' FARRUKH GULZAR AWAN, J.---This judgment shall dispose of Criminal Appeal No,763 of 2010 filed by Mukhtiar Hussain appellant against judgment dated 19.6.2010 passed by the learned Additional Sessions Judge, D.G. Khan in case FIR No,319 dated 28.10.2008, under Sections 302/337-F(vi)337- L(2)/34, P.P.C. Registered at Police Station Choti, D.G. Khan whereby he was convicted and sentenced as under:-- ' Under Section 302(b), P.P.C.
' Imprisonment for life and to pay compensation of Rs,200,000/- to the legal heirs of deceased Nazar Hussain under Section 544A, Cr.P.C. And in default thereof to further undergo simple imprisonment for six months.
' Under Section 337-F(vi), P.P.C.
' Rigorous imprisonment for seven years and to pay daman of Rs,20,000/- under Section 337-Y, P.P.C.
' He was held entitled to the benefit of section 382-B, Cr.P.C. And both the sentences to run concurrently.
2. Succinctly, crime report Ex.PA/1 registered on the complaint Ex.PA of Ghulam Shabbir (PW-2) contains the allegation that Ghulam Abbas brother of the complainant had to pay an amount of Rs,60,000/- to Muhammad Salim, his cousin incurred on his return to Pakistan from Dubai. On 27.10.2008 at about 9:15 p.m. The complainant along with his father Maingah Khan and nephew Zafar, was present in their house when Azeem and Rasheed came there and demanded money and asked either to take money or to kill or to be killed by them and started quarrelling with them.
On hearing noise Nazar Hussain brother of the complainant also came there and they detained Rasheed accused in a room in order to rescue from the accused while Azeem went outside menacing anger with dire consequences and called through his mobile-phone. After a short while Fayyaz Hussain armed with hatchet and club and Mukhtiar appellant armed with gun came there on motorcycle. Fayyaz gave hatchet to Azeem asking that they were fully prepared and took out Rasheed by breaking the door of room. Azeem gave straight blow of his hatchet in center of head of Nazar Hussain, who fell down smeared with blood. Mukhtiar gave blow of Kunda of gun .12-bore on the wrist of left hand of Mehnga Khan. Fayyaz gave Sota blow which hit on the back of Mehngah.
Rasheed gave Sota blow which hit on buttock of the complainant. Fayyaz accused gave Sota blow which hit on the shoulder of Mengah Khan. All the accused went on beating the complainant party with kicks and fists. The injured were taken to hospital at Choti and thereafter Nazar Hussain succumbed to the injuries suffered by him.
3. Co-accused Azeem and Fayyaz were acquitted of the charge on the basis of compromise.
Rasheed co-accused was acquitted from the learned trial Court vide separate judgment dated 22.10.2009. The appellant was arrested afterwards to face the trial. After framing of charge, the prosecution produced as many as 8-witnesses to prove its case.
4. Dr. Muhammad Jamal (PW-5) conducted medical examination of Nazar Hussain, (deceased), who was fully unconscious at that time and observed two injuries at left side of parietal region vertically around both side of wound and on the right side of head at perital region, 21/2 inches behind the right side of forehead. Nazar Hussain succumbed to the injuries suffered by him afterwards and on his autopsy, both the said injuries were declared fatal/sufficient to cause his death.
' He also conducted medical examination of Mehnga Khan injured (PW-3) and observed three injuries on his person, one above the wrist joint, second at the left shoulder and third at back side of thorax region. He also conducted medical examination of Ghulam Shabbir complainant/ injured and observed one injury on his person, which was attributed to Rasheed (since acquitted).
5. After closing of prosecution evidence, the appellant was examined under section 342, Cr.P.C. And on question as to why this case was registered and why the PWs have deposed against him, he replied as under:- "I and my cousin Rasheed used to go to the house of co-accused Azeem (acquitted). The houses of Azeem and complainant are adjacent. Complainant did not like our friendship and visit to the house of accused Azeem. On the fateful day Raheed (acquitted) accused went to the house of Azeem for getting his D.V.D. Player back. He called out the name of Azeem while standing outside his house. They gave him beating and locked him inside his house. Due to which a fight took place between Azeem, Rasheed and complainant party. I was involved in this case being relative of Rasheed and as complainant did not like me visiting the house of his cousin. The complainant has entered into compromise with the actual accused Fayaz and Azeem. They have given all their lands and houses to complainant party and even they have left their residence close to the complainant. Complainant is a greedy person and wants to extort money from me as well. All the witnesses are related inter se and have 'deposed falsely upon the asking of the complainant.
