' MUHAMMAD ANWAR BHAUR, J.---The appellant, namely, Muhammad Mumtaz son of Allah Bakhsh along with Muhammad Sultan son of Lal Khan was tried by the learned Additional Sessions Judge, Bhalwal, District Sargodha, for committing murder of Muhammad Riaz deceased and murderous assault on Nisar Ahmad son of Dost Muhammad, in case F.I.R. No,148, dated 13-4-2003, registered with Police Station Bhalwal, District Sargodha for offences under sections 302, 324/34, P.P.C. The learned trial Judge by virtue of his judgment dated 30-9-2004 found the appellant guilty of the murder charge, convicted him under section 302(b), P.P.C. And sentenced him to death. Since Nisar Ahmad, injured P.W. Did not appear in Court, therefore, there was no conviction as regards murderous assault. The said learned Judge by giving benefit of doubt to Muhammad Sultan co- accused acquitted him of the charge.
2. The appellant by filing Criminal Appeal No,70/J of 2005 has called in question the conviction and sentence awarded to him through the impugned judgment, whereas the learned Additional Sessions Judge has sent Murder Reference No,845 of 2004 seeking confirmation or otherwise of the death sentence awarded to the appellant. We propose to dispose of both these matters together through this single judgment.
3. Occurrence in the instant case took place on 13-4-2003 at 10-00 a.m., within the revenue estate of Chak No,17/Shamali, situate at a distance of six miles from Police Station Bhalwal, District Sargodha. Shadi Khan (P.W.6), father of Muhammad Riaz deceased, reported the matter at the Police Station to Riaz Shahid, S.I., who as per his dictation drew up F.I.R. (Exh.PK) on the same day at 11-20 a.m. Without any addition or alteration on his part.
4. Succinctly the story of the prosecution as it unfolded in the F.I.R. (Exh.PE) by Shadi Khan- complainant (P.W.6) is that he is an agriculturist by profession; his son Muhammad Riaz is a Chowkidar in a Boys Primary School in Chak No,4/Janubi and being a married man is residing in Chak. No,17/Shamali; on the fateful day, he along with his son Muhammad Riaz and Liaqat Ali son of Muhammad Khalil, was coming back from the house of his other son Muhammad Shahzad in Chak No,17/Shamali after mud plastering the house of Muhammad Riaz on a Rickshaw, which was driven by Muhammad Riaz; from the way, a passenger, namely, Nisar Ahmad also boarded the Rickshaw; at about 10-00 a.m., their Rickshaw reached near Dera Allah Bakhsh Hitiar within the area of Chak No,17/Shamali; meanwhile, Muhammad Mumtaz-appellant, armed with rifle and Muhammad Sultan, empty handed, also came on road from Adda of Chak No,17/Shamali; on catching sight of Muhammad Riaz, Muhammad Sultan exhorted a Lalkara to the effect that Muhammad Riaz has come, he be killed, whereupon Muhammad Mumtaz made three successive rifle shots at Muhammad Riaz, which hit below his right armpit and on upper part of the right armpit and on the back in the spinal cord 'region; thereafter Muhammad Mumtaz fired two more shots at Muhammad Shahzad, but luckily he escaped and the shots hit Nisar Ahmad on his left ribs and its upper part; the accused fled from the scene while raising Lalkaras; the complainant along with his companions tried to offer aid to Muhammad Riaz, but he breathed his last at the spot.
' Motive behind the scene, according to the complainant, was that Muhammad Riaz, his son, had taken Rs,10,000 from Muhammad Mumtaz-appellant as a loan and on his refusal to return the said amount, hot words were exchanged between the two and due to this grudge, Muhammad Mumtaz in connivance with Muhammad Sultan has committed the murder of Muhammad Riaz and has also caused injuries to Nisar Ahmad. Resultantly, the instant F.I.R. Was registered.
