2017 PLP 209 (YLRN)

SAYYED MAZAHAR ALI AKBAR NAQVI, J.

Ghulam Sabir son of Abdul Hamid and Muhammad Amjad son of Rehmat Ali, both Arain by caste, residents of Chak No.28/G, Tehsil Chishtian, District Bahawalnagar (appellants) being involved in case FIR No.50, dated 16.02.2010, offence under Sections 302, 324, 337-F(ii), 337-F(iii), 337-F(v) 34, P.P.C., registered with Police Station, Sadar, Chishtian, District Bahalwalnagar, were tried by the learned Additional Sessions Judge, Chishtian. The learned trial court seized with the matter in terms of judgment 30.11.2012 and convicted/sentenced the appellants as under:-- Sr. # Name of the appellants Conviction and sentence (1) Ghulam Sabir > Under section 302(b), P.P.C., for causing qatl-e-amd of Mst. Azra Parveen, sentenced to death in first count as ta'zir with direction to pay Rs.1,00,000/- as compensation to the legal heirs of deceased in terms of section 544-A, Cr.P.C. > Under section 302(b)/34, P.P.C., for causing qatl-e-amd of Ahmad Maroof, sentenced to imprisonment for life in second count as ta'zir with fine of Rs.50,000/-. In case of default in payment of the same, to further undergo six months S.I. > Under section 324, P.P.C., for launching murderous assault upon Najma Parveen (injured PW) sentenced him to seven years R.I. with fine of Rs.50,000/- In case of default in payment of the same, to further undergo six months S.I. > Under section 337 F(v), P.P.C., for causing injury to Najma Parveen (injured PW) sentenced him to pay daman Rs.30,000/-. > Under section 337 F(iv), P.P.C., for causing injury to Najma Parveen (injured PW) sentenced him to pay daman Rs.25,000/-. > Under section 337 F(iv), P.P.C., for causing injury to Najma Parveen (injured PW) sentenced him to pay daman Rs.25,000/-. > Under section 337-F(iii), P.P.C., for causing injury to Najma Parveen (injured PW) sentenced him to pay daman Rs.20,000/-. He was ordered to remain in jail till realization of daman amount. (2) Muhammad Amjad > Under Section 302(b), P.P.C., for causing qatl-e-amd of Ahmad Maroof, sentenced to death in first count as ta'zir with direc-tion to pay Rs.1,00,000/- as compensation to the legal heirs of deceased in terms of section 544-A, Cr.P.C. > Under section 302(b)/34, P.P.C., for causing qatl-e-amd of Mst. Azra Parveen, sentenced to imprisonment for life in second count as ta'zir with fine of Rs.50,000/-. In case of default in payment of the same, to further undergo six months S.I. > Under section 324/34, P.P.C., for launching murderous assault upon Najma Parveen (injured PW) sentenced him to three years' R.I. with fine of Rs.30,000/-. In case of default in payment of the same, to further undergo six months S.I. All the sentences of both the appellants were ordered to run concurrently, except in case of default in payment of .fine. Benefit of Section 382-B, Cr.P.C. was also extended in their favour.

2. Feeling aggrieved by the judgment of the learned trial court, the appellants have assailed their conviction and sentence through filing Crl. Appeal No.400/2012, while the learned trial court forwarded Murder Reference No.62/2012 for confirmation of death sentence in terms of Section 374, Cr. P. C, inflicted upon Ghulam Sabir and Muhammad Amjad (convicts). As both these matters are arising out of one and the same judgment of the learned trial court, therefore, the same are being disposed of through this single judgment.

3. Prosecution story as contained in the FIR (Exh.PA/1) lodged on the statement (Exh.PA) of Maroof Ahmad, complainant (PW-1) is that he is resident of Chak No.28/G, Azafi Basti. Besides the complainant, his brother Bashir Ahmad and other brothers as well as his parents are residing in ihata measuring 20-marlas, where residential rooms have been constructed. His mother is ill. On 15.02.2010 at sham wella, his sister Azra Parveen aged about 38/40 years wife of Abdul Majeed and Abdul Majeed son of Rehmat Ali, caste Arain, resident of 38/3-R had come to see his ailing mother. There is residential house of Ghulam Sabir son of Abdul Majeed, caste Arain and Muhammad Amjad son of Rehmat Ali, caste Arain, residents of the deh, on the western side of their house. The marriage of his sister Najma Bibi was solemnized with Ghulam Sabir about 13/14 years ago, but they were issueless. Some time ago, a dispute erupted between the complainant and Ghulam Sabir as well as Muhammad Amjad. Due to which, Ghulam Sabir ousted Mst.Najma Parveen from his house after quarreling. Mst. Najma Parveen was residing in their house for a period of about one year. On 16.02.2010 at about 9:00 a.m. the complainant along with his brother-in-law namely Abdul Majeed and Bashir. Hussain son of Asghar Ali, residents of 3/G were present in the eastern side of their house whereas Mst.Azra Parveen, Mst.Najma Parveen and his son Ahmad Maroof aged three years, were present in western side of the house, when they heard the noise of firing. Upon hue and cry, they reached at the spot and saw that Ghulam Sabir armed with repeater . 12-bore and Muhammad Amjad, armed with repeater .12-bore were making firing. Ghulam Sabir made fire shots landing on the chest of Azra Parveen and on the left wrist of Mst.Najma Parveen, who fell down. Due to firing of Muhammad Amjad, Ahmad Maroof fell down on the ground on sustaining injuries. On seeing them, both the accused persons fled away from the spot while brandishing their weapons through main gate of the haveli. The complainant along with other PWs attended the injured, but Azra Parveen and Ahmad Maroof had succumbed to the injuries at the spot whereas Mst.Najma Parveen, injured, was shifted to Hospital Chishtian for treatment.

