Farrukh Gulzar Awan, J.--This judgment shall dispose of Criminal Appeal No. 647 of 2010 filed by Zawar , Iftikhar and Nawaz convicts/appellants, who were convicted and sentenced by the learned Additional Sessions Judge, Sahiwal in Private Complaint titled "Nawab Bibi vs. Mnjahid etc."' Bearing No. 36/ASJ-Sahiwal of 2008 under Sections 302/148/149/ 109/201 of the Pakistan Penal Code, (Act XL V of 1860).
Appellants Zawar and lftikhar were sentenced as under: Under Section 302-B, PPC Death and to pay compensation of Rs. 200,000/- to the legal heirs of the deceased Qasim Ali under Section 544-A, Cr.P.C. and in default thereof to further undergo simple imprisonment for six months.
Each of the appellants Zawar , Iftikhar and Nawaz was also sentenced as under: Under Section 201, PPC Rigorous imprisonment for two years and to pay the fine of Rs. 10.000/-cach and in default thereof to further undergo simple imprisonment far six months.
Murder Reference No. 145 of 2010 for confirmation or otherwise of death sentence of appellants Zawar and Iftikhar shall also be disposed of through this single judgment.
2. Succinctly , the facts of the case arc that the complainant filed aforesaid private complaint (Ex.PB) against the appellants and 7-others stating that on 27.6.2008 at about 5:00 p.m. she along with her brother Qasim (deceased) went to Adda Qutab Shahana through private bus, alighted from the bus, went towards their animals and when reached at a distance of about 2-acre from their Dera, all of a sudden Mujahid (since P.O.), Iftikhar and Zawar Hussain (appellants) while armed with pistols, came there and raised Lalkara to teach a lesspn to Qasim (deceased) for having illicit relation with their sister . Mujahid Hussain (since P.O.) pointed pistol on the temporal region of Qasim. Iftikhar (appellant) caught hold of hair of the complainant and Zawar Hussain (appellant) took them near the river where Muhammad Meal (co-accused), Muhammad Nawaz (appellant) and Shahadat (since P.O.) while armed with fire-arms also came. Muhammad Afzal put his foot on the chest of Muhammad Qasim (deceased) by falling him on the ground. Iftikhar (appellant) caught hold of Qasim (deceased) from his head.
Mujahid (since P.O.) and Zawar Hussain appellant fired with their respective pistols. Fire shot of Zawar Hussain (appellant) hit on the chest of Qasim (deceased) while fire shot of Mujahid missed. On report of firing, Hamayun and Waryam came there. Then Shahadat Ali fired, which hit on the chest of Qasim and went through and through.
Mujahid fired which hit on right side of temporal region and fire shot of Iftikhar hit on the neck of Qasim. Qasim succumbed to the injuries at the spot. All the Accused took out an amount of Rs. 18000/- and a mobile phone from the pocket of Qasim deceased and threw his dead body into the river Ravi. Roga rding the occurrence, case FIR No. 355 of 2008 was lodged by Mst. Nawab Bibi complainant under Sections 302/148/149/109 of The Pakistan Penal Code, (Act XL V of 1860) at Police Station Noor Shah, District Sahiwal.
Motive behind the occurrence was that the accused had suspicion that Qasim deceased had illicit relation with Sahib Bibi, sister of Mujahid co-accused, who was murdered by the accused two years ago.
3. Due to rainy season, the dead body of Qasim deceased floated away and on recovery of dead body , police chalked out FIR (Ex.P A/1) on the complaint (Ex.P A) of the complainant. It was alleged that the police received bribe and did no investigate the matter on merit, which constrained the complainant to file private complaint (Ex.PB) in which the appellants along with their co-abused were summoned to face the trial after recording the cursory evidence.
4. After framing of charge, the complainant produced as many as five witnesses in order to prove its case.
5. Dr. Saeed Ahmad (PW-5) conducted post-mortem examination on the dead body of Qasim deceased and observed the following injuries: "INJURIES No. 1-A A lacerated wound 3.5 cm x 3 cm inverted edges and blackening of margins were present. This wound was present on the right temporal region of the head just above right ear .
No. 1-B A lacerated wound of exit 2 cm x 1.5 cm with everted edges was present on left temporal area of head just above left ear .
No. 2-A A lacerated wound with inverted edges 1 cm x 1 cm present was front left side of neck 3 cm from mid-line and 3.5 cm above medial end of left clavical surrounded by powder marks.
No. 2-B A lacerated wound everted edges 2 cm x I cm was present on back of left shoulder 5 cm below base of neck.
No. 3-B A lacerated wound inverted edges 1 cm x 1 cm deep going was present on front of left side of chest 7 cm below and inner to left nipple.
No. 3-A A lacerated wound 1.5 cm x 1 cm everted edges was present on back of left chest 22 cm below base of neck.
