2003 PLP 777 (YLR)

(5) Entry wound on the left lateral buttock measuring 1/4" x 1/4" with its exit just below the entry. It measures 2" wide and 2" in bridth. (6) An entry wound on right lateral chest with no exit measuring 1/4" x 1/4". Both lungs damaged, major vessels on the left, plearae both lungs damaged. Empty and intestine contain faecal matter. Approximated time between injury and death, is one hour and approximated time between death and post‑mortem is four hours. A case of fire‑arm injury leading to damage to vital structures of the body resulting into profused external and internal bleeding with resultant shock and cardiorespiratory arrest and subsequently death of the victim.

8. When examined under section 342, Cr.P.C. the convicts refuted the prosecution allegations and claimed to have been involved falsely. Akbar Ali appellant, in answer to a question regarding abscondence stated that he was evading arrest on account of fear and false involvement and subsequently he surroundered before the police. He maintained that the prosecution witnesses are interested and hostile towards him which have prompted them to depose falsely against him. The appellant and co‑convicts neither made any statement under section 340(2), Cr.P.C. nor produced any evidence in their defence.

9. At the conclusion of the trial, the learned Court found the prosecution case against the appellant and co‑convicts to have been proved beyond reasonable doubt and thus they were convicted and sentenced as mentioned and detailed above.

10. We have heard in detail Mr. Khawaja Muhammad Khan Gara, Advocate for the appellant and Mr. Imtiaz Ali, Additional Advocate‑General for the State assisted by Mr. Suhail Akhtar, Advocate learned counsel for the complainant. We have also gone through impugned judgment and evidence on record with their assistance.

11. Learned counsel for the appellant seriously criticized impugned judgment and submitted that the trial Court has fallen in error while passing an order of conviction and sentence. He maintained that ocular evidence stands falsified/contradicted by medical evidence and site plan and that motive has not been established satisfactorily. The learned counsel also contended that claim of complainant Itbar Khan and his brother Murad Khan P. Ws. having accompanied their father to the venue of occurrence and seen the occurrence is belied by host of circumstances and learned trial Court had no justifiable reason to place implicit reliance on their testimony and make the same basis of conviction of the appellant. Additionally he urged that the F.I.R. was lodged with delay and the time was consumed in consultations and deliberations. He further submitted that the appellant did not abscond and he avoid arrest on account of fear and false implication. Concluding the arguments the earned counsel asserted that the instant case is of an unseen occurrence and he appellant was falsely implicated on mere suspicion. The prosecution story is based on surmises and conjectures and the prosecution has failed to prove its case beyond reasonable doubt. To augment the contentions, he placed reliance on the following judgments: ‑‑ (i) Sadiq and another v. The State (1993 SCMR 1864). (ii) Taj Muhammad v. Pesham Khan and others (1986 SCMR 823). (iii) Mesal and another v. The Crown (1971 SCMR 239). (iv) Iqbal v. State (1986 SCMR 982). (iv) Riaz Masih alias Mithoo v. The State (1995 SCMR 1730); and (vi) Obaidullah and another v. The State (PLD 1986 Peshawar 150).

12. On the contrary, learned Additional Advocate‑General assisted by learned counsel for the complainant, supported the impugned judgment to the extent of conviction of appellant and co‑convicts and maintained that substantial sentence prescribed by law has not been awarded which has resulted in miscarriage of justice. He also contended that the amount of compensation is grossly inadequate and the same may be enhanced appropriately so as to meet the ends of justice. He relied on Yaqoob Shah v. The State (PLD 1976 SC 53).

13. The prosecution case mainly rests on the testimony of P.Ws. Itbar Khan (complainant) and Murad Khan, medical evidence, motive recoveries and abscondence of the appellant.

14. Itbar Khan (P.W.3) reiterated the version disclosed in the F.I.R. (Exh. P.A., and stated at the trial that on the day of occurrence i.e. 27‑7‑1994 at 5‑30 a.m. he alongwith his father Khaista Khan deceased and brother Murad Khan P.W. were proceeding to the fields of Arbab Najibullah for getting bricks. On the way Murid. Raham Dad, Wali Khan sons of Abdur Rehman, Akbar Ali son of Anwar and Safdar son of Mukarram armed with Kalashnikovs appeared and started firing at them as a result of which Khaista Khan was hit and died ors the spot. However, he (complainant) and? P.W. Murad Khan escaped unhurt. After firing the accused decamped from the spot. Explaining the motive, he stated', that about one year and a half prior to the occurrence, one Adam son of Abdur Rehman was murdered for which the complainant and deceased were charged. Hs also stated that about two years prior to the incident Adam son of Abdur Rehman had: kidnapped his (complainant) sister on account of which both the parties were nursing: grudge. It is in his cross‑examination that the accused had fired at his father from the fron! from a distance of ten paces. The deceased was five paces ahead of him at the time of firing. He (complainant) was one pace ahead of his brother Murad Khan P.W. Faqir Muhammad and other co‑villagers reaches: the spot after the occurrence and they were duly informed.

