' Khalid Mahmood Malik, J.--By way of this judgment we would like to decide above-mentioned Criminal Appeal No, 138-J of 2012 (Faisal alias Amjad vs. The state etc.) and Murder Reference No, 28 of 2012 as both have emanated out of same judgment dated 03.04.2012, passed by learned Sessions Judge Bahawalnagar in case/F.I.R No, 294/2011, dated 28.06.2011, under Sections 302/34, PPC, registered at Police Station Faqirwali, District Bahawalnagar.
2. Through Criminal Appeal No, 138-J of 2012, appellant Faisal alias Amjad has assailed judgment dated 03.04.2012, delivered by learned Sessions Judge, Bahawalnagar, whereby he convicted Faisal alias Amjad, appellant under Section 302(b), PPC and sentenced him as under: ' "Sentenced to "DEATH". He is also directed to pay an amount of Rs, 1,00,000/- to the legal heirs of the deceased as required u/s 544-A, Cr.P.C. Failing which he shall undergo SI for a period of six months."
' Whereas accused Mst. Saima Bibi was acquitted of the charge under Section 302, PPC by extending her the benefit of doubt.
3. Murder Reference No, 28/2012 has been sent by the learned trial Court seeking confirmation of death sentence or otherwise awarded to appellant Faisal alias Amjad.
4. The facts of the case as narrated by Muhammad Boota, complainant (PW-3) in his statement before trial Court and same statement is reproduced for narration of the facts: ' "My father had married two wives. From the first wife I, Talib Hussain deceased and Sughran Bibi our sister are alive. From the second wife, Abdul Majeed has 08 issues including accused Faisal alias Amjad, Mst. Saba, real sister of accused, was married in Chak No, 156/3-L with Lashkar Ali. My deceased brother Talib Hussain had married Mst. Saima Bibi accused present in the Court. My step brothers reside at Raja Jung in district Kasur. Faisal accused developed illicit relation with Mst.
Saima Bibi accused. I stopped him from visiting our house. 15 days prior to this occurrence Faisal accused kidnapped Mst. Saima accused. One day prior to this occurrence, we received information that Faisal accused and Saima accused are living with Lashkar in Chak No, 156/3-L. On 27.06.2011 Talib Hussain deceased and Gulzar PW-left Lahore for Haroon Abad. We reached Haroonabad at about 02.30/3.00 a.m. I took Rickshaw from Haroon Abad Bus stand and went to Chak No, 156/3-L and reached there at about 04.30 a.m. We went to the house of Sana Jat who had relation in our Chak. We informed him about the occurrence and told him that Faisal alias Amjad accused had brought Mst. Saima Bibi accused from our house. About 04 minutes prior to 05.00 a.m. We went to the house of Lashkar Ali alongwith Sana Ullah. As soon as we entered the Ihatta of Lashkar Ali, we saw Faisal and Mst. Saima accused sitting on a cot in the Courtyard. There were two doors of the Ihatta without shatters. My brother Talib was ahead of us. On seeing us Faisal alias Amjad accused tried to run away. My brother chased him. Mst. Saima accused asked Faisal accused that Talib should be shot dead, then Faisal accused fired hitting Talib on upper part of right side of his neck.
My brother fell on the ground infront of my eyes and died at the spot. I got drafted application from the village and was proceeding to the police station on a motor cycle. On the way police was picketing at Railway Crossing Chak No, 21/6-R, I handed over the application to the police.
Application Exh PB bears my thumb impression. One employee of the police went to the police station while the other accompanied me to the spot where the police recorded the statements of witnesses. The dead body was dispatched to the mortuary to T.H.Q Hospital Haroonabad from where I received the dead body of my deceased brother Talib Hussain.
5. After registration of the case and on completion of investigation, report under Section 17a, Cr.P.C.
Was submitted in the trial Court. Learned trial Court, after observing legal formalities provided under Criminal Procedure Code framed the charge against the appellant and his co-accused Mst.
