KHALID MAHMOOD MALIK, J. Through this appeal under section 410 Cr.P.C. the appellant Bashir Ahmad has challenged the vires of judgment dated 29.04.2015, delivered by learned Addl. Sessions Judge, Ahmadpur East, District Bahawalpur , through which, the appellant was convicted under section 302(b), 337-A(i), 337-L(ii) and 34 PPC in case/F .I.R. No.221/2010, dated 25.07.2010, offence under sections 324/337-A(i)/337-L(ii) PPC, registered at police station Saddar , Ahmadpur East and sentenced in the following manner:- "Sentenced to imprisonment for life u/s 302(b) read with section 34 PPC. The convict shall also pay Rs.2,00,000/- as compensation to the legal heirs of the deceased Mohammad Ramzan, u/s 544-A Cr.P.C.
Sentenced to R.I for two years alongwith Daman of Rs.20,000/- u/s 337-A(i)/34 PPC, R.I for 10 years alongwith Arsh, amounting to 10% of Diyat for the year 2010-201 1 and R.I for two years u/s 337-L(ii)/34 PPC alongwith Daman of Rs.5000/-, to the injured.
The convict Bashir Ahmad is acquitted from the charge u/s 324 & 148 PPC.
All the sentences awarded to the convict Bashir Ahmad shall run concurrently and he will also have benefit of section 382-B Cr. P C. Whereas the co-accused Rasheed Ahmad, Jam Bana and Ghulam Shabbir were acquitted of the charge."
2. The edifice of the prosecution case is based on the statement of Muhammad Waseem, who being complainant appeared as (PW -6) before trial court and stated as under:- "Stated that about four years ago at about 8.00 p.m. I was present at the shop of Rasheed. I was coming back from the shop of said Rasheed, when reached near Khola of Haji Rahim Bakhsh, I saw accused Rasheed Ahmad armed with hatchet, Bagoo and Bashir Ahmad armed with Soti. Rasheed accused inflicted hatchet injury on my left side of head. Baggo accused inflicted Soti blow near my right eye (the PW hinted with his finger on the left eye). Bashir Ahmad accused inflicted Soti blow on my back. On my raising noise, Shabbo and Banna accused, both armed with hatchets came there. My brother Muhammad Ramzan, Elahi Bakhsh my father and Mushtaq PW attracted. The above said accused, leaving me aside, started torturing my brother Ramzan with fists and legs. Because of their torture, Ramzan injured became senseless. I went to the hospital. At about 1.00 night Irshad A.S.I. came to hospital where he recorded my statement Exh-PC bearing my thumb impression Exh- PC/2.
On the following day 25.7.2010, I submitted application to the S.H.O. P/S. Ahmadpur East Exh PH bearing my thumb impression Exh-PH/1. My brother Ramzan was taken in injured condition to BVH Bahawalpur where he remained under treatment for 2.1/2 months and thereafter expired. My deceased brother Muhammad Ramzan, in his life time and after restoring his senses told me that the fatal injury with Sota blow on his head was inflicted by Bashir Ahmad present in the court. After autopsy of the dead body of deceased Ramzan, it was delivered to me vide receipt Exh PJ bearing my signature Exh-PJ/1.
The motive behind the occurrence was Watta Satta marriage between my sister Rukhsana with Arshad who is nephew (Bhanja) of Bashir Ahmad accused. Said Rukhsana was tortured by the accused party and was kicked out from the house. In exchange marriage of Pappo who is niece (Bhanji) of Bashir Ahmad was settled with Hanif my real brother, but this exchange (Watta Satta) commitment of marriage was not honoured by the accused party and committed this occurrence."
