2013 PLP 2772 (YLR)

ASSADULLAH KHAN CHAMKANI, J.

Impugned herein is the judgment dated 8-7-2011 passed by learned Additional Sessions Judge/Izafi Zilla Qazi, Malakand at Dargai, whereby Jehan Bahadar, the appellant, involved in case F.I.R. No. 142 dated 17-6-2000 registered at Police Station, Dargai, was convicted and sentenced under sections 302(b)/34, P.P.C. to life imprisonment and further directed to pay fine of Rs.2,00,000 as compensation to the legal heirs of deceased under section 544-A, Cr.P.C. or in default thereof to suffer six months' S.I., however, benefit of section 382-B, Cr.P.C. was extended to the appellant.

2. Facts of the case, in brief, are that Ajeeb Gul lodged a report that on 17-6-2000 his brother Raham Bakht took water cooler to the house of Nawab Khan and was on the way back to his house, when reached to the place of occurrence at 10-30 a.m., in the meanwhile, Jehan Behadar and Arab Khan started indiscriminate firing at him as a result of which his brother Raham Bakht was hit and died on the spot. Motive for the occurrence was that two days prior accused Jehan Bahadar had a quarrel with his brother-in-law Ghani ur Rehman. The occurrence was stated to be witnessed by Ghani ur Rehman, Faizullah and Usman Ghani. The report of the complainant was reduced into writing in shape of Murasilla Exh.PA/1 and sent it to Police Station for registration of the case. He prepared the injury sheet and inquest report of the deceased and also took into possession blood-stained garments of the deceased vide memo Exh.P.W.8/1. He prepared the site plan Exh.PB at the instance of Usman Ghani. During spot inspection he took into possession fourteen empties of 7.62 bore and blood-stained pebbles from the spot, vide memo Exh.P.W.6/1. He also recorded the statements of the P.Ws. Since the accused were avoiding their lawful arrest, therefore, process under sections 204 and 87 Cr.P.C. were also issued against them. After completion of investigation complete challan under section 512 Cr.P.C. was submitted against the accused.

3. On 31-7-2010, the convict-appellant was arrested and supplementary challan against him was submitted before the Court. Learned trial Court after supplying copies of relevant documents within the meaning of section 265-C Cr.P.C., charge-sheeted him to which he pleaded not guilty and opted to face the trial. After commencement of trial, prosecution produced twelve P.Ws. in support of its case. After the close of prosecution evidence, the accused was examined under section 342, Cr.P.C. wherein he claimed innocence and false implication; however, he was neither ready to be examined on oath under section 340(2) Cr.P.C. nor wished to produce defence. Learned trial Court after hearing the parties, convicted and sentenced the accused-appellant Jehan Bahadar, vide the impugned judgment, hence, the present appeal against his conviction while complainant Ajeeb Gul filed Criminal Revision No. 13 of year 2011 for enhancement of sentence. Since the criminal appeal and revision have been filed against one and same judgment, therefore, we intend to dispose of the same through this single judgment.

4. Learned counsel for the appellant argued that there is one and half hours delay in lodging of the report and that too, when the report had been recorded on the spot where the local police had reached on its own after receiving information about the occurrence for an undisclosed source, therefore, question of consultation and deliberation could not be ruled out. He further argued that the prosecution has miserably failed to bring home the guilt against the convict by producing trustworthy and convincing evidence. He further argued that the eye account furnished by Complainant P.W.5 and Usman Ghani P.W.6 are contradictory to each other, therefore, the same could not be believed. He argued that it is unwitnessed occurrence and P.W.5 and P.W.5 claimed to be the eye-witnesses of the occurrence were procured and they have given evidence in favour of the prosecution because of their close relationship with the deceased. Learned counsel further argued that fourteen empties of 7.62 bore were shown to have been recovered but the same have been planted against the appellant-convict just to strengthen the prosecution case. He contended that motive advanced in the F.I.R. has not been proved. He argued that the trial Court has not scrutinized the evidence of prosecution witnesses in accordance with recognized principles of appreciation of evidence available on record rather based its judgment on the basis of conjectures and surmises, therefore, the impugned judgment of conviction is against the law and without any cogent evidence, as such, the same is liable to be set aside and the accused be acquitted of the charge.

5. On the other hand learned D.A.-G. appearing on behalf of the State and counsel for the complainant argued that the occurrence took place in broadday-light and the convict-appellant is charged by name in the F.I.R., which is supported by the statements of complainant P.W.5 and eye-witness, Usman Ghani, P.W.6, medical evidence, recoveries of crime empties, blood-stained pebbles from the spot and blood-stained garments. They argued that the prosecution proved its case against the convict-appellant beyond any shadow of doubt and further submitted that, though, there are minor discrepancies in the evidence of prosecution but the same are not fatal to the prosecution case and supported the conviction and sentence awarded to the accused-appellant. However, they criticized the judgment of trial Court to the extent of not awarding capital punishment.

