' ABDUL SAMI KHAN, J.--- Appellants-Muhammad Yaqoob alias Goshi and Muhammad Asif have assailed the judgment dated 17-12-2009 handed down by the learned Additional Sessions Judge, Kasur in case F.I.R.No, 100/2008 dated 2-3-2008 for offences under sections 302, 324, 34 P.P.C., registered at. Police Station 'B' Division, Kasur whereby they have been convicted and sentenced as under:-- Muhammad Yaqoob alias Goshi appellant.
' Under section 302(b) P.P.C. To death with compensation to the tune of Rs,1,00,000 to be paid to the legal heirs of deceased under section 544-A Cr.P.C. And in default thereof to further undergo simple imprisonment for six months. Under section 324 P.P.C. To rigorous imprisonment for ten years along with fine of Rs,20,000 or in case of default of payment further undergo simple imprisonment for six months. Under section 337-D P.P.C. To rigorous imprisonment for ten years as tazir and to pay Arsh 1/3rd of Diyat to injured Sana Jahangir.
Muhammad Asif (appellant) and his co-convict Muhammad Shafique alias Lali ' Under section 302(b) P.P.C. To imprisonment for life each with compensation to the tune of Rs,1,00,000 each to be paid to the legal heirs of deceased under section 544-A Cr.P.C. And in default thereof to further undergo simple imprisonment for six months each. Under section 324 P.P.C. To rigorous imprisonment for ten years each along with fine of Rs,20,000 each or in case of default of payment further undergo simple imprisonment for six months each. Under section 337-D P.P.C. To rigorous imprisonment for ten years each as tazir and to pay Arsh 1/3rd of Diyat to injured Sana Jahangir.
' All the sentences awarded to the appellants/ convicts were directed to be run concurrently.
Benefit of, section 382-B, Cr.P.C. Was also extended in favour of the appellants/convicts.
2. The learned trial Court has also submitted Murder Reference No, 28 of 2010 for confirmation or otherwise of the death penalty awarded to Muhammad Yaqoob alias Goshi appellant whereas the complainant has also filed Criminal Revision No,48 of 2010 for enhancement of sentences of the appellants/convicts from life imprisonment to capital sentences of death each and enhancement of amount of compensation. It is also significant to point out here that Muhammad Asif appellant had also filed Criminal Appeal No,31 of 2010 against his conviction and sentences. We propose to decide all these matters through this single judgment.
3. Brief facts of the case as disclosed in the F.I.R. Exh.PB/1 which was recorded on the statement (Exh.PB) of the complainant namely Jahangir Hussain (P.W.8) are as under:- "that he is resident of Jamat Pura and deals in the P. V. C. Pipe. On the eventful night at about 9:45 p.m. His brother Mohsin son of Nazir Ahmad, Caste Jat resident of Mohallah Jamat Pura and his daughter namely Sana aged about 18 years proceeded from their house to bazaar on motorcycle Honda 70. After sometime, his daughter informed him by mobile phone that some one has hit fire shot to them. On this information, he along with Faisal son of Mumtaz Ali and Allah Wasaya etc. Came out of his house. They shifted both the injured to the District Headquarter Hospital, Kasur on motorcycle and motorcycle rickshaw. The doctor referred the injured to Lahore General Hospital, but in the way his brother Moshin died while his daughter Sana injured has been admitted in the Lahore General hospital. He further stated that unknown accused have committed murder of his brother Mohsin and have injured his daughter. The occurrence has taken place opposite old railway quarters near Railway Line".
4. After registration of the case, investigation was conducted by Muhammad Nazir S.I. (P.W.13) and after completion of the same, challan was submitted against the appellants/convicts. Charge was framed against the convicts and Muhammad Azam on 8-7-2008 under sections 302, 324, 34 P.P.C.
To which they pleaded not guilty and claimed trial.
5. To substantiate its version at the trial, the prosecution produced as many as fifteen witnesses.
Ocular account was furnished by Jahangir Hussain complainant (P.W.8), Sana Jahangir (P.W.9) and Faisal (P.W.11). They have supported the prosecution version. Muhammad Nazir 5.1. (P.W.13) is the Investigating Officer. He testified about the investigation conducted by him.