4. On 16.02.2010 on receipt of information qua the occurrence, Muhammad Daraz, S.I. (since dead) reached at the spot, where Maroof Ahmad, complainant (PW-1) presented written application (Exh.PA) before him, which he sent to the police station through Khalid Mehmood, 27/C, PW, for registration of FIR. On the basis of which, formal FIR (Exh.PA/1) was lodged by Noor Ahmad, S.I. (PW-9). On the same day, Pervaiz Akhtar, Inspector (PW-10) entrusted investigation of this case to Muhammad Daraz, S.I. (since dead). Pervaiz Akhtar, Inspector (PW-10) deposed that he remained with the Investigating Officer and is very well aware with his handwriting as well as signatures. He stated that the Investigating Officer reached at the spot, inspected the dead bodies and prepared injury statements (Exh. PE/3) of Mst.Azra Parveen (deceased) and inquest report (Exh. PE/2). The Investigating Officer also prepared injury statement of Ahmad Maroof (Exh. PG/3) and inquest report (Exh.PG/2). He deposed that thereafter the Investigating Officer handed over the dead bodies along with relevant papers to Muhammad Arshad, 154/C, PW, for escorting the same to the mortuary for postmortem examination upon the dead bodies. The Investigating Officer prepared rough site plan (Exh. PH). Pervaiz Akhtar, Inspector (PW-10) deposed that he too visited the spot. He stated that the Investigating Officer secured bloodstained earth from the spot of death of Ahmad Maroof (deceased) vide recovery memo (Exh. PK). The Investigating Officer also collected one empty of gun .12-bore. (P-11) vide recovery memo (Exh. PL). The Investigating Officer secured one wad 7-pellets (P-12/1-7) vide recovery memo (Exh.PM). The Investigating Officer further collected bloodstained earth from the spot of death of Mst.Najma Parveen (deceased) through recovery memo (Exh. PN). After recording statements of the PWs under Section

161. Cr. P. C. the Investigating Officer proceeded to THQ Hospital, Chishtian, where he prepared injury statement of Mst.Najma Parveen (Exh.PF/1) and got him medically examined through Muhammad Arshad, 154/C, PW. On the same day, after postmortem examination, the Investigating Officer took into possession the last worn clothes of Mst.Azra (deceased) and Ahmad Maroof (deceased) through recovery memos (Exh. PC and Exh. PD) respectively. On the same day, the Investigating Officer handed over the dead bodies of both the deceased to Maroof Ahmad, complainant, vide receipt (Exh. PQ). On 27.02.2010, the Investigating Officer arrested Ghulam Sabir (accused) in this case and obtained his physical remand from the learned Illaqa Magistrate. On 11.03.2012 after making disclosure, Ghulam Sabir (accused) got recovered repeater (P- I). license (P-2) which were taken into possession by the Investigating Officer vide recovery memo (Exh. PB). The Investigating Officer prepared rough site plan of the place of recovery (Exh. PB/1). He deposed that on 30.03.2010, Umar Daraz, S.1./ Investigating Officer summoned Muhammad Din Abid, draftsman (PW-11) who on the pointations of the prosecution witnesses and directions of the Investigating Officer took rough notes of the place of occurrence and thereafter prepared scaled site plan (Exh.PR and Exh. PR/ I)). He stated that on 22.03.2010 on receipt of report .from the office of Chemical Examiner regarding the bloodstained earth of Azra Parveen and Ahmad Maroof (deceased), the Investigating Officer recorded statements of the PWs under Section 161, Cr.P.C. He further deposed that on 25.03.2010, the Investigating Officer put up case file before him for preparation of incomplete challan, as such; he prepared incomplete challan while declaring Ghulam Sabir (accused) guilty. He stated that Muhammad Amjad (accused) was found innocent in this case and as such his name was placed in column No.2 of the report under section 173, Cr. P. C. and he verified the investigation carried out by the Investigating Officer. He stated that on 02.04.2010 on receipt of report of Chemical Examiner qua bloodstained earth of Najma Parveen (injured), the Investigating Officer recorded statements of the PWs under section 161, Cr.P.C.

