SHAKIL AHMAD, J.---By filing Criminal Appeal No.53173-1 of 2017, appellants Yasir Parvaiz, Muhammad Imran and Mukhtar Ahmad whereas through Criminal Appeal No.53156-J of 2017 appellant Ansar have challenged their convictions and sentences. They were indicted and tried by learned Additional Sessions Judge, Bhalwal on the charge under Sections 302, 396, 412, P.P.C. in case FIR No.281 of 2013 dated 02.07.2013, registered at Police Station City Bhalwal, District Sargodha.
Learned trial court, on conclusion of trial vide judgment dated 13.04.2017 (impugned judgment) convicted the appellants and sentenced them as under:- Appellant Yasir Parvez "Convicted under Section 302(b), P. P. C. and sentenced to death with payment of Rs.5,00,000/- as compensation under section 544-A, Cr. P. C. to the legal heirs of deceased. In case of default in payment of compensation, to undergo six months simple imprisonment.
Appellants Ansar, Muhammad Imran and Mukhtar Ahmad "Each of them convicted under section 302(b), P.P.C. and sentenced to imprisonment for life R.I each with payment of Rs.2,00,000/- each as compensation under section 544-A, Cr.P.C. to the legal heirs of deceased. In case of default in payment of compensation, delinquent convict to undergo six months simple imprisonment".
All the appellants were convicted under section 396, P. P. C. and sentenced to R.I for ten years each.
All the appellants were convicted under section 412, P.P.C. and sentenced to R.I for seven years each.
Benefit of section 382-B of Cr.P.C. was given to all the appellants and sentences awarded to them were ordered to run concurrently.
Murder Reference No.253 of 2017 has been sent by learned trial court under section 374 Cr.P.C. for confirmation of death sentence awarded to appellant Yasir Parvez. Complainant Sadiq Ali has filed Criminal Revision No.183857 of 2018 seeking enhancement of sentence of appellants Ansar, Muhammad Imran and Mukhtar Ahmad. Since all the matters have originated from the impugned judgment dated 13.04.2017, the same are being decided through this single consolidated judgment.
2. Initially, machinery of criminal law was set into motion on written application Ex.P-U moved by Sadiq Ali complainant at Police Station City, Bhalwal on 02.07.2013 at 12:50 P.M, stating therein on the same day at about 12:00 P.M, he along with his brother Hashmat Ali after drawing an amount of Rs.100,000/- from MCB Bank Bhalwal branch, when were on their way to home on a motorcycle, two persons namely Yasir Parvez and Muhammad Ansar chased them on motorcycle Honda-125 bearing Registration No.SGO-1973 and when they reached near Bhaira-Bhalwal Chowk, three companions of above said persons, namely Muhammad Imran, Mukhtar and an unknown on a Honda Motorcycle also started chasing them on the signal given by Yasir Pervaiz and Muhammad Ansar and when they reached in street No.15 Noor Hayat Colony, Bhalwal near their house, Yasir Parvez and Muhammad Ansar came from front side whereas Imran, Mukhtar and an unknown person came from back side and stopped them while taking out their firearms. As per contents of Exh.P-U, Muhammad Imran and Mukhtar gave repeated blows with butts of their pistols on head of Hashmat Ali and the unknown accused gave pistol butt blows on different parts of body of complainant. It was further averred in Ex.P-U that on resistance, Yasir Parvaiz made a fire with pistol which hit on abdomen of complainant's brother Hashmat, who fell down; hearing report of fire shot as well as hue and cry of complainant and his brother, Shahid Qamar and Sajid Ali residents of Noor Hayat Colony and many other persons attracted the spot, whereupon accused persons after forcibly snatching cash Rs.100,000/- on gun point, fled away.
