Manzoor Ahmad Malik, J.--This judgment shall dispose of Criminal Appeal No, 671/2005 filed on behalf of appellant Amjad Saeed and Criminal Revision No, 553/2005 filed for enhancement of sentence and amount of compensation awarded by the learned trial Court to appellant as both these matters arise out of the same judgment dated 31.3.2005 passed by the learned Additional Sessions Judge; Gujranwala whereby, appellant was convicted for the murder of Ghulam Murtaza under Sections 302(b)/149 PPC and sentenced to imprisonment for life 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. Benefit of Section 382-B Cr.P.C. was extended to him.
2. Brief facts of the case, as given by PW-11 Khurshid Ahmad (complainant) in the FIR (Exh.PE/1) are that his paternal nephew, namely, Ghulam Mustafa, was murdered by Iftikhar @ Khari, during the previous Ramazan. According to the complainant on the fateful day, he alongwith Muhammad Asghar, Muhammad Siddique, Ghulam Murtaza, Muhammad Nawaz and Muhammad Ali sat in a car as they had to appear before the Court and explained that he alongwith Muhammad Ali were on the front seat, the said Muhammad Ali was driving the car while Ghulam Murtaza, Muhammad Siddique and Muhammad Nawaz were on the rear seat. It has been mentioned by the complainant in the FIR that at about 7.15 a.m., when they reached near Western Octroi Post Mohallah Islampura, Opposite Fatima Manzil, Hafizabad Road, they noticed that from a read colour Hilux Dala, already parked there, Amjad Saeed (appellant) armed with ,223 bore rifle, Ishtiaq Ahmad, Ilyas, Intizar Ahmad armed with fire-arms, Mushtaq Ahmad and three unknown persons, in furtherance of their common intention, alighted from the said dala and came on the road. It has further been mentioned in the FIR that when their car was crossing them, Mushtaq Ahmad raised a Lalkara not to spare any body from the car, upon which, Amjad Saeed (appellant) fired a burst form the back side of the car which hit Ghulam Murtaza on his head. The complainant also stated in the FIR that the remaining accused also made firing with their respective weapons which fires hit Muhammad Nawaz on the left shoulder, back side of right shoulder and back side of neck while-Muhammad Asghar on the back side of chest. As per FIR, the complainant also alleged that due to the said firing, their car stopped whereafter all the accused decamped from the spot while raising Lalkaras.
As per FIR, Muhammad Siddique, Ghulam Murtaza and Muhammad Nawaz succumbed to the injuries at the spot. The motive stated in the FIR was that eleven months prior to the occurrence, Ghulam Mustafa was murdered by Iftikhar @ Khari in which case Amjad Saeed (appellant) and Intizar. Ahmad were the accused of abetment, Muhammad Siddique was complainant, Muhammad Nawaz @ Ghulam Murtaza were the eye-witnesses while the accused persons used to persuade them not to pursue the said case.
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.
Shahid Mehmood SI appeared as CW1.
4. In order to prove its case, prosecution produced as many as 13 witnesses during the trial. The appellant was examined under Section 342 Cr.P.C. He did not opt to depose on Oath as required under Section 340(2) Cr.P.C. but produced certain documents in defence. However, the learned trial Court convicted and sentenced the appellant. as detailed above.
5. Learned counsel for the appellant contends that the appellant have falsely been involved in this case on account of mala fide of the complainant and the local police; that the prosecution evidence is deficient in all respects and as such the prosecution has failed to prove the charge against the appellant beyond any shadow of doubt; that the prosecution has relied on ocular account furnished by PW-2 Muhammad Asghar (injured-PW-) and PW-11 Khurshid Ahmad (complainant); that PW-2, while deposing before the learned trial Court did not name the appellant Amjad Saeed as one of the assailants he was declared hostile by the prosecution and thus was cross-examined by the learned Public Prosecutor but nothing favourable could be brought on record; that the said witness did not utter a single word against the appellant, therefore, his testimony cannot be used for recording conviction of the appellant. In support of the submission he has placed reliance on a judgment from Indian jurisdiction reported as Kathi Odhabhai Bhimabhai and others Vs. State of Gujrat (1993 SCMR 2405).
Learned counsel for the appellant further contends that the only evidence remains in field against the appellant is the statement of PW-11 Khurshid Ahmad (complainant). According to the learned counsel, he is not only interested but is also inimical towards the appellant coupled with the fact that his presence at the spot is not established from the facts and circumstances of the case, for the reasons, firstly, despite indiscriminate firing by seven persons with automatic weapons on the car, he did not receive even a scratch on his person, secondly, he has admitted that he was not a witness in the case fixed for evidence before the Court of learned Additional Sessions Judge where he was alleged going to attend the Court, thirdly, according to the said witness, he dispatched Asghar injured through Muhammad Ali (given up PW-) to the hospital but according to the record the said injured was got examined through Riasat Constable. To support the above contentions he has placed reliance on Muhammad Farooq and anther vs. The State (2006 SCMR 1707).