6. We have considered the arguments of learned counsel for parties and have gone through record.

7. The record reveals that the occurrence took place on 17-6-2000 at 10-30 a.m while the report had been lodged on the same day at 12-00 hours, i.e., after one and half hours of the occurrence. The record further reveals that police had reached the house of complainant of its own after receiving information about the incident but the source of information has also not been disclosed. This delay has not been explained by the prosecution in F.I.R, therefore, possibility cannot be ruled out that this was an unseen occurrence and the prosecution was busy in consultation and deliberation regarding the culprits.

8. The ocular account had been furnished by complainant Ajeeb Gul (P.W.5) and Usman Ghani (P.W.6). Complainant is the brother of deceased. In his first report he stated that the deceased had taken water cooler to the house of Nawab and he was coming back, in the meantime, he was intercepted by the two accused and killed him by firing at him. He disclosed that Ghani ur Rehman and Faizullah had witnessed the occurrence. However, when he appeared before the court as P.W.5, he claimed himself to be the eye-witness of the occurrence by making improvement in his statement. If he is true in his statement, then it is not understandable that why his name is not mentioned as an eye-witness of the occurrence and further why his name and place of presence as an eye-witness is omitted in the site plan prepared on the day of occurrence. Amir Bad Shah, the Investigating Officer (P.W.8) in the first line of his cross-examination admitted that the name of Ajeeb Gul has not been mentioned in the Murasilla, statements of eye-witnesses and site plan as an eye-witness. He further admitted that Ajeeb Gul was missing in the crowed, therefore, he prepared the site plan at the instance of Usman Ghani. Therefore, the presence of complainant on the spot and reporting the matter in his house is doubtful and not reliable keeping in view the above omissions, particularly, his complete departure from the contents of F.I.R. by making dishonest improvement in his statement to strengthen the prosecution story. The rule for safe administration of justice is that improvement made by eye-witness in order to strengthen the prosecution case, lose their credibility and evidentiary value and when a witness made contradictory statement or improvement changing his version in order to in line his testimony with the prosecution story, if found to be deliberate and dishonest, would cause serious doubt on his veracity. Reliance is placed on the case Farman Ahmed v. Muhammad Inayat and others reported in 2007 SCMR 1825, wherein it has been held that improvements once found to be deliberate and dishonest would cast serious doubts on veracity of such witness. In the present case, the complainant has made deliberate and dishonest improvements in his statement to strengthen the prosecution case; therefore, his statement loses its credibility and evidentiary value.

9. Coming to the testimony of second witness, namely, Usman Ghani P.W.6. He stated in the first line of his cross-examination that as he had good terms with the complainant party due kinship, therefore, he had come to evidence due to his relationship with him. He further stated that he had stated in his statement before police and Court that complainant Ajab Gul and deceased Raham Bakht had come to his house (confronted not so recorded in his statements recorded under sections 161 and 164 Cr.P.C.). This story given in the F.I.R was improved by both the witnesses. The perusal of evidence of P.W.5 Ajeeb Gul reveals that he changed his whole version given in the F.I.R. The consequences of such dishonest improvements by both the eye-witnesses would surely dent the veracity of their testimonies. It is fundamental principle of jurisprudence, that is, to disbelieve a witness, it is not necessary that there should be numerous infirmities. If there is one which impeaches the credibility of the witness, that may make the entire statement doubtful.

10. Another discrepancy in the prosecution case is that complainant stated in the F.I.R. that Ghani-ur-Rehman and Faizullah had witnessed the occurrence and further disclosed that two days before Ghani-ur-Rehman had a quarrel with the convict-appellant, as such, Ghani-ur-Rehman was the important witness of prosecution but the prosecution did not produce both of them, as such, withheld its best evidence. It has been held by the honourable Supreme Court in a case of Lal Khan v. The State reported in 2006 SCMR 1846 that non-production of most natural and material witness of occurrence, would strongly lead to an inference of prosecutorial misconduct, which would not only be considered a source of undue advantage for prosecution but also an act of suppression of material facts causing prejudice to accused. It has been further held that act of withholding of most natural and a material witness of occurrence would create an impression that had such witness been brought into witness box, he might not have supported the prosecution and that the prosecution in such eventuality must not be in a position to avoid the consequence.

11. Another probing thing in the case is that according to prosecution story, fourteen empties of 7.62 bore were recovered from the spot and two persons have been charged by the complainant for indiscriminate firing but the same have not been sent to the laboratory in order to ascertain as to whether it was the act of a single person or otherwise.

12. True that there is abscondance in the account of convict-appellant but when the ocular account has been disbelieved then mere abscondance is not sufficient to prove the guilt. Reliance is placed on the case of Muhammad Khan and another v. The State (1999 SCMR 1220). In view of the above discussion and scrutiny of evidence from all angles, we are of the view that the prosecution has failed to prove the guilt of the appellant through unimpeachable ocular testimony. Capital punishment cannot be maintained on such like evidence. Resultantly, while extending the benefit of doubt, we accept the appeal filed by the appellants-convict by setting aside his conviction and sentence and acquit him of the charges levelled against him. He be set free forthwith, if not required in any other case. The Criminal Revision being No.13 of 2011 filed by the complainant is also dismissed. These are the detailed reasons for our short order of even date. HBT/442/P Appeal accepted.