' IBAD-UR-REHMAN LODHI, J.--- Against the appellant, on the report of Farzana Bibi widow of Imran Masih, a case originally under section 324 of P.P.C. For causing injuries to Fier husband was registered through F.I.R No,7/2008, in which on the event of the death of said injured Imran Masih, subsequently offence under section 302 of P.P.C. Was added on 9-1-2008 by way of Report No,18, and the appellant was sent to trial, upon which Sessions Trial No,3 of 208/Sessions Case No,6 of 2008 was conduced by a learned Additional Sessions Judge, Vehari.
2. After recording of prosecution evidence and the statement of the appellant-accused under section 342 of Cr.P.C., the learned trial Court by means of judgment dated 30-4-2008, convicted the appellant under section 302(b) of P.P.C. And sentenced him to death as Ta'zir with a further direction to pay Rs,2,00,000 (rupees two lac only) as compensation to the legal heirs of the deceased or in default thereof to undergo a sentence of six months' S.I.
3. The appellant, by way of the above cited Criminal Appeal, challenged such conviction and sentence, whereas, the learned trial Court has transmitted Murder Reference No, 18 of 2008 for confirmation or otherwise of the death sentence of the appellant-lkraam Masih. We propose to dispose of both these matters together by this single judgment.
4. It was reported to the police by the complainant-Farzana Bibi that on the night in between 8/9-1- 2008, her husband returned from Karachi and they along with their minor daughter were sleeping inside their room, when at 2-00 a.m. In the said night, she woke up on hearing sonic noise on the roof top of their room and she raised hue and cry, which attracted Waheed Ahmad Lambardar of the village and Mohammad Iqbal, a co-villager, and in view of said persons, within the source of light, the accused Ikraam Masih by pulling out a tile from the roof of the said room, where the deceased was sleeping made a way for firing at the deceased and from such hole, fired three shots hitting the chest, belly portion and the right flank of the deceased. The accused, according to the complainant, thereafter fled away.
' The motive, as alleged in the F.I.R. Was that the accused and the deceased were serving in Karachi and the had some fiscal dispute, which already resulted in some altercation in between two brothers some time ago and in order to take revenge of such dispute, her husband was fired at by her brother-in-law.
5. In addition to formal witnesses, the prosecution produced the complainant Farzana Bibi as P.W.7 and the other alleged eye-witness Waheed Ahmad Lambardar of the village as P.W.8. The Investigating Officer of the case Ansar Ali Sub-Inspector appeared as P. W.10.
6. The learned counsel for the appellant, while canvassing for his acquittal, has argued on the following points:--
(i) Dishonest improvements in the statements of the prosecution witnesses;
(ii) It was a dark night occurrence and a blind murder;
(iii) The story of the prosecution, if taken as correct, is not believable, particularly, with reference to identification of a person; and
(iv) Presence of the complainant at the scene of occurrence is doubtful.
7. The learned Deputy Prosecutor-General for the State, in his turn, has supported the impugned judgment and argued that there was no justification or reason with the prosecution to substitute the appellant with the actual culprit.
8. With the assistance of the learned counsel for the parties, we have gone through the evidence available on record.
9. The prosecution' mainly depends on the statements of the complainant-Farzana Bibi P.W.7 and Waheed Ahmad P.W.8. The perusal of the statement of the complainant Farzana Bibi P.W.7, reveals that she has made noticeable improvements in the case, as was originally set up by the prosecution by means of her statement, which was converted into formal F.I.R. Exh.PD. When this witness has stated that she saw towards the roof top, where a person was present having a pistol in one hand and a sabbal' in his other hand with the help of which, the accused pulled out a tile of the room and then in view of the witnesses, the accused made three successive fire shots with pistol, she was confronted with her statement Exh.PD/1 on various aspects e.g. Opening of door of the house and coming out in the courtyard after hearing the noise, to see Ikraam Masihaccused standing on roof having a sabbal' and a pistol and the incident of firing by the accused-Ikraam Masih with his pistol from the roof top of the room, and the direction of decamping of the accused after firing at the deceased.
10. Similarly, P.W.8 Waheed Ahmad, the other eye-witness, deposed that he saw the appellant standing on the roof top of the room in the electric light, having pistol in his hand. This witness has made another important disclosure that on the following day i,e, 9-1-2008, there was marriage ceremony of the complainant's sister in Kamalia and all remaining inmates including parents, brothers and sisters of the inmates had already proceeded to participate in the said marriage ceremony. This witness also attempted to prove his presence at such part of late night viz. 2-00 a.m. By explaining that he was outside his house with his dogs for their exercise and making them to ease. He also stated that he woke up as a result of barking of the dogs. This witness has given the size of the tile removed from the roof by the appellant making a way to fire at the deceased, which according to his statement was 10 inches into 4 1/2 inches. He has also given the height of the room, where the deceased was lying, on a cot as 11/12 feet.
11. Exh.P.M 'is the site plan, where point No,2 is shown as a place on the roof from where /tile of the said root was allegedly pulled of by the accused. Point No,5 is the place from where statedly the eye-witnesses viz. Farzana Bibi, Waheed Ahmad and Muhammad Iqbal, have witnessed the accused pulling out the tile of the roof and then firing with a pistol and then fleeing away.
