Farrukh Gulzar Awan, J. This single judgment shall dispose of Criminal Appeal No.101 of 2009 filed by Jehangir, Criminal Appeal No.73 of 2009 filed by Muhammad Yaqoob convict (appellant), who was convicted and sentenced by the learned Additional Sessions Judge, Vehari in case FIR No.696 dated 5.11.2006 under Section 302/324/34 PPC registered at Police Station Luddan District Vehari vide judgment dated 29.01.2009. Jehangir appellant was sentenced as under:- Under Section 302(b) PPC Death and to pay compensation of Rs.100,000/- payable to the legal heirs of the deceased Zulfiqar and in default thereof to further undergo simple imprisonment for six months.
Under Section 324 PPC Rigorous imprisonment for 10-years and to pay the fine of Rs.25,000/- and in default thereof to further undergo simple imprisonment for four months.
Under Section 337-L(i) PPC Rigorous imprisonment for five years and to pay Daman of Rs.10,000/- to Allah Bakhsh injured.
Yaqoob appellant was sentenced as under:- Under Section 324 PPC Rigorous imprisonment for ten years and to pay fine of Rs.25,000/- and in default thereof to further undergo simple imprisonment for four months.
Under Section 337-F(ii) PPC Rigorous imprisonment for three years and to pay Daman of Rs.10,000/- to Allah Bakhsh injured.
Both the appellants were held entitled to the benefit of Section 382(b) Cr.P.C. And all the sentences to run concurrently.
Murder Reference No.30 of 2009 for confirmation or otherwise of death sentence of appellant Jehangir and also Criminal Revision No.69 of 2009 filed by Allah Bakhsh petitioner/complainant for enhancement of sentence of Muhammad Yaqoob respondent No.1 shall also be decided through this single judgment.
2. The state machinery was put on wheels through FIR (Ex.PM) registered on complaint (Ex.PF) of Allah Bakhsh complainant (PW-5) with the allegation that in the night on 5.11.2006 at about 2/3:00 midnight, he along with his son Zulfiqar (deceased) was sleeping under the tree of sissoo (Sheesham) in front of their Baithak when he woke up on hearing barking of dogs, saw Jehangir and Muhammad Yaqoob along with two unknown persons all armed with rifles. Jehangir fired with his rifle which hit on the neck of Zulfiqar in sleeping position. The complainant raised hue and cry whereupon Yaqoob appellant fired which hit on the left thigh of the complainant. Jehangir fired second shot, which hit on the left ear of the complainant. On hue and cry of the complainant, Ghulam Farid brother of the complainant (PW-6) and Talib Hussain came there and witnessed the occurrence. Accused decamped from the crime scene while Zulfiqar succumbed to the injury at the spot.
Motive behind the occurrence was that about eight years back, Muhammad Islam another son of the complainant had abducted sister of Jehangir and for that reason he along with his co- accused committed the aforesaid occurrence.
3. After submission of challan and framing of charge, the prosecution produced as many as 17- prosecution witnesses in order to prove its case.
4. Dr. Khalid Mehmood PW-1 conducted post mortem examination on the dead body of Zulfiqar deceased and observed the following injuries:- "INJURIES No.1. A lacerated wound 2.5 cm x 3.5 cm x through and through with inverted margins. Blackening and tattooing around the wound is present, on the middle of lower part of neck (in the supra sternal notch).
No.2 A lacerated wound 1.5 cm x 1.5 cm x through and through with everted margins on the back of left side of chest 3.5 cm on vertebral column (exit wound).
OPINION Cause of death in this was due to injury No.1 causing damage of major blood vessels and heart, which leads to profuse haemorrhage, shock and death. So injury No.1 is sufficient to cause death in the ordinary course of nature. The injuries were ante-mortem. Duration between injury and death was immediate and between death and post mortem was 8 to 10 hours approximately."
