' MALIK SHAHZAD AHMAD KHAN, J.---This judgment shall dispose of Criminal Appeal No.290 of 2008 filed by Muhammad Ashraf and Muhammad Shafqat (appellants) against their convictions and sentences, Petition for Special Leave to Appeal No.17 of 2008 preferred by Ghulam Sarwar complainant against the acquittal of Saif Ullah and Muhammad Zaman, Criminal Revision No. 173 of 2008 submitted by the complainant Ghulam Sarwar for enhancement of sentence of imprisonment for life to death of Muhammad Shafqat convict and Murder Reference No.34 of 2008, sent by the learned trial Court, for confirmation or otherwise, of the sentence of death awarded to Muhammad Ashraf appellant, as all these matters have arisen out of the same judgment dated 10-3-2008, passed by the learned Additional Sessions Judge, Mandi Bahauddin.
2. Muhammad Ashraf and Muhammad Shafqat appellants were tried in private complaint under sections 302/148/149 of P.P.C. After conclusion of the trial, vide its judgment dated 10-3-2008, the learned trial court acquitted Saif Ullah and Muhammad Zaman co-accused of the appellants, whereas, has convicted and sentenced the appellants as under:-- ' Muhammad Ashraf ' Under section 302(b)/34 of P. P.C. To death for committing Qatli-Amd of Ahmad Khan deceased.
He was also ordered to pay Rs.1,00,000 (Rupees one hundred thousand only) as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. Or in default to suffer simple imprisonment for six months.
' Muhammad Shafqat ' Under section 302/34 of P. P. C. To imprisonment for life as Ta'zir for committing Qatl-i-Amd of Ahmad Khan deceased. He was also ordered to pay Rs. 1,00,000 (Rupees One Hundred Thousand only) as compensation to the legal heirs of the deceased under section 544-A Cr. P. C. Or in default to suffer simple imprisonment for six months.
' The benefit of section 382-B, Cr. P. C. Was also extended to the appellant.
3. Brief facts of the case as given by the complainant, namely, Ghulam Sarwar (P.W.3) in his private complaint Exh. PA are the same which were given by him in the F.I.R. Lodged by him. According to the facts as given in the complaint Exh. PA, on 4-2-2006, he (complainant) along with Nisar Ahmad "behnoi" (given up P.W.), Haji Muhammad Asghar (P.W.4) "phophizad" and his father Ahmad Khan (deceased) was coming back from village Charanwala to their own village after inquiring the health of one Chaudhry Nawaz and at about 3-00 p.m., when they reached at the katcha path at a distance of two acres away from the Dera of Mehdi Khan, the complainant Ghulam Sarwar (P.W.3), Nisar Ahmad (given up P.W.) and Haji Muhammad Asghar (P.W.4) stopped at the cattle-shed of above said Mehdi Khan in order to see his cow, whereas, Ahmad Khan (deceased) '(father of the complainant) went ahead at some paces. In the meanwhile, Muhammad Ashraf and Muhammad Shafqat appellants, Abdul Sattar accused (since P.O.), Saif and Muhammad Zaman accused (both since acquitted) armed with Kalashnikoves, came out from the cluster of trees from the western side of katcha path and encircled Ahmad Khan (deceased). Muhammad Ashraf appellant raised lalkara that Ahmad Khan (deceased) be taught a lesson for fracturing his legs and he be not let alive and, thereafter, Muhammad Ashraf appellant made a burst of fires with his Kalashnikov which hit on the chest, belly and lower side of abdomen of Ahmad Khan (deceased), who fell down, facing downwards. Muhammad Shafqat appellant, Abdul Sattar accused (since PO), Saif Ullah and Muhammad Zaman accused (both since acquitted) then made a burst of fires with their respective weapons on the person of Ahmad Khan (deceased) which hit on his waist, left buttock, left flank, left shoulder and on his back. The complainant along with Nisar Ahmad (given up P.W.) and Haji Muhammad Asghar (P.W.4) witnessed the occurrence but due to fear did not go near them. The appellants along with their co-accused after being satisfied that Ahmad Khan had died, decamped from the place of occurrence. After their departure, the complainant along with P.Ws.
Attended to Ahmad Khan (deceased) who succumbed to the injuries at the spot.
' The motive behind the occurrence as set forth in the F.I.R., as well as, in the private complaint was, the previous litigation between the deceased and the accused persons.
4. The matter was reported to the police by the complainant Ghulam Sarwar (P.W.3) through his Fard Bayan Exh. PC, whereupon, the formal F.I.R. Was chalked out.
