2017 PLP 28 (YLRN)

ABDUL SAMI KHAN, J.

This judgment shall dispose off Criminal Appeal No.02-J of 2012 titled as Allah Nowaz v. The State" filed by the appellant and Reference under section 374, Cr.P.C. sent by the learned trial Court for confirmation or otherwise of the death sentence of the appellant, which has been numbered as Murder Reference No.402 of 2010 titled as "The State v. Allah Nawaz" as both these matters have arisen out of one and the same judgment dated 29.05.2010.

2. Allah Nawaz appellant was tried in case FIR No.28/2001 dated 29.05.2001 for the offence under section 302/34, P.P.C., registered at Police Station Chakrala, District Mianwali by the learned Additional Sessions Judge, Mianwali who vide judgment dated 29.05.2010, convicted Allah Nawaz under section 302(b), P.P.C. for the murder of Muhammad Shafiq deceased and sentenced him to death. He was directed to pay compensation of Rs.2,00,000/- under section 544-A, Cr.P.C. to the legal heirs of the deceased, in default whereof, he shall further undergo imprisonment for six months.

3. Brief facts of the case as stated by Muhammad Rafiq complainant (PW-6) in his statement recorded by Muhammad Asghar the then S.I. (PW-13), on the basis whereof FIR (Ex-PH) was registered at Police Station Chakrala are that the complainant was a resident of village Chakrala and was a cultivator by profession. On the fateful day, at "deegar vela", he along with Muhammad Shafiq his brother, Ahmad Khan and Sardar Khan were proceeding to Dhok Madu Wali to inquire about the health of Aulia Khan and when they reached near Dhibba Landhanwala Dera Khalil Khan situated in the area of village Khund, suddenly Gulbaz armed with rifle and Allah Nawaz armed with pistol .30 bore emerged there and raised "lalkara" that they had come to teach Muhammad Shafiq a lesson for giving evidence. Due to fear, Muhammad Shafiq ran towards a nearby "bun" and in the meanwhile, Allah Nawaz made fire with pistol .30 bore, hitting Muhammad Shafiq on forehead at left side. Gulbaz fired with rifle, which hit Muhammad Shafiq on left armpit and then Allah Nawaz made another fire shot with pistol .30 bore, which landed on the left side on ribs of Muhammad Shafiq, as a result of which he fell down. He (complainant) and his companions Ahmad Khan and Sardar Khan did not go near due to fear of lives. Gulbaz and Allah Nawaz while making firing fled away towards east. Muhammad Shafiq succumbed to the injuries at the spot. Motive behind the murder of Muhammad Shafiq deceased was that two years prior to this occurrence, the deceased had recorded evidence against Ahmad Nawaz, son of accused Gulbaz and brother of accused Allah Nawaz and due to the evidence of the deceased, Ahmad Nawaz had been convicted. Due to this grudge, Allah Nawaz and Gulbaz murdered Muhammad Shafiq with their common intention.

4. After the registration of FIR (Ex.PH), the investigation of this case was conducted by Riaz Ahmad Inspector (PW-11) and after completion of the investigation, the report under section 173, Cr.P.C. was submitted against Allah Nawaz appellant.

5. At the commencement of the trial, the learned trial court after supplying copies of the documents required under section 265-C, Cr.P.C. to the appellant framed the charge under sections 302/34, P.P.C. against him on 27.10.2009 to which he pleaded not guilty and claimed trial. To substantiate its version at the trial, the prosecution produced as many as thirteen witnesses. Ocular account was furnished by Muhammad Rafiq complainant (PW-6) and Ahmad Khan (PW-7). They have supported the prosecution version. Riaz Ahmad Inspector (PW-11) is the investigating officer. He has testified about the investigation conducted by him.

6. Dr.Mehr Khan, Medical Officer (PW-4) on 29.05.2001 had conducted postmortem examination on the dead body of Muhammad Shafiq and found the following injuries:-

1. An entry wound of fire arm with blackening and burning around 3 x 2-1/2 CM on left side of chest, 8 cm below the auxiliary pit and 8 cm outer to the left nipple.