Ex.PA is the carbon copy of post mortem report and Ex.PA/1 is the pictorial diagram showing location of injuries.
5. Dr. Muhammad Akram conducted medico legal examination of Allah Bakhsh complainant and observed four injuries i.e. Two entry wounds one on the left ear Pinna and second on the left thigh, third being exit wound of injury No.3 and fourth an abrasion on upper part of Pinna. Ex.PR is the carbon copy of medico-legal examination. Dr. Khalid Mehmood (PW-13) verified the hand-writing and signature of said doctor on Ex.PR.
6. Prosecution gave up Talib Hussain being won over and gave up Ahmed Sher, Abdul Khalid, Shahid Nadeem, Shabbir Hussain and Khalid Husain No.1738/C prosecution witnesses being unnecessary and after tendering in evidence the reports of Chemical Examiner Ex.PO, that of Serologist Ex.PR and report of Forensic Science Laboratory Ex.PS, closed its evidence.
7. Both the appellants were examined under Section 342 Cr.P.C. The incriminating evidence produced by the prosecution was put to them, which they termed as incorrect. To question as to why this case was registered and why the PWs have deposed against them, Jehangir appellant replied as under:- "The PWs are related inter-se. I have been falsely implicated in this case. My wife was engaged to Zulfiqar deceased. My father in law Muhammad Nawaz broke this relationship because of madness Zulfiqar deceased and married his daughter to me. Complainant and his brother threatened to me before the occurrence that they will teach lesson for marriage to their fiance. It is a blind murder and due to above said enmity the complainant falsely roped me in this case. I am innocent."
Yaqoob appellant replied as under:- "The PWs are related inter-se and inimical towards the accused. The motive is not attributed to me.
The occurrence has not taken place in the manner as narrated by the prosecution. I am innocent.
The occurrence took place in the darkness of night. All the PWs are chance witnesses. FIR has been lodged after due deliberation and consultation. The circumstances are falsifying the evidence of PWs. I am innocent."
8.The appellants neither opted to appear on oath as witness under Section 340(2) Cr.P.C. Nor produced evidence in their defence.
9. Learned trial Court, after hearing learned counsel for the parties and going through the evidence on record, convicted the aforesaid appellants and sentenced them supra.
10. Learned counsel for the appellants have contended that it was a dark night un-witnessed occurrence; that the appellants have been falsely roped in this case due to family disputes; that the appellants as well as Muhammad Imran and Muhammad Yasin co-accused (since acquitted) are previously known to the complainant but he identified the appellants in odd hours of dark night but failed to identify both the said co-accused, which creates serious doubt about his veracity; that there are material contradictions in the statements of both the eye witnesses as to the actual place of presence of the appellants at the place of occurrence; that no source of light and role has been mentioned in FIR (Ex.PM) as well as in the scaled site plan (Ex.PD); that the prosecution has failed to prove its case beyond shadow of doubt; that it is well settled principle of law that even slightest doubt in the prosecution case favours the accused leading to his acquittal; that motive is not attributed to the appellants, which even otherwise is unbelievable for the reason that it was old one i.e. 7/8-years ago and during this period no quarrel had taken place between them; that there are material contradictions in the statements of the prosecution witnesses as they have made improvements on certain points in their statements which goes to the very root of the case; that the prosecution has failed to establish guilt of the appellants, therefore, they are liable to be acquitted.
11. On the other hand, learned DPG assisted by learned counsel for the complainant contends that the appellants are nominated accused with the specific role of causing fire arm injuries on the person of Zulfiqar deceased as well as the complainant; that the eye witnesses of the occurrence have fully implicated the appellants in the occurrence; that the appellants were duly identified by the eye witnesses in moon-light and there is no occasion for their misidentification; that the presence of all the prosecution witnesses at the place of occurrence is natural one; that the prosecution has successfully proved motive behind the occurrence as discussed by the learned trial Court; that Yaqoob appellant has actively participated in the occurrence while sharing common intention and as such he is also liable to be convicted under Section 302(b)/34 PPC; that the learned trial Court has rightly convicted both the appellants but failed to pass legal sentence against Yaqoob appellant and lastly it has been prayed that conviction and sentence of appellant Jehangir be maintained and the same may be enhanced to the extent of Yaoob appellant.