5. The appellants Muhammad Ashraf and Muhammad Shafqat were, arrested on 24-4-2006 by Bahu Khan, SI (CW-1). After completion of investigation, the challan was prepared and submitted before the learned trial court. The appellants and their aforementioned co-accused were declared innocent by the police during investigation. The complainant Ghulam Sarwar (P.W.3) being dissatisfied with the police investigation filed a private complaint in the concerned court in which he alleged that the local police being in league with the above mentioned culprits had illegally declared them innocent.
' The learned trial court, after recording preliminary evidence summoned Muhammad Ashraf, Muhammad Shafqat (appellants), Saif Ullah and Muhammad Zaman co-accused (since acquitted). The learned trial court, after observing legal formalities, as provided under the Code of Criminal Procedure, 1898 framed charge against the appellants and their co-accused on 29-11- 2006, to which they pleaded not guilty and claimed trial.
6. In order to prove its case, the prosecution produced seven witnesses while two witnesses namely Bahu Khan, S.I. And Munawar Hussain, S.I. Were recorded as Court Witnesses, during the trial.
Ghulam Sarwar complainant (P.W.3) and Muhammad Asghar (P.W.4) are the witnesses of ocular account of the occurrence.
' The medical evidence was furnished by Dr. Ghulam Abbas Nasir (P.W.1).
' Bahu Khan, S.I. (CW-1) and Munawar Hussain (CW-2) were the Investigating Officers of this case.
' Imtiaz Ahmad Patwari (P.W.2), Ghulam Fareed (P.W.5), Zaghum Abbas No. 448/MHC (P.W.6) and Muhammad Mansha No.580/C (P.W.7) are the formal witnesses.
' The prosecution produced documentary evidence in the shape of copy of private complaint and post mortem report of the deceased, both exhibited as Exh.PA, pictorial diagram Exh. PA/1, scaled site plan of the place of occurrence in triplicate Exh.PB, Exh. PB/1 and Exh. PB/2, copy of complaint Exh. PC, memo of possession of blood stained earth Exh.PE, memo of possession of last worn clothes of the deceased Exh.PF, rough site plan of the place of occurrence Exh.CW/2 and closed its evidence.
7. The statements of the appellants and their co-accused under section 342, Cr.P.C. Were recorded.
They refuted the allegations levelled against them and professed their innocence. While answering to a question that "Why this case against you and why the P.Ws. Have deposed against you" the appellants replied as under:- ' Muhammad Ashraf "I am innocent. I have been falsely involved in this case due to previous enmity and on the basis of suspicion. The P. Ws. Are inimical towards me and have deposed against me falsely.
' The appellant Muhammad Shafqat while answering to the above-mentioned question gave the same answer as given by Muhammad Ashraf appellant. Neither the appellants opted to make statements under section 340(2), Cr.P.C. Nor they produced any evidence in their defence.
' The learned trial Court vide its judgment dated 10-3-2008, while acquitting co-accused Saif Ullah and Muhammad Zaman, found Muhammad Ashraf and Muhammad Shafqat appellants guilty and convicted and sentenced them as mentioned and detailed above.
8. Learned counsel for Muhammad Ashraf appellant, in support of this appeal, contends that the appellant has falsely been implicated in this case; that both the eye-witnesses of ocular account are chance witnesses and they have not been able to give any valid reason for their presence at the spot and moreover the matter was not reported to the police at the time mentioned in the F.I.R., which is clear from the fact that the doctor (P.W.1) who conducted the post-mortem examination on the dead body of the deceased had admitted in his cross-examination that the dead body was brought in the mortuary at 11-00 p.m. Which clearly negates the evidence of the witnesses of ocular account because had they been present at the spot, the dead body would have reached to the hospital much earlier than the time mentioned above; that in the F.I.R. And private complaint it was the case of the complainant that firstly fire shots were made by Muhammad Ashraf appellant which hit the deceased at his chest, abdomen and different parts of his body and thereafter Saif and Abdul Sattar accused along with two unknown persons also fired at the deceased which hit him on his back, left flank, left shoulder and back and the same stance was taken in the private complaint which was instituted on 28-7-2006 but while appearing before the court, the complainant changed his version qua the injury caused by the co-accused of the appellant and stated that Muhammad Shafqat appellant fired with his respective weapon which hit Ahmad Khan deceased on his belly, then Sattar accused fired with Kalashnikov which hit on his chest; then Saif accused fired with his respective weapon which hit Ahmad Khan on his chest and then Zaman accused fired with his weapon which hit on the