' ABDUR RAHMAN FARUQ PIRZADA, J.--- Appellant Mian Dad has preferred this appeal against the impugned judgment, dated 24-11-2004, passed by learned Judge, Anti-Terrorism Court-II, Sukkur and Larkana Divisions at Sukkur in Special Case No,62 of 2004 and Special Case No,63 of 2004 titled "State v. Mian Dad and others", vide Crime No,34 of 2004 and Crime No,37 of 2004 of Police Station Dubar, District Sukkur, for offences under sections 302, 364, 148, 149, P.P.C., section 7, Anti-Terrorism Act and Section 13(e) of the Arms Ordinance, respectively, thereby convicting appellant Mian Dad Leghari along with seven others for the offence punishable under section 302(b) read with section 149, P.P.C. And sentencing them to suffer imprisonment for life for two times, and also ordered to pay Rs,25,000 as compensation to be paid to the legal heirs of deceased Nawab and Khuda Bux, and in case of default in payment of compensation, all the accused shall suffer S.I. For six months more, convicting them for an offence punishable under section 364 read with section 149, P.P.C.
And sentencing them to suffer R.I. For 10 years and to pay the fine of Rs,100,000, and in case of default in payment of fine all accused shall suffer further R.I. For one year, convicting them for an offence punishable under section 7(a) of A.T.A., 1997 and sentencing them to suffer imprisonment for life for two times and also to pay the fine of Rs,1,00,000, and in case of default in payment of fine they shall suffer further R.I. For one year more, convicting the appellant/accused Mian Dad for an offence punishable under section 13(e) of the Arms Ordinance and sentencing him to suffer R.I. For five years and also to pay the fine of Rs,25,000 and in case of default in payment of fine he shall suffer further R.I. For one year more; all the sentences shall run concurrently; appellant/accused Mian Dad was extended the benefit of section 382-B, Cr.P.C.
2. Brief facts of the case leading to this appeal are that complainant Shah Muhammad lodged the F.I.R., vide Crime No,34 of 2004 at Police Station Dubar on 8-7-2004 at 5-30 p.m. As stated in F.I.R., the complainant party had old murderous dispute with Raees Leghari and others, and such case was pending in the concerned Court; "Raees and others used to send messages to complainant party, time and again, that the complainant party. Should withdraw from the case, or else it would not be good for them. On the date of incident 'Viz. 8-7-2004, the complainant along with his uncle deceased Nawab son of Khameeso, aged about 55 years, maternal cousin deceased Khuda Bux son of Sonan, aged about 35 years, nephew Ali Anwaz son of Younus and maternal cousin Muhammad Ayub son of Chatto Malik, were coming to Dhandhi with their work. At about 3-00 p.m.
When they reached at the road near the lands of village Imam Ali Shah, accused Raees son of Shero with gun, Khero son of Bhongar having hatchet, Shero with gun, Ali Gohar son of Bano, Ghafoor son of Khushhal both armed with kalashnikovs, Sakhi son of Gahno, Ali son of Raees, both with pistols and Miandad'son of unknown with gun, all Leghari by caste, residents of village Doghar, Taluqa Pano Aqil, came there. Accused Raees instigated the other accused to take upon Nawab and others, not to spare them, and to abduct them and murder them, since they were not withdrawing from the case; on such instigation all the accused, by force of weapons, abducted Nawab and Khuda Bux, while telling the complainant party that in case they tried to do anything, the accused would murder them. Thereafter, they took away Nawab and Khuda Bux towards northern side. After some time fire-arm reports were heard from northern side; after some time, the firing stopped. Thereafter, the complainant party went towards northern side, and besides the abandoned houses, they saw that the dead body of Nawab was lying down on the Katcha road having sustained firearm injuries on his right ear and chest, at the distance of about 50 paces away, dead body of Khuda Bux was lying on the road, having sustained fire-arm injuries on his chest, legs and abdomen. Thereafter, the complainant, with the help of above witnesses and other persons, carried the dead bodies of Nawab and Khuda Bux to Taluqa Hospital Rohri, whereafter he went to police station to lodge the F.I.R. It was further stated in the that the above mentioned accused persons, due to said dispute, with common object, being armed with Kalashnikovs, guns, pistols and hatchet, at the instigation of accused Raees, had abducted Nawab and Khuda Bux, with the intention to commit murder, had fired with kalashnikovs, guns and pistols thereby murdering them, and had issued murderous threats to the complainant party.
