1. MUHAMMAD SALEEM JESSAR, J.--Through this Cr. Appeal the appellants have challenged Judgment dated 27.07.201 1 handed down by learned Vth Additional Sessions Judge, Karachi Central in Sessions Case No.145 of 2007 (re-The State v. Mohammad Ghayas alias Baba and others) being outcome of FIR. No.71/2007 registered at P.S. Sharifabad, under Sections 302, 324 & 34 P.P.C., whereby he convicted the appellants for offence punishable under section 302(b) P.P.C. for committin g murder of deceased Mohammad Sohai l son of Mohammad Qaiser and sentenced them to undergo life imprisonment and to pay compensation of Rs.100,000/- (Rupees One Lac only) each to the legal heirs of the deceased as required by Section 544-A Cr.P.C, and in default thereof to suffer R.I. for one year more. Both the accused/appellants were also convicted for offence punishable under Section 324/34 P.P.C. for causing injuries to PWs Umair and Noor Aziz and were sentenced to suffer R.I. for five (5) years and to pay fine of Rs.25000/- (Rupees Twenty Five thousand only) each and in default thereof to suffer S.I. for three (3) months more. However , the appellants were extended benefit of Section 382-B Cr.P.C. Both the sentences were ordered to run concurrently .
2. Precisely , the facts of the prosecution case, are that on 14.4.2007 statement of complainant Muhammad Rizwan was recorded under Section 154 Cr. P.C. on the basis of which FIR was lodged at P.S. Sharifabad wherein he stated that on the day of incident at about 0045 hours he was returning home after taking breakfast and when he reached near the compound he heard fire shots and then he rushed towards the compound and saw a black colour car speedily going towards Ghariabad. He reached at the gate of compound where he saw that his real elder brother Muhammad Sohail aged about 35 years was lying on the ground in pool of blood whereas inside the gate of compound Umair son of Waheeduddin was lying in injured condition. He then took them to Abbasi Shaheed Hospital where his brother was shifted to operation theater and injured Umair informed him that he along with Sohail while riding on motorcycle entered the compound where they saw one person passing urine on outer wall of the compound and other person was standing near a car having unknown registration number and was smoking charas. Sohail resisted on the said acts of the culprits, whereupon the said person fired upon Sohail with TT pistol with intention to kill him. On seeing this he (injured Umair) rushed towards Sohail upon which said person also fired upon him due to which he sustained injury on his left thigh and thereafter both the culprits fled away in their car.
3. Due to firing of those persons one Ricksh aw Driver namely Noor Aziz son of Rab Nawaz had also sustained injury .
4. In the meanwhile, complainant was inform ed, that his brother Muhammad Sohail had expired in operation theater during treatment, hence he lodged instant FIR.
5. After usual investigation police submitted the charge sheet against the accused . Copies of police papers were supplied to the accused vide Ex.1 and a formal charge Ex.2 was framed against them and their Pleas were recorded vide Ex.2/A & 2/B 'wherein they pleaded not guilty and claimed trial.
6. In order to prove its case prosecution examined P.W. complainant Muhammad Rizwan at Ex.3, who produced his statement recorded under Section 154 Cr. P.C. as Ex.3/A, FIR as Ex.3/B, memo of inspection of dead body as Ex.3/C, Inquest report as Ex.3/D, memo of site inspection as Ex.3/E and memo of pointation of place of incident and arrest of accused as Ex.3/F . P.W. H.C. Azhar Iqbal was examined at Ex.4, who produced memo of recovery of TT Pistol as Ex.4/A. P.W. Majid Siddiqui was examined at Ex.6. P.W. ASIP Muhammad Tausif Khan was examined at Ex.9, whereas P.W. Umair was examined at Ex.10. P.W. SIP Ghulam Mujataba was examined at Ex.11, who produced letter issued by him to MLO Abbasi Shaheed Hospital for initiating proceeding under Section 174 Cr.P.C. as Ex.11/A and memo of handing over the dead body of deceased Sohail as Ex.11/B, P.W. MLO Dr. Syed Sajid Ali was examined at Ex.12, who produced ML Certificate of injured Noor Aziz as Ex.12/A and 12/B, ML Certificate of injured Umair as Ex.12/C and ML Certificate of deceased Muhammad Sohail as Ex.12/D. P.W. Inspector Syed Rahat Ali Zaidi was examined at Ex.13, who produced Roznamcha Entry No.15 as Ex.13/A, letter issued by him to the concerned Magistrate for holding Identification Parade of the accused as Ex.13/B, Notice under Section 160 Cr.P.C. as Ex.13/C, letter issued to SHO, P.S. Gulshan-e-Iqbal for handing over the TT Pistol used in the crime as Ex.13/D, copy of FIR as Ex.13/E, memo of recovery of car bearing registration No.AGC 172, one 30 bore pistol as Ex.13/F , letter issued to Incharge FSL while sending the TT Pistol for his opinion and report as Ex. f3/G, report of FSL as Ex.13/H and cause of death certificate of deceased Sohail as Ex.13/I. Thereafter , prosecution closed its side vide Ex.14.
