SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Faisal Imtiaz son of Muhammad Imtiaz, caste Khawaja, resident of House No.909, Street No.2, Dairy Hasa nabad, District Rawalpindi (Crl. Appeal No.961/20I5) and Qurat-ul-Ain widow of Muhammad Hanif, caste Gond al, resident of 231-F , Punjab Society , Ghazi Road, Lahore (Crl. Appeal No.944/2015), appellants along with Amir Imtiaz (since acquitted) were involved in case FIR No.1378/2010, dated 30.09.2010, initially registered under section 460, P.P.C., with Police Station Factory Area, Lahore. Subsequently provisions of offence under sections 302, 411, 380, 34, P.P.C., were added. They were tried by learned Additional Sessions Judge, Lahore, under the aforementioned offences. The learned trial court after completion of trial, vide judgment dated 1 1.05.2015 convicted and sentenced the appellants in the following terms: - Sr.# Name of the appellantConviction and sentence 1 Faisal Imtiaz Under section 302(b)/34, P .P.C., sentenced to death as Ta'zir for the murder of Muhammad Hanif deceased with direction to pay Rs.10,00,000/- as compensation to legal heirs of the deceased in terms of section 544- A, Cr .P.C. and in case of default in payment thereof to undergo S.I. one year .
2 Qurat-ul-Ain Under section 302(b)/34, P .P.C., sentenced to death as Ta'zir for the murder of Muhammad Hanif deceased with direction to pay Rs.10,00,000/- as compensation to legal heirs of the deceased in terms of Section 544- A, C..P .C. and in case of default in payment thereof to undergo S.I. one year .
2. Being aggrieved by the judgment of learned trial court, Faisa Imtiaz, appellant has assailed his conviction and sentence through filing Crl. Appeal No.961/2015 while Qurat-ul-Ain, appellant filed Crl. Appeal No.944/2015.
Learned trial court forwarded Murder Reference No.282/2015 for confirmation of sentence of death inflicted upon the convicts in terms of section 374, Cr.P.C. The complainant also filed Crl. Revision No.1031/2015 seeking enhancement in compensation amount to be paid by the convicts/respondents. As all the matters are arising out of one and the same judgment of the learne d trial court, therefore, these are being disposed off through consolidated judgment.
3. Prosecution story as portrayed in the FIR (Exh.PH) lodged on the written application (Exh.PG) of Zulfikar Ali Gondal son of Muhammad Ismaeel, caste Jatt, resident of House No.147, Street No.2, Javed Colony , Ghazi Road, Lahore (PW-10) is that the complainant is an Advocate. On 30.09.2010 at 5:00 a.m. Qurat-ul-Ain, bhabi of the complainant informed him on phone that during the course of dacoity in their house, her husband Muhammad Hanif was fired at by the assailants, who had died. Soon the complainant reached at 231-F, Punjab Cooperative Housing Society and saw that his brother had been murdered while currency ' amounting to Rs.1,00,000/- and five tolas golden ornaments were also missing. Bhabi of the complainant further informed him that she along with her kids was sleeping in another room while Muhammad Hanif was sleeping separately . On hearing the reports of fire shots when she went to the room of her husband, two young boys wearing pent-shirts 5' 1/2" height, aged about 25/26 years were fleeing away from the house. On receipt of information regarding the occurrence, Ghulam Nabi, S.I.
(PW-6) reached the place of occurrence where the complainant presented his written application. After endorsing police karvai the same was transmitted to Police Station for registration of formal FIR.
