MUJAHID MUSTAQEEM AHMED, J.:- Qasim Ali, Zulfiqar son of Khan Muhammad and Talib Hussain, appellants alongwith Amir and Zulfiqar Ali son of Gulzar, co-accused were tried by the learned Sessions Judge, Faisalabad in case F.I.R. No. 256 dated 14.3.2007 under Sections 302/394/34 P.P.C. registered at Police Station Chak Jhumra, Dist. Faisalabad. At the conclusion of trial, the learned trial Court vide judgment dated 21.12.2011 convicted the appellants under Sections 302(b)/34 P.P.C. and awarded Death penalty to Qasim Ali and Zulfiqar son of Khan Muhammad, appellants while Talib Hussain, appellant was sentenced to suffer imprisonment for life. All the three appellants were also directed to pay compensation of Rs.2,00,000/- each to legal heirs of the deceased or in default thereof to undergo six months S.I. each under Section 544-A Cr.P.C. The appellants were also convicted under Section 392/34 P.P.C. and each one of them was sentenced to suffer ten years R.I. with a fine of Rs.1,00,000/- or in default thereof to further undergo six months S.I. each. Zulfiqar son of Gulzar and Amir Ali alias Ehsan co-accused were, however , acquitted.
2. Feeling aggrieved of the above noted conviction and sentences, Zulfiqar son of Khan Muhammad, appellant has approached this Court by way of Cr. Appeal No. 24-J of 2012, whereas Qasim Ali and Talib Hussain, appellants have filed Cr. Appeal No. 25-J of 2012. The learned trial court has also submitte d Murder Reference No. 198 of 2012 in terms of Section 374 Cr.P.C. seeking confirmation of sentences of death imposed on Qasim Ali and Zulfiqar son of Khan Muhammad, convicts. Durin g pendency of these matters, as pointed out, Talib Hussain, one of the appellants in Cr. Appeal No. 25-J of 2012 has been murdered, therefore, a report was sought by this Court in this regard which has been received from the S.H.O. of Police Station Langrana, Distt. Chiniot verifying the factum of his murder . This being the position, Cr. Appeal No. 25-J of 2012 to the extent of Talib Hussain, appellant abates under Section 431 Cr.P.C. With regard to rest of the appellants, these matters being interconnected are hereby decided together through this single judgment.
3. Occurrence in the present case took place on 13.3.2007 at 8.45 p.m. in front of tea-shop installed at Jumra Road within the vicinity of Chak No. 191/R.B. of Police Station Chak Jhumra in which Zahoor Ahmad, a brother of Muhammad Yar, complainant (PW.12) sustained injuries at the hands of mischief mongers and was taken to Allied Hospital, Faisalabad where he was admit ted and the doctor observed three (two firearm and a blunt) injuries on his person. After obtaining M.L.R. Muhammad Yar, complainant reported the matter to police on 14.3.2007 at 7.20 p.m. by submitting complaint (Ex. PD) on the basis of which F.I.R. (Ex.PD/1) was registered at the police station under Section 324/34 P.P.C. Zahoor Ahmad, succumbed to the injuries on 15.3.2007 and offence under Section 324 P.P.C. was substituted with the provisions of Sections 302/394/34 P.P.C. read with Section 13 of the Arms Ordinance, 1965.
4. Narrating the facts in the statement (Ex.PD) the complainant stated that his brother Zahoor Ahmad had established a tea-shop at main road of Chak Jumra adjacent the outer wall of Friends Fabrica Weaving Factory where he alongwith Muhammad Nawaz (given up) went to see his said brother at 8.45 p.m. on 13.3.2007. It was alleged that at about 8.45 p.m. a car (registration number or other particulars not given) stopped near the tea- shop and three unknown persons of youth age, two armed with .30 bore pistols and the third one having 12 bore gun, alighted from it. They declared that they had come to settle score with Zahoor Ahmad for creating hindrance in their (nefarious) activities and ordered him to hand over whatever he had with him. The story further proceeds that on resistance by Zahoor Ahmad, the assailants armed with pistols fired single shot each hitting Zahoor Ahmad on left side of his chest and lower left side of abdomen. On receiving injuries Zahoor Ahmad fell down upon which the third one holding gun gave a butt blow hitting on his left buttock. The complainant claimed that due to fear of life he and other P.Ws. did not step forward as they had been threatened by the assailants not to come nearer. After the occurrence the marauders went towards Faisalabad in their car. The injured was taken to Allied Hospital, Faisalabad by the complainant and P.Ws. where he was admitted and given medical treatment.
