ASSADULLAH KHAN CHAMKANI, J.---Our this common judgment shall dispose of the instant criminal appeal as well as connected Cr.R. No,32-B/2012, titled, "Abdur Razique v. Sher Azam", as both are stemming out of the same judgment of the trial court/Sessions Judge, Karak dated 01.06.2012, whereby the appellant has been convicted under section 302(b), P.P.C. And sentenced to undergo rigorous imprisonment for life and to pay Rs,2,00,000/- as compensation within the meaning of section 544-A, Cr.P.C. To L.Rs, of deceased and in default thereof to undergo 6 months'
S.I. Further, in case FIR No,356 dated 20.10.2010, registered under section 302, P.P.C. Read with section 13 of the Arms Ordinance, 1965 at Police Station Karak, District Karak. Benefit of section 382-B Cr.P.C.
Has been extended in his favour.
2. As per contents of murasila Exh.PA/1, on the basis of which FIR Exh.PA has been registered, Abdur Raziq (PW.11), in company of dead body of his brother Naseer Ahmad, reported to Hafiz ur Rehman ASI. (PW.7) in emergency room of Civil Hospital KDA, Karak that on the fateful day he along with his brother Naseer Ahmad deceased and cousin Tahir Naqash had gone to Karak Bazaar for purchasing house hold articles. At 09.00 a.m. When they reached on metalled road near Aftab Medical Store, accused Sher Azam, armed with .30 bore pistol came after them and fired at his brother Naseer Ahmad with intention to commit his murder, resultantly, he was hit and died on the spot. After the occurrence, the accused decamped from the spot. Motive behind the occurrence is dispute over women dignity. In addition to complainant, the occurrence is stated to have been witnessed by Tahir Naqash.
3. On completion of investigation, challan was submitted against the accused/appellant before the learned trial court, where he was summoned and formally charge sheeted to which he pleaded not guilty and claimed trial. In order to prove the guilt of appellant/ accused, prosecution examined as many as fourteen witnesses. After close of the prosecution evidence, statement of accused/appellant was recorded under section 342, Cr.P.C. Wherein he denied the prosecution allegations and professed his innocence. He neither wished to be examined on oath nor opted to produce evidence in defence. On conclusion of trial, learned trial court after hearing both the sides, convicted and sentenced the appellant, as mentioned above.
4. Learned counsel for the appellant argued that the impugned judgment of the trial court is the result of misreading and non-reading of evidence available on file; that complainant and Tahir Naqash, who are alleging to be the eye-witnesses of the occurrence are procured witnesses and they have not established their presence on the spot at the time of the alleged incident; that their testimony is full of contradictions and dishonest improvements; that medical evidence is in conflict with the ocular account and other pieces of circumstantial evidence also do not corroborate the version of the complainant. He went on to say that the prosecution case is pregnant of doubts, benefit of which is to be extended to the accused/appellant and he be acquitted.
5. Conversely, learned counsel for the complainant contended that appellant/ convict is directly and singularly charged for murder of the deceased in a daylight occurrence, who had been arrested red handed on the same day along with crime weapon; that complainant and PW Tahir Naqash are natural and straightforward witnesses who have furnished the ocular account of the occurrence, which is trustworthy and confidence inspiring corroborated by other circumstantial pieces of evidence such a recovery of crime empties from the spot, recovery of weapon of offence from direct possession of the accused, bloodstained earth from the place of the deceased and his last worn garments stained with blood coupled with positive FSL report; that medical evidence is also in line with the ocular account, hence, the learned trial court has rightly held him guilty of the offence. He went on to say that when the guilt of the appellant was proved up to the hilt, then the learned trial court ought to have awarded him maximum sentence as there is no mitigating circumstance which may call for leniency in the quantum of sentence. He sought dismissal of the appeal and acceptance of revision petition for enhancement of sentence.
6. We have considered the exhaustive arguments of the learned counsel for the parties and perused the record with their valuable assistance.
7. No doubt, accused/appellant is directly and singularly charged for murder of the deceased. True that the Hon'ble Supreme Court has held in so many pronouncements that substitution of single accused in a murder charge is a rare phenomenon, but still to put the rope around the neck of an accused charged singularly, there must be ocular account of unimpeachable character, trustworthy and confidence inspiring, corroborated by other material circumstantial evidenceComplainant Abdur Raziq (PW.11) is the real brother of deceased Naseer Ahmad while Tahir Naqash is his cousin. Illicit relation of the deceased with the wife of the accused/appellant has been alleged as motive, so in this way both the PWs are not only closely related to the deceased, but also inimical towards the accused. There is no denial of the fact that conviction can be recorded on the testimony of close relative of the deceased provided the same is true, straightforward, confidence inspiring and corroborated by other material pieces of circumstantial evidence as well as medical evidence, however, in such like cases the courts are duty bound to assess and evaluate the evidence of such witnesses with great care and caution. Thus, we have to evaluate and assess the testimony of the eyewitnesses named above at the touch stone of the aforesaid principles.