7. Statements of the accused were recorded under Section 342 Cr.P.C. as Exs.15 and 16 wherein they denied prosecution allegations and claimed themselves to be innocent. However , they neither examined themselves on oath in terms of Section 340(2) Cr . P.C. nor produced any witness in their defence.
8. After formulating the points for determinat ion, recording evidence of the prosecution witnesses and hearing counsel for the parties, trial Court vide impugned judgment convicted and sentenced the appellants, as stated above.
9. Against the said judgment the appellants have preferred instant appeal.
10. I have heard learned advocates for both the appellants, as well as A.P.G. appearing for the State and perused the material available on the record.
11. Learned counsel for the appellants contended that the appellants have been falsely involved in the present case.
12. They further contended that there are material contradictions in the evidence of the prosecution witnesses which make the prosecution case highly doubtf ul, as such the appellants are entitled to be extended benefit of doubt.
13. They further contended that the names of the appellants do not appear in the FIR, nor their description has been mentioned. They further contended that postmortem examination of the deceased was not held, which is fatal to the prosecution case. They further contended that neither any identification test of the accused was held, nor there is any confessional statement of the accused. They further contended that complainant -Mohammad Rizwan has himself admitted that he is not an eye-witness of the alleged incident. They further contended that the report of Ballistic Expert is not positive. Even otherwise the weapon allegedly recovered by the I.O. is a licensed gun of appellant Mohammad Ghayas and the same also did not match with the empties alleged secured by the I.O. Besides, there is also considerable delay in sending the crime weapon and the empties to the Ballistic Expert._ They further contended that MLO has also admitted that he did not secure any bullet from the body of the deceased and/or of the injured. It was further contended that there are other legal flaws in the prosecution case as such the impugned judgment is not sustainable in law. It was further contended that learned trial Court has not taken into consideration properly the legal as well as factual aspects of the case and has passed the impugned judgment in a hasty and mechanical manner without appreciating the relevant law as well as the submissions made on behalf of the accused. They prayed for setting aside the impugned judgment and acquittal of the accused/appellants.
14. Conversely , learned A.P.G. appearing for the State, supported the impugned judgment and contended that the prosecution has succeeded in proving the case against the accused and all the prosecution witnesses have implicated the appellants in the commission of the alleged offence. He also contended that minor contradictions in the evidence of prosecution witnesses are ignorable. He prayed for dismissal of the appeal and maintaining the conviction and sentence awarded to the appellants vide impugned judgment.
15. From the perusal of the evidence of the prosecution witnesses, it appears that there are certain admissions in their depositions which are fatal to the prosecution case and strengthen the case of the accused / appellants.
16. Complainant in his cross-examination admitted as under: "The distance between the wall of compound and our flat is about 70 feet. It is correct Inspector Rahat Ali Zaidi prior to preparation of inspection of place of occurrence at the pointation of accused has already visited and inspected place of occurrence on my pointation. It is correct I am not eye witnes s of occurrence. It is correct all facts to the effect of occurrence came into my knowledge through P.W. Umair . It is correct in my statement under sections 154 Cr.P.C. and 161 Cr.P.C. it has not been stated that vehicle was stopped in front of my house. It is correct in my 154 Cr.P.C. statement and in statement under section 161, Cr.P.C. it has not been mentioned that Umair discloses that the person who was standing besides car when was refrained from smoking Charas thereby informed that he also drunks wine. It is correct in my statement under sections 154, Cr.P.C. and 161 statement it has not been mentioned that injured Umair was taken to Abbasi Shaheed Hospital in Ambulance."
17. Injured P .W. Umair in his cross examination made following admissions: "....The accused Rashid Majeed was not visible from the house of deceased Sohail due to boundary wall.... It is correct that place of incident is busy road and surrounded by several flats and houses. Several Persons were gathered after the incident. It is correct that I have seen the accused persons sever ally in the court. It is correct that deceased Sohail was worker of one Political Party of Karachi. Again says who is worker of the M.Q.M." '
18. P.W. MLO Dr .Syed Sajid Ali in his cross examination admitted as under: "I did not secure bullet from the body of the deceased or injured. Deceased namely Sohail was brought in the Hospital alive....... injured namely Noor Aziz and Umair were in position to make statements but they did not make statement in my presence."
