' MANZOOR AHMAD MALIK, J.---This judgment shall decide Criminal Appeal No,1854 of 2009 titled as " Ghulam Yasin v. The State", Criminal Appeal No,534 of 2009 titled as "Ghulam Qasim v: The State", P.S.L.A No, 71 of 2009 titled as "Hail Ahmed Khan v. Muhammad Raman and 4 others", Criminal Revision No,407 of 2009 titled as "HO Ahmad Khan v. Ghulam Qasim and 2 others" and Murder Reference No,177 of 2009 titled as "State v. Ghulam Yasin" as all these matters have arisen out of the private complaint titled as "Hail Ahmad Khan v. Ghulam Yasin and others" filed by Ahrnad Khan complainant being dissatisfied with the investigation of case F.I.R. No,256/2006 dated 22-4-2006 offences under sections 302, 324, 148 and 149 P.P.C. Registered on his statement at Police Station Sadar Jhang, District Jhang.
2. Ghulam Yasin (appellant) in Criminal Appeal No 185-J of 2009 has filed this appeal against the judgment dated 16-4-2009, whereby, after having been tried by the learned Additional Sessions Judge Jhang in the above mentioned case, he was convicted, under sections 302(b), 324, 337-A(i), 337-A(ii), 337-F(i) and 337L(2) P.P.C. And sentenced as under:- "... For the foregoing facts, reasons and observations given above, the accused Ghulam Yasin is convicted under section 302(b), P.P.C. And sentenced to death as Tazir and to pay compensation of Rs,50,000 to the legal heirs of the deceased. In case of default he will further undergo 6 months simple imprisonment.
' The accused is also convicted under section 324, P.P.C. And sentence to 7 years, rigorous imprisonment and a fine of Rs,10,000. In case of default he will further undergo two mouths' simple imprisonment.
' The accused is also convicted under section 337-A(i), P.P.C. And sentenced to 1 years, rigorous imprisonment on three counts. He will be also liable to pay Daman of Rs 3000 total.
' The accused is also convicted under section 337-A(ii), P.P.C. And sentenced to 2 years', rigorous imprisonment and also to pay Arsh equal to 5% of the Diyat amount.
' The accused is also convicted under section 337-F(i), P.P.C. And sentenced to 6 months', rigorous imprisonment on seven counts. He will be also liable to pay Daman of Rs,7000 total.
' The accused is also convicted under section 337-L(2), P.P.C. And sentenced to 1 years, rigorous imprisonment on six counts and he will also pay Daman of Rs,6000.
' Through the same judgment, Ghulam Qasim (appellant) in Criminal Appeal. No, 534 of 2009 was convicted, under sections 302(b), 324, 337-A(i), 337-A(ii), 337-F(i) and 337L(2) P.P.C. And sentenced as under:-- "... He is convicted under section 302(b), P. P. C . And sentenced to life imprisonment as Tazir and to pay compensation of Rs,50,000 to the legal heirs of the deceased Ghulam Parid. In case of default he will further undergo six months simple imprisonment.
' The accused Ghulam Qasim is also convicted under section 324, P.P.C. And sentenced to seven years' rigorous imprisonment and also a fine of Rs,10,000, In case of default he will further undergo simple imprisonment for two months.
' The accused is also convicted under section 337-A(1), P.P.C. And sentenced to 1 years, rigorous imprisonment on three counts, He will be also liable to pay Daman of Rs,3000 total.
' The accused is also convicted under section 337-A(ii), P.P.C. And sentenced to 2 years', rigorous imprisonment and also to pay Arsh equal to 5 % of the Diyat amount.
' The accused is also convicted under section 337-F(i), P.P.C. And Sentenced to. 6 months', rigorous imprisonment on seven counts. He will be also liable to pay Daman of Rs,7000 total.
' The accused is also convicted under section 337-L(2j, P.P.C. And sentenced to 1 years, rigorous imprisonment on six counts and he will also pay Daman of Rs,6000.
' All the sentences were ordered to run concurrently. The appellants were also given benefit of section 382-B, Cr.P.C. The learned trial court has sent Murder Reference No,177 of 2009 for confirmation or otherwise of the sentence of death awarded to Ghulam Yasin (convict). Through the same judgment, Muhammad Ramzan, Khadim Hussain and Muhammad Aslam, co-accused of the appellants were acquitted of the charges while extending them benefit of doubt. Haji Ahmad Khan, complainant has filed P.S.L.A. No,71 of 2009 against their acquittal. Haji Ahmad Khan complainant has also preferred Criminal Revision No,407 of 2009 for enhancement of the quantum of sentence of imprisonment for life awarded to Ghulam Qasim respondent No,1 to the sentence of death and also for enhancement of the amount of compensation imposed upon Ghulam Qasim and Ghulam Yasin, respondents Nos.1 and 2.
3. Briefly, facts of the case, according to the F.I.R. (Exh.PG) recorded on the statement (Mark- CW2/A) of complainant Haji Ahmed Khan (P.W.4) are that he was resident of Mauza Maduki Chah Usmanwala and a cultivator. Yasin son of Hakim Ghagrana Syal resident of Mauza Maduki was is son-in-law, who on 10/11-4-2006 had got registered F.I.R. No,217/2006 offences under sections 452, 337-F(ii), 337-F(i), 337-A (i), 337-L(2), .148 and 149 P.P.C. At Police Station Saddar Jhang against complainant and his relatives whereas in the alleged occurrence, complainant and his daughter Razia Tabassam were injured. Cross version was got recorded by the complainant side. Due to interference of people of locality, Haji Lal Khan son of Haji Salehoon caste Gugrana resident of Mauza Jalalpur was appointed as an arbitrator and, both The parties went to the arbitrator on the previous night where, after negotiation, Haji ljaz son of Hamayoun caste Gagrana was appointed as "Agwanni". After the settlement, Yasin and Qasim both sons of Farid caste Gagrana residents of Chak No,480 JB, Khadim son of not known caste Mochi and Aslam son of not known caste Mochi residents of Chak No,480 JB left the place. After 20/25 minutes, complainant along with his son Ghulam Farid while riding a motorcycle and brother-in-law (sala) of complainant Taj Mehmood son of Muhammad Khan along with Ramzan son of Lal caste Gugra.Na resident of Chak No,480 JB while riding on other motorcycle left for their houses. At about 08:30 p.m, when complainant's side reached near pull! Situated close to Dhari of Allah Ditta son of Salehoon Gugrana within the jurisdiction of Mauza Jalalpur, suddenly, Yasin armed with hatchet, Qasim armed with hatchets Khadim and. Aslam armed with sows came there who were identified by complainant's side in the light of motorcycles. They intercepted the complainant's side. The assailants raised lalkara to teach a lesson to Ghulam Farid for quarreling on which Ramzan son of Lal caught hold of Taj Mehmood from back and Yasin inflicted hatchet blow from wrong side which hit complainant's son Ghulam Farid on backside of the head, and said Ghulam Farid fell down. In his falling position, Yasin (appellant) gave repeated blows which hit at the head and mouth of Ghulam Farid whereas Qasim gave hatchet blow on the person of Ghulam Farid which landed on the left leg, back and arm of Ghulam Farid. Aslam and Khadim also gave sota blows on the person of Ghulam Farid. Taj Mehmood was also injured by the assailants with rotas and hatchet blows which landed on the head, left, shoulder, left leg, right arm and back. Complainant beseeched the assailants and on his hue and cry, Allah Ditta son of Khan. Muhammad Gugrana resident of Mauza Maduki and Riaz son of Muhammad Gugrana resident of Gugrana came at the spot who witnessed the occurrence. The assailants decamped while raising lalkaras. The complainant side shifted both the injured to Civil Hospital, Jhang and obtained results of doctors. As the condition of Ghulam Farid was precarious, the doctors referred him to Allied Hospital, Faisalabad. The complainant side was shifting Ghulam Farid to Allied Hospital Faisalabad in an ambulance but he succumbed to the injuries.