3. After observing legal formalities, trial was commenced, charge was framed against accused/appellant coupled with his co-accused to which they pleaded not guilty and claimed trial. In support of its version, prosecution examined Abdul Rasheed 1666/C (PW-1) who is witness of recovery of soti (P1) allegedly recovered on the pointation of accused Jam Bago. Ejaz Hussain Khan, Inspector/S.H.O (PW-2) deposed regarding submission of incomplete report u/s 173 Cr.P.C. Riaz Ahmad S.I (PW-3) recorded formal F.I.R. (Ex:PB) on the basis of complaint (Ex:PC). Dr. Syed Sabir Abbas (PW-5) had medically examined Muhammad Ramzan, Muhammad Waseem, complainant/ injured and also conducted post mortem examination of Muhammad Ramzan.
Muhammad Waseem, complainant/injured (PW-6) and Mushtaq Ahmad (PW-7) furnished ocular account. Izhar Ahmad 863/C (PW-8) transmitted dead body of Muhammad Ramzan to mortuary and thereafter handed over last worn clothes lungi (P1) and shirt (P2) to the Investigating Officer.
Muhammad Rafique 736/C (PW-9) is the witness in whose presence Izhar Ahmad 863/C handed over last worn clothes of Muhammad Ramzan, deceased to the Investigating Officer. Muhammad Ayub, Patwari Halqa (PW-10) prepared scaled site plan (Ex:PL). Muhammad Hanif (PW-11) is the witness in whose presence Bashir Ahmad got recovered soti (P3). Hafiz Muhammad Jameel Inspector/S.H.O (PW-12) prepared and submitted supplementary report u/s 173 Cr.P.C. Ejaz Hussain Khan, Inspector (PW-13) prepared incomplete challan. Irshad Ahmad A.S.I. (PW-14) was the Investigating Officer, who conducted formal investigation of the case. After completion of prosecution evidence, the appellant and other co-accused were examined under Section 342 Cr.P.C. and entire evidence produced by the prosecution was put to them in shape of questions. In his statement recorded under section 342 Cr.P.C, the appellant has controverted the allegations leveled against him by the prosecution and he had also professed his innocence. In reply to a question that why this case against him and why PWs have deposed against him, accused/appellant Bashir Ahmad replied as under:- "There was dispute between the compla inant party and me over property/agric ultural land transferred through mutation No.229 dated 16.02.2002 and mutation No.326 dated 05.06.2002 of Mouza Mithu Lar. Due to this grudge the complainant party falsely involved me and my brother Rasheed in this case. The PWs due to their interse relationship deposed against me falsely ."
The appellant Bashir Ahmad did not appear as his own witness under Section 340(2) Cr.P.C. However , in defence evidence, he produced Sajjad Hussain (DW-1), Jam Allah Ditta (DW-2) and closed defence evidence by producing copies of mutations and civil suit Mark-A to Mark-C. After conclusion of trial, learned trial court convicted and sentenced the appellant as described supra whereas co-accused Rasheed Ahmad, Jam Banna and Ghulam Shabbir were acquitted.
4. It has been argued by learned couns el for appellant that prosecution has miserably failed to prove its case against the appellant beyond any shadow of doubt; that there are contradiction s in the statements of the eye- witnesses; that the complainant has changed his version with regard to injury attributed on the person of Muhammad Ramzan deceased; that the learned trial court has acquitted the co-accused on the same set of evidence; that recovery of Soti (P3) was planted against the appellant; that the alleged recovery was effected after the lapse of 04 months of occurrence; that motive has been disbelieved by the learned trial court. Lastly he prayed that appellant be acquitted from the charge by accepting this appeal.
5. Conversely , learned Deputy Prosecutor General assisted by learned counsel for the complainant pleaded that prosecution has proved its case against the appellant through solid and convincing ocular account, recovery of weapon and medical evidence coupled with motive; that the case of appellant was not at par with his co-accused who have been acquitted. Lastly he prayed for dismissal of this appeal.