No. 4-A A lacerated wound 1 cm x 1 cm inverted edges deep going was present on front of left side of chest it cm below , and inner to left nipple.
Opinion was given as under: "All the injuries were ante-mortem caused by fire-arm weapon, Each of the injury was sufficient to cause death individually . The mode of death in this case Injury No. 1 woula be coma. In case of other injuries it would be haemorrhage and shock. "Time between injuries and death was within five minutes whereas between death and post-mortem was 24-hours."
Ex.PG is the carbon copy of post-mortem report and Ex.PG/1 & Ex.PG/2 are the pictorial diagram showing location of injuries.
6. Complainant gave up Maryam, Muha mmad Khalid and Shahbaz being unne cessary and after tendering in evidence the report of Chemical Examiner (Ex.PK), report of Serologist (Ex.PM), reports of Forensic Science Laboratory (Ex.PL and Ex.PN), certified copies of the FIRs (Ex.PO to Ex.PQ), closed its evidence.
7. All the official witnesses appeared as CW-1 to CW-12. The appellants were examined under Section 342, Cr.P.C.
The incriminating evidence produced by the prosecution was put to them, which they termed as incorrect and took the stance that it was an unseen occurrence and that Qasim (deceased) was murdered by some unknown persons.
8. The appellants neither opted to appear on oath as witness under Section 340(2) , Cr.P.C. nor produced evidence in their defence.
9. Learned trial Court, after hearing learned counsel for the parties and going; through the evidence on record, convicted the appellants and sentenced them supra whereas acquitted Nawab, Younis and Khan Muhammad co- accused. Co-accused Mujahid, Jan Muhammad and Shahadat were declared proclaimed offenders and their perpetual non-bailable warrants of arrest were issued.
10. Learned counsel for the appellants has contended that FIR (Ex.P A/1) was registered with the delay of 25-hours, which could be attributed to consultation, taking instructions and preparing report keeping in view the names of accused of their own choice and also names of eye-witnesses; that the complainant as well as eye-witness Hamayun (PW-2) made certain material improvements in their deposition as to the reporting of matter to the police, which goes into the very root of the case and casts serious doubt about their veracity; that post-mortem examination of the dead body of Qasim (deceased) was conducted with the delay of more than 24-hours, which is suggestive of the fact that a false story was cooked up by the prosecution in order to plant eye- witnesses and the accused of their own choice; that the presence of eye-witnesses Mst. Nawab Bibi (PW-1) and Hamayun (PW-2) being chance witnesses, who are resident of 7-kilometers away from the place of occurrence, at the spot has not been validly explained by them and as such casts serious doubt about their veracity; that there are lot of contradictions in the ocular account and the medical evidence; that motive has not been attributed to the appellants; that the prosecution witnesses are inter-se closely related to the deceased and as such their testimony is not worthy of credence; that during successive investigations conducted by Muhammad Arif, SI (CW-8) and Shaukat Sultan, Inspector (CW-11), all the appellants and Iftikhar and Nawaz were declared innocent respectively; that both the said witnesses were subjected to the ordeal of lengthy cross-examination but nothing favourable could be extracted by the complainant; that Shaukat Sultan Inspector (CW-11) admitted during cross-examination that one Muhammad Nawab son of Bahadur Ali got recorded his statement stating that he was called by the complainant party in order to trace the foot prints of real culprits, which shows that the eye-witnesses did not witness the occurrence; that two crime empties were recovered from the place of occurrence whereas according to FIR (Ex.P A/1) five shots were fired at by the accused and as such positive report of Ballistic Expert is not helpful to the prosecution; that the complainant has failed to prove her case beyond any shadow of doubt, therefore, the appellants are liable to 'be acquitted.
11. On the other hand, 'learned DPG assisted by learned counsel for the complainant contends that the appellants were nominated with the specific role of causing fire-arm injuries to the deceased; that the presence of eye- witnesses at the venue of occurrence has been well explained by the witnesses and their testimony cannot be discarded merely on the ground that they are resident of area, which is far from the place of occurrence; that the recovery of weapon of offence has been effected from Zawar appellant, which connect him with the commission of this occurrence; that medical evidence is in line with ocular account; that the eye-witnesses have fully implicated the appellants in the occurrence, who were subjected to the ordeal of lengthy cross-examination but nothing favourable could be extracted by the defence, who remained firm on all material aspects of the case; that the prosecution has successfully proved motive behind the occurrence; that the learned trial Court has rightly convicted the appellants and that the learned counsel for the appellants has failed to point out misreading or non-reading of the evidence on record, which is result of correct appreciation and evaluation and such is liable to be maintained.
12. We have heard the learned counsel for the appellants, learned DPG for the State assisted by learned counsel for the complainant and have also scanned the record.
