Malik Shahzad Ahmed Khan, J.--This judgment shall dispose of Criminal Appeal No, 99 of 2008, preferred by appellants Matloob Hussain and Riaz Hussain, as well as, Criminal Revision No, 53 of 2008, filed by Jameel Hussain complainant, as both these matters have arisen out of the same judgment dated 08.05.2008, passed by learned Additional Sessions Judge, Haroon Abad, Camp at Fort Abbas, District Bahawalnagar, whereby the appellants Matloob Hussain and Riaz Hussain were convicted and sentenced as under:-- Matloob Hussain.
Under Section 337-F(i) of PPC to one year rigorous imprisonment. as Tazir and to pay Daman Rs, 5,000/- for causing injuries to Jameel Hussain. He was also convicted under Section 337-F(ii) of PPC and sentenced to two years rigorous imprisonment as Tazir and to pay Daman Rs, 5,000/- for causing injuries to Jameel Hussain. He was further convicted under Section 337-F(i) PPC for causing injury to Mst. Nabeela Bibi and sentenced to one year rigorous imprisonment as Tazir and to pay Daman Rs, 5,000/-. The amounts of Daman was directed to be paid to the injured persons.
All the aforementioned sentences were ordered to run concurrently. He was also given the benefit of Section 382-B of Cr.P.C. However, the appellant Matloob Hussain was also acquitted of the charge under Section 302 of PPC.
Riaz Hussain.
Under Section 302-B of PPC to imprisonment for life as `Tazir' for committing Qatl-i-Amd of Munir Hussain (deceased). He was also ordered to pay Rs, 50,000/- (Rupees Fifty Thousand only) as compensation to the legal heirs of the deceased under Section 544-A Cr.P.C. or in default to suffer simple imprisonment for six months. He was given the benefit of Section 382-B of Cr.P.C. The learned trial Court vide the same judgment has acquitted both the appellants under Section 324, 459/460 of PPC, whereas the co-accused Muhammad Ajmal has been acquitted of the charges.
2. Brief facts of the case as disclosed by Jameel Hussain complainant (PW-2) in his written application Exh. PB on the basis whereof formal FIR Exh.PB/1 was chalked out are that on the intervening night of 25/26.05.2006, the complainant Jameel Hussain alongwith his real brother namely Munir Hussain and other family members was sleeping in the Courtyard of his house situated at Chak No, 168/7-R within the area of Police Station Khichiwala, District Bahawalnagar, whereas Muhammad Arshad (given up PW) and Muhammad Iqbal PW-4 were also sleeping in the `baithak' of the said house. At about 2:00 a.m. (night), Jameel Hussain complainant woke up after hearing the noise of foot steps and saw that an unknown person armed with pistol was standing near the cot of his brother Munir Hussain, another person armed with pistol was standing near his cot, whereas a third person armed with pistol was standing at some distance. The accused persons raised `lalkara' that no body should move, otherwise they would kill him. The complainant and his brother Munir Hussain offered resistance, whereupon all the three accused started firing at the complainant party, as a result of which the complainant Jameel Hussain PW-2, his wife Mst.
Nabeela ParVeen PW-3 and his brother Munir. Hussain (deceased) received injuries and fell down.
On the report of the firing and on raising hue and cry of the complainant party, Muhammad Arshad (given up, PW) and Muhammad Iqbal PW-4 attracted to the spot and witnessed the occurrence in the light of the electric bulb. The accused fled away from the spot while resorting to aerial firing.
One of the accused also took alongwith him the registration book of the motorcycle and identity card of Munir Hussain (deceased). The complainant alleged in the FIR that the accused were seen by him and the above mentioned witnesses in the light of electric bulb and they can identify the accused. Munir Hussain succumbed to the injuries at the spot, hence, the above mentioned FIR.
3. After registration of the case, Jameel Hussain complainant on the same night i,e, 26.05.2006 got recorded his supplementary statement, wherein, he nominated Riaz Hussain (appellant), Matloob Hussain (appellant) Ali .Sher, Arshad Ali (since dead) and Muhammad Ajmal co-accused (since acquitted) alongwith three un-known persons in the instant case.
