P L D 2006 Peshawar 132 (PLP)

IJAZ-UL-HASSAN KHAN, J.

On conclusion of trial in case F. I . R. No. 527 dated 1-12-2002 under sections 302/324/34, P.P.C., registered at Police Station Lahor, vide judgment dated 8-9-2004, rendered by Mr. Abdul Ghafoor Qureshi, learned Additional Sessions Judge, Lahor, District Swabi, appellant Saleh Muhammad was convicted under section 302, P.P.C. for committing 'Qatl-i-Amd' of his co-villager, Muhammad Fazil by firing burst of Klashnikov and sentenced to suffer imprisonment for life as Ta'zir under section 302(b), P.P.C. He was also directed to pay a sum of Rs.1,00,000 as compensation to legal heirs of the deceased under section 544-A, Cr.P.C. which if not paid, was recoverable as arrears of land revenue. Benefit under section 382-B, Cr.P.C. was extended to him. However, through the same judgment, Muhammad Shirin and Misal Khan co-accused, were extended the benefit of doubt and so acquitted for prosecution's failure to prove the charge against them beyond any shadow of reasonable doubt.

2. Saleh Muhammad appellant has called in question his conviction and sentence through Criminal Appeal No.788/2004, while Said-ul-Ibrar appellant has filed Criminal Appeal No.782/2004, to challenge acquittal of Muhammad Shirin and Misal Khan and Criminal Revision No.200 of 2004,seeking enhancement of sentence awarded to Saleh Muhammad. As all these matters have arisen out of one case, hence are being disposed of by this single judgment.

3. The crime in question is alleged to have taken place on 1-12-2002, at 9-20 a.m., at 'maqbara deli' Haryan, in the precincts of Police Station, Lahor and the matter was reported to the police, same day at 10-30 a.m. by Muhammad Fazal deceased, then injured, at D.H.Q. Hospital, Swabi. The report (Exh.PW.3/3) was recorded by A.S.I. Faizul Haq (P.W.14), in the shape of 'murasila'. The 'murasila' was dispatched to police station, where it was incorporated into F.I.R. by S.I. Sajid Khan (P.W.8). 4.? Briefly the facts, relevant for the disposal of these matters are, that on the day, time and the venue of occurrence, mentioned above, Muhammad Fazil deceased was engaged in white washing grave and his brothers Nazif Khan and Saidul Ibrar, P.Ws. were busy in cleaning the graveyard, when in the meanwhile, their co-villagers Muhammad Sherin, Misal Khan and Saleh Muhammad accused, duly armed, appeared at the spot. Saleh Muhammad and Muhammad Sherin started firing at the complainant party with Klashnikovs, as a result of which Muhammad Fazil sustained injuries. However, Nazif Khan and Saidul Ibrar P.Ws. escaped unhurt. After accomplishing the mission, accused bolted away from the spot. A dispute over landed property was stated to be the motive behind the occurrence. 5.? A.S.-I. Bakht Bahader Khan (P.W.13) took over the task of investigation. He proceeded to the spot and prepared site plan Exh.PB, at the instance of the eye-witnesses. During the spot inspection, he recovered six empties of 7.62 bore Exh. P 1 and sealed the same into a parcel, vide memo. Exh.PW.9/1. He sent the empties to Fire-arms Expert, Peshawar to ascertain as to whether those had been fired from one weapon or more. After post-mortem examination, blood stained clothes of the deceased viz. 'Qameez' P2 and 'Shalwar' P3, brought by FC Muhammad Javed (P.W.2), from hospital were taken into possession by the Investigating Officer and sealed into parcel vide memo. Exh.PW.9/2. He sent the clothes to F.S.L. Peshawar and placed on record report Exh.PK of the Expert. As the accused were not available in the village, he obtained warrants under section 204, Cr.P.C. and proclamation under section 87 thereof, against the accused and entrusted the same to D.F.C. Rasheed Riaz (P.W.6) for execution. Accused Saleh Muhammad and Misal Khan were arrested on 20-5-2003, by S.I. Syed Zahid Shah (P.W.4). After finalization of investigation, S.I. Khan Zeb (P. W.1), submitted challan against the accused in Court to face trial.

6. At the commencement of trial, copies of documents under section 265-C, Cr.P.C. were supplied to the appellant and his co-accused. Charge was framed, which was denied by them and prosecution in order to prove its case produced as many as 14 witnesses. Muhammad Nazif Khan (P. W.11) and Saidul Ibrar (P. W.12), brothers of Muhammad Fazil deceased unfolded ocular account of the occurrence, reiterated the contents of the F.I.R. and implicated the appellant and co-accused for murder of deceased. They also deposed about. the motive leading to the turmoil. 7.? Injured was provided first aid at D.H.Q. Hospital, Swabi. In view of the serious condition of injured, he was referred to Lady Reading Hospital, Peshawar. The injured unfortunately could not survive and died the same day. Dr. Naveed Alain (P.W.5.) at 9-30 P.M. conducted post-mortem examination of the deceased and noted the following:-- (1) Fire-arm entry wound 0.5 x 0.5 c.m. on left front abdomen 3 c.m. from middline and 3 c.m.below the costal margin. (2) Fire-arm exit wound 1.5 x 1.5 c.m. on lower back midline 7 c.m. above the natal cleft. In opinion of the doctor, the deceased died due to injury caused to the spinal cord, pancreas, intestines and major blood vessel due to fire-arm.

