ZULFIQAR ALI SANGI, J. By this single judgment we intend to dispose of the above captioned Criminal Appeal filed by the appellant and Criminal Revision Application filed by the complainant as the same are arising out of one and same Crime. Appellant/Accused Ali Hassan impugned the judgment dated 17.06.2014 passed by learned Judge Anti-Terrorism Court Naushahro Feroze Camped at Central Prison Sukkur, whereby the appellant was convicted under Sections 302(b) 149, P.P.C. read with section 6/7 ATA of 1997 and sentenced to suffer imprisonment for life as Tazir and to pay fine of Rs.500,000/-, in default thereof to suffer S.I for six months more; for the offence under section 13(e) Arms Ordinance to suffer R.I for three years and to pay fine of Rs.10,000/-, in default thereof to suffer S.I. for three months more. The sentences were ordered to run concurrently and the benefit of section 382-B, Cr.P.C. was also extended to him. While the Criminal Revision Application has been filed by complainant Hafiz Ali Dur for enhancement of the above sentences.
2. Succinctly the facts of the prosecution case are that Complaint Hafiz Ali Dur Janwari lodged report on 17.08.2009 at 0500 hours stating therein that Allama Ali Sher Hyderi was his elder brother and was Chief Pattern of banned organization Sipah-e-Sahaba Pakistan. On 16.08:2009 at 11.30 p.m, the complainant along with his brother Allama Ali Sher Hyderi, Molvi Abdul Kareem Mari, Fareed Ahmed Abbasi, bodyguards Abdul Qayoom Janwari and Muhammad Islam Janwari and driver Imtiaz Ahmed Phulpoto proceeded in double cabin vehicle to village Dost Muhammad Abro Taluka Kingri for JALSA. After JALSA they were returning to their Madrasah on the night of 17.08.2009, at about 3.00 a.m. when they reached on Abra Seepage drain at Ahmedpur road suddenly from the left side of the road (10) armed persons emerged from dates palm garden and they all started indiscriminate firing upon the vehicle of complainant party. On the headlight of the vehicle, the complainant party identified the culprits as Qalander Bux Jageerani armed with Kalashnikov, Talib Hussain Jageerani with a DBBL gun, Oshaq Ali Jageerani with Rifle, Hayat Ali Jageerani with Kalashnikov, Muneer Husain Jageeraniwith Kalashnikov, Ali Hassan Jageerani with Rifle, Inayat Ali Jageerani with G-3 rifle, while three persons were unknown who were armed with. Kalashnikov, rifle and gun. After sustaining the firearm injuries by driver Imtiaz Ahmed the vehicle went out of his control and-tracked down from the road towards the left side in ditches and stopped there, at that time accused Qalander Bux made a straight shot upon Imtiaz Ahmed which hit him on right side of the neck while accused Hayat Ali made shot upon Fareed Ahmed Abbasi which hit him on his left leg, accused Muneer Hussain made shot with Kalashnikov upon Allama Ali Sher Hyderi which hit him on the right side below the nipple, the gunshot of accused Talib Hussain was hit to Molvi Abdul Kareem on his right leg, accused Inayat Ali fired from G-3 Rifle upon Allama Ali Sher Hyderi which hit him on his right leg, they fell down in the vehicle after raising cries. Both the bodyguards of the complainant party made firing in their self-defence on which all the accused escaped away by raising slogans and saying that by following the instructions of their religious leader they have murdered an opponent religious leader and that they belong to banned Tehreek-e-Jaffria.
Thereafter complainant found driver Imtiaz Ahmed Phulpoto was dead, Allama Ali Sher Hyderi was lying unconscious, and Fareed Ahmed Abbasi and Molvi Abdul Kareem were lying in injured condition. They also found the dead body of one accused Oshaq Ali Jageerani who was killed by his companions/accused in the firing and the vehicle of the complainant party had also bullet marks on the windscreen and its three sides. On the fire reports and cries, the villagers of nearby villages came there and with their help, the complainant party pulled out their vehicle from the ditch and then complainant party immediately took the dead body of deceased Imtiaz Ali and inured persons towards Civil hospital Khairpur for treatment but in the way Allama Ali Sher Hyderi succumbed to injuries and died. Complainant leaving the witnesses over the dead bodies and injured persons at Civil Hospital Khairpur went to the police station and lodged FIR. At the end of the FIR, it was alleged that the above named accused due to religious dispute at the instigation of leaders of banned Tehreek-e-Jaffria namely Ali Abbas Kazmi, Choudhry Sajjad Hussain, Sageer Hussain Zaidi had committed the murders of Imtiaz Ahmed and Allama Ali Sher Hyderi and also caused firearm injuries to Fareed Ahmed Abbasi and Molana Abdul Kareem and that they used to issue threats of dire consequences to the complainant party prior to the present incident.
