Muhammad Tariq Nadeem, J.--Muhammad Mansha (appellant) along with his co-accused namely Muhammad Arshad (Muhammad Rashid), Yousaf, Muhammad Khaliq, Waqas alias Pup and Fayyaz (since acquitted.) was tried by learned trial Court in a private compl aint filed under Sections 302, 337-A(i), 337-F(i), 337-L(2)/148/149, PPC Police Station Saddar Sheikhupura, for committing murder of Mst. Sumaira Bibi, sister of the complainant and on conclusion of trial, vide judgment dated 22.4.2017 he was convicted and sentenced as under: Under Section 302(b). PPC Death with direction to pay Rs. 5,00,000/- (rupees five lacs only) as compensation under Section 544-A, Code of Criminal Procedure to the legal heirs of the deceased and in default whereof to further undergo six months S.I.
Under Section 452, PPC: Seven years with fine of Rs. 50,000/- and in default whereof to further undergo three months SI.
Assailing the- above convictions and sentences, Muhammad Mansha (appellant) has filed titled appeal and Abid Hussain complainant has filed P.S.L.A. against acquittal of co-accused/ respondents whereas the learned trial Court has sent Murder Reference for confirmation, or otherwise of sentence of death awarded to him. As all the matters have stem out from the same judgment, therefore, are being decided together through this single judgment.
2. It is pertinent to mention here that earlier on the complaint (Ex.P A) of Abid Hussain complainant F.I.R. No 355 dated 19.05.2013 under Sections 324/452/148/149 PPC, was registered at Police Station Saddar Sheikhpura.
Subsequently vide case diary No. 3 dated 23.05.2013 offence under Section 302 PPC was added. Being dissatisfied with the investigation of the police, the complainant filed the instant private complaint.
3. The facts of the case have been stated by Abid Hussain complainant (PW1) in his statement before the learned trial Court, which is hereby reproduced for narration of the prosecution story: "That on 19.05.2018 at noon time at 3.00 p.m., me and my father went to irrigate the Charri crop. The goats and sheeps of Yousaf were grazing in our Charri crop. We asked to the accused Yousaf to took his sheeps and goats from our Charri crop which were destroying the crop. The accused Yousaf did not take his sheeps and goats out of the crops and started quarreling with us. The people who were gathered there hushed up the matter between us.
We went to our house At about 4.45 p.m six accused persons present in the Court came at our house. The accused Yousaf was armed with Kaleshio nkove, the accused Mansha was armed with pistol, the accused Bholla s/o Bashir was armed with pistol, accused Arshad was armed with Sota, the accused Fayyaz was armed with pistol, the accused Waqas alias Bhup was armed with an iron ord. The accused persons started beating me and my father in-our house. My sisters made request to the accused persons for our rescue, the accused Yousaf asked that no of should be left alive. The accused Mansha made a fire by hi pistol on my sister Sumaira Bibi which hit on her head, the second fire was made by accused Bholla which hit over the navel of my sister Saba. The second fire made by Fayyaz hit under the navel of my sister Saba Bibi. The accused Arhsac inflicted injuries on my person by Sota whereas the accused Bhup caused injuries to my father by the blows of iron rod The accused Yousaf made a burst of Kaleshionkove on the leg: of my father . The accused persons after raisin g lalkaras and firing left through the street. After two/three days of the occurrence postmortem of my sister Sumaira Bibi was conducted. Medical examination of me, my father and Saba Bibi was also conducted."
4. Arguments heard and record perused.
5. According to the prosecution story , occurrence in this case took place on 19.5.2013 at about 5,30 p.m. whereas matter was reported to the police on the same day at 6.50 p.m but no medico legal certificate of Sumaira Bibi was obtained. According to the postmortem report (Ex. CW-10/A) Sumaira Bibi died on 23.5.2013 at 5:40 p.m. whereas her postmortem was conducted on 24.05 .2013 at 9:00 a.m with the considerable delay of about fifteen hours and forty minutes. It was a case of delayed postmortem, which casts serious doubt about the veracity of prosecution case. We are guided from the case law titled as "Muhammad Rafique alias Feeqa versus The State" (2019 SCMR 1068 ).
