' SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Waseem Ali Khan son of Muhammad Bashir, resident of Dhoke Babra, Police Station Bahtur Fateh Jhang, District Attock and Ayaz Khan son of Muhammad Riaz Khan, resident of Sabra, Police Station Bahtur Fateh Jhang, District Attock, appellants along with Zeeshan alias Shani (since P.O.) and Muhammad Ashraf (since murdered) were involved in case F.I.R. No. 439, dated 9-10-2009, offence under sections 302, 34, P.P.C., registered at Police Station Wah Cantt., District Rawalpidi and were tried by Mr. Shaukat Iqbal Ahmad, learned Additional Sessions Judge, Taxilla. The learned trial Court seized with the matter in terms of judgment dated 19-11-2009 convicted the appellants under section 302(b)/34, P.P.C., and sentenced each of them to death. The appellants were also directed to pay Rs.2,00,000 each to the legal heirs of the deceased in terms of section 544-A, Cr.P.C. And in case of default in payment thereof, both of them were directed to undergo S.I. For six months.
2. Feeling aggrieved by the judgment of the learned trial Court, the appellants impugned the same by way of filing Criminal Appeal No.483 of 2009, while the learned trial Court forwarded Murder Reference No.78/RWP of 2009 for confirmation of death sentence inflicted upon Waseem Ali Khan and Ayaz Khan/ convicts. The complainant also filed Criminal Revision No.227 of 2009; thereby seeking enhancement in the compensation amount. As all the matters are arising out of one and the same judgment of the learned trial Court, therefore, these are being disposed off through consolidated judgment.
3. Prosecution story as contained in the F.I.R. (Exh.PMM/1) lodged on the complaint of Abdul Khaliq son of Muhammad Afzal Khan (P. W.14) is that he is resident of Losar Sharfoo -Wah Cantt. And involved in the business of property dealing. On the night between 8-10-2006 and 9-10-2006, the complainant along with Afzaal Khan son of Iqbal Khan and Arshad Mahmood son of Hazara was present at Bhatar Morr when his maternal cousins namely Naseer Khan and Naseer Khan alongwith their friends Atif Abbas and Tahir Mehmood while riding on vehicle No.8879/IDK reached there. On the inquiry made by the complainant Naseer Khan (deceased) told that they were going to see/visit Zeeshan alias Shani (since P.O.) who had called them. After sometime they set for their journey and subsequently within few minutes from the side of Jung Bhatur Morr, the complainant and other witnesses heard the noise of fire shots. The complainant along with other prosecution witnesses suddenly approached towards Jang Bhattar Morr and saw that Zeshan alias Shani accused (since P.O.) along with three unknown accused persons after seeing the complainant while riding on their vehicle fled away, whereas, Car bearing Registration No.8879/IDK belonging to the deceased was parked alongside the road. The complainant saw that his cousins and their friends had succumbed to the firearm injuries and dead bodies of Tahir Khan and Nafees Khan were lying just at the back of the car, whereas, the dead bodies of Atif Abbas and Naseer Khan were lying at some distance.
' Motive behind the occurrence as set forth in the crime report was that Naseer Khan deceased, wanted to marry with mamoo-zad of Zeshan accused for which Zeshan alias Shani accused was not agreeing and due to this reason time and again altercation between Zeshan and Naseer Khan deceased had taken place time and again and due to this grudge Zeeshan accused (since P.O.) along with three unknown persons, in furtherance of their common intention, had committed the murder. It is pertinent to mention here that subsequently through supplementary statement (Exh.DA) the present appellants along with Muhammad Ashraf (since murdered) were named as assailants.
