AALIA NEELUM, J.- Farhat Shaheen son of Jafar Ali, Caste Baloch, resident of Mauza Shahoo Baloch, Tehsil & District, Pakpattan Shareef along with Mumtaz Ahmad son of Muhammad Ameer, Caste Kharal, resident of near water works No.1, Pakpattan Shareef, appellants were involved in a private complaint, registered under Sections 302, 201, 34, P.P.C., Police Station, Bhera, District Sargodha as well as State case F.I.R. No.451-2010 dated 08.12.2010, offence under Sections 302, 34 P.P.C., registered at Police Station, Bhera, District Sargodha and were tried by the learned Additional Sessions Judge, Bhalwal, District Sargodha. The learned trial court seized with the matter in terms of judgment dated 11.04.2016 and convicted the appellants-Farhat Shaheen and Mumtaz Ahmad under Section 302 (b)/34 P.P.C., and each of them was sentenced to undergo Life Imprisonment along with fine of Rs.1,00,000/- each as compensation to the legal heirs of the deceased, Muhammad Shareef and in case of default thereof, each of them would suffer simple imprisonment for six months. The appellants were also convicted under Section 201/34 P.P.C., and each of them was sentenced to five years Rigorous Imprisonment , along with fine of Rs.20,000/-each and in case of default thereof, each of them would undergo simple imprisonment for one month. All the sentences shall run concurrently . The benefit of Section 382 (B) of Cr.P.C., was also extended in favour of the appellants.
2. Being aggrieved by the judgment of the learned trial court, the appellants-Farhat Shaheen and Mumtaz Ahmad have assailed their conviction and sentence by way of filing instant criminal appeal whereas the petitioner- complainant, Ghulam Abbas being dis-satisfied with the judgment dated 11.04.2016, preferred a Criminal Revision No.610 of 2016 for enhancement of sentence of the appellants from life imprisonment to death sentence as well as compensation amounting to Rs.3,00,000/-each. As both the matters are arising out of one and the same judgment, therefore, they are being disposed of through a single judgment.
3. The prosecution story as contained in the private complaint (Ex.PB) filed by Ghulam Abbas (PW-1) is that on 07.12.2010, at about 06:50 p.m., Muhammad Shareef, Advocate (since dead) along with accused-Farhat Shaheen and Mumtaz Ahmad after taking meal from his (PW-1) house situated at Chak Shahzad, Islamabad proceeded to Pakpattan Shareef while riding on a car bearing registration No.9844/LHR, silver colour, Model 1987, who had come at Islamabad in order to collect a cheque having value of Rs.11,00,000/- for the District Bar, Pakpattan Shareef from the Federal Minister Dr. Babar Awan and at the time of their departure, Muhammad Shareef (since dead) was sitting on the front seat whereas the accused-Farhat Shaheen was driving the car while the accused-Mumtaz was sitting on the rear seat of the above stated car. At the time of departure of the appellants and the deceased, Muhammad Shareef, the complainant (PW-1) along with Muhammad Afzal (PW-2), Mian Muhammad Ashraf (given up PW) and Muhammad Akram Shad (given up PW) were already present there, as the complainant (PW-1) had come to see his (PW-1) ailing bhabhi namely Dr. Samina. After the departure of the accused persons and Muhammad Shareef (since dead), when he (PW-1) remained unable to contact Muhammad Shareef (since dead), he (PW-1) telephonically contacted the accused persons at 09:30 p.m., and the accused persons informed him (PW-1) that after reaching at the bridge of river Jhelum on the motorway, they (accused persons) were not in contact with Muhammad Shareef (since dead). The accused persons on their way from Islamabad to Lahore have murdered his (PW-1) brother-in-law, Muhammad Shareef (since dead) by way of strangulation and throwing his dead body in the river Jhelum from the bridge of Motorway whereupon he (PW-1) got registered a criminal case No.451-2010 dated 08.12.2010 (Ex.PA); that on 27.02.2011, at about 11:00 a.m., the accused-Mumtaz Ahmad along with Ihsanullah Shakir (PW-5) came to the office of Naveed Akhter (PW-6) situated at Ghala Mandi, Pakpattan and at that time, Muhammad Ashfaq (given up PW) was also present there whereas the accused-Mumtaz Ahmad told to Naveed Akhter etc that on 07.12.2010, he along with co-accused, Farhat Shaheen and Muhammad Shareef (since dead) were coming back from Islamabad Motorway to Pakpattan on a car bearing registration No.9844/LH R, at 09:30 p.m., they (accused persons) restrained Muhammad Shareef (since dead) from contesting the election of District Bar Association, Pakpattan for the year 2011 but on the refusal of Muhammad Shareef (since dead), hot words and abusive language were exchanged among the accused persons and Muhammad Shareef (since dead) whereupon the accused-Farhat Shaheen stopped the car at Lilla Interchange in the lay of parking and they (accused persons) committed murde r of Muhammad Shareef (since dead) by way of strangulation and throwing the dead body of Muhammad Shareef (since dead) in the river Jhelum from the bridge of Motorway and in order to conceal their crime, the accused persons made a concocted story regarding disappearance of Muhammad Shareef (since dead) and after having result of medical board qua death of Muhammad Shareef (since dead), local police of police station, Bhera was going to arrest them. The accused persons also confessed their guilt and requested that they (accused persons) should have been forgiven, as they (accused persons) had brought his (PW-1) relative with them and on the same day, at about 12 noon, Naveed Akhter and Ashfaq (given up PW) informed him (PW-1) about the confession of the accused-Mumtaz Ahmad. On 27.02.201 1 at about 4:00 p.m., when he (PW-1) was present at his residence, the accused-Farhat Shaheen along with Bashir Ahmad (PW-3), Maqbool Ahmad (PW-4) and Muhammad Riaz (given up PW) came there and told him (PW-1) that on 07.12.2010 at about 09:30 p.m., he (accused-Farhat Shaheen) and the accused-Mumtaz Ahmad while riding on a car bearing registration No.9844/LHR were proceeding on the Motorway from Islamabad to Pakpattan along with Muhammad Shareef (since dead), restrained Muhammad Shareef (since dead) from contesting the election of District Bar Pakpattan and on the refusal of Muhammad Shareef (since dead), hot words were exchanged among them, whereupon the accused-Farhat Shaheen stopped the vehicle at lay by parking at Motorway Lilla Interchange and they (accused persons) murdered Muhammad Shareef (since dead) by strangulation and also throwing the dead body of Muhammad Shareef in the river Jhelum from Motorway bridge and concocted a fictitious story in order to conceal their guilt. The accused-Farhat Shaheen also stated that the local police of police station, Bhera was going to arrest them (accused persons), so he (accused-Farhat Shaheen) had brought his (PW 1) close friends, as he was complainant as well as brother-in-law (Behnoi) of Muhammad Shareef (since dead), therefore, he (accused-Farhat Shaheen) should have been pardoned from the legal heirs of Muhammad Shareef (since dead) whereupon the complainant (PW-1) stated that he (PW-1) would reply him (accused-Farhat Shaheen) after making contact with the legal heirs of Muhammad Shareef (since dead). The local police neither investigated the matter on merits nor collected important piece of evidence in order to favour the accused, even the statements of the PWs qua extra judicial confession were not recorded, as Ghulam Rasool- Investigating Of ficer and Sajjad Ahmad, S.H.O., are in league with the accused persons.
