MANZOOR AHMAD MALIK, J.---Muhammad Rafique (appellant) was tried along with his co-accused namely Imran Haider , Jameel Iqbal, Muhammad Asif and Mehboob Hussain by the learned Sessions Judge Khushab in a private complaint regarding under sections 302 and 377, P.P.C. regarding an occurrence alleged to have taken place within the jurisdiction of Police Station Naushehra, District Khushab. Vide judgment dated 02.09.2010, he was convicted under section 302(b), P .P.C. for the murder of Hafiz Mehtab (deceased) and sentenced as under:- "...Therefore, he is convicted under section 302(b), P.P.C. and for an abundant caution he is sentenced to life imprisonment with Rs.50,000/- as compensation to be given to the legal heirs of the deceased under section 544- A, Cr .P.C..."
The appellant was, however , acquitted of the charge of sodomy as the same was not proved. Through the same judgment Imran Haider , Jameel Iqbal, Muhammad Asif and Mehboob Hussain were acquitted of the charges while extending them benefit of doubt. Assailing the above conviction and sentence the appellant has filed the appeal in hand.
2. Precise but relevant facts of the case, as contained in FIR (Exh.CW .7) registered on the statement of Ahmad Khan complainant (PW.1) is that he was resident of Uchali. Mehtab Ahmad son of the complainant about 15/16 years of age was learning Holy Quran from Kumharanwali mosque in village Uchali. On 21.05.2009, at about 02.00 p.m Mehtab Ahmad left for mosque for learning Holy Quran on cycle but did not return. The complainant along with Aftab Ahmad went to mosque in his search where he was told that Mehtab Ahmad did not come to mosque. The complainant reached near graveyard Uchali for search, when Sher Muhammad and Hassan Mehmood told him that they saw Mehtab Ahmad along with Muhammad Rafique (appellant), who was student in said mosque, moving towards Syedan Wala Choha. When complainant along with Aftab Ahmad reache d at Syedan Wala Choha, they saw the dead body of Mehtab Ahmad floating on the Chashma. The motive behind the occurrence as per contents of the FIR was that Muhammad Rafique (appellant) was of loose character as Mehtab Ahmad told the complainant that Muhammad Rafique used to force him to accommodate him for his unnatural lust. The investigation of this case was conducted by Muhammad Sher S.I (CW.7) but being dissatisfied with the Police investigation the complainant filed a private complaint on 26.09.2009 which was transmitted to the learned Sessions Judge Khushab on 17.10.2009. The prosecution story , disclosed in the private complaint (Mark-A) is that Imran Haider (co-accused of the appellant since acquitted) knocked the door of complainant on 21.05.2009 at about 02.30/300 p.m. and inquired whether Hafiz Mehtab Ahmad (deceased) was at home whereupon wife of the complainant directed Hafiz Mehtab (deceased) to go to the outer door. Thereupon Hafiz Mehtab Ahmad opened the door. Imran Haider asked Hafiz Mehtab to accompany him for Khatam Sharif. Hafiz Mehtab after informing his mother that he was going with Imran Haider and Jamil Iqbal proceeded with them. It was further alleged in the private complaint that at about 03.15 p.m., Sher Muhammad and Hassan Mehmood were coming on foot from Dhoke Ghamandra towards Ochali Adda and when they reached Mohallah Chontra, they met Hafiz Mehtab along with Imran Haider , Jameel Iqbal, Muhammad Asif, Mehboob Hussain, Tanveer Ahrnad and Muhammad Rafique near Syedan Wala Choha. On query , they disclosed that they were going for some work of administrator of the madrasa . Thereafter Sher Muhammad and Hasssan Mehmood after staying at Ochali in connection with their work left for their house situated at Korhi. At about 05.00/05.15 p.m., Muhammad Hussain (PW.3) was searching for shrubs at Korhi hill where he saw Imran Haider , Jameel Iqbal, Muhammad Asif, Mehboob Hussain, Tanveer Ahmad, etc, coming at fast speed from Chashma Syedan towards Mohallah Chontra Ochali, in perplexed condition. Muhammad Hussain asked them the reason as to why they were hurrying away but they did not reply and rushed away . Muhammad Hussain as per his routine again got busy in plucking and searching shrubs. After about 30/45 minutes and before maghrab prayer , Muhammad Hussain heard noise of some persons from Chashma Syedan, whereupon he reached Chashma Syedan and saw that Police and people of the vicinity had gathered there and they were talking about the murder of somebody . On seeing them, Muhammad Hussain came to know that a dead body was lying on a cot which was covered with light black cloth. In the mean while, Police placed a khais on the deadbody and by putting the same in a tractor trolley proceeded to Ochhali. The people available at the spot left for Ochali on foot. After