' SYED IFTIKHAR HUSSAIN SHAH, J.---Azmat Ali and Sher Ali, appellants have filed the above mentioned appeals separately against their conviction vide judgment dated 22-8-2006 passed by learned Additional Sessions Judge, Okara, whereby Azmat Ali (appellant) was convicted under section 302(b), P.P.C. And was sentenced to death for the commission of murder of Muhammad Jafar, deceased with direction to. Pay Rs,1,00,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C; whereas Ali Sher appellant was convicted under section 302(b), P.P.C. And was sentenced to imprisonment for life with direction to pay Rs,1,00,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. Ali Sher convict was also entitled to the benefit of section 382-B, Cr.P.C. Both the appellants have challenged their conviction and sentences before this Court through aforesaid criminal appeals which have been he ard by us along with Murder Reference No, 611 of 2006 sent by the learned trial court under section 374, Cr.P.C. Seeking confirmation of death sentence awarded to Azmat Ali (appellant). We propose to decide all the aforesaid matters together through the present judgment.
2. The brief facts of the prosecution case as narrated in the F.I.R. (Exh.PD) lodged by l3asara complainant (P.W.3), father of Muhammad Jaffar (deceased) are that at about 4-45 a.m. On 16-6- 2005 Muhammad Jafar son of the complainant was taking his cattle from his house to his Dhari.
When he, had gone at a distance of one square from the village, Azmat Ali and Sher Ali (appellants) armed with pistols .30 bore, while Sadiq co-accused, who had hidden themselves on his way to the Dhari and when Muhammad Jafar came in front of them they appeared, Sadiq co- accused raised lalkara that Jafar should not be spared today on which Azmat Ali (appellant) made two successive fires from his pistol hitting on the left buttock and right knee of Muhammad Jafar, while Sher Ali (appellant) made fire from his pistol hitting on the left leg of Jafar, who after receiving injuries fell on the ground. Irshad and Sohna P.Ws., who were also following the deceased for cutting grass, had witnessed the incident. The assailants (appellants) by making aerial firing and extending threats, fled away from the place of occurrence. The complainant and other people of the locality attracted to the place of occurrence on hearing the noise. Muhammad Jafar was taken to Akhtar-abad Hospital for treatment. Where Doctor after giving first aid, referred him to DHQ Hospital, Okara, but on his way to DHQ Hospital, Muhammad Jaffar succumbed to the injuries suffered by him. The motive behind the occurrence was that about one year prior to this incident, Ghulam Ali, son-in-law of the complainant got registered a case against Azmat Ali (appellant) and others and deceased was pursuing the said case and due to said grudge, Azmat Ali and Sher Ali (appellants) had committed the murder of the deceased. The complainant got recorded his statement (Exh.PD) before Jaffar Hussain, S.-I. (P.W.8) and on the .Basis of which formal F.I.R.
(Exh.PF) was registered.
3. The investigation of this case was conducted by Jaffar Hussain, S.I./I.O. (P.W.8). He on receiving wireless information reached G.T. Road near Adda Akhtarabad Hospital, where complainant and some other persons were present with dead body of deceased. He recorded the statement of.
Complainant Basara Exh.PD, inspected the dead body of the deceased, prepared Inquest report Exh.PG and then made an application for conducting the postmortem examination ' of the deceased Exh.PH and dispatched the dead body to the mortuary for post mortem examination of the deceased. Thereafter, he went to the place of occurrence along with complainant, inspected the same, took blood-stained earth into possession vide recovery memo. Exh.PE, prepared the rough site plan of the place of occurrence Exh.PJ. After the postmortem examination of the deceased, Talib Hussain C/544 handed over to him last worn clothes of the deceased i,e, shirt P-1, Chader P-2, which were taken into possession vide recovery memo Exh.PB. On his direction, Umar Farooq Halqa Patwari-draftsman prepared scaled site plans Exh.PA and Exh.PA/1. I.O. Arrested Azmat Ali accused-appellant on 5-7-2005 and obtained his physical remand. During his physical remand, on his pointation he got recovered pistol .30(P-3) and took the same into possession vide recovery memo Ex. PC. After the investigation, J;0. Declared Azmat Ali (appellant) guilty. Sher Alam and Sadiq were found innocent during the investigation and challan against Sher Ali was submitted by placing him in column No,2.
