Miss Aalia Neelum, J.--Abid, Shaukat and Gulzar sons of Muhammad Bakhsh along with Ali Hassan son of Muhammad Amin, appellants (in Criminal Appeal No. 1362 of 2010) resident of Chak No. 215/RB, Faisalabad were involved in case F.I.R. No. 405 of 2009 dated 17.04.2009, offence under Sections 302, 148, 149, P.P.C., registered at Police Station, Saddar, District Faisalabad and were tried by Mr. Bedar Bakht, Additional Sessions Judge, Faisalabad. The learned trial Court seized with the matter in terms of judgment dated 20.05.2010 while convicting the accused/appellant Abid under Section 302(b), P.P.C. and sentenced him to death with direction to pay Rs. 50,000/- as compensation to the legal heirs of the deceased, failing which, further undergo six months S.I. The accused/appellants Shaukat, Gulzar sons of Muhammad Baksh, and Ali Hassan son of Muhammad Amin were convicted under Section 302(b), P.P.C. read with Section 34, P.P.C. and each of them were sentenced to life imprisonment and they were also liable to pay Rs. 50,000/- each to the legal heirs of Asad Abbas, deceased under Section 544-A, Cr.P.C. and in case of default, they shall have to further undergo six months S.I.
2. Being aggrieved by the judgment of the learned trial Court, Abid, Shaukat, Gulzar and Ali Hassan- appellants impugned the same through filing Crl. Appeal No. 1362 of 2010, whereas the learned trial Court has forwarded Murder Reference No. 445 of 2010 for confirmation of death certificate. The complainant being dissatisfied with the judgment dated 20.05.2010, filed Criminal Revision No. 762 of 2010 and prayed for enhancement of sentence of respondents/accusedShaukat, Gulzar and Ali Hassan. As all the matters are arising out of one and the same judgment of the learned trial Court, therefore, they are being disposed of through a single judgment.
3. Prosecution story as alleged in the F.I.R. (Ex.PA/1) lodged on the statement (Exh.PA) of Hadayat Ali (PW-5)/complainant is that the complainant (PW-5) is resident of Chak No. 215/R.B. Nathri and Zamindar by profession. On 17.04.2009, he (the complainant) was present in his house when at 5.00 a.m. his (the complainant) younger son Kashif (PW-8) came to the house and informed him (the complainant) that at the intervening night of 16/17.04.2009, he (Kashif), Asad Abbas (the deceased) and Shah Muhammad (PW-9) were sleeping at their Dera when accused Abid, Shaukat, Gulzar sons of Muhammad Bakhsh and Ali Hassan son of Muhammad Amin along with two unknown accused armed with pistols came there and awakened them all. They (accused persons) separated Kashif (PW-8) and Shah Muhammad (PW-9) by pointing pistol while one unknown accused stood as guard upon them during this time. Rest of four nominated accused and one unknown accused tied hands of Asad Abbas (the deceased) with rope at his back and another rope was wrapped around the neck of Asad Abbas and by strangulation Asad Abbas was killed and his dead body was hanged with a tree of Barh. He (Kashif) also informed that after hanging dead body of the deceased, they threatened to kill them if they moved. Thereafter the accused- persons went away. After leaving Shah Muhammad to safeguard the dead body, Kashif (PW-8) went to his house and informed about the occurrence to the complainant. The complainant (PW- 8) was on way to Police Station to report the matter when he met Nasir Abbas, ASI (PW-10) at "Kakuana bridge" and reduced into writing the statement (Exh.PA) of the complainant (PW-5) and the complainant (PW-5) put his thumb impression as a token of its correctness and after completion of police karawai (Exh.P/2) Nasir Abbas, ASI (PW-10) sent the same to the Police Station through Rizwan, 5532/C, whereupon formal F.I.R. (Exh.PA/1) was chalked out by Sana Ullah, 1060/HC (PW-1). Thereafter the investigation came up before Abdul Majeed, SI (PW-11) who visited the place of occurrence, prepared inquest report of the deceased-Asad Abbas as (Exh.PG) and injury statement as (Exh.PF). Thereafter, the Investigating Officer (PW-11) deputed Muhammad Nawaz, constable (PW-4) for the post-mortem examination of the deceased- Asad Abbas. He also prepared un-scaled site plan (Exh.PK) of the place of occurrence. Beside recording the statements of the prosecution witnesses in terms of Section 161, Cr.P.C. he took into possession two strings (P-3) and (P-4) vide recovery memo. (Exh.PJ). On 17.4.2009, Muhammad Nawaz 4796/C (PW-4) produced the last worn clothes of the deceased before the Investigating Officer (PW-11) i.e. Shalwar P-1 and Bunyan P-2 which were taken into possession vide recovery memo. Exh.PD. On 22.4.2009 he arrested the accused-Abid, Shaukat and Gulzar. On 05.5.2009 the Investigating Officer (PW-11) prepared memo. of pointation (Exh.PB) and (Exh.PC) on the pointing of accused-Abid and Shaukat where they threw the pistols used in occurrence and thrown in Ganda-Nala on Satiana Road.
