2004 PLP 1448 (MLD)

(3) The exit wound of wound No.2 is through crenal cavity being flown out. (4) One entrance wound of fire‑arm 1‑1/2" blow left nipple size 1/3" x 1/3" skin and muscle and chest cavity deep. (5) One entrance wound of fire‑arm one inch lateral to wound No.4 size 1/3" x 1/3" skin muscle and chest cavity deep. (6) One entrance wound of fire‑arm 1" left lateral and half inch below the wound No.5 above skin muscle and chest cavity deep. (7) One entrance wound of fire‑arm size 1/3" x 1/2" which is 2" below the wound No.4 skin muscle and chest cavity deep. (8) One exit wound of fire‑arm of size 2" x 1" at the right side of the base of neck which is the exit for entrance wound No.4. (9) One exit wound of fire‑arm of the size 1 x 1‑1/4" at the top of right shoulder which is exit wound for the entrance wound No.5. (10) One exit wound of fire‑arm at the upper part of right arm pit size 2" x 1‑1/2", which is exit wound to the entrance wound of fire‑arm No.6. (11) One entrance wound of fire‑arm at the back of left side of chest 3" below the left shoulder of size 1/3" x 1/2" skin muscle and chest cavity deep. (12) One exit wound of fire‑arm at the front of right side of neck size 3" x 1‑1/2" at the level of right sternum clavicular joint. (13) One entrance wound of fire‑arm at the back of left side of chest 7" below the left shoulder of size 1/3" x 1/3" skin muscle and chest cavity deep. (14) One exist wound for the entrance wound No. 12 at front of right side chest just below right clavicle size 2" x 1‑1/2". (15) One entrance wound of fire‑arm at left lumber region (back) size 1/3" x 1/3", skin muscle and abdominal cavity deep. (16) One exit wound of fire‑arm at the right side of chest and apegestric region size 4" x 2‑1/2". (17) One entrance wound above the left iliac crest size 1/2" x 1/3" (back side). (18) One exit wound of fire‑arm at the right side of sternum 3/4" medial to right nipple. Size 1" x 1/4". (19) One entrance wound at medial side of right fore‑arm size 1/3" x 1/3". (20) One exit wound on outside of right fore‑arm size 1" x 1" just in the medial. (21) One entrance wound fire‑arm size 1/3" x 1/3" at the left fore arm (lateral. aspect). (22) One exit of fire‑arm size 1/2" x 1/3" on left fore‑arm in the middle (aspect was medial one). On internal examination, skull and scalp, thoracic wall, ribs and cartilages, pleaura lyrnx and trachea, right lung, left lung, pericardium and heart and blood vessels were found injured. Probable time between injuries and death: Instantaneous. Probable time between death and post mortem 2‑03 hours.

7. The trial culminated into conviction of the appellant as mentioned above.

8. While challenging the validity of impugned judgment, Khawaja Muhammad Khan, Advocate for the appellant, contended that there is no reliable evidence on record to sustain conviction thereon; that prosecution case is discrepant and unbelievable; that the motive advanced by the complainant is improbable; that site‑plan prepared in the case contradicts the ocular account and medical evidence and that F.I.R. was fabricated and prepared after preliminary investigation. To substantiate the pleas, he placed reliance on Riaz Hussain v. The State (2001 SCMR 177), Mir Mat Khan alias Matokai v. The State (2002 PCr.LJ 1914 Peshawar), Muhammad Ilyas and 3 others v. The State (1989 PCr.LJ 226) and Shah Pasand v. The State (1989 PCr.LJ 1966).

9. While opposing the aforesaid contentions of learned counsel for the appellant and supporting the impugned conclusion of the trial Judge whole‑heartedly, ‑ Malik Hamesh Gul Khan, Advocate for the State assisted by Mr. Mansoor Abbas, Advocate for the complainant contended that prosecution had fully established its case against the appellant beyond reasonable doubt and the impugned conviction and sentence awarded to him is the result of proper appreciation of evidence brought on record which needs no interference. Additionally it was urged that abscondence of the appellant in the given circumstances of the case goes a long way to corroborate the prosecution evidence and to point out to the guilt/involvement of the appellant in the crime where the same has not been plausibly explained. Besides this, the defence has not projected even through slightest insinuation about the innocence of the appellant or involvement of some other person in the commission of crime. In this regard, they placed reliance on Mehboob Ali alias Maqbali v. The State (2000 PCr.LJ 823 Peshawar).

10. The prosecution evidence having been carefully perused, we find that appellant s counsel has rightly argued that the prosecution evidence suffers from infirmities and improbabilities and could not be made basis of conviction of the appellant. It is well‑settled principle of safe administration of criminal justice that an accused has only to show a dent having created in the case of the prosecution and that he is entitled to benefit of even a single doubt found in the evidence of the prosecution and that he has not to show that its case suffers from more than one doubt. Any eye‑witnesses who claims his presence at the spot must satisfy the mind of the Court through some physical circumstances or through some corroborative evidence in support of his presence at the spot. The prosecution case mainly revolves on the solitary statement of complainant Khan Wali (P.W.4). The statement of the sole witness stands belied by host of circumstances and does not connect the appellant with commission of the crime in any manner. We entertain serious doubt in our minds regarding his presence at the spot at the relevant time and his claim of having witnessed the incident. Had he been with the deceased, he would not have been spared by volley of shots attributed to appellant and his co‑accused.

