' Sayyed Mazahar A.I Akbar Naqvi, J.--Mukhtar Hussain son of Ghulam Hussain, case Chohan, resident of Rodu Sultan, Tehsil and District Jhelum, appellant, along with Akhtar A.I, Kousar Abbas, Fakhar Abbas and Ghazanfar Abbas (since acquitted) was involved in case FIR No. 150/2006, dated 07.06.2006, offence under Sections 302, 34, 109, PPC, registered at Police Station 18-Hazari, District Jhang, at the instance of Bashir Ahmed son of Karam A.I. After registration of the case local police carried out the investigation in which Akhtar A.I, Kousar Abbas, Fakhar Abbas and Ghazanfar Abbas, were found innocent, as such their names were placed in column No. 2 of the report prepared in terms of Section 173, Cr.P.C. The challan of the case was submitted before the Court of competent jurisdiction, however, after the lapse of more than two years and two months, on 18.10.2008, the complainant preferred to file private complaint titled as: "Bashir Ahmed Vs. ' Mukhtar Hussain, etc." ' under Sections 302, 148, 149, 109, PPC. On submission of complaint, the learned trial Court after recording preliminary/cursory statements of the prosecution witnesses, vide order dated 19.03.2009 issued process against the accused/respondents. After recording of evidence and taking into consideration the material available on record, the learned trial Court vide judgment dated 26.03.2010 concluded that the charge against Akhtar A.I, Kousar Abbas, Fakhar Abbas and Ghazanfar Abbas/respondents was not made out as such they were acquitted of the charge while extending them benefit of doubt. However, while holding that charge against Mukhtar Hussain, appellant, stood proved, the learned trial Court convicted him under Section 302(b), PPC, and sentenced to death as Tazir with direction to pay Rs. 50,000/- as compensation to legal heirs of deceased in terms of Section 544-A, Cr.P.C. And in case of default in payment thereof, to undergo S.I. For six months.
2. Feeling aggrieved by the judgment of the learned trial Court, Mukhtar Hussain, appellant has assailed his conviction and sentence through filing Crl. Appeal No. 814/2010 while the learned trial Court forwarded Murder Reference No. 331/2010 for confirmation of death sentence inflicted upon the convict in terms of Section 374, Cr.P.C. As both the matters are arising out of one and the same judgment of the learned trial Court. Therefore, these are being disposed off through consolidated judgment.
3. Prosecution story, as per contents of the FIR (Exh.PG/I) lodged on the statement (Exh.DC) of Bashir Ahmed son of Karam A.I, case Kalyan, resident of Kalyan Wala (PW-14) is that he is involved in zamindara. On 07.06.2006 at maghrab-wela the complainant along with Allah Bakhsh son of Sultan, Zafar Iqbal son of Gul Muhammad, both Kalyan by case and residents of village were present at Adda Rodu Sultan when Muhammad Ameer, brother of the complainant, aged 48/49 years, alightened from the bus, which came from 18-Hazari and all of them left for their houses.
Muhammad Ameer, brother of the complainant, was heading at some distance while bulb was also lit near the mosque and moonlight was also present at that time. When Muhammad Ameer, brother of the complainant, went near Masjid Rehmani, all of sudden, from the opposite side, Mukhtar Hussain armed with rifle, Javed Hussain armed with repeater .12-bore, both sons of Ghulam Hussain, Akhtar All son of Allah Bakhsh armed with rifle, Kausar Abbas son of Akhtar Hussain alias Jani armed with rifle, all Chohan by case and residents of Mouza Rodu Sultan, while raising lalkaras, emerged there and in a loud voice stated to teach lesson to Muhammad Ameer for committing murder of Jawaz Hussain and Tariq Jawaz and injuring Muhammad Lateef.
