James Joseph, J: This single judgment shall dispose of Criminal Appeal No. 272-J of 2008 filed by Asad alias Asdu and Naseer son of Khan Bahadur appellants, Murder Reference No. 540 of 2009 sent by the learned trial Court for confirmation of the death sentence of appellant Asad or otherwise and Criminal Revision No. 774 of 2008 filed by Qurban Elahi complainant as all matters have arisen out of one and the same judgment dated 29.11.2008 passed by learned Additional Sessions Judge, Sheikhupura in private complaint case under section 302/148/149 PPC Police Station Narang, District Sheikhupura outcome of case FIR No. 486/2000 dated 31.12.2000 registered under section 302/148/149 PPC at Police Station Narang District Sheikhupura.
02. Brief facts as enunciated in private complaint (Exh PA) filed by complainant Qurban Elahi are that on 31.12.2000 at 10.45 a.m. The complainant along with his brothers Irfan Elahi, Sohaib Elahi and his cousin Muhammad Boota son of Chiragh Din, Muhammad Asif son of Siddique, Shakeel Ahmad, Sajjid Najeeb were proceeding towards grain market for selling paddy. Muhammad Boota was driving the tractor while Irfan Elahi, Sohaib Elahi, Muhammad Asif, Shakeel Ahmad and Sajid Majeed boarded on the trolly. When they reached at a short distance from village, Asad alias Asdu, Shakeel Ahmad, Naeem, armed with Kalashnikov, Naeem son of Aslam armed with 12 bore gun, Naseer son of Muhammad Malik armed with fire arm weapon. Rizwan alias Murrad armed with Kalashnikov, Irfan Hassan son of Sharif armed with Kalashnikov, Zahid Manzoor alias Zahoor armed with Kalashnikov, Nasir son of Abdul Rasheed armed with Kalashnikov while boarded on three motorcycles without numbers plate came out from the village. Complainant felt apprehension that on the pretext of compromise Shakeel Ahmad may not cause any harm, he along with Sajwar Hussain equipped with fire arms chased them on the motorcycle. When they reached near the bridge of B.R.B Canal, they saw Muhammad Hanif, Muhammad Sharif armed with Kalashnikov, Allah Ditta armed with 12 bore gun, Naseer Ahmad son of Rafique, Naseer, Shabbir, Ayyaz son of Khan Bahadur, Attique, Abdul Rasheed armed with Kalashnikov along with three unknown persons who were already ambushed there came on the Pattri of canal in the meanwhile person who were boarded on three motorcycles reached there and they all stopped the tractor. Molvi Abdul Rasheed, Muhammad Hanif, Allah Ditta, Muhammad Shabbir unanimously raised lalkaras and asked Irfan Elahi etc. To alight from the tractor trolly. Then above said accused persons forcibly alighted Muhammad Boota, Sohaib Elahi and Irfan Elahi while Muhammad Asif, Shakeel Ahmad, Sajid Majeed remained seated on the tractor. Naeem son of Muhammad Hanif made fire shot on Irfan which landed on his left arm. Rizwan made fire shot which landed on right shoulder of Irfan.
Sharif son of Malik made fire shot upon Irfan which hit on right side of his back. Irfan son of Sharif made fire shot which landed on his left kuhla, Ayyaz son of Khan Bahadur made a fire shot which landed on left thigh of Irfan. Naseer son of Malik made fire which hit on the left eye brow of Irfan Elahi who fell down on the ground. Zahid made fire with Kalashnikov which landed on right flank of Muhammad Boota. Naseer son of Rafique made fire shot which landed on right arm of Muhammad Boota who fell down on the ground. During this period Nasir, Asad alias Asdu made firing with their respective weapons which landed on left cheek and under the left ear of Sohaib Elahi. Hanif made fire which hit on buttock of Sohaib Elahi. Attique made fire shot which landed on right thigh of Sohaib Elahi. Sharif son of Ghulam Hassan made fire hitting his back side of his left shoulder. Allah Ditta and Naeem made fire shorts which landed on left leg lower part and foot of Sohaib. The accused persons resorted firing towards complainant and Sajwar but they did not receive any fire shot. Muhammad Boota, Sohaib Elahi and Irfan succumbed to the injuries at the spot. Motive behind the occurrence was that brother of Shakeel accused namely Shabbir was murdered and in this murder trial Irfan brother of accused was sentenced to death but one month prior Shakeel started to patch up the matter with the complainant party and by deceiving the complainant party murdered Muhammad Boota, Sohaib Elahi and Irfan Elahi, hence, this complaint.
