ABDUL SAMI KHAN J.---We, through this single judgment, intend to decide Criminal Appeal No,967 of 2011 titled as "Muhammad Ashfaq v. The State and another", filed by Muhammad Ashfaq appellant against his conviction and sentence, Criminal Appeal No,995 of 2011 titled as "Nasir Mehmood v. Abbas Ali and 2 others" filed by Nasir Mehmood appellant/complainant against the acquittal of Abbas All and Safdar All respondents and Criminal Revision No,299 of 2012 titled as "Nasir Mehmood v. Muhammad Ashfaq and another" filed by Nasir Mehmood petitioner/complainant for enhancement of sentences of Muhammad Ashfaq respondent, as all these matters have arisen out of the same judgment dated 24.05.2011.
2. Muhammad Ashfaq appellant (in Criminal Appeal No,967 of 2011) along with Abbas Ali and Safdar Ali respondents (in. Criminal Appeal No,995 of 2011) were tried by learned Additional Sessions Judge, Sheikhupura in case FIR No,379/2005 dated 23.05.2005 for the offences under sections 302/460, P.P.C., registered at Police Station Saddar, Sheikhupura, who vide judgment dated 24.05.2011 convicted Muhammad Ashfaq appellant under section 302(b), P.P.C. and sentenced him to undergo imprisonment for life as Ta'zir with the direction to pay compensation of Rs,1,00,000/- under section 544-A, Cr.P.C. to legal heirs of the deceased and in default thereof, to further undergo simple imprisonment for three months. The benefit of section 382-B, Cr.P.C. was also extended in favour of Muhammad Ashfaq appellant. As far as Abbas Ali and Safdar Ali respondents are concerned, learned trial court was pleased to acquit them of the charge through the same judgment.
3. The story of occurrence as narrated by Nasir Mehmood complainant in statement under section 154 Cr.P.0 got recorded by him before Sarfraz Ahmad S.I. is that the complainant was resident of village Madaar; he was employee in Tapal Tea manufacturing company and his father Muhammad Rasheed was dealing with the business of pesticides and diesel. During the night between 22nd and 23rd of May, 2005, the complainant and other inmates of the house were sleeping in the courtyard, where his brother-in-law Zulfiqar Ali along with his brother Ghulam Muhammad had also come. At about 2:15 a.m. (night), five accused while armed with weapons entered in the house. They woke up Muhammad Rasheed, father of complainant, and asked to give the amount which he had with him, but he said that he had given the amount to diesel sellers and had no penny with him. The complainant along with Zulfiqar Ali, Ghulam Muhammad and other inmates of the house had also woken up and amongst five accused, they identified two accused as Muhammad Irshad son of Mehndi Khan, caste Bhatti and Muhammad Ashfaq son of Hayat Muhammad, caste Sheikh, residents of Madaar. One of the accused went in the room and took away licensee rifle 7MM of Muhammad Rasheed and upon resistance by Muhammad Rasheed, all the accused grappled with him. Accused Muhammad Irshad made a fire shot with 12-bore gun which landed on right side of abdomen of Muhammad Rasheed, who fell on earth and in the meantime accused Muhammad Ashfaq had grasped Muhammad Rasheed. On seeing Muhammad Rasheed falling on the ground, three accused scaled over the wall, whereas two accused opened the outer-door and fled away and while fleeing away, they also took the licensed rifle of Muhammad Rasheed with him. Muhammad Rasheed was being shifted to hospital in injured condition but he succumbed to the injuries in the way.
4. After registration of FIR, investigation of the case was conducted by Mukhtar Ahmad Inspector, Naseer Ahmad Inspector and Munir Ahmad S.I. During investigation, Abbas Ali and Safdar Ali respondents were also implicated in this case and after conducting their identification parades and concluding the investigation, they were challaned by the police to face trial before learned trial court. At the commencement of trial and after observing legal formalities, learned trial court framed charge against the accused to which they pleaded not guilty and claimed trial. To substantiate its version at the trial the prosecution produced as many as thirteen witnesses before learned trial court. Ocular account was furnished by Nasir Mehmood complainant (PW-3) and Zulfiqar Ali (PW-4). Mukhtar Ahmad Inspector (PW-9), Naseer Ahmad Inspector (PW-10) and Munir Ahmad S.I. (PW-12) are the investigating officers and they testified about the investigation conducted by them, Dr. Muhammad Afzal (PW-7) on 23.05.2005 conducted postmortem examination on the dead body of Muhammad Rasheed deceased, while Ehsan Yaqoob Saqib (PW- ll) and Imran Safdar Lak (PW-13) conducted identification parades of Safdar Ali and Abbas Ali respondents respectively. The remaining prosecution witnesses, more or less, are formal in nature.
