Abdul Sami Khan, J: Through this appeal under section 410, Cr.P.C. Kamar Sajjad alias Kamar Shahzad and Tanveer Ahmad appellants have challenged the vires of the judgment dated 30.10.2008 handed down by the learned Additional Sessions Judge, Kharian through which the appellants were convicted under section 302(b), PPC and they were sentenced to undergo life imprisonment each alongwith compensation amount to Rs. 500,000/- each under section 544-A, Cr.P.C. For the murder of Asjad Mahmood deceased or in default of payment of fine to further undergo simple imprisonment for six months each. The appellants have filed the above captioned appeals against their convictions and sentences whereas the complainant has filed Criminal Revision No. 764 of 2008 for enhancement of sentence of the appellants from life to death. I propose to decide all these matter together through this single judgment.
2. According to the prosecution story unfolded in the FIR the complainant was resident of mouza Kunjial. On 20.05.2005 he alongwith his son namely Muhammad Arif was present in the house of his brother namely Muhammad Sharif as guests at Kharian. At about 11.00 pm in the night Kamar Shahzad rang bell of the house and called Asjad Mehmood his nephew out of house. Asjad Mehmood, nephew of the complainant went out of the house and Yasir Mahmood as well as Muhammad Arif, son of the complainant also followed him. After listening the voice of woman the complainant also came out of the house. He saw that Kamar Shahzad, Tanveer Ahmad, Muhammad Younis and three unknown persons to whom the complainant claimed to be recognized if they appear before him were standing in the street. They stated that they wanted to take Asjad Mahmood with them due to certain important work. As Kamar Shahzad was relative of the complainant party, therefore, allow Asjad Mahmood to go with them. Asjad Mahmood also took his mobile and motorcycle with him. After sometimes the complainant, his son Muhammad Arif and brother of Asjad Mahmood namely Yasir Mahmood also followed them in a motorcycle and when at about 1.30 am they reached at under-constructed road they saw in the headlight of motorcycle that Kamar Shahzad, Tanveer Ahmad and Muhammad Younis, all armed with pistol 30 bore alongwith three unknown persons were dragging Asjad Mahmood who tried to rescue him from them and tried to run away on his motorcycle but Kamar Shahzad made fire from his pistol which landed at the abdomen of Asjad Mahmood. Second fire was made by Tanveer Ahmad which landed on the joint of right leg and belly of Asjad Mahmood. Third fire was made by Muhammad Younis which landed on the left calf of Asjad Mahmood. Asjad Mahmood fell down on the ground after receiving fire-shot injuries. All the accused person also made firing at Asjad Mahmood in fallen position which he sustained on left thigh, right leg, left thigh and back. The accused person threatened and forbade the complainant party to come near otherwise they would also be done to death. The complainant due to fear of life did not go near to Asjad Mahmood and accused persons decamped therefrom. While leaving the place of occurrence the accused persons also took mobile and motorcycle of Asjad Mahmood with them. It is stated that the accused has committed the murder of Asjad Mahmood at the abetment of Muhammad Siddique and Muhammad Afzaal.
Asjad Mahmood succumbed to his injuries and died at the spot. On the application of Hakim Khan complainant FIR No. 276/05, dated 21.05.2005 had been registered at Police Station Sadar, Kharian in respect of offences under sections 302/109/148/149, PPC.
3. The prosecution in order to prove its case against the appellant examined as many as fourteen witnesses before the learned trial court. The ocular account in this case had been furnished by Hakim Khan, complainant (PW9) and Yasir Mahmood (PW10). The medical evidence had been provided by Dr. Farooq Ahmad Bungash, Medical Officer, Rural Health Centre, Pindi Sultanpur (PW2) conducted the Post-mortem Examination on the deadbody of Asjad Mahmood deceased. The investigation in this case was conducted by Muhammad Nawaz, Inspector who appeared before the learned trial court as (PW13) and deposed about various steps taken by him during the investigation of this case. Thereafter investigation was entrusted to Muhammad Aslam, SI (PW12).
Kaleem Anjum, FC (PW6) has furnished evidence with regard to recovery of pistol 30 bore (P-4) from Kamar Shahzad appellant which has been taken into possession vide recovery memo Ex. PH.
He has also stated about recovery of pistol 30 bore (P-5) from Tanveer Ahmad appellant. Rest of the evidence produced by the prosecution is more or less formal in nature.
4. In their statements recorded under section 342, Cr.P.C. The appellants had controverted the allegations leveled against them by the prosecution and they had also professed their innocence.
They have not opted to make statement on oath under section 340(2), Cr.P.C. Inasmuch as have not produced any evidence in their defence.
5. Upon completion of the trial the learned trial court found the case against the appellants to have been proved beyond reasonable shadow of doubt and, thus, convicted and sentenced them as mentioned and detailed above whereas after finding the case of the prosecution to be doubtful the learned trial court acquitted co-accused of the appellant namely Muhammad Arif of the charge. Hence, the above said appeal and revision petition before this Court.
