SHEHRAM SARWAR CH., J.---Masood Ahmad, Abdul Ghafoor alias Kala and Inam ul Haq (appellants) were tried by the learned Addl. Sessions Judge, Sarai Alamgir in case FIR No.306/2008, dated 11.07.2008, offence under sections 302 and 392, P.P.C. read with section 34, P.P.C., registered at Police Station Sadder Sarai Alamgir District-Gujrat for the murder of Muhammad Amin (deceased) and committing robbery. Vide judgment dated 05.05.2010 passed by the learned Addl. Sessions Judge, Sarai Alamgir, the appellants have been convicted under Sections 302(b) and 392, P.P.C. read with Section 34, P.P.C. and sentenced as under:- "18. For what has been discussed above, I hold that the accused are guilty of committing the qatl-i-amd of Mohammad Amin deceased with their common intention punishable under section 302(b)/34, P.P.C., as well as of S. 392/34, P.P.C. having committed robbery on the high way. Consequently, accused Masood Ahmad, Abdul Ghaffoor alias Kala and Inam Ul Haq are hereby convicted under section 302(b)/34, P.P.C. and sentenced to death, who be hanged from their necks till they are dead. This sentence of death is subject to confirmation by the Honourable Lahore High Court, Lahore. They are also directed to pay compensation amount to the tune of Rs.1,00,000/- each payable to the legal heirs of the deceased as required under section 544-A, Cr.P.C. recoverable as land revenue. The above named convicts are also convicted under section 392/34, P.P.C. and sentences to under go R.I. for '10 years along with fine amount to the tune of Rs.15,000/- in default of the payment of which each one of them shall further undergo S.I. for six months. Benefit of section 382-B, Cr.P.C. is awarded to the accused."
Assailing the above convictions and sentences, Masood Ahmed, Abdul Ghafoor alias Kala and Inam ul Haq (appellants) have filed the above titled separate criminal appeals whereas Abdul Qayyum complainant has filed Crl. Revision No.1015 of 2012 for enhancement of the amount of compensation imposed upon Masood Ahmed, Abdul Ghafoor alias Kala and Inam ul Haq respondents Nos.2 to 4 under sections 302/34, P.P.C. and for enhancement of fine amount under sections 392/34, P.P.C. The learned trial Court has sent Murder Reference No.354 of 2010 for confirmation cr otherwise of the sentence of death awarded to Masood Ahmed, Abdul Ghafoor alias Kala and Inam ul Haq (appellants), as required under section 374, Code of Criminal Procedure.
As all these matters have arisen out of the same judgment, therefore, shall be decided together through this single judgment.
2. Precisely, facts of the case, as contained in FIR (Exh.PJ/1) registered on the statement of Abdul Qayyum complainant (PW.11) are that he (complainant) was resident of mouza Shah Ghora and engaged in the work of shuttering. On the night of occurrence i.e. 11.07.2008 at about 8:30 p.m. complainant along with Muhammad Amin (deceased) and Wajid Hussain .(PW.10), while riding on a motorcycle, was returning from mouza Thall.
When they reached near Peeran Da Thilla, in the area of Aima Shah Jee, three unknown persons (who could be identified on confrontation), out of whom one was wearing trousers, having wheatish colour, aged about 27/28 years, second wearing trousers having blackish colour aged about 30/32 years and third wearing trousers, aged about 26/27 years, all armed with pistols 30 bore stopped them forcibly and took them aside. They snatched mobile phone Nokia No.0343-5426377 and cash Rs.200/- (rupees two hundred only) from the complainant, mobile phone Nokia No.0345-5673987 along with Rs.5000/- (rupees five thousand only) from Muhammad Amin, who asked for the return of documents, over which all the three assailants made straight fires with their respective pistols upon him which landed on the neck at left side as well as chest of Muhammad Amin. The complainant's side made hue and cry whereupon the assailants ran away and while fleeing, pistol of one of the assailants, fell on the spot. The complainant along with others were taking Muhammad Amin to hospital but on the way, he succumbed to the injuries.
