2021 P Cr (PLP)

ABDUL HAMEED BALOCH, J.

This criminal appeal has been directed against the judgment dated 31st October, 2018 (impugned judgment), passed by learned Sessions Judge, Jaffarabad at Dera Allah Yar, (trial court), whereby the appellant was convicted under sections 302(c), 34, Pakistan Penal Code (P.P.C.) and sentenced to suffer twenty five (25) years rigorous imprisonment with benefit of section 382-B, Cr.P.C. The appellant was also directed to pay Diyat amount to the legal heirs of deceased as envisaged under section 308, P.P.C.

2. Succinct facts of the case are that on 21st October, 2017, the complainant Hamza Khan lodged FIR No. 32 of 2017, with Police Station Malik Muhammad Ali District Sohbat Pur, under sections 302, 34, P.P.C., alleging therein that on the said date the complainant along with his relatives Mohib Ali, Per Bakhsh and nephew Chakar was in his house. Some one called Chakar from outside, on which they went outside and saw accused Muhammad Ali and another accused having TT pistols in their hands. As soon as Chakar went near them, they opened fire by saving that he was Siakar with Shabana wife of Barkat Ali, due to which his nephew succumbed to the injuries at the spot. It is further alleged that since they were empty handed, as such the accused after commission of offence fled away from the spot. Hence FIR was registered.

3. After registration of FIR, the investigation of the case was carried out and after formal investigation the challan of the case was submitted before the trial court.

4. At the trial after framing of charge the prosecution in order to substantiate the charge produced as many as six witnesses. After close of prosecution side the appellant was examined under section 342, Cr.P.C., wherein he denied the allegation of prosecution. The appellant did not opt to record his statement on oath as envisaged under section 342, Cr.P.C. or produce any witness in his defence.

5. On completion of the trial, the learned trial court heard arguments and thereafter, convicted the appellant in the terms as mentioned in para-1 supra vide impugned judgment, hence this appeal.

6. We have heard the learned counsel for the parties and perused the material available on the record. The ocular account was furnished by PW-1 Muhammad Ali, PW-2 Mohib Ali and PW-3 Peer Bakhsh. The prosecution case hinges upon the credibility of testimony of these prosecution witnesses. The prosecution case is that the occurrence took place at 4:00 p.m. The accused fired on deceased, while the above prosecution witnesses were standing behind the deceased. The firing continued for 5/10 minutes, but surprisingly no bullet hit them. The statements of these ocular witnesses not found in agreement with each other. It is astonishing that theses witnesses being close relatives of deceased were let free without any assault or attempt to assault, though the alleged eye-witnesses were standing behind the deceased. It does not appeal to logic that by killing a person in presence of close relatives the accused would not attempt to cause any injuries/ kill the prosecution witnesses leaving them for evidence to be hanged. Reliance in this regard is placed on case of Dohlu v. The State, reported in 2002 PCr.LJ 690 and Muhammad Farooq v. The State 2006 SCMR 1707.

7. The complainant stated motive behind the murder was that the accused alleged the allegation of Siakari with Mst. Shabana. The complainant failed to substantiate it through confidence inspiring evidence. Although it is not incumbent upon prosecution to take plea of motive. The conviction can be awarded in the case where no motive is alleged, but once motive is alleged by the complainant it must be proved and in case of failure the accused would be entitled for the benefit of doubt. The prosecution failed to produce ocular or documentary evidence to prove the motive. Mere verbal assertion could be taken on gospel truth. Reliance is placed on Qudrat Sher v. Mst. Mumtaz 2016 YLR 787.

8. The prosecution alleged that nine empties were recovered from the place of occurrence vide Ex: P/2-C, whereafter, after arrest of convict/appellant, on his pointation recovered crime weapon vide Ex:P/5-C. The place of recovery was not in exclusive possession of appellant. The empties and crime weapon were dispatched together to FSL, which lost its evidentiary value. Even otherwise the same were dispatched to FSL after twenty days of arrest of the appellant. Although the recovery was effected on pointation of appellant from an open place, therefore, Article 40 of Qanun-e-Shahadat Order, 1984 is not applicable. Reliance is placed on Abdul Manan v The State 2017 PCr.LJ 1198.

