' MANZOOR AHMAD MALIK, J.--This judgment shall dispose of Criminal Appeal No,1336/04 (Muhammad Saleem v. The State) and Murder Reference No,618/04 sent by the learned trial Court for confirmation or otherwise of the sentence of death awarded to the appellant as both these matters arise out of the same judgment dated 31-7-2004 passed by the learned Additional Sessions Judge, Okara, whereby, appellant was convicted for the murder of Shahbaz under section 302(b) P.P.C. And sentenced to death with a further direction to pay a compensation of Rs,50,000 as provided under section 544-A Cr.P.C. To the legal heirs of the deceased in default whereof to further undergo S.I. For six month. However, benefit of doubt was extended to Zafar Iqbal, Mst. Tahira Bibi, Mst. Abida Perveen, Mst. Kalsoom and Muhammad Iqbal co-accused by way of acquittal from the charges levelled against them and PSLA No,89/04 filed against their acquittal was dismissed on 27-6-2005.
2. Brief facts of the case, as given by P. W.1 Talib Hussain (complainant) in the Private Complaint (Exh.PE) are that regarding murder of this brother case F.I.R. No,34/2003 under sections 302/ 109/34 P.P.C. Was lodged but being dissatisfied with the tenor of investigation, the instant Private Complaint was filed with the averments that Tahira Bibi (Acquitted co-accused), who was wife of Shahbaz (deceased) developed illicit relation with Muhammad Saleem (appellant). The deceased forbade his said wife which resulted into a quarrel between them and Tahira extended threats of dire consequences to her husband Shahbaz (deceased). According to the complainant on the night between 19th/20th Fabruary, 2003, the complainant was present at his house along with Muhammad Iqbal and Shahbaz, which was adjacent to the house of Shahbaz (deceased), at 92-B Housing Scheme Renala Khurd and were talking about their business. It has been mentioned by the complainant in the private complaint that at about 1-30 a.m. The complainant heard a voice of fire from the house of his brother Shahbaz and rushed towards the said house along with P.W. And saw in the light of the tube that Muhammad Saleem (appellant) and Zafar Iqbal (acquitted co- accused) armed with pistols and Tahira Bibi (acquitted co-accused) were standing. It has further been mentioned by the complainant that the said Tahira Bibi raised a Lalkara that Shahbaz (deceased) was still alive, upon which, Muhammad Saleem (appellant) made a fire with his pistol which hit on the back of Shahbaz (deceased). The complainant also stated in that when he tried to intervene, the accused raised their firearms towards the complainant and the P. Ws. Due to which they could not go near. As per Private Complaint, the accused then decamped from the spot which Shahbaz (deceased) succumbed to the said injury. As per complaint, Sharif and Abbas told the complainant on the next date of the occurrence that Tahira, Saleem, Zafar Iqbal, Muhammad Iqbal, Abida and Kalsoom Bibi hatched conspiracy to kill Shahbaz, they could not inform the complainant and Shahbaz as house of the deceased was locked while complainant was not present at his house. It was stated in the complaint that Kalsoom Bibi, Abida Bibi and Tahira were friends and of bad character while Zafar Iqbal used a licensed pistol of Iqbal during this occurrence which was provided to Zafar Iqbal by Iqbal.
3. The appellant, along with the acquitted co-accused were summoned to face trial in the Private Complaint case, copies were distributed as required under section 265-C of the Code of Criminal Procedure, charge was framed to which accused pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution produced as many as 8 witnesses during the trial.
Statements of Muhammad Afzal, Muhammad Akram, Muhammad Boota and Muhammad Saeed were recorded as C.W.1, C.W.2, C.W.3 and C.W.4, respectively. The appellant and the acquitted co- accused were examined under section 342 Cr.P.C. They did not opt to depose on Oath as required under section 340(2) Cr.P.C. While Aslam Pervaiz was produced as D.W.1.
5. Learned counsel for the appellant contents that in this case in all six persons, including the appellant, were arrayed as accused amongst whom five co-accused of the appellant, namely, Zafar Iqbal, Mst. Tahira Bibi, Mst. Abida Perveen, Mst. Kalsoom and Muhammad Iqbal, were acquitted by the learned trial Court and PSLA filed against their acquittal was dismissed by this Court; that the same evidence, which was disbelieved qua the above mentioned five acquitted co- accused persons cannot be believed qua the appellant without strong corroboration. But, there is absolutely no such corroboration.
