1. Muhammad Iqbal son of Kalay Khan, Caste Mayo, resident of Rampura Khurd Police Station, Hadyara Lahore, the appellant along with his co-accused Abdul Qayyuni (since acquitted), Hakim Ali (since murdered during trial) and Nazir Ahmad (since acquitted) was involved in a private complaint dated 07.03.2000, registered under Sections 302, 34, P.P.C., at Police Station, Hadyara Lahore as well as State case F.I.R. No. 11-1999 dated 20.01.1999, offence under Sections 302, 34, P.P.C., registered at Police Station, Hadyara Lahore and was tried by the learned Additional Sessions Judge, Lahore. The learned trial Court seized with the matter in terms of judgment dated 15.03.2014 convicted the appellant under Sections 302(b), P.P.C., and sentenced to Imprisonment for life with the direction to pay compensation amounting to. Rs. 1,00,000/-, which if realized/recovered would be distributed among each legal heir 'of the deceased and in case of default thereof, the accused would further undergo six months simple imprisonment.
2. 2.Being aggrieved by the judgment of the learned trial Court, the appellant,. Muhammad Iqbal has assailed his conviction and sentence by way of filing instant Criminal Appeal No. 575 of 2014 whereas the petitioner-complainant, Abdul Sattar being dis-satisfied with the judgment dated 15.03.2014, preferred a Criminal Revision No. 635 of 2015 for enhancement of sentence of the appellant and also filed a Petition for Special Leave to Appeal under Section 417 of Cr.P.C. As all the matters are arising out of one and the same judgment, therefore, they are being disposed of through a single judgment.
3. 3.The prosecution story as contained in the private complaint (Ex.PB) filed by Abdul Sattar (PW-1)- the complainant is that on 20.01.1999 at about 3.45 p.m., the complainant (PW-1) was coming from his (PW-1) dera towards his (PW-1) house and he (PW-1) saw that the accused persons i.e. Iqbal, Nazir, Qayyum and Hakim Ali were firing at his (PW-1) house whereupon the complainant (PW-1) asked his (PW-1) son namely Muhammad Ishfaque (PW-3) about the cause of firing, upon which, Muhammad Ishfaque (1'W-3) informed him (PW-1) that the accused persons were asking for Mushtaq (since dead) in order to teach him (Mushtaq-since dead) a lesson and to murder him (Mushtaq-since dead). Whereupon, the complainant (PW-1) came out from his (PW-1) house and proceeded towards the accused persons, who were going towards Wadday Rampura. The complainant (PW-1) saw that the accused-Iqbal was armed with a .12-bore gun, the accused- Hakim Ali was equipped with a .12-bore gun, the accusedNazir was armed with a Mouzer whereas the accused-Qayyum had a sota. When the complainant (PW-1) reached near the accused persons, he (PW-1) saw that his son Mushtaq (since dead) was coming from Wadday Rampura towards his (Mushtaq-since dead) house (Raampura Khurd). The accused-Qayyum and Nazir encircled Mushtaq (since dead) and caught hold of him (Mushtaq-since dead) by his arms and started abusing him (Mushtaq-since dead). The accused-Hakim All raised lalkara by stating that he (Mushtaq-since dead) was his (the accused-Hakim Ali since murdered during trial) enemy and he (Mushtaq-since dead) would not let alive whereupon; the accused-lqbal fired at Mushtaq (since dead) from a distance of 4/5 feet, which hit on the chest of Mushtaq (since dead) upon which, Mushtaq (since dead) fell down and succumbed to the injury at the spot. The alleged occurrence was witnessed by Muhammad Ishaque (PW-2), Muhammad Sardar (PW-4) and Muhammad Din. The accused persons fled away towards Wadday Rampura after the alleged occurrence. The complainant (PW-1) after leaving the dead body of Mushtaq (since dead) under the escort of Muhammad Riaz (PW-7) and Muhammad Ramzan (PW-5), rushed towards the Police Station for reporting the incident.
4. 4.The motive behind the occurrence is that the accused-Hakim Ali (since murdered during trial) had lodged a criminal case bearing F.I.R. No. 24 of 1993 dated 22.04.1993, offence under Sections 12/7/79 offence of Zina (Enforcement of Hudood) Ordinance, 1979 and Sections 342, 294, 377, 511 of, P.P.C., at Police Station, Hadyara against Mushtaq (since dead) and others, which was later on found to be false and was cancelled, whereupon the accused-Hakim Ali (since murdered during trial) nourished grudge and as a result whereof, the alleged occurrence took place.
5. 5.As per police karwai, Muhammad Aslam, S.I. (PW-10) along with Muhammad Hayat 2545/Head Constable, Ghulam Mustafa 7753/C, Muhammad Akram 1878/C, Muhammad Mushtaq 8042/C and Karamat Ali 8063/C was present at Harrikay Road near Giwindi Morr in connection with patrolling, where the complainant (PW-1) met Muhammad Aslam, 5.1. (PW-10) and made statement which was reduced into writing (Ex.PA) by Muhammad Aslam, S.I. (PW-10) and the complainant (PW-1) marked his left thumb as a token of its correctness. Thereafter; Muhammad Aslam, S.I. (PW-10) sent the complaint (Ex.PA) to the Police Station through Karamat Ali 8063/C for registration of formal F.I.R.