' I have been falsely shown by the PWs as well as I.O. To be present at the place of occurrence at the time of occurrence whereas- I was never present there nor I participated in the occurrence. I am innocent."
' The appellant opted not to appear on oath under Section 340(2), Cr.P.C. Nor produced defence evidence.
6. Learned trial court after hearing the arguments of learned counsel for the parties passed the above said conviction and sentence which is being impugned herein.
7. Learned counsel for the appellant has contended that according to crime report Ex.PA/1 the appellant has not been attributed any injury on the person of Nazar Hussain deceased; that the PWs, who are inter-see related witnesses, made improvements in their statements alleging the role of giving butt blow of gun on the head of the deceased and upon the wrist of injured PW; that according to the police proceedings, complaint Ex.PA was got recorded by the complainant in the presence of PWs wherein no role or overt act towards the deceased, has been attributed to the appellant; that the appellant has been alleged to have caused fracture of left wrist of Mehnga Khan injured but the appellant was not armed 'with any weapon at the time of alleged occurrence; that the principal accused Azeem and Fayyaz have been acquitted of the charge on the basis of compromise while Rasheed accused has been acquitted after facing the trial and the complainant has not challenged his acquittal before any forum; that no motive has been attributed to the appellant and the learned trial Court has also disbelieved the same; that there are material contradictions in the statements of the PWs and the prosecution has failed to bring home guilt of the appellant beyond any reasonable shadow of doubt, therefore, his conviction is liable to be set aside.
8. Learned Deputy Prosecutor General assisted by learned counsel for the complainant has contended that the appellant is nominated accused of the promptly lodged FIR with the specific role; that the complainant got recorded his supplementary statement on the same day attributing specific role of giving blow of butt of gun on the head of Nazar Hussain deceased; that sole testimony of injured witness is sufficient for conviction; that the presence of appellant at the time and place of occurrence is admitted one; that the medical evidence corroborates the ocular account furnished by the PWs; that inter-se relationship of the deceased with the PWs is no ground for discarding their testimony especially when the prosecution has otherwise proved its case beyond reasonable doubt; that both the eye-witnesses corroborates each other on all material aspects of the case; that the appellant remained fugitive from law for more than two years and as such non-recovery of gun after such long period is not fatal to the prosecution; that the prosecution has fully proved its case beyond any shadow of doubt and as such the impugned judgment be maintained.
9. I have heard the arguments advanced by the learned counsel for the parties and have perused the record.
10. The eye-witness account in this case was furnished by Ghulam Shabbir complainant (PW-2) and Mehnga Khan injured (PW-3). Ghulam Shabbir PW-2 reiterated the contents of FIR Ex.PA/1 and deposed that Azeem inflicted hatchet blow with sharp side, which hit in the middle of head of his brother Nazar Hussain deceased and that Mukhtiar appellant gave butt blow of gun on the head of Nazar Hussain deceased and thereafter Nazar Hussain deceased fell down. He further deposed that his father came forwarded then Mukhtiar accused inflicted barrel of gun to his father on his wrist, which fractured. During cross-examination he deposed that when he got registered aforementioned criminal case, he was accompanied by his father Mehnga Khan PW-3, Nazar Hussain deceased being unconscious, Zafar his nephew, Ghulam Abbas his brother and Ahmad his brother-in-law (Behnoi) but police proceedings at the bottom of Ex.PA shows that the complainant Ghulam Shabbir (PW-2) was accompanying Mehnga Khan (PW-3), Nazar Hussain unconscious injured (deceased) and Zafar (given up PW). He also deposed that he narrated before the police that Mukhtiar appellant was armed with gun but the same has not been mentioned in his complaint Ex.PA. During cross-examination he deposed that the house of Rasheed accused is situated at a distance of about 2-1/2 k.m. Away from the place of occurrence and that the house of Mukhtiar appellant is also at the same distance.. The other eye-witness namely Mehnga Khan injured (PW-3) deposed in line with the complainant and regarding first phase of the occurrence, he added that it was the occurrence of at about 8:00/30 p.m. But in his statement under Section 161, Cr.P.C. (Ex.DB) he has mentioned the time of occurrence as 9:15 p.m. He has made improvement with regard to the time of occurrence perhaps for the reasons that the house of the appellant is admittedly at a distance of 2-1/2 k.m. And it would not be possible for the appellant and Fayyaz co- accused (since acquitted) to reach the place of occurrence soon after the first phase of the occurrence.