While advancing his submissions, learned counsel submits that according to PW-11 the Ahmad (complainant), Amjad Saeed appellant fired from the rear of the car of the deceased and a burst so fired by him hit Ghulam Murtaza deceased on the left side of his head whereas PW-5 Dr. Muhammad Akram Sabir found only one entry wound on the dead body of the said deceased which was located on the middle of forehead and its exit was on the left side of the head, so, no injury did exist on the right side, as alleged, therefore, it can be said that ocular account furnished by PW-11 Khurshid Ahmad(complainant), to the extent of the appellant, is belied by the medical evidence. In this regard he has placed reliance on Muhammad Aslam Khan Vs. The State (1999 SCMR 172).
Learned counsel for the appellant, while further advancing his submissions, contends that it is settled law that if the prosecution case is based on the direct evidence and the same is not worthy of credence then its benefit goes in favour of the accused in the form of acquittal; that if the direct evidence is deficient then the conviction cannot be recorded on the basis of supportive/corroborative pieces of evidence i,e, recoveries, motive and medical evidence; that in the instant case nothing was recovered from the appellant as he was found not to be present at the spot during the course of investigation and that motive part of the occurrence looses its relevance as in the cases where both the parties are inimical towards each other, it cuts both ways.
So far as abscondence of the appellant is concerned, learned counsel contends that it alone cannot be made basis for conviction in a criminal case. He has relied on Muhammad Farooq and another Vs. The State (2006 SCMR 1707). Moreover, according to the learned counsel, the procedural formalities, as mandated under the law, were not fulfilled qua declaring the appellant as a Proclaimed Offender as admitted by PW-13 Muhammad Afzal/I.O and PW-6 Shaukat Ali Constable.
Learned counsel for the appellant, while concluding his submissions, submits that in view of the above submissions, the appellant is entitled to acquittal.
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 promptly lodged FIR with detailed narration of events; that both the parties are known to each other and no question of mis-identification or substitution arises; that it is a day light occurrence; that all the deceased of this case were the Prosecution Witnesses in the earlier case registered for the murder of Ghulam Mustafa wherein Iftikhar @ Khari was accused and Proclaimed Offender at the relevant time; that the natural eye-witness account was furnished by the prosecution and despite cross-examination the defence could shake nothing from their testimony; that in such like cases substitution is a rare phenomenon; that the prosecution has proved its case against the appellant beyond any shadow of doubt and that the sentence awarded to the appellant by the learned trial Court be maintained. Learned counsel for the complainant has placed reliance on Qaisar Khan and others Vs. The State and others (2009 SCMR 471) to contend that long abscondence of the appellant is a corroborative piece of evidence against him.
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. Before proceeding with the case, we would like to quote the charge framed against the appellant by the learned trial Court which reads as under:- "That on 23.10.2001 at about 7.15 a.m. in the area of Islampura Chehl Kala within the jurisdiction of PS Qila Didar Singh, Gujranwala, you the above named accused Amjad Saeed alongwith your co- accused, namely, Intizar Ahmad, Ishtiaq Ahmad and Ilyas (since convicted), Mushtaq, Suleman and Akhlaq (since acquitted) and Farooq (since PO) while armed with deadly weapons with common object formed an unlawful assembly to commit the murder of Muhammad Nawaz, Ghulam Murtaza and Siddique and thereby you committed an offence punishable u/S. 148 PPC, which is within the cognizance of this Court.
Secondly, on the same day, time and place, you alongwith your co-accused mentioned above while armed with deadly weapons in prosecution of common object alongwith Farooq (since P0) caused fire-arm injuries to Muhammad Nawaz, as a result of which, he died and thus you all committed an offence of Qatl-e-Amd punishable u/S 302/149 PPC, which is within the cognizance of this Court.
Thirdly, on the same day, time and place, you alongwith your other co-accused mentioned above alongwith Farooq (since PO) while armed with deadly weapons in prosecution of the common of the said unlawful assembly caused fire-arm injuries to Ghulam Murtaza, due to which, he died and thus you committed an offence punishable u/S. 302/149 PPC, which is within the cognizance of this Court.
Fourthly, on the same day time and place, you alongwith your co-accused mentioned above and Farooq (since PO) while armed with deadly weapons in prosecution of the common object of the said unlawful assembly caused fire-arm injuries to Siddique, due to which, he died and thus you committed the offence punishable u/S. 302/149 PPC, which is within the cognizance of this Court.
Fifthly, on the same day, time and place, you alongwith your above mentioned co-accused and Farooq (since PO) while armed with your deadly weapon in prosecution of your common objection attempted to commit the Qatl-e-Amd of Asghar while making firing upon him and as such, you committed an offence punishable u/S. 324/149 PPC which is within the cognizance of this Court.