4. The motive for the occurrence was not mentioned in the FIR and was introduced later on.
According to the prosecution case the motive for the occurrence was that there was previous litigation between the complainant and the accused party and due to the said grudge the accused committed the above mentioned offence.
5. The appellant Riaz Hussain was arrested on 25.06.2006 by Muhammad Ashfaq, SI (PW-11). During the course of investigation, on 29.06.2006 the appellant Riaz Hussain allegedly led to the recovery of pistol .30 bore, P-5 and P-6 a magazine containing 05 live bullets which were taken into possession vide recovery memo Exh. PE.
On 27.07.2006 Muhammad Ashfaq, SI (PW-11) got issued warrant of arrest of Matloob Hussain (appellant), Muhammad Amjal, Ali Sher and Muhammad Arshad accused persons. On 30.07.2006 he got issued proclamations against the above named accused persons under Section 87/88 of Cr.P.C.
6. Initially incomplete challan was submitted against Riaz Hussain appellant and Muhammad Ajmal (since acquitted) whereas accused Matloob Hussain and All Sher were proceeded against under Section 512 of Cr.P.C., while, Muhammad Arshad was murdered in a police encounter.
The appellant Matloob Hussain was subsequently granted pre-arrest bail by this Court which was confirmed vide order dated 20.08.2007, whereas, All Sher co-accused was not arrested and was declared a proclaimed offender.
The police submitted challan against the present appellants and their co-accused namely Muhammad Ajmal in the Court.
7. The appellants Riaz Hussain and Matloob Hussain alongwith their co-accused Muhammad Ajmal (since acquitted) were charge sheeted under Sections 459, 460, 302, 324 & 34 of PPC on 25.10.2007, to which they pleaded not guilty and claimed trial.
8. The prosecution in order to prove its case examined as many as 14 PWs. The complainant Jameel Hussain (PW.2), Mst. Nabila Parveen (PW.3) and Muhammad Iqbal (PW.4) furnished ocular account of the occurrence.
Doctor Muhammad Anwar PW-5 on 26.05.2006 conducted the post-mortem examination on the dead body of Munir Hussain (deceased) vide Post-mortem Report Exh.PH and medically examined Jameel Hussain and Mst. Nabila Parveen injured PWs, vide MLR Exh.PF and MLR Exh.PG, respectively.
Manzoor Ahmad, (PW-1), Muhammad Anwar 764/C (PW-7), Muhammad Amin, (PW-9), Muhammad Zafarullah 45/C (PW-10), Muhammad Hanif 466/C (PW-12) and Muhammad Jamil 757/HC (PW13) are the formal witnesses. Muhammad Iqbal (PW-4) is the eye witness of the occurrence, as well as, the witness of recovery of pistol .30 bore P-5 and magazine containing 05 live cartridges from Riaz Hussain appellant which were taken into possession vide recovery memo Exh. PE. Basharat Ali, SI, PW-6, Irshad Ali, SI, PW-8, Muhammad Ashfaq, SI, PW-11 and Muhammad Aslam, SI, PW-14 are the Investigating Officers of this case.
9. The prosecution produced documentary evidence in the shape of memo of possession of clothes of the deceased Exh.PA, application to SHO Exh. PB, FIR Exh.PB/1, memo of possession of opticals and two ball points Exh.PC, memo of possession of blood stained earth Exh.PD, recovery memo of pistol ..30 bore Exh.PE, medical report of Jameel Hussain (PW-2) Exh.PF, injury statement of Jameel Hussain Exh.PF/1, medical report of Mst. Nabila Parveen Exh. PG, injury statement of Mst.
Nabila Parveen Exh. PG/1, post-mortem report Exh,PH, Pictorial sketch Exh.PH/1, Inquest report Exh.PH/2, Injury statement of Munir Hussain deceased Exh. PH/3, recovery memo of pistol ..30 bore from Ajmal Hussain accused (since acquitted) Exh. PI, rough site-plan Exh.PJ, site-plan Exh. PK, report of chemical examiner Exh. PL, Report of Serologist Exh. PL/1, report of Forensic Science Laboratory, regarding pistol of Muhammad Ajmal accused Exh.PM, report of Forensic Science Laboratory about pistol of Riaz Hussain appellant Exh. PICT and report of DPO, Bahawalpur regarding the illegal investigation conducted by Investigating Officer, dated 19.08.2007 Exh. PO.
