2013 PLP 1257 (YLR)

MALIK SHAHZAD AHMAD KHAN, J.

We propose to dispose of Murder Reference No.229 of 2010, sent by the learned trial Court, Criminal Appeal No.149-J of 2010, preferred by appellant Muhammad Latif, Criminal Appeal No.670 of 2010, submitted by Muhammad Asghar appellant, and Criminal Revision No.634 of 2010, filed by Basharat Ali-complainant, by this single judgment, as all these matters stem out of judgment dated 18-3-2010, passed by learned Additional Sessions Judge, Sarai Alamgir, District Gujrat.

2. Muhammad Latif and Muhammad Asghar appellants along with Muhammad Sarwar, Sabir Hussain, and Muhammad Hanif co-accused were tried in case F.I.R. No.440, dated 26-8-2005, registered at Police Station, Sarai Alamgir, District Gujrat, in respect of offences under sections, 302, 324, 148, 149 of P.P.C. After conclusion of the trial, vide its judgment dated 18-3-2010, while acquitting co-accused namely, Muhammad Sarwar, Sabir Hussain and Muhammad Hanif the learned trial court has convicted and sentenced the appellants as under:-- Muhammad Latif Under section 302(b)/149 of P.P.C. to death for committing Qatl-e-Amd of Shabina Kausar deceased. He was also ordered to pay Rs.1,00,000 (Rupees one hundred thousand only) as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. or in default to suffer simple imprisonment for six months. Under sections 324/149, P.P.C. to undergo rigorous imprisonment for 10 years along with fine of Rs.30,000, or in default of the payment of fine, to further undergo S.I. for three months. Muhammad Asghar Under sections 302/149 of P.P.C. to imprisonment for life for committing Qatl-e-Amd of Shabina Kausar deceased. He was also ordered to pay Rs.1,00,000 (Rupees One Hundred Thousand only) as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. or in default to suffer simple imprisonment for six months. Under sections 324/149 of P.P.C. to undergo rigorous imprisonment for 10 years along with fine of Rs.30,000, in default of the payment of said fine amount, to further undergo S.I. for three months. Benefit of section 382-B of Cr.P.C. was also extended to him.

3. Brief facts of the case as disclosed by Basharat Ali complainant (P.W.4) in F.I.R. (Exh.PA/ 1) are that on 25-8-2005, at about 11-00 p.m., the complainant along with his real brother namely Ashiq Ali, Abdul Haq son of Muhammad Hussain, and 35/40 other persons were holding a procession to celebrate the victory of Ch. Manzoor Hussain, for the office of Nazim Union Council and were taking a round of the village and when they reached near the house of Sub. Muhammad Sarwar son of Muhammad Khan, who was their opponent, he (Muhammad Sarwar) started shouting, so, they stopped raising their slogans. The complainant further alleged in the F.I.R. that when the procession reached in front of the houses of Muhammad Ashraf son of Muhammad Khan and Najabat Ali son of Muhammad Walayat, the accused Muhammad Hanif armed with .12 bore double barrel gun, Muhammad Latif armed with rifle, both sons of Muhammad Khan came at the spot from the eastern side, whereas the accused Muhammad Sajjad armed with .12 bore gun pump action, Muhammad Ijaz armed with .244 bore rifle both sons of Muhammad Anwar came towards the main gate of the house of Muhammad Ashraf, and the accused Muhammad Sarwar armed with rifle 7 MM, Sabir Hussain armed with .32 bore revolver both sons of Muhammad Khan, Muhammad Asghar armed with .12 bore gun, Muhammad Akhtar armed with 'danda' both sons of Muhammad Sarwar, came on the roof top of the house belonging to Shabbir Hussain son of Muhammad Gulzar. The accused Muhammad Sarwar then raised lalkara that Basharat Ali, Ashiq Ali and Abdul Haq be not spared, on which the accused party started firing at the participants of the procession. The complainant further stated that he along with Ashiq Ali and Abdul Haq witnessed the occurrence in the moon-light, Muhammad Latif (appellant) allegedly made successive fire shots with his 12 bore gun, which landed on the chest, left cheek and left arm of Mst. Shabina Kosar, widow of Shaukat Ali, who was present in the courtyard of the house of her father Muhammad Ashraf, who died at the spot. Muhammad Asghar (appellant) allegedly made a fire shot with his .12 bore gun, which hit Mst. Zakiya Bano, daughter of the complainant, on the right side of her belly.

