Anwaarul Haq Pannun, J. Through the titled appeal u/s 410 Cr.P.C., the appellant Qaiser Nadeem has challenged the vires of judgment dated 19.06.2015 passed by learned Addl. Sessions Judge, Jalalpur Pirwala, on the conclusion of trial, in case FIR No.285/2011, for offence under Sections 302/337-F(i)/394/411 PPC, registered at Police Station Saddar, Jalalpur Pirwala, whereby he has been convicted and sentenced as under:- Under Section 302(b) PPC Imprisonment for life as Ta'zir with fine of Rs.50,000/- and in case of default, the convict shall further undergo one year S.I. The convict is also liable to pay Rs.200,000/- as compensation to the legal heirs of the deceased under Section 544-A Cr.P.C. and in default whereof, he shall further undergo one year simple imprisonment.
Benefit of Section 382-B Cr .P.C was extended to the convict.
2. The prosecution's story unfolded through FIR (Ex.PA/2) lodged on written complaint (Exh.P A) of Saeed Ahmad (PW-1) is to the effect that during the preceding night of 11.06.201 1, he alongwith Ijaz Ahmad, Mehboob Ahmad alias Boba and Khalil Ahmad, deceased was irrigating his crop through tube-well. At about midnight, two persons bearing features, one tall height, medium body wearing Shalwar Qameez aged about 20 to 25 years old, other medium height and body , curly hair wearing white Shalwar & Qameez were present suspiciously at Pull Vereero Wala near the shop of Iqbal Shah son of Sardar Shah. His brother namely Khalil Ahmad inquired from the accused, the reason for their presence there, whereupon they told that they had come to meet one Ibrahim Langha. Khalil asked them to get themselves connected with Ibrahim through Cell Number 0342-2771476 but in vain. Ijaz PW armed with 44 bore licensed gun, when tried to pupt them under search, the tall heighted person overpowered Ijaz and caught hold his rifle and the other accused, medium height brought out a pistol fastened with his calf and made fire shot which hit on the right side of the belly of Khalil while passing through his body . Khalil fell down, tall heighted person snatched rifle from Ijaz and brought his pistol and made fire shot on Mehboob, causing a grazing wound on his right shoulder . They also injured Ijaz PW with their fists blows. The accused though made firing upon the complainant, who luckily survived. On their hue and cry, his brother Zafar alongwith other people of the locality came over there but the accused fled away while making aerial firing. They immediately tried to shift Khalil to Civil Hospital, Jalalpur Pirwala, but on their way to hospital, he succumbed to his injuries.
3. Registration of the case, after its usual investigation encapsulated into a report under Section 173 Cr.P.C which was duly submitted before the learned trial court, the appellant and his co-accused, after supplying them with the copies of incriminating material under Section 265(c) Cr.P.C, were charged sheeted to which they denied and pleaded not guilty , while professing their innocence and claiming trial, the prosecution was directed to produce evidence.
4. The medical evidence in the case has been furnished by Dr. Shoukat Ali M.O. T.H.Q Jalalpur Pirwala(PW -6). He conducted post-mortem examination on the dead body of the deceased Khalil Ahmad and observed the following injuries:- i. Wound of entry A lacerated fire arm wound measuring 1x1 cm on right side of chest. 11 cm below from right nipples. Blackening present round the margin of the wounds. No tattooing seen. Corresponding tear present on qamiz. ii. Wound of exit A fire arm lacerated wound measuring 2 x 2 cm on left lumber region 10 cm above from posterior superior iliac spine. Margins are everted. No burning blackening or tattooing seen.
Opinion In his opinion, all injuries are ante-mortem in nature. Injury No.1 and 2 are sufficient to cause death in ordinary course of life. Hypovolemia and shock lead to death and injury to vital organs like liver and kidney as well.
Probable time that elapsed Between injury and death----within one hour .
Between death and postmortem within 9-1 1 hours.
Dr. Abdullah Khan, M.O T.HQ Hospital Jalalpur Pirwala (PW-3) conducted medical examination of injured Ejaz Hussain on 15.06.2011 who was brought by Toqeer Nasir 2771-C and noted the following injuries:- i. An abrasion size 2 cm x 1 cm on upper part of left side of back of chest. ii. An abrasion size 4 cm x 6 cm on lower part of back of right chest. iii. An abrasion size 4 cm x 2 cm on front of left knee joint.
Injuries No.1,2 & 3 were declared as Jurh Ghair Jafia Damia and probable duration of injuries was within three to five days.
He also medically examined Mehboob Hussain and found the following injury .
