SADAQAT ALI KHAN, J. --- This single judgment shall dispose of Criminal Appeal No, 325-J of 2010 filed by Muhammad Umer, Muhammad Ismail and Muhammad Akram present appellants and Murder Reference No,33 of 2010 sent by the trial Court for confirmation of the death sentence of appellants or otherwise as both matters have arisen out of the same judgment dated 16.07.2010 passed by learned Additional Sessions Judge, Fortabbas according to which the present appellants were convicted and sentenced as under:--- "(i) Muhammad Ismail was convicted under section 302(b)/34 PPC and sentenced to death for committing Qatl-i-Amd of Abdul Basit deceased along-with payment of compensation Rs,1,00,000/- to the legal heirs of the deceased under section 544-A Cr.P.0 and in default thereof six months S.I. He was also convicted under section 392/34 PPC and sentenced to 10 years R.I along- with fine Rs,10,000/- and in default thereof further undergo six months S.I.
"(ii) Muhammad Akram was convicted under section 302(b)/34 PPC and sentenced to death for committing Qatl-i-Amd of Abdul Basit deceased along-with payment of compensation Rs,1,00,000/- to the legal heirs of the deceased under section 544-A Cr.P.0 and in default thereof six months S.I. He was also convicted under section 392/34 PPC and sentenced to 10 years R.I along- with fine Rs,10,000/- and in default thereof further undergo six months S.I.
"(iii) Muhammad Umar was convicted under section 302(b)/34 PPC and sentenced to death for committing Qatl-i-Amd of Abdul Basit deceased along-with payment of compensation Rs,1,00,000/- to the legal heirs of the deceased under section 544-A Cr.P.0 and in default thereof six months S.I. He was also convicted under section 392/34 PPC and sentenced to 10 years R.I along- with fine Rs,10,000/- and in default thereof further undergo six months S.I".
Benefit of section 382-B Cr.P.0 was also extended to all the three accused/present appellants by the learned trial Court in case FIR No, 251 dated 5.11.2008 under section 302/392/411 PPC police station Marot Tehsil Fortabbas District Bahawalnagar.
2. The facts of the case has been stated by Ahmed Khan complainant/PW-13 in his statement before the trial Court and same statement is hereby reproduced for narration of the facts: --- "Abdul Basit deceased was my son who was taxi driver and drive car No,3677/D Karachi. On 04.11.2008 at about 3/4:00 p.m. Muhammad Nawa P.O. And his accused Umar, Muhammad Akram, Muhammad Ismail hired the taxy car of my son for Chalan No:3401/HR Maroot and they had asked my son that they had to collect Thaika of land and they will comeback 08:00 p,m. When my son did not come back till 08:00 p.m. I contacted him on mobile phone. My son- replied they are taking food and aler finishing the same we will turn back at any time. Thereafter my, son did not come back. I remained worried about him for the whole night. Thereafter I took my son Abdul Qadus and owner of the car Iftikhar PW-9 for the search of my son and went to chak No,340/HR. When we reached in between Chak No,339 and 341/HR we found a dead body in the defence canal which was dried at the time and noticed that he had received fire arm injury on his nose I identified the dead body which was of my son Abdul, Basit. After leaving Abdul Qadus and Iftikhar PW with the dead body. I went to the Police. The Police accompanied me- who took into possession the dead body of my son and took his dead body at Police Station. Thereafter the Postmortem examination of the dead body of my deceased son was conducted and after receiving the dead body. On my application Exh.PF FIR Exh.PF/1 was lodged at Police Station Maroot. Exh.PF bears my signature. On 08.11.2008 I again submitted application Exh.PF/2 to the SHO and I nominated Muhammad Nawaz (since P.0) and went to the Maroot in search of the accused persons. When we reached at Petrol Pump of Chak No,325/HR, I inquired from Maqbool PW that whether my car No,3677/D Karachi has come to this Petrol Pump for filling petrol and on this inquiry Maqbool PW replied that on 04.11.2008 at about Shaam Wela Nawaz P.O. Alongwith four persons including the deceased had come to the Petrol pump, Muhammad Nawaz accused P.O. Asked Maqbool PW to take his identity card as guarantee that he will pay the prices of the Petrol on the next date. Maqbool PW replied to Muhammad Nawaz PO that he is well known about his habit and due to this he did not give him petrol, mare on I.D. Card. When we were searching our deceased son and reached Chak No,341/HR where Allah Jawaya PW met us and told us that four days earlier Nawaz and his co-accused after looting has fled away to the unknown place and left this chak. Thereafter we searched for the accused person on 02.12.2008 we came to Imran PW at Fortabbas Imran told us that Ismail accused present in the Court had come to me on 29.11.2008 at Sabah Waylay i,e, 9/10 a.m. And made extra judicial confession before him that he alongwith Nawaz P.O., Muhammad Akram, Umar and Ismail had committed the murder of my son Abdul Basit.
