1. ' MAQBOOL AHMED AWAN, J.--The appellant Haroon Lund preferred the present appeal against this conviction and sentence of death awarded to him vide judgment, dated 29-1-2004 under section 302/34, P.P.C. By learned IVth Additional Sessions Judge, Dadu and by way of the said judgment, the learned trial Judge has acquitted the co-accused namely Asghar alias Abdul Karim, Ghulam Hussain and Ghulam Nabi alias Gulabi by extending them benefit of doubt under section 266H(i), Cr . P. C ' The case of prosecution is that on 19-8-1999 at 0145 hours, complainant Kirir Shahani lodged F.I.R., stating therein that they are seven brothers viz, the complainant, Ranjhjo Khan, Jumo, Aziz, Dad Muhammad, Allah Bux and Hassan. Out of them Jumo is residing in a separate house and the remaining six brother are residing together in one and same house with their father. The relative of complainant party namely Misri Shahani is residing with his family at Karachi near to his house.
2. Haroon Lund was also residing and they were doing labour together. It is allege that Haroon Lund developed illicit relations with Mst. Bhanul, the daughter of Misri Shahani and he kidnapped her.
3. After that a Faisla (decision) was made and Haroon Lund had returned the hand of Mst. Bhanul to her father Misir Shahani. It is also alleged that complainant party got the hand of Mst. Bhanul for their brother Abdul Aziz and such marriage was solemnized. Upon hearing, Haroon Lund used to say that as to why the complainant party has taken the hand of Mst. Bhanul and he will kill them and their brother Abdul Aziz and Jumo. It is further alleged that on 18-8-1999, the complainant, his father and brother Ranjoh and two other younger brothers as usual after taking the night meal, went to sleep in the house, at about 12-30 a.m., on a gun fire, their brother Ranjha cried. On fire-arm report and cries, the complainant and his father awakened and saw on the light of bulb that Haroon Lund armed with gun and three unknown persons having hatchets in their hands were inflicting the injuries to Ranjho, the brother of complainant. The accused persons were identified on the light of bulb and complainant party claimed that three unknown persons would be identified on seeing again. In the meantime, the brother of complainant Jurno and neighbourer Rahimdad and others came running who had also seen the accused persons and tried to capture the accused, upon this the accused caused blows to father of complainant with Danda and butt of gun and who on receipt of injuries, fell down. The accused declared that they are on inimical terms with the complainant party over the hand of Mst. Bhanul, therefore, they should not come near to them. Saying so, accused ran away. The complainant then saw his brother Ranjho, having gun fire injury on his head and also Danda injuries on his person and blood was oozing from the said injuries and was lying unconscious. The complainant further alleged that he saw his father having injuries of Danda on his head and from the said injuries, blood was oozing. The complainant thereafter came at Police Station for report and alleged that accused Haroon Lund and three unknown persons at the instigation of Allahyar Lund due to above dispute Haroon Lund made fire upon his brother Ranjho on his head and co-accused caused injuries to his father with intention to kill them.
4. ' The police took up the investigation, arrested accused Asghar Ali alias Abdul Karim, Ghulam Hussain and Ghulam Nabi alias Gulabi, showing accused Haroon and Allayar as absconders, submitted the challan in the Court of Civil Judge and Judicial Magistrate Johi who sent up the same, to the Court of Session for trial and from where the same was received by learned IVth Additional Sessions Judge, Dadu for trial.
5. ' On 31-3-2001 a formal charge was framed against accused Asghar alias Abdul Karim, Ghulam Hussain, Ghulam Nabi alias Gulabi and appellant Haroon Lund. The accused pleaded not guilty and claimed to be tried.
