SADIQ MAHMUD KHURRAM, J.---Azhar Abbas appellant was tried by the learned Addl. Sessions Judge, Dera Ghazi Khan, in case FIR No.56 of 2011 dated 13.6.201 1 registered at Police Station Shahsaddar Din District Dera Ghazi Khan, under Sections 302, 337-A(i), 148 and 149, P.P.C. for committing Qatl-i-Amd of the complainant's son namely Saddam Hussain. The learned trial Court vide judgment dated 14.6.2012 convicted Azhar Abbas appellant and sentenced him as infra: Azhar Abbas son of Ghulam Mustafa.
Death under section 302(b), P.P.C. as Tazir for committing Qatl-i-Amd of Saddam Hussain deceased and a of Rs.1 Lac as compensation under section 544-A , Cr.P.C. and in default thereof, to further undergo six months of simple imprisonment. The convict was ordered to be hanged by his neck till dead: However , the co-accused of the appellan t tried along with him namely Ghulam Mustafa son of Ahmad Yar, Ashiq Hussain son of Ghulam Muhammad and Tanvir Hussain son of Faqeer Bakhsh were acquitted of the charges by the trial court.
2. Feeling aggrieved, Azhar Abbas (convict) lodged Criminal Appeal No. 447 of 2012 against his conviction and sentence. The learned trial court submitt ed Murder Reference No.76 of 2012 under section 374, Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant Azhar Abbas. The complainant of the FIR namely Khuda Bakhsh filed Criminal Appeal No. 515 of 2012 seeking to set-as ide the acquittal recorded of the co-accused of the appellant namely Ashiq Hussain son of Ghulam Muhammad. We intend to dispose of Criminal Appeal No.447 of 2012, Murder Reference No.76 of 2012 and Criminal Appeal No. 515 of 2012 through this single judgment.
3. Precisely the facts necessary , as divulged in the statement of Khuda Bakhsh (PW -5) are as under: "On 13.6.201 1 I was sitting on a cot in front of my shop styled as Karamat Kariana Store situated at link road Qasba Pir Aadil. It was about 9.35 A.M I heard the voice of Saddam Hussain from the northern side. I rushed towards the northern side. I saw that my son Saddam Hussain and Khalil, son of my daughter had been forcibly stopped by Ghulam Mustafa armed with pistol .30 bore, Azhar Abbas armed with Kalashnikov , Ashiq Hussain armed with hatchet, Tanvir accused empty handed and an unknown accused arme d with pistol. Hue and cry of my son Saddam Hussain and son of my daughter Khalil attracted Muhammad Afzal and Munawar lqbal PWs at the spot. We asked the accused why they had encircled Saddam and my Maternal grand son Khalil. They pointed their arms towards us and threatened us not to come near. I requested the accuse d not to do so. Ghulam Mustafa accused asked his son Azhar Abbas to take revenge of hurling abuses to him by Saddam two days before. Azhar Abbas fired two shots with his Kalashnikov which hit my son Saddam on his chin/neck. Saddam Hussain tried to take turn but he again fired which hit on the back of right shoulder . Saddam sustaining injuries fell down. Tanvir Hussain accused clasped Khalil. Ashiq inflicted hatchet blow on the back side of head. Khalil also fell to the ground. Many people were attracted on the spot and accused run away from the spot. When we were bringing both the injured at the clinic of Dr. Akhlaq Ahmad, on the way, Saddam died. We brought the dead body and injured Khalil at the clinic of Akhlaq Ahmad.
There was no motive for the occurrence. Again said that motive was of hurling abuses. Police reached the clinic of Dr. Akhlaq Ahmad. My statement Ex. P. G. was recorded by the police which was read over to me and in token of its correctness I signed the same".
The oral statement of Khuda Bakhsh, (PW.-5), Ex.P.G. was recorded by Abdul Rehman SI (PW.-12) and formal FIR Ex.P.G/1 was recorded by Muhammad Zafar , SI (PW .-7).
4. The learned trial Court framed charge against the appellant and acquitted the co-accused on 11.10.201 1 to which they pleaded not guilty and the learned trial Court proceeded to examine the prosecution witnesses.