A lacerated wound size 7 cm x 1.5 cm on upper part of right scapular region. Bone not exposed.
The injury No.1 was declared as Jurh Ghair Jafia Matlahima and probable duration of injury was three to five days back.
5. The ocular account in this case has been furnished by Saeed Ahmad, complainant (PW-17) and Ijaz Ahmad (PW-2). Liaquat Ali SI and Muhammad Farooq SI, the investigating officers have appeared as PW-9 and PW-15.
Mohsin Raza, the then Magistrate Ist.Clas s (PW-12) supervised the test identificatio n parade of the accused Qaiser Nadeem and Imtiaz Hussain.
6. The prosecution has produced as many as 15 witnesses beside tendering, in evidence, reports of Chemical Examiner , Lahore and Serologist regarding blood stained earth, Exh.PX & Exh.PZ and photocopy of report of FSL regarding empties as Mark-A.
7. When examined under Section 342 Cr.P.C., the appellant denied every bit of incriminating material so produced.
While replying the question that as to why this case against him and why the prosecution witnesses had deposed against him, he replied as under:- "This occurrence might have been a blind murder conducted by some un-known persons. The complainant party had merely found dead body of Khalil deceased and at that time, they were fully unaware of circumstances and happening of the occurrence as well as culprits, that was why, at the time of registration of case, the complainant gave vague features of the accused persons, so that he may nominate any person in the instant case.
Alleged occurrence was of night time and there was no source of light, in these circumstances, nobody could identify or recognized the real culprits. The deceased might have made an attempt to commit dacoity at Pul Veero Wali and on resistance, he was murdered as he himself was a criminal person. Allegedly, injured PWs do not seem to be present and made injured at the time of occurrence. Both the injured PWs remained reluctant of joining investigation and to get medically examined only a considerable time. It seems that both the alleged injured PWs were not ready to become false witnesses of the instant case. I and my co-accused person were dragged in this criminal case by a suspicion and doubtful manner. Even the prosecution has mala-fide withheld its own evidence of our nomination in the case. The complainant has falsely implicated me and my co-accused person in the instant case on the asking of some political figure. The complainant is a greedy person and want to grab money from me and my co-accused person. He has also offered monitory share to the PWs that was why on the asking of complainant have falsely deposed against me. "
8. The appellant neither opted to appear under section 340(2) Cr .P.C nor has produced any defence evidence.
9. Learned trial court, on conclusion of the trial, proceeded to convict the appellant as aforesaid. Hence, the titled appeal.
10. Arguments heard. Record perused.
11. Before judicious analysis, it will be appropriate to state broadly prosecution' s, the bare facts of the case.
According to the prosecution' s own version, the occurrence took place at midnight (2/2.30 a.m.) on 11.06.201 1 in the fields. No source of light existed in the fields for identification of the accused with exactitude. Saeed Ahmad, complainant (PW-1) reported the matter through rappat No.34 dated 11.6.201 1 at 5.10 a.m. while making his statement (Exh.P A) on the basis of which formal FIR (Exh.P A/2) was registered. The post mortem examination over the dead body of the deceased was conducted at 11.30 a.m. on 11.06.201 1 by Dr. Shoukat Ali M.O THQ Jalalpur Pirwala (PW-6) who noted down the aforesaid two injuries on the person of the deceased and according to his opinion, both injuries (injury No.1 and 2) were sufficient to cause death in ordinary course of nature. According to him, vide post mortem report (Exh.PK), probable time that elapsed between injury and death was within one hour while between death and postmortem was within 09-11 hours. Furthermore, according to prosecution' s own version two persons namely Ijaz Hussain (PW-2) and Khaleel Ahmad(given up PW) had also received injuries at the hand of the accused. But interestingly , the said Ijaz Hussain (PW-2) and Mehboob Hussain have been medically examined by Dr. Abdullah Khan, M.O, THQ Hospital Jalalpur Pirwala (PW-3), after unexplained delay of about 04 days on 15.06.201 1. He observed duration of injuries as 3 to 5 days back. They also got recorded their statements under Section 161 Cr .P.C recorded on 15.06.201 1.
12. The ocular account in this case has been furnished by Saeed Ahmad, complainant (PW-1) and Ijaz Hussain, injured (PW-2). Since the accused were not named in the FIR, therefore, after their arrest on 27.06.2011, they were put to identification parade. It was conducted under the supervision of Mohsin Raza, Magistrate 1 Class(PW-12) on 04.07.2011. From the place of occurrence, the police took into possession blood stained earth through recovery memo (Exh.PB), one empty of pistol 30 bore vide recovery memo (Exh.PC), one empty of pistol 30 bore from a distance of 10 steps and 04 empties from a distance of further 10 steps, vide recovery memo (Exh.PD).
