ABDUL HAMEED RALOCH, J.---This criminal appeal has been directed against the judgment dated 31st December, 2015 (impugned judgment), passed by learned Additional Sessions Dera Allah Yar, (trial court), whereby the appellant was convicted under section 302(b) Pakistan Penal Code and sentenced to death.
2. Succinct facts of the case are that on 15th May, 2015, the complainant Muhammad Ali, lodged FIR No. 10 of 2015, with Police Station Sunhri Panhur, District Jaffarabad, under Sections 302, 34, P.P.C., alleging therein that on the said date after taking dinner the complainant along with his wife, son Abdul Aziz with his wife Laila and sons Zahid Hussain and Sabir Hussain, Atta Muhammad, and daughter Mehtab went to sleep in courtyard of the house. At about 12:30 a.m., the complainant and other family members woke up on hearing fire shot and saw that Ghulam Akbar put hands on the mouth of Laila, while Ghulam Mustafa fired shot gun on Abdul Aziz, whereas Anwar fired shot gun on Atta Muhammad, while Ghulam Rasool was firing with shot gun. It was alleged by the complainant that due to firing his sons Abdul Aziz and Ana, Muhammad became seriously injured and succumbed at the spot. It was further alleged that the accused persons were making lalkara that tonight they will not spare any one.
3. After registration of FIR the investigation of the case was carried out and after formal investigation the challan of the case was submitted before the trial court.
4. At the trial after framing of charge the prosecution in order to substantiate the charge produced as many as nine witnesses. After close of prosecution side the appellant was examined under section 342, Cr.P.C., wherein he denied the allegation of prosecution. The appellant did not opt to record his statement on oath as envisaged under section .340(2), Cr.P.C., however, he produced one defence.
5. On completion of the trial the learned trial court heard arguments and thereafter, convicted the appellant in the terms as mentioned in para-1 supra vide impugned judgment, hence this appeal.
6. Suffice to add here that since the appellant was awarded death sentence, as such the State filed Murder Reference for confirmation of death sentence awarded to the convict Anwar.
7. We have heard the learned counsel for the parties and perused the available record. The prosecution produced nine witnesses in order to substantiate its case. PW-1 produced Ex: P/1-A. It revealed that the complainant along with his family was sleeping in courtyard of their house. At about 12:30 a.m.; the accused duly armed with shotgun entered the house, fired upon Abdul Aziz and Atta Muhammad, due to which they woke up. PW-1, PW-2, PW-3 and PW-4 had assigned specific role to each accused in commission of the offence. After registration of FIR PW-9 proceeded towards the place of incident, prepared site plan Ex: P/9-A, produced identification memo as Ex: P/9-E. On 17th May 2015 the blood stained earth of deceased was taken into possession, produced as Ex: P/9-A and Ex: P/9-B. During investigation on disclosure of appellant prepared disclosure memo as Ex: P/8-A. On pointation of appellant crime weapon was recovered, produced as Ex: P/8-B. The Investigating Officer obtained FSL Report of blood stained earth and crime weapon, empty shell and produced as Ex: P/9-H and Ex: P/9-K.
8. The statement of ocular witnesses established that the accused entered the house of complainant at the time when they were sleeping. They on hearing noise of firing woke up. It means that they did not see when firstly tiring was made, how could specific role was assigned to each other. The testimony of ocular account find no support from Ex: P/7-A and Ex: P/7-B. The Medico Legal Certificates reveal that 'each deceased had sustained one bullet injuries. The allegation was that the accused were armed with shotguns. The MLCs transpire that both the deceased have not sustained pellet injuries. All the eye-witnesses are residing in the same house, but their statements are not in line with each other. The witnesses admitted that the night was dark, while the C Investigating Officer in cross-examination denied that the night was dark. PW-1 and PW-3 further stated that the accused had fired continuously for 10/15 minutes, while PW-3 replied in cross-examination that firing continued for half an hour. On site inspection PW-9 secured only 15 D empty shells despite repeated firing by four accused persons for 10/15 minutes. The statements of the witnesses contradicted each other. We analyzed the testimony of eye-witnesses, found the same contradictory to each other in respect of distance of firing, identification of accused in dark night. From the above it is established that the prosecution evidence is shaky, untrustworthy and not confidence inspiring. Reliance is placed on case law Muhammad Salah v.