4. On receipt of information regarding the occurrence Muzaffar Khan, S.-I. (P.W.16), who at that time was posted as Incharge Police Post Wah Cantt. Reached there and saw that dead bodies of four persons were lying at the spot smeared in blood. At that time the complainant along with Afzaal, Arshad and 10/15 other persons were also present. Abdul Khaliq made statement before P.W.16, which was reduced into writing (Exh.PMM) and the complainant signed/thumb-marked the same in token of its correctness. The Investigating Officer sent the complaint to Police Station for registration of formal F.I.R. Thereafter he inspected the dead bodies and prepared inquest report of Naseer Khan deceased (Exh.PNN). He also drafted application for his post mortem examination (Exh.PBB). Then the Investigating Officer prepared inquest report of Nafees Khan (Exh.POO), as well as, application for his post mortem examination (Exh.PHH). Inquest report in respect of dead body of Atif Abbas deceased (Exh.PP) and application for his post mortem examination was drafted by the Investigating Officer as Exh.PEE. Finally the Investigating Officer prepared inquest report of Tahir Mahmood deceased as Exh.PQQ and also drafted application for his post mortem examination as Exh.PQQ/1. The Investigating Officer also prepared memo of articles recovered from Naseer Khan deceased two mobile phones (P-6) and (P-7), currency amounting to Rs.2,050 (P-8) and secured the same through recovery memo Exh.PF. From the dead body of Nafees Khan deceased the Investigating Officer collected one mobile phone (P-3) along with currency notes amounting to Rs.1,000 (P-4) and took the same into possession vide recovery memo Exh. PD. From the dead body of Atif Abbas deceased the Investigating Officer collected an amount of Rs.5,000 (P-5) and secured the same vide recovery memo Exh.PE, while from the dead body of Tahir deceased the Investigating Officer collected one mobile phone (P-1) along with currency notes amounting to Rs.1,070 (P-2), which he secured through recovery memo Exh.PC. The Investigating Officer dispatched the dead bodies along with relevant papers to the mortuary for the purpose of post mortem examination. Thereafter, the Investigating Officer inspected the place Of occurrence and prepared rough site plan (Exh.PRR). During the spot inspection the Investigating Officer collected blood-stained earth from the places of murders of all the four deceased and secured the same vide recovery memo Exh.PM, Exh.PN, Exh.PP and Exh.PQ, which were attested by the prosecution witnesses. The Investigating Officer also collected four crime empties of pistol .30-bore (P-10/1-4) and took into possession vide recovery memo Exh.PH. Besides, the Investigating Officer collected two crime empties of gun .12-bore (P-11/1-2) and secured vide recovery memo Exh.PJ. Mobile phones (P-9 and P-10) were taken into possession by the Investigating Officer vide recovery memo Exh.PG. The Investigating Officer also look into possession car (P-12) belonging to the deceased vide recovery memo Exh.PK.
' After the post mortem examination last worn clothes of Naseer Khan deceased qameez (P-13), bunyan (P-14) and shalwar (P-15), were produced before the Investigating Officer, which he took into possession vide recovery memo Exh.PX. Last worn clothes of Nafees Khan deceased qameez (P-16), bunyan (P-17) and shalwar (P-18) were secured vide recovery memo Exh.PY. The Investigating Officer also recorded the statements of the prosecution witnesses under section 161, Cr.P.C. Subsequently Ishaq constable handed over last worn clothes of Atif Abbas qameez (P-19), shalwar (P-20) and bunyan (P-21) and of Tahir Mehmood deceased qameez (P-22), shalwar (P- 23) and bunyan (P-24) to the Investigating Officer, which he took into possession vide recovery memo Exh.PSS and Exh.PTT respectively. On the same day, Mst. Khalida Parveen (P.W.11) got recorded her statement before the Investigating Officer under section 161, Cr.P.C. While the complainant also made supplementary statement, wherein the appellants were nominated.
' On the direction of the Investigating Officer and pointing out of the P.Ws., Halqa Patwari after taking rough notes of the place of occurrence, prepared scaled site plan (Exh.PA/1-4), which was made part of the file.
' Subsequently the investigation came up before Gulistan Khan Inspector (CW), who obtained physical remand of the accused/appellants, however, during the course of investigation nothing was recovered. Moreover, having found Ayaz Khan appellant innocent, Gulistan Khan Inspector also got prepared his discharge report. Thereafter, the investigation in this case was conducted by Ghulam Muhammad Karyar, the then Superintendent of Police/ Investigation (P. W.18), who finalized the same on 4-7-2007 and having found the appellants guilty, the Investigating Officer got prepared report under section 173, Cr.P.C. And sent the same to the Court of sessions en-routed through the Illaqa Magistrate as provided under section 190(2), Cr.P.C. On 24-3-2008, learned Additional Sessions Judge, Taxilla, formally charge-sheeted the appellants to which they pleaded not guilty and claimed trial. Prosecution in support of its version produced as many as eighteen
(18) prosecution witnesses.