4. Dr. Nazir Hussain A.P. (P.W.9) on 16-6-2005 conducted post mortem examination on the dead body of Muhammad Jafar on of Basara, aged about 50/55 years. It was dead body of middle aged man of strong built Clade in Saleti colour kameez and off white Dhooti, which were blood-stained, whose eyes and mouth were closed. Doctor noted the following injuries.
' Injuries '(1-A) A lacerated wound 3/4 x3/4 cm with inverted margins deep going on the outer side of left iliac area (wound of entry).
(1-B) A lacerated wound 3/4 x 3/4cm with everted margin on the right buttock (wound of exit).
(2-A) A lacerated wound 3/4 x 3/4 cm with inverted blackish margins on the outer side of right knee joint (wound of entry).
(2-B) A lacerated wound 1 x 3/4 cm with everted margins on the inner side of right knee joint (wound of exit).
(3-A) A lacerated wound 3/4 cm x 3/4 deep going with inverted margins on the outer side of upper part of left leg (wound-of entry).
(3-B) A lacerated wound 1 x cm with everted margins on the inner side of upper part of left leg (wound of exit).
' According to the opinion of Doctor, death was caused due to haemorrhage and shock as a result of Injury No,1 which was sufficient in ordinary course of nature to cause death. All the injuries were ante-mortem, and caused by firearm weapons. The probable time between injuries and death was `about one hour and between death and postmortem was about 12-hours.
5. The learned trial court after supplying copies of the documents required under section 265-C, Cr.P.C. To the appellants framed charge under sections 302/34, P.F.C. Against them on 8-12-2005, to which they pleaded not guilty and claimed trial.
6. During the trial the prosecution produced as many as night witnesses in support of its case. The ocular account of the incident was furnished by Basara, father of deceased, complainant (P.W.3) and Sohna, real brother of deceased (P.W.4), while Umar Farooq Patwari, Draftsman (P.W.1) on the pointation of the witnesses had prepared scaled site plan, the medical evidence was furnished by Dr. Nazir Hussain (P.W.9). While investigation was conducted by Jaffar Hussain, S.I./I.O. (P. W.8).. The remaining evidence produced by the prosecution was more or less formal in nature.
7. The appellants in their statements recorded under section 342, Cr.P.C, denied the allegation levelled against them by the prosecution and professed their innocence. However, to a question as to why this case is against them and why the P.Ws. Had deposed against them, Azmat Ali, one of the appellants replied as under:-- "All the P. Ws. Related inter se, Basara P.W. Is real father of deceased and Sohna P.W. Is real brother of deceased. Due to blood relations with the deceased and inimical to me they falsely deposed against me. Bhai Khan P.W. Of F.I.R. Has not deposed against me as he has not supported the prosecution false case because story of prosecution is false one and the complainant has ft4sely implicated me in this case. I am innocent in this case. Ghulam Ali complainant of alleged motive case is my real brother and son-in-law of Basara complainant. My relations with my brother Ghulam Ali are strained due to this reason complainant party involved me falsely in this case.
According to the contents of F.I.R. Basara complainant is not an eye-witness of this case. Bhai Khan P.W. Of F.I.R. Was mentioned falsely by the complainant in F.I.R. As a witness. When Bhai Khan P.W. Did not support the false prosecution story the complainant while making dishonest improvement became an eye-witness of this case falsely..
' In fact, deceased was murdered by some unknown persons during the dark hours of night. This is an unseen murd'r when real culprits were not traced by the complainant party, they being inimical towards me, falsely involved me in; this case. I am innocent in this case. All the eye-witnesses deposed falsely against me due to relations with the deceased and inimical to me.
' Sher Ali (appellant) replied the aforesaid question as under:- "All the P. Ws. Related inter se, Basara P. W. Is real father of deceased and Sohna P.W. Is real brother of deceased. Due to blood relations with the deceased and inimical to me they falsely deposed against me. Bhai Khan P. W. Of F.I.R. Has not supported the prosecution false case of Basara complainant, according to the contents of F.I.R. Was not an eyewitness of this case when Bhai Khan P. W. Of F.I.R. Did not support the false version of prosecution, complainant while making dishonest improvement fictitiously became an eye-witness of this case falsely. I am innocent in this case. In fact; deceased was murdered by some unknown persons during the dark hours of night when real culprits were not traced by the complainant party. They falsely involved me in this case. During whole investigations I found innocent in this case as lot of people from the village appeared before I.Os. And prove my innocence. But during the investigations, complainant of this case did not produce any person from the village including eyewitnesses` of this case. Due to friendly relations with. Azmat accused, Basara, etc. Falsely involved me."
