2015 PLP 1022 (MLD)

ASSADULLAH KHAN CHAMKANI, J.

This criminal appeal is directed against the judgment dated 19-7-2010 passed by learned Sessions Judge/ Izafi Zila Qazi, Dir Upper, whereby Yar Muhammad, the appellant, involved in case FIR No. 227 dated 23-12-2007 under sections 302/34, P.P.C. Police Station, Barowal, was convicted and sentenced as under:-- Under section 302(b), P.P.C. to life imprisonment, with payment of compensation of Rs. 1,00,000 to the legal heirs of the deceased under section 544-A Cr.P.C. or in default to suffer SI for six months with benefit of section 382-B, Cr.P.C.

2. Facts of the case are that on 23-12-2007 Gohar Ali reported to police in the house of deceased Nadar Khan that on the day of occurrence he along with his uncle Nadir Khan after performing "mughrab" prayer was on the way to his house, when at about 17.30 hours, from the field firing started, as a result of which his uncle was hit and died on the spot. Accused Yar Muhammad and Gul Muhammad sons of Shah Zareen were seen by him while decamping from the spot. Motive for the occurrence was previous blood feud enmity. The report of complainant was reduced into writing in the shape of Murasilla and sent it to Police Station for registration of the case and, as such, the above referred FIR was registered.

3. At the request of legal heirs of deceased, the autopsy of the deceased was not conducted. After investigation of the case, complete challan in the case was submitted under section 512, Cr.P.C. On the arrest of accused-appellant Yar Muhammad, supplementary challan against him was submitted. The learned trial court after observing legal formalities under section 265-C, Cr.P.C. charge sheeted the accused-appellant to which he pleaded not guilty and claimed trial. The prosecution produced eight witnesses. After the close of prosecution evidence, accused-appellant was examined under section 342, Cr.P.C. wherein he claimed to be innocent and false implication. The learned trial court after hearing the arguments, convicted and sentenced the appellant-convict under section 302(b), P.P.C., as stated above, hence, the instant appeal as well as criminal revision No. 156/2011.

4. Learned counsel for the appellant argued that the story advanced by the prosecution was not established by the ocular account furnished by Gohar All P.W.5 and Maida Grana P.W.6, as their statements are contradictory to each other, therefore, the same could not be believed. He argued that it is un-witnessed occurrence because the place of occurrence is situated in hilly area where after "mughrab" prayer the darks almost prevails, so, identification of the assailant was impossible. He argued that PWs 5 and 6 claimed to be the eye-witnesses of the occurrence were procured and they have given evidence in favour of the prosecution because of their close relationship with the deceased. He further argued that there are severe contradictions in the statements of PWs. He argued that the charge is exaggerated one because it seems to be act of a single person. Learned counsel further argued that the prosecution has miserably failed to prove its case against the appellant-convict beyond any shadow of doubt and the learned trial Court has wrongly and mistakenly assessed the evidence on record and passed the impugned judgment of conviction without any cogent evidence, therefore, the same is liable to be set aside and the accused be acquitted of the charge.

5. On the other hand learned DAG and counsel for the complainant argued that the occurrence took place after "mughrab" prayer when the dark was not yet prevailed. They further argued that the appellant along with his absconding co-accused are directly charged in the promptly lodged FIR, which is supported by the complainant P.W.5 and eye-witness, namely Maida Grana P.W.6, recoveries of blood stained earth from the spot, blood stained garments having corresponding cut marks and FSL result. They argued that the prosecution proved its case against the accused-appellant beyond any shadow of doubt and further submitted that, though, there are minor discrepancies in the evidence of prosecution but the same are not fatal to the prosecution case and supported the conviction and sentence awarded to the accused-appellant. He prayed for dismissal of the appeal and further submitted that there were no mitigating circumstances in the case, therefore, the punishment may be enhanced from life to death.

6. We have heard learned counsel of the parties and gone through the record with their valuable assistance.

7. According to prosecution story, the complainant and his uncle Nadir Shah were on the way home after offering "mughrab" prayer when firing started from the field as a result of which Nadir Shah was hit and died on the spot. The ocular account in the present case has been furnished by complainant Gohar Ali P.W.5 and Mst. Maida Grana P.W.6. We would like to appraise their testimony first of all to draw conclusion as to whether their presence on the spot at the time of occurrence has been established by the prosecution and whether their testimony is worthy of credence, believable and whether their conduct is natural and in accordance with the ordinary human conduct or otherwise. The complainant stated in his report that after firing and murder of deceased he saw accused Yar Muhammad along with his absconding co-accused Gul Muhammad when they were decamping from the spot, meaning thereby, the complainant himself has not seen the accused-appellant while firing at the deceased. Similarly, complainant has also not mentioned the name of Mst. Maida Grana as eye-witness of the occurrence in his first report. Had she been present on the spot at the time of occurrence, her name could have been mentioned in the first report by the complainant, which creates doubt regarding the presence of Mst. Maida Grana P.W.6 on the spot. Besides the above, the report regarding the occurrence was lodged on the spot where the dead body of the deceased was placed for about three hours till the arrival of police to the spot and complainant also admitted in his cross-examination that they had not informed the police regarding the occurrence. Had the complainant been present on the spot, definitely, he could have shifted the dead body of the deceased either to Police Station or Civil Hospital and made report regarding the occurrence but non-shifting of dead body to the Police station or hospital suggests that either they have not seen the assailants due to darkness or the occurrence has not taken place in the manner and mode as advanced by the prosecution. Moreso, there are also contradictions in the statements of eye-witnesses and the Investigating officer. The complainant stated in his cross-examination that the police came to the house at about 8.45/9.00 p.m. He further stated that at the time of report Maida Grana was present and the police recorded her statement. Mst. Maida Grana when appeared as P.W.6 she also admitted in her cross-examination that on the arrival of police she was present with the dead body of the deceased. She further stated that she made report to the police. However, Hayat Ullah Inspector P.W.8 categorically admitted that neither the name of Mst. Maida Grana is mentioned in the first report nor at the time of report she made appearance before him which further creates doubts regarding the story as given by the prosecution.

