' SHEZADA MAZHAR, J.---Javed Iqbal, Pervaiz Iqbal and Zafar Iqbal appellants were sent up to face trial in case F.I.R. No. 103 of 2008, dated 22-3-2008, registered at Police Station Saddar District Jhelum in respect of offences under sections 302/34, P.P.C. After conclusion of the trial, the learned Additional, Sessions Judge, Jhelum, vide judgment dated 19-12-2009 convicted the above-said three appellants under section 302(b)/34 of P.P.C. For committing the murders of Usman Sarwar and Mst. Zareena Bibi deceased and sentenced them to imprisonment for life on two counts each with a direction to pay the compensation amount of Rs. 50,000 on two counts each (Rupees fifty thousand only) to the legal heirs of deceased as envisaged under section 544-A, Cr.P.C. And in default, thereof, to suffer imprisonment for six month's S.I. Each. Both the sentences were directed to run concurrently. Benefit of section 382-B, Cr.P.C. Was also extended to them and through this appeal, the above-said three appellants have challenged their conviction and sentence before this Court.
2. Brief facts of the case as given by the complainant Mehmood Sarwar (P.W.10) in his 'Fard Bayan Exh.PP on the basis whereof the formal F.I.R. Exh.PE was recorded are that he (complainant) was resident of Nai Abadi Mujahid Abad. At about 12-20 a.m. At night he along with his behnoi Raja Shafqat who had come to visit them, was sleeping in a room while his mother Mst. Zareena Bibi (deceased), his brother Usman Sarwar (deceased) and his sister Mst. Saima Sajjad (P.W.11) were sleeping in other room. Meanwhile, the door of the house was knocked. Usman Sarwar (deceased) brother of the complainant went towards the door and his mother also followed him. On hearing the noise of abuses, the complainant and his behnoi also came out in the courtyard. Meanwhile, they saw that Zulfiqar alias Qari accused (since P.0) armed with rifle like kalashankov along with his three real brothers who were armed with pistols .30 bore suddenly started firing. Zulfiqar alias Qari accused (since P.0) fired burst and bullets of which hit his mother on her forehead and also hit his brother Usman Sarwar (deceased) on different parts of his body. At the same time the real brothers of Zulfiqar alias Qari accused (since P.0) also resorted to indiscriminate firing with their respective pistols and the fire shots also hit his brother Usman Sarwar (deceased) on his back when he was turning back. Besides the complainant the occurrence was witnessed by his sister Mst. Saima (P.W.11) and brother-in-law (Behnoi). On their hue and cry the accused fled away from the spot after making aerial firing. The complainant along with his brother-in-law (Behnoi) took his mother Mst. Zareena Bibi (deceased) and his brother Usman Sarwar (deceased) to DHQ Hospital in injured condition. The motive behind the occurrence was that on 21-3-2008 hot words were exchanged between his brother Usman Sarwar (deceased) and the accused Zulfiqar alias Qari (since P.0) and due to this grudge the accused Zulfiqar alias Qari (since P.0) along with his three brothers in consultation with each other had injured his brother Usman Sarwar (deceased) and Mst. Zareena Bibi (deceased).
3. The investigation of this case was conducted by Muneeb Iqbal, S.I. (P.W.12) and Faiz Ahmad, A.S.-I.
(P.W.6) and during the investigation, statement (Exh.PP) of Mehmood Sarwar complainant (P.W.10) was recorded on the basis thereof formal F.I.R. (Exh.PE) was chalked out, injury statements of Usman Sarwar and Mst. Zareena Bibi were prepared as Exh.PQ and PR, respectively, rough site plan (Exh.P0) of the place of occurrence was prepared, 12 empties of .222 bore rifle and three empties of .30 bore pistol P.1 (1-15) were taken into possession vide recovery memo Exh.PM, the deadbodies of both the deceased were inspected, injury statements and inquest reports were prepared, statements of the witnesses under sections 161 Cr.P.C. Were recorded, the place of occurrence was inspected, deadbodies of both the deceased were sent to the mortuary for autopsy, the last-worn clothes of both the deceased were received, all the three appellants were arrested on 24-4-2008.
