' SYED SHAHBAZ ALI RIZVI, J.---This judgment shall dispose of Criminal Appeal No.2191 of 2010 titled as Iftikhar Ahmad etc. v. The State etc. Filed by Iftikhar Ahmad and Mst. Musarrat Bibi (appellants) against their convictions and sentences and Murder Reference No.576 of 2010 titled as The State v.
Iftikhar Ahmad transmitted by the learned trial court for confirmation or otherwise of the sentence of death awarded to Iftikhar Ahmad (appellant), as both these matters have arisen out of the same judgment dated 14.10.2010 passed by the learned Sessions Judge, Gujrat in case FIR No. 518 dated 01.11.2004, offences under sections 302, 148 and 149, P.P.C. Registered at Police Station Kunjah District Gujrat whereby, both the appellants were convicted under sections 302(b)/149, P.P.C., as a result whereof, Iftikhar Ahmad (appellant) was sentenced to death whereas, Mst. Musarrat Bibi (appellant) was sentenced to imprisonment for life. Both the appellants were directed to pay Rs.2,00,000/- each as compensation to the legal heirs of the deceased as envisaged under section 544-A of the Code of Criminal Procedure, 1898 and in default thereof to undergo simple imprisonment for six months each. They were further convicted under section 148, P.P.C. And both of them were sentenced to rigorous imprisonment for three years. Mst. Musarrat Bibi (appellant) was awarded the benefit of section 382-B of the Code of Criminal Procedure, 1898.
The learned trial court, however, through the same judgment, acquitted Mirza Khalid Baig co- accused whereas, Waqas Ahmad and Gulzar Ahmad accused were declared proclaimed offenders.
2. Brief facts of the case, as disclosed by Muhammad Ashraf, complainant (since dead) in his statement (Exh-PK) on the basis of which the formal FIR (Exh-PL) was registered, are that he was resident of Shadiwal Mehmood Ki Wand and labourer by profession. On 01.11.2004, at about 10.00 a.m., he along with Ijaz Akbar (given up being dead) and Muhammad Nawaz (PW-6) was going to Shadiwal from Mehmood Ki Wand and his real brother Muhammad Afzal (deceased) was following them on motorcycle bearing registration No.GTG-3733 Honda 125 as he had obtained contract of construction of street in Sandhar. When he reached near the Dera of Rasheed Topa, Iftikhar Ahmad (appellant) armed with Kalashnikov, Waqas (since P.0) armed with Kalashnikov, Muhammad Asif accused .(since dead) armed with .8 MM rifle, Gulzar (since P.0) armed with .8 MM rifle, Mirza Khalid Baig (since acquitted) armed with .30 bore pistol and Mst. Musarrat Bibi (appellant) empty handed, who were already present there, raised lalkara that Muhammad Afzal should not go alive and he be murdered. Upon which, Mst. Musarrat Bibi (appellant) stepped forward and stopped Muhammad Afzal (deceased). Iftikhar Hassan made a burst with his Kalashnikov which landed on the back of Muhammad Afzal. Thereafter, all the accused made indiscriminate firing at Muhammad Afzal (deceased) and the fire shots hit him sunder his left armpit, left cheek, front of chest, left side of neck and inside of left shoulder. They (complainant party) was a little bit ahead of Muhammad Afzal (deceased) and the complainant (since dead), Muhammad Ijaz (given up PW) and Muhammad Nawaz (PW-6) witnessed the occurrence. They, due to fear, did not go ahead and Muhammad Afzal succumbed to the injuries at the spot. The accused persons while making firing fled away towards north.
The motive behind the occurrence, as disclosed by the complainant in FIR (Exh-PL), was the previous enmity between the parties.
3. Iftikhar Ahmad and Mst. Musarrat Bibi (appellants) were never arrested in this case by the police as they were found innocent by the local police, however, they were declared connected with the alleged offence to the extent of section 109, P.P.C. During the investigation conducted by Range Crime Branch, Gujranwala. After completion of investigation, the challan was prepared and submitted before the learned trial court. The learned trial court, after observing legal formalities, as provided under the Code of Criminal Procedure, 1898 framed charge against the appellants and their co-accused Khalid Baig (since acquitted) on 16.06.2006, to which they pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution produced as many as ten witnesses, during the trial whereas, Muhammad Akbar, Inspector was examined as Court Witness. Muhammad Nawaz (PW- 6) furnished the ocular account.