6. Dr. Muhammad Azam Khokhar, Medical Officer (P.W.-16) on 2-3-2008 had conducted postmortem examination on the dead body of Mohsin Ali son of Nazir Ahmad and found the following injuries:
(1) A lacerated wound of 1-1/2 x 1 cm on outer side of right eye, 3 cm from it. Margins abraded.
Wound probing into posterior side of skull into injury No,9.
(2) A lacerated wound of 2 x 1-1/2 cm on middle of right eyebrow. Margins of the wound irregular.
(3) A lacerated wound of 1 x 1 cm on right side of forehead, 2-1/2 cm above the injury No,2. Wound circular with abraded margins.
(4) A lacerated wound of 3-1/2 x 2 cm on right side of forehead, 3 cm right of injury No,3. Margins abraded.
(5) A lacerated wound of 1-1/2 x 1 cm, I cm above injury No,4. Margins of the wound abraded.
(6) A lacerated wound of 1 x I cm on right side of forehead lateral to injury No,5. Margins of the wound abraded.
(7) A lacerated wound of 1-1/2 x I cm on right side of forehead, 2 cm lateral to injury No,6. Margins of the wound abraded.
(8) A lacerated wound of 1-1/2 x 1 cm on right side of skull, 3 cm above the injury No,7. Brain matter protruding out
(9) A lacerated wound of 1/2 x 1/2 cm on back of right side skull, 4 cm behind injury No,8. Brain matter protruding out.
7. On dissection, skull fractured in horizontal direction on part adjacent to a large gutter 12 x 8 cm on right side of forehead and parietal part underneath the wounds. According to the doctor cause of death is due to severe loss hypovolemic shock to the vital organ brain as a result ofr all the injuries, which was sufficient in ordinary course of nature to cause death. All the injuries were ante- mortem and were caused by firearm weapon. Probable time that elapsed between injuries and death was with 1-1/2 hours and between death and post mortem was within twelve hours approximately. The post mortem report is Exh.P.W.16.
8. Dr.Mumtaz Ahmad, Medical Officer (P W-7) on 1-3-2008 had conducted medical examination of injured namely Mst.Sana Jahangir daughter of Jahangir Ahmad and found the following injuries:-- A gaping firearm wound 5 x 5 cm with inverted margins surrounding tattooing in area 6 x 6 cm on the back of prominence of right buttock. Corresponding hole was seen present on blood- stained clothes which were not signed due to uncooperative behaviour of the attendants.
' Vide operation notes findings Exh.PR, Dr.Mumtaz Ahmad (P.W.7) noted as under:--
(1) 500 CC hemoperitoneum
(2) 3 Pin hole perforations in terminal ileum 8cm proximal to ileocecal junction.
(3) None expanding retroperitoneal hematoma.
(4) 8 x 8 cm bone deep wound mid of right gluteal region.
9. According to the doctor the injury suffered by Sana Jahangir was fresh and caused by firearm weapon, which was declared as Jurh Jaifah falling under section 337-C, P.P.C.
10. After placing on record reports of Chemical Examiner Exh.PS, report of Serologist Exh.PT and report of Forensic Science Laboratory Exh.PU, the prosecution closed its evidence.
11. The appellants/convicts in their statements under section 342 Cr.P.C. Denied all the allegations levelled against them by the prosecution and professed their innocence. While answering the question "why this case against you and why the P.Ws. Have deposed against you", Muhammad Yagoob alias Goshi appellant stated as under:-- "It is incorrect. The P. Ws. Are related inter se and inimical towards me and my co-accused. I have been falsely involved in this case due to pressure of complainant party and Halqa Nazim. It is a dark night occurrence which was unwitnessed. Sana Jahangir P. W. 9 did not nominate anybody in her statement under section 161, Cr.P.C. No identification parade was conducted in this case. The actual culprits were not traceable. The complainant put the pressure through Halqa Nazim upon the police without any incriminating material, police booked me and my co- accused in this false case. Police in order to show Karwai to the Higher Officers involved me and my co-accused in this case".