Thereafter Mukhtar Hussain made a straight fire shot with his rifle, which landed at the abdomen of Muhammad Ameer. Then Akhtar A.I made a fire shot, which also landed on front side of abdomen of Muhammad Ameer, who after sustaining injuries fell down on the ground. All the accused persons while making aerial firing fled away from the scene of occurrence. According to contents of the crime report, besides the complainant, the occurrence was witnessed by Allah Bakhsh and Zafar Iqbal and all of them saved their lives while lying on the ground. Thereafter, the complainant rushed towards Muhammad Ameer and tried to take care of him, however, he had already breathed his last. The complainant averred that that Inayat son of Allah Diwaya and Sabir Ah son of Haji Sardar, both Kalyan by case and residents of the same village, had told the complainant that on the evening of previous day, Mukhtar Hussain, Kausar Abbas, Akhtar A.I were talking with Fakhar Abbas, Ghazanfar Abbas both sons of Akhtar Hussain alias Jani, Chonan by case were talking with each other at the chakki of Manzoor Arain that Muhammad Ameer etc. Had committed the murder of 2/3 person from their side, therefore, in order to spend their lives peacefully, they should commit his murder. According to the complainant, Mukhtar Hussain, Javed Hussain, Akhtar A.I, Kausar Abbas, accused, on the abetment of Fakhar Abbas, Ghazanfar Abbas both sons of Akhtar Hussain alias Jani had committed murder of Ameer Motive behind the occurrence as disclosed in the crime report was that Muhammad Ameer had committed the murder of Jawaz Hussain regarding which case FIR No. 36/1990, dated 10.02.1990, offence under Sections 302, 324, 34, PPC, was registered and he had also committed murder of Tariq Jawaz in the year 1996, regarding which case FIR No. 232/1996, dated 18.07.1996, offence under Sections 302, 324, 34, PPC, was registered at Police Station 18-Hazari, and due to this grudge the accused persons, on the abetment 0P Fakhar Abbas and Ghazanfar Abbas, had committed murder of Muhammad Ameer.
4. On receipt of information regarding the occurrence Ehsan Nawaz, S.I. (CW-I), along with other police officials went towards the place of occurrence and near Adda Rodu Sultan, the complainant appeared before him and made his statement, which was reduced into writing (Exh.CW-I/A), and the complainant thumb marked the same in token of its correctness. The complaint was transmitted to Police Station through Muhammad Sharif 164/C for registration of formal FIR. The Investigating Officer inspected the dead body, prepared inquest report (Exh.CW-I/B) and handed over the dead body to Noor Hussain 763/C, for escorting it to mortuary for autopsy. Thereafter the Investigating Officer, prepared rough site plan of the place of occurrence (Exh.CW-I/C). From the spot he collected bloodstained earth (Exh.CW-I/K) and took into possession an electric bulb along with a stick (Exh.CW-I/H and Exh.CW-I/J). After the post-mortem examination, last worn clothes of the deceased, qameez (Exh.CW-I/I), shalwar (Exh.CW-I/2) and vest (Exh.CW-I/C) were produced before the Investigating Officer, which were made part of the file. One reaching the Police Station, the Investigating Officer handed over the case property to Moharrar Malkhana for safe custody and onward transmission to the quarter concerned and recorded statements of the prosecution witnesses under Section 161, Cr.P.C. Thereafter, the Investigating Officer was transferred and the investigation was entrusted to Akbar Hayat, S.I. (PW-IO). On the direction of the Investigating Officer and on the pointation of the PWs, on 01.02.2007, Muhammad Munawar Asif, Draftsman (PW-6) took rough notes of the place of occurrence and thereafter prepared scaled site plan of the place of occurrence (Exh.PD and Exh.PD/I), which was made part of the file. The Investigating Officer made efforts to arrest the appellant, however, could not arrest him, therefore, after due process of law, his non-bailable warrants of arrest and proclamation were procured from the Court of competent jurisdiction.
' On 03.10.2006, the investigation was entrusted to Riaz Hussain, S.I. (PW-8), who on 03.10.2006, arrested the appellant and obtained his physical remand. During the course of interrogation, in pursuance of disclosure, the appellant led to the recovery of rifle .7-MM from the haveli of Tajammal Hussain Chohan, which was taken into possession vide recovery memo. Exh.PE. He prepared rough site plan of the place of recovery (Exh.PF).
5. After conclusion of the investigation, the Investigating Officer prepared report in terms of Section 173, Cr.P.C. And sent the same to the Court of Sessions en-routed through the Illaqa Magistrate as provided under Section 190(2), Cr.P.C. While the private complaint was filed on 18.10.2008. On 19.03.2009, the learned trial Court formally charge sheeted the appellant and other co-accused to which they pleaded not guilty and claimed trial. In support of prosecution version, seventeen (17) prosecution witnesses and two Court witnesses appeared during the course of trial.
6. Ocular account in this case has come out from the statements of Bashir Ahmed (PW-14), Zafar Iqbal (PW-15) and Allah Bakhsh (PW-16). On presentation of complaint, Ghulam Jaffar, ASI (PW-17) had chalked out formal FIR. Muhammad Munawar Asif, Draftsman (PW-6) had prepared scaled site plan of the place of occurrence. Investigation in this case was conducted by Ehsan Nawaz, S.I. Riaz Hussain, S.I. (PW-9), Akbar Hayar, S.I. (PW-19) and Liaquat A.I, S.I. (CW-2).