6. 6.Earlier on the statement/fard bayan of the complainant (PW-1), the F.I.R. was chalked out by Maddad Ali Haider, A.S.I (given up-PW). Thereafter, the investigation was entrusted to Muhammad Aslam, S.I. (PW-10), who visited the place of occurrence and secured blood-stained earth vide recovery memo. (Ex.PB). The Investigating Officer (PW-10) prepared injury statement (Ex.PJ) and sent the dead body of Mushtaq (since dead) to Mayo Hospital, Lahore for postmortem examination under the escort of Ghulam Mustafa 7753/Head Constable (PW-8) and Muhammad Hayyat, 2545/C (given up- PW). The Investigating Officer (PW-10) collected crime empties through recovery memo. (Ex.PC) and also recorded statements of the prosecution witnesses under Section 161 of Cr.P.C. After post-mortem examination, Ghulam Mustafa 7753/Head Constable (PW-8) and Muhammad Hayyat, 2545/C (given up-PW) produced last worn clothes of the deceased i.e. Shalwar (P-1), Qameez (P-2), Bunyan (P-3), Sweater (P-4) before the Investigating Officer (PW-10), who took the same into possession vide recovery memo. (Ex.PE). On 17.02.1999, the Investigating Officer (PW-10) arrested the accused persons-Muhammad Iqbal, Hakim Ali and Abdul Qayyum.
7. During the course of interrogation, the accused-Muhammad Iqbal led to the recovery of a gun .12- bore (P-5) along with four cartridges (P-6/1-4), a license (P-7) and one live cartridge (P-8), which were taken into possession by the Investigating Officer (PW-10) vide recovery memo. (Ex.PF) whereas the accused-Abdul Qayyum got recovered a sota (P-9) which was also taken into possession by the Investigating Officer (PW-10) through recovery memo. (Ex.PG). On 22.01.1999, the Draftsman prepared scaled site-plans (Ex.PK and Ex.PK/1) and handed over the same to the Investigating Officer (PW-10) . on 23.01.1999. Thereafter, investigation was entrusted to Saleem Ullah Khan, Inspector (CW-1), who arrested the accused-Nazir Ahmad on 03.08.1999 and sent to judicial lockup. Later on, Rana Shaukat, D.S.P Crime Branch, Punjab Lahore declared the accused-Abdul Qayyum, Hakim Ali and Nazir Ahmad innocent having not found them involved in the commission of the offence and prepared report under Section 173 of Cr.P.C., and sent the same to the Court of Sessions en-routed through learned Illaqa Magistrate as provided under Section 190(2) of Cr.P.C.
8. Later on, the complainant (PW-1) being dissatisfied with the investigation, filed a private complaint (Ex. PB) against all the accused persons during pendency of the State case before the learned Judicial/Maga Magistrate, Police Station, Hadyara, District Lahore. The learned Illaqa Magistrate sent the same to the worthy Sessions Judge, Lahore for its entrustment to the Court of competent jurisdiction. The learned trial Court after hearing preliminary arguments, summoned all the accused persons to face the trial. On 15.01.2001, the learned Additional Sessions Judge, Lahore formally charge sheeted the appellant along with others to which they pleaded not guilty and claimed trial.
7. The prosecution in order to substantiate its case produced as many as ten (10) prosecution witnesses during the course of trial in private complaint. Ocular account in this case consists of the statements of Abdul Sattar-complainant (PW-1), Muhammad Ishaque (PW-2), Muhammad Ishfaque (PW-3) and Muhammad Sardar (PW-4).
8. Dr. Shahbaz Ahmad appeared as PW-9 and deposed that on 2101.1999 at 2:00 p.m., he (PW-9) conducted the post-mortem examination on the dead body of the deceased, Mushtaq and found following injuries on his person:-- Injuries.
9. 1.A lacerated wound 1.5 x 1 cm present on the upper left of chest, 7 cm from the midline and 1 cm right to the left nipple. There is blackening around the margins.
10. 2.A bruised area 1 x 1 cm present on the upper left chest 5 cm from Injury No. 1.
11. 3.A Bruising 1 x 1 cm from Injury No. 2.
12. 4.A bruised area 1 x 1 cm from midline to the left upper chest.
13. 5.1 x 1 cm lacerated wound at midline 8 cm from right nipple. 10 cm from left nipple.
14. 6.2 x 2 cm bruised area, present on the right side of chest 2 cm from right nipple.
15. 7.4 x 2 cm lacerated wound present on the midline 11 cm from the right nipple.
16. 1 x 1 cm bruised area present on the midline.
17. 8 x 2 cm lacerated wound present on the left hand 21 cm from left elbow involving lunar side of left hand and little finger.
18. After conducting post-mortem examination, the doctor rendered the following opinion:-- Opinion.
19. "All the injuries stated above were ante-mortem and were passed by fire-arm weapons. The cause of death in this case is Injury No. 1, leading to hemorrhagic shock and death. The above stated injury is sufficient enough to cause death under ordinary course of nature.
20. Time between the injuries and death immediately and that between death and post-mortem were about 24 hours."
21. "Ex.PJ is post-mortem report and Ex.PJ/1 & Ex.PJ/2 are pictorial diagrams of the injuries."
9. On 05.03.2011, the learned Assistant District Public Prosecutor gave up Bashir Ahmad, S.1., Muhammad Hayyat/Head Constable and Madad Ali, A.S.I PWs being un-necessary and closed the prosecution evidence on 20.12.2012 after tendering the reports of Forensic Science Laboratory (Ex.PL and Ex.PM), report of Radiologist (Ex.PN) as well as report of Serologist (Ex.PL/1 ). After closing the evidence by the complainant on 20.12.2012, the learned trial Court examined the remaining two witnesses mentioned in the calendar of witnesses of the connected State case as Court witnesses i.e. CW-1 and CW-2. Doctor Muhammad Ryas appeared as CW-2 and deposed that on 20,01.1999 at 6:35 p.m. he (CW-2) medically examined the body of the injured-accused, Iqbal and found following injuries on his person:-- Injuries 1.A lacerated wound 10 cm x 5 cm exposing the bone at left parietal.
