Manzoor Ahmad Malik, J.--This judgment shall dispose of Criminal Appeal No, 265/04 (Naseer Ahmad vs. The State) and Murder Reference No, 194/04 sent by the learned trial Court for confirmation or otherwise of the sentence of death awarded to the appellant on four counts, as both arise out of the same judgment dated 16.2.2004 passed by the learned Additional Sessions Judge, Daska, whereby, appellant was convicted for the murder of four persons, namely, Ihsanullah, Ijaz Ahmad, Nasir Mahmood and Jaabar Khan under Section 302(b) PPC and sentenced to death on four counts with a further direction to pay a compensation of Rs, 1,00,000/- on four counts as provided under Section 544-A Cr.P.C. to the legal heirs of the deceased. He was also convicted under Section 324 PPC for making murderous assault on Agha Khan and Rizwan @ Pashi on two counts and sentenced to suffer ten years RI on two counts with a direction to pay a fine of Rs,30,000/- on two counts in default whereof to further undergo three months S.I. on each count.
Appellant was further convicted under Section 337-F(i) PPC and sentenced to one year RI as Tazir alongwith Daman of Rs,5,000/- to be paid to Agha Khan injured-PW.
2. Brief facts of the case, as given by PW-1 Muhammad Asif (complainant) in the FIR(Exh.PA/1) are that on 19.7.2001 at about 3.00 p.m., he alongwith Haji Ihsanullah Cheema, Ejaz Ahmad, Nasir Mahmood, Jaabar Khan, Rizwan @ Pashi and Usman Khan were present at his poultry farm situated in village Gojra, when, Ghulam Shabbir, Muhammad Iqbal, Naseer Ahmad (appellant) alongwith two unknown persons, while armed with firearms, came there in a white colour car.
According to the complainant the unknown assailants remained seated in the said car whereas Ghulam Shabbir, Muhammad Iqbal and Naseer Ahmad(appellant) alighted from the car and made straight firing on the complainant party in consequence whereof Ihsanullah, Nasir Mahmood, Ijaz Ahmad and Jaabar Khan breathed their lasts at the spot whereas Rizwan @ Pashi and Usman Khan received injuries. It has been mentioned by the complainant in the FIR that the occurrence, apart from the complainant, was witnessed by his father Haji Inayat Ali and Qaiser who saved their lives while hiding behind the trees. It has further been mentioned in the FIR that the occurrence was committed with the abetment of Abid Hussain Cheema, Hassan Raja and Sajjad Cheema who hired services of the above mentioned assailants and provided weapons for the purpose. The motive stated in the FIR was that a landed property measuring ten acres was purchased by complainant's brother, namely, Ihsanullah (deceased) from one Akbar Ali while Abid Hussain etc. intended to purchase the said property qua which civil suits were pending in the civil Court.
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 24 witnesses during the trial. The appellant/accused was examined under Section 342 Cr.P.C. He opted not to depose on Oath as required under Section 340(2) Cr.P.C. Muhammad Ashraf appeared as DW-1 while Muhammad Riaz ASI as CW1.
5. Learned counsel for the appellant contends that the appellant has falsely been involved in this case on account of malafide of the complainant and the local police and that the prosecution, for the conviction of the appellant, has mainly relied on the evidence furnished by PW-1 Muhammad Asif and PW-2 Agha Khan which cannot be believed for maintaining conviction of the appellant on a capital charge. Elaborating his arguments, learned counsel contends that as far as PW-1 Muhammad Asif is concerned, admittedly, he had no business at the place of occurrence as he has categorically admitted that Ihsanullah deceased, real brother of the said PW- had a Poultry Farm whereas PW1 used to run the business of brick kiln at a distance of five fields from the said poultry farm. According to the learned counsel, PW-1 Muhammad Asif came at the place of occurrence, per chance, without assigning any reason for his presence at the spot, therefore, no reliance can be placed on his testimony. Even otherwise, his presence at the spot is belied from the other circumstances of the case because despite showing of bullets by the assailants, as alleged, PW-1 Muhammad Asif did not even receive a scratch.