4. Dilbar Hussain Inspector (CW.7) was posted at Police Station Seder, Jhang. On 22-4-2006, on receipt of information about the occurrence, he went to Civil Hospital Jhang and recorded the statement of complainant Ahmad Khan and handed over the complaint to Aslam constable for registration of case. Thereafter, he prepared injury statement (Exh.PD) and inquest report (Exh.PF/1) of Ghulam Farid (deceased). After preparation of document he left Aftab Constable at the hospital for "postmortem of deceased Ghulam Farid and thereafter went to the place of occurrence and inspected the spot. He prepared rough site plan of the place of occurrence (CW.1/A), took into possession the blood through cotton vide memo (Exh.PH). Thereafter he started search of the accused but failed to arrest them. He went to the hospital and recorded statement of Taj 'Mehmood injured (P.W.5). Aftab constable handed over to him last worn clothes of deceased (P.2 to P.4) which were taken into possession vide memo (Exh.CW.7/13). On 23-4-2006, he again summoned complainant party at the Police Station 'and initiated proceedings for arrest of accused. On 28-4-2006 he along with Muhammad All Patwari (CW.1) went to the place of occurrence who took rough notes of the place of occurrence and handed, over scaled site plan (Exh.CW1/A). On 1-5-2006 he arrested accused Ghulam Yasin, Ghulam Qasim and Ramzan. On the next day he obtained their physical remand. On 9-5-2006 Ghulam Yasin (appellant) made disclosure and allegedly led to the recovery of hatchet which was taken into possession vide memo (Exh.PG). Ghulam Yasin (appellant) was sent to judicial lock up. On 15-5-2006 both the parties were confronted and also produced before the DSP concerned and during the investigation no incriminating material was found against the accused Aslam, Khadim and Qasim and they were found not involved in the occurrence. During the investigation he found Ghulam Yasin, Habib and Ismail involved in the occurrence but the complainant due to relationship did not bring before him any incriminating evidence. Accused Ghulam Farid and Ramzan were also sent to judicial lock up. He moved discharge report of Ghulam Qasim (appellant) but the learned Magistrate did not agree to the report. He placed accused Qasim, Aslam and Khadim in Column No,2 of the report under section 173, Cr.P.0 while accused' Yasin and Ramzan were placed in. Column No,3,
5. Being dissatisfied with the Police investigation, the complainant filed a private complaint on 18- 7-2006 with almost the same allegations. Cursory evidence in the private complaint was recorded and the appellants as well as their co-accused were summoned to face the trial. Copies of the documents as required under section 265-C, Code of Criminal Procedure were provided to them and formal, charge under sections 302, 324, 148 and 149 P.P.C. Was framed against them on 16-11- 2006 to which they pleaded not guilty and claimed trial. In order to prove its case prosecution examined five witnesses whereas eight others were called by the learned trial court as court witnesses. Ocular account was furnished by Haji Ahmed Khan complainant (P.W.4) and Taj Mehmood injured (P.W.5). Dr. Tauseef Zafar (P.W.1) medically examined Taj Mehmood injured (P.W.5) and Ghulam Farid (deceased) in injured condition whereas Dr. Zafar Iqbal Patoana (P.W.2) conducted postmortem examination on the dead body of Ghulam Farid (deceased) and both these witnesses furnished the medical evidence. Ghulam Murtaza (P.W.3) witnessed the alleged recovery of hatchet (P.1) at the instance of Ghulam Yasin (appellant). Dilbar Hussain Inspector (CW.7) investigated the state case and while appearing before the learned trial court narrated the various steps taken by him during the course of investigation. Rest of the witnesses are formal in nature. Hall Ahmad Khan complainant gave up P.W. Zulfiqar being unnecessary vide statement dated 2-3-2007. He further gave up P.Ws. Allah Ditta and Riaz being unnecessary vide statement dated 28-7-2007 and after tendering in evidence report of Chemical Examiner (Exh.PK) with regard to blood stained cotton and report of Serologist (Ex.PK/1), the complainant closed the prosecution evidence vide statement dated 15-4-2008. Statements of the appellants and their co-accused were recorded under section 342, Code of Criminal Procedure on 29-4-2008 wherein they refuted all the prosecution allegations levelled against them. Ghulm Yasin (appellant) to the question as to why the case against him and why the P.Ws. Deposed against replied as under:-- "I have been falsely and baselessly involved in the case due to enmity. The' P.Ws., have deposed against me falsely and baselessly on account of enmity and The detail of enmity, ill-will and other reasons has been given by me in my answers to the questions Nos.2, 3 and 5, which may be read as part of answer to this question. Now it is imperative to reproduce questions Nos.2, 3 and 5, which are as under:- Q.No,2. Is it a fact that Mst. Kalsoom daughter of Haji Ahmad Khan complainant (P.W.4) was your wife and your co-accused are Gagrana by Caste and your relative while Muhammad Aslam and Khadim Hussain your co-accused are your close friends?
Ans: The real 'facts are that Mst. Kalsobm Akhtar daughter of Haji Ahmad Khan complainant, was my wife. In exchange, my sister Mst: Nasreen Akhtar was married with Ghulam Farid (deceased), the son of the complainant. Ghulam. Farid contracted another marriage in the year, 2005, with Mst: Nazia Daughter of Abid, my enemy, during the subsistence of his marriage with Mst. Nasreen Akhtar illegally and against the law and the rules on the subject. This was the third marriage of Ghulam Farid. I strongly protested thereon. The complainant forcibly restrained Mst: Kalsoom Akhtar, my wife, to come to my house. On 27-5-2005, I convened a Punchayat of the respectables of area at the Dera of Syed Javaid Akhtar Shah, Gaddi Nasheen of Derbar Hazrat Rodey Shah Bukhari. The complainant party persisted in their haughtiest and un reasonable conduct. Complainant Haji Ahmad Khan, his son Ghulam Farid. And Siddique, brothers-in-law Taj Mehmood and Islam, besides said Abid and his son Nazir etc.; launched murderous assault on me and also resorted to firing. Through police I got myself medically examined on 28-5-2005, but the respectables of brotherhood did not allow me to lodge criminal proceedings against the assailants at the behest of complainant. I produce certified copy of my MLR No,982/2005, dated 28-5-2005 (Ex.DN).
