SADIQ MAHMUD KHURRAM, J. Zulfiqar son of Fazal Hussain and Muhammad Ismail alias Imran son of Muhammad Siddique (convicts) were tried by the learned Judge, Anti-Terrorism Court, Dera Ghazi Khan along with their co-accused namely Mst. Dilshad Bibi (since acquitted) in the case FIR No. 134 of 2014 dated 02.03.2014 registered at Police Station Kot Addu, District Muzaffargarh in respect of offences under sections 386 and 506, P.P.C. and under section 7 of the Anti-Terrorism Act, 1997. The learned trial court vide judgment dated 24.05.2016 convicted Zulfiqar son of Fazal Hussain and Muhammad Ismail alias Imran son of Muhammad Siddique (convicts) and sentenced them as infra: Zulfiqar son of Fazal Hussain:
(i) Rigorous Imprisonment for five years under section 386 read with section 34, P.P.C. and directed to pay fine of Rs.25,000/- and in default of payment of fine the convict was directed to further undergo Simple Imprisonment for six months.
(ii) Rigorous Imprisonment for five years under section 7 of the Anti-Terrorism Act, 1997.
Muhammad Ismail alias Imran son of Muhammad Siddique:
(i) Rigorous Imprisonment for five years under section 386 read with section 34, P.P.C. and directed to pay fine of Rs.25,000/- and in default of payment of fine the convict was directed to further undergo Simple Imprisonment for six months.
(ii)' Rigorous Imprisonment for five years under section 7 of the Anti-Terrorism Act, 1997.
All the sentences were ordered to run concurrently and the benefit provided under section 382-B of the Code of Criminal Procedure, 1898, was also extended to the convicts by the learned trial court.
Mst. Dilshad Bibi, the co-accused of the convicts was, however acquitted by the learned trial court.
2. Feeling aggrieved, Zulfiqar son of Fazal Hussain (convict) lodged the Criminal Appeal No.34-J of 2016 through jail assailing his conviction and sentence. Feeling aggrieved, Muhammad Ismail alias Imran son of Muhammad Siddique (convict) lodged the Criminal Appeal No.48-J of 2016 through jail assailing his conviction and sentence. We intend to dispose of the Criminal Appeal No.344 of 2016 and Criminal Appeal No.48-J of 2016 through this single judgment.
3. Precisely, the facts of the prosecution case, as brought on record through the statement of Dr. Abdul Ghafoor (PW-1), the complainant of the case, are as under:-- "On oath stated that I have clinic at Abbas Plaza GT road and practicing as Child Specialist at Kot Addu. On 27.2.2014, when I was present at my clinic, I received a postal envelope present at the table of reception, retained by an unknown person which was opened by me in presence of my brother Hazoor Bakhsh and Dr. Ejaz Gormani and read the same in which Bhatta amount Rs.20 lacs were demanded and in case of non payment of the same, it was threatened that my wife and children would be set at death and it was further mentioned in the said letter that a vehicle loaded with explosive material would be collided with the clinic of my wife and my house and if I would infirm to police, I would have to conduct postmortem of my children. It was further mentioned in the said letter that the said unknown accused persons were belonging to Tahreek Talban Pakistan and mentioned that I know what they do. It is further directed in the said letter that I should keep the said amount at the City mosque near Sarafa Bazar beneath the cap present on a mazer there on Sunday after Maghrib prayer, having currency notes were mentioned denomination of Rs,5000/- wrapped in a white polythene shopper.
On 02.3.2014, 1 along with said PWs were going to police station for information and in the way of T-chowk SI me at T-chowk to whom 1 made my statement. My statement was recorded duly by signed by me in English which is Exh. PA.
On 29.5.2014, I produced the said letter of the accused persons to the investigator which was taken into custody by the police in presence of the aforesaid witnesses. During investigation of the case, my supplementary statement was also recorded by the police in which I nominated the accused persons namely Mst. Dilshad Bibi, Muhammad Ismail and Zulfiqar Present in court because the said accused persons were also under remand with the police hi another case of similar nature.
The accused confessed the occurrence of sending the said letter in question because some other specimen hand writing was obtained from the accused Muhammad Ismail present in the court having similar hand writing of the letter in question. The said hand writing obtained was made part of the investigation file by the investigator which is present in the judicial file in original. The original letter in question was later on sent for comparison in the office Punjab Forensic Science Agency, Lahore Lahore."
