Aalia Neelum, C.J: The appellants-Master Riaz Ahmed son of Muhammad Shafi and Asif alias Aasoo son of Muhammad Sadiq, both Jatt by caste and residents of village Dugree Hariyan, Tehsil Pasrur, District Sialkot, have challenged the judgment dated 26.02.2019 passed by the learned Additional Sessions Judge, Pasrur District Sialkot, in a private complaint filed under sections 302, 109, 148 & 149 PPC, titled "Yaseen Farooq Vs. Muhammad Shahbaz alias Gogi," along with the State case bearing FIR No.241/2015 dated 30.07.2015 under sections 302, 148 & 149 PPC registered at P.S. Phalora, Tehsil Pasrur, District Sialkot, whereby the trial court convicted the appellants-Master Riaz Ahmed and Asif alias Aasoo under Section 302 (b) PPC and sentenced them to life imprisonment.
The appellants were also ordered to pay Rs.1,00,000/- each as compensation to the legal heirs of the deceased under Section 544-A of Cr.P.C. In case of default in payment, they would undergo a further six months of simple imprisonment. The benefit of Section 382-B of Cr.P.C. was also extended in favor of the appellants.
2. Feeling aggrieved by the judgment of the trial court, the appellants, Master Riaz Ahmed and Asif alias Aasoo, have assailed their conviction by filing Criminal Appeal No.14068 of 2019. It is pertinent to mention here that the complainant also filed Crl. Revision No. 16319/2019 for enhancement of the sentence awarded to the appellants and P.S.L.A. No. 16318/2019 against the acquittal of respondents No. 1 to 6. As all the matters arise from the same judgment of the trial court, these are being disposed of through a consolidated judgment.
3. The prosecution's story, as alleged in the private complaint (Ex.PC) of Yaseen Farooq (PW-1), the complainant, is that on 30.07.2015 at about 10:40 a.m., Yaseen Farooq (PW-1), the complainant, alongwith Ghulam Haider (given up PW) and Muhammad Ijaz (PW-2), was sowing paddy ( )in their fields. His (PW-1) brother Muhammad Naeem (the deceased) was coming to provide them water, and when he reached near them on the main road, a black color Car XLI bearing registration No.LE-5042 and one motorcycle Honda 125, in which (1) Muhammad Shahbaz alias Gogi (co- accused since acquitted) armed with a pistol 30-bore, (2) Muhammad Afzal alias Abbi (co- accused since acquitted) armed with a pistol 30-bore, (3) Muhammad Asif alias Aasoo (the appellant No.2) armed with a pistol 30 bore, (4) Master Riaz Ahmed (the appellant No.1) armed with a pistol 30- bore, (5) Naeem Ahmed alias Kala (co-accused since acquitted) armed with a firearm, alongwith two unknown accused persons armed with firearms, were boarding, arrived at the scene. Master Riaz Ahmed (the appellant No.1) raised a lalkara to murder Naeem. Upon hearing the voice of the lalkara, Yaseen Farooq (PW-1), the complainant, alongwith the witnesses, reached the spot. In their view, Muhammad Afzal alias Abbi (co-accused since acquitted) made a straight fire with his 30-bore pistol, which hit Naeem, the brother of the complainant, on his right leg. The second fire was made by Muhammad Shahbaz alias Gogi (co-accused since acquitted), which hit the right thigh of Naeem, causing him to fall. Asif alias Aasoo (the appellant No.2) also fired with his pistol, which hit Naeem on both legs. The remaining accused also fired with their weapons; Master Riaz Ahmed (the appellant No.1) fired straight with his 30-bore pistol, which hit Naeem on his right leg, leaving the brother of the complainant smeared with blood. The motive behind the occurrence was a land dispute between the parties.
4. Upon receiving information about the occurrence, Jamil Akhtar S.I. (CW-7), the investigating officer, reached RHC Chawinda, where Yaseen Farooq (PW-1), the complainant, presented a written complaint (Ex.PA) to him (CW-7). Thereupon, he (CW-7) incorporated police proceedings and referred it to the police station for the registration of a formal FIR through Maqbool Ahmad 958/C.
After receiving the written complaint (Ex.PA), Asghar Ali A.S.I. (PW-5) chalked a formal FIR (Ex.PJ).
Following the registration of the case, the investigation was conducted by Jamil Akhtar, S.I. (CW-7), who, having found the accused/appellants guilty, prepared a report under section 173 of Cr.P.C.
