2006 P Cr (PLP)

AKHTAR ZAMAN MALGHANI, J.

This criminal appeal was heard by the Members of the Division Bench of this Court comprising of Mr. Justice Muhammad Nadir Khan and Mr. Justice Mehta Kailash Nath Kohli. The draft of proposed judgment written by Mr. Mehta Kailash Nath Kohli was gone through by the Honourable Senior Member of the Bench and he found himself unable to agree with the conclusion as contained in the draft judgment proposing for dismissal of appeal. Consequently, I having seized with the matter as referee Judge issued notices to the learned counsel for the appellant, as well as; learned State counsel.

2. I have heard the learned counsel for the appellant as well as learned State counsel. The learned counsel for the appellant supported the judgment authored by Honourable Senior Member of the Bench (Mr. Justice Muhammad Nadir Khan) and contended that it was a case of mistaken identity and on the basis of sole statement of P.W.1 conviction on capital charge is not sustainable without any independent corroboration, which is lacking in the case. She further contended that admittedly D.W.1 Fazal Muhammad, who was a constable, was the first person reached at the spot along with the appellant and another constable, as such; his statement cannot be lightly ignored and if any benefit arises in light of his statement, the same should be extended to the appellant. According to her, the appellant was not previously known to P.W.1 Mst. Ma'rooza, therefore, her claim to have identified the appellant without holding identification parade test; was of no value. In support of her contentions she referred to the judgments reported in 1991 SCMR 1134, 1992 SCMR 196, 1984 SCMR 1092, 2000 SCMR 683, 200.2 SCMR 1304, 2003 PCr.LJ 1847; 2002 PCr.LJ 1072; 2001 SCMR 177 and PLD 2005 Pesh.

294. On the other hand, the learned State counsel contended that P.W.1 Ma'rooza, who had no ill-will or motive against the appellant to falsely implicate him in the commission of offence, has identified him as one of the culprits who committed murder of her husband by attributing specific role of causing Lathi blow to her husband, which statement was further corroborated by medical evidence confirming that the deceased did receive blunt weapon injury on his head besides injuries caused by fire-arm. He further contended that before registration of F.I.R. P.W.1 Ma'rooza identified the appellant, who was called at the spot by S.H.O., therefore, there was no need for identification parade and only on this score the straightforward and confidence-inspiring evidence of P.W.1 cannot be discarded, which has been further corroborated by the statements of P.W.2 Nasrullah, P.W.3 Zain-ud-Din and P.W.S Abdul Rehman.

3. I have carefully considered the contentions put forth by the parties learned counsel and have also gone through the proposed judgment written by his Lordship Mr. Justice Mehta Kailash Nath Kohli; and dissenting judgment delivered by Honourable Senior Member of the Bench (Mr. Justice Muhammad Nadir Khan).

4. According to the prosecution version on the night between 24-1-2000 and 25-1-2000 three persons entered into the house of complainant Bibi Ma'rooza situated in Mohalla Haji Hassan where she along with her husband and three children was sleeping and after murdering Ghulam Sakhi, husband of complainant made their escape good. P.W.1 Bibi Ma'rooza after climbing over the roof of house raised hue and cry, which attracted the police on Gasht, who entered into the house accompanied by the appellant. P.W.1 Ma'rooza claimed to have identified him as one of the culprits, who inflicted Lathi blow on her husband's head. It may be seen that according to the prosecution case on receiving information Khawaj Muhammad S.H.O. and other police officials including P.W.2 Nasrullah, P.W.3 Zain-ud-Din and P.W.5 Abdul Rehman reached at the spot and after making inquiry from P.W.I Ma'rooza called two constables and the appellant who was Chowkidar of the area, inside the house and it is claimed that as soon the appellant entered into the house P.W.1 stated that he was one of the culprits, who committed murder of deceased. She also identified the cap and coverlet worn by the appellant, as well as; the stick carried by him. The perusal of statements of above-mentioned witnesses reveals that prior to arrival of S.H.O. Khawaj Muhammad, P.W.2 Nasrullah, P.W.3 Zian-ud-Din and P.W.5 Abdul Rehman the appellant accompanied by Fazal Muhammad and Ramzan constables were attracted at the spot on alarm of P.W. 1, but surprisingly she did not identify the appellant as one of the culprits at that time, as is evident from the statement of D.W.1 Fazal Muhammad constable, whose presence has been admitted by all the P.Ws. including P.W.1 Ma'rooza, who stated that on her raising hue and cry the policemen entered into the house along with appellant and she at that time identified the appellant. It may be noted that Fazal Muhammad and Muhammad Ramzan were cited as witnesses in the calendar of witnesses, but surprisingly the prosecution without any reason dropped them and did not produce them. Though it is prerogative of the prosecution to produce any number of witnesses in support of its version A and the Court has to see quality of the evidence and not the quantity, yet in view of peculiar facts and circumstances of the case and admitted position that Fazal Muhammad and Ramzan were the first who reached at the spot, their evidence gained importance and adverse inference, has to be drawn against the prosecution for withholding their evidence. It may further be noted that alter reaching at the place of occurrence S.H.O. Khawaj Muhammad enquired from P.W.1 Bibi Ma'rooza about the incident and she narrated the whole story, but he did not bother to reduce report of P.W.1 into writing promptly, which means F.I.R. was lodged after preliminary investigation, on account of which it lost its evidentiary value. As already observed according to P.W.1 after escape of the culprits she climbed over the roof and raised hue and cry, which attracted three policemen and the appellant, who entered in the house and at that time she identified the appellant as one of the culprits, but herlB statement to that extent has not been supported by P.W.2, P.W.3 and P.W.5 according to whom on their reaching at the spot P.W.1 told them that three persons, two armed with cudgels and one with kalashnikov, entered into the room and committed murder of her husband Ghulam Sakhi, whereupon; S.H.O. Khawaj Muhammad called the appellant, who was standing outside the house and as soon he entered in the room, the widow of deceased identified him by saying that he had inflicted Lathi blow to her husband. If she had already identified the appellant at the time of his entrance into the house along with Fazal Muhammad and Ramzan constables, then why she has not informed Khawaj Muhammad S.H.O. or P.W.2, P.W.3 and P.W.5 that she had already identified one of the accused persons. Her conduct and registration of F.I.R. after preliminary investigation shows that the appellant was later on implicated in the case after due deliberation. The fact that she has. not given description of other two culprits further shows that she did not identify the accused persons who committed murder of her husband. The conduct of the appellant soon after the occurrence is also relevant. It has come on record that he did not escape as according to P.Ws., as well as D.W. the appellant remained present on his duty even after the C occurrence. Had P.W.1 Ma'rooza identified the appellant on his first visit, it was easy for him to have made his escape good, but he remained present there along with two constables till arrival of S.H.O. and other police officials, which means he was not involved in the commission of offence. Though conviction can be sustained on sole testimony of a witness provided the same is confidence-inspiring, yet in the instant case in view of above discussed diverse factors no implicit reliance could be placed on the statement of P.W.1 Ma'rooza for basing conviction on a capital charge. For the foregoing reasons, I am inclined to agree with the conclusion drawn by his Lordship Mr. Justice Muhammad Nadir Khan for the reasons mentioned in his judgment, as well as; on the additional grounds as discussed above. Consequently; the appeal is accepted and the impugned judgment, dated 12-3-2002 passed by Special Judge, S.T.A. is set aside and the appellant is acquitted of the charge. He be set at liberty forthwith, if not required in connection with any other case. N.H.Q./96/Q?????????????????????????????????????????????????????????????????????????????????????? Appeal accepted.