RAJA SHAHID MEHMOOD ABBASI, J.---Through this appeal under section 410, Cr.P.C. Aman Ullah appellant has impugned the judgment dated 21.12.2017 handed down by learned Additional Sessions Judge, Rawalpindi, in case FIR No,431 dated 21.06.2016 registered under sections 302, 324, 337-F(v), 34, P.P.C., at Police Station New Town, Rawalpindi, whereby he was convicted under section 302(b)/34, P.P.C. and sentenced to imprisonment for life as Ta'zir, with a direction to pay Rs,100,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of Naseem Mehboob deceased, recoverable as the arrears of land revenue and in default thereof to further undergo 06- months' S.I. He was further convicted under section 324/34, P.P.C. and sentenced to undergo 04- years' R.I.; under section 337-F(v), P.P.C. and sentenced to pay Rs,50,000/- as Daman to Nusrat Parveen injured (PW14). Benefit of section 382-B, Cr.P.C. was, however, extended in favour of the accused/convict. All the substantive sentences were ordered to run concurrently.
2. Facts shortly stated are that on 21.06.2016 at the early hours of night, the complainant Maqbool Khan (PW15) along with his nephew Naseem Mehboob, who is deceased of the case and sister Nusrat Parveen were proceeding towards commercial market and at 09:45 p.m. when they reached near Banser Plaza, two persons, on motorcycle without number plate, intercepted them.
The pillion rider, with his pistol .30 bore shot at Naseem Mehboob landed on his left shoulder and shin of his left leg, whereas one of the bullets also hit Nusrat Parveen on her right foot. After receiving the injuries, both of them fell down. The assailants after committing the occurrence disappeared from the scene; that the unknown accused could be identified by them if came across.
Both the injured persons were shifted to the Holy Family Hospital where one of the injured Naseem Mehboob succumbed to the injuries, hence, the FIR.
3. On 21.10.2016, the appellant was arrested by Muhammad Zubair, S.I./I.O. (PW16) under section 54, Cr.P.C. and on the following day i,e, 22.10.2016, he was sent to jail for his identification parade. On 26.10.2016 identification parade of the appellant was conducted under the supervision of Syed Zafar Hassan Naqvi, learned Special Judicial Magistrate (PW10) and thereafter he was summoned from jail for the purpose of investigation. After completion of investigation, report under section 173, Cr.P.C. was submitted against Aman Ullah appellant.
4. At the commencement of trial, learned trial court on 01.02.2017 indicted the appellant to which he pleaded not guilty and claimed trial. To substantiate its version at the trial, the prosecution produced as many as seventeen witnesses before the learned trial court, but the relevant would be two witnesses Nusrat Parveen injured (PW 14) and Maqbool Khan complainant (PW15) who were the eye-witnesses of the occurrence. The other important witnesses in this case are Syed Zafar Hassan Naqvi (PW10) who conducted identification parade of the appellant, Muhammad Zubair, S.I./I.O. (PW16), who testified about the investigation conducted by him and Dr. Azhar Farooq (PW4), who on 21.06.2016, conducted postmortem examination on the dead body of Naseem Mehboob deceased and observed the following injuries:-
1. Entry wound 1 x 1 cm with blackening around located 3cm medial to the tip of the left shoulder.
2. Entry wound 1.5cm x 1.5 cm on the lateral aspect of left leg 5cm below the knee joint.
3. Exit wound on medial surface of left leg 8cm below knee joint.
In his opinion, the person died due to hypovolemic shock. Probable time between the injuries and death was 30 to 45 minutes and between death and postmortem examination was half an hour. Ex.
PC is the correct carbon copy of postmortem report.
