KHADIM HUSSAIN M. SHAIKH, J.---This judgment will dispose of two matters namely the captioned appeal directed against the judgment dated 4.10.2011, passed by IV-Additional Sessions Judge, South Karachi, in Sessions Case No,448 of 2005 re-The State v. Saeedul Haq alias Abdullah and another culminated from FIR No,104 of 2005 for offences under sections 302, 392, 397, 216, 34, P.P.C. registered at Police Station Kalri, Karachi Sought, whereby, the appellants Saeedul Haq alias Abdullah and Muhammad Arshad have been convicted and sentenced to suffer R.I. for 15 years as Ta'zir and they have also been directed to pay compensation of Rs:500,000/- each to the legal heirs of the deceased under section 544-A, Cr.P.C. or in default thereof they should suffer S.I. for six months more; and, the captioned Criminal Revision Application, filed by the complainant Muhammad Asghar Abbasi, seeking enhancement of the sentences awarded to the appellants from 15 years to death.
2. Briefly the facts of the case are that on 19.04.2005 at 0130 hours the aforementioned FIR was lodged at Police Station Kalri by incorporating therein, the statement of complainant Muhammad Asghar Abbasi son of Muhammad Faris Khan Abbasi, stating therein that he is working as Clearing Forwarding Agent. On 18.04.2005 at night time, while he was present at his home, he received telephonic information that his cousin namely Muhammad Shakeel son of Muhammad Sarfraz Abbasi, having sustained fire arm injuries, was taken to Civil Hospital Karachi. The Complainant rushed to Civil Hospital Karachi, where he came to know that his injured cousin succumbed to his injuries. On enquiry the complainant came to know that his cousin Shakeel was residing at Sohail Apartment, 2nd Floor, Agra Taj Colony and was running a car Showroom at Gulshan-e-Iqbal and he (Shakeel), while on his way to his home in his car bearing No,ABS-552 at about 10:40 p.m. when reached in-front of PSO Petrol Pump near Shadi Khail Adda Maripur Road, some unknown persons opened fires with weapons which hit him on his neck, sustaining severe injuries. Police party on patrolling brought Shakeel in Civil Hospital Karachi for treatment, where he succumbed to his injuries.
3. During investigation police arrested appellants Saeedul Haq, Muhammad Arshad and one Zahir Shah, who all were sent up with the challan to face their trial. Formal charge was framed against all the three accused on 27.08.2005 at Ex.2, to which they did not plead guilty and claimed to be tried per their pleas at Ex.2/A, 2/B and 2/C respectively. Subsequently, accused Zahir Shah having died during the trial, the proceedings against him were abated on 29.07.2006.
4. To prove its case, the prosecution examined complainant Muhammad Asghar Abbasi as P.W-1 at Ex.3, who produced his statement under section 154, Cr.P.C. and FIR at Ex.3/A, receipt of receiving dead body of deceased Mohammad Shakeel at Ex.3/B; P.W-2 Amanullah at Ex.4, who produced notice issued to him by the police for recording his statement under section 164, Cr.P.C. at Ex.4/A, his statement under section 164, Cr.P.C. recorded before the VIth Judicial Magistrate Karachi, South at Ex.4/B; P.W-3 Altaf Hussain at Ex.8, who produced memo of dead body at Ex.8/A, inquest report at Ex.8/B and his statement under section 164, Cr.P.C. recorded before the Judicial Magistrate at Ex.8/C; P.W-4 Muhammad Fazil Abbasi at Ex.9, who produced memo of arrest of the accused namely, Saeedul Haque and Zahir Shah dated 02.05.2005 at Ex.9/A; P.W-5 Mashir Muhammad Akhtar, at Ex-10, who produced memo of scene of offence at Ex.10/A. P.W-6, SIP Muhammad Anwar, (who had conducted initial proceedings after receiving information about the incident), at Ex.11, who produced two roznamcha entries dated 18.04.2005 at Ex.11/A and 11/B, letter issued by him to MLO for conducting postmortem of deceased Muhammad Shakeel at Ex.