Saima Bibi (since acquitted) under Sections 302/34, PPC; to which they pleaded not guilty and claimed trial. The prosecution evidence was summoned. In support of its version, prosecution examined Amjad Ali 611/HC(PW-1), Muhammad Anser, Patwari Halqa (PW-2), Muhammad Boota, complainant (PW-3), Sana Ullah (PW-4), Dr. Zulfiqar Ali CMO (PW-5), Muhammad Iqbal 722/HC (PW-6), Ali Akbar 521/C (PW-7), Allah Bakhsh 36/C (PW-8), Majid Iqbal S.I 313/B (PW-9), Muhammad Safdar 94/C (PW-10), Abbas Ali SI/ I.O. (PW-11) and Abdul Hameed S.I (PW12). Learned Prosecutor after tendering report of Chemical Examiner (Ex:PJ), report of Serologit (Ex:PK) and report of Forensic Science Laboratory (Ex:PL) closed prosecution evidence. Thereafter appellant/ convict and his co-accused were examined under Section 342, Cr.P.C. And entire evidence produced by the prosecution has put to them in shape of questions, which they termed as incorrect. In reply to a question that why this case against him and why PWs have deposed against him, appellant replied as under: ' "The PWs are inimical towards me and i.v co-accused and relative of the deceased. My father Abdul Majeed had divorced the mother of complainant Muhammad Boota and deceased and had married with my mother. Since then, we are not on speaking terms with each other's. My father had also turned them out of his house and did not give them any subsistence allowance.."
' In reply to a question that have you anything else to say, appellant Faisal alias Amjad replied as under: ' "I am innocent. On the day of occurrence 28.06.2011 I was present at Lahore when my father received information from Lashkar Ali my brother in law in whose house the murder had taken place. My 'father and brothers weht there. Muhammad Boota complainant being inimical towards us had cocked up a false story with the assistance of Sana Ullah, a resident of Chak No, 165/3-L and with the manipulation of the police officials. This was the reason that the post-mortem was delayed for 12 hours because the complainant reached the Chak at about 3.00 p.m. On 28.06.2011. I was present at Lahore at the time of occurrence at the day of occurrence and had nothing to do with the death of Talib Hussain. I was arrested from Lahore and brought to police Station Faqirwali and the police planted the pistol P-5 as well as crime empty against me to strengthen the prosecution case.
' The appellant Faisal alias Amjad did not opt to produce defence evidence or to make statement under Section 340(2), Cr.P.C. While co-accused of appellant Mst. Saima produced Lashkar Ali (DW- 1) in her defence evidence. .
6. Learned counsel for appellant has argued that prosecution has failed' to establish its case beyond any shadow of doubt as the statements of eye-witnesses do not inspire confidence; that there are material contradictions between the testimonies of eye-witnesses on material points which cannot be relied upon in the case of capital punishment, that both the eye-witnesses are residents of other districts i,e, Faisalabad and Bahawalnagar, which are far away from the place of occurrence; that fake recovery of pistol .30 bore (P-5) has been planted against the appellant and has no legal sanctity as the empty was seized from the place of occurrence on 28.06.2011 while appellant was arrested on 30.06.2011 and recovered weapon pistol .30 bore (P-5) sent to the Forensic Science Laboratory with empty (P-1) on 02.08.2011; that motive has also not been established through cogent evidence; that learned trial Court has not appreciated the evidence in its true perspective and harsh plenty of death has been imposed, which is not warranted by law.
Lastly prayed that appeal in hand be accepted and appellant be acquitted of the charge.
7. Conversely, learned Additional Prosecutor General assisted by learned counsel for complainant has maintained that prosecution has succeeded in proving the guilt of appellant through cogent and confidence inspiring evidence in shape of motive, ocular account, medical evidence, recovery of weapon, therefore, appeal deserves dismissal.
8. We have heard the learned counsel for parties, Additional Prosecutor General and with their assistance have scanned the evidence available on record.
