P L D 2004 Peshawar 219 (PLP)

IJAZ-UL-HASSAN KHAN, J.

Accused-respondents .Adam Khan. Dilawar Khan sons of Dildar Khan, Nasrullah Khan son of Adam Khan and Usman Khan son of Dilawar Khan, all residents of village Jabukhel, District Lakki Marwat were tried by learned Additional Sessions Judge, Lakki Marwat for offences under sections 302/307/34, P.P.C. At the conclusion of trial, vide judgment dated 6-3-1999, accused-respondents were extended benefit of doubt and acquitted of the charges. Appellant Gul Raza, feeling aggrieved, has preferred Cr. Appeal No. 19 of 1999 challenging impugned judgment of acquittal. The appeal was admitted by this Court only to the extent of respondent Nasrullah Khan son of Adam Khan, resident of village Jabukhel, District Lakki Marwat.

2. The crime in question having taken place on 22-10-1988 at ' Digarvela' opposite to the house of complainant Gul Raza in the limits of village Jabukhel, the report (Exh.PA) was lodged the same day at 1800 hours by complainant at Police Station, Ghazni Khel, distant 7/8 kilometers from the scene of occurrence and it was reduced into writing by Nek Nawaz Khan (P.W.5), the then S.H.O., Police Station, Ghazni Khel.

3. The prosecution story as spelt out in the F.I.R is that on the day of occurrence, complainant Gul Raza his brother Abdul Raza (deceased), Mir Nawaz, Mustafa and Mst. Begum Jana wife of Abdul Raza were present in front of their house awaiting for verdict of the mediators regarding dispute over common passage. The mediators after consulting the complainant party, approached the accused party in the matter. In the meanwhile, accused Adam Khan, Dilawar Khan, Nasrullah and Usman armed with rifles appeared at the spot and resorted to firing. As a result, Abdul Raza was hit with the fire shot of Nasrullah and died at the spot. The complainant and his companions being empty-handed could not resist the attack. They took refuge in their house in order to save their lives. After accomplishing the mission, the accused made good their escape. A dispute over common passage was stated to be the motive leading to the turmoil.

4. After registration of the case, S.H.O. Nek Nawaz Khan (P.W.5) proceeded to the spot, prepared injury sheet (Exh. P. W .5/ 1) and inquest report (Exii.D.W5/2) of the deceased and dispatched the dead body to the hospital for post-mortem examination. He recovered blood stained earth from the place of deceased and sealed the same into a parcel vide memo. Exh.P.W.2/2. He also recovered one spent bullet in full size and another in deformed position and sealed the same into a parcel vide memo. Exh.P.W.2/3. On the following morning he prepared site plan Exh.PB at the instance of P.Ws and complainant. He took into possession blood stained clothes of the deceased, consisting of shirt, P-1, Banyan, P-2 alongwith the post-mortem documents brought from the hospital by Constable Mutab Khan and sealed the same into parcels vide recovery memo. Exh.P.W.2/1. He dispatched the blood stained earth and clothes of the deceased to F.S.L. Peshawar for chemical analysis and placed on record the report (Exh.P.W.5/3). Accused-respondent was arrested on 20-2-1993. On completion of investigation, challan was submitted in Court.

5. Dr. Ghulam Hussain, Medical Officer, D.H.Q. Hospital Bannu (P.W.10) on 23-10-1988 at 7-00 a.m. conducted post-mortem examination of deceased and found the following:-- (1) One entrance wound of fire grin of front of chest 3rd intercostals space level half inch away from the middle of sternum on right side size " x " x cavity deep. (2) One exit wound of fire-arm on back of chest right side at the level of tenth rib, liver is protruding out of the wound. In the opinion of doctor, the death occurred due to injury to vital organs i.e. heart, right lungs and liver causing hemorrhage, shock and death. Probable time between injury and death was within five minutes. Probable time between death and post-mortem was 10 to 14 hours.

