JUDGMENT MANZOOR AHMAD MALIK, J.---This judgment shall dispose of Criminal Appeal No.1937 of 2005 (Khizyar Hayat v. The State) and Murder Reference No.796 of 2005, sent by the learned trial Court, for confirmation or otherwise, of the sentence of death awarded to the appellant, as both these matters have arisen out of the same judgment dated 25-11-2005 passed by the learned Additional Sessions Judge-I, Bhakkar, whereby, appellant was convicted under section 302(b), P.P.C. And sentenced to death as Tazir with a further direction to pay a compensation of Rs.50,000 (Rupees fifty thousand only) to the legal heirs of the deceased as provided under section 544-A, Cr.P.C. In default whereof to further undergo S.I. For six months: However, benefit of doubt was extended to two co-accused of the appellant. Namely, Shah Jahan and Javaid Iqbal and they were acquitted from the charge.
2. Brief facts of the case, as given by P.W.9 Abdul Rehman's (complainant) in the F.I.R. (Exh.PD/1) are that on the night of 22-5-2005, when the complainant returned home after offering Isha prayer, his son Nasrullah was sleeping on a cot in the courtyard of the Baithak. The complainant went to the house to sleep. On the morning of 22-5-2005, the complainant went to Mosque to say Fajar prayer.
On his return from the mosque, he found his said son missing from the cot. According to the complainant, he was informed by Lumberdar of the village through Chowkidar that the dead body of his son Nasrullah (deceased) was lying near the house of Shah Jahan within the area of Rakh Goharwala. Upon receipt of the said information, the complainant started weeping which attracted Muhammad Ramzan and Imam Bakhsh, who are residents of the same village. They apprised the complainant that on the preceding night at about 10-00 p.m., they were going towards Rakh Goharwala to guard their herd of sheeps/goats and when they crossed the house of Shah Jahan, they heard the voice "Bachao" "Bachao". When they stepped forward, they saw that Shah Jahan, Javaid Iqbal and Khizyar Hayat (appellant), along with an unknown accused, were giving beating after laying him on the ground while Shah Jahan was raising Lalkara that he be not spared and killed. According to them they did not go near due to fear and came to know in the morning that the person, who was being given beating by the above mentioned accused persons, was Nasrullah (deceased). After getting information from them, the complainant went to the said place along with them and found dead body of his son Nasrullah in a naked condition who was only wearing a Bunyan at that time. The motive stated by the complainant in the F.I.R. Was that there was a dispute between his son and Shah Jahan etc. Due to which they killed him. As per complainant, the deceased was having a sum of Rs.10,000 with him at that time which, in his view, were taken away by the accused persons.
3. After completion of investigation, challan was prepared and submitted before the learned trial Court, copies were distributed to the appellant and his co-accused as required under section 265- C of the Code of Criminal Procedure, charge was framed, to which, they pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution produced as many as 12 witnesses during the trial. The appellant, along with his co-accused, were examined under section 342, Cr.P.C. In answer to question "why this case against you and why the P.Ws. Have deposed against you", the appellant stated as under:-- "The case against me and my co-accused is false. So far as the P.Ws. Are concerned, they are not only related to the deceased but are chance witnesses also. Occurrence did not take place as mentioned by the prosecution. Actually deceased was not enjoying the good reputation. On the fateful night he entered in any house of the vicinity with bad- intention due to that reason he was murdered. During those days, some "Wardat" of dacoity took place in that area. According to the prosecution story Rs.10,000 were with the deceased possibility cannot be ruled out that some dacoits tried to snatch the above said rupees from the deceased and he tried to resist in the meanwhile he was murdered. In 1991 a case of sodomy was registered against Abdul Rehman's complainant of this case. Because Abdul Rehman's complainant abducted Khuda Bakhsh son of Beera Ghown by caste of village Kapahi and committed sodomy with him. In the above said mentioned case, I and my co-accused were deadly supporter of above said Khuda Bakhsh and compromise was not effected due to my intervention as well as intervention of my co-accused.
Due to this reason, the complainant had a grudge against me and my co-accused. When the actual culprits were not traced out, Abdul Rehman's complainant booked me and my co-accused in this blind murder case due to above said enmity."
They neither produced any evidence in defence nor opted to depose on Oath as required under section 340(2), Cr.P.C.
However, after conclusion of the trial, the learned trial Court convicted and sentenced the appellant as mentioned above.
