2022 P Cr (PLP)

SAHIBZADA ASADULLAH, J.

This judgment shall dispose of Cr. A. No.25-D of 2012 titled 'Allah Wasaya and another v. The State and another' and Cr. R. No.11-D of 2012, titled `Zulfiqar v. Allah Wasaya' as both the matters have arisen from one and same judgment dated 15.5.2012, rendered by learned Additional Sessions Judge-V, D.I. Khan, in case FIR No.240 dated 10.11.2010, registered under sections 302/34, P.P.C. of Police Station Paroa, District D.I. Khan, whereby the appellants were convicted under section 302(b) read with section 34, P.P.C. and sentenced to life imprisonment and to pay Rs.1,00,000/- (rupees one lac) each as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C., failing which to undergo further six months rigorous imprisonment, however, benefit of section 382-B, Cr.P.C. was extended to them.

2. The prosecution story as divulged from the FIR Ex. PA, registered on the basis of murasila Ex. PA/1, in brief, is that on 10.11.2020 at 9:30 a.m, complainant Zulfiqar (PW-5) reported the matter to the local police at Kacha Path leading towards Middle School Khana Sharif, near the house of one Amanullah, to the effect that his brother Hafizullah alias Fidu, employed as Peon in Middle School Male, as usual, was on his way to the school along with handcart having plastic drums for taking water while on the same way complainant was coming from his house to the village. It was about 7:45 a.m. when Hafizullah reached near the house of Amanullah, where accused Allah Wasaya and Sanaullah sons of Yasin, duly armed with Kalashnikovs, while accused Ehsanullah son of Koro, armed with pistol were present and when brother of the complainant reached near them, all the three accused started firing at him with their respective weapons, as a result whereof, he got hit and fell to the ground. The accused decamped from the spot after commission of the occurrence. When the complainant attended his brother, by then he had succumbed to his injuries. Besides the complainant, the occurrence was stated to be witnessed by Khail ur Rehman, Asmatullah (PW-6) and Jehangir. Motive for the occurrence was stated to be previous blood-feud. Hence, the FIR (ibid).

3. After completion of investigation, complete challan was submitted against the accused to the trial Court where at the commencement of trial, the prosecution produced and examined as many as eight (8) witnesses, whereafter, accused were examined under section 342, Cr.P.C, wherein they denied the allegations and professed innocence, however, they did not wish to be examined on oath as required under section 340(2), Cr.P.C., however, they produced one Inayatullah as DW-l in their defence. On conclusion of trial, learned trial Court, convicted the appellant and sentenced the appellant vide judgment impugned herein.

4. It is pertinent to mention here that during pendency of this appeal, convict/appellant Ehsanullah escaped/taken away from the jail and in this respect statement of Superintendent Central Jail, D.I. Khan was recorded on 30.10.2013, and in the light of above, appeal and criminal revision to the extent of convict Ehsanullah were adjourned sine die, while appellant Allah Wasaya was acquitted by this Court vide judgment dated 03.4.2018. Subsequently, the appellant Ehsanullah was arrested, who filed Cr.M. No.33-D of 2019, which was accepted vide order dated 14.9.2020 and the appeal to his extent was restored.

5. Heard. Record perused.

6. It is the case of prosecution that on the fateful day, brother of the complainant namely Hafizullah alias Fidu, who was employed as Peon in Middle School Male, as usual, was on his way to the school along with handcart having plastic drums for taking water while on the same way complainant was coming from his house to the village. It was about 7:45 a.m. when Hafizullah reached near the house of Amanullah, where accused Allah Wasaya and Sanaullah sons of Yasin, duly armed with Kalashnikovs, while accused Ehsanullah son of Koro, armed with pistol were present and when brother of the complainant reached near them, all the three accused started firing at him with their respective weapons, as a result whereof, he got hit, fell to the ground and succumbed to his injuries. While going through the file, it transpires that the occurrence in the present case allegedly took place on 10.11.2010 at 7:45 a.m, whereas the matter was reported at the spot by complainant (PW-5) at 9:30 a.m. i.e. with a delay of almost one hour and forty-five minutes. The record tells that right from the time of occurrence till the time when the matter was reported, no effort was made to shift the dead body of deceased to the hospital or to the police station, which is unbelievable to an ordinary prudence, rather same creates serious doubt regarding presence of complainant (PW-5) and Asmatullah (PW-6) on the spot at the time of occurrence.

7. The ocular account in the present case was furnished by complainant PW-5 and Asmatullah PW-6. The complainant while appearing in the witness box narrated the incident, however, same is belied by the site plan, for the reason that if he was present on the spot, then keeping in view the alleged motive, he would not have spared by the assailants as no one dare to create evidence against him. Besides, this witness has never stated the purpose of his presence on the spot at the relevant time. It is pertinent to mention that in the site plan neither house of the deceased nor that of the complainant has been mentioned. For the sake of argument, if the complainant was accompanying the deceased at the relevant time, then he has been shown at point No.2, while the deceased at point No.1 in the site plan and he was accompanying his brother towards Middle School, but according to the site plan, he had already crossed the accused and was at a distance of 50 paces from the deceased when the occurrence allegedly took place. The conduct of complainant and PWs coupled with report made on the spot leads us nowhere but to hold that it was an unseen occurrence and the witnesses were not present at the time of occurrence. Moreso, the alleged eye-witness Asmatullah has not named the complainant in his Court statement and also denied his examination by police under section 161, Cr.P.C. In view of the above, presence of both the PWs on the spot at the time of occurrence is shrouded in mystery, therefore, same cannot be relied upon for sustaining conviction on a capital charge.

