Challenge to--Post-mortem report--No fire-arm injury--

 PLJ 2021 Cr.C. (Lahore) 14

Pakistan Penal Code, 1860 (XLV of 1860)--

----Ss. 302/324/337-F(iii)/34--Allegation of murder--Conviction & sentence--Challenge to--Post-mortem report--No fire-arm injury--Conflict between oral testimony and medical evidence--Delay in FIR--Statement of witnesses were not trustworthy--Non-recovery of crime empties--Non-availability of credible evidence--Benefit of doubt--Acquittal of--Post-mortem report of deceased indicates that there was no fire-arm injury present on abdomen of deceased as observed by doctor--Complainant and injured witness, specifically stated that fire shot made by appellant hit at abdomen of deceased, whereas during post-mortem examination, no such injury was found--Held: When there is conflict between oral testimony and medical evidence which does not fit in with ocular testimony, oral evidence would certainly be affected and it would not be safe to rely on such evidence--In instant case, evidence of witnesses to occurrence relied on by prosecution has seriously been affected by medical evidence--Till death of deceased FIR was still in embryo and had not given any shape and FIR was recorded later on after due deliberation and consultation--So no reliance can be placed on such testimony to establish guilt of appellant, which would form basis for conviction--There has been a dishonest attempt by prosecution to improve case against appellant--Prosecution witnesses the complainant and injured witness, made dishonest improvement in prosecution story--Both prosecution witnesses claimed in Court statement that they witnessed occurrence in light of electric bulb littening on shop of one person--Occurrence took place in dark condition and therefore, it was next to impossible for witnesses to have identified all accused persons without there being sufficient source of light--Coming to injured witness in his Court statement made very vital improvements and he was confronted with his police statement, Injured witness deposed--It would not be safe lo place any implicit reliance on his (PW-2) testimony--Testimony of these prosecution witnesses have created a reasonable doubt in my mind as to real genesis of incident was suppressed and same affects core of prosecution’s ease, renders testimony of witnesses liable to be discredited--If evidence of these witnesses is rejected as untrustworthy, nothing survives of prosecution case--No doubt 30-bore pistol (P-3.) with four live bullets were allegedly recovered on pointing of appellant-accused but there is no report of Forensic Science Laboratory, Lahore that weapon had matched with crime empties--As no crime empty was recovered from place of occurrence which could be matched with weapon recovered--Contrary to it, report of Forensic Science Laboratory reflects that allegedly recovered weapon was in working condition, therefore, there is no incriminating recovery in this case available on record to connect appellant with commission of offence--There is no credible evidence to establish that AM (PW-I)- complainant and (PW-2), injured witness, have brought true facts before Court--Prosecution had badly failed to lead incriminating, corroborative/independent evidence to bring home guilt of accused--In this background, benefit of doubt is to be extended in favour of accused--Appeal accepted & criminal revision dismissed.

                                   [Pp. 19, 20, 23, 25 & 26] A, B, C, D, E, F, G & H

2009 SCMR 230 & 2010 SCMR 385 ref.

Mr. Junaid Farid Khan, Advocate with Appellants.

Mr. Ghulam Abbas Gondal, Deputy Prosecutor General for State.

Mr. Akhtar Saeed Bhatti, Advocate for Complainant.

Date of hearing: 13.2.2019.

 PLJ 2021 Cr.C. (Lahore) 14

Present: Miss Aalia Neelum, J.

AKHTAR HUSSAIN alias MANNI etc.--Appellants

versus

STATE etc.--Respondents

Crl. A. No. 310-J of 2012 & Crl. Rev. 858 of 2012, heard on 13.2.2019.

Judgment

The appellant-Akhtar Hussain alias Manni son of Muhammad Akram, Caste Qasab, Resident of Chak No. 34/KB, Tehsil Arifwala, District Pakpattan Sharif was involved in case F.I.R. No. 126 of 2010, dated 28.05.2010, offence under Sections 302/324/337-F(iii)/34 P.P.C, registered at Police Station Ahmad Yar, Arifwala, District Pakpattan Sharif and was tried by the learned Additional Sessions Judge, Arifwala. The learned trial Court seized with the matter in terms of judgment dated 29.06.2012 convicted the appellant under Section 302(b) PPC and sentenced him to undergo Imprisonment for life with the direction to pay Rs. 2,00,000/- as compensation to the legal heirs of the deceased and in case of default in payment thereof, he would further undergo six months S.I. Benefit of Section 382-B Cr.P.C. was also extended in favour of the appellant.

