2015 P Cr (PLP)

ASSADULLAH KHAN CHAMKANI, J.

Appellant Azmat Ullah alias Daddi was tried by learned Additional Sessions Judge-I, Kohat in case FIR No.453 dated 4-6-2009, registered under section 302, P.P.C., at Police Station Jungle Khel, District Kohat, and on conclusion of trial, vide judgment dated 18-1-2011, he was convicted under section 302(b), P.P.C. and sentenced to undergo imprisonment for life as Ta'zir and to pay Rs.1,00,000 as compensation in terms of section 544-A, Cr.P.C. to LRs of deceased or in default thereof to undergo 6 months' S.I. further. Benefit of section 382-B, Cr.P.C. was extended to him.

2. Appellant has filed the instant appeal challenging his conviction and sentence, while petitioner-complainant Pir Badshah has filed Criminal R. No.44-P of 2011, for enhancement of sentence of convict from life imprisonment to normal penalty of death. As, both appeal as well as criminal revision petition, are arising out of the same judgment of the trial Court referred above, hence, we are going to dispose of the same through this common judgment.

3. On 4-6-2009, Kirman Ali, ASI (P.W.7) during patrol duty, on receipt of information about dead body of a person lying near Mian Noor mosque Jungle Khel, rushed there where Pir Badshah (P.W.8) present dead body of his brother Safdar Shah reported him that on the night of occurrence he along with his deceased brother after offering "Issha prayer" came out of the mosque. At 2220 hours, when they reached Pir Khel Chowk Garhi Behram Shah, accused/appellant, Azmat alias Daddi duly armed with pistol emerged there and opened fire at the deceased with intention to commit his murder, resultantly, he was hit, fell on the ground and died on the spot. Motive behind the occurrence is stated to be exchange of abuses inter-se the deceased and accused at morning. Report of complainant was reduced into writing in shape of murasila Exh.P.W.7/1 by Kirman Ali ASI. He prepared injury sheet and inquest report of the deceased Exhs.P.W.7/2 and P.W.7/3, respectively and sent the dead body to mortuary under the escort of constable Majid for autopsy.

4. Naqeeb Ullah S.I. (P.W.9) proceeded to the spot and prepared site plan Exh.PB at the instance of complainant Pir Badshah. During spot inspection, he secured blood with the help of cotton from the place of the deceased Exhs.P.1 and 6 empties and one live round of .30 bore. He also took into possession the last worn bloodstained garments of the deceased vide memo. Exh.P.W.4/2, sent the bloodstained articles to the FSL, report whereof is Exh.PZ.

5. After arrest of the accused and completion of investigation challan was submitted against the accused/appellant before the learned trial Court, where he was formally charge sheeted to which he pleaded not guilty and claimed trial. To bring home guilt of the appellant/accused, prosecution examined as many as nine witnesses. After closure of the prosecution evidence, statement of accused was recorded under section 342, Cr.P.C. wherein he denied the prosecution allegations and professed his innocence. He, however, neither wished to be examined on oath nor opted to produce evidence in defence. On conclusion of trial, learned trial Court, after hearing both the sides, convicted and sentenced the accused/appellant, as mentioned above.

6. Learned counsel for the appellant argued that impugned judgment is against law, facts and principles of appreciation of evidence; that the occurrence is nocturnal and no source of light has been disclosed by the complainant in his initial report nor any electric bulb has been recovered by the I.O. from the spot; that was an unseen occurrence and complainant Pir Badshah, who is real brother of the deceased is procured and interested witness that's why his testimony does not find corroboration from medical evidence, site plan as well as other circumstances of the case; that motive remained unproved; that, prosecution has miserably failed to prove the guilt of appellant through cogent and confidence inspiring evidence, therefore, the impugned judgment of the trial court is liable to be reversed.

7. Conversely, learned counsel for the complainant argued that appellant is directly and singularly charged for murder of the deceased and in case of single accused substitution is a rear phenomenon; that complainant has established his presence at the spot and has furnished the true account of the occurrence, which is corroborated by medical evidence, site plan, recoveries from the spot coupled with noticeable abscondence of the accused and the defence has badly failed to create any dent in the prosecution evidence, therefore, learned trial Court was justified by holding the appellant guilt of the offence. He, however, added that when the guilt of the appellant was proved upto the hilt, the trial Court ought to have awarded him maximum punishment provided for the offence. He sought dismissal of the appeal and requested for enhancement of sentence.

