MUHAMMAD TARIQ ABBASI, J.---This judgment shall decide the above captioned Criminal Appeal as well as the Murder Reference, as both are outcome of single judgment dated 15.3.2011, passed by the learned Additional Sessions Judge, Sambrial, District Sialkot, whereby in case FIR No. 301, dated 12.6.2007 , registered under Sections 460/302, P.P.C., at Police Station Sambrial, District Sialkot, Muhammad Asif (hereinafter referred to as the appellant) was convicted and sentenced as under:-- i) Under Section 302(b), P.P.C. -- death, with compensation of Rs.3,00,000/-, payable to legal heirs of the deceased, otherwise to undergo simple imprisonment for six months. ii) Under Section 460, P.P.C. - rigorous imprisonment for ten years.
2. The precise facts, as per the application (Ex.PH), moved by Muhammad Amjad, complainant (PW-5), which resulted into registration of the FIR (Ex.PA), were that during the night between 11/12.6.2007, when the complainant, along with his family members was sleeping at the roof of house, suddenly three unknown accused, armed with firearms, came there and got them awoken; Qaisar Mehmood (hereinafter referred to as the deceased), when obstructed the dacoits, they started abusing him and during scuffle, one dacoit fell down in the crop and the others started firing; a fire shot hit on the abdomen of Qaisar Mehmood and he became seriously injured; in the meanwhile, two dacoits, who were available in the courtyard, while firing, came on the roof and thereafter fled away; Qaisar Mehmood in an injured condition was shifted to Civil Hospital, Sialkot, from where he was referred to Lahore, but succumbed to the injuries. Thereafter, the complainant (PW-5) on 11.7.2007 again moved an application (Ex.P), with the contention that on the said date' at about 10.00 AM, when he along with Ghulam Qadir (PW not produced) and Liaqat Ali (PW-8) was available at Adda Sahuwala, one of the dacoits, who had done Qaisar Mehmood to death by firing, passed on a motor cycle and identified by him; the above named PWs told the complainant that the said accused was the appellant, hence he was nominated and arrested. The case was investigated, when the appellant was found to be involved, hence challaned to the court. Formal charge against him was framed on 27.5.2009, which was denied and trial was claimed, hence the prosecution witnesses were summoned and recorded. The prosecution had got examined as many as 13 witnesses. The gist of evidence led by the material witnesses was as under:- i) PW-3 Dr. Iftikhar Ahmad had conducted postmortem examination of the dead body of Qaisar Mehmood on 12.6.2007 and prepared the postmortem report (Ex.PD) and pictorial diagrams Ex.PD/1 and Ex. PD/2), when an incised stitched wound on left lumber region, having blackening around the margins and another, stitched wound on right lumber region of the. deceased were noticed. The injury No. 1 was caused by firearm and sufficient to cause death. ii) PW-5 Muhammad Amjad was the complainant as well as an eye witness of the alleged occurrence, who narrated almost the same facts as were disclosed by him in above mentioned complaint (Ex. PH) and subsequent application (Ex.PJ). iii) PW-6 Mst. Aasia Bibi and PW-7 Mst. Uzma Bibi the witnesses of the alleged occurrence, firstly had supported the version narrated in the FIR and thereafter contended that on 9.8.2007, the appellant was identified by them, in the lock-up of the Police Station, being one of the dacoits, who by firing committed murder of the deceased. iv) PW-8 Liaqat Ali, stated that on 11.7.2007, when he along with Muhammad Amjad complainant (PW-5) and Ghulam Qadir (PW not produced) was available at Adda Sahuwala, the appellant passed from the said place on a motor cycle and identified by the complainant to be one of the accused, who entered in his house and done his brother Qaisar Mehmood to death. v) PW-13 Muhammad Arif, S.I. had investigated the case, during which carried on the proceedings and prepared the documents, fully detailed in his statement.
3. On completion of the prosecution evidence, the appellant was examined under Section 342, Cr.P.C., during which the questions arising out of prosecution evidence were put to him, but he denied almost all such questions, while pleading his innocence and false involvement in the case with mala fide. The question "Why this case against you and why the PWs have deposed against you?" was answered by him in the following words:- "It is correct that complainant Amjad was abroad and after one year, he returned to Pakistan. Deceased Qaisar Mehmood had developed illicit relations with Mst. Uzma, wife of complainant. On fateful night, Uzma Bibi and deceased Qaisar Mehmood were present at the roof of their house in naked position and on seeing them in such objectionable position, complainant Amjad Mehmood made a fire, which landed on the deceased. The story of illicit relation between deceased and Mst. Uzma was very well published in Mohallah and I was also informed by deceased in order to suppress the fact of aforesaid illicit relationship and that of murder of deceased by complainant, he concocted this false story and implicated me in this occurrence. It is pertinent to mention that co-accused Shamas Din was also arrested by the Police and was subsequently bailed out. The complainant after grabbing his house, effected compromise with said co-accused and due to compromise, no proceedings were initiated against said co-accused. PWs are interested witnesses because they are closely related to the complainant. Police did not investigate the case on merits due to their having been in league with the complainant and thus wrongly challaned me in this case."
