Abdul Sami Khan, J.:- Through this criminal appeal under Section 410 Cr.P.C. Awais appellant has challenged the conviction and sentence awarded to him by the learned Additional Sessions Judge, Hafizabad in case FIR No.73/2004 dated 08.02.2004 for the offences under Sections 302, 34 PPC, registered at Police Station Saddar, Hafizabad, vide judgment dated 12.07.2007, the same is reproduced as under:- Under Section 302(b) PPC read with Section 34 PPC to undergo imprisonment for life with direction to pay Rs.1,00,000/- as required under Section 544-A Cr.P.C. and in default thereof to further undergo 06-months S.I.
The benefit of Section 382-B Cr.P.C. was also extended to the appellant.
2. Brief facts of the case according to FIR (Ex.PF/1) are that on 08.02.2004, the complainant alongwith Altaf Hussain and Gulzar Hussain were present at his dera. At about 07:30 p.m. Altaf Hussain asked them to go out in order to ease themselves. They were going on the road after crossing Saim Nallah Bridge, when Riaz Hussain brother of the complainant came behind them on a bicycle and stopped there. On the asking of complainant, Riaz Hussain told that he was going to make a telephone call from village Mamna. Riaz Hussain had gone 8/10 karams ahead of them, when suddenly two unknown accused emerged in front of him. One unknown accused immediately fired at Riaz Hussain, hitting on right side of his chest, as a result of which he fell down and succumbed to the injuries at the spot. The accused while resorting to aerial firing decamped from the place of occurrence. They were chased by the PWs and could be identified if came across.
3. After registration of FIR, the investigation of the case was conducted by Syed Zafar Ali Shah S.I.
During investigation, Awais appellant alongwith Ahsan Mumtaz (tried separately being juvenile) was arrested in connection with the instant case. He was put to the test of identification parade and after completion of the investigation, the report under Section 173 Cr.P.C. was submitted in the learned trial Court. At the commencement of trial, after observing legal formalities, learned trial Court framed charge against the appellant, to which he pleaded not guilty and claimed trial. To prove its case, the prosecution produced as many as thirteen witnesses during trial before the learned trial Court. Ocular account was furnished by Malik Ijaz Ahmad complainant (PW-7) and Gulzar Hussain (PW-8). Khalid Hussain (PW-9) is the witness of recovery of weapon of offence, Muhammad Walayat (PW-10) identified the dead body of Muhammad Riaz deceased at the time of his postmortem examination. Medical evidence was furnished by Dr. Captain Muhammad Arif (PW-1) who conducted postmortem examination on the dead body of the deceased. Syed Zafar Ali Shah S.I. (PW-11) testified about the investigation conducted by him, while Syed Shehbaz Hussain Naqvi (PW-12) deposed regarding identification parade of the appellant conducted under his supervision. Rest of the prosecution witnesses, more or less, are formal in nature.
4. After completion of the prosecution evidence, the statement under Section 342 Cr.P.C. of the appellant was recorded by the learned trial Court. He professed innocence and pleaded false implication in the case. He did not opt to get record his statement under Section 340(2) Cr.P.C. and did not produce any witness in his defence.
5. At the end of trial, after thrashing entire evidence and evaluating arguments advanced by learned counsel for the parties in support of their respective versions, the learned trial court found the prosecution's case against the appellant to have been proved beyond reasonable doubt, convicted and sentenced him as mentioned and detailed in paragraph No.1 above. Hence, the instant appeal before this Court.
