2014 PLP 2227 (YLR)

MANZOOR AHMAD MALIK, J.

Hazar Khan alias Baggi (appellant) was tried by the learned Additional Sessions Judge-II, Arifwala District Pakpattan in a private complaint filed under sections 302, 404, 109, P.P.C. read with section 34, P.P.C. by Abdul Sami alias Sami Ullah as the complainant was dissatisfied with police investigation conducted in case F.I.R. No.308 dated 19-7-2001, offence under sections 302, 379, 109 and 34, P.P.C. registered at Police Station Saddar Arifwala District Pakpattan Sharif for the murder of Qudrat Ullah (deceased) son of the complainant. Vide judgment dated 27-5-2010 passed by the learned Additional Sessions Judge-II, Arifwala, the appellant has been convicted under section 302(b) P.P.C. and sentenced to death, with a direction to pay Rs.1,00,000 (rupees one lakh only) as compensation to the legal heirs of Qudrat Ullah (deceased) as provided under section 544-A Cr.P.C. and in default whereof to further undergo six months' simple imprisonment. Assailing the above conviction and sentence, Hazar Khan alias Baggi (appellant) has filed the appeal in hand whereas the learned trial Court has sent Murder Reference No.420 of 2010 for confirmation or otherwise of appellant's sentence of death, as required under section 374, Code of Criminal Procedure. As both these matters have arisen out of the same judgment, therefore, they shall be decided together through this single judgment.

2. The prosecution story, as set out in the F.I.R. (Exh.PA) registered on the statement of Abdul Sami alias Sami Ullah, complainant (P.W.1), is that he was resident of Chak No.9/E.B and a cultivator. On the day of occurrence i.e. 19-7-2001, the complainant alongwith his brother namely Abdul Ghafoor and maternal nephew (Bhanja) Zaheer Ahmad son of Muhammad Ameer, caste Bhatti, resident of Pakpattan was present at his land. At about 7.30 a.m. Qudrat Ullah son of complainant proceeded to his land for cutting fodder with licensed rifle .8-MM, wrapped in cloth. When he started cutting fodder, in the meantime, Hazar Khan alias Baggi (appellant) son of Atta Muhammad, caste Kharal, resident of the same village armed with rifle and Muhammad Nawaz son of Haq Nawaz, caste Bhatti, resident of the same village armed with .12 bore gun emerged there and raised lalkara to Qudrat Ullah not to run away. The complainant as well as Abdul Ghafoor and Zaheer Ahmad on hearing lalkara ran towards them and when they were at some distance, Hazar Khan alias Baggi (appellant) fired with rifle which landed on the forehead of Qudrat Ullah. Muhammad Nawaz fired with .12 bore gun hitting on the neck and face of Qudrat Ullah, who fell down. Then Muhammad Nawaz while coming close fired with .12 bore gun which hit on the back of Qudrat Ullah. Hazar Khan alias Baggi (appellant) picked up rifle .8-MM lying near Qudrat Ullah and raised lalkara to the complainant side that if they came near, would be done to death. The complainant party was empty-handed so did not go near due to fear. Both the accused decamped from the spot while brandishing weapons and extending threats to the complainant party and also took away rifle of Qudrat Ullah. It was further alleged in the F.I.R. that the occurrence was committed at the abetment of Ghulam Mustafa son of Sardar Shah, caste Bodla, resident of the same village. Prior to the occurrence, Hazar Khan (appellant) and Muhammad Nawaz were present at the dera of Mustafa Bodla where they hatched this conspiracy. Motive behind the occurrence as alleged in the F.I.R. was that two years prior to the occurrence, Qudrat Ullah (deceased) had fractured the legs of Hazar Khan alias Baggi (appellant) and later on a compromise was effected but Hazar Khan (appellant) bore grudge in his mind and he (appellant) alongwith Muhammad Nawaz committed the murder of Qadrat Ullah (deceased).