13. The evidence of Saeed Ahmad, complainant (PW-1) has been scanned. During the course of cross- examination, he states that "It is correct that I have narrated in my statement Ex.PA that features of the accused persons were 1-tall height, medium body age 20/25 years, 2 medium height, medium body, curly hair. As it was darkness and due to occurrence I could not identify the accused persons. Again said that there was no darkness and I had identified the accused." He further deposed that "The height of both the accused is almost similar. I cannot say that Qaiser Nadeem accused is 3/4 inch taller than Imtiaz accused. At present hairs of both the accused are not curly but at the time of occurrence hair of one accused were curly."
14. Moreover , Saeed Ahmad, complainant (PW-1) has also made many dishonest improvements while recording his statement in the Court, with his previously recorded statements, which have been duly confronted by defence, which are as under:- "In my statement Ex.P-A I have narrated that accused Imtiaz over powered Ejaz Ahmad and caught hold rifle.
Confronted with Ex.PA wherein it is not so recorded rather there is recorded that on hearing word of search tallst heighted person caught hold Ejaz Ahmad alongwith his rifle. I have narrated in Ex.PA that Qaisar accused brought out pistol from his calf and made fire which hit on the right side of belly of Khalil deceased. Confronted with Ex.PA wherein name of Qaisar accused is not mentioned rather it is mentioned that other person fired upon deceased. I have narrated in Ex.PA that Khalil fell down and Imtiaz accused gave him butt blow with rifle. Confronted with Ex.PA wherein it is not so recorded. I have narrated in Ex.PA that then Imtiaz accused also made fire with his own pistol at Mehboob which left a grazing mark on the right shoulder of Mehboob. Confronted with Ex.PA wherein the name of accused Imtiaz is not mentioned rather according to statement Ex.PA this act is attributed to the tall heighted person. I have narrated in Ex.PA that we call a motor car and brought the deceased Khalil to Civil Hospital, Jalalpur Pirwala wherein the factum of to be called the motorcar is not mentioned."
15. The another eye-witness of the occurrence is Ijaz Hussain (PW-2), who allegedly received injuries during the occurrence. The occurrence in this case taken place on 11.6.201 1, whereas Ijaz Hussain (PW-2) along-with Mehboob Hussain (Given up PW) were medically examined on 15.6.201 1, vide medico legal certificates (Exh.PH and Exh.PI). Liaquat Ali SI (PW-9), who partly investigated the case during the course of cross-examination deposed that "PWs Ijaz and Mehboob did not meet me during my first visit at the place of occurrence. On the same day, I also searched the accused persons in the relevant locality . I could not see said PWs in the locality during my search. On the next day of registration of case, I investigated the case, in the relevant locality but Ijaz and Mehboob PWs were not seen by me. I also did not meet witnesses during investigation of 13 & 14 June, 2011.
Volunteered that witnesses joined the investigation on 15.06.201 1. I visit THQ Hospital, Jalalpur Pirwala where dead body and relatives as well as companions were available but Ijaz and Mehboob PWs were not available there. On 15.06.201 1, when Ijaz and Mehboob PWs joined the investigation at that time what ever I did, I wrote down in the police diary and whatever PWs stated I recorded u/s 161 Cr.P.C. It is correct to suggest that in the statements u/s 161 Cr.P.C of Mehboob and Ijaz PWs, there was no explanation that for a period of four days why they did not join investigation and made their statements." The non-appearance of this PW before the I.O, non- examining him medically and non-recording of statements of the injured PWs, with the Investigating Officer, for four days after the occurrence i.e. till 15.06.201 1, in absence of any explanation casts serious doubt about their presence at the spot. The learned trial Judge also observed in para No.37 of the impugned judgment that:- "As such the allegation of sustaining some bodily injuries by injured PWs at the hands of accused Imtiaz in view of medical evidence has not been proved because it did not corroborate with the ocular account of the PWs against the accused Imtiaz. So, keeping in view afore-going discussion, it could be assumed that charge u/s 337-F(i) PPC for causing injuries on the person of PWs is disproved."
16. Furthermore, Ijaz Hussain(PW -2) while facing the test of cross-examination has made many dishonest improvements which, after duly confronting the PWs with their previously made statements, have been brought on record by the defence. The relevant portion of his statement is as under:- "It was night occurrence. One accused was taller and the other was of short height. I narrated these facts to the police. I narrated to the police that features of one accused were tall heighted, medium body and age 20/25 years.