6. Learned counsel for the appellant, in support of this appeal, contends that the judgment passed by the learned trial Court is against law, facts and material available on the file; the appellant is absolutely innocent, he has been falsely implicated in this case merely on the basis of suspicion; he is not named in the FIR and even during investigation as well as during trial before the learned trial Court, no avert act has been attributed to the appellant by the alleged eye witnesses, who otherwise were maneuvered by the prosecution in order to create eye witness account against the appellant; the alleged eye witnesses were chance witnesses and their presence at the spot is not established; they are closely related to the deceased and are not only interested, but also inimical towards the appellant, so their testimonies cannot be relied upon to maintain conviction of appellant; there are material contradictions between the statements of eye witnesses recorded before the trial Court and they made dishonest improvements in their statements in order to justify their presence at the spot at the time of occurrence, so the evidence of such witnesses does not hold credence; the appellant and the alleged eye witnesses belong to the same village and were well known to each other prior to the occurrence, so the complainant has himself dislodged his presence from the spot by not nominating him in the FIR, because, had the appellant committed this occurrence, the complainant must have nominated him straightway in the FIR and in these eventualities, identification of the appellant during the course of identification parade is also of no use to the case of the prosecution; even otherwise, the identification parade has not been conducted in accordance with law, so the same bears no force; the weapon of offence was planted on the appellant only to strengthen the case of the prosecution against him; the prosecution has miserably failed to prove its case against the appellant beyond the shadow of doubt; thus, this appeal be accepted and the appellant be acquitted of the charge.
7. On the other hand, learned Deputy Prosecutor General appearing on behalf of the State assisted by learned counsel for the complainant opposes the submissions made by learned counsel for the appellant and submits that the matter was reported to the police without any element of deliberation and consultation; by lodging FIR against unknown accused, the complainant has shown his bonafide by not involving any innocent person in this case; both the eye witnesses had seen the appellant at the place of occurrence, therefore, they duly identified him during the course of his identification parade; the complainant and the PWs had no enmity, ill-will or grudge against the appellant to falsely implicate him in this case of heinous nature and even otherwise, the defence has not brought on record any ulterior motive of the complainant side to falsely involve the appellant in this case; the ocular account is duly supported by the identification parade of the appellant; the weapon of offence was also recovered on his pointing out and he was found guilty by the investigating officer during investigation of the case; the prosecution has successfully brought the guilt of the appellant to the hilt, so he does not deserve any leniency; the appeal filed by the appellant lacks force, hence the same be dismissed.
8. I have heard the learned counsel for the appellant, learned Deputy Prosecutor General and learned counsel for the complainant and have also gone through the record with their able assistance. As per FIR (Ex.PF/1), the occurrence took place on 08.02.2004 at about 07:30 p.m. and the matter was reported to the police by Malik Ijaz Ahmad complainant (PW-7) by moving application for registration of FIR (Ex.PF) before the concerned Station House Officer, in consequence of which FIR (Ex.PF/1) was chalked out at Police Station Saddar Hafizabad on the same night at 08:40 p.m. The place of occurrence is at a distance of six miles from the police station. There is a delay of one hour and ten minutes in reporting the matter to the police, but the fact remains that the appellant is not named therein as the culprit of the occurrence and in this eventuality, the FIR (Ex.PF/1) does not render any sort of corroboration to the case of the prosecution qua the identification of the appellants.
9. The case of the prosecution against Awais appellant is based on the statements of PW-7 Malik Ijaz Ahmad complainant and PW-8 Gulzar Hussain, his identification during identification parade, medical evidence furnished by Dr. Captain Muhammad Arif (PW-1), recovery of weapon of offence (P5) and lastly the evidence of motive. Firstly, I would like to evaluate the eye witness account in the shape of statements of Malik Ijaz Ahmad complainant (PW-7) and Gulzar Hussain (PW-8). Minute reading of the statements of Malik Ijaz Ahmad complainant (PW-7) and Gulzar Hussain (PW-8) shows that they have made so many improvements in their statements before the learned trial Court in order to establish their presence at the spot at the time of occurrence. The most crucial improvement which these witnesses made while appearing in the witness box is that they set up a specific motive behind the incident. In the FIR (Ex.PF/1), no motive whatsoever has been mentioned by Malik Ijaz Ahmad complainant (PW-7), however, during trial he claimed that Mumtaz Hussain, father of Ahsan Mumtaz co-accused wanted to kidnap a councilor in order to hand over him to another candidate of Tehsil Nazim, who was snatched by the deceased from Mumtaz Hussain, due to which a quarrel took place between Mumtaz Hussain and the deceased a year prior to his murder. Similarly, no features of the accused and specification of weapons, used during the occurrence have been mentioned in the FIR (Ex.PF/1), but during trial, it was stated by the PWs that Awais appellant was armed with pistol .30 bore, while his co-accused was armed with 12 bore gun with which he fired at the deceased. During cross-examination on Malik Ijaz Ahmad complainant (PW-7) and Gulzar Hussain (PW-8), they were duly confronted by the defence with their previous statements and it was found that they improved their previous stance only to strengthen the case of prosecution against the appellant. It is settled law that when a witness improves his statement to strengthen the prosecution case and the moment it is concluded that the improvement was made deliberately and with malafide intention, the testimony of such witness does not remain reliable. While holding so I am fortified by the dictum of law laid down by Hon'ble Supreme Court of Pakistan in the cases reported as "Syed Saeed Muhammad Shah and another versus The State"
(1993 SCM R 550) and "Muhammad Rafique and others versus The State 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 vs. 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".