4. After registration of the case, investigation was entrusted to Abdul Ghafoor , S.I. (PW-15) who along with other police officials visited the place of occurrence. After inspecting dead body , he prepared inquest report (Exh.PW), drafted injury statement (Exh.PY), handed down application for postmortem examination (Exh.PX) and dispatched the dead body to mortuary under the escort of Muhammad Hanif 7492/C (PW-3). Subsequently the complainant through supplementary statement (Exh.PP); nominated Qurat-ul-Ain and Faisal Imtiaz, accused. From the spot, Investigating Officer collected one crime empty (P-6) and one bullet (P-7) which were taken into possession vide recovery memo Exh.PL. The Investigating Officer further took into possession one used syringe (P-8) vide recovery memo Exh.PM Mobile phone of the deceased (P-5) was secured vide recovery memo Exh.PK while piece of bed sheet (P-4) was taken into possession vide recovery memo Exh.PJ. He also prepared rough site plan of the place of occurrence (Exh.PZ). After postmortem examination last worn clothes of the deceased shalwar (P-13) and shirt (P-14) were produced before the Invest igating Officer, which were taken into possession vide recovery memo Exh.PC. On the direction of Investigating Officer and pointing out of the PWs, on 02.10.2010, Syed Younas Ali Bukhari, Draftsman (PW-2) took rough notes of the place of occurrence and thereafter prepared scaled site plan (Exh.PB and Exh.PB/1), which was made part of the file. On 21.10.2010, Investigating Officer arrested the appellants and from Faisal Imtiaz appella nt he recovered mobile phone (P-11) vide recovery memo Exh.PN and from Qurat-ul-Ain, appellant mobile phone (P-12) was recovered vide recove ry memo Exh.PO. Thereafter Investigating Officer obtained their physical remand. On 26.10.2010, Faisal Imtiaz appellant led to the recovery of currency amounting to Rs.1,00,000/- which was secured vide recovery memo Exh.PE. On 28.10.2010, Faisal Imtiaz appellant after making disclosure led to the recovery of pistol (P-9) along with one live bullet (P-10), which the Investigating Officer took into possession vide recovery memo Exh.PEE. On 29.10.2010, Investigating Officer produced Qurat-ul-Ain, appellant before Kunwar Anwaar Ali Khan, Special Judicial Magistrate (PW-1) where her statement under section 164, Cr.P.C. was recorded. During the course of interrogation on 03.11.2010, Faisal Imtiaz, appellant got recovered two gold bangles (P-3/1-2) which were taken into possession vide recovery memo Exh.PF .
5. After completion of investigation, having found the appellants guilty Investigating Officer prepared report under section 173,Cr .P.C. while placing their names in column No.3, which was sent to the court of Session en-routed through the Illaqa Magistrate as provided under section 190(2), Cr.P.C. The learned trial court vide order dated 13.06.201 1 formally charge sheeted the appellants to which they pleaded not guilty and claimed trial. Prosecution in order to substantiate its case produced as many as fifteen (15) prosecution witnesses while Junaid Ullah Khan appeared as CW -1.
6. Zulfikar Ali (PW-10) is complainant of the case while Ibrar Hussain (PW- I 2) is eye-witness of the occurrence.
Abdul Latif (PW-5) is witness of waj-takkar . On presentation of complaint, Muha mmad Afzaal, S.I. (PW-7) had chalked out formal FIR while Syed Younas Bukhari, Draftsman (PW-2) had prepared scaled site plan of the place of occurrence. Statement of Qurat-ul-Ain, appellant under section 164, Cr.P.C. was recorded by Kunwar Anwaar Ali Khan, Special Judicial Magistrate (PW-1). Investigation in this case was conducted by Abdul Ghafoor , S.I. (PW- 15).
On 01.10.2010, Dr. Riasat Ali (PW- 13) had conducted postmortem examination over the dead body of Muhammad Hanif, deceased and observed following injuries on his person: "1-A An open gapping lacerated wound 1 cm x 1 cm in size oval in shape with collar of abrasion around more prominent on the inferior angle of wound and inverted margins on the front of left side of abdomen, 11 cm left to the interior midline and 18 cm vertically blow left nipple (firearm entry wound).
1-B. An open gapping lacerated wound 1 cm x 0.7 cm, slit like with the everted margin on the back of left chest, 4 cm left to the posterior midline and 7 cm below nape of neck firearm exit wound)."
After conducting postmortem examination, doctor rendered the following opinion:- "All injuries mentioned above were ante mortem in nature and caused by firearm, the cause of death in this case was damage to the diaphragm omentum left lung, heart and fracture of fourth rib under injury Nos. 1-A, 1-B, led to haemorrhage shock and death. This injury was sufficient to cause death in an ordinary course of nature. Probable time that elapsed No.1 between injury and death immediately and between death and postmortem 24 to 30 hours."
Statements of rest of the prosecution witnesses are formal in nature.
7.The appellants were examined under section 342, Cr.P.C.; wherein they refuted the allegations levelled against them in the prosecution evidence. They did not opt to appear as their own witne sses in terms of section 340(2), Cr.P.C., however , they opted to lead defence evidence .
8. In defence, Ansar Ali, Azhar Iqbal, Shaukat Ali, Salman Areeb Khan and Muham mad Ramzan, ASI, made their statements as DW -1, DW -2, DW -3, DW -4 and DW -5 respectively .
9. After hearing the arguments advanced by learned counsel appearing on behalf of both the parties, learned trial court, while evaluating the evidence available on record found version of the prosecution proved beyond shadow of reasonable doubt against the appellants resulting into their conviction in the above stated terms.