6. Having heard learned counsel for the parties, survey of record, evidence and perusal of impugned judgment, it appears that learned trial court has not appreciated the evidence in its true perspective. The case of prosecution is not free of doubts. Initially , the F.I.R. was lodged under section 324/34 PPC and later-on offence under section 302 PPC was added as Muhammad Ramzan injured died on 14.10.2010. The case of prosecution is mainly based on ocular account furnished by Muhammad Waseem, complainant (PW-6) and Mush taq Ahmed (PW-7), recovery of weapon i.e. Soti (P3), medical evidence and motive. In the F.I.R, the role attributed to the convict/ appellant and co- accused was that Rasheed Ahmad inflict ed hatchet blow on the left side of head of complainant. Baggo accused gave soti blow near his right eye. Bashir Ahmed appellant inflicted soti blow at the back of complainant. On hue and cry, Muhammad Ramzan brother of the complainant attracted at the spot. The accused persons by leaving the complainant started torture to his brother Muhammad Ramzan with fist and kicks blows. Muhammad Ramzan became senseless. In examination-in-chie f, complainant (PW-6) reiterated the same facts. He further stated that on the following day i.e. 25.07.2010, he submitted an application to the S.H.O. Police Station Saddar Ahmedpur East (Ex.PH) which bears his thumb impressions Ex.PH/1. In the F.I.R. and in first portion of his examination-in-chief, complainant has not attributed specific injury to the appellant. He has changed his version in the applications dated 25.07.2010 (Ex.PH) and 09.10.2010 (Ex:PH/2). In complaint (Ex:PC) it was alleged by the complainant that:- {{URDU TEXT}} In the application dated 25.07.2010 (Ex.PH), Muhammad W aseem, complainant stated that:- {{URDU TEXT}} Thereafter , he again moved an application (Ex:PH/2) on 09.10.2010 alleging therein that:- {{URDU TEXT}} In the F.I.R. no specific injury is attribute d to appellant on the person of Muham mad Ramzan deceased and he allegedly caused soti blow on the back of complainant. The version of complainant is self contradictory and his statement does not inspire confidence. Further in second portion of examination-in-chief, Muhammad Waseem, complainant (PW-6) stated that "my deceased brother Muhammad Ramzan, in his life time and after restoring his senses told me that the fatal injury with Sota blow on his head was inflicted by Bashir Ahmad". In cross- examination, he stated that "It is correct that in my said application Exh-PH/2 I had mentioned that my brother Ramzan after sustaining torture with legs and fists of the accused, had become un-conscious and remained under treatment till 4.10.2010, and during this period he was unable to speak and utter anything and resultantly expired due to injuries. Dr. Syed Sabir Abbas (PW-5) stated that "I examined Mohammad Ramzan, deceased of this case, who was brought in unconscious condition by Javaid Mohsin 2012/C in company of his father Elahi Bakhsh."
Mushtaq Ahmed (PW-7) stated in his examination-in-chief that "In our sight Rasheed Ahmad accused inflicted hatchet injury on the left side of head of Waseem. Baggo inflicted Soti blow near the right eye. Bashir accused inflicted blow on the back of Waseem. On our raising noise Muhammad Ramzan came there and in order to assist the above accused, Banno and Shabo armed with hatchets also came there. Shabo accused inflicted injury with his hatchet on the left side of head of Muhammad Waseem. Banno accused alongwith others started beating Muhammad Ramzan. Because of severe beating victim Muhammad Ramzan became senseless. Muhammad Rashid and Muhammad Bashir inflicted soties blows on the head of Muhammad Ramzan." While according to the contents of F.I.R "Muhammad Rasheed was armed with hatchet ". The statements of both the eye-witnesses are at variance. Muhammad Rasheed, Jam Banna and Ghulam Shabbir alias Shaboo were acquitted of the charge while Jam Baggo was expired during trial and proceedings against him were abated vide order dated 24.10.2012. No appeal against acquittal of Muhammad Rasheed, Jam Banna and Ghulam Shabbir alias Shaboo was filed, as such, impugned judgment to their extent has attained finality .
