2016 P Cr (PLP)

ASSADULLAH KHAN CHAMKANI, J.

Complainant Ghulam Rabbani (PW.5) (appellant herein), through this criminal appeal has called in question judgment dated 13.07.2006 of learned Additional Sessions Judge-I, Lakki Marwat whereby he acquitted respondent-accused Muhammad Younas in case FIR No.502 dated 30.12.2002, registered under section 302 P.P.C. at Police Station Lakki.

2. The prosecution case as unfolded in the FIR is that, complainant Ghulam Rabani reported to local police in civil hospital Lakki Marwat, that on the fateful day he came after his father Ghulam Muhammad, who by then was present with Rahim Gul in his Baithak, wherefrom they all started towards Adda of Rahim Gul. At 07.40 a.m. when they reached near the gate of Rahim Gul, accused Muhammad Younas (respondent-accused herein), armed with pistol, suddenly emerged and opened fire at his father Ghulam Muhammad, resultantly, he was hit and succumbed to injury on the way to hospital. Some land dispute is stated to be the motive behind occurrence. Report of complainant was incorporated into murasila Exh.PA/1 on the basis of which FIR mentioned above was registered.

3. After arrest of the accused/respondent and completion of investigation, challan was submitted against him before the Trial Court, where he was formally charged to which he pleaded not guilty and claimed trial. In order to prove his guilt, prosecution examined as many as nine witnesses. After closure of the prosecution evidence, statement of accused was recorded under section 342, Cr.P.C. wherein he denied the prosecution allegations and professed his innocence. He, however, declined to be examined on oath under section 340(2), Cr.P.C. or to produce evidence in defence. On conclusion of trial, learned Trial Court, after hearing both the sides, acquitted the accused. Hence, this appeal.

4. Learned counsel for the appellant/complainant argued that impugned judgment of the Trial Court is the result of misreading and non-reading of evidence available on the record; that the learned Trial Court while giving undue importance to minor discrepancies in the prosecution evidence, acquitted the accused who is singularly charged for committing murder of the deceased in a broad daylight; that accused was arrested red handed along with crime pistol by the police the moment he was being decamped from the spot, and separate FIR under section 13, A.O. was registered against him; that substitution in case of single accused is a rear phenomena; that report has been lodged with promptitude eliminating the possibility of consultation and deliberation; that the eye-witnesses have established their presence on the spot with the deceased and have furnished true account of the incident; that defence has badly failed to shatter their testimony on material aspects of the case; the eye-witnesses have attributed single shot to the accused, which get support from medical evidence wherein single injury has been observed on the person of the deceased; that the ocular account get further corroboration from recovery of single crime empty from the spot. He vehemently argued that prosecution has proved the guilt of accused up to the hilt through cogent and confidence inspiring evidence, therefore, the impugned judgment of the Trial Court is liable to be reversed.

5. Conversely, learned counsel for the accused/respondent while controverting the arguments of learned counsel for the appellant contended that accused is innocent and has been falsely implicated in the case; that time of the occurrence of the present case and time of arrest and recovery given in case registered under section 13, A.O. are one and the same, which makes the report doubtful; that no blood has been secured from the spot as alleged by the complainant rather the same was secured from inside Adda, which makes the place of occurrence and presence of the eye-witnesses highly doubtful; that FSL report qua the recovered crime empty and pistol negates the prosecution version; that site plan and medical evidence contradict the ocular account. He argued that prosecution has miserably failed to bring home the guilt of accused through cogent and confidence inspiring evidence, and the learned Trial Court while appreciating the evidence in its true perspective reached to a just and proper conclusion by acquitting the respondent/accused. He sought dismissal of the appeal.

6. Learned A.A.G. adopted the arguments of learned counsel for the complainant.

7. We have considered the exhaustive arguments of learned counsel for the parties and perused the record with their able assistance.

8. True that accused is singularly charged for murder of deceased Ghulam Muhammad and no doubt the Hon ble Supreme Court in plethora of judgments has held that substitution of single accused in a murder charge is a rare phenomenon, but still to put the rope around the neck of an accused charged singularly, there must be ocular account of unimpeachable character, trustworthy and confidence inspiring, corroborated by other material circumstantial evidence.