' Dr. Tausif Zafar Khan (PW-3) had conducted post-mortem examination upon the dead body of deceased and found following injuries on his person:-- "1. A fire-arm grazing wound 2 cm x 0.5 cm on left cheek multiple blacks parts were present on the left cheek in an area of 7 cm x 6 cm due to gun powder.
2. A fire-arm entrance wound 0.5 cm x 0.5 cm x cavity deep with inverted margin close to the root of neck on left side (left clavicular area). Blackening was present around the margins. Multiple blacks parts were present in an area of 7 cm x 4 cm at the left curricular area. Corresponding hole was present on Qameez.
3. An incised wound 4 cm x 1 cm x cavity deep in the Centre of abdomen, omentum was coming out, umbilicus was absent.
4. An incised wound 3 cm x 1 cm x cavity deep at the Centre of abdomen 0.5 cm apart from Injury No. 3 omentum coming out.
5. A fire-arm exit wound 3.5 cm x 1.6 cm with everted margins on the back of left chest middle part close to mid line."
' After conducting the post-mortem examination, the doctor rendered the following opinion "The cause of death in this case was Injury No. 2 causing damage to lung, heart and aorta (vital organs) leading to excessive haemorrhage shock and death. This injury was ante mortem in nature and was caused by fire-arm.
Probable time that elapsed between injuries and death was immediate and between death and post-mortem was within 7 to 10 hours."
' Statements of rest of the prosecution witnesses are formal in nature.
7. Vide his statement recorded on 11.6.2009, the complainant gave up Sabir A.I, Nazeer Ahmed, Allah Ditta and Amjad A.I, PWs, being unnecessary. On 14.07.2009, Liaquat, S.I. And Ehsan Nawaz, S.I. Were given up on the statement of learned counsel for the complainant, being won over. On 22.02.2010, the complainant tendered in the evidence the report of Chemical Examiner (Exh.PL) and closed his evidence.
8. The appellant was also examined in terms of Section 342, Cr.P.C. Wherein he opted neither to appear as his own witness in terms of Section 340(2), Cr.P.C. In disproof of allegations levelled against them in the prosecution evidence nor opted to lead evidence in his defence. While replying to the questions why this case against him and why the PWs deposed against him, the appellant made the following deposition.-- "The case against me is false.
' The PWs are related to the deceased and are my sworn enmity thus they have motive to falsely depose against me."
9. Learned trial Court, after evaluating the evidence available on record, found version of the prosecution proved beyond shadow of reasonable doubt against the appellant resulting into his conviction in the afore-stated terms.
10. Before recording the contentions advanced by learned counsel for the parties, it is pertinent to mention here that it is an old case pending adjudication before this Court for the last five years in which number of opportunities have been given to the complainant to arrange his representation.
On 27.02.2014, 04.04.2014, 05.05.2014, 17.06.2014, 15.07.2014, 24.09.2014 and 09.10.2014, the opportunities were repeated but the complainant failed to arrange his counsel. It seems that the complainant is intentionally avoiding to adduce his representation; therefore, this Court is left with no other option except to proceed with the matter in the presence of learned Law Officer.
11. Learned counsel for the appellant while opening his arguments submitted that the prosecution has not advanced its case with clean hands rather has miserably failed to substantiate the same through leading reliable, cogent and confidence inspiring evidence. He argued that the mode and manner of occurrence is neither confidence inspiring nor it appeals to reason. The emphasis of learned counsel for the appellant is that the prosecution witnesses were not present at the place of occurrence at the relevant time and their. Presence is not established beyond reasonable doubt.
He contended that the prosecution witnesses were residents of distant places, therefore, at the most their presence at the place of occurrence was per chance, hence they cannot be termed as independent/reliable witnesses by any stretch of imagination. Further stated that all the prosecution witnesses are closely related to the deceased and in the presence of enmity, their statements cannot be relied upon without independent corroboration. Learned counsel contended that the prosecution witnesses have miserably failed to pin-point the prosecution story on salient features in a convincing manner. Further contended that the deceased and the prosecution witnesses were placed on the same pedestal as far as animosity between the parties is concerned, however, astonishingly during the course of occurrence the accused party has not caused even a single scratch on their person, which squarely shatters the prosecution version particularly due to their previous shared animus. Even the statements of the prosecution witnesses do not establish truth as two of the injuries i.e. Injury No. 3 and Injury No. 4, were caused by sharp edged weapon contrary to the prosecution version, which in isolation creates doubts about the presence of the prosecution witnesses at the spot, had they been present over there, they must have given true picture of the prosecution version. Further stated that even the Investigating Officer while appearing in the witness box, in categorical terms, stated that the prosecution witnesses totally failed to establish their presence at the place of occurrence. It was argued that bulk of prosecution version has already been smashed as five accused persons nominated in the crime report were declared innocent during the course of investigation having no nexus with the crime. As far as the recovery of rifle is concerned, it was argued that the same was not transmitted to the office of Forensic Science Laboratory; therefore, it does not advance the prosecution case in any manner.
