SHEHRAM SAR WAR CH. J.---Muhammad Imran, Muhammad Ali and Hafiz Muhammad Shahbaz (appellants) were tried by the learned Addl. Sessions Judge, Sialkot in case FIR No.46 dated 25.01.2013, offence under Sections 302 and 394, P.P.C., registered at Police Station Cantt. District Sialkot for committing robbery and murder of Nazeer Hussain, nephew of the complainant. Vide judgment dated 26.01.201 7 passed by the learned Addl.
Sessions Judge, Sialkot, Muhammad Imran (appellant) has been convicted under Section 302(b), P.P.C. and sentenced to death, with a further direction to pay Rs.2,00,000/- (rupees two lakh only) as compensation under Section 544-A, Cr.P.C. to the legal heirs of the deceased and in default whereof to further undergo simple imprisonment for six months. Muhammad Ali, Hafiz Muhammad Shahbaz and Muhammad Imran (appellants) were also convicted under Section 394, P.P.C. and sentenced to imprisonment for life, with a fine of Rs. 1,00,000/- (rupees one lakh only) each under Section 544-A, Cr.P.C. payable to Zille Humma and legal heirs of the deceased.
Assailing the above convictions and sentences, the appellants have filed the appeal in hand whereas the learned trial court has sent Murder Reference No. 113 of 2017 for confirmation or otherwise of Muhammad Imran, appellant's sentence of death, as required under Section 374 of the Code of Criminal Procedure. Since both these matters have arisen out of the same judgment, therefore, the same are being decided together through this single judgment.
2. Prosecution story , as set out in the FIR (Exh.PG) registered on the written application (Ex.PG/2) of Syed Shabbir Hussain, complainant (PW.14) is that on 24.01.2013 at about 07:00 p.m. he (complainant) along with his paternal nephew namely Sajid Hussain were going towards Kharota from Sialkot on a motorcycle, his other paternal nephew namely Nazeer . Hussain and his wife Zille Humma were also accompanyi ng them on another motorcycle.
When they reached at Pulli Toopkhana, Nazeer Hussain and his wife were ahead of them. Two unknown accused persons intercepted Nazeer Hussain and his wife behind the Road Rondha Paropi Arian and attempted to snatch cash, gold ornaments and mobile from them. Nazeer Hussain made resistance, whereupon one unknown accused made a fire with his pistol on the abdomen of Nazeer Hussain, who fell down after sustaining injury . The accused persons fled away from the place of occu rrence. Nazeer Hussain was shifted to Civil Hospital in injured condition, wherefrom he was referred to Mayo Hospital, Lahore.
3. After completion of investigation, report under Section 173, Code of Criminal Procedure was submitted in this case. The appellants were summoned by the learned Addl. Sessions Judge, Sialkot to face the trial. Copies of relevant documents were provided to the appellants, as required under Section 265-C, Code of Criminal Procedure and charge under Sections 302 and 394 read with Section 34, P.P.C. was framed against them on 27.01.2014, to which they pleaded not guilty and claimed trial. Statements of the appellants under . Section 342 of the Code of Criminal Procedure were recorded on 16.01.2017, wherein they refuted all the prosecution allegations levelled against them and professed their innocence. The appellants neither opted to appear as their own witnesses, in disproof of the allegations levelled against them, as provided under Section 340(2), Code of Criminal Procedure nor did they produce any defence evidence. After conclusion of the trial, the learned trial court convicted and sentenced the appellants, as detailed above. Hence this appeal and murder reference.