22. 2A contused swelling 6 x 4 cm on the left eye.
23. 3.A lacerated wound 0.5 cm x 0.3 cm into skin deep on the back of right hand with clinical fracture of metacarpal bone.
24. 4.A lacerated wound 2 cm x 1 cm into skin deep on interior side of right skin.
25. 5.A lacerated wound 2 cm x 0.5 cm on the interior side of right shin just below the Injury No. 4.
26. 6.A lacerated wound 1 cm x 0.5 cm depth not probe on left shin.
27. 7.A lacerated wound 1 x 0.5 cm into skin deep on lateral side of left thigh.
28. 8.A lacerated wound 1 cm x 1 cm on left buttock.
29. 9.A lacerated wound 1.5 cm x 1.05 cm skin deep on the left ankle.
30. 10.A bruise about 10 cm x 8 cm on left lower ankle with clinical fracture of left fibula.
31. 11.A bruise 8 cm x 6 cm on the dorsal aspect of left fore-arm with clinical fracture of left ulna.
32. After conducting medical examination, the doctor rendered the following opinion:-- Opinion.
33. "Injuries No. 3, 10, 11 were provisionally fall under Section 337-F(v). Unless prove otherwise by X-rays and treatment notes. Rest of the injuries were kept for treatment notes.
34. Probable duration of injuries was within 4 hours. All injuries were caused by blunt weapon.
35. Ex.CW-2/1 is copy of MLR"
36. The statements of rest of prosecution witnesses are formal in nature.
37. 10.After closure of prosecution evidence, the appellant was examined under Section 342 of Cr.P.C, wherein he opted not to appear as his own witness in terms of Section 340(2), Cr.P.C. in disproof of allegations leveled against him in the prosecution evidence and also refused to produce evidence in his defence. While replying to the question' that why this case is against him and why the PWs deposed against him, Muhammad Iqbal (the appellant) made following deposition: "On account of sectarian differences. I way paid by the deceased and his relatives and was subjected to severe beating which caused serious injuries to me. Three bone fractures occurred.
38. Hakim Ali my close relative apprehending danger to my life fired a gun shot in exercise of defence of my person. This is borne out by the FIR version. I have been found innocent in all the investigations conducted by high ranking police officers who have unanimously observed that it was Hakim Ali who fired gun shot in defence of my person. T and my family person are of Deobandi faith whereas the deceased and all other villagers were of Brailvi faith. A day before the occurrence .I had made speech to preach principles of my faith which annoyed the Brailvies and was a dishonour to their faith. I have suffered three bone fractures and eight lacerated wounds on my person. I would have been killed if Hakim (co-accused since dead) had not acted in my defence of my person."
39. 11.Learned trial Court after evaluating the evidence available on record found version of the prosecution proved beyond any shadow of reasonable doubt against the appellant, resulting into his conviction in the afore-stated terms.
40. 12.I have heard the arguments advanced by the learned counsel for the parties and have minutely perused the record available on the file.
41. 13.The occurrence had taken place on 20-01-1999 at 3.45 p.m. in the area of Rampura Khurd situated within the jurisdiction of Police Station, Hadyara District, Lahore which is at a distance of 2 kilometers from the place of occurrence. Whereas. F.I.R. was got registered at 05:00 p.m. on the Fard Bayyan (Ex.DA) of the complainant-Abdul Sattar (PW-1) made on 20-01-1999 at 4.30 p.m., whereas the complainant-Abdul Sattar (PW-1) took forty-five minutes for reporting the incident through Fard Bayyan (Ex.DA), to the police at Harike Morr, Giwandi Road, Lahore, without any explanation. Delay in lodging the First Information Report gives rise to the adverse inference, that the same was utilized for false implication of the accused and concoction of story. Delay in lodging the First Information Report, quite often results in cOnsultation and deliberation, which is creation of after-thought story. This also gets support from the testimony of Dr. Shahbaz Ahmad (PW-9), who conducted post-mortem examination of the dead body of the deceased-Muhammad Mushtaq at 02:00 p.m., on 21-01-1999. He (PW-9) opined that the probable time between death and post- mortem was about 24 hours. There is no plausible explanation as to why post-mortem of the dead body was delayed for twenty-one hours. This aspect of the matter is sufficient to cast doubt about the authenticity of the F.I.R. No doubt delay in postmortem alone is not fatal to the prosecution case but when this Court considered it with the other evidence, available on the record along with post-mortem report (Ex.PJ), they do influence the mind of the Court and leave the impression that there had been some wrangling about the time of registration of criminal case. This creates serious doubt about the genuineness of the prosecution story including presence of the prosecution witnesses including the complainant at the scene of occurrence and the time of death of the deceased-Muhammad Mushtaq. These are circumstances which threw considerable doubt on the evidence of prosecution witnesses. Looking to these facts, this Court is of the opinion that true genesis of the occurrence has been withheld by the prosecution. Therefore, possibility of false implication of the appellant in the alleged crime cannot be ruled out and this Court is of the opinion that the prosecution has failed to bring home the charges framed against the appellant.
