AKHTAR ALI and others vs THE STATE

' CH. IJAZ AHMED, J.--- We intend to decide captioned appeals by one consolidated judgment having similar facts and law arising out of the common impugned judgment of the Lahore High Court, dated 11-3-2002 wherein Criminal Appeal No,1043 of 1998 and Criminal Appeal No,917 of 1998 filed by the appellants against their conviction were dismissed. The detailed facts have already been mentioned in para.2 of the impugned judgment. However, necessary facts out of which the aforesaid appeals arise are that the appellants along with their acquitted co-convict namely Muhammad Ashraf alias Papoo, Waris Ali, Niaz Hussain alias Naja, Mushtaq alias Makha and Majid alias Maujoo were involved in a case F.I.R.No,189 of 1998 which was registered at Police Station Jaranwala, District Faisalabad on 9-2-1998 under sections 302/452/394/397/449/109/34, P.P.C. For the murder of Muhammad Mushtaq and Sadiq Ali. The Investigating Agency investigated the matter and submitted challan against the appellants and 5 others before the competent Court.

The learned trial Court (learned Special Judge, Special Court of Anti-Terrorism (Punjab), Faisalabad Division, Faisalabad) vide its judgment, dated 26-9-1998 convicted and sentenced the appellants as under:-- Name of accused Under section Sentence Muhammad Ilyas, Arshad alias Neela,302/34, P.P.C. Death punishment as Tazeer on each count with a fine of Rs,50,000.

In case of default of Maujoo payment of fine they have to Akhtar Ali, Majid aliasundergo 6 years' R.I. In case if fine is recovered the same shall be paid to legal heirs of both the deceased as compensation. -do- 449, P.P.C. Life imprisonment each with a fine of Rs,10,000 each. In default of payment of fine they have to undergo further R.I. For 6 years, -do- 393, P.P.C. Seven years' R.I. Each with a fine of Rs,10,000 each. In default of payment of fine 2 years' R.I. Fine if realized will be paid to the legal heirs of both the deceased. -do- under section 7 of Anti- Terrorism Act, 1997Death punishment for each count with a fine of Rs,50,000 each. In default 6 years' R.I.

Muhammad Ashraf alias Papoo, Niaz Hussain alias Naja, Mushtaq alias Makha, Waris Ali109, P.P.C. read with 302, P.P.C.L.I. Each. - do- 109, P.P.C. read with 393, P.P.C.Two years' R.I. Each. All the sentences shall run concurrently with benefit of section 382-B, Cr.P.C.

2. Appellants and their co-convict being aggrieved filed Criminal Appeal No,1043 of 1998, Criminal Appeal No,917 of 1998, Criminal Appeal No,98/J of 1998 and Criminal Appeal No,163/J of 1998 in the Lahore High Court. The learned High Court dismissed the appeals of the present appellants vide impugned judgment, dated 11-3-2002 whereas learned High Court had accepted the appeals of their co-convict through the impugned judgment. Appellants being aggrieved filed Criminal Petition No,360-L of 2002 and J.P. No,154 of 2002 before this Court which were fixed on 22-9-2003.

Leave was granted in the following term:-- "We ex facie are of the view that contentions raised by the learned counsel for the petitioners need reappraisal of evidence in the light of principles laid down by this Court for safe administration of criminal justice. Accordingly leave to appeal is granted to reappraise the evidence in the light of the contentions raised."

3. The learned counsel for the appellants submit that the complainant Hidayatullah P.W.14 met Barkhurdar Ahmad Inspector/ S.H.O. Police Station Jaranwala at Jhal Boot-e-Wala who recorded his statement on 9-2-1998 regarding the incident in question. The complainant did not nominate any person in his statement as is evident from contents of Exh.P.J. Which was read over to him and the complainant had signed it in token of its correctness and formal F.I.R. Was registered. The complainant Hidayatullah P.W.14 also got his supplementary statement recorded wherein he had introduced altogether new story by nominating appellants and acquitted co-convict of the appellants with specific role and specific injuries were attributed to them which were inflicted by them to both the deceased. They further maintain that learned High Court had erred in law to maintain the conviction of the appellants without adverting to the following circumstances arising out of the evidence on record:--

(a) Appellants were not named in the F.I.R. Wherein it was specifically mentioned that unknown four persons had committed offence.

