SADAQAT ALI KHAN, J.---The instant Criminal appeal No.2267 of 2011 has been filed by Mst.
Musarat Bibi, Fayyaz Hussain Shah and Ghazanfar Ali Shah present appellants against the judgment dated 30.11.2011 passed by learned Addl: Sessions Judge, Kharian according to which appellants were convicted and sentenced as under:- "All the present three appellants were convicted under section 302(6)/34, P.P.C. And sentenced to life imprisonment for committing the Qatl-i-Amd of Rafique Hussain Shah deceased along with compensation Rs. 1,00,000/- each payable to the legal heirs of the deceased under section 544, Cr.P.0 and in default thereof further undergo six months S.I. Each" Benefit of section 382-B, Cr.P.C. Was extended to the present appellants stated above by the learned trial court in case FIR No. 384 dated 28.8.2009 under section 302/34, P.P.C. Police station, Dinga District Gujrat. (It is important to note here that Muhammad Siddiuqe Shah was also convicted through the impugned judgment along with present appellants but his appeal No. 376-J of 2011 has been accepted on 10.7.2014 by this court on the basis of compromise and he was acquitted).
2. The facts of the case have been stated by Muzaffar Shah complainant PW-8 in his statement before the trial court. The same statement is hereby reproduced for narration of the facts:- "On 28.08.2009 at 03:30 p.m. After Juma prayer I along with Asif Hussain PW, Riaz Hussain Shah PW were going to the house of my real Bhanja namely Rafique Shah deceased of this case. When we reached in the house of Rafique Hussain Shah, then we saw that accused persons namely Siddique Hussain Shah, Musarrat Bibi, Ghazanfar Ali Shah and Fiaz Hussain Shah all accused present in the Court were beating Rafique Hussain Shah with Danda, Sarya (iron rod) and iron hollow reed "phookani" which hit on different parts of the body of the deceased. During the incident Ghazanfar Shah accused present in the Court also inflicted iron rod blow on the head of the Rafique Shah deceased. After the occurrence accused persons fled away from the place of occurrence. Rafique Shah deceaseddied at the spot due to the injuries inflicted by the accused persons.
Motive behind the occurrence was some domestic dispute. After the occurrence I got recorded my statement to the I.0. My statement Exh.PA was read over to me and then I signed the same.
Siddique Shah accused is the real brother of Raflque Shah deceased while Musarrat Bibi is the wife of Siddique Shah. Accused persons Ghazanfar Shah is paternal nephew of Musarrat Bibi and accused Fiaz Shah is the Bhanja of Musarrat Bibi accused present in the Court".
3. After registration of the case, investigation started and on completion of the same report under section 173, Cr.P.C. Was submitted in the trial court.
4. Learned trial court after observing legal formalities provided under the Criminal Procedure Code framed the charge on 16.12.2009 against present appellants and his co-accused namely Siddique Hussain Shah (since acquitted by this court through judgment dated 10.7.2014) under section 302/34, P.P.C. To which they pleaded not guilty and prosecution evidence was summoned.
5. Prosecution produced Nazar Muhammad ASI as PW-1, Qaisar Javed constable PW-2, Mushtaq Ahmad constable PW-3, Dr. Muhammad Amjad PW-4, Muhammad Farooq H.0 PW-5, Yousaf Hussain Shah PW-6, Bashir Hussain Shah PW-7, Muzaffar Shah PW-8, Riaz Hussain Shah PW-9, Masood Ahmad Bhatti draftsman PW-10, Muhammad Yousaf SI PW-11 whereas PWs namely Shoaib Shah, Abid Hussain Shah and Asif Shah were given up by the prosecution being unnecessary and after producing documentary evidence i.e. Complaint Ex.PA, FIR Ex.PA/1, recovery memo. Of last worn clothes of the deceased Ex.PB, postmortem report Ex.PC, injury statement Ex.PD, inquest report Ex.PF, recovery memo. Of Sota Ex.PG, rough site plan Ex.PG/1, recovery memo. Of Phokni Ex.PH, recovery memo. Of blood stained earth Ex.PJ, scaled site plan Ex.PK, report of Chemical Examiner Ex.PM, report of Serologist Ex.PN and closed the prosecution evidence.