5. Learned counsel for the appellant, in support of this appeal, contends that admittedly it was a night time occurrence which was not witnessed by anybody; that the complainant of the case has based his complaint on the statements of P. W.10 Muhammad Ramzan and P.W.11 Imam Bakhsh, as such, he is not the witness of occurrence; that statements of both these witnesses are not worthy of credence which are even otherwise improbable; that P. W.10 Muhammad Ramzan is the first cousin of the deceased and Bhanja of the complainant while P.W.11 Imam Bakhsh is father-in-law of the deceased and both of them have stated that they saw the appellant and his acquitted co- accused while beating a person but they did not go near because of fear and this version of both these witnesses, according to the learned counsel, is not believable; that even they kept mum till the next morning and their statements were recorded after registration of the F.I.R. Which conduct, on their part, is unnatural; that even there is no mention in the statements of both these witnesses that Nasrullah deceased was being given beating by the appellant and his acquitted accused although the deceased was not only known but closely related to them; that the recovery of "Parna"
(P2), which was taken into possession through memo Exh.PB, is of no avail to the prosecution because there is no evidence on the record that anybody saw the appellant or his acquitted co- accused while strangulating the deceased Nasrullah with the said "Parna"; that the motive has not been proved by the prosecution and even the learned trial Court has not believed the same; that as per statements of P.W.1Q. Muhammad Ramzan and P.W.11. Imam Bakhsh, the appellant and his two acquitted co-accused, namely, Shah Jahan and Javaid Iqbal were causing injuries to the deceased but both the said co-accused were acquitted by the learned trial Court and no appeal against their acquittal has either been filed by the State or the complainant; that on the same evidence, the appellant cannot be convicted unless there is a strong corroboration which is not available in this case; that the prosecution has failed to prove its case against the appellant beyond any shadow of doubt and that the appellant is entitled to acquittal.
6. On the other hand, the learned Deputy Prosecutor-General for the State, while vehemently opposing this appeal, contends that the appellant is named in the F.I.R.; that he has been fully implicated in the case by P.W.10 and Muhammad Ramzan P.W.11. Imam Bakhsh; that the P.Ws. Had no enmity with the appellant to falsely depose against him during the trial; that the ocular account in this case is supported by the medical evidence and the evidence of recovery of "Parna"(P2); that, even otherwise, 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 appeal filed by the appellant against his conviction and sentence be dismissed.
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 their able assistance.
8. Occurrence in this case took place between the night of 22/23-5-2005, the matter was reported to the police by P.W.9 Abdul Rehman's (complainant) at about 6-30 a.m. On 23-5-2005, the formal F.I.R. (Exh.PD/1) was registered on 23-5-2005 while the distance between the place of occurrence and the Police Station was about 55 kilometers.
9. P.W.9. Abdul Rehman's is the real father of Nasrullah (deceased) and is also the complainant of the case. Although he is author of the F.I.R. But is not an eyewitness of the occurrence. He has based his complaint on the information provided to him by P.W.10 Muhammad Ramzan and P.W.11 Imam Bakhsh. The motive given in the complaint (Exh. PD) has not been believed by the learned trial Court and even otherwise there is no convincing evidence on the record as far as motive is concerned, so, there is no need to dilate upon the statement of P.W.9 Abdul Rehman's (complainant) which is of no avail to the prosecution.
10. The prosecution, in order to prove the ocular account against the appellant and his two acquitted co-accused, has produced P.W.10 Muhammad Ramzan and P.W.11 Imam Bakhsh. The examination-in-chief by P.W.10. Reads as under:-- "On 22-5-2005 at about 10-00 p.m. I along with Imam Bakhsh P.W. After taking meal were going to guard sheep and goats. When we cross the house of Shah Jahan accused we heard the noise 'Bachao"Bachao'. We went forward to the side and saw Shah Jahan, Javaid Iqbal, Khizar Hayat accused person present in the court and one unknown person who had fallen the one person on the ground and were beating him. Shah Jahan raised Lalkara to not spare him and murdered him.
We did not go near them due to our on fear. In the morning we came to know that Shah Jahan and other had murdered Nasar Ullah deceased. I and Imam Bakhsh told the incident witnessed by us to Abdul Rehman's complainant. The motive for the occurrence was that there was dispute of money between the accused and the deceased". In his examination-in-chief, P.W.11 Imam Bakhsh, has stated as under:-- A "On 22-5-2005, I along with Muhammad Ramzan P.W. After taking meals were going towards sheep and goats at about 10-00 p.m. When we crossed the house of Shah Jahan accused. We heard noise Bachao, Bachao. We went towards that side and saw Shah Jahan, Javaid Iqbal and Khizar Hayat accused persons present in the court and one unknown person had fallen a person on the ground and were beating him, Shah Jahan raised Lalkara that he should not spare and done to death. We due to our on fear did not go near them. Early in the morning we went to our home and came to know that Nasar Ullah deceased was murdered by Shah Jahan and others. I and Muhammad Ramzan told the incident to Abdul Rehman's complainant".
