' ARSHAD MAHMOOD TABASSUM, J.---The appellant, namely, Abdul Qayyum, was tried by a learned Additional Sessions Judge, Sahiwal, in case F.I.R. No,533, dated 25-9-2008, offences under sections 302, 324, 398, 34, P.P.C., and was convicted and sentenced vide judgment dated 28-6-2012. The crux of sentence awarded to the appellant by the learned trial court is as under: - Under section 398, P.P.C.Seven years' R.I.
Under sectionTen years' R.I. with 324, P.P.C. fine of Rs,50,000, in default whereof, to further undergo one month S.I.
Under sectionImprisonment for life 302, P.P.C. with Rs,1,00,000 as compensation under Section 544- A, Cr. P. C . , in default whereof, to further undergo six months S . I .
2. The prosecution case, as set out in the F.I.R. Exh.P.F/1, which was registered on the statement Exh.P.F of Javed Iqbal (C.W.1), which he made before Naseem Akhtar S.I. (P.W.11), Incharge Police Post Bahadar Shah, Police Station Noor Shah, District Sahiwal, on 25-9-2008, at the place of occurrence i,e, in the area of village Saidan Shah, where he reached on receiving information about the occurrence through wireless, is that on that night at about 9:00 p.m. Javed Iqbal (C.W.1), along with his Chachazaad Saddam Hussain (C.W.2) was on his way from the house of his sister at a distance of 1/2 K.M. From village Saidan Shah. They were intercepted by three dacoits, who signaled them to stop on pistol point; that two of them were equipped with pistols while the third was having a TAKWA; that the complainant and his companion did not stop due to fear, whereupon, culprits started firing upon them; that Saddam Hussain received a fire on his shin, due to which he sustained injury, resultantly, both of them fell from the motorcycle; that the culprits tried to apprehend them, whereupon they raised alarm; that in the meanwhile, Muhammad Sarwar (C.W.3) and Muhammad Ali (P. W. Not produced) also reached there on two motor cycles; that on seeing the light of motor cycles, the culprits started firing and within their view, one of their (culprits') companion received fire shot due to which he died at the spot, while the remaining culprits decamped therefrom; that in the meanwhile, people of nearby village Saidan Shah gathered at the spot including Yasin son of Manzoor (P.W.9) and Rescue 15; that the said Yasin identified the dead body of deceased dacoit as that of Muhammad Asif son of Bashir, who happened to be the son of his sister; that Mst. Haleema Bibi (P.W.8), mother of the deceased dacoit also reached there, who disclosed that her. Son (deceased) had been murdered by Abdul Qayyum son of Iqbal (appellant), who was accompanied by Sanpaal, who were persuading her son for the last 2/3 days for committing some occurrence; that ultimately, the appellant had murdered her son Muhammad Asif by making fire and that the people present at the spot also confirmed the occurrence. Saddam Hussain (CW.3) was then shifted to the DHQ, Hospital, Sahiwal, being in an injured condition.