5. The prosecution in order to prove its case got recorded statements of as many as 12 witnesses. The ocular account of the case was furnished by Khuda Bakhsh (PW-5) and Khalil Ahmad (PW.-6). Muhammad Subtain Ali Khosa Patwari (PW.-1) prepared the scaled site plan of the place of occurrence Exh. PA. Munir Ahmad 1064/HC (PW.-3) received two parcels from Abdul Rehman SI (PW-12) on 13.6.201 1 and handed over the same to Abuzar Ali 981/C (PW-4). Safdar Abbas 151/C (PW.-8) escorted the dead body of the deceased for post-mortem examination and also was handed over the last worn clothes belonging to the deceased which were taken into possession through memo. Exh. PH. Khadim Hussain (PW.-10) identified the dead body and is also a recovery of witness of the last worn clothes of the deceased which were taken into possession through recovery memo. Exh.
PH. Abdul Rehman SI (PW.-12) investigated the case from the day of occurrence till 21.7.201 1 and Munir Hussain SI (PW .-11) investigated the case from 26.7.201 1 till 16.8.201 1.
6. The prosecution also got examined Doctor Salamat Ullah (PW.-2), who was posted at RHC Shandsaddar Din, as M.O. on 13.6.201 1. On the said date Doctor Salamat Ullah (PW.-2) conducted the postmortem examination of the deceased Saddam Hussain and issued the Post-Mortem Report Exh.PB. He observed as under: A dead body of young deceased, lying on the mortuary table, wearing shalwar Qamiz of light blue surmai colour , stained with blood, eyes were, closed, mouth was semi opened, rigor mortis and postmortem staining was present.
From head to examination I found the following injuries.
INJURIES
1. A sliding lacerated wounds 4 cm x 1 cm present on the lower part of the chin present obliquely .
2. A lacerated wound 1.5 x.1.5.cm present on the back of the shoulder over the lateral to the upper part of lateral angle of right scapula suproposterior to the posterior border of the epix of the right axial (arm pit) going deep. No burning and blackening was present. This was the wound of entry .
3. A lacerated wound 2x2 cm present on the right clavicolar region of the right side of front of the chest going deep.
No burning and blackening was present. Margins were everted. Clavical of the right side was fractured. This was the wound of exit.
OPINION In my opinion all the injuries were ante-mo rtem in nature, caused by fire arm, injure d the right subclavian artery and right upper part of the lung leading to haemorrhage, shock and death, the probab le time between the injuries and death was 20 to 30 minutes and between death and postmortem examination was 4-1/2 to 7 hours.
7. On 9.4.2012 the learned ADPP gave up PWs Fiaz Hussain and Munawar Iqbal being unnecessary . On 7.5.2012 the learned ADPP closed the prosecution evidence after tendering the reports of Chemical Examiner Exh. P.0, Serologist Exh. PP and Forensic Science Laboratory Exh. PQ.
8. After the closure of prosecution evidence, the learned trial court examined the appellant under section 342, Cr.P.C. wherein he claimed that he had been falsely involved in the case. Neither the appellant opted to get himself examined under Section 340(2), Cr .P.C. nor he adduced any evidence in his defence.
9. On the conclusion of the trial, the learned Addl. Sessions Judge, Dera Ghazi Khan convicted and sentenced the appellant as referred to above.
10. The contention of the learned counsel for the appellant precisely is that whole case is fabricated and false. That the prosecution remained. unable to prove the fact in issue and did not produce any unimpeachable, admissible and relevant evidence. He further conte nded that the statements of Khuda Bakhsh (PW.75) and Khalil Ahmad (PW.-6) are contradictory to each other . He also argued that the medical evidence was not supportive of the prosecution case. He also contended that PWs examined by prosecution were related to the deceased and interested. He also argued that the recoveries were result of fake proceedings. He finally submitted that the prosecution has totally failed to prove the case against the accused beyond the shadow of doubt.
11. On the other hand, learned Deputy Prosecutor General along with the learned counsel for the complainant contended that the prosecution has proved its case beyond shadow of doubt by producing independent witnesses.
They further submitted that there was no untoward delay in lodging the FIR. Learned counsels further argued that the deceased died as a result of injuries suffered at the hand of the appellant. They further contended that the medical evidence also corroborated the statements of Khuda Bakhsh (PW.-5) and Khalil Ahmad (PW.-6). They further argued that the recovery of Kalashnikov P4 from the appellant also corroborated the ocular account. They contended that the appellant could not establish any enmity with the prosecution witnesses and there was no occasion for the prosecution witnesses to substitute the real offender with the innocent in this case. Lastly , they prayed for the rejection of appeal.
