Shahid Hameed Dar, J.--Muhammad Aslam and Shaukat Ali (appellants) have been convicted under Section 302-B P.P.C by the learned Sessions Judge Vehari on the charge of murder of Muhammad Irshad at 7:30 p.m on 20.12.2004. The first named has been sentenced to death, with order to pay Rs, 1,00,000/- as compensation to the legal heirs of the deceased under Section 544-A Cr.P.C. in default thereof to undergo six months S.1 and the second one to imprisonment for life with payment of Rs, 1,00,000/- as compensation to the legal heirs of the deceased under Section 544-A Cr.P.0 and in default thereof to undergo six months S.I. The benefit of Section 382-B Cr.P.0 has been extended to the latter. They have preferred separate appeals and the sentence of Muhammad Aslam is before us for confirmation by way of Murder Reference No, 723 of 2006, transmitted by the learned trial Court under Section 374 Cr.P.C.
2. The case is a simple one. In the evening of 20.12.2004 at about 5:00 p.m Gohar Ali, complainant (PW-6), his son Muhammad Afzal (PW-8), his son-in-law Muhammad Irshad (deceased), his step brother Muhammad Iqbal (PW-7) and his daughter Mst. Zatoon PW (not produced) were chatting with each other at the residential house of the last named lady when, Muhammad Aslarn and Shaukat Ali appellants called Muhammad Irshad (deceased) outside the house who went with them on his motorcycle. He did not return till late night, the complainant and others being worried kept waiting for him. All of a sudden, they heard the report of firing, so they all walked eastwards to a dista.nee of 5/6 acres where they found Irshad lying in a sugarcane field of one Khushi Muhammad, badly wounded, wrangling in pain; they attended him and found bullet injuries on his posterior left shoulder and left upper arm. The injured succumbed to the injuries instantaneously.
3. The bone of contention mentioned in the FIR Exh.PE is that Muhammad Irshad had sold cotton crop for Rs, 33,000/- the very day and this fact was in the knowledge of the appellants who out of greed, deceitfully took him away and brutally murdered him to grab the said amount of money.
4. Gohar Ali complainant (PW-6) appeared before Israr Khalid Inspector/SHO, PW-9 at 8:30 p.m, the same day at Police Station Saddar Vehari and got his statement recorded for registration of FIR No, 507 of 2004, Exh.PE, against the accused under Section 302/34 P.F.C. According to 4th column of FIR the place of occurrence is situated in the revenue limits of Chak No, 192/EB which is at a distance of 14 miles from the police station (Book No, 25).
5. According to the medical evidence, rendered by Dr. Muhammad Nawaz M.0, D.H.Q, Hospital Vehari, PW-1, there are two firearm entry wounds on the dead body of the deceased, one 11 cm below the left shoulder joint posteriorly and the other on lateral part of left upper arm. The margins of both the injuries, according to the postmortem examination report Exh.PA (pictorial diagram Exh.PA/1), bore blackening and tattooing marks, giving rise to impression that it was a close range fire. The left 3rd, 4th and right 3rd, 4th and 5th ribs were fractured, the pleurae were perforated, the upper lobes of right and left lungs were badly crushed and the cavity contained clotted blood.
Corresponding to Injury No, 1 a bullet was recovered by the medical officer, PW-1, from the muscles of upper part of back of left side of chest, between the shoulder joint and the neck. Both the injuries were ante-mortem and caused by firearm. The probable time elapsed between injury and death was immediate and between death and postmortem examination within 6 to 12 hours. The damage to the above said vital organs caused irreversible shock and hemorrhage leading to the death of the deceased.
The prosecution case is a blend of the statements rendered by Gohar Ali PW-6 and Muhammad Iqbal PW-7 qua the factum of deceitfully taking away the deceased on the fateful day from his house and the eye witness account rendered by Muhammad Sharif PW-8. All of these PWs and the given up PWs are closely related interse, as well as with the deceased.
6. In their over ambitiousness to show their presence at the abode of the deceased at the crucial hour of summoning of Irshad Ahmad deceased by the appellants, both PW-6 and PW-7 have made dishonest improvements in their testimonies and the most glaring one, being the dying declaration of the deceased. Both of them have deposed about the fact that they drew near the, wincing in pain, deceased who on asking of the PWs replied that the accused Aslam and Shaukat (appellants) had fired at him. They had never raised this contention during the course of investigation in their statements under Section 154 Cr.P.0 and 161 Cr.P.C. The defence confronted them with their previous statements not only on this crucial fact but with the other portions, improved upon by these witnesses during trail. The repercussions of such dishonest improvements would surely dent the veracity of their testimonies. Unlike the proverb that a single swallow cannot make a summer, a witness can be dubbed as untrue and untrustworthy if found lacking in believability even on a single crucial circumstance having been maliciously rendered by such a witness. Gohar Ali PW-6 in his testimony raised divergent contention as to his presence in Chak Ne.