03. After recording cursory evidence, the accused persons, were summoned by the learned trial court to face the trial. Learned trial Court, after observing all legal formalities provided under the Criminal Procedure Code, framed the charge on 07.03.2003 under section 302/148/149 PPC to which they pleaded not guilty and claimed trial, hence the prosecution evidence was summoned.
04. In order to bring home the guilt of the accused persons, the prosecution examined 12 PWs in total, gist of the prosecution evidence is as under: - PW-1 Qurban Elahi complainant reiterated the contents of complaint Exh PA.
PW-2 Muhammad Asif being an eye witness of the occurrence corroborated the statement of complainant. He also witnessed the recovery of blood stained earth taken into possession by the IO vide memo Exh PB.
PW-3 Shakeel Ahmad another eye witness of the occurrence also corroborated the statement of complainant. He also witnessed the recovery of blood stained earth taken into possession by the IO vide memos Exh PB, Exh PC & Exh PD.
PW-4 Doctor Muhammad Iqbal Medical Officer conducted post mortem examination upon the dead body of Sohaib Elahi son of Muhammad Tufail and found the following injuries on his person: -
1. Lacerated wound 0.8 cm x .8 cm with colour of abrasion, inverted margins on left check (entry wound) fractured left cheek bone.
2. Lacerated wound 8 x 8 cm with colour of abrasion inverted margins, on left side of face, 1 cm in front of lower end of left ear.
3. Lacerated wound 6 cm x 5 cm on right cheek with everted margins. Fractured right cheek bone.
(Exit wound). Injuries No.1 & 3 communicated with each other after fracturing hard palate.
4. Lacerated wound 1 cm x z cm inverted margins, with colour of abrasion was on front of right chest, 5 cm below an inner to right nipple, holes on clothes were present (entry wounds).
5. Lacerated wound 2-1/2 x 1 cm x inverted margins with colour of abrasions on upper outer back of left chest/oblique hole on cloth was present (entry wound).
6. Lacerated wound 5-1/2 x 2 z cm with everted margins on back upper part of left chest.
7. Lacerated wound 2-1/2 cm x 1 cm everted margins on upper part of back of right chest, hole on cloth was present. This injury communicated through muscle to injury No.2.
8. Lacerated wound z cm x z cm everted margins on lower inner part of left buttock 1 cm away from mid line (exit wound). A small metallic piece is found in muscles under it. Hole on right front chest for injury No.4. Entry wound communicated through passage as injury No.4.
9. Lacerated wound 3 cm x 1 cm everted margins, oblique on back inner and upper part of right thigh, exit wound. Hole on clothes was present.
According to his opinion the injuries were ante-mortem in nature caused by fire arm. Injuries No. 2 to 4 were sufficient to cause death in ordinary course of nature resulting haemorrhage shock and death. Probable time that elapsed between death and post mortem was 18 to 36 hours.
PW-5 Munawar Hussain Constable along with Abdul Majeed escorted the dead bodies of Muhammad Boota, Irfan Elahi and Sohaib Elahi to the mortuary for post mortem examination and after the post mortem examination he produced the last worn clothes of deceased persons which were taken into possession by the IO vide memos Exh PF and Exh PG.
PW-6 Arif Hussain witnessed the recovery of crime empties taken into possession by the IO vide memo Exh PI, recovery of rifle from Naseer Ahmad son of Khan Bahadur accused vide memo Exh PJ.
PW-7 Abdul Majeed identified the dead bodies of Irfan Elahi, Sohaib Elahi and Muhammad Boota deceased at the time of autopsy before the Medical Officer.
PW-8 Doctor Noor-ul-Haq Medical Officer conducted the post mortem examination on the dead body of Muhammad Boota and found the following injuries: -
1. A lacerated wound 3/4 x 3/4 cm with inverted margins on the outer front of right upper arm (entry wound).
2. A lacerated wound 1 x 1 cm on the inner surface of right upper arm. Margins were everted (exit wound) Injuries No.1 & 2 co-inside through muscles inner to the bone.