2. An entry wound of fire arm with blackening and burning around 3 x 2-1/2 cm on lower and outer side of front of left chest, 8 cm below the left nipple and 10 cm from mid-line.

3. Four exit wounds of fire arm 1/2 cm x 2/3 cm in area of 8 cm x 7 cm over the front of mid chest lower part just above the epigastic fossa.

4. Two exit wounds of fire arm 1/2 x 2/3 cm being 4 cm apart one over the other over the right mid clerical area.

5. An entry wound of fire arm 1/2 x 1/2 cm on the outer and upper part of left fore head, 3 cm above left eye brow and 8 cm from mid line.

7. According to the doctor, the cause of death was due to severe haemorrhage and shock caused by injuries Nos.1, 2 and 5, which were sufficient in ordinary course of nature to cause death. All the injuries were ante-mortem and were caused by firearm weapon. Probable time that elapsed between injuries and death was immediate and between death and postmortem examination was 4 to 8 hours.

8. After tendering in evidence the report of Chemical Examiner Ex.PX and the report of Serologist Ex.PY, the prosecution closed its evidence.

9. The appellant in his statement recorded under section 342, Cr.P.C. professed his innocence and pleaded false implication in the case. In reply to question that "why the case against you and why the PWs have deposed against you?" he stated as under: "I have been involved in this case with my father due to previous murder enmity and also due to suspicion as the occurrence was an unseen."

10. The appellant did not opt to record his statement under section 340(2), Cr.P.C. in disproof of allegations leveled against him by the prosecution, rather produced copy of judgment dated 27.01.2009 passed by this Court in Criminal Appeal No.306-J of 2003 in his defence.

11. At the end of the trial, after thrashing the entire evidence and evaluating the arguments advanced by the learned counsel for the parties in support of their respective versions, the learned trial court found the prosecution's case against the appellant to have been proved beyond reasonable doubt, convicted and sentenced him as mentioned and detailed in paragraph No.2 above. Hence, the present appeal and the connected Murder Reference before this Court.

12. Learned counsel for the appellant, in support of this appeal, contends that the judgment passed by the learned trial Court in this case is against law, facts and material available on the file; the appellant has been falsely implicated in this case merely on the basis of suspicion and due to previous enmity; the alleged eye-witnesses were not present at the spot at the time of occurrence and it was an unseen occurrence; there are lot of discrepancies between statements of prosecution witnesses recorded by the learned trial Court during the trial, so the conviction and sentence of the appellant cannot be maintained on the basis of statements of prosecution witnesses; there are material contradictions between the ocular account and medical evidence; the complainant and the alleged eye-witness in their statements during the trial have made dishonest improvements in order to bring their testimony in line with the medical evidence; the eye-witnesses had departed from the stance taken by the complainant in the F1R and introduced new facts, which has made them false and untruthful witnesses; the appellant is absolutely innocent in this case and the evidence produced by the prosecution suffers from material irregularity; co-accused of the appellant namely Gulbaz has already been acquitted by this Court and his judgment of his acquittal was upheld by Hon'ble Supreme Court of Pakistan, so the appellant, who has been assigned an identical role in the commission of alleged occurrence by the complainant and the PWs also deserves the same treatment; no cogent evidence was produced by the prosecution to establish its case; the eye-witnesses are related inter se as well as to the deceased, therefore, they are not only interested but also inimical witnesses and their evidence cannot be relied upon without strong and independent corroboration which is very much lacking in this case; the recoveries allegedly effected from the appellant are highly doubtful and have been planted upon him just to strengthen the case of prosecution; the prosecution has miserably failed to prove its case against the appellant beyond the shadow of doubt; thus, this appeal be accepted and the appellant may be acquitted from the charge.

