' Muhammad Younis Thaheem, J.--This criminal appeal is directed against the judgment dated 16.9.2013 passed by learned Additional Sessions Judge/Izafi Zila Qazi, Mastooj at Booni, Chitral, whereby the appellants, involved in case FIR No, 67 dated 29.6.2013 under Sections 302/324/337- F(i)/34, PPC registered at Police Station Morrkahoo, were convicted and sentenced as under:-- (i)Under Section 337-F(i)/34, PPC to three (3) months rigorous imprisonment each alongwith payment of Daman of Rs, 10,000/- each payable to the complainant.
(ii)Under Section 316/34, PPC to fifteen (15) years rigorous imprisonment each alongwith Diyat payable to the legal heirs of the deceased in equal shares by the convict-appellants as per list of witnesses of the deceased (Ex PW-9/5). All the sentences shall run concurrently. In case of non- payment of Daman and Diyat, the appellants shall be kept in Jail in order to serve their sentences as simple imprisonment till the subject payment.
(iii)Benefit of Section 382-Cr.P.0 was extended to both the accused/appellants.
2.Facts of the case are that Mir Hakeem, ASI, PW-10 alongwith police personnel were on gusht of the Illaqa, received information regarding the murder at the vicinity of Muchgool Chitral, so, for combination and other legal formalities, -they reached the house of complainant, wherein he found the dead body of deceased lying on a cot in the company of his brother Sajid Wali Shah, the injured-complainant (PW-1), who reported him the matter to the effect that today i,e, on 29.6.2013 at 1700 hours, it was their turn of water and when he opened water to their canal, in the meanwhile, Muhammad Wali Shah son Gauhar Ali Shah and Assadullah son of Muhammad Wali Shah (appellants) came on the spot and altercation about the turn of water took place between the parties. Appellant Muhammad Wali Shah gave blow to the complainant on his back with the handle of spade, whereas on the next blow my brother Sardar Muhammad Khan, present on the spot intervened and caught hold of Wali Muhammad Shah, and upon this Assadullah son of Wali Muhammad Shah gave spade blow on his back and at that time he was empty handed could do nothing and tried to escape from spot, upon this appellants/accused gave simultaneous spade blows to his brother Sardar Muhammad Khan, who fell-down on the spot and accused decamped from the spot. He with the help of co-villagers took his brother for treatment to Booni hospital, but he succumbed to injuries on way at Katoo Randa Muchgool and they returned back to home alongwith de'ad body of his brother and informed the police. The occurrence was witnessed by Shams-ur-Rahman, Fazal Rahman and Matiullah. Motive for the occurrence was stated to be dispute over the turn of water. The report of complainant was reduced into writing in shape of Murasilla Ex. PW1/1, the contents of which were read over to him and after verifying its contents he signed his report as token of its correctness. Mir Hakeem, ASI also prepared injury sheet, inquest report of deceased and Murasilla was sent for registration through constable Mahmood Alam No, 400 and dead body to hospital for post-mortem examination escorted through Khalil-ur-Rahman.
IHC and other police constables, which culminated into FIR ibid, Ex. PW-14/1.
3.After the registration of case, the investigation was conducted by Muhammad Yaqoob, SI/O.I.I of P.S. Morrkahoo, who proceeded to spot, prepared site-plan Ex. PW-6/1, accused were arrested vide arrest card Ex. PW-16/2 and send blood-stained shirt of the deceased for chemical analysis to F.S.L Peshawar vide application Ex. PW-16/3, report received whereof is available on file as Ex. PW16/4.
He has also taken photographs of the deceased and crime venue from different angles, which are available on file as Ex. PW-16/5 to Ex. PW-16/8 and recovery memos. in respect blood stained shirt of the deceased and weapon of offence as spade was recovered from the house of accused during house search already brought on record as Ex. PW7/1 and Ex. PW-6/1, whereas in respect of samples taken from body of the deceased for expert opinion application was moved, which is available on file as Ex.PW-16/9.
4.On completion of investigation, complete challan was submitted against the accused/ appellants to the Court of learned Izafi Zila Qazi, Mastooj at Booni, who after compliance of proceeding under Section 265-C, Cr.P.C., framed the charge against accused, where after, at the commencement of the trial, the prosecution produced as many as sixteen (16) witnesses, whose statements were recorded.