5. During the course of investigation, having found Ghulam Sabir (appellant) guilty, the Investigating Officer prepared report under section 173, Cr.P.C. while placing his name in column No. 3 whereas-having found Muhammad Amjad (appellant) innocent, placed his name in column No.2 and sent the same to the court of Sessions en-routed through the Illaqa Magistrate as provided under Section 190 (2), Cr.P.C. On 05.10.2010, learned Additional Sessions Judge, Chishtian, formally charge sheeted the appellants to which they pleaded not guilty and claimed trial. Prosecution in order to substantiate its case produced as many as eleven (11) prosecution witnesses.

6. Occular account in this case has come out from the statements of Maroof Ahmad, complainant (PW-1) and Mst. Najma Parveen, injured (PW-2). Muhammad Din Abid, draftsman (PW-11)) had prepared scaled site plan of the place of occurrence. Investigation in this case was carried out by Muhammad Daraz, S.I. (since dead), on whose behalf Pervaiz Akhtar, Inspector (PW-10) appeared as secondary evidence.

7. On 16.02.2010 at 12:30 p.m. Dr. Shaista Parveen (P W-7) had conducted postmortem examination upon the dead body of Azra Parveen (deceased) and observed following injuries:-- Injuries:-- According to police report, Injury No.2, which is wound of entrance. Lacerated wound 5 cm x 4 cm with inverted margin, deep going to thoracic cavity in between the two scapular regions on back of the body. Dissection of the entry wound. There was a hole of 5 cm x 4 cm between two scapulae. All the muscles of the region were crushed. Fourth, fifth, sixth thoracic vertebras were crushed and fractured. There was fracture of fifth, sixth, seventh, eighth ribs on left side on back of body. Hole was going inside the thoracic. Plastic cartridges two in number were present in the thoracic cavity. There were other three wounds 1 cm x 1 cm into a deep going thoracic cavity on lower part of left scapular region on back. There were three pallets present on his three wounds. Dissection of these wound were going to thoracic cavity and fracturing the lower and of left scapular. Injury No.

1. Wounds of exit, 8 in number. Eight in number in front of chest and on left breast. Each 2 cm x 1 cm with everted margins. On dissection of wounds, there was a hole of 5 cm x 3 cm over mid sternal and left side of upper chest. External and internal intercostal muscles were crushed. 1st, 2nd, 3rd, 4th, ribs from front on left side were fractured. Their cartridges at their thoracic cavity with sternum were crushed. Sternum was also fractured at this level. In thoracic cavity, left lung was crushed. Right lung was healthy and pale. Heart right and left atria were ruptured. Thoracic cavity was full of clotted blood". Cranium and Spinal Cord. Scalp and skull were healthy. Vertebra 4th, 5th, 6th thoracics vertebras were fractured. Membrane and Brain were healthy and pale. Spinal cord at the level of 4th, 5th, 6th, thoracic vertebras was fractured. Thorax. Multiple holes in front of chest wall. A big hole on back of chest wall with three other holes on back, left side at scapular region. 1st, 2nd, 3rd, 4th ribs on left side fractured. 5th, 6th, 7th, 8th ribs from back fractured. Pleurae. Ruptured. Larynx and trachea were healthy and pale. Right lung was healthy and pale. Left lung was ruptured. Pericardium and heart. Right and left stria were ruptured. Blood vessels normal. Abdomen. Walls of the abdomen were healthy and pale. Peritoneum, healthy and pale. Mouth, pharanyx and Osophagus, healthy, pale. Diaphragm, healthy and pale. Stomach, healthy pale, full of semi digested food material. Pancreas healthy and pale. Small and large intestine healthy and pale, containing gases and foetal matter. Liver, spleen healthy and pale. Kidney, healthy and pale. Bladder was containing 20 to 30 CC Urine. Organ of generation, external and internal, healthy and pale. Muscles, Bones, Joints. Already described. FINAL OPINION. After thorough external and internal examination of dead body of a female, I was of the opinion that cause of death in this case was cardio respiratory failure due to excessive haemorrhage shock and rupturing of the vital organs i.e. heart and lungs from injury Nos.2 and 1 which is sufficient in ordinary course of nature to cause death. All injuries were ante mortem in nature and were caused with firearm weapon. Time between injury and death instantaneous. Between death and postmortem, four hours.