4. After the formal investigation of the case, the report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial Court, wherein the appellants namely Zulfiqar son of Fazal Hussain and Muhammad Ismail alias Imran son of Muhammad Siddique and their co-accused namely Mst. Dilshad Bibi (since acquitted) were sent to face trial. The learned trial court framed the charge against the accused on 15.07.2015, to which the accused pleaded not guilty and claimed trial.
5. The prosecution in order to prove its case got as many as seven witnesses examined. Dr. Abdul Ghafoor (PW-1), the complainant of the case gave the same statement as reproduced in paragraph 3 of the instant judgment. Dr. Ejaz Hussain Gurmani (PW-2) stated that on 27.02.2014 he visited the clinic of Dr. Abdul Ghafoor (PW-1) and witnessed that Dr. Abdul Ghafoor (PW-1) had received a letter demanding Rs. 20,00,000/- or to face death and further stated that the said letter was produced before the police on 29.05.2014. Muhammad Naeem, ASI stated that on 02.03.2014 he recorded the formal FIR (Exh.PA/1). Fida Hussain Shah, SI (PW-4) stated that on 02.03.2014 Dr. Abdul Ghafoor (PW-1) produced the threatening letter (P-1) which was taken into possession by him through recovery memo. (Exh.PB). Fida Hussain Shah, SI (PW-4) further stated that he investigated the case from 02.03.2014 till 04.06.2014, arrested the appellants on 27.05.2014 and narrated the facts of the investigation conducted in his statement before the learned trial court. Imran Hussain Shah Magistrate (PW-6) stated that on 27.04.2015 the appellant namely Muhammad Ismail alias lmran was produced before him" and the specimen of his handwriting was taken and handed over to Mujahid Hussain, Inspector (PW-7), the Investigating Officer of the case, for its comparison with the letter (P-1). Waseem Akbar, Inspector (PW-5) investigated the case from 04.06.2014 till 04.09.2014 and narrated the facts of the investigation conducted in his statement before the learned trial court. Mujahid Hussain, Inspector (PW-7) investigated the case from 10.01.2015 till 23.06.2015 and narrated the facts of the investigation conducted in his statement before the learned trial court.
6. On 26.08.2015, the learned Deputy Prosecutor General gave up prosecution witness namely Hazoor Bakhsh as being unnecessary and on 15.12.2015 the learned Deputy Prosecutor General gave up prosecution witness namely Muhammad Shaft as being unnecessary. On 15.03.2016, the learned Deputy Prosecutor General closed the prosecution evidence after tendering in evidence the report of the Punjab Forensic Science Agency, Lahore (Exh.PE).
7. After the closure of prosecution evidence, the learned trial court examined the appellants namely Zulfiqar son of Fazal Hussain and Muhammad Ismail alias Imran son of Muhammad Siddique under section 342, 'Cr.P.C. and in answer to the question why this case against you and why the PWs have deposed against you, the appellants replied that they were innocent and had been falsely involved in the case. The appellants namely Zulfiqar son of Fazal Hussain and Muhammad Ismail alias Imran son of Muhammad Siddique opted not to get themselves examined under section 340(2) of the Cr.P.C., and did not adduced any evidence in their defence.
8. On the conclusion of the trial, the learned Judge, Anti-Terrorism Court, Dera Ghazi Khan convicted and sentenced the appellants as referred to above.
9. The contention of the learned counsel for the appellants precisely is that whole case is fabricated and false. The learned counsel for the appellants submitted that the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence. The learned counsel for the appellants further contended that the statements of prosecution witnesses were not worthy of any reliance. The learned counsel for the appellant finally submitted that the prosecution has totally failed to prove the case against the appellants beyond the shadow of doubt.
10. On the other hand, the learned Deputy Prosecutor General contended that the prosecution has proved its case beyond shadow of doubt by producing independent witnesses. The learned Deputy Prosecutor General contended that there was no occasion for the prosecution witnesses to substitute the real offenders with the innocent in this case. Lastly, the learned Deputy Prosecutor General prayed for the rejection of appeal.
11. We have heard the learned counsel for the appellants, the learned Deputy Prosecutor General and with their assistance carefully perused the record and evidence recorded during the trial.