6. ' The prosecution in order to substantiate the charge against the accused, examined P.W.1/Complainant Kirir at Exh.10 who produced F.I.R. At Exh.10-A, P.W.2. Jumo at Exh.13, P.W.3 Allah Rakhio at Exh.14, M.O/Doctor Naseer Ahmed Samejo at Exh.15 who produced Medico legal certificate at Exha.15/A, M.O./Doctor Khalid Ahmed Siddiqui at Exh.16 who produced post-mortem report at Exh.16/A, P.W.6 Manzoor Ahmed Panhwar at Exh.17, P.W.7 Gul Baig Shahani at Exh.18 who produced mashirnamas of place of wardat, injuries, clothes, inquest report of deceased Ranjho so also mashirnamas of arrest and recovery from accused Asghar alias Abdul Karim and accused Ghulam Nabi alias Gulabi at Exhs.18/A to 18/1, P.W.8 Mr. Ghuam Shah Judicial Magistrate at Exh.19 who produced mashirnama of identification of accused at Exh.19/A & B, P.W.9. Muhammad Yaqoob Buriro at Exh.20 who produced attested copy of chemical report at Exh.20/A. Thereafter, learned D.A.
7. Closed the side of prosecution at Exh.22.
8. ' The statements of accused were recorded under section 342, Cr.P.C. In which the appellant has claimed to be innocent and stated that on account of enmity, he has been falsely implicated by the complainant party. He has not examined himself on Oath nor led any evidence in his defence.
9. ' The learned counsel for appellant has contended that incident is unseen and the evidence of eye- witnesses namely complainant/P. W. Kirir, injured Allah Rakhio, the father of complainant and Jumo, the son of Allah Rakhio and brother of complainant is not inspiring confidence and stated that they are related inter se and are not truthful and conviction cannot be sustained on their evidence. He also argued that M.O. Who had conducted the postmortem of deceased Ranjho, falsified the ocular account furnished by the above P.Ws. He further argued that the above P.Ws. Claimed to have identified the accused at 12-30 a.m. In the light of bulb, however the memo. Of wardat does not mention the electric bulb at the place of occurrence and same was not disclosed by the complainant to the Investigating Officer. He has further argued that contradictions, improvements and exaggerations made in the evidence, render the whole case doubtful and it is well settled law that benefit of even slightest possible doubt must go in favour of the accused. He has also argued that on the basis of same evidence, co-accused Asghar alias Abdul Karim, Ghulam Hussain, Ghulam Nabi alias Gulabi have been acquitted therefore, the appellant is also entitled for the same treatment. He further argued that appellant had no motive to kill Ranjho when Abdul Aziz, the husband of Mst. Bhanul was also present at the place of incident but no injury was caused to him.
10. He submits that the statements under section 161, Cr. P. C. Of P. Ws. Jumo, Rahimdad and Allah Rakhio were recorded on 2-11-1999 after the delay of about two and half months which lost its evidentiary value. In support of his contentions, he has relied upon the following cases:--
(1) Akhtar Ali and others v. The State, reported in 2008 SCM R 6.
(2) Muhammad Rahim and others v. Bakht Muhammad and others reported in 2006 SCM R 1217.
(3) Ahmad Yar and others v. The State, reported in 1998 SCM R 715.
(4) Sheral alias Sher Muhammad v. The State, reported in 1999 SCM R 697.
(5) Bahir Ahmed alias Mannu v. The State, reported in 1996 SCM R 308.
(6) Iftikhar Hussain and others v. The State reported in 2004 SCM R 1185.
(7) Sarfraz alias Sappi and 2 others v. The State, reported in 2000 SCM R 1758.
(8) Abdul Khaliq v. The State, reported in 1996 SCM R 1553.
(9) Syed Saeed Muhammad Shah and another v. The State, reported in 1993 SCM R 550.
(10) Muhammad Khan v. Maula Bakhsh and another, reported in 1998 SCM R 570.
