2002 P Cr (PLP)

Since both the appeals arise out of the same incident and judgment thus, these are consolidated and will be disposed of by this single judgment. The relevant facts leading to the above‑stated appeals are that the complainant lodged an F.I.R. on 19‑8‑1989 at 5‑15 a.m. at Police Station Barnala alleging therein that on the midnight of 18th and 19th September, 1989, he was sleeping with his family members in the courtyard of his house. At about 12‑15 a.m., someone attacked upon his son Muhammad Ashraf and cut off his throat with a hatchet. Soon after cutting off his throat the accused persons fled away. On hearing the noise of their fleeing away the complainant got awakened. He further contended that it was moonlit night and he saw that one person was fleeing away towards the northern side in a Nallah situated in front of his house whereas the other one was running towards the southern side. He raised the alarm and found that the hatchet was affixed in the throat of his son, Muhammad Ashraf, deceased. He pulled out the hatchet from is throat but his son had died due to the injury of hatchet. On his hue and cry, his wife Mst. Sardari, his daughter Mst. Ishrat Bibi and his daughter‑in‑law Shamim Akhtar also got awakened. The complainant entertained the doubt that his son was killed by Muhammad. Irshad and Muhammad Shabbir. The motive claimed by the prosecution is stated to be a dispute of land between the parties. On the report‑lodged by the complainant, a case under section 5 I.P.L. was registered. During the investigation, the accused persons were apprehended by the police on 19‑8‑1989, Ejaz‑ul‑Hussain Gilani, S.‑I. Police (P.W.21) went to the spot, prepared the inquest report Exh. P.L. and sent the dead‑body for post‑mortem examination. He also prepared injury form of the deceased. He picked up and took into the possession the blood‑stained clay marked as (P.5) which he found lying near the place of occurrence, vide recovery memo. Exh. P.C. witnessed by Ch. Muhand Din (P.W.5) and Said Muhammad (P.W.6). On that very day, he also took into the possession a hatchet marked as (P.1) vide recovery memo. Exh. P.F. in the presence of Ch. Muhammad Din (P.W.5) and Nazir Ahmad (P.W.11). The recovered hatchet was got identified by Lal Hussain blacksmith (P.W.7) and Chandoo, carpenter. (P.W.8), vide recovery memo. Exh.P.E., in the presence of Ch. Muhammad Din (P.W.5) and Nazir Ahmed (P.W.11). He also prepared an identification memo. of the hatchet, Exh.P.H. in the presence of Muhammad Rasheed (P.W.9) and Nawab Khan (P.W.10): After the post mortem, the clothing of the deceased, blood‑stained trousers P.5/I., blood‑stained vest P.5/2 and blood‑stained mattress P.5/3 were taken into the possession vide recovery memo. Exh.P.K., in the presence of Ghulam Nabi (P.W.12) and Sufi Muhammad Hussain (P.W.13). On the same day, the statements of eye‑witnesses, Sardar Khan, (P.W.I), Sardari Begum (P.W.2), Mst. Shameem Akhtar (P.W.3) and Mst. Ishrat Bibi (P.W:4) were recorded. On 22‑8‑1989. he recovered and took into the possession, the clothing of the accused‑respondent, Muhammad Irshad, trousers (P.3) and shirt (P.4), vide recovery memo. Exh.P.G. witnessed by Muhammad Nazir (P.W.11) and Muhammad Iqbal (P.W.14). On that. very. day, he also recovered and took into the possession a stick vide recovery memo. Exh.P.D. in the presence of Ch. Muhammad Din (P.W.5) and Said Muhammad (P.W.61. On 23‑8‑1989 he got prepared a site plan Exh. P.J. by Ghulam Rasool, Patwari (P.W.16). He also obtained report of the Chemical Examiner and report of the Serologist. The autopsy of the dead body of Muhammad Ashraf, deceased ‑was performed on 19‑8‑1989 at‑10‑45 a.m. by Dr. Javed Azam, Medical Officer, Civil Hospital Barnala. According to him, Muhammad Ashraf, died due to cut throat, causing severe haemorrhage which resulted haemorrhagic shock. The accused persons, after completion of the investigation, were forwarded to the District Court of Criminal Jurisdiction, member for facing the trial. The accused, in their statements recorded under section 342(2), Cr.P.C. denied the allegations levelled against them. The prosecution, in order to prove its case, against the convict appellant, Muhammad Irshad, the convict appellant and Muhammad Basheer, deceased‑accused, examined Sardar Khan (P.W.1), Mst. Sardari Begum (P.W.2), Mst. Shameem Akhtar (P.W.3), Mst. Ishrat Bibi (P.W.4) . Cat. Muhammad Din (P.W.5). Said Muhammad (P.W.6), Lal Din (P.W.7), Chandoo Khan (P.W.8); Muhammad Rasheed (P.W:9), Nazir Ahmed son of Eidoo Khan (P.W.11), Ghulam Nabi (P.W.12), Sufi Muhammad Hussain (P.W.13), Ghulam Rasool, Patwari (P.W.16), Dr. Muhammad Basheer (P.W.17), Dr. Javed Azam, Dilawar Khan, Constable Police No.2050 (P.W.19), Mazhar‑ul‑Haq head constable police (P.W.20), Raja Abdul Aziz, Deputy Superintendent of Police (P.W.22) and Muhammad Tariq S.