4. The motive for the occurrence, as stated by the complainant, was that the candidate of the accused party for the office of Nazim Union Council, lost his election, due to which, the accused, with their common object, committed the offence.

5. After completion of investigation, the challan was submitted before the Court, the appellants and their co-accused, all of them were charge sheeted, to which they pleaded not guilty and claimed trial. The prosecution in order to prove its case examined as many as 15 P.Ws. The complainant Basharat Ali (P.W.4), Abdul Haq (P.W.5) and Mst. Zakia Bano (P.W.13) furnished ocular account of the occurrence. P.W.7 lady Doctor Fakhra Masaood Syed on 26-8-2005 at 3-00 p.m. conducted the post-mortem examination on the dead body of Mst. Shabina Kausar wife of Shaukat Ali (deceased) vide Post mortem Report Exh.P.W/6-A and Diagram Exh.P.W/6-A-1 and found the following injuries on her person:-- (1-A). A fire arm wound of entry 1 cm x 1 cm present on the upper medial quadrant of left breast. There was no burning blackening or tattooing. There was a colour of abrasion present on the medial side, corresponding whole was present in the clothes. (1-B). A fire arm wound of exit with everted margin present 3 cm below the lower edge of left scapula. (2-A). A fire arm wound of entry on antrolateral aspect of left upper arm 9 cm below the left shoulder. Colour of abrasion all around. (2-B). A fire arm wound of exit present on postrolateral aspect of left upper arm 12 cm below the left shoulder. (3-A). A fire arm wound of entry 1 cm x 1 cm with inverted margin present on left side of face 4 cm in front of left ear. In her opinion, all the injuries mentioned above were ante-mortem and were caused by a fire arm weapon, which were sufficient to cause death in ordinary course of nature. Probable time that elapsed between injuries and death was within few minutes and between death and post mortem was 12 to 24 hours. P.W.8 Dr. Syed Islam Zafar, Director Health Services Punjab, Lahore, on 26-8-2005, medically examined Mst. Zakiya Bibi (P.W.13) daughter of the complainant, and found the following injuries on her body:-- (1) Fire arm wound 1 x 8 cm on right renal area of abdomen, laterally. Burning positive and no bleeding. (2) Fire arm wound 1 x 4 cm x 1 x 4 cm on front of abdomen on umbilical area 2 cm lateral to umbilicus. No burning. Omentum was coming out of wound. Edges were outward. Corresponding marks of injuries were present on qameez. General condition was not satisfactory. Both injuries were kept under observation and the injured was immediately referred to THQ Hospital, Kharain, for surgical management. Injuries were inflicted by fire arm weapon and the duration of the injuries was fresh. Final opinion was to be given after the report of Surgical Specialist. P.W.11 Muhammad Arif Gondal, Inspector was the Investigating Officer of this case who completed the investigation and submitted the challan. P.W.1 Ansar Ali, Constable, P.W.2 Muhammad Arif, A.S.-I., P.W.3 Abid Hussain, Constable, P.W.6 Muhammad Sharif, P.W.10 Asghar Ali, P.W.12 Muhammad Asghar Ali, A.S.-I. are the formal witnesses. The complainant Basharat Ali (P.W.4), Abdul Haq (P.W.5) and Mst. Zakia Bano (P.W.13) are the witnesses of ocular account.