3. The facts of Crime No.97/2009, under section 13(e) Arms Ordinance is that on 24.09.2009 accused Ali Hassan during interrogation in Crime No.84/2009, under sections 302, 324, 148, 149, P.P.C. and 7 ATA of Police Station Pirjo-Goth agreed to produce the weapon used by him in the commission of the offence and led the complainant party headed by SIP Zulfiqar Qureshi to bridge near village Chatan Shah and produced 44 bore Rifle along with a magazine containing five live bullets, taking out from bushes and disclosed that it was same weapon which was used by him in the commission of the offence. Thecomplainant sealed the property on spot in presence of mashirs, prepared such memo and brought the accused and property to the Police Station where such FIR was lodged on behalf of the State.
4. After usual investigation, challan was submitted to the court having jurisdiction. The trial court after completing legal formalities framed a Charge against the appellant/accused to which he pleaded not guilty and claimed to be tried.
5. The prosecution in order to prove its case examined PW-2 Complainant Hafiz Ali Dur at Ex-12, who produced FIR No.84/2009, at Ex.12-A and his further statement at Ex.12-B, PW-3 Muhammad Islam at Ex.13, PW-4 Abdul Kareem at Exh.14, PW-5 PC Manzoor Hussain at Ex.15, who produced memo of arrest of accused Ali Hassan at Ex.15-A, PW-6 Fareed Ahmed at Exh.17, PW-7 HC 'Muhammad Nawaz at Ex.18, who produced lash chakas forms at Ex.18-A and Ex.18-B, receipt of dead body at Ex.18-C, memo of securing clothes of deceased at Ex.18-D and memo of formal arrest of accused Sajad Hussain at Ex.18-E, PW-8 HC Abdul Jabbar at Ex.19, who produced lash chakas form of deceased Oshaq Ali at Ex.19-A and receipt of dead body of deceased Oshaq Ali at Ex.19-B, PW-9 Talib-ud- Moula at Ex.20, who produced memo and two inquest reports at Ex.20-A to 20-D. memo of inspection of vehicle at Ex.20-E, memo and inquest report at Ex.20-F and Ex.20-G, memo of bloodstained clothes of deceased Oshaq Ali at Ex.20-H, memo of sealing bloodstained clothes of deceased Imtiaz Ahmed and Allama Ali Sher Hyderi at Ex.20/I, PW-10 SIP Manzoor Hussain at Ex.21, who produced carbon copy of police letter at Exh.21-A, PW-11 Mr. Barkat Ali at Ex.23, who produced police letter at Ex.23-A, postmortem report at Ex.23-B, PW-12 Dr. Hafiz-ur-Rahman Soomro at Ex.24, who produced MLC of injured Abdul Kareem at Ex.24-A, MLC of injured Fareed Ahmed at Ex.24-B, three X-ray plates at Ex.24-C to Ex.24-E, police letters at Ex.24-F and 24-G, postmortem report and lash chakas form of Allama Ali Sher Hyderi at Ex.24-H and 24-I, postmortem report and lash chakas form of Imtiaz Ahmed at Ex.24-J and Ex.24-k, PW-13 Tapedar Allah Warayo at Ex.25, who produced sketch of vardat at Ex.25-A, PW-14 Atiqullah Memon at Ex.26, who produced memo of recovery of crime weapon at the pointation of accused Qalander Bux at Ex.26-A, memo of recovery of crime weapon at the pointation of accused Ali Hassan at Ex.26-B, memo of recovery of crime weapon at the pointation of accused Sajad Ali at Ex.26-C, PW-15 SIP Zulfiqar Ali Qureshi at Ex.27 who produced two reports of chemical examiner and two reports of forensic at Ex.27-A to 27-D, three copies of roznamcha entries at Ex.27-E to 27-G, copy of FIR No.97/2009 at Exh.27-H, copy of FIR No.96/2009 at Exh.27-I, two other roznamcha entries at Ex.27-J and Ex,27-K, copy of FIR, "No.117/2009 at Exh.27-L.
Thereafter learned DDPP closed the side of prosecution vide his statement at Ex.28.
6. The statement of the accused under Section 342, Cr.P.C. was recorded at Ex.29, in which he has denied the allegations of the prosecution and claimed his innocence. However, neither he examined himself on oath nor led any evidence in defence. After recording evidence and hearing the parties, the learned trial Court convicted the accused as stated above.
