ABDUL SAMI KHAN, J.---Maqbool Arshad Sajjad Hussain, Latif t Mithu and Ramzan Bali appellants alongwith Muhammad Asif, Rabnawaz, Waheed Ahmad @ Waheed Murad, Haqnawaz, Abid Hussain and Muhammad Ramzan @ Pasha (acquitted accused) were tried in private complaint under sections 302, 324, 148, 149, P.P.C., Police Station Saddar Toba Tek Singh, by the Additional Sessions Judge, Toba Tek Singh, who, vide judgment dated 07.04.2006, convicted and sentenced Maqbool Arshad Sajjad Hussain, Latif @ Mithu and Ramzan @ Bali appellants as under:- Maqbool Arshad @ Sajjad Hussain and Ramzan @ Bali appellants:- * Under section 302(b), P.P.C. Read with section 34, P.P.C. To under go imprisonment for life each with direction to pay a sum of Rs.50,000/- each to the heirs of the deceased by way of compensation under section 544-A, Cr.P.C. And in case of default thereof, to further undergo S.I. For six months. The benefit of section 382-B, Cr.P.C. Was also extended to the convicts.
Latif @ Mithu appellant:- * Under section 302(b), P.P.C. Read with section 34, P.P.C. To undergo imprisonment for life with direction to pay a sum of Rs.50,000/- to the heirs of the deceased by way of compensation under section 544-A, Cr.P.C. And in case of default thereof, to further undergo S.I. For six months. * Under section 324, P.P.C. To undergo five years R.I. along with fine of Rs.20,000/- and in case of default thereof, to further undergo S.I. For three months. * Under section 337F(iii), P.P.C. To pay Daman to the tune of Rs.20,000/- to the injured and in case of default thereof, he was ordered to be remained in jail. The benefit of section 382-B, Cr.P.C. Was also extended to the convict and his sentences were ordered to run concurrently.
However, through the same judgment, co-accused namely Muhammad Asif, Rabnawaz, Waheed Ahmad @ Waheed Murad, Haqnawaz, Abid Hussain and Muhammad Ramzan @ Pasha were acquitted of the charge by the learned trial court while extending benefit of doubt to them.
2. Maqbool Arshad @ Sajjad Hussain and Latif @ Mithu appellants have filed Criminal Appeal No.692 of 2006 against their conviction and sentences, while Ramzan @ Bali appellant has filed Criminal Appeal No.743 of 2006 against his conviction and sentences. The complainant has also filed P.S.L.A. No.67 of 2006 against the acquittal of Muhammad Asif, Rabnawaz, Waheed Ahmad @ Waheed Murad, Haqnawaz, Abid Hussain and Muhammad Ramzan @ Pasha and Criminal Revision No.470 of 2006 for enhancement of the sentences awarded to Maqbool Arshad @ Sajjad Hussain, Latif @ Mithu and Ramzan @ Bali respondents. Since all these matters have arisen out of one and the same judgment dated 07.04.2006, passed by learned Additional Sessions Judge, Toba Tek Singh; therefore, I propose to decide the same together through this single judgment.
3. Initially Mst. Fareeha Naveed moved written application regarding the murder of her father Naveed Alam before the Station House Officer, Police Station Saddar Toba Tek Singh and FIR No.17/2004 dated 01.02.2004 was chalked out under sections 302, 324, 148, 149, P.P.C. Being dissatisfied with the investigation conducted by the police, Mst. Fareeha Naveed complainant filed private complaint against the accused. Succinctly the facts of the prosecution's case set forth in the private complaint are that on 01.02.2004, at about 11:00 a.m. Mst. Fareeha Naveed complainant along with her father Naveed Alam, brothers Basit Naveed and Yasir Naveed were coming to their house, situated at Chak No.390/JB from their fields. On the way, two cars bearing registration No.FDR/7656 (2D) and No.5435 (Toyota Corolla) stopped in front of them, wherefrom, Khurshid Alam armed with pump action, Muhammad Asif armed with pistol .30 bore, Rabnawaz armed with pistol .30 bore, Latif @ Mithu armed with repeater .12 bore, Ramzan @ Bali armed with rifle .7mm, Waheed Ahmad armed with rod, Haqnawaz armed with revolver, Sajjad Hussain and Abid Shah armed with pistols .30 bore, Muhammad Ramzan @ Pasha armed with pistol and one unknown came out. They caught hold Naveed Alam, dragged him on the earth, abused and threatened to murder him. In the meantime, Khushid Alam accused fired with pump action .12 bore which hit Naveed Alam on his left and right groin. After that the remaining accused also started firing and one fire shot of accused Latif @ Mithu hit Yasir Naveed on his shoulder. The accused ran away in their cars while making firing and creating harassment. The occurrence was witnessed by the complainant and her brothers.