As the improvements were made by the complainant and the eye witness dishonestly and deliberately, which were duly confronted by the defence during cross examination, therefore, the same have created serious doubt about their veracity and credibility and it is not safe to rely upon the evidence of such witnesses. Guidance can be sought from the case of "Akhtar Ali and others Vs. The State" (2008 SCM R 6) Hon'ble Supreme Court of Pakistan has held 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 witnesses. See Hadi Bakhsh's case PLD 1963 Kar. 805."
Although Malik Ijaz Ahmad complainant (PW-7) and Gulzar Hussain (PW-8) tried their best to establish their presence at the place of occurrence, yet I have observed that their presence at the spot at the time of occurrence was not natural, because, the FIR (Ex.PF/1) as well as the statements of Malik Ijaz Ahmad complainant (PW-7) and Gulzar Hussain (PW-8) clearly reflect that both these witnesses were chance witnesses and they could not advance any plausible justification for their presence at the place of occurrence. In case of "Nadeem @ Nanha @ Billa Sher vs. The State" (2010 SCM R 949), the Apex Court, while discussing the evidentiary value of the statements chance witnesses, has observed as below:- "The complainant PW4 and Muhammad Afzaal PW5 are chance witnesses as they should not normally be present at the place of occurrence and it is difficult to rely upon their statements being chance and highly interested witnesses."
10. Another important aspect of the case is that the occurrence took place on 8th of February, 2004 at about 7:30 p.m. meaning thereby, that there was pitched darkness at the time of occurrence, but the whole prosecution case is silent about the source of light in which Malik Ijaz Ahmad complainant (PW-7) and Gulzar Hussain (PW-8) identified the assailants from a distance of 8/10 karams. Thus being so, if it is presumed that these witnesses were present at the spot at the time of occurrence, even then it was naturally impossible for them to identify the actual culprits due to the darkness of night. I am also conscious of the fact that the appellant as well as Malik Ijaz Ahmad complainant (PW7) and Gulzar Hussain (PW-8) belong to same village. Malik Ijaz Ahmad complainant (PW-7) and Gulzar Hussain (PW-8) admitted in their cross-examination that the appellant was residing in village Kot Nawan, District Hafizabad since the time of his birth. A vital question arises here as to if Malik Ijaz Ahmad complainant (PW-7) and Gulzar Hussain (PW-8) were present at the spot at the time of occurrence and they had seen the appellant and his co-accused committing murder of Riaz Ahmad deceased, then why they did not nominate him straightway in FIR as well as in statement under Section 161 Cr.P.C. This unnatural conduct shown by the witnesses of ocular account itself has made their credibility highly doubtful.
Keeping in mind the above discussion, I am of the definite view that Malik Ijaz Ahmad complainant (PW-7) and Gulzar Hussain (PW-8) were not present at the spot at the time of occurrence, therefore, I am not inclined to believe them as trustworthy or confidence inspiring witnesses.
