' HASNAT AHMAD KHAN, J.--- Muhammad Nawaz and Habib Ullah alias Pomi, appellants and Muhammad Iqbal, Allah Ditta and Muhammad Nazeer, co-accused, were tried by the learned Judge Anti-Terrorism Court-I, Gujranwala, in the case F.I.R. No,195 of 2002, dated 2-7-2002, registered at the Police Station Alipur Chatha, District Gujranwala, in respect of the offences under sections 302/148/109 and 201, P.P.C. Vide his judgment, dated 28-9-2004, he found the appellant guilty for the murder of Saif Ullah (deceased) and convicted and sentenced them to death under section 302(b), P.P.C. Read with section 7(a) of the Anti-Terrorism Act, 1997, with a direction to pay a sum of Rs,1,00,000, each as compensation to the legal heirs of the deceased, or in default of payment thereof, they (the appellants) were directed to undergo six months' S.I. However, afore- mentioned three co-accused were acquitted of the charge vide the same judgment by way of extending benefit of doubt to them.
2. Aggrieved by the judgment of the learned trial Court, Muhammad Nawaz and Habib Ullah alias Pomi, appellants have challenged their conviction and sentence through Criminal Appeal No,1617 of 2004, whereas Irshadullah-complainant has challenged the same judgment to the extent of acquittal of Muhammad Iqbal, Allah Ditta and Muhammad Nazir vide Criminal Appeal No,465 of 2004, while the trial Court has sent a Reference (Murder Reference No,18/T of 2004) for the confirmation of the death sentence awarded to the appellants. This consolidated judgment will dispose of all the said matters.
3. Briefly, the prosecution's story, as narrated in the F.I.R. (Exh.P.A. /1), lodged by the complainant- Irshad Ullah (P.W.11), is to the effect that, on 2-7-2002 at 7-45 p.m. Saifullah, a sibling of the complainant, was sitting outside the P.C.O., when all of a sudden Habib Ullah alias Pomi, appellant, armed with a .30 bore pistol, Muhammad Nawaz-appellant, armed with a .30 bore pistol, Muhammad Boota, co-accused, armed with a .30 bore pistol, Muhammad Iqbal, co-accused, armed with a repeater gun, Nazir Ahmad, co-accused, armed with a .12 bore gun and Allah Ditta, armed with a pump action, turned up there. On bawling out of Muhammad Iqbal (acquitted co- accused) to kill Saif Ullah in order to avenge murder of their brother, all the accused fired simultaneously at Saif Ullah (deceased) which hit on different parts of his body, who fell down and bled to death on the spot. After that Nazir Ahmad, accused, sprinkled kerosene oil on the body of Saif Ullah (deceased) and set the same ablaze. All the accused allegedly made aerial firing while standing at the place of occurrence.
4. Motive behind the occurrence was stated to be the murder of the accused's brother, which was compromised by Saifullahdeceased and the complainant giving four acres of land by the complainant party.
5. After receiving the information about the murder Nazar Muhammad, Inspector (P. W.13), reached the place of occurrence where the complainant presented before him the written complaint (Exh.P.A.), which was sent to the police station for the registration of formal F.I.R. (Exh.P.A./1). Nazar Muhammad, Inspector himself inspected the place of occurrence, prepared a rough site plan Exh.P.M., an inquiry statement Exh.P.G., an inquest report Exh.P.H. And application for the post- mortem examination Exh.P.N. And sent the dead body to the mortuary for autopsy. He also took into possession certain articles including the crime-empties, from the place of occurrence besides completing other formalities. On 30-7-2002, the accused, Muhammad Nawaz and Habib Ullah alias Pomi were arrested. On 11-8-2002, said Investigating Officer recovered pistol .30 bore P.4 and blood-stained Chhuri P.5 from Habib Ullah, appellant and took them into possession vide recovery memo. Exh.P.G. He also prepared a complaint under section 13 of the Arms Ordinance, 1965 regarding the possession of illicit arms. He recovered .12 bore gun, P.6, from accused Nawaz vide recovery memo. Exh.P.E. He also recorded the statements of the witnesses and after completion of investigation sent the report under section 173, Cr.P.C. The appellants were indicted and tried on the charge of murder of Saif Ullah (slain). During the trial, the prosecution, in support of its case, produced as many as 13 witnesses.