11. It is on the record that these two witnesses are closely related to the deceased because P.W.10 Muhammad Ramzan is the first cousin of the deceased and Bhanja of the complainant while P.W.11 Imam Bakhsh is father-in-law of the deceased Narullah. Both have stated that they saw an unknown person who was being given beating by the appellant and his two co-accused, namely, Shah Jahan and Javaid Iqbal. It is really astonishing that they correctly identified the appellant and his two acquitted co-accused but could not identify the person (Nasrullah deceased) who was being beaten by the appellants and postmortem examination on the body of deceased and found the above mentioned nine injuries on his person but the said his co-accused though the deceased doctor has not mentioned the kind of Nasrullah was their close relative. B weapon with which those injuries were Surprisingly, they did not report the matter caused. Rather, the doctor has admitted in to anybody and kept mum till the next the cross-examination that "the injuries morning. This conduct of both these mentioned in the postmortem report i.e. Witnesses, in our view, is highly unnatural. Bruises abrasion generally to any person.
12. The medical evidence in this case was furnished by P.W.8 Dr. Mehmood Akhtar Tanveer who conducted postmortem examination on the body of Nasrullah deceased on 23-5-2005 at about 11- 30 a.m. He noted following injuries on his person:-- "(1) Abrasion with bruise of 2 x 3 cm at middle part of left chest was on its lateral part. -
(2) Bruise of 2 x 3 cm at lower part of left chest wall on its posterior part.
(3) Abrasion of 4 x 3 cm lumber region.
(4) Cut with lacerated margins on left side of lacer lip measuring 1 cm x 1 cm.
(5) Abrasion of 8 x 2 cm over the left hip bone of lateral side.
(6) Bruise with abrasion at top of left shoulder measuring 5 cm x 8 cm.
(7) Bruise of 3 cm x 2 cm in the middle and upper most part of chest on posterior surface just below the neck.
(8) Upper part of neck especially right side massively bruised all around.
(9) Nose was deshaped and depressed".
Although the doctor has conducted could be the result of dragging", but, we have noted that there is no allegation against the appellant that the deceased was dragged by the appellant or his two acquitted co-accused and then tortured, which factor goes against the prosecution. It is settled law that the medical evidence may confirm the ocular evidence with regard to seat of injury and its duration, nature of injury and kind of weapon used in occurrence but it cannot connect the accused with the commission of the crime, therefore, this piece of evidence is of no avail to the prosecution. In this regard reference is invited to the case Ghulam Mustafa and another v. State 2009 SCM R 916 wherein, at page. 923 the Hon'ble Supreme Court of Pakistan, has been pleased to observe as under:-- "............ However, it is settled law that the medical evidence can only establish the type of weapon used, the seat of injury and the time elapsed between receipt of injury and the medical examination. It can never be a primary source of evidence for the crime itself but is only corroborative of the same.
13. As far as recovery of "Parna" (P2), which was taken into possession vide memo Exh.PB, is concerned; it is not the case of the prosecution that any witness saw the appellant and his acquitted co-accused while strangulating the deceased with the said "Parna". It is ordinary "Chadar" Muhammad Khan Niazi S.-I./S.H.O., who was Investigating Officer .Of the case at the relevant time, appeared before the learned trial Court as P.W.12 and admitted that the cloth in question("Parna" P2) was not blood-stained and was of casual type. Therefore, the recovery of piece of cloth (P2) is of no avail to the prosecution because such like "Parnas" are easily available in the market, so, its plantation on the appellant cannot be ruled out. So far as other articles i.e. Shalwar (P3), Qameez E (P4), Watch (P5), Chain (P6), Wallet (P7), Hunter (P8), two pairs of Chappal (P9/1-2) and P10/1-2), which were taken into possession from the spot by the said Investigating Officer vide memo Exh.PJ, are concerned, these are of no avail to the prosecution because those were not taken into possession either from the appellant or at his instance.
14. Apart from above, two co-accused of the appellant, namely, Shah Jahan and Javaid Iqbal, against whom allegations were that they, along with the appellant, gave beating to Nasrullah deceased after putting, him on the ground while Shah Jahan was also raising Lalkara not to spare the deceased, have already been acquitted by the learned trial Court. No appeal either by the State or the complainant has been filed against their said acquittal. In the circumstances, when the evidence to the extent of two acquitted co-accused has been disbelieved by the learned trial Court it cannot be believed against the appellant F until and unless the same is supported by any other independent corroborative piece of evidence which is very much lacking in this case as we have not been able to find out any such evidence on the record. In this regard reliance is placed on Ghulam Sikandar and another v. Mamrez Khan and others (PLD 1985 SC 11), wherein, 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 hallmark 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 Iftikhar Hussain v. The State 2004 SCM R 1185 at page 1196, 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 v. The State (2000 SCM R 1758)....".
