ERUM SAJAD GULL, J.---Mazhar Hussain, Muhammad Mansha alias Chabba and Mst. Rubina alias Perveen Bibi (appellants) have filed the afore titled appeal challenging their convictions and sentences passed by the learned Additional Sessions Judge , Lahore vide judgment dated 02.05.2013 in case FIR No,345 dated 15.04.2006 registered under sections 302, 380, 411 and 34, P.P.C., at Police Station Harbanspura, Lahore. Sentences awarded to the appellants are as under:- "All the three accused Mazhar Hussain, Muhammad Mansha and Mst. Rubina @ Perveen are hereby convicted under section 302(b) read with section 34, P.P.C. As Ta'azir.
17. So far as the quantum of sentence is concerned; since it is not clear that out of three accused, which one has played a vital role in committing the murder of the deceased as there is no direct evidence/witness who might have seen the accused while committing the murder of the deceased but there is strong circumstantial evidence in the shape of "Wajj Takkar" evidence adduced by Ghulam Hussain PW.7 and Hidayat Ali PW.8; so while considering this circumstance as extenuating and mitigating one; the accused are sentenced to Life Imprisonment each for, the commission of Qalt-i-amd of Muhammad Sarfraz, brother . Of the complainant. Each convict shall also pay compensation to the tune of Rs,100,000/- to the legal heirs of the deceased as required under section 544-A, Cr.P.C. And in default of payment of compensation, to further undergo six months' SI.
The convicts are also extended benefit of section 382-B, Cr.P.C."
2. The complainant of the case Khizar Hayat, appeared before the trial court as PW-4. His statement before the trial court is hereby reproduced for narration of the facts of the case as under:- "On 14.4.2006, at about 11.00 p.m., a loaded truck of chaff arrived at the tall of my brother Sarfraz deceased of this case. The driver of the truck visited my house and told me that my brother was not attending his call, please call him and asked him to come his tall so that the chaff may be unloaded. I along with Amanat Ali, Sarfraz went to the house of Muhammad Sarfaz alias Sharfa my deceased brother. The door of the house of my brother was closed but it was not chained but inside room was opened and light was on. My brother was lying dead and his throat was cut with a sharp edged weapon. I went to the police station and reported the matter. My deceased brother has contracted love marriage with Mst. Parveen and accused Mst. Perveen along with Mansha committed the murder of my brother The IO recorded my statement and it was read over to me and 1 thumb marked it Exh.PA in token of its correctness. On the following day, I made supplementary statement before the police officer as Mansha and Robina accused were not present in the house. Ghulam Hussain PW and Hadayat Ali visited the house on the day of occurrence at about 10.00 p.m. And knocked the door and inquired from Mazhar Hussain about the deceased and he was informed that the deceased was not in the house. They also told that Mazhar Hussain, Robina alias Parveen, Muhammad Mansha alias Jappa has committed the murder of my brother Sarfraz. The accused also took away Rs,5 lacs after committing the murder of my brother."
3. After registration of the case the police proceeded with the investigation. On completion of the investigation, report under section 173, Cr.P.C. Was submitted in the trial court. Learned trial court after observing all the legal formalities provided under the Criminal Procedure Code framed the charge on 24.11.2006 against the appellants to which they pleaded not guilty, thereafter the trial commenced.
4. To prove its case the prosecution produced thirteen witnesses. Muhammad Iqbal, ASI as PW-1, Muhammad Nasir 10088/C as PW-2, Mirza Muhammad Baig, SI as PW-3, Khizar Hayat (complainant) as PW-4, Ch. Hameed ud Din as PW-5, Amanat Ali as PW-6, Ghulam Hussain as PW- 7, Hidayat Ali as PW-8, Nadeem Ahmad as PW-9, Zulfiqar Ali, SI as PW-10, Muhammad Muzaffar, ASI as PW-11, Khalid Mehmood 11131/C as PW-12, Zulfiqar Ali, SI as PW-13. Learned DDPP gave up PWs Sarfraz Ahmad and Amjad Ali,. 5989/C as being unnecessary and submitted the reports of Chemical Exh.P0, Exh.PP, Exh.PQ and the reports of the Serologist Exh.PR and Exh.PS. Thereafter, the prosecution evidence was closed.
