SADAQAT ALI KHAN, J.---This single judgment shall dispose of Criminal Appeal No,173-J of 2013 filed by Imran Ishaque appellant (against his conviction), Criminal Appeal No,894 of 2013 filed by one Barkat Masih (father of the complainant and Shakoor Masih deceased against acquittal of co- accused namely Javed Masih, Pervaiz Masih alias Vicky, Jamshaid alias Shera Masih and Samuel Atrey Masih) and Murder Reference No,193 of 2013 sent by the learned trial court for confirmation of the death sentence of Imran Ishaque appellant or otherwise as the above mentioned three matters have arisen out of the same judgment dated 31.05.2013 passed by learned Additional Sessions Judge, Lahore according to which the appellant was convicted and sentenced as under:- Imran Ishaque appellant: was convicted under section 302(b), P.P.C. And sentenced to death with compensation of Rs,1,00,000/- to the legal heirs of Shakoor Masih deceased under section 544-A, Cr.P.C. Which if realized/recovered shall be distributed amongst the legal heirs of each of the deceased in accordance with the Sharai share and in default of making payment of compensation amount, the convict/appellant shall further undergo S.I. For six months by the learned trial court in case FIR No,949 dated 26.12.2005 under sections 302, 201, 34, P.P.C., Police Station South Cantt.
Lahore, whereas his co-accused namely Javed Masih, Pervaiz Masih alias Vicky, Jamshaid alias Shera Masih and Samuel Atrey Masih have been acquitted through the impugned judgment.
2. The facts of the case have been stated by Ghafoor Masih P.W.2 (real brother of Shakoor Masih deceased) in his Statement before the learned trial court which is hereby reproduced for narration of the facts:- "On 26.12.2005, at about 12.05 p.m. Night, my brother Manzoor Masih was a rickshaw driver and he came back and I opened the door of my house and saw in the light of electricity that Vicki, Shera, Imran Ishaque, Samuel Attray, Javaed Masih were talking with my brother Shakoor Masih outside the house. I went towards my brother Shakoor Masih, he asked me to go to home and I will (sic.) coming. I went to my house and slept and woke up early in the morning and saw my brother Shakoor Masih was not sleeping in the house. I searched the Shakoor Masih but in vain. We saw that the dead body of Shakoor Masih was lying under the jersi in plot near our house. We saw that my brother was seriously injured on his arm, head and belly with a sharp edged weapon and he was also strangulated. The motive behind the occurrence is that Javed Masih, Vikki Masih, Shera Masih and Samuel Masih committed the murder of my brother as the litigation was pending between us and the accused and all the accused with their consultation has committed the murder of my brother Shakoor Masih."
3. After registration of the case, investigation started and on completion of the same report under section 173, Cr.P.C. Was submitted in the trial court.
4. Learned trial court after observing legal formalities provided under the Criminal Procedure Code framed the charge against Imran Ishaque appellant and his co-accused namely Javed Masih, Pervaiz Masih alias Vicky, Jamshaid alias Shera Masih and Samuel Atrey Masih (since acquitted) under sections 302, 201, 34, P.P.C. To which they pleaded not guilty and prosecution evidence was summoned.
5. The prosecution produced Arshad Masih. P.W.7, Ghaffoor Masih (real brother of Shakoor Masih deceased) P. W.2, Khurram P.W.3, Muhammad Asghar 10588/C P.W.4, Syed Younas Bokhari P.W.5, Muhammad Imran 14086/C P.W.6, Muhammad Aslam ASI P.W.7, Talat Rauf 10986/C P.W.8, Muhammad Abbas ASI P.W.9, Ghulam Abbas S.I. P.W.10, Dr. Muhammad Zafar P.W.11 and Zulfiqar Ali 5153/HC P.W.12, whereas PWs namely Mansha Masih, Gulzar Masih (being won over by the accused), Barkat Masih, Dilawer Ali 13403/C, Muhammad Sarwar 11972/C, Wajid Ali 6411/C (being unnecessary), Muhammad Waris S.I. (being dead), Shakeel Ahmad ASI and Abdul Aziz ASI were given up by the prosecution and after tendering certain documents i,e. Reports of Chemical Examiner Ex.P.M., Ex.P.N, Ex.P.Q and those of Serologist Ex.P.R, Ex.P.S and Ex.P.T closed the prosecution evidence,
6. Medical evidence was furnished by Dr. Muhammad Zafar (P.W.11), who conducted post-mortem examination on the dead body of Shakoor Masih deceased on 27.12.2005 and observed as under:- "INJURIES
1. Multiple lacerated wound 11 in number in an area of 14 x 15 c.m. Present on the partial frontal and temporal, regions on left side of skull, 3 c.m. Above left ear. Maximum size 7 x 1 c.m. And minimum 5x1 c.m.
