2005 PLP 901 (YLR)

(7) One fire‑arm exit wound on anterior aspect at medial order of the left clavical size 1‑1/4" x 1‑1 3. (8) One fire‑arm exit wound on mid of the sternum 1 x 1/2 " (9) One fire‑arm exit wound on chest at the level but two inches lateral to the left nipple. (10) One fire‑arm exit wound left side chest anterior aspect anterior aspect at the level of 10th rib size 1/2 x 1/2" (11) One tire‑arm exit wound right side anterior aspect of the chest at level of 3rd rib size 1 x ." (12) One fire‑arm exit wound on the anterior aspect of the chest, right side at the level of 5th rib Size 2 x 1". (13) One fire‑arm exit wound on anterior aspect of the chest at the level of 10th rib. Size 1x1 1/2" right side. (14) Five fire‑arm exit wounds on anterior aspect of the abdomen. (15) Four fire-arm exit wounds on anterior aspect of left femour. Size 1/4 x 1/4". (16) Four fire‑arm exit wounds on posterior aspect of left femour, one is 1 x 1", second is 2 x 3", third 1 x 1‑1/2", fourth is 1/2 x 2". (17) Five fire‑arm entry wounds 1/4 x 1/4" each one on anterior aspect of right femour. (18) Five fire‑arm exist wound on posterior medial aspect right femour, one is 3 x 1", second 3 x 5", third 1 x 1/2", fourth is 1 x 1/2" and fifth is 1 x 1‑1/2". Cranium and spinal cords: Scalp and skull injured. Thorax (all organs injured). Abdomen: Except pancreas, spleen kidneys, bladder and organs of veneration, all other organs' injured. Muscles injured, right and left femour, lower jaw, teeth and left clavicle are fractured. In the opinion of doctor, the deceased died due to fire‑arm injuries to the vital organ, like hear, Aorta, liver and trachea etc. which resulted in profuse and speedy blood loss external and internal, which led to death. Probable time between injuries death was found instantaneous between death and post-mortem, to 4 hours.

7. Accused in his statement recorded under section 342, Cr.P.C. repudiated the prosecution allegations and claimed to have been falsely charged for ulterior motives. He stated that at the relevant time he was not present in the‑village and on coming to know of the charge, he voluntarily appeared, before the police. He neither appeared at his own witness on Oath as required under section 340(2), Cr.P.C. nor produced defence evidence.

8. The learned trial Judge on overall assessment of the evidence concluded that the prosecution was successful in proving the guilt of the appellant beyond reasonable doubt. In reaching such conclusion, the learned trial Court accepted evidence furnished by Mst. Rukhsana complainant. The learned trial Court found the corroboration to the evidence of complainant through medical evidence, recoveries from the spot motive and abscondence of the appellant. Resultantly, he convicted and sentenced the appellant as mentioned herein above.

9. Representing the appellant, Mr. Sultan Shaheryar Khan Marwat, Advocate strenuously contended that the prosecution as per its own evidence on record has not been able to bring home to guilt to the appellant; that the learned trial Court mis -appreciated and misdirected the evidence while convicting, and sentencing him by way of the impugned judgment; that the eye‑witness account of the occurrence furnished by the complainant runs contrary to the medical evidence; that there was no motive with appellant to commit the crime in question; that recovery of empties can hardly be treated as a corroborative piece of evidence; that this was a blind murder; that the presence of Mst. Rukhsana was procured by the police subsequently in order to fabricate evidence against the appellant; that the deceased had other enemies in the area and the possibility could not be ruled out that he was killed by his other enemies and that the abscondence is meaningless and does not prove the complicity of the appellant in the commission of crime. To augment to contentions, reliance was placed on 1995 SCMR 1730, 1998 SCMR 1513, 1999 SCMR 1220, 1992 PCr.LJ 158 FSC and 2002 PCr. LJ 21.

10. Contrarily, Mr. Ehsan‑ul‑Haq Malik, Advocate appearing on behalf of the State supported the impugned judgment whole heartedly and submitted that evidence on record is sufficient to connect the appellant with the commission of crime; that by no stretch of reasoning complainant can be branded chance witness; that the appellant has not been able to suggest or prove any kind of hostility of complainant towards the appellant which may be said to have prompted her to implicate the appellant falsely; that there was a definite motive leading to the incident; that on no premises, it can be urged by the appellant that the medical evidence is in conflict with the ocular evidence and that noticeable abscondence of the appellant tends to establish that he was guilty and had a hand in the murder of Sher Mast Khan deceased. In this regard, reliance was placed on 2000 SCMR 1758, 2004 PLD SC 371, 2004 PLD Peshawar 143, 2004 PCr.LJ 143 and 2002 PCr.LJ Peshawar 64.

11. We have heard the arguments of learned counsel for the parties at some length. We have also gone through the record of the case with their assistance.