‑I. Police (P.W.23). The convict‑appellant and Muhammad Bashir, deceased‑accused denied the incriminating pieces of prosecution evidence put to them under section 342, Cr.P C. and expressed their desire to lead the defence which was later on not produced by them. Before hearing of the arguments, Muhammad Bashir, accused, died whose name was struck off from the proceedings. The trial Court, after the conclusion of trial, having found the accused‑respondent, Muhammad Irshad, guilty of offence of murder, awarded him the sentence of 13 years rigorous imprisonment. The aforesaid judgment of the trial Court was challenged by the convict appellant Muhammad Irshad and complainant Sardar Khan in separate appeals before this Court. Following the dictum of apex Court of Azad Jammu and Kashmin Muhammad Sarwar's case PLD 2001 SC (AJ&K) 1, the appeals were kept pending in this Court and the trial Court was directed to re‑record the statements of Mst. Sardari Begum (P.W.2) and Mst. Ishrat Bibi (P.W.4) vide its judgment, dated 30‑10‑2000. The trial Court has Complied with the aforesaid direction and sent the file after recording the evidence of abovementioned prosecution witnesses. Hence, these appeals, one by the accused‑appellant, Muhammad Irshad, for setting aside the conviction and sentence and the other by the complainant for enhancement of the sentence. Mir Khalid Mehmood, Advocate, the learned counsel for the convict‑appellant vehemently argued that the trial Court has fallen in error while passing an order, of conviction and sentence. He has submitted that the complainant has not nominated any accused in his first information report and he only developed a doubt about convict‑appellant and the deceased accused, although F.I.R. was recorded after the delay of 5 hours. According to the learned counsel the instant case is of an unseen occurrence and the appellant was falsely implicated on account of enmity. The learned counsel has further contended that all the P.Ws. are closely related to the deceased who are also inimical to the, accused‑appellant, thus, the prosecution evidence is not trustworthy. He also argued that the prosecution has withheld Mahndi Khan, Ch. Iqbal, Mushtaq and Muhammad Din in whose presence the F.I.R. was recorded, which adversely affects the case of prosecution. The learned counsel has pointed out that the complainant has categorically stated in the F.I.R. that on his raising alarm P.Ws. Mst. Sardari Begum, Mst. Shameem Akhtar and Mst. Ishrat Bibi have got awakened and at that time he saw two persons fleeing away in a Nallah situated in front of his house one towards northern side and the other towards southern side but he changed his version and deposed before the Court that he alongwith abovementioned P. Ws., saw that Muhammad Irshad accused cut the throat of his deceased son. The learned counsel has also submitted that F.I.R. Exh.P.A. was written according to the instruction of the complainant and was also signed by him but when he was confronted with the document Exh.P.A., he refuted its salient and important future. The learned counsel has pressed into service the submission that according to the statement of the complainant if he had witnessed the occurrence then why this important fact was not mentioned in the F.I.R. or in the statement of the complainant recorded under section 161, Cr.P.C., which costs heavy doubt upon the prosecution tale. The learned counsel has argued with vehemence that all the three P.Ws. Mst. Sardari, Begum, Mst. Shameem Akhtar and Mst. Ishrat Bibi have deposed before the Court that accused appellant had committed the murder but according to them they did not nominate the accused at the place of occurrence before the complainant and so many other persons who had gathered at the place of occurrence soon after the incident. According to the learned counsel, the incident was not witnessed by the P.Ws. otherwise they would have certainly nominated the accused persons forthwith and the complainant had also pointed out the names of the accused persons in F.I.R. and his statement recorded under section 161, Cr.P.C. The learned counsel has further maintained that the factum of recovery has also not been proved by the prosecution despite of fact that all recovery witnesses are also closely related to the complainant‑patty. In this respect, he has referred to me the certain portions of the evidence of recovery witnesses. He also submitted that Muhammad Din (P.W.5) is first cousin of .the deceased whereas Nazir Ahmed (P.W.II) is nephew of the complainant. Similarly. Muhammad Rashid (P.W.9) is brother of deceased. Muhammad Din (P.W.5), Said Muhammad (P.W.6) and Ghulam Nabi (P.W.12) were declared hostile. Nawab Khan (P.W.10) and Muhammad Iqbal (P.W.4) were not produced before the Court. The learned counsel has further argued that the perusal of the statements of Lal Din (P.W.7) blacksmith and Jhandoo Khan (P.W.8) Carpenter, reveal that the hatchet was not got identified by them at the place of occurrence but at the police station. Both of the P. Ws. have admitted that they were angry