3. A lacerated wound 1- 1/4 cm x 1 cm with inverted margins on the lower area of right lateral side of chest.
4. A lacerated wound of 1-1/2 x 1-1/2 cm with everted margins on the upper area of left buttock.
According to his opinion death in this case was occurred due to haemorrhage and shock due to injury No.2. Probable duration between injuries and death with within half hour and between death and post mortem was 12 to 36 hours. Elahi son of Muhammad Sarwar and found the following injuries: -
1. Lacerated wound 1-1/2 x 1 cm on the inner side of left eye brow. Margins were inverted.
2. A lacerated wound 3 x 3 cm with everted margins on the right side of fore head.
3. A lacerated wound 1 x 1 cm on the inner front of right elbow. Margins were inverted.
4. A lacerated wound 08 cm x 8 cm on the outer side of top of right shoulder. Margins were everted.
5. A lacerated wound 3-1/2 x 2 cm with inverted and abraded margins on lower front of left chest, 3 cm from the mid line.
6. A lacerated wound 2-1/2 x 2 cm with everted margins on the back of lower part of right chest, 7 cm from mid line.
7. A lacerated wound 08 cm x 08 cm with inverted edges on the interolateral area of left hip.
8. A lacerated wound 4 cm x 4 cm with everted margins on the upper back of left hip (Buttock).
9. A lacerated wound 08 cm x 8 cm with inverted margins on the back of left fore arm, 6 cm below the elbow.
10. A lacerated wound 1 cm x 1 cm with everted margins on the inner side of front of left elbow.
11. A lacerated wound 1 cm x 1 cm on the outer back of upper left thigh, margins were inverted.
In his opinion death in this case had resulted from haemorrhage and shock and brain damage due to injuries No.1, 2, 5, 6, & 11 which were sufficient to cause death in ordinary course of nature.
PW-9 Shahbaz Ahmad ASI chalked out formal FIR Exh PM/1 on the basis of complaint Exh PM without any addition or omission.
PW-10 Inayat Khan Patwari prepared scale site plans of the place of occurrence Exh PN & Exh PN/1.
PW-11 Muhammad Saleem constable executed non bailable warrants of arrest as well as proclamations of the accused persons namely Naeem son of Khan Bahadur, Naseer son of Muhammad Rafique, Naseer son of Muhammad Malik, Naeem son of Muhammad Hanif, Rizwan son of Ali Ahmad, Irfan son of Muhammad Sharif, Zahid son of Manzoor, Nasir son of Abdul Rashid, Hanif son of Habib, Muhammad Sharif son of Ghulam Hussain, Allah Ditta son of Ghulam Bani, Shabbir son of Khan Bahadar, Ayyaz son of Khan Bahadar, Attique son of Aslam and Molvi Abdul Rashid son of Ghulam Hassan.
PW-12 Abdul Razzaq Inspector is the IO of this case who deposed regarding the steps taken by him during the investigation of this case.
The prosecution has given up PWS Sajid, Sajwar Hussain, Mujahid Hussain, Zaheer Ahmad, Altaf Hussain and Abdul Majeed 410/C being unnecessary while Muhammad Hanif PW due to his death and after tendering in evidence reports of chemical examiner regarding blood stained earth of deceased persons Exh PCCC, Exh PDDD and Exh PEEE and closed the prosecution evidence.
Thereafter following CWs were recorded.
CW-1 Liaqat Ali SI partially investigated this case.
CW-2 Imtiaz Ahmad Bhatti prepared incomplete challan against accused Naseer Ahmad son of Khan Bahadar and Naseer Ahmad son of Muhammad Rafique.
CW-3 Ghulam Qasim DSP also investigated this case who deposed regarding the steps taken by him during the investigation of this case.
CW-5 Zufarullah Khan S.I executed non-bailable warrants of arrest of PW.
CW-6 Nazir Ahmad S.I also executed non bailable warrant of arrest of Riaz Abbas S.I.
CW-7 Riaz Ahmad Inspector arrest accused Asad alias Asdu and Naseer son of Muhammad Malik and finalized the investigation to their extent.
05. Statements of the appellants were recorded under section 342 Cr.P.C. Who refuted the allegations so leveled against them. They neither opted to appear as a witness under section 340(2) Cr.P.C. Nor produce any defence evidence. In reply to question "Why this case against you and why the PWS deposed against you? The appellant Naseer son of Khan Bahadur replied as under: - "I have been implicated in this case falsely and due to malafide by the complainant with the connivance of local police. I have nothing to do with this occurrence. I also produced sufficient evidence before the police about my innocence and I was found innocent during investigation. I was not present at the time of occurrence at the place of occurrence. I have been roped in this false case through this private complaint at this belated stage. I am innocent. The PWs are related to the deceased, therefore, they deposed against me being inimical and interested."