Deceased Ghulam Farid shunted out my sister, Mst. Kalsoom Akhtar from his house. She was putting up at my house. On 24-1-2006, I sent written divorce to my wife Mst. Kalsoom Akhtar and re-married on 27-1-2006. The complainant, his sons and brothers-in-law got extremely annoyed and they became thirsty of my blood.
' It is correct that accused Muhammad Ramzan and Ghulam Qasim are Gagrana by Caste and my relatives, but my relations with them are strained. They are more related to the complainant party.
So far as accused Khadim Hussain and Muhammad Aslam are concerned, they are not even acquainted with me, not so speak of their being friends of mine. I belong to Mauza Maddoky in Tehsil Jhang, whereas they reside in Chak No,480/JB, Tehsil Shorkot; with four villages in between.
They belong to different brotherhood.
' Q.No,3. Is it a fact that 10/11 days before this occurrence, there had been a fight between you and complainant 'party, whereupon you got a case registered against them, as complainant Haji Ahmad Khan and his daughter namely Mst. Razia Tabasum was also injured in that fight, so Haji Ahmad Khan brought counter-version before police and investigation of the said case was in progress?
' Ans: It is incorrect. The real state of affairs is that Mst. Kalsoom Akhtar my wife, did not want to get divorce from me, On 10-4-2006, she against the wishes of her father Haji Ahmad Khan, the complainant and other relatives, came to my house voluntarily of her own In my absence, when I was busy at Maloana Moor for getting my thresher Machine repaired. As :Mst. Kalsoom Akhtar had already been divorced by me, my mother and sister did not allow her to enter my house. I came back to my house at about mid-night. Complainant Haji Ahmad Khan, deceased Ghulam Farid, Siddique, the complainant's sons Mst. Razia Tabasum and Mst: Sumaira, his daughters, P.W., Taj Mehmood and Riaz, his brothers-in-law, and Allah Ditta, his son-in-law, armed with lethal weapons guns, hatchet and sotas etc; already sitting in ambush, launched murderous assault, on me in my house with the common object of eliminating me and they seriously injured me, my mother and sisters and ultimately abducted me. My 'sister informed the police on telephone. I got registered the case against the assailants vide F.I.R. No,217 dated 17-4-2006, in Police Station Saddar Jhang, which is pending in a competent Court. I submit my MLC No,707/2006, dated 11-4-2006, (Ex:DO)
' As regards the complainant's cross-version the same stood cancelled by the police being found a sheer concoction, forgery and fabrication. That was nowhere under investigation. That is no pending in any Court.
' Q.No,5. Is it a fact that Haji ljaz son of Hamayoun, Gagrana, was appointed as "Agvanee" and thereafter you along with your co-accused Ghulam Qasim, Muhammad Aslam, and Khadim Hussain went away from the Punchayat and after about 20/25 minutes the complainant along with his son Ghulam Farid at about evening time while riding on one motorcycle, whereas Taj Mehmood P.W' and accused Muhammad Ramzan boarded on another motorcycle. Accused Muhammad Ramzan was seated on the rear seat of Taj Mehmood P.W., whereas Haji Ahmad Khan complainant was seated on the rear seat of Ghulam Farid (deceased) and they left for their houses on motorcycles?
' Ans: It is totally incorrect and false.' The factual position is that, during the night between 10th/ 11th of April, 2006, the complainant party, had injured me seriously. Even on 2I-4-2006, I was admitted in the hospital for treatment inasmuch as the I.O. Javaid khizar A.S.I. Had recorded my statement on that day in the hospital. I request that the record of investigation of that case may kindly be seen as a copy of the relevant proceedings has not been provided to me by the police despite efforts.
Even before 21-4-2006, a date was fixed for the Punchayat but I had been unable to attend due to my injuries and the resultant incapacitation. On 21-4-2006, I, on being forced by the respectable, attended the Punchayat in the company of my first cousin Habib son of Lal. From the complainant's side, there had come in the Punchayat Haji Ahmad Khan; his friends Haji Abdul Majeed Heraj and Ghulam Abbas, Baloch, his son deceased Ghulam Farid and brother-in-law Taj Mehmood P.W.
Many other respectables of the Maga were also present, who had been called by the complainant and P.W. Taj Mehmood Accused Muhammad Ramzan was also among them.
' The complainant, his son Ghulam Farid deceased, and P.W., Taj Mehmood adopted extremely aggressive, and objectionable conduct. They held out to me threats of dire consequence. They did not mend their ways despite warning of the arbitrator. Having been disappointed and apprehensive of harm at the hands of the said persons. I left the Punchayat with my cousin, said Habib -son of Lal on motor-cycle. One Ismail son of Shahadat, who is resident of Abadi near the Dera of Haji 'Lal Khan, got the lift and also sat'," on my motorcycle. It was extreme darkness. We had to stop at the Pully situate at .Distance of 1-1/2 Furlongs from the Dera of Haji Lal Khan, arbitrator, opposite to the Abadi of Khan Beg, Gagrana, on account of some problem having been developed without motorcycle. I opted to delay further for the reasons: firstly, due to my complete incapacitation to travel further due to my injuries especially the injuries to my right eye, right eye ball, left chest etc, on the one hand, and extreme darkness and unfavourable weather, on the other; secondly, the obvious and imminent danger of being waylaid, attacked and eliminated by the complainant party, pursuant to their previous conduct and also their recent threats of dire consequences in the Punchayat, as, in the meanwhile, Haji Ahmad Khan, the complainant, along with Haji Abdul Majeed Heraj had over taken and passed by us on a motor-cycle; and thirdly, to await my brothers-in-law Shoukat etc; who had been coming behind from the Dera of Haji Lal Khan, the arbitrator, on their Suzuki rickshaw to take me along. It is explained that I am all alone, poor and weak, while the complainant party is a big man power, physically, financially and politically strong and the, tatters had subjected me to physical violence whenever they so wished.
' Accused Ghulam Qasim, Khadim Hussain and Muhammad Aslam never participated the Punchayat and neither there was thus any question of their leaving the Punchayat with me. As above stated, complainant Haji Ahmad Khan, along with Haji Abdul Majeed Heraj, had come on a motorcycle at the Pully of Khan beg Gagrana and they had passed by us seeing us repairing the motorcycle. Some time after them, there had come at the spot accused Muhammad Ramzan with P.W., Taj Mehmood and Ghulam Abbas Baloch with deceased Ghulam Farid. They stopped back at some distance from the Puny perceiving our presence at the Pully. P.W., Taj Mehmood that the man at the Pully were there to give him beating. Since it was a dark night and there was at all no light of any sort at the site, nothing was visible even from the shortest distance. Accused Muhammad Reiman came towards us. Considering that he had come with my opponents and was thus coming to attack us, Ismail son of Shahadat gave him a Danda blow, which rested on the eye brow of his left eye. Accused Raman fell down on the metalled road after having been injured and got unconscious.