Thereafter on 06.5.2009 he arrested the accused Ali Hassan. On the direction of the Investigating Officer and on pointing out of the prosecution witnesses, Aurangzeb-draftsman (PW-7) prepared scaled site plan of the place of occurrence (Exh.PH) and Exh.PH/1 on 21.04.2009 which were handed over by the Draftsman (PW-7) to the Investigating Officer. Thereafter the investigation was entrusted to Muhammad Aslam, S.I. (PW-12). During investigation he (PW-12) concluded that all the accused were not armed at the time of occurrence.
4. Having found the accused persons guilty, the Investigating Officer prepared report under Section 173, Cr.P.C. and sent the same to the Court of learned Sessions enrouted through the learned Illaqa Magistrate as provided under Section 190 (2), Cr.P.C. on 22.5.2009. On 24.6.2009, the learned Addl.
Sessions Judge, Faisalabad formally charge sheeted the appellants to which they pleaded not guilty and claimed trial. The prosecution in order to prove its version, produced as many as twelve
(12) witnesses. Hidayat Ali (PW-5) is the complainant of the case, whereas prosecution version of ocular account was substantiated through the statements of Kashif (PW-8) and Shah Muhammad (PW-9). On presentation of the complainant, Sana Ullah, HCARDW-1) had chalked out formal FIR.
Aurangzeb, draftsman (PW-7) had Prepared scaled site plan of the place of occurrence, whereas investigation of this case was conducted by PW-11 and PW-12, namely, Abdul Majeed, SI and Muhammad Aslam, S.I. respectively.
5. Dr. Javed Iqbal (PW-6) on 17.4.2009 at 3.30 p.m. (day) had conducted post-mortem examination upon the dead body of Asad Abbas and observed following injuries on his person:-- INJURIES:
1. A. 2 cm broad ligature mark. All around the neck except a 3 cm free area on left back of the neck just on the thyroid cartilage, horizontal, it was 8 cm from root of right ear. Its two ends went up at the back of left ear but underline tissues were not bruised. Remaining underline tissues were bruised all around the neck.
2. A ligature mark 1 cm broad faint in colour just 2 to 3 cm above the wrist joint. On both the forearms of the deceased, underlying tissue was not bruised on both the forearms.
After conducting the post-mortem examination, the doctor rendered the following opinion:-- Opinion.
Death in this case had occurred due to Injury No. 1 inflicted by a ligature, which led to asphyxia and death. Thus the stated injury was sufficient to cause death in ordinary course of nature. Horizontal mark of ligature on the neck was ante-mortem. Hyoid bone was intact.
6. The learned Deputy District Public Prosecutor gave up PWs Ameer Ali and Gulzar on 01.9.2009, being un-necessary and closed the prosecution evidence on 19.04.2010.
