' Muhammad Yousuf alias Kaka appellant was convicted for an offence under section 302(b), P.P.C., by the learned Additional Sessions Judge, Sheikhupura vide judgment, dated 5-10-1994 and was sentenced to death by way of Ta'zir and was also ordered to 'pay a sum of Rs,25,000 to the heirs of Muhammad Shafi deceased by way of compensation under section 544-A, Cr.P.C., or in default of payment thereof to undergo rigorous imprisonment for a period of six months. Through the same judgment the appellant's co-accused namely Muhammad Younas alias Lali was acquitted by the learned Trial Court by extending of the benefit of doubt to him. The appellant has challenged his conviction and sentence before this Court through Criminal Appeal No,552 of 1994, Mst. Inayat Bibi complainant had also filed Criminal Revision No,80 of 1995 before this Court seeking setting aside of the acquittal of Muhammad Younas alias Lali accused and also seeking enhancement of the amount of compensation ordered to be paid by Muhammad Yousuf alias Kaka appellant. However, that revision petition had been disposed of by this Court on 31-10-1995 on account of the death of the complainant-petitioner. We have heard the appellant's appeal alongwith Murder Reference No,224 of 1994 seeking confirmation of the sentence of death passed against him. We propose to decide both these matters together through the present consolidated judgment.
2. The prosecution case narrated in the F.I.R., was that Mst. Inayat Bibi was a resident of village Ghazi Pur situated within the area of Police Station Sharqpur, District Sheikhupura and on 20-11-1992 she had gone to Qila Sharif with her husband namely Muhammad Shafi for the purpose of attending the Urs of Baba Mian Noor Muhammad. At about 3-00 p.m. On 21-11-1992 the complainant, her husband Muhammad Shafi, Shahadat Ali and Rehmat Ali were going back to their own village Ghazi Pur after attending the said Urs and at about 4-00 p.m. They reached Pattan Nazir Lubana to take a boat for crossing the canal. Suddenly Muhammad Yousuf alias Kaka appellant and his co-accused Muhammad Younus alias Lali emerged there. Both of them were armed with a carbine each. The appellant then shouted that the complainant and her husband would not be spared as they had not given their daughter in marriage to the appellant and instead she had been given in marriage to Shahadat Ali. Thereafter, the appellant fired a shot from his carbine hitting Muhammad Shafi on the right side of his front chest. Then Muhammad Younas accused fired a shot at Muhammad Shafi hitting the latter at his front chest and left side of his ribs.
On receipt of those injuries Muhammad Shafi fell down. The appellant then fired another shot at Shahadat Ali but the same did not hit him. Muhammad Shafi succumbed to his injuries at the spot.
The fire reports had attracted a number of people to the spot and, therefore, the appellant and his co-accused fled from the place of occurrence while firing in the air, leaving the dead body of her husband in the care of Shahadat Ali and Rehmat Ali at the spot Mst. Inayat Bibi complainant then went to her own house first in village Ghazi Pur and thereafter, proceeded to report the matter to the police.
3. Upon the statement of Mst. Inayat Bibi complainant F.I.R. No,340 was registered at Police Station, Sharqpur, District, Sheikhupura at 5-00 p.m. On the same day, i,e,, 21-11-1992 for an offence under sections 302/34, P.P.C., the F.I.R., had been recorded by Zulfiqar Ali, Inspector (P.W.10):
4. After recording the F.I.R. Zulfiqar Ali, Inspector (P.W.10) took up the investigation of the case, proceeded to the place of occurrence, inspected the same, prepared main inquest report regarding the dead body and sent the same to the mortuary for autopsy. He also secured blood- stained earth from the place of occurrence and prepared a rough site-plan thereof besides recording the statements of witnesses.
5. Post-mortem examination of the dead body of Muhammad Shafi was conducted by Dr. Qumber Abbas (P.W.5) at 11-00 a.m. On 22-11-1992. The doctor had found three injuries on the dead body which were all antemortem and had been caused by fire-arm. In the opinion of the doctor the death had occurred due to serious shock on account of hemorrhage and cardio-respiratory failure. Injuries Nos.1 and 2 were found by the doctor to be individually as well as collectively sufficient to cause death in the ordinary course of nature. Probable time elapsing between the injuries and death was immediate and that between the death and post-mortem examination was within twenty-four hours.