7. Learned Counsel for the Appellant has contended that the Appellant is innocent anthhas falsely been implicated by the Complainant due to a dispute over a plot with his brother co-accused Qalander Bux while the present appellant at the time of the alleged incident was residing in Bungalow No.1 Government Elementary College for (Women) Khairpur; that there is unexplained delay of 4-1/2 hours in registration of FIR as such consultation and deliberation cannot be ruled out; that no specific role has been assigned to the appellant; that the charge is defective; that the complainant has made exaggeration in his evidence by saying that that the present appellant made straight fire with his rifle ,which hit to brother of complainant Allama Ali Sher Hyderi which is contradictory and creates serious doubt but it was not considered by the trial court; that no incriminating article i.e. rifle has been recovered from the possession of the present appellant which shows that neither he was available at the vardat nor participated in the alleged incident; that there were material contradictions in the evidence of prosecution witnesses and the case of the prosecution is not free from doubt; that learned trial Court has brushed aside the material contradictions in the evidence; that the impugned judgment is clear example of misreading and non-reading of evidence; that a single dent in Prosecution case, which seems to he necessary, goes in favour of accused. In support of his contention, learned Counsel placed reliance upon the cases of Muhammad Mansha v. The State (2018 SCMR 772), Muhammad Imran v. The State (2020 YLR 1139), Ijaz v. The State and another (2020 YLR 1620), Abdul Razzaq and another v. The State (2013 YLR 788) and Muhammad Ashraf v. The State (2012 SCMR 419).
8. Learned Counsel representing the Complainant submitted that there is no delay in registration, of FIR; that complainant has been fully supported by all the witnesses who have remained firm, consistent and corroboration to each other on all material points; that as per section 367(5), Cr.P.C. in case of 302, P.P.C. the normal punishment is death and if the court sentences other than death the court shall state in its judgment the reasons as to why sentence of death was not passed while awarding the lesser sentence which learned trial court did not mention in its judgment. Lastly, he submitted that the appellant/accused has committed the murder of deceased Ali Sher Hyderi which is a heinous offence hence learned trial Court has rightly convicted the appellant but awarded lesser punishment which may be enhanced. He in support of his contention placed reliance on the cases of Irfan Saeed and others v. The State and others (2012 PCr.LJ 63) and Muhammad Latif v. The State (PLD 2008 SC 503).
9. Learned Additional Prosecutor General has contended that all the PWs have deposed in the same line; that the prosecution evidence is reliable and confidence-inspiring. Lastly, he prayed that by dismissing the instant appeal, the conviction awarded by the learned trial Court may be maintained rather than enhanced.
10. We have heard learned Counsel for the Appellant, learned counsel for the complainant as well as learned Additional Prosecutor General and have carefully examined the material available on record with their able assistance.
11. The incident in the present case is of nighttime which occurred on 17.08.2009 at about 3.00 a.m. the case of the prosecution in respect of the identification of the accused is that they were identified on the headlights of the vehicle. The complainant was sitting on the front seat of the vehicle whereas the driver/ deceased Imtiaz Ahmed was driving the double cabin vehicle. The brother of the complainant Allama Ali Sher Hyderi was sitting in the backseat in-between Fareed Ahmed and Molana Abdul Kareem. Two guards were also sitting in the dickey (Dala). Suddenly seven (7) nominated and three unidentified accused persons duly armed with weapons emerged from dates palm garden and started indiscriminate firing upon the vehicle from the front and both sides. Due to firing, the driver received firearm injury and the vehicle went out of his control and stopped in ditches on the left side of the road. Due to firing the driver, Imtiaz had died on the spot whereas three persons namely Allama Ali Sher Hyderi, Fareed Ahmed and Molvi Abdul Kareem sustained firearm injuries and became seriously injured. The complainant also added that one accused Oshaq Ali had been killed in the firing of his accomplices. They on the headlights of the vehicle saw and identified the accused persons. The complainant in his cross-examination stated that they saw the accused persons from a distance of 40/50 paces. The complainant also stated that the accused persons made fire shots at a distance of 7/8 paces. The complainant stated during cross-examination that he saw the accused persons who were making firing from left and right sides on the deceased Allama Ali Sher Hyderi by turning his face. PW-3 Muhammad Islam had deposed that when they reached Abra Sem Nali they noticed at about 3.00 am that 10 persons duly armed came, suddenly firing started from all three sides and he on the headlights of the vehicle saw each culprit. This witness during his cross-examination stated that they were sitting on the rear open portion of the single cabin. He further stated in his cross-examination that the accused made firing from the left, right and front sides of their vehicle. PW-4 Abdul Kareem also deposed that he identified the accused persons on the headlights of the vehicle which. Were 10 in number? He stated that they saw the accused persons from a distance of 20 to 50 paces. This witness also admitted that it was a dark night. PW-6 Fareed Ahmed deposed that at the time of the incident 10 persons came in front of them and made indiscriminate firing on them and they were identified by him on the search light and headlights of the vehicle. The narration of occurrence given by PWs, as aforesaid, is repellent to senses. It was a nightly occurrence and they were sitting in the double cabin vehicle. Though it has been mentioned that they identified the culprits in the lights of the said vehicle yet it is hardly believable that they could see the assailants when they had been firing desperately. All the PWs were equally under direct and immediate threat of death but still, they were able to give a photographic narration of the occurrence by attributing fire shots at the deceased and injured at the hands of 10 accused persons at a distance of 40/50 paces. It is observed that the only source of light available with the PWs by which they saw the appellant firing at the deceased was the headlights of the double cabin vehicle but the said double cabin vehicle was not produced before the court. After scanning the record it transpired that the police has also not taken into possession the vehicle in which the alleged eye-witnesses were travelling and they witnessed the occurrence in the light of the supra mentioned vehicle. The mashirnama of inspection of the vehicle also scanned but nothing is mentioned in it about the availability of searchlights or the headlights of the vehicle which was the source of identification. In the circumstances of the case at hand, the identification of the accused on the headlights of the vehicle is a weak type of evidence. Honourable Supreme 'Court of Pakistan in the case of Sardar Bibi and others v. Munir Ahmed and others (2017 SCMR 344) has held as under:- "From the above discussion, it is quite clear that in this case FIR was chalked out after consultation and deliberation.