Ismail accused further prayed us for patching up and solve the matter".
3. After registration of the case, investigation started and on completion of the investigation report under section 173 Cr.P.0 was submitted in the trial Court.
4. Learned trial Court after observing legal formalities provided under the Criminal Procedure Code framed the charge on 17.06.2009 against present appellants Muhammad Ismail, Muhammad Akram and Muhammad Umar under sections 302/34, 392/411 PPC to which they pleaded not guilty and prosecution evidence was summoned.
5. Prosecution produced Muhammad Ashraf PW-1, Allah Rakha pW-2, Riaz Akhtar PW-3, Dr. Muhammad Ramzan APMO PW-4, Kouser Ali PW-5, Muhammad Khalid ADI PW-6, Ghulam Mustafa SI PW-7, Maqbool Ahmad PW-8, Iftikhar All PW-9, Khalil Ahmad SI PW-10, Muhammad Khan PW-11, Muhammad Mushtaq PW-12, Ahmad Khan complainant PW-13, Abdul Qadus PW-14, Muhammad Imran PW-15, and Muhammad Asghar Patwari PW-16, whereas PWs namely Zafar lqbal Constable.
Muhammad lqbal, Jaan Muhammad, Allah Jawaya, Niaz Ahmad and Sh. Zafar Shahid were given up by the prosecution being unnecessary and tendered in evidence recovery memo of last worn clothes of the deceased Ex.PA, recovery memo of pistol 30-bore Ex.PB, postmortem report Ex.PC, injury statement Ex.PD, inquest report Ex.PE, complaint Ex.PF, FIR Ex.PF/1, coy of complaint Ex.PF/2, recovery memo of blood stained earth Ex.PH, recovery memo of empty 30 bore Ex.PI, report of Examiner Ex.PM, report of Serologist Ex.PN, report of FSL Punjab Ex.PO and closed the prosecution evidence.
6. Medical evidence was furnished by Muhammad Ramzan, PW-4 APMO THQ Hospital, Fortabbas who stated that on 05.11.2008 at about 07:00 pm he conducted postmortem examination on the dead body of Abdul Basit deceased and observed as under:- EXTERNAL APPEARANCE.
The dead body of a young man of good built 5 ft and 06 inch in length lying straight on postmortem table wearing clothes cream colour Qameez blood stained and white Banyan blood stained and Kareem colour Shalwar not blood stained. Eyes and mouth were opened. Rigor mortis was present all over the body. Postmortem staining was present on dependent parts.
INJURIES.
Injury No,1 A penetrating wound with lacerated inverted margins 1.5 cm in diameter on the bridge of nose 1.5 cm above the tip of nose and 2.5 cm below the base of nose. Wound was blackened and burnt. On Dissection bone and cartilage of nose were fracture it was entrance wound.
Injury No,2 A protruding wound with lacerated everted margins 1 cm in diameter on the back of right side of scalp at base 3 cm away from midline towards right side of scalp and 06 cm away from Pinna of right ear. On dissection occipital and parietal bone were fractured with linear fracture, clotted blood was present at the site of fracture It was an exit wound.
