ASJAD JAVAID GHURAL, J. Through the titled criminal appeal in terms of Section 410 of Code of Criminal Procedure, 1898 appellant Muhammad Imran has challenged the vires of judgment dated 29.02.2012 passed by the learned Additional Sessions Judge, Multan in case FIR No.357/2010 dated 12.09.2010, in respect of offence under Sections 302 and 34 of Pakistan Penal Code, 1860 registered at Police Station, Basti Malook, District Multan whereby he was convicted and sentenced as under:- Under Section 302(b), P.P.C.
Imprisonment for life and to pay an amount of Rs.100,000/- as compensation to the legal heirs of the deceased Muhammad Ishaq under section 544-A, Cr.P.C. and in default thereof, to further undergo simple imprisonment for six months.
He was held entitled to the benefit of Section 382-B, Cr.P.C.
2. The prosecution story unfolded in the crime report (Exh.PF/1) registered on the complaint of complainant Muhammad Irfan is that on 12.09.2010 at about 08:30 p.m. he along with his brother Muhammad lshfaq was present at Billiard shop where a "Panchayat" had been convened between Ishfaq etc. group and Muhammad Imran (appellant) and Khalid Hussain for effecting compromise/patch up of differences where hot words were exchanged between the two groups. In the meanwhile, Muhammad Imran snatched pistol 30-bore from Muhammad Ishfaq, who was an absconder. Khalid Hussain raised a Lalkara that a lesson be taught to Muhammad Ishaque (deceased) for supporting Ishfaq etc. whereupon Muhammad Imran made a straight fire shot with pistol 30-bore; which landed at the front of neck of Ishaque, who fell down. On raising hue and cry and hearing the noise of fire shot, Muhammad Hussain (PW-7) and Bashir Ahmad (PW-8) came there and tried to save Muhammad Ishaque but the accused persons, while intimidating them that whosever dared to come forward, would be done to death and fled away along with their respective fire arm weapons. They attended Muhammad Ishaq, who had succumbed to the injuries at the spot.
Motive behind the occurrence was that Muhammad Ishaq was supporting Muhammad Ishfaq etc. and due to this revenge, the accused persons, with their common intention, committed murder of Muhammad Ishaq, brother of the complainant.
3. The case was registered on 12.09.2010 at 09:45 p.m., and in consequence thereof, Nazim Ali, S.I.
(PW-9) visited the place of occurrence, took all the necessary steps of investigation and recorded statements of the witnesses under Section 161, Cr.P.C. He arrested the appellant on 21.10.2010, who during investigation led to the recovery of pistol (P-6) on 02.11.2010. He arrested co-accused Khalid on 09.11.2010 and after completion of investigation, he got prepared report under Section 173, Cr.P.C.
4. Dr. Habib-ur-Rehman (PW-1) conducted postmortem examination on the dead body of deceased Ishaq and observed two ante-mortem fire arm injuries on his neck including one exit wound. The cause of death was injury to major blood vessels and vital organ leading to shock and death. The probable duration between injuries and death was immediate whereas between death and post mortem examination, it was 12-24 hours.
5. At the commencement of trial, the prosecution produced nine witnesses besides the report of Chemical Examiner (Ex.PM) and that of the Serologist (Ex.PN). The appellant and his co-accused Khalid Hussain, in their statements recorded under Section 342, Cr.P.C., had denied and controverted all the allegations of fact leveled against them.
They opted not to make statement under Section 340(2), Cr.P.C., and produced two witnesses Mudasar Zia (Incharge, Control Room Rescue-1122) and Dr. Muamber Hussain as (DW-1 AND DW-2) in their defence.
6. Learned trial Court, upon conclusion of the trial, acquitted co-accused Khalid, whereas, convicted and sentenced the appellant in the above terms vide impugned judgment dated 29.02.2012. Hence, this criminal appeal.
7. Learned counsel for the appellant submits that the appellant is quite innocent and has been falsely implicated in this case; that it was a case of no evidence against the appellant inasmuch as the complainant of the alleged occurrence did not turn up to depose against the appellant, whereas, rest of the witnesses of ocular account were not eye-witnesses of the occurrence; that Muhammad Hussain (PW-7) improved his statement on material aspects of the case before the trial Court; that in a Panchayat, which was convened to settle the differences between Daya and Thaheem families, Ishfaq aimed his pistol at the appellant in order to kill him but the appellant caught hold the pistol from barrel side and when uncle of said Ishfaq tried to snatch the pistol, the same accidentally, went off during grappling, hitting the appellant at his neck through and through and re-entered at the front of neck of deceased Ishaque, who fell down and died at the spot; that there was no previous enmity between the appellant and the deceased; that the appellant tried to hold the pistol in order to save his own life, which accidently hit the deceased; that the prosecution has failed to bring home guilt of the appellant beyond shadow of reasonable doubt. In the end, he has prayed for acquittal of the appellant.