4. The motive behind the occurrence was that Muhammad Shareef (since dead) remained President of the District Bar Association, Pakpattan and was very popular in the local as well as in the politics of the Bar and upon the insistence of the lawyers of Bar Association, Pakpattan, Muhammad Shareef (since dead) was a candidate for the seat of President District Bar Association, Pakpattan for the year 2011 whereas the accused persons were rival candidates and right hands of Liaqat Ali Baloch, the other rival candidate against Muhammad Shareef (since dead).
The accused-Farhat Shaheen is relative of Liaqat Ali Baloch and both accused persons are also close friends, therefore, the accused persons with their pre-planned common intention, committed murder of Muhammad Shareef (since dead).
5. The F.I.R., (Ex.P A) was chalked out by Muhammad Jehangir , A.S.I. (CW-5) on the complaint (Ex.DA) of the complainant (PW-1). After registration of F.I.R. (Ex.P A), investigation was entrusted to Ghulam Rasool/Investigating Officer (CW-7), who reached at the spot and took into possession a car bearing registration No.9844/LHR (C-1) along with its registration book (C-2) and driving license (C-3) of the accused-Farhat Shaheen vide recovery memo (Ex.PJ). The Investigating Officer (CW-7) also took into possession a pistol 30-bore (P-4), two loaded magazines having eleven bullets (P 5/1-1 1) along with its arm license No.1517 in the name of the accused-Farhat Shaheen from the dash board of car No.9844/LHR through recovery memo (Ex.PK), a bag from the diggi of car from which, a white colour shirt (P-6), shalwar (P 7), a cotton suit, Shalwar (P-8), Qameez (P-9), two pairs of socks (P-10/1-2) along with a white colour bunyan (P-11), which were taken into possession vide recovery memo (Ex.PL) by him (CW-7). The cheque bearing No.2904629 having value of Rs.11,00,000/- was also taken into possession by the Investigating Officer (CW-7) vide recovery memo (Ex.PM). The Investigating Officer (CW-7) made hectic efforts to search the dead body of the deceased, Muhammad Shareef but in vain. On 20.12 .2010, he (CW-7) after receiving information qua presence of dead body of the deceased in the bed of river Jhelum near Chak Mubarik, reached at the spot and found the dead body of the deceased, Muhammad Shareef lying in the river bed, near flowing of water at wet place and on personal search of the body of the deceased, Muhammad Shareef, from right lower pocket of the shirt, the Investigating Officer (CW-7) took into possession Rs.38,000/- (P-13/1-76) each note consists of Rs.500/-(P-1-76) along with identity card (P-14), national identity card (P-15) vide recovery memo (Ex.PN).
Thereafter the Investigating Officer (CW-7) prepared injury statement (Ex.PD), inquest report (Ex.PE) and entrusted the dead body of the deceased, Muhammad Shareef to R.H.C Bhera for autopsy under the escort of Altaf 1771/C (PW-8). Thereafter , the Investigating Officer (CW-7) prepared un-scaled site plan of the place of recovery of dead body (Ex.CW -7/A), site plan of the place of recovery (Ex.CW -7/B) and submitted an application (Ex.CW -7/C) before the learned duty Magistrate for constitution of medical board for the postmortem of the deceased, Muhammad Shareef whereupon learned duty Magistrate passed an order (Ex.CW -7/C-1) and accordingly the medical board was constituted and as a result whereof, the dead body of the deceased, Muhammad Shareef was shifted to the District Headquarter Hospital, Sargodha under the escort of Altaf 1771/C (PW-8). After postmortem examination of the dead body of Muhammad Shareef, Altaf 1771/C (PW-8) produced last worn clothes of the deceased, Muhammad Shareef i.e. Qameez (P-1), Shalwar (P-2) and Jacket (P-3) before (CW-7), who took the same into possession vide recovery memo (Ex.PF).
Thereafter , Altaf 1771/C (PW-8) produced two sealed envelops along with eight sealed jars sent by the medical board, before the Investigating Officer (CW-) and the same were taken into possession by him (CW-7) vide recovery memo (Ex.PG). Thereafter , on 13.01.201 1, the Investigating Officer (CW-7) took into possession water of river Jhelum in a bottle vide recovery memo (Ex.PH) for chemical analysis. After receiving the report of the Standing Medical Board regarding cause of death, (CW 7) added offence under Section 302 P.P.C., and on 28.02.201 1, the Investigating Officer (CW-7) formally arrested the accused persons and on 14.03.201 1 the accused persons were sent to judicial lockup. On 18.01.201 1, Naseer Ahmad, Patwari (CW-6) took rough notes on the direction of the Investigating Officer (CW-7) prepared scaled site plans (Ex.CW -6/A and Ex.CW 6/B) of the place of recovery of dead body whereas on 14.03.201 1, Sarfraz Ahmad, Patwari (CW-3) on the pointing of the Investigating Officer (CW-7), prepared site plans (Ex.C W 3/A and Ex.CW -3/B) of the place of occurrence. On 30.03.201 1, the Investigating Officer (CW-7) prepared challan under Section 173 of Cr.P.C., through S.H.O by placing names of the accused persons in column No.2 and sent the same to the court of competent jurisdiction. The complainant (PW-1) being dissatisfied with the investigation, filed a private complaint on 07.10.201 1 against the accused persons before the learned Judicial/Illaqa Magistrate, Police Station, Bhera, Tehsil, Bhalwal District Sargodha. The learned Illaqa Magistrate sent the same to the learned Sessions Judge, Sargodha for its entrustment to the court of competent jurisdiction. The learned trial court after hearing preliminary arguments, summoned the accused persons to face their trial. After appearance of the accused persons, they were formally charge sheeted by the learned trial court in terms of order dated 10.03.2012, to which they pleaded not guilty and claimed trial.
6. The prosecution in order to substantiate its case produced as many as ten (10) prosecution witnesses during the course of trial in the State case whereas after filing of private complaint (Ex.PB), the proceedings in the State case were stopped and rest of the witnesses cited in the calendar of the witnesses were examined as Court witnesses i.e. (CW-1 to CW 7). The evidence of last seen in this case consists of the statements of Ghulam Abbas (PW-1) and Muhammad Afzal (PW-2), whereas the evidence of extra judicial confession consists upon the statements of Bashir Ahmad (PW-3), Maqbool Ahmad (PW-4), Ihsanullah Shakir (PW-5) and Naveed Akhter (PW-6).
7. Dr. Mumtaz Fateh ullah Khan Niazi appeared as (PW-7) and deposed that we the Standing Medical Board comprising of Dr. Captain Ahmad Naeem Sheikh, Dr. Irfan Farid, Dr. Iqbal Sami, Dr. Abdur Rehman along with him (PW-7) on 20.12.2010 at 03:30 a.m., conducted postmortem examination on the body of the deceased, Muhammad Shareef and found the following injury on his person.
1. Contusion mark on the right side of neck extended from angle of mandible right side and from front of right ear to lower part of left neck.
2. Contusion mark on the left side of face extended from left ear to left cheek.
3. Contusion mark on outer side of upper middle and lower parts of right arm.
4. There was insect and animal bite on left arm and forearm along with tendons exposed and bones of left elbow joint lying apart.
Remarks of Standing Medical Board.
Samples of viscera in eight jars were taken and sent to Bacteriologist and chemical examiner , Lahore. Opinion about the death would be given after the receipt of reports from both corner .
