1. Syed Shahbaz Ali Rizvi, J.--This judgment shall dispose of Criminal Appeal No, 1095 of 2010 filed by Muhammad Irshad Cheema, appellant against his convictions and sentences awarded to him by the learned trial Court and Murder Reference No, 133 of 2011 sent by the learned trial Court for confirmation or otherwise of sentence of death awarded to the appellant under Section 374 of the Code of Criminal Procedure. 1898, being outcome of the same judgment dated 30.09.2010 passed by the learned Addl. Sessions Judge. Jahanian in case FIR No, 960 dated 12.11.1998, offence under Sections 302, 436, 201, 148 and 149, PPC registered at Police Station Jahanian District Khanewal whereby the appellant was convicted under Section 302(b), PPC for committing the murder of Muhammad Hanif, Muhammad Riaz, Pathanay Khan, Abdul Majeed, Bashir Ahmad and Muhammad Yousaf and sentenced to death on six counts with the direction to pay Rs, 1,00,000/- to the legal heirs of each deceased as envisaged under Section 544-A of Code of Criminal Procedure, 1898 and in default thereof, to undergo simple imprisonment for three months each. Ile was further convicted under Section 436, PPC and sentenced to rigorous imprisonment for ten years with fine of Rs, 30,000/- and in default thereof, to undergo simple imprisonment for one month. He was also convicted under Section 201, PPC and sentenced to rigorous imprisonment for seven years with fine of Rs, 20,000/- and in default thereof, to undergo simple imprisonment for one month. He was awarded the benefit of Section 382-B of the Code of Criminal Procedure, 1898. All the sentences were ordered to run concurrently.
2. It is pertinent to mention here that in an earlier trial Naseer Ahmad, co-accused was acquitted by the learned trial Court whereas, Zafar Iqbal, Akbar Ali, Muhammad Akram and Mahmood Ahmad, co-accused were convicted and sentenced who were acquitted by this Court vide judgment dated 13.06.2007 passed in Crl. Appeal No, 315 of 2002 whereas; the appellant was declared a proclaimed offender.
3. 2.Per prosecution case the facts, as disclosed by Haji Ahmad, complainant (PW-4) in crime report (Exh-PH), are that on 12.11.1998 at about 12.00 night, Muhammad Irshad Cheema. (appellant) armed with rifle along with his, co-accused namely, Naseer Ahmad, Muhammad Akbar, Zafar Iqbal, Muhammad Akram, Mahmood Ahmad (since acquitted in an earlier trial) and Bashir Ahmad (since dead) committed the murder of Muhammad Hanif, Pathanay Khan, Abdul Majeed, Bashir Ahmad, Muhammad Riaz and Muhammad Yousaf by firing and thereafter, set their bodies on fire.
4. Motive behind the occurrence as disclosed by the complainant was that the appellant was an accused in the case of murder of Peer Bakhsh, father of the complainant and he, in order to restrain the complainant from pursuing the said case, committed the occurrence.
5. 3.Muhammad Irshad Cheema (appellant) who, when in police custody in some other case, was arrested in this case on 20.11.2009 by Shaukat. Hussain, Sub-Inspector (PW-10). On 03.12.2009, he; after making disclosure, got recovered .222 bore rifle (P-1) along with four five bullets (P-2/1-4) which were taken into possession .vide recovery memo. Exh-PG. After completion of investigation, report under Section 173 of the Code of Criminal Procedure, 1898 was submitted. The learned trial Court, after observing all the pre-trial codal formalities framed the charge against the appellant to which he pleaded not guilty and claimed trial.
6. 4.The prosecution, in order to prove its case, produced as many as ten witnesses during the trial.
7. Haji Ahmad, complainant (PW.4) and Allah Ditta (PW-5) furnished the ocular account of the incident. Muhammad Ashraf 180/HC (PW-2) and Muhammad Arshad 17/1IC (PW-3) are the witnesses of recovery of crime weapon at the instance of the appellant.
8. The medical evidence was furnished by Dr. Muhammad Aslam (PW-1) who, on 12.11.1998 conducted the post-mortem examination on the dead bodies of Muhammad Hanif, Pathanay Khan, Abdul Majeed, Bashir Ahmad, Muhammad Riaz and Muhammad Yousaf (deceased persons). Posture of all the dead bodies was pugilistic attitude. He observed fire-arm wounds on their bodies and that whole of the bodies were burnt. In his opinion, injuries to all the deceased persons were ante mortem, caused by fire-arm and sufficient to cause death in ordinary course of nature. Probable duration between injuries and death, as observed by him, was immediate whereas, between death and post-mortem examinations 14 to 20 hours.
