2018 PLP 18 (YLRN)

MUHAMMAD TARIQ ABBASI, J.--This single judgment shall decide the above captioned matters, as both are outcome of same judgment dated 03.05.2.016, passed by the learned Additional Sessions Judge, Jhelum, whereby in case FIR No. 16, dated 30.01.2010, registered under sections 302/ 148/149, P.P.C., at Police Station Chotala, District Jhelum, Sher Afzal (hereinafter referred to as the appellant), was convicted under section 302(b), P.P.C. and sentenced to imprisonment for life, with compensation of Rs.2,00,000/-, payable to legal heirs of the deceased, failing which to further undergo simple imprisonment for six months. The benefit of section 382-B, Cr.P.C., was also extended in favour of the appellant.

2. The above mentioned case was registered, with the precise allegations, that the appellant as well as his co-accused, namely Shahzad alias Shadu, Abdul Waheed, Ibrar, Mazhar Hussain and Talib Hussain had attacked at Rajjab Hussain (hereafter referred to as the deceased) and caused him following injuries:-- i) Shahzad alias Shadu (murdered during trial) made a burst of Kalashnikov, which landed at pelvis of the deceased. ii) Sher Afzal alias Sheri (present appellant), with 244 bore rifle, had caused injury on left shin of the deceased. iii) Abdul Waheed (co-accused sentenced to death by the trial court, but acquitted in appeal), with 24 bore rifle had caused injury on left thigh and knee of the deceased. iv) Ibrar (co-accused acquitted by the learned trial court, with 30 bore pistol, had caused an injury on left wrist of the deceased. v) Mazhar Hussain and Talib Husain (co-accused) since acquitted by the learned trial court), while armed with firearms, remained with him at the spot. The alleged prosecution story was that the above named accused, while committing the above mentioned role, were seen by Rashid Mehmood complainant (PW-12) and Abid Husain (PW-13).

3. As stated above, Shahzad alias Shadu (co-accused) was murdered during the trial, hence trial to his extent was abated. Ibrar and Mazhar Hussain (co-accused), having the above mentioned role and charge, were acquitted, through judgment dated 07.05.2012, passed by the Additional Sessions Judge, Jhelum, whereas Talib Hussain co-accused, with the charge mentioned above, was relieved by the learned Trial Court, through judgment dated 26.10.2010.

4. Abdul Waheed co-accused, having the above mentioned allegations, role and charge, through judgment dated 07.05.2012, passed by the learned Trial Court, was convicted and sentenced to death. He had challenged his conviction, before this court, through Crl. Appeal No. 238/2012, whereas the State had forwarded Murder Reference bearing No. 49/2012. Both were decided by a learned Division Bench of this court on 25.05.2016, whereby the appeal was accepted and the above named convict was acquitted of the charge, under the following reasons and grounds:-- "According to the prosecution, what brought the deceased in the company of eye-witnesses, at the venue was a proposed settlement/compromise with the accused at their residence and in this backdrop, he confronted the appellant and co-accused at 8:25 p.m. in the month of January; it related to a case of robbery registered at the instance of the appellant wherein the deceased was a nominated accused. The manner in which the deceased was allegedly induced to visit his opponent at an odd hour of night for the stated purpose is far from being plausible and even if it is believed to have actually happened, there was no occasion for Shahzad alias Shadu co-accused to inquire from the appellant about his identity. Equally unbelievable is the receipt of multiple fire shots by the deceased with an automatic weapon while he was statedly grappling with the appellant as the latter could not possibly escape consequence thereof; Sher Afzal alias Sheri co-accused as well as the appellant were alleged to have made burst fire shots on to the deceased, hardly needed when he was already hit Shahzad alias Shadu, so was absolutely unnecessary and purposeless for Ibrar accused to hit the deceased with a single shot of 30-caliber pistol. Presence of Rashid Mehmood (PW-11) and Abid Hussain (PW-12) so as to witness the occurrence and leave the spot unscathed is also outside the ambit of probability of their presence at the scene. Shifting of the deceased to DHQ Hospital Rawalpindi by the witnesses when he was already lying dead is yet another intriguing aspect of the case. Argument that occurrence did not take place as alleged seemingly is not entirely beside the mark as the circumstances referred to above admit a real possibility suggestive of a situation incompatible with the story related in Ex.PL. Acquittal of Mazhar Hussain, Ibrar Hussain and Talib Hussain co-accused, warrants a more cautious and careful scrutiny of prosecution evidence qua the appellant as Ibrar Hussain accused is assigned an effective shot to the deceased."

