' Shehram Sarwar Ch., J.--Naveed Ahmad (appellant) along with his co-accused namely Saeed Ahmad, Waheed Ahmad and Gulzar Ahmad was tried by the learned Addl. Sessions Judge, Gujranwala in a private complaint instituted under Sections 302, 148 and 149, PPC by Muhammad Bashir, complainant being dissatisfied with the investigation conducted by the police in case FIR No, 219, dated 10.05.2009, offence under Section 302 read with Section 34, PPC registered at Police Station Noshehra Virkan District Gujranwala for the murder of Ghulam Shabbir (deceased) maternal cousin (khalazad) of the complainant. Vide judgment dated 30.11.2011 passed by the learned Addl. Sessions Judge, Gujranwala, Naveed Ahmad (appellant) was convicted under Section 302(b), PPC and sentenced to death, with a further direction to pay Rs, 2,00,000/- (rupeei two lakh only) as compensation under Section 544-A, Cr.P.C.To the legal heirs of the deceased and in default whereof to further undergo simple imprisonment for six months. However, through the same judgment, Saeed Ahmad, Waheed Ahmad and Gulzar Ahmad, co-accused of the appellant were acquitted of the charge by extending them benefit of doubt. Crl. P.S.L.A. No, 14/2012 against their acquittal and Crl. Revision No, 188/2012 for enhanc6nent of compensation amount imposed upon the appellant, filed by the complainant were dismissed as not pressed today vide separate orders. Assailing the above conviction and sentence, Naveed Ahmad (appellant) has filed Crl.
Appeal No, 2165 of 2011 whereas the learned trial Court has sent Murder Reference No, 527 of 2011 for confirmation or otherwise of Naveed Ahmad, appellant's sentence of death, as required under Section 374, Code of Criminal Procedure. Since both these matters have arisen out of the same judgment, therefore, shall be decided together through this single judgment.
2. Prosecution story, as set out in the FIR (Ex.PA) registered on the written application (Ex.PA/1) of Muhammad Bashir, complainant (PW.7) is that Ghulam Shabbir cousin of complainant had leased out his land situated in Mauza Panj Garain, Tehsil Noshehra Virkan to Gulzar Ahmad since long, who was not paying lease money to him for the last two years. About 14/15 days prior to the occurrence, the cousin of complainant came to Gulzar Ahmad and asked him to pay arrears of lease and vacate the land as he showed his inclination towards self cultivation. Gulzar Ahmad promised to pay the lease money after harvesting wheat crop. The complainant and Ch. Maqbool Ahmad along with Ghulam Shabbir went to the house of Gulzar Ahmad situated in Panj Garain in order to take lease amount and possession of land. On demand of amount, Gulzar Ahmad agreed to pay the same. On 09.05.2009 at about 11.00. p.m. Gulzar Ahmad and Ghulam Shabbir after taking meal went to metalled road towards East on the pretext of walk. The complainant and Ch. Maqbool also followed them. When they reached near bridge (pulli), Saeed Ahmad and Waheed Ahmad along with 3/4 unknown persons armed with fire-arms already present there intercepted them. Gulzar Ahmad raised lalkara to teach a lesson for, getting the land vacated. Waheed Ahmad fired with his pistol which landed on the head of Ghulam Shabbir. Second fire shot made by unknown person hit on the neck of Ghulam Shabbir. Remaining accused also fired with their respective weapons and fled away through the fields. It was alleged in the FIR that the occurrence was witnessed by the complainant and his companion in the light of moon and they also identified the accused by their voice.
3. Being dissatisfied with the investigation conducted by the police, Muhammad Bashir, complainant filed a private complaint titled as "Muhammad Bashir vs. Saeed Ahmad etc", wherein he named the unknown accused who fired on the neck of .The deceased as Naveed Ahmad. It was also alleged thit the police prepared two reports under Section 173, Cr.P.C.; in the first report, one of the accused namely Saeed Ahmad was placed in Column No, 2 and rest of the three accused were placed in Column No, 3 whereas in the second report, the names of Gulzar Ahmad, Waheed Ahmad and Muhammad Saeed were placed in Column No, 2 while name of Naveed Ahmad was placed in Column No, 3 of the challan being the actual culprit.
