SADAQAT ALI KHAN, J.---This single judgment shall dispose of Criminal Appeal NoN6 of 2011 filed by Gul Muhammad alias Gulla present appellant and Murder Reference No.42 of 2011 sent by the trial Court for confirmation of the death sentence of appellant Gul Muhammad alias Gulla or otherwise as both matters have arisen out of the same judgment dated 26-7-2011 passed by learned Additional Sessions Judge, Sadiqabad District Rahimyar Khan according to which the present appellant and his co-accused were convicted and sentenced as under:--
(1) Gul Muhammad alias Gulla was convicted under section 302,b), P.P.C. And sentenced to death for committing Qatl-i-Amd of Muhammad Asif deceased along with payment of fine Rs. 50,000 and in default thereof further undergo six months S.I. The fine if recovered will be given to the legal heirs of the deceased.
(2) Zahoor Ahmad was convicted under section 324, P.P.C. And sentenced to three years R.I. For committing attempt of Qatl-i-Amd of the injured persons Saif Ullah, Zia Ullah and Riasat Ali along with payment of fine Rs.10,000 and in default thereof further undergo two months S.I.
(3) Shabbir Ahmad was convicted under section 324, P.P.C. And sentenced to three years R.I. For committing attempt of Qatl-i-Amd of the injured persons Saif Ullah, Zia Ullah and Riasat Ali along with payment of fine Rs.10,000 and in default thereof further undergo two months S.I.
Note: Zahoor Ahmed and Shabbir Ahmad convicts did not file appeal against their conviction and they have served out their sentences and now have been releated by the jail authority on 26.7.2011 on expiry of their substantive sentences.
' Benefit of section 382-B, Cr.P.C. Was also extended to the accused persons by the learned trial Court in case FIR No.294 dated 07.12.2004 under sections 302, 324, 392, 109, 148/149, P.P.C. Police Station Kot Sabzal District Rahimyar Khan.
2. The facts of the case has been stated by Saif Ullah complainant/P.W.1 real brother of Muhammad Asif deceased in his statement before the learned trial Court and same statement is hereby reproduced for narration of the facts:-- "I had my personal land in Mauza Kot Sanjar Khan where I am residing with my parents and family in our own house. About 6 years back at 11:30 p.m. I along with my brother Asif deceased, my father Zia Ullah P.W. And my uncle Riasat Ali P.W. Were asleep in our house. On the barking of dogs we woke up and came out of house to know the reason of barking of dogs. We observed there 7/8 persons standing outside the house to commit theft. Out of said persons Gul Muhammad, Shabbir and Zahoor are present today in this court as accused. Gul Muhammad accused now present in the Court was armed with Kalashnikov Shabbir present in Court was armed with Sota whereas Zahoor now present in the Court was also armed with sota. The other accused were also armed but they are POs. And I can identify them why they will be arrested and produced before me. We raised lalkara and moved towards them to apprehend them. In the meantime Gul Muhammad alias Gulla fired at Muhammad Asif deceased which hit on his left thigh, Shabbir gave sota blow to me and Zahoor gave sota blows to my father whereby they both were injured. My uncle Riasat Ali also received injuries at the hands of accused who holding sotaas including POs. I received sota as well as pistol butt injuries at my head and other parts of body which were caused by the accused persons indiscriminately. There was electric chargeable lamp available with us whereby we easily conceived the features of the accused persons in our minds due to which I have identified the - accused persons now present in the court today in court as well as during identification parade. On our hue and cry Muhammad Asghar and Naseer Ahmed PWs as well as other inhabitants of the area also reached the spot".
3. After registration of the case investigation started and on completion of the investigation, challan was submitted in the trial Court.
4. Learned trial Court after observing legal formalities provided under the Criminal Procedure Code framed the charge on 04.04.2008 against present appellant Gul Muhammad alias Gulla and his co-accused namely Zahoor Ahmad and Shabbir Ahmad under sections 302, 324, 148/149, P.P.C. To which they pleaded not guilty and prosecution evidence was summoned.