So far as testimony of PW-2 Agha Khan is concerned, learned counsel contends that name of the said witness has been mentioned as Usman Khan in the FIR and the evidence furnished by this witness cannot be accepted because his statement under Section 161 Cr.P.C. was recorded soon after the occurrence by CW1 Muhammad Riaz ASI wherein he nominated only Iqbal and two unknown persons as accused; that he has not given any description of other accused persons; that after arrest of the appellant, no identification Parade took place and in the cross-examination, this witness has admitted that the appellant was the brother-in-law of Iqbal accused; that he has not offered any explanation as to how he came to know about the name of appellant because in the Court he has introduced name of the appellant as one of the assailants present at the spot and that in these circumstances, no reliance can be placed on the testimony of this witness. In support of the above submissions, he has placed reliance on MUHAMMAD PERVEZ AND OTHERS VS. THE STATE AND OTHERS (2007 SCMR 670) and MEHMOOD AHMAD AND 2 others vs. STATE (PLJ 1995 SC 1) to contend that the testimony of a chance witness who made dishonest improvements, cannot be believed and on MURSAL KAZMI (a), QAMAR SHAH AND ANOTHER VS. THE STATE (2009 SCMR 1410) to submit that the identification of an accused at trial is not reliable if identification Parade was not held qua an accused to whom the witness was not familiar.
Learned counsel also contends that it was bounden duty of the prosecution to prove its case against the appellant and since it has failed to discharge the said onus, therefore, its benefit must go to the appellant by way of his acquittal. He has relied on SYED SAEED MUHAMMAD SHAH VS. THE STATE (1993 SCMR 550).
While advancing his submissions qua abscondence of the appellant, learned counsel contends that the said abscondence has not been proved in accordance with law and the report prepared by PW-15 Muhammad Anwar, on the face of it, it is fictitious, because he has admitted in the cross- examination that he did not record statement of the Lumberdar of the village or any other person.
Further submits that if it is considered to be true even then it cannot be taken into consideration for the conviction of the appellant; that even it cannot be considered as a corroborative piece of evidence because one tainted piece of evidence cannot corroborate another tainted piece of evidence. He has relied on MUHAMMAD FAROOQ AND ANOTHER VS. THE STATE (2006 SCMR 1707), ABDUL KHALIQ 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).
Learned counsel for the appellant has further argued that the learned trial Court has convicted the appellant for the murder of four persons and for murderously assaulting PW-2 Agha Khan and Rizwan @ Pashi not produced), therefore, presumption can be raised against the prosecution in view of Article 129(g) of the Qanun-e-Shahadat Order, 1984 as the evidence of Rizwan Ca Pashi was withheld. He has relied on MEHRAJ SINGH (L/NK) vs. STATE OF U.P. (1995 PSC CRIMINAL 727).
Learned counsel also submits that the whole prosecution story becomes doubtful if the motive once set up but is not proved or changed during the trial. Learned counsel, while drawing our attention to Exh.PV, which is an application addressed to the Medical Officer for the examination of Agha Khan (PW-2) for his medical examination, contends that prosecution's case is that the formal FIR was registered at 4.25 p.m. and as per statement of Dr.Muhammad Asif Mughal (PW-14), the said injured was medically examined at 4.15 p.m. on 19.7.2001. But the application(Exh.PV), which, as per PW-23 Zafar Iqbal Dogar SI, was prepared at the spot for referring the injured(Agha Khan) for medical examination, contains not only number of the FIR but details of the offences under which the FIR was registered and as such the time of the registration of the FIR becomes a doubtful affair.
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 and that, in the afore-referred circumstances, appellant is entitled to acquittal.
6. Conversely, the learned. Additional Prosecutor General for the State, while vehemently opposing this appeal, contends that the presence of PW-1 Muhammad Asif and PW-2 Agha Khan is proved at the spot; that the testimony of PW-2 Agha Khan, being injured, is trustworthy and confidence inspiring as the occurrence in this case took place at about 3.00 p.m. while this witness was examined by the doctor about 4.15 p.m. on the same day; that the appellant is named in the promptly lodged FIR 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 the appellant remained absconder for a period of about eleven months which is yet another corroborative piece of 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.
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 19.7 2001 at about 3.00 p.m., the matter was reported by PW-1 Muhammad Asif through a written application Exh.PA to the police at 4.00 p.m. at the Poultry Farm of Haji Ihsanullah within the area of Gojra, Police Station Bambanwala, the formal FIR was registered on the same day at about 4.25 p.m. while the distance between the place of occurrence and the police station was three kilometers.