The delay in the FIR and postmortem examination further confirms that FIR and documents i.e. inquest report etc. were prepared much after the given time. The source of light i.e. bulbs etc. was not taken into possession during investigation to establish that the witnesses who were allegedly at the distance of more than 100 feet could identify the assailants. So the identification of the assailants was also doubtful in such circumstances of the case. Honourable Supreme Court of Pakistan in another case of Khalil v. TheState (2017 SCMR 960) has held as under:-
12. The presence of the complainant Hafiz Ali Dur is also not established nor is his evidence in this respect believable. The complainant stated that he was sitting on the front seat of the vehicle, but surprisingly neither he nor his two guards Abdul Qayoom and Muhammad Islam had sustained any firearm injury. The complainant has disclosed that both the injured and deceased were sitting on the rear seat of the vehicle. It cannot be believed by a prudent mind that the bullets were passing from him and were hitting the deceased and injured and he was noting the same.
However, the complainant admitted in his cross-examination by stating that "I was sitting on the front seat and at the time of firing I put my head down for some time and thereafter again seated properly to see the incident. Accused were continuously making fire shots and it continued for about 5/6 minutes. It is correct that I did not receive any type of injury." Such evidence of the complainant is not believable as it is not possible that the bullet after crossing him without hitting him goes and hits a person sitting behind him. Further the complainant was not remembering the names of those people who invited them on the night of the incident. All these facts established that the complainant was not present at the time of the incident and he has disclosed the facts in the FIR on the narration of someone else, and thereafter also improved the case at the time of recording his evidence before the trial court. In such circumstances, the evidence of the complainant is not reliable nor trustworthy or confidence-inspiring. "Falsus in uno, falsus in Omnibus" PLD 2019 Supreme Court 527.
13. The other PWs/eye-witnesses also gave contradictory evidence and made dishonest improvements in their evidence. PW-03/eye-witness Muhammad Islam in his cross-examination admitted that "We due to late night under the conditions of sleeping and on hearing fire shots we became alert. At that time our vehicle was on the road and thereafter our vehicle got down on the rice field and our arms fell down. Front side of the vehicle there was a palm Date garden. At the time of making firing the accused were on the left, right and front of vehicle. Accused were on the right and left side of the vehicle and they were surrounding our vehicle when it was fallen down.
Due to firing we become afraid and remained in our vehicle". However, he admits during cross- examination that he made 12 or 13 fire shots (which he had not disclosed at the time of investigation), and the empties of their weapons were either lying in the vehicle or lying on the ground. Whereas the complainant disclosed that their vehicle went into ditches. From the perusal of the memo of inspection of Double Cabin Vehicle Ex-20/E, no empty was secured by the I.O. of the case neither from the vehicle nor from the ditches. The PW-3 Muhammad Islam admits that he is a close relative of the complainant and he has further added that he had not seen the dead body of the deceased Oshaq Ali in the rice field. In cross-examination, he admits that "Dead body of Oshaq was lying 7 or 8 feet away from our vehicle... It is correct that accused Ali Hassan is school teacher in a government school. I do not know if Ali Hassan was previously shown as accused in any criminal case by us...lt is correct that it was dark night when incident was taken place". Whereas PW-4 Abdul Kareem disclosed in his evidence that the dead body of deceased Oshaq Ali was lying on the road at the place of the incident. PW-4 Abdul Kareem and PW-6 Fareed Ahmed almost disclosed the same story narrated by the complainant. The prosecution gave up PW-Abdul Qayoom. PW-4 Abdul Kareem also made improvements in his evidence while disclosing that searchlights were fixed on the top of the vehicle. The complainant and eye-witnesses have not supported his version in respect of the searchlights as to whether the same were available at the top of the vehicle or not nor was it disclosed by the I.O. of the case while preparing the memo of inspection of vehicle Ex-20-E.
