' QAZI MUHAMMAD AMIN AHMED, J. --- Hafeezullah son of Ahmad Hayat, appellant herein, is in receipt of a guilty verdict, returned to him vide impugned judgment dated 24.6.2010 by a learned Addl. Sessions Judge at Chiniot; he was tried alongwith Saleemullah, Ahmad Hayat and Umar Hayat. Ahmad Hayat died during the trial whereas Saleemullah and Umar Hayat stand acquitted.
In the wake of his conviction under Sections 302(b), 324, 337-F(iii), 337F(vi) of the Pakistan Penal Code, 1860 with sentence of death alongwith payment of compensation in the sum of Rs, 500,000/- or to undergo six months SI in the event of default, seven years R.I. With fine of Rs, 50,000/- or six months SI in default payment thereof, three years R.I. With payment of Daman of Rs, 25,000/-each, respectively, he has challenged the vires of impugned judgment through: Crl. Appeal No, 1646 of 2010. Crl. Appeal No, 2214 of 2010 filed by Khuda Bukhsh, complainant seeks reversal of acquittal of Saleemullah and Umar Hayat, co-accused; Murder Reference No, 564 of 2010 has been sent for confirmation of death penalty; these are being decided through this single judgment.
' Prosecution case is structured upon statement Ex.PN of Khuda Bukhsh (PW-1) recorded straight at Police 'Station Barrana by Habibullah, ASI (PW-9) at 9:00 p.m, wherein it is alleged that on the fateful day the complainant alongwith Muhammad Amin (PW-4), Muhammad Ashraf and Salahuddin (PW-5) had visited Police Station Barrana in connection with investigation of a case registered vide F.I.R. No, 356 of 2007 whereafter, Sanaullah deceased, 42, in the company of Salahuddin and Muhammad lqbal, PWs boarded a car bearing Registration No, 'IDH-7005; complainant, Faisal, Naveed and Muhammad Ashraf followed them in another car; at about 7:30 p.m, they were intercepted by Hafeezullah, Saleemullah, Tahir lmran and Muhammad Imtiaz accompanied by two unknown companions, armed with Kalashnikovs. The appellant hit Muhammad Amin, PW with a straight fire shot landing on his right arm followed by a fire by one of the unknown assailants hitting Muhammad lqbal (given up PW) on his right leg. Tahir Imran accused exhorted the deceased to come out of the vehicle . Whereafter he alongwith Saleemullah and Muhammad Imtiaz made indiscriminate firing on Sanaullah and Salahuddin. The witnesses, out of fear, stayed at bay, the assailants decamped and the deceased succumbed to his injuries on the spot. Motive for the occurrence is previous cases registered vide separate FIRs between the complainant side and the accused. Ahmad Hayat and Umar Hayat sons of Ghulam Muhammad were arrayed as abettors in the crime.. The Investigating Officer, during spot inspection, secured blood from inside car (P-4). Autopsy was conducted by Dr. Ljaz Hussain (PW-12) at 10:00 a.m. On 6.12.2007, who noted entry wounds on back of right upper chest, 2 ,cm from vertebral column-with a corresponding exit, on back of right upper chest, right middle chest; right upper buttock and back of left arm; a grazing, wound 4 cm x 1,5 cm was seen on the right lower buttock. An exit wound was found on the back of left upper chest as well as an abrasion on the inner side of right leg. Fire-arm injuries were opined as cause of death. Probable time between the injuries and death was reckoned as immediate whereas between death and post-mortem as 13 to 15 hours. Dr. Munir Ahmad (PW8) medically examined Muhammad Amin (PW-4) and Salahuddin .(PW-5). The said.
Medical Officer also examined one Muhammad Rafique son of Muhammad Farid as well.
Muhammad Amin (PW-4) was noted to have a swelling on top of head with a fire-arm wound on the middle part of right forearm as well as on inner aspect of right upper arm and inner aspect of right leg; wounds on the right forearm .Had corresponding exits. Salahuddin (PW-5) was noted with a lacerated wound 1 cm x 1 cm on the back of right upper arm. Tahir lmran and Muhammad lmtiaz accused are away from law till date; they stand proceeded against in their absence. Mazhar and Nasir were identified as the unknown assailants, they alongwith the abettors were exonerated during the course of investigation and so is Saleemullah. Investigating Officer secured one licensed 12 caliber gun (P-3) from the spot. According to memo. Ex.PA, gun P-3 alongwith 26 live cartridges belongs to Ahmed Hayat accused. On completion of investigation, the appellant alongwith co- accused was sent to face trial, who contested the charge; prosecution in order to bring home the charge, produced sixteen witnesses; Shahid Mehmood, inspector and Ijaz Hussain, SI were examined as Court witnesses. The appellant confronted the prosecution evidence with the following plea:--- ' "I belong to a respectable and noble family of the locality and has been elected as Naib Nazim of my union twice consecutively. The complainant of this case had illegal possession over our own land situated at Chak No, 166/167 Tehsil Silanwali District Sargodha and when we demanded the same land before the alleged occurrence, the relation between my family and complainant became strained. Sanaullah deceased of this case was an addict person of narcotics i.e, Heroin and due to his bad habits, he was weak, mentally upset and near to death and all of his property was grabbed by the complainant and in those days, said Sanaullah alongwith Muhammad Amin and Saleemullah were indulged in road side dacoity and on the day of occurrence, these persons were injured during the course of commission of dacoity in the area of Tehsil SiIlanwali and consequent upon that occurrence, Sanaullah deceased succumbed to the injuries and complainant party in connivance with the police, falsely implicated me and my whole family in this occurrence. All the PWs are closely related inter se and they are inimical towards me and only for this reason, they have deposed falsely against me."
