2005 P Cr (PLP)

Appellant Fahad has filed instant Criminal Appeal No.826 of 2004 to assail the judgment dated 2-10-2004, recorded by learned Sessions Judge/Zilla Qazi, Swat, by which the appellant was convicted under section 302(c), P.P.C. and sentenced to suffer 15 years' R.I. and to pay compensation to the extent of Rs.1,00,000 to the legal heirs of deceased Faramosh or in default thereof to' undergo six months R.I. Benefit of section 382-B, Cr.P.C. was accorded to the appellant.

2. The crime in question is alleged to have taken place on 5-10-2002 at 15-00 hours, near the house of complainant Faramosh in Deh Gortai, in the precincts of Police Station Ghaligai. The report was lodged the same day by the complainant himself at 16-00 hours at Saidu Group of Hospitals, Swat and it was recorded by P.W. Ghulam Nabi, Additional S.H.O., per F.I.R. No.769 dated 5-10-2002 under section 324; P.P.C. The victim yielded to the injuries and expired in the hospital.

3. The prosecution story in brief is, that on the fateful day complainant Faramosh, came out of his house to discharge urine. In the meanwhile, appellant Fahad armed with pistol appeared and fired at the complainant, as a result whereof complainant was hit on right side of abdomen, right shoulder and backside near neck. The motive, as disclosed in the F.I.R., was that about three years prior to the incident there had been altercation between complainant and the appellant and despite effecting compromise appellant was nursing grudge and was on a look to take revenge of his insult.

4. On the same day, Gran Badshah, and Akhtar Munir were brought to Barikot hospital in injured condition. Faramosh complainant in this case was alleged to have fired at them effectively during an altercation.

5. During the course of investigation, two empties of .30 bore were recovered from the spot. The appellant was arrested the same day and was put to trial in two cases i.e. Sessions Case No.17/8 of 2003 under section 302, P.P.C. and Case No.18/8 of 2003 under section 13 of Arms Ordinance, 1965. Former case was in respect of murder of Faramosh deceased and the latter case was in respect of recovery of one pistol from the appellant, claimed weapon of offence. The appellant was produced before P.W. Muhammad Hussain, Illaqa Qazi, Swat on 9-10-2002, who recorded confessional statement of the appellant.

6. Dr. Jehangir examined injured Faramosh injured on 5-10-2002 and found fire-arm injuries on his person. Dr. Nisar Ali performed operation of the injured.

7. At the trial, prosecution produced 10 witnesses to substantiate the charge. Muhammad Farosh, brother and Gul Zarin, brother-in-law of Faramosh deceased furnished eye-witness account of the occurrence and charged the appellant for the commission of crime.

8. On closure of the prosecution evidence, the accused in his statement under section 342, Cr.P.C. denied the prosecution allegations and claimed to have been falsely charged. In response to a question that on 5-10-2002 at 15-00 hours, he caused injuries to Faramosh, he stated: -- urdu 1622

9. The accused appeared as his own witness under section 340, Cr.P.C. and produced Gran Badshah in defence.

10. Qazi Muhammad Anwar, Advocate, learned counsel for the appellant, contended that case against the appellant is false and he has been implicated with mala fide intention on the part of the police at the behest of complainant party; that the case of prosecution is pregnant within numerable infirmities, and real doubts of substantial nature float on the surface of the evidence and that the learned trial Judge has failed to apply his judicial mind to the facts of the case which has resulted in complete failure of justice.

11. Contrarily, Mr. Muhammad Saeed Khan, learned Additional Advocate-General for the State assisted by Mr. Muhammad Anwar, Advocate, for the complainant, supported the impugned judgment and maintained that the material on record having been properly appreciated, the impugned judgment is unexceptionable and hardly require interference of this Court.

12. I have heard at length the arguments of learned counsel for the parties with reference to the material on record.

13. Needless to emphasize that while passing an order of conviction of an accused for murder, the Court has not only to be satisfied that the murder has been committed but it must also be satisfied that accused committed the murder. Before recording an order of conviction all the facts and circumstances of the case must be taken carefully into consideration and the golden principles of criminal justice must be borne in mind that in case of murder the onus of proof always lies upon the shoulders of the prosecution, and the case must be proved against the accused beyond any reasonable doubt.

14. In the instant case, I find that the prosecution has lawfully failed to establish case against the appellant beyond any shadow of doubt. The case against the appellant is totally of no evidence and learned trial Judge has failed to apply his judicial mind to the facts of the case. The manner in which the trial Judge has proceeded in the case is violative of the principles governing safe administration of criminal justice. Conviction can be based on the evidence which connect the accused person with the offence beyond any reasonable doubt and in reaching this conclusion evidence has to be of high quality and good standard which is lacking in this case. The trial Court has overlooked the material favouring the appellant and discarded the same in a manner uncalled for and unwarranted in law, as such conclusion of the trial Judge is not maintainable. It may be observed here that in Sessions Case No.17/8 of 2003, registered under section 302, P.P.C. trial Judge has concluded that appellant was possessing pistol and has fired with the pistol, which was recovered from him at the time of arrest but in his judgment in Case No.18/8 of 2003, registered under section 13, Arms Ordinance, 1965, the trial Judge has not believed the story of the arrest of the appellant with pistol or recovery from him of the weapon of crime and has acquitted him in the said case. Further the trial Judge has used confession against the appellant which under the law cannot be treated as piece of evidence against the appellant as in said confession in fact appellant has not confessed commission of any crime. Similarly his statement on oath under section 340, Cr.P.C. has been recorded in which he has denied his involvement in the crime and there is no cross examiantion to that effect. It may not be out of place to mention here that learned trial Judge has not believed dying declaration and testimony of P.Ws. Muhammad Farosh and Gul Zarin. Once dying declaration and statements of the said witnesses are excluded from consideration as piece of evidence, then no evidence is left to associate the appellant with the commission of offence. The medical evidence being confirmatory in nature would be of no avail to the prosecution.

15. In view of the above, I find no difficulty in holding that the prosecution has miserably failed to prove its case against the appellant. The trial Court has failed to assess the evidence in a legal and proper manner, thus, conclusion drawn by the Court below is contrary to the evidence on record and against the settled norms laid down by the superior Courts from time to time. Resultantly, I allow this appeal, set-aside the impugned judgment and acquit the appellant of the charge. He would be released from jail forthwith, if not required in any other case. H.B.T./466/P Appeal accepted.