' AALIA NEELUM, J. - Wan Ali son of Farzand Ali, Caste Rajpoot, resident of Street No, 3, Patha n Chowk, Faisalabad alongwith Sultan-ul-Haq son of islam-ul-Haq (since acquitted), Muhammad Azam son of Muhammad Sarwar (since acquitted), Muhammad Saeed son of Muhammad Siddiq (since acquitted), Zahid Pervaiz son of Fazal Muhammad (appellant in Crl. Appeal No,.476 of 2010 already acquitted on account of combromise), Ashiq All son of Muhammad Siddique (since dead as bumped off in a police encounter on 14.07.2006 and case was stood abated to his extent vide order dated 02.03.2009) and Asim All son of Liaqat Ali Ansari (since P.O.) were involved in Private Complaint filed under Sections 302, 396, 148, 149, P.P.C. (on 12.03.2007 by Mehboob Alam) and were tried by Syed Muzaf far Ali Shah, Additional Sessions Judge, Gojra. The learned Trial Court seized with the matter in terms of judgment dated 17.02.2010 convicted lrfan Ali (appellant) under Sections 302(b)/34, P.P.C. And sentenced him to death as Ta'zir alongwith the compensation of Rs, 2,00,000/- payable to the legal heirs of Adeela Kausardeceased and in default thereof, to further .Undergo six months' imprisonme nt. The accused (appellant) was further convicted under Sections 302(b)/34, P.P.C. And sentenced to death as Ta'zir alongwith the compensation of Rs, 2,00,000/- payable to the legal heirs of Mst. Kausar Parveendeceased and in default thereof, to further undergo six months' imprisonment. The accused (appellant) was also convicted under Sections 324/34, P.P.C. And sentenced to rigorous imprisonment for a period of 10 years with payment of Rs, 20,000/- as fine and in default whereof, further undergo rigorous imprisonment for two years. The conviction of the accused (appellant) was also made under Sections 337-D/34 and sentenced to 10 years' rigorous imprisonment and to pay Arsh i.e, one third of Diyat Rs, 1,02,070/-. The convict shall be kept in jail and dealt with in the same manner as if sentence to simple imprisonment until Arsh is paid in full. The accused (appellant) was further convicted under Sections 394/34, P.P.C.
And awarded rigorous imprisonment for life with fine of Rs, 20,000/- and in case, the fine amount is not realized, he (appellant) will further undergo for two years rigorous imprisonment. The benefit of Section 382-B of Cr.P.C. Was also extended in favour of the accused (appellant).
2. Feeling aggrieved by the judgment of the learned Trial Court, Irian Ali, appellan t has assailed his conviction by filing Criminal Appeal No, 544J/2014. The learned Trial, Court forwarded Murder Reference No,. 160/2010 for the confirmation of death sentence inflicted upon the convict, namely , Irfan Ali and Asim Ali, co-convict. As both the matters are arising out of one and the same judgment of the learned Trial Court, therefore, these are being disposed of through this consolidated judgment.
3. It would not be out of context to mention here that the legal heirs of deceased, Mst. Kausar Bibi and Mst. Adeela Kausar had entered into compromise with Zahid Pervaiz (appellant in Crl. Appeal No, 476 of 2010) and in terms of order dated 23.08.2010 passed in Crl. Misc. No, 1391-M/2010, he was acquitted of the charge.
' Precisely , the story as contained in the private complaint by Mehboob Alam (PW-1) is that on 09.06.2006 at about 11:00/1 1:30 p.m. (noon) he (the complai nant), his wife Mst. Kausar Parveen and his daughters namely Adeela Kausar and Shahnila Mehboob were present' in their house situated at Chak No, 241/GB, Abadi Behram, Tehsil Gojra where his brother-in-law (wife's brother) Zahid Pervaiz came to his house and started conversation. After few minutes of his (Zahid Pervaiz) arrival, the door was knocked, Zahid Pervaiz had opened the door and brought three persons i.e, (1) having saltish colour , smart body of average height with round face, afterwards he was known as Asim Ali son of Liaqat, (2) second one having saltish colour , stout body , of average height with round face aged 19/20 years, afterwards known as Irfan Ali son of Farzand Ali and (3) third one having saltish colour , stout body having average height with long face aged about 25/26 years. All were wearing shirts and trousers. Zahid Pervaiz told the complainant and his wife Mst. Kausar Parveen that they had brought some news about his (the complainant) son namely Muhammad Zubair who was working at Rawalpindi and the accused persons also showed card of Muhammad Zubair . On hearing this, the wife of the complainant Mst. Kausar Parveen came in the residential room. Before they could understand, three accused once took out their pistols and threatened that if they made hue and cry or moved they would shoot them. Ashiq Ali (since dead) guarded them whereas the other two started searching the room and extorted Rs, 1,05,000/- and gold ornaments weighing 10-tolas and also robbed of Rs, 2000/- and mobile phone of the complainant lying in his pocket. In the meanwhile, Adeela Kausar who was standing in the Courtyard raised hue and cry whereupon accused Ashiq All (since dead) made straight firing on the daughter of the complainant Adeela Kausar. Thereafter on the indication of Zahid Pervaiz (complainant of the F.I.R.), Irfan Ali-accused fired at the complainant which landed at supropubic region, whereas accused Asim All (P.0) fired at Mst. Kausar Parveen which landed at her belly. The daughter of the complainant Adeela Kausar died at the spot. Thereafter Zahid Pervaiz after getting admitted the complainant and Mst. Kausar Parveen in the hospital, became complainant and got registered the case. Besides the complai nant, her daughter namely Mst.
