2010 PLP 374 (SCMR)

RAHMAT HUSSAIN JAFFERI, J.

On 16-5-2000, the appellant Muhammad Saleem was convicted for an offence punishable under section 302(b), P.P.C. and sentenced to suffer imprisonment for life with benefit of section 382-B, Cr.P.C. whereas co-accused Muhammad Akram was acquitted from the charge of murder by the learned Sessions judge, Khuzdar on the ground that the P: Ws. did not involve him in the commission of the crime. On appeal, a learned Division Bench of the High Court of Balochistan, Quetta maintained the conviction and sentence passed by the trial Court under the impugned judgment dated 16-4-2003. The appellant preferred Jail, Petition bearing No.103 of 2004 before this Court in which leave was granted to re-appraise the evidence, vide order dated 17-4-2006. Hence this appeal.

2. Brief facts giving rise to the present appeal as disclosed in F.I.R. are that the complainant Muhammad Aslam along with his parents was residing in the house. On 19-3-1998 they were sleeping in a room when at 11-55 p.m. he woke up and saw the appellant Muhammad Saleem and acquitted-accused Muhammad Akram present in the house. They entered the house after breaking its door. The acquitted accused caught hold of Rais Maula Bakhsh, deceased whereas the appellant Muhammad Saleem was causing injuries with some hard substance on his head. He further disclosed that the accused demanded Rs.50,000 from his deceased father and thereafter ran away. The complainant took the injured to the Hospital but he died on the way. The police investigated the case, collected the ocular evidence of complainant Muhammad Aslam (P.W.1), P.W.2 Mst. Dur Khatoon, wife of the deceased, and P.W.3 Mst. Zar Bibi, mother of the deceased. After arresting the accused, they were challaned in the Court, where they were tried.

3. Learned counsel for the appellant has argued that the incident took place at the odd hours of the night; that there was no source of light and that the incident was un-witnessed as the ocular testimony is in conflict with the medical evidence. Conversely, learned counsel for the State, has supported the impugned judgment by submitting that the appellant was grandson of Mst. Zar Bibi (mother of the deceased); that the parties were closely related to each other, therefore, there is no question of mistaken identity. He has .further argued that the P.Ws. have no reason to falsely implicate their kith and kin.

4. Having heard the arguments of learned counsel for the appellant as also for the State and having gone through the record with their assistance, we find that the incident took place during night time at 11-55 p.m. and there was no source of light at that time. None of the P.Ws. alleged that any lantern was burning or there was electricity in the village in the year, 1998. This fact has put us on guard to examine the oral testimony very carefully. We find that the complainant in the F.I.R. involved co-accused Muhammad Akram, since acquitted, but during trial he was exonerated as no evidence was produced despite the fact that specific allegations of catching hold of the deceased were levelled against him. The prosecution, in order to overcome the lacuna of absence of light, tried to establish that the witnesses had a very close look of the appellant by stating that there was knock at the door of the house, which was responded by P.W.3 Mst. Zar Bibi where she found the appellant alone present with a stone in his hand. This fact was never alleged in the F.I.R. On the contrary the case build up at the initial stage was that the appellant and acquitted co-accused had entered the house by breaking its door. This improvement made by the prosecution witnesses in the case was to strengthen the question of identity of culprits and fitting in the circumstances of the case. The learned trial Court examined this aspect of the case and rightly discarded the said portion of the statement. It is also of worth to note that in the F.I.R. the presence of P.Ws.2 and 3 Mst. Dur Khatoon and Mst. Zar Bibi was not shown at the time of incident. No doubt P.W.2 was wife of the deceased, whose presence cannot be doubted whereas, regarding presence of P.W.3 Mst. Dur Khatoon, it has not been mentioned in the F.I.R. that she was residing in the house. Be that as it may, the fact remains that both the P.Ws.2 and 3 specifically alleged that the appellant caused 6/7 blows on the head of the deceased. This fact has neither been supported nor corroborated by the medical evidence as according to the medical report the deceased had only one injury on his head which was caused with blunt weapon. Thus, there is a conflict between the medical and oral evidence.

5. The argument of the learned State counsel that P.W.3 Mst. Zar Bibi, grandmother of the appellant, had no reason to falsely implicate the accused does not carry much substance, as it is not the question of relationship but veracity of witness is to be seen so as to arrive at a conclusion whether the witness is truthful or otherwise. General rule is that statement of a witness must be in consonance with the probabilities fitting in the circumstances of the case and also inspires confidence in the mind of a reasonable and prudent person. If these elements are present, then the statement of a worst enemy of the accused can be accepted and relied upon without corroboration but if these elements are missing then the statement of a pious man can be rejected without second thought. Reference is invited to Haroon v. State 1995 SCMR 1627. The acid test of veracity of a witness is the inherent merit of his town statement. It is not necessary that an impartial and independent witness, who is neither related to the complainant nor inimical towards the accused would stamp his testimony necessarily to be true. The statement itself has to be scrutinized thoroughly and it is to be seen as to whether in the circumstances of the case the statement is reasonable, probable or plausible and could be relied 'upon. The principle that a disinterested witness is always to be relied upon even if his statement is unreasonable, improbable and not plausible or not fitting in the circumstances of the case then it would lead to a very dangerous consequence. Reference is invited to Muhammad Rafique v. State 1977 SCMR 457 and Haroon v. State 1995 SCMR 1627.

6. Applying the test to the prosecution witnesses, we find that their statements do not come within the ambit of above' rule of acceptance of evidence, therefore, no implicit reliance can be placed on such type of evidence without any corroboration which is lacking in the present case.

7. So far as the question of limitation is concerned, since the appeal arose out of .a jail petition and the appellant is a convict on the charge of murder, we therefore in the interest of justice are inclined to condone delay of 287 days caused in filing the petition.

8. In the light of what has been discussed above, the prosecution has failed to prove its case against the appellant beyond any reasonable doubt. Therefore, the appellant is entitled to the benefit of doubt which is accordingly given to him. Consequently, the conviction and sentence awarded to the appellant are set aside. He shall be released forthwith if not required in any other custody case. The appeal is accordingly allowed. N.H.Q./M-134/SC Appeal accepted.