State reported in 2018 YLR Note 284.
9. So far as the recovery of empty shells are concerned. Later on the pointation of accused/ appellant recovery of crime weapon was made. The alleged recovery was made from abandoned place from the bushes with delay of more than 12 days. The prosecution dispatched the crime weapon and casing together for forensic analysis after more than one month without any reason.
The prosecution failed to explain where the recovered material was kept and in whose custody. The sending of firearm along with empty shell lost its evidentiary value, as such could not be considered as corroborative evidence. In this regard reliance is Placed on Haroon Shafique v. The State 2018 SCM R 2118.
10. The allegation of prosecution is that the accused came by motorcycle. No motorcycle was recovered. The witnesses admitted that so many people residing near their house, but none of them were cited as witness.Although the witnesses stated that there was no boundary wall in their house. PW-2 stated that his father after registration of FIR at 6:00 a.m.; came along with police personnel, while the record reveals that Ex: PR-A was lodged at 6:05 a.m. The distance is 20 kilometer away from the scene of incident. PW-9 stated that they reached the place of occurrence along with complainant at 7:30 a.m.; while PW-5 narrated that his statement was recorded at 8:00 a.m. These omission, discrepancies cannot be lightly ignored. Another angle of the case has to be considered. The accused were nominated in FIR with parentage and specific role, despite that the identification parade of accused was conducted in supervision of DSP. Memo of identification parade was produced as Ex: P/9-E. It means that the accused was not known to the complainant and other witnesses. If the accused was identified during firing why the identification was conducted. Secondly the identification parade was supervised by DSP, why the Judicial Magistrate was not requested for supervision of the parade. If Ex: P/9-E is considered then the statements of ocular witnesses have to be discarded, as held in case Khalid alias Khalidi v. The State 2012 SCM R 327.
"----We are not inclined to accept the Identification Parade as a corroborative piece of evidence as the features of the accused had not been mentioned by the eye-witnesses in their statements before the police. Even otherwise the Identification Parade loses its veracity when it had been admitted by P. W. 4 Muhammad Gulzar while appearing in the Court that Sultan was previously known to the witnesses and also known to Mst. Jannat Bibi who had not been produced. In such circumstances Identification Parade which had not been relied upon qua the involvement of Sultan Mehmood acquitted accused, the same could not had been relied upon against the present appellants as the witnesses had identified the accused who was previously known to them and it had been disbelieved--"
11. The minute perusal of prosecution case from all angles reveals that the witnesses implicated the accused in order to take revenge which has already admitted by the witnesses. The prosecution witnesses stated that after firing the accused shouted that no one be speared, but did not harm any witness. The witnesses narrated in their statements that they identified the accused in light of the bulb, while in Ex; P/9-B no bulb was shown. The identity of the accused is mysterious on two aspects one from identification and other non-securing the bulb. Reliance is placed on Rashid Khan v. The State 2017 SCM R 564.
12. It has been established that the case of prosecution is highly doubtful and no conviction can be sustained on the basis of such type of shaky and untrustworthy evidence as per settled principle and guidance of honorable Supreme Court and its benefit must go to the accused not as a matter of grace but of right. In the case Muhammad Akram v. The State 2009 SCMR 23, it has been held by the Honorable Supreme Court that: "----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---."
In view of the above discussion, since the prosecution has failed to prove its case against the appellant/accused beyond any shadow of I doubt, therefore, the judgment dated 31st December, 2015 of Additional Sessions Judge, Dera Allah Yar, is set aside and the appellant Anwar son of Muhammad Ibrahim is acquitted of the charge under sections 302(b), 34, P.P.C. by extending benefit of doubt, in case pursuant to FIR No. 10 of 2015, Police Station Sunhri Panhur, District Jaffarabad. He be released at once if not required in any other case. Since the appeal of the appellant against his conviction has been allowed, therefore, the Murder Reference filed by the State for confirmation of death sentence is answered in negative.
These are the reasons of our short order made on 25th September, 2019.