MUHAMMAD TARIQ NADEEM, J.---Jafar, Abdul Shakoor, Mumtaz alias Rindoo and Mohsin, appellants along with their co-accused Mushtaq alias Kalu, Rustam, Muhammad Hussain, Safdar, Muhammad Hussain, Muhammad Afzaal, Haq Nawaz, Muhammad Akram, Mukhtar Hussain, Ghulam Abbas, Mumtaz son of Ghulam Muhammad, Ameer, Allah Ditta and Ghazanfar were tried by the learned trial court in private complaint under sections 302, 109, 148, 149, P.P.C., emanating as a result of a dishonest investigation by police in a case FIR No. 15 dated 19-01-2013 under the same offences registered at Police Station Garh Maharaja and after conclusion of trial vide judgment dated 26-04-2017 while acquitting rest of the accused, convicted and sentenced them as under:- Appellant, Jaffar Under section 302(b), P.P.C.
DEATH as Tazir for the murder of Muhammad Ramzan alias, Malang along with compensation of Rs.
2,00,000/-to the legal heirs of deceased under section 544-A, Cr.P.C. and in default thereof to further undergo 06 months' S.I.
Appellant, Abdul Shakoor Under section 302(b), P.P.C.
DEATH as Tazir for the murder of Nasir along with compensation of Rs. 2,00,000/- to the legal heirs of deceased under section 544-A, Cr.P.C. and in default thereof to further undergo 06 months' S.I.
Appellant, Mumtaz alias Rindoo Under section 302(b), P.P.C.
DEATH as Tazir for the murder of Zafar along with compensation of Rs. 2,00,000/- to the legal heirs of deceased under section 544-A, Cr.P.C. and in default thereof to further undergo 06 months' S.I.
Appellant, Mohsin Under sections 302(b), 109, 148, 149 P.P.C.
Life imprisonment along with compensation of Rs. 2,00,000/- to the legal heirs of deceased under section 544-A, Cr.P.C. and in default thereof to further undergo 06 months' S.I. Benefit of section 382-B, Cr.P.C. was also extended in his favour.
Appellants have filed their respective titled appeals against their convictions and sentences, whereas the learned trial court has sent Murder Reference for confirmation of death sentences to Jafar, Mumtaz alias Rindoo and Abdul. Shakoor, appellants or otherwise, which are being decided through this single judgment.
2. The facts of the case have been stated by Abid Ali, complainant (PW13) in his private before the learned trial Court, which are reproduced as under:- "On 19.01.2013 Zafar, Malang and Nasir had to come to Ahmad Pur Sial courts in connection with their date of hearing in a murder case. Accordingly, they departed and thereafter we including myself, Nasir son of Allah Ditta and Jabar Ali (guest) also departed behind them as we had to meet the accused of that murder case. We departed at about 06:00 a.m. from our house and reached at Adda Mehmood Shah. As we as well as Zafar etc. could not find any transport/conveyance there, hence, Zafar etc. and we started on feet towards Garh Maharaja. They (Zafar etc.) were ahead of us. At about 07:00 a.m. we reached at Adda Mian Jalal Mauza Inayat Shah. Ten persons including Mushtaq armed with rifle, Rustam armed with rifle, Jafar armed with repeater, Mumtaz Hussain son of Kambeer armed with Kalashnikov, Mohsin armed with repeater, Muhammad Hussain son of Khadim armed with repeater, Safdar armed with rifle, Shakoor armed with rifle, Afzal armed with repeater, Muhammad Hussain son of Haq Nawaz armed with rifle came there and raised lalkara to Malang, Zafar and Nasir by saying that they be taught lesson for the murder of Mehram Ali and for being declared as innocent. Accused Mushtaq fired at Malang which seated him on right side of his chest. Accused Rustam while armed with rifle also fired at Malang, which landed on right side of his chest. Accused Jafar fired with his repeater which seated on right clavical bone of Ramzan alias Malang. Accused Mushtaq alias Kalu made two fires which seated just below the right nipple of Ramzan alias Malang. The above stated three accused resorted to indiscriminate firing at Ramzan alias Malang which hit on the different parts of his body. Mumtaz alias Rindu made fire with his Kalashnikov which hit on the right side of chest of Zafar and again stated that it seated on the left side of his chest. Accused Mohsin son of Kambeer fire at Zafar which seated on the left side just below his ribs. Accused Mohsin then fired at Zafar which seated on right side of his clavical bone.