2. Feeling aggrieved by the judgment of the learned trial Court, the appellant-Akhtar Hussain alias Manni has assailed his conviction through filing instant appeal No. 310-J of 2012, whereas Ahmad Ali, complainant being dissatisfied with the quantum of sentence filed Crl. Rev. No. 858 of 2012. As both the matters are arising out of one and the same FIR, therefore, I intend to dispose of the same through this single judgment.

3. The prosecution story as alleged in the F.I.R (Ex.PA/1) lodged on the statement (Ex.PA) of Ahmad Ali-the complainant (PW-1) is that on 27.05.2010 at about 09:30 p.m, his (PW-1) cousin namely Khadim Hussain (the deceased) was present on guard duty near the shop of Abdul Razzaq Pawali, who reported the voice loudly and he (PW-1) was also present there, where Akhtar Hussain alias Manni, Muhammad Arshad alias Makha, Muhammad Akram and Arshad Kharal, all armed with pistol 30-bores, came there and on his (PW-1) view, Akhtar Hussain alias Manni made fire, which hit on the abdomen of Khadim Hussain (the deceased), who fell down. On hue and cry, Qurban, nephew of the complainant (died later on). Imam (PW-2), Allah Rakha (given up PW) and Talib Hussain (given up PW) came at the spot but accused Arshad Kharal made three successive fires, which hit on the left arm and left shoulder of Qurban. Arshad alias Kaka made fire, which landed on the right shin of Imam (PW-2), brother of the complainant. On hue and cry, the PWs came at the spot but the accused persons on seeing the PWs decamped away from the place of occurrence.

4. The motive behind the occurrence was stated to be a quarrel taken place between accused persons and the complainant side about few days prior to the incident and due to this grudge all accused persons in prosecution of the common intention had committed the present occurrence.

5. After the occurrence, the complainant appeared before the police, where Muhammad Aslam S.I. (PW-5) recorded statement (Ex.PA) of Ahmad Ali-the complainant (PW-1), endorsed police proceedings on it and sent the same to the police station through Muhammad Akram 271/C constable (not cited as witness) for formal registration of FIR.

6. On the basis of the statement (Ex.PA), formal F.I.R (Ex.PA/1) was chalked out by Muhammad Sharif A.S.I (PW-4). Thereafter, Muhammad Aslam, S.I (PW-5) being Investigating Officer, proceeded to the place of occurrence and collected blood-stained earth from the place of occurrence and took into possession through recovery memo. (Ex.PB). He (PW-5) also prepared the injury statement (Ex.PF) of Khadim Hussain (deceased), injury statement (Ex.PJ) of Imam
(PW-2) and injury statement (Ex.PK) of Qurban PW. Thereafter he (PW-5) also inspected the place of occurrence and prepared un-scaled site-plan (Ex.PL). The Investigating Officer (PW-5) also recorded statements of PWs under section 161 Cr.P.C. On 30.5.2010, the Investigating Officer (PW-5) summoned Ghulam Mustafa Chughtai draftsman (PW-3), who prepared the scaled site-plan of the place of occurrence (Ex.PE, Ex.PE/1 & Ex.PE/2) in the scale of one inch equal to 16 feet. On 5.6.2010, the Investigating Officer (PW-5) received information that injured Khadim Hussain died due to the injuries. After receiving information, he (PW-5) proceeded to RHC Muhammad Nagar where dead body of Khadim Hussain was lying and prepared inquest report (Ex.PG) of Khadim Hussain (deceased), application (Ex.PH) for post-mortem examination of Khadim Hussain (deceased) and escorted the dead body of the deceased along with police papers under the escort of Khursheed Ahmed 489/C (PW-6) for post-mortem examination. After post-mortem examination, the police official handed over the last worn clothes of the deceased i.e. Shalwar (P-1), Qameez (P-2) along with post-mortem report to the Investigating Officer (PW-5), who took into possession vide recovery memo. (Ex.PC). On 31.07.2010, the Investigating Officer (PW-5) arrested Akhtar Hussain (the appellant). During investigation on 05.08.2010 accused Akhtar Hussain (the appellant) made disclosure and got recovered weapon of offence i.e. pistol (P-3) alongwith four alive bullets (P-4/1-4), which was secured into possession by the Investigating Officer (PW-5) through recovery memo. (Ex.PD). The Investigating Officer (PW-5) also prepared site-plan of place of recovery (Ex.PD/1) and recorded the statements of PWs under section 161 Cr.P.C.

