' SHAHNWAZ TARIQ, J.---By this common judgment, we would like to dispose of Criminal Appeal No.106 of 2010 and Criminal Revision Application No.58 of 2010, whereby same judgment has been agitated.
2. Through criminal appeal eight appellants namely Haji Muhammad son of Arab Khashkheli, Liaquat alias Yaqoob son of Nimro Khashkheli, Dilshad son of Mir Muhammad Khashkheli, Muhammad Hassan son of Arab Khashkheli, Ghulam Shabbir son of Nimro Khashkheli, Ghulam Mustafa alias Ghulamon son of Arab Khashkheli and Allah Bachayo son of Allah Doti Khashkheli, have sought their acquittal from the conviction, while by criminal revision application, the complainant Neelaram has prayed for enhancement of sentence already awarded to the appellants. Both parties have assailed the impugned judgment dated: 25-2-2010 passed by the Court of learned IInd Additional Sessions Judge, Mirpurkhas in session case No.27 of 2002, whereby all the above named appellants were convicted and sentenced to suffer rigorous imprisonment for life. They have also been directed to pay an amount of Rs.50,000 each as compensation to the legal heirs of deceased Gobindram as required under section 544-A, Cr.P.C. And in case of default of payment of compensation amount, to suffer S.I for six months more. However, benefit of section 382-B, Cr.P.C. Has been extended to the appellants.
3. During the pendency of instant appeal, appellant Nimro Khashkheli son of Obhayo and the complainant Neelaram, expired, therefore, proceedings against appellant Nimro were abated.
4. Precisely, the facts of prosecution case are that complainant Neelaram lodged F.I.R. On 10-2- 2002 at 1530 hours, stating therein that he is partner of Seth Gobindram in his business, who is owner of land situated in Deh Seri, Taluka Mirpurkhas. On said land, Haji Muhammad son of Arab, Yakoob alias Bako son of Nimro, Dilsher son of Mir Muhammad, Bashir son of Nimro, Muhammad Hussain son of Arab, Altaf son of Muhammad Hussain, Nimro son of Obhayo, Ghulam Mustafa alias Ghulamoon son of Arab, Allah Bachayo son of Alladitto and Mir Muhammad son of Nimro, all by caste Khaskheli, are settled, and they are dispute with Seth Gobind Ram over 60 acres and such litigation is pending in the civil court. They quarrelled with Manager of Seth Gobindram namely Faqeer Meghwar and he lodged such report against Ghulam Mustafa and others. On 10-2-2002, the complainant along with Seth Gobindram and driver Shaggan, went to the land of Seth at Deh Seri, by the vehicle of Seth, where Dhoorio son of Manji Bheel, Maghan son of Mohan and Sharafat alias Iqbal were present. Complainant party parked their vehicle at the Otak and they along with Dhoorio and others, went to visit the land. At about 1420 hours, they reached at Mander-wari-Patri near the wheat crop cultivated by Kirshan Kolhi in Deh Seri, where accused Haji Muhammad, Shabbir and Muhammad Hassan armed with pistols, Yaqoob alias Baka, Dilsher, Altaf and Nimro with hatchets, were available there, and at the distance of 1/2 acre accused Ghulam Mustafa alias Ghulamon, Allah Bachayo and Mir Muhammad with hatchets were present. Accused Haji Muhammad and others challenged Gobindram that why he did not stop coming on disputed land and also got registered cases against them through his employees, hence they will not spare and murder him. Ghulam Mustafa and other were standing on backside of accused Haji Muhammad and others, had instigated Haji Muhammad and others that for what they were still waiting. On the instigation of Ghulam Mustafa within their sight, Haji Muhammad and others fired directly with pistols and inflicted hatchet blows to Seth Gobindram with intention to kill him. Fires made from pistols of Haji Muhammad, Shabbir and Muhammad Hassan hit on right side of the chest, left arm and left side of waist of Seth Gobindram respectively. Yakoob alias Baka, Dilsher, Altaf and Nimro caused hatchets blows to Gobind Ram on right side of his ear, backside of head, right side of cheek and neck (Narar) respectively. After sustaining firearm and hatchet injuries, Seth Gobindram fell down and went unconscious and all the accused persons warned them not to come near else they would be killed. Due to fear, complainant did not go near them, and then within their sight accused Shabbir took the licensed revolver of Gobindram tied with his waist, and they went away towards their houses. They saw that blood was oozing from the injuries sustained by Seth Gobindram and he was unconscious. They shifted Gobindram to Civil Hospital in vehicle, but on the way near Jarwari Shakh at about 1445 hours, he succumbed to his injuries. After leaving the dead body at Civil Hospital under the supervision of Dhoodio, Maghan, Shaggan and Sharafat alias Iqbal, the complainant lodged F.I.R. At Police Station that the above named accused persons after consultation, duly armed with weapons because of old enmity, at the instigation of Ghulam Mustafa and others, made straight fires and caused hatchets blows to Seth Gobindram.
