SHAHID HAMEED DAR, J.--Shaukat Ali, Muhammad Hussain and Muhammad Shafi were held guilty under sections 302(b)/149, 148 and 337-J P.P.C. By the learned Additional Sessions Judge, sub- division Tandlianwala. District Faisalabad vide judgment dated 30.10.2010 and sentenced as under:- i) Under sections 302(b)/149 P.P.C. to death each on three counts with the direction to pay an amount of Rs.3,00,000/- each to the legal heirs of the each deceased under section 544LA, Cr.P.C.
Or in default thereof to undergo simple imprisonment for three months each on three counts. ii) Under section 148 P.P.C. to undergo rigorous imprisonment for three years each. iii) Under section 337-J P.P.C. to undergo rigorous imprisonment for ten years each.
' Their co-accused Yaseen and Ameen were declared proclaimed offenders and perpetual warrants of arrest were issued against them.
2. The convict-appellant, Shaukat Ali by filing Criminal Appeal No.2638 of 2010 and convict- appellants Muhammad Hussain and Muhammad Shafi by filing Criminal Appeal No.400-J of 2010 have called in question the impugned judgment, whereas the learned trial court has submitted Murder Reference No.13 of 2011, under section 374, Cr.P.C. For confirmation of the death sentence of the appellants.
' Muhammad Shafi (appellant in Cr.A.No.400-J/2010) was acquitted of the chargs on the basis of compromise by this court on 24.1.2012 and appeal to his extent was allowed. Now we propose to dispose of Crl.A.No.2638/2010 filed by Shaukat Ali-appellant and CrI.A.No.400-J/2010 by Muhammad Hussain-appellant together with Murder Reference No.13/2011 through this single judgment.
3. The prosecution story as unfurled by Muhammad Ashraf (complainant/P.W.1) in complaint (Exh.CW7/AA), is that he obtained agricultural land measuring 30 acres, situated in river- catchment area on lease; he along with his maternal nephew Nasir Abbas, brothers-in-law (Saale)
Muhammad Nawaz and Muhammad Imran cultivated the said land; he temporarily lived in square No.44, killa No.14, within the revenue limits of Chappan Saee; he also erected a cattle-shed there; his brothers-in-law and paternal nephew slept at the said residence at night between 23/24.6.2009 to look after the cattle-head, whereas he along with Muhammad Tufail and Muhammad Hussain slept at a distance of about 1-1/2 acre to keep a vigil on the maize-crop; it was at about 2.30 a.m.
When he heard the dogs barking; he got up and awoke his companions; they came towards the Dhari; he had a search-light with him, which he lit and saw Muhammad Hussain son of Yaqoob (appellant), his ex-servant, who had come to see him the previous evening, running away along with his four unknown companions towards riyer Ravi; they entered the Dhari and saw in the search light that his brothers-in-law Muhammad Nawaz, Muhammad Imran and maternal nephew Nasir Abbas lay on the cots drenched by blood; they found their throats cut and they were no more; a blood stained Kassi lay close to Nasir Abbas'cot; they found tea-leaves in a kettle and a cup; he strongly showed the suspicion that Muhammad Hussain (appellant) joined by his unknown co- accused administered some intoxicating fluid to his brothers-in-law and the maternal nephew and butchered them by means of Kassi. The complainant leaving Muhammad Tufail and Muhammad Hussain PWs at the spot went to the police station and came across Allah Rakha SI (C.W.7) at Thatha Ismail, at 6.00 a.m., on 24.6.2009, who reduced into writing complaint (Exh.CW- 7/AA) and despatched it to the police station through Azhar Khan 4010/C (PW not produced) for registration of a case. On receipt thereof, Muhammad Umar Khan ASI/DO (C.W.8) drew up formal FIR (Exh.CW-8/CC), at 6.45 a.m., the same day.