' Thereafter P.W., Taj Mehmood and deceased Ghulam Farid seized me from neck and, felled me down and started causing to me the injuries. P.W., Taj Mehmood, with the view to kill me started pressing my throat. I entreated Habib son of Lal and Ismail s/o Shahadat to save my life, who with the only intent of rescuing me gave certain Danda blows to Taj Mehmood and Ghulam Farid and thus saved me. On my hue and cry, there came many persons; men and women, from the abadi.
Of Khan Beg Gagrana, who interened?. P.W., ' Taj Mehmood and, deceased Ghulam Ghulam Farid had seriously injured under:- me and caused injuries on my head, throat and other parts of my.. Body. The police did not get me medically examined despite my repeated requests, all of which was on the pressure of the complainant. I did not cause my injury either to deceased Ghulam Farid or P.W., Taj Mehmood because I was already too incapacitated and helpless, on account of my injuries. I had got neither any hatchet nor anything else..
' Neither accused Ghulam Qasim nor accused Khadim Hussain and Muhammad Aslam participated the Punchayat nor they came with me. There was thus absolutely no question of their being, present with me at the 'scene of occurrence.
' Accused Ghulam Qasim happened to come at the place of occurrence after the incident was over after getting free from his day's work in his land, while on way back home to his house in Chak No,480/GB.
' The complainant party tried, with the connivance of the police, to shift the venue of crime from the Pully of Khan Beg Gagrana to the Pully near the Dhari of Allah Ditta son of Salehoon, Gagrana, dishonestly and with mala fides and ulterior ends, which speaks of the falsity of their version as put up in the case and fiction and concoction set-right from the very outset.
' To the question as to why the case against him and why the P.Ws. Deposed against, The complainant party has incorrectly, unjustly and baselessly involved'me in the case with mala fides and nefarious ends for the sole reason of being cousin of accused Ghulam Yasin. In this connection the police joined hands with the complainant -party for ulterior motives. Complainant Haji Ahmad Khan is the real father and P.W., Taj Muhammad is the real maternal uncle of deceased Ghutam ,Farid. Both of them closely related inter se. They are interested and partisan and inimical witnesses. They have perpetrated blatant falsehood and lie in the case to holster up and sustain their concocted story in the case. They are inimical toward us. No independent witness has been examined in the case. I was not present in the Punchayat, and neither knew anything. There was thus no question of my going away from the Punchayat in The Company of accused Ghulam Yasin.
I was not present at the eventful time at the place of occurrence. There was at Pall no question or occasion of any participation in the occurrence in any manner. The fact of the matter is that I remained busy in harvesting the wheat crop in my lands since dawn to late night. While on way back home late in the night after my day's 'work, when happened to pass by the places of occurrence, I came to know of the happening. Till then the incident was all over. I forthw-ith informed Haji Lal Khan, the arbitrator, thereabout at his dera, falling enroot my chak, and then went away. During the investigation, I produced formidable defence by examining scores of persons of the vicinity and respectable of the area before the Investigating Officer and then before the D.S.P.
And S.P (Investigation). They all found me totally innocent and unconnected in the case. They moved for my discharge from the case in the circumstances. They found the prosecution allegation against me as totally false and baseless."
' Both the appellants did not appear as, their own witnesses in disproof of the prosecution allegations as provided under section 340(2) Code of Criminal Procedure. They opted to produce evidence in their defence. However, vide separate statements recorded on 10-2-2009, both the appellants stated that they did not want to produced any evidence in their defence.
6. After conclusion of the trial, the learned trial court convicted and sentenced the appellants as detailed above. Hence, these appeals and Murder Reference. Through the same judgment, Muhammad Ramzan, Khadim Hussain and Muhammad Aslam, co-accused of the appellants were acquitted of the charges while extending them benefit of doubt. Haji Ahmad Khan, complainant has filed P.S.L.A. No,71 of 2009 against their acquittal. Haji Ahmad Khan complainant has also preferred Criminal Revision No,407 of 2009 for enhancement of the quantum of sentence i,e, imprisonment for life awarded to Ghulam Qasim respondent No,1 to the sentence of death and also for enhancement of the amount of compensation imposed upon Ghulam Qasim and Ghulam Yasin, respondents Nos.1 and 2.
7. Learned counsel for appellants, in support of both these appeals, contend that the appellants have falsely been implicated in this case; that there is a delay of fourteen hours in reporting the matter to the Police without there being any explanation in this respect either by the complainant or Taj Mehmood injured (P,W.6); that in the MLRs (Exh.PA and Exh.PC) of Taj Mehmood and Ghulam Farid, respectively, it is clearly mentioned that they were brought to the District Headquarters Hospital Jhang by the Police and eveti Dr. Tauseef Zafar (P.W.1) who medically examined them stated before learned trial court that they were medically examined by him and Aftab Ahmad constable received the MLRs which clearly suggests that the incident came into the knowledge of the Police even before medical examination of both injured but no case was registered; that it is case of the complainant that Ghulam Farid (deceased) was initially shifted to District Headquarters Hospital Mang and because of his precarious condition he was referred to Allied Hospital Faisalabad but Dr. Tauseef Zafar (P.W.1) who medically examined Ghulam Farid, injured condition, did not state so while appearing before the learned trial court nor any such remarks were noted in the MLR (Exh.PC) of Ghulam Farid (deceased) rather the said doctor (P.W.1) has stated in his examination-in-chief that he (Ghulam Farid) was admitted in the ward; that it is not the case of the prosecution that Taj Mehmood injured (P.W.5) remained admitted = in the hospital rather Taj Mehmood injured (P.W.5) while appearing before the learned trial court in his examination-in-chief stated that condition of Ghulam Farid deteriorated precariously, he was referred to the Allied Hospital Faisalabad, they put him in the ambulance, on the way to Allied Hospital Faisalabad, Ghulam Farid succumbed to the injuries, consequently they brought back the dead body of Ghulam, Farid to the DHQ Hospital Mang, which clearly suggests that Taj Mehmood injured (P.W.5) was' not incapacitated to report the crime to the Police but he did not make any effort to set the machinery of law in motion; that in the F.I.R. As well as the private complaint it is the case of the complainant that both the appellants were armed with hatchets, though at the start of episode the complainant averred that Ghulam Yasin (appellant) inflicted a blow by the wrong side of hatchet which hit Ghulam Farid (deceased) at the backside of head; that thereafter several hatchet blows were attributed to Ghulam Yasin (appellant) on the head and mouth of Ghulam Farid (deceased); that similarly repeated hatchet blows on the person of Ghulam Farid (deceased) were attributed to Ghulam Qasim as well which landed on his left leg, back and arm; that Dr. Tauseef Zafar, who medically examined Taj Mehmood injured (P.W.5) and Ghulanr Farid (deceased) in injured, condition, while appearing before the learned trial court as P.W.1 stated in unequivocal terms that all the injuries were caused by blunt means and Dr.. Zafar Iqbal Patoana (P.W.2) who conducted post mortem examination on the dead body of Ghulam Farid also stated that all the injuries on the person of Ghulam Farid were caused by blunt weapon; that