' The remaining convicts. Muhammad Asif and Muhammad Shafiq replied to the above said question on the same lines as of Muhammad Yaqoob alias Goshi. The appellants/convicts opted not to appear as their own witnesses under section 340(2), Cr.P.C. Rather produced copies of F.I.Rs, (Exh.DA to Exh.DD) in their defence.
12. At the end of the trial, after thrashing the entire evidence and evaluating the arguments advanced by the learned counsel for the parties in support of their .Respective versions, learned trial Court proceeded to convict and sentenced the appellants/convicts as mentioned in paragraph No,1 of this judgment.
13. Learned counsel for Muhammad Yaqoob alias Goshi appellant contends that the appellants are not named in the first information report and they have falsely been implicated in this case through written application of the complainant after one month of the occurrence without any plausible explanation and without disclosing the source of information regarding the involvement of the appellants in this case; no identification parade was conducted in this case which is mandatory; the appellants are absolutely innocent in this case and the evidence produced by the prosecution suffers from material irregularity; the complainant and the appellants/convicts are the residents of same vicinity and they were known to each other prior to the alleged occurrence; the complainant is not the eyewitness of the alleged occurrence and the sole eye-witness . Is Mst.
Sana Jahangir daughter of the complainant and she has made dishonest improvements in her statement before the trial Court in order to bring her statement in line with the prosecution case; the person from whom allegedly Mst.Sana Jahangir has borrowed cell phone to inform her father regarding the occurrence has not been produced by the prosecution before the trial Court nor his statement was recorded by the Investigating Officer, in this way a best piece of evidence has been withheld by the prosecution; it was a night time occurrence, so the identification of the assailants is not possible; recovery has been planted upon the appellant Muhammad Yaqoob alias Goshi in order to strengthen the prosecution case, even otherwise, there is glaring violation of section 103 Cr.P.C. And such recovery has got no value in the eyes of law; the report of Forensic Science Laboratory Exh.PU has been maneuvered as the empties and the weapon of offence allegedly recovered from Muhammad Yagoob alias Goshi appellant were sent to the Forensic Science Laboratory on 30-4-2008, in such like situation when the empties and the weapon of offence have been sent to the Forensic Science Laboratory together, the positive report of Forensic Science Laboratory becomes inconsequential and has got no value; the prosecution has mainly relied upon the . Statement of Muhammad Azam co-accused (approver), who has made statement at a belated stage, the statement of such an approver is inadmissible in evidence, if not corroborated by any independent piece of evidence, which is not coming forth in this case. He has relied upon PLD 2009 SC 814 and PLD 1997 SC 447. Learned counsel for Muhammad Asif appellant while adopting the arguments of learned counsel for Muhammad Yaqoob alias Goshi submits that no recovery has been effected from Muhammad Asif appellant and the P.W. Has not ascribed any role to him; he has been involved in this case by the complainant on the asking of police as the police wanted to get rid of this untraced case. Lastly, learned counsel for the appellants contended that the prosecution has miserably failed to prove its case beyond any shadow of doubt and the evidence so produced is not confidence-inspiring and is not worthy of credence, therefore, the appellants deserve clean acquittal.