7. Having found the accused/appellant guilty, the Investigating Officer (PW-5) prepared report under Section 173, Cr.P.C. and sent, the same to the Court of competent jurisdiction. On 26.03.2011, the learned trial Court formally charge sheeted the appellant to which he pleaded not guilty and claimed trial. The prosecution in support of its version produced as many as eight (08) prosecution witnesses.

8. Ocular account of the occurrence in this case has come out from the statements of Ahmad Ali (PW-1)-the complainant and Imam (PW-2)-the eye-witnesses, whereas, Dr. Bashir Ahmad, Medical Officer, RHC Muhammad Nagar, Tehsil Arifwala, (PW-8) who conducted post-mortem examination of the dead body of the deceased, found the following injuries on his person:-

1)       A lacerated wound 1 cm x I cm into going deep on the right lumber region.

On 27.05.2010 at 11:30 PM, he (PW-8) also medically examined Qurban son of Imam and found the following injuries on his person.

1)       A lacerated wound of 01/2 cm x ½ cm going deep on the back of left side of chest.

2)       Laccated wound ½ cm x 1.5 cm on going deep the back side of axillary region.

3)       Lacerated wound ½ cm x 1.5 cm going deep on the medial part of the left upper arm (back side just parelles to Injury No. 2)

4)       Lacerated wound 1/5 cm x 1/5 cm going deep on the upper part of the left upper arm (lateral part)

On 27.05.2010, he (PW-8) also medically examined Imam son of Khan and found the following injuries on his person.

1)       A lacerated wound 2 cm x 2 cm on the middle part of front of right lower leg going deep.

On 5.6.2010 at 08:00 PM, he (PW-8) conducted the autopsy of Khadim Hussain son of Luqman and found the following injuries on his person.

1)       A healing lacerated wound 1 cm x 1 cm on the right lumber region.

2)       A stitched incised wound in the mid line of abdomen.

3)       Two drain wounds on the abdomen.

Opinion.

In my opinion the death is this case was occurred due to Injury No. 1 causing ruptured of blood vessels and viscera, Injury No. 1 was caused by fire-arm weapon, which was sufficient to cause death in ordinary course of nature. Probable time between injury and death was not mentioned and between death and post-mortem was within six hours.

The statements of remaining prosecution witnesses are formal in nature.

9. On 7.10.2011, the learned ADPP gave up PWs-Talib Hussain and Allah Rakha being won over, whereas Qurban has passed away and on 17.04.2012 the learned ADPP closed the prosecution evidence after tendering the report of Chemical Examiner (Ex.PQ) and the report of Punjab Forensic Science Agency (Ex.PR).

10. The appellant was also examined under Section 342 Cr.P.C, wherein he neither opted to appear as his own witness in terms of Section 340(2) Cr.P.C nor opted to produce defence evidence. While replying to a particular question that why the PWs had deposed against him, Akhtar Hussain alias Manni-the appellant made the following deposition:

“I am innocent in this case. All the PWs are inter-se related who deposed falsely against me who are interested, inimical and biased.”

11. The learned trial Court after evaluating the evidence available on record in light of arguments advanced from both sides, found the prosecution version proved beyond any shadow of reasonable doubt resulting into conviction of the appellant in the afore stated terms.

12. I have heard the arguments advanced by the learned counsel for the parties and have minutely perused the record available on the file.