7. The appellants were also examined in terms of Section 342,. Cr.P.C., wherein they opted not to appear as their own witnesses in terms of Section 340(2) of Cr.P.C., in disproof of the allegations levelled against them in the prosecution version, however, opted to lead defence evidence. In response to a particular question, as to why this case against them and why the PWs deposed against them, all the appellants made the following deposition: "The case has been falsely registered against me and the PWs have deposed against me on account of relationship with the deceased. All the witnesses are closely related interse."
8. In defence, the appellant-Abid Ali after tendering death certificate of Zohra Bibi wife of Falak Sher, Caste, Muslim Sheikh dated 17.04.2009 as Exh.DB, F.I.R No. 1015 of 2008 as Exh.DC, F.I.R. No. 1011 of 2008 as Exh.DD, F.I.R. No. 909 of 2008 as Exh.DE, F.I.R No. 988 of 2008 as Exh.DF, F.I.R. No. 989 of 2008 as Exh.DG and F.I.R No. 1016 of 2008 as Exh.DH and closed his defence evidence on 05.05.2010. Whereas, the appellants after tendering death certificate of Zohra Bibi wife of Falak Sher, Caste Muslim Sheikh dated 17.04.2009 as Exh.DJ, Exh.DK and Exh.DL, respectively and closed their defence evidence on 05.5.2010.
9. After hearing the arguments advanced by the learned counsel appearing on behalf of both the parties, the learned trial Court, while evaluating the evidence available on the record, found the version of the prosecution correct beyond any shadow of doubt, resulting into conviction of the appellants in the above stated terms.
10. Arguments advanced from both sides have been heard. We have also gone through the record available on file with the able assistance of the learned counsel for the appellants and learned counsel for the complainant as well as the learned Deputy Prosecutor General.
11.The occurrence in this case as per F.I.R. (Ex.PA/1) took place at the intervening midnight on 16/17.04.2009 and the incident was informed to the complainant (PW-5) by his son, namely, Kashif (PW-8) at 5.00 a.m. The complainant (PW-5) stated that having heard about the incident, he reported the incident to the police at 6.25 a.m at "Kakuana Pulli" to Nasir Abbas, ASI and formal F.I.R. chalked out at 6.30 a.m. The Police Station Saddar, District Faisalabad was at a distance of 2- kilometers from the place of occurrence. The incident has taken place at Dera situated at Chak No. 215/RB Nathri. The inordinate delay of one and half hours in reporting the incident has not been explained by the prosecution inspite of the fact that Police Station was at distance of 02-kilometers from the place of occurrence. The delay of one and half hour in reporting the incident provides sufficient time for deliberation and consultation. Delay in lodging the F.I.R. often results in embellishment, which is creature of an afterthought. It is not the prosecution case that the complainant on having heard about the incident first visited the plate of occurrence. The prosecution has not succeeded in proving that the F.I.R. was lodged promptly. PW-8 deposed that "our dera is at a distance of 4-squares from our village". He further deposed that "at about 3:30 a.m I proceeded from place of occurrence to inform my father" whereas PW-9 Shah Muhammad deposed that, "the accused guarded us till 2.00/2.30 a.m." It is admitted fact that residence of PW-8 was at a distance of 4-squares from the place of occurrence and he proceeded to inform his father at 3:30 a.m from the place of occurrence but he reached his house at 5.00 a.m. The inordinate delay of about 1.00/11/2 hours from the time of leaving of accused persons around 2.00/21/2 remained unexplained and renders the whole of the prosecution version doubtful.
12. According to the prosecution case, the Investigating Officer (PW-11) left for the place of occurrence after the case had been registered at the Police Station but we find that in the inquest report, which was prepared at the spot by Abdul Majeed, SI (PW-11), the Investigating Officer, the number of the FIR has not been given. Even inquest report (Ex.PG) suggest that time of information of death was 6.00 a.m. The inquest report is not signed by any of the eye-witnesses, although the Investigating Officer has categorically asserted that he recorded statements under Section 161, Cr.P.C. of the eye-witnesses at the spot. If the Investigating Officer actually recorded statements of the witnesses at the place of occurrence then same should have been mentioned in the inquest report (Ex.PG), which we have found missing. We have noted that the contents of F.I.R. (Ex.PA/1) were reproduced ad verbatim in the inquest report (Ex.PG).
