2006 PLP 622 (YLR)

IJAZ-UL-HASSAN KHAN, J.--This judgment will dispose of Criminal Appeal No.566 of 2005 and Criminal Revision No.156 of 2005, which have been directed against the judgment dated 27-7-2005, passed by learned 'Sessions Judge/Zilla Qazi, Malakand, whereby appellant Qaiser Shah son of Shehenshah, aged about 19 years, resident of Deh 'Kotkai', Levy Post Khar Malakand, having been found guilty of committing 'Qatl-i-Khata' of his co-villager Muhammad Azam Khan, by firing, was convicted under section 318, P.P.C. and sentenced to suffer five years' R.I. and to pay 'Diyat' equivalent to 30,630 grams silver or the value thereof, to legal heirs of the deceased or stay in jail till its payment. The benefit of section 382-B, Cr. P. C. , was, however, extended in favour of the appellant.

2. Aggrieved of the said judgment, appellant Qiaser Shah has preferred instant appeal challenging his conviction and sentence whereas complainant Abdul Karim has filed criminal revision, seeking enhancement in sentence. Since the appeal and revision have arisen out of the same judgment, therefore, these are being disposed of by this common judgment.

3. The prosecution story in brief is, that on the fateful day i.e. 30-10-2004, at about 13.45 p.m., complainant Abdul Karim (P.W.3), uncle of Muhammad Azam deceased, was present in his house in 'Kotkai Khar', when he heard the report of fire-shot. The complainant came out of the house and found his nephew lying injured in the street. With the help of co-villagers, the victim was removed to hospital but he succumbed to the injuries and expired in the way. Unknown assailant was charged for the murder of the deceased. The complainant expressed his ignorance about the motive leading to the incident.

4. Post Commander Birader Khan (P.W.6), on receiving information regarding an incident of firing in Mohallah 'Kotkai' Khar and arrival of an injured to Civil Hospital, Batkhela, rushed to the hospital and found a dead body in the hospital. He recorded the report (Exh.P.A A) at the instance of complainant Abdul Karim, (P.W.3) and sent the same to Police Station, where it was incorporated into F.I.R. (Exh.P.A) by Moharrir Tahir Room (P.W.1). He prepared the inquest report and injury sheet of the deceased and handed over the dead body to the doctor. He proceeded to the spot and prepared site-plan Exh.P.B. at the pointation of eye-witnesses. He recovered blood-stained earth from the spot, vide recovery memo. Exh.P.W.3/4. He also recovered one empty of 7.62 bore from the spot vide recovery memo. Exh.P.W.11/4. Vide recovery memo. Exh. P. W.3/2, he took into possession last-worn clothes of the deceased, produced to him by the complainant, and sent the same to Forensic Science Laboratory, Peshawar. On 31-10-2004, supplementary statement of complainant and on 8-11-2004, statements of P.Ws. Saeed Ahmad, Attaullah Bukhari and Abdur Rauf were recorded under section 164, Cr.P.C., in which they charged the appellant for commission of crime. The appellant was arrested the same day. After completion of investigation in the manner described above, challan was submitted in Court.

5. At the commencement of the trial, the learned trial Court framed a charge for an offence under section 302, P.P.C. against the appellant, to which he pleaded not guilty and claimed trial. During the trial, the prosecution produced seven witnesses in support of its case against the appellant. After close of prosecution side, the statement of appellant under section 342(2), Cr.P.C. was recorded, who denied the allegation of charge against him and pleaded that he is innocent and had falsely been implicated. He did not make any statement in defence nor did he produce any evidence in his defence in order to rebut the allegations against him.

6. Mr. Alamzeb Khan, learned trial Judge acting on the material available on the record come to the conclusion that appellant was responsible for 'Qatl-i-Khata' of Muhammad Azam deceased. He convicted and sentenced the appellant as mentioned and detailed above.

7. Mr. Khawaja Muhammad Gara, Advocate for the appellant, in support of appeal contended that the prosecution has not been able to prove its case against the appellant for that matter, the impugned judgment of the trial Judge is erroneous and is the outcome of misreading and non-reading of the evidence; that the trial Court has not appreciated the prosecution evidence in its correct legal and factual perspective which has caused grave miscarriage of justice; that the appellant had no motive to commit the delict, the one introduced by the prosecution at a later stage is false, fabricated and unproven; that there is absolutely no evidence, whatsoever regarding the commission of homicide or 'Qatl-i-Khata' by the appellant; that trial Court has acted on surmises and its finding regarding the culpability of the appellant is contrary to material on record and that the conduct of the appellant by not going into voluntary exile, also, points to his innocence. The learned counsel also assailed the statements of P.Ws. on the ground that in context of previous enmity between the appellant and the deceased, they assumed the character of an interested witness and as such their testimony cannot be accepted without independent unimpeachable corroborative evidence, which according to the learned counsel, is lacking in the instant case.