3. Muhammad Iqbal, S.I (CW.5) was posted at Police Station Saddar Arifwala. On 19-7-2001, Abdul Sami alias Sami Ullah, complainant (P.W.1) appeared before him and got recorded his statement, which was read over to him and the complainant thumb marked the same in token of its correctness. Thereafter, Sub-Inspector (CW.5) visited the place of occurrence where the dead body of Qudrat Ullah (deceased) was lying. He prepared injury statement (Exh.PG), inquest report (Exh.PH) and sent the dead body of Qudrat Ullah (deceased) to the mortuary for autopsy through Muhammad Riaz Constable (P.W.3). During spot inspection, he took into possession blood-stained earth and sickle (P.6) vide recovery memo (Exh.PD). After postmortem examination, Muhammad Riaz Constable (P.W.3) produced before him last worn clothes of the deceased viz shirt (P.2), shalwar (P.3) and a sealed phial, which were taken into possession vide memo (Exh.PE). He got prepared scaled site plan (Exh.CW.3/A) through Ashiq Muhammad Patwari (CW.3). Thereafter, he was transferred from the Police Station. Ch. Talib Hussain, Inspector/S.H.O. (CW.1) submitted an application (Exh.CW.1/A) and got issued non-bailable warrants of arrest (Exh.CW.2/A) of Hazar Khan alias Baggi (appellant) on 10-12-2001 and the same were entrusted to Muhammad Ashraf 231/C (CW.2) for execution. Thereafter, on 3-1-2002, he got issued proclamation (CW.2/C) through the learned Illaqa Magistrate, which were also entrusted to Muhammad Ashraf 231/C (CW.2) for execution. On 12-8-2006, Abdul Hameed, S.I. (CW.6) arrested Hazar Khan alias Baggi (appellant) and on personal search, recovered a pistol 30 bore. On 19-8-2006, the appellant allegedly led to the recovery of 8-MM rifle (P.1) from his residential house, which was taken into possession vide recovery memo (Exh. PC). On 25-8-2006, the appellant also got recovered rifle (P.4) along with five live bullets (P.5/1-5) from a graveyard in the area of Chak No.9/EB, which were taken into possession vide recovery memo (Exh.CW.4/A). After completion of investigation, a report under section 173, Code of Criminal Procedure was prepared in this case.

4. Being dissatisfied with the Police investigation, Abdul Sami alias Sami Ullah complainant instituted a private complaint (Exh.PB) on 14-12-2001. Prosecution story, as set out in the private complaint titled as "Abdul Sami alias Sami Ullah versus Hazar Khan alias Baggi etc.", is that on 19-7-2001 at morning time, the complainant along with Abdul Ghafoor and Zaheer Ahmad, witnesses was present at his land situated in Chak No.9/E.B. At about 7.30 a.m. Qudrat Ullah (deceased) son of complainant who was having 8-MM rifle proceeded to his land for cutting fodder. He had not yet started cutting fodder, in the meantime, Hazar Khan alias Baggi (appellant) son of Atta Muhammad, caste Kharal, resident of the same village armed with rifle and Muhammad Nawaz son of Haq Nawaz, caste Bhatti, resident of the same village armed with .12 bore gun emerged there and raised lalkara to Qudrat Ullah not to run away. The complainant as well as Abdul Ghafoor and Zaheer Ahmad on hearing lalkara and noise ran towards the place of occurrence. Within their view, Hazar Khan alias Baggi (appellant) fired with rifle at Qudrat Ullah (deceased) which landed on his nose. Muhammad Nawaz fired with .12 bore gun hitting on left cheek, right side of neck, right shoulder and left biceps of Qudrat Ullah, who fell down in injured condition. Thereafter, Hazar Khan alias Baggi (appellant) fired another shot at Qudrat Ullah which landed on back of his head. On raising hue and cry by the complainant's side, both the accused took away licensed rifle 8-MM of deceased son of the complainant. The complainant party attended Qudrat Ullah who had succumbed to the injuries. Besides the complainant, the occurrence was witnessed by Abdul Ghafoor and Zaheer Ahmad, witnesses. It was alleged in the private complaint that Hazar Khan alias Baggi (appellant) and Muhammad Nawaz had committed this occurrence with pre-planning at the abetment of Ghulam Mustafa son of Saddar Shah, caste Bodla, resident of the same village and the conspiracy was hatched prior to the occurrence at the dera of Ghulam Mustafa Bodla. Motive behind the occurrence as alleged in the private complaint was that two years earlier to this occurrence, Qudrat Ullah (deceased) had caused injuries to Hazar Khan alias Baggi (appellant) and fractured his legs and appellant's side who were fast friends inter se had borne grudge. It was further alleged in the private complaint that regarding this occurrence, the complainant had got registered F.I.R. No.308 dated 19-7-2001 under sections 302, 379, 109 and 34 P.P.C. at Police Station Saddar Arifwala but the police dishonestly, in connivance with the appellant's side, had not arrested Muhammad Nawaz and Ghulam Mustafa accused and declared them innocent which was against evidence on record. It was also alleged by the complainant that Muhammad Iqbal, Sub-Inspector had not read over to him preliminary report regarding the occurrence because the police was in league with the appellant's side. The police got conducted postmortem examination on the dead body of Qudrat Ullah (deceased) from Tehsil Headquarters Hospital, Arifwala on the same day. At the end of private complaint, the complainant averred that due to dishonest investigation of police, filing of private complaint had become inevitable.