9. In the FIR, three persons were named as assailants, three were arrayed as accused of abetment while two were mentioned as unknown. Accused Iqbal died during the police custody. Challan in this case was submitted against Naseer Ahmad appellant. Ghulam Shabbir, Hasan Raza and Sajjad Haider. Ghulam Shabbir was declared Proclaimed Offender while Hasan Raza and Sajjad Haider were acquitted by the learned trial Court during the trial under Section 265-K Cr.P.C. as the PW-s did not utter a word regarding their role of abetment in their examinations-in-chief.
10. The ocular account in this case was furnished by PW-1 Muhammad Asif and PW-2 Agha Khan who claimed to be the injured witness of the occurrence.
11.As far as testimony of PW-1 Muhammad Asif is concerned, we have noted that in his written complaint (Exh.PA), which is signed by him and on the basis of which formal FIR (Exh.PA/1) was registered, the said PW- has stated that on the fateful day and tune, he, alongwith his real brother Haji Ihsanullah Cheema (deceased), Ijaz Ahmad (deceased), Nassir Mehmood (deceased), Jaabar Khan(deceased), Rizwan @ Pashi and Usman Khan were present at the Poultry Farm of his real brother Ihsanullah(deceased), when, on a white colour car, the accused persons, namely, Ghulam Shabbir(P.O.), Muhammad Iqbal(died during police custody) and Naseer Ahmad(appellant) alongwith two unknown assailants, while armed with firearms, reached there. According to him, he could recognize the two unknown accused on their having come before him. Two unknown accused persons, as claimed by him, remained seated in the said car whereas Ghulam Shabbir, Muhammad Iqbal and Naseer Ahmad(appellant) alighted from the car and made straight firing on the complainant party, with their respective weapons, with the intention to kill them, in consequence whereof complainant's brother Ihsanullah, Nassir Mahmood, Ijaz Ahmad and Jaabar Khan received serious injuries and died at the spot whereas Rizwan @ Pashi and Usman Khan received severe injuries. It has been mentioned by the complainant in the FIR that the occurrence, apart from the complainant, was witnessed by his father Hajji Inayat Ali and Qaiser who saved their lives while hiding behind the tress. It has further been mentioned in the FIR that the occurrence was committed with the abetment of Abid Hussain Cheema, Hassan Cheema and Sajjad Cheema who sent hired assassins and provided weapons to them. The motive stated in the FIR was that a landed property measuring ten acres was purchased by complainant's brother, namely, Ihsanullah (deceased) from one Akbar Ali while Abid Hussain etc. intended to purchase the said property qua which civil suits were pending in the civil Court.
12. First of all, we would like to discuss the ocular account to see whether the prosecution has proved, its case against the appellant to the hilt to maintain his conviction on a capital charge and to what extent it succeeded to discharge the said onus. PW-1 Muhammad Asif, is complainant of the case and a real brother of one of the deceased, namely, Ihsanullah. It is pertinent to mention here that in the complaint Exh.PA and FIR Exh.PA/1, Usman Khan son of Agha Khan was mentioned as injured eye-witness of the occurrence while the complainant, through a supplementary statement, though made on the same day, changed the name as Agha Khan son of Abdul Jabbar.
While name of one witness was changed from Qaisar son of Jafar to Faisal son of Jafar. Further more, in the FIR, indiscriminate firing is attributed to all the three accused persons and no specific fire was attributed to any of the assailants but while appearing before the Court he has attributed a fire to Naseer Ahmad appellant on the person of Ijaz deceased, fire of Ghulam Shabbir was alleged to have hit Muhammad Ihsan coupled with collective firing by the assailants on the person of the deceased and injured. In the FIR, he stated that the deceased were done to death with the abetment of Abid Hussain Cheema, Hassan Cheema and Sajjad Cheema through hired assassins but there is no mention qua factum of abetment in his statement made before the Court. Apart from above improvements, there are many other contradictions qua the testimony furnished by PW-1 Muhammad Asif. He claimed to be present at the spot though he has admitted that the said Poultry Farm was being run by his brother Ihsanullah (deceased) and he used to remain at the brick kiln which was at a distance of about five fields from the said Poultry Farm. He has not given any reason for his presence at the place of occurrence. According to PW-1 (Muhammad Asif), he took Rizwan and Agha Khan, injured persons, to Village Gojra, by a car and dispatched both of them to hospital by a taxi and then returned to the Poultry Farm. He has further stated that Aslam, who was his clerk at the brick kiln, accompanied the injured to the hospital, whereas, PW-23 Zafar Iqbal Dogar SI, has stated that when he reached at the spot, two injured persons were also present and he, after preparing their injury statements, sent them for their medical examination through Saleem Constable No, 1246. The doctor (PW-14) who medically examined the injured (PW-2) has stated that the said injured was brought by Muhammad Saleem Constable No, 1246. Therefore, the question arises that PW-1, who was taking the injured to the hospital, why left them in the way and came back to the spot. This does not appeal to the common sense. Similarly, if the statement of PW-23 that he sent the injured to the hospital through a constable, is accepted as correct then the presence of PW-1, who has categorically stated that he took the injured by a car to Village Gojra, which is situated at a distance of 6/7 kilometers from the Poultry Farm becomes doubtful. The above improvements and contradictions are of the kind which can not be overlooked and statement of such a witness requires independent corroboration without which no reliance can be placed on the testimony of this type of a witness.