3. After completion of investigation, the Challan was submitted against all the accused persons the appellant/accused Mian Dad was shown in custody, whereas the remaining accused persons namely Raees, Khameeso, Basheero, Ali Gohar, Ghafoor, Sakhi and Ali were shown as absconders. A separate Challan in Crime No,37 of 2004 under section 13(e) of the Arms Ordinance against appellant/accused Mian. Dad was also submitted. After issuance of N.B.Ws . Against all the absconding accused and completing all the other necessary proceedings under sections 87 and 88, Cr.P.C., the case was ordered to proceed against the absconding accused in absentia. The connected case under section 13(e) of the Arms Ordinance against accused Mian Dad was ordered to be amalgamated with the main case vide crime No,34 of 2004, Police Station Dubar for joint trial as provided under section 21-M of the A.T.A., 1997.
4. The formal charge was framed against accused persons, to which appellant Mian Dad pleaded not guilty and claimed trial. The prosecution, in order to establish its case, examined total seven witnesses viz. P.W.1 Dr. Abdul Aziz, Medical Officer, P.W.2, complainant Shah Muhammad, who produced F.I.R. No,34 of 2004, Police Station Dubar, P.W.3 Muhammad Ayub, P.W.4 Ali Nawaz, P.W.5 S.H.O. Iqbal Ahmad, P.W.6 Sonan, the Mashir of inspection of dead bodies, two inquest reports, clothes, Wardat and recovery of gun, and P.W.7, P.C. Ghulam Muhammad, the Mashir of arrest.
Thereafter, the prosecution side was closed, vide statement of learned S.P.P.
5. S.H.O. Tahir Hussain was examined as a Court witness, who gave testimony regarding the signatures of P.W. S.I.P. Muhammad Anwar Khanzada and his inability to give evidence, and also verified his signature and writing on various Mashirnamas, inquest reports, and Roznamcha entries, besides producing the F.I.R. In Crime No,37 of 2004, Police Station Dubar.
6. The statement of accused was recorded under section 342, Cr.P.C., in which he denied all the allegations made by prosecution against him. He stated that the complainant and P. Ws had deposed against him due to enmity. He produced certified copy of F.I.R., vide Crime No,35 of 2004, Police Station Dubar, under sections 302, 114, and 34, P.P.C. He also denied the recovery of un- licensed gun from his possession, while stating that the same had been foisted upon him by the Investigating Officer at the instance of complainant party.
7. Learned counsel for appellant submitted that there was no ocular evidence in respect of the actual incident of murders of two deceased persons, as per F.I.R. As well as 161, Cr.P.C. Statements of P.Ws./eyewitnesses; however, later on, the complainant and P.Ws/eye-witnesses malafidely made improvements in the case, at the stage of recording their evidence. He argued that the complainant and eye-witnesses, by way of giving contradictory evidence vis-a-vis the F.I.R. And statements under section 161, Cr.P.C. Had rendered their evidence as doubtful. As per evidence, only four accused persons were attributed the role of firing upon deceased persons, however, it was not specifically stated as to which four accused had fired upon the deceased nor it was specifically stated as to which weapons were used for committing the murders of deceased. No independent P.Ws. Or Mashirs were associated with the case, and all the private P.Ws. Are interested and closely related to each other. Learned counsel also argued that the ocular account of the incident was not in consonance with the medical evidence. The unlicensed gun was not recovered fr'om the appellant but the same was foisted upon him by police, being under the influence of the complainant party. The allegedly recovered gun was sent to the Ballistic Expert after the lapse of about 26 days. The appellant had himself gone to Police Station Dubar for registration of F.I.R. No,35 of 2004 in respect of the murder of his son Allah Rakhio, who was killed by the neviews of complainant party, when he was arrested and involved in the present case.
8. On the other hand, learned A.A.-G argued that the prosecution had successfully established its case against accused beyond reasonable doubt. The ocular evidence was reliable and consistent, and the same was corroborated by the medical evidence as well as circumstantial evidence. An unlicensed gun was recovered from the appellant. The Ballistic report as well as Chemical Examiner's report supported the case of prosecution. Learned State Counsel also argued that the accused were responsible for committing a heinous offence, during which two innocent persons lost their lives. The accused had acted with pre-concert, due to clear motive for committing the alleged offence, arising from the previous enmity existing between both the parties.
9. We carefully considered the arguments, advanced by learned counsel for appellant and learned A.A.-G respectively, and also perused the depositions and other material available on record.
