MANZOOR AHMAD MALIK, J.---This judgment shall decide Criminal Appeal No.168-J of 2009 titled as "Zafar Iqbal alias Zafri and another v. The State" and Murder Reference No.42 of 2009 titled as "State v. Zafar Iqbal alias Zafri and another" as both these matters have arisen out of same case i.e. F.I.R. No.93 of 2005 dated 26-2-2005 offences under sections 302, 148 and 149, P.P.C. Registered at Police Station Lundianwala, District Faisalabad.
2. Zafar Iqbal alias Zafri and Abdul Sattar alias Laddi (appellants) have filed Criminal Appeal No. 1684 of 2009 against the judgment dated 22-12-2008, whereby, after having been tried along with their co-accused by the learned Additional Sessions Judge Faisalabad in the above mentioned case, they were convicted, under section 302 read with section 34, P.P.C. And sentenced as under:-- "33. For what has been discussed above, the prosecution has been able to prove the charge of double murder against Zafar Iqbal alias Zafri and Abdul Sattar alias Laddi accused persons for committing the Qatl-i-amd of Abdul Shakoor and Mst. Nazia Bibi deceased, through reliable and unimpeachable evidence. Therefore, both Zafar Iqbal alias Zafri and Abdul Sattar alias Laddi accused persons are convicted under section 3b2(b)/34, P.P.C. On two counts and sentenced to DEATH on two counts. Both of them shall be hanged by their necks till they are dead. The death sentence shall be subject to confirmation by the Hon'ble Lahore High Court, Lahore. The convicts are also directed to pay compensation of Rs.1,00,000 each to legal heirs of each of the deceased persons under section 544-A, Cr.P.C. And in case of non-payment of the same, each of them shall further undergo 6 months' RI in each count."
The learned trial court has sent Murder Reference No.42 of 2009 for confirmation or otherwise of the sentence of death awarded to Zafar Iqbal alias Zafri and Abdul Sattar alias Laddi (convicts). It is relevant to note here that three co-accused of the appellants namely Muhammad Imran, Muhammad Ehsan alias Shan and Sher Ali were acquitted by the learned trial court through the same judgment while extending them benefit of doubt.
3. Briefly, facts of the case, according to the F.I.R. (Exh.PD/1) recorded on the basis of statement (Exh.PD), made by Manzoor Ahmad (P.W.9) are that he was resident of Chak No.630/GB and a labourer. At about 11-15 p.m., he along with Abbas son of Muhammad Din, Muhammad Akram son of Sher Muhammad caste Sandhu Jat, Muhammad Akram son of Sher Muhammad caste Mochi, Muhammad Aslam son of Taja, caste Mochi residents of the village, were talking while standing outside the street leading to mosque. Muhammad Ihsan alias Shan son of Riasat, caste Bhatti resident of the same village, Abdul Shakoor brother of complainant and Mst. Nazia Bibi daughter of Sher Muhammad caste Mochi resident of the village passed beside them. After their departure, the complainant had a loud thinking as to where they were going at late night and chased them along with his companions. When they reached the unpaved path near the house of Irshad son of Ali Muhammad caste Juttu, Zafar Iqbal alias Zafri and Abdul Sattar alias Laddi (appellants) along with Imran son of Riasat, caste Bhatti, Sher Ali son of Sultan, caste Bhatti residents of the same village and an unknown accused were already available there, while armed with firearms and were identified in the moonlight. Within the view of the complainant's side, both the deceased persons namely Mst. Nazia Bibi and Abdul Shakoor who had been brought there by Muhammad Ehsan alias Shan were fired at by Zafar alias Zafri (appellant), which hit on the head of Mst. Nazia Bibi. Whereas Abdul Sattar alias Laddi (appellant) made a burst hitting Abdul Shakoor (deceased) on his head.
Mst. Nazia Bibi and Abdul Shakoor fell down on the unpaved road after receiving the bursts. All the accused persons while making firing went towards north on unpaved road. The complainant along with his companions attended Mst. Nazia Bibi and Abdul Shakoor, but they had succumbed to the burst injuries at the spot. The occurrence was witnessed by Abbas son of Muhammad Din, Muhammad Akram son of Sher Muhammad, Jat Sindhu by caste, Muhammad Akram son of Sher Muhammad, caste Mochi and Muhammad Aslam son of Taja caste Mochi besides the complainant but they did not come near due to fear of death. The motive as alleged in the F.I.R.