3. After registration of FIR, investigation was conducted by Muhammad Ashraf S.I (PW-13) who claimed to have registered FIR Exh.PU/1 on the basis of application Exh.PU, prepared injury statement Exh.PM of Hashmat Ali and got himself medically examined by deputing Muhammad Razzaq Constable, proceeded to place of occurrence and inspected the same, secured blood stained earth from place of occurrence through recovery memo Exh.PX, took into possession an empty P-16 from the place of occurrence vide recovery. memo Exh.PY, prepared rough site plan of place of occurrence Exh.PZ. On 1I.O7.2017, PW-13 stated to have arrested Muhammad Ansar and Yasir Parvez and obtained their physical remand. On 12.07.2013, Hashmat Ali succumbed to the injuries at Mayo Hospital, Lahore and receiving this information PW-13 said to have recorded Rapt Exh.PAA in the daily diary register and went to Mayo Hospital, Lahore, wherefrom collected death certificate Exh.PR, received the dead body, prepared injury statement Exh.PS and inquest report Exh.PT an after post-mortem examination, Muhammad Razzaq Constable handed over last worn clothes of deceased and a sealed bottle to PW-13 who took the same into possession vide recovery memos Exh.PM and Exh.PN, respectively. On 13.07.2013, PW-13 stated to have got inspected the place of occurrence by draftsman Muhammad Hafeez and the later after preparing scaled site plan Exh.PF and Exh.PF/1, handed over the same to PW-13. On 19.03.2013, PW-13 claimed to have arrested Muhammad Imran accused and obtained his physical remand. PW-13 stated to have recovered during investigation a pistol .30-bore P-6 along with two live bullets P-7/I-2 on the pointing out of Yasir Parvez accused and took the same into possession vide recovery memo Exh.PG, recovered cash Rs.25000/- on the pointing out of Yasir Parvez accused and took the same into possession vide recovery memo Exh.PH, prepared rough site plan of place of recoveries Exh.PBB. PW-13 also claimed to have recovered pistol 30-bore P-1 along with three live bullets P-2/1-3 on the pointing out of Muhammad Ansar accused and took the same into possession vide recovery memo Exh.PA, recovered cash Rs.25000/- on the pointing out of Muhammad Ansar accused and took the same into possession vide recovery memo Exh.PB, recovered Honda Motortycle on pointing out of accused Muhammad Ansar and took the same into possession through recovery memo Exh.PC, prepared rough site plan of place of recoveries Exh.PCC and thereafter he was transferred.
4. Investigation was then entrusted to Ahmad Yar S.I (PW-12) who stated to have recovered a pistol 30-bore P-4 on the pointing out of Muhammad Imran accused and took the same into possession vide recovery memo Exh.PG, recovered cash Rs.25000/- on the pointing out of Muhammad Imran accused and took the same into possession vide recovery memo Exh.PE, prepared rough site plans of places of recoveries Exh.PW and Exh.PV, respectively and thereafter he was transferred.
5. Subsequent investigation was conducted by Muhammad Usman S.I (PW-14) who stated to have arrested Mukhtar Ahmad accused and during investigation recovered pistol 32-bore P-9 and two live bullets P-10/1-2 on his pointing out and took the same into possession vide recovery memo Exh.PJ, also recovered cash Rs.15000/- on the pointing out of Mukhtar Ahmad and took the same into possession vide recovery memo Exh.PK, prepared rough site plan of place of recovery Exh.PDD.
PW-14 also said to have recovered an amount of Rs.10,000/- from Mukhtar Ahmad accused and took the same into possession vide recovery memo Exh. PL and prepared site plan of place of recovery Exh.PEE. On completion of investigation, report under section 173, Cr.P.C. was submitted before trial court. Appellants were indicted for the offences under sections 302, 396, 412, P.P.C. They pleaded not guilty and trial commenced.
6. At trial, fifteen PWs were recorded whereas Tasawar Hussain 437/C, Shahid Qamar and Ijaz Mumtaz 1376/C were given up being unnecessary by learned DDPP.
7. Muhammad Jahangir 376/C (PW-1) is attesting witness of recovery memos Exh.PA, Exh.PB, Exh.
PC, Exh.PD and Exh.PE. Imtiaz Ahmad 1331/C (PW-2) claimed to have deposited parcel of blood stained earth in the concerned lab. Muhammad Hafeez draftsman (PW-3) claimed to have prepared scaled site plan Exh.PF and Exh.PF/1. Muhammad Yousaf 444/MHC (PW-4) while being posted as Moharrar stated to have received parcel of blood stained earth and handed over to PW- 2 for onward transmission. Muhammad Riaz 268/C (PW-5) stated to have executed warrants of arrest and proclamations against Mukhtar Ahmad accused on 23.11.2013 and 11.12.2013, respectively.
Muhammad Aslam 716/C (PW-6) is attesting witness of recovery memos Exh.PG and Exh.PH. Zafar Iqbal 1222/C (PW-7) is attesting witness of recovery memos Exh.P.I and Exh.PL. Muhammad Razzaq 484/C (PW-8) stated to have escorted the dead body to mortuary and after autopsy handed over last worn clothes of deceased to the I.O, who took the same into possession vide recovery memo Exh.PM. Ocular account in this case was furnished by Sadiq Ali complainant (PW-10) and Sajid Ali (PW-11). PW-12, PW-13 and PW-14 are the investigators. Nasir Ahmad 1076/C (PW-15) is the attesting witness of recovery memos Exh.PX, Exh.PY, Exh.PA, Exh.PB and Exh. PC. Medical evidence was furnished by Dr. Muhammad Ali (PW-9), who conducted medical examination of Hashmat Ali (the then injured) on 02.07.2013 at 11:15 A.M. and noticed following injuries:- i. A lacerated wound 3-1/2 x 1 cm x bone exposed on left side of head. ii. A lacerated wound 2-1/2 cm x 1/2 cm x bone not exposed on left side of head 1.5 cm above injury No.1. iii. A firearm wound of entry 1.5 x 1 cm x going into abdomen on right side 12 cm above umbilicus (corresponding hole was present on Qameez).