06. While appellant/accused Asad alias Asdu while replying the same question deposed almost in the same wording which are reproduced as follows: - "I have been implicated in this case falsely and due to malafide by the complainant with the connivance of local police. I have nothing to do with this occurrence. I also produced sufficient evidence before the police about my innocence. I was not present at the time of occurrence at the place of occurrence. I have been roped in this false case through this private complaint at this belated stage. I am innocent. The PWs are related to the deceased, therefore, they deposed against me being inimical and interested."
07. After conclusion of the trial, learned trial court convicted Asad alias Asdu, Naseer Ahmad son of Khan Bahadur and Ayyaz son of Khan Bahadur under section 302(b) PPC. Asad alias Asdu was sentenced to death subject to confirmation by the August High court. Naseer Ahmad son of Khan Bahadur was convicted under section 302(b) PPC and awarded imprisonment for life for the murder of Sohaib Elahi while Ayyaz son of Khan Bahadur was awarded imprisonment for life for the murder of Irfan Elahi. All the convicts were also held liable to pay an amount of Rs. 50,000/- each u/s 544-A of Cr.P.C. In case of non-payment of compensation amount the convicts shall further undergo for six months S.I. Each. Hence, this appeal filed by Asad alias Asdu and Naseer appellant/convicts, revision petition and murder reference.
08. It is contended by learned counsel for the appellants that the evidence produced by the prosecution is full of contradictions and discrepancies; that no specific role against the appellants is levelled by the prosecution; that motive alleged by the prosecution was not proved; that the claim of the PWs is in conflict with the medical evidence; that nothing was recovered from the possession of the appellants; that the private complaint was lodged with an un-explained delay of about one year; that the judgment passed by the learned trial court is based on surmises and conjectures and is the result of mis reading and non-reading of evidence; that no specific injury is attributed to the appellants. Lastly, it is prayed that by accepting the appeal filed by the appellants, they may graciously be acquitted of the charge.
09. Conversely learned Deputy Prosecutor General assisted by learned counsel for the complainant has vehemently controverted the arguments advanced by learned counsel for the appellants while maintaining that by producing trust-worthy, convincing and reliable evidence the prosecution has successfully proved the charge against the appellants; that the judgment delivered by the learned trial court has been passed after thorough and proper evaluation of the evidence available on the file and is according to the settle principle of law, therefore, does not call for any interference; that it was a brutal murder in which three innocent persons lost their lives.
Lastly, prayed for the dismissal of the appeal filed by the appellants and acceptance of revision petition filed by the complainant for awarding death sentence to Naseer Ahmad and Ayyaz sons of Khan Bahadur as well as for the enhancement of compensation amount.
10. We have heard the arguments advanced by the learned counsel for the parties and perused the record.
11. The details of prosecution story has already been given in the preceding paragraphs of this judgment, therefore, there is no need to repeat the same, however, in order to prove the ocular account Qurban Ali PW-1 appeared before the court and reiterated the same facts as mentioned in private complaint Exh PA. His examination-in-chief was recorded before the court on 27.09.2005 and the cross examination was reserved. There-after at the time of cross examination it was brought into the notice of the court that the complainant has died in a road side accident, therefore, he could not be cross examined, hence, such statement which has not been put to the test of cross examination is of no help to the prosecution.
12. Muhammad Asif appeared as PW-2 before the court and reiterated almost the same facts as mentioned in complaint Exh PA, however, he categorically maintained that Naseer accused and Asad alias Asdu appellant made fire shots with their respective weapons which hit Sohaib Elahi on his left cheek and left ear whereas specific allegation against Naseer son of Khan Bahadur was that he fired a shot which hit Sohaib Elahi on his left buttock. During cross examination while answering a question put to PW-2 he replied in the following manner: - "I did not appear before the Police/I.O. In connection with investigation of this case."
He further replied that he is jobless after qualifying his M.A. Examination. In another question put to him from the defence side PW-2 replied in the following manner: - "I lived at Lahore since six months of the occurrence of this case."
He further replied in another question put to him from defence side as under: - "Before examination in-chief in this case my statement was not recorded in connection with this complaint".
