SAJJAD ALI SHAH, J---This appeal with leave of the Court is directed against judgment of the Lahore High Court, Lahore, whereby death sentence awarded to the appellant in murder case is not confirmed and altered to life imprisonment and conviction and sentence of three years' R.I and fine awarded to remaining four co-accused for offence under section 148, P.P.C. Are set aside and they have been acquitted. Briefly stated the relevant facts in the background are that Rehmat Khan along with his son Javid and three brothers namely Muhammad Azam, Ahmad Khan and Lal Khan were put on trial in the Court of learned Additional Sessions Judge, Gujrat for offences under sections 302/148/149 P.P.C.. Prosecution case is that incident took place on 18-5-1988 at 8-30 A.M.
Which was Eid day. Complainant party and accused persons came out from the mosque after offering Eid prayers and dispute erupted between them over election matter. They were separated by the people and everyone went home. At 8-30 A.M. After hearing commotion Shabbir Hussain came out from the house followed by his father, brother and Mirza Ehsan Beg complainant. They saw accused persons from whom Rehmat Khan and Azam gave Lalkara that Shabbir be taught lesson for not voting for them in the election. Upon this Javaid fired at Shabbir who was hit in the neck, fell down and died. Javaid and Muhammad Azam were armed with guns, Rehmat Khan and Lal Khan were armed with Sotas while Ahmed Khan had a hatchet. Complainant filed F.I.R. At P.S. Sarai Alamgir at 10-40 A.M. On the same day. The distance between police station and place of occurrence is 7 miles. It is stated in F.I.R. That in the election of local bodies Rehmat Khan was candidate, who was defeated and in that election complainant party did not vote for him For that reason they had killed Shabbir Hussain.
3. Complainant on his way to police station met S.H.O. Muhammad Ashraf at Kasba Sarai Alamgir, who recorded his statement, copy of which was sent to police station for registration of formal F.I.R.
SHO came to the place of occurrence where he found dead body of Shabbir Hussain Beg and prepared injury statement and inquest report. He dispatched dead body to the hospital and then inspected place of occurrence and took into possession blood-stained earth. He recorded statements of witnesses. He got prepared site plans. He arrested accused persons and after completing steps of the investigation presented challan in the Court.
4. In the trial Court prosecution examined 11 witnesses in support of its case. P.W 1 is Muhammad Munir Patwari, who prepared site plan Exh. PA and its duplicate Exh. PA/1. P.W.2 is Manzoor Hussain, in whose presence appellant Javaid while in custody led to the recovery of gun P-1 from his house vide Memo Exh.PB. P.W.3 is constable Ghulam Muhammad, who escorted the dead body to the hospital. P.W.4 Mirza Ehsan Beg and P.W.6 Nazir Hussain have been examined as eye-witnesses of the incident. P.W.5 is Dr. Zafar Iqbal, who conducted post-mortem examination. P.W.7 is Muhammad Ashraf Constable, who recovered last-worn clothes of deceased after post-mortem examination and handed them over to I.O. Vide Memo Exh. PF. P.W.8 is Sub Inspector Mehmood Khan, who arrested appellant Javaid and on his pointation recovered gun P-1 from his house vide Memo Exh.PB. P.W.9 Lal Hussain identified dead body at the time of post-mortem examination. P.W. 10 is S.H.0 Muhammad Ashraf whose evidence is mentioned above. P.W.11 is Muharrir A.S.I. Irshadulah, who registered formal F.I.R. Sent by S.H.O.
Muhammad Ashraf. Prosecution closed its case after tendering report of Chemical Examiner Exh.PJ and report of Serologist Exh. PK.
5. In the trial Court in his statement under section 342, Cr.P.C. Appellant Javaid denied prosecution allegations and stated that he was married to the sister of Shabbir Beg. It was further claimed by him that he had seen complainant in compromising position with Mst Mussarrat Yasmin 2 or 3 days before the incident. On the day of incident Shabbir Beg armed with pistol and Ehsan Beg complainant armed with gun attacked him and in order to save himself appellant Javaid grappled with Ehsan Beg, whose gun went off and hit Shabbir Beg who became injured. Appellant Javaid further stated that at the time of incident he had no weapon with him. Other co-accused in the trial Court claimed false implication for the reason of relationship with Javaid. Appellant and other acquitted co-accused declined to examine themselves on oath as witnesses under section 340(2), Cr.P.C. And also did not produce any other witness in their defence.
