Salahuddin Panhwar, J.--This appeal is directed against the judgment dated 10th December 2009 passed by 1st Additional Session Judge/Special Court (STA), Mirpur-Mathelo, Ghotki; whereby two accused Hadi Bux and Qurban Ali were acquitted on benefit of doubt and the appellant was convicted for imprisonment for life and fine of Rs, 100,000/- under Section 302 r/w Section 34, PPC.
2. Relevant facts of the case are that complainant Ali Gul lodged FIR on 17-04-1999 at 5:00 p.m., stating therein, that he along with his brother Nooruddin were going towards their village when they reached near the house of Haji Lal Muhammad Bozdar, they were way laid by accused Asghar, Anwar, Hadi Bux and Qurban, accused Asghar and Anwar were armed with K.Ks; accused Anwar and Asghar caused fire shots of KKs to Nooruddin, who sustained the same and died on the spot, thereafter accused persons escaped away.
3. Investigation was carried out, accused Hadi Bux and Qurban were sent up for trial whereas; in the challan sheet accused Anwar and Asghar were shown as absconder. Later-on accused Anwar was arrested on 22nd September, 2000 and sent up to face his trial through supplementary challan dated 11th October 2000.
4. Accused Hadi Bux, Qurban and Anwar pleaded not guilty, when charge was framed against them on 23rd April 2003, under Section 302, 34, PPC and claimed trial vide their respective pleas.
5. To substantiate the charge, prosecution examined seven witnesses namely 1, Dr.Gobind Ram, Medical Officer Ex-8, Haji Ali Gul (complainant) Ex.9,
3. PW-Lakhan at Ex.10,
4. Ghulam Murtaza (Tapedasr at Ex.11,
5. Mushir Asad at Ex,15,
6. Investigating Officer Muhammad Nawaz Malhan at Ex.16,
7. Mushir Ali Hassan at Ex.5.
6. Counsel for appellant has inter-alia contended that trial Court has not appreciated the material contradictions, available in the evidence of the witnesses; PWs have improved the statements during examination before the trial Court; such improvement is fatal to the prosecution case; both mushirs Asad and Ali were declared hostile by DPP, they have not supported the prosecution case, such important aspect of the case was not appraised by the trial Court; chemical examiner report was not produced before the trial Court even then same was confronted in Question No, 3 of statement under Section 342 of Criminal Procedure Code; according to the prosecution case incident had occurred in-front of the house of Lal Bux but Lal Bux was not examined by the prosecution to bring the truth on record; PW-Mir was an independent eye-witness but he was not examined by the prosecution and was given-up through statement dated 22nd December 2005, on the ground that he is out of Country and had gone to Saudi Arabia. Whereas; complainant in his examination before the trial Court has categorically stated that PW-Mir has been won-over; no recovery has been effected from the appellant; this is a case of conflict between ocular and medical evidence. In support of his arguments, learned counsel has relied case of Muhammad Rafique V. The State reported in 2010 SCM R 385, Muhammad Saleh V. The State reported in 2010 SCM R 1039; Asim V. The State reported in 2005 SCM R 417; Ali Sher V. The State 2008 SCM R 707.
7. Conversely Deputy Prosecutor General has contended that there is no material and fatal contradiction in prosecution case; prosecution has successfully proved their case against the appellant; judgment of the trial Court is well reasoned and based on proper appreciation of the evidence; role of appellant has been proved by concrete evidence and he has relied upon the case of Asim Vs. The State 2005 SCM R 417.
8. Having heard, the counsels for the respective parties and perusing the record of the case carefully, what we find is that the allegation, against the appellant/convict are that on 17-04-1999 at 5:00 p.m he alongwith co-accused Asghar, Hadi Bux and Qurban, being armed with K.Ks, intercepted complainant and deceased Noorudin near the house of Haji Lal Muhammad Bozdar.
Appellant/convict and co-accused caused fire shots of K.K. 5, upon Nooruddin, who, having received fire arm injuries, died on the spot. The perusal of the record makes it patent that the prosecution possessed the evidences of complainant and P.Ws namely Mir and Lakhan to prove the ocular account against the accused persons but the prosecution examined only two witnesses i.e, complainant and P.W Lakhan, while the PW Mir was given up. There can be no denial to the well settled principle of law that ocular account is of much significance and importance because other pieces of evidences are always meant to corroborate the ocular account and no conviction can legally sustain unless' the prosecution proves its case by direct, confidence inspiring and natural evidence. The perusal of the record reveals that the enmity between the parties is admitted as is evident from the admission of the PW Lakhan that "it is a fact that there are two murder counter cases filed by me against accused and filed by the accused against me and others, who are pending before 4th ADJ, Mirpur Mathelo". Since the enmity between the parties is admitted, therefore, the evidence of these prosecution witnesses was always required to be assessed with utmost care, caution and unless same is not corroborated by independent circumstances the same cannot be credited with truth. The reliance can safely be placed on the case law reported in Haji Muhammad Ilahi and others Vs. Muhammad Altaf alias Tedi and others 2011 SCM R 513. Being guided with the above principle of law, now we would like to examine the evidences of both these witnesses. The perusal of the record shows that the complainant Haji Gul during his examination brought material improvements and even remained changing the stance which fact may be examined under the parameter as decided in series of precedents: "A witnesses making improvements in his version subsequently to strengthen prosecution case losses its credibility as held in the case of Farman Ahmed Vs. Muhammad Inayat, reported in 2007 SCM R 1825 which was reaffirmed iri another case of Muhammad Saleem Vs. Muhammad Azam reported in 2011 SCM R 474 (Rel. P478/A). The operative part whereof is reproduced hereunder:-- "It is also a settled maxim when a witness improves his version to strengthen the prosecution case, his improved statement subsequently made cannot be relied upon as the witness had improved his statement dishonestly, therefore, his credibility becomes doubtful on the well-known principle of Criminal Jurisprudence that improvements once found deliberate and dishonest cast serious doubt on the veracity of such witness"
