' MALIK SHAHZAD AHMAD KHAN, J.---Abdul Razzaq and Haider Ali alias Babar appellants were tried in case F.I.R. No.353 of 2005, dated 31-8-2005, registered at Police Station Mustafabad, District Kasur, in respect of offences under sections, 302/460 of P.P.C. After conclusion of the trial, learned trial Court vide its judgment dated 30-5-2006 has convicted and sentenced the appellants as under:- ' Abdul Razzaq ' Under section 302(b), P.P.C. As Ta'zir to 'Death' on three counts for committing Qatl-e-amd of Muhammad Ali, Nazir Ahmad and Shafaqat Ali deceased.
' Under section 460 of P.P.C. To imprisonment for life on three counts for committing lurking house- trespass into the house of the complainant. He was also directed to pay a fine of Rs.50,000 on three counts or in default to suffer two years' R.I. On three counts.
' The sentence awarded under section 460, P.P.C. Shall nth concurrently and benefit of section 382- B of, Cr.P.C. Was also extended.
' Haider All alias Babar ' Under section 102(b), P.P.C. As Ta'zir to 'Death' on three counts for committing Qatl-e-Amd of Muhammad Ali, Nazir Ahmad and Shafaqat Ali deceased.
' Under section 460 of P.P.C. To 'imprisonment for life on three counts for committing house lurking trespass into the house of the complainant. He was also directed to pay a fine of Rs.50,000 on three counts or, in default to suffer two years' R.I. On three counts.
' The sentence awarded under section 460, P.P.C. Shall run concurrently and benefit of section 382- B of Cr.P.C. Was also extended.
' It is pertinent to mention here that co-accused of the appellants namely, Muhammad Raza was murdered in a police encounter, whereas, co-accused Intizar Ahmad and Muhammad Abbas were declared as proclaimed offenders.
2. Feeling aggrieved, Abdul Razzaq appellant has challenged his convictions and sentences through Criminal Appeal No.970 of 2006, and Haider Ali alias Babar has preferred Criminal Appeal No. 972 of 2006 whereas the learned trial Court has transmitted Murder Reference No. 550 of 2006 for confirmation or otherwise of the Death sentences of Abdul Razzaq and Haider Ali alias Babar appellants. We propose to d4ose of all these matters by this single judgment as these have arisen out of the same judgment dated 30-5-2006 passed by the learned Additional Sessions Judge, Kasur.
3. Brief facts of the case as disclosed by the complainant Sharafat All (P.W.16) in F.I.R. (Exh.PA), are that he along with his father Haji Nazir Ahmad, Muhammad All and Shafaqat brothers and his other family members were sleeping in the courtyard of their house. On the intervening night of 30/31-8- 2005, at about 1-30 a.m. (night), suddenly they heard the din of firing, upon which they woke up and saw that three persons having muffled their faces were grappling with his father Haji Nazir Ahmad, and brothers Muhammad Ali and Shafaqat. Muhammad Ali and Haji Nazir Ahmad caught hold of one of the accused, meanwhile, the other accused started firing, which hit his father and brothers who fell down on the ground after sustaining injuries. His father Haji Nazir Ahmad sustained injuries on his right shoulder and back, and his biother. Muhammad Ali sustained injuries -on his abdomen, whereas, his brother, Shafaqat received injuries on his belly and right side of his chest. In the meantime, womenfolk of the family also woke up. On raising hue and cry the neighbourers were attracted to the spot. Muhammad Ali and Haji Nazir Ahmad succumbed to the injuries at Lahore General Hospital, Lahore, whereas, Shafaqat succumbed to the injuries at. Lahore General Hospital, Lahore after seventeen days. The complainant Sharafat Ali (P.W.16), later on, through his , Supplementary statement (Exh. DB) recorded on the same day i.e., 31-8-2005, added two more unknown accused (the appellants) in this case. According to his statement, at the time of occurrence apart from the above-mentioned three unknown accused, two unknown accused (the appellants) were also present inside the house of occurrence near the stairs. Mst. Najma Bibi (P.W.15) on 31-8-2005, also got her statement recorded under section 161 of Cr.P.C. (Exh.DA) wherein she stated that apart from three above-mentioned unknown accused, two other unknown accused (the appellants) were also present and standing near the stairs of the house at the time of occurrence. No active role was attributed to the said accused (the appellants) in the supplementary statement of the complainant (Exh.DB). Similarly, Mst. Najma Bibi (P.W.15) assigned no active role to the above-mentioned two unknown accused (the appellants) in her statement (Exh.DA). (P.W.18) Ghulam Hussain conducted the investigation of this case. He stated that on 31-8- 2005, on receipt in formation about the occurrence, he along with police officials reached at Lahore General, Hospital, Lahore. Nazir Hussain Opal, Inspector S.H.O., who was present in the hospital handed over him the charge for conducting the investigation of this case. The said Inspector S.H.O.
