' ABDUL SAMI KHAN, J.---Through this appeal under section 410, Cr.P.C. Shahbaz appellant has called in question the judgment dated 28-9-2006 handed down by the learned Additional Sessions Judge Chiniot, District Jhang, wherein the appellant was convicted under section 302(b), P.P.C. For Qatl-i-amd of Muhammad Ejaz and was sentenced to death. He was also ordered to pay compensation of Rs.100,000 (Rupees one hundred thousand only) to the legal heirs of deceased under section 544-A, Cr.P.C. In case of nonpayment thereof he shall undergo simple imprisonment for six months. The appellant has filed the instant appeal against his conviction and sentence whereas the learned trial court has sent a Reference under section 374, Cr.P.C. Which has been numbered as Murder Reference No.185 of 2007 for confirmation or otherwise of the death sentence passed against appellant Shahbaz. The complainant has also filed Criminal Appeal No.1787 of 2006 against the acquittal of co-accused of the appellant namely Nasrullah, Ghulam Ali, Murid Hussain, Mehdi, Tahir, Sarfraz alias Baggu and Zafar. We are inclined to decide all these matters together through this single judgment.
2. The unfortunate occurrence was reported to the police by Saleem Akhtar complainant (P.W.6) through his statement (Exh.PE), consequently FIR. No.354/2002 dated 7-10-2002 (Exh.PE/1) was lodged at Police Station Bhowana, District Jhang, in respect of offence under sections 302/34, 109, P.P.C. The prosecution story set forth in the FIR by the complainant (Ex.PE) is reproduced below:- "the complainant was resident of Chak No.187-GB and was cultivator by profession. His father had taken agricultural land measuring nine acres on lease near the "Bhaini" of Zafar resident of Chak No.188-GB. In the preceding night he along with his brother Muhammad Ejaz went to irrigate their land at "Bhaini" of Zafar. As the turn of water was to be started with effect from 6:00 a.m. So they slept at the "Bhaini" of Zafar on separate cots whereas Muhammad Aslam and Gulzar who were also present there slept on different cots. At about 1:30 a.m. They woke up after hearing noise and saw that Tahir armed with rifle, Mehdi armed with rifle, Sarfraz alias Baggu armed with .12 bore gun were present in the room. He identified them in the electric light. Tahir fired at his brother Muhammad Ejaz which landed on his chest. Mehdi fired at his brother Muhammad Ejaz which hit on his abdomen. Tahir again fired at his brother which he sustained on his chin. In the meantime, Sarfraz alias Baggu while aiming his .12 bore gun at them kept on raising lalkaras that if they would move, they would be killed. They kept quiet due to fear of life. The accused persons while brandishing their weapons fled away from the place of occurrence. This occurrence had been committed by the accused persons at the abetment of Zafar.
' The motive behind the occurrence as narrated by the complainant in the FIR was that accused Tahir had suspicion that Muhammad Ejaz deceased had developed illicit relations with his sister who was wife of Zafar and due to that grudge the accused persons in furtherance of their common object had murdered his brother Muhammad Ejaz with firearm weapons. After leaving Muhammad Aslam Chadhar and Gulzar Chadhar to guard the dead body of Muhammad Ejaz deceased, the complainant himself was going to the police station to report the matter when Muhammad Yasin SI Police Station Bhowana met him on the way. The dead body of his brother Muhammad Ejaz was lying at the place of occurrence, so criminal case be registered against the accused persons."
3. To substantiate its version at the trial, the prosecution produced as many as sixteen prosecution witnesses before the learned trial court. The ocular account was furnished by Saleem Akhtar complainant (PW6) and Muhammad Aslam (P.W.9). Muhammad Yaseen SI (P.W.11) is the investigating officer who appeared before the learned trial court and stated about various steps taken by him during the course of investigation of this case. The medical evidence in this case had been furnished by Dr.Ghulam Hussain, Medical Officer RHC Bhowana (PW7) who had conducted the postmortem examination on the dead body of the deceased Muhammad Ejaz. Rest of the evidence adduced by the prosecution is almost formal in nature. After tendering in evidence report of Chemical Examiner (Exh.PO), report of Serologist (Exh. PQ) and report of Forensic Science Laboratory (Exh.PR), the prosecution closed its evidence.
4. The appellant in his statement recorded under section 342, Cr.P.C. Controverted all the allegations levelled against him by the prosecution and he had also professed his innocence and pleaded false implication in this case. The appellant did not opt to record his statement under section 340(2), Cr.P.C. In disproof of allegations leveled ,against him by the prosecution. However, the appellant produced documents Exh. DA to Exh.DQ in his defence.