14. The prosecution story hinges to a great extent on the testimony of the complainant-Abdul Sattar (PW-1), Muhammad Ishaque (PW-2), Muhammad Ishfaque (PW-3) and Muhammad Sardar Ali (PW-4) i.e. the father, paternal uncle, brother and from baradari respectfully of the deceased- Muhammad Mushtaq. The learned counsel for the appellant contended that the complainant- Abdul Sattar (PW-1), Muhammad Ishaque (PW-2), Muhammad Ishfaque (PW-3). and Muhammad Sardar Ali (PW-4) had made major contradictions and dishonest improvements in the prosecution case and on this count, their testimony should be rejected as same has no substance. Therefore, this Court carefully scrutinized the same. A perusal of the Fard Bayyan (Ex.DA), reveals that Muhammad Iqbal-the accused/appellant raised a lalkara that Muhammad Mushtaq (since dead) would not be let go alive and Hakim Ali (since murdered during trial) made fire shot from his .12 bore gun, which hit on the left side of the chest of Muhammad Mushtaq (since dead). It is significant that the complainant-Abdul Sattar (PW-1) at a later stage on 07-03-2010, filed a private complaint (Ex.PB), after thoughtful deliberations, the case was then developed so as to improve the role of Muhammad Iqbal-the accused/appellant from lalkara to fatal injury, caused to the deceased-Muhammad Mushtaq. The complainant-Abdul Sattar (PW-1) deposed during cross- examination that, I have filed this private complaint after about 2/3 years of the occurrence. It is correct that I have not produced the copy of my that complaint made to police in my statement. Whereas during examination-in-chief, he (PW-1) deposed that the Investigating Officer (PW-10) read over to him (PW-1) contents of his (PW-1) statement and after hearing the same, he (PW1) asked the Investigating Officer (PW-10) that he (PW-1) had got written that fire was made by Iqbal accused to Muhammad. Mushtaqthe deceased but he (Investigating Officer- PW-10) had attributed fire to Hakim Ali (since murdered during trial). Whereupon the Investigating Officer (PW-10) wrote down his (PW-1) supplementary statement on the same day and he (PW-1) put his signatures on the same. However, the complainant-Abdul Sattar (PW-1) deposed during cross- examination that, "I did not get recorded in my private complaint that the police had wrongly recorded in my statement that accused Hakim All fired at deceased whereas Iqbal raised lalkara. At one place in his deposition during cross-examination, the complainant-Abdul Sattar (PW-1) deposed that, "The police after registration of the case handed over to me a copy thereof to me. As the police had a record therefore the police itself mentioned the case number and offences of the previous case of sodomy in my fard beyan. The police handed over to me the copy of FIR on 21.1.1999 whereas occurrence took place on 20.1.1999. My supplementary statement had already been recorded prior to handing over to me the copy of FIR. The police obtained my thumb impression on my supplementary statement." He (PW-1) further deposed that, "I am illiterate person. I made only one statement before the police at the time of registration of the case and I did not make any other statement." It will be cleared at this stage that the complainant (PW-1 ) has completely and totally changed his version in the Court regarding mentioning of detailed description of the earlier F.I.R., reference of which was given in the "Fard Bayyan". If it is so, as deposed by the complainant (PW-1), then this circumstance creates serious doubt regarding making of supplementary statement by the complainant (PW-1). As if police itself mentioned the description of the F.I.R., then police would first saw the F.I.R., recorded in the records of police and then same could be mentioned in the "Fard Bayyan" (Ex.DA). A witness who speaks hot and cold at the same time cannot be accepted as trustworthy and reliable witness. His statement, therefore, cannot be relied upon, in absence of independent piece of evidence to corroborate the evidence of the interested witness in this case. Muhammad Aslam S.I. (Retired) (PW-10) deposed during cross- examination that, "According to the police file available with me case diary No. 28 dated 6.3.1999 Mirza Shakeel Ahmad/SP Cantt. conducted the investigation and observed that there was a sectarian dispute between the parties and Iqbal was being beaten by deceased and his father Abdul Sattar and others when Hakim came forward and made fire shot.--The case diaries recorded by Shaukat Hayat/DSP Range Crime, Mohammad Riaz Chadhar Inspector are available in police file and they observed that the accused facing trial are not involved in the murder of deceased and it was Hakim Ali who fired upon the deceased to save Iqbal who was being treated by him." The complainant-Abdul Sattar (PW-1) further deposed regarding role attributed to Muhammad Iqb"al-the accused/appellant during cross-examination that, "It is incorrect that upon this Hakim Ai accused (since dead) made a fire shot to rescue Iqbal which hit Mushtaq deceased.
42. Volunteer said that Iqbal did not make fire shot rather he had only made a lalkara. I did not get recorded before the _police that accused Hakim had made fire shots which hit to deceased- Saiiad. Confronted with Ex.DA where it is so recorded." (It appears that due to typographic mistake deceased-Sajjad was written instead of deceased-Mushtaq). He (PW-1) also deposed, "I got recorded before the police at the time of registration of case that the accused Iqbal had made fire shot from the distance of one foot (Confronted with Ex.DA wherein it is not so recorded).