4. After registration of the case, Allah Rakha SI (C.W.7) carried out the investigation, inspected the dead bodies of Muhammad Imran, Muhammad Nawaz and Nasir Abbas, prepared the injury statements (Exh.CW1/C, Exh.CW1/G & Exh.CW1/L), the inquest reports (Exh.CW1/D, Exh.CW1/H Exh.CW1/M) and despatched them to the mortuary for autopsy under the escort of Abbad Ali 2070/C (C.W.3); he inspected the venue of the crime and prepared visual site plan (Exh.CW7/BB); thereafter he collected blood stained earth from three places, vide seizure memos Exh.PB, Exh.PC & Exh.PD, respectively; he secured blood stained Kassi (P1) & Kettle (P2) with a cup from the place of occurrence vide memos of recovery Exh.PE & Exh.PF, duly attested by Aman Ullah (P.W.4) and Muhammad Abbas (P.W. Not produced); after postmortem examination of the dead bodies, Abbad Ali 2070/C produced before him bloodstained last worn clothes of the deceased, which he took into possession Vide memos Exh.CW3/Q, Exh.CW3/R & Exh.CW3/S; he got prepared the site plan-in scale in duplicate (Exh.CW2/N & Exh.CW2/P) qua the place of occurrence by Haq Nawaz, halqa patwari (C.W .2); he recorded supplementary statement of complainant on 25.6.2009, wherein he nominated four unknown persons, Ameen, Yaseen (since POs), Muhammad Shafi (since acquitted) and Shaukat Ali (appellant) as accused; Muhammad Shafi accused and the others joined investigation on 18.8.2009 and investigating officer kept his arrest pending; he arrested Muhammad Hussain (appellant) and Shaukat Ali (appellant) on 20.8.2009 and 18.10.2009, respectively; they were interrogated and sent to judicial lock-up; he declared Muhammad Shamefaced(since acquitted) innocent. After completion of investigation, he handed over the file to SHO for preparation of report under section 173, Cr.P.C.
5. The complainant (P. W .1) being dissatisfied with the investigation, filed a private complaint (Exh.PA) on 19.11.2009 against the accused, Muhammad Hussain (appellant), Shaukat Ali (appellant), Muhammad Shafi (since acquitted), Yaseen and Ameen (since P0s), wherein first three were tried and convicted. He introduced Muhammad Zaman (P.W.3) and Niaz alias Aman Ullah (P.W.4) along with others as eye-witnesses of the occurrence.
6. The learned trial Court after necessary proceedings under sections 200, 202, Cr.P.C. Summoned all the accused to face the trial. The private complaint (Exh.PA) was taken up first by the learned trial Court for trial of the accused.
7. The accused on indictment pleaded not guilty and claimed a trial. The prosecution, in order to prove its case, produced four public persons, namely Muhammad Ashraf (complainant/P.W.1), Muhammad Tufail (P.W.2), Muhammad Zaman (P.W.3) and Niaz alias Aman Ullah (P.W.4) as eye- witnesses, while rest, Dr.Naseer Ahmad, Haq Nawaz Patwari, Abbad Ali 2070/C, Ahmad Yar 3722/C, Naveed Ahmad 3418/C, Ghazanfar Ali 3633/C, Allah Rakha SI/I0 and Muhammad Umar Khan ASI were recorded as C.W.1 to C.W.8, respectively. Thereafter, the accused were examined under section 342, Cr.P.C., whereby .They professed their innocence in the matter and denied all the allegations levelled against them as false. They did not opt to depose within the scope of section 340(2), Cr.P.C. Or adduce evidence in defence. The contention of Muhammad Hussain-appellant in reply to question as to why this case against him and why the PWs have deposed against him, read as under:-- "It was a blind murder and no body witnessed it. Due to suspicion, the complainant has involved me in this case falsely. The complainant and PWs are closely related to each other and with the deceased persons. I am innocent "
His co-accused Shaukat Ali (appellant) and Muhammad Shafi (since acquitted) adopted the same version, as above.
' The learned trial Judge on conclusion of the trial held the appellants guilty of the offence charged and sentenced them as mentioned hereinabove.