Accused Muhammad Hussain son of Khadim Hussain fired at Zafar which seated on clavicle bone towards his right side. Accused Mumtaz alias Rindu made two fires at Zafar which seated on right side of his chest. Then the above said three accused persons resorted to indiscriminate firing at Zafar which seated on the different parts of the body. Accused Shakoor made fire at Nasir which hit him on the right side of his chest. Accused Safdar made fire at Nasir which seated on the right side of his chest. Accused Muhammad Hussain son of Haq Nawaz fired at Nasir which landed on right side of his chest. Accused Afzal armed with repeater fired at Nasir which seated on right side of his back. Accused Shakoor made two fires at Nasir which seated on upper portion of his back. The above said four accused persons then resorted to indiscriminate firing which seated on the different parts of the body of Nasir. We tried to go nearer to the injured but the accused persons pointed their respective weapons towards us and stated that they would also kill us if we dare to come closer. The accused decamped from the place of occurrence. We attended the injured persons who succumbed to their injuries at the spot. The motive behind the occurrence was that the accused were nurturing grudge of the murder of Mehram Ali who was relative of the accused persons.
Two days prior to the occurrence, accused Mushtaq alias Kalu, Jafar, Rustam, Mumtaz alias Rindhu, Mohsin, Muhammad Hussain son of Khadim Hussain, Safdar, Muhammad Hussain son of Haq Nawaz, Muhammad Akram, Mukhtar Hussain son of Khadim Hussain, Ghulam Abbas, Mumtaz son of Ghulam Muhammad, Ameer, Allah Ditta and Ghazanfar were sitting at the Dhari of accused Ghazanfar. Out of them Haq Nawaz, Mumtaz son of Ghulam Muhammad, Ameer Ghulam Abas, Allah Ditta were saying that as Zafar, Malang and Nasir had killed Mehram Ali and police declared them as innocent, therefore, they wanted result of their act by taking revenge of the murder of Mehram Ali within 2/3 days. The remaining ten accused persons were saying that the result would be given within two days by killing the said three persons.
The police then came at the spot and I was just dictating the application and the same was accordingly got written which was presented to the police. The application is Ex.PP The police made dishonest investigation and let free some of the accused and only challaned four persons out of the 18 accused persons. Therefore, I had to file the complaint which is Ex.PQ."
3. Contentions heard and record examined.
4. It has straightaway been observed by us that according to the prosecution story on the fateful day i.e. 19-01-2013, accused Mushtaq Ahmad alias Kalo armed with rifle, Jaffar armed with repeater and Rustam armed with rifle made collective firing with their respective weapons on the body of Muhammad Ramzan (deceased) which landed on his chest, right side of his chest, right arm, right armpit, right flank, on the right side of neck and on backside of left shoulder. Similarly, role attributed to the accused Mumtaz alias Rindu, Mohsin and Safdar is that they also made collective firing on the body of Zafar (deceased) who sustained injuries on the left side of belly below the ribs, near left and right armpits, on left arm, below the neck near the throat, left arm and back. Similarly, accused Muhammad Hussain son of Khadim and Muhammad Hussain son of Haq Nawaz, Shakoor and Afzal made collective firing with their respective weapons on the body of Nasir Ali (since deceased), fire shots landed in front of his belly, chest, left thigh and waist. All the accused persons also made firing on the body of the injured persons when they fell down on the ground. It is pertinent to mention here that accused Mushtaq, Safdar, Muhammad Hussain son of Khadim, Muhammad Hussain son of Haq Nawaz and Afzal to whom effective roles in the occurrence were attributed, have been acquitted of the charge through the impugned judgment on the same set of evidence.
