IFTIKHAR alias KAKA Versus State
ABDUL SAMI KHAN, J.--- Through this criminal appeal under section 410, Cr.P.C. Iftikhar alias Kaka appellant has challenged his conviction and sentence awarded by learned Additional Sessions Judge, Faisalabad in case FIR No.417/08 dated 13.10.2008 for the offences under sections 302, 34, P.P.C., registered at Police Station Raza Abad, Faisalabad, vide judgment dated 15.06.2010, the same is reproduced as under:-
๏ Under section 302(b), P.P.C. read with section 34, P.P.C. to undergo life imprisonment with direction to pay Rs.50,000/- as under section 544-A, Cr.P.C. recoverable as the arrears of land revenue and in default thereof to further undergo 06-months' S.I.
2. Brief facts of the case according to FIR (Ex.PA/2) are that Sajjad Ahmad complainant was resident of Chak No.279/RB Khurd Faisalabad and was running a shop of welding at Mohallah Madina Abad, Street No.12. On 13.10.2008 at 01:30 p.m. he and his brother Muhammad Shahid were sitting in his shop when accused Amjad Javed along with two unknown accused came there. Accused Amjad raised "lalkara" to teach Muhammad Shahid a lesson for insulting him, upon which the unknown accused dragged Muhammad Shahid and brought him outside the shop. Accused Amjad made a straight fire shot with pistol upon Muhammad Shahid hitting him on front side of neck and he fell down. The accused gave kick blows to Muhammad Shahid and upon hearing hue and cry of the complainant, Muhammad Akram and Abid Ali, who were standing nearby, also attracted to the spot and witnessed the occurrence. They beseeched the accused and rescued Muhammad Shahid from the assailants, but he succumbed to the injuries at the spot, whereas the accused successfully escaped from the place of occurrence.
Motive behind the occurrence was that sometime before the incident, an altercation took place between Amjad etc. and Muhammad Shahid deceased, for which the accused kept grudge and committed murder of Muhammad Shahid with their common intention.
3. After registration of FIR, investigation of the case was conducted by Bashir Ahmad S.I, and Hamid Javaid Ali S.I. During investigation, Sajjad Ahmad complainant nominated Iftikhar alias Kaka appellant along with Sheikh Umar in place of two unknown accused vide supplementary statement dated 15.10.2008. Initially the appellant along with his co-accused namely Sheikh Umar and Amjad Javaid were declared proclaimed offenders; later on the appellant was arrested in connection with this case and after completion of investigation, report under section 173, Cr.P.C. was submitted in the learned trial court. At the commencement of trial, after observing legal formalities, learned trial court framed charge against the appellant, to which he pleaded not guilty and claimed trial. To prove its case, the prosecution produced as many as thirteen witnesses during trial before the learned trial court. Ocular account was furnished by Sajjad Ahmad complainant (PW-7) and Muhammad Akram (PW-8). Ghulam Muhammad (PW-9) deposed that he disclosed the names of appellant and his unknown co-accused to Sajjad Ahmad complainant (PW-7) and Muhammad Akram (PW-8). Medical evidence was furnished by Dr. Muhammad Naeem (PW-4) who conducted postmortem examination on the dead body of the deceased. Hamid Javaid Ali S.I. (PW-12) and Bashir Ahmad S.I. (PW-13) testified the investigation conducted by them. The remaining prosecution witnesses, more or less, are formal in nature. After tendering in evidence the report of Chemical Examiner (Ex.PP) and that of Serologist (Ex.PQ), the prosecution closed its evidence. After completion of prosecution evidence, statement of the appellant under section 342, Cr.P.C. was recorded by the learned trial court, wherein he professed innocence and pleaded false implication in the case. He did not opt to get record his statement under section 340(2), Cr.P.C. and did not produce any witness in his defence.
4. Upon culmination of the trial, after thrashing entire evidence and evaluating arguments advanced by learned counsel for the parties in support of their respective versions, learned trial court found the prosecution's case against the appellant to have been proved beyond reasonable doubt, convicted and sentenced him as mentioned and detailed in paragraph No.1 above. Hence, the instant appeal before this Court.
5. Learned counsel for the appellant submitted that the prosecution has miserably failed to bring the guilt of the appellant to the hilt hence, he deserves clean acquittal. On the other hand, learned Deputy Prosecutor General assisted by learned counsel for the complainant contended that the prosecution has amply proved its case against the appellant beyond any reasonable doubt and the impugned judgment does not call for any interference by this Court, so the conviction and sentences of the appellant be maintained and his appeal be dismissed.
