GHULAM MURTAZA Versus State

AHMED ALI M. SHAIKH, J .--- By this consolidated judgment, we intend to decide Criminal Appeal No.D-58 of 2005 and Criminal Jail Appeal No.D-66 of 2005 as both have arisen out of a common judgment dated 30-6-2005 passed by 1st Additional Sessions Judge and Special Judge for STA Taluka Dokri and Shandadkot, in Special Case No.33 of 2006, Crime No.75 of 1995, Police Station Badeh for offence under sections 302(b), 324 and 34, P.P.C., whereby appellants were convicted and sentenced to suffer R.I. for life and to pay compensation of Rs.50,000 to the legal heirs of the deceased and in default thereof, they were to suffer R.I. for six months. Appellant Ghulam Murtaza was also convicted under section 324, P.P.C. and sentenced to suffer R.I. for ten years and to pay fine-of Rs.10,000 in default thereof to undergo R.I. for six months more. While extending benefit of doubt co-accused Mazhar Ali was acquitted.

2. Vide F.I.R. No.75 of 1995 complainant Muhammad Jam set the law into motion stating therein that on 30-12-1995 he along' with Muhammad Paryal and cousin Lashkar Khan went to Badeh on a donkey cart. Before sunset they left Badeh Town for their village. In the meanwhile P.W. Ali Muhammad and his cousin Anwar Ali Chandio also joined them. At about sunset time when they reached at the abandoned canal at the Katcha road, suddenly Khair Muhammad Chandio, Muhammad Juman Chandio both armed with guns, Muhammad Malook Chandio and Ghulam Shabir Chandio armed with rifles emerged from the jungle. They challenged them. On which complainant party alighted from the donkey cart. Accused Khair Muhammad, Muhammad Jam, Muhammad Malook and Ghulam Shabir made straight fires with their respective. weapons upon the complainant party with intention to commit their murder which hit Muhammad Paryal and Ali Muhammad. Complainant also received the fire-arm injury at the thigh of his right leg. They all fell down. After raising slogans all the accused fled away towards jungle. Complainant party found that Muhammad Paryal had fire-arm injury at left side of his chest and was dead whereas Ali Muhammad had fire-arm injury at his belly and was unconscious. Leaving the P.Ws. over the dead body of Muhammad Paryal complainant brought the injured Ali Muhammad by a donkey cart at police station where he lodged the report.

3. During the course of investigation Investigating Officer on 17-1-1996 arrested accused Khair Muhammad. Muhammad Malook, Muhammad Juman and Ghulam Shabir but while submitting the challan he let off the above accused and placed their names in Column No.2 of the charge-sheet.

4. It is pertinent -to mention here that on 14-1-1996 further subsequent statement of the complainant was recorded in which he has taken the somersault and introduced the names of appellants viz. Shahzado Mazhar Ali and Ghulam Murtaza with clarification that accused Khair Muhammad and other Chandio are not responsible for the offence and they were innocent and now he does not want to implicate innocent persons. The subsequent statement reveals that the complainant tried to justify his new version on the ground that at the time of incident he was not in proper senses and he came forward with new version after he met the P.Ws. namely Muhammad Paryal, Anwar Ali and Lashkar Khan who informed him that they have identified the accused at the spot.