14. Turning to the case of the prosecution in respect of the participation of appellant Ali Hassan Jageerani and the role played by him at the time of the incident as alleged by the prosecution during recording evidence that appellant Ali Hassan Jageerani fired from rifle upon deceased Ali Sher Hyderi which hit him on his right knee it is observed that the present incident took place on 17- 08-2009 at 3.00 am in the night hours and the FIR was registered on the same day at 0500 hours, the complainant while recording his FIR has not assigned any role against the present appellant Ali Hassan Jageerani nor during the investigation, he made a complaint against the police officials that his FIR was not registered according to his verbatim. However, during the investigation on 24- 09-2009, a further statement of the complainant was recorded wherein he changed his version given in the FIR and nominated another set of accused persons including the accused mentioned in the FIR as accused. Even in the further statement recorded after about 16 days of the incident and the FIR, no role has been assigned against the present appellant Ali Hassan Jageerani. The complainant in the FIR in respect of the role of the accused persons stated that "Due to receiving firearm injury by driver Imtiaz Ahmed Phulpoto, the vehicle went became out of his control and stopped.in ditches in the left side of road. Accused Qalander Bux Jageerani made straight fire upon Imtiaz Ahmed which hit to him on right side of neck. Straight fire made by Hayat Ali hit to Eareed Ahmed Abbasi in his left leg, Munir Hussain Jageerani made fire of Kalashnikov upon brother Ali Sher Hyderi which hit below the right nipple, Talib Hussain Jageerani made straight fire of shotgun upon Molvi Abdul Karim which hit on his right leg. Inayat Ali Jageerani made fires of G-3 upon my bother Allama Ali Sher Hyderi which hit on his right, leg, blood was oozing from all the injured."
15. The appellant was arrested on 08.09.2009 and a further statement of the complainant was recorded on 24-09-2009 after about 16 days of the arrest of the appellant even then no role was assigned against the appellant by the complainant. The evidence of the complainant and the eye- witnesses was recorded on 02-05-2012, 09-05-2012 and 18-10-2012 after about three years wherein they changed/ improved the case by leveling direct role against the appellant Ali Hassan Jageerani that he fired from his rifle which hit Ali Sher Hyderi on his knee. We have also scanned the medical evidence produced by the prosecution while conducting the postmortem doctor Hifz-ur- Rahman found the following injuries on the body of deceased Ali Sher Hyderi:--
1. Lacerated type punctured wound size 3 c.m in diameter present over abdomen above the umbilicus into abdominal cavity deep. (wound of entry).
2. Lacerated type punctured wound size 3.5 c.m. x 3 c.m present over right side of abdomen at lumber region (wound of exit).
3. Lacerated type punctured wound size 0.5 c.m in diameter present over posterior aspect of right thigh at the level of upper 1/3rd area. (wound of entry).
4. Lacerated type punctured would size 2.5 c.m in diameter present over medical side of right thigh.
(wound of exit).
5. Lacerated type punctured wound size 0.5 c.m in diameter present over lateral aspect of middle 1 / 3rd of right thigh with inverted margins. (wound of entry).
6. Lacerated type punctured wound size 3 c.m in diameter present over medical aspect of right thigh with clinical fracture of under lying bone. (wound of exit).
A perusal of the medical evidence as stated above it is clear that there is no firearm injury on the knee of deceased Ali Sher Hyderi for which the appellant was allegedly involved after about three years of the incident, however, the injuries on the right thigh have been attributed by the complainant and the witnesses against the co-accused Inayat Jageerani which reflects that the complainant and the witnesses improved their case by taking benefit of two injuries on the right thigh of the deceased and to bring it with the conformity with the medical evidence but they did not think about that what they have already stated and from the evidence of the prosecution witnesses the said allegation of injuries on the right thigh of the deceased has assigned against the co-accused Inayat Jageerani, such improvement in the case of prosecution makes the case of prosecution doubtful. The Honourable Supreme Court of Pakistan in the case of Muhammad Mansha v. The State (2018 SCMR 772), has held as under:-- "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 witnesses in this case have also made dishonest improvement in order to bring the case in line with the medical evidence (as observed by the learned High Court), in that eventuality conviction was not sustainable on the testimony of the said witnesses. Reliance, in this behalf can be made upon the cases of Sardar Bibi and another v.
