Sadaqat Ali Khan, J.--This single judgment shall dispose of Criminal Appeal No. 179618 of 2018 filed by Muhammad Tariq and Nasir Ali appellants (against their convictions) and M.R No. 375 of 2018 sent by Trial Court for confirmation of death sentence of Muhammad Tariq appellant or otherwise, as both the above stated matters have arisen out of the same judgment dated 28.02.2018 passed by learned Additional Sessions Judge Shahkot, according to which appellants were convicted and sentenced as under: Muhammad T arim appellant 1Under Section 302(b), PPC He was sentenced to death as Tazir along with compensation Rs.3,00,000/- payable to the legal heirs of the deceased u/S. 544-A, Cr .P.C. which shall be recovered as arrears of land revenue and in default thereof, to further undergo 6-months S.I.
2Under Section 364- A, PPC He was sentenced to DEA TH.
3Under Section 377 read with SectionUnder Section 377 read with Section 4Under Section 201/34, PPC He was sentenced to 5 years R.I with fine of Rs. 30,000/- and in default thereof to further undergo 3-months S.I.
Nasir Ali appellant 1Under Section 201/34 PPC He was sentenced to 5-years R.I along with fine Rs. 30,000/- and in default thereof, to further undergo 3-months S.I.
(The sentences of imprisonment awarded to Muhammad Tariq appellant were ordered to be run concurrently .
Benefit of Section 382-B, Cr .P.C. was given to the appellants/convicts.)
In case FIR No. 31 dated 28.1.2014 in offence under Section 363, PPC (later on added offences under Sections 371/54, 364-A, 302/201/34, PPC), Police Station Saddar Shah Kot, District Nankana Sahib.
2. The facts of the case have been stated by Azhar Ali alias Taidi complainant (PW1) in his statement before the learned trial Court, which is hereby reproduced for narration of the facts: "On 27.01.2014 I returned to my house after earning livelihood and my son Burhan was not present in house. We started search of my son Burhan. My neighbors Muzafar Ali and Iftikhar told me that my son was in the company of Nasir and Tariq at tubewell at 4/4.30 pm. We approached father of accused Tariq. Shafi father of accused Tariq made telephone call to accused and asked about my son Burhan. Tariq and Nasir told that they murdered my son by strangulation and buried his dead body in agricultural land of Muhammad Khan on Pattri of Khala. I moved application Exh.P A to police station for registration of FIR. I.O arested not only father of accused but also accused persons. The accused persons led to place of burial of my son in the presence of people of village. They dig out land and got recovered dead body of my son namely Burhan. The dead body was found lying in Tora P-1. Tora P-1 was opened whereafter dead body of my son was in tire condition. The hands of my son were tied behind back of my son. The legs of my son were found around the neck of my son. The dead body was untied by Toheed Ahmad.
Tora P-1 and last worn clothes of deceas ed P-2 were taken into possession vide recovery memo. Exh:PC attested by me and Zubair ."
3. After registration of the case, investigation started and on completion of the same report under Section 173, Cr.P.C. was submitted in the trial Court.
4. Learned trial Court after observing legal formalities provided under the Criminal Procedure Code framed the charge against the appellants, to which they pleaded not guilty and prosecution evidence was summoned.
5. Prosecution produced as many as eleven witnesses (PW-1 to PW-11) and certain documents i.e. Exh.P A to Exh.PCC.
6. Medical evidence has been furnished by Dr. Hafiz Abdul Rehman Tariq PW-9, who conducted postmortem examination on the dead body of Burhan Ali deceased and observed as under: "INJURIES A ligature mark seen on anterior aspect of neck, above thyroid cartilage with size of 10 CM x 1.5 CM.
2. A minor contusion seen around the ankle joint on both the legs, trickle rings.
Remarks / Opinion A ligature mark on anterior aspect of neck was anti-mortem and tracheal rings corresponding to ligature were laxed. Blood tinged froth was seen in tracheal and air bubbles gushed out from lungs on cut. Hyoid, bone was healthy , anal swabs were sent to PFSA, for chemical examination for semen detection and DNA analysis. In my opinion, death was caused by as physical due to strangulation; opinion regarding sodomy will be after receipt of the report from PFSA. The time between death and postmortem was 24 to 36 hours"
7. On the other hand, statements of the appellants were recorded under Section 342, Cr.P.C., who refuted the allegations so leveled against them. The appellants neither opted to appear as witness under Section 340(2), Cr.P.C. nor produced any oral defence evidence; however , they produced documents Exh.DA and Exh.DB in their defence and in reply to question "Why this case has been registered against you and why the PWs have deposed against you?" Muhammad Tariq appellant replied as under: "I have been wrongly involved in this case as scapegoat. PWs and complainant are closely inter se and they have deposed falsely in the Court."
Likewise, in reply to question "Why this case has been registered against you and why the PWs have deposed against you?" Nasir Ali appellant replied as under: "I have been wrongly involved in this case as scapegoat. PWs and complainant are closely inter se and they have deposed falsely in the Court."