6. Trial Court after assessm ent of evidence brought on the record concluded that only Javaid fired shot at Shabbir Hussain who became injured and died and his other accomplices though armed, did not use their weapons, hence were liable for rioting under section 148, P.P.C. Read with second part of section 149, P.P.C. And sentenced each to R.I for three years and fine of Rs,5,000 or in default S.I for one year. They were so convicted as charge under section 302, P.P.C. Was not proved against them. Trial Court convicted appellant Javaid for offence under section 302, P.P.C. Read with section 149 and sentenced him to death and fine of Rs,10,000 or in default S.I for two years. Additionally he was convicted for offence under sections 148 and 149, P.P.C. And sentenced to R.I for three years with fine of Rs,5,000 or in default S.I for one year. Trial Court disbelieved defence plea of appellant of accidental fire from the gun of the complainant during struggle of appellant with him which resulted in death of Shabbir Hussain on the grounds that such plea was not raised before the Investigating agency and was not supported by medical evidence and further no evidence was proved in support of it.
7. After perusal of the record and hearing of arguments raised by both sides, High Court recorded the conclusion that occurrence had not taken place in the manner as stated by the eye witnesses and trial Court also had not believed the prosecution version to the extent that four accomplices of appellant had shared common intention with Javaid for committing murder of Shabbir. In the circumstances High Court set aside the conviction and sentence of four co-accused other than Javaid on the ground that evidence was not sufficient to show their participation in the occurrence and maintained conviction of Javaid on the ground that he had fired at Shabbir Hussain which resulted in his death but altered his sentence from death to imprisonment for life and directed him to pay Rs,10,000 as compensation under section 544-A, Cr.P.C. To the heirs of the deceased.
Sentence of fine has also been maintained. High Court has also given benefit of section 382-B, Cr.P.C. To the appellant.
8. This Court has granted leave to examine the record in the light of contention which is reflected in Paragraph 7 reproduced as under:-- "Learned counsel has drawn our attention to pars 13 of the impugned judgment to contend that the defence plea was rejected first and thereafter the prosecution evidence was dealt with casually, at the same time observing that certain details of the occurrence deposed to by the P.Ws. Were dubious in nature and the occurrence had not taken place exactly in the manner stated by the eye-witnesses. It is submitted that the Courts below have failed to appreciate the evidence in its true perspective resulting in miscarriage of justice."
9. It is correct that in paragraphs 13 and 14 of the impugned judgment High Court has first taken up for consideration defence plea of accidental fire during struggle raised by appellant and disbelieved it on the grounds stated in the portions of paragraphs which are reproduced as under:-- "He, however, neither adduced any evidence in support of the plea raised by him nor even chose to make statement on oath. None of the members of the Punchayat who had held Ehsan Beg P.W.
Guilty of misconduct for having been found in a compromising position with a lady of the village, by Javaid appellant, was produced at the trial, in support of the plea, in spite of the fact that they could have easily done so. He did not state that he had made an attempt and that those persons had refused to do that. Actually it was not suggested on his behalf during the trial to the Investigating Officer that he had advanced that plea during the investigation. He did not even claim that his clothes or the clothes of Ehsan Beg P.W. Were torn during the scuffle that allegedly had taken place between him and Ehsan Beg P.W.
' Apart from all that, the plea even otherwise does not appear to possess any substance for the reason that if Ehsan Beg had come out armed with a gun, accompanied by the deceased armed with a pistol to launch attack on Javaid appellant, they would not have allowed him (appellant Javaid) to come so close to them so that he could indulge in grappling with Ehsan Beg. Someone of them, particularly Eshan Beg P.W. Would have certainly fired at him before he could have reached him."
10. In paragraph 16 of the impugned judgment, observation is made to the effect that as per prosecution evidence Javaid appellant had fired at deceased with gun, which is to be examined in juxtaposition with defence version and conclusion is drawn that prosecution evidence "appears to be more probable and nearer the truth". In paragraph 17 of the impugned judgment, observation is made "we are not impressed regarding certain details of the occurrence deposed by P.Ws.". In paragraph 18 of the impugned judgment after discussion of evidence including medical conclusion is recorded as "we are of the view that occurrence had not taken place exactly in the manner stated by the eye witnesses" and after discussion of evidence of motive, High Court has come to the finding that case against co-accused of appellant was not proved for lack of evidence showing participation in the occurrence and set aside their conviction and sentence but maintained the conviction of the appellant with alteration of his sentence from death to life imprisonment as mentioned above.