with the accused appellant because he wanted to purchase their joint property from their co‑owners. The learned counsel has also submitted that because of the murder of Javaid Hussain Gilani, P.W.2l, he could not confront him about the important contradictions, material irregularities and the improvements made by the P. Ws. The learned counsel has strenuously argued that during the purgation, P.Ws. were also not found "Adil". The learned counsel has laid much stress that the prosecution story is based on surmises and. conjectures and the prosecution has, failed to prove its ease beyond any reasonable doubt. He further argued that if any iota of doubt is found in the prosecution story, it is sufficient for the acquittal of an accused person but the trial Court has failed to consider the fact that prosecution's case is full of doubts and the P.Ws. have made numerous improvements in their statements, thus, according to him the impugned judgment cannot sustain and is liable to be set aside. In support of his contentions he has relied upon the following authorities:‑‑ (1) 1995 PCr.LJ 25, (2) 1996 PCr.LJ 238‑1360, (3) 1998 PCr.LJ 1486 and (4) 2001 PCr.LJ 1672. While controverting the arguments of the learned counsel for the convict‑appellant, Ch. Lal Hussain, Advocate, the learned counsel for the complainant has submitted that the prosecution story is natural which is based upon the ocular version of four P.Ws. He contended that the time of occurrence has also been clearly mentioned in the F.I.R. The learned counsel has further argued that the complainant is an illiterate person who has affixed his thumb‑impression upon the F.I.R., therefore, he could not nominate the accused. The learned counsel has maintained that despite of lengthy cross‑examination the defence failed to shatter the evidence of all three witnesses namely Mst. Sardari Begum, Mst. Shameem Akhtar and Mst. Ishrat Bibi which fully support the prosecution version. The learned counsel has pointed out that F.I.R. is not in the nature of formal charge and its primary purpose is to inform about the commission of the cognizable offence, therefore, importance should be attached with the statement of the complainant deposed before the Court. The learned counsel has further maintained that some minor infirmities are found in the recovery evidence but the evidence of Police Officer could not be ignored who is also a trustworthy witness. The learned counsel has pointed out that the blood‑stained clothes recovered from the accused and blood‑stained clothing of the deceased, the blood‑stained earth and the weapon of offence, the hatchet holds the same group of blood "A" which is itself sufficient to implicate the accused with the commission of the crime. The learned counsel argued that sufficient corroboratory evidence has also been produced and in light of the post‑mortem report, report of Chemical Examiner and the report of the Serologist coupled with the recovery evidence is sufficient to lend support to the ocular version of the prosecution. The learned counsel has argued that the accused‑appellant has committed gruesome murder, therefore, the death sentence which is the normal sentence of the commission of the murder, will meet the ends of justice whereas the trial Court has erred while awarding the accused sentence of 13 years. The learned counsel has also submitted that reasons appearing in the impugned judgment for the lesser sentence are not sufficient. He has cited the following case‑law:‑‑ (1) PLD 1978 SC (AJ&K) 146, (2) PLD 1979 SC (AJ&K) 23, (3) PLD 1983 SC (AJ&K) 211 and (4) 1992 SCR

120. Sardar Muhammad Raziq Khan, the learned Additional Advocate‑General appearing on behalf of the State, has fully owned and supported the arguments raised by the learned counsel for the complainant. I have carefully considered the submissions made at the Bar, perused the record and case‑law cited. The first question which needs determination is non‑mention of accused in the F.I.R. It is admitted on the part of the prosecution that when the F.I.R. Exh.P.A. was lodged before S.H.O. Police Station, Barnala, the complainant did not nominate Muhammad Irshad, as an accused rather he only mentioned that, he has developed some doubt that the occurrence might have been done by the accused appellant alongwith Muhammad Bashir, deceased‑accused. The complainant has affixed his thumb‑impression on the F.I.R. Consequently, Case No.102 of 1984 Exh. P.B. was registered and the complainant also affixed his thumb‑impression upon it. The same version was affirmed by the complainant in his statement Exh.D.A., recorded under section 161, Cr. P.C. which appears on page 61 of the challan file but when the complainant appeared before the Court, he changed his statement and deposed that when he raised alarm, Muhammad Irshad, accused‑appellant inflicted an injury with the hatchet upon the throat of his deceased son Muhammad Ashraf. The abovementioned statement was confronted by the defence