realizing the same both the witnesses of ocular account, while appearing before the learned trial court, made dishonest improvements in order to bring the ocular account in line with the medical evidence and stated that injuries. On the person of Ghulam Farid (deceased) and Taj Mehmood injured (P.W.5) were caused by the wrong side of hatchets, they were duly confronted with their previous statements and the dishonest improvements were brought on the record; that no recovery of hatchet was effected at the instance of Ghulam Qasim (appellant) rather he was found innocent during the' course of investigation, a discharge report was also moved to the extent of Ghulam Qasim (appellant) but the same was not agreed to by the learned Magistrate and thereafter his name was placed in Column No,2 of the report under section 173, Code of Criminal Procedure; that alleged recovery of hatchet (P.1) at the instance of Ghulam Yasin (appellant) is inconsequential as no report . Of Chemical Examiner or Serologist qua the hatchet, is available on the file and moreover no evidence has been brought on record that the hatchet was ever deposited with the Moharrar of the Police Station for its safe custody in the malkhana; that as per prosecution case the occurrence took place at a deserted place i,e, pulls. (bridge) close to dhari of Allah Ditta son of Salehoon and it is the case of both the witnesses of ocular account that they witnessed the occurrence in the light of motorcycles but no motorcycle was shown in the scaled site plan (Exh.CW.1/A); that version of Ghulam Yasin (appellant) disclosed by him in his statement recorded under section 342, Code of. Criminal Procedure and put to the witnesses of the ocular account appears to be more probable and convincing in the circumstances of the case and gets support from the prosecution's own case; that viewing from all angles the prosecution case, is doubtful in nature and the appellants deserve acquittal.
8. On the other hand, learned Deputy Prosecutor-General, assisted by learned counsel for the complainant, opposes these appeals on the grounds that delay in reporting the crime to the Police is not material because in this incident two persons namely' Ghulam Farid and Taj Mehmood were grievously injured out of whom one namely Ghulam Farid died later on; that it is in the statements of both the, witnesses of ocular account that Ghulam Farid (deceased) because of his precarious condition was referred to Allied Hospital Faisalabad and before reaching there he succumbed to the injuries and thereafter his deadbody was brought back in District Headquarters Hospital Mang where the Police reached and the crime was reported; that both the witnesses of ocular account had no serious enmity to false depose against the appellants; that there is no material contradiction in the medical evidence and the ocular account as the hatchet can be used by both the sides; that the ocular account was furnished by Haji Ahmad Khan complainant (P.W. 4) who is father of Ghulam Farid (deceased) and Taj Mehmood injured (P.W.5) who had seventeen injuries on his person and it is not the case of defence that the injuries on the person of Taj Mehmood were caused by friendly hands; that motive has also been admitted by the defence; that if both the versions i,e, version of the prosecution and that of the defence are put in juxtaposition, the prosecution case inspires confidence and rings true; that the prosecution has successfully brought home guilt against both the appellants to the hilt and there is no merit in these appeals.
9. In support of P.S.L.A. No,71 of 2009, learned counsel for the complainant/ petitioner contends that Muhammad Ramzan, Khadim Hussain and Muhammad Aslam, respondents Nos.1 to 3 actively participated in the occurrence wherein one Ghulam Farid was brutally murdered whereas Taj Mehmood (P. W.5) was grievously injured but they were acquitted by the learned trial court without any justification, therefore, the respondents Nos,1 to 3 be also convicted and sentenced, accordingly.
10. In support of Criminal Revision No,407 of 2009, learned counsel for complainant/petitioner contends that the prdsecution fully proved its case against Ghulam Qasim respondent No,1; that there were no extenuating circumstances .In favour of said Ghulam Qasim but the sentence of imprisonment for life was wrongly awarded to him, therefore, the sentence of Ghulam Qasim respondent No,1 , be enhanced and he be also awarded the sentence of death which is the normal penalty for Qad-e-Amd. Further contends that compensation amount of Rs,50,000 (rupees fifty thousand only) awarded by the learned trial court payable to the legal heirs of the deceased does not commensurate with the loss suffered by the complainant's side, therefore, the amount of compensation be enhanced adequately.
11. We have heard learned counsel for the appellants as well as the learned Deputy Prosecutor General for the State assisted by the learned counsel for the complainant at a considerable length and have also gone through the record with their able assistance.
12. Admittedly it is a case of two versions. One disclosed by the prosecution in the F.I.R., private complains and brought before the learned trial court through the statements of the prosecution witnesses and the other disclosed by Ghulam Yasin (appellant) in his statement recorded under section 342, Code of Criminal Procedure and put to the witnesses of the prosecution in their cross examination. In such-like situation, the Court is required to first analyze the prosecution version in order to ascertain its truthfulness or 'otherwise. In this respect, we are guided by the judgment of the Hon'ble Supreme Court of Pakistan passed in the case reported as "Ashiq Hussain v. State' (PLD 1994 SC 879) wherein, at page 883., the Hon'ble Supreme Court has been pleased to observe as under:-- "9. .The proper and the legal way of dealing with a criminal case is that the Court should first discuss the prosecution case/evidence in order to come to an independent finding with regard to the reliability of the prosecution witnesses, particularly the eyewitnesses and the probability of the story told by them, and then examine the statement of the accused under section 342,. Cr.P.C., statement under section 340(2), Cr.P.C. And the defence evidence. If the Court disbelieves/rejects/ excludes from consideration the prosecution evidence, then the Court must accept the statement of the accused as a whole without scrutiny. If the statement under section 342, Cr.P.C. Is exculpatory, then he must be acquitted. If the statement under section 342, Cr.P.C. Believed as a whole, constitutes some offence punishable under the Code/law, then the accused should be convicted for that offence only. In case of counter-versions, if the Court believes prosecution evidence and is not prepared to exclude the 'same from consideration, it will not straightaway convict the accused but will review the entire evidence including the circumstances appearing the case at close before reaching at a conclusion regarding the truth or falsity of the defence plea/version. All the factors favouring belief in the accusation must be placed in juxtaposition to the corresponding factors favouring the plea in defence and the total effect should be estimated in relation to the questions, viz., is the plea/version raised by the accused satisfactorily established by the evidence and circumstances, appearing in the case? If the answer be in the affirmative, then the Court must accept the plea of the accused and act accordingly. If the answer to the question be in the negative, then the Court will not reject the defence plea as being false but will go a step further to li find out' whether or not there is yet a reasonable possibility of defence plea/version being true. If the Court finds that although the accused has failed to establish his plea/version to the satisfaction of the Court but his plea might reasonably be true, even then the Court must accept his plea and acquit or convict him accordingly."