5. After registration of the case, investigation into the crime commenced and after completion thereof, challan was submitted before the Court against the appellant and his co-accused for their trial in accordance with law. On receipt thereof, the trial Court proceeded to frame a charge against the appellant and his co- accused, to which they pleaded not guilty and claimed to be tried. The prosecution in order to prove its case ventured to produce as many as ten witnesses, namely, Sikandar Hayat, Patwari (P.W.1), Muhammad Subtain, constable (P.W.2), Muhammad Riaz, constable (P.W.3), Iltaf Hussain (P.W.4), Dr.Muhammad Akram, MO (P.W.5), Shadi Khan-complainant (P.W.6), Liaqat Ali (P.W.7), Zawar Hussain, S.-I. (P.W.8), Javed Yousaf, constable (P.W.9) and Abdul Razzaq, MHC (P. W.10).
' Learned Prosecutor closed the case of prosecution by giving up rest of the witnesses and tendering in evidence copies of reports of Chemical Examiner and Serologist as Exhs.PR and PS, respectively.
6. Thereafter, the accused were examined under section 342, Cr.P.C., who denied the allegations brought against them and claimed their absolute innocence in the matter. They while answering the question "why this case against you and why the P.Ws. Have deposed against you?" stated that it was an unwitnessed occurrence and that they have been falsely involved in this case due to suspicion and at the instance of their enemies in the village. They neither adduced evidence in their defence nor opted to make statements on oath under section 340(2), Cr.P.C. The trial ultimately culminated into conviction of the appellant and acquittal of his co-accused, namely, Liaqat Ali, as aforementioned.
7. Learned counsel for the appellant in support of this appeal argued that both the eye-witnesses, namely, Shadi Khan- complainant (P.W.6) and Liaqat Ali (P.W.7) are closely related to the deceased being father and brother-in-law (Sala), respectively and are admittedly not residents of the place where the occurrence took place, as a matter of fact they lived in Bhalwal, which is at a distance of 8/9 kilometres from the place of occurrence and that they have not given any satisfactory explanation for their presence at the spot; that in the F.1.R, the complainant (P.W.6) stated that the deceased died at the spot, whereas according to Dr. Muhammad Akram, MO (P.W.5), who medically examined him and prepared Medico-Legal Report (Exh.PH), he was brought in injured condition and thereafter he died; that both the eyewitnesses in their statements before the police stated that the appellant fired three shots, out of which two hit him on front side and one on the back, whereas on the back side there was an exit wound; that as per prosecution's own evidence, the deceased was working as Chowkidar in a school at Chak No,4/SB, which is at a distance of two kilometres from village Bhalwal, whereas Chak No, 17/Shamali, where the occurrence took place, is at a distance of seven/eight kilometres towards west of the town of Bhalwal, so both the eye-witnesses for showing their presence at the spot have given the reason that they were coming back after mud plastering the house of the deceased situate in Chak No,17/Shamali, whereas the fact is that the deceased has no residence at Chak No, i7/Shamali, as Liaqat Ali (P.W.7) has admitted that he had sold his land in said Chak; that as per Sikandar Hayat, Patwari (P.W.1), who prepared the site plan (Exh.PA), the deceased was at a distance of three karams from the appellant i,e, point Nos.1 and 3, respectively, and as per statement of the doctor (P.W.5) there was blackening around the wounds, which suggests that the deceased was fired at from a close range, whereas in the site plan the distance was more than fifteen feet; that while appearing before the Court, both the eye-witnesses (P.Ws.6 and 7) made dishonest improvements to bring their case in line with the medical evidence and they were duly confronted with their previous statements; that Javed Yousaf, constable (P.W.9), who took the dead body to the mortuary, in his cross-examination stated that the dead body was handed over to him by the Investigating Officer at triC spot and this fact was also mentioned in statement of this witness recorded under section 161, Cr.P.C.; that in the F.I.R. The motive alleged by the complainant was that the deceased took a sum of Rs,10,000 from Muhammad Mumtaz appellant as a loan and on his refusal to return the said amount, an altercation took place between the two, whereas while appearing before the Court he stated that motive behind the occurrence was "Lain Dain" of amount Rs,10,000 due to which exchange of hot - words was made' between the deceased and the appellant two days prior to the occurrence, over which the deceased had given slaps to the appellant. Who threatened the deceased of dire consequences, however, in his cross-examination, the complainant stated that in fact the appellant had taken the aforesaid amount from the deceased with a view to provide service to maternal-cousin of the deceased, namely, Jabbar; that the prosecution claims that the appellant remained absconder, but there was no legal proof of such abscondence on the record, as the occurrence had taken place on 13-4-2003 and the appellant was arrested on 30-6-2003 as per statement of Zawar Hussain, SI (P.W.8) and as per statement of Muhammad Subtain, constable (P.W.2) proclamation was issued against him on 24- 6-2003, therefore, one month's time under the law is required for declaring a person as absconder and the said period did not expire; that the abscondence even if proved cannot be considered a corroborative piece of evidence if the ocular account does not inspire confidence; that recovery of pistol (P1) is of no avail to the prosecution because no empty was taken into possession by the investigating officer from the place of occurrence and there is no report of the Forensic. Science Laboratory; that there is no mark of firearm on the Rickshaw, whereas as per prosecution the deceased was driving the said Rickshaw and no blood was taken into possession, which suggest that both the eye-witnesses were not present at the spot; that most important witness Nisar Ahmad, who suffered injuries during the occurrence, was not produced and was given up by the prosecution.