5. On 13.3.2007 Dr. Ghulam Qadir, PW.3 medically examined Zahoor Ahmad, injured and found the following injuries:
1. A firearm wound of entry 3 x 2 cm x depth not probed on front of left lower chest. Omentum was protruding out from the wound. Area of blackening was present around the wound. Corresponding holes and blackening present on clothes.
2. A firearm wound of entry % cm x % cm x DNP on front of left mid abdomen over left mid clavicle line about 12 cm left lateral to umbilicus with blackening and collar of abrasion present around the wound. Corresponding holes and blackening present on clothes.
3. A lacerated wound 1 cm x 1 cm x D N P on left buttock.
Zahoor Ahmad, while admitted in the hospital, died of the injuries on 15.3.2007 and Dr. Liaqat Ali, PW.9 on same day performed autopsy on the dead body and found as many as 9 injuries out of which injuries No. 1 to 3 were as under:
1. A firearm entry wound 5 cm x 1 3/4 cm by margins black with one stich in, on inner side of the bone, on front of left chest 6 cm below left nipple.
2. A firearm entry wound 3 cm x 2 cm with black margins alongwith two loose stitches, at left sub costal region middle part.
3. A lacerated wound 1 cm x 1 cm by skin deep on back and outer side of left buttock upper part.
(Rest of injuries were surgical wounds, hence need not to reproduce here.)
All the injuries were ante mortem. Injuries No.1 and 2 were caused by firearm weapon while injury No. 3 was caused by blunt means. Probable time that elapsed between injuries and death was within 24 to 36 hours and between death and post mortem was within 8 to 12 hours. The doctor opined that death had occurred due to cardio pulmonary arrest due to haemorrhage and shock caused by injuries No. 1 and 2 which were sufficient to cause death in ordinary course of nature.
6. Muhammad Akram, Sub-Inspector had initially carried out investigation of this case. He, however, expired before commencement of trial of this case and at trial investigation conducted by him was proved by Liaqat Ali, Sub Inspector (PW.16) who had been working with him. The record depicts that after registration of case Muhammad Akram, S.I./investigator visited the spot, prepared rough site plan and collected blood stained earth from the place of occurrence vide memo Ex.PB. The complainant also produced before him articles which the deceased had snatched from the accused during grappling at the time of occurrence comprising .30 bore pistol, an empty of .30 bore, shirt, jacket and slippers (P7, P8,P9 and P10/1-2) which he took into possession vide memo Ex.PT. He had also inspected the dead body and prepared injuries statement and inquest report Exs.PK & PL respectively. On 21.6.2007 he apprehended Qasim Ali, appellant under Section 54 Cr.P.C. and lodged him in jail for the purposes of identification parade which was conducted in jail premises on 7.7.2007 under the supervision of Mr. Muhammad Kazim, Awan, learned Special Judicial Magistrate (PW.10).
He also recovered a .30 bore pistol (P.13) with three live bullets (P.14/1-3) at the instance of Qasim Ali, appellant which he took into possession vide recovery memo Ex.P.W.
The investigation was also partially conducted by Ghulam Sarwar, Sub-Inspector PW.15. On 3.5.2008 he arrested Zulfiqar, appellant from court premises and sent him to judicial lock up for identification parade. On 8.5.2008 identification parade of Zulfiqar appellant was conducted in jail under the supervision of P.W.10.