43. Muhammad Ishaque (PW-2) also improved his statement. Muhammad Ishaque (PW-2) deposed during cross-examination that, "I got recorded before the Magistrate that the accused Hakim Ali raised the lalkara that Mushtaq deceased should not go alive. Confronted with Ex.DC not so recorded: I got recorded before the police that Mushtaq deceased was caught hold from his hands by Nazeer and Qavyum accused, whereupon Iqbal accused made direct fire shot hitting on his chest, Confronted with Ex.DD, not so recorded strictly though it is recorded that the deceased was caught by them." Muhammad Ishfaque (PW-3) deposed during cross-examination that, "I had not 'stated in my that statement that I saw Iqbal accused making firing outside my house.---I came out of my house on hearing the fire shot I saw the accused persons standing outside my house. I did not see them firing." Muhammad Sardar Ali (PW-4) deposed during examination-in- chief that, "Then Nazir and Qayyum accused caught hold Mushtaq and Iqbal made fire shot towards Mushtaq which hit on his left side of his chest." Whereas, he (PW-4) deposed during cross- examination that, "I heard only one shot which I happened to see. Volunteered to add that I do not know from which side the fire had come, I only know the fire which hit Mushtaq. I was at a distance of 10 yards from Mushtaq when he was hit by the fire. At that time Mushtaq was hit by the fire shot, Mushtaq deceased was held by accused Nazeer from one arm and Qayyum had held him from the second arm. I do not remember that the above fact was recorded before the Court (confronted, not so recorded).--- Qayyum and Nazeer were not hit by the fire shot which hit Mushtaq deceased.---Iqbal accused was not injured in this occurrence. It is not in my knowledge that the I.0 who came to the scene of occurrence had taken Iqbal accused into custody in injured condition and shifted him to Police Station Hadyara. The dead body of Mushtaq was not shifted to.
44. Police Station but the same was transported to the hospital.---I had not learned that Iqbal accused had suffered injuries in this occurrence."The prosecution witnesses i.e. the complainant- Abdul Sattar (PW-1) Muhammad Ishaque (PW-2) and Muhammad Sardar Ali (PW-4) made dishonest improvements in prosecution story to improve the case against Muhammad Iqbal-the accused/appellant. Besides, the complainant-Abdul Sattar (PW-1) and Muhammad Ishaque (PW- 2) have also made dishonest improvements in their statements before the Court. This Court straightway comes to the material improvements/ discrepancies/ contradictions in the prosecution evidence brought on the record by the defence. The complainant-Abdul Sattar (PW-1) deposed during cross-examination that, "I got recorded before the police that the accused Mushtaq had committed sodomy with the accused Hakim Ali and due to that a case was registered against Hakim Ali. I do not know the number and date of that case. That case was registered in the year of 1991 but I do not remember the exact date of the same. I do now remember whether I had got written before the police that the Case No. 24/1993 was registered on 22.4.1993 u/S. 12/7/79 H.0, 342, 294, 377, 511, PPC at P.S. Hadiara, Lahore. Confronted with Ex.DA where it is so recorded. I do not remember whether I had got written the same in my private complaint or not. Confronted with Ex.DA where it is so recorded. The accused Hakim (since dead) Qayyum and Iqbal used to pass on the road situated in front of my house while moving in the village. I do not remember whether I had got written the date of this occurrence in my private complaint. I do not remember the date of occurrence. I do not remember that I had got written in my private complaint the date of occurrence as 20.1.1999. Confronted with Ex.DA where it is so recorded.
45. I myself saw with my eyes that the accused Iqbal, Nazir, Qayyum and Hakim Ali while they were resorting firing on my house. I got recorded the same to the police in my statement. I got recorded my statement before the police that I saw while the accused were firing at my house. Confronted with Ex.DA where it is so recorded. I got recorded in my statement before the police that the accused were resorting aerial firing in front of my house. I got recorded in my statement before the police that I asked my son Ishfaque about the cause of firing on my house. Confronted with Ex.DA where it is not so recorded. I got recorded in my statement that when I asked from my son I Ishfaque that why they were making firing he replied that the accused were asking for my son Muhammad Mushtaq. Confronted with Ex.DA where the name of Ishfaque is not recorded and the words "firing on the house are also not recorded". I got recorded in my statement before the police that when I asked my son Ishfaque about firing on my house he replied me that the accused persons present in the Court were asking for Mushtaq my son and stated that they would teach him a lesson and would murder him. Confronted with Ex.DA where it is not so recorded. I do not remember that whether I had got written in my complaint the above said my version about Ishfaque. Confronted with Ex.DA where it is not so recorded.
46. I tried to rescue my son by asking them to stop. I did not get written in my first statement that I moved forward to rescue my son. (Confronted with Ex.DA wherein it is so recorded).
47. I got recorded before the police at the time of registration of the case that the accused Hakim Ali raised lalkara that as Mushtaq. was his enemy therefore he should not be allowed to go alive and be murdered. (Confronted with Ex.DA wherein it is not so recorded). I got recorded in my statement dated) 18.4.2000 and at the time of registration of the case that the accused Qayyum and Nazir had caught hold the deceased Mushtaq from his arms. (Confronted with Ex.DB wherein the word "arms" is not recorded).
48. I got recorded in my statement dated 18.04.2000 that I tried to rescue my son. (Confronted with.
49. Ex.DB wherein it is not so recorded). I got recorded in my statement dated 18.4.2000 Ex.DA and Ex.DB that the PWs came there and asked me not to weep and got to the police to inform the occurrence.
50. (Confronted with Ex.DA and Ex.DB wherein it is not recorded that the PWs had asked him not to weep and got to police to inform the occurrence). I got recorded in my statement Ex.DA and Ex.DB that I left the PWs, Sardar, Muhammad Din and Muhammad Ishaque remained present beside the dead body to guard it. (Confronted with Ex.DA and Ex.DB wherein it is not so recorded). I did not get recorded in Ex.DA and Ex.DB that I left Riaz and Ramzan beside the dead body. (Confronted with Ex.DA and Ex.DB wherein it is so recorded)."
