SADIQ MAHMUD KHURRAM, J.---The appellant namely Karim Dad son of Noor Ahmad was tried along with co- accused namely Khawaja Bakhsh, Javed and Jazik (all since acquitted) by the learned Sessions Judge Rajanpur , in case FIR No, 181 of 2010 dated 01.06.2010 registered at Police Station Dajal, District Rajanpur , in respect of offences under sections 302, 34, P.P.C. for committing the Qatl-i-amd of Ikhtiar Ahmad (deceased). The learned trial court vide judgment dated 10.12.2012 convicted Karim Dad son of Noor Ahmad (convict) and sentenced him as infra: Karim Dad son of Noor Ahmad Imprisonment for life under section 302(b ), P.P.C. as Tazir for committing Qatl-i-amd of Ikhtiar Ahmad (deceased) and directed to pay Rs,2 Lac as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased which was ordered to be recovered as arrears of land revenue and if not recove red the convict was directed to further undergo six months of imprisonment.
The co-accused namely Khawaja Bakhsh, Javed and Jazik were however acquitted by the learned trial court.
2. Feeling aggrieved, Karim Dad son of Noor Ahmad (convict) lodged Criminal Appeal No,856 of 2012 against his conviction and sentence.
3. Precisely the facts necessary , as divulged in the statement of Muhammad Aslam (PW -7) are as under: "About one year and nine months ago, 1 along with my brother Ikhtiar went to Hajipur to purchase grocery articles.
At about 3.00 p.m. after purchasing the grocery when we reached in Choti Bazar Hajipur , accused persons Khawaja Bukhsh and Kareem DM armed with sotas, Javed and Jazik accused were standing there. Then Javed and Jazik accused persons saw us and caught hold me. Khawaja Bukhsh accused present in the court inflicted sota blow to Ikhtiar , which hit on the upper side of his right eye. Kareem Dad accused inflicted sota blow which hit Ikhtiar on his head. On our hue and cry Peer Bux and Muhammad Ishaque P. Ws arrived there. They rescued us from the assailants. Motive behind the occurrence was that one day prior to this occurrence Ikhtiar deceased was quarreled with Khawaja Bukhsh etc, and due to that grudge, the above said accused persons severely injured Ikhtiar . I escorted Ikhtiar injured to the police station for report and on the way police met us. I recorded my statement Ex.PB to the 1.0., who correctly recorded the same and I thumb marked it in token of its correctness.
Thanedar prepared injury statement of Ikhtiar Ex-PD and sent him to RHC, Dajal for his examination and treatment.
Where the medical officer conducted examination of the injured and due to his precarious condition, he was referred to THQ Hospital, Jampur . We went to THQ Hospital. Jampur but the medical officer of that hospital due to the serious condition of Ikhtiar injured, referred him to Nishtar Hospital. Multan. We brought Ikhtiar injured to Nishtar Hospital, Multan. He remained admitted there for six days and thereafter he succumbed to the above said injuries in Nishtar Hospital, Multan". The oral statement of Muhammad Aslam (PW-7) was reduced into writing by Sabir Hussain, ASI (PW-3) who sent the said statement (Exh.PB) to the police station where Irshad Ahmad, SI (PW -9) registered formal FIR (Exh.PB/2).
4. After the formal investigation of the case report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court wherein the appellant was sent to face trial.. The learned trial court framed the charge against the accused on 27.05.201 1. The appellant pleaded not guilty and claimed trial and the learned- trial Court proceeded to examine the prosecution witnesses.
5. The prosecution/complainant in order to prove its case got recorded statements of eleven witnesses.
Muhammad Aslam (PW-7) and Muhammad Ishaque (PW-8) gave evidence regarding the ocular account. Mujahid Hussain (PW-1) identified the dead body of Ikhtiar , Ahmad (deceased) at the time of postmortem examination and also witnessed the last worn clothes of the deceased being taken into possession through recovery memo (Exh.P A). Ijaz Ahmad 300/HC (PW-2) stated that on 01.06.2010, Aman Ullah, SI (PW-11) handed over to him a sealed parcel said to contain blood stained earth which he on 21.06.2010 handed over to Burhan Rasheed (PW-4).
