2017 PLP 12 (YLRN)

ABDUL SAMI KHAN, J.

Through this appeal under section 410, Cr.P.C. Muhammad Hussain appellant has called in question the judgment dated 31.10.2009 handed down by the learned Additional Sessions Judge, Sargodha through which the appellant was convicted under section 302(b), P.P.C. for Qatl-i-amd of Riaz Ahmad deceased and he was sentenced to undergo life imprisonment. He was also directed to pay compensation of Rs.100,000/- (Rupees one hundred thousand only) to the legal heirs of the deceased under section 544-A, Cr.P.C. In case of non-payment thereof he was ordered to further undergo simple imprisonment for six months. The appellant has filed the instant appeal against his conviction and sentence.

2. The prosecution story set forth in the FIR is that the brother of the complainant namely Muhammad Riaz used to live in the house of Muhammad Hussain since his childhood and he used to deal with all his family affairs. On the fateful night according to turn of water Muhammad Riaz, brother of the complainant and one Iqbal irrigated the land of Muhammad Hussain from 1.30 a.m. to 4.10 a.m. Thereafter both of them slept in the room adjacent to the Haveli of Muhammad Hussain at 5.00 a.m. At about 7.00 a.m. Iqbal told Sajid Hussain that Muhammad Riaz was laying on cot and he sustained a fire-shot injury on his head for which blood is oozing from his head. Sajid Hussain told the complainant who along with Muhammad Ijaz and Muhammad Fiaz immediately reached Haveli of Muhammad Hussain where Muhammad Riaz was laying on a cot smeared in blood who had sustained a firearm injury on his forehead. The complainant and his companions took care of him but he had died. The motive set up by the prosecution in the FIR was that Muhammad Hussain has litigation with Muhammad Iqbal in respect of land and Muhammad Riaz used to pursue the cases in that respect on behalf of Muhammad Hussain. Muhammad Iqbal had also lodged cases against Muhammad Riaz, etc. As all the affairs of Muhammad Hussain were being dealt with by Muhammad Riaz, therefore, the complainant has expressed strong suspicion that Muhammad Riaz was done to death by Muhammad Iqbal, Allah Rakha and Sohail, resident of Chak No.30/NB, Sargodha as well as Muhammad Azam son of Jalal, resident of Lalian after consulting with each other. Upon information given by the complainant formal FIR No.143/09, dated 04.03.2009 registered at Police Station Sadar, Sargodha in respect of an offence under section 302, P.P.C. read with section 34, P.P.C.

3. To substantiate its version at the trial, the prosecution produced as many as fourteen prosecution witnesses before the learned trial court. The ocular account was furnished by Muhammad Arshad (PW6), Muhammad Nawaz, complainant (PW8) and Muhammad Khan (PW 12). The medical evidence was furnished by Dr. Khalil Ahmad, APMO, District Headquarter Hospital, Sargodha (PW10) who had conducted postmortem examination on the dead body of Muhammad Yousaf on 04.03.2009 at 1.45. The investigation in this case has been conducted by Muhammad Ramzan, SI (PW13) and Muhammad Boota, SI (PW14) who have stated various steps taken by them during the investigation of this case.

4. The appellant in his statement recorded under section 342, Cr.P.C. professed his innocence and pleaded false implication in this case. The appellant neither opted to produce oral evidence in his defence nor to record his statement under section 340(2), Cr.P.C. in disproof of allegation leveled against him by the prosecution. However, to belie the statements of prosecution witnesses he has produced certain documents in his defence.

5. 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, learned trial Court proceeded to convict and sentence the appellant as mentioned in paragraph No.1 of this judgment. The learned trial court, however, acquitted Sajid Hussain and Muhammad Ijaz co-accused of appellant by extending benefit of doubt in their favour.

6. Learned counsel for the appellant contends that the prosecution has miserably failed to prove the guilt of the appellant to the hilt by making divergent stances at different stages. On the other hand learned Deputy Prosecutor General argues that the prosecution has amply proved the case against the appellant beyond any reasonable shadow of doubt.

7. I have heard the learned counsel for the parties at length, have given my anxious consideration to their arguments and have also scanned the record with their able assistance.