51. Muhammad Ishaque (PW-2) deposed during cross-examination that:-- "I stated before the Magistrate that my Havelli is situated in between village Ram Pura Kalan and Ram Pura Khurd. Confronted with Ex.DC wherein it is not so recorded. I got recorded before the Magistrate that I heard noise of firing coming from side of village Ram Pura. Confronted with Ex.DC, wherein it is not so recorded. My statement was also recorded before the police. Confronted with Ex.DC, wherein it is not so recorded. I and Sardar came out from the Havelli on hearing noise of firing. When we came out of the Havelli no other person was present there. At that time Mushtaq deceased was coming from village Ram Pura to Ram Pura Bridge. When we came out of the Havelli Mushtaq deceased was a few steps ahead from us. I did not get recorded before the Magistrate that when I came out of the Havelli, I saw that Mushtaq deceased was coming from our front side.
52. Confronted with Ex.DC, wherein it is so recorded. I got recorded before the Magistrate that I and Sardar came out of the Havelli. Confronted with Ex.DC, wherein it is not so recorded. I got recorded before the Magistrate that we followed deceased Mushtaq. Confronted with Ex.DC, wherein it is not so recorded. I also got recorded the same statement before the police. Confronted with Ex.DD, wherein it is not so recorded. This occurrence took place near Pulli near Ram Pura Khurd. This Pulli situates about one acre from my Havelli."
15. The improvements and discrepancies in the evidence of the prosecution witnesses, were material in nature and same is enough proof for disbelieving and discrediting their evidence. In such circumstances, witnesses may not inspire confidence and if their evidence is found to be in conflict and contradictory with other evidence or with the statements already recorded, in such a case, it cannot be held that persecution proved its case beyond reasonable doubt. Respectful reliance in this regard is placed on the judgment of August Supreme Court of Pakistan in the case of "Muhammad Rafique and others v. The State and others" (2010 SCM R 385) wherein it has been held as under: "This Court in the case of Saeed Muhammad Shah v. State 1993 SCM R 550 observed that if a witness improves his statement on material aspects of the case then such improvement is not worthy of reliance and the evidence of such witness requires corroboration. In the case of Khalid Javed v. State 2003 SCM R 1419 while reiterating the above rule, it was further observed that such witness is to be considered to be wholly unreliable and it is not advisable 'to place explicit reliance upon his evidence."
16. Looking to these facts, this Court is of the opinion that true genesis of the occurrence has been withheld by the prosecution, which creates doubt about the genuineness of the version given by the complainant-Abdul Sattar (PW-1) Muhammad Ishaque (PW-2), Muhammad Ishfaque (PW-3) and Muhammad Sardar Ali (PW-4). The presence of the prosecution witnesses is also doubtful at the time of occurrence. Admittedly at the time of occurrence, the complainant-Abdul Sattar (PW-1) was not present in his house. The complainant-Abdul Sattar (PW-1) deposed during cross- examination that,"I myself saw with my eyes that the accused Iqbal, Nazir,Qayyum and Hakim Ali while they were resorting firing on my house. I got recorded the same to the police in my statement. I got recorded my statement' before the police that I saw while the accused were firing at my house. Confronted with Ex.DA where it is so recorded." Whereas, Muhammad Ishfaque (PW- 3) deposed during examination-in-chief that, "Then they went towards Barah Rampura, and after a short while my father came to house. He asked me that who had made fire shots there and I told him that Nazir, Qayyum, Iqbal and Hakim had made fire shots there." During cross-examination Muhammad Ishfaque (PW-3) deposed that, "The four accused had gone away when my father came home. My father never told me that he also saw the four accused firing in front of our house."
53. Muhammad Ishaque (PW-2) deposed during cross-examination that, "I stated before the Magistrate that my Havelli is situated in between village Ram Pura Kalan and Ram Pura Khurd. 4 Confronted with Ex.DC wherein it is not so recorded. I got recorded before the Magistrate that I heard noise of firing coming from side of village Ram Pura. Confronted with Ex.DC, wherein it is not so recorded. My statement was also recorded before the police. Confronted with Ex.DC, wherein it is not so recorded. I and Sardar came out from the Havelli on hearing noise of firing." Whereas, Muhammad Sardar Ali (PW-4) deposed during cross-examination that, "I am resident of village Badhana. The occurrence relates to village Ram Pur Khurd. The distance between village Badhana and village Ram Pur Khurd is 4 Kilometers. I have no house or resident in village Ram Pur Khurd. I had come on that day to meet Ishaque PW for some task.---Abdul Satter PW the complainant of this case is from my Baradari.---I had stated before the police in my statement that I had come to Ishaque to repair a Tauka. I stated this before the police office who recorded my statement.
54. Confronted with Ex-DD, wherein not so recorded.-- I had not stated in the Court in my examination- in-chief that I had come to the Havelli of Ishaque to repair his Tauka.---My visit on that day to the Havelli of Ishaque was by chance, I had not heard any report of fire shot while inside the Havelli, nor I had heard any report of fire shot when I and Ishaque had come out of the Havelli." Thus all the eye-witnesses are chance and interested witnesses, who had animus against the appellant and their presence on the spot has been found doubtful. It is by now well settled law that medical evidence can only indicate that the deceased had lost his life due to certain injuries but it does not lead to the culprits. Reliance is placed on the judgment of the August Supreme Court of Pakistan in the case of "Mursal Kazmi alias Qamar Shah and another v. The State" (2009 SCM R 1410); wherein it was held as under: "Medical evidence had only indicated that the deceased had lost his life due to fire-arm injury, but it did not lead to the culprits--- Accused were acquitted in these circumstances."
