2016 P Cr (PLP)

ASSADULLAH KHAN CHAMKANI, J.

Appellant Liban Shah stood trial on a murder charge before the learned Additional Sessions Judge,-III, Nowshera and at the conclusion of trial he was found guilty, resultantly, he was convicted under section 302(b), P.P.C. and sentenced to imprisonment for life and to pay Rs.11,00,000/- as compensation to LRs of deceased. He was further convicted and sentenced under section 13 of the Arms Ordinance, 1965, to undergo one year rigorous imprisonment and to pay a fine of Rs.1000/- and in default thereof to undergo 06 months' S.I. further. Benefit of section 382-B, Cr.P.C. was extended in his favour. However, the appellant was acquitted under section 324, P.P.C.

2. The prosecution case, as divulging from First Information Report, registered on the basis of Murasila report is that on the fateful day, Muhammad Jamal Khan ASI (PW.8) along with other police contingent, during their patrol duty on Cherat Road Pabbi Station Bazaar, while noticing a person having a pistol in his hand, started chasing him. They also conveyed message via Wireless to Constable Barkat Ali and Abid of the Rider Squad, as a consequence whereof, they attracted to the spot and apprehended him along with .30 bore pistol bearing No.FF-3304, having two live rounds of the same bore. In the meantime, Muhammad Jamal Khan ASI (PW.8), came to know that the aforesaid person has committed murder in Station Bazaar Cherat Road, so he attracted there and found the dead body of one Akbar Zaman, where his brother Qaisar Zaman (PW.5) present reported him that on that day i.e. 18.05.2009, in order to pick his mother, coming from Karachi, he along with his brother Akbar Zaman deceased and uncle Azam Sher, were on the way to Ring road Peshawar, and when deboarded from a Bus in Station Bazaar, accused Liban Shah (appellant/convict), present there, on sighting them, opened fire at them, with which his brother Akbar Zaman was hit and died on the spot, while he and PW Azam Sher, luckily remained unscathed. Motive behind the occurrence is stated to be that accused was suspecting Akhtar Zaman, brother of the deceased, for having illicit relation with his wife. In addition to complainant, the occurrence is stated to have witnessed by his uncle Azam Sher (PW.6).

3. Dr. Rahat Javed CMO Civil Hospital Pabbi (PW.2) conducted autopsy on the dead body of the deceased at 8.30 a.m. and found the following injuries on his person:- i. Firearm entry wound of 1 x 1 cm in size on back of chest 2 cm lateral to the left of sixth vertebral. ii. A firearm exit wound about 2 x 2 cm in size on front of chest 4 cm above the epi gastricnotch 2 cm later to sternum. Probable time between injury and death has been given as instantaneous while between death and post mortem to be approximately 01 hour. According to his opinion the cause of death was due to injuries to vital organs i.e. heart, lung caused by firearm.

4. Muhammad Israr ASI (PW.11) conducted investigation in the case, who proceeded to the spot, prepared site plan Exh.PB on the pointation of the complainant. During spot inspection he secured bloodstained earth from the place of the deceased and took into possession one empty of .30 bore pistol and sealed the same in parcel. He also took into possession the last worn bloodstained clothes of the deceased and sent the pistol and empty along with 5 live rounds of the same bore to Arms Expert for analysis.

5. On completion of investigation, challan was submitted against the accused before the Trial court, where he was charge sheeted, to which he pleaded not guilty and claimed trial. In order to prove guilt of the accused/appellant, prosecution examined eleven witnesses. After closure of the prosecution evidence, statement of the accused under section 342, Cr.P.C. was recorded wherein he denied the prosecution allegations and professed his innocence. He, however, neither wished to be examined on oath nor opted to produce evidence in defence. On conclusion of trial, the learned trial court, after hearing both the sides, convicted and sentenced the appellant/accused, as referred above. Hence, this appeal.