Also handed over to him' the death certificates of the deceased Muhammad Ali (Exh.PQ) and of Nazir deceased (Exh.PT/1). He also received the dead bodies of the said deceased persons. He prepared the application for postmortem examination on the dead body of deceased Muhammad Ali (Exh.PU). He also prepared Inquest Report (Exh.PV). He then prepared the application (Exh.P.W.) for autopsy on the dead body of Nazir Ahmad and his Inquest Report (Exh.PX). He collected blood- stained earth from the place, where Muhammad Ali (deceased) had fallen after receiving injury through recovery memo (Exh.PD); whereafter, he collected blood-stained earth from the place, where Nazir (deceased) received injury through recovery memo (Exh.PC). He also secured torn shirt (P.5) of black colour belonging to the accused, a diary, empties of .44 bore six in numbers (P.2/1-6), five empties of .30 bore pistol (P.3/1-5), three live bullets of .44 bore (P.4/1-3), vide recovery memo (Exh.PE). He took 'Dhoti' of deceased Muhammad Ali (P.7) vide recovery memo (Exh.PF). He also took into possession the last worn clothes of deceased Nazir vide recovery memo (Exh.PG). On 1-9-2005, he summoned the draftsman, who prepared the scaled site plan of the place of occurrence (Exh.PH/ 1). He submitted two applications (Exh.PZ) and (Exh.PAA) before the M.O. LGH, Lahore, regarding the fitness of the injured Shafaqat to make statement, however, in the meanwhile, he received information that Shafaqat injured succumbed to the injuries at LGH, Lahore, therefore, he took the dead body of Shafaqat deceased into possession and drafted application (Exh.PBB) for autopsy. He prepared the Inquest Report (Exh.PCC), and received the death certificate of deceased Shafaqat (Exh. PDD). On 21-9-2005, the accused Abdul Razzaq and Haider Ali, who were allegedly present at Sarhali road for commission of dacoity, were arrested by the police, and a case F.I.R.
No.377 of 2005 under sections 399/ 402 of P.P.C., was registered against them at Police Station Mustafabad. During the investigation of said case, the appellants allegedly made disclosure regarding their involvement in the instant case. They were sent to Jail. Identification parade was conducted on 28-9-2005 in the jail premises under the supervision of learned Special Magistrate, Kasur, Tariq Karim Khokhar (P.W.17) and the prosecution witnesses namely, Mst. Najma Bibi (P.W.15), Sharafat Ali (P.W.16), Shaukat Ali and Master Sardar Nusrat (given up P.Ws.) allegedly identified the appellants. After identification parade, both the appellants were formally arrested in this case on 21-9-2005. The appellant Abdul Razzaq, on 4-10-2005, allegedly got recovered pistol (P.9) from his house, which was taken into possession vide recovery memo (Exh.PN). The appellant Haider Ali, on 4-10-2005, allegedly made a disclosure regarding rifle 44 bore, and led the police party to his house and got recovered the rifle (P.10), which was taken into possession vide recovery memo (Exh.PO). He (Ghulam Hussain S.I. P.W.18) prepared rough site plan (Exh.P0/1) of the place of recovery (P.1). On 3-10-2005, he moved an application for obtaining non-bailable warrant of arrest of accused Raza, Intiazar and Abbas, (Exh.PHH), which was allowed and he got issued warrants of arrest (Exh.PHH/1), (Exh.PHH/2) and (Exh.PHH/3). On 10-10-2005, he moved an application for obtaining proclamation in respect of the said three accused, which is (Exh.PJJ), whereas, the proclamations are (Exh. PJJ/1), (Ex. RH /2), and (Exh. PJJ/3).
4. After completion of investigation, the challan was submitted before the trial Court. The appellants were charge-sheeted on 26-5-2006, to which, they pleaded not guilty and claimed trial.
The prosecution in order to prove its case examined as many as 18 P.Ws. The complainant Sharafat Ali (P.W.16) and Mst. Najma Bibi (P.W.15) furnished ocular account of the occurrence.
' The medical evidence in this case has been furnished by Dr. Adnan Hakim (P.W.9) who conducted the post mortem examination on 31-8-2005 at 10-30 a.m. On the dead bodies of Muhammad All and Haji Nazir Ahmad deceased. Dr. Zulfiqar Ahmad (P.W.10), on 17-9-2005 at '12:00 noon, also conducted the post mortem examination on the dead body of Shafaqat Ali deceased.
' Abdul Sattar (P.W.12) was the recovery witness' who stated that on 4-10-2005 Abdul Razzaq got recovered .30 bore pistol P-9 vide recovery memo Exh. PN. Similarly on the said date Haider Ali alias Babar appellant also got recovered rifle 44 bore P-10 vide memo Exh. PO.