belly of Ahmad Khan deceased and thus, the version was changed/improved by the complainant in order to bring his evidence in line with the medical evidence; that the complainant was duly confronted with his previous statements, i.e. Contents of the F.I.R. And his cursory statement recorded after filing of the private complaint and dishonest improvements in his statement were brought on the record; that in the F.I.R. Only three accused persons were mentioned by name, i.e. Muhammad Ashraf, Muhammad Shafqat (appellants) and Abdul Sattar (since PO) but the private complaint was filed against five persons namely Muhammad Ashraf, Muhammad Shafqat (appellants), Saif Ullah, Muhammad Zaman accused (since acquitted) and Abdul Sattar (since PO) and in his cross-examination, the complainant has stated that in his Fard Bayan Exh. DA he mentioned the name of Saif Ullah and Muhammad Zaman, he was confronted with his Fard Bayan where it was not so recorded. He further admitted that the above mentioned accused persons are residents of his village and known to him (complainant) but even then they were not named by him in the F.I.R. Which clearly established mala fide of the complainant; that the motive alleged in the, F.I.R. And in the private complaint was previous litigation between the appellant and the deceased, however, while appearing before the learned trial court the complainant alleged the motive to the effect that the deceased divorced the sister of Muhammad Ashraf appellant and that Muhammad Ashraf appellant was earlier injured by them but in cross-examination he admitted that sister of Muhammad Ashraf appellant was divorced 20 years back and thereafter the deceased contracted another marriage with Mst. Riaz Bibi who too was dead and in this situation the motive appears to be highly improbable; that the complainant has admitted that his father was not the accused in the earlier hurt case, therefore, there was no reason or occasion for Muhammad Ashraf appellant to kill the deceased; that even otherwise the question regarding the marriage of the sister of the appellant and her divorce by the deceased was not put to the appellant while recording his statement under section 342, Cr.P.C. And as such the evidence which has not been put to the appellant cannot be used against him; that admittedly the complainant and Muhammad Asghar (P.W.4) are interested and inimical witnesses because the complainant has admitted that Muhammad Ashraf appellant filed an application against them because they filled the pond of village and took its possession and the Revenue Authorities declared them as illegal occupants and passed an order of their eviction; that during the course of investigation the appellant was found innocent and nothing was recovered from his possession or at his instance and as such the ocular account furnished by Ghulam Sarwar complainant (P.W.3) and Muhammad Asghar (P.W.4) is doubtful, as they are chance, interested and inimical witnesses, therefore, corroboration of such witnesses is sine qua non which is very much lacking in this case; that this appeal may be accepted and the appellant may be acquitted from the charge.
' Insofar as Muhammad Shafqat appellant is concerned, learned counsel contends that he was convicted by the learned trial court, his sentence was suspended by this Court vide order dated 31- 3-2009 and he was ordered to be released on bail and thereafter he did not appear despite issuance, of notice and warrants. Notices to the sureties were also issued and ultimately they deposited the amount of sureties. It is further submitted that since the appellant has filed his appeal and thereafter he became absent, therefore, this appeal may be decided on merits. Placed reliance on the case reported as Mushtaq and 3 others v. The State (1989 PCr.LJ 2336). While adopting the arguments of learned counsel for Muhammad Ashraf appellant, learned counsel adds that Muhammad Shafqat appellant has falsely been implicated in this case being real son of Muhammad Ashraf appellant; that nothing was recovered from his possession during the course of investigation and he was declared innocent by the police; that the complainant has changed his version qua the role of this appellant during the occurrence; that the prosecution miserably failed to prove its case against the appellants beyond the shadow of doubt, thus, this appeal be accepted and the appellant may be acquitted from the charges.
9. Conversely, learned Deputy Prosecutor-General, for the State, assisted by learned counsel for the complainant opposes this appeal on the grounds that the F.I.R. Was promptly lodged, as occurrence in this case took place on 4-2-2006 at 3-00 p.m. And the matter was reported to the police at 4-30 p.m., whereas, the distance between the place of occurrence and the police station is seven and a half miles; that the F.I.R. Was also promptly lodged on the same day at 5-20 p.m.