5. A formal charge was framed in which appellant pleaded not guilty and claimed trial.

6. To substantiate its case, prosecution examined Dr. Abdul Ghafoor as Exh.11, he produced post-mortem report as Exh.11-A, complainant Muhammad Jam as Exh.12, he produced F.I.R. and his further statement as Exh.12-A and B respectively. P.W. Anwar Ali as Exh.13, he produced his 164, Cr.P.C. as Exh.13-A, P.W. Ali Muhammad as Exh.14, he produced his 164, Cr.P.C. statement as Exh.14-A, Investigating Officer Ghulam Sarwar as Exh.15, he produced Mashirnama of injuries, Wardat, inquest report and memo. of arrest of accused as well as recovery of pistol from accused Shahzado and report of Chemical Examiner as Exh.15-A to 15-G respectively, P.W. Dr. Akhtar Ali as Exh.16. He produced medical certificate as Exh.16-A. Tapedar Ali Nawaz as Exh.17, he produced sketch of Wardat as Exh.17-A, P.W. Roshan Ali as Exh.18, he produced memo. of arrest of accused Shahzado as Exh.18-A, P.C. Haroon corps bearer as Exh.20, he produced receipt of dead body of deceased Muhammad Paryal as Exh.20-A. P.W. Lashkar Khan as Exh.22, he produced 164, Cr.P.C. statement as Exh.22-A, and lastly P.W. Niaz as Exh.23 who is Mashir of place of Wardat and the prosecution closed its side vide statement of learned Special Public Prosecutor as Exh.26.

7. Statements of accused under section 342, Cr.P.C. were recorded in which accused-appellants denied the allegations levelled against them by the prosecution and claimed their innocence and false implication. However, they neither led any evidence in their defence nor examined themselves on oath to disprove the charge.

8. After hearing the learned Advocates of accused appellants and Special Public Prosecutor, the trial Court passed the judgment as stated above.

9. We have heard the learned counsel for the appellants and the State Counsel, perused the record and proceedings.

10. There are two versions of the prosecution case. First version has been given by the complainant in his F.I.R. but after 15 days he came forward with new version in which he implicated the appellants and acquitted accused. Now we have to examine and assess the evidence of material witnesses adduced by the prosecution during trial for appreciation and just conclusion of the appeals.

11. P.W. Muhammad Jam/complainant in his deposition stated that on 30-12-1995 he along with deceased Muhammad Paryal P.Ws. Anwar Ali, Lashkar Khan and Ali Muhammad were going on donkey cart to village Ali Murad Chandio from Badeh Town. At about sunset time, when they reached near the abandoned Wah on the path leading towards village Sahab Khan Malano they came across armed persons who immediately fired upon them which hit him. P.W. Ali Muhammad and deceased Muhammad Paryal. Thereafter he went to police station for report while leaving the P.Ws. Anwar Ali and Lashkar Khan, took injured Ali Muhammad to the hospital for medical treatment. Prior to this incident he had got enmity with people of Chandio caste, and therefore, he suspected them to have committed this offence. However, he did not identify any of the accused at that time and therefore, due to suspicion he nominated people of Chandio caste as accused in the case. His deposition further reveals that latter on P.Ws. Anwar Ali, Lashkar Khan and Ali Muhammad (injured) disclosed that they had identified the accused persons they were not Chandios who were nominated by him. Police had recorded the report on his narration and visited the place of incident. Police examined the other witnesses and ultimately challaned the present accused, Shahzado Jhatial, Ghulam Murtaza and Mazhar Ali Magsi. He, however, deposed in following words:---

'I had not identified any of the present accused at the time of incident. Police recorded my further statement on the basis of the statement of witnesses."

12. It is worth mentioning that so far the evidence of Muhammad Jam complainant is concerned same is not helpful for the prosecution particularly when he could not identify the appellants/accused present in Court, during deposition therefore, in any circumstances his evidence merits no consideration and same is liable to be discarded, so far the prosecution version is concerned.

13. P.W. Anwar Ali in his deposition stated that about 6/7 years back, he, complainant Muhammad Jam, P.Ws. Lashkar Khan, Ali Muhammad and Muhammad Paryal were attacked by accused Shahzado, Ghulam Murtaza and Mazhar Ali, at sunset time, while they were going from Badeh Town. Accused Shahzado who was armed with pistol, fired from his pistol which hit deceased Muhammad Paryal, who died on the spot. Accused Ghulam Murtaza fired from his rifle which hit Ali Muhammad, while accused Mazhar fried from his pistol which hit complainant Muhammad Jam. He further stated that they brought the injured to police station where Muhammad Jam lodged F.I.R.