' Iftikhar Bashir CW-1 was examined as Court witness. The appellants have not appeared to make their statements under section 340(2), Cr.P.C. However, they have produced copy of the order sheet of the criminal case titled "State v. Azmat and others" registered vide F.I.R. No,220-2004 under sections 436/427, P,P.C. At Police Station Saddar Renala Khurd, pending in the Court of Sajjad Hussain, Magistrate Section 30, kara, order sheets from 7-9-2004 to 4-7-2006 (Exh.DC).
8. Upon conclusion of the trial the learned trial court after finding the prosecution's case against the appellants to have been proved beyond reasonable doubt convicted and sentenced them as mentioned above. Hence, the present appeals and the connected Murder Reference. "
9. The learned counsel for the appellants has contended that the prosecution has failed to produce any trust worthy and independent witness against the appellants. Both the alleged eye-witnesses of the occurrence are closely related to the deceased. Basara, complainant while appearing as P.W.3 has made dishonest improvements in his statement. In fact, he was not present at the time of occurrence at the place of incident. Sohna P.W.4 who is real brother of the deceased has also made dishonest improvements in his statement while alleging that Basara P.W.3 was present at the time of occurrence and has witnessed the same. There is inordinate delay in lodging the F.I.R.
And occurrence had taken place allegedly at 4-45 a.m, whereas F.I.R. Has been registered at 7-35 a.m. On the same day after due deliberation and consultation. According to the Rapt Exh.CW-1/2, the injured was present at the police station along with complainant at 6-00 a.m, but the F.I.R. Was not got registered at that time and there is nothing in the statement of both the P. Ws. That Jaffar in an injured condition was taken to police station first and then to Akhtarabad Hospital. From where he was referred to DHO, Hospital for treatment. No crime empty was recovered from the place of occurrence. The pistol was allegedly recovered from the appellant Azmat Ali, which was found in working condition but the same is inconsequential as no crime empty was recovered from the spot. Nothing was recovered on the pointation of Sher Ali (appellant). The motive alleged in the F.I.R.
Is against Azmat Ali (appellant) not against Sher Ali (appellant). The prosecution failed to establish .The guilt of both the appellants beyond reasonable doubt, but learned trial Court has convicted both the appellants under section 302(b), P.P.C. Arbitrarily, which is liable to be set aside.
10. Conversely, the learned D.P.-G. Assisted by the leaned counsel for the complainant has opposed both the appeals by contending that both the appellants were nominated accused in the promptly lodged F.I.R. With specific role; that both the eyewitnesses have fully implicated the appellants for firing on the deceased; that the medical evidence is in line with ocular account. The recovery of pistol at the hands of Azmat Ali (appellant) has also fortified the prosecution version. The prosecution has fully established the guilt of appellants beyond any shadow doubt, therefore, the appellants have rightly been convicted and sentenced as mentioned above: The conviction and sentence is liable to be maintained and appeals are liable to be dismissed and Murder Reference is liable to be answered in the affirmative.
11. We have heard the learned counsel for the appellants, learned D.P.-G. And learned counsel for the complainant and gone through the entirerecord- with care and caution.
12. The ocular account was furnished by Basara (P.W.3) and Sohna (P.W.4). Basara while appearing as P.W.3 has deposed that Jaffar deceased was his real son and about 8-months back, he along with son Jaffar (deceased) was taking their cattle to the Dahri and Sohna (P.W.4) was also coming after them. At about 4-45 a.m. When he had gone about one square from the chak, Azmat Ali and Sher Ali (appellants) while armed with pistols .30 bore and Sadiq co-accused who had concealed themselves in the "jawar crop" appeared. Sadiq raised a lalkara that Jaffar should not be spared today on which Azmat Ali (appellant) made fire-shot from his pistol hitting on left buttock of deceased. Azmat again repeated fire hitting on the right knee of the deceased and third fire was made by Sher Ali (appellant) landing on the left shin of the deceased, who in an injured condition fell down on the ground. On raising hue and cry of the complainant, the appellants decamped while firing in the air. The occurrence was witnessed by the complainant, Sohna and Irshad and other people of the, locality. The deceased was shifted to Akhtarabad Hospital for his treatment, from where, he was referred to DHQ Hospital, Okara. When they reached at G.T.Road, Jaffar succumbed to the injuries suffered by him. On receiving information, the police party also came there and his statement Exh.PD was recorded.