13. I have noted that according to the prosecution case as set forth in the written complaint (Exh.PA) and F.I.R (Exh.PA/1) as well as in evidence, the appellant-Akhtar Hussain alias Manni was assigned the role of inflicting a fire-arm injury on the abdomen of Khadim Hussain (deceased) but the injury attributed to the appellant was an exit wound according to the post-mortem report of Khadim Hussain, deceased (Exh.PP). Ahmed Ali (PW-1)-the complainant deposed during cross-examination that, “It is correct that Khadim Hussain had sustained injuries when Akhtar was in front of him when he made fire”. The post-mortem report of Khadim Hussain, deceased indicates that there was no fire-arm injury present on the abdomen of the deceased as observed by the doctor. Dr. Bashir Ahmed (PW-8) deposed during examination-in-chief that:

“On 27.05.2010 I was posted at MO at RHC Muhammad Nagar. On the same day, I medically examined Khadim Hussain s/o Luqman aged 20 years brought by Ali Ahmad 65-C with history of injuries caused by opposite party by fire-arm at about 10:00 p.m. I examined at 11:30 P.M and found following injuries. A lacerated wound 1 cm X 1 cm into going deep on the right lumber region .... The probable duration between injury and examination was about two hours. However, final result regarding the injuries was kept in abeyance till the receipt of report from DHQ Hospital Sahiwal .... On 05.06.2010 at 08:00 PM I performed the autopsy of Khadim Hussain s/o Luqman aged 20 years R/O Wagha Chak No. 34/KB brought by Kburshced Ahmad 489-C identified by Muhammad Ibrahim s/o Muhammad Yar and Ahmad Ali s/o Khan Muhammad.”

Dr. Bashir Ahmed (PW-8) deposed during cross-examination that:

“There was only one injury on the person injured and that was on right lumber region. There is no mention of whether the injury was inverted or not. There is no mention regarding kind of weapon as well as kind of injury in Ex.PM MLR. Injury No. 1 mentioned in Ex.PP is the same with right lumber region mentioned in Ex.PM. No time between injury and death is mentioned in Ex.PP .... It may be academically medical dictionary meaning lumber region means loins/Qamar back of the person and as per simple English dictionary meaning of lumber is lower part of back and according to Oxford medical dictionary lumber means relating to the back of person.”

The fact remains that Ahmed Ali (PW-1) the complainant and Imam (PW-2), injured witness, specifically stated that the fire shot made by the appellant hit at abdomen of deceased, Khadim Hussain whereas during post-mortem examination, no such injury was found. In a case of this nature, when there is conflict between oral testimony and medical evidence which does not fit in with the ocular testimony, the oral evidence would certainly be affected and it would not be safe to rely on such evidence. In the instant case, the evidence of the witnesses to the occurrence relied on by the prosecution has seriously been affected by the medical evidence.