Shahnila Mehboob (PW-2) is also eye-witness, she (Mst. Shahnila Mehboob) informed him that the accused persons had done firing upon him and his wife on the indication of Zahid Pervaiz. Thereafter Sadiq (given up-PW) and Arshad Mehmood (PW-3) told that Saeed Ahmad (since acquitted) had brought Asim All (P.O.) and Han Ali (the appellant) to the house of Ashiq Ali (since dead) and had a meeting with Zahid Pervaiz and Muhammad Azam (since acquitted) at Bus Stop of Chak No, 241/G.B, Gojra Whereafter they (all accused) came together to the house of the complainant. Zahid Pervaiz (since acquitted) firstly entered into house whereas Muhammad Azam (since acquitted) kept on watching during the occurrence while standing at roof of his house.
5. Earlier on the oral complaint (Ex.PQ) of Zahid Pervaiz (later on arrayed as accused in the private complaint)
F.I.R., (Ex.PQ/1) was lodged. Tersely , the prosecution story as alleged in the F.I.R (Ex.P .Q/1) is that on 09.06.2006 at about 2:00 p.m., he was present in his sister's house namely Mst. Kausar Parveen situated at Chak No, 241/GB (Gahra/Behram), Tehsil Gojra whereas three unknown persons i.e, (1) firstly having saltish colour , smart body of average height with round face having age of 20/22 years, wearing shirt & trouser , (2) secondly saltish colour , stout body with average height having round face, aged 19/20 years wearing shirt & trouser , (3) thirdly saltish colour , stout body of average height with long face, aged 25/26 years, wearing shirt & trouser, came there on a motorcycle and while showing card of Muhammad Zubair (his nephew) working at Savour Fast Food Hotel, Rawalpindi and told that they had been sent by him whereupon they were made to sit in the drawing room and were served drinks by the complainant. Thereafter , the visitors in a strange manner had informed that Muhammad Zubair had met with a serious incident due to which he was much worried, therefore, discussion might be done inside the house and in consequence thereof, they were brought in a residential room of the house whereas Mst.. Kausar Parveen and Adeela Kausar (since died) were present but all of a sudden, the unknown visitors took out their pistols and one of them stood at their guard whereas the other two started to search the house and in result whereof, they extorted Rs, 1,05,000/-and gold Ornaments weighing 10-Tolas. They also took out Rs, 500/- alongwith National Identity Card from the pocket of the complainant and also snatched the wrist watch of the complainant besides robbing Rs, 2000/-, mobile phone and National Identity Card from Mehboob Alam. In the meantime, Adeela Kausar (since died) raised hue & cry upon which the invader mentioned at serial No, 3 fired at her which landed at her right flank, who fell down, Whereupon, the complainant and others made a noise but the transgressor mentioned at serial No, 2 fired at Mehboob Alam which landed at lower part of his pubic area whereas the trespasser mentioned at serial No, 1, made fire at Mst. Kausar Parveen which hit under navel of her belly. Thereafte r while making firing, they were decamped on their motorcycle and Adeela Kausar died at the spot whereas Mst. Kausar Parveen and Mehboob Alam were escorted to the hospital, from where, both were referred to the Allied Hospital, Faisalabad on 12.06.2006 but ,unluckily , Mst. Kausar Parveen succumbed to the injuries on the same day .
6. After the alleged occurrence, the. Complainant rushed towards the police station after leaving Master Fazal Muhammad and Muhammad Rafaqat near the dead-body of deceased, Adeela Kausar for reporting the occurrence and he (complainant) met with Abdul Ghafoor , S.I. At Pul Nehar Chak No, 178-GB (PW-11), who alongwith his companions, was on patrolling duty there. The complainant made his statement before Abdul Ghafoor , S.I.