Which rules out the possibilities of deliberation, consultation and also established the presence of the complainant and other eye-witnesses at the spot; that the delay in conducting the post- mortem examination was not on the part of the complainant as the occurrence took place in a village and sufficient time was required to transport the dead body from the place of occurrence to the mortuary; that both the eye-witnesses are though related to the deceased, but they are residents of the same village where this occurrence took place, therefore, their presence at the spot cannot be considered as unnatural or improbable and they have sufficiently explained their presence at the spot by stating that they accompanied their father in order to see one Ch. Nawaz who was sick and when they were coming back to their village and reached at the spot, the appellants and their co-accused came out from the trees from the western side and all the accused persons encircled Ahmad Khan and committed the occurrence; that opinion of the police is inadmissible in evidence; that the prosecution evidence remained consistent despite lengthy cross-examination; that the ocular account gets full support from the medical evidence and the complainant did not change his version rather clarified the same; that the motive as alleged by the prosecution has been proved in this case; that non-recovery of weapon of offence is not material as the police in connivance with appellants declared them innocent that the sentence of death was rightly awarded to Muhammad Ashraf appellant and the same may be maintained, appeal of the appellant may be dismissed and Murder Reference be answered in the affirmative. So far as PSLA No. 17 of 2008 is concerned it has been argued by learned counsel for the complainant that Saif Ullah and Muhammad Zaman accused actively participated in the occurrence, specific injuries were attributed to them and as Mich they have wrongly been acquitted by the learned trial court, therefore, they be punished in accordance with law. Insofar as Criminal Revision No. 173 of 2008 is concerned, it is argued on behalf of the complainant that Muhammad Shafqat appellant also caused injuries to the deceased and the role assigned to him has been proved through oral, as well as, medical evidence, therefore, the appellant Muhammad Shafqat also deserves normal penalty of death; that the reasons assigned by the learned trial court while awarding sentence of life imprisonment against the said appellant are against the record, therefore, Muhammad Shafqat appellant be also awarded the sentence of death.
10. We have heard the arguments of learned counsel for the parties and have also gone through the evidence available on the record with their able assistance.
11. The first and foremost question for determination before this Court is that whether the appeal filed by Muhammad Shafqat appellant can be decided by this Court in his absence because the said appellant after suspension of his sentence and release on bail by this Court 'vide order dated 31-3-2009 passed in Criminal Miscellaneous No.1 of 2008 has absented himself from this Court. The notices to his sureties were issued and his bail bonds were forfeited. Both of his sureties have deposited the amount of bail bonds to the tune of Rs.2,00,000 each. In the present case an appeal was filed by Muhammad Shafqat appellant against his conviction and sentence of imprisonment for life, through his counsel. A notice was issued to Muhammad Shafqat appellant and in response to said notice Mr. Shahzad Saleem Warraich, Advocate has entered appearance before this Court.
We have inquired from the said learned counsel as to whether the authority given by Muhammad Shafqat appellant to him still subsists or the same has been revoked by the appellant. Mr. Shahzad Saleem Warraich, Advocate submits that his association with the case of Muhammad Shafqat appellant as his duly appointed counsel has not been repudiated by the appellant. We have gone through the provisions of sections 422 and 423, Cr.P.C. And have come to this conclusion that a notice of hearing of appeal has to be given to the appellant or his counsel and where the records have been sent for, after hearing the appellant or his learned counsel if he appears, the court may dismiss the appeal or accept it or pass such other order as may be necessary. The only legal obligation is to give a notice of hearing to the appellant or his learned counsel and to give him an opportunity of being heard. However, if the appellant or learned counsel for the appellant does not appear before the appellate court even then the appeal can competently be decided after service of notice for hearing to the appellant or his learned counsel, though the appellate court would have been regretfully deprived of the assistance of the appellant or his learned counsel. A reference to section 366(2), Cr.P.C. Will show that the personal attendance of the accused is necessary for the pronouncement of the judgment in criminal trials except where his personal attendance during the trial has been dispensed with or when the judgment is of acquittal or is of fine only but under subsection (3) of the same section a judgment delivered by a court is not to be deemed invalid merely because of the reason that any party or his pleader was absent on the date of pronouncement of the judgment or for any defect in the service of notice on the parties regarding the date and place of pronouncement of the judgment. In subsection (4) of this section the application of provisions under section 537, Cr.P.C. Have been reaffirmed with the result that the pronouncement of the judgment in a criminal trial in the absence of any party is not at all an illegality nor the same will render any such judgment as invalid. We have also noted that there is no such provision in the Code of Criminal Procedure such as that contained in section 366, Cr.P.C.
For the announcement of judgment in criminal appeal meaning thereby, that the intention of the legislature was that the judgment in appeal can be pronounced in the absence of the appellant.