After conducting the postmortem examination, the Standing Medical Board rendered the following opinion:- Final opinion.
After going through the findings in initial postmortem report and report of Bacteriologist and Chemical Examiner, Lahore, the joint opinion of board was that findings are consistent with the death due to sustain pressure on the carotid sinusus on both side of the neck by injuries No.1 & 2 which resulted to vasovagal stimulation leading to neurogenic shock, cardiopulmonary arrest and death. These injuries No.1 & 2 were ante-mortem and sufficient enough to cause death in ordinary course of nature and death was sudden.
Postmortem report is Ex.PC and sketch of injuries Ex.PC/1 and Ex.PC/2. After receipt of report of histopathologist Ex.PC/3, final opinion of Standing Medical Board is Ex.PC/4, which bear signatures of all the members of Standing Medical Board. Report of Chemical Examiner is Ex.PC/5.
8. The PWs, Muhammad Ashra f Madni, Photographer , Dr.Hafiz Abdur Rehman, Dr. Iqbal Sami, Dr. Irfan Fareed, Mian Muhammad Ashraf, Muhammad Akram, Muhammad Ashfaq, Muhammad Riaz, Farzand Ali 1168/C, Rajab Ali and Dr. Ahmad Naeem Sheikh were given up by the learned consel for the complainant being un- necessary on different dates i.e. 25.04.2015, 04.11.2015, 06.01.2016 and on 02.03.2016 respectively and closed the prosecution evidence on 02.03.2016.
9. After closure of prosecution evidence, the appellants were examined under Section 342 of Cr.P.C, wherein they opted not to appear as their own witness in terms of Section 340 (2) Cr.P.C. in disproof of allegations leveled against them in the prosecution evidence but also refused to adduce evidence in their defence. While replying to the question that why this case is against them and why the PWs deposed against them, the appellants- Farhat Shaheen and Mumtaz Ahmad made following depositions:- "The PWs deposed falsely and instant false case has been registered against them due to personal grudge and ulterior motive."
10. Learned trial court after evaluating the evidence available on record found version of the prosecution proved beyond any shadow of reasonable doubt against the appellants, resulting into their conviction in the afore- stated terms.
11. I have heard the arguments advanced by the learned counsel for the parties and have minutely perused the record available on the file.
12. The entire edifice of the prosecution is rested on circumstantial pieces of evidence and two sets of extra judicial confession. What the prosecution is obliged to prove in a case which is based on circumstantial evidence, it is necessary that the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances should be of a conclusive nature and tendency and there must be a chain of evidence to complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability , the act must have done by the accused. In the case in hand, on 07-12 2010 the accused-appellants Farhat Shaheen (General Secretary , Bar Association District, Pakpattan) and Mumtaz Ahmad (Vice President, Bar Association District, Pakpattan) along with Muhammad Shareef (President Bar Association District Pakpattan) leave for Pakpattan at 06:50 p.m. in a car having registration No.LHR-9844 after receiving a cheque amounting to Rs.11,00,000/- (P-12) on 07-12-2010 and allegedly the accused-appellants Farhat Shaheen and Mumtaz Ahmad in the area of Bhera in furtherance of common intention strangulated Muhammad Shareef (since deceased), President Bar Association District Pakpattan, around 9:30 p.m.
In such cases the Court must carefully scan the evidence and determine the circumstances which alone can justify a conviction that there is a clear motive for the accused- appellants to strangulate to the deceased, and, that the deceased died due to strangulation said to have been committed by the accused.
13. This Court have to consider as to whether in the facts and in the circumstances of the present case, the prosecution has been able to bring home guilt against the accused appellants that they strangulated Muhammad Shareef, thereby causing murder . The prosecution, to prove its case, has relied upon five circumstances, namely ,
(i) the accused persons were last seen in the company of the deceased (ii) extra judicial confession made by the accused-Farhat Shaheen before Ghulam Abbas (PW-1), Bashir Ahmad (PW-3) and Maqbool Ahmad (PW-4) and the accused-Mumtaz Ahmad made alleged confession before Ehsan Ullah (PW-5) and Naveed Akhtar (PW-6), (iii) medical evidence, (iv) the accused persons had motive to get rid of Muhammad Shareef and (v) the conduct of the accused-appellants after the incident.
14. Thus, on scanning the evidence available on the record, This court finds that all these witnesses i.e. the complainant-Ghulam Abbas (PW-1),Muhammad Afzal (PW-2) Ghulam Rasool, S.I. (presently retired) (CW-7) as well as the accused-appellants are consistent on the point that on 07-12 2010 Farhat Shaheen and Mumtaz Ahmad along with Muhammad Shareef-the deceased started their journey from Islamaba d to Pakpattan in vehicle LHR- 9844, after taking meal from the house of Ghulam Abbas (PW-1) and at 8:15 pm they entered Motorway from Islamabad Toll plaza and on reaching bridge Jhelum river at Motorway Farhat Shaheen and Mumtaz Ahmad lost their contact with Muhammad Shareef, advocate-the deceased. The first circumstance that accused were in the company of deceased during relevant time till the later died of alleged strangulation is admitted one. But, this circumstance being proved against the accused alone is not sufficient to conclude that these are the accused- appellants who are the perpetrator of the crime in question. All circumstances must be so complete that they should point only towards the guilt of the accused-appellants.
15. For establishing charge against the accused-appellants, the prosecution produced two sets of witnesses before whom extra judicial confession was made by the accused-Farhat Shaheen are Ghulam Abbas (PW-1), Bashir Ahmad (PW-3) and Maqbool Ahmad (PW-4) and the accused-Mumtaz Ahmad made alleged confession before Ehsan Ullah (PW-5) and Naveed Akhtar (PW-6). To examine the guilt of the accused-appellants, this Court deems it proper to re-appreciate the evidence of these two set of witnesses before whom the accused-appellants are alleged to have confessed. Admittedly , there is no direct evidence available on record so as to attribute the commission of crime to the appellants except extra judicial confession. It was an un-witnessed occurrence. Having dealt with the basic of the legal issue as regard evidentiary value of extra judicial confession and adverting to the factual matrix of the matter at this junctu re, the prosecution case as made is to the following effect that sister of Muhammad Shareef-the deceased is wife of the complainant-Ghulam Abbas (PW-1); Muhammad Afzal (PW-2) is real brother of Muhammad Shareef-the deceased; Bashir Ahmad (PW-3) had his land adjacent to the land of Muhammad Shareef-the deceased and he had friendly relations with Muhammad Shareef-the deceased; Maqbool Ahmad (PW-4) has stated that as a sister of Ch.Shareef was married with Ghulam Abbas complainant so being her co-villagers he had friendly relation with Ghulam Abbas complainant, Whereas Naveed Akhtar (PW-6) is brother-in- law (Behnoi) of Muhammad Shareef-the deceased. The evidence disclosed that on 27-02-201 1 at about 4:00 p.m.
