KHALID MAHMOOD MALIK, J. By way of this consolidated judgment we would like to decide Criminal Appeal No.114 of 2009(Muhammad Ayub Vs. The State etc.), and Criminal Appeal No.120 of 2009 (Rajab Ali Vs. The Sate etc.) as both appeals have emanated out of same judgment dated 27.03.2009, passed by learned Addl: Sessions Judge Liaquatpur in case F.I.R No.80/2005, dated 25.04.2005, under Sections 302/34 PPC, registered at Police Station Taranda Muhammad Panah, District Rahim Yar Khan.
2. Through criminal Appeal No.114 of 2009 Muhammad Ayub, appellant has assailed judgment dated 4/, 27.03.2009, passed by learned Addl: Sessions Judge Liaquatpur, whereby he convicted Muhammad Ayub, appellant under Section 302(b) PPC and sentenced him to undergo R.I for life as Ta'zir alongwith compensation of Rs.1,00,000/- payable to the legal heirs of the deceased. Failing which, appellant shall further undergo S.I for six months. He will be given the benefit of Section 382- B of Cr.P.C.
3. Through criminal Appeal No.120 of 2009, Rajab Ali (complainant) has also called in question above-said judgment, whereby respondents Muhammad Afzal, Ghulam Madni, Nasrullah and Muhammad Abbas were acquitted of the charge.
4. The facts of the case as narrated by Rajab Ali, complainant (PW-9) in his statement before the trial court and same statement is hereby reproduced for narration of the facts:- "About one year and 10 1/2 months back son of Abdul Rasheed came to Khangarh Doma to purchase some household articles, where he exchanged hot words with my son Madni aged about 8-10 years and the matter was patched up. Son of Abdul Rasheed went to his house and made a complaint against my son to his maternal uncle(Mamoon). Ayub and Abbas accused persons kept grudge against my son due to hot words exchanged between my son and son of Abdul Rasheed.
Two days after the first incidence I alongwith Barkat Ali, Muhammad Nawaz and Fida Hussain came to Bait Blouch where I own agricultural land. At about 1.00 p.m. We were collecting and tying bundles of Chaff. Ayub accused armed with rifle, Afzal and Madni accused both armed with rifles.
Abbas accused armed with gun. Nasrullah accused armed with pistol and Kausar Abbas accused armed with pistol, and Shabbir accused armed with rifle came there. Abbas accused raised a lalkara and asked his co-accused to teach lesson to Barkat Ali for quarrelling with his brother.
Ayub, Afzal and Ghulam Madni accused fired at Barkat Ali with their respective rifles, which hit on his legs. Other accused persons present in Court also fired at Barkat Ali. I attempted to go near to Barkat Ali but accused persons threatened me with dire consequences. Nasrullah and Kausar Abbas accused caught hold of me. All the accused persons fled away with their respective weapons, leaving me. I alongwith Fida Hussain and Muhammad Nawaz PWs engaged a wagon for shifting the injured Barkat Ali to Ali Pur but he succumbed to the injuries in the way. I alongwith the dead-body appeared before the police at P.S Tranda Muhammad Panah. My statement was reduced into writing Ex:PH, which was read over to me and I thumb marked the same in token of its correctness. All the accused persons committed murder of my brother due to quarrel of children.
5. After completion of investigation, report under Section 173 of Cr.P.0 was submitted and learned Trial Court, after observing legal formalities on 22.12.2005, framed the charge against the appellant and other co-accused(since acquitted) to which they pleaded not guilty and claimed trial.
6. In order to prove its case, prosecution examined Muhammad Arif 119/C(PW-1), Dr. Muhammad Wajid (PW-2), Barkat Ali Patwari Halqa (PW-3), Rustam Ali A.S.I. (PW-4), Gulzar Ahmad(PW-5), Maithey Khan (PW-6), Laal Hussain (PW-7), Ashiq Hussain 868/C-II(PW-8), Rajab Ali, complainant(PW-9), Fida Hussain (PW-10), Irfan Akbar Khan (PW-11), Jamshaid Ali Shah Inspector/SHO (PW-12) and Munir Ahmad S.I (PW-13). In documentary evidence, learned DDPP for state tendered the report of Forensic Science Laboratory Punjab Lahore (Ex:PO), report of Chemical Examiner (Ex:PQ), report of Serologist (Ex:PR) and closed prosecution evidence. Thereafter the appellant Muhammad Ayub and respondents Muhammad Afzal, Ghulam Madni, Nasrullah and Abbas were examined under Section 342 Cr.P.0 and the entire evidence produced by the prosecution has put to them in shape of questions, which they termed as incorrect and claimed their innocence. The appellant and aforesaid respondents, however, did not appear in rebuttal as their own witnesses, as required under Section 340(2) Cr.P.C. In reply to a question that why the prosecution witnesses have deposed against him, Muhammad Ayub, appellant replied as under:- "All the prosecution witnesses are inimical towards me and are inter-se related so they have deposed falsely against me.
