CH. MUSHTAQ AHMAD, J:- Appellants Muhammad Ajmal, Muhammad Hussain, Muhammad Iqbal and Mumtaz have challenged their conviction and sentence through criminal appeals No.12-J of 2013, criminal appeal Nos.1319, 1500 and 1554 of 2011, respectively. They were tried by learned Additional Sessions Judge, Pakpattan in a private complaint titled "Muhammad Din Vs. Muhammad Ajmal and three others". As required under section 374 Cr.P.C., learned trial court has forwarded Murder Reference No.308 of 2011 for confirmation of death sentence of appellant Muhammad Ajmal. Muhammad Din, complainant has filed criminal revision No.1084 of 2011 seeking enhancement of sentence of appellants. All these matters are result of a single judgment dated 20.06.2011 given by learned trial court, as such exercise of reappraisal of the same evidence is to be carried out to reach at a proper conclusion.
2. On conclusion of trial, learned trial court vide judgment dated 20.06.2011 convicted appellants and they were sentenced as under:- Appellant Muhammad Ajmal: Convicted under section 396 PPC and sentenced to death, with fine Rs.20,000/-. In default in payment of fine, to further undergo simple imprisonment for six months. He was also directed to pay an amount of Rs.50,000/- as compensation under section 544-A Cr.P.C. To legal heirs of deceased, failing payment of which to further undergo simple imprisonment for three months.
Appellant Muhammad Hussain.
Convicted under section 396 PPC and sentenced to imprisonment for life, with fine Rs.20,000/-. In default in payment of fine, to further undergo simple imprisonment for six months. He was also directed to pay an amount of Rs.50,000/- as compensation under section 544-A Cr.P.C. To legal heirs of deceased, failing payment of which to further undergo simple imprisonment for three months.
Appellant Muhammad Iqbal.
Convicted under section 396 PPC and sentenced to imprisonment for life, with fine Rs.20,000/-. In default in payment of fine, to further undergo simple imprisonment for six months. He was also directed to pay an amount of Rs.50,000/- as compensation under section 544-A Cr.P.C. To legal heirs of deceased, failing payment of which to further undergo simple imprisonment for three months.
Appellant Mumtaz.
Convicted under section 396 PPC and sentenced to imprisonment for life, with fine Rs.20,000/-. In default in payment of fine, to further undergo simple imprisonment for six months. He was also directed to pay an amount of Rs.50,000/- as compensation under section 544-A Cr.P.C. To legal heirs of deceased, failing payment of which to further undergo simple imprisonment for three months.
Benefit under section 382(B) Cr.P.C. Was awarded to appellants.
3. Muhammad Din complainant got registered FIR No.565/2010 dated 08.07.2010 under sections 302, 396 PPC with police station Saddar Pakpattan. Feeling dissatisfied by the police investigation, he lodged private complaint titled "Muhammad Din Vs. Muhammad Ajmal and four others" regarding the same occurrence. As per contents of said complaint, on 08.07.2010 at about 09:30 P.M., complainant having a torch with him alongwith Ahmad Din and Ata Muhammad was going on a motorcycle Honda 100 CC driven by Ahmad Din. At about 09:30 P.M when they reached near Bypass Sultan Chowk, Riaz Ahmad, Muhammad Ajmal, Mumtaz, Muhammad Hussain and Muhammad Iqbal accused persons duly armed with pistols 30-bore were already present there whom the complainant and witnesses identified in torch light and motorcycle. Riaz Ahmad accused was already known to complainant whereas names of remaining accused became known to him after identification parade. Said accused persons stopped them for committing dacoity and attempted for their personal search. In the meanwhile, Munir Ahmad came there whom accused also stopped and snatched cash amount Rs.6050/- and a mobile phone set Samsung from him on gun point. When accused attempted to rob Ata Muhammad, he resisted, whereupon Muhammad Ajmal made a fire-shot which hit him on head. Ata Muhammad succumbed to the injury at the spot. Fire shots made by Mumtaz and Muhammad Hussain hit Munir Ahmad. Accused persons made indiscriminate firing in order to create terror, as a result of which their companion/accused Muhammad Iqbal sustained a firearm injury on left arm. Thereafter, accused fled away. Muhammad Yousaf was also present there at that time who witnessed the occurrence. It has been alleged that police reached the spot after receiving information of the occurrence on 15. Complainant told the occurrence to "thanedar" who obtained his signatures on a blank paper. It has been further alleged that statement of complainant was not correctly recorded by Muhammad Khalid SI who has attributed to Riaz Ahmad accused the fire shot made by Muhammad Ajmal appellant.