9. The prosecution witnesses PW-2 and PW-3 are residents of Jacobabad Sindh, whereas they failed to explain their presence on the scene of occurrence. Needless to mention here that the referred witnesses are close relatives of complainant and deceased. They were chance witnesses.

10. Now adverting to the statements of PW-2 and PW-3. whose statements were recorded on the fateful day; whereafter on 31st October, 2017 the complainant submitted an application with affidavit with the assertion that on 29th October, 2017 they were taking tea in a hotel, where a person came to whom they identified to be the companion of accused who committed murder of his nephew. They inquired the name from the people sitting in the hotel, who disclosed his name as Shaukat. Thereafter, submitted supplementary application, which was produced as Ex: P/2-B. While subsequently PW-2 and PW-3 did not record their statements, but during trial they were also narrated the contents of supplementary application of the complainant, as such the witnesses have made dishonest improvements in their statements. If any improvement made during trial, the statement of witness lost evidentiary value. Reliance is placed on Ayub Masih v. The State PLD 2002 SC 1048.

11. The complainant registered FIR at 6:15 p.m. The distance of place of occurrence is 10 kilometer from Thana. PW-6 (Investigating Officer) stated that he along with police officer proceeded to the place of occurrence at 6:30 p.m., reached there at 6:50 p.m. While PW-2 stated that the police reached at the spot at near about 6:00 p.m., remained there for 45 minutes, meaning thereby that the witness PW-6 stayed till 6:45 p.m., which clearly controvert the version of PW-2. The comparison of statements of witnesses establishes the fact that the statements of private witnesses are contradictory to each other. If considered the version of PW-2 then the Ex: P/2-A, Ex: P/2-B and Ex: P/2-C were prepared before reaching the Investigating Officer at the spot, as such due to above mentioned contradictions their statements could not be termed to be of worth credence, thus in no way the statements of such witnesses is helpful to the case of prosecution. A serious irreparable dent and damage has been caused to the case of prosecution.

12. PW-6 Investigating Officer stated that the mouth of the deceased was open, while the three ocular witnesses have narrated otherwise. The presence of witnesses is doubtful. The witnesses stated that the occurrence was taken place near the house of complainant. The corps was remained outside the house for three hours. The conduct of the witnesses was unnatural, did not appeal to prudent mind. The presence of eye-witnesses is doubtful. Reliance is placed on Muhammad Rafique v. The State 2019 SCMR 1068.

13. The prosecution has failed to establish the charge against the appellant beyond shadow of doubt. The contradictions in the statements of witnesses as well as dishonest improvements cannot be taken lightly which itself sufficient to disbelieve the ocular testimony. The learned trial court while delivering the impugned judgment has failed to extent benefit of doubt to the appellant. The Honorable Supreme Court held in case of Atta Muhammad v. The State, reported in 1999 SCMR 594 as under: "The finding of the guilt should be rested surely and firmly on the evidence produced in the case and plaint inference that may irresistibly be drawn from the evidence. If a criminal case is to be decided merely on surmises and conjectures or high probabilities to prove the guilt of an accused, the golden rule of benefit of doubt to the accused which is deep-rooted in the country and has been dominant feature of administration of justice with consistent approval of Supreme Court, will be, reduced to naught." For the above reasons the appeal is accepted. The impugned judgment dated 31st October, 2018 passed by learned Sessions Judge, Jaffarabad at Dera Allah Yar is set aside. The appellant Muhammad Ali son of Habibullah is acquitted of the charge under sections 302(c), 34, P.P.C. in case pursuant to FIR No. 32 of 2017, Police Station Malik Muhammad Ali Shaheed, District Sohbat Pur. He be released forthwith if not required in any other case. These are the reasons of our short order made on 25th September, 2019. SA/156/Bal. Appeal accepted.