5. After recording cursory evidence in the private complaint, the appellant was summoned by the learned Additional Sessions Judge, Arifwala to face the trial. Copies of relevant documents were provided to him, as required under section 265-C, Code of Criminal Procedure and formal charge under sections 302, 404, 109 and 34, P.P.C. was framed against him on 10-11-2009, to which he pleaded not guilty and claimed trial. In order to prove its case, prosecution examined four witnesses whereas six persons were called as court witnesses. Ocular account was furnished by Abdul Sami alias Sami Ullah complainant (P.W.1) and Zaheer Ahmad (P.W.2). Medical evidence was furnished by Dr. Rehmat Ali Imran (P.W.4). Abdul Sami alias Sami Ullah complainant (P.W.1) also witnessed the alleged recovery of rifle .8 MM (P.1) at the instance of appellant which was taken into possession vide recovery memo (Exh.PC). Muhammad Saidar Hussain (CW.4) witnessed the alleged recovery of rifle .8-MM (P.4) at the instance of the appellant which was taken into possession vide recovery memo (Exh.CW/A). Ch. Talib Hussain Inspector/S.H.O. (CW.1) and Muhammad Ashraf 231/C (CW.2) furnished the evidence of abscondance of the appellant. Muhammad Iqbal S.I. (CW.5) and Abdul Hameed S.I. (CW.6) investigated this case and while appearing before the learned trial court narrated the various steps taken by them during the course of investigation. The complainant gave up P.W. Abdul Ghafoor being dead, P.Ws. Aish Muhammad and Muhammad Arshad being unnecessary vide statement dated 2-4-2010. Learned Deputy District Public Prosecutor tendered in evidence report of Serologist (Exh.PK) and closed the case of prosecution vide statement dated 21-5-2010. Statement of the appellant under section 342, Code of Criminal Procedure, was recorded on 21-5-2010, wherein he refuted all the allegations of the prosecution and professed his innocence. In answer to a question as to why the case against him and why the prosecution witnesses had deposed against him, the appellant stated as under: "It is a false case. The P.Ws. are related inter se and with the deceased and they have made false statements against me due to their relationship with the deceased and enmity with me. The P.Ws. were not present at the place of occurrence, at the time of occurrence. In fact, it was a blind murder and the deceased was alone, when he sustained the injuries in the early dark hours." To another question, had he anything else to say, the appellant replied as under:-- "I am innocent. My co-accused Muhammad Nawaz was convicted in this case by the learned ASJ Arifwala, who was acquitted by the Hon'ble High Court, after dis-believing the eye-witnesses namely Abdul Samee alias Samee Ullah and Zaheer Ahmad. The same two eye-witnesses have appeared at the trial against me now. The judgment of the Hon'ble Lahore High Court, Lahore has not been set aside and is still in the field, the complainant did not challenge the order of acquittal of my co-accused Muhammad Nawaz." The appellant neither opted to appear as his own witness, in disproof of the prosecution allegations levelled against him, as provided under section 340(2), Code of Criminal Procedure nor produced any evidence in his defence. After conclusion of the trial, the learned trial court convicted and sentenced the appellant as detailed above. Hence this appeal and murder reference. 5-A. Learned counsel for the appellant, in support of this appeal, contends that the appellant has falsely been implicated in this case; that the occurrence allegedly took place at 7:30 a.m. on 19-7-2001 whereas the matter was reported to the Police at 8:30 a.m. and as such there is a delay of one hour in reporting the crime to the Police; that Dr. Rehmat Ali Imran (P.W.4), who conducted the postmortem examination on the dead-body of Qudrat Ullah (deceased) categorically stated in his cross-examination that the dead-body of the deceased was brought in the hospital at 3:25 p.m. whereas the police papers were provided to him at 6:25 p.m. and then he started the postmortem examination; that the Investigating Officer (CW.5) admitted during his cross-examination that Column No.3 of inquest report (Exh.PH) was partly left blank by him where the time of death of deceased is required to be filled which clearly suggests that the machinery of law was set in motion after preliminary inquiry and consultation and matter was not reported to the Police even at the time mentioned in the F.I.R.; that both the witnesses of ocular account namely Abdul Sami alias Sami Ullah complainant (P.W.1) and Zaheer Ahmad (P.W.2) cannot be considered truthful witnesses because neither they were present at the spot at the relevant time nor had they witnessed the occurrence. To substantiate this contention, learned counsel for the appellant contends that initially the alleged occurrence was reported to the police by Abdul Sami alias Sami Ullah complainant (P.W.1) and on his statement F.I.R. No.308/2001 was registered on 19-7-2001 wherein it was the case of complainant that on 19-7-2001 at 7:30 a.m. Qudrat Ullah (deceased) went to his land for cutting fodder where Hazar Khan alias Baggi (appellant) armed with rifle and Muhammad Nawaz (co-accused since acquitted) armed with .12 bore gun came there and that Hazar Khan alias Baggi (appellant) fired with his rifle which landed on the forehead of Qudrat Ullah (deceased) and thereafter Muhammad Nawaz fired with .12 bore gun which landed on the neck and face of Qudrat Ullah and that second fire made by Muhammad Nawaz hit on the back of deceased; that thereafter the complainant instituted the private complaint on 14-12-2001 (after about five months of the occurrence) wherein complainant twisted the story of F.I.R. by stating that the fire made by appellant landed on the nose of Qudrat Ullah (deceased) whereas the fire made by Muhammad Nawaz (accused since acquitted by this court) landed on the left cheek, neck at right side, right shoulder and left biceps of deceased; that thereafter second fire was attributed to the appellant which landed at the head of the deceased at backside; that in