8. A look over the initial report/ murasila of the complainant (PW.11) reveals that he has categorically stated therein that when the deceased was hit with the firing of the accused, he fell on the ground and died on the spot, but in his cross- examination he has totally negated his story by stating that it is incorrectly recorded in his report that his' brother Naseer Ahmad after receiving firearm injuries expired on the spot. He deposed that when the injured was taken to old hospital Karak, the doctor declared him as dead. In his examination in chief he has also introduced a new story of chasing the accused and apprehending him by a police constable along with crime pistol.
The improvement made by the complainant in his statement is actually the result of statement of Muhammad Qasim constable No,676 (PW.1), which has been recorded on 24.03.2011, prior to the statement of complainant and PW Tahir Naqash, so the complainant in order to bring in line the case with the statement of (PW.1) deposed that it was 9.00 a.m. When they reached in front of Aftab Medical Store, accused Sher Azam armed with .30 bore pistol came there from backside and fired at his brother Naseer Ahmad, as a result he was hit and fell down while the accused along with pistol decamped towards old hospital; that he rushed towards his brother and a police constable came on a motorcycle from bazaar side, people present in the bazaar pointed out the accused to constable, who was running towards the old hospital; that they picked his brother and took him to emergency ward of old hospital where the doctor examined him and declared him dead; that an ambulance was called for shifting the deceased to KDA hospital Karak for postmortem examination; that they took his deceased brother to KDA hospital in the ambulance and straightaway took him to emergency; that after some times, the police arrived to KDA hospital, before whom he lodged report. Not a single word has been stated by the complainant in his report about chasing of the accused by a police constable named above, shifting of the deceased to old hospital Karak first, and then to. The KDA, hospital. Similarly, PW.12 Tahir Naqash, in order to bring the story in line with the complainant (PW.11), he also deposed about reaching of police constable to the spot on motorcycle but he had added little more by stating that "in the meanwhile one constable riding on the motorcycle also reached the spot from the Bazaar side who also witnessed the occurrence and people present there pointed out that the accused ran towards the old hospital; that constable straightaway went after the accused while they shifted deceased Naseer Ahmad to old hospital Karak, where the doctor examined him and declared him dead. In cross- examination PW while contradicting the report of Complainant stated that the deceased was alive on the spot, however, when they shifted him to the hospital he expired. He further deposed in his cross-examination that blood was not oozing from the wounds of Naseer Ahmad when he was being shifted by them from the spot to old hospital Karak that's why their clothes were not smeared with blood, which seems quite unbelievable. He in order to justify his above stance deposed that the deceased was taken by holding him from his arms and legs without taking him. In laps. This conduct of the PW is also unnatural because no brother and close relative would like to hold his severely injured brother like an animal from the hands and legs while shifting him to the hospital.
Both the PWs have totally negated the earlier version of the complainant and have introduced some new story which amounts to dishonest improvements. It is settled law that dishonest improvements in the statements of the PWs in order to fill up lacunas; would not be. Safe, in circumstances, to rely upon their statements for maintaining the conviction and sentence.. From the statements of the PWs i,e, complainant and Tahir Naqash, their presence with the deceased at the relevant time of the occurrence is doubtful and not reliable in view of serious contradictions in their statements and dishonest improvements, particularly, their complete departure from the contents of FIR as a consequence whereof, the statements of complainant and PW Tahir Naqash had lost credibility and evidentiary as per the golden principle that if a witness makes dishonest improvement in his statement, then he cannot be relied upon to maintain conviction of accused on a capital charge.
' The Hon'ble Supreme Court in case titled, "Farhan Ahmad v. Muhamamd Inayat and others" (2007 SCM R 1825) while dilating upon the evidentiary value of improved statement observed as under:-- 'It is also a settled maxim when a witness improves his version to strengthen the prosecution case, his improved statement subsequently made cannot be relied upon as the witness 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 same point has been discussed by the apex Court in case titled, "Ibrahim Hussain and others v.
State and another" (2007 SCM R 605) as following:-- ' It is a settled law that witness making improvements and changing version as and when suited according to the situation then such type of improvements were found deliberate and dishonest, therefore, cause serious doubt on the veracity of such witness.
'The same view has been reiterated by the apex Court in case titled, "Muhammad Jamil v.
Muhammad Akram and others" (2009 SCM R 120). Moreover, once a witness is found telling lie on one material aspect of the case, then, ordinarily he/she could not be believed with regard to the other aspect of the case, unless the testimony given is fully corroborated by strong independent corroboration, which is lacking in the instant case. Moreover, the complainant and PW Tahir Naqash has admitted the presence of people at the spot at the time of occurrence. They have also admitted the presence of shopkeepers in their shops, situated near the place of occurrence but none from the shopkeepers or the people present in the Bazaar has been examined to testify about the occurrence.