Farhat Shaheen accused along with Bashir Ahmad (PW-3), Maqbool Ahmad (PW-4) and Muhammad Riaz (given up being unnecessary) went to Islamaba d in the house of the complainant-Ghulam Abbas (PW-1) in order to get pardon and Farhat Shaheen accused confessed his guilt. The complainant Ghulam Abbas (PW-1) deposed during his examination-in-chief regarding the extra judicial confession allegedly made by Farhat Shaheen accused that, "---Then on 27.02.2011 at 4:00 p.m., when I alone was present in my house, when Farhat Shaheen accused present in the court along with Bashir Ahmad son of Abdul Nabi, Maqbool Hussain son of Nazar Hussain and Muhamamd Riaz son of Nazir Hussain came there and told me that on 07.12.2010 at about 9:30 p.m., he and Mumtaz his co-accused when into vehicle No.LHR-9844 were proceedings on motorway from Islamabad to Pakpattan along with Muhammad Shareef deceased, advocate, he and Mumtaz accused asked Muhammad Shareef deceased not to contest election of District Bar Association, Pakpattan as President of year 2011 who refused to adhere to their demand upon which they insisted as a result of which, Muhammad Shareef, deceased advocate insulted them and there was an exchange of abuses upon which Farhat Shaheen-accused told that he stopped vehicle at lay by parking at motorway Lilla Interchange and he along with Mumtaz his co-accused killed Ch. Muhammad Shareef by pressing his throat and threw the dead body of Muhammad Shareef deceased in river Jhelum from bridge at Jhelum river situated at motorway and concocted a fictitious story of Muhammad Shareef deceased for concealing their crime. Farhat Shaheen accused further told that great cruelty had been committed by them and as the police of police station, Bhera was out to arrest him and his co- accused, hence he had brought my close friends to me and as I was the complainant and brother in law (Behnoi) of Shareef deceased, hence, I should get them pardoned from the legal heirs of Shareef deceased upon which I told them I would reply them after talking to the legal heirs of Shareef deceased---. "
16. Bashir Ahmed (PW-3) and Maqbool Ahmed (PW-4) in corroboration of Ghulam Abbas (PW-1) deposed in the similar lines. On the other hand Mumtaz Ahmad accused allegedly made extra judicial confession on 27-02-201 1 at about 11:00 a.m. in the office of Naveed Akhtar (PW-6) at grain market Pakpattan in presence of Ehsan Ullan (PW- 5) and Muhammad Ashfaq (given up being unnecessary). Both witnesses Naveed Akhtar (PW-6) and Ehsan Ullan (PW-5) of extra judicial confession deposed the words spoken by Mumtaz Ahmad accused are as following, "Mumtaz accused confessed before me, Naveed Akhter and Ashfaq PWs that on 07.12.2010, at about 09:30 p.m., he along with Farhat Shaheen and Muhammad Shareef since deceased were returning from Islamabad on a car bearing No.9844/L HR via motorway to Pakpattan. Accu sed Farhat Shaheen forbade Muhammad Shareef to contest the election of President Bar Association Pakpattan for the year 2011.
Muhammad Shareef refused to accept this request. Mumtaz and Farhat Shaheen insisted in response to that, Muhammad Shareef insulted Mumtaz and Farhat Shaheen. Mumtaz accused further confessed that in consequence of that hot words and abuses were exchanged between us and Muhammad Shareef deceased. Farhat Shaheen accused stopped the car in lay by parking near Lilla Interchange. Mumtaz accused said that he along with Farhat Shaheen pressed the throat of Muhammad Shareef from both sides and murdered him and we had thrown his dead body in the river Jhelum from motorway bridge and they had made dramma of disappearance of Muhammad Shareef in order to save their skin from the said murder. Mumtaz accused said that now the medico legal report of the board has been received in which it is proved that Muhammad Shareef was murdered by throttling and the police at Police Station, Bhera is going to arrest him and Farhat Shaheen in this case. For this, I have brought myself before you because Naveed PW is Hamzulf and Ashfaq PW is paternal nephew of Muhammad Shareef deceased. "
17. Apart from the complainant-Ghulam Abbas (PW-1) there were four witnesses namely Bashir Ahmed (PW-3) and Maqbool Ahmed (PW-4), Ehsan Ullan (PW-5) and Naveed Akhtar (PW-6) who were examined by the prosecution in support of its case extra judicial confession allegedly made by the accused-appel lants. However , the prosecution witnesses i.e. PW-1, PW-3 to PW-6 deposed during cross examination that their statements under section 161 of Cr.P.C were not recorded by the Investigating Officer. The complainant-Ghulam Abbas (PW-1) deposed during cross-examination that, "Farhat Shaheen and Mumtaz accused had relationship with higher police officers, administration, and with Government Designatories on account of which the police of Police Station, Bhera and Ghulam Rasool, Investigating Officer, Sajjad Ahmad, S.H.O., for illegal gain did not include the statements of witnesses qua extra judicial confession during investigation according to their stance---."
During cross examination he (PW-1) deposed that, "The Police did not record my statement regarding the episode of extra judicial confession dated 27-02-2011 of both the accused." Bashir Ahmed (PW-3) deposed during examination-in-chief that, "I along with above said PWs went to P.S. Bhera in order to get our statements record during the investigation but they refused to record our statement." Maqbool Ahmed (PW-4) deposed in similar lines during examination-in-chief. Whereas during cross-examination Bashir Ahmed (PW-3) deposed that, "I had not complained against the I.O. before his higher authorities that the I.O. was not recording my statement regarding this occurrence. I had also not submitted any application u/s 22- A/22-B Cr.PC. for recording of my statement u/s 161 Cr.P.C. by the I.O. I do not remember whether my statement in the court was recorded after one month, two months, three months or after one year of this incident." Maqbool Ahmed (PW-4) deposed during cross-examination that, "I had not complained against the I.O. before his higher authorities that the I.O. was not recording my statement regarding this occurrence.
I had also not submitted any application u/s 22-A/22-B Cr.PC. for recording of my statement u/s 161 Cr.P.C. by the I.O. My statement in the court was recorded for the first time after 6/7 months of the occurrence." On the other hand witnesses of second set Ehsan Ullan (PW-5) and Naveed Akhtar (PW-6) have not stated a single word that they ever join the investigation in their examination-in-chief. However during cross- examination upon Ehsan Ullan (PW-5) learned defence counsel requests for supply of statement of the witness if recorded during investigation. Whereupon learned ADPP Mr. Muhammad Bilal after going through the police file had stated that the statement of the witness did not exist in the record, hence could not be provided. Whereas Naveed Akhtar (PW-6) deposed during cross-examination that, "We had been searching for the deceased in River Jhelum where the occurrence had taken place. We stayed for one day at Bhera then proceeded to Islamabad from where I went to Pakpattan. I had come to Bhalwal Courts for recording of my statement after about five months of the occurrence." From the above deposition of Naveed Akhtar (PW-6), it is crystal clear that Naveed Akhtar (PW-6) remained in Pakpattan and he (PW-6) never joined the investigation. The evidence goes on the record that the complainant-Ghulam Abbas (PW-1) in the private complaint (Ex.PB) filed on 12-10-201 1, with delay of about one year and five days, for the first time took plea in Para No. 4 which reads as under , {{URDU TEXT}}
18. From the above deposition of the witnesses, it also reveals that the witnesses had neither mentioned the date when they informed to the legal heirs of the deceased nor they mentioned that when they approached to the Investigating Officer and the Investigating Officer refused to record the statements of the witnesses. Ehsan Ullan (PW-5) and Naveed Akhtar (PW-6) had not deposed that when they informed about the alleged extra judicial confession made by Mumtaz Ahmad to the complainant-Ghulam Abbas (PW-1). Besides from the record, it reveals that the complainant-Ghulam Abbas (PW-1) along with Muhammad Afzal (PW-2) and others joined the investigation and they were present at Police Station Bhera on 27-02-2011, the alleged date when the accused- appellants had allegedly confessed their guilt at 11:00 a.m and 04:00 p.m. before the witnesses. This fact came on the record through deposition of Ghulam Rasool, S.I (presently retired) (CW-7), the Investigating Officer, who deposed during cross-examination that, "On 27-02-2011, the complainant Ghulam Abbas, Muhammad Afzal Pw and Muhammad Umaish son of Muhammad Shareef deceased joined investigation before me and I confronted them with the plea of accused persons and they categorically stated before me that if the accused are innocent according to the investigation, they may be declared innocent and further stated that they would have no objection on innocence of accused persons, if declared so by the investigating agency." Therefore, the testimony of the Investigating Officer (CW-7) does not corroborate the testimony of the witnesses of extra judicial confession regarding date of alleged extra judicial confession. Therefore, the testimony of these witneses itself becomes doubtful. In my view the evidence of extra judicial confession cannot be relied upon without corroborative by other authentic evidence. If the above pieces of evidence are kept aside, there is no other evidence which can even remotely connect or point towards the guilt of the appellants. The statements of the prosecution witnesses should be recorded as promptly as possible, without giving them any opportunity to improve upon and subtract from what they saw or heard. Since the delay is likely to give an opportunity to a witness to concoct a different version. The testimony of above witnesses had proved fatal and sounded death knell for the prosecution case.