8. On the same day, Dr. Shaista Parveen (PW-7) also medically examined Mst.Najma Parveen. (injured) and observed following injuries on her body:- Multiple firearm injuries over dorsum of left hand and forearm. Distill neuro vascularity. It was alright. Injuries were of entry wound and exit wound. Injury No.1 (a). Lacerated wound with inverted and burnt margin. On posterior aspect of base of left thumb. (b). Lacerated wound with averted margin and skin deep on lateral and posterial aspect of left wrist making a trap with 1(a). It was exit wound. II (a). Lacerated wound 1 cm x 1 cm with inverted margin. Entry wound. Bone deep medial and posterior aspect of left wrist making a track with 2-b. II (b). Lacerated wound of 2 cm x 1 cm into skin deep with averted margins on back of left lower forearm 3 cm in lateral 11(a). Exit wound. III (a). Entry wound. Lacerated wound 1 cm x 1 cm with inverted margin bone deep 5 cm below the above injury over postural aspect of left forearm. III (b). Exit wound. Lacerated wound with averted margins 1 cm x 1.1/2 cm in muscle deep over posterial aspect of left forearm. 4 cm lateral to entry wound. IV (a). Entry wound 1 cm x 1 cm into muscle deep. Inverted margins on posterial and middle aspect of left forearm. IV(b). Lacerated wound 1 cm x 1 cm into muscle deep with averted margin. 4 cm lateral to entry wound of posterial aspect of forearm. Injuries were KUO and caused by firearm. Duration was within two hours. Case was referred to BVH, Bahawalpur. After the receipt of reports from BVH, Bahawalpur regarding the injuries which were KUO, the same were declared as:- 1 (ab) Ghair Jayyfa Hashima. 2 (ab) Ghair Jayyfa Madeha. 3 (ab) Ghair Jayyfa Madeha. 4 (ab) Ghair Jayyfa Mutlahima.

9. On the same day i.e. 16.02.2010, Dr. Ghazanfar Mehmood (PW-8) had conducted postmortem upon the dead body of Ahmad Maroof (deceased) and found following injuries on his body:- Injury No.1 (a). A lacerated wound 1 cm x 1 cm into deep going on left side of chest 4 cm below left clavical in mid clavicular line circular in shape with inverted margin. No burning of blackening present. Corresponding hole present in clothes on exploration muscles of interior chest was perforated. Third rib fractured, anteriorly. Pleura on left side and left lung perforated. Diaphragm perforated on right side. Liver and large gut were perforated. Injury No.1 (b). A lacerated wound 1 cm x 1 cm into going on left chest below left clavical in mid clavicular line, circular in shape with inverted margin. No burning or blackening present around wound. Correspondent hole present on clothes. On exploration, muscles of anterior chest wall perforated. Pleura on left side and heart perforated. Left lung perforated. Diaphragm on right side perforated. Liver perforated. Large gut perforated on right side. Injury No.1 (c). A lacerated wound 1 cm x I cm into deep doing on chest in mid axillary line on left side. 10 cm towards left from nipple. Circular in shape with inverted margin. No burning or blackening present on wound. Corresponding hole was present on clothes. On exploration, muscles of chest wall perforated. Pleura perforated on left side. Heart perforated. Left lung perforated. Diaphragm, liver, small intestine, large gut, right kidney perforated. Injury No.2 (a). A lacerated wound 1.3 cm into 1.2 cm into deep going on anterior side of left shoulder with inverted margin. Oval in shape. No burning or blackening present around wound. On exploration, muscles blood vessels and nerves perforated. /1/1uscles of left chest was perforated. Pleural left lung, heart, diaphragm, liver small intestines perforated. Injury No.2 (b). A lacerated wound, 1.2 cm, x 1 cm into deep going on inner side of left shoulder joint with inverted margin oval in shape. No burning or blackening present around wound. Corresponding hole were present on cloths. On exploration, muscles, pleura, left lung, heart, diaphragm, small and large gut perforated. Injury No.3 (a). A lacerated wound 1.2 x 1.2 cm into deep going with everted margin, present at right lumber region, 4 cm away from mid line. No burning or blackening were present around wound. On exploration, muscles were perforated. Injury No. 3(a) is continuation of 1(a) corresponding hole present in clothes. Injury No.3 (b) A lacerated wound 1.2 cm x 1.2 cm into deep going with everted margin, present at right lumber region. 6 cm away from mid line. No burning or blackening present around wound. On exploration, muscles were perforated. Injury No.3 (b) is continuation of injury No. 1(b). Corresponding holes were present on clothes. Injury No.3 (c). A lacerated wound 1.2 cm x 1.2 cm deep going with averted margin. Present at right lumber region. 10 cm away from mid line. No blackening or burning present around wound. Corresponding hole was present on does. Injury No.3 (c) is continuation of 3 (a). Injury No.3 (d). A lacerated wound 1.5 cm x 1.2 cm into deep going on back of abdomen. 2 cm towards right from mid line with everted margin. No burning of blackening present around wound. Corres-ponding hole was present on clothes. Injury No.3 (d) is continuation of injury No.2 (b). Injury No.3 (e). A lacerated wound 1.5 cm x 1.4 cm deep going. On back of abdomen, 3 cm towards left from mid line with averted margin. No burning or blackening present from wound. Corresponding hole present on cloths. Injury No.3 (e) is continuation of 2 (a). After conducting the post-mortem examination, the doctor rendered the following opinion: - "After thorough external and internal postmortem examination, I am of the opinion that injury Nos.1, 2, 3 collectively are the cause of death, leading to haemorrhage, hypovolemic shock, cardiopulmonary arrest and final death. Injury Nos.1, 2, 3 are sufficient to cause death in ordinary course of nature. All the injuries were ante mortem in nature and were caused by firearm. Time between injury and death within ten minutes. Between death and postmortem six hours".