6. The statements of the appellants and their co-accused under section, 342 of Cr.P.C. were recorded. They refuted the allegations levelled against them and professed their innocence. In answer to the question, why this case against you and why the P.Ws. have deposed against you, the appellant Muhammad Latif replied as under:- "I am innocent and has been involved in this case falsely due to the enmity and sister of Basharat Ali complainant eloped with me and Basharat complainant of this case got registered a case of abduction against me. I filed a suit for restitution of conjugal rights against Mst. Sughran Bibi, who was taken back by Basharat Ali, complainant when I was sent to jail and Sughran Bibi appeared before Family Court Judge and made statement in my favour and rebutted the abduction case and desired to live a family life with me. On this Sughran Bibi, sister of complainant was allowed to live with me from the Family Court, Kharian. P.Ws. have deposed falsely against me and my co-accused, who are my near relatives. It was a dark night occurrence. The procession was taken to celebrate the success of Nazim Ch. Manzoor, to whom the accused party was continuously opposing for the last three terms of elections. The success of Nazim was not controllable for his supporters and to press and humiliate us the procession was arranged, which according to P.Ws. started from shakreela, a place 3/4 k.m away from place of occurrence and only village Shah Ghora was selected for this celebration with pump and show. The members of the procession who were there to show their strength were making aerial firing and the procession remained moving around the whole village abadi. The aerial firing of the members of the procession resulted in injuries to the deceased. Prosecution in collusion with their successful Nazim Manzoor chalked out a false story to involve us in the case falsely. P.Ws. being having longstanding enmity against us thought it a proper chance when of their own firing the deceased was hit and got injuries and to eliminate us and my whole family, this false case has been planted upon us. None from us fired at the procession or anyone else. On account of general firing by the procession, we have hidden ourselves in the safer places to save our skins as we fear that we have opposed Ch. Manzoor Nazim and when had been succeeded there was every apprehension that the procession hosted in his favour may not cause loss to us. If we have fired at the procession, the same must have hit any of the member of the procession but it had not occurred so and the aerial firing by the complainant party holding a procession had hit the deceased causing her death. P.Ws. are closely related inter se and inimical towards us. They have motive to falsely implicate us on account of previous enmity. They are interested witnesses. No independent person has been produced as a witness in this case and no independent corroboration has been produced by the prosecution. A licenced gun has been planted upon me and the same was not recovered at my pointation. My co-accused namely Sarwar, Hanif and Asghar along with Ejaz Anwar P.O. have been declared innocent during the course of investigation by the investigating agency. This also negates the prosecution case. I pray mercy from God and justice from this Honourable court " The appellant Muhammad Asghar also denied the allegations of the prosecution levelled against him and claimed his innocence, in his statement recorded under section 342 of Cr.P.C. In answer to the question, why this case against you and why the P.Ws. have deposed against you, the appellant Muhammad Asghar replied as under:-- "For the reasons stated by my co-accused Latif, I have been falsely involved in this case". The appellants and their co-accused did not make statements under section 340(2) Cr.P.C, however, Muhammad Latif appellant produced in his defence copy of F.I.R. No. 321 dated 12-5-2004 Exh.D-1, copy of F.I.R. No. 421 dated 18-8-2000, Exh.D2, copy of F.I.R. No. 509 of 2001 Exh.D3, copy of F.I.R. No. 312 of 2000 Exh.D-4, copy of F.I.R. No. 503 of 1990 Exh.D-5, copy of F.I.R. No. 290 of 1997 Exh.D-6. The learned trial Court vide its judgment dated 18-3-2010, while acquitting co-accused, namely, Muhammad Sarwar, Sabir Hussain and Muhammad Hanif, found Muhammad Latif and Muhammad Asghar, appellants guilty and convicted and sentenced them as mentioned above.

7. The learned counsel for the appellants, in support of this appeal, contends that there is delay of four hours in reporting the matter to the police without there being any satisfactory explanation on the record and even time of injured Mst. Zakia Bano is not mentioned in the MLR Exh.P.W.8/A; that in the F.I.R. no source of light except moon light is mentioned; that the occurrence allegedly took place in the night of 25-8-2005, which was 20th Rajb and the moon rising time on that date was 10-45 p.m., and as such, there was no light at the relevant time, but while appearing before the Court, the witnesses made dishonest improvements by stating that they had torches with them, whereas, there was no such mentioning in the F.I.R. or the statements recorded under section 161 of Cr.P.C; that it is the case of the complainant in the F.I.R. Exh.PA/1 and in his statement before the Court that he (the complainant) along with other were going in a procession and when they reached near the house of Muhammad Sarwar accused, they heard a noise coming from inside of his house, therefore, they stopped the slogans and that Muhammad Sarwar raised lalakara that Basharat, Ashiq, and Abdul Haq be not spared and thereafter the accused started firing, but surprisingly, none of these persons or any other person present in the procession received even a scratch; that admittedly Mst. Shabina Kausar (deceased) was not participant of the procession and she, as per site plan Exh.PH/1, was inside the house and there was a wall of the height of six and a half feet between the appellant Muhammad Latif and Mst. Shabina Kausar (deceased), which fact has been confirmed by P.W.4 in his cross-examination and as per site plan the appellant Muhammad Latif, who has allegedly caused injury to Mst. Shabina Kausar, was at Point-2 and from where it is not possible for the appellant Muhammad Latif to cause injury to Mst. Shabina Kausar (deceased), who was inside the house at point-1 having a cover of a wall of the height of six and a half feet. As far as the appellant Asghar is concerned, learned counsel for the appellant contends that specific allegation against him was that he was armed with rifle and caused injuries on the belly of Mst. Zakia Bano (P.W.13), but the said injury, as per medical report, has burning around it, whereas, the distance of 21 feet between the appellant-Asghar and Mst. Zakia Bano has been shown in the site plan Exh.P-H, because as per site plan Mst. Zakia Bano was at Point-3, whereas, the appellant Muhammad Asghar was at Point-4; that since the said injury has burning around it, therefore, is not possible for the appellant to have caused the said injury from such a long distance; that initially it was the case of the prosecution that the appellant Muhammad Latif was armed with rifle, but subsequently it is mentioned that he fired with .12 bore gun; that allegation against the appellants was that they were armed with a gun and a rifle, but no empty was recovered from the spot, whereas, it is the case of the prosecution that some led bullets were recovered from the wooden door of the house of Muhammad Ashraf, but the same were not sent to the FSL for comparison with the gun (P.1) allegedly recovered from the appellant Muhammad Latif. As far as motive part is concerned, the learned counsel for the appellants contends that the motive is a double edged weapon that cuts both ways. On the one hand, it could be a cause of commission of offence, simultaneously, it could be a reason for false implication of the accused in a case, and in this case, admittedly there is a deep rooted enmity between the parties, therefore, motive cannot be considered in favour of the prosecution. The learned counsel for the appellants further contends that Muhammad Sarwar, Sabir Hussain and Muhamamd Hanif, co-accused of the appellants, have been acquitted by the learned trial Court against whom Criminal Appeal No.969 of 2010, filed by the complainant has already been dismissed by this Court vide order dated 14-6-2010, therefore, the evidence which has been disbelieved qua the acquitted co-accused of the case, the same could not be believed for the conviction of the appellant.