on each and every important point recorded in the F.I.R. but the complainant did not agree with the question that some unknown person had cut the throat of his deceased son while he was sleeping. Surprisingly, he has not only admitted the fact of lodging the written F.I.R. Exh.P.A. before S.H.O. Police Station Barnala but he has also admitted the paras. B to B, C to C and D to D of Exh. P.A. as correct and according to his own version. The perusal of the statement of the complainant reveals that the important facts appearing in the F.I.R. were very well‑confronted by the defence, which were not admitted by the complainant in his statement, deposed at the trial. In such state of affairs, the question arises that when the complainant, according to him, had an opportunity to see the occurrence, the accused‑persons; who were also allegedly known to the complainant and the deceased, then why he omitted the names of the accused‑persons in the F.I.R., hence, the omission adversely affects the case of prosecution and favours the accused persons. Reference can be made to a case reported as Wali Dad and others v. Emperor AIR (33) 1946 Lah.

229. It is also admitted on the record that when the complainant went to lodge F.I.R. Mahndi Khan Member, Muhammad Din, Member, Mushtaq and Iqbal, also went alongwith him. The complainant has also stated that when he told S.H.O. about the occurrence, he asked him to file the written application. On his disclosing that he is an illiterate person, the S.H.O. deputed some person who wrote the F.I.R. for him. The relevant statement reads as follows:‑‑ The perusal of the above statement shows that the F. I. R. was recorded after discussion and due deliberation which took the complainant about 4 to 5 hours because the distance between the place of occurrence and the police station has been stated as 5 Kms. Therefore, if according to the complainant he knew the names of the accused persons then why he or his companions did not nominate the accused persons in the F. I. R. I am cognizant of the fact that the F.I.R. is not a sacrosanct document or a piece of substantive evidence and it can only be used‑for contradicting or corroborating the maker thereof. Yet it lays down the foundation of the prosecution case, therefore, any infirmity appearing in it has very important role of determination which is final outcome. In this. view of the matter, the F.I.R. is a most important document in a criminal case which furnishes the clue of the possible truth of the allegation against the accused but also causes affirm impression of the prosecution case. F.I.R. is a statement which is made soon after the occurrence hence, the memory of the informant is fresh and it is also unlikely that he had an opportunity of fabrication and specifically when it comes from a person who shows himself to be present on the scene, report has greatest value and must be held to militate against any contrary or varied subsequent version. My this view stands fortified by a case titled as Muhammad Ishfaq alias Chief and 18 others v. The State 1998 PCr.LJ 1486 wherein the Honourable Judges of Karachi High Court have observed as under:‑‑ "On the basis of F.I.R. the investigation starts. Besides setting in motion the process of investigation another object of F. I. R. is to ensure as far as possible, that the interest of the accused is protected against subsequent possible variation, addition and improvements. He cannot be taken by surprise at the time of trial. Once the first informant admits his signatures on the F.I.R. a strong presumption arises that it was correctly recorded. In the case reported as Mujahid Hussain v. The State 1985 SCMR 1573 (relevant page 1576, paragraph 9) it was observed by the Honourable Supreme Court that first information report though per se was not substantive evidence was nevertheless an important document inasmuch as it disclosed facts of occurrence as initially known, laid down the foundation of the case, and provided clues for investigation. It was also held in the case that when there was discrepancy in number and identity of accused as stated in F.I.R. and ocular evidence and the explanation by the witnesses being clumsy casting doubt not only on the integrity of the complainant but also on the veracity of the ocular witnesses themselves, it was possible that the witnesses were not certain as to the number and identity of the accused. As observed earlier, the complainant in his deposition recorded by the trial Court has introduced entirely a different case implicating the appellants, in order to bring it in conformity with the supplementary challan submitted on 5‑2‑1993. His grievance was that the F.I.R. was not recorded properly. Two options were available to him. Either he should have complained immediately against the S.H.O. to the higher authorities in writing in that regard, or should have filed a direct complaint mentioning therein all the facts, which according to him, were not