ANW AARUL HAQ PANNUN, J. Iftikhar Ahmad son of Noor Muhammad, (2) Akhtar Abbas son of Shams-ul-Haq, both Kharl by Caste, residents of Chah Ajmalwala, Mauza Kariwala, Tehsil and District Jhang, the appellants along with (i) Gulzar Ahmad, (ii) Wajid Ali (iii) Muhammad Hanif and (iv) Muhammad Fazil (since acquitted) and (v)
Muhammad Waris and (vi) Muhammad Asif (since P.Os) were involved in case FIR No.312/2012, dated 14.08.2012, offence under Sections 302, 324, 148, 149, P.P.C., registered with Police Station Qadirpur , District Jhang. The local police carried out investigation in which Akhtar Abbas (condemned prisoner), Wajid Ali and Muhammad Hanif (both since acquitted), accused were found innocent and their names were placed in column No.2 of the report under section 173, Cr.P.C. The challan of the case was submitted before the court of competent jurisdiction, however , subsequently Nase er Ahmad complainant being dissatisfied with the aforesaid investigation preferred to file a private complaint titled as:- "Nazeer Ahmad versus Iftikhar Ahmad, etc." under Sections 302, 324, 148, 149, P.P.C. in which the trial has been held. After recording of evidence and taking into consideration the material available on record, learned trial court vide judgment dated 28.06.2016 has convicted/sentenced the appellants in the following terms:- Sr.# Name of the appellant Conviction/sentence
(1) Iftikhar Ahmad Under Section 302(b), P .P.C., sentenced to death as Ta'zir with direction to pay Rs. 1,00,000/- as compensation to legal heirs of the deceased Ghulam Farid in terms of Section 544-A, Cr .P.C. and in case of default in payment thereof, to undergo S.I. for six months.
(2) Akhtar Abbas Under Section 302(b) P .P.C., sentenced to death as Ta'zir with direction to pay Rs. 1,00,000/- as compensation to legal heirs of the deceased Qasim Ali in terms of Section 544-A, Cr .P.C. and in case of default in payment thereof, to further undergo S.I. for six months.
2. Feeling aggrieved by the judgment of the learned trial court, the appellants have jointly assailed their conviction and sentence by filing Crl. Appeal No.1612 of 2016 while learned trial court forwarded Murder Reference No.348 of 2016 for confirmation or otherwise of sentence of death inflicted upon both the appellants/convicts in terms of Section 374, Cr.P.C. As both the matters are arising out of one and the same judgment of the learned trial court, therefore, both are being disposed of through consolidated judgment.
3. As stated above, firstly the crime report (Exh.CW -1/1) was lodged on the complaint (Exh.PE) of Nazir Ahmad, a Zamindar by profession alleging that during the intervening night of 13/14 08.2012 at about 1.00 O'clock night he along with Khalil Ahmad, Qasim Ali, Ghulam Farid and Muhammad Nawaz were sleeping in the courtyard of house, having no boundary walls, of his uncle Ghulam Farid, the electric bulb was on in the courtyard, on the foot-falls of some persons, suddenly they woke up and saw, in the light of bulb, that accused persons armed with firearms came. Accused (1) Iftikhar Ahmad made fire shot with his 12 bore gun hitting uncle of the complainant on his head whose brain matter came out of his head, accused (2) Waris made fire shot hitting Ghulam Farid, uncle of the, complainant on his left thigh. The complainant along with his companions ran away in order to save their lives whereupon all the accused followed Qasim Ali (deceased). When Qasim Ali reached at the road near the Dera of Bashir Ahmad Gujjar , the accused persons caught hold Qasim Ali and fall him on ground . All the accused gave beating to him with butts. Accused Akhtar Ali with torn his 'Qameez', strangulated him with said 'Qameez' whereas rest of the accused caught hold his arms and legs tightly . They witnessed the occurrence with their own eyes, however , could not step forward due to fear the accused by committing murder of Qasim Ali, and by throwing him went towards Mauza Ramana.
Motive behind the occurrence as disclosed in the crime report is that accused Iftikhar has previous enmity with Qasim Ali deceased. Due to this grudge, all the accused committed this occurrence. They took care of Qasim Ali who succumbed to the injuries. They left Nawaz near the dead body of Qasim Ali. The complainant and Khalil Ahmad went to the house of Ghulam Farid and brought him to DHQ Hospital, Jhang , in an injured condition. The doctors due to his precarious condition referred him to Allied Hospital, Faisalabad. Further alleged that all the accused in prosecution of their common object/intention injured uncle of the complainant namely Ghulam Farid and committed murder of his cousin namely Qasim Ali.