Likewise, Dr. Sobia Kamran (PW11) on 21.06.2016 medically examined Naseem Mehboob deceased, while he was in injured condition and observed the injuries as noted above. Besides, she also examined Nusrat Parveen injured (PW14) and noted the following injury:-
1. A wound of 1.5cm is present interior surface of right ankle. Irregular inverted margin, no blackening is present.
The doctor was of the opinion that duration of injury was one to two hours and there was no possibility of fabrication. In the light of surgical opinion, the doctor declared the injury as ghayr- jaifah hashimah falling under section 337-F(v), P.P.C. The remaining prosecution witnesses, more or less, are formal in nature. After tendering in evidence the reports issued by the Punjab Forensic Science Agency (Ex.PX and Ex.PY), the prosecution closed its evidence.
5. The appellant in his statement recorded under section 342, Cr.P.C. professed innocence and pleaded his false implication in the case. In reply to question that "why this case has been registered against you and why PWS have deposed against you?" he stated as under:- "As a matter of fact sometimes before the occurrence altercation took place SHO New Town. The hot words were exchanged amongst SHO New Town and present I.O. where both of them beaten me and shifted me to Police Station where they illegally detained me for one month and pull out my urine bag and afterwards arrested me in fake present case and subsequently 1 was got involved in an untraceable murder case. I have not committed any offence. All the allegations leveled against one are fabricated. I am innocent."
He neither opted to record his statement under section 340(2), Cr.P.C. nor produced any witness in his defence.
6. Upon completion of trial, learned trial court found the prosecution's case against the appellant to have been proved beyond reasonable doubt, convicted and sentenced him as mentioned in paragraph No,1 above. Hence, the instant appeal before this Court.
7. Learned counsel for the appellant, in support of this appeal, contends that the judgment passed by learned trial court is against law, facts and material available on the file; that the appellant is not named in the crime report and he has been falsely implicated in this case merely on the basis of suspicion; that there are lot of discrepancies, improvements and contradictions between statements of prosecution witnesses; that the medical evidence also runs contrary to the ocular account of the prosecution case; that the eye-witnesses had advanced their case from the stance taken in FIR and relied on new facts, resultantly making them false and of no worth; that the evidence produced by the prosecution suffers from material irregularities; that the prosecution witnesses had not mentioned any features of the assailants either in FIR or in the statements recorded under section 161, Cr.P.C. therefore there was no benchmark against which to test whether the appellant to whom they had identified after a considerable delay of the crime was in fact the actual culprit. Moreover, the identification parade was not carried out in accordance with the settled law, so the same bears no significance; that the recovery allegedly effected from the appellant is highly doubtful and has been planted upon him just to strengthen the case of prosecution; that the prosecution has miserably failed to prove its case beyond the shadow of doubt, thus, this appeal may be accepted and the appellant be acquitted from the charge.
8. On the other hand, learned Deputy Prosecutor General appearing on behalf of the State opposes the submissions made by learned counsel for the appellant and submits that the matter was reported to the police without any element of deliberation and consultation; that by lodging FIR against unknown accused and by not involving any innocent person in this case, the complainant has shown his bona fide; that the appellant was duly identified by the complainant as well as the injured during the course of identification parade and recovery of weapon of offence was also effected on his pointation; that ocular account is duly supported by medical evidence; that the complainant and the PWs had no enmity, ill-will or grudge against the appellant to falsely implicate him in this case of heinous nature; that the presence of the PWs at the place of occurrence is quite natural and is duly proved through their statements; that the prosecution case stands proved from all corners and independent corroboration in the shape of recovery of weapon of offence is available on the record of this case; that the prosecution has successfully proved its case against the appellant, so his appeal may be dismissed.
9. I have considered the arguments advanced by learned counsel for the appellant and learned Deputy Prosecutor General and have gone through the record with their assistance. It divulges from the record that the incident took place on 21.06.2016 at 09:45 p.m. and the same was reported to the police by Maqbool Khan complainant (PW15) by way of recording his statement under section 154, Cr.P.C. (Ex.PR) before Zameer Haider, S.I. (PWI7) at 11:15 p.m. in consequence of which crime report (Ex.PD) was lodged at Police Station New Town, Rawalpindi on the same night at 11:35 p.m. Initially the crime report (Ex. PD) was lodged against two unknown accused and the appellant was not named therein in any capacity as the culprit of the alleged offence.