8. Learned A.A.G. adopted the arguments of learned counsel for the complainant.

9. We have considered the respective submissions of learned counsel for the parties and perused the record with their able assistance.

10. True that accused is directly and singularly charged for murder of deceased Safdar Shah and the Hon'ble Supreme Court has held in so many verdicts that substitution of single accused in a murder charge is a rare phenomenon but still to record conviction of the accused charged singularly, there must be ocular account of unimpeachable character, trustworthy and confidence inspiring, corroborated by other material circumstantial evidence. Occurrence in this case is nocturnal, taken place at Pir Khel Chowk Ghari Behram Shah, situated at a little distance from Police Station Jungle Khel. A look over initial report of complainant Pir Badshah (P.W.8) reveals that he has not disclosed about any source of light whether electric or moon on the spot in which he identified the accused. Similarly, the I.O. during spot inspection has not recovered any electric bulb or any other lighting device so as to make possible identification of the assailant. Complainant has not uttered a single word as to how he identified the accused. In the circumstances, identification of the accused is highly doubtful.

11. The occurrence has taken place at 2220 hours which has been reported at 2245 hours on the spot i.e. after 25 minutes. The place of occurrence is Pir Khel Chowk Jungle Khel, which, as shown in the site plan, is surrounded by houses and shops and is at a distance of 1/2 Kilometer from Police Station Jungle Khel. The factum of existence of shops and houses near the spot has also been admitted by complainant in his cross-examination. The complainant has not furnished any explanation as to why he remained on the spot with the dead body without making any effort to inform his house inmates, the inmates of the near houses or the Police Station about the occurrence. The unnatural conduct of complainant like a silent spectator or a effigy is quite disturbing one because he has not shown any effort to shift the dead body of his deceased brother to the hospital or to Police Station. Had he been with the deceased, he would have tried his best to shift him to the hospital because in such like situation the near relations never satisfy about death of their beloved unless the doctor confirm the same, that's why their first priority always remain to shift the victim as early as possible. Besides, had complainant been present with the deceased he would have took him in his lap and in this way his clothes would have smeared with his blood, but no such clothes has either been taken by the I.O. nor produced by him, which was an important piece of evidence for establishing his presence with the deceased. Complainant in his cross-examination deposed that he accompanied the dead body of deceased to hospital but inquest report of the deceased speaks otherwise, where one Arif Shah and Imtiaz are mentioned as identifiers of the dead body. Had complainant accompanied the deceased, he should be one of the identifiers. Arif Shah identifier appeared as P.W.2. In cross-examination he deposed that he is Mohallahdar of the deceased and when he reached hospital, police was already present with the dead body. P.W.2 has not uttered a single word about presence of complainant in the hospital. Had complainant been present there, P.W.2 would have mentioned about his presence. All these circumstances, particularly, the unnatural conduct of the complainant like a silent spectator, without making any hue and cry to inform his relatives, inmates of the surrounding houses or police, create serious doubts about his presence on the spot at the time of occurrence. Rather, the peculiar facts and circumstances of the case strongly suggest that he was procured, later on, and was cited an eyewitness of the occurrence. Complainant has badly failed to establish his presence on the spot at the time of occurrence, therefore, his testimony, which otherwise, is shaky, scanty cannot be believed and relied upon.

