' MANZOOR AHMAD MALIK, C.J.---Walait Ali (appellant) was tried by the learned Additional Sessions Judge, Tandlianwala in a private complaint filed under Section 302, P.P.C. Read with Section 34, P.P.C., by Muhammad Riaz complainant being dissatisfied with police investigation conducted in case FIR No. 10/2012, dated 05.01.2012, offence under Section 302 read with Section 34, P.P.C., registered at Police Station Saddar Tandlianwala, District Faisalabad for the murder of Manzoor Ahmad (deceased) brother of the complainant. Vide judgment dated 04.01.2013 passed by the learned Additional Sessions Judge Tandlianwala, the appellant has been convicted under sections 302(b) and 337-D, P.P.C. And sentenced as under:-- "30. ...Therefore, accused Walayt Ali present in court is convicted under section 302(b), P.P.C. For commission of Qatle-Amd of Manzoor Ahmed deceased and sentence him for rigorous Imprisonment for life keeping in view the peculiar and mitigating circumstances of the case. He is also held liable to pay Rs.100,000/- as compensation under section 544-A, Cr.P.C. To the legal heirs of Manzoor Ahmed deceased which are liable to be recovered as Land Revenue, in payment of default thereof he shall further undergo for six months' Simple Imprisonment. He is also convicted under section 337D, P.P.C. For commission of jurh Jaifah and he is held liable to pay Arsh 1/3 of Diyat and sentenced him for Rigorous Imprisonment for ten years. All the sentences awarded to him shall run concurrently. He is given the benefit of section 382-B, Cr . P. C "
' Through the same judgment, learned trial court acquitted Zulfiqar Ali alias Qari co-accused of the appellant as the prosecution has failed to prove its case against him beyond any shadow of doubt and no appeal against his acquittal was filed either by the State or by the complainant. It is pertinent to mention here that Muhammad Riaz (appellant) has filed two separate Criminal Appeals, one bearing Crl Appeal No.584 of 2013 through jail and the other bearing Crl Appeal No.218 of 2013 through his learned counsel. Therefore, Crl Appeal No.584 of 2013 of Walait Ali, appellant is hereby disposed of being superfluous.
2. The prosecution story, as set out in the FIR (Exh.CW.2/A) registered on the application of Muhammad Riaz, complainant (PW.1), is that he (complainant) was resident of Chak No.406/GB and a shopkeeper. The assailants were also residents of the same village. On 16.11.2011 at about 7:30 p.m. Complainant's brother namely Manzoor Ahmad aged 34/35 years was sitting on his sweet shop situated in Deh. The assailants namely Walait Ali and Zulfiqar Ali alias Qari while armed with firearms came there. On their arrival, Walait Ali (appellant) made a fire with carbine which landed on the abdomen of Manzoor Ahmed at left side. Second fire was made by Zulfiqar alias Qari with single barrel gun which hit Manzoor Ahmad below his abdomen at back on left side of buttocks.
Manzoor Ahmad sustained grievous injuries. On hue and cry and on the report of firing complainant along with Kareem son of Zaman Rehmani resident of village Burj Jeevey Khan and Muhammad Hussain son of Kanda resident of the same village came at the spot and witnessed the occurrence. On seeing the witnesses, the assailants went away while making firing and extending threats that if anybody came near he would be done to death. Complainant took Manzoor Ahmad in injured condition to Tandlianwala Hospital and obtained his medico legal report bearing No.894/2011. Doctor of Civil Hospital Tandlianwala referred Manzoor Ahmad to Faisalabad Civil Hospital. After 14/15 days, Manzoor Ahmad brother of the complainant was relieved from Civil Hospital, Faisalabad and complainant took him to Okara where he also remained under treatment.
Later on due to critical condition of Manzoor Ahmad again he was shifted to Civil Hospital, Faisalabad. On 10.12.2011 at 05.45 a.m.
' Manzoor Ahmad succumbed to the injuries and the complainant's side got issued the death certificate of Manzoor Ahmad. It was further alleged in the FIR that respectables compelled the complainant's side not to initiate criminal proceedings against the assailants, therefore, they buried Manzoor Ahmad.