7. After completion of investigation, the appellants alongwith their co-accused were challaned to Court to face trial.
8. At commencement of the trial, charge was framed against the accused persons to which they denied and claimed trial. In order to prove charge against the accused persons, the prosecution produced as many as 16 PWs. out of which medical evidence was provided by PWs. 3 and 9; ocular account was provided by PWs. 12 & 13 whereas the investigation was proved by PWs. 15 and 16. Proceedings of identification parade with regard to the appellants were proved by PW.10. At the close of prosecution evidence the appellants were examined under Section 342 Cr.P.C. They denied and dismissed each piece of prosecution evidence and claimed innocence being involved falsely by the police in connivance with the complainant. They however, neither entered the witness box under Section 340(2) Cr.P.C. nor produced evidence in defence. At the conclusion of trial, learned trial Court convicted and sentenced the appellants as noted above.
9. By opening his arguments, learned counsel for the appellants contends that there is delay of more than 23 hours in lodging the F.I.R. for which no reasona ble explanation has been given by the complainant. He next argues that presence of eye witnesses at the spot is unnatural one and they were chance witnesses as such they cannot be relied upon to record conviction and punishment in a case on capital charge without corroboration from independent source which is lacking in the present case. Further argues that present occurrence having been committed at night by unknown persons whose features and contour had not been mentioned in the F.I.R. great caution had to be exercised while connecting the appellants with an offence entailing capital punishment but the evidence provided by the prosecution in this respect is very poor and against the actuality which was not confidence inspiring. Learned counsel also contends that there are material contradictions between the statements of the eye witnesses. Learned counsel maintains that the complainant made dishonest improvements at trial and tried to bridge up the flaws by making such improvements. He stated in the F.I.R. that he alongwith Muhammad Nawaz P.W. was present at the place of occurrence at the relevant time but later on introduced one Muhammad Riaz PW. 13 to have also witnessed the occurrence but there is no plausible explanation as to why his name was not incorporated in the F.I.R. Further submits that in the F.I.R. the complainant did not mention that certain articles of the accused were left at the spot while grappling with the deceased and such improvements were sufficient to discard the oral testimony of the witness being not credible and all these things reflect that it was an unwitnessed night time occurrence and presence of the complainant and the eye-witness was manoeuvred. He also argues that the identification parade qua both the appellants is sham, fake and not in accordance with law. It is further added that recovery of .30 bore pistol at the instance of Qasim Ali, appellant is inconsequential as the crime empty produced by the complainant allegedly collected from the spot had already matched with the .30 bore pistol taken into possession from the spot by the complainant and later on handed over to the investigator and finally that the prosecution has miserably failed to prove its case and the appellants deserve to be acquitted.
10. Conversely, learned Law Officer assisted by learned counsel for the complainant defended the impugned conviction and sentences by arguing that presence of the complainant and the witnesses at the spot was fully established inasmuch as soon after the occurrence the complainant himself alongwith the eye witnesses took the deceased to the hospital in injured condition. Learned Law Officer further contends that the appellants were not previously known to the complainant party and there was no previous enmity or animosity between the parties to falsely implicate the appellants leaving behind real culprits. Learned counsel further contends that the complainant had stated in the F.I.R. that he alongwith Muhammad Nawaz, P.W. had visited the tea-shop of the deceased. He had never claimed that Muhammad Riaz, P.W. had also accompanied them to the said shop rather it was case of the prosecution that occurrence was also witnessed by Muha mmad Riaz PW. who happened to pass by the place of occurrence at the relevant time and in any case even producing Muhammad Riaz, P.W. at trial and leaving Muhammad Nawaz, P.W. makes no difference as both of them had seen the occurrence and in any case he had got recorded supplementary statement on the same day in which he stated that Riaz had also seen the occurrence. Learned Law Officer heavily relied on identification parades conducted in this case by saying that two identification parades on different dates were conducted and the supervisory officer/Magistrate fully observed legal formalities and the appellants were correctly identified by the witnesses with their specific roles as such it was a fool proof case and the prosecution has fully proved the case against the appellants. Learned counsel submits that the appellants had committe d brutal murder of an innocent person as such they do not deserve any leniency even in the matter of sentence.
