Manzoor Ahmad Malik, J.--This judgment shall dispose of Criminal Appeal No, 301/04 (Muhammad Yousaf vs. The State) and Murder Reference No, 290/04, 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 27.2.2004 passed by the learned Additional Sessions Judge, Pindi Bhattian, District Hafizabad, whereby, appellant was convicted for the murder of Anayat Shah (deceased), under Section 302(b) PPC as tazir and sentenced to death with a further direction to pay a compensation of Rs, 1,00,000/- as provided under Section 544-A Cr.P.C. to the legal heirs of the deceased in default whereof to further undergo SI for six months. He was also convicted under Section 324 PPC for attempt to commit Qatl-i-Amd of the complainant and sentenced to ten years RI.with a fine of Rs, 10,000/- in default whereof to further undergo SI for six months. However, benefit of doubt was extended to Akbar, Muhammad Mansha, Waris, Barkhurdar Ali, Muhammad Hanif, Muhammad Nawaz, Allah Ditta and Ijaz co-accused by way of acquittal from the charge framed against them.
2. Brief facts of the case, as given by PW-8 Muhammad Yousaf Shah (complainant) fn the FIR (Exh.PK/3) are that on 7.5.2003, after Maghrab prayer, he alongwith his deceased brother Anayat Shah, were returning home from their Clinic, from Pindi Bhattia, on the motorcycle, while, on the way, Muhammad Waris and Barkhurdar started chasing them from the Bypass on a motorcycle.
According to the complainant, when they reached under the motorway bridge, Waris intercepted complainant's said brother Anayat Shah(deceased). It has been mentioned by the complainant in the FIR that Akbar armed with a carbine, Muhammad Yousaf armed with a pistol, Muhammad Mansha armed with pistol, Muhammad Nawaz armed with pistol, Ijaz Ahmad armed with a carbine and Muhammad Hanif armed with a pistol emerged there. Akbar raised a Lalkara that the complainant and his brother Anayat Shah (deceased) be taught a lesson for not giving them possession of land, upon which Mbar, Yousaf, Waris, Mansha and Barkhurdar stepped forward and made Anayat Shah fall on the ground, whereafter, Yousf (appellant) fired a pistol shot at the deceased hitting him near the right ear, Mansha fired a pistol shot which hit above the forehead of Anayat Shah, Waris took out pistol from his dub and fired a shot at the deceased which landed just above the eye of Anayat Shah. It has further been mentioned in the FIR that after receiving the above injuries, Anayat Shah breathed his last at the spot. The complainant also stated in the FIR that he also received injuries at the hands of accused Nawaz, Hanif and Ijaz who stepped forward to kill the complainant, the effort of the remaining accused to kill him through firing also remained unsuccessful and those fires hit their own companions, namely, Akbar and Barkhurdar. As per FIR, the complainant also stated that the occurrence was witnessed by Muhammad Afzal and Muhammad Hayat and the accused decamped from the spot. As per FIR, the offence was committed with the abetment of. Allah Ditta. The motive stated in the FIR was a land dispute.
3. After completion of investigation, challan was prepared and submitted before the learned trial Court, copies were distributed to the accused 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 12 witnesses during the trial The learned Special Prosecutor gave up Muhammad Aslam, Manzoor, Mehndi Shah, Anayat Shah, Saifullah, Afzaal, Maqsood Ahmad Bhatti and Muhammad Ashraf ASI. He tendered in evidence reports of the Chemical Examiner Exh.PR, Serologist Exh.PS and Forensic Science Laboratory Exh.PT and closed the prosecution evidence. The appellant/accused were examined under Section 342 Cr.P.C. Accused Hanif and Akbar tendered in evidence some documents. All the accused, including the appellant, did not opt to depose on Oath as required under Section 340(2) Cr.P.C.
