2021 PLP 155 (YLRN)

MUHAMMAD TARIQ NADEEM, J.

Amanual, appellant along with his co-accused Yousaf, Yaqoob, Shan Mahmood, Moon and Zafar Iqbal was tried by the learned trial court in a private complaint under sections 302/364/201/109/148/149, P.P.C., Police Station Noor Shah, Sahiwal and after conclusion of trial in the said private complaint vide judgment dated 27.02.2012 while acquitting rest of the accused, convicted and sentenced him as under Under section 302(b), P.P.C. Life imprisonment along with compensation of Rs. 1,00,000/- to the legal heirs of Kashif, deceased, under section 544-A, Cr.P.C. recoverable as arrears of land revenue and in default thereof to further undergo 06 months S.I. Benefit of section 382-B, Cr.P.C. was extended to the appellant. Feeling aggrieved by the judgment of the learned trial court, Amanual appellant has assailed his conviction and sentence through the instant appeal.

2. It is pertinent to mention here that earlier on the complaint of complainant, FIR No.209 of 2010, under section 302, P.P.C. registered at Police Station Noor Shah, District Sahiwal was registered regarding the occurrence but being dissatisfied with the investigation, he filed the instant private complaint.

3. The facts of the case have been stated by Aizak, complainant (PW.1) in his statement before the learned trial Court, which are hereby reproduced for narration of the facts:-- "I know the accused persons present in Court, namely, Amanual, Yousaf, Yaqoob, Moon, Zafar Iqbal and Shan Mehboob. The are related inter se and are residing in my chak. Kashif deceased my son was working Sanitary. On 30.04.2010 at about 2/3.00 P.M. Kashif deceased my son was going towards field to fetch the fodder. When he reached near the house of Zafar Iqbal, Amanual accused armed with Caupa, Moon accused armed with Churri, Yousaf accused armed with hatchet, Yaqoob accused armed with BALA Zafar Iqbal accused armed with rod and Shan Mehboob accused also armed with rod came there and took forcibly Kashif my son into the house of Amanual accused. I along with Manzoor, Anwar, Shan Sheraz reached at the spot. We tried to rescue Kashif deceased from the accused but they issued threats with dire consequences to us. In our view Amanual accused inflicted Caupa blows on the face of Kashif deceased, Yousaf accused inflicted hatchet blow on the back side of head. Moon accused inflicted churri blow on the right ear of the deceased. Kashif fell down on the ground. Shan Mehboob, Zafar Iqbal and Yaqoob Masih accused persons forcibly brought Mst. Ameeta alias Sonia at the spot. Shah Mehboob accused inflicted three rod blows on the head of Sonia. Yaqoob accused inflicted BALA blow on the left shoulder of Sonia. Zafar Iqbal accused also inflicted iron rod blow on the left shoulder of Sonia, who fell on the ground. The occurrence was witnessed by me along with Manzoor, Anwar and Sham Sheraz. We tried to rescue the deceased but the accused persons issued threats. The accused persons thereafter fled away from the spot along with their respective weapons. The motive for this occurrence was that the accused had suspicion that Kashif deceased had illicit relation with Ameeta alias Sonia Bibi but it was false and due to this grudge the accused persons with their common intention and common object murdered my son Kashif and Mst. Sonia. Police came at the spot and took the dead bodies from the place of occurrence to the mortuary and the police obtained my thumb impression on some blank, papers. I am illiterate. We remained busy in funeral ceremony of my son. During this time Mushtaq and Younas Bias in collusion with the police to save the Amanal etc accused persons from this occurrence, got registered a case FIR No.209/10 under section 302, P.P.C. at Police Station Noor Shah which was not read over to me. Some days after the occurrence I obtained copy of FIR then it came to my knowledge that the case was not registered according to my version as stated by me before the police. Due to this reason I filed this private complaint Ex.PA through my counsel which bears my thumb impression."

4. After recording cursory statements of the complainant and PWs the accused were summoned to face a trial. Learned trial court, after observing all the pre-trial codal formalities, framed charge against the appellant along with his co-accused under sections 302, 364, 201, 148, 149, P.P.C. on 04-09-2010 to which they pleaded not guilty and claimed trial.