6. Irshad Ullah-complainant entered into the witness-box as P. W.11 and furnished the ocular account of the occurrence. Atta Ullah, Khalu of the deceased, another eye-witness, entered into the witness-box as P. W.12 and deposed about the occurrence and certain recoveries. Masood Ahmad Bhatti, draftsman appeared as P.W.5, who proved site plan Exhs.P.C. And P.C./1. Abrar Hussain appeared as P.W.9 and proved recoveries. Dr. Muhammad Safdar, who had conducted autopsy on the dead body of Saif Ullah (deceased), appeared as P.W.2, and furnished the detail of injuries, observed by him on the corpse of deceased as under:---
(1) Incised wound 5 c.m. x 2 c.m. Going deep on the left side of chin.
(2) Incised wound 2 c.m. x 1 c.m. x going deep on the front and upper part of neck on the left side of neck 5 c.m. Below the injury No, 1.
(3) Incised wound 3 c.m. x 2 c.m. Going deep on the left side of upper chest. 6 c.m. Below the injury No,2.
(4) Fire-arm entrance wound with inverted margins 2 c.m. x 1 c.m. x going deep on the right side of chest. 3 c.m. Below the right nipple.
(5) Fire-arm entrance wound 1.5 c.m. x 1 c.m. x going deep with inverted margins. 2 c.m. Below the right nipple (right chest).
(6) Incised wound 3 c.m. x 2 c.m. x going deep on the front of abdomen, 6 c.m. Above the umbilicus.
(7) Incised wound 7 c.m. x 3 c.m. In front of abdomen small intestine, was coming out from the abdomen.
(8) A fire-arm exit wound 1.5 c.m. x 2 c.m. On the back of right elbow joint.
(9) A fire-arm entrance wound 1 c.m. x 1 c.m. On the back of right upper arm near elbow joint.
(10) A fire-arm entrance wound 1 c.m. x 1 c.m. x going deep with inverted margins on the right side of the abdomen, 10 c.m. Right to the midline.
' According to his opinion, all the injuries were ante-mortem in nature. Injuries Nos.7, 4 and 5 were fatal, death occurred due to shock. Time between injuries and death was immediate and between death and postmortem examination was 12 to 14 hours.
' Nazar Muhammad, Inspector/Investigating Officer, who had conducted the investigation in the witness-box as P.W.13 and provided the detail of the investigation, conducted by him. Ameer Hussain, A.S.-I., who had drafted the formal F.I.R. Exh.P.A./1 on the basis of complaint Exh.P.A., entered the witness-box as P.W.3.
7. After tendering in evidence the report of Chemical Examiner (Exh.P.Q./1), the report of Serologist (Exh.P.Q.) and the report of Forensic Science Laboratory (Exh.P.R.), the learned D.D.A. Opted to close the prosecution's evidence, whereafter, the appellants made their statements under section 342, Cr.P.C., wherein they denied the prosecution's version and gave their own version. While responding to question No,13, Habib Ullah-appellant stated as under:--- "I have been falsely involved in this case due to political enmity. The P.Ws. Were not present at the spot and they were inimical to me and are inter se related. I along with my co-accused have no motive to kill the deceased as compromise between previous murder has been effected. The deceased was notorious and dare devil man. He has got large of enmity with other people. It was a blind murder committed in the darkness and I along with my co-accused have been falsely involved to fill in the blank of untraceable murder. I am innocent."
' Muhammad Nawaz-appellant, adopted above statement of his co-accused Habib Ullah. He, however, produced in his defence documents Exh. D C . And Exh. D D.