The motive behind the occurrence was the dispute of agricultural land between the deceased and his brother Khurshid Alam. Later on Naveed Alam expired in hospital due to the injuries sustained by him.
4. The investigation of the case was conducted by Sabir Hussain S.I./I.O., who, after completion of investigation, prepared report under section 173, Cr.P.C. And submitted the same before the Court.
Feeling dissatisfied with the investigation conducted by the investigating officer, Mst. Fareeha Naveed complainant filed private complaint under sections 302, 324, 148, 149, P.P.C. And after the usual formalities, the accused were summoned to face the trial. At the commencement of trial, the learned trial court after supplying copies of the documents required under section 265-C, Cr.P.C. To the appellants and their co-accused, framed charge against them, to which they pleaded not guilty and claimed trial. To substantiate its version at the trial, the prosecution produced as many as ten witnesses before the learned trial court and the learned trial court also recorded statement of the investigating officer as court witness. Ocular account was furnished by Mst. Fareeha Naveed complainant (PW-9) and Yasir Naveed injured (PW-10). Medical evidence was furnished by Dr. Zia Aziz (PW-1), who conducted postmortem examination on the dead body of Naveed Alam deceased and Dr. Muhammad Khalid (PW-2), who medically examined Yasir Naveed injured (PW-10) as well as Naveed Alam (deceased) after the occurrence. The learned trial Court has recorded the statement of Sabir Hussain S.I./I.O. As CW-1, who testified about the investigation conducted by him.
After placing on record the report of Chemical Examiner (Ex.PAA), reports of Forensic Science Laboratory (Ex.PBB and Ex.PCC) and the report of Serologist (Ex.PDD), the prosecution closed its evidence.
5. In their statement recorded under section 342, Cr.P.C. The accused denied and controverted all the allegations leveled against them by the prosecution and professed their innocence. However, neither the appellants nor the acquitted accused had opted to make statements on oath under section 340(2), Cr.P.C. And they also did not produce any evidence in their defence.
6. Upon conclusion of the trial, the learned trial court after finding the prosecution's case against Maqbool Arshad @ Sajjad Hussain, Latif Mithu and Ramzan @ Bali appellants to have been proved beyond reasonable doubt, convicted and sentenced them as mentioned and detailed in paragraph No.1 of this judgment, whereas co-accused Muhammad Asif, Rabnawaz, Waheed Ahmad @ Waheed Murad, Haqnawaz, Abid Hussain and Muhammad Ramzan @ Pasha were acquitted by giving them the benefit of doubt. Hence, these appeals and the connected matters before this Court.
7. Learned counsel for the appellants, in support of these appeals, contend that the appellants are absolutely innocent, they have been falsely involved by the complainant in the instant case with mala fide intention and ulterior motive; the complainant party has already effected compromise with the main accused Khursheed Alam, who fired fatal shot at Naveed Alam father of Mst.Fareeha Naveed complainant and Yasir Naveed injured, while the appellants have been made scapegoats on account of previous grudge, otherwise, they had nothing to do with the alleged occurrence; no injury on the person of Naveed Alam deceased has been attributed to the appellants; similarly, Maqbool Arshad @ Sajjad Hussain and Ramzan Bali appellants have also not been attributed any injury on the person of Yasir Naveed injured, while the injury attributed to Latif @ Mithu appellant at the shoulder of Yasir Naveed injured is the result of exaggeration and improvement and even otherwise, the ocular account in this regard is in direct conflict with medical evidence; the appellants had no motive to commit the alleged occurrence and the person with whom motive part of the prosecution's case was attached has already been got acquitted by the complainant party; there is no evidence against the appellants that they shared common intention with the main accused to murder Naveed Alam deceased; the recoveries were planted on the appellants only to strengthen the prosecution's case, which otherwise, are of no use in the absence of any positive report of Forensic Science Laboratory. Concluding the arguments, learned counsel submit that the prosecution case is full of glaring defects, legal infirmities and material irregularities and the impugned judgment has not been recorded after careful and proper consideratiop of the relevant facts and circumstances of the case, therefore, the appellants deserve clean acquittal from the case.