8. Conversely, the learned Deputy Prosecutor-General, for the State, assisted by the learned counsel for the complainant opposes this appeal on the grounds that delay of four hours in lodging the F.I.R. in a murder case, which took place at night time in a village, is not fatal to the prosecution. Further contends that Mst. Zakia Bano was injured in this incident and in the circumstances the first and foremost priority of the complainant and the other witnesses was to provide her medical treatment instead of reporting the matter to the police; that both the appellants are nominated in the F.I.R. with specific role of causing injury to the deceased and injured, respectively, which is fully supported by the medical evidence available on the record and the appellants cannot get the benefit from the acquittal of their co-accused, as no specific injury was attributed to them; that in this case, Mst. Zakia Bano who was aged about 10 years, at the relevant time, was injured, she appeared before the Court as (P.W.13) and fully supported the prosecution case to the extent of Muhammad Asghar appellant; that the ocular account furnished by the prosecution remained consistent, confidence-inspiring, transparent and the defence failed to shake the credibility of the witnesses and their evidence cannot be discarded merely because of previous enmity between the parties; that the motive has been proved and even has not been denied, therefore, this appeal be dismissed.

9. We have heard the arguments of the learned counsel for the parties, and have gone through the evidence available on record.

10. The occurrence in this case as per F.I.R. (Exh.PA/1) took place on 25-8-2005, at 11-00 p.m. (night). The matter was reported to the police by the complainant Basharat Ali (P.W.4) on 26-8-2005, at 3-00 a.m. (night), and the formal F.I.R. (Exh.PA/1) was registered at 3-25 a.m. (night). The Police Station Sarai Alamgir was at a distance of seven miles from the place of occurrence. The incident had taken place in village Shah Ghora, Police Station, Sarai Alamgir, District Gujrat. At the time of occurrence, as per prosecution, 35/40 persons were taking part in the procession, which was taken out to celebrate the victory of Chaudhry Manzoor Hussain, for the office of Nazim Union Council. It has also come on record during the cross-examination of Abdul Haq P.W.5 that facility of mobile phone was available in the village at the time of occurrence, but the matter was reported to the police with the delay of four hours. Although it has been argued on behalf of the complainant that the delay was caused because Mst. Zakia Bano was taken to the hospital by the complainant, but at the same time it is an admitted fact that apart from the complainant, 35/40 persons of the complainant side were present at the time of occurrence but none from them reported the matter at the Police Station, which was at the distance of only 7 miles, despite availability of mobile phone service. The time of arrival of Mst. Zakia Bano (injured) has not been mentioned in her MLR Exh.P.W.8/A, so that it could be established that the complainant was in fact busy in her medical treatment during the time consumed between the occurrence and registration of the F.I.R., therefore, the F.I.R. in this case was not lodged promptly. The possibilities of concoction and deliberation are always there, in the case of a delayed F.I.R. The prosecution in order to prove the ocular account has produced Basharat Ali (P.W.4), Abdul Haq (P.W.5), and Mst. Zakiya Bano (P.W.13). The complainant Basharat Ali (P.W.4) is 'Behnoee' (brother-in-law) of Mst. Shabina Kausar (deceased), whereas, he is real father of Mst. Zakiya Bano injured (P.W.13). Similarly, Abdul Haq (P.W.5) is 'behnoee' and 'chachazad' of the complainant. The above-mentioned prosecution witnesses are closely related to the deceased. Their enmity with the accused/appellants is an admitted fact. The complainant Basharat Ali (P.W.4) has