5. -Prosecution produced Saif Ullah complainant as P.W.-1, Ziaullah P.W.2, Riasat Ali PW3, Naseer Ahmed P.W.-4, Muhammad Asghar P.W.-5, Dr. Rehm Din SMO P.W.-6, Saif-ul-Islam HC P.W.-7, Habibullah SI P.W.8, Makki Shah Constable P.W.-9, Khalil Ahmed Kambo P.W.-10, Shafquat All Revenue Patwari P.W.-11, Ghulam Rasool Si P.W.-12, Naveed Mumtaz Inspector P.W.-13, Zahoor Rabi SI P.W.-14, Liaquat Ali SI P.W.-15 Nisar Ahmed Constable P.W.-16 whereas P.W. Namely Aziz Ullah Inspector was given up by the prosecution being unnecessary and tendered in evidence copies of medical reports Ex.PA to Ex.PD, injury plan Ex.PD/1, post mortem report Ex.PE, inquest report Ex.PE/II, statement of Saifullah complainant Ex.PF (Ex.PF/1), FIR Ex.PF/II, recovery memo of last worn clothes of the deceased Ex.PH, recovery memo of blood stained earth Ex.PI, recovery memo of empty cartridges Ex.PJ, site plan Ex.PL, application for identification parade Ex.PM, recovery Memo of Kalashnikov Ex.PP, report of Chemical Examiner Ex.PR, report of Serologist Ex.PR/1, application to Magistrate Ex.PS and closed the prosecution evidence.
6. Medical evidence was furnished by Dr. Rehm Din SMO RHC Sanjarpur *P.W.-6 who stated that on 07.12.2004 at about 09:00 a.m., he conducted postmortem examination on the dead body of Muhammad Asif deceased and observed as under:-- "External Appearance ' A dead body of a young man aged 18/20 years wearing light green colour shalwar and qameez rigor mortis and post mortem staining were present.
Injuries.
1) A circular wound of entry 1 cm x 1 cm on the medial side of left leg. Wound is 15 cm below left pubic turbcle.
2) An elliptical wound of exit 7 cm x 4.5 cm on lateral side of left leg. Wound is at the level of injury No.l.
Cranium and spinal cord. And Thorax.
All healthy and heart as well as pericardium empty.
Abdomen.
' All healthy and stomach contains semi digested food and bladder was contained two ounces urine.
Muscle, bones and joints.
' Muscle of left thigh of injured and on dissection of left thigh the left femoral artery found sweared.
Remark by the medical officer.
' In my opinion, the cause of death in this case was shock and haemorrhage due to injury No.1 and injury No.2. Injuries Nos. 1 and 2 individually and collectively were sufficient to cause death in ordinary course of nature. Injuries Nos. 1 and 2 were ante mortem and caused by fire arm.
Probable time elapsed betwon injuries and death was 1.5 or 2 hours. In between death and post mortem was within 8 to 9 hours"
7. On the other hand, statements of present appellant and his co-accused were recorded under section 342, Cr.P.C. Who refuted the allegations so leveled against them and Gul Muhammad alias Gulla present appellant has not opted to appear as a witness under section 340(2), Cr.P.C. And also did not produce the defence evidence and in reply to question No.12 'why this case against you and why the PWs deposed against you? The appellant Gul Muhammad alias Gulla replied as under:-- "Complainant party involved many persons in this case namely Maqsood Kobar, Abdul Wahid etc, according to prosecution evidence, complainant party has involved me in this case and identified me on the asking of police. PWs are close relatives of the complainant and deceased. 1 am innocent"
8. After conclusion of the trial, learned trial court convicted the present appellant Gul Muhammad alias Gulla and his co-accused namely Zahoor Ahmad alias Juroo and Shabbir Ahmad with above stated sentence through judgment dated 26.07.2011. Hence this appeal.
9. Learned counsel for the appellant contended that:--
(i) the judgment of the trial court dated 26.07.2011 is against law and facts on the file and is liable to be set-aside.
(ii) that the prosecution has failed to prove its case against the present appellant as there are many major discrepancies in the statements of the PWs further there is conflict between ocular evidence and medical evidence and the learned trial court has convicted the appellant on the basis of surmises and conjectures;
(iii) it is contended that the impugned judgment of the trial court is not maintainable in the eyes of law;
(iv) lastly submitted that appeal may be accepted and the judgement of the trial court dated 26.07.2011 may kindly be set aside and appellant may be acquitted.
10. On the other hand, learned D.P.G. Assisted by the learned counsel for the complainant has vehemently opposed the appeal and requested for dismissal of the same and submitted that:-
(i) prosecution has proved its case beyond any shadow of doubt against the appellant with solid 'evidence and prayed for the dismissal of the present appeal.
11. We have heard the learned counsel for the parties and perused the record.
12. The detail of prosecution case as mentioned in FIR Ex.PF/ II recorded on the statement Ex.PF of Saif Ullah complainant PW-1/ real brother of Muhammad Asif deceased has already been given in paragraph No. 2 of this judgement, therefore, there is no need to repeat the same.
13. According to the FIR Ex.PF/II occurrence took place on 07.12.2004 at 11-1/2 p.m. (winter season) and the place of occurrence is at a short distance from the house of Saif Ullah complainant PW-1 real brother of Muhammad Asif deceased and not the house of complainant Saif Ullah PW-1 .