PW-2 admitted that a criminal case under section 302/148/149 PPC was registered at Police Station Narang Mandi on the complaint of Muhammad Siddique regarding the murder of his son Akhtar Hussain against 28 persons including Muhammad Sharif accused of this case which was got registered by Ishtiaq alias Gullu complainant of that case. He further admitted it correct that Irfan accused of that case is his brother-in-law (Sala). It is correct that deceased Akhtar Hussain was real chachazad of Asad alias Asdu accused of this case. Asad alias Asdu and said complainant Muhammad Siddique were commonly doing agriculture and were having a common Havali. PW-2 further admitted that he had been residing in a house of his in-laws situated in Saeed Park Shahdara for six months after this occurrence and his marriage took place in 1997. However, he denied the suggestion that he had been living with his in laws since 1997. It is clear from the above mentioned deposition made by this PW:-
(i) That he did not specify the fire made by appellant Asad alias Asdu hit which part of the body of the deceased Sohaib Elahi.
(ii) He is not the resident of the locality where the occurrence took place and he has not afforded any plausible explanation of his being present at the place and time of occurrence.
(iii) Surprisingly as admitted by this PW that although his name is mentioned in the FIR as PW but he never joined the investigation after the registration of the case and never came forward to claim his presence at the relevant time.
(iv) He has categorically admitted that there was long standing enmity between the parties and he has also enmity with the appellant Asad alias Asdu as his brother-in-law (Sala) was the accused of murder of chachazad of appellant Asad alias Asdu.
13. This PW has materially contradicted regarding the role ascribed to Naseer appellant with the medical evidence as according to this PW, Naseer appellant caused a fire arm injury on the buttock of deceased Sohaib Elahi but according to PW-4 Dr. Muhammad Iqbal, Medical Officer, who conducted autopsy on the person of Sohaib Elahi deceased the injury on the buttock was an exit wound and likewise injury on the back of inner and upper thigh was also an exit wound and was continuation of injury No. 4.
14. Further from the deposition made by the Medical Officer it is observed that the claim of this PW is falsified as no entry wound exists on the person of Sohaib Elahi deceased. Thus to our mind the conflict between oral and medical evidence has created doubt on the authenticity of the deposition made by PW-2. Further he remained unable to establish his presence satisfactorily at the time and place of occurrence, therefore, to our mind PW-2 is a chance witness. Further enmity is admitted between the parties, thus we are of the view that the deposition made by PW-2 is not worth of credence and reliance.
15. To corroborate the ocular account, Shakeel Ahmad appeared before the court as PW-3 and reiterated almost the same facts as mentioned in the complaint, however, during cross examination PW-3 while replying to the question put to him from the defence side replied in the following manner: - "I am serving in police department since 16 years as a constable and present I am posted at P.S. Gujjar Pura Lahore. I have only one daughter. My residence is in Shadbagh, Lahore in a house owned by me."
He further replied to another question put to him in the following manner: - "I had not been appearing before the I.O?s during investigation of this case. I did not get recorded my Sarsari? Statement before the Magistrate. My statement was recorded in the court for the first time when examination-in-chief was recorded in this complaint."
16. It is clear from the above mentioned replies made by PW-3 that he never got recorded his statement under section 161 Cr.P.C. Before the IO at the time of registration of the case and he also did not got recorded his cursory statement. Further he has admitted that he is resident of Lahore and owned his house in Shadbagh and also living there. It appears that being relative of the complainant party he has been introduced as a PW to appear in the private complaint and he was never present at the time and place of occurrence. Admittedly he is serving in the police department and he knows each and every thing about the investigation. Had he been present at the time and place of occurrence, he must have appeared before the I.O. And his statement must have been recorded. Thus to our mind he was not present at the time and place of occurrence and at a very belated stage he has been introduced to become a PW. Further the same statement has been made by this PW. PW-2 gave the same role to both the appellants but as discussed above the role ascribed to Naseer appellant has been falsified by the medical evidence as no injury/entry wound exists on the buttock of deceased Sohaib Elahi, therefore, we hold that the deposition made by this PW is not worth of reliance and credence. Reliance is placed on the case law titled as "BAGH ALI versus MUHAMMAD ANWAR AND ANOHTER" (1983 SCM R 1292) wherein their lordships were pleased to hold as follows: - "There was an apparent contradiction in the doctor's saying that he found only one injury and the ocular testimony stating three injuries, which it was the obligation of the prosecution to clarify and not of the accused."