5. The statements of the appellants under section, 342 of Cr.P.C. Were recorded. They refuted the allegations levelled against them and professed their innocence. While answering to a question "Why this case against you and why the P.Ws have deposed against you" they replied as under:-- ' Abdul Razzaq "The P.Ws. Are closely related to each other and to the deceased. They have falsely deposed against me at the instance of police. I have not committed this offence. Raza Saga who had been killed in a police encounter was cousin of Ashfaque lumberdar, who resides at Haveli Malvwayyan Wali, where my residence is also situated. In the previous local bodies elections, Maqsood Bhatti had contested election for the seat of Nazim against Tayyab Shah and we have supported in the said election to Tayyab Shah whereas, Ashfaque lumberdar was supporter of Maqsood Bhatti, who used his car in the elections. I had opened the dera for convincing the campaign for elections with my other friends and family. According to my information, the police had raided at the houses of Ashfaque lumberdar to arrest him, on the next day of the occurrence, Ashfaque lumberdar was not present at home, police took family members of Ashfaque lumberdar and kept them at a secret place for 7/8 days and after about 8 days the police had taken a huge illegal gratification from Ashfaque lumberdar and had released. Ashfaque's relatives as they had grudge with us, they had persuaded the police that we should be involved in this case and police had made us as scapegoat. I am innocent."
' The appellant Haider Ali alias Babar also denied -the allegations of the prosecution levelled against him and claimed his innocence, in his statement recorded under section 342 of Cr.P.C. In answer to the question, why this case against you and why the P.Ws. Have deposed against you, the appellant Haider Ali alias Babar replied as under:-- "The P.Ws. Are closely related to each other and to the deceased. They have falsely deposed against me at the instance of police. I have not committed this offence. Raza Saga who had been killed in a police encounter was cousin of Ashfaque lumberdar, who resides at Haveli Malvwayyan Wali, where my residence is also situated. In the previous local bodies elections, Maqsood Bhatti had contested election for the seat of Nazim against Tayyab Shah and we have supported in the said election to Tayyab Shah whereas, Ashfaque lumberdar was supporter of Maqsood Bhatti, who used his car in the elections. I had opened the dera for convincing the campaign for elections with my other friends and family, According to my information, the police had raided at the houses of Ashfaque lumberdar to arrest him, on the next very day of the occurrence, Ashfaque lumberdar was not present at home, police took family members of Ashfaque lumberdar and kept them at a secret place for 7/8 days and after about 8 days the police had taken a huge illegal gratification from Ashfaque lumberdar and had released Ashfaque's relatives as they had grudge with us, they had persuaded the police that we should be involved in this case and police had made us as scapegoat. I am innocent. In fact I was appearing in supplementary matriculation examination under Roll No.48318. I produce my original Roll No. Slip as Mark A. I also produce my result card Mark B".
6. The appellants opted not to make statements under section 340(2) of Cr.P.C., and both the appellants produced Zulfiqar Ali as (DW-1) and Ghulam Nabi as (DW-2) in their defence.
' The- learned trial Court vide its judgment dated 30-5-2006, found Abdul Razzaq and Haider Ali alias Babar guilty and convicted and sentenced them as mentioned and detailed above.
7. The learned counsel for both the appellants, in support of both these appeals, contends that there is considerable delay in reporting the matter to the police; that as per statement of the complainant Sharafat Ali (P.W.16), this occurrence took place on the intervening night of 30/31-8- 2005, at about 1-30 ,a:m. (night) in his house, when he was present there, whereas, his statement was recorded at 3-15 a.m., while, the distance of Police Station, Mustfabad, from the place of occurrence was hardly two furlongs and this fact shows that the F.I.R. Was not promptly lodged; that in the FIR., it was the case of the complainant that three persons with muffled faces entered in his house and they grappled with his father Hail Nazir Ahmad and brothers Muhammad Ali and Shafaqat and due to grappling, their mufflers were removed and he identified them and it has further been stated by the complainant in his statement before the police that those three persons fired at his father and brothers; that neither any description of the assailants nor the kind of weapons used in the incident, was mentioned in the F.I.R.; that no source of the light was mentioned in the F.I.R.; that in his supplementary statement, the complainant has stated that in fact there were five persons, who entered his house and three grappled with the deceased Haji Nazir Ahmad, Muhammad Ali and Shafaqat, whereas, the remaining two were standing near the stairs, but even in the supplementary statement, no role has been assigned to those two persons, who were allegedly standing near the stairs, and it was also not mentioned that they were carrying any weapons with them; that during the trial, the complainant identified the appellants as those two persons, who were standing near the stairs, and also levelled allegation that they too resorted to firing, which resulted into the death of the deceased persons, namely, Haji Nazir Ahmad (father), Muhammad Ali and Shafaqat (brothers); that the complainant was duly confronted with his previous statement recorded under section 154 of the Code of Criminal Procedure and his supplementary statement (Exh.DB), and these material improvements were brought on the record; that the name of other eyewitness, namely, Mst. Najma Bibi (P.W.15) is not mentioned in the F.I.R.