8. In support of the appeals filed by the appellants, their learned counsel has contended that it was a case of unseen occurrence having taken place in the darkness of the night with none of the prosecution witnesses anywhere near the spot; Shaukat Ali (appellant) was not named in the FIR and complainant (P.W.1) named him as an accused through his supplementary statement, recorded on 25.6.2009 whereby he also added three others, Ameen, Yasin and Muhammad Shafi as such, besides the motive behind the occurrence; the entire prosecution case stands on circumstantial evidence and the ocular account, which was not believable; the complainant filed private-complaint against the appellant and three others on 19.11.2009, about five months after the alleged occurrence and offered no explanation as to the delay caused; the case against the appellants is a pile of tainted pieces of evidence and established law is that one tainted piece of evidence cannot corroborate the other piece of alike nature; medical evidence does not support the prosecution case in any way; lastly contended that it was a case of no evidence and appellants merited acquittal herein.
9. On the other hand, learned state counsel assisted by the complainant's learned counsel has submitted that prosecution proved its case against the appellants beyond all shadows of doubt through credible evidence; the medical evidence fully supports the ocular version; all the eye- witnesses plausibly explained their presence at the spot at the relevant time of the occurrence; the appellants committed a gruesome offence by murdering three innocent youths for none of their fault, hence their sentence may be confirmed.
10. We have heard the learned counsel for the parties to the optimum and gone through the record with their able assistance.
11. The detail of the occurrence, as alleged in FIR (Exh.CW-8/CC) is hair-raising and it bleeds the heart, as the complainant (P.W.1) lost two youthful paternal cousins, Muhammad Imran and Muhammad Nawaz besides an equally young maternal nephew, Nasir Abbas. It was a bloody occurrence which took iilace, about 2-1/2 hours after midnight i.e. At 2.30 a.m. At the dhari of the complainant. Unluckily, no one was present there, when murderer(s) started butchering the ill- fated deceased persons. The witnesses, however, claimed to have reached the spot after they heard the dogs barking at about 2.30 a.m. According to the story of FIR, Muhammad Hussain (appellant) was seen running along with four unknown persons towards river Ravi, by the complainant and his companions, Muhammad Tufail (P.W.2) and Muhammad Hussain son of Mughal (PW not produced). They reached the dhari and found blood soaked dead bodies of the deceased placed on the cots, with a blood stained kassi lying near the cot of Nasir Abbas (deceased). The complainant could not immediately name the unknown accused and he rendered a supplementary statement on 25.6.2009 whereby he named Shaukat Ali (appellant) and three others, including Muhammad Shafi (since acquitted on the basis of compromise). He also brought on record the motive through the said statement whereby he alleged that Muhammad Hussain (appellant) suspected his maternal nephew Nasir Abbas (deceased) of an illicit liaison with his wife.
The complainant being dissatisfied with the investigation filed private complaint against the appellants and three others on 19.11.2009 with a self-contradictory contention, as contained in paragraph 2 thereof, whereby he contended that he and his Companions witnessed Muhammad- Hussain (appellant) and his four unknown cronies sprinting towards river Ravi, when they reached the place of occurrence on barking of the dogs. He however named Shaukat Ali (appellant), Muhammad Shafi (since acquitted), meen and Yasin (since P.O.) as accused in the same paragraph without hinting at any evidence in this context. The complainant showed himself and all of his companions, mentioned herein, as eye-witnesses of the occurrence. Is n't it a sharp deviation from the text of the FIR, yes, it is.
13. To substantiate its case against the appellants, the prosecution has relied on following pieces of evidence:- i)Eye-witness account; ii) Medical Evidence & iii) Recovery of kassi etc. We will now appraise the prosecution evidence one by one.
The prosecution produced Muhammad Ashraf (complainant/P.W.1), Muhammad Tufail (P.W . 2), Muhammad Zaman (P.W.3) and Niaz alias Aman Ullah (P.W.4) as eye-witnesses of the occurrence.
