1. Sardar Tariq Masood, J.--Muhammad Ashraf appellant along with three others namely Muhammad Nadeem, Muhammad Afzal and Muhammad Asghar was tried by the learned Additional Sessions Judge, Gujranwala in case FIR No, 385/2004 dated 19.10.2004 registered under Section 302/34 PPC at Police Station Eminabad District Gujranwala who vide judgment dated 29.06.2005 while acquitting the aforesaid co-accused convicted the appellant under Section 302(b) PPC and sentenced him to death as Ta'zir and directed him to pay a compensation of Rs,2,00,000/- under Section 544-A Cr.P.C. to the legal heirs of the deceased or in default to further undergo SI for 6 months.
2. The complainant filed Criminal Appeal No, 1383-2005 against acquittal of the aforesaid co- accused of the appellant which was dismissed on 10.11.2005.
3. Whereas, Muhammad Ashraf appellant has filed Crl. Appeal No, 1315 of 2005 against his conviction and sentence whereas, the learned trial Court has sent a reference (M.R. No, 590 of 2005) u/S. 374 Cr.P.C. for confirmation of death sentence of appellant or otherwise. We propose to dispose of both these two matters through this single judgment.
2. The brief facts of the case are that Muhammad Naeem complainant/PW-12 submitted an application Exh. PE to the SHO P.S Aimanabad alleging therein that he was resident of village Harrar and was a cultivator; that on the fateful day he along with his real brother Muhammad Saleem, Saeed Ahmad and other family members were present in the house; that at about 7.30 p.m. accused Muhammad Ashraf(appellant), Muhammad Afzal armed with .12 bore guns, Muhammad Asghar armed .12 bore carbine along with Nadeem empty handed came towards their house in the street; that Asghar accused raised a lalkara that they would teach them a lesson for fight; that on hearing this noise, Saeed Ahmad his brother rushed to the roof and when was still in the stairs, Muhammad Ashraf fired a straight shot at Saeed Ahmad with his gun hitting him on his right arm below the right side of chest whereby, he fell down being seriously injured; that complainant along with Muhammad Saleem followed Muhammad Saeed and saw that Naveed accused was throwing brick bats on the door and the remaining accused were using filthy language; that he along with Muhammad Saleem his brother were about to attend Saeed Ahmad then Muhammad Afzal accused fired a shot which luckily hit none. On hearing the alarm, Asghar Ali and Muhammad Imtiaz PWs along with other villagers were attracted to the spot and rescued them by beseeching the accused, who went away raising lalkaras. They took Saeed Ahmad to Civil Hospital Kamoke, but the medical officer referred him to Mayo Hospital, Lahore who succumbed to the injuries on the way.
4. The motive for the occurrence is a verbal brawl between Saeed Ahmad and the accused persons.
5. But the matter was got patched up and due to this grudge, the accused had committed the said occurrence.
3. After usual investigation, all the accused were found guilty except Nadeem accused who was found innocent and was placed in Column No, 2 of the report under Section 173 Cr. P.C. Accused Nadeem was summoned to face the trial in this case on 15.3.2005. After submission of the challan, copies of the statement and other documents were delivered to the accused and formal charge was framed to which they pleaded not guilty and claimed a trial.
4. The prosecution examined 14 PWs in order to prove its case and also tendered documentary evidence.
6. PW-1 Muhammad Ashraf 1434/C deposed that Moharrar handed over to him a sealed parcel containing .12 bore gun for its onward transmission to the office of the Forensic Science laboratory Lahore which he deposited there on the same day intact.
7. PW.2 Ehsan Ullah 2565-C deposed that on 19.10.2004, Faqir Hussain SI handed over to him the dead body for getting autopsy from Civil Hospital Kamoke; that after doing the needful, the M.O. handed over to him the last worn clothes of the deceased which he produced before the I.O who took the same into possession vide memo. Exh. PA.