8. On the contrary, learned Deputy Prosecutor General assisted by learned counsel for the complainant vehemently opposes the contentions raised by learned counsel for the appellants and submits that the appellants as well as the acquitted co-accused are nominated not only in promptly lodged FIR, but also in the private complaint; the appellants as well as the acquitted co- accused shared common intention with the main accused Khursheed Alam and had they not accompanied accused Khusheed Alam at the time of occurrence, he would have not been in a position to commit murder of Naveed Alam deceased; Khursheed Alam accused was acquitted on the basis of compromise with the legal heirs of the deceased and his acquittal does not effect the case of the complainant against the remaining accused; the ocular evidence is in line with medical evidence and the case of the complainant is duly corroborated by the recovery of weapons of offence from the appellants; the accused failed to bring on record anything on the basis of which it could be imagined that the eye-witnesses have made false statements against them or that they have become false witnesses on account of any ulterior motive; coming to the connected petition against acquittal and revision, learned counsel for the complainant strenuously contends that although the prosecution had successfully proved its case to the extent of all the accused nominated in FIR (Ex.PK/1) as well as in private complaint (Ex.PQ), but the learned trial Court has committed material irregularities and illegalities while acquitting accused Muhammad Asif, Rabnawaz, Waheed Ahmad @ Waheed Murad, Haqnawaz, Abid Hussain and Muhammad Ramzan @ Pasha, so the judgment of the learned trial Court to that extent is not maintainable in the eyes of law. While stressing to maintain conviction of Maqbool Arshad @ Sajjad Hussain, Latif @ Mithu and Ramzan @ Bali appellants, learned counsel for the complainant has prayed for enhancement of their sentences from life imprisonment to death as well as for conviction and sentence of the acquitted co-accused.
9. I have heard the arguments advanced by learned counsel for the appellants, learned Deputy Prosecutor General as well as learned counsel for the complainant and have gone through the record with their able assistance. It has been noticed that the occurrence regarding the murder of Naveed Alam deceased, as per FIR (Ex.PK/1) as well as private complaint (Ex.PQ) took place on 01.02.2004 at 11:00 a.m. And the matter was reported to the police by Mst. Fareeha Naveed complainant (PW-9) on the same day at 11:45 a.m. By submitting written application (Ex.PK) before Sabir Hussain S.I./I.O. (CW-1), when he was present at Saim Nallah Bridge near District Headquarter Hospital, Toba Tek Singh. Consequently, FIR (Ex.PK/1) was chalked out at 12:05 p.m. At Police Station Saddar Toba Tek Singh, situated at a distance of 16 kilometers from the place of occurrence. It has further been noticed that in the FIR (Ex.PK/1), general role of firing is attributed to the appellants and the acquitted co-accused without specifically assigning any injury on the person of Naveed Alam deceased or Yasir Naveed injured (PW-10) and later on at the time of filing private complaint, Mst.
Fareeha Naveed complainant (PW-9) exaggerated her previous stance taken in written application for registration of FIR (Ex.PK) and attributed specific role of causing firearm injury at the shoulder of Yasir Naveed injured (PW-10) to Latif Mithu appellant in her private complaint (Ex.PQ).
Similarly, Mst. Fareeha Naveed complainant (PW-9) attributed both the injuries sustained by the deceased to Khursheed Alam accused by making another material improvement in her private complaint (Ex.PQ). It is worthy to mention here that the FIR (Ex.PK/1) was lodged on 01.02.2004, while the private complaint (Ex.PQ) was filed by the complainant before the learned Area Magistrate concerned after the elapse of five months and eleven days of registration of FIR (Ex.PK/1) and keeping in view the aforementioned facts, it can safely be held that the complainant consumed this period to consult over the matter with some legal expert and then filed private complaint (Ex.PQ).
10. Coming to the ocular evidence, Mst. Fareeha Naveed complainant (PW-9) and Yasir Naveed injured (PW-10) alongwith Basit Naveed (given up) have been cited as the eye witnesses of the instant occurrence. They all are daughter and sons of Naveed Alam deceased. As already discussed above, Mst. Fareeha Naveed complainant (PW-9) has attributed one fire shot sustained by the deceased to her real paternal uncle Khursheed Alam, while the other injury of the deceased and that sustained by Yasir Naveed injured (PW-10) were jointly attributed to as many as nine accused. During trial, Mst. Fareeha Naveed complainant (PW-9) as well as Yasir Naveed injured (PW-10) specifically attributed the injuries sustained by the deceased to Khursheed Alam accused and this fact has made it crystal clear that the appellants as well as the respondents in petition for special leave to appeal did not cause any injury whatsoever to the deceased.