4. The investigation was encapsulated into a report under section 173, Cr.P.C., which was duly submitted, the learned trial Judge took the cognizance, supplied the requisite statements under section 265(c), Cr.P.C., framed the charge against the appellants and their co-accused on 24.03.2015 to which they pleaded not guilty and claimed trial.
5. We feel it appropriate, at the cost of a little repetition, let "the bare facts of the case, in brief, be enumerated as under:-- Two persons namely Ghulam Farid and Qasim Ali had been murdered in this occu rrence, under discussion, out of them one Ghulam Farid died as a result of fire-arm injuries on his body whereas the other Qasim Ali (deceased) was strangulated, when he had been reduced, helpless while catching hold of him from different parts of his body by the acquitted co-accused near the Dera of Bashir Ahmad Gujjar . The occurrence, allegedly , took place in the darkness, during intervening night at 1.00 AM on 13/14.08.2012. It was reported on 14.08.2012, at 7.30 AM, through a complaint (Exh.PE), followed by post-mortem examination over the dead of deceased Qasim Ali by Dr. Muhammad Rehan, M.O., (PW.7) on 14.08.2012 at 5.30 PM, who had stated that "the time between injury and death was immediate and between death and postmortem was about 10/12 hours ". He noticed six injuries i.e. multiple contusions on the dead body . The other deceased namely Ghulam Farid though was allegedly shifted to hospital but surprisingly there is no MLC, available on record to show he had even been attended to medically in between 14.8.2012 till his mortem report i.e. 22.08.2012. Dr. Asif Nawaz, M.O. (PW-1) while conducting post mortem, observed two firearm injuries on the dead body . Ocular account in this case consists of the evidence of Nazir Ahmad, complainant (PW-3) who is uncle of Ghulam Farid deceased and Muhammad Nawaz (PW-4). He is the cousin of complainant. Rest of the eye-witness has been given up. Since he has been declared innocent during investigation, therefore, no recovery has been effected on the pointing out of appellant Akhtar Abbas. The recovery of .12 bore gun from appellant Iftikhar Ahmad was made on 09.11.2012 vide recove ry memo. (Exh. PH). The crime empties (P-7) which had already been taken into possession vide recovery memo . (Exh.CW -8/3) was followed by its corresponding report (Exh.PO) issued by the Punjab Forensic Science Agency , in positive. Motive behind the occurrence has been alleged a previous enmity inter se between the parties. Interrogation of the case was carried out by Mushtaq Ahmad, S.I (CW-8), Amanullah, SI (CW-9), and Muhammad Ishfaq Anjum, SI (CW-10). Rest of the evidence is of formal in nature.
6. Learned counsel for the complainant on instructions of the complainant gave up Khalil Ahmad since deceased and Shabbar Abbas being unnecessary vide his statement dated 03.05.2016 and closed the prosecution evidence.
7. The appellants were examined under Section 342, Cr.P.C. wherein they gainsaid the charge and professed their innocence. They opted neither to appear as their own witness in terms of Section 340(2), Cr.P.C. nor they opted to adduce evidence in their defence. While replying to the question why this case against him and why the PWs deposed against him, the appellant Iftikhar Ahmad made the following deposition:- "All the PW's are related inter se and have deposed against me due to enmity . In fact, I have developed illicit relation with Mst. Halima Bibi mother of PW Khalil (since dead). We were found together and were caught by Khalil PW (since deceased) who fired at me, injured me and he also cut my ear. Khalil PW (since dead) forcibly abducted my sister and raped with her and a case was registered against him. Qasim Ali (since deceased) committed murder of Halima Bibi and a case of murder of his mother/wife of Ghulam Farid (since deceased) was registered against Qasim (since deceased). Relation between Ghulam Farid and Qasim deceased became very strained and Ghulam Farid (since deceased) deserted Qasim Ali (since deceased) from his house. Qasim Ali (since deceased) was of the view that illicit relation of Mst. Halima Bibi his mother with me was the result of free hand given to the Halima Bibi by Ghulam Farid. It was talk of the village and surrounding areas that it was Qasim Ali (since deceased) who killed at his father Ghulam. Farid and hidden himself in the Jantar crop. Ghulam Farid (since deceased) was sleeping at his house and no male member was present on the fateful night. The complainant party had been tracing out Qasim (since deceased) and on the next morning at about 8.00 a.m. he was found sitting in the Jantar and was done to death by Khalil PW (since dead). The complainant party has killed two birds with one stone. They have saved Khalil PW from legal punishment and have involved me and my co-accused due to previous grudge because they were of the view that all three murders of Halima Bibi, Ghulam Farid and Qasim were the result of my illicit relations with Mst. Halima Bibi. It is very pertinent to submit that it was Khali l PW (since deceased) who had caused fire-arm injuries to me, had cut my ear and had also dishonoured my sister . If he was present at the time of occurrence and had witnessed the occurrence, I should have killed him instead of Ghulam Farid. Another important fact fortifies my submission that it is the story of prosecution during trial that Ghulam Farid father of Khalil PW (since deceased) was shifted to DHQ Hospital Mang. Khalil PW did not bother to accompany his father to Hospital which shows that talk of village is correct. I am innocent. I have no animosity with Qasim and Ghulam Farid (since deceased). I may be acquitted from the false charges leveled against me".