The medical evidence was furnished by Dr. Muhammad Aslam (PW-1) who, on 01.11.2004 at 08.30 p.m., conducted the postmortem examination on the dead body of Muhammad Afzal (deceased) and found the following injuries:-
(1) A firearm entry wound on the back of left side of the chest near medial border of the left scapula at the junction of upper 2/3rd and lower 1/3rd measuring .5 x .5 cm.
(1.A) Firearm exit wound 2 x 3 cm on the Pronto medial aspect of left shoulder.
(2) A firearm entry wound .5 x .5 cm on the middle of back of chest infrd medial to the injury No.1.
(2.A) A firearm exit wound on the right side of chest near middle on its frontal aspect measuring 2 x 2.5 cm.
(3) A firearm entry wound on the back of right side of chest just below the angle of scapula measuring .5 x .5 cm.
(3.A) A firearm exit wound 1.5 x 2 cm on the left side of the chest just below the axilla.
(4) A firearm entry wound .5 x .5 cm on the left side of back of lower part of the chest.
(5) A firearm entry wound measuring .5 x .5 cm on the maxillary area.
(5.A) A firearm exit wound on the right side of the base of the neck 2 x 2.5 cm.
In his opinion, all the injuries were ante-mortem and caused by the firearms. Injuries Nos.2 and 3 were sufficient to cause death causing damage to the vital organs leading to cardio respiratory failure and death in ordinary course of nature. Rest of the injuries were contributories. The probable duration between injuries and death was almost within 2 to 3 minutes whereas, between death and postmortem 10 to 12 hours.
Ahmad Khan Inspector (PW-7), Mushtaq Ahmad Inspector (PW-8) and Muhammad Akbar Inspector (CW-1) are the Investigating Officers of this case. Akhtar Napsh, Draftsman (PW-5) prepared scaled site plan of the place of occurrence whereas, rest of the witnesses are formal in nature.
5. Learned Deputy District Public Prosecutor gave up Shahid Mahmood 569/C, Muhammad Tufail, Muhammad Anwar and Muhammad Akbar SI PWs as being unnecessary whereas, Muhammad Ashraf and Ijaz Akbar PWs being dead and after tendering in evidence report of Chemical Examiner (Exh-PM) and that of Serologist (Exh-PM/1) closed the prosecution case.
6. The statements of the appellants along with their co-accused (since acquitted), under section 342 of the Code of Criminal Procedure, were recorded on 14.07.2010. They refuted the allegations leveled against them and professed their innocence. While answering to a question that "Why this case against you and why the PWs have deposed against you?", Iftikhar Ahmad (appellant) replied as under:- "The complainant and the PWs have falsely implicated me in this case due to ulterior motive. Prior to this occurrence, Mst. Irshad Bibi mother of my wife Musarrat Bibi was murdered and I was complainant of the case. In the said case, Muhammad Arshad brother of deceased along with two other relatives were awarded death sentence by the learned trial court. They were lingering in death cell. The complainant party pressurizing me and my wife for compromise in the said case in order to save the lives of those persons which were lying in death cell which was refused by me and my wife. Complainant and PWs have falsely implicated me in this case. The complainant and PWs are inter se related. I was not present at the place of occurrence at the time of occurrence.
Prior to this occurrence I was behind the bars in connection with case FIR No.434 dated 27.10.2004 under section 13/20/65 Arms Ordinance in police station Malikwal and was released on bail from jail on 03.11.2004. 1.0. Also verified my plea of alibi from the Superintendent District Jail, Mandi Bahauddin and found it correct and on the basis of cogent evidence I was declared innocent up to the level of DSP."
To the same question, Mst. Musarrat Bibi replied as under: - "In fact prior to this occurrence my mother Irshad Bibi was murdered and a criminal case No.2 of 2003 under sections 302, 148, 149, P.P.C. Was got registered by my husband co-accused Iftikhar Ahmad against Arshad brother of deceased and two cousins. In that case Arshad was awarded death penalty by trial court and Arshad was in death cell during the days of present occurrence.