7. Abdul Ghafoor , S.I. (pw-1 1) reduced into writing oral complaint (Ex.PQ) of the complainant (Zahid Pervaiz) and the complainant signed as a token of its correctness and after completion of police karawi, Abdul Ghafoor , Si. (PW- 11) sent the same to the police station through Muhammad Siddique 537/C whereupon formal FIR. (Ex.PQ/1) was chalked out by Atta Ullah, (PW-9). Thereafter investigation was entrusted to Abdu l Ghafoor , (PW-11), who visited the place of occurrence and prepared the injury statement (Ex.PM) after inspecting the dead-body of deceased, Adeela Kausar , he also prepared inquest report (Ex.PN) and deployed Talib Hussain, A.S.I. (PW-10) for getting conducted post-mortem on the dead-body of Adeela Kausar . After post-mortem, (PW-10) produced police papers, copy of post-mortem report and last worn clothes of the deceased before him (PW-11) qua which,. He (PW-11) prepared the recovery memo., which was attested by Talib Hussain, A.S.I (PW-10), Rafaqat Ali and Fazal Muhammad. Thereafter he (PW-11) obtained blood in a sealed parcel from the place of dead-body of deceased, Adeela Kausar and prepared recovery memo. (Ex.PR). Likewise, blood was also preserved in a sealed parcel from the place of injuries of Mst. Kausar Parveen while preparing recovery memo. (Ex.PS). Similarly , blood was also taken in a sealed parcel from the place where Mehboob Alam was injured, qua which recovery memo. (Ex.PT) was prepared. He (PW-11) also took into possession an empty of 30-bore pistol from the place where Adeela Kausar , deceased was fired vide recovery mem o. (Ex.PU). Thereafter the Investigating Officer (PW-11) also took into possession a crime empty of 30-bore pistol wherefrom Mst. Kausar Parveen was fired and prepared recovery memo. (Ex.PV). Similarly , he (PW-11) also took into possession and preserved into a sealed parcel a crime empty of 30-bore pistol where Mehboob Alam was fired at and prepared recovery memo. (Ex.PX). Thereafter he (PW-11) prepared the visual site plan of place of alleged occurrence as (Ex.PY) and recorded the statements of five witnesses under Section 161 of Cr.P.C. On 10.06.2006, he (PW-11) recorded the statements of Mehboob Alam and Mst. Kausar Parveen under Section 161, Cr.P.C. The Draftsman, Kazim Hussain Gilani (PW-7) took rough notes on 13.06.2006 and thereafter on 15.06.2006. He (PW-7) produced scaled site plans (Ex.PL) and (Ex.PL/1) before the Investigating Officer (PW-11). On 23.06.2006, the Investigating Officer (PW-11) arrested the accused-Muhammad Azam, Sultan-ul-Haq, Kan Ali and Asim Ali. During personal search of accused-Muhammad Azam, two mobile phones of Samsung (P-1) and (P-2) alongwith sim and another Nokia mobile alongwith sim were recovered, which were taken into possession vide recove ry memo. (Ex.PB). Thereafter he (PW-11) also took into possession motorcycle (P-3) bearing registration No, RNA-9394 through recovery memo. (Ex.PC) while preparing a site plan with regard to the place of recovery thereof as (Ex.PC/1). On 26.06.2006, he (PW-11) arrested the accused- Muhammad Saeed and during personal search of him, mobile phone Nokia (P-3) with a live sim alongwith another sim was recovered vide recovery memo. (Ex.PD). On 05.07.2006, Irfan Ali (appellant) got recovered a 30-bore pistol (P-6) alongwith 8 live bullets (P-7/1 to 8) from underneath a sheesham tree, which were taken into possession by him (PW-11) vide recovery memo. (Ex.PF) whereas site plan of place of recovery was prepared as (Ex.PF/1). The other accused-Asim Ali also got recovered a pistol 30-bore (P-5) alongwith six live bullets (P-4/1 to 6) from underneath the acacia tree which were taken into possession through recovery memo. (Ex.PE) and site plan qua place of recovery (Ex.PE/1) was also prepared by him (PW-11). Thereafter on 06.07.2006, accused-lrfan Ali had led to the recovery of looted amount from underneath the mango tree wrapped in a black colour shopper worth Rs, 20,000/-, 15 notes of Rs, 1000 /- denomination and 10 notes of Rs, 500/- denomination alongwith I.D.
Card bearing No, 33301-21 16698-5 of complainant-Zahid Pervaiz and in this regard, recovery memo. (Ex.PJ) was prepared. On the same day, accusedAsim Ali also got recovered the looted amount from underneath of a mango tree, wrapped in a black colour shopper containing 17 notes of Rs, 1000/- denomination and 6 notes of Rs, 500/- denomination alongwith I.D. Card bearing No, 33301-2079189-5 of Mehboob Alam, which were taken into possession vide recovery memo. (Ex.Ph) and site plan of place of recovery was prepared as (Ex.PH/1). Thereafter Muhammad Azam-accused during the interrogation, got recovered his share from the looted amount from his sitting room where a bed of Na war was lying, out of which he picked Rs, 45000/-, (P-9/1-9) 40 notes of Rs, 1000/- denomination and 10 notes of Rs, 5000/-denomination whereas the Investiga ting Officer (PW-11) prepared recovery memo. (Ex.PG) alongwith .Site plan as (Ex.PG/1). On 07.07.2006, Muhammad Saeed-accused got recovered the looted wrist watch (P-14) which was taken into possession vide recovery memo. (Ex.PK).