8. Contrarily, learned Law Officer appearing for the State submits that the prosecution has successfully proved the charge against the appellant beyond the shadow of reasonable doubt; that ocular account is inconsistent with the medical evidence; that the appellant himself has admitted the occurrence in his statement under section 342, Cr.P.C. though with different mode and manner of the occurrence yet it did not find support from any independent source of the evidence; that there was no occasion for the prosecution to falsely involve the appellant while letting off real culprit. He finally prayed for dismissal of this appeal.
9. I have heard learned counsel for the appellant, learned Deputy Prosecutor General appearing for the State and perused the record with their able assistance.
10. This case was registered against the appellant and another at the instance of complainant Muhammad Irfan, who has since been settled abroad in Saudi Arabia soon after the incident and did not turn up for recording his statement in support of prosecution case. The only evidence available with the prosecution was the statement of Muhammad Hussain, (PW-7) and Bashir Ahmad, (PW-8), both acclaimed eye-witnesses of the incident.
11. Muhammad Hussain, (PW-7) while appearing in the dock in the court room deposed that on 12.09.2010 at about 08/08.30 p.m., he along with Bashir and Irfan PWs, was present in Panchyat in order to settled the differences between Qasai and Daya families. During Panchyat a quarrel took place between them. Ishfaq attracted at the spot and tried to separate them. At the instigation of co-accused Khalid (since acquitted) the appellant snatched pistol from Ishfaq and made a fire shot at Ishaque, which landed at his neck and succumbed to the injuries at the spot. It is evincing from the record that this witness in order to bring home the guilt of the appellant made dishonest improvements in his statement deposing that "we were present in Punchait convened between Qasai family and Daya family. Confronted with Ex.DA where it was not so recorded. I got recorded in Ex.DA that Imran accused snatched pistol from one Ishfaq. Confronted with Ex.D.A wherein it is not so recorded. I got recorded in Ex.DA that Imran accused made fire in my presence. Confronted with Ex.DA wherein it is not so recorded:" It goes without saying that the said important witness made dishonest improvements in his deposition before the learned trial Court material particulars of the incident, which were duly confronted to him during cross-examination. It is well settled principle of criminal administration of justice that once a witness proves to have made material improvements, his testimony cannot be relied upon. Reliance in this regard is placed on case reported as `Akhtar Ali v. The State' (2008 SCMR 06) wherein it has been laid down 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."
Similarly, in case reported as 'Sardar Bibi and another v. Munir Ahmad and others' (2017 SCMR 344), it has been held that dishonest improvements and omission made by a witness render him unreliable and not worth of credence. The testimony of said acclaimed eye witness is nothing but a bunch of lies and the same is straightway brushed aside.
12. Bashir Ahmad, (PW-8), while appearing in the dock in the court room deposed that on the fateful day, on hearing voice of fire, he attracted at the spot and saw Ishaque lying in injured condition, whereas, the appellant and his co-accused decamped from the spot. From the very testimony of said witness it is abundantly, clear that he reached at the place of occurrence on hearing the noise of fire shot when the occurrence was already over and as such, he was not in a position to state what happened at the time of alleged occurrence. The testimony of said witness cannot be safely relied upon against the appellant.
11 (sic) Dr. Habib-ur-Rehman, (PW-1) held autopsy on the dead body of deceased Ishaque on 12.09.2010 and observed two ante-mortem fire arm injuries on his neck including an exit wound. The cause of death was injury to major blood vessels and vital organ leading to shock and death. The probable duration between injuries and death was immediate whereas between death and post mortem examination, 12-24 hours. The inordinate delay in conducting the postmortem examination of dead body is of the real possibility that the time had been consumed by the prosecution for maneuvering and concocting the prosecution story and manage the eye- witnesses against the appellant. A reference may also be made to cases titled "Muhammad Ilyas v. Muhammad Abid alias Billa and others (2014 SCMR 1698), "Faqeer Muhammad v. Shahbaz Ali and others" (2016 SCMR 1441) and "Muhammad Ilyas v. Muhammad Abid alias Billa and others"
(2017 SCMR 54) wherein it has been held as under:- "Post-mortem Examination of the dead body of Muhammad Shahbaz deceased had been conducted after nine hours of the incident which again was a factor pointing towards a possibility that time had been consumed by the local police and the complainant party in procuring and planting eye-witnesses and cooking up a story for the prosecution."
12. (sic) The recovery of weapon of offence pistol (P-6) from the appellant has already been discarded by the learned trial Court being inconsequential.
13. Appellant Muhammad Imran in his examination under Section 342, Cr.P.C in response to the question as to why was registered against him and why the PWs deposed against him, he replied as under:- "One/two days prior to the occurrence one Fiaz Daya insulted my mother and on this, respectable of the locality called a Punchiat for effecting compromise between Daya family and Taheem Family at Chowk Billi Wala on 12.09.2010 at Eshah Waila. I alongwith my parents and brothers Amir, Khalid and Sajid reached at Chowk Billi Wala to attend said Punchiat. Daya family was also present there. Punchiat asked to Fiaz Daya to make apology from my mother but he abused her. I alongwith my brothers Khalid and Amir caught hold of Fin. Daya whereas I only slapped him. The brother of Fiaz namely Ishfaq who is involved in so many criminal cases like attempt to commit murder, having illicit arms and terrorism etc. put out his pistol and aimed to me for the purpose of committing murder. On which I caught the pistol from barrel side. Ashiq, the uncle of said Ishfaq tried to snatch pistol from us, which was accidentally fired during grappling, which hit to Ishaq who was standing to my back side after causing injury on my neck and crossing from my collar of Kameez. Pistol fell down on the ground due to fire I also fell on the ground due to said injury and I was also shifted to Nishtar Hospital, Multan by 1122 rescue in injured condition. We have no any enmity with the deceased Ishaq.