some time, on reaching Ochali, the police made announ cement directing the whole city to reach at Adda for identification of dead body of unknown person. On identification, it was found to be dead body of Hafiz Mehtab Ahmad. In the meanwhile, Ahmad Khan complainant reached there and having come to know about the murder of his son he became unconscious. Thereupon the villagers and Aftab Ahmad real brother of the deceased attended Ahmad Khan and asked him to have patience. On identification, Police shifted the dead body to Police Station where area Nazim Sher Zaman who was available in the Police Station met them and while embracing the complainant with sympathy consoled him and made a commitment that the deceased was also like his son and he would take the culprits to the task. Complainant trusted the said Area Nazim. As Area Nazim was a political figure of the area who had good terms with the Police, therefore, the said Nazim got lodged the FIR and arranged medical report and also assured the complainant that he would tackle the Police as well as the Court proceedings. He further asked the complainant to attend his visitors whO had come for condolence. However , when the FIR and medical report came on the surface, the complainant came to know about mala fide intention of Sher Zaman as neither all the accused were nominated in the FIR nor the medical report was based on facts. Nazim Sher Zaman was sheltering the accused and the complainant was right in claiming so because without associating him in any investigation and also without informing him the accused were declared innocent whereas evidence of two other witnesses namely Muhammad Hayat and Haider was also available against the culprits. On 18.06.2009 at about 08.30 a.m. It was further alleged by the complainant that Muhammad Hayat met Imran Haider , and on seeing Imran Haider upset, Muhammad Hayat inquired him about his anxiety who made confession before Muhammad Hayat that on 21.05.2009 Hafiz Aftab Ahmad had been murdered who was called from his house on the pretext of attending a Khtam Sharif whereas an accused had been arrested on 17.06.2009 due to which he was upset. On 18.06.2009 at about 02.00 p.m., Haider son of Mian met with Imran Haider , before whom Imran disclosed in perplexed condition that he and his co-accused had committed a grave blunder on 21.05.2009 as they had committed murder of Hafiz Mehtab after subjecting him to sodomy and threw away the dead body in Chashma Syedanwala whereas one of their accomplice namely Muhammad Rafique had been arrested in the case on the preceding day and said Imran Haider apprehended that Muhammad Rafique would disclose the names of all the culprits to the Police. The complainant paid repeated visits to Muhammad Sher, S.I and also brought his witnesses to record their statements as per facts but the said Investigating Officer namely Muhammad Sher, S.I never recorded the statements of the complainant as well as his witnesses nor arrested the culprits rather declared them innocent at his own. From inception till the date of institution of the private complaint the complainant had been approaching the officers in Police hierarchy for justice but no heed was paid. The complainant further averred in the private complaint that due to connivance of Muhammad Sher, S.I and Area Nazim Sher Zaman neither the case was investigated in the right direction as per facts nor the culprits were arrested rather while keeping the complainant in dark and conducting ex-parte proceedings the culprits were declared innocent. All the accused were influential and had political worth and had influenced the investigation of the case from the lodging of FIR and medical report. Rather from the registration of FIR till sending the challan to the court all statements purportedly of the complainant as well as his witnesses were concocted by Sher Muhammad, S.I about which the complainant and his witnesses were ignorant.
The complainant and his witnesses were never called to the Police Station or any other place for recording their statements rather they were told that the complainant's case was strong and no culprit would be let off. The complainant further alleged that Police and doctor had done injustice with the complainant due to Area Nazim namely Sher Zaman and for that reason the private complaint was being instituted. The delay in filing of the private complaint occurred as the complainant remained busy seeking transfer of the investigation due to mala fide of the Investigating Officer whereas the Investigating Officer with mala fide kept the complainant in dark till the submission of challan to the court till 06.09.2009 and on getting the summons for producing his evidence the complainant came to know about the case.