Note: P.W. Anwar Ali did not depose to the effect that accused present in Court were same . In cross-examination, in reply of suggestion he stated that it is correct to suggest that in my 164, Cr.P.C. statement I had disclosed that the complainant had given the name of Chandio caste due to enmity. While confronting with his 164, Cr.P.C. statement he replied as under:---

"It is incorrect that I had stated in my 164, Cr.P.C. statement that I had not seen the accused Chandio by caste while committing the offence. It is incorrect to suggest that I had stated in my 164, Cr.P.C. statement that accused Chandio by caste did not fight with us" (confronted so recorded).

In a further suggestion he replied that, it is incorrect to suggest that' my signature was obtained on written memo. of 164, Cr.P.C. but my statement was not recorded before concerned Magistrate and on the dictation of the Investigating Officer the contents of 164, Cr.P.C. statement were recorded in the office of concerned Magistrate. He further admitted in his cross-examination. "It is correct to suggest that the place of incident was situated in the area of jungle and there were many trees and bushes at the time of incident. The complainant shifted the injured on donkey cart and brought him at police station where he lodged his report. He further admitted in following words:---

"I along with complainant brought the injured at police station but I do not know who removed the dead body from the place of incident for post-mortem."

He went on to say that after 24 or 25 days of incident, his 161, Cr.P.C. statement was recorded at Police Station Badeh along with injured Ali Muhammad. Lastly in a suggestion he replied that it is incorrect to suggest that complainant party after receiving the compensation let off the real culprits namely Khair Muhammad, Muhammad Juman, Muhammad Malook and Ghulam Shabbir as their names were nominated in the F.I.R. Subsequently we involved the accused falsely.

14. Apart from above facts it is admitted by P.W. Anwar Ali that at the time of occurrence he went to police station with the complainant hence it is very strange that he did not disclose the names of appellants to the complainant. Had he witnessed the occurrence and identified the accused, naturally he would have informed the complainant at the time of lodging of F.I.R. Not only this but he remained mum for 24/5 days which also creates doubt about the truthfulness of his version. Very important point which attracted us pertains to the specific question regarding receiving compensation from the real culprits namely Khair Muhammad, Muhammad Juman, Muhammad Malook and Ghulam Shabir who are nominated in the F.I.R. have, been exonerated by the complainant party.

15. From the deposition of P.W. Anwar Ali, it is evident that at the time of deposition he could not identify the appellants as the accused of the occurrence. Very interestingly he admitted that he along with complainant went to the police station and his 161, Cr.P.C. statement was recorded after 24 or 25 days of the incident. The careful examination of his evidence suggests that neither he had seen the occurrence nor present at the time of occurrence nor identified the real culprits of this unhappy episode. No explanation has come forward by the prosecution for recording his 161, Cr.P.C. statement with such inordinate and shocking delay, therefore, presence of above P.W. at the time of occurrence and identity of accused is highly doubtful.

16. The 164, Cr.P.C. statement of above P.W. recorded on 25-1-1996 and no notice as required under section 265-J, had been given to the accused.

17. P.W. Ali Muhammad who also received injuries at the time of occurrence in his deposition has given the same version like P.W. Anwar Ali but he specifically mentioned the time of occurrence at about 6-30/6-40 p.m. He further stated that after receiving injuries he was in serious condition. In reply of suggestion he stated that "after 4/5 days of the incident my statement under section 164, Cr.P.C. was recorded by the police and statement of P.W. Anwar Ali was not recorded on the same day before police". In reply of another suggestion he stated as under: ---

"I along with dead body was removed from place of incident on donkey cart towards RHC Badeh but in the way one taxi car was brought in which we were removed to the hospital for my treatment, certificate and post-mortem of dead body of Muhammad Paryal". He further replied that, "after passing of 30 minutes or one hour I was referred to CMC Hospital Larkana in ambulance for my treatment". He further stated that, "my 164, Cr.P.C. statement was recorded after 4/5 days of the incident. It is correct to suggest that there were bushes, trees and one abandoned canal at the place of incident and it was a jungle area. In reply of important but relevant suggestion he said that, " it is correct to suggest that time of incident was dark hours of the night. He further gave an admission that, it is correct that complainant had given the names of accused/real culprits persons who were Khair Muhammad, Muhammad Juman and Ghulam Shabir in the F.I.R . It is incorrect to suggest that Mazhar Ali and Ghulam Murtaza were not the real culprits of the incident."

