PLJ 2021 Cr.C. (Note) 27
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviction and sentence--Challenge to--Qatl-e-amd--Murder reference--Benefit of doubt--The Court while accepting Criminal Appeal filed by (co-convicts of Ali Akbar appellant) against their convictions, tried separately when appellant was P.O., acquitted them by setting aside judgment passed by trial Court in case under Sections 302, 148, 149, PPC--Acquitted accused were attributed fire-arm injuries on, person of deceased who have been acquitted by High Court by disbelieving evidence of complainant P.W.1 (real brother of deceased) and cousins of dceased P.W.2, same evidence cannot be believed to extent of appellant in absence of any independent corroboratory evidence which is conspicuously missing in present case--This witness has not stated in his statement (examination-in-chief) that quarrel had taken place between appellant and deceased one day prior to occurrence as has been mentioned in FIR--This witness has also not stated in his statement (examination-in-chief) that whether amount demanded by deceased from appellant was a loan or otherwise--This ambiguous motive is not believable--Argument of counsel for complaint that appellant remained absconder for about one year, and his absconsion is sufficient for his conviction, has no substance because mere absconsion is not conclusive proof of guilt of an accused person--It is only a suspicious circumstance against an accused that he
was found guilty of offence--However, suspicions after all are suspicions--Same cannot take place of proof--Appeal was accepted and appellant was acquitted. [Para 12, 13, 15 & 16] A, B, C & D
PLD 2009 SC 53 and 2016 SCMR 1763 ref.
Benefit of doubt--
----It is settled principle of law that for giving benefit of doubt, it is
not necessary that there should be many circumstances creating doubt--If there is a circumstance which creates reasonable doubt in prudent mind about guilt of accused, then he would be entitled to its benefit not as a matter of grace or concession, but as of right.
[Para 17] E
2009 SCMR 230.
Barrister Suleman Safdar, Advocate for Appellant.
Mr. Shahnawaz Khan Niazi, Advocate for Complainant.
Ch. Zubair Ahmad Farooq, APG for State.
Date of hearing: 27.9.2017.
PLJ 2021 Cr.C. (Note) 27
[Lahore High Court, Lahore]
Present: Shehram Sarwar Ch. and Sadaqat Ali Khan, JJ.
versus
STATE and another--Respondents
Crl. A. No. 227 & M.R. No. 66 of 2014, decided on 27.9.2017.
Judgment
Sadaqat Ali Khan, J.--This single judgment shall dispose of Criminal Appeal No. 227 of 2014 filed by Ali Akbar appellant (against his conviction) and Murder Reference No. 66 of 2014 sent by the learned trial Court for confirmation of the death sentence of Ali Akbar appellant or otherwise as both the above mentioned matters have arisen out of the same judgment dated 31.01.2014 passed by learned Additional Sessions Judge, Sialkot according to which the appellant was convicted and sentenced as under:
Ali Akbar appellant was convicted under Section 302(b), PPC and sentenced to death with compensation of Rs. 1,00,000/- under Section 544-A, Cr.P.C. to the legal heirs of Muhammad Alam deceased. The compensation shall be recoverable as arrears of land revenue and in default whereof to further undergo six months S.I.
He was convicted under Section 148, PPC and sentenced to two years R.I. with fine of Rs. 25,000/- and in default whereof to further undergo three months S.I. in case FIR No. 50 dated 04.02.2008 under Sections 302, 148, 149, PPC, Police Station Saddar Sialkot.