13. The motive behind the occurrence is that about one year prior to occurrence of this case, Azmat Ali (appellant) had set on fire the house of Ghulam Ali, son-in-law of the complainant, who got registered a case against the appellant (Azmat) and others. The said case was pursued by the deceased.
14. Sohna P.W.4 has deposed that about 8 months back at about 4.00 a.m. He along with his father Basara, Jaffar, deceased and Irshad were taking their cattle to their land. Azmat Ali and Sher (appellants) while armed with pistols .30 bore respectively had hidden themselves in a jawar crop.
Sadiq co-accused also had come there, who raised a lalkara that a lesson be taught to Muhammad Jafar, deceased for pursuing the case and he should not be spared today upon which Azmat (appellant) made fire-shot on Jaffar, landing on his left buttock and the appellant again repeated fire-shot from his pistol landing on the right knee of deceased, whereas, Sher Ali (appellant) made third fire landing on the left leg of the deceased who in an injured condition fell on the ground. On raising hue and cry by the complainant, the persons from the locality had gathered and appellants decamped by making aerial firing. Muhammad Jaffar (deceased) was taken to Akhtarabad Hospital in a car. Due to precarious condition of said Jaffar, Doctor has referred him to DHQ Hospital, but on his way to DHQ Hospital Okara, he succumbed to the injuries.
15.Both the aforesaid P.Ws. Had made dishonest improvements in thir statements while appearing as P.Ws. 3 and 4. The complaint Exh. PD is silent about the presence of the complainant himself at the time of occurrence. The complainant has not mentioned in the complaint Exh.PD that he was going along with his son Jaffar, while appearing as P.W.3 he has deposed so. He also has not mentioned in his complaint Exh.PD that he was present at the time of occurrence at the place of incident, while appearing as P.W.3 he has deposed so. He has also denied that the complainant received information of incident and arrived at Akhtarabad Hospital and when they were going from Akhtarabad Hospital to Okara, the police met them at G.T. Road at 7-00 a.m.
16.Sohna P.W. 4 has deposed that 8-months back at about 4-45 a.m. (morning) he along with his father Basara, Muhammad Jaffar, deceased and Irshad were taking their cattle to the land, but in his statement he has also made dishonest improvements while narrating that his father was accompanying him towards the place of occurrence. He was confronted with Exh.DA his previous statement, wherein it was not mentioned that Basara P.W.3 also accompanied him towards the place of occurrence. It has been established on record beyond any doubt that the complainant P.W.3 was not present at the place of occurrence at time of occurrence and he made dishonest improvements in his statement in order to show his presence at the place of occurrence. Similarly, P.W.4 Sohna had also made dishonest improvements in his statement while narrating that his father accompanied him to the place of occurrence.
From the above circumstances, it is quite clear that both the witnesses of ocular account i,e, Basara P.W.3 and Sohna P.W.4 have made improvements and alteration in their statements which indicate that their testimony is not above board as the prosecution would like us to consider. Their conduct in making these improvements made by them absolutely unreliable witnesses, who have no respect for truth and are capable of telling a lie and changing their statements as and when it suited them. They made improvements during the trial and in the F.I.R. Or during the investigation, it was not the case of these two witnesses that complainant was present at the spot. Both the witnesses on A this material point, made deliberate and dishonest improvements, which cast serious doubt on their veracity and no reliance can, therefore, be placed upon them. Their credibility becomes doubtful on the well-known principle of Criminal Jurisprudence, that improvements once found deliberate B and dishonest, cast serious doubt on the veracity of such witnesses. One other witness of the ocular account 'namely Irshad was, given up by the prosecution being won over by the accused persons. The said witness is cousin and brother-in-law of the complainant, but he also did not come forward to support the prosecution case. This fact also cast serious doubt upon the prosecution case.
17. Iftikhar Bashir C/485, Moharar of Police Station Saddar has appeared as CW-1, who deposed that on 16-6-2005 he was posted as Moharrar when Muhammad Jaffar came at the police station along with Basara in an injured condition. He was sent to the Hospital for medical treatment through Ali Ikram C-273 and Exh.CW-1/1 bears his signatures. During the cross-examination by the learned counsel for the complainant, he has deposed that he had written Rapt No,39. Exh.CW-1/2.
There was no suggestion from the complainant side that the deceased in injured condition along with his father-complainant had not gone to the Police Station Saddar prior to going to the Akhtarabad Hospital. P.W.3 Basara had denied in his cross-examination that Jaffar in injured condition with his wife went to the police station for taking docket and then went to Akhtarabad Hospital. He has further stated that he met the police party near G.T.Road at about 7-00 a.m. Where his statement was recorded.
