' MANZOOR AHMAD MALIK, J.--- ' Muhammad Azeem alias Kalu and Muhammad Saleem alias Chhema, appellants along with their co-accused namely Mohabbat Ali, Liaqat Ali alias Billu (since dead) and Faqir Hussain were tried by the learned Additional Sessions Judge, Lahore, in case FIR No,364/2003 dated 08.12.2003 offence under Sections 302, 109 and 34, P.P.C. Registered at Police Station Faisal Town, District Lahore. Vide judgment dated 04.11.2010, passed by the learned Addl.
Sessions Judge, Lahore, the appellants were convicted under Sections 302(b) and 34, P.P.C. And sentenced as under:-- "under section 302(b)/34, P.P.C. By way of Ta'zir for committing Qatl-e-Amd of Muhammad Aslam to undergo rigorous imprisonment for life and each to pay Rs,2,00,000/- as compensation under section 544-A Cr.P.C. To the legal heirs of the said deceased, in default whereof they shall undergo simple imprisonment for a period of six months in addition to the substantive sentence.\ ' The appellants were extended the benefit of Section 382-8, Cr.P.C. It was also ordered that their sentences shall run concurrently. Through the same judgment, co-accused of the appellants namely Faqir Hussain and Mohabbat Ali were acquitted of the charges by giving them benefit of doubt and no appeal against their acquittal was filed either by the State or by the complainant.
Assailing the above convictions and sentences, the appellants have filed the appeal in hand whereas Mst. Naseem Akhtar, complainant has filed Crl. Revision No,61/2011 for enhancement of the sentence awarded to Muhammad Azeem alias Kalu and Muhammad Saleem alias Chheema respondents Nos.1 and 2 from life imprisonment to death sentence.
2. Precise but relevant facts of the case, as contained in FIR (Exh.PF) registered on the basis of written statement (Exh.PH) of Mst.Naseem Akhtar, complainant (PW.7) are that she was resident of House No,363, Block No,15, Sector B-I, Township, Lahore and her real brother namely Muhammad Aslam was running the business of cars at Maulana Shaukat Ali Road, Faisal Town, Lahore under the name of 'Signal Motors'. On the day of occurrence i.e, 08.12.2003, the complainant along with her son Waseem Abbas (PW.8), maternal nephew Muhammad Nawaz and Sheraz son of Muhammad Aslam were going to Maulana Shaukat Ali Road on Honda Civic Car bearing Registration No,4997-LOV for shopping. At about 1:15 p.m., when they reached near the shop "Pizza Heim" two boys namely Muhammad Saleem alias Chhema and Muhammad Azeem alias Kalu (appellants) sons of Shaukat Ali Gujjar, residents of Township, Lahore, who were already known to the complainant, came from behind on red colour motorcycle Honda CD-70 and intercepted the car by parking motorcycle in front thereof. The car was being driven 'by Muhammad Aslam brother of the complainant and glass of door of driver's side was open. Both the boys alighted from motorcycle took out their pistols and started firing at Muhammad Aslam, which landed on his neck and other parts of body, who became grievously injured. Muhammad Saleem alias Chheema and Muhammad Azeem alias Kalu decamped from the spot while brandishing their weapons Said Muhammad Aslam was being shifted to Jinnah Hospital in injured condition by the complainant, her son Waseem Abbas, Muhammad Nawaz and Sheraz immediately but he succumbed to the injuries on the way.
' Motive behind the occurrence as mentioned in the FIR was that on 8th June, 2001, case FIR No,195/2001 was got registered at Police Station Township, Lahore, against Muhammad Aslam (deceased) and his accomplices for the murder of Shaukat Gujjar father (If Muhammad Saleem alias Chheema and Muhammad Azeem alias Kalu (appellants). It was further averred in the FIR that Muhammad Aslam (deceased) had been released from jail on bail after one year. Due to this grudge, Muhammad Saleem alias Chheema and Muhammad Azeem alias Kalu (appellants) in consultation with their real brother namely Mohabbat Ali Gujjar and paternal uncle Liaqat Ali alias Billu Gujjar had committed the murder of Muhammad Aslam, brother of the complainant.
