradictions. They never cared to abstain from telling lie even on admitted facts. Their evidence is not trustworthy and reliable. Furthermore P. W. 8 categorically admitted that he deposed falsely about reason of his presence stated in Examination-in-chief. Witnesses are inter se related as well as to deceased and inimical to the accused. The 1'. Ws. Have improved their version to bring it in conformity with medical evidence. Recoveries of Dandas were planted to strengthen false prosecution., case. Reports of Chemical Examiner and Serologist were obtained collusively. Despite alleged occurrence took place in the heart of city, but, none from public was produced to substantiate prosecution story. Material limbs of evidence were withheld without justification. Medical evidence belies the first prosecution version recorded in FIR and statements under section 161, Cr.P.C. In which only 4 injuries were attributed and during the whole investigation no supplementary statement was made about the infliction of remaining injuries: All the investigation is dishonest and based on mala fide. The version of accused was not probed in honestly. The accused have been implicated in this false case due to enmity. There is no independent corroboration. I was present in my village Bhattian at the time of alleged occurrence. I am innocent."
' The reply furnished by the remaining appellants to the above question was almost in line with that furnished by Saed Rasool appellant. The appellants did not make statements on oath under section 340(2), Cr.P.C., however, produced Khawaj a Fazal Karim as DW-1 in their defence.
5. Upon completion of the trial the learned trial court found the case against the appellants to have been proved beyond any reasonable doubt and convicted and sentenced them as mentioned above. Hence, this criminal appeal and criminal revision before this Court.
6. The learned counsel for the appellants contends that the judgment dated 30-6-2009 passed by the learned Additional Sessions Judge, Gujar Khan, District Rawalpindi is result of misreading and non-reading of evidence recorded by him; the presence of the complainant (P.W.7) and the eye- witness (P.W.8) at the spot is not proved at the relevant time as conduct showed by them thereat does not appeal to a prudent mind because both the eyewitnesses being close relatives of the deceased did not interfere at the time of occurrence and let loose the appellants to do away with the deceased; had the P.Ws. Been present at the place of occurrence they would have interfered in order to save the life of the deceased and as a matter of fact it was an unseen occurrence and the complainant as well as eye-witnesses reached at the place of occurrence after receiving information at a time when the occurrence had already taken place; the complainant and the eye-witness are related inter se as well as to the deceased and they have made false statements just to entangle the appellants in this false case; the statements of eye-witness account are full of contradictions; they have made material improvements in order to bring their testimony in line with the medical evidence, so they cannot be termed as trustworthy or reliable witnesses and as such the conviction and sentences of the appellants cannot be based on the statements of such Witnesses; according to the prosecution story the occurrence took place in a busy place but no independent person was produced by the complainant in this case; recoveries of weapons of offence, i,e, dandaz (P-7, P-8 and P-9) have been planted upon the appellants to strengthen the prosecution case and even otherwise there is glaring violation of section 103, Cr.P.C; the prosecution has miserably failed to prove its case against the appellant and it is golden principle of criminal jurisprudence that benefit of doubt, if any, has to be given to the appellant not as a matter of grace but as a matter of right; only one circumstance creating doubt is enough to break the chain of the prosecution tied around the neck of the appellants and the same is also sufficient to acquit the appellants of the charge but in this case the evidence adduced by the eyewitnesses is full of contradictions, thus, the conviction in not justified at all.
7. On the other hand the learned Deputy Prosecutor General assisted by learned counsel for the complainant contends that the appellants are nominated in the promptly lodged FIR with specific role of inflicting danda blows to the deceased; there is no enmity between the parties to falsely involve the appellants in this case; the parties were known to each other prior to the occurrence, so there was no chance of mistaken identity or substitution and even otherwise the appellants have failed to establish that why the complainant would let off the real culprits and falsely involve them in this case; the injuries attributed to the appellants are also borne out from the postmortem examination report of the deceased Muhammad Imtiaz; the medical evidence in this case had provided full corroboration to the ocular account furnished by the eyewitnesses; the prosecution witnesses had proved this case through cogent and confidence inspiring evidence and in spite of lengthy cross-examination by the defence they remained consistent on all material points; the prosecution has successfully proved its case against the appellants in shape of ocular account duly corroborated by the medical evidence and recovery of weapons of offence effected at the instance of Sibt-e-Rasool, Ulfat Rasool and Abdul Qayyum appellants. While arguing about . The criminal revision, learned counsel for the petitioner/complainant contends that the appellants had murdered an innocent person in a brutal manner, but while awarding sentence to the appellants, the learned trial Court took very lenient view without any lawful justification, therefore, the sentences awarded to the appellants require to be enhanced.
