2002 PLP 347 (MLD)

IJAZ‑UL‑HASSAN, J.‑‑‑The instant Criminal Appeal No.45 of 1994 has been filed by the State through Advocate‑General, N.‑W.F.P., under section 417(2), Cr.P.C. impugning the order of acquittal passed by the learned Additional Sessions Judge, Abbottabad vide judgment dated 1‑3‑1994 whereby Iftikhar Ahmed alias Bhutto son of Yaqoob Khan respondent, charged under section No.302, P.P.C. for murder of his co villager Sagheer Khan son of Nazeer Khan, young boy of 15/16 years of age, was acquitted.

2. The crime in question is alleged to have taken place on 26‑12‑1991 at about `Peshinwela' on the thoroughfare near a place Mosoma 'Gali Wala Doga' within the precincts of Police Station Havelian and the report Exh.P.A./1 about it was lodged on the same day at 17‑00 hours by P.W. Nazeer Khan, father of the deceased.

3. The facts of the case as highlighted in the Murasila are that on the eventful day at about 11 a.m. Mst. Taj Bibi P.W. and her deceased son Sagheer Khan had gone to the venue of occurrence, i.e. 'Dhaka Rakh' to cut tree leaves for their cattles. After cutting the leaves they were returning. The deceased was ahead of his mother. When they reached the scene of occurrence, a shot was fired with which the deceased was hit. The victim fell on the ground and expired at the spot. The accused was seen running from the spot with a .12 bore gun in his hand. Explaining the motive it was mentioned that 3/4 days prior to the occurrence an altercation had taken place between the deceased and the accused, which culminated in the murder of the deceased.

4. Complainant Nazeer P.W., an employee in a Flour Mills at Havelian was on duty when he was informed by his relative Sher Afzal P.W. about the murder of his son. Muhammad Nazeer P.W immediately left the duty and reached the spot at about 3 p. m He found his wife Mst. Taj Bibi present at the spot. He was informed by his wife about the occurrence. While on his way to the police station to lodge report Muhammad Wazeer came across a police party headed by IHC Sagheer Hussain P.W. Muhammad Nazeer reported the matter to the IHC who drafted the Murasila Exh. P.A./11 and sent the same for registration of a case. The IHC then prepared inquest report (Exh.P.W.ll/1 and injury sheet (Exh.P.W.lI/2) of the deceased and despatched the dead body of Sagheer . Khan deceased . to the hospital for post‑mortem examination under the escort ,of F.C. Pervez P.W. As darkness had prevailed the investigation was suspended. On the following day the IHC prepared site‑plan Exh.P.B. at the pointation of complainant and Mst. Taj Bibi P.W. He picked up blood‑stained earth and sand from the spot and sealed the same into a parcel vide recovery memo. Exh.P.W.2/1 in presence of the marginal witnesses. ASI Qazi Abdul Khaliq P.W. in the meanwhile came back and took the investigation in hand. He arrested the accused on 11‑2‑1992 when his pre‑arrest bail was not confirmed. The accused on the following day, i.e.12‑2‑1992 while in handcuffs, led the Investigating Officer to his house in village Saryala and handed over .12 bore shot gun to him. The,shot gun Exh. P.2 was taken into possession vide recovery memo. Exh.P.W.3/1 in the presence of marginal witness. As the accused was having no licence a Murasila was sent to the Police Station for registration of case against him under section 13, Arms Ohdinance, 1965. After completion of the investigation complete challan w1ts submitted in Court.

5. The post‑mortem on the dead body of Sagheer Khan was conducted by Dr. Jumma Khan (P.W.1) RHC, Havelian on 27‑12‑1991 at 8:30 a.m. who found the following injuries on it:‑‑ (1) Six entrance wounds and a grazing surface each about 1/2" x 1/4" over an area of 3" x 2" on the right upper part of the front of the chest, over an area of 3" x 2" at the level of right clavical which is fractured. A wadding piece was recovered from one of the entrance. (2) Entrance 1/4" x 1/4" on the right side neck just under the angle of the jaw. (3) Exit 1" x 1" on the right side back of the chest at the level of right shoulder blade which is fractured. During external examination, thorax walls, pleaurae on the right side, rikht lung, blood vessels were found injured. Abdomen was healthy and contained semi‑digested food. Small intestines and large intestines were found healthy. So was the bladder. Bone joints and muscles right c4vical 2nd rib on the right side and right shoulder were found fractured.