9. Muhammad Nawaz, retired Inspector (PW-7), Nazir Ahmad Shah, Inspector (PW-8) and Shaukat Hussain, SI (PW-10) are the Investigation Officers of this case. Muhammad Mansha 521/C (PW-6) executed warrants and proclamation against the accused whereas, Manzoor Ahmad (PW-9) identified the dead body of Muhammad Hanif, deceased at the time of post-mortem examination.
10. 5.The statement of the appellant under Section 342 of the Code of Criminal Procedure, 1898, was recorded wherein, he refuted the allegations levelled against him, professed his innocence and maintained that in fact, it was a blind murder and the alleged eyewitnesses were not present at the spot and that he had falsely been implicated in this case due to previous enmity. He did not opt to appear as his own witness on oath as provided under Section 340(2) of the Code of Criminal Procedure, 1898 in disproof of the allegations levelled against him however, he did produce Abdul Ghafoor (DW-1), Haji Sana Ullah (DW-2), Muhammad Ismail (DW-3) and Zulifqar (DW4) in his defence.
11. 6.The learned trial Court vide its judgment dated 30.09.2010, found the appellant guilty, convicted and sentenced him as mentioned above.
12. 7.Learned counsel for the appellant, inter alia, contends that there is an unexplained delay of about eight hours in reporting the matter to the police; that the appellant has falsely been implicated in this case; that all the eye-witnesses besides being chance witnesses are inimical towards the appellant; that the eye-witnesses have made dishonest improvements in their statements which were duly' got confronted and brought on the record; that the recovery of crime weapon at the instance of the appellant is inconsequential; that the alleged abscondance of the appellant could not be proved as per law; that the prosecution remained fail to establish its case against the appellant beyond the shadow of a reasonable doubt; that this appeal may be accepted, convictions and sentences of the appellant may be set aside, he may be acquitted of the charge and the Murder Reference be answered in the negative. 8.On the other hand, learned Deputy Prosecutor General assisted by learned counsel for the complainant vehemently opposes the contentions raised by the learned counsel for the appellant and, inter alia, maintains that there is no deliberate or conscious delay in reporting the matter to the police; that no mala fide or ill will of the complainant has been pointed out by the appellant for his false implication in this case; that conviction can be passed even on the statements of related witnesses if the same is confidence inspiring and trustworthy; that the dishonest improvements pointed out by learned counsel for the appellant are explanatory in nature; that prosecution case finds corroboration from the medical evidence; that the prosecution case is further corroborated by the evidence of recovery of crime weapon at the instance of the appellant; that the prosecution has successfully proved the motive part of the occurrence; that the appellant remained fugitive from law for a noticeable period of about eleven years; that the case of acquitted co-accused persons is distinguishable from that of the appellant; that this appeal may be dismissed and the Murder Reference be answered in the affirmative.
13. 9.We have heard the arguments of learned counsel for the appellant, learned Deputy Prosecutor General assisted by learned counsel for the complainant and also scanned the record with their assistance.
14. 10.It has been noticed that admittedly, in an earlier separate trial and in an appeal filed by the co-accused persons, they have been acquitted of the charge in this case and the evidence produced by the prosecution through the eye-witnesses Haji Ahmad, complainant (PW4) and Allah Ditta (PW-5) against them was disbelieved. The perusal of complete prosecution evidence does not reveal the availability of any credible and strong corroboration from an independent source to the testimony of PW-4 & PW-5 already disbelieved to the extent of co-accused, to make the same credible against the appellant. It is admitted by the eye-witnesses that the residence of the complainant from where the witnesses attracted to the place of occurrence is situated at a distance of not less than two squares of land which of course makes a considerable distance.
15. Similarly, no justification for the presence of Allah Ditta (PW-5), resident of village 151/10-R, a place situated at a distance of 4/5 miles from the place of occurrence, with the complainant on the night of occurrence, is given and when this fact is considered with other mysterious feature of inordinate delay in reporting such a gruesome unfortunate occurrence to police, it leads to infer against the veracity of prosecution's story narrated by both the eye-witnesses in their statements recorded by the police under Sections 154 & 161 of the Code of Criminal Procedure, 1898 respectively. The occurrence that took place at 12.00 O'clock in the night between 11th and 12th of November, 1998 was reported to the police at Police Station at 08.00 a.m. while the distance between the Police Station and the-place of occurrence was just six miles. Both the eye-witnesses admitted that they along with others remained at the place of occurrence the whole night and did not prefer to inform the police in this regard which, of course, is an unnatural behaviour. In our view, such unjustifiable delay usually occurs when in case of an Un-witnessed occurrence, the police along with complainant party remains busy in preliminary inquiry regarding the culprits and consultation for fabrication of prosecution story and procuring the names of the witnesses to be cited in the crime report which are required to be handed over to the Medical Officer prior to the commencement of the post-mortem examination of the deceased. Reference in this respect is made to the case of Mehmood Ahmad and 2 others v. State (PLJ 1995 SC 1) wherein, the Hon'ble Supreme Court of Pakistan has observed as under: "5. ...Although in some circumstances a delay of two hours may not be of much importance yet in the facts and circumstances of this particular case as they have happened, the delay has great significance. It can be attributed to consultation, taking instructions and calculatedly preparing report keeping the names of accused open for roping in such persons whom ultimately prosecution may wish to implicate..."