9. The prosecution story started from the motive, which was described in the F.I.R (Ex:PB/1) by the complainant Muhammad Boota (PW-3) that his real brother Talib Hussain had married Mst. Saima accused while his step brother Faisal alias Amjad (appellant) developed illicit relations with his "Bhabbi" Saima. On knowing the same, they stopped Faisal alias Amjad from visiting their house.
Fifteen days ago, Saima left the house. He, his brother Talib Hussain and Gulzar Ahmad (given up PW-) searched her. They came to know that Faisal alias Amjad (appellant) and Sima (co- accused) were living with his step sister Saba at Chak No, 156/3-L. He alongwith his brother Talib Hussain and Sana Ullah (PW-4) reached there. On seeing them Saima asked Faisal adias Amjad that Talib had came there who should be shot dead. In consequence, Faisal alias Amjad made a fire with pistol .30 bore which hit on the upper part of right side of his neck, who succumbed to the injuries at the spot. To prove the motive, which was an important aspect of the case, prosecution has relied upon Muhammad Boota, complainant (PW-3) who is eye-witness of the case. In his examination-in-chief, he made improvement by stating that "15 days prior to this occurrence Faisal accused kidnapped Mst. Saima accused. One day prior to this occurrence, they received information that Faisal accused and Saima accused are living with Lashkar in Chak No, 156/3-L".
Said PW-was confronted with his application (Ex:PB), which shows that he had made improvement in his earlier statement with regard to motive of the occurrence. It is now well settled principle laid down by the apex Court of Pakistan that when witness improves version, the improvement statement subsequently made cannot be relied upon as its credibility became doubtful. Reliance is placed upon case titled "Akhtar Ali and others versus The State" (2008 SCM R 6) and "Farman.
Ahmed versus Muhammad Inayat and others" (2007 SCM R 1825) wherein it has been held that: ' " 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."
' Sana Ullah (PW-4), other eye-witness of the occurrence did not utter any word pertaining to the motive part of the occurrence. While Gulzar Ahmad (PW-) has been given up by the prosecution.
Besides, Muhammad Boota, complainant (PW-3) has not stated in his statement the time, date and month when Faisal alias Amjad (appellant) had kidnapped Mst. Saima (co-accused). Even Investigating Officer did not probe the alleged motive during investigation. During arguments it has been brought in our notice that the appeal filed by complainant against acquittal of Mst. Saima (co-accused of appellant) has been dismissed. The prosecution has failed to establish the motive as alleged in the F.I.R against appellant through cogent evidence. While dealing with the proposition, in case titled "Amin Ali and another versus The State" (2011 SCM R 323), apex Court of Pakistan has been pleased to held that when the main and eye-witnesses of the case disbelieved on the question of motive, in such situation, their evidence is required to be carefully examined. The relevant paragraph is reproduced as under: ' To prove the motive, which is an important aspect of the case, the prosecution relied upon P.Ws.
13,14 and 15. They are the same witnesses, who are injured and eye-witnesses of the case, but they are disbelieved on the question of motive. In such a situation, their evidence is required to be carefully examined. Reliance is placed on the case of Noor Muhammad v. State (2010 SCM R 97) and at Page 101 thereof it has been observed as under: ' "Thus, the prosecution has failed to prove the motive. It has been held in the case of Muhammad Sadiq v. Muhammad Sarwar (1979 SCM R 214) that when motive is alleged but not proved then the ocular evidence required to be scrutinized with great caution. In the case of Hakim All v. The State (1971 SCM R 432) it has been held that the prosecution though not called upon to establish motive in every case, yet once it has set up a motive and failed to establish it, the prosecution must suffer consequence and not the defence. In the case of Ameenullah v. State (PLD 1976 SC 629) it has been held that where motive is an important constituent and is found by the Court to be untrue, the Court should be on guard to accept prosecution story."