55. Reliance is also placed on the case titled "Altaf Hussain and others vs. F'akhar Hussain and others"
56. (PLJ 2008 SC 687). On the other hand, the prosecution has failed to explain the injuries sustained by the appellant in the same occurrence, such injuries being serious one, the prosecution witnesses have withheld the true facts as to the genesis and origin of the occurrence. It would be relevant to mention here that in a murder case, the non-explanation of the injuries sustained by the accused- appellant in the same occurrence is a very important circumstance from which, the Court can draw the following inferences: C ' (1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (2) that ' the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore, their evidence is unreliable (3) that in case there is a defence version which explains the injuries on the person of the accused, it is rendered probable so as to throw doubt on the prosecution case. The complainant-Abdul Sattar (PW-1) during cross-examination has denied the pleas of the accused-appellant, which read as under:-- "It is incorrect that at the same time the police also took the accused Iqbal in injured condition to the Police Station in the same vehicle, The police might have got examined the injured accused Iqbal on the same day when the dead body of my deceased son was taken to Mayo hospital and on the same day accused Iqbal was operated. 7 do not know that who had taken the accused Iqbal in injured condition to Police Station. When my deceased son was taken to Police Station the accused Iqbal was not taken to Police Stdtion in injured condition. I do not know that who was doing care of the injured Iqbal at the spot. I did not get mentioned in my fard beyan that accused Iqbal had also received injuries. I never told the police at any stage of the investigation regarding the injury of accused Iqbal. I also did not mention in my private complaint regarding the injuries of accused Iqbal.---I do not know if accused Iqbal had received injuries or not. It is incorrect to suggest that as the accused Iqbal had received injuries in this occurrence therefore initially I attributed him lalkara and thereafter I changed my version and attributed a fire shot."
57. Muhammad Ishaque (PW-2) during cross-examination has deposed which reads as under: "Iqbal accused did not receive any injury on that day."
58. Muhammad Sardar (PW-4) during cross-examination has deposed which reads as under: "Iqbal accused was not injured in this occurrence. It is not in my knowledge that the I.O. who came to the scene of occurrence had taken Iqbal accused into custody in injured condition and shifted him to Police Station Ha.dyara. The dead body of Mushtaq was not shifted to Police Station but the same was transported to the hospital.---I had not learned that Iqbal accused had suffered injuries in this occurrence."
59. Whereas, Muhammad Aslam, (Retired) S.I. (PW-10)-the Investigating Officer, deposed during cross- examination which reads as under: "I did not arrest the accused Iqbal as he was serious ill and was going to get the medicine/treatment and I thought that safety of life is necessary that than of his arrest.--- The accused Iqbal was in injured condition at that time."
17. Dr. Muhammad Ilyas (CW-2) deposed that on 20-01-1999 he (CW-2) medically examined Iqbal son of Kala Khan brought by Muhammad Akram, Constable at 06:35 p.m. He (CW-2) found 11 injuries on the person of Iqbal son of Kala Khan. He (CW-2) deposed during cross-examination conducted by the complainant counsel that, "The patient was admitted in West Surgical Ward when I examined him. The patient was admitted in West Surgical Ward on 20.1.1999.--It is correct that all the injuries are minor except Injury No. 1, 3, 10 & 11."
11. The prosecution has failed to explain the injuries sustained by the appellant and failed to offer any explanation in this regard, this reveals that the evidence of prosecution witnesses relating to the incident was not true or, at any rate, not wholly true. As far as contention of the learned counsel for the complainant that the appellant admitted in his private complaint that he made fire shot which hit the deceased is concerned, learned counsel for the complainant has failed to refer any piece of evidence from the documentary and oral evidence available on record. However, regarding mode and manner of the occurrence, Muhammad Aslam S.I. (PW-10) the Investigating Officer, deposed during cross-examination that, "According to the police file available with me case Diary No. 28 dated 6.3.1999 Mirz a Shakeel Ahmad/SP Cantt. conducted the investigation and observed that there was a sectarian dispute between the parties and Iqbal was being beaten by deceased and his father Abdul Sattar and others when Hakim came forward and made fire shot.-- -The case diaries recorded by Shaukat Hayat/DSP Range Crime, Mohammad Riaz Chadhar Inspector are available in police file and they observed that the accused facing trial are not involved in the murder of deceased and it was Hakim Ali who fired upon the deceased to save Iqbal who was being treated by him." The deposition of Muhammad Aslam S.I. (PW-10)-the Investigating Officer, gets support from the deposition of the complainant-Abdul Sattar (PW-1); who deposed during cross-examination that, "It is correct that the Investigating Officers Riaz Chadhar and Shaukat S.P declared the accused Nazir Qayyum and Icibal as innocent and not involved in this case whereas they found the accused Hakim Ali involved in this case." However, it is settled principle of law that the prosecution has to stand on its own legs. It was for the prosecution to prove the charge beyond any shadow of doubt. Moreover, the prosecution cannot take any benefit of defence plea when prosecution had brought incriminating evidence against the appellant and failed to prove the same. Reliance is placed on the judgment of the Hon'ble Supreme Court of Pakistan in the case of "Waqar Ahmad vs. Shoukat Ali and others." (2006 S.C.M.R 1139) and "Azhar Iqbal vs. The state" (2013 S.C.M.R. 383).
18. The motive set up by the prosecution in the fard bayyan (Ex.DA), private complaint (Ex.PB) and deposition about it by the complainant-Abdul Sattar (PW-1) have been found by this Court to have remained un-proved. The prosecution case in this regard was vague and can hardly inspire confidence. The complainant-Abdul Sattar (PW-1) admitted that motive part of the occurrence was attributed to the co-accused Hakim Ali (since murdered during trial), in this regard the complainant-Abdul Sattar (PW-1) deposed during cross-examination that: "The accused Iiakim Ali has died. I got recorded before the police that the deceased Mushtaq had committed sodomy with t he accused Hakim Ali and due to that a case was registered against Hakim Ali.---Before the day of occurrence I had no dispute with the accused party and I was also not under any fear of threat of the accused."