12. We have heard the learned counsel for the appellant and learned Deputy Prosecutor General along with the learned counsel for the complainant and with their assistance perused the record and evidence recorded during the trial carefully .
13. At the very outset we have observed that Haji Muhammad Afzal (PW.-9) was cited by the complainant of the case Khuda Bakhsh (PW.-5) as an eye-witness of the occurrence while getting recorded his oral statement Exh.
PG to Abdul Rehman SI (PW.-12). Khuda Bakhsh A (PW.-5) while appearing before the Court again deposed that on hue and cry of his son Saddam Hussain (deceased), Haji Muhammad Afzal (PW.-9) came at the spot before the occurrence. In the similar fashion Khalil Ahmad (PW.-6) also mentioned that Haji Muhammad Afzal (PW.-9) came at the spot before the occurrence. The statement of Haji Muhammad Afzal (PW.-9) was recorded by the learned trial court on 9.4.2012 and the said Haji Muhammad Afzal (PW.-9) was administered oath however the trial court instead of recording his statement, record ed the statement of his counsel to the effect that this witness shall only furnish evidence regarding the recoveries effected by the Investigating Officer during the investigation and not regarding the ocular account. Learned counsel for the complainant as well as the learned DPG have tried to justify this error by stating that this method was a recognized practice before the trial courts and had been adopted without any adverse inference being drawn against the same. We, however are unable to reconcile ourselves with this grave error. The trial court is not supposed to record statements of the learned counsel for the complainant as well as learned ADPP after administration of oath to a witness. This Court has formulated instructions to the criminal courts with respect to the holding of trials. The Rules and Orders of the Lahore High Court, Lahore, volume-3 regulate the proceedings in criminal courts. As per Rule-2 Part-E Chapter-1 Volume III it has been directed that a judge in a criminal trial is not merely a disinterested auditor of the contest between the prosecution and the defence, but it is his duty to elucidate points left in obscurity by either side, intentionally or unintentionally , to come to a clear understanding of the actual events that occurred and to remove obscurities as far as possible.
The wide powers given to the court by Article 161 of the Qanun-e-Shahadat Order , 1984 should be judiciously utilized for this purpose when necessary . We have been left with no option but to draw an adverse inference against the whole prosecution case due to the fact that a purported eye-witness of the occurrence, Haji Muhammad Afzal (PW.-9), failed to depose anything regarding the same when he appeared as a witness before the trial court., The scrutiny of the statement of Haji Muhammad Afzal, (PW.-9) results in only one irresistible conclusion being drawn and that is that the other two witnesses namely Khuda Bakhsh (PW.-5) and Khalil Ahmad (PW.-6) deposed falsely . We are constrained to further hold that none of the above mentioned witnesses namely Khuda Bakhsh (PW.-5), Khalil Ahmad (PW.-6) and Haji Muhammad Afzal, (PW.-9) were present at the crime scene at the time of occurrence. The statement of Haji Muhammad Afzal, (PW.-9), as recorded, has put the whole ocular account in obscurity and hits at the very root of the prosecution case.
14. Learned counsel for the complainant as well as learned DPG laid much stress on the fact that Khalil Ahmad (PW.-6) was injured in the occurrence and the stamp of injuries on his person are proof of his being present at the spot. There is no cavil to the argument that if a witness is injured and he proves that he was injured during the occurrence, then he is presumed to be present at the crime scene. However , it is also an accepted principle of law that mere stamp of injuries on the person of a witness is not proof of him being a truthful witness. Reliance is placed on the case of Nazir Ahmad v. Muhammad Iqbal and another (2011 SCMR 527) where at page. 534 the august Supreme Court of Pakistan was pleased to hold as under: "It is settled law that injuries of P. W. are only indication of his presence at the spot but are not affirmative proof of his credibility and truth".