3. The appellants and their co-accused namely Mohabbat Ali, Liaqat Ali alias Billu (since dead) and Faqir Hussain were indicted by the learned trial court under Sections 302 and 109, P.P.C. Read with Section 34, P.P.C. During the course of trial, Liaqat Ali alias Billu co-accused died and his death certificate was placed on record through the statement of process server vide order dated 26.01.2006. After conclusion of trial, the appellants were convicted and sentenced by the learned trial court as mentioned in para 1 supra whereas Faqir Hussain and Mohabbat Ali co-accused of the appellants were acquitted of the charges by extending them benefit of doubt and no appeal against their acquittal was filed either by the State or by the complainant as conceded by the learned DDPP. Hence this appeal and revision petition.
4. Learned counsel for the appellants, in support of this appeal, contends that the appellants have falsely been implicated in this case; that according to the contents of FIR (Exh.PF), the occurrence took place at 01:15 p.m. On 08.12.2003 and the matter was reported to the Police on the same afternoon at 02:00 p.m. On the basis whereof formal FIR was registered on the same day at 02:25 p.m., however, the other circumstances suggest that the crime was not reported to the Police at the time claimed in the FIR because according to the post mortem report (Exh. PM) autopsy on the dead body of Muhammad Aslam (deceased) was conducted on the next day i.e, 09.12.2003 at 12.00 (midday) and even application (Exh.PT) for issuance of docket was also moved on the next day i.e, 09.12.2003; that the prosecution failed to prove the place of occurrence beyond reasonable doubt as according to the contents of FIR, the occurrence took place at Maulana Shaukat Ali Road (mettaled) near Ravi Hotel and Pizza Heim whereas according to column No,24 of the inquest report of Muhammad Aslam (deceased) the same was prepared in Jinnah Hospital Lahore and in the column No,23 meant for the things present near the dead body five empty bullets have been mentioned; that moreover, according to recovery memo (Exh.PJ) blood was collected from inside the vehicle through cotton, however, in the report (Exh.PW) of Chemical Examiner as well as report (Exh.PX/1) of Serologist earth was sent to the said offices for analysis but none of the prosecution witnesses stated that any earth was collected from the place of occurrence; that presence of the witnesses of ocular account namely Mst. Naseem Akhtar complainant (PW.7) and Waseem Abbas (PW.8) is highly doubtful as according to the visual site plan (Exh.PV) of the place of occurrence she was sitting on front seat with Muhammad Aslam (deceased) whereas Waseem Abbas (PW.8) was sitting on rear seat of the car; that as many as five firearm injuries were caused to Muhammad Aslam (deceased) but the complainant did not receive even a scratch during the occurrence; that it is case of the complainant in the FIR that she along with Muhammad Aslam (deceased), Waseem Abbas (PW.8) as well as Muhammad Sheraz and Muhammad Nawaz (PWs since given up) were going to liberty market for shopping, however, no specific purpose/ occasion of shopping for which five persons were going together was disclosed either in the FIR or before the learned trial court and the reason of mere shopping without disclosing the eve thereof does not inspire confidence; that according to the contents of the FIR and statements of both the witnesses of ocular account one Muhammad Sheraz son of Irshad Ahmad, who was step son of Muhammad Aslam (deceased) was also sitting in the same vehicle, however. There is no mention that said Muhammad Sheraz was injured during the occurrence; that MLC of said Muhammad Sheraz is available on the record as (Exh.PG) and Dr. Muhammad Tariq (PW.6) who medically examined him on 11.12.2003 was produced by the prosecution, who categorically stated that the injured was brought to the emergency by the Police with history of fight on 08.12.2003; that motive behind the occurrence as mentioned in the FIR and narrated by both the witnesses of ocular account while appearing before the learned trial court was that in June, 2001, case for murder of father of the appellants was registered against Muhammad Aslam (deceased) and others and to settle their grudge the instant incident was committed by the appellants; that in a case of admitted enmity, motive is a double edged weapon because if it could be a reason for the appellants to commit murder of Muhammad Aslam (deceased) then at the same time it could be a reason for the complainant's side for false implication of the appellants; that no weapon was recovered .At the instance of Muhammad Saleem alias Chheema (appellant No,2) and he was found innocent during the successive investigations whereas the alleged recovery of a pistol (P.5) at the instance of Muhammad Azeem alias Kalu (appellant) which was taken into possession vide recovery memo (Exh.PB) does not advance the case of the prosecution as according to the report of Forensic Science Laboratory (Exh.PX) the empties allegedly recovered from the place of occurrence had not been fired through the pistol (P.5) allegedly recovered at the instance of Muhammad Azeem alias Kalu (appellant No,1); that similarly recovery of motorcycle at the instance of Muhammad