5. Learned counsel for the appellant contends that the appellant has falsely been involved in this case on account of mala fide of the complainant and the local police; that the story narrated in the FIR is not probable and, as such, cannot be believed because in the FIR, PW-8 Muhammad Yousaf Shah (complainant) has stated that the firing of the appellant hit near the right ear of the deceased Anayat Shah whereas the shot fired by Mansha hit on the forehead of the deceased and similarly the shot fired by Waris hit above the eye of the deceased but, according to the doctor, who conducted post-mortem examination on the body of deceased i,e, PW-6 Dr. Muhammad Hussain Waseer, there was only one injury on the person of the deceased i,e, on the back of left side of head, therefore, the ocular account in this case is not in line with the medical evidence; that PW- 8 Muhammad Yousaf Shah (complainant) has stated that after Fard Bayan (Exh.PK) he got another statement (Exh.PK/2) recorded but the circumstances suggest that this statement was recorded after the post-mortem examination of the deceased as the record prepared. by the police official especially Inquest Report (Exh. PH/5), because the prosecution case mentioned in the said report is exactly the same as was narrated in Exh.PK; that during the trial this witness has made dishonest improvements and stated that the shot fired by the appellant hit on the left side of head whereas the shots fired by Mansha and Waris did not hit the deceased.
Learned counsel has vehemently argued that two other accused persons, namely, Akbar and Barkhurdar were injured by the complainant party in this case but their injuries were suppressed by the prosecution and in the FIR it is only stated that the shots fired by the accused party hit them which is not probable; that both these persons were medically examined on the same day by the same doctor i,e, PW-6 Dr. Muhammad Hussain Waseer even prior to the complainant party which fact has even been admitted by the said doctor.
While advancing his submissions learned counsel contends that the recovery of pistol has been disbelieved by the learned trial Court and even report of the Forensic Science Laboratory is of no avail to the prosecution because no crime empty was recovered from the spot. According to the learned counsel, as far as abscondence of the appellant is concerned, PW-3 Muhammad Anwar Constable has admitted that he did not associate any body from the area with the proceedings of abscondence and even otherwise, it was only for a period of seven months, which cannot be considered as a corroborative piece of evidence in view of the judgment of the Hon'ble Supreme Court reported in Taj. Muhammad Vs. Pesham Khan and others (1986 SCMR 823).
According to the learned counsel, the other eye-witness, namely, PW-9 Muhammad Hayat has totally been disbelieved by the learned trial . Court; that according to PW-8 Muhammad Yousaf Shah (complainant), he was injured in this case at the hands of Nawaz and Hanif but both of them were acquitted by the learned trial Court; that mere injuries on the person of this PW would not make him a truthful witness. He has placed reliance on Muhammad Irshad Vs. The State (2000 SCJ 195). As per learned counsel, circumstances of the case suggest that PW-8 Muhammad Yousaf Shah (complainant) was not present at the spot; that Akbar instituted a private complaint and proceedings were stayed by this Court, therefore, no progress could take place in the said case coupled with the fact that PW-8 was a Proclaimed Offender at the time of recording of his statement by the learned trial Court which is, evident from Exh.DG.
Learned counsel further contends that the FIR was got registered against nine accused persons including the appellant out of whom seven were shown to be present at the spot whereas one accused, namely, Allah Ditta was an accused of abetment that eight out of the said nine accused have been acquitted by the learned trial Court and Crl.A. No, 451/04 (Muhammad Yousaf Shah vs. Akbar etc.) filed against their acquittal was dismissed by a learned Division Bench of this Court on 28.6.2004 and as such the same evidence cannot be believed qua the appellants without strong corroboration which is very much lacking in this case.
While concluding his submissions learned counsel submits that as the prosecution has failed to prove its case against the appellant beyond any shadow of doubt, therefore, benefit of doubt may be extended to the appellant as a matter of right and not a grace and that, in the afore-referred circumstances, appellant is entitled to acquittal. He has further placed reliance on Falak Sher (A), Sheru Vs. The State (1995 SCMR 1350), Aneesur Rehman and another Vs. The State (PLD 2002 Lahore 110), Ghulam Sikandar and another Vs. Mamraz Khan and others (PLD 1985 SC 11), Muhammad Iqbal Vs. Abid Hussain (A), Mithu and 6 others (1994 SCMR 1928), Muhammad Fazil Vs. Bashir Ahmad and another (2009 SCMR 1382).
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 Exh.PK with a specific role; 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 PW-s 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 case of the appellant is distinguishable from the acquitted co-accused; that the ocular account in this case is corroborated by the medical evidence; that the prosecution case further finds support from the abscondence of the appellant; that the presence of the appellant is proved on the record; that the motive has been proved by the prosecution; 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.
7. We have heard learned 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. Occurrence in this case took place on 7.5.2003 after "Maghrab Prayer the matter was reported to the police by PW-8 Muhammad Yousaf Shah (complainant) through Fard Bayan (Exh.PK) at 8.55 p.m. within the area of "Bagh-e-Nao", the formal FIR (Exh.PK/3) was registered on the same day at about 9.10 p.m. while the distance between the place of occurrence and the Police Station was about three kilometers.