admitted the enmity of the complainant party with the accused party. The relevant portion of his statement is reproduced hereunder for ready reference at pages-37 to 39 of the Reference Book:-- "Prior to this case, only one other criminal case from defence side was got registered, in which I was convicted. Muhammad Afzal son of Muhammad Sarzvar was the complainant and Sarwar accused of this case was injured P.W. of the said case. In that case, myself my brother Shafqat, Shaukat and Ashiq and Iqbal my uncle and Javed my cousin were the accused persons. It is correct that the said case was bearing No.290/97 offence under sections 324/148/149, P.P.C. Kaniz Akhtar wife of Iqbal is my chachi. It is correct that said Kaniz Akhtar filed a case under sections 336/148/149, P.P.C. against Sarwar, Hanif, Sabir, Muhammad Latif sons of Muhammad Khan, Afzal, Akthar sons of Sarwar and Shabbir son of Gulzar. I was the P.W. in the said case. Abdul Haq P.W. is my Behnoi. It is correct that he got registered a case against Sarzvar, Hanif, Muhammad Akhtar, Afzal and Amjad Hussain sons of Sarzvar under section 379, P.P.C., in which I along with Noor Hussain are P.Ws. It is correct that Uzma Bibi daughter of Latif accused was murdered and a case against myself and Abdul Haq, Ashiq Hussain, Javed Iqbal, Aurangzeb, Shahid Iqbal, Iqbal Hussain, Naeem Ullah and Sharif was registered. In the said case, Muhammad Hanif and Sabir accused were the P.Ws. It is correct that my sister Ghulam Sughra was abducted by Latif accused, in which I was the complainant. Hanif, Sarwar, and Sabir were also accused in the said case, who are brothers of Latif Akhtar, Afzal, and Amjad son of Sarwar were also accused in the said case. Abdul Haq, Iqbal Hussain were the P.Ws. from my side. It is correct that a suit for restitution of conjugal rights was filed by Latif accused in which my sister Ghulam Sughra appeared and she gave statement in favour of Latif accused and then she went away along with him by the permission of the Court. It is correct that Sughran Bibi is still living in the house of her husband Latif accused, having one child. It is correct that Kaniz Akthar wife of Iqbal, my chachi also got registered a case under section 354, P.P.C. against Hanif accused, in which I was cited as a P.W. Qurban Hussain son of Dildar is son of my Mamoon and also related to the accused. I do not know whether Qurban Hussain got registered a case under sections 435/148/149 P.P.C. against Sarwar, Anwar, Sabir, Hanif Latif sons of Muhammad, Shabbir, Ansar, Asghar and Liaqat sons of Sarwar, Shaukat and Khadim Hussain, in which Abdul Haq and Ashiq Hussain were the P.Ws. It is correct that we filed a civil suit against Sakina Begum wife of Sarwar accused in which I was a P.W". From the perusal of above-mentioned portion of the statement of Basharat Ali (P.W.4), enmity of the complainant with the accused party is fully established. Baharat Ali (P.W.4) has admitted that his sister Mst. Ghulam Sughran was abducted by the appellant Muhammad Latif, and he was a complainant in her abduction case. He has further admitted that a suit for restitution of conjugal rights was filed by Muhammad Latif in which his sister Mst. Ghulam Sughran appeared before the Court and gave her statement in favour of Muhammad Latif appellant, and thereafter, she went along with Muhammad Latif appellant with the permission of the Court. He has also admitted in his cross-examination that Mst. Uzma Bibi, daughter of Muhammad Latif appellant, was murdered and he (Basharat Ali/P.W.4) and Abdul Haq (P.W.5) were accused in the said murder case. Similarly, number of other civil and criminal cases of heinous nature were lodged by the complainant and accused party against each other, therefore, it is established that the prosecution witnesses were inimical towards the appellants, thus, their statements are required to be scrutinized with great caution. Similarly, their statements also require independent corroboration.