2. Multiple lacerated wounds in an area of 14 x 7 cm. On forehead and face. Maximum size 8 x 3 c.m.
Minimum 2 x 1 c.m.
3. Lacerated wound 8x3 c.m. On front and left side of neck.
4. Abraded and lacerated area 20 x 10 c.m on the front of abdomen.
5. Multiple abrasion on front of chest in an area of 28 x 26 c.m.
6. Multiple abrasion on right and left upper limbs.
7. Multiple lacerated wound in an area of 14 x 10 c.m.
8. Multiple abrasion on front and back of lower limbs. ON DISSECTION .
Jaw was fractured. Face bones were fractured. Scalp tissues were bruised on left side. There was depressed fracture of left frontal bone. Left partial and temporal bones were fractured. There was fracture of base of skull. Brain was damaged.
THORAX All structures on left side of neck are crushed. Hyoid bone on left side is broken. Larynx and trachea were damaged. Heart was empty. Other organs were healthy.
OPINION: All the injuries mentioned above were ante-mortem and were caused by a blunt weapon that in this case was caused by damage to face and skull bones and brain under Injury Nos. 1 and 2. Injury Nos. 1 and 2 were collectively fatal in an ordinary course of nature. Probable time that elapsed between injury and death was few minutes. Between death and post mortem was 12 to 24 hours."
7. On the other hand, statements of appellant and his co-accused mentioned above were recorded under section 342, Cr.P.C. In which they refuted the allegations leveled against them by the prosecution. They have neither opted to appear under section 340(2), Cr.P.C. Nor produced any defence evidence. In reply to the question. "Why this case against you and why the PWs deposed against you?" Imran Ishaque appellant replied as under:- "I have been falsely roped into this case. I have not been nominated in the FIR. The P.Ws and the complainant are close relatives inter se and of the deceased Shakoor Masih and the P.Ws while improving their statements dishonestly have named me as an accused in this case. The alleged occurrence is unseen incident. I have no nexus with the commission of alleged occurrence. I am a poor person having no back. The police just to show their efficiency and in collusion with the complainant party with mala fide intention to strengthen false prosecution case have booked me in this case. In the street where house of complainant and P.Ws. Ghafoor Masih and Khurram Masih situate no street light existed at the time of alleged occurrence nor it exists at present time. The complainant party during investigation named one Gulzar Masih as culprit of the occurrence but the said Gulzar was released by the police under some deal and he was cited as a P.W. But prosecution did not produce him and he has been given up. This fact loudly speaks about mala fide of complainant party and innocence of accused in this case."
8. After conclusion of the trial, learned trial court while acquitting Javed Masih, Pervaiz Masih alias Vicky, Jamshaid alias Shera Masih and Samuel Atrey Masih (co-accused of Imran Ishaque appellant) convicted the appellant with above stated sentence. Hence these appeals.
9. Learned counsel for Imran Ishaque appellant has contended that:- i. The judgment of the trial court dated 31.05.2013 is against law and facts and is liable to be set aside; ii. It is submitted that the story of the prosecution is improbable and not believable; iii. It is further submitted that prosecution has failed to prove its case against the appellant beyond shadow of doubt and the learned trial court wrongly convicted appellant in surmises and conjectures; iv. And lastly submitted for the acceptance of the appeal of the present appellant;
10. On the other hand, learned DDPP assisted by learned counsel for Barkat Masih (father of Shakoor Masih deceased) has vehemently opposed the appeal and submitted that the prosecution has proved its case beyond any shadow of doubt against the appellant with solid evidence and prayed for the dismissal of the present appeal. Learned counsel appearing on behalf of the complainant while arguing Crl. Appeal No,894 of 2013, filed by Barkat Masih (father of Shakoor Masih deceased) submits that the learned trial court without appreciating the prosecution evidence has acquitted Javed Masih, Pervaiz Masih alias Vicky, Jamshaid alias Shera Masih and Samuel Atrey Masih respondents and the judgment of the learned trial court to the extent of their acquittal may kindly be set aside and they may be convicted in accordance with law as the prosecution has proved its case against the said acquitted accused Javed Masih, Pervaiz Masih alias Vicky, Jamshaid alias Shera Masih and Samuel Atrey Masih).