Learned counsel finally argued that the accumulative effect of all the facts and circumstances brought forth on the record, the prosecution has miserably failed to establish its case beyond reasonable doubt, hence, the conviction and sentence recorded by the learned trial Court is liable to be set aside.
12. Conversely learned Deputy Prosecutor General vehemently opposed the contentions raised by learned counsel for the appellant on the ground that the appellant is duly named in the FIR with his specific role. It was further argued that the prosecution witnesses were present at the spot and they had witnessed the occurrence as there was sufficient light available in the shape of electric bulb and moonlight. The Investigating Officer during the spot inspection had also taken into possession bulb. Contended that on the following day of the occurrence, through his supplementary statement, the complainant involved Muhammad Hussain, accused, and sharp edged injuries on the person of deceased were ascribed to him as such the prosecution version is fully established. Learned Law Officer argued that Bashir Ahmed, complainant/PW-14, Zafar Iqbal (PW-15) and Allah Bakhsh (PW-16) fully Supported the prosecution version on salient features and if any minor discrepancies are pointed out, it do not affect the prosecution version in its entirety. It was argued that during the course of investigation, after thorough probe, the appellant was found guilty as such his name was placed in column No. 3 of the report prepared under Section 173, Cr.P.C. Further contended that the appellant has committed the occurrence in a brutal manner with knowledge of culpable homicide, and the prosecution adduced its case through ocular account, which is straight forward, reliable and confidence inspiring, therefore, no other corroboration is required for normal sentence of death.
13. We have heard the arguments advanced from both sides and perused the record with the able assistance of learned counsel for the appellant, as well as, learned Deputy Prosecutor General and gone through the record available on file.
14. It is an admitted fact that the instant occurrence has taken place in a busy/thickly populated area in the main bazaar of Adda Rodu Sultan surrounded by various shops opposite Malik Cloth House, in which Muhammad Ameer, brother of the complainant, was done to death. The prosecution story reflected on the surface clearly reveals that the deceased alongwith prosecution witnesses was heading towards his house. He was away at some distance while the complainant and other prosecution witnesses were behind him in the main bazaar when this occurrence was initiated by the accused persons nominated in the crime report. It is an admitted fact that in the crime report the complainant had mentioned that he along with other prosecution witnesses had witnessed the occurrence in the moon light, as well as, in the light of bulb installed nearby and according to contents of the Crime report, the appellant along with other co-accused had inflicted fire shot injuries at the abdomen of the deceased. However, subsequently, supplementary statement (Exh.CW-I/B) was made by the complainant in which by improving the earlier stance, the role of inflicting injuries at the abdomen of deceased was assigned to Muhammad Hussain with his dagger. Now keeping in view the facts and circumstances narrated in the crime report this Court has to evaluate the prosecution evidence, which has been led in the shape of ocular account, medical evidence, recovery of crime weapon, the investigation and strong motive.
15. It is cordial .Principle of law that in such like circumstances where there is previous enmity of serious nature the statements of the prosecution witnesses can be classified into three categories: firstly wholly reliable, secondly wholly unreliable and thirdly partly reliable and partly unreliable. In the first category the conviction can be safely sustained even in absence of corroborated testimony while in the second category strongest corroborative evidence may not rehabilitate such evidence and in the third category conviction can be maintained when such evidence is squarely corroborated by circumstances coming from distant source.
16. As far as ocular account in this case is concerned that is most crucial aspect of the case, which has to be evaluated strictly keeping in view the guidelines given by the superior Courts from time- time. The ocular account in this case is coming from the mouth of the complainant/Bashir Ahmed (PW,14), Zafar Iqbal, (PW-15) and Allah Bakhsh (PW-16). Admittedly all the prosecution witnesses are closely related to the deceased. The complainant happens to be real brother of the deceased while Zafar Iqbal, PW, is his step brother and Allah Bakhsh (PW-16) is from the same brotheri. It has come on record that both PW-15 and PW-16 are residents of at-least 10-KMs away from the place of occurrence. They have failed to satisfy their presence at the spot and purpose of their visit.
' When all these aspects are taken conjointly, especially close relationship of the prosecution witnesses with the deceased, the Court deems it appropriate to satisfy its mind qua their presence and seek independent corroboration from other source. It is settled principle of law that statements of interested witnesses do require independent corroboration to base conviction upon the same.
