TARIQ SALEEM SHEIKH, J.---By this consolidated judgment we propose to decide Murder Reference No. 46/2016/BWP and Criminal Appeal No. 322/2016/BWP as both these matters arise from judgment dated 6.6.2016 passed by the learned Additional Sessio ns Judge, Bahawalnagar , in private complaint titled "Nazeer Ahmad v.
Muhammad Sharif and 5 others" under sections 302, 337-A(i), 337-A(ii), 337-F(v), 337-L(2), 148, 149, P.P.C., in case FIR No.659/2014 dated 24.9.2014 registered at Police Station Minchanabad, District Bahawalnagar .
2. Brief facts of the, case are that on 25.4.2015 the Complainant, Nazeer Ahmad (PW-1), filed a private complaint (Exh.P A) stating that he was a resident of Joyian Jahangir , Mauza Behkanwala, Tehsil Minchanabad, District Bahawalnagar , and was an agriculturist. On 17.6.2014 at about 03:00 p.m. he was in his field with Manzooran Bibi (PW-2.) and son Faisal Nazeer when Muhammad Sharif and Khadim Hussain, who were armed with Sota and hatchet respectively , suddenly attacked him and caused injuries on his head. Maqs ood Ahmad, Muhammad Yasin, Fida Hussain and Murtaza alias Mursaleen followed who beat him as well as Manzooran Bibi and Faisal Nazeer with Soties. One of blows of Fida Hussain landed on the head of Faisal Nazeer and that of Murtaza and Muhammad Yasin on the hands of Manzooran Bibi. On their hue and cry, PWs Muhammad Mazhar and Muhammad Ahmad (given up) were attracted to scene and on their intervention the accused left. The Complainant further stated that the said PWs took him, Manzooran Bibi and Faisal Nazeer to the police station where on his statement Rapat No.13 was recorded at 3:30 p.m. The police prepared their Injury Statements and then sent them to the THQ Hospital, Minchanabad, where they were medically examined. Faisal Nazeer's condition was serious so he was referred to the DHQ Hospital, Bahawalnagar , and then to the General Hosp ital, Lahore, where he breathed his last. The deceased was brought back to THQ Hospital, Minchanabad, where his post-mortem examination was conducted. The police connived with the accused and registered case FIR No.427/2014 under sections 302/34, P.P.C. at Police Station Minchanabad on distorted facts completely deviating from Rapat No.13. The Complainant added that when this illegality came to his knowledge he approached the SHO with the request to register the case in accordance with Rapat No.13 but he refused. Thereupon he made applications to the DSP (Circle), Minchanabad, and the DPO, Bahawalnagar , but they too did not help. Confronte d with this situation, he filed an application under section 22-A, Cr.P.C. before the learned Justice of Peace/Additional Sessions Judge, Minchanabad, who vide order dated 12.8.2014 directed the SHO to register a new FIR in terms of Rapat No.13 but he again dragged his feet. The Complainant filed another application before the learned Additional Sessions Judge for initiation of proceedings against SHO and the Investigating Officer of FIR No.427/2014 under section 155(c) of the Police Order , 2002 read with section 201, P.P.C. The learned Additional Sessions Judge passed another specific order dated 21.8.2014 for registration of second FIR but the police again ignored it. Thereafter , he filed third application before the Additional Sessions Judge which eventually bore fruit and case FIR No.659/2014 dated 24.9.2014 was registered as he desired. According to the Complainant, the Investigating Officer connived with the accused party and despite the fact that there was solid evidence against them he declared Maqsood Ahmad, Muhammad Yasin and Murtaza alias Mursaleen innocent. He was thus constrain ed to institute private complaint Exh.P A.
3. The learned trial Court recorded cursory evidence produced by the Complainant and holding that his complaint had substance summoned for trial all the accused that he had nominated. On 3.7.2015 they were indicted.