19. Ghulam Abbas (PW-1) has deposed in his court statement that on 07-12-2010 at about 6.50 p.m., Farhat Shaheen and Mumtaz Ahmad along with Muhammad Shareef-the deceased started their journey from Islamabad to Pakpattan in vehicle LHR-9844, color silver, corolla 87. At 09:30 p.m., and Ghulam Abbas (PW-1) was unable to contact Muhammad Shareef advocate-the deceased on telephone, whereupon he (PW-1) contacted with Mumtaz accused on telephone who (Mumtaz accused) informed him (PW-1) that they (Farhat Shaheen and Mumtaz Ahmad) lost their contact with Muhammad Shareef advocate-the deceased after 09:30 p.m. on reaching bridge Jhelum river at motorway. Muhammad Afzal (PW-2) in corroboration of Ghulam Abbas (PW-1) deposed in the similar lines. When Ghulam Abbas (PW-1) and Muhammad Afzal (PW-2) were got cross examined and were duly confronted with their written complaint (Ex.DA) and statement recorded under Section 161 Cr.P.C (Ex.DB) respectively, then almost all their deposition was found to be great improvement on each and every material fact as nothing of the sort was found recorded in their written complaint (Ex.DA) and statement recorded under Section 161 Cr.P.C (Ex.DB) respectively. I, straightway come to the material improvements/ discrepancies/ contradictions in the prosecution evidence brought on the record by the defence. Ghulam Abbas (PW-1) deposed during cross examination that, "---I did not write or dictate complaint moved before the police and the police got my signatures on blank paper . I had never gone through the averments of complaint Ex.DA upon which F.I.R was lodged. It is incorrect to suggest that I am disowning the averments of complaint Ex.DA as the story in the same is entirely different from the one which I am narrating at present. F.I.R. Ex.PA was also not lodged upon my statement. I did not mention before the police that Ashraf, Akram and Afzal witnesses had come for inquiry about the health of my sister-in-law (Bhabhi). Again said I had mentioned this fact. Confronted with Ex.DA where it is not so recorded. I had told the police that Shareef deceased sat on front seat of vehicle while Farhat Shaheen accused present in the court drove the vehicle, Mumtaz accused present in the court sat behind. Confronted with Ex.DA where it is not so recorded. I had told the police that I had telephonic conversation with Mumtaz and Farhat Shaheen accused. Confronted with Ex.DA where no reference of telephonic conversation of PW with the accused is present. I told the police that both the accused present in the court murdered Shareef deceased by pressing his neck. Confronted with Ex.DA where it is not so recorded. I did not mention before the police that when I contacted the house of Muhammad Shareef deceased, I found out that he had not reached there. Confronted with Ex.DA where it is so recorded. I did not mention before the police I along with Akram, Ashraf and Afzal PWs went to Pakpattan and contacted Mumtaz and Farhat Shaheen accused who told that when they reached at bridge river Jhelum situated at Motorway within the area of P. S Bhera, their vehicle had a fault. In the meanwhile, Muhammad Shareef deceased suddenly disappeared. Confronted with Ex.DA where it is so recorded."
"The police recorded my statement after the F.I.R., volunteered that they did not record what I stated. I told the Investigating Officer regarding the occurrence. I had gone through my statement under Section 161 Cr.P.C recorded by the Investigating Officer. I did not file any writ in the Hon'b le High Court against the fact that my statement was not correctly recorded by the Investigating Officer. I mentioned before the police that I had visited the house of my sister Dr. Samina as she was sick. Confron ted with Ex.DB where it is not so recorded. I mentioned before the police that Shareef deceased sat on the front seat, Farhat Shaheen accused drove the vehicle while Mumtaz accused sat behind him. Confronted with Ex.DB where it is not so recorded. I mentioned before the police that Ghulam Abbas complainant contacted Mumtaz accused on his telephone and talked to both Mumtaz and Farhat accused on the same number and asked them about Muhammad Shareef deceased who after some hesitation told that while travelling on motorway , they had lost contact with Shareef deceased at the bridge situated river Jhelum. Confronted with Ex.PDB where it is not so recorded. I had not stated before the police that I inquired regarding Muhammad Shareef deceased from his house and went to Pakpattan where we met both the accused who told us that their vehicle had a fault at bridge riever Jhelum where Muhammad Shareef deceased disappeared. Confronted with Ex.DB where it is so recorded."
20. The improvements and discrepancies in the evidence of the complainant- Ghulam Abbas (PW-1) and Muhammad Afzal (PW-2), were material in nature, and same is enough proof for disbelieving and discrediting their evidence.
In such circumstances, witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with other evidence or with the statement already recorded, in such a case it cannot be held that persecution proved its case beyond reasonable doubt. Respectful reliance in this regard is placed on the judgment of august Supreme Court of Pakistan in the case of "Muhammad Rafique and others v. The State and others"
(2010 SCMR 385 ) wherein it has been held as under:- "This Court in the case of Saeed Muhammad Shah v. State 1993 SCMR 550 observed that if a witness improves his statement on material aspects of the case then such improvement is not worthy of reliance and the evidence of such witness requires corroboration. In the case of Khalid Javed v. State 2003 SCMR 1419 while reiterating the above rule, it was further observed that such witness is to be considered to be wholly unreliable and it is not advisable to place explicit reliance upon his evidence."
21. The private complaint (Ex.PB) is silent about the fact that he (the complainant-Ghulam Abbas (PW-1)) had not made any written or dictated complaint before the police and the police got his (PW-1) signatures on blank paper and he (PW-1) had never gone through the contents of complaint (Ex.DA) upon which F.I.R. (Ex.PA) was lodged.
Absence of these facts creates considerable doubt about the correctness of the evidence of the complainant- Ghulam Abbas (PW-1). Besides the complainant-Ghulam Abbas (PW-1) admitted lodging of F.I.R. (Ex.PA).