Same view is taken in case titled as "SAINDAD AND 2 OTHERS versus THE STATE" (1972 SCM R 74) wherein their lordships were pleased to hold as follows: - "Similarly the medical evidence which says that there were five incised wounds on the body of the deceased caused by some sharp-cutting weapon such as hatchet, is inconsistent with the evidence of the two eye-witnesses that only two hatchet blows were given to the deceased by appellant Ghulam Rasul. In our opinion the learned Judges of the High Court were swayed more by speculations than actual evidence in brushing aside the medical evidence. These inconsistencies are enough to hold that the prosecution failed to prove its case against the appellants beyond any reasonable doubt."
Further it was also held in case titled "FARMAN alias BHOLI versus The STATE" (2013 P.Cr.L.J. 1847) wherein their lordships were please to hold as follows: - "The post mortem examiner observed two firearm wounds; one on the chest of the deceased which made its exit on the left armpit and the other on the left upper arm which made its exit on outer side of left arm. So this is a material contradiction in the medical and ocular account. In the F.I.R. It was stated that the deceased received four shots whereas post mortem report indicates existence of two shots and the remaining two clearly described in the F.I.R. Were found to be exit wound. Such a circumstance only leads to infer that after seeing injuries on the specific part of dead body F.I.R.
Was concocted and specific injuries to both the accused were attributed."
17. Coming towards the medical evidence, it has been observed that the occurrence in the instant case is stated to have taken place on 31.12.2000 at about 10.45 a.m. (mentioned in body of complaint) but the post mortem of Sohaib Elahi deceased was conducted on 01.01.2001 and according to Dr. Muhammad Iqbal (PW-4) time between death and post mortem was 18 to 36 hours. As observed above that there was contradiction between the ocular account furnished by the PW with the medical evidence coupled with the facts that the post mortem examination on the dead body of Sohaib Elahi deceased was conducted with a noticeable delay as observed, therefore, to our mind this delay has further created serious doubt regarding the presence of the PWs at the time and place of occurrence. Reliance is placed on the case titled "Irshad Ahmad vs. The State" (2011 SCM R 1190) wherein their lordships were pleased to hold as follows: - "The medical evidence provided by Dr. Muhammad Aslam (PW-7) had shown that the murder of the deceased could have taken place at about midnight during the night between 13/14-8-2001 and not at about 07-30 p.m. On 13-8-2001 as asserted by the above mentioned witnesses. We have further observed that the post mortem examination of the dead body of Shehzad Ahmed deceased had been conducted with a noticeable delay and such delay is generally suggestive of a real possibility that time had been consumed by the police in procuring and planting eye- witnesses and in cooking up a story for the prosecution before preparing police papers necessary for getting a post mortem examination of the dead body conducted."
18. It would not be out of place to mention here that although three persons lost their lives in the instant case but no overt-act or any injury towards the remaining two deceased is attributed to the appellants except Sohaib Elahi deceased. It is also an admitted fact that no weapon of offence was recovered from the possession of either of the appellants, therefore, the claim of the prosecution is not supported by the evidence of recovery.
19. It has further been observed that the occurrence in the instant case took place on 31.12.2000 but the private complaint was filed with a considerable delay after more than one year i.e. On 17.01.2002. No explanation for filing the instant private complainant with such a delay has been brought on the file coupled with the facts that the PWs produced by the complainant in the instant case have categorically admitted that they never joined the investigation of the instant case after the registration of the case, therefore, it appears that the PWs produced were not present at the time and place of occurrence and they have been introduced by the complainant at a very belated stage which make their presence at the time and place of occurrence doubtful. Reliance is placed on the case titled as "MUHAMMAD FAIZ KHAN versus AJMER JKHAN and another" (2010 SCM R 105) wherein their lordships were pleased to hold as follows: - "It is settled proposition of law that each and every case is to be decided on its own peculiar circumstances and facts. Facts highlighted hereinabove clearly depict that respondent No.1/complainant had filed the complaint after a considerable delay after availing different remedies mentioned herein above. It is settled law that no limitation is provided in criminal law for lodging a complaint. See Queen Empress V. Ajudhia Singh and others 10 All. 350. In spite of the aforesaid general principle of law when the complaint was filed after a considerable delay which was not explained by the complainant then in such a situation it raises suspicion as to its truthfulness meaning thereby that delay in filing complaint is not by itself fatal except under very special circumstances. The complaint looses its truthfulness with the length of delay."