10. The ocular account has been furnished by Muhammad Boota, complainant (PW-3), who is real brother of deceased and resident of Chak No, 55/Jeem B Baba Bakala, Tehsil & District Faisalabad, which is far away from the place of occurrence. While Sana Ullah (PW-4) is resident of Chak No, 165/3-L, Tehsil Haroon-abad, District Bahawalnagar. According to Muhammad Boota, complainant (PW-3) one day prior to this occurrence, they received information that Faisal accused and Saima accused are living with Lashkar in Chak No, 156/3-L. On 27.06.2011, he, Talib Hussain deceased and Gulzar PWleft Lahore for Haroonabad. They reached Haroonabad at about 02.30/3.00 a.m. He took Rickshaw from Haroonabad Bus stand and went to Chak No, 156/3-L and reached there at about 04.30 a.m. They went to the house of Sana Ullah Jat who had relation in their Chak. They informed him about the occurrence and told him that Faisal alias Amjad accused had brought Mst. Saima Bibi accused from their house. About 04 minutes prior to 05.00 a.m. They went to the house of Lashkar Ali alongwith Sana Ullah. As soon as they entered the Ihatta of Lashkar Ali, they saw Faisal and Mst. Saima accused sitting on a cot in the Courtyard. There were two doors of the Ihatta without shatters. His brother Talib was ahead of them. On seeing them, Faisal alias Amjad accused tried to run away. His brother chased him. Mst. Saima accused asked Faisal accused that Talib should be shot dead, then Faisal accused fired hitting Talib on upper part of right side of his neck.
His brother fell on the ground in front of his eyes and died at the spot. In cross-examination, he stated that they were informed by Sana Ullah PW-, who is having relation in their Chak, that the accused was residing with Lashkar Ali in his. Chak. He contacted them on mobile phone. He conveyed this message on telephone on the 14th day. While Sana Ullah (PW-4) stated in his examination-in-chief that Boota informed him that his brother's wife was brought by his step- brother Faisal and were living with Lashkar Ali. He accompanied them to the dera of Lashkar Ali.
Talib was ahead of them. When they entered in the Ihatta Talib was fired at by Faisal accused on the asking of Mst. Saima accused. In cross-examination, he stated that accused were not known to him. It is also borne out from their evidence that the murder occurrence has taken place in the house of Lashkar Ali. Lashkar Ali, Saba his wife and their children were present at the time of occurrence. Being in-mate of the house, they were most relevant witnesses but best evidence available to the prosecution was withheld and they had neither been produced before the police nor at the trial.
' Lashkar Ali appeared as DW-1 before the learned trial Court on 7.3.2012, who negated the prosecution story.
11. Learned Additional Prosecutor General has vehemently argued that Lashkar Ali (DW-1) has admitted the unnatural death of Talib Hussain, in his house and he has not denied the presence of Muhammad Boota, complainant and other PWs but contention of learned Additional Prosecutor General has no substance as it is now settled that prosecution has to stand on its own legs and could not take any benefit of weaknesses of defence plea.
12. Unfortunate murder occurrence took place on 28.06.2011 at 5.00 a.m (morning) and the F.I.R was registered on the same day at about 6.45 a.m (morning). According to Dr. Zulfiqar Ali CMO (PW-5), probable time in between injuries and death was few minutes and between death and post- mortem was 12 to 16 hours. He also found one entering wound on right side of ramus of right mandible, circular oval in shape with inverted edges (1.5 x 1.5 cm), burning/blackening tattooing etc. Whereas Muhammad Boota, complainant (PW-3) stated in cross-examination that accused Faisal might have run about 6 1/2/7 karams. Accused was at a distance of 14/15 feet from deceased Talib Hussain, when he was fired at. In cross-examination, Dr. Zulfiqar Ali CMO (PW-5) added that Injury No, 1 i,e, entry wound was caused within a distance of three feet which means that distance in between the fire-arm weapon and the body of the deceased Talib Hussain was three feet. It has been held by the apex Court in case of "Barkat Ali versus Muhammad Asif and others" (2007 SCM R 1812) that "Blackening appears on the dead body in case the deceased has received injuries at a distance of 4 feet." Thus on this aspect of the case, the ocular testimony is not supported or corroborated by the medical evidence. The considerable delay in conducting postmortem examination i,e, more than 12 hours suggests that the same was done in order to manage the eye-witnesses to establish strong version/story of prosecution. In this regard reliance is placed on case titled "Irshad Ahmed versus The State" (2011 SCM R 1190), wherein apex Court of Pakistan has been pleased to observe as under: ' " 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 dead body conducted."