Muhammad Iftikhar , Patwari prepared the scaled site plan of the place of the occurrence (Exh.PH), Irshad Ahmad, SI recorded the formal FIR (Exh.PB/2). Sabir Hussain, ASI (PW-3) investigated the case on 27.05.2010 and detailed the facts of the same in his statement before the learned trial court. Muhammad Afzal, SI (PW-10) investigated the case from 10. 07.2010 till 14.09.2010 and detailed the facts of the same in his statement before the learned trial court. Aman Ullah, SI, (PW-11) investigated the case from 01.06.2010 till 08.10.2010 and detailed the facts of the same in his statement before the learned trial court.
6. The prosecution also got examined Dr. Muhammad Rashid, (PW-5) who was posted as Medical Officer at RHC, Dajal and on 27.05.2010 at about 5.15 p.m. examined Ikhtiar Ahmad son of Wajdad Khan (then injured later deceased). Mr. Dr. Muhammad Rashid, (PW 5) while examining Ikhtiar Ahmad son of Wajdad Khan (then injured later deceased) observed as under: "Injury No,1 A lacerated wound of 2-1/2 cm x 1/2 cm x skin deep situated on right side of vertex , 6 cm about from right eye. 10 cm from right ear. Oedematous right eye with ecchymosed, x-ray skull A.P. lateral advised. Patient referred to THQ Hospital, Jampur for further management and x-ray result. injury No,1 was K.U.O. Kind of weapon (blunt weapon Probable duration of injuries were two to three hours.......
Exh. PE is the correct carbon copy of MLC"
Dr. Muhammad Rashid, (PW 5) also conducted the postmortem examination on the dead body of Ikhtiar Ahmad son of Wajdad Khan on 01.06.2010. Dr. Muhammad Rashid, (PW 5) while examining the dead body of Ikhtiar Ahmad son of W ajdad Khan (deceased) observed as under: "OPINION: In my opinion injury No,1 described in the MLC Exh.PE proved fatal, it was sufficient to cause death in ordinary course of nature.
Probable duration between injury and death 06 days and between death and post mortem 6-7 hours."
Dr. Muhammad Rashid, (PW 5) also prepared the post mortem examination report (Exh.PF).
7. On 10.09.201 1, the learned DDPP gave up witness namely Faiz Ullah being unnecessary . The learned ADPP closed the prosecution evidence on 04.10.2012 after tendering the report of Serologist (Exh.PN) and the report of Chemical Examiner (Exh.PM) in evidence.
8. After the closure of prosecution evidence, the learned trial court examined Karim Dad (appellant) under section 342, Cr.P.C. and in answer to question why this case against you and why the PWs have deposed against you, he gave the following reply .
"The complainant party was inimical towards us on account of a theft case. The deceased was not a person of good character . He had many enemies. Some of his enemy injured him, who was not identified at the spot that is why no one from the Bazaar supported the prosecution version. The complainant was subsequently summoned from his house and the case was registe red after preliminary investigation. The P. Ws. are interested and inimical to me. They had falsely involved me due to enmity ."
Neither the appellant opted to get himself examined under section 340(2), Cr.P.C. nor adduced any evidence in his defence.
9. On the conclusion of the trial, the learned Sessions Judge, Rajanpur convicted and sentenced the appellant as referred to above.