11. ' The learned Assistant A.-G. Supported the impugned judgment and contended that prosecution has fully established the case against the appellant. The appellant was shown as absconder in the challan however, he surrendered before the trial Court on 14-2-2000. The minor contradictions pointed out by learned counsel for appellant are not sufficient to disbelieve the whole evidence of prosecution witnesses who are natural and truthful witnesses and their evidence is inspiring confidence. He lastly urged that prosecution has proved the motive set up against the appellant. In support of his contentions, he has relied upon the case of Muhammad Pervaz and others v. The State and others, reported in 2007 SCM R 670 and the case of Ghulam Qadir v. The State, reported in PLD 2006 Supreme Court 61.
12. ' We have heard learned counsel for the parties and perused the material available on record with their able assistance.
13. ' The prosecution case rests on the ocular testimony of P.W.1/Complainant Kirir, P.W.2. Jumo and P.W.3 Allah Rakhio and the medical evidence consisting upon the M.O. Doctor Khalid Ahmed Siddiquie who conducted the post-mortem on the person of deceased Ranjho and M.O. Dr. Naseer Ahmed who examined the injured Allah Rakhio and the motive:- ' The relevant statements of the P. Ws. Are as under:-- ' P.W.1/Complainat Kirir at Exh.10, has deposed that:-- "We are 7 brothers and residing in the villages Chakar Khan. The incident had occurred about 2/3 years back. It was about 12-30 0- Clock of night the four accused had entered in the house and they were identified as Gulabi, Asghar, Haroon and Ghulam Hussain. Accused Haroon was holding gun, accused Gulabi and Ghulam Hussain were armed with dandas and accused Asghar was armed with hatchet. All the accused had challenged us and asked us that where is Mst. Bano who was wedded with my brother. The accused Haroon had fired from his gun on my brother Ranjhan on the back side of head, due to which he fell down, whereas other accused had caused lathi and hatchet blows to my brother Allah Rakhio. The accused had inflicted blunt side hatchet injury to my father. All the accused had restrained us that do not interfere. My brother Ranjhan had died due to injuries at the spot and subsequently the accused party after abusing had decamped from the spot. I had intimated the incident to the police post Chhind which had arrived at the place of vardat. The matter was initially informed to P.P. Chhini and thereafter, I registered at F.I.R. At Police Station T.R. Khan. The injured was removed by my brother to Civil Hospital, Dadu. We had also brought the deceased brother where doctor had confirmed about his death. The place of vardat was visited by the police."
14. ' P.W.2. Jumo at Exh.13, has deposed that:-- "Deceased Ranjhan was my real brother whereas complainant is also my brother. The incident had taken place about 3 years and one month back. My father, brothers and women folks were sleeping in our house and it was about 12-30 of the night, we woke-up on the screams and saw four persons had bragged in our house, they were identified as Haroon who was armed with gun and 3 un-identified accused were also with him, amongst them one was holding rifle and rest were armed with lathies. I saw accused Gulabi alias Ghulam Nabi who was armed with rifle who was not known. Accused Asghar now identified was armed with hatchet whereas Ghulam Hussain was holding lathi in his hand. On the arrival of accused they had enquired about Mst. Bhanul but my brother Ranjhan had replied that she had not living with us, abruptly accused Haroon had fired shot from his gun which hit his brother on the back side of his head. At that moment my father had tried to grapple with the accused Haroon but co-accused Asghar and Ghulam Hussain caused hatchet and lathi injuries on his body. Accused Haroon had started firing and challenged that any body coming in the way will be killed. At that moment co-accused Gulabi had also fired from his rifle. I did not sustain injury in the incident but my brother had received the injuries. After the incident accused had run away towards the northern side. We found that our brother had sustained the serious wounds therefore, my brother Kirir had proceeded to police for obtaining the reference letter to Hospital.
15. ' Later on we had removed my injured brother to Hospital and at about 4-00 p.m. The M.O. Had announced the death of his brother. The police had visited the place of vardat at about 11-00 a.m.
16. My statement was also recorded by the Police. Accused present in the Court are the same. The identification parade of the accused was held in which I was present. Accused Gulabi was identified in the identification test in the jail. Two other accused were identified in the parade before the Magistrate, their names are Asghar and Ghulam Hussain. The mashirnama of such identification was also prepared."