60. Muhammad Ishaque (PW-2) during cross-examination has deposed which reads as under: "Since the alleged occurrence of sodomy and registration of criminal case under the said offence 7/8 years ago Hakim Ali complainant of that case and Mushtaq deceased were in cordial relations with each other. During this period accused never assailed upon the deceased Mushtaq. I can not refer to any specific incident to construe grudge of the parties. However they were not in speaking/good terms."
61. Muhammad Sardar (PW-4) during cross-examination has deposed which reads as under: "I got recorded in my statement before the Court that Nazeer etc had lodged and FIR against Mushtaq deceased for sodomy. I was not witness in that case. I had not participant of the investigation of that sodomy case. I had only heard about it. It is not an incident of my direct knowledge, this is only a hearsay and I only heard it. I heard of this sodomy incident some 5 years before the present occurrence."
62. Therefore, the evidence led by the prosecution in connection with motive is not sufficient for placing reliance on the testimony of the witnesses for committing the occurrence. In these circumstances, this Court cannot avoid the conclusion that the motive, as alleged, was an afterthought and has not been proved by any credible evidence.
19. Moreover, it is noticed that Muhammad Aslam (Retired) S.I. (PW-10)-Investigating Officer deposed during examination-in-chief that he (PW-10) collected empties vide recovery memo. Ex- PC. The empties recovered from the spot were sent to Forensic Science Laboratory Punjab, Lahore on 17-02-1999 by Asghar Ali, S.I. (PW-6). Muhammad Aslam (Retired) S.I. (PW-10)-Investigating Officer deposed during examination-in-chief that, "on 17-02-1999 I arrested the accused Muhammad Iqbal, Hakim Ali and Abdul Qayyum." It reveals that crime empties were deposited with the Forensic Science Laboratory Punjab, Lahore after arrest of the accused/appellant. In these circumstances, no reliance can be placed upon the recovery.
63. Thus, positive report of Forensic Science Laboratory Punjab, Lahore, Ex.PM becomes inconsequential.
64. 20.From the facts and circumstances narrated above, this Court is persuaded to hold that the prosecution had not been able to prove its case against the accused beyond shadow of any doubt as there were many dents in the prosecution story. In the present case, the possibility of the occurrence being not witnessed by both prosecution witnesses cannot be ruled out, as such the conviction and sentence recorded by the learned trial Court cannot be sustained. Reliance has been placed on the case reported as "Muhammad Akram v. The State" (2009 SCM R 230) wherein the Hon'ble Supreme Court of Pakistan held that: "Even single circumstance creating reasonable doubts in a prudent mind about the guilt of the accused makes him entitled to the benefit, not as a matter of grace and concession but as a matter of right."
65. 21.I, therefore, accept in toto Criminal Appeal No. 575 of 2014 filed by Muhammad Iqbal-appellant, as a result whereof conviction and sentence awarded by the learned trial Court vide judgment dated 15.03.2014 is set aside and the appellant-Muhammad Iqbal is ordered to be acquitted of the charge in a private complaint, offences under Sections, 302, 34, P.P.C., as well as of the charge in case F.I.R. No. 11 of 1999, dated 20.01.1999, offence under Sections 302, 34, P.P.C., registered at Police Station, Hadyara District, Lahore. The appellant-Muhammad Iqbal son of Kalay Khan, Caste Mayo, resident of Rampura Khurd Police Station, Hadyara District, Lahore is directed to be released forthwith, if not required in any other case.
66. 22.So far as Criminal Revision No. 635 of 2015 seeking enhancement of sentence of Respondent No. 1 is concerned, for the above-stated reasons, the same has no weight, which is accordingly dismissed.
67. 23.So far as Petition for Special Leave to Appeal No. 160 of 2014 seeking conviction under Section 302(b), P.P.C. of Respondent No. 1 and 2 is concerned, this Court has noted that as far as the role of the Respondents No. 1 and 2 i.e. Abdul Qayyum and Nazir Ahmad is concerned, there being no evidence to specifically ascribe any definite role to any of the Respondents No. 1 and 2, hence, it is difficult to hold that any of the Respondents No. 1 and 2 had caused any particular injury on the body of the deceased. The Respondents No. 1 and 2 were attributed the role of caught hold of the deceased-Muhammad Mushtaq from his arms and no specific injury was attributed to any one (the Respondents No. 1 and 2) towards the deceased. For what has been discussed above in the light of prosecution evidence and documentary evidence, the acquittal of Respondents No. 1 and 2 does not suffer from any illegality so as to call for interference by this Court with the impugned judgment. This Court has also taken note of the settled principle of Criminal Jurisprudence that unless it can be shown that the judgment of the lower Court is perverse or that it is completely illegal and no other conclusion can be drawn except the guilt of t he accused or there has been misreading or non-reading of evidence resulting into miscarriage of justice. Even otherwise, when the accused have been acquitted by a Court of competent jurisdiction, double presumption of innocence is attached to their case. The acquittal order cannot be interferred with, whereby an accused earns double presumption of innocence as held in Muhammad Mansha Kausar vs. Muhammad Ashgar and others (2003 SCM R 477). In this case, the prosecution has not been able to bring on record adequate incriminating evidence against Respondents No. 1 and 2 which connects them with the alleged crime. The learned trial Judge has advanced valid and plausible reasons for recording acquittal in favour of Respondent No. 1 and 2. The judgment of acquittal does not call for any interference. Consequently, this Court finds no merit in this petition Bearing No. 160 of 2014, which is hereby dismissed being without merits.