10. At the very outset learned counsel for the appellants contended that the impugned judgment has been passed by the learned trial court in a slipshod manner without adverting to real facts of the case and in derogation to the material available on iecord. Learned counsel vigorously argued that initially the FIR was lodged against unknown accused persons under the provisions of section 460, P.P.C. Subsequently through supplementary statement (Exh.PP) although the appellants were named, however , no specific role was assigned to them. It was next argued that statement of the complainant is based on hearsay while Abdul Latif (PW-5) is resident of 1 k.m. away from the place of occurrence. As far as Ibrar Hussain (PW-12) is concerned, learned counsel contended that although he claims to have witnessed the occurrence and had allegedly chased the accused, however , he was not cited as a witness in the crime report. Learned counsel contended that even story with regard to recording of supplementary statement on the same day also does not appeal to reason. As far as statement of Qurat-ulAin appellant recorded under section 164, Cr.P.C. is concerned; it was argued that the same does not carry any legal sanctity as it was recorded when she was under custody with the Investigating Officer on physical remand. It was argued that medical evidence does not corroborate the prosecution case stricto sensu . Further argued that recovery of pistol is planted upon Faisal Imtiaz appellant. Learned counsel contended that even through another supplementary statement dated 27.10.2010 Aamer Imtiaz, Farhat Bibi and Shoala Imtiaz were named as accused; however , whole file is silent about their fate. Learned counsel finally argued that keeping in view all the facts and circumstances brought forth on record, prosecution has miserably failed to establish link of the appellants with the occurrence, hence, conviction and sentence recorded by the learned trial court is not sustainable in the eyes of law .
11. On the other hand learned Deputy Prosecutor General assisted by learned counsel for the complainant vehemently opposed the contentions raised by learned counsel for the appellants. It was argued that although the appellants were not named in the crime report, however , they were subsequently brought in through supplementary statement. Learned counsel for the complainant contended that while appearing in the witness-box Abdul Latif (PW-5) and Ibrar Hussain (PW-12) fully substantiated the prosecution case on minute details. They are truthful witnesses and their statements straightway ring true and appeal to reason. Further argued that although they were subjected to lengthy cross-examination, however , nothing adverse to the prosecut ion version could be brought on record. Learned Law Officer contended that medical evidence also corroborates the prosecution case. Further submitted that even Qurat-ul-Ain, appellant had recorded her statement under section 164, Cr.P.C. before the learned Magistrate wherein she admitted the occurrence while explaining its motive. It was argued that during the course of investigation pistol was recove red from Faisal Imtiaz appellant and report of Punjab Forensic Science Agency is positive. Moreover , having been found guilty names of both the appellants were placed in column No.3 of the report prepared under section 173, Cr.P.C. Lastly it was argued that the prosecution established its case through straight forward, reliable and confidence inspiring evidence, therefore, the learned trial court rightly convicted and sentenced the appellants under the relevant provisions of law .
12. As far as Crl. Revision No:1031/2015 is concerned, learned counsel for the petitioner/complainant stated that keeping in view the peculiar facts of the case, amount of compensation is liable to be enhanced.
13. We have heard the arguments advanced from both sides and perused the record with the able assistance of learned counsel for the appellants, learned counsel for the complainant, as well as, learned Deputy Prosecutor General.
14. It is cordial principle of law that each criminal case has its own peculiar facts and circumstances. It seldom coincide with each other A hence cannot be evaluated/weighed on judicial parlance with similarity . There is no second cavil to this proposition that it is very unfortunate occurrence in which real brother of the complainant was done to death without his fault early in the morning when he was sleeping in his house as a result of which three minor kids were made orphans to face the miseries of this world without the patronage of their father . Though the probative value of highhandedness can be gauged from the act of the assailants, however , it cannot disclose the identity of culprits.
There is no denial to this fact that primarily the instant case was lodged against unknown accused persons under the provisions of section 460, P.P.C. Record available on file reflects that subsequently through supplementary statement, both the appellants were brought in this case. As far as sanctity of the supplementary statement is concerned, the same is always seen with suspicion until and unless it is corroborated/ supported by independent facts and circumstances floating on the record. In this particular case it is claim of the prosecution that soon after reaching the Investigating Officer at the place of occurrence, supplementary statement (Exh.PP) was made by the complainant, who is stated to be an, Advo cate/practicing lawyer and real brother of the deceased; wherein both the appellants were arrayed as accused persons. According to statement of the complainant made during the course of trial as PW-10, investigation in this case was started at 6:20 a.m. while he made his supplementary statement at 6:30 a.m. Relevant extract out Of his statement is reproduced as under:- "The investigation started at 6:20 a.m. The police inspected the place of occurrence. When the police was inspecting the place of occurrence, other PWs Ibrar, Ali Rehman and Abdul Latif also reached there. I filed other application at about 6:30 a.m. after reaching the PWs, who told me."