' Motive behind the occurrence as alleged in the FIR was that Walaiat (appellant) and Zulfiqar Ali alias Qari (accused since acquitted) had suspicion that Manzoor Ahmad brother of the complainant had illicit liaison with Mst. Rajan Bibi wife of Zulfiqar Ali alias Qari and due to the said grudge, they had committed the murder of Manzoor Ahmad:
3. Being dissatisfied with the Police investigation, Muhammad Riaz complainant instituted a private complaint (Exh.PB) on 25.07.2012. Prosecution story, as set out in the private complaint titled as "Muhammad Riaz v Walait Ali etc.", is that on 16.11.2011 at 07.30 p.m. Complainant's brother namely Manzoor Ahmad was sitting in his sweet shop situated at Chak No.406/GB Tehsil Tandlianwala District Faisalabad. The accused persons while armed with firearms came there. Walait made a fire with carbine, which landed on the abdomen of Manzoor Ahmad at left side. Second fire was made by Zulfiqar alias Qari with single barrel gun which landed on left buttock of Manzoor Ahmad who became seriously injured. It was alleged in the private complaint that besides the complainant, Nadeem and Muhammad Hussain had witnessed the occurrence. The accused persons while making firing fled away from the spot by extending threats that whoever came near would be done to death. The complainant's side took Manzoor Ahmad in injured condition to THQ, Hospital Tandlianwala, where Manzoor Ahmad made a statement before the doctor that Walait Ali and Zulfiqar Ali alias Qari had assaulted him. Doctor issued medico legal certificate and referred Manzoor Ahmad to Civil Hospital, Faisalabad. Complainant moved an application which was attached with medico legal report, to Police station for registration of FIR and took his brother to Civil Hospital Faisalabad. After 14/15 days, he shifted Manzoor Ahmad to District Okara from Civil Hospital, Faisalabad where Manzoor Ahmad also remained under treatment. Thereafter, due to his critical condition again he was shifted to Civil Hospital, Faisalabad. On 10.12.2011 at 05.45 a.m.
Manzoor Ahmad succumbed to the injuries. Complainant's ,side got issued the death certificate of Manzoor Ahmad. It was further alleged in the private complaint that on 18.11.2011 Walait Ali, etc also committed the murder of Rajan Bibi and the FIR of said murder case was registered against them and because of the said reason respectables forced the complainant not to get register the case against the accused persons. Complainant was a poor man and a kumhar by caste. He was a kammi in the village and upon compelling by the respectables, they buried Manzoor Ahmad.
Motive behind the occurrence as alleged in the private complaint was to the effect that the accused persons had suspicion that Manzoor Ahmad had illicit liaison with Mst. Rajan Bibi and due to the said grudge, they had committed the murder of Manzoor Ahmad. It was further alleged in the private complaint that the complainant had been visiting the police station to get register the case till 05.01.2012 but in vain. At last, the police of Police Station Sadar Tandlianwala wrote an application on the order of their high-ups and obtained thumb impression of the complainant on it and got registered the case. Doctor in connivance with the accused persons had mentioned only one firearm injury in the medico legal report (Exp.CW1/A) on the person of deceased instead of two.
The Investigating Officer did not make recovery from the accused and instead of declaring both the accused guilty mentioned one fire shot by Zulfiqar accused and thus transgressed his powers.
4. The appellant alongwith Zulfiqar Ali alias Qari were indicted by the learned trial court under Section 302, P.P.C. Read with Section 34, P.P.C. He was convicted and sentenced as mentioned in para 1 supra whereas his co-accused namely Zulfiqar Ali alias Qari has been acquitted by the learned trial Court. Hence this appeal.
5. Learned counsel for the appellant, in support of this appeal, contends that the appellant has falsely been implicated in this case; that as per written application (Exh.PA) of the complainant (PW.1), on the basis whereof FIR (Exh.CW.2/A) was registered, the occurrence qua launching of murderous assault upon Manzoor Ahmad, allegedly took place at 7:30 p.m. On 16.11.2011, who (Manzoor Ahmad) remained under treatment and subsequently died on 10.12.2011 whereas the matter was reported to the Police on 05.01.2012 at 6:30 p.m. i.e. About fifty days after the occurrence as well as twenty six days after the death of the deceased without there being any satisfactory explanation; that thereafter the complainant filed a private complaint against Walait Ali (appellant) and Zulfiqar Ali alias Qari co-accused (since acquitted) on 25.07.2012 i.e. About nine months after the incident; that there was a specific allegation against Zulfiqar Ali alias Qari (co- accused of the appellant since acquitted) that he made a fire with single barrel gun which landed on the left buttock of Manzoor Ahmad (deceased) but he has been acquitted by the learned trial court and his acquittal has not been challenged either by the complainant or by the State; that the prosecution evidence which has been disbelieved to the extent of Zulfiqar Ali alias Qari (co- accused of the appellant since acquitted) cannot be believed against the appellant without there being any independent and strong corroboration which is very much lacking in this case; that ocular account is in direct conflict with the medical evidence because it was the case of the prosecution in the FIR (Exh.CW.2/A), private complaint (Exh.PB) as well as before the learned trial Court that Walait Ali made a fire with carbine which landed on the abdomen of Manzoor Ahmad (deceased), whereas, the fire made by Zulfiqar alias Qari hit on the left buttock of Manzoor Ahmad (deceased) but Dr. Muhammad Arshad (CW.1) who medically examined Manzoor Ahmad (deceased) and prepared MLC No.894/2011 noted only one entry wound on the body of Manzoor Ahmad; that in the written application (Exh.PA) of complainant on the basis whereof formal FIR (Exh.CW.2/A) was registered, it was the case of the complainant that besides him Kareem and Muhammad Hussain had also witnessed the occurrence but in the private complaint (Exh.PB), complainant changed his version by stating that Nadeem and Muhammad Hussain witnessed the occurrence; that motive as set out in the FIR (Exh.CW/2/A), private complaint (Exh.PB) and before the learned trial court was to the effect that the accused persons had suspicion that Manzoor Ahmad (deceased) had illicit liaison with Mst Rajan Bibi wife of Zulfiqar Ali alias Qari but no independent witness qua motive was produced before the learned trial court; that in the FIR, private complaint as well as before the learned trial court, it was the case of complainant that at the time of incident Walait Ali (appellant) was armed with carbine but during the course of investigation nothing was recovered from the appellant; that viewing from all angles, the prosecution case is doubtful in nature and the appellant is entitled to the benefit of doubt not as a matter of grace but as of right.
6. On the other hand, learned Deputy Prosecutor General, assisted by learned counsel for the complainant; vehemently opposes this appeal on the grounds that there is no conscious or deliberate delay in reporting the crime to the police because in the FIR, private complainant as well as before the learned trial court it was the case of complainant that on compelling the respectables he could not report the matter to the police; that complainant's had no enmity against the appellant for his false implication in this case; that ocular account qua the injury caused by the appellant is fully supported by medical evidence; that motive has also been proved and even otherwise the same has not seriously been disputed by the defence; that the appellant cannot get any benefit from the acquittal of his co-accused namely Zulfiqar Ali alias Qari because the fire attributed to the said accused was an exit wound whereas firearm injury attributed to the appellant is an entry wound; that the prosecution has successfully brought home guilt against the appellant to the hilt and there is no merit in this appeal.
7. I have heard learned counsel for the parties as well as learned Deputy District Public Prosecutor for the State at a considerable length and have also gone through the record with their able assistance.
8. Salient features of the prosecution case are as under:-(a) The incident of launching murderous assault upon Manzoor Ahmad brother of the complainant, as per written application (Exh.PA) of Muhammad Riaz complainant (PW.1), on the basis whereof formal FIR (Exh.CW.2/A) was registered, took place on 16.11.2011 at 7:30 p.m., and subsequently Manzoor Ahmad died on 10.12.2011, whereas, the matter was reported to the police on 05.01.2012 at 6:30 p.m. i.e. About fifty days after the occurrence as well as about twenty six days after the death of deceased. There is no satisfactory explanation for this inordinate delay in reporting the matter to the police. Therefore, I hold that this inordinate delay in reporting the matter to the police casts serious doubts regarding the veracity of the prosecution story.
(b) Ocular account was furnished by Muhammad Raiz complainant (PW.1) and Muhammad Hussain (PW.2). In the FIR (Exh.CW.2/A) it was the case of complainant that besides him Muhammad Hussain and Kareem had witnessed the occurrence but in the private complaint (Exh.PB), filed about nine months after the occurrence, it was the case of complainant that he along with Nadeem and Muhammad Hussain had witnessed the occurrence. Admittedly, apart from the complainant both the witnesses of ocular account did not bother to report the matter to the police soon after the incident and remained mum for a period of about fifty days. Manzoor Ahmad died on 10.12.2011 and the complainant's side buried him without conducting his postmortem examination as well as reporting the matter to the police. Thereafter, on 05.01.2012 i.e. About twenty six days after the death of Manzoor Ahmad (deceased) 'complainant submitted an application for registration of case against Walait Ali (appellant) and one Zulfiqar Ali alias Qari. He also moved an application (Exh.CW.6/B) before the learned Area Magistrate for exhumation of the dead-body. Such like conduct of both the witnesses of ocular account namely Muhammad Riaz complainant (PW.1) and Muhammad Hussain (PW.2) is not appreciable. It has been noted that the complainant (PW.1) while appearing before the learned trial court made material improvements in his statement, he was confronted with his written application (Exh.PA) as well as contents of private complaint (Exh.PB) and the improvements were brought on the record. The relevant portion of cross examination of complainant (PW.1) is reproduced as under:- "I got recorded in Exh.P.A that injured Manzoor Ahmed got recorded the statement by the doctor "that accused Walayt and Zulfiqar have injured him" confronted with Ex. PA, where it is not recorded.