Similarly there is no legal requirement at all that a party is to be present or is available or is within the reach of the court at the time of decision of his appeal. We are of the considered view that it is duty of the court to do justice after appraisal of evidence and appellant cannot be punished simply for the reason that he had absconded after filing his appeal before the appellate court. A similar proposition came under discussion before the Hon'ble Supreme Court of Pakistan in the case of Haq Nawaz and others v. The State and others (2000 SCM R 785) wherein at page No.811 it was observed as under:- "We now take up Criminal Appeal No. 176 of 1999 filed by the State challenging the acquittal of the respondents. The learned State Counsel very vehemently contended that the acquittal of the respondents in the above case was on wrong premises as sufficient evidence was led by the prosecution to sustain their conviction. The learned State Counsel also very vehemently contended that in so far respondent Zakiullah is concerned, he was fugitive from law and therefore, his appeal should have been dismissed by the High Court at the hearing. Before considering the contention of the learned State Counsel on merits, we would like to dispose of the contention that the case of the appellant Zakiullah could not be decided by the High Court as he was fugitive from law. This argument was fully considered by the learned Judges of the High Court but repelled. The learned State Counsel does not dispute that the time the appeal was filed before the High Court, he was in prison. It is subsequent to the filing of the appeal that he was stated to have absconded from the jail custody. In our view, in such a circumstance, it was discretionary with the High Court either to defer consideration of the appeal of Zakiullah or to hear the same and decide on merits. Since Zakiullah was not absconder and fugitive from law at the time he lodged his appeal and his subsequent act of absconding from jail was an independent act punishable under the law separately, no exception could be taken if the High Court, in such circumstances, decided to deal with his case on merits. We, therefore, find no substance in the contention of the learned State Counsel that the case of appellant Zakiullah could not be heard on merits."
' In another case titled as Muhammad Aslam and 5 others v. The State (1972 SCM R 194) the Hon'ble Supreme Court of Pakistan while giving the benefit of doubt to the appellants of said case also acquitted the absconding appellant who after filing his appeal became an absconder and remained fugitive from law till the decision of his appeal. The concluding Paragraph of the said judgment at page No. 201 reads as under:-- "Having regard to these broad features of the case the appellants were entitled to the benefit of doubt which should have been given to them. We accordingly allow the appeal, set aside the conviction and sentences of all the appellants including the absconding appellant Muhammad Aslam, and acquit them of all the charges, and direct that they shall be set at liberty forthwith if not wanted in connection with any other matter.
' We may observe here that although the appellant Muhammad Aslam has absconded during the pendency of the present appeal and has remained absconding up till now, the benefit of our judgment should be given to him also in order to do complete justice in the case. We, therefore, do not find it necessary to postpone the hearing of the case of Muhammad Aslam until his presence before the Court."
' We may also refer here the case of Mushtaq and 3 others v. The State (1989 PCr.LJ 2336) wherein at page No. 2341 this Court has observed as under:- '.............................. He frankly conceded that Noor Hassan had absconded after the close of the trial, but before the announcement of the judgment and so he had no right of hearing. But in any case, as per Hayat Bakhsh's case 1981 SCM R 1 it was the duty of the Court to sift the evidence and to do justice in his case as well, if after perusal and appreciation of the evidence his case called for interference, and simply for the reason that he had absconded he was not to be condemned. We are inclined to agree with him in this respect"
In the light of above discussion, we are of the view that the appeal filed by Muhammad Shafqat appellant who has absconded after filing his appeal can competently be decided on merits by this Court even in his absence.
12. The gist of the prosecution case as set forth in the private complaint has already been given in Para No. 3 above, therefore, there is no need to repeat the same.
13. It is true that the appellants were declared innocent by the Investigating Officer Bahu Khan, S.I.
(CW-1) who has conceded during his cross-examination that the stand of the appellants was found to be correct during his investigation and due to that reason he declared them innocent but it is by now well settled law that opinion of the police qua innocence or otherwise of the accused is inadmissible in evidence, D therefore, the above mentioned appellants cannot be acquitted merely on the ground that they were declared innocent by the police. A reference in this respect may be made to the case of Muhammad Ahmad (Mahmood Ahmed) v. The State (2010 SCM R 660) wherein at page 676 the Hon'ble Supreme Court was pleased to observe as under:- "It may be mentioned here, for the benefit and guidance of all concerned, that determination of guilt or innocence of the accused persons was the exclusive domain of only the Courts of law established for the purpose and the said sovereign power of the Courts could never be permitted to be exercised by the employees of the police department or by anyone else for that matter. If the tendency of allowing such-like impressions of the Investigating Officer to creep into the evidence was not curbed them the same could lead to disastrous consequences. If an Investigating Officer was of the opinion that such an accused person was innocent then why could not, on the same principle, another accused person be hanged to death only because the Investigating Officer had opined about his guilt"
14. Now coming to the merits of this case, we have noted that the ocular account of the prosecution has been furnished by Ghulam Sarwar complainant (P.W.3) and Muhammad Ashgar (P.W.4). The complainant Ghulam Sarwar (P.W.3) has admitted during his cross-examination that he (complainant) and Muhammad Asghar (P.W.4) had filled the pond of their village and took its possession, whereupon, Muhammad Ashraf appellant moved an application against him and Muhammad Asghar (P.W.4) to the revenue authorities. He further conceded that the revenue authorities declared them (P.Ws.) illegal occupants and passed an order of their eviction. It is, therefore, established that the aforementioned eyewitnesses were inimical towards Muhammad Ashraf appellant, whereas, Muhammad Shafqat appellant is son of Muhammad Ashraf appellant.