14. Relevant portion of his statement Ex.PF on the basis of which FIR Ex. PF/II is recorded is hereby reproduced:- {{URDU TEXT}} 15.In view of the above, present appellant Gul Muhammad alias Gulla is not nominated as an accused in this case, further complainant Saif Ullah PW-1 had not given any description of any accused about their identification marks, structure and physique etc. 16.Zahoor Rabi SI/I.O. Of this case PW-14 stated that on 8.8.2005 he arrested the present appellant Gul Muhammad alias Gulla who was already confined in Police Station Ubaro District Gotki Province of Sindh and got him transferred in the Province of Punjab District Rahimyar Khan Tehsil Sadiqabad and sent him jail through concerned Magistrate of Sadiqabad for the Purposeof identification parade. Identification parade was held on 15.8.2005 for the identification of present appellant Gul Muhammad alias Gulla under the supervision of Khalil Ahmed Kambo Special Judicial Magistrate PW-10 in which Naseer Ahmed PW-4 and Muhammad Asghar PW-5 alleged eye-witnesses had identified present appellant Gul Muhammad alias Gulla.
17. It is important to note here that Saif Ullah PW-1 is real brother, Zia Ullah injured PW-2 is real father and Riasat Ali injured P.W.3 is real uncle of Muhammad' Asif deceased and all these three PWs claim themselves to be the eye-witnesses of the occurrence. But, it is very strange that these three PWs did not appear in the identification parade stated above held on 15.8.2005 under the supervision of Khalil Ahmed Kambo Special Judicial Magistrate PW-10 for the identification of Gul Muhammad alias Gulla present appellant and did not identify present appellant in the identification parade.
18. Prosecution absolutely did not give any explanation for not producing these three witnesses in the identification parade for the identification of present appellant Gul Muhammad alias Gulla despite of the fact that these three PWs are closely related to Muhammad Asif deceased and claim to be the eye-witnesses of the occurrence and further according to the prosecution Zia Ullah PW-2 real father of Muhammad Asif deceased and Riasat Ali PW-3 real uncle of Muhammad Asif deceased received injuries during the occurrence.
19. It is very interesting that when these three PWs appear before the trial court, they stated that they have identified Gul Muhammad alias Gulla who was holding a Kalashnikov and made fire with his Kalashnikov upon Muhammad Asif deceased which hit on his left thigh.
20. In view of the above, when these three PWs had not given features of the accused in their statements before the police during the investigation and also were not appeared during the identification parade held on 15.8.2005 for the identification of present appellant Gul Muhammad alias Gulla stated above, their identification in the court on 8.2.2011 with delay of about seven years from the date of occurrence i.e. 7.12.2004 at 11:30 pm is not acceptable, especially, they stated in their statements recorded during the investigation that they had identified accused in the light of the torch. Reliance is placed on case Muhammad Asghar alias Nannah and another v. The State (2010 SCM R 1706) in which Hon'ble Supreme Court of Pakistan has observed at page 1717 as under:- "The learned Deputy Prosecutor-General has also admitted that the accused were unknown to this witness, but he had identified them in the Court, which is sufficient to prove the identity of the appellants. Thus, it is an admitted fact that the appellants were not known to PW.15, therefore, in such a circumstance, the identification of the appellants through PW.15 was essential but no such identification test was held. As such, in the peculiar facts and circumstances of the case, the identification of the culprits in the Court only I thought such witness carries no weight".
21. Further reliance is placed on case Muhammad Afzal alias Abdullah and another v. The State and others (2009 SCM R 436) in which Hon'ble Supreme Court of Pakistan has observed at page 338 as under:-- 'Admittedly, the occurrence took place in the dark hours of the night. It has not been disclosed as to how the witnesses were able to identify the culprits. It can, at the most, be presumed that they were seen in the headlights of the vehicle, however, in, that case the culprits could not have been seen by the PWs more than once and that too, for a while. Though it is alleged that the deceased as well as the complainant were fired at by one of the culprits yet, it has not been pointed out as to who was he? Nor his description by appearance was given in the FIR. Absence of such details in the report/FIR militates against bona fides of the prosecution and greatly mars penitentiary value of the test identification parade. It is well settled that when description by appearance of the accused is not given in the report FIR and specific role is not attributed to him, his identification in Court for the first time, in the absence of strong corroboratory evidence, is not safe to be relied upon because by the passage of time memory fades and possibility that an accused might not have been mistakenly picked out is augmented"
22. In view of the above, identification of present appellant Gul Muhammad alias Gulla by Saif Ullah PW1, Zia Ullah PW-2 and Riasat Ali PW-3 in the court during their statements on 8.02.2011 with delay of about seven years from the date of occurrence i.e. 7.12.2004 at 11:30 p.m. (peak of winter season) is not acceptable and evidence of these three PWs is hereby disbelieved.