After tendering in evidence the report of Chemical Examiner Ex.PQ, report of Serologist Ex.PR and the report of Forensic Science Laboratory Ex.PS, the prosecution closed its evidence. In their statements recorded under section 342, Cr.P.C. the accused professed innocence and pleaded false implication in the case. However, they did not opt to record their statements under section 340(2), Cr.P.C. in disproof of allegations levelled by the prosecution against them and also did not produce any witness in their defence.
5. Upon culmination of trial and after thrashing entire evidence and evaluating arguments advanced by learned counsel for the parties in support of their respective versions, learned trial court found the prosecution's case against Muhammad Ashfaq appellant to have been proved beyond reasonable doubt, convicted and sentenced him as mentioned and detailed in paragraph No,2 above, whereas Abbas Ali and Safdar Ali respondents were acquitted by learned trial court vide same judgment by extending benefit of doubt in their favour. Hence, these appeals and connected criminal revision before us.
6. Learned counsel for Muhammad Ashfaq appellant submitted that the prosecution has miserably failed to bring the guilt of the appellant to the hilt, hence, he deserves clean acquittal. On the other hand, learned Deputy Prosecutor General assisted by learned counsel for the complainant contended that the prosecution has amply proved its case against the appellant beyond any reasonable doubt, so the conviction and sentence of the appellant be maintained and his appeal be dismissed. In addition, learned counsel for Nasir Mehmood appellant/complainant contended that the prosecution had successfully proved the case against Abbas Ali and Safdar Ali respondents and they were conjointly liable to be convicted along with Muhammad Ashfaq appellant, but learned trial court has committed serious irregularity while pronouncing acquittal of Abbas Ali and Safdar Ali respondents. Learned counsel for the complainant has also prayed for enhancement of sentence of Muhammad Ashfaq appellant from life to death and the amount of compensation from Rs,1,00,000/- to Rs,3,00.000/-. As far as Abbas Ali and Safdar Ali respondents are concerned, learned counsel for Abbas Ali and Safdar Ali respondents has argued that Abbas Ali and Safdar Ali respondents are not named in FIR and during trial, the prosecution has badly failed to prove its case against them. He added that atter acquittal by learned trial court, double presumption of innocence is attached to Abbas Ali and Safdar Ali respondents, therefore, the appeal against their acquittal is liable to be dismissed.
7. We have considered the arguments advanced by learned counsel for the parties and have gone through the entire record with their able assistance.
8. It has been observed by us that Nasir Mehmood complainant (PW-3) and Zulfiqar Ali (PW-4) have furnished ocular account, wherein they have stated that on the fateful night, Ashfaq Ahmad appellant, Abbas Ali and Safdar Ali respondents along with co-accused trespassed in the house and during the occurrence, his father Muhammad Rasheed was done to death as a result of fire shot made by co-accused Muhammad Irshad. It is suffice to observe here that said co-accused Muhammad Irshad has already been done to death in a police encounter and he is no more and the case before us is only to the extent of Ashfaq Ahmad appellant, Abbas Ali and Safdar Ali respondents. We have observed that Nasir Mehmood complainant (PW-3), while recording his statement under section 154, Cr.P.C. (Ex.PE), has not disclosed about any source of light in which he identified Muhammad Ashfaq appellant and even while recording his statement before learned trial court as PW-3, he did not speak anything about the availability of source of light at the place of occurrence on the fateful night. Same is the position of Zulfiqar Ali (PW-4) who too has not disclosed the availability of any such light source through which the appellant was identified. We have also scrutinized the site plans prepared by the investigating officer and Muhammad Riaz, Draftsman, (PW-5); the availability of source of light at the place of occurrence is not mentioned, but it is only mentioned in the scaled site plan (Ex.PG) that the witnesses identified the accused in the light of bulb without showing the point where it was installed. In such a situation, we are unable to understand as to how Nasir Mehmood complainant (PW-3) and Zulfiqar Ali (PW-4) had identified Muhammad Ashfaq appellant in the darkness of night.