the statement of the complainant recorded in the previous trial of Muhammad Nawaz (co-accused of the appellant since acquitted by this court) it was the case of complainant that fire made by appellant landed on neck near the left eye of the deceased but while appearing before the learned trial court in the instant case he attributed only one firearm injury to the appellant on the base of nose of deceased; that in the statement (Exh.DB) recorded by the Police Officer it was the stance of the complainant that when the first fire was made, he had reached near the place of occurrence and saw Hazar Khan alias Baggi and Muhammad Nawaz running away but he had not seen anybody while making the fire; that complainant (P.W.1) was confronted with his previous statements i.e. statement (Exh.DA) got recorded by him in the previous trial of his co-accused namely Muhammad Nawaz and statement (Exh.DB) recorded by the Police Officer and the improvements were brought on the record. So far as the other witness of ocular account namely Zaheer Ahmad (P.W.2) is concerned, learned counsel for the appellant contends that he is a chance witness because the said witness while making statement (Exh.DC) before the Investigating Officer as well as in his statement (Exh.DD) in the previous trial of Muhammad Nawaz (co-accused of the appellant since acquitted) stated that he was residing in Mohallah Pir Sultan Pakpattan which is at a distance of forty miles from the place of occurrence but while appearing before the learned trial court in the instant case he got recorded his residence as Chak No.9/EB Tehsil Arifwala, District Pakpattan Sharif where the alleged incident tool place; that he has not assigned any plausible reason for his presence at the spot at the relevant time and as such he cannot be considered as natural witness of the occurrence; that Zaheer Ahmad (P.W.2) while appearing before the learned trial court also made dishonest improvements, he was confronted with his previous statements i.e. statement (Exh.DC) made before the police and statement (Exh.DD) made before the learned trial court in the previous trial of Muhammad Nawaz (co-accused of the appellant since acquitted by this court) and the improvements were brought on the record. Learned counsel further contends that Muhammad Nawaz co-accused of the appellant who as per F.I.R. caused two firearm injuries on the person of Qudrat Ullah (deceased) was tried earlier, he was convicted by the learned trial court and sentenced to life imprisonment but in appeal preferred on his behalf he was acquitted by this court of the charges levelled against him and the matter was not agitated any further as admitted by the complainant during the course of his cross-examination; that in the earlier trial of Muhammad Nawaz co-accused of the appellant, ocular account was furnished by Abdul Sami alias Sami Ullah complainant and Zaheer Ahmad and is the same position in the instant case and the evidence of both these witnesses which has not been believed in the earlier trial cannot be believed against the appellant in the instant case. So far as medical evidence is concerned, learned counsel for the appellant contends that ocular account to the extent of appellant is in direct conflict with the medical evidence because in the F.I.R. it was the case of prosecution that appellant made only one fire which landed on the forehead of deceased whereas in the private complaint he was attributed two injuries one on the nose and the second on the head of the deceased at backside but in the postmortem examination report (Exh.PF) of Qudrat Ullah (deceased) there is no firearm injury on the forehead and exactly on the nose of deceased. So far as abscondance of the appellant is concerned, learned counsel for the appellant contends that the same has not been proved in accordance with law because no order by the Court who issued warrants and proclamation of the appellant is available on the record; that as per provisions of section 87 Code of Criminal Procedure it is mandatory for the Court who issues the warrants and proclamation of an accused to pass an order in writing that the proclamation was duly published on a specified day but the said procedure was not adopted in this case; that even otherwise abscondance at the most is a corroborative piece of evidence and relevant only if the primary evidence i.e. ocular account inspires confidence which is not the situation in this case. So far as motive is concerned, learned counsel for the appellant contends that motive as set out in the F.I.R. was to the effect that two years prior to the alleged occurrence Qudrat Ullah (deceased) fractured the legs of appellant and the matter was patched up but the appellant nourished grudge and committed the murder of Qudrat Ullah (deceased); that as per own version of the complainant the earlier matter had been patched up and as such there was no reason or occasion for the appellant to commit the murder of the deceased. So far as recovery of .8-MM rifle (P.1) allegedly effected at the instance of appellant which was taken into possession vide recovery memo (Exh.PC) is concerned, learned counsel for the appellant contends that the same is inconsequential because no empty was collected from the spot and no report of Forensic Science Laboratory is available on the record. So far as recovery of .8-MM rifle (P.4) belonging to the deceased allegedly effected at the instance of appellant which was taken into possession vide recovery memo (Exh.CW.4/A) is concerned, learned counsel contends that the same is also not helpful for the prosecution because no license or any other documentary proof has been produced by the complainant's side to prove the factum that the said rifle belongs to the deceased and moreover the learned trial court has held in para No.17 of its judgment that no compelling instances are on record to believe that the rifle recovered from graveyard, in fact, belonged to deceased; that viewing from all angles, the prosecution case is doubtful in nature and the appellant is entitled to the benefit of doubt not as a matter of grace but as of right.