8. According to the prosecution own story admittedly it was a blind murder committed in the early hours of morning on 04.03.2009. The matter was reported to the police by virtue of lodging above mentioned FIR wherein neither the appellant nor his co-accused has been mentioned as accused person rather a strong suspicion has been expressed by the complainant against Muhammad Iqbal, Allah Rakha, Sohail and Azam that they in consultation with each other have committed the murder of Muhammad Riaz, brother of the complainant. But subsequently the complainant has moved an application on 12.03.2009 after eight days of the occurrence wherein he has twisted the story of the FIR and has introduced a new story by changing the set of accused and witnesses as well. According to the story carved in Ex. PL Muhammad Nawaz, complainant (PW8) himself had not witnessed the occurrence rather Muhammad Arshad (PW6) and Muhammad Khan (PW12) have told him regarding the occurrence. So in this eventuality to prove the occurrence the prosecution has examined two eye-witness, i.e. Muhammad Arshad (PW6) and Muhammad Khan (PW12) who have allegedly seen the occurrence. I have visited the statement of Muhammad Arshad (PW6) with great care and caution and found that in his examination-in-Chief he has not categorically deposed that he along with his companion Muhammad Khan entered into the room wherein the occurrence took place or from where the deadbody of Muhammad Riaz was found smeared in blood on a cot whereas Muhammad Khan (PW6) in his examination-in-chief has brought this aspect of the matter on record. Apart from this Muhammad Khan (PW12) had also deposed that all the three accused persons have aimed their respective weapon on them and threatened them to keep mum otherwise they would also meet with the same treatment which particular fact has not been expressed by Muhammad Arshad (PW6) in his statement. It seems that Muhammad Khan (PW12) has made dishonest improvement in the prosecution story set forth in application moved by the complainant on 12.03.2009 (Ex. PL) just to strengthen the prosecution's case against the appellant and his acquitted co-accused.

9. To substantiate the statements of Muhammad Arshad (PW6) and Muhammad Khan (PW12) the complainant himself appeared before the learned trial court as PW8 and he reiterated the story stated by the above said witnesses. A perusal of his statement shows that he has not only changed the set of accused person but he has also changed the motive part of the story set forth by him in the FIR. He has categorically stated in his examination-in-chief that his deceased brother was sleeping in the house of appellant after attending turn of water but astonishingly if he was apprised about the murder by above mentioned two eye-witnesses then how he has come to know that his brother slept after turn of water whereas both the eye-witnesses have not mentioned this fact in their statement/examination-in-chief. It has been observed that after taking some part of the story mentioned in the FIR the complainant has introduced a new story through Ex. PL which has been moved by him at a belated stage. By taking divergent stances by the complainant at different stages of investigation he has also made dishonest improvement in the prosecution story. The changing circumstances of this case during the investigation show that the witnesses have made glaring improvements in their statement while appearing before the learned trial court and in this way they have lost confidence of this Court to be believed upon them. The dishonest improvements made by them forbade this Court to believe their, evidence in letter and spirit. It is settled law that evidence of witnesses .who made dishonest improvement and omission in order to bring their statements in line with the circumstances of case lost its credibility. Reliance in this regard can be placed on the cases of Barkat Ali v. Muhammad Asif and others (2007 SCMR 1812) and Amin Ali and another v. The State (2011 SCMR 323). Similarly, law is also quite settled on the point that evidence adduced by interested and chance witnesses has to be scrutinized with great care and caution and an independent and impartial testimony is required to believe them which is missing in this case.

10. Admittedly the ocular account has been furnished in this case by chance and interested witnesses who have badly failed to furnish any valid reason for their presence at the scene of crime at relevant time. In criminal case the first stance of the prosecution is very much relevant and in the first stance (in the FIR and in his statement got recorded before the investigating officer under section 161, Cr.P.C.) the complainant has not even introduced both the eye-witnesses and their names have been brought in this case after due consultation. Law is quite settled on the point that statement of the related witnesses should be supported by any strong independent source/witness so that a worthy credence can be thrown upon them but in this case admittedly the ocular account has not been supported by any independent source. If this is not enough the best evidence of Iqbal, according to the contents of the FIR, has not been produced by the prosecution so an adverse inference under Article 129(g) of Qunan-e-Shahadat, 1984 can be drawn that had he been produced before the learned trial court he might have not supported the prosecution's case set forth by the complainant through Ex. PL at belated stage. The reason advanced by Muhammad Arshad (PW6) and Muhammad Khan (PW12) for keeping mum for eight days is also not appealable because it is not expected from the relatives that they would conceal such an incident due to fear and after eight days such fear automatically disappear and they explained the real circumstances.

