2010 PLP 846 (SCMR)

RAHMAT HUSSAIN JAFFERI, J.

The appellant Riaz Ahmed was charged for committing qatl-i-amd of deceased Muhammad Mansha within the area of Dhari of the complainant Muhammad Abbas (P.W.8) on 18-9-1998 at about 6-30 p.m. The complainant alleged that on the aforesaid date at 6-30 p.m. he (the complainant) along with Muhammad Arshad (not examined, as he had expired) and Manzoor Hussain (not examined) was going towards his Dhari. When they reached near the crop of Noor Ahmed, which was at a distance of 30 Karams (165') from the said Dhari, they saw that the appellant armed with .12 bore single barrel gun and Muhammad Aslam, acquitted accused, coming from his Dhari and the deceased was standing outside the Dhari. When the accused reached near the sugar cane crop Muhammad Aslam, acquitted accused, raised a Lalkara and on his instructions, the appellant Riaz fired from his gun which hit the deceased Mansha on the left side between the stomach and chest and he fell down on the ground. The appellant fired another shot at the deceased, which also hit him on his left arm. On the hue and cry made by them the accused persons ran away.

2. The motive behind the incident was that about 25/26 years back Alam Sher father of the appellant had committed the murder of brother of the deceased and in retaliation thereto Alam Sher was also murdered and due to that grudge the incident of the present case took place.

3. At the trial, the prosecution relied upon the evidence the complainant Muhammad Abbas (P.W.8) only. One of the eye-witnesses, namely Muhammad Arshad had expired; therefore, he was not examined, whereas another eye-witness Manzoor Hussain was given up by the prosecution on the ground that he was not necessary witness to be examined. Thus, the prosecution case hinges upon the solitary statement of the complainant. It is pointed out mat Muhammad Aslam, co-accused, was tried separately and was acquitted of the charge.

4. Having heard the learned counsel for the appellant, the learned Deputy Prosecutor-General, Punjab and perusing the record of the case with their assistance, we find that the statement of the complainant is in conflict with the medical evidence, as according to the complainant the deceased was fired upon from a distance of 3 Karams (16-1/2'), whereas the Medical Officer found a .wad lying near the liver inside the body of the deceased. This aspect of the case clearly shows that the gun was fired from a very close range, probably by putting its barrel on the body of the deceased. Thus, there is conflict between the medical and oral evidence. Furthermore, the statement of the complainant is neither supported nor corroborated by any piece of evidence. One of the eye-witnesses Manzoor Hussain was available in the Court on 29-7-2002 but the prosecution did not examine him, declaring him as unnecessary witness without realizing the fact that he was the most important, only serving witness, being an eye-witness of the occurrence. Therefore, his evidence was the best piece of the evidence, which the prosecution could have relied upon for proving the case but for the reasons best known, his evidence was withheld and he was not examined. So a presumption under Illustration (g) of Article 129 of Qanun-e-Shahadat Order, 1984 can fairly be drawn that had the eye-witness Manzoor Hussain been examined in the Court his evidence would have been unfavourable to the prosecution.

5. Apart from the above facts, the complainant also admitted that before the occurrence, there was no quarrel between the deceased and the accused, therefore, the motive alleged in this case, which was about 25/26 years prior to the incident, appears to be highly doubtful. He also admitted that the place where they were standing was not visible to the accused. This also creates serious doubt about their witnessing the incident from such place. This can very well be proved from the fact that the complainant was not able to see the assailants causing fire-arm shots from a very close range or keeping the gun on the body of the deceased. Thus the ocular testimony is highly doubtful, which cannot be safely relied upon on the capital charge.

6. The prosecution also produced the positive FSL report, meaning thereby, the crime empty secured from place of incident matched with the gun recovered from the possession of the appellant. This being a corroborative piece of evidence, which by itself is insufficient to convict the appellant in absence of substantive piece of evidence. Reference is invited to Ijaz Ahmed v. State 1997 SCMR 1279. It was held in the case of Asadullah v. Muhammad Ali 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 was held that when there is no eye-witness to be relied upon then there is nothing, which can be corroborated by the recovery. It has been held in the cases of Riaz Masih v. State 1995 SCMR 1730 that recovery of crime weapon by itself is not sufficient for conviction on murder charge. In the case of Siraj v. Crown PLD 1956 Federal Court 123, it was held that recovery of the handle of blood-stained hatchet at the instance of the accused, when other evidence was disbelieved, then it was not enough for conviction. In the case of Saifullah v. The State 1985 SCMR 410 at page 159, it has been observed as under:

"We have therefore no option but to exclude the testimony of the afore-mentioned two witnesses from consideration, with the result that no evidence is left on the record to connect the accused with the crime in question, as the recovery of the blood-stained knife, even if believed, could only be used as evidence corroborating the testimony of the eye-witnesses, if any. But since evidence of the eye-witnesses in this case has been excluded this recovery is hardly of any use."

7. It is pointed out that the appeal is barred by 85 days. Since no case has been made out against the appellant and he is acquitted of the charge, therefore, for the safe administration of criminal justice, we feel it appropriate to condone the delay, which is accordingly done.

8. In the light of what has been discussed above, the prosecution has failed to prove the case against the appellant beyond reasonable doubt. Consequently, the appeal was allowed by our short order dated 11-1-2010. These are the reasons of the said short order, which reads as under:

"For the reasons to be recorded later on, while accepting the appeal of the appellant, his conviction and sentences, recorded by the Courts below, are set aside. He is acquitted of the charges and be released forthwith, if not required in any other case." N.H.Q./R-2/SC Appeal accepted.