Dissatisfied with the outcome of the investigation, as the investigating officer appeared to be in league with the accused and declared some accused innocent, the complainant (PW-1) was compelled to file a private complaint (Ex.PC). After recording the cursory evidence of the complainant (PW-1) and reviewing the record, all the accused persons were found connected with the commission of the offence, leading to their summons to face the charge. Subsequently, the trial court formally charged the appellants on 03.05.2016, to which they pleaded not guilty and requested a trial. In support of their version, the complainant (PW-1) produced eight (08) witnesses, while the remaining witnesses were summoned as court witnesses, i.e., CW-1 to CW-7.
5. After the closure of prosecution evidence, the appellants were also examined under Section 342 Cr.P.C. Neither of them opted to appear as his own witnesses in terms of Section 340(2) Cr.P.C. nor did they opt to produce any evidence in their defence. In response to a particular question of why this case was against them and why the PWs deposed against them, the appellant No.1-Master Riaz Ahmed made the following deposition: - "I am innocent. Case is false. PW's are inter-se related and interested and inimical against me, who have concocted false story against me just to throw a wider net as the occurrence was unseen one. During all the investigation story of complainant declared false and concocted I was declared innocent. Complainant has some previous grievances against my family which were in the mind of complainant and his family as occurrence was not seen by anyone, so under the influence of all the family member complainant & his family concocted a false story but during investigation not only their story of involving me and other family members at the spot of occurrence was falsify and declared against the fact by declaring that whole the occurrence of firing and killing of deceased was the outcome of one person at the spot by declaring me and all the other members of my family be innocent and not participating in the said occurrence but also by evidence collected at the spot in the form of crime empties. Which was declared to be fired by a single weapon. Moreover, alleged story of conspiracy which was not alleged in the FIR rather same was concocted at a very belated stage, was also falsified during investigation by declaring unnatural, false and un-corroborative."
Whereas appellant No.2-Asif alias Aasoo made the following deposition: - "There was party friction in our village and my co-accused-accused Muhammad Riaz Ahmad is also my cousin who is sitting Chairman of Union Council and I remained his supporter forever.
Neither I have any criminal or civil litigation with the complainant party nor have any animosity against them as well as the deceased. I have been falsely implicated in this case being close relative of co-accused-accused Master Riaz Ahmad. I am innocent in this case. I.O. with the connivance of others wrongly challaned me in this case."
6. After recording evidence and evaluating the available evidence on record, considering the arguments advanced by both sides, the trial court found that the prosecution's version was proved beyond a reasonable doubt, which resulted in the appellants' conviction, as well as the awarding of a sentence in the afore-mentioned terms.
7. The arguments advanced by both sides have been heard, and the record has been minutely perused.
8. As per the prosecution case, the incident took place on 30.07.2015 at 10:40 a.m. in Mauza Dogri Harian, main Zafarwal Chawinda Road, falling within the territorial jurisdiction of Police Station Philora, Tehsil Pasrur, District Sialkot, which is at a distance of 11 kilometers from the place of occurrence. Yaseen Farooq (PW-1)-the complainant reported the incident through a written complaint (Ex.PA) to Jamil Akhtar S.I. (CW-7) at RHC Chawinda at 11:30 a.m., who referred the written complaint (Ex.PA) to the police station for registration of a formal FIR through Maqbool Ahmad 958/C. Asghar Ali A.S.I (PW-5) chalked out formal FIR (Ex.PJ) on the written complaint (Ex.PA) at 11:45 a.m. on 30.07.2015 through rapt No.15. Later, being dissatisfied with the investigation, Yaseen Farooq (PW-1)-the complainant filed private complaint (Ex. PC) on 26.01.2016. It is admitted fact that as per the contents of written complaint (Ex.PA), FIR (Ex.PJ), private complaint (Ex.PC), Yaseen Farooq (PW- 1)-the complainant has specifically mentioned that his brother, Muhammad Naeem, after receiving firearm injuries on his legs caused by, Muhammad Afzal alias Abbi (co-accused since acquitted), Shahbaz alias Gogi (co-accused since acquitted), Asif alias Aasoo (the appellant No.2) and Master Riaz Ahmad (appellant No.1), smeared with blood. Yaseen Farooq (PW-1)-the complainant has not mentioned in his written complaint (Ex.PA) as well as in private complaint (Ex.PC) that soon after the incident, when and how he shifted his brother to RHC Chawinda and when Muhammad Naeem (the deceased) took his last breath. Yaseen Farooq (PW-1)-the complainant and Muhammad Ijaz (PW-2), brother and paternal uncle of the deceased, respectively, had not stated that what effort they made for saving the life of Muhammad Naeem, the deceased, nor in this regard placed on the record any document revealing that medical treatment was provided to Muhammad Naeem, the deceased, soon after the incident. Yaseen Farooq (PW-1)-the complainant deposed during examination-in-chief that: - "On a green coloured pick up which we halted in the road and put my brother on the said vehicle and we were taking Muhammad Naeem at RHC Chawinda hospital and doctor told us that Naeem has expired."