9. Both Nasir Mehmood complainant (PW-3) and Zulfiqar Ali (PW-4) have levelled allegation against Muhammad Ashfaq appellant that he had grasped Muhammad Rasheed deceased at the time when his co-accused Muhammad Irshad (since dead) fired on him with 12-bore gun, but the site plan (Ex.PG) is silent about the presence of Muhammad Ashfaq appellant as well as other co- accused including Abbas Ali and Safdar Ali respondents and only the presence of co-accused Muhammad Irshad at the spot is shown therein. In addition, the role ascribed by Nasir Mehmood complainant (PW-3) and Zulfiqar Ali (PW-4) to Muhammad Ashfaq appellant that he had grasped Muhammad Rasheed deceased when co-accused Muhammad Irshad made straight fire shot with .12-bore gun on the right side of abdomen of the deceased itself raises serious doubt about his involvement in this case as it does not appeal to a prudent mind that in such a situation, Muhammad Ashfaq appellant would risk his own life. Even otherwise, considering the allegation of grasping the deceased by Muhammad Ashfaq appellant and the nature of weapon used by co- accused Muhammad Irshad for causing injuries to the deceased, it was not possible for Muhammad Ashfaq appellant to escape from sustaining firearm injuries, but astonishingly he did not sustain even a scratch on his body. Besides, we have observed that according to the story set forth in FIR, the assailants were unable to snatch anything from the deceased as he had no money with him at the time of occurrence, but while recording statement before learned trial court, Nasir Mehmood complainant (PW-3) introduced new facts and stated that the accused snatched money which was in possession of the deceased. He also departed from his previous version and stated that Muhammad Ashfaq appellant had lifted the rifle from the room, but no such specific allegation is levelled against him in FIR. Similarly, he stated in his examination-in-chief that Muhammad Rasheed deceased captured Muhammad Ashfaq appellant by calling him as his material nephew, but this fact too is missing in FIR. We have also minutely perused the statement of Zulfiqar Ali (PW-4) who just followed the statement of the complainant and stated nothing more. The improvements made by Nasir Mehmood complainant (PW-3) and Zulfiqar Ali (PW-4) in their statements before learned trial court were duly confronted by the defence during cross- examination with C their previous versions adopted in FIR as well as statement under section 161, Cr.P.C. From the discussion made above it has become clear that the complainant and the other eye-witness introduced new facts and have made dishonest improvements only to strengthen the prosecution case and to give more heinous touch to the incident. In such like circumstances, the Hon'ble Supreme Court of Pakistan has termed the evidence of such witnesses as unreliable and advised not to place explicit reliance on the same. Reliance in this regard is placed on the case of "Muhammad Rafique and others v. The State and others" (2010 SCM R 385) wherein it has been held as under:-- This shows that the witness has suppressed the truth and spoke lie and has no sanctity of Oath.
This Court in the case of Saeed Muhammad Shah v. State 1993 SCMR 550 observed that if a witness improves his statement on material aspects of the case then such improvement is not worthy of reliance and the evidence of such witness requires corroboration. In the case of Khalid Javed v. State 2003 SCMR 1419 while reiterating the above rule. it was further observed that such witness is to be considered to be wholly unreliable and it is not advisable to place explicit reliance upon his evidence."
Thus by making dishonest improvements the complainant and other eye-witness have shattered our confidence upon their testimony to believe their deposition before the learned trial court.
10. As regards the contention of learned counsel for the complainant that Safdar Ali and Abbas Ali respondents were duly identified as the culprits of the offence during their identification parades.
We have observed that Safdar Ali and Abbas. Ali respondents are not named in FIR and neither any role is ascribed to them nor any description or physique. complexion of unknown accused is mentioned therein. The only piece of evidence available against Safdar Ali and Abbas Ali respondents on the surface of record is their identification parade conducted by Ehsan Yaqoob Saqib (PW-11) and Imran Safdar Lak (PW-13) respectively. We have scrutinized the statements of Ehsan Yaqoob Saqib (PW-11) and Imran Safdar Lak (PW-13). In his statement as PW-11, Ehsan Yaqoob Saqib has stated that Safdar Ali respondent was successfully identified by Nasir Mehmood complainant (PW-4) and Zulfiqar Ali (PW-4), whereas according to the deposition made by Imran Safdar Lak (PW13), Abbas Ali respondent could be identified only by Nasir Mehmood complainant (PW-3) and Zulfiqar Ali (PW4) was unable to identify him during the proceedings of identification parade. Both Nasir Mehmood complainant (PW-3) and Zulfiqar Ali (PW-3) are very important witnesses as far as the identification parades of Safdar Ali and Abbas Ali respondents is concerned. but the statements made by both these witnesses during trial before the learned trial court are absolutely silent as they have not spoken even a single word to the effect that they had participated in identification parades of Safdar Ali and Abbas Ali respondents or had identified them during the proceedings of identification parades, conducted ,under the supervision of Ehsan Yaqoob Saqib (PW-11) and Imran Safdar Lak (PW-13) respectively, thus, the facts discussed above are sufficient to disbelieve this piece of evidence against Safdar Ali and Abbas Ali respondents.
11. We may observe here that although the injury on right side of abdomen of Muhammad Rasheed deceased was observed by Dr. Muhammad Afzal (PW-7) during postmortem examination of his dead body, yet the fact remains that this injury is specifically attributed to co-accused Muhammad Irshad (since dead). In this way, the medical evidence becomes immaterial to the extent of Muhammad Ashfaq appellant as well as Abbas Ali and Safdar Ali respondents.