6. On the other hand, learned Deputy Prosecutor General, assisted by learned counsel for the complainant, vehemently opposes this appeal on the grounds that this incident took place on 19-7-2001 at 7:30 a.m. whereas the matter was reported to the police at 8:30 p.m. i.e. just after one hour of the occurrence; that distance between the place of occurrence and the police station was nine miles and even the postmortem examination on the dead-body of deceased was conducted on the same day; that Qudrat Ullah (deceased) was real son of the complainant and the occurrence took place in the land belonging to the complainant's side, therefore, presence of the complainant in his own land cannot be considered unnatural or improbable. So far as Zaheer Ahmad (P.W.2) is concerned, learned counsel for the complainant contends that though he is resident of Mohallah Pir Sultan Pakpattan but he has a business in Pakpattan Sharif and moreover his name is mentioned in the F.I.R., therefore, his presence at the spot at the relevant time is also established; that place of occurrence has not been disputed by the defence and even the sickle was recovered from the spot which also strengthens the prosecution case to the effect that deceased was cutting fodder at the relevant time; that there is no material contradiction in the ocular account and the medical evidence so far as role of the appellant is concerned because it was the case of complainant that appellant fired with .8 MM rifle which landed on the base of nose of deceased which is close to the forehead and moreover both the witnesses of ocular account being commoners were not expected to give the exact locale of injuries; that both the witnesses of ocular account are consistent on the point that it was the appellant who was armed with .8 MM rifle and fired at the deceased which hit on the base of his nose/forehead; that the appellant was arrested in this case on 12-8-2006 i.e. about five years after the occurrence and his abscondance has been proved in accordance with law through the statements of Ch. Talib Hussain Inspector/ S.H.O. (CW.1) and Muhammad Ashraf 231-C (CW.2); that motive has also been proved and even otherwise the same has not seriously been disputed by the defence; that the appellant cannot get any benefit from the acquittal of his co-accused namely Muhammad Nawaz because the proceedings in the previous trial were separated from the proceedings of present case; that the prosecution case is also corroborated by the recoveries of 8.MM rifles (P.1 and P.4) at the instance of the appellant which were taken into possession vide recovery memos (Exh.PC and Exh.CW.4/A) respectively; that version of the appellant taken by him in his statement recorded under section 342, Code of Criminal Procedure could not be substantiated as no evidence was produced by the appellant in support of his version and even the appellant did not opt to appear as his own witness as provided under section 340(2), Code of Criminal Procedure; that the prosecution has successfully brought home guilt against the appellant to the hilt and there is no merit in this appeal; that the appellant caused brutal murder of Qudrat Ullah (deceased) by causing firearm injury on the vital part of his body, therefore, he does not deserve any leniency even in the quantum of his sentence.

