Sardar Ahmed Naeem, J,--Ghulam Murtaza (appellant) alongwith Ghulam Mustafa and Muhammad Ramzan co- accused (since acquitted) were tried by the learned. Addl. Sessions Judge, Multan, in case F.I.R. No. 1129 of 2008 dated 26.12.2008, under Sections 302/34 PPC, registered at Police Station New Multan, District Multan. At the conclusion of the trial, vide judgment dated 18.07.2012, the learned, trial Court held the appellant Ghulam Murtaza guilty , convicted him under Section 302(b), PP.C. and sentenced to death with compensation of Rs. 3,00,000/- under Section 544-A, Cr.P.C. payable to the legal heirs of the deceased, in default thereof to further undergo simple imprisonment for six months. The learn ed trial Court, however , acquitted co-ac cused of the appellant namely Ghulam Mustafa and Muhammad Ramzan, by giving them benefit of doubt.
2. The convict/ appellant filed the instant Criminal Appeal No.98-J of 2013 against his conviction and sentence whereas Qari Muhammad Rafique, complainant filed Crl. Appeal No.643/2012 against the acquittal of Ghulam Mustafa, and Muhammad Ramzan Respondent Nos.2 and 3. Murder Reference No. 13 of 2016 is also before us for confirmation or otherwise of the death sentence awarded to Ghulam Murtaza convict. By way of this single judgment, we proposed to dispose of all the above mentioned three matters.
3. Allegedly , on 26.12.2008 at about 11/12.00 noon, Ghulam Murtaza appellant, along-with co-accused Muhammad Ramzan and Ghulam Mustafa armed with "churries " inflicted "churri " blows on the person of Tariq Mehmood and committed his murder .
4. After usual investigation, challan was submitted before the Court. The learned trial Court framed charge against them to which, they pleaded not guilty and claimed trial. Hence,. the prosecution evidence was summoned.
5. In order to prove its case, the prosecution examined as many as thirteen witnesses in all.
6. Doctor Asif Jameel Ansari, Senior Demonstrator , Nishtar Medical College Multan (FW-1) conducted medical examination of Tariq Mehmood injured. He was admitted in ICU and was unconscious. He was on ventilator and endotracneal tube was passed. He further observed bandage applied over neck and left hand and left forearm.
Injury No.1 and 2 were kept under observation. Riaz Hussain HC (PW-2) after receiving complaint Ex.PB recorded formal FIR Ex.PB/1.
7. Doctor Fayyaz Khan Durrani, Senior Demonstrator , Forensic Department. Nisht ar Medical College, Multan (PW- 3) conduced post-mortem examination on the dead body of Tariq Mehmood deceased and found following injuries:- i. An abrasion 1.5 cm x 3/4 cm just blow lower lip on left side with red scab formation was present; ii. A superficial skin deep cut 2 cm x 1 14 cm with red scab formation was present in front of chain; iii. A stitched wound 5 cm in length with eight stiches on left side of upper part of neck just below chin; iv. A long stitched wound 17 cm in length with 20 stitches in place encircling the right side of neck, front of neck and extending to left side of neck at the level thyroid cartilage. It was 3 cm below from injury No.3; v. A carved stitched wound 8 cm in length with eight stitches in place on back of left hand extending from base of left index index to middle finger's proximal pharyax; vi. Two fine surgical cuts with two stitches, each on both lower legs 2 cm above left ankles medial side of maintaining intravenous line."
8. Khalid Mehmood (PW-4) was telephon ically informed by Muhammad Ramzan co-accused that his brother Tariq Mehmood deceased, was in his custody and they will teach him a lesson. He informed the matter to his uncle Qari Muhammad Hanif (PW-6) on telephone, upon which, Qari Muhammad Hanif alongwith Muhammad Iqbal (PW-7) went to the place of occurrence. He was also witness of identification parade and blood stained earth.
9. Qari Muhammad Rafique, complainant (PW-5) supported the prosecution story as mentioned in the FIR. Qari Muhammad Hanif (PW-6) was eye witnes s of the occurrence. Muhammad Iqbal (PW-7) corroborated the statement of Qari Muhammad Hanif (PW6).
10. Irfan Hayat Draftsman (PW-9) visited the place of occurrence and took rough notes on the direction of the police and on the pointation of PWs. On 09.01.2009, he handed over scaled site-plan Ex.PH, Ex.PH/1 and Ex.PH/2.
11. Muhammad Ashraf S.I. (PW-10) investigated the case. Rest of the PWs are of formal nature, therefore, need not to be reproduced.
12. The prosecution while tendering report of Chemical Examiner (Exh.PM) regar ding blood stained churri, report of Serologist (Exh.PN) regarding blood stained churri , report of Chemical Examiner (Exh.PQ ) regarding blood stained earth and report of Serologist (Exh.PR) regarding blood stained earth closed its case.