During examination-in-chief, he (PW-1) deposed that "on 08.12.2010, I lodge FIR in P.S. Bhera regarding the incident which was F.I.R. No.. 451/2010 Ex.PA" In the private complaint (Ex.PB) the complainant-Ghula m Abbas (PW-1) had mentioned in Para No.1 that, {{URDU TEXT}}
22. Even contradicting the deposition of the complainant-Ghulam Abbas (PW-1) during court statement Muhammad Jahangir, A.S.I (CW-5) deposed that the F.I.R (Ex.PA) was chalked out by him (CW-5) on receipt of application (Ex.DA) of the complainant-Ghulam Abbas and he correctly recorded F.I.R (Ex.PA) without any deletion and omission on his part. Moreover, while replying to the suggestion put by the learned counsel for the complainant, Muhammad Jahangir, A.S.I (CW-5) deposed that, "It is incorrect to suggest that I did not record FIR Ex.PA correctly according to the stance of complainant." The complainant Ghulam Abbas (PW-1) had not denied that the application (Ex.DA) was not submitted by him. Muhammad Afzal (PW-2), who is practicing advocate and real brother of the deceased, has not challenged the investigation at any stage of the investigation.
The initiation of the investigation on the basis of the application (Ex.DA) was also not challenged by the complainant-Ghulam Abbas (PW-1). The strange fact which is hard to digest is that the complainant did not file any single complaint to any police official at any point of time before filling private complaint (Ex.PB). These established circumstances in the present case speak for themselves and the documentary evidence candidly pointed out that the allegations of the complainant were not genuine.
23. The complainant-Ghulam Abbas (PW-1) lodged private complaint (Ex.PB) against both the accused by mentioning one of the reason that in the presence of the complainant-Ghulam Abbas (PW-1) and Muhammad Afzal (PW 2) on 08-12-2010 during search of vehicle No.LHR-9844, the police recovered tempered entry card and broken glasses of Muhammad Shareef deceased and took the same into possession but neither prepared its recovery memo nor mentioned this fact in the investigation. However, the complainant-Ghulam Abbas (PW-1) produced Mukhtar Ahmed, 259/Constable (PW-10) as recovery witness, who did not depose a single word that tempered entry card and broken glasses of Muhammad Shareef were also recovered by the Investigating Officer.
Neither this witness was declared hostile nor the learned counsel for the complainant cross-examined this witness to prove that tempered entry card and broken glasses of Muhammad Shareef deceased were also recovered. This itself casts grave doubts on the prosecution story of recovery of tempered entry card and broken glasses of Muhammad Shareef deceased at the time of search of vehicle No.LHR-9844 and same further deepens the suspicion and casts cloud of doubt on the credibility of the complainant-Ghulam Abbas (PW-1) and prosecution story.
24. Regarding the most important circu mstance that the deceased died by strangulation said to have been strangulated by the accused-appellants, I have scanned the relevant evidence. On perusal of postmortem report (Ex.PC) and testimony of Dr. Mumtaz Fateh-Ullah Khan Niazi (PW-7) reveals that the postmortem examination of the dead body was conducted by the Standing Medical Board on 20-12-2010 at 3:30 a.m. The remarks regarding cause of death in the postmortem report (Ex.PC) given by the Standing Medical Board as well as Dr. Mumtaz Fateh-Ullah Khan Niazi (PW -7) deposed before the court read as under , "Samples of viscera in eight jars were taken and sent to Bacteriologist and chemical examiner , Lahore.
Opinion about the death would be given after the receipt of reports from both corner ."
It suggests that the Standing Medical Board was not able to opine that the cause of death was result of strangulation and they opted to opine the cause of death after receiving on Bacteriologist and Chemical Examiner Reports. Dr . Mumtaz Fateh-Ullah Khan Niazi (PW -7) deposed regarding final report during court statement that, FINAL OPINION .
"After going through the findings in initial postmortem report and report of Bacteriologist and chemical examiner , Lahore, the joint opinion of board was that findings are consistent with the death due to sustain pressure on the carotid sinusus on both side of the neck by injury No.1 & 2 which resulted to vasovagal stimulation leading to neurogenic shock, cardiopulmonary arrest and death. These injuries No.1 & 2 were ante-mortem and suf ficient enough to cause death in ordinary course of nature and death was sudden."
Whereas histopathological report dated 24-12-2010 (Exh.PC/3) reveals that, "Histological examination from hyoid bone and trachea reveals bone and carti laginous fragments. No ante- mortem injury is seen".
25. As per Modi's, Medical Jurisprudence and Toxicology in the case of strangulation post-mortem appearances would be external and internal i.e. External Appearance and Ligature Mark. Ligature mark is a well- defined and slightly depressed mark corresponding roughly to the breadth of ligature, usually situated low down in the neck below the thyroid cartilage, and encircling the neck horizontally and completely . Whereas the internal appearance would be that there is extra vasation of blood into sub cutaneous tissues under the ligature mark or finger marks, as well as in the adjacent muscles of the neck, which are usually lacerated. The cornua of the hyoid bone may be fractured also the superior cornua of thyroid cartilage. The lungs are usually markedly congested, showing haemorrhagic patches and petechiae and exuding dark fluid blood on section. The brain is also congested and shows petechial haemorrhages.
26. When seen in the light of Medical Jurisprudence contained in Modi's Medical Jurisprudence instant case is not of strangulation. Mumtaz Fateh-Ullah Khan Niazi (PW-7) during his court statement deposed which reads as under: ON DISSECTION Under injury No.1, there was uniform conjunction below the injury on skin up to the subcutaneous tissue.
While mussels were apparently normal. Under injury No.2, there was uniform conjunction below the injury on skin/s.c tissue. Mussels normal. Under injury No.3, conjunction of skin, s.c. tissue. Mussels normal.
Under injury No.4 NAD (animal bite) .
DISSECTION ON NECK AREA.
(i) Tissues from the neck along with hyoid bone taken and sent to Bacteriologist for detection of ante- mortem histopathological changes. While hyoid bone was apparently intact.
(ii) Brain. No visible changes. Specimens sent to bacteriologist.
(iii) Liver , spine, kidney and heart. Apparently normal. Sent to Bacteriologist.
(iv) Lungs of both side showing carbon deposition all over surfaces, normal in size and on cut section no oozing of blood or water is present. Sample taken and sent to Bacteriologist.
(v) Stomach containing semi digested food, sent to chemical examiner , Lahore for detection of poison if any .
(vi) Small and large gut. Small quantity of fecal matter and gases.
27. From above, it clearly reveals that instant case is not a case where death was caused by pressing the throat from both sides by both the appellants. As no marks of abrasions and bruises were found on the throat of the deceased by the Standing Medical Board. Even the Standing Medical Board was unable to discover the sign of strangulation over the neck or pressing throat of the deceased-Muhammad Shareef.
28. In the present case, whole medical report has been manipulated by the prosecution and in this connection the learned counsel for the appellants submits that the injuries No. 1 and 2 which were described by Dr. Mumtaz Fateh-Ullah Khan Niazi (PW-7) before the court were not mentioned, as it is by the doctor (PW-7) in the court and the doctor (PW-7) reported both injuries in grievous way later on before the court. Dr. Mumtaz Fateh- Ullah Khan Niazi (PW-7) during his court statement deposed that following injuries were present on the dead body of the deceased-Muhammad Shareef which reads as under: INJURIES.