7. We have heard arguments of learned counsel for both the sides to their entire satisfaction, given serious consideration to their respective submissions and also perused the record.

8. This unfortunate incident, wherein Qudrat Ullah son of complainant lost his life, as per F.I.R. (Exh.PA), allegedly took place on 19-7-2001 at 7:30 a.m. and the matter as per prosecution was reported to the police on the same day at 8:30 a.m. The distance between the place of occurrence and the Police Station is nine miles. The postmortem examination on the dead-body of deceased was conducted on the same day at 6:25 p.m. i.e. about eleven hours after the occurrence. Dr Rehmat Ali Imran (P.W.4), who conducted the postmortem examination on the dead-body of the deceased categorically stated in his cross-examination that the dead-body was brought in the hospital at 3:25 p.m. whereas the police papers were provided to him at 6:25 p.m. and then he started the postmortem examination. The Investigating Officer (CW.5) admitted during his cross-examination that column No.3 of inquest report (Exh.PH) was partly left blank by him where the time of death of deceased is required to be mentioned. In such a situation possibility of preliminary inquiry and consultation prior to the reporting of the matter to police cannot be ruled out.

9. So far as ocular account furnished by Abdul Sami alias Sami Ullah complainant (P.W.1) and Zaheer Ahmad (P.W.2) is concerned, we have noted that initially murder of Qudrat Ullah was reported to the police by Abdul Sami alias Sami Ullah complainant (P.W.1) and on his statement F.I.R. No.308/2001 (Exh.PA) was registered on 19-7-2001 wherein it was the case of complainant that on 19-7-2001 at 7:30 a.m. Qudrat Ullah (deceased) went to his land for cutting fodder where Hazar Khan alias Baggi (appellant) armed with rifle and Muhammad Nawaz (co-accused since acquitted) armed with .12 bore gun came there and Hazar Khan alias Baggi (appellant) fired with his rifle which landed on the forehead of Qudrat Ullah (deceased). Thereafter Muhammad Nawaz fired with .12 bore gun which landed on the neck and face of Qudrat Ullah and second fire of Muhammad Nawaz hit on the back of deceased. Thereafter, the complainant instituted the private complaint (Exh.P13) on 14-12-2001 i.e. after about five months of the occurrence wherein complainant twisted the story of F.I.R. by stating that the fire made by appellant landed on the nose of deceased whereas the fire made by Muhammad Nawaz (accused since acquitted) landed on the left cheek, neck at right side, right shoulder and left biceps of deceased. The second fire made by the appellant landed on the head of the deceased at back side. In the statement of the complainant made in the previous trial of Muhammad Nawaz co-accused of the appellant it was the case of complainant that fire made by appellant landed on neck near the left eye of the deceased but while appearing before the learned trial court he attributed only one firearm injury on the base of nose of deceased. Complainant was confronted with his previous statements i.e. statement (Exh.PA) made before the police on the basis whereof F.I.R. was registered, statement (Exh.DA) made in the previous trial of Muhammad Nawaz (co-accused of the appellant since acquitted) and statement (Exh.DB) made before Fawad Ahmad Inspector and the improvements were brought on the record. Relevant portion of cross-examination of Abdul Sami alias Sami Ullah complainant (P.W.1) is relevant which reads as under:-- "I had not mentioned in the F.I.R. Exh.P-A recorded on my statement at the time of registration of the case that the fire arm Hazar Khan alias Baggi accused present in the court had hit on the fore-head of Qudrat Ullah deceased. Confronted with Exh.P-A where it is so recorded. I had mentioned in my previous police statement that the fire of Hazar Khan alias Baggi accused, hit at the base of his nose in between the eye brows. Confronted with Exh.P-A where it not so recorded. I had made correct statement in the previous trial of this case on 23-7-2002, I had not mentioned in my said statement recorded on 23-7-2002, in the court of learned ASJ Arifwala that the firearm Hazar Khan alias Baggi accused hit Qudrat Ullah deceased at his neck near the left eye. Confronted with Exh.D-A where it is so recorded. This case was investigated by 3/4 Investigating Officers. I had been joining all the investigation in this case and had got recorded my statement about the occurrence to them. Fawad Ahmad Inspector had also investigated this case and I had joined the said investigation. I had not stated in my statement recorded by Fawad Ahmad Inspector Police Station Sadar Arifwala, on 9-8-2001 that at about 8/8:30 a.m. when the first fire was made, I had reached near the place of occurrence and saw Hazar