4. After completion of investigation, the challan was prepared and submitted before the learned trial Court. After observing legal formalities, as provided under the Code of Criminal Procedure, 1898 the learned trial Court framed charge against the appellants on 14-1-2009, to which they pleaded not guilty and claimed trial.
5. In order to prove its case, the prosecution produced twelve witnesses, during the trial. Mehmood Sarwar complainant (P.W.10) and Mst. Saima Sajjad (P.W.11) are the witnesses of ocular account while Tanveer Ahmad (P.W.3) identified the deadbodies of both the deceased Mst. Zareena Begum and Usman Sarwar in DHQ Hospital at the time of their postmortem examination.
' The medical evidence was furnished by Dr. Fouzia Bajwa (P.W.1) and Dr. Hasan Ali (P.W.5), whereas, Faiz Ahmad, ASI (P.W.6) and Muneeb Iqbal, S.I. (P.W.12) are the Investigating Officers of this case.
' Muhammad Asghar (P.W.2), Muhammad Zaman, S.I. (P.W.4) Haji Bashir Ahmed (P.W.7), Farhan Shehzad (P.W.8) and Akhtar Naqash, Draftsman (P.W.9) are the formal witnesses.
6. The prosecution also produced documentary evidence in the shape of application for conducting postmortem examination on the dead body of Mst. Zareena Bibi deceased Exh.PA, Inquest Report of Mst. Zareena Bibi deceased Exh.PB, postmortem report of Mst. Zareena Bibi deceased Exh. PC, pictorial diagram Exh. PC/1 and Exh.PC/2, copy of rapat No. 17 dated 22-3-2008 Exh.PD, copy of F.I.R. Exh. PE, postmortem report of Usman Sarwar deceased Exh. PF, pictorial diagrams Exh. PF/1 and Exh. PF/2, Medico-legal Report of Usman Sarwar deceased Exh. PG, Medico- legal Report of Mst. Zareena Bibi Exh. PH, proclamation under section 87/88 Cr.P.C. Of accused Zulfiqar alias Qari Exh. PJ, application for issuance of proclamation under sections 87/88 of Cr.P.C.
Against Zulfiqar Ahmad alias Qari accused Exh.PK, recovery memo of blood-stained cotton Exh. PL, recovery memo of empties Exh.PM, site plan of place of occurrence with scale Exh. PN, Exh.PN/1 and Exh.PN/2, rough site plan of place of occurrence without scale Exh. PO, statement of Mehmood Sarwar complainant Exh.PP, Injury statement of Usman Sarwar Exh.PQ, Injury statement of Mst.
Zareena Begum Exh. PR, application for recording statement Usman Sarwar Exh.PS, application for recording statement of Mst. Zareena Begum Exh.PT, Inquest Report of Usman Sarwar deceased Exh.PU, application for conducting postmortem examination on the dead body of Usman Sarwar deceased Exh.PV, recovery memo of clothes of both the deceased Exh.PW, Report of the Chemical Examiner for the Punjab, Lahore Exh.PX, report of Radiologist Exh.PY and closed its evidence.
7. The statements of the appellant under section 342, Cr.P.C. Were recorded. They refuted the allegations levelled against them and professed their innocence. While answering to a question that "Why this case has been registered against you and why-the P. Ws. Have deposed against you?" all the three appellants replied as under:- "I am innocent. I have no concern with the occurrence. It is a blind murder committed in the midnight. P. Ws Raja Shafqat Bashir, Saima Sajjad were not present at the place of occurrence, while Mehmood Sarwar complainant at the time of alleged firing was sleeping in his room. I have no motive against the complainant party. Complainant in connivance with the police involved me and my other brothers present in the court falsely and malafidely in this case being the brother of Zulfiqar alias Qari. I and my whole family have no concern whatsoever with Zulfiqar alias Qari. We have already Ahaqed him prior to the occurrence. All the prosecution story is concocted one. No recovery has been effected from me. All the P. Ws are closely related interse. No independent witness had verified that occurrence. I was sleeping in my house at the time of alleged occurrence."