According to PW-9, injuries Nos.1 and 2 were inflicted by blunt weapon whereas injury No.3 was caused by firearm weapon and the injuries were fresh. On 12.07.2013, PW-13 conducted post- mortem examination on the dead body of Hashmat Ali and observed as under:-
1. A fire arm wound of entry on right side of abdomen as already mentioned in MLR No.294/13 dated 02.07.2013.
2.a Fifteen stitched silk stitches found on midline of abdomen.
2.b 02 stitched drain holes on right side of abdomen.
2.c One stitched drain hole on left side of abdomen.
2.d One hole on upper part of right chest.
3. Head injury as mentioned in MLR stated above.
Cause of death, according to PW-9, was injury No. 1.
After tendering in evidence report of PFSA Exh.PAA, prosecution evidence was closed by learned DDPP.
8. Statements of appellants were recorded under section 342, Cr.P.C. They controverted and denied the allegations of facts so put to them from the evidence of PWs and professed their innocence.
None of the appellants opted to appear in the witness box under section 340(2) Cr.P.C. and also did not chose to produce any evidence in defence except Yasir Parvez appellant but he also did not submit any evidence in his defence. In reply to the question why this case against him and why the PWs had deposed against him, appellant Yasir Pervaiz took the following stance:- "This is a blind murder. I do not know about the occurrence. The private PWs are close relatives to each other. Officials PWs have deposed just to show their progress. I was representative of "Soni Dharti" newspaper. I got issued proclamation against PW-11 Sajid Ali and Investigating Officer Muhammad Ashraf S.I due to which I have been involved in this case. I am innocent in this case."
Mukhtar Ahmad appellant while replying the same question, took following stance:- "I have been involved in the instant case by the complainant due to mala fide and his ulterior motive. The PWs are close relatives inter se and they have deposed falsely. The complainant has involved me in the instant case on the instigation of his maternal cousin lftikhar son of Lal Muhammad Gondal resident of Chak No.9 M.L who is my opponent in the village."
Muhammad Imran appellant did not take any specific plea and only asserted that it was a false case and PWs had deposed falsely. Stance of Muhammad Ansar appellant is as under: - "I am the resident of Chak No.9 M.L and one Nazir is the Lumberdar of my Chak who is inimical towards me and the complainant had relations with him. I have been involved in this case on the asking of above said Nazir by the complainant. PWs are interse. I am innocent and I have no concerned whatsoever with the alleged occurrence.
9. On conclusion of trial, appellants were convicted and sentenced as detailed in opening paragraph of this judgment, hence, these matters.
10. We have heard learned counsel for the parties, learned Deputy District Public Prosecutor and gone through the record with their able assistance.
11. Having heard learned counsel for the parties and learned DDPP, we are constrained to observe, at the outset, that Hashmat Ali initially received fire shot injury and subsequently succumbed to the same, are the facts alone that have been proved by the prosecution at trial and rest of the story qua mode and manner of the occurrence as detailed in application Ex.PU could not at all be proved by the prosecution upto the hilt. As per the contents of Ex.PU, it was on 02.07.2013 at about 12:00 noon when complainant and Hashmat Ali (deceased) were on their way back to home after drawing Rs.100,000/- from MCB Bank Bhalwal Branch and they were initially followed by Yasir and Muhammad Ansar and subsequently by three other persons, two of whom were named as Muhammad Imran and Mukhtar and third one was unknown, whose description was duly given in Ex.PU and when they reached in the street near their house, they were stopped by the said outlaws of whom Muhammad Imran and Mukhtar initially gave butt blows hitting on the various parts of head of Hashmat Ali and unknown person also gave blows with the butt of his pistol hitting on various parts of body of complainant and on resistance Yasir Parvaiz made a fire shot with pistol 30 bore landing on the abdomen of Hashmat Ali who fell down and upon hearing report of fire shot and their uproar, Shahid Qamar, Sajid Ali and many others came at the spot and accused persons after snatching Rs.100,000/- on gunpoint made their escape good. This story, on the face of it, is vague, sketchy and lacking coherence. Complainant failed to specifically mention in Ex.P-U that whether accused persons named in Ex.P-U were in fact previously known to him. During the course of cross-examination both of the witnesses of ocular account stated that accused persons were previously known to them. Impact of their stance taken during the course of cross-examination would be dealt in detail in the later part of this judgment. Complainant has also failed to mention specific seat of injuries said to have been caused by Muhammad Imran and Mukhtar on the head of Hashmat Ali. Even he failed to specifically mention the part of his body where he received butt blows given by the unknown accused person. Complainant has also not stated anything in Ex.PU as to whether any of the accused demanded or asked either from him or