8. The appellants, however, denied to appear as their own witnesses under section 340(2), Cr.P.C.
9. In support of this appeal learned counsel for the appellants has contended that it was a night time occurrence; that the F.I.R., was lodged by the complainant after due consultations and deliberations; that the complaint which culminated into the F.I.R. Was recorded at the spot, which shows that before recording the F.I.R. Preliminary investigation was conducted by Nazar Muhammad, S.-I. (P.W.13); that said Nazar Muhammad S.-I. Had reached the place of occurrence on receipt of information regarding the occurrence through undisclosed sources; that, admittedly, the deceased was a vagabond and a desperate criminal, which is evident from the perusal of the copies of the F.I.Rs,, which were duly produced and exhibited by the accused in their defence; that the appellants had no motive to kill Saif Ullah (deceased) because the complainant and Saifullah (deceased) who were involved in the murder case of the appellant's brother had arrived at a compromise after alienating four acres of land in appellants' favour; that the said matter was compromised two years before the occurrence and during the said period no untoward incident took place between the parties; that the deceased being desperate and hardened criminal, had so many other enemies, therefore, the possibility of his murder at the hands of other people cannot be ruled out; that even otherwise motive is a double-edged sword which cuts both ways; that the medical evidence outrightly contradicted the ocular version inasmuch as according to the contents of the F.I.R., which was recorded on the written application of Irshad Ullah-complainant, the deceased was done to death by causing fire-arm injuries which were attributed to all the accused including the appellants but according to the medical evidence, Saif Ullah (deceased) had received as many as five sharp-edged injuries; that according to the F.I.R. Neither any of the accused was armed with sharp-edged weapon nor was any sharp-edged injury attributed to any of the accused; that on the basis of same evidence, which has been disbelieved qua three co- accused, the appellants have been ordered to be sent to gallows; that the learned trial Court in paragraph 39 of the impugned judgment itself concluded that both the parties were not giving true account of the occurrence but even after giving the said finding, ironically enough, the appellants have been convicted and sentenced to death; that the said finding of the learned trial Court shows that the learned trial Court had entertained some doubts regarding the truthfulness of the prosecution's version but the benefit of doubt was withheld from the appellants, which is against all norms of administration of criminal justice, which requires that benefit of doubt, howsoever slight it may be, has to go to the accused and not to the prosecution; that both the eye- witnesses made improvements to bring their ocular account in line with the medical evidence; that the claim of the complainant that at the time of lodging of F.I.R. He was perplexed, is denied by the fact that the F.I.R. Was lodged on his written application, which he prepared while sitting in a nearby house; that even after lodging of the F.I.R. The complainant did not make any supplementary statement to clarify the fact that Habib Ullahappellant, had caused knife/Chhuri blows to Saif Ullah (deceased); that both the eye-witnesses failed to stand the test of cross-examination successfully and made contradictory statements; that according to the contents of the F.I.R., six accused caused fire-arm injuries to the deceased but according to the medical evidence he received only four bullet wounds, which fact also contradicts the prosecution's version; that both the eye- witnesses are interested witnesses, therefore, their testimony cannot be relied upon; that the complainant is not a natural witness; that though the allegation of sprinkling/splashing kerosene oil on the body of Saif Ullah (deceased) was attributed by the eye-witnesses to Naseer and Nazir, accused, specifically, yet the learned trial Court held that the same was sprinkled by Habib Ullah and Muhammad Nawazappellants, but there is no basis for giving such a finding and that insofar as positive report of Forensic Science Laboratory is concerned, the same is useless for the prosecution because admittedly the empties were sent to the said Laboratory with the delay of twenty days after the occurrence. In this regard learned counsel has placed reliance on the cases of Muhammad Naeem v. The State 1998 PCr.LJ 292, Muhammad Sharif Khan v. The State 1991 PCr.LJ 1992, Attaullah and others v. The State PLD 1990 Pesh. 10, Ahmad and 4 others v. The State 1988 PCr.LJ 1133, Muhammad Javed and 2 others v. The State PLD 1988 Lah. 671, Mst. Masood Begum v.
