Farrukh Gulzar Awan, J. This judgment shall dispose of Criminal Appeal No.375-J of 2011 filed by Muhammad Asghar convict/appellant, who was convicted and sentenced by the learned Additional Sessions Judge, Layyah after trial in case FIR No.54 dated 30.1.2008 under Section 302 read with Section 34 PPC registered at Police Station City Layyah vide judgment dated 11.3.2010, who was sentenced as under:- Under Section 302 PPC Death and to pay compensation of Rs.100,000/- to the legal heirs of the deceased Muhammad Nadeem Khan and in default thereof to further undergo simple imprisonment for six months.
Under Section 364 PPC Rigorous imprisonment for 10-years and to pay the fine of Rs.25,000/- and in default thereof to further undergo simple imprisonment for six months.
Murder Reference No.97 of 2011 for confirmation or otherwise of death sentence of appellant Muhammad Asghar shall also be decided through this single judgment.
2. The squeeze facts as narrated in the crime report (Ex.PA/1) registered on the complaint (Ex.PA) of Hameedullah Khan complainant (PW-11) are that on 29.1.2008 at about 7:30 p.m. He along with his brother Ataullah Khan (PW-12), brother-in-law (Behnoi) Fazal Rasool Khan (given up PW), who had come from Chowk Azam to see him and his son Muhammad Nadeem Khan (deceased) was sitting in the Baithak of his rented house when Muhammad Asghar (appellant), a friend of his son Muhammad Nadeem Khan (deceased) previously known to them along with an unknown young boy wearing Shalwar Qameez having medium height and wheatish colour came there.
Muhammad Asghar asked Muhammad Nadeem Khan to accompany him, who took out his motorcycle CD-70 bearing No.8803/LYB. On the asking of complainant, Muhammad Nadeem Khan told that they were going on a feast hosted by Muhammad Asghar. Muhammad Nadeem Khan picked his mobile-phone Nokia-1600 and they all three went away on the motorcycle. Thereafter, the complainant along with Muhammad Ataullah Khan and Fazal Rasool prosecution witnesses went on walk after having meal. When they reached Housing Colony No.3 at 8/9:00 p.m., they heard shriek from Western side. In the light of torch, they saw Muhammad Asghar having Churri type dagger in his hand while the unknown person holding Muhammad Nadeem Khan deceased by putting iron chain around his neck. Third unknown person had caught Muhammad Nadeem from his arm. In their view, Muhammad Asghar appellant inflicted many injuries on head, nose, eyes and face of Muhammad Nadeem Khan, who fell down. The man having chain kept on pressing the same whereas the other unknown person put off Shalwar of deceased. Muhammad Asghar appellant chopped off testicles of the deceased with his Churri. The complainant and the witnesses raised Lalkara whereupon the accused extended threats to kill them and fled away on motorcycle of Muhammad Nadeem Khan from the spot on seeing the people of vicinity. They attended Muhammad Nadeem Khan deceased, who had succumbed to the injuries at the spot.
Motive behind the occurrence was that Muhammad Nadeem Khan deceased was having friendship with some boys besides Muhammad Asghar appellant whereas Muhammad Asghar appellant being annoyed over the friendship of the deceased with other people, had been restraining him but despite this, the deceased kept on friendship with other boys. Muhammad Asghar appellant nourished grudge and then with the help of his co-accused, brutally committed the murder of Muhammad Nadeem Khan.
3. After submission of challan and framing of charge, the prosecution produced 14-prosecution witnesses in order to prove its case.
4. Dr. Ghulam Mustafa PW-6 conducted post mortem examination on the dead body of Muhammad Nadeem Khan deceased and observed the following injuries:- "INJURIES No.1 An incised wound 3 cm x 1 cm on the middle of fore-head going deep into the cranium.
No.2 An incised wound 3 cm x 1 cm on the base of nose going into the cranium.
No.3 An incised wound 3 cm x 1 cm into going deep just close and right to the injury No.2.
No.4 An incised wound 3 cm x 1 cm into bone exposed on the left side of fore-head.
No.5 An incised wound 3 cm x 1 cm into bone exposed on the left side of left eye.
No.6 An incised wound 3 cm x 1 cm into going into the cranium just below the left eye brow.
No.7 An incised wound 3 cm x 1 cm into going into the cranial cavity on the left parietal region, 4.5 cm above the tip of left ear.
No.8 An incised wound 4 cm x 1 cm into bone exposed on the left parietal region, 2 cm below the injury No.7.
No.9 An incised wound 2 cm x 1 cm into bone exposed behind left ear.