They all are first cousins inter-se, as admitted by the complainant in his testimony and they all were residents of the same village, Thatha Madhoka, which was 14/15 kilometers away from the place of occurrence. They made complete departure from their previous statements, which they rendered during the course of investigation and they were duly confronted with them but they could not offer any plausible explanation in this context. Muhammad Ashraf (complainant) did not claim to be an eye-witness of the occurrence when he got lodged the FIR (EXh.CW-8/CC) and he speculatively contended to have seen Muhammad Hussain (appellant) and his four unknown companions running towards the river Ravi, at 2.30 a.m., and he suspected them of the crime-in- issue. He did not name anyone as eye-witness of the occurrence in the FIR. In the private- complaint case (Exh.PA) he did not change his position of being a witness of circumstantial evidence and kept it intact, as to the contents of the FIR with a variation that his paternal cousins Muhammad Zaman (P.W.3) and Niaz alias Aman Ullah (P.W.4) told him names of the unknown accused as Yasin (since P.O.), Ameen (since P.O.), Shaukat Ali (appellant) and Muhammad Shafi (since acquitted). He made a startling deposition in his testimony that Muhammad Hussain accused gave a kassi blow on the body of Nasir Abbas (deceased) and threw the kassi there. He said so as if he was an eyewitness of the occurrence. He was confronted with his previous statement (Exh.DA) and it was found that innovation made by him did not exist therein. About the nomination of the unknown accused, he did not disclose any source at all. He further said that he left Niaz alias Aman Ullah (P.W.4), .Muhammad Zaman (P.W.3), Muhammad Hussain (PW not A produced) and Muhammad Tufail (P.W.2) near the dead bodies and proceeded to the police station for registration of case against the accused. He did not give any clue in the FIR or in his statement as a PW, if he was told anything by his first cousins Niaz alias Aman Ullah (P.W.4) and Muhammad Zaman (P.W.3) about the identification of the unknown accused or they were the eye- witnesses of the occurrence. Had Muhammad Zaman (P.W.3) and Niaz alias Aman Ullah (P.W.4) been present at the spot and witnessed the occurrence, in presence of the complainant and Muhammad Tufail (P.W.2), the text of the FIR would have been entirely different, as we see now. He also said that he saw the dead bodies in the lit torch but he did not contend that he saw escape of the accused towards Ravi in the light thereof. He, unlike the FIR and the complaint, did not contend in his testimony that Muhammad Hussain appellant visited him the previous evening and stayed at his dera with the unfortunate souls at the fateful night. The net impact of his testimony renders him an irrelevant person qua the occurrence.
14. Muhammad Tufail (P. W .2) rendered an equally ambiguous statement like Muhammad Ashraf (P.W.1) and introduced such factors in his testimony which were simply unbelievable. He contended that he reached the place of occurrence along with Muhammad Ashraf (complainant/P.W.1) and Muhammad Hussain son of Mughla (PW not produced) after they got up due to barking of the dogs; on reaching the dhari they found Nasir Abbas, Muhammad Imran and Muhammad Nawaz dead, with slit throats and a blood stained kassi lying near the cot of Nasir (deceased); he saw Muhammad Hussain (appellant) and four others running away towards river Ravi. He maintained in his testimony that the names of the unknown accused were told to him by Niaz alias Aman Ullah and Muhammad Zaman, who had reached the place of occurrence before he came there. He admitted in his testimony that his village was situated at a distance of 14/15 kilometers and he did not own any land close to the place of occurrence. He was confronted with his previous statement (Exh.DB) as to factum of arrival of Niaz alias Aman Ullah and Muhammad Zaman PWs at the place of occurrence before he reached there but it was not found so mentioned therein. He denied to have stated before the police that the crime 'appeared to have been committed by Muhammad Hussain. Accused (appellant) along with his co-accused but on confrontation with Exh.DB, it was found so mentioned by him. It was an assimilating circumstance, like the one, as found in the testimony of Muhammad Ashraf (complainant/P.W.1) whereby he declined to have stated before the police that he strongly suspected Muhammad Hussain (appellant) and his unknown accused of committing the crime and on confrontation it was found to have been so said by him in Exh.DA.
Muhammad Tufail (P.W.2) virtually failed to bring any worthwhile circumstance on the record which might incriminate the appellants.