1. Contusion mark on the right side of neck extended from angle of mandible right side and from front of right ear to lower part of left neck.
2. Contusion mark on the left side of face extended from left ear to left cheek.
3. Contusion mark on outer side of upper middle and lower parts of right arm.
4. There was insect and animal bite on left arm and forearm along with tendons exposed and bones of left elbow joint lying apart.
Whereas in the post mortem report (Ex.PC) injuries No. 1 and 2 reads as under:
1. Contusion mark on right side of neck extending from angle of mandible right side and from front of right ear to lower part of right neck.
2. Contusion mark on left side of face extending from left ear to left cheek.
Mumtaz Fateh-Ullah Khan Niazi (PW-7) was cross-examined on this aspect. Mumt az Fateh-Ullah Khan Niazi (PW- 7) deposed during cross examination which reads as under , "---Hyoid bone was intact. According to report histopathologist Ex.P-C/3 no ante-mortem injury was seen relating to hyoid bone and cartilage. It is incorrect that I have mentioned injury No.1 on the right jaw near the right ear and injury No.2 on left jaw near the left ear in the pictorial diagram Ex.P-C/2. Volunteers that injuries No.1 & 2 have been fully described under dissection and external examination both where extend area and death has been explained and written in detail while the pictorial diagram provided by the government does not show all the body parts. It is incorrect and influential by the complainant party. In Ex.P-C/1 pictorial diagram no injury has been show cause this page bears the heading of human head not neck. Therefore, it has clearly been mentioned and written on this page that please see detail of injuries on page for leading injuries of dead body. It is incorrect to suggest that opinion of the board was incorrectly recorded later on under the influential of complainant party.
This clearly shows that reports were manipulated by the doctor in order to help the prosecution by wrongly describing injuries No. 1 and 2 before the court. The Autopsy Histopathological Report highlights that the lung section reveals partially autolyzed tissue with focal oedematous fluid inside alveoli. The histopathological report dated 24-12-2010 (Exh.PC/3) reads as under , "The lung sections reveal partly autolysed tissue with focal oedematous fluid inside alveoli. "
This reflects that the victim was alive and during the drowning process, he inhaled excessive water that led to irreversible cerebral hypoxia, coma and ultimately death. However , this is unlikely in case of dead body .
29. The injuries mentioned in the post mortem report (Ex.PC) indicated up to downward impressions of contusion marks on both right and left side of neck, echoed by the standings of medical board stating that the death was caused due to sustained pressure on the carotid sinuses on both side of the neck injuries resulting to vasovagal stimulation leading to neurogenic shock, cardiopulmonary arrest and death. However the cornua of the hyoid bone was not fractured also the superior cornua of thyroid cartilage. The lungs were not marked congested, showing haemorrhagic patches and petechiae and exuding dark fluid blood on section. The brain was not having petechial haemorrhages. Pertaining to this case if manual strangulation had been done by pressing throat of the deceased by the accused-appellants from the back side of victim, there should have been fingers impressions in circular pattern on the front side of victim neck. Whereas both injuries i.e. injury No. 1 started from right side of neck extending from angle of mandible right side and from front of right ear to lower part of right neck and injury No.2 started from the left side of face extendin g from left ear to left cheek. As per opinion of the standing medical board death was caused due to sustained pressure on the carotid sinuses on the both side of neck by injuries No. I and 2.
As per the medical science carotid pertains to the caritid artery and the area near that key artery located in the front of the neck through which blood from the heart goes to the brain. Whereas, sinuses are formed in four right-left pairs which reads as under , SINUSES "---The frontal sinuses are positioned behind the forehead, while the maxillary sinuses are behind the cheeks. The sphenoid and ethmoid sinuses are deeper in the skull behind the eyes and maxillary sinuses.
The sinuses are lined by mucous-secreting cells. Air enters the sinuses through small opening in bone called ostia. If an ostium is blocked, air can not pass into the sinus and likewise mucous can not drain out."
30. The medical science negates the opinion of the standing medical board. Pertaining to this case if manual strangulation had been done from the back side of victim, there should have been marks of fingers impressions in circular pattern on the front side of victim neck. Similarly , ligature strangulation should have left clear circular mark covering whole diameter of the neck. Since, no such evidence has been reported, therefore, the possibility of strangulation gets ruled out. The opinion of the Standing Medical Board was inconsistent with the nature of injuries No.1 and 2 on the body of the deceased. According to the nature of injuries No.1 and 2, the deceased received the injuries with face downwards and if the deceased had received the injuries No.l and 2 in the sitting position, then injuries No.1 and 2 could not have been possible. Whereas if the deceased had fallen with face downwards, injuries No.1 and 2 could have been poss ible and when the deceased sustained pressure on the carotid sinuses on the frontal sinuses resulted to vasovagal stimulation and after drowning the deceased in the water and ultimately death. That' s why this Court sees no difficulty in saying that what is reflected in the histopathological report dated 24-12-2010 (Exh.PC/3) is the accidental death of the victim.
31. Now I, come to the motive for committing the occurrence. To prove this circumstance, the prosecution has examined the complainant-Ghulam Abbas (PW-1). This Court has carefully examined the evidence of the complainant Ghulam Abbas (PW-1). According to the complainant-Ghulam Abbas (PW-1) motive for committing the murder of Muhammad Shareef-the deceased deposed before the court is as under , "The motive behind the occurrence was that Muhammad Shareef deceased remained President of District Bar Association Pakpattan and its General Secretary earlier and at the time of occurrence as well he was President District Bar Association Pakpattan and upon the insistence of lawyers of District Bar Association Pakpattan, Muhammad Shareef deceased was a candidate for the seat of President District Bar Association Pakpattan for the year, 2011 and both the accused present in the court were rivals of Muhammad Shareef deceased in the Bar politics and they were also right hands of Liaqat Ali baloch, the other rival candidate for the seat of President District Bar Association Pakpattan and his friends, hence both the accused present in the court with pre-planned common intention committed the murder of Muhammad Shareef deceased---"
This witness was examined and he (PW-1) admitted that on 08 12-2010 he lodged F.I.R in Police Station, Bhera regarding the incident which was FIR No.451/2010 Ex.PA. A perusal of F.I.R No.451/2010 Ex.PA shows that above stated alleged motive was not mentioned therein. On the contrary , it has specifically , been stated in the FIR No.451/2010 Ex.P A that, {{URDU TEXT}}
32. Similarly , even in the First Information Report, Ex.PA lodged by the complainant-Ghulam Abbas (PW-1) himself, there is none of the allegations stated above. He (PW-1) could not explain the above mentioned omission in the F.I.R (Ex.P A). On scrutinizing the above evidence, I, find that the complainant-Ghulam Abbas (PW-1) has tried to improve his earlier stance when examined in court as is clear that there was nothing against the accused- appellants from their side up to the stage of investigation in their statements eithe r in the application (Ex.DA) or in the F.I.R (Ex.P A) that the motive behind the crime was that which was stated in court. Whereas, during investigation Ghulam Rasool, S.I (presently retired) (CW-7), the Investigating Officer, deposed during cross- examination that, "The motive alleged by the complainan t was found false during investigation . I had visited Bar Association Pakpattan for verification of motive and it transpires that accused and deceased were from the same group and they had jointly contested the election and there was no dispute among them regarding Bar politics---." During cross-examination by the learned counsel for the complainant while replying to suggestion Ghulam Rasool, S.I (presently retired) (CW-7), the Investigating Officer, deposed that, "---It is correct that complainant and the witnesses during the investigation stated that as we have no enmity or litigation with the accused persons. We have no ulterior motive against them. We want to get them challaned in this case only because of the fact that they are real culpirts in the case---" Thus, the testimony of the complainant-Ghulam Abbas (PW-1) cannot be said to be worthy of credence and cannot be believed to establish the motive behind commission of crime by the accused-appellants. The prosecution case in this regard was vague and can hardly inspire confidence. In the circumstances, I cannot avoid the conclusion that the motive, as alleged, was an afterthought and has not been proved by any credible evidence.