3. Naseem Akhtar S.I. (P.W.11), after recording statement of the complainant, sent the same through Ali Sher 69/C to the Police Station for registration of formal, F.I.R. He then inspected the dead body of Muhammad Asif deceased, prepared injury statement Exh.P.0 and inquest report Exh.P.D. He handed over the dead body to Ghulam Rasool 251/C (P. W.1) for escorting the same to the mortuary for post-mortem examination. He inspected the place of occurrence, secured the blood stained earth, made it into sealed parcel and secured the same through memo Exh. CW. 3/A, attested by the witnesses. He also secured two crime. Empties of 12 bore P-9/1-2, made them into sealed parcel and secured through memo Exh.CW.3/B, attested by the P.Ws. He also secured two crime empties of 30 bore P-10/1-2, made into sealed parcel and secured through memo Exh.CW.3/C, attested by the P.Ws. He also recovered BUGDA P-11 and secured the same through recovery memo Exh. CW.3/D, attested by the P.Ws. He also prepared rough site plan of place of occurrence Exh.P.J. He then proceeded to DHQ, Hospital, Sahiwal, where Saddam Hussain injured stood admitted in the emergency. He prepared his injury statement Exh.P.K and handed over the same to Ali Sher 69/C to get Saddam Hussain medically examined. After his medical examination, Ali Sher 69/C produced blood stained clothes of Saddam Hussain including Sahlwar P-6, Shirt P-7 and Safa P-8 along with MLC No, 1737, which he secured through memo Exh. CW.1/A, attested by the P.Ws. He handed over the case property to the Moharrir for safe custody in the Maalkhana. He conducted raids at the residences of the accused persons, but they could not be arrested. On 26- 9-2008, Ghulam Rasool 251/C, after post-mortem Examination of Muhammad Asif deceased, produced before him last worn clothes of the deceased including Shirt P-1, Shalwar P-2 along with a sealed phial P-3, which he secured through memo Exh.P.A, attested by the P.Ws. Ghulam Rasool 251/C also produced before him postmortem report and other police papers. He handed over the above mentioned articles to Moharrir of Police Station. On 17-10-2008, while on being patrolling duty, on spy information, he arrested Saddi Ahmad and Abdul Qayyum accused persons from Adda 50/GD. On 18-10-2008, he obtained their physical remand. On 21-10-2008, Abdul Qayyum appellant made a disclosure and got recovered pistol 30 bore P-4, from his residential house, which the Investigation Officer made into sealed parcel and secured through recovery memo Exh.P.G, attested by P.Ws. On the same day, Saddi Ahmad accused also made disclosure and led to the recovery of pistol 12 bore P-5, from his residential house, which the Investigation Officer made into sealed parcel and secured through recovery memo Exh.P.H, attested by the P.Ws. He also prepared respective rough site plans of places of recoveries Exh.P.G/1 and Exh.P.H/1. He deposited the case property with Moharrir for safe custody and also registered separate cases against the appellant and his co-accused under Section 13 of the Arms Ordinance, 1965. On 22-10-2008, the accused persons were sent to judicial lock up. On 23-10-2008, he summoned Abdul Khalid Revenue Patwari and directed him to prepare scaled site plan Exh.P.H and Exh.P.H/1 which the said Patwari handed over to him on 27-10-2008, to which added notes in the red ink and signed the same. He added offence under section 398, P.P.C., on the instruction of DPP and got the accused persons challaned.
4. Formal charge was framed against the appellant and his co-accused person on 7-4-2009, to which they pleaded not guilty and claimed trial.
5. At trial, the prosecution produced as many as 12 P. Ws. Out of them Dr. Nadar Shabbir (P.W.4), Mst. Haleema Bibi (P.W.8), Yaseen son of Manzoor (P.W.9), Muhammad Sharif (P.W.10), Naseem Akhtar S.I./Investigation Officer (P.W.11), Javed Iqbal complainant (C.W.1), Saddam Hussain (C.W.2) and Muhammad Sarwar (C.W.3) are the material witnesses.
6. Dr. Nadar Shabbir, S.M.O., on 26-9-2008, conducted the post-mortem examination upon the dead body of Muhammad Asif deceased and found the following injuries:--
(1) A lacerated wound with burnt inverted margins, 1 x 1 cm on the upper back of the left fore-arm.
Wound was going deep and upward. It was entry wound.
(2) A lacerated wound with everted margins, 1.5 cm x 1.5 cm at the back of the left upper arm about 2 to 4 cm above the left elbow joint. It was exit wound of injury No,l.
' A lacerated wound with burnt inverted margins 2 x 2 cm incised at the right lower outer back of the right chest. The wound was going deep inward and upward. It, was entry wound.
' In his opinion, cause of death in this case was due to injury No,3, which caused damage to vital organs, as liver, lungs and heart causing massive haemorrhage leading to shock and death. All injuries were caused by fire arm weapon and were ante mortem in nature and were sufficient to cause death in an ordinary course of nature. The time between injuries and death was within 15 minutes and between death and postmortem examination was within 24 hours.
