2013 PLP 2777 (YLR)

MANZOOR AHMAD MALIK, J.

Muhammad Asif (appellant) and his co-accused namely Muhammad Imran and Rehmat Ali were tried by the learned Addl. Sessions Judge, Gujranwala in case F.I.R. No.130 of 2007, dated 18-3-2007, offences under sections 302, 148 and 149 P.P.C., registered at Police Station Peoples Colony District Gujranwala for the murder of Mukhtar Ahmad (deceased) brother of the complainant. Vide judgment dated 11-6-2009 passed by the learned Addl. Sessions Judge Gujranwala, the appellant has been convicted under section 302(b), P.P.C. and sentenced to death with a further direction to pay Rs.1,00,000 (rupees one lakh only) as compensation under section 544-A, Code of Criminal Procedure, to the legal heirs of the deceased and in default whereof to further undergo simple imprisonment for six months. The learned trial Court through the same judgment acquitted Muhammad Imran and Rehmat Ali co-accused of the appellant and no appeal against their acquittal has been filed either by the State or the complainant. Assailing the above conviction and sentence, Muhammad Asif (appellant) has filed the appeal in hand, whereas, the learned trial Court has forwarded Murder Reference No.321 of 2009 for confirmation or otherwise of sentence of death awarded to Muhammad Asif (appellant), as required under section 374, Code of Criminal Procedure. As both these matters have arisen out of the same judgment, therefore, shall be decided together through this single judgment.

2. Precisely, facts of the case, as contained in F.I.R. (Exh.PE), registered on the basis of statement (Exh.PE/1) made by Shahzad Ahmad complainant (P.W.11) are that the complainant side consisted of three brothers. Mukhtar Ahmad brother of the complainant used to work as turnery at Sheikhupura Road. Usman alias Kaka son of Rehmat Ali had borrowed Rs.10,000 (rupees ten thousand only) from Mukhtar Ahmad. One month prior to the occurrence Mukhtar Ahmad demanded his amount from Usman, whereupon an altercation took place between Mukhtar Ahmad and Usman but the people separated them. On the fateful day i.e. 18-3-2007 at about 1-00 p.m. Mukhtar Ahmad was going to his job after taking lunch. Complainant, Ghulam Muhammad son of Muhammad Bashir, caste Bhullar, resident of Bazar Hamayun Gujjarwala and Muhammad Ilyas son of Muhammad Abbas, caste Bhullar, resident of Bazar Khursheed Masjadwala were also going to their job after taking the meal. Mukhtar Ahmad was few yards ahead of them. When they reached bazaar of Doctor Muhammad Rafique Malhiwala, in front of the house of one Muhammad Aslam, Asif armed with dagger, Usman alias Kaka armed with dagger, Imran armed with bughda sons of Rehmat Ali, Rehmat Ali son of Ali Muhammad armed with chhuri, all Bhullar by caste and two unknown persons also armed with daggers were standing ambushed. When Mukhtar Ahmad reached near them, Rehmat Ali raised lalkara that Mukhtar Ahmad should not be left alive and he be taught a lesson for quarrelling with Usman, whereupon Asif inflicted dagger blow hitting on the abdomen of Mukhtar Ahmad at front side. Usman inflicted second blow of his dagger hitting Mukhtar on his left ear. Imran inflicted third, blow with bughda which landed on the left hand of Mukhtar. Mukhtar Ahmad ran back to save his life and fell down on the ground in injured condition in front of gate of the haveli of Muhammad Aslam. Assailants namely Asif, Usman, Imran, Rehmat and two unknown persons inflicted blows with their weapons on the person of Mukhtar in fallen condition which hit on various parts of his body. Complainant, Ghulam Muhammad and Ilyas stepped forward to rescue Mukhtar Ahmad but all the accused raised lalkara that if anybody came forward he would also be done to death. The complainant started raising alarm whereupon people of the locality gathered at the spot and on seeing them accused persons while brandishing their weapons fled away from the spot. Mukhtar Ahmad succumbed to the injuries at the spot. Complainant and his companions witnessed the occurrence. Motive behind the occurrence as alleged in the F.I.R. was the dispute over lain dain of money. Complainant left the dead-body under the escort of Ghulam Muhammad and Muhammad Ilyas and proceeded to Police Station to report the matter but Ijaz Hussain S.-I. met him on the way.