Azeem alias Kalu (appellant) which was taken into possession vide recovery memo (Exh.PN) is also doubtful in nature because firstly registration number of the motorcycle is not mentioned in the FIR; secondly according to the contents of the FIR the appellants came on red colour CD/70 motorcycle, however, according to recovery memo (Exh.PN) as well as statement of the attesting witness namely Safdar Ali Constable (PW.13), colour of the motorcycle allegedly recovered at the instance of Muhammad Azeem alias Kalu (appellant) was black; and thirdly Haji Nisar Ahmad (PW.4) from whom the said motorcycle was allegedly obtained on rent, did not support the prosecution case during his cross-examination and he was declared hostile on the request of learned Deputy District Public Prosecutor; that the vehicle wherein Muhammad Aslam (deceased) was allegedly killed and the witnesses of ocular account were boarding at the time of occurrence was an important piece of evidence as the same would have been crucial to determine whether any fire hit the said vehicle but nothing was brought on the record to establish that the same was also taken into possession by the Police during the course of investigation; that besides the appellants three other persons namely Mohabbat Ali, Liaqat Ali alias Billu (since dead) and Faqir Hussain were also indicted with the appellants with the charge of abetting the crime. Out of whom Liaqat Ali alias Billu died during the trial whereas Mohabat Ali and Faqir Hussain were acquitted of the charge while extending them benefit of doubt, therefore, the prosecution evidence which has been disbelieved to the extent of co-accused of the appellants since acquitted cannot be believed against the appellants without there being any independent and strong corroboration, which is very much lacking in this case; that viewing from all angels the prosecution case is doubtful in nature and the appellants are entitled to the benefit of doubt not as matter of grace but as of right.
5. Notice was issued to the complainant vide order dated 29.07.2013, 23.10.2014 and 11.11.2014. Mst.
Naseem Akhtar, complainant entered appearance, on 27.11.2014, and sought an adjournment to engage a learned counsel and on her request the case was adjourned. Again on 06.02.2015, none entered appearance on behalf of the complainant and the SHO concerned was directed to effect the service of notice on the complainant and ensure her representation. On 12.02.2015, Imdad Hussain S.I appeared and produced a report which bore the stamp of Investigation Police Station Faisal Town, according to which the service of notice was effected upon the complainant in person.
However, since none was present on behalf of the complainant, in the interest of justice, the case was adjourned for today. Even today none has turned up on behalf of the complainant, therefore, I am proceeding with the case after hearing arguments of learned Deputy District Public Prosecutor for the State.
6. On the other hand, learned Deputy District Public Prosecutor strenuously opposes this appeal on the grounds that the occurrence took place in the broad daylight at 01:15 p.m. On 08.12.2003 and the same was reported to the Police on the same afternoon at 02:00 p.m. Through written statement (Exh.PH) of Mst. Naseem Akhtar complainant (PW.7) on the basis whereof formal FIR (Exh.PF) was registered on the same day at 02:25 p.m.; that this promptitude in lodging of FIR which describes full details of the incident such as names of the appellants weapons carried by them at the time of occurrence, mode of occurrence and names of the witnesses of ocular account, clearly establishes the presence of the complainant as well as the other witness of the ocular account at the spot; that the witnesses of ocular account had no motive of their own for false implication of the appellants and even otherwise substitution in such like cases is a rare phenomenon as kith and kin of the deceased would not implicate innocent persons by letting off the real culprits; that the medical evidence is exactly in line with the ocular account; that the motorcycle used by the appellants was recovered at the instance of Muhammad Azeem alias Kalu (appellant) and the same was taken into possession vide recovery memo (Exh.PN), which sufficiently connects the appellants with the commission of crime; that likewise recovery of a pistol (P.5) was effected at the instance of Muhammad Azeedi alias Kalu (appellant); that Muhammad Saleem alias Chhema (appellant) cannot get any benefit from his alleged innocence as concluded by the Police during the course of investigation as the sole domain of the Investigating Agency is collection of evidence and not to declare guilt/innocence of the accused which is the exclusive domain of the court; that even otherwise Police findings qua Muhammad Saleem alias Chhema (appellant) are not based on any cogent evidence; that the prosecution has successfully brought home guilt against the appellants to the hilt and there is no merit in this appeal; that a lenient view has already been taken by the learned trial court while awarding imprisonment for life to the appellants in the offence of qatl-e-amd normal penalty whereof is death sentence, therefore, the appellants do not deserve any leniency even in the quantum of their sentence.