14. The occurrence had taken place at 9:30 p.m on 27.05.2010 in the area of Chak No. 34-K.B, situated within the territorial jurisdiction of Police Station Ahmad Yar, Arif Wala, which is at a distance of 8.00 kilometer from the place of occurrence. The incident was reported to the police by Ahmad Ali (PW-1)-the complainant through his oral complaint (Exh.PA) made to Muhammad Aslam, SI (PW-5)-Investigating Officer on 28.05.2010 at 12:20 am (midnight) at Chah Chokki Wala, whereupon FIR (Ex.PA/1) was chalked out by Muhammad Sharif, ASI (PW-4), on the same day at 12:45 a.m. (mid night). Ahmad Ali (PW-1)-the complainant in his Court statement stated that after the alleged occurrence he arranged tractor trolly and shifted Imam, Khadim Hussain and Qurban to the Hospital. He (PW-1) obtained Docket from the Police Station and he (PW-1) was asked to get the case registered, whereupon, he (PW-1) replied that the injured persons were in precarious condition and their medical treatment was more necessary instead of registration of the case. Thereafter, he (PW-1) took them to the Hospital. After initial treatment of the injured, they were referred to DHQ Hospital, Sahiwal. Khadim Hussain-deceased was further referred to Lahore, whereas remaining two injured were got admitted in DHQ Hospital, Sahiwal. On arrival at Lahore, they were informed that due to bomb blast all the Hospitals were not vacant for ordinary patients and they were referred back to Sahiwal. Thereafter, Khadim Hussain-deceased referred to Nishtar Hospital, Multan, where he was admitted then he (PW-1) along with Allah Rakha (given up PW) and Talib Hussain (given up PW) returned back to their village 34-K.B. and when he (PW-1) was going for registration of the case in the company of Talib Hussain (given up PW) and Allah Rakha (given up PW) to the Police Station, he (PW-1) met with Muhammad Aslam, SI (PW-5)-I.O near Chak Chokki Wala. who recorded his statement (Ex.PA), whereas on perusal of the inquest report (Ex.PG), it reveals that the inquest proceedings were taken place on 5.6.2010. More significantly, the inquest report does not bear any FIR number. This is beside the FIR having been registered at Police Station at 12:45 a.m. (midnight) on 28.05.2010. There is no reason why the police could not even mention number of FIR and its details in the inquest report (Ex.PG). Doctor Bashir Ahmad, Medical Officer (PW-8) deposed during his Court statement that he prepared post-mortem examination report (Ex.PB) and also attested inquest report of Kbadim Hussain-deceased (Ex.PG) and also endorsed the injury statement (Ex.PH), however, he has not stated that he also endorsed copy of FIR. It also reveals from the injury statement (Ex.PF) of Khadim Hussain then injured that same was prepared against Rapt No. 19 dated 27.05.2010 incorporated in Roznamcha of Police Station Ahmad Yar by Muhammad Sharif, ASI (PW-4). From the MLC of Khadim Hussain-the deceased (Ex.PM) it reveals that the injured was brought to the Hospital by Ali Ahmad, 65/C at 11:30 p.m on 27.5.2010 and no relative was accompanying him and thereafter, he was referred to DHQ Hospital, Sahiwal for further treatment. The prosecution has not placed on the record any other document reflecting treatment provided to Khadim Hussain-the deceased at DHQ Hospital, Sahiwal and Nishtar Hospital, Multan. The probable duration of injury was mentioned within two hours in MLC (Ex.PM) of Khadim Flussain then injured. The time of reporting incident was 12.20 a.m. on 28-05-2010. It is practically not possible to come back to Chak Chokki Wala after taking injured to Lahore, then from Lahore to Sahiwal and from Sahiwal to Nishtar Hospital, Multan within 50 minutes. No death certificate has been placed on the record issued by Nishtar Hospital Multan to affirm the date and time of death of Khadim Hussain. In the post mortem examination report (Ex.PP) the column of probable duration between injury and death was left blank, whereas Muhammad Aslam, SI-I.O. (PW-5) deposed during his examination in chief that on 28.05.2010 he recorded the statement (Ex.PA) of Ahmad Ali-the complainant (PW-1) at Chah Chokki Wala at 12:20 night on 28.05.2010. Thereafter, he (PW-5) dispatched oral complaint (Ex.PA) through Muhammad Akram 271/C for registration of the formal FIR and then he (PW-5) proceeded to the place of occurrence and prepared the injury statement of Khadim Hussain-deceased (Ex.PF) and also prepared inquest report of Khadim Hussain-the deceased (Ex.PG). Whereas, on perusal of injury statement of Khadim Mussain-deceased (Ex.PF) it reveals that same was prepared by Muhammad Sharif, ASI (PW-4). He (PW-5) stated that on 05.06.2010 on receiving the information of death of Khadim Hussain due to fire-arm injury, he (PW-5) proceeded to RHC Muhammad Nagar, where dead body of Khadim Hussain-the deceased was lying and he (PW-5) prepared injury statement and inquest report and handed over the dead body to Khurshid Ahmad 489/C to escort the dead body to the mortuary. The deposition of Muhammad Aslam, SI-I.O (PW-5) is contrary to the deposition of Ahmad Ali-the complainant (PW-1),who stated that first he got prepared Docket from the police station and thereafter, he took the injured to the Hospital for providing treatment, however, Muhammad Aslam, SI (PW-5) deposed that he prepared injury statement (Ex.PF) after recording statement (Ex.PA), whereas on perusal of injury statement (Ex.PF) it reveals that the same was prepared against Rapt No. 19 dated 27.05.2010 written by Muhammad Sharif. ASI (PW-4) and Muhammad Sharif, ASI (PW-4) has not stated a single word that he ever prepared any Rapt No. 19 dated 27.05.2010 and Khadim Hussain appeared before him in injured condition and he referred him through Ali Ahmad 65/C for medical treatment to RHC Muhammad Nagar, Tehsil Arif Wala. All these facts reflect that till the death of Khadim Hussain FIR was still in embryo and had not given any shape and FIR was recorded later on after due deliberation and consultation. So no reliance can be placed on such testimony to establish the guilt of the appellant, which would form the basis for conviction.