from Hashmat Ali for handing over cash amounting to Rs.100,000/-. Complainant failed to specifically mention in Ex.PU as to who was carrying cash Rs.100,000/- which was claimed to have been drawn from the bank and it was also not specifically mentioned that from whom the accused persons forcibly snatched Rs.100,000/-. Even it has not been mentioned in Ex.PU that who of the accused person snatched Rs.100,000/-. It is correct that it was not essential for the complainant to have given each and every detail of the occurrence in the complaint on the basis of which FIR was lodged, however, at the same time it is equally correct that certain necessary and essential details leading to the occurrence are always required to have been mentioned in the application on the basis of which FIR was going to be lodged. It may further be observed that as per contents of FIR, complainant was accompanying his brother Hashmat Ali. when they were going back to their home on a motorcycle after drawing cash Rs.100,000/- from MCB Bhalwal Branch and two persons namely Yasir Parvaiz and Muhammad Ansar chased them on motorcycle and when they reached near Bhaira-Bhalwal Chowk, three companions of above said persons also started chasing the complainant and his brother on pointing out of said two persons and when they (complainant and his brother) reached near their house, accused persons stopped them and committed the occurrence. Bare reading of the story as narrated in the FIR reflects that complainant and his brother when were going back to their home after taking cash from bank, were vividly alert enough that they had even noticed chasing of Yasir Parvaiz and Muhammad Ansar accused and also noticed that said accused persons pointed towards them when they reached near Bhaira-Bhalwal chowk and thereupon three co-accused Muhammad Imran, Mukhtar and an unknown person also started chasing them. During the course of cross- examination complainant PW-10 stated that the whole area from bank towards their home was populated one and SDPO office was on the way, despite that, as per own showing of PW-10 during cross-examination, they did not make any attempt to report the matter to police. Even no attempt was shown to have been made by complainant and his brother to avoid chase of accused persons by taking shelter at any safe place on the way. Such conduct shown by complainant is against natural human behavior which should be in a situation like reflected in the FIR particularly when fact of chasing of complainant and his brother by the accused was in their knowledge and they were having cash with them said to have been drawn from the bank more particularly where the office of SDPO Bhalwal was situated at a distance of 100 meters from the bank and the presence of traffic police personnel usually at the said chowk was also admitted by Sadiq All PW-10. In this backdrop, we now proceed to examine the worth of witnesses of ocular account. Sadiq Ali complainant appeared as PW-10 who besides giving the narration as mentioned in Ex.PU deposed that accused persons after forcibly getting them down from motorcycle asked them to handover the amount which they had brought from the bank. It was further deposed by PW-10 complainant that accused snatched Rs.100,000/- from the deceased forcibly at gunpoint and left the., place of occurrence whereafter they shifted Hashmat Ali in injured condition at THQ Hospital Bhalwal and he moved application Ex.PU lefore the police. He further deposed that his brother Hashmat Ali was referred to DHQ Hospital, Sargodha and was further referred to Mayo Hospital, Lahore where he expired on 12.07.2013. Sadiq Ali PW-10 cautiously made improvements in his examination-in-chief by introducing the fact that accused persons asked them to hand over the amount that they had got from the bank and that accused snatched Rs.100,000/- from the deceased. Both these facts although were not got confronted during the course of cross-examination, however, a judicial notice can be taken as both the improvements, which on the face of it, were dishonest and deliberate, therefore, same cannot be ignored lightly. It is by now settled principle of law that if improvements are found to be deliberate and dishonest, same would cast doubt qua the veracity of the testimony of such witness of ocular account and no reliance can be placed on such testimony for conviction on a charge entailing death penalty for the simple reason that when a witness makes dishonest improvement while deposing before the court, he simply exposes himself to his own dishonesty that ipso facto is sufficient to discard his evidence by counting him ,a dishonest person. Reliance in this regard may safely be placed on "Fida Hussain and another v.
The State and another" (2021 PCr.LJ 174).
12. It may further be shown that complainant Sadiq Ali PW-10 admittedly was posted at Chak No.17 as Patwari Irrigation Department, as such on the day of occurrence, he was supposed to be present at his office whereas in Ex.P-U he was shown to be accompanying Hashmat Ali and also witnessed the occurrence. Claim of complainant qua his presence at the spot, in this view of the matter, makes him a chance witness particularly when it has never been the stance of complainant in his written application Ex.P-U that on the fateful date he in fact was on leave.