3. Ejaz Hussain Inspector (P.W.13) was posted as Sub-Inspector at Police Station Peoples Colony, Gujranwala. On 18-3-2007 he along with other police officials was present at Haideri Chowk, Gujranwala, where Shahzad Ahmad complainant appeared before him and made his statement (Exh.PF/1). He recorded police proceedings on the said statement and sent the same to Police Station for recording of formal F.I.R. He reached the spot, inspected the dead-body, prepared inquest report (Exh.PG), injury statement (Exh.PH) and application (Exh.P.1) for post mortem examination. He took the blood-stained earth from the spot vide recovery memo (Exh.PF) He took into possession last worn clothes of the deceased viz shalwar (P.1), kameez (.2), vest (P.3), sweater (P.4), jersey (P.5) and a pair of Peshawari chappal (P.6/1-2) vide recovery memo (Exh.PA). He got prepared scaled site plan (Exh.PB and Exh.PB/1) through Masood Ahmad Bhatti Draftsman (P.W.5). On 16-4-2007 he arrested Asif (appellant) and obtained his physical remand. Thereafter he was transferred and the investigation of this case was handed over to Zafar Ali Shah Inspector/S.H.O. (P.W.14). On 25-4-2007 appellant allegedly got recovered dagger (P.7) which Zafar Ali Shah, Inspector (P.W.14) took into possession vide recovery memo (Exh.PD). On 9-5-2007 he arrested Imran and Usman. During his investigation he found Rehmat, Imran and Usman accused not involved in this case. Thereafter he got prepared the challan and submitted the same in the court of competent jurisdiction.

4. The appellant and his co-accused were summoned by the learned Addl: Sessions Judge Gujranwala to face the trial. Copies of the documents, as required under section 265-C, Code of Criminal Procedure, were provided to them and formal charge under sections 302, 148 and 149, P.P.C. was framed against them on 29-9-2008 to which they pleaded not guilty and claimed trial. In order to prove its case, prosecution examined as many as fourteen witnesses, in all. Ocular account was furnished by Shahzad Ahmad complainant (P.W.11) and Muhammad Ilyas (P.W.12). Medical evidence was furnished by Dr. Ghulam Rasool (P.W.8). Muhammad Ghafoor (P.W.9) witnessed the recovery of dagger (P-7) at the instance of appellant which was taken into possession vide recovery memo (Exh.PD). Ejaz Hussain Inspector (P.W.13) and Zafar Ali Shah Inspector/S.H.O. (P.W.14) investigated this case and while appearing in the witness box, narrated the various steps taken by them during the course of investigation. Rest of the witnesses are formal in nature. Learned DDPP gave up Muhammad Sajjad and Muhammad Ashfaq P.Ws. being unnecessary vide statement dated 4-4-2009. He also gave up Ghulam Muhammad P.W. being unnecessary on 9-6-2009 and closed the prosecution case after tendering in evidence the reports of Chemical Examiner (Exh.PL) regarding earth and that of Serologist (Exh.PN) and Chemical Examiner (Exh.PM) and that of Serologist (Exh.PO) regarding dagger. Statements of the appellant and his co-accused were recorded under section 342, Code of Criminal Procedure on 9-6-2009 wherein they refuted all the allegations of prosecution. To a question as to why the case against him and why the prosecution witnesses had deposed against him, Muhammad Asif (appellant) replied as under:-- "It is a false case and P.Ws. deposed against me falsely. None of the eye-witnesses was present at the time of occurrence at the spot, as it was a blind murder. I have no nexus at all with the commission of present crime. I was got involved falsely in this case due to suspicion only. I am innocent." The appellant did not appear as his own witness in disproof of the prosecution allegations as provided under section 340(2) Code of Criminal Procedure nor did he produce any evidence in his defence.

5. After conclusion of the trial, the learned trial Court convicted and sentenced the appellant as detailed above. Hence this appeal and murder reference.