The evidence of inimical eye-witness can be relied upon, provided the same is confidence inspiring and is corroborated by some independent evidence. We will now discuss the evidence of aforementioned eyewitnesses keeping in view the said principle. The occurrence in this case took place on 4-2-2006 at 3-00 p.m. According to the prosecution case the matter was reported to the police by the complainant Ghulam Sarwar (P.W.3) through his Fard Bayan on the same day, i.e. 4- 2-2006 at 4-30 p.m. The formal F.I.R. Was also recorded on the same day at 5-20 p.m. -but we have noted that the post-mortem examination on the deadbody of Ahmad Khan deceased was conducted on 4-2-2006 at 11-10 p.m., i.e. With the delay of eight hours and ten minutes, from the occurrence. The aforementioned delay in conducting the post-mortem examination cannot be attributed to Dr.Ghulam Abbas Nasir (P.W.1) because he has stated during his cross-examination that die deadbody was brought to the hospital at 11-00 p.m. On 4-2-2006. He further stated that he incorporated the aforementioned fact in the relevant register and conducting the post-mortem examination at about 11-10 p.m. No F plausible explanation has been brought on the record for the delay of more than eight hours in bringing the dead body to the hospital and in conducting the postmortem examination on the dead body of Ahmad Khan deceased. The said delay is suggestive of the fact that the F.I.R. Was not recorded at the time mentioned therein and the time was consumed in procuring attendance of eye-witnesses and preparation of police papers necessary for post-mortem examination. We may refer here the case of Irshad Ahmad v. The State (2011 SCM R 1190) wherein it was observed that the post-mortem examination of the dead body had been conducted with a noticeable delay and such delay is generally suggestive of a real possibility that time had been consumed by the police in procuring and planting eye-witnesses and in cooking up a story for the prosecution before preparing police papers necessary for getting a postmortem examination of the deadbody conducted.
' Similar view was taken by the Hon'ble Supreme Court of Pakistan in the case of Muhammad Ashraf v. The State (2012 SCM R 419). Similarly, in the case of Khalid alias Khalidi and 2 Others v. The State (2012 SCM R 327), the Hon'ble Supreme Court of Pakistan considered the delay of 13 hours from the occurrence in conducting the post mortem examination on the deadbody of deceased, to be an adverse fact against the prosecution case and it was held that it shows that the F.I.R. Was not lodged at the given time.
15. According to the story of the prosecution, on the fateful day the complainant Ghulam Sarwar (P.W.3) and Muhammad Asghar (P.W.4) along with Ahmad Khan (deceased) and Nisar Ahmad (given up P.W.) were coming back towards their village after inquiring the health of one Chaudhry Muhammad Nawaz son of Fateh Dad r/o of village Charanwala and when they reached near the Dera of one Mehdi Khan son of Aman Din, the above mentioned eye-witnesses went to the abovesaid Dera in order to see the cow of Mehdi Khan, whereas, Ahmad Khan deceased kept on walking on the katcha path and when he (deceased) reached near the trees on the road, the appellants along with their co-accused emerged on the spot and committed the murder of Ahmad Khan (deceased). Although it was claimed that at the time of occurrence the above mentioned eye-witnesses, when reached near the Dera of one Mehdi Khan, they went to the said Dera in order to see his cow but we have noted that the abovesaid Dera has not been shown in the site plan Exh. PB. Neither the aforementioned Mehdi Khan has been produced by the prosecution in the Witness box nor Ch. Muhammad Nawaz son of Fatal Dad r/o of village Charanwala who had been allegedly visited by the aforementioned eye-witnesses on the day of occurrence, has been produced before the learned trial court, therefore, the reason given by the aforementioned witnesses for their presence at the spot- has not been established in this case, and as such, the above mentioned witnesses are chance witnesses.