8. PW-3 Muhammad Faisal deposed that on 19.10.2004 the Police took into possession blood-stained cotton from the place of occurrence vide memo. Exh. PB attested by him. Similarly, two crime empties from the street were also secured vide memo. Exh.PC attested by him.
9. PW-4 Muhammad Mustafa is the witness of recovery of .12 bore gun P-3 along with live cartridge P- 4 from Ashraf accused attested by him and Shahbaz PW.
10. PW-5 Muhammad Akbar 1076/C deposed that on 28.10.2004 Moharrar Muhammad Rafique handed over to him one sealed parcel containing blood stained cotton for its onward transmission to the office of C.E. Lahore which he deposited in the said office on the same day intact. The same Mqharrir also handed over to him another parcel containing empty on 12.11.2004 for its onward transmission to the office of the FSL Lahore which he deposited in the said office on the same day intact.
11. PW-6 Muhammad Aslam SI recorded the formal FIR Exh. PE/1' on receipt of complaint Exh. PE.
12. PW-7 Muhammad Rafique 1475/HC deposed that on 19/20.10.2004 the I.O. handed over to him a parcel containing blood stained cotton for keeping the same in Malkhana for safe custody along with another parcel of crime empties; that he handed over the said parcels to Akbar constable on 28.10.2004 and 12.11.2004 respectively for . their onward transmission to the relevant office.
13. PW-8 Dr. Syed Zafar Abbas Bukhari on 19.10.2004 medically examined Saeed Ahmad when he was in injured condition and found the following inj uries:--
(i) Multiple small rounded, raged, lacerated wounds each was (1/4) cm x (1/4) cm. on an area of right upper arm, right forearm, total 60 to 70 in numbers, scattered on the area stated above, no blackening or burning seen, skin deep to muscle deep. Advised X-ray right upper arm and right forearm. A.P. and lateral.
(ii) Small multiple rounded, raged, lacerated wounds (1/2)x(1/2) cm. on the area of, front part of right chest, right hypochondrium, right abdomen approximately 60 to 70 in numbers (pallet injuries). No blackening, no burning present.
14. According to the doctor all the injuries were caused by fire arm and duration of injuries was within three hours.
15. PW-9 Saidan Shah 489-C deposed that on 7.2.2005 Faqir Hussain SI handed over to him a sealed parcel said to contain .12 bore gun for keeping the same in police Malkhana for safe custody which he handed over to Muhammad Ashraf 1434/C for its onward transmission to the office of FSL, Lahore.
16. PW-10 Doctor Captain Muhammad Munir Hussain stated that on 19.10.2004 at 10.00 a.m. he conducted the post-mortem examination on the dead body of Saeed Ahmad deceased. Doctor found two multiple fire arm lacerated wounds of entry on his person. After careful external and internal post-mortem examination of the dead body, he was of the - opinion that death in this case was due to injury complex No, 2 which caused haemothorax, hemorrhagic shock leading to cardio pulmonary failure and death. Severe haemotherax was sufficient to cause death in ordinary course of nature. All the injuries were due to fire arm and ante mortem in nature. Probable time that elapsed between injuries and death was about one hour and between death and post- mortem was about three hours. Post mortem report is Exh. PG whereas the diagrams of injuries is Exh. PG/1.
17. PW-11 Muhammad Imtiaz is the eye-witness of the occurrence.
18. PW-12 Muhammad Naeem is the complainant of the case who narrated the prosecution story mentioned in the FIR and supported the same.
19. PW-13 Masood Ahmad Bhatti deposed that he inspected the place of occurrence on 21.10.2004 on the direction of the Police and on pointation of the PWs he took rough notes and prepared scaled site plans Exh. PH and Exh: PH/1 in the scale of one inch equal to twenty feet. He handed over the site plans to the I.O. on 23.10.2004.
20. PW-14 Faqir Hussain SI is the I.O. of the case who conducted the investigation of this case.
5. The appellant was also examined under Section 342 Cr. P.C. and in reply to the Question, "why this case against you and why the PWs have deposed against you he stated as under:-- "I am innocent in this case. The deceased received fire shot from the roof top. The complainant involved me due to suspicion in his mind."