(Exh.PA), and had she been present at the spot, her name would have been mentioned by the complainant in the F.I.R.; that the Inquest Report of the deceased Shafaqat was prepared on 17-9- 2005, and in the column of "Mukhtasir Halaat Waqiat" (brief history of the case), the fact. Mentioned in the F.I.R. Had been reproduced, wherein it is clearly mentioned that three persons entered the house of the complainant, whereas, it is not mentioned that those were in fact five persons; that although Mst. Najma Bibi (P.W.15) claimed in her Statement recorded by the police (Exh.DA), that five persons were present in the house at the time of incident, but she had not stated that two persons, who were standing near the stairs also resorted to firing, however, while appearing before the Court, she stated so and she was duly confronted with her previous statement and this improvement was also brought on the record; that site plan (Exh.PH) of the place of occurrence was prepared on 2-9-2005 by Muhammad Nasrullah (P.W.8), on the pointation eyewitnesses, and in the said site plan, the firing has been shown only from Point-D, that is the place, where three unknown accused were allegedly standing and where the occurrence was shown to have taken place and no firing has been shown from Points-M and N, where both the appellants were allegedly standing and similarly the empties were also recovered from Point-D and no empty was recovered from Points-M and N; that since no description of the assailants was mentioned in the F.I.R. And similarly the appellants were not identified with any role during the identification parade, therefore, their alleged identification carries no value in the eyes of law. The learned counsel for the appellants further contends that there is conflict between ocular and medical account. As per F.I.R., the complainant has stated that his father Haji Nazir Ahmad (deceased) received injuries on his right shoulder and on the back, whereas, as per post-mortem report, there is only one fire-arm injury on the person of Haji Nazir Ahmad (deceased) i.e. On the buttock and made an exit from the shoulder of the deceased; that in the F.I.R., it is the case of the complainant that Shafaqat (deceased) received injuries on his abdomen, upper part of his chest, whereas, according to the post-mortem report, there is only one fire-arm injury on the person of Shafaqat (deceased), which is on the abdomen. As far as deceased Muhammad Ali is concerned according to the F.I.R., he received injuries on his abdomen, whereas, according to his post-mortem report, he received injuries on his back; that as far as recovery of fire arm weapons i.e. .30 bore pistol (P.9) allegedly from the possession of Abdul Razzaq appellant and Rifle .44 bore (P.10) allegedly on the pointation of Haider Ali alias Babar appellant and positive report of FSL (Ex.POO) is concerned, the learned counsel for the appellants contends that it is a corroborative piece of evidence and relevant only if the primary evidence inspires confidence and merely on the basis of recovery and positive report of FSL, conviction of the appellants and that too on capital charge cannot sustain; that the appellants were arrested on 6-9-2005, the date when the empties were sent to the FSL and in the record, their arrest has wrongly been shown as 21-9-2005; that even otherwise, the alleged recoveries are against the provisions of section 103 of the Code of Criminal Procedure, as no person from the locality was associated in the recovery proceedings, therefore. Both the above- mentioned appeals may be accepted and the appellants may be acquitted from this case.
8. On the other hand, learned Deputy Prosecutor-General, for the State, assisted by the learned counsel for the complainant, opposes these appeals on the grounds that the witnesses of ocular account have absolutely no enmity to falsely depose against the appellants; that there is no delay in reporting the matter to the police; that two persons died at the spot, whereas, one was seriously injured and the complainant had given first priority to provide medical aid to the said injured, and took him to the hospital, where police recorded his statement at 3-15 a.m. (night) and as such there was no delay in lodging the F.I.R.; that the supplementary statement of the complainant Sharafat Ali (PW.16) was recorded just after one hour of the occurrence and even in the statement of Mst. Najma Bibi (P.W.15). It is clearly mentioned that in fact five persons entered in the house; that the appellants were correctly identified in the identification parade conducted under the supervision of Special Magistrate Tariq Karim Khokhar (P.W.17), by Sharafat Ali (P.W. 16) and Mst.
Najma Bibi (P.W.15); that there is no conflict between the ocular account and medical evidence as it is the case of both the witnesses that three deceased received fire arm injuries, and the minor contradictions regarding location of injuries is not material in such likes cases; that the empties were recovered from the spot on 2-9-2005, and the same were sent to the FSL on 6-9-2005.
Whereas, the appellants were arrested on 21-9-2005, and the report of FSL (Exh.POO) is positive; that there is no violation of the provisions of section 103 of the Code of Criminal Procedure; that the eye-witnesses, who have witnessed the occurrence, have no animus against the appellants, to falsely implicate them in the instant case; that both the eye-witnesses are inmate of the house, where this unfortunate incident took place and, as such, are natural witnesses of the occurrence; that the prosecution proved its case against the appellants beyond the shadow of any doubt, therefore, both these appeals be dismissed.
