2018 PLP 772 (SCMR)

SARDAR TARIQ MASOOD, J.

The appellant Muhammad Mansha through this appeal by leave of the Court has impugned the judgment dated 02.02.2016, whereby Criminal Appeal filed by him against his conviction and sentence was dismissed, however his conviction under section 302(b), P.P.C. was converted into section 302(c), P.P.C. and his sentence was reduced from imprisonment for life to 10 years' R.I.

2. Precise facts of the case are that the appellant along with his co accused was indicted in case FIR No.328/09, registered on 29.11.2009, at Police Station Ahmed Yar, District Pakpattan, under sections 324/337-F(iv)/337-A2/148/149/302, P.P.C., for committing qatl-i-amd of deceased Abdul Majeed. Subsequently, complainant filed a private complaint against the accused nominated in the FIR and trial was conducted in said private complaint. On conclusion of trial, vide judgment dated 31.10.2013, the appellant Muhammad Mansha and his co-accused Nazik Farid were convicted under section 302(b)/34, P.P.C. and sentenced to imprisonment for life each. They were further directed to pay Rs.2,00,000/- each, to the legal heirs of the deceased as compensation in terms of section 544-A, Cr.P.C. or in default thereof to further undergo one year's S.I. Benefit of section 382-B, Cr.P.C. was extended to them, whereas co-accused Ali Sher, Zahoor Ahmed and Munir Ahmed were acquitted of the charge. Being not satisfied with the judgment of the learned trial Court, the appellant and his co-accused Nazik Farid filed Criminal Appeal No.415-J/2013, before the learned Lahore High Court, against their convictions and sentences. The learned High Court allowed the appeal to the extent of co-accused Nazik Farid giving him the benefit of doubt whereas while converting the conviction of the appellant Muhammad Mansha from 302(b) to 302(c), P.P.C. reduced his sentence of imprisonment for life to ten years' R.I. Being aggrieved, the appellant filed Jail Petition in which leave was granted on 24.8.2017, and following order was passed:- "

2. After going through the impugned judgment of the High Court dated 2.2.2016, we are taken aback that what a fine contrast and clash is appearing in the two views expressed by the High Court because on one hand it has labeled the witnesses to be dishonest but in the same breath relied upon their testimony. This clash being irreconcilable and cannot be endorsed on any legitimate premises and laid down principle of law relating to appraisal and re-appraisal of evidence while co-accused has been acquitted on the basis of same evidence how in the absence of corroboratory evidence the petitioner could be convicted hence leave to appeal is granted...."

3. We have heard the learned counsel for appellant as well as the Additional Prosecutor General and perused the available record. According to FIR, Ali Sher (since acquitted by the trial Court) gave a hatchet blow from its blunt side hitting on the head of the deceased Abdul Majeed whereas Sota blow, given by Nazik Farid (since acquitted by the High Court), landed on the head of the deceased Abdul Majeed. Allegedly the appellant Muhammad Mansha fired a shot with .12 bore pistol hitting on right shin of deceased Abdul Majeed, whereas the fire shot of Zahoor Ahmed (since acquitted by the trial Court) with .12 bore gun landed on left shin of the deceased who fell down. Allegedly Munir Ahmed (since acquitted) gave Sota blows hitting the deceased Abdul Majeed on different parts of his body. The complainant Rehmat Ali (PW-1) while filing private complaint alleged that Sota blow of Nazik Farid landed on the nose of Abdul Majeed and also made certain improvements regarding seat of injuries caused by Munir Ahmed and Nazik Farid. The trial Court acquitted Zahoor Ahmed, Munir Ahmed and Ali Sher who, according to prosecution's own case, actively participated in the occurrence. The High Court vide impugned judgment also acquitted Nazik Farid while declaring the prosecution evidence totally doubtful on account of dishonest improvements in the statements of the eye-witnesses. The relevant portion is re-produced as under:- "