11. The occurrence in this case took place on 25-8-2005, at 11-00 p.m. (night). It was mentioned in the F.I.R. (Exh.PA/ 1) that the accused were identified by the prosecution witnesses in the moon-light. It was 19th of Rajb on 25-8-2005. The prosecution witnesses while appearing in the Court stated that they identified the accused in the moon light and they were also having torches at the time of occurrence. This fact that the prosecution witnesses were having torches at the time of the occurrence was not mentioned in the F.I.R. (Exh.PA/ 1) and they made this improvement in their statements before the learned trial Court. Identification of accused in moon light on the day of occurrence, which corresponded to 19th of Rajab would be quite difficult since on that date Moon would be only up to the shoulder level above the Easter horizon. Reference in this context may be made to the case of Ashrar alias Ashroo and another v. The State (2005 PCr.LJ 1489), and Amanullah and 4 others v. The State (PLD 1978 Karachi 792). The prosecution witnesses namely, Basharat Ali (P.W.4) and Abdul Haq (P.W.5) have also claimed in their improved statements that they identified the accused in the torch-light. The torches were never produced before the police nor the same were taken into possession by the Investigating Officer through any recovery memo. The identification of accused in torch light is always treated a weak piece of evidence. The evidence of identification in the torch light is insignificant, when the torch on the basis of which, the appellants were identified, was not taken into possession by the Investigating Officer. Reliance in this respect may be placed on the case of "Umar Hayat and others v. The State" 1997 SCMR 1076.

12. The prosecution story of the occurrence as narrated by the prosecution witnesses is improbable. The prosecution witnesses Basharat Ali (P.W.4) and Abdul Haq (P.W.5) have claimed that at the time of occurrence they along with 35/40 persons were holding a procession to celebrate the victory of Nazim, Chaudhry Manzoor Hussain and when they reached in front of the houses of Muhammad Ashraf and Najabat Ali at that time co-accused of the appellants namely, Muhammad Sarwar, (since acquitted), raised a lalkara to kill Basharat Ali (P.W.4), Abdul Haq (P.W.5) and Ashiq Ali, who were present in the procession, on which the appellants along with their five other co-accused started firing at the procession, but surprisingly, not a single person from the procession received even a minor scratch on his person. Mst. Shabina Kasuar (deceased) and Mst. Zakiya Bano (P.W.13) were not participants of the above-mentioned procession. They were present inside the house of Muhammad Ashraf (father of Mst. Shabina Kausar deceased). There was no reason with the appellant to kill them, instead of taking life of the complainant P.W.4 and Abdul Haq P.W.5. The appellant Muhammad Latif has been assigned the role of making fire shot, which landed on the chest, cheek and left arm of Mst. Shabina Kausar. According to the prosecution version, the appellant Muhammad Latif was present in the street, whereas, Mst. Shabina Kausar was present inside the house of Muhammad Ashraf. There was a six and half feet high northern intervening wall of the house of Muhammad Ashraf between the appellant Muhammad Latif and Mst. Shabina Kausar (deceased) because as per site plan Ex.P-H the appellant Muhammad Latif was present at Point No.2 which is an open place outside the house of Muhammad Ashraf, whereas, Mst. Shabina Kausar was at Point No.1 which is inside the house of Muhammad Ashraf and there was 6-1/2 feet high wall between them. So it was not possible for Muhammad Latif appellant to cause injury to Mst. Shabina Kausar who was behind the wall of the height of 6-1/2 feet. Not a single empty was recovered from the place of occurrence, where the appellants and their co-accused were allegedly standing and making firing at the time of occurrence.