2. The facts of the case have been stated by Muhammad Rafique complainant P.W. 1 (real brother of Muhammad Alam deceased) in his statement before the learned trial Court which is hereby reproduced for narration of the facts:
“On 04.04.2008 then said 04.02.2008 at 10.30 a.m. I was present in the house of my paternal aunt when I heard noise, upon this I reached at the place of occurrence. My brother Muhammad Alam was going to sell newspapers. Ali Akbar (accused present in the Court) armed with .30 bore, Amjad alias Ambu, Ameen Butt, Suleman armed with .30 bore pistol, Saeed alias Gama armed, with .30 bore pistol, Qadeer alias Pira encircled Muhammad Alam. Qadeer alias Pira raised lalkara that Muhammad Alam be taught a lesson of quarrel. Upon which Ali Akbar (accused present in the Court) made first fire that landed at the chest of Muhammad Alam, then Amjad alias Ambu made fire that landed at the right side of chest of Muhammad Alam who fell down from his motor cycle. Then Saeed alias Gama made two fires that landed at penis of Muhammad Alam. Saeed alias Gama made an other fire shot that landed at the thigh of Muhammad Alam. Suleman made fire that landed at thigh of Muhammad Alam. Suleman made first that landed at thigh of Muhammad Alam. Amjad alias Ambu fired at penis of Muhammad Alam. Ali Akbar (accused present in the Court) made fire that landed under the shoulder at kidney of Muhammad Alam. Ameen Butt made four fires that landed under the shoulder of Muhammad Alam. Then said at the back side of Muhammad Alam. The occurrence was seen by me, Muhammad Jameel s/o Muhammad Mumtaz, Muhammad Khalil s/o Muhammad Mumtaz, Muhammad Javaid and Qamer Din s/o Muhammad Anwar. We witnessed the occurrence from the Havaili of Anwar Butt where we entered while running. Accused Ali Akbar was an employee with us and my younger brother had to receive an amount of Rs. 17000/18000/- from him. One day prior to occurrence the amount was demanded. For this reason my brother had been murdered. My brother died in the village. Other accused persons have already been convicted. Obviously we reported the matter to police. I submitted written application Ex. PA that bears my signatures as Ex.PA/1. Police arrived at place of occurrence. Blood was secured through cotton vide memo. Ex.PB attested by me and Khalil."
3. After registration of the case, investigation started and on completion of the same report under Section 173, Cr.P.C. was submitted in the trial Court.
4. Learned trial Court after observing legal formalities provided under the Criminal Procedure Code framed the charge on 25.11.2010 against Ali Akbar appellant unders Sections 302, 148, 149, PPC to which he pleaded not guilty and prosecution evidence was summoned.
5. The prosecution produced the following witnesses during the trial before the learned trial Court:
Muhammad Rafique | P.W.1 |
Muhammad Jameel Anjum | P.W.2 |
Shakil Khan ASI | P.W.3 |
Muhammad Shahbaz | P.W.4 |
Ihsan Elahi | P.W.5 |
Muhammad Javaid Asghar | P.W.6 |
Mirza Tahir Tasleem, Draftsman | P.W.7 |
Muhammad Zia Ullah | P.W.8 |
Muhammad Afzal | P.W.9 |
Muhammad Arif S.I. | P.W.10 |
Muhammad Arif Gujjar S.I. | P.W.11 |
Muhammad Ilyas S.I. | P.W.12 |
Dr. Muhammad Arif | P.W.13 |
whereas P.Ws. Javed Iqbal S.I., Khalil Ahmad (being unnecessary) and Abdur Razzaq S.I. (being dead and unnecessary) were given up and while tendering certain documents i.e. report of Chemical Examiner Ex.P.N., report of Serologist Ex.P.O and that of Forensic Science Laboratory Ex.P.P., prosecution closed its evidence.
6. Dr. Muhammad Arif appeared as P.W.13 and deposed as under:
“The record of post-mortem Report No. 14/2008 conducted by Dr. Mudassar Munir on 04.02.2008 of Muhammad Alam son of Muhammad Anwar aged 32 years, resident of Hudhal, P.S. Saddar Sialkot is with me. Carbon copy of the same is on judicial file. Dr. Mudassar Munir has gone abroad and is not available and I have been deputed by DMLO to depose in this case. I recognize handwriting and signature of Dr. Mudassar Munir. Carbon copy of post-mortem report is Ex.PM along with pictorial Diagrams Ex.PM/1 and Ex.PM2 and signature of Dr. Mudassar Munir on the report is Ex.PM/3.”
7. On the other hand, statement of Ali Akbar appellant under Section 342, Cr.P.C. was recorded in which he refuted the allegations leveled against him by the prosecution. The appellant has neither opted to appear under Section 340(2), Cr.P.C. nor produced any oral defence evidence. However, he produced Ex.D.A. to Ex.D.C. in his documentary defence evidence. In reply to the question “Why this case against you and why the PWs deposed against you? Ali Akbar appellant replied as under:
“This case has been registered against me and my family members wrongly, mala fidely, due to the reason that Tahir Mehmood Hundli Ex.MPA is our political rival in village Hundal, who along with his co-accused attacked my co-accused Muhammad Saeed son of Muhammad Sharif resident of village Hundal Tehsil Sialkot and said Saeed was injured in said attack and later on his leg was amputated due to injuries and case FIR No. 235 of 2005 dated 20.05.2005 under Sections 324/148/149, PPC was got registered against Tahir Mehmood Hundli Ex.MPA etc. at Police Station Saddar, Sialkot. Muhammad Alam deceased of this case was murdered by some unknown culprits and it was an unseen occurrence. Complainant party is voter, supporters, financer and investor of said Tahir Hundli Ex.MPA. The complainant party has ropped me and my family members in this case at the instance of said Tahir Hundli due to political rivalry and grudge of above said case mala fidely, wrongly, in connivance with Dr. Mudassar Munir Ex. Medical Officer ALMH, Sialkot, local police etc.”