12. We have heard the learned counsel for the appellants, learned DPG for the State assisted by learned counsel for the complainant and have also gone through the record.
13. The ocular account in this case has been furnished by Allah Bakhsh complainant (PW-5) and Ghulam Farid eye witness (PW-6). This occurrence took place on 5.11.2006 at about 2/3:00 a.m.
When Jehangir and Yaqoob appellants along with their co-accused Yasin and Imran while armed with rifles attacked upon the complainant party. Jehangir appellant has been assigned the role of causing fire arm injury on the middle of lower part of neck of Zulfiqar deceased i.e. Injury No.1 and injury No.2 (exit wound of injury No.1) and also causing fire arm injury on the ear of Allah Bakhsh complainant (PW-5) i.e. Injury No.1. Allah Bakhsh complainant (PW-5) deposed during cross- examination that he is brother of Muhammad Nawaz father of Yasin co-accused. He further admitted that mother of Jehangir appellant was his step-sister, who died six months earlier to this occurrence. He further admitted that Talib, given up prosecution witness, is cousin of Imran co- accused. No source of light has been disclosed in the FIR (Ex.PM). Both un-scaled and scaled site plans Ex.PN and Ex.PD respectively also do not show the source of light. Allah Bakhsh complainant (PW-5) denied the suggestion during cross-examination that it was dark night, however deposed that it was thirteenth of looner month. In the circumstances, it is unbelievable that the eye- witnesses could not identify the person already known to them but identify the person of their own choice in the absence. Failure on the part of prosecution to prove the source of light at the time of occurrence would make the case of prosecution doubtful. So far as moon-light at the time of occurrence is concerned, the prosecution has failed to prove the same. In ordinary prudence, there hardly exits the possibility of even defining features of a person from a short distance in the moon- light. We are fortified from case law reported as "MALI ETC. Versus THE STATE (1968 P.Cr.L.J. 1077 [Baghdad-ul-Jadid])" wherein at page 1080, it has been held as under:- "To define the features even at a shorter distance is practically impossible by moonlight."
Even otherwise, prosecution did not explain the source of light in whole of its evidence, which came up on record during cross-examination by Allah Bakhsh (PW-5) in the form of suggestion but the prosecution is bound to stand on its own legs to prove its case. We are fortified from the case law reported as "MUHAMMAD SHAH versus THE STATE (2010 SCM R 1009)" wherein it has been held at Page No.1014, paragraph No.10 as under:- "This Court in several authorities has held that an accused can take several defence but that will not improve the prosecution case as the prosecution case stands on its own evidence."
14. Malik Azam Khan, draftsman (PW-2) prepared scaled site plan (Ex.PD) on the direction of investigating officer and pointation of the prosecution witnesses wherein the place where Zulfiqar deceased was sleeping on a cot has been shown at point No.1 and place of presence of Jehangir appellant has been mentioned at point No.3 and distance between these points is 3-feet on North- East side. The place of presence of Allah Bakhsh has been mentioned at point No.3, which is at a distance of 4-feet from point No.1 on North-West side. Both Ghulam Fareed and Talib Hussain prosecution witnesses have been shown to be standing at point No.4, distance between point No.1 and point No.4 is 25-feet on the opposite side i.e. South-East. There is no mention of presence of co-accused Yasin and Imran (unknown accused) in the said scaled site plan. It is also no where mention that from which side the appellants along with their co-accused came at the place of occurrence and on which side they fled away soon after the occurrence. There is also no mention of source of light at the place of occurrence. Distance between point No.4 and point No.1 is 25-feet, which becomes 28-feet from point No.3 and almost same distance from point No.1. If the appellants and their co-accused fled away on Northern or Eastern side on opposite side of the prosecution witnesses, which is natural in ordinary course, it was not possible for the prosecution witnesses to identify any of the assailants but even then they astonishingly identified some of the accused by standing at point No.4, which is at a distance of more than 25-feet. The complainant deposed during cross-examination the assailants were not having blanket and were not muffled face. In this backdrop it appears that both the said eye-witnesses identified the persons of their own choice i.e. Jehangir and Muhammad Yaqoob appellants but the question remains that why they could not identify their close relative Yasin and one Imran co-accused (both since acquitted).