3. The appellants were summoned by the learned Additional Sessions Judge, Sarai Alamgir to face the trial.
Copies of the documents, as required under Section 265-C, Code of Criminal Procedure, were provided to them and formal charge under Sections 302 and 392, P.P.C. read with section 34, P.P.C. was framed against them on 10.06.2009, to which they pleaded not guilty and claimed trial. In order to prove its case, prosecution examined as many as thirteen witnesses in all. Ocular account was furnished by Wajid Hussain (PW.10) and Abdul Qayyum, complainant (PW.11). Medical evidence was furnished by Dr. Nasir Mumtaz (PW.8). Gulzar Hussain No.1910/C (PW.5) witnessed the alleged recovery of churri (P.4) effected at the instance of Abdul Ghafoor (appellant). Muhammad Iqbal No.368/C (PW.6) and Sultan Ahmad, AS1 (PW.7) witnessed the alleged recovery of .30 bore pistol (P.5) effected at the instance of Masood Ahmad (appellant). Liaqat Ali S.I. (PW.12) and Muhammad Akram S. I (PW.13) investigated this case and while appearing in the witness box, narrated various steps taken by them during the course of investigation. Rest of the witnesses are formal in nature. Statements of the appellants were recorded under section 342, Code of Criminal Procedure on 20.04.2010, wherein they refuted all the prosecution allegations levelled against them. To a question as to why the case against him and why the prosecution witnesses had deposed against him, Inam ul Haq (appellant) replied as under:-- "I am innocent. During local bodies elections hot words were exchanged between the complainant and we the accused. The deceased was murdered by some unknown persons in a deserted place and complainant having grudge against me and my co-accused has falsely implicated in this case in order to wreak his vengeance."
Same was the standpoint of Masood Ahmad and Abdul Ghafoor alias Kala (appellants) in their statements recorded under section 342, Code of Criminal Procedure. The appellants did not appear as their own witnesses in disproof of the allegations levelled against them as provided under section 340(2), Code of Criminal Procedure nor did they produce any evidence in their defence.
4. After conclusion of the trial, the learned trial court convicted and sentenced the appellants as detailed above.
Hence, these appeals, revision petition and murder reference.
5. Learned counsel for the appellants, in support of these appeals, contend that the appellants are not nominated in the FIR; that it was a blind murder; that this incident allegedly took place on 11.07.2008 whereas the appellants were implicated in this case through the supplementary statement (Exh.DA) of the complainant recorded on 25.08.2008 i.e. forty five days after the incident; that no source of information as to how the complainant came to know about the names of the appellants is mentioned in the supplementary statement (EXh.DA); that no identification parade was conducted in this case; that there are material contradictions in the statements of witnesses of ocular account namely Wajid Hussain (PW.10) and Abdul Qayyum complainant (PW.11); that in the FIR (Exh.P.J/1) as well as before the learned trial court, it was the case of Wajid Hussain, complainant (PW.11) that all the assailants were armed with pistols whereas Wajid Hussain (PW.10) while appearing before the learned trial court stated in his examination-in-chief that at the time of incident Abdul Ghafoor (appellant) was armed with dagger whereas during the course of investigation, a churri (P.4) was recovered at the instance of Abdul Ghafoor (appellant); that in the FIR (Exh.PJ/1), it was case of the prosecution that on the demand of Muhammad Amin (deceased) for the return of documents, the appellants made fires with 30 bore pistols upon Muhammad Amin (deceased) but Wajid Ali (PW. 10) while appearing before the learned trial court stated in his examination-in-chief that the appellants directed them to put off their clothes whereupon Muhammad Amin stood up and refused to do so and upon his refusal, the appellants made firing upon him, whereas, Abdul Qayyum, complainant (PW.11) stated in his examination-in-chief that the appellants asked Amin to remove his cloths who refused to do so, over which the appellants started firing upon him; that Abdul Qayyum complainant (PW.11) stated in his examination-in-chief that Masood Ahmad grappled with him due to which his pistol fell on the ground but it was not stated so in the FIR as well as in the statement of Wajid Hussain (PW.10) before the learned trial court; that no specific injury is attributed to either of the appellants; that the medical evidence is a supporting piece of evidence and relevant only if the primary evidence i.e. ocular account inspires confidence which is not