' SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Muhammad Ramzan son of Nazir Ahmed, caste Mughal, resident of Lagar, Police Station, Manawala, District Sheikhupura (appellant) was involved in case FIR No,129, dated 21.03.2009, offence under Sections 460/459, 302/324, P.P.C., registered with Police Station, Khurianwala, District Sheikhupura, and was tried by the learned Additional Sessions Judge, Sheikhupura. The learned trial court seized with the matter in terms of judgment dated 01.02.2011, convicted the appellant under Sections 460, P.P.C., read with Section 302(b), P.P.C., and sentenced him to death. He was burdened to pay Rs,1,00,000/- as compensation to the legal heirs of deceased in terms of Section 544A, Cr.P.C. And in case of default in payment thereof, to undergo S.I.
For six months. The appellant was also convicted under Section 459, P.P.C. Read with Section 324, P.P.C., and sentenced him to ten years R.I. With direction to pay fine Rs,50,000/-. Benefit of Section 382-B, Cr.P.C. Was extended in favour of the appellant.
2. Feeling aggrieved by the judgment of the learned trial court, the appellant impugned the same by way of filing Crl. Appeal No,226/2011 while the learned trial court forwarded Murder Reference No,84/2011 for confirmation of death sentence inflicted upon Muhammad Ramzan/convict in terms of section 374, Cr.P.C. As both these matters are arising out of one and the same judgment of the learned trial court, therefore, these are being disposed of through single judgment.
3. Prosecution story as contained in the FIR (Exh.PC) lodged on the complaint (Exh.PC/1) of Ashiq Ali complainant (PW-5) is that he is a cultivator by profession. The complainant and his elder brother Nazir Ahmed had been residing jointly in one house. The marriage of one son and two daughters of the elder brother of the complainant was to be held on 29.03.2009. The dowry articles were available in the house. In the mid night of 20/21.03.2009, the complainant, his brother Nazir Ahmed and Muhammad Siddique son of Hakim Ali, caste Jat, resident of the deh were sleeping in a room.
The wife of the complainant namely Hanifan Bibi was sleeping in the veranda whereas his bhabhi Mst.Bashiran Bibi along with sons were sleeping in another room. At about 1:00 a.m. (night), unknown accused persons armed with firearms trespassed into the house while scaling over the wall. They awakened the wife of the complainant on gun point and demanded keys of the house.
Upon the hue and cry of the wife of the complainant, the complainant, his brother Nazir Ahmed, Muhammad Siddique son of Hakim Alim and bhabhi Bashiran Bibi woke up and saw that one of the accused had been causing injuries with dagger to the wife of the complainant. The other accused 'bade fire shot to the wife of the complainant. On seeing the PWs, one of the accused made fire shot hitting the bhabhi of the complainant. Due to which, she fell down. The accused persons fled away through the outer door. Upon their hue and cry, a number of people gathered at the spot.
They attended both the injured. The wife of the complainant succumbed to the injuries at the spot, whereas Mst. Bashiran Bibi was taken to hospital in injured condition. The complainant stated that the accused persons had committed murder of his wife and caused injuries to his bhabhi with intent to commit dacoity.
4. On 21.03.2009, Ashiq Ali complainant (PW-5), presented application (Exh.PC/1) before Saif Ullah, ASI (PW-14) in the Police Station. On the basis of the same, he chalked out formal FIR (Exh.PC) without any addition or omission and investigation of this case was entrusted to Qalib Hussain, S.I.