recorded in the F.I.R. Surprisingly, nothing was done. Such type of evidence to say the least, is to be discarded out-rightly. In case reported as Tafsir and others v. The State PLD 1960 Dacca 1019, it was held that the prosecution has made out vast improvements and the place of occurrence has been shifted from the bank of the tank to the outer compound of the house of Akijuddin where the occurrence has set to have been finally ended. The Court further held that the place of occurrence has been shifted with some motive and the prosecution has not come with clean hands, thus, conviction of the appellants and the sentence passed on them was set aside. In view of the above stated position, the version of the complainant is not trustworthy which cannot be relied upon. Now, I advert to the ocular account of the occurrence furnished by Mst. Sardari Begum, Mst. Shamim Akhtar and Mst. Ishrat Bibi, P.Ws. All of them have stated that they had seen the occurrence but they also deposed in their cross‑examination that they did not tell the complainant about the identification of the accused persons. They also testified that so many persons had gathered at the place of occurrence including Ghulam Rasool, Nazeer, Muhammad Din, Muhammad Khan, Babu Mushtaq and Iqbal but none of them asked them or from their family members about the accused persons, even the members of the locality did not ask about the culprits. Although the abovementioned members stayed at the place of occurrence at about one hour. In the light of the peculiar facts and circumstances of the case such type of evidence cannot be taken into consideration at all. The alleged incident took place during the dark hours. The F. I. R. was also reported after due discussion, deliberation and consultation and after delay of five hours but none of the accused was nominated therein. All the eye‑witnesses are closely related to the deceased and inimical towards the accused and had a motive against them for false implication. On this account, it cannot be believed that complainant was misled by someone or the abovementioned P. Ws. had witnessed the occurrence. It is very strange that they kept mum and did not disclose at the place of occurrence in presence of so many persons who had gathered soon after the occurrence, the names of the accused persons. The prudent mind cannot accept such type of cooked story. I may also observe here that the P.Ws. were not found "Adil" during purgation. There is another element in the case which creates even great difficulty i.e. in the instant case no corroboratory or confirmatory evidence is available against the accused person. Before discussing in detail the nature of confirmatory evidence it might be useful to note here that on the basis of the corroboratory evidence an order of conviction cannot be recorded but it is always used to support the statements of witnesses when the Court reaches the conclusion that the version of P.Ws. is, prima facie, correct but by way of precaution it needs corroboration to attain clarity. According to the prosecution, the most important evidence is recovery of hatchet P.1 from the place of occurrence which was taken into possession in the presence of 70/80 persons where it was allegedly identified by Lal Din; blacksmith (P.W.7) and Jhandoo Khan, carpenter, (P.W.8) vide memo. Exh.P.E., witnessed by Muhammad Din (P.W.5) and Nazeer Ahmad (P.W.11). Both the marginal witnesses are closely related to the complainant‑party. Muhammad Din was declared hostile and he also stated that he never witnessed the seizer of the hatchet and did not sign the recovery memo. Nazeer Ahmad (P.W.1l) another witness of recovery memo. Exh.P.E. also stated that the recovery memo. was not prepared in his presence. He further explained that he signs in "Urdu" whereas the signatures attributed to him are in English. The scribe of the recovery memo. died during the pendency of the trial, therefore, his evidence is also not available. It will be pertinent to discuss the evidence of Lal Din (P.W.7) and Jhandoo (P.W.8) who have been attributed to prepare the hatchet and identified the same at the place of occurrence in the presence of 70/80 persons but Lal Din (P.W.7) deposed that he had identified the hatchet at the police station alongwith Jhandoo (P.W.8), Muhammad Din, Qadir Bakhsh and Allah Rakha. Whereas Jhandoo has testified that the police asked him about the handle of the hatchet at the place of occurrence. Both the witnesses have animus against the accused. Lal Din has admitted that Irshad, accused had tried to purchase the land owned by one of his co‑owners, Khushi Muhammad but he did not allow him and later on during the pendency of the present trial he had taken the possession of the said land from Irshad, accused. Similarly, Jhandoo has admitted that Irshad, accused has purchased some land from his co‑owners, Karam Din and Ahmad Din and on account of this sale he got offended with him but he refused the suggestion that on