9. We have heard the arguments of the learned counsel for the parties, and have gone through the evidence available on record with their able assistance.
10. The occurrence in this case as. Per F.I.R. (Exh.PA) took place on the intervening night of 30/31-8- 2005, at 1-30 a.m., inside the house of the complainant, situated at Ward No.2, Mustafa Abad, Kasur.
The matter was reported to the' police by the complainant Sharafat Ali (P.W.16) at 3-15 a.m. (night) at General Hospital, Lahore, and, the formal F.I.R. (Exh.PA) was chalked out on 31-8-2005, at 4-00 a.m. (morning). The distance between the place of occurrence and Police Station, Mustafabad, is two furlongs. The complainant Sharafat Ali (P.W.16) took the injured Haji Nazir Ahmad, Muhammad Ali and Shafaqat to the General Hospital, Lahore, therefore, keeping in view the above-mentioned circumstances, we hold that the F.I.R. Was promptly lodged and there is no delay in lodging the same.
11. The prosecution in order to prove the ocular account has produced Mst. Najma Bibi (P.W.15) and the complainant Sharafat Ali (P.W.16). We have noted that the above-mentioned prosecution witnesses have made improvements in their statements to the extent of involvement of the appellants in this case. The complainant Sharafat Ali (P.W.16) has stated in the F.I.R. (Exh.PA) that three persons, with muffled faces, entered his house and they grappled with his father Haji Nazir Ahmad, and brothers Muhammad Ali and Shafaqat. The role of making fire shots were also attributed to the said three accused. It was also the case of the complainant that during the grappling, the mufflers of the accused were removed, and he identified them. It was further stated by the complainant Sharafat Ali (P.W.16) that the fire shot made by the above-mentioned three accused landed on the right shoulder and back of his father Haji Nazir Ahmad (deceased), on the belly and right side of the chest of his brother Shafaqat (deceased) and on the belly of Muhammad Ali (deceased). The complainant, later on, through- his supplementary statement (Exh.DB) recorded on 31-8-2005 added two more unknown accused (the appellants), in this case. It was alleged by the complainant Sharafat Ali (P.W.16) in his supplementary statement (Exh.DB) and by Mst. Najma Bibi (P.W.I5) in her statement recorded under section 161 of Cr.P.C. (Exh.DA) that apart from three above-mentioned unknown accused, two other unknown accused (the appellants) were also present and standing near the stairs of the house at the time of occurrence. No active role was attributed to the said accused (the A appellants) in the supplementary statement of the complainant (Exh.DB). Similarly, Mst. Najma Bibi (P.W.15) assigned no active role to the above- mentioned two unknown accused (the- appellants) in her statement (Exh.DA). The complainant Sharafat All (P.W.16) and Mst. Najma Bibi (P.W.15) while making their statements' before the learned trial Court made further improvements in their statements qua the role of the appellants and they assigned the role of firing to all, the five accused. The complainant Sharafat Ali (P.W.16) admitted during his cross-examination that in his statement (Exh.PA/1) he had mentioned only three accused, who participated in the occurrence. He has further admitted that in his statement (Exh.PA/1), he had not mentioned the presence of any accused near the stairs of his house and he did not assign any role to the said accused. He claimed that he had also assigned the role of firing to the accused persons (the appellants) who were present near the stairs, in his supplementary statement (Exh. DB), but this fact was not found to be so mentioned when he was confronted with his previous statement (Exh.DB). The relevant paragrapli of his statement is at page-51 of the paper book of Murder Reference, and the same is reproduced hereunder:- "It is correct that I have numbered three accused who participated in the occurrence in my statement Exh.PA/1. It is correct that I have not assigned any role or mentioned the presence of any accused near the stairs in my statement Exh.PA/1. Exh.PA/1 was recorded by the police at Lahore General Hospital. My supplementary statement was recorded at the said hospital, after about one an hour. I have stated in my statement Exh.D.B (supplementary statement) that two accused persons who were present near the stairs also made firing (confronted with Exh,D.B where firing is not mentioned). I have in my both the statements that the accused while making firing ran away via stair cases (confronted with Exh.PA/1 and Exh.DB where it is ,not so recorded). I am matriculate. I have got recorded in Exh.PA/1 that tube-light was on (confronted with Exh.PA/1, where it is not so recorded). However; it is recorded in Exh.D.B".