Their role is also identical with that of the appellants. Likewise, other co-accused to whom role of abetment was assigned have also been acquitted of the charge. Another interesting part of the case is that all the co-denounced aside from the appellants were announced blameless over the span of examination. It is a prosaic rule of law and equity that once arraignment witnesses are doubted concerning a co-blamed then, at that point, they can't be depended upon with respect to the next co-charged until and except if it is upheld by any free verifying piece of proof, which is prominently absent in the moment case. Reliance is placed upon the case laws titled as "Nazir Ahmad v. The State" (2018 SCMR 787) "Haroon Shafique v. The State and others" (2018 SCMR 2118) and "Shahbaz v. The State" (2016 SCMR 1763).
5. We have additionally noted that according to the contents of the FIR, the complainant and PWs have assigned collective role of firing to all the accused persons but in private complaint and while appearing before the learned trial court, they improved their earlier stance by assigning the specific role of firing to each of the accused persons upon the body of the deceased persons. The deposition of the eye-witnesses, who were most important witnesses of the prosecution came up with deliberate improvements makes the prosecution case doubtful. In this way, we observe that when it is concluded that any witness makes deliberate improvements with mala fide intention, the testimony of such witness cannot be relied upon. Reliance in this respect can safely be placed on the esteemed judgment passed by Hon'ble Supreme Court of Pakistan in case titled Muhammad Pervaiz and others v. The State and others (2007 SCMR 670) wherein Para No.6 of the judgment, it is observed as under:-
4. It is pertinent to mention here that statement of eye-witnesses were not in consonance with each other. There are material contradictions and improvements in their statements which were not noted by the learned Federal Shariat Court in its true perspective. It is settled law that the person making contradiction and improvements cannot be held worthy of credence. See Muhammad Shafique Ahmad case (PLD 1981 SC 472); Roshan's case (PLD 1977 SC 557) and Shabaz Khan Jakhrani's case (1984 SCMR 42)..."
6. Another fact which cannot be lost sight of, is that according to the site plan (Ex.PA) Muhammad Ramzan alias Malang (since deceased) received fire shot injuries from a distance of 05 karams; Zafar Ali (since deceased) received firearm injuries from a distance of 06 karams. Nasir Ali (since deceased) received fire shots from a distance of 8 karams, yet the medical evidence belies the prosecution version. Doctor Shahzad Anwar Hashmi, SMO, RHC Garh Maharaja, District Jhang, who had conducted the post-mortem examination on the dead body of the above-said deceased persons, while appearing as (PW.12) noted blackening on the injuries sustained by the deceased persons. According to the medical jurisprudence, the blackening occurs when a shot is fired from a distance of 6 to 12 inches and vanishes if the distance is more than three feet. Thus, the medical evidence being in direct conflict with the ocular evidence, in our view, it was also not safe to rely on the statements of the eye-witnesses, in the peculiar circumstances of the instant case. We fortify our view from the dictum laid down in case titled as "Muhammad Ishaq v. The State" (2007 SCMR 108) wherein, the Hon'ble Supreme Court of Pakistan has held as under:- "Reappraisal of evidence---Previous enmity---Conflict between ocular and medical evidence--- Effect---Trial court convicted accused/appellant under Ss. 302 & 324, P. P. C. and sentence him to life imprisonment---High Court on appeal upheld the finding of Trial Court---Validity--- Prosecution .filed to explain delay in lodging FIR---Complainant allegedly witnessed the murder of his real brother but in spite of that he did not go to police to promptly lodge FIR---Enmity between accused and complainant including eye-witnesses having been proved the ocular testimony of complainant side required strong support from unimpeachable source of evidence---Prosecution sought corroboration from motive but in presence of proved enmity between the parties, motive was to cut both ways and was to be equally a motive for false charge---Gun recovered from possession of accused was not to be taken as a corroborative evidence as the same was licensed one and moreover, gun did not match with all the four empties allegedly recovered from place where accused fired at the deceased---Site plan showed that deceased was fired at from a distance of 132 feet but there was burning on all four inlet wounds of deceased---Burning on wounds was to occur when muzzle was at a distance of 5 to 6 feet from victim; and burning from a distance of 132 feet was not possible---Nature of injuries caused to deceased believed the prosecution version as to distance from which deceased was fired at---Neither any pellets were recovered from premises (mosque) nor any child receiving lesson from complainant was ever examined---Accused was acquitted in circumstances."