9. The most important point in this case is as to whether the evidence of the eye-witnesses who were disbelieved by the learned trial Court qua the eight acquitted co-accused of the appellant, can be believed qua the appellant.
10.PW-8 Muhammad Yousaf Shah (complainant) and PW-9 Muhammad Hayat have furnished the ocular account in this case.
11.Post-mortem examination on the body of the deceased was conducted by PW-6 Dr. Muhammad Hussain Waseer who noted the following injuries on the body of Anayat Shah deceased:-- "1. Fire-arm wound of entry 11/2 cm x 11/2 cm going x on the back of left side of head. Edges were inverted. Margins were burnt and; tattooing are present.
2 Fire-arm wound of exit 3 cm x 2cm coming out on the back of the right head, edges were averted continuous with Injury No, 1".
12.In the FIR, PW-8 Muhammad Yousaf Shah (complainant) has specifically alleged that the shot fired by the appellant hit near the right side of the ear of the deceased. It is also mentioned in the FIR that the shot fired by Mansha (acquitted co-accused) hit at the forehead of the deceased whereas fire of Waris (acquitted co-accused) landed on the eye of the deceased but in the post- mortem examination there is only one fire-arm injury on the person of the deceased and that too is on the back of left side of head(Injury No, 1) while Injury No, 2 is an exit of Injury No, 1 which is on the back of the right head. The post-mortem examination on the body of the deceased shows that there is no injury either on the forehead or on the eye of the deceased as stated by the complainant in Exh.PK, therefore, in our view the ocular account in this case is not in line with the medical evidence. PW-8 Muhammad Yousaf Shah (complainant), while appearing before the Court, made some improvements to make in line the ocular account with the medical evidence by stating that the shot fired by the appellant hit on the left side of the head of the deceased whereas the shots fired by Mansha and Waris did not hit the deceased. He has also tried to justify his stand by stating that immediately after the occurrence he got recorded another statement which was brought on record as Exh.PK/2 but perusal whereof shows that no time or date stands mentioned in the said statement. Moreover, the circumstances suggest that the statement or application (Exh.PK/2) was not immediately recorded because in the column 'brief facts of the case' of Inquest Report (Exh.PH/5), the same facts are mentioned which were stated in the FIR or Fard Bayan (Exh.PK). Therefore, the contention of the learned counsel for the appellant appears to be correct that Exh.PK/2 was written after the post-mortem examination. PW-8 has made improvements in his statement before the Court and even he has been disbelieved regarding his own injuries which were attributed to three co-accused of the appellant, namely, Muhammad Nawaz, Muhammad Hanif and Ijaz who have been acquitted by the learned trial Court. In this regard reliance is placed on Muhammad Fazil Vs. Bashir Ahmad and another (2009 SCMR 1382), wherein, at page 1385, the Hon'ble Supreme Court of Pakistan, while upholding judgment of acquittal, held as under:-- ....It is settled principle of law that improvements of the witnesses to make the oral evidence in accordance with the medical evidence causes serious doubt about veracity of such witnesses as law laid down by this Court in Shahbaz Khan Jakhrani's case (1984 SCMR 42) and Muhammad Shafique Ahmad's case (PLD 1981 SC 472). As ocular evidence contradicts by medical evidence as mentioned above, therefore, learned High Court was justified to acquit Respondent No, 1 which, is in consonance with the law laid down in various pronouncements. See Bagh Ali's case (PLD 1973 SC 321), Darey Khan's case (1972 SCMR 578) and Shah Bakhsh's case (1990 SCMR 158) " In Muhammad Irshad Vs. The State (2000 SCJ 195), at Page 199, the learned Apex Court has been pleased to observe as under:-- ....It is settled proposition of law that evidence on the capital charge must come from an unimpeachable source or be supported by strong circumstances that might remove inherent doubt attaching to the evidence of the interested and partisan witnesses. In the instant case Muhammad Riaz PW- was disbelieved by the Courts below in respect of his own injuries resulting in the acquittal of Imam Bakhsh. In this view of the matter lit would be highly unsafe to accept his testimony against Muhammad Irshad and Muhammad Aslam appellants on a capital charge....