5. The statements of the appellants were recorded under section 342, Cr.P.C. Who refuted the allegations levelled against them and opted not to appear as their own witness under section 340(2), Cr.P.C. Thereafter, the defence evidence was closed.
6. In reply to the question "Why this case was registered against you and why the witnesses have deposed against you?
The appellant Mst. Rubina replied as under:- "It was my arrange marriage with the deceased while the complainant was not happy over this relation. Before two days of this occurrence, I proceeded to District Sheikhupura to attend the pre marriage and marriage ceremony (Mehdi and Mayan) of my younger sister namely Mst. Parveen Bibi which was solemnized on 15.04.2006 at District Sheikhupura and I was remained there till 16th April, 2006 where I received information about the murder of my husband and I came back and the witnesses with the connivance of complainant involved me in this case to usurp the movable and immovable property (buffalo, house and currency notes). It is pertinent to mention here that the complainant was ousted by my husband since two years of occurrence and my husband and complainant was not on speaking terms, therefore, the witnesses under the influence of the complainant wrongly involved me."
The appellant Mazhar Hussain replied as under:- "In fact, I was an employee of the deceased and oftenly I and oftenly deceased visited different areas for purchase of chaff. Similarly, I proceeded to Patoki District Kasuir area to purchase the chaff and I returned on 16.1.2006 where I received an information that Sarfraz deceased has been murdered . By someone and police with connivance of Khizar Hayat wrongly involved me to usurp all the movable and immovable properties and currency notes, therefore, wrongly involved me."
The appellant Muhammad Mansha @ Chabba replied as under:- "During investigation, I produced so many witnesses regarding my plea of alibi which was admitted and the same fact has been attested by high rank police officials. It is also pertinent to mention over here that I have good relation with deceased and in-laws of Mst. Parveen Bibi, sister of Mst.
Rubina Bibi accused and I was invitee from both sides to attend the pre marriage and marriage ceremony in which I participated with my whole family members and movie of function is available with the husband of Mst. Parveen Bibi which police secured but did not produce before this Court due to mala fide and connivance of the complainant. I am also innocent in this case."
7. After conclusion of the trial, the learned trial court convicted the appellants with the above stated sentences herein this appeal.
8. Learned counsel for the appellants, in support of the appeal contended that it was an unseen occurrence and the appellants have falsely been implicated in this case; that the witnesses of wajtakkar i,e, Ghulam Hussain (PW.7) and Hadayat Ali (PW.8) are chance witnesses hence their evidence is not credible; that the natural witness i,e, truck driver was not produced either before the police or the trial court; that the complainant had also filed a private complaint in which he changed his stance taken in the FIR and narrated a totally different story; that during the course of police investigation, appellant Mansha was declared innocent; that appellant Mst. Robina alias Parveen was in Sheikhupura at the time of occurrence as she was attending the marriage ceremony of her younger sister; that the dead body of the deceased was recovered from a populated area and no witnesses from the locality were produced before the trial court; that the recoveries have been planted upon the appellants; that viewing from all angles the prosecution case is doubtful in nature and the appellants are entitled to be acquitted as it is a case of no evidence.
9. On the other hand, learned Additional Prosecutor General opposed this appeal on the grounds that the appellants are well nominated; that there is strong evidence of wajtakkar witnesses Ghulam Hussain (PW.7) and Hidayat Ali (PW.8) against the appellants; that the recoveries effected at the instance of the appellants connect them with the commission of the alleged crime; that the prosecution has proved its case to the hilt and as there is no merit in the appeal hence, the same be dismissed.
10. Arguments have been heard and the record has been perused.
11. Admittedly the occurrence was an unseen one committed in the early hours of the morning around 02:30 a.m. Muhammad Sarfraz (deceased) is the real brother of the complainant Khizar Hayat. The nominated accused of the FIR are Mst. Robina alias Parveen who is the widow of the deceased. Accused Muhammad Mansha alias Chabba is alleged to be the man with whom the wife of the deceased, appellant Mst. Robina alias Parveen was allegedly having an illicit relationship. The other accused/appellant Mazhar Hussain who was the employee of the deceased was later nominated in the supplementary statement of the complainant which was recorded on the next day of the occurrence. The wajtakkar witnesses Ghulam Hussain (PW.7) and Hidayat Ali (PW.8) were also for the first time introduced in the supplementary statement of the complainant.
