ANWAARUL HAQ PANNUN, J.---Through the titled appeals under section 410, Cr.P.C., appellants Muhammad Usman and Muhammad Faraz have challenged the vires of judgment dated 22.12.2016 passed, on the conclusion of trial, in case FIR No.253/13 dated 15.12.2013, for offences under sections 302 and 34, P.P.C., registered at Police Station Head Rajkan, District Bahawalpur by learned Additional Sessions Judge/Judge Juvenile Court, Bahawalpur whereby, they have been convicted and sentenced as under:- Under section 302(b), P.P.C.
Imprisonment for life each and to pay compensation of Rs.1,00,000/- each payable to the legal heirs of deceased under section 544-A, Cr.P.C. and in case of default, to undergo six months' S.I.
Benefit of section 382-B, Cr.P.C. was extended to the appellant.
2. The prosecution's story, unfolded through FIR (Ex.PA/1) lodged on the written complaint (Ex. PA) of complainant Abdul Rauf (PW-2) on 15.12.2013, is to the effect, that during the preceding night, in order to avail his water turn, at about 3:30 a.m., he along with Muhammad Zahid son of Muhammad Yousaf (PW-3) and Muhammad Abbas son of Jan Muhammad were proceeding towards his fields for irrigation of his crops, when they reached near the sugarcane crop, they heard hue and cry and in the light of a torch witnessed that Muhammad Usman and Muhammad Faraz (appellants), being armed with hatchets, were giving hatchet blows at the neck, face and head of Rasheed alias Sunni (deceased) whereas Faisal (since P.0) had caught hold of the deceased from his legs, on seeing them, Usman raised Lalkara that no one should come closer to them as they were teaching a lesson to the deceased for quarrelling with them, Usman gave a hatchet blow which had hit the deceased on left side of his neck, Muhammad Faraz had given a hatchet blow which hit on his head, the accused persons repeated their blows, although the witnesses tried to rescue the deceased but due to the threats of the accused persons, they could not interfere, the deceased Rashid alias Sunni succumbed to his injuries at the spot. The accused persons succeeded in making their escape good with their weapons.
3. Registration of the case after its usual investigation encapsulated into report under section 173, Cr.P.C. which was duly submitted 'before the learned trial court, the appellants, after supplying them with the copies of incriminating material under section 265(C), Cr.P.C., were charged sheeted to which they denied and pleaded not guilty, while professing their innocence and claiming trial, the prosecution was directed to produce evidence.
4. It is pertinent to mention over here that accused Faisal absented himself, therefore, he has been declared proclaimed offender in this case during the trial.
5. The investigation was conducted by Shabbir Ahmad S.I and Muhammad Akbar S.I (PW-8), while furnishing secondary statement, identified his hand writing as well as signatures on the crime report (Bx.PA/1), injury statement (Ex.PG), inquest report (Ex.PF), recovery memo (Ex.PN) pertaining to battery (P-7), rough site plan (Ex.PQ) and statements of the PWs recorded under section 161, Cr.P.C. Ocular account has been furnished by Abdul Rauf complainant (PW-2) and Muhammad Zahid (PW-3).
6. The prosecution has produced as many as eight witnesses besides tendering, in evidence, reports of Punjab Forensic Agency, Lahore regarding Serology Analysis Ex. PR and Ex.PS.
7. Dr. Muhammad Asif Manzoor (PW-6), stated that on 15.12.2013, he was posted as Medical Officer at Rural Health Centre, Head Rajkan, Ahsan Nazir constable 2163/C handed over to him inquest report Ex.PF, injury statement as Ex.PG alongwith dead body of Mr. Rashid alias Sunni son of unknown, aged 22/23 years, caste unknown, resident of unknown whereafter he conducted post mortem over the same, at 03:00 p.m., brought to him by the Police Constable Ahsan Nazir 2163/C, P.S Head Rajkan, Bahawalpur and identified by Nadeem lqbal constable 2046/C and Ahsan Nazir 2163/C and observed the following injuries on his person:-
1. Multiple injuries were seen on head as follows:- i) There was an incised wound on anterior of head, transverse lying measuring about 8 cm x 2 cm, bone was also cut, brain matter visible and damage, about 11 cm from left eye brow. ii) There was an incised wound in sagittal direction measuring about 7 cm x 3 cm, cutting bone, 9 cm from left eye, anteriorly crossing injury No. (i). iii) There was an oblique incised wound measuring 9 cm x 2 cm, bone cutting up brain membranes, about 12 cm from right ear. iv) There were three incised wound near left ear measuring 8 cm x 2 cm, 7 cm x 2 cm, 6 cm x 2 cm, all were hone cutting up to brain matter. v) There was an incised wound measuring about 4 cm x 4 cm bone not cutting, flap of scalp was attached at posterior and about 6 cm from left ear. vi) There was an incised wound measuring 6 cm into 2 cm, bone was cutting, 3.5 cm from left car on left side of head. vii) There was an incised wound measuring 6 cm x 2.5 cm, bone is cutting up to brain matter, 2.5 cm from left ear. viii) There was also a small incised wound near left ear which was not bone deep.
