Mehmood Maqbool Bajwa, J.--By this judgment, we intend to dispose of Murder Reference No. 399 of 2006, Criminal Appeal No. 957 of 2006 titled "Hag Nawaz v. Muhammad Ali etc.'', Criminal Appeal No. 1128 of 2007 titled "Pervaiz Ahmed u. Muhammad Ali etc:" Petition for Special Leave to Appeal No. 101 of 2006 titled 'Muhammad Ali v. Muharnmad Mukhtar etc." and Criminal Revision No. 708 of 2006 titled "Muhammad Ali v. Pervaiz Ahmad etc," arising out of one and the same judgment dated 31.05.2006.
2. Crime Report Bearing No. 555 of 2004 was registered on the statement of Muhammad Ali (PW-1) against Muhammad Hayat (since P.O.), Haq Nawaz, Muhammad Mumtaz and one unknown person (Pervaiz) with the allegation that on 23.12.2004, he alongwith Muhammad Nawaz (deceased), Muhammad Afzal (PW-2), Muhammad. Hayat (since given up) came to Tehsil office Kot Momin to attend the Court. At about 10:15 a.m. they went to nearby public call office to make call when Muhammad Hayat and Haq Nawaz both armed with .12 bore gun, Muhammad Mumtaz armed with .30 bore pistol and unknown person came there on motorcycle. Muhammad Hayat and Haq Nawaz with their respective arms made fire aiming at Muhammad Nawaz landed on his back.
Muhammad Mumtaz was raising lalkara while unknown accused (Pervez Ahmad) remained nearby the motorcycle in a position to facilitate his associates. Muhammad Nawaz succumbed to the injuries at the spot.
Being unsatisfied with the mode and result of investigation, the complainant filed complaint against all the above-named persons. Attributing motive in the FIR as well as in the complaint, it was stated that Mst. Fatima, paternal aunt of accused/assailants married with Muhammad Navvaz (deceased), inherited, 4 acres holding who mutated the same in favour of deceased and suit for ejectment was filed by the deceased against them resulting in occurrence.
After conclusion of trial in private complaint, vide impugned judgment, Haq Nawaz and Pervez Ahmad were convicted under Section 302 (b) read with Section 34 of the Pakistan Penal Code, 1860, and were awarded death sentence and life imprisonment respectively. Muhammad Hayat, accused was since proclaimed offender, therefore, non-bailable warrant of arrest was issued in his name. Mumtaz, Fateh Muhammad-and Muhammad Ali were acquitted while extending benefit of doubt.
3. Haq Nawaz and Pervez Ahmad (convicts) by preferring appeals have assailed their conviction and sentence. The complainant while filing criminal revision has prayed for conversion of sentence of life imprisonment awarded to Pervez into death. The complainant has also questioned the legality and validity of judgment by filing PSLA regarding the acquittal of Muhammad Mumtaz, Muhammad Ali and Fateh Muhammad.
4. Dr. Amjad Iqbal (PW-6) conducted autopsy on the dead body and noted following injuries:--
1. Nine (9) wounds of entry going in with inverted margins 3/4 x 3/4 cm each with a circular abraded area 2x2 cm in the center due to strike of wad on the back of right chest lower part.
Blackening and burning was present on the margins. Entries were scattered in area of 7 x 6 cm.
2. Nine (9) wounds of entry going in with inverted margins 3/4 x 3/4 cm each with a circular abraded area 2x2 cm in the center due to strike of wad on the grooves over the vertibrel column (on midline) 3 cm medial to Injury No. 1 on the same level. Blackening and burning was present on the margins.
3. Six (6) wounds of exit 3/4 x 3/4 cm each with everted margins scattered in area of 11 x 8 cm on front of right chest on the area between right bodder sternum and nipple".
In his opinion both the injuries (Injuries No. 1 and 2) were collectively sufficient to cause death caused with fire-arm and were ante-mortem. Ex. PJ is the copy of post-mortem report while pictorial diagram is Ex.PJ/1.
5. The complainant appeared as PW-1 and produced Muhammad Afzai (PW-2), Nazar Muhammad (PW-3), Khizar Hayat (PW-4), Muhammad Aslam (PW-5). Mazhar Hussain, SI (I.0.), Muhammad Sher-constable, Muhammad Ameer-constable appeared as CW-1 to CW-3.
Reports of chemical Examiner and Serologist (Ex. PH & Ex. PK) were produced besides production of attested copy of complaint (Ex. PL).
6. The convicts and acquitted accused in their respective statements recorded under Section 342 of The Code of Criminal Procedure, 1898, denied the whole incriminating material put to them pleading false implication. Further stated that there was exchange of abusive language between Hayat (since P.O.) and deceased due to institution of suit and deceased fired at Muhammad Hayat who also fired back on the deceased in self-defence.
7. Heard.
The learned counsel for the appellant (Pervaiz Ahmad) maintained that no overt act was attributed to the appellant who as per prosecution/complainant's version was present at the spot near the motorcycle. Submitted that evidence of eye-witnesses does not inspire confidence and is full of glaring and material contradictions casting serious doubt about the veracity of a prosecution version. Argued that appellant was also not nominated in the FIR.