Subsequently he was substituted in place of one of the two accused persons. who was driving motorbike and except the role of driving motorbike, no other attribution is specified against the appellant in the crime report (Ex.PD). Even no descriptive features of the person who was driving motorcycle are mentioned in the crime report (Ex.PD). In this eventuality, crime report (Ex.PD) does not render any sort of corroboration to the case of the prosecution against the appellant.
10. In an effort to connect the appellant with the commission of crime in which an innocent person namely Naseem Mehboob was gunned down and real sister of the complainant namely Nusrat Parveen (PW14) sustained injury, the prosecution has heavily relied on the eye-witness account, identification parade, medical evidence and lastly the recovery of firearm weapon. Firstly, I would like to evaluate the eye-witness account furnished by Nusrat Parveen injured (PW14) and Maqbool Khan complainant (PW15), perusal of which shows that both these witnesses departed from their earlier version twisting the facts while appearing in the witness box before learned trial court. In crime report (Ex.PD), it was the case of the prosecution that Nusrat Parveen injured (PW14) and Maqbool Khan complainant (PW15) along with the deceased were going to commercial market, when they were intercepted by two unknown persons, riding motorcycle, and the pillion rider made repeated fire shots, causing injuries to the deceased as well as Nusrat Parveen injured (PW14), but so far as the reason behind the occurrence is concerned, the earlier statements of the complainant as well as the injured PW recorded under sections 154 and 161, Cr.P.C. are absolutely silent. In order to naturalize the story incorporated in crime report and also to point out some mense rea behind the incident, both the said witnesses improved their version while recording examination in chief, wherein they stated that the intention of the accused persons was to commit robbery and in said process Naseem Mehboob deceased offered resistance upon which co- accused of the appellant made fire shots resulting in death of Naseem Mehboob deceased and caused injury to Nusrat Parveen (PW14). Maqbool Khan complainant (PW15), in his examination in chief, further introduced another fact that the appellant directed his co-accused to open fire at the deceased as well as the injured, but no such fact is mentioned in crime report (Ex.PD) nor Nusrat Parveen injured (PW 14) has stated anything in this regard in her previous statement. The aforementioned improvements made by the witnesses of ocular account cast serious doubt in their veracity.
11. As regards the identification of appellant before the trial court by Nusrat Parveen injured (PW14) and Maqbool than complainant (PW 15) is concerned, this evidence which is corroborative in nature, is not much helpful to the prosecution in the circumstances in which he was identified at the place of occurrence. As per prosecution's own case, the incident had taken place at about 09:45 p.m. Neither any source of light has been mentioned by the witnesses nor any features of the accused had been given in their first statements. The manner in which the identification proceedings were conducted raises serious doubt on the credibility of the process. The prosecution witnesses had not only changed the time of incident from 09:45 p.m. to 09:15 p.m. but also introduced another new fact that co-accused of the appellant, besides causing firearm injuries to the deceased and the injured also made fire shot at the complainant (PW15) who luckily survived.
These deviating circumstances are fatal to the prosecution case and cannot be ignored merely because of the heinousness of offence. The appellant was completely stranger to the prosecution witnesses, therefore, in the absence of description in the contents of crime report, the credibility of the identification parade loses its sanctity at this score alone. Reliance is placed on "Sabir Ali alias Fauji v. The State" (2011 SCM R 563). It is also pertinent to mention here that the proceedings of the test identification parade brought on the record of this case clearly show that the appellant had not been picked up by, the eye-witnesses in that parade with reference to any role played by him during the occurrence in issue. In identical situation, the apex Court of the country has held that identification of an accused person without reference to the role allegedly played by him during the occurrence is shorn of any evidentiary value.
Reliance is placed on the cases of "Shafqat Mehmood and others v. The State" (2011, SCMR 537), "Sabir Ali alias Fauji v. The State" (2011 SCM R 563), "Muhammad Fayyaz v. The State" (2012 SCM R 522) and "Azhar Mehmood and others v. The State" (2017 SCM R 135).