2. There was an incised wound on left cheek measuring about 8.5 cm x 2 cm, about 2 cm from left eye and 4 cm from nose, cutting muscle and underlying bones.
3. There were multiple incised wound on left side, of neck collectively measuring about 13 cm x 15 cm cutting underlying muscles, major addresses upto cervical vertebra (half neck was almost cut).
4. There was an incised wound measuring about 8 cm x 3 cm situated on left hand dorsal aspect of base of thumb, underlying muscle and bones were cut, thumb of left hand was hanging freely.
Initial Final Opinion After thorough external and internal postmortem examination of head body, this was of my opinion that injuries Nos.1 and 3 were caused by sharp edge instrument causing neurogenic shock and acute hemorrhagic shock (damaging vital organs) resulting in the form of death and these injuries were sufficient to cause death in ordinary course of nature, however, final opinion will be given after report from the Chemical Examiner. All these injuries were ante-mortem in nature and caused by sharp edge weapon.
Final Opinion: After receiving the report from the office of chemical examiner PFSA Lahore, I am of the opinion that the cause of death of neurogenic shock and acute hemorrhagic shock as mentioned in my initial Opinion.
8. He further deposed that on 18.12.2013, at about 8:30 a.m., Ahsan Nazir 2163/C brought before him Faisal Qureshi son of Allah Din (arrested later on), caste Qureshi, caged about 13/14 years, for conducting medical examination.
History He was labourer by profession. He came along with his friends from Yazman, they walked together from Chak No.16/DNB.
According to him one of the two friends killed Mr. Rashid alias Sunni after that he conducted act of sodomy with him. He also told that previously he was made subject of sodomy by some people.
External Examination External examination done in knee elbow position.
On external perianal examination there was no laceration, no tearing seen. Mild redness seen at 12 o'clock position. On inspection sphincter was loose.
Digital Examination External sphincter was loose, no pain on passing index finger. External swabs 03 in number were taken.
Internal Examination Referred to THO Yazman for proctoscopy and to take internal swabs.
Report From the Surgeon Having OPD No.194/5682 at 12:30 p.m. Proctoscopy done under general anesthesia. Following findings noted:-
(a) Anal canal was loose and lax.
(b) No mark of injury seen.
(c) Three internal swabs were taken.
Opinion After external examination and receiving report from the surgeon, I was of the opinion there was nothing to suggest that act of sodomy was conducted, however, final opinion will be given after report of chemical examination.
9. When examined under section 342, Cr.P.C., the appellants denied very bit of incriminating material so produced and while replying the question that as to why this case against them and why the prosecution witnesses have deposed against them, they have replied as follows:- Muhammad Usman "I am innocent in this case. I have not committed murder of Rashid alias Sunni. Dead body was found in sugar cane crops which belong to complainant. The complainant lodged the false and frivolous FIR against me to save his own skin. I have been involved in this case due to clash of residential Ahata situated in Chak No.16/DNB Tehsil Yazman District Bahawalpur. Complainant want to snatch this land from my family involved me falsely in this case."
Muhammad Faraz I am innocent in this case. I have not committed murder of Rashid alias Sunni. 'Dead body was found in sugar cane crops which belong to complainant. The complainant lodged the false and frivolous FIR against me to save his own skin.
10. The appellants neither opted to appear under section 340(2), Cr.P.C. nor have produced any defence evidence.
11. Learned trial court, on conclusion of the trial, proceeded to convict the appellants as aforesaid. Hence, the titled appeal.
12. Learned counsel for the appellants submits that it was an un-witnessed night occurrence; that identity of the appellants in the so called torch light is impossible; that no motive has come on surface; that the recoveries have been planted; that the prosecution has failed in proving its case against the appellants. At the end, he has prayed for acquittal of the appellants.
13. Conversely, learned Assistant District Public Prosecutor General appearing for the State has contended with vehemence that the appellants are named in the FIR with specific roles of committing the murder of the deceased; that the recoveries of weapons of offence have been effected; that identity of the appellants has fully been established in the light of the torch which has been taken into possession by the investigating officer; that the impugned judgment does not warrant interference by this Court.