8. After conclusion of the trial, learned trial Court convicted Ali Akbar appellant with above stated sentences. Hence this appeal.
9. Learned counsel for Ali Akbar appellant has contended that:-
i. the judgment of the, trial Court dated 31.01.2014 is against law and facts of the case and is liable to be set-aside;
ii. it is submitted that the story of the prosecution is improbable and not believable;
iii. it is further submitted that prosecution has failed to prove its case against the appellant beyond shadow of doubt and the learned trial Court wrongly convicted appellant in surmises and conjectures;
iv. and lastly submitted for the acceptance of the appeal of the present appellant.
10. On the other hand, learned APG assisted by learned counsel for the complainant has vehemently opposed the appeal and submitted that the prosecution has proved its case beyond any shadow of doubt against Ali Akbar appellant with solid evidence and prayed for the dismissal of the present appeal.
11. We have heard the learned counsel for the appellant as well as learned APG assisted by learned counsel for the complainant and perused the record.
12. It is important to note here that we today (27.09.2017) while accepting Criminal Appeal No. 1714 of 2010 filed by Muhammad Saeed alias Gama, Muhammad Suleman and Muhammad Amjad alias Amba (co-convicts of Ali Akbar appellant) against their convictions, tried separately when Ali Akbar appellant was P.O., acquitted them by setting aside judgment dated 28.05.2010 passed by the learned trial Court in case FIR No. 50 dated 04.02.2008 under Sections 302, 148, 149, PPC, Police Station Saddar Sialkot, by observing as under:
“15. According to the FIR Ex.P.B/1, occurrence took place on 04.02.2008 at 10:30 a.m. whereas FIR was lodged on the same day i.e. 04.02.2008 at 12:20 p.m. (noon) on the written application Ex.P.B. moved by Muhammad Rafique complainant P.W.5, real brother of Muhammad Alam deceased who was murdered in the street in front of the houses of Muhammad Anwar Butt, Rora son of Ahmad Din and Muhammad Sher (none of the resident of these houses appeared before the learned trial Court to support the prosecution story, Jamil Akhtar (Phoophi Zaad of Muhammad Alam deceased) P.W.6 admitted in cross-examination that there are residential houses of different persons at the place of occurrence but the Investigating Officer did not join them in the investigation). FIR has been lodged with unexplained delay of about two hours mentioned above. The distance between place of occurrence and Police Station is 6 K.Ms, as mentioned in column No. 4 of FIR Ex.P.B/1. Although in some circumstances a delay of two hours may not be of much importance yet in the facts and circumstances of the present case as they have happened, the delay has great significance. It can be attributed to consultation, taking instructions and calculatedly preparing report keeping the names of accused open for roping in such persons whom ultimately prosecution may wish to implicate. Reliance is placed on the case titled “Mehmood Ahmad and 3 others vs. The State and another” (1995 SCMR 127).