(b) F.I.R. Was lodged after delay of 10/11 houRs,

(c) Akhtar Ali appellant was residing in the same Dera where the occurrence had taken place.

(d) In spite of the presence of the Akhtar Ali at Dera, his name was not mentioned in the first statement of the complainant P.W.14 and in formal F.I.R.

(e) Reasons advanced by the learned High Court did not appeal to the common sense that the complainant could not be expected to behave like a normal person whose two real brothers were murdered and was not controlled in senses. Therefore, his non-mentioning the names of the appellants in his first statement before P.W.16 Inspector/S.H.O. Could be condoned.

(f) Prosecution evidence is full of contradictions and this fact was not considered by the learned High Court in the impugned judgment in its true perspective.

(g) The prosecution story was accepted without application of mind in violation of the dictum laid down by this Court and rejected the defence version without putting the same in juxtaposition with the prosecution story.

(h) Empties were recovered on 9-2-1998 and the gun was recovered on 21-2-1998 which was sent on 24-2-1998 to Forensic Science Laboratory, therefore, learned High Court was not justified to rely the report of F.S.L.

(i) The learned High Court had acquitted their co-convict Majeed on the basis of same evidence and there was no independent corroboration to connect the appellants with the commission of offence.

4. The learned Deputy Prosecutor-General has supported the impugned judgment.

5. We have considered the submissions made by learned counsel for the parties and perused the record. It is an admitted fact that the complainant P.W.14 did not mention name of the accused persons in his first statement which was recorded by the Inspector/S.H.O. P.W.16 and formal F.I.R.

Was recorded. According to which four unknown persons had committed the offence whereas the complainant had nominated the appellants and his acquitted co-accused in his supplementary statement before the Investigating Officer on the same day coupled with the fact that Akhtar Ali convict was also residing in the same Dera where the occurrence had taken place. In case the contents of the first information report and supplementary statement are put in a juxtaposition then it is crystal clear that the complainant had taken altogether U-Turn from his previous stand.

This fact creates doubt in the prosecution story and this fact was not considered by the learned High Court in its true perspective in the impugned judgment. It is, therefore, established that the name of the appellants along with their acquitted co-convict did not appear in the F.I.R., therefore, it is an improvement made by the complainant in the supplementary statement, therefore, the statement of the complainant involving the appellants in the case is obviously false and no reliance can be placed therein in view of all attending circumstances available on the record and learned High Court was, therefore, not justified to uphold the sentence of the appellants. See Muhammad Rafique's case 1994 SCMR 1169, Qalab Ali's case 2005 SCM R 1857, Rahab's case 2001 SCM R 1745, Rahab's case 2002 SCM R 233 and Khalid Javed's case 2003 SCM R 1419. We have also re-examined the record in the interest of justice and fair play qua the finding regarding guilt of the appellants whereas the learned High Court had acquitted their co-convict namely Majid alias Maujoo who was also awarded death sentence having same role attributed to him as assigned to the present appellants. The learned High Court had acquitted one convict of the appellants mentioned above and upheld the sentence of the appellants without highlighting any independent corroboration available on record qua the appellants so that the case of the appellants could be distinguished from the acquitted co-convict. It is pertinent to mention here that the learned High Court had also acquitted four other co-convicts as mentioned above on the basis of same evidence who were involved by the complainant in his supplementary statement that convicts had committed the offence with the connivance of the four aforesaid acquitted co-convicts. It is a settled law that eye-witnesses found to have falsely implicated five out of eight accused then conviction of remaining accused on the basis of same evidence cannot be relied upon without independent corroboration. See Ghulam Muhammad's case PLD 1975 SC 588, Sheral alias Sher Muhammad's case 1999 SCM R 697 and Ata Muhammad's case 1995 SCM R 599. It is also a settled law that credibility of the ocular evidence. Is not divisible. See Faiz Bakhsh's case PLD 1959 P.C. 24, Nadia's case 42 Cr.LJ 53, Muhammad's case PLD 1954 FC 84, Shear Bahadar's case 1972 SCM R 651 and Muhammad Afsar's case PLD 1954 FC 171. It is also a settled maxim when a witness improves his version to strengthen the prosecution case, his improved statement subsequently made cannot be relied upon as the witness has improved his statement dishonestly, therefore, his credibility becomes doubtful on the well known principle of criminal jurisprudence that improvements once found deliberate and dishonest cast serious doubt on the veracity of such witness. See Hadi Bakhsh's case PLD 1963 Kar.