6. This appeal was filed through Ch. Liaquat Ali Sandhu, Advocate. On 10-4-2013 none was present on behalf of the appellant, therefore, notice pervi was issued to the said learned counsel and notice was also issued to the appellant through concerned Superintendent Jail. On 15-5-2013 again none was appeared on behalf of the appellant, therefore, Mrs. Bushra Qamar; Advocate was appointed as defence counsel at State-expense to prepare this case on behalf of the appellant. On the last date of hearing i.e. 29-5-2013 Rai Usman Ahmad, Advocate informed this court that Barrister Salman Safdar, Advocate is also counsel in this case who was not available and the case was adjourned. Today again learned counsel for the appellant is not available; therefore, we are proceeding with matter after hearing the arguments of learned defence counsel appointed at State expense.

7. Learned counsel for the appellant, in support of this appeal, contends that the case was registered against Muhammad Asif (appellant), his two brothers namely Muhammad Imran, Usman alias Kaka and his father namely Rehmat Ali; that in the F.I.R. and while appearing before the learned trial Court Shehzad Ahmad complainant (P.W.11) and Muhammad Ilyas (P.W.12) have categorically stated that first injury on the abdomen of Mukhtar Ahmad (deceased) was caused by appellant with dagger, second injury was caused on the left ear of deceased by Usman alias Kaka with dagger, third injury was caused on the left hand of deceased by Muhammad Imran with bughda and thereafter appellant along with Usman alias Kaka, Muhammad Imran, Rehmat Ali and two unknown persons caused injuries on different parts of the body of deceased when he was in fallen position; that all the co-accused of the appellant namely Muhammad Imran and Rehmat Ali, who were tried along with the appellant, and Usman alias Kaka who being juvenile was tried separately, have been acquitted by the learned trial Court and no appeal against their acquittal has been filed either by the State or the complainant; that in the circumstances, evidence which has been disbelieved by the learned trial Court to the extent of acquitted co-accused cannot be believed to the extent of appellant without there being any strong and independent corroboration which is very much lacking in this case; that motive was alleged solely against Usman alias Kaka (accused since acquitted) and not against the appellant and the same has rightly been disbelieved by the learned trial Court; that complainant (P.W.11) while appearing before the learned trial Court tried to improve his version qua motive part of the occurrence by stating that an altercation had taken place one week before this occurrence between Mukhtar and Usman wherein Asif had pulled out dagger and tried to hit the same to Mukhtar but Mukhtar took a bughda from the butcher's shop and therefore Usman and Asif had gone away. But he (complainant) was confronted with his previous statement and the improvement was brought on the record; that the alleged recovery of dagger (P.7) at the instance of appellant is not helpful for the prosecution for the reasons that Muhammad Ghafoor (P.W.9), who witnessed the alleged recovery of dagger, did not state anything in his examination-in-chief as from where the recovery was effected. Moreover the occurrence took place on 18-3-2007, the appellant allegedly got recovered dagger (P.7) on 25-4-2007 and the same was received in the Office of Chemical Examiner on 23-6-2007 i.e. after about more than two months of the occurrence and in these circumstances there is a remote possibility of blood being present on the dagger. Learned defence counsel has drawn our attention to the statement of Dr. Ghulam Rasool (P.W.8) who conducted the post mortem examination on the dead-body of Mukhtar Ahmad (deceased) and got exhibited the carbon copy of Post Mortem Report but in his cross-examination, he has admitted that original post mortem report contains only the name of deceased, receipt of the dead body by a Constable and the signatures of doctor and the remaining portions of the report are blank; that it has not been proved on the record that the post mortem examination was conducted on the dead-body of the deceased and in this way very cause of death of deceased is shrouded in mystery; that viewing from all angles the prosecution case is doubtful in nature and the appellant is entitled to the benefit of doubt not as a matter of grace but as of right.