19/EB as he in the first instance adopted the version that he had gone to said Chak to see his daughter Mst. Zatoon Bibi, but, at a later stage, when finding himself short of confidence, he switched onto a new stance that he had gone to the said village, for attending funeral prayer of the sister of one Shafaat Hussain and as the burial of the deceased lady was delayed due to late arrival of some of the relatives so he had to stay in the said Chak. Muhammad Iqbal, PW-7, a resident, in the neighborhood of the leceased, also looked waivered in his testimony while deposing about the calling of the deceased by the appellants at 5:00 p.m on the fateful day and he admitted in his statement that during his presence at the residence of the deceased he on a couple of occasions had visited his own house for some urgency. He could not satisfactorily contend as to for what purpose he repeatedly returned to the house of the deceased. He too improved upon his previous statement, recorded by the Investigation Officer, PW-9 and was duly confronted with it but he could not offer any plausible explanation for having done so. He too showed eagerness to describe about the dying declaration of the deceased which did not find mention in his statement under Section 161 Cr.P.C. The dishonest improvements made by PW-6 and PW-7, surely reflect upon the intrinsic believability of their testimonies. I advantageously rely upon Syed Saeed Muhammad Shah and another Vs. The State (1993 SCMR 550), wherein it has been observed as under:--
27. Secondly, statements of the witnesses in the Court in which improvements are made to strengthen the case of the prosecution are not worthy of reliance. It is held in the case of Amir Zaman Vs. Mehboob and others (1985 SCMR 685) that testimony of witnesses containing. material improvements are not believable. Reference can also he made to the cases of HO Bakhsh V. The State (PLD 1963 Kar. 805), Qairn Din and others V. The State (1971 PCr.LJ 229) and Fazla and another V. The State (PLD 1960 Lah. 373).
None of the above said PWs stated in his testimony that the deceased within his view had accompanied the appellants when they had called him out of the house. Their statements do not inspire confidence thus, have to be brushed aside.
7. Insofar as the eye-witness account presented by Muhammad Sharif PW-8 is concerned his testimony has done no good to the prosecution case and the learned trial Court appears to have believed him with hiccups. He claims to have witnessed the appellants committing the murder of the deceased by firing at him one after the other. He also contends about the dying declaration of the deceased with the words, "I also reached the place of occurrence. At that time the Irshad uttered that Aslam and Shaukat have fired me."
8. A controversy exists as regards to the statement of PW-8 recorded by the 1.0 under Section 161 Cr.P.C. Israr Khalid Inspector/SHO, PW-9 appears to have received the statement of Muhammad Sharif PW-8, on 26.1.2005 during the course of investigation which stands signed and thumb marked by the PW. This statement is delayed by more than one month as regards the date of occurrence and it does not contain any explanation as to the period of taciturnity on the part of the maker of this statement. It has to be deemed as a statement, having lost its relevance for a variety of reasons, firstly on the point of the delay caused in making such statement and secondly, being discrepant to the earlier one as appearing in case diary dated 30.05.2005. The learned trial Court in Paragraphs No, 22 and 23 of the impugned judgment has referred to a number of case diaries so as to resolve the controversy of recording the statement of this witness by the I.0 the prosecution way, but such a practice cannot be approved of. The case diaries can be peeped into by the learned trial Court for moral satisfaction but cannot be relied upon for recording conviction of an accused. The shortcomings of the investigation may be resolved in favour of the accused but under no circumstance, in favour of the prosecution, if the trial record is silent about it. There may be certain circumstances in the investigation going to the favour of an accused but not brought on the judicial record due to some in convincing or malicious reasoning but the Courts, may, on its own, look into such probabilities and resolve the issue in favour of the accused by dilating upon the same without ever quoting the case diaries in the judgment. I am fortified in my view while seeking reliance upon Manzoor Ullah Vs. The State (2002 MLD Lahore 85). The relevant portion of Paragraph No, 9, at page 90 of the above said judgment is reproduced for ready reference:-- "9. In order to ascertain this fact I have looked into the Case Diary and this fact has been found mentioned in the subsequent investigation. Whether the Case Diary can be examined during the hearing of appeal or not, this was the second question. This question finds support from Emperor v.
Lalmia and another 1943 Indian Cases 206, while deciding an appeal the Calcutta High Court held that the Court if can suo motu look into Police Diary and can question witnesses to contradict evidence. This fact is further supported by Ghulam Hussain v. The State (PLD 1974 Karachi 91). So the Case Diary can be consulted not for the purpose of conviction but for ascertaining any fact in favour of the accused person. So it is found in the Case Diary that during the subsequent investigation, defence version was duly examined. I am not impressed by the findings of the Investigating Officer and it has got no evidentiary value and the judgment cannot be based on the opinion of the Investigating Officer. Perusal of the case diary was only to the extent whether the plea raised by the accused was taken by them during the investigation. . . . . "
8. The testimony of Muhammad Sharif PW-8 like the statements of PW-6 and PW-7 is full of contradictions and improbabilities, the intrinsic value whereof has been reduced to nullity by the hesitant and under confidence PWs.
9. The ocular account therefore is held as ludicrous, improbable and unbelievable which is brushed aside.
10. So far as the motive part of the prosecution case is concerned, we straightaway find that it has gone un-established. The contention of PW-6 in this regard could not find any supporting signals both during investigation and the trial. The Investigation Officer, PW-9 plainly admitted that no evidence had been produced before him by the complainant side in respect of the motive part of the prosecution case. The complainant PW-6 and Muhammad Iqbal PW-7 showed no knowledge whatsoever as to when, where, how much and to whom the cotton crop was sold by Muhammad Irshad deceased and where from they got the knowledge that he had sold the bulk of the crop for Rs, 33,000/, The Investigation Officer, PW-9 in his statement admits that no evidence of enmity/ill-will qua the story of motive could be brought on record by the complainant side. The motive part of the prosecution case has gone un-established like the rest of the prosecution case.
The learned trial Court has convicted and sentenced the appellants merely on conjectures and surmises in sheer disregard to the settled principles of dispensation of criminal justice. The benefit of doubt has to be extended to the accused but the impugned judgment shows that all the infirmities of the prosecution case have been resolved in favour of the prosecution in a manner alien to the basic principles of law. The impugned judgment therefore we hold, unsustainable.
11.Resultantly, we accept both the appeals, filed by the appellants Muhammad Aslam and Shaukat Ali, set aside the impugned judgment and acquit the appellants of all the charges against them.
They shall be set at liberty forthwith if not required in connection with any other criminal case.
12.The Murder Reference No, 723 of 2006 is answered in the negative.