13. After close of the prosecution evidence, the accused were examined under section 342 Cr.P.C, In answer to a question "why this case against you and why the PWs deposed against you" , the appellant Ghularn Murtaza stated as under:-- "The present case was wrongly registered against me. On the day of alleged occurrence, Tariq Mahmood deceased came on motorcycle to my house where I was alone present. Five years prior to occurrence, the sister of Tariq Mahmood deceased was engaged with me. Later on, I refused, to marry with the sister of deceased. The deceased came there having a Chhuri and he attempted to assault on my person with the intention to finish me.
During the scuffle, the deceased receiv ed injuries and later on died in hospital. In fact, the deceased was aggressor . The occurrence took placed in front of my house. The deceased came to my house from a distance of 8 milometers from his house which is situated at Qasimpur Colony . My brothers Ghulam Mustafa and Muhammad Ramzan were not present at the time of occurrence."
14. The appellant neither opted to appear as their own witnesses under Section 340 (2) Cr.P.C. nor produce any evidence in defence.
15. Learned counsel for the appellant has argued that two witnesses namely , Qari Muhammad Hanif and Muhammad Iqbal claimed to be the eye witnesses of the occurrence were not present at the scene of come and they have given evidence in support of the prosecution because of their close relationship with the deceased, thus, they were interested witnesses and partisan; that their statements are also belied by the site-plan as according to the witnesses the deceased was sitting on his motorbike and after sustaining injuries fell down but neither the motorbike was taken into possession nor into blood of the deceased was secured from the seat of motorbike.
It was next argued that if two witnesses named above, were present at the crime scene, they would have re-acted at-least by raising hue and cry if physica lly it was not possible for them to rescue the deceased who was under attack by the three persons giving him churri blows.
Learned counsel also challenged their presence on the ground that neither' two witnesses were resident of the same locality to which the deceased belongs because the place of ordinary residence of Muhammad Iqbal is at a distance of kilometer and Qari Muhammad Hanif resided at Mohallah Qasim Pur at a distance of 7/8 kilometer from the place of occurrence.
Learned counsel for the appellant has also challenged the various recoveries allegedly , made on the pointing out of the accused-appellant including the recovery of churn. His submissions was that to support the recovery prosecution examined Abdul Jabbar (PW.8) and his evidence has also been challenged by the learned counsel on the ground that he was not inhabitant of the place where from alleged recovery was made much less he was not notable of the area. He further added that, if the evidence of recovery is believed even then in absence of reliable ocular account, mere recoveries of certain articles belonging to the deceased would not be sufficient to legally justify the conviction of the appellant on the charge of the murder .
It was argued that the prosecution version was belied by the medical evidence and that the motive was also not proved. Concluding the arguments, learned counsel submitted that the prosecution miserably failed to prove its case against the appellant beyond reasonable shadow of doubt and every doubt even slightest is always resolved in favour of the accused.
16. At this stage, it may be mentioned that the complainant did not turn up despite valid service.
17. Learned Deputy District Public Prosecutor supported the judgment rendered by the learned trial Court and submitted that the appellant and other co-accused were related inter-se Their joining hands in the commission of crime in the backdrop of motive was natural; that the presence of the eye witnesses at the crime scene was not unnatural as they both were together and rushed to the spot after receiving the phone call of PW.4; that no serious challenge was thrown to their presence at the spot; that the recovered article was said to be strong corroborative evidence supporting the statements of the eye witnesses.
18. We have carefully gone through the entire evidence thoroughly and considered the submissions made at the bar.
19. From the available record it can be discerned that co-accused of the appellant, namely , Ghulam Mustafa who held the deceased and Muhammad Ram zan, who inflicted "Churri " blows on the hand of the deceased have been acquitted by learned trial Court. It is settled by now that if the eye-witnesses have been disbelieved against some accused persons attributed effective role the same eye-witnesses cannot be believ ed against another accused with the same role unless those eye-witnesses received independent corroboration about the other accused. Reliance, in this context can be placed on 'Ghulam Sikandar and another v. Mamaraz Khan and others " (PLD 1985 SC 11), "Sarfraz alias Sappi and 2 others v. the State " (2000 SCMR 1758 ) and "Akhtar Ali and others v. The. State " (2008 SCMR 6 ).
In this case, no independent corroboration to the ocular account was forthcoming. The place of occurrence was a street/thoroughfare. No independent witness was attracted to the spot. The decea sed himself had gone there on his motorbike.The witnesses claimed to have reached at the spot after having been informed by PW.4 and they claimed to have witnessed the occurrence from the distance of 40/50 feet. The eye-witnesses were closely related the deceased. Muhammad Hanif (PW.5) was real "Chacha " and Muhammad Iqbal (PW.6) was "Phuphizad " of the deceased. Muhammad Hanif PW. was resident of Qasimpur at a distance of 7/8 kilometer from the place of occurrence whereas Muhammad Iqbal was permanent resident of Jatoi, Muza ffargarh and also admitted his residence in Sharjah 4/5 months prior to the occurrence. They reached to the spot after having been informed by PW.4. The appellant alongwith his co-accused managed their escape after enacting the episode. The PWs could not move forward to rescue the deceased as they were threatened by the accused. The eye-witnesses shifted the deceased from the place of occurrence to the main road on auto rickshaw and then accompanied him to hospital.