8. On the other hand learned Deputy Prosecutor-General, assisted by learned counsel for the complainant vehemently opposes this appeal on the grounds that as per F.I.R. this incident took place at 18-3-2007 at 1-00 p.m. and the same was reported to the police at 1-30 p.m. just thirty minutes after its happening; that the appellant is named in the F.I.R.; that it is a broadday-light occurrence and as such there is no question of misidentification; that role of the appellant is distinguishable from that of his co-accused as the fatal injury was attributed to him; that ocular account is fully supported by medical evidence and corroborated by the recovery of dagger (P.7) at the instance of appellant coupled with the positive reports of Chemical Examiner. Exh.PM) and that of Serologist (Exh.PO); that the motive has wrongly been disbelieved by the learned trial Court. So far as post mortem report (Exh.PC) is concerned, learned counsel for the complainant contends that no malice was suggested to the doctor who has stated on oath that he conducted the post mortem examination on the dead-body of the deceased and on the basis of minor discrepancy in the original post mortem report his evidence cannot be discarded as he himself has owned the contents of post mortem report (Exh.PC). Learned counsel for the complainant, however, under the instructions of complainant, who is also present in the court, confirms the fact that Usman alias Kaka co-accused of the appellant being juvenile was separately tried by the learned trial Court. He was acquitted of the charge and no appeal against his acquittal has been filed by the State or the complainant; that the prosecution has successfully brought home guilt of the appellant to the hilt and there is no merit in this appeal.

9. We have heard learned counsel for the parties as well as the learned Deputy Prosecutor-General for the State at a considerable length and have also gone through the record.

10. This unfortunate incident, wherein Mukhtar Ahmad. brother of the complainant, was done to death, as per F.I.R. (Exh.PE) took place on 18-3-2007 at 1:00 p.m. and the matter was reported to the Police at 1-30 p.m. In the F.I.R. the case of the prosecution was that on 18-3-2007 at about 1-00 p.m. Mukhtar Ahmad was going to his job after taking lunch. Complainant, Ghulam Muhammad and Muhammad Ilyas were also going to their job after taking the meal. Mukhtar Ahmad was a few yards ahead of them. When they reached bazaar of Doctor Muhammad Rafique Malhiwala, Asif armed with dagger, Usman alias Kaka armed with dagger, Imran armed with bughda, Rehmat Ali armed with chhuri and two unknown persons also armed with daggers were standing ambush in bazaar in front of the house of Muhammad Aslam. When Mukhtar Ahmad reached near them, Rehmat Ali raised lalkara that Mukhtar Ahmad should not be left alive and he be taught a lesson for quarrelling with Usman, whereupon Asif inflicted dagger blow hitting on the abdomen of Mukhtar Ahmad at front side. Usman inflicted second blow of his dagger hitting Mukhtar on his left ear. Imran inflicted third blow with bughda which landed on the left hand of Mukhtar. Mukhtar Ahmad ran back to save his life and fell down on the ground in injured condition in front of gate of the haveli of Muhammad Aslam. Assailants namely Asif, Usman, Imran, Rehmat and two unknown persons inflicted blows with their weapons on the person of Mukhtar in fallen condition which hit on various parts of his body. The charge was jointly framed against the appellant and two others namely Muhammad Imran and Rehmat Ali, whereas Usman alias Kaka co-accused of the appellant being juvenile was tried separately as is clear from para 4 of the impugned judgment. The learned trial Court through the impugned judgment acquitted Muhammad Imran and Rehmat Ali co-accused of the appellant. It has been confirmed by the learned counsel for the complainant that Usman alias Kaka co-accused of the appellant being juvenile was tried separately and acquitted by the learned trial Court. No appeal against