Muhammad Maroof and 2 others 1998 PCr.LJ 56 and 1947 Cr.LJ 730. Lastly, learned counsel for the appellants has contended that in the night time the occurrence could not be witnessed from a distance of 70 feet and that the prosecution has failed miserably to prove its case beyond the shadow of doubt, therefore, the appellants are entitled to a clean acquittal.
10. Conversely, Kh. Sultan Ahmad, Advocate, learned counsel for the complainant, has supported the impugned judgment submitting that Saif Ullah (deceased) was stabbed and gunned down in a thickly populated area during the day time; that the occurrence was reported to the police with a reasonable promptitude; that the co-accused of the appellants have been acquitted by the learned trial Court on the grounds which are not sustainable in law, therefore, the appellants cannot get benefit out of the said circumstance; that the learned trial Court committed illegality while acquitting the said co-accused on the basis of opinion of the police though the witnesses of alibi were never produced before the learned trial Court; that though the parties had compromised over the issue of murder of appellant's brother yet the appellants nourished a grudge against the deceased and finding an opportunity they bumped him off in a very cruel and brutal manner; that the complainant had no reason to substitute the killers of his real brother and even otherwise substitution is a real phenomenon; that even if the ocular account of complainant is excluded from the consideration on the ground that he failed to attribute sharp-edged injuries to Habib Ullah, accused, while lodging the F.I.R., but there is no occasion for disbelieving the testimony of Atta Ullah (P.W.12), who has given the full detail of the occurrence while making his statement under section 161, Cr.P.C., which is in line with his statement made during the trial; that P.W.12 had got no enmity against the appellants, therefore, the conviction can be based on his solitary statement, which is corroborated by medical evidence as well as recovery of weapons of offence coupled with positive report of Forensic Science Laboratory; that as the occurrence took place at the fag end of the day, therefore, possibility of missing to note the sharp-edged injuries by the eye-witnesses in twilight, from a distance of 70 feet is quite natural; that the empties recovered from the place of occurrence were sent to Forensic Science Laboratory before the arrest of the accused, therefore, positive report of Forensic Science Laboratory is of great significance and fully supports the prosecution's version; that none of the prosecution's witnesses, who received and retained the crime-empties and sent the same to Forensic Science Laboratory, was cross-examined by the defence by claiming that the same were tinkered with by the Investigating Officer malafidely; that the ocular version furnished by P.W.12 and supported by motive, medical evidence and recoveries of the fire-arm weapons coupled with positive report of Forensic Science Laboratory, is more than sufficient to sustain the judgment handed down by the learned trial Court and that the appellants are guilty of cold blooded, calculated, brutal, callous and thought out murder of Saif Ullah (deceased), therefore, they are not entitled to any concession even in the matter of sentence.
11. Barrister Salman Safdar, learned Special Prosecutor, has supported the arguments put forth by the learned counsel for the complainant by submitting that both the eye-witnesses are quite natural witnesses; that admittedly the occurrence took place in a thickly populated area, therefore, it cannot be argued or assumed that it was an unwitnessed affair; that in the early days of July sun sets in very late, therefore, it cannot be claimed that the occurrence dated 2nd July, took place in the dark hours of the night; that even otherwise after torching Saif Ullah (deceased) by the appellants sufficient light of flames produced in this process was available to identify his killers; that the deceased was brought down to the grave in a barbaric manner, therefore, the appellants do not deserve any leniency in the matter of sentence.
