1. Through this appeal under Section 410, Cr.P.C. Zafar lqbal appellant has assailed the judgment dated 29.11.2008 handed down by the learned Additional Sessions Judge, Kamalia through which the appellant was convicted under Section 322, PPC for committing murder of Mukhtar Ali deceased and he alongwith his co-convict Muhammad Ashraf were ordered to pay Diyat in respect of their share from an amount of Rs. 6,75000/- to the legal heirs of the deceased. The appellant was also directed to pay his respective share of Diyat in equal installment within three years subject to furnishing surety bond of the like amount. The appellant has filed the instant appeal against his convictions whereas the impugned judgment to the extent of co-convict namely Muhammad Ashraf has attained finality.
2. Initially the complainant got registered FIR No. 366/05, dated 24.09.2005 at Police Station Pir Mahal, District Toba Tek Singh in respect of an offence under Section 322, PPC against Rana shahid but later on being dissatisfied with the investigation of this case the complainant constrained to institute private complaint. According to the case of prosecution as mentioned in the private complaint the complainant is resident of Chak No. 731/G.B. and is owner of land in Chak No. 679/20 G.B, Tehsil Kamalia which is cultivated by him and his brothers. Rana Shahid also cultivating land adjacent to the land of the complainant party which he has taken on lease. He was in the habit of stealing irrigating water of land of the complainant due to which a quarrel took place between the parties but later on the matter was patched through the intervention of the respectable of the locality. Between the intervening night of 23/24.09.2005 the brother of the complainant namely Mukhtar had to take the turn of water for his land and he was in the habit of using the thorough fare falling on the eastern side of water course of the land which was in possession of Rana Shahid accused. Rana Shahid felt his insult due to quarrel and declarpd him thief, so he spread live-wire of electricity on eastern side of Killa No. 10 of square No. 37. Qutub Din and Amir Javaid went to the Dera of Ali Muhammad for labour and when they were coming back at about 6.00 pm they saw that the accused persons standing near live-wire with a long stick and Rana Shahid accused disturbed the live, wire with stick and there was a great sparking and on that the accused laughed loudly and Rana Shahid remarked that Mukhtar will not return home and will definitely be burnt to death through this live-wire and he will know how to insult the other and level allegations of water theft. It is stated in the private complaint that the complainant registered an FIR wherein he whole story to the SHO but he did not record true version and in connivance with the accused persons instead of recording the occurrence narrated by him recorded occurrence in his own way and thus changed the whole complexion of the occurrence. No written application was moved by the complainant to the SHO but in spite of it, reference was made in the FIR that the complainant had moved a written application to the SHO. The SHO had obtained his signature in connection with the investigation and the SHO used those signatures for chalking out the alleged written complaint and on the strength of that application changed the whole complexion of the occurrence and true facts were not recorded in the FIR. There was a clear and definite intention of the accused to put the live- wire in the way of Mukhtar Ali arid that fact was to be established through the statements of Qutab Din and Amir Javaid PWs put in spite of his best effort the Investigating Officer has not recorded the statements of said PWs. The real and principal culprit was Rana Shahid but the police connived with him and only his two servants were arrested by the police, although the servants were the abettors. The Post-mortem Repot clearly shows that the live-wire was of such a force that it was sufficient to cause the death of Mukhtar Ali deceased. There was an intention to kill Mukhtar Ali so the offence under Sections 302, PPC and 34, PPC were clearly attracted but the police connived with the accused and did not take action in accordance with law. Hence, the complainant instituted the instant private complaint.
3. The prosecution in order to prove its case against the appellant and his co-accused examined two witnesses, i.e. Ghazanfar Ali, complainant (PW-1) and Qutub Din as (PW-2) whereas the learned trial Court has, examined CW-1 to CW-9. To corroborate the story mentioned in the private complaint Ghazanfar Ah complainant (PW-1) appeared before the learned trial Court and his evidence was supported by Qutub Din (PW-2). The medical evidence was furnished in this case by Dr. Jamil Safdar (CW-3), Medical Officer, District Headquarter Hospital, Faisalabad. Muhammad Ismail, ASI/ Investigating Officer (CW-6) has conducted investigation of this case and he has stated about various steps taken by them during the investigation of this case. Rest of the evidence adduced by the prosecution is almost formal in nature.
2. 4.In his statement recorded under Section 342, Cr.P.C. Zafar Iqbal appellant had controverted all the allegations leveled against him by the prosecution and he had also professed his innocence.
3. The appellant neither recorded his statement on oath under Section 340(2), Cr.P.C. in disproof of allegation leveled against him by the prosecution nor has he produced any document in his defence. Even he has not produced any defence witnesses in his support.
4. 5.At the end of the trial, after thrashing the entire evidence and evaluating the arguments advanced by the learned counsel for the parties in support of their respective versions, learned trial Court proceeded to convict the appellant as mentioned in paragraph No. 1 of this judgment.
5. 6.Learned counsel for the appellant contends that the prosecution has failed to prove its case against the appellant beyond any shadow of doubt. On the other hand learned Deputy Prosecutor- General assisted by the learned counsel for the complainant has contended that the prosecution has prove the guilt of the appellant to the hilt.
6. 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.