21. Anyhow, the appellant did-not produce any evidence in defense and also did not opt to make statement on oath under, Section 340(2) Cr.P.C.
6. Learned counsel for the appellant in support of this appeal contends that the occular account furnished by PW-11 and PW-12 is not trustworthy because on the basis of the same evidence co- accused of the appellant namely Muhammad. Nadeem, Muhammad Asghar and Muhammad Afzal have been acquitted by the trial Court and according to the learned counsel the appeal against their acquittal i.e: Criminal Appeal No, 1383 of 2005 filed by the complainant has been dismissed in limine by this Court vide order dated 10.11.2005. It is further contended that Afzal co- accused of the appellant (since acquitted) was attributed the role of firing at the deceased which as per statement of PW-12 landed on the front side of the deceased; that the complainant of the case Muhammad Naeem, though levelled the allegation of firing against the appellant in the FIR Exh. PE/1 but while appearing before the Court he did not ascribe any injury to the appellant rather he in unequivocal words deposed that first shot upon the deceased was fired by Asghar co- accused and the second shot was fired by Afzal, whereas, both the said accused have been acquitted of the charge and that the same was version of PW-12 in vernacular record; that the trial Court was not justified in considering the same as a typographical mistake in his judgment as PW- 12 was not re-examined which are to be examined under Section 540 Cr.P.C. As far as PW-11 Namely Muhammad Imtiaz is concerned, learned counsel for the appellant has submitted that the deceased was his first cousin. It is further contended that said PW-12 stated that he was at 10th stair and the deceased was at the last stair when he was fired at; that the shot was fired from the ground level and in such a situation the presence of the witnesses at the spot is doubtful because had the fires been shot in the manner which the PW-11 has described, there was no possibility of any one to escape from the shot as according to the medical evidence the deceased had sustained about 140 pellets injuries. Further contends that no source of light was described during the occurrence and it is not known that what happened prior to the occurrence; that PW-12 stated that motive took place in his absence; that both the witnesses of the occular account have made dishonest improvement to bring their evidence in line with the medical evidence. As per FIR only one shot was fired which was attributed to the appellant but while appearing before the trial Court both of them stated that the deceased received two fire arm injuries and obviously this was done in view of the postmortem examination report which clearly suggests that the deceased received two independent fire shots. Learned counsel further contends that the positive report of the FSL, Lahore can not be read against the accused on the ground that occurrence in this case had taken place on 19.10.2004 when the Investigating Officer inspected the spot and on the same day the blood stained earth was taken into possession which was despatched on 28.10.2010 to the office of the Chemical Examiner but it is not understandable and there is no reason that when both the offices i,e, Chemical Examiner as well as the Forensic Science Laboratory, are situated in Lahore within the same vicinity, then why the crime empties which were taken into possession on the same day were not sent to the office of FSL and the said crime empties were sent on 12.11.2004, after a lapse of two weeks. More so, as per the prosecution case two empties were taken into possession from the spot and as per expert report (Exh.PQ) these two empties matched with the gun (P-3) recovered from the possession of the appellant which makes the case of the prosecution doubtful.
22. Therefore, FSL report is not corroborative with the other evidence i,e, occular account is not confidence inspiring. It is further contended that there is no source of light mentioned in the FIR or in the site plan. It was exactly the same day of October, 2004 as the instant day when the sun sets in at 5.35 p.m. and as such there was a complete darkness at the time of occurrence and in that situation, the identification of the assailants was not possible; that from the evidence of Doctor Syed Zafar Abbas PW-8 it reveals that Saeed Ahmad (deceased) in injured condition was brought by the police and no other relatives of the deceased was with him which negates the ptesence of both eye-witnesses at the time of occurrence.
7. The learned Deputy, Prosecutor General has vehemently opposed this appeal by contending that it was a promptly lodged FIR wherein a specific role has been ascribed to the appellant; that the medical evidence fully supports the occular account; that case of the acquitted accused is distinguishable from the case of the appellant; that report of the FSL is positive, therefore, the prosecution has been able to prove its case against the appellant beyond any shadow of doubt.