12. We have given a very patient and ardent hearing to the respective learned counsel for the parties and with a view to know the ropes, we have gone through the entire evidence and other material available on the record with the able assistance of learned counsel for the parties. After doing the said exercise, we have gathered that in this case the unfortunate occurrence took place on 2-7-2002 at 7-45 p.m. In the vicinity of village Manchar Chattha , which is located at a distance of six miles from the police station where the F.I.R. Was registered in this case. We have further gathered that according to the complainant, who is brother of Saifullah-deceased of this case, he (Saifullali) was attacked by six gun-toting people, including the appellants, while he was sitting in front of his Public Call Office (P.C.O.). While making the application (Exh.P.A.) to the police, the complainant claimed that all the assailants opened firing with their respective fire-arm weapons and wounded Saifullah-deceased, who after falling on the ground, bled to death, whereafter, Nazir Ahmed, acquitted co-accused, sprinkled kerosene oil on Saifullah's body, whereupon, Muhammad Iqbal acquitted co-accused torched the same with a match. The occurrence, according to the complainant, was seen by him and the other eye-witnesses from behind a plank of the door. A perusal of the reveals that the legal machinery was put into motion on the basis of a written application which was handed over to Nazar Muhammad, S.-I. Who after receipt of an information through his own resources, had already reached at the spot. A perusal of the record further reveals that in order to prove its case, the prosecution relied upon the ocular testimony comprising statements of Irshadullah (P.W.11) and Ataullah (P.W.12), motivating factor behind the alleged crime, medical evidence and the recoveries of weapons of offence, crime-empties, coupled with the positive report of Forensic Science Laboratory.
13. At the outset, it has been gathered by us that on the basis of same evidence, the learned trial Court proceeded to acquit Muhammad Iqbal, Allah Ditta and Muhammad Nazir-co-accused. We have further ,observed that at the time of conclusion of the trial, the learned trial Court came to the conclusion that both the parties were not giving true account of the occurrence. In order to further clarify this point, we would like to reproduce a portion of paragraph No,39 of the impugned judgment, which reads as under:--- "It is a settled law that when both the parties are not giving true account of the occurrence, it is open for the Court to form its own opinion keeping in consideration, evidence and facts and circumstances of the case."
' The said two facts are sufficiently enough to caution us to go through the ocular evidence carefully in order to come to a conclusion while deciding the fate of the appellants.
14. While analyzing and appreciating the ocular evidence, we find that according to the F.I.R., the occurrence was witnessed by Irshadullah-complainant besides Ataullah (P.W.12) and Azhar Zaman, who has been given up by the prosecution as being won-over. Admittedly, complainant is real brother of Saifullah-deceased whereas Ataullah (P. W.12) is maternal-uncle (Khaloo) of the said deceased. According to the complainant, there was animosity between the parties over the murder of appellant's brother. He further claimed that Saifullah deceased and he himself (complainant) were involved in the said case as murderers of brother of the appellants. However, they were acquitted two years before the occurrence on the basis of a compromise, which was effected after alienating four acres of land but despite the said compromise the accused party had a rancour against the complainant party due to said murder.
15. The other salient feature of the case is that at the time of lodging the F.I.R., the complainant claimed that before setting dead body of Saifullah-deceased on fire, he was shot dead by all the accused nominated in the F.I.R., who had made straight firing on him with their respective fire-arm weapons. A perusal of the F.I.R. Reveals that the complainant nowhere alleged that any of the assailants was armed with any sharp-edged weapon. However, the medical evidence straightaway contradicted the contents of the F.I.R., inasmuch as Dr. Muhammad Sarwar Sheikh, while appearing as P.W.2 and giving the detail of injuries received by Saifullah-deceased, stated that he had received as many as five sharp-edged injuries besides four fire-arm injuries. So the medical evidence contradicts the ocular testimony on two-fold grounds; firstly, the sharp-edged injuries were not mentioned while lodging the F.I.R.; secondly, all the six accused were attributed the role of causing the fire-arm injuries to the deceased, who, according to the said doctor, received only four fire-arm injuries. It appears that the alleged eye-witnesses had not seen the occurrence, therefore, the sharp-edged injuries received by the deceased, could not be explained at the time of lodging the F.I.R. However, after receipt of post-mortem report, the prosecution realized the said blunder and glaring contradiction. Consequently, while appearing in the witness-box the complainant took a somersault and narrated almost a new story before the learned trial Court.