13. So far as testimony furnished by PW-2 Agha Khan is concerned, he claims to be injured eye- witness of the occurrence. The statement of PW-2 Agha Khan was recorded by CW1 Muhammad Riaz ASI under Section 161 Cr.P.C. which is available on the record as Exh.DA., according to which, the said PW-, alongwith four deceased persons and Rizwan @ Pashi(not produced) were present at the Poultry Farm of Ihsanullah when five assailants armed with firearms came there on a white colour car, three of them alighted from the said car and made straight firing on them as a result whereof four persons died while he (PW-2) and the said Rizwan received injuries, two accused remained in the car during the occurrence. We have noted that, name of the PW-1 Muhammad Asif does not find mention in the said statement in any context. More so, except name of Iqbal accused, the said PW- did not nominate any other accused. However, during the examination-in-chief, he nominated three accused including the appellant but did not mention; the source of his information as to how he came to know about the whereabouts of these accused persons. The said witness, during cross-examination, was duly confronted with the said statement (Exh.DA) and has admitted that the appellant was 'Sala' of Iqbal, so, the question arises if he knew the relationship of Iqbal with the appellant then why the appellant was not named by him in his statement recorded under Section 161 Cr.P.C. . Generally speaking, statements of the witnesses are almost in line with the contents of the FIR. But, in this case, the written application (Exh.PA) of the complainant for registration of the FIR, was received by Zafar Iqbal SI (PW-23) who sent the same for registration of the formal FIR (Exh.PA/1), whereas, the statement of the injured (PW2), under Section 161 Cr.P.C., was recorded by Muhammad Riaz ASI (CW1), therefore, it was not in line with contents of the FIR. In the case of MUHAMMAD PERVEZ AND OTHERS VS. THE STATE AND OTHERS (2007 SCMR 670), the Hon'ble Supreme Court was pleased to render testimony of witnesses unworthy of credence who made dishonest improvements. At page 681, it was observed as under:-- " It is pertinent to mention here that statement of eye- witnesses was not in consonance with each other. There are material contradictions and improvements in their statements which were not noted by the learned Federal Shariat Court in its true perspective. It is a settled law that person making contradictions and improvements cannot be held worthy of credence. See Muhammad Shafique Ahmad's case (PLD 1981 SC 472), Roshin 's case (PLD 1977 SC 557) and Shahbaz Khan Jakhrani 's case (1984 SCMR 42)... It is also settled law that injuries on a PW- only indication of his presence at the spot but is not informative proye of his credibility and truth." In this regard, further reference can be given to the case of MEHMr OD AHMAD AND 2 others vs. STATE (PLJ 1995 SC 1), wherein, at page 7, the August Supreme Court of Pakistan, regarding an injured witness, has been pleased to hold as under:-- " For an injured witness whose presence at the occurrence is not disputed it can safely be concluded that he had witnessed the incident. But the facts he narrates are not to be implicitly accepted merely because he is an injured witness. His testimony is to be tested and appraised on the principles applied for appreciation of any other prosecution witness...