Reliance in this regard is placed upon the dictums of law laid down by the august Supreme Court of Pakistan in the cases of Dosa versus The State (1988 SCM R 1532), Ghulam Farid versus Ghulam Mustafa and another (2002 SCM R 1343), Niaz. Versus The State And Muhammad Hussain versus The State (PLD 1960 Supreme Court (Pak). 387), Nazir and others versus The State (PLD 1962 Supreme Court 269), Ata Muhammad and another versus The State (1995 SCM R 599).
' Similar view was affirmed by the august Supreme Court of Pakistan in the case titled Ghulam Farid versus Ghulam Mustafa and another (2002 SCM R 1343) wherein it has been observed as under:- "-S. 302--Constitution of Pakistan (1973), Art. 185 (3)---Reappraisal of evidence--Prosecution witnesses were not residents of the area where the occurrence had taken place and their presence at the spot was doubtful. Court witness on whom the murderous assault was made did not support the prosecution story--Death sentence awarded to the accused by the Trial Court was set aside by the High Court--Validity-Supreme Court after re-appraisal of evidence concluded that the findings of High Court were based on correct, elaborate and careful appraisal of evidence which was in accordance with the principles laid down by superior Courts for safe administration of criminal justice-- Supreme Court declined to interfere with the judgment passed by the High Court as the same did not suffer from any illegality-Leave to appeal was refused".
' In the case of Haji Rab Nawaz versus Sikandar Zulqarnain and 7 others (1908 SCMR 25), the august Supreme Court has held as under.-- "--S. 302/34--Appreciation of evidence--Interested witness--Courts in a case involving capital punishment will not base conviction of an accused solely on the testimony of interested witness unless such evidence finds corroboration by some other independent and unimpeachable piece of evidence or circumstance in the case--".
' In the case of Abdul Ghaffar versus The State (PLD 2007 Supreme Court 467), the august Supreme Court of Pakistan has observed in the following terms:-- "--Interested witness--Connotation--Interested witness is undoubtedly a competent witness under Qanun-e-Shahadat, 1984--Proposition that testimony of an interested witness should be corroborated by independent evidence is not of universal application--Question of reliability of such witness must depend upon the circumstances of each case and the quality of his evidence-- Court may accept the testimony of an interested witness without any corroboration, if the same is found reliable, but as a matter of prudence Court insists on corroboration of his evidence when he is inimically disposed towards the accused and it will, therefore, be unsafe to base a conviction on his testimony alone".
17. As far as the mode and manner of occurrence is concerned it is an admitted fact that as per prosecution case the occurrence had taken place in the main bazaar at maghrab-wela; where besides the appellant, deceased, and other prosecution witnesses were also present. All the prosecution witnesses while appearing in the witness box also admitted that on account of previous animosity the assailants had same motive against them. Fact remains that Zafar Iqbal (PW-15) was nominated accused of Tariq deceased. Moreover, Muzaffar brother of Zafar Iqbal (PW-15) was murdered and the appellant side was nominated accused in that case, which was also admitted by the complainant. Relevant portion of his statement reads as under:- "Muzaffar brother of Zafar Iqbal PW of this case was murdered and the case was registered against the party of present accused persons."
The complainant also admitted that: "It is correct that the motive of the FIR No. 232 dated 18.07.1996 land Zafar Iqbal PW of this case were accused and had faced the trial. The accused persons present in the Court did not attach me and Zafar Iqbal PWs of the case when Muhammad Ameer my brother was done to death."
' So much so Inayat and Ghulam Shabbir alias Shaboo, step brother of the complainant were also present at the place of occurrence, and it has come on record that both of them were nominated accused of the murder of Mukhtar, appellant, however, according to the complainant, the assailants had not assaulted upon them. Relevant portion of his statement reads as under:-- "The accused persons present in the Court did not launch attack upon Anayat PW of this case and Ghulam Shabhir alias Shabbo my step brother the accused persons of the murder case of Ghulam Hussain the father of the Muhhatr accused now present in the Court."
' Moreover, Zafar Iqbal (PW:15) while appearing in the witness box had stated that in the case of murder of Tariq, he along with Bashir complainant and Muhammad Ameer deceased were nominated as accused.
18. Keeping in view the status of all the prosecution witnesses and their claim which they made during the course of cross-examination does not inspire confidence regarding their presence at the place of occurrence. There could not be any second thought about recklessness of the assailants, seven in number, who all armed with fire-arms, had emerged there and took the life of Muhammad Ameer, brother of the deceased. It knocks mind of the Court that if the assailants were so carefree in commission of offence why they spared the prosecution witnesses, who were of much importance for them to fulfill their design of eliminating them, particularly when there was no apparent hurdle between them. All these facts lead to the only conclusion that the prosecution witnesses were not present at the place of occurrence at the relevant time. Moreover, the Investigating Officer also opined that the prosecution witnesses had failed to substantiate their presence at the place of occurrence. Relevant portion of his statement reads as under:- "During the investigation conducted by me the complainant could not prove the purpose of his presence as well as of the deceased and the PWs at the place of occurrence at the fateful time."