Appellant Akhtar Abbas in reply to the same question has made the following deposition:- "All the PW's are related inter se and have deposed against me due to enmity . In fact, the occurrence had taken place as narrated by my accused Iftikhar in my presence and I endorsed the answer of Iftikhar accused".
8. Learned trial court after evaluating the evidence available on record, found version of the prosecution proved beyond shadow of reasonable doubt against the appellants, which resulted into their conviction in the afore-stated terms whereas their co-accused namely Gulzar , Muhammad Fazil, Wajid Ali and Muhammad Hanif have been acquitted.
9. Learned counsel for the appellants submits that Akhtar Abbas appellant was declared innocent during the course of investigation, no recovery has been effected on his pointing out; that co-accused namely Gulzar , Muhammad Fazil, Wajid Ali and Muhammad Hanif who allegedly participated with their effective role in the occurrence along with the appellant Akhtar Abbas have since been acquitted while disbelieving, prosecution evidence, therefore, his conviction in absence of no other independent corroboration on record cannot be maintained. So far as case or the appellant Iftikhar Ahmad is concerned , learned counsel contends that occurre nce took place during intervening night of 13/14.8.2012, at 1.00 a.m., post mortem of the deceased Ghulam Farid was conducted on 22.8.2012.
During, the above interregnum where did the said deceased remained in an injured condition, is a mystery . No Medico Legal Certificate has been brought on record. The unexplained delay in lodging the FIR has also been highlighted by learned counsel by adding that all the circumstances of the case appears to be a mystery . Learned counsel for the appellants submitted that complainant Nazir Ahmad (PW-3) while appearing in the witness box has not given any explanation for "his presence" at the time of occurrence which took place during night hours, likewise he has referred to the statement of Muha mmad Nawaz (PW-4) who is also not the resident of the house i.e. the place of occurrence as he during his cross-examination has admitted that he lives in a different and separate house, situated two acres away from the place of occurrence, therefore, presence of this PW-4 at the relevant time at the place of occurrence also appears to be highly doubtful; that the prosecution has failed to prove the case against the appellants; that recovery effected from appellant Iftikhar is immaterial and has thus craved for acquittal of the appellants by way of acceptance of appeal.
10. On the other hand, learned Law Officer though while defending, the impugned judgment has opposed the contentions of learned counsel for the appellants yet he could not advance plausible explanation as to where, Ghulam Farid (deceased) remained after receipt of injuries till his death. He has not been able to defend that after disbelieving prosecution evidence qua acquitted co-accused namely Gulzar , Muhammad Fazil. Wajid Ali and Muhammad Hanif, how the same evide nce can be relied upon for maintaining conviction of the appellants, particularly , when appellant Akhtar Abbas was also declared innocent during the course of investigation.
11. Arguments heard. Record perused.
12. It is trite a law that, in a case of, direct evidence/ocular account, it is the bounden duty of prosecution to establish the presence of PWs, at the place of occurrence so that their deposition may be believed. Judging the evidence of PW-3 Nazir Ahmad compla inant and PW-4 Muhammad Nawaz, who have furnished the ocular account, through the prism of above cardinal principle criminal dispensation of justice, we are of the view that the presence of the PWs, at the place of occurrence is doubtful, for more than one reasons viz: i) Delay in lodging the FIR. ii) unnatural demeanour and conduct of the PWs. iii) non-advancing of any of the reasons for presence of the PWs at the spot.