account of this anger he had deposed against him. The perusal of the statement of both the abovementioned witnesses discloses that the P.Ws. have deposed against the accused on account of enmity, thus, their evidence cannot be relied upon. Another recovery memo, of the said hatchet Exh.P.F. has been placed on the record by the prosecution but both the marginal witnesses Nazeer Ahmad and Muhammad Din have refuted its seizer. The clothing of the accused, Muhammad Irshad, trousers P.3 and shirt P.4 were taken into possession vide recovery memo. Exh.P.G. but same were also not proved by its marginal witness, Nazeer Ahmad deposed before the Court that police had not recovered the abovementioned clothing in his presence whereas the other witness; Muhammad Iqbal (P.W.14) was withheld by the prosecution. The recovery memo. Exh.P.K. deals with the seizer of clothing of the deceased's trousers P.5/1, vest P.5/2 and a mattress P.5/3. In this respect, Ghulam Nabi (P.W.12) was declared hostile who refused to identify the trousers and vest of the deceased and stated that he had signed a plaine paper. The other witness, Muhammad Hussain (P.W.13) deposed that he had also signed a plain paper. Another recovery memo. Exh.P.H./4 was prepared about the identification of hatchet wherein it has been stated that Lal Din, blacksmith and Jhandoo Khan, carpenter had identified the hatchet in the presence of 75/80 persons: The recovery memo. has been stated to be witnessed by Muhammad Rasheed, real brother of the deceased but the other witness Nawab Khan was not produced before the Court. In this connection, the recovery of hatchet has been discussed in detail in the earlier part of this judgment. The blood‑stained earth was seized vide recovery memo, Exh. P.C. in the presence of Muhammad Din (P.W.3) and Said Muhammad (P.W.6). Said Muhammad was declared hostile who did not support the recovery, however, Muhammad Din has stated that blood stained earth was taken into possession in his presence but Muhammad Din was also declared hostile, as mentioned above. It will be relevant to note that both the witnesses did not support the recovery of hatchet or stick from the accused‑persons. So far as the site plan Exh.P.J. is concerned it is not a substantive piece of evidence which is prepared only C to appreciate or explain the evidence. Similarly, the medical evidence in shape of inquest report Exh.P.L. or the post‑mortem report Exh.P.N. cannot be considered as corroboratory piece of evidence because the ocular evidence is not above suspicion and doubt. The statement of Dillawar Khan, Constable Police, is about the possession of the parcels which does not require detailed discussion. Raja Abdul Aziz, D.S.P. stated about the registration of the case and further deposed that the investigation of the case was made by Javaid‑ul‑Hassan Gillani, deceased, S.H.O. Police Station Barnala. He further testified that he did not ask for the prosecution witnesses for personal satisfaction of the investigation. Mazhar‑ul‑Haq, Head Constable (P.W.20) was produced for recognition of the signatures of Javaid‑ul‑Hassan Gillani. Raja Tariq, Inspector Police (P.W.23) stated that he neither made any investigation of the case nor he satisfied himself with the investigation but he had only prepared the challan. Dr. Javaid Azam (P.W.) testified the post-mortem report Exh. P.N. and also stated that due to the cut throat injury, deceased had died spontaneously. I have also gone through the report of the Chemical Examiner which appears on page 39 of the challan file, though not exhibited which has been filed to prove the fact that the blood‑stained clay, the hatchet, the clothing of the deceased and the clothing of the accused were stained with blood whereas the report of Serologist which appears on page 48 of the challan file though not exhibited, describe that the blood‑stained clay, the blood‑stained hatchet, the clothing of the deceased and the clothing of the accused have a common blood group "A" but even though these reports do not render any support to the prosecution case because, as stated earlier, the recovery, of abovementioned articles has not been proved by the prosecution. It is very important to observe that while passing an order of conviction of an accused for murder the Court, has not only to be satisfied that the‑ murder has been committed but it must also be satisfied that accused committed the murder. The question of conviction and sentence demands utmost care on the part of the Courts dealing with the life and liberty of the people. Before recording an order of conviction all the facts and circumstances of the case must be taken carefully, into the consideration and the, golden principle of the Criminal Jurisprudence must be borne in mind that in case of murder the onus of proof always lies upon the shoulders of the prosecution that the case must be proved against the accused beyond any reasonable doubt and when the Court is in doubt as to whether