However , in this case Khalil Ahmad (PW.-6) even failed to prove that he D was injured in the same occurrence to which he was deposing to. The learned trial court in para. 23 of its judgment concluded that there was no positive evidence available on the record that Khalil Ahmad (PW.-6) had received the injuries in the present occurrence or otherwise. The learned trial Court also concluded that it is not confirmed from the medical evidence that Khalil Ahmad (PW.-6) was injured in the present occurrence for the reason that Doctor Salamat Ullah (PW-2) while preparing the Medico legal certificate (Exh.PE) had not mentioned the probable duration of injury as suffered by Khalil Ahmad. We ourselves have also perused the Medico legal certificate (Exh.P E) and find that the said column relating to probable duration of injury has been left vacant. Doctor Salamat Ullah (PW.-2) even at the time when he appeared before the learned trial court did not mention the probable time of the injuries on the person of Khalil Ahmad. Furthermore it was alleged that Khalil Ahmad (P W.6) received the said injury as a result of the back side of hatchet hitting his head. However , even after receiving such a forceful blow of a weapon made of metal, Khalil Ahmad (PW.6) only suffered a superficial wound without bone being exposed. Furthermore during the investigation of the case Munir Hussain SI (PW.1) also received evidence to the fact that Khalil Ahmad had not received this injury at the hand of Ashiq Hussain (since acquitted) rather the same was caused by one Faqeer Bakhsh Gazar . All these facts have forced us to conclude that Khalil Ahmad (PW.-6) deposed falsely in respect of the facts of the incident of 13.6.201 1.
15. We have also perused the statement of Khudk Bakhsh (PW.-5) minutely . At the very outset we have observed that this witness made a dishonest improvement to his oral statement Exh. PG while appearing before the learned trial court. Khuda Bakhsh (PW.-5), while recording his examination in chief stated that Azhar Abbas appellant fire two shots with his Kalashnikov which hit his son Saddam Hussain on his chin/neck and when Saddam Hussain deceased tried to take a turn Azhar Abbas appellant again fired which hit on the back of his right shoulder . This improvement with respect to the number of fires made by Azhar Abbas, appellant is not only dishonest but incorrect also. The deceased Saddam Hussain received only two fire shots on his person which were declared as entry wounds whereas the injury No.3 on the front of the chest was declared as a wound of exit. We have also observed that both the witnesses namely Khuda Bakhsh (PW.-5) and Khalil Ahmad (PW.-6) were at variance to each other regarding the time of occurrence. As per the statement of Khuda Bakhsh (PW.-5), the time of occurrence was mentioned as 9.30 p.m. whereas Khalil Ahmad (PW.-6) mentioned the same as 8.30 a.m. This inconsistency regarding the time of occurrence is irreconcilable. We have also observed that as per prosecution evidence Khalil Ahmad PW.-6 had his house at a distance of one kilometer from the house of Saddam Hussain deceased. This Khalil Ahmad (PW.-6) in order to prove his presence at the place of occurrence stated during the cross-examination that he used to live in the house of Saddam Hussain deceased. This version of Khalil Ahmad (PW.-6) was not supported by Khuda Bakhsh (PW.-5). Khuda Bakhsh when cross-examined stated that the house of Khalil Ahmad (PW.-6) was at a distance of 1 kilometer from his house and kept mum regardin g the assertion of Khalil Ahmad (PW.-6) that he was residing with Saddam Hussain deceased. We have also observed that Khuda Bakhsh, (PW.-5) stated that his house was at a distance of 3 acres from the place of occurrence and the shops, where he was present prior to the occurrence, were at a distance of 85 karams (467.5 feet) from the place of occurrence.
Muhammad Sibtain Ali Khosa Patwari, PW.-1 prepared the scaled site plan Exh.P A of the place of occurrence. We have perused the said scaled plan Exh. PA carefully and have observed that there is no specific mention of any shop as owned by Khuda Bakhsh, (PW.-5). The said site plan was prepared on 7.8.201 1 and the omission in the same as mentioned above also speaks volumes regarding the veracity of the statement of Khuda Baldish, (PW .-5).
16. We have also observed that Khuda Bakhsh, (PW.-5) while being cross-examined replied that clothes of the witnesses were stained with blood, and the same were handed over to the police. Abdul Rehman SI (PW.-12), the Investigating Officer of the case on the first day did not take any such blood-sta ined clothes of the witnesses in possession. Abdul Rehman SI (PW.-12), who otherwise showed extraordinary interest in the case did not take the clothes of the eye-witnesses, which were stained with blood, into possession and if these were sent to the Chemical Examiner for, examination and grouping with that of the blood stained clothes of the deceased, the same would have provided the strongest corroboration to the testimony of the two eye-witnesses namely Khuda Bakhsh (PW-5) and Khalil Ahmad (PW.-6). This omission strikes at the roots of the case of the prosecution and lays bare the untruthful and false claim of the said witnesses to have been present at the place of occurrence at the time of occurrence. Both these witnesses were under a duty to provide convincing explanation, appealing to a prudent mind, of their presence at the crime spot otherwise their testimony has to be declared questionable and unacceptable.