During his examination-in-chief, he attributed as specific fire-arm injury to Habibullah, appellant.
Besides, the said fire-arm injury, he claimed that Habibullah, appellant, had given 5/6 stab wounds to Saifullah-deceased. The said improvements made by the complainant makes his testimony hazy and doubtful. Further, according to his own showing, he appears to be a chance-witness, inasmuch as, during his cross-examination (at page 47 of the paper book), he conceded that he did not own any house in the area of place of occurrence. He further admitted that he had not disclosed to the Investigating Officer the purpose of his presence at the house of Ataullah (P.W.12) at the time of occurrence. The claim made in the F.I.R. That the deceased was gunned down in front of his Public Call Office (P.C.O.) was also contradicted by the complainant himself, who during his cross-examination stated as under:--- "It is correct that P.C.O. Of deceased Saifullah was on the street on the third shop and he was not present at his P.C.O. At the time of occurrence."
' He further admitted that the deceased was sitting in front of the shop of Naveed. It would be relevant to point out here that in the site plan, no P.C.O. Has been shown. In order to remove the said discrepancy, the complainant claimed that at the time of preparation of site plan, he was not there, that was why the existence of the P.C:O. Could not be mentioned therein, he said.
16. Besides the said reason, ocular testimony of the complainant is not believable due to the following reasons:---
(i) The F.I.R. Was not lodged at the police station, rather, it was recorded on the basis of written statement, which was received by the Investigating Officer from the complainant right at the spot.
During his statement, the complainant admitted that the police reached at the spot after 1-1/4 hours of the occurrence. During this period, admittedly, the complainant did not make any effort to report the matter to the police. The Investigating Officer, admittedly reached at the place of occurrence after receiving the information from his own resources. In cases where the F.I.R. Is written at the spot, it is normally presumed that the same was recorded after preliminary investigations! Enquiries.
(ii) Admittedly, the occurrence took place at 7-45 p.m. It is not the case of the prosecution that any light was available around the place of occurrence. The prosecution claims that in the month of July --- on the day of occurrence, sufficient daylight was available for witnessing the occurrence.
In order to probe the said aspect of the case, we have examined the calendar, maintained to show the timings of sun rising and sun setting. The said calendar reveals that on 2nd of July, sun sets in at 7-14 p.m. i.e. Half an hour before the time of occurrence in this case, which shows that even if it was not a pitch-dark, the happening took place in the twilight, to say, the least. This fact gets more importance for considering the prosecution's allegation, according to which, the witnesses had seen the occurrence from a distance of 70 feet and that too from behind the planks of a door.
(iii) P.W.11 during his cross-examination, candidly conceded that the deceased was involved in number of criminal cases. The said fact was further proved by the defence by producing number of F.I.Rs, recorded against Saifullah-deceased. The conceding statement of the complainant and the said F.I.Rs, show that Saifullah-deceased had other enemies also.
(iv) That, admittedly, the complainant did not make any supplementary statement to explain the conflict between the ocular testimony and the medical evidence. However, the statements of eye- witnesses recorded under section 161, Cr.P.C. Contained the allegation of causing sharp-edged injuries to the deceased, as well. It appears that in order to synchronize the matter in this regard and to remove the said anomaly, the complainant claimed that before or at the time of lodging of the F.I.R., the eye-witnesses were neither available at the spot nor did they meet him (complainant). In answer to question, during the cross-examination, the complainant stated as under:--- "It was written after 30/45 minutes of the occurrence. I do not know that where the P.Ws. Namely Atta Ullah and Azhar Zaman had gone after seeing the occurrence. They met me at 10/10-30 p.m., whereas the occurrence took place at 7-45 p.m. I do not know that whether the aforesaid P.Ws.