5. During the course of investigations, police arrested above named accused persons, recovered crime weapons and submitted challan against them before the concerned court, while accused Mir Muhammad and Ghulam Mustafa were shown as absconders.
6. Requisite case papers were supplied to the accused persons vide Exh:1, and charge was framed against them as Exh.2, to which they pleaded not guilty and claimed for trial vide their pleas as Exh.
2/A to 2/H respectively.
7. In order to establish the charge against, accused persons, prosecution examined the complainant Neelaram at Exh.4, who produced F.I.R. As Exh.4/A, P.W-2 Shaggan son of Dharmoon as Exh.5, P.W-3 Maghan as Exh.6, Mashir Shaggan son of Wagho as Exh.7 who produced memo of wardat as Exh.7/A and three empties article as Exh.7/B, P.W-4 Chotho as mashir as Exh.8 who produced memo of arrest Exh.8/A and 8/B, P.W-5 Majnoon as mashir as Exh.9 who produced the memo of recovery of two pistols on the pointation of accused Ghulam Shabbir as Exh.9/A, one pistol and 4 live bullets as article 9/B and another pistol as article 9/C, memo of recovery of pistol and five live bullets on the pointation of accused Haji Muhammad as Exh.9/D and pistol and five bullets as Exh.9/E, memo of recovery of pistol and five live bullets on the pointation of accused Muhammad Hassan as Exh.9/F and pistol and five bullets as article Exh.9/O, memo of recovery of hatchet on the pointation of accused Liaquat as Exh.9/H and hatchet as article Exh.9/I, memo of recovery of hatchet on the pointation of accused Dilsher as Exh.9/J and hatchet as article Exh.9/K, memo of recovery of hatchet on the pointation of accused Nimro as Exh.9/L and hatchet as article Exh.9/M, memo of recovery of hatchet on the pointation of accused Ghulam Mustafa as Exh.9/N and hatchet as article Exh.9/O, memo of recovery of hatchet on the pointation of accused Allah Bachayo as Exh.9/P and hatchet as article Exh. 9/Q. P.W-6 Dr. Syed Muhammad Nadir was examined as Exh.11 who produced police letter as Exh.11/A, dead body visit form as Exh.11/B, post- mortem report of deceased Gobind Ram as Exh.11/C and police letter in respect of weapon used for injuries as Exh.11/D, reply to that letter as Exh.11/E and police letter in respect of clothes of deceased as Exh.11/F, receipt of handing over the bullet to police as Exh.11/G. P.W A.S.-I. Imam Ali as Exh.12/B who produced Danistnama as Exh.12/B, letter issued to M.O. For post-mortem as Exh.12/C, re receipt of handing over the dead body to legal heirs as Exh.12/D, reports of chemical examiner and ballistic expert as Exh.12/E and 12/F. P.W Muhammad Hayat Tapedar as Exh.15 who produced sketch as Exh.16. Learned ADPP for the State closed the side of prosecution vide statement Exh.17.