Munir Ahmad and others (2017 SCMR 344), Amir Zaman v. Mahboob and others (1985 SCMR 685), Akhtar Ali and others v. The State (2008 SCMR 6), Khalid Javed and another v. The State (2003 SCMR 1419), Mohammad Shafiqe Ahmad v. The State (PLD 1981 SC 472), Syed Saeed Mohammad Shah and another v. The State (1993 SCMR 550) and Mohammad Saleem v.
Mohammad Azam (2011 SCMR 474)."
The Honourable Supreme Court of Pakistan in the case of Muhammad Mansha (supra) also held that "In that eventuality, the conviction upon the statements of the witnesses who, in the assessm ent of the High Court, made dishonest improvements and their divergent stances in the FIR and the private complaint made them doubtful then there was no legal justification to convict the appellant Muhammad Mansha on the same set of evidence without independent corroboration conspicuously lacking in the instant case, as held by this Court in the cases of Ghulam Sikandar and another v. Mamaraz Khan and others (PLD 1985 SC 11), Sarfraz alias Sappi v. The State (2000 SCMR 1758), Iftikhar Hussain and others v. The State (2004 SCMR 1185), Akhtar Ali and others v. The State (2008 SCMR 6), Muhammad Ali v. The State (2015 SCMR 137), Mst.
Sughra Begum and another v.Qaiser Pervez and others (2015 SCMR 1142) and Shahbaz v. The State (2016 SCMR 1763). The above principle has been appreciated by the High Court in the instant case, but erroneously convicted the petitioner against the said settled principle."
16. The learned trial Court while convicting the appellant sought corroboration from the recovery of the weapon i.e. rifle and the medical evidence so also the evidence of the injured witness. It has been declared by the Honourable Supreme Court in various judgments that the medical evidence neither pinpoints the accused nor establishes the identity of the accused, and at the !host can depict the locale of injury, duration, the weapon used etc. and medical evidence can never be considered to be a corroborative piece of evidence and at the most can be considered supporting evidence only to the extent of specification of the seat of injuries, the weapon used, duration, the cause of death etc., a reference in this context can be made to the cases of Muhammad Sharif and another v. The State (1997 SCMR 866), Mehmood Ahmad and 3 others v. The State and another (1995 SCMR 127), Dildar Hussain v. Muhammad Afzaal alias Chala and others (PLD 2004 SC 663), Abdul Majeed v. Mulazim Hussain and others (PLD 2007 SC 637) and Hashim Qasim and another v. The State (2017 SCMR 986). It is further observed that evidence of injured witnesses was not straightforward and confidence-inspiring as they have improved the case while deposing against the present appellant. It is settled law that an injured witness, would not be relied upon ipso facto, because of injuries but is to be examined whether the evidence is trustworthy and confidence-inspiring. The complainant admitted that co-villagers also came to the place of the incident and helped him but they were not made witnesses of the incident. The complainant also in his cross-examination stated that the private witnesses are the members of their Jamaat. PW Muhammad Islam admitted that he is a close relative of the complainant. PW Abdul Kareem admitted that at the time of the incident he was president of Anjuman Sipah-e-Sahaba District Khairpur. PW Fareed Ahmed also admitted that he was secretary of deceased Allama Ali Sher Hyderi. He also admitted that Abdul Kareem and Paryal Shah were the members of Organization and also were police personnel. The assessment of evidence also reflects that all the PWs are related to each other either in blood relation or due to their Organization therefore their evidence is assessed carefully. Although they received the injuries during the incident but they have not deposed actual truth in respect of the incident and made dishonest improvements before the trial court. Honourable Supreme Court of Pakistan in the case of Said Ahmed v. Zammured Hussain (1981 SCMR 795) has held as under:-- "It is correct that the two eyewitnesses are injured and the injuries on their person do indicate that they were not self-suffered. But that by itself would not show that they had, in view of the afore- noted circumstances, told the truth in the court about the occurrence; particularly, also the role of the deceased and the eye-witnesses. It cannot be ignored that these two witnesses are closely related to the deceased while the two other eyewitnesses mentioned in the FIR, namely, Abdur Rashid and Riasat were not examined at the trial. This further shows that the injured eye-witnesses wanted to withhold the material aspects of the case from the court and the prosecution was apprehensive that if independent witnesses are examined, their depositions might support the plea of accused."