3. The appellant and his co-accused namely Imran Haider , Jameel Iqbal, Muhammad Asif and Mehboob Hussain were indicted by the learned trial court under sections 302, 377, 148 and 149, P.P.C.. After trial only the appellant was convicted and sentenced under section 302(b), P .P.C. as mentioned in para.l supra. Hence this appeal.
4. Learned counsel for the appellant, in support of his appeal, contends that the appellant has falsely been implicated in this case; that there is no ocular account in this case and the prosecution case hinges on circumstantial evidence; that no time of occurrence is mentioned in the FIR and as per relevant column of the FIR the occurrence took place on 21.05.2009 at sham vela which in the month of may occurs at around 07.00 p.m. whereas the same was reported to the Police on 22.05.2009 at 12.10 (midnight) and as such there is a delay of about five hours in reporting the crime to the Police which casts serious doubts upon the veracity of prosecution case; that the complainant instituted a private complaint (Mark-A) on 26.09.2009 i.e. more than four months after the occurrence; that the explanation offered by the complainant for delay in instituting the private complaint is to the effect that he had been making efforts for transfer of investigation and while appearing before the learned trial court the complainant stated that he filed thirteen applications in this respect but no such application was produced in evidence, therefore, the delay in instituting the private complaint remained unexplained; that according to the contents of the FIR (Exh.CW .7) the complainant's son left his house on a bicycle and did not return till evening whereas according to the contents of the private complaint (Mark-A) the complainant's son was called from his house by Imran Haider and Jameel Iqbal (co-accused of the appellant since acquitted) and name of Muhammad Rafique (appellant) is conspicuously missing in this respect; that thereafter the evidence of last seen was furnished by Sher Muhammad (PW.2) but the testimony of this witness is contradicted by stance taken by the complainant in his cross-examination where he affirmatively responded to the suggestion that Muhammad Rafique (appellant) had no speaking terms with him and in the circumstances there was no occasion for Hafiz Mehtab Ahmad (deceased) to go with the appellant; that even otherwise this witness (Sher Muhammad PW.2) during his statement before the court disclosed his age as 65 years and as per his statement he was coming on foot from Dhok Ghamandra to Ochali Adda but it was brought on record through his cross-examination that distance between Dhok Ghamandra and Ochali Adda was 4/5 miles; that it is also case of PW.2 that on the same day he returned to his home, therefore, it does not appeal to common sense as to why he walked more than 4/5 miles on the day of occurrence; that the evidence of wajtakkar furnished by Muhammad Hussain (PW.3) also does not connect the appellant with the commission of crime as the evidence of wajjtakkar was introduced by the complainant in para 4 of the private complaint wherein name of Muhammad Rafique (appellant) does not find mention ed; that similarly in his cursory statement Muhammad Hussain (PW.3) did not disclose the name of Muhammad Rafique (appellant) to the extent of evidence of wajtakkar; that though while appearing before the learned trial court PW.3 named the appellant to the extent of the evidence of wajtakkar but he was confronted with the contents of his earlier statement (Exh.DA) recorded in cursory evidence and the improvement was brought on the record; that it was alleged in the FIR that the appellant was of loose character and he compelled Hafiz Mehtab Ahmad (deceased) to allow him carnal intercourse and it was also alleged in the FIR that the appellant had committed the murder of Hafiz Mehtab Ahmad (deceased) after sodomizing him but no semen was detected on the anal swabs sent to the Chemical Examiner and as such the very reason assigned by the complainant against the appellant for committing the murder of Hafiz Mehtab Ahmad could not be proved; that the medical evidence does not advance the case of the prosecution as no injury on the dead body was observed during the course of post mortem examination; that recovery of a cycle (P.4) at the instance of the appellant purportedly of Hafiz Mehtab Ahmad (deceased) which was taken into possession vide recovery memo (Exh.CW .9) is also full of doubts for several reasons: firstly there is no allegation in the private complaint that when Hafiz Mehtab Ahmad (deceased) left his house he was on a cycle; secondly according to the recovery memo (Exh.CW .9) as well as statements of Muhammad Sher SI (CW.7) and Muhammad Ramzan 388/C (CW.8) the cycle was recovered on 20.06.2009 whereas Sher Muhammad (PW.2) stated during his cross- examination that at Uchali Adda some people informed the police that bicycle of Hafiz Mehtab Ahmad (deceased) was available in the house of Muhammad Rafique (appellant) and on this information Muhammad Rafique (appellant) was nominated as accused in the FIR who was arrested by the Police on the same night and cycle was also recovered; that viewing from all angles the prosecution case is doubtful in nature and the appellant is entitled to the benefit of doubt not as a matter of grace but as of right.
