ANW AARUL HAQ PANNUN, J.---Through the titled appeal under section 410, Cr.P.C., appellant Lal Sher has challenged the vires of judgment dated 17.04.2010 passed, on the conclusion of trial, in case FIR No.318/2000, dated 30.05.2000 for offences under sections 302 and 34, P.P.C., registered at Police Station Noor Shah, District Sahiwal the learned Additional Sessions Judge, Sahiwal whereby he has been convicted and sentenced as under:- Under section 302(b), P .P.C.
Imprisonment for life and compensation of Rs.50,000/- payable to legal heirs of deceased under section 544-A, Cr.P.C. to be recovered as land revenue payable to the legal heirs of deceased and in case of non-payment of the same, to undergo six months' S.I.
Benefit of section 382-B, Cr .P.C. was extended to the appellant.
2. The prosecution's story , as unfolded through the FIR (Exh.PH/1) registered on the basis of complaint (Exh.PH) of complainant Noor Ahmad (PW-11) is to the effect that on 30.05.2000 at about 7:30 a.m., complainant along with his brothers, namely , Zahoor Ahmad (deceased) and Manzoor Hussain (PW-13) were going on motorcycle from their Chak No.66/4-R to attend the court of Magistrate at Sahiwal; the complainant and Zahoor Ahmad were sitting on the back of motorcycle while Manzoor Hussain was driving the same, when they reached near Chak No.55/GD at Noor Shah Road, at about 07:45 a.m., co-accused Saeed Akhtar (since dead) along with unknown person (appellant) who was driving the motorcycle came from their rear, accused Saeed Akhtar made three carbine fire shots which hit Zahoor Ahmad on left side of his neck as a result whereof, smeared with blood, he fell down on the ground and succumbed to the injuries while reaching at the hospital.
3. Motive behind the occurrence was stated to be the previous litigation between the complainant and co-accused Ghulam Murtaza over horse breeding grant of land.
4. Registration of the case and usual investigation encapsulated into report under section 173, Cr.P.C. against the appellant, eventuating into its submission before the court, which on taking cognizance, after supplying copies of the incriminating statements, charged sheeted him and upon his denial, professing his innocence and claiming trial, directed the prosecution to produce evidence for proving the charge.
5. The prosecution has produced as many as 16-witnesses besides tendering, in evidence, reports of Chemical Examiner (Exh.PT) and Serologist (Exh. PT/1).
6. After the alleged occurrence, injured/deceased Zahoor Ahmad was taken to DHQ Hospital, Sahiwal where he was medically examined by Dr. Munir Ahmad Hayat (PW-12) on 30.05.2010 at 08:15 a.m., who noted the following injury on his person:-
7. Fire arm wound with inverted margins measuring .5 cm x 1 cm on left side of neck x deep going.
2. Fire arm wound with inverted margin and measuring about 1 x 1 cm. on left side of neck x deep going.
Fire arm wound with inverted margin and measuring about 1 x 1 cm on left side of neck x deep going.
All the injuries were kept under observations for surgeon opinion. The patient was in shock. After the death of the injured on 30.05.2010, Dr. Muhammad Zahid, Medical Officer DHQ Hospital, Sahiwal (PW-9) conducted the post- mortem examination over the body of deceased on the same day at 5:00 p.m., and observed the following injuries: -
1. A stitched wound 5 cm on left side of neck.
2. Stitched wound of 7 cm on left side of neck in the lower part.
3. Stitched wound 3 cm on the left side of neck above.
Lacerated wound 1 cm x 1 cm deep going on left side of neck, close to wound No.3.
5. Lacerated wound 1 cm x 1 cm deep going 2 cm below injury No.4.
Injuries Nos.1 and 2 were surgical intervention whereas injuries Nos.3 to 5 were firearm injuries. In his opinion, injuries Nos. 3, 4 and 5 were ante-mortem and caused by firearm weapons.
The time between injuries and death was hospital death whereas between death and post mortem was about eight hours.
7. The ocular account in this case has been furnished by Noor Ahmad/complainant (PW-11) and eye-witness Manzoor Hussain (PW-13). The matter was investigated by Manzoor Hussain Inspector PW-14), Sarfraz ASI and Aftab Ahmad DSP (Investigation) (CW -2). Rest of the witnesses are formal in nature.