the situation in this case; that nothing was recovered at the instance of Inam-ul-Haq (appellant) during the course of investigation. So far as alleged recovery of churri (P.4) at the instance of Abdul Ghafoor (appellant) is concerned, his learned counsel contends that the said recovery is not helpful for the prosecution because in the FIR (Exh.PJ/1) as well as before they learned trial Court, it was not the case of Abdul Qayyum complainant (PW.11) that at the time of alleged incident, Abdul Ghafoor (appellant) was armed with churri; that the churn (P.4) was allegedly recovered from Abdul Ghafoor (appellant) on 24.09.2008 i.e. about seventy four days after the incident. So far as alleged recovery of pistol (P.5) at the instance of the Masood Ahmad (appellant) is concerned, his learned counsel contends that the said recovery is inconsequential because of the reason that the same was not sent to the office of Forensic Science Laboratory for comparison with the crime empties allegedly effected at the spot and moreover, the said pistol was allegedly recovered from Masood Ahmed (appellant) on 13.09.2015 i.e. about sixty three days after the incident. Learned counsel for Masood Ahmad (appellant) further contends that Abdul Qayyum, complainant (PW.11) has stated in his examination-in-chief that during the incident, Masood Ahmad (appellant) grappled with him due to which the pistol carrying by the said appellant fell on the ground and if the pistol allegedly carrying by Masood Ahmad (appellant) was fallen on the place of occurrence and the same was taken into possession by the police vide recovery memo (Exh.PF), then it can safely be concluded that the pistol (P.5) allegedly recovered at the instance of Masud Ahmad (appellant) was not used during the incident; that it was also the case of prosecution in the FIR as well as before the learned trial court that the appellants also snatched cash amount and mobile phones from Muhammad Amin (deceased) and Abdul Qayyum, complainant (PW. 11) but neither any cash amount nor mobile phones were recovered from the appellants during the course of investigation; that from all angles the case of prosecution is doubtful in nature and the appellants are entitled to acquittal.
6. Despite repeated calls, none has entered appearance on behalf of the complainant. Therefore, we are proceeding with the matter after hearing the arguments of learned Deputy District Public Prosecutor for the State.
7. Learned Deputy Prosecutor General vehemently opposes these appeals. on the grounds that though the names of the appellants are not mentioned in the FIR but this sole circumstance goes a long way to establish bona fide of the complainant because had there been any maliceor on the part of the complainant, the appellants could have straightway been nominated in the FIR; that this incident took place on 11.07.2008 at 8:30 p.m. and the matter was reported to the police at 9:30 p.m. i.e. just after one hour of its happening despite the fact that the distance between the place of occurrence and the Police Station is nine miles and even the postmortem examination on the dead-body of Muhammad Amin (deceased) was conducted on 12.07.2008 at 3:00 a.m. i.e. just six hours after the incident; that both the witnesses of ocular account i.e. Wajid Hussain (PW.10) and Abdul Qayyum, complainant (PW.11) were closely related to Muhammad Amin (deceased) and on the night of incident, they all were returning from Mouza. Thall on a motorcycle, therefore, the presence of both these witnesses at the place of occurrence at the relevant time cannot be considered unnatural or improbable; that both the eye-witnesses namely Wajid Hussain (PW.10) and Abdul Qayyum complainant (PW.11) had no enmity against the appellants for their false implication in this case; that the ocular account is fully supported by medical evidence and corroborated by the recoveries of churri (P4) and pistol (P.5) at the instance of Abdul Ghafoor and Masud Ahmad (appellants) respectively; that the prosecution has proved its case against the appellants beyond any shadow of doubt and there is no merit in these appeals; that the appellants committed the cold blooded murder of Muhammad Amin and also committed robbery with the complainant party, therefore, they do not deserve any leniency even in the quantum of sentence.
8. In support of Crl. Revision No.1015 of 2012, learned DDPP contends that the compensation amount of Rs.1,00,000/- (rupees one lakh only) each awarded by the learned trial court payable to the legal heirs of the deceased does not commensurate with the loss suffered by them, therefore, the amount of compensation may be enhanced adequately and moreover the amount of fine under Section 392/34, P.P.C. may also be enhanced to the maximum.