13. Conversely, learned Deputy Prosecutor General appearing on behalf of the State assisted by learned counsel for the complainant opposes the submissions made by learned counsel for the appellant and submits that the matter was reported to the police without any element of deliberation and consultation; the appellant is duly named in the promptly lodged FIR with specific role of firing at the deceased and fatal injuries are attributed to the appellant; the ocular account is duly supported by the medical evidence; apart from confidence inspiring evidence of the eye-witnesses, there is strong corroborative evidence on the file of this case in the shape of the weapon of offence recovered on the pointing out of appellant, the report of Chemical Examiner (Ex.PX) and report of Serologist (Ex.PY); the appellant remained fugitive from law for a period of more than seven years; had the appellant been innocent, he would have joined the investigation immediately after the registration of case against him; the PW's have reasonably explained their presence at the spot at the time of occurrence and inspite of lengthy cross- examination, the defence had failed to demolish their presence at the spot; the prosecution case stands proved from all corners and independent corroboration in the shape of absconsion of appellant for a considerable period is available on the record of this case; the motive is not denied by the defence rather the same is admitted; the appellant had repeated the fire shots, which clearly indicates his intention to murder Muhammad Shafiq; as there is no mitigating circumstance in this case, so the sentence of death was rightly awarded to the appellant and the same may be maintained, appeal may be dismissed and Murder Reference be answered in the affirmative.

14. We have considered the arguments advanced by learned counsel for the appellant, learned Deputy Prosecutor General as well as learned counsel for the complainant and have gone through the entire record with their able assistance.

15. The case of the prosecution is mainly based on the ocular account furnished by Muhammad Rafiq complainant (PW-6) and Ahmad Khan (PW-7), medical evidence, recoveries of weapon of offence, motive and absconsion of the appellant. Since ocular account is the most essential and vital piece of evidence on which the prosecution has to stand. Therefore, at first, we would like to discuss the veracity and validity of ocular account. The precise allegations against the appellant as incorporated by Muhammad Rafiq complainant (PW-6) in the FIR (Ex.PH) are that on the day of occurrence, he while armed with pistol .30 bore inflicted two firearm injuries on the deceased Muhammad Shafiq. We have observed that the postmortem examination on the deadbody of Muhammad Shafiq deceased was conducted by Dr. Mehr Khan, Medical Officer (PW-4). In his statement before the learned trial Court, the doctor (PW-4) deposed that during postmortem examination, he recovered a pellet from left side of head from brain matter and nine pellets from anterolateral chest wall soft tissues of right chest of the deceased. Apart from this he (PW-4) also recovered two wads (Gatta Namda) entangled in fractured lower half sternum and left lung cavity of the deceased. This fact reflects that the injuries sustained by the deceased had not been caused by pistol .30 bore. We have observed that Muhammad Rafiq complainant (PW-6) alter realizing that there was conflict between his statement under section 154, Cr.P.C. and the medical evidence made dishonest improvements in his statement before the learned trial Court in order to bring his evidence in line with the medical evidence while stating that at the time of occurrence, the appellant and his co-accused (since acquitted) were armed with guns. Same is the position of Ahmad Khan (PW-7), who also deposed before the learned trial Court that the appellant and his co-accused had inflicted firearm injuries on the person of the deceased with guns. As the improvements made by the complainant Muhammad Rafiq (PW-6) and Ahmad Khan (PW-7) in their statements recorded by the learned trial Court have been dishonestly and deliberately made in order to bring the ocular account in line with the medical evidence, which were duly confronted by the defence during cross-examination, therefore, this fact has created serious doubt about their veracity and credibility and it is not safe to rely upon the evidence of such witnesses. Guidance can be sought from the case of "Akhtar Ali and others v. The State" (2008 SCMR 6) Hon'ble Supreme Court of Pakistan has held as under:- "...... It is also a settled maxim when a witness improves his version to strengthen the prosecution case, his improved statement subsequently made cannot be relied upon as the witness has improved his statement dishonestly, therefore, his credibility becomes doubtful on the well-known principle of criminal jurisprudence that improvements once found deliberate and dishonest cast serious doubt on the veracity of such witnesses. See Hadi Bakhsh's case PLD 1963 Kar. 805." A bare perusal of the FIR (Ex.PH) as well as the statement of Muhammad Rafiq complainant (PW-6) and that of Ahmad Khan (PW-7) recorded by the learned trial Court reveals that the deceased on seeing the appellant and his co-accused ran towards a nearby "Bun" to save his life, but according to postmortem report (Ex.PB) and pictorial diagram (Ex.PB), all the injuries sustained by the deceased were found on the front part of his body, instead of back side. Similarly, according to the site plan Ex.PK, allegedly the appellant made first fire shot at the deceased from a distance of 8 karams and the second fire shot was made by him when he was 2 karams away from the deceased, but surprisingly enough the doctor has observed blackening and burning around injuries Nos.1 and

2. The above mentioned conflicts in the ocular account and medical evidence of the prosecution have created a serious doubt in the prosecution case.

