2022 PLP 1620 (YLR)

ABDUL HAMEED BALOCH, J.

Through this common judgment we intend to dispose of Criminal Acquittal Appeal No. (s) 111 of 2014 and Criminal Acquittal Appeal No. (s) 23 of 2018, as both the cases are arising out of the same incident.

2. Succinct facts of the case are that on 2nd October, 2013, case FIR No. 61 of 2013, under sections 302, 34 Pakistan Penal Code (P.P.C.) was registered with Police Station Shaheed Malik Muhammad Ali District Jaffarabad, on the report of one Muhammad Ilyas on the allegation that on the fateful night the complainant along with his brothers Muhammad Younas, Muhammad Yousaf, Muhammad Ayub were taking their mother in car to Jacobabad for treatment. The vehicle was driven by his brother Muhammad Younas. It was alleged that at 4:15 a.m. when they reached pucca road near Goth Shamsuddin they saw in the light of vehicle Abdul Karim, Ishfaq alias Munshi, Abdul Razzaq, Habibullah duly armed with Kalashnikovs were standing along with two motorcycles, who signaled to stop, on which his brother Muhammad Younas stopped the vehicle and the accused persons told that he (Muhammad Younas) will not be spared today and as soon his brother alighted from the car they made firing with Kalashnikov due to which his brother Muhammad Younas died at the spot. The motive alleged for the incident to be matrimonial dispute between the parties. With these allegations FIR was chalked.

3. After registration of FIR, the accused/respondent of Criminal Acquittal Appeal No. (s) 111 of 2014 were arrested and subjected to investigation and on completion thereof challan of the case was submitted before the court of learned Additional Sessions Judge, Dera Allah Yar (trial court).

4. After legal formalities and full dress trial, the learned trial court vide judgment dated 28th August, 2014 (impugned judgment) acquitted the accused/respondents Ishfaq and Abdul Razzaq of the charge, hence the appellant has filed Criminal Acquittal Appeal No.(s) 111 of 2014 before this court.

5. Thereafter, the accused/respon-dent Habibullah was arrested and challan to his extent was submitted before the trial court and after legal formalities and full dress trial, the learned trial court vide judgment dated 16th June, 2017 (impugned judgment) acquitted the accused/ respondent Habibullah of the charge, hence the appellant has filed Criminal Acquittal Appeal No. (s) 23 of 2018 before this court.

6. Heard and perused the record. The prosecution case revolved around ocular account of PW-1 Muhammad Ilyas (complainant), PW-2 Muhammad Yousaf and PW-3 Mst. Mehnaz. PW-1 in his deposition stated that he along with Muhammad Yousaf and Muhammad Ayub were going to Jacobabad by a car for treatment of their mother. Meanwhile acquitted accused/respondents came there on two motorcycles, identified by them in the light of car, who got stopped the car and made firing upon his brother Muhammad Younas due to which he sustained injuries and died at the spot. The witness further stated in cross-examination that firing continues for 3/4 minutes. They fired from the distance of two feet. 2/3 bullets hit the deceased. He informed the Investigating Officer Nisar on telephone who came at the spot and took him to police station. The Investigating Officer reached at the spot at 6:30 a.m. The Fard-e-Biyan was written at the spot by Nisar. Nisar remained at the spot for two hours. He admitted that except deceased no one sustained any injury. The deceased was taken to hospital in a private datsun vehicle.

7. PW-2 Muhammad Yousaf in cross-examination stated that firing was made from a distance of 4/5 paces. He denied the suggestion that no bullet hit the vehicle. No person from the nearby Goth came to the spot. His brother proceeded for registration of FIR with a vehicle. Two bullets hit the vehicle. The dead body was taken to police station.

8. PW-3 Mst. Mehnaz deposed that the complainant went police station for registration of FIR. They along with Muhammad Yousaf, Muhammad Ayub remained at the spot. The witness in cross-examination stated that 15/16 bullets were fired. Three bullets hit the deceased. The complainant went in the vehicle of Muhammad Nawaz for registration of FIR. No person came from nearby village. The firing continued for 15/16 minutes. Two bullets hit the vehicle.