16. The medical evidence of the prosecution was furnished by Dr. Ghulam Abbas Nasir (P.W.1). He, on 4-2-2006 at about 11.10 p.m., conducted the postmortem examination on the dead body of Ahmad Khan (deceased) and found twelve firearm wounds on his body including three exit wounds. It was the case of the prosecution in the F.I.R. That the fire shot made by Muhammad Ashraf appellant landed on the chest, abdomen and lower part of abdomen of Ahmad Khan (deceased), whereas, the fire shots jointly made by Muhammad Shafqat appellant, Abdul Sattar accused (since PO) and two unknown accused persons (later on nominated as Saif Ullah and Muhammad Zaman accused) landed on the waist, left thigh, left flank, left shoulder and on the back of Ahmad Khan (deceased). The eye-witnesses namely Ghulam Sarwar (P.W.3) and Muhammad Asghar (P.W.4) while appearing before the learned trial court have changed the prosecution story as set forth in the F.I.R. Qua the role attributed to the appellants. Ghulam Sarwar complainant (P.W.3) has stated in the following terms qua the role of appellants while making his statement before the learned trial court:-- "First of all, Ashraf accused fired with his respective Kalashnikov which hit on his chest and belly.
Then Shafqat accused fired with his respective weapon which hit Ahmad Khan on his belly, then Sattar accused fired with Kalashnikov which hit on his chest. Then Saif accused fired with his respective weapon which hit Ahmad Khan on his chest. Then Zaman accused fired with his weapon which hit on the belay of Ahmad Khan. My father Ahmad fell down. Except Ashraf all the other four accused persons fired at my father Ahmad Khan. My father Ahmad Khan succumbed to the injuries at the spot.
' The complainant Ghulam Sarwar (P.W.3) was confronted with his previous statement Exh. DA recorded by the police and the improvements made by him were duly brought on the record:-- "I stated in my Fard Biyan Exh. DA that Shafqat accused made a fire with the Kalashnikov which landed on the chest and the belly of my father deceased. Confronted with Exh. DA where it is not so recorded. I stated in Exh. PA and in my cursory statement recorded in the court that Shafqat accused made a fire with the Kalashnikov which landed on the belly of my father deceased.
Confronted with Exh. PA where belly is not mentioned. Stated in my Fard Biyan Exh DA that Abdul Sattar accused made a fire shot with his respective weapon which landed on the chest of my father deceased. Confronted with Exh. DA where chest is not mentioned. I stated in my Fard Biyan Exh. DA that Muhammad Ashraf made a burst of Kalashnikov which hit on the belly of my father deceased who fell down whereas the remaining accused made indiscriminate firing on the person of my father deceased which hit on different part of his body. 1 stated in my Fard Biyan Exh. DA that my father after receiving the first fire injury fell down on face down on the ground. I stated in my Fard Biyan Exh. DA that Saif Ullah and Muhammad Zaman made a fire shot on the person of my father deceased which hit him on different parts of body. Confronted with Exh. DA where it is so recorded".
Similarly the statement made by Muhammad Asghar (P.W.4) qua the role of the appellant is in conflict with the story narrated in the F.I.R. In the case of "Akhtar All and others v. The State" (2008 SCM R 6) while discussing the evidence of a witness who made dishonest improvements in his statement the Hon'ble Supreme Court of Pakistan observed 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."
' Similar view was taken by the. Hon'ble Supreme Court of Pakistan in the case of "Muhammad Rafique and others v. The State and others" (2010 SCM R 385) wherein it was held that improvements made by a witness on material aspects of the case is not worthy of reliance. It is, therefore, not safe to rely upon the evidence of the above mentioned eye-witnesses who made dishonest improvements in their statements before the court in order to strengthen the prosecution case.
The mala fide of the complainant has also been established from the fact that he implicated Saif Ullah and Muhammad Zaman co-accused in this case in place of unknown accused persons. The said co-accused were not named in the F.I.R. The complainant admitted during his cross- examination that Saif Ullah and Muhammad Zaman, both were residents of his village and were known to him prior to the occurrence being his relatives. It does not appeal to common sense that if the afore mentioned eye-witnesses were present at the time of occurrence then why did they not nominate Saif Ullah and Muhammad Zaman in the F.I.R. Who were residents of their village and were known to them prior to the occurrence being their relatives.