' The above view of the learned apex court of the country has been reiterated in another judgment reported as "Amin Ali v. The State" (2011 SCM R 323), therefore, following the principles settled by the Hon'ble Supreme Court of Pakistan in such like situation, we will first, examine the case of the prosecution.
13. Case of the prosecution has been discussed in detail in para 3 above. The gist of the same is that Ghulam Yasin (appellant) had got registered F.I.R. No,217/2006 offence under sections 452, 337-F(ii), 337-F(i), 337-A (i), 337-L(2), 148 and 149 P.P.C. At Police Station Saddar Jhang against complainant and his relatives. Cross-version was got recorded by the complainant side. One Haji Lal Khan was appointed as an arbitrator and both the parties went to the arbitrator on the previous night where, after negotiation, Haji Ijaz was appointed as Agwanni. After the settlement, Yasin, Qasim, Khadim and Aslam left the place. After 20/25 minutes, complainant along with his son Ghulam Farid while riding a motorcycle and brother-in-law (sala) of complainant Taj Mehmood along with Ramzan while riding on the other motorcycle left for their houses. At about 8-30 p.m, when complainant's side reached near pulli situated close to Dhari of Allah Ditta, suddenly, Yasin armed with hatchet, Qasim armed with hatchet, Khadim and Aslam armed With sotas came there who were identified by compiainant's side in the light of motorcycles. They intercepted the complainant's side and raised lalkara to teach a lesson to Ghulam Farid for quarreling. Ramzan caught hold of Taj Mehmood from back and Yasin inflicted hatchet blow from wrong side which hit Ghulam Farid on backside of the head and said Ghulam Farid fell down. In his falling position, Yasin (appellant) gave repeated blows which hit at the head and mouth of Ghulam Farid whereas Qasim gave hatchet blow on the person of Ghulam Farid which landed on his left leg, back and arm of Ghulam Farid. Aslam and Khadim also gave sota blewos on the person of Ghulam Farid. Taj Mehmood was also injured by the assailants with sotas and hatchet blows which landed on the head, left shoulder, left leg, right arm and back.
14. It was stressekhard by the learned counsel for Ghulam Qasim (appellant) that he was found innocent during the investigation, which shatters the veracity of prosecution case. It is correct that the said appellant was found innocent in the investigation. Discharge report to his extent was prepared and moved to the learned Magistrate but the same was not agreed to by the learned Magistrate and name of Ghulam Qasim (appellant) was placed in Column No,2 of the challan as Dilber Hussain Inspector (CW.7) has stated so while appearing before the learned trial court. But this argument of the learned counsel for the appellant is misconceived because by now it is well- settled that opinion of police qua innocence or guilt of an accused is inadmissible in evidence, therefore, Ghulam Qasim (appellant) cannot seek acquittal on the Police opinion. A reference in this respect may be made to the case of "Muhammad Ahmad (Mahmood Ahmed) and another v.
The State" (2010 SCM R 660) wherein, at page 676, the Hon'ble Supreme Court of Pakistan was pleased to observe as under:-- "37. ...It may be mentioned here, for the benefit and guidance of all concerned, that determination of guilt or innocence of the accused persons Was the exclusive domain of only the Courts of law established for the purpose and the said sovereign power of the Courts could never be permitted to be exercised by the employees of the police department or by anyone else for that matter. If the tendency of allowing such-like impressions of the Investigating Officers to creep into the evidence was not curbed then the same could lead to disastrous consequences. If an accused person could be let off or acquitted only because the Investigating Officer was of the opinion that such an accused person was innocent then why could not, on the same principle, another accused person be hanged to death only because the Investigating Officer had opined about his guilt..."
15. This incident as per F.I.R. (Exh.PG/1) took place on 21-4-2006 at about 08:30 p.m. Near pally (bridge) situated close to the dhari of Allah Ditta son of Salehoon within the territorial limits of mama Jalalpur in the jurisdiction of Police Station Sadar Jhang, District Jhang. Matter was reported to the Police on the next day i,e, 22-4-2006 at 10.30 a.m at Civil Hospital Jhang where the complainant made a statement (Mark CW/A) on the basis thereof formal F.I.R. Was recorded on the same day at 10.45 a.m. Vide rapt No,4. Therefore the first and foremost question before us is whether there was any deliberate and conscious delay in reporting the matter to the Police. In the F.I.R., private complaint and before the learned trial court, it is the case of the prosecution that Ghulam Farid and Taj Mehmood injured (P.W.5) were shifted to DHQ Hospital Jhang. Because of his precarious condition, Ghulam Farid was referred to Allied Hospital Faisalabad and before reaching there he succumbed to the injuries. We have perused the statement of Dr. Tauseef Zafar (P.W.4) who medically examined Ghulam Farid (deceased) and Taj Mehmood injured (P.W.5). He has not stated anywhere that he referred Ghulam Farid to Allied Hospital Faisalabad and even it is not so mentioned in his MLR (Exh.PA). Rather the said doctor (P.W.1) stated in his examination-in-chief that Ghulam Farid was admitted in the ward. Therefore, the very reason assigned by the complainant for not reporting the crime to the Police with due promptitude is belied by the prosecution' s own evidence L e. Statement of the doctor. Both the injured were examined in the said hospital before 12.00 (midnight) but none approached the Police for registration of F.I.R. Before 10.30 a.m when the Police reached the hospital on its own.
16. So far as the other witness of ocular account namely Taj Mehmood injured (P.W.5) is concerned, though there were injuries on his person but there is nothing on the record that he was admitted in the hospital and was not in a position to report the crime to the Police. While appearing before the learned trial court he has stated that condition of Ghulam Farid deteriorated precariously, he was referred to the Allied Hospital Faisalabad, they put him in an ambulance but on the way to Allied Hospital Faisalabad, Ghulam Farid succumbed to the injuries and they brought back the dead body of Ghulam Farid to the DHQ Hospital Jhang.. Following portion of his examination-in-chief is relevant, which is reproduced as under:-- "The condition of Ghulam Farid deteriorated. Precariously. He was referred to the Allied Hospital Faisalabad. We put him in the Ambulance. On way to Allied Hospital Faisalabad, Ghulam Farid succumbed to the injuries. Consequently we brought back the dead body of Ghulam Farid to the DHQ Hospital Jhang."
' The above extract from the examination-inchief of Taj Mehmood injured (P.W.5) clearly suggests that he was not incapacitated and could report the crime to the Police but no, such effort was made by this witness.