In Akhtar Ali and others v. The State 2008 SCM R 6 at page 12 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 (PLD 1975 SC 588), Sheral alias Sher Muhammad's case (1999 SCM R 697) and Ata Muhammad's case (1995 SCM R 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.LJ 53), Muhammad's case (PLD 1954 FC 84), Sher Bahadur's case (1972 SCM R 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)........ "
In this regard further guidance is sought from the case of Ghulam Mustafa and another v. State 2009 SCM R 916 wherein at page 924, the learned Apex Court of the country, has been pleased to hold as under:-- In our jurisdiction it is by now well-established that the legal maxim falsus in uno falsus in omnibus is not a universal principle to be applied in all criminal cases. However, according to settled case law there are exceptions and if evidence on the record warrants a doubt in the credibility of such witnesses than indeed their testimony regarding another set of co-accused is to be considered with caution and cannot be accepted without strict corroboration from other independent and credible sources. In this connection reference can be made to the case of Muhammad Nawaz v.
State (1969 SCM R 132), Shafoo v. State (1968 SCM R 719) and Allah Ditta v........... State (PLD 2002 SC 52)........... The rule of corroboration came up for consideration in yet another case reported as Rohtas Khan v. The State (2010 SCM R 566), wherein, the Hon'ble Supreme Court of Pakistan, at page 570, has been pleased to observe as under:-- ........ We are conscious of the fact that the rule of corroboration in case of interested witnesses is not an inflexible rule as held in the cases of Niaz v. State (PLD 1960 SC 387), Nazir v. State (PLD 1962 SC 269), Muhammad Ismail v. Khushi Muhammad (PLD 1974 SC 37), Abdul Rashid v. Umid Ali (PLD 1975 SC 227) and Muhammad Ali v. State (1985 SCM R 230). However, in appropriate cases such rule can be dispensed with. In order to bring the case out of the scope of general rule the evidence of interested witness is to be scrutinized very carefully. Firstly, it is to be seen whether the witness is truthful and tested on the touchstone of inherit merit of his statement. Secondly, in the circumstances of case the statement is reasonable, probable or plausible and could be relied upon. If a statement satisfies the above requirements, then the statement ofa worst enemy of the accused can be accepted and relied upon without corroboration. Reference is invited to Haroon v.
State (1995 SCM R 1627) and Muhammad Rafique v. State (1977 SCM R 457)".
15. So far as motive part of the prosecution case is concerned, the learned trial Court has not believed the motive alleged by the prosecution. We have also not found any evidence in support of the said motive, therefore, the same is not proved. In this regard, reference is given to the case of Noor Muhammad v. The State and another (2010 SCM R 97), wherein, at page 101, the Hon'ble 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 SCM R 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 SCM R 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 1976 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".
61. After having looked the prosecution case from all angles we have noted that the case to the extent of the appellant is of doubtful nature and the conviction and sentence of the appellant on the basis of such type of shaky and unreliable evidence, cannot be maintained.
17. 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 v. The State (2009 SCM R 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 SCM R 1345) that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right".
(emphasis supplied)
In Ayub Masih v. The State (PLD 2002 Supreme Court 1048), at page 1056, while Voting a saying of the Holy Prophet (P.B.U.H.) that mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent", and making reference to the maxim, that 'it is better that ten guilty persons be acquitted rather than one innocent person be convicted, the learned Apex Court has been pleased to observe as under:- it.............. It is hardly necessary to reiterate that the prosecution is obliged to prove its case against the accused beyond any reasonable doubt and if it fails to do so the accused is entitled to the benefit of doubt as of right. It is also firmly settled that if there is an element of doubt as to the guilt of the accused the benefit of that doubt must be extended to him. The doubt of course must be reasonable and not imaginary or artificial. The rule of benefit of doubt, which is described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim,'it is better that ten guilty persons be acquitted rather than one innocent person be convicted' In simple words it means that utmost care should be taken by the Court in convicting an accused. It was held in The State v. Mushtaq Ahmad (PLD 1973 SC 418) that this rule is antithesis of haphazard approach or reaching a fitful decision in a case. It will not be out of place to mention here that this rule occupies a pivotal place in the Islamic Law and is enforced rigorously in view of the saying of the Holy Prophet (P.B.U.H.) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent".
(emphasis supplied)
After considering all the circumstances, this Court is of the considered view that the prosecution has failed to prove its case against the appellants beyond any shadow of doubt, therefore, this appeal is allowed, the impugned judgment is set aside and the appellant is acquitted from the charge. 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.