13. Adverting to medical evidence, I may observe here that no injury on the person of the deceased as well as that of the injured PW is attributed to the appellant and in such eventuality, medical evidence has got nothing to do as far as the case against the appellant is concerned. Even otherwise, it is settled law that medical evidence may confirm the ocular evidence with regard to the seat of injury, nature of the injury, kind of weapon used in the occurrence but it would not connect the accused with the commission of the offence. Reference in this respect may be made to the case of "Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others" (PLD 2009 SC 53). Similar view was taken by the Hon'ble Supreme Court of Pakistan in the cases of "Mursal Kazmi alias Qamar Shah and another v. The State" (2009 SCM R 1410) and "Altaf Hussain v. Fakhar Hussain and another" (2008 SCM R 1103).
14. So far as the pistol .30 bore shown to have been recovered from the appellant is concerned, admittedly, according to the crime report (Ex.PD) as well as the identification report (Ex.PJ), it was not the case of the prosecution that appellant was equipped with any weapon at the time of incident or he used the same during the incident. Although, Nusrat Parveen injured (PW 14) and Maqbool Khan complainant (PW15), in their examination-in-chief, improved their version and stated that appellant was also equipped with pistol, but this improved version of the eye-witnesses is not permissible under the law. Furthermore, the investigating officer (PW.16) during his cross- examination admitted that the place of alleged recovery was an open place, owned by the government, and was not in exclusive possession of the appellant, which also makes the recovery doubtful. Similarly, the report of the Punjab Forensic Science Agency (Ex.PX) is only pertaining to the mechanical operating condition of pistol, which did not match with any of the five .30 bore ,caliber cartridge cases, collected by the investigating officer during spot inspection. Under the above circumstances, the recovery of pistol and the report of Punjab Forensic Science Agency do not provide any help to the case of the prosecution so as to connect the appellant with the commission of crime.
15. It is not out of place to mention here that during the course of investigation conducted by Muhammad Zubair, S.I. (PW16), the name of main culprit was surfaced on the record as Arnir Khan alias Gul Agha, but the investigating officer did not make any effort to arrest die main culprit of the offence and even did not try to initiate proceedings under sections 87/88, Cr.P.C. against hire. It is also very strange that the investigating officer did not bring the complainant and the injured before the sketch artist for preparation of sketch of accused/driver of the motorbike rather he introduced one Saim. Bukhari as PW (since given up), whose name is not figuring in the crime report (Ex.PD) in any capacity. Similarly, the investigating officer (PW16) did not make any effort to recover the motorcycle used during the incident. Conversely, the defence had placed on the file a copy FIR No,1 dated 11.01.2017, registered under section 161, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947 as Ex.DA, according to which the investigating officer was caught red-handed while receiving a heavy amount of Rs,50,000/- from the complainant of that case by threatening him to involve his innocent relatives in criminal cases. Such a nefarious attitude and character of the investigating officer also casts serious doubt upon the veracity of the material collected by him in order to establish the involvement of the appellant in this case.
16. After having looked into the prosecution case from all angles, I have observed that the case to the extent of appellant is of doubtful nature and his conviction and sentence cannot be maintained on the basis of such type of shaky and unreliable evidence. It is well settled by the apex Court of the country that in case of doubt, its benefit must go to the accused not as a matter of grace, but of right. The same proposition came up for consideration in case of "Muhammad Akram v. The State" 2009 SCM R 230), wherein, at page 236, the Hon'ble Supreme Court of 'akistan, held 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 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 a matter of grace and concession but as a matter of right".
(emphasis supplied)
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. 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 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. So, after considering all the circumstances, this Court is of the considered view that the prosecution has failed to prove its case against the appellant beyond any shadow of doubt, therefore, this appeal is allowed, the impugned judgment is set aside and the appellant is acquitted of the charge. He was released from jail on suspension of his sentence, thus, his surety stands discharged from the liability of surety bonds.