18. The deposition of above P.W. Ali Muhammad who happens to be star-witness of the prosecution transpires another aspect of the case viz. the time of occurrence of 6-30/6-40 p.m. of 30/31st December, the place of occurrence is jungle area, darkness at the time of incident, no source of light available at the place of occurrence. Apart from other facts he has given the full account regarding his removal from the place of occurrence to RHC Badeh upto CMC Hospital Larkana as well as source of transportation. He categorically disclosed that initially he was removed from the place of occurrence by a donkey cart, later on by a private taxi car and finally through ambulance he reached at CMC Hospital, Larkana. Such admission on the part of this prosecution witness who is star-witness of the prosecution reflects that he was well-conscious and in full senses, therefore, his belated statements recorded, under sections 161 and 164, Cr.P.C. create doubt their truthfulness. He specifically stated that after 4/5 days of the incident his 161, Cr.P.C. statement was recorded but during cross-examination a true picture came out from his mouth though he tried to conceal the same by stating that initially he was in serious condition, therefore, he told the Investigating Officer to record his statement later on. But in this respect the medical evidence does not corroborate his version and no such evidence has been brought on record to prove that after receiving injuries in the alleged occurrence he became unconscious or serious and was unable to give his statement. If, for the sake of arguments, P.W. Ali Muhammad was in serious condition why the Investigating Officer did not recorded his statement which may be treated as dying declaration in case of his death. In view of above facts and circumstances the evidence of this witness does not inspire confidence. Regarding the identity of present appellants at the time of occurrence particularly when he claims that the time of occurrence was 6-30/6-40 p.m. of 30/31st December and during those days normally sun sets between 5-30 p.m. to 5-45 p.m. in this locality. The statement under section 164, Cr.P.C. of this P.W. Ali Muhammad was recorded on 26-1-1996 i.e. after delay of 25/26 days for which prosecution could not come forward with any justification.

19. P.W. Lashkar Khan who is eye-witness of the occurrence per prosecution in his deposition narrated the facts of the occurrence but in different manner. He stated that at the time of occurrence he identified two persons namely Mazhar Magsi armed with kalashnikov and Mumtaz Abro with T.T. pistol while third unknown person was armed with T.T. pistol. They directly fired from their respective weapons, which hit Muhammad Paryal, Ali Muhammad and Jam. Muhammad Paryal died on the spot. During cross-examination he admitted that, "it is correct that the time of incident was dark hours of night. It is correct that there was jungle from both sides of abandoned minor. We brought the injured Jam and Ali Muhammad to RHC at about 9-00 p.m. After five minutes we left the hospital and went to Police Station, Badeh where Jam lodged his F.I.R." Such admission on the part of P.W. Lashkar suggests that the F.I.R. was lodged after 9-00 p.m. whereas time of report has been shown as 1930 hours. He further stated that his 161, Cr.P.C. statement was recorded at RHC Badeh. In respect of 164, Cr.P.C. statement, he stated as under:--

"The S.H.O. read over the contents of my 164, Cr.P.C. statement to me in the Court premises. My signature was obtained by my Advocate on my statement under section 164, Cr.P.C." He further stated that, "it is incorrect to suggest that after receiving the amount from Khair Muhammad, Muhammad Juman, Muhammad Malook and Ghulam Shabir, I had not involved the same accused persons in our statement before the police or in my 164, Cr.P.C. statement therefore, police let off them during investigation."