10. The contention of the learned counsel for the appellants precisely is that whole case is fictitious and untruthful.
That the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence. He further contended that the statements of Muhammad Aslam (PW-7) and Muhammad Ishaque (PW-8) are not worthy of reliance as being highly inimical witnesses. He also argued that the medical evidence was not supportive of the prosecution case. 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 District Public Prosecutor 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 counsel further argued that two deceased died as a result of injuries suffered at the hands of the appellant. They further contended that the medical evide nce also corroborated the statements of Muhammad Aslam (PW-7) and Muhammad Ishaque (PW-8). They further argued that the recovery of Sota (Exh.P-4) from the appellant also corroborated the ocular account. They contended that the appellant had enmity with the deceased and there was no occasion for the prosecution witnesse s, who were related to the deceased, to substitute the real offenders with the innocent in this case. Lastly , they prayed for the rejection of appeal.
12. I have heard the learned counsel for the appellants and learned Deputy Prosecutor General and with their assistance perused the record and evidence recorded during the trial carefully .
13. The whole prosecution case revolve s around the statements of Muhammad Aslam (PW-7) and Muhammad Ishaque (PW-8). However the said Muhammad Ishaque (P W-8) had not seen the occurrence himself rather stated that Muhammad Aslam (PW-7) told him so. These witnesses namely Muhammad Aslam (PW-7) and Muhammad Ishaque (PW-8) were related inter se. Their relationship with the deceased is also on record. During the cross- examination Muhammad Aslam (PW-7) stated that Ikhtiar Ahmed (deceased) was his brother while Muhammad Ishaque (PW-8) was his first cousin whereas Peer Bukhsh (given up PW) was maternal cousin of Muhammad Aslam (PW-7). A chance witness, in legal sense, is the one who claims to be present at the place of occurrence at the time of occurrence though his presence there was a sheer chance as in ordinary course of business. I have carefully scrutinized the statements of Muhammad Aslam (PW-7) and Muhammad Ishaque (PW-8), the alleged eye-witnesses of the case. Both the witnesses are not only related to each other but also to Peer Bukhsh (given up PW) and the deceased Ikhtiar Ahmad (deceased). They , by their own admiss ion, were "chance witnesses".
Muhammad Aslam (PW-7) admitted during cross-examination that he and the witnesses were residents of 13/14 kilometers away from the place of occurrence. Muhammad Aslam (PW-7) stated that on the day of occurrence he was returning after purchasing grocery . During the inspection of the place of occurrence by the Investigating Officer Sabir Hussain ASI (PW-3), no physical proof of such purchase of grocery was found at the place of occurrence.
During investigation of the case Muhammad Aslam (PW-7) neither produced any shopkeeper nor any articles which he had allegedly purchased on the day of occurrence so as to substantiate his claim of being present at the place of occurrence at the time of occurrence, Furthermore, I have perused the Medico Legal Examination Certificate (Exh.PE) regarding the then injured Ikhtiar Ahmad (deceased). In the column relating to the name of relative or friend who had brought the injured to the hospital it has been recorded that the injured was brought to the hospital by police. The names of eithe r Muhammad Aslam (PW-7) or Muhammad Ishaq or Peer Bakhsh (given up PW) do not find mention in the said Medico Legal Examination Certificate (Exh.PE). Had the witnesses namely Muhammad Aslam (PW-7) or Muhammad Ishaq or Peer Bakhsh (given up PW) been present, then their names would have A found mention in the above mentioned document. It is trite that men may lie but documents do not.
Hence, the statement made by the said eye-witnesses has failed to receive any independent corroboration or support. These witnesses have failed to prove their presence at the spot at the time of occurrence. In this respect reliance is placed on the case of Muhammad Rafiq v. State (2014 SCMR 1698 ), wherein the august Supreme Court of Pakistan rejected the claim of witnesses who lived one kilometer away from the occurrence, but on the day of occurrence stated to be present near the spot as they working at labourers; inasmuch as they failed to give any detail of the projects they were working on Reliance is also placed on the case of Nasrullah alias Nasro v. The State ( 2017 SCMR 724 ) wherein the august Supreme Court of Pakistan observed as under:- "In the case in hand the eye-witnesses produced by the prosecution lived eighty kilometers away from the scene of the crime, their stated reason for presence in the house of occurrence at the time of incident in issue had never been established through any independent evidence."