While in reply to question that why this case against him, Muhammad Ayub, appellant replied as under:- "It is an unseen occurrence. It is established on the record that neither the complainant nor any eye-witness was present at the time of occurrence. Concerned PWs had not seen the occurrence with their own eyes. I have been falsely involved in this case due to previous enmity of murder cases between the parties. During investigation, my co-accused namely Muhammad Afzal, Ghulam Madni, Nasrullah and Kausar Abbas have already been declared innocent making the whole prosecution story as very highly doubtful. During investigation, it was confirmed that infact the accused Ghulam Shabbir since P.O is the main accused, who caused the murder of the deceased."
In reply to question that why the PWs deposed against them and why this case against them, respondents Abbas, Muhammad Afzal, Nasrullah and Ghulam Madni replied in the same line as replied by Muhammad Ayub, appellant. After conclusion of trial, learned trial Court convicted the accused/appellant Muhammad Ayub as mentioned above and acquitted the respondents.
7. Learned counsel for appellant has argued that prosecution has miserably failed to prove its case beyond any shadow of doubt as there are material contradictions in the statement of eye- witnesses; that learned trial Court has convicted the appellant and acquitted the respondents Abbas, Muhammad Afzal, Nasrullah and Ghulam Madni on the same strength of evidence and learned trial Court has disbelieved to the extent of one set of accused person by holding that PW-9 and PW-10 eye-witnesses of the occurrence have changed their version and the statements of PW-9 and PW-10 are contradictory with each other and with the statement of Munir Ahmad S.I/I.O (PW-13). In-spite of this fact, learned trial Court had awarded sentence of life imprisonment, which is not sustainable under the law. Even the alleged recovery of weapon has no value as the alleged empty found from the place of occurrence was sent with the alleged recovered weapon simultaneously with considerable delay. Thus the case of prosecution is not free of doubt and benefit of doubt must be extended in favour of the accused. Lastly he prayed that appellant be acquitted from the charge.
8. Conversely, learned D.P.G assisted by learned counsel for complainant vehemently opposed the appeal by contending that prosecution has proved its case with cogent evidence. Learned counsel for complainant further pleaded that acquitted of the respondents Abbas, Muhammad Afzal, Nasrullah and Ghulam Madni from the charge has caused great miscarriage of justice as the prosecution has proved its case through cogent and reliable evidence and learned trial Court has not correctly appreciated the evidence and disbelieved the statement to the extent of acquitted accused. Therefore, respondents were unjustifiably been acquitted.
9. The case of prosecution has mainly based on ocular account which has been furnished by Rajab Ali, complainant (PW-9) and eye-witness Fida Hussain (PW-10), recovery of weapon i.e. Rifle 44 bore and medical evidence.
10. After survey of record, evidence and impugned judgment, with the assistance of learned counsel for parties, we observed that learned trial Court has not appreciated the evidence and relevant law on the subject in its true perspective. The case of prosecution is not free of doubts. In the F.I.R, the role attributed to the appellant/convict and his co-accused Muhammad Afzal and Ghulam Madni was that they made the firing which hit on the legs of the deceased Barkat Ali.
Almost the same role has been deposed by Rajab Ali, complainant (PW-9) and Fida Hussain (PW- 10), eye-witness of the occurrence. PWs had not specified any specific injury to any of the accused persons as described in the F.I.R. In para No.18, while analyzing the prosecution evidence, the learned trial Court in its judgment observed as under:- "The complainant PW-9 has been found to have been changing his version during every step of his evidence. His statement is full of contradictions and he made dishonest improvements about the accused causing the injuries. The statements of PW-9 and PW10 are contradicting each other and both these witnesses have been contradicted by the I.0 Munir Ahmad PW-13. Only favourable facts going in his favour were accepted by PW-9 as correct. The major portion of the evidence of the complainant PW-9 is therefore found not true. Only the portion of his evidence has been found by this Court as correct."