4. During the trial the prosecution produced four witnesses while seven-others were examined as Court Witnesses.
Complainant Nazeer Ahmad (PW-l) and Manzooran Bibi (PW-2) provided ocular account of the incident.
Muhammad Iqbal (PW-4) testified about the recovery of Soties P-1 and P-2 at the instance of Fida Hussain and Khadim Hussain respectively . Rana Muhammad Saeed (CW-1) deposed that he prepared scaled site plan of the place of occurrence. Lady Dr. Safia Karim (CW2) and Dr. Haseeb Ahmad (CW-6) furnished medical evidence. The Investigating Officers, Nazar Hussain/AS I (CW-4) and Riaz Ahmad/SI (CW-5), gave details of their investigation and the evidence they collected in this case. The remaining witnesses were formal in nature.
5. On completion of the prosecution evidence the learned trial Court examined the accused under section 342, Cr.P.C. They denied the allegations levelled against them and professed innocence. They said that they were present in the house of Zahida Bibi, sister of Fida Hussain and Khadim Hussain (and wife of accused Muhammad Yasin), when Complainant Nazeer Ahmad and seven others trespassed and attacked them. One Muhammad Arshad alias Manna hit Faisal Nazeer with a Sota which proved fatal. As a result, six persons from their side were injured. When the Complainant and his men left the house of Zahida Bibi, some villagers attacked them. The accused categorically stated that they had not caused any injury to the complainant party of this case and added that they had lodged a cross-version against them. They neither got their statements recorded on oath under section 340(2), Cr.P.C. nor examined any witness in their defence. However , they produced documentary evidence Exh.DB/1 to Exh.DJ in support of their plea.
6. On the conclusion of the trial, vide judgment dated 6.6.2016, the learned Additional Sessions Judge acquitted Maqsood Ahmad of the charge. However , he convicted and sentenced Fida Hussain, Muhammad Sharif, Knadim Hussain, Muhammad Yasin and Murtaza alias Mursaleen as under: Fida Hussain: Convicted under section 302(b), P.P.C. and sentenced to death with direction to pay Rs.200,000/- as compensation to the legal heirs of the deceased in terms of section 544-A, Cr.P.C. and in default thereof to undergo simple imprisonment for a further period of six months.
Muhammad Sharif Convicted under section 337-A(i), P.P.C. and sentenced to pay Daman in the sum of Rs.10,000/- to injured Nazeer Ahmad (PW -1).
Khadim Hussain Convicted under section 337-A(ii), P.P.C. and sentenced to pay Arsh in the sum of Rs.96,192.15 to injured Nazeer Ahmad (PW -1).
Muhammad Yasin Convicted under section 337-F(v), P.P.C. and sentenced to pay Daman in the sum of Rs.50,000/- to injured Manzooran Bibi (PW -2).
Murtaza alias Mursaleen Convicted under section 337-F(i), P.P.C. and sentenced to pay Daman in the sum of Rs.10,000/- to injured Manzooran Bibi (PW -2).
7. Fida Hussain, Muhammad Sharif, Khadim Hussain and Muhammad Yasin (hereinafter referred to the "Appellants") have challenged their conviction and sentence before this Court through Criminal Appeal No.322/2016/BWP while the learned Additional Sessions Judge has sent Murder Reference No. 46/2016/BWP to this Court under section 374, Cr .P.C. for confirmation of death sentence of Fida Hussain.
8. In support of Criminal Appeal No.322/2016/BWP Syed Zeeshan Haider , Advocate, contended that the prosecution case was false and concocted. The incident did not take place in the manner Complainant Nazeer Ahmad (PW-1) and Manzooran Bibi (PW-2) had alleged. The Appellants' cross-version was true and correct. The Appellants had not caused any injury to Complainant Nazeer Ahmad, Manzooran Bibi or Faisal Nazeer deceased.
He further contended that the prosecution case was riddled with material contradictions and the learned trial Court had erred in recording a conviction against the Appellants on the basis thereof. He prayed that the impugned judgment dated 6.6.2016 be set aside and the Appellants be acquitted of the charge.