15. Muhammad Zaman (P.W.3) and Niaz alias Aman Ullah (P.W.4) are self-claimed eye-witnesses of the occurrence. One thing is common between them that the complainant (P.W.1) did not cite their names in the FIR as eye-witnesses nor he quoted them as such in his supplementary statement, which he rendered on the following day of the registration of the FIR Muhammad Zaman (P.W.3) stated to have witnessed the occurrence from a distance of four kanals in the torch light.
According to his testimony, Shaukat Ali (appellant) and Muhammad Shafi (since acquitte-1) gripped hands/arms of the deceased, Yasin and Ameen (since P.O.) caught their legs and Muhammad Hussain (appellant) slit their throats one by one by means of Kassi; after their murder, Muhammad Hussain (appellant) threw kassi at the spot and they decamped towards river Ravi, within the sight of the witnesses, who had a lit torch with them. He admitted in his testimony that he did not state before the police that Niaz alias Aman Ullah (P.W.4) was with him at the time of occurrence. He denied the suggestion that he had not witnessed the occurrence nor he had made any statement before the police in this regard. He innocently stated that he watched the accused commit the crime for about 15/20 minutes "without creating any disturbance to them". It does not appear from his statement that he disclosed names of the unknown accused to the complainant (P.W.1) or Muhammad Tufail (P.W.2). In a nutshell, his testimony looks preposterous and hard to believe.
16. Niaz alias Aman Ullah (P.W.4) deposed about his arrival at the spot along with Muhammad Zaman (P.W.3) after they heard the dogs barking and saw in the torch light that Shaukat Ali (appellant) and Muhammad Shafi (since acquitted). Caught arms of the deceased persons one after the other, Yasin (since PO) and Muhammad Ameen (since PO) gripped their legs and Muhammad Hussain (appellant) slaughtered them with a kassi, which he threw near the cot of Nasir Abbas (deceased) after he killed all three. Further deposed that the accused decamped towards river Ravi. He did not exclaim as to how he knew the unknown persons or Muhammad Hussain (appellant) nor he contended that the names of the unknown accused were told to the complainant by his companion Muhammad Zaman. He is real brother of Muhammad Imran and Muhammad Nawaz (deceased) and maternal uncle of Nasir Abbas (deceased). He claimed to have seen the ghastly crime together with Muhammad Zaman (P.W.3) from a distance of two steps. Each and every word, he deposed about the commission of crime by the accused was put to him so as to draw his attention towards his statement Exh.DC recorded by the police under section 161, Cr.P.C. And it came to light that nothing of the sort had he mentioned therein. What left behind in his testimony related to the factum of recovery of blood stained earth from three places, the recovery of blood stained kassi (P1) and recovery of tea-leaves stained kettle (P2) with a cup. It only meant that he became an eye-witness of the occurrence, when complainant filed private- complaint (Exh.PA) against the appellants on 19.11.2009. He like Muhammad Zaman (P.W.3) dishonestly improved upon his previous statement and failed to offer any explanation as to why he posed himself an eye-witness of the occurrence. His testimony like that of his co-eye-witnesses does not inspire confidence nor can it be believed to have been rendered by a forthright person, hence, struck off.
17. The statements of all the eye- witnesses suffer from material discrepancies and dishonest improvements. It appears from their statements that they were neither present at the spot at the relevant hour nor they had witnessed the occurrence. The ill-fated deceased had callously been done to death, most probably by some unknown accused at some unknown time during the darkness of the night. There exists every reason to believe that the complainant found his first cousins and the nephew butchered on the following morning of the deadly night, hereafter he and his co-witnesses deliberated over the situation and reported crime to the police, as contained in the FIR. The torch was neither presented before the investigating officer nor was it taken into possession by him. If initial stance of the complainant (P.W.1) and that of Muhammad Tufail (P.W.2) as contained in their previous statements recorded by the police that they saw the accused in lit search/torch light running towards river Ravi, is taken into consideration, even then the prosecution's case hardly advances beyond the boundaries of reasonable doubt. They themselves marred believably of their testimonies by making reckless dishonest improvements and they did so without caring for the impact thereof. Their testimonies are not aboveboard nor could they be considered to have been rendered by truthful persons. They did so to paint a graver 'picture qua the occurrence.