Was that Mst. Nazia Bibi (deceased) and Abdul Shakoor (deceased) had liaison inter se and due to this grievance, the accused persons, in prosecution of their common object, had committed the murder of Mst. Nazia Bibi and Abdul Shakoor. Leaving the dead bodies under the escort of his companions namely Abbas, Muhammad Akram, Sandhu Jatt, Muhammad Akram Mochi and Muhammad Aslam, the complainant proceeded to the Police Station to report the crime when the police met him in the way.
4. Muhammad Arshad Inspector (P.W.13) was posted as Incharge Investigation Cell, Police Station Lundianwala. On 26-2-2005, the file of this case was entrusted to him. He reached at the place of occurrence, prepared injury statements as well as inquest reports of Mst. Nazia Bibi and Abdul Shakoor and sent the dead bodies for autopsy. He prepared rough site plan (Exh.PT) of the place of murder of the deceased persons. He secured blood stained earth from the places of murder vide recovery memo. Exh.PL and Exh.PU. He also took into possession five empty bullets (P.5/1-5) lying near the dead body of Abdul Shakoor (deceased) and secured vide recovery memo (Exh.PM). He collected four empty bullets (P.6/1-4) lying near the dead body of Mst Nazia Bibi (deceased) and took the same into possession vide recovery memo (Exh.PV). After the post mortem examination last worn clothes of Mst. Nazia Bibi, viz kameez (P.1), and shalwar (P.2) were produced before him which were taken into possession vide recovery memo. (Exh.PA). Last worn clothes of Abdul Shakoor deceased viz shirt (P.7), shalwar (P.8) and bunyan (P.9) were also produced before him which were taken into possession vide recovery memo. (Exh.PW). On 2-3-2005 he took the Patwari to the place of occurrence for spot inspection who took rough notes and prepared the scaled site plan (Exh.PV and Exh.PV/1). On 15-3-2005, he arrested Zafar Iqbal alias Zafri (appellant) who on 18- 3-2005 during the course of interrogation allegedly led to the recovery of Kalashnikov (P.3) along with 10 live bullets (P.4/1-10) which was taken into possession vide recovery memo (Exh.PC). He declared Imran, Eshan and Sher Ali accused not involved in the commission of this crime. The investigation was, thereafter, entrusted to Zafar Yaseen ASI (P.W.12). On 1-11-2007, he formally arrested Abdul Sattar alias Laddi (appellant) who was already under the custody of Police in case F.I.R. No.79312007 registered at Police Station Sargodha Road, District Faisalabad under section 13 of the Arms Ordinance, 1965 read with sections 170 and 171, P.P.C. On 8-11-2007, he prepared challan against Abdul Sattar alias Laddi (appellant) and submitted the same before the court of competent jurisdiction.
5. Zafar Iqbal alias Zafri appellant along with his co-accused was summoned by the learned Additional Sessions Judge Faisalabad to face the trial. Copies of the documents as required under section 265-C Code of Criminal Procedure were provided to' them and formal charge under sections 302, 148 and 149, P.P.C. Was framed against them on 21-3-2006, however, fresh charge was framed against them on 18-6-2007. After arrest of Abdul Sattar alias Laddi (appellant) charge was again framed against both the appellants and their co-accused on 22-1-2008 to which they pleaded not guilty and claimed trial. In order to prove its case prosecution examined thirteen witnesses in all. Ocular account was furnished by Muhammad Abbas (P.W.8) and Manzoor Ahmad complainant (P.W.9). Dr Muhammad Akram (P.W.6) and Lady Dr. Kanwal Naeem Bari (P.W.11) who had conducted post mortem examinations on the dead bodies of Abdul Shakoor and Mst. Nazia, respectively, furnished the medical evidence. Zafar Yaseen ASI (P.W.12) and Muhammad Arshad Inspector/SHO (P.W.13) investigated this case and while appearing in the witness box narrated the various steps taken by them during the course of investigation. Khizer Hayat 4345/C (P.W.5) furnished the evidence qua abscondance of Abdul Sattar alias Laddi (appellant). Muhammad Yar A.S.I. (P.W.3) witnessed the recovery of Kalashnikov at the instance of Zafar Iqbal alias Zafri (appellant). Rest of the witnesses are formal in nature. Learned ADPP gave up Mati Ullah (P.W.) being unnecessary vide statement dated 16-4-2008 and Muhammad Khan 2633/HC (P.W.) being unnecessary vide statement dated 26-5-2008. On the application of the complainant, learned DDPP gave up Muhammad Akram son of Sher Muhammad, caste Jat, Muhammad Akram son of Sher Muhammad, caste Mochi and Muhammad Aslam son of Taja having been won over by the accused party vide statement dated 13-10-2008. Statements of the appellants and their co- accused were