17. There is another aspect of the case. Taj Mehmood injured (P.W.5) was medically examined on 21-4-2006 at 11.30 p.m whereas Ghulam Farid was medically examined on the same night at 11.50 p.m. In the MLRs (Exh.PA and Exh.PC) of Taj Mehmood injured (P.W.5) and Ghulam Farid (deceased) it is clearly mentioned that both these injured were brought by the Police and docket of both the injured was presented by Aftab Ahmad constable 1416/C. Following portion of the cross- examination conducted on Dr. Tauseef Zafar (P.W.1) is relevant which is reproduced as under:- "...It is correct that both Taj Mehmood and Ghulam Farid, the injured persons were brought by FC/Aftab Ahmad 1416 for their medical examination. They were brought to the hospital through police docket No, 20 dated 21-4-2006. It is correct that after the medical examination of both the examinees, copies of the MLRs were received by FC Aftab Ahmad under his signatures on the MLC register..."
' The above extract of the cross examination of the doctor belies the stance of the complainant that he took Taj Mehmood (P.W.5) and Ghulam Farid (deceased) to the hospital for medical treatment and further establishes the fact that this incident was in the notice of the Police before the medical examination of both the injured as they were examined after issuance of docket but even then no case was registered. Therefore, the inordinate delay of fourteen hours in reporting the crime to the Police creates serious dents in the prosecution story and shatters the presence of the complainant at the place of occurrence besides placing a question mark on the credibility of the testimony of injured Taj Mehmood (P. W .5).
18. It is the case of complainant in the F.I.R. As well as the private complaint that Ghulam Yasin and Ghulam Qasim (appellants) were armed with hatchets. Though at the start of story the complainant averred that Ghulam Yasin (appellant) inflicted a blow by the wrong side of hatchet which hit Ghulam Farid (deceased) at the backside of head, but thereafter several hatchet blows were attributed to Ghulam Yasin (appellant) on the head and mouth of Ghulam Farid (deceased).
Similarly repeated hatchet blows on the person of Ghulam Farid (deceased) were also attributed to Ghulam Qasim which landed on his left leg, back and arm. Dr. Tauseef Zafar who medically examined Taj Mehmood injured (P.W.5) and Ghulam Farid (deceased), in injured condition, while appearing before the learned trial court as P.W. I stated in unequivocal terms that all the injuries Were caused by blunt means. Even the doctor (P.W.2) who conducted post mortem examination on the dead body of Ghulam Farid while appearing before the learned trial court stated that' all the injuries on the person of the deceased were caused by blunt weapon. Realizing the same both the witnesses of ocular account, while appearing before the learned trial court, made dishonest improvements in order to bring the ocular account in line with the medical evidence and stated that injuries on the person of Ghulam Farid (deceased) and Taj Mehmood injured (P.W.5) were caused by the appellants with the wrong side of hatchets. They were duly confronted with their previous statements and the dishonest improvements were brought on the record. Following portion of the cross-examination conducted on Haji Ahmad Khan complainant (P,W.4) is relevant, which reproduced as under:-- "...I had got it written in the F.I.R. Exh.PG and the complaint Exh.PJ that accused Yaseen had given a number of blows (with the exception of the first blow) with the wrong side of the hatchet to deceased Ghulam Farid. (confronted with the F . I R Exh.PG and the complaint Exh.PJ wherein although there is the specification about the first blow having been with the wrong side of the hatchet but there is no mention if the remaining other blows by accused Yaseen to deceased Ghuam Farid were with the wrong side of the hatchet, but there is in fact no specification with regard to those blows, whether they were with the right side or the wrong side of the hatchet. I had got it written in the F.I.R. Ex.PG, the complaint Ex.PJ and my preliminary statement dated 7-9-2006 Ex.DB before this Hon'ble court that accused Qasim had inflicted blows on the person of deceased Ghulam Farid with the wrong side of the hatchet. (confronted not so recorded. No specification about the side of hatchet whether right or wrong..."
' Similarly following portion of the cross-examination conducted .,on Taj Mehmood (P.W.5) is relevant, which is also reproduced as under:-- "...I had got recorded my statement in preliminary inquiry in the private complaint with the learned Magistrate. I had got it written in my preliminary inquiry that accused Ghulam Qasim had inflicted a blow with wrong side of the hatchet on the shoulder of Ghulam Farid deceased, confronted with Ex,DD, not so recorded. I have got written in my said statement that all the four accused with their respective weapons also caused injuries on my face, confronted with Ex.D.D, not so recorded. I had not written in my preliminary statement that all the four accused with their respective weapons also caused injuries on my both shoulders, instead the injury is mentioned on the left shoulder. It is correct that I had not stated in my preliminary statement Ex.DD as to where the said blow with the wrong side of hatchet of Ghulam Yaseen rested on Ghulam Farid deceased or where the third and fourth and fifth blows of accused Yaseen landed on the body of the deceased. It is correct that I had not stated the number of blows caused by the accused Ghulam. Yaseen on Ghulam Farid deceased. It is correct that I have not specified in my preliminary statement that where the second blow of accused Ghulam Qasim landed on the body of deceased Ghulam Farid or where the third blow of accused Ghulam Qasim rested or where the 3rd, 4th and 5th blow of accused Ghulam Qasim fell on the body of Ghulam Farid deceased so on so forth. It is correct that I have not stated in my said statement the number of blows/injuries caused by Ghulam Qasim on the body of deceased. It is correct that I had not stated in my said statement the number of injuries blows caused by accused Ghulam Yaseen on my body, as well as seats of the injuries. It is correct that I had not specified in my said preliminary statement Ex.DD as to where the second third, fourth, so on and so forth blows of accused Ghulam Yaseen rested on the body of deceased Ghulam Farid.. It is correct that I had not specified the number of injuries caused to me by Ghulam Qasim accused in my said preliminary statement. It is correct' that I have not specified in my said preliminary statement as to where the first, the second, the third, the fourth, the fifth so on so forth blow of accused Ghulam Qasim landed on my body. It is correct that I have not stated in my said preliminary statement the number of injuries individually caused by accused Khadam and Muhammad Aslam as well as the seats of injuries either on my person or on the person of deceased Ghulam Farid. It is correct that I have not specified in my said statement as to where the first, second, third, fourth, fifth so on and so forth, inflicted by accused Khadam and Aslam rested either on my body or on the body of the deceased. It is correct that I did not specify anywhere the total number of injuries sustained by me or by deceased Ghulam Farid during the occurrence at the place of occurrence. It is also incorrect to suggest that I made improvements and suppressed the true facts dishonestly and with mala fide intention..."
' We are mindful of the fact that Taj Mehmood (P.W.5) is injured witness but the injuries on his person do not mean that he uttered the whole truth. We may refer here the case of "Amin Ali and another v. The State" (2011 SCM R 323) wherein, the Hon'ble Supreme Court of Pakistan, at page 331, observed as under:- - "12. Certainly, the presence of the injured witnesses cannot be doubted at the place of incident, but the question is as to whether they are truthful witnesses or otherwise, because merely the injuries on the persons of P.Ws. Would not stamp them truthful witnesses..."