9. As regard recovery of crime pistol. P.W. Muhammad Qasim has been examined as PW.4. He has narrated the story of fleeing away the accused from the spot and his chase. He deposed that on the report of fire shots he saw a person lying on the road while one other person was running towards old bazaar; that he started chasing him on his motorcycle and after covering some distance, he overpowered him and recovered one pistol with fixed charger, a spare charger, a bandolier with 9 live rounds from his possession; that in the meantime, constables Ibrahim Khan and Ihsan Ullah reached there and took the accused to police Station and handed him over to S.I.
Rehman Khan. From the story of PW.4, on one hand question arises that when he arrested the accused, for what reason he handed him over to constables Ibrahim and Ihsan Ullah, who then allegedly produced him before Rehman Khan S.I. Because in such situation the police personnel tries to show and prove their efficiency and to get award from their high up while arresting the accused involved in murder cases. Moreover, PW.4 has totally negated the version of PW Tahir Naqash that he has also witnessed the occurrence. In cross-examination PW.4 categorically stated that he has not seen the incident with his own eyes. He admitted the presence of people in the Bazaar and that on their pointation he chased the accused and arrested him, but no one from those people has been cited as marginal witness to the recovery memo or even to depose in favour of PW.4 regarding his chase and arrest of the accused. PW.4 has not stated anything about association of independent witness to recovery memo nor has deposed that any efforts were made by him in this regard. Similarly, Muhammad Rehman SI (PW.13), before whom the accused was produced along with recovered pistol, has not deposed about his effort of any independent witness to recovery memo. Besides, no case under section 13 A.O. Has been registered separately.
The prosecution ought to have registered a separate case under section 13 of the Arms Ordinance, 1965 by narrating the story advanced by PW.4 Muhammad Qasim. In view of the above, the recovery of alleged crime weapon is highly doubtful and is planted one. Thus, in absence of any independent witness and when the direct evidence of the alleged eye-witness has been disbelieved, then it would not be safe to base conviction on recovery of pistol which is corroborative piece of evidence. It has been held by the Hon'ble Supreme Court in case titled, "Muhammad Jamil v. Muhammad Akram and others" (2009 SCM R 120) that " when the direct evidence is disbelieved, then it would not be safe to base conviction on corroborative or confirmatory evidence". So similar is the case of other pieces of circumstantial evidence such as bloodstained earth, bloodstained garments of the deceased and medical evidence i,e, autopsy of the deceased, which though can only prove that the deceased has been done to death with firearm on the place of occurrence but by no means when the direct evidence has been disbelieved, can prove that it was the accused who committed this murder.
10. It is cardinal principle of administration of criminal justice that prosecution is bound to prove its case beyond any shadow of doubt. If any reasonable doubt arises in the prosecution case, the benefit of the same must be extended to the accused not as a grace or concession, but as a matter of right.
' Likewise, it is also well embedded principle of criminal justice that there is no need of so many doubts in the prosecution case, rather any reasonable doubt arising out of the prosecution evidence; pricking the judicious mind is sufficient for acquittal of the accused. Basically, it is the principle enshrined in Islamic jurisprudence, fourteen hundred years ago that "it would be better to acquit hundred culprits than convicting one innocent soul." Which has now been transformed into the form of the principle that, "acquitting by error would be better than convicting by error". The said commandment has evolved into the theory of benefit of doubt, which, invariably, is extended to the accused for safe administration of criminal justice.
11. In wake of our above discussion, we have reached to an irresistible conclusion that the prosecution has failed to establish the guilt of the accused through cogent and confidence inspiring evidence of unimpeachable character; that statements of the alleged eye-witnesses are pregnant of doubts and suffering from material contradictions and dishonest improvements which escaped the notice of the learned trial Court and thereby reached to a wrong conclusion.
Resultantly, this appeal was allowed and the following short order of even date was passed which is reproduced as follow:-- "For the reasons to be recorded, later on, we allow this appeal, set aside the conviction and sentence of appellant/convict Sher Azam Khan, recorded by learned trial Court/learned Sessions Judge Karak vide impugned judgment dated 01.06.2012, in case FIR No,356 dated 20.10.2010, registered under section 302, P.P.C. Read with section 13 of the Arms Ordinance, 1965 and hereby acquit him of the charges levelled against him. He be set at liberty forthwith, if not required in any other case. On acquittal of the appellant, connected Cr. R. No,32-B/2012, titled, "Abdur Razique v.
Sher Azam" has become infructuous, which stands dismissed as such".