Syed Shahbaz Ali Rizvi, J: - This judgment shall dispose of Crl. Appeal No.197314 of 2018, Criminal Appeal No.135870 of 2018 filed by Muhammad Akmal, Qasim Ali, Muhammad Aslam and Adnan alias Chitta, appellants, respectively against their convictions and sentences, Criminal Revision No.185427 of 2018 filed by Muhammad Ashraf, complainant for enhancement of sentence awarded to respondents there in by the learned trial court and Murder Reference No.32 of 2018 sent by the learned trial court for confirmation or otherwise of the sentence of death awarded to Muhammad Akmal, convict as the same have arisen out of same judgment dated 05.01.2018 passed by the learned Addl. Sessions Judge, Faisalabad in case FIR No.123 dated 16.02.2016, offence under Sections 302 & 393 PPC registered at Police Station Sargodha Criminal Appeal No.135870 of 2018 Criminal Revision No.185427 of 2018 Murder Refe rence No.32 of 2018 Road District Faisalabad whereby , all the appellants were convicted under Section 393 PPC and sentenced to rigorous imprisonment for seven years each with fine of Rs.50,000/- each and in default thereof, to further undergo simple imprisonment for one month each. Muhammad Akmal and Qasim Ali, appellants were also convicted under Section 302(b)/ 34 PPC as a result whereof, Muhammad Akmal, appellant was sentenced to death as Ta'zir? whereas, Qasim Ali, appellant was sentenced to imprisonment for life for the murder of Waris Ali, deceased with the direction to pay Rs.3,00,000/- each as compensation to the legal heirs of deceased as envisaged under Section 544-A of the Code of Criminal Procedure, 1898. The amount of compensation was ordered to be recovered as arrears of land revenue and in default thereof, to undergo simple imprisonment for six months each. Muhammad Aslam and Adnan, appellants were acquitted of the charge under Section 302 PPC. Both the sentences of Qasim Ali, appellant were ordered to run concurrently except the sentence for non-payment of fine.
It is pertinent to mention here that Crl. Appeal No.197314 of 2018, to the extent of Muhammad Aslam, appellant was dismissed as having not been pressed vide order dated 23.11.2021 as he has already been released from jail after having served out his sentence. Similarly , learned counsel for the appellants does not contest Crl. Appeal No.197314 of 2018 to the extent of Adnan alias Chitta, appellant hence, instant appeal to his extent is also dismissed as having not been contested.
Likewise, Muhammad Akmal, appellant/convict as per report dated 05.10.2021 submitted by Superintendent, Central Jail, Faisalabad has passed away on 28.09.2021 due to cardiopulm onary arrest at DHQ Hospital, Faisalabad, therefore, Crl. Appeal No.135870 of 2018 filed by Muhammad Akmal, appellant/convict individually as well as Crl. Appeal No.197314 of 2018, to his extent, stand abated.
2. Per prosecution, the facts of the case, as disclosed by Muhammad Ashraf, complainant (PW-5) in his complaint (Exh-PF) on the basis of which formal crime report (Exh-PF/2) was registered, are that on 16.02.2016 at about 12.00 noon, the appellants while armed with .30 bore pistols, during robbery , committed the murder of Waris Ali, brother-in-law of the complainant.
3. Qasim Ali, appellant was arrested on 24.02.2016 under Section 54 of the Code of Criminal Procedure, 1898 by Zafar Iqbal, SI (PW-9), the investigation officer, who was arrested in this case after identification parade held on 29.02.2016. On 20.03.2016, Qasim Ali, appellant while in police custody , after making disclosure, got recovered .30 bore pistol (P-10) which was taken into possession vide recovery memo Exh-PK. After completion of investigation, the report under Section 173 of the Code of Criminal Procedure, 1898 was submitted. The learned trial court after observing all pre trial codal formalities framed charge against the appellant and his co-convict Muhammad Akmal (since dead), Adnan alias Chitta and Muhammad Aslam on 24.06.2016 to which they pleaded not guilty and claimed trial.
4. The prosecution, in order to prove its case, produced as many as ten witnesses during the trial. Muhammad Ashraf (PW-5) is the complainant of the case whereas, Abdul Hameed (PW-6) and Muhammad Boota (PW-7) furnished the ocular account. They are also the witnesses of recovery of crime weapons at the instance of the appellant, Qasim Ali.
Mr. Imtiaz Ali, Special Judicial Magistrate (PW -10) supervised the proceedings of test identification parade.