8.. Statement of accused Haji Muhammad under section 342 Cr.P.C. Was recorded as Exh.18, who produced certified true copy of the judgment delivered in Cr. Case No.96/2003 by the learned Judicial Magistrate-III, Mirpurkhas, as Exh.19. Statements of accused Liaquat, Dilsher, Nimro, Ghulam Mustafa and Allah Bachayo were recorded under section 342 Cr.P.C. As Exh.20, 21, 26, 27 and 28 respectively. Statement of accused Muhammad Hassan as Exh.22, who produced the certified true copy of judgment in Cr. Case No.97/2003 as Exh.23 passed by learned Judicial Magistrate-III, Mirpurkhas. Statement of accused Ghulam Shabbir was recorded under section 342, Cr.P.C. As Exh.24, who produced the certified true copy of the judgment as Exh.25 passed in Cr. Case No.95/2003 by the learned Judicial Magistrate-III, Mirpurkhas. Statements of accused Haji Muhammad, Muhammad Hassan and Ghulam Shabbier under section 342, Cr.P.C. Were recorded as Exh.30, 31 and 32 respectively.
9. After hearing the arguments of the learned counsel for the parties and considering evidence adduced by them, learned trial Court convicted and sentenced the appellants vide impugned.
Judgment.
10. Mr. Tahseen Ahmed Qureshi, learned counsel for the appellants has contended that the trial Court has miserably failed to ascertain the vicarious liability of each accused and that the fatal shot was not attributed to all appellants. The material contradiction between the contents of F.I.R.
And the evidence of the complainant in respect of the investigation, roles of accused persons and causing of injuries to the deceased, have also been ignored. Prosecution witnesses are harries, driver and partner of the deceased as such they are interested witnesses. During the trial prosecution has given up six independent witnesses namely Rana. Saleem, Mairaj Khalid, Muhammad Arif, Phullo, Dhoorio and Sharafat which created serious doubt regarding the truth of the prosecution case. The memo of place of incident was prepared on 11-2-2002 at 7-00 a.m., but the complainant and mushirs were not present there, and complainant has admitted that police did not recover anything from the place of incident. The learned trial Court has discussed only the evidence of eyewitnesses but failed to consider the corroborative pieces of evidence. He further contended that appellants have been falsely implicated by the complainant in case with ulterior motives, as complainant has admitted in F.I.R. That there was old enmity between the parties over the ownership of the agriculture land.
11. He further contended that complainant party was aggressor and the deceased along with many persons forcibly entered into the disputed land and started cutting trees, and Seth Gulabrai committed murder of one of Altaf Khashkheli, whereupon entire villagers gathered there and they attacked the complainant party and Gobindram sustained injuries. Ghulam Hussain lodged F.I.R.
No.13/2002 against Gulabrai, the brother. Of the deceased and witnesses regarding murder of Altaf, and a direct complaint was also filed against them for murder of Altaf before the same trial court.
Complainant with mala fide intention has implicated ten accused persons with false specific roles and such accuracy itself is unbelievable and appellants may be acquitted by extending benefit of doubt. He has relied upon 1969 SCMR 714, 2009 PCr.LJ 1266, 2005 PCr.LJ 172 and 2003 MLD 1774.
' Mr. Muhammad Hashim Memon, learned counsel for complainant has contended that prosecution has proved its case against appellants by examining eye witnesses as well as mashirs of arrest and recovery, and their evidence was fully corroborated by the medical evidence.
Defence has failed to shatter the evidence of prosecution witnesses, therefore, sentence already awarded to the appellants may be enhanced to the extent of death sentences. No enmity of witnesses has been shown against the appellants for their falsely implication in case, and defence has failed to shatter the credibility of the eye witnesses, as such presence of eye witnesses at the time of incident was natural and minor discrepancies cannot be taken into consideration. He contended that though in postmortem report kind of weapon used in commission of offence, was not mentioned and even the evidence of the medical officer that dead body was received on 11-2- 2002 at Civil hospital and on same day post-mortem was conducted, was a bona fide mistake and same may be rectified in view of the evidence of P.Ws. And documents produced by the prosecution that incident was occurred on 10-2-2002. He further contended that during cross examination of P.Ws., the suggestion put by the defence counsel that firstly Altaf Khashkheli was maltreated and then murdered by Gulabrai, and upon which villagers gathered there and the mob had attacked upon deceased Gobindram, but said plea was not mentioned in statements of accused. During investigation empties, pistols and blood stained hatchets were recovered from respective appellants, and reports of chemical examiners and ballistic expert were in positive, and the robbed licensed revolver of the deceased was also recovered from accused Shabbir. He has relied upon 1984 PCr.11 100, 1997 SCMR 373, 2009 SCMR 825, 2009 SCMR 1133, 2002 SCMR 334, 2003 SCMR 1164, 2001 SCMR 199 and PLD 2001 SC 458.