While the features of second accused were medium height, medium body and curling hair. These features were narrated by me in Ex.DB. At this time both the accused persons are present in the court. I have seen them.
Accused Qaisar is of tall height while accused Imtiaz is of short height. I have seen accused persons present in court. Hair of both the accused are not curly . It was night occurrence."
In view of above, both the aforesaid PWs (PW-1 and PW-2) have made dishonest improvements, therefore, their presence at the spot appears to be highly doubtful.
17. So far as identification of the accused by the PWs during their test Identification Parade is concerned, Saeed Ahmad, complainant (PW-1) stated that about 20/22 days after the occurrence, they received information and went to Central Jail Multan for identification parade and in the jail, he, Zafar , Mehboob and Ijaz identified the accused Imtiaz & Qaiser , in the presence of Illaqa Magistrate. Ijaz Hussain (PW-2) deposed on the same lines as deposed by the complainant (PW-1). During cross- examination, PW-1 deposed that he alongwith Ejaz, Mehboob and Zafar joined identification parade proceedings . They were called by the Judicial Magistrate who asked them as to whether they can identify their accused persons and thereafter their statements were recorded. He has narrated in Ex.DA that Imtiaz accused fired upon Mehboob and gave butt blows to Khalil deceased. Confronted with Ex.DA, wherein it is not so recorded. Ijaz Hussain (PW-2) during cross-examination deposed that he alognwith Saeed, Mehboob and Zafar joined proceedings for identification parade of the present accused persons in the New Central Jail, Multan. During the same proceedings learned Magistrate recorded his statement Ex-DC. He narrated in Ex.PC that Qaiser Nadeem fired upon Khalil whereas Imtiaz accused snatched his rifle. At the time of recording Ex.DC he narrated to the learned Magistrate that Imtiaz accused made fire upon mehboob.
Confronted with Ex.DC wherein it is not so recorded. He also narrated the learned Magistrate that Imtiaz accused hit him with rifle butt blows. Confronted with Ex.DC wherein it is not so recorded.
18. It is trite law that holding of test identification parade was not a mandatory requirement as identification would be essential for establishing the identity of the accused only if there is any doubt in this regard. Reliance in this case be placed on case reported as "Abdul Aziz and others vs. The State " (2019 PCrLJ 12). According to prosecution, the witnesses duly identified the accused persons during the wake of identification parade. In order to rely upon the said identification parade, I am of the opinion that it will be necessary for the prosecution to establish, at the first instance, whether there existed, the circumstances in which a prudent man can recognize the feature of the persons under identification. In this case, the occurrence had taken place during at 2.30 a.m. during the midnight of 11.6.201 1. No source of light has been alleged to be in existent at the time of occurrence, therefore, I hold that it was not humanly possible to give the description of features of the accused persons by the PWs at the time of occurrence, hence, despite the fact that the accused had raised no objectio n over the identification parade, I am not inclined to rely upon the said identification parade because of non-existence of sufficient light, at the place of occurrence for recognizing the featur es, role and face complexions of the accused persons at the time of occurrence, hence, the identification parade is rejected on this score. Reliance in this case be placed on case reported as Kamal Din alias Kamala vs. The State (2018 SCMR 577 ).
