' The appellant namely Arokas Masih alias Allah Ditta son of Allah Rakha w s tried by the learned Additional Sessions Judge Faisalabad for the murder of his wife' amely Mst. Musarrat Bibi in case bearing F.I.R. No,7 of 1999 dated 3-1-1999 under section 302, P.P.C. Registered at Police Station Peoples Colony Faisalabad, w o vide judgment dated 30-6-2001 convicted him under section 308(2), P.P.C. And sentenced him to pay Diyat amount of Rs,1,62,0 only to the three minor legal heirs of the d ceased as the major children of the deceased namely Mst. Riffat and Haroon (daughter and son respectively) have already waived their right of Qisas and Diyat, as well as to further undergo a period of fourteen years' rigorous imprisonment. It was directed that the appellant would be kept in jail till the realization of said Diyat amount. Benefit of section 382-B, Cr.P.C. Was also extended in favour of the appellant.
' Being aggrieved by the conviction and sentences, appellant filed instance criminal appeal bearing Criminal Appeal No,2454 of 2001 through jail.
2. The facts of the prosecution case as narrated in the F.I.R. Recorded upon the statement (Exh.P.F) of Samuel Masih, P.W.8 are that sister of the complainant namely Mst. Musarrat Bibi got married with Arokas Masih alias Allah Ditta 15/16 years ago. Five children were born out of their wedlock. On 3-1-1999 at about 3-30 p.m., the complainant Samuel Masih, P.W.8, along with Amanoel his real brother were present in the house of their sister a namely Mst. Musarrat Bibi. They were gossiping in the courtyard when Arokas Masih (the appellant) called Mst. Musarrat inside the residential room.
After a short while the prosecution witnesses heard noise/cries of Mst. Musarrat, both the witnesses rushed towards the room and saw Arokas Masih armed with Chhuri causing injuries to Mst.
Musarrat by felling her on the cot. Within their view, the accused Arokas Masih cut the throat of Mst.
Musarrat. The P.Ws. Tried to rescue Mst. Musarrat when Arokas Masih raised Lalkara that if anybody approached nearby, would be done to death. The reason behind the occurrence as narrated is that relation of the spouses were strained as the accused/appellant was a wanderer and drug addict.
3. After the occurrence, Sameul Masih, complainant/P.W.8, made a complaint, Exh.P.F, to Abdul Rehman, S.I./P.W.10, at Police Post Madina Town on the basis of which formal F.I.R., Exh.P.F /1, was recorded at the police station. The said police officer conducted the formal investigation of this case and submitted challan before the trial Court.
4. During the trial, prosecution produced nine witnesses in order to prove the charge against the appellant.
' Dr. Mussarat Latif, Medical Officer/P.W.1 conducted the post-mortem examination on the dead body of Mst. Musarrat Bibi deceased and observed following injuries on her person:-- " An incised wound situated in front on the neck above the thyroid cartilage 5 c.m. Below the chin. It was 10 c.m. Below to the lobe of right ear and left and was 5 c.m.. Below the left ear lobe. The skin, face, muscles, major neck vessels and larynx were cut."
' In the opinion of Doctor, death in this case was caused due to haemorrhage and shock and this injury was sufficient to cause death in the ordinary course of nature.
' Basharat Ali, F.C./P.W.2, took the parcels of blood-stained knife and earth to the office of Chemical Examiner and deposited the same intact. Bashir Masih P.W.3, was present at the spot when the Investigating ' Officer took into possession blood-stained earth vide recovery memo. Exh.P.D. Pervez Iqbal F.C/P.W.4, took the dead body of Mussrat Bibi to the mortuary for post-mortem examination and after the same produced last worn clothes of the deceased before the Investigating Officer, which were taken into possession vide recovery memo. ,Exh.P.E. Wazarat Ali, S.I/P.W.5, entered formal F.I.R. Exh.P.F/1 at the police station on the basis of complaint, Exh.P.F. Gulzar Ahmad, F.C/P.W.6, witnessed the recovery of bloodstained Chhuri, P.5, at the instance of the appellant. This witness also signed the recovery memo. Exh.P.G. Aurangzeb, draftsman/R.W.7, 1,repared scaled site-plan, Exh.P.H and Exh.P.H/1 of the place of occurrence, Samuel Masih, P.W.8, and Shaukat Masih, P.W.9, were the eyewitnesses of this occurrence who had narrated the circumstances under which the appellants committed the murder of his wife Mst. Mussarat Bibi and had supported the prosecution in verbatim. Abdul Rehman, S.I/P.W.10, conducted the formal investigation of this case. Najam-ul- Hassan, F.C./P.W.11 kept the parcels case property) in Maalkhana for safe custody and later on delivered the same to the constables for onward transmission to the respective offices.
