SYED SHAHBAZ ALI RIZVI, J.---Through this appeal, Shabbir Ahmad (appellant) has assailed his conviction and sentence awarded to him vide judgment dated 01.08.2001 passed by the learned Addl. Sessions Judge, Ferozewala in case FIR No,235 dated 19.06.1998, offence under section 302, P.P.C. Registered at Police Station Sharqpur, District Sheikhupura, whereby he (appellant) was convicted under section 302(b), P.P.C. And sentenced to imprisonment for life. He was, however, extended the benefit of Section 382-B of the Code of Criminal Procedure, 1898.
It is pertinent to mention here that Iftikhar alias Khari, co-accused of the appellant was also convicted by the learned trial court through the same judgment under section 302(b), P.P.C. And was sentenced to rigorous imprisonment for fourteen years. He filed Criminal Appeal No,1884 of 2005 against his conviction which came up for hearing before this Court on 20.12.2005. During the hearing of said appeal, it was observed that though, he was convicted under section 302(b), P.P.C.
Yet sentenced to rigorous imprisonment for fourteen years, therefore, a notice for enhancement of sentence was issued to him and Office prepared a separate file bearing Criminal Revision No,1047 of 2005. Later on, Iftikhar alias Khari, co-convict of the appellant was murdered and in this regard a criminal case vide FIR No,795 dated 31.07.2007 offence under sections 324, 186, 353, P.P.C. Read with section 7 of the Anti-Terrorism Act, 1997 was registered at Police Station lslampura District Lahore. In this view of the matter, Criminal Appeal No,1884 of 2005 filed by Iftikhar alias Khari and Criminal Revision No,1047 of 2005 were disposed of accordingly by a learned Division Bench of this Court vide order dated 04.06.2015.
2. Brief facts of the case as disclosed by Muhammad Hussain, complainant (since dead) in his statement (Exh-PA) on the basis of which formal FIR (Exh-PA/l) was registered, are that he is cultivator by profession. His paternal cousin Mst. Ulfat Bibi was married with one Muhammad Afzaal resident of Thathi Bhangwan Police Station Sharaqpur. About 5/6 days ago, his brother-in-law Muhammad Afzaal was apprehended by Naib Tehsildar due to non-payment of Walla'. On 19.06.1998 at about 8/9 p.m, his paternal cousin Ghareeb Alam (deceased), after taking Rs,30,000/- from his sister Mst. Ulfat Bibi, was coming to Police Station Faizabad on bicycle to get released his brother-in-law. When his paternal cousin Ghareeb Alam (deceased) reached near the tube well of one Muhammad Yosuaf Arain on metalled road, Iftikhar alias Khari Christian (since dead), Shabbir alias Sheebo (appellant) along with two unknown persons stopped him and murdered him with firearm. He (complainant) along with Niaz (PW-9) and Maqbool (given up PW), on receipt of information, reached the spot where the dead body of his paternal cousin Ghareeb Alam (deceased), smeared in blood, was lying on metalled road. Two injuries on left side of head and left side behind the ear, caused with two fire shots were available on the dead body. The accused fled away from the spot after taking Rs,30,000/-.
3. Shabbir Ahmad (appellant) was arrested in this case who, on 14.03.2000, while in police custody, after making disclosure, got recovered .30 bore pistol which was taken into possession vide recovery memo Exh-PM. 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 codal formalities, framed charge against the appellant and his co-convict (since dead), to which they pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution produced as many as eleven witnesses during the trial.
Niaz (PW-9) furnished the ocular account of the case. Sibghatullah 1286/C (PW-10) and Salem Javed 1402/C (PW-11) are the witnesses of alleged recovery of crime weapon at the instance of the appellant.
The medical evidence was furnished by Dr. Muhammad Azam (PW-6) who, on 20.06.1998 at 04.00 p.m., conducted the post mortem examination on the dead body of Ghareeb Alam (deceased) and noted the following injury on his body: - "A fire-arm wound of entry 0.5 c.m into 0.5 c.m on the depressed part of left ear, .Piercing the left ear making re-entry into the scalp, just behind the left ear and making wound of exit on back of left side of head, slightly above and 8.c.m apart from the wound of entry."
In his opinion, death occurred due to shock severe haemorrhage and cardiorespiratory failure due to above mentioned injury (Injury to brain) which, in ordinary course of nature can cause death of a person. Probable time between injury and death was about one hour and between death and post mortem examination 16 to 20 hours.
Muhammad Arif, S.I. (PW-3) is the Investigation Officer of this case and Hameed ud Din Chishti, Draftsman (PW-5) prepared the scaled site plan (Exh-PJ) of the place of occurrence whereas, rest of the witnesses are formal in nature. After conclusion of the prosecution case, statement of the appellant and his co-convict Iftikhar alias Khari (since dead), under section 342 of the Code of Criminal Procedure, 1898, were recorded. They refuted the allegation levelled against them and professed their innocence. In reply to a question that 'Why this case is against you and why the PWs have deposed against you?, the appellant replied as under: "The PWs have deposed against me on the asking of the complainant party and with the collusion of Afzaal. I have been falsely involved in this case on the basis of suspision."