5. At the end of the trial, after thrashing the entire evidence and considering the arguments advanced by the learned counsel for the parties in support of their respective versions, learned trial Court acquitted co-accused of the appellant namely Nasrullah, Mehdi, Murid Hussain, Sarfraz, Tahir, Zafar and Ghulam Ali by extending benefit of doubt in their favour and proceeded to convict and sentence the appellant as mentioned in paragraph No.1 of this judgment.
6. Learned counsel for the appellant contends that the judgment is against law and facts of the case. The prosecution has miserably failed to prove its case against the appellant beyond any shadow of doubt. There is a delay of two and a half hours in the registration of FIR which prima facie shows that the FIR has been got recorded after due deliberations and consultations and no explanation whatsoever has been given by the complainant for this inordinate delay. The appellant is not named in the FIR. He has been roped in this case by the complainant through supplementary statement recorded by the investigating officer on 7-10-2002 due to enmity with Zafar accused as well as with Zafar father of the complainant against whom the appellant had moved various applications for his illegalities and misconduct of service. Through the supplementary statement the complainant has substituted the main accused Tahir with the appellant and also involved Ghulam Ali in this case. The substitution of main accused at a later stage clearly shows that the eye-witnesses were not present at the place of occurrence at the relevant time and after making deliberations and consultations the appellant has been falsely involved in this case. All this makes the case of the prosecution highly doubtful. It is settled law that not many circumstances creating doubt in the prosecution story are required but only one circumstance creating doubt in the prosecution story is enough to acquit the accused. The complainant has spread the net wide and falsely involved the appellant and his co-accused in this case in connivance with the local police so that nobody is left behind to pursue this case. The prosecution witnesses are related inter se and interested witnesses. The prosecution has not produced any corroborative piece of evidence in respect of these witnesses. The prosecution witnesses have made dishonest improvements in order to strengthen the prosecution case. There are glaring contradictions in the statements of the prosecution witnesses. On the same set of evidence co-accused of the appellant namely Nasrullah, Mehdi, Murid Hussain, Sarfraz, Tahir, Zafar and Ghulam Ali have been acquitted by the learned trial court so the same set of evidence cannot be believed against the appellant. The motive has not been proved by the prosecution. The recovery has been planted upon the appellant. Ghulam Ali co-accused of the appellant from whom pistol .30 bore (Exh.PN) was recovered has been acquitted by the learned trial court. In the circumstances the story narrated, by the prosecution has become doubtful and the benefit of doubt always goes to the accused. The learned counsel prays that the appeal filed by the appellant be allowed and he be acquitted from the charge and the appeal filed by the complainant against the acquittal of co-accused of the appellant be dismissed.
7. On the other hand learned Deputy Prosecutor-General assisted by the learned counsel for the complainant contends, that although the appellant is not nominated in the FIR .Yet he has been named in this case through the supplementary statement recorded by the complainant on 7-10- 2002 wherein he has been attributed specific role for causing fatal firearm injury on the person of deceased which caused his death and the role attributed to him is borne out from the postmortem examination report of Muhammad Ejaz deceased. The matter was promptly reported to the police and there is no element of deliberation or consultation. The prosecution has successfully proved its case against the appellant by adducing ocular account and medical evidence. The ocular account is in line with the medical evidence. There are some minor discrepancies which cropped up with passage of time but those are not fatal to the prosecution case. The complainant Saleem Akhtar (PW.6) is brother of the deceased Muhammad Ejaz so it is not expected from a close kith and kin to leave the real culprit and falsely involve the appellant in this case. The appellant acted in a brutal manner at the spot and murdered brother of the complainant Muhammad Ejaz. Relation inter se is no ground to disbelieve the confidence inspiring evidence adduced by the prosecution witnesses. The recovery of rifle 8MM (Exh.PD) and that of Rs.4000 currency notes (Exh.PK) effected from the appellant is proved through the confidence inspiring evidence of the recovery witnesses and report of Forensic. Science Laboratory is positive. The motive has been proved by the prosecution. The prosecution witnesses are consistent on each and every material point. There seem no discrepancies in their statements. The prosecution has successfully proved its case against the appellant beyond any doubt, thus, the appeal filed by the appellant be dismissed and the appeal filed by the complainant against the acquittal of co-accused of the appellant be allowed and they be punished in accordance with law.
8. We have heard the learned counsel for the parties at length, have given our anxious consideration to their arguments and have also scanned the record with their able assistance.