-11/C, letter of MLO at Ex.11/D, FIR at Ex.11/E and produced entry No,50 dated 19.04.2005 at Ex.11/F; P.W-7 H.C. Muhammad Basharat at Ex.12, who produced memo of arrest of accused Saeedul Haq and Zahid Shah dated 02.05.2005 at Ex.12/A and memo of arrest of accused Arshad dated 12.05.2005 at Ex.12/B and memo of the arrest of the same accused dated 13.05.2005 at Ex.12/C: P.W-8 Mr.Khushi Muhammad, the then CivilJudge/JudicialMagistrate-VIII Karachi South, (before whom the statements under section 164, Cr.P.C. of the witnesses were recorded), at Ex.13, who produced letter of Investigating Officer, for recording statements of witnesses at Ex.13/A, statement of P.W. Altaf Hussain at Ex.13/B; P.W-9 SIP Amanat Ali at Ex.14, who produced memo of Inspection of the car of deceased Muhammad Shakeel dated 19.05.2005 at Ex.14/A, letter of SIP addressed to Major T.A.Khan of ISI Karachi at Ex.14/B, entries kept during the course of investigation as Ex.14/C/1 to 14/C/4; 14/D, 14/E, 14/E/1, 14/E/2 and 14/F, his letter to In-charge Chemical Examiner at Ex.14/G, FIR under section 13(e) of Arms Ordinance against accused Saeedul Haq at Ex.14/H, notice to witnesses at Ex.14/I, notice to accused at Ex.14/J, Chemical Examiner Report at Ex.14/K; P.W-10 MLO Dr. Abdul Jabbar Memon, (who had conducted postmortem of deceased Shakeel Abbasi and issued postmortem report) at Ex.15, who produced postmortem report of deceased Muhammad Shakeel at Ex.15/A. However, P.W Aijaz Ahmed was given up by the learned DDPP for the state vide his statement dated 27.03.2007. The statements under section 342, Cr.P.C. of accused Muhammad Arshad and Saeedul Haq were recorded on 28.08.2010 at Ex.16 and 17. Accused Saeedul Haq produced photo copy of his statement under section 161, Cr.P.C. dated 20.04.2005 at Ex.17/A, certified copy of judgment in case under section 13(e) of Arms Ordinance at Ex.17/B, certified copy of FIR No,132/2005 at Ex.17/C, certified copy of deposition of P.W. Muhammad Asghar Abbasi at Ex.17/D, attested copy of mashirnama of recovery of weapon at Ex.17/E. As the original FSL report could not be produced, hence on the application moved by the learned DDPP for the State attested copy of FSL report, sent by AIG, Criminalistic Division Sindh, Karachi and duplicate FSL report were produced at Ex.14/L and 14/M respectively. Since the FSL report was produced, afresh hence the statements of accused Saeedul Haq and Muhammad Arshad were recorded afresh on 30.04.2011 at Exs.18 and 19. Both the appellants/ accused denied the prosecution case and professed their innocence; they, however, did not examine themselves on oath nor did they examine any defence witness. The learned trial court after hearing the counsel for the parties and learned DDPP for the State, passed the impugned judgment dated 04.10.2011, whereby the appellants have been convicted and sentenced, as discussed in paragraph-1 supra, hence this appeal.