6. The medical evidence was furnished by Dr. Muhammad Amjad M.0 THQ Hospital Kharain PW-4 who stated that on 29.08.2009, he conducted postmortem examination on the dead body of Rafique Hussain Shah deceased and observed as under:- "EXTERNAL EXAMINATION ' It was dead body of young man weighing about 40/45 kg with 5 feet and 6 inches height. Rigor mortis was fully developed with PM staining. Eyes and mouth were closed and the face was pale.
Dead body was wearing white colour shalwar and Qameez with red colour lines in it.
EXTERNAL INJURIES
(I) Lacerated wound on top of head with fractured bone 2 x 1.5 cm
(2) Contused area on right leg measuring 8x4 cm.
(3) Contused area on right side measuring 5 x 5 cm
(4) Lacerated wound on front of left leg measuring 1 x 0.5.
(5) Area of contusion 10x7 cm in front of left thigh.
(6) Area of contusion on right hand 6x4 cm.
(7) Area of contusion 7x3 cm on front of right forearm.
(8) Area of contusion 9x6 cm in front of right deltoid area.
(9) Contused area 11 x 6 cm on left deltoid area.
(10) Area of contusion 4x3 cm on left hand.
(11) Area of contusion 10x6 cm on right buttock.
(12) Area of contusion 12x8 cm on left side of buttock.
(13) Area of contusion 7x4 on right side of back.
(14) Area of contusion 8x5 cm on left side of back.
(15) Area of contusion 2x1.5cm on right ear.
CRANIUM AND SPINAL CORD.
Scalp and skull were damaged. Brain on opening skull was clotted dark browns colour blood. While membrane, vertebra and spinal NAD.
ABDOMEN.
Stomach was contained semi digested food particles, small intestine and sits contents contained semi digested food particles, while large intestine and its contents were contained fecal matter, urinary bladder was empty, while the other organs were NAD.
THORAX NAD.
OPINION.
' After careful examination of the dead body internally and externally, I was of the opinion that the death was caused by intracranian haemorrhage which led to shock and death and injury No.] was sufficient to cause death in an ordinary course of nature in this person.
' Time between injuries and death was 2 to 5 hours and between death and postmortem was 10 to 18 hours".
7. On the other hand, statements of present appellants were recorded under section 342, Cr.P.C.
Who refuted the allegations so leveled against them but have not opted to appear as a witness under section 340(2), Cr.P.C. And also did not produce the defence evidence and in reply to question "why this case against you and why the PWs deposed against you?" the present appellant Musarrat Bibi replied as under:- "Deceased Rafique Shah was having a bad character whose mother was died in childhood 1 brought up the deceased. The deceased oftenly used to reside in the house of complainant (Muzaffar Shah) who is the maternal uncle of the deceased and accused Siddique Shah.
Deceased Rafique Shah oftenly used to tease their females as well as some village girls, because of these bad habits once a time, Muzaffar Shah (complainant), Zahid Shah beaten Rafique Shah deceased and was detained in Police lock up P.S. Dinga for four days because of these bad habits I have oftenly stopped Rafique Shah from doing bad activities. Moreover, Muzaffar Shah did not like me and he asked Siddique Shah many times to divorce me I have let down many times Muzaffar Shah complainant. Some unknown persons have murdered the deceased by conspiracy with Muzaffar Shah complainant, Siddique Shah accused and PWs. Due to above said grudge complainant and accused (Siddique Shah) has involved me in this case. Complainant Muzaffar Shah, Siddique Shah and other PWs involved the accused Ghazanfar Shah and Fayyaz Shah being my nephew. I along with my co-accused are innocent"
Likewise in reply to question "why this case against you and why the PWs deposed against you?" the present appellant Ghazafar Ali Shah replied as under:- "Deceased Rafique Shah was having a bad character whose mother was died in childhood Musarrat Bibi brought up the deceased. The deceased oftenly used to reside in the house of complainant (Muzaffar Shah) who is the maternal uncle of the deceased. Deceased Rafique Shah oftenly used to tease their females as well as some village girls, because of these bad habits once a time, Muzaffar Shah (complainant), Zahid Shah beaten Rafique Shah deceased and was detained in police lock up P.S. Dinga for four days because of these bad habits. Moreover, Muzaffar Shah did not like Musarrat Bibi wife of Siddique Shah and he told to Siddique Shah many times to divorce his wife because of this Musarrat Bibi let down many times Muzaffar Shah complainant.