12. The motive of the murder is alleged to be the illicit relationship between the accused/appellant Mst. Robina alias Parveen and the accused/appellant Muhammad Mansha but there is no substantial evidence on record to prove the same. The trial court has believed the motive on the sole statement of the complainant which has not been corroborated by any other evidence of any other resident of the locality or family member. The Investigating Officer Zulfiqar Ali Sub-Inspector who appeared as PW.13 declared the appellant Muhammad Mansha innocent during investigation, hence during police investigation the motive was disbelieved. The appellant Muhammad Mansha was granted bail by this court on 12.03.2008 and he remained on bail till the judgment was passed by the trial court. His bail granting order was never assailed by the complainant. It is a settled principle laid down by the Hon'ble Supreme Court of Pakistan in "Noor Muhammad v. The State and another" (2010 SCM R 97) that it is not necessary for the prosecution to establish motive in a case but if the prosecution sets up the motive of the occurrence then the onus is on the prosecution to prove the same. While scrutinizing the available record, the prosecution has failed to prove the motive and the same is declared to be disbelieved by this court.
13. The most important witness of the occurrence is the truck driver who allegedly informed the complainant that the deceased was not present at his shop (talh) on which the complainant then went to the house of the deceased and found the body of the deceased allegedly lying on the floor of the house of the deceased. In his cross-examination the complainant Khizar Hayat stated that the name of the truck driver was Nosher but he did not produce the said truck driver before the police nor got his statement recorded before the police. The Hon'ble Supreme Court of Pakistan has repeatedly held that non-production of a very important witness of the occurrence by the prosecution would create an impression that if the said witness appeared in the witness box he would not have supported the prosecution version. Reliance is placed upon "Ahmad Yar and others v. The State" (1998 SCM R 715), "Lal Khan v. The State" (2006 SCM R 1846) and "Muhammad Rafique and others v. The State and others" (2010 SCM R 385). To ascertain the fact that whether the body of the deceased was lying in the shop (talh) of the deceased or his house, the truck driver had to be produced by the prosecution, as being an independent witness, his evidence was very important to establish the case as set up by the prosecution.
14. The credibility of the eye-witnesses of the occurrence or any other prosecution witness, are ascertained by their unimpeachable statements which cannot be shaken by the defense during their cross examination or otherwise but when the eye-witnesses or the prosecution witnesses improve their statements during trial, the statements of such witnesses lose their credibility and cannot be relied upon resultantly no conviction can be upheld on such unreliable witnesses.
Reliance is placed upon "Muhammad Rafique and others v. The State and others" (2010 SCM R 385). The complainant after registering the FIR filed a private complaint (Exh.D/N) on 23.10.2007 in which a completely new version was set up by the complainant stating that he and Amanat Ali (PW.6) had themselves witnessed the occurrence, whereby the appellant Mazhar Hussain was holding the arms of his deceased brother, appellant Mst. Rubina alias Parveen was holding his legs while Muhammad Mansha appellant with his knife slit the throat of his deceased brother and on seeing the complainant and Amanat Ali they threatened them with dire consequences and then succeeded in escaping. The complainant recorded on oath his statement on 28.05.2007 and supported the version of the private complaint which has been exhibited as Exh.DE. The complainant then never pursued his private complaint and the same was then dismissed on 06.12.2007 for want of evidence. The complainant then for reasons best known to him preferred to pursue the State case only in which the occurrence was admittedly an unseen one occurrence and the whole case hinged on the circumstantial evidence. In his cross 'examination the complainant conceded that he had filed a private complaint but denied that he had changed his version. He also conceded that his private complaint was dismissed.
15. The two wajtakkar witnesses Ghulam Hussain (PW.7) and Hidayat Ali (PW.8) both admittedly reside in Nankana Sahib and on the night of occurrence allegedly had come to Lahore. Both these witnesses have been introduced through the supplementary statement of the complainant. It has been held in "Muhammad Rafique and others v. The. State and others" (2010 SCM R 385) and "Khalid Javed and another v. The State" (2003 SCM R 1419) that a supplementary statement can never be equated to an FIR as it is only a statement recorded under section 161, Cr.P.C. Which is not signed or thumb marked unlike an FIR which is a signed document and has an intrinsic evidentiary value.