13.There is yet another factor which is very relevant. We cannot loose sight of the fact that the PW-8 himself and PW-9 Shah Muhammad did not disclose the fact that how dead body of the deceased was suspended by branch of a tree of Barh having height of 9 feet and the dead body was of an adult having height of 5'-6/7" lying on the ground. There was no evidence to show that any thing had been noticed in the surroundings of the tree which would have helped in the suspending of the dead body to the tree. It has also not been mentioned that which accused helped in the suspension of the body from ground to the tree branch. The prosecution also led no evidence to show when and by whom the dead body of the deceased was alighted from the tree.
The inquest report is also silent about it. The Investigating Officer (PW-11) after reproducing ad- verbatim the contents of the F.I.R. (Ex.PA/1) in the inquest report, mentioned that he prepared injury statement and un-scaled site plan and dispatched the dead body of the deceased for post- mortem examination through Muhammad Nawaz Constable. The Investigating Officer (PW-11) has remained silent on this aspect of the case. That means to say that the prosecution had tried to suppress the actual occurrence. PW-8 Muhammad Kashif deposed in his statement that, "I and Shah Muhammad were forced to sit at a place jointly when we were sitting, our faces were towards East." Contrary to the deposition of PW-8 Muhammad Kashif, PW-9 Shah Muhammad deposed that, "I and Kashif was made to sit jointly at a place. Our faces were towards Asad Abbas deceased." PW-11 Abdul Majeed, SI, the Investigating Officer deposed that, "The dead body was hanging on western side of the tree." This fact was not narrated by them i.e. PW-8 and PW-9 while making statement before the Court as mentioned above and has thus concealed this fact. In likewise manner, from the evidence of PW-8 and PW-9, they cannot be witnesses of occurrence. If PW-8 and PW-9 are to be accepted as eye-witnesses, it ruins the whole prosecution version as flashed over manner of occurrence as mentioned above.
14. On facts it has to be noted that the contents of the F.I.R. were in the nature of hearsay evidence.
Hidayat Ali the complainant (PW-5) during examination-in-chief deposed that at 5.00 a.m his son Kashif Naveed informed him about the incident. Testimony of PW-5, who deposed about the incident turned out to be hearsay evidence. So the F.I.R. was recorded with a delay and same is based on hearsay, which is fatal to the prosecution version. On the other hand, the complainant (PW-5) deposed in his statement that, "his (the complainant) son Kashif (PW-8) informed him about the occurrence." In the instant case the complainant had not seen the incident. The principal evidence in this case is of PW-8 Muhammad Kashif and PW-9 Shah Muhammad.
Muhammad Kashif (PW-8) deposed in his statement that"I informed my father the true facts of the occurrence as were witnessed by me". Contrary to this Muhammad Kashif PW-8) while denying the suggestion deposed that "It is incorrect that in my statement before police I did not mention that I informed my father. Confronted with Ex.PB wherein not so recorded." We have also noted that during examination-in-chief said PW-8 deposed that Shah Muhammad asked to inform his father (PW-8 Muhammad Kashif) but he did not depose that he went to his house and informed his father (the complainant) about the incident at about 5.00 a.m. Whereas while appearing in witness box as PW-8 he deposed that "At about midnight Abid, Shaukat, Gulzar and Ali Hassan present in the Court along with two unknown persons, armed with pistols, came at our "Dera". During cross- examination, he (PW-8) deposed that "It is in correct that I had not got recorded in my statement before police that at mid night the accused persons came to our Dera". Confronted with Ex.PB, wherein the word mid night was not written." Whereas Hadayat Ali (PW-5) deposed during examination-in-chief that:- "At 5 .00 a.m my son Kashif Naveed informed me that Abid, Shaukat, Gulzar and Ali Hassan accused present in the Court armed with pistols along with two unknown persons came at our `Dera' at 2.00 a.m". Contrary to this during cross-examination he deposed which reads as under that, "I did not tell the police in my statement Ex.PA that Kashif informed me that at 2.00 a.m the accused came at his "Dera". PW-8 in his statement deposed- that "our Dera is at a distance of 4-squares from our village". He further deposed that "At about 3:30 a.m, I proceeded from place of occurrence to inform my father". Whereas PW-9 Shah Muhammad deposed that, "the accused guarded us till 2.00/2.30 a.m". It is admitted fact that the residence of PW-8 was at a distance of 4-squares from the place of occurrence to inform his father at 3:30 a.m but he reached his house at 5.00 a.m. The inordinate delay of about 1.00/1 1/2 hours from the time of leaving of accused persons i.e 2.00/2 1/2 remained unexplained and renders the whole of the prosecution version doubtful.
