2017 PLP 55 (YLRN)

SAYYED MAZAHAR ALI AKBAR NAQVI, J.

Sajid Ali son of Naseemul Hassan, caste Syed, resident of Street No.8, Ghafoor Colony (appellant in Crl. Appeal No.1081/2011) and Mazhar Iqbal son of Zafar Iqbal, caste Malik, resident of Street No.3, Sirki Mohallah, Tehsil and District Okara (appellant in Crl. Appeal No.116-J/2012), were involved in case FIR No.650, ated 27.11.2008, offence under sections 302, 34, P.P.C., registered with B-Division, Okara, and were tried by learned Sessions Judge, Okara, who vide judgment dated 25.05.2011, convicted them under Section 302(b)/34, P.P.C., and sentenced them to imprisonment for life each with direction to pay Rs.100,000/- each as compensation under Section 544-A, Cr.P.C. to the legal heirs of the deceased and in default whereof to undergo six months S.I. each. Benefit of section 382-B, Cr.P.C. was also extended in favour of the appellants.

2. Sajid Ali (appellant) assailed his conviction and sentence by way of Crl. Appeal No.1081/2011, whereas, Mazhar Iqbal (appellant) has preferred Crl. Appeal No.116-J/2012. Being dissatisfied with the quantum of sentence inflicted upon the appellants, Muhammad Ayub, complainant preferred Crl. Revision No.1096/2012 seeking enhancement of sentence as well as compensation amount against them. As both the appeals as well the revision petition have arisen out of the same judgment, therefore, these are being disposed off through single judgment.

3. The prosecution story as alleged in the FIR (Exh.PE) lodged on the statement of Muhammad Ayyub, complainant (PW-10) is that he is resident of Kirpa Ram Factory, Tehsil and District Okara. Rana Maqsood, brother of the complainant was running a shop of selling iron sheets (chaddars) at Sher Rubbani Town, Railway Road. On 27.11.2008 at about 4:15 p.m. the complainant along with Muhammad Afzal son of Asghar Ali, caste Bhatti, resident of Kirpa Ram Factory and Muhammad Rafique son of Bashir Ahmed, caste Bhatti, resident of Street No.2; Siddiue Nagar, Okara, went to the shop of the brother of the complainant Maqoood Ahmed, but he was not found there. They went on the upper storey of the shop through iron stairs and found his brother Maqsood Ahmed found dead while smeared with blood. The complainant stated that some unknown accused persons had committed his murder. There were injuries on different parts of his body, i.e. on front side of chest, neck, back and nose.

4. While leaving Muhammad Afzal and Muhammad Rafique, PWs, for safeguarding the dead body, Muhammad Ayyub, complainant (PW-10) reached at the police station and made statement before Shan Muhammad, S.I. (PW-6), which was recorded by him as Exh.PE correctly without any addition or omission. Muhammad Ayyub (complainant) put his thumb impression on the same in token of its correctness. On the same day, investigation of this case was handed over to Javed Khan, 'S.I./Investigating Officer (PW-14). The Investigating Officer visited the place of occurrence, inspected the dead body of the deceased and prepared inquest report (Exh.PL), drafted an application (Exh.PM) for postmortem examination of the dead body of the deceased and handed over the dead body to Ahmed Yar, 702/C and Muhammad Babar, 1165/C along with police papers for escorting the same to the mortuary for postmortem examination from DHQ Hospital, Okara. The Investigating Officer secured bloodstained earth from the spot through recovery memo (Exh.PH). The Investigating Officer took into possession shalwar (P-8) from the place of occurrence through recovery memo (Exh.PJ), prepared rough site plan of the place of occurrence (Exh.PN) and recorded statements of the PWs under Section 161, Cr.P.C. After postmortem examination, on the same day, Ahmed Yar, 702/C and Muhammad Babar, 1165/C handed over the last worn clothes of the deceased Qameez (P-3), Shalwar (P-4), vest (P-5) and a pair of sandal (P-6) which were taken into possession by the Investigating Officer vide recovery memo (Exh.PC). The Investigating Officer recorded statements of the PWs under Section 161, Cr.P.C. On 29.11.2008, the Investigating Officer took Nasir Saeed Mirza, draftsman (PW-5) to the place of occurrence, who took rough notes on pointing out of the complainant and the PWs. On 30.11.2008, the complainant made written application before the Investigating Officer while nominating Sajid and Mazhar Iqbal accused in this case. The Investigating Officer recorded statements of the PWs under Section 161, Cr.P.C. On 04.01.2008, Saeed Nasir Mirza, draftsman (PW-5) handed over scaled site plan (Exh. PD and Exh.PD/I). On 05.12.2008, the Investigating Officer arrested Sajid and Mazhar Iqbal accused in this case and procured their physical remand from the learned Illaqa Magistrate. On 10.12.2008 after making disclosure, Sajid Ali accused got recovered hatchet (P-9), Qameez (P-10), Trouser (P-11) and motorcycle (P-12) from his house in presence of the PWs which were taken into possession by the Investigating Officer through recovery memo (Exh.PK). The Investigating Officer also prepared rough site plan of the place of recovery (Exh.PK/1). The Investigating Officer handed over the above said articles to the Moharrir for safe custody and onward transmission to the quarters concerned. Hatchet (P-9) was sealed into a parcel by the Investigating Officer. On 14.12.2008 after making disclosure, Mazhar Iqbal accused got recovered chhuri (P-7) which was taken into possession by the Investigating Officer through recovery memo (Exh.PF). The Investigating Officer prepared rough site plan of the place of recovery of chhuri (Exh.PF/1). The Investigating Officer also sent a complaint for registration of separate case under Section 13 of Pakistan Arms Ordinance (XX), 1965 regarding recovery of chhuri. During the course of investigation, on 18.12.2008, Mazhar Iqbal accused also got recovered mobile phone Nokia 1208 (P-1) along with a sim (P-2) from the residential room of Sajid accused which was taken into possession by the Investigating Officer vide recovery memo (Exh.PA) duly attested by the PWs. On 19.12.2008, the Investigating Officer recorded statements of two PWs regarding identification of mobile and prepared Fard Shanakhat (Exh.PG).