6. Learned counsel for the appellant vehemently contended that both the alleged eye-witnesses have not established their presence on the spot at the time of alleged incident and the accused/appellant has been implicated in the case on mere suspicions; that when the accused was suspecting brother of the deceased for illicit relation with his wife, then there was no reason for him to commit the murder of the deceased against whom he had no motive; that the trial court has given self clashing findings and has drawn unfair conclusion from the evidence on record as on one hand, it has disbelieved the charge of prosecution against the accused qua attempting at the lives of the eyewitnesses and has acquitted the accused from the said charge under section 324, P.P.C., while on the other hand, on the same evidence, the appellant has been held guilty of the murder charge; that the alleged incident has taken place in busy bazaar but no independent and impartial person has been cited as witness to the occurrence or recovery from the spot which creates considerable doubt in truthfulness of the prosecution story; that medical evidence and the site plan negates the ocular account; that no independent person has been cited as witness to recovery memo qua .30 bore pistol allegedly recovered from possession of the accused despite that the accused has been shown arrested in thickly populated area/Bazaar, which is in violation of section 103, Cr.P.C. hence, cannot be relied upon; that recovery of crime empty and weapon of offence coupled with matching report being a corroborative piece of evidence would not by itself be sufficient for conviction of the accused when the ocular evidence has been discarded; while on the other hand, the same being sent to the FSL with a delay of 18 days has lost its evidentiary value, if any; that the prosecution case is suffering from material contradictions and discrepancies creating serious doubts in the prosecution story, benefit of which is to be extended to the accused not as a matter of grace but as a matter of right hence, the impugned judgment be reversed and the appellant be acquitted.

7. Conversely, learned counsel for the respondent while controverting the arguments of the learned counsel for the appellant contended that it is a day light occurrence and the accused after committing the murder of the deceased has been arrested red handed by the local police along with crime pistol, which has been sent to the FSL along with crime empties and the positive FSL report substantiate the prosecution story; that both the eye-witnesses have furnished the truthful account of the occurrence and the defence has failed to create any dent in their testimony; that medical evidence, site plan and recovery of blood from the spot, crime empty and the positive FSL reports further supplement the prosecution version. He argued that the prosecution has proved the guilt of the appellant/accused up to the hilt through cogent and confidence inspiring evidence and the learned trial court has rightly held him guilty of the offence, thus, sought dismissal of the appeal.

8. We have considered the exhaustive submissions of the learned counsel for the parties and perused the record with their able assistance.

9. Before dilating upon the ocular account of the incident, we would like to take first the motive which allegedly became the sole reason of this unfortunate tragedy. Complainant Qaisar Zaman (PW.5) in his report as well as in his statement and similarly, PW Azam Sher, has given the motive that the accused was suspecting his brother Akhtar Zaman for having illicit relation with his wife. So if the accused had a direct motive with brother of deceased and complainant, namely, Akhtar Zaman, then why the deceased was done to death and not said Akhtar Zaman and similarly, why not the complainant who too is the brother of said Akhtar Zaman. The prosecution has not brought an iota of evidence to justifiably answer this question, thus, the motive alleged by the prosecution has not been proved. No doubt, prosecution is not called upon in every case to establish the motive, yet once the motive is set up by the prosecution and then fails to prove the same; it would be the prosecution to suffer the consequences and not the defence.

10. Now we would take the ocular account and would test it on the natural probabilities. It is settled by the apex court in case titled, "Noor Muhammad v. The State and another" (2010 SCMR 97), that when motive is alleged but not proved, then ocular evidence is required to be scrutinized with great caution. The ocular account has been furnished by Qaisar Zaman (PW.5) and Azam Sher (PW.6), i.e. real brother and uncle of the deceased, respectively. True that there is no gainsaying that the evidence furnished by interested witnesses ordinarily cannot be discarded merely for the reasons that they had relationship with the deceased. However, for the safe administration of justice it becomes duty of the court to look for corroboration of such evidence from independent sources with a view to explore truth for purpose of reaching just conclusion. Evidence of interested witnesses which does not get even an iota of independent evidence to support their version would not be reliable in support of prosecution case. It is settled law that the eye-witnesses who claim their presence at the spot must satisfy the mind of the court through some physical circumstances or through some corroborative evidence in support of their presence at the spot.