5. Learned counsel for the appellants has mainly contended that the names of the accused do not find place in the FIR nor their descriptions are shown therein; that no identification parade of the appellants through alleged eye-witnesses namely Amanullah and Altaf Hussain was held; that all the P.Ws are interested and no independent person was cited as witness or Mashir by the prosecution although the incident is alleged to have taken place near PSO Petrol Pump Shadi Khail Adda Maripur Road; and, that the prosecution has failed to prove the case against the appellants beyond shadow of any doubt. He, therefore, prays that appeal may be allowed and the appellants may be acquitted by setting aside the impugned judgment, conviction and sentence awarded to the appellants or in the alternate sentence of the appellants may be reduced to that already undergone, contending that appellant Saeedul-Haq, who is an old man aged of more than sixty years and the appellant Muhammad Arshad, who is by now in his late 30s, the sentence of 15 years R.I. awarded to them by the trial Court is higher on side; and the appellants, having remained in custody, by now have served sentence of more than 11 rears including the remissions etc. having been awarded to them, and, per him, the period for which the appellants have remained in imprisonment would be sufficient punishment for them.
6. Conversely, the learned counsel for the complainant has mainly contended that the prosecution case has been supported by the P.Ws eye-witnesses of the occurrence namely Amanullah and Altaf Hussain; that the prosecution case has also been corroborated by the Medical evidence and the recovery of crime weapon; that the learned trial Court convicted the appellants under section 302(c), P.P.C., sentenced them only to suffer R.I. for 15 years; and, that death sentences ought to have been awarded to the appellants. He, therefore, prays that the sentence awarded to the appellants by the trial Court may be enhanced to death sentence. The learned A.P.G. adopting arguments of learned counsel for the complainant, further submits that the sentence awarded to the appellants may be enhanced from 15 years R.I. to life imprisonment, per him, there are mitigating circumstances in the case in hand, therefore, death sentence under the peculiar circumstances of the case, would not be warranted.
7. We have considered the arguments of learned counsel for the parties and have gone through the record.
8. From a perusal of record it would be seen that the occurrence in this case had taken place during night falling between 18.04.2005and 19.04.2005;the complainant does not claim himself to be the eye-witness of the occurrence, for, he lodged the FIR through his statement under section 154, Cr.P.C. upon an information supplied to him on cell phone about deceased Muhammad Shakeel's receiving injuries and then after taking to Civil Hospital Karachi his having succumbed to injuries in the Hospital; the prosecution had examined various witnesses which include two alleged eye-witnesses namely Amanullah and Altaf Hussain P.W-2 and P.W.3 respectively, who both although claimed themselves to be available near the place of wardat at the time of incident, yet they both were not named as witnesses in the aforesaid FIR; P.W-3 Altaf Hussain has deposed before the learned trial Court that after the incident was over, Muhammad Shakeel was taken out from the driving seat of his car by two police personnel with the help of other people gathered there and was shifted to Civil Hospital Karachi by seating him on rear seat of the said car in injured condition and the said P.W. Altaf Hussain claimed to have followed the aforesaid car and reached Civil Hospital Karachi, where Muhammad Shakeel succumbed to his injuries, P.W. Amanullah also deposed before the trial Court that Muhammad Shakeel was shifted to Hospital in his car in ' injured condition, but the medical evidence has belied the version of both the alleged eye- witnesses Amanullah and Altaf Hussain, for, deposition of P.W.10 Dr. Abdul Jabbar Memon Ex.15 and the postmortem report Ex.15/A, reflect the death of deceased Muhammad Shakeel was instantaneous; the medical evidence further reflects that P.W.SIP Muhammad Anwar of Police Station Kalri