5. Learned A.D.A. Tendered in evidence report of Chemical Examiner, Exh.P.K, and closed the case of the prosecution.
6. After recording entire prosecution evidence, learned trial Court examined the appellant under section 342, Cr.P.C. The appellant while answering to the question "as to why this case against you and why P.Ws. Have deposed against you" replied as under: " The case is false, concocted. The P.Ws. Deposed falsely being relative/related to the deceased.
The actual facts are that Maryam Bibi was a lady of bad character and she had illicit relations with many persons who used to visit her off and on in any absence. Prior to the occurrence, I had 'left my house and was residing at, Jandanwala. The character of deceased, I complained to her brothers. Wife of Gulla is Nurse and al bad character lady having relations with many immoral p and she used my wife to co her bad acts. I forbade my many times but she did not turn the day of occurrence at ab p.m., I came to my hour suspected some persons present my house. I did not knock d my house. My children were present at the time of occurred scaled over the wall and enter house and saw the door opened. I saw in one room house an unknown person an wife Maryam Bibi lying together a cot in an objectionable con upon which I lost my self-counter suddenly provoked. I picked lying on the cot and gave blow knife on the neck of deceased unknown person fled away. I appeared before the police o very first day. The occurrence not witnessed by P.Ws. Prevailed upon the police and concocted and false story and f implicated me in this case."
' The appellant made no statement under section 340(2), Cr.P.C., ho ever, produced Mst. Riffat Bibi, D.W.1, and Haroon, D.W.2 (daughter and son on the deceased respectively). The crux o the evidence of both the defence witnesses I that the prosecution witnesses who had deposed before the trial Court were not present t thee time of occurrence and both of them Being major legal heirs of the deceased had for given the appellant (their father) in the of Almighty Allah and also have waived their right of Qisas and Diyat.
7. Learned trial Court while keeping in view the compromise effected between the appellant and two major legal heirs of the deceased convicted and sentenced the appellant under section 308(2), P.P.C. As narrated in the earlier part of this judgment.
8. Learned counsel for the appellant at the very outset did not challenge the conviction of the appellant and had prayed for some leniency in the quantum of sentence on humanitarian ground.
Conversely, learned counsel for the State half-heartedly opposed the submissions made by the learned counsel for the appellant.
9. Heard. Record perused.
10. Not only that the appellant has admitted his participation in this occurrence while making statement under section 342, Cr.P.C. Before the trial Court, the case of the prosecution also stands established from the statements of both the eye-witnesses namely Sainuel Masih, P.W.8, and Shaukat Masih, P.W.9. The presence of both the eyewitnesses in the house of the deceased being her close relative is very natural. During cross-examination, defence has failed to shatter the credibility of these witnesses. Similarly, there is nothing on record to show that any of them had any motive to falsely implicate the appellant in this case. The medical evidence and the recovery of bloodstained Chhuri, P.W.5, at the instance of the appellant support the prosecution case. The nature, location and duration of injury as narrated by the eye-witnesses stands affirmed by the Medical Reports. The statement of both the eye-witnesses, inspire confidence, rings true and the same can be relied upon safely to uphold the conviction of the appellant in the circumstances of his case. occurrence, charge persons against whom they have some motive for false implication, with the commission of the offence, the first question to be considered is whether in fact they saw occurrence."
' This definition of interested witnesses has been relied by the honourable Supreme Court in case reported as Nazir and others v. The State (1962 SC 269) and Muhammad Ali v. The State (1985 SCM R 203). In Nazir's case (Supra), 'interested' witness has been defined as under:- "Interested" witness--"One who has a motive for falsely implicating an accused person."
' The Supreme Court of Azad Jammu and Kashmir in a case reported as Abdul Rashid and others v, Abdul Ghaffar and others (2001 P.Cr.LJ page 524) has held that:- "Interested witness is one who falsely implicates and innocent person in the commission of offence with ulterior motive."
' Similar view has been adopted by Quetta Bench of Baluchistan High Court in case reported as Durani Bibi v. Jehanzaib and others (PLD 2001 Quetta 103).
' We are conscious of the talk laid down by their Lordships of the Honourable Supreme Court in Tawaib Khan's case (PLD 1970 SC 13) and Abdul Rashid and 3 others v. Abdul Ghaffar and 5 others (2001 P.Cr.LJ 524 SC AJ&K) that the Court has to sift the grains of truth from the chaff of falsehood.
However, the principle, which has already been laid down earlier in case PLD 1959 P.0 24 that credibility of witnesses is indivisible and if a witness is found to be false ,against one accused, he cannot be disbelieved against the other accused. However, the doctrine of 'falsus in uno falsus in omnibus' was held to be of no useful application in cases of Tawaib Khan and Abdur Rashid, referred to above. In order to do complete justice and to ensure that the real culprit may not escape from, punishment it was provided that the grain may be shifted from chaff, but if it is found that it would be unsafe to sift the grain from the chaff and the testimony of the witness is not confidence-inspiring, then E it will be unsafe to record conviction by singling out one of the accused persons as real culprit merely on the ground that he was allegedly attributed the fatal injury.