8. Learned Deputy Prosecutor-General Punjab for the State while opposing this appeal submitted that the ocular account is duly corroborated by the medical evidence; that there is no reason for false implication of the appellant; that the recovery of rifle was effected from the appellant and the non-recovery of empties from the spot is of no consequence because the prosecution case is otherwise proved through cogent and confidence inspiring ocular account.
9. We have heard learned counsel for the appellant as well as learned Deputy Prosecutor-General, Punjab for the State at considerable length and have also gone through the record with their able assistance.
10. In this case, the occurrence took place on 13-4-2003 at 10-00 a.m., in the area of Chak No,17/Shamali and the matter was reported by the complainant (P.W.6) at the Police Station (Bhalwal) to Riaz Shahid, S.-I. On the same day at 11.20 a.m. Distance between the two places was about six miles.
11. Shadi Khan-complainant (P.W.6) and Liaqat Ali (P.W.7) have furnished the ocular account of this case. Shadi Khan-complainant is father of the deceased, whereas Liaqat Ali (P.W.7) is his brother- in-law (Sala). Both the witnesses admittedly are not residents of the place, where this occurrence had taken place. They have given a reason for their presence at the spot. Now it is to be seen whether the reason given by them is probable and the other circumstances support their explanation for being present at the spot. In the F.I.R., the complainant stated that the appellant fired three shots at the deceased, two hit underneath his right armpit and upper part of his right armpit and the third one landed on his back and that the deceased died at the spot. Similar was the standpoint of Liaqat Ali (P.W.7), but the medical evidence shows otherwise. As per Dr. Muhammad Akram, MO (P.W.5), the deceased was brought in the hospital in injured condition and he medically examined him on 13-4-2003 at about 11-00 a.m. And observed following injuries on his person:--
(1) A firearm wound of entry on the lower part of axilla measuring 1 cm x 1 cm with inverted Black edges, about 13 cm from the right nipple.
(2) A firearm wound of entry 1 cm x 1 cm on the upper part of right axilla, measuring 18 cm from the right nipple. The edges were inverted and Blackened.
(3) A firearm wound of exit on the left side of vertebral column, measuring 4 cm x 2-1/2 cm on the back of lower chest, about 24 cm below the base of neck.
(4) blackened swollen area of skin on the anterior aspect of right shoulder, measuring 5 cm x 2 cm.
' According to the doctor, fresh blood was oozing out of all the wounds (injuries Nos.1, 2 and 3) and the injured was in serious condition, but after sometime he died and autopsy on his dead body was also conducted by him.
' Another point to be noted is that as per medico-legal report and the postmortem examination report, there were two entry wounds on the body of the deceased i,e, injuries Nos.1 and 2. whereas there is an exit wound on the back of the deceased, which um been shown as entry wound by the complainant (P.W.6) and Liaqat Ali (P.W.7) in their statements before the police. Therefore, medical evidence is not exactly in line with ocular account and even a doubt has been created about the presence of these two witnesses at the snot.
12. The motive behind the occurrence, according to the F.I.R., was that the deceased took a loan of Rs,10,000 from the appellant and on his refusal to pay the same, he was killed by the appellant, whereas while appearing before the Court, the complainant (P.W.6) stated that there was a t.Ii,.Pute of "Lain Dain" between the deceased and the appellant, but in cross-examination, he stated that in fact the appellant took Rs,10,000 from the deceased on the pretext of providing service to Jabbar, maternal cousin of the deceased. Thus, motive has also not been proved by the prosecution.