16. We have also observed that co-accused of the appellant namely Gulbaz who has been attributed fire-arm injuries on the left arm-pit of deceased was convicted by the learned trial Court under section 302(b), P.P.C. and was sentenced to death vide judgment dated 30.04.2003. His conviction and sentence were challenged before this Court through Criminal Appeal No.306-J of 2003 and he was acquitted of the charge by this Court vide judgment dated 27.01.2009. According to learned counsel for the parties, the judgment of acquittal dated 27.01.2009 was challenged by the State as well as the complainant before the Apex Supreme Court of Pakistan through Criminal Appeals Nos.101-L and 102-L of 2011, which have been dismissed by the apex Court vide judgment dated 03.04.2012, thus, the acquittal of Gulbaz co-accused of the appellant has attained finality. The Apex Court in its judgment dated 03.04.2012 has also observed that the witnesses of ocular account made dishonest improvements in their statements before the learned trial Court in order to bring their testimony in line with medical evidence. We have observed that the case of Gulbaz acquitted co-accused is not distinguishable from the case of appellant rather that is identical to this case. In the circumstances when the evidence to the extent of an acquitted co-accused has already been disbelieved, it cannot be believed against the appellant until and unless the same is not supported by any other independent corroborative piece of evidence which is very much lacking in this case as we have not been able to find out any such evidence on the record. In this regard, reliance is placed on the case of Ghulam Mustafa and another v. State (2009 SCMR 916) wherein the Hon'ble Supreme Court of Pakistan, has been pleased to hold as under:- "...... In our jurisdiction it is by now well established that the legal maxim falsus in uno falsus in omnibus is not a universal principle to be applied in all criminal cases. However, according to settled case law there are exceptions and if evidence on the record warrants a doubt in the credibility of such witnesses then indeed their testimony regarding another set of co-accused is to be considered with caution and cannot be accepted without strict corroboration from other independent and credible sources. In this connection reference can be made to the case of Muhammad Nawaz v. State (1969 SCMR 132), Shafoo v. State (1968 SCMR 719) and Allah Ditta v. State (NLR 2002 Criminal 1 SC)....." The rule of corroboration came up for consideration in another case reported as Rohtas Khan v. The State (2010 SCMR 566), wherein, the Hon'ble Supreme Court of Pakistan, at page 570 has been pleased to observe as under:- ".......We are conscious of the fact that the rule of corroboration in case of interested witnesses is not an inflexible rule as held in the cases of Niaz v. State (PLD 1960 SC 387), Nazir v. State (PLD 1962 SC 269), Muhammad Ismail v. Khushi Muhammamd (PLD 1974 SC 37), Abdul Rashid v. Umid Ali (PLD 1975 SC 227) and Muhammad Ali v. State (1985 SCMR 230). However, in appropriate cases such rule can be dispensed with. In order to bring the case out of the scope of general rule the evidence of interested witness is to be scrutinized very carefully. Firstly, it is to be seen whether the witness is truthful and tested on the touchstone of inherent merit of his statement. Secondly, in the circumstances of case the statement is reasonable, probable or plausible and could be relied upon. If a statement satisfies the above requirements, then the statement of a worst enemy of the accused can be accepted and relied upon without corroboration. Reference is invited to Haroon v. State (1995 SCMR 1627) and Muhammad Rafiq v. State (1977 SCMR 457)".

17. Admittedly, there is previous murder enmity between the parties, so false implication of the appellant in this case cannot be ruled out. It has further been observed by us that in the first version before the investigating officer the appellant has claimed innocence and the same plea has been taken by him in his statement under section 342, Cr.P.C. So, keeping in view the above discussed facts and circumstances, we hold that Muhammad Rafiq complainant (PW-6) and Ahmad Khan (PW-7) were not present at the spot at the time of occurrence. They have not witnessed the occurrence by themselves, therefore, their testimony cannot be relied upon.