17. The appellant was arrested on 08-09-2009 and at the time of arrest nothing was recovered from his possession; however, after about 16 days of his arrest on 24-09-2009, during interrogation appellant agreed to hand over the weapon and the police party took him to the place where the weapon was concealed and the appellant took it out and handed over it to the police. Prosecution in order to prove recovery of crime weapons examined PW SIP Zulfiqar Ali the complainant of the arms case who in his cross-examination stated that he prepared the memo at the place of recovery, checked the crime weapons there and also sealed the same at the place of recovery. The mashir of recovery Atiqullah stated in his cross-examination that the memo was prepared by SIP Zulfiqar Ali at the place where his car was stopped. SIP Zulfiqar Ali also admitted that there was a distance between the place of recovery and the place where the car was parked, however, he was unable to disclose such distance. The SIP also stated that he sealed the weapons but the mashir stated that SIP was writing the memos and the weapons were sealed by the constables all these contradictions in the evidence of witnesses make the recovery of the weapon doubtful. It is settled by now that when substantive evidence fails to connect the accused person with the commission of the offence or is disbelieved, corroborative evidence is of no help to the prosecution as the corroborative evidence cannot by itself prove the prosecution case. Honourable Supreme Court of Pakistan in the case of Saifullah v. The State (1985 SCMR 410) has held as under:- "Considering all the facts on the record we are of the view that it was an unwitnessed occurrence.We have therefore no option but to exclude the testimony of the aforementioned two witnesses from consideration with the that no evidence is left on the record to connect the accused with the crime in question, as the recovery of the blood-stained knife, even if believed, could only be used as evidence corroborating the testimony of the eye-witnesses, if any. But since evidence of the eyewitnesses in this case has been excluded this recovery is hardly of any use."
18. It is important to note here that the police secured the empties from the place of the incident on 17.08.2009 and the Rifle was allegedly recovered on 24-09-2009 but both were sent to the office of Forensic Division Karachi on 06.11.2009. The empties were sent to the office with a delay of about more than 60 days. Whereas crime weapons and empties were sent on 06.11.2009 with a delay of about 40 days. Although the report of the Forensic Science Laboratory revealed that the firearm recovered from the accused matched with the crime-empties secured from the place of the incident yet the investigation officer had admitted that the crime-empties had been sent to the Forensic Science Laboratory when the crime weapon was recovered. In his cross-examination, he admitted that It is a fact that from 17.08. 2009 up to 31.08.2009 the empties were under my possession. The same property was sent to the Forensic office through letter of SSP Investigation. It is a fact that from 24.09.2009 up to 06.11.2009 the recovered crime weapons were under my possession. I cannot give such explanation of delay". Such recovery is legally insupportable and has no value in the eyes of law. Reliance is placed on the cases of Nazeer Ahmed v. The State (2016 SCMR 1628) and Muhammad Javed v. The State (2016 SCMR 2021).
19. The motive as set up by the complaint/prosecution witnesses was that the incident took place on sectarian rivalry and the deceased Allama Ali Sher Hyderi and the PWs belonged to Sipah-e- Sahaba Organization whereas as per the version of the complainant party the accused persons belongs to Tehreek-e-Jaffria and the incident took place on the instigation of leaders of the Tehreek-e-Jaffria. None of the witnesses has produced any proof in respect of the religious dispute before the trial court. Even if this court believe that there was a dispute on religious affairs then the same is not against the present appellant and was against Ali Abbas Kazmi, Choudhry Sajjad and Sageer Zaidi some of them were already been acquitted by the trial court on an application under section 265-K, Cr.P.C. Even not a single word has been deposed by the prosecution witnesses against the appellant in respect of the motive against him and only alleged that on the instigation of those accused persons who have a religious rivalry with the complainant party accused committed the offence. Therefore, the prosecution has failed to prove the direct motive against the appellant hence, the real cause of occurrence remained shrouded in mystery. In this context, reliance is placed on the case of Mst. Nazia Anwar v. The State (2018 SCMR 911) wherein the Hon'ble Supreme Court has held that: "4........ that the real cause of occurrence was something different which had been completely suppressed by the both the parties of the case and that real cause of occurrence had remain shrouded in mystery."