15. Hidayat Ali (PW-5) admitted as correct that he did not mention in his statement before police Ex.PA that Abid & Ali Hassan wrapped string around the neck of Asad Abbas deceased and pulled it that he did not inform the police at the time of statement Ex.PA that one unknown person had caught hold Asad Abbas deceased from his legs". Thus, the case of the prosecution is full of inherent contradictions and discrepancies, as detailed above, that it no longer remains credible and trustworthy to act upon the testimony of the witnesses.
16. The post-mortem in this case was also conducted with delay of 12 to 24 hours from the death of Asad Abbas. The occurrence in this case took place on 17.04.2009 at mid night. The prosecution witnesses have not given the time of death of Asad Abbas. It is evident from the perusal of the evidence that post-mortem of the deceased Asad Abbas was conducted on 17.4.2009 at 3:30 p.m. whereas Ghulam Ghous (PW-2) deposed that "the dead body was reached at mortuary at 9:00 a.m. at Allied Hospital." Muhammad Nawaz (PW-4) deposed that "we proceeded from lace of occurrence to hos ital at about 7:00 a.m. after about an hour we reached in the hospital for post- mortem." Abdul Majeed, S.I. (PW-11) deposed in his statement that "at about 7:00 a.m. the dead body was alighted from the tree. At about 9:00 a.m. the dead body was dispatched for post- mortem." So it is evident that the post-mortem of the deceased-Asad Abbas was conducted with inordinate delay of nine hours from the time of reporting the incident and 12 to 24 hours from the alleged occurrence. It also casts doubts about the prosecution story. So far as the presence of undigested food is concerned, it reveals .that the victim died within two to four hours of taking the last meal. As per Modi's Medical Jurisprudence & Toxicology 22nd Edition, "the rate of emptying of stomach varies in healthy person. It varies in man from 2, 5-6 hours." The people living at Dera would normally take meals soon after sunset and go to bed earlier and get up early before dawn to attend to the chores of village Dera life. This shows that death had occurred much earlier to the time mentioned by the prosecution, if we apply the yardstick as spoken by PW-6 that probable time between death and post-mortem was 12 to 24 hours, the death had occurred prior to 3.30 a.m. and backwards to 3.30 p.m. because post-mortem report (Exh.PE) indicates presence of undigested food particulars. It indicated that the incident did not take place as stated by the prosecution.
17.Shah Muhammad (PW-9) has separate dera where he used to sleep. He (PW-9) in his statement deposed that "when we had a job at the dera of my maternal uncle, we sleep at that dera." It is an admitted fact that Hadayat Ali (PW-5)/complainant is uncle of Shah Muhammad (PW-9). Muhammad Aslam, S.I. Investigating Officer (PW-12) deposed that, the deceased and his younger brother used to do the job at the dera of the coin elainant and none else." In order to justify his presence at the place of occurrence, he has not stated that for which job he was therein, therefore, he is a chance witness.
