RAJA SHAHID MEHMOOD ABBASI, J: - This single judgment shall dispose of Crl.A.No.76-J of 2010 titled "Zeeshan alias Shani v. The State" filed by Zeeshan alias Shani (appellant), against his conviction and sentence, as well as Murder Reference No.113 of 2010 titled as "The State vs. Zeeshan alias Shani", transmitted by the learned trial Court for confirmation or otherwise of the sentence of death awarded to Zeeshan alias Shani (appellant) being originated from the same judgment dated 15th of May, 2010 passed by the learned Addl. Sessions Judge, Rawalpindi, Camp at Central Jail, Rawalpindi in case FIR No.279 dated 21-04-2005 under sections 302/394/511/34 PPC, registered at Police Station, Civil Lines, Rawalpindi, whereby the appellant Zeeshan alias Shani was convicted and sentenced as under:- u/s 302-(b)PPC, death sentence on two counts for committing the murder of Shahid Ahmad Khan and Feroza. He was further held liable to pay compensation of Rs.2,00,000/- each under section 544-A Cr.P.C. to the legal heirs of each deceased or in default thereof to further undergo simple imprisonment for six months each.
2. Brief facts of the case, as disclosed by Arslan Shahid, complainant, in his statement Ex.PT. On basis of which, formal FIR, Ex.PU was registered are that he was living in house No. 79 situated at Kauser Colony, Railway Scheme No.III, Marrir Hassan, Rawalpindi, along with his family members. It was a three stories house. On the first portion, the complainant was living with his parents. On second floor, his uncle Zahid Ahmad Khan, PW.11 was living with his family, while on the third portion Mst. Farkhanda Bibi, PW.13 the paternal aunt (Phopho) of the complainant was living. Farkhanda Bibi, PW.13 used to sleep in the portion of Zahid Ahmad Khan. On the night between 20/21-4-2005, Mst. Farkhanda Bibi raised hue and cry, upon which, the complainant along with his father Shahid Ahmad Khan (deceased) and Feroza Begum (deceased) real mother, came out of their rooms and saw that two unknown accused of heavy built, wearing Shalwar Kameez, armed with pistols were present. Upon seeing the complainant and his parents, both of them started firing at them. One fire shot hit on the chest of the mother of the complainant, while two bullets shots hit on the left flank and one on right thigh of father of the complainant and they fell down on the ground. Upon hearing the firing, Zahid Ahmad Khan, PW.11, complainant's uncle and Yasir Shahid, PW.12 the real brother of the complainant also came there and the accused persons ran away from the main gate after leaving behind a Gram Shawl and a Sindi cap. Later on, the injured parents of the complainant succumbed to the injuries in the hospital.
3. Upon receiving the information of the occurrence, Azam But Inspector/SHO, PW.17 reached at the RGH, Hospital, where he recorded the statement of the complainant as Ex.PT and after making his endorsement, sent the same to the police station for registration of case through Tahir Nawaz, 2477-C, and this case was registered. During the course of investigation, the accused Zeeshan alias Shani was challenged to stand trial before the trial court, while co-accused Ejaz Ahmad Khan alias Tota was murdered. After receipt of challan against the present appellant/accused, charge was framed to which he pleaded not guilty and claimed trial. In order to prove its case the prosecution examined as many as 20-PWs in all to bring home the guilt of accused/appellant. Zahid Ahmad Khan, PW.11, Yasir Shahid PW.12 and Mst. Farkhanda Shamim, PW.13 are the witnesses of ocular account. PW-15 Ahmad Masood Janjua, the then SJM, Rawalpindi, who supervised the exhumation of the dead bodies of the deceased Shahid Ahmad Khan and Feroza Shahid.
Azam Mehmood Butt, Inspector/SHO, PW.17, Malik Sher Baz Inspector/SHO, PW.18 and Muhammad Wilayat, SI, PW.20 are the investigating officers of this case. The Medical evidence in this case was furnished by Dr. Abdul Waheed Shah, PW.7, Lady Doctor Kokab Sultana, PW.8, Dr. Yasmin Siddiqi, PW.9 and Dr. Masood-ul-Haq, PW.10. Rest of the prosecution witnesses are almost formal in nature.
4. The statement of the appellant under Section 342 Cr. P.C. was recorded. He denied the allegations levelled against him and claimed his innocence. In answer to a question, "why this case against you and why the PWs had deposed against you", Zeeshan alias Shani, appellant stated as under:- "I have been falsely involved in this case. In fact, I was made scapegoat. The witnesses are closely related to the deceased. No PW had seen the occurrence."
The appellant opted not to appear as his own witness under Section 340(2) Cr. P.C. in disproof of the allegations levelled against him by the prosecution nor opted to produce defence evidence.