12. So far as the recoveries are concerned, we have observed that a 7MM rifle is shown to have been recovered from Muhammad Ashfaq appellant on 21.07.2005 and a 12-bore gun has been allegedly recovered from Safdar Ali respondent on 23.09.2006, but astonishingly on both these occasions, the recoveries were made by digging earth at the brink of drain and canal, which were located on northern and western side of the village. It is claimed by the prosecution that 7MM rifle is the same which was lifted by one of the accused from the room of house and was taken away after the occurrence, but no identification memo is available on record and even Nasir Mehmood complainant (PW-3) has not stated anything that 7MM rifle allegedly recovered from Muhammad Ashfaq appellant actually belonged to Muhammad Rasheed deceased. Similarly, there is no allegation against Safdar Ali respondent that he was armed with 12-bore gun or he used the same at the time of occurrence and in the absence of any positive report of the Forensic Science Agency regarding the 12-bore gun allegedly recovered from Safdar Ali respondent, the same is inconsequential and cannot be used against him.
13. The above minute scrutiny of the record and evidence clearly depicts that the prosecution case against Muhammad Ashfaq appellant as well as Abbas Ali and Safdar Ali respondents is of doubtful nature and they cannot be convicted and sentenced on the basis of such type of shaky, undependable and untrustworthy evidence. It is settled law that not many circumstances, creating doubt in the prosecution story are required but only a single circumstance creating doubt in the prosecution story is enough to acquit the accused. Reliance can be placed on the case of "Tariq Pervez v. The State" (1995 SCM R 1345), wherein the Hon'ble Supreme Court of Pakistan has observed as under:-- "5. ... The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right. '
The case in hand is replete with number of circumstances which have created serious doubt about the prosecution story. It is also universally recognized principle of law that conviction can only be based upon unimpeachable evidence and certainty of guilt and any doubt arising in the prosecution case must be resolved in favour of the accused not as a matter of grace, but of right.
In "Ayub Masih v. The State" (PLD 2002 Supreme Court 1048), while quoting a saying of the Holy Prophet (PBUH) that 'mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent", and making reference to the maxim, that 'it is better that ten guilty persons be acquitted rather than one innocent person be convicted' the learned Apex Court of our country has been pleased to observe 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".
In another case reported as "Muhammad Akram v. The State" (2009 SCM R 230) Hon'ble Supreme Court of Pakistan has been pleased to observe as under:-- "13. 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 SCM R 1345) 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 the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right".
14. We may also observe here that when a court of competent jurisdiction acquits an accused of the charge, then double presumption of innocence will always attach with the order of acquittal and very strong and exceptional grounds are required to set aside the order of acquittal. Reference can be made to the case of "Iftikhar Hussain and others v. The State" (2004 SCM R 1185) wherein the Hon'blelSupreme Court of Court has held as under:-- "It is well-settled principle of criminal administration of justice that when an accused is acquitted of the charge, he enjoys double presumption of innocence in his favour and Courts seized with acquittal appeal under section 417, Cr.P.C. are obliged to be very careful in dislodging such presumption. Undoubtedly, two views are always possible while appreciating the evidence available on record, therefore, for such reason and in order to avoid the multiplicity of litigation, it is always insisted that the Court should follow the recognized principles for interference in the acquittal judgment as held in the case of Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11 that the Appellate Court seized with the acquittal appeal under section 417, Cr.P.C. is competent to interfere in the order challenged before it provided it has been established that the trial Court has disregarded material evidence or misread such evidence or received such Evidence.
15. The upshot of above discussion is that the prosecution has failed to prove its case against Muhammad. Ashfaq appellant as well as Abbas Ali and Safdar Ali respondents beyond any reasonable shadow of doubt. Thus, Criminal Appeal No,967 of 2011 titled as "Muhammad Ashfaq v.
The State and another", filed by Muhammad Ashfaq appellant against his conviction and sentence is allowed and he is acquitted of the charge by extending benefit of doubt to him. Muhammad Ashfaq appellant is present before the Court on bail, his surety stands discharged from the liability of surety bonds. Criminal Appeal No,995 of 2011 titled as "Nasir Mehmood v. Abbas All and 2 others" filed by Nasir Mehmood appellant/complainant against the acquittal of Abbas Ali and Safdar Ali respondents is hereby dismissed and the notices issued to them are recalled.
16.Adverting to Criminal Revision No,299 of 2012 titled as "Nasir Mehmood v. Muhammad Ashfaq and another" filed by Nasir Mehmood petitioner/complainant for enhancement of sentences of Muhammad Ashfaq respondent, keeping in view the findings given in the preceding paragraphs, this criminal revision has become infructuous and same is dismissed accordingly.