5. The prosecution in order to prove its case produced as many as 02 PWs and 07 CWs. The ocular account of the incident in issue had been provided by Aizak, complainant (PW.1) and Manzoor Maseeh (PW.2). Muhammad Saeed Akhtar, draftsman (CW.7) prepared scaled site plans (Ex.CW4/G and Ex.CW4/G-1). Riaz Ahmad, SI (CW.4) was the investigating officer of the case who stated about the various steps taken by him during investigation of the case. The medical evidence was provided by Doctor Muhammad Saeed, CMO (CW.3) and Pervaiz Najmi Dispenser, DHQ, Hospital, Sahiwal (CW.6). The remaining evidence produced by the prosecution was more or less is formal in nature.

6. After closure of prosecution evidence, statement under section 342, Cr.P.C. of appellant along with his acquitted co-accused were recorded in which they denied the allegations levelled against them and professed their innocence. The appellant neither opted to appear under section 340(2), Cr.P.C. in disproof of the allegations levelled against him by the prosecution, nor produced defence evidence.

7. The learned trial court vide judgment dated 27-02-2012 found the appellant guilty, hence, convicted and sentenced him as mentioned and detailed above.

8. I have heard learned counsel for the appellant, learned Deputy Prosecutor General for the State assisted by learned counsel for the complainant and have perused the available record with their able assistance minutely.

9. It has been noticed with concern that Kashif son of Aizak was kiss to dust on 30.04.2010 at 02.30 p.m., whereas, postmortem on the dead body of deceased was conducted on 01.05.2010 at 12.30 p.m. i.e. after about 22 hours of the occurrence. No explanation whatsoever has been given by the prosecution qua the delay in conducting the post mortem examination of the deceased which is obviously suggestive of the fact that time was consumed to fabricate whole proceedings. I fortify my view from the case laws titled as "Muhammad Rafique alias Feeqa v. The State" (2019 SCMR 1068), "Safdar Mehmood and others v. Tanveer Hussain and others" (2019 SCMR 1978).

10. The ocular account in this case had been furnished before the learned trial court by Aizek, complainant (P W.1) and Manzoor Maseeh (PW.2). According to the prosecution's case based on private complaint (Ex.PA) on the fateful day and time, Amanual, accused inflicted Kappa blows, which landed on the face of Kashif, deceased. Yousaf, accused inflicted hatchet blow which landed on the back side of head of Kashif. Moon accused inflicted Churri blow which landed on the right ear of Kashif deceased, who fell down on the ground. Then Shan Mahmood, Zafar Iqbal and Yaqoob Maseeh accused forcibly brought Mst. Sonia Bibi, deceased at the spot and Shan Mahmood, accused inflicted three rods blows on the head of Sonia Bibi. Yaqoob inflicted Bala blow which landed on the left shoulder of Sonia Bibi. Zafar Iqbal, accused also inflicted iron rod blow which landed on the left shoulder of Sonia Bibi, who fell down on the ground but during trial all the co-accused of the appellant namely Yousaf, Yaqoob, Shan Mahmood, Moon and Zafar Iqbal had been acquitted by the learned trial court on the same set of evidence and, thus, the role attributed to the present appellant by the eye-witnesses produced by the prosecution was identical to that of appellant. It may not be out of place to mention here that during trial legal heirs of deceased Sonia Bibi were summoned, who sworn their affidavits, recorded their statements wherein they forgiven all the accused persons in the name of Allah Almighty. Even today, complainant, in attendance along with his learned counsel has sworn his affidavit that he has no objection if the appellant is also acquitted of the charge, thus, the complainant felt satisfied with the acquittal of co-accused which shows that the eye-witnesses produced by the prosecution were capable of falsehood. It is a trite principle of law and justice that once prosecution witnesses are disbelieved with respect to a co-accused then, they cannot be relied upon with regard to the other co-accused unless they are substantiated by corroboratory evidence coming from independent source and shall be unimpeachable in nature but that is not available in the present case. Reliance is placed on "Nazir Ahmad v. The State" (2018 SCMR 787) "Haroon Shafique v. The State and others" (2018 SCMR 2118).