14. On the other hand, learned Deputy Prosecutor-General assisted by learned counsel fox' the complainant opposed the submissions made by learned counsel for the appellants and submitted that the matter was reported to the police without any element of deliberation and consultation; the occurrence was reported to the police in a manner as it took place; apart from confidence- inspiring evidence of the injured P.W., there is strong corroborative evidence on the file of this case in the shape of the weapon of offence recovered on the pointing out of Muhammad Yaqoob alias Goshi appellant, the report of Chemical Examiner, Serologist and of Forensic Science Laboratory .12 bore gun recovered from Muhammad Yaqoob alias Goshi appellant was sent to the office of Forensic Science Laboratory along with empties taken into possession by the Investigating Officer from the spot and the report of F.S.L. Is positive, which connects Muhammad Yaqoob alias Goshi appellant with the occurrence; the prosecution evidence also finds support from the evidence of Muhammad Azam co-accused (approver) whose application under section 338, Cr.P.C. Was allowed by the trial Court and thereafter his statement was recorded in which he has narrated each and every aspect of the occurrence correctly; the testimony of the prosecution witnesses is in line and the defence had failed to shatter the veracity of the prosecution witnesses; the prosecution case stands proved from all corners against the appellants; the ocular account is fully corroborated by the medical evidence; the P.Ws. Had no previous enmity with the appellants to falsely depose against them during trial; the presence of Mst.Sana Jahangir injured/eye-witness at the spot is duly proved by her statement recorded as P.W.9; the appellants have failed to bring on record anything on the basis of which it can be construed that P.Ws. Have made false statements against them or that they had become false witnesses on account of ulterior motives; the substitution of the appellants for the real culprits is a very rare phenomenon and it cannot be imagined that one can involve an innocent person in such a heinous offence by leaving the real culprits; when the prosecution proved its case through reliable and trustworthy evidence beyond any doubt not alleging the motive by the complainant would become immaterial and would not adversely affect prosecution case. Lastly submit that as there is no mitigating circumstance in favour of the convicts Muhammad Asif and Muhammad Shafique, so the learned trial Court had committed material irregularities and illegalities while awarding lesser sentence to them and prayed that as it is a case of heinous nature, so under vicarious liability, Muhammad Asif and Muhammad Shadique be sentenced to death which is normal penalty. Learned counsel also prayed that the sentence of death awarded to Muhammad Yaqoob alias Goshi be confirmed.
15. We have considered the arguments advanced by learned defence counsel, the learned Deputy Prosecutor-General and learned counsel for the complainant and have also gone through the entire record with their valuable assistance.
16. It has been noticed by us that the appellants are not named in the F.I.R. By the complainant rather they have been involved by the complainant after one month of the occurrence through an application moved by the complainant in which the complainant has failed to disclose the source of information as to how he came to know about involvement of the appellants in this case. It is important to note here that there is no supplementary statement of the complainant recorded by the investigating officer separately and only application of the complainant in which he has named the appellants with specific role is on record which has been considered as supplementary statement by the trial Court. Even otherwise, it is settled law that supplementary statement has got no value in the eyes of law. Reliance can be placed upon the case of "Falak Sher alias Sheroo v. The State" (1995 SCM R 1350). Admittedly, the complainant is not an eyewitness of the occurrence, so his statement has to be corroborated by the statement of eye-witness Mst.Sana Jahangir (P.W.9), who is an injured witness in this case. Mst. Sana Jahangir (P.W.9) has not named any of the appellants in her statement recorded by the Investigating Officer under section 161, Cr.P.C. During trial, she has made lot of improvements in order to bring her statement in, line with the supplementary statement of her father Jahangir Hussain (P.W.8). The statement of Mst.Sana Jahangir while appearing before the trial Court as P.W.9 she has improved her statement and named the appellants and also attributed specific role to them and this part of her statement has been duly confronted by the defence during the trial with her statement recorded by the Investigating Officer under section 161, Cr.P.C. This fact creates doubts qua the veracity of witness of the ocular account.
It is well-settled by now that when a witness improves his/her statement to strengthen the prosecution case and the moment it is concluded that the improvement was made deliberately and with mala fide intention the testimony of such witness does not remain reliable. While holding so we are fortified by the dictum of law by the Hon'ble Supreme Court of Pakistan in the cases reported as "Syed Saeed Muhammad Shah and another v. The State" (1993 SCM R 550) and "Muhammad Rafique and others v. The Stale and others" (2010 SCM R 385), wherein, at page 396, the learned Apex Court of the country, has been pleased to observe as under:-- "This Court in the case of Saeed Muhammad Shah v. State (1993 SCM R 550), observed that if a witness improves his statement on material aspects of the case then such improvement is not worthy of reliance and the evidence of such witness requires corroboration. In the case of Khalid Javed v. State (2003 SCM R 1419), while reiterating the above rule, it was further observed that such witness is to be considered to be wholly unreliable and it is not advisable to place explicit reliance upon his evidence".