4. Learned counsel for the appellants, in support of this appeal, contends that the appellants have falsely been implicated in this case; that there is a delay of about five hours and fifteen minute s in reporting the matter to the police without there being any satisfactory explanation; that the appellants are not nominated in the FIR either by name or description; that presence of both the witnesses of ocular account namely Syed Shabbir Hussain complainant (PW.14) and Zille Huma (PW.15) on the spot at the time of incident is doubtful in nature; that evidence of wajtakar furnished by Syed Imran Hussain (PW.7) is of no avail to the prosecution; that identification parade conducted in this case carries no value in the eye of law; that alleged recoveries of gold ring, mobile phone, cash Rs.5000/- and gold chain at the instance of Hafiz Muhammad Shahbaz and Muhammad Ali (appellants), respectively , are inconsequential; that similarly alleged recovery of 30 bore pistol at the instance of Muhammad Imran (appellant) does not advance the case of prosecution; that viewing from all angles the prosecution case is doubtful in nature and the appellants are entitled to the benefit of doubt not as a matter of grace but as of right.
5. On the other hand, learned Addl. Prosecutor General assisted by learned counsel for the complainant opposes this appeal on the grounds that there was no conscious or deliberate delay in repor ting the matter to the police; that though the names of the appellants are not mentioned in the FIR but this sole circumstance goes a long way to establish bona fide, of the complainant because had there been any malice on the part of the complainant, the appellants could have straightaway been nominated in the FIR; that the appellants were rightly identified during the course of identification parade; that prosecution case is fully supported by medical evidence and further corroborated by the recoveries of gold ring, mobile phone, cash Rs.5000/- and gold chain at the instance of Hafiz Muhammad Shahbaz and Muhammad Ali (appellants), respectively , as well as 30 bore pistol at the instance of Muhammad Imran (appellant); that the prosecution has successfully brought home guilt against the appellants beyond any shadow of doubt and there is no merit in this appeal.
6. We have heard learned counsel for the appellants as well as the learned Addl. Prosecutor General for the State and gone through the record with their able assistance.
7. This incident, as per FIR, took place on 24.01.2013 at 7:00 p.m, whereas the matter was reported to the police on the same night at 25.01.2013 at 12:15 a.m. with a delay of five hours and fifteen minutes. The distance between police station and the place of occurrence is just three kilometers. There is absolutely no plausible or convincing reason for the aforesaid delay in repotting the matter to the police. Even the complainant (PW.14) as well as Zille Huma (PW.15) while appearing before the learned trial Court did not give any plausible explanation for this delay which casts serious doubt about the veracity of prosecution story . Reliance may be placed on case law titled as "Mehmood Ahmed and 3 others v. The State and another" (1995 SCMR 127) wherein the Hon' ble Supreme Court of Pakistan at page 131 has observed as under:-- "5....Although in some circumstances a delay of two hours may not be of much importance yet in the facts and circumstances of this particular case as they have happened, the delay has great significance. It can be attributed to consultation, taking instructions and calculatedly preparing report keeping the names of accused open for roping in such persons whom ultimately prosecution may wish to implicate..."
8. Ocular account in this case consists of Syed Shabbir Hussain, complainant (PW.14) and Zille Huma (PW.15).
The presence of both these PWs on the spot at the time of incident is doubtful in nature because in the FIR it was the case of complainant that two unknown accused persons intercepted Nazir Hussain (deceased) and his wife and upon resistance of Nazir Hussain one accused person made a fire which landed on his abdomen, however , while appearing before the learned trial Court both the witnesses of ocular account improved the story of FIR by stating that three unknown accused persons intercepted Nazir Hussain and Zilla Huma. The inordinate delay in the FIR also casts doubt about their presence on the spot at the time of incident. The appellants are not nominated in the FIR either by name of description. There is no mention in the FIR or before the learned trial Court as to whose fire hit the deceased. The occurrence allegedly took place at night time and no source of light is mentioned in the FIR.