5. Occular account in this case has come out from the statement of Abdul Khaliq (P. W.14), which was supplemented by Aurangzeb (P.W.13). Mst. Khalida Nasreen (P.W.11) had advanced the prosecution version to the extent of motive, while on presentation of complaint Muhammad Shabbir S.I. (P. W.15) had chalked out formal F.I.R. Waseem Haider, Halqa Patwari (P.W.1) had prepared scaled site plan, whereas, investigation in this case was conducted by Muzaffar Khan, A.S.-I. (P.W.16), Gulistan Khan Inspector (CW) and Ghulam Muhammad Kalyar, S. P/Investigation (P.
W . 18).
' Dr. Taseer Ahmed Qureshi (P.W.12) had conducted post mortem examination upon the dead body of Muhammad Naseer Khan deceased and found following injury on his person:- "(1) There was a 3 cm long and 2 cm wide wound situated 8 cm from the left nipple and 7 cm below the left clavicle on the left chest. It was blanked and three small wound surrounded it. These wounds were through the chest wall."
' After conducting the post mortem examination the doctor had rendered the following opinion:-- "In my opinion, there was a single external injury which was the cause of death by causing acute circulatory failure and shock due to extensive haemorrhage which was enough to cause death. The probable time elapsed between injury and death was instantaneous or within few minutes, whereas the probable time elapsed between death and postmortem was four to six hours."
' On the same day P. W.12 had also conducted post mortem examination upon the dead body of Atif Abbas deceased and found the following injuries on his person:-- "(1) There was a large circular hole 4.5 x 4.5 cm present over the left shoulder upper border about 8 cm from the top of the left sh'oulder joint and 11 cm below the left ear. Extensive blackening was seen around the hole and behind the ear and blood pouring out of the hole."
' Regarding the death of Atif Abbas deceased, the doctor had opined in the following terms:-- "In my opinion, there was a single external injury as shown in the figure was the cause of death which was homicidal and ante-mortem in nature. It caused death due to immediate circulatory shock due to massive haemorrhage from a big artery. The probable time elapsed between injury and death was instantaneous or within few minutes, whereas the probable time elapsed between death and postmortem was four to seven hours."
' On the same day at 7-00 a.m. The doctor had also conducted post mortem examination upon the dead body of Nafees Khan deceased and found following injuries on his person:-- "(1) There was .5 cm x .5 cm lacerated wound over the right chest 2.5 cm from the midline with lot of blackening and 8.5 cm from the sternum.
(2) Exit wound of the injury No.1 seen on the posterior scapular region of left side lower region. This was .5 cm x .5 cm and 11 cm from the vertebral column.
(3) One small wound present over the lower part of the right buttock.
(4) Another small wound present on the inner side of the lower part of the right buttock. It seems to be the exit wound of injury No.3"
' The doctor, after conducting the post mortem examination, had rendered the following opinion:-- "In my opinion, the cause of death was circulatory failure due to excessive haemorrhage and shock due to damage to the vital organs of blood circulation which was sufficient to cause death within few minutes in the ordinary course of nature. This was due to Injury No.
1. The probable time elapsed between injury and death was instantaneous or within few minutes, whereas the probable time elapsed between death and postmortem was seven to eight hours."
' Thereafter, at about 8-15 a.m. The doctor had further conducted autopsy on the dead body of Tahir Mahmood deceased and found following injuries:- "(1) There was a lacerated wound 1 cm x .5 cm on the lateral side of chest wall, which was 10 cm below the left nipple and 13.5 cm from the ' midline of body. This seems to be entry wound.
(3) Another lacerated wound 1.5 cm x 1 cm on the lateral side of the right chest. This was 15 cm below the right nipple and 15 cm from the midline and was oval shape and this seems to be exit wound.
(3) A lacerated wound 1 cm x .5 cm on the outer quadrant of the right buttock.