20. The complainant party has concealed the facts in respect of the enmity between them and the Jageerani community on the plot situated in front of the Madrasah of the complainant party for which some criminal cases were registered by both the parties against each other. The complainant admitted during cross-examination and stated that "It is correct that a criminal case was registered against the present accused of the murder of my father in the year 2004." However, he denied that an FIR bearing Crime No 31 of 2004 was registered on 22-04-2004 due to a dispute over the plot and such fact is mentioned in the FIR. The complainant admitted that the grave of his father is situated in the plot in dispute however he denied that such plot belongs to accused Qalander Bux. Complainant further stated "It is correct that on the eastern side of our Madrasah there was house, saw (Aara) machine and otaq of Qalander Bux. It is correct that Aara machine, house and otaq of Qalander Bux have been demolished." PW Muhammad Islam and PW Fareed Ahmed admitted that an FIR was registered against the deceased Allama Ali Sher Hyderi and students of Madrasah for demolishing the house and otaq of Qalander Bux however they denied that they converted the said dispute into a religious dispute. It is a settled principle of law that enmity is a double-edged weapon which cut both sides but the propriety of safe administration of justice demanded to evaluate evidence on all aspects viz interested, related and inimical as well as a motive with care and caution. It is also a settled principle of law that if enmity persuades a person to commit a crime then it is also sufficient to falsely implicate some person from the other side i.e the accused. Concealment of these facts by the complainant in the FIR, and the witnesses during the investigation and even at the time of recording their chief-examination and subsequently admitted by them during the cross-examination makes the case of prosecution doubtful. Truth is the foundation of justice and justice is the core and bedrock of a civilized society, thus, any compromise on truth amounts to a compromise on a society's future as a just, fair and civilized society. It's a beautiful saying "In the court of Justice, both the parties know the truth it's the fudge who's on trial". The complainant and the other witnesses are legally bound by oath or by an express provision of law to state the truth before the court of law but from the above discussion, it is established that they have given false evidence before the learned trial court to procure/see the appellant behind the bars.
21. It is a well-established principle of administration of justice in criminal cases that a finding of guilt against an accused person cannot be based merely on the high probabilities that may be inferred from evidence in a given case. The finding as regards his guilt should be rested surely and firmly on the evidence produced in the case and the plain inferences of guilt that may irresistibly be drawn from that evidence. Mere conjectures and probabilities cannot take the place of proof. If a case is decided merely on high probabilities regarding the existence or non-existence of a fact to prove the guilt of a person, the golden rule of giving "benefit of the doubt" to an accused person, which has been a dominant feature of the administration of criminal justice in this country with the consistent approval of the Constitutional Courts, will be reduced to a naught as has been held by the Honourable Supreme Court of Pakistan in case of Muhammad Luqman v. The State (PLD 1970 SC 10).
22. It is a well-settled principle of law that the prosecution is under obligation to prove its case against the accused person at the standard of proof required in criminal cases, namely, beyond reasonable doubt standard, and cannot be said to have discharged this obligation by producing evidence that merely meets the preponderance of probability standard applied in civil cases. If the prosecution fails to discharge its said obligation and there remains a reasonable doubt, not an imaginary or artificial doubt, as to the guilt of the accused person, the benefit of that doubt is to be given to the accused person as of right, not as of concession as has been held by Honourable Supreme Court of Pakistan in case of Tariq Pervez v. State (1995 SCMR 1345). The rule of giving the benefit of doubt to an accused person is essentially a rule of caution and prudence and is deep- rooted in our jurisprudence for the safe administration of criminal justice. In common law, it is based on the maxim, "It is better that ten guilty persons be acquitted rather than one innocent person be convicted". While in Islamic criminal law it is based on the high authority of sayings of the Holy Prophet of Islam (peace be upon him): "Avert punishments (hudood) when there are doubts" and "Drive off the ordained crimes from the Muslims as far as you can. If there is any place of refuge for him [accused], let him have his way, because the leader's mistake in pardon is better than his mistake in punishment." The Honourable Supreme Court has quoted probably the latter part of the last-mentioned saying of the Holy Prophet (peace be upon him) in the case of Ayub Masih v. State (PLD 2002 SC 1048) "Mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent." Reliance also is placed on the case of Naveed Asghar and 2 others v. The State (PLD 2021 SC 600).
23. Keeping in view the said golden rule of giving the benefit of doubt to an accused person for safe administration of criminal justice, we are firm in theopinion that all the evidence discussed above is completely unreliable and utterly deficient to prove the charge against the appellant beyond a reasonable doubt. Resultantly, the Criminal Appeal No.D-45 of 2014 is allowed and the Judgment dated: 17.06.2014 passed by the Anti-Terrorism Court Naushehro Feroze, in Special case No. 84, 86 of 2012, FIR Crime No. 84 of 2009, P.S Pir Jo Goth, under sections 302, 324, 148, 149, 109, 120-B, P.P.C. read with Sections 6/7 ATA and FIR No. 97 of 2009 P.S. Pir Jo Goth under section 13(e) Arms Ordinance, is set aside and the appellant Ali Hassan son of Aashiq Ali by caste Jageerani is acquitted of the charges. He shall be released forthwith if he is not required to be detained in some other case.
24. Since we have allowed the appeal )f the appellant Ali Hassan Jageerani and acquitted him by extending him the benefit of the doubt, therefore, the revision application filed by the complainant for enhancement of the sentence has become infructuous and is hereby dismissed.
25. The Appeal and the Criminal Revision Application are disposed of in the above terms.