10. The statements of the appellants Riaz Hussain, Matloob Hussain and their co-accused Muhammad Ajmal (since acquitted) were recorded under Section 342 of Cr.P.C. They refuted the allegations levelled against them and professed their innocence. In answer to the question, why this case against you and why the PWs have deposed against you, the appellants replied as under:-- Riaz Hussain "All the PWs are related interse and are inimical towards me and my co-accused. Complainant party resides in front of my house and very well known to me and my co-accused but they did not nominate us in the FIR. Despite the fact that the case was registered on the written application of the complainant. In-fact unknown dacoits trespassed into the house of the complainant and tried to commit dacoity. Complainant party tried to apprehend the culprits whereupon they made firing upon the complainant party. I and my co-accused had not participated in the occurrence in any manner and had no motive to commit the murder of deceased and to injure the PW. I have been falsely implicated by the complainant and the PWs."
Matloob Hussain.
"I rely upon the statement of my co-accused Riaz Hussain made in response to the same question.
Further more, I have been declared innocent during the police investigation."
11. The appellants did not make statements under Section 340 (2) Cr.P.C. nor they opted to adduce any evidence in their defence.
'12. The learned trial Court vide its impugned judgment dated 08.05.2008 found both the appellants guilty, convicted and sentenced them as mentioned and detailed above, whereas co-accused Muhammad Ajmal was acquitted from the charges.
13.The learned counsel for the appellants, in support of this appeal, has contended that the case was registered on the written application Exh.PB of Jameel Hussain (PW-2) who is a retired police constable and none was named as accused in the FIR Exh.PB/1; that even number of accused persons mentioned in the FIR were three but subsequently while appearing before the learned trial Court, the complainant and other eye-witnesses of the prosecution implicated the appellants and number of accused persons was enhanced from 3 to 4; that no specific role was attributed to any accused in the FIR but while appearing in the Court the prosecution witnesses assigned specific roles to the appellants and their co-accused; that it is on the record that the house of the appellants is situated in front of the house of the accused and in that situation there was no occasion for the complainant for not mentioning the name of the appellants and their co-accused in his written application Exh. PB, which became basis of registration of the case; that stance of the complainant Jameel Hussain, that the written application Exh.PB was drafted by the Duty Police Officer available on the police station at the relevant time is also belied from the statement of Irshad Ali, SI (PW-8) who appeared before the learned trial Court and stated that he received the written application Exh. PB from Jameel Hussain and drafted the formal FIR Exh-.PB/1 without any addition or omission; that the complainant' never moved any application before higher police authorities in respect of omission of the names of accused in his written application by the duty police officer; that in the inquest report the same story was narrated as mentioned in the FIR; that Mst. Nabila Parveen PW-3 was also not a reliable witness because she has also made material improvements in her statement, she was duly confronted with her previous statement and her improvements were brought on the record, therefore, no importance can be given to this witness; that no crime-empty was recovered from the place of occurrence and nothing was recovered from the possession of the appellants; that the prosecution has failed to prove its case against the appellants beyond any shadow of doubt and that the appellants are entitled to clean acquittal.
14.On the other hand, the learned Deputy Prosecutor General assisted by the learned counsel for the complainant has vehemently opposed the contentions of the learned counsel for the appellants on the grounds that the prosecution case was fully established through the evidence of injured eye-witnesses of the occurrence namely Jameel Hussain PW-2 and Mst. Nabila Parveen PW-3; that after registration of the FIR the complainant came to know that his true version was not recorded and then he made supplementary statement and he has not been confronted with his supplementary statement by the learned defence counsel; that statement of Mst. Nabila Parveen (PW-3) who was an injured eye-witness of the occurrence is fully supported by medical evidence; that in her statement Exh. DA she has specifically named the appellants, as well as, their other co- accused and her evidence could not he shattered during the process of cross-examination; that the prosecution case has further been supported by the evidence of Muhammad Iqbal PW-4; that motive was also established against the appellants in this case; that the prosecution proved its case against the appellants beyond the shadow of any doubt, therefore, their appeal may be dismissed. So far as Criminal Revision No, 53 of 2008 is concerned, the learned counsel contends that the sentence of Respondents No, 1 and 2 may kindly be enhanced from imprisonment for life to death penalty because there is no mitigating circumstance in their favour.