During cross-examination, Yaseen Farooq (PW-1)-the complainant deposed that: - "Complaint Ex. PC was also drafted on my direction, the same was read over to me. The same is also not mentioned in complaint Ex.PC. I have not mentioned in Ex.PC as well as Ex.PA that after the occurrence we got the deceased boarded in a green colour pick up and shifted him to RHC Chawinda. I have also not mentioned in Ex.PA and Ex.PC that doctor at RHC Chawinda had confirmed the death of deceased."
Dr. Muhammad Usman Ilyas (PW-6), who conducted postmortem examination on the dead body of Muhammad Naeem, the deceased, deposed during his examination-in-chief that on 30.07.2015, he conducted postmortem examination on the dead body of Naeem at 09:30 p.m.; the mouth was semi-opened. The probable duration between injury and death was within minutes to an hour, and the time between death and postmortem examination was within 24 hours. According to the deposition of Dr. Muhammad Usman Ilyas, M.O. (PW-6), the time between death and postmortem examination was within 24 hours. If I go backward from 9:30 p.m. on 30.07.2015, it will be between 9:30 p.m. on 30.07.2015 and 9:30 p.m. on 29.07.2015. To determine the time of death, the prosecution failed to bring on the record any material evidence revealing when the deceased Muhammad Naeem took his last breath. In addition, as per the post-mortem report (Ex. PK), the autopsy was conducted at 09:30 p.m. on 30.07.2015. Till 09:30 p.m. on 30.07.2019, the FIR was not registered. Dr. Muhammad Usman Ilyas (PW6) also testified that after conducting the postmortem examination, he prepared a postmortem report (Ex.PK) and signed the police documents, including an injury statement and an application for postmortem examination; his signature on the injury statement is Ex.PJ/3 and on the application for postmortem examination as Ex.PJ/4. From the testimony of Dr. Muhammad Usman Ilyas, M.O. (PW-6), it is revealed that at the time of conducting the postmortem examination, the FIR was not signed by the doctor. This indicates that the FIR was not registered until 9:30 p.m. on 30.07.2015. If the FIR had been registered by 11:45 a.m., the doctor would have stated in his testimony that he had also attested to a copy of the FIR, along with the injury statement and application for post-mortem examination.
Dr. Muhammad Usman Ilyas (PW-6) also deposed during cross-examination that due to damage to a major vessel in the thigh, massive bleeding occurred. The incident occurred at 10:40 a.m. After sustaining injuries to the legs, Naeem, the deceased, was taken to the RHC in a car, which is 05 kilometers from the place of occurrence, and could have traveled within a period of about ten minutes to reach RHC Chawinda. Jamil Akhtar S.I. (CW.7), investigating officer, deposed during cross-examination conducted by the complainant that:- "It is correct that Chawinda is at a distance of five kilometers from the place of occurrence. "
However, no effort was made by the prosecution witnesses, i.e., Yaseen Farooq (PW-1), the complainant, and Muhammad Ijaz (PW-2), to save the life of the injured. If these witnesses had witnessed the incident, they should have taken care of the injured and provided him with first aid or at least attempted to stop the bleeding. However, no efforts of any kind were made by these two witnesses, which also suggests that they did not see the occurrence. Neither of these two witnesses tried to take the injured to the hospital so that the proper medical treatment could be given to Naeem, and the doctor could have saved him. As already stated, the incident was reported at RHC Chawinda at 11:30 a.m. through a written complaint (Ex. PA), 50 minutes after the occurrence.