So far as the injury attributed to Latif @ Mithu appellant is concerned, I have observed that in the private complaint (Ex.PQ), the injury on the shoulder of Yasir Naveed injured (PW-10) has been attributed to Latif @ Mithu appellant. In his statement before the learned trial Court as PW-10, Yasir Naveed injured also attributed his injury to Latif @ Mithu appellant, however, he was confronted by the defence with his statement under section 161, Cr.P.C. Got recorded by him on the day of occurrence and it was found that Yasir Naveed injured (PW-10) had made material improvement to strengthen his case against Latif @ Mithu appellant. Even otherwise, Sabir Hussain S.I./I.O. (CW-1) admitted before the learned trial Court that during the course of investigation, Latif @ Mithu appellant was found empty handed at the time of occurrence and no recovery could be effected from him.
11. Keeping in view the testimonies of Mst. Fareeha Naveed complainant (PW-9) and Yasir Naveed injured (PW-10), I am of the considered view that there are material contradictions in FIR (Ex.PK/1), private complaint (Ex.PQ) and the statements of eye-witness account. Both the complainant and the injured eye-witness have made material improvements to bring their testimonies in line with the private complaint (Ex.PQ), which was filed after the elapse of five months and eleven days with due deliberation and consultation. It is settled law that when a witness improves his statement to strengthen the prosecution case and the moment it is concluded that the improvement was made deliberately and with mala fide intention, the testimony of such witness does not remain reliable.
While holding so, I am fortified by the dictum of law laid down by the Hon'ble Supreme Court of Pakistan in the cases reported as "Syed Saeed Muhammad Shah and another v. The State" (1993 SCM R 550) and "Muhammad Rafique and others v. The State and others" (2010 SCM R 385), wherein, at page 396, the learned Apex Court of the country, has been pleased to observe 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".
As the improvements were made by the complainant and the eye-witness dishonestly and deliberately, which were duly confronted by the defence during cross-examination, therefore, the same have created serious doubt about their veracity and credibility and it is not safe to rely upon the evidence of such witnesses. Guidance can be sought from the case of "Akhtar Ali and others v. The State" (2008 SCM R 6) Hon'ble Supreme Court of Pakistan has held as under:- " It .... It is also a settled maxim when a witness improves his version to strengthen the prosecution case, his improved statement subsequently made cannot be relied upon as the witness has improved his statement dishonestly, therefore, his credibility becomes doubtful on the well-known principle of criminal jurisprudence that improvements once found deliberate and dishonest cast serious doubt on the veracity of such witnesses. See Hadi Bakhsh's case PLD 1963 Kar. 805."
Thus being so, I am not inclined to rely on the statements of Mst. Fareeha Naveed complainant (PW-9) and Yasir Naveed injured (PW-10) to maintain conviction and sentences of the appellants.
12. So far as the medical evidence is concerned, the injuries on the person of Naveed Alam deceased have been attributed to Khursheed Alam accused, who was got acquitted by the legal heirs of the deceased, which also include Mst. Fareeha Naveed complainant (PW-9) and Yasir Naveed injured (PW-10). So far as the injury on the person of Yasir Naveed injured (PW-10) is concerned, Dr. Muhammad Khalid (PW-2) observed a pallet injury on the back of his right shoulder.
Admittedly, Yasir Naveed injured (PW-10) was accompanying his deceased father at the time of occurrence and keeping in view the distance between the injured and the accused, possibility cannot be ruled out of consideration that one pallet from the fire shots made by Khursheed Alam accused hit Yasir Naveed injured (PW-10) when he tried to run away from the place of occurrence to save his life. Even otherwise, the injury on the back side of his shoulder is sufficient to hold that Yasir Naveed injured (PW-10) was not in a position to specify the accused, who had caused him this injury.
