P L D 2001 Quetta 20 (PLP)

The charge under above section has been read over and explained to accused in Urdu language which fully understand and he is asked as to whether he plead guilty to the charge or not to which he replied as under:-- Ans. All the five accused have not pleaded guilty and claimed trial. Dated: (Sd.) Syed Anwar Aftab, 28-8-1997 Addl. Sessions Judge-IV, Quetta.

5. On 8-10-1997 the learned Additional Sessions Judge-IV, Quetta acquitted Mst. Zamrad Bibi, Muhammad Yousuf, Muhammad Razaq and Mian Dad from the charge under section 302/109/34, P.P.C. on the basis of compromise stated to have been arrived between the legal heirs including minor children of deceased and the abovenamed accused persons. It may be seen that ordinarily the right to waive the Qisas is personal right which can be exercised by the person who is adult and sane having full capacity to differentiate between the good and the bad, therefore, a minor 'Wali' cannot be compelled to waive the right of his Qisas through his guardian. In the circumstances the trial Court was not justified to accept the compromise which was not in accordance with section 309 of the P.P.C.

6. The prosecution examined P.W.1 Khan Gul (complainant), P.W.2 Maroof Ahmed, P.W.3 Shazia, P.W.4 Asma, P:W.5 Shahnaz, P.W.11 Raja Jawad (Judicial Magistrate), P.W.13 Yousuf Masseh, P.W.14 Raja Muhammad Bashir, P.W.15 Abdul Jabbar (Chemical Expert), P.W.17, Dr. Fareed, P.W.18 Muhammad Saleem, P.W.19 Aurangzaib and P.W.20 Nazar Jan. The trial Court also allowed the request of the complainant which was made in the application submitted under section 540, Cr.P.C. on 2-7-1998 and examined Azeem Bakhsh, Zamrad, Chen Zaib, Musarrat, Muhammad Razaq, Mian Dad and Muhammad Yousuf, although they have been indicated as prosecution witnesses and the complaint was earlier dismissed by the trial Court on 9-12-1997.

7. The accused/appellant has disputed the case of the prosecution and pleaded his innocence. When asked as to why the witnesses had deposed against him to which he stated that they deposed falsely. He also made his statement on oath as per provisions contained under section 342, Cr.P.C. According to him his sister was married to Jahanzaib with whom and others he had no enmity. According to him on receipt of information regarding death of his relative he came to participate in funeral and he was arrested by the S.H.O. He took the plea of alibi. He has produced D.W. Moulana Abubakar in his defence whose statement is to the extent that on 7-4-1997 Doulat and Muhammad Aslam came to him in Sirki Kalan at Asar time where they remained with him till 'Ishah' and whereafter they left for saying their 'Ishah Prayer'. According to accused/appellant the complainant party approached him for effecting compromise. The plea of the accused/appellant is that he is innocent and has falsely been implicated with the commission of alleged offence.

8. On the basis of evidence the learned trial Court formulated the following points for determination:-- (i) Whether deceased died unnatural death on account of bullet shot injuries? (ii) Whether accused Muhammad Aslam is the real culprit or accused Zamarud, Muhammad Yousaf, Muhammad Razaq and Mian Dad against whom case has been compounded by the legal heirs of deceased? Both the points have been answered as under: -- (i) Proved (ii) Accused Muhammad Aslam is found accused of murder of Lal Khan and case against other accused was malfidely designed.