11. Learned counsel for the parties have been heard at length and record gone through with their assistance.
12. The prosecution case mainly rests upon ocular account provided by Muhammad Yar, complainant and Muhammad Riaz, PWs. 12 and 13 who are real brother and cousin of the deceased respectively and the identification parade proved by Mr. Muhammad Kazim Awan, Magistrate coupled with recoveries of weapon of offence at the instance of Qasim Ali, appellant.
13. The complainant entered the witness box as P.W. 12 and deposed in the line of version narrated in the F.I.R.
However, he made certain improvements which would be taken care of in the later part of this judgment. The complainant deposed at trial that on the fateful date and time he alongwith Muhammad Nawaz, (given up) was present at the tea-shop of the deceased when a car came from Jumra-Faisalabad Road and stopped in front of tea-shop of the deceased. Qasim Ali and Zulfiqar, appellants both armed with .30 bore pistols and Talib Hussain (appellant since murdered) armed with 12 bore gun alighted from the car and raised lalkara to the deceased to teach him a lesson for creating hindrance in their activities. Thereafter, Zahoor Ahmad resisted when Qasim, appellant fired with his pistol hitting Zahoor on left side of his chest. Then Zulfiqar, appellant fired shot with his pistol which landed on left lower part of his abdomen. Zahoor Ahmad caught hold of both the said accused as a result of which shirt of one accused and jacket of other were removed. Slippers of an accused were also left at the spot. Talib Hussain accused inflicted butt blow of his gun at Zahoor Ahmad which hit his left buttock. The accused persons threatened that if anybody came near he would face the same consequences. He, Muhammad Riaz and Muhammad Nawaz, PWs. saw the occurrence in the light of electric bulb. The accused made good their escape while sitting in the car. He further deposed that he got recorded supplementary statement before the investigating officer on 14.3.2007 that Riaz son of Sarang had also witnessed the occurrence. He claimed that he handed over pistol 30 bore, one crime empty of 30 bore, one shirt of accused, one jacket of accused and pair of "chappal" to the investigating officer. He also deposed that he alongwith other eye witnesses joined identification parade and identified the accused/appellants with their respective roles.
14. The prosecution gave up Muhammad Nawaz and instead produced Muhamm ad Riaz at trial as P.W. 13 who tried to depose in line with the version of the complainant.
15. Since main crux of arguments of learned counsel for the appellants was that it was a night time occurrence which had not been seen by any one and the eye-witnesses had been later on manoeuvred, we examine and analyse the evidence in the light of arguments made by learned counsel for the parties.
16. In order to justify his presence at the place of occurrence, the complainant claimed that he alongwith Muhammad Nawaz had visited at the shop to see Zahoor Ahmad. He, however , could not state any specific purpose for visiting Zahoor Ahmad at such time of night. Although no hard and fast rule can be framed about human behaviour but in the normal course of events it does not appeal to mind that the complainant and Muhammad Nawaz, P.W. would visit the shop of Zahoor Ahmad at such night time without any specific purpose in spite of the fact that he might be available to the complainant and the P.Ws. after/within one hour or so at his residence in the village.
17. In the F.I.R. the complainant stated that he alongwith Muhammad Nawaz, had witnessed the occurrence.
However , at trial he claimed that he alongwith Muhammad Nawaz and Muhammad Riaz PWs had witnessed the occurrence. The complainant did not divulge as to why he could not mention the name of said Muhammad Riaz in Ex.PD as also having witnessed the occurrence. The argument of learned Law Officer that immediately after lodging the F.I.R. the complainant had made a supplementary statement through which he disclosed that said Riaz had also witnessed the occurrence, cannot be lightly accepted for two reasons. Firstly , we have noticed that the occurrence took place at 8.45 p.m. on 13.3.2007 whereas the complainant made statement (Ex.PD) after 23 hours i.e. at 7.20 p.m. on 14.3.2007 and it is available on record that by that time Zahoor Ahmad was not only alive but had gained consciousness. This being the position it cannot be said that the complainant was so upset that he forgot to mention the name of Riaz P.W. being an eye witness. Secondly , we have observed that inquest report Ex.PL was prepared by the investigator on 15.3.2007 narrating brief facts of the case and in that report too, name of Riaz was not mentioned as eye-witness meaning thereby that Muhammad Riaz was introduced as eye-witness at much belated stage.
