Aftab Gil (convict/appellant), Joseph Gil, Daud Masih and Afzal Masih (acquitted/respondents) faced trial in private complaint titled "Ijaz Masih versus Joseph Gil and others " and on conclusion of trial vide judgment dated 14.07.2015, Aftab Gil was convicted under Section 302(b) PPC for the murder of Mst. Shahnaz Bibi (deceased) and sentenced to imprisonment for life, along with a compensation of Rs.200,000/-, to be paid to the legal heirs of deceased, in case of default to further suffer simple imprisonment for six months. The remaining accused namely Joseph Gil, Daud Masih and Afzal Masih were however , acquitted of the charges. Criminal Appeal No. 955-J of 2015 has been filed by Aftab Gil convict to challenge his conviction and sentenc e, Criminal Revision No. 897 of 2015 has been filed by Faisal Ijaz (son of Ijaz Masih-complainant) to seek enhanc ement of sentence of Aftab Gil, whereas, PSLA No. 257 of 2015 has also been filed by Faisal Ijaz to seek permission to file appeal against acquittal of Joseph Gil, Daud Masih and Afzal Masih. All these matters are being decided through the instant judgment.
2. The prosecution case in brief as set out in the complaint filed by Ijaz Masih complainant is that on 20.10.201 1 at 9.00 p.m., the complainant along with his brother Niaz Masih (PW-7), Iqbal Masih and other family members, was sitting in the Courtyard of his house, while Mst. Shahnaz Bibi (deceased) was doing her work. Abruptly , the accused persons Joseph Gill, Aftab Gil, Daud Masih and Afzal Masih, all armed with deadly weapons, entered the house and started firing. Iqbal Masih (brother of the complainant) stood up, whereupon, all the four accused made straight firing at him, hitting multiple parts of his body , whereupon, he fell down, whereas, the complainant and others laid down. Meanwhile, Mst. Shahnaz (deceased) came forward and Joseph Gil accused armed with gun made straight fire which hit front of her chest, simultaneously Aftab Gil made a fire which hit right side of her face and she fell down and in that condition Daud Masih made straight fire which hit her left arm. The complainant party made hue and cry, whereupon, the accused out of the house by making firing. Mst. Shahnaz succumbed to the injuries, whereas, Iqbal Masih received fire-arm injuries.
It was averred in the complaint that earlier the complainant got lodged an FIR No. 261 dated 20.10.201 1 but his complete version was not brought in the FIR and then the local police in connivance with accused persons did not investigate the case properly , whereupon, the private complaint was filed.
3. After recording cursory evidence, all the four accused were summoned to face trial. The entire proceedings of the trial, the crux of prosecution evidence and the stance of the accused including the convict/appellant stand recorded in detail in the judgment of learn ed trial Court itself, therefore, it is not thought appropriate to reiterate the same here.
4. I have heard the arguments of learned counsel for the private parties as well as the learned law officer and examined the record.
5. It has been observed 'that the occurrence in this case took place on 20.10.201 1 at 9.00 p.m. and the FIR was got lodged on the same night at 9.20 p.m. It is matter of fact that in the FIR a general role had been ascribed to all the accused in the manner that all the accus ed simultaneously and indiscriminately started firing soon after entering into the house and due to their firing Iqbal Masih and Shahnaz Bibi received injuries. The private complaint was filed by the complainant on 22.2.2012 i.e. with a delay of almost four months. In criminal cases, delay simpliciter may not be worth considering, but it is bound to create a sense of doubt in the prosecution case and it is for the prosecution itself to sufficiently explain the delay . Here in this case, although the complainant has tried to justify the filing of private complaint by stating that his correct version was not recorded and brought in the FIR, but no'explanation whatsoever has been given by him to file the private complaint with such a delay . If correct version of the occurrence was not entertained by the police and the FIR was not chalked according to the stance, then the complainant had multiple remedies available to him, as he could have approached the police hierarchy pointing out his concern, or he could have approached the Court of law in appropriate forum to highlight his grievance with regard to recording of correct and complete version of the occurrence, but the complainant kept on sleeping on his right and afterwards, filed the private complaint. Since no explanation what to talk of plausible explanation has been furnished, this Court has no doubt to infer that as a matter of fact the sole intention to file the private complaint was to improve his case, because otherwise, as discussed above, the FIR, did not disclose the independent role of any of the accused and all were implicated with a general Tole.