5. On the other hand, learned Deputy District Public Prosecutor assisted by learned counsel for the complainant opposes this appeal on the grounds that Muhammad Rafique (appellant) is nomi nated in the FIR as well as the private complaint; that the complainant has alleged a strong motive against the appellant for committing the murder of Hafiz Mehtab Ahmad (deceased) as the appellant who was not enjoying good character had been compelling Hafiz Mehtab Ahmad to allow him to commit carnal intercourse; that it is also case of the complainant in the FIR that one month prior to the occurrence Hafiz Mehtab Ahmad had complained the complainant that the appellant had stopped cycle of Hafiz Mehtab and compelled him for carnal intercourse; that Hafiz Mehtab Ahmad was seen alive lastly in the company of the appellant and his co-accused by Sher Muhammad (PW.2); that the evidence of wajtakkar was also furnished against the appellant by Muhammad Hussain (PW.3); that cycle (P.4) belonging to Hafiz Mehtab Ahmad (deceased) was also recovered at the instance of the appellant which was taken into possession vide recovery memo (Exh.CW .9); that the said cycle was identified by Ahmad Khan complainant (PW.1) through identification memo (Exh.CW .10) and as such the recovery of cycle at the instance of the appellant sufficiently connects him with the commission of crime; that prosecution case is also supported by the medical evidence furnished by Dr. Sher Afzal (CW.5) who conducted potency test of the appellant and Dr. Ghulam Nabi (CW.6) who conducted post mortem examination on the dead body of Hafiz Mehtab Ahmad (deceased); that the prosecution has successfully brought home guilt against the appellant to the hilt and there is no merit in this appeal.
6. I have heard the learned counsel for the appellant as well as the learned Depu ty District Public Prosecutor for the State assisted by learned counsel for the complainant and scanned the record with their able assistance.
7. The prosecution case has been discussed in detail in para 2 above. The same is not being reproduced here to avoid repetition. Admittedly the complainant is not an eye-witness and he repor ted this matter on the basis of information imparted to him by his wife namely Mst. Kaniz Fatima (PW.5). Since there is no direct evidence and prosecution case hinges on the circumstantial evidence, therefore, utmost care and caution is required for reaching at a just decision of the case. It is settled by now that in such like cases every circumstance should be linked with each other and it should form such a continuous chain that its one end touches the dead-body and other neck of the accused. But if chain link is missing then its benefit must go to the accused. In this regard, guidance has been sought from the judgment of the apex Court of the country reported as "Asadullah and another v. State and another " (1999 SCMR 1034 ). Keeping in view the guidelines given by the Hon'ble Supreme Court of Pakistan, I would discuss the evidence, produced by the prosecution in this case. Prosecutio n produced the following pieces of evidence to connect the appellant with the commission of crime:-
(a) Last Seen
(b) W ajtakkar
(c) Motive
(d) Medical Evidence (d)(sic.) Recovery of Cycle Now I take up each piece of evidence separately .
Last Seen : So far as the evidence of last seen is concerned, the same was furnished by Ahmad Khan complainant (PW.1), Sher Muhammad (PW.2) and Mst Kaniz Fatima (PW.5). The complainant categorically stated during his cross-examination that when the accused called his son Hafiz Mehtab Ahmad, he (complainant) was not present in his house. Similarly Mst Kaniz Fatima (PW.5) while appearing before the learn ed trial court did not name the appellant in any context. So far as the testimony of Sher Muhammad (PW.2) is concerned the same is contradicted by the stance taken by the complainant in his cross-examination where he affirmatively responded to the suggestion that Muhammad Rafique (appellant) had no speaking terms with him and in the circumstances there was no occasion for Hafiz Mehtab Ahmad (deceased) to go with the appellant, therefore, no reliance can be placed on the evidence of last seen furnished by the prosecution.