16. Perusal of post-mortem report Ex.P.E. pertaining to Muhammad Alam deceased shows that post-mortem examination was conducted on his body on 04.02.2008 at 9:15 p.m. with delay of above 11-hours. Muhammad Arif S.I./Investigating Officer of this case P.W.11 stated in his statement (examination-in-chief) that on 04.02.2008 when he was posted at Police Station Saddar Sialkot after receiving information about the occurrence, he along with other police officials reached the place of occurrence where Muhammad Rafique complainant P.W.5 (real brother of Muhammad Alam deceased) produced before him written application Ex.P.B, his endorsement on it is Ex.P.B/2, perusal of which shows that this application (Ex.P.B) has been handed over by Muhammad Rafique complainant P.W.5 (real brother of Muhammad Alam deceased) to this witness (Muhammad Arif S.I./Investigating Officer of this case P.W.11) in the Civil Hospital, Sialkot at 12.05 p.m. (noon) on 04.02.2008 from where he sent the same for registration of FIR, which is contrary to his statement (Muhammad Arif S.I./Investigating Officer of this case P.W.11) discussed earlier, relevant portion of it is hereby reproduced as under:
"کاروائی پولیس: اس وقت میں معہ غلام فرید 599/C محمد افضل 292/C احسان الہی 2014/C وقوعہ ہذا کی اطلاع پاکر سول ہسپتال سیالکوٹ پہنچا ہوں تو مسمی محمد رفیق ولد محمد انور قوم راجپوت سکنہ ہندل نے ایک تحریری درخواست میرے پیش کی۔ درخواست مضمون سے سردست صورت جرم 148/149/302 ت پ پائی جاتی ہے لہذا درخواست بغرض اندراج مقدمہ بدست غلام فرید 599/C ارسال تھانہ ہے مقدمہ درج رجسٹر کرکے نمبر مقدمہ سے اطلاع دی جائے نیز سپیشل رپورٹ افسران مجاز کی خدمت میں ارسال کی جائے میں مصروف تفتیش ہوں۔
محمد عارف S.I. تھانہ صدر سیالکوٹ
از سول ہسپتال سیالکوٹ
بوقت 12/5 بجیدن
مورخہ 4.2.2008"
Muhammad Rafique complainant P.W.5 (real brother of Muhammad Alam deceased) has not stated in his statement (examination-in-chief) that at which place he had produced the written application Ex.P.B. to Muhammad Arif S.I./ Investigating Officer of this case P.W.11 rather simply stated in his statement that he reported the matter to the police and produced application Ex.P.B. to Muhammad Arif S.I./Investigating Officer of this case P.W.11. It is important to note here that Muhammad Rafjque complainant P.W.5 (real brother of Muhammad Alam deceased) Jamil Akhtar (Phoophi Zaad of Muhammad Alam deceased) P.W.6 and Qamar-ud-Din (real brother of Muhammad Alam deceased) P.W.7 have not stated in their statements (examination-in-chief) that at which place, police met them and at which time, dead body of Muhammad Alam deceased was removed from the place of occurrence. According to the application Ex.P.B. and its endorsement Ex.P.B/2, Muhammad Rafique complainant P.W.5 (real brother of Muhammad Alam deceased) was present in the Civil Hospital, Sialkot at 12:05 p.m. (noon) on 04.02.2008 along with dead body of Muhammad Alam deceased where he produced application Ex.P.B. to Muhammad Arif S.I./Investigating Officer of this case P.W.11, but this witness (Muhammad Rafique complainant P.W.5, real brother of Muhammad Alam deceased) has not Stated in his statement (examination-in-chief) that he had taken the dead body of Muhammad Alam deceased from the place of occurrence to Civil Hospital, Sialkot. Postmortem report Ex.P.E. does not show that the dead body of Muhammad Alam deceased was received in the hospital on 04.02.2008 at 12:05 p.m. (noon). Further, Muhammad Rafique complainant P.W.5 (real brother of Muhammad Alam deceased) stated in cross-examination that after the occurrence, they informed the police through telephone, police arrived at the place of occurrence at 12:30 p.m. (noon) (which is contrary to his written application Ex.P.B. and its endorsement Ex.P.B/2, according to which Muhammad Rafique complainant P.W.5, real brother of Muhammad Alam deceased) was present in the hospital along with dead body of Muhammad Alam deceased at 12:05. p.m. (noon) on 04.02.2008 from where this application was handed over to Muhammad Arif S.I./Investigating Officer of this case P.W.11). Muhammad Rafique complainant P.W.5 (real brother of Muhammad Alam deceased) further stated in cross-examination that dead body was brought to the hospital by the police from the place of occurrence after 1½ hour of the occurrence and he went to the hospital on the day of occurrence at 1:00 p.m. Jamil Akhtar (Phoophi Zaad of Muhammad Alam deceased) P.W.6 and Qamar-ud-Din (real brother of Muhammad Alam deceased) P.W.7 also went to the hospital along with him. Muhammad Rafique complainant P.W.5 (real brother of Muhammad Alam deceased) further stated in cross-examination