They stayed with the deceased in the hospital the whole night. The witnesses raised no hue and cry. Their statements were at variance on some aspects. Muhammad Hanif PW stated that his statement was recorded by the Investigation Officer at the crime scene whereas Muhammad Iqbal deposed that he was examined under Section 161 Cr.P.C. in the hospital on the same day. There was soling in the street and the Investigation Officer admitted during the investigation that he took the blood stained earth into possession after the death of the deceased, thus, the same cannot determined the place of occurrence. The deceased was sitting on a motorbike, when received injury at the hands of the appellant and then fell down on the ground after the second blow inflicted by the acquitted co-accused, namely , Muhammad Ramzan, described by PW.6, whereas, the first injury was inflicted by Muhammad Ramzan followed by the injury attributed to the appellant mentioned by Muhammad Iqbal PW. The dimension of injury No.4 suggests that the deceased bled profusely , also admitted by the eyewitnesses but the motorbike of the deceased was not taken into possession during the investigation.
20. The complainant was not the eye-witness. He reported the incident to police on 26.12.2008 at 01:00 p.m. The eye-witnesses neither could justify their presence at the crime scene nor had witnessed the occurrence in view of their statements available on record.
21. The motive behind the occurrence was that the complainant denied the hand of his daughter to the appellant about five years ago but the witnesses have admitted during the cross-examination that, the deceased had gone to the accused to collect certain photographs meaning thereby that he was on visiting terms with accused and had there been some strained relations between the _ parties he could not have-gone there to collect the photographs, thus, the motive also comes to the ground.
22. So far as the medical evidence is concerned, suffice it to observe that medica l evidence may confirm the seat of injuries, nature of injures and kind of weapon used in the occurrence but would not connect the accused with the commission of crime It is strange to obse rve that the deceased sustained injury on 26.12.2008 at 11:00 a.m. and was shifted to hospital by the PWs on the same day. at 12:00 (noon). The Illaqa police reached there at 12:30 (noon). Thereafter , the incident was reported and the F.I.R. was registered against the accused person. The Medical Officer appealed as PW.1 and described that he examined the deceased then injured,, on 01.01.2009 at 03:00 p.m. and that the deceased was already admitted in hospital in I.C.U. Ward, Bed No.3. He further described that he medically examined the deceased by the order of the Illaqa Magistrate. He observed two injuries on the neck and over left hand/forearm of the deceased, and both the injuries were kept under observation for Ward report never received by the officer till the time of his examination at trial, thus, he mentioned no dimension of the injuries or the weapon used in this case. He also has not provided the duration of the injuries sustained by the deceased.
Dr. Fayyaz Khan Durrani appeared as PW.3. he conducted postmortem of the deceased on 02.01.2009 at 11:00 am. and observed five injuries on the body of the deceased Injury No.4 was declar ed fatal. The case of death was excessive bleeding and stasis of blood in both lungs. In his statement PW.1 further admitted that Medico Legal Certificate has not issued by him as a police case, thus, the sustaining of injuries at the hands of the accused, then shifting of the deceased to hospital and the medical examination of the deceased not as a police case is a mystery , which has not been explained by the prosecution through some convincing material/evidence. The peculiar feature of this case that no document whatsoever showing admission of the deceased in hospital, his stay in ICU Ward and then his examination under the order of the Magistrate itself is a circumstance which is sufficient to raise an eyebrow .
23. It is axiomatic principle of law that benefit of doubt is always extended in favour of the accused. The case of the prosecution if found to be doubtful then every doubt even slightest is to be resolved in favour of the accused. In this case prosecution miserably failed to prove the case against the appellant beyond reasonable doubt. Reliance in this context can be placed on "Muhammad Mansha v. The State " (2018 SCMR 772) and relevant observations of their lordships appearing in para-4 at page No. 778 can advantageously be reproduced hereunder: "4. Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilty of the accused, than the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, it is better that ten guilty persons be acquitted rather than one innocent perso n be convicted" Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345 ), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221 ), Muhammad Akram v . The State (2009 SCMR 230 ) and Muhammad Zaman v .The State (2014 SCMR 749 ) "
In another recent judgment titled "Abdul Jabbar v. The State and another " (2019 SCMR 129), their lordships observed: "It is settled principle of law that once single loophole is observed in a case presented by the prosecution much less glaring conflict benefit of such loophole in the prosecution case automatically goes in favour of the accused."
24. For what has been discussed above, Criminal Appeal No.98-J of 2013 is allowed. The conviction and sentence of the appellant recorded by the learned trial Court vide impugned judgment dated 18.07.2012 is set aside. The appellant is acquitted of the charge. He is in jail and be released forthwith if not required in any other criminal case.
25. For the same reasons, Criminal Appeal No.643 of 2012 against acquittal of respondent Nos.2 and 3 is DISMISSED .
26. Murder Reference No.13 of 2016 is answered in the NEGA TIVE and sentence of death awarded to the appellant by the learned trial Court is NOT CONFIRMED .