The medical evidence was furnished by Dr. Ejaz Hussain, Demonstrator PMC, Faisalabad (PW-4) who, on 16.02.2016 at 06.00 p.m, conducted the post mortem examination on the dead body of Waris Ali, deceased and noted four firearms injuries, two entry and Criminal Appeal No.135870 of 2018 Criminal Revision No.185427 of 2018 Murder Reference No.32 of 2018 two exit, on his body . In his opinion, death in this case occurred due to injury No.1 which damaged major blood vessels and trachea (airway) leading to haemorrhage and shock. All the injuries were ante mortem, caused by firearm. In his opinion, injury No.1 was sufficient to cause death in ordinary course of nature. The probable duration between injuries and death was immediate whereas, between death and postmortem examination was within six hours.
Zafar Iqbal, SI (PW-9) is the investigation officer of the case. Muhammad Nawaz, Draftsman (PW-2) prepared scaled site plans (Exh-PB & Exh-PB/1) of the place of occurrence whereas, rest of the witnesses are formal in nature. Learned Deputy District Public Prosecutor after tendering in evidence the reports of the Punjab Forensic Science Agency , Punjab, Lahore (Exh-PO, Exh-PP and Exh-PQ) closed the prosecution evidence.
5. The statement of Qasim Ali, appellant under Section 342 of the Code of Criminal Procedure, 1898, was recorded wherein, he refuted the allegations levelled against him and professed his innocence. He further maintained it was a blind murder and that the prosecution failed to collect any evidence and that he had falsely been implicated in this case by the police to show their efficiency . He did not opt to appear as his own witness on oath as provided under Section 340(2) of the Code of Criminal Procedure, 1898 in disproof of the allegations levelled against him however , he did produce a copy of FIR (Mark-DA, under objection) in his defence.
6. We have heard the arguments of learned counsel for the appellant, learned Deputy Prosecutor General, learned counsel for the complainant and also scanned the record with their assistance.
7. Admittedly , Muhammad Ashraf, complainant (PW-5) is not an eyewitness of the subject occurrence which, as per prosecution' s case, was witnessed by Abdul Hameed (PW-6) and Muhammad Boota (PW-7), not the residents of locality . During cross Criminal Appeal No.135870 of 2018 Criminal Revision No.18 5427 of 2018 Murder Reference No.32 of 2018 examination, it stands conceded by the complainant (PW-5) that Abdul Hameed (PW-6) is his cousin while the other eyewitness Muhammad Boota (PW-7) is a friend of PW-6. The friend, both these eyewitnesses purportedly were going to visit at the relevant time when on their way, they witnes sed the occurrence, could never be named by them during the trial. This transpires that both are not only related witnesses but the chance witnesses as well which requires strict scrutiny of their testimony .
8. According to the Medical Officer Dr. Ejaz Hussain (PW-4) who conducted postmortem examination, the dead body was received in the dead house at 02.35 p.m. on 16.02.2016 and the police papers were received at 05.50 p.m. thereafter , autopsy was conducted at 06.00 p.m. Conversely , the statement of Zafar Iqbal, SI (PW-9), the investigation officer reveals that dead body of Waris Ali, deceased when he reached in the hospital, was lying outside the Emergency Ward, he observe d the same, drafted injury statement (Exh-PD), prepared inquest report (Exh-PE) and handed over the same to Muhammad Sarwar 5595/C for further transmission to the mortuary for postmortem examination purpose. If statement of PW-9 is taken as true then why the Medical Officer received the police papers at 05.50 p.m. separately from the dead body , is a question that remains unanswered by the prosecution. Moreover , controverting PW-9, Muhammad Boota (PW-7) with regard to arrival of police states as under: - "...After the occurrence, the police attract ed at the place of occurrence and they inquired from us as well as from other people regarding the occurrence and went away and no other proceeding was conducted by the police..."
He further narrates as under: - ...On the day of occurrence, I called Abdul Hameed PW at 10.30 AM. I made call from cell No.0300-667241 1."
It is to be kept into consideration that the fateful incident took place at 12.00 o?clock in the noon. These discrepant statements of three prosecution witnesses reflect adverse to the credibility of Crim inal Appeal No.135870 of 2018 Criminal Revision No.185427 of 2018 Murder Reference No.32 of 2018 prosecution's case that even renders time of occurrence, proceedings qua the preparation of police papers i.e. inquest report, drafting, receiving and dispatch of complaint (Exh-PF) required for initiation of postmortem examination of the dead body , doubtful. It can be inferred from the supra mentioned facts that the proceedings, in fact, were reduced into writing with ante timing.
The delay hinted at above in transmission of the police papers by the investigation officer creates doubt about the availability of the eyewitnesses at the relevant time as it has repeatedly been held by the superior courts of the country that such delay normally happens when the occurrence is un-witnessed and the police during the intervening time usually remains busy in procuring the names of the witnesses or the complainant to cite them so in the police papers. In this regard, reference can be made to the case of Muhammad Riaz v. The State (2009 P. Cr.