recorded under section 342, Code of Criminal Procedure on 19-12-2008 wherein they refuted all the allegations of prosecution levelled against them. To a question as to why the case against him and why the prosecution witnesses had deposed against him, Zafar Iqbal alias Zafri (appellant) replied as under:-- "Deceased Abdul Shakoor was Jatt by caste whereas Mst. Nazia Bibi was cobbler by caste and both were unmarried and had developed illicit relations with each other and due to that bad name was developed in the area. On the fateful night Mst. Nazia Bibi and Abdul Shakoor were caught red handed in compromising position by legal heirs of both the deceased, being in naked condition and both were done to death by their respective legal heirs and the P.Ws. Later on, after consultation and concoction false case was registered against all the accused. I was engaged with Nazia Bibi and due to her bad reputation our engagement came to an end on my behalf and due to this grudge, I and other accused were involved falsely in this case. The complainant has took four different versions in the shape of F.I.R., private 'complaint, application presented before ASP Mark-DA and statement dated 14-3-2005 Exh.DC of complainant. The private complaint filed by the complainant was dismissed by Mr. Munir Ahmed Joiya, learned Additional Sessions Judge Faisalabad on 21-3-2006 and I produce attested copy of that judgment as Exh.DJ in my defence."
To this question Abdul Sattar alias Laddi (appellant) replied as under:-- "My co-accused Zafar Iqbal alias Zafri has given detailed reply to this question and I rely upon the same reply. I was falsely involved in this case due to my friendship with Zafar Iqbal co-accused."
Both the appellants did not appear as their own witnesses in disproof of the prosecution allegations as provided under section 340(2) Code of Criminal Procedure nor did they produce any evidence in their defence.
6. After conclusion of the trial, the learned trial Court convicted and sentenced the appellants as detailed above. Hence, these appeals and Murder Reference. However, through the same judgment three co-accused of the appellants namely Muhammad Imran, Muhammad Ehsan alias Shan and Sher Ali were acquitted by the learned trial Court through the same judgment while extending them benefit of doubt and no appeal against their acquittal was filed either by the complainant or the State.
7. Learned counsel for the appellants, in support of this appeal, contend that there is a delay of more than two hours in reporting the matter to the Police because as per F.I.R. (Exh.PD/1) the occurrence took place at 11-15 p.m. On 25-2-2005 whereas the matter was reported to the Police at 1-30 a.m. On 26-2-2005 through statement (Exh.PD) made by Manzoor Ahmad complainant (P.W.9); that the crime was not reported to the Police even at the time as mentioned in the statement (Exh.PD) because post mortem examination on the dead body of Mst. Nazia Bibi (deceased) was conducted on 26-5-2005 at 3-45 p.m. Whereas autopsy on the dead body of Abdul Shakoor (deceased) was conducted on 26-2-2095 at 5-00 p.m.; that according to the prosecution the occurrence took place at 11-15 p.m. On 25-2-2005 whereas Lady Dr. Kanwal Naeem Bari (P.W.11) who conducted post mortem examination on the dead body of Mst. Nazia Bibi (deceased) at 3-45 p.m. On 26-2-2005 observed that probable time between the death and post mortem examination as 8/10 hours which means that Mst Nazia Bibi was done. To death at around 7/8 a.m. On 26-2-2005 and this single circumstance cast dark shadows of doubts on veracity of the prosecution case; that Dr. Muhammad Akram (P.W.6) who conducted post mortem examination on the dead body of Abdul Shakoor (deceased) stated during the course of cross- examination that no corresponding holes were present on the last worn clothes of the deceased which suggests that Abdul Shakoor (deceased) was not wearing any clothes at the time of his murder and creates serious doubts about veracity of the prosecution case; that the complainant moved an application (Mark-DA) to the SDPO regarding this occurrence wherein he narrated altogether a different story from the one disclosed by him in his statement (Exh.PD); that during the course of cross examination he admitted the factum of filing Mark-DA before the SDPO; that the complainant also filed a private complaint (Exh.DD) wherein his cursory statement (Exh.DE) was recorded on 18-2-2006 and in that private complaint his case was totally different from that mentioned in the F.I.R.; it was the case of the complainant in the F.I.R. (Exh.PD/1) that he along with other P.Ws. Was standing outside