7. So far as Crl. Revision No,61 of 2011 is concerned, the same was instituted through Mr. Ahmad Awais Khurram Advocate but as already mentioned in para 5 above, the said learned counsel has not turned up. However, learned Deputy District Public Prosecutor submits that the respondents Nos.1 and 2 committed cold blooded and brutal murder of Muhammad Aslam (deceased) by causing firearm injuries on his neck and other parts of the body and as such they deserved death sentence which is normal penalty for the offence of qatl-i-amd, therefore, the sentence of imprisonment for life imposed upon respondents Nos.1 and 2 be enhanced to the death sentence.
8. I have heard the learned counsel for the appellants as well as the learned Deputy District Public Prosecutor for the State and gone through the record with their able assistance.
9. For the following reasons the prosecution case is doubtful in nature:--
(a) According to the prosecution, the occurrence took place at 01:15 p.m. On 08.12.2003 and the matter was reported to the Police on the same afternoon at 02:00 p.m. By Mst. Naseem Akhtar complainant (PW.7) and on the basis of her written application formal FIR was registered on the same day at 02:25 p.m., however, the other circumstances suggest that the crime was not reported to the Police at the time claimed in the FIR because according to the post mortem report (Exh.PM) autopsy on the dead body of Muhammad Aslam (deceased) was conducted on the next day i.e, 09.12.2003 at 12.00 (midday) and even application (Exh.PT) for issuance of docket was also moved on the next day i.e, 09.12.2003.
' Therefore, this delay of about nineteen hours in conducting the post mortem examination has brought into grey area the so called promptitude shown by the complainant in reporting the crime to the Police and in the circumstances possibility cannot be ruled out that the murder in issue remained un-witnessed and time was consumed by the local Police in procuring and planting eyewitnesses and cooking up a story for the prosecution.
(b) The prosecution failed to prove the place of occurrence beyond reasonable doubt as according to the contents of FIR, the occurrence took place at Maulana Shaukat Ali Road (which is mottled road) near Ravi Hotel and Pizza Heim whereas according to column No,24 of the inquest report of Muhammad Aslam (deceased) the same was prepared in Jinnah Hospital Lahore and in the column No,23 meant for the things present near the dead body five empty bullets have been mentioned.
' Moreover, according to recovery memo (Exh.PJ) blood was collected from inside the vehicle through cotton, however, in the report (Exh.PW) of Chemical Examiner as well as report (Exh.PX/1) of Serologist earth was sent to the said offices for analysis but none of the prosecution witnesses stated that any earth was collected from the place occurrence.
(c) Presence of the witnesses of ocular account namely Mst. Naseem Akhtar complainant (PW.7) and Waseem Abbas (PW.8) is not free from doubt as according to the visual site plan (Exh. PV) of the place of occurrence she (Mst. Naseem Akhtar) was sitting on front seat with Muhammad Aslam (deceased) whereas Waseem Abbas (PW.8) was sitting on rear seat of the car. According to post mortem examination report (Exh.PM) as many as seven firearm injuries were caused to Muhammad Aslam (deceased) but the complainant (PW.7) as well as Waseem Abbas (PW.8) did not receive even a scratch during the occurrence. It is also claim of complainant in the FIR that she along with Muhammad Aslam (deceased), Waseem Abbas (PW.8) as well as Muhammad Sheraz and Muhammad Nawaz (PWs since given up) were going to liberty market for shopping, however, no specific purpose/occasion of shopping for which five persons were going together was disclosed either in the FIR or before the learned trial court and the reason of mere shopping without disclosing the eve thereof does not inspire confidence.