Wajtakkar: The evidence of wajtakkar furnished by Muhammad Hussain (PW.3) also does inspire confidence as the evidence of wajjtakkar was introduced by the complainant in para 4 of the private complaint (Mark-A) wherein name of Muhammad Rafique (appellant) does not find mentioned. Moreover , in his cursory statement Muhammad C Hussain (PW.3) did not disclose the name of Muhammad Rafique (appellant) to the extent of evidence of wajtakkar . Though while appearing before the learned trial court Muhammad Hussain (PW.3) named the appellant in this respect but he was confronted with the contents of his earlier statement (Exh.DA) recorded in cursory evidence and the improvement was brought on the record. It is well settled by now that when a witness improves his version to strengthen the prosecution case no reliance can be placed on such statement.
Motive: It was alleged in the FIR that Muhammad Rafique (appellant) was of loose character and he compelled Hafiz Mehtab Ahmad (deceased) to allow him carnal intercourse. It was also alleged in the FIR that the appellant had committed the murder of Hafiz Mehtab Ahmad (deceased) after sodomizing him but as per statement of Dr. Ghulam Nabi (CW.6) no semen was detected on the anal swabs sent to the Chem ical Examiner and as such the very reason assigned by the complainant against the appellant for committing the murder of Hafiz Mehtab Ahmad could not be proved. Moreover , the appellant was acquitted of the charge under section 377, P.P.C. but no appeal against acquittal of the appellant from the said charge was filed either by the complainant or by the State which suggests that the prosecution felt content with the acquittal of the appellant from the charge of sodomy .
Medical Evidence : Dr. Ghulam Nabi (CW.6) who conducted post mortem examination on dead body of Hafiz Mehtab Ahmad (deceased) did not observe any injury on the dead body and in the opening sentence of opinion stated that it was drowning which led to asphyxia which led to cardiopulmonary arrest which led to death. The said doctor also stated during his cross-examination that according to the report of chemical semen is not detected in the anal swabs. It was brought on record through the cross-examination on the said doctor conducted by learned counsel for the complainant that on the examination, findings may be present which indicate penetration but these may not be consistent with the penetration of penis until and unless anal swabs are positive for semen. Therefore, the medical evidence demolishes the prosecution case instead of advancing the same.
Recovery of Cycle: Much stress was laid by learned coun sel for the complainant as well as learn ed Deputy District Public Prosecutor for the State on recovery of a cycle (P.4) purportedly of Hafiz Mehtab Ahmad (deceased) at the instance of the appellant but to my mind the said recovery is also tainted with doubts for several reasons: firstly there is no allegation in the private complaint that when Hafiz Mehtab Ahmad (deceased) left his house he was on a cycle; secondly according to the recovery memo (Exh.CW .9) as well as statements of Muhammad Sher SI (CW.7) and Muhammad Ramzan 388/C (CW.8) the cycle was recovered on 20.06.2009 whereas Sher Muhammad (PW.2) stated during his cross-examination that at Uchali Adda some people informed the police that bicycle of Hafiz Mehtab (deceased) was available in the house of Muhammad Rafique (appellant) and on this information Muhammad Rafique (appellant) was nominated as accused in the FIR who was arrested by the Police on the same night and cycle was also recovered. Therefore, I hold that it is not safe to rely on the recovery of cycle at the instance of the appellant, which even otherwise is merely a corroborative piece of evidence and relevant only when the other evidence inspires confidence, but the situation is otherwise in this case.