the street leading to the mosque whereas while appearing before the learned trial Court as PW.9 he stated that he was present in the bazar near the shop of Abdul Shakoor; that the complainant while appearing before the learned trial court did not state anything as to how Mst. Nazia Bibi (deceased) reached at the place of occurrence; that there was no allegation against Sher Ali, Imran and Muhammad Ihsan alias Shan in the F.I.R., however, while appearing before the learned trial Court, the complainant attributed firing at the neck and chest of Abdul Shakoor (deceased) to Imran alias Manoo, co-accused of the appellants since acquitted; that in the F.I.R. The complainant alleged that he along with his companions identified the assailants in the moonlight, however, while appearing before the learned trial court, he stated that the assailants were identified in the moonlight as well as in the light of electric bulb; that the complainant was duly confronted with the contents of the F.I.R. And the dishonest improvements made by him were brought on the record; that same is case of the other witness of the ocular account i.e. Muhammad Abbas (P.W.8); that while appearing before the learned trial Court, both the witnesses of the ocular account attributed firearm injuries to Imran alias Manoo co-accused of the appellants at the chest and neck of Abdul Shakoor (deceased), said Imran alias Manoo was, however, acquitted by the learned trial Court and his acquittal was not assailed any further by the complainant or the State; that Kalashnikov allegedly recovered at the instance of Zafar Iqbal alias Zafri (appellant) and taken into possession vide recovery memo. (Exh.PC) was sent to the office of Forensic Science Laboratory but report of the Forensic Science Laboratory was in the negative, which was withheld by the prosecution but brought on record by the defence as Exh.DG; that no weapon was recovered from Abdul Sattar alias Laddi (appellant) during the investigation of this case; that motive behind the occurrence was that Mst. Nazia Bibi and Abdul Shakoor had liaison with each other and due to said grudge they were done to death by the appellants' side but while appearing before the learned trial Court the complainant changed the motive and stated that Imran etc. Accused had tried to take the hand of Nazia Bibi and they had also suspected that she had interest in Abdul Shakoor and also Imran etc. Accused had borrowed some money from Abdul Shakoor, which they were not going to pay back; that in the private complaint (Exh.DD) filed by the complainant regarding the same occurrence, motive was altogether different and moreover the complainant stated during the course of cross-examination that three real brothers of Mst. Nazia Bibi were alive at the time of occurrence and had there been illicit liaison between Mst. Nazia Bibi and Abdul Shakoor (deceased) real brothers of Mst. Nazia Bibi would have been the aggrieved persons instead of the appellants' side; that the Police Officer who obtained non-bailable warrants and proclamation against Abdul Sattar alias Laddi (appellant) did not appear before the learned trial court and even Khizer Hayat (P.W.5) who was entrusted with the execution of said warrants and proclamation did not execute the same in accordance with law, therefore, the abscondance of Abdul Sattar alias Laddi (appellant) remained far from being proved; that the alleged abscondance of Abdul Sattar alias Laddi (appellant) was not put to him while recording his statement under section 342, Code of Criminal Procedure, therefore, the alleged abscondance of Abdul Sattar alias Laddi (appellant) could not be used against him for awarding punishment on a capital charge; that co-accused of the appellants namely Imran alias Manoo who was attributed firearm injuries at the chest and neck of Abdul Shakoor (deceased) was acquitted by the learned trial Court along with two others and no appeal against their acquittal was filed either by the complainant or the State and as such their acquittal attained finality; that the prosecution evidence which has been disbelieved to the extent of acquitted co-accused of the appellants could not be believed against the appellants, to award them conviction; that though the principle of falsus in uno falsus in omnibus is not applicable in criminal cases and for the administration of criminal justice the courts are required to sift grain from the chaff but viewing from all angles there is chaff and chaff in this case and not a grain to sift; that the prosecution miserably failed to connect the appellants with the commission of crime and the appellants deserve acquittal.