14. It is further an admitted aspect of the case that no one, other than the related witnesses, was examined during the investigation or the trial of the case as a witness. Muhammad Aslam (PW-7) during cross examination admitted that there were shops at the place of occurrence and the said occurrence had taken place in front of the shop of Shahid Barber . Said Shahid Barber did not appear as a witness during the trial of the case. Muhammad Aslam (PW-7) further admitted during cross-examination that there was "hustle and bustle" in the bazar . Not only no shopkeeper of bazar was cited as a witness in this case but none of the persons of locality who were passing through the bazar and had allegedly seen the occurrence, appeared during the investigation of the case or during the trial as witnesses. Furthermore it is not on record at all as to how the accused came to know about the travelling plans of the complainant party so as to be present at the place of occurrence at the exact moment when the deceased was there by chance and not by design. The Investigating Officer was under a binding duty to collect all the evidence available and his failure to do so has to be taken as a circumstance belying the prosecution case.
The purpose of trial is the discovery of truth. As long as men keep lying the only causality would be the reality . The prosecution case suffers from inherent defects which are irreconcilable as it is. The guidance is sought from the binding decisions 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."
15. I have already mentioned that along with the appellant his co-accused namely Khawaja Bakhsh, Javed and Jazik (since acquitted) were tried. The learned trial court acquitted the above mentioned co-accused of the charge.
I have queried the learned Deputy District Public Prosecutor as well as the learned counsel appearing on behalf of the complainant namely Muhammad Aslam (PW-7) regarding the filing or otherwis e of an appeal against acquittal of the said co-accused, who have stated that the acquittal of Khawaja Bakhsh, Javed and Jazik co-accused (since acquitted) had attained finality as neither the State nor the complainant or any other aggrieved person had filed any appeal against the acquittal of Khawaja Bakhsh, Javed and Jazik co-accused (since acquitted). The question for determination before this Court now is that whether the evidence which has been disbelieved qua the acquitted co- accused of the appellant, can be believed against the appellant. The proposition of law in Criminal Administration of Justice, that a common set of witnesses can be used for recording acquittal and conviction against the accused persons who were charged for the commission of same offence, is now a settle d proposition. The condition for relying upon the same set of witnesses as against the convict but rejecting them as against the acquitted co- accused is that such evidence must get independent corroboration on material particulars. I have perused the statements of Muhammad Aslam (PW-7) and Muhammad Ishaque (PW-8) Muhammad Aslam (PW-7) stated as under: "Khawaja Bukhsh accused present in the court inflicted sota blow to Ikhtiar , which hit on the upper side of his right eye. Kareem Dad accused inflicted sota blow which hit Ikhtiar on his head."
Similarly Muhammad Ishaque (PW-8) also levelled the same allegation regar ding the individual role of the appellant as well as the acquitted co-accused. I have perused the statement of Dr. Muhammad Rashid, (PW 5), Medical Of ficer at RHC, Dajal, who, during examination by the learned trial court, stated as under:- "Injury No,1 "A lacerated wound of 2-1/2 cm x 1/2 cm x skin deep situated on right side of vertex, 6 cm about from right eye. 10 cm from right ear. Oedematous right eye with ecchymosed, x-ray skull A.P. lateral advised. Patient referred to THQ Hospital, Jampur for further management and x-ray result".