19. So far as recovery of weapon of offence i.e. pistol 30 bore is concerned, Muhammad Farooq SI (PW-15) deposed that on 28.07.2011 he interrogated the accused Qaiser Nadeem and Imtiaz Hussain and they one after the other made disclosure in pursuance whereof, Qaiser Nadeem accused got recovered 30 bore pistol along with five bullets from the Chah Verow Wala and same was taken into possession and sealed into parcels vide recovery memo Ex.PE, Pistol (P-4), bullets P4/1-5. He further stated that on the same day and place, Qaiser Nadeem accused got recovered 44 bore rifle P-5 alongwith seven live bullets P-5/1-7 and the same were taken into possession, sealed into parcels vide recovery memo Ex.PF. Saeed Ahmad, complainant (PW-1) deposed that in their presence, accused Qaiser made a disclosure and led to the recovery of pistol 30 bore from the bank of a canal. The pistol was buried under earth. The accused himself while digging earth recovered pistol along-with five live bullets, which I took into possession vide recovery memo Exh.PE. He further deposed that from a distance of 4 steps accused Qaiser also got recovered rifle 44 bore with 7 live cartridges which were taken into possession through recovery memo Exh.PF. Khurshid Ahmad 1520-HC is silent about handing over, of the recovered empties of pistol .30 bore, taken into possession by Liaquat Ali SI (PW-9) vide recovery memos (Exh.PC and Exh.PD) to anyone, for keeping the same in the malkhana for safe custody. Tariq Mehmood 1927/C (PW-13) deposed that he transmitted sealed parcel of pistol .30 bore for its transmission to the Forensic Science Laboratory, Lahore on 06.08.2011. He is also silent about the transmission of crime empties recovered from the spot vide recovery memo (Exh.PC and Exh.PD) to the office of PFSA, Lahore. Furthermore, Mark-A is the photocopy of report of Punjab Forensic Science Agency, Lahore, which is not admissible in evidence under Section 510 Cr.P.C, hence same cannot be relied upon. Reliance in this regard is placed upon the case titled "GHAYOUR ABBAS versus The STATE"(2018 YLR 2494), wherein it is observed that:- "However , the report of the concerned quarter available on file as Exh.PE reflects that it is neither original report nor it is true/certified copy of the report rather it is a duplicate copy, which was issued on 13.01.2017 i.e. four years after the occurrence. Moreover , it does not carry signature of the Bio Chemist or Chemical Examiner and only signatures of one Additional Medical Supe rintendent (Admn), Benazir Bhutto Hospital, Rawalpindi, are affixed on it and underneath his stamp it is mentioned ex-Chemical Examiner. No doubt the report of Chemical Examiner is to be brought on record in terms of Section 510, Cr.P.C. and that could be without summoning its author, however, admittedly it should be in original form and in case its original is not available, then on the basis of very cogent reasons then its certified copy should be presented for consideration by the learned trial court. However, perusal of Exh.PE reflects that neither it is original report nor it qualifies to be a certified/true copy, hence, it cannot be read in evidence against the appellant to connect him with the case. Moreover, there is no provision of law to deviate from the requisite mode of proof of a document. Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in Province of Punjab case reported as 2017 SCMR 172; wherein following principle was laid down:-- "---Chap. V [Arts. 72 to 101]---Document s brought on record---Mode of proof---Pr ovisions governing the mode of proof could not be compounded or dispensed with, nor could the Court, which had to pronounce a judgment, as to the proof or otherwise of the document be precluded to see whether the documents had been proved in accordance with law and could, as such, form basis of a judgment."
When facts of the case in hand are examined on the touchstone of the case law referred to above, we have been persuaded to hold that the report of Chemical Examiner (Exh.PE) in this case is neither a legal document nor it carries any sanction of law, hence the same being vague/invalid document could not be read against the appellant.
Therefore, the learned trial court was not justified in recording conviction against the appellant on the basis of such a indistinct document."
20. As stated above, the recoveries of weapon of offence shown to have been effected from the open plot, taken into possession by the I.O vide recovery memos (Exh.PE & Exh.PG) attested by the PWs, which was accessible to the public-at-large. Such type of pieces of recovery , is nothing, but trash and had failed to render any corroboration to the prosecution' s case. Reliance in this regard is placed upon case titled Muhammad Saleem Vs. Shabbir Ahmad "(2016 SCMR 1605 ) wherein their Lordships have pleased to observe as under:- "We have noticed that the weapon in issue had allegedly been recovered from a place which was open and accessible to all and sundry and, thus, it was unsafe to place reliance upon such recovery ."
21. The nutshell of the above discussion is that the prosecution's case is not free of doubts, benefit of doubt has accrued in favour of the accused as the apex Court has held in case titled "Muhammad Khan and another Vs. State" (PLJ 2000 SC 1041) that it is axiomatic and universal recognized principle of law that conviction must be founded on unimpeachable evidence and certainty of guilt and hence any doubt that arises in prosecution case must be resolved in favour of accused. Moreover it is cardinal principle of criminal jurisprudence that a single instance causing a reasonable doubt in the mind of Court entitles the accused to the benefit of doubt not as a matter of grace but as a matter of right. Reliance is placed on case law reported as "Muhammad Akram versus The State" (2009 SCMR 230) and "Tariq Pervaiz Vs. The State"(1995 SCMR 1345). Consequently, the instant appeal is allowed, the conviction and sentence awarded to the appellant by the learned trial Court, vide impugned judgment dated 19.06.2015 is set aside and the appellant is acquitted of the charge by extending him the benefit of doubt. The appellant is detained in jail, directed to be set at liberty forthwith in this case, if not liable to be detained in any other case.