13. Mr. Muhammad Iqbal Kalhoro, learned A.P.-G. For the State has supported the arguments advanced by learned counsel for the complainant, and has contended that prosecution has established its case against the accused by producing all the material witnesses supported with documentary evidence as such criminal appeal filed by the appellants may be dismissed and criminal revision filed by the complainant may be allowed.
14. We have heard learned counsel for the appellants, learned counsel for the complainant as well as learned A.P.-G. For State and have scanned the material and cited case law with their assistance.
15. Ocular testimony comprises of evidence of complainant Neelaram, two eye witnesses namely Shaggan and Magan. For the appropriate conclusion of instant appeal, we would like to scrutinize evidence of all the three prosecution witnesses.
16. The relevant portions of evidence of P.W.1, complainant Neela Ram (Exh.4) is reproduced as:-- "On 10-2-2002, 1 along with the deceased Gobandram, Shaggan, Dhoorio, Bhalo alias Iqbal and Magan went to the land of the deceased near Mandar wall Patri. There is agricultural land of about 1300/1400 acres which is in Mirwah and Seri Farm belonging to the deceased and his brother. It was about 2 P.M. When 1 saw accused namely Haji Muhammad, Dilsher, Shabbir, Mir Muhammad, Hassan, Yako, Altaf, Nimro, Ghulamoon and another person whose name 1 do not remember, they were armed with different weapons as accused Ghulamoon, Miro and Allah Bachayo possessed hatchets, Haji Muhammad, Shabbir and Hassan were equipped with pistols, accused Nimro, Altaf Yako and Dilsher were armed with hatchets. All accused threatened Gobandram not to leave alive him. Accused Miro, Allah Bachayo and Ghulamoon instigated other accused persons for some adverse action by saying that they are still seeing. On these words, accused Haji Muhammad made fire by his pistol which hit on the right arm of the deceased Govand, whereas accused Shabbir fired with his pistol on left arm of the deceased, accused Hassan also fired which was hit on the left side of the waist of the deceased, accused Nimro hit the hatchet on the forehead of the deceased, accused Altaf hit the hatchet at the right cheek of the deceased, accused Yako hit the hatchet at the right side of the neck of the deceased.
Accused Dilsher also hit his hatchet on the back of the neck of the deceased, thereafter deceased Gobandram fell down. All the accused went away from the spot by making firing in the air, and firing was also going on from their village side. At the time of inspection of wardat, there were so many other persons but I do not remember their exact number. I do not remember whether it was day time or after sunset time. I do not remember that whether the police collected anything from the place of incident or not. The place of incident is situated 10/12 acres away from otaq of the deceased. At that time 1 was accompanied with deceased Gobandram, whereas other P. Ws.
Were on our back. Accused opened the fire on the deceased from distance of 10 to 15 paces and after immediate effect other accused persons gave hatchets blows to the deceased. It is correct to suggest that no other person received any injury. At that time we were standing about 15/20 paces away from the deceased. It is correct to suggest that I did not intervene in the matter as I was also threatened to be killed by the accused persons. When the culprits challenged us before the incident, they were at a distance of about half acre away from the deceased. It is correct to suggest that when the accused challenged us from the distance of half acre duly armed with weapons, we did not try to run away. I do not know whether one Altaf was murdered in this incident. F.I.R. Of which was registered under No.13/2002 at P.S. Mirpurkhas Taluka. It is correct to suggest that I am also one of the accused in Crime No.13/2002 which was lodged by complainant Ghulam Hussain. It is also correct to suggest that in Crime No.13/2002 Nazar Muhammad, Jamil alias Jeelo, Hotchand alias Hotoo, Gulab Rai alias Gul are also accused. It is correct to suggest that there is also direct complaint which pertains to the murder of Altaf pending in this court.