11. It may not be out of place to mention here that even according to the prosecution's own case the fatal firearm injury is attributed to acquitted co-accused Sajid Hussain and not the appellant. The role of the appellant as assigned by the prosecution witnesses during their statements before the learned trial court is only as a facilitator or to the effect of raising lalkara but astonishingly the learned trial court has not relied upon the proscution witnesses and awarded sentence to the appellant by relying upon the outcome of investigation conducted by Muhammad Boota, SI/investigating officer. It is intriguing to note here that learned trial court has given preference to the opinion of the investigating officer rather than the prosecution witnesses. Law is quite settled on the point that apse dixit of police is not binding upon the Court rather the courts of law have to considered all the attending and surrounding circumstances of the cases which carry capital punishment of death. None of the prosecution witness has assigned the fatal fire-shot injury to the appellant then it is not understandable that why by relying upon the outcome of investigation the learned trial court has awarded life imprisonment to the appellant who has allegedly only raised lalkara at the spot by brandishing pistol in the air, as narrated by the prosecution witnesses in this case. It is very sorrow state of affairs that the complainant has himself introduced two different stories and during investigation a third story has also been introduced but in presence of all three stories the learned trial court has dealt with the instant case in a very casual manner while only relying the police finding which is inadmissible in evidence. So by any stretch of imagination it can be said with full degree of certainty that the eye-witnesses were not present at the scene of crime at the time of occurrence. Reliance in this regard can be placed on the cases of Muhammad Khalid Khan v. Abdullah and others (2008 SCMR 158) and Abid Ali and 2 others v. The State (2011 SCMR 208).

12. The medical evidence in this case has been furnished by Dr. Khalil Ahmad, APMO, District Headquarter Hospital, Sargodha yet the fact remains that medical evidence is only used for confirmation of ocular evidence regarding seat of injury, time of occurrence and weapon of offence used, etc. but medical evidence itself does not constitute any corroboration qua the identity of accused person to prove their culpability. Reliance in this regard can be place on the case of Muhammad Sharif and another v. The State (1997 SCMR 866).

13. In the FIR the complainant has connected Muhammad Iqbal with the motive part of this case with whom the appellant has litigation over parcel of land and it is stated that Muhammad Riaz deceased managed all the litigation pending at that time between the appellant and above said Muhammad Iqbal who along with Allah Rakha, Sohail and Azam has committed the murder of deceased but later on through Ex. PL the complainant has changed motive and assigned the same role to the appellant wherein he has stated that as his deceased brother has illicit liaison with the wife of the appellant and mother of Sajid co-accused so they have committed his murder. The complainant has himself introduced two different motives in this case, thus, he himself has lost confidence of this Court to believe upon him. Thus, motive in this case does not provide any support to the ocular account.

14. So far as recovery in this case is concerned, although pistol .30 bore alleged to have been recovered from Muhammad Hussain appellant vide recovery Ex. PJ and two empties have also been collected by the investigating officer vide recovery memo Ex. PF yet the fact remains that according to PWs the appellant has not made fire from pistol upon the deceased. He has been assigned the role of raising lalkara only and he has not used pistol during occurrence. Thus, in the backdrop of such a situation the recovery effected in this case from the appellant is of no consequence and does not render help to the case of prosecution. Even otherwise the pistol is licensee pistol of the appellant.

15. The upshot of my discussion made above is that, shadow of doubts is looming large on the case of prosecution rendering the same smeared with dishonest and polluted evidence adduced by the interested, chance and related prosecution witnesses. Thus, the prosecution has miserably failed to prove its case against the appellant beyond any reasonable shadow of doubt. It is settled law that not many circumstances creating doubt in the prosecution story are required to acquit an accused rather single circumstance creating doubt is enough to extend benefit of same to the accused not as a matter of grace but as a matter of right. In the case of Sher Bahadur and another v. The State (1972 SCMR 651) the august Supreme Court of Pakistan has held as under:- "(a) Penal Code (XLV of 1860), S. 302

Father and son injured with shot-guns by five persons

Father succumbing to injuries and evidence of son as regards three accused disbelieved by trial court and High Court

Produence, in circumstances, held, required that evidence of son being one by interested witness should have been accepted as against remaining two accused only if corroborated by some other reliable evidence". Similarly in the case titled Arif Hussain and another v. The State (1983 SCMR 428), the august Supreme Court of Pakistan has laid down the following principle:- "

S. 302

Murder

Evidence

Benefit of doubt

Prosecution case not free from doubt

Charges not brought home to accused in manner required under law

Accused given benefit of doubt and acquitted." Similar view was affirmed in the cases of Tariq Pervez v. The State (1995 SCMR 1345) and Muhammad Akram v. The State (2009 SCMR 320). It is also golden principle of Islamic jurisprudence that it is better to acquit ten guilty persons than to convict a single innocent person. So by extending the benefit of doubt to the appellant I acquit him of the charge. Criminal Appeal No.1837 of 2009 is, therefore, allowed and Muhammad Hussain appellant is acquitted of the charge by extending benefit of doubt in his favour. The sentence of the appellant was suspended by this Court vide order dated 06.08.2010. The bail bonds are released and surety shall stand discharged from his liability. SL/M-352/L Appeal allowed.