2015 PLP 315 (SCMR)

DOST MUHAMMAD KHAN, J.

Appellant Pathan was handed down death penalty by the learned Additional Sessions Judge, Moro, in Session Case No. 148/1996. Leave to appeal was granted on 21-9-2007 to consider the legal worth and probative value of the ocular account in light of the unnatural conduct of the eye-witnesses because the learned Bench of the High Court of Sindh at Sukkur vide impugned judgment dated 2-3-2006 converted the death penalty to life imprisonment.

2. It has been alleged in the F.I.R., lodged by the son of the deceased on 8-12-1996 that the deceased left the house for duty at the school, where he was a head teacher, at 0845 a.m. and after covering some distance when he reached the crime spot by then, besides the complainant one relative Baradi (P.W. 2) and Muhammad Yousaf (P.W.3) also joined them when in the meanwhile they heard the outcries of the deceased and saw that the appellant was stabbing him with scissors. On raising alarm, the P.Ws. were attracted, who were threatened by the accused, however, he fled away from the spot. They lifted and took the deceased to the Moro Hospital where he expired. After conclusion of the investigation, charge sheet was framed by the prosecution and at the end of the trial, the sentence as stated above was awarded to him, which was modified by the High Court as above.

3. In the instant case, the most striking, decisive and overriding effect would be that of the ocular account. If that evidence is believed then rest are the corroborative pieces of evidence and would be referred to but in case the ocular account is disbelieved, then remaining evidence would be of no legal worth to carry conviction.

4. In this case, the deceased has received numerous stab/incised wounds on different parts of his body, numbering 19 in all. The appellant was armed only with scissors not a formidable weapon of destruction. The complainant is the son of the deceased while Baradi and the other P.W. Muhammad Yousaf are also related to the deceased. The causing of such large number of injuries one after another to the deceased with scissors must have consumed reasonable time due to the pause in between the first injury and the last one but all the three P.Ws. including the son with a strong stature and built remained as silent spectators. They did not react or showed any response when the accused was causing the injuries. No man on the earth would believe that a close relative would remain silent spectator in a situation like this because their intervention was very natural to rescue the deceased but they did nothing nor attempted to chase the accused and apprehend him at the spot.

5. Keeping in view the provision of Article 129 of the Qanun-e-Shahadat Order, which is to the following effect:-- "S.

129. Court may presume existence of certain facts.

The Court may presume the existence of any fact which it thinks likely to have happened regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case-" The presence of witnesses on the crime spot due to their unnatural conduct has become highly doubtful, therefore, no explicit reliance can be placed on their testimony. They had only given photogenic/photographic narration of the occurrence but did nothing nor took a single step to rescue the deceased. The causing of that much of stab wounds on the deceased loudly speaks that if these three witnesses were present on the spot, being close blood relatives including the son, they would have definitely intervened, preventing the accused from causing further damage to the deceased rather strong presumption operates that the deceased was done to death in a merciless manner by the culprit when he was at the mercy of the latter and no one was there for his rescue. In similar circumstances, the evidence of such eye-witnesses was disbelieved by this Court in the case of Masood Ahmed and Muhammad Ashraf v. The State (1994 SCMR 6). It was vehemently argued by the learned Advocate Supreme Court for the appellant that on the day of occurrence it was Sunday and being a Gazetted holiday, the appellant was not at all required to attend to his official duty at the school to which he was attached and for that reason the giving company to him by his son and by sheer chance the joining of the other two P.Ws. with them renders the testimony of the P.Ws. absolutely doubtful.

6. The only cause/motive for causing the murder of the deceased was that the appellant was a teacher in the school where the deceased was a head teacher and the appellant was transferred to a village mosque school, on which he was annoyed and was driven to the extreme to take revenge. In the first instance, the motive has not been established in any manner whatsoever through any documentary evidence or even secondary evidence of reliable nature but we fail to understand and to rely on such artificial motive because under the law a head teacher has no authority to transfer a teacher of his school to another not under his control and management but he can only recommend his transfer to the Education Officer of the District or of the Circle for that end.

7. If the transfer of the appellant by the deceased is taken to be true for a moment, it would not have driven the appellant so frantically wild, moving him to that extreme by so ruthlessly avengeful to act in this manner rather, it appears to be the job of a person who was driven so either by family honour or someone highly provoked after having been disgraced or might be the job of gangsters or target killers, who normally act and re-act in this manner. In any case, the motive has faded out so set up by the prosecution. We have reason to entertain many doubts and suspect that the prosecution has actively suppressed the true motive from the Court of Law.

8. True that, motive in legal parlance is ordinarily not considered as a principal or primary evidence in a murder case, however, in some rare cases like the present one, the motive would play a very vital and decisive role for committing a murder. As the motive has almost disappeared for want of proof and being entirely feeble, artificial and not at all appealing to a prudent mind, therefore, it has rendered the entire episode of the tragedy doubtful. On this score too the prosecution case is liable to be discarded as a whole.

9. For what has been discussed above, we are of the firm view that none of the so called eye-witnesses were present with the deceased when he was inflicted upon the injuries as a result he succumbed to the same. Once the ocular account is discarded as we have done so, then the recovery of scissors, which otherwise appears doubtful and other pieces of evidence, keeping in view the well embedded principle of law and justice would not be sufficient to carry conviction on a capital charge.

10. With respect to the learned Judges of the High Court, they have conveniently ignored the above material aspects of the case and salient features of the crime, particularly the unnatural conduct of the witnesses and placed reliance on their testimony without judicial care and caution, which has resulted into miscarriage of justice because the prosecution has miserably failed to prove the presence of the eye-witnesses on the crime spot at the fateful time, therefore, it is held to be an unseen crime.

11. Accordingly, while extending benefit of doubt to the appellants, this appeal is allowed. The conviction and sentences awarded to the appellant are set aside. It is directed that he be set free forthwith if not required in any other case. MWA/P-16/SC Appeal allowed.