9. On the other hand, Mr. Asghar Ali Gill, Deputy Prosecutor General assisted by Mr. Muhammad Ashfaq Gujjar , Advocate, supported the impugned judgment and argued that the prosecution had proved its case against the Appellants beyond reasonable doubt. He contended that PWs Nazeer Ahmad and Manzooran Bibi were injured in the incident so their presence at the incident so their presence at the place of occurrence could not be doubted.
Their testimony inspired confidence and they were corroborated by medical evide nce and recovery of Soties P-1 and P-2 at the instance of Appellant Fida Hussain and Khadim Hussain. He further contended that there was no material contradiction in the prosecution evidence which could benefit the Appellants. He prayed that the Appellants' appeal he dismissed and Murder Reference No.46/2016/BWP be answered in af firmative.
10. W e have heard the learned counsel for the parties and have gone through the record with their able assistance.
11. This is a case of multiple versions. The first is contained in FIR No.427/2014 dated 18.6.2014. The said FIR was registered on the written applicatio n of Complainant Nazeer Ahmad (PW-1) which he submitted to Riaz Ahmad/SI (CW-5) when he came to the THQ Hospital, Minchanabad, on receiving information about the incident.
This FIR was subsequently cancelled as the complainant denied that he made the aforesaid pplication and thus disowned it. The second version is embodied in FIR No.659/2014 dated 24.9.2014 and the private complaint Exh.P A. This FIR was registered on the order of the Justice of Peace. The third the cross-version of Appellant Khadim Hussain that he gave in Rapat No.14 and fourth is cross-version of the Appellants which Zahida Bibi got recorded vide Zimni No.7 dated 20.10.2014 and the Appellants reiterated in their statements under section 342, Cr.P.C. recorded during the trial. The fifth is the police version. Nazar Hussain/ASI (CW-4) deposed that during investigation he found that there was a free fight between some persons nominated in FIR No.659/2014 and some accused persons of cross-version lodged by Zahida Bibi. According to his findings, Appellants Fida Hussain, Khadim Hussain and Muhammad Sharif were involved in the incident while Appellants Muhammad Yasin and Murtaza alias Mursaleen and co-accused Maqbool Ahmad (since acquitted) were innocent.
12. The prosecution case presently proceeds on the version set out in FIR No.659/2014 Exh.CW -4/A and the private complaint Exh.P A. As already noted, this FIR was registered on the order of the Justice of Peace and was second FIR in respect of the incident. Its contents were substantially different from FIR No.427/2014 that was earlier lodged on Complainant Nazeer Ahmad's own written application. The Complainant abandoned that FIR alleging that the police had distorted the facts in collusion with the Appellants. We have thoroughly examined the record and have not found any evidence of the alleged collusion. More importantly , we have observed that even after the registration of second FIR as aforesaid the Complainant again changed his version. The following excerpt from the examination-in-chief of the Investigating Of ficer, Nazar Hussain/ASI (CW -4), is of vital importance: "The Complainant, namely Nazeer Ahmad, appeared before me on 28.9.2014 and got recorded his supplementary statement, whereby , he rectified his earlier statement and maintained that his father Bashir Ahmad also received injuries at the hands of the accused persons. In the light of M.L.Rs of injured Bashir Ahmad, Manzooran Bibi and Nazeer Ahmad, the relevant of fences under sections 337-F(v), 337-A(i), 337-A(ii), 337-L(2) of P .P.C. were added."
The fact that the complainant has been changing his version time and again gravely reflects on the veracity of the prosecution case.