' Neither the appellants opted to make statements on oath, under section 340(2), Cr.P.C. Nor they produced any evidence in their defence.
8. The learned trial Court vide judgment dated 19-12-2009, found the appellants guilty and convicted and sentenced them as mentioned and detailed above.
9. Learned counsel for the appellants, in support of this appeal, contends that both the eye- witnesses had made improvements in their statements on material points and there is no corroboration in their statements; that both the eye-witnesses had not seen the incident and they had made dishonest improvements in their statements in order to prove their presence at the spot; that absconsion of the appellants is not sufficient to maintain conviction of the appellants as mere absconsion is not conclusive proof of guilt of accused person as has been held in (PLD 2008 Supreme Court 298) Rahimullah Jan v. Kashif and another; that no recovery whatsoever has been effected from the appellants in spite of the fact that they had undergone physical remand for 13 days; that there are contradictions in the ocular account and the medical evidence which makes the presence of both the eye-witnesses doubtful; that the motive was not attributed to any of the appellants rather the same was attributed to Zulfiqar alias Qari accused (since P.0), hence, this appeal may be accepted and the appellants may be acquitted of the charge.
10. Conversely, the learned DDPP for the State, assisted by learned counsel for the complainant opposes this appeal on the grounds that F.I.R. In the present case was promptly lodged wherein specific role of firing has been attributed to the appellants which is fully supported by the eyewitnesses of the occurrence; that the evidence of eye-witnesses of the prosecution has been fully supported by the medical evidence; that both the eyewitnesses had no reason to falsely implicate the appellants as there was no previous enmity; that they were independent witnesses and their presence at the spot was quite natural; that they were worthy of reliance and their statements are supported by the medical evidence; that the learned trial Court had rightly relied upon the evidence against the appellants; that both the eye-witnesses were independent witnesses and they cannot be termed as interested witnesses who had spoken the whole truth as first priority of the witnesses were to take the injured for medical treatment who were in serious condition; that the prosecution had succeeded in proving the case against the appellants beyond any shadow of doubt and that the appellants had committed the heinous offence and the prosecution has stood on its own legs; that the appellants also remained proclaimed offenders till 24-4-2008, which is a strong circumstance into their guilt; that there was no reason to falsely implicate the appellants in the present case by letting off the real culprits if they had not fired at the deceased; that the eye-witnesses remained consistent on material points and their statements may be accepted; that the prosecution had succeeded in proving the case against the appellants beyond any shadow of doubt and the appeal filed by the appellants may be dismissed.
11. I have heard the arguments of learned counsel for the parties and have also gone through the evidence available on the record with their able assistance.
12. The prosecution in order to prove the guilt of the appellants had produced the ocular account' furnished by Mehmood Sarwar complainant (P.W.10) and Mst. Saima Sajjad (P.W.11). Both were real brother and sister of Usman Sarwar deceased while son and daughter of Mst. Zarina Bibi deceased.
Though they were related inter se and with both the deceased closely, but mere relationship alone is not sufficient to discard their evidence or to term them as interested witnesses. They have to prove that they had witnessed the incident and they were present at the spot. If they fail to prove the above-said facts, their statements can be discarded and it is not binding on the courts to rely upon the statements of even disinterested witnesses, if otherwise, they are not found trustworthy. It was not mentioned in the F.I.R. Or anywhere else that Mst. Saima Sajjad had sustained fire shot injury at her neck but when she appeared as (P.W.11), she deposed first time that during the occurrence she had also sustained fire arm injury on her lower neck. She was not medically examined and no MLC of Mst. Saima Sajjad 'was produced in this regard; which also negates the prosecution story. Even otherwise, Muneeb Iqbal, S.I. (P.W.12) during ..He cross-examination admitted that besides Usman Sarwar and Mst. Zareena Bibi deceased no other body was injured in this case. The Investigating Officer recorded the statement of Mst. Saima Sajjad under section 161 Cr.P.C. At the place of occurrence on 22-3-2008 but she did not present herself in injured condition.