4. After recording of cursory evidence, the appellant and his co-accused were summoned by the learned trial Court to face the trial. Copies of relevant documents were provided to them, as required under Section 265-C, Code of Criminal Procedure and formal charge under Sections 302, 148 and 149, PPC was framed against them on 02.11.2009, to which they pleaded not guilty and claimed trial. In order to prove its case, prosecution examined as many as eight witnesses whereas two others were examined as Court Witnesses. Statements of the appellant and his co-accused were recorded under Section 342, Code of Criminal Procedure on 11.04.2011. Subsequently, again statements of the accused under Section 342, Cr.P.C. Were recorded on 17.06.2011, wherein they refuted all the prosecution allegations levelled against them and professed their innocence. To a question as to why the case against him and why the prosecution witnesses had deposed against him, Naveed Ahmad (appellant) opted the version taken by his father Gulzar Ahmad, co-accused, which is as under:-- "I was not tenant of Shabbir deceased nor I had taken his land on lease (Thaika). Shabbir deceased, his mother Zar Begum, his daughter Shaheen Begum and Mueen Kausar were joint owners of 54 acres of land only, the remaining land was owned by other relatives of Shabbir deceased. They were all having self cultivation of their land and this fact is proved by entries of Khasra Girdawri and Jamabandi of the land in question for the last so many years. I was neither a tenant nor any rent was due from me to the deceased. I had brotherly relations with Shabbir deceased and he has asked me to watch his interests in his absence. He. Used to depute me to complete some of his projects in his absence. In this regard I had got installed three electric tube wells on his land and constructed his "Dera" upon which I had spent lacs of rupees from my own pocket while he promised me for payment and for this purpose he had got registered General Power of Attorney from his mother-in-law regarding 25 acres agricultural land in my favour in village "Panj Graien". I had also got transferred 60 Kanal of land from my brothers Abdul Ghaffar and Abdul Sattar in favour of Shabbir deceased vide mutation (Intiqal) No, 1060 dated 16.6.2006 of village "Panj Graien". All these transactions between me and the deceased were in the knowledge of all the relatives and after the murder of Shabbir deceased in order to deprive me of the huge amount his relatives involved me and my sons falsely in present case in connivance with the police and my enemies in the village. I will produce original power of attorney in my favour by Kalo Bibi mother-in-law of deceased, attested copy of Mutation No, 1060 dated 16.6.2006 and copy of Mutation No, 1073, general power of attorney in my favour by Adalat Khan and Zafar Iqbal relatives of deceased dated 30.2.2009 and general power of attorney in my favour by Chandi Bibi etc dated 30.7.2004. Murder of deceased was blind murder committed by unknown person. The whole sky was covered by dark and thick clouds during the fateful night. The alleged eye-witnesses produced by the prosecution were not present at the spot of the time of occurrence. Coming to know of the occurrence I contacted complainant and other relatives of the deceased on their telephone through my telephone and as a result of these phone calls, the relatives reached village "Panj Graien" later on land after their arrival they conspired with my enemies and the local police and completed the proceedings against me and my sons. After involving me and my sons in this false case the relatives of the deceased hurriedly sold the whole land on a very lower price to an ExMNA who promised his help in their favour. The land sold by relatives of deceased after his death in village Panj Graien also included the land belonging the mother in law of deceased for which she had given me the general power of attorney and the deceased has promised me to transfer the said land in my favour. I and my co-accused who happen to be my sons are totally innocent in his case and have been falsely involved due to above said reasons."
' The appellant did not opt to appear as his own witness in disproof of the prosecution allegations as provided under Section 340(2) Code of Criminal procedure, however, he relied upon the defence evidence produced by Gulzar Ahmad, his co-accused/father. However, after conclusion of the trial, the learned trial Court convicted and sentenced the appellant as detailed above and acquitted his co-accused namely Saeed Ahmad, Waheed Ahmad and Gulzar Ahmad. Hence, this appeal and murder reference.
5. Learned counsel for the appellant, in support of this appeal, contends that the appellant has falsely been implicated in this case; that the case was got registered against three named and 3/4 unknown accused and the appellant is not named in the FIR; that no source of information as' to how the complainant came to know about the name of the appellant has been given in the private- complaint or disclosed before the learned trial Court; that it was admitted by the complainant in his cross-examination that the appellant was known to him for the last 5/6 years but even then, he did not nominate him in the FIR; that Bashir Ahmad, complainant (PW.7) and Maqbool Ahmad (PW.8) have no residence or place of business in the village where the occurrence took place and moreover, they have not explained any plausible reason for their presence at the place of occurrence at the time of incident, therefore, their presence at the spot at relevant time becomes doubtful; that the complainant also made dishonest improvements in order to strengthen the prosecution case; that there is conflict in the ocular account and medical evidence; that the motive has also not been proved by the prosecution; that the alleged recovery of pistol .30 bore (P.5) which was taken into possession vide recovery memo. (Ex.PH) is inconsequential for the reason that the empties were sent to the Forensic Science Laboratory after the arrest of the appellant; that viewing from all angles, the prosecution's case is doubtful in nature and the appellant is entitled to the benefit of doubt not as a matter of grace but as of right.