Yaseen Farooq (PW-1), the complainant, reported the incident through a written application (Ex. PA) in which he neither mentioned what he and the eyewitness, did immediately after the incident nor explained how they took the deceased, who was then injured, to RHC Chawinda. Later, Yaseen Farooq (PW-1), the complainant, filed a private complaint (Ex. PC) on 22.01.2016. In this, he did not mention whether any effort was made to save the deceased, who was then injured, due to the 50- minute gap between the incident and the time of the complaint. The private complaint was filed on 22.01.2016, five months and 22 days after the incident, and during this entire period, he did not explain what happened soon after the incident or how the injured person was taken to the hospital.
The police investigation reveals that Jamil Akhtar, S.I. (CW-7), the investigating officer, was in the town of Chawinda when he received information about the incident and then arrived at the Civil Hospital, where Yaseen Farooq (PW-1), the complainant, presented a written complaint (Ex.PA). A reasonable inference, therefore, can be drawn that the deceased was not taken to RHC soon after the incident occurred. These facts indicate a delay of about 50 minutes in providing first aid to Naseem. This also raised a cloud of doubt about when the incident occurred and was reported to the police. Was it because no FIR had been registered at the time, as alleged by the prosecution, or did it come into existence after some consultations and deliberations? I also noted that the post- mortem examination report (Ex.PK) reveals that the probable time between death and post- mortem was within 24 hours. There is no plausible explanation for the 11-hours delay in conducting the post-mortem examination from the time of the FIR registration, i.e., 11:45 a.m. on 30.07.2015. This delay leads to the conclusion that the F.I.R. was recorded late and not at the time it is claimed to have been. This aspect of the matter is sufficient to cast doubt on the authenticity of the F.I.R.
9. The perusal of inquest report (Ex.CW-7/B) reveals that in column No.1, it was mentioned that dead body was lying on main road Zafarwal Chawinda near Saga Factory and in column No.3 of inquest report (Ex.CW 7/B), the date and time of receiving information of death was mentioned as "30.07.2015 at 11:15 p.m." and column No.8 of inquest report (Ex.CW-7/B) reveals that mouth was opened. The prosecution also claimed that Muhammad Naeem, the deceased, was coming to provide the prosecution witnesses with water. In this regard, Yaseen Farooq (PW-1)-the complainant deposed during cross-examination that: - "I have not mentioned in EX.PA about any cooler or vessel, etc, in which my deceased brother was coming for providing us water. I did not point out any cooler, bottle etc to the police at the place of occurrence."
Jamil Akhtar S.I. (CW-7)-the investigating officer deposed during cross-examination that: - "At the time of inspection of place of occurrence, I did not find any water cooler or container. The complainant or PW did not point out any water cooler or container at the place of occurrence and similarly did not give any reason for the absence of said articles."
So far as the ownership of the property, where the complainant and prosecution witnesses were present at the time of occurrence, is concerned, Jamil Akhtar S.I (CW-7)-the investigating officer deposed during cross-examination that: - "The complainant party did not produce any documentary evidence regarding their ownership of agricultural land where they were sowing paddy crop at the time of occurrence. They also did not produce any khasra girdawari to show their possession of agricultural land. The complainant party also did not produce any document regarding ownership or tenancy in the said village. No revenue officer or official was produced to establish the aforesaid fact."
According to the prosecution's case, the witnesses were sowing a paddy crop on their land at the time of the occurrence, which belonged to them. During the cross-examination of this witness, questions were raised regarding the proof of ownership of the land, but he admitted that it had not been produced before the investigating officer. From this line of cross-examination, it is apparent that the defence is claiming that the witnesses did not own any land on which they were sowing a paddy crop. Yaseen Farooq (PW-1)-the complainant deposed during cross-examination that: - "I have not specifically mentioned the name of accused with whom my deceased brother had a dispute of land. I have not mentioned in Ex.PA in which village the disputed land was situated. I have also not mentioned the nature of dispute of said land. Our area is not irrigated through canal water. There is also no source of irrigation from any rainy Nala. The source of water for irrigation is tube-well or peter engine. We installed the tube-well by drilling upto 50 feet and from 50 feet clean water comes out in excessive. We did not produce the proof of ownership of our agriculture land before I.O during investigation to prove our ownership in the village. We also did not produce any other proof to prove our tenancy in any agriculture land in the village.
We also did not produce any Khasra Gardawari in this regard. We also did not produce any proof to establish that we installed any peter engine or tube-well in our land prior to this occurrence. I did not annex any such prove with my private complaint. I did not produce Lumberdar or Patwari of our village before I/O to establish that we were cultivators."