Chance witness, in legal parlance, was a witness who claimed that he was present at the crime spot at the fateful event notwithstanding, his presence there was sheer per chance as in the ordinary course of events he was supposed to be present at the place of his duty. Testimony of chance witness in such context is ordinarily not accepted unless justifiable reasons were shown to establish his presence at the spot at relevant time. In normal course of events presumption under the law that would operate would be that such witness was not present at the crime spot. For considering the evidence of such witness two essential ingredients are required to be established; firstly that whether witness reasonably explained his presence at the spot and secondly narration of incident as given by such witness should also inspire confidence. Both these essential elements simply are lacking in the instant case inasmuch as neither presence of PW-10 has plausibly been explained and even narration of incident given by this PW hardly inspires confidence. Sajid Ali PW- 11, in his examination-in-chief attempted to support the stance of PW-10 Sadiq Ali but he skipped to state the improved stance of complainant that accused persons demanded from them to hand over the amount. This PW instead came up with the assertion in his examination-in-chief that accused tried to snatch amount from Hashmat Ali and on his resistance, Yasir Parvaiz fired shot with his pistol. This PW who was nephew of complainant, admittedly was posted at Police Post Chak No.4-SB which was at a distance of 2-1/2 kilometers from Bhalwal City, was supposed to be present at the place of his duty. No plausible explanation at all has been put forth by PW-11 justifying his presence at the spot during the hours when he was supposed to have been present at Police Post Chak No.4-SB. This PW too would conveniently be counted as a chance witness. It may further be shown that during the course of his cross-examination PW-11 stated that at the time of occurrence, none from the locality was present except them and even they did not try to apprehend the accused persons. The stance of PW-11 that none from the locality was present at the time of occurrence except them, stood clearly contradicted by the statement of Sadiq Ali PW-10 who in his examination-in-chief stated that many other persons of the locality along with Shahid Qamar and Sajid PWs came there upon hearing their hue and cry. Similarly, conduct of Sajid Ali PW-11 that they did not try to apprehend the accused was again unnatural. It is hard to believe that one of near and dear was being injured and robbed and PW-11 simply would have kept standing there like a silent spectator. Pathetic conduct as shown by the PWs of ocular account runs counter to the natural human conduct and behavior in the ordinary course of events. Provisions of Article 129 of Qanun-e-Shahadat Order, 1984 allow the courts to presume the existence of any fact, which it think likely to have happened in the ordinary course of natural events and human conduct in relation to the facts of a particular case. The conduct of witnesses of ocular account in the instant case vividly was contrary to the common course of natural events and human conduct, further suggesting that the witnesses of ocular account were not present at the time of occurrence. Guidance has been sought from case reported as "Pathan v. The State" (2015 SCMR 315).
13. It may also be seen that according to contents of FIR, on hearing the report of a fire shot as well as hue and cry made by them (Complainant and his deceased brother), Shahid Qamar (since given up) and Sajid Ali (PW-11) attracted to the spot along with many other persons. Such narration given in the FIR suggests that the witnesses attracted to the spot after fire shot had been made, as such they cannot be considered to have seen the assailants who made said fire shot. It has never been the case of complainant that Shahid Qamar and Sajid Ali PWs were already present in the street before their arrival. However, during cross-examination, PW-10 volunteered that said witnesses were already present in the street at the time of occurrence. PW-11 Sajid Ali in his cross- examination also stated that he was present in the street where occurrence took place. Such claim of PW-10 and PW-11 is in utter contradiction with the contents of FIR where Sajid Ali and Shahid Qamar PWs were shown to have attracted to the spot after hearing report of fire shot. Matter may yet be viewed from another angle. In the scaled site plan Ex.PF which was prepared by PW-3 on the pointing out of witnesses, distance between point No.1 where deceased sustained firearm injury at the hands of Yasir Parvaiz, from point No.3 wherefrom the fire shot was made by Yasir Parvaiz, is three feet. However, during the course of cross-examination, complainant PW-10 stated that he could not say with certainty that from which side fire was shot at Hashmat Ali because they were grappling with each other. This assertion of PW-10 implies that fire shot was made on the deceased when he was grappling with the accused. As to distance of deceased from the accused when fire shot landed on the abdomen of Hashmat, two versions, thus in prosecution case emerged at trial.