17. Seeking guidance from the above judgments of the Apex Court, we hold that the evidence of Mst.Sana Jahangir injured (P.W.9) is not reliable.
18. Admittedly, it is night time occurrence, which took place at 10:00 p.m. Neither the complainant in his statement under section 154, Cr.P.C. Nor Mst.Sana Jahangir injured (P.W.9) in her statement under section 161, Cr.P.C. Has named the accused. In such-like situation, the identification of the accused is mandator, which has not been conducted in this case. Reliance can easily be placed upon "Farman All v. The State" (1997 SCM R 971) wherein it has been held by the Hon'ble Supreme Court of Pakistan that holding of identification parade is necessary, if names of the culprits are not given in the F.I.R. Holding of identification parade is not only a check against false D implication, but it is a good piece of evidence against genuine culprits.
19. It has been observed by us that the learned trial Court has heavily relied upon the statement of Muhammad Azam co-accused (approver) while recording conviction of the appellants. Learned counsel for the appellants has invited our attention to the answer of Muhammad Azam co- accused (approver) to question No,12 in his statement under section 342, Cr.P.C. Wherein he has stated as under:-- "It is incorrect. The P. Ws. Are related inter se and inimical towards me and my co-accused. I have been falsely involved in this case due to pressure of complainant party and Halqa Nazim. It is a dark night occurrence which was unwitnessed. Sana Jahangir P. W.9 did not nominate anybody in her statement under section 161, Cr. P.C. No identification parade was conducted in this case. The actual culprits were not traceable. The complainant put the pressure through Halqa Nazim upon the police without any incriminating material, police booked me and my co- accused in this false case. Police in order to show Karwai to the Higher Officers involved me and my co-accused in this case".
20. It is admitted fact that there are made by said Muhammad I Azam (approver), one statement got recorded under section 342, Cr.P.C. Prior to giving him the status of approver and the other after he was made approver. There are lot of discrepancies between both these statements. Be that as it may, it is settled principle of law that testimony of approver is to be scrutinized with care and caution and cannot be acted upon without corroboration in material particulars by reliable evidence. Reliance is placed upon "Chaudhaty Muhammad Yaqoob v. The State and others" (1992 SCM R 1983), wherein it has been held as under:- "Approver's first statement seemed to be in line with his exculpatory confession, which he made prior to grant of pardon to him for making him an approver. Testimony of such person had to be scrutinized with care and caution and could not be acted upon without corroboration in material particulars by reliable evidence".
21. It has been observed by us that Muhammad Azam accused has been made approver at a belated stage, when whole evidence of the prosecution was recorded by the trial Court and the statements of appellants/accused were also recorded under section 342, Cr.P.C., which caused great prejudice to the case of the appellant. Under the law, it is mandatory upon the trial Court that when an accused has been made approver, his trial is to be separated from rest of the accused. It has further been observed that after allowing the application of Muhammad Azam (approver) under section 338, Cr.P.C. The trial Court has not amended the charge rather the application moved by the prosecution for amending the charge was turned down. The statement of Muhammad Azam (approver) was also not put to the appellants in their statement recorded under section 342, Cr.P.C. It is settled law that evidence which is not put to an accused in his statement under section 342, Cr.P.C. Cannot be used against him. The trial Court had given him the status of an approver simply on the ground that the legal heirs of the deceased have agreed to pardon Muhammad Azam accused, so he has been made approver in this case. This mandatory provision has not been complied with by the trial Court. It has also been observed by us that the trial Court has not fulfilled the mandatory legal provisions of law while allowing the application of Muhammad Azam under section 338, Cr.P.C. To make him approver.