Some unknown persons have murdered the deceased by conspiring with Muzaffar Shah complainant, Siddique Shah accused and PWs. Due to above said grudge and relatives of Musarrat Bibi complainant and accused (Siddique Shah) has involved me in this case. Complainant Muzaffar Shah, Siddique Shah and other PWs involved me in this case. 1 along with other co- accused namely Musarrat Bibi and Fayyaz Shah".
' Likewise, in reply to question "why this case against you and why the PWs deposed against you?" the present appellant Fayyaz Hussain Shah replied as under:- "Deceased Rafique Shah was having a bad character whose mother was died in child hood Musarrat Bibi brought up the deceased. The deceased oftenly used to reside in the house of complainant (Muzaffar Shah) who is the maternal uncle of the deceased. Deceased Rafique Shah oftenly used to tease their females as well as some village girls, because of these bad habits once a time, Muzaffar Shah (complainant), Zahid Shah beaten Rafique Shah deceased and was detained in police lock up P.S. Dinga for four days because of these bad habits, Muzaffar Shah did not like Musarat Bibi wife of Siddique Shah and he told to Siddique Shah many times to divorce his wife because of this Musarrat Bibi let down many times Muzaffar Shah complainant. Some unknown persons have murdered the deceased by conspiracy with Muzaffar Shah complainant, Siddique Shah accused and PWs. Due to above said grudge and relatives of Musarrat Bibi complainant and accused (Siddique Shah) has involved me in this case. Complainant Muzaffar Shah, Siddique Shah and other PWs involved me in this case. 1 along with other co-accused namely Musarrat Bibi and Ghazanfar Shah are innocent".
8. After conclusion of the trial, learned trial court convicted the present appellants Musarrat Bibi, Fayyaz Hussain and Ghazanfar Ali Shah with above stated sentence. Hence this appeal.
9. Leaned counsel for the appellants contended that:-
(i) the judgment of the trial court dated 30.11.2011 is against law and facts on the file and is liable to be set-aside;
(ii) it is submitted that the story of the prosecution is improbable and not believable;
(iii) it is further submitted that prosecution has failed to prove its case against the appellants beyond shadow of doubt and the learned trial court wrongly convicted present appellants in surmises and conjectures;
(iv) further submitted that motive is not attributed to the present appellants and nothing was recovered from or on pointing out of the appellants and lastly submitted for the acceptance of the appeal of the present appellant;
10. On the other hand, learned DPG assisted by the learned counsel for the complainant has vehemently opposed the appeal and requested for dismissal of the same and submitted that:-
(i) prosecution has proved its case beyond any shadow of doubt against the appellants with solid evidence and prayed for the dismissal of the present appeal.
11. I have heard the learned counsel for the parties and perused the record.
12. The detail of prosecution case as mentioned in the FIR EX.PA/1 recorded on the written application Ex.PA of Muzaffar Ali Shah complainant PW-8 has already been given in paragraph No. 2 of this judgment, therefore, there is no need to repeat the same to avoid repetition and duplication.
13. Place of occurrence is the joint residential house of Saddique Hussain Shah (acquitted accused) and Rafique Hussain Shah deceased, both are real brothers inter se.
14. Musarrat Bibi present appellant is wife of Siddiuqe Hussain Shah (acquitted accused) Ghazanfar Shah appellant is paternal nephew and Faiz Hussain Shah appellant is the Thanja' of Musarrat Bibi appellant.
15. Muzaffar Shah complainant PW-8 stated regarding motive of the occurrence in his statement Ex.PA recorded by him for registration of the FIR Ex.PA/1 as under:- {{URDU TEXT}}
16. Muzaffar Shah complainant PW-8 while appearing before the trial court reiterated above stated motive and did not give any detail of the dispute, however, he stated in cross-examination that deceased demanded his share of landed property from Siddique Shah (acquitted accused).
17. In view of the above, motive, if any, is not attributed to present appellants, rather same was attributed to Siddique Shah (acquitted accused).
18. Considering above stated facts, prosecution could not prove motive against present appellants.
19. Muzaffar Ali Shah complainant PW-8 stated in his statement Ex.PA regarding role of the present appellants and Siddique Shah (acquitted accused) as under:- {{URDU TEXT}}
20. In this way, Muzaffar Shah complainant PW-8 stated that present appellants and Siddique Shah (acquitted accused) collectively gave beating to Rafique Hussain Shah deceased and did not attribute specifically any injury to any of the appellants.