According to first version, fire shot was made by accused on the deceased from a distance of 3 feet as shown in scaled site plan Ex.PF whereas according to second version fire shot was made by accused on the deceased when they were grappling with each other, as stated by complainant PW-10. Both the versions are in clear contrast with each other and considering the statement of complainant that he could not say with certainty that from which side tire was shot because they were grappling with each other, as true, it can very conveniently be inferred that complainant did not see the happening whereby fire was made on the deceased. In both the eventualities referred above, fire would be considered to have been made within a range of not more than three feet, as such, presence of burning around the entry wound was quite natural in view of principles of medical jurisprudence but strangely enough, there was no blackening around the wound as stated by Medical Officer PW-9 during the course of his cross-examination. It may also be shown that both the witnesses of ocular account have mentioned the time of occurrence as 12:00 noon but this deposition is not at all supported by the medical evidence. According to Dr. Muhammad Ali PW-9, Hashmat Ali injured was brought at THQ Hospital Bhalwal at 11:15 A.M through his brother on 02.07.2013. This deposition simply knocks the bottom out of whole prosecution story as given by the witnesses of ocular account as per whom occurrence took place at 12:00 noon on 02.07.2013. Had occurrence in this case taken place at 12:00 noon on 02.07.2013 as claimed by the witnesses of ocular account, there could have been no question that injured was brought before Medical Officer at 11:15 A.M, i.e., 45 minutes prior to occurrence.
Dr. Muhammad Ali PW-9 was indeed an independent witness and the stance taken by him cannot be doubted particularly when he was under oath and even if a wrong fact was deposed by this PW, same could have been got corrected and rectified either through re-examination or even getting this PW declared as hostile to this extent but nothing of this sort was done at trial. Learned counsel for the complainant, however, argued that the time of the arrival of injured was inadvertently deposed by PW-9 as 11:15 A.M and in fact it was 11:55 A.M as per contents of MLC Ex.PO. This assertion did not at all impress us for the simple reason that this fact should have been got corrected during the course of trial. For the sake of arguments, if it is presumed that it was 11:55 A.M when Hashmat Ali in injured condition was brought to hospital, even then the time given in Ex.PU could not be reconciled particularly when evidence of Muhammad Ashraf SI PW-13 is seen in its entirety.
According to Muhammad Ashraf S.I. PW-13, on 02.07.2013, when he was posted at Police Station City Bhalwal, Sadiq Ali complainant appeared before him at Police Station and produced application Ex.PU and after lodging formal FIR, he prepared injury statement Ex.PM of Hashmat Ali and deputed Muhammad Razzaq Constable for getting him medically examined. If injury statement was prepared after registration of FIR at 12:50 P.M, presence of injured at THQ Hospital Bhalwal even at 11:55 A.M was beyond one's comprehension and reacts against the truthfulness of contents of Ex.PU and even the evidence of witnesses of ocular account qua the time of occurrence. It may further be seen that as per the contents of Ex.PU, Hashmat Ali deceased also sustained injuries on various parts of his head, claimed to have been caused by Muhammad Imran and Mukhtar accused with butts of pistol, however, no injury whatsoever on head of Hashmat Ali was noticed by Muhammad Ashraf SI PW-13 in injury statement Ex.PN. Similarly, as per Ex.PU, complainant also sustained pistol butt blows on various parts of his body but no MLC was obtained to show the injuries inflicted upon the person of complainant. So, medical evidence in this case is in conflict with the ocular account as to the time of occurrence. In Barkat Ali's case reported in 2007 SCMR 1812, it has been held that oral evidence to the extent of its inconsistency with medical evidence could not be accepted. It has also been held in Abdul Subhan's case (PLD 1994 SC 178) that if medical evidence leaves room for doubt, benefit of that doubt should go to accused and not to. prosecution.
14. It may also be shown that Muhammad Ashraf S.I PW-13 during the course of his cross- examination admitted it correct that he did not mention the name of any of accused persons on injury statement Ex.PN, recovery memos regarding blood stained earth and empty of 30-bore. This omission is reflective of the fact that till the preparation of these documents, the names of the assailants were not known to this PW and application Ex.PU and FIR was belatedly drafted after due deliberation and consultation. It may further be observed that no record was either produced by the complainant or collected by the I.O. during the course of investigation to establish the fact that on the date of occurrence amount to the tune of Rs.100,000/- was actually drawn from the bank as mentioned in Ex.PU. Complainant PW-10 during the course of his' cross-examination stated that he did not produce any receipt before the I.O. about the withdrawal of money from the bank.
Muhammad Ashraf SI PW-13 also admitted during the course of his cross-examination that he did not take any record from the concerned bank regarding withdrawal of the amount by the deceased. He further admitted it correct that he did not record the statement of any bank official in that regard.