11. Mr. Munir Khan learned ASC for the appellant has vociferously contended before us that method adopted by the High Court of appraisement of evidence by taking defence plea first and discarding it is not in conformity with rule laid down in the case of Muhammad Siddik v. The Crown (PLD 1954 FC 112). It is held by the Federal Court of Pakistan in the said reported judgment that in a murder case if there is plea of accident, then two rival cases for the prosecution and the defence should not be dealt with as if they lay in two separate compartments. The duty of a Court in cases of this kind is to review the entire evidence and circumstances at the close, before arriving at a conclusion regarding the truth or falsity of the defence plea. All the factors favouring belief in the accusation must be placed in juxtaposition to the corresponding factors favouring the plea in defence, and the total effect should be estimated in relation to two questions, viz.--
(1) Is the explanation of the accused satisfactorily established by the evidence and circumstances appearing in the case?
(2) If the answer to question (1) be in the negative, is there yet a reasonable possibility that his explanation might be true, so as to cast a reasonable doubt upon the prosecution case.
12. In the reported case the facts were that deceased Ismail was married to Mst. Shakooran sister of appellant Muhammad Siddik and lived in Hyderabad along with his mother-in-law Mst. Kamo.
Appellant Muhammad Siddik lived in Karachi with his wife, who was unwell, hence he came to Hyderabad to take back his mother Mst. Kamo to look after the household. Deceased Ismail and his father Abdul Rehman did not object to the proposal but M. Kamo mother of the appellant herself resisted on the ground that she was not treated nicely by her son on previous occasion. After refusal of his mother, appellant Muhammad Siddik came to the house of Ismail and was going upstairs when he met Ismail who was coming down and Ismail sustained knife injury in the chest and fell down. It is claimed by the prosecution that incident which took place at 7-45 p.m., was seen by Abdul Rehman, an old man of 70, who was attending to a lamb in the house downstairs and Mst Shakooran who was cooking the family meal. Prosecution case further is that after incident Abdul Rehman caught hold of appellant Muhammad Siddik with the help of two neighbours and was handed over along with knife and blood stained clothes to two constables who passed by.
Entry was made in the Roznamcha in the police station by two constables that they saw accused running away with open knife and his clothes were blood stained and people had stated that he had stabbed someone. In the trial appellant Muhammad Siddik took up the plea that he was walking up the stairs with open knife to frighten his mother when on the stairs he met Ismail who gave him a playful push and his foot slipped and he fell down and in the that process was hit with knife accidentally. Appellant changed stories as to in what circumstances he was carrying open knife but was consistent that Ismail sustained knife injury by way of accident.
13. On the question of treatment of defence plea of appellant Muhammad Siddik, the Federal Court of Pakistan observed that procedure laid down by that Court in the case of Safdar All v. The Crown (PLD 1953 FC 93) where plea of self-defence was raised, was approved and adopted to the effect that it is the duty of the Court to review entire evidence of prosecution and defence and if the Court forms opinion that there is reasonable possibility that defence version may be true, then it would react on the whole prosecution case and accused would get benefit of doubt not as a matter of grace but as of right because the prosecution has not proved its case beyond reasonable doubt.
Considering evidence brought on the record in the case of appellant Muhammad Siddik, the Federal Court came to the conclusion and relevant paragraph from the report is reproduced as under:- "In the present case, the accusation of deliberate murder is supported by the two alleged eye- witnesses, whose testimony shows evidence exaggeration, apart from other infirmities. The fatal injury might equally well have resulted from a blow, or through a fall on the weapon from an appreciable height. The plea of accident is supported by the improbability of a deliberate and necessarily fatal blow being struck by the accused at Ismail, when the latter had neither they nor earlier, furnished any cause of grievance or excitement to the accused, The circumstances militate against the accused being in a violent frame of mind, the late-produced evidence to that effect is evidently false and exaggerated. It is by no means impossible, in the circumstances alleged by the accused that the man above, namely Ismail, should have stumbled and fallen on top of Muhammad Siddik, knocking him down as well so that both rolled down the staircase together. The existence of a second injury in an unlikely place, the buttock, on the deceased's person, and the capture of the accused at the bottom of the staircase, both support this possibility, and the accused's version gaining strength thereby, it is necessary to take seriously the plea that the fatal injury was received in the process. Even if it be thought that these circumstances are not sufficient to establish that the death was accidental, yet, there can be no question but that, in the circumstances, enough has been established to give rise to reasonable possibility that the plea of accident is true, sufficiently to create a reasonable doubt in relation to the proof of the prosecution case?