9. We have heard learned counsel for the appellants as well as the learned Deputy Prosecutor General for the State at a considerable length and have also gone through the record with their able assistance.
10. This unfortunate incident, wherein Muhammad Amin (deceased) was done to death, as per FIR (Exh.PJ/1), allegedly took place in the area of Aima Shah Jee within the jurisdiction of Police Station Saddar Sarai Alamgir, District Gujrat on 11.07.2008 at about 8:30 p.m. and the crime was reported to the Police on the same night at 9:30 p.m.
11. In the FIR (Exh.RI/1), which was registered on the basis of statement (Exh.P.1),. admittedly none is named as accused. Masood Ahmed, Abdul Ghafoor alias Kala and Inam-ul-Haq. (appellants) were nominated through the supplementary statement (Exh.DA) of the complainant 'recorded on 25.08.2008 i.e. about forty five days after the incident. In the supplementary statement, the complainant stated as under:- "He was resident of mouza Shah Ghora and complainant of case FIR No.306/2008, dated 11.07.2008, offence under Sections 302 and 392, P.P.C., registered at Police Station Sarai Alamgir. At the time of incident, three unknown persons had committed the crime with them and complainant's side had been searching for the accused on their own. Masood Ahmad, Abdul Ghafoor alias Kala and Inam ul Haq,.assailants had committed the crime with them; therefore, requested for nomination of the appellants in the FIR and for their arrest."
No source of information as to how the complainant came to know about the names of the appellants is mentioned in the supplementary statement. The explanation offered by the witnesses of ocular account namely Wajid Hussain (PW.10) and Abdul Qayyum, complainant (PW.11) for source of information about the involvement of the appellants in this case during their cross examination does not appeal to a prudent mind because if the complainant's' side was familiar with the faces of the appellants, who were residing in village Moja, adjacent to the village of the complainant's party, then why they did not straightway nominate them in the FIR or soon after the registration of the FIR. Moreover the complainant (PW.11) as well as the other witness of ocular account namely Wajid Hussain (PW.10) have not disclosed the names of the persons who told them about the names of the appellants. Furthermore, there are material contradictions in the statements of witnesses of ocular account namely Wajid Hussain (PW.I0) and Abdul Qayyum complainant (PW.11). In the FIR (Exh.PJ/1 ) as well as before the learned trial court, it was the stance of Wajid Hussain complainant (PW.11) that all the assailants were armed with pistols whereas Wajid Hussain (PW.10) while appearing before the learned trial court stated in his examination in chief that at the time of incident, Abdul Ghafoor (appellant) was armed with dagger whereas during the course of investigation, a churn (P.4) was recovered at the instance of Abdul Ghafoor (appellant). In the FIR (Exh.P.J/1), it was the case of the prosecution that on the demand for the return of documents, the appellants made firing upon Muhammad Amin (deceased). Wajid Ali (PW. 10) stated in his examination-in-chief that the appellants directed them to take off their clothes whereupon Muhammad Amin stood up and refused to do so, whereas the complainant (PW.11) stated in his examination-in-chief that the appellants asked Amin to remove his cloths, who refused over which the appellants started firing upon him.
Abdul Qayyum, complainant (PW.11) stated in his examination-in-chief that Masood Ahmad grappled with him due to which his pistol fell on the ground but it was not stated so in the FIR as well as by Wajid Ali (PW. 10) while appearing before the learned trial court. Therefore, testimony of both the witnesses of ocular account does not inspire confidence.
12. So far as presence of Abdul Qayyum, complainant (PW.11) and Wajid Hussain (PW.10) at the place of occurrence is concerned, both these witnesses claimed that at the time of incident, they along with Muhammad Amin were returning from mouza Thall while riding on a motorcycle. They were stopped by the appellants, who snatched cash and mobile phones from the complainant as well as Muhammad Amin (deceased). It is astonishing to note that the appellants did not snatch anything from Wajid Hussain (PW.10) during the incident.
Moreover, both these witnesses did not receive even a scratch during the incident. Therefore, presence of both these witnesses at the place of occurrence at the relevant time becomes doubtful.