7. Learned trial court had acquitted co-accused of appellant Muhammad Rasheed, Jam Banna and Ghulam Shabbir alias Shaboo on the same testimonies, which do not inspire confidence and convicted and sentenced to appellant as stated in para 1 of the judgment. Now it is settled by this court as well as apex Court that "if evidence of the same witness has been disbelieved to the extent of one set of accused persons, then same could only be believed against the other set of accused persons, if the same was corroborated by any independent piece of evidence" i.e. lacking in the present case. In this regard wisdom has been gained from case titled "RASHID MASIH versus The STATE" (2015 YLR 1293) and " IFTIKHAR HUSSAIN and others versus THE STATE"(2004 SCMR 1185). No-doubt PWs have no previous enmity with the accused/appellant but mere absence of enmity of the witnesses with the accused would not stamp their statements with truth. Reliance is placed upon case law titled "Muhammad Iqbal versus Abid Hussain alias Mithu and 6 others" (1994 SCMR 1928). The ocular account furnished by prosecution does not inspire confidence/trust worthy, therefore, same is disbelieved.
8. The medical evidence produced by the prosecution, in view of the fact that the ocular account has been disbelieved, is also inconsequential to establish the guilt of the appellant because it is now settled that "medical evidence is corroborative piece of evidence which makes the ocular evidence with regard to seat of injury and its duration, nature of injury and kind of weap on used for causing such injury but it would not connect the accused with the commission of crime ." In this regard reliance is placed upon case titled "GHULAM MUST AFA and another Vs. STATE" (PLJ 2010 SC 522) .
9. The recovery of weapon Soti (P-3) has no evidentiary value as the alleged occurrence took place on 24.07.2010 while weapon of offence i.e. soti (P-3) was recovered on pointation of accused/appellant on 05.12.2010, after lapse of more than four months and 11 days of the occurrence and appellant has full opportunity to destroy the same.
Further Soti was not blood stained and of common pattern which can be easily available.
10. The motive behind the occurrence as alleged in the F.I.R. was that Jam Rasheed etc. got contracted marriage of his nephew with Mst. Rukhsana, his sister about 1 /2 years prior as "Watta Satta" and in "Watta" Mst. Naseem sister of Muhammad Arshad was to be given to his brother Muhammad Hanif. They demanded marriage and in consequence, they injured complainant and his brother Muhammad Ramzan. The main witnesses of motive i.e. Mst. Rukhsana and Mst. Naseem were not produced before the Investigating Officer or in the trial court. Further Investigating Officer did not probe the motive part of the occurrence. In these circumstances, the learned trial court has correctly disbelieved the motive part of the occurrence.
11. The nutshell of the above discussion is that prosecution case is not free of doubts, benefit of doubt must accrue in favour of accused as the Hon'ble Supreme Court of Pakistan has held in case titled "Muhammad Khan and another Vs. State" (PLJ 2000 SC 1041) that it is axiomatic and universal recogniz ed principle of law that conviction must be founded on unimpeachable evidence and certainty of guilt and hence any doubt that arises in prosecution case must be resolved in favour of accused. Moreover it is cordial principle of crimina l jurisprudence that a single instance caused a reasonable doubt in the mind of Court entitles the accused to the benefit of doubt not as a matter of grace but as a matter of right. Reliance is placed on case law titled as "Muhammad Akram versus The State" (2009 SCMR 230 ) and "Tariq Pervaiz Vs. The State" (1995 SCMR 1345 ).
12. In the light of above discussed facts, prosecution has failed to prove its case against appellant beyond any shadow of doubt. Therefore, instant appeal is accepted, conviction and sentence of appellant Bashir Ahmad, awarded by learned trial court vide impugned judgment dated 29.04.2015 is set aside and accused/appellant Bashir Ahmad is acquitted of the charge by extending him the benefit of doubt. Appellant Bashir Ahmad is directed to be released forthwith, if not required in any other case. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.