(4) Another lacerated wound in the center of the midline of lower back about 7 cm above the start of the natal cleft. A piece of bullet was recovered from under wound No.5 from underlying vertebra which was fractured. After the post mortem examination, the doctor opined that:- "In my opinion, the cause of death was the acute circulatory failure due to massive haemohrrage and shock caused by the Injury No.1 due to damage to the vital organs of circulation. Other injuries were trivial and on the non-vital part. The probable time elapsed between injury and eath was instantaneous or within few minutes, whereas the probable time elapsed between death and postmortem was 7 to 9 hours."
' Statements of rest of the prosecution witnesses are formal in nature.
6. On 21-6-2008 learned DDPP gave up Muhammad SaleemTariq Hayat, Javed Akhtar, Gulistan Khan and Wazeer Khan: P.Ws., being unnecessary. Vide his statement recorded on 28-6-2008, learned DDPP further gave up Waqas Mehmood, whereas, on 2-5-2009, Afzaal and Arshad Mehmood P.Ws. Were also given up again being unnecessary. On 4-7-2009 after giving up Muhammad Shabbir and Tariq Mahmood; P.Ws., being won over, learned DDPP after tendering in evidence the report of Chemical Examiner (Exh.PZZ) and report of Serologist (Exh.PZZ/1), closed the prosecution evidence.
7. Both the appellants were also examined under section 342, Cr.P.C., wherein they opted not to appear as their own witnesses in terms of section 340(2), Cr.P.C. In disproof of the allegations levelled against them in the prosecution evidence. The appellants further did not opt to adduce evidence in their defence.
' In response to the question why this case against him and why the P.Ws. Deposed against him, Ayaz Khan appellant made the following deposition:- "I was teenager and was just entered in the reality of life after passing my Matriculation Examination with distinction and awarded commendations from my educational institution. I was studying in the 1st year in Tameere-Millat School, Ratwal, Fateh Jang (an English Medium School) when I was apprehended in this case and my entire career due to this false implication is at jeopardy. Mr. Iftikhar Tarar, SSP and Gulistan Khan, Inspector the I.O. Confirmed that I was Juvenile at the time of my false implication in this case and studying in 11th Class. I was about 17 years and hardly entered into the reality of life when made scopegoat in the instant case by my foes. The perusal of the F.I.R. Shall be revealing to the effect that I am not named at all in the well-considered, deliberated and delayed F.I.R. Even my description worth name is not given by so-called witnesses namely Abdul Khaliq, complainant, Afzaal Khan and Arshad Mehmood, given up P.Ws. In the interest of justice their statement under section 161, Cr.P.C. Can be perused to ascertain the truthfulness of my version. I was arrayed an accused in the case through device of padding by the police in connivance with the complainant through supplementary statement and same cannot be equated with F.I.R. As the complainant could not give any rhyme and reason of not naming me out in the F.I.R. Or not mentioning my description and subsequently roping me in falsely in a manoeuvred supplementary statement with the blessings of local police, there is no iota of tangible evidence creating my nexus in the crime. I remain on physical remand almost a full statutory period but inspect orthodox, coercive, quarrelsome, torturous and brutal investigation by I.O. My first version remained consistent and nothing incriminating could be recovered from me, though I remain under pains for a considerable time after physical remand and getting Treatment in jail during investigation. The truthful plea of alibi of my participation in a Nikah ceremony at Halaval Okara in presence of numerous repeatable who confirmed the same before various I.Os.
Shall be proving my non-participating in the crime on the fateful night. That Mr. Iftikhar Tarar, SSP Gulistan Khan, Inspector and Mr. Ghulam Muhammad Kalyar, SP confirmed my presence at the relevant juncture at Halaval Okara. I am absolutely innocent and undergoing incarceration for the last about three years as the prosecution was protracting my agony by using dilatory tactics in prolonging my trial. Even no motive is mentioned against me in the F.I.R. Exh.PMM or in the so-called supplementary statement Of complainant Exh. DF but he made dishonest improvements at trial."
' While replying to a similar question, Waseem Ali Khan appellant stated as under:-- "I am absolutely innocent. My name is not mentioned in the F.I.R. No description of my name is given in the F.I.R. I *as arrayed as accused in this case falsely by the complainant party through device of wider net. F.I.R. Shall be revealing to the effect that even my bald description is not mentioned in that weil considered belated F.I.R. No motives were named or mentioned against me even in the supplementary statement of the complainant Exh. DF which recorded at a very belated stage. I was tortured, coerced and brutally dealt with by the police during my long remand of almost full statutory period, but nothing incriminating could be recovered from me, creating my nexus in the crime. There is no evidence worth name qua my complicating in a crime. I am a scapegoat ex facie."