8. There is another important aspect of this case. Four other persons namely Imran Haider , Jameel Iqbal, Muhammad Asif and Mehboob Hussain were also indicted and tried along with the appellant. Evidence of last seen and wajtakkar was available against all these accused but they were acquitted of the charges while extending them benefit of doubt and no appeal against their acquittal was filed either by the complainant or by the State, therefore, the question for determination before this Court is that whether the evidence which has been disbelieved qua the acquitted co-accused of the appellant can be believed against the appellant. In this regard, I am guided by the judgment of the Hon'ble Supreme Court of Pakistan reported as "Iftikhar Hussain and another v. State " (2004 SCMR 1 185), wherein at 1 196, 1 197, it has been held as under:- "17.... It is true that principle of falsus in uno falsus in omnibus is no more applicable as on following this principle, the evidence of a witness is to be accepted or discarded as a whole for the purpose of convicting or acquitting an accused person, therefore, keeping in view prevailing circumstances, the Courts for safe administration of justice follow the principle of appraisal of evidence i.e. sifting of grain out of chaff i.e. if an ocular testimony of a witness is to be disbelieved against a particular set of accused and is to be believed against another set of the accused facing the same trial, then the Court must search for independent corroboration on material particulars as has been held in number of cases decided by the supe rior Courts. Reference may be made readily to the case of Sarfraz alias Sappi and 2 others v . The State (2000 SCMR 1758 ), relevant para there from is reproduced herein below thus: The proposition of law in criminal administration of justice namely whether a common set of ocular account can be used for recording acquittal and conviction against the accused persons who were charged for the same commission of offence is an over-worked proposition. Originally the opinion of the Court was that if a witness is not coming out with a whole truth his evidence is liable to be discarded as a whole meaning thereby that his evidence cannot be used either for convicting accused or acquitting some of them facing trial in the same case. This proposition is enshrined in the maxim falsus in uno falsus in omnibus but subsequently this view was changed and it was held that principle enshrined in this maxim would not be applicable and testimony of a witness will be acceptable against one set of accused though same has been rejected against another set of accused facing same trial. However , for safe administration of justice a condition has been imposed namely that the evidence which is going to be believed to be true must get independent corroboration on material particulars meaning thereby that to find out credible evidence principle of appreciation of evidence i.e. sifting chaff out of grain was introduced as it has been held in the cases of Syed Ali Bepari v. Nibaran Mollah and others (PLD 1962 SC 502), Tawaib Khan and another v. The State (PLD 1970 SC 13), Bakka v. The State (1977 SCMR 150), Khairu and another v. The State (1981 SCMR 1136), Zaiaullah v. State (1993 SCMR 155), Ghulam Sikandar v. Mamaraz Khan (PLD 1985 SC 11), Shahid Raza and another v. The State (1992 SCMR 1647 ), Irshad Ahmad and others v. The State and others (PLD 1996 SC 138 ) and Ahmad Khan v . The State (1990 SCMR 803 )."
I have made utmost efforts with the assistance of learned counsel for the parties, specially the learned Deputy District Public Prosecutor and learned counsel for the complainant but have not been able to find out any such corroboration.
9. Sequel of the above discussion is that the prosecution case is doubtful in natur e and the appellant is entitled to the benefit of doubt not as a matter of grace but as of right. In "Ayub Masih v. The State " (PLD 2002 SC 1048 ), at page 1056 the Hon'ble Apex Court has been pleased to observe as under:- "... It is hardly necessary to reiterate that the prosecution is obliged to prove its case against the accused beyond any reasonable doubt and if it fails to do so the accused is entitled to the benefit of doubt as of right. It is also firmly settled that if there is an element of doubt as to the guilt of the accused the benefit of that doubt must be extended to him. The doubt of course must be reasonable and not imaginary or artificial. 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". In simple words it means that utmost care should be taken by the Court in convicting an accused. It was held in The State v. Mushtaq Ahmad (PLD 1973 SC 418) that this rule is antithesis of haphazard approach or reaching a fitful decision in a case. It will not be out of place to mention here that this rule occupies a pivotal place in the Islamic Law and is enforced rigorously in view of the saying of the Holy Prophet (p.b.u.h) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent."
10. For the foregoing reasons, this appeal is allowed. Conviction and sentence awarded to the appellant vide judgment dated 02.09.2010 passed by the learned Sessions Judge, Khushab is hereby set aside. The appellant is acquitted of the charges levelled against him while extending him benefit of doubt. He is in jail. He be released forthwith if not required in any other case.