8. I have heard the learned counsel for the appellant, learned Deputy Prosecutor General and learned counsel for, the complainant and have also perused the entire record of this case with great care and caution. It has been observed by this Court that the occurrence in this case had taken place on 18-10-2004 at about 02:00 p.m. Within the area of Tehsil Road, Gujar. Khan situated at a distance of 200 yards from the Police Station Gujar Khan, District Rawalpindi and the same was reported by Ghulam Murtaza complainant (P.W.7) through Fard Biyan Exh.PD recorded by Liaqat Ali S.I. (P.W.11) on the same day at 02:45 pm. All these facts show that FIR in this case has not only been lodged with sufficient promptitude.
9. Before examining the ocular account, I would like to observe here that the case of Sibt-e-Rasool and Ulfat Rasool appellants is quite distinguishable from that his co-appellants namely Saed Rasool and Abdul Qayyum, so firstly, I would like to discuss the case of Sibt-e-Rasool and Ulfat Rasool appellants in the light of material available on the file of this case.
10. Sibt-e-Rasool and Ulfat Rasool appellants are named in the FIR, which was got lodged by Ghulam Murtaza complainant (P.W.7) within a span of fifty minutes of the occurrence. Perusal of the FIR further reflects that specific role of inflicting danda blow on the left side of forehead of Muhammad Imtiaz deceased has been attributed to Sibt-e-Rasool appellant while Ulfat Rasool appellant has been burdened with the role of inflicting danda blow near the left eye of Muhammad Imtiaz deceased. In order to prove these allegations, the prosecution examined Ghulam Murtaza complainant (P.W.7) and Tariq Mehmood (P.W.8) who both had sufficiently explained the mode and manner of the occurrence, place of occurrence locale of injuries sustained by the deceased at the hands of Sibt-e-Rasool and Ulfat Rasool appellants. So far as the argument of learned counsel, for the appellants that Ghulam Murtaza complainant (P.W.7) and Tariq Mehmood eye-witness (P.W.8) are interested witnesses is concerned, although the deceased was brother of the complainant P.W.7 and paternal uncle of P.W.8 yet mere relationship of the deceased with these two prosecution witnesses is not enough to discard their testimony especially when they both have no personal ill-will or malice against the appellants to falsely involve them in this case. In this regard reference can be made to the case of Muhammad Mansha v. The State (2001 SCM R 199).
The statements of Ghulam Murtaza complainant (P.W.7) and Tariq Mehmood eye-witness (P.W.8) on material points are consistent with each other to the extent of role played by Sibt-eRasool and Ulfat Rasool appellants. They have fully supported the prosecution version to the extent of Sibt-e- Rasool and Ulfat Rasool appellants. They were subjected to lengthy cross-examination by the defence but without extracting anything beneficial for Sibt-e-Rasool and Ulfat Rasool appellants.
Both the complainant and the eye-witness stood firm and their veracity could not be shaken to the extent of role played by Sibt-e-Rasool and Ulfat Rasool appellants. It was a broad daylight occurrence and admittedly, the parties to this case were known to each other, so there was no question of mistaken identity of the appellants in this case. Moreover it does not appeal to a prudent mind that a real brother would let off the real culprits who committed the murder of his brother and involve a false person. As regard to the contention of learned counsel for the appellants that no independent witness has supported the version of prosecution in spite of the fact that the occurrence took place at a busy place, it is phenomena in our society that the strangers usually hesitate to come forward and record testimony in such like cases in order to avoid future animosity with the accused party. The names of the eye-witnesses and role of Sibt-e- Rasool and Ulfat Rasool appellants of inflicting danda blows to the deceased have been mentioned in the first information report, which lend support from the medical evidence furnished by Dr. Mushtaq Ahmed Sahar (P.W.19) as the injuries attributed to these appellants were observed by the doctor to present on the dead body of the deceased at the time of his postmortem examination. According to the witnesses of ocular account, these injuries were caused by dandas, so the recovery of dandas P-7 and P-8 from Sibt-e-Rasool and Ulfat Rasool appellants respective has further strengthened the prosecution case. Nothing was extracted from the mouths of Ghulam Murtaza complainant (P.W.7) and Tariq Mehmood eye-witness (P.W.8) to create doubt regarding their presence at the spot, thus, their testimony to the extent of Sibt-e-Rasool and Ulfat Rasool appellants is confidence inspiring and ocular account to their extent stands proved.