9. Ghulam Rabani (PW.5) and Rahim Gul (PW.6), have furnished the ocular account of the incident. According to their statements on the day of occurrence they both along with deceased started from the Baithak of Rahim Gul and when reached the gate of Rahim Gul, accused Muhammad Younas suddenly appeared and fired a shot at the deceased Ghulam Muhammad with his pistol, with which he was hit and died on the way to hospital. Complainant has mentioned the crime venue in his report near the gate of Rahim Gul, but in their Court statements both the eye-witnesses introduced the place of occurrence to be the gate of Adda for the first time, which amounts to dishonest improvement just to bring in line the place of occurrence with the prosecution evidence. Neither in the report nor in their statements, none of the PWs has stated a single word that when they all came out from the Baithak of Rahim Gul, the deceased went across the road, leaving them behind just in front of the Baithak with a distance of about 13 paces as shown in the site plan. According to PW Ghulam Rabani he had come after his father to extend him help in running Adda affairs, then why he did not accompany his father towards the Adda and preferred to stay back with PW Rahim Gul across the road, as shown in the site plan. Besides, site plan which has been prepared at the pointation the eye-witnesses contradicts their testimony. PW.5 Ghulam Rabbani deposed that after being hit, his father did not fell down on the cot because they caught hold him. Not a single word has been uttered by him in his report about availability of any Cot on the spot, rather the occurrence has been shown on a thoroughfare. Same version has been set forth by PW.6 that they caught hold the deceased when he was hit. Statement of PW.6 is in contrast with his statement under section 161, Cr.P.C. wherein he has stated that after receiving injury, the deceased fell on the ground. The witness though denied falling of the deceased on the ground in his statement under section 161, Cr.P.C. but when the same was confronted, falling on the ground recorded . The eye-witnesses are not unanimous about the kind of vehicle in which the deceased then injured was shifted to the hospital. Ghulam Rabbani PW.5 deposed that they shifted him in a Datsun Pickup which arrived at the spot just within a minute or two, whereas according to Rahim Gul PW.6, he was shifted to hospital in a mini Mazda Truck. PW.6 admitted that there is a great difference between Datsun Pickup and mini truck. Moreso, if both the PWs after hitting the deceased, caught hold of him, their clothes and hands should have been smeared with the blood of the deceased but none of them has produced their garments stained with the blood of the deceased so as to prove their presence with the deceased. Ghulam Jan ASI (PW.2), who is marginal witness to recovery memo Exh.PW.2/1 vide which an empty of .30 bore pistol had been taken into possession by the I.O., in cross-examination deposed that said empty was recovered from inside the Adda near the room, lying at a distance of about 4/5 paces from the blood lying on the spot, meaning thereby that the incident took place inside the Adda and not on the thoroughfare as stated by complainant. No blood has been recovered from the thoroughfare which has been shown as the place of incident by the alleged eye-witnesses and this fact has also been admitted by the Investigating Officer that no blood could be recovered from the thoroughfare, as shown in the site plan Exh.PB. All these peculiar facts and circumstances of the case clearly prove the non-presence of the alleged eye-witnesses with the deceased at the time of incident.

10. So far as arrest of the accused by Taimoor Shah S.H.O. (PW.7) along with crime pistol is concerned, he deposed that on receipt of information about the occurrence he rushed to the spot and recorded report of the complainant at 07.50 a.m.; that he after preparing injury sheet, inquest report of the deceased, dispatching his dead body to the mortuary, sending of murasila to Police Station for registration of the case, he chased the accused along with DSP, arrested him and recovered .30 bore pistol No.340690 from his possession vide memo. Exh.PW.3/1. He further deposed that it took ten minutes while drafting murasila, preparing injury sheet and inquest report of the deceased in the present case. The time of report in the present case is 7.50 a.m. So if we include ten minutes with 7.50 a.m. he would have completed the aforesaid documents till 8.00 a.m., whereafter he would have started chase of the accused and allegedly arrested him with crime pistol, for which separate FIR under section 13 A.O. was registered. If one goes through the FIR under section 13 A.O., he would find the time of occurrence i.e. the time of arrest of the accused and recovery of pistol from his possession to be as 07.40 a.m. which is the time of occurrence of the present case FIR No.502. Taimur Shah PW.7 deposed that murasila of the present case was sent through FC Shah Sawar (PW.3) for registration of the case, but again perusal of recovery memo. Exh.PW.3/1 vide which the pistol has been shown taken into possession reveals that said Shah Sawar has been cited as marginal witness to said recovery memo. If said Shah Sawar had taken the murasila of the present case at 8.00 a.m. to police Station, how he was present with PW.7 at the time of arrest of the accused and recovery of pistol at 07.40 a.m. which create serious doubts in the prosecution case.