19. As far as medical evidence in this particular case is concerned, perusal of record available on file reveals that in the crime .Report the complainant had stated that the appellant had made a fire shot which landed at the abdomen of Muhammad Ameer while second fire shot made by Akhtar A.I, co-accused, also landed at the abdomen. However, while conducting the post-mortem examination, the doctor had found five injuries on the person of deceased. The doctor had also opined that the injuries at abdomen of the deceased were inflicted by sharp edged weapon.
Moreover, according to scaled site-plan (Exh.PD) prepared on the pointation of the prosecution witnesses, the accused had made firing from a distance of 8-feet, however, the doctor had observed blackening around the margins of Injury No.2. The prosecution has been consistent that when the appellant made firing upon the deceased both were standing in the bazaar, however, while conducting post-mortem examination, the doctor opined that the rout of Injury No. 2 and 5 is upward to downward. Relevant portion of statement of the doctor reads as under: "Injury No. 5 is the exit wound of Injury No.2. The route of Injury No. 2 was from upward to downward. The route of Injury No. 2 and 5 indicate that the assailants while firing were on higher pedestal while the deceased was on lower pedestal."
' Hence, when examined from every angle, it can safely be held that the medical evidence does not coincide with the ocular account. In its pronouncement in the case of Amin A.I and another vs. The State (2011 SCM R 323) the august Supreme Court of Pakistan while dealing the issue of conflict between the ocular account and the medical evidence with regard to number of injuries and presence of blackening had acquitted the accused while holding that: "--Ss. 302 & 324--Qatl-e-amd and attempt to commit qatl-eamd--Re-appraisal of evidence-- Fire-arm injuries--Distance, determination of--Medical evidence and ocular account-Conflict-- Benefit of doubt--All prosecution witnesses deposed that deceased received three injuries and injured person received fire shot from roof of a shop--Death sentence awarded to accused by trial Court was converted into imprisonment for life by High Court--Validity--Medical officer found six injuries on the person of deceased and one of the injuries had blackening--None of the witnesses deposed that any of the accused had caused injuries from a close range but on the contrary in site plan place of firing was shown 8 feet from deceased--From such distance, injury with blackening on the person of deceased could not be caused from a distance of less than 3 feet--Medical officer found one entry wound on the back of injured person with blackening and such wound could not be caused from long distance--Ocular testimony was in conflict with medical evidence, thus deceased and injured did not receive injuries in the manner as alleged by prosecution- Prosecution failed to prove case against accused beyond any reasonable doubt, therefore, they were entitled for benefit of doubt, which was given to them-Conviction and sentence awarded to accused was set aside by Supreme Court and accused were acquitted of the charge."
' Similar view was affirmed in the cases of Muhammad Sharifan Bibi vs. Muhammad Yasin and others (2012 SCM R 82) and Mst. Shazia Parveen vs. The State (2014 SCM R 1197).
20. There is no cavil to this proposition that in a criminal case if the complainant is not satisfied with the investigation carried out by the police, he is deemed at liberty to move for change of investigation or to avail alternative remedy by way of filing private complaint. It is also an admitted fact that for filing private, complaint no definite time/limitation is provided under the law; however, it is the consistent view of the superior Courts of the country that the same should be filed within a reasonable period and delay in filing thereof would create serious doubts about its authenticity particularly when the same is only based upon oral evidence. As far as the instant case is concerned, the occurrence had taken place on 07.06.2006 while the complainant opted to file private complaint (Exh.CW-I/B) on 18.10.2008 i.e. With a delay of more than two years and two months, I therefore, its sanctity is open to serious questions and the delay itself creates suspicion qua the authenticity of the version adduced by the complainant in his private complaint.
Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the case of Muhammad Faiz Khan vs. Ajmer Khan and another (2010 SCM R 105); wherein following principle was laid down: ----S. 154--Registration of case--Limitation--Effect--No limitation is provided in criminal law for lodging a complaint--When complaint is filed after a considerable delay, which was not explained by complainant then in such situation it raises suspicion as to its truthfulness--Delay in filing complaint is not by itself fatal except under very special circumstances--Complaint looses its truthfulness with length of delay, more particularly when it is based on oral evidence."