15. There is yet another glaring aspect in the instant matter that needs to be hinted at this juncture.
Hashmat Ali was claimed to have been brought at THQ Hospital, Bhalwal on 02.07.2013 in injured condition. Investigating Officer never made any attempt to record his statement while preparing injury statement Ex.P-N. According to Medical Officer PW-9, the pulse of the injured at the time of examination was 85 per minutes and BP was 100/70 mmhg. The fact as to why statement of injured (deceased) was not recorded by Muhammad Ashraf SI at the time of preparation of his injury statement, remained mystery throughout. According to Muhammad Ashraf S.I PW-13, he after preparing injury statement Ex.PN, deputed Muhammad Razzaq Constable for getting the injured medically examined and he himself proceeded to the place of occurrence where he conducted various proceedings and then went to Civil Hospital, Bhalwal where he was informed that the injured was shifted to DHQ Hospital, Sargodha and he on the same day claimed to have visited DHQ Hospital, Sargodha, however, Hashmat Ali was further referred to Mayo Hospital, Lahore.
Investigating Officer did not visit Mayo Hospital for a period around ten days in order to record statement of the injured till he succumbed to the injuries on 12.07.2013. Non-recording of statement of injured for about ten long days simply shattered the whole prosecution story given in Ex. PU particularly where it has not been plausibly explained at trial that what refrained the Investigator from recording statement of injured. All these facts clearly suggest that FIR in the instant case was lodged after due deliberation and consultation between complainant and police without recording L statement of injured who received fire shot on his abdomen and he was in his senses when he was firstly medically examined at THQ Hospital, Bhalwal. Legitimate and irresistible conclusion that may conveniently be drawn from the above discussed facts is that the occurrence in consequence of which Hashmat Ali received fire shot injury and then lost his life, did not take place in the mode and manner as stated by the witnesses of ocular account who even otherwise are not only chance witnesses but also interested witnesses. It is established principle of criminal jurisprudence that conviction can only be based on evidence of unimpeachable character leading to certainty of the guilt of the accused and even a single doubt arising in the prosecution case must be resolved in favour of the accused whereas instant case from its inception to end remained replete with doubts. When evidence of ocular account lacks the test of credibility and is not found worthy of reliance for being. not inspiring confidence, same cannot be accepted and cannot be made basis for the conviction and sentence on capital charge.
16. It is also relevant to note here that in the FIR which was shown to have been registered within an hour of the occurrence four accused persons are named whereas one was stated as unknown.
Appellant Yasir Pervaiz is resident of Chak No.10 ML whereas remaining appellants are residents of other Chak No.9/ML Tehsil Bhalwal. During cross-examination both the witnesses of ocular account stated that accused were previously known to them. In such eventuality, it was quite natural that accused person also knew the complainant and his brother. As per the contents of FIR, fire shot was made on Hashmat Ali by the accused when he resisted the commission of dacoity. In the FIR none of the accused was shown to be muffled faced. It does not sound logical that accused persons would have dared to commit dacoity with the persons who previously knew them. Legitimate inference that might be drawn, therefore, would be that FIR was registered in this case at some belated point of time after due deliberations and consultations by stopping the entries of daily diary register at police station. It may also be shown that according to contents of FIR, complainant and his brother (deceased) were going to their home after drawing cash from bank on a motorcycle and accused were also on motorcycles. Registration number of motorcycle of the accused persons Yasir Pervaiz and Ansar has been given in the FIR whereas registration number of the motorcycle on which complainant and his brother were going to their home, was not given in the FIR. No motorcycle either of accused or of complainant has been shown in the site plan.
17. It may further be seen that both witnesses of ocular account are closely related to deceased, therefore, they can conveniently be considered as interested witnesses, who even otherwise are chance witnesses as hinted in preceding paragraph and last but not the least, their evidence is not worthy of credit as being not confidence inspiring. Ocular testimony was not only in conflict with medical evidence but also was not fitting in the probabilities, the same cannot be relied upon without any corroboration which is lacking in the instant case. In such a situation benefit of doubt is required to be extended to accused for the simple reason that once doubts about the genuineness of prosecution story came into the mind of a judge, proper and permissible course would be to acquit the accused by extending benefit of doubt. Reliance in this regard can safely be placed on case titled "Mst. Nazia Anwar v. The State" (2018 SCMR 911).
18. Coming now to evidence of recovery of allegedly robbed amount, it may be observed that recoveries so effected are clearly in contravention of section 103 of Cr.P.C, therefore no reliance can be placed upon the same at all. Even otherwise, no specific denomination of looted amount was mentioned in Ex.PU, so, recovery of currency notes from the accused persons hardly lend any support to the prosecution case. It is an established principle of law that where prosecution case was mainly based on the evidence of ocular account and the moment truthfulness and intrinsic worth of evidence of ocular account has come under the clouds of doubts and is disbelieved, no other evidence even that of a high degree and value would be sufficient for recording conviction for a crime entailing capital punishment. Reliance in this regard may safely be placed on case "Zafar v. The State and others" (2018 SCMR 326).