Voluntarily says that police has also recorded correctly F.I.R. No.13/2002 in respect of the murder of Altaf. It is correct that Sessions case of Crime No.13/2002 is also pending in this court. It is incorrect to suggest that on 10-2-2002 at about 2.00 P.M. Seth Gobandram the deceased, Seth Gulab Rai alias Gul, Hotchand, myself Jamil alias Jeelo, Nazar Leghari and other 60/70 persons came on lands of Allandino Manganhar, and started cutting trees forcibly in order to take possession, and also called Altaf and after abusing, directed him to leave but Hotchand asked not to leave him, upon which Gulab Rai fired on said Altaf with 12 bore gun which hit him and he fell down, upon which all the persons present in surrounding area gathered there and seeing them, all the persons namely myself Seth Gulab Rai, Seth Gobandram, Seth Hotchand, Jameel alias Jeelo and Nazar Leghari started running towards car, but Seth Gobandram fell down while running towards the car, then scuffle started and Gobandram sustained injuries whereby he succumbed the same. I do not know all the accused persons by name except two/three. It is incorrect to suggest that I have assigned the roles to the accused with the consultation of the deceased's family as per post mortem report."
17. The relevant portion of cross examination of P.W.2, Shagan (EXH.5) is reproduced as:-- "I am working with seth for the last about 14/15 years. It is correct to suggest that incident was taken place on the land on which there was already a dispute in between the parties. The place of incident is at a distance of about 02/03 acres away from the otaq of Mir Muhammad. It is a fact that the dispute was arisen over the land of Allandino Manghanhar. It is correct to suggest that none of the P. Ws received injuries except said Seth Gobindram. It is incorrect to suggest that in said incident Altaf Khaskheli was also murdered. It is incorrect to suggest that said Altaf was called from the otak of Mir Muhammad by Gulab Rai, Hotchand, Neelaram, Nazar Muhammad and Jameel by holding his collar. It is incorrect to suggest that after beating him, he was directed to runaway but Hotchand said that why you are leaving him alive, upon which Gulab Rai alias Gul opened straight fire at Altaf Khaskheli on the instigation of Hotchand. It is incorrect to suggest that when said Altaf Khaskehli fell down after the pellet injury, the persons who were present there in chhar and other villagers had attacked on seth Govindram in result of which he sustained injuries."
18. The relevant portion of cross examination of P.W.3, Maghan (EXH.6) is reproduced as:-- "I was the hari of the deceased since last 20/25 years. It is correct to suggest that the Khaskheli were haries of the Allandino Manghanhar on the land under dispute and accused persons were also haries on the said disputed land. Before the incident there was a distance of 1/4 acre in between us and accused Khaskhelis and half acre from the other accused persons, from where they came 10/15 paces forward and fired. At the time of incident, Seth Gobind was first in the row, then Seth Neelaram, then Bahloo and besides him, I and P. W. Shagan were in his side and Dhoorio was also with us in our side where Seth Gobindram was at a distance of 10 paces from us. It is correct to suggest that all the gun fire shots hit the deceased Seth Gobindram when he was in standing position. It is also correct to suggest that we all the P. Ws did not receive any shot injury or pellet injury except Seth Gobindram. It is incorrect to suggest that on the day of incident Seth Gobindram had taken many persons including Neelaram, Hotchand, Seth Gul, Jameel and Nazeer to the disputed land and started to cut trees and were taking away the same to his otaq. It is incorrect to suggest that the deceased Seth Govindram accompanying with Seth Neelaram, Hotchand, Gul, Nazeer and Jameel had come near the otaq of Mir Muhammad Khaskheli and called Altaf who was standing near his uncle Mumtaz. It is incorrect to suggest that after calling, said Altaf was beaten by Nazar Ahmed and Jameel and was also dragged by holding his collar. It is also incorrect to suggest that after beating him, he was directed to go away from there, but Hotchand stated that you are leaving him alive, upon which Rai alias Gul opened straight fire on Altaf Khaskheli with gun. It is incorrect to suggest that when said Altaf fell down due to pellet injury, the persons present there and other villagers attacked on seth Gobindram and caused him injuries while he was running towards his Otaq."
19. Relevant portions of statement of P.W.7 Medical Officer Dr. Syed Muhammad Nadir (Exh.11) are reproduced as under:-- "On 11-2-2002 I was posted as Casualty Medical Officer at Civil Hospital, Mirpurkhas. On the same day I was in evening shift and at about 4.00 p.m., Mr. Leelaram brought the dead body of Gobind Ram son of Asandas. The dead body was identified by Lachmandas and Mangharam who were relatives of the deceased. The post-mortem was started on 11-2-2002 at about 5.20 p.m. And finished at 7.30 p.m. On the same day. 1 examined the dead body and found the following injuries:-
(1) Incised wound size 12 cms x 8 cms extended from right sided of cheek upto back of right ear.
