2021 P Cr (PLP)

SHEHRAM SARWAR CH. J.

Ihsan Ullah, Muhammad Shoaib, Muhammad Faisal and Muhammad Umer (appellants) were tried by the learned Addl. Sessions Judge, Daska in case FIR No.335 dated 26.08.2014, offence under sections 302 and 34, P.P.C. registered at Mice Station Satrah District Sialkot for the murder of Iftikhar Ahmad (deceased) maternal nephew of the complainant. Vide judgment dated 18.04.2017 passed by the learned trial Court, Ihsan Ullah (appellant) was convicted under section 396, P.P.C. and sentenced to death with a further direction to pay Rs.3,00,000/- (rupees Three lakh only) as compensation under section 544-A, Cr.P.C. to the legal heirs of deceased and in default whereof to further undergo simple imprisonment for six months. He was also directed to pay fine Rs.50,000/- as fine and in default whereof to further undergo simple imprisonment for six months. Muhammad Umer, Muhammad Faisal and Muhammad Shoaib (appellants) were convicted under section 396, P.P.C. and sentenced to imprisonment for life with a further direction to pay Rs.3,00,000/- (rupees three lakh only) each as compensation under section 544-A, Cr.P.C. to the legal heirs of deceased and in default whereof to further undergo simple imprisonment for six months each. They were also directed to pay fine Rs.50,000/- each and in default whereof to further undergo simple imprisonment for six months each. Benefit of section 382-B, Cr.P.C. is extended to the above said appellants. It is mentioned in para No.40 of the impugned judgment that there is no need to pass any sentence under section 302, P.P.C. against the appellants. Assailing the above convictions and sentences, the appellants have filed four separate appeals whereas the learned trial court has sent Murder Reference No.277 of 2017 for confirmation or otherwise the sentence of death of lhsan Ullah (appellant) as required under Section 374 of the Code of Criminal Procedure. Since all these matters have arisen out of the same judgment, therefore, the same are being decided together through this single judgment.

2. Prosecution story, as set out in the FIR (Exh.PA) registered on the statement (Exh.PM) of Muhammad Maskeen, complainant (PW.8) is that on 26.08.2014 he alongwith his maternal nephews Iftikhar Ahmad and Saud Hussain was coming to their village from Gujranwala on motorcycle bearing registration No.2807/GAL. At about 8:45 p.m. when they reached at Pulli near Chhamb Moor, three unknown accused armed with pistols stopped them and asked to switch off the light of motorcycle. Two of the accused made the complainant and Saud Hussain to stand aside, while the third accused made fire shot from his pistol on Iftikhar Ahmad, which landed on his head, who fell down and succumbed to the injury. The features/descriptions of the accused are mentioned in the FIR who could be identified on their confrontation. After the occurrence the accused fled away towards south. 4(sic.) After completion of investigation, report under section 173, Code of Criminal Procedure was submitted in this case. Copies of relevant documents were provided to the appellants, as required under section 265-C, Code of Criminal Procedure and formal charge was framed against them on 30.10.2015 to which they pleaded not guilty and claimed trial. Statements of the appellants under section 342 of the Code of Criminal Procedure were recorded on 13.04.2017, wherein they refuted all the prosecution allegations levelled against them and professed their innocence. The appellants neither opted to appear as their own witnesses in disproof of the prosecution allegations as provided under section 340(2) of the Code of Criminal Procedure nor did they produce any evidence in their defence. After conclusion of trial, the learned trial court convicted and sentenced the appellants, as detailed above. Hence these appeals and murder reference.

4. Learned counsel for the appellants, in support of these appeals, contends that the appellants have falsely been implicated in this case; that names of the appellants are not mentioned in the first information report; that presence of Muhammad Maskeen, complainant (PW.8) on the spot at the time of incident is doubtful in nature; that Muhammad Yousaf (PW.9) and Muhammad Yasin (PW.10) cannot be considered truthful witnesses because their names are not mentioned in the FIR; that identification parade conducted in this case carries no value in the eye of law because same was held jointly; that alleged recoveries of .30 bore pistols at the instance of Ihsan Ullah, Muhammad Shoaib, Muhammad Faisal and Muhammad Umer (appellants) are inconsequential; that alleged recovery of cash at the instance of Ihsan Ullah and Muhammad Faisal (appellants) does not advance the case of prosecution; that alleged recovery of wrist watch at the instance of Muhammad Sohaib (appellant) is of no avail to the prosecution; that viewing from all angles the prosecution case is doubtful in nature and the appellants are entitled to the benefit of doubt not as a matter of grace but as of right.

5. On the other hand, learned Deputy Prosecutor General assisted by learned counsel for the complainant opposes these appeals on the grounds that matter was reported to the police with due promptitude; that though the names of the appellants are not mentioned in the FIR but this sole circumstance goes a long way to establish bona fide of the complainant because had there been any malice on the part of the complainant, the appellants could have straightaway been nominated in the FIR; that the appellants were rightly identified during the course of identification parade; that ocular account is fully supported by medical evidence; that prosecution case is fully supported by medical evidence and further corroborated by the recoveries of 30 bore pistols, cash and wrist watch at the instance of appellants; that the prosecution has successfully brought home guilt against the appellants beyond any shadow of doubt and there is no merit in these appeals.