10. I have noted that according to the FIR appellant Nazik Farid caused injury with sota on the head of the deceased, however, subsequently in the private complaint the complainant has changed the role of appellant Nazik Farid while stating that he had caused injury on the nose of the deceased and has specifically attributed head injury of the deceased to co-accused Ali Sher with blunt side of hatchet. Both the eye-witnesses in their statements before the learned trial court have also made dishonest improvements regarding the number and nature of the injuries on the person of the deceased just to bring the same in line with the medical evidence. Co-accused Ali Sher with the specific attribution of causing injury on the head of the deceased has been acquitted by the learned trial court. No appeal against acquittal of Ali Sher has been filed by the complainant. I am of the considered view that divergent stance taken, by the complainant in the FIR and in the private complainant regarding the role of appellant Nazik Farid and acquittal of co-accused Ali Sher, make the case against appellant No.2 Nazik Farid totally doubtful. Moreover, recovery of sota front appellant No.2 Nazik Farid is inconsequential as the same was not found blood stained. It is well settled principle of law that if evidence of prosecution is disbelieved qua one accused it cannot be believed qua the other in the absence of some very strong corroboration, as has been held by the Hon'ble Supreme Court of Pakistan in the case of Akhtar Ali and others v. The State (2008 SCMR 6). Therefore, appellant No.2 Nazik Farid is entitled to the benefit of doubt not as a matter of grace but as a matter of right. Hence, appellant No.2 Nazik Farid is acquitted of the charge." The learned High Court, on the same evidence, convicted Muhammad Mansha and also observed that the evidence of the eye-witnesses cannot be accepted in its totality when they have made dishonest improvements in their statements. The relevant portion is re-produced as under:- "......I am of the considered view that narration of occurrence given by PW-1 and PW-4 cannot be accepted in its totality especially when they have made dishonest improvements in their statements regarding the availability of electric light at the place of occurrence as well as number and locale of injuries on the person of the deceased caused by different accused...." Once the Court comes to the conclusion that the eye-witnesses had made dishonest improvements in their statements then it is not safe to place reliance on their statements. It is also settled by this Court that when ever 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 witnesses in this case have also made dishonest improvement in order to bring the case in line with the medical evidence (as observed by the learned High Court), in that eventuality conviction was not sustainable on the testimony of the said witnesses. Reliance, in this behalf can be made upon the cases of Sardar Bibi and another v. Munir Ahmad and others (2017 SCMR 344), Amir Zaman v. Mahboob and others (1985 SCMR 685), Akhtar Ali and others v. The State (2008 SCMR 6), Khalid Javed and another v. The State (2003 SCMR 1419), Mohammad Shafiqe Ahmad v. The State (PLD 1981 SC 472), Syed Saeed Mohammad Shah and another v. The State (1993 SCMR 550) and Mohammad Saleem v. Mohammad Azam (2011 SCMR 474). The role attributed to the co-accused was also supported by the medical evidence but they have been acquitted of the charge leveled against them by the learned trial Court or learned High Court itself. In that eventuality, the conviction upon the statements of the witnesses who, in the assessment of the High Court, made dishonest improvements and their divergent stances in the FIR and in the private complaint made them totally doubtful then there was no legal justification to convict the appellant Muhammad Mansha on the same set of evidence without independent corroboration conspicuously lacking in the instant case, as held by this Court in the cases of Ghulam Sikandar and another v. Mamaraz Khan and others (PLD 1985 SC 11), Sarfraz alias Sappi v. The State (2000 SCMR 1758), Iftikhar Hussain and others v. The State (2004 SCMR 1185), Akhtar Ali and others v. The State (2008 SCMR 6), Muhammad Ali v. The State (2015 SCMR 137), Mst. Sughra Begum and another v. Qaiser Pervez and others (2015 SCMR 1142) and Shahbaz v. The State (2016 SCMR 1763). This above principle has been appreciated by the High Court in the instant case, but erroneously convicted the petitioner against the said settled principle. The learned High Court while convicting the appellant sought corroboration from the recovery of weapon i.e. Carbin (P-6) and the medical evidence. It has been declared by this Court in various judgments that the medical evidence neither pin point the accused nor establish the identity of the accused, and at the most can depict the locale of injury, duration, weapon used etc. and medical evidence can never be considered to be a corroborative piece of evidence and at the most can be considered a supporting evidence only to the extent of specification of seat of injuries, the weapon used, duration, the cause of death etc., a reference in this context can be made to the cases of Muhammad Sharif and another v. The State (1997 SCMR 866), Mehmood Ahmad and 3 others v. The State and another (1995 SCMR 127), Dildar Hussain v. Muhammad Afzaal alias Chala and others (PLD 2004 SC 663), Abdul Majeed v. Mulazim Hussain and others (PLD 2007 SC 637) and Hashim Qasim and another v. The State (2017 SCMR 986). It has also been settled by this Court in numerous judgments and recently in the cases of Sardar Bibi and another v. Munir Ahmed and others (2017 SCMR 344) and Zahoor Ahmad v. The State (2017 SCMR 1662), that simple recovery of weapon cannot be considered as corroborative piece of evidence until it is supported by the positive report of Forensic Science Laboratory (FSL). In this case the only recovery of Carbin (P-6) cannot be considered as corroborative piece of evidence in the absence of any crime empty. According to the prosecution .12 bore Carbin was allegedly recovered at the instance of appellant Muhammad Mansha. Although the report of FSL regarding working condition of a .12 bore Carbin is available on the record but in the report it is mentioned that said Carbin was recovered from the place of occurrence and as such the same was inconsequential. But the said recovery was treated as a corroborative piece of evidence. So in the absence of any corroborative piece of evidence the conviction of the appellant was not sustainable on the same set of evidence which, according to the observations of the High Court, was full of doubts due to dishonest improvements in the statements of the eye-witnesses.

4. Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad Akram v. The State (2009 SCMR 230) and Muhammad Zaman v. The State (2014 SCMR 749).

5. For reasons discussed above, this appeal is allowed. The conviction and sentence awarded by the trial Court and upheld by the learned High Court is set aside. The appellant Muhammad Mansha, already on bail granted by this Court vide order dated 24.08.2017, is acquitted of the charge leveled against him in this case, surety bonds furnished by the appellant shall stand discharged. MWA/M-8/SC Appeal allowed.