13. The prosecution produced Complainant Nazeer Ahmad (PW-1) and Manzooran Bibi (PW-2) for the ocular account. The former was the father while the latter was paternal aunt of Faisal Nazeer deceased. They deposed that on 17.6.2014 at about 3:00 p.m. they were in the field when the Appellants attacked them. On the other hand, the defence plea was that the complainant party assaulted them when they were in the house of Appellant Muhammad Yasin and Zahida Bibi (who was sister of Appellants Fida Hussain and Khadim Hussain). Since the place' of occurrence alleged by the prosecution was denied by the defence, it was its duty to prove the same but it failed to do so. Although the Complainant deposed that blood oozed from the injury of Faisal Nazeer and dropped on the ground, none was found in the field. In his cross-examination the Draftsman, Rana Muhammad Saeed (CW- 1), deposed: "It is correct that none of the PWs pointed out before me any place from where blood-stained earth was collected and secured at the time of visit of I.O. It is also correct that on the four sides (Nort h, South, East or West), neither there was residence of Complainant nor the place of occurrence was agricultural land of Complainant."
14. On the point under discussion the following excerpt from the cross-examination of Riaz Ahmad/SI (CW-5) is also instructive: "In the presence of Complainant Nazeer Ahmad, Haji Bashir , Muhammad Jafar and Mazhar eye-witnesses of the occurrence of case FIR No.427/14, I visited the place of occurrence and I prepared unsealed rough site plan. It is correct that inadvertently I could not get exhibited unsealed site plan of place of occurrence, which is present on file. it is correct that carbon copy of original unsealed rough site plan of occurrence is available on police file, which, is available before me at this stage, which is in my hand writing and bears my signature, which is Exh.DA. The drawing and notes of Exh.DA (carbon copy of unsealed rough site plan has been detached from police file of case FIR No.427/14 and the same has been placed on judicial file and photocopy of Exh.DA has been placed on police file of case FIR No.427/14. It is correct that according to site plan, occurrence took place in front of main gate of Complainant Nazeer Ahmad. Presence of Faisal Nazeer injured (deceased) and accused Fida Hussain etc. is shown in point No.1 and point No.2 of the site plan Exh.DA. It is correct that the Complainant and eye-witnesses of the occurrence did not point out presence of blood stained clay and I also did not find any stain of blood at mettle road.(sic) The Complainant and eye-witnesses of the occurrence of case FIR No.427/14 joined the investigation and got recorded their statements. Till the time investigation remained with me, the Complainant did not show distrust upon me."
15. Even otherwise, the depositions of PWs Nazeer Ahmad and Manzooran Bibi do not inspire confidence because they made material improvements even in the prosecution case set out in FIR No.659/2014 B Exh.CW -4/A and the private complaint Exh.P A with which they were duly confronted. In addition thereto, they suppressed material facts. During investigation on 28.9.2014, PW Nazeer Ahmad got his supplementary statement recorded in which he stated that his father Bashir Ahmad was also injured in the incident. Dr. Haseeb Ahmad (CW-6) deposed that he medically examined him on 17.6.2014 at 6:25 p.m. However , during the trial both the eye-witnesses did not talk about Bashir Ahmad and suppressed his role to bring their testimony in line with their private complaint. It is by now well settled that a witness who makes dishonest improvements in his statement is not trustworthy . Reliance is placed on Ibrar Hussain and others v. The State and another (2007 SCMR 605), Akhtar Ali and others v. The State (2008 SCMR 6), Muhammad Rafique and others v. The State and others (2010 SCMR 385), Muhammad Naeem Inayat v. The State (2010 SCMR 1054 ) and Muhammad Saleem v. Muhammad Azan and another (2011 SCMR 474 ) and Sardar Beni and others v . Munir Ahmed and others (2017 SCMR 344 ).
16. So far as Manzooran Bibi is concerned, she lacks credibility for the additional reason that she made statement under section 161, Cr.P.C. with an unexplained inordinate delay . In Syed Saeed Mohammad Shah and another v. The State (1993 SCMR 550), Abdul Khaliq v. The State (1996 SCMR 1553 ), Muhammad Khan v. Maula Bakhsh and another (1998 SCMR 570) and Muhammad Asif v. The State (2017 SCMR 486), the Hon'ble Supreme Court of Pakistan refused to rely on the testimony of such a witness.