10. On 13.11.2012 after tendering in evidence report of Chemical Examiner regarding bloodstained earth of Ahmad Maroof (deceased) (Exh.PS), report of Chemical Examiner regarding bloodstained earth of Azra Parveen (deceased) (Exh.PT), report of Chemical Examiner regarding bloodstained earth of Najma Parveen, injured (Exh.PU), report of Forensic Science Laboratory (Exh.PV) and report of Serologist (Exh.PW), learned DDPP closed the prosecution evidence.

11. The appellants were examined under section 342, Cr.P.C., wherein they opted neither to appear as witness of their own in terms of section 340(2), Cr.P.C. in disproof of allegations levelled against them in the prosecution evidence nor opted to adduce evidence in their defence. While replying to the question why this case against him and why the PWs deposed against him, Ghulam Sabir (appellant) made following deposition:- "PWs are closely related inter-se and are highly inimical towards me and my co-accused due to the reason of matrimonial dispute. In fact, no PW as alleged by the complainant was present at the time of occurrence at the place of occurrence. The FIR was got registered on false and baseless allegation just only to blackmail me and co-accused. In fact, some unknown dacoits entered in the house of complainant and they committed dacoity and on the resistance they made fire, which hit Ahmad Maroof, Azra Parveen and Najma Parveen and subsequently complainant was summoned from his shop and subsequently they in connivance with each other fabricated a false story. Father of complainant, mother and wife of the complainant were present in the house as they did not support the false version of the complainant and due to this reason their statements were not recorded and subsequently, complainant party fabricated false witnesses after calling them from their place of residence. I and my co-accused have no concern whatsoever about the occurrence. Muhammad Amjad co-accused is my brother in law (behnoi), who during investigation was declared innocent by the police as his presence was not established at the time of occurrence at the place of occurrence. Complainant party falsely got me challaned in this case. We have no previous enmity with the complainant party". While replying to the similar question, Muhammad Amjad (appellant) deposed:-- "I reply on answer of my co-accused Ghulam Sabir".

12. Learned trial court after evaluating the evidence available on record found version of the prosecution proved beyond shadow of o reasonable doubt against the appellants resulting into their conviction in the afore-stated terms.

13. Learned counsel for the appellants while opening his arguments contended that the impugned judgment has been passed by the learned trial court in a slipshod manner without adverting to the facts of the case, which even otherwise is in sheer violation to the evidence available on the record. It was argued that the ocular account in this case is shaky and do not inspire confidence. It was next argued that both the prosecution witnesses of ocular account had made dishonest improvements while making their statements before the learned trial court, which squarely hampers the prosecution version as such the same cannot be termed to be proved by any stretch of imagination. It was contedded that the ocular account in this case is pregnant with so many doubts which has contradicted medical evidence on salient features. Learned counsel went on arguing that the report of Forensic Science Laboratory is defective as there is no chain qua sending the empties to the Office of Forensic Science Laboratory which shatters the prosecution version to the hilt. It was contended that the distance as disclosed in the site plan does not commensurate with the ocular account as two plastic cartridges were recovered from the body of one of the deceased which speaks otherwise. Learned counsel argued that though Najma Parveen, injured PW, was residing with her parents being deserted from her own house by her husband, but the prosecution had failed to disclose any immediate motive for such like incident and such aspect raises question qua the authenticity of the prosecution version. It was submitted that the number of injuries do not commensurate with the number of fire shots alleged by the prosecution witnesses, which aspect too nullify the prosecution stance. It was contended that statements of Abdul Majeed and Bashir Hussain, eye-witnesses were withheld by the prosecution for the reasons best known to it and had they appeared before the learned trial court, they ought not to have supported the prosecution version. Learned counsel for the appellants finally argued that in view of the aforesaid submissions, the prosecution has miserably failed to establish its case against the appellants beyond shadow of reasonable doubt, therefore, conviction and sentence recorded by the learned trial court against the appellants had no sanctity and as such they are entitled to their clean acquittal from the instant case.

14. On the other hand, learned Law Officer assisted by learned counsel for the complainant had opposed the contentions advanced by learned counsel for the appellants. It was argued that it is a promptly lodged crime report in which details of the occurrence had minutely been mentioned by the prosecution. It was next argued that there is a very strong motive to commit the crime. It was contended that recovery of crime empty was found to be wadded with the weapon of offence recovered from Ghulam Sabir (appellant) which was licensed one and as such report of Forensic Science Laboratory strengthens the prosecution version to the hilt. It was argued that there is statement of Mst.Najma Parveen, injured PW, which cannot be brushed aside and the same in isolation is sufficient to record conviction. It was submitted that though one of the appellants namely Muhammad Amjad, who was declared innocent by the Investigating Officer and his name was placed in column No.2 of the report under section 173, Cr.P.C. was rightly summoned by the learned trial court on the basis of material available on the record. It was contended that Muhammad Amjad (appellant) had failed to substantiate his plea of innocence by adducing any cogent and reliable evidence. In such backdrop, it was argued that as the learned trial court while attending each and every aspect of the case on the touchstone of evidence available on the record rightly inflicted normal penalty of death sentence upon the appellants provided under the statute, therefore, the same calls for no interference by this Court.

