' ABDUL SAMI KHAN, J.---Through this appeal under section 410, Cr.P.C. The appellants have challenged the vires of the judgment dated 10.07.2008 handed down by the learned Additional Sessions Judge, Hafizabad through which the appellants were convicted under section 449 read with section 34, P.P.C. And they were sentenced to undergo rigorous imprisonment for three years each along with fine amount to Rs. 10,000/- each or in default of payment of fine to further undergo simple imprisonment for six months each. They were further convicted under section 302(b), P.P.C.
Read with section 34, P.P.C. And were sentenced to undergo life imprisonment each for Qatli-Amd of Mst. Yasmeen deceased. They were also ordered to pay compensation of Rs.50,000/- each to the heirs of the deceased under section 544-A, Cr.P.C. And in case of default of payment thereof they shall further undergo simple imprisonment for six months. The appellants were further convicted by the learned trial court under section 324, P,P.C. Read with section 34, P.P.C. For causing injury to Mst. Tasneem and they were sentenced to undergo rigorous imprisonment for three years each along with fine of Rs. 110,000/- each or in default of payment of fine to further undergo simple imprisonment for six months each. The appellants were lastly convicted under section 337-A(i), P.P.C. Read with section 34, P.P.C. And they were ordered to pay Daman in the sum of Rs. 5000/- to the injured victim Mst. Tasneem. The benefit of section 382-B, Cr.P.C. Was extended in favour of the appellants and their sentences were ordered to run concurrently. The appellants have filed the instant appeal against their convictions and sentences whereas the complainant has filed Criminal Revision No. 550 of 2008 for enhancement of sentence of the appellants from life to death.
I propose to decide both these matters together through this single judgment.
2. According to the prosecution story unfolded in the FIR the complainant was agriculturist by profession. On preceding night of the occurrence he has an altercation with Muhammad Iqbal on the issue of fodder which was patched up by the people of vicinity. On the fateful day the complainant and his sons namely Ghulam Murtaza, Shafqat Ali and his daughters namely Mst.
Yasmeen and Mst. Tasneem were chatting in the courtyard of their house when all of a sudden Shaukat Ali and Liaquat, both armed with double barren guns, Iqbal, armed with gun, Muhammad Afzal, armed with gun, Muhammad Sarfraz, armed with gun Muhammad Ajmal, armed with rifle 244 bore, Abdul Ghafoor, armed with Sota emerged there and Abdul Ghafoor raised lalkara to teach them lesson for beating Muhammad Iqbal and commit the murder of Muhammad Yaseen and Ghulam Murtaza upon which Muhammad Sarfraz made fire with his gun which landed on left side of forehead of Mst. Tasneem after receiving fire-arm injury fell on the ground. Muhammad Iqbal fired with his gun which hit Mst. Yasmeen on her left flank. Then Shoukat made fire which hit Mst. Yasmeen on right flank. Sarfraz made fire which landed on the chest of Mst. Yasmeen at right side upon which she also fell on the ground after receiving firearms injuries. The complainant and his sons due to fear of life ran towards the room situated towards the South West side of their house and the assailants made indiscriminating firing which hit wall of room and door as well. The occurrence is witnessed by the complainant and his other companions. The accused persons by making firing and after raising lalkaras escaped from the scene of crime. The complainant party attended Mst. Yasmeen and Mst. Tasneem but the former succumbed to her injuries and died at the spot where the latter was removed to Civil Hospital, Hafizabad where the doctor referred her to Lahore. It is stated in the FIR that the assailants done to death Mst. Yasmeen Bibi and inflicted fire- arm injury to Mst. Tasneem on the abetment of Abdul Sattar and Iftikhar son of Abdul Sattar. It is further stated in the FIR that on preceding night at 8.00 p.m. Tasawar Hussain and Abid Ali were passing through street who heard Abdul Sattar and Iftikhar talking to each other that Ghulam Mustafa and Muhammad Yaseen should be murdered so as to give them taste of quarrel with Iqbal. On the application of Muhammad Yaseen complainant FIR No. 319/06, dated 02.10.2006 had been registered at Police Station Kassoke, Hafizabad in respect of offences under sections 302/324/449/109/ 148/149, P.P.C.