Similarly in para No.19 of its judgment, the learned trial Court observed as under:- "It has been found that the complainant PW9 made dishonest improvements to the extent of the involvement of the accused Muhammad Afzal, Nasrullah and Ghulam Madni, who have been declared innocent in 451-- the investigation. It is in the F.I.R that the bullets fired by the accused Muhammad Ayub, Muhammad Afzal and Ghulam Madni hit the deceased Barkat Ali on his legs.
One unknown accused has also been named in the F.I.R causing firing on the victim. In this respect, the complainant PW9 Rajab Ali is proved to have been a false witness. During the investigation, he firstly named the unknown accused making firing on the deceased as Yar Muhammad brother of Muhammad Ayub accused. In the witness box he denied this fact but when confronted with his statement recorded by the police Ex:D.C, it proved on record that earlier he clearly named Yar Muhammad accused also."
In the same para of this judgment, the learned trial Court also observed as under:- "The complainant PW-9 Rajab Ali admitted that he had submitted this application to the I.0 on 01.06.2005. He admitted in his statement that in this application, he mentioned that Shabbir Ahmad is also his accused but in next line of his statement he denied that the accused Shabbir had also made firing on the deceased."
Surprisingly, learned trial Court had not believed the testimonies of both the aforesaid eye- witnesses and acquitted the co-accused of appellant/respondents and on the same testimonies, which do not inspire confidence, convicted and sentenced the appellant for life imprisonment. Now it is settled by this Court as well as apex Court of Pakistan that if evidence of the same witness has been disbelieved to the extent of one set of accused persons then same can only be believed against the other set of accused persons, if same was corroborated by any independent piece of evidence i.e. Lacking in the present case. In this regard we have fortified our view by case law titled "Rashid Masih Vs. The State "(2015 YLR 1293) and "Ghulam Sikandar and another v. Mamraz Khan and others" (PLD 1985 SC 11), "Iftikhar Hussain and others Vs. The State" (2004 SCMR 1185) and "Sarfraz alias Seff and 2 others Vs. The State "(2000 SCMR 1758).
11. The medical evidence produced by prosecution, in view of the fact that the ocular account has been disbelieved, is also inconsequential to establish guilt of the appellant because it is now settled law that medical evidence is corroborative piece of evidence which makes the ocular evidence with regard to seat of injury and its duration, nature of injury and kind of weapon used for causing such injury, but it would not connect an accused with the commission of crime. In this regard, reference may be made to the case reported as "Ghulam Mustafa and others v. State" (PLJ 2010 SC 522).
12. The recovery of weapon i.e. Rifle 44 bore has no evidentiary value as it is born out from the evidence that two empties collected from the spot sent to laboratory alongwith the recovered weapon with considerable delay. It has been held by august Supreme Court of Pakistan in case titled "Ali Sher and others versus The State" (2008 SCMR 707) that:- and having been sent to the F.S.L alongwith the crime weapons and that also 12 days after the alleged weapons of offence had been allegedly recovered destroys and evidentiary value of the said piece of evidence. These recoveries, therefore, cannot offer any corroboration to the ocular testimony."
13. In view of above discussed facts, the case of appellant is not free of doubts and it is settled principle of law that benefit of doubt must accrue in favour of accused as the august Supreme Court of Pakistan has held in case titled "Muhammad Khan and another Vs. State" (PLJ 2000 SC 1041) that "it is axiomatic and universal recognized principle of law that conviction must be founded on unimpeachable evidence and certainty of guilt and hence any doubt that arises in prosecution case must be resolved in favour of accused."
14. Moreover it is cordial principle of criminal jurisprudence that a single instance caused a reasonable doubt in the mind of Court entitles the accused to the benefit of doubt not as a matter of grace but as a matter of right. Reliance is placed on case law titled as "Muhammad Akram versus The State" (2009 SCMR 230) and case titled "Tariq Pervaiz Vs. The State" (1995 SCM R 1345).
15. In the light of above discussed facts, we are of the view that prosecution has failed to prove its case beyond any shadow of doubt against appellant and his co-accused, therefore, we accept instant criminal appeal and set-aside conviction and sentence of appellant Muhammad Ayub awarded by learned trial Court vide impugned judgment dated 27.03.2009 and acquit him of the charge by extending him the benefit of doubt. Appellant Muhammad Ayub is on bail, so his surety is discharged from the liability of his bail bonds. While the appeal against acquittal filed by Rajab Ali, complainant is hereby dismissed.