6. It has further been noticed that although in the private complaint the complainant improved his case by attributing individual role to Joseph Masih and Aftab Gil, but it is matter of fact that the complainant Ijaz Masih as well as Iqbal Masih (injured) died during the course of trial, thus they could not be examined and thus the prosecution was left with the sole eye-witness namely Niaz Masih. Said Niaz Masih (PW-7) when appeared in the witness box in clear and unambiguous terms stated that: "All the accused persons started firing with their respective weapons upon us. My brother Iqbal Masih stood up from his place upon which all accused persons made firing upon him with intention to'murder him. Fire shot hit on the various parts of his body due to which he fell down on the earth. .......................................... .........................................
Meanwhile, Shahnaz Bibi, wife of my brother Ijaz Masih, came forward to us upon whom accused Joseph Gil made a fire shot with intention to murder her with his gun, which hit on her chest and after that second fire shot was made by accused Aftab Gil with his gun with intention to kilt her which landed on the right side of her face due to these injuries Shahnaz Bibi fell down on the earth. Accused Daud Maseeh made a fire shot with his gun on fallen Shehnaz Bibi which hit her on her left arm. On our hue and cry the accused persons left the place of occurrence and went outside the house while raising lalkara and firing outside the house. I and my brother and Ijaz Maseeh attended the injured persons........"
If the statement of Niaz Masih (PW-7) is admitted as it is, then there remains no doubt that when four persons with their respective weapons made random firing at the time when they entered into the house, then two of the accused made specific fires at the deceased and the injured and then all the four accused also made firing outside the house when leaving the place of occurrence, then lot of empties must have been there at the spot and furthermore, the blood must have also been present at two places i.e. the place where Mst. Shahnaz Bibi sustained injuries and the place where Iqbal Masih had received fire arm shots, but:-- i)It has come in the statement of this witness that the I.O. visited the place of occurrence on the same night and collected blood stained earth from the place of murder of Mst. Shahnaz Bibi, alone and not from the place where allegedly Iqbal Masih had also sustained injuries during the same occurrence at the same place; ii) During cross-examination admitted that "we did not collect any cartridge/c rime empty from the place of occurrence." Although the witness farther explained that big number of people had gathered at the crime scene due to which no crime empty could be secured, but this explanation is of no use to the prosecution because crime empties were the most important piece of evidence, which could be used for corroborative purposes, and in the absence thereof, an important factor which could have connected the accused with the commission of the crime, is missing in this case; iii) As shall be seen from the statement of Niaz Masih (PW-7) he had also attended Mst. Shahnaz Bibi and Iqbal Masih in injured condition. Since according to the prosecution both the injured had sustained fire arm injuries, definitely their clothes must have been smeared with blood and the person attending the injured in such condition, must also have carried blood stains on his clothes and this fact has been admitted by this witness but blood stained clothes of this witness were not procured.
In addition to the above, this witness made dishonest improvements in his statement to advance the case of the prosecution but the defence confronted him on almost each of the improved point. Some of the references are given below: "I have stated before, police that on 20.10.201 1 at s about 09.00. I was present in the house of my real brother Ijaz Maseeh, confronted with statement Ex.DA where it is not so specifically recorded.
It have stated in my statement that my brother Iqbal Maseeh stood up upon which the accused persons made fire shots upon him, confronted with Ex.DA where it is not so specifically recorded.
It is incorrect to suggest that in Ex.DA, I have stated that my brother Iqbal Maseeh and Shehnaz Bibi deceased received fire shots of all accused persons and after receipt of fire shots Iqbal Mase eh and Shehnaz Bibi deceased fell down on the earth, confronted with Ex.DA where it is so recorded .
It is incorrect to suggest that I have recorded Ex.D that accused person made firing upon us and we saved ourselves by lying on the ground while Iqbal stood up, confronted with Ex.D where it was so recorded.