21. Another very crucial point, which requires determination by this Court is that five persons were nominated in the crime report stated to be armed with most sophisticated weapons. However, this Court has to evaluate whether such number of persons as mentioned in the crime report were actually required for the job and if so what inference would be drawn out of it keeping in view the dictum laid down by august Supreme Court of Pakistan in its salutary judgment in the case of Nazir and others vs. The State (PLD 1962 SC 269), wherein the earlier judgment delivered in Niaz's case (PLD 1960 SC 387) was revisited only on the ground that Court has to see whether number of persons were actually required for the occurrence. The essence of the judgment is reproduced as under: "Circumstances corroborating the eye-witness may be such as (1) that the number of culprits mentioned was such as would be required for an attack of the kind which is the subject matter of the proceedings; (2) that the persons named as culprits were such as would be expected to join the attack."
' Similar view was affirmed in another salutary judgment in the case of Mir Hassan and others vs. State and others (PLD 1999 SC 1702); relevant portion of which is reproduced as under: "Whenever interested persons claiming to be eye-witnesses of an occurrence charge persons against whom they have some motive for false implication, with the commission of the offence, the first question to be considered is whether in fact they saw the occurrence and were in a position to identify the culprits. If there be no reason to doubt that they in fact witnessed the occurrence and were in a position to identify the offenders, the further question arises as to whether they can be relied upon for convicting the accused without corroboration. In cases where such interested witnesses charge one person only with the commission of the offence, or where the number of persons whom they name does not exceed that which appears from independent evidence or from circumstances not open to doubt to be the true number of culprits, their evidence may, in the absence of anything making it unsafe to do so, be accepted without corroboration, for substitution is a thing of rare occurrence and cannot be assumed, and he who sets up the plea of substitution has to lay the foundation for it. But if the Court finds that the number mentioned by interested persons may have been exaggerated their word cannot be made the basis of conviction and the Court will have to look for some additional circumstance which corroborates their testimony."
' Ordinarily even a single person, who is armed with rifle is sufficient to secure the ends of his desire if he wanted to do that and assembling of such number of persons at the relevant time and place is beyond comprehension of mind of ordinary prudence.
22. Moreover, there is previous bloodshed enmity between the parties, which is not only part of crime report rather the same is also oozing from the evidence adduced during the course of trial.
However, it is consistent view of the superior Courts of the country that motive is always deemed a double edged weapon and the same in isolation cannot be held sufficient to prove guilt of the accused. While dealing this question, in a salutary judgment rendered by august Supreme Court of Pakistan in the case of Sahib Masih and others vs. The State (1982 SCM R 178) following guideline was laid down: "--S.8--Motive a double-edged weapon--Could prompt false implication and revenge in form of aggression--Mere presence of motive, held, not sufficient in determining intrinsic worth or consistency of the statements of eye-witnesses."
23. As far as judgment of the learned trial Court is concerned it is on the record that the learned trial Court has already given premium of innocence to four accused persons out of five faced trial whereas the prosecution had nominated seven persons in the crime report. It is settled principle of law that if evidence of the prosecution is disbelieved qua bulk of prosecution version it cannot be believed qua {{RE TYPE TEXT}} {{' 1 itnhethoethienrstinantthceasabes.eRnecsepoefavfery ul r setlri and lige cionrrtohbi so rraetgi oarnd, wi sh pi clhaciesdmoins sg}} the ratioratio decidendi of august Supreme Court of Pakistan in the cases of Akhtar A.I and others vs. The State (PL 2008 SC 269), Sheral alias Sher Muhammad's case (1999 SCM R 697) and Sher Bahadur's case (1972 SCM R 651). This aspect alone is sufficient to discard the prosecution case especially when though the recovery has been affected from the appellant, however, the same was not sent for comparison/matching of the crime empties, reasons best known to the prosecution. Moreover, the recovery is deemed to be corroborative in nature and it is used for support of direct evidence and as per dictates of justice whenever direct evidence is disbelieved it would not be safe to maintain conviction on confirmatory evidence. In the case of Muhammad Jail vs. Muhammad Akram and others (2009 SCM R 120) the august Supreme Court of Pakistan had held as under:- "----S. 302(b)---Appreciation of evidence-Principle---In a case of direct evidence other pieces of evidence are used for corroboration or in support of direct evidence--When direct evidence is disbelieved, then it would not be safe to base conviction on corroborative or confirmatory evidence."