8. When examined under section 342, Cr.P.C., appellant denied every bit of incriminating material so produced.
While replying the question that as to why this case against him and why the prosecution witnesses had deposed against him, he replied as follows:- "I am innocent. This is a false case against me. I have been involved in this case due to previous litigation and enmity . In fact it was a blind occurrence. The deceased was taken to the DHQ hospital while passer by in car in injured and unconscious condition. The police got him medically examined. I was roped in this case with mala fide intention and personal motive. I was declared innocent during investigation."
9. The appellant neither opted to appear under section 340(2), Cr .P.C. nor have produced any defence evidence.
10. Learned trial court, on conclusion of the trial, proceeded to convict the appellant as aforesaid. Hence, the titled appeal.
11. Arguments heard. Record perused.
12. It has been observed that initially the FIR was lodged by the complainant against two nominated and one unknown accused person. Accused Saeed Akhtar (since dead) has been attributed the effective role of inflicting firearm injuries on the person of deceased, which as per opinion of the Medical Officer (PW-9) who conducted the post-mortem examination over the dead body of the deceased were ante-mortem in their nature leading to his death. Remaining two accused including the A appellant have not been ascribed any role and it had been alleged that they were accompanying the real culprit at the time of alleged occurrence. Moreover , it is also not alleged that the appellant was having any weapon at the time of alleged occurrence. It was a broad day light occurrence but no specific features of the appellant i.e. stature, height, complexion, shape of the face including face cuts, colour of clothes etc. were mentioned in the FIR, meaning thereby that no specific features were available with the prosecution which could be made basis for confirmation of identity of the accused persons at the time of test identification parade. The appellant was arrested after nine months of the registration of FIR on 06.04.2001 and thereafter on 19.04.2001, for identifying him, his test identification parade was conducted under the supervision of learned Magistrate 1st Class, Sahiwal. Although the appellant was identified without assigning his respective role in the occurrence by the complainant and the witnesses during the identification parade, therefore, in absence of description of features in the FIR and the statements under section 161, Cr.P.C., the appellant cannot be incriminated on the basis of conclusion of test identification parade, therefore, ocular account furnished by the prosecution against the appellant is devoid of credence and is not reliable. Had the complainant and the witnesses seen the appellant in the company of real culprit of the occurrence at the relevant time, specific features regarding his height and face etc., could have been mentioned in the FIR and subsequent statements under section 161, Cr.P.C. and in absence thereof, conclusio n cannot be drawn about the guilt of participation of the accused in the occurrence as alleged by the prosecution.
13. So far as the medical evidence is concerned, as per prosecution's own version, neither the appellant was armed with any kind of weapon at the time of alleged occurrence nor caused any fire-arm injuries on the person of the deceased and all the firearm injuries, as aforementioned, had alleged been inflicted by his co-accused.
Moreover , the purpose of post mortem examination is always to ascertain the cause of death, number and locale of injuries, kind of weapon used in the crime and duration between injuries and death as well as death and post mortem but the medical evidence by itself does not raise finger towards any specifi c culprit. The ocular account has already been discarded by this Court and, thus, the medical evidence lends no support to the ocular version.
14. The appellant was arrested in this case on 06.04.2001 and sent to jail for conducting identification parade, which was done under the supervision of learned Magistrate. Thereafter , during investigation, motorcycle Yamaha No.4144/SLH was recovered by the investigating officer on his pointing out, which was taken into possession vide recovery memo Ex.PK but the same is inconsequential as no colour , model and registration number of the same has been mentioned by the complainant in the FIR. Moreover , when the prosecution has failed to establish its ocular version beyond shadow of reason able doubt mere recovery needs not to be discussed elaborately being corroboratory piece of evidence.
15. The motive behind the occurrence, as mentioned in the FIR, was litigation between the complainant and co- accused Ghulam Murtaza over horse breeding grant, thus, it is clear that the appellant had no motive to commit the alleged of fence.
16. Having scanned the entire prosecution evidence and material available on record, I am of the view that the case in hand is replete with doubts and the benefit of reasonable shadow of doubt would always favour the accused as a matter of right and not of grace. Reliance is placed on the case reported as "Muhammad Akram v.
The State" (2009 SCMR 230 ) wherein, it has been held as under:- "It is an axiomatic principle of law that in case of doubt, the benefit of thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervaiz v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right. "
17. For what has been discussed above, this appeal is allowed, the conviction and sentence of appellant Lal Sher son of Noora is set aside and he is acquitted of the charge by extending the benefit of doubt to him. He is directed to be released forthwith, if not required in any other case. 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.