15.We have heard the arguments of learned counsel for the parties at length and perused the record minutely with their able assistance.
16.The occurrence in this case took place on the intervening night of 25/26.05.2006, at 02:00 a.m.
(night) in the house of the complainant situated at Chak No, 168/7-R Western, within the area of police station Khichiwala, District Bahawalnagar. The matter was reported to the police on the same night at 2:45 a.m. by the complainant Jameel Hussain (PW-2) who is real brother of Munir Hussain deceased. The prosecution in order to prove its ocular account has produced the complainant Jameel Hussain PW-2, Mst. Nabila Parveen PW-3 and Muhammad Iqbal PW-4. In the written application Exh.PB moved by the complainant Jameel Hussain PW-2, as well as, in the FIR Ex.PB/1, it is the case of the complainant that on the intervening night of occurrence three unknown accused persons who were armed with pistols inflicted fire-arm injuries on his person, as well as, on the person of his brother Munir Hussain (deceased) and his wife Mst. Nabila Parveen PW-3. It was further claimed by the complainant Jameel Hussain PW-2 that he and the other eye- witnesses of the occurrence had seen the unknown accused in the light of electric bulb and they can identify them. The complainant named the appellants and two other co-accused, as well as, three unknown accused in his supplementary statement, which was statedly recorded on the night of occurrence i,e, 26.05.2006: The complainant Munir Hussain PW-2 while appearing before the learned trial Court has admitted during his cross-examination that houses of Maqbool Hussain and Riaz Hussain appellants here situated in front of his house. He has further stated that his son got registered a criminal case against Matloob Hussain and Riaz Hussain appellants in the year 2002.
He has also stated that one Shazia Bibi also got registered a Hadood case against Mudassar Hussain son of Maqbool Hussain appellant in which he (the complainant) supported Mst. Shazia Bibi. He further conceded that a dispute of `Lumberdari' remained pending before the concerned forum and a compromise was effected between the parties in the year 2004.
The perusal of above mentioned part of the statement of the complainant has established that the appellants were living in front of the house of the complainant and they were well known to him but even then their names were not mentioned in the FIR. The complainant has claimed in his written complaint Exh.PB that he and other witnesses of the occurrence had seen the assailants in the light of electric bulb. Had the appellants committed the above mentioned offence, the, complainant must have nominated them in his written application Exh.PB because they were very well known to him. The complainant Jameel Hussain PW-2'in order to cover the above mentioned lacuna in his case made an excuse that the police official on duty did not record the application Exh.PB as narrated by him and when he asked the SHO in this respect, he promised that he would correct the FIR later on but the same was not done. The said excuse of the complainant does not appeal to the mind of a prudent person because the complainant Jameel Hussain PW-2 is admittedly a retired head constable of the police department. The FIR Exh. PB/1 was lodged on the written application Exh.PB moved by him which contains his signature. He has admitted during his cross-examination that he did not move any application before the high ups of the police department that his case has been spoiled by the concerned police official. Irshad Ali, SI (PW-8) appeared before the Court and he stated in his examination-in-chief that on 25.05.2006, the complainant Jameel Hussain produced the application Exh.PB for registration of case on the basis, whereof, he drafted the formal FIR Exh. PB/ 1 without any "omission or deletion". The said witness was produced by the prosecution itself and he was not declared hostile by the prosecution, therefore, the excuse made by the complainant regarding the non-mentioning of the names of the appellants in his written application Exh.PB, as well as in the FIR Exh.PB/1 is hereby discarded and repelled.