17. ' P.W. 3 Haji Allah Rakhio at Exh.14, deposed that:-- "Deceased Ranjhan was my son and he was residing with me. I have five sons. The incident had occurred about three years and 6 months back at about 1230 of night in my house, at that moment accused Haroon and 3 others who were not identified at that time had entered in my house and they had put question from his son Ranjhan regarding whereabouts of Mst. Bhanul daughter of Misri. On such reply accused Haroon had fired shot from his gun which hit his son due to which my son fell down and when he tried to intervene and protect his son, accused Haroon asked other companions and that this old man shall be attacked with hatchet and lathis. Accused had assaulted upon me and caused multiple injuries on my body whereas my son was killed by accused Haroon with weapon. The bulb was shining in my residence therefore, I had seen the offence of such incident on bulb. Mst. Bhanul was daughter of Misri and I had demanded the hand of girl for Abdul Aziz who is also my son. I do not know that on such plight the dispute had occurred which resulted the present incident. On the cries the village people had gathered and offenders had went away from the place of vardat. My sons were present when incident had occurred. Since I was in injured condition therefore, I had not known that who had registered the case. P.W. Jumo had removed me to Dadu Hospital for treatment. After some time I had regained my sense and came to known that my son Ranjhan was murdered in the incident. The police had taken my statement at the place of vardat. I' know accused .Haroon very well but since my eye sight is too weak and I do not properly see the accused present in the Court. My eye sight is weak due to injuries sustained by the accused."
18. ' P.W.4. Dr. Naseer Ahmed at Exhs.15. He has deposed that:- "I am working as Senior Medical Officer at Civil Hospital, Dadu. I have been directed to appear before the Court to verify signature of Dr. Punhoon Khan Mangnejo, as who has been expired. I produce Medical Certificate of injured Allah Rakhio son of Sahib Shahni as Exhs.15/A. The certificate bears the signature of Dr. Punhoon Khan Mangnejo who examined the said injured and had issued such certification."
19. ' P.W.5 M.O. Dr. Khalid Ahmed at Exhs.16, has deposed that:-- "On 19-8-1999 at 9-30 a.m. Dead body of deceased Ranjho son of Allah Rakhio Shahani aged about 25 eyars r/o Village Chakar Khan Shahni, Taluka, Johi District Dadu was brought by Mr. Manzoor Panhwar S.H.O. Police Station T.R. Khan Taluka Johi for postmortem and report. I started postmortem at 9-30 a.m. And finished the same at 11-30 a.m. On the same day. The dead body was identified by 1. Haji Gul Baig son of Jaffar Khan Shahani (Relative of the deceased) and 2. Latif son of Taj Muhammad Shahani (maternal cousin of deceased)."
20. ' P.W.6 S.H.O. Manzoor Ahmed at Exh.17, has deposed that:-- "On 19-8-1999, the complainant Kirir Shahani appeared at Police Station and lodged the F.I.R. At Exh.10/A which was recoded in his verbatim and thereafter, he referred both the injured i.e, Ranjho and Allah Rakhio to the hospital for examination, treatment and certificate. After preparing the memo. Of injuries of above said two injured in presence of mashirs Gul Baig and Haji Bakhar. Later on he proceeded to the scene of offence and in presence of complainant, inspected the vardat in presence of same mashirs. From the vardat, apart from the bloodstained earth, he secured one empty cartridge of .12 bore. He thereafter, searched for accused but could not find their whereabouts and on his transfer he handed over the police papers to WHC Nazeer Ahmed."
21. ' P.W.7 Gul Baig at Exh.18, has deposed that:-- "He acted as mashir of wardat along with co-mashir Haji Bakhar as well as mashir of injuries on the person of injured Allah Rakhio and Ranjho. He also acted as mashir of inquest report. He acted as mashir of arrest of accused Asghar, Ghulam Nabi alias Gulabi and Ghulam Hussain. He laso acted as mashir of recovery of Danda from accused Ghulam Hussain and hatchet from accused Asghar."