7. Mst. Haleema Bibi, mother of the deceased, while appearing as P. W. 8, stated as under:- "My son Asif aged about 18 years, previously work at Bhauibharu Mill who came to the village being sick. On 25-9-2008, at about Asser Walla my son Muhammad Asif was present at my home. In the meanwhile Saddi son of Wahab caste Sanpaal and Qayum son of Iqbal caste Jhandera came into my house and inquired me about my son Muhammad Asif. On my query they informed me that one Ghulam Nai of Muaq Akbar Shah has died and they wanted to Jinaza Prayers of Said Ghulam Nai and they wanted to take my son Asif with them. My son performed ablution and rode on the motorcycle with accused persons. At about 9:00 p.m. My brother Yaseen and my cousin Sharif through telephone informed me that my son Asif had been murdered. I came to the spot. Both the P.Ws. Informed me that accused persons namely Qayyum and Saddi Ahmad committed the murder of my son Asif by two fire shots made by Qayyum with his pistol at my son. (Objected to by the learned defence counsel being hearsay) and they witnessed the occurrence and after the occurrence, the accused persons fled away from the spot while riding on the motorcycle and they also caused injury to Saddam Hussain (objected to by the learned defence counsel being hearsay).
' The motive for this occurrence was that 2 months prior to the present occurrence, my calf was stolen by Qayyum and his father Iqbal but it came into my knowledge on the spot on our hue and cry the accused persons fled away from the spot while leaving the calf. My son wanted to get register a case against the accused persons but accused persons beg pardon in the Punchayat.
Due to that grudge the accused persons committed the murder of my son by taking him with them deceitfully with the planning.
' The police came to the spot. I got recorded my statement to the Investigation Officer. Later on it came into my knowledge that Investigation Officer after joining hands with the accused persons did not make me the complainant in this case, therefore, I submitted an application for registration of case in the court of learned Sessions Judge, Sahiwal and the same was entrusted to the court of Additional Sessions Judge, Sahiwal who directed the SHO Police Station Noor Shah to register the case on my statement but police did not register my case separately being in league with the accused persons."
8. Yaseen P. W. 9 stated that Asif deceased was son of his sister. On the fateful night, he came to Dhari of Wasavay Shah in order to see Muhammad Sharif, who was his relative and was irrigating his land with tube-well water; that they had a torch light with them; that at about 9: 00 p.m. They heard a fire shot whereupon they attracted to the spot and found that Saddam Hussain and Javed had fallen to the ground from the motorcycle; that they saw in the light of motorcycle and torch, that Abdul Qayyum made two fire shots, which hit Muhammad Asif deceased on the back of his left arm and on the right side of his back; that Saddi Ahmad accused was already sitting on the motor cycle and after firing at Muhammad Asif, Abdul Qayyum appellant rode the motorcycle and both the accused persons fled away from the spot and that they attended to Muhammad Asif, who had succumbed to his injuries at the spot. He further stated that Saddam Hussain was also injured by firing of Abdul Qayyum and Saddi accused and that they informed Mst. Haleema Bibi P.W., who also came to the spot. Similar was the statement of Muhammad Sharif (P.W. 10).
9. The investigation conducted by Naseem Akhtar S.I. Has already been narrated in the earlier portion of this judgment. Javed Iqbal complainant (CM.1) reiterated the same facts as stated by him in his statement Exh. P.F before the police. Similar was the statement of Saddam Hussain. On 13-4-2012, the learned ADPP tendered in evidence reports of Forensic Science Laboratory, Chemical Examiner, Lahore and Serologist as Exh.P.M, Exh.P.N and Exh. P.O, respectively and closed the prosecution evidence. The appellant was then examined under section 342, Cr.P.C., and the entire evidence, produced by the prosecution, was put to him in the shape of questions, which he termed as incorrect. In reply to a question "why this case was registered against you and why P.Ws. Have deposed against you", the appellant Abdul Qayyum, stated as under:-- "It is a false case. The P.Ws. Have deposed falsely due to relationship inter se and with the deceased. It was an unwitnessed occurrence which had taken place in the dark hours of night.
The deceased was member of dacoits who was injured during such dacoity/robbery occurrence.
None of the P.Ws. Was present at the spot at the alleged time of occurrence. I am innocent and have been falsely roped into this case due to enmity."