The learned counsel for Haq Nawaz appellant, while adopting the argument canvassed at the instance of Pervaiz Ahmad appellant further maintained that Haq Nawaz was falsely implicated in the case who was "child" but same aspect was not taken into consideration by learned trial Court.
Further submitted that nothing was recovered from the appellant. Making reference to the evidence of Muhammad Ali, complainant (PW-1), Dr. Amjad lqbal (PW-6) and referring to the locale of injuries and defence taken regarding cross-firing between deceased and Muhammad Hayat (P.O.) it was argued that stance of defence stands established but the learned trial Court ignored this aspect.
Replying the arguments, the learned counsel for the complainant maintained that Haq Nawaz is nominated in promptly lodged FIR with specific role of causing injuries to the deceased, proved fatal finding support from medical evidence and as such no exception can be taken to the conviction and sentence awarded to him.
Arguing the revision petition for enhancement of sentence to Pervaiz Ahmad (appellant), it was submitted that since guilt was proved beyond reasonable doubt against said convict who facilitated the commission of offence, sharing common intention and as such there were no mitigating circumstances to award him lesser punishment.
Assailing the acquittal of Muhammad Mumtaz, Muhammad Ali and Fateh Muhammad it was submitted that Muhammad Munitaz by raising proverbial lalkara instigated his associates resulting in commission of crime and as such was guilty and the reasons given by learned trial Court while recording acquittal are neither justified nor sanctioned by law. Taking the case of Muhammad Ali and Fateh Muhammad, it was argued that they both made conspiracy for the murder of deceased which fact was duly proved by Nazar Muhammad (PW-3) and Khizar Hayat (PW-4).
Controverting the arguments the learned counsel for the acquitted persons while questioning the credibility of witnesses (PW-3 & PW-4) maintained that said witnesses are close relative of complainant and deceased making conscious attempt to implicate them falsely. Further submitted that evidence of witnesses (PW-1 to PW-4) does not appeal to the reason and is result of concoction.
8. Pervaiz Ahmad (appellant) was not nominated in the FIR. Though complainant, Muhammad Ali (PW-1) named him as an accused in his direct statement but admittedly his name does not find mentioned in the FIR (Ex. PA) with which he was confronted in cross-examination. The appellant was implicated through supplementary statement which is neither admissible in evidence nor there is any enabling and permissive provision of law in the Code of Criminal Procedure about the supplementary statement. At the most, it can be equated as a statement under Section 161 of The Code of Criminal Procedure, 1898. Reference may be made to "Falak Sher a Sheru v. The State"
(1995 SCMR 1350), "Nadeem-ul-Haq Khan and others v. The State" (1985 SCMR 510), 'Akhtar Ali and others v. The State' (2008 SCMR 6) and 'Anees-urRehman and another v. The State" (PLD 2002 Lahore 110).
Though it can be argued that Muhammad Afzal (PW-2) in his statement implicated the appellant who also named him in his statement recorded during investigation which factual position though may not be questioned but implication of appellant by name by this witness on 23.12.2004 does not appeal to the prudence for the simple reason that complainant is not implicating him by name in the FIR. Muhammad Afzal (PW-2) is not only the relative of complainant and deceased but also as per complainant's stance was present at the time of occurrence. If the name and other particulars of appellant were known to this witness, why same were not disclosed to complainant., Since Pervaiz, appellant was not named in the FIR, therefore, holding of identification test was essential as held in "State through Advocate-General Sindh, Karachi v. Farman Hussain and others (PLD 1995 SC 1).
Though appellant was implicated by name in the private complaint but same cannot advance plea of complainant as same was filed on later on even after making supplementary statement.
Recovery of motorcycle on the pointation of appellant taken into custody vide memo. (Ex. PG) proved by Muhammad Sher-constable (CW-2) though was heavily relied upon at the instance of complainant but the recovery itself would be hardly sufficient to prove the guilt of appellant being confirmatory and corroborative piece of evidence. In the absence of convincing and worthy of credit ocular evidence, recovery by itself would not be sufficient to prove guilt.
In view of the matter, the learned trial Court failed to appreciate evidence properly in order to connect Pervaiz (appellant) in the commission of crime. Benefit of doubt has to be extended in his favour as a matter of right.
9. Muhammad Mumtaz, Muhammad Ali and Fateh Muhammad were acquitted learned trial Court.
Muhammad Mumtaz was implicated in the FIR with the allegation of proverbial lalkara having pistol while Muhammad Ali and Fateh Muhammad were arrayed as an accused on the allegation of abetment and conspiracy prepared on 19.12.2004 at the dera of Muhammad Hayat, accused (since P.O.). In order to prove this aspect, complainant produced Nazar Muhammad (PW-3) and Khizer Hayat (PW-4).
Both the witnesses with one voice deposed that on 19.12.2004 they were passing from the dera of Muhammad Hayat (P.0) where all the accused Muhammad Hayat, Haq Nawaz, Muhammad Ali, Fateh Muhammad and Pervaiz were present and Muhammad Ali and Fateh Muhammad were advising their associates to kill deceased as and when opportunity arises because deceased has embarrassed them by instituting suit in the Court of Tehsildar, Kot-Momin.