that at the time of occurrence, his brother Muhammad Alam deceased was on a motor cycle but he admitted in cross-examination that they did not produce the motor cycle of Muhammad Alam deceased to the police during the investigation. Scaled site-plan Ex.P.C. also does not show motor cycle of Muhammad Alam deceased at point “A” where Muhammad Alam deceased received fire-arm injuries. Jamil Akhtar (Phoophi Zaad of Muhammad Alam deceased) P.W.6 (eye-witness) while contradicting the statement of Muhammad Rafique complainant P.W.5 (real brother of Muhammad Alam deceased) stated in his cross-examination that police arrived at place of occurrence at 11:30 a.m. and took the dead body from there to mortuary at 1:30 p.m. (noon), which is contrary to post-mortem report Ex.P.E where it is specifically mentioned that post-mortem examination was started on 04.02.2008 at 9:15 p.m. and according to written application Ex.P.B. of Muhammad Rafique complainant P.W.5 (real brother of Muhammad Alam deceased) and its endorsement Ex.P.B/2, Muhammad Rafique complainant P.W.5 (real brother of Muhammad Alam deceased) along with dead body of Muhammad Alam deceased was present in Civil Hospital, Sialkot on 04.02.2008 at 12:05 p.m. (noon). This witness further stated that he went to the Civil Hospital alongwith dead body of Muhammad Alam deceased and stayed there for about 10-12 hours. This witness further admitted in cross-examination that there was residential houses of different persons near the place of occurrence, but the police did not join them in the investigation. Jamil Akhtar (Phoophi Zaad of Muhammad Alam deceased) P.W.6 further Stated that his statement was recorded by the police at 11:00 p.m. (noon) on the day of occurrence i.e. 04.02.2008 after post-mortem examination of Muhammad Alam deceased. He further stated that statement of Qamar-ud-Din (real brother of Muhammad Alam deceased) P.W.7 was recorded after two days of the occurrence by the police at Police Station. He further stated in cross-examination that his statement was recorded by the police at Police Station on the day of occurrence. This witness (Jamil Akhtar (Phoophi Zaad of Muhammad Alam deceased) P.W.6) further stated in cross-examination that application Ex.P.B was produced by Muhammad Rafique complainant P.W.5 (real brother of Muhammad Alam deceased) at the place of occurrence at about 12:00/12:30 p.m. (noon). Qamar-ud-Din (real brother of Muhammad Alam deceased) P.W.7 stated in his statement that his statement was recorded by the police on 04.02.2008 at 12:30 p.m. in the hospital. He further stated in cross-examination that Statement of Jamil Akhtar (Phoophi Zaad of Muhammad Alam deceased) P.W.6 was also recorded by the police on 04.02.2008 at 12:00/12:30 p.m. in the hospital. Considering the above discussed contradictory statements of Muhammad Rafique complainant P.W.5 (real brother of Muhammad Alam deceased), Jamil Akhtar (Phoophi Zaad of Muhammad Alam deceased) P.W.6 and Qamar-ud-Din (real brother of Muhammad Alam deceased) P.W.7 (eye-witnesses) and delayed post-mortem examination of Muhammad Alam deceased, we are of the view that all these three eye-witnesses were not present at the time of occurrence at the place of occurrence. It was an unseen occurrence. Finding the dead body of Muhammad Alam deceased, story of prosecution was cooked up by planting the said eye-witnesses.
17. Muhammad Rafique complainant P.W.5 (real brother of Muhammad Alam deceased) stated in his statement regarding the motive as under:
“Motive of this occurrence is that Ali Akbar accused had taken advance amount from my brother Alam and on that matter, a dispute had arisen one day earlier and accused had borne a grudge against my brother Alam.”
Muhammad Rafique complainant P.W.5 (real brother of Muhammad Alam deceased) himself stated that Muhammad Alam deceased was connected with business of selling newspapers. He further stated in his cross-examination that Ali Akbar (co-convict of Muhammad Saeed alias Gama, Muhammad Suleman and Muhununud Amjad alias Ambu appellants) had taken advance money for manufacturing caps from his brother (Muhammad Alam deceased) and this was the dispute between them. Prosecution did not produce any evidence showing that when and where and how much amount was received by Ali Akbar (co-convict of Muhammad Saeed alias Gama, Muhammad Suleman and Muhammad Amjad alias Ambu (appellants) as advance from Muhammad Alam deceased for manufacturing caps and thereafter dispute arose between them. Considering this, we are of the view that the prosecution has failed to prove motive.