8. After conclusion of the trial, learned trial Court convicted the appellants with above said sentences. Hence this appeal.
9. Learned counsel for appellants have contended that:-
(i) Impugned judgment of the trial Court is against law and facts on the file and is liable to be set-aside.
(ii) that the prosecution has failed to prove its case against the appellants/convicts as there are many major discrepancies in the statements of the PWs and the learned trial Court has convicted the appellants on the basis of surmises and conjectures;
(iii) it is contended that the impugned judgment of the trial Court is not maintainable in the eyes of law;
(iv) lastly submitted that instant appeal may be accepted and the impugned judgment of the trial Court may kindly be set aside and appellants/convicts may be acquitted.
10. On the other hand, learned D.P .G has vehemently opposed the appeal and submitted that:--
(i) the prosecution has proved its case beyond any shadow of doubt against the appellants/convicts with solid evidence and prayed for the dismissal of the appeal.
11. We have heard the learned counsel for the appellants as well as learned D.P.G, on perusing the record with their assistance, observed as under:--
(i) The detail of prosecution case has already been given in para-2 of this judgment; therefore, there is no need to repeat the same to avoid the duplication and repetition.
(ii) According to the FIR, Burhan Ali aged about 11/12 years while playing along with children including Muhammad Tariq and Nasir Ali appellants at tube well peter engine belonging to Guizar on 27.1.2014 at 4:30-pm went missing, regarding which, FIR wast registered on the following day on 28.1.2014 at 3:35-pm with unexplained delay of about 23 hours on the written application Exh.P A moved by his father Azhar Ali alias Taidi complainant PW-1 against appellants on the statements of Iftikhar PW-2 and Muzaf far Ali PW-3, who statedly had seen Burhan Ali abductee (deceased) in the company of appellants while playing at above said place. After registration of the FIR on 28.1.2014, complainant Azhar Ali alias Taidi PW-1 moved written application Exh.PB stating therein that Muhammad Shafi father of Muhammad Tariq appellant, told before the police that Muhammad Tariq appellant through telephone informed him that he after murdering Burhan Ali abductee concealed his dead body with the help of Nasir Ali- appellant on 'sua patri' in the land of Muhammad Khan, thereafter , dead body of Burhan Ali deceased was recovered from said place. No person from the prosecution claims to be the eye-witness of the occurrence, rather case of the prosecution is based on circumstantial evidence, which is categorized as under:--
(1) Last seen evidence furnished by Iftikhar PW -2 and Muzaffar Ali PW -3.
(iii) Iftikhar PW-2 and Muzaf far Ali PW-3 stated in their statements (examination-in-chief) that on 27.1.2014 at 4:30- pm they were coming back after taking medicine of the father of Iftikhar PW-2, they saw Burhan Ali deceased with appellants and told this fact to the complainant. Last seen evidence is a weak type of evidence which is procured at any time during the investigation whenev er direct evidence is not available to prosecution and cannot be relied for capital charge unless corroborated with some other independent piece of evidence which is conspicuously missing in the present case. Reliance is placed on case tilted "Altaf Hussain Vs. Fakhar Hussain and another" (PM 2008 SC 687) in which Hon'ble Supreme Court of Pakistan has observed at page 689 as under: "it is settled principle of law that the last seen evidence is a weakest type of evidence unless corroborated with some other piece of evidence which is conspicuously missing in this case."
(iv) Both these witnesses (Iftikhar PW-2 and Muzaf far Ali PW3) further stated in their Statements (examination-in- chief) that Muhammad Shafi father of Muhammad Tariq appellant informed them that his son Muhammad Tariq appellant told him that he and Nasir Ali appellant murdered Burhan deceased, buried his dead body on 'pattri of khala' in the land of Haji Muhammad Khan; the appellants were arrested and got recovered the dead body of son of complainant. Muzaf far Ali PW-3 is son of Ghulam Sarwar maternal uncle of Iftikhar PW-2. Iftikhar PW-2 stated in his cross-examination that he had stated before the police in his statement recorded under Section 161, Cr.P.C. that he was coming back to his house after getting medicine of his father , which was confronted to him with Exh.DA where said word was not recorded. He further stated in his cross-examination that he got recorded in his statement recorded under Section 161, Cr.P.C. that Muhammad Shafi father of Muhammad Tariq appellant told them that he was informed by Muhammad Tariq appellant that they killed and buried son of the complainant, which was confronted to him with Exh.DA, where it was not so recorded. Likewise, Muzaf far Ali PW-3 stated in his cross- examination that he got recorded in his statement recorded under Section 161, Cr.P.C. that Azhar , complainant had come to his house and told him that his son was missing, which was confronted to him with Exh.DB where it was not so recorded. He further stated in his cross-examination that he got recorded in his statement recorded under Section- 161, Cr.P.C. that Burhan Ali deceased was playing with the accused persons at tube well, which was confronted to him with Exh.DB, where it was not so recorded. These three witnesses (Azhar