15. Arguments advanced from both sides have been heard. We have also gone through the record available on file with the able assistance of learned counsel for the appellants, learned counsel for the respondents as well as learned Deputy Prosecutor General assisted by learned counsel for the complainant.

16. It is cardinal principle of law that each criminal case has its own peculiar facts and circumstances and that has to be weighed on the judicial parlance while taking into consideration all the facts and circumstances brought-forth. The ocular account in this case has been furnished by by Maroof Ahmad, complainant (PW-1) and Mst. Najma Parveen, injured (PW-2). Both these prosecution witnesses are real brother and sister and they have claimed that they had seen the occurrence. While appearing in the witness box as (PW-1), Maroof Ahmad, complainant has claimed that he was present in western portion of the compound (ihata) of the house whereas the occurrence had taken place in the eastern portion of the compound of the house. He stated that after hearing the fire reports and hue and cry, he along with Abdul Majeed and Bashir Hussain, PWs (not produced) attracted to the spot. It is an admitted fact that both the appellants had made only one fire shot each. Both the prosecution witnesses are unanimous on this aspect of the case. However, this very aspect of the case is contradicted by the medical evidence on so many aspects i.e. number of injuries, dimension of injuries as well as inter-se distance between the assailants and the deceased and the injured PW. So far as the number of injuries is concerned, two plastic cartridges were recovered from the thoracic cavity of Mst. Azra Parveen (deceased), which has clearly been mentioned by Dr. Shaista Parveen (PW-7) in her statement. Both the prosecution witnesses had claimed that the fire shots were made from a very close range of 4/5 feet whereas according to the site plan placed on the record as (Exh.PR), the inter-se distance between the assailants and the deceased as well as injured PW is fifteen feet. The statements of the prosecution witnesses made before the learned trial court, wherein they had reduced the distance as compared to site plan seems to be under the advice of their counsel as the same has been done intentionally just to bring the case of the prosecution in line with the medical evidence. The claim of Mst. Najma Parveen, injured (PW-2) is that the fire shot made by Ghulam Sabir (appellant) had hit on the chest of her sister Mst.Azra Parveen (deceased) and on her left arm. She stated that Mst.Azra Parveen (deceased) was sitting on a cot at the time of occurrence. She claimed that on seeing the accused persons, she ran towards kitchen to save her life and she was injured when she was entering the kitchen and her one footstep was in the kitchen. She stated that accused firstly made fire upon Mst. Azra Parveen (deceased) and some pallets hit her and the injuries were sustained by her from a distance of 4/5 feet. Bare perusal of site plan reflects the distance between the assailants as well as the deceased and injured PW to be fifteen feets. Moreover, the accused persons were standing towards northern side while Mst.Azra Parveen was on southern side whereas the kitchen is situated towards eastern side. Meaning thereby that the location of Mst. Najma Parveen, injured (PW) as well as Mst.Azra Parveen (deceased) was not on the same alignment, as such the quistion of coming under the line of same fire shot does not arise. Such contradiction makes the prosecution case highly doubtful. Reliance in this regard is placed upon the dictum of law laid down by the august Supreme Court of Pakistan in the case of 'Abdul Majid alias Jaidu and others v. The State' (1996 SCMR 333) wherein it has been held as under:-- "Ocular evidence that injuries to deceased were inflicted by three convicts, would be reliable when it stands corroborated by medical evidence." Similar view was affirmed by the august Supreme Court of Pakistan in the case of Mst. Jallan v. Muhammad Riaz and others PLD 2003 SC 644 wherein it was observed:-- "Contradiction between ocular evidence and medical evidence would create doubt in prosecution case benefit of which would go to no one except the accused". Furthermore, both the prosecution witnesses of ocular account had contradicted each other qua duration of occurrence. Mst. Najma Parveen (PW-2) had stated that the occurrence continued for half an hour and also claimed the presence of the assailants (appellants) at the place of occurrence. This aspect of the prosecution case do not appeal to reason because as per statement of the complainant, after firing one shot each by the accused persons, he along with other PWs attracted at the spot and tried to apprehend them, but they fled away. PW-2 also claimed that a large number of persons from the vicinity had attracted at the place of occurrence although she failed to give the exact number of persons, but the story advanced by the prosecution regarding mode, manner of occurrence and the presence of prosecution witnesses as well as the witnesses from the vicinity contradict each other on salient features making the prosecution case highly doubtful. The contention of learned counsel for the appellants that the complainant was not present at the spot and he was called upon lends support from the statement of the complainant wherein he has claimed that he has opened a shop nearby whereas Mst. Najma Parveen (PW-2) has contradicted the complainant qua inter-se distance between the house and the place of working of PW-1. The argument of learned counsel for the appellant regarding the absence of the complainant at the place of occurrence is further supported from the fact that the complainant has claimed that he remained at home even when Mst. Najma Parveen was shifted to hospital and he approached the hospital after 2/3 hours. The conduct of the complainant in evacuating the injured PW to hospital as she was seriously wounded does not inspire confidence and is termed as unnatural conduct. Hence, it raises serious doubts regarding his presence as well as seeing the occurrence. If such circumstances are taken into consideration conjointly with the other attending circumstances of the instant case, it makes presence of prosecution witnesses at the spot at the relevant time doubtful. It is settled principle of law that ocular evidence should be excluded from consideration when presence of eye-witnesses on the spot is doubtful. Reliance in this regard is placed upon the dictum of law laid down in the case of Ghulam Mustafa v. The State 1995 SCMR 1735 herein it has been held as under:-- "Ocular evidence should be excluded from consideration when there is no judicial certainty or circumstantial guarantee about presence of eye-witnesses on spot".