20. It has further been observed that on the same evidence produced by the prospection, the learned trial court has acquitted co-accused namely Naeem, Naseer son of Rafique, Shabbir son of Khan Bahadur, Molvi Abdul Rasheed, Muhammad Azam and Shabbir Ahmad son of Muhammad Ramzan by observing as follows: - "Although both the eye witnesses beside the complainant have implicated all the above mentioned nine accused in their evidence, but in view of admitted previous animosity, the independent corroboration to their deposition is available on the record only against the accused Asad alias Asdu, Naseer Ahmad son of Khan Bahadur and Ayyaz son of Khan Bahadur, but the same is deficit qua the accused namely Naeem, Naseer son of Muhammad Rafique, Shabbir son of Khan Bahadur, Maulvi Abdul Rasheed, Muhammad Azam and Shabbir Ahmad son of Muhammad Ramzan. Prosecution has not been able to prove the case as against them beyond shadow of doubt and evidence of requisite standard is not forthcoming as against them. Henceforth while giving benefit of doubt they all are hereby acquitted of the charges."
21. Undeniably, Naeem co-accused was also burdened with causing firearm injuries on the person of Sohaib Elahi deceased as were attributed to the present appellants thus to our mind no exception could be taken to the case of appellants comparing to the case of acquitted co- accused and the evidence produced by the prosecution was similar against the acquitted accused. Reliance is placed on the case titled as "Muhammad Ali vs. The State" (2015 SCM R 137) wherein their lordship were pleased to hold at page No. 140 as follows: - "Admittedly both the PWs are not residents of the locality where the occurrence took place and they are chance witnesses. The role ascribed to Noor Muhammad and Riaz is in contradiction with the medical evidence." It was further held in the same judgment at page No. 141 as follows: - "In such circumstances, the presence of the eye witnesses at the spot is doubtful. Had they been present at the spot and had witnessed the occurrence, they would have ascribed the correct role to the accused and explain all the injuries on the person of the deceased."
It was further held in the same judgment at page No. 141 as follows: - "The same set of evidence has been disbelieved qua the involvement of Noor Muhammad, Riaz and Akram co-accused who were ascribed specific role of causing injuries on the person of the deceased. Reliance in this regard is placed on Muhammad Akram v. The State (2012 SCM R 440) wherein this Court while considering other factors held that same set of evidence which was disbelieved qua the involvement of co-accused could not be relied upon to convict the accused on a capital charge and acquitted the accused."
22. In view of the above the stance taken by the appellants while recording their statements under section 342 Cr.P.C. Seems to be more plausible and worth of reliance.
23. In view of the above, it is observed that the evidence produced by the prospection is lacking independent corroboration and is stuff with many discrepancies and it is settled principle of law that many circumstances are not necessary rather one single circumstance creating doubt in a prudent mind regarding the guilt of the accused would be sufficient to extend him the benefit of doubt not as a matter of grace but as a matter of right. Reliance is placed on the case titled as "Muhammad Akram vs. The state" (2009 SCM R 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."
24. Reliance is further 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".
25. 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." In view of the above, we are persuaded to hold that prosecution has badly failed to bring home guilt of the appellants to the hilt and the learned trial court was not justified in convicting them while relying upon untrustworthy/uncorroborated evidence deposed by interested witnesses which even otherwise is full of material contradictions especially unreliable story deposed by Qurban Elahi complainant (PW-1). Resultantly salutary principle of benefit of doubt is extended in favour of the appellants Asad alias Asdu and Naseer son of Khan Bahadur. Resultantly, criminal appeal No.272 of 2008 filed by Asad alias Asdu and Naseer son of Khan Bahadur appellants is accepted and conviction and sentence awarded by the learned trial court through judgment dated 29.11.2008 is set-aside and they are acquitted of the charge levelled against them in private complaint case titled as "Qurban Elahi vs. Asad alias Asdu etc." under section 302/148/149 PPC Police Station Narang, District Sheikhupura outcome of case FIR No. 486/2000 dated 31.12.2000 registered under section 302/148/149 PPC at Police Station Narang District Sheikhupura. The appellants Asad alias Asdu and Naseer son of Khan Bahadur are directed to be released from Jail forthwith if not required in any other case. In the light of above discussion the criminal revision No. 774 of 2008 filed by Qurban Elahi complainant is dismissed. Murder reference No. 540 of 2009 is answered in NEGATIVE and death sentence of Nasir present appellant is NOT CONFIRMED.