8. Having found the appellant guilty , the Investigating Officer prepared report under Section 173, Cr.P.C. And sent the same to the Court of Sessions en-routed through the learned Illaqa Magistrate 'as provided under Section 190(2), Cr.P.C. Later on, Mehboob Alam (PW1) filed a private complaint before the learned Illaqa Magistrate or 09.06.2006 with considerable delay before the learned Illaqa Magistrate during trial of the challan case with changed mode and manner of occurrence. The learned Illaqa Magistrate sent the same to the worthy Sessions Judge, Toba Tek Singh for its entrustment to 'the Court of competent jurisdiction. The learned Trial Court after hearing preliminary arguments, summoned all the accused persons to face their trial.
9. After appearance of the accused persons, they were formally charge-sheeted by the learned Trial Court in terms of order dated 17.05.2008 respectively , to which they pleaded not guilty and claimed trial. The prosecution in order to advance its case, produced as many as twelve (12) prosecution witnesses. Mehboob Alam (PW-1) is the complainant of the case, whereas his testimony was supplemented by Shahnila Mehboob (PW -2).
10. Dr. Subah Seemi (PW-8), had conducted the post-mortem examination upon the dead-body of deceased, Adeela Kausar on 09.06.2007 at 1 1.00 p.m. And found the following injuries:- INJURIES:
1. A lacerated wound of entrance by fire-arm 1 cm x 1 cm on lower part of outer side of right chest.
Margins of wounds were black and inverted.
2. A lacerated wound of fire arm of exit 2 x 1.5 cm on the upper part and front of middle of chest.
3: An abrasion of 2 x 1 cm was present on the back of left elbow.
OPINION: ' According to the doctor's opinion,, cause of death in this case was haemorrhage and shock resulted from injury Nos. 1 & 2 as narrated above. These injuries are sufficient to cause death in ordinary course of nature. Both the injuries were ante-mortem in nature and were caused by fire-arm weapons. Probable time between injuries and death is 1/2 hour. Time between death and post-mortem examination, was about 8 hours. Post-mortem report is Ex.P0 and diagram is Ex.P0/1 and Ex.P0/2.
' Rest of the prosecution witnesses are formal in nature.
11. On 10.04.2009 & 14.04.2009, learned counsel for the complainant gave up. PWs Haji Muhammad Sadiq and Khalid Saleem 283/C being un-necessary . Thereafter learned Assistant District Public Prosecutor produced the report of Chemical Examiner pertaining to the bloodstained earth of Mst. Kausar Parveen as Ex.P.AA, report of Serologist as Ex.P.BB, report of Chemical Examiner , Lahore with regard to blood-st ained earth pertaining to Adeela Kausar Ex.P.CC and report of Serologist as Ex.P.DD, report of Forensic Science Laboratory , Lahore Ex.PZ and dying declaration of Mst. Kausar Parveen as Ex.P .EE and closed the prosecution evidence on 14.05.2009.
12. The appellant was also examined under Section 342, Cr.P.C. Neither the appellant opted to appear in person as his own witness under Section 342(2), Cr.P.C. nor he produced any defence witness. While replying to a question, why this case and why the PWs have deposed against him, the appellant-Zahid Pervaiz made the following deposition:--- "I am innocent. I was present in the house of Mehboob Alam the complainant as a relative where Irfan and others the dacoits of this case on the pretext of passing some massage of Muhammad Zubair my bhanja residing at Rawalpindi entered into the house of Mehboob Alam and where they committed dacoity and with 30 bore pistols fired t Adila Kausar my bhanji, Mst. Kausar my sister and injured Mehboob Alam the complainant and they also robbed of Rs, 500/- my I.D. card and my wrist watch. The dacoits also robbed of Rs, 2000/- I.D. Card and mobile phone belonging to the complainant. The accused after the occurrence when decamped from the spot, I got recorded complaint Ex.PQ to Abdul Ghafoor , S.1. on 09.06.2006 at 4:15 p.m. at bridge of kanal chak No, 178/GB whereupon case F.I.R. No, 205 of 2006 was registered at P.S. Saddar Gojra and the case was investigated into.
During the course of investigation, when the looted property was recovered from the dacoits, I got the cash on superdari but Mehboob Alam insisted to deliver him the cash recovered from the dacoits and on my refusal a dispute took place between >me and Mehboob Alam and due to that dispute, he lodged the present complaint against me as an accused. The case property presently is with Mehboob Alam by the order of the Court. The complaint Ex.P-Q during the trial of this case has been relied upon by the prosecution of this case as a true document. During the investigation and Abdul Manaf told the name of the dacoits as Sultan-ul-Haq, Ashiq Ali, lrfan, Asim, Muhammad Azam and Saeed where after the police interrogated them arrested them, recovered the case property and found them guilty and have challaned them in the state case. Ashiq Ali is since P .O.