(PW-15). The Investigating Officer inspected the place of occurrence, took the dead body into possession, prepared injury statement (Exh.PG), inquest report (Exh.PM) and drafted application for postmortem examination (Exh.PN). The Investigating Officer took into possession blood stained earth from the place of occurrence vide recovery memo (Exh.PF) attested by Nazir Ahmad and Muhammad Siddique, PWs. He also collected hair of the deceased (P-6) from the place of occurrence vide recovery memo (Exh.PE). Muhammad Ilyas (PW-9), foot-tracker took foot prints through mold in presence of the Investigating Officer vide memo (Exh.PD) attested by Ashiq Ali and Muhammad Ilyas, PWs. The Investigating Officer handed over the dead body to Nadeem Asif, 885/C (PW-2) and Javed Iqbal 622/C for escorting the same to mortuary for postmortem examination. The Investigating Officer prepared un-scaled site plan of the place of occurrence (Exh. P0) and recorded statements of PWs under Section 161, Cr.P.C., After autopsy, Nadeem Asif, 885/C (PW-1), handed over the last worn clothes of the deceased to the Investigating Officer, which he took into possession vide recovery memo. (Exh.PG). The Investigating Officer handed over the case property to Moharrir of the police station for safe custody and onward transmission to the quarters concerned. On 25.03.2009, the Investigating Officer took Muhammad Riaz draftsman (PW3) to the place of occurrence, who took rough notes on the pointing out of the PWs and directions of the Investigating Officer and thereafter on 27.03.2009 he handed over the scaled site plan (Exh.PA) and its notes (Exh.PA/1) to the Investigating Officer. On 28.04.2009, the Investigating Officer recorded statement of Mst. Bashiran Bibi, injured (PW-6) under Section 161, Cr.P.C. On 24.09.2009, the Investigating Officer arrested Muhammad Ramzan (accused) and sent him to judicial lock-up on the same day. On 01.10.2009, test identification parade was held in District Jail Sheikhupura and the accused was identified by the PWs. On 02.10.2009, the Investigating Officer obtained physical remand of the accused. On 03.10.2009, Muhammad Ilyas, Foot Tracker, identified the foot print and stated that it is the same which was taken by him on 11.10.2009. On 07.10.2009, the Investigating Officer again obtained physical remand of the accused for four days. On 10.10.2009, the accused got recovered dagger (P-5) from the graveyard in presence of the PWs which was taken into possession by the Investigating Officer vide recovery memo (Exh.PJ). The Investigating Officer prepared site plan of the place of recovery (Exh.PP). The Investigating Officer also got registered a case under Section 13 of Pakistan Arms Ordinance (XX), 1965 against the appellant. On 11.10.2009, the Investigating Officer again obtained physical remand of the accused. On 13.10.2009, the accused got recovered carbine, (P-4) from the graveyard in presence of the PWs which was taken into possession vide recovery memo (Exh.PH). The Investigating Officer prepared site plan of the place of recovery of carbine (P-4). The Investigating Officer collected the MLR of Bashiran Bibi, injured PW, from the hospital.
5. Having found the appellant guilty, the Investigating Officer prepared report under Section 173, Cr.P.C. And sent the same to the Court of Session enrouted through the Illaqa Magistrate as provided under Section 190(2), Cr.P.C. On 21.05.2010, the learned Additional Sessions Judge, Sheikhupura, framed charge against the appellant, to which he pleaded not guilty and claimed trial. Prosecution in support of its version produced as many as sixteen (16) prosecution witnesses.
' Ocular account in this case has come out from the statements of Ashiq Ali complainant (PW-5), Bashiran Bibi (PW-6) and Muhammad Siddique (PW-7). Muhammad Riaz, Draftsman (PW3) had prepared scaled site plan of the place of occurrence. The test identification parade was held under the supervision of Mr.Misbah-un-Nabi, Magistrate Section-30 (PW-16). Investigation of this case was carried out by Qalib Hussain, S.I. (PW-15).
' Dr. Najma Parveen, (PW-13) had cond'icted postmortem examination upon the dead body of deceased and found following injuries on her person:-- "1. An incised wound 5 cm x 2 cm on the right side of chin bone cut.
2. An incised wound 6 cm x 3 cm on the right ear, bone cut.
3. An incised wound 4 cm x 3 cm on the right side of head lower part, bone cut 2 cm from the right ear.
4. An incised wound 4 cm x 2 cm on the right back of head; bone deep.
5. An incised wound 6 cm x 2 cm on the right shoulder.
6. An incised wound 8 cm x 4 cm on the back of neck, bone cut.
7. An incised wound 4 cm x 2 cm on the back of head bone cut.
8. An incised wound 10 cm x 8 cm left back of bone cut.
9. An incised wound 10 cm x 8 cm on the left back of neck bone cut.
10. An incised wound 6 cm x 3 cm on the outer side of left elbow joint bone cut.
' After conducting the postmortem examination, the doctor rendered the following opinion:-- "All the above mentioned injuries were ante-mortem and caused by sharp edged weapons. Injuries Nos.1 to 10 were the cause of death leading to haemorrhage shock and death. These injuries were sufficient to cause death individually as well as collectively in ordinary course of nature. Probable time between injury and death was immediate and time between death and post mortem 13 to 16 hours.