5. During the course of investigation, the Investigating Officer found the appellants guilty and submitted report under Section 173, Cr.P.C, to the court of competent jurisdiction, which was en-routed through learned Illaqa Magistrate as provided under Section 190(2), Cr.P.C. The learned Additional Sessions Judge, Okara in terms of order dated 06.04.2009, framed charge against the appellants. The appellants pleaded not guilty and claimed trial. Prosecution in order to substantiate its case produced as many as 14 (fourteen) witnesses.

6. Muhammad Ayyub (PW-10) is the complainant of this case Muhammad Yousaf (PW-12) and Muhammad Dildar, (PW-13) are witnesses of wajtakar. Muhammad Rafique (PW-11) accompanied the complainant at the time of visiting Maqsood Ahmed (deceased). Investigation of this case was carried out by Javed Khan, S.I./Investigating Officer (PW-14). Dr. Muhammad Essa Ayyaz, Medical Officer (PW-3) had conducted the postmortem upon the dead body of Maqsood Ahmed (deceased), and found following injuries on his person:--

1. Incised wound measuring 6.5 x 0.5 cm on the front of skull bone about 9 cm above the right eye brow, bone exposed.

2. Incised wound 8 cm x 1.5 cm and 6 cm x 1 cm on the back of skull lower part extending up to vertebral column.

3. Incised wound 5 cm x 2 cm on the back of skull left side about 2 cm above left ear.

4. Three incised wounds cutting the lobe of ear middle part measuring 2 cm x 05 cm, 1 cm x 0.5 cm, 1.5 cm x 0.5 cm.

5. Incised wound 10 cm x 1 cm cutting the nose and upper part of right cheek. Cartilage (soft bone of nose) cut up to the maxilla.

6. Incised wound 10 cm x 3 cm on the left side of extending up to neck bone exposed.

7. Incised wound 4 cm x 1 cm muscle deep on the back left middle chest 5 cm away from mid line.

8. Incised wound 2 cm x 0.5 cm muscle deep upper part of left chest.

9. Incised wound 4 cm x 2 cm on the middle part of chest just above the level of nipple going deep on the left side cutting rib and under line lung.

10. Incised wound 4.5 cm x 2.5 cm in middle part of abdomen 6 cm above umbilicus going deep cutting the stomach.

11. Incised wound 6 cm x 3 cm on the front of right palm.

12. Incised wound 2 x 0.5 cm between thumb and index finger of right hand muscle deep.

13. Incised wound 2 cm x 0.5 cm on the front of left palm muscle deep. After conducting postmortem examination, the doctor arrived at the following opinion:-- "After conducting the post-mortem examination of the deceased I am of the opinion that the death was due to haemorrhage and shock by injuries No.9 and to collectively which was sufficient in ordinary course of nature to cause death. All the injuries were ante mortem and caused by sharp edged weapon. Probable time between injuries and death was immediate and between death and post mortem report about 7 to 8 hours. Statements of rest of the prosecution witnesses are formal in nature.