23. Lastly, contends that minor discrepancies are natural in such like cases.
8. We have heard learned counsel for the parties and have also gone-through the record minutely with their able assistance.
9. In the FIR it is mentioned that the deceased was ascending stairs and in that situation he received the fire shots. It is apparent from the site plan that if the deceased was ascending the stairs then his back was towards the street. In order to meet this situation, during the trial both the witnesses of the occular account improved their version by stating that the deceased on reaching the last stair saw behind towards the street. Both the witnesses were confronted with their previous statement, where it is not so mentioned. Obviously this improvement was made in order to bring in line the occular account to the medical evidence.
24. 10.We have taken note of the fact that in the FIR only one shot is stated to have fired by the appellant which hit the deceased but while appearing before the Court both the eye-witnesses made improvement that another shot was fired by Afzal co-accused which also hit the deceased, on his front side. Both PW-11 and PW-12 were confronted with their previous statement where it is not recorded. As according to doctor the deceased received two shots hence, both the witnesses of occular account made improvement for the first time during the trial. This improvement on the part of the witnesses for the first time during the trial indicate that their testimony is not above board as the prosecution would like us to consider. The improvements in their statement were made with a view to bring the same in conformity with. the medical evidence and in order to fill up the lacuna which was left while recording FIR and in their statements under Section 161 Cr. P.C. Their conduct in making these improvements have made them absolutely unreliable witnesses who have no respect fol truth and are capable of telling a lie and changing their statement as and when it suited them. It is held in the case of Syed Saeed Muhammad Shah and another Vs. The State (1993 SCM R 550) that: "Statements of the witnesses in the Court in which improvements are made to strengthen the case of the prosecution are not worthy of reliance."
25. It is held in the case Amir Zaman Vs. Mahboob and others (1985. SCMR 685) that : "testimony of witnesses containing material improvement is not. believable."
26. It is held in the case of Sher Dil alias Sher Gul and another Vs. The State (1973 P.Cr. L.J. 802) that: 'Witnesses making improvements and changing version as and when suited.--Held, improvements once found deliberate and dishonest, cast serious doubt on veracity of witnesses and no reliance can, therefore, be place upon them."
27. Reference can also be given to the cases of Aslam Khan Vs. The State (PLJ 1974 Cr. Cases (Lahore)
28. 199) and Shahbaz Khan Jakhrani Vs. Lal Beg Jakhrani and others (1984 SCM R 42).
11. It is held in the case of Farman Ahmad Vs. Muhammad Inayat and others (2007 SCM R 1825) that: "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 jurisprudence that improvements once found deliberate and dishonest cast serious doubt on the veracity of such witnesses."
29. From the above citations it is crystal clear that the witnesses who improved their versions to strengthen their case could not be relied upon. In this case the witnesses had improved their versions for the first time during trial, which cast serious doubt on the veracity of these witnesses and no reliance can be placed upon them due to dishonest improvements.
30. 12.The presence of these two witnesses is also negated from the fact that the injured was firstly medically examined by PW-8 Dr. Syed Zafar Abbas Bokhari at 7.50 p.m. who categorically stated that he was brought by Ihsan Ullah constable. During cross-examination he further confirmed that the injured was brought by the police and no relative was with the injured. On the other hand, it was the version of the complainant that he and Saleem took the injured to the Civil Hospital Kamoke which is clearly negated by the evidence of the Doctor. According to the complaint Exh. PE, the statement of complainant Exh. PE/1 was recorded at Chungi No, 1 Emenabad at 8.35 p.m. but surprisingly at 7.50 p.m. it was the police who brought the injured to the hospital and at that time no relative was accompanying the injured. This fact by itself negates the presence of the complainant and the witnesses. From this fact it also reveals that prior to the registration of the case, the police had conducted a preliminary inquiry as according to the complaint the same was recorded at ,8.35 p.m. whereas the police was available with the injured at 7.50 p.m. in the hospital and it was the police who got him medically examined. If the complainant and the witnesses were available along with the injured then the statement of the complainant must have been recorded in the hospital, when the injured was being medically examined through the police. So this fact also negates the presence of the eye-witnesses at the time of the occurrence.