' Learned counsel further contends that the motive part of the prosecution story and the extra- judicial confession made by Mst. Tahira Bibi (acquitted co-accused) has not been believed by the learned trial Court. According to the learned counsel, the witnesses have made material and dishonest improvements in their statements while appearing before the Court as story set out in the F.I.R.(Exh.PA/1) lodged by P.W.1 Talib Hussain and the statement of P.W.2 Muhammad Shahbaz recorded under section 161 Cr.P.C. Was totally different from the story mentioned in the Private Complaint (Exh.PE); that even after lodging the F.I.R., P.W.1 Talib Hussain made supplementary statements (Exh.D.A. And D.B.) wherein number of assailants were increased and acquitted co- accused of the appellant were implicated; that similarly, PW2 Muhammad Shahbaz also made supplementary statement and he too made dishonest improvements while appearing before the Court; that both the P.Ws, were confronted with their previous statements and it was brought on record that their version before the police was altogether different from their version before the Court; that in this case, F.I.R, was lodged 2-2003 while the Private Complaint was filed after about three and a half months after the occurrence and the ground for delayed filing of the Private Complaint was that the Investigating Officer of the case namely, Muhammad Boota C.W.3 did not record true version of the complainant but the complainant has admitted that he did not approach the higher authorities in the police hierarchy to the said effect; that even the complainant was directed by the learned trial Court to pay Rs,10,000 each to Abida, Kalsoom and Iqbal for falsely involving them in the case without any reasonable and probable cause as the accusations levelled against them were found to be frivolous and vexatious; that as P.W.1 Talib Hussain and P.W.2 Muhammad Shahbaz have made dishonest improvements before the Court, therefore, no reliance can be placed on this testimony.
' According to the learned counsel for the appellant, P.W. 1 Talib Hussain has stated in the F.I.R, that his house was situated near the house of his deceased brother Shahbaz while appearing in the Court he has stated that his house was adjacent to the house of his brother Shahbaz (deceased) which is belied by the Site Plan (Exh.CWl/A) where house of Shahbaz (deceased) finds no mention and that even P.W.1 Talib Hussain has admitted during his cross-examination that the No, of the house of Shahbaz (deceased) was 35-A while No, of his house was 48-A.
' Learned counsel has vehemently argued that so far as the other eye-witness of the occurrence i.e, PW2 Muhammad Shahbaz is concerned, "Qalandara" under section 182 P.P.C. (Exh.DM) was submitted against him for levelling false allegations against one Liaqat Ali; that though this P.W.
Has denied this fact but the same was proved through documents (Exh.DM to DO), therefore, no reliance can be placed on the testimony of this witness who is a proved liar.
' Learned counsel adds that there is no independent corroboration available on the record to the testimony offered by PW1 Talib Hussain, who is the real brother of Shahbaz (deceased), and PW2 Muhammad Shahbaz, therefore, in the presence of above mentioned dishonest improvements, no reliance can be placed on their statements.
' While advancing his submissions learned counsel further contends that it was a night time occurrence which took place during the winter season at about 1.30 a.m., therefore, at that odd hour of the night, presence of the eye-witnesses at the place of occurrence, as claimed by him, was highly improbably as, according to them, they were sitting in their house and were taking with each other regarding their business.
' While concluding this submissions learned counsel submits that as the prosecution has failed to prove its case against the appellant beyond and shadow of doubt, therefore, benefit of doubt be extended to the appellant and that, in the afore-referred circumstances, appellant is entitled to acquittal.
' In support of the above submissions, learned counsel has placed reliance on Ghulam Sikandar and another v. Mumaraz Khan and others (PLD 1985 SC 11), Muhammad Rafique and others v. The State and others (2010 SCMR 385) and Akhtar Ali and others v. The State (2008 SCMR 6).