9. In the present case the occurrence took place. On 7-10-2002 at 1.30 a.m. And the matter was reported to the police 4.00 a.m. And thereafter the FIR was chalked out at 4.10 a.m. On the same day whereas the distance between the place of occurrence and the Police Station is just five miles.
We have particularly observed that although the FIR has been shown to be registered within a span of two hours and forty minutes yet the fact remains that Post-mortem Examination on the deadbody of Muhammad Ijaz deceased was conducted at 8.30 p.m. On 7-10-2002 with an unexplained delay of sixteen hours in spite of the fact that the deadbody had reached the Hospital at 2.00 a.m. All these facts show that the FIR was not registered at the time mentioned therein and possibility cannot be ruled out of consideration that the FIR has been recorded after deliberations and consultations. Reliance is placed on the case of Irshad Ahmed v. The State (2011 SCM R 1190) wherein it has been held as under:-- "We have further observed that the post-mortem examination of the deadbody of Shehzad Ahmed deceased 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 post-mortem examination of the deadbody conducted."
10. The ocular account in this case has been furnished by Saleem Akhtar complainant (PW6) and Muhammad Aslam (PW9). A perusal of the record shows that after registration of the FIR (Exh.PE/I)
Salem Akhtar complainant (PW6) had also got recorded supplementary statement (Exh. DB) at 9/10.00 a.m. On the same day through which he has changed the role of Tahir acquitted co- accused and has attributed the same role to the present appellant Shahbaz that he has fired from his rifle 8 mm which landed on the chest of Muhammad Ijaz deceased. The second fire made by Shahbaz appellant hit Muhammad Ijaz deceased on his chin whereas fire shot made by Mehdi acquitted co-accused landed on the abdomen of the deceased under umbilicus. There is yet another important fact that being dissatisfied with the investigation of this case. Saleem Akhtar complainant (PW6) has instituted a private complaint on 20-2-2003 with a delay of more than three months wherein he has again attributed the main role to Tahir acquitted co-accused that he had made first fire from his rifle which landed on the chest of Muhammad Ijaz deceased and the second fire shot by Tahir landed on the chin of the deceased whereas fire shot made by Mehdi acquitted co-accused landed on the abdomen under the umbilicus of the deceased but later on for the reasons best known to the complainant he has withdrawn the private complaint. It is intriguing to observe here that when Saleem Akhtar complainant (PW6) appeared before the learned trial court to adduce evidence he has again taken somersault and has attributed first fire- shot on the chest of the deceased to Tahir acquitted co-accused and second fire-shot was attributed to Mehdi acquitted co-accused on the abdomen of the deceased under umbilicus whereas the third fire-shot injury has been attributed by him to Shahbaz appellant which hit under the chin of Muhammad Ijaz deceased. In this way on three different occasions the complainant (PW6) has taken three divergent stands regarding the role allegedly played by the appellant during the. Occurrence. All this shows that the complainant was not sure that who has committed the occurrence. The stance taken by Saleem Akhtar. Complainant (PW6) before the learned trial court was also followed by Muhammad Aslam (PW9) before the learned trial court. The conduct displayed by the complainant in this case while considered by us with the touchstone of delayed FIR and Postmortem Examination Report it has become crystal clear that he has been making efforts on different occasions by taking divergent stands to falsely entangle the appellant in this case. The behavior of the complainant itself is sufficient to disbelieve his evidence D and to conclusively determine that neither he was present at the scene of crime at relevant time nor has he seen the occurrence rather he has been summoned after taking place of occurrence to become an eye-witness being brother of the deceased. The dishonest improvements made by him constrained and forbade us to disbelieve his evidence and the evidence adduced by Muhammad Aslam (PW9). A minute analysis of the prosecution evidence shows that the witnesses have made dishonest improvements in order to bring their testimony qua ocular account. It is settled law that evidence of a witness who made dishonest improvement in order to bring his statement in line with the ocular account 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). So the medical evidence in, this case has not provided support to the ocular account.