20. After perusal of deposition of P.W. Lashkar Khan it is quite clear that incident took place at the dark hours of night as well as the place of occurrence was surrounded by the jungle. The F.I.R. was lodged after 9-00 p.m. The 164, Cr.P.C. statement was .prepared by S.H.O. who read over the same to him and his signature was obtained by his Advocate. He did not disclose the name of appellant Shahzado though in 164, Cr.P.C. statement he had given his name. His deposition further reveals that P.W. Ali Muhammad was with complainant Jam, when he lodged the F.I.R. The statement under section 164, Cr.P.C. of this P.W. was recorded after delay of 25/26 days.

21. P.W. Ghulam Sarwar is Investigating Officer of this case. In this deposition, he stated that on 30-12-1995, he was posted as A.S.-I. at Police Station Badeh. On the same day at about 7-30 p.m. complainant Jam appeared at police station he also brought injured Ali Muhammad at police station and disclosed that he along with Muhammad Paryal. Ali Muhammad, Lashkar Khan and Anwar Ali while going to their village had been attacked by accused Khair Muhammad, Muhammad Juman, Muhammad Malook and Ghulam Shabir Chandio who were armed with kalashnikovs and guns. He, Ali Muhammad and Muhammad Paryal had received fire-arm injuries at their heads. As a result of injuries of Muhammad Paryal succumbed on the spot. Such F.I.R. was registered being F.I.R. No.75 of 1995. He prepared Mashirnama of injuries of complainant Muhammad Jam and Ali Muhammad at Police Station Badeh. Thereafter, he referred both the injured persons to hospital for treatment and certificate. He visited the place of Wardat recovered the blood and sealed the same of the deceased and injured Ali Muhammad. He recovered seven empties of 7.62 bore from the Wardat and two empties of .22 bore. He prepared such Mashirnama in presence of Mashirs. He recorded 161, Cr.P.C. recorded statements of P.Ws. Lashkar Khan and Anwar Ali on 31-12-1996(sic). He recorded statement of injured P.W. Ali Muhammad at hospital. On 14-1-1996 the complainant appeared at police station. He recorded his further statement at the police station disclosing that the real culprits were Shahzado; Ghulam Murtaza and Mazhar Ali and, disclosed that Ghulam Murtaza was armed with kalashnikov and the Other two were armed with T.T. pistols. They were the real culprits and they killed Muhammad Paryal by firing through weapons and had caused injuries to him. On 16-6-1996 he arrested accused from Police Station Taluka as he was already arrested by the same police. On 17-1-1996 he arrested accused Khair Muhammad, Muhammad Malook, Muhammad Juman and Ghulam Shabir (who are nominated accused in the F.I.R.). On 25-1-1996 he produced P.Ws. Ali Muhammad, Lashkar Khan and Anwar before the Court of Extra Joint Civil Judge and FCM, Larkana and got recorded their 164, Cr.P.C. statements on 27-1-1996. During interrogation accused Shahzado volunteered to produce the crime weapon, therefore, he along with subordinate staff left the police station to the pointed place where accused led them to a ditch near the place of Wardat and produced T.T. pistol of .22 bore bearing Sr. No.563-720 of Star Company. He recovered the pistol and sealed the same at the spot. On enquiry same was found unlicensed. He lodged a separate F.I.R. under section 13(d) of the Arms Ordinance as Crime No.7 of 1996 at police station against the accused. Therefore, on completion of investigation he challaned the accused Shahzado while accused Ghulam Murtaza and Mazhar could not be arrested and shown as absconders. Accused Khair Muhammad, Muhammad Juman and Ghulam Shabir were released by him under section 497, Cr.P.C. and he placed their names in Column No.2 of the challan sheet.