PW Muhammad Hussain deposed against me falsely being close relative of deceased and he is a greedy person and made demand of money while complainant is not interested to pursue this case as he did not appear in the court to depose against us because he had come to know that we are innocent and have committed no offence and remaining PWs are police officials who deposed against us just to save their job while no one from the locality has come forward to depose against us."
13(sic) The appellant produced Mudassar Zia, Incharge Control Room Rescue 1122 in his defence evidence as (DW-1), who deposed that, on 12.09.2010 at about 10:11 p.m. Tousif Ahmad, Operator received information regarding the incident and vehicle No.MA-08 driven by Abdul Rehman, Driver along with Mushtaq Ahmad and Sohail Ahmad, both EMT reached at the place of occurrence. They shifted appellant Imran while in injured condition to Nishtar Hospital, Multan.
Dr. Muamber Hussain, SMO, who examined the appellant while in injured condition appeared as (DW-2) and deposed that on 12.09.2010 he examined appellant and observed following injuries:-
(i) 8cm X 4cm area of blackening of lateral side of the right side of the neck;
(ii) 2cm X 2cm abrasion area on the right side of neck."
14. Nazim Ali, -SI, (PW-9)/ Investigating Officer, who conducted the investigation in this case, while appearing in the dock in the court room, in cross-examination deposed that " Imran and Khalid accused had come at the spot empty handed as per my findings. It is correct that according to my findings Fiaz brother of said Ishfaq had abused to mother of Imran accused. On this a scuffle took place between Imran and said Fiaz. During this scuffle said Ishfaq put out pistol and tried to make fire at Imran. It is correct that scuffle took place between Imran accused and said Ishfaq. It is correct. that one Ashique relative of Ishfaq had tried to separate them......... It is correct that there is no previous enmity between the complainant party and accused party. It is correct that complainant party did not help the opposite party of the accused at the time of Incident. It is correct that there was a fire arm injury on the neck of Imran accused." He further goes on the state that "It is correct that the fire was hit to lshaq incidentally during scuffle."
15. It is well settled law that when the prosecution evidence is discarded, the statement of an accused is to be considered in its entirety and accepted as a fact. Reliance is placed on case reported as Mehrban Shah v. The State (1969 SCMR 839), wherein it has been laid down as under- "It was not open to the learned Judges, after having rejected the prosecution evidence as unreliable, to dissect the accused's statement and accept it in part and reject the rest of it in these circumstances."
Here in the present case, it was the stance of the appellant that in a Panchayat, which had been convened to settle the differences between Daya and Thaheem families, an altercation took place when one of Fiaz Daya hurled abuses to the mother of the appellant, which infuriated him who slapped Fiaz Daya and brother of said Fiaz namely, Ishfaq aimed pistol at the appellant and due to intervention of other members fire went off from the pistol of Ishfaq, which hit the deceased after causing injury at the neck of the appellant. The injuries on the person of the appellant, stood substantiated by deposition of the Medical Officer (DW-2) and the definite conclusion of the Investigating Officer that fire was hit to Ishaque accidentally during scuffle, provides full corroboration to the defence of the appellant. It is an admitted fact that appellant arrived at Panchayat empty-handed. Admittedly, there was no premeditation, no animus or motive to kill the deceased. In case reported as Malik Warris Khan and another v. Ishtiaq alias Naga and others (PLD 1986 SC 335), it has been laid down as under:- " In the case before us there was no score to be settled, no dispute to be resolved, no preparation and anticipation. It was a sudden dispute. The prosecution evidence stood rejected. The plea of the accused was clear and consistent and was found not inconsistent with facts found proved on record.
In the circumstances and for reasons given, the appeal filed by the complainant fails and is dismissed, that of the convicts is allowed and his conviction and sentence 304, Part I is set-aside."
(emphasis supplied)
16. After discarding the prosecution evidence from consideration and giving due effect to the facts explained by the accused in his statement under section 342, Cr.P.C., I am of the considered view that no offence under the law is made out against the appellant. The unfortunate incident took place, during a scuffle when one Muhammad Ishfaq aimed his pistol upon the appellant, who in order to save his life, caught hold said pistol from its barrel side and due to intervention of some other person, fire went off accidentally, which firstly hit at his neck and then the deceased, both fell down. In the attending circumstances, I am not persuaded to concur with the conclusion arrived at by the Trial Court qua conviction and sentence of the appellant.
17. In view of what has been discussed above, the appeal in hand is allowed the conviction and sentence of appellant Muhammad Imran are set aside and he is acquitted of the charge by extending the benefit of doubt to him. He is on bail, his bail bonds and surety stands discharged from the liability.