17.The prosecution eye-witnesses made dishonest improvements in their previous statements and their statements are also full of contradictions. As mentioned earlier only three unknown accused persons were mentioned in the written application Exh.PB, as well as, in the FIR Exh. PB/1 who participated in the occurrence, whereas the prosecution witnesses while appearing before the learned trial Court, named four accused persons in their statements namely Riaz Hussain appellant, Maqbool Hussain appellant, Ali Sher (since proclaimed offender) and Arshad Ali co- accused (since dead). In the FIR, no specific role was assigned to any of the accused and a general allegation of firing was leveled against three unknown accused, whereas, while appearing before the learned trial Court, the eye-witnesses attributed specific role of making two fire shots to Riaz Hussain appellant, which hit Munir Hussain (deceased) on the back side of his right shoulder, whereas the third fire shot made by Riaz Hussain appellant landed on the back side of the head of Munir Hussain deceased. The eye-witnesses while appearing before the Court have assigned a specific role of making a fire shot to Matloob Hussain appellant, which landed on the right ankle of the complainant Jameel Hussain, whereas, the second fire shot made by him landed on the left calf of the complainant. A joint role of making indiscriminate firing was also leveled against all the above mentioned four accused, which landed on different parts of the body of Munir Hussain deceased. The role of making a fire shot at the left hand of Mst. Nabila Parveen PW-3 was also attributed to Matloob. Hussain appellant. The prosecution eye-witnesses were confronted with their previous statement and their dishonest improvements were duly brought on the record. The relevant part of the cross-examination of the complainant Jameel Hussain PW-2 is reproduced here under:-- "I also had not got recorded that we identified them in the light of electric bulb. Confronted with Exh.PB where it is so recorded. Similarly I had not got recorded in Exh. PB that one of the accused persons took out registration book lying under the pillow, confronted Ex.PB where it is so recorded. I have got recorded in application Exh.PB that accused Matloob Hussain present in Court fired upon me which hit my right ankle, confronted with Ex.PB where it is not so recorded and I also got recorded in this Exh.PB that second fire fired by Matloob Hussain hit my left calf, confronted with Exh.
PB where it is not so recorded. I also got recorded in my application Exh. PB that Riaz Hussain accused fired two successive shots which hit my brother Munir Hussain on his right back side of shoulder, confronted with Exh. PB where it is not so recorded. I also got recorded in application Exh.
PB that .Riaz Hussain accused present in Court fired upon Munir Ahmad which hit on his back side of head, confronted with Exh. PB where it is not so recorded. I also got recorded in Exh. PB that Riaz Hussain, Matloob Hussain alongwith their co-accused Arshad and Sher fired indiscriminately upon Munir Ahmad which hit on different parts of his body, confronted with Exh, PB Where it is not so recorded. I also got recorded in Exh.PB that Matloob Hussain took registration book of motorcycle and key, confronted with Exh.PB where it is not, so recorded. I also got recorded in Exh. PB that Matloob Hussain accused fired upon my wife which hit on her left flank, confronted with Exh. PB where it is not so recorded. It is incorrect that I have made dishonest improvements in my afore mentioned statement in order to strengthen the prosecution case."
Although Mst. Nabila Parveen PW-3 nominated the appellants in her statement recorded before the police but her evidence is also not trustworthy because she also made dishonest improvements in her previous statement. She was confronted with her statement before the police Exh. DE and her dishonest improvements were also brought on the record, which are reproduced here under: "I got recorded in my statement before police that Matloob Hussain accused present in Court fired upon my husband which hit on his right ankle, confronted with Exh. DA where it is not so recorded. I also got recorded in my statement that Matloob Hussain fired second shot which hit my husband on his left leg, confronted with Exh.DA where it is not so recorded. I also got recorded in my statement that Riaz Hussain accused fired which hit on the back of right shoulder of Munir Hussain deceased, confronted with Exh.DA where it is not so recorded. I also made statement before police that Riaz Hussain accused fired third shot which hit on his back of head, confronted with Exh. DA, where it is not so recorded. I also got recorded in my statement before police that Matloob Hussain made another fire which bit on my left flank, confronted with Exh. DA where it is only recorded that I received fire-arm injury on my left flank, name of the accused is not mentioned therein."