5. The learned trial Court vide its judgment dated 01.08.2001, found the appellant guilty, convicted and sentenced him as mentioned above. Hence, this appeal.
6. Learned counsel for the appellant contends that the appellant has falsely been implicated in this case on the basis of suspicion; that there is delay of about more than eight and a half hours in reporting the matter without any explanation; that similarly, there is further delay of about ten and half hours in post mortem examination of the dead body of the deceased after the registration of the case which is suggestive of the fact that the occurrence is unseen; that Niaz (PW-9) is a chance witness as he is a resident of a place situated about five miles from the place of occurrence who had also made dishonest improvements in his statement; that admittedly, the occurrence took place at night and the source of light mentioned by the PW i.e, tractor trolley is neither shown in the scaled site plan nor taken into possession by the Investigation Officer; that the ocular account is in conflict with the medical evidence; that the alleged recovery of crime weapon at the instance of the appellant is inconsequential as no report of the Forensic Science Laboratory is available on the record; that no stolen amount was recovered from the appellant; that the prosecution remained fail to prove its case against the appellant beyond any shadow of reasonable doubt; that this appeal may be allowed and the appellant be acquitted of the charge.
7. Learned Deputy District Public Prosecutor vehemently opposes the contentions raised by learned counsel for the appellant and contends that the complainant or Niaz (PW-9) has no mala fide to falsely implicate the appellant in this case; that Niaz PW has explained his presence at the place of occurrence at the relevant time; that Niaz PW has not made dishonest improvement in his statement rather explained certain facts; that the ocular account is fully corroborated by the medical evidence which finds further corroboration from the recovery of crime weapon at the instance of the appellant; that prosecution has fully proved its case against the appellant; that this appeal may be dismissed.
8. I have heard the arguments of learned counsel for the appellant, learned Deputy District Public Prosecutor and scanned the record with their able assistance.
9. As per crime report (Exh-PA/1), the occurrence took place on 19.06.1998 at 8/9 p.m. And as per prosecution's case, Niaz (PW-8) along with Maqbool Ahmad (given up PW) witnessed the occurrence and the appellant and his co-convict Iftikhar alias Khari (since dead) were known to the said PWs and were identified at the scene of occurrence by them but surprisingly, the matter was reported to the police at 05.30 a.m. i.e, after the delay of more than eight and half hours while the distance between the police post Fatowala and the place of occurrence was 2 or 21/2 miles as is maintained by Muhammad Arif, S.I (PW-3), the Investigation Officer, during his cross- examination. Relevant column of crime report (Exh-PA/1) also reflects the distance between the police station and the place of occurrence as eight miles only. Such delay in reporting the crime of heinous nature normally takes place when the occurrence is unwitnessed. In this regard reference is respectfully made to the esteemed judgment passed by the Hon'ble Supreme Court of Pakistan in the case of Akhtar All and others v. The State (2008 SCM R 6) wherein, the Hon'ble Supreme Court was pleased to observe as under:- "5. ......10/11 hours delay in lodging of FIR provides sufficient time for deliberation and consultation when complainant had given no explanation for delay in lodging the FIR. It is enough time for complainant to fabricate the story even then the complainant did not nominate appellants and their acquitted co-convicts, therefore, possibility cannot be ruled out qua false implication of the appellants. It is also a settled law that delay of 10/11 hours in making FIR not explained leads to inference that the occurrence was unwitnessed..."
Similarly, the post mortem examination on the dead body of the deceased was conducted at 04.00 p.m. On 20.06.1998 which transpires that the same was conducted with further delay of about ten and half hours. It is held repeatedly by this Court and the Hon'ble Supreme Court of Pakistan that such unexplained delay is normally occasioned due to incomplete police papers necessary to be handed over to the Medical Officer to conduct the postmortem examination of the deceased which happens only when the complainant and police are busy in consultation and preliminary inquiry regarding the culprits in such cases of unwitnessed occurrence. Hence, we are of the view that the presence of the witnesses at the scene of occurrence at the relevant time is doubtful. In this regard, reliance is placed on the case of Muhammad Riaz v. The State (2009 PCr.LJ 1022 Lahore) wherein, this Court has observed as under:- "13. ...It is also not found correct that the FIR had been got registered with promptitude as the occurrence had allegedly taken place at about 5-00 a.m. While the postmortem examination was conducted at 1-00 p.m. And there is every possibility that the intervening period was consumed in concocting a story and to await for the relatives of the deceased, who were made witnesses subsequently, otherwise, they have failed to establish their presence at the spot..."
Same view was affirmed by the Hon'ble Supreme Court of Pakistan in the case of Irshad Ahmed v.
The State (2011 SCM R 1190), wherein the Hon'ble Supreme Court was pleased to observe as under:- "3. ...We have further observed that the post-mortem examination of the deadbody 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 deadbody conducted..."