5. Upon completion of the trial the learned trial court found the case against the appellant to have been proved beyond any shadow of doubt and thus convicted and sentenced him as mentioned above. Hence, the appeal before this Court.
6. The learned trial Court having heard the learned counsel for the parties passed the above said conviction and sentences, which is being impugned herein.
7. The learned counsel for the appellant inter alia, contends that the appellant has falsely been implicated in this case; that the appellant is not named in the crime report and the case was registered against some unknown assailants; that the prosecution failed to produce Arslan Shahid, complainant in the court during the trial; that the complainant was a material witness and without any reasons, he was not produced which seriously dented the prosecution case; that the medical evidence is in conflict with the ocular account; that alleged recovery is planted one; that there are major discrepancies in the deposition of the prosecution witnesses; that despite the fact that the appellant was not nominated in the FIR; that no identification parade was conducted in the instant case; that prosecution miserably failed to prove the case against the appellant; that alleged recovery is planted one and finally prayed that appellant may be acquitted and murder reference be answered in 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 prosecution has proved its case to its hilt; that no malafide is pointed out by the appellant for his falsely implication in the case; that ocular account is well corroborated by medical evidence as well as recovery of crime weapon; that non-production of the complainant in the case is not at all fatal to the prosecution and prayed that this appeal may be dismissed and murder reference be answered in affirmative.
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. We have observed that initially Arslan Shahid, complainant got registered crime report Ex.PU through his statement Ex.PT recorded by Azam Mehmood Butt, Inspector/SHO appeared as PW.17 with the stance that complainant Arslan Shahid was living in triple story house wherein ground floor was occupied by the complainant and his parent, fiirst floor was occupied by his uncle Zahid Ahmad Khan, PW.11 along with his family and second floor was the residency of Mst.
Farkhanda Shamim, paternal aunt (Phopho), PW.13. Farkhanda Shamim, PW.13 used to sleep in the portion of Zahid Ahmad Khan, PW.11. On the fateful night between 20/21-4-2005, Mst. Farkhanda Shamim, PW.13 raised hue and cry upon which complainant along with his father Shahid Ahmad Khan (deceased) and Feroza Begum, real mother (deceased) emerged out of their rooms, saw two unknown heavy built accused persons, clad in Shalwar Kameez, armed with pistols were present.
Upon seeing the complainant and his parents both of them started firing at them. One bullet landed on the right chest of his mother and father received fire shots under left rib, left flank and on the external side of right thigh. Due to firing his parents sustained injuries and fell down. On reports of firing uncle Zahid Ahmad Khan, PW.11, Yasir Shahid, PW.12, brother of complainant came out.
Accused persons on seeing them ran away through main gate leaving behind brown colour woolen "Chadder", and a Sindhi Topi, both of them intruded in the house with the intention to commit Dacoity but could not succeed to take away anything from the house due to clamor call of inmates of the house and accused persons could be identified by them on confrontation.
10. Record further reveals that the law was set into motion by way of recording the statement of Arslan Shahid, against unknown assailants but, surprisingly said material witness of the case was never produced by the prosecution despite adopting of coercive measures by the trial court. It is also relevant that name of appellant Zeeshan alias Shani and co-accused Ejaz alias Tota (since PO) came on the surface during the course of investigation by recording supplementary statement of complainant Arslan Shahid allegedly on the same day but said material witness was withheld and thereby the prosecution failed to explain as to how and on what source appellant along with his co-accused were nominated. Therefore, his evidence was the best piece of evidence which the prosecution has relied upon for proving the case but for reasons best known, his evidence was withheld and he was not examined. So, we are constrained to presume under illustration (g) of Article 129 of the Qanun-e-Shahadat Order, 1984 that the witness, if produced would have been unfavorable to the prosecution. In this regard we are fortified by the esteemed judgment passed by the Hon'ble Supreme Court of Pakistan reported as "Riaz Ahmad vs. The State" (2010 SCMR 849), wherein in para 4 of the judgment it has been held as under:- "Therefore, his evidence was the best piece of evidence, which the prosecution could have relied upon for proving the case but for the reason best known, his evidence was withheld and he was not examined. So a presumption under illustration (g) of Article 129 of Qanun-e-Shahadat Order, 1984 can fair be drawn that had the eyewitness Manzoor Hussain been examined in the court his evidence would have been unfavourable to the prosecution."