9. It is case of the prosecution that allegedly the appellant/convict and co-accused persons committed the murder of Noorudin by causing firing with K.Ks near the house of Haji Lal Muhammad Bozdar but quite strangely despite murder with fire-shots of K.Ks, no independent witness from the village was attracted except only two i,e, PW Lakhan (Nephew of complainant) and PW-Mir (cousin of complainant). Further, the prosecution examined only PW-Lakhan, who, being not only relative of complainant but accused in a murder case filed by appellant/convict, had a reason to become a witness against the appellant /accused but the PW Mir, who was also material witness was not examined by the prosecution without sufficient reason. Even the prosecution was not on one and same stand with regard to reason of with-holding the evidence of such material witness because the complainant stated in his examination that "The house of PW Mir is situated in the northern side of my house, adjoining my house. PW Mir has been won over by the accused persons. Since he has been won over after receiving some consideration therefore I did not examine him in this case" but the perusal of the statement of the learned DDA, through which PW Mir was given up reflects that he gave up the PW Mir on the ground that "on statement of complainant, PW Mir is abroad, has went to Dubai". Withholding of such a material witness without any plausible or sufficient reason leads to legal presumption, provided within meaning of Article 129(g) of Qanun-e-Shahadat Order, 1984 that had this witness been examined he would not have supported prosecution case. The reference can be made to the case law reported as 1970 SCM R 713 Muhammad Shafqat Vs. The State, reaffirmed in the case law, reported in 2011 SCM R 474 Muhammad Saleem Vs. Muhammad Man and another.
10. Further, it is manifest and evident from the statement of the complainant and PW Lakhan that they were at serious enmity with the accused/appellant side. Complainant admitted in his cross- examination that "I know that Banhoon Bozdar had filed a murder case against PW Lakhan and others, which is pending; There were some differences in between us and accused party over matrimonial affairs" but the complainant has furnished no explanation for going near to house of Haji Lal Muhammad Bozdar. This also creates doubt towards the place of incident and manner of incident more particularly when the PWAsad, mashir of all mashirnamas stated in his examination that all the mashirnamas were prepared as police station and his signatures were obtained on all above mashirnamas. The prosecution declared such witness as hostile and examined the second mashir namely PW-Ali Hassan but he also denied inspection of place of incident in his presence and even denied securing of any thing from place of occurrence in his presence. He voluntarily admitted that he was not present at the time of inspection of place of incident and even after seeing the memo. of inspection of place of occurrence he stated that the same does not bear his signature.
11. It is not disputed position that the alleged place of incident is near the house of Haji Lal Muhammad Bozdar hence the I.0 was required to have made some efforts to record/enquire from such most natural witness of the alleged incident. The I.0 of the case admitted in his cross- examination that "it is fact that place of wardat was situated in wheat cultivation of Lal Bux Bozdar.
House of Lal Bux Bozdar was adjacent to the place of vardat. There was only one house of Lal Bux Bozdar. I did not record the statement of Lal Bux". Such attitude of the I.0 also brings serious doubt in respect of the place of incident and happening of the incident more particularly when other witnesses (mashirs) have also not supported the prosecution case in this respect.
12. Since there can be no cavil to deny well established principle of law that conviction can not be sustained in absence of direct, natural and confidence inspiring evidence, as held in the case of Yasin alias Ghulam Mustafa Vs. The State" reported in 2008 SCM R 336. The operative part whereof is reproduced hereunder:-- "It is also an established principle of the administration of criminal justice that conviction cannot be based on any other type of evidence howsoever, convincing it may be unless direct or substantive evidence is available. Even, guilt of an accused cannot be based merely on high probabilities that may inferred from evidence in a particular case. In this view we are fortified by the following reported judgments:--
(i) Muhammad Luqman v. The State PLD 1970 SC 10,
(ii) Muhammad Noor v. Member-I, Board of Revenue, Balochistan and others 1991 SCM R 463 and
(iii) Qalb-e-Abbas alias Nehola v. The State 1997 SCM R 290.
Further, it was held in the case of Pir Mazhar-ul-Haque Vs State, reported in PLD 2005 SC 63 that:-- "In criminal cases a general rule is that an accused must always be presumed to be innocent and the onus of proving everything initial to the establishment offence is on the prosecution. All that may be necessary for the accused is to offer some explanation of the prosecution evidence if this appears to be reasonable even though not beyond doubt and to be consistent with the innocence of accused, he should be given the benefit of if. The proof of the case against the accused must depend upon the absence or want to any explanation on the part of the accused but upon the positive and affirmative evidence of the guilt that is linked by prosecution and substantiate accusation. There is no cavil with the proposition and judicial consensus seems to be that "if on the facts proved no hypothesis consistent with the innocence of the accused can be suggested, the conviction must be up held. If however, such facts can be reconciled with the any reasonable hypothesis compatible with the innocence of the accused, the case will have to be treated as one of no evidence and the conviction and the sentence will in that case have to be quashed."
In the instant case, as discussed above, the evidence is grossly deficient to prove the charge against the appellant beyond any shadow of reasonable doubts. The prosecution case is not free from doubts as such the appellant was/is entitled for benefit of such doubts well within meaning of principles, so defined and explained for Criminal Administration of Justice.
13. For the foregoing reasons, this appeal was allowed by our short order dated 20th September, 2012 and impugned Judgment was set aside.