Were present or not at the spot at the time of arrival of the police."
' In answer to another question, he further stated as under:--- "I do not know that whether the aforesaid P.Ws. Were present at the spot at the time of presentation of the application to the police. I had not seen them there. They had not made any deposition before the police in my presence. I remained present on the place of the occurrence throughout after presenting the application to the police, till 12-30 in the midnight. Thanedar remained present at the spot till 10-30 p.m. I also remained present there."
' He further claimed that no conversation had taken place between him and the eye-witnesses regarding the registration of the case. In answer to yet another question, the complainant claimed that the eye-witnesses had not informed the police anything about the occurrence in his presence at the time of spot inspection by the police. The said claim of the complainant appears to be economical with truth.
(v) Insofar as the inconsistency between the ocular version and the medical evidence is concerned, the complainant during his cross-examination claimed that he had failed to mention the blows of Chhuri and role of Habibullah alias Pomi, accused, in the complaint, inadvertently, whereas in reply to another question, he claimed that he was not nervous at the time of preparation of the complaint (Exh.P.A.). One would take the said version of the complainant with a pinch of salt.
(vi) Admittedly, the place of occurrence is surrounded by a number of shops. The complainant during his cross-examination conceded that at the time of occurrence, the shopkeepers of surrounding shops wee present on their shops. He further conceded that no shopkeeper was produced before the Investigating Officer by him (the complainant) in support of prosecution's case. He went on to concede that about 100/150 persons witnessed the occurrence. But besides the complainant, who is real brother of the deceased and Ata Ullah (P.W.12), who is maternal-uncle (Khaloo) of the deceased, no independent witness came forward to corroborate the prosecution's case. This fact also makes the prosecution's case doubtful.
17. For the said reasons, we conclude that the complainant did not witness the occurrence at all.
That is why during the course of arguments, learned counsel appearing on behalf of the complainant stated that even if the evidence furnished by the complainant is excluded from the consideration, the case stands proved on the basis of ocular testimony of Ata Ullah (P.W.12), but considering the glaring and irreconcilable contradiction between the ocular testimony and the medical evidence, we feel hesitant to believe that Ata Ullah (P.W.12) had made statement under section 161, Cr.P.C. Before the conduct of post-mortem report. It appears that the police recorded the statements of the eye-witnesses after receipt of post-mortem report. This finding of ours gets support from the fact that even the Investigating Officer, who recorded the complaint (Exh.P.A.), was not aware of receipt of sharp-edged injuries by Saifullah-deceased. During his cross- examination, he admitted that he had mentioned in the inquest report that the deceased was injured by firearms. He further conceded that it had not come into his knowledge, during the preparation of the inquest report, that the deceased had received Chhuri blows. Admittedly, Ataullah is a close relative of the deceased as well as the complainant. It is also an admitted fact that the parties had a background of enmity over the murder of appellants' real brother at the hands of complainant and Saifullah-deceased. Therefore, for maintaining the sentence on the capital charge, his evidence requires a minute scrutiny. It would be relevant to point out here that Azhar Zaman, another eye-witness, who, admittedly is maternal-cousin (Mamoonzad) of the complainant was dropped by the prosecution as a won-over witness. From the said fact we can infer that he was not inclined to support the prosecution's version, considering the same to be false. It is also a fact that admittedly the place of occurrence was located in a populated area but no independent witness came forward to support the prosecution's case. After disbelieving both the eye-witnesses, we cannot maintain the conviction only on the assumption that at least it was not an unseen occurrence and same was witnessed by some witnesses other than the alleged eye-witnesses produced by the prosecution.