4. Appellants alongwith co-accused Riaz Ahmad (since P.O) were charged sheeted, who pleaded innocence and claimed trial. At the trial complainant himself appeared as PW-1 and got examined Ahmad Din and Munir Ahmad as PW-2 and PW-3, whereas Dr. Rizwan Hassan Chishti was examined as PW-4. Statements of nine witnesses were recorded as CW-1 to CW-9. Thereafter accused were examined under section 342 Cr.P.C. And on conclusion of trial appellants were convicted and sentenced as mentioned above.
5. Learned counsel for appellants argued that occurrence took place at dark night and was unwitnessed; that the complainant firstly got registered FIR falsely implicating the appellants and after failing in getting favourable results of investigation, he lodged private complaint by totally changing the story; and that, findings recorded by learned trial court does not find support from the evidence on record.
6. Conversely, learned DPG assisted by learned counsel for complainant opposed the appeals stating that version of complainant was not correctly recorded by police which necessitated filing of private complainant. He further argued that eye witnesses remained consistent on material points and their statements were corroborated by medical evidence, as such learned trial Court rightly convicted the appellants. Learned counsel for complainant in criminal revision No.1084 of 2011 prayed for enhancement of sentence of appellants.
7. We have heard learned counsel for the parties at length and gone through the impugned judgment as well as record with their assistance.
8. Occurrence took place on 08.07.2010, regarding which complainant at first got registered case vide FIR No.565/2010 with police station Saddar Pakpattan alleging therein that at about 09:30 P.M, he, his brother Ahmad Din and Ata Muhammad were proceeding towards Pakpattan City from their house on a motorcycle driven by Ahmad Din. When they reached near Bypass Sultan Chowk, Riaz Ahmad who was known to him previously alongwith five unknown persons (features detailed in the FIR) while armed with pistols 30-bore intercepted them and tried to make their personal search with intent to commit dacoity. In the meanwhile, Munir Ahmad (PW-3) came there from whom accused snatched cash and a mobile phone set, whereas Ata Muhammad his brother resisted, on which Riaz Ahmad accused made fire shot on Ata Muhammad which went through his head resulting into his death. Then unknown persons made firing at Munir Ahmad who was injured. After investigation of said FIR, complainant preferred to lodge private complaint regarding the same occurrence. It is important to mention that in the private complaint he attributed fatal fire shot to Muhammad Ajmal appellant instead of Riaz Ahmad accused. It was stated in the complaint that Muhammad Iqbal, one of the accused (appellant herein) was injured at the spot by firing of the accused, which fact was not mentioned in the FIR. Main reason for filing private complaint according to complainant was that his version was not correctly recorded in the FIR. In this regard, it is worth noticing that FIR was recorded by Mansab Ali 483/C (CW-1) on the basis of complaint Ex.D-A sent by Muhammad Khalid SI (CW-9), who after receiving information of the occurrence visited the spot and recorded complaint on the statement of Muhammad Din complainant (PW-1).