brought dead body of Muhammad Shakeel at Civil Hospital Karachi, which fact is belied by SIP Muhammad Anwar, who has deposed that on 18.04.2005 at 10:45 p.m. he reached at Police Station Kalri where SHO informed him that one person has been shot dead at Maripur and then he reached Civil Hospital, Karachi where he found dead body of the said deceased lying in the mortuary, who was identified as Shakeel Abbasi through his identity card, which was secured from his pocket in the mortuary, where he prepared the memo of dead body and also completed the proceedings under section 174, Cr.P.C. He went on to further depose that he contacted the relative of the deceased through mobile number of the deceased whereupon complainant Muhammad Asghar Abbasi and his other relatives reached at Civil Hospital Karachi and whereas PW Altaf Hussain deposed that he informed the complainant Muhammad Asghar about Muhammad Shakeel's sustaining injuries and taking him to Civil Hospital Karachi in injured condition, but the complainant Muhammad Asghar did not depose that he was informed either by PW Altaf Hussain, about Muhammad Shakeel's sustaining injuries and shifting to the hospital or by PW SIP Mohammad Anwar. It further reveals that P.W.3 Altaf Hussain claimed to have been handed over dead body of deceased Muhammad Shakeel after postmortem, but this version of PW Altaf Hussain has also been belied by the complainant Muhammad Asghar, who claimed to have received the dead body of deceased Muhammad Shakeel after postmortem which fact is further corroborated from the receipt issued by the complainant in token of having received the dead body of deceased Muhammad Shakeel, produced at Ex.3/B. Furthermore, P.W Altaf Hussain had acted as mashir in superdiginama of dead body, clothes of deceased etc, prepared at mortuary of Civil Hospital Karachi, where although he was shown remained available, yet he never claimed himself to be eye-witness of the occurrence and it was first time on 25.04.2005 i,e, after six days of the incident, the said mashir P.W Altaf Hussain was introduced by the prosecution as its one of the eye-witnesses of the occurrence, when his statement under section 161, Cr.P.C. was recorded by the police. Likewise, name of other alleged eyewitness Amanullah also did not find place in the FIR as witness and he was introduced as an eye-witness on 25.4.2005 i,e, after six days when his statement under section 161, Cr.P.C. was recorded. The incident allegedly took place on 18.04.2005 and whereas the statements of alleged eyewitnesses Amanullah and Altaf Hussain under section 161, Cr.P.C. were recorded on 25.04.2005, but in both the aforesaid statements of the P.Ws, the names of the appellants Saeedul Haq and Muhammad Arshad are not mentioned and even at the time of recording their statements under section 164, Cr.P.C. before the Magistrate concerned on 18.05.2005, the present appellants, who were produced in custody,' were neither named therein as a culprits nor they were shown identified by the alleged eye-witnesses Amanullah and Altaf Hussain, who first time named and identified the appellants Saeedul Haq and Muhammad Arshad in their depositions at Ex.4 and at Ex.8 recorded on 04.03.2006 and 11.01.2007 respectively i,e, after more than 11 months and more than 19 months respectively of the incident before the trial Court and in our considered humble view, identification of accused in Court after such a long delay of the incident hardly satisfy the requirement of law, for, proving the identity of the culprits and a valid identification the identification parade test is not only essentially to be held, but it must be conducted fairly and properly, but no identification test of the accused through the alleged eye-witnesses is alleged to have been held in the case in hand.
In case of Sohail Abbas and others v. Kashif and others (PLD 2001 SC 546), the Hon'ble Supreme Court of Pakistan has observed that:-- "There is nothing available on record to indicate why identification parade of the accused persons was not held. Admittedly they were known to the witnesses and in such circumstances if identification parade is not held, it becomes virtually impossible, in absence of any other evidence, to connect with the alleged occurrence."