22. As far as recovery of .12 bore gun (P.10) and report of the Forensic Science Laboratory (Exh.PU) are concerned, we are not inclined to place reliance on these pieces of evidence for the reasons that according to record, the appellants were arrested in this case on 6-4-2009 and the recovery of .12 bore gun (P.10) was allegedly effected from Muhammad Yaqoob alias Goshi appellant on 15- 4-2009, the empties were taken into possession by the investigating officer on 2-3-2009 and according to the report of Forensic Science Laboratory Exh.PU, the gun and empties were received by the office of Forensic Science Laboratory on 30-4-2009 together. We may observe here that when empties and weapon of offence are sent to the Forensic Science Laboratory together, positive report of the Forensic Science Laboratory becomes inconsequential and cannot be relied upon for the reason that possibility of firing of these crime empties from the .12 bore gun (P.10) cannot be ruled out.
23. It is universally recognized principle of law that conviction can only be based upon unimpeachable evidence and certainty of guilt and any doubt arising in the prosecution case must be resolved in favour of the accused not as a matter of grace but of right. In Ayub Masih v.
The State (PLD 2002 Supreme Court 1048), at page 1056, while quoting a saying of the Holy Prophet (P.B,U.H.) that 'mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent" and making reference to the maxim, that 'it is better that ten guilty persons be acquitted rather than one innocent person be convicted, the learned Apex Court of our country has been pleased to observe as under:-- "...It is hardly necessary to reiterate that the prosecution is obliged to prove its case against the accused beyond any reasonable doubt and if it fails to do so the accused is entitled to the benefit of doubt as of right. It is also firmly settled that if there is an element of doubt as to the guilt of the accused the benefit of that doubt must be extended to him. The doubt of course must be reasonable and not imaginary or artificial. The rule of benefit of doubt, which is described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". In simple words it means that utmost care should be, taken by the Court in convicting an accused. It was held in The State v. Mushtaq Ahmed (PLD 1973 SC 418) that this rule is antithesis of haphazard approach or reaching a fitful decision in a case. It will not be out of place to mention here that this rule occupies a pivotal place in the Islamic Law and is enforced rigorously in view of the saying of the Holy Prophet (P. B.
U. H. ) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent".
24. After considering all the circumstances, we are of the view that the prosecution has failed to prove its case against the appellants beyond any shadow of doubt, therefore, both the appeals are allowed, the convictions and sentences awarded to the appellants through the impugned judgment are set aside and the appellants are acquitted from the charge by extending them the benefit of doubt. They are behind the bars and shall 'be released forthwith if not required to be detained in any other case.
25. However, before parting with this judgment, we feel necessary to mention here that Muhammad Shafiq alias Lali co-convict of the appellants was also convicted and sentenced by the learned trial Court through the same judgment (dated 17-12-2009), but he has not preferred any appeal against his conviction. So, taking guidance from the case-law reported as "Amin Ali and another v. The State" (2011 SCM R 323), the benefit of this judgment shall also be given to the co-convict Muhammad Shafiq alias Lali, who has not preferred appeal against his conviction and sentence awarded to him by the learned. Trial Court, thus, keeping in view the above discussion, the conviction and sentences of Muhammad Shafiq alias Lali co-convict awarded to him by the learned trial Court vide judgment dated 17-12-2009 are also set aside and he shall also be released forthwith if not required to be detained in any other case.
26. Coming to Criminal Revision No,48 of 2010 filed by Jahangir Hussain complainant for enhancement of the sentence of imprisonment for life awarded to Muhammad Asif and Muhammad Shafiq alias Lali to the sentence of death and also for enhancement of the amount of compensation imposed upon Muhammad Yaqoob alias Goshi, since we concluded that the prosecution case is of doubtful nature, therefore, there is no question of enhancement of the quantum of sentences awarded to Muhammad Asif and Muhammad Shafiq alias Lali and amount of compensation imposed upon Muhammad Yaqoob alias Goshi. 'Resultantly, Criminal Revision No,48 of 2010 is dismissed.
27. Murder Reference is answered in the NEGATIVE and sentence of death is NOT CONFIRMED.