6. On the other hand, learned Deputy District Public Prosecutor assisted by learned counsel for the complainant opposes this appeal on the grounds that the complainant's side had no enmity against the appellant for his false implication in this case; that the appellant was duly nominated in the private complaint instituted by the complainant wherein the complainant named all the accused with their respective roles; that the complainant and Maqbool Ahmad other witness of ocular account have reasonably explained their presence at the place of occurrence at the time of incident by stating that they went along with Ghulam Shabbir (deceased) to the house of Gulzar Ahmad to receive the lease. Amount; that the motive has also been proved through the statements of Muhammad Bashir, complainant and Maqbool Ahmad; that ocular account is fully supported by medical evidence; that the prosecution case is further corroborated by the recovery of .30 bore pistol (P.5) at the instance of the appellant; that the prosecution has successfully brought home guilt against the appellant beyond any shadow of doubt and there is no merit in this appeal.
7. We have heard arguments of learned counsel for the parties as well as learned Deputy District Public Prosecutor for the State, assisted by learned counsel for the complainant, to their entire satisfaction, given serious consideration to their respective submissions and also perused the record.
8. The salient features of the prosecution case are as under:
(a) Admittedly, the case was registered against Gulzar Ahmad, Saeed Ahmad, Waheed Ahmad and 3/4 unknown accused persons whose names are not mentioned in the FIR. No description/features such as height, complexion, physique and age etc. Of the unknown accused were given in the FIR. Identification parade was also not conducted in this case. The name of the appellant was brought on record by the complainant through private complaint (Ex.PK) but no source of information as to how he (complainant) came to know about the name of the appellant, has been given in the private complaint and the names of remaining unknown accused have not been mentioned therein. It is on record through the statement of complainant (cross-examination) that the appellant was known to him for the last 5/6 years but as to why he (complainant) has not named the appellant in the FIR is not understandable, If the appellant was earlier known to the complainant, his (appellant's) name should have been reflected in the. FIR, which fact makes the presence of appellant at the scene of crime at the time of incident doubtful.
(b) The ocular account was furnished by Muhammad Bashir, complainant (PW.7) and Maqbool Ahmad (PW.8). Both the said eye-witnesses are residents of Rawalpindi and Islamabad, respectively and they have not been able to give any plausible reason for their presence at the place of occurrence at the time of incident. They themselves admitted during cross-examination that they have no residence or place of business at the place of occurrence. Relevant portion of cross-examination of the complainant is reproduced hereunder:-- "... I don't have any property or house in village Panj Graien Gujranwala where the occurrence took place. Similarly Maqbool PW also has no such property in said village. My village Doltala is situated at a distance of 150 kilometers from the place of occurrence. Maqbool PW is resident of I Sector 1-10 Islamabad at a distance of 50 kilometers from my house Related portion of cross-examination of Maqbool Ahmad (PW.8) is also given As under: "The distance between my business place and residence of complainant is 60 to 70 kilometers.
Neither I have any property nor any business at Panj Graien, Gujranwala the place of occurrence. I do not know name and address of any person at Panj Graien except that of Gulzar..."
' From the above situation, the presence of Muhammad Bashir, complainant (PW.7) and Maqbool Ahmad (PW.8) at the scene of occurrence at relevant time becomes doubtful.
(c) It has also been observed that Muhammad Bashir, complainant made dishonest, improvements in order to strengthen the prosecution case. He was duly confronted with his previous statement and the improvements were brought on the record. Following portion of his cross-examination containing improvements is relevant, which is reproduced as under:-- "...I had stated in Exh.PA/1 that Naveed had made second fire. Confronted with Exh.PA/1 wherein not so recorded. The fire of Naveed hit on the right side of neck of Ghulam Shabbir deceased. Total two fires were shot at deceased one on the head and second on the neck. I had not mentioned 3-4 unknown accused in the FIR. Confronted with Exh.PA/1 wherein it is so recorded. I had not mentioned in the FIR that 3-4 unknown accused made firing during the occurrence. Confronted with Exh.PA/1 where it is so recorded. I had not stated in Exh.PA/1 that one fire shot by unknown person hit on the neck of Ghulam Shabbir deceased. Confronted with Exh.PA/1 wherein it is so recorded. I had not stated in Exh.PA/1 that remaining accused fled away towards fields while firing. Confronted with Exh.PA/1 wherein it is so recorded..."