the accused has committed an offence, it should acquit him rather to impose a lesser sentence. In support of this view case titled Ghulam Abbas and others v. The State 2001 PCr.LJ 1672 can be referred, wherein the following principle was enunciated:‑‑ "No source of light was disclosed in the Mashirnama of the scene of offence. Moreover, the weapons used in the commission of offence were not recovered from any of the appellant/accused. The ocular evidence is not corroborated by any material evidence. It is well‑settled that it is not necessary that there should be many reasons for creating doubt but a single infirmity which creates reasonable doubt is sufficient to discredit the prosecution story and benefit thereof is to be extended to accused. The reliance can be placed upon the case of Tariq Pervez v. The State 1995 SCMR 1345." The same view was explained by a Division Bench in a case titled Mehboob‑ur‑Rehman v. The State 1996 PCr.LJ 238, wherein it was observed that an accused is entitled to the benefit of everything going in his favour not as a matter of grace but as a matter of right and prosecution is duty bound to prove its case against the accused beyond reasonable doubt and its such duty is not diminished if the defence plea is not proved or is found to be false. In favour of this view a case reported as Hakim Ali and others v. The State 1971 SCMR 432 can also be referred, wherein it was opined by the apex Court that in criminal trial the onus always lies on the prosecution to prove its case and the prosecution has to succeed on the strength of its own case and not on the weakness of the defence. Coming to the instant case, the F.I.R. was lodged after elapse of more than 5 hours from the time of the occurrence. The incident took place at about 12‑15 p.m. on the night of 18th and 19th of August, 1989, where the report of the same was lodged at 5‑15 a.m. on 19‑8‑198qat the Police Station, Barnala, which is situated only at a distance of 5 miles from the place of occurrence.. The said distance can easily be covered within one and half hours by foot and thus, the delay of 3/4 hours that has occurred in lodging the F.I.R., remains unexplained by the prosecution. The possibility of the above stated delay having been used in consultation and deliberation or falsely implicating the accused is not altogether ruled out because the enmity between the complainant‑party and the accused also exists, thus, the delay in making the F.I.R. casts heavy doubt about the genuineness of the allegation made therein against the accused‑appellant particularly when the same is viewed in the light of the F.I.R. wherein the name of the accused is not mentioned. It is also admitted on the part of the prosecution that the eye‑witnesses are not only closely related to the complainant but also relatives of the deceased. The above narrated evidence of highly interested and partisan witnessed which is not at all corroborated by any direct or indirect evidence coming from any independent source, cannot be relied upon to base a conviction on criminal charge unless it is corroborated by some impartial and disinterested testimony. But in the present case no confirmatory evidence is available on the record to corroborate the eye‑witnesses account which, as stated earlier, consist of testimony of partial and related witnesses beyond that the ocular version in this case even do not inspire confidence. The statements of the eye‑witnesses are unnatural who have also made substantial improvements. It is not believable that in such huge gathering it was not possible for the complainant to nominate the accused in the F.I.R. or the eye‑witnesses to level accusation against the accused persons for doing away the life of their dear one. But the prosecution failed to produce independent and natural witnesses having no animus or relation with either of the parties. Therefore, it will not be safe to rely on such evidence to hold anyone guilty of offence of murder as the prosecution has failed to discharge the burden to prove the case against appellant beyond any reasonable doubt with the result that the appellant is entitled to get the benefit of such doubt. In this view of the matter, the Court below has failed to assess the evidence in a legal and proper manner, thus, conclusion drawn by the Court below is contrary to the evidence on record and against the settled norms laid down by the superior Courts from time to time. So far as the case‑law cited by the learned counsel for the defence is concerned, suffice to note that it is distinguishable and have nothing common, with the facts of the present case. The upshot of the above discussion is that the appeal is accepted and conviction and sentence of appellant is set aside and he is acquitted by giving him the benefit of doubt. He will be released forthwith if note required in any other case. Consequently, the appeal filed by complainant, Sardar Khan fails. N.H.Q./41/Sh.C.(AJ&K) Appeal accepted.