18. Sohna P.W.4. In his cross-examination stated that they readied within 20-minutes from chak to Akhtarabad Hospital and at that time Jaffar was alive and in his senses. He had not gone elsewhere from their chak after the occurrence. He has denied that after receiving fire arms, injury, Jaffar himself went to Renala Khurd in an injured condition and got docket for the medical examination and went to the Akhtarabad Hospital thereafter.
19. Iftikhar Bashir CW-1 has categorically stated that Jaffar in an injured condition had come on 16- 6-2005 at police station from where he got docket Exh.CW-1/1 and Rapt CW-1/2 was also recorded by Basara (P.W.3). He was not cross-examined on this point that the deceased was not taken to the police station while in an injured condition. From docket and Rapt No,39, it is crystal clear that the deceased had gone to the police station along with' his father prior to his shifting to Akhtarabad Hospital at 6-00 a.m. The complainant could get his statement/ complaint recorded at police station at that time, but he failed to do so. The complaint (Exh.PD) allegedly was recorded at 7-15 a.m. On the road, which clearly establishes that F.I.R, (Exh.PF) had been recorded after due deliberation and consultation.
20. The recovery of pistol at the hands of Azmat Ali (appellant) does' not advance the case of the prosecution any further as no crime empty was recovered from the place of occurrence. Report of Forensic Science Laboratory that pistol was in working condition, is inconsequential. It is alleged in the F.I.R. That Azmat Ali (appellant) had set at fire the house of Ghulam Ali son-in-law of the complainant and Jaffar deceased of this case was pursuing the case against Azmat Ali (appellant). In this respect copy of F.I.R. Exh.PQ which was recorded on the statement of Ghulam Ali against Azmat Ali (appellant) Jaffar deceased has been shown as eye-witness of the said occurrence. The appellants have also produced copy of proceedings of the said case Exh.DC in order to prove that on none of date of hearing, Jaffar deceased was present in the Court and he had not pursued the said case, therefore, it is not established on record that the aforesaid Jaffar had been pursuing the case of Ghulam Ali against Azmat Ali (appellant). There was no direct enmity between the complainant party and the appellants. Even otherwise, aforesaid Ghulam Ali and Azmat both were real E brothers and closely related to the complainant party. The prosecution has failed to sufficiently establish the motive part of this case.
21. As far as the medical evidence is concerned, suffice it to say that the medical evidence may confirm the ocular evidence with regard to the receipt of the injury, kind of weapon, duration between the injury and the death, but it cannot connect the accused with the commission of the crime. It has been held in the case of "Israr Ali v. The State" (2007 SCM R 525) that medical evidence alone cannot corroborate, as the injury cannot speak of its author and it does not establish the identity of the accused.
22. It is cardinal principle of criminal jurisprudence that a single instance causing a reasonable doubt in the mind of the Court entitles the accused to the benefit of doubt not as a matter of grace but as a matter of right. In this context, we respectfully rely on the case of "Muhammad Akram v.
The State" (2009 SCM R 230), wherein the Hon'ble Supreme Court has held as under:-- "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. "In case of "Muhammad Luqman v. The F .State" (PLD 1970 SC 10), it has been held that a finding of guilt against an accused person cannot be based merely on the high probabilities that may be inferred from evidence in a given case. The finding as regards his guilt should be rested surely and firmly on the evidence produced in the case and the plain inferences of guilt that may irresistibly be drawn from that evidence. Mere conjectures and probabilities cannot take the place of proof. If a case was to be decided merely on high probabilities regarding the existence or non-existence of a fact to prove the guilt of a person, the golden rule of "benefit of doubt" to an accused person, which has been a- dominant feature of the administration of criminal justice in this country with the consistent approval of the Superior Courts, will be reduced to a naught."
23. In view of above discussion, we are of the considered opinion that ocular account furnished by P.Ws. 3 and 4 is full of contradictions. The motive has not been established and recovery of weapon of offence from Azmat. Ali (appellant) is inconsequential. The prosecution has failed to establish the guilt of both the appellants beyond any shadow of doubt, the appeals are accepted. The conviction and sentence awarded by the learned trial Court against both the appellants through impugned judgment dated 22-8-2006 is set aside and they are acquitted of the charge. They are in jail and shall be released forthwith if not required in any other case.
' Consequently, the death sentence awarded to Azmat Ali (appellant), is not confirmed and Murder Reference No,611 of 2006 is answered in negative.