11. We have heard the learned counsel for the appellant as well as learned DDPP assisted by learned counsel for the complainant and perused the record.
12. The detail of prosecution case has been given in para. 2 of this judgment, therefore, there is no need to repeat the same to avoid duplication and repetition.
13. According to the FIR, occurrence took place on 26.12.2005 at morning time, whereas FIR was registered on the same day i,e.
26.12.2005 at 12:30 p.m. On the statement of Manzoor Masih complainant (since dead). Deceased of this case is Shakoor Masih. Prosecution has introduced following accused in this case:-
1. Javed Masih (These four accused have been acquitted by the learned trial court through impugned judgment and Criminal Appeal No,894 of 2013, filed by Barkat Masih (father of Shakoor Masih deceased) has been dismissed by this Court today)2.Pervaiz Masih alias Vicky 3.Jamshaid alias Shera Masih 4.Samuel Atrey Masih 5.Imran Ishaque (appellant)
No Person from the prosecution side claims to be the eye-witness of the occurance rather case of the prosecution is based on circumstantial evidence. Imran Ishaque appellant has not nominated in the FIR. Motive of the occurance has not been attributed to Imran Ishaque appellant rather the same has been attributed to Javed Masih, Pervaiz Masih alias vicky, Jamshaid alias Masih alias Vicky, Jamshaid alias Shera Masih and Samuel Atrey Masih co-accused who have been acquitted by the learned trial court through the impugned judgment. Ghafoor Masih real brother of Shakoor Masih deceased (P.W.2) stated in his statement (examination-in-chief) that on 26.12.2005 at 12:05 p.m. (night) his brother Manzoor Masih (not produced as witness) rickshaw driver came back and he opened the door of his house and saw in the light of electricity that Javed Masih, Pervaiz Masih alias Vicky, Jamshaid alias Shera Masih and Samuel Atrey Masih (acquitted accused) and Imran Ishaque appellant were talking with his brother Shakoor Masih deceased outside the door. On asking, his brother Shakoor Masih deceased asked him to go to home and he will be coming. He further stated that he went back to his house and slept and on morning, he found that his brother Shakoor Masih deceased was not present in his house. He further stated that during search, he saw that the deadbody of Shakoor Masih deceased is lying under the jersi in plot near his house. Above mentioned story is neither plausible nor believable. Even otherwise, this last seen evidence has been disbelieved to the extent of Javed Masih, Pervaiz Masih alias Vicky, Jamshaid alias Shera Masih and Samuel Atrey Masih (acquitted accused) and the same cannot be believed to the extent of Imran Ishaque appellant. Further last seen evidence is a weak type of evidence unless corroborated with some other piece of evidence which is conspicuously missing in the present case. Same can be procured at any time during the investigation when direct evidence is not available to the prosecution. Reliance in this regard is placed on case reported as "Altaf Hussain v.
Fakhar. Hussain and another" (2008 SCM R 1103) in which Hon'ble Supreme Court of Pakistan has observed at page 1105 as under:- "It is settled principle of law that the last seen evidence is a weakest type of evidence unless corroborated with some other piece of evidence which is conspicuously missing in this case."