17. The motive behind the occurrence as set forth in the F.I.R., as well as, in the private complaint was the previous litigation between the deceased and the accused persons. No detail of said previous litigation was mentioned in the F.I.R., as well as, in the private complaint Exh. PA. The complainant Ghulam Sarwar (P.W.3), however, while appearing before the learned trial court has stated that the motive behind the occurrence was that his father Ahmad Khan (deceased) had divorced the sister of Muhammad Ashraf appellant and also that Muhammad Ashraf appellant was injured by them (complainant party) and due to this grudge the accused persons committed the murder of Ahmad Khan deceased. We have noted that the story of divorce to the sister of Muhammad Ashraf appellant was not mentioned in the F.I.R. Or in the private complaint and the same was introduced for the first time by the complainant at the time of making his statement before the learned trial court. The complainant Ghulam Sarwar (P.W.3) has stated during his cross- examination that his father Ahmad Khan contracted second marriage with the sister of Muhammad Ashraf appellant. He further stated that his second mother/step mother had been divorced by his father Ahmad Khan (deceased) 20 years back. It was also brought on the record during his cross-examination that Ahmad Khan deceased had contracted four marriages in his life time. It does not appeal to common sense that Ahmad Khan deceased would be murdered by the appellants due to the divorce given by the deceased to the sister of Muhammad Ashraf appellant after the lapse of more than 20 years from the said divorce. Insofar as second motive alleged by the prosecution is concerned, we have noted that it was case of the prosecution that Muhammad Ashraf appellant was injured by the complainant party and due to this grudge the accused persons committed the murder of Ahmad Khan deceased. It is noteworthy that Ghulam Sarwar complainant (P.W.3) has admitted during his cross-examination that Ahmad Khan deceased was not the accused of the hurt case of Muhammad Ashraf appellant. He further conceded that Muhammad Asghar (P.W.4) was the accused in the said hurt case. It is not understandable that if Muhammad Asghar (P.W.4) was the accused in the hurt case of Muhammad Ashraf appellant and he was also present at the time of occurrence then why he was spared by the appellants and in his place Ahmad Khan deceased was murdered who was not even the accused in the above said hurt case. We are, therefore, of the view that the motive as alleged by the prosecution has not been I proved in this case.
18. Although it was alleged in the F.I.R. That both the appellants were armed with Kalashnikoves at the time of occurrence and they along with their co-accused committed the murder of Ahmad Khan deceased with the help of said weapons but no weapon of offence was recovered from the possession of the appellants during the investigation of instant case, thus, there is no corroboration of the prosecution story from the recovery of any weapon of offence from the possession of the appellants.
19. We have considered all the aspects of this case and have come to this irresistible conclusion that the prosecution could not prove its case K against the appellants beyond the shadow of doubt. It is by now well settled law that if there is a single circumstance which creates doubt L regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances which have created doubt about the prosecution story. In `Tariq Pervez v. The State' (1995 SCM R 1345), the Hon'ble Supreme Court of Pakistan, at page 1347, was pleased to observe as under:-- 5......... The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right.'
' The Hon'ble Supreme Court of Pakistan while reiterating the same principle in the case of 'Muhammad Akram v. The State' (2009 SCM R 230), at page 236, observed as under:--
13. 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."
20. In the light of above discussion, we are of the view that the prosecution has failed to prove its case against the appellants beyond the shadow of doubt, therefore, we accept Criminal Appeal No.290 of 2008 filed by Muhammad Ashraf and Muhammad Shafqat appellants, set aside their convictions and sentences recorded by the learned Additional Sessions Judge, Mandi Bahauddin vide judgment dated 10-3-2008 and acquit them of the charges by extending them the benefit of doubt. Muhammad Ashraf appellant is in custody, he be released forthwith if not required in any other case.
' Murder Reference No. 34 of 2008 is answered in the NEGATIVE and the sentence of death of Muhammad Ashraf is NOT CONFIRMED.
21. Insofar as Petition for Special Leave to Appeal No. 17 of 2008 filed against the acquittal of Saif Ullah and Muhammad Zaman is concerned, we have noted that the aforementioned respondents were not named in the F.I.R. As mentioned earlier, the complainant Ghulam Sarwar (P.W.3) has admitted during his cross-examination that both, Saif Ullah and Muhammad Zaman were residents of his village and known to him prior to the occurrence being his relatives. It does not appeal to common sense that if the said respondents were known to the complainant being his relatives then why they were not named in the F.I.R.. Even otherwise we have already discarded the prosecution evidence while deciding Criminal Appeal No. 290 of 2008, therefore, the instant Petition for Special Leave to Appeal is, hereby, dismissed in limine.
22. For the foregoing reasons, Criminal Revision No.173 of 2008 filed by the complainant seeking enhancement in the sentence of Muhammad Shafqat appellant also stands dismissed.