Complainant party was pressurizing me and my husband for compromising but we flatly refused this offer. Finding no other way they implicated me and my husband falsely to take revenge for not entering into compromise with them. Being close relative of deceased all PWs have deposed against me falsely. I am innocent prior to the occurrence I was admitted in the hospital. My plea of alibi was verified by I.O. By collecting documentary evidence and found it correct. Deceased was vagabond having enmity with different persons of locality."
7. The appellants neither opted to make statements on oath as provided under section 340(2) of the Code of Criminal Procedure, in dispro of of the allegations levelled against them nor did they produce any evidence in their defence.
8. The learned trial court vide its judgment dated 14.10.2010, found the appellants guilty, convicted and sentenced them as mentioned and detailed above.
9. Learned counsel for the appellants contends that there is delay of about two hours and twenty- five minutes in reporting the matter to the police without any explanation; that the prosecution has produced only one witness to furnish ocular account as complainant Muhammad Ashraf and Ijaz Akbar alleged eye-witnesses of the occurrence had died; that there is no corroboration available on the record to support the statement of Muhammad Nawaz (PW-6); that ocular account is in conflict with the medical evidence; that only lalkara is attributed to Mst. Musarrat Bibi (appellant) whereas, nothing was recovered from Iftikhar Ahmad (appellant) during the course of investigation; that during the investigation, it has been found that appellant Iftikhar Ahmad was confined in District Jail, Mandi Bahauddin on the day of occurrence and similarly, Mst. Musarrat Bibi appellant was admitted in Hashmi Heart Care Center being a heart patient; that motive is always considered a double edged weapon as if it can be a reason for committing an offence, the same can also be a reason for false implication; that the prosecution remained fail to prove its case against the appellants beyond the shadow of reasonable doubt; that the appeal may be accepted and the appellants may be acquitted; that Murder reference may be answered in the negative.
10. Conversely, learned District Public Prosecutor opposes this appeal on the grounds that delay in reporting the matter to the police, in the circumstances of the case, is not material; that solitary evidence is sufficient to record conviction if the same is confidence inspiring and the statement of Muhammad Nawaz (PW-6) is unimpeachable and trustworthy sufficient to record conviction which is duly supported by the medical evidence; that non-recovery of crime weapon at the instance of Iftikhar Ahmad (appellant) is not sufficient to discredit the cogent and straightforward ocular account furnished by Muhammad Nawaz (PW-6); that motive is admitted by the appellants; that the prosecution has fully proved its case against the appellants; that the appellants have not led any evidence to substantiate their plea of alibi; that the appeal may be dismissed and Murder Reference be answered in the affirmative.
11. None is present on behalf of legal heirs of complainant Muhammad Ashraf or the deceased Muhammad Afzal despite repeated notices, therefore, we proceed to decide this appeal after hearing the arguments of learned counsel for the appellants and learned District Public Prosecutor.
12. We have heard the learned counsel for the appellants, learned District Public Prosecutor and also scanned the record with their able assistance.
13. Having inimical back ground with the appellants, Muhammad Nawaz (PW-6), the only eye- witness produced by the prosecution, as Muhammad Ijaz Akbar and Muhammad Ashraf, complainant were given up being dead, is a chance witness too. The postmortem examination of the deceased was conducted at 08.30 p.m. And the delay in this regard is not explained by the prosecution, however, statement of Altaf Hussain SI (PW-2) reveals that the police papers were sent to the hospital to be handed over to the Medical officer to start the postmortem examination of the deceased with delay i.e. At 5/6 p.m. Relevant part of his cross examination is as under:- ".....I escorted the deadbody at 12.10 pm (noon time). I reached in Aziz Bhatti Shaheed Hospital at about 12.40 pm. Again said Shahbaz Ahmad SI sent the relevant papers through Muhammad Aslam Constable from the police post Shadiwal at about 5/6 pm, A and I handed over those relevant papers to doctor and then postmortem examination was conducted..."
This emanates that after the occurrence, intervening time was consumed in preparation of police papers required to initiate the postmortem examination by the Medical Officer and normally it is done by the police when deliberation and consultation is required. The unexplained delay in postmortem examination as mentioned supra also reflects that as per prevailing trend possibility cannot be ruled out that innocent persons have been implicated in this case along with the guilty ones. Reference in this regard is made to the cases of Muhammad Riaz v. The State (2009 PCr.L.I 1022 Lahore), Irshad Ahmed v. The State (2011 SCM R 1190) and Nazeer Ahmad v. Gehne Khan and others (2011 SCM R 1473). In the case of lrshad Ahmad (2011 SCM R 1190), the Hon'ble Supreme Court was pleased to observe as under:- "3...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...