Injury No,3 Abrasion 4 cm x 1 cm on the front and top of the shoulder.
Injury No,04 Abrasion 2 cm x 0.5 cm on outer aspect of left shoulder.
CRANIUM AND SPINAL CORD.
Scalp, skull and vertebrae. Right occipital and parietal bones were fractured. Vertebrae were pale and healthy.
MEMBRANES.
Injuries on right side. Spinal cord was pale and healthy.
THORAX.
All the organs were pale and healthy except blood vessels of nose and base of brain.
ABDOMEN.
All the organs were pale and healthy. Stomach was empty Muscles bones and JOINTS.
Already mentioned. Fracture of nasal bone right occipital, right parietal and base of skull.
REMARKS.
After doing careful external and internal Postmortem examination, I am of the opinion that death was occurred as a result of head injury caused by Injury No,1 which was sufficient to cause death in ordinary course of nature. All the injuries were antemortem in nature and homicidal caused by fire arm weapons Probable time between injuries and death was within three hours and between death and Postmortem was within 24 hours".
7. On the other hand, statements of present appellants were recorded under section 342 Cr.P.0 who refuted the allegations so leveled against them and all the three appellants have not opted to appear as a witness under section 340(2) Cr.P.0 and also did not produce their defence evidence and in reply to question "why this case against you and why the PWs deposed against you?" the appellant Muhammad Ismail replied as under:--- "I am innocent. The whole story of the prosecution is fabricated. I never went to Fortabbas nor I made any extra judicial confession before Muhammad Imran PW-15. Muhammad Imran PW-15 is the friend of Kaleem PW and due to the relations with Kaleem PW-9, complainant lmran PW-15 had deposed against me as the Kaleem PW was employ at the show room of lmran PW, therefore, story of extra judicial confession narrated by Imran PW-15 has been concocted against me in connivance with PW Kaleem. All the recoveries are fabricated and has been planted upon us. I and my co-accused persons has been involved on the basis of suspicion".
Likewise, in reply to question "why this case against you and why the PWs deposed against you?" the appellant Muhammad Umar replied as under:--- "I am innocent. The whole story of the prosecution is fabricated. I have been involved in this case on the basis of suspicion. Neither Ismail my co- accused made any extra judicial confession before lmran PW-15. All the story of extra judicial confession is false and fabricated".
Likewise, in reply to question "why this case against you and why the PWs deposed against you?" the appellant Muhammad Akram replied as under:--- "I am innocent. The whole story of the prosecution is fabricated. I have been involved in this case on the basis of suspicion. Neither Ismail my co-accused made any extra judicial confession before Imran PW-15. All the story of extra judicial confession is false and fabricated".
8. After conclusion of the trial, learned trial Court convicted the present appellants Muhammad Ismail, Muhammad Akram and Muhammad Umar with above stated sentences through judgment dated 16.07.2010. Hence this appeal.
9. Learned counsel for the appellant contended that:---
(i) the judgment of the trial Court dated 16.07.2010 is against law and facts on the file and is liable to be set-aside.
(ii) that the prosecution has failed to prove its case against the present appellants as there are many major discrepancies in the statements of the PWs further there is conflict between ocular evidence and medical evidence and the learned trial Court has convicted the appellants on the basis of surmises and conjectures;
(iii) it is contended that the impugned judgment of the trial Court is not maintainable in the eyes of law;
(iv) lastly submitted that appeal may be accepted and the judgement of the trial Court dated 16.07.2010 may kindly be set aside and appellants may be acquitted.
10. On the other hand, learned DPG assisted by the learned counsel for the complainant has vehemently opposed the appeal and requested for dismissal of the same and submitted that:---
(i) prosecution has proved its case beyond any shadow of doubt against the appellants with solid evidence and prayed for the dismissal of the present appeal.