If this aspect is taken into consideration, names of the above PWs must have been incorporated as witnesses to the proceedings of the inquest report etc. However , perusal of record available on file reflects that their names were not incorporated as witnesses to these proceedings. The version of the Investigating Officer Abdul Ghafoor , S.I.
(PW-15) is that when they were transporting the dead body to mortuary at about 8:30 a.m., the above prosecution witnesses appeared before him along with the complainant and at that time he recorded supplementary statement (Exh.PP). As far as veracity/truthfulness/fairness of the supplementary statement (Exh.PP) is concerned, the same straightway requires its close scrutiny by us with regard to its promptness. Perusal of Exh.PP reflects that both Faisal Imtiaz and Qurat-ul-Ain appellants were duly named therein as culprits of the occurrence. So much so it was disclosed that Ibrar Hussain (PW-12), who was allegedly tenant in the house along with his brother All Rehman (not produced) had seen the minute details of the occurrence and he also chased the assailants when they were fleeing away from the scene of occurrence. If this aspect is taken into consideration, notwithstanding the fact that name of Qurat-ulAin, appellant was duly mentioned in the crime report as a culprit and she remained present in the house till funerals on next day, she was neither associated into investigation to dig up actual facts of the case nor arrested by the Investigating Officer. The statement of Investigating Officer reflects that on the asking of the complainant, he did not arrest Qurat-ul-Ain accused. Relevant extract out of his statement is reproduced as under:- "I asked from the complainant about the arrest of Qurat-ul-Ain from the house but the complainant requested that the guests are present in the house so the arrest of Qurat-ul-Ain may kindly be delayed."
The above portion of statement made by the Investigating Officer straightway does not sound sense that a culprit of the murder of her spouse will not be associated in the process of investigation only due to presence of the guests on the asking of complainant, who subsequently slipped away and was arrested after 21 days. Even otherwise this fact does not find mention in the statement of the complainant. If all these circumstances are taken into consideration and evaluated, it becomes crystal clear that the prosecution version with regard to promptness/ fairness of the supplementary statement is tainted one and the same was lodged subsequently after due deliberations and consultations.
15. According to prosecution version Ibrar Hussain (PW-12) is witness of the occular account while Abdul Latif (PW-5) is the witness of waj-takkar . As far as Ibrar Hussain (PW-12) is concerned, he claims to be tenant in the baithak of the house of the deceased. According to his claim he along with his brother Ali Rehman (not produced) woke up early in the morning on the morning to say their Fajjar prayers and they had minutely witnessed both the appellants while talking to each other and subsequently on the asking of Qurat-ul-Ain appellant, Faisal Imtiaz, appellant made fire shot on the deceased and he was facilitated by his co-accused in fleeing away from the scene of occurrence. If this aspect of the prosec ution version is taken as correct, PW-12 along with his brother were most natural/independent witnesses of the occurrence. However , they were not cited as witnesses in the FIR despite the fact that they were tenant in the house and their master was murdered by the assailants in their presence. So much so they were not joined into proceedings qua preparation of inquest report etc rather it has come on record that when the dead body was being evacuated to mortuary , they joined the proceedings. This fact straightway hits the prosecution case.
As far as Abdul Latif (PW-5) is concerned, according to his statement when he was going to offer his Fajjar prayers in the nearby mosque, he saw Faisal Imtiaz, appellant holding pistol while fleeing away from the scene of occurrence. Admittedly the occurrence had taken place at the time of Fajjar prayers; however , it has come on record that PW-5 is resident of Javed Colony and two Masjids: one Masjid Sughra and the other Masj id Taqwa are situated at a distance of half KM from his house while Punjab Society is at a distance of 1-KM from his house. It has also come on record that on the way to the house of the deceased no Masjid was situated which fact was admitted by Ibrar Hussain (PW-5) at the time of making his statement during the course of trial. Relevant extract out of statement of PW -5 is reproduced as under:- "There is no mosque on the way which I had adopted to reach the house of deceased."
All these facts when evaluated conjointly create serious dents about the presence of PW-5 at the place of occurrence as claimed by him.