3. The prosecution in order to prove its case against the appellant examined as many as twelve witnesses before the learned trial court. The ocular account in this case had been furnished by Muhammad Yaseen, complainant (PW10) and Mst. Tasneem Bibi, injured victim (PW11). The medical evidence had been provided by Dr. Naeem Ahmad (PW8) who medically examined Mst. Tasneem Bibi, Injured victim (PW II) whereas Dr. Tayyaba Kausar (PW9) conducted the Post-mortem Examination on the deadbody of Mst. Yasmin deceased. The investigation in this case was conducted by Zafar Iqbal, Inspector/Investigating officer (PW12) who deposed about various steps taken by him during the investigation of this case. Ghulam Mustafa (PW7) has furnished evidence with regard to recovery of gun (P-3) from Iqbal appellant which has been taken into possession vide recovery memo Ex. PF. Rest of the evidence produced by the prosecution is more or less formal in nature.
4. In their statements recorded under section 342, Cr.P.C. The appellants had controverted the allegations leveled against them by the prosecution and they had also professed their innocence.
They have not opted to make statement on oath under section 340(2), Cr.P.C inasmuch as have not produced any evidence in their defence.
5. Upon completion of the trial the learned trial court found the case against the appellants to have been proved beyond reasonable shadow of doubt and, thus, convicted and sentenced them as mentioned and detailed above whereas after finding the case of the prosecution to be doubtful the learned trial court acquitted co-accused of the appellant namely Liaquat Ali, Iftikhar Ahmad, Muhammad Ajmal and Abdul Sattar of the charge. Hence, the above said appeal and revision petition, before this Court.
6. Learned counsel for the appellant submits that the prosecution has miserably failed to prove the guilt of the appellants to the hilt from the available evidence. On the other hand learned Deputy Prosecution General contends that the prosecution has amply proved the case against the appellant beyond any shadow of reasonable doubt. The learned counsel for the complainant has added that as the case of the prosecution has been proved so the appellants should have been convicted and sentenced for capital punishment of death instead of life imprisonment.
7. I have heard the learned counsel for the parties at length, have given my anxious consideration to their arguments and have also scanned the record with their able assistance.
8. A perusal of FIR shows that the occurrence in this case has taken place on 02.10.2006 at 3.00 pm and FIR has been chalked out at 4.00 p.m. On the same day. It is admitted at all hands that two ladies have received fire-shots injuries out of whom Mst. Yasmeen had died at the spot whereas Mst. Tasneem was injured. Both the ladies were taken to Civil Hospital, Hafizabad.. A perusal of statement of Dr. Naeem Alunad (PW8) shows that he had medically examined Mst. Tasneem at 3.10 p.m. On 02.10.2006 but it is astonishing to note here in the same Hospital the deadbody of Mst.
Yasmin had been kept till 11.00 pm and thereafter her Post-mortem Examination was conducted.
This shows that her Post-mortem Examination was conducted with a delay of eight hours whereas the Doctor (PW9) has categorically stated in her cross-examination that she has received police papers one and half hours before the post-mortem examination which clearly shows that time has been utilized to think over the matter and then the FIR has been chalked out. This fact can also fortify by the statement of the complainant where he while appearing before the learned trial court as PW10 has admitted that Rana Rafaqat Ali, Advocate is his real brother and he has drafted the complaint (Ex.PC). Taking into consideration all these facts this Court comes to a definite conclusion that the FIR was not registered at the time mentioned therein.