11. Now analyzing the occurrence and the evidence furnished by the eye-witnesses to prove the ocular account it is astonishing to point out here that Tahir and Mehdi acquitted co-accused were also attributed firearm injuries on vital part of the body of the deceased but both of them were acquitted of the charge by the learned trial court by extending benefit of doubt to them. If the position was so then it does not appeal to mind that why the appellant only was found by the learned trial court to be responsible for the murder of deceased Muhammad Ijaz. By virtue of passing the impugned judgment dated 28-9-2006 the learned trial court acquitted seven co- accused of the appellant namely, Nasrullah, Ghulam Ali, Mureed Hussain, Mehdi, Tahir, Sarfraz and Zafar so on the same set of evidence majority of the accused have earned acquittal but only the appellant was convicted for the murder of deceased whose attribution had been changed by the complainant time and again, of course under legal advice. We have no manner of doubt in our mind that same set of shaky evidence cannot be believed qua the culpability of the appellant in this case. Even otherwise the ocular account has been furnished by interesting 'witnesses the evidentiary value of whom is not trustworthy or above-board to be relieved upon the same. Thus, the ocular account furnished by Saleem Akhtar complainant (PW6) and Muhammad Aslam (P.W.9) is disbelieved by us.
12. Apart from ocular account the prosecution to prove the guilt of the appellant and his acquitted co-accused also produced Nausher (PW3) and Akbar (PW4) who both have furnished evidence of conspiracy/ abetment. Although they have furnished evidence of hatching conspiracy by the appellant and his co-accused for committing the murder of Muhammad Ijaz deceased yet the fact remains that it does not appeal to a person of prudent mind that the appellant along with his acquitted co-accused would hatch conspiracy in a loud voice in an open place to kill the deceased so that the witnesses can hear their voice and thereafter the G same can be used against them in a murder case. Thus, the evidence furnished by the above said witnesses is unbelievable and it seems that the above witnesses have been brought by the prosecution in the witness box or they have been introduced just to strengthen the case of prosecution otherwise they have no concern with the occurrence at all. In the backdrop of such shabby evidence against the appellant the prosecution ought to produce strong and independent evidence in this case to bring the guilt of the appellant home but it has miserably failed in this respect. We are clear in our mind that conviction cannot be recorded on the basis of such type of evidence as adduced by the prosecution in this case.
13. The medical evidence in this case has been furnished by Dr. Ghulam Hussain, Medical Officer, Rural Health Centre, Bhowana (PW7) who has seen three firearm injuries on the person of Muhammad Ijaz deceased but in this contenxt we have particularly observed that the medical evidence can only provide the nature and seat of injury, the firearm used during the occurrence, the distance between the assailant and the deceased and the duration between the death and Post-mortem Examination. The medical evidence in any manner cannot provide any clue regarding the person who has committed the murder of the deceased. Even otherwise law is quite settled on the point that medical evidence is only used for confirmation of ocular evidence regarding seat of injury, time of occurrence and weapon of offence, etc. But medical evidence itself does not constitute any corroboration qua the accused person for proving his culpability. Reliance in this regard can be placed on the case of Muhammad Sharif and another v. The State (1997 SCM R 866). Thus, the medical evidence cannot provide support to the ocular account especially when the ocular account has already disbelieved by us in view of our discussion made in preceding paragraphs.
14. The motive set up by the prosecution in the FIR is that Tahir accused had suspicion that Muhammad Ijaz deceased had illicit liaison with his sister who is also wife of Zafar son of Jamal Chajjoo acquitted co-accused but in this regard no independent person has been produced by the prosecution to prove motive. Mere bald accusation of the complainant and the PWs without independent corroboration cannot be relied upon to prove the motive in a murder case which carries death sentence. Even otherwise motive is a double edged weapon and law is quite settled on the point that if it is a reason for the accused to commit the occurrence then the same could also be for the complainant and the other eye-witnesses to falsely implicate the accused in the case. Reliance in this regard can easily be placed on the case of Allah Bakhsh and Muhammad Nawaz v. The State PLD 1978 SC 171 wherein it has been held as under:-- "Now though that occurrence took place a long time ago yet it could be said that the accused had a motive to murder the deceased. But then motive is a double edged weapon. If it could be the reason for the accused to murder the deceased, it could as well be the reason for the PWs who were close relations of the deceased to charge the accused falsely or on suspicion. Motive therefore by itself proves nothing."