Yaseen Farooq (PW-1), the complainant, and Muhammad Ijaz (PW-2) were asked whether there was any case pending regarding the land between the parties. Yaseen Farooq (PW-1)-the complainant deposed during cross-examination that: - "There was no civil or criminal litigation between my family and accused Asif alias Asu. Similarly we have no political animosity with Asif accused as he never participated in election. It is correct that Asif accused is neither the complainant nor the witness in case FIR No.350/14 (motive part)."
Muhammad Ijaz (PW-2) deposed during cross-examination that: - "Asif accused had no civil or criminal litigation with the complainant party"
Dr. Muhammad Usman Ilyas (PW-6), while examining the deceased, deposed that he was wearing a blood-stained light gray-colored shirt and shalwar. This indicates that no medical aid was provided to Muhammad Naeem soon after the incident until 11:30 a.m. on 30.07.2015. If the witnesses were present at the scene and promptly took Muhammad Naeem to RHQ Chawanda, where he received medical assistance, there should have been evident signs of the type of treatment he received. The doctor observed no signs of medical assistance being provided. This raises doubts about the presence of Yaseen Farooq (PW-1), the complainant, and Muhammad Ijaz (PW-2) at the place of the offence.
10. In addition, Jamil Akhtar S.I. (CW-7), the investigating officer, deposed that he had not mentioned the distance between the prosecution witnesses and the accused in his rough site plan (Exh. CW-7/C), and he indicated that the distance was far away by showing stars. Jamil Akhtar S.I (CW-7)-the investigating officer deposed during cross-examination that: - "I did not mention the distance of PWs from the place of occurrence in rough site plan Exh.CW- 7/C prepared by me. Rather I showed that place with a sign of "STAR". I also showed the said place from the mid of the fields. "STAR" meant that the distance is farway. I also got prepared scale site plan Exh.CW-1/A. In Exh.CW-1/A the distance is also indicated with a sign of "STAR".
The estimated distance between the presence of PWs and place of occurrence is indicated as 6/7 acres. The said distance was not measured by any revenue officer. It is in my knowledge that according to Police Rules if the occurrence takes place in an agricultural place then the scaled site plan should be prepared through revenue officer."
Upon reviewing the site plan (Ex-CW-1/A), it is evident that the incident occurred on a paved road, with a dirt road adjacent to it, followed by a field where crops are grown. The witnesses' presence is depicted as being quite far from the place of occurrence, as indicated by the star. The distance between point "A" and the star is approximately 6 acres. According to the site plan (Ex-CW-1/A), Muhammad Naeem, the deceased, was at point "A", while the appellant Asif alias Asu was at point "E", and the master Riaz was at point "F". Both points "E" and "F" were 15 and 30 feet away from point "A", respectively. Considering the locale of the injuries, these injuries were caused on the inner side of the right leg and went through and through. From distances of 15 to 30 feet, respectively, from point "A", the injuries could not have been inflicted. The place of occurrence was a thoroughfare.
The courts, while appreciating the evidence in criminal cases, must recognize the higher degree of proof required in a criminal case compared to a civil case. The evidence presented by the prosecution should be legally admissible. If there is the slightest doubt regarding the involvement of the accused, the court should not convict the accused. Yaseen Farooq (PW-1)-the complainant deposed during cross-examination that: - "Application EX.PA was got drafted by some person on my direction. I did not disclose the name of scribe of application Ex.PA during investigation. I never objected the contents of Ex.PA. I did not mention in Ex.PA that on the day of occurrence Naeem was coming on motorcycle to provide us water."
Admittedly, Yaseen Farooq (PW-1), the complainant, got drafted application from someone. The person who prepared the complaint has neither joined the investigation nor been cited as a prosecution witness. Non-mentioning this fact in the application/complaint (Ex.PA) indicates that Yaseen Farooq (PW-1)-the complainant had not stated the complete truth, and that the F.I.R. came into existence later, after due deliberations and consultations. The author of the complaint (Exh.PA) should have stated that he prepared the complaint under the instructions of the complainant.
Therefore, in these circumstances, the possibility of consultations and deliberations on the part of the complainant cannot be ruled out. It also creates a dent in the prosecution's case. These are the circumstances that throw considerable doubt on the evidence of Yaseen Farooq (PW-1)-the complainant, and Muhammad Ijaz (PW-2)-the eyewitness, relating to the time of occurrence, time of death, time of reporting the incident, and presence of the witnesses at the place of occurrence.