16. 11.The statement of Allah Ditta (PW-5) is also pregnant with material and dishonest improvements which were duly got confronted by the defence. Another aspect of this case observed .by us is that it is nowhere available in the evidence that the witnesses who, as per crime report, were four in number even tried to extinguish the Tire despite the fact that Muhammad Hanif and Muhammad Yousaf were brothers of Haji Ahmad, complainant (PW-4) and Allah Ditta (PW-5),. respectively.
17. Even according to complainant (PW-4), 50/60 persons from the locality attracted at the spot but even then they did not try to extinguish the fire which again reflects the unnatural conduct on their part. None from the vicinity Was produced by the prosecution as a witness.
18. All mentioned above, make the ocular account furnished by the prosecution lacking judicial certainty and credibility, completely untrustworthy.
12. So far 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 , SCMR 1410) and Altaf Hussain v.
19. Fakhar Hussain and another (2008 SCM R 1103). As we have disbelieved the ocular account furnished by the prosecution, the medical evidence, a supportive piece of evidence, is of no consequence.
13. As regards the motive alleged by the prosecution that the appellant was an accused, in the case of murder of Peer Bakhsh, father of the complainant and he, in order to stop the complainant from pursuing the said case, committed the occurrence, we have observed that Haji Ahmad, complainant (PW-4), during his cross-examination, has admitted that none of the deceased was a witness in the previous murder case whereas, Manzoor Ahmad son of Wariyam, Manzoor Ahmad son of Peer Bakhsh and brother of the complainant of -the instant case and Kabeer Khan, brother of Peer Bakhsh, deceased who were complainant and the witnesses in the motive murder case were living in the vicinity but they were never attacked by the appellant and his co-accused (since acquitted) which also reflects adverse to, the motive alleged by the prosecution. Even otherwise, motive is always considered a double edged weapon. If it can be a reason for commission of an offence, the same could also be a reason for false implication of the appellant.
20. 14.. As far as the alleged recovery of .222 bore rifle (P-1) along with four live bullets (P-2/1-4) at the instance of the appellant. is concerned, suffice to observe that the same is inconsequential as there is no report of the Forensic Science Laboratory even regarding the working condition of the said rifle.
15. Now coming to the abscondance of the appellant till 20.11.2009, keeping in view our observations regarding the ocular account furnished by the prosecution, the medical evidence, the evidence of motive and that of recovery of crime weapon, we are of the opinion that the abscondance cannot be taken as a proof of guilt if otherwise sufficient connecting evidence against the appellant is not ' available. Reference in this respect can be made to the case of Barkat Ali v. Muhammad Asif and others (2007 SCM R 1812). Even otherwise by now, it is an established proposition of law that the abscondance creates merely a suspicion in mind but the same is not a conclusive proof of guilt.
21. Reliance in this respect is placed on the case of Rasool Muhammad v. Asal Muhammad and another (PLJ 1995 SC 477).
22. In this view of the matter, having considered all pros and cons of the case, we have come to an irresistible conclusion that the prosecution case does not carry judicial certainty and the prosecution itself remained fail to prove case against the appellant beyond shadow of a reasonable doubt-
16. It is, by now, well established principle of law that it is the prosecution, which has to prove its case against the accused by standing on its own legs and it cannot take any benefit of the weaknesses of the defence. In the instant case, the prosecution remained fail to discharge its responsibility of proving the case against the appellant. There remains no cavil about the proposition that if there is a single circumstance which creates reasonable doubt regarding the prosecution case, the same is sufficient to give benefit of the same to the accused. Same principle was also followed by the Hon'ble Supreme Court of Pakistan in the case of Ayub Masih v. The, State (PLD 2002 SC 1048), wherein, the Hon'ble Court, observed as under:-- "...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."
23. 17.In the light of above discussion, we accept Criminal Appeal No, 1095 of 2010 filed by Muhammad Irshad Cheema (appellant), set aside his convictions and sentences recorded by the learned trial Court and acquit him of the charge levelled against him by extending him the benefit of doubt. He is in custody, be released forthwith if not required to be detained in any other case.
24. 18.Murder Reference No, 133 of 2011 is answered in the <u>NEGATIVE </u> and sentence of death of Muhammad Irshad Cheema (convict) is <u>NOT CONFIRMED.</u>