Last but not the least, the Hon'ble Supreme Court of Pakistan has also expressed almost similar view in the case of Amin Ali and another v. The State (2011 SCMR 323).
7. A perusal of charge shows that the trial court framed the charge to the extent of appellants Jafar, Abdul Shakoor and Mumtaz alias Rindoo not only under section 302, P.P.C. but also for offences under sections 148, 149, 109, P.P.C. The judgment of the trial court reveals that the supra mentioned appellants were convicted under section 302(b), P.P.C. only. The learned trial court did not record the conviction and sentence under sections 148, 149, 109, P.P.C. against the said appellants. It is the duty of the learned trial court to record the findings with reasons in respect of each offence charged in relation to each of accused persons and to follow it with an operative order of conviction or acquittal as the case may be. In the present case, the trial court did not record the findings of conviction or acquittal in respect of offences under sections 148, 149, 109, P.P.C., as such, the trial court had failed to perform its legal duty. However, non-recording of conviction under sections 148, 149, 109, P.P.C. implied acquittal of the appellants Jafar, Abdul Shakoor and Mumtaz alias Rindoo from the charges mentioned above. A reference in this context may be made to the cases of "Karl John Joseph and another v. The State" (PLD 2005 Karachi 4) and "Shera and 6 others v. The Crown" (PLD 1954 FC 141).
8. After taking the ocular and medical evidence out of consideration, we are left with the evidence of recoveries only, which being purely corroboratory in nature. In our view, is not capable to bring home the charge against the appellants in the absence of any direct evidence because it is well settled that unless direct or substantive evidence is brought on record, conviction cannot be recorded on the basis of any type of evidence howsoever convincing it may be. Reliance is placed upon the case of Muhammad Jamil v. Muhammad Akram and others (2009 SCMR 12); wherein it was held as under:- "----S. 302(b)---Appreciation of evidence--Principle---In a case of direct evidence other pieces of evidence are used for corroboration or in support of direct evidence----When direct evidence is disbelieved, then it would not be safe to base conviction on corroborative or confirmatory evidence."
9. For the facts and reasons mentioned above, we are satisfied that the occurrence in the instant case has not taken place in the mode and manner as suggested by the prosecution. Prosecution has miserably failed to produce confirmatory evidence in this regard. In this case, there is a room for doubt, benefit whereof must go to the appellants. It is well established principle of law that to extend benefit of doubt, it is not necessary that there should be so many circumstances, if there is a single circumstance, creating reasonable doubt regarding the prosecution case that is sufficient to give benefit to the accused, whereas, the instant case as discussed in the preceding paras, is replete with circumstances which have created serious doubts about the prosecution case.
Reliance is placed on the case of "Muhammad Akram v. The State" (2009 SCMR 230) and "Muhammad Mansha v. The State" ( 2018 SCMR 772).
10. For what has been discussed above, we are of the considered view that the prosecution has failed to prove its case against the appellants beyond any shadow of doubt, therefore, we accept instant appeals filed by the appellants Jafar, Abdul Shakoor, Mumtaz alias Rindoo and Mohsin, set aside their convictions and sentences and acquit them of all the charges by extending them the benefit of doubt. The appellants Jafar, Abdul Shakoor and Mumtaz alias Rindoo are in jail, they be released from the jail forthwith if not required in any other case. Mohsin, appellant is on bail by way of suspension of his sentence, his surety stands discharged. Murder Reference is answered in the NEGATIVE and the sentence of death of Jafar, Mumtaz alias Rindoo and Abdul Shakoor, appellants are NOT CONFIRMED.