8. There is also abnormal delay in lodging of the report. The occurrence has allegedly taken place at 17.30 hours while report has been lodged at 20.45 hours after about three hours whereas the distance between place of occurrence and Police Station is 3/4 kilometer, therefore, it can be safely held that time was consumed in deliberations and consultations, particularly, when the deceased was lying for three hours in the house.

9. Admittedly, neither external nor internal examination of the dead body of the deceased was conducted. No doubt, in Malakand region people avoid to conduct internal examination of the dead body of the deceased but not hesitating to conduct external examination. Non-conducting of external examination of the dead body further makes the case of prosecution dubious because it could not be ascertained as to whether the deceased died due to fire arm injury or otherwise. According to inquest report and injury sheet there were two injuries on the left front chest and one on left arm caused due to fire arm but for the above injuries two persons have been charged for indiscriminate firing at him. In a case of this nature, it becomes imperative for the prosecution to establish through cogent and convincing evidence the participation of each individual accused in the commission of the crime but the prosecution has miserably failed to establish this fact through evidence at the trial. In the present case, as per prosecution story, no empty has been recovered from the spot, therefore, the possibility that this misfortune was happened by a single man but two from the same family were charged falsely cannot be ruled out.

10. Motive is a double edged weapon which cuts both ways. If it can be a reason for aggression, equally it can be a reason for false implication of an accused in an unseen occurrence. Though, the complainant alleged motive in his report but the prosecution has failed to establish the same.

11. True that while judging criminal liability of any accused in a case like the present one, if the principal accused was pinpointed/ specified of having made effective fire shots at the victim then vicarious liability within the meaning of section 34, P.P.C. would be exactly attracted, however, this is not at all the case of the prosecution. It is also strict principle of criminal justice that to award a person capital punishment, participation of each accused in the commission of the crime has to be established in a reasonable manner by the prosecution otherwise, on mere bald statement of one or two witnesses, convicting and awarding such capital punishment could not be justified under any circumstances.

12. On exhaustively scanning the entire record we have observed all the attending circumstances and it is obvious that the occurrence is unseen as the ocular testimony of the interested witnesses namely Gohar Ali complainant, the uncle of deceased, and Mst. Maida Grana, the widow of deceased, was not corroborated by the independent evidence. The above discussion of material facts with regard to the making of report and the way the investigation was conducted, would lead one to the conclusion that the FIR was lodged after considerable consultations and deliberation and after conducting preliminary investigation in the case and both the witnesses were procured just to strengthen the prosecution case.

13. As a matter of fact the prosecution is always bound to prove its case beyond any shadow of doubt. In criminal jurisprudence, the general rule of appreciation of evidence is that want of interest or absence of enmity does not stamp the statement of a particular witness with presumption of truth and that much depends on the intrinsic value of the statement of a witness. The real tests are as to whether the statement of a witness is in consonance with the probabilities, whether it fits in with the other evidence and whether it inspire confidence in the mind. Reliance in this regard is placed upon the cases of Muhammad Iqbal v. The State (1984 SCMR 930), Muhammad Arshad alias Achhi v. The State (1995 SCMR 1639) and Haroon alias Harooni v. The State and another 1995 SCMR 1627. It is also fundamental principle of jurisprudence, that is, to disbelieve a witness, it is not necessary that there should be numerous infirmities. If there is one which impeaches the credibility of the witness, that may make the entire statement doubtful. It has been now settled that conviction must be based on unimpeachable evidence and certainty of guilt and any doubt arising in the prosecution case must be resolved in favour of the accused. Reliance in this regard is placed on case of Muhammad Khan and another v. The State, 1999 SCMR 1220.

14. In view of the above discussion and scrutiny of evidence from all angles, we are of the view that the prosecution has failed to prove the guilt of the appellant through unimpeachable ocular testimony. Capital punishment cannot be maintained on such like evidence. The basic principle of Sharia/Law is that conviction must be based on evidence beyond any shadow of doubt because the damage resulting from erroneous sentence is irreversible and the principle that it is better to acquit guilty person than to punish an innocent one, but as the prosecution has failed to prove the guilt of appellant beyond any shadow of doubt, therefore, his conviction cannot be maintained. Resultantly, while extending the benefit of doubt, we accept the appeal filed by the appellants-convict by setting aside his conviction and sentence and acquit him of the charges levelled against him. He be set free forthwith, if not required in any other case. The criminal revision filed by the complainant is also dismissed. These are the detailed reasons for our short order of even date. HBT/144/P Appeal accepted.