(d) According to the contents of the FIR and statements of both the witnesses of ocular account one Muhammad Sheraz son of Irshad Ahmad, who was step son of Muhammad Aslam (deceased) was also sitting in the same vehicle, however, there is no mention in the FIR that said Muhammad Sheraz was injured during the occurrence. According to visual site plan (Exh.PV), purportedly prepared on 08.12.2003, Muhammad Sheraz was also injured in the same incident at Mark-E. MLC of said Muhammad Sheraz is available on the record as Exh.PG and Dr. Muhammad Tariq (PW.6), who, on 11.12.2003, medically examined Muhammad Sheraz was produced by the prosecution, who categorically stated that the injured was brought to the emergency by the Police with history of fight on 08.12.2003. Although the prosecution cleverly gave up said Muhammad Sheraz being won over by the appellants but the suppression of injures to the person of said Muhammad Sheraz in the FIR as well as by both the witnesses of ocular account while appearing before the learned trial court creates serious dents qua the credibility/veracity of the prosecution version.
(e) No weapon was recovered at the instance of Muhammad Saleem alias Chheema (appellant No,2) and he was found innocent during the successive investigations whereas the alleged recovery of a pistol (P.5) at the instance of Muhammad Azeem alias Kalu (appellant) which was taken into possession vide recovery memo (Exh.PB) does not advance the case of the prosecution as according to the report of Forensic Science Laboratory (Exh.PX) the empties allegedly recovered from the place of occurrence had not been fired through the pistol (P.5) allegedly recovered at the instance of Muhammad Azeem alias Kalu (appellant No,1). Similarly recovery of motorcycle at the instance of Muhammad Azeem alias Kalu (appellant) which was taken into possession vide recovery memo (Exh.PN) is also doubtful in nature because registration number of the motorcycle is not mentioned in the FIR. Moreover Haji Nisar Ahmad (PW.4) from whom the said motorcycle was allegedly obtained on rent, did not support the prosecution case during his cross-examination and was declared hostile on the request of learned Deputy District Public Prosecutor. Above all, according to the contents of the FIR the appellants came on red colour CD/70 motorcycle, however, according to recovery memo (Exh.PN) as well as examination in-chief of the attesting witness namely Safdar Ali, Constable (PW.13), colour of the motorcycle allegedly recovered at the instance of Muhammad Azeem alias Kalu (appellant) was black.
(f) The vehicle wherein Muhammad Aslam (deceased) was allegedly killed and the witnesses of ocular account were boarding at the time of occurrence was an important piece of evidence as the same would have been crucial to determine whether any fire hit the said vehicle but nothing was brought on the record to establish that the same was also taken into possession by the Police during the course of investigation.
' Motive behind the occurrence as mentioned in the FIR and narrated by both the witnesses of ocular account while appearing before the learned trial court was that in June, 2001, case for murder of father of the appellants was registered against Muhammad Aslam (deceased) and others and to settle their grudge the instant incident was committed by the appellants. It is well settled by now that in a case of admitted enmity, motive is a double edged weapon because if it could prompt the appellants to commit murder of Muhammad Aslam (deceased) then at the same time it could be a reason for the complainant's side for false implication of the appellants. In this case (because of the admitted previous enmity) very strong and independent corroboration is required to believe the ocular account, which corroboration as discussed in ground 'e' is very much lacking in the instant case.
10. Sequel of the above discussion is that the prosecution case is, doubtful in nature and the appellants are entitled to the benefit of doubt not as a matter of grace but as of right. In "Ayub Masih v. The State" (PLD 2002 SC 1048), at page 1056, the Hon'ble Supreme 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."
11. In view of the above, this appeal is allowed. Conviction and sentence awarded to the appellants by the learned Additional Sessions Judge Lahore vide judgment dated 04.11.2010 is set aside and the appellants are acquitted of the charge framed against them. They are in jail, they be set at liberty if not required to be detained in any other case.
12. Now I take up Crl. Revision No,61/2011 filed by Mst. Naseem Akhtar (complainant) for enhancement of the quantum of sentence awarded to Muhammad Azeem alias Kalu and Muhammad Saleem alias Cheema (respondents Nos. 1 and 2). Since I have already acquitted respondents Nos. 1 and 2 by concluding that the prosecution case to their extent is doubtful in nature, therefore, there remains no question for the enhancement of the quantum of sentence awarded to the said respondents. In the circumstances, there being no force in this petition for enhancement of the sentence, Crl. Revision No,61 of 2011 is hereby dismissed in limine.