11. It is consistent stand of the two eye-witnesses that on the fateful day, they along with deceased Akbar Zaman, were going to Ring road Peshawar to pick mother of complainant, coming from Karachi, and when they deboarded from a Bus at Station Bazaar Pabbi, accused Liban Shah, already present there duly armed with pistol opened fire at them, as a result the deceased was hit and died on the spot. In his cross-examination he deposed that the accused facing trial was standing towards the East from the Bus; that first his uncle PW Azam Sher deboarded from the Bus followed by the deceased and then complainant and when they crossed the road, the accused fired at them. At this juncture we would refer to the site plan Exh.PB, prepared at the pointation of complainant, wherein at point No.1 deceased Akbar Zaman, at point No.2 accused while complainant Qaisar Zaman and PW Azam Sher have been shown at points Nos.3 and 4, respectively. The distance between the deceased and the accused has been shown 3 paces, between the complainant and accused 2 paces, and inter-se the accused and PW Sher Azam as 3 paces. PW Sher Azam has been shown ahead at point No.4, followed by the deceased at point No.1 and then complainant at point No.3. As alleged by the complainant that when they crossed the road the accused fired at them. Keeping in juxtaposition the places of the PWs, that of the deceased and the accused as shown in the site plan, with the statement of the complainant, the accused should have been shown at the end i.e. after the complainant, but such is not the case in the site plan. Rather the place allotted to the accused fails in front of the complainant in close proximity of the deceased towards West and not towards the South as stated by complainant. Keeping in view the presence of the deceased at point No.1 and that of the accused at point No.2, the deceased ought to have received injury from his left side but according to his autopsy report, he sustained a solitary injury on back of chest with corresponding exit. Complainant further deposed in his cross-examination that the accused fired about 3/4 shots. As stated earlier the deceased has sustained only solitary injury despite the fact that he has been shown in close proximity with the accused at a distance of 3 paces. It is not the case of the prosecution that one shot proved fatal while rest un-fatal. Similarly, it is also not the case of the prosecution that there was any hindrance inter se the accused and the deceased by virtue of which rest of the shots proved ineffective. Moreso, the complainant has not stated in his report about the number of shots so mentioning of number of shots in his statement amounts to dishonest improvement. Only single empty has been recovered from the spot which negates the stance of the complainant. It is not the case of the prosecution that some body removed the empties from the spot. Rather it is the case of the prosecution that after arrest of the accused by the police, he was brought to the crime venue where the complainant and PW Azam Sher were present and there the complainant reported the occurrence, which means that right from inception of the episode, till arrival of the police the PWs remained on the spot with the deceased but even then they have not furnished any justifiable reason for the empties of the shots allegedly fired by the accused. The medical officer has not observed any charring and blackening on the wound of the deceased. If the deceased was at a distance of 3 paces from the accused, as alleged by the eye-witnesses, there should have been present charring or blacking marks, because if one fires on his target he would definitely move his hand forward along with the gun/weapon, till last extent, particularly, in case of pistol, and in this way a distance of about 2 feet would be covered. The deceased has been shown at a distance of 3 paces from the accused. So the moment the accused was opening fire at him, he would have moved his hand along with gun and in this way the barrel of the pistol would have been more closer to the deceased, decreasing the distance of 3 paces, and in such circumstances, there should have been present charring marks on the wound of the deceased, but such is not the case herein, which negates the ocular account. Besides, neither the complainant, who is brother of the deceased nor PW Azam Sher, who is uncle of the deceased have made any effort to chase the accused or to caught hold him at the time of incident, nevertheless he was in close proximity of few paces with them. This unnatural conduct of the PWs cast further doubt in the prosecution case, keeping in view the norms of the society, particularly this part of the country, where in such like situation, a brother can sacrify his life for the sake/life of his other brother. Thus, the attitude of both the PWs like that of silent spectator is not appealable to our mind. None of them has received a solitary injury despite that they too, were at the mercy of the accused in close distance. Above all, if the accused had motive with Akhtar Zaman, brother of complainant and deceased, why the deceased was made target and not the complainant, he too, is the brother of said Akhtar Zaman. Dr. Rahat Javed (PW.2), who conducted post-mortem examination of the deceased deposed that on 18.05.2009 at 8.30 a.m. he conducted autopsy on the dead body of the deceased, which totally runs contradictory with the statement of complainant Qaisar Zaman. He deposed in his cross-examination that they reached the hospital at 08.45 a.m. after report, for post-mortem examination. So, if the dead body of the deceased was taken to the hospital at 08.45 a.m. then how the doctor conducted post mortem at 8.30 a.m.