In a situation, when the accused was not nominated by the PW during the course of investigation and identified him in Court then such like statement of a witness requires a strong corroboration by way of identification Parade which was not done in this case. In this regard reliance is placed on the case of MUJRSAL KAZMI @ QAMAR AND ANOTHER VS. THE STATE (2009 SCMR 1410), wherein, at page 1415, the Hon'ble Supreme Court of Pakistan, has been pleased to observe as under:-- "8....It is true that the substantive evidence of a witness is his statement in the Court but the purpose of identification test is to test that evidence and the safe rule is that the sworn testimony of witness in Court as to the identify of the accused who were stranger to the witnesses, generally speaking, required corroboration which should be in the form of an earlier identification proceedings. In the instant case PW-2 was not put to any identification test, before his statement before the learned trial Court...
In support of the above view, the learned Apex Court made a reference to the cases reported in Chellppan vs. State of Kerala (AIR 1979 SC 1967), Muhammad Azam vs. State (1997 SCMR 1489), Farman Ali vs. State (1997 SCMR 971) and Asghar Ali @ Subah and others vs. The State and others (1992 SCMR 2088).
14. It is bounden duty of the prosecution to prove its case against the accused beyond any shadow of doubt and if it fails to discharge the said onus then its benefit goes to the accused and, in our view, the prosecution has foiled to discharge the said onus which rested on its shoulders beyond any shadow of doubt. Reliance is placed on SYED SAEED MUHAMMAD SHAH VS. THE STATE (1993 SCMR 550), wherein, at page 580, the Apex Court of the country, has been pleased to observe as under:-- "41. Duty of prosecution to prove its case against accused beyond doubt does not diminish on raising of defence plea. It is not duty of the defence to disprove the case of the prosecution.
Defence plea may be taken, may not be taken and may be sometimes it is not proved. Burden of proof is not upon defence but is always upon prosecution to prove the case beyond doubt......."
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 ease 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)
15. Now we would like to discuss the impact of appellant's abscondence on merits of the case. We have noted that the proceedings conducted by the prosecution declaring him as absconder, were not strictly held in accordance with law. PW-15 Muhammad Anwar has admitted that he did not record statement of any witness in this respect. Even otherwise, abscondence, at the most, can be considered as a corroborative piece of evidence if there is other evidence which inspires confidence and reliable in nature but in the case in hand the ocular account is not free from doubt, therefore, the appellant's abscondence alone, cannot be made basis for maintaining conviction of the appellant. Reference given by the learned counsel for the appellant to the cases of MUHAMMAD FAROOQ AND ANOTHER VS. THE STATE (2006 SCMR 1707), ABDUL KHALIQ 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) is of relevance. In Muhammad Farooq's case (supra), at page 1712, it has been held as under:-- "12. As far as Amjad Javed is concerned, his case is still simpler. Although we have disbelieved that PW-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. See Nazim Khan and 2 others vs. The State (1984 SCMR 1092)."
In Abdul Khaliq's case (supra), at page 1893, it was observed as under:-- The factum of absconsion has also been taken into consideration by the learned High Court which alone is not .sufficient to award conviction under Section 302 PPC as it is just a corroborative piece of evidence...."
In Rehimullah Jan's case (supra), at page 301, it has been observed as under:-- ...it may be stated that mere absconsion is not conclusive proof of guilt of accused person. It is only a suspicious circumstance against an accused that he was found guilty of the offence. However, suspicions after all are suspicions. The same cannot take the place of proof. The value of abscondence, therefore, depends on the facts of each case. The Courts have admitted it as a supporting evidence of the guilt of the accused. The absconsion of the accused may be consistent with the guilt or innocence of the accused, which is to be decided keeping in view overall facts of the case."
16. So far as medical evidence is concerned, if the ocular account does not inspire confidence, the medical evidence is of no avail to the prosecution because it only talks qua the seat of injuries, the manner in which those were caused and the kind of weapon used but do not tell names of the assailants. As far as recovery of rifle .244 bore, from the appellant is concerned, the learned trial Court has rightly discarded the same because there is no report of Forensic Science Laboratory.
17. In the afore-referred circumstances, this Court is of the considered view that the prosecution case is not free from doubts and on its basis, the conviction of the appellant on a capital charge, cannot be maintained as it is settled law that even benefit of a slightest doubt goes to the accused as a matter of right and not as a grace although we are cognizant of the fact that unfortunately in this case four persons lost their lives while two received injuries but simultaneously we are conscious of the fact that an innocent person cannot be hanged.
18. In view of what has been discussed above, this appeal is allowed, the impugned judgment 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 Negiative and sentence of death is not confirmed.