13.As far as statement of PW-9 Muhammad Hayat is concerned, the learned trial Court has rightly discarded his testimony because the said witness, during the cross-examination, has stated that he reached at the spot after firing on the complainant.
14.We have noted that eight co-accused of the appellant have already been acquitted by the learned trial Court and the evidence believed by; the learned trial Court qua the appellant, stands disbelieved qua those eight co-accused and Crl.A.No, 451/04 filed by the complainant against their acquittal was dismissed by a learned Division Bench of this Court on 28.6.2004. Therefore, in such like circumstances, we are of the view that strong corroboration to the ocular account furnished by the prosecution is required in this case for maintaining conviction of the appellant on a capital charge especially when, under the circumstances, statement of PW-8 Muhammad Yousaf Shah (complainant) suffers from inherent defects on account of his changed versions because his statement was not in line with the medical evidence and, the injuries sustained by two acquitted co-accused, namely, Akbar and Barkhurdar were not exactly explained. In this regard reference can be made to Aneesur Rehman and another Vs. The State (PLD 2002 Lahore 110) wherein further reliance was placed on a judgment of the Apex Court in the case of Ghulam Sikandar and another Vs. Mamraz Khan and others (PLD 1985 SC 11). Reliance is also placed on Muhammad Irshad Vs. The State (2000 SCJ 195), Iftikhar Hussain Vs. The State (PLJ 2004 SC 552), Akhtar Ali and others Vs. The State (PLJ 2008 SC 269), Ghulam Mustafa Vs. The State (1995 SCMR 175) and Atta Muhammad and another Vs. The State (1995 SCMR 599). In Ghulam Sikandar's case (supra), at Page 23, the Apex Court observed 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 (1) 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 the case of Iftikhar Hussain's (supra), at Page 562, the Hon'ble 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 versus The State (2000 SCMR 1758)"
In Akhtar Ali's case (supra), at Page 275 of the judgment, the following principles have been highlighted by the learned Apex Court:-- It is a settled law that eye-witnesses 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 (PLJ 1976 SC 29), 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)"
15.We have made our best efforts, with the able assistance of the learned APG and the complainant's learned counsel to dig out any independent piece of evidence qua furnishing independent corroboration through an unimpeachable source to the ocular account furnished by PW-8 Muhammad Yousaf Shah (complainant) and PW-9 Muhammad Hayat but both the learned counsel have not been able to point out a single piece of such type of independent piece of evidence and have only referred to appellant's abscondence which, in our view, in the peculiar facts and circumstances of the case, cannot corroborate statement of the said PW.
16. We have noted that the appellant was declared absconder and in this respect statement of PW-3 Muhammad Anwar has been recorded but the said witness has admitted that he did not associate any body from the village in the proceedings which were conducted for declaring the appellant absconder. Even otherwise, it is consistent view of the Hon'ble Supreme Court of Pakistan that mere abscondence cannot be considered as a corroborative piece of evidence to maintain a conviction. To fortify our view, reference is given to the cases of Muhammad Farooq and another Vs. The State (2006 SCMR 1707), Abdul Khalio Vs. The State (2006 SCMR 1886), Rahimullah Jan Vs. Kashif and another (PLD 2008 Supreme Court 298) and Muhammad Zaman and another vs. The State (PLD 2008 Karachi 348).
17. As far as recovery is concerned, the learned trial Court has rightly disbelieved the same and even otherwise no. empty was recovered from the spot, therefore, no reliance can be placed on this piece of evidence. Reliance is placed on Muhammad Iqbal Vs. Abid Hussain @, Mithu and 6 others (1994 SCMR 1928), wherein, at page 1934, it has been held that " since no empty was recovered from the spot, therefore, the recoveries of fire-arms from the accused/respondents are of no consequence...
18.So far as motive part of the prosecution case is concerned, it was a joint and not specific against the appellant, so, this is not relevant in this case. Even otherwise, it is always in the mind of the accused and it is settled law that it has no bearing affects on the merits of the case.
19. The prosecution case is not free from doubts and it is settled by the Hon'ble Supreme Court of Pakistan that when a doubt is created by the defence in the prosecution case then its benefit must to the accused as a matter of right and, not a grace. It is settled by the Apex Court of the country that in case of doubt, its benefit must go to 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 Vs. The State (2009 SCMR 230), wherein, at Page 236, the Hon'ble 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 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".
(emphasis supplied)
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 of conviction is set-asid 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.