18.Now coming to motive part of the prosecution, the complainant (PW-5) while appearing before the learned trial Court has deposed regarding the motive that, "Motive behind the occurrence was that Abid accused aresent in the Court had that Asad deceased had illicit relations with wife of Abid." The prosecution did not produce any witness before police about motive part. Abdul Majeed, S.1. (PW-11) deposed that, "I did not record anything about the alleged illicit relations inter-se deceased and accused Abid's wife nor I recorded statement of wife of Abid accused in this respect." On the other hand, Muhammad Aslam, S.1 (PW-12) that "in my investigation, I found that the character of deceased was loose. Volunteered he had illicit relations with wife of Abid accused. There was no FIR registered in respect of illicit relations of Asad deceased with the wife of Abid prior to the occurrence. There was no FIR regarding fight between the accused present in the Court and deceased Asad Abbas prior to the occurrence." As far as the plea of Abid-appellant is concerned, he denied that his wife has any illicit relations with deceased.
Since the complainant and eye-witnesses alleged motive for occurrence but tilrey failed to produce any witness to prove motive part of the occurrence. On the other hand, Hadayat Ali (PW- 5.) admitted that "it is correct that a case for re aration of dacoit was registered against my sons."
Kashif (PW-8) also admitted that criminal cases were registered against him and his deceased brother at Police Station Saddar, Faisalabad. In the same lines, Shah Muhammad (PW9) deposed that "It is correct that 7-8 FIR's were registered against Asad Abbas, deceased and Kashif." Criminal cases registered against the deceased-Asad Abbas. From the above it reveals that the deceased was a man of questionable character. Therefore, the evidence led by the prosecution in connection with motive is not sufficient for placing reliance on the testimonies of the witnesses. As the evidence on the motive part and suggestions put by the defence regarding questionable character of the deceased and Kashif (PW-8) suggested that Investigating Officers i.e. PW-11 and PW-12 had deliberately concealed the criminal cases registered against the deceased and Kashif (PW-8) as available on record as Exh.DC to Ex.DH. This again goes to adversely affect credibility of the prosecution version.
19. All the above narrated facts and circumstances lead this Court to only one conclusion that the whole prosecution case seems to be hinging upon conjectures and surmises and it had badly failed to lead incriminating, corroborative/independent evidence to bring home guilt of the accused in the case of capital charge. The learned trial Court was not justified in convicting the appellants while basing upon such un-trustworthy, un-corroborated evidence and conviction passed by the learned trial Court in the circumstances is against all cannons of law recognized for the dispensation of criminal justice. As per dictates of law, benefit of every doubt is to be extended in favour of the accused. In the case of "Muhammad Akram v. The State" (2009 SCM R 230), it has been held as under-- "--Benefit of doubt----Principles--- 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."
20. It is golden principle of law that the Court should let off hundred guilty but should not convict one innocent person. In the case of "Ayub Masih v. The State" (PLD 2002 SC 1048), it has been held by the Hon'ble Supreme Court of Pakistan that:-- "---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 can not 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".
In simple words it means that utmost care should be taken by the Court in convicting an accused.
It has further been held in "The State v. Mushtaq Ahmed" (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".
21. The upshot of the above discussion is that the prosecution had bad by failed to bring home charge against the appellants beyond any reasonable doubt, therefore, in the interest of safe administration of Criminal Justice, Crl. Appeal No. 1362 of 2010 filed by Abid, Shaukat, Gulzar and Ali Hassan, appellants is accepted in to. The sentence awarded by the learned Additional Sessions Judge, Faisalabad vide judgment dated 20.05.2010 is set aside and the appellants are acquitted of the charge. The appellants-Abid, Shaukat, Gulzar sons of Muhammad Baksh and Ali Hassan son of Muhammad Amin are ordered to be released forthwith, if not required in any other case. Murder Reference No. 445 of 2010 is answered in the negative and the sentence of death awarded to Abid son of Muhammad Baksh, Caste Muslim Sheikh, resident of Gulshan Raheem Colony, Chak No. 215/RB, Faisalabzad (convict) is Not Confirmed.
22. So far as Criminal Revision No. 762 of 2010 seeking enhancement of sentence of Respondents No. 1 to 3-Shaukat, Gulzar and Ali Hassan is concerned, for the above-stated reasons, the same has no weight, which is accordingly dismissed.