In the FIR as well as before the learned trial Court it B was the case of prosecution that Nazir Hussain (deceased) and his wife Zille. Huma (PW.15) were going on motorcycle when they were intercepted by the accused persons but the said motorcycle was not taken into possession by the I.O. during the course of investigation. The evidence of wajtakar furnished by Syed Imran Hussain (PW.7) is of no avail to the prosecution becaus e in the statement of said PW there is no mention that the accused persons were in perplexed condi tion when they crossed him on motorcycle. The identification parade conducted in this case carries no value in the eye of law because in the FIR description/feature such as height, complexion and physique of the appellants were not given. It is also well settled that identification parade is of no value when description/feature of the accused is not given in the contents of the FIR. We may also refer here the case of "Sabir Ali alias Fauji vs State" (2011 SCMR 563) wherein, at page 570, the Hon'ble Supreme Court of Pakistan was pleased to observe as under:- "6. ...It is also settled principle that identification test is of no value when description/feature of accused is not given in the contents of the FIR. It appears from the record that accused persons are complete strangers to the prosecution witnesses, therefore, in the absence of description in the contents of FIR, the benefit of doubt be given to the accused persons coupled with the face that according to the prosecution witnesses they had opportunity to see them on the day of incident in moonlight..."
Moreover , the identification parade of appellants was held on 04.03.2013 wherein all the three appellants had been made to sit jointly along with thirty dummies. Holding of a joint identification parade of multiple accused persons in one go has been disapproved by the Hon'ble Supreme Court of Pakistan in a recen t judgment passed in case titled "Gulfam and another v . The State" (2017 SCMR 1 189).
9. As far as medical evidence is concerned, the same may confirm the ocular account with regard to the receipt of injury , locale of injury , kind of weapon E used for causing the injury , duration between the injury and the death but it would not tell the name of the assailants. Reliance is placed on "Ata Muhammad and another v. The State"
(1995 SCMR 599 ).
10. So far as alleged recovery of .30 bore pistol at the instance of Muhammad Imran (appellant) is concerned the same is immaterial because as per statement of Athar Ghafoor S.I. (PW.16), Muhammad Imran (appellant) was joined into investigation on 19.02.2013 with the permission of learned Area Magistrate whereas the crime empty was received in the office of Punjab Forensic Science Agency on 25.02.2013 i.e. after the arrest of the said appellant. It is, by now, well established proposition of law that if the crime empty is sent to the Forensic Science Laboratory after the arrest of the accused or together with the crime weapon, the positive report of the said Laboratory loses its evidentiary value. 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 and others v. The State" (2008 SCMR 707). Likewise, alleged recovery of currency notes at the instance of Muhammad Ali (appellant) do not advance the case of prosecution because such like currency notes are available in wide circulation and no denomination of the said currency notes has been mentioned in the FIR. Similarly , alleged recoveries of mobile phone and gold ornaments at the instance of Hafiz Muhammad Shahbaz and Muhammad Imran (appellants) are of no avail to the prosecution because no receipt was produced by the complainant qua the above said gold ornaments and mobile phone showing that the same belonged to the complainant party . Moreover , mobile phone was an ordinary thing, easily available in the market.
11. So far as the defence plea taken by the appellants in their statements under Section 342, Code of Criminal Procedure are concerned, since the prosecution evidence is doubtful in nature, therefore, there is no need to discuss the same which are exculpatory in nature.
12. We have considered all the pros and cons of this case and have come to this irresistible conclusion that the prosecution could not prove its case against the appellants beyond any shadow of doubt. It is, by now well established principle of law that it is the prosecution, which has to prove its case against the accused by standing on its own legs and it cannot take any benefit from the weaknesses of the case of the defence. In the instant case, the prosecution remained failed to discharge its responsibility of proving the case against the appellants. It is also well established that if there is a single circumstance which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances which have created serious doubt about the prosecution story . Reliance is placed on case law titled as "Muhammad Akram v . The State" (2009 SCMR 230 ).
13. For the foregoing reasons, the appeal in hand is allowed, convictions and sente nces awarded to the appellants vide judgment dated 26.01.2017 passed by the learned Addl. Sessions Judge, Sialkot are set aside and the appellants are acquitted of the charges levelled against them while extending them benefit of doubt. Muhammad Ali, Hafiz Muhammad Shehbaz and Muhammad Imran, appellants are in jail. They shall be released forthwith if not required to be detained in any other case.
14. Murder Reference No.113 of 2017 is answered in the NEGA TIVE and the sentence of death awarded to Muhammad Imran (convict) is NOT CONFIRMED.