8. On the other hand, learned Deputy Prosecutor-General assisted by learned counsel for the complainant opposes this appeal on the grounds that both the appellants are nominated in the F.I.R.; that both the witnesses of the ocular account remained consistent so far as role of both the appellants is concerned; that ocular account is supported by the medical evidence and corroborated by the recovery of Kalashnikovs at the instance of both the appellants; that abscondance of Abdul Sattar alias Laddi has been proved through the statement of Khizar Hayat (P.W.5) and even otherwise it is an admitted position that the said appellant remained fugitive from law for more than two years; that case of the appellants is distinguishable from that of their co-accused namely Imran alias Manoo as said Imran alias Manoo was declared innocent during the course of investigation whereas both the appellants were found fully involved; that the prosecution has successfully brought home guilt of both the appellants to the hilt and there is no merit in this appeal; that the appellants committed murder of two innocent persons including a woman by causing repeated firearms injuries, therefore, they do not deserve any leniency even in the quantum of sentence.
9. We have heard learned counsel for the appellants as well as the learned Deputy Prosecutor General for the State assisted by learned counsel for the complainant at a considerable length and have also gone through the record very minutely.
10. This unfortunate incident wherein two persons namely Abdul Shakoor and Mst. Nazia Bibi were allegedly done to death as per F.I.R. (Exh.PD/1) took place at 11-15 p.m. On 25-2-2005 and matter was reported to the Police on 26-5-2005 at 1-30 (midnight) through the statement (Exh.PD) of Manzoor Ahmad complainant (P.W.9) and formal F.I.R. (Exh.PD/1) was registered on the same night at 2-05 a.m. Through rapt No.15.
11. After considering the arguments of the parties and scanning of record with their assistance we have noted the following points:--
(a) Case of the prosecution has been disclosed in para 3 ante. The complainant also filed a private complaint (Exh.DD) wherein his case was as under:- On 25-2-2005 at about 11-15 p.m. He along with his brother, Abdul Shakoor, Abbas and Akram, was sitting in front of his shop. In the meantime, Ihsan alias Shanoo who was friend of his brother namely Abdul Shakoor took his brother Abdul Shakoor with him. After sometime, he along with Abbas and Akram came in the Masjidwali Street where, Ihsan armed with Kalashnikov, was taking towards outside the street. On a suspicion, they also followed them. When they reached near the house of Irshad, Imran son of Riasat armed with Kalashnikov, Zafar Iqbal alias Zafri son of Allah Yar armed with Kalashnikov, Abdul Sattar alias Laddi armed with Kalashnikov, Sher Ali son of Sultan armed with .12 bore gun were already standing there. Mst. Nazia Bibi was also present there. The complainant along with others, identified all of them in the moonlight and in the light of electric bulb. Complainant's brother Abdul Shakoor tried to run away but Ihsan caused butt blow at his leg and he fell down. Then Imran alias Manoo took him near the house of Irshad while dragging him.
Abdul Sattar fired a burst at the head of Abdul. Shakoor. Imran caused indiscriminate firing which landed at the neck and chest of Abdul Shakoor. Then Zafar Iqbal fired a burst which hit at the head of Mst. Nazia. Sher Ali fired with his gun which hit at the right thigh of Mst. Nazia. Thereafter Ihsan alias Shanoo fired with his respective weapon which hit at the left side of chest, hand and shoulder of Mst. Nazia. Then all of them fled away while making aerial firing. The complainant along with the P.Ws. Witnessed the occurrence. He attended both the injured who succumbed to the injuries at the spot. The motive behind the occurrence was that Imran and Zafar Iqbal wanted to develop illicit relations with Mst. Nazia but they failed. Due to this, they murdered his brother Abdul Shakoor and Mst. Nazia mercilessly. At the end of the complaint, the complainant averred that the Police was siding with the accused party and did not register the case correctly rather obtained the thumb impression of the complainant. He had also moved an application to the ASP. The complainant further alleged that the bail application of Shanoo, Manoo and Sher Ali had also been dismissed but the Police was reluctant to arrest the accused due to political influence and illegal gratification.