9. The learned trial Court did not believe the evidence of prosecution witnesses Mst. Shazia, Maroof, the statements recorded by Judicial Magistrate under section 164, Cr.P.C. and the Investigating Officer which were favouring the accused/appellant and also did not believe the defence version. The learned Sessions Judge (Ad hoc) found the accused/appellant guilty for the offence under section .302, P.P.C. and convicted him accordingly. The learned trial Judge has expressed himself in the following terms:-- "I have perused the entire evidence produced on behalf of the accused and the evidence in support of the allegation produced by the prosecution. The accused in support of his contention has submitted an audio casette which according to him contained the conversation of the complainant party on compromise. I have heard the audio casette. It is conversation of different persons in Hinkdko language and vociferation is so confusing that clear words are not understandable. Besides it is not confirmed whether it is conversation of complainant party or some other person. Therefore, without corroborating and confirmation from any independent witness on behalf of the accused, it cannot be taken into consideration. Even the accused in his statement does ~ not refer recording of conversation of the complainant party on compromise. There are two sets of evidence. One is favouring the accused P.W.3 Mst. Shazia arid P.W.2 Maroof, who deposed that he saw Muhammad Yousaf committing murder of Lai Zaman. Witness No.2 was declared hostile and the improvements and contradictions came out from his statement recorded under section 161, Cr.P.C. casts serious doubt on his credibility. Same is the case with P.W.3 Mst. Shazia. This fact has come on record that she is real sister of the accused person and was taken away by the accused on the next day from the house of the deceased, therefore, her interest to save his real brother cannot be ruled out, as such her statement cannot be taken into consideration. The other piece of evidence is the confessional statements of Mst. Zamarud widow of the deceased and Muhammad Yousaf, father-in-law of the son of deceased which was recorded by Judicial Magistrate after inordinate delay from the date of incident. The main contention of the defence is that there, was illicit relations with Muhammad Yousaf and Mst. Zamarud. Muhammad Yousaf came from Abbotabad to visit her daughter Mst. Musarat wife of the complainant Khan Gul after seven years. It is not convincing that the illicit relations could have been maintained by persons having status of grandfather and grandmother that too in a very small house in the presence of their children, therefore, the confessional statements of both these persons are not convincing. Even otherwise the learned Magistrate- had not certified that the statements have been recorded by the accused with free-will, without threat and coercion and he is satisfied on his score. The delay in recording confessional statements, impeachable reality of the admission, the deviation of mandatory. provisions of section 364, Cr.P.C. renders the whole statement unbelievable and as such cannot be taken into consideration. The highhandedness of the Investigating Officer has come on record. Therefore, it is possible that the statements given was terrified with the consequences of not giving favourable statement of the choice of Investigating Officer, as the daughters of the statements givers were still in his custody."

10. We have heard Mr. Kamran Murtaza learned counsel for the accused/appellant and Mr. Ghulam Mustafa Mengal, Assistant Advocate -General for the State while Mr. Abdul Nabi Busdar, Advocate appeared for the complainant.

11. Learned counsel for the accused/appellant has mainly contended-that there are 2 sets of evidence which have been produced by the prosecution itself, one favours the accused and the second goes against him. The version which favours the accused has not been accepted while the version which is against the accused has been taken into consideration which is contrary to facts and law, therefore, the impugned judgment is liable to be set aside. It has been contended that 4 accused persons namely Mst. Zamrad, Muhammad Yousaf, Muhammad Razaq and Mian Dad were acquitted to the extent of compromise and the appellant was not with them but the learned Sessions Judge (Ad hoc), Quetta sat on the Order of the acquittal of the remaining accused which is unwarranted. Learned counsel has further argued that P.W. Khan Gul is not an eye-witness of occurrence and no opportunity to examine him was provided through counsel. It is maintained that the persons who did appear against the accused/appellant were interested witnesses and their statements were afterthought, contradictory to the earlier version. The evidence which was favouring the accused/appellant has wrongly been discarded, although the same was produced by the prosecution itself. Learned counsel has also contended that no recovery has been effected from the accused/appellant. The statement made by him and the witness appeared in his defence has also not been taken into consideration.

12. Learned Assistant Advocate-General representing the State has opposed the acceptance of appeal and supported the impugned judgment.