11. During arguments, learned counsel for the complainant has laid great emphasis that the appellant was successfully identified by the eye witnesses during the course of identification parade, which was conducted under the supervision of Syed Shehbaz Hussain Naqvi (PW-12). Since both the alleged eye witnesses i.e. Malik Ijaz Ahmad complainant (PW-7) and Gulzar Hussain (PW- 8) have specifically admitted in their statements before the learned trial Court that they as well as the appellant had been residing in the same village, so in such situation, it was not difficult for the witnesses to identify the appellant during the course of identification parade. In these eventualities of the facts, the identification parade has got no value in the eyes of law and that cannot be used against the appellant as a corroborate piece of evidence. Even otherwise, I have observed that at the time of his identification parade, both the eye witnesses failed to disclose any role played by the appellant during the occurrence. It is settled law that identification of an accused by the PWs without ascribing role is of no value. Reliance can easily be placed upon the cases of Siraj-ul-Haq and another vs. The State (2008 SCM R 302), Nazir Ahmad vs. Muhammad Iqbal and another (2011 SCM R 527) and Muhammad Fayyaz vs. The State (2012 SCM R 522).
12. Insofar as medical evidence is concerned, it is by now well settled law that medical evidence may confirm the ocular evidence with regard to the seat of injuries, nature of the injuries, kind of weapon used in the occurrence, but it would not connect the accused with the commission of the offence. Reference in this respect may be made to the case of "Muhammad Tasaweer versus Hafiz Zulkarnain and 2 others" (PLD 2009 SC 53). Similar view was taken by the Hon'ble Supreme Court of Pakistan in the cases of "Mursal Kazmi alias Qamar Shah and another versus The State" (2009 SCM R 1410) and "Altaf Hussain versus Fakhar Hussain and another" (2008 SCM R 1103). In the absence of trustworthy and confidence inspiring ocular account, medical evidence does not bear any significance
13. As far as the recovery of pistol .30 bore (P5) from the appellant vide memo Ex.PG is concerned, I have already observed above that no specification of the weapons with which the assailants were armed at the time of occurrence is mentioned in the FIR (Ex.PF/1). Even there is no positive report of the Forensic Science Laboratory and in such situation, recovery of pistol .30 bore (P5) is of no use to the case of the prosecution.
14. Now adverting to the evidence of motive, it is significant to point out here that no motive has been alleged by the prosecution in the first information report (Ex.PF/1) of the incident and as already discussed above, motive was introduced by Malik Ijaz Ahmad complainant in his statement recorded by the learned trial Court as PW-7, wherein he stated that Mumtaz Hussain, father of Ahsan Mumtaz co-accused wanted to kidnap a councilor so as to hand over him to another candidate of Tehsil Nazim, who was snatched by the deceased from Mumtaz Hussain, due to which a quarrel took place between Mumtaz Hussain and the deceased. On the other hand, Gulzar Hussain (PW-8) simply stated that an altercation took place between the deceased and father of Ahsan Mumtaz co-accused, but he did disclose any such occurrence regarding abduction of councilor. So, the statements of Malik Ijaz Ahmad complainant (PW-7) and Gulzar Hussain (PW-8) to the extent of motive part of the prosecution are contradicting each other and even otherwise, the above said councilor did not join the investigation to support the version of the complainant and the prosecution also did not bother to produce him before the learned trial Court to establish motive behind the occurrence. In these eventualities, I am of the considered view that the prosecution has miserably failed to prove motive part of its case.
15. After having looked into the prosecution case from all angles, I have noted that the case to the extent of the appellant is of doubtful nature and his conviction and sentence on the basis of such type of shaky and unreliable evidence cannot be maintained. It is settled by the Apex Court of the country that in case of doubt, its benefit must go to the accused not as a matter of grace but of right. The same proposition came up for consideration in the case reported as Muhammad Akram versus The State (2009 SCM R 230), wherein, at page 236, the Hon'ble Supreme Court of Pakistan, held as under:- "13. The nutshell 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 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 SCM R 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".
(emphasis supplied)
16. 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. 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 the accused instead of the prosecution. Reliance can be placed on the case of "Waqar Nazir and others vs. The State" (2007 SCM R 661). 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. So, after considering all the circumstances, this Court is of the considered view that the prosecution has failed to prove its case against the appellant beyond any shadow of doubt, therefore, this appeal is allowed, the impugned judgment is set-aside and the appellant is acquitted of the charges leveled against him in the instant case. He is present in the Court on bail, his sureties stand discharged from the liability of surety bonds.