Apart from one pallet wound, Yasir Naveed injured (PW-10) has not sustained any injury, which fortifies the aforementioned possibility, because, had any cartridge specifically fired at Yasir Naveed injured (PW-10), he must have sustained more pallet injuries around his shoulder. Moreso, only one pallet entry wound was observed by the doctor (PW-2) on the back of right shoulder of Yasir Naveed injured (PW-10) which could not make its exit and no pallet could 'be recovered during his medical examination. These facts show that even the medical evidence did not support the case of the prosecution to the extent of appellants. Even otherwise, medical evidence can only confirm the seat and time of injuries and the kind of weapons used during the occurrence, but it does not point out as to which accused has caused injuries.
13. As far as the recoveries are concerned, nothing was recovered from Latif @ Mithu appellant.
Maqbool Arshad Sajjad Hussain appellant has been alleged in the FIR (Ex.PK/1) as well as in private complaint (Ex.PQ) to be armed with pistol .30 bore, but during investigation the investigating officer recovered repeater .12 bore from him. Similarly, rifle .7 mm has been shown to be recovered from Ramzan @ Bali appellant, however, it is an admitted fact that no injury to the deceased as well as the injured was caused with this weapon of offence. Even otherwise, the investigating officer failed to collect any crime empty from the scene of occurrence and in the absence of any positive report of the Forensic Science Laboratory, the recovery of weapons of offence is inconsequential and the same cannot be used in support of prosecution evidence.
14. The motive behind the occurrence was specifically attributed to Khursheed Alam accused, who was acquitted by the learned trial Court on the basis of compromise. No motive, or enmity of the appellants has been brought on record by the complainant side against the deceased so as to establish their participation in the occurrence and also to prove the sharing of common intention by them with main accused Khursheed Alam (since acquitted). Thus, I am not inclined to believe that the appellants shared' common intention with Khursheed Alam to commit murder of Naveed Alam deceased or to injure Yasir Naveed injured (PW-10).
15. As a result of what has been discussed above, I have arrived at an inescapable conclusion that the prosecution has miserably failed to ,prove its case against the appellants beyond reasonable doubt. It is settled law that not many circumstances in the prosecution story creating doubt against the accused are required rather a single circumstance creating a doubt is enough for the acquittal of accused. The Apex Court of the country has already held that in case of doubt, its benefit must go to the accused not as a matter of grace, but as of right. In this respect, reliance can be placed on the case of "Muhammad Akram v. The State" (2009 SCM R 230), wherein, at page 236, the Hon'ble Supreme Court of Pakistan, has held as under:- "13. The nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State (1995 SCMR 1345) that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right".
(emphasis supplied)
Consequently, the appeals filed by Maqbool Arshad @ Sajjad Hussain, Latif @ Mithu and Raman @ Bali appellants are allowed, their conviction and sentences recorded by the learned trial court are set aside and they are acquitted of the charge by extending the benefit of doubt to them. They are present in the Court on bail, their sureties stand discharged from the liability of surety bonds.
16. As regards Petition for Special Leave to Appeal No.67 of 2006 against the acquittal of Muhammad Asif, Rabnawaz, Waheed Ahmad @ Waheed Murad, Haqnawaz, Abid Hussain and Muhammad Ramzan @ Pasha respondents, this Court does not find any reason to differ with the finding arrived at by the learned trial court for their acquittal, because, the eye witness account of the prosecution's case has already been disbelieved while allowing appeals against conviction of Maqbool Arshad @ Sajjad Hussain, Latif @ Mithu and Ramzan @ Bali appellants in the preceding paragraphs. It is also well settled principle of law that if two views can be formed from perusal of evidence, the view in favour of the accused would prevail. Even otherwise, an appeal against acquittal has distinctive features and the approach to deal with the appeal against acquittal is distinguishable from appeal against conviction, because, presumption of double innocence is attached in the former case. An order of acquittal can only be interfered with when it is found on the face of it as capricious, perverse or arbitrary in nature, which are lacking in this case. Reliance is placed on Inayat Ullah Butt v. Muhammad Javed etc. (PLD 2003 SC 562). There is hardly any improbability or infirmity in the impugned judgment of acquittal recorded by the learned trial court, which being based on sound and cogent reasons does not warrant any interference by this court and is accordingly maintained. Hence this PSLA having no merit is dismissed.
17. So far as Criminal Revision No.470 of 2006 filed by the complainant seeking enhancement of sentences awarded to Maqbool Arshad @ Sajjad Hussain, Latif @ Mithu and Ramzan @ Bali respondents is concerned, since they have been acquitted after setting aside the conviction and sentences recorded by the learned trial court against them, this Revision Petition has become infructuous, which is accordingly dismissed.