12. Azam Sher the other alleged eye-witness of the occurrence has been examined as PW.6. This witness in his cross-examination has totally denied the stance of the complainant as well as the site plan and the medical evidence, by deposing that they were proceeding towards main GT road after deboarding from the Bus and when they crossed the road the accused started firing at them from front side. He further deposed that they told the police officials that the accused fired at them from front side and show the position of accused from front side. The stance of this PW does not find support from the medical evidence, as according to post-mortem report the deceased has received solitary injury, and that too, from back and not front. The occurrence has taken place in busy Bazaar and both the alleged eye-witnesses as well as Investigating Officer of the case have admitted presence of the people and shopkeepers on the spot but none from them has been cited as an eye-witness or witness to any recovery from the spot. The ocular account of both the witnesses is suffering from material contradiction which is in negation with the medical evidence as well as the site plan, creating serious doubts about their presence on the spot at the relevant time of the incident. The non-availability of both the eye-witnesses can also be gathered from the inquest report of the deceased, wherein none of them has been cited as identifier of the dead body. Had they been present with the deceased and shifted his dead body to the hospital, they should have been the first persons to identify the deceased before the doctor. This aspect of the case manifest that they were not present with the deceased at the time of incident and later on, on getting information about the incident they reached hospital and became eye-witnesses of the occurrence, therefore, their evidence cannot be believed.

13. Jamal Khan SI (PW.8), who allegedly arrested the accused along with crime pistol has been examined as PW.8. In his examination in chief he reiterated the contents of report but in his cross-examination he while replying to certain questions of the defence has made the entire story of the arrest of the accused and recovery of pistol doubtful. He admitted overwriting in the murasila over digit 8 i.e. the time of incident, which shows that it has been converted from 6 to

8. He further admits that in the contents of murasila qua recovered pistol, initially it was written that pistol was without number. He explained that it was due to mistake. He further admits that it is correct that the number of the pistol was written with different pen in the murasila. He deposed that the distance between the place of occurrence and arrest of the accused is about 1/2 Kilometer. He admitted that he had not heard the report of fire shots, which does not appeal to mind because from a distance of 1 or 2 Kilometer one can easily heard the report of fire shots. He went on to say that people were present on the spot who told him that the accused committed the murder. But none from them has been cited as witness or produced before the court. He admitted that he has not drafted the murasila or prepared the recovery memo where the accused was arrested. This witness has also denied the time of post-mortem report of the deceased by deposing that he reached the crime spot at 8.30 a.m. and consumed 20/25 minutes on the spot while completing the proceedings. In such circumstances, the post-mortem of the deceased should have been conducted at 8.55 or 8.50 a.m. which is in negation of autopsy report of the deceased. PW.8 first denied the availability of private person at the place of arrest of the accused and then deposed that no body from the public dare to become a witness against the accused to earn enmity. Further says that as no one becomes a witness to the recovery memo so he did not try to ask any independent person in this regard. Barkat Ali the police official of the Rider Squad who allegedly was informed through wireless has been examined as PW.10. He deposed that he in his presence no site plan or recovery memo was prepared. In light of the statement of Muhammad Jamal Khan (PW.8) and Barkat Ali, coupled with non-compliance of provisions of section 103, Cr.P.C. the recovery of the pistol cannot be held free from doubts and it can be safely concluded that the same has been planted just to strengthen the prosecution case.