According to CW-9, he recorded statement of complainant Ex.D-A and contents were read over to him who signed the same in token of its correctness. After registration of FIR, Ghulam Mustafa Chughtai draftsman (CW-6) visited the spot and took rough notes on pointation of PWs and on the basis of which he prepared scaled site plan Ex.CW-6/A. During cross examination CW-6 stated that during his visit PWs attributed role of firing a shot at Ata Muhammad (deceased) to Riaz Ahmad accused. Similar is the position and role of accused mentioned in the site plan Ex.CW-6/A. As one accused namely Riaz Ahmad was specifically named in the FIR and remaining were unknown, so identification parade was conducted for identifying the actual culprits under supervision of Judicial Magistrate who appeared as CW-5. During identification parade complainant Muhammad Din picked up Muhammad Ajmal accused (appellant) as the person who made fire shot on Ata Muhammad, whereas by other witnesses participating in the identification parade, no such role was ascribed to Muhammad Ajmal appellant.
9. As per contents of FIR, there was no mentioning of receiving of any firearm injury by Muhammad Iqbal accused (appellant) at the hands of his own companions during occurrence. This fact was also introduced for the first time in private complaint. Appellants in their statements recorded under section 342 Cr.P.C. Stated that fake MLC of Muhammad Iqbal (appellant) was obtained by police in connivance with the complainant. In this regard it is pointed out that investigation of the FIR was conducted by Muhammad Khalid SI, who visited the spot after the occurrence and completed initial steps of investigation. Blood stained earth was secured by CW-9 only from the place of dead body of Ata Muhammad. During cross examination CW-9 stated that he did not observe any blood stained earth at any other place.
10. Muhammad Din complainant (PW-1) during cross examination stated that Ghulam Rasool (CW- 8) met him on the following day of occurrence and had been visiting him for seven consecutive days after the occurrence. Ghulam Rasool (CW-8) is admittedly close relative of the complainant, who according to Investigating Officer (CW-9) nominated the appellants in his statement recorded at the place of occurrence but why this fact did not come to the knowledge of complainant, is a question mark. Moreover, in the FIR, no source of light was mentioned but in the complaint a torch light was introduced by the complainant. Investigating Officer CW-9 during cross examination stated that he was not informed about any source of light during his first visit to the place of occurrence.
11. Stance of appellants regarding their involvement in this case is that they were implicated on asking of Tahir Waheed SHO. Riaz Ahmad co-accused was nominated in the FIR with specific role of making fatal fire-shot at Ata Muhammad (deceased). Investigation was conducted on the basis of facts mentioned in the FIR. During investigation complainant did not raise objection before higher police authorities nor moved any complaint against investigating officer. He M.R. No.308 of 2011 10 took somersault for the first time during identification parade when he attributed role of fatal fire shot to Muhammad Ajmal appellant. At that time other witnesses did not support complainant's version by ascribing fatal fire-shot to Muhammad Ajmal appellant. In the circumstances, stance of complainant that his statement was not correctly recorded by the police, does not sound logical.
Improvements inconsistent with the case set up in the FIR as well as change of role of accused qua fatal fire-shot in the private complaint, cast serious doubt on the veracity of ocular testimony and it is not safe at all to base conviction on such distorted evidence.
12. It is settled principle of criminal justice that conviction must be based on unimpeachable evidence and certainty of guilt and any doubt arising in the prosecution case must be resolved in favour of the accused. Reliance in this regard is placed on case titled "Muhammad Khan and another V. The State" (1999 SCM R 1220). For giving the benefit of doubt it is not necessary that there should be many circumstances creating doubts. Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefit, not as a matter of grace and concession, but as a matter of right. Reference may be made to case titled "Tariq Pervez V. The State" (1995 SCM R 1345). The same view has been reiterated by Hon'ble Supreme Court in "Muhammad Akram V. The State" (2009 SCM R 230). For the reasons recorded above, findings of conviction recorded by learned trial court are not maintainable. Therefore, accepting all the titled criminal appeals, conviction and sentence recorded by learned trial court against appellants through impugned judgment is set aside and appellants are acquitted of the charge. They be released forthwith if not required in any other case. Murder Reference No.308 of 2011 is answered in negative.
13. For the above reasons, criminal revision No.1084 of 2011 is dismissed.