11. We have heard the learned counsel for the parties and perused the record.
12. The detail of prosecution case as mentioned in complaint Ex.PF recorded on the statement of Ahmed Khan complainant (PW-13) real father of Abdul Basit (deceased) has already been given in paragraph No, 2 of this judgment, therefore, there is no need to repeat the same.
13. According to the FIR, occurrence took place in between night of 4 & 5 November, 2008 whereas FIR was registered on 05.11.2008 at about 09:40 am on the statement of Ahmed Khan PW-13 real father of Abdul Basit deceased. Admittedly, present three appellants, Muhammad Ismail, Muhammad Akram and Muhammad Umar are not nominated in the FIR and Ahmed Khan PW13 complainant real father of Abdul Basit deceased is not the eye witness of the occurrence. He simply stated in his application Ex.PF dated 5.11.2008 moved for the registration of the FIR Ex.PF/1 that his deceased son Abdul Basit was driving Car No, 3677/B Karachi as a Taxi driver pertaining to lftikhar Ali PW-9 and on 04.11.2008 at about 3/4 p.m four unknown persons hired above stated Car for going to Chak No, 340/HR Maroot from Haroonabad and one was aged about 35/36 years whereas rest of three persons were aged about 23/24 years and he made a call to his son Abdul Basit deceased at about 07:00 pm at his mobile number and asked for his location who in reply stated that he was eating food with the passengers and will come back at night time who when did not come back till morning and complaint could not establish contact on his mobile phone and became worried and thereafter Abul Quidoos PW-14 real son of Ahmed Khan PW-13 and lftikhar Ali PW-9 owner of the above stated Car went for the search of Abdul Basit deceased and found his dead body in the dried defence Canal near Chak No, 339/HR. He also moved an application Ex.PF/2 on 8.11.2008 about three days after registration of the FIR Ex.PF/1 i,e, 5.11.2008 in which he nominated only Muhammad Nawaz coaccused of the present three appellants (Proclaimed Offender).
14. In view of the above statement of Ahmed Khan complainant PW-13 admittedly, neither the Car of Abdul Basit deceased was hired by unknown four persons in presence of the complainant PW-13 on 4.11. 2008 at about 3/4 p.m from Haroonabad for Chak No, 340 Maroot nor he had seen deceased Abdul Basit in the company of the four unknown accused (including present appellants) anywhere after hiring the Car of Abdul Bait deceased. He further stated that Maqool Ahmed PW-8 told him that on 4.11.2008 at about 'Sham Waila' Nawaz (proclaimed offender) alongwith four persons including the deceased Abdul Basit had come to the patrol pump. Muhammad Nawaz accused (P.0) asked Maqbool PW-8 to take his identity card as guarantee that he will pay the price of the patrol on the next day but Maqbool PW-8 did not give him patrol due to his previous record.
Complainant Ahmed Khan PW-13 further stated that Allah Jawaya PW (not produced) met them and told as under:--- "told us that four days earlier Muhammad Nawaz and his co accused after looting has fled away to theunknown place and left the Chak".
15. Admittedly, Maqbool Ahmed appeared as PW-8 and stated that he works on petroleum owned by one Sajjad Ahmed in the area of Chak No, 325/HR Maroot and on 4.11.2008 at about 7:30 pm he was present on the said patrol pump meanwhile a Car of white colour bearing No, B-3677/Karachi Dotson in which four persons were present came there. One person namely Muhammad Nawaz was personally known to him and he asked him that he had no money for petrol and he can deposit his Identity Card for payment but Maqbool Ahmed PW-8 refused to give him petrol on I.D.