' The other eye-witness of the occurrence, produced by the prosecution, is Mst. Najma Bibi (P.W.15)
The name of this witness was not mentioned in the F.I.R. (Exh.PA). Though Mst. Najma Bibi (P.W.15) has mentioned the presence of two unknown accused near the stairs of her house in her statement under section 161 of Cr.P.C. (Exh.DA), but this prosecution witness has also improved her version about the role of the appellant while making her statement before the trial Court. The relevant part of her statement is at page-48 of the paper book of Murder Reference, which reads as follows:-- "I have stated in Exh.DA that two persons who were unmuffled were standing near the stairs (confronted with Exh.D.A where words "unmuffled" are not mentioned). I have stated in Exh.D.A that the person who had fallen on the ground when his shirt was torn and lie became free (confronted with Exh.D.A where word "free" is not mentioned). I also got recorded in Exh.D.A that all the five persons started firing (confronted with Exh.D.A were it is recorded that the accused started firing). I have also got recorded in Exh.DA. That the accused persons ran away through the stairs (confronted with Exh.D.A where it is not so recorded)".
' It is evident from the perusal of above-mentioned prosecution evidence that the prosecution witnesses have made material improvements in their statements regarding the presence of the appellants and their role at the time of occurrence. Their presence was not mentioned in the F.I.R.
(Exh.PA), wherein, only three unknown accused were stated to have entered the house of the complainant, whereas, in the supplementary statement of the complainant Sharafat Ali P.W.16 (Exh.DB), and in the statement before the police of Mst. Najma 'Bibi (Exh.DA), it was alleged that five accused persons trespassed into the house of the complainant. In the said statements (Exh.DA and Exh.DB), mere presence of two unknown accused (the appellants) was mentioned near the stairs of the house, and no role whatsoevei-, was attributed to them, whereas, the prosecution witnesses namely, Sharafat Ali (P.W.16) and Mst. Najma Bibi (P.W.15) at the time of making their statements before the trial Court made yet another improvement in their statements and they assigned the role of firing to all the five accused. It was not mentioned by Mst. Najma Bibi (P.W.15) in her statement (Exh.DA) that two unknown accused, who were standing near the stairs; were armed with any weapon, whereas, while appearing in the Court, she alleged that all the five accused resorted to firing at the deceased persons. The Inquest Report (Exh. PCC) of Shafaqat (deceased) was prepared on 17-9-2005, after sixteen days of the registration of the F.I.R. In the column of "Mukhtasir Halaat Waqiat" (brief history of the case), it' was clearly mentioned that three persons entered the house of the complainant, and it is. Nowhere mentioned in it that five persons have taken part in the occurrence.
' The site plan in this case was prepared on 2-9-2005 by Muhammad Nasrullah Draftsman (P.W.8), who has stated that on 1-9-2005, he took rough notes on the ponitation of the complainant, and the prosecution witnesses and thereafter prepared scaled site plan of the place of occurrence (Exh. PH) and (Exh,. PH/1). The site plan (Exh.PH) also indicates that the presence of two unknown accused (the appellants) near the stairs of the house of the complainant has been shown at Point- M and. N, whereas; presence of three unknown accused has been shown at Point-D. It was mentioned in the site plan (Exh. PH) that the .Unknown accused, who were standing at Point-D, made firing and empties were also recovered nearby the Point-D. It was not mentioned in the site plan (Exh.PH) that two unknown accused, who were present near the stairs at Point-M and N, were alleged to have made any firing. No empties were recovered from Point-M and N, which clearly shows that even at the time of preparation of site plan (Exh.PH) on 2-9-2005, which was admittedly prepared on the pointation of the complainant and the prosecution witnesses, no active role was assigned to the unknown accused (the appellants), who were allegedly present near the stairs of the house.
' As discussed earlier, the complainant Sharafat Ali (P.W.16) has mentioned only three accused in his statement (Exh.PA/. 1); whereas, two more accused (the present, appellants) were implicated in this case, through , his supplementary statement (Exh.DB). It is evident from the perusal of above prosecution evidence that the appellants were implicated in the present case, because of the improvement made by the complainant and therefore the other eyewitness Mst. Najma Bibi (P.W.15) also followed the same line and implicated five accused in this case in her statement recorded under section 161 of Cr.P.C. (Exh.DA), The dishonest improvements made by the prosecution witnesses regarding the presence of the appellants at the place of occurrence and about the role played by them, has made the prosecution case qua the appellants highly doubtful.
' The Hon'ble Supreme Court of Pakistan in the case of Akhtar All and others v. The State (2008 SCM R 6), at pagel2 has discussed the evidentiary value of the evidence of a witness, who improves his version in his subsequent statement. The relevant part of the above-mentioned judgment is reproduced hereunder:-- "It is also a settled maxim whin a witness improves his version to strengthen the prosecution case, his improved statement subsequently made cannot be relied upon as the witness has 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 witness. See Hadi Bakhsh's case PLD 1963 Kar. 805".
' Similar view was taken by the Hon'ble Supreme Court of Pakistan in the case of Farman Ahmed v.
Muhammad lnayat and others (2007 SCM R 1825).