There is also another aspect of the case. The investigator took into possession articles left by accused persons at spot produced by the complainant, vide recovery memo Ex.P.T. on 14.3.2007 which seems to have been signed by Riaz as witness but a careful comparison of his signatures on said document would show that they do not match with his signatures on rest of documents, meaning thereby that his presence was fabricated in this regard.
18. In the F.I.R. the complainant did not claim that the deceased had caught two of the accused or grappled with them. He rather only stated that the deceased resisted whereupon Qasim Ali fired with his pistol hitting on left side of his chest followed by another shot fired by Zulfiqar which landed on lower part of abdomen of the deceased.
However , at trial he improved his version by deposing that after receiving fire shots the deceased in injured condition caught hold of two accused and during grappling shirt of one accused was removed, whereas jacket of the other one was taken off and that the assailants ran away from the spot in the car even leaving behind slippers (shoes) of one of them, which articles he handed over to the investigating officer. We have noticed that the complainant had not even remotely mentioned in the F.I.R. that the deceased had caught hold of two of the accused or that during grappling certain articles of the accused persons including a pistol had dropped. Even at trial he did not claim that pistol of any accused had also dropped during grappling. Anyhow , it is strange that the complainant did not hand over the said articles to the police on their first arrival in hospital and not only kept the same with him for more than 23 hours rather did not bother to mention the same in his statement (Ex.PD.). This is a strong circumstance to shake credibility of the complainant and speaks volume about the testimony made by the complainant.
19. Even at the time of identification parade, none of the witnesses specifically stated about the accused from whom pistol was dropped, the shirt and the jacket were removed or who had left the slippers at the spot. This omission on the part of the witnesses is a strong circumstance to hold that even the recovery of pistol, shirt, jacket and slippers were nothing but a sham attempt to fabricate evidence to strengthen the prosecution case.
20. Although the complainant had claimed that he remained busy in medication of the injured and could not get the case registered but at the same time he admitted during his cross-examination that police had arrived at the hospital but he did not try to lodge a crime report. This indifferent and unusual conduct of the complainant creates serious doubt and dent in his version.
21. There is another important aspect of this case which created doubt in our minds regarding presence of these witnesses at the spot. If it be presumed for the sake of arguments that Muhammad Riaz P.W. was also present at the spot, the total number of persons from complainant party would be four. The assailants were three in number.
As per claim of the complainant two of the assailants had been caught hold of by the deceased. It does not appeal to mind that the eye-witnesses who were real brother and real cousin of the deceased would remain standing as silent spectators and would not step forward to help him or to raise hue and cry attracting people of the vicinity or even when occurrence was over, would not report to 1122 or Rescue 15.
22. In the F.I.R. the complainant did not describe any source of light in spite of the fact that it was a night time occurrence. However, at trial he deposed that PWs had witnessed the occurrence in the light of electric bulb installed at the shop. The investigating officer has not secured any such bulb during spot inspection.
23. There is yet another strange circumstance in this case. The complainant claimed in the F.I.R. and even deposed at trial that the assailants on their arrival raised lalkara in the following terms: This shows that the deceased and the assailants were previously known to each other and even the deceased used to proscribe them from doing nefarious activities. During cross-examination, the complainant disclosed that the deceased remained conscious for many hours in the hospital while in injured condition but he has not disclosed the names of real culprits, meaning thereby that the injured also could not identify the perpetrators of of fence.
24. Allegedly an empty of .30 bore was recovered from the spot which had been handed over by the complainant to the investigating officer but at the same time a .30 bore pistol was also handed over to the investigator and as per report of the Forensic Science Laboratory the crime empty had matched with the pistol. But one cannot loose sight of the fact that both the crime empty and the pistol were sent together to the laboratory for analysis as such positive report of the F.S.L. loose its intrinsic value particularly when till date, prosecution could not pin point that which of the appellants was armed with this pistol at the scene of occurrence. A pistol was allegedly recovered at the instance of Qasim Ali, appellant but since it had not matched with crime empty recovered from the spot, as such it cannot be connected with the commission of crime.