Had the eye witnesses been present at the spot and witnessed the occurrence, they would have identified all the assailants with their respective roles and also the direction of their arrival and departure. Moreover, two crime empties (P-3/1-2) were recovered from the place of occurrence while assertion of the complainant is that Jehangir appellant fired two shots and Yaqoob appellant fired one shot. As such the recovery of two crime empties does not find support from the oral deposition. The essence of above discussion is that the presence of eyewitnesses at the place of occurrence is highly doubtful, untrustworthy, improbable and not worthy of credence, therefore, casts serious doubt about their veracity.
15. This occurrence was witnessed by Allah Bakhsh complainant/injured (PW-5), Ghulam Fareed (PW-6), who is brother of the complainant and one Talib Hussain son of Mehmood. Prosecution gave up Talib Hussain firstly being won over on 25.10.2008 and then on 15.11.2008 being unnecessary. Talib Hussain was an independent witness but the prosecution has withheld him being unnecessary without realizing that he was the most pivotal witness. So we are constrained to presume under Illustration (g) of Article 129 of The Qanun-e-Shahadat Order, 1984 that the said witness, if produced, would have been un-favourable to the prosecution. Reliance in this respect is placed on case reported as "RIAZ AHMAD Versus THE STATE (2010 SCM R 846)" where in paragraph No.4 it has been held as under:- "Therefore, his evidence was the best piece of the evidence, which the prosecution could have relied upon for proving the case but for the reasons best known, his evidence was withheld and he was not examined. So a presumption under Illustration (g) of Article 129 of Qanun-e-Shahadat Order, 1984 can fairly be drawn that had the eye-witness Manzoor Hussain been examined in the Court his evidence would have been unafvourable to the prosecution."
16. Muhammad Muzaffar No.441/C (PW-15) deposited sealed parcel containing empty bullets in the office of Forensic Science Laboratory on 2.2.2007 and Abdul Jabbar No.569/C (PW-14) deposited sealed parcel containing rifle 7-MM in the said office on 5.6.2007 while according to report of Forensic Science Laboratory (Ex.PS), the same were received in the said office on 3.2.2007 and 7.6.2007 and as such, the positive report of Forensic Science Laboratory (Ex.PS) cannot be relied upon and even the prosecution could not produce any evidence on record as to which of the weapons recovered from the appellants, was sent for expert opinion. In the circumstances, recovery of weapons of offence from the appellants does not corroborate the prosecution case.
17. Opinion of medical expert shows that Zulfiqar deceased was in standing position when he received fire shot, which negates the story of FIR. Dr. Muhammad Akram conducted medico legal examination of Allah Bakhsh complainant (PW-5) and observed five injuries on his person.
Deposition of medical expert is supportive piece of evidence, which is relevant when finds support from strong and un-shattered oral as well as other supporting evidence while in this case the presence of eye-witnesses at the place of occurrence has been observed being doubtful. It could confirm only the receipt of injury, locale of injury, kind of weapon used for causing the injury, duration between the injury and the death but it would not tell the name of accused. Reliance in this respect is placed on case titled "TANVEER AHMAD and another Versus THE STATE (2013 YLR 1845 [Lahore])" where in at page No.1852 paragraph No.12, it has been held as under:- "Medical evidence is only a supporting piece of evidence because it may confirm the ocular evidence with regard to the receipt of the injury, locale of injury, kind of weapon used for causing the injury, duration between the injury and the death but it would not tell the name of the assailants. Reliance is placed on "Ata Muhammad and another v. The State (1995 SCM R 599)."