' Dr. Aman Ullah, (PW-4) had medically examined Mst. Bashiran Bibi, injured PW, and found following injuries on her person:-- "1. An entry wound of fire arm 0.7 cm x 0.7 cm with inverted margins over right side nose.
2. Multiple entry wounds of fire arm 0.7 x 0.7 cm each covering 5 x 3 cm area over right maxilla.
3. An entry wound of fire arm 0.7 cm x 0.7 cm with inverted margins over right cheek.
4. Lacerated wound of fire arm 1 x 0.5 cm skin deep over center of chin.
' Statements of rest of the prosecution witnesses are formal in nature.
6. On 16.06.2010, learned DDPP gave up Javed Iqbal 622/C, PW, being unnecessary. On 28.06.2010, learned DDPP further gave up Nazir Ahmad, PW, being unnecessary. Vide separate statement recorded on 06.07.2010; learned DDPP further gave up Suleman, Munir and Younas, PWs being unnecessary. On 10.12.2010, after tendering in evidence the reports of Chemical Examiner two in number (Exh.PU and Exh.PV) and report of Serologist two in number (Exh.PW and Exh.PX), learned DDPP closed the prosecution evidence.
7. The appellant was examined under Section 342, Cr.P.C., wherein he opted neither to appear as his own witness in terms of Section 340(2), Cr.P.C. In disproof of the allegations levelled against him in the prosecution evidence nor opted to adduce defence evidence. While replying to the question why this case against him and why the PWs deposed against him, the appellant made deposition as under:- "Present case has been illegally registered against me by the complainant maliciously on account of personal grudge and enmity nursed between complainant and me on account of demanding Rs,4500/- being the wages from the complainant, which were outstanding against the complainant. The complainant as well PWs are close relatives and on that account have falsely deposed against me. PWs were also a party to the quarrel taken place between me and the complainant. PWs have also enmity against me. That is why they have falsely deposed against me".
8. Learned trial court after evaluating the evidence available on record in light of arguments advanced from both sides, found the prosecution version proved beyond shadow of reasonable doubt resulting into conviction of the appellant in the afore stated terms.
9. Learned counsel for the appellant while opening arguments contended that the impugned judgment has been passed by the learned trial court in a slipshod manner without adverting to the facts of the case, which even otherwise is in sheer violation to the evidence available on the record.
It was submitted that the appellant had falsely been roped in the instant case by the complainant against the actual facts and circumstances with ulterior motives. It was contended that no material is available on the record to connect the appellant with the crime alleged. Learned counsel went on arguing that the whole prosecution case is based upon the evidence of a tracker which is a very weak- type of evidence and the same cannot be made basis for passing conviction. It was argued that the test identification parade was held at a belated stage. It was next argued that the parties are known to each other as they are residents of the same village. In such backdrop, it was submitted that the test identification parade carried out in this case is nullity in the eyes of law. While referring statements of Ashiq Ali (PW-5), Bashiran Bibi (PW-6) and Muhammad Siddique (PW-7) learned counsel contended that they have contradicted each other on salient features of the instant case. Learned counsel argued that these PWs are not certain even about the number of assailants, firearm used during the occurrence and subsequently they had improved their statements to bring the same in line with the subsequently cooked up prosecution story. It was argued that offence under section 460, P.P.C., is not attracted in this case. It was contended that Nazir Ahmed, brother of the complainant/eye-witness of the occurrence was given up by the prosecution and in this background adverse inference would be drawn that had he appeared before the learned trial court, he ought not to have supported the prosecution version. It was contended that the whole prosecution case is pregnant with so many lacunas and if the whole prosecution case is read conjointly, it do not imprint any impression of the prosecution story being true. In view of above facts and circumstances, learned counsel argued that the prosecution had failed in establishing its case against the appellant and as such he is entitled to his clean acquittal from this case.