12. The whole prosecution case revolves around the statement of Dr. Abdul Ghafoor (PW-1). A dispassionate analysis of the statement of Dr. Abdul Ghafoor (PW-1) reveals that the relevant facts necessary to prove the guilt of the appellants namely Zulfiqar son of Fazai Hussain and Muhammad Ismail alias iran son of Muhammad Siddique were not proved. Dr. Abdul Ghafoor (PW- 1) admittedly did not report the matter of receiving the threatening letter (P-1) on 27.02.2014, the day when he had ostensibly received the said letter. The matter was reported to police by Dr. Abdul Ghafoor (PW-1) on 02.03.2014 when his oral statement (Exh.PA) was recorded by Fida Hussain Shah, SI (PW-4) Dr. Abdul Ghafoor (PW-1) admitted during cross-examination that he had given no reason for delay in reporting the matter to the police when the police station was at a distance of only one furlong from his residence. Furthermore, even on the day when the oral statement (Exh.PA) of Dr. Abdul Ghafoor (PW-1) was recorded by Fida Hussain Shah, SI (PW-4), the threatening letter (P-1) was not produced by Dr. Abdul Ghafoor (PW-1). Fida Hussain Shah, SI (PW-4) admitted during cross-examination that he did not demand the production of threatening letter (P-1) from Dr. Abdul Ghafoor (PW-1) and the said letter was taken into possession by the Investigating Officer of the case on 29.05.2014 i.e. after about three months of receiving of the same. Fida Hussain Shah, SI (PW-4) admitted during cross-examination as under:- "I did not demand the said threatening letter from the complainant at that time. It is correct that I took the letter into possession after three months of the registration of the case. "
Dr. Abdul Ghafoor (PW-1) and Dr. Ejaz Hussain Gurmani (PW-2) also stated in their statements before the learned trial court that the threatening letter (P-1) was produced before the Investigating Officer of the case on 29.05.2014. The appellants namely Zulfiqar son of Fazal Hussain and Muhammad Ismail alias Imran son of Muhammad Siddique were arrested in the case on 27.05.2014, whereas the threatening letter (P-1) was produced on 29.05.2014, two days alter the arrest of the appellants. This delayed production of the threatening letter (P-1) on 29.05.2014, two days after the arrest of the appellants, is a circumstance sufficient on its own to raise abundant doubt with regard to the involvement of the appellants in the case. The dishonesty of the Investigating Officer of the case stands denuded and has repercussions entailing failure of the prosecution case.
13. Another aspect of the case piquing our concern is the delayed nomination of the appellants namely Zulfiqar son of Fazal Hussain and Muhammad Ismail alias Imran son of Muhammad Siddique as accused in the case. According to the prosecution evidence, initially the case was registered against unknown accused, however subsequently Dr. Abdul Ghafoor (PW-1) nominated the appellants namely Zulfiqar son of Fazal Hussain and Muhammad Ismail alias Imran son of Muhammad Siddique as accused when his supplementary statement was recorded by the Investigating Officer of the case on 27.05.2014. Dr. Abdul Ghafoor (PW-1) however admitted during cross-examination that he had not stated in his statement recorded under section 161 of the Code of Criminal Procedure, 1898 that the appellants confessed to have sent the threatening letter (P-1).
Furthermore, Dr. Abdul Ghafoor (PW-1) in his examination-in-chief stated that he nominated the appellants as accused in the case because the said appellants were in -the custody of the police, in a case of similar nature. However, during cross- examination admitted that he had not stated so in his statement recorded under section 161 of the Code of Criminal Procedure, 1898 on 27.05.2014.
Dr. Abdul Ghafoor (PW-1) during cross-examination stated as under:- "It is correct that I have not mentioned "I nominated the accused persons namely Mst. Dilshad Bibi, Muhammad Ismail and Zulfiqar Present in court because the said accused persons were also under remand with the police in another case of similar nature", in my supplementary statement with the police recorded on 27.5.2014. It is also correct that I have not mentioned in my said supplementary statement that "the accused confessed the occurrence of sending the said letter in question because some other specimen hand writing was obtained from the accused Muhammad Ismail present in court having similar hand writing of the letter in question". "
In this manner, it has been proved on record that Dr. Abdul Ghafoor (PW-1) made dishonest and blatant improvements in his statement before the learned trial court impeaching the credit of the said witness. The said improvements made by Dr. Abdul Ghafoor (PW-1) were substantial and were made with regard to crucial aspects of the prosecution evidence. By improving upon his previous statement, Dr. Abdul Ghafoor (PW-1) impeached his own credit. Article 151 of the Qanun-e- Shahadat Order, 1984 provides as under: - "151. Impeaching credit of witness. The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the Court, by the party who calls him:
(1) by the evidence of persons who testify that they, from their knowledge of the witness, believe him to be un worthy of credit;
(2) by proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence ;
(3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted ;"
As Dr. Abdul Ghafoor (PW-1) introduced dishonest, blatant and substantial improvements to his previous statements and was duly confronted with his former statement, hence his credit stands impeached and Dr. Abdul Ghafoor (PW-1) cannot be relied upon on being proved to have deposed with a slight, intended to mislead the court. The august Supreme Court of Pakistan in the case of "Muhammad Ashraf v. State" (2012 SCMR 419) took a serious notice of the improvements introduced by witnesses and rejected their evidence. We, thus, arc satisfied that the evidence of Dr. Abdul Ghafoor (PW-1) has no intrinsic worth and is to be rejected out rightly. The august Supreme Court of Pakistan in a recent case reported as "Muhammad Mansha v. The State" (2018 SCMR 772) has enunciated the following principle: "Once the Court comes to the conclusion that the eye-witnesses had made dishonest improvements in their statements then it is not safe to place reliance on their statements. It is also settled by this Court that whenever a witness made dishonest improvement in his version in order to bring his case in line with the medical evidence or in order to strengthen the prosecution case then his testimony is not worthy of credence".