13. The learned Trial Court after evaluating the evidence available on record in light of arguments advanced from both sides, found the prosecution version proved beyond shadow of reasonable doubt resulting into conviction of the appellant (Irfan Ali, alongwith others, Asim Ali and Zahid Pervaiz) whereas Sultan-ul-Haq, Muhammad Azam and Muhammad Saeed were acquitted of the charge.
14. We have heard the arguments advanced by the learned counsel for the parties. We have also gone through the record with able assistance of learned counsel for the appellant as well as learned Deputy Prosecutor General.
15. The entire prosecution case against the appellant-Irfan Ali and Asim Ali (proclaimed offender) rests on the oral evidence of Mehboob Alam (PW-1) and Mst. Shahnila Mehboob (PW-2) who claim ed to be an eye witness to the incident which took place about 2.00 p.m. on 09.06.2006 wherein Mst. Adeela Kausar succumbed at the spot due to fire-arm injury , whereas, Mst. Kausar Parveen and Mehboob Alam received fire arm injuries and they were shifted to the Allied Hospital, Faisalabad. Later on, on 12.06.2006 Mst. Kausar Perveen also succumbed to the injuries at Hospital. The learned counsel for the appellant contended that Mehboob Alam (PW-1) and Mst.Shahnila Mehboob (PW-2) had made major contra dictions and dishonest improvements in the prosecution case and on this count their testimonies should be rejected as same has no substance. We, therefore, carefully scrutinized , the same. The injured complainant-Mehboob Alam (PW-1) deposed that he, his wife namely Mst. Kausar Parveen (the deceased) and his daughters namely Mst. Adeela Kausar (the deceased) and Shahnila Mehboob (PW-2) were present in his house when his brother-in-law Zahid Pervaiz arrived at his house and they started conversation. After few minutes of the arrival of Zahid Pervai z, the door was knocked whereupon Zahid Pervaiz opened the door and three young accused persons entered into his house, later their names were revealed i.e, (1) the accused having saltish color , smart body of average height with round face, known as Asim All (proclaimed offender), (2) the accused having saltish color , stout body of average height with round face aged 19/20 years, known as Irfan All (the appellant) and (3) the accused having saltish color , stout body of average height with long face, known as Ashiq All (since died), all were wearing shirts, and trousers. At the cost of repetitio n it is relevant to mention here that the complainant-Mehboob Alam (PW-1) deposed that Zahid Pervaiz told him (the complainant) and his wife Mst. Kausar Parveen (the deceased) that they (the accused persons) brought some news about his (the complainant) son namely Muhammad Zubair who was working at Rawalpindi and the accused persons also showed card of Muhammad Zubair . On hearing this, the wife of the complainant Mst. Kausar Parveen (the deceased) came in the residential room. Before they could understand, the accused persons abruptly took out their pistols and threatened that if they made hue and cry or moved they would be shot. Ashiq All (since dead) guarded them whereas the other two accused started searching the room and extorted Rs, 1,05,0001- and gold ornaments weighing 10- toles, Rs, 2000/- and mobile phone of the injured complainant (Mehboob Alam PW-1) lying in his pocket. In the meanwhile, Mst. Adeela Kausar (the deceased) who was standing in the Courtyard raised hue and cry whereupon the accused Ashiq All (since dead) made straight firing on her (Adeela Kausar). Thereafter on the indication of Zahid Pervaiz (since acquitted) Irfan All (the aprellant) fired at the - injured complainant (Mehboob Alam PW-1) which landed at supropub ic region, whereas the accused Asim Ali (proclaimed offender) fired at Mst. Kausar Parveen (the deceased) which landed at her belly. Besides the injured complainant-Mehboob Alam (PW-1), her daughter namely Mst. Shahnila Mehboob (PW-2) is also eye witness. A's per prosecution version Mst., Shahnila Mehboob (PW-2) informed the injured complainant (PW.1 ) that the accused ,. persons had made firing upon the injured complainant and his wife on the indication of Zahid Pervaiz (since acquitted).