16. Wajtakkar witness is actually a chance witness and evidence of such a witness is always accepted with great caution as such witnesses are introduced in such cases where the prosecution case is weak and lacunas have to be filled. Reliance is placed upon "Khalid Javed and another v. The State" (2003 SCM R 1419). The statements of Ghulam Hussain (PW.7) and Hidayat Ali (PW.8) are not confidence inspiring. Hidayat Ali (PW.8) stated in his cross-examination that before the occurrence, he had never visited the house of the deceased and Ghulam Hussain (PW.7) who is a close relative of the deceased stated that he had never seen appellant Mansha before and also he never attended the marriage of the deceased, so it is not certain if he had ever met appellant Mst. Rubina alias Parveen. The prosecution has failed to establish that if both these wajtakkar witnesses could identify the appellants. Admittedly, there were many neighbours around the house of the deceased but no neighbour stated that they heard noises coming from the house of the deceased nor did any one of them state that they saw the three appellants coming or going out of the house of the deceased.
17. The complainant stated in the FIR that the deceased had contracted a love marriage with appellant Mst. Rubina alias Parveen five years before the occurrence and since then was living separately from him. The plea of Mst. Rubina alias Parveen appellant/accused taken in her statement under section 342, Cr.P.C. Is that she had gone to attend the pre wedding ceremony of her younger sister in Sheikhupura two days before the occurrence. Further stated that the complainant was not on talking terms with her deceased husband and the complainant was ousted from the house by her deceased husband two years before the occurrence, therefore he falsely implicated her in this occurrence. Amanat Ali (PW.6) in his cross-examination stated that after the death of the deceased, his house was sold and categorically stated that the house was owned by the deceased. Hence, by involving the wife of the deceased in this murder case, the complainant succeeded in disinheriting her and sold the house of the deceased.
18. The alleged recoveries effected from Mst. Rubina alias Parveen and Muhammad Mansha appellants have no evidentiary value and are not I enough to uphold their convictions and sentences. As the Doctor Nadeem Ahmad who appeared as PW.9 stated that the viscera of the deceased was sent for examination to the laboratory and no drug or poison was found in the said report hence the recovery of Ativan tablets from the house of appellant Mst. Rubina alias Parveen cannot be said to have been administered to the deceased before being murdered. The blood stained churri was alleged to have been recovered on disclosure of the appellant Muhammad Mansha on 23.05.2006 that is more than one month after the occurrence from the house of the deceased which probably by that time was in the possession of the complainant. The said blood on the churri was never sent to the Serologist to ascertain if it was the blood of the deceased. No recovery was effected from the appellant Mazhar Hussain who was not even a nominated accused of the FIR and the said motive set up in the FIR was also not attributed to the appellant Mazhar Hussain.
19. The case in hand is one of circumstantial evidence. It has been held in a number .Of cases by the. Hon'ble Supreme Court of Pakistan that circumstantial evidence in unseen occurrence should be like a well-knit chain and each circumstance was to be connected with each other to make one complete chain and if even one link of the chain is missing this would entitle the accused to be acquitted by giving him the benefit of K doubt. Reliance is placed upon "Muhammad Hussain v.
The State" (2011 SCM R 1127), "Ibrahim and others v. The State" (2009 SCM R 407) and "Sh.
Muhammad Amjad v. The State" (PLD 2003 Supreme Court 704).
20. As reiterated above, the chain of circumstances in the case in hand are broken repeatedly and by no stretch of imagination it can be L said that the circumstantial evidence is so well-knit that it cannot be denied that all the appellants are guilty for the commission of the offence.
21. The prosecution has failed to prove its case beyond reasonable doubt. There is no substantial evidence on record to connect the appellants with the commission of the alleged offence. It is a settled principle that the prosecution has to .Prove its case beyond reasonable doubt. The honourable Supreme Court has held in "Muhammad Zaman v. The State and others" (2014 SCM R 749), that even a single doubt if found plausible was enough for acquitting an accused.
22. For the foregoing reasons, the instant appeal filed by the appellants/convicts Mazhar Hussain, Muhammad Mansha alias Chabba and Mst. Rubina alias Parveen Bibi is accepted and convictions and sentences awarded by the trial court through the judgment dated 02.05.2013 are hereby set- aside and the appellants are ordered to be acquitted of the charge in case FIR No,345 dated 15.04.2006 registered at Police Station Harbanspura, Lahore under sections 302, 380, 411 and 34, P.P.C. The appellants be released forthwith if they are not required in any other case.