11. It is true that the solitary statement of a witness is sufficient to base conviction of an accused person provided it rings true but it is equally true that the solitary statement of related chance witness is seldom relied upon in a case involving capital charge unless such witness inspires confidence by furnishing plausible and convincing explanation for his presence at place where he is ordinarily not expected to be ‑present at a given time.

12. It may be pointed out that, it is a well‑established principle of law that, in a case involving the capital punishment, the Court will not base conviction on the sole testimony of a witness, whose credibility is not free from doubts, therefore, for safe dispensation of justice in criminal cases the Courts look for some independent corroboration, which in our considered opinion is lacking in the instant case. Reference in this regard may be made 1998 SCMR 25, wherein following observations were made:‑‑ "Therefore where the trial Court places reliance on the evidence of a witness on the basis of its personal observation regarding the demeanor of witness, such observations cannot be lightly ignored by the appellate Court. However, where the evidence of a witness is evaluated by the trial Court on the basis of the other evidence and circumstances in the case, such evaluation is open to be tested before the Appellate Court on the touchstone of principles and guidelines laid down by the superior Courts for appreciation of evidence in such cases. One salutary principle laid down by this Court in this behalf and which is now firmly established is, that in a case involving capital, punishment, the Courts will not base conviction of an accused solely on the testimony of interested witness unless such evidence, finds corroboration by some other independent and unimpeachable piece of evidence or circumstance in the case. This rule of prudence though, not statutory in nature, has been followed by Courts ‑so consistently through years that it has come to be recognized almost as a rule of law. The departure from this rule is to be found rarely and in very exceptional circumstances of a case. Therefore, to say that the evidence of an interested witness is to De accepted solely on the ground that it remained unshaken during cross‑examination is not a correct proposition. As held in the case of Din Muhammad v. Crown (1969 SCMR 777), to test the testimony of a witness, Court should not only consider whether there is consistency in the narrative but should also consider, whether the version is probable or not. These observations were quoted with approval in the case of Iqbal alias Bhala v. State (1994 SCMR 1) as follows:‑‑ "In assessing the value of evidence of eye‑witnesses it is necessary to examine whether in the facts and circumstances of the case their presence at the scene of occurrence in such a situation as would make it possible for them to witness it should be believed and further that whether there is anything inherently probable or unreliable in their evidence. In Din Muhammad v. Crown (1969 SCMR 777) it was observed that to test the testimony of a witness Court should not only consider whether there is consistency in the narrative, but should also consider whether the version is probable or not."

13. There is complete absence of motive in this case. Of course, we are cognizant of the fact that if the prosecution case is based on direct evidence, absence of motive would not matter but the ocular version in the instant case suffers from material contradictions, discrepancies and inconsistencies which is incredible and unreliable.

14. So far as the abscondence of the appellant is concerned, it is meaningless because it can neither remove the defects of the oral evidence nor is, by itself, sufficient to bring home guilt to the accused. Abscondence per‑se is not a proof of the guilt of an accused person. It may, however, create suspicion against him but suspicions, after all, are suspicions. Disappearance of a person named as a murderer after the occurrence is but natural, whether named rightly or wrongly. Aminullah v. The State (PLD 1976 SC 632).

15. It is recognized principle of law that in criminal administration of justice, evidence furnished by interested witness related to victim or deceased cannot be discarded merely for the reason that the witness has relationship with the victim. However, the Courts have emphasized that in such‑like situation, efforts must be made to seek corroboration from other evidence available on record. As far as corroboration is concerned, it does not mean that it should come from an independent source but anything in the circumstances which could satisfy the Court to believe that the witnesses has spoken the truth and can safely be considered to be corroborative evidence. It is a settled law that in absence of any other corroborative evidence, this evidence, even if found convincing, would not be sufficient by itself to warrant the conviction of the accused person on a charge of murder. From the facts and circumstances of the case, it appears that the complainant did not witness the occurrence and after hearing reports of the fire shots he rushed to the place of incident and after consultations and deliberations, charged the appellant.

16. In the final analysis of evidence, we are of considered view that in this case prosecution has failed to prove the case against the appellant beyond doubt. Ocular account of complainant does not inspire confidence and it is doubtful whether he had seen the incident. No doubt the occurrence had taken place in which Faizullah deceased lost his life but not in the manner asserted by the prosecution. There is no corroborative evidence to supplement ocular evidence. Prosecution can seek support from motive, medical evidence, recoveries and abscondence, but each piece of evidence is defective and failing in intrinsic value, hence, not fit for reliance to corroborate ocular version, which is itself defective. It is settled principle of law that one piece of tainted evidence cannot corroborate another tainted piece of evidence. We, therefore, hold that it is a fit case in which benefit of doubt can be given to the appellant.

17. For what has been discussed above, while allowing this appeal, we set aside the conviction and sentence awarded to the appellant and acquit him of the charge. He shall be released forthwith if not required M in any other case.

18. Above are the detailed reasons for our short order dated 19‑4‑2004. H.B.T./139/P Appeal allowed.