6. After the post-mortem examination of the dead body Zulfiqar Ali, Inspector (P.W.10), the Investigating Officer, received the last-worn blood-stained clothes of the deceased. He arrested Muhammad Yousuf alias Kaka appellant on 30-11-1992 and 13-12-1992 he recovered a carbine from his possession. Subsequently, he arrested Muhammad Younas alias Lali accused on 16-12-1992 and on the same date he got a formal site-plan of the place of occurrence prepared by a draftsman.
Thereafter, he completed the other formalities and submitted a challan before the Court.
7. At the commencement of the trial a Charge with two heads under sections 302/34 and 324/34, P.P.C., was framed against the appellant and his accused to which they pleaded not guilty and claimed a trial.
8. During the trial the prosecution produced as many as ten witnesses in support of its case against the appellant and his co-accused. Mst. Inayat Bibi complainant (P.W.3) and Rehmat Ali (P.W.4) furnished the ocular account of the incident in question. Mst. Inayat Bibi complainant (P.W.3) also deposed about the motive Mushtaq Ahmad (P.W.2) stated about the recovery of weapon from the appellant during the investigation. Dr. Qumber Abbas (P.W.5) provided the medical evidence. Zulfiqar Ali, Inspector (P.W.10) stated about the various steps taken by him during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature.
9. In their statements recorded under section 342, Cr.P.C., the appellant and his co-accused denied and controverted all the allegations of fact levelled against them by the prosecution and professed their innocence. It was maintained by them that they had been falsely implicated in this case due to the complainant party's enmity against them and also on account of party friction in the village. The appellant and his co-accused had, however, opted not to make any statement on oath under section 342, Cr.P.C., and they also did not produce any evidence in their defence.
10. At the conclusion of the trial the learned Additional Sessions Judge, Sheikhupura found the case of the prosecution to have been proved against the appellant beyond reasonable doubt and, thus, he was convicted and sentenced as mentioned and detailed above. However, the appellant's co- accused was acquitted by the learned Trial Court by extending the benefit of doubt to him. Hence, the present appeal and the connected Murder Reference before the Court.
11. We have heard the learned counsel for the appellant as well as the learned counsel representing the legal heirs of Muhammad Shafi deceased and have perused the record with their assistance.
No one has entered appearance before us on behalf of the State. It has been argued by the learned counsel for the appellant that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. According to him the benefit of such doubt had been extended to the appellant's co-accused and the same could not have been denied to the appellant. As against that the learned counsel representing the heirs of the deceased has maintained that the prosecution had succeeded in proving the guilt of the appellant to the hilt and also that there was no mitigating circumstance available on the record so as to warrant reduction of the appellant's sentence.
12. After hearing the learned counsel and going through the record we are in no manner of doubt that the prosecution had failed to prove its case against the appellant beyond reasonable doubt.