10. The appellant did not opt to produce any defence evidence, nor he volunteered to enter the witness box to state on oath in disproof of the allegations levelled against him by the prosecution.
Ultimately, the learned trial court, after hearing the arguments of the parties, convicted and sentenced the appellant as aforesaid, hence, this appeal.
11. Learned counsel for the appellant has argued that admittedly it was a dark night occurrence during which there was no occasion for the P.Ws. And C.Ws. To identify the culprits; that it is evident from the contents of statement Exh.P.F of laved Iqbal complainant (C.W.1), which he made before the police that he could not identify culprits and that other P.Ws. Reached the spot subsequent to the disappearance of the culprits from the spot; that in this view of the matter, claim of the eye- witnesses that they had identified the appellant and his co-accused is absolutely false; that in a attempt to claim that they had identified the appellant at the time of occurrence, P.Ws. And C.Ws.
Have made dishonest improvements in their statements which make them unreliable witnesses; that in the absence of direct evidence, the recoveries etc. Cannot be made basis of conviction in this case, because they have corroborative, value and cannot be considered as substantive piece of evidence and that the fact that the learned trial court has-disbelieved the motive part of the prosecution case, as introduced by Mst. Haleema Bibi (P.W.8), it is evident that she and her relatives were bent upon to get the appellant convicted on the basis of false and fabricated evidence. He has, therefore, concluded that prosecution case is full of doubts and discrepancies, hence, the appellant deserves to be acquitted.
12. Conversely, the learned law officer, assisted by the learned counsel for the complainant has fully supported the impugned conviction and sentence.
13. I have given anxious thought to the submissions made by the learned counsel for the parties and myself perused the record carefully with their able assistance.
14. First of all, I take up motive part of the prosecution case. It is claim of Mst. Haleema Bibi that the appellant and his co-accused had taken along her son Muhammad Asif (deceased) in order to murder him on the pretext of committing an occurrence and that in fact, they had grudge against him for a previous occurrence, when they tried to commit theft of her calf and deceased wanted to get a case registered against them. The motive part of the prosecution case has earlier been disbelieved by the learned trial court, because no such motive was introduced by the said Mst.
Haleema Bibi, when Javed Iqbal complainant made statement before Naseem Akhtar S.I./Investigation Officer at the spot and she had stated there that her son was murdered by the appellant and his co-accused persons, who had misled him and taken along him to commit an occurrence. Moreover, when no criminal case was got registered by her or her son against the appellant for attempt to commit theft of her calf, the question of nourishing a grudge by the appellant against the deceased did not arise. It also stands established from the evidence of the P.
Ws. That TAKWA was recovered from the spot, which according to both the C. Ws., the deceased was carrying at the time of occurrence, meaning thereby that the deceased fully participated with his companions to commit the occurrence of dacoity, however, during that occurrence, he had lost his life.
15. As regards the ocular account of the occurrence, the basic document in this regard is F.I.R., which was lodged With promptitude on the statement of Javed Iqbal complainant, who had no concern whatsoever with the deceased and who in his statement before the Investigation Officer did not name the appellant and his co-accused, rather, stated as under:- {{URDU TEXT}} The above reproduced portion of statement of Javed Iqbal complainant clearly shows that neither he could identify the culprits at the spot now he knew their names. He even does not claim that he had noticed features of the culprits, nor had he described their features. This means that till the culprits remained at the spot, he could not identify them. Other two persons regarding whom there could be a probability that they might have identified the culprits were Muhammad Sarwar and Muhammad Ali sons of Adil, who had reached the spot during the occurrence on their motor cycles. The said Muhammad Ali has not been produced, whereas Muhammad Sarwar entered the witness box as C.W.3. It appears that he made dishonest improvements in his statement before the court upon his statement, which he made before the police and tried to establish that he had identified the appellant and his co-accused at the time of occurrence. The following portion of his statement, which he made during cross examination, renders him as an unreliable witness and fully establishes that he could not able identify culprits at the time of occurrence, otherwise, he would have named the appellant and his accused in his statement before the police recorded under section 161, Cr.P.C:-- "I have stated before the police in Exh.DC that three dacoits Qayyum armed with pistol, Saddi Ahmad armed with Carbine and Asif armed with TAKWA emerged from the maiz crop and came on the road. Confronted with Exh.DC where it is not so recorded. I have stated before the police that Saddi and Qayyum started firing with their respective weapons.