Nazir Ahmad complainant (PW-3) while facing test of cross-examination has stated that that "we did not try to inform rescue 15 or rescue 1122 through cell phone". In cross-examination he further deposed that "during the days of occurrence, sun rises at 5/5.30 a.m. Police reached at the place of occurre nce at 8/8.30 a.m. I got drafted the application for registration of the case from a person who was present there. His name was Allah Ditta. Allah Ditta is not PW of this case". The occurrence took place at 1.00 AM night, the FIR was lodged at 7.30 AM at the spot through Exh.PE. During this period, it appears some guess work continued for nominating the accused. During cross-examination PW-3 has further stated that "I have not stated any reasons for staying at the house of Ghulam Farid deceased". He further deposed that "house of Muhammad Nawaz PW is situated at the distance of 02 acre from the house of Ghulam Farid deceased and not two square as suggested". He further deposed that "when we awoke up, the accused were present at the distance of 2/3 acre from us. When we started running the first place of occurrence, accused did not fire on us. The place of murder of Qasim since deceased is at the distance of 7/8 acre from the first place of occurrence and not one kilometer as suggested. We did not raise hue and cry to seek help from the surrounding 'abadi' while running, toward south-east. We did not run from the place of occurrence to save our life. The PWs volunteered that the accused were running behind Qasim deceased and we were chasing the accused. When we started chasing, the accused neither stopped us for chasing them nor made any fire on them.
The house of Nawaz PW is toward north of first place of occurrence. The 8/10 houses of mall tribe situated on the western side or first place of occurrence".
PW-4 Muhammad Nawaz in his cross-e xamination has stated that "the compla inant is my cousin". He further deposed in cross-examination that "my statement was recorded by the I.O. under section 161, Cr.P.C. I got recorded in my statement under section 161, Cr.P.C. that Nazeer Ahmad was also present in the house of Ghulam Farid. Confronted with Exh.DA wherein it is not so recorded. I got recorded the names of Gulzar Ahmad, Wajid Ali, Muhammad Hanif, Muhammad Asif and Fazil accused in my statement under section 161, Cr.P.C. Confronted with Exh.DA wherein these names are not recorded". He further deposed in his cross-examination that "I got recorded in my statement under section 161, Cr.P.C. that Nazeer complainant was also with us when we ran to save our lives. Distance between the accused and us was about 8/10 karam. Confronted with Exh.DA wherein name of Nazeer is not mentioned. I have not stated in my examination in chief that all the accused after falling of Qasim gave him butt blows". He further stated in his examination in chief that "we are three brothers. We all the brothers live in separate houses. PW volunteered but we live in the some killa adjacent to each other . House of Nazeer is situated near our house", Adjudging evide nce of PW-3 and PW-4 who have furnished ocular account, it is observed that Nazir Ahmad complainant (PW-3) though claimed to have seen the occurrence in the light of electric bulb, which was lit at the time of occurrence but during the course of investigation, no bulb had even been taken into possession by the Investigating Officer. This fact has been admitted by PW-3 in his statement while facing test of cross-examination in the following words:- "I have not shown the electric meter to the police at the time of inspection of place of occurrence. 1.0. did not take into possession the electric bulb".
Keeping in view the time of occurrence, the non-production of any of the source of light, it is safely concluded that due to darkness, the identity of the accused appears to be doubtful. Respectful reliance is placed upon case titled Haroon Shafique v. The State and others (2018 SCMR 2118). Even in the second part of occurrence, in which Qasim All (deceased) has been done to death, through strangulation, taken place outside village (in complete darkness), near the Dera of one Bashir Ahmad Gujjar . The behavior of the deceased as well as the PWs, as stated, appears to be very strange. Feeling danger at the hands of the accused not only the deceased but also the PWs, instead of rushing towards populated area for seeking some shelter/asylum had started running/going out of the village, which is against the common sense. No accused fired at them when the PWs were chasing them. As per prosecution, firstly the acquitted co-accused had caught hold of Qasim Ali (deceased) reducing him helpless, then the appellant Akhtar strangulated him with his torn 'qameez' which compels us to hold that without the alleged assistance/help of the acquitted co-accused apparently it was not possible for the appellant Akhtar single handedly to strangulate Qasim (deceased). The learned trial court while disbelieving evidence of the prosecution has acquitted the co-accused, which had also caused serious repercussion upon the veracity of the evidence of PWs.