Mst. Inayat Bibi complainant (P.W.3) was the wife of Muhammad Shafi deceased and she was admittedly a chance witness. She was a resident of village Ghazi Pur which was situated about one and a half miles away from the place of occurrence. Her going to village Qila Sharif with her husband for attending an Urs and returning therefrom at the time of occurrence were facts which were not proved on the record through any independent evidence. She had conceded before the learned Trial Court that immediately after the occurrence she had gone to her own village first before proceeding to report the matter to the police. In all probability she had been procured as a witness from her village after the incident in question and had been planted as an eye-witness and a complainant in this case. Rehmat Ali (P.W.4) had stated in so many words that he had not seen Mst. Inayat Bibi complainant with her husband during the Urs. The complainant had herself admitted that she had not attested the inquest report. Although Rehmat Ali (P.W.4) was not related to the deceased yet he was a resident of the complainant's village and his claimed presence with the deceased at the relevant time spoke of his close association with the deceased. He was also a chance witness whose visit to the other village for the purpose of attending the Urs had also remained unsubstantiated on the record through any independent evidence. Before the learned Trial Court he had categorically maintained that the occurrence in question had taken place on the eastern side of the canal whereas the complainant's statement as well as the site-plan (Exh.P.F.) of the place of occurrence showed that the occurrence had in fact taken place on the western side of the canal. Such a major contradiction regarding the very place of occurrence had rendered his claim regarding witnessing the occurrence to be quite doubtful and unreliable. It was claimed by Mst. Inayat Bibi complainant (P.W.3) that she had left the dead body in the care of Rehmat Ali (P.W.4) before proceeding to report the matter to the police but Zulfiqar Ali, Inspector (P.W.10), the Investigating Officer, had unambiguously maintained before the learned Trial Court that Rehmat Ali (P.W.4) was not present with the dead body when the Investigating Officer had gone to the place of occurrence for the first time. Rehmat Ali (P.W.4) had not attested the memorandum regarding recovery of blood-stained earth from the place of occurrence. He had also not signed the inquest report. To top it all, Rehmat Ali (P.W.4) had himself stated before the learned Trial Court that he had not informed the police that he was an eye-witness of the occurrence! Zulfiqar Ali, Inspector (P.W.10) had stated before the learned Trial Court that the number of the accused persons were not mentioned in the rough site-plan or in the inspection note prepared by him at the time of his first visit to the spot. He had also stated before the learned Trial Court that the member of F.I.R., had not been shown in the inquest report. This fact belied the prosecution's claim that the F.I.R., in this case had been recorded by this witness before his first visit to the spot. Over, and above all these considerations it is pertinent to note that, both of these eye- witnesses had not been relied upon by the learned Trial Court vis-a-vis involvement of Muhammad Younas alias Lali accused in the present occurrence despite the fact that both these witnesses had specifically attributed an effective fire at the deceased to him Thus, we have felt it to be unsafe to believe these very witnesses qua the appellant without looking for corroboration in that regard from some independent source.
13. The eye-witnesses produced by the prosecution had failed to receive corroboration from the motive set up by it. The bald statement of Mst. Inayat Bibi complainant (P.W.3) in respect of the alleged motive had remained completely unsubstantiated or supported by any other piece of evidence on the record. The appellant had denied the said motive in categorical terms. The Investigating Officer had not uttered a single word about the motive alleged against the appellant.
It was even otherwise available on the record that the daughter of the deceased had already married Shahadat Ali P.W. About two months before the present occurrence. We have, thus, arrived at an inescapable conclusion that the motive set up by the prosecution had remained far from being proved.
14. The alleged recovery of a carbine from the appellant's possession during the investigation was legally inconsequential in the present case as no crime-empty had been recovered from the place of occurrence so as to connect the said carbine or the appellant with the occurrence in question.
Therefore, such a recovery of weapon from the appellant could hardly provide any corroboration to the ocular account furnished by the prosecution.
15. The medical evidence in the present case went a long way in contradicting the ocular account rather than supporting it. According to both the eye-witnesses produced by the prosecution the deceased had received two independent fire-shots whereas Dr. Qumber Abbas (P.W.5) had categorically maintained before the learned Trial Court that both the wounds of entry on the dead body were the result of one fire-shot. We have ourselves looked at the diagram of injuries prepared by the doctor and the same clearly confirms the said statement of the doctor. Thus, the medical evidence did not provide the requisite support to the eye-witnesses produced by the prosecution.
16. For what has been discussed above we have arrived at a confident conclusion that the prosecution had indeed failed to prove its case against the appellant beyond reasonable doubt.
Similar doubts were entertained by the learned Trial Court in respect of the involvement of Muhammad Younas alias Lali accused and he was acquitted of the charge against him. The benefit of doubt is to be extended to an accused person in a criminal case as a matter of right and not by way of grace or concession. In the circumstances of this case we have failed to find any reason for not extending that benefit to the appellant when it is otherwise due to him. Therefore, Criminal Appeal No,552 of 1994 filed by Muhammad Yousuf alias Kaka appellant is accepted, his conviction and sentence recorded by the learned Trial Court are set aside and he is acquitted of the charge against him. He shall be released from jail forthwith if not required in any other case.
17. As the sentence of death passed against Muhammad Yousuf alias Kaka appellant has been set aside by us, therefore, the same is not confirmed and Murder reference No,224 of 1994 is hereby answered in the negative.