16. We straightaway noted that the injured complainant-Mehboob Alam (PW-1) has admitted during cross- examination and deposed that, It is correct that regarding this occurrence F.I.R. No, 205/06 was registered at the police station Saddar Gojra." It is not out of context to mention here that it can be noticed that initially the case projected in F.I.R. was that the accused-Zahid Pervaiz (the complainant of F.I.R.) madg oral complaint (Ex.PQ) at Pul Nehar Chak No, 178-GB to Abdul Ghafoor , S.I, who was on patrolling duty alongwith other pdlice personals, as the first information report (Ex.PQ/1) in the case, s on the basis of which the investigation was commenced. A perusal of the said report (Ex.PQ/1) shows that the incident had taken place inside the house of Mehboob Nam (PW-1). The F.I.R. (Ex.PQ/1) had been lodged against three (3) unknown accused persons who were armed with firearms and that the incident took place at about 2.00 p.m. on 09.06.2006 wherein Mst. Adeela Kausar succumbed at the spot ,due to fire arm injury whereas Mst. Kausar Parveen and Mehboob Alam received fire-arm injuries and they were shifted to the Allied Hospital, Faisalabad. 'On 12.06.2006 Mst. Kausar Parveen also succumbed to the injuries at Hospital. It is significant that he (Zahid Pervaiz the complainant of FJ.R.) did not name Irian All (the appellant), Asim Ali (proclaimed offender) and Ashiq Ali (since died) as the accused in the first information report (Ex,PO./1), lodged soon after the occurrence. At a later stage on 12.03.2007, after thoughtful deliberations, the case was then developed so as to implica te Zahid Pervaiz (since acquitted) as accused by the injured complainant (in private complaint), Mehboob Alam (PW-1) being an injured witness of the F.I.R. (Ex.P Q/1). The injured complainant-Mehboob Alam (PTV -1) has made dishonest improvements in his statement before the Court. We straightaway come to the material improv ements/ discrepancies/contradictions in the prosecution evidence brought on the record by' the defence. Abdul Ghafoor , S.I. (PW-11), the Investigating Officer, deposed that he recorded the statement under Section 161 Cr.P.C. of Mehboob Alam and Kausar Parveen on 10.06.2006." Contrary to this the injured complainant-Mehboob Alam PW-1) deposed that "my statement was not recorded during the investigation by the police, as I was lying injured at Allied Hospital, Faisalabad." However , the injured complainant-Mehboob Alam (PW-1) admitted during cross-examination and deposed that, "it is correct that after six seven days of the occurrence I was produced by the police before Civil Judge/Magistrate where my statement under Section 164, Cr.P.C. was recorded." Abdul Ghafoor , S.I. (PW-11) deposed that, "It is correct that Mahboob Alam was produced by me before Faiz Ahmed Ranjha Civil Judge/Judicial Magistrate for recording the statement of Mehboob Alam under Section 164, Cr.P.C." In statement under Section 164, CrP.C. (Ex.DC) the injured complainant - Mahboob Alam had narrated entirely different mode and manner of the occurrence as alleged by the injured complainant-Mehboob Alam (PW-1) and eye witness (PW-2) before the Court. It cast serious doubt about the veracity and credibility of the injured complainant (PW-1). In statement 164, Cr.P.C. the injured complainant had not mentioned that Zahid Pervaiz was also present or the day or time of occurrence in his (the complainant) house and he also had not supported the prosecution version in respects of mode, manner and description of accused persons. The injured complainant for the first time named Zahid Pervaiz as accused at the time of filing private complaint after lapse of about nine months. From the prosecution evidence it reveals that dispute arises between the injured complainant (PW-1) and Zahid Pervaiz over custody of looted cash and other property stated to be recovered by the police as case property which was taken into possession by the complainant of F.I.R. (Zahid Pervaiz) on superdari from the Court. The injured complainant-Mehboob Alam (PW-U admitted during cross-examination that first of all he (Mehboob Alam (PW-1) demanded the cash (case property) from Zahid Pervaiz as the same belonged to him but Zahid Pervaiz refused to hand over to him; the contention of the accused Zahid Pervaiz was that he (Zahid Pervaiz) was liable to produce the case property in the Court as same was handed over to him Zahid Pervaiz b the Court on superdari that he moved application for cancellation of superdari on 04.12.2006 and at that time he (Mehboob Alam (PW-1)) had not stated in his application that Zahid Pervaiz is one of the accused and has made dishonest improvements in his statement before the Court. The injured complainant-Mehboob Alam (PW-1) deposed during cross-examination that, "I have told in Ex.DA that then they came to the house of Ashiq in a car of saeed accused, confronted with Ex.DA where in it is not so recorded. I recorded in Ex-DA that at the signal of Zahid Pervaiz I was fired at by one of the assailants, confronted with Ex.DA where in it is not so recorded. I recorded in Ex.DA that my daughter Shahnila told me in hospital that her mamoo (Zahid Pervaiz) gave a signal and then thereafter one assailant had fired with a pistol at me, confronted with Ex.DA where in it is not so recorded. I got recorded in my statement Ex.DA that at the time of occurrence my daughter Shahnila was present at the time of occurrence and she had also witnessed the occurrence, confronted with Ex.DA where in it is not so recorded." The improvements and discrepancies in the evidence of the injured complainant- Mehboob Alam (PW-1), was material in nature and same is enough proof for disbelieving and discrediting his evidence. In such circumstances, witness 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 just Supreme Court of Pakistan in the case of Muhammad Rafique and others v. The State and others" (2010 SCM R 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."
17. We have also carefully gone through the evidence of Mst. Shahnila Mehboob (PW-2), the eye witness, but we do not think we can place any reliance on it for the purpose of maintaining the conviction of the appellant-lrfan All and Asim All (proclaimed offender). The evidence suffers from serious infirmities. It is not necessary to reiterate them, but it will be sufficient if we refer only to one infirmity which, in our opinion, is of the most serious character .