6. It is significant to point out here that co-accused of the appellant, who were attributed the role of effective firing and all family members sustained injuries, were acquitted of the charge by the learned trial Court while extending benefit of doubt to them, as such the eye-witnesses produced by the prosecution were capable of falsehood. It is a trite principle of law and justice that once prosecution' witnesses are disbelieved with respect to a co-accused then, they cannot be relied upon with regard to the other accused unless they are supported by corroboratory evidence coming from independent source rand shall be unimpeachable in nature but that is not available in the present case. Reliance is placed on. cases reported as "Shahbaz versus The State" (2016 SCMR 1763 ), "Nazir Ahmad versus The State" (2018 SCMR 787 ) and "Haroon Shafique versus The State and others" (2018 SCMR 21 18).
7. After going through the record we have also taken note of that medico legal certificate of Saba Bibi (PW-3) has been obtained on 17.3.2014, i.e. with a delay of almost ten months after the occurrence. The statement of Khadim Hussain (PW-2) under section 161 Cr.P.0 (Ex.DE) was recorded on 20.6.2013 i.e. with a considerable delay of one month. These facts reveal that said witnesses were not truthful witnesses. Reliance is placed upon the case titled as "Abdul Khaliq vs. The State" ( 1996 SCMR 1553 ).
8. There is an intriguing aspect of the case that according to the prosecution story Muhammad Imtiaz (brother-in- law of the complainant) was also injured during this occurrence but he was not produced before the learned trial Court. We have noticed that the prosecution has withheld the best available evidence, therefore, adverse inference under Article 129(g) of Qanoon-e-Shahadat Order , 1984, to the effect that he would not have supported the prosecution case. Guidance is sought from the case laws titled as "Muhammad Rafique and others v. The State end others" (2010 SCMR 385 ) and "L al Khan v . The-State" (2006 SCMR 1846 ).
9. We have also noticed that, in the FIR general role of inflicting fire shots was attributed to the accused persons whereas in the private complaint which was filed with the delay of fourteen months, specific roles have been assigned to all the accused persons. In this way, the prosecution has made dishonest improvements in this case. It is cordial principle of law that any statement improved during trial is not worth relying, which is also deprecated by the principle enunciated in two salutary judgments. In the dictum of law laid down by august Supreme Court of Pakistan in the case of "Saeed Ahmed Shah vs. The State" (1993 SCMR 550), it has been held that the statement of any witness improved at trial is not worth relying rather such improvement creates serious doubt about its veracity and credibility . Similar view was held in another case reported as "Muhammad Rqfique and others us. The State and others" (2010 SCMR 385 ).
10. Motive behind the occurrence was that the complainant along with his father went to irrigate their Jawar crop at noon time on the day of occurrence and cattle of Muhammad Yousaf were damaging the crop of complainant party .
When the complainant party complaint in this respect, Muhammad Yousaf started abusing and quarreling with them and due to this grudge the accused party has committed the occurrence. The prosecution has failed to prove the episode, of motive part through oral or documentary evidence. It is well established principle of law that once the motive is established by the prosecution, then it has to be proved by the same, otherwise, adverse inference would be drawn, therefore, we are of the view that the motive, as alleged by the prosecution, has not been proved in this case. Although the prosecution is not under obligation to establish a motive in every murder case but it is also well settled principle of criminal jurisprudence that if prosecution set-up a motive and fails to prove it, then, it is the prosecution who has to suffer and not the accused. We very respectfully rely upon the case law titled as "Noor Muhammad v . The State and another" (2010 SCMR 97 ).
11. As far as the alleged recovery of pistol (P1) at the instance of Muhammad Mansha (appellant), is concerned, the same is inconsequential because report of PFSA qua the pistol (P1) is only to the extent of mechanical operating condition, as no crime empty was sent for the comparison, for the reason the same has no value in the eye of law. Reliance is placed upon the case law titled as "Akbar All and ethers versus The State and others" (2021 SCMR 104 ).
12. Resume of the above discussion is that the prosecution has failed to prove its case against the appellant, therefore, we accept appeal filed by Muhammad Mansha, appellant, set aside his convictions and sentences recorded by the learned trial Court and acquit him of the charges by extending him the benefit of doubt. The appellant is in jail, he be released from the jail forthwith if not required in any other case and Murder Reference is answered in the NEGA TIVE and the sentence of death of. Muhammad Mansha, appellant is NOT CONFIRMED.
13. As a natural corollary , P.S.L.A filed by Abid Hussain complainant (PW1) against acquittal of co-accused Muhammad Arshad, Muhammad Yousaf, Muhammad Khaliq, Wages alias Pup and Fayyaz having no merits is dismissed.