22. In cross-examination, he stated that Mashirs namely Imam Bux and Niaz Ali were accompanying the complainant when he came to police station for lodging the report but wherefrom they joined the complainant is a mystery as none from the eye-witnesses of the occurrence disclosed names of these two Mashirs. He further stated that they came on a donkey cart Injured Ali Muhammad was unconscious. None from the P.Ws. even injured P.W. Ali Muhammad has stated that he was unconscious: Even in his deposition, Ali Muhammad has given each and every detail regarding his shifting from the place of occurrence to RHC Badeh and CMC Hospital, Larkana and specifically disclosed that he was removed by a donkey cart, a taxi car and lastly by ambulance so the mere words of Investigating Officer that Ali Muhammad was unconscious do not find corroboration from any source. The Investigating Officer further stated that he visited the Wardat on the pointation of Anwar Ali whereas complainant stated that police recorded the report on his information and visited the place of incident. While denying the suggestion in respect of recovery, he stated that, "it is incorrect to suggest that I had foisted the above weapon upon the accused at the instance of complainant party. He further denied the suggestion in following words:

"It is incorrect to suggest that I had received illegal gratification from accused Khair Muhammad, Muhammad Malook, Muhammad Juman and Ghulam Shabir and released them and falsely implicated the present applicant persons in this case. It is incorrect that I am deposing falsely."

23. The prosecution also examined Dr. Abdul Ghaffar who conducted the post-mortem examination of deceased Muhammad Paryal in which he opined as under:-- '"from external as well as internal examination of the deceased I am of the opinion that the death of the deceased had occurred due to haemorrhage and shock. All the injuries were ante-mortem in nature which were caused by discharge from fire-arm which were sufficient to cause death in the ordinary course of life. The time between death and injuries was instantaneous. The probable time between death and post-mortem was four hours. Though the unnatural death of deceased Muhammad Paryal is admitted even by defence side and the doctor was not cross-examined in this respect."

24. The deposition of P.W. Akhtar Ali Dayo is very material for just conclusion whether at the time of treatment and examination P.W. Ali Muhammad was unconscious or not. In his deposition, he stated that on 30-12-1995 he was posted as Assistant Police Surgeon at Chandka Medical College Hospital, Larkana. On that date he received the injured namely Ali Muhammad son of Mehwal Chandio through police letter No.75/95 from Police station Badeh for examination, treatment and certificate. He examined the injured and found the following injuries on his person:---

"One lacerated punctured wound 6 c.m. x 4 c.m. cavity deep at left side abdomen, charring positive, intestine seen out, wound of entry."

The injury was declared as Jurh Jaifah and was caused by fire-arm. He issued such medical certificate and produced the same. Though the doctor was not cross-examined by the defence counsel but from his deposition it is not proved that injured Ali Muhammad was unconscious while he was referred to him.

25. So far evidence of other P.Ws. is concerned same is formal in nature which needs no discussion.

26. After going through the ocular evidence furnished by the complainant and eye-witnesses Anwar Ali, Lashkar Khan and Ali Muhammad we are of the opinion that the prosecution case is highly doubtful and it is not inspiring confidence. Complainant Muhammad Jam, who is one of the eye-witnesses and injured, had lodged the F.I.R in which he nominated Khair Muhammad, Muhammad Juman, Muhammad Malook and Ghulam Shabir as the real culprits with their specific roles but after 14/15 days he came forward with another version through a supplementary/further statement in which he implicated the appellants and acquitted accused Mazhar Ali. In order to justify his further statement he stated that after lodging the F.I.R. when he met the, P.Ws. they informed him that they have identified the accused at the spot; they were namely Shahzado, Mazhar Ali and Ghulam Murtaza. He further stated that at the time of incident he was not in proper senses and harassed; therefore he has given the names of Khair Muhammad and others exaggeratedly. Now he has reminded that the real culprits are Shahzado Jhatial, his friends Mazhar Ali Magsi and Ghulam Murtaza Abro. In his further statement he disclosed that Shahzado Jhatial is our neighbourer and is known to me personally.