9. In so far as the medical evidence is concerned, it may be observed that deceased Muhammad Shakeel had died of unnatural death due to fire arm injuries sustained by him on his neck and shoulder which both injures were certified to be sufficient to cause death of deceased Muhammad Shakeel instantaneously in ordinary course and the postmortem of deceased Muhammad Shakeel was started at 11:50 p.m. and the time between death and postmortem was shown by the medical officer to be 3 .to 4 hours, and, thus the deceased Muhammad Shakeel, per medical evidence, had died between 7:50 p.m. and 8:50 p.m., but both the P.Ws Amanullah and Altaf Hussain claimed to be present at the alleged place of incident, which, per them, took place at 10:45 p.m.; medical evidence further belied the prosecution case as the prosecution case is that the deceased Muhammad Shakeel was taken to the Hospital by two police personnel, but the names of those two police personnel were never surfaced or disclosed by the prosecution rather the postmortem report Ex.15/A shows that the dead body was brought at Civil Hospital Karachi by SIP Mohammad Anwar, who in his deposition deposed that at 10:45 p.m. he was available at Police Station Kalri, where he was informed by the SHO Kalri that one person was shot dead on Maripur Road so he should reach Civil Hospital Karachi, and on reaching Civil Hospital Karachi, he found dead body of one person (deceased Muhammad Shakeel) lying in mortuary of Civil Hospital Karachi, where he with the permission of MLO conducted the necessary proceedings under section 174, Cr.P.C. etc and also recorded statement of complainant Muhammad Asghar, which was incorporated in book under section 154, Cr.P.C. being the subject FIR. Moreover, no independent person among so many persons allegedly gathered at the place of incident and were available at the PSO Petrol Pump, two tyre puncture repairing shops, hotel etc., located there near the alleged place of incident was examined and nor any one among the two police personnel, who allegedly took Muhammad Shakeel to the Hospital in injured condition, was examined by the prosecution nor their names were disclosed by the prosecution although their testimony could also throw light to the actual occurrence and to support the version of alleged eye-witnesses Altar Hussain and Amanullah regarding their presence at the time of incident. Furthermore, P.Ws Altaf Hussain and Amanullah recorded their statements under section 161, Cr.P.C. on 25.04.2005 i,e, after six days of the incident without any plausible explanation for such an inordinate delay in recording their statements under section 161, Cr.P.C., more particularly, when PW Altaf Hussain, having acted as mashir, was shown available at the time of preparing mashirnamas of clothes and superidiginama of dead body of deceased Muhammad Shakeel, in Civil Hospital Karachi, but he neither claimed himself to be the eyewitness of the occurrence nor did he record his statement under section 161, Cr.P.C. prior to 25.04.2005 and the statements under section 164, Cr.P.C. of the aforesaid two alleged eye- witnesses Altaf Hussain and Amanullah were recorded with further delay of one month from the date of alleged incident and 25 days after their statements under section 161, Cr.P.C., but such an inordinate delay was not at all explained by the prosecution; even otherwise both the appellants namely Saeedul Haq and Muhammad Arshad were neither named in the statements under section 161, Cr.P.C. nor were they named in the statements under section 164, Cr.P.C. by the alleged eye- witnesses Amanullah and Altaf Hussain, who even had not shown to have identified the appellants Saeedul Haq and Muhammad Arshad as culprits of the alleged subject crime before the Magistrate concerned at the time of recording of their statements under section 164, Cr.P.C., which were admittedly recorded in presence of the appellants, who were brought before the police in custody on production order of the Magistrate concerned. Patently, the alleged eye-witnesses Amanullah and Altaf Hussain, having made dishonest and deliberate improvements in the prosecution case through their evidence, militates against bona fides of the prosecution and greatly mars the evidentiary value of the alleged identification of the accused by the said alleged eye-witnesses during the trial before the trial Court at the time of recording their depositions, recorded after considerable delay of more than 11 months and 19 months respectively of the incident, for, the identification parade of the accused in Court for the first time, after such a long delay in the absence of strong corroboratory evidence is not safe to be relied upon, for, such evidence is not only unreliable, but is highly doubtful too.
In case of Asghar Ali v. The State (1992 SCMR 2008), the Hon'ble Supreme Court of Pakistan has held that:-- "The identification in Court of a person produced. as an accused months after the event could not satisfy the requirements.of law for proving the identity of the culprit.