17. We have also noticed that as per the two eye-witnesses namely Khuda Bakhsh (PW-5) and Khalil Ahmad (PW.-6), the occurrence took place on a street. Abdul Rehman SI (PW.-12) during cross-examination stated that 11-12 persons joined the investigation of the case and these persons did not State in their statements that the eye- witnesses namely Khuda Bakhsh (PW-5) and Khalil Ahmad (PW.-6) and Haji Muhammad Afzal (PW.-9) were present at the crime scene, at the time of occurrence. It is further an admitted aspect of the case that no one other than the related witnesses were examined during the trial of the case. The purpose of trial is the discovery of truth.
As long as men keep lying the only causality would be the truth. The prosecution case suffers from inherent defects which are irreconcilable as it is. The guidance is sought from the binding decision of the august Supreme Court of Pakistan in case titled Nadeem alias Nanha alias Billa Sher v. The State (2010 SCMR 949) wherein it has been observed as under:- "......further that no independent witness of the locality where the incident took place, a 'Bazar' joined, made case of the prosecution doubtful. It is cardinal principle of Criminal Jurisprudence that any genuine doubt arising out of the circumstances of the case should be extended to the accused as of the right and not as concession. It is difficult to say that prosecution has proved its case beyond shadow of doubt."
18. We have also observed that the report of Punjab Forensic Science Agency Exh. PQ militates against the prosecution evidence. Two empty cartridges of Kalashnikov were sent for compa rison with the Kalashnikov P4, allegedly got recovered by Azhar Abbas appellant. On comparison of the said articles it was found that the two empty cartridges of Kalashnikov were not fired from the Kalashnikov P4. In view of the report of Punjab Forensic Science Agency Exh. PQ we are further convinced in our conclusion that the prosecution miserably failed in establishing the culpability of Azhar Abbas, appellant.
19. We have also observed that regarding motive the prosecution did not produce any independent evidence. A tainted piece of evidence cannot corroborate another tainted piece of evidence. Even otherwise Khuda Bakhsh (PW.-5) while getting his statement recorded before the learned trial court candidly stated as under: "There was no motive for the occurrence. Again said that motive was of hurling abuses"
The statement of Khuda Bakhsh (PW.-5) requires that no further discussion be made regarding the motive. Khuda Bakhsh (PW.-5) neither gave any detail nor mentioned any actors related to the episode of hurling abuses. We are of the considered view that the prosecution miserably failed to prove any motive with the appellant to commit this occurrence.
20. The only other piece of evidence left to be considered by us is the medical evidence but the same is of no help in this case as medical evidence by its nature and character , cannot identify a culprit in case of N an unseen occurrence. As all the other pieces of evidence relied upon by the prosecution in this case have been disbelieved and discarded by us, therefore, the appellant conviction cannot be upheld on the basis of medical evidence alone.
21. Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of Azhar Abbas appellant in the present case. It is settled principle of law that for giving benefit of doubt it is not necessary that there should be so many circumstances rather if only a single circumstance creating reasonable doubt in the mind of a prudent person is available then such benefit is to be extended to an accused not as a matter of concession but as of right. Reliance is place on the binding judgment of the august Supreme Court of Pakistan Muhammad Akram v. The State (2009 SCMR 230) in which it has been observed in paragraph No.13 of page 236 as infra: "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 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstances 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".
22. For what has been discussed above, Criminal, Appeal filed by Azhar Abbas appellant is accepted, the conviction and sentence of the appellant awarded by the learned trial court through the impugned. judgment are hereby set-aside. Azhar Abbas, appellant is ordered to be acquitted. He is directed to be released forthwith if not required in any other case.
23. Pursuant to the discussion made and conclusions arrived at above, the Criminal Appeal No. 515 of 2012 seeking to set-aside the acquittal recorded of the co-accused of the appellant namely Ashiq Hussain son of Ghulam Muhammad is hereby dismissed.
24. Murder Reference is answered in Negative and death sentence of Azhar Abbas appellant is Not Confirmed .