7. On 07.04.2010 learned ADPP gave up Muhammad Babar 1165/C, PW, being unnecessary. On 09.07.2010, vide separate statement, learned ADPP after tendering in evidence report of Chemical Examiner regarding bloodstained chhuri (Exh.PP), report of Chemical Examiner regarding hatchet (Exh.PQ), report of Chemical Examiner regarding bloodstained earth (Exh.PR), report of Serologist regarding bloodstained earth (Exh.PS), report of Serologist regarding hatchet and chhuri (Exh.PT) closed the prosecution evidence.

8. The appellants were examined under Section 342, Cr.P.C., wherein they opted neither to appear as their own witness in terms of Section 340(2), Cr.P.C. in disproof of the allegations levelled against them in the prosecution evidence nor opted to adduce defence evidence. While replying to the question why this case against them and why the PWs deposed against them, the appellants deposed as under:-- "All the PWs are related inter se and with the deceased. It was a blind murder of the deceased. The IO of this case was being reprimanded by the high officials and was directed to trace out the culprits who remained failed to do so. The said IO to save his skin from the high officials made to believe the complainant party regarding my involvement in the occurrence and fabricated false version in this regard. I had satisfied the complainant party regarding my innocence in this case but complainant and other PWs demanded money from me but I refused to do so as I was innocent. The alleged PWs have deposed falsely against me only to black me and pressurize me so that I may be succumbed to their wishes and may give them the consideration as they demanded from me. No incriminating material is available against me. While the prosecution version was based on presumption, conjectures and surmises. I am innocent in this case".

9. After hearing the arguments advanced by the learned counsel appearing on behalf of both the parties, the learned trial court, while evaluating the evidence available on record, found the version of the prosecution correct beyond any shadow of doubt, resulting into conviction of the appellants in the above terms.

10. Learned counsel for the appellants while opening his arguments contended that the impugned judgment has been passed by the learned trial court in a slipshod manner without adverting to the facts of the case, which even otherwise is in sheer violation to the evidence available on the record. It was argued that the appellants are not named in the crime report; rather they were implicated in this case by the complainant through supplementary statement recorded on 30.11.2008 on the basis of statements of Muhammad Yousaf (PW-12) and Muhammad Dildar (PW-13). It was contended that the delay of nominating the accused through supplementary statement for a period of three days speaks volumes. It was next contended that both (PW-12 and PW-13) are residents of the same locality and they had admitted that they participated in the funeral ceremony of the deceased but they did not inform the fact of seeing the appellants after commission of the offence and as such their statements cannot be given any weightage. As far as recovery of hatchet is concerned, it was submitted that no date had been mentioned on the recovery memo, whereas recovery memo of chhuri reflects that the same was not bloodstained. In such backdrop, it was argued that the recovery of hatchet and chhuri from the appellants is of no consequence. Learned counsel went on arguing that during the course of trial, the Investigating Officer has stated in categorical terms that the complainant was of the view till 30.11.2008 that it is a case of no evidence. It was argued that even the report made by the Investigating Officer to the high-ups of the police also verifies the same. It was argued that the whole prosecution case hinges upon the statements of two prosecution witnesses, but their statements were recorded at a belated stage. Learned counsel lastly argued that in such circumstances, the learned trial court erred in law while convicting the appellants and in view of prosecution evidence, which admittedly is full of lacunas, both the appellants deserve their clean acquittal from this case.

11. With regard to Crl. Revision No.1096/2012, learned counsel for the appellants submitted that the same is belied by the facts of the prosecution case, therefore, liable to be dismissed.

12. Contrarily, learned Law Officer assisted by learned counsel for the complainant has vehemently opposed the contentions raised by learned counsel for the appellants. It was argued that the appellants had been implicated in this case by the complainant through his supplementary statement recorded on 30.11.2008. It was argued that the prosecution had proved its case against the appellants through the statements of prosecution witnesses. It was contended that recovery of hatchet as well as chhuri from the appellants sufficiently connect them with the commission of the offence. It was submitted that though no motive has been alleged in this case, but sometimes murders are being committed without any motive. Learned Law Officer contended that the appellants were found guilty during the course of investigation and their names were placed in column No.3 of the report prepared under Section 173, Cr.P.C. as such they do not deserve any leniency.

13. With regard to Crl. Revision No.1996/2012, learned counsel for the complainant stated that keeping in view the role of the appellants coupled with financial constraints of the present era, the appellants deserve normal penalty of death and the amount of compensation is also liable to be enhanced.

14. Arguments advanced pro and contra have been heard. I have also gone through the record available on file with the able assistance of learned counsel for the appellant, learned counsel for the complainant as well as learned Law Officer for the State.