11. Both the eye-witnesses, namely, Aizak (PW1) and Manzoor Masih (PW2) in their statements stated that Amanual appellant inflicted Kappa blow upon the face of Kashif (since deceased), Yousaf inflicted hatchet blow on the back side of his head, similarly, Moon caused chhuri blow on his right ear but Dr. Muhammad Saeed (CW3) has noted nine injuries on the body of Kashif (since deceased). Both of them did not utter even a single word about the other injuries sustained by the deceased which also casts serious doubt in the prosecution story. The medical evidence is also not, found fully in conformity with the ocular account. This facts shows that the PWs were not present at the place of occurrence and they cannot be termed as truthful witnesses. Had they been present at the place of occurrence they must have describe the other injuries.

12. I have also noted with grave concern that the prosecution has made blatant and dishonest improvements qua the number of accused persons and name of witnesses. It is pertinent to mention here that initially FIR (Exh.CW2/A) was lodged against Amanual appellant and witnesses were named as Younis Bias and Mushtaq. It is also significant to mention here that complainant Aizek (PW1) filed a private complaint wherein seven other persons were also arrayed as accused, so much so, witnesses of FIR Younis Bias and Mushtaq were also nominated as accused persons. Similarly, co-accused Yousaf and Ameen were also ascribed effective roles regarding infliction of injuries on the body of Kashif (since deceased).

13. Similarly, the name of PW Manzoor has not been mentioned in the FIR who was subsequently introduced as eye-witness of the case, appeared as (PW2) before the learned trial court. It may not be out of place to mention here that after scanning the evidence it transpired that his statement under section 161, Cr.P.C. was not recorded during the course of investigation. In the dictum of law laid down by august Supreme Court of Pakistan in the case of "Saeed Ahmed Shah v. The State" (1993 SCMR 550), it has been held that the statement of any witness improved at trial is not worth relying rather such improvement creates serious doubt about its veracity and credibility. Similar view was held in another case reported as "Muhammad Mansha v. The State" (2018 SCMR 772) wherein the Hon'ble Supreme Court of Pakistan held as under: "Once the Court comes to the conclusion that the eye-witnesses had made dishonest improve-ments in their statements then it is not safe to place reliance on their statements. It is also settled by this Court that whenever a witness made dishonest improvement in his version in order to bring his case in line with the medical evidence or in order to strengthen the prosecution case then his testimony is not worthy of credence". The august Supreme Court of Pakistan in the case reported as "Muhammad Arif v. The State" (2019 SCMR 631) has enunciated the following principle: "It is well established by now that when a witness improves his statement and moment it is observed that the said improvement was made dishonestly to strengthen the prosecution, such portion of his statement is to be discarded out of consideration. Having observed the improvements in the statements of both the witnesses of ocular account, we hold that it is not safe to rely on their testimony to maintain conviction and sentence of Muhammad Arif (appellant) on a capital charge. "

14. The learned D.P.G. has laid much emphasis on the point that Amanual appellant has admitted the occurrence in his statement recorded under section 342, Cr.P.C., therefore, the case of the appellant is distinguishable to that of acquitted co-accused. For a better appreciation, the answer of the appellant in reply to a question No. 10, "why this case against you and why the PWs deposed against you" is relevant to reproduce here:- "It is a false case. PWs have deposed falsely due to relationship interse and with the deceased Kashif. The prosecution has set up a false and concocted story. In fact on the day of occurrence Mst. Sonia Bibi my daughter was all alone in the house and her mother had gone to Sahiwal to bring her other daughter who was studying and residing in hostel; her brother Shan was away in connect with labour and I was also out of my house in connection with labour and I had returned to my house unexpectedly and when I found my daughter Sonia Bibi and Kashif deceased in an objectionable condition in my cattle shed in our house, I under the grave and sudden provocation picked up a KAPA lying there and gave injuries to both the deceased persons with KAPA from its both sides (sharp and blunt side). At the time of occurrence, except me no other my co-accused was present at the spot. Deceased Kashif was not MASOOM-UD-DAM. " The above said argument has no value in the eye of law because the law is quite settled by now that, if the prosecution fails to prove its case then the accused person is to be acquitted even if he had taken a plea and had thereby admitted killing the deceased. The law is equally settled that the statement of an accused person recorded under section 342, Cr.P.C. is to be accepted or rejected in its entirety. Reliance is placed on case titled "Azhar Iqbal v. The State" (2013 SCMR 383) wherein it was held that:- "The law is quite settled by now that if the prosecution fails to prove its case against an accused person then the accused persons is to be acquitted even if he had taken a plea and had thereby admitted killing the deceased. A reference in this respect may be made to the case of Waqar Ahmed v. Shaukat Ali and others (2006 SCMR 1139)." It is also well settled principle of law that the prosecution has to stand on its own legs and it cannot take any benefit of weakness of defence plea as held by the august Supreme Court of Pakistan in the case reported as "Shera Masih and another v. The State" (PLD 2002 SC 643).