19. I.O. Inspector Rahat Ali Zaidi in his examination-in-chief deposed as under: "I also produce the cause of death certificate of deceased issued by Dr. Anwar of Abbasi Shaheed Hospital as Ex.13/1. The said Doctor is presently not traceable."
20. In his cross-examination he made following admissions: "It is correct that I did not collect blood stained earth/ clay from the place of incident . It is correct that two empties and two lead which I had collect ed from the place of incident were not stained with blood . It is correct that P.W. Injured Umair has not given the description of accused in his statement under Section 161 Cr.P.C. Vol. says that he has given the complexion of one of the accused. It is not in my knowledge whether P.W.- Umair has given by the complexion of one of the accused in his 161 Cr. P.C. statement or not.........It is correct that I did not mention in the charge sheet that accused were produced before the Magistrate for the purpose of their identification test but concerned Magistrate has refused to hold the Identification test of the accused. It is correct that the deceased was belonging to Mutahida Qaumi Movement. It is correct that the vicinity of Sharifabad remained under control of Mutahida Qaumi Movement. It is correct that usually incidents of firing taking place in the said remit.... It is correct that P.W. Noor Aziz Rickshaw Driver has stated in his 161 Cr. P.C. statement that he does not know from which direction firing was made and hit to him....
21. Besides, in para No.2 of Ballistic Expert's report (Ex.13/H) it was mentioned, "No definite opinion could be expressed regarding two 30 bore mutilated crime bullets now marked as B1 and B2 due to lack of sufficient identifiable data for examination."
22. Besides above, there also seems to be other flaws/lacunas in the prosecution case. It seems that the FIR was lodged against unknown persons and neither the names of the accused/appellants have been mentioned in the FIR, nor even their hullias/descriptions have been narrated by the complainant or injured witness Umair . In the circumstances, identification parade of the accused was very much necessary as required under Article 22 of the Qanun-e-Shahadat Order , 1984. Non-holding of identification parade in such circumstances was fatal to the prosecution case. It is now well settled that holding of identification parade would become mandatory if names of culprits were not mentioned in the FIR. In this connection reference may be made to the case of Nazir and 2 others v. The State reported in 2018 PCr.L.J. Note 14 [Sindh] decided by a Division Bench of this Court wherein it was held as under: "Since, the accused persons were not known by the complainant hence FIR was lodged against the unknown persons therefore ocular account in such like case(s) the main piece of evidence would be the identification parade through which unknown becomes known."
23. According to I.O. he had produced the accused for identification parade but concerned Judicial Magistrate refused to hold the identification test and remanded the accused to jail custody . However , the I.O. has admitted in his cross examination that he had not mentioned such fact in the Charge Sheet. Even in such an eventuality it was incumbent upon the prosecution to have-examined the Judicial Magistrate which was not done, thus it also caused dent in the prosecution case.
24. According to Dr. Syed Sajid Ali on 14.4.20 01 at about 12.30 p.m. Mohammad Suhail was brought at the hospital in injured and unconscious condition and after examination he was admitted in Surgical Ward; however , during treatment he expired. Dr. Anwar of Surgical Ward issued Death Certificate in respect of Mohammad Suhail.
25. However , no postmortem examination was conducted on the deadbody of the deceased and no plausible explanation has been furnished for non-c onducting such postmortem examination. In the absence of postmortem report, it cannot be ascertained as to what nature of injuries were sustained by the deceased and with what kind of weapon such injuries were caused, so also the cause of death of the deceased also cannot be ascertained, particularly when Dr.Anwar who had issued Death Certificate has also not been examined by the prosecution. In the case of Zainah Bibi v.. Mohammad Ashraf and others reported in 2018 PCr.LJ 13 (Lahore] , honourable Lahore High Court held as under: "The postmortem examination on the deadbody of Abdul Ghaffar deceased has also not conducted to determine his cause of death. This fact is also fatal to the case of the prosecution."
26. In this view of the matter , it can safely be held that non-conduct of postmortem examination on the dead body of the deceased also put D serious dent and created serious doubts in the prosecution case.