10. The ocular evidence comprised of three eye-witnesses viz. Complainant Shah Muhammad and P.Ws Muhammad Ayub and Ali Nawaz. According to F.I.R., eight accused persons had abducted deceased Nawab and Khuda Bux from the place of incident i,e, Katcha road near the lands of village Imam Ali Shah, towards northern side, while threatening the complainant party not to take any action; after some time, the sound of firing was heard from northern side, and subsequently when the complainant party went towards the place of firing, which was situated on the Katcha road adjacent to some abandoned houses, they found the dead bodies of Nawab and Khuda Bux lying at the distance of 50 paces from each other, and having fire-arm injuries on their persons. It is clear from the above mentioned ocular account, as narrated by complainant in the F.I.R., that the incident of murder was not witnessed by any of the eye-witnesses. P.W.3, Muhammad Ayub, as per his 161, Cr.P.C. Statement before the police, had not seen the accused persons committing the murder of Nawab and Khuda Bux; thereby he followed the line as taken by complainant in his F.I.R.
However, during their evidence, the complainant and the said eye-witnesses made a somersault, while stating that the accused persons fired upon the deceased thereby murdering them, within their sight. As per F.I.R., all the accused persons had fired upon the deceased, whereas according to the depositions, only four accused persons fired upon deceased. In such a case of clear contradictions between F.I.R./161, Cr.P.C. Statements and the evidence led in Court, the credibility of eyewitnesses is exposed to doubt, and the same may lead to suggest that they made the major improvements in their statements before the Court, with certain interest and motivation.
11. It is significant to note that allegedly, as per evidence, four accused persons fired upon the deceased; however, neither the names of such accused persons were mentioned, nor it was mentioned as to which weapons were used in the alleged offence. The ambiguity, which is inherent in the depositions of complainant and other eye-witnesses has undermined the evidentiary value of their evidence, since there was no reason or justification for the eye-witnesses to withhold the names of assailants who fired upon deceased, so also their respective weapons, had they actually seen the alleged incident.
12. It is further significant to note that allegedly the accused persons had abducted away the deceased persons with the intention to commit their murders, while issuing threats to complainant party not to take any action. It is understandable that such threats were given by accused to complainant party in order to prevent them from taking any course of action including the act of pursuing the accused. According to Mashirnama of Wardat, the distance between the place of abduction and the place of murders was one furlong. Obviously, the complainant party could not have been in a position to follow the accused up to the distance of one furlong, due to fear for their own lives, since the accused could have easily fired upon them too. Although complainant Shah Muhammad stated that accused had taken away Nawab and Khuda Bux at the distance of about 50/100 paces from them, and P.W.4 Ali Nawaz stated that the accused, after. Abducting the deceased persons, had committed their murders at the distance of 40/50 feet, but the same statements do not inspire confidence; first, these statements with regard to the distance, are falsified by Mashirnama of Wardat, secondly it cannot appeal to any prudent mind that the accused would have abducted the deceased, just up to the distance of 40/50 feet or paces for committing their murders. Had they any intention to commit the alleged offence within the sight of complainant party, then they could have very easily committed their murders at the spot, instead of abducting them away. Conversely, if the accused had actually abducted the deceased, then there was no sense for them to commit their murders at a short distance away from the complainant party, within their full sight.
13. Admittedly, the complainant and all the private prosecution witnesses/Mashirs are closely related to each other; both the deceased were also their close relatives. Deceased Khuda Bux was maternal cousin whereas deceased Ali Nawaz was nephew of complainant. P.W.3, Muhammad Ayub is maternal cousin, whereas P.W.4 Ali Nawaz is nephew of complainant, P.W.6 Sonan is father of deceased Khuda Bux. As per evidence on record, there were 2-3 villages situated near the place of incident. The complainant deposed that village of Chachars was at the distance of 100 paces.
P.W.3 Muhammad Ayub clearly stated that there were 2-3 villages near the place of incident. P.W.6 Sonan, the Mashir of Wardat, stated that his village which was situated at the call's distance from the place of incident, comprised of so many houses. Admittedly, the complainant, and P. Ws Muhammad Ayub, Ali Nawab and Sonan are shown as residents of village Nabi Shah. As per statement of P.W.3 Muhammad Ayub, there were about 30 houses in the said village and the people of different castes used to reside there. However, it is significant that no independent persons from the vicinity/surrounding villages near the place of incident were associated as P.Ws./Mashirs in the case. With the back ground of the major improvements made by complainant and eye-witnesses in their statements, this factor of non-association of independent members with (he case, may assume significance, and may very well suggest the possibility of the case having been manipulated against the accused.