24. As far as contention of learned Deputy Prosecutor General that the appellant had not advanced any defence plea is concerned, it is settled principle of law that the prosecution has to stand on its own legs, whereas, the defence has to show only glimpse. Moreover, the prosecution cannot take any benefit of weakness of defence plea. In the case of Shamir alias Shamla vs. The State (PLD 1958 Supreme Court 242), it has been held that even if the accused does not lead to prove plea of innocence but accused version receiving support to the extent of being reasonably possible from prosecution evidence, accused is entitled to his acquittal. Moreover, in its ratio decidendi in the case of Shera Masih and another vs. The State (PLD 2002 Supreme Court 643) the august Supreme Court of Pakistan had held as under: "--Defence plea of the accused even if is not supported by any evidence direct or circumstantial and is discarded being improbable, still it will not be a circumstance to prove the guilt of an accused and the prosecution has to establish its case by standing on its own legs."
25. Nutshell of the above discussion is that the prosecution has miserably failed to substantiate its case against the appellant beyond reasonable doubt whereas it is established principle of law that prosecution has to prove its case beyond shadow of doubt which link is missing in the instant case qua ocular account, medical evidence, recovery of crime weapon, motive and investigation. It is settled principle of law that ocular evidence should be excluded from consideration when presence of eye-witnesses at the spot does not inspire confidence and is doubtful. Reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the case of Ghulam Mustafa vs. The State (1996 SCJ 265); wherein following principle was laid down: "Ocular evidence should be excluded from consideration when there is no judicial certainty or circumstantial guarantee about presence of eye-witnesses on spot."
26. As far as abscission of the appellant as contended by learned Law Officer is concerned, it is established principle of law that mere absconsion is not a proof of guilt of an accused. Respectful reliance in this regard is placed on the ratio decided of august Supreme Court of Pakistan in the case of Rasool Muhammad vs. Asal Muhammad and another (PL 1995 S.C. 477); whereby their Lordships had held as under:-- "Disappearance of a person named as a murder/culprit after occurrence, is but natural, whether named rightly or wrongly-- Absconder per se is not a proof of guilt of an accused person--It may, however, create suspicions against him but suspicions after all are suspicions."
27. Before concluding we are also inclined to comment upon the contention raised by learned law officer regarding promptness of the FIR. It goes without saying that the same is to be examined/ scrutinized together with other features of the case. If this aspect of the prosecution case is taken in totality then admittedly the prosecution has squarely failed to satisfy this Court on number of other characteristics of the case. We are fortified in our view as per dictum of law laid down in the cases of Siraj vs. The State (1984 SCM R 1238), Zafar Hayat vs. The State (1995 SCM R 896), Mst. Dur Naz vs. Yousaf and another (2005 SCM R 1906), Idris A.I and 7 others vs. The State (PLD 1971 Dacca 254).
27. From the facts and circumstances narrated above, we are persuaded to hold that the prosecution has badly failed to substantiate its case against the appellant with regard to presence of the prosecution witnesses at the place of occurrence at the relevant time, material improvements made by the prosecution witnesses during the course of trial, contradiction in ocular and medical evidence with regard to number of injuries, belated filing of private complaint coupled with the fact that out of five accused persons faced trial, four were extended the premium, of innocence by the learned trial Court and no appeal against their acquittal was filed before this Court, which create serious dents in the prosecution version and in such like situations it becomes incumbent upon the Court to extend the benefit of doubt in favour of the accused. Furthermore, to extend the benefit of doubt so many circumstances are not required rather one circumstance which creates reasonable doubt in the veracity of the prosecution version is sufficient for the purpose, not as a matter of grace rather as a matter of right. Respectful reliance in this regard is placed on the ratio decided of august Supreme Court of Pakistan in the case of Tariq Pervez vs. The State (1995 SCM R 1345); wherein following principle was laid down: "----Art. 4--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."
' Similarly in the case titled Arif Hussain and another vs. The State (1983 SCM R 428), the august Supreme Court of Pakistan had further held as under: "----S. 302--Murder--Evidence--Benefit of doubt--Prosecution case not free from doubt-- Charges not brought home to accused in manner required under law--Accused given benefit of doubt and acquitted."
' Similar view was affirmed in the case of Muhammad Akram v. The State (2009 SCM R 230).
' Moreover, it is golden principle of law that the Court ought to let off 100 guilty but should not convict one innocent person on the basis of suspicion. Resultant while setting aside the conviction and sentence recorded by the learned trial Court in terms of judgment dated 26.03.2010, Crl.
Appeal No. 814 of 2010 filed by Mukhtar Hussain/appellant is accepted in toto as a consequence whereof he is ordered to be acquitted of the charge and he is directed to be released forthwith, if not required in any other case.
28. Murder Reference No. 331 of 2010 forwarded by the learned trial Court for confirmation of sentence of death inflicted upon Mukhtar Hussain/convict fails, which is answered in negative.
Death sentence is not confirmed.