17. According to the prosecution, PWs Muhammad Mazhar and Muhammad Ahmad were attracted to the scene when the incident happened and on their intervention the Appellants stopped beating the complainant party and went away . The said witnesses were independent and could have provided vital corroboration to the testimony of the Complainant and Manzooran Bibi but were not produced. It is true that the prosecution has the prerogative to examine witness of its choice but where a material witness is given up and best evidence is withheld the Court may draw an adverse inference under Illustration (g) of Article 129 of the Qanun-e-Shahadat, 1984, and the law laid down in the cases Shahbaz Masih v. The State (2007 SCMR 1631 ) and Muhammad Asif v. The State (2017 SCMR 486 ).
18. The ocular account is also in conflic t with medical evidence. Dr. Haseeb Ahmad (CW-6), who conducted autopsy of Faisal Nazeer , G found the following injuries on his body:
1. A lacerated wound 6 cm x 2 cm x bone expose with fractured skull and visible brain matter on upper of scalp.
2. Two small purple bruises in the area approximately 3 cm x 3 cm were seen above middle of right clavicle.
3. An abrasion 2 cm x 1 cm on posterior surface of right forearm approximately 7 cm from elbow joint with swelling of about 5 cm x 4 cm.
Multiple lacerations on upper part of left foot about first, second and third toes.
5. A superficial wound about 2 cm x 0.3 cm on the sole of right foot.
PWs Nazeer Ahmad and Manzooran Bibi did not explain how Faisal Nazeer received Injuries Nos.4 and 5. In Muhammad Hussain v. The State (2008 SCMR 345), Irian Ali v. The State (2015 SCMR 840) and Usman alias Kaloo v. The State (2017 SCMR 622), the august Supreme Court considered it as one of the grounds to acquit the accused.
19. The prosecution also relied on the recovery of Soties P-1 and P-2 allegedly made from Appella nts Fida Hussain and Khadim Hussain on 20.11.2014 and 10.12.2014 respectively . Admittedly , both these Soties were commonplace and not blood stained. They have no corroborative value and cannot lend any support to the prosecution case.
20. Neither in FIR No.659/2014 Exh.CW -4/A nor in the private complaint Exh.P A Complainant Nazeer Ahmad stated the motive behind the occurrence. Even during the trial he remained silent on this aspect. However , Manzooran Bibi (PW-2) deposed that "the reason for assault upon us was that firstly the accused party had broken my leg and my nose 2/3 years prior to the occurrence, secondly , Zahida Bibi admin istered poisoning spray through her husband to our fodder and caused death of our buffalo, thereafter hostility between us developed. The case was registered against accused but the accused persons managed deceitfully statement for compromise with my Bhabhi Kaneez Bibi wife of complainant and were not convicted thereafter . Kaneez Bibi and our family did not proceed against the accused afterwards." Except Manzooran Bibi's bald statement there is no evidence to prove these facts. Hence, we hold that the motive in this case is shrouded in mystery .
21. Notwithstanding the defects in the prosecution evidence discussed above, the learned counsel for the Complainant contended that PWs Nazeer Ahmad and Manzooran Bibi should be believed for the reason that they were injured witnesses. We are afraid the contention is misconceived. It is trite that injuries on a prosecution witness only indicate his presence at the spot but what he deposes cannot be accepted as gospel 'truth. His testimony must be evaluated on its own merits in accordance with the settled principles of criminal jurisprudence.
Reliance is placed on Said Ahmad v. Zammured Hussain and 4 others (1981 SCMR 795), Muhammad Hayat and another v. The State (1996 SCMR 1411), Muhammad Pervez and others v. The State and others (2007 SCMR 670), Amin Ali and another v. The State (2011 SCMR 323), Nazir Ahmad v. Muhammad Iqbal and another (2011 SCMR 527 ) and Atta Ullah and 3 others v . The State (2016 YLR 2148 ).