13. We have considered the submissions made by the learned counsel for the parties and are of the view that the case of the prosecution is doubtful in nature. The evidence available on record is in no way sufficient to lead to a, conclusion that the accused/appellant can be convicted of the offence alleged against him. We are not inclined to subscribe to the conclusion arrived at by the trial Judge. P.W. Raja Jawad, Judicial Magistrate who had recorded the statements of acquitted accused Mst. Zamrad, Muhammad Yousaf, vide Exh.P/11-B & E and of P. W. Mst. Asma vide Exh.P/11-H, did appear before the trial Court. The confessional statements have been found by the Magistrate as voluntary and true. These statements have been discarded by the learned trial Court for the reason that there was delay and non-compliance of the provisions of section 364, Cr.P.C. It may be stated that delay in recording the confession itself cannot render the confession nugatory if otherwise it is proved on record that the same was made voluntarily. The certificates given by the learned Magistrate do not seem to be against the provisions of - section 364, Cr.P.C. On the contrary the perusal of record indicates that the statement of accused/appellant under section 342, Cr.P.C. has not been recorded by the learned Sessions Judge (Ad hoc), Quetta in accordance with law. The learned trial Court has also failed to given requisite certificate under his hand to the effect that the statement of the accused/appellant was recorded in his presence and hearing, and contained full and true account of the statement made by him. No doubt there is appended a certificate to the effect that the statement of the accused/appellant was recorded in his presence but this certificate which is in the handwriting of someone else cannot be treated as a certificate under the hand of Judge. The perusal of statement recorded indicates that all the questions and answers are in handwriting of some other person and the certificate is also not in the handwriting of learned Sessions Judge (Ad hoc), Quetta. It is well settled that when the law provides the procedure for doing a thing in particular manner then that thing should be done in the prescribed manner and in no other manner or should not be done at all. Similarly it may I also be pointed out here that section 302, P.P.C. itself divides 'Qatl-i-Amd' for the purpose of punishment into 3 categories but in the instant case the, trial Judge has not indicated as to under which sub-clause of section 302,1 P.P.C. the accused/appellant has been convicted. Admittedly the complainant Khan Gul is not an eye-witness of the occurrence and moreover, opportunity of cross-examination has not been provided by the counsel for accused. According to him ht; lodged the report in Police Station whereas, Fard-e -Bayan is stated to have been recorded in hospital. The statements of Zamrad. Muhammad Yousaf, Muhammad Razaq and Mian Dad who were accused persons in the case and against whom charge was framed and in view of I statement of Judicial Magistrate and being interested persons cannot be relied upon for conviction of the appellant. P.W.2 Maroof Ahmed who is an independent witness has not implicated the accused/appellant in the crime'. P.W.3 Mst. Shazia has also not implicated the accused/appellant with the commission of alleged offence. Being sister of the accused/appellant her statement cannot be discarded when her presence at the spot has not been denied. The statement of Mst. Asma also cannot be relied upon as she retracted from her earlier statement recorded under section 164, Cr.P.C. and made improvements over her earlier statement. Mst. Shahnaz whose name also finds place in the list of witnesses has made improvements over her earlier statement, although she has denied the same to have been recorded by the police. The statement of P.W.6 is only to the extent that he has produced a photostat of F.I.R. as Exh.P/6-A. P.W.8 Chen Zaib is also not an eye witness of the occurrence and appears to be an interested witness keeping in view the circumstances of the case, therefore, cannot be relied upon for conviction of the accused/appellant. Mst. Musarrat who has been examined by the Court under section 540, Cr.P.C. is wife of the complainant and daughter of the acquitted accused Yousuf cannot be relied for conviction of the accused/appellant. P.W. Raja Muhammad Bashir who is stated to have arrived at the place of occurrence has also not implicated the accused/appellant with the commission of alleged offence. The statement of P.W. Abdul Jabbar is :o the extent that the articles sent for chemical examination were stained with human blood. Dr. Fareed conducted post mortem examination and even otherwise the unnatural death is not in dispute. P.W. Muhammad Saleem is a formal witness of recovery memo. P.W. Aurangzaib is the Investigating Officer. Admittedly there was no incriminating evidence available against the accused/appellant in the police case wherein the accused/appellant was discharged under section 169, Cr.P.C. and placed in Column No.2 of the challan. The Investigating Officer has even been disowned by the prosecution and subjected to cross -examination by the District Attorney. In cross-examination he has categorically stated that the enquiry was conducted against him by the Department as per directive of the High Court but he was exonerated. Nothing has been brought on record which can implicate the accused/appellant in crime. P.W. Nazar Jan I.P./S.H.O. who has produced challan Exh.P/20-A and B has also not implicated the accused/appellant. It is also pertinent to note that this Court in Criminal Revision No.75 of 1997 has made the following observations:-- "It may be noted that the accused Muhammad Yousaf and Mst. Zamarud were also challaned for the offence under section 10 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 which requires to be tried in accordance with law, if not so far tried by the learned trial Court." It appears that the same has not been complied with by the trial Court. The charge against the accused/appellant was that he had shared common intention with the acquitted accused but the same has not been established nor the charge has been altered subsequently. The finding of the trial Court is not based on any valid evidence and moral conviction by a Judge about guilt of accused could not form the basis of his conviction.