22. ' P.W.8 Mr. Ghulam Shah, the Civil Judge and Judicial Magistrate, Johi at Exh.19, has deposed that:-- "He conducted the identification parade of accused Ghulam Nabi alias Gulabi in presence of complainant Kiri and P.W. Jumo inside the District Jail Dadu on 4-12-1999. Such mashirnama of identification was duly attested by mashirs Gulab and Abdul Hakeem. The above said witness had also arranged the identification parade of accused Asghar alias Abdul Karim and Ghulam Hussain on 6-12-1999 in presence of above said mashirs. Such mashirnama was prepared and duly attested by above said mashirs."
23. ' P. W.
9. SIP/SIO Muhammad Yaqoob at Exh.20, has deposed that:-- "On 12-10-1999 he was posted as S.H.O. At Police Station Tando Raheem Khan, WHC handed over case papers in crime No,6/99 under sections 302, 324, P.P.C. For further investigation of the case.
24. Complainant has lodged F.I.R. Against 4 accused persons including one accused against whom the allegation of instigation was attributed. Two of accused were nominated while for remaining accused complainant has stated in the F.I.R. That he will identify them on seeing the culprits. Prior to his posting, the previous I.Os had recorded name of the one of the accused Asghar alias Abdul Karim Lund in the police case diaries under suspicious. During his investigation, he received names of accused Ghulam Nabi alias Gulabi and Ghulam Hussain spy under suspicion. On 2-11-1999 he had . Recorded 161, Cr.P.C. Statements of P. Ws. Jumo, Rahimdad and Allah Rakhio. During investigation he came to know that accused Ghulam Nabi alias Gulabi was already confined in another case at District Jail, Dadu. On 4-12-1999 he wrote a letter to Judicial Magistrate, Johi for the identification of arrested accused Ghulam Nabi alias Gulabi and the same was conducted inside the jail. Complainant Kirir and P.W. Jumo had identified accused Ghulam Nabi alias Gulabi as their real culprit. On 5-12-1999 he arrested accused Asghar alias Abdul karim and Ghulam Hussain from Radhani Mori near protective Band, in presence of mashirs Gul Baig and Haji Bakhar Shahani. Such mashirnama was prepared in presence of both mashirs. On 6-12-1999 he had produced accused Asghar alias Abdul Karim and Ghulam Hussain before Judicial Magistrate, Johi for identification parade. Complainant Kirir and P.W. Jumo identified both accused in identification parade to be their real culprits. On 14-12-1999 both arrested accused had voluntarily produced one hatchet and one lathi used by them in the commission of crime. He had secured the same and prepared such mashirnama in presence of mashirs namely Gul Baig and Ghulam Qadir. On 15-12-1999 accused Ghulam Nabi alias Gulabi was shown to be arrested in this case and was taken away from District Jail, Dadu to Police Station for the purpose of interrogation. He prepared such mashirnama of arrest in presence of mashirs Gul Baig and Ghulam Qadir. On the same day accused Ghulam Nabi alias Gulabi voluntarily prepared to produce rifle and 3 live bullets alleged to have been used by him in the commission of crime. Accused led the police party towards jungle in the north and east corner near to Begho jungle in presence of mashirs Gul Baig and Ghulam Qadir. On checking one fired empty bullet was lying in the chamber of rifle while 3 live bullets were also produced by the accuse along with .7 mm rifle. The same were sealed at the spot. He prepared such mashirnama in presence of above mashirs. He had also registered a separate case under section 13(e) Arms Ordinance against accused Ghulam Nabi alias Gulabi. After completion of usual investigation the challan was submitted before the competent Court of law, in which accused Haroon and Allahyar Lund were shown as absconders."