18. So, far as the recovery of weapon of offence is concerned, allegedly pistol .30 bore and gun .12 bore were recovered from the appellant, but in the absence of any positive report of the Forensic Science Laboratory, the recovery of weapons of offence has become inconsequential and is of no help to the case of prosecution specially when the appellant has been shown to have been armed with .30 bore pistol and there is no pellet injury on the person of the deceased. 20(sic.) So far as motive part of the prosecution case is concerned, although the defence has admitted previous enmity with the complainant party, yet the facts remain that the prosecution has failed to bring on record any independent evidence on the basis of which it can be construed that the deceased had deposed against the appellant's side in a previous murder case and for that reason he had been done to death. It is settled law that the prosecution has to prove its case by itself and it cannot rely on any version taken by the defence. Even otherwise, motive is as much attributed to the appellant as it has been assigned to his co-accused Gulbaz who has already been acquitted on the basis of same set of evidence. Even otherwise motive is a double edged weapon and cuts both ways. If enmity persuades a person to commit a crime, then it is also sufficient to falsely implicate some person from the other side. Reliance is placed upon Ghulam Mustafa v. State (2009 SCMR 916). Therefore, in our humble view the motive specifically mentioned by the prosecution in the FIR (Ex.PH) cannot be used against appellant.

21. As regards the contention of the learned counsel for the complainant that the appellant remained fugitive from law for a considerable period, which is a strong corroborative piece of evidence against him, is concerned, it is settled law by now that mere absconsion of an accused is not conclusive proof of his guilt. It is only a suspicious circumstance against an accused that he was found guilty of the offence. However, suspicions after all are suspicions and the same cannot be given the place of proof. The value of abscondence always depends on the facts of each case. The absconsion of the accused may be consistent with the guilt or innocence of the accused, which is to be decided keeping in view overall facts of the case. In Muhammad Khan and another v. The State (1999 SCMR 1220), it has been held that the abscondence itself can never remedy the defects in the prosecution case as neither it is necessarily indicative of guilt, nor is ever sufficient by itself to prove the guilt. In Rasool Muhammad v. Asal Muhammad and 3 others (1995 SCMR 1373), the Hon'ble Supreme Court of Pakistan held that abscondence can be a corroborative piece but when the ocular account furnished by the prosecution having not been found confidence inspiring, it cannot be relied upon, the abscondence alone cannot be a ground for maintaining the conviction. In the present case, we have already disbelieved the other pieces of evidence including the ocular account and thus mere abscondence of the appellant cannot be a ground for maintaining his conviction and sentence.

22. After having looked into the prosecution case from all angles we have noted that the case to the extent of the appellant is of doubtful nature and the conviction and sentence of the appellant on the basis of such type of shaky and unreliable evidence, cannot be maintained. It is settled by the Apex Court of the country that in case of doubt, its benefit must go to the accused not as a matter of grace but of right. The same proposition came up for consideration in the case reported as Muhammad Akram v. The State (2009 SCMR 230), wherein, at page 236, the Hon'ble Supreme Court of Pakistan, held as under:- "

13. The nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State (1995 SCMR 1345) that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right". (emphasis supplied).

23. It is hardly necessary to reiterate that the prosecution is obliged to prove its case against the accused beyond any reasonable doubt and if it fails to do so the accused is entitled to the benefit of doubt as of right. It is also firmly settled that if there is an element of doubt as to the guilt of the accused the benefit of that doubt must be extended to him. The rule of benefit of doubt, which is described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. So after considering, all the circumstances, this Court is of the considered view that the prosecution has failed to prove its case against the appellant beyond any shadow of doubt therefore, this appeal is allowed, the impugned judgment is set aside and the appellant is acquitted of the charge. He is behind the bars and shall be released forthwith if not required to be detained in any other case.

24. Murder Reference is answered in the NEGATIVE and sentence of death awarded to Allah Nawaz appellant is NOT CONFIRMED. HBT/A-72/L Appeal allowed.