17. As far as statement of Mst. Najma Parveen, injured (PW-2). is concerned. It is an admitted fact that the injuries sustained by (PW-2) could reflect that she was present at the spot at the time of occurrence, but it cannot guarantee whether whatever she had stated before the learned trial court is based upon truth. It is established principle of law that the statement of injured PW has to be scrutinized with more care and caution because of the reason that after sustaining the injuries the vindictiveness of the injured PW might enhance due to the misery suffered by her coupled with her desertion from the house of her husband (appellant). In the, instance case, as there is nothing available on the record in the shape of independent corroboration in support of the statement of the injured PW, therefore, the same is also considered to be insufficient to meet the ends of justice, hence, the same is discarded being full of doubts. Reliance in this regard is placed upon the dictum of law laid down in the case of 'Altaf Hussain and 4 others v. The State' (PLD 2000 Lahore 216), wherein it has been held as follows:-- "

Ss. 302 (b), 324, 440, 148 & 149

Appreciation of evidence

Credence of witness-Factors to be kept in view

Injury on the person of witness

Effect

Principles and guidelines for assessment of evidence stated. Believability and acceptability of a witness depends on numerous factors, being injured is just one of them. The injury on the person of a witness does not transform his nature, or his attitude, or mentality. This would make him more vindictive. The injury primarily proves one fact only and that is, that he was present at the scene of crime but it by no stretch of imagination proves him to be right or truthful. Where a witness is biased, and inimical towards the opposite party his testimony has to be scrutinized with care and corroboration of prosecution case in all of its material aspects is required. The principles and guidelines for assessment of evidence were that different constituent factors of prosecution case must support each other and no single factor would suffice for recording conviction unless the same was corroborated in material respects by other constituent factors or elements. In serious cases entailing harsh sentences a single factor, in itself, would provide too narrow a foundation to base conviction of an accused. Evidence of witnesses of fact, who were injured in the incident, is just one factor or facet of prosecution case. Viewed in isolation, it might give impression of a plausible story to an untrained mind, but examined in a proper ambience, its seamy side would become palpable immediately".

18. So far as the motive in this case is concerned. It is claim of the prosecution witnesses that Mst. Najma Parveen, injured (PW-2) was in fact married to Ghulam Sabir (appellant) since 13/14 years ago, but she was living with her parents being deserted by her husband Ghulam Sabir (appellant) from his house. The houses of both the parties are adjacent to each other. It is an admitted fact that so many pcinchayats were convened wherein Ghulam Sabir (appellant) had made attempt to take away his wife with him, but all his efforts in this regard proved futile. When this was going on since one year without any untoward incident, then the cause which prompted the appellant to commit such a heinous offence has not been brought on the record by the prosecution. However, the plea of the defence that in those days there were serious incidents of dacoitees and robberies in the area which was replied in affirmative by the prosecution too further lends support to the fact that the occurrence might have been committed by unknown accused persons. Moreover, Muhammad Amjad (appellant No.2) was found innocent by the Investigating Officer during the course of investigation and as such his name was placed in column No.2 of the report under section 173, Cr.P.C. The premium of innocence rendered in favour of Muhammad Amjad (appellant) had never been challenged by the prosecution before any forum leaving a question mark regarding the genuineness of the whole prosecution version. Even no corroborative evidence is available on the record against him to connect him with the crime alleged except the bold allegation of making a fire shot resulting into death of Ahmad Maroof, a child of tender age.