' There is yet another factor available on the record which detracts from the statement of Dr. Zulfiqar Ali (PW-5) and inquest report prepared by the Investigating Officer Abbas Ali S.I (PW-11) that Amanat Ali alias Nasir and Mohsin alias Bagha son of Abdul Majeed (brothers of complainant and Talib Hussain deceased), residents of district Kasur had identified the dead body of Talib Hussain, deceased and they were also witnesses in the inquest report (Ex:PE). Muhammad Boota, complainant (PW-3) stated in cross-examination that Amanat Ali and Mohsin his brothers were not present in Chak No, 156/3-L with him and they had not reached the village while Muhammad Abbas S.I/ Investigating Officer (PW-11) stated in cross-examination that Amanat Ali and Mohsin Ali were present at the spot when he prepared the inquest report. He has not interrogated them as to how they were present at the scene of occurrence at that time. Said PWs have been given up by the prosecution being won over by the accused persons. In these peculiar circumstances, inference can be drawn against the prosecution that if Amanat Ali and Mohsin Ali PWs including inmates of Lashkar Ali (DW-1), wife and children were produced, they would have not supported the prosecution version. Further-more, it was the prosecution case that Talib Hussain, deceased was ahead of Muhammad Boota, complainant and Sana Ullah (eye-witnesses) when he was fired by Faisal alias Amjad accused on him while as per statement of Abbas Ali, S.I/Investigating Officer (PW-11), the deceased was neither wearing any shirt nor he was having any shirt with him. On query prosecution has failed to furnish reasonable explanation in this reward.
13. According to the prosecution case, Faisal alias Amjad, appellant was arrested on 30.06.2011 at Adda Mubarkabad. On his personal search, .30-bore pistol was recovered from his possession, which was taken into possession by the Investigating Officer vide recovery memo Ex:PF. The prosecution has examined Muhammad Iqbal 722/110 (PW-6) and Abbas Ali S.I/Investigating Officer (PW-11). No private witness has been cited in-spite of the fact that the alleged recovery was effected at populated aria i,e, Adda Mubark Abad. Even the empty of pistol .30 bore (P-1) was seized from the place of occurrence on 28.06.2011 while the alleged weapon pistol .30 bore (P5) was recovered on 30.06.2011. The empty and pistol was sent simultaneously to Forensic Science Laboratory on 02.08.2011 after lapse of more than one month of the occurrence. All these considerations render that the alleged recovery is not free of doubt. Reliance can be placed upon case titled "Ghulam Akbar and another versus The State" (2008 SCM R 1064).
14. The prosecution primarily is duty bound to establish the guilt against the accused beyond any shadow of reasonable doubt by producing trust worthy and reliable evidence having intrinsic worth to enable the Court to draw the conclusion that prosecution has succeeded in establishing the accusation against the accused persons which elements are missing in prosecution case. It has been held by the Hon'ble Supreme Court of Pakistan 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. Reliance can also be placed upon on case titled as "Muhammad Akram versus The State" (2009 SCM R 230) and "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 against appellants beyond any shadow of doubt. Therefore, we accept Criminal Appeal No, 138-J of 2012 and set-aside conviction and sentence of appellant Faisal alias Amjad, awarded by learned trial Court vide impugned judgment dated 3.4.2012 and acquit him of the charge by extending him the benefit of doubt. Appellant is directed to be released forthwith, if not required in any other case. The death sentence awarded to the appellant Faisal alias Amiad is not confirmed and Murder Reference is answered in negative.