2009 P Cr (PLP)

SYED YAHYA ZAHID GILANI, J.

Rehmatullah and his two sons, Hanifullah and Rifatullah were tried by learned Sessions Judge, D.I. Khan under sections .302/34, P.P.C., in case F.I.R. No.42 dated 26-8-2005 of Police Station Panyala, D.I. Khan, for the Qatl-e-Amd of Bakht Sherin, reported by his cousin Muhammad Saeed Jan complainant. Vide judgment dated 12-6-2007 he acquitted Rehmatullah and Rifatullah by extending them benefit of doubt, but convicted Hanifullah under section 302(b), P.P.C. and sentenced him to life imprisonment and a fine of Rs.50,000, payable to legal heirs of deceased as compensation, with the benefit of section 382-B, Cr.P.C. Consequently, the convict-appellant Hanifullah has preferred Criminal Appeal No.73 of 2007 against his conviction, complainant Muhammad Saeed Jan has preferred Criminal Revision No.13 of 2007 for enhancement of his sentence to death and the, complainant has filed Criminal Appeal No.71 of 2007 against the acquittal of Rehmatullah and Rifatullah. This judgment shall dispose them of jointly.

2. According to complainant's version, it was 8-00 p.m. when he along with his cousin Bakht Sherin while going to the Baithak of Atta-ur-Rehman, when reached near mosque of the village, the accused Rehmatullah along with his two sons Hanifullah and Rifatullah were seen sitting in the street armed with Kalashnikovs. When the complainant and deceased passed by them, Hanifullah convict-appellant fired at, Bakht Sherin who got hit and fell down. All the three accused then decamped. Bakht Sherin died on the spot. The assailants were recognized in the bulb light. Motive for the occurrence was altercation over bargain of a quail, at afternoon before the occurrence.

3. During trial, the prosecution relied upon the solitary statement of complainant Muhammad Saeed Jan P.W.9, medical evidence, recovery of bulb, one 7.62 bore empty and two spent bullets from the spot, motive and abscondence of the accused. The trial Court acquitted Rehmatullah and Rifatullah solely on the ground that no overt act of any kind was attributed to them and hence, their involvement in the crime was doubted. Hanifullah was convicted placing reliance on the ocular testimony of complainant, supported and corroborated by the other evidence mentioned above.

4. We have listened arguments of Mr. Abdul Latif Khan Baloch Advocate for the convict-appellant, Mr. Ghulam Hur Khan Baloch Advocate for the complainant party and Mr. Salimullah Khan Ranazai Advocate for State. Record has been scrutinized minutely.

5. Indeed, there is no previous blood feud or any other kind of enmity between the parties and the venue of occurrence is proved to be that which has been alleged by the complainant and shown in the site-plan Exh.P.B., because blood-stained earth, one empty of 7.62 bore giving smell of fresh discharge and two spent bullets of 7.62 bore have been recovered from the place of occurrence. It is also proved from the medical evidence that the deceased was done away with use of firearm because according to the post-mortem report, he had received two inlet and two exit wounds, most probably of Kalashnikov bullets, keeping in view the size of inlet wounds 1/4 x 1/4" and the blood on the garments of the deceased has been reported in F.S.L. report Exh.P.K. to be of human origin and of the same group of which the blood-stained earth recovered from the spot.

6. This being the background, the most crucial point left to be decided is that whether the solitary eye-witness Muhammad Saeed Jan P.W.8 had actually seen the occurrence and he rightly nominated the assailants or not?

7. Here, it is essential to be mentioned that the complainant stated that he and the deceased were proceeding to Baithak of Atta-ur-Rehman and coming in the street from north. He has neither shown the purpose of going to the Baithak nor the Investigating Officer examined Atta-ur-Rehman/owner of the Baithak to confirm expected coming of the deceased and the complainant to his Baithak at the relevant time. As such, the complainant is not only a related, but also a chance witness. Therefore, corroboration for his statement from other sources would be required on this ground as well as on the ground that he is the solitary witness of the case.

8. The first part of his statement is not appealing to mind that the three accused including one father and two sons, due to mere altercation over the sale of a quail, joined hands to kill the deceased. This is also not appealing to mind that all the three assailants were waiting for the deceased right in front of mosque of the village which is a public place and right under a 100 watts bulb installed over their heads, because normally the assailants try to hide themselves when they choose night time for a planned assault. While coming from the north in the street, wherein the occurrence allegedly took place, the complainant and deceased were supposed to turn towards their right side for going to the Baithak of Atta-ur-Rehman, but strangely enough, the presence of deceased has been shown at point No.1 where he could reach if he was turning towards left side and not the right side which was required. This physical feature of the spot contradicts the version of complainant. Similarly, the medical evidence is in sheer conflict with the ocular testimony of the complainant because the entrance wound No.1 is higher in level than its exit wound No.2. This line of fire could not be possible if the deceased was fired at while in standing position. The second entry wound No.3 and its exit wound No.4 are at the thigh and their level is straight. If according to the testimony of eye-witness, the deceased received this injury in standing position, then the entrance and exit wounds Nos.3 and 4 should have been from up downward. Therefore, it was rightly argued by learned counsel for the convict-appellant and respondents-accused that the deceased was not hit in the mode and manner as alleged by the eye-witness. His this explanation is convincing because point No.1 where blood of the deceased was recovered is close to the wall. Two spent bullets were also recovered from beneath the wall which could be present over there after travelling through the body of the deceased when he was in sitting position, otherwise, if the deceased was hit in standing position, then the bullets could easily have penetrated in the wall which is made of mud. This lack of circumstantial support to the ocular testimony from physical features of the spot and conflict of medical evidence aggravates the impact of doubt when we find that there is delay of at least 1/2 hour in lodging report, if one hour time really consumed in shifting the dead body to police station at a distance of 18-19 kilometers. The delay reflects doubt on the presence of complainant on the spot and hints towards consultations and deliberations before nominating the accused. The motive is very weak. They eye-witness admits that the altercation over quail did not take place in his presence and the Investigating Officer admits that he did not inquire into the allegations pertaining to the motive. Exaggeration of number of accused by attributing no overt act but including the acquitted father and brother of the convict-appellant is also not ignorable and creates a dent of doubt in the whole prosecution case.

9. In the light of above discussion, it is concluded that the ocular testimony of solitary eye-witness, who is a chance witness, cannot be relied upon for conviction on capital charge because he has been belied by the medical evidence as well as physical features of the scene of occurrence coupled with unconvincing version of prosecution and weakness of motive. In such circumstances, the short period of alleged abscondence of accused comprising of 2-1/2 months is of no use. We, therefore, hold that the prosecution has miserably failed to prove case against the accused beyond shadow of doubt. As such accused Rehmatullah and Rifatullah were rightly acquitted and the accused Hanifullah was wrongly convicted.

10. We, therefore, accept Criminal .Appeal No.73 of 2007 of Hanifullah convict-appellant and setting aside his conviction and sentence, acquit him with the direction that he shall be released forthwith if not required in any other case, The acquittal of Rehmatullah and Rifatullah vide the same judgment is maintained and appeal against their acquittal bearing Criminal Appeal No.71 of 2007 is dismissed. In view of acquittal of the convict-appellant, Criminal Revision No.13 of 2007 for enhancement of his sentence is dismissed. H.B.T./150/P Appeal accepted.