18. Learned APG submits that nothing was recovered from Muhammad Saeed alias Gama, Muhammad Suleman and Muhammad Amjad alias Ambu appellants during interrogation.
19. It is important to note here that Muhammad Amin co-accused was also attributed fire-arm injuries on the person of Muhammad Alam deceased but he has been acquitted by the learned trial Court through the impugned judgment by disbelieving the evidence of above mentioned eye-witnesses but the complainant/State has not filed any appeal against his acquittal, as stated by learned APG., the same evidence cannot be believed to the extent of Muhammad Saeed alias Gama, Muhammad Suleman and Muhammad Amjad alias Ambu appellants in absence of any independent corroboratory evidence which is conspicuously missing in the present case. Reliance is placed on the case titled “Shahbaz vs. The State” (2016 SCMR 1763) in which Hon’ble Supreme Court of Pakistan has observed at page 1765 as under:
“The law is settled by now that if some eye-witnesses are disbelieved against some accused persons attributed effective roles then the same eye-witnesses cannot be relied upon to the extent of the other accused persons in the absence of any independent corroboration and a reference in this respect may be made to the cases of Ghulam Sikandar and another v. Mamaraz Khan and others (PLD 1985 SC 11), Sarfraz alias Sappi and 2 others v. The State (2000 SCMR 1758), Iftikhar Hussain and others v. The State (2004 SCMR 1185) and Akhtar Ali and others v. State (2008 SCMR 6). In the case in hand no independent corroboration worth its name was available to the extent of Shahbaz appellant inasmuch as the trial Court and the High Court had disbelieved the motive set up by the prosecution, the alleged recovery of a chhurri from the custody of the appellant was inconsequential because the recovered chhurri was not stained with blood.”
20. Considering above, we entertain serious doubt in our minds regarding involvement of Muhammad Saeed alias Gama, Muhammad Suleman and Muhammad Amjad alias Ambu appellants in the present case. It is settled principle of law that for giving benefit of doubt, it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates, reasonable doubt in the prudent mind about the guilt of the accused, then he would be entitled to its benefit not as a matter of grace or concession, but as of right. Reliance is placed on case reported as “Muhammad Akram vs. The State” (2009 SCMR 230), in which Hon’ble Supreme Court of Pakistan has observed in para No. 13 of page 236 as under:
“The nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right.”
21. For the foregoing reasons, Criminal Appeal No. 1714 of 2010 filed by Muhammad Saeed alias Gama, Muhammad Suleman and Muhammad Amjad alias Ambu appellants is accepted and convictions and sentences of Muhammad Saeed alias Gama, Muhammad Suleman and Muhammad Amjad alias Ambu appellants awarded by the learned Trial Court .through the impugned judgment are hereby set aside. Muhammad Saeed alias Gama, Muhammad Suleman and Muhammad Amjad alias Ambu appellants are acquitted of the charges in case FIR No. 50 dated 04.02.2008 under Sections 302, 148, 149, PPC, Police Station Saddar Sialkot. Muhammad Saeed alias Gama and Muhammad Suleman appellants are on bail. Their sureties stand discharged. Muhammad Amjad alias Ambu appellant is directed to be released forthwith if not required in any other case.”
13. Muhammad Saeed alias Gama, Muhammad Suleman and Muhammad Amjad alias Amba (acquitted accused) were attributed fire-arm injuries on the person of Muhammad Alam deceased who have been acquitted by this Court vide judgment dated 27.09.2017 by disbelieving the evidence of Muhammad Rafique complainant P.W.1 (real brother of Muhammad Alam deceased) and Muhammad Jameel Anjum (Jamil Akhtar) (Phoophi Zaad of Muhammad Alam deceased) P.W.2, the same evidence cannot be believed to the extent of Ali Akbar appellant in absence of any independent corroboratory evidence which is conspicuously missing in the present case. Reliance is placed on the case titled “Shahbaz vs. The State” (2016 SCMR 1763) in which Hon’ble Supreme Court of Pakistan has observed at page 1765 as under:
“The law is settled by now that if some eye-witnesses are disbelieved against some accused persons attributed effective roles then the same eye-witnesses cannot be relied upon to the extent of the other accused persons in the absence of any independent corroboration and a reference in this respect may be made to the cases of Ghulam Sikandar and another v. Mamaraz Khan and others (PLD 1985 SC 11), Sarfraz alias Sappi and 2 others v. The State (2000 SCMR 1758), Iftikhar Hussain and others v. The State (2004 SCMR 1185) and Akhtar Ali and others v. State (2008 SCMR 6). In the case in hand no independent corroboration worth its name was available to the extent of Shahbaz appellant inasmuch as the trial Court and the High Court had disbelieved the motive set up by the prosecution, the alleged recovery of a chhurri from the custody of the appellant was inconsequential because the recovered chhurri was not stained with blood.”