Ali alias Taidi complainant PW-1, Iftikhar PW-2 and Muzaffar Ali PW-3) stated in their statements (examination-in-chief) that both the appellants got recovered dead body of Burhan Ali deceased. Contrary to this, application Exh.PB moved by Azhar Ali alias Taidi complainant PW-1 shows that dead body was recovered on pointing out of Muhammad Shafi father of Muhammad Tariq appellant and not on pointing out of present appellants. Likewise, Rapt No. 26 dated 28.1.2014 Exh.P A/3 shows that dead body was recovered on pointing out of Muhammad Shafi father of Muhammad Tariq appellant. Likewise, complaint Exh.P A/2 also shows that dead body of Burhan Ali deceased was recovered on pointing out of Muhammad Shafi father of Muhammad Tariq appellant. Further , Muhammad Yousaf S.I PW-11 did not state in his statement (examination-in-chief) that on pointing out of the appellants, dead body of Burhan Ali deceased was recovered, rather he stated in his statement (examination-in-chief) that father of Muhammad Tariq appellant during investigation came at the place from where Burh an Ali deceased was kidnapped and told that Muhammad Tariq appellant informed him on telephone that he buried the dead body of Burhan Ali deceased at the bank of minor Rajbah Kotla Kahlowan after committing his murder; he along with complainant and other people went to the bank Rajbah Kotlan KahloKvan and saw fresh digging of soil after removal of fresh soil, got recovered the dead body of Burhan Ali deceased. Muhammad Yousaf S.I PW-11 stated in his statement (examination-in-chief) that appellants were arrested on 31.1.2014 much after recovery of the dead body of Burhan Ali deceased i.e. 28.1.2014. Azhar Ali complainant PW-1, Iftikhar PW-2 and Muzaf far Ali PW-3 have made above discussed dishonest improvements including recovery of dead body of Burhan Ali deceased on pointing out of appellants, which shatter their credibility . Reliance is placed on case "Akhtar Ali and others v. The State" (2008 SCMR 06) in which august Supreme Court of Pakistan has observed at page 12 as under: "It is also a settled maxim when a witness improves his version to strengthen the prosecution case, his improved statement subsequently made cannot be relied upon as the witness has improved his statement, dishonestly , therefore, his credibility becomes doubtful on the well-known principle of criminal jurisprudence that improvements once found deliberate and dishonest cast serious doubt on the veracity of such witness."
Learned D.P.G submits that Muhammad Shafi father of Muhammad Tariq appellant who statedly got recovered dead body of Burhan Ali deceased is neither witness nor accused.
(v) Muhammad Yousaf S.I PW-11/I.O of this case stated in his statement (examination-in-chief) that both the appellants during interrogation disclosed and pointed out the places of abduction, committing sodomy and murder of Burhan Ali deceased, which is joint one and is inadmissible evidence.
(vi) DNA report is negative.
(vii) Recovery of rope P3 on pointing out of Muhammad Tariq appellant and recovery of Kassi P4 on pointing out of Nasir Ali appellant, considering the peculiar circumstances of this case, are not believable.
(2) Medical evidence furnished by Dr . Hafiz Abdul Rehman T ariq PW9 .
(viii) Medical evidence may confirm the ocular evidence with regard to the seat of the injury , nature of the injury , kind of weapon used in the Occurrence but it would not connect the accused with the commission of crime".
Reliance is placed on case tilted "Altaf Hussain v. Fakhar Hussain and another" (PLJ 2008 SC 687) in which Hon'ble Supreme Court of Pakistan has observed at page 689 as under: "It is also settled law that medical eviden ce may confirm the ocular evidence with regard to the seat of the injury , nature of the injury , kind of weapon used in the occurrence but it would not connect the accused with the commission of crime."
12. In view of the above discussion, we entertain serious doubt in our minds regarding participation of the appellants in the present case. It is settled principle of law that for giving benefit of doubt, it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in the prudent mind about the guilt of the accused, then he would be entitled to its benefit not as a matter of grace or concession, but as of right. Reliance is placed on case reported as "Muhammad Akram vs. the State" (2009 SCMR 230 ).
13. It is important to not here that Nasir Ali appellant has not been convicted in offence under Section 302, PPC, rather he has only been convicted in offence under Section 201/34, PPC with the sentence of 5-years R.I.
Muhammad Tariq appellant has been convicted in offence under Section 302, PPC also, but report dated 2.2.2019 submitted by learned Sessions Judge, Nankana Sahib shows that legal heirs of Burhan Ali deceased i.e. Azhar Ali (father) and Mst. Shehnaz Bibi (mother) have effected compromise and have forgiven Muhammad Tariq appellant in the name of Almighty Allah without any Badl-e-Sulah and waived their right of Qisas and Diyat.
14. For the foregoing reasons, this appeal is allowed, conviction and sentences of Muhammad Tariq and Nasir Ali appellants awarded by the Trial Court through impugned judgment are hereby set aside and they (Muhammad Tariq and Nasir Ali appellants) are acquitted of the charges. They are directed to be released forthwith if not required in any other case. Murder Reference is answered in NEGA TIVE and death sentence of Muhammad Tariq appellant is NOT CONFIRMED .