6. Conversely, the learned Additional Prosecutor General for the State assisted by the learned counsel for the complainant, while vehemently opposing this appeal, contends that the appellant is named in the F.I.R. With a specific role of firing at the deceased, so, his case is distinguishable from the case of his acquitted co-accused; that the natural eye-witness account was furnished by the prosecution and despite cross-examination the defence could shake nothing from their testimony; that the PWs had no enmity with the appellant to falsely depose against him during the trial; that, even otherwise, in such like cases substitution is a rare phenomenon; that the improvements, as pointed out by the learned counsel for the appellant, are not material as eye- witness account furnished by both the P. Ws. Is consistent on all material aspects of the case; that the ocular account in this case is supported by the medical evidence; that the prosecution has proved its case against the appellant beyond any shadow of doubt and that the conviction and sentence awarded to the appellant by the learned trial Court be maintained. Learned counsel for the complainant has placed reliance on Jafar Ali v. The State (1998 SCMR 2669).
7. We have heard counsel for the parties at length, have given anxious consideration to their arguments and have also scanned the evidence on record with the able assistance of learned Advocates for the parties.
8. In this case, firstly, F.I.R. (Exh. PA/1) was lodged on the statement of P.W.1 Talib Hussain and as per F.I.R., the occurrence took place at about 1.30 a.m. On 20-2-2003, the matter was reported to the police by PW1 Talib Hussain at 2.15 a.m. In the Government Housing Scheme Renala Khurd, the formal F.I.R. Was registered on the same day at about 2.30 a.m. While the distance between the place of occurrence and the Police Station was about three furlongs.
9. According to the F.I.R., P.W.1 Talib Hussain along with Muhammad Iqbal and PW2 Muhammad Shahbaz were present in his house at 92-B House Scheme Renala Khurd and were talking with each other regarding business when at about 1.30 a.m. On hearing a fire shot from his brother Shahbaz (deceased)'s house, they rushed towards his house and saw in the light of the bulb that Muhammad Saleem (appellant) while armed with a .30 bore pistol along with an unknown accused was running from the house of deceased Shahbaz. Thereafter, according to him, they entered the house and saw dead body of the deceased on the bed in the reversed condition smeared with blood. On the same day, P.W.1. Talib Hussain got recorded a supplementary statement (Exh. DA) while another supplementary statement (Exh.DB) was made by him on 23-2- 2003.
10. We have noted that in the first supplementary statement made on the same day, PW1 Talib Hussain has made improvement by stating that he saw Saleem (appellant) while armed with .30 bore pistol along with two unknown assailant who were empty handed. He has made another improvement by implicating the acquitted co-accused as accused of the conspiracy. It has also been noted that in the second supplementary statement (Exh.DB) made by P.W.1 Talib Hussain on 23-2-2003, he has made further improvement by stating that he had identified two unknown assailants, who accompanied Muhammad Saleem (appellant) at the time of occurrence, as Zafar Iqbal and Muhammad Iqbal, acquitted co-accused. Similar improvement was made by P.W.2 Muhammad Shahbaz in Exh.DD.
12(sic) PW1 Talib Hussain filed Private complaint (Exh.PE) on 3-6-2003. In the private complaint, he has stated that on hearing first shot, he along with PW2 Muhammad Shahbaz and Muhammad Iqbal (given up P.W.) rushed towards the house of Shahbaz (deceased) where tube lights were on in the veranda and room. They saw that Muhammad Saleem (appellant) while armed with a pistol along with Zafar Iqbal armed with pistol and Mst. Tahira Bibi were standing in the room. On the Lalkara of Tahira Bibi, Muhammd Saleem (appellant) fired a shot with his pistol which landed on the back of the deceased.
13. Analysis of contents of the F.I.R., supplementary statements and averments of the private complaint has led this Court to A an irresistible conclusion that the story given in the F.I.R. Is absolutely different from the one contained in the Private complaint.
14. PW1 Talib Hussian was cross-examined at length on the point as to whether he had lodged any complaint to the higher police officers against the alleged dishonest investigation conducted by C.W.3 Muhammad Boota to which he has replied that he did not make any complaint before any superior police officer regarding obtaining of his signatures by CW3 Muhammad Boota on the blank paper. He has further stated that he had asked the said Investigating Officer qua non- recording of his statement in the true perspective but he was promised by the said I.O. To the effect that he will record his correct statement. Perusal of statement of this P.W. Before the Court shows that even then this witness did not report the matter to the higher police officer.