Applying the principle of falsus in uno, falsus in omnibus , the same evidence is liable to be disbelieved once again.
It is reiterated that occurrence has taken place in the darkness of night, claim of the PWs having seen the occurrence by chasing/running after the accused who were following the deceased appears to be preposterous and unbelievable, therefore, the same is accordingly disbelieved.
13. So far as recovery is concerned, the ocular account regarding the main occurrence has since been disbelieved by us, therefore, recovery alone is of no consequences. Moreover , recovery of .12 bore gun has been effected from the house of one Bashir Ahmad and not from a place, exclusively in possession of the accused, hence the same is of no use. Even otherwise, the recovery is deemed to be corroborative in nature and it is used for support of direct evidence and as per dictates of justice whenever direct evidence is disbelieved it would not be safe to maintain conviction on confirmatory evidence. In the case of Muhammad famil v. Muhammad Akram and others (2009 SCMR 120 ) the august Supreme Court of Pakistan had held as under:- "----S.302(b)---Appreciation of evidence---Principle---In a case of direct evidence other pieces of evidence are used for corroboration or in support of direct evidence---When direct evidence is disbelieved, then it would not be safe to base conviction on corroborative or confirmatory evidence."
14. As far as motive is concerned, it is double edged weapon which can cut either way. It is the prosecution's own case that there exists enmity between appellant Iftikhar Ahmad only, the complainant has opted to involve as may as six other persons besides appellants, in the FIR when, there exists no earthly reasons for sharing of their intention with the alleged principal accused.
15. Fact also remains that in the crime report besides the appellants, Gulzar Ahmad, Wajid Ali, Muhammad Hanif, Muhammad Faazal, Muhammad Waris, Muhammad Asif were also arrayed as accu sed out of them Gulzar Ahmad, Wajid Ali, Muhammad Hanif, Muhammad Faazal, were acquitted of the charge on the same set of evidence. It is settled principle of law that if evidence of the prosecution is disbelieved qua bulk of accused it cannot be believed qua the other in the absence of very strong corroboration, which is squarely missing in the case in hand.
Respectful reliance in this regard is placed on the ratio decidendi of august Suprem e Court of Pakistan in the cases of Akhtar Ali and others v. The State (PLJ 2008 SC 269), Shera alias Sher Muhammad's case (1999 SCMR 697) and Sher Bahadur's case (1972 SCMR 651 ).
16. All the above narrated facts and circumstances when evaluated on judicial parlance reflect that the prosecution has failed to establish culpability a the appellants in the instant case through reliable, trustworthy and confidence inspiring evidence. It is established principle of law that for extending the benefit of doubt in favour of the accused, so many circumstances are not required, rather one circumstance which creates reasonable dent in the veracity of the prosecution version, can be taken into consideration for the purpose, not as a matter of grace, rather as a matter of right. Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the cases of "Tariq Pervez v. The State" (1995 SCMR 1345 ) "Riaz Masih alias Mithoo v. The State "
(1995 SCMR 1730 ) and"Muhammad Akram v. The State (2009 SCMR 230). In the case of "" (1995 SCMR 1345 ), the august Supreme Court of Pakistan has held as under:- "----Art.4---Benefit of doubt, Tariq Pervez v. The State grant of---For giving benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubts---If a simple circumstance creates reasonable doubt in a prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right".
17. From the facts and circumstances narrated above, we are persuaded to hold that conviction passed by the learned trial Court against the appellants in the circumstances is against all canons of law recognized for the safe dispensation of criminal justice. As per dictates of law benefit of every doubt is to be extended in favour of the accused. Moreover , it is golden principle of law that the Court may err in letting off 100 guilty but should not convict one innocent person on the basis of suspicion. Resultantly while setting aside the conviction and sentence recorded by the learned trial court vide impugned judgment dated 28.06.2016, Crl. Appeal No.1612 of 2016 filed jointly by both the appellants is allowed as a consequence whereof they are ordered to be acquitted of the charge framed against them by extending them the benefit of doubt. They are in jail, directed to be released in this case forthwith if not required in any other case.
18. Murder Reference No.348 of 2016 is answered in negative . Death sentence is not confirmed .