Comparison of both the versions reveals the following discrepancies:- I. According to F.I.R. (Exh.PD/1), the complainant along with four others namely Abbas, Muhammad Akram son of Sher Muhammad caste Sandhu Jan, Muhammad Akram son of Sher Muhammad and Muhammad Aslam was standing outside the street leading to the mosque whereas according to the private complaint (Exh.DD) the complainant along with three others namely Abdul Shakoor (deceased), Abbas and Muhammad Akram son of Sher Muhammad caste Sandhu Jatt was sitting outside his shop in the bazar.
II. According to the F.I.R., the complainant's side saw that Muhammad Ihsan alias Shan, Abdul Shakoor (deceased) and Mst. Nazia Bibi (deceased) passed by them whereas according to the private complaint Ishan alias Shanoo who was a friend of Abdul Shakoor took Abdul Shakoor along with him. There is no mention of friendship between Abdul Shakoor (deceased) and Ishan alias Shanoo in the F.I.R.
III. As per F.I.R. There is no mention that Ishan alias Shan accused was carrying any weapon at the time of occurrence whereas according to the private complaint Ishan alias Shanoo was armed with a Kalashnikov due to which the complainant party became conscious and they chased Abdul Shakoor as well as Ishan alias Shanoo.
IV. It is the case of the prosecution in the F.I.R. That the assailants were identified in the moonlight and there is no mention of any other source of light whereas as per private complaint the assailants were identified in the moonlight as well as in the light of electric bulb.
V. As per F.I.R., the role of firing was attributed exclusively to both the appellants namely Zafar alias Zafri and Abdul Sattar alias Laddi, however, according to the private complaint besides the appellants butt blow at the leg of Abdul Shakoor (deceased) was attributed to Ihsan alias Shanoo whereas firearm injuries were attributed to Imran alias Manoo, Sher Ali and Ihsan alias Shana co- accused of the appellants.
VI. Motive behind the occurrence as per F.I.R. Was that Mst. Nazia Bibi and Abdul Shakoor had liaison inter se and due to the said grudge both of them were done to death, however, according to the private complaint Imran and Zafri wanted to develop illicit relations with Mst. Nazia but they failed and according to them Abdul Shakoor was a hurdle and due to the said grudge, Mst. Nazia and Abdul Shakoor were done to death.
(b) While appearing before the learned trial Court as P.W.9, the complainant stated that Zafar Iqbal alias Zafri accused made a burst shot with his respective weapon, which hit Nazia on her head while Abdul Sattar alias Laddi made a burst on Abdul Shakoor with his respective weapon hitting his head, while Imran alias Manoo accused fired at the chest and neck of Abdul Shakoor. Same was the stance of both the other eye-witness. Whereas in the F.I.R. (Exh.PD/1) the complainant had stated that on 25-2-2005 at 11-15 p.m. He was present outside the street leading to mosque.
Muhammad Ehsan alias Shan, co-accused of the appellants (since acquitted), along with Abdul Shakoor and Mst. Nazia Bibi passed by them. The complainant and his companions started chasing them and when they reached at the unpaved road near the house of Irshad Ali son of Ali Muhammad caste Juttoo, within their view Zafar Iqbal alias Zafri (appellant) made a burst which hit at the head of Mst. Nazia Bibi whereas Abdul Sattar alias Laddi (appellant) fired a burst which hit Abdul Shakoor at his head. Both the witnesses of the ocular account were confronted with their previous statements and the improvements were brought on the record, which is clear from the following portions of the cross examination conducted on the complainant:- "I had stated before the police at the time of lodging of complaint Exh.P.D that on the fateful night, I along with Muhammad Akram, Muhammad Abbas and Abdul Shakoor were present in the Bazar near the shop of Abdul Shakoor, confronted with Exh.P.D, where shop of Abdul Shakoor is not mentioned, and presence of Abdul Shakoor is also not mentioned. I had stated before the Police that Ihsan accused came there and took away Abdul Shakoor deceased along with him, confronted with Exh.P.D, where it is not mentioned. I had stated before the police that Ihsan accused was armed with Kalashnikov, confronted with Exh.P.D, where it is not so recorded. I had stated before the police that at the time of occurrence accused Zafar Iqbal, Abdul Sattar and Imran were armed with Kalashnikovs while Sher Ali accused was having .12 bore gun with him, confronted with Exh.P.D, where their specific weapons has not stated. I had stated before the police that we witnessed the occurrence in the light of electric bulb, confronted with Exh.P.D, where it is not so mentioned that there is only mention of moonlight. I had stated before the police that Imran accused made a fire, which hit on the chest and neck of Abdul Shakoor deceased, confronted with Exh.P.D, where not so recorded. I had stated before the police that the accused were interested to the hand of Mst. Nazia Bibi deceased, confronted with Exh.P.D, where not so recorded. I also stated before the police that Nazia deceased had interest in Abdul Shakoor deceased and Imran accused, confronted with Exh.P.D, where not so recorded. I had also stated before the police that accused had borrowed some money from deceased Abdul Shakoor which they were not going to pay the same, confronted with Exh.P.D, where not so recorded.