19. Another important aspect of this case is that statements of Abdul Majeed and Bashir Hussain, eye-witnesses, were withheld by the prosecution for the reasons best known to it. In such backdrop, argument of learned counsel for the appellants that if he would have been produced before the court, it was obvious that he would not have supported the prosecution version seems plausible. In such circumstances, the prosecution case is squarely hit by the Article 129(g) of Qanun-e-Shahadat Order, 1984, as is held by august Supreme Court of Pakistan in the case of Lal Khan v. The State (2006 SCMR 1846) in the following terms:-- "

Art. 129(g)

Criminal trial

Withholding natural witness

Presumption

Act of withholding of most natural and a material witness of occurrence would create an impression that had such witness been brought into witness-box, he might not have supported the prosecution

Prosecution, in such eventuality must not be in a position to avoid the consequence".

20. So far as recovery of repeater from Ghulam Sabir (appellant) is concerned. It is worth mentioning here that only one empty was recovered by the Investigating Officer from the place of occurrence on 16.02.2010, which as per report of Forensic Science Laboratory had matched with the gun recovered from Ghulam Sabir (appellant), but this Court cannot lose sight of the fact that none of the police official had claimed that he transmitted the parcel of empty to the Office of Forensic Science Laboratory. Khalid Mehmood, 27/C (PW-5). claimed to have collected the bloodstained earth from Moharrir for its onward transmission to the Office of Chemical Examiner, but the empty collected by the Investigating Officer, which was deposited with the Moharrir of the police station, was not sent to the Office of Forensic Science Laboratory, for the reasons best known to the prosecution. Even said prosecution witness (PW-5) had never claimed that he was the person who in fact transmitted the empty to the Office of Forensic Science Laboratory. Hence, breaking the link of sending the parcel to the quarters concerned for analysis. Even otherwise, it is settled principal of law that recovery by itself without any corroboration is not a substantial piece of evidence and the same does not itself prove the offence. The recovery is deemed to be corroborative in nature and it is used for support of direct evidence and as per dictates of justice whenever direct evidence is disbelieved it would not be safe to maintain conviction on confirmatory evidence. Reliance in this regard is placed upon the dictum of law laid down in the case of Muhammad Jamil v. Muhammad Akram and Bothers (2009 SCMR 120), the august Supreme Court of Pakistan had held as under:-- "

S. 302(b)

Appreciation of evidence

Principle

In a case of direct evidence other pieces of evidence are used for corroboration or in support of direct evidence

When direct evidence is disbelieved, then it would not be safe to base conviction on corroborative or confirmatory evidence". In the case of M. Hassan v. Ghulam Rasool (2009 PCr.LJ 940), it has been held as under:- "

Ss. 302/ 324/ 148/ 149/ 109

Evidence

Recovery

Recovery of weapon of offence by itself without any other corroborative evidence especially when the other cognate factors also do not support the point at issue, is not a substantial piece of evidence".

21. In the instant case after examining the prosecution case from all corners and evaluating it on the touchstone of interpretation of dictum of "safe administration of criminal justice" this Court has arrived at the conclusion that in this case the prosecution has miserably failed to establish its case against the appellant beyond reasonable doubt.

22. Moreover, it is established principle of law that for extending the benefit of doubt in favour of the accused, so many circumstances are not required, rather one circumstance which creates reasonable doubt in the veracity of the prosecution version, can be taken into consideration for the purpose, not as a matter of grace, rather as a matter of right. Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the cases of "Tariq Pervez v. The State" (1995 SCMR 1345) "Riaz Masih alias Mithoo v. The State" (1995 SCMR 1730) and "Muhammad Akram v. The State" (2009 SCMR 230). In the case of "Tariq Pervez v. The State" (1995 SCMR 1345), the august Supreme Court of Pakistan has held as under:-- "

Art.4

Benefit of doubt, grant of

For giving benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubts

If a simple circumstance creates reasonable doubt in a prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right".

23. From the facts and circumstances narrated above, we are persuaded to hold that prosecution has badly failed to substantiate its case against the appellants to the hilt and the learned trial court was not justified in convicting them while basing upon such untrustworthy/ uncorroborated evidence, which even otherwise is full of material contradictions especially contradiction in ocular and medical evidence and other circumstances discussed supra, and conviction passed by the learned trial court in the circumstances is against all canons of law recognized for the dispensation of criminal justice. As per dictates of law benefit of every doubt is to be extended in favour of the accused. Moreover, it is golden principle of law that the Court may err in letting off 100 guilty but should not convict one innocent person on the basis of suspicion. Resultantly while setting aside the conviction and sentence recorded by the learned trial court in terms of judgment dated 30.11.2012, Crl. Appeal No. 400/2012 filed by Ghulam Sabir and Muhammad Amjad (appellants) is ACCEPTED IN TOTO. Consequently they are ordered to be acquitted of the charge in this case. They be released forthwith if not required to be detained in any other case. Murder Reference No.62/2012 forwarded by the learned trial court for confirmation of sentence of death inflicted upon Ghulam Sabir and Muhammad Amjad/convict fails, which is answered in NEGATIVE Death sentence is NOT CONFIRMED. HBT/G-23/L Appeal accepted.