13. Insofar as abscondence of the appellant is concerned, we have noticed that the proclamation for appearance of the appellant was issued. By the Court on 24-6-2003 for 27-7-2003 and the appellant was arrested on 30-6-2003, so under section 87, Cr.P.C., if a person against whom non- bailable warrants have been issued does not appear within the period, which is not less than one month, he cannot be legally declared as an absconder before the expiry of the said period. In the present ease, the appellant was arrested on 30.6-2003 i,e, atter about six days of the issuance of the proclamation, as such, contention of the prosecution that the appellant was an absconder cannot legally be accepted. Even otherwise, mere abscondence is not a proof of guilt of any accused person. Abseondenec may be a relevant fact but the same cannot be used for entailing conviction on capital charge alone when the ocular account to not trustworthy and does not get any corroboration from any other source. In this regard reliance can profitably be placed on the cases of Abdul Sattar v. The State (1974 PCr.LJ 208) and Qudratullalt v. Maisam and another (2005 PCr.LJ 1667). In another case reported as Muhammad Farooq and another v.The State (2006 SCM R.
1707), the Hon'ble Supreme Court of Pakistan observed as under:-- "11. As far as Amjad Javed is concerned, his case is still simpler. Although we have disbelieved that P. W.9 was present at the spot at the time of occurrence yet we will like to add that absconsion has never been considered to be a corroborative piece of evidence."
14. Another important point, which has also been noticed by us, is that both the eye-witnesses (P.Ws.6 and 7) while appearing before the Court made improvements in their statements by stating that Mumtaz-appellant made three fires on Riaz, one fire hit near the right shoulder while the two other fires hit below near right armpit, whereas in the F.I.R. (Exh.PK) and statement under section 161, Cr.P.C. (Exh.DB), respectively, they stated that Mumtaz-appellant fired three shots at Muhammad Riaz deceased hitting him below the right armpit, upper part of right armpit and back in the region of spinal cord. They further stated that they took Muhammad Riaz and Nisar in injured condition and they were admitted in the hospital, where their medical examination was conducted.
According to Shadi Khan-complainant (P.W.6), Muhammad Riaz died in the hospital after 8/10 minutes of his arrival, and Liaqat Ali (P.W.7) stated that after 3/4 minutes of his medical examination, he died, whereas in the F.1.R. (Exh.PK) and statement under section 161, Cr.P.C. (Exh.DB), their consistent stand was that Muhammad Riaz succumbed to the injuries at the spot. Both the eye-witnesses were duly confronted with their previous statements under sections 154 and 161, Cr.P.C. Recorded by the police, which were different from those made before the Court. Thus, it appears that both the eye-witnesses made improvements in order to bring the ocular account in line with the medical evidence. In this regard, reliance is placed on the case of Shahbaz Khan Jakhrani v. Lal Beg Jakirani and others (1984 SCM R. 42), wherein the Hon'ble apex Court has held that where the witnesses made improvements in order to bring in accord ocular testimony with the medical evidence causes serious doubts on veracity of their testimony, their evidence is of a doubtful character and the probabilities were that this was an unwitnessed crime.
15. As regards recovery of rifle (P1), taken into possession through memo Exh. PD, it has been observed that the same has no value for the G reason that no empty was secured by the Investigating Officer from the place of occurrence and in a criminal case it is bounden duty of the prosecution to prove its case beyond any shadow of doubt and if there is any doubt, the benefit thereof shall be given to the accused as a matter of right and not as a matter of grace. Reference may advantageously be made to the case of Muhammad Akram v. The State (2009 SCM R 230), wherein it was observed as under:-- "13. , ....It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as a matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCM R 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."
16. Therefore, story of the prosecution is not free from doubt and as such, by giving benefit thereof to the appellant, we accept this appeal, set aside his conviction and sentence and acquit him of the charge. He is directed to be released from custody forthwith, if not required in any other case.
17. Death sentence awarded to the appellant by the learned trial Court is NOT confirmed and Murder Reference is answered in the "negative."