Approximately 5 cms deep and the brain matter out.
(2) Incised wound 5 cms x 3 cms on right cheek.
(3) Lacerated wound cms x 1 cm on Left side of fore-head, bone exposed.
(4) Incised wound 5 cms x 2 cms on right parietooccipital area. Bone exposed.
(5) Incised wound 16 cms x 6 cms at occipital area brain matter out.
(6) (A) Wound of entry 0.5 x 0.5 cm on right side of chest matter out.
(6) (B) Wound of exit 2cms x 1.5cm on left exila with averted margin.
(7) (A) Wound of entry 0.5 x 0.5 cm anterior side of left Lumbar region with inverted margin.
(7) (B) Wound of exit 2 cms x 1.5 cm posterior sider of lumbar region with averted margin.
(8) Wound of entry 1 cm x 0.5 cm at anterior of left elbow
(9) Lacerated wound 1 cm x 1 cm at anterior of right shin.
' The injuries Nos.1, 2, 4 and 5 were caused due to sharp cutting, weapon, while injuries Nos.3 and 9 were caused by hard and blunt substances, and injuries Nos.6, 7 and 8 were caused by firearm weapon. Lungs got through and through injury. The skull got communicated fracture on occipital area and brain matter out. Fracture of mandible and maxille upto occipital bone and brain matter was out. From the external as well as internal examination of deceased Gobind Ram, I am of the opinion that the cause of death is due to the injury on vital organ i.e. Brain leading to haemorrhage and death. The duration between death and injuries was immediate. I prepared such post-mortem on the same day. I produce such postmortem as Exh.11/C which is same, correct and bears my signature. During postmortem, I recovered a bullet from the body of deceased which was handed over to the police. I produce such letter of police with regard to bullet as Exh.11/G. It is correct that the description of injury No.3 is mentioned as 'left side of forehead'. It is correct that there was only one injury on the forehead of dead body. The injury No.1 incised wound 12x8 cms means that 12 cms in length and 8 cms in width. It is incorrect to suggest that the injury is not ante-mortem. It is correct that injury No.8 is not the cause of death. It is incorrect to . Suggest that injury No.7 is not sufficient to cause death. Wound 'shin' mentioned in injury No.9 means anterior of leg. It is correct that injury No.9 may not be sufficient to cause the death. It is incorrect to suggest that injury Nos.1 and 2 are same. Injury Nos.1 and 2 both are separate. Injury Nos.1 and 2 are at the span of about 3 cm to 4 cm. It is correct that injury No.2 is not sufficient to cause death. It is correct that I have mentioned in my post-mortem report that all the injuries were ante mortem. It is correct that received bullet is not present in court today. It is correct that I have not mentioned the type of weapon in my post-mortem report. The injuries with pistol fire being through and through can be made from the distance of one foot or two to three feet. Blackening occurs if the pistol fire is made from the distance of one foot."
20. Perusal of above evidence of M.O. Reflects that dead body of Gobindram was brought at Civil Hospital, Mirpurkhas on 11-2-2002 at evening and post-mortem was started on same day at 5.20 p.m. And finished at 7.30 p.m. And post-mortem report was also prepared on same date. While complainant has deposed that he brought dead body of Gobandram at Civil Hospital on 10-2- 2002, as such the medical evidence is not in consonance with ocular account of prosecution evidence.
20A. At this juncture, we would like to refer relevant case law as follows:--
(i) In case of Zaabdin v. The State, PLD 1986 Pesh. 188 it has held that statement under section 164 of person who has not spoken whole truth and has tried to introduce at trial certain facts which he had not mentioned in his S. 164 statement, carries no evidentiary value.
(ii) In case of Akhter v. The State, 2008 SCMR 6, it has held that improvements made by witness in his statement subsequently to strengthen prosecution case, could not be relied upon. When a witness improves his version to strengthen the prosecution case, his improved statement subsequently made cannot be relied upon as the witness has improved his statement dishonestly, therefore, his credibility becomes doubtful on the well-known principle of criminal jurisprudence that improvements once found deliberate and dishonest cast serious doubt on the veracity of such witness.