8. After close of the prosecution evidence, the appellant and his co-, accused got recorded their statements under section

342. Cr.P.C. in which they professed their innocence and claimed to have been falsely implicated in the case. They neither appeared as their own witnesses on oath as required under section 340(2), Cr.P.C. nor produced any evidence in defence.

9. The trial court after hearing the parties came to the conclusion that the prosecution stood succeeded in proving the charge against appellant and convicted and sentenced him as mentioned above, while not against the acquitted accused. It gave them the benefit of doubt and so acquitted.

10. Mr. Abdul Samad Khan, Advocate, for the appellant Saleh Muhammad, in support of the appeal addressed arguments in detail and argued that judgment of the trial court to the extent of' conviction of appellant is manifestly against law and facts, hence conviction of the appellant for the charge of murder is unsustainable. The learned counsel reiterated that trial court has un-necessarily relied upon the discrepant, tainted and untrustworthy evidence of prosecution. The main stress of the argument by the learned counsel was that P.Ws Nazif Khan and Saidul Ibrar were not present at the time and place of the incident, therefore, their evidence cannot be relied upon and they are set up witnesses. Concluding the arguments, learned counsel maintained that the same evidence has been disbelieved as against co-accused Muhammad Sherin and Misal Khan, facing similar charge, whereas appellant Saleh Muhammad has been made liable to conviction on the same material, which has been discarded in the same judgment while discussing case of co-accused.???? .

11. Mr. Wasim Tariq, Advocate appearing on behalf of the State, assisted by Khawaja Muhammad Khan Gara, Advocate for Saidul Ibrar appellant in Criminal Appeal No.782/2004 and petitioner in Criminal Revision No.200/2004, while refuting the arguments of learned appellant's counsel, submitted that respondent Muhammad Sherin along with his co-accused Misal Khan has been charged in dying declaration, supported by ocular and circumstantial evidence; that the incident is a broad day one and the identity of the appellant and co-accused has been fully established; that the prosecution has also proved motive set up in the F.I.R.; that no reason is forthcoming as to why the appellant and co-accused should have been falsely and maliciously implicated by the deceased instead of real culprits; that medical evidence is in complete harmony with the ocular account and that respondent and co-accused had absconded after the occurrence, for which no legitimate explanation has been offered. Lastly, it was submitted that learned trial Judge had no justification to take lenient view of the matter and imposed life imprisonment on appellant Saleh Muhammad, instead of awarding him normal penalty of death.

12. We have given due consideration to the arguments of the parties' counsel, State counsel and perused the evidence very minutely with their assistance.

13. It is known and settled principle of law that prosecution primarily is bound to establish guilt against the accused without shadow of reasonable doubt by producing trustworthy, convincing and coherent evidence, enabling the court to draw conclusion whether the prosecution has succeeded in establishing accusation against the accused or otherwise and if it comes to the conclusion that the charges so imputed against the accused have not been proved beyond reasonable doubt, then the accused becomes entitled for his release on getting benefit of doubt in the prosecution case. There is no cavil with the proposition that the initial burden of proof continues to be on the prosecution and it is only when it has rendered a reasonable proof before the trial court qua the guilt of an accused that the onus shifts on the accused to prove his innocence.

14. There is no gain in saying that the evidence furnished by interested witness ordinarily cannot be discarded merely for the reason that they had relationship with the victim/deceased. However, for safe administration of justice, it becomes the duty of the court to look forward for corroboration of such evidence from independent source with the view to explore truth for the purpose of reaching at a just conclusion. Applying the test laid down by the superior courts, we have considered the statements of Nazif Khan and Saidul Ibrar P.Ws., carefully along with other evidence available on record but we failed to get even an iota of independent evidence to support their version. The main attack on the ocular testimony from the side of the defence is that? P.Ws. Muhammad Nazif and Saidul Ibrar were not present at the time and place of the incident, therefore, their evidence cannot be relied upon and they are set up witnesses. Mere relationship or close association of prosecution witnesses with deceased in absence of established hostility. animosity or any other motive to depose falsely would not be sufficient for him to be interested witness and his testimony would not be discarded on such ground but in the instant case, we find that eye-witnesses have not been able to prove their presence at the spot at the relevant time. The scrutiny of these witnesses reveals that the ocular testimony is highly doubtful. Therefore, it is very unsafe to rely upon such type of evidence. The argument of the defence counsel that the witnesses were not present on the date, time and venue of occurrence is not unfounded. There is no evidence to provide independent corroboration to their testimony. In the absence thereof, it is not safe to rely upon the oral statements of eye-witnesses alone to maintain the conviction of the appellant in a case of capital charge. The evidence furnished by the eye-witnesses is to be judged as a whole and not in isolation. The statements suffer from serious infirmities and were not reliable. It has come in the cross-examination of Nazif Khan (P.W.11), that after the occurrence some people from the nearby houses, including Muhammaddullah, Zubair Ali and Sher Bacha were attracted to the spot, who were informed about the incident. Saidul Ibrar (P.W.12) has also stated so. It is significant to note that no independent and disinterested witness from the locality has been produced to lend corroboration to the prosecution version. It is a case of murder, in which death or life imprisonment can be given. In such like cases, the prosecution is always asked for corroboration through some independent sources, which is totally lacking in the instant case except the statements of two eye witnesses, who are admittedly closely related to the deceased.