16. Next piece of evidence available with the prosecution is the confessional statement made by Qurat-ul-Ain appellant (Exh. PA) under the provisions of section 164, Cr.P.C. which was recorded by Kunwar Anwaar Ali Khan, Special Judicial Magistrate (PW-1). There is no denial to this fact that in her statement, Qurat-ul-Ain, appellant allegedly conceded the commission of offence thereby narrating that fire shot upon the person of deceased was made by her co-accused Faisal Imtiaz (appellant). However , perusal of record available on file reflects that Qurat- ul-Ain appellant was taken into custody on 21.10.2019 while her statement under section 164, Cr.P.C. was recorded on 29.10.2010 when she had already remained with the Investigating Officer on physical remand for a period of eight days. Recording of confessional statement with such a delay when its maker remains in police custody for such a long period straightway casts doubt about its voluntariness. Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the case of Khan Muhammad and another v. The State (1981 SCMR 597 ); wherein it was held as under:- "Confession of appellant having been recorded after a delay of about one month, highly suspicious and appearing to have been extracted in unfair manner ... "
Similar view was af firmed in the case of Khalid Javed and another v . The State (2003 SCMR 1419 ).
Another important aspect of the case is that according to contents of Exh.P A, Qurat-ul-Ain appellant was cross- examined by Faisal Imtiaz, co-accused. The superior courts of the country have held that statement of an accused under section 164, Cr.P.C. should not be recorded in the presence of other accused. This principle was laid down in the case of Dhani Bakhsh v . The State (PLD 7975 Supreme Court 187 ); wherein it was held as under:- "In the instant case, however we find that the mode and method of recording the confession of one accused in the presence of the other casts serious doubt on its voluntariness which is the basic requirement of law as also for its appeal to the' judicial conscience."
If this aspect is taken into consideration how cross-examination by an accused on the statement under section 164, Cr.P.C. made by other accused can be extended legal sanctity . In this backdrop statement made by Qurat-ul-Ain appellant under section 164, Cr .P.C. being devoid of legal credence is hereby brushed aside/set at naught.
17. As far as medical evidence is concer ned, as no specific role was attributed either at the time of lodging crime report or in the supplementary statement, therefore, the same is of least importance.
18. As far recovery of pistol (P-9) from Faisal Imtiaz, appellant affected during the course of investigation and report of the Punjab Forensic Science Agency (Exh.PV and Exh.PV/1) in this regard, which admittedly is positive is concerned, suffice it to say that the recov ery 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 Jamil 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."
19. Another important aspect of the case is that through supplementary statement dated 27.10.2010, Aamer Imtiaz, Farhat Bibi and Shoala Imtiaz were also arrayed as culprits, however , whole file is silent qua the fate of Farhat Bibi and Shoala Imtiaz, accused. Moreover , on the same set of evidence Aamer Imtiaz, co-accused, was acquitted of the charge by the learned trial court and though appeal against his acquittal was filed, however , the same was subsequently withdrawn.
20. From the facts and circumstances narrated above, we are persuaded to hold that the prosecution has failed to advance any cogent and confidence inspiring to establish link of the appellants with the occurrence. In such like situations it becomes incumbent upon the Court to extend the benefit of doubt in favour of the accused.
Furthermore, to extend the benefit of doubt so many circumstances are not required rather one circumstance which creates reasonable doubt in the veracity of the prosecution version is sufficient for the purpose, not as a matter of grace rather as a matter of right. Respe ctful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the case of Tariq Pervez v. The. State (1995 SCMR 1345 ); wherein following principle was laid down:- "---Art. 4---Benefit of doubt, 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."
Similarly in the case titled Arif Hussain and another v. The State (1983 SCMR 428), the august Supreme Court of Pakistan had further held as under:- "---S. 302---Murder ---Evidence---Benefit of doubt---Prosecution case not free from doubt---Charges not brought home to accused in manner required under law---Accused given benefit of doubt and acquitted".
Similar view was af firmed in the case of Muhammad Akram v . The State (2009 SCMR 230 ).
Moreover , it is golden principle of law that the Court ought to let off 100 guilty but should not convict one innocent person on the basis of suspicion. Resultantly Crl. Appeal No.961/2015 filed by Faisal Imtiaz, appellant and CrL Appeal No.944/2015 filed by Qurat-ul-Ain, appellant are accepted in toto as a consequence whereof conviction and sentence recorded in the judgment dated 11.05.2015 is set aside. Both the appellants are ordered to be acquitted of the charge and directed to be released forthwith, if not required in any other case.
21. Murder Reference No.282/2015 forwarded by the learned trial court in terms of section 374, Cr.P.C. for confirmation of death sentence inflicted upon the convicts is answered in negative . Death sentence is not confirmed .
22. As far as Crl. Revision No. 1031/2015 seeking enhancement in compensation amount is concerned, for the afore-stated reasons the same is devoid of legal justification, which is accordingly dismissed .