Khan alias Baggi and Nawaz Bhatti running away but I had not seen anybody making the fire. Confronted with Exh.D-B, where it is so recorded in portion A to A. I had not got recorded in my previous statement recorded on 18-3-2003, by the learned ASJ Arifwala, in the previous trial that I do not know when the accused person had arrived at the scene. Confronted with Exh.DA where it is so recorded in portion A to A. There was sugarcane crop towards the western side of the place of occurrence. There was cotton crop towards the northern and south towards the place of occurrence. I had correctly got recorded in my previous statement Exh.D-A that we did not see the accused persons coming to the spot because the sugarcane crop and Jawar crop were intervening between us and the deceased. The deceased had not yet started cutting the fodder when he was hit by the fire. I had not mentioned in my statement Exh.D-A that Qudrat Ullah deceased had started cutting the fodder when the accused persons arrived there. Confronted with Exh.P-A where it is so recorded. It is incorrect that I have made dis-honest improvements in my state-ment to bring my evidence in line with the medical evidence etc..." So far as Zaheer Ahmad (P.W.2) is concerned, we have also noted that the said witness while making statement (Exh.DC) to the Investigating Officer as well as in his statement (Exh.DD) recorded in the previous trial conducted in respect of Muhammad Nawaz (co-accused of the appellant since acquitted) got recorded his residence of Mohallah Pir Sultan Pakpattan which is at a distance of forty miles from the place of occurrence but while appearing before the learned trial court in the instant case he got recorded his residence at Chak No.9/EB Tehsil Arifwala, District Pakpattan Sharif where the alleged incident took place. Moreover the said witness of ocular account had not disclosed any plausible reason for his presence at the spot at the relevant time. Zaheer Ahmad (CW.2) was also confronted with his previous statements i.e. statement (Exh.DC) made before the Police, statement (Exh.DD) made in the previous trial of Muhammad Nawaz (co-accused of the appellant since acquitted) and the improvements were brought on the record. Relevant portion of cross-examination of Zaheer Ahmad (P.W.2) is relevant which is reproduced as under:-- "It is correct that while appearing as a P.W. in the previous trial in the court of learned ASJ, Arifwala, dated 18-3-2003 I had not got recorded my residence in Chak No.9/EB, rather I had got recorded my residence in Mohallah Pir Sultan Pakpattan Sharif. The witness volunteered that in fact, he is resident of Chak No.09/EB and he was doing business in Pakpattan Sharif. It is incorrect that I have made false volunteered statement in this respect because I had never stated my residence in Chak No.9/EB, either at the trial or during the investigation of this case. It is correct that I had stated my residence in Mohallah Pir Sultan Pakpatan, while making statement to the I.O. during the investigation of this case. It is correct that I had correctly got recorded in my police statement recorded on 19-7-2001, that I was resident of Mohallah Pir Sultan Pakpattan. I had mentioned in my police statement during the investigation of this case that on the day of occurrence, I had gone to Chak No.9/EB to see my maternal uncles Abdul Sami and Abdul Ghafoor etc. It is incorrect that I have dishonestly mentioned my residence in Chak No.9/EB, to show me as natural witness of the occurrence. It is correct that the Hon'ble Lahore High Court, Lahore acquitted Muhammad Nawaz accused by disbelieving our evidence. The witness volunteered that the eye-witness account was disbelieved to the extent of Nawaz acquitted accused. I had mentioned in my police statement that the firearm Hazar Khan accused hit at the base of nose in between the eye brows of Qudrat Ullah deceased. Confronted with Exh.D-C where it is not so recorded. I had not mentioned in my police statement that the fire arm Nazar Khan accused hit on the fore-head of Qudrat Ullah. Confronted with Exh.D-C where it is not so recorded..." It is well-settled by now that when a witness improves his statement to strengthen the prosecution case and the moment it is concluded that the improvements were made deliberately and with mala fide the testimony of such witness does not remain reliable. While holding so we are fortified by the dictum of law by the Hon'ble Supreme Court of Pakistan in the cases reported as "Muhammad Rafique and others v. The State and others" (2010 SCMR 385) and "Syed Saeed Muhammad Shah and another v. The State" (1993 SCMR 550). Seeking guidance from the above judgments of the apex court we hold that the evidence of Abdul Sami alias Sami Ullah complainant (P.W.1) and Zaheer Ahmad (P.W.2) is not reliable.