9. It has been observed by this Court that to prove the ocular account in this case the prosecution has kept in its fold two eyewitnesses, i.e. Yasin, complainant (PW10) and Mst. Tasneem, injured victim (PW 11). It has particularly been observed by this Court that in the FIR Yasin, complainant (PW10) has attributed lalkara to Abdul Ghafoor whereas while appearing in the witness-box before the learned trial court he has attributed lalkara to Sarfraz co-accused of the appellants. Similarly, in the FIR he has assigned motive to Iqbal appellant on issue of cutting fodder and stated that only an altercation took place between him and Iqbal appellant which was patched up later on but in his statement before the learned trial court he has improved motive part of case while stating that Iqbal and his family members came and fired at his house following altercation but the elders of family patched up the matter. He has also admitted in his cross-examination that at the time of occurrence the accused persons were 15 feet away and the occurrence took place within seconds but the medical evidence suggested otherwise in this regard. Another important fact in this case is that the complainant (PW10) stated that he proceeded to Police Station for lodging FIR whereas the Investigating Officer (PW12) has categorically stated in his statement that he reached at the place of occurrence whereat the complainant, has handed over complaint (Ex. PC) to him for registration of case. He has also not specified the nature of weapon of offence either in the FIR or during his statement before the learned trial court which also put an implied impression into the mind of the Court that he was not present at the scene of crime at relevant time. All this shows that this witness has made glaring improvements in his statement while. Appearing before the learned trial court and in this way he has lost confidence of this Court upon him. The dishonest improvements made by him forbade this Court to believe his evidence in letter and spirit. It is settled law that evidence of a witness who made dishonest improvement and omission in order to bring his statement in line with the circumstances of case lost its credibility. Reliance in this regard can be placed on the cases of Barkat All v. Muhammad Asif and others (2007 SCM R 1812) and Amin All and another v. The State (2011 SCM R 323).
10. So far as the evidence adduced by Mst. Tasneem, injured victim (PW11) is concerned, admittedly she has recorded her statement under section 161, Cr.P.C. Before the investigating officer on 20.10.2006, i.e. After 18 days of the occurrence and the prosecution has failed to advance any reason that why her statement under section 161, Cr.P.C. Has been recorded after eighteen days of the occurrence. The Investigating Officer has admitted in his cross-examination that he has not gone to hospital to record the statement of injured PW11. It is settled law that belated statements recorded under section 161, Cr.P.C. Unless the delay is validly explained by the witnesses or prosecution have got no value in the eyes of law and the same cannot be believed. Reliance in this regard can be placed on the case of Ghulam Qadir and 2 others v. The State (2008 SCM R 1221). The relevant paragraph is reproduced as under:-- "His statement under section 161, Cr.P.C. Was recorded at very belated stage on 4-3-1999. Needless to emphasize that belated examination' of a witness by the police may not be fatal to the prosecution case but where the delay in unexplained, accused has not been named in the FIR and circumstances justify that the open FIR and delay have purposely been manoeuvred to name the accused later, such managed delay and gaps adversely affect the prosecution case. The version of Muhammad Azam would denude his statement of all legal values, Mehmood Ahmad v. The State 1995 SCMR 127".
' Reliance can also be placed on 2010 SCM R 584, 1998 SCM R 570 and 1993 SCM R 550(8).
11. Moreover she has also categorically stated that Baba Ghafoor co-accused of the appellant raised lalkara to kill all the inmates of family members whereas the narration :of the FIR explains otherwise. Her statement is also contrary to the medical evidence because she has categorically stated that the assailants have made firing with j guns whereas' the dimensions of injuries clearly reflect that the deceased has received bullet injuries during occurrence. She has also categorically stated that during occurrence her father and brothers remained present in courtyard whereas the complainant stated that they escaped themselves in a room situated in South-West side of the house due to fear of life. Although she being an injured victim is a star prosecution witness who has seen the occurrence yet law is quite settled on the point that injury on a person of PW does not means that PW is speaking the truth and possibility cannot be ruled out of consideration that injured PW can involve innocent person while taking advantage of injury on his person. It has also been observed that Muhammad Ajmal (acquitted accused) who was shown to be armed with rifle whereas the description of weapon with which the appellant was armed has deliberately been suppressed by the complainant PW10. When all the above narrated peculiar features of this case are considered with the touch stone of the fact that in unsealed site-plan (Ex. PF/1) presence of the appellant has not been shown, it has become crystal clear that the injured victim Mst. Tasneem Bibi (PW11) has not spoken the truth before the learned trial court rather she has been tutored by the complainant, her father to falsely entangle maximum person from the accused party. In the backdrop of such an eventuality the credibility of her statement is not trust worthy to be relied upon by this Court for convicting the appellants in this case.