' The appellant also produced copies of revenue record and First Information Reports to highlight previous bad blood inter se the parties. The learned trial Judge convicted and sentenced the appellant as referred to above.
2. Learned counsel for Hafeezullah contends that according to First Information Report Ex.PN, the appellant is assigned no harm to the deceased and instead only role attributed to him is an injury to Muhammad Amin (PW-4); that both the eye-witnesses roped the appellant with a fatal role qua the deceased through massive improvements in their previous statements, duly confronted to them, during cross-examination; that identically placed co-accused Saleemullah has since been acquitted for valid and cogent reasons, therefore, same set of evidence cannot be pressed into service to sustain charge against the appellant in the absence of independent corroboration, hopelessly lacking; that long standing enmity between the parties, constitutes a motive which cuts both ways and taken from that angle the evidence of Khuda Bukhsh (PW-1), Muhammad Amin (PW4) and Salahuddin (PW-5) warrants additional corroboration in order to ensure safe administration of criminal justice. Contrarily, the impugned judgment is defended by the learned Law. Officer assisted by learned counsel for the complainant, who has prayed for conversion of Saleemullah's acquittal into conviction on the ground that taken from any angle, prosecution equally succeeded to bring home charge against Saleemullah and as such the learned trial Judge had no occasion to acquit him from the charge.
3. Heard. Record perused.
4. Going by the First Information Report, the initial role assigned to the appellant is a fire shot qua Muhammad Amin (PW-4) on his right arm; there are two fire-arm injuries on the right arm of Muhammad Amin (PW-4) on his right side on ulnar aspect and right upper arm, 8 cm above elbow joint; one of the fire shots to Muhammad Amin is assigned to the unknown assailants, subsequently identified as Mazhar and Nasir. According to this witness, the appellant made first fire shot which hit him on his right arm and thereafter the same shot hit Sanaullah deceased; he has omitted, in his examination-in-chief, reference to second fire shot at the hands of unknown assailants; there are no casings secured from the spot nor recovery of any weapon to confirm the accusation levelled by this PW: 'he has also deviated from his previous statement so as to take on the appellant in respect of injuries to the deceased also and for that he was duly confronted with his departure from earlier statement; this depicts a strong commitment on part of this witness to frame the appellant with the charge, in a manner, far from being realistic and truthful. Salahuddin (PW-5) resorted to the same method; their evidence requires a very cautious scrutiny, particularly in view of the fact that they have been disbelieved qua the acquitted co-accused. Previous enmity is a common ground; no doubt, corroboration is a rule of prudence and not that of law, however, it becomes imperative where witnesses, seemingly have an axe to grind. In the absence of independent corroboration, it would be unsafe to rely upon an improved version of the witnesses introduced for the first time during the trial. Improvements are so huge that they tend to change the entire complexion of the occurrence and, therefore, cannot be described merely as explanatory. Taken from yet another angel, the improvement is ludicrous to say the least as it is not possible for human eye to capture entry, exit and re-entry of a bullet, that too, inside the car in the darkness. Once a witness is found to have a capacity and tendency to exaggerate, his testimony warrants stringent scrutiny, particularly in this case with a history of previous enmity. Unanimity in exaggeration by both Muhammad Amin (PW-4) and Salahuddin (PW-5) cannot improve upon the prosecution case as one tainted piece of evidence cannot corroborate another tainted rendition.
Justice, a divine trait, must be based upon the whole truth. Seizure of a 12-caliber gun P-3 with live cartridges, statedly belonging to Ahmed Hayat accused is really intriguing for the reason that there is no reference to it in the First Information Report Ex.PN and as to how the gun was found at point No, 6 as depicted in site plan Ex.PG is left to our imagination. Incident according to F.I.R. Ex.PN is reported at 9:00 p.m, however, autopsy is conducted at 10:00 a.m. On 6.12.2007, the witnesses were medically examined at 11;45 p.m. On 5.12,2007 and on wards; hospital is situated at a distance of 2- k.m; the place of occurrence is 9-k.m. From Police Station Barraha; this delay between the occurrence and autopsy admits a reasonable possibility that First Information Report Ex.PN was not recorded at a point of time mentioned therein. All these circumstances, taken into consideration, cumulatively cast a shadow of doubt on the prosecution story qua the present appellant and we find it extremely unsafe to maintain the conviction, therefore, while extending benefit of doubt to the appellant, Crl. Appeal No, 1646 of 2010 is allowed; the appellant is acquitted from the charge; he shall be set at liberty forthwith, if not required in any other case. Murder Reference is answered in NEGATIVE and death sentence is NOT CONFIRMED. As a natural corollary, Criminal Appeal No, 2214 of 2010 stands dismissed.