10. On the other hand, learned Law Officer while controverting the assertions made by learned counsel for the appellant supported the impugned judgment passed by the learned trial court. It was argued that though the occurrence had taken place in odd hours of night, but the injuries sustained by Mst. Bashiran Bibi, injured PW, as well as the deceased reflect that they sustained injuries during the occurrence. It was submitted that though the appellant as well as the complainant party is resident of the same village, but it is a large village, therefore, the possibility that the appellant might have not been known to the womenfolk cannot be ruled out. Learned Law Officer submits that initiation of proceedings against the appellant on the basis of tracker's information was sufficient and during the course of test identification parade he was rightly identified by the PWs. Added that the appellant was found guilty during the course of investigation as such his name was placed in column No,3 of the report prepared in terms of section 173, Cr.P.C. It was lastly argued that as the prosecution proved its case to the hilt against the appellant therefore, the learned trial court was well justified in inflicting capital sentence against the appellant.
11. We have heard the arguments advanced from both sides and perused the record with the able assistance of learned counsel for the appellant as well as learned Law Officer.
12. Admittedly as per contents of the crime report, the occurrence in the instant case had taken place in between the night of 20/21.03.2009 at 1:00 a.m. (night). The FIR was lodged by the complainant against unknown accused persons. There is no denial to this fact that during the occurrence the wife of the complainant namely Mst. Hanifan Bibi lost her life whereas the bhabhi of the complainant namely Mst. Sharifan Bibi sustained injuries, but the fact remains that neither the number of the assailants had been given in the crime report by the complainant nor any specific A weapon of offence allegedly used during the occurrence had been mentioned. So much so, the complainant had not mentioned any source of light in the crime report despite the fact that as per prosecution own claim the occurrence had taken place during odd hours of night. It is worth mentioning here that the appellant was implicated in this case on the basis of information given by Muhammad Ilyas, tracker (PW-9) which admittedly is a very weak type of evidence A and is not sufficient to pass conviction. As per prosecution own version, on the hue and cry raised by the complainant party, a number of people of the village gathered at the spot. It is an admitted fact that both the parties are residents of the same village. In such backdrop, a question arises that how it is possible that neither any prosecution witness nor the co-villagers of the complainant party had seen the accused while running from the spot and the FIR was lodged by the complainant against unknown accused persons and the appellant was dubbed as an accused in this case on the basis of information of the tracker. In the crime report, no features/descriptions of the body structure of the unknown accused have been mentioned by the complainant and as such the test identification parade loses its authenticity and had no value in the eyes of law.
Reliance in this regard is placed upon the dictum of law laid down by the august Supreme Court of Pakistan in the case titled "Muhammad Afzal alias Abdullah and others v. The State and others"
(2009 SCM R 436), wherein it has been held as under:-- "---Effect---Absence of such details in FIR militated against bona fides of prosecution and greatly marred evidentiary value of test identification parade---When description by appearance of accused was not given in FIR and specific role was not attributed to him, identification of such accused in court for the first time, in absence of strong corroboratory evidence was not safe to be relied upon as by passage of time memory would fade and possibility that accused might not have been mistakenly picked out was augmented---"
' Similar view was affirmed by the august Supreme Court of Pakistan in the case titled "Sabir All alias Fauji v. The Stale" (2011 SCM R 563).
13. Another important aspect of this case is that that Dr. Najma Parveen (PW-13) who conducted postmortem examination upon the dead body of the deceased Mst. Hanifan Bibi had mentioned the time between the death and postmortem as 13 to 16 hours. In such like situation, the august Supreme Court of Pakistan has evaluated the prosecution evidence with suspicion and in two recent judgments has taken serious note of delayed postmortem examination while extending the benefit of doubt on this score alone person at 4 a.m. But conducted post-mortem examination of deceased at 3:00 p.m. i,e, after about ten hours, such facts showed that FIR was not lodged at the given time---".