Though according to this witness, she saw the occurrence, but she narrated about the occurrence to his father about three days after the occurrence in Allied Hospital. Contrary to this the injured complainant-Mehboob Alam (PW-1) deposed during cross-examinatio n that, "My daughter Shahnila informed me about the occurrence on the next day of the occurrence in hospital. The statement of my having saltish color , stout body of average height with long face, known as Ashiq All (since died), all were wearing shirts and trouser . Ashiq Ali (since dead) guarded them whereas the other two accused started searching the room and extorted Rs, 1,05,000/- and gold ornaments weighed 10-toles, Rs, 2000/- and mobile phone of the injured complainant (Mehboob Alam PW-1) lying in his pocket. In the meanwhile, Mst. Adeela Kausar (the deceased) who was standing in the Courtyard raised hue and cry whereupon accused Ashiq Ali (since dead) made straight firing on her (Adeela Kausar). Thereafter on the indication of Zahid Pervaiz (since acquitted) Irfan Ali (the appellant) fired at the injured complainant (Mehboob Alam PW-1) which landed at supropubic region, whereas accused Asim Ali (proclaimed offender) fired at Mst. Kausar Perveen (the deceased) which landed at her belly. Whereas Abdul Ghafoor , S.I. (PW-11), the Investigating Officer, deposed that, "It is correct that the F.I.R. is silent about the names of the accused but it contained descriptions of the accused." It is also relevant in this connection to bear in mind that the complainant (PW-1) in the statement under Section 164, Cr.P.C., recorded by Civil Judge/Magistrate, the complainant-Mehboob Alam (PW-1) did not name Irfan Ali (the appellant), Asim Ali (proclaimed offender) and Ashiq All (since died) as having taken any part in the incident. The injured complainant Mehboob Alam (PW-1) has also made dishonest improvements in his statement before the Court. The injured complainant-Mehboob Alam (PW-1) deposed during cross-examination that, "I have stated in Ex.DA that Saeed accused brought the other accused in his car and he guarded the occurrence at the time of occurrence, confronted with Ex.DA where in it is not so recorded. I got recorded the names of all the accused in my statemen t Ex.DA as well as in my private complaint, confronted with Ex.DA where in names of accused are not mentioned. I got recorded in Ex.DA that which of the accused has acted in that manner or otherwise, confronted with Ex.DA the role of every accused with specification or otherwise is not mentioned. I did not mention the name of Zahid Pervaiz as an accused in my statement under Section 164, Cr.P.C.
It is correct that I have not mentioned in the said statement any role played or criminal role in my statement under Section 164, Cr.P.C." These are the material contradictions of PW 1's testimony , among statement under Section 164, Cr.P.C. The entire prosecution story is silent on the point that how the comp lainant came to know about the accused persons who were unknown. Of course, in the statement the complainant (PW-1) had stated that there were three unknown accused but since, the names of all the accused were brought on record by Zahid Pervaiz (the complainant of F.I.R. and accused in private complaint) on 22.06.2006 throug h his supplementary statement (Exh.DB) based on extra-judicial confession made by accused-Muhammad Azam (since acquitted) on .21.06.2006 in presence of Abdul Manaf son of Fazal Muhammad (not produced as witness) and on the basis of said alleged extra judicial confession the accused were named in the F.I.R. We fail to understand as to what prevented the complainant (PW-1) to produce Abdul Manaf to proof alleged extra judicial confession. At the trial, of course, an effort was made to implicate these accused but then we cannot lose sight of the fact that the complainant Mehboob Alam (PW 1) had given entire different description of the accused persons in his statement under Section 164, Cr.P.C. (Exh.DC).
19. Moreover , it is noticed that Abdul Ghafoor (PW-11). SI-Investigating Officer deposed during examination-in-chief that he collected empties from the place of occurrence where Mst. Adeela Kausar , Mst. Kausar Parveen and Mahboob Alam received fire-arm injuries, when he inspected the place of occurrence and he secured crime empties of 30.bore pistols vide recovery memos. Ex-PU, Ex.PV and Ex.PX. The empties recovered from the spot were sent, to. Forensic Science Laboratory Punjab, Lahore on 26.06.2006.
Abdul Ghafoor (PW-11) S.I.-Investigating Officer deposed during cross-examination deposed that, "on 23.06.2006 I arrested Muhammad Azam, Sultan-ul-Haq, Irfan Ali and Asim Ali accused." He (PW- 11) also deposed that, "it is correct that during investigation Muhammad Yaqoob 385/C has deposite the crime empty preserved from the place- of occurrence by me on 29.06.2006 and he also had deposited the crime weapon 30 bore pistols on 05.08.2006 in the Forensic Science Laboratory, Lahore." In these circumstances no reliance can be placed upon the recovery. Thus, positive report of Forensic Science Laboratory Punjab, Lahore, Ex.PZ becomes inconsequential.