Similarly following portion of the cross-examination conducted on Muhammad Abbas (P.W.8) is also relevant:-- "I stated before the police that Ehsan accused came there where we were present in front of a shop. (Confronted with Exh.DB where it is not so recorded). I stated before the I.O. That accused Ehsan called Abdul Shakoor deceased and took him with him. (Confronted with Exh.DB where not so recorded). I also stated before the I.O. That we chased Abdul Shakoor deceased and Ehsan accused. (Confronted with Exh.DB where it is not so recorded in this manner). The accused party had already committed the murder of Mst. Nazia before our arrival at the place of occurrence. I stated before the I.O. That we saw the accused in the moon night and light of bulb. (Confronted with Ex.DB where light of bulb is not mentioned). I stated before the I.O. That Imran accused made fire which hit on the chest, neck and other parts of body of Abdul Shakoor. (Confronted with Exh.DB where not so recorded.)"
Therefore, it is clear that both the witnesses of the ocular account have made dishonest improvements to strengthen the prosecution case:--
(c) During the course of cross-examination, the complainant admitted that on 26-2-2005 he had filed an application Mark-DA before the SDPO. In the said application, the case of the complainant was different from the F.I.R. And it was alleged (in that application) that Ehsan called Abdul Shakoor from his shop and after covering some distance started beating him. It was further alleged' that Ehsan was armed with a Kalashnikov and on gunpoint took Abdul Shakoor out of the village where three other accused namely Imran alias Manoo, Abdul Sattar and Zafar Iqbal were already present.
Ehsan told his co-accused that he had brought Abdul Shakoor and now they should tackle the situation whereupon Imran alias Manoo fired a burst through his Kalashnikov which hit at different parts of the person of Abdul Shakoor including his head. Mst. Nazia Bibi was already available there along with the assailants and Zafar Iqbal alias Zafri (appellant) had already fired a burst upon her before killing Abdul Shakoor. Abdul Shakoor and Mst. Nazia Bibi succumbed to the injuries at the spot.
(d) Motive in the F.I.R. Was that Mst. Nazia Bibi (deceased) and Abdul Shakoor (deceased) had liaison inter se and due to this grievance, the accused persons, in prosecution of their common object, had committed the murder of Mst. Nazia Bibi and Abdul Shakoor. However, while appearing before the learned trial Court the complainant changed the motive and stated that Imran etc accused had tried to take hand of Nazia Bibi and they had also suspected that she had interest in Abdul Shakoor. Moreover Imran etc. Accused had borrowed some money from Abdul Shakoor, which they were not going to pay back. In the private complaint (Exh.DD) filed by the complainant regarding the same occurrence, motive was altogether different and moreover the complainant stated during the course of cross examination that three real brothers of Mst. Nazia Bibi were alive at the time of occurrence and were major and in the circumstances had there been illicit liaison between Mst.
Nazia Bibi and Abdul Shakoor (deceased) real brothers of Mst. Nazia Bibi would have been the aggrieved persons instead of the appellants and their co-accused as there is no evidence on the record that the appellants or their co-accused had any relationship with Mst. Nazia Bibi (deceased).
(e) During the course of investigation a Kalashnikov (P.3) was allegedly recovered at the instance of Zafar Iqbal alias Zafri (appellant), which was taken into possession vide recovery memo. Exh.PC.
The said Kalashnikov and five bullets (P.5/1-5) were sent to the Forensic Science Laboratory for comparison. The report of Forensic Science Laboratory was, however, withheld by the prosecution and the negative report of Forensic Science Laboratory qua the Kalashnikov allegedly recovered from Zafar Iqbal alias Zafri was brought on the record by the defence as Exh.DG.