13. The ocular account in this case has been furnished by Mst. Nawab Bibi (PW-1) and Hamayun (PW-2). Though the complainant deposed in line with her stance taken in her private complaint (Ex.PB), which was supported by Hamayun (PW-2) but we have observed certain improvements in respect of the role attributed to Zawar Hussain (appellant). In complaint (Ex.PB), Zawar Hussain (appellant) has been attributed the role of firing with his pistol, which, hit Qnsim (deceased) on his chest while the fire shot of his co-accused Mujahid Hussain (since P.O.) got missed. Same was the case in her depos ition recorded before the learned trial Court but in FIR (Ex.P A/1), there is no mention of one fire shot being missed . She made an abortive attempt to fill up the said lacuna in order to bring ocular account in line with the medical evidence, which casts serious doubt about her veracity . She also made material improvement in her statement recorded before the learned trial Court, though in her statements before the I.O. (Ex.DB) and (Ex.DC), she did not mention the names of the appellants being assailants. Hamayun (PW-2), the other eyewitness, also made material improvements in respect of his statement (Ex.DE) made by him during investigation wherein he stated that it was dark and he reached at the place of occurrence on hearing noise of firing and saw the accused running from the place of occurrence. Muhammad Arif, SI (CW-8) stated during cross- examination that he correctly recorded the said statements (Ex.DB), (Ex.DC) and (Ex.DE) without any addition or omission on his part. The aforesaid contradictions made by the complainant and the other eye-witness could not be treated as ordinary but of course are very material. It is well settled proposition that when a witness improves his version, the improved statement made subsequently , cannot be relied upon. Therefore, the credibility of said witnesses has become highly doubtful. We have respectfully drawn guidance in this respect from cases titled "Akhtar All and others vs. The State (2008 SCMR 6)" and "Farman Ahmad vs. Muhammad Inayat and others (2007 SCMR 1825 )", wherein at page; No. 1829, it has been held as under: "it is also a settled maxim when witness improves his version to strengthen the prosecution case, his improved statement subsequently made cannot be relied upon as the witness had improved his statement dishonestly , therefore, his credibility becomes doubtful on the well-known principle of criminal jurisprudence that improvements once found deliberate and dishone cast serious doubt on the veracity of such witnesses."
14. Dr. Saeed Ahmad (PW-5) conducted post-mortem examination on the dead body of deceased and observed seven injuries. Injury No. 2-A on the neck of Qasim (deceased) has been attributed to Iftihar (appellant) and Injury No. 3-A on the chest of Qasim (deceased) has been attributed to Zawar (appellant). It was brought on record during cross-examination that there were four fire-arm entry wounds on the person of deceased and there was possibility of death of deceased due to Injury No. 1-A.
15. Medical evidence provides corroboration to the ocular account in order to know the seat and local of injury as well as nature of weapon of offence but cannot prove identity of assailant. Reliance is placed on "Abdul Majeed v.
Mulazim Hussain and others (PLD 2007 Supreme Court 637) and Ghulam Qadir and 2 others vs. The State (2008 SCMR 1221 ).
16. Recovery of pistol (P-7) through memo. (Ex.CW -3/C) from Zawar Hussain (appellant) in absence of report of its matching with the crime empties is inconsequential. Recovery of Rs. 2000/- from the same appellant would not provide corroboration to the case of complainant as no specific identification mark is available on the currency notes. Positive report of Ballistic Expert (Ex.PL) regarding working condition of the pistol (P-7) is also of no avail to the complainant. Recover of fire-arm weapon and other belongings of the deceased being corroborative piece of evidence, are not substantial piece of evidence for awarding conviction. Nothing was recovered from Iftikhar and Nawaz appellants and as such aforesaid allegation against them is not being corroborated by the said corroborative evidence.
17. Specific motive has been set up by the complainant in her complaint (Ex.PB) that the accused had suspicion that Qasim (deceased) had illicit relation with Sahib Bibi sister of Mujahid (co-accused), who was murdered by the accused two years ago.
When the ocular account as discussed above, does not inspire confidence to prove the guilt of the appellants, how the motive, even if taken as correct, would improve the case of prosecution in view of non-availability of convincing ocular account.
18. From the evidence on record, we are constrained to hold that the prosecution has failed to prove its case beyond shadow of doubt through cogent convincing, confidence-inspiring, unimpeachable and un-shattered evidence. The prosecution is bound to stand on its own legs to prove its case beyond any shadow of doubt and even if slightest doubt arises, benefit of the same must go to the accused and conviction of the appellant on the same evidence cannot be sustained.
19. Epitome of above discussion is that while extending benefit of doubt, setting aside the judgment of the conviction dated 12.5.12010, the appellants are hereby acquitted resulting in acceptance of their Criminal Appeal No. 647 of 2010. Appellants are in custody , they shall be set at liberty forthwith, if not required in any other case.
20. Death Sentence awarded to Zawar and Iftikhar appellants is NOT confirmed and Murder Reference No. 145 of 2010 is answered in negative.