21. Dr. Muhammad Amjad PW-4 had conducted postmortem examination on the dead body of Rafique Shah deceased on 29.8.2009 detail of which has already been given in para No .6 of this judgment, so there is no need to repeat the same to avoid duplication and repetition. He observed 15-injuries on the person of Rafique Shah deceased. All injuries are contusion except injury No.1 which is lacerated wound on top of head with fractured bone 2x1.5 cm. Medical Officer further observed that injury No.1 only is the cause of death of the deceased. This injury No.1 was attributed jointly to all the three present appellants and Siddique Hussain Shah (acquitted accused) who has been convicted by the trial court through the impugned judgment along with present appellants but his criminal appeal No. 376-J of 2011 has been accepted on 10.7.2014 by this court on the basis of compromise and he was acquitted.
22. All the present three appellants could not be convicted against sole injury No.1 stated above which was attributed jointly to all the appellants and Siddique Hussain Shah acquitted accused.
23. Although, Muzaffar Shah PW-8 by making dishonest improvement stated in his statement before the trial court that Ghazafar Shah appellant inflicted Iron rod blow on the head of Raffique Shah deceased but it is settled law that 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 and his credibility becomes doubtful on the well- known principle of criminal jurisprudence that improvements once found deliberate and dishonest cast serious doubts on the veracity of the said witness. Reliance is placed on case titled Akthar Ali and others v. The State (2008 SCM R 6).
24. Even otherwise, occurrence took place in the house of Siddique Hussain Shah (acquitted accused) situated in village Monia whereas Muzaffar Shah complainant PW-8 who is maternal uncle of Rafique Hussain Shah deceased as well as Siddique Hussain Shah (acquitted accused) is resident of Dhakranwali and is not resident of the vicinity of the place of occurrence. He stated in cross-examination that the inter-se distance between Monia and Dhakranwali is about 3/4 miles and it takes half an hour while coming to Monia to village Dhakranwali on Bicycle. Muzaffar Shah PW-8 complainant could not establish his presence at the time of occurrence at the place of occurrence being a chance witness.
25. FIR had been lodged with noticeable delay as occurrence took place at 03:30 p.m on 28.8.2009 whereas FIR was registered on 7:30 p.m on 28.8.2009 and likewise, postmortem examination of the dead body had also been conducted with significant delay on 29.8.2009 at 02:30 a.m.
26. All these factors had pointed to a real possibility that murder in issue had remained un- witnessed and time had been consumed by the local police in procuring and planting eye- witnesses and cooking up a story for the prosecution.
27. Riaz Hussain Shah PW-9 eye-witness admitted in cross-examination that he arrived in the house of deceased at about 07:00 p.m. On the day of occurrence whereas occurrence took place on the same day on 03:30 p.m. Before four hours of his arrival.
28. In view of the above, both the eye-witnesses Muzaffar Shah PW-8 and Riaz Hussain Shah PW-9 (brother-in-law of Muzaffar Shah complainant PW-8) are not believable and their evidence is hereby disbelieved. Reliance is placed on case Muhammad Rafique v. The State (2014 SCM R 1698).
30(sic.) During investigation, nothing was recovered from Ghazafar Ali Shah and Fayyaz Hussain appellants and recovery of "Phonkani" P-4 from the possession of Musarrat Bibi has already been disbelieved by the trial court in paras No. 50, 51 and 52 of its judgment.
32(sic.) From the facts and circumstances narrated above, I am persuaded to hold that prosecution has badly failed to bring home guilt of the appellants to the hilt and the learned trial court was not justified in convicting them while relying upon untrustworthy/uncorroborated evidence deposed by interested witnesses which even otherwise is full of material contradiction especially unreliable story deposed by PWs. Resultantly, salutary principle of benefit of doubt is extended in favour of the appellants. The Criminal appeal No.2267 of 2011 filed by Mst. Musarat Bibi, Fayyaz Hussain and Ghazanfar Ali Shah present appellants is accepted and conviction and sentences awarded by the learned trial court through judgment dated 30.11.2011 against them are set aside and the appellants are ordered to be acquitted of the charge in case FIR No. 384 dated 28.8.2009 under section 302/34, P.P.C. Police station, Dinga District Gujrat and appellants Fayyaz Hussain Shah and Ghazanfar Ali Shah are ordered to be released forthwith if not required in any other case. However, Mst. Musrat Bibi is on bail. Her surety stands discharged.