In the circumstances, medical evidence will not improve the case of prosecution to prove the identity of appellants.
18. So far as motive is concerned, the same has been mentioned in FIR (Ex.PM) by Allah Bakhsh complainant (PW-5) that eight years ago his other son namely Muhammad Islam had abducted sister of Jehangir appellant, who had strong grudge against him. Motive is neither directly attributed to the appellants nor their co-accused rather it was towards Muhammad Islam another son of the complainant and Zulfiqar deceased is having no concern whatsoever with the motive in any manner. There is nothing on record to show that during the aforesaid period of eight years, Jehangir appellant ever quarreled with the sons of the complainant, Muhammad Yaqoob or other co-accused (since acquitted). It is unbelievable story that the appellants kept on creeping thrust of personal vendetta for long period of eight years during which they did not attack upon the complainant party. Motive in this case disappears for want of proof and being entirely feeble, artificial and not at all appealing to a prudent mind.
19. Allah Bakhsh complainant (PW5) also received injuries on different parts of his body being present at the spot. This occurrence took place at 2/3:00 a.m. In the night, no source of light has been mentioned by the prosecution either in the FIR (Ex.PM) or in their examination-in-chief and in the circumstances there is the possibility of substitution and as such his veracity is doubtful. We are fortified from the case law reported as "YAR MUHAMMAD and 3 others versus THE STATE (1992 SCM R 96)" wherein at page No.100, it has been held as under:- "There can be no cavil with the proposition that even witnesses related to deceased, injured or the complainant if they are in a position to identify the offender and were also present and further that there is no possibility for substitution then their statement can be accepted without corroboration.
But if there is exaggeration in their statement and there is some doubt to the veracity, then for the safe administration of criminal justice it would be proper to insist on independent corroborative evidence."
20. It is always duty of the prosecution to stand onhis own legs and to prove the case beyond any shodow of doubt. The prosecution has miserably failed to prove its case against the appellants beyond reasonable doubt. It is cardinal principle of criminal jurisprudence that a single instance causing a reasonable doubt in the mind of the Court entitles the accused to the benefit of doubt and that such benefit must accrue in favour of the accused as a matter of right not as a matter of grace. Reliance can be placed on case titled "TARIQ PERVEZ versus The State (1995 SCM R 1345 [Supreme Court of Pakistan])", wherein at page No.1347, it has been held as under:- "For giving benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubts. If a simple circumstance creates reasonable doubtful in a prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right."
21. The rule of benefit of doubt which is based on the golden principle of prudence, cannot be ignored while dispensing justice according to law. The said principle is based on the maxim "it is better to acquit ten guilty persons rather to convict one innocent" as held at page No.1862 of case titled "ABDUL HUSSAIN versus THE STATE (2003 P.Cr.L.J. 1847 [Karachi])".
22. Epitome of above discussion is that while extending benefit of doubt, setting aside the judgment of the conviction and sentence dated 29.1.2009, Jehangir and Muhammad Yaqoob appellants are hereby acquitted resulting in acceptance of their respective Criminal Appeal No.101-J of 2009 and Criminal Appeal No.73 of 2009 . Appellant Jehangir is in jail, he shall be released forthwith if not required in any other case. Appellant Muhammad Yaqoob is on bail, his bail bonds as well as surety stands discharged from the liability.
23 Criminal Revision No.69 of 2009 for enhancement of sentence of Muhammad Yaqoob respondent No.1 is dismissed.
24. Death Sentence awarded to Jehangir appellant is NOT confirmed and Murder Reference No.30 of 2009 is answered in negative.