805. It is also an admitted fact that the F.I.R. Was lodged by the complainant after considerable delay of 10/11 hours without explaining the said delay. The F.I.R. Was also not lodged at police station as mentioned above. 10/11 hours delay in lodging of F.I.R. Provides sufficient time for deliberation and consultation when complainant had given no explanation for delay in lodging the F.I.R. It is enough time for complainant to fabricate the story even then the complainant did not nominate appellants and their acquitted co-convicts, therefore, possibility cannot be ruled out qua false implication of the appellants. It is also a settled law that delay of 10/11 hours in making F.I.R. Not explained leads to inference that the occurrence was unwitnessed. In the case in hand this fact is also established in view of supplementary statement and conduct of the eye-witnesses. It is also a settled law that unexplained delay in registration of F.I.R. Specially in the circumstances of the case creates lot of doubt qua the story of the prosecution specially the stand taken by Akhtar Ali accused while reply question No,10 which is to the following effect:-- "Q.No,10. Why this case against you and why the P.Ws. Has deposed against you?

' Answer. All the P.Ws. Of this case are inter se related and also with the deceased. There were illicit relations between Zaib-un-Nisa daughter of the complainant and one Master Sharif who was influential and his real brother is in Police Department. In fact I used to restrain not to continue relation with Zaib-un-Nisa and her relations with Master Sharif but Mst. Zaib-un-Nisa and her relative felt annoyed since it was a blunt/blind murder. Mst. Zaib-un-Nisa and her relatives in consultation with Master Sharif and his brother (police official) roped me into this false case."

6. It is also a settled law that F.I.R. Is the document which is entered into under section 154, Cr.P.C.

Book maintained at the police station at the application of the complainant. It brings the law into motion. The police under section 156, Cr.P.C. Started investigation of the case. Any statement or further statement of the complainant recorded during investigation by the police would neither be equated with F.I.R. Nor read as part of it, therefore, subsequent supplementary statement is also considered as statement recorded under section 161, Cr.P.C. Which is not signed or thumb-marked as held by this Court in Khalid Javed's case (supra). The learned High Court had misread the evidencd on record in violation of the dictum laid down by this Court in various pronouncements as mentioned above, therefore, conviction of the appellants is not sustainable in the eyes of law.

The learned High Court had erred in law to uphold their conviction. We have re-examined the evidence in the interest of justice and fair play, as mentioned above, we are of the view that the defence plea appears to be reasonable, therefore, appellants are entitled to the benefit of doubt as of right and not as a matter of grace as prosecution has not proved its case against the appellants beyond any shadow of doubt. See Nadeem-ul-Haq's case 1985 SCMR 510, Chandoo's case 1986 SCM R 720.

7. For what has been discussed above, the appeals are allowed. Convicts, Akhtar Ali, Muhammad Ilyas and Arshad alias Neela are acquitted of the charge and set at liberty forthwith, if they are not IL required in any other case.