6. Learned counsel for the appellants submit that the prosecution has miserably failed to prove the guilt of the appellants to the hilt from the available evidence. On the other hand learned Deputy Prosecution General contends that the prosecution has amply proved the case against the appellants beyond any shadow of reasonable doubt. The learned counsel for the complainant has added that as the case of the prosecution has been proved so the appellants should have been convicted and sentenced for capital punishment of death instead of life imprisonment each.
7. I have heard the learned counsel for the parties at length, have given my anxious consideration to their arguments and have also scanned the record with their able assistance.
8. A perusal of FIR shows that the occurrence in this case has taken place during intervening night of 20/21.05.2005 at 1.30 am and the matter was reported to the police at 8.30 am whereas the FIR has been chalked out at 8.45 pm on the same day. A perusal of Postmortem Examination Report (Ex. PA) of the dead body shows that the time of death has been written as 7.00 am on 21.05.2005 whereas according to the contents of the FIR the deceased had been fired upon by the culprits at 1.30 am who succumbed to his injuries and died as the spot. This glaring conflict between the timing regarding the death of the deceased obviously caste doubt regarding time of reporting crime to the police and registration of the FIR. It seems that the complainant has managed to stop case-diary at a time when he came to know about death of his nephew and thereafter with connivance of the police he has reported the matter at a time as given in the FIR. Thus, taking into consideration the above mentioned peculiar aspect of the matter this Court comes to a definite conclusion that the FIR was not registered at the time mentioned therein.
9. It has been observed by this Court that to prove the ocular account in this case the prosecution has kept in its fold two eyewitnesses, i.e. Hakim Khan, complainant(PW9) and Yasir Mahmood (PW10). Admittedly it was a night time occurrence wherein the identity of the appellants was highly doubtful as both the above mentioned eyewitnesses claimed that they have seen the appellants dragging and making firing at the deceased in the light of motorcycle but during their deposition before the learned trial court both the eyewitnesses have categorically stated that light of the motorcycle flashed on them and they have seen the occurrence. It is important to point out here that when headlight of motorcycle is flashed on the face of a person, it is impossible for the eyewitnesses to see /watch the acts committed in the surroundings what to talk about witnessing the firing by three accused persons, the locale of injuries and the specification of weapons of offence. It is alleged by the complainant himself in the FIR that as Qamar Sajjad alias Qamar Shahzad appellant was their relative so he allowed his deceased nephew namely Asjad Mahmood to go with them but it is not understandable that when he himself allowed the deceased to go with the appellants then why he alongwith other eyewitnesses followed them without any cogent reason or any element of suspicion. If he has smelled any apprehension of bad intention of the appellants towards the deceased he might not have allowed him to accompany them in the first instance nor any plausible explanation has been given by the eyewitnesses during trial in this regard. Even the reason why the complainant and others followed the deceased and the appellant has not been mentioned in the FIR. This particular fact at one hand creates serious doubt in the prosecution story set forth in the FIR and on the other hand it has also lead to an impression that the eyewitnesses were not present at the scene of crime at relevant time.
10. Admittedly Hakim Khan, complainant (PW9) is maternal uncle of the deceased whereas Yasirm Mahmood (PW10) is real brother of the deceased so the ocular account has been furnished in this case by interest witnesses. Moreover, according to the narration of the FIR Hakim Khan, complainant (PW9) has by chance come to the house of his brother alongwith his son Muhammad Arif who has not been produced as eyewitness. So he is considered by this Court as chance witness whose deposition has not been supported or substantiated by any independent prosecution witness so as to thrown a worthy reliance upon him. It is significant to point out here that during his cross-examination he has admitted the suggestion of defence as correct that he has made improvement in Ex. PO just to strengthen the prosecution story. All this shows that this witness has made glaring improvements in his statement while appearing before the learned trial court and in this way he has lost confidence of this Court upon him. The dishonest improvements made by him forbade this Court to believe his evidence in letter and spirit. It is settled law that evidence of a witness who made dishonest improvement and omission in order to bring his statement in line with the circumstances of case lost its credibility. Reliance in this regard can be placed on the cases of Barkat Ali v. Muhammad Asif and others (2007 SCM R 1812) and Amin Ali and another v. The State (2011 SCM R 323). Similarly, law is also quite settled on the point that evidence adduced by interested and chance witnesses has to be scrutinized with great care and caution and an independent and impartial testimony is required to believe them which is missing in this case.
11. There is yet another important fact in this case that the investigating officer has not mentioned the name of any of the eyewitness in the Inquest Report (Ex. PS) prepared by him which fact also falsified the presence of the eyewitnesses at the spot at relevant time. Had they been present at the scene of crime at relevant time their names should have been mentioned by the investigating officer in the inquest report. Law is also settled on the point that if the names of eyewitnesses are not mentioned in the Inquest Report it means that they were not present at the spot and they have not seen the occurrence. It is also worth mentioning here that on the same set of evidence the learned trial court has acquitted co-accused of the appellants namely Muhammad Arif so the same set of evidence to the extent of appellants cannot be relied upon without strong independent corroboration which is necessary in such like cases. A perusal of evidence adduced before the learned trial court by Naseer Hussain also shows that the deceased himself was also involved in numerous criminal cases of heinous nature, so possibility cannot be ruled out of consideration that some enemy of the deceased has committed his murder and the appellants have falsely been involved in this case. The discussion made above leads this Court to conclude that the eyewitnesses remained unable to prove the ocular account in this case.