31. 13.It is the case of the complainant that the appellant and the co-accused were available on the ground floor i,e, in the street whereas the deceased at the time of receiving the fire shot was on the last stair on the upper side and in that situation the appellant and his co-accused Afzal fired shots upon him, The situation of the occurrence narrated by the complainant and other PWs clearly indicates that the deceased was at the higher level than that of the appellant and his co-accused.
32. According to the site-plan he was almost on the roof top of the said house which is about 12 feet higher from the ground floor. According to PW-8 Dr. Syed Zafar Abbas the assailant and the injured were standing at equal footing at the time of infliction of the injures. Likewise, PW-10 also stated that there was possibility that the appellant as well as the victim was standing at equal footing. So, the medical evidence contradicts the occular account according to which the deceased was at higher level than the appellant and his co-accused. There is another circumstance which also belies the occular account as according to PW12 he was at stair No, 10 at the time of occurrence as he was following the deceased. The said point where the complainant and PW Saleem were preset at the time of firing upon the deceased was just at the distance of five feet from the deceased, according to the site plan the complainant and witness Muhammad Saleem were towards the street than the deceased and in that eventuality when almost 140 pellets were received by the deceased, the presence of the witnesses at .the spot becomes doubtful because it was not possible for the witness to escape when the fire shots were made from the side of street.
33. 14.Allegedly this occurrence took place at 7.30 p.m. on 19.10.2004. It was exactly the same day of October, 2004 as the instant day, when the sun sets in at about 5.35 p.m. and as such there was a complete darkness at the time of occurrence. The prosecution had not mentioned any source of light in the FIR. Even the site plan is silent regarding any source of light. In that situation, the identification of the assailants was not possible. So all the above, mentioned circumstances negate the presence of PW-11 and PW-12 at the spot, and their evidence is not confidence inspiring.
34. 15.PW-12 Muhammad Naeem complainant in the FIR had attributed the first fire shot to Muhammad Ashraf but during the trial in his examination-in-chief he categorically stated that Asghar co-accused (since acquitted) fired a shot hitting straight to Saeed Ahmad deceased. He attributed the second shot to Afzal accused (since acquitted) hittingr the deceased. While making his statement in Court he took a complete somersault from the stance taken in the FIR Exh. PE. He was not declared hostile by the prosecution. He was not re-examined by the trial Court under Section 540 Cr. P.C. and the trial Court in his judgment meet that eventuality with a single sentence that it was a typing mistake. We afraid that the learned trial Court has no authority to declare the said lapse in the prosecution case as a typing mistake. Once an evidence is recorded, then according to Section 7-E of Chapter 1 of Volume III of -- the High Courts Rules and Orders, the statement of a witness be read over to him in presence of the accused and corrected if necessary according to the provisions of Section 360 Cr. P.C. According to Section 360 Cr.P.C, if the evidence of each witness taken under Sections 356 and 357 Cr.P.C. is completed, it shall be read over to him in the presence of the accused, if in attendance, or of his pleader, if he appears by pleader, and shall, if necessary, be corrected. Sub-clause (2) of Section 360 Cr.P.C. reveals that if the witness denies the correctness of any part of the evidence when the same is read over to him, the Magistrate or Sessions Judge may, instead of correcting the evidence, make a memorandum thereon of the objection made to it by the witness, and shall add such remarks as he thinks necessary. From these two provisions of law it clearly depicts that the learned trial Court had no authority to declare the said lapse as the type mistaken. Even the prosecution did not apply to the Court for re-examination of the witness i,e, PW-12 especially when this point was argued by the defence before the trial Court.