6. I have heard the learned counsel for the appellant, learned Deputy Prosecutor General and learned counsel for the complainant and have also gone through the record with their able assistance. As per FIR (Ex.PA/2), the occurrence took place on 13.10.2008 at 01:30 p.m. and the matter was reported to the police by Sajjad Ahmad complainant (PW-7) by moving application for registration of FIR (Ex.PA) before the concerned Station House Officer, in consequence of which FIR (Ex.PA/2) was chalked out at Police Station Raza Abad Faisalabad on the same day at 02:15 p.m. The place of occurrence is at a distance of one and a half kilometers from the police station. It is apparent that the FIR (Ex.PA/2) was chalked out within the short span of just forty five minutes, yet the fact remains that the appellant is not named therein as the culprit of the offence and in this eventuality, promptness in lodging FIR (Ex.PA/2) does not render any sort of corroboration to the case of the prosecution qua the appellant.
7. As observed in the preceding paragraph, Iftikhar alias Kaka appellant is not named in FIR (Ex.PA/2) and even no specific role has been assigned to him therein. Similarly the narrations of FIR shows that the appellant was not equipped with any weapon at the time of occurrence. During trial, Sajjad Ahmad complainant (PW-7) and Muhammad Akram eye-witness (PW-8) again did not attribute any specific role to the appellant, however, both of them made an improvement to the effect that he was armed with pistol. The only allegations leveled against the appellant, in FIR (Ex.PA/2) as well as in the statements of Sajjad Ahmad complainant (PW-7) and Muhammad Akram eye-witness (PW-8) is that he along with Umar Sheikh co-accused (P.O.) dragged the deceased from the shop and brought out him and when the deceased had fallen on the ground after sustaining firearm injury at the hands of Amjad Javaid co-accused (P.O.), the appellant along with his co-accused allegedly gave kick blows to the deceased. In this regard I have examined postmortem report (Ex.PK) of the deceased as well as the statement of Dr. Muhammad Naeem (PW-4) who conducted postmortem examination on the dead body of the deceased. It is very much clear that the doctor (PW-4) observed only one injury i.e. "a firearm wound of entry 3 x 2 cm in size on right side of neck 1 cm from mid line and 4 cm above right clavicle" which is specifically attributed to Amjad Javaid co-accused (P.O.) and except this injury, not even a scratch could be observed by the doctor on the dead body of the deceased. Thus the allegation of dragging the deceased and giving him kick blows by the appellant is clearly not supported by the medical evidence.
8. Another important aspect of the case is that it was a broad daylight incident, whereas the appellant as well as the complainant and the eye-witnesses are residents of the same locality, but surprisingly enough none of them could identify the appellant at the spot. It does not appeal to prudent mind that when the eye-witnesses and the appellant were residents of same area, then why he has not been named in FIR and this aspect clearly shows that he has been involved in this case by the complainant through supplementary statement due to some extraneous consideration. Moreover, Sajjad Ahmad complainant (PW-7) has also not mentioned any features of the unknown accused in his application for registration of FIR (Ex.PA) and same is the position of statement under section 161, Cr.P.C. of Muhammad Akram eye-witness (PW-8). Since the appellant was not named in FIR, therefore, holding of identification test was essential as held in case of "Farman Ali v. The State" (1997 SCMR 971) and "State through Advocate-General, Sindh, Karachi v. Farman Hussain and others" (1995 PLD SC 1). In the absence of identification parade, implication of the appellant by way of supplementary statement though banked upon with vehemence cannot advance the plea of prosecution to prove the culpability of appellant.
9. Apart from the above discrepancies, no incriminating material was recovered from the appellant during the course of investigation which could support the case of the prosecution against him. Moreover motive part of the prosecution case is also attributed to co-accused Amjad Javed (P.O.) and not the appellant.
10. The available record shows that apparently the learned trial court has held the appellant vicariously liable for the acts of his co-accused, but what to say about vicarious liability of the appellant when his partition in the commission of offence is not proved beyond the shadow of doubt. I have noted that the case to the extent of the appellant is of doubtful nature and his conviction and sentence cannot be maintained under the above discussed facts and circumstances. It is settled by the Apex Court of the country that in case of doubt, its benefit must go to the accused not as a matter of grace but of right. The same proposition came up for consideration in the case reported as "Muhammad Akram v. The State" (2009 SCMR 230), wherein, at page 236, Hon'ble Supreme Court of Pakistan has been pleased to hold as under:-
"13. 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". (emphasis supplied)
11. 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. 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 the accused instead of the prosecution. Reliance can be placed on the case of "Waqar Nazir and others v. The State" (2007 SCMR 661). The rule of benefit of doubt, which is described as be golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. So, after considering all the circumstances, this Court is of the considered view that the prosecution has failed to prove its case against the appellant beyond any shadow of doubt, therefore, this appeal is allowed, the impugned judgment is set aside and the appellant is acquitted of charges leveled against him in the instant case. He is in jail, be released forthwith if not required to be detained in any other case.
JK/I-32/L Appeal allowed.