15. As far as statement of P.W.2 Muhammad Shahbaz, recorded under section 161 Cr.P.C. Is concerned, his statement is exactly in line with the story given by P.W.1 Talib Hussain in the F.I.R. And in the supplementary statements. Both these witnesses have improved their stances before the learned trial Court, as observed above. They were duly confronted with their previous statements and it has come on record that they have made dishonest improvements while appearing before the learned trial Court. The improvements made by these two eye-witnesses is a deliberate attempt to improve the case, therefore, no reliance can be placed on this type of evidence. To fortify our view, reliance is placed on Muhammad Rafique and others v. The State and others 2010 SCMR 385, wherein at page 396, the learned apex Court of the country, has been pleased to observe as under:- "24 This Court in the case of Seed Muhammad Shah v. State 1993 SCMR 550 observed that if a witness improves his statement on material aspects of the case then such improvement is not worthy of reliance and the evidence of such witness requires corroboration. In the case of Khalid Javed v. State (2003 SCMR 1419), while reiterating the above rule, it was further observed that such witness is to be considered to be wholly unreliable and it is not advisable to place explicit reliance upon his evidence . "
"25. As regards supplementary statement, P.W.17 took names of 10 more accused person from the names he took in the F.I.R. The same can be treated as statement under section 161, Cr.P.C. That can only be used by the accused to contradict the witness. It cannot be used by the prosecution for any purpose. This improvement clearly shows that supplementary statement was made after due consultation and deliberation to falsely involve the accused. This point was examined by this Court in the case of Falak Sher v. State 1995 SCMR 1350, wherein it has been observed that, 'any statement or further statement of the first informant recorded during the investigation by police would neither be equated with First Information Report nor read as part of it and the involvement of additional accused in such statement was fake improvement which made the basis for other eye- witnesses as well for false implication'. The said rule was reiterated in subsequent decision of this Court in the case of Khalid Javed v. State 2003 SCMR 1419 and further observed that such witness would be unreliable."
16. There is another aspect of the case. On the basis of same evidence five co-accused of the appellant, namely, Zafar Iqbal, Mst. Tahira Bibi, Mst. Abida E Perveen, Mst. Kalsoom and Muhammad Iqbal, though were named through supplementary statements and in the private complaint, have been acquitted by the learned trial Court and PSLA No,89 of 2004 filed against their acquittal was dismissed by this Court. Now the question arises as to whether evidence of P.W.1 Talib Hussain (complainant) and P.W.2 Muhammad Shahbaz can be believed for maintaining the conviction against the appellant, the answer would be that until and unless their evidence is corroborated by E some other evidence, conviction of the appellant cannot be maintained on the basis of testimony furnished by both these two witnesses. We have not been able to find out any independent corroboration to the statements of these witnesses. The argument of the learned APG and complainant's learned counsel that statements of P.W.1 and P.W.2 are corroborated by the medical evidence furnished by PW8 Dr. Arshad Iqbal has no force because the medical evidence cannot be sued as a corroboratory piece of F evidence as it is only confirmatory in nature. In the case of Ghulam Sikandar and another v. Mamraz Khan and others PLD 1985 SC 11, at page 23, the learned apex Court has been pleased to hold as under:- "It is often said that the principle falsus in uno falsus in omnibus is not applicable in Pakistan. The same principle has been described in some cases, slightly differently; namely that the testimony of an eye-witness should not be treated as indivisible although there is no consensus with regard to the later view. A contrary view has also been held. Expressed in a more direct manner a similar rule in the administration of criminal justice which is hall-mark of Islamic Jurisprudence, that when a witness has been found false with regard to the implication of one accused about whose participation he had deposed on oath the credibility of such witness regarding involvement of the other accused in the same occurrence would be irretrievably shaken. However, as a matter of convenience a rule has been developed in Pakistan since the famous case of Ghulam Muhammad v. Crown PLD 1951 Lah. 66 propounded by late Chief Justice Muhammad Munir that where it is found that a witness has falsely implicated one accused person, ordinarily he would not be relied upon with regard to the other accused in the same occurrence. But if the testimony of such a witness is corroborated by very strong and independent circumstances regarding other the reliance might then be placed on the witness for convicting the other accused.."