' According to the site plan Exh.PN prepared by Akhtar Naqash, Draftsman (P.W.9) Usman Sarwar deceased was shown at Point No. 1, Mst. Zareena Bibi deceased at Point No. 2, Zulfiqar alias Qari accused at Point No. 3 and the appellants at Point No.
4. Point No. 3 has been shown inside the house whereas Point No. 4 has been shown in the street.
From the perusal of the site plan Exh.PN, it is clear that it was not possible for the appellants to fire at both the deceased from the street as Zulfiqar alias Qari accused was in the middle of the appellants and both the deceased. Even otherwise, no empty of .30 bore pistol has been collected by the Investigating Officer from Point No. 4, where the appellants were present and from where they had fired at both the deceased whereas the empties had been recovered from inside the courtyard which makes the case of the prosecution doubtful. P.W.12 Muneeb Iqbal, S.I. During the cross-examination also admitted that Point No. 4 in the site plan is in the street and no empty was taken into possession from the street. The occurrence took place at night times but the eye- witnesses have not disclosed any source of light in which they had seen the occurrence. Even otherwise, Investigating Officer (P.W.12) during the cross-examination admitted that in the street there was no electric pole and also no light was shown there. Similarly, no light was shown on the front side of the house of the deceased. In such circumstances, it was not possible for the eye- witnesses to see the appellants while committing the occurrence at night times in the absence of any light and it was not the case of the eye-witnesses that they had seen the occurrence in the moonlit. During the cross-examination, the complainant has admitted that Usman Sarwar deceased had received injuries from the firing made by Zulfiqar alias Qari accused (since P.O.) on his chest, foot, elbow, back, buttocks etc. On the other hand, in his examination-in-chief the complainant stated that the firing made by the appellants hit Usman Sarwar deceased on his back. The two statements are contradicted by medical evidence as only one wound was found at the back of Usman Sarwar deceased. The complainant during the cross-examination claimed that they locked the house and went to hospital along with the deceased, whereas, Mst. Saima Sajjad stated that the house was not locked as her son was present there. In such circumstances, whether the witnesses were present at the spot and had seen the incident is the question which has not been sufficiently answered by the eye-witnesses. On the other hand, they had made dishonest improvements in their statements while -appearing in the court in order to fill up lacunas and as such I do not find it safe to rely upon their statements for maintaining the conviction and sentence of the appellants.
13. Insofar as the medical evidence furnished by the prosecution is concerned it is by now well settled law that medical evidence may confirm the ocular evidence with regard to the seat of injury, nature of the injury, kind of weapon used in the occurrence but it would not connect the accused with the commission of the occurrence. Reference in this respect may be made to the case of "Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others (PLD 2009 Supreme Court 53).
Similar view was taken by the Hon'ble Supreme Court of Pakistan in the cases of Mursal Kazmi alias Qamar Shah v. The State (2009 SCM R 1410) and Altaf Hussain v. Fakhar Hussain and another (2008 SCM R 1103).
14. Though the Investigating Officer secured 12 empties of .222 bore rifle and three empties of .30 bore pistol P1/1-15, from the place of occurrence vide recovery memo Exh.PM, but the same is not helpful to the prosecution case to the extent of the present appellants as the appellants were arrested in this case on 24-4-2008 and they remained on physical remand for thirteen days but in spite of that nothing incriminating could be recovered from their possession during their physical remand.