14. The rule laid down in the case of appellant Muhammad Siddik (supra) applies with full force to the facts of instant case. If prosecution case and defence plea are considered in juxtaposition with each other, then it appears firstly that prosecution case on its own merits is not proved beyond doubt by evidence of satisfactory nature and for that reason trial Court observed that co-accused of appellant Javed did not share common intention with him as there was no evidence to show their participation in the act of shooting. While appraising the evidence, High Court also observed as stated above, that it was not impressed regarding certain details of occurrence deposed by P.Ws and High Court made positive observation that in their view occurrence had not taken place exactly in the manner as stated by the eye witnesses. Now if this observation of the High Court is correct then nothing remains in the evidence of prosecution which has failed to prove case against appellant beyond doubt. No crime empty was recovered from the spot so gun allegedly recovered from appellant Javaid cannot be connected with commission of crime. 11 foreign metallic bodies were found in the body of deceased, which shows that shot had entered the body en mass from which it can be opined that shot was fired from a close range. This can also lend support to defence version of accidental fire from gun of the complainant during his struggle with the appellant as is alleged by the appellant. According to the appellant, deceased and complainant were waiting together armed with gun and pistol to attack him and he scuffled with complainant during which gun of the complainant went off accidentally and deceased was hit by the shot.
15. According to the prosecution, motive is election dispute, which is not proved because such dispute is denied by the appellant in his 342, Cr.P.C. Statement. Motive is testified by two eye witnesses, who are not believed by the High Court to the extent of manner in which incident took place. P.W.6 Nazir Hussain eye witness deposed that he reached the mosque after prayers, so was not present when altercation took place in which election dispute was mentioned. Defect in motive cannot be cured by reliance on one portion of defence plea.
16. One important aspect is, which cannot be overlooked, that prosecution did not examine father of deceased and father-in-law of appellant who was also an eye-witness. In this context statement of counsel for the State at page 36 of High Court paper book shows that Muhammad Shafi father of deceased was given up as eye witness on the ground that he was unnecessary. This does not sound correct as High Court has doubted ocular testimony of two eyewitnesses who are close relatives of the deceased. One other reason is that F.I.R. Was not registered at police station directly within the shortest possible time when the distance was 7 miles and as claimed by the complainant who got hold of Suzuki but on the way to the Police Station met Inspector outside Kasba Sarai Alamgir. He has stated in his deposition at page 29 of High Court paper book that SHO was sitting in a residential room and he did not know about the owner of that room. He has not explained any further as to how he came to know that SHO was available in that residential room.
The I.O. In his cross-examination did not remember as to where and at what place he got the information from complainant of murder. Recording of statement of complainant by police officer on the way to the Police Station is not approved by the superior Courts for the reason that such act leaves room for manipulation. These are inherent deficiencies in the case of prosecution which put the case of prosecution at lower level from point of view of credibility.
17. Other reasons assigned by the High Court for not believing the defence version are that appellant and other co-accused did not volunteer to be examined on oath as their own defence witnesses. If they declined to be examined on oath, this does not leave it open to presume that they are guilty because it is the duty of prosecution to prove the case against accused beyond doubt and that burden is not reduced by amendment brought in section 340, Cr.P.C. Which gives option to the accused to appear for himself as witness and give statement on oath or not. Another reason assigned by the High Court is that defence plea was not mentioned before Investigating Officer hence it can be an afterthought. P.W.10 Muhammad Ashraf Inspector, who investigated the case stated in his deposition at page 43 of High Court paper book that it is correct to suggest that Azam accused gave an application against him and inquiry was entrusted to DSP. He further denied that due to that grievance he did not record defence of accused persons in connivance with complainant party to twist the story of incident according to his own desire and also desire of the complainant party. He volunteered that Azam had moved an application two months after he was bailed out. I.O. Denied suggestion to be incorrect that Ehsan Beg P.W. Had attacked Javaid who grappled with him to snatch the gun which went off during the struggle and Shabbir Hussain was injured due to that firing. Defence plea is also suggested to the eye-witnesses in their cross- examination who have denied the same. Needless to say that even if defence plea is raised, burden on prosecution to prove the case beyond doubt is never lessened or lightened and remains the same and accused is always entitled to benefit of doubt if the prosecution case is not proved by satisfactory evidence. Now if defence plea is examined in juxtaposition with prosecution case, which is full of legal infirmities as mentioned above and cannot survive on its own strength, then in the light of rule laid down in the case of Muhammad Siddik (supra), after examination of whole evidence, it appears that there is a reasonable possibility that defence put forward by appellant might be true which view reacts on the whole prosecution case and causes more damage to the credibility of already weak prosecution case. In such circumstances appellant is entitled to the benefit of doubt not as a matter of grace but as a matter of right because prosecution has not proved its case beyond reasonable doubt,
18. For facts and reasons stated above, conviction and sentence of the appellant are set aside and he is given benefit of doubt and acquitted. He may be released at once if not wanted in any other case.