14. Arguments heard. Record perused.
15. As per prosecution's version, the complainant Abdul Rauf (PW2), Muhammad Zahid (PW-3) and Muhammad Abbas (given up) are the eye-witnesses of the occurrence, who, while deposing in the court, had claimed that they had seen the occurrence in the torch light from a distance of 8 Karam i.e. 44 feet. The distance between the eye-witnesses and the assailants is duly established from another source i.e. scaled site plan (Ex.PE/1), prepared by Muhammad Shabbir (PW-5) who, during cross-examination, deposed as under:- "It is correct that the distance between point 1 and point 2 at about 36 feet. It is correct that in point-2 the difference between points Nos.1 and 2 is written as 8-Karam. One Karam is equal to 5-1/2 feet.
16. Now, the moot point requiring its determination, is, whether it will he safe to rely upon the evidence of PW-2 and 3 who deposed that they had seen the occurrence taken place at 03:30 a.m., in the middle of a 'Khaal', away from the village Abadi admittedly surrounded by fully grown up sugarcane crop standing on both sides of it, in the darkness of a chilling winter season night, from a distance of 44 feet in the light of a torch. Moreover, assembling of all the PWs at the place of occurrence, during the dead hours of night, who are neither related to each other nor had a common business, also appears to be doubtful. The over anxious photographic account of the occurrence by the PWs vis-a-vis, the weapon of offence, number and local of injuries allegedly caused by the appellants to the deceased, witnessed from a distance of about 44-feet, appears to be a self-harming maneuver, improbable and preposterous when the occurrence had taken place in a `Khaal' surrounded by sugarcane fields from both sides. During the month of December, the sugarcane crop, stands tall in the fields along with its spreading long leafs like wings of an eagle taking off for a flight creates a blur in the smooth and uninterrupted vision of a person out of the crop and more so, in the small alley surrounded by thick and tall sugarcane crop. Therefore, I am not inclined to accept the claim of the prosecution witnesses of seeing the occurrence taken place in a watercourse surrounded by tall with sprawling leaves sugarcane crop from a distance of 44-feet in the light of torch.
17. It is settled by now that identification of the accused through light of torch is a weak type of source and is unsafe to be relied upon. Reliance in this regard can be placed on the case reported as The State v. Hakim Ali and 3 others (1996 PCr.LJ 231) wherein it has been held as under:- "Evidence relating to identification of accused in the torch light has always been treated as weak piece of evidence by superior Courts. It was held by a Division Bench of this Court in the, case of Muhammad and others v. The State 1968 PCr.LJ 590 that the identification of the assailants by witness on dark night through his torch may lead to the possibility of mistaken identity and particularly in view of the previous enmity existing between the parties. In Suwali v.The State 1982 PCr.LJ 808, a Division Bench of this Court declared identification by flash of torch as highly suspicious. In the case of the State v. Fazal Muhammad and another 1970 PCr.LJ 633 it was held that the identification of the accused in the light of torch was never considered as sufficient piece of evidence."
18. The occurrence had allegedly taken place during the intervening winter night of 14/15.2013 at 03:00 a.m., therefore, extreme cold can be well imagined. The matter was reported to the police on 15.12.2013 at 08:30 a.m. Shabbir Ahmad S.I, after inspecting the place of occurrence, prepared inquest report (Ex.PF) perusal whereof indicates that the mouth of the deceased was found open at that time meaning thereby, that the dead body remained unattended which was brought to the hospital for conducting post mortem examination over it under the surveillance of Ahsan Nazir 2163/C and identified by Nadeem Iqbal 2046/C (PW-7) and not by a private person. Neither the complainant nor any other PW either had accompanied the police officials escorting the dead body of the deceased to the hospital for post-mortem examination nor they had identified the same at that time. The so called promptitude in lodging the FIR has been smashed by PW-6 by stating that although he received the dead body of the deceased at 03:30 A.M but he had to wait for the police documents for conducting the post-mortem examination and on request of police he conducted the postmortem of deceased after 12 hours. The post-mortem examination over the dead body of the deceased was conducted on 15.12.2013 at 03:00 p.m., i.e after about 12 hours of the occurrence. Dr. Muhammad Asif Manzoor (PW-6), who conducted the post-mortem examination over the dead body of the deceased, has deposed as under:- "It is correct that I have received the dead body of deceased Rashid alias Sunni through Ahsan Nazir 2163/C at the time of postmortem. I received the dead body of deceased at 03:30 a.m. and conducted postmortem of dead body at 03:00 p.m. It is correct that on postmortem report in column of death it is written dead body of deceased was received at 03:30 a.m. as per police record. It is correct that I had not mentioned on postmortem report time of receiving of dead body. I conducted the postmortem of deceased after 8/9 hours after receiving the dead body. I cannot tell the exact time of receiving of dead body of deceased. It is correct that I have conducted the postmortem of deceased at about 12 hours after the death. I have not written the FIR number on postmortem report as there is no column in postmortem report for writing of FIR number. It is correct that the police has identified the dead body of deceased by name because no relatives of deceased was present.---It is correct that complainant of this case Abdul Rauf did not come with dead body and I have not mentioned the name of complainant in inquest report.---- I waited for documentation of police and after receiving complete documentation from police and on request of police conducted the postmortem of deceased after 12 hours. I have received documents from the police at about 03:00 p.m. and started autopsy.----After completing postmortem I handed over the dead body of deceased to Ahsan Nazir 2163/C and Sarfraz Ahmad 23/C at about 04:00 p.m. It is correct that no private person was present with them at that time. It is correct that clothes of deceased were not stained with mud at the time of receiving dead body.----Dead body was un-identified when that was brought to me. Rigor mortis was in developing stage when dead body was brought to me."