15. Murad Khan (P.W.4) substantiates the prosecution story and charged the appellant, co‑convicts and absconders for the murder of his father by firing with Kalanshnikovs. It is in his cross‑examination that the instruments meant for making mud bricks lying in the fields were pointed out by him to the Investigating Officer at the time of spot inspection. He denied the suggestion that at the relevant time he was not present at the spot and charged the accused falsely.

16. In Niaz v. The State (PLD 1960 SC 387) the following principles were laid down for appreciation of evidence of an interested witness, who claims to be an eye‑witness of an occurrence:‑‑ "Whenever interested persons claiming to be eye‑witnesses of an occurrence charge persons against whom they have some motive for false implication, with the commission of the offence, the first question to be considered is whether in fact they saw the occurrence and were in a position to identify the culprits. If there be no reason to doubt that they in fact witnessed the occurrence and were in a position to identify the offenders, the further question arises as to whether they can be relied upon for convicting the accused without corroboration. In cases where such interested witnesses charge one person only with, the commission of the offence, or where the number of persons whom they name does not exceed that which appears from independent evidence or from circumstances not open to doubt to be the true number‑of culprits, their evidence may, in the absence of anything making it unsafe to do so, be accepted without corroboration, for, substitution is a thing of rare occurrence and cannot be assumed, and he who sets up the plea of substitution has to lay the foundation for it. But if the Court finds that the number mentioned by interested persons may have been exaggerated their word cannot be made the basis of conviction and the Court will have to look for some additional circumstances which corroborates their testimony. This circumstance need not be such that it can of its own probative force bring home the charge to the accused. it should, however, be a circumstance which points out the inference that the particular accused whose case is being considered did participate in the commission of the offence. The force that such circumstance should possess in order that it may be sufficient as corroboration must depend on the particular circumstance of each case, however, the circumstance itself must be proved beyond all reasonable doubt. This rule of prudence requiring corroboration of partisan evidence has generally been accepted `by Courts and was accepted by all the Judges of the Federal Court of Pakistan in Ashraf and others v. The Crown (1955 FCR 93) although the learned Judges were not in agreement as to what constituted corroboration. " Again in the case of Sardar Khan v. State (1998 SCMR 1823) the ‑following principles were laid down:‑‑‑ "

7. Before considering the above contentions on merits, it would be appropriate to state here first, some of the broad legal principles enunciated by this Court which should be kept in mind while deciding a case involving capital punishment. One such principle is that, if an interested witness claiming to be an eye‑witness charges a person with the commission of an offence, the first thing which the Court has to determine is, whether he saw the occurrence and was in a position to identify the accused and secondly whether he should be believed for convicting the offender without corroboration. If the interested witness has charged only one person with the commission of offence or has charged more than one person and the number of persons charged by him appear to be reasonable from the circumstances of the case, then in the absence of anything in the evidence which rendered it unsafe to rely on his evidence his evidence is to be accepted without corroboration as substitution is a thing of rare occurrence and cannot be assumed readily and he who asserts substitution must lay foundation for it. But if the Court finds that the interested witness has exaggerated the number of accused, the Court will insist for corroboration of his testimony from some additional circumstances in the case. (See Niaz v. State PLD 1960 SC 387). The next question arises, in what manner the corroboration to the testimony of the interested witness is to be sought by the Courts before relying on it for conviction. The corroboration to the testimony of an interested witness need not always be from an independent witness supporting the story put forward by the interested witness. Corroboration may be sought from any circumstance in the case which would satisfy the mind of the Court that the witness has spoken the truth. What would be these circumstances, is not possible to lay down with precision as these would vary from case to case according to the facts and circumstances of each case. Corroboration in the case of an interested witness need not be of the same probative force as in the case of an accomplice. (See Nazir v. State PLD 1962 SC 269).

8. An interested witness in a criminal case is one, who has motive to involve the accused falsely in the case. Therefore, mere friendly relation or relationship of the witness with the deceased or complainant party is no ground to discard his evidence describing him as an interested witness. (See Iqbal alias Bhala v. State 1994 SCMR 1).

9. The maxim ' falsus in uno falsus in omnibus' has not been accepted by the superior Courts in Pakistan as having universal application. Therefore, it does not, necessarily, follow that where the Court does not accept the evidence of a witness against some of the accused in a case, the Court cannot accept his evidence against the other accused. The Court often sifts the grain from the chaff while accepting the evidence of a witness against some of the accused in case and at the same time not relying on his version against other accused in the case. (See Muhammad Ahmed v. State 1997 SCMR 89 and Khairu v. State 1981 SCMR 1176)."