8. Learned trial Court after evaluating the evidence available on, record in light of arguments advanced from both sides, found, the prosecution version proved beyond shadow of reasonable doubt resulting into conviction of the appellants in the afore stated terms.
9. Learned counsel for the appellants while advancing arguments contended that in the instant case the occurrence had taken place at odd hours of night, therefore, the identify of accused persons is not possible. The involvement of the appellants through supplementary statement, learned counsel emphasized, cannot be given any credence especially when bare reading of the supplementary statement reveals that both the appellants were admittedly renowned persons of the area, therefore, non-mentioning of their names in the crime report speaks volume qua the authenticity of the prosecution version. Learned counsel vehemently argued that the presence of Abdul Khaliq (P.W.14)/complainant and Aurangzeb (P.W.13) at the place of occurrence at the relevant time at odd hours of night is not confidence inspiring as they failed to establish that they had witnessed the occurrence especially when they are residents of 5-Kms and 1-1/2 Kms away from the place of occurrence and even their presence could only be termed as per chance.
Learned counsel further submitted that both the P.Ws. Being closely related to the deceased were also interested witnesses. The best evidence, learned counsel contended, in the shape of Afzaal Khan and Arshad Mehmood, who had allegedly witnessed the occurrence, was withheld by the prosecution, which itself shatters the prosecution versiong It was next argued by learned counsel that nevertheless both the appellants remained on physical remand for a period of, twelve days, however, no recovery was effected from them. Learned counsel went on arguing that even Ayaz Khan, appellant was found innocent during the course of investigation and the Investigating Officer had also prepared discharge report to his extent. It was next contended by learned counsel that neither any glimpse of body structures of the 'accused were mentioned in the crime report nor test identification- parade was conducted, which further frustrates the prosecution case. Learned counsel further submitted that motive is not ascribed to either of the appellants, therefore, evidence of Mst. Khalida Nasreen (P.W.11) cannot be read against them. In absence of any direct evidence, learned counsel for the appellants emphasized, the medical evidence does not come forward for the rescue of the prosecution version and in view of deficit prosecution evidence, the learned trial Court was not justified in recording conviction against the appellants, which is liable to be set aside.
' While arguing Criminal Revision No.227 of 2009 filed by the complainant seeking enhancement in amount of compensation, learned counsel on behalf of the respondents contended that as the prosecution had badly failed to prove its case through leading cogent and confidence inspiring evidence, therefore, the same is liable to be dismissed.
10. As against above, learned Law Officer assisted by learned counsel for the complainant forcefully controverted the assertions made by learned counsel for the appellants with the submissions that nevertheless it was a night occurrence, however, in the headlights of car, the appellants along with other co-accused were identified by the complainant and other P.Ws. Learned counsel for the complainant agitated that the prosecution through leading cogent, unbiased and confidence inspiring evidence proved its case against the appellants to the hilt, therefore, the learned trial Court while appreciating the prosecution evidence in true perspective rightly inflicted normal penalty of death. Learned counsel further submitted that the medical evidence is in line with the prosecution evidence especially with reference to time of occurrence. It was next argued that nevertheless local police conducted faulty investigation, however, subsequently P. W.18, a senior Police Officer, recommended for challan of the both the appellants. Moreover, through the record of mobile calls both the appellants are fully linked with the occurrence. Learned counsel further submitted that the appellants along with their other accused including Zeshan alias Shani in connivance with each other had committed the murder of four young guys and the complainant and other P.Ws., in, absence of any previous enmity, had no ill-will to falsely substitute the appellants in place of real culprits. Reports of Chemical Examiner and Serologist, learned Law Officer argued, fully connect the appellants with the commission of offence. With regard to giving up Muhammad Afzaal and Muhammad Arshad, P.Ws., learned counsel for the complainant contended, the prosecution is always at liberty to adduce the evidence of its own choice and it is not required to produce all the prosecution evidence. Learned counsel for the complainant further agitated that during the course of trial the accused took various defence pleas, however, failed to establish the same. In this backdrop, it was finally argued that the learned trial Court while attending each and every aspect of the case in light of prosecution evidence available on the record rightly passed conviction against them, therefore, no exception can be made to the same.