' It is obvious that these dishonest improvements were made by the complainant and injured eye- witness to bring their case in line with the medical evidence. It creates doubts qua the veracity of witnesses of the ocular account. It is well-settled by now that when a witness improves his statement to strengthen the prosecution case and the moment it is concluded that the improvement was made deliberately and with mala fide intention the testimony of such witness does not remain reliable. While holding so we are fortified by the dictum of law by the Hon'ble Supreme Court of Pakistan in the cases, reported as "Muhammad Rafique and others v.' The State and others" (2010 SCM R 385) and "Syed Saeed Muhammad Shah and another v. The State" (1993 SCM R 550). Seeking guidance from the above judgments of the apex court we hold that the evidence of Haji Ahmad Khan complainant (P.W.4) and Taj Mehmood injured (P.W.5) is not reliable.
19. Medical evidence damages the prosecution case instead of advancing it as at the start of story the complainant averred that Ghulam Yasin (appellant) inflicted a blow by the wrong side of hatchet which hit Ghulam Farid (deceased) at the backside of head but thereafter several hatchet blows were attributed to Ghulam Yasin (appellant) on the head and mouth of Ghulam Farid (deceased). Similarly repeated hatchet blows on the person of Ghulam Farid (deceased) were also attributed to Ghulam Qasim which landed on his left leg, back and arm. Dr. Tauseef Zafar who medically examined Taj Mehmood injured (P.W.5) and Ghulam Farid (deceased), in injured condition, while appearing before the learned trial court as P.W.1 stated in unequivocal terms that all the injuries were caused by blunt means. Similarly Dr. Zafar Iqbal Patoana (P.W.2) who conducted post mortem examination on the dead body of Ghulam Farid (deceased) while appearing before the learned trial court also stated that all the injuries were caused by blunt weapon.
20. It is the case of the prosecution, in the F.I.R., private complaint and before the learned trial court that both the appellants were armed with hatchets. Nothing was recovered from Ghulam Qasim (appellant). Discharge report to his extent was prepared and presented before the learned Magistrate but the same was not agreed to by the learned Magistrate and name of Ghulam Qasim (appellant) was placed in column No,2 of the report under section 173, Code of Criminal Procedure.
Recovery of hatchet at the instance of Ghulam Yasin (appellant) is inconsequential as no report of Chemical Examiner or Serologist qua the hatchet is available on the file and moreover no evidence has been brought on record that the hatchet was ever deposited with the Moharrar of the Police Station for its safe custody in the malkhana.
21. As per prosecution case the occurrence took place at a deserted place i,e, pully. (bridge) close to dhari of Allah Ditta son of Salehoon and it is the case of the complainant and P.W.5 that they witnessed the occurrence in the light of motorcycles. Though it is mentioned that at points 1 and 2, the complainant's side reached on motorcycles at the spot but no motorcycle was shown in the scaled site plan (Exh.CW.1/A).
22. No specific motive was alleged by the complainant, in the F.I.R., private complaint or before the learned trial court. However, it is the case of the prosecution that the appellants and their co- accused raised lalkara to teach a lesson to Ghulam Farid for quarreling. Before the learned trial court the complainant stated that the accused shouted a lalkara that they would teach a lesson for the previous fight. Taj Mehmood injured (P.W.5), however, stated that all the accused raised lalkara that Ghulam Farid should be taught a lesson for fighting with Yasin (appellant). It is well- settled by now that motive is a double-edged weapon and in the peculiar circumstances of the instant case, motive alleged by the prosecution could be a reason for false involvement of the appellants due to previous enmity between the parties.
23. We have examined the prosecution case and are of the considered view that the prosecution has failed to connect the appellants with the commission of crime. In "Ayub Masih v. The State" (PLD 2002 SC 1048), at page 1056 the hon'ble Supreme Court has been pleased to observe as under : - "...It is hardly necessary to reiterate that the prosecution is obliged to prove its case against the accused beyond any reasonable doubt and if it fails to do so the accused is entitled to the benefit of doubt as of right. It is also firmly settled that if there is an element of doubt as to the guilt of the accused the benefit of that doubt must be extended to him. The doubt of course must be reasonable and not imaginary or artificial. The rule of benefit of doubt, which is described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". In simple words it means that utmost care should be taken by the Court in convicting an accused. It was held in The State v. Mushtaq Ahmad (PLD 1973 SC 418) that this rule is antithesis of haphazard approach or reaching a fitful decision in a case. It will not be out of place to mention here that this rule occupies a pivotal place in the Islamic Law and is enforced rigorously in view of the saying of the Holy Prophet (p.b.u.h) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent."
24. So far as the defence plea taken by Ghulam Yasin (appellant) in his statement under section 342, Code of Criminal Procedure and put to the witnesses of the ocular account, reproduced in para. 5 ante, is concerned, since the prosecution evidence is doubtful in nature, therefore, there is no need to discuss the same as the same is exculpatory in nature.
25. Seeking guidance from the dictum of law laid down by the apex court in Ayub Masih case (supra), both these appeals are allowed. Conviction and sentence awarded to the appellants vide judgment dated 16-4-2009 passed by the learned. Trial court is set aside and the appellants are acquitted of the charge framed against them. Ghulam Yasin (appellant) is in jail. He be released forthwith if not required to be detained in any other case. Ghulam Qasim (appellant) is on bail. His sureties are discharged from the liability of bail bonds.
26. So far P.S.L.A. No,71 of 2009 filed by Haji Ahmad Khan complainant against acquittal of Muhammad Ramzan, Khadim Hussain and Muhammad Aslam co-accused of the appellants is concerned, since we concluded that the prosecution case is of doubtful nature, therefore, there is no question of conviction of respondents No,1 to 3 who have been acquitted by a court of competent jurisdiction. In view of the above, P.S.L.A. No,71 of 2009 is dismissed in limine.
27. Coming to Criminal Revision No,407 of 2009 filed by Haji Ahmad Khan complainant for enhancement of the sentence of imprisonment for life awarded to Ghulam Qasim respondent No,1 to the sentence of death and also for enhancement of the amount of compensation imposed upon Ghulam Qasim and Ghulam Yasin, respondents Nos.1 and 2, since we concluded that the prosecution case is of doubtful nature, therefore, there is no question of enhancement of the quantum of sentence awarded to Ghulam Qasim respondent No,1 and amount of compensation imposed upon both Ghulam Qasim and Ghulam Yasin, respondents Nos.1 and 2, respectively.
Resultantly, Criminal Revision No,407 of 2009 is also dismissed in limine.
28. Murder Reference No,177 of 2009 is answered in the NEGATIVE and the sentence of death awarded to Ghulam Yasin (appellant) is NOT CONFIRMED.