23. So far identification of Naseer Ahmed PW-4 and Muhammad Asghar PW-5 qua the present appellant Gul Muhammad alias Gulla is concerned, we entertain serious doubt in our minds regarding their identification qua Gul Muhammad alias Gulla during identification parade held on 15.8.2005 under the supervision of Khalil Ahmed Kambo Special Judicial Magistrate PW-10 in which Saif Ullah PW-1 real brother, Zia Ullah PW-2 real father and Riasat Ali PW-3 real uncle of Muhammad Asif deceased had not joined the proceedings in the identification parade without any explanation.
Further, occurrence took place on 7.12.2004 at 11:30 pm when admitted there was dark night and these two witnesses had seen the accused at the time of occurrence in the light of the torch and thereafter did not give any features of the accused in their statements recorded by the police during the investigation.
24. The identification parade was held on 15.8.2005 after the arrest of present appellant. Gul Muhammad alias Gulla whereas occurrence had taken place about seven years ago on 7.2.2004 at 11:30 p.m. Definitely, the memory of a witness would fade away with the passage of time. Reliance is placed on case Muhammad Afzal alias Abdullah v. The State and others (2009 SCM R 436) in which Hon'ble Supreme Court of Pakistan has observed at page 442 as under:-- "Admittedly, the occurrence took place in the dark hours of the night. It is not been disclosed as to how the witnesses were able to identify the culprits. It can, at the most, be presumed that they were seen in the headlights of the vehicle, however, in that case the culprits could not have been seen by the PWs more than once and that too, for a while. Though it is alleged that the deceased as well as the complainant were fired at by one of the culprits yet, it has not been pointed out as to who was he? Nor his description by appearance was given in the FIR. Absence of such details in the report/FIR militates against bona fides of the prosecution and greatly mars penitentiary value of the test identification parade. It is well settled that when description by appearance of the accused is not given in the report/FIR and specific role is not attributed to him, his identification in Court for the first time, in the absence of strong corroboratory, evidence, is not safe to be relied upon because by the passage of time memory fades and possibility, that an accused might not have been mistakenly, picked out is augmented".
25. In view of the above, the evidence of these two PWs Naseer Ahmed PW-4 and Muhammad Asghar PW5 is not believable and same is hereby disbelieved.
26. Recovery of the Kalashnikov Ex.P4 is inconsequential in absence of positive report of FSL.
27. Medical evidence may confirm the ocular evidence with regard to the seat of the injury, nature of the injury, kind of weapon used in the occurrence but it would not connect the accused with the commission of crime". Reliance is placed on case tilted Altaf Hussain and others v. Fakhar Hussain and others (2008 SCM R 1103) in which Hon'ble Supreme Court of Pakistan has observed at page 689 as under:-- "It is also settled law that medical evidence may confirm the ocular evidence with regard to the seat of the injury, nature of the injury, kind of weapon used in the occurrence but it would not connect the accuser with the commission of crime"
28. For the foregoing reasons, the case of the prosecution is not free from doubt and for giving the benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled for the same not as a matter of grace and concession but as a matter of right. Reliance is placed on case titled Muhammad Akram v. The State (2009 SCM R 230) in which Hon Supreme Court of Pakistan has observed at page 235 as under:-- 'the nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right".
29. From the facts and circumstances narrated above, we are persuaded to hold that prosecution has badly failed to bring home guilt of the appellant to the hilt and the learned trial court was not justified in convicting him while basing upon untrustworthy/uncorroborated evidence deposed by interested witnesses which even otherwise is full of material contradiction especially unreliable story deposed by Saifullah complainant/ PW-1, Zia Ullah PW-2, Riasat Ali PW-3, Naseer Ahmed PW-4 and Muhammad Asghar PW-5. Resultantly, salutary principle of benefit of doubt is extended in favour of the appellant. The Criminal Appeal No.336 of 2011 filed by Gul Muhammad alias Gulla present appellant is accepted and conviction and sentence awarded by the learned trial court through judgment dated 26.07.2011 is set aside and the appellant is ordered to be acquitted of the charge in case FIR No.294 dated 07.12.2004 under sections 302, 324, 392, 109, 148/149, P.P.C. Police Station Kot Sabzal District Rahimyar Khan. He is directed to be released forthwith if not required in any other case. Murder Reference No.42 of 2011 is answered in NEGATIVE and death sentence of Gul Muhammad alias Gulla present appellant is NOT CONFIRMED.