11. Prosecution in ocular evidence produced, Zahid Ahmad Khan, PW.11, Yasir Shahid, PW.12 and Mst.
Farkhanda Shamim, PW.13. Zahid Ahmad Khan, PW.11 deposed in line with story narrated by complainant, Arslan Shahid in complaint Ex.PT, however, in his examination-in-chief he nominated appellant Zeeshan @ Shani. Said PW.11 deposed that his brother Shahid (deceased) caught hold of accused Zeehan upon which appellant pulled out a pistol fired on his brother, who fell down on the ground, appellant repeated second fire shot on Mst. Feroza (Bhabi). He also mentioned that deceased Shahid received three fire shots. The said witness was cross examined by learned defence counsel, who stated that he had mentioned the name of appellant and Ejaz alias Tota had come to his house with the intention to commit dacoity. He also stated that he had mentioned in his statement under Section 161 Cr.P.C. that his brother caught hold of appellant Zeeshan Ahmad.
He further stated that he has mentioned in his statement under Section 161 Cr.P.C. that appellant fired at his Bhabi Mst. Feroza. All afore-referred three portions of statements were confronted by defence with statement recorded under Section 161 Cr.P.C. but were not found so mentioned.
Similarly, PW. 12 Yasir Shahid nominated appellant Zeeshan with the role of firing at his father Shahid Ahmad Khan (deceased) but during cross examination said witness stated that he did not mention in his statement before police of viewing Zeeshan, appellant while firing at his father Shahid Ahmad Khan (deceased). He was also confronted with the statement Ex.DF where it was not so recorded that after firing shots appellant Zeeshan ran away. Third witness of ocular account Mst.
Farkhanda Shamim, PW.13, who although not nominated the appellant and his co-accused but in her examination-in-chief stated that one of them (accused) is present before this court today as accused. She further stated that he made firing at her brother Shahid (deceased) and Feroza Shahid (deceased). She was confronted with her statement Ex.DG, her statement before the police where fact that both the accused persons injured her brother and Bhabi and left place of occurrence, was not so recorded. From afore discussed ocular account, it is crystal clear that all PWs made flagrant improvements in their statements by nominating the appellant and his co- accused and assigning specific role which were not got recorded in their statements under Section 161 Cr.P.C. Ocular account also reflects that there are contradictions among the statements of the witnesses. In complaint Ex.PT, complainant leveled allegations of firing against both the un-known accused persons while in the trial court Zahid Ahmad Khan, PW.11, Yasir Shahid, PW.12 assigned role of firing only to the appellant Zeeshan @ Shani. It is also relevant to mention that complainant Arslan Shahid in complaint Ex.PT mentioned Zahid Ahmad Khan, PW.11, Yasir Shahid, PW.12 and himself as eye witnesses but he did not mention that Mst. Farkhanda Shamim, PW.13 also witnessed the occurrence.
12. As far as the stance of prosecution is concerned that complainant not produced before the learned trial court that he got recorded his supplementary statement on the same day nominating appellant as an accused is concern this stance is belied by the statement of Khurram Shehzad, Draftsman PW.14, who stated before the learned trial court that he took rough notes on the instructions of police and pointing out of PWs but the fact remains that name of appellant does not figure in scaled site plan Ex.PP. We may observe here, had complainant nominated appellant on the same day through supplementary statement name of the appellant should have been mentioned by PW, this fact also creates doubt in the prosecution story and inference can be drawn that supplementary statement of complainant was recorded at belated stage in order to involve appellant in this false case
13. The evidence of prosecution also reflects that the fire shots were made by the assailants from the same level i.e. from courtyard while medical evidence adduced by prosecution suggests otherwise. In the present case, autopsy was not carried out soon after the death, rather after exhumation post mortem was carried out by medical board. In order to prove autopsy on the dead body the prosecution produced PW.7 Doctor Abdul Wahid Shah, Doctor Kokab Sultana, PW.8. The members of medical board, after exhumation of graves of Shahid Khan and Mst. Feroza (deceased) took samples and gave opinion of the board, as per opinion in the light of the finding of both opined as under " the side of entry would multiple injuries of visra and location of metallic piece at the level of left sacro illiac joint was highly suggestive that murderer was at the above level and right side of the deceased"
The afore-referred opinion of medical board shows that assailants were at a higher pedestal as compared to deceased and thereby medical evidence adduced by prosecution is not corroborating ocular account furnished by PWs. Moreover, prosecution has also stressed on the fact that unknown assailants while departing left behind a "Chadder" and a Sindhi Topi, it is noted that complainant Shahid in complaint Ex.PT mentioned the colour of said "Chadder" as brown while PW.11 in his statement-in-chief stated as "Kali Chadder". Said Zahid Ahmad, PW.11 was confronted with his statement, Ex.DE where word "Kali Chadder" is not mentioned but word "Garam Chadder" is mentioned. PW.12 simply mentioned "Chadder" P.2 taken into possession by police along with Topi, P1, vide recovery memo Ex.PL, attested by Zahid Ahmad PW.11 and PW.12 Yasir Shahid. PW.12 Yasir Shahid during cross examination further dented the prosecution case while stating that "Garam Chadder" P.2 and Sindi Topi, P.1 were not taken into possession by police in his presence.