19. An empty was shown to have been recovered from the spot during first spot inspection by Muhammad Ashraf S.I. PW-13 and during investigation pistols were also shown to have been recovered on the, pointing out of appellants, however, there is nothing on record to show that either the empty or the pistols were transmitted to the Punjab Forensic Science Agency for comparison in order to ascertain as to from which pistol the empty was fired and no report in this regard is available on the record. In absence of any such comparison report, recoveries of pistols shown against the appellants are simply inconsequential.
20. Now, there remains only a circumstance as argued by learned counsel for complainant that instant was a heinous crime in the result of which a person lost his life when he resisted an attempt to dacoity, it may be observed that mere heinousness of crime, if it has not been proved upto the hilt is not sufficient to provide a valid basis for conviction of the accused. Guidance has been sought from case law titled "Najaf Ali Shah v. The State" (2021 SCMR 736) wherein it was observed as follow:- "...Mere heinousness of the offence if not proved to the hilt is not a ground to avail the majesty of the court to do complete justice. This is an established principle of law and equity that it is better that 100 guilty persons should let off but one innocent person should not suffer. As the preeminent English jurist William Blackstone wrote, "Better that ten guilty persons escape, than that one innocent suffer." Benjamin Franklin, who was one of the leading figures of early American history, went further arguing "it is better a hundred guilty persons-should escape than one innocent person should suffer." All the contradictions noted by the learned High Court are sufficient to cast a shadow of doubt on the prosecution's case, which entitles the petitioner to the right of benefit of the doubt. It is a well settled principle of law that for the accused to be afforded this right of the benefit of the doubt it is not necessary that there should be many circumstances creating uncertainty and if there is only one doubt, the benefit of the same must got to the petitioner. This Court in the case of Mst. Asia Bibi v. The State (PLD 2019 SC 64) while relying on the earlier judgments of this Court has categorically held that "if a Single circumstance creates reasonable doubt in a prudent mind about the apprehension of guilt of an accused, then he/she shall be entitled to such benefit not as a matter of grace and concession, but as of right. Reference in this regard may be made to the cases of Tariq Pervaiz v. The State (1998 SCMR 1345) and Ayub Masih v. The State (PLD 2002 SC 1048)." The same view was reiterated in Abdul Jabbar v. State (2010 SCMR 129) when this court observed that once a single loophole is observed in a case presented by the prosecution, such as conflict in the ocular account and medical evidence or presence of eye-witnesses being doubtful, the benefit of such loophole/lacuna in the prosecution's case automatically goes in favour of an accused."
21. Another important aspect of the matter to be noticed is that complainant along with PW-11 Sajid Ali and Shahid Qamar claimed to have witnessed the occurrence and shifted Hashmat Ali in injured condition to hospital. In doing so, staining of their clothes with blood oozing from the wound of Hashmat Ali was very much natural. There is no evidence available on the record to show that blood stained clothes of complainant and PWs were taken into possession by the Investigating Officer. Had such clothes been taken into possession and dispatched to laboratory for grouping with the blood stained clothes of the deceased, the same would have lent strongest corroboration to the evidence of PW-10 and PW-11 showing their presence at the spot. Said omission also struck at the roots of the case of prosecution. Guidance in this regard has been sought from the dicta laid down in case reported as "Azhar Abbas and another v. The State and others" (2019 MLD 1808 Lahore).
22. Prosecution case, in view of above discussion, is replete with many doubts, benefit of the same would be extended to the appellants not as a matter of grace but as a matter of right. In case of Abdul Jabbar v. The State (2019 SCMR 129), august Supreme Court held as under:- "............ It is the settled principle of law that once a single loophole is observed in a case presented by the prosecution much less glaring conflict in the ocular account and medical evidence or for that matter where presence of eye-witnesses is not free from doubt, the benefit of such loophole/ lacuna in the prosecution case automatically goes in favour of an accused.......... "
23. The upshot of above discussion is that prosecution hopelessly failed to prove its case against appellants. Findings of conviction recorded against appellants by learned Additional Sessions Judge, Bhalwal in the impugned judgment are not sustainable, which are hereby set aside allowing Criminal Appeals Nos. 53173-J of 2017 and 531564 of 2017. Consequently, appellants Yasir Parvez, Muhammad Imran, Mukhtar Ahmad and Ansar are acquitted of the charge extending benefit of doubt to them. Appellants are in jail. They are ordered to be released forthwith if not required in any othercase.
24. Murder Reference No.253 of 2017 is answered in NEGATIVE and the Death Sentence awarded to appellant Yasir Pervaiz is not confirmed.
25. As the appellants have been acquitted of the charge, Criminal Revision No.183857 of 2018 filed by complainant seeking enhancement of sentence of appellants has become infructuous and is filed as such.