11. There are certain other factors which renders the case of the prosecution to be doubtful. In this case as many as seven accused persons were involved by the complainant out of which four accused persons have acquitted by the learned trial court on the same set of evidence by disbelieving the same, even the evidence qua the culpability of the appellants is also disbelieved especially in the circumstances when evidence of the complainant (PW10) has already been disbelieved by the learned trial court. This fact also shows that majority of accused involved in this case by the complainant have been acquitted of the charge and this peculiar feature leads this Court to conclude that the complainant has spread the net wide to entangle maximum person from the appellant side which is a common practice in our society. Even otherwise according to the narration of the FIR Shaukat Ali appellant has been attributed a fire-arm injury to Mst. Yasmeen deceased at her right flank, Muhammad Afzal appellant has been attributed fire-arm injury to Mst.
Yasmeen deceased at her right wrist and Muhammad Iqbal appellant has been attributed fire- arm injury to Mst. Yasmeen deceased at her left flank and according to doctor Tayyaba Kausar (PW9) cause of death is injury No. 3 which is not attributed to any of the appellant. The fatal fire- shot is attributed to Sarfraz with whom the complainant party has already effected compromise and exonerated him of the charge, thus, by exonerating him the prosecution has itself refuted the story set forth in the FIR. In the backdrop of above discussion false implication of the appellant in this case cannot be ruled out of consideration.
11(sic). The medical evidence in this case has vital effect because a glaring contradiction has been observed by this Court between ocular account and the medical evidence. The medical evidence has been furnished by Dr. Tayyaba Kausar (PW9) who has categorically opined that Injury No. 3 was fatal in nature and was sufficient to cause death in the ordinary course of nature. The dimension and nature of injury described by the doctor clearly shows that these are bullet injuries, the doctor (PW9) during post-mortem examination also recovered bullets from the injuries of deceased whereas the eyewitnesses have stated during their statements that the deceased received gun-shot injury. Moreover doctor has also seen blackening around the wound whereas both the eye-witnesses categorically stated that fire-shots were made by the culprits at a distance of 10 to 15 feet. Even otherwise medical evidence is only used for confirmation of ocular evidence regarding seat of injury, time of occurrence and weapon of offence used during the occurrence, etc. But medical evidence itself does not constitute any corroboration qua the identity of the accused person for proving his culpability. Reliance in this regard can be place on the case of Muhammad Sharif and another v. The State (1997 SCM R 866). Therefore, the medical evidence in this case does not support the ocular account. Solid that it should start right from the toe of the deceased on one hand and the same should encircle a dense grip around the neck of the accused on the other hand if any doubt which occurred in the prosecution's case sufficient to demolish the whole structure of evidence and the benefit of doubt must go to the accused especially when the same has been built on the basis of feeble or shaky evidence. It is also settled law that not many circumstances creating doubt in the prosecution case are required but only one circumstance creating doubt in the prosecution case is enough to acquit the accused. Reliance can easily be placed upon 2009 SCM R 230 wherein the Hon'ble Supreme Court has held as under:--
12. Admittedly during the investigation of this case nothing has been recovered from Shaukat and Muhammad Afzal appellants to positively connect them with the commission of alleged offence.
Although during the investigation of this case a gun 12 bore alleged to have been recovered from Iqbal yet as stated above Mst. Yasme en deceased received bullet injuries on her bodies. Thus, in absence of any recovery from Shaukat and Muhammad Afzal appellants coupled with the facts discussed above the appellants cannot be saddled with the responsibility of causing murder of the deceased. Similarly, as stated above the complainant while appearing before the learned trial court has improved motive part of this case. Even otherwise motive is not attributed to Shaukat Ali and Afzal appellants. Thus, the motive is also not proved in this case.
13. I may observe here that in a murder case carrying death sentence, the evidence produced by the prosecution against the accused should be so strong and "For giving the benefit of doubt it is not necessary that there should be many circumstances creating doubts--- Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefit, not as a matter of grace and concession, but as a matter of right."
14. For what has been discussion above the prosecution has failed to prove its case against the appellants beyond any reasonable shadow of doubt, so by extending benefit of doubt to the appellants, Criminal Appeal No. 828 of 2008 is allowed and the appellants are acquitted of the charge. The sentences of the appellant has already been suspended by this Court, therefore, their sureties shall stand discharged from their liabilities and bail bonds submitted are hereby cancelled.
15. In sequel to my discussion made above Criminal Revision No. 550 of 2008 for enhancement of sentences of the I appellants is also dismissed.