5. From the above mentioned findings, it is clear that the above named eye-witnesses, were disbelieved. In this way, when the alleged eye-witnesses have already been disbelieved qua involvement of the above named co-accused, then for believing them against the appellant, some strong and independent corroboration is required, which in the present case is missing. In this regard, reliance may be made to the case titled "Muhammad Akram v. The State" reported as 2012 SCMR 440, wherein the august Supreme Court of Pakistan has held as under:-- "Except for the oral statements of eye-witnesses there is nothing on record which could establish the presence of both the eye-witnesses at the spot and as their presence at the spot appears to be doubtful, no reliance could be placed on their testimonies to convict the appellant on a capital charge. Since the same set of evidence has been disbelieved qua the involvement of Muhammad Aslam, a such, the same evidence cannot be relied upon in order to convict the appellant on a capital charge as the statements of both the eye-witnesses do not find any corroboration from any piece of independent evidence."

6. The learned Prosecutor as well as the learned counsel for the complainant have frankly conceded that if the above named eye-witnesses are excluded from the account, then except absconsion of the appellant, nothing else against him is available on the record. It has been held by the superior courts of the country in a number of judgments that mere absconsion could not be considered as a proof of guilt of an accused. If any case law is needed to fortify this view, reference could be made to the case of "Rasool Muhammad v. Asal Muhammad and another" (1995 SCMR 1373), where the Hon'ble Supreme Court of Pakistan observed as under:-- "Furthermore, disappearance of a person named as a murderer/culprit after the occurrence, is but natural, whether named rightly or wrongly. Abscondence per se is not a proof of the guilt of an accused person."

7. All the above mentioned facts and circumstances, to my mind, have made the prosecution case and the charge against the appellant highly doubtful and as such he is entitled to due benefit, not as a matter of grace or concession, but as of right. In this regard, I am fortified by the dictum laid down in the case titled "Muhammad Khan another v. The State" reported as 1999 SCMR 1220 relevant para whereof reads as under:-- "It is axiomatic and universally recognized principle of law that conviction must be founded on unimpeachable evidence and certainty of guilt and hence any doubt that arises in the prosecution case must be resolved in favour of the accused. It is, therefore, imperative for the Court to examine and consider all the relevant events preceding and leading to the occurrence so as to arrive at a correct conclusion. Where the evidence examined by the prosecution is found inherently unreliable, improbable and against natural course of human conduct, then the conclusion must be that the prosecution failed to prove guilt beyond reasonable doubt. It would be unsafe to rely on the ocular evidence which has been moulded, changed and improved step by step so as to fit in with the other evidence on record. It is obvious that truth and falsity of the prosecution case can only be judged when the entire evidence and circumstances are scrutinized and examined in its correct perspective."

8. Resultantly, the impugned judgment ending into conviction and sentence of the appellant could not be termed as justified. Consequently, the appeal in hand is accepted, the impugned judgment is set aside and the appellant is acquitted of the charge, while extending him the benefit of doubt. He is in custody, hence it is directed that be leased forthwith, if is not required to be detained in any other case. The disposal of the case property shall be as directed by the learned Trial Court, in the impugned judgment.

9. As a consequence, the Crl. Revision No. 199/2016, for enhancement of sentence of the appellant Sher Afzal, filed by the complainant (Rashid Mahmood), for the foregoing reasons, is without substance, hence dismissed. JK/S-43/L Appeal accepted.