13. The medical evidence in this case was furnished by lady Dr. Fakhra Masood Syed (P.W.7), who conducted the post-mortem examination on the dead body of Mst. Shabina Kausar (deceased) vide post mortem report Exh.P.W-6/A and diagram of the injuries Exh.P.W.6/A-1. This witness has stated in her cross-examination that she did not observe any corresponding hole on the last worn clothes of the deceased. Dr. Syed Islam Zafar (P.W.8) medically examined Mst. Zakiya Bano (P.W.13) vide Medico-legal Report (Exh.P.W.8/A) and diagram of injuries (Exh.P.W.8/B). He found the following injuries on the person of Mst. Zakiya Bano (P.W.13):-- (1) Fire arm wound 1 x 8 cm on right renal area of abdomen, laterally. Burning positive and no bleeding. (2) Fire arm wound 1 x 4 cm x 1 x 4 cm on front of abdomen on umbilical area 2 cm lateral to umbilicus. No burning. Omentum was coming out of wound. Edges were outward. Corresponding marks of injuries were present on qameez. General condition was not satisfactory. The appellant Muhammad Asghar has been attributed the fire shot on the abdomen of Mst. Zakiya Bano (P.W.13) who was present in the courtyard of her house. According to the prosecution case, the appellant Muhammad Asghar made fire shot, when he was standing on the roof top of the adjoining house of Shabbir Ahmad. As per site plan Exh.P-H the height of the place where the appellant Muhammad Asghar was allegedly standing at the time of occurrence was 19 feet and the distance between the appellant Muhammad Ashghar and Mst. Zakiya Bano (P.W.13) was 21 feet. The pictorial sketch of Mst. Zakiya Bano (P.W.13) does not suggest that the injury was caused to her from a higher level. The level of the entry and exit wound on the person of Mst. Zakiya Bano (P.W.13) does not correspond with the place, where the appellant Muhammad Asghar, was allegedly standing at the time of occurrence. The level of entry and exit wound is the same and it was not from upwards to downwards. Similarly, burning around the entry wound on the person of Mst. Zakia Bano (P.W.13) is not possible from the distance of 21 feet. It was not the case of prosecution that the injury on the person of Mst. Zakiya Bano (P.W.13) was caused from a close range. From such distance, injury with burning on the person of Mst. Zakiya Bano (P.W.13) could not be caused, and the said injury is possible only from a distance of less than three feet. We hereby refer the case of Amin Ali and another v. The State (2011 SCMR 323), wherein at page 330, the Hon'ble Supreme Court of Pakistan has held as under:-- "All the three witnesses deposed that the deceased had received three injuries, but the Medical Officer found six injuries on the person of the deceased. One of them had blackening. None of the witnesses deposed that any of the appellants had caused the injuries from a close range but on the contrary in the site plan the place of firing has been shown 8 feet away from the deceased. Thus from such a distance injury with blackening cannot be caused as it can be caused from a distance of less than 3 feet as per Modi's Medical Jurisprudence". Similarly in another case of "Muhammad Ishaq v. The State" (2007 SCMR 108), the Hon'ble Supreme Court of Pakistan at page 111 discussed the conflict between the ocular and medical evidence in the following terms:-- "Last but not the least, corroboration is sought from the post mortem report but strange it is to observe that it was totally ignored by the two courts that post mortem report has further damaged the already doubtful case of the prosecution. We are surprised to notice that there is burning on all the four inlet wounds of the deceased. Such burning can occur at the most from a distance of 5 to 6 feet from muzzle to the victim. Amazingly the distance from the assailant to the victim is 132 feet." Regarding contradiction about the direction of entry and exit wound and level of the deceased and the assailant the Hon'ble Supreme Court of Pakistan in the case of "Ali Sher and others v. The State" (2008 SCMR 707) at page 711 has held as under:-- "At the time of the occurrence Irshad deceased and his companions were walking on the service road running along the above mentioned rajbah. The convicts emerged out of the rajbah and had fired at the deceased from the Patrhi on the bank of the said rajbah. According to the two eye-witnesses the sand bank/Patrhi of the rajbah was 2 or 2-1/2 feet higher than the service road. However, according to the two independent witnesses, namely, Muhammad Ashraf Patwari (P.W.7) and Muhammad Sarwar FC (P.W.12) it was six feet higher than the service road. It could therefore be safely presumed that the two assailants were standing at a place which was atleast 4/5 feet higher than the place where the deceased was available at the time when the shots had been fired at him. In this view of the matter, the direction of the shots entering and leaving the body of the deceased should have been from upward to downwards but according to the description of the injuries as given by Dr. Rehmat Ali Imran (P.W.9) this was not so and in fact in his opinion the direction of the some of these injuries was from downwards to upwards. Consequently, we find it difficult to hold that the medical evidence was in line with the ocular testimony or that the eye-witness account was being corroborated by the medical evidence". There was no bleeding from injury No.1 of Mst. Zakiya Bano (P.W.13). Dr. Syed Islam Zafar (P.W.8), who medically examined Mst. Zakiya Bano (P.W.13) has admitted that she had not mentioned the time of examination of the above-mentioned injured prosecution witness. The above-mentioned facts have fully established that the ocular evidence is not in line with medical evidence.