This witness did not name Ismail, Muhammad Akram and Muhammad Umar present appellants while making statement before the trial Court and even did not identify them in the Court during the trial while making his statement. Further he stated in cross examination that his statement was recorded by the police 7/8 days after the occurrence and no explanation was furnished by him for recording his statement before the police with the delay of about 7/8 days and further stated that the Car was parked by the accused at a distance of two Kanals from petrol pump and it was a pitched dark at that time and he noted the registration number of the Car on bulb and tube-light of the petrol pump and only Muhammad Nawaz P.O alone came to him and requested for petrol and he could not identify the remaining persons present in the Car. So evidence of this witenss Maqbool Ahmed PW-8 is not liable to be believed for maintaining the conviction of present appellants even otherwise, his delayed statement without explanation is not believable and this witness is also disbelieved. Allah Jawaya above stated PW has not been produced by the prosecution during the trial so the evidence of Ahmed Khan PW-13 complainant to his extent is hearsay and is in-admissible in evidence and same is hereby discarded. Further Ahmed Khan complainant PW- 13 stated in cross-examination that except Allah Jawaya above stated PW (not produced) none of other PWs i,e, lmran PW-15, Qadoos PW-14, Iftikhar PW-9 and Maqbool PW-8 had seen lastly deceased in the company of the accused persons.
16. In view of the above, it is concluded that the evidence of Ahmed Khan complainant PW-13 is not sufficient for sustaining the conviction of present three appellants.
17. Lmran PW-15 stated that on 29.11.2008 he was sitting at his Show-room situated at Lari Adda Fortabbas where at about 11/12 (noon) time Ismail present appellant came there and told him that they have committed occurrence and further asked him that he is resident of this city and sought for help for resolving the matter. He further told him that he will bring all the four accused persons before him and thereafter did not return back. Lmran PW-15 further stated that Ismail told him that they had left for Karachi alongwith Akram, Umar present appellants and Nawaz (proclaimed offender) on 1.11.2008. He further stated that they had tried to get the vehicle on rent but failed and thereafter came to Haroonabad where they hired the Taxi for coming to Maroot at sum of Rs,2000/- and further Ismail present appellant told Imran PW-15 that he alongwith other accused went to Patrol-pump at Chak No, 325 Maroot. He further told that accused Muhammad Nawaz (P.0) asked the employee of patrol pump and gave identity Card as security that they will pay the amount of patrol on the next day but employee refused to provide patrol and he further stated that thereafter they went in the house of sister of Muhammad Nawaz (P.0) at Chak No, 342/HR where they took their meal. PW-15 further stated as under:--- "He further told me that he alongwith his co-accused Muhammad Akram, Umar and Muhammad Nawaz (P.0) and Basit deceased taxi driver left for Bahawalpur. In the way there, was defence Canal where I fired at the deceased and we took one thousand and mobile phone Soni Ericsson from the pocket of the deceased and threw the dead body of the deceased Basit in the defence Canal and thereafter we all four accused persons went to Bahawalpur in that Taxi Car where Nawaz accused asked us to stay there and Muhammad Nawaz accused P.O took the Taxi Car with him and after about 2/3 hours Muhammad Nawaz returned back leaving the Taxi Car at Multan".
18. In cross examination, Imran PW-15 stated that he had not stated in his statement recorded by the police under section 161 Cr.P.0 that Ismail accused/present appellant came to his Show-room at about 11/12 noon time. He further stated that when Ismail came to his Show-room he could not duly identified him and on his telling that he is the person who has been coming to the Show-room alongwith Muhammad Nawaz P.O. He further stated in cross-examination that he did not inform on 29.11.2008 to the police that Ismail accused had confessed his guilt about the murder of Abdul Basit deceased before him. He further stated in cross examination that he had narrated in his statement recorded under section 161 Cr.P.0 that Ismail accused told him that Muhammad Nawaz P.0, Umar and Muhammad Akram present appellants caught hold of the deceased and he fired at Abdul Basit deceased which was confronted to him with Ex.DD his statement before the police where it was not so recorded. Further it was mentioned in the statement Ex.DD that Muhammad Nawaz P.O