15. I, have also carefully gone through the evidence of Ahmed Ali (PW-1)-the complainant and Imam (PW-2), injured witness, but I do not think I can place any reliance on it for the purpose of maintaining the conviction of the appellant-Akhtar Hussain alias Manni. There has been a dishonest attempt by the prosecution to improve the case against the appellant-Akhtar Hussain alias Manni. The prosecution witnesses Ahmed Ali (PW-1)-the complainant and Imam (PW-2), injured witness, made dishonest improvement in prosecution story. Both prosecution witnesses claimed in the Court statement that they witnessed the occurrence in the light of electric bulb littening on the shop of one Yousaf Qasai. Contrary to this during cross-examination Ahmed Ali (PW-1)-the complainant deposed that, “I had stated to the police in Ex.PA that electric light was on at the time of occurrence and at the place of occurrence, confronted with Ex.PA where it is not so recorded.” Whereas Imam (PW-2), injured witness deposed that, “I had made statement to the police. I’had stated to the place that bulb was lightening at the shop of Yousaf Qasai at the place of occurrence. Confronted with Ex.DA where it is not so recorded.” Ghulam Mustafa Chughtai (PW-3)-draftsman deposed during cross-examination that, “No source of light has been mentioned in the scaled site-plans on the place of occurrence.” The occurrence took place at about 9:30 p.m. in the dark condition and therefore, it was next to impossible for the witnesses to have identified all the accused persons without there being sufficient source of light. Ghulam Mustafa Chughtai (PW-3)-draftsman also deposed during cross-examination that, “Blood stained earth has been not mentioned in the scaled site-plan Ex.PE, Ex.PE/1 and Ex.PE/2. It is also not mentioned that I.O collected any blood stained earth from the place of occurrence. Similarly it has not been mentioned in the aforementioned site-plans whether I.O ceased any crime empty from the place of occurrence...No point has been mentioned from where the accused were present and fired on the deceased and injured PWs. The distance between Point No. 1 to Point No. 4 is 40 feet and from Point No. 1 to 2 is 56 feet and from Point No. 4 to Point No. 3 is 73 feet and from 4 to 2 is 40 feet.” Similarly, Muhammad Aslam S.I. (PW-5)-Investigating Officer deposed during cross-examination that, “Presence of Ahmad Ali complainant has not been specifically shown by me in the both site-plans, as eye-witness, however, 1 have mentioned that occurrence was witnessed by the eye-witnesses. No eye-witness by his name is mentioned in both site-plans of the place of occurrence. Point No. 1 does not indicate where the Akhtar Hussain accused was present when he fired shot at Khadim Hussain deceased. Similarly the case of the other accused have not been mentioned when they fired at their respective victim.” Ahmed Ali (PW-1)-the complainant further deposed during cross-examination that, “I had stated to the police that I was also guarding the village along with deceased Khadim Hussain, confronted not so recorded. I got recorded in my statement Ex.PA that on my alarm, Imam, Qurban, Talib and Allah Rakha attracted at the place of occurrence, confronted with Ex.PA where it is not so recorded.” However, he (PW-1) admitted during cross-examination that, “I cannot recollect the name of Chokidar again stated that name of Chokidar is Munir. It is correct that he has not been cited or produced as witnesses in this case in order to prove this fact.” Coming to injured witness-Imam (PW-2), in his Court statement made very vital improvements and he was confronted with his police statement, copy of which is Exh.DA. Imam (PW-2), injured witness deposed that “I had stated to the police in my statement Ex.DA that I, Allah Rakha, Talib and Qurban were present in our house at the time of occurrence. Confronted with Ex.DA where it is not so recorded. I had not stated before the police in Ex.DA that my son Qurban aged 12 years had sustained injury by the fire of Arshad Kharal. Confronted with Ex.DA where it is so recorded in portion A to A. I had not stated to the police that it was me who was present in the house of Luqman, confronted with Ex.DA where it is so recorded, volunteered I and Luqman reside in one and the same house. I had not stated to the police that I heard the noise of fire shot made by Arshad Kharal at Qurban, I heard the noise and rushed to the mattled road. Confronted with Ex.DA where it is so recorded in portion B to B. I had stated to the police that at the time of occurrence, Akhtar, Arshad alias Maka and Arshad Kharal had came to the spot together, confronted with Ex.DA where it is not so recorded. I had stated to the police that I had raised noise and then Arshad alias Maka had fired at me. Confronted not so recorded. I had stated to the police that accused Arshad alias Maka has ajso made fire at me. Confronted with Ex.DA not so recorded. However, it is specifically mentioned that Akhtar Hussain alias Matti instigated his brother to made fire shot at me. I had stated in my statement Ex. DA that all the PWs had witnessed the occurrence. Confronted with Ex.DA where it is not mentioned that any eye-witnesses had seen the occurrence. I had stated to police that Arshad Kharal made three fire shot at Qurban hitting on the front of left upper arm and two on the back of left shoulder. Confronted with Ex.DA where it h not so recorded.” It would not be safe to place any implicit reliance on his (PW-2) testimony. The testimony of these prosecution witnesses have created a reasonable doubt in my mind as to the real genesis of the incident was suppressed and same affects the core of the prosecution’s case, renders the testimony of the witnesses liable to be discredited. If the evidence of these witnesses is rejected as untrustworthy, nothing survives of the prosecution case. The Hon’ble Supreme Court of Pakistan in the case of “Muhammad Rafique and others v. The State and others” (2010 SCMR 385) where in it has been held as under:

“This Court in the case of Saeed Muhammad Shah v. State 1993 SCMR 550 observe that if a witness improves his statement on material aspects of the case then such improvement is not worthy of reliance and the evidence of such witness requires corroboration. In the case of Khalid Javed v. State 2003 SCMR 1419 while reiterating the above rule, it was further observed that such witness is to be considered to be wholly unreliable and it is not advisable to place explicit reliance upon his evidence.”

I, have noticed that no doubt 30-bore pistol (P-3.) with four live bullets (P-4/1-4) were allegedly recovered on the pointing of Akhtar Hussain alias Manni, appellant-accused but there is no report of the Forensic Science Laboratory, Lahore that the weapon had matched with the crime empties. As no crime empty was recovered from the place of occurrence which could be matched with the weapon recovered. Contrary to it, the report of Forensic Science Laboratory Exh.PR reflects that allegedly recovered weapon was in working condition, therefore, there is no incriminating recovery in this case available on record to connect the appellant with the commission of offence.

16. In view of the above circumstances, the conclusion I arrived at is that there is no credible evidence to establish that Ahmed Ali (PW-1)-the complainant and Imam (PW-2), injured witness, have brought true facts before the Court. The prosecution had badly failed

to lead incriminating, corroborative/independent evidence to bring home guilt of the accused. In this background, the benefit of doubt is to be extended in favour of the accused. In the case of Muhammad Akram v. The State (2009 SCMR 230), wherein it has been held as under:

“----Benefit of doubt--Principles--For given the benefit of doubt it is not necessary that there should be many circumstances creating doubts--Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefit, not as a matter of grace and concession, but as a matter of right.”

I, therefore, accept in toto Criminal Appeal No. 310-J of 2012 filed by Akhtar Hussain alias Manni, appellant, as a result whereof conviction and sentence recorded by the learned trial Court vide judgment dated 29.06.2012 is set aside and the appellant is ordered to be acquitted of the charge in case F.I.R. No. 126 of 2010,, dated 28.5.2010, offence under Sections 302/324/337-F(iii)/34 P.P.C, registered at Police Station Ahmad Yar, Arifwala, District Pakpattan Sharif. The appellant-Akbtar Hussain alias Manni son of Muhammad Akram, Caste Qasab, Resident of Chak No. 34/KB, Tehsil Arifwala, District Pakpattan Sharif is on bail, therefore, his surety stands discharged.

17. So far as Criminal Revision No. 858 of 2012 filed by the complainant, namely Ahmad Ali for enhancement of sentence of the appellant awarded by the learned trial Court is concerned, for the reasons afore-stated, the same is devoid of any legal force, which is accordingly dismissed.

(A.A.K.)          Appeal accepted