14. While considering the medical evidence, we have noticed that one injury suffered by deceased Nawaz on his chest shows blackening and charring present; which would mean that the said injury was caused by way of placing the weapon very close to his body at the time of firing. The remaining injuries on the persons of deceased Nawab and Khuda Bux could have been caused by fire-arm, from the distance of more than 4 feet. P.W.1 Dr. Abdul Aziz, Medical Officer, opined as under:--- "The injury No,1 has been caused to the deceased Nawab by placing the weapon on the body. The remaining injuries on the body of deceased Nawab might have been caused from the distance of more than 4 feet. The injuries on the body of deceased Khuda Bux might have been caused from the distance of more than 4 feet."
' It may be important to note that the prosecution witnesses/eyewitnesses, while narrating the incident, never mentioned the details of incident and specifically with regard to the above mentioned one fire-arm injury caused to Nawab by anyone of the accused placing his weapon on the body of deceased.
15. The eye-witnesses are even silent with regard to the fact that the dead bodies of Nawab and Khuda Bux were found lying at the distance of about 50 paces from each other. The ocular evidence is absolutely silent, in respect of the fact that apparently both the deceased were killed at different places, situated 50 paces from each other.
16. Having noted the contradictions/improvements made by the. P.Ws/eye-witnesses, as mentioned above, we are of the view that any such statements, which are apparently made by the witnesses in order to strengthen the prosecution case, loose their credibility and evidentiary value.
Respectfully, the reference may be made to the case of Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550, in which the Honourable apex Court observed as follows:-- "27 Statements of the witnesses in the Court in which improvements are made to strengthen the case of the prosecution are not worthy of reliance. It is held in the case of Amir Zaman v. Mehboob and others 1985 SCMR 685 that testimony of witnesses containing material improvements are not believable. Reference can also be made to the cases of Haji Bakhsh v. The State PLD 1963 Kar. 805, Qaim Din and others v. The State 1971 PCr.LJ 229 and Fazla and another v. The State PLD 1960 Lah.373."
' In support of our above view point, the reference may also be made to the cases of Hadi Bakhsh v.
The State PLD 1963 (W.P.) Kar. 805 and Ghulam Hussain and others v. The State 1980 PCr.LJ.
685.
17. In the case of Muhammad Azad v. Ahmed Ali and 2 others PLD 2003 SC 14, the Honourable Supreme Court dismissed the appeal from judgment of acquittal of accused, inter alia, on the grounds that the complainant as well as eye-witnesses had improved the case by exaggerating the matter beyond the contents of the F.I.R. And 'also on the ground that the case of prosecution was further falsified by the version that the complainant party had not disclosed anywhere in their case that the firing was made from a very close range, although the perusal of the medical evidence on the contrary revealed the presence of blackening over the wounds and the clothes of the deceased which factor when taken into consideration in juxtaposition to the above ocular version furnished by the eye-witnesses led to a conclusions that the incident was unseen one.
18. The prosecution did not succeed in producing any reliable circumstantial evidence, in support of the ocular evidence. P.W.6 Sonan acted as Mashir On various occasions, for the, purpose of preparation of Mashirnama of Wardat, inquest reports, clothes of deceased and recovery of gun from appellant. He was picked up by police to act as Mashir on various dates viz. 8-7-2004, 9-7- 2004 and 18-7-2004. It is not understandable is to how and why the same person was picked up by police, time and again, to act as Mashir; for different purposes. On 18-7-2004 i,e, after the lapse of 10 days of the incident, the same Mashir was once again found by police standing at a bus stop and he was taken for the purpose of arrest and recovery of gun. It is noteworthy that the police did not try to procure the 'attendance of any other independent person to act as Mashir, although many other persons were available at the bus stop, where Mashir Sonan was standing, as clearly stated by himself.
19. The alleged recovery of gun from appellant, would also seem to be doubtful, since the same gun was not sealed at the place of recovery. P.W.6, Sonan stated before the learned trial Court as under:- "The gun which was recovered by the Investigating Officer from accused Mian Dad was sealed at the police station."
' Once the recovery of gun is rendered as doubtful, the other connected recovery of empties from the Wardat would be of no help to prosecution.