5.On close of the prosecution evidence, accused were examined under Section 342, Cr.P.C., who describing themselves as scapegoats, denied the charges, professed innocence and stated to have falsely been implicated in the case. They, however did not wish to produce defence or to be examined themselves on oath as required under Section 340 (2), Cr.P.C.
6.The learned Trial Judge on conclusion of the trial convicted and sentenced the accused/appellants vide judgment impugned herein.
7.Learned counsel for the accused-appellants argued that the prosecution has miserably failed to bring home the guilt against the convicts by producing trustworthy and convincing evidence. He further contended that there existed grave contradictions between the ocular account furnished by alleged eye-witnesses of the occurrence, medical evidence and the site-plan, so, in the attending circumstances of the case, the view taken by learned trial Court in respect of conviction is the result of non-appreciation and mis-appreciation of evidence on record, as the medico-legal report, Ex. PW-13/1 is silent with regard to exact cause of death of the deceased. He argued that the trial Court has not scrutinized the evidence of prosecution witnesses in accordance with recognized principles of appreciation of evidence available on record, rather based its judgment on conjectures and surmises, therefore, the impugned judgment of conviction is against the law and without any cogent evidence, as such, the same is liable to be set aside and the accused be acquitted of the charges.
8.On the other hand learned A.A.G appearing on behalf of the State and learned counsel for the complainant argued that the occurrence took place in broad day light, so, there was no possibility of identification or false implication being co-villagers. They further argued that the accused/appellants are directly charged by name in the promptly lodged report/FIR, which is supported by statements of injured-complainant PW-1 and other eye-witnesses of the occurrence, medical evidence and recovery of spade from the house of accused, as weapon of offence proved the charge leveled against accused. They argued that the prosecution has proved its case against the convict-appellants beyond any shadow of doubt and further submitted that, though, there are some discrepancies in the evidence of prosecution but those are minor in nature and are not fatal to the prosecution case and supported the conviction and sentence awarded to the accused- appellants by the learned trial Court based on proper appreciation of evidence in accordance with law. 9.We have heard learned counsel of the parties and gone through the record with their valuable assistance.
10.Perusal of file would reveal that the entire case of the prosecution hinges upon the ocular evidence furnished by injured-complainant Sajid Wali Shah and other eye-witnesses of the occurrence. Since the vital role is that of the ocular account rendered by these eye-witnesses, therefore, in our view, we would like to discuss it by making careful re-appraisal first of all to draw conclusion as to whether their presence on the spot' at the time of occurrence have been established by the prosecution, whether their testimony is worthy of credence, believable and whether the occurrence took place in the mode and manner as put-forth by the prosecution.
11The injured-complainant, Sajid Wali Shah, appeared as PW-1, who almost reiterated the same facts as narrated in the F.I.R, however further stated that PWs Shams-ur-Rahman, Fazal Rahman and Matiullah came to the spot, whereas in the F.I.R. it was narrated that these witnesses were present at the spot.
12.Fazal Rahman was examined as PW-2, who stated during examination-in-chief that he alongwith other eye-witnesses i,e, Mativallh, Shams-ur-Rahman and Sajid Wali Shah were sitting near the place of occurrence in the lawn of Mir Alam, when, in the meanwhile heard some noise, so, we reached to the spot and saw the accused/appellants were engaged in quarrel with the Sajid Wali Shah/ complainant over the turn of water, as Sajid Wali Shah wanted to turn water towards his land for irrigation, whereafter, brother of the complainant reached to spot in order to stop the scuffle between the parties, but the accused/appellants simultaneously gave him spade blows, due to which, he got wounded and fell-down on the road. Likewise, other eye-witness Shams-ur- Rahman and Mativallah were examined as PW-3 & PW-4 respectively, they almost narrated the same facts as stated by PW-2.