12. The learned Deputy Prosecutor-General, for the State, assisted by the learned counsel for the complainant, have insisted that non-mentioning of the presence or role of the appellants in the F.I.R. Is not significant because the supplementary statement (Exh.DB) of the complainant Sharafat Ali (P.W.16) and statement under section 161 of Cr.P.C. (Exh.DA) of Mst. Najma Bibi (P.W.15) were recorded on the same day i.e. 31-8-2005, and the said prosecution witnesses disclosed the presence of two unknown accused (the appellants) in their above-mentioned statements.. It is added that supplementary statement of the complainant Sharafat Ali (P.W.16), which was recorded on the same day is to be considered as part of the F.I.R. (Exh . PA).
' We are afraid, we cannot agree with the above contention of the learned D.P.G., and of the learned counsel for the complainant, because the supplementary statement of the complainant made during police investigation would not be equated with F.I.R. In this respect, we have been fortified by a pronouncement of the Hon'ble Supreme Court of Pakistan in the case of Falak Sher alias Sheru v.
The State (1995 SCM R 1350), wherein, at pages 1355 and 1356, the Hon'ble Supreme Court has been pleased to observe as under:-- "The learned counsel for the State insisted that in supplementary statement recorded by S. -I.
Muhammad Ayub on same day the complainant had disclosed name of the appellant. The supplementary statement of the complainant be read as part of the F.I.R. The contention is devoid of force. It 'nay be observed that F.I.R. Is the document which is entered into 154, Cr.P.C. Book maintained at the police station at the complaint of informant. It brings the law into motion. The police under section 156, Cr. P. C. Starts investigation of the case.
' Any statement or further statement of the first informant recorded during the investigation by police would neither be equated with First Information Report nor read as part of it.
' It is, therefore, established that name of the appellant does not appear in the F.I.R. In respect of the ' statement of complainant Muhammad Yasin recorded before the Court stating that he had named appellant Falak Sher along with three accused in the F.I.R. It may be observed that it is totally belied by the 1.0. Muhammad Ayub. It is an improvement made by the complainant.
Statement of the complainant involving of appellant Falak Sher in the case is obviously false and no reliance can be placed thereon. Because of improvement the other eyewitnesses have also named the appellant in the case. Their evidence in respect of the appellant is also not true. This aspect of case was neither attended to either by the trial Court or the Federal Shariat Court.
' In view of our observations made hereinabove we are inclined to extend benefit of doubt to the appellant, Falak Sher and accept his appeal, set aside his conviction and sentence recorded against him by the Additional Sessions Judge, Faisalabad, on 10-3-1992. He stands acquitted of the charge. He be set at liberty forthwith if not required in any other case".
12. Insofar as the identification of the appellants in this case is concerned, we have noted that no source of light was mentioned in the F.I.R. (Exh.PA). Similarly, no description of the accused, who were allegedly present year the stairs of the house of occurrence was given by Sharafat Ali (P.
W.16) in hi upplementary statement (Exh.DB). M lover, Mst. Najma Bibi (P.W.15) did mention any specific description of the sailants, who were present near the stai of the house. She has given the descution of the assailants by saying that was of nut- brown colour with bulky I sique and was of the age of 30 y s. Regarding remaining accused, she st I that one was of the average height slim body, whereas, the others wen f tall heights. She has not given any specific description like age, colour etc. Or identification marks like mole, scar marks etc. Of the remaining assailants. The prosecution has also placed on record a copy of the report of identification parade (Exh.PS), which was conducted under the supervision of Tariq Karim Khokhar, Special Judicial Magistrate, Kasur (P.W.17). It is manifest from the perusal of said report that role of the accused/appellants was not described by the witnesses at the. Time of identification parade, which is always considered an inherent defect in the prosecution evidence, therefore, such identification parade is not helpful for the prosecution, and the same cannot be relied upon to maintain the conviction of the appellants.
The Special Magistrate Tariq Karim. Khokhar (P.W.17), while conducting the identification parade did not bother to ask the appellants as to whether or not they had any objection about the identification parade. The appellants were arrested in this case on 21-9-2005, whereas, the identification parade was held. On 28-9-2005, i.e. With the delay of seven days, after the arrest of the appellants. This delay creates a lot of doubt regarding the identification parade, because the prosecution witnesses had number of opportunities to see the accused during this period. The Hon'ble Supreme Court of Pakistan in the case of Shafqat Mehmood and others v. The State (2011 SCM R 537), at pages 544 and 545, has discussed the value of the identification parade, which was held with the delay of seven days, and wherein, no role of the accused was described by the witnesses at the time of their identification, in the following terms:-- "It is pertinent to mention here that contents of the F.I.R. Reveal that witnesses had seen the accused for the first time. In such situation identification parade becomes essential which is to be conducted strictly in accordance with law after completing legal requirements. It is also settled principle of law that if accused were not named in the F.I.R. Identification parade becomes necessary. It is also settled principle of law that role of the accused was not described by the witnesses at the time of identification parade which is always considered inherent defect, therefore, such identification parade lost its value, and cannot be relied upon. As mentioned above, the aforesaid witnesses did not mention name and role of the accused in their statements recorded by the Magistrate after identification parade. It is an admitted fact that appellants had taken objection at the time of identification parade that they had already been shown to the witnesses but this objection was not taken into consideration by the courts below. In such circumstances identification parade becomes doubtful and cannot be relied upon. It is an admitted fact that in terms of contents of F.I.R. Witnesses did not . Know the appellants before the occurrence. Identification parade was not held in accordance with law, therefore, identification in court by the witnesses is also of no value. Identification parade was held after a delay of 7 days after the arrest of the accused. This delay creates a lot of doubt regarding the identification parade as the witnesses had various opportunities to see the accused persons".