9. PW-7 Nisar Ahmed SI/ Investigating Officer in cross-examination stated that when the complainant came to police station for registration of FIR he was present there. The complainant came on motorcycle. When they reached at the spot except mother and brother of the deceased no one was present. He admitted the suggestion that no bullet hit the vehicle. The statements of the ocular witnesses are not in line with each other rather contradicted on material point. Such material contradictions, improvements, omission and discrepancies cannot be overlooked. The medical evidence is contracted ocular account. The ocular witnesses stated that 2 or 3 bullets hit the deceased, while the M/C Ex: P/6-A disclosed that only one bullet hit the deceased. Reliance is placed on the case Muhammad Imran v. The State 2020 SCMR 857, wherein it was held: "

5. Ocular account, prosecution's mainstay, has been furnished by the witnesses, found by us out of tune with one another; Fazal Abbas (PW-4) has been silent about material details of the incident, otherwise succinctly related by the complainant whom the witness statedly accompanied to the venue. On the contrary, according to his statement, in examination-in-chief the witness appears to have arrived at the scene after the deceased had already fallen. Umar Daraz (PW-9) is prosecution star witness; according to him, Khalid Shah and Jahanzeb, co-accused, held iron bars whereas the petitioner carried a Churri, a position that is not shared by the other witnesses; they are also discrepant on the manner and mode of their arrival at the crime scene; according to Umar Daraz PW, they reached the scene on a motorbike whereas remainder of the witnesses are reticent as to how they covered the distance; there is no unanimity amongst them on the passage, they took the deceased to the hospital. These contradictions, viewed in the retrospect of arrival of the witnesses exactly at a point of time when the petitioner started inflicting blows to the deceased with their inability to apprehend him without there being any weapon to keep them effectively at bay, cast shadows on the hypothesis of their presence during the fateful moments. It was an odd hour of night without any source of light as admitted by no other than Fazal Abbas (PW-4) himself. Petitioner's mother Mst. Ramseela was medically examined under a police docket at 10:30 p.m. on 17.8.2015; she was noted with an incised wound on the palmer aspect of her right hand; wound though not extensive, nonethe-less, suggests a happening incompatible with the case set up in the crime report, a possibility further strengthened by a Rapat of even date incorporated in the daily diary at the same police station. Despite defence's inaptitude to clearly put-forth its case, a different story is spelt out from prosecution's own case. Argument that occurrence did not take place in the manner as alleged by the witnesses does not appear to be unrealistic. Co-accused, blamed to have clutched the deceased to facilitate the petitioner have since been acquitted on the same evidence without reproach. Recovery of Churra/dagger from inside Darbar, that too, upon the disclosure of a co-accused, fails to inspire confidence so as to be received as independent corroboration. It is by now well settled that benefit of a single circumstance, deducible from the record, intriguing upon the integrity of prosecution case, is to be extended to the accused without reservation; the case is fraught with many. It would be unsafe to maintain the conviction.

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10. The ocular account was furnished by the brother and mother of the deceased. The witnesses in their statements stated that besides them one Muhammad Ayub was along with them, but his statement was not recorded. The alleged ocular witnesses stated that there was enmity with the accused/respondents. In such situation the statements of interested witnesses required independent corroboration. Said Muhammad Ayub was independent witness. He was not produced by the prosecution for the reason best known to them. Though the prosecution is not bound to produce each witness mentioned in the calendar of witnesses. However, if a material witness is withheld then under the provisions of Article 129 Illustration (g) of Qanun-e-Shahadat Order, 1984 presumption can be taken against the prosecution that if such witness produced would have not supported the prosecution case. Reliance is placed on the reported judgment of this court Muhammad Salah v. The State 2018 YLR 283, in which it was held: "

12. According to the statements of PW-1 and PW-3, the witness Abdul Karim son of Abdul Wahab was also accompanying them at the relevant time, but the evidence of said witness was withheld by the prosecution without any plausible reason or justification, whereas the evidence of said witness 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, therefore, a presumption under Illustration (g) of Article 129 of Qanun-e-Shahadat Order, 1984 can fairly be drawn that had the said witness been examined in the Court his evidence would have been unfavourable to the prosecution. Reliance in this regard is placed on the case of Hunar Shah alias Anar Shah and another v. Khan Zad Gul and another 2014 YLR 1180. The relevant portion is reproduced herein below: "The inference regarding non production of this important independent witness would go against the prosecution that had he been produced his statement wouldn't have been favourable to prosecution. It would also reflect that prosecution wanted to suppress material evidence." Similar view was also taken in the case of Khalid alias Khalidi and 2 others v. The State 2012 SCMR 327, whereby it was held as under: "The prosecution has not, for the reasons best known to it, produced Mst. Jannat Bibi, an injured witness, from which an inference could be drawn against the prosecution that if she is produced she would have not supported the prosecution version. We, therefore, find that the ocular account is not of such a character which could be relied upon in order to convict a person on a capital charge when the same is not corroborated by any other independent evidence as the presence of both the eye-witnesses at the place and time of occurrence is not established as their statements have been disbelieved by the learned appellate court regarding Sultan Mehmood acquitted accused"