10. So far as abscondence of appellant is concerned, we have observed that the same has not been proved in accordance with law because no order in writing is available on the record by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day which as per provisions of section 87 Code of Criminal Procedure was mandatory for the learned court. Relevant provisions of section 87 of the Code (ibid) are reproduced as under:-- "

87. Proclamation for person absconding. (1) If any Court [is satisfied after taking evidence] that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified Trial Court time not less than thirty days from the date of publishing such proclamation. (2) The proclamation shall be published as follows:-- (a) it shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides; (b) it shall be affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village; and (c) a copy thereof shall be affixed to some conspicuous part of the Court-house. (3) A statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day shall be conclusive evidence that requirements of this section have been complied with, and that the proclamation was published on such day." Since there is no order of the court who issued proclamation, declaring the appellant as proclaimed offender, the alleged abscondence of the appellant cannot be used against him.

12. Motive behind the occurrence as alleged in the F.I.R., private complainant as well as before the learned trial court was that two years earlier to this occurrence, Qudrat Ullah (deceased) had fractured the legs of Hazar Khan alias Baggi (appellant) and later on a compromise was effected but appellant bore grudge in his mind and committed the murder of Qadrat Ullah (deceased). When as per own version of the complainant the earlier matter was patched up then there was no reason or occasion for the appellant to commit this Murder. Even otherwise, motive is double edged weapon, if it could be a reason for commission of offence for the appellant then at the same time, it (motive) could be a reason for false implication of the appellant by the prosecution. Therefore, we hold that it is not safe to rely on the evidence of motive to maintain conviction of the appellant on a capital charge specially when the ocular account does not inspire confidence.

13. We may also observe that abscondance and motive at the most are corroborative pieces of evidence and relevant only if primary evidence i.e. ocular account is confidence inspiring which is not the situation in the instant case as we have already concluded that statements of Abdul Sami alias Sami Ullah complainant (P.W.1) and Zaheer Ahmad (P.W.2) are not reliable.

14. So far as the medical evidence is concerned, it is well established law that the medical evidence is a supporting piece of evidence because it may confirm the ocular evidence with regard to the receipt of the injury, its locale, kind of weapon used for causing the injury, duration between the injury and the death but it would not tell the name of the assailant. Reliance is placed on "Ata Muhammad and another v. The State" (1995 SCMR 599).

15. So far as recovery of .8-MM rifle (P.1) alleged effected at the instance of appellant which was taken into possession vide recovery memo (Exh.PC) is concerned the same is inconsequential as no empty was recovered from the spot and no report of Forensic Science Laboratory is available on the record.

16. So far as recovery of .8-MM rifle (P.4), belonging to the deceased as per prosecution version, allegedly effected at the instance of appellant which was taken into possession vide recovery memo (Exh.CW.4) is concerned, the same is not helpful for the prosecution because the complainant's side has not produced any license before the learned trial court to prove the factum that the said rifle belonged to the deceased. Moreover, learned trial court has held in para No.17 of its judgment that no compelling instances are on the record to believe that rifle recovered from the graveyard in fact belonged to deceased.

17. So far as version of the appellant disclosed by him in his statement recorded under section 342, Code of Criminal Procedure is concerned, since we have concluded that the prosecution case is of doubtful nature, therefore, there is no need to discuss the version of the appellant.

18. Considering all these circumstances we are of the considered view that the prosecution has failed to connect the appellant with the commission of crime. In "Ayub Masih v. The State" (PLD 2002 SC 1048), at page 1056 the Hon'ble Apex Court has been pleased to observe as under:-- "...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 doubt of course must be reasonable and not imaginary or artificial. 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. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". In simple words it means that utmost care should be taken by the Court in convicting an accused. It was held in The State v. Mushtaq Ahmad (PLD 1973 SC 418) that this rule is antithesis of haphazard approach or reaching a fitful decision in a case. It will not be out of place to mention here that this rule occupies a pivotal place in the Islamic Law and is enforced rigorously in view of the saying of the Holy Prophet (p.b.u.h) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent."

19. For the foregoing reasons, Criminal Appeal No.1405 of 2010 filed by the appellant is allowed, conviction and sentence awarded to the appellant vide judgment dated 27-5-2010 passed by the learned Additional Sessions Judge II, Arifwala are set aside and the appellant is acquitted of the charges levelled against him while extending him benefit of doubt. Nazar Khan alias Baggi, appellant is in jail. He shall be released forthwith if not required to be detained in any other case.

20. Murder Reference No.420 of 2010 is answered in the NEGATIVE and the sentence of death awarded to Hazar Khan alias Baggi (convict) is NOT CONFIRMED. HBT/H-12/L Appeal allowed.