20. As per record, the gun which was allegedly recovered on 18-7-2004, was sent to Ballistic Expert on 13-8-2004, i,e, after the inordinate delay of 26 days; the prosecution did not come forward to tender any explanation for the said inordinate delay in dispatching the gun and empties for the expert's opinion. This fact would seriously undermine the evidentiary value of the recovered gun and empties. It was laid down by an Honourable Division Bench of Lahore High Court in the case of Ghulam Muhammad and others v. The State 1980 PCr.LJ 685 as under:--- "12. As regards the point of delay in sending the crime empties and the weapons of offence to Ballistic Expert, we are of the opinion that no reliance can be placed on the recoveries and the matching of the empties with gun (P.10) produced by Allah Ditta appellant and pistol (P.7) recovered from Ghulam Hassan appellant. We find that empties (P.9/1-9) were recovered from the spot on 11-2-1975, gun (P.10) was produced by Allah Ditta appellant on 16-2-1975 and pistol (P.7) was got recovered by Ghulam Hassan appellant on 26-2-1975, six days after his arrest on 20-2- 1975. According to Ibrahim F.C. (P.W.2), the parcels of these articles were handed over to him by the Muharrir of the police station on 2-4-1975 and he delivered the same at the Forensic Science Laboratory on 3-4-1975. Thus, there was a delay of more than a month in sending the crime empties and the weapons of offence to the Ballistic Expert, for which there is no explanation forthcoming. Sending of crime empties and the weapons of offence together after a long delay will cast a serious doubt and will be of no legal value. Reliance in this behalf is placed on Allahando v.
The State 1969 SCMR 714, Muhammad Shafi and another v. The State PLD 1968 Lah. 869; Beekho alias Imam Bux and 2 others v. The State 1973 PCr.LJ 896; Bacho and others v. The State PLD 1963 Kar.
891. It also cannot be lost sight that both the recovery witnesses are close relations of the deceased persons. Bahu (P.W.8) is uterine brother of Khaira deceased and Muhammad son of Amir P.W.6 is the brother of Khair's wife and maternal uncle of Manzoor deceased. In view of the above circumstances, we disbelieve the recoveries in this case."
21. We have noticed the same trend in investigation, in respect of the recovery of blood-stained earth and clothes, in that the same were stated to have been secured on 8-7-2004, but they were sent to Chemical Examiner on 20-7-2004.
22. It is an established principle of law that for giving benefit of doubt to accused, it is not necessary that there should be many circumstances creating doubts; even if a single circumstance creates reasonable doubt in a prudent mind about the guilt of the accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right. The Honourable Supreme Court, while enunciating this principle of law, laid a very valuable dictum in the case of Tariq Pervez v. The State 1995 SCMR 1345, which reads as follows:--- "5 The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts.
If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as matter of right."
23. In the case of Gul Muhammad alias Gullo v. The State 2004 YLR (Karachi), 216, it was observed as under:- . It is a well-settled principle of safe administration of criminal justice that an accused has only to show a dent having occurred/created in the evidence/case of the prosecution, and that he is entitled to the benefit of even a single doubt, found in the evidence of the prosecution, and that he has not to show that its case suffers from more than one doubts; so also it is further settled provision of law that the quality of the evidence and not the quantity of the evidence has a bearing on the fate of the case of the prosecution; such is the guideline given by Honourable Supreme Court of Pakistan reported in "Haq Nawaz and others v. The State and others 2000 SCMR 785. So also, in Muhammad Khan and others v. The State 1999 SCMR 1220, Honourable Supreme Court was pleased to direct that conviction of an accused must be based on unimpeachable evidence and certainty of guilt, and any doubt arising in the case of prosecution must be resolved in favour of the accused."
24. Although, we would agree with the contention of learned State Counsel to the extent that a serious offence was committed, in which two innocent persons lost their lives. However, it is imperative to establish as to who were the real culprits. There is no cavil to the proposition that real culprits ought to be brought to book, but at the same time, we cannot lose sight of the circumstances prevailing in our society, when some times in the cases of un-witnessed incidents, innocent persons are implicated, simply on account of some old enmity prevailing between the parties. In the case of Amin Gull v. Rashid Khan and, another 2003 YLR 2666, it was held as under:-- - "14. It is very important to observe that while passing an order of conviction of an accused for murder the Court has not only to be satisfied that the murder has been committed but it must also be satisfied that accused committed the murder. Before recording an order of conviction all the facts and circumstances of the case have to be taken into consideration and the golden principle of criminal dispensation of justice must be borne in mind. There is no cavil with the proposition of law that except in the cases whereby means of a special enactment onus to prove the guilt or otherwise has been placed upon the accused, ordinarily under the general law it is the duty of the prosecution to establish its case independently without any shadow of doubt."
25. In the light of foregoing facts and circumstances, we are of the considered view that the prosecution did not succeed in producing reliable evidence which could establish its case beyond any reasonable doubt. Accordingly, while extending the benefit of doubt to appellant, we hereby allow this appeal, and acquit the appellant; the conviction and sentences recorded through the impugned judgment against appellant/ accused Miandad only are hereby set aside. The appellant be released forthwith, if not required in any other case.