14. Recovery of "Chadder" P.2 and Sindi Topi, P.1 is material aspect of the case as prosecution also brought on record from the mouth of Zahid Ahmad, PW.11 that on 31-07-2005 brother of accused Rustam Khan identified Topi, P1 and Kali Chadder, P.2 and identification memo Ex.PN was attested by him and Yasir Shahid, PW.12 but PW.12 Yasir Shahid did not corroborate this aspect of the testimony of PW.11 Zahid. Moreover, said Rustam Khan, who identified P.1 and P.2 was not produced by the prosecution to connect appellant with the commission of offence.
15. It is also relevant to mention that in complaint Ex.PT, Arslan Shahid, complainant did not give the description and salient features of the assailants and the same was the position of testimony of PWs of ocular account. It has also come on the record during evidence that eye witnesses/PWs and Zeeshan @ Shani appellant was residing in the same Mohallah near the place/house of occurrence. Then the question is that why name of appellant could not be mentioned by the complainant Arslan Shahid and other PWs of ocular account. There is yet another important factor in this case is that identification parade was not conducted in this case. It is settle law that when accused are not nominated in the FIR, identification parade is necessary. In this respect, we are fortified by the esteem judgment passed by the Hon'ble Supreme Court of Pakistan reported in case titled Mursal Kazmi alias Qamar Shah & another Vs. The State (2009 SCM R 1410). Wherein in Para No.9 of the judgment, the Hon'ble Supreme Court of Pakistan observed as under:- "9. A similar view was expressed by this Court in the case of Muhammad Azam v. State 1997 SCM R 1489 as follows:- "No identification parade was carried out which was very much necessary in view of the victim's initial report lodged with the police. As such the identity of the accused connecting them with commission of the offence is missing."
We may also refer to the case of Farman Ali v. State 1997 SCM R 971 wherein it was observed that:-- "Holding of identification test becomes necessary in cases, where names of the culprits are not given in the F.I.R. Holding of such test is check against false implication and it is a good piece of evidence against the genuine culprits."
16. Another aspect of prosecution case is in the shape of recoveries. Zahid Ahmad Khan, PW.11 stated that on 21-04-2005 police took into possession four crime empties P.3/1-4 missed bullet P.4 and one live bullet P.5, recovery memo Ex.PM attested by him and Yasir Shahid, PW.11. PW.11 is also attesting witness of recovery memo Ex.PO, through which pistol P.6 was recovered after disclosure and pointation of appellant. Evidence of recoveries do not require detail discussion because Yasir Shahid, PW.12 did not corroborate Zahid Ahmad Khan, PW.11 regarding collection of crime empties from the scene of occurrence vide recovery memo Ex.PN. Moreover, the report of FSL in this case is negative. So, the recovery of pistol is of no help to the prosecution.
17. It is an established principle of law by now that prosecution has to prove its case against the accused by standing on its own legs and it cannot take any benefit from weakness of the defence case. In this regard we are fortified from the case law reported as "Muhammad Shah vs. The State (2010 SCM R 1009)".
18. In view of all above, the persecution remained failed to discharge its responsibility of proving the case against the appellant beyond the shadow of doubt. It is also settled by now 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 incident case as discussed in the preceding paras, is replete with circumstances which have created serious doubts about the prosecution case. In the case of Muhammad Akram vs. 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 accrued in favour of the accused as matter of right and not a grace. It was observed by this court in the court of Tariq Pervaiz vs. 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 created reasonable doubt in 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 or concession but as a matter of right."
19. In the light of above discussion, we are of the considered view that prosecution has miserably failed to produce cogent, reliable, trustworthy and sure footed evidence to prove heads of charge against the appellant rather prosecution has made flagrant improvements in their statements regarding material features of actual incident like nominating appellant, assigning specific role of inflicting injuries to the deceased, reasons which were confronted during cross examination and caused serious doubts in prosecution, therefore, we accept Criminal Appeal No. 76-J of 2010 filed by Zeeshan alias Shan, appellant, set aside his conviction and sentence recorded by the learned trial court and acquit him of the charges leveled against him by extending him the benefit of doubt. He is in jail. He be released forthwith from jail if not required in any other case.
18. Murder Reference No.113 of 2010 is answered in negative and sentence of death awarded to Zeeshan alias Shani (convict) is not confirmed.