(iii) In case of Khalid Javaid v. The State, 2003 SCMR 1419, Honourable Supreme Court has held that first information report under section 154, Cr.P.C. Is normally considered as a corner stone of the prosecution case unless it is shown that on account of some malafide intention a wrong version of the complainant was recorded by the investigation agency with a view to allow the real culprits to go escort free and to involve innocent person in the commission of the offence or complainant in order to misguide the investigation lodged false report or supplementary statement with ulterior motive. It has further been held that witness who had made glaring contradictions, omissions and improvements in his Court statement qua the statement recorded by him before the police either as per the contents of F.I.R. If he was a witness and his statement was recorded under S.161, Cr.P.C, such witness was to be considered to be wholly unreliable witness and it was not advisable to place explicit reliance upon his evidence.
(iv) In case of Gul Bahar v. Ghulam Ali, 2002 SCMR 224, it has held that ocular evidence was in glaring conflict with the contents of the F.I.R. And the improvement and the exaggeration made at the trial had made the entire prosecution case doubtful. Confessional statement and the recoveries had also been disbelieved by the Trial Court to complainant in circumstances.
(v) In case of Hadi Bux v. The State, PLD 1963 Karachi 805, it has held that relation of prosecution witness and accused strained, evidence of such witness not safe to rely upon unless corroborated by reliable evidence. Witness improving his version to strengthen prosecution case, statement subsequently made cannot be relied upon.
(vi) In case of Noor Muhammad v. The State, 2010 SCMR 97, Honourable Supreme Court has observed as under:- "This shows the intense interest of the complainant in the prosecution case, therefore, the Court must be on guard before accepting such type of evidence. Particularly, when other witnesses and people were present at the respective places but the prosecution did not care to examine them.
Corroborative evidence is meant to test the veracity of ocular evidence, therefore, both of them are to be read together and not in isolation."
(ii) In case of Dr. Khalid Moin and others v. The State 2006 PCr.LJ 639, it has held that in first information in cognizable cases, all the details of the incident although are not required to be given in F.I.R. But at least major and important points are required to be mentioned therein.
(viii) In case of Mian Dad Leghari v. The State, 2009 PCr.LJ 1226, it has held that in such a case of clear contradiction between F.I.R., 161, Cr.P.C. Statement and the evidence led in court, the credibility of eye witnesses is exposed to doubt and the same may lead to suggest that they made the major improvement in their statement before the Court, with certain interest and motivation. The ambiguity, which is inherent in the deposition of the complainant and other eye witnesses had undermind the evidentiary value of evidence.
(ix) In case of Master Muhammad Siddique v. The State another 2003 MLD 1774, it has been held that material witnesses were two ladies but those were not produced by the prosecution. In ordinary law when best evidence is not produced in the Court the inference is to be drawn against the party withholding such evidence.
21. Reverting to the facts of instant appeal, admittedly, the deceased and 5 P.Ws., were available together at the spot, and P.Ws. Were moving around the deceased, when allegedly pistols fires were made by three accused persons namely Haji Muhammad, Shabbir and Hassan from distance of 15 paces, but same hit only to the deceased and admittedly none of the witnesses had sustained any injury, even accused namely Yaqoob, Dilshad, Altaf and Nimro allegedly caused hatchet injuries to deceased, but astonishingly all P.Ws. Remained silent neither they resisted the accused party nor rescued the deceased or even they did not try to flee away from the spot. P.Ws.
Have also stated that accused persons were duly armed with weapons and they issued threats from the distance of half acre to the deceased but complainant party neither attempted to escape away from the spot nor they adopted any immediate defensive measures for protection of their lives; this surprising demeanor of P.Ws is highly doubtful and it does not appeal to any logic.
22. Admittedly, the dispute had arisen about one month back when the Manager of the deceased lodged F.I.R. Against accused party regarding the clash held between them, and even otherwise parties were already disputed over the ownership of 60 acres of land. The deceased was owner of 1400 acres of agricultural land as such he was not an ordinary person, therefore, it can easily be presumed that in such a changed atmosphere he cannot move without any adequate security.