25. We have carefully and minutely considered the evidence of eye-witnesses mentioned above. We find that complainant and two P. Ws. Namely Jumo and Allah Rakhio have tried to improve and exaggerate the facts of the case. There appears contradictions in the depositions of the prosecution witnesses on the material points.
26. ' The complainant/P.W.1. Kirir deposed that accused after only abusing had decamped while P.W.2 Jumo has deposed that accused Ghulam Nabi had rifle and he also fired from his rifle which did not hit him, however his brother had received the injuries.
27. ' No where in the evidence, complainant/P.W.1. Has deposed that appellant Haroon had challenged the complainant not to interfere and started firing. However, P.W. Jumo has stated so and made exaggeration and improvement to that extent.
28. These two above witnesses in their depositions have not disclosed the source of light on the basis of which they had identified the accused. Not only this, they have not disclosed the feature descriptions of the co-accused. In this respect, the mashirnama of wardat is silent which was prepared by Investigating Officer on the pointation of complainant.
29. The above- said two witnesses in their evidence have not disclosed the names of unidentified accused. However, their evidence has been contradicted by P.W.3/injured Allah Rakhio who in his examination in chief has deposed that at that moment accused Haroon and three others who were not identified at that time had entered in his house.
30. ' The Complainant/P.W.1. Kirir in his examination in chief has deposed that:-- "My brother Ranjhan had died due to injuries on the spot We had also brought deceased brother where Doctor confirmed about his death."
31. 'The above stated fact of complainant/P.W.1 has been confirmed by P.W.6 who in his examination in chief has deposed that:-- "After registration of F.I.R. Both the injured persons were referred to hospital for examination, treatment and certificate while P.W.2. Jumo has contradicted the version of complainant about the death of deceased Ranjho at the spot and has deposed which is reproduced as under:-- "Later on I had removed my injured brother to hospital at about 4-00 p.m. M.O. Had announced the death of my injured brother Ranjho". "
32. In chief the complainant had suppressed the earlier story set up by him in the F.I.R., introduced the new story in evidence in examination in chief while not disclosing as to why they awakened and how the accused without noise entered into the house. The complainant while doing so has lost his credibility and his evidence become doubtful on the well known principle of criminal jurisprudence.
33. ' Again in the cross-examination, the complainant/P.W.1. Purposely denied the suggestions of the counsel and deposed as under:-- " It is incorrect to suggest that I had mentioned in my report that on fire shot voice myself and my father and brothers awakened."
34. ' It is further an admitted fact that complainant/P.W.1. Has stated in F.I.R. That he had not seen accused Haroon had fired upon Punhoon but while making improvement in the evidence he deposed that at about 12-30 in the night, on a gun fire his brother Ranjho cried, on fire and cry, he and his father awakened and seen in the light of bulb Haroon armed with gun.
35. ' P.W.2. Jumo, the brother of complainant, deceased Ranjho and son of Allah Rakhio in examination in chief has deposed as under:-- " At that moment co-accused Gulabi had also fired from his rifle. I did not sustain injury in the incident but my brother received injuries."
36. 'P.W.1/Complainant in examination in chief has falsified the above version of P.W.2. Jumo while deposing as under:-- 'Accused Gulabi and Ghulam Hussain were armed with dandas and accused Asghar was armed with hatchet."
37. 'P.W.2. Jumo, brother of complainant and deceased Ranjho made improvement with sole intention to show that he was present in the house and saw the incident while deposing in examination in chief as under:-- and it was about 12-30 of the night we woke up on the screams and saw four persons bragged in our house."
38. 'P. W.2 Jumo in the examination-inchief has deposed as under:-- they were identified as Haroon who was armed with gun and three unknown accused were also with him amongst them one was holding rifle and rest were armed with lathis."
39. ' P.W.3. Allah Rakhio whose evidence has already been produced above has neither shown that complainant i.e, his son Kirir awakened on fire and cries nor about the arrival of P.W.2. Jumo and Rahimdad.