6. In the opinion of the doctor the death had occurred as a result of excessive haemorrhage and damage to the vital organs.

7. At the commencement of the trial the learned trial Court framed a charge under section 302, P.P.C. against the accused/respondent to which he pleaded not guilty and claimed a trial.

8. During the trial the prosecution examined as many as 13 witnesses and withheld Zamurd Khan P.W. as unnecessary. Mst. Taj Bihi P.W. furnished the ocular account of the incident and also stated about the motive. Dr. Jumma Khan P.W. provided the medical evidence. Mbammad Nazeer P.W. claimed having reached the spot at 3 P.M. on the information supplied to him through Sher Afzal P.W. about the m4rder of his son. He also claimed to have reported the matter to the police. Sher Afzal P.W. confirmed having informed Nazir P.W. about the crime in question. The remaining are police officials who carried out the investigation.

9. In his statement recorded under section 342, Cr.P.C. the accused/respondent denied and controverted all the allegations of fact levelled against him by the prosecution and professed his innocence. He also denied having pointed out the gun to the Investigating Officer and maintained that the gun was licensed in the name of his father and the same had been produced by his elder brother on the asking of the Investigating Officer.

10. At the conclusion of the trial the learned Additional Sessions Judge, Abbottabad, found the prosecution evidence "full of contradictions, omissions and developments" and as such while extending benefit of doubt, acquitted the accused‑respondent as noticed and detailed above.

11. We have heard Mr. Muhammad Ayub, Assistant Advocate-General for the State assisted by Mr. Khan Afsar, Advocate for the complained and Mr. Ghulam Mujtaba Khan Jadoon, Advocate for the accused‑respondent.

12. After hearing the learned counsel for the parties and going through the record we have no hesitation in concluding that Mst. Taj Bibi was not present .on the spot and she had not witnessed the occurrence, The prosecution case entirely rests on the solitary statement of the abovenamed witness who has been rightly disbelieved by the learned trial Judge and we endorse his views. It is true that the solitary statement of a witness is sufficient to base conviction of an accused person provided it rings true but it is sole testimony of related chance witness is seldom relied upon in a case 'involving a capital charge unless such witness inspires confidence by furnishing plausible and convincing explanation for his presence at a place where he is not ordinarily expected to be present at a given time. Mst. Taj Bibi P.AK. claims to have gone to the spot accompanied by her deceased son for cutting tree leaves. After having done so, the accused‑respondent is stated to have appeared at the spot and fired at the deceased. Strangely enough no bundle of tree leaves has been recovered from the spot which falsifies the version of Mst. Taj Bibi of being at the spot at the time of occurrence. Again she had no occasion to travel all the way from her village to Dhaka‑Rakh, a desolate place to cut leaves, when the leaves were available in her village and in the surrounding areas. Mst. Gul Zar and Mst. Razia relatives of Mst. Taj Bibi are stated to have helped Mst. Taj Bibi in placing the deceased on a cot. There is nothing on the record to demonstrate as to how and under what circumstances these ladies appeared at the spot and facilitated the placing of the victim on a cot. These ladies have not been produced at the trial which adversely reflects on the prosecution version. One Sher Afzal P.W. a close relative of the complainant, is stated to have informed the complainant at Havelian about the murder of the deceased but the record is silent to show as to how Sher Afzal P.W. had come to know of the incident. The F.I.R. has also been lodged after considerable delay which appears to have been made after consultation and preliminary investigation and as such its authenticity is questionable. Insofar as the abscondence of the accused‑respondent is concerned, it is meaningless because it can neither remove the defects of the oral 8 evidence nor is by‑itself sufficient to bring guilt home to the accused -respondent. The medical evidence also does not support the accusation and the motive has not been satisfactorily proved. The evidence regarding recovery of the gun at the pointation of the accused‑respondent is also highly doubtful.

13. The grounds of acquittal of the accused‑respondent cannot be called fanciful or perverse. As a result, we find no substance in this I appeal which is hereby dismissed. H.B.T./400/P Appeal dismissed.