14. The prosecution has not established its case beyond reasonable doubt as the case against the accused/appellants is not free from doubt. It is a cardinal principle of law that the evidence on capital charge must come from unimpeachable source. It is also principle of appreciation of the evidence in criminal matters that defence plea of the accused at the trial is placed on juxtaposition to the prosecution version and the Court is to try to evaluate it and discover the probabilities of the case. The learned Sessions Judge did not believe the defence version as correct but in view of what has been laid down in Zaheer-ud-Din v. State 1993 ~CMR 1628 "fact that accused failed to prove his plea raised in defence can neither reduce the burden of the prosecution to prove the case against him beyond reasonable doubt nor could it be taken into consideration as proved in support of the prosecution case".

15. The Hon'ble Supreme Court in a case reported in 1995 SCMR 1345 have made the following observations:-- "The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right. " 16, The principles laid down and the observations made by the Hon'ble Supreme Court in another authority reported in 1999 SCMR 1220 are reproduced below, for the sake of facility:

"It is axiomatic and ununiversally recognized principle of law that conviction must be founded on unimpeachable evidence and certainty of guilt and hence any doubt that arises in the prosecution case must be resolved in favour of the accused it is, therefore, imperative for the Court to examine and consider all the relevant events preceding and leading to the occurrence so as to arrive at a correct conclusion where the evidence is examined by the prosecution is found inherently unrealizable, improbable and against natural course of human conduct, then the conclusion must be that the prosecution failed to prove guilt beyond reasonable doubt. It would be unsafe to rely on the ocular evidence which has been moulded, changed and improved step by step so as to tit in with the other evidence on record. It is obvious that truth and falsity of the prosecution case can only be judged when the entire evidence and circumstances are scrutinized and examined in its correct perspective. It is unfortunate that neither the trial Court nor the High Court thoroughly studied the record so as to reach correct conclusion. Rather they dealt with the matter in a very cursory manner which naturally resulted in miscarriage of justice. As noted above, the eye-witness account in this case is so unreasonable and inherently improbable that no amount of corroboration can rehabilitate it."

17. In 2000 SCMR 1038 it has been held that "the intrinsic and probative values of the ocular account stood eroded by its rejection to some extent by the Investigating Agency and to some extent by the trial Court by acquitting the five accused, therefore, it would not be safe to place explicit reliance on this evidence without corroboration from an independent source. The learned Judges in the High Court in the circumstances as explained above were correct in holding that this type of the evidence could not be accepted without corroboration in view of its interested nature and the flaws therein as indicated above".

21. Upon considering of the evidence, following the principles laid down by the Hon'ble Supreme Court and the circumstances of the case we have reached the irresistible conclusion that the prosecution has failed to prove the case against the appellant beyond any reasonable doubt. We, therefore, set aside the conviction and sentence awarded to the appellant and acquit him of the charge. The appellant shall be released forthwith from jail if not wanted in any other case. N.H.Q./46/Q Appeal accepted