We have noticed that both the appellants had taken the plea of alibi from the very inception of this case during the investigation. All the Investigating Officers of local police as well as the Regional Investigation Branch found the same as correct as is evident from the statement of Ahmad Khan, Inspector (PW-7), the Investigating Officer produced by the prosecution itself has stated in his examination in chief as under:- "...I found that Waqas Ahmad and Gulzar Ahmad (Both P.Os) were involved in the murder of Muhammad Afzal deceased of this case. I also found during my investigation that accused present in court were not present at the place of occurrence at the time of occurrence..."
The said witness neither got declared hostile nor was cross-examined by the prosecution. Similarly, Muhammad Akbar, Inspector (CW-1) who investigated this case since 25.01.2005 and verified the plea of alibi taken by both the appellants through Exh-CW-1/1 and Exh-CW1/2 according to which Mst. Musarrat Bibi appellant remained hospitalized in Hashmi Heart Care, Mandi Bahauddin between the period of 28.10.2004 to 06.11.2004 while lftikhar Ahmad (appellant) remained in District Jail, Mandi Bahauddin during the period of 28.10.2004 to 06.11.2004 in connection with case FIR No.434/2004 registered under Section 13 of the Arms Ordinance, 1965 at Police Station Malikwal.
Though, the defence has not produced the original record of jail and Police Station concerned regarding registration of said FIR and Hashmi Heart Care, Mandi Bahauddin to substantiate their plea of alibi before the learned trial court yet the same stands verified by the prosecution's own witnesses Ahmad Khan, Inspector (PW-7), Muhammad Akbar, Inspector (CW-1) and Muhammad Nawaz (PW-6), the sole eyewitness who during his cross examination has also admitted as under:- "...It is correct that during the investigation conducted by different police officials including Range Crime, Gujrarrwala, were found not involved in this case. It is correct that during investigation Iftikhar Ahmad, Mst. Musarrat Bibi and Asif Mahmood (P.0) produced documentary evidence about their innocence. It is correct that Iftikhar Ahmad and Asif Mahmood (P.0) produced documentary evidence before the I.Os in this regard that Iftikhar Ahmad accused was in District Jail Mandi Bahauddin and he was involved in a case FIR No.434 dated 27.10.2004. Similarly according to documents Asif Mahmood accused was also found involved in case FIR No.433 dated 27.10.2004.
Similarly Mst. Musarrat Bibi was admitted in Mandi Bahauddin Hospital on 28.10.2004 and was discharged from the hospital on 06.11.2004. It is correct that during investigation their plea of alibi and evidence produced by them and on the basis of this evidence the accused were not found involved in this case and it was also found true that Iftikhar and Asif Mahmood were in jail Mandi Bahauddin prior to 01.11.2004. Similarly Mst. Musarrat Bibi produced documentary evidence about her admission in hospital prior to present occurrence and she too was not found involved in the case by the I.Os." (Underlining is ours)
We are of the opinion that even if the defence has not led evidence to prove its plea of alibi but at least the already available supra discussed evidence has caused dent in the prosecution case sufficient to create reasonable doubt in its veracity to the extent of both the appellants.
There is no cavil to the established principle of law that conviction can be recorded on the basis of single witness yet when the witness is having inimical background with the accused, it requires strong corroboration from any independent source that is lacking in the instant case. The sole statement of Muhammad Nawaz (PW-6) in the backdrop of blood feud between the parties who is even otherwise, a chance witness is not trustworthy without any strong independent corroboration that is missing. Moreover, during his statement he could not justify his presence at the scene of incident at the relevant time as is evident from the following part of his statement during the cross examination:- "...It is correct that during investigation I and PWs have not stated to the police the purpose of our visit to village Sandaar. During investigation no person from village Sandaar was produced by us to verify our visit to village Sandaar. It is correct that during investigation we and the complainant of this case did not produce any type of proof about the construction of lane in village Qildar by Afzal...We and the deceased gathered as per chance..."