Looking at these facts, this court believes that the prosecution has withheld the true genesis of the occurrence. Therefore, the possibility of the appellants' false implication in the alleged crime cannot be ruled out. In my opinion, the prosecution has failed to establish the charges framed against the appellants.
11. As far as the motive is concerned, it is a double-edged sword that cuts both ways. According to the prosecution, the motive behind the occurrence was a dispute over land between the parties.
Yaseen Farooq (PW11)-the complainant also deposed during cross-examination that: - "It is correct that Master Riaz is a retired teacher of primary school since long. It is correct that Riaz also participated in local body election once he was elected as Nazim and presently he is sitting Chairman of our union council. We have no good relationship with the family of Riaz.
Volunteered we had a dispute of land with them."
Given the above circumstances, there was reason for the prosecution to involve Master Riaz Ahmad (Appellant No. 1) in the instant case. Yaseen Farooq (PW-1)-the complainant also deposed during cross-examination that: - "Muhammad Asif accused is cousin (Mamoonzad) of Master Riaz. There was no civil or criminal litigation between my family and accused Asif alias Asu. Similarly we have no political animosity with Asif accused as he never participated in election. It is correct that Asif accused is neither the complainant nor the witness in case FIR No.350/14 (motive part)."
The defence has also brought to the record the contradictions and improvements made by Muhammad Ijaz (PW-2), the eyewitness, in his statement. Muhammad Ijaz (PW-2)-the eyewitness deposed during cross-examination that: - "I did not mention in my statement Exh.DA that we put the deceased in a green coloured pick- up and shifted him to RHC Chawinda. It is incorrect to suggest that I have made dishonest and deliberate improvement in order to establish my presence at the time of occurrence at the place of occurrence. I have not specifically mentioned in EXh.DA the name of accused with whom deceased had a dispute of land. I have not mentioned in Exh.DA in which village the disputed land was situated. I have also not mentioned the nature of dispute of said land.------I have not mentioned in Exh.DA that real brother of Riaz namely Munawar had also got registered case FIR No.350/14 u/s 324/8109/34 PPC P.S. Philora against the deceased Naeem who was found not involved in the said case by the I.O.--------I have not mentioned in Exh.DA about any cooler, vessel etc in which deceased was coming for providing us water."
As evident from the above deposition, the only circumstance that could be said to have been proved by the prosecution and the defence are that there was enmity between the parties.
Similarly, Yaseen Farooq (PW-1), the complainant, Muhammad Ijaz (PW-2), the eyewitness, and Jamil Akhtar, SI (CW-7), the Investigating Officer, also admitted the previous enmity between the parties. Enmity, as is well known, is a double-edged weapon that cuts both ways. On one hand, it provides a motive for the accused to commit the occurrence in question; on the other hand, it equally provides an opportunity for the first informant to implicate their enemy. Proof of motive by itself may not be grounds to hold the accused guilty. The accused's motive to commit the crime, based on their actions, cannot, by itself, lead to a judgment of conviction.
12. As far as recovery of the weapon of offence, i.e., pistol 30-bore (P-19) alongwith five alive bullets (P-20/1-5) on the pointing of Muhammad Asif alias Aasoo (the appellant No.2), on 23.09.2015 and positive report of Punjab Forensic Science Agency (Ex.PM) is concerned, as per the prosecution case, on 30.07.2015, Jamil Akhtar S.I. (CW-7)-the investigating officer inspected the place of occurrence and secured seven empties of 30-bore (P1/1 7) through recovery memo (Ex.PE). On 12.09.2015, the appellant No.2, Muhammad Asif alias Aasoo, was arrested. Upon the disclosure of the appellant-Muhammad Asif alias Aasoo, on 23.09.2015, pistol 30-bore (P-19) along with five live bullets (P-20/1-5) were recovered by Jamil Akhtar, S.I. (CW-7)-the investigating officer who secured the same into possession through a recovery memo (Ex. CW-5/C). As per the recovery memo (Ex. CW5/C), a pistol, 30 bore (P-19), along with five live bullets (P-20/1-5), were secured in the parcel. Ghulam Ali 1644/MHC (CW-2), moharrar malkhana, deposed during examination-in- chief that: - "On 23.09.2016, I was posted at Police Station Phalora as Moharrer. Again said, on 23.09.2015, I was posted at Police Station Phalora as Moharrer. On the same date, Jamil Akhtar SI handed over to me one parcel said to contain pistol 30-bore for safe custody and onward transmission to the office of PFSA, Lahore. On 06.10.2015, I handed over the said parcel to Jamil Akhtar SI for onward transmission to the office of PFSA, Lahore."