L. J 1022 Lahore) wherein, this Court has observed as under: - "13. ...It is also not found correct that the F.I.R. had been got registered with promptitude as the occurrence had allegedly taken place at about 5-00 a.m. while the post-mortem examination was conducted at 1-00 p.m. and there is every possibility that the intervening period was consumed in concocting a story and to await for the relatives of the deceased, who were made witnesses subsequently , otherwise, they have failed to establish their presence at the spot..."
Same view was affirmed by the Hon'ble Supreme Court of Pakistan in the case of Irshad Ahmed v. The State (2011 SCMR 1 190), wherein the Hon'ble Supreme Court was pleased to observe as under:- "3. ...We have further observed that the post-mortem examination of the deadbod y of Shehzad Ahmed deceased had been conducted with a noticeable delay and such delay is generally suggestive of a real possibility that time had been consumed by the police in procuring and planting eye-witnesses and in cooking up a story for the prosecution before preparing police papers necessary for getting a post-mortem examination of the deadbody conducted..." Criminal Appeal No.135870 of 2018 Criminal Same view was reiterated by the Hon'ble Supreme Court of Pakistan in the case of Khalid @ Khalidi and 2 others v. The State (2012 SCMR 327). In the circumstances of case in hand, we are of the view that the occurrence of this case was un-witnessed.
9. Another important aspect noted by this Court is that according to the prosecution's case, the test identification parade of all the four accused was conducted jointly and it is matter of more concern that all the four accused/suspects were placed in four rows each at Sr. No.4 that stands admitted by the prosecution witnesses.
This can possibly be a mark to help the witnesses for their identification. No credibility can be attached to such identification parade proceedings. Moreo ver, the learned Special Judicial Magistrate (PW-10) also concedes that the suspects/accused persons including Qasim Ali, appellant raised objection regarding the veracity of the test identification parade by maintaining that they were shown to the witnesses when they were in police custody at police station even their photographs were shot there. In this view of the matter , we are of the opinion that the identification of appellant in such a manner and the ocular account furnished by the prosecution in this case is not trustworthy .
10. As regards recovery of .30 bore pisto l (P-10) and positive report of the Punjab Forensic Science Agency (Exh- PQ), suffice to observe that the crime empties taken into possession on 16.02.2016 were sent to the said Agency on 24.02.2016 i.e. with the delay of eight days without any reasonable explanation and the day when Qasim Ali, appellant along with his co-convicts, per record, was apprehended by Zafar Iqbal, SI (PW-9), the investigation officer which renders the veracity of positive report of the Punjab Forensic Science Agency (Exh-PQ) doubtful and consequently , makes the evidence of recovery inconsequential. Reliance in this respect is placed on the case of Jehangir v. Nazar Farid and another (2002 SCMR 1986 ), Israr Ali v. The State (2007 SCMR 525) and Ali Sher Criminal Appeal .135870 of 2018 Criminal Revision No.185427 of 2018 Murder Reference No.32 of 2018 and others v. The State (2008 SCMR 707). In Israr Ali's case , the Hon'ble Supreme Court has observed that when the crime empties are sent to Punjab Forensic Science Agency with delay , the recovery of the same does not provide strong corroboration qua the prosecution version. It is also to be kept into mind that the said recovery was allegedly effected from a graveyard, an open place accessible to all. Even otherwise, for the reason that this Court is not satisfied with the intrinsic value of the ocular account, direct evidence furnis hed by the prosecution against the appellant, the evidence of recovery of crime weapon and the report of the Punjab Forensic Science Agency , being corroboratory in nature only , is of no consequence.
11. Taking stock of the whole discussion, we have come to an irresistible conclusion that the prosecution remained unable to prove its case against the appellant beyond the shadow of a reasonabl e doubt. There remains no cavil about the proposition that if there is a single circumstance which creates reasonable doubt regarding the prosecution case, the same is sufficient to give benefit of the same to the accused, whereas, in the instant case we have observed many , discussed supra. The Hon'ble Supreme Court of Pakistan in the case of Ayub Masih v. The State ( PLD 2002 SC 1048 ) was pleased to observe as under:- "...The rule of benefit of doubt, which is described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted"..."
12. In the light of above discussion, we accept Criminal Appeal No.197314 of 2018 to the extent of Qasim Ali, appellant, set aside his convictions and sentences recorded by the learned trial court and acquit him of the charge levelled against him by extending him the Criminal Appeal No.135870 of 2018 Criminal Revision No.185427 of 2018 Murder Reference No.32 of 2018 benefit of doubt. He is in custody , be released forthwith if not required to be detained in any other case.
13. For the reasons mentioned supra, Crl. Revision No.185427 of 2018 filed by Muhammad Ashraf, complainant is dismissed in limine .
14. As Muhammad Akmal, convict has passed away , his appeal stands abated hence, Murder Reference No.32 of 2018 is also abated.