' From the above, it is obvious that these improvements were made by Muhammad Bashir, complainant (PW.7) in order to strengthen the prosecution case. It is well settled by now that when a witness improves his/her statement to strengthen the prosecution case and the moment it is concluded that the improvement was made deliberately and with mala fide intention, the testimony of such witness does not remain. Reliable. While holding so, we are fortified by the dictum of law laid down by the Hon'ble Supreme Court of Pakistan in the cases reported as "Muhammad Rafique and others versus The State and others" (2010 SCM R 385) and "Syed Saeed Muhammad Shah and another versus The State" (1993 SCM R 550). Seeking guidance from the above judgments of the apex Court, we hold that the evidence of Muhammad Bashir, complainant (PW.7) is not of worth reliance.
(d) So far as the motive is concerned, it was alleged by the prosecution that Ghulam Shabbir (deceased) had leased out his land to Gulzar Ahmad since 18/120 years back, who was not paying lease money to the deceased for the last two years. About 14/15 days prior to the occurrence, the deceased asked Gulzar Ahmad to pay arrears of lease amount and vacate the land as he showed his inclination towards self cultivation. Gulzar Ahmad promised to pay the outstanding lease amount and vacate the land after harvesting wheat crop. We have noted that the complainant, who is cousin of the deceased, has not been able to substantiate the motive part of the occurrence as is evident from his cross-examination, which is reproduced hereunder:- "... The Thaika referred by me was not in black & 4 white. The Thaika started from an amount of Rs, 4000/- per acre and reached uptil Rs, 12000/-per acre till the time of occurrence. Whether the change in rate per acre was reduced into writing or not is not in my knowledge. I do not know whether this Thaika was ever incorporated in revenue record or not. We did not produce any revenue record regarding Thaika or rate of it during the course of investigation...."
' From the above version of the complainant, it is clear that he had no knowledge about the lease (thaika) and it was not reduced into writing. Even otherwise, no independent witness was produced by the complainant during the course of investigation or before the learned trial Court. Therefore, the learned trial Court has rightly disbelieved the motive in Para 16 of its judgment.
(e) As far as medical evidence is concerned, the same may confirm the ocular account with regard to 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 the assailants. Reliance is placed on "Ata Muhammad and another versus The State" (1995 SCM R 599):
(f) As far as recovery of .30 bore pistol (P.5) allegedly effected at the instance of the appellant, which was taken into possession vide recovery memo. (Ex.PH) dated 16.06.2009 and positive report of Forensic Science Laboratory (Ex.PM) are concerned, the same are inconsequential because of the reason that the crime empties (P3 & P4) were sent to the Forensic Science Laboratory on 12.06.2009 i,e, after the arrest of the appellant who was taken into custody by the police on 09.03.2010. It is, by now, well established proposition of law that if the crime empty is sent to the Forensic Science Laboratory after the arrest of the accused or together with the crime weapon, the positive report of the said Laboratory loses its evidentiary value. Reliance in this respect is placed on the case of "Jehangir vs. Nazar Farid and another" (2002 SCM R 1986), "Israr Ali vs. The State"
(2007 SCM R 525) and "Ali Sher and others vs. The State" (2008 SCM R 707).
(g) There is another aspect of the case. Co-accused of. The appellant namely Saeed Ahmad, Waheed Ahmad and Gulzar Ahmad were also implicated in this case. They were tried by the learned trial Court along with the appellant but ultimately acquitted of the charge and Crl. P.S.L.A.
No, 14/2012 filed by the complainant against their acquittal has been dismissed as not pressed, vide separate order of even date.
' Because of the above mentioned reasons, the prosecution story is of doubtful nature.
9. We have considered all the pros and cons of this case and have come to this irresistible conclusion that the prosecution could not prove its' case against the appellant beyond any shadow of doubt. It is, by now well established principle of law that it is the prosecution which has to prove its case against the accused by standing on its own legs and it cannot take any benefit from the weaknesses of the case of the defence. In the instant case, the prosecution remained failed to discharge its responsibility of proving the case against the appellant. It is also well established that if there is a single circumstance which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances which have created serious doubt about the prosecution story. In "Muhammad Akram versus The State" (2009 SCM R 230), the Hon'ble Supreme Court of Pakistan, at page 236, was pleased to observe as under: "13. ... It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this 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. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."
10. For the foregoing reasons, Criminal Appeal No, 2165 of 2011 filed by Naveed Ahmad (appellant) is allowed, conviction and sentence awarded to the appellant vide judgment dated 30.11.2011 passed by the learned Addl. Sessions Judge, Gujranwala are set aside and the appellant is acquitted of the charge of murder of Ghulam Shabbir (deceased) while extending him benefit of doubt. Naveed Ahmad, appellant is in jail. He shall be released forthwith if not required to be detained in any other case.
11. Murder Reference No, 527, of 2011 is answered in the NEGATIVE and the sentence of death awarded to Naveed Ahmad (convict) is NOT CONFIRMED.