15. Adverting to the medical evidence which is in the shape of statement of Doctor Muhammad Saeed, CMO (CW.3), who conducted autopsy on the dead body of the deceased Kashi, vide PMR (Ex.CW3/A), suffice it to say that medical evidence may confirm the ocular account with regard to seat of injuries and its duration, nature of injuries and kind of weapon used for causing such injury but it cannot connect the accused with the commission of crime. I am fortified with the judgments passed by the Hon'ble Supreme Court of Pakistan reported as "Muhammad Tasaveer v. Hafiz Zulqurnain and 2 others" (PLD 2009 SC 53), "Mursal Kazmi alias Qamar Shah and another v. The State" (2009 SCMR 1410), "Ghulam Mustafa and another v. The State" (2009 SCMR 916) wherein at Page 923 of the latter judgment, the Hon'ble Supreme Court of Pakistan has been pleased to observe as under:- "

However, it is settled law that medical evidence can only establish the type of weapon used, the seat of injuries and the time elapsed between receipt of injury and medical examination. It can never be a primary source of evidence for the crime itself but it is only corroborative of the same ."

16. So far as motive part of the occurrence is concerned, a specific motive is mentioned in the crime report (Ex.CW2/A) as well as private complaint (Ex.PA) that the accused had suspicion that Kashif deceased had illicit relation with Ameeta alias Sonia Bibi but it was false and due to this grudge the accused persons with their common object committed murder of his son Kashif and Mst. Sonia, but to prove the said motive no cogent evidence was led by the complainant during investigation of the case as according to him it was only a suspicion that the deceased had illicit relations with Mst. Sonia, deceased, hence, the motive is farfetched and does not appeal to a prudent mind.

17. I am also conscious of the fact that the prosecution has made an abortive attempt to strengthen its case through the recovery of weapon of offence i.e. Kappa (P6) at the instance of Amanual, appellant on 05-05-2010 and the report (Ex.PC) of Serologist, Govt. of the Punjab, Health Department, 1-Birdwood Road, Lahore, according to which human blood was found present on Kappa (P6). Firstly it would not appeal to any prudent mind that after committing the incident, the said appellant would keep the Kappa, stained with human blood, in safe custody for a long five days as he had ample opportunity during the above mentioned period to wash away the blood. In an identical case reported as "Basharat and another v. The State" (1995 SCMR 1735), Hon'ble Supreme Court of Pakistan, while disbelieving the evidence of blood stained chhuri allegedly recovered from the accused after ten days from the occurrence, observed as under:- "

11. The occurrence took place on 20.4.1988. Basharat appellant was arrested on 28.4.1988. The blood-stained Chhuri was allegedly recovered from his house on 30.4.1988. It is not believable that he would have kept blood stained Chhuri intact in his house for ten days when he had sufficient time and opportunity to wash away and clean the blood on it..." Taking guidance from the above dictum, I am of the view that it is not safe to rely on such a weak piece of prosecution evidence, which even otherwise is merely supportive of direct evidence and is not the evidence of charge, hence, does not offer any help to the prosecution case in the absence of any trustworthy and confidence inspiring eye-witness account.

18. As a result of what has been discussed above, I have come to a definite conclusion that the prosecution remained unable to prove guilt of the appellant to the hilt beyond any shadow of doubt rather shadow of doubts are looming large in this case rendering the same smeared with dishonest and polluted evidence. 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 which too not as a matter of grace but as a matter of right. Reliance in this respect is placed on the case of "Muhammad Akram v. The State" (2009 SCMR 230). Consequently, while accepting instant criminal appeal, conviction and sentence of Amanual, appellant is hereby set aside and he is acquitted of the charge by extending the benefit of doubt in his favour. He is on bail by way of suspension of his sentence; his surety stands discharged. JK/A-63/L Appeal accepted.