It is obvious from the perusal of the above mentioned medical evidence, as opined by Dr. Muhammad Rashid, (PW 5), that there was only one wound on the person of the deceased namely Ikhtiar Ahmed. The said individual injury on the person of Ikhtiar Ahmed deceased was specifically attributed by both the witnesses namely Muhammad Aslam (PW-7) and Muhammad Ishaque (PW-8) to Khawaja Bukhsh (acquitted co-accused) and Karim Dad (appellant). I am unable to find any indep endent corroboration against the appellant and I am unable to distinguish the case of the appellant from the case of acquitted co-accused. For causing of the one wound as many as four persons were involved albeit two were given the role of holding the witness. This dishonesty on part of the witnesses has vitiated my trust in them. I am thus satisfied that the evidence of Muhammad Aslam (PW-7) and Muhammad Ishaque (PW-8) has no worth and is to be rejected outright. The augu st Supreme Court of Pakistan in its binding judgment passed in the case of lmtiaz alias Taj v. The State (2018 SCMR 344) has enunciated the following principle:- "The law is settled that if the eye-witnesses have been disbelieved against some accused persons attributed effective roles then the same eye-witne sses cannot be believed against anoth er accused person attributed a similar role unless such eye-witnesses receive independent corroboration qua the other accused person."
16. Learned Deputy District Public Prosecutor along with the learned counsel for the complainant have also relied upon the recovery of Soto (Exh.P4), from Karim Dad appellant. A perusal of the recovery memo (Exh.PL) by which the said Sota (Exh.P4) was taken into possession reveals that the same was not stained with blood. Furthermore, the said recovery of the Sota (Exh.P4), cannot be relied upon as Muhammad Afzal SI (PW-10), the Investigating Officer of the case, did not join any witness of the locality during the recovery of said Sota (Exh.P4), which was in clear violation of section 103, Cr.P.C. and cannot be used as incriminating evidence against Karim Dad, (appellant), being evidence which was obtained through illegal means and is hence hit by the exclusionary rule of evidence.
The august Supreme Court of Pakistan in the case of Muhammad Ismail and others v. The State (2017 SCMR 898) at page 901 has held as under:- "For the above mentioned recovery of weapons the prosecution had failed to associate any independent witness of the locality and, thus, the mandatory provisions of section 103, Cr . P. C. had flagrantly been violated in that regard."
Furthermore, no report of Punjab Forensic Science Agency or the Chemical Examiner or the Serologist was produced by the prosecution to reveal that there was human blood identified on Sota (Exh.P4). Even the witnesses to the recovery of Sota (Exh.P4) from the appellant did not state that the same was stained with blood. Hence, this recovery does not of fer any corroboration of an already tainted piece of evidence.
17. Learned Deputy District Public Prosecutor and learned counsel for the complainant have also relied upon the evidence of motive and submitted that it corroborated the ocular account. The learned trial court itself has rejected the evidence of motive and declared the same to be bereft of proof. The motive of the occurrence, given in the oral statement (Exh.PB), was a previous scuffle. No details of said previous scuffle were mentioned in the oral statement (Exh.PB). There is no mention as to the exact time when said previous scuffle took place nor any reason as to why the said previous scuffle had taken place nor the witnesses who had witnessed the said previous scuffle.
A tainted piece of evidence cannot corroborate another tainted piece of evidence. The august Supreme Court of Pakistan has held in the case of Muhammad Javed v . The State ( 2016 SCMR 2021 ) as under: "The said related and chance witnesses had failed to receive any independent corroboration inasmuch as no independent proof of the motive set up by the prosecution had been brought on the record of the case."
18. Considering all the above circumstances, I entertain serious doubt in my mind regarding the involvement of Karim Dad, 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. The august Supreme Court of Pakistan in the case of Muhammad Mansha v.
The State ( 2018 SCMR 772 ) has enunciated the following principle: "Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is circumstance which creates reaso nable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession but as a matter of right."
Reliance is also placed on the 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 2366 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 circumstance which created reasonable doubt in a prudence 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".
19. For what has been discussed above, Criminal Appeal No, 856 of 2012 filed by Karim Dad son of Noor Ahmad (appellant) is accepted and the conviction and sentences of the appellant awarded by the learned trial C court through the impugned judgment dated 10.12.2012 are hereby set aside. Karim Dad son of Noor Ahmad (appellant) is ordered to be acquitted. The appellant is present on bail as the sentence of the petitioner had already been suspended by this Court, therefore, his surety shall stand discharged from his liability and the bail bond submitted by the appellant is hereby cancelled.