2013 PLP 106 (SCMR)

SARMAD JALAL OSMANY, J.

This Appeal, by leave of the Court, impugns the Judgment of the learned Peshawar High Court (Abbottabad Bench) in Criminal Appeal No.98 of 2004 filed by the appellant whereby same was dismissed and his conviction under section 302(b), P.P.C. and subsequent punishment of life imprisonment as well as fine etc. was upheld.

2. Briefly stated the facts of the prosecution case are that on the fateful day when complainant Mst. Nasreen and her father-in-law Sakhawat Shah were working in the lands of one Khalil Khan along with her mother-in-law Mst. Gul Nia, Accused Ghani Shah, Nawab Shah, Walayat Shah, Muzaffar Shah, Tahir and Appellant/Accused Mehboob appeared at the scene duly armed with rifles. The moment Sakhawat Shah got sight of the accused, he attempted to run away. Nawab Shah, Ghani Shah, Muzaffar Shah and Walayat Shah caught hold of him whereas Mehboob and Tahir fired upon him with their weapons as a result of which he sustained numerous injuries i.e. on his left chest, left shoulder, stomach, right side rib, left thigh and left calf and died on the spot. All the accused thereafter decamped towards the forest. The motive statedly was the previous blood feud between the parties.

3. Mr. Altaf Ellahi Shaikh, Learned Senior Advocate Supreme Court appearing for the appellant has firstly submitted that only one solitary eye-witness was produced by the Prosecution before the learned trial Court i.e. Mst. Nasreen who being closely related to the deceased, therefore, her evidence is to be treated with some caution. Secondly per learned Senior Advocate Supreme Court, co-accused Nawab Shah, Ghani Shah, Muzaffar Shah and Walayat Shah have been acquitted on the same set of evidence and hence in order to convict the appellant, strong corroboratory evidence is required which is lacking in the matter. His final submission is that the plea of alibi as put forward by the appellant in his statement under section 342, Cr.P.C. before the learned trial Court has been ignored, although supported by the Prosecution itself since P.W.10 Muhammad Ashraf Khan I.O. himself tendered in evidence a letter from the Frontier Constabulary wherein it has been certified that the appellant was on his duty elsewhere on the fateful day. For this proposition he has relied upon Wasiullah v. Mirza Ali and another (PLD 1963 SC 25), (ii) Munawar Ali alias Munawar Hussain v. The State (PLD 1993 SC 251), (iii) Allah Wadhayo and another v. The State (2001 SCMR 25) and Aminullah v. The State (PLD 1982 SC 429).

4. Mr. Muhammad Siddique Khan Baloch, learned Advocate Supreme Court appearing for the Advocate-General, Kyber Pakhtunkhwa has on the other hand fully supported the impugned judgment.

5. We have heard both the learned ASC's for the parties at some length and have perused the record with their assistance.

6. The most significant aspect of the matter as noted by us is the fact that the appellant/accused had himself surrendered before P.W.10 S.I./I.O. Muhammad Ashraf Khan along with the letter from the Commanding Officer of Gilgit Scouts dated 17-8-2000 to the effect that the appellant was on duty in Gilgit on the day of occurrence which was produced in evidence as Exb.P.W. 10/2 by said witness. Similarly under cross examination he has also produced the statement of five persons from the appellant's unit namely Mazhar Shah son of Sajawal Shah, Muhammad Tariq son of Saifullah, Said Bakht Khan Naib Subaidar, Shamsher Khan son of Mir Tazam Khan and Muhammad Zahoor son of Noor Khan as Exb.P.W.10/D1 to the effect that indeed the appellant was on duty with them in Gilgit on the day of incident. This would therefore mean that at the earliest opportunity the appellant had insisted upon his plea of alibi before the police authorities and also stated as much in his statement under section 342, Cr.P.C. before the learned trial Court. P.W.10 S.I./I.O. Muhammad Ashraf Khan was not declared hostile or cross examined by the Prosecution insofar his evidence regarding the appellant's alibi is concerned. In this regard it is well settled that the accused while raising a defence plea is only required to show that there is a reasonable possibility of his innocence and the standard of proof is not similar to that as expected of the prosecution which must prove its case beyond any reasonable doubt. Consequently where a witness (in this case strangely for the Prosecution) has introduced certain documents in evidence which would substantiate the appellant's plea of alibi, then the onus would shift to the Prosecution to disprove the same which as noted above was not done.

7. In the present case, therefore, some doubt is caused in the matter of the appellant's presence at the scene of incident, the benefit of which must certainly go to him. Consequently this appeal is allowed and the impugned judgment is set aside. The appellant is acquitted of the charge against him. Hence he shall be given his freedom if not required in any other case. MWA/M-63/SC Appeal allowed.