' While arguing Criminal Revision No.227 of 2013, learned counsel for the complainant/petitioner submitted that as the accused had taken lives of four innocent young guys, therefore, the amount of compensation in terms of section 544-A, Cr.P.C. Is liable to be enhanced.
11. Arguments advanced from both . Sides have been heard. We have also gone through the record available on file with the able assistance of learned counsel for the appellants, learned counsel for the complainant, as well as, learned Law Officer.
12. In the instant case, the occurrence had taken place on 9-10-2006 at 12-00 a.m. (mid-night) i.e. Odd hours of night at a roadside, however, no proper source of light has been given in the crime report. The presence of the complainant and P. W.13 at the relevant time, in the odd hours of night, is a question, which requires serious consideration while scrutinizing the attending circumstances of the case especially when both of them were residents of 5-Kms and 1-1/2 Kms away from the place of occurrence. It is very astonishing that at one hand the complainant claims that he along with P.W.13 had witnessed the occurrence and fleeing away the accused in their eye-view, in the headlights of the car, however, quite contrary while making complaint (Exh.PMM) he did not specifically name the appellants/assailants. Moreover, perusal of crime report reveals that even glimpse of body structures of the assailants were not mentioned therein as such this aspect cannot be lost sight off easily particularly when at the time of recording his supplementary statement, the complainant while naming the appellants as assailants had stated that the accused were prominent figures/ personalities of the area. In this backdrop it can easily be held that the prosecution version with regard to identity of the accused is fluctuating and the prosecution is not sure about the characteristics of the accused. The identification of the accused as disclosed in the statement of the complainant carries no authenticity because the dead bodies of the deceased were found from scattered places, therefore, in absence of any corroborating evidence on this point, in isolation the statement of the complainant on this score cannot be given any credence especially in the case involving capital punishment. In the above scenario holding of test identification parade was of pivotal importance particularly when it is not the prosecution case that Muhammad Afzaal and Muhammad Arshad, P.Ws. (since given up) knew the appellants prior to the occurrence, however, the same was not done for the reasons best known to the prosecution.
' Another important aspect of the case is that Aurangzeb (P.W.13) nevertheless had seen the accused fleeing away after committing the occurrence, however, neither he reported the matter to the police nor informed the complainant about the names of the assailants rather his statement in terms of section 161, Cr.P.C. Was recorded on the following day at 10-00 a.m. And this fact alone creates suspicion in the mind of the Court before giving any weight to his statement especially when conduct of the prosecution witnesses prima facie seems to be unnatural when on when hand he claims that he had seen the accused after the occurrence and on the other hand it has also come in his statement that he slept at night in routine and preferred to make statement on the following day. Moreover, perusal of record reveals that regarding the features/manner of occurrence, while appearing in the witness box, both the complainant and P.W.13 had improved their statements earlier recorded under section 161, Cr.P.C. In the dictum of, law laid down by august Supreme Court of Pakistan in the case of Muhammad Rafique and others v. The State and others (2010 SCM R 385), it has been held that the statement of any witness improved at trial Is not worth relying rather such improvement creates serious doubts about its veracity and credibility. Similar view was held in another case reported as Saeed Ahmed Shah v. The State (1993 SCM R 550).
Moreover, both the P.Wsi of the occular account are closely related to the deceased; hence they have made statements being interested witnesses. It is also the prosecution own case that both the complainant and P.W.13 were property dealers, however, while appearing in the witness box they stated that they had gone to Hassan Abdal to purchase buffaloes, which lacks corroboration from the evidence available on the record, hence even otherwise presence of the prosecution witnesses at the place of occurrence at the relevant time was but per chance. In the case of Nadeem alias Nanha alias Billa Sher v. The State (2010 SCM R 949), it has been held that statements of interested and chance witnesses cannot be given much weight. Similar view was affirmed by august Supreme Court of Pakistan in the cases of Abid Ali and 2 others v. The State (2011 SCM R, 208) and Muhammad Ashraf v. The State (2012 SCM R 419).