(f) So far as Abdul Sattar alias Laddi (appellant) is concerned, no recovery was effected from him during the course of investigation of this case and as such no report of Forensic Science Laboratory is available on the record.
(g) As far as alleged abscondance of Abdul Sattar alias Laddi (appellant) is concerned, though he was arrested in this case after more than two years of the occurrence but the Police Officer who obtained non-bailable warrants and proclamation for appearance of Abdul Sattar alias Laddi (appellant) did not enter into the witness box and moreover the alleged abscondance of Abdul Sattar alias Laddi appellant was not put to him while recording his statement under section 342, Code of Criminal Procedure. It is well settled by now that a piece of evidence not put to the accused during his examination under section 342, Code of Criminal Procedure cannot be used for awarding him punishment.
(h) As per F.I.R. (Exh.PD/1), the occurrence took place at 11-15 p.m. On 25-2-2005. Post mortem examination on the dead body of Mst. Nazia Bibi (deceased) was conducted on 26-5-2005 at 3-45 p.m. Whereas utopsy on the dead body of Abdul Shakoor (deceased) was conducted on 26-2- 2005 at 5-00 p.m. Lady Dr. Kanwal Naeem Bari (P.W.11) who conducted post mortem examination on the dead body of Mst. Nazia Bibi (deceased) at 3-45 p.m. On 26-2-2005 observed that probable time between the death and post mortem examination as 8/10 hours which means that Mst. Nazia Bibi was done to death at around 7/8 a.m. On 26-2-2005. Dr. Muhammad Akram (P.W.6) who conducted post mortem examination on the dead body of Abdul Shakoor (deceased) stated during the course of cross-examination that no corresponding holes were present on the last worn clothes of the deceased which suggests that Abdul Shakoor (deceased) was not wearing any clothes at the time of his murder.
(i) Last but not the least aspect of this case is that Imran alias Manoo co-accused of the appellants was attributed specific firearm injuries at the neck and chest of Abdul Shakoor (deceased) by both the witnesses of the ocular account while appearing before the learned trial court. He was acquitted by the learned trial court while extending him benefit and no appeal against his acquittal was filed either by the complainant or the State as conceded by learned counsel for the complainant and the learned Deputy Prosecutor General, therefore, the prosecution evidence which has been disbelieved to the extent of said Imran alias Manoo cannot be believed against the appellants without there being any independent and strong corroboration, which is very much lacking in this case as discussed in the preceding sub paras.
12. In "Ayub Masih v. The State" (PLD 2002 SC 1048), at page 1056 the Hon'ble Apex Court has been pleased to observe as under:-- "...It is hardly necessary to reiterate that the prosecution is obliged to prove its case against the accused beyond any reasonable doubt and if it fails to do so the accused is entitled to the benefit of doubt as of right. It is also firmly settled that if there is an element of doubt as to the guilt of the accused the benefit of that doubt must be extended to him. The doubt of course must be reasonable and not imaginary or artificial. The rule of benefit of doubt, which is described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". In simple words it means that utmost care should be taken by the Court in convicting an accused. It was held in The State v. Mushtaq Ahmad (PLD 1973 SC 418) that this rule is antithesis of haphazard approach or reaching a fitful decision in a case. It will not be out of place to mention here that this rule occupies a pivotal place in the Islamic Law and is enforced rigorously in view of the saying of the Holy Prophet (p.b.u.h) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent."
We have examined the prosecution case in the light of guidelines of the apex court quoted above and are of the considered view that the prosecution has failed to connect the appellants with the commission of crime beyond any shadow of doubt.
13. For the foregoing reasons, this appeal is allowed. Conviction and sentence awarded to both the appellants by the learned trial Court is set aside. Zafar Iqbal alias Zafri and Abdul Sattar alias Laddi appellants are acquitted of the charge of murder of Abdul Shakoor and Mst. Nazia Bibi (deceased).
They are in jail. They be released forthwith if not required to be detained in any other case.
14. Murder Reference No.42 of 2009 is answered in the NEGATIVE and the sentence of death awarded to Zafar Iqbal alias Zafri and Abdul Sattar alias Laddi (convicts) is NOT CONFIRMED.