the acquittal of Usman alias Kaka, Muhammad Imran and Rehmat Ali was preferred either by the State or the complainant and, as such, their acquittal has attained finality. From the perusal of F.I.R. and the statements of complainant (P.W.11) and Muhammad Ilyas (P.W.12), recorded before the learned trial Court, it is evident that the role attributed to Muhammad Asif (appellant) is at par with that of acquitted co-accused, namely, Usman alias Kaka, Muhammad Imran and Rehmant Ali. Therefore, the question for determination, before this Court, is that whether the evidence, which has been disbelieved qua the acquitted co-accused of the appellant can be believed against the appellant. In this regard, we are guided by the judgment of the Hon'ble Supreme Court of Pakistan reported as "Iftikhar Hussain and another v. State 2004 SCMR 1185, wherein the Hon'ble, Supreme Court of Pakistan, at page 1196 held as under:-- "17. ...It is true that principle of falsus in uno falsus in omnibus is no more applicable as on following this principle, the evidence of a witness is to be accepted or discarded as a whole for the purpose of convicting or acquitting an accused person, therefore, keeping in view prevailing circumstances, the Courts for safe administration of justice follow the principle of appraisal of evidence i.e. sifting of grain out of chaff i.e. if an ocular testimony of a witness is to be disbelieved against a particular set of accused and is to be believed against another set of the accused facing the same trial, then the Court must search for 'independent corroboration on material particulars as has been held in number of cases decided by the superior Courts. Reference may be made readily to the case of Sarfraz alias Sappi and 2 others v. The State (2000 SCMR 1758), relevant Para therefrom is reproduced hereinbelow thus:-- The proposition of law in criminal administration of justice namely whether a common set of ocular account can be used for recording acquittal and conviction against the accused persons who were charged for the same commission of offence is an overworked proposition. Originally the opinion of the Court was that if a witness is not coming out with a whole truth his evidence is liable to be discarded as a whole meaning thereby that his evidence cannot be used either for convicting accused or acquitting some of them facing trial in the same case. This proposition is enshrined in the maxim falsus in uno falsus in omnibus but subsequently this view was changed and it was held that principle enshrined in this maxim would not be applicable and testimony of a witness will be acceptable against one set of accused though same has been rejected against another set of accused facing same trial. However, for safe administration of justice a condition has been imposed namely that the evidence which is going to be believed to be true must get independent corroboration on material particulars meaning thereby that to find out credible evidence principle of appreciation of evidence i.e. sifting chaff out of grain was introduced as it has been held in the cases of Syed Ali Bepari v. Nibaran Mollah and others (PLD 1962 SC 502), Tawaib Khan and another v. The State (PLD 1970 SC 13), Bakka v. The State (1977 SCMR 150), Khairu and another v. The State (1981 SCMR 1136), Zaiaullah v. State (1993 SCMR 155), Ghulam Sikandar v. Mamaraz Khan (PLD 1985 SC 11), Shahid Raza and another v. The State (1992 SCMR 1647), Irshad Ahmad and others v. The State and others (PLD 1996 SC 138) and Ahmad Khan v. The State (1990 SCMR 803)." Similar view was reiterated in the subsequent judgment of Hon'ble Supreme Court of Pakistan reported as "Akhtar Ali and others v. The State" (2008 SCMR 6). We, therefore, following the principles as set forth by the Hon'ble Supreme Court of Pakistan in such like cases, would examine the case of the appellant to see, as to whether his case is distinguishable from the case of acquitted co-accused and whether there is any independent corroboration of the prosecution case against the appellate.