I have stated before the pohce that accused Joseph Gil made a fire shot with his gun which hit Shehnaz Bibi deceased in front of her chest, accused Aftab Gil made a fire shot with his gun which hit on the right side of face of Shehnaz Bibi whereas fire shot made by Baud Maseeh accused by his gun, hit Shehnaz Bibi deceased on her left arm, confronted with Ex.DA where no specific injury or fire shot has been attributed to any accused.
It is well settled proposition of law as declared by the Hon'ble Supreme Court of Pakistan in the case "Farman Ahmed versus Muhammad Inayat and others" (2007 SCMR 1825 ), statement of a witness improving his version subsequently to strengthen the prosecution case, being improved dishonestly , could not be relied upon and once such improvements are found to be deliberate and dishonest, it would cast serious doubts on veracity of such witness.
6. As regards recovery of crime weapons on the pointation and disclosure of accused Aftab Masih, the Investigating Officer of this case Asmat Ullah Khan CW-2 stated that on 30.12.201 1 the said accused during interrogation made the disclosure and got recovered gun along with live cartridges under the bed form cot lying near the northern wall of the room of his accused:-- i) Keeping in mind that the occurrence in this case took place on 20.10.201 1 and the accused had successfully managed his escape from the place of occurrence along with crime weapon, it is not believable the said accused still would have kept the weapon of offence intact in his house, so as to be subsequently recovered and used against himself. ii) Even otherwise, as held above the sole eye-witness Niaz Masih PW-7 has made dishonest improvements in his statement before the Court, thus is not worthy of credence, therefore, this Court is only left with the contents of the FIR, wherein, no specific injury was attributed to any of the accused. In this backdrop, the recovery of weapon, even if believed, the same becomes totally inconsequential in this case.
7. Further , it has been observed that in the FIR the complainant had taken a specific motive that a few days earlier the children from both the sides had a quarrel and out of that vendetta the occurre nce in this case took place, but Niaz Masih PW-7 in his examination-in-ch ief did not utter a single word on this aspect, nor any witness of the said earlier quarrel was brought in the witness box. Therefore, this Court is convinced that though the motive was taken by the prosecution but the same could not be established and thus the prosecution is bound to face its adverse impact.
8. For what has been discussed above, I have no doubt to hold that prosecution has not been able to prove its case against the convict/appellant beyond any shadow of doubt, as the sole eye-witness had made dishonest improvements in his statement, the recovery is inconsequential and does not conne ct the convict/appellant with the commission of the crime and the motive though taken but could not be proved. Consequently , Criminal Appeal No. 955-J of 2015 is allowed, the conviction and sentence recorded against the convict/appellant is set- aside and he is ordered, to be released forthwith if not required in any other case.
9. Since the convict has been acquitted of the charges, as such, Criminal Revision No. 897 of 2015 is dismissed for the reasons detailed above.
10. In the case "Mohammad Azam and others vs. The State" (2009 SCMR 1232 ), the Hon'ble Supreme Court of Pakistan while laying down the criteria for interference in a judgment of acquittal, held that: "Findings of Court acquitting the accused must be proved to be perverse, arbitrary , whimsical, unreasonable, fake, concocted, artificial, ridiculous, shocking, false, based on misreading of material evidence, on inadmissible evidence, on a view not possible to gather from the evidence on the record, highly conjectural, or based on surmises and unwarranted in law. Acquitted accused is credited with two advantages, one his innocence at the pre- trial stage and the other earned by him after his acquittal by a Court of competent jurisdiction."
While seeing the PSLA No. 257 of 2015 on the touchstone of above referred judgm ent of the apex Court, it remains a fact that in the FIR a joint role had been ascribed to all the acquitted accused/respondents, subsequently although the prosecution advanced its case but statement of sole eye-witness has been held to be full of dishonest improvements and no recovery was effected from any of the acquitted accused/respondents and the motive also could not established, therefore, the reasoning given by the learned trial Court in recording acquittal of the accused/respondents being solid and convincing, do not call for interference by this Court. As such, PSLA fails and is dismissed.