In case of Akhtar Ali and others v. The State (2008 SCMR 6), the Hon'ble Supreme Court of Pakistan has held that:-- "It is also a settled maxim when a witness improves his version to strengthen the prosecution case, his improved statement subsequently made cannot be relied upon as the witness had improved his statement dishonestly, therefore, his credibility becomes doubtful on the well known principle of criminal jurisprudence that improvements once found deliberate and dishonest cast serious doubt on the veracity of such witness. See Hadi Bakhsh's case PLD 1963 Kar. 805."
10. So far the recovery of alleged weapon of crime is concerned, the same was allegedly recovered near the Grid Station Wall Maripur Road, which, needless to say being an open place, was accessible to everyone; moreover, the prosecution had failed to establish the alleged recovery of weapon in namely 30-bore T.T. Pistol along with loaded magazine, containing two live bullets and the appellant Saeedul Haq, who was tried before the learned Court of Magistrate concerned in off- shoot Case No,2768/2009 Re-The State v. Saeedul Haq, under section 13(e) of Arms Ordinance, culminated from FIR No,132 of 2005 registered at Police Station Kalri, was acquitted of the charge vide judgment dated 01.03.2010, certified copy whereof has been produced by appellant Saeedul Haq at Ex.17/B, in his statement under section 342, Cr.P.C. recorded before the trial Court. On a query, learned Assistant Prosecutor General conceded that no appeal against the acquittal of the appellant in the aforesaid off-shoot case has been filed by the state and as such the alleged recovery of the weapon has also not been proved.
In the case of Muhammad Ilyas v. The State (1997 SCM R 25), the Hon'ble Supreme Court of Pakistan has held that:-- "It is well-settled principle of law that where evidence creates doubt about the truthfulness of prosecution story, benefit of such a doubt had to be given to the accused without any reservation.
In the result, there is no alternative but to acquit the appellant by giving him benefit of doubt".
In the case of Ghulam Qadir and 2 others v. The State (2008 SCM R 1221), the Hon'ble Supreme Court of Pakistan has held that:-- "16. It needs no reiteration that for the purpose of giving benefit of doubt to an accused person, more than one infirmity is not required, a single infirmity creating reasonable doubt in the mind of a reasonable and prudent mind regarding the truth of the charge-makers the whole case doubtful. Merely because the burden is on the accused to prove his innocence it does not absolve the prosecution from its duty to prove its case against the accused beyond any shadow of doubt end this duty does not change or vary in the case. A finding of guilt against an accused person cannot be based merely on the high probabilities that may be inferred from evidence in a given case. Mere conjectures and probabilities cannot take the place of proof. Muhammad Luqman v.
The State PLD 1970 SC 10."
In case of Muhammad Akram v. The State (2009 SCM R 230), the Hon'ble Supreme Court of Pakistan has held that:-- It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrued in favour of 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 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 matter of grace and concession but us a matter of right.
11. Upon our own independent careful evaluation of the evidence, we have come to an irresistible conclusion that the aforesaid material contradictions, dishonest and deliberate improvements, made by the alleged eye-witnesses in their evidence during the trial, rendering the case of prosecution highly doubtful, which did go to the root of the prosecution case, were not at all attended to by the trial Court while evaluating the evidence; and, thus the impugned judgment dated 04.10.2011 passed by IV-Additional Sessions Judge, South Karachi manifestly, suffers from misreading and non-reading of the evidence brought on record.
12.In view of what has been discussed above, we are of the considered opinion that the prosecution has failed to prove its case against the appellants beyond reasonable doubt, and thus, the conviction and sentence awarded to the appellants Saeedul Haque alias Abdullah and Mohammad Arshad vide impugned judgment dated 04.10.2011, passed by IV-Additional Sessions Judge South Karachi, in Sessions Case No,448/2005 re-State v. Saeedul Hague alias Abdullah and another, are set aside and the appellants are acquitted of the charges. The appellants are directed to be released forthwith, if they are not required in any other case.
13.In view of our above conclusion, the Criminal Revision Application No,D-184 of 2011, filed by the complainant, seeking enhancement of the sentence, being devoid of merit, is dismissed.