No.10 An incised wound 2 cm x % cm into bone deep, 1 cm behind and below the injury No.9.
No.11 An incised wound 3 cm x % cm into muscle deep on right cheek.
No.12 An incised wound 3 cm x 1/4 cm on the right nostril of nose. Nostril was separated from the rest of the nose.
No.13 A piece of flesh was cut in an area of 4 cm x 2 cm on the right side of upper lip.
No.14 A piece of flesh was cut in the area of 4 cm x 2 cm from mid of chin.
No.15 An incised wound 1 cm x 1/4 cm into middle of pinna of right ear.
No.16 An abrasion 2.5 cm into 1 cm below the chin. No.17 A contusion 2 cm x 1 cm on the top of right shoulder.
No.18 An abrasion 4 cm x 3 cm on the back of left shoulder.
No.19 An abrasion 3 cm x 3 cm on the back of left chest.
No.20 An abrasion 1 cm x 1 cm on the front of left shoulder.
No.21 An abrasion 6 cm x 3 cm on the outer area of left deltoid region.
Urinary bladder was full of urine. Scrotum was absent and was cut by sharp edge weapon.
Testicles were absent.
Opinion was given in following words.
Cause of death in this case was due to injuries No.1, 2, 3 & 7 and injury to scrotum were sufficient to cause death in ordinary course of nature due to haemorrhage and shock and injury to vital organ (brain). Duration between injury and death was 10 to 15 minutes whereas between death and post mortem was 10 to 12 hours."
Ex.PC is the carbon copy of post mortem report and Ex.PC/1 is the pictorial diagram showing location of injuries.
5. Prosecution produced fourteen witnesses while giving up Tanveer Ahmad and Fazal Rasool Khan being unnecessary and after tendering in evidence the report of Chemical Examiner (Ex.PT), those of Serologist (Ex.PT/1) regarding blood stained earth, Chemical Examiner (Ex.PU) and Serologist (Ex.PU/1) regarding dagger, closed its evidence.
6. The appellant was examined under Section 342 Cr.P.C. The incriminating evidence produced by the prosecution was put to him, which he termed as incorrect, to question as to why this case was registered and why the PWs have deposed against him, he replied as under:- "Uncle of deceased PW Fazal Rasool and his father Abdul Wahid had purchased Minarets of their mosque and Madrasah from me and that they had not been paying the due amount Rs.10,000/-.
Two days prior to registration of this case I had gone to the Madrisah of PW Fazal Rasool and demanded due amount but Fazal Rasool and his father did not pay my money. Due to their negative response, I humiliated Fazal Rasool and his father Abdul Wahid in presence of other people on which they feel insult, due to that grudge complainant and PWs falsely implicated me in this blind murder case under the influence of Fazal Rasool PW and his father. I am innocent and I have no connection with the murder occurrence of Nadeem deceased. All the PWs are close relatives due to close relations with each other they involved me in this case falsely and made a false statement against me. I am innocent."
7. The appellant neither opted to appear on oath as witness under Section 340(2) Cr.P.C. Nor produced evidence in his defence. However, co-accused Muhammad Yousaf produced four witnesses as well as documentary evidence in his defence.
8. Learned trial Court, after hearing learned counsel for the parties and going through the evidence on record, convicted the appellant and sentenced him supra whereas acquitted Muhammad Yousaf co-accused.
9. Learned counsel for the appellant has contended that it was a dark night un-witnessed occurrence; that the appellant has been falsely roped in this case due to dispute over money; that as per story of the FIR (Ex.PA/1) the appellant along with his co-accused called Muhammad Nadeem Khan for feast but the prosecution made improvement by effecting the recovery of testimonials of the deceased in order to widen net and fill up the lacunas; that it was a dark-night occurrence and according to scaled site plan (Ex.PB), distance between the prosecution witnesses and the place of occurrence was 13-Karams and as such in the absence of intensity of light of torch, identity of the accused is doubtful; that post mortem examination of the deceased was conducted with the delay of more than twelve hours, which is suggestive of the possibility that the same was delayed in order to procure and plan eye-witnesses and cook up a story for involving the persons of their own choice; that during cross-examination the complainant deposed that the occurrence lasted within 2/3 minutes but according to the report of medical expert, Muhammad Nadeem Khan deceased received 21-injuries on his face and other parts of the body, which contradicts the oral deposition; that the prosecution has failed to prove motive part of the occurrence; that the prosecution has failed to prove its case beyond any shadow of doubt; that it is well settled principle of law that even slightest doubt in the prosecution case favours the accused leading to his acquittal; that there are material contradictions in the statements of the prosecution witnesses as they have made improvements in their statements which goes to the very root of the case; that the prosecution has failed to establish guilt of the appellant, therefore, he is liable to be acquitted.