20. As far as alleged recovery of Rs, 20,000/- at the instance of Han All (the appellant) is concerned, we have noted that domination and marks of identification of the currency notes has not been mentioned by the complainant (PW-1). There is no identification memo. of the recovered currency notes (P-12) prepared in the case to show that the recovered currency notes were the same which were looted during the occurrence and identified by the complainant. As far as recovery of computerized national identity card of Zahid Pervaiz is concerned, we have noted that persecution failed to establish that the computerized national identity card of Zahid Pervaiz was also robbed. So the recoveries of currency note and computerized national identity card of Zahid Pervaiz is of no avail to the prosecution case.
21. Our careful appraisal and indepe ndent analysis of the evidence on the record, coupled with the statement under Section 164, Cr.P:C. (Exh.DC) of the complainant recorded by the learned judicial Magistrate, the prosecution evidence deserves to be rejected, which have created an impression on our minds that the prosecution has failed to prove the case against the appellant-lrfan Ali and Asim Ali (proclaimed offender) beyond a reasonable doubt. The deposition of PW-1 and PW-2 before the Court is not of sterling quality . The appellant-Irfan Ali, therefore, deserves to be given the benefit of doubt and acquitted. There is-chain of judgments of the superior Courts of the country that benefit of even slightest doubt would be resolved in favou r of the accused and that too as matter of right. Respectful reliance in this regard is placed on the judgment of augu st Supreme Court of Pakistan in the case of "T ariq Pervez v . The State" ( 1995 SCMR 1345 ) wherein it has been held as under:-- ' "Benefit of doubt, grant of---For giving benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubts---If a simple circumstance creates reasonable doubt in a prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right."
22. Result of the aforesaid discussion is that the complainant-Mehboob Alam (PW-1) had made dishonest improvements. Under these circumstances, his testimony required corroboration. The above facts reveal that the complainant-Mehboob Alam (PW-1) took different stand in his statement under Section 164, Cr.P.C. (Ex.DC) and statement before the Court. Thus, his statement is not only self-contradictory so as to disbelieve, but his statement is not corroborated with any other evidence. Under these circumstances, it is unsafe to base the conviction of accused on his testimony , which cannot be said to be trustworthy in the facts and circumstances of the case. It becomes manifestly clear that the prosecution has miserably failed to prove the guilt of the accused beyond reasonable doubt. On careful examination of entire evidence, we are of the view that learned Addl. Sessions Judge committed grave illegality in convicting the appellant for committing the offences without any legal evidence worthy of credit available on record.
23. We, therefore, accept in toto Criminal Appeal No, 544-J of 2014 filed by Irfan Ali, appellant, as a result whereof conviction and sentence recorded by the learned Trial Court vide judgment dated 17.02.2010 is set aside and the appellant-Irfan Ali and Asim Ali (proclaimed offender) are ordered to be acquitted of the charge in a private complaint, offences under Sections 302, 396, 148, 149, P.P.C., in case F.I.R. No, 205/2006, dated 09.6.2006, under Sections 302, 394, 412, 109, 148, 149, P.P.C., at Police Station Sadar Gojra, District Toba Tek Singh and Irfan Ali son of Farzand Ali, Caste Rajput, resident of Street No, 3, Pathan Chowk, Faisa labad is directed to be released forthwith if not required in any other case.
24. Murder Reference No, 160 of 2010 forwarded by the learned Trial Court for confirmation of sentence of death inflicted upon the convicts fails, which is answered in NEGATIVE.
25. We may hasten to add that though Asim Ali, co-accused of the appellant was present during trial but later on, at the time of pronouncement of judgment of learned Trial Court, he (Asim Ali, co-accused) was skipped from the Court and ultimately declared proclaimed offender but since the infirmities attached to the case of the appellant- lrfan Ali are the same which attach to his case also, we cannot deny the benefit of our judgment to him (Asim Ali, co-accused) also only because he has not filed any appeal against his conviction and sentence before us. We give him the benefit of the doubt also and set aside his conviction and sentence in the same manner as we set aside the conviction and sentence of the appellant-lrfan Ali by giving him the benefit of the doubt.
26. Respectful reliance in this regard is placed on the judgment of august Supreme Court of Pakistan in the case of "Muhammad Aslam and 5 others v . The State" ( 1972 SCMR 194 ) wherein it has been held as under:-- ' "We may observe here that although appellant Muhammad Aslam has absconded during he pendency of the present appeal and has remained absconding uptil now, the benefit of our judgment should be given to him also in order to do complete justice in the case. We, therefore, do not find it necessary to postpone the hearing of the case of Muhammad Aslam until big presence before the Court."
' Similarly , reliance is also placed on the judgment delivered by a learned Division Bench of this Court in the case of "Muhammad Ashraf and others v . The State and others" (PLD 2015 Lahore 1 ).