12. After scanning of this evidence, we are of the considered, view that the prosecution, particularly, P.W.7 Farzana Bibi and P.W.8 Waheed Ahmad have made B dishonest improvements in the case as was set up originally at the time of registration of F.I.R. The presence of the complainant in Vehari on a day preceding to the day of marriage of her real sister, when her in-laws had already proceeded to Kamalia to attend that marriage ceremony, is completely doubtful and beyond understanding. We have noticed that if the hue, and cry of the complainant-Farzana Bibi P.W.7 attracted Lambardar of the village, namely, Waheed Ahmad whose house is admittedly situated at a distance of ten houses from the place of occurrence and the other one Muhammad Iqbal, why her husband sleeping in the room at the door of which the complainant was raising hue and cry was still sleeping and did not change even- his position on the cot. The complainant-P.W.7 and Waheed Ahmad P.W.8 are not consistent with the location of house of P.W.8, as P.W.7 in her statement has stated that the house of P.W.8 situates after ten houses of the complainant, whereas, P.W . 8 has categorically denied such suggestion. The manner in which the P.Ws. Have shown as to how they identified the appellant during all his activities on the roof top of the room, is also not believable. Admittedly, there is no staircase or any approach to climb over the roof top of the said room. The prosecution case is that before such occurrence, the appellant was sleeping in the Baithak' of the said house, but the prosecution has not shown any skid marks over the wall of the said house nor any other mean with the help of which the appellant could climb over in order to approach the roof top of the said room. In their statements made on Oath during trial, the witnesses viz., P.W.7-Farzana Bibi and P.W.8-Waheed Ahmad have never pointed out with any exactitude the location of electric light with the help of which they allegedly identified the assailant.
Point No,5 in the site plan Exh.P.M is shown within the room from where it is not humanly' possible to glance through the wall and roof any activity, which was being happened at the roof top. From the hole of a roof top viz. 10 inches into 4-1/2 inches, it is again humanly not possible to identify a person having normal height in between 5 to 6 feet. Even otherwise, it is the case of the prosecution that only a hand was seen from said hole firing with a pistol. Admittedly, except the complainant- Farzana Bibi P.W.7, Waheed Ahmad P.W.8 and Mohammad Iqbal, none other came at the spot.
Mohammad Ibqal has not been produced. P.W.8-Waheed Ahmad, being Lambardar, is a political figure in the vicinity and there is admittedly a political rivalry in the village and P.W.8, as well as, E the appellant, according to the prosecution's own evidence, were of different political groups.
P.W.8-Waheed Ahmad, thus, cannot be termed as an independent witness.
13. The Hon'ble Supreme Court. Of Pakistan in the case of Akhtar Ali and others v. The State (2008 SCM R 6), at page 12 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 when 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".
' Similar view was taken by the Hon'ble Supreme Court of Pakistan in the case of Farman Ahmed v.
Muhammad Mayor and others (2007 SCM R 1825).
14. The Investigating Officer of this case Ansar Ali Sub-Inspector-P.W.10 has specifically mentioned that he decided to inspect the spot even on rising of sun in the morning as, according to him, it was complete darkness of night, when he for the first time went to the place of occurrence. He has not mentioned about presence of any electricity light on some conspicuous place of the occurrence, rather in fact, he has denied the availability of any electric light.-He has only seen a bulb affixed on a board inside the room adjacent to door. According to the Investigating Officer, the complainant- Farzana Bibi P.W.7 and Waheed Ahmad-P.W.8 informed him about the incident of identification of the accused in the light of bulbs affixed inside the room; however, he has made clear that according to his investigation, at the time of occurrence, the complainant was present at Point No,4 shown in the site plan Exh.P.M, whereas, P.Ws. At Point No,5 of the site plan and both these points are located inside the room from where it is Humanly not possible to see the activities over the roof top of the said room. The- prosecution, according to the Investigating Officer, has not bothered to collect the foot prints over the roof top neither any finger prints on the `sabbar recovered by the Investigating Officer from the roof top of the room.
15. The appellant, when questioned during his statement under section 842 of Cr.P.C, as to why the prosecution has made this case against him, has replied to the following effect:- " In fact it was a blind murder. I have been falsely roped in this case because the parents of the complainant had intended to give hand of their daughter Robina to me and my parents and myself were not willing so, therefore, the complainant had grudge against me. There was two rival political groups in our village. P. W. Waheed Ahmad Lambardar is head of one group. In the last local bodies election I and my family did not support the candidate of Waheed Lambardar.
Therefore, he deposed falsely against me. I am innocent".
16. In view of the above discussion, we are of the considered view that the prosecution case against the appellant is replete with material improvements and the story of the prosecution qua involvement of the appellant in the case is highly doubtful, therefore, we hold that the prosecution failed to prove its case against the appellant beyond the shadow of doubt.
17. Insofar as the evidence of alleged recovery, of pistol P.11 from the appellant Ikraam Masih and positive report of Forensic Science Laboratory Exh.PO, 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 absence 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, we are of the view that the conviction and sentence of the appellant cannot sustain merely on the basis of above-mentioned recovery.We are guided in this respect by the cast 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 recovery 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 how 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 Saifiillah v. The State (1985 SCM R 410) and Abdul Mateen v. The State and others (PLD 2006 Supreme Court 538).
18. In the light of above discussion, we hold that the prosecution has failed to prove its case against the appellant beyond any shadow of doubt, therefore, by extending the benefit of doubt, we accept this appeal bearing Criminal Appeal No,88 of 2008 of 2006, filed by lkraam Masih and set aside his conviction and sentence recorded by the learned trial Court. The appellant is in jail. He shall be released forthwith if not required in any other case.