12. Naqeebullah S.I., examined as P.W.9 has totally contradicted the version of complainant. In his examination-in-chief he deposed that "during spot inspection I secured blood with the help of cotton from the place of the deceased, which is already exhibited as P.1. Similarly, six empties of 7.62 bore and one live .30 bore empty was also recovered from the place of the accused, which are already exhibited as P.2 and P.3". Whereas, the weapon of offence attributed to accused by the complainant in his report has been categorically mentioned, as pistol. Thus, recovery of 7.62 bore empties from the spot totally negates the prosecution version. No doubt, Naqeebullah SI was re-examined as (P.W.9) on 3-12-2010 i.e. after two months of his earlier statement, wherein he clarified that the empties were that of .30 bore pistol, but this amounts to dishonest improvements to fill up the lacuna in the prosecution case. If clarification of Naqeebullah is considered to be true, even then mere recovery of empties in absence of direct evidence and recovery of crime pistol as well as FSL report about match of the empties and pistol, would not advance the case of the prosecution because such like recoveries are always considered as corroborative pieces of evidence which is taken into consideration along with direct evidence. Similarly, injuries on the person of the deceased also do not commensurate with the number of empties recovered. No doubt, bloodstained earth from the place of deceased and his bloodstained garments have been taken into possession by the I.O. during investigation and sent to the FSL for chemical analysis, report whereof is in positive but this piece of evidence can only advance the case of the prosecution to the extent that deceased was done to death with firearm on that particular place/spot, but would not be sufficient to prove that, that was the appellant who committed the said murder. Guidance may be derived from Riaz Ahmed's case (2010 SCMR 846). As per the dictum of the apex Court, corroborative evidence is meant to test the veracity of ocular evidence. Both corroborative and ocular testimony is to be read together and not in isolation. Wisdom in this regard may be derived from Ijaz Ahmed's case (1997 SCMR 1279) and Asadullah's case (PLD 1971 SC 541). It has been held by the apex Court in case titled, "Saifullah v. The State" (1985 SCMR 410), that when there is no eye-witness to be relied upon, then there is nothing, which can be corroborated by the recovery. Similarly, in case titled, "Riaz Masih v. The State" 1995 SCMR 1730, the honourable apex Court held that recovery of crime weapon by itself is not sufficient for conviction on murder charge. Reliance can also be placed on case titled, Siraj v. Crown (PLD 1956 Federal Court 123) and Saifullah's case (1985 SCMR 410).

13. As regards medical evidence, the same can only confirm the ocular evidence with regard to the seat of injury, nature of the injury, kind of weapon used in the incident, but in absence of substantive evidence, the same would not be enough to connect the accused with commission of offence.

14. As regards abscondence of the appellant, on one hand, he has denied the same in his statement under section 342, Cr.P.C. while on the other hand, prosecution cannot seek support from factum of abscondence of accused when eye-witness has not established his presence at the spot and his testimony has been disbelieved being pregnant of doubts and suffering from material contradictions. Mere abscosion is not a conclusive proof of guilt of accused person. It is only a suspicious circumstance against an accused that he was found guilty of the offence. However, suspicions after all are suspicions. The same cannot take the place of proof. The value of abscondence, therefore, depends on the facts of each case. The absconsion of the accused may be consistent with the guilt or innocence of the accused, which is to be decided keeping in view over all facts of the case. Mere abscondence of accused could not be made the basis for his conviction. Abscondence is a relevant fact, but it can be used as a corroborative piece of evidence, which cannot be read in isolation but has to be read along with substantive piece of evidence. Reliance placed on case titled "Rahimullah Jan v. Kashif and another" (PLD 2008 Supreme Court 298).

15. The crux of the above discussion is that prosecution has miserably failed to bring home the guilt of the appellant-accused beyond shadow of doubt through cogent and confidence inspiring evidence. It is cardinal principle of administration of criminal justice that prosecution is bound to prove its case beyond any shadow of doubt. If any reasonable doubt arises in the prosecution case, benefit of the same must be extended to the accused not as a grace or concession, but as a matter of right. Likewise, it is also well embedded principle of criminal justice that there is no need of so many doubts in the prosecution case, rather any reasonable doubt arising out of the prosecution evidence, pricking the judicious mind is sufficient for acquittal of the accused. Basically, it is the principle enshrined in Islamic jurisprudence, fourteen hundred years ago that "it would be better to acquit hundred culprits than convicting one innocent soul." Which has now been transformed into the form of the principle that, "acquitting by error would be better than convicting by error". The said commandment has evolved into the theory of benefit of doubt, which, invariably, is extended to the accused for safe administration of criminal justice. The impugned judgment of the learned trial Court being the result of misreading and non-reading of evidence available on record, is not sustainable. Resultantly, this appeal was allowed. Conviction and sentence of the appellant were set aside and he was acquitted while connected Cr. R. No.44 of 2011, was dismissed.

16. These are the reasons of our short order of even date which is reproduced as under:-- "For reasons to be recorded later on, this appeal is allowed. Conviction and sentences of the appellant Azmatullah awarded to him by the learned Additional Sessions Judge, Kohat vide impugned judgment dated 18-1-2011 in case FIR No.453 dated 4-6-2009 under section 302, P.P.C., Police Station Jungle Khel Kohat are set aside and he is acquitted of all the charges levelled against him. He be set free forthwith, if not required in any other case". HBT/424/P Appeal allowed.