' Unfortunately, when the prosecution falsely implicates innocent persons along with guilty ones at times it becomes extremely difficult rather to pick up real culprits out of various accused persons.
As discussed above, we are of the firm view that the deceased lost his life due to single shot.
According to the prosecution, all the three persons resorted to firing. In this situation, it will be highly unsafe to convict the appellant merely because he is stated to be the main culprit 'who was attributed the injury.
' Apart from what has been observed above, we have not been persuaded to believe that the prosecution has successfully established the motive. Mere assertion that the criminal, litigation is pending between the parties and the occurrence took on account of a case pending adjudication, the defence version as put by the learned counsel for the appellant has some force, because it is admitted position that the complainant party was involved in the murder of Muhammad Ishaq, real brother of the appellant, and this, aspect of the case cannot be completely ignored or neglected. It has been ruled in case reported as Allah Bakhsh and another v. The State (PLD 1978 SC 171) that motive is a double edged weapon, therefore, it is common in the society that the motive may be a cause of committing an offence of murder and can be equally a base for fabricating a case or implicating the enemies in the cases of capital charge. The F.I.R. In this case was not recorded at the spot or by the complainant by going to the police station. It is strange that all the witnesses along with the Police Inspector were present at the Hospital when the complaint Exh.P.A was recorded by the S.-I. P.W. I S.-I. Muhammad Bashir has destroyed the case of the prosecution when he has stated in cross-examination that he had received six parcels at 11 A.M. On 16-11-1992.
The F.I.R. Was recorded on 16-11-1992 at 11-20 A.M., whereas the parcels were received by Muhammad Bashir, S.I., prior to registration of the case. The jeep was recovered from Japan Road. It has not been explained by the prosecution how the jeep reached Japan Road when the occurrence took place near the house of Sabaf Hussain, and the injured Sher Afzal was taken by the complainant to Hospital. The recovery of 7 MM rifle from the house of Tazeem Akhtar appellant is of no help to the prosecution because the recovery has not been witnessed by any independent witness from the locality. The recovery memo. Has been signed by Ajmal Khan, real brother of the deceased. Therefore, this is a case full of doubts.
' In case reported as Ghulam Abbas and others N . The State (2001 PCr.LJ 1672) it has been observed that:-- " Not necessary that many reasons should exist for creating doubt even a single infirmity creating a reasonable doubt was sufficient to discredit the prosecution story and benefit thereof was to be extended to the accused."
' In the case reported as Muhammad Luqman v. The State (PLD 1970 SC 10) the Honourable Supreme Court has ruled:- ...Finding of guilt against an accused cannot be based merely on the high probabilities that may be inferred from evidence in a given case Mere conjectures and probabilities cannot take the place of proof...Otherwise the golden rule of 'benefit of doubt' will be reduced to a naught."
' The above rule that 'benefit of doubt' is to be extended in favour of the accused was based on the case reported as Sikandar v. The State (PLD 1963 SC 17), where it was held that:- "Benefit of doubt to go to accused."
' In case reported as Bashir Ahmad and another v. The State (1974 PCr.LJ Lahore 385) it was held that:- " Murder case--Benefit of doubt--Benefit of doubt arising on any material point--Must be given to accused."
' We are not persuaded with the argument of the learned counsel for the complainant that there was absconsion of the appellant in this case. Even otherwise, in cases reported as Farzand Ali v. The State (2001 PCr.LJ 1601) and Khan Akbar v. Mohib Gul and another (2001 PCr.LJ 1617) it has been ruled that, " Abscondence of accused at the most can be taken as corroborative of the charge and the evidence of the charge."
Concluding the above discussion, we find that the eye-witness account neither finds support from the medical evidence nor from the motive. There is also no other credible evidence by way of recovery etc. We are, therefore, constrained to extend benefit of doubt to Tazeem Akhtar appellant as V. Ell Resultantly, Criminal Appear No,87 of 1995 filed by appellant Tazeem " Akhtar is allowed.' his conviction and sentence awarded h) the Additional Sessions Judge, Islamabad vide his judgment dated 7-5-1995 in case F.I.R. No,48 dated 14-54992; registered at Po ice Station Sihala, District Islamabad, under sections 302/34, P.P.C., is set aside. He is acquitted of the charge against him. He shall be released from jail forthwith if not required in any other case. Murder reference is answered in the negative.
' For the same reasons, Criminal Appeal No,87 of 1996 and Criminal Revision No, 71 of 1996 filed by complainant Mukhtar Ahmad are dismissed.
' Death sentence not confirmed.