' In Iftikhar Hussain v. The State 2004 SCMR 1185, at page 562, the honourable Supreme Court of Pakistan, has been pleased to hold as under:- "....It is true that principle of falsus in uno falsus in omnibus is no more applicable as on following this principle, the evidence of a witness is to be accepted or discarded as a whole for the purpose of convicting or acquitting an accused person, therefore, keeping in view prevailing circumstances, the Courts for safe administration of justice follow the principle of appraisal of evidence i.e, sifting of grain out of chaff i.e, if an ocular testimony of a witness is to be disbelieved against a particular set of accused and is to be believed against another set of the accused facing the same trial, then the Court must search for independent corroboration on material particulars as has been held in number of cases decided by the Superior Courts. Reference may be made readily to the case of Sarfraz alias Sappi and 2 others v. The State 2000 SCMR 1758 "
' In Akhtar Ali and others v. The State 2008 SCMR 6, at page 12 of the judgment, the following principles have been highlighted by the learned apex Court:--- ...."it is a settled law that eyewitnesses found to have falsely implicated five out of eight accused then conviction of remaining accused on the basis of same evidence cannot be relied upon without independent corroboration. See Ghulam Muhammad's case PLD 1975 SC 588, Sheral alias Sher Muhammad's case 1999 SCMR 697 and Ata Muhammad's case 1995 SCMR 599. It is also a settled law that credibility of the ocular evidence is not divisible. See Faiz Bakhsh's case PLD 1959 PC 24, Nadia's case 42 Cr.L.J.53, Muhammad's case PLD 1954 FC 84, Sher Bahadar's case 1972 SCMR 651 and Muhammad Afsar's case PLD 1954 FC 171. It is also a 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 had improved his statement dishonestly, therefore, his credibility becomes doubtful on the well known principle of criminal jurisdiction that improvements once found deliberate and dishonest cast serious doubt on the veracity of such witnesses. See Hadi Bakhsh's case PLD 1963 Kar 805 "
17. Apart fro 1 above, there is no recovery from the appellant. The motive alleged against the appellant was that he had illicit relations with the acquitted co-accused Mst. Tahira but the fact remains that in this regard no evidence was produced. C.W.3 Muhammad Boota, while appearing before the Court, has stated that H during the course of investigation conducted by him, no person including the P.Ws. Had ever stated before him that any of them had ever seen the appellant with this acquitted co-accused Tahira, in an objectionable condition, therefore, we are of the view that the prosecution has also failed to prove the motive part of the prosecution case. In Noor Muhammad v. The State and other 2010 SCMR 97, at page 101, the honourable Supreme Court of Pakistan, has been pleased to observe as under:- "...Thus the prosecution has failed to prove the motive. It has been held in the case of Muhammad Sadiq v. Muhammad Sarwar 1979 SCMR 214 that when motive is alleged but not proved then the ocular evidence required to be scrutinized with great caution. In the case of Hakim Ali v. The State 1971 SCMR 432 it has been held that the prosecution though not called upon to establish motive in every case, yet once it has set up a motive and failed to establish it, the prosecution must suffer consequence and not the defence.
' In the case of Ameenullah v. State PLD 1979 SC 629, it has been held that where motive is an important constituent and is found by the Court to be untrue, the Court should be on guard to accept prosecution story."
18. It is a case of doubtful in nature. It is settled by the apex Court of the country that in case of doubt, its benefit must go to I the accused not as a matter of grace but of right. The same proposition came up for consideration in the case reported as Muhammad Akram v. The State 2009 SCMR 230, wherein, at page 236, the Honourable Supreme Court of Pakistan, held as under:-- - "13. The nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstances 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 or grace and concession but as matter of right."
(emphasis supplied).
19. We have taken note that the learned trial Court while parting with the impugned judgment, directed P.W.1 Talib Hussain (complainant) to pay a compensation in the sum of Rs,10,000 to Abida, Kalsoom and Iqbal for falsely involving them without any reasonable and probable cause as the accusations levelled against them were found to be frivolous and vexatious which is yet another factor against the said witness.
20. In the afore-referred circumstances, this Court is of the considered view that the prosecution has failed to prove its case against the appellant beyond any shadow of doubt. Therefore, this appeal is allowed, the impugned judgment K of conviction is set aside and the appellant is acquitted from the charges levelled against him. He is behind the bars and shall be released forthwith if not required to be detained in any other case.
' Murder Reference is answered in the Negative and sentence of death is not confirmed.