15. There is no second cavil to this preposition that each and every case has its own peculiar facts and circumstances and facts and circumstances of one case never coincide with the other case. It is established principle of law that the prosecution is under obligation to prove its case beyond reasonable doubt and if there is any glimpse of the same being incorrect, the benefit has to be extended in favour of the accused. In the instant case, admittedly the appellants are not named in the crime report; rather they were implicated in this case by the complainant through his supplementary statement recorded on 30.11.2008 on the basis of statements of Muhammad Yousaf (PW12) and Muhammad Dildar (PW-13), witnesses of wajtakar. While scrutinizing the statements of both these prosecution witnesses, it has been established from the record that both of them are residents of the same locality. They have claimed to have seen both the appellants while coming out from the shop of Maqsood Ahmed (deceased) and their clothes were stained with blood and one of them was carrying hatchet which was also bloodstained and they boarded on the motorcycle and left the place. The conduct of the prosecution witnesses is very strange. They stated in their statements that they had not raised any hue and cry and even they did not bother to call any person although they claimed that the place of occurrence is situated at a highly populated area. Further it is claim of the prosecution witnesses PW-12 and PW-13 that they were having tea while sitting at the tea stall even when they saw the accused persons coming out of the shop after commission of the offence. Even this fact was not disclosed to the owner of the shop and the persons present over there. It is strange enough that during the course of investigation, bloodstained clothes were not recovered and even there is no glimpse of the same whether the story advanced by the prosecution witnesses PW-I2 and PW-13 is correct to this extent. When undeniably the owner of the tea-stall would have been the best witness in this regard if the story would have been disclosed to him. While taking into consideration, all the aspects of the case it is opinion of the court that the story advanced by PW-12 and PW-13 seems to be an afterthought and no truthfulness can be attached to the same. Muhammad Dildar (PW-13) has stated in categorical terms that he had attended the funeral ceremony of the deceased along with Muhammad Yousaf (PW-12) but again they had not informed the complainant about this most serious aspect of the case and kept mum for a considerable time i.e. till recording of their statements under section 161, Cr.P.C. on 30.11.2008. Another important aspect of this case is that till the said date, the complainant who is also resident of the same locality had not made any supplementary statement. The Investigating Officer has also stated before the court during the proceedings that it was deemed to be a case of no evidence till 30.11.2008. As far as the recovery of hatchet and chhuri from the appellants is concerned, chhuri admittedly is not stained with blood whereas the perusal of recovery memo of hatchet reflects that it is not dated by the Investigating Officer although the same is stated to be bloodstained. So the possibility that the hatchet was still kept by the appellant stained with blood do not appeal to reason. In the instant case after examining the prosecution case from all corners and evaluating it on the touchstone of interpretation of dictum of "safe administration of criminal justice" this Court has arrived at the conclusion that in this case the prosecution has miserably failed to establish its case against the appellants beyond reasonable doubt.

16. Moreover, it is established principle of law that for extending the benefit of doubt in favour of the accused, so many circumstances are not required, rather one circumstance which creates reasonable doubt in the veracity of the prosecution version, can be taken into consideration for the purpose, not as a matter of grace, rather as a matter of right. Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the cases of "Tariq Pervez v. The State" (1995 SCMR 1345) "Riaz Masih alias Mithoo v. The State" (1995 SCMR 1730) and "Muhammad Akram v. The State" (2009 SCMR 230). In the case of "Tariq Pervez v. The State" (1995 SCMR 1345), the august Supreme Court of Pakistan has held as under:-- "--Art.4

Benefit of doubt, grant of

For giving benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubts

If a simple circumstance creates reasonable doubt in a prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right".

17. The nutshell of the above discussion is that the prosecution has badly failed to substantiate its case against the appellants to the hilt and the learned trial court was not justified in convicting them while basing upon such untrustworthy/ uncorroborated evidence, which even otherwise is full of material contradictions and conviction passed by the learned trial court in the circumstances is against all canons of law recognized for the dispensation of criminal justice. As per dictates of law benefit of every doubt is to be extended in favour of the accused. Moreover, it is golden principle of law that the Court may err in letting off 100 guilty but should not convict one innocent person on the basis of suspicion. Resultantly while setting aside the conviction and sentence recorded by the learned trial court in terms of judgment dated 25.05.2011, Crl. Appeal No.1081/2011 filed by Sajid Ali and Crl. Appeal No.116-J/2012 preferred by Mazhar Iqbal (appellants) are ACCEPTED IN TOTO. Consequently they are ordered to be acquitted of the charge in this case. They be released forthwith if not required in any other case.

18. So far as Crl. Revision No.1096/ 2012 filed by Muhammad Ayyub complainant for enhancement of compensation as well as sentence of the appellants from imprisonment for life to death sentence is concerned, for the reasons afore-stated, the same is devoid of any force, which is accordingly dismissed. HBT/S-32/L Appeals accepted.