14(sic) As far as 'medical evidence is concerned, the same may confirm the ocular account with regard to the receipt of injury, locale of injury, kind of weapon used for causing the injury, duration between the injury and the death but it would not tell the name of the assailants. Reliance is placed on "Ata Muhammad and another v. The State" (1995 SCMR 599).
15. So far as alleged recovery of churri (P.4) at the instance of Abdul Ghafoor (appellant) is concerned, the same is inconsequential because in the FIR (Exh.P.J/1) as well as before the learned trial court, it was not the case of Abdul Qayyum, complainant (PW.11) that at the time of incident Abdul Ghafoor (appellant) was armed with churri. Moreover the said churri was not used during the incident and the same was allegedly recovered at the instance of Abdul Ghafoor (appellant) on 24.09.2008 i.e. about seventy four days after the incident. As far as alleged recovery of pistol (P.5) at the instance of the Masood Ahmed (appellant) is concerned, the same is also not much helpful for the prosecution because of the reason that the said pistol was not sent to the office of Forensic Science Laboratory for comparison with the crime empties allegedly recovered from the spot.
Moreover the said pistol was allegedly recovered at the instance of Masood Ahmed (appellant) on.13.09.2008 i.e. about sixty three days after the incident. It is astonishing to note that Abdul Qayyum, complainant (PW.11) has stated in his examination-in-chief that during the incident Masood Ahmad (appellant) grappled with him due to which the pistol carried by the said appellant fell on the ground. If the pistol allegedly carried by Masood Ahmad (appellant) had fallen at the place of occurrence at the time of incident then how it is possible that pistol (P.5) was recovered from Masood Ahmed (appellant) after more than two months of the incident and was used during the incident.
16. In the FIR as well as before the learned trial Court, it was case of the prosecution that the appellants snatched cash Rs.200/- (rupees two hundred only) and Nokia mobile phone from Abdul Qayyum complainant (PW.10) and cash Rs.5000/- (rupees five thousand only) and Nokia mobile phone from Muhammad Amin (deceased) but during the course of investigation, neither any cash amount nor mobile phones were recovered at the instance of the appellants.
17. Considering all the circumstances discussed above, we are of the considered view that the prosecution has failed to connect the appellants with the commission of alleged crime. In "Ayub Masih v. The State" (PLD 2002 SC 1048), at page 1056 the Hon'ble apex Court has been pleased to observe as under:- "...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 as of right. 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 doubt of course must be reasonable and not imaginary or artificial. 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. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". In simple words it means that utmost care should be taken by the Court in convicting an accused. It was held in The State v. Mushtaq Ahmad (PLD 1973 SC 418) that this rule is antithesis of haphazard approach or reaching a fitful decision in a case. It will not be out of place to mention here that this rule occupies a pivotal place in the Islamic Law and is enforced rigorously in view of the saying of the Holy Prophet (p.b.u.h) that the "mistake of Qazi (Judge) in releasing a criminal .is better than his mistake in punishing an innocent."
18. For the foregoing reasons, Criminal Appeal No.1196/2010, filed by Abdul Ghafoor, appellant, Crl. Appeal No.1325 of 2010, filed by Masood Ahmad, appellant and Crl. Appeal No.1214 of 2010 filed by Inam ul Haq, appellant are allowed, convictions and sentences awarded to the appellants vide judgment dated 05.05.2010 passed by the learned Additional Sessions Judge, Sarai Alamgir are set aside and the appellants are acquitted of the charges while extending them benefit of doubt. Masood Ahmad, Abdul Ghafoor alias Kala and Inam-ul- Haq (appellants) are in jail. They shall be released forthwith if not required to be detained in any other case.
19. Since we have acquitted Masood. Ahmad, Abdul Ghafoor alias Kala and Inam ul Haq, respondents Nos.2 to 4 of the charges framed against them, therefore, there is no force in Crl. Revision No.1015 of 2012 and the same is dismissed in limine.
20. Murder Reference No.354 of 2010 is answered in the NEGATIVE and the sentence of death awarded to Masood Ahmad, Abdul Ghafoor alias Kala and Inam ul Haq (convicts) is NOT CONFIRMED.