27. It has also come in the evidence that crime weapon viz. 30 bore pistol allegedly used by accused Mohammad Ghayas in the commission of alleged offence was sent by SIO Abdul Sattar Gopang of P.S. Gulshan-e-Iqbal and the same was handed over to the I.O. of this case through H.C. Azhar Iqbal, as the accused/appellant had been arrested in another case vide F.I.R. No.202/2007 registered at P.S. Gulshan-e-I qbal under sections 506-B/337 P.P.C. The said pistol was handed over to the I.O. on 07.5.2007 vide Memo Ex.4/A whereas the same was received by the Ballistic Expert on 18.5.2007 as is evident from his report Ex.13/H. Thus, there is delay of about 12 days in sending the crime weapon for examination and report of the Ballistic Expert. No explanation has come forward from the prosecution for such delay . In the case reported as Samandar alias Qurban and others v. The State reported in 2017 MLD 539 Karachi , while dealing with the point of delay in sending the weapon to Ballistic Expert, this Court held as under: "Apart from above sending of crime weapon to ballistic expert for forensic report with delay of 20 days of their recovery also added further doubt into the prosecution case, thus in view of above coupled with non-compliance of section 103, Cr.P.C., it can safely be presumed that alleged recovery of crime weapon was not made from the possession of the appellants as alleged by the prosecution."
28. In the case reported as Yaqoob Shah v. The State (1995 SCMR 1293 ) honourable Supreme Court held that the report of the Fire-Arm Expert was of no avail to the prosecution as the crime empties and the fire-arms allegedly recovered from the accused were sent to Forensic Science Laboratory after delay . Reference in this respect may also be made to the decision reported as Ghulam Hussain and 2 others v. State (1998 PCr.LJ 779). In the circumstances, such report of the ballistic expert even might be in positive, would lose its sanctity .
29. It is also noteworthy that the evidence of complainant Mohammad Rizwan is 'hearsay' as lie has clearly admitted in his cross-examination that he has not himself witnessed the alleged incident and that he has narrated what he had been told by injured Umair . In this view of the matter , complainant's statement has no evidentiary value in view of provisions of Article 71 of Qanun-e-Shahadat Order , 1984, and by virtue of said provisions, P.W. Mohammad Rizwan should have been the complainant in the case, who claims to have to seen the alleged incident instead of P.W. Mohammad Rizwan. This is also injurious to the prosecution case.
30. In view of aforesaid admissions made by the prosecution witnesses in their evidence, so also aforesaid legal infirmities and lacunas in the prosecution case; it can safely be held that the prosecution has not succeeded in proving the case against the accused/appellants beyond shadow of reasonable doubt.
31. It is well settled principle of law that the prosecution is bound under the law to prove its case against the accused beyond any shadow of reasonable doub t. It has also been held by the Superior Courts that conviction must be based and founded on unimpeachable evidence and certainty of guilt, and any doubt arising in the prosecution case must be resolved in favour of the accused. In the instant case prosecution does not seem to have proved the allegations against the accused/appellant by producing unimpeachable evidence, Thus doubts have been created in the prosecution version. In the case reported as Wazir Mohammad v. The State (1992 SCMR 1134) it was held by honourable Supreme Court as under: "In the criminal trial whereas it is the duty of the prosecution to prove its case against the accused to the hilt, but no such duty is cast upon the accused, he has only to create doubt in the case of the prosecution."
32. In another case reported as Shamoon alias Shamma v. The State (1995 SCMR 1377 ) it was held by honourable Supreme Court as under: "The prosecution must prove its case against the accused beyond reasonable doubts irrespective of any plea raised by the accused in his defence . Failure of prosecution to prove the case against the accused, entitled the accused to en acquittal ."
33. Needless to emphasize the well settled principle of law that the accused is entitled to be extended benefit of doubt as a matter of right and not as a grace or concession. In the present case, there are various admissions in the evidence of the prosecution witnesses which create doubts and put dents in the prosecution case. Even an accused cannot be deprived of benefit of doubt merely because there is only one circumstance which creates doubt in the prosecution story . In the case reported as Tariq Pervaiz v. The State 1995 SCMR 1345 the honourable Supreme Court held as under :- "The concept of benefit of doubt to an accused person is deep-rooted in our country . For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right."
34. In view of above, by a short order dated 07.8.219 instant Criminal Appeal was allowed and the conviction and sentence awarded to the appellants vide impugned Judgment dated 27.07.201 1 passed by learned Vth Additional Sessions Judge, Karachi (Central) in Sessions Case No.145 of 2007 (re-The State v. Mohammad Ghayas @ Baba and others ) being outcome of FIR No.71/2007 registered at P.S. Sharifabad under sections 302, 324 & 34 P.P.C. was set aside. The appellants Mohammad Ghayas alias Baba and Rashid Majeed were acquitted of all the charges. They were ordered to be released forthwith if their custody was not required by the jail authorities.
35. Above are the reasons for the said short order . revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.