Similarly the statement of other eye-witness namely Muhammad Iqbal (PW-4) is also replete with dishonest improvements. The prosecution witnesses made dishonest improvements in their statements. It is by now a well settled law that the Improvements made by a witness on material aspects of the case is not worthy of reliance. Reference in this context, inter-alia, may be made to the case of Muhammad Rafique and others us. The State and others (2010 SCM R 385).
18. So far as the motive part of the prosecution case is concerned, we have noted that no motive was mentioned in the FIR. Although the prosecution witnesses later on introduced the story of motive that there was litigation between the complainant and accused party but the complainant Jameel Hussain (PW-2) has admitted during his cross-examination that a compromise was effected between the parties in the year 2004. The prosecution did not produce any documentary evidence to establish that any litigation was still pending between the parties. Even the learned trial Court disbelieved the motive part of the prosecution case. In view of the above, we are of the view that the prosecution was unable to prove the alleged motive in this case.
19. So far as the evidence of recovery in this case is concerned, it is noted that nothing was recovered from the possession of Matloob Hussain appellant whereas pistol P-5 was allegedly recovered from the possession of Riaz Hussain appellant. The alleged recovery of pistol from the possession of Riaz Hussain appellant is in consequential because the report of Forensic Science Laboratory (Exh.PM) is only to the effect that pistol P-5 is in working order, therefore, there is no independent corroboration of the prosecution case against the appellants.
20.It is argued by the learned counsel for the complainant that the complainant Jameel Hussain PW-2 and Mst. Nabila Parveen (PW.3) sustained injuries during the occurrence and their presence at the time of occurrence cannot be doubted, hence, the prosecution case was fully proved through the evidence of injured eye-witnesses. The said contention of the learned counsel for the complainant is misconceived.
Although Jameel Hussain PW-2 and Mst. Nabila Parveen (PW.3) are injured eye-witnesses, but injuries on their persons do not stamp their evidence with truth. We may refer here the case of Muhammad Peruez and others vs. The State and others (2007 SCM R 670). The Hon'ble Supreme Court of Pakistan at page 681 has held as under: "It is also a settled law that injuries on a P.W. only indication of his presence at the spot but is not informative prove of his credibility and truth. See Said Ahmad's case 1981 SCM R 795".
In view of the above we hold that the statements of injured eyewitnesses Jameel Hussain (PW-2) and Mst. Nabila Parveen (PW.3) requires independent corroboration, which is very much lacking in this case.
21. The learned counsel for the complainant has lastly contended that the appellant Matloob Hussain remained fugitive from law and he was declared a proclaimed offender which also corroborates the prosecution case, against the said appellant, It is by now a well settled law that abscondence, per se, is not a proof of the guilt of an accused, which however can create a suspicion against him, but suspicion, however strong, cannot be the substitute of the proof, which is required to award punishment to an accused. The evidence of abscondence, even if found convincing, would not be sufficient by itself to warrant conviction of accused on a charge of murder. Reference in this context may be made to the cases of Barkat Ali vs. Muhammad Asif and others (2007 SCM R 1812).
22.In the light of above discussion, we hold that the prosecution has failed to prove its case against the appellants beyond the shadow of doubt, therefore, by extending the benefit of doubt, we accept this appeal, and set-aside the conviction and sentence awarded to the appellants namely, Riaz Hussain and Matloob Hussain, and dismiss Criminal Revision No, 53 of 2008, filed by the complainant for enhancement of sentence of the accused. The appellant Riaz Hussain is in jail.
He shall be released forthwith if not required in any other case. Matloob Hussain appellant is on bail, his bail bonds and surety shall stand discharged.
23.However, before parting with the judgment, we may observe here that the observations made in this judgment shall not influence the learned trial Court during the trial of the absconding accused namely Ali Sher and his case shall be decided on its own merits on the basis of the evidence to be adduced during the trial of the said accused.