The august Supreme Court of Pakistan in the case reported as Muhammad Arif v. The State (2019 SCMR 631) has enunciated the following principle: "It is well established by now that when a witness improves his statement and moment it is observed that the said improvement was made dishonestly to strengthen the prosecution, such portion of his statement is to be discarded out of consideration. Having observed the improvements in the statements of both the 'witnesses of ocular account, we hold that it is not safe' to rely on their testimony to maintain conviction and sentence of Muhammad Arif (appellant) on a capital charge."
14. We have also noted that the report of the Punjab Forensic Science Agency, Lahore (Exh.PE) proved to be the last nail in the coffin or the prosecution case. Imran Hussain Shah Magistrate (PW- 6) stated that on 27.04.2015 the appellant namely Muhammad Ismail alias Imran was produced before him and the specimen of his handwriting was taken and handed over to Mujahid Hussain, Inspector (PW-7) , the Investigating Officer of the case, for its comparison with the threatening letter (P-1). We have perused the report or the Punjab Forensic Science Agency, Lahore (Exh.PE).
According to the conclusion as arrived at by the Forensic Scientists who analyzed the items sent to them for analysis including the threatening letter (P-1) and the specimen of the handwriting of the appellant namely Muhammad Ismail alias Imran, no conclusion could be drawn that the threatening letter (P-1) was in the handwriting of the appellant namely Muhammad Ismail alias Imran. This conclusively proves that the prosecution failed to prove the charge against the appellants.
15. Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of the appellants namely Zulfiqar son of Fazal Hussain and Muhammad Ismail alias Imran son of Muhammad Siddique in the present case. It is settled principle of law that for giving the benefit of the doubt it is not necessary that there should he so many circumstances rather if only a single circumstance creating reasonable doubt in the mind of a prudent person is available then such benefit is to be extended to an accused not as a matter of concession but as of right.
The august Supreme Court of Pakistan in the case of Muhammad Mansha v. The State (2018 SCMR 772) has enunciated the following principle: "Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but us a matter of right. It is bused on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person he convicted". Reliance in this behalf can be made upon the cases Tariq Pervez v.
The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muqarab Khan v. The State (2009 SCMR 230) and Muhammad Zaman v. The State (2014 SCMR 749)."
Reliance is also placed on the judgment of the august Supreme Court of Pakistan Muqarab Khan v. The State (2009 SCMR 230) in which it has been observed in paragraph No.13 of page 236 as infra: "It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."
16. For what has been discussed above, the Criminal Appeal No.34-J of 2016 lodged by the appellant namely Zulfiqar son of Fazal Hussain and the Criminal Appeal No.48-J of 2016 lodged by the appellant namely Muhammad Ismail alias Imran son of Muhammad Siddique are allowed and the conviction and sentences of the appellants namely Zulfiqar son of Fazal Hussain and Muhammad Ismail alias Imran son of Muhammad Siddique awarded by the learned trial court through the impugned judgment dated 24.05.2016 are hereby set-aside. The appellants namely Zulfiqar son of Fazal Hussain and Muhammad Ismail alias Imran son of Muhammad Siddique are ordered to be acquitted by extending them the benefit of doubt. The appellants namely Zulfiqar son of Fazal Hussain and Muhammad Ismail alias Imran son of Muhammad Siddique are directed to be released forthwith if not required in any other case.