18. Now reverting again to the testimony of P.W.12, strangely enough, he claims that he did not know where the complainant was at the time of recording his statement. He further pretends that after the occurrence he had a conversation with the complainant about the occurrence after four/five days of the incident. He further pretends that he did not know when the complainant got the case registered. In answer to a question, during his cross-examination, he stated as under:--- "After 4/5 days of the occurrence I came to know that the complainant had got registered the case. The complainant remained in my house, till the arrival of the police and thereafter, he went to his house. The complainant did not appear before the police the police in my presence. No deposition of the complainant was recorded by the police in my presence. The complainant had not made any petition before the police for registration of the case in my presence. Police had not visited my house at all."
' In answer to another question, the said witness replied that the complainant did not visit his house (condolence place) for three days.
The said part of the statement of the complainant shows that he tried his level best to withhold certain facts from the Court and did not come forward in a straightaway manner, rather he tried to dilute the effect of glaring contradiction between his statement recorded under section 161, Cr.P.C.
Wherein the sharp-edged injuries were attributed to Habib Ullah, appellant and the contents of the F.I.R. Wherein no such allegation was levelled by the complainant. Besides, the said witness made further improvements to bring his evidence in line with the medical evidence. In short the evidence of P.W.12 is neither believable nor confidence-inspiring.
19. A minute scrutiny of the ocular evidence makes us believe that the occurrence was not witnessed by the witnesses, who have been produced in the witness-box by the prosecution. The independent witnesses, who possibly had seen the occurrence, were not produced by the prosecution, though, the Investigating Officer candidly admitted that Naveed-shopkeeper appeared before him (Investigating Officer) and claimed himself to be an eye-witness of the occurrence. Similarly, according to the Investigating Officer, Ziaullah, Saifullah, Sadiq and Nawaz also appeared before him and claimed themselves to be the eyewitnesses but all the said witnesses have been withheld by the prosecution. It is an established law that benefit of doubt can only be given to the accused and not to the prosecution.
20. For all the above mentioned reasons, we have found that the prosecution failed miserably to prove its case through the ocular evidence. After disbelieving the ocular evidence, only the recoveries of weapons of offence and positive report of Forensic Science Laboratory remain in field.
Admittedly, the crime-empties were dispatched to the Forensic Science Laboratory with the delay of 20 days from the date of occurrence. It is true that the relevant witnesses were not cross- examined by the defence in order to challenge the authenticity and transparency of the process of receiving and sending the said articles to the relevant quarters, nevertheless, the said delay coupled with the conduct of the Investigating Officer, who tried to improve the prosecution's case by recording statements under section 161, Cr.P.C., on receipt of postmortem report in order to bring the ocular testimony in line with the medical evidence, no implicit reliance can be placed on these recoveries of the weapons of offence and the report of Forensic Science Laboratory. Further, the recoveries of crime weapons were effected in violation of provisions of section 103, Cr.P.C., as no witness from the public was joined by the Investigating Officer to witness the said alleged recoveries. Moreover, the Chhuri, which was allegedly recovered from the house of Habib Ullah, appellant, at his instance after 41 days of the occurrence, interestingly enough, was shown to be blood-stained. It is not believable that the accused who was arrested after 28 days of the occurrence would have saved the same intact to present it to the police as a souvenir. This fake recovery also shows the mala fides of the Investigating Officer. Even otherwise, evidentiary value of recoveries of weapons of offence and the report of Forensic Science Laboratory is that of corroborative nature. After disbelieving the ocular testimony in its entirety, we cannot maintain the conviction only on the basis of positive report of Forensic Science Laboratory.
21. For what has been stated above, we have concluded that the prosecution has failed to prove its case beyond any shadow of doubt, rather, the doubts are floating on the surface of the case.
Consequently, the judgment of the learned trial Court is set aside, appeal filed by the appellants is accepted and both the appellants are acquitted of the charge. Death sentence is not confirmed.
Murder Reference is answered in negative.
22. Criminal Appeal No,465 of 2004, which is still at motion stage, has not been pressed by the learned counsel for the complainant, therefore, dismissed accordingly.