10. On the other hand, learned DPG assisted by learned counsel for the complainant contends that the appellant was nominated with the specific role of giving Churi blows on the person of Muhammad Nadeem Khan (deceased); that the eye witnesses have fully implicated the appellant in the occurrence; that the appellant was duly identified by the eye witnesses in light of torch and there is no occasion for their misidentification; that presence of all the prosecution witnesses at the place of occurrence is natural one; that the prosecution has successfully proved motive behind the occurrence as discussed by the learned trial Court and that the learned trial Court has rightly convicted the appellant.
11. We have heard the learned counsel for the appellant, learned DPG for the State assisted by learned counsel for the complainant and have also gone through the record.
12. Ocular account of the occurrence in issue had been provided before the learned trial Court by Hameedullah Khan complainant (PW-11) and Ataullah Khan (PW-12). Both the said prosecution witnesses have claimed themselves to have witnessed the occurrence along with one Fazal Rasool Khan (given up PW). All the above said witnesses were not only related to the deceased but also chance witnesses. Hameedullah Khan is father and Ataullah Khan is paternal uncle and Fazal Rasool Khan is 'Phupha' of the deceased. Ataullah Khan, the complainant and eye witness are resident of Chowk Azam, which is far off from the place of occurrence, who had statedly seen the occurrence when they were on walk after having meal. Muhammad Asghar appellant along with an unknown person took Muhammad Nadeem Khan deceased at about 7:30 p.m. And the occurrence took place at about 8/9:00 p.m. It is strange that soon after Muhammad Nadeem Khan deceased left the house, the appellant and the prosecution witnesses took meal and went to walk and that too towards the place of occurrence and reached their exactly at the time when the appellant was giving dagger blows to Muhammad Nadeem Khan deceased. It is quite strange that if the appellant had to murder the deceased then he did not have to wait for arrival of the witnesses for starting infliction of dagger blows upon the deceased. According to post mortem report (Ex.PC), Muhammad Nadeem Khan deceased received 21-injuries and his scrotum was also cut. The complainant during cross-examination deposed that the deceased sustained injuries in their presence, they did not try to catch hold of the accused persons and that the accused kept on inflicting injuries to the deceased for 2/3 minutes. Medical expert deposed that the time elapsed between injuries and death was 10 to 15 minutes but the complainant claimed it a sudden death deposing that soon after the occurrence, which took 2/3 minutes, he along with the witnesses attended his son, who had succumbed to the injuries. We have found it quite strange that despite their presence at scene of the crime at the relevant time, the eye witnesses had not tried to stop the appellant from inflicting injuries on the person of deceased, who was closely related to each of them.
13. Hameedullah Khan (PW-11) and Ataullah Khan (PW-12) have claimed that they had witnessed the occurrence in the light of torch. According to site plan with scale (Ex.PB) prepared by Abdul Razzaq Patwari (PW-3) distance between point No.1 (where the dead body of deceased was lying) and point No.3 (from where the eye witnesses had witnessed the occurrence) is 13-Karams i.e. More than 71-feet. Though torch (P-12) was produced by the complainant and was taken into possession by Ghulam Akbar, SI (PW-13) vide recovery memo (Ex.PK) but there is nothing on record to show the intensity of said torch. Moreover, identification of accused by the torch light from the distance of more than 71-feet appears to be doutbful. We are fortified from the case law reported as "THE STATE versus FAZAL AHMAD AND ANOTHER (1970 P.Cr.L.J. 633 [Peshawar])" wherein at Page No.635, it has been held as under:- "it was argued that the respondents were identified by the torch light. We are not influenced with this argument, because, in our opinion, identification in the light of the torch was not considered as sufficient piece of evidence and besides there was no reason why the respondents should have lit the torch.
14. We have observed that no time of post mortem examination has been mentioned by Dr. Ghulam Mustafa (PW-6) either in his report (Ex.PC) or in his deposition before the learned trial Court. However, probable time between injuries and death was 10 to 15 minutes and between death and post mortem was 10 to 11 hours. This occurrence took place at about 8/9:00 p.m. And the case was registered on 30.1.2008 at 12:05 a.m. We have observed that the autopsy of Muhammad Nadeem Khan deceased was conducted with a noticeable delay of 10 to 11 hours, which suggests that the same was done in order to manage eye-witnesses and to cook up strong story. Reliance is placed on case titled "IRSHAD AHMED versus THE STATE (2011 SCM R 1190)" wherein at page No.1193, it has been held as under:- "We have further observed that the post-mortem examination of the dead body of Shehzad Ahmed deceased had been conducted with a noticeable delay and as 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 dead body conducted."