13.Muhammad Yaqoob Khan, SI, the Investing Officer of the case appeared as PW-16, who has prepared site-plan, Ex. PW-16/1 at the instance of complainant but did not mention the places of above said eye-witnesses i,e, Fazal Rahman, PW-2, Shams-ur-Rahman, PW-3 and Matiullah, PW-4 in the site-plan, however, their names and places were mentioned on the back of site-plan showing presence of Shamsur-Rahman at point 4 and Fazal Rahman at point 5, but same points 4 & 5 had not been shown in site-plan. No explanation whatsoever haseen forwarded in this respect by the Investigating Officer that hy PW-2 & PW-3 were nqt initially mentioned in the site- plan (Ex. W-16/1). So, it could be an improvement made by the prosecution. The rule for safe administration of justice is that improvement made by the prosecution's witnesses in order to strengthen its case, doses its credibility and evidentiary value of their statements and when a witness made contradictory statements or makes improvements changing his version in order to bring in line his testimony with the prosecution story, if found deliberate and dishonest, it would cast serious doubt on his veracity. Reliance is placed on the case Farman Ahmed vs. Muhammad Inayat and other reported in 2007 SCM R 1825. wherein it has been held that improvements once found to be deliberate and dishonest would cast serious doubts on veracity of such witness. In the present case, the Investigating Officer has made deliberate and dishonest improvement in shape of non-mentioning of names of the eye-witnesses in the site-plan; therefore, his testimony loses its credibility and evidentiary value. Even otherwise from such careless act one could get the impression that the occurrence' has not been taken place in the mode and manner as alleged by the prosecution. In this respect, statement of the said witness is also very much important, as he showed total ignorance in his cross-examination with regard to exact places of the accused/appellants, complainant and other eye-witnesses of the occurrence. It is pertinent to mention here that this witness is none else but the very maker of the site-plan (Ex. PW-16/1), which is as stated earlier prepared on the pointation of complainant.
14.In the present case, Dr. Farman Ali, PW-13 has conducted post-mortem of the deceased Muhammad Sardar Khan, who submitted his report, which is placed on file as Ex. PW-13/1, he also handed over specimen of different parts of stomach, blood etc. Ex:PW-13/2 to one Rahmat Azam (PW-11) for forensic analysis but the result of same is not available on judicial file, so, the question arises as to whether these were sent or not or what was the cause of aeath either poison, heart attack or any other cause, however, the relevant portions of the said report is reproduced as under for convenience sake:-- Wounds, bruises, position, size, nature:
1. about one centimeter vertical scratch would involving halt of skin thickness adjacent and above to left eyebrow with dried blood stain from wound to (L) tabial fold; 2.two small scratch wounds noted on right shoulder; 3.three small scratched wounds on left side of chest below left clerical; 4.about 3 x 5 centimeter bruised wound noted interiorly. In opinion of the doctor the cause of death of the deceased could be due to:
1. Vasovagal shock causing death secondary to hit to tests, as small bruised would over the scrotum noted.
2. The cause of death could be due to a blow to the head with apparent injury but concussion of the brain.
3. Hearth attack/Myocardial infraction cannot be ruled out in this particular case.
4. Poisoning could not be excluded, as the samples of blood, urine and stomach contents have been taken for forensic laboratory analysis.
5. Probable time between injury and death: 12 to 20 hours.
15.As per version of the complainant Sajid Wali Shah, PW-1 and other eye-witnesses of the occurrence i,e, Fazal Rahman, PW-2 Shams-ur-Rahman, PW-3 and Matiullah, PW-4, the accused/appellants had given simultaneous spade blows to the deceased, but as per medico- legal report Ex. PW-13/1, there were no multifarious deep wounds on head and the body of the deceased, rather scratched/bruised wounds have been found on it, however, in respect of cause of death of the deceased, the Medical Officer opined that the deceased could have been died due to multifarious reasons i,e, Vasovagal shock causing death and secondly hit to testes, as small bruised wound was noted over the scrotum, the cause of death could be blow to head, however, no visible injury was found on head, but it could be due to concussion of the brain and heart attack or poisoning. So, when the cause of death of the deceased was shrouded in mystery, as to whether the deceased was died due to fatal blows of spade by accused-appellants or the same could be result of his previous ailment. So, keeping in view, the nature of injuries present on the body of the deceased coupled wit I, the uncertainty existed with regard to cause, of death of the decea I did not commensurate the charges leveled in the F.I.R, so the convicts-. appellants, in the attending circumstances of the case, are entitled to be given the benefit of doubt. As it is cardinal principle of jurisprudence, that is, to disbelieve a witness, it is not necessary that there should be numerous infirmities. If there is one single doubt or dent which impeaches the credibility of the witness, that may make the entire prosecution's case doubtful.