From the deposition of Ghulam Ali 1644/MHC (CW-2), Moharrar Malkhana, it is revealed that a parcel, allegedly containing 30 caliber pistol, was handed over to Jamil Akhtar, S.I. (CW-7), the investigating officer. Contrary to the deposition of Ghulam Ali 1644/MHC (CW-2), Moharrar Malkhana, Jamil Akhtar S.I. (CW-7)-the investigating officer deposed during the examination-in- chief that: "I deposited it to the officer of PFSA, Lahore on the same date alongwith five alive bullets."
However, a perusal of the Firearms & Tool Marks Examination Report (Ex.PM) reveals that the parcel submitted regarding the allegedly recovered weapon contained only the pistol, but live bullets were not received at the office of the Punjab Forensic Science Agency, as deposed by Jamil Akhtar, S.I. (CW-7), the investigating officer. This led to the safe conclusion that safe custody of the said parcel has been compromised and not proven, which ultimately renders the report (Ex.PM) inconclusive and thus of no help to the prosecution.
13. As it is difficult to rely on the testimonies of Yaseen Farooq (PW-1), the complainant, and Muhammad Ijaz (PW-2), the eyewitness, and for other reasons detailed hereinbefore, this court is persuaded to hold that the prosecution has not proven its case against the appellants beyond a reasonable doubt, given the numerous inconsistencies in the prosecution's narrative. The conviction and sentence recorded by the learned trial court cannot be sustained. It is held in the case of "Muhammad Akram v. The State" (2009 SCM R 230) that: - "The nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit 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 Pervez 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."
14. Considering the above discussion, this court affirms that the prosecution has failed to prove its case against the appellants beyond a reasonable doubt. Therefore, I accept the instant Criminal Appeal No.14068 of 2019 filed by the appellants-Master Riaz Ahmad and Asif alias Aasoo, set aside their conviction and sentence recorded by the learned Additional Sessions Judge, Pasrur, District Sialkot, via judgment dated 26.02.2019 and acquit them of the charge in the private complaint filed under sections 302, 109, 148 & 149 PPC P.S. Phalora, District Sialkot titled "Yaseen Farooq Vs. Muhammad Shahbaz alias Gogi," along with the State case bearing FIR No.241/2015 dated 30.07.2015 under sections 302, 148 & 149 PPC registered at P.S. Phalora, Tehsil Pasrur, District Sialkot.
Appellant No.1-Master Riaz Ahmad, is present on bail. His surety is discharged from liability.
Appellant No.2-Asif alias Aasoo is directed to be released forthwith if not required in any criminal case.
15. Regarding Criminal Revision No.16319 of 2019, filed by the complainant, Yaseen Farooq, for the enhancement of the sentence awarded to respondents No.1 & 2 by the trial court, it is devoid of any legal force for the reasons stated above and is accordingly dismissed.
16. As far as P.S.L.A No.16318 of 2019 seeking conviction of respondents Nos.1 to 6 is concerned, for what has been discussed above in the light of prosecution evidence, medical evidence and documentary evidence, the acquittal of respondents Nos.1 to 6 does not suffer from any illegality to call for interference of this Court with the impugned judgment. This court has also taken note of the settled principle of criminal jurisprudence that unless it can be shown that the lower court's judgment is perverse or that it is completely illegal. No other conclusion can be drawn except the guilt of the accused, or misreading or non-reading of evidence, resulting in a miscarriage of justice.
Even otherwise, when a court of competent jurisdiction acquits the accused, the double presumption of innocence is attached to his case. The acquittal order cannot be interfered with, whereby an accused earns double presumption of innocence as held in Muhammad Mansha Kausar v. Muhammad Ashgar and others (2003 SCMR 477). In this case, the prosecution has not been able to bring on record adequate incriminating evidence against respondents Nos. 1 to 6, which connects them with the alleged crime. The learned trial Judge has advanced valid and plausible reasons for recording acquittal in favor of respondents Nos. 1 to 6. The judgment of acquittal does not call for any interference. Consequently, I find no merit in this P.S.L.A No.16318 of 2019, which is hereby dismissed as being without merit.