15. There is yet another factor available on the record which detracts from the veracity of the above mentioned eye-witnesses. Hameedullah Khan complainant (PW-11) mentioned in his complaint (Ex.PA) that Muhammad Nadeem Khan deceased took out his motorcycle CD-70 bearing registration No.8803/LYB, picked his mobile phone Nokia-1600 and left the house along with Muhammad Asghar appellant and an unknown person on the said motorcycle but while appearing in the Court, he made certain improvements while deposing that his son took mobile phone, citizen watch, registration book of motorcycle bearing registration No.8803/LYB Honda CD- 70 along with his other educational documents. The testimonial of deceased were recovered from co-accused Muhammad Yousaf (since acquitted) vide recovery memo Ex.PQ consisting of photocopy of identity card of the complainant, copy of Matriculation certificate of the deceased, copy of character certificate Millat Public School Chowk Azam, copy of press-clipping Nawa-i- Waqat dated 22.1.2008 and two passport size colour photographs of the deceased. The aforesaid improved statement of complainant as well as recovery of documents reflects that Muhammad Nadeem Khan deceased might have left the house in connection with the search/consultation of some job. The aforesaid improvement is very much material and cannot be said being ordinary in nature. It has been well settled by the apex Court that when a witness improves version, the improved statement subsequently made cannot be relied upon and its credibility becomes doubtful. We have respectfully drawn guidance in this respect from cases titled "AKHTAR ALI and others vs. THE STATE (2008 SCM R 6)" and "FARMAN AHMAD vs. MUHAMMAD INAYAT and others (2007 SCM R 1825)", wherein at page No.1829, it has been held as under:- "It is also a settled maxim when a witness improves his version to strengthen the prosecution case, his improved statement subsequently made cannot be relied upon as the witness had improved his statement dishonestly, therefore, his credibility becomes doubtful on the well-known principle of criminal jurisprudence that improvements once found deliberate and dishonest cast serious doubt on the veracity of such witnesses."
16. Muhammad Asghar appellant got recovered motorcycle (P-15) vide recovery memo (Ex.PL), weapon of offence i.e. Blood stained Churi (P-1) vide recovery memo (Ex.PM), mobile phone Nokia- 1600 of the deceased (P-16) and wrist watch Citizen (P-17) vide recovery memo (Ex.PN). Mobile phone (P-16) was not containing sim-card. Recovery of weapon of offence and certain other articles from the appellant belonging to the deceased is not substantial piece of evidence for awarding conviction and is only corroborative one. It is not being corroborated in the aforesaid peculiar circumstances of case and as such, is not beneficial to the prosecution. It has been held by August Supreme Court of Pakistan in case titled "ALI MUHAMMAD versus BASHIR AHMAD and others (2003 SCM R 868)" at page No.869 as under:- "It may be mentioned here that recovery of weapon of offence by itself without any other corroborative evidence was not a substantial piece of evidence."
17. Medical evidence would not provide corroboration to the ocular account, as the same does not inspire confidence and keeping in view the stance of prosecution, identification of appellant is under serious cloud. We may observe that from such distance it was not possible for any of the witness to disclose the role of appellant keeping in view of the number of assailants.
18. Motive even if taken as correct, would not improve the case of prosecution in view of non- availability of convincing ocular account.
19. It is always duty of the prosecution to stand on its own legs and to prove the case beyond any shadow of doubt and even if slightest doubt arises, benefit of the same must go to the accused and conviction on the same evidence cannot be sustained as discussed above. The prosecution, as discussed above, has miserably failed to prove its case against the appellant beyond reasonable doubt. It is cardinal principle of criminal jurisprudence that a single instance causing a reasonable doubt in the mind of the Court entitles the accused to the benefit of doubt and that such benefit must accrue in favour of the accused as a matter of right not as a matter of grace.
Reliance can be placed on case titled "TARIQ PERVEZ versus The State (1995 SCM R 1345)", wherein at page No.1347, it has been held as under:- "For giving benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubts. If a simple circumstance creates reasonable doubtful in a prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right."
20. Epitome of above discussion is that while extending benefit of doubt, setting aside the judgment of conviction dated 11.3.2010, Muhammad Asghar appellant is hereby acquitted resulting in acceptance of his Criminal Appeal No.375 of 2011. He be released forthwith, if not required in any other case.
21. Death Sentence awarded to Muhammad Asghar appellant is not confirmed and Murder Reference No.97 of 2010 is answered in negative.