15. It is settled principle of law that if a best piece of evidence available with a party is withheld, then it is presumed that the said party has some sinister motive behind, for withholding the same piece of evidence. It needs no reiteration that for safe administration of criminal justice, an accused has only to show a dent having created in the case of the prosecution and that he is entitled to benefit of even a single doubt founding the evidence of the prosecution and that he has not to show that its case suffers from more than one doubt. It is an iron clad principle of criminal justice that an accused cannot be held guilty for a crime on the basis of probabilities and high presumptions and than no one shall be construed into a crime without legal proof. No doubt, one person has lost his life but the court has to see whether the prosecution has been able to prove the case against a person, who has been charged to face the trial on a capital charge, which is missing in this case.

16. It is settled law that if the eye-witnesses are disbelieved against some accused persons, who had been attributed similar role qua acquitted co-accused, then such eye-witnesses cannot be believed against the other co-accused persons unless they received independent corroboration in that regard.

17. Both the eye-witnesses produced in this case by the prosecution, namely, Nazif Khan and Saidul Ibrar are real brothers of Muhammad Fazil deceased. It is settled law that if the eye-witnesses are disbelieved against some accused persons, who had been attributed specific injury, then such eye-witnesses cannot be believed against the other co-accused persons unless they receive independent corroboration in that regard. In the instant case, no independent corroboration is forthcoming.

18. As far as the medical evidence is concerned, it supports the prosecution to the extent that the deceased lost his life due to fire-arm injury and not beyond. The medical evidence being in nature of confirmatory evidence, cannot be considered corroborative evidence. There is no other incriminating evidence on record sufficient to support the prosecution story.

19. It may be noticed here that during the spot inspection, six empties of 7.62 bore were taken into possession by the Investigating Officer and sent to the Fire-arms Expert, Peshawar to ascertain whether the same had been fired from one weapon or more. The report of the F Fire-arms Expert has not been placed on the record. No explanation is forthcoming for this omission on the part of the Investigating Officer.

20. With regard to abscondence, suffice it to say that where otherwise evidence on the record is not credible and worth reliance, the mere fact that an accused remained absconder cannot remedy the defects and infirmities in the prosecution case. 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. The alleged abscondence of the said appellant could not be used as piece of confirmation to the ocular testimony regarding his absconsion in the matter. Akhtar Jan and another v. The State and another (2005 PCr.LJ 1459 Peshawar).

21. Having considered the matter from all angles, we are of the opinion that prosecution has not been able to prove its case against. Saleh Muhammad appellant as well through any cogent piece of evidence. We are convinced that the eye-witnesses namely, Nazif Khan and Saidul Ibrar, P.Ws. were not present on the spot and had not seen the occurrence. It seems to be the job of single man. The prosecution has thrown wide net to implicate appellant and his close relations. We also feel that learned trial Judge had no justification to rely on the so-called dying declaration of the deceased and make the same basis of the impugned judgment without looking for independent corroboration, which is missing in the instant case.

22. The upshot of the above discussion is that the prosecution having ?failed to prove its case beyond doubt against appellant Saleh Muhammad, the impugned judgment is not found to be sustainable in law. Consequently, Criminal Appeal No.788/2004, is accepted, conviction and sentence of' the appellant is set aside and he is acquitted of the charge, by extending him the benefit of doubt. He shall be released from jail forthwith, if not required in any other case. As the appellant has been acquitted of the charge, therefore, Criminal Appeal No.782/2004, against acquittal of Muhammad Sherin and Misal Khan, co-accused and Criminal Revision No.200/2004, for enhancement of sentence of Saleh Muhammad appellant, are hereby dismissed. We, had by our short order dated 21-11-2005, accepted Criminal Appeal No.788/2004 and dismissed Criminal Appeal No.782/2004 and Criminal Revision No.200/2004, for reasons to be recorded later. Above are the detailed reasons. H.B.T./78/P???????????????????????????????????????????????????????????????????????????????????????? Appeal allowed.