14. Khurram P.W.3 (real son of Shakoor Masih deceased) stated in his statement (examination-in- chief) that on 25.12.2005, he along with his father Shakoor Masih deceased, his mother Nasreen (not produced as witness), sisters and brothers were sitting in his house. At about 11:45 p.m. His door was knocked, his father Shakoor Masih deceased sent him to see at the door and he saw Imran Ishaque appellant and above mentioned acquitted accused were standing there who were identified by him in the light of bulb. They asked him to send his father Shakoor Masih deceased, who came at the door and met them. He further stated that his father Shakoor Masih deceased asked him to go inside the room and he thereafter went to sleep. He further stated that on morning he did not find his father Shakoor Masih deceased in his house and started search for his father. During search, he saw blood stained clothes of his father Shakoor Masih deceased being burnt by the Imran Ishaque appellant and acquitted accused in the plot. Deadbody of his father Shakoor Masih deceased was also recovered from the said plot. P.W.2 Ghafoor (paternal uncle of this witness Khurram P.W.3) is also witness of recovery of deadbody of Shakoor Masih deceased, who stated in his statement (examination-in-chief) that during search, deadbody of Shakoor Masih deceased was found lying in the plot near his house but he did not state that he had seen blood stained clothes of Shakoor Masih deceased being burnt by the accused at the time of recovery of deadbody of Shakoor Masih deceased. This material contradiction is not ignorable. Above mentioned conduct of this witness is unnatural who went to sleep while leaving his father Shakoor Masih deceased in the odd hours of the c night (11:45 p.m. On 25.12.2005) in the company of the accused. The story narrated by this witness is neither plausible nor believable.
15. Muhammad Asghar 10588/C P.W.4 stated in his statement (examination-in-chief) that Imran Ishaque appellant on 22.02.2006 during interrogation made disclosure and got recovered two bricks pieces P-1/1-2 blood stained and five pieces of broken glass P-2/1-5 from his residential house situated in Maryam Colony, Lahore Cantt. He further stated that on 27.02.2006 Imran Ishaque appellant disclosed and got recovered scrapper P-3 from the northern corner of his residential house while digging the earth, which was taken into possession through recovery memo Ex. P.13.
The positive reports of Serologist Ex.P.S and Ex.P.T. Pertaining to two pieces of bricks and five pieces of bottle/glass and `Nehla' iron found stained with human blood in absence of report regarding blood group are inconsequential in the present case. Even otherwise, considering the facts of this case, above mentioned evidence of recovery is not believable. The law is settled by now that one tainted piece of evidence could not corroborate another piece of tainted evidence because if this is allowed to be done then very necessity of corroboration would be frustrated. Reliance is placed on case titled "Mursal Kazmi alias Qamar Shah and another v. The State" (2009 SCM R 1410) in which Hon'ble Supreme Court of Pakistan has observed at page 1417 as under:- "It is well-settled that one tainted piece of evidence could not corroborate another piece of tainted evidence because if this allowed to be done then very necessity of corroboration would be frustrated."
16. In view of the above discussion, case of the prosecution is not free from doubt. It is settled principle of law that for giving benefit of doubt, it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in the prudent mind about the guilt of the accused, then he would be entitled to its benefit not as a matter of grace or concession, but as of right. Reliance is placed on case reported as "Muhammad Akram v. The State" (2009 SCM R 230), in which Hon'ble Supreme Court of Pakistan has observed in para No,13 of page 236 as under:- "The nutshell of the whole discussion is that the prosecution case is not free from doubt. 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 SCMR 1315 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 he would be entitled to its benefit not as a matter of grace or concession, but as a matter of right."
17. For the foregoing reasons, Criminal Appeal No,1734 of 2013 filed by Imran Ishaque appellant is accepted and conviction and sentence of the appellant awarded by the learned Trial Court through the impugned judgment are hereby set aside. Imran Ishaque appellant is ordered to be acquitted in case FIR No,949 dated 26.12.2005 under sections 302, 201, 34, P.P.C., Police Station South Cantt. Lahore. He is directed to be released forthwith if not required in any other case. Murder Reference No, 193 of 2013 is answered in NEGATIVE and death sentence of Imran Ishaque appellant is NOT CONFIRMED.
18. So far as Crl. Appeal No,894 of 2013 filed by Barkat Masih. Father of Shakoor Masih deceased) against acquittal of Javed Masih, Pervaiz Masih alias Vicky, Jamshaid alias Shera Masih and Samuel Atrey Masih (accused/respondents) is concerned, the same, in view of above discussion, has no merits and is dismissed.