14. It is contended by the learned counsel for the complainant that Mst. Zakiya Bano (P.W.13) is an injured eye-witness of the occurrence, therefore, her presence at the time of occurrence could not be doubted. Although Mst. Zakiya Bano (P.W.13) is an injured eye-witness, but injury on her person does not stamp her with truth. We may refer here the case of Muhammad Pervez and others v. The State and others (2007 SCMR 670). The Hon'ble Supreme Court of Pakistan at page 681 has held as under:- "It is also a settled law that injuries on a P.W. only indication of his presence at the spot but is not informative prove of his credibility and truth. See Said Ahmad's case 1981 SCMR 795". In view of the above we hold that the statement of injured eye-witness Mst. Zakiz Bano (P.W.13) requires independent corroboration, which is lacking in this case.

15. The prosecution witnesses made dishonest improvements in their statements. As discussed earlier, it was not mentioned in the F.I.R. or in the statements of the prosecution witnesses recorded under section 161 of Cr.P.C. regarding the availability of torches at the time of occurrence, but at the time of recording of their statements before the Court, the prosecution witnesses namely, Basharat Ali (P.W.4) and Abdul Haq (P.W.5) made dishonest improvements by saying that they identified the accused in moon light as well as in the light of torches. Improvement made by a witness on material aspects of the case is not worthy of reliance. Reference in this context, inter alia, may be made to the case of Muhammad Rafique and others v. The State and others (2010 SCMR 385).

16. Although it was alleged that that gun P-1 was recovered from the possession of Muhammad Latif appellant vide recovery memo (Exh.P.W.5/C) but said recovery is of no avail to the prosecution, because no empty was recovered from the spot, therefore, report of Forensic Science Laboratory (Exh.PZ) in respect of working condition of the above-mentioned gun is not helpful to the prosecution case. According to prosecution case, on 20-9-2005, two led bullets were allegedly recovered from the wooden doors of the house of occurrence vide recovery memo Exh.P.W.5/B. The said led bullets were not recovered on the day of occurrence, when Investigating Officer inspected the spot. Occurrence in this case had taken place on 25-8-2005, whereas, the led bullets were allegedly recovered on 20-9-2005. There is delay of twenty five days in the recovery of said led bullets, which makes the said recovery highly doubtful. These led bullets were never sent to the Forensic Science Laboratory for their comparison with the gun (P.1) allegedly recovered from the appellant Muhammad Latif.

17. Insofar as motive is concerned, as per F.I.R. (Exh.PA/1), the same is to the effect that the candidate for the office of Nazim Union Council supported by the accused party lost his election and due to that grudge, the accused party in furtherance of their common intention, committed the occurrence. The complainant party also claimed that their candidate Chaudhry Manzoor Hussaain won the election of the office of Nazim Union Council, and they were holding a procession to celebrate his victory. The above-mentioned Chaudhry Manzoor Hussain was not produced either during investigation or before the trial Court to prove the motive alleged by the complainant party. Even otherwise, motive is a double edged weapon, that cuts both ways. It could be a reason for false implication of the accused in a case. There is deep rooted enmity between the parties, therefore, the alleged motive in this case, cannot be considered against the appellants.

18. The learned counsel for the complainant has also contended that the appellant Muhammad Asghar remained fugitive from law and he was declared a proclaimed offender which also corroborates the prosecution case, against the said appellant. It is by now a well settled law that abscondence, per se, is not a proof of the guilt of an accused, which however can create a suspicion against him, but suspicion, however strong, cannot be the substitute of the proof, which is required to award punishment to an accused. The evidence of abscondence, even if found convincing, would not be sufficient by itself to warrant conviction of accused on a charge of murder. Reference in this context may be made to the cases of Barkat Ali v. Muhammad Asif and others (2007 SCMR 1812).

19. In the light of above discussion, we hold that the prosecution has failed to prove its case against the appellants beyond the shadow of doubt, therefore, by extending the benefit of doubt, we accept this appeal, and set-aside the conviction and sentence awarded to the appellants namely, Muhammad Latif and Muhammad Asghar, and dismiss Criminal Revision No.634 of 2010, filed by the complainant. The appellant Muhammad Latif is in jail. He shall be released forthwith if not required in any other case, whereas, appellant Muhammad Asghar is on bail, therefore, his surety bonds stand discharged. Death sentence awarded to the appellant Muhammad Latif is not CONFIRMED and Murder Reference is answered in the NEGATIVE. NHQ/M-37/L Appeals accepted.