11. This occurrence took place in two phases, firstly at about 8:00/30 p.m. When a scuffle took placed between the complainant party and Azeem and Rasheed (acquitted co-accused) and the second when Azeem became angry and went out while threating them and made a telephonic call. Here the second phase of occurrence starts when after a short while Fayyaz accused armed with hatchet and Sota, Mukhtiar (appellant) armed with gun came into their house and then the aforesaid occurrence took place. During cross-examination Ghulam Shabbir (PW-2) deposed a different story regarding first phase of the occurrence stating that Rasheed and Azeem came to their house and they detained Rasheed in the room of the house and then Azeem left their house and it took 10-minutes. He further deposed that during said 10-minutes Rasheed and Azeem (both acquitted) accused had been beating them with fists, slaps and pushing them but according to Ex.DA i,e, statement of Ghulam Shabbir (PW-2) recorded during trial of co-accused Azeem etc., he deposed that initially Rasheed and Azeem entered into their Haveli, a quarrel took place between Rasheed, Azeem and them, he caught hold Rasheed through "Japha" and after dragging, threw him in the room and locked the room from outside within 6/7 minutes and that Azeem gave Sota blow to them when Rasheed was being dragged by them. He did not mention in his complaint Ex.
PA that during first phase of occurrence Rasheed and Azeem accused, who were two in number while the complainant party was four in number, had been beating them with fists, slaps and pushing them and that Azeem caused Sota blow to them when Rasheed was being dragged by them. At the time of occurrence the complainant party did not inform the police about the first phase of occurrence in any manner and astonishingly kept on waiting for companions of Rasheed to get him released from the room where he was detained by the complainant party. Mehnga Khan injured while appearing as PW-3 deposed in line with Ghulam Shabbir complainatit (PW-2) but during cross-examination it appeared that he made certain improvements with regard to time of occurrence and time consumed till arrival of Fayyaz and Mukhtiar accused at the spot. He also failed to tell the exact date, month as well as year of the occurrence and duration of first phase of the occurrence. It is shrouded in mystery that during first phase of occurrence Sota blow given by Azeem (since acquitted) hit Mehnga Khan injured (PW-3), Nazar Hussain (deceased) or Zafar (given up PW).
12. Dr. Muhammad Jamal (PW-5) conducted medico legal examination of Nazar Hussain injured (deceased). Injury No,1 was attributed to Azeem co-accused, who has been acquitted on the basis of compromise vide judgment dated 22.10.2009 by the learned trial Court. Injury No,2 has been attributed to the present appellant but it could not be proved from the evidence on record beyond reasonable shadow of doubt that the appellant was armed with any weapon at the time of occurrence. The deposition of medical expert is supportive piece of evidence, which is relevant when the same finds support from strong and B un-shattered oral deposition of eye-witnesses, which is missing in this case being suffered from dishonest/material improvements. It could confirm only the receipt of injury, locale of injury, kind of weapon used for causing the injury, duration between the injury and the death but it would not tell the name of assailants. Reliance in this respect is placed on case titled "Tanveer Ahmed v. The State (2013 YLR 1845 [Lahore])".