7. 8.It has been observed by me that allegedly the occurrence in this case took place between intervening night of 23/24.09.2005 at 12:00 night and the same has been reported on 24.09.2005 at 10.45 am. Although the occurrence shown to have been reported with sufficient promptitude yet the facts remained that no time of the Post-mortem Examination in this case was mentioned in respective column nor the doctor (CW3) had given the same during his statement before the learned trial Court which fact shows that the FIR in this case has not been lodged at the time mentioned in the FIR rather the same has been registered by the complainant after due deliberations and consultation. It can easily be inferred that the post-mortem examination in this case has been conducted with inordinate delay. Law is quite settled on the point that if there is inordinate delay in conducting post-mortem examination it is suggestive of the fact that time has been consumed by police to procure eye-witness account to cook-up false and frivolous stories and involved the persons of their own choice. Reliance is placed on the case of Irshad Ahmed v.
8. The State (2011 SCM R 1190) wherein it has been held as under:-- "We have further observed that the post-mortem examination of the deadbody of Shehzad Ahmed deceased had been conducted with a noticeable delay and such delay is generally suggestive of a real possibility that time had been consumed by the police in procuring and planting eye- witnesses and in cooking up a story for the prosecution before preparing police papers necessary for getting a post-mortem examination of the deadbody conducted."
9. 9.Before starting my discussion into the matter it is significant to point out here that initially the FIR was lodged by Ghazafar Ali, complainant (PW1) against Rana Shahid, acquitted co-accused only but during the investigation of this case when the said co-accused was found innocent due to his plea of alibi the complainant opted to institute a private complaint with a delay of four months wherein he has swelled the accused from one (Rana Shahid) to three and also involved the appellant alongwith co-convict Muhammad Ashraf in this case. By instituting the private complaint the complainant (PW1) also improved the story mentioned in the FIR and tried to put burden of murder on the appellant and his co-convict Muhammad Ashraf besides Rana Shahid. This dishonest improvement made by the complainant of course shatter, the intrinsic worth and value of his evidence adduced before the learned trial Court. The dishonest improvements made by the complainant not only forbade this Court to disbelieved his evidence but the same also prohibit this Court to put a worthy credence on the evidence adduced by Qutub Din (PW2). It is settled law that evidence of a witness who made dishonest improvement in order to bring his statement in line with the ocular account lost its credibility. Reliance in this regard can be placed on the cases of Barkat Ali v. Muhammad Asif and others (2007 SCM R 1812) and Amin Ali and another v. The State (2011 SCM R 323).
10. 10.Asghar Ali, SI (CW5) appeared before the learned trial Court and he has categorically stated that Ghazanfer Ali, complainant (PW1) met him near Railway Crossing, Pir Mahal when he was on patrolling duty and he stated about the occurrence which was reduced into writing by him (Ex. DA) and the same was also read over to the complaint at that time who put his signature as token of correctness. The FIR was later on chalked out absolutely in accordance with Ex. DA. Admittedly there was no previousor bitterness between the complainant and CW5 so that the later connived with the accused party. Even Muhammad Ismail, ASI/Investigating Officer (CW6) has no previous grudge with, the complainant to connive with the acquitted co-accused Rana Shahid. Both these witnessed have duly appeared in the witness-box before the learned trial Court and has brought on record the true story. It seems that when above said Rana Shahid has proved his alibi through documentary evidence during investigation of this case the complainant has spread the net wide and by instituting proved his alibi through documentary evidence during investigation of this case the complainant has spread the net wide and by instituting the private complaint had also falsely entangled the appellant and his co-accused Muhammad Ashraf in this case who both were employee of above said Rana Shahid.
11. 11.Admittedly Ghazanfer Ali, complainant (PW1) was himself not an eye-witness of occurrence mentioned in the FIR/private complaint and his evidence is mere hearsay. Even Qutub Din had not himself seen the appellant encircling the live-wire around the field of Rana Shahid. So the culpability of the appellant in this case has been brought on record by the complainant on the basis of surmises and conjectures. According' to the contents of the FIR and also according to the contents of private complaint Rana Shaid was the principal culprit in this case but admittedly on the same set of evidence he has been acquitted by the learned trial Court and no appeal against his acquittal has been filed either by the complainant or by the State so in this eventuality the appellant cannot be termed as accused of committing murder of Mukhtar Ali deceased especially in the circumstance when the appellant has no axe to grind against the deceased prior to occurrence.
12. 12.The medical evidence had been adduced in this case by Dr. Jamil Safdar, Medical Officer, District Headquarter Hospital (CW3) who had conducted post-mortem examination on the deadbody of the deceased. I may observe here that the post-mortem examination report only establish the reason of death, locale and nature of injuries sustained by the deceased during the occurrence, time that elapsed between injuries and death and that of death and postmortem examination and cause of death. It cannot disclose the name of the accused in any manner whatsoever that who has actually perpetrated the offence. Reliance in this regard can be place on the case of Muhammad Sharif and another tr. The State (1997 SCM R 866). Thus, the medical evidence in this case does not support the evidence of Waj Takkar account which has already been disbelieved by me in my discussion in preceding paragraph.
13. 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:-- "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 gailt of accused makes him entitled to its benefit, not as a matter of grace and concession, but as a matter of right."
13. Similar view was affirmed in the cases of Tariq Pervez v. The State (1995 SCM R 1345) and Muhammad Akram v. The State (2009 SCM R 320). It is also golden principle of Islamic jurisprudence that it is better to acquit ten guilty persons than to convict a single innocent person.
14. 14.The upshot of our discussion made above is that the prosecution has failed to prove its case against the appellant beyond any reasonable shadow of doubt. This appeal is, therefore, allowed and the appellant Zafar Iqbal is acquitted of the charge by extending benefit of doubt to him. The surety bond submitted by the appellant equivalent to his respective share of Diyat, if any, is hereby released.