35. We have also gone through the whole record and even gone through the vernacular record prepared by the trial Court. Even in the vernacular record it is clearly mentioned by PW-12 that first shot was fired by Asghar accused. So, both the record i,e, the English record and the present record confirm that PW-12 while appearing in the Court had categorically attributed the first shot to Asghar co-accused (since acquitted). The trial Court had wrongly declared that said omission was typing mistake. Even otherwise it is the settled principle of law that vernacular record will be preferred upon the English record. So, from the above discussion it is quite clear that complainant/PW-12 during the trial in unequivocal terms alleged the first shot to Asghar co- accused and did not alleged the fire shot to the appellant. This fact casts serious doubt regarding the prosecution case and its benefit cannot be given to the prosecution by observing the same to the result of a typing mistake. The said benefit arising from the prosecution evidence has to be extended to the appellant not as a matter of grace but as a matter of right.
36. So far as the motive part is concerned it is alleged in the FIR that exchange of hot words had taken place between the deceased and the accused party but no detail is mentioned as to why the hot words were exchanged and the quarrel took place. No detail is mentioned that what had, happened prior to the motive occurrence and no evidence was brought on the record to substantiate this piece of evidence.
37. So far recovery of the gun (P-3) and the crime empties from the spot are concerned, the empties were taken into possession on the day of occurrence i,e, on 19.10.2004 and the blood stained earth was also collected from the spot. The parcel of the blood stained earth was despatched to the office of the Chemical Examiner on 28.10.2004. It is not understandable that why the empties were not sent on the same day when both the offices i,e, Office of the Chemical examiner as well as the Forensic Science Laboratory are situated in Lahore and why the empties were withheld. This fact indicates the mala fide on the part of the prosecution as the empties were kept in the Mal Khan till 12.11.2004. The prosecution could not give any explanation why the same were withheld and were not sent along with parcel of the blood stained earth. Faqir Hussain SI/PW-14 while making his examination-in-Chief stated that the empties were sent to the FSL on 13.11.2004. The prosecution could not explain the above mentioned infirmity.
38. Another circumstance also belies the prosecution case as according to the FIR Ashraf appellant fired a solitary shot upon the deceased whereas the second shot was fired by accused Afzal but surprisingly the two empties recovered from the spot were found to have been fired from the gun recovered at the instance of the appellant. The prosecution could not reconcile with the situation as to how both the empties were found to have been fired with the gun recovered at the instance of appellant Ashraf. Even otherwise as we have already discarded the occular account i,e, the substantive piece of evidence, so, the recovery by itself cannot make basis for conviction of the appellant. The recovery is always considered to be a corroborative piece of evidence. It is meant to test the veracity of the occular evidence i,e, the occular account and the recovery, therefore, of them are to be read together and not in isolation. We have already discarded the occular account being doubtful, hence, the recovery of the gun and the report of the FSL cannot be made basis for conviction of the appellant.
39. It was also held in the case of Saifullah vs. The State (1985 SCM R 410) that when there is no eye- witness to be relied upon, then there is nothing which can be corroborated by the recovery. It was also held that since evidence of eye-witness has been excluded the recovery is hardly of any use.
40. In the present case we have also discarded the ocular testimony of the witnesses, as such, there is no substantive piece of evidence, which required to be corroborated through recoveries, thus the recovery in the present case is of no value.
41. For giving benefit of doubt to any accused, it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then accused will be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right. Where evidence creates doubt about the truthfulness of the prosecution story, its benefit has to be given to the accused.
42. Reference can be given to the basic judgment reported as Muhammad Luqman vs The State (PLD 1970 SC 10) and the case cited as Tariq Parvaiz vs The State (1995 SCM R 1345).
16. Consequently, it is a case in which there are so many doubts and benefit of the same always goes in favour of the accused not as a matter of grace but as a matter of right, so while extending the same benefit, we accept Crl. Appeal No, 1315-2005, set aside the conviction and sentence recorded against the appellant by the learned trial Court. He shall be released forthwith from jail, if not required to be detained in any other case. Death sentence is not confirmed. Murder Reference is answered in the Negative.