8. Another piece of evidence against the appellant is that he confessed his guilt before the Judicial Magistrate and to this effect his confessional statement was recorded by Akbar Ali, Judicial Magistrate (PW-7). While going through the statement of this witness, it is clear that accused was not medically examined before producing before the Judicial Magistrate. PW-7 also admitted that he did not direct the medical examination of the accused nor did he examine his body. Needless to say that the Investigating Officer PW-8 admitted in his cross-examination that after producing both the accused before the Judicial Magistrate, their handcuffs were removed on his direction and he was also sent out of the Court, meaning thereby that confession of one accused was recorded in the presence of other accused. The apex Court in the case titled Ghani Bakhsh v. The State (PLD 1975 SC 187) held that:- "In the instant case, however we find that the mode and method of recording the confession of one accused in the presence of the other casts serious doubt on its voluntariness which is the basic requirement of law as also for its appeal to the judicial conscience. The whole object of legal and judicial insistence on the meticulous observance of all the necessary formalities and precautions laid down with minute particularity is to ensure that the confessional statement should be absolutely free from the slightest tinge oil taint of extraneous influence such as threat, promise or inducement and the Courts are placed under an obligation to affirmatively satisfy themselves that it is free and voluntary". In this respect case titled Muhammad Ismail v. The State (2017 SCMR 713) can well be referred.

9. The record further transpires that in his statement under section 342, Cr.P.C. the appellant while answering question No.7, stated that, "The alleged confession is the result of police torture. It is not voluntary. Moreover, the confessional statement is not in accordance with the settled principle of law and dictum laid down by the apex Court. I was produced to the local police by one Inayat Khan son of Bahawal Khan resident of Lunda Sharif on 23.11.2010 and I was retained in the P.S without any legal and lawful justification". In this regard, Inayatullah was produced as DW-1, who stated that on 23.11.2010, the appellant came and asked him to surrender before the local police and on the same day he took him to the police station and surrendered him before the police. In such view of the matter, the confessional statement of the appellant cannot be relied upon for safe dispensation of justice.

10. The record further transpires that six empties of 7.62 bore and an empty of .30 bore were recovered from the spot, while one .30 bore pistol with fit magazine containing five rounds of .30 bore were recovered from possession of the appellant. Needless to say that the empties were recovered on the day of occurrence i.e. 10.11.2010, while the alleged weapon of offence was recovered from the appellant on 26.11.2010, which were sent together to the Forensic Science Laboratory, which is not a safe course and it smacks of foul play on the part of Investigating Officer for the reason that till recovery of weapon the empties remained in their custody in police station. It is well settled that law requires that empty recovered from the spot should be sent to the laboratory without any delay, failing which such recovery was not free from doubt and could not be used against the accused.

11. It is pertinent to mention that co-accused Allah Wasaya and the present appellant Ehsanullah have faced a joint trial and vide same impugned judgment they were convicted. Both the accused have filed instant Cr. A. No.25-D/2012, while during pendency of this appeal on 29.07.2013, a group of miscreants attacked on Central Jail, D.I. Khan, and the appellant Ehsanullah escaped/taken away from the jail, so the instant appeal to his extent was adjourned sine die, while the appeal to the extent of co-accused Allah Wasaya was decided vide judgment dated 03.04.2018, whereby this court disbelieved the evidence to his extent, and by extending benefit of doubt acquitted the co-accused Allah Wasaya. It has been settled that once the evidence produced against one of the co-accused is disbelieved, the same evidence cannot be believed against the accused having same role, unless there is corroborative evidence to distinguish the case of accused from that of acquitted co-accused. The present accused/ appellant Ihsanullah also having same role, and there is no corroborative evidence to distinguish the case of present appellant from that of acquitted accused Allah Wasaya, so the accused/appellant deserves to be treated alike. Reliance is placed on case titled "Muhammad Idrees and another v. The State and others (2021 SCMR 612), which read as: "We further note that the ocular account of (PW-9) and (PW-10) has been disbelieved by the High Court, which we find was rightly disbelieved, against Muhammad Saleem who was alleged to have played a similar role in the occurrence, and he stands acquitted. Therefore, the same evidence cannot be relied upon to convict Muhammad Idrees, unless there is an independent corroboration of it to the extent of his involvement in commission of the offence. Recovery being inconsequential there is no corroborative evidence to distinguish the case of the petitioner from that of the acquitted accused."

12. There is no second option that criminal justice always lays emphasis on the quality of evidence which must be of first degree and sufficient enough to dispel the apprehension of the Court with regard to the implication of innocent persons along with guilty one by the prosecution, otherwise, the golden principle of justice would come into play that even a single doubt if found reasonable would be sufficient to acquit the accused, giving him/them benefit of doubt because bundle of doubts are not required to extend the legal benefit to the accused. Ref: "Riaz Masih alias Mithoo v. State" (1995 SCMR 1730).

13. After assessing the entire evidence on file, we reach to irresistible conclusion that the prosecution has failed to prove its case against the appellant beyond reasonable doubt and its benefit is extended to him. Resultantly, we accept the appeal, set aside the conviction and sentence recorded by learned trial Court, and acquit him from the charges levelled against him in the present case. He be released forthwith if not required to be detained in any other case. Since the criminal appeal has been accepted, therefore, the Criminal Revision bearing Cr. R. No.11-D/2012, for enhancement of sentence stands dismissed for having become infructuous.

14. Above are the detailed reasons of our short order of even date. JK/223/P Appeal allowed.