6. The prosecution in order to prove its case produced as many as ten witnesses including the complainant, investigating officer, doctor arid other relevant persons. The respondents in their statements recorded under section 342,Cr.P.C. denied the prosecution allegations and claimed to have been falsely charged. Accused-respondent Nasrullah Khan also denied having remained fugitive from the law and stated that at the relevant time, he was in Karachi to earn his livelihood and that on coming to know about the charge he voluntarily appeared before the police. They neither examined themselves on oath as required under section 340(2), Cr.P.C., nor produced defence evidence. Said Akbar son of Muhammad Akbar and Khawaja Muhammad Khan son of Gul Akbar Khan were also examined as C.W.1 and C.W.2 respectively.

7. In support of the appeal, Mr.Gauhar Zaman Khan Kundi, Advocate for the appellant contended that significant part of the evidence on record was not considered and the other part of the other evidence has been misread and misinterpreted by the learned trial Judge, with the result that the conclusions recorded stand vitiated. The learned counsel took us through the evidence on record especially the testimony of eye-witnesses and reiterated that the testimony of these witnesses coupled with the medical evidence, the evidence of motive, the recoveries made from the spot during the course of investigation and prolonged from of the accused sufficiently established guilt of the accused. He reiterated that the order of acquittal recorded by the learned trial Judge in the circumstances of the case is perverse, arbitrary, fanciful and militates against the principles of law and justice. To augment the submissions, he placed reliance on Muhammad Ali v. Muhammad Yaqoob and 3 others 1998 SCMR 1814 and Mst. Mumtaz Begum v. Ghulam Farid 2003 SCMR 647.

8. Mr. Farooq Akhtar, Advocate appearing for the State adopted the arguments of learned counsel for the appellant and submitted that the impugned judgment of acquittal suffers from the vice of misreading and non-reading of evidence and is not sustainable in the eye of law.

9. Mr.Sultan Shehryar Khan Marwat, Advocate for the accused respondent, on the contrary, maintained that reasons given in totality provide sufficient justification for acquittal of the accused-respondent; that motive set up by the prosecution has not been proved and even otherwise, such motive was not sufficient for compelling the respondent in any manner to commit the crime; that learned trial Judge after appraisement of evidence has drawn reasonable and sound conclusion and this Court does not interfere merely for the reason that a different conclusion from that of the Court acquitting the accused cats possibly be drawn from the evidence. He also contended that learned trial 'Judge was quite justified to discard the tainted evidence of inimical witnesses which was not worth credence and pass d finding of acquittal in favour of the accused-respondent. To supplement the arguments, he placed reliance on the cases reported as Muhammad Khan and another v. The State 1999 SCMR 1220, Munir Ahmad alias Munni v. The State 2001 SCMR 56 and Zar Badshah v. Samiullah and another 1999 PCr.LJ 915 (Peshawar).

10. We have heard the learned counsel and have gone through the material available on record as well as impugned judgment.

11. We feel that sufficient material was available on the file to implicate the respondent with the guilt which has been ignored by the learned trial Judge without assigning any reasons, which has resulted in grave miscarriage of justice. It is pertinent to note that the respondent has been assigned specific role of firing at the deceased but prosecution evidence has been disbelieved against the respondent. The mere fact that the eye-witnesses were closely related and had slight bitterness with the respondent on account of dispute on common passage, is not sufficient to refuse to analyze and evaluate their evidence. The rule laid down in such cases is that testimony of such witnesses, if stands corroborated by the material appearing on record, can be relied upon. It is the uncorroborated testimony of relation-cum-inimical witnesses which is considered insufficient to warrant conviction. Quality and standard of evidence and not quantity is the yardstick to judge the case of the prosecution. It is well-settled proposition of law that test of credibility of a witness is neither his relationship or friendship with either side nor his mere present at the scene of offence at the time of occurrence, but it is the worth of his testimony valued on the established judicial norms which fairly proves or disproves his partiality or impartiality as a witness. We have noticed that the F.I.R. in this case had been lodged with reasonable promptitude and respondent Nasrullah Khan had been specifically nominated therein as the principal perpetrator who had caused death of Abdul Raza by firing. His presence at the spot cannot be disputed with any degree of seriousness. Complainant did not have any serious motivation to falsely implicate Nasrullah Khan respondent in a case of this nature. We also find ourselves in agreement with learned counsel for the appellant that the venue of occurrence being undisputed, learned trial Judge has gone hypertechnical to press this reason in support of his finding of acquittal. The scene of occurrence being a thoroughfare, the presence of the accused on spot is established through cogent, convincing and reliable evidence. It is also not denied that the site plans are prepared only to explain or to appreciate the evidence on record in the case. Site plan by itself is not a substantive piece of evidence so it could contradict or discredit the unchallenged evidence of the prosecution witnesses. Taj Muhammad v. Muhammad Yusuf and 2 others PLD 1976 SC 234.