fired at the deceased. This witness Muhammad lmran PW-15 has made dishonest improvement regarding the attribution of the fire upon Abdul Basit deceased as in his statement before the police Ex.DD he had stated that Muhammad Nawaz (P.0) had fired upon Abdul Basit deceased whereas in his statement before the trial Court he omitted that portion of his statement and made dishonest improvement stating therein that Ismail present appellant had fired upon Abdul Basit deceased and this dishonest improvement made by Muhammad lmran PW-15 in his statement subsequently to strengthen the prosecution case cannot be relied upon because it is a settled principle of law that 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 improvement once found deliberate and dishonest casts serious doubt on the veracity of the witness. Reliance is placed on case titled "Akthar Ali and others Vs. The State (2008 SCM R 6) in which Hon'ble Supreme Court of Pakistan has observed at page 12 as under:--- "it is also a settled maxim when a witness improves his version to strengthen the prosecution case his improved statement subsequently made cannot be relied upon as the witness has improved his statement dishonestly, therefore, his credibility becomes doubtful on the well-known principle of criminal jurisprudence that improvements once found deliberate and dishonest cast serious doubt on the veracity of the such witness"
19. Further according to Muhammad man PW15 Ismail present appellant had confessed his guilt before him on 29.11.2008 whereas we have perused Ex.DD statement of Muhammad lmran PW-15 which was made by him during the investigation before the 1.0 on 02.12.2008 with an un-explained delay of about three days which itself creates doubt and is not believable. Reliance is placed on case titled Rahat Ali V. The State (2010 SCM R 584) in which Hon'ble Supreme Court of Pakistan has observed at page 588 as under:--- "it has also been observed by this Court that delay in recording the statement without furnishing any plausible explanation is also fatal to the prosecution case at the statement of such witness was not relied upon in the case of Syed Muhammad Shah Vs. The State (1993 SCM R 550).
Therefore, the evidence PW-2 is coming within the scope of above rules laid down by this Court.
Hence his statement cannot be safely relied upon in the peculiar facts and circumstances of the present case"
20. Admittedly, at the time of alleged extra judicial confession by Ismail present appellant he was not arrested by Muhammad lmran PW-15 and in this regard matter had not been reported to the police promptly and Muhammad Imran PW-15 is neither relative of the deceased Abdul Basit nor elder of the family of the deceased Abdul Basit and is not an influential person of the locality where Abdul Basit deceased was residing. It is settled law that extra judicial confession is a weakest type of evidence and it is procured at any time during the investigation when there is no direct evidence available to the prosecution. Court before acting upon the retracted extra judicial confession must inquire into all material points and surrounding circumstances to satisfy itself full that the confession cannot but be true because an extra judicial confession is not a direct evidence and it must be corroborated in material particulars before being made the basis of conviction and the status of the person before whom extra judicial confession is made must be kept in view. Even otherwise, this delayed statement of lmran PW-15 is not corroborated by any other independent witness which is not reliable as observed by us earlier. Motivating factors for a person guilty of offence entailing capital punishment to make a confession generally are:---
(i) to boast off,
(ii) to ventilate the suffocating conscience and
(iii) to seek help when actually trapped by the investigation from a third person who is authorirative social or officially But all these factors are missing in the instant case. Actually, extra judicial confession have almost become a norm when the prosecutions cannot otherwise succeed. When the I.O fails to properly investigate the case, he resorts to padding and concoctions like extra judicial confessions, which by now have become the signs of incompetent investigation. Judical mind, therefore, before relying upon such weak type of evidence, capable of being effortlessly procured, must ask a few questions, like why the accused should at all confess, what is the time lag between the occurrence and the confession, whether the accused had been fully trapped during investigation before making the confession, what is the relationship or friendship of the witness with the maker of the confession.