13. Muhammad Ayub, SI (PW-7) conducted initial investigation in this case, completed formalities and recorded statements of PWs under Section 161 Cr.P.C. The appellant was arrested in this case on 30.1.2010 after about 1-1/2 years of the occurrence and Muhammad Yasin, SI (PW-8) conducted investigation, who got physical remand of the appellant and during investigation found him present at the place of occurrence at the time of occurrence. During cross-examination he admitted that in complaint Ex.PA portion A to A, word Sota is overwritten as Bandooq and in portion B to B the word back is overwritten as shoulder. He further admitted that in his open as well as clandestine investigation, the appellant was found empty handed. Further that complainant as well as any of the PWs did not move any complaint/application regarding the rectification of complaint Ex.PA. The said PW was neither cross-examination by the prosecution being hostile witness nor the complainant challenged his investigation before any forum, therefore, the same goes un-rebutted. The complainant party did not challenge the investigation of said PW nor moved against him under the Police Order, 2002, if his investigation was defective.
14. The stance of the defence is that the second injury on the head of Nazar Hussain deceased was caused by falling on the ground and his head hit with some hard object while injury on the person of Mehnga Khan, PW-3 was caused by stick blow of Azeem accused during first phase of the occurrence. This stance finds support from the document Ex. DA wherein Ghulam Shabbir. (PW-2) deposed that Azeem accused gave them Sota blow when Rasheed was being dragged by them and from the deposition of medical expert deposing that there is possibility that injury No,2 can be caused with the wrong side of hatchet on the head of deceased and can be termed as blunt injury.
Though the defence plea cannot be relied upon to discard the eye-witness account as the appellant opted not to appear in his defence under section 340(2), Cr.P.C. Nor produced any evidence in support of his contention yet the same is very much relevant when finds support from other circumstantial evidence even produced by the prosecution.
15. The motive set out by the prosecution has been attributed to Azeem co-accused, who has been acquitted on the basis of compromise and the appellant has nothing to do with the same.
Improved depositions of both the eye-witnesses were duly confronted during trial with regard to the time of occurrence, time consumed during first phase of the occurrence, role of co-accused Azeem (since acquitted) giving Sota blow during first phase of the occurrence, overwriting in complaint Ex.PA regarding Sota with Bandooq (A to A) and back with shoulder (B to B). The said improvement are very much material and cannot be said being ordinary in nature but very material. It has been well settled by the Apex Courts that when a witness improves version, the improved statement subsequently made cannot be relied upon and its credibility becomes doubtful. I have respectfully drawn guidance in this respect from cases titled "Akhtar Ali and others v. The State (2008 SCM R 6)" and "Farman Ahmed v. Muhammad Inayat and others (2007 SCM R 1825)", which reads as under:-- "It is a settled maxim that when a witness improves his/her version, the improved statement subsequently made, cannot berelied upon and the credibility of such a witness 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 witness."
16. The complainant has also not challenged the acquittal of co-accused Rasheed, who was acquitted on merits on the basis of same set of witnesses by giving him benefit of doubt by the learned trial Court vide judgment dated 22.10.2009 and as such the benefit of principle of rule of consistency should be given to the appellant. It is always duty of the prosecution to stand on its own legs and to prove the case beyond any shadow of doubt and even if slightest doubt arises, benefit of the same must go to the appellant and conviction of the appellant on the same evidence cannot be sustained in the absence of cogent, convincing and confidence inspiring evidence. The prosecution has miserably failed to prove its case against the appellant beyond reasonable doubt. It is cardinal principle of criminal jurisprudence that a single instance causing a reasonable doubt in the mind of the Court entitles the accused to the benefit of doubt and that such benefit must accrue in favour of the accused as a matter of right not of grace. Reliance can be placed on case titled "Tariq Pervaiz v. The State (1995 SCM R 1345)", which reads as under:-- "For giving benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubts. If a simple circumstance creates reasonable doubtful in a prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right."
17. The rule of benefit of doubt which is based on the golden principle of prudence, cannot be ignored while dispensing justice according to law. The said principle is based on the maxim "it is better than ten guilty persons be acquitted rather than one innocent person be convicted".
Reliance can be placed on case titled "Abdul Hussain v. The State (2003 PCr.LJ 1847 [Karachi])".
18. Resultantly, the appeal in hand is allowed, conviction and sentence recorded by the learned trial Court vide impugned judgment dated 19.6.2010 against the appellant is hereby set aside and he is acquitted of the charge. The appellant is present on bail, his bail bonds as well as sureties stand discharged from the liability.