12. It may be pertinently mentioned here that the occurrence having taken place on 22-10-1988, the accused-respondent remained in hiding for sufficient long time. He was apprehended on 20-3-1993. The abscondence has not been explained satisfactorily. There can be no cavil with the proposition that abscondence, by itself, is never sufficient to prove the guilt of the absconder. However, it would not be correct to say that abscondence in no case provides corroboration to the other evidence and circumstances proving the guilt of the absconder. Therefore, what would be the value and place of the evidence regarding abscondence of the accused in a case would depend on the facts and circumstances of that case. In this connection. Federal Court's Judgment in Mesal and another v. The Crown 1971 SCMR 239 can be quoted wherein it was observed. "While the fact of an alleged offender having absconded may be regarded as providing some kind of support to another evidence which in itself is strong enough to sustain a conviction for the crime charged, such conduct by itself never has the effect of remedying defects in the other evidence led to show participation in the crime. The reason is simple, namely that a man may wish to avoid the consequence of being reported against for the commission of serious crime as ardently if he is not guilty as he might if he is guilty"

13. Where the criminal jurisprudence is to protect the right of accused, it also protects the right of prosecution. The phrase that let hundred guilty be acquitted and not a single innocent be convicted should not be interpreted that even those against whom case has been proved they shall on the basis of rule referred to above shall be let off by extending benefit of doubt but its object is that an innocent person should not be convicted. Where in a case more than one accused are charged and where Court on the basis of evidence can sift the grain from the chaff it can legally on the same evidence convict jointly tried one accused and can acquit the other. It is there when the cardinal principle of criminal jurisprudence that an innocent person should not be convicted, is pressed into service.

14. For what has been discussed above, we have no hesitation that material available on record coupled with the abscondence of the respondent was not sufficient for recording the judgment of conviction instead of acquittal against the respondent. The charge of murder of deceased is proved against the respondent. We share the view of the learned counsel for the appellant that trial Court did not appreciate the evidence of the prosecution in its true perspective and had not given good reasons to pass a finding of acquittal in favour of the respondent. Finding of acquittal is not sacrosanct if the reasons given are of speculative or artificial nature or the findings are based on no evidence or is the result of misreading or misinterpretation of evidence or the conclusions drawn as to the guilt or innocence of the accused are perverse, resulting into miscarriage of justice.

15. The judgments cited at the bar by the learned counsel for the respondent when considered in the light of material on record, speak of the different situation and being distinguishable in their facts and features have no relevance to the instant case.

16. As far the sentence is concerned, nothing has been brought on record as to what transpired between the deceased and the respondent immediately before the occurrence which activated the respondent to fire at the deceased: Immediate cause of murder remains shrouded in mystery. Therefore, we feel that it is not a case of capital punishment and this can be considered to be a factor for bringing his case under section 302(b), P.P.C. The appeal is accepted and impugned judgment dated 6-3-1999 is set aside and respondent Nasrullah Khan son of Adam Khan is convicted under section 302(b), P.P.C. and sentenced to life imprisonment with direction to pay Rs.50,000 (Rupees fifty thousand) as compensation to the legal heirs of the deceased in accordance with the provisions of section 544-A, Cr.P.C. which shall be recoverable as arrears of land revenue. The benefit of section 382-B, Cr.P.C. shall also be available to accused-respondent. Accused-respondent Nasrullah is stated to be confined at present in District Jail, Lakki Marwat in some other case. He shall be informed of this order through Superintendent, District Jail, Lakki Marwat.

17. We had by our short order dated 30-4-2004 accepted the appeal for reasons to be recorded later. Above are the reasons for our short order. H.B.T./154/P Appeal accepted.