14. Yet there is another striking feature of the case that the Trial Court has given self contradictory findings and thus reached to an unfair conclusion from the evidence. The ocular account of the alleged eyewitnesses has been disbelieved to the extent of charge of the prosecution against the accused of attempting at the lives of the eye-witnesses and resultantly, acquitted the accused/appellant under section 324, P.P.C., which gives fatal blow to the prosecution case, as the testimony of the two alleged eye-witnesses in this regard has been disbelieved which in other words lead us to the conclusion that while disbelieving this part of the story, the presence of the alleged eye-witnesses on the spot stands negated.

15. The factum of murder of the deceased at the spot with firearm cannot be denied, in light of recovery of bloodstained earth, bloodstained last worn clothes of the deceased coupled with autopsy report, but at the same time this fact cannot be ignored that none of the alleged eye-witnesses has established their presence with the deceased at the relevant time of the incident as such their testimony has been disbelieved. So far as recovery of crime empty and crime weapon with matching report of the FSL is concerned, on one hand, as stated earlier the said recovery is in violation of section 103, Cr.P.C. while on the other, it is only a corroborative piece of evidence which by itself would not be sufficient to convict the accused in absence of substantive evidence. Guidance in this regard can be derived from case titled, "Ijaz Ahmed v. State" (1997 SCMR 1279). It has been held by the apex court in Asadullah's case (PLD 1971 SC 541) that corroborative evidence is meant to test the veracity of ocular evidence. Both corroborative and ocular testimony is to be read together and not in isolation. In the case of Saifullah v. The State (1985 SCMR 410), it has been held that when there is no eyewitness to be relied upon, then there is nothing which can be corroborated by the recovery. In this case, we have already discarded the ocular testimony, as such there is no substantive piece of evidence which requires to be corroborated through the recoveries. Thus, the recoveries in the present circumstances of the case having no weight cannot advance the case of the prosecution. Reliance can also be placed on case titled, "Noor Muhammad v. The State and another" (2010 SCMR 97), "Muhammad Ishaq v. Farman Shah" (PLD 1964 (W.P.) Peshawar 58). Besides, no doubt the FSL report regarding the crime empty and crime pistol, is in positive, but it appears from the FSL report that these articles have been sent to the FSL on 06.06.2009 and the occurrence has taken place on 18.05.2009 i.e. about 18 days delay. Thus, in light of such delay in dispatching the crime empty and pistol to the FSL, this piece of evidence being not creditable would be of no assistance to the prosecution against the accused. In Ali Sher's case (2008 SCMR 707), the Hon'ble apex court in case of 12 days delay in sending crime empties to the FSL has held as follow:- "The crime-empties having been allegedly found at the place of occurrence and having been retained for so long the police station and having been sent to the FSL along with the crime weapons and that also 12 days after the alleged weapons of offence had been allegedly recovered, destroys the evidentiary value of the said piece of evidence. These recoveries therefore, cannot offer any corroboration to the ocular testimony".

16. The nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as a matter of right and not of grace. It is cardinal principle of criminal administration of justice that it is not necessary that there should be circumstances creating doubt, but if there is a circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then he would be entitled to benefit of the same not as a matter of grace and concession but as a matter of right. Guidance in this regard can be derived from case titled, "Muhammad Akram v. The State" (2009 SCMR 230)" and "Tariq Pervez v. The State" (1995 SCMR 1345).

17. The learned trial Court has not adverted to these aspects of the case as discussed above and reached to a wrong conclusion by holding the appellant guilty of the offence, hence, the impugned judgment of the Trial court is not sustainable in the eye of law. Resultantly, this appeal was allowed and the appellant was acquitted. These are the reasons of our short order of even date which is reproduced below:- "For reasons to be recorded later on, this appeal is allowed. The conviction and sentence of the appellant, namely, Liban Shah son of Rahim Shah, awarded to him in case FIR No.403 dated 18.05.2009 under sections 302/324, P.P.C. read with section 13, A.O. Police Station Pabbi District Nowshera by learned Additional Sessions Judge-III, Nowshera vide impugned judgment and order dated 17.12.2011 are set aside and he is acquitted of the charges leveled against him. He be released forthwith if not required in any other case". HBT/315/P Appeal allowed.