11. In view of what has been discussed above, I am of the considered view that the learned trial court has rightly convicted and sentenced Sibt-e-Rasool and Ulfat Rasool appellants under section 302(b), P.P.C. And has already awarded them life imprisonment. To their extent, I do not find any good reason to differ with the judgment passed by learned trial court which is based upon proper appreciation of evidence available on the record and is in accordance with the principles of appreciation of evidence set down by Hon'ble Supreme Court. Of Pakistan in this regard, therefore, the conviction and sentence of imprisonment for life with the direction to pay Rs,50,000 each as compensation to the heirs of the deceased as envisaged under section 544-A, Cr.P.C. Passed against Sibte-Rasool and Ulfat Rasool appellants are upheld, however, in default to the payment of amount of compensation, they will have to further undergo six months S.I. Ulfat Rasool appellant is on bail. Copy of this judgment be sent to the learned trial Court to proceed with the matter in accordance with law regarding the custody of Ulfat Rasool appellant. This criminal appeal to the extent of Sibt-e-Rasool and Ulfat Rasool appellants is dismissed.
12. Now adverting to the case of remaining appellants i,e, Saed Rasool and Abdul Qayyum, although they are named in the FIR and specific roles have been assigned to them therein, however, the Apex Court of the country through number of judgments has laid down a golden principle of sifting the grain from the chaff in order to extract the exact culpability of each accused and to reach at the just decision of a case. In this regard, guidance can be sought from the cases of "Samano v. State" (1973 SCM R 162) and "Riaz Hussain v. The State" (2001 SCM R 177). By applying the above principle in the present case, I have observed that Saed Rasool appellant has been assigned the role of raising "lalkara" and inflicting danda blow on the backside of head of Muhammad Imtiaz deceased, however, during investigation of the case, the investigating officer found him not involved and not present at the spot at the time of occurrence. During investigation, the investigating officer failed to recover the weapon of offence i,e, danda from Saed Rasool appellant to corroborate the allegation levelled by the prosecution against him. Although the opinion of the investigating officer is not binding on the Courts of law, yet the same can be taken into consideration especially in the circumstances to be discussed herein under. The defence plea taken by Saed Rasool appellant finds support from the statement of Khawaja Fazal Karim (DW-1).
He has been involved by the complainant along with two real brothers i,e, Sibt-e-Rasool and Ulfat Rasool, which is common practice in our society. Apparently the complainant has spread the net wide to entangle maximum persons from the accused side for the murder of one person. It has also been observed that in murder cases, a trend has developed that complainant side use to entangle maximum persons from his rival group so that nobody would remain for pursuing the matter. So far as the case of Abdul Qayyum appellant is concerned, although he has been burdened with the role of inflicting danda blow on left knee of the deceased, but during postmortem examination on the dead body of Muhammad Imtiaz deceased, the injury attributed to Abdul Qayyum appellant could not be found. Although the doctor has observed abrasion on the left knee of the deceased, but the fact remains that the deceased fell on ground after receiving injuries at the hands of Sibt-eRasool and Ulfat Rasool appellants and possibility cannot be ruled out that he sustained this abrasion after falling on the ground. So far as the recovery of danda P-9 at the instance of Abdul Qayyum appellant and the report of Serologist in this regard is concerned, admittedly Abdul Qayyum did not repeat the blow, therefore, it does not appeal to a human mind as to how the danda P-9 was stained with blood. This fact has made the factum of recovery of alleged weapon of offence at the instance of Abdul Qayyum appellant doubtful and the same cannot be used against him.
13. From all the attending circumstances of this case and also from the discussion made by this Court in paragraph 12 above, it has become crystal clear that the complainant had spread the net wide and had involved Saed Rasool and Abdul Qayyum appellants in this case just to satisfy his vengeance. Implication of these appellants in this case is result of exaggeration on the part of the complainant. The case of the prosecution to the extent of Saed Rasool and Abdul Qayyum appellants is not free of doubts and their involvement in the commission of murder of Muhammad Imtiaz deceased is highly doubtful. It is settled law that not many circumstances in the prosecution story creating doubt against an accused are required rather a single circumstance creating doubt is enough for acquittal of the accused. It is also 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 v. The State (2009 SCM R 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)
14. 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 Saed Rasool and Abdul Qayyum appellants beyond any shadow of doubt, therefore, they are acquitted from the charge. Saed Rasool appellant is in jail. He shall be released from jail forthwith if not required in any other case. Abdul Qayyum appellant is on bail, his sureties stand discharged from the liability of surety bonds. The appeal to the extent of Saed Rasool and Abdul Qayyum appellants stands allowed.
15. In view of the discussion made in preceding paragraphs, Criminal Revision' No,149 of 2009 filed by Mst. Shamim Akhtar widow of Muhammad Imtiaz deceased for enhancing the sentences of appellants is also dismissed.