40. ' P.W.9. Muhammad Yaqoob, the Investigating Officer in his examination in chief has deposed as under:-- " on checking one fire empty bullet was lying in the chamber of rifle while three live bullets were also produced by accused along with 7 mm rifle. The same were sealed at the spot." ' on the same day (5-12-1999) accused Ghulam Nabi alias Gulabi voluntarily prepared to produce the rifle and three live bullets allegedly to have been used by him in the commission of offence."
41. ' P.W.2. Jumo in cross-examination denied the suggestion about the delay in recording his statement under section 161, Cr.P.C.
42. ' P.W.9. Muhammad Yaqoob, the Investigating Officer in his examination in chief has admitted and falsified the above denial of P.W.2. Jumo and deposed that on 2-11-1999 he had recorded the statements under section 161, Cr.P.C. Of P.Ws. Jumo, Rahimdad and Allah Rakhio.
43. ' The I.O. Was confronted with the statement of P.W. Jumo and Allah Rakhio examined by him under section 161, Cr. P.C . Who made certain material contradictions, improvements and exaggerations in their evidence in Court.
44. 'The I.O. In cross-examination was confronted with the statement of P.W.2. Jumo. In reply he deposed as under:- " 161 Cr.P.C. Statement was read over to P.W. Jumo."
45. " It is correct to suggest that said P.W. Did not disclose the description of suspected culprits in his 161, Cr.P.C. Statement."
46. " He has also found danda injuries sustained by deceased."
47. ' Apart from the above infirmities, discrepancies, contradictions and improvements made by the above said witnesses in their respective evidence, however, the case of prosecution is that Haroon was annoyed with complainant party because they had got marriage of Mst. Bhanul with Abdul Aziz. It has come in the evidence that at the time of incident said Abdul Aziz was present in the house and was sleeping in the room where the complainant and P.W. Allah Rakhio were sleeping.
48. P.W.3. Allah Rakhio, the father of deceased Rakhio, Jumo and complainant Kirir, in cross- examination has confirmed the availability of Abdul Aziz. The above said motive shrouded with mystery in as much as when said Abdul Aziz was available, the question arises in the mind of prudence, as to why they had killed Ranjho and why not Abdul Aziz who had in fact married with Mst. Bhanul, the bone of contention.
49. While considering the contradictions and discrepancies as enumerated above, we found that more discrepancies are also spelled out from perusal of the F.I.R. Strictly such contradictions were not brought out in the evidence of complainant/ P.W.1. Kirir in proper method to this precluded from looking into the contents of the documents which forms part of the record.
50. ' In the F.I.R., it has been mentioned un-equivocal terms that at 12-30 a.m., on a gun fire deceased Ranjho cried and as a result, the complainant and his father awakened and seen accused Haroon armed with gun and three unknown persons with hatchets and lathis. However, it is also stated in the F.I.R, that unknown persons were found inflicting hatchet injuries to Ranjho. No where in the F.I.R, it has been stated that on reaching the wardat, the accused inquired about Mst. Bhanul or Abdul Aziz that they challenged the complainant party not to interfere and the complainant party admitted to grapple with accused.
51. ' The Medical Officer, who conducted the post-mortem of deceased Ranjho has not detected any injury of hatchet or blunt weapon so also die rifle injury as deposed by P.W.2. Jumo in his examination in chief that at that moment co- accused Gulabi had also fired from his rifle. He did not sustain injury in the incident but his brother had received the injuries. However, the M.O. Noted only one injury on the body of Ranjho caused by fire-arm. As per case of the prosecution, the statements of witnesses P.W. Jumo and Allah Rakhio were recprded after a considerable delay. The incident had occurred on 19-8-1999 whereas their statements under section 161 were recorded oh 2-11-1999 after the delay of about two and half months which has not been explained.
52. ' In order to consider the contentions raised by learned counsel for appellant and leamed Assistant A.-G., we have minutely perused the case-law relied upon by both the learned counsel.