25. It was claim of the prosecution that the appellants had been correctly identified by the witnesses with their specific roles. But we have observed that identification parade was not got conducted immediately on the arrest of the appellants. Identification tests of Qasim Ali and Zulfiqar, appellants were held approximately four months and one year and five months respectively after the occurrence. It is not readily believable that the PWs. who have seen fleeting glimpses of appellants, would remember their features for such long period particularly when their features and contours have not been mentioned in the F.I.R or in their statements recorded under Section 161 Cr.P.C. Reliance in this regard may be placed on Lal Pasand v. The State (1971 SCMR 569). In the case titled Ghulam Hussain and others v. The State (2005 YLR 405) it has been laid down that while evaluating identification parade it should be kept in mind that memories fade and visions get blurred with passage of time. Thus, an identification test, where an unexplained and unreasonably long period has intervened between the occurrence and the proceedings should be viewed with suspicion. Therefore, an identification parade, to inspire confidence must be held at the earliest possible opportunity after the occurrence and further that a test identification, where the possibility of the witness having seen the accused persons after arrest cannot be ruled out, is worth nothing at all. In the case titled Muhammad Yaqoob and another v. The State (1989 PCrLJ 2227) (Lahore) it has been held that evidence offered through identification parade is not a substantive piece of evidence but is only corroborative of the evidence given by the eye witnesses at trial. It has come on record that the appellants were kept in police station and that the witnesses had been visiting the police station during investigation. Possibility that police had got accused identified by witnesses prior to identification parade could not be ruled out.
26. The above microscopic analysis of the evidence produced by the parties would lead us to sum up that it was a night time unseen occurrence. Presence of the witnesses at the place of occurrence was not natural and during trial their presence could not be established beyond shadow of doubt. The F.I.R. was lodged with a delay of 23 hours for which no plausible explanation was given. In the F.I.R. besides the complainant, Muhammad Nawaz was also cited as eye-witness, but later on one Muhammad Riaz was introduced as eye-witness for which no reasonable explanation has been given. In the F.I.R. it was not mentioned that during scuffle of the appellants with the deceased, their certain articles were left at the spot but at trial it was so claimed. The particulars of the car have also not been given in the F.I.R. or statements of witnesses. Thus the complainant made dishonest and flagrant improvements regarding the actual incident to bridge up flaws in prosecution case to furnish more probable story, such improvements reflected adverse to the prosecution case and rendered the ocular account doubtful and unreliable. Although a pistol was allegedly recovered at the instance of Qasim Ali, appellant but the same was inconsequential because it could not be connected with the commission of crime and that identity of the appellants during identification parade was not free from doubt.
27. 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 a matter of right and not of grace. It has been observed by the Hon'ble Supreme Court in more than one judgments that for giving the benefit of doubt, it was not necessa ry that there should be many circumstances creating doubts. If there is single 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.
Guideline in this regard may be sought from the dictum laid down by the Apex Court in Tariq Pervez v. The State (1995 SCMR 1345 ) and Muhammad Akram v . The State (2009 SCMR 230 ).
28. In view of what has been noticed and discussed above, Cr. Appeals No. 24-J of 2012 and 25-J of 2012 are accepted, conviction and sentences of Zulfiqar and Qasim Ali, appellants recorded by the learned trial Court are set aside and they are acquitted of the charges. They shall be set at liberty forthwith if not required to be detained in any other case.
29. Talib Hussain, (appellant since murdered) who was granted bail by this Court vide order dated 24.9.2014, has since expired and his appeal has abated, as such his surety stands discharged of his liability .
30. Since Zulfiqar and Qasim Ali, convicts have been acquitted of the charge, therefore, there is no question of confirmation of their sentences of death. Murder Reference No. 198 of 2012 is, therefore, answered in negative.
Sentences of death are not confirmed .