And I hereby direct that you be tired by this Court under the above said charges".
9. However, we have observed that while convicting the appellant, the learned trial Court only convicted and sentenced him qua the murder of Ghulam Murtaza whereas there is no finding regarding the remaining heads of charges, therefore, it is presumed that the learned trial Court did not convict the appellant on the remaining charges which includes the murders of Muhammad Nawaz and Siddique. So much so, no appeal in this regard against the impugned judgment has been filed either by the State or the complainant.
10.Ocular account in this case was furnished by PW-2 Muhammad Asghar and PW-11 Khurshid Ahmad (complainant). As far as PW-2 is concerned, he has not named the appellant in his statement recorded before the Court. Neither has stated that PW-11 Khurshid Ahmad (complainant) accompanied him. He was declared hostile and was cross-examined by the prosecution. As he has not named the appellant, therefore, no inference can be drawn against the appellant as for as statement of this witness is concerned. In this regard reference can be given to the case of Odhabhai Bhimabhai and others Vs. State of Gujrat (1993 SCMR 2405), wherein, at Page 2408, the Hon'ble Supreme Court of Pakistan has been pleased to observe as under:-- "...PW-2 the other eye-witness was treated hostile. Therefore, the High Court did not place any reliance on his evidence. Under these circumstances, the trial Court held that implicit reliance cannot be placed on the evidence of PW-1 and in the view acquitted the accused. It cannot be said that this new is not reasonable".
11. Now, the only evidence which remains against the appellant is of PW-11 Khurshid Ahmad (complainant). This PW- has admitted during cross-examination that " In the year 1983, Ghulam Mustafa abducted the sister of Amjad Saeed, namely, Farkhanda. Due to abduction of Farkhanda a case was registered against Siddique, Walayat,Mustafa and me. Farkhanda remained as a legally wedded wife of Mustafa in his house for about three years. It is correct that during these three years, both the families alongwith the families of Amjad and Ghulam Mustafa never visited each other " Therefore, it is established that he has enmity with the appellant. Moreover, in the FIR, it has stated the appellant fired a burst from the rear side of the car and bullets hit on the right side of the head of Ghulam Murtaza deceased whereas PW-5 Dr. Muhammad Akram Sabir, who conducted post-mortem examination on the body of deceased Ghulam Murtaza, observed only one fire-arm injury and too on the middle part of forehead of the deceased, therefore, the medical evidence in this case is not exactly in line with the ocular account furnished by the said witness which has created a further doubt in the prosecution case. Apart from above, this witness introduced two more persons by the names of Ikhlaq and Suleman with the similar role of indiscriminate firing. Both of them were acquitted by the learned trial Court in the earlier trial and this factum finds mention in the charge framed against the appellant. In this view of the matter, if evidence of this witness was not believed qua both the above mentioned acquitted co-accused then it cannot be credited with truth qua the present appellant without any strong corroboration. It is settled principle of the criminal administration of justice that in such like situation, where ocular account is disbelieved qua some accused and is going to be believed qua other accused, then strong and independent corroboration is required. Such an independent corroboration is very much lacking in this case. In this regard this Court is fortified with a judgment of the August Supreme Court of Pakistan in Iftikhar Hussain and another Vs. State (PLJ 2004 SC 552), wherein, at Page 563 of the judgment, the Apex Court of country observed 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 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 others versus The State (2000 SCMR 1758) (emphasis supplied)
12.As the most important witness of the case i,e, PW-2 Muhammad Asghar (injured-PW-) has not uttered a single word against the appellant, therefore, on the basis of remaining evidence which is only supportive in nature, conviction of the appellant cannot be maintained. 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 a 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 m 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)
13. So far as question of abscondence of the appellant is concerned, evidence in this regard was furnished by Shaukat Ali Constable No, 2201(PW-6). But perusal of the record shows that this PW- did not associate any respectable from the locality in the proceedings which were conducted against the appellant to declare him absconder. The reports (Exh.PU & PV), prepared by PW-6 Shaukat Ali Constable, were not put to the appellant while recording his statement under Section 342 Cr.P.C. Even otherwise, the evidence of abscondence, in the circumstances of this case, cannot be considered as a corroborative piece of evidence. To fortify our view, reference is given 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). The precedent case-law relied upon by the learned counsel for the complainant is distinguishable on facts as every criminal case is to be decided on the basis of its own facts and circumstances.
14. 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 to maintain conviction awarded by the learned trial Court. Resultantly, this appeal is allowed, the impugned judgment is set-aside and the appellant is acquitted from the charges leveled against him. He is behind the bars and shall be released forthwith if not required to be detained in any other case. For afore-referred reasons, we find no merit in Cr1. Revision No, 553/05 which is hereby dismissed.