21. It is finally concluded that alleged extra judicial confession made by Ismail present appellant on 29.11.2008 before Muhammad Imran PW-15 in the instant case is a padding and mere concoction not corroborated by other reliable evidence and same is herby disbelieved. Reliance is placed on case titled Hamid Nadeem V. The State (2011 SCM R 1233) in which Hon'ble Supreme Court of Pakistan has observed at page 1237 as under:-- We are well-conscious of the fact that conviction can be based on extra judicial confession being regarded as a weak type of evidence by itself, utmost care and caution has to be excersied in placing reliance on such confession. Recovery of crime weapon and blood stained clothes of appellant could have supported the prosection case but in the instant case that too are not beyond doubt as would be clear from the subsequent discussion"
22. PW-10 Khallel Ahmed S.IO/I.O of this case stated that on 14.12.2008 he arrested Ismail present appellant who on 19.12.2008 during interrogation disclosed and led to the recovery of Car P-7 No. 3677/B Karachi (Dotson Model 1968) from Ch. Flying Coach Adda Bahawalpur which was taken into possession through recovery memo Ex.PK attested by Muhammad Khan PW-11.
23. We have seen the recovery memo Ex.PK. where it is mentioned that Muhammad Nawaz P.O had handed over above stated Car to Mushtaq (Hocker Wagon Flying Coach, Adda Bahawalpur) and same was at the time of recovery of Car in the custody of Mushtaq and admittedly Mushtaq has not been produced by the prosecution and even his statement was not recovered by Khaleel Ahmed S.I/I.O of his statement case during investigation. However, this shows that above stated Car was not in possession of Ismail present appellant at time of the recovery. Further PW-15 Muhammad Imran stated in his examination in chief that after occurrence Muhammad Nawaz (P.O) took the Taxi Car with him and left it at Multan. Admittedly nothing relating to the present appellants was recovered from the Car and this Car itself cannot be an incriminating evidence against Ismail present appellant and others appellants because according to the prosecution story mentioned in the recovery memo of the Car Ex.PK, the Car was in the custody of Mushtaq whose statement has never been recorded by the I.O during the investigation and the Car was entrusted to him by Muhammad Nawaz (P.O) and further no witness has been produced by the prosecution in whose presence Car was hired by the present appellants or accused were seen in the Car in the company of Abdul Basit deceased and thus the above stated recovery is not believable and same is hereby disbelieved, even otherwise, Muhammad Khan PW.11 is an interested witness being Behnoi Of Abdul Basit deceased.
24. It is admitted priniple of law that one tainted piece of evidence could not corroborate another piece of tainted evidence because if thiP is allowed to be done then very necessity of corroboration would be frustrated. Reliance is placed on case titled "Morsel Kaztni align Qqfpar Shah ape' others Vs. The State (209@ PM 1410) in which lipn'ple Spreme Coyfiof pakistan has pbseRced at page 1417 as under: "it is vigil-settled that one tainted piece of evidence epuld not corr9bprate another piece of tainted evidence because if this allowed to be done then very necessity pt corroboration would be frustrated"
25. Medical evidence may confirm the ocular evidence with regard to the seat of the injury, nature of the ipjHry, kind of weapon used in the occurrence but it would Of pp hect the accused with the commission of crime". FceOpce is placed on case tilted Altaf HuSsain and others V. ';::aktfar Hussain and ochers (PLJ 2008 SC 687).
26. Ghulam Mustafa PW-7 SI/1.0 pf this cape stated that on 5.11.2008 during the spot inspection, fig taken crime empty of 30-bore P-6 which was taken into possession through recovermemo Ex.PI.
This witenss never stated that The crime empty was sealed into parcel at the time of recovery, of the same from the place of occurrence on the same day. Whereas Abdul Qadoos PW-14 real brother of deceased Abdul Basit and real son of Ahmed Khan complainant stated that during the spot inspection Ghulam Mustafa SI/1.0 of this case PW-7 collected crime empty of pistol P-6 which was taken into possession through recovery memo Ex.PI attested by him but never stated that the crime empty was sealed into parcel at the time of collection from the place of occurrence on the same day which itself creates doubt regarding the Recovery of the crime empty from the place of occurrence. Further Pw-10 Khaleel Ahmed S.I/I.O of this case stated that on 26.1.2009 Umar present appellant during the interrogation disclosed and led to the recovery of pistol P-3 which was taken into possession through recove by memo Ex. PB attested by Riaz Akhtar Constable PW-3 but did not state that same Was sealed into parice at the times of the recovery which itself Creates doubt.