11. Yet there is another aspect of the case which disturbs a prudent mind. PW Taimur Shah has been examined as PW.2 in the case registered under section 13, A.O., wherein he has given totally a different story. He deposed that in fact on the relevant day, date and time of occurrence, he along with other police contingent was on routine patrolling duty and was proceeding towards Tajazai after coming out from Lakki Bazaar, when came across the then DSP, who was coming from Tajazai side near Graban bridge and from there he started chase of accused under the supervision of DSP and succeeded to arrest him with a .30 bore pistol. During cross examination he admitted that he came to know about the present occurrence in Lakki Bazaar, and on information that accused has run away towards Graban bridge, he started his chase and succeeded to over power him at 07.40 a.m. at a distance of about one kilometer from Lakki Bazaar, where he got the information about the present occurrence, whereas 07.40 a.m. is the time of occurrence of the present case. So if the accused was arrested at 07.40 a.m how he initiated the present occurrence. The statement of Taimur Shah, Seizing Officer, totally negates his testimony furnished by him in the instant case, which create serious doubts in the prosecution case.

12. Apart from above, the recovered pistol and crime empty have been sent to the FSL for chemical analysis but the Fire Arms Expert Report Exh.PK is in negative, so this piece of evidence would not advance the case of the prosecution rather would create doubts in the prosecution case.

13. Motive alleged by the complainant remained unproved. Not an iota of evidence has been brought on record to this effect. Prosecution though is not called upon to establish motive in every case, yet once it has set up a motive and fails to prove the same, then it would be the prosecution to suffer the consequence and not the defence. Reliance placed on case titled, Riasab Khan v. Noor Muhammad and another (2010 SCMR 97). In Hakim Ali and 4 others s case (1971 SCMR 431) it has been held by the apex Court that it is not necessary for the prosecution to set up a motive in every case but where the prosecution has set up a motive and failed to establish it, then it is the prosecution which must necessarily suffer on that account and not the defence. Moreso, motive is always considered as a double edged weapon which cuts both ways. It can be used by the accused to take revenge, and at the same time, can be a tool used by the complainant for false charge, as well.

14. The alleged eye-witnesses have not established their presence on the spot with the deceased at the time of occurrence. There are major contradictions in their testimony qua the crime spot. The story of arrest of the accused along with crime pistol has not been proved through cogent and confidence inspiring evidence. The Firearms Expert report qua recovered pistol and empty negates the prosecution version. Besides, the accused has been acquitted in the said 13, A.O. case, against which no appeal has been filed and the findings of the trial court has got finality. So on this score too this piece of evidence cannot advance the case of the prosecution. The combined study of the evidence coupled with peculiar facts and circumstances of the case, the occurrence has not taken place in the mode and manner as alleged by the prosecution. The testimony of alleged eye-witnesses is untrustworthy and incredible creating serious doubts in the prosecution case, which cannot be believed and relied upon keeping in view the cardinal principle of administration of criminal justice that prosecution is bound to prove its case beyond any shadow of doubt. If any reasonable doubt arises in the prosecution case, the benefit of the same must be extended to the accused not as a grace or concession, but as a matter of right. Likewise, it is also well embedded principle of criminal justice that there is no need of so many doubts in the prosecution case, rather any reasonable doubt arising out of the prosecution evidence, pricking the judicial mind is sufficient for acquittal of the accused. Basically, it is the principle enshrined in Islamic jurisprudence, fourteen hundred years ago that it would be better to acquit hundred culprits than convicting one innocent soul. Which has now been transformed into the form of the principle that, acquitting by error would be better than convicting by error . The said commandment has evolved into the theory of benefit of doubt, which, invariably, is extended to the accused for safe administration of criminal justice.

15. Compendium of the above discussion is that prosecution case is stuffed with many doubts going to the roots of the case. Admittedly, the ordinary scope of appeal against acquittal of accused is considerably narrow and limited on the examination of the judgment of acquittal as a whole, credence should be accorded to the findings of the learned trial Court whereby the accused had been exonerated from the charge of commission of the crime. It is well settled law that once if judgment of acquittal is recorded, the accused earns double presumption of innocence, therefore, such judgment cannot be interfered with unless and until strong and exceptional circumstances exist, warranting interference by this Court but the instance is lacking of any such ground. Wisdom may be derived from case titled, Iftikhar Hussain and others v. The State (2004 SCMR 1185), case titled, Ghulam Sikandar and another v. Mamaraz Khan and others (PLD 1985 SC 11).

16. It is also a settled law that after earning the acquittal from the trial Court, double presumption of innocence is acquired by an accused. While Court sitting in appeal against acquittal must be slow in reversing the judgment of acquittal, unless it is found to be arbitrary, fanciful and capricious on the face of it or is the result of bare misreading or non-reading of any material evidence. In the instant case, no such infirmity has been found in the impugned judgment. The learned trial Court has rightly acquitted the respondent/accused by extending him benefit of doubt, after proper appraisal of evidence to which no exception can be taken.

17. Resultantly, this appeal being without substance, stands dismissed. HBT/453/P Appeal dismissed.