27. From the conduct of the complainant no reliance can be placed on his subsequent version with which he came forward with unexplained delay of 14/15 days because delay in recording supplementary statement is an important factor which is likely to give rise to an inference that second version contained in it was introduced by the prosecution after due deliberation and if it is so, it will adversely affect the prosecution case. Though the complainant tried to justify second version that after the occurrence he was confused, harassed and not in senses but such fact is not on the record or proved medically through expert evidence so under such circumstances his supplementary version has lost its value. In this respect we are fortified by the principle laid down by their Lordships in the case of Khalid Javed and another v. The State 2003 SCMR 1419, while examining the supplementary statement of the complainant their Lordships came to the conclusion:---

"Admittedly the plea of the appellants of innocence coincides with the version of the prosecution contained in F.I.R. Exh.P.O. Therefore, it would be appropriate to note that F.I.R. under section 154, Cr.P.C. is normally considered as a corner stone of the prosecution case unless it is shown that on account of some mala fide intention a wrong version of the complainant was recorded by the investigating agency with a view to allow the real culprits to go scot free and to involve innocent person in the commission of the offence or, complainant in orders' to misguide the investigation lodged ' false report i.e. F.I.R. or Supplementary Statement with ulterior motive."

In the same case their Lordships held as under:---

"As far as supplementary statement of a complainant is concerned its value is not more than a statement under section 161, Cr.P.C. In this behalf reference may be made to the case of Falak Sher alias Sheru v. The State (1995 SCMR 1350). In this report appellant Falak Sher was not nominated in the F.I.R. However, subsequently complainant involved him by making supplementary statement deposing therein that the unidentified person was appellant who had earlier served with him for two years and was on visiting terms. Accordingly he was put to trial and was convicted by the trial Court and sentenced the accused to life imprisonment. In appeal the Federal Shariat Court maintained the conviction and sentence. As such appellant and two others filed petition before this Court. Leave was granted only to appellant Falak Sher whereas the same was refused to the co-accused. While evaluating the case of both the sides it has been laid down that F.I.R. is the document, which is entered into 154, Cr.P.C. book maintained at the police station at the complaint of the informant. It brings the law into motion. The police under section 156, Cr.P.C. start investigation of the case. Any statement or further statement of the first informant recorded during the investigation by police would neither be equated with First Information Report nor read as part of it. Consequently it was held that as the name of appellant does not appear in the F.I.R., resultantly he was acquitted of the charge."

28. Admittedly, the place of occurrence is surrounded by the jungle and per P.Ws. the incident took place on the dark hours of night as such no source of light has been given therefore, the mistaken identity cannot be ruled out. The evidence of the eye-witnesses further reveals that P.W. Ali Muhammad who is star-witness of the case was present with the complainant at the time of F.I.R. but he did not disclose the names of present appellants to the complainant. The statements of other witnesses have been recorded with delay, therefore, possibility of false implication of the appellants cannot be ruled out. In his deposition, the injured/P.W. Ali Muhammad did not state that after receiving the injuries he became unconscious. P.W. Dr. Akhtar Ali Dayo who examined the injuries of P.W. Ali Muhammad and issued medical certificate did not disclose that P.W. Ali Muhammad was unconscious. Therefore, the version of Investigating Officer that P.W. Ali Muhammad stated that his 161, Cr.P.C. statement was recorded after 4/5 days of the occurrence but very important admission of this P.W. which invited our attention is that he admitted that, "it is correct that complainant had given the names of real accused in F.I.R. who were Khair Muhammad, Muhammad Juman and Ghulam Shabir.