15. The motive as given in the F.I.R. (Exh.PE) is that on 21-3-2008 hot words were exchanged between Zulfiqar alias Qari accused (since P.0) and Usman Sarwar deceased and due to that grudge, Zulfiqar alias Qari accused (since P.0) along with his three real brothers in furtherance of their common intention injured Mst. Zareena Begum and Usman Sarwar deceased who subsequently succumbed to their injuries on the same day. The motive can be a corroborative piece of evidence to the other evidence, but it alone is not sufficient to hold the accused guilty with all improbability.
The motive was between Usman Sarwar deceased and Zulfiqar alias Qari accused (since P.0), whereas, the appellants had no direct motive against the complainant party and possibility cannot be ruled out that the appellants have been involved in this case being brothers of said Zulfiqar alias Qari accused (since P.0). Even otherwise, there is no documentary evidence in support of the motive part. So I have no hesitation in holding that the prosecution failed to prove the motive setup by it and even it was not sufficient for the appellants to commit such a heinous crime. Both the P.Ws. Have not stated even a single word to prove the motive. The learned counsel for the appellants has rightly relied upon Noor Muhammad's case reported in (2010 SCM R 97) wherein it has been held that once the motive was setup by the prosecution, but failed to prove the same, then prosecution must suffer the consequences and not the defence.
16. As regards the contention of the learned DDPP and the learned counsel for the complainant that the appellants remained proclaimed offenders for a period of more than one month as occurrence in the present case took place on 22-3-2008 while the appellants were arrested in the present case on 24-4-2008 which is a strong circumstance into their guilt, the learned counsel for the appellants has rightly relied upon "Rahimullah Jan v. Kashif and another" (PLD 2008 Supreme Court 298), where it has been held that mere absconsion is not conclusive proof of guilt of accused person. It is only a suspicious circumstance against an accused that he was found guilty of the offence.
However, suspicions after all are suspicions. The same cannot take the place of proof. The value of abscondence, therefore, depends on the facts of each case. The absconsion of the accused may be consistent with the guilt or innocence of the accused, which is to be decided keeping in view overall facts of the case. In "Muhammad Khan and another v. The State" (1999 SCM R 1220), it has been held that the abscondence itself can never remedy the defects in the prosecution case as neither it is necessarily indicative of guilt, nor is ever sufficient by itself to prove the guilt. In "Rasool Muhammad v. Asal Muhammad and 3 others" (1995 SCM R 1373), and "Muhammad Noor and another v. Member-I Board of Revenue,Baluchistan and others", (1991 SCM R 643), the Hon'ble Supreme Court of Pakistan held that abscondence can be a corroborative piece but when the ocular account furnished by the prosecution having not been found confidence inspiring, it cannot be relied upon, the abscondence alone cannot be a ground for maintaining the conviction. In the present case, I have already disbelieved the other pieces of evidence including the ocular account and thus mere abscondence of the appellants cannot be a ground for maintaining their conviction and sentence.
17. I have considered all the pros and cons of this case and have come to this irresistible conclusion that the prosecution could not prove its case against the appellants beyond the shadow of doubt.
It is by now well-settled law that if there is a single circumstance which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances which have created serious doubts about the prosecution story. In Tariq Pervez v. The State' (1995 SCM R 1345), the Hon'ble Supreme Court of Pakistan, at page 1347, was pleased to observe as under:--
5. The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right.'
' The Hon'ble Supreme Court of Pakistan while reiterating the same principle in the case of 'Muhammad Akram v. The State' (2009 SCM R 230), at page 236, observed as under:-- "13 . It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."
18. In the light of above discussion, I am of the considered view that the prosecution has failed to prove its case against the appellants beyond the shadow of doubt, therefore, I accept this appeal, set aside their conviction and sentence recorded by the learned Additional Sessions Judge, Jhelum vide judgment dated 19-12-2009, and acquit them of the charge by extending them the benefit of doubt. They are in custody, they be released forthwith if not required in any other case.