22. The defence lodged a cross-version through Zahida Bibi vide Zinmi No.7 dated 20.10 2014 which they reiterated in their statements under section 342, Cr.P.C. They maintained that the complainant party was the aggressor and attacked them in the house of Appellant Muhammad Yasin and Zahida Bibi (sister of Appellants, Fida Hussain and Khadim Hussain). As a result, six persons from their side (including Zahida Bibi, Muhammad Yasin, Muhammad Sharif, Sardaran Bibi, Fida Hussaia and Khadim Hussain) were injured. When the Complainant and his men left the house of Zahida Bibi, some villagers attacked them owing to which some of them were hurt.
The Appellants averred that they had not caused any injury to the complainant party . In support of their plea they also produced documentary evidence which included: certified copy of evidence of PW-1 to PW-9 recorded in cross-version case titled "The State v. Nazeer Ahmad etc." (Exh.DB/1 to Exh.DB/18), copies of MLC, Injury Statement, report of the Radiologist regar ding injuries of Zahida Bibi (Exh.DC, Exh.DC/1 and Exh.DC/2), copies of MLC, Injury Statement, report of the Radiologist regarding injuries of Sardara n Bibi (Exh.DD, Exh.DD/1 and Exh.DD/2), copies of MLC and Injury Statement of" Muhammad Yasin (Exh.DE and Exh.DE/1), copies of MLC and Injury Statement of Khadim Hussain (Exh.DF and Exh.DF/1), copies of MLC and Injury Statement of Fida Hussain (Exh.DG and Exh.DG/1), copies of unsealed site plan of cross-version case (Exh.DH), Recovery Memo of Sota from Mazhar Iqbal accused of cross-version (Exh.DI) and Recovery Memo of Sota from Nazeer Ahmad accused of cross-versio 1 (Exh.DJ).
23. Admittedly , the Appellants did not get their statements recorded under section 340(2), Cr.P.C. There may also be a question whether documents Exh.D B/1 to Exh.DJ are sufficient to prove the cross-version. Nevertheless, if one gives it a thought one would notice that it too does not contain the whole truth. In the first instance, the Appellants have not mentioned the motive behind the alleged aggression. Secondly , it is difficult to believe that they and other people on their side had not reacted -- not even in self-defence. Thirdly , if the complainant knew that Muhammad Arshad alias Manna had inflicted a fatal blow to his son Faisal Nazeer there was no reason for him to substitute Appellant Fida Hussain for him.
24. Both the parties have suppressed their own role and showed that the other side is the aggressor and the real culprit. Thus, from the L available record it is difficult to discern the truth. In Rajmeer Khan and another v. Noor- ul-Haq and others (2019 SCMR 1949 ) the Hon'ble Supreme Court of Pakistan when confronted with a similar situation ruled as under: "Both the parties had tried to hide the truth and to minimize their own roles. After disbelieving the stories advanced by both the rival parties the High Court had reconstructed the story and had obser ved that the case in hand was a case of a free fight entailing individual liability of each accused person. We have, however , found that the truth in this case was mixed very heavily with something which was untrue and both the parties to this case had not approached the court with clean hands. In these circumstances we have found it to be impossible to discern the truth from such a heap of falsehood and, thus are left with no other option but to acquit Mushtaq Khan Appellant by extending the benefit of doubt to him."
25. Respectfully following Rajmeer Khan's case, supra, we also extend benefit of doubt to the Appellants and accept Criminal Appeal No.322/2016/BWP). As a result, the impugned judgment dated 6.6.2016 is set aside and the Appellants are acquitted of the charge. They shall be released forthwith if they are not required to be detained in some other case.
26. Murder Reference No.46/2016 is answered in the NEGA TIVE and the sentence of death awarded to Fida Hussain is NOT CONFIRMED.