Evidence of both the witnesses when scanned, appears to be an afterthought. Nazar Muhammad (PW-3) is the close relative of complainant and deceased. Khizar Hayat (PW-4) is real maternal nephew of the complainant. Alleged conspiracy was prepared on 19.12.2004 and occurrence took place on 23.12.2004. It is not understandable that why both the witnesses even after getting knowledge of conspiracy neither informed the police nor intimated the complainant or any other rela ive in order to alert them. Slumber on the part of both the witnesses could not be justified casting doubt about their stance. Even otherwise, story disclosed does not appeal to the reason.
According to both the witnesses, conspiracy was prepared by the said accused in the coiner of a garden. Both the witnesses admitted that there are many rooms in the dera. If it was so, it is not understandable why the conspiracy was made at open place and that too loudly in order to invite trouble. Even otherwise, passing of both the witnesses from the dera of Muhammad Hayat (P.O.) is not justified as one witness is residing at the distance of four miles while the residence of other is located at 35 miles from the place of abetment. Both the witnesses did not disclose the purpose and object due to which they were passing in front of dera of accused particularl in view of enmity of Mumtaz (accused) with Muhammad Hayat (PW) brother of Khizar Hayat i PW-4) regarding which criminal case was already pending. It is to be noted that both the witness-examination maintained that Mumtaz is also residing at the same dera. The complainant as such failed to produce convincing evidence.
Mumtaz (accused) was nominated in the FIR with the allegation of proverbial lalkara. Both the witnesses (PW-1 and PW-2) in their respective statements just leveled allegation of lalkara. No overt act was attributed to him though shown armed with .30 bore pistol. The said accused is also facing criminal trial on the allegation of causing injuries to Hayat PW (not produced) brother of Khizar Hayat (both maternal nephew of complainant). Keeping in view the attending circumstances, possibility of his false implication cannot be ruled out. Suspicion, however, strong cannot take the place of proof.
10. Haq Nawaz (appellant) was implicated in the FIR. Specific role was attributed to him of causing injury to the deceased on his back with .12 bore gun. The evidence of both the witnesses (PW-1 & PW-2) does not find any corroboration either from recovery' of weapon of offence or medical evidence. No doubt, ocular account, if inspires confidence can be basis to record conviction even in the absence of recovery which is confirmatory and corroborative piece of evidence but in the attending circumstances same cannot be believed, relied and acted upon in view of medical evidence.
As per prosecution/complainant stance, Haq Nawaz (appellant) and Muhammad Hayat (since P.O.) were armed with .12 bore gun. Muhammad Ali, complainant (PW-1) and Muhammad Afzal (PW-2) in cross-examination admitted that Muhammad Hayat (P.0) had double barrel .12 bore gun. The deceased as per post-mortem report (Ex. PJ) sustained two injuries (Injuries No. 1 and 2) both comprising of nine wounds of entry. Injury No. 3 is exit wound. As per dissection, pellets penetrated from Injuries Nos. 1 and 2 causing damage to the ribs; lungs, pleura and heart. Perusal of pictorial diagrams (Ex. PJ/1) suggests that both the injuries are very close to each other which fact was admitted by Dr. Amjad Iqbal (PW-6) in cross-examination who also stated that both the injuries were caused from the same distance. Relevant replies, are reproduced for ready reference: Both Injuries No. 1 and 2 are very close to each other and both the injuries were caused from the same distance. Possibility is there that both the injuries were caused by a shot from double barrel gun"
Keeping in view the locale of injuries, inter-se closeness, opinion of Medical Officer (PW-6) regarding causing of injuries from double barrel gun, and from same distance, admission of both the witnesses (PW-1 & PW-2) that Muhammad Hayat (P.O.) was armed with double barrel gun and defence version that there was exchange of abusive language between Muhammad Hayat (P.O.) and deceased and ultimately cross-firing .resulting in death of Nawaz, possibility of infliction .of both the injuries by double barrel gun and by same person cannot be ruled out, the benefit of which has to be extended in favour of appellant, Haq Nawaz.
For giving benefit of doubt to an accused, it is not necessary that there should be many circumstances creating doubt. Single circumstance creating doubt entitles the accused to the benefit not as a matter of grace and concession but as a matter of right. Reliance is placed upon "Tariq Pervez v. The State" (1995 SCMR 1345) and "Allah Bachaya and another v. The State" (PLD 2008 SC 349).
11. Pursuant to above discussion, benefit of doubt has to be extended to both the appellants (Haq Nawaz and Pervaiz) and as such while accepting' both the appeals (Cr. A. Nos.957 of 2006 and 1128 of 2007) preferred by appellants they are acquitted of the Charge. They be released forthwith if not required in any other case.
Murder Reference No. 399 of 2006 is answered in the Negative.
Petition for Special Leave to Appeal No. 101 of 2006 also stands dismissed. Criminal Revision No. 708 of 2006 filed complainant also stands dismissed being in fructuous in view of acceptance of appeal preferred by Pervaiz, appellant.