33. The last circumstance relied upon is the conduct of the accused-appellants. From the evidence on record, it is established that accused-appellants themselves immediately informed to the police about the missing of Muhammad Shareef-the deceased. The complainant-Ghulam Abbas (PW-1) deposed during cross-examination that, "When we reached at place of occurrence that vehicle was also present on motorway near the bridge towards Bhera. The accused alongwith two unknown persons were also present there then we reached at the place of occurrence, volunteered they arrived after our arrival." Mukhtar Ahmed, 259/Constable (PW-10) deposed during cross-examination that, "I had accompanied the Investigating Officer from the police station to the place of occurrence. The accused persons were also present at the place of occurrence on our arrival there. So many other people were also present there." Whereas, Ghulam Rasool, S.I (presently retired)
(CW-7), the Investigating Officer, deposed during cross-examination that, "---Firstly the matter was reported to motorway police by the accused. Before my arrival at place of occurrence motorway police, S.H.O, police station, Bhera and other motorway police officers were present at the place of occurrence and that time, motorway officials, S.H.O and other persons were searching Muhammad Shareef deceased from the surrounding area including the water of river Jhelum. I also joined the said authorities along with A.S.P Bhalwal in searching Muhammad Shareef deceased. The complainant party was also informed about this incident soon after the occurrence by the accused persons." The conduct of the accused-appellants appears to be natural and cannot be said to abnormal as Muhammad Shareef-the deceased was their President/companion/colleague as on the disappearing of Muhammad Shareef, they (accused persons) informed the police about missing of Muhammad Shareef-the deceased and it was hardly believable that the accused- appellants despite having sufficient time, did not disappear and they had reported the incident to the police. This fact remains unchallenged. I have already recorded a finding that the prosecution has not been able to prove that the accused-appellants had made alleged extra judicial confession and had a clear motive so as to strangulate Muhammad Shareef-the deceased.
34. It is true that deceased died unnatura l death, but this circumstance alone is not sufficient to prove guilt against the appellants unless it is proved that accused had motive to do so and they committed the murder by strangulation. On a very careful scrutiny of the evidence, I do not find anything on record to infer that the accused- appellants had strangulated the deceased. Except that, the accused-appellants started their journey from Islamabad to Pakpattan at 06:50 p.m., on 07.12.2010 before the incident happened, all of them were together , ultimately resulting into death of Muhammad Shareef the deceased, nothing is proved by the prosecution. Needless to say, it was absolutely natural that accu sed-appellants were present with the deceased at the relevant time, as they were his (deceased' s) companions. The circumstance of last seen having been proved by the prosecution alone is not sufficient to lead to the conclusion that it was the accused-appellants, who were guilty of commission of crime.
35. The defence plea taken by the appellants although has not been proved. But the facts remained that the learned counsel for the complainant brought on record plea of the accused-appe llants during cross-examination upon Ghulam Rasool, S.I (presently retired) (CW-7), the Investigating Officer. Ghulam Rasool, S.I (presently retired) (CW-7) deposed during cross- examination that, "---Both the accused had stated that when they had crossed major portion of bridge of river Jhelum on motorway . The CNG of their car was finished and Farhat Shaheen had converted the car on petrol and in the meanwhile the car had stopped. Both the accused had stated that in the meanwhile a phone call of Rana Muhammad Riaz, advocate President of District Bar Association, Arifwala was received on cell phone of Farhat Shaheen accused and he had handed over his telephone to Muhammad Shareef deceased and rest of the telephone call was attended by Muhammad Shareef deceased ---". The learned counsel for the complainant further brought on the record that Rana Muhammad Riaz, advocate made two statements on 06-02-201 1 and 13-03-201 1 through cross-examination upon Ghulam Rasool, S.I (presently retired) (CW-7), the Investigating Officer. Ghulam Rasool, S.I (presently retired)
(CW-7) deposed during cross-examination that, "---There are two statements of Rana Riaz Ahmad Khan, advocate in the police file written on 06.02.201 1 & 13.03.201 1 respectively . Is it recorded in the statement of Rana Riaz Ahmad dated 06.02.201 1 that accused Farhat Shaheen had received a telephone call from Rana Riaz Ahmad, advocate on 07.12.2014 at about 9:45 p.m., but he has not talked to Muhammad Shareef deceased at that time?--- "
36. It is an admitted fact that the call details of the accused-Farhat Shaheen and Rana Muhammad Riaz, advocate were not collected by the Investigating Officer. From which, it could easily be determined that whether Rana Muhammad Riaz, advocate had made call on the Mobile of accused-Farhat Shaheen on 07-12-2010 at 9.45 PM on the date of incident, i.e., immediately before the occurrence of the incident and how long the conversation lasted between them and location of the accused-Farhat Shaheen. But no such effort was made as Rana Muhammad Riaz, advocate earlier admitted that he had made call to the accused-Farhat Shaheen. The reasons best known to Rana Muhammad Riaz, advocate that why he reverted from his earlier statement recorded by the police on 06-02- 2011. It is an admitted fact that the accused-appellants were arrested on 28 02-2011 on receiving reports of Joint Medical Board but Rana Muhammad Riaz, advocate had not stated before the police on 12-03-2011 that his earlier statement was result of threats or any pressure put upon him by the accused-appellants, if it was so the prosecution must brought it on the record and would produce Rana Muhammad Riaz, advocate as a witness. However , it is settled principle of law that the prosecution has to stand on its own legs. It was for the prosecution to prove the charge beyond any shadow of doubt. Moreover , the prosecution cannot take any benefit of weakness of defence plea. In the case of "Shera Masih and another v. The State" (PLD 2002 SC 643 ), it has been held that: "---Defence plea of the accused even if is not supported by any evidence direct or circumstantial and is discarded being improbable, still it will not be a circumstances to prove the guilt of an accused an the prosecution has to establish it case by standing on its own legs---" .
37. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbably or lacks "credibility", benefit of doubt necessarily has to go to the accused. The result of the above discussion is that, this appeal is accordingly allowed . The accused-appellants are entitled to the benefit of doubt and they are acquitted of the offence charged with. The judgment of conviction and sentence passed against the appellants dated 11.04.2016 is set aside. The accused-appellants, Farhat Shaheen and Mumtaz Ahmad are in jail and they be set free forthwith, if not required in any other case.
38. So far as Criminal Revision No.610 of 2016 filed by the complainant, namely Ghulam Abbas for enhancement of sentence of the appellants as well as compensation amount awarded by the learned trial court is concerned, for the reasons afore-stated, the same is devoid of any legal force, which is accordingly dismissed .