10. As per crime report, the complainant reached at the place of occurrence after having the information of the incident along with Niaz Ahmad (PW-9) and Maqbool Hussain PW (given up being won over) as is evident from the original text of the statement (ExhPA) of Muhammad Hussain, complainant (since dead) that reads as under:- {{URDU TEXT}} From the above reproduced part of statement (Exh-PA) of Muhammad Hussain, complainant (since dead), it becomes very clear that the complainant along with abovementioned two PWs reached at the place of occurrence on having information regarding the occurrence. The whole text of Exh-PA does not carry even a single sentence regarding witnessing of the murder occurrence by any one.
Niaz Ahmad (PW-9) has been produced by the prosecution as eye-witness despite abovementioned fact available on record. Though conviction can be based on the strength of solitary witness yet it is relevant to mention here that the evidence of a solitary witness should inspire confidence and it should be of Unimpeachable character but in the present case when the evidence of Niaz Ahmad (PW-9) is scrutinized, it is observed that, as mentioned above, he was not cited as an eye-witness of the occurrence in the crime report. Moreover, as discussed above, had he along with the complainant witnessed the occurrence, he would have reported the matter to the police promptly. Admittedly, it was a dark night occurrence and he also admits during the cross-examination that he reached at the place of occurrence after about 2/3 minutes of the murder occurrence. During his cross-examination, he remained unable to narrate the number of persons available in the tractor trolley in the light of which he witnessed the occurrence. Moreover, his statement is discrepant with the medical evidence as he maintains during the cross- examination that the injury received by the deceased was on right side of his head but the medical evidence reveals that the injury was sustained by the deceased on the depressed part of left ear.
The tractor trolley in the light of which Niaz (PW-9) claims to witness the occurrence was never available to the prosecution to establish the identification of the appellant as the same was never taken into possession by the police during the investigation and even Niaz (PW-9) admits that he could not identify the tractor trolley when attracted to the spot. Hameed ud Din Chishti, Draftsman (PW-5) also admits during his cross-examination that no source of light is shown in the site plan.
Similarly, site plan (Exh-PJ) does not show any place of availability of tractor trolley at or near the scene of occurrence that reflects adverse to the prosecution case qua the identification of the appellant in the light of tractor. The statement of said .Witness is also pregnant with material improvement as is evident from the following reproduced part of his cross examination available at page 47 of the paper book:- "...I stated before the police that the fire was hit by Shabbir, confronted with Ex.D1 where it is reduced that the shot has been fired by Iftikhar on the head of the deceased..."
The above most material and dishonest improvement besides other improvements made by the witness makes his testimony unreliable and untrustworthy. Reference is made to the case of Muhammad Rafique and others v. The State and others (2010 SCM R 385) wherein, at page 396, the Hon'ble Supreme Court of Pakistan was pleased to observe as under:- "24. ...This Court in the case of Saeed Muhammad Shah v. State 1993 SCM R 550 observed that if a witness improves his statement on material aspects of the case then such improvement is not worthy of reliance and the evidence of such witness requires corroboration. In the case of Khalid Javed v. State 2003 SCM R 1419 while reiterating the above rule, it was further observed that such witness is to be considered to be wholly unreliable and it is not advisable to place explicit reliance upon his evidence."
The material and dishonest improvement made by the eye-witness besides the material discrepancies between his statement and the medical evidence and inability of the prosecution to prove the availability .Of source of light i.e, tractor trolley at the scene of occurrence coupled with the fact that the matter was rc7orted to the police an inordinate delay and the post mortem examination of the deceased was conducted with further unexplained and unreasonable delay of ten and half hours make the testimony of Niaz (PW-9) doubtful.
Another important aspect of this case is that the most material witness Yousaf Arain who is admittedly having his place adjacent to the place of occurrence was never joined with the investigation as his statement is not available on record. Similarly, the prosecution withheld the evidence of Maqbool (given up PW) that also leads this Court to infer against the prosecution case.
11. As regards alleged recovery of crime weapon at the instance of the appellant, this Court has observed that though the crime empty was taken into possession from the place of occurrence yet the same was not sent to the Forensic Science Laboratory for comparison. Similarly, .30 bore pistol allegedly recovered at the instance of the appellant was also not sent to the said Laboratory. In this view of the matter, this Court is of the opinion that the alleged recovery of pistol is inconsequential to the prosecution case.
12. It is an established principle of law that prosecution has to prove its case against the accused by standing on its own legs and it cannot take any benefit from the weaknesses of the case of the defence. In the instant case, as discussed above, the prosecution remained fail to discharge its responsibility of proving the case against the appellant beyond the shadow of a reasonable doubt.
It is by now well settled law that if there is a single circumstance which creates reasonable doubt regarding the prosecution case, that is sufficient to give benefit of the same to the accused, whereas, the instant case as discussed in the preceding paragraphs, 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 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."
13. In the light of above discussion, this Court is of the view that the prosecution has failed to prove its case against the appellant beyond the shadow of any reasonable doubt, therefore, Criminal Appeal No,142 of 2005 filed by Shabbir Ahmad appellant is allowed, his conviction and sentence recorded by the learned trial court is set aside and he is acquitted of the charge levelled against him by extending him the benefit of doubt. He is on bail, his bail bonds are discharged and sureties are released.