15. So far as recoveries effected from the appellant in this case is concerned, the investigating officer on his first visit at the place of occurrence has allegedly collected one crime-empty of Rifle 8 mm (Mark-C) on 7-10-2002 but the fact remains that the appellant was arrested on 25-12-2002 and weapon of offence, i.e. Rifle 8 mm was recovered from him on 31-12-2002 and the same was sent to the Office of Forensic Science Laboratory on 5-6-2003 whereas the crime-empty was sent to the Office of Forensic Science Laboratory on 24-4-2003. The above narrated circumstances show that the police has kept the crime-empty and weapon of offence with it for so many months and sent the same to the Office of Forensic Science Laboratory with unexplained delay so possibility cannot be ruled out that empty was first prepared by the investigating officer in connivance with the complainant party and then sent the same to procure positive report from the Office of Forensic Science Laboratory to strengthen the case of prosecution. Another piece of recovery introduced by the prosecution is Rs.4000 which allegedly Shahbaz appellant has received as part-payment to commit the murder of deceased from Murid Hussain co-accused. It is important to mention here that Murid Hussain co-accused has already been acquitted by the learned trial court and admittedly the appellant has confessed to have received Rs. 4000 during police custody. Although the amount of Rs. 4000 has shown to have been effected from the appellant yet the fact remains that nothing has come on record as to where, when and in whose presence the amount has been received by the appellant from Murid Hussain acquitted co- accused. It does not appeal to a prudent mind that the appellant would commit the murder of deceased only for Rs. 4000 because nobody has told the exact amount agreed between the appellant and Murid Hussain accused for committing the murder of deceased. We may observe here that this piece of evidence has been introduced by he prosecution just to strengthen the case of the prosecution against the appellant. Thus, the recovery allegedly effected in this case is of no consequence and the positive report secured by the prosecution from the Office of Forensic Science Laboratory cannot provide corroboration to the ocular account.
16. The upshot of our discussion made above s that we have come to a definite conclusion that the complainant either under some compelling circumstances or under legal advice tried his level best to falsely entangle the appellant in this case but he miserably failed to fulfil his object in this regard and remained unable to prove guilt of the appellant beyond any shadow of doubt rather shadow of doubts is looming large in this case rendering the same smeared with dishonest and polluted evidence adduced by the related, chance and interested witnesses. Thus, the prosecution has failed to prove its case against Shahbaz appellant beyond any reasonable shadow of doubt. It is settled law that not many circumstances creating doubt in the prosecution story are required to acquit an accused rather single circumstance creating doubt is enough to extend benefit of same to the accused which too not as a matter of grace but as a matter of right. In the case of Sher Bahadur and another v. The State (1972 SCM R 651) the august Supreme Court of Pakistan has held as under:-- "(a) Penal Code (XLV of 1860), S. 302---Father and son injured with shot-guns by five persons--- Father succumbing to injuries and evidence of son as regards three accused disbelieved by trial court and High Court---Prudence, in circumstances, held, required that evidence of son being one by interested witness should have been accepted as against remaining two accused only if corroborated by some other reliable evidence".
' Similarly in the case titled Arif Hussain and another v. The State (1983 SCM R 428), the august Supreme Court of Pakistan has laid down the following principle:- "---S. 302---Murder---Evidence---Benefit of doubt--- ' Prosecution case not free from doubt---Charges not brought home to accused in manner required under law---Accused given benefit of doubt and acquitted."
' 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. So by extending the . Benefit of doubt to the appellant we acquit him of the charge. Criminal Appeal No. 1935 of 2011 filed by Shahbaz appellant is, therefore, allowed and he is acquitted of the charge. The appellant is in jail, he shall be released forthwith, if not required to be detained in connection with any other case.
17. Murder Reference No. 185 of 2007 is answered in the negative and the death sentence passed by the learned trial court against Shahbaz appellant is not confirmed.
18. Now adverting to the case of Tahir and Mehdi respondents Nos. 4 and 5 in Criminal Appeal No. 1787 of 2006, admittedly both of them have been attributed firearm injuries on the person of the deceased yet the fact remains that the complainant had been taking divergent stances with regard to the role of Tahir. A perusal of record of this case reveals that at first instance the complainant was found trying to assign two fatal fire-shot injuries to Tahir but later on he was found to have attributed the role of. Tahir to Shahbaz appellant in Criminal Appeal No. 1935 of 2011.
So by making divergent stances it was none else but the complainant who himself created doubt with regard to the case of Tahir respondent No.
5. So far as the case of Mehdi respondent No. 4 is concerned admittedly evidence furnished by both the eye-witnesses and witnesses of abetment are at variance and we have already disbelieved the ocular account in connected Criminal Appeal No. 1935 of 2011. Moreover when an accused is acquitted of the charge by a court of competent jurisdiction then double presumption of innocence is attached to his innocence and very strong and exceptional evidence is required to convert his acquittal into conviction which fact is lacking in the instant case. So taking into consideration our discussion made in preceding paragraphs Criminal Appeal No.1787 of 2006 being devoid of any merit is hereby dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.