11. Now adverting to another aspect of the case. The ocular witnesses stated that the accused/respondents fired upon the deceased Muhammad Younas, but could not harm the witnesses. The question is why the accused/respondents spared the witnesses, only targeted Muhammad Younas. The witnesses were not armed. As per witnesses firing was made from 2/3 feet. It does not appeal to logic that killing a person in presence of brother and mother the accused would not attempt to cause any injury/kill the prosecution witnesses leaving them for evidence to be hanged. Reliance is placed on the case of Muhammad Farooq v. The State 2006 SCMR 1707 and Dholu v. The State 2002 PCr.LJ 690.

12. So far as motive is concerned. Though the prosecution is not under legal obligation to set up a motive. Ordinarily the absence or weaknesses of motive in murder case cannot be considered to justify the acquittal. It is well settled that once a motive is set up it is imperative for the prosecution to prove the same. On failure whereof adverse inference can be dawn against the prosecution. Reference is made to the cases of Muhammad Khan v. Zakir Hussain PLD 1995 SC 590 and Hakim Ali v .The State 1971 SCMR 432.

13. As per prosecution on the disclosure of accused/respondent Ishfaq the crime weapon SMG was recovered from his house lying in iron box. Though under Article 40 of the Qanun-e-Shahadat Order, 1984 the recovery on pointation of accused is admissible in evidence. It would be appropriate to reproduce Article 40 Qanun-e-Shahadat Order, 1984: "Article-40:- How much of information received from accused may be proved. When any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved,"

14. The above referred Article contain two parts, one on the basis of disclosure by the accused during custody is admissible, while in second part the prosecution must prove the recovery independently. In the instant case the prosecution has failed to prove the recovery of SMG independently. The prosecution has not recorded statement of any person from the locality whether the house belong to accused, secondly the witness stated that the key of iron box was produced by an old lady, while the Investigating Officer stated that the key was handed over by a child. Even otherwise it could not be believable that after committing murder one can keep SMG in iron box of his house. The recovery of the crime weapon can only be piece of supporting evidence. Reference is made to the case of Hayatullah v. The State 2018 SCMR 2092.

15. It appears from Ex: P/7-F and Ex: P/7-G that the crime empties and blood stained earth received to Expert for examination after more than one month. The prosecution has not explained for what reason the above articles were kept in police station. Even the prosecution has not recorded the statement of any official in order to prove whether the case property was in safe custody or not. Such delay destroyed the evidentiary value of positive report of Expert. Reliance is placed on the case Ali Sher v. The State 2008 SCMR 707, wherein it was held: "

11. The crime-empties having been allegedly found at the place of occurrence and having been retained for so long the police station and having been sent to the F.S.L. along with the crime weapons and that also 12 days after the alleged weapons of offence had been allegedly recovered destroys and evidentiary value of the said piece of evidence. These recoveries, therefore, cannot offer any corroboration to the ocular testimony."

16. The medical evidence is Expert opinion which has always been treated to be confirmatory in nature. The medical evidence may confirm ocular account with regard to set of injuries, nature of injuries, kind of weapon used in the commission of offence, but it cannot connect the accused with the crime. Reliance is placed on Faryad Ali v. The State 2008 SCMR 1086.

17. It is well settled that for giving benefit of doubt it was not necessary that here should be numerous circumstances creating doubt, if there is one circumstance creating reasonable doubt in the mind of prudent person, same would be sufficient for acquittal of accused, not as a matter of grace or concession but as a matter of right. Reliance is made to the case of Haji Muhammad Naeem v. Muhammad Younas 2017 PCr.LJ 1113 Balochistan wherein it was held: "

18. If the entire prosecution evidence is taken into consideration together, it would become crystal clear that the entire prosecution evidence shows that there is no solid or concrete evidence against the accused/respondents connecting them with the commission of alleged offence. The trial Court after proper appreciation of evidence in its true perspective has rightly acquitted the accused-respondents of the charge. It is a settled principle of law that double presumption of innocence is attached to the order of acquittal and interference is unwarranted unless the acquittal is arbitrary, capricious, fanciful or against the record. In the instant case the order of acquittal passed by the trial Court is neither arbitrary, capricious, fanciful nor contrary to the evidence on record, warranting interference by this Court." In view of above discussion the Criminal Acquittal Appeal No. (s) 111 of 2014 and Criminal Acquittal Appeal No. (s) 23 of 2018 being bereft of any merit are hereby dismissed. JK/30/Bal. Appeals dismissed.