29. From the deposition of P.W. Anwar Ali it is proved, that all the P.Ws. went to police station with the complainant when he lodged F.I.R. His deposition further reveals that his 161, Cr.P.C. statement was recorded after 24/25 days of the incident. He even, did not state that accused present in the Court were same. The deposition of Lashkar Khan is inconsistent with the version of other P. Ws. regarding the time of registration of F.I.R., as he stated that after the incident he along with other P.Ws. brought the injured Jam and Ali Muhammad to RHC at 9-00 p.m. and after five minutes they left the hospital and went to Police Station Badeh where they lodged the F.I.R. So his admission confirms that all the eye-witnesses were present at police station when complainant lodged the report. His admission contradicts the time of F.I.R. The F.I.R. reveals that it was lodged at 1930 hours whereas this witness stated that they brought injured Jam and Ali Muhammad to RHC at about 9-00 p.m. and then they left the hospital and went to Police Station Badeh where Jam lodged his F.I.R. His deposition is not in line with his 164, Cr.P.C. statement as in his 161, Cr.P.C. statement he disclosed the names of appellants and co-accused Mazhar Ali but in his examination-in-chief, he disclosed that he had given names of only two persons viz. Mazhar Ali and Murtaza while he did not identify the third person. Apart from such conflicting statements, he admitted that the contents of 164, Cr.P.C. statement were read over to him by. S.H.O. and his signature was obtained on such statement by his Advocate. We cannot ignore such aspect of the case as there is inconsistency between his 164, Cr.P.C. statement and his deposition, he did not disclose the name of appellant Shahzado in his deposition. Though the Investigating Officer was not cross-examined by the defence counsel but from the perusal and appraisal of his evidence it is crystal clear that there are so many lacunas in the prosecution version. As far as the recovery of pistol from appellant Shahzado is concerned, same was not sent to Ballistic Expert for opinion. So the same recovery seems to be not helpful for the prosecution. The post-mortem report in respect of deceased Muhammad Paryal does not in any way corroborate the version of P.Ws. in respect of identity of the culprits. Such report verified the seat of injuries of the deceased but did not prove helpful for the prosecution regarding the participation, of the appellants in the commission of the offence. The prosecution also produced the report of Chemical Examiner in which it is opined that earth of above article No.1-S stained with human blood but it failed to bring on record evidence whether this article stained with blood which matches with the blood group of deceased Muhammad Paryal. On perusal of the record we find that the appellant Shahzado was known to the complainant personally and he is his neighbour and Ghulam Murtaza is friend of appellant Shahzado, which words came from the mouth of complainant. If they would have been the culprits, their names must have been given in the F.I.R. by the complainant. Their implication in the case at belated stage is mala fide and no reliance can be placed on the evidence of prosecution implicating them in the case. In subsequent/ supplementary statement of the first informant recorded after 14/15 days of the incident would neither be equated with first information report nor read as part of it. In this respect we are fortified by the dictum laid down by their Lordships in the case of Falak' Sher alias Sheru v. The State reported in 1995 SCMR 1350. In the above case supplementary, statement of complainant was recorded on the very same day but the honourable Supreme Court did not accept the same and acquitted the accused by extending benefit of doubt by observing that name of accused did not appear in the F.I.R., subsequent statement of complainant involving the accused in the case was false improvement which made the basis for other eye-witnesses as well as for false implication. In the case of Tariq Pervez v. The State reported in 1995 SCMR 1345 it was held by their Lordships that for giving benefit of doubt to an accused it is not necessary that their should be many circumstances creating doubt. If a single circumstance creates reasonable doubt in the prudent mind about the guilt of the accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right. In another case Ghulam Qadir and 2 others v. The State reported in 2008 SCMR 1221, it was held by their Lordships that for the purpose of benefit of doubt of an accused, more than one infirmity is not required, single infirmity creating reasonable doubt in the mind of reasonable and prudent person regarding the truth of charge, makes the whole case doubtful.

30. Admittedly, the names of the appellants do not find place in the F.I.R. but in subsequent/supplementary statement of complainant which was recorded after 14/15 days, they have been implicated and the evidence adduced at trial by the prosecution is inconsistent and not trustworthy as the same lacks confidence. There are so many infirmities and contradiction in the prosecution case. The burden lies upon the prosecution to prove its case beyond shadow of doubt and mere weakness of the defence does not shift the burden of prosecution.

For the foregoing reasons we allow these appeals and the conviction and sentences of the appellants are set aside and they are acquitted of the charge. They shall be released forthwith if not required in other case.

N.H.Q./G-41/K Appeals allowed.