I. Got, recorded in Ex.PA that the hospital personnel gave us 4/5 days leave confronted with Ex.PA where it is not recorded. I got recorded in Ex. PA that the respectable of the village threatened me that in case I get the FIR registered, your remaining relatives should be murdered, confronted with Ex.PA where it is not so recorded but recorded as that respectable compelled us not to initiate legal proceedings. It is incorrect to suggest that I have made dishonest improvements in my court's statement. I got recorded in my private complaint Exh.PB that the District Headquarter. Hospital personnel gave leave to us for 45 days, confronted with Ex.PB where it is not record..."
' Even Muhammad Hussain (PW.2) during the course of his cross examination stated as under:-- "I never got recorded my statement in any court of law in this case. I never got recorded in this case before the police. I-never joined investigation before police. I never saw any police officer in the village, in connection with the investigation of this case. I never saw any draftsman at the place of injury of Manzoor Hussain..."
' In view of the above, I hold that the evidence of complainant (PW.1) and Muhammad Hussain (PW.2) is not reliable.
(c) Motive as set out in the FIR (Exh.CW.2/A), private complaint (Exh.PB) as well as before the learned trial court was to the effect that Walait Ali (appellant) and Zulfiqar Ali alias Qari (accused since acquitted) had suspicion that Manzoor Ahmad (deceased) had illicit liaison with Mst Rajan Bibi but no independent witness qua the motive was produced before the learned trial court.
Moreover, if it is presumed that the deceased had illicit liaison with Mst Rajan Bibi wife of Zulfiqar Ali alias Qari, then it was Zulfiqar Ali alias Qari who had strong motive to commit the murder of Manzoor Ahmad (deceased) but he was acquitted by the learned trial court and no appeal against his acquittal was filed either by the State or by the complainant. Therefore, the prosecution has failed to substantiate the motive against the appellant.
(d) So far as the medical evidence is concerned, in the FIR (Exh.CW.2/A), private complaint (Exh.PB) as well as before the learned trial Court it was the case of complainant that Walait All (appellant) made a fire with carbine which landed on the abdomen of Manzoor Ahmad (deceased). Zulfiqar Ali alias Qari made a fire with single barrel gun which landed on the buttock of Manzoor Ahmad (deceased) at left side. Dr. Muhammad Arshad (CW.1) who medically examined Manzoor Ahmad and Dr. Sanaullah (CW.3), who after exhumation, conducted postmortem examination on the dead-body of deceased noted only one entry wound on the person of Manzoor Ahmad (deceased).
(e) In the FIR, private complaint as well before the learned trial court it was the case of prosecution that at the time of incident Walait Ali (appellant) was armed with carbine and he made a fire which landed on the abdomen of Manzoor Ahmad (deceased) but during the course of investigation nothing was recovered at the instance of the appellant.
(f) There is another aspect of the case. Zulfiqar Ali alias Qari co-accused of the appellant was also implicated in this case with the similar allegation that he made a fire with single barrel gun which landed on the buttock of Manzoor Ahmad (deceased) at left side. He was tried alongwith the appellant but acquitted by the learned trial court and no appeal against his acquittal was filed, therefore, the prosecution evidence which has been disbelieved to the extent of acquitted co- accused of the appellant cannot be used against him for maintaining his convictions under sections 302(b) and 337-D, P.P.C. Without there being any independent and strong corroboration, which is very much C lacking in this case. I am mindful of the fact that the principle of falsus in uno falsus in omnibus is not applicable in criminal cases and for the safe administration of justice the courts are required to sift grain from the chaff but viewing from all angles there is only chaff and no grain, as no corroboration can be sought from the evidence of motive because of the reasons recorded in sub para (c) above.
10. Considering all the circumstances, I am of the considered view that the prosecution has failed to connect the appellant with the commission of crime. In "Ayub Masih v. The State" (PLD 2002 SC 1048), at page 1056, it was observed 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. For the foregoing reasons, Criminal Appeal No.218 of 2013 filed by the appellants is allowed, convictions and sentences awarded to the appellant vide judgment dated 04.01.2013 passed by the learned Additional Sessions Judge, Tandlianwala are set aside and the appellant is acquitted of the charges while extending him benefit of doubt. Walait Ali, appellant is in jail. He shall be released forthwith if not required to be detained in any other case.