The above excerpts from the deposition of PW-6 at least disclose that the post-mortem examination over the dead body of the deceased was conducted after unusual delay of 12 hours. The unexplained delay of 12-hours in conducting the post-mortem examination on the dead body of the deceased points out a real possibility that the time had been E consumed by the local police and the complainant party in order to procure and plant the eye-witnesses after cooking up a false story for the prosecution. A reference can be made to cases titled "Muhammad Ilyas v. Muhammad Abid alias Billa and others" (2014 SCMR 1698), "Faqeer Muhammad v.
Shahbaz Ali and others" (2016 SCMR 1441) and "Muhammad Ilyas v. Muhammad Abid alias Billa and others"
(2017 SCMR 54) wherein it has been held as under:- "Post-mortem Examination of the dead body of Muhammad Shahbaz deceased had been conducted after nine hours of the incident which again was a factor pointing towards a possibility that time had been consumed by the local police and the complainant party in procuring and planting eye-witnesses and cooking up a story for the prosecution."
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 F post mortem but the medical evidence by itself does not raise finger towards any specific culprit. The ocular account has already been discarded by this Court and, thus, the medical evidence lends no support P to the ocular version.
19. According to PW-2, "on seeing them, Usman raised Lalkara that no one should come closer to them as they were teaching a lesson to the deceased for quarrelling with them" was stated to be a motive behind the occurrence. During the investigation, one of the accused Paisal, after his arrest, was got medically examined on 18.12.2013, at about 8:30 a.m by the Medical Officer (PW-6) and while deposing the history, this PW has stated that "According to him one of the two friends killed Mr. Rashid alias Sunni after that he conducted act of sodomy with him. He also told that previously he was made subject of sodomy by some people." This PW, after consulting the report of the surgeon, has opined that there was nothing to suggest that the act of sodomy was committed with him. He although reserved his final opinion till the receipt of report of Chemical Examiner report which has never been given meaning thereby that the prosecution has been vacillating being not sure, about the motive behind the occurrence. Nothing could have been brought on record during the course of investigation about the previous quarrel taken place between the accused and the deceased. All the above facts clearly G establish that the claim of the prosecution's witnesses regarding having seen the occurrence is nothing but a pretention, hence, I hold that the occurrence was an unwitnessed one.
20. So far as the recovery of alleged weapons of offence is concerned, suffice it to observe that the appellants were arrested on 23.12.2013 and allegedly on their pointing out, recoveries of two hatchets (P-1 and P-2), which were taken into possession through recovery memo Ex.PD and Ex.PE in the presence of witnesses Muhammad Zahid (PW-3) and Muhammad Abbas (given up), were effected from the sugarcane fields by way of their digging out the earth but the same, in the given facts of the case, does not appeal to the logic. If the claim of witnesses regarding making of their hue and cry, attracting a number of persons from the village and then the making of search about the accused is believed to be true then it can more safely be presumed that the appellants, being perplexed, full of anxiety and fear, had no opportunity to avail for concealing the hatchets underneath the soil. It was also amazing and unbelievable that how the hatchets, which were concealed in a sugarcane crop, during the night hours, in a state of fear, of their own safety, could have been straight away got recovered with exactitude pointing out the relevant place of their concealment. Even otherwise, in a criminal case, if the ocular account is dis-believed by the court after judicial scrutiny, mere proving of recovery, which only renders corroboration to the ocular account, will not be sufficient to record or maintain the conviction. It is trite law in the criminal cases that where the prosecution relies upon the direct evidence in the form of ocular account, if the same is disbelieved by the court, medical evidence and recoveries, if any, which otherwise only render corroboration to the ocular account are of no avail to the prosecution, for securing conviction.
21. Having scanned the entire prosecution's 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."
22. For what has been discussed above, since the prosecution fails in proving its case beyond shadow of doubt, hence, these appeals are allowed, the convictions and sentences of appellants Muhammad Usman and Muhammad Faraz are set aside and they are acquitted of the charge by extending the benefit of doubt to them.
They are directed to be released forthwith from jail, if not required to be detained in connection with any other criminal case.