16.Another damaging aspect of prosecution's case is that as per statement of alleged eye- witness Mativallh, PW-4, when the deceased Sardar Muhammad Khan had been given simultaneous spade blows by the accused/appellants, he fell-down on the road and blood was flowing from his head and when Mst. Gul Hawa, wife the deceased appeared as PW-5, she also deposed in his statement that her husband was lying on a cot in apathetic condition and blood was oozing from his forehead's side on the edge of left eye. Moreover, PW Matiullah recorded his statement under Section 164, Cr.P.C. as Ex:PW-4/1, wherein, he stated that blood was oozing from his head despite the fact that in medical report Ex: PM no injury has been shown on the head. Similarly, PW-2 Fazal Rahman also recorded his statement under Section 164, Cr.P.C. Ex:PW-2/1 and stated spade blow on the head, but when Muhammad Yactoob, SI, PW-16, Investigating Officer of the present case visited the spot he did not recover any blood stained earth from the spot, so, keeping in view the statements of above-referred PW-s, non-existence of blood at venue of crime casts further doubts on the authenticity of prosecution's case, especially as stated earlier when there existed uncertainty with regard to sending and non-receipt of F.S.L report from Lahore. Besides the above, as rightly pointed-out by the learned trial Court in its judgment, the weapon of offence as spade (Ex. PW-6/1) admittedly has not been sent to the F.S.L for chemical analysis as to whether it was stained with blood matching to deceased or not, in this regard, the prosecution badly failed to bring on record any cogent reason to the effect that why this important and vital piece of evidence was not sent to the F.S.L. which creates a dent in the prosecution case.
17.Furthermore, the occurrence was took place on 29.6.2013 at about 1700 hours, whereas the report has been lodged on the same day at 1930 hours. As per PW-10, Mir Hakim, ASI, when he reached to the house of complainant, the occurrence was reported to him with regard to murder of the deceased at his house while PW-2 Fazal Rahman, PW-3 Shams-ur-Rahman and PW-4 Matiullah did not stated about the fact that they brought back the dead body to home, but the natural instinct of the complainant-party would had been to go to the Police Station concerned for lodging of report, but instead of this, report was made at their home, thus the matter was not reported to the police with utmost promptitude and moreso when no explanation whatsoever has been given in this respect by the complainant, thus, the element of consultation and deliberation could not be ruled-out.
18.The gist of the whole discussion is that the prosecution case is .pregnant with doubts. It is cardinal principle of administration e of 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 judicial mind is sufficient for acquittal of the accused. Wisdom is derived from the case titled "Mohammad Akram vs. the State (2009 SCM R 230). It was observed by the apex Court in the case of Tariq Pervez v. The State 1995 SCM R 1345 that for giving the benefit of doubt it was not necessary that there should be many circumstances creating doubts, single doubt would serve the purpose. Again the golden rule of "the benefit of doubt" has been enunciated in case titled "Mohammad Luqman vs. the State (PLD 1970 SC 10). The entire evidence would reveal that ocular witness PW-1, PW-2, PW-3 and PW-4 are procured and their present on the place of occurrence is not established as such are unnatural and their statements are not confidence inspiring. It has been now settled that conviction must be based on unimpeachable evidence and certainty of proof regarding charges and any doubt arising in the prosecution case must be resolved in favour of the accused. Reliance in this regard is placed on case Muhammad Khan and another vs. The State, 1999 SCM R 1220.
19. For what has been discussed above, we after reappraisal of entire evidence are of the firm view that the prosecution case against the appellants has not been proved beyond any reasonable doubt and the judgment of learned trial Court is based on wrong appreciation of evidence and the law on the subject, therefore, we accept the appeal, set-aside the impugned judgment rendered by the learned trial Court and reluctantly, both the accused/appellants are acquitted of the charges leveled against them. They are in custody and be set free if not required in any other case.
' These are the reason of our short order announced on 04.4.2016.