11. Motive behind the occurrence as alleged in the F.I.R. was that Usman alias Kaka (accused since acquitted) had borrowed Rs.10,000 (rupees ten thousand only) from Mukhtar Ahmad (deceased). One week prior to the occurrence Mukhtar Ahmad demanded his amount from Usman, whereupon an altercation took place between Mukhtar Ahmad and Usman but the people separated them. In the F.I.R., the motive was alleged exclusively against Usman alias Kaka co-accused of the appellant and the same was not alleged against the appellant. While appearing before the learned trial Court the complainant tried to improve his statement qua the motive. In this respect, following portion of the examination-in-chief of Shehzad Ahmad complainant (P.W.11) is relevant which is reproduced as under:-- "The motive behind had been the dispute of Len-Den of amount as Usman owed amount to my brother Mukhtar. An altercation had taken place one week before this occurrence between Mukhtar and Usman wherein Asif had pulled out dagger and tried to hit the same to Mukhtar but Mukhtar took Bughda from the butcher's shop and therefore Usman and Asif had gone away." The complainant was confronted with his previous statement and the improvement was brought on the record. In the circumstances, we are of the view that the prosecution has failed to prove the motive and the learned trial court has rightly disbelieved the motive by assigning valid reasons.

12. So far as the recovery of dagger (P.7) at the instance of appellant is concerned, it was the case of the prosecution that on 25-4-2007 appellant while in police custody made a disclosure and led to the recovery of dagger (P.7) which was taken into possession vide recovery memo (Exh.PD) attested by Muhammad Ghafoor (P.W.9) and Muhammad Ashfaq, Muhammad Ghafoor (P.W.9) did not state anything in his examination-in-chief as from where this recovery was effected. So far as the positive reports of Chemical Examiner (Exh.PM) and that of Serologist (Exh.PO) are concerned, it may be observed that the occurrence took place on 18-3-2007, whereas the recovery of dagger (P.7) was effected at the instance of appellant on 25-4-2007 and the same was received in the office of Chemical Examiner on 23-6-2007 i.e. after about more than two months of the occurrence. In the circumstances, there is a remote possibility of presence of the blood on the dagger after the lapse of more than two months. Therefore, we are of the view that it is not safe to rely on these pieces (recovery of dagger and reports of Chemical Examiner and Serologist) of evidence.

13. There is another aspect of this case. Dr. Ghulam Rasool (P.W.8) who conducted the post mortem examination on the dead-body of Mukhtar Ahmad (deceased) and prepared the post mortem report (Exh.PC) has admitted in his cross-examination that the original post mortem report is blank and only contains the name of deceased, receipt of the dead-body and his signatures. The following cross-exami-nation on Dr. Ghulam Rasool (P.W.8) is relevant which is reproduced as under:

"It is correct that no original of PMR Exh.P.C. (under objection) is available. It is also correct that the concerned register of PMRs available at Civil Hospital Gujranwala and summoned by this court is present before me and the same is blank regarding PMR No.55/2007 dated 18-3-2007 except name of the deceased at the start and the receipt of dead body by a constable with his signature at the end. My signatures on Exh.P.C. are not original. No record is available in the hospital. No Caste and address of the deceased had been mentioned in the original PMR. No F.I.R. number is mentioned in it. It is also not mentioned that when the dead body was produced before me and who had identified the same. The name of the police station is not mentioned on the original. No injuries, nature of the same the weapon used and cause of death are mentioned in original PMR. The time between injuries and death and death and autopsy had also not been mentioned in it. It is also not written if dissection was made or not. Ehx.D.A. is the Photo copy of original PMR No.55/07 which bears my signatures. Exh.P.C. under objection) was not prepared while placing carbon paper under the original of Exh.D.A. It is incorrect that post mortem examination report Exh.P.C. (under objection) does not concern with Mukhtar Ahmad deceased of this case. It is incorrect that Exh.P.C. is false and fabricated. It is incorrect that I have deposed falsely." We have also perused the photo copy of original post mortem report (Exh.DA) (not part of the paper book but available in the file of exhibits) which contains only the name of the deceased, receipt of the dead-body and the signature of the doctor and the remaining portion is blank. In these circumstances, the cause of death of the deceased has not been proved in accordance with law. Sequel of the above discussion is that the prosecution case is doubtful in nature and the appellant is entitled to the benefit of doubt not as a matter of grace but as of right. In "Ayub Masih v. The State" (PLD 2002 SC 1048), at page 1056 the Hon'ble Apex Court has been pleased to observe as under:- "...It is hardly necessary to reiterate that the prosecution is obliged to prove its case against the accused beyond any reasonable doubt and if it fails to do so the accused is entitled to the benefit of doubt as of right. It is also firmly settled that if there is an element of doubt as to the guilt of the accused the benefit of that doubt must be extended to him. The doubt of course must be reasonable and not imaginary or artificial. The rule of benefit of doubt, which is described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". In simple words it means that utmost care should be taken by the Court in convicting an accused. It was held in The State v. Mushtaq Ahmad (PLD 1973 SC 418) that this rule is antithesis of haphazard approach or reaching a fitful decision in a case. It will not be out of place to mention here that this rule occupies a pivotal place in the Islamic Law and is enforced rigorously in view of the saying of the Holy Prophet (P.B.U.H) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent."

14. For the foregoing reasons, Criminal Appeal No.1003 of 2009 is allowed. Conviction and sentence awarded to the appellant by the learned trial Court vide judgment dated 11-6-2009 is set aside and he is acquitted of the charge of murder of Mukhtar Ahmad (deceased). Muhammad Asif appellant is in jail. He be released forthwith if not required to be detained in any other case.

15. Murder Reference No.321 of 2009 is answered in the NEGATIVE and the sentence of death awarded to Muhammad Asif (convict) is NOT CONFIRMED. MH/M-208/L Appeal allowed.