12. There are certain other factors which renders the case of the prosecution to be doubtful. In this case as many as six accused persons were involved by the complainant out of whom two accused person namely Muhammad Siddique and Muhammad Afzal have been acquitted by the learned trial court on the basis of compromise, even the evidence qua the culpability of Arif co-accused is also disbelieved especially in the circumstances when evidence of the complainant (PW9) is not above-board who have made dishonest improvement to bring the case of prosecution in line with the circumstances of the case. This fact also shows that majority of accused involved in this case by the complainant have been acquitted of the charge and this peculiar feature leads this Court to conclude that evidence produced by the prosecution is not worthy of credence. In the backdrop of above discussion false implication of the appellants in this case cannot be ruled out of consideration.
13. The medical evidence in this case has been provided by Dr. Farooq Ahmad (PW2) who has categorically mentioned the time of death as 7.00 am in Post-mortem Examination Report (Ex. PA) on 21.05.2005 which fact is totally in contradict with the time mentioned in the FIR by the complainant, thus, there is a contradiction with medical evidence and the ocular account. Even otherwise medical evidence is only used for confirmation of ocular evidence regarding seat of injury, time of occurrence and weapon of offence used during the occurrence, etc. But medical evidence itself does not provide any corroboration qua the identity of the accused person for proving his culpability. Reliance in this regard can be place on the case of Muhammad Sharif and another v. The State (1997 SCM R 866). Therefore, the medical evidence in this case does not support the ocular account.
14. During the investigation of this case two pistols of 30 bore alleged to have been recovery from the appellants yet the fact remains that there is no report of Forensic Science Laboratory is available with the prosecution to established that these pistols were the same which were used by the appellants during occurrence, therefore, in absence of report of Forensic Science Laboratory the recovery effected in this case is inconsequential. Similarly, as stated above the complainant has not mentioned any motive in the FIR rather he has introduced motive while appearing before the learned trial court to the effect that there has been theft in the house of uncle of Qamar Shahzad appellant who has alleged that eighter Asjad Mehmood had himself committed this theft or he had got it committed by someone else. Law is quite settled on the point that when a particular motive is introduced it is the duty of the prosecution to prove the same but during trial the prosecution failed to prove motive which has been introduced at belated stage just to strengthen the prosecution case from confidence inspiring evidence. Even otherwise motive is not attributed to Tanveer Ahmad appellant. Thus, the motive has not provided support to the ocular account in this case.
15. I may observe here that in a murder case carrying death sentence, the evidence produced by the prosecution against the accused persons should be so strong and solid that it should start right from the toe of the deceased on one hand and the same should encircle a dense grip around the neck of the accused on the other hand if any doubt which occurred in the prosecution's case sufficient to demolish the whole structure of evidence and the benefit of doubt must go to the accused especially when the same has been built on the basis of feeble and shaky evidence. It is also settled law that not many circumstances creating doubt in the prosecution case are required but only one circumstance creating doubt in the prosecution case is enough to acquit the accused. Reliance can easily be placed upon 2009 SCM R 230 wherein the Hon'ble Supreme Court has held as under :- "For giving the benefit of doubt it is not necessary that there should be many circumstances creating doubts----Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefit, not as a matter of grace and concession, but as a matter of right."
Similar view was affirmed in the cases of Tariq Pervez v. The State (1995 SCM R 1345) and Muhammad Akram v. The State (2009 SCM R 320). It is also golden principle of Islamic jurisprudence that it is better to acquit ten guilty persons than to convict a single innocent person.
16. For what has been discussion above the prosecution has failed to prove its case against the appellants beyond any reasonable shadow of doubt, so by extending benefit of doubt to the appellants, Criminal Appeal No. 1137 of 2008 filed by Kamar Sajjad alias Kamar Shahzad appellant and Criminal Appeal No. 287-J of 2008 filed by Tanveen Ahmad appellant are, therefore, allowed and the appellants are acquitted of the charge. The sentence passed by the learned trial court against Kamar Sajjad alias Kamar Shehzad appellant has already been suspended by this Court vide order dated 08.02.2012 passed in Criminal Miscellaneous No. 03 of 2011, today he is present before this Court in person, therefore, his surety shall stand discharged from his liability and bail bond submitted by him is hereby cancelled. Tanveer Ahmad appellant is still in jail, he shall be released forthwith, if not required in any criminal case.
17. In sequel to my discussion made above Criminal Revision No. 764 of 2008 filed by Hakim Khan, complainant for enhancement of sentences of the appellants from life imprisonment each to capital sentence of death each is hereby dismissed.