14. It is worth mentioning here that Nazir Ahmad, brother of the complainant, who is the eye-witness of the occurrence was given up by the prosecution. In this background adverse inference would be drawn that had he appeared before the learned trial court, he ought not to have supported the prosecution version and prosecution case is squarely hit by the Article 129(g) of Qanun-e- Shahadat Order, 1984, as is held by august Supreme Court of Pakistan in the case of Lal Khan v. The State (2006 SCM R 1846) in the following terms:-- ' In they case of Irshad Ahmed v. The State (2011 SCM R 1190), the august Supreme Court of Pakistan has observed as under:-- "----S. 302--- Qatl-i-amd--- Postmortem examination---Delay---In Postmortem examination is generally suggestive of a real possibility that time was consumed by police in procuring and planting eye-witnesses and in cooking up a story for prosecution before preparing police papers for getting a post mortem examination of dead body conducted".
' In the case titled Khalid alias Khalidi and 2 others v. The State (2012 SCM R 327), it has been held as under:-- "--Incident took place at 2.00 a.m. FIR was recorded at 4/5 a.m., doctor medically examined injured "---Art.129(g)---Criminal trial--- Withholding natural witness--- Presumption---Act of withholding of most natural and a material witness of occurrence would create an impression that had such witness been brought into witness-box, he might not have supported the prosecution--- Prosecution, in such eventuality must not be in a position to avoid the consequence".
15. As far as recovery in this case is concerned, it is worth mentioning here that as per prosecution own version, one accused had caused dagger blow to the deceased whereas the second accused had made fire shot to the deceased, but no crime empty was taken into possession by the Investigating Officer from the spot. Moreover, the Investigating Officer had recovered both the dagger as well as the carbine from the appellant, which fact itself creates doubts qua the recovery from the appellant. The other accused remained unknown during the course of investigation. Such circumstances make the prosecution case highly doubtful.
In the instant case after examining the prosecution case from all corners and evaluating it on the touchstone of interpretation of dictum of "safe administration of criminal justice" this Court has arrived at the conclusion That in this case the prosecution has miserably failed to establish its case against the appellant beyond a reasonable doubt.
16. Moreover, it is established principle of law that for extending the benefit of doubt in favour of the accused, so many circumstances are not required, rather one circumstance which creates reasonable doubt in the veracity of the prosecution version, can be taken into consideration for the purpose, not as a matter of grace, rather as a matter of right. Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the cases of "Tariq Pervez v.
The State" (1995 SCM R 1345), "Riaz Masih alias Mithoo v. The State" (1995 SCM R 1730) and "Muhammad Akram v. The State" (2009 SCM R 230). In the case of "Tariq Pervez v. The State" (1995 SCM R 1345), the august Supreme Court of Pakistan has held as under:-- "---Art.4---Benefit of doubt, grant of---Forgiving benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubts---If a simple circumstance creates reasonable doubt in a prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right".
17. From the facts and circumstances narrated above, we are persuaded to hold that prosecution has badly failed to substantiate its case against the appellant to the hilt and the learned trial court was not justified in convicting him while basing upon such untrustworthy/uncorroborated evidence, which even otherwise is full of material contradictions, and conviction passed by the learned trial Court in the circumstances is against all canons of law recognized for the dispensation of criminal justice. As per dictates of law benefit of every doubt is to be extended in favour of the accused. Moreover, it is golden principle of law that the Court may err in letting off 100 guilty but should not convict one innocent person on the basis of suspicion. Resultantly while setting aside the conviction and sentence recorded by the learned trial court in terms of judgment dated 01.02.2011, Crl. Appeal No,226/2011 filed by Muhammad Ramzan/appellant is ACCEPTED IN TOTO. Consequently he is ordered to be acquitted of the charge in this case. He be released forthwith if not retired in any other case.
' Murder Reference No,84/2011 forwarded by the learned trial court for confirmation of sentence of death inflicted upon Muhammad Ramzan/ convict fails, which is answered in NEGATIVE. Death sentence is NOT CONFIRMED.