53. ' In the case of Akhtar Ali (Supra), the Honourable Supreme Court while dealing the point of improvement made in the evidence by P.Ws, has observed as under:- "It is also settled maxim when a witness improves his version to strengthen the prosecution case, his improved statement subsequently made cannot be relied upon as the witness has improved his statement dishonestly, therefore, his credibility becomes doubtful on the well known principle of criminal jurisprudence that improvements once found deliberate and dishonest cast serious doubt on the veracity of such witness.'See Hadi Bakhsh's case PLD 1963 Kar.
54. 805."'
55. 'In the case of Muhammad Rahim etc.1 (Supra), the Honourable Supreme Court while deciding the effect of belated delay in recording the statements of prosecution witnesses towards their credibility, has observed as under:- "It is pertinent to mention here that statements of witnesses were not recorded promptly which were recorded after a considerable delay and the witnesses had failed to explain delay and this fact was considered by the leamed High Court in its true perspective and found that their statements were not trustworthy as their statements created doubt in their veracity as the law laid down by this Court in Syed Saeed Muhammad Shah's case (1993 SCM R 550)."
56. ' The benefit of doubt which has not been extended to the appellant, on this point learned counsel for appellant has relied on the case of Ahmad Yar and others (Supra), in which the Honourable Apex Court, has observed as under:- "No sufficient light was even available at the time of occurrence to identify the accused particularly to show that the fatal shot was fired by him. Accused was acquitted on benefit of doubt in circumstances."
57. ' In the case of Sheral alias Sher Muhammad (Supra), the Honourable Supreme Court while deciding the point of enmity between the parties, has held as under:-- "It is contended that enmity between the parties admittedly existed, and that the prosecution story is highly improbable, in that, five persons variously armed had come to the spot but only one shot was fired at Rasool Bakhsh deceased and no harm was done to other inmates of . The house, particularly Ghulain Akbar, who was also one the accused in the murder case of Bashir Ahmed, uncle of the appellant. It is further maintained that the eye witnesses having been disbelieved qua majority of the accused, could not have been relied upon against the appellant in the absence of any material corroboration coming from some independent source."
58. ' In the case of Sarfraz alias Sappi and 2 others (Supra), the Honourable Supreme Court while dealing the point of related/interested witnesses and enmity between the parties as contended by leamed counsel for appellant in the case in hand, has observed as under:- "Leave to appeal was granted to consider the contention that witnesses produced by prosecution were related to the deceased and independent witness was not pfoduced by the prosecution in support of its case; that Courts below , while discarding the testimony of prosecution witnesses acquitted two co-accused and as such, without sufficient corroboration which was not available on record there was no justification with the Courts below to register conviction against the accused persons and that enmity between the parties existed and that being so, prosecution was required to have produced evidence of unimpeachable integrity to corroborate the eye-witnesses account. "
59. ' The case laws relied upon by learned counsel for the appellant is applicable to this case whereas the case-law cited by learned Assistant A.-G. Are distinguishable to the facts and circumstances of the case in hand.
60. The Superior Courts have constantly held that evidence on capital charge must come from un- impeachable sources. The evidence of interested and inimical witnesses must be corroborated by independent reliable inspiring confidence.. The improvements and exaggerations made by the witnesses in their evidence, made the whole case doubtful and the witnesses have lost their credibility and proved to be untrustworthy, inspiring no confidence and on the basis of their evidence, the conviction not be sustained.
61. ' It has been observed that on the basis of same evidence, the trial Court has given the benefit of doubt to co-accused while in the case of present appellant, he was not given such treatment and was convicted as stated above.
62. ' In view of the above discussions, we came to the conclusion that prosecution has not been able to establish the charge against the appellant. Resultantly, the conviction recorded by learned trial Court is set aside and the appellant is acquitted from the charge and shall be released forthwith if not required in any case.
63. ' The reference made by the learned trial Court is accordingly answered in negative.