Their conduct in making these improvements made them wholly unreliable. They did not appear to have any respect for the truth and they changed their versions without any prick of conscience, as and when it suited them. It is the settled principle of criminal jurisprudence, when a witness improves his version to strengthen the prosecution case, his changed statement could not be relied on being a dishonest rendition of events.
18. As discussed above, the witnesses of ocular account behaved unscrupulously and they showed little respect for preliminary lessons of morality and made uninhibited exaggerations/dishonest improvements in their statements, with a view to bring their case in conformity with the medical evidence and in order to fill-in the lacunae, which were left in the FIR or in the private- complaint (Exh.PA). They, for their polluted conduct, cannot be considered truthful witnesses and their testimonies which are laden with countless improvements, cannot be given any positive nod. It has been held by the apex court in Farman Ahmad v. Muhammad Inayat and others (2007 SCM R 1825) that:-- "It is also a settled maxim when witness improves his version to strengthen the prosecution case, his improved statement subsequently made cannot be relied upon as the witness had 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."
' The testimonies of the eyewitnesses, being untrustworthy are bound to be rejected, which we accordingly do.
19. Insofar as the evidence of recovery of blood stained kassi (P1) through seizure memo (Exh.PE) from the place of occurrence, attested by Niaz alias Aman Ullah (P.W.4) and Muhammad Abbas (PW not produced) is concerned, it was sent to the office of Chemical Examiner through Ghazanfar Ali 3633/C (C.W.6) and report (Exh.PG ) received therefrom is in positive and report of the Serologist (Exh.PM) as to origin of the blood, shows it as that of human being. The investigating officer ought to have preserved the finger prints thereon and obtained expert report from the Forensic Science Agency, Punjab so as to use it as an incriminating piece of evidence against the accused, but he did nothing of the sort and virtually destroyed this crucial piece of evidence .
20. The medical officer, Dr. Naseer Ahmad (C.W.1), who performed autopsy on the dead bodies of Muhammad Nawaz, Nasir Abbas and Muhammad Imran through postmortem examination reports (Exh.CW1/E, Exh.CW1/J & Exh.CW1/A), prepared samples of liver, spleen, stomach, kidneys, small and large gut, heart and lungs of each deceased for transmission to the office of Chemical Examiner for detection of poison or sedatives or tranquilizers. The reports of the chemical examiner (Exh.PJ, Exh.PK & Exh.PL) were received in positive with identical conclusions, which read as follows:-- "Tranquilizer belonging to Benzodiazepine group is detected in the above viscera. However quantitative estimation is not possible."
' This exercise also went waste only due to the dishonestly rendered testimonies of the eye- witnesses, having been brushed aside by us in the preceding paragraphs. If ill-fated deceased had been administered tranquilizer and they had turned unconscious before they were murdered, how come it could be believed that their arms and legs had been caught by Shaukat Ali (appellant) and his co-accused, when their throats were allegedly cut by Muhammad Hussain (appellant). The blade of the weapon used must be as sharp as a razor otherwise such type of injuries (incised wounds), as mentioned by the medical officer in the necropolis reports (Exh.CW1/A, Exh.CW1/E & Exh.CW1/J) could not be caused by means of a kassi, which generally did not bear such sharpness.
Alas, it would remain hidden as to how and by whom the said weapon had been used to commit such a catastrophic act. The delinquent in this regard would be the faltering investigating officer and 'not ready to tell the truth,' the prosecution witnesses. The medical evidence being a corroboratory circumstance, cannot identify the author(s) of bodily injuries of a dead or a living person and same is the situation here.
21. The upshot of the above discussion is that the prosecution has miserably failed to bring home the guilt of the appellants beyond reasonable shadow of doubt. The impugned judgment and has been passed merely on conjectural and whimsical reasons, which cannot be approved of. The impugned conviction and sentence of the appellants is set-aside and both the appellants, Shaukat Ali and Muhammad Hussain are acquitted of the charge. They shall be released forthwith if not required in connection with any other case. Their appeals stand accepted.
22. Death sentence awarded to the appellants is NOT confirmed and Murder Reference No.13 of 2011 is answered in negative.