Further Ex.PO respect of Forensic Science Laboratory shows that crime empty Ex.P6 and pistol P-3 were received together in the laboratory on 4.41.2009 through Muhammad Rafique 723/C (constable) who was not produced by the prosecution. Further PW-1 Muhammad Ashraf 1138/C.
(constable) stated before the trial Court that on 12.12.2008 he was performing his duty at police station Maroot on the same day Kasur Ali Muhamar handed over to him. One sealed parcel said to contain empties of 30 bore pistol, another Parcel said to contain blood stained earth fot, onward transmission In the office of Chemical Examiner and F.S.L respectively but report of FSL Ex.PO does not show that Muhammad Ashraf PW-1) (constable) deposited parcel of crime empty in the office of said laboratory which makes the recovery doubtful and further Kasur Ali Muharrar of police station Maroot Pw-5 While contradicting Muhammad Ashraf constable PW-1 stated that on 12.1.2008 he handed over one sealed parcel said to contain crime empty to Muhammad Ashraf constable for its onward transmission to FSL and no Pw was not produced by the prosecution to state that pistol P-3 was taken by him for depositing the same In the office of FSL. Even otherwise, crime empty of 30 bore pistol P-6 and pistol 30-bore Ex.P3 have been sent to FSL together and possibility of the manufacturing of the crime empties before its dispatch to the said laboratory could not be ruled out of consideration and thus same recovery is hereby disbelieved due to above stated reasons. Reliance is placed on case titled Masood Aslam alias Shada V. The State (2002 P Cr.LJ 1603) in which Hon'ble Division Bench of this Court has observed at page 1610 as under:-- "The recoveries effected during the investigation of this case had not been believed by the learned trial Court for the detailed reasons recorded in the impugned judgment. Even otherwise the alleged recoveries of fire-arm weapons from the appellants were not of much avail to prosecution as the statements of PWs 2, 5 and 11 show that the crime empties and the said weapons had been sent to the Forensic Science Laboratory together. Thus a possibility of manufacturing of the said crime empties before their dispatch to the Forensic Science Laboratory Could not be ruled out of consideration."
27. It is concluded that prosecution could not prove its case beyond any shadow of doubt against, all the three present appellants and for giving the benefit of doubt it is not necessary that the should be many Circumstances creating doubts. If there is circumstance which create reasonable doubt in a Prudent mind about the guilt of the accused then the accuseed would be entitled to the benefit of could not as a matter of grace and concession but as a matter or right Reliance is placed on case titled Muhammad Akram v. The State (2009 SCM R 230) in which Hon'ble Supreme Court of Pakistan has held at page 236 as under: "the nunutsheli of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt the benefit thereof must accure 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 be benefit of doubt not as a matter of grace and Concession but as a matter or right".
28. From the facts and circumstances narrated above, we are persuaded to hold that prosecution has badly failed to bring home guilt of the appellants to the hilt and the learned trial Court ,was not justified in convicting them while basing upori untrustworthy/uncorroborated evidence deposed by interested witnesses which even otherwise is full of material contradiction especially unreliable story deposed by Ahmad Khan complainant PW13, Abdul Qadus PW-14 and Muhammad Imran PW-
15. Resultantly, salutary principle of benefit of doubt is extended in favour of the appellants. The Criminal appeal No,325-J of 2010 filed by Muhammad Ismail, Muhammad Akram alias CNG Bakera and Muhammad Umar present appellants is accepted and convictions and sentences awarded by the learned trial Court through judgment dated 16.07.2010 are set-aside and the appellants are ordered to be acquitted of the charge in case FIR No, 251 dated 5.11.2008 under section 302/392/411 PPC police station Marot, Tehsil Fortabbas District Bahawalnagar. They are directed to be released forthwith if not required in any other case. Murder Reference No,33 of 2010 is answered in negative and death sentences of Muhammad Ismail, Muhammad Akram and Muhammad Umar present appellants are not confirmed.