14. Recovery of pistol P-10 on pointing out of Ali Akbar appellant in absence of positive report of Forensic Science Laboratory regarding matching of crime empties with the weapon of offence, is inconsequential as learned APG submits that no crime empty has been recovered from the place of occurrence.
15. Muhammad Raftque complainant P.W. 1 (real brother of Muhammad Alam deceased) stated in FIR regarding motive of occurrence as under:
"وجہ عنادیہ ہے کہ میرے بھائی عالم نے علی اکبر سے پیشگی کام کے لئے لی تھی جو کہ رقم کا تقاضہ میرے بھائی نے کیا تھا جس پر ایک روز قبل جھگڑا ہوا تھا"
Muhammad Rafique complainant P.W.1 (real brother of Muhammad Alam deceased) while making improvements before the learned trial Court stated regarding motive as under:
“Accused Ali Akbar was an employee with us and my younger brother had to receive an amount of Rs. 17000/18000/- from him. One day prior to occurrence the amount was demanded.”
This witness has not stated in his statement (examination-in-chief) that quarrel had taken place between Ali Akbar appellant and Muhammad Alam deceased one day prior to the occurrence as has been mentioned in the FIR. This witness has also not stated in his statement (examination-in-chief) that whether the amount demanded by Muhammad Alam deceased from the Ali Akbar appellant was a loan or otherwise. This ambiguous motive is not believable.
16. The argument of learned counsel for the complaint that Ali Akbar appellant remained absconder for about one year and his absconsion is sufficient for his conviction, has no substance because mere absconsion is not conclusive proof of the guilt of an accused person. It is only a suspicious circumstance against an accused that he was found guilty of the offence. However, suspicions after all are suspicions. The same cannot take the place of proof. Reliance is placed on case titled “Muhammad Tasaweer vs. Hafiz Zulkarnain and 2 others” (PLD 2009 SC 53) wherein Hon’ble Supreme dourt of Pakistan has observed at pages 57 and 58 as under:
“13. Adverting to the question of abscondence, it may be stated that mere absconsion is not conclusive proof of guilt of an accused person. It is only a suspicious circumstances against an accused that he was found guilty of the offence. However, suspicions after all are suspicions. The same cannot take the place of proof. The value of absconsion, therefore, depends on the facts of each case. The Courts have admitted it as a supporting evidence of the guilt of accused. The absconsion of the accused may be consistent which is to be decided keeping in view overall facts of the case. In the instant case, the respondents appeared before the investigating officer of their own and they were not arrested.
14. In view of what has been discussed above, we do not find any ground to interfere with the impugned judgment which is maintained. Accordingly, the petition being devoid of force is dismissed.”
17. Considering above, we entertain serious doubt in our minds regarding participation of Ali Akbar appellant in the present case. It is settled principle of law that for giving benefit of doubt, it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in the prudent mind about the guilt of the accused, then he would be entitled to its benefit not as a matter of grace or concession, but as of right. Reliance is placed on case reported as “Muhammad Akram vs. The State” (2009 SCMR 230), in which Hon’ble Supreme Court of Pakistan has observed in para No. 13 of page 236 as under:
“The nutshell of the whole discussion is that the prosecution case is not free from doubts. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right.”
18. For the foregoing reasons, Criminal Appeal No. 227 of 2014 filed by Ali Akbar appellant is accepted and conviction and sentences of Ali Akbar appellant awarded by the learned Trial Court through the impugned judgment are hereby set aside. Ali Akbar appellant is acquitted of the charges in case FIR No. 50 dated 04.02.2008 under Sections 302, 148, 149 PPC, Police Station Saddar Sialkot. Ali Akbar appellant is directed to be released forthwith if not required in any other case. He is directed to be released forthwith if not required in any other case. Murder Reference No. 66 of 2014 is answered in NEGATIVE and death sentence of Ali Akbar appellant is NOT CONFIRMED.
(A.A.K.) Appeal accepted
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