17. We have examined the contentions raised by learned counsel for the parties and find ourselves in agreement with learned counsel for the appellant that the impugned conviction cannot be sustained. We agree with the learned counsel that complainant Itbar Khan and his brother Murad Khan P. Ws. were not present at the spot and had not seen the crime in question. The claim of the mentioned witnesses having accompanied their deceased lather at the relevant time and seen the accused person firing at the deceased, is belied by a host of circumstances and creates suspicion in one's mind regarding their presence at the spot. The medical evidence and the site plan also negate the eye‑witness account furnished by the complainant and his brother. The accused are alleged to have fired at the complainant party from a distance of ten paces resulting into the murder of the deceased. The complainant and his brother are, however, stated to have escaped unhurt. It is difficult. to believe that the accused armed heavily with sophiscated weapons like Kalashnikovs, resort to firing on the complainant party from a distance of about ten paces and the firing continued for some time but only one of the members of the complainant party is statedly hit and the remaining shown near the victim, are escaped unhurt. Undoubtedly the complainant and vlurad Khan P.Ws. do not claim having taken shelter behind boulder or tree. Again, the deceased and the above named witnesses are stated to have gone to the spot for preparing/extracting raw bricks. P. W. Aurad Khan has admitted in his cross examination that the instruments used in the preparation of bricks and the prepared bricks were shown to the Investigating Officer at the time of spot inspection but no such recovery has been effected from the spot. Immediately after the occurrence Faqir Muhammad and other co‑villagers are stated to have been attracted to the spot. According to the complainant they were duly informed about the incident. Surprisingly no independent and disinterested witness from the locality has been produced at the trial to lend corroboration to the ocular testimony of the complainant and his brother. In absence of such corroboration we are not prepared to rely on the ocular testimony of complainant and his brother and accept the same as gospel truth. It is settled proposition of law that prosecution must produce best kin d of evidence evidence to establish accusation against accused facing trial.

18. For the purpose of giving benefit of doubt to an accused more than one infirmity is not required, a single infirmity creating reasonable doubt in the mind of a reasonable and prudent mind regarding the truth of the charge makes the whole case doubtful. Merely because the burden is on the accused to prove his innocence it does not absolve the prosecution from its duty to prove its case I against the accused beyond any shadow of doubt. In criminal case the burden of proving its case rests entirely on the prosecution. The prosecution is duty bound to prove the same beyond any shadow of reasonable doubt. It is a settled rule of law that it the testimony of relative is corroborated from circumstantial evidence or other pieces of evidence then their testimony cannot be thrown out of consideration on the sole ground of relationship. An interested witness is one who has a motive for falsely implicating an accused as a partisan and is involved in the matter against the accused. Friendship or relationship with the deceased will not be sufficient to discredit a witness particularly when there is no motive to falsely involve the accused. In the present case, complainant Itbar Khan and Murad Khan P. Ws. are real sons of the deceased. Their claim of having accompanied the deceased at the relevant time and seen the accused firing at the deceased, has not been believed. The locale and dimension of injuries found on the 1, person of the deceased and positions of the accused, deceased and the eye‑witnesses indicated in the site plan, clearly tend to G suggest that the alleged eye‑witnesses were not present at the vanue of occurrence and had not witnessed the incident. They have, also not been able to justify their presence at the spot. So far as the motive is concerned, prosecution has not been able to show as to what actuated the appellant to take the life of the deceased when he had no direct motive to share hand with the co‑convicts and the absconders in .the commission of crimes. The evidence on record is hardly of a nature‑of a calibre on the basis of which appellant could have been convicted. Since there is no credible evidence to support the prosecution case, abscondence itself would not be sufficient to sustain conviction of the appellant. It has been repeatedly held by Oh e superior Courts that mere abscondence should not be enough to sustain conviction of the accused appellant. A person who has been named as a murderer, whether rightly or wrongly, usually makes himself scarce as held in Siraj Din v. Kala and another (PLD 1964 SC 26) and Taj Muhammad v. Pasham Khan and others 1986 SCMR 823).

19. Adverting to Criminal Miscellaneous No. 98 of 1999 moved on behalf of Itbar Khan complainant, we find that co‑convicts have been awarded the substantial sentence prescribed by law and no case for enhancement of either sentence or amount of compensation has been made out warranting interference of this Court. Resultantly, Criminal Miscellaneous No. 98 of 1999 fails which is hereby dismissed.

20. For reasons detailed above, we accept the appeal, set aside the order of the learned trial Judge dated 25‑3‑1999 and acquit the appellant of the charges. He shall be released forthwith, if not required to be .detained in any other case. S.M.A.H./652/P Appeal accepted.