12. The prosecution case mainly rests upon the sole testimony of Mst. Rukhsana complainant, widow of Sher Mast deceased. The corroboration is sought from medical evidence, motive, recoveries from the spot and abscondence of the appellant.

13. After going through the testimony of the complainant, we find that the statement of this witness suffers from material infirmities inasmuch as she has tried to improve her case on various material aspects. This inherent weakness in her evidence negates her presence at the time of occurrence. It is not denied that one single reason would be, sufficient to discard the statement of a witness if it creates reasonable doubt in a reasonable mind regarding his presence at the spot. Since the very purpose of the eye‑witness at the scene of occurrence is doubtful, therefore, the evidence of recovery, motive, absconsion or the doctor deposing the injury suffered by the deceased, even if proved, cannot in any way advance the case of the prosecution. It would be totally unsafe to rely on the testimony of the sole eye‑witness who admittedly is closely related to the deceased being his wife and whose conduct throughout the alleged transaction had been quite doubtful. unnatural and improbable. It is not denied that the statement of a prosecution Fitness must be in consonance with the probabilities fitting the circumstances at the case and must also inspire confidence in the mind of a reasonable and prudent man. If these elements are present, then the statement of the worst enemy of the accused may be accepted and relied upon without corroboration, but if these elements are missing, then the statement of a pious man may be rejected without second thought as held in Haroon alias Harooni v. The State and others (1995 SCMR 1627). No doubt it is true that the solitary statement of a witness is sufficient to base conviction of an accused person provided it rings true and comes from an unimpeachable source, However, the solitary statement of related chance witness is seldom relied upon in a case involving capital charge unless such witness inspires confidence by furnishing plausible and convincing explanation for his presence at a place where he is ordinarily not expected to be present at a given time. It is well‑established principle of law that, in a case involving capital punishment, the Court will not base conviction on the sole testimony of a witness, whose credibility is not free from doubts, therefore, for safe dispensation of justice in criminal case, the Courts look for some independent corroboration, which is lacking in the present case.

14. It is established from the record that the present episode is an unseen occurrence. The complainant is a chance witness and she has failed to account for her presence at the spot. The employment of word `Toppak' in the F.I.R. clearly suggests that the complainant was not present on the spot at the relevant time and was unaware as to what kind of arms were used in the commission of offence. The spot of occurrence is a thickly‑populated area with shops all around and it was peak time of business, yet no independent witness has been either cited or has come forward to support the case of the prosecution. It may be observed that the accused are alleged to have made 90 fire shots at the deceased who was followed by the complainant at a distance of 9/10 paces yet she was not hit and escaped unhurt. The complainant is also contradicted by the factum of time of occurrence which clearly suggests that she was not at all accompanying the deceased at the time of occurrence and the victim was all alone when he was done to death. The complainant is further contradicted by the Investigating. Officer with regard to the `burqa'. According to the complainant, at the relevant time, she was clad in `Burqa' whereas the Investigating Officer stated that at the time of report on the spot, the complainant was not wearing `Burqa'. The complainant is further contradicted with regard to the number of fire‑shots made by the accused resulting in the murder of the deceased. According to prosecution, 90 fire shots were made by the accused but strangely enough, four empties of 7.62 bore were recovered from the spot which were also not sent to Fire‑arms Expert for verification as to whether those were fired from one weapon or more. It has come on record that the deceased had other enmities in the village and it is possible that someone else had done away with the deceased.

15. So far is the medical evidence is concerned; it establishes the fact that Sher Mast was done to unnatural death at the relevant date and time, but who was the assailant cannot be proved through such evidence.

16. So far as the absconsion is concerned, disappearance of an accused person should have ordinarily offered useful corroboration to the prosecution case. But this is so only in a situation where the prosecution case is believable to some extent and requires some corroboration for proof of the same which is not the situation in the present case. Needless to emphasise that the abscondence at the most can be taken as corroborative of the charge and not the evidence of the charge and in absence of any other corroborative evidence, this evidence even if found convincing, would not be sufficient by itself to warrant the conviction of the accused person on a charge of murder as held in Aminullah v. The State (PLD 1976 SC 632).

17. After having carefully gone through the whole evidence, we are confident that the prosecution has not been able to prove the case against the appellant beyond reasonable shadow of doubt. The evidence available on record is in no way sufficient to lead to a conclusion that the appellant be convicted of the offence alleged against him. It appears that surmises and conjectures were the main element and force behind prosecution of the appellant in this case. Surmises and conjectures howsoever well placed, cannot take the place of proof.

19. As a sequel to above discussion, we accept this appeal, set aside the impugned conviction and sentence awarded to the appellant and acquit him of the charge. The appellant shall be released forthwith if not required in any other case.

20. We had, by our short order, dated 10‑12‑2004, allowed the appeal and acquitted the appellant for reasons to be recorded later. Above are the detailed reasons. H. B. T./310/P Appeal accepted.