6. We have heard learned counsel for the parties as well as the learned Deputy Prosecutor General for the State and gone through the record with their able assistance.

7. Ocular account in this case was furnished by Muhammad Maskeen, complainant. (PW.8), Muhammad Yousaf (PW.9) and Muhammad Yasin (PW.10). In the FIR it was the case of complainant that he along with his maternal nephews Iftikhar Ahmad (deceased) and Saud Hussain (PW given up) were coming from Gujranwala to their village on motorcycle and when they reached at Pulli near Chhamb Moor, three unknown accused armed with pistols stopped them and asked to switch off the light of motorcycle. Two of the accused made the complainant and Saud Hussain to stand aside, while the third accused made fire shot from his pistol on Iftikhar Ahmad, which landed on his head, who fell down and succumbed to the injury. The presence of complainant (PW.8) on the spot at the time of incident is doubtful in nature because he allegedly saw the incident from a close distance but we failed to understand that in the presence of said PW, who was real maternal uncle of deceased, how such tragedy with the deceased could happen without any intervention on his part to rescue the deceased. In the FIR it was the case of complainant that Ihsan Ullah (appellant) caused single firearm injury on the head of Iftikhar Ahmad whereas the doctor (PW.11) who conducted autopsy of the dead-body of deceased noted two firearm injuries on his person. The story of prosecution as mentioned in the FIR is improbable and does not appeal to a prudent mind because there is no mention in the FIR as to who prompted the accused to fire upon Iftikhar Ahmad because as per prosecution's own story the deceased did not make any resistance on the spot at the time of incident. Moreover in the FIR it was not the case of complainant that Muhammad Yousaf (PW.9) and Muhammad Yasin (PW.10) were present on the spot at the time of incident and that the appellants also committed dacoity with them. The names of both these PWs are not mentioned in the FIR. Therefore, we hold that the evidence furnished by all the above said three PWs is doubtful in nature and cannot be relied upon for maintaining the convictions of the appellants. Moreover, the identification parade conducted in this case carries no value in the eye of law because the same was held jointly in which the appellants had been made to sit jointly alongwith thirty dummies. Holding of a joint identification parade of multiple accused persons in one go has been disapproved by the Hon'ble Supreme Court of Pakistan in a recent judgment passed in case titled "Gulfam and another v. The State" (2017 SCMR 1189).

8. So far as the alleged recoveries of .30 bore pistols at the instance of appellants are concerned the same are immaterial because the appellants got recovered the said pistol from a graveyard which was an open place, accessible to everyone. Moreover, report of PFSA (Exh.PCC) qua the pistol allegedly recovered from Ihsan Ullah (appellant) is in the negative. As far as alleged recovery of wrist watch at the instance of Muhammad Shoaib is concerned the same is of no avail to the prosecution because it vas ordinary watch, easily available in the market. Likewise, alleged recovery of currency notes at the instance of Ihsan Ullah and Umer (appellants) is not helpful for the prosecution because such like currency notes are available in wide circulation and no denomination of the said currency notes has been mentioned in the FIR.

9. As far as medical evidence is concerned, the same may confirm the ocular account with regard to the receipt of injury, locale of injury, kind of weapon used for causing the injury, duration between the injury and the death but it would not tell the names of the assailants. Reliance is placed on "Ata Muhammad and another v. The State" (1995 SCMR 599).

10. So far as the defence plea taken by the appellants in their statements under section 342, Code of Criminal Procedure are concerned, since the prosecution evidence is doubtful in nature, therefore, there is no need to discuss the same which are exculpatory in nature.

11. We have considered all the pros and cons of this case and have come to this irresistible conclusion that the prosecution could not prove its case against the appellants beyond any shadow of doubt. It is, by now well established principle of law that it is the prosecution, which has to prove its case against the accused by standing on its own legs and it cannot take any benefit from the weaknesses of the case of the defence. In the instant case, the prosecution remained failed to discharge its responsibility of proving the case against the appellants. It is also well established that if there is a single circumstance which creates doubt regarding the prosecution case, the same is sufficient to give benefit or doubt to the accused, whereas, the instant case is replete with number of circumstances which have created serious doubt about the prosecution story. Reliance is place on case law titled as "Muhammad Akram v. The State" (2009 SCMR 230).

12. For the foregoing reasons, all the four appeals separately filed by Ihsan Ullah, Muhammad Shoaib, Muhammad Faisal and Muhammad Umer (appellants) are allowed, convictions and sentences awarded to them vide judgment dated 18.04.2017 passed by the learned Additional Sessions Judge, Daska are set aside and the appellants are acquitted of the charges levelled against them while extending them benefit of doubt. The appellants are in jail. They shall be released forthwith if not required to be detained in any other case.

13. Murder Reference No.277 of 2017 is answered in the NEGATIVE and the sentence of death awarded to Ihsan Utah (convict) is NOT CONFIRMED. SA/I-1/L Appeals allowed.