Moreover, P.W.2 Shaggan and P.W.3 Magan have admitted in their evidence that dispute was arisen on the land of Allandino Manganhar and accused are haries of disputed land. Furthermore, complainant has admitted that accused fled away from the spot by making aerial firing and firing was also going on from village side. P.Ws. Have deliberately concealed the above major and essential fact of death of Altaf Khashkheli in F.I.R. And statements under section 161, Cr.P.C. Recorded by the police and also in their evidence recorded before the trial court, however, in cross examination, complainant has candidly admitted that one Ghulam Hussain lodged F.I.R.
No.13/2002, by
23. Likewise, complainant cleverly and with malafide intention has nominated the deceased Altaf in his F.I.R. By assigning him the role of causing hatchet blow to the Gobindram, and on other hand with ulterior motive, has concealed the material facts. Admittedly, he did not mention in F.I.R. That accused Shabbir fired with pistol on left arm of the deceased and the accused Haji Muhammad fired with pistol on his right arm. He also not mentioned in F.I.R. That accused Yakoob gave hatchet blow on the right side of neck of the deceased. He also not mentioned in F.I.R. That the accused persons escaped away from the spot by making aerial firing. He also not mentioned in F.I.R. That the firing was going on from the village side. He also did not mention in the F.I.R. That the vehicle was called from Seri Farm through P.W. Shaggan driver and who brought Toyota Corolla Car having Registration No.123 by which dead body was shifted to Civil hospital.
' Amazingly, complainant has nominated ten accused persons in F.I.R. Regarding commission of the alleged offence, with specific places of their availability on the spot with their distances and even availability of3 accused at the distance of half acre away from the deceased. Complainant has also deposed aetaii of specific weapons duly equipped by all accused and attributed specific roles to all of them regarding causing injuries by their pistols and hatchets on the specific parts of the body of the deceased, but on other hand he has admitted in his evidence that he is aware of names of only 2/3 accused out of ten; this admission has vitiated the credibility of the entire evidence of the complainant as such same could not be believed being highly doubtful, which proves that complainant has deposed at the instance of family members of the deceased according to the contents of the post mortem of the dead body.
24. Considering meticulously the above facts, circumstances and evidences of the P.Ws., we have no hesitation to conclude that the iota of evidence adduced by the prosecution is neither trustworthy nor confidence inspiring, hence, could not be relied upon, as the dispute occurred upon disputed land which is under cultivation of appellants and near to the Otaq of Mir Muhammad Khashkheli, and the admission of complainant was that firing was going on from village side. On the contrary, in the present scenario, the defence plea seems to be more attractive that complainant party along with many persons entered into the disputed land to take over its possession forcibly, and they first maltreated Altaf Khashkheli and then Gulabrai alias Gul, brother of deceased, made gunshot which hit Altaf who expired on the spot, whereupon the villagers surrounded the complainant party and during scuffle Gobandram sustained injuries and ultimately died. Furthermore, eye-witnesses have stated that the distance of fire shots was 10/15 paces, while medical officer has stated that through and through fire shot would be caused from the distance one to three feet. Although it is prerogative of prosecution to examine it witness as per its choice, but in present case despite of availability of six independent witnesses, prosecution has examined only interested witnesses who are harries and driver of the deceased and admittedly they were interested witnesses and they have concealed and withheld important facts in F.I.R. And their statements before police and also evidence recorded by the trial court which also proved mala fide on the part of the prosecution.
26. For the detailed discussion referred supra, we are of the considered view that prosecution has failed to adduce trustworthy and confidence inspiring evidence to bring home guilt of accused beyond any shadow of doubt, therefore, false implication of ten accused cannot be ignored in the peculiar circumstances. It is well settled proposition of law that a slightest leave of doubt is sufficient for acquittal of accused. Consequently, Criminal Appeal No. D-106 of 2010 is allowed and impugned judgment dated 25-2-2010 is set aside, and by extending benefit of doubt all appellants are acquitted of charge, and simultaneously Criminal Revision Application No.D-58 of 2010 stands dismissed. The Superintendent of concerned prison is directed to release all appellants forthwith, if they are no more required in any other case.