He did not opt to lead any evidence in his defence or make statement under Section 340(2), Cr.P.C. Finally, the impugned judgment was passed in the above mentioned terms. Consequently, the matters in hand.
4. The learned counsel for the appellant has argued that it was a dark night occurrence, but with mala fide, while concocting a false story and introducing false witnesses, the appellant was roped in the case; the alleged identification of the appellant, in the Police Station by PWs-6 and 7 was not acceptable under the law; no incriminating were recovered from the appellant; the prosecution case and the charge against the appellant was not established and proved, hence he was entitled to acquittal and as such the impugned judgment could not be termed justified.
5. On the other hand, the learned Deputy Prosecutor General, assisted by the learned counsel for the complainant, has opposed the appeal, while supporting the impugned judgment, resulting into conviction of the appellant to be well-reasoned and call of the day, hence not interferable.
6. Arguments of all the sides have been heard and the record has also been perused..
7. The occurrence had taken place during the night between 11/12.6.2007. At the time of reporting the matter to the Police through application (Ex.PH) and registration of the FIR (Ex.PA), neither any person, as accused was nominated nor features of any assailant were given or any source of light at the spot was described. After about a month of the alleged occurrence, the appellant had moved the above mentioned subsequent application (Ex.PJ), with the above mentioned contentions. In the said subsequent application (Ex.PJ), it was contended that when the complainant had identified the appellant to be one of the accused, who entered in his house and by firing, done his brother to death, Liaqat Ali (PW-8) and Ghulam Qadir (PW not produced) told him the particulars of the appellant. When in the FIR, no feature of the accused was given and in the subsequent application (Ex.PJ), it was not mentioned that on the basis of which feature, the appellant was identified to be an accused of the occurrence, then the grounds taken in the said application were nothing, but an after-thought concoction. As stated above, in the FIR, no source of light at the spot was described and the complainant (PW- 5), during cross-examination had admitted that no source of light on the roof of the house was available, then his stance that he had identified the appellant to be the person, who, on the roof of the house, had fired and caused injury to Qaisar Mehmood, which resulted into his death, was surely a false stance. -
8. Admittedly, no test identification parade was held and if, for a moment, it is presumed that the complainant had identified the appellant, even then he, for the purpose of test identification parade, should have been brought before Mst. Aasia Bibi (PW-6) and Mst. Uzma Bibi (PW-7), but without any reason, cause or justification, the said exercise was not done. When there was no hurdle in conducting the test identification parade, in the prescribed manner, then the alleged identification of the appellant by the above named ladies, in the Police Station was a false proceedings, hence should not be given any weight.
9. The complainant (PW-5), in his statement had contended that he had seen the appellant at Adda Sahuwala, whereas the version of Liaqat Ali (PW-8), was that at that time, he along with the complainant was available in the commission shop of Muhammad Akram, who never came forward to fortify the above said alleged contention.
10. The appellant remained on physical remand, but no incriminating could be recovered from him, hence the empty of .30 bore pistol, collected from the spot was not sent to any laboratory and as such had not given any benefit to the prosecution.
11. All the above mentioned facts and circumstances, lead, us to the conclusion that the prosecution has failed to bring home the charge against the appellant, beyond shadow of all reasonable doubts. Admittedly in such like situation, the appellant deserves benefit of doubt, not as a matter of grace or concession, but as of right. In this regard, reference may be made to the case titled "Tariq Pervaiz v. The State" reported as 1995 SCMR 1345.
This view has further been reiterated in the case titled "Ayub Masih v. The State" reported as PLD 2002 SC 1048, whereby it has been held that while dealing with a criminal case, the golden principle of law "it is better that ten guilty persons be acquitted, rather than one innocent person be convicted" should always be kept in mind.
12. Resultantly, the above captioned Criminal Appeal No. 112- J of 2011 is accepted, the, impugned judgment is set aside and the appellant namely Muhammad Asif is acquitted of the charge, while extending him the benefit of doubt. He is in custody, hence be released forthwith, if not required to be detained in any other matter. The disposal of the case property shall be as directed by the learned Trial Court. As a consequence, Murder Reference No. 165 of 2011 is answered in negative and death sentence awarded by the learned Trial Court to Muhammad Asif appellant is not confirmed.