' Similarly, the Hon'ble Supreme Court of Pakistan in the cases of Bacha Zeb v. The State (2010. SCMR 1189) and Sabir Ali alias Fauji v. The State (2011 SCM R 563) discarded the prosecution evidence regarding the identification parade, wherein no role of the accused was described by the prosecution witnesses at the time of their identification.
' In the light of above stated circumstances, the prosecution evidence J regarding the identification of the appellants does not inspire confidence.
14. In view of the above discussion, we are of the considered view that the prosecution case against the appellants is replete with material improvements and the story of the prosecution qua involvement of the appellants in the case is highly doubtful. Similarly, the prosecution evidence about identification of the appellants is also not believable, therefore, we hold that the prosecution failed to proved its case against the appellants beyond the shadow of doubt.
15. Insofar as the evidence of alleged recovery of pistol (P.9) from Abdul Razzaq appellant and Rifle .44 bore (P.10), from Haider Ali alias Babar appellant, and positive report of FSL (Exh.POO), is concerned, it is by now a well-settled law that evidentiary value of the recovery of the weapon of offence is purely corroboratory in nature and recovery of weapon of offence alone is not capable to bring home the charge against the accused in alisence of direct substantive evidence.
'Conviction cannot be recorded merely on the basis of the evidence of recovery howsoever convincing it may be. After taking out from consideration, the ocular account of the prosecution witnesses and the evidence of identification parade of the accused, we are of the view that the conviction and sentence of the appellants cannot sustain merely on the basis of above-mentioned recoveries. We are guided in this respect by the case of Muhammad Afzal alias Abdullah and others v. The State and others (2009 SCM R 436), wherein, at pages 443 and 444, the Hon'ble Supreme Court of Pakistan has discussed the value of the evidence of recoveries in absence of confidence inspiring direct evidence, in the following terms:--: "After taking out from consideration the ocular evidence, the evidence of identification and the medical evidence, we are left with the evidence of recoveries only, which being purely corroboratory in nature, in our view, alone is not capable to bring home charge against the appellant in the absence of any direct evidence because it is well-settled that unless direct or substantive evidence is available conviction cannot be recorded on the basis of any other type of evidence howsoever, convincing it may be".
' Similar view was taken by the Hon'ble Supreme Court of Pakistan in the cases of Saifullah v. The State (1985 SCM R 410) and Abdul Mateen v. The State and others (PLD 2006 Supreme Court 538).
16. Although the prosecution witnesses have no enmity with the appellants, but absence of enmity of prosecution witnesses with the accused does not mean that whatever they have stated be taken as gospel truth and apostle reality. This Court has to see as to whether the statements of the prosecution witnesses are confidence-inspiring and trustworthy to the extent of role assigned to the appellants. Though the prosecution witnesses have no enmity with the appellants, but their statements to the extent of role attributed to the appellants are not free from doubt and the same are not confidence-inspiring, therefore, mere absence of their enmity with the accused/appellants does not mean that we should straightaway maintain the death sentence of the appellants, without looking into the veracity of the evidence of such witnesses. The Hon'ble Supreme Court of Pakistan in its number of judgments has held that mere this fact that a witness is an independent witness does not necessarily prove that he is a witness of truth and intrinsic worth of the statement of any witness is the test of his veracity. Reference in this context may be made to the case of Muhammad Pervez and others v. The State and others (2007 SCM R 670). The above-mentioned view was reiterated by. The Hon'ble Supreme Court of Pakistan in the case of Farman Ahmed v.
Muhammad Inayat and others (2007 SCM R 1825).
17. 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 both the appeals, bearing Criminal Appeal No.970 of 2006, filed by Abdul Razzaq, and Criminal Appeal No.972 of 2006, filed by Haider Ali alias Babar, and set aside their conviction and sentences recorded by the learned trial Court against the appellants namely, Abdul Razzaq and Haider Ali M alias Babar. The appellants, Abdul Razzaq and Haider Ali alias Babar are in jail. They shall be released forthwith if not required in any other case.
' Death sentences awarded to the appellants Abdul Razzaq and Haider Ali alias Babar are not CONFIRMED and Murder Reference is answered in the ' NEGATIVE.
' It is clarified that the observations made in this judgment are not relevant for the case of the absconding accused.