' Confronted with Exh.DC where it is not so recorded. I have stated before the police that Asif accused (deceased) made a TAKWA blow on the had of Saddam P.W., confronted with Exh.DC where it is not so recorded. I also state before the police that he raised hue and cry and Saddi and Qayyum started firing on us. Confronted with Exh.DC where it is not so recorded. I have stated before the police that during this firing one of their fire hit Muhammad Asif on his chest and he died at the spot. Confronted with Exh.DC where it is not so recorded. On hearing the noise, one Yasin, paternal uncle of Asif deceased came at the place of occurrence and identified Asif deceased in the headlight of motorcycle. Confronted with Exh.DC where it is not so recorded. I have stated before the police that I, Muhammad Ali, Yasin, Halima, Saddam and Javed saw the occurrence.
Confronted with Exh.DC where it is not so recorded. I have not stated before the police that I, Saddam Hussain, Javed Iqbal came to our village and on the way Saddam Hussain received fire and three persons out of them two were armed with pistols and one armed with TAKWA started firing on us. Confronted with Exh.DC where it is so recorded."
16. The P. Ws. Mst. Haleema Bibi, Yasin and Muhammad Sharif have also made dishonest improvements in their statements, obviously in order to connect the appellant with the occurrence.
Their testimonies are liable to be discarded on this score alone. Reliance in this regard may be placed on the case titled "Akhtar and others v. The State" (2008 SCM R 6), the relevant portion whereof reads 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 such witness. See Hadi Bakhsh's case PLD 1963 Kar. 805."
17. It is also worth-mentioning here that although on the statement of Javed Iqbal complainant, F.I.R. Was chalked out, yet, F.I.R. Finds a mention what was stated by the said Mst. Haleema Bibi at the spot, but there is no mention of the fact that Muhammad Sarwar and Muhammad Ali named above had also identified the culprits. The name of the appellant was mentioned by Mst. Haleema Bibi and not anybody else, but she had reached the spot subsequent to the arrival of Yasin, maternal uncle of the deceased Muhammad Asif, rather the said Yasin has stated that he had telephonically informed Mst. Haleema Bibi, mother of the deceased regarding the occurrence, who came at the spot thereafter. In this regard, he stated:-- "I and Sharif P.W. Telephonically informed Haleeman the mother of the deceased regarding the occurrence who came to the spot."
18. In the light of above discussion, the prosecution has miserably failed to establish that the appellant and his co-accused were identified by the eye witnesses at the spot at the time of occurrence. The entire story implicating the appellant in the occurrence was fabricated subsequently by the P. Ws., which cannot be believed.
19. When the ocular account of the occurrence has been disbelieved, the other evidence in the shape of recoveries etc., which has only corroborative value, cannot be made basis of conviction in this case. In this regard, reliance may be placed on the case titled Noor Muhammad v. The State and another" (2010 SCM R 97), the relevant portion whereof reads as under:-- "It was held in the case of Asadullah Muhammad Ali PLD 1971 SC 541, that corroborative evidence is meant to test the veracity of ocular evidence. Both Corroborative and ocular testimony is to be read together and not in isolation. In the case of Saifullah v. The State 1985 SCM R 410, it was held that when there is no eye-witness to be relied upon, then there is nothing which can be corroborated by the recovery. In the present case, we have already discarded the ocular testimony as such there is no substantive piece of evidence which requires to be corroborated through the recoveries. Thus, the recoveries in the present circumstances of the case have no weight:"
' The learned trial court has, therefore, fallen in error while convicting the appellant in this case. The impugned conviction and sentence, therefore, cannot sustain, which is hereby set aside by accepting this appeal. Resultantly, the appellant stands acquitted while extending benefit of doubt.
The appellant be released forthwith if not required in any other case.