This emanates the doubt qua the presence of Muhammad Nawaz (PW6) at the scene of occurrence.
Another important aspect of this case is that the complainant Muhammad Ashraf, Ijaz (given up PWs being dead) and Muhammad Nawaz (PW-6) were the accused persons in case of murder of Muhammad Faisal brother of appellant Musarrat Bibi and brother-in-law of appellant Iftikhar Ahmad, as admitted by Muhammad Arshad (PW-9), which according to the prosecution also became the motive to the commission of murder of Muhammad Afzal (deceased). Keeping in view the alleged motive and the long enmity between the parties, had all the three PWs been present at the scene of occurrence and had the appellants been the assailants, the witnesses would have definitely been attacked by them and would not have been spared to become eyewitnesses against them. In view of above discussion, we are of the view that the ocular account is not confidence inspiring and trustworthy qua the culpability of the present appellants.
So far as the contention of Ahmad Khan, Inspector (PW-7) and Muhammad Akbar, Inspector (CW- 1) regarding the abetment of present appellants in perpetration of murder of Muhammad Afzal (deceased) is concerned, we have observed that both the witnesses have also admitted that they could not collect any evidence against the appellants regarding the abetment in commission of murder of Muhammad Afzal (deceased). We have observed with concern that in the instant case, the Investigating Officers have not efficiently and E competently investigated this case as they remained fail to collect the evidence qua the abetment of Iftikhar Ahmad and Musarrat Bibi (appellants) who allegedly managed the murder of deceased through both the absconding accused persons.
14. Insofar as the medical evidence is concerned, it is by now well settled law that medical evidence may confirm the ocular evidence with regard to the seat and nature of injury, the kind of weapon used in the occurrence but it would not itself identify the accused. Reference in this respect may be made to the case of Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others (PLD 2009 SC 53).
Similar view was taken by the Hon'ble Supreme Court of Pakistan in the cases of Mursal Kazmi alias Qamar Shah and another v. The State (2009 SCM R 1410) and Altaf Hussain. v. Fakhar Hussain and another (2008 SCM R 1103). Moreover, in isolation, the same does not come forward to rescue the prosecution case, which to the extent of the appellants, otherwise is standing on very weak footing.##TE$##
15. Nothing was recovered during the course of investigation at the instance of both the appellants.
16. As regards the motive set up by the prosecution, we are of the view that it is a double edged weapon, if it can be a reason to commit the murder as alleged by the prosecution, the same can also be a ground for false implication of present appellants.
It is by now well established and cardinal principle of law that it is the prosecution which is supposed to prove its case beyond reasonable doubt and this responsibility squarely rests on the shoulders of prosecution and the prosecution cannot take benefit of any weakness of defence. In the instant case, the prosecution remained fail to discharge its responsibility of proving the case against the appellants. The existence of a single circumstance which creates reasonable doubt regarding the prosecution case, the same is sufficient to give benefit of the same to the accused, whereas, the instant case is replete with circumstances which have created serious doubts about the prosecution story. In the case of Tariq Pervez v. The State (1995 SCM R 1345), the Hon'ble Supreme Court of Pakistan, at page 1347, was pleased to observe as under:- "5. ...The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts.
If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right."
In Ayub Masih v. The State (PLD 2002 SC 1048), at page 1056 the Hon'ble Apex Court has been pleased to observe as under:- "....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". 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."
The Hon'ble Supreme Court of Pakistan while reiterating the same principle in the case of Muhammad Akram v. The State (2009 SCM R 230), at page 236, observed as under:- "13. ...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."
17. In the light of above discussion, we are of the view that the prosecution has failed to prove its case against the appellants beyond shadow of reasonable doubt, therefore, we accept Crl. Appeal No.2191 of 2010 filed by Iftikhar Ahmad and Mst. Musarrat Bibi (appellants), set aside their convictions and sentences recorded by the learned trial court vide judgment dated 14.10.2010 and acquit them of the charge levelled against them. Iftikhar Ahmad (appellant) is in custody, he be released forthwith if not required to be detained in any other case whereas, Mst. Musarrat Bibi (appellant) is on bail, she is discharged of her bail bond and surety is released.
18. Murder Reference No.576 of 2010 is answered in the NEGATIVE and the sentence of death of Iftikhar Ahmad (convict) is NOT CONFIRMED.