8. Pir Liaqat Ali Shah, learned Additional Advocate-General assisted by Qazi Zakiuddin, Advocate, learned counsel for the complainant, bitterly criticized the impugned judgment, maintaining that sufficient material was available on the file to prove that appellant had a hand in the affair and he was responsible for committing 'Qatl-i-Amd of the deceased and as such the learned trial Judge had no reason to take a contrary view and convict and sentence the appellant for 'Qatl-i-Khata' of the deceased. The learned counsel reiterated that had there been any enmity or reason to falsely implicate the appellant, there was nothing to prevent the complainant to specifically name the appellant in the F.I.R. There is not an iota of evidence available on the file, which may tend to show that there was a background of enmity between the parties, which might have actuated the complainant to falsely implicate the appellant. Having no previous animus, hostility or ill-will with the accused, there was no rhyme or reason why the complainant and P.Ws. should trump up a false case against the appellant. The learned counsel added that all the eye-witnesses have given the identical sequences of events which occurred on the day of incident. They fully corroborated each other as to the day, time and place of occurrence.

9. We have given mature consideration to the arguments of learned counsel for the parties. We have also gone through the record of the case with their assistance.

10. It has been observed that initially it was a blind F.I.R. and did not contain names of any of the accused person. However, subsequently on 31-10-2004, supplementary statement of Abdul Karim complainant and on 8-11-2004 statements of Saeed Ahmad, Attaullah Bukhari and Abdur Rauf P.Ws. were recorded under section 164, Cr.P.C, in which they specifically charged the appellant for the crime in question.

11. Having considered the arguments of the learned counsel for the parties, we find ourselves in agreement with the learned counsel for the appellant that trial Court has not appreciated the prosecution evidence in its correct legal and factual perspective. The appellant's implication in the case by the complainant at a belated stage is the figment of his imagination. It is difficult to believe that close relative of the deceased allegedly present on the spot, witnessing the occurrence would come forward and claim to be eye-witnesses after lapse of 7/8 days altogether. There is absolutely no evidence regarding the commission of homicide or 'Qatl-i-Khata' by the appellant. The trial Court has acted on surmises and its findings regarding the culpability of the appellant is contrary to material on record. The trial Judge has rejected the alleged ocular testimony himself.

12. It is well-settled provision of law that where the prosecution alleges a particular motive in the case against the accused for committing such an offence, the same is to be proved by it, and further that if such a motive is not so proved by the prosecution, then such circumstance adversely affects the case of the prosecution, benefit whereof shall go to the accused, more particularly in a case where the incident of the case is based on such a motive and giving a reasonable presumption that had there been no such motive, then no incident could have had taken place. No direct evidence is produced by the prosecution to prove any such events having had taken place immediately before the occurrence. The motive has not been satisfactorily proved.

13. The next piece of evidence is the medical evidence furnished by Dr. Abdul Karim (P.W.7), who on 30-10-2004 at 2-00 p.m. examined the dead body of the deceased and found that skull was brusted and brain was out of skull. Cause of death was found fire-arm injury to brain into skull cavity due to shock and haemorrhage. Medical evidence by itself does not establish either the identity or the complicity of the accused in the crime. It is only when involvement of an accused in the crime is established through other evidence beyond reasonable doubt that further corroboration can be sought with the help of the medical evidence. The medical evidence can at best be used to support the ocular testimony or any other incriminatory evidence of the type and for no other purpose. The ocular testimony in this case having been found not confidence-inspiring or with intrinsic worth, the same, therefore, could not be used to support the same.

14. It is one of the settled provisions of law that in order to do complete justice and to ensure that real culprit may not escape legal punishment, the grain is to be sifted from chaff. But if it is found that it could not be possible to sift the grain from the chaff and the testimony of a witness is not confidence-inspiring, then it will be unsafe to record the conviction. Conviction must be based on unimpeachable evidence and certainty of guilt and that any doubt arising in the prosecution case must be resolved in favour of the accused. Muhammad Khan and others v. The State 1990 SCMR 1220.

15. In view of the above discussion we find that the prosecution evidence has come through interested, partisan and related witnesses which are not corroborated by other evidence. The impugned judgment is based on incorrect appreciation and appraisement of evidence which was full of improbabilities and incoherencies. When an accused person is tried there has to be evidence of unimpeachable character which must lead to the only inference that the accused is found guilty beyond reasonable doubt. Needless to emphasize that in case of like nature based on the evidence of interested witnesses the prosecution is required to produce independent corroborative evidence, direct or circumstantial before reliance can be placed on the deposition of such interested witnesses. In the present case we do not find any independent corroboration of unimpeachable character. We are of the considered opinion that the case trumped up against the appellant is destitute of any valid foundation and there is not even a shred of valid piece of evidence in support of the prosecution version.

16. Under such circumstances and situation it would not be safe to sustain conviction of the appellant. The prosecution has failed to prove its case beyond reasonable doubt. The appeal is, therefore, allowed and the sentence awarded to the appellant is set aside. Above are the reasons of our short order dated 24-10-2005, whereby we had accepted the appeal, set aside the impugned judgment and acquitted the appellant of the charge of murder of Muhammad Azam deceased. Criminal Revision No.156 of 2005 stands automatically dismissed. H.B.T./518/P Appeal allowed.