13. It is in the prosecution evidence that at the relevant time Muhammad Afzaal and Muhammad Arshad, P.Ws. Were present along with the complainant. In this situation the most natural evidence could be the statements of Muhammad Afzaal and Muhammad Arshad, who had no relationship with either side, however, their statements were withheld by the prosecution, hence in this backdrop the prosecution case is squarely hit by Article 129(g) of Qanun-e-Shahadat Order, 1984, and negative inference would be drawn to the effect that had they appeared before the learned trial Court, they ought have not supported the prosecution version. Guidance in this regard is solicited from the dictum of law laid down by the august Supreme Court of Pakistan in the case of Lal Khan v. The State (2006 SCM R 1846).
14. As per prosecution version at the time of spot inspection the Investigating Officer had collected four crime empties of pistol .30-bore and two crime empties of gun .12-bore, which itself is contrary to the contents of crime report; wherein specification of weapons is not mentioned, however, during the course of physical remand of twelve days, nothing was recovered from either of the appellants to establish their link with the commission of offence. Fact also remains that while conducting investigation, Gulistan Khan Inspector (CW) had concluded that Ayaz Khan appellant was not present at the place of occurrence at the relevant time and while declaring him innocent, he had also prepared discharge report to his extent. Hence, admittedly the bulk of prosecution case was found false. Hence; in view of ratio decidendi of august Supreme Court of Pakistan in the cases of Akhtar Ali and others v. The State 2008 SCM R 6, Sheral alias Sher Muhammad's case (1999 SCM R 697) and Sher Bahadur's case (1972 SCM R 651), this fact creates serious dents in the prosecution version, which squarely goes to the root of the case.
15. We also find much weight in the contention of learned counsel for the appellants that as the prosecution had badly failed to substantiate its case against the appellants, therefore, medical evidence does not come forward to rescue the prosecution version. Similarly, the recovery of mobile phones and the data allegedly collected by the prosecution being that of corroborative nature cannot be termed as an incriminating material to saddle the appellants with the liability against whom otherwise it has badly failed to establish any link with the occurrence.
14. Admittedly neither in the crime report nor during the course of investigation or before the learned trial Court, the prosecution had set any specific motive against the appellants rather it was established against Zeshan alias Shani accused (since P.O.).
15. From the facts and circumstances narrated above, we are persuaded to hold that prosecution has badly failed to substantiate its case against the appellants to the hilt and the learned trial Court was not justified in convicting them while basing upon such untrustworthy/ uncorroborated evidence, which even otherWise is full of material contradictions especially when neither the appellants were named in the crime report nor their body structures were mentioned therein, the improvements made by the prosecution witnesses of the occular account during the course of trial as well as, the material contradictions in the occular account, withholding the evidence of most natural witnesses, the fact that nothing was recovered during the course of investigation from either of the appellants coupled with the conclusion arrived at by the Investigating Officer during the course of investigation and conviction recorded by the learned trial Court in the circumstances is against all canons of law recognized for the dispensation of criminal justice. As per dictates of law benefit of every doubt is to be extended in favour of the accused. Moreover, it is golden principle of law that the Court may err in letting off 100 guilty but should not convict one innocent person on the basis of suspicion. Resultantly while setting aside the conviction and sentence recorded by the learned trial Court in terms of judgment dated 19-11-2009, Criminal Appeal No.483 of 2009 filed by Ayaz Khan and Waseem Ali Khan/appellants is ACCEPTED IN TOTO. Consequently they are ordered to be acquitted of the charge in case F.LR. No.439, dated 9-10-2009, offence under Sections 302, 34, P.P.C., registered at Police Station Wah Cantt, District Rawalpidi, and they are directed to be released forthwith if not required in any other case.
18. Murder Reference No.78/RWP of 2009 forwarded by the learned trial Court for confirmation of sentence of death inflicted upon Ayaz Khan and Waseem. Ali Khan/convicts fails, which is answered in NEGATIVE. Death sentence is NOT CONFIRMED.
19. As far as Criminal Revision No.227 of 2009 filed by Abdul Khaliq, complainant/petitioner is concerned, for the afore stated reasons, the same has no substance, which is accordingly dismissed.