2015 PLP 1576 (YLR)

ASSADULLAH KHAN CHAMKANI, J.

Appellants Amir Akbar and Bahar Ali were tried by Sessions Judge/Zila Qazi, Buner on the charges under section 302/34, P.P.C. in case FIR No. 873 dated 1-11-2008, registered at Police Station Daggar, for the murder of Mst. Samina deceased. The learned Sessions Judge/Zila Qazi found them guilty of the offence under section 302/34, P.P.C., vide judgment dated 10-12-2010, and, thus, convicted and sentenced them to under go life imprisonment and also to pay Rs. 50,000 each as compensation under section 544-A, Cr.P.C. to be paid to the legal heirs of deceased or in default thereof to suffer six months SI each and further fine of Rs. 1,00,000 each or in default to suffer SI for a term of two years. However, benefit of Section 382-B, Cr.P.C. was extended to them. Both, the appellants assailed their conviction through their separate Criminal Appeals bearing Nos. 968/2010 and 11/2010. Similarly, the complainant also filed a Criminal Revision bearing No. 04/2011 for enhancement of the sentence from life to death. Since the above the criminal appeals and revision arise out of the same judgment, as such, are disposed of through this single judgment.

2. Brief facts of the case are that complainant Zarvaiz Khan lodged a report on 1-11-2008 in Civil Hospital, Dagger to the effect that his nephew Amir Akbar Khan, who is also his son in law, came to his house and after exchanged some hot words with Mst. Samina and, thereafter, went home back. At sham vela, he along with his wife Mst. Siraja and one Bakht Zameen went to the house of Amir Akbar to reconcile him but he was not present at home. On return at khuftan vela his daughter in law Mst. Roshan informed him on cell phone that his daughter Mst. Samina had been murdered by Amir Akbar Khan and Bahar Ali by firing at her. On such information, he came to his house and found his daughter Mst. Smina lying dead. As such, the above referred FIR was registered against both the appellants.

3. After completion of investigation, complete challan in the case was submitted under section 512 Cr.P.C. as the convict-appellants were avoiding their lawful arrest. Later on, both the accused were arrested and supplementary challans against them were submitted before the court.

4. Learned trial court after fulfilling the legal formalities, framed the formal charge against the appellants to which they pleaded not guilty and claimed trial. Prosecution in order to prove its case produced eleven witnesses. Thereafter, statements of the accused-appellants were recorded under section 342, Cr.P.C., wherein they totally denied the allegations levelled against them. After close of the prosecution evidence and hearing the arguments of the parties, learned trial court convicted and sentenced the accused-appellants as stated above, as such, the above referred appeals as well as revision were preferred.

5. Learned counsel for the appellants argued that complainant himself is not an eye-witness of the occurrence whereas the testimonies of P.Ws.2 and 3 are not confidence inspiring. They highlighted the discrepancies and contradictions in the ocular evidence as well as in the site plan. They further argued that ocular evidence is in conflict with the medical evidence because as per prosecution story the accused were armed with weapons and fired at the deceased whereas the Women Medical Officer at the time of examination of the dead body found an incised wound measuring 10 x 20 cm on the front of left chest and declared the death as a result of injury to the vital organs (heart) by sharp weapon, therefore, the eye versions given by the witnesses is not well-matched to medical evidence, hence, there arises a serious doubt in the case, the benefit whereof has to be given to the appellants. They argued that P.W.2 and 3 being related to deceased and interested witnesses cannot be relied upon. They further contended that the Investigating Officer shown the recovery of Kalashnikovs as weapons of offence but the same has not been proved because the persons who produced the said weapons to the I.O. were not examined before the trial court. They argued that prior to the occurrence, the deceased eloped with one Tajoon son of Behroz Khan and for taking revenge the appellants and the complainant detained three women and three male members of the family of Behroz Khan where the deceased had gone and spent three days and in this respect case FIR No.837 dated 29-9-2008 was also registered against the appellants and complainant but the complainant suppressed the said fact. They further argued that motive has been alleged but the same has not been proved. They contended that the empties allegedly recovered from the spot were lying for sufficient time in the custody of police; therefore, report of the FSL, if any, cannot be used against the appellants. Lastly, they submitted that the prosecution has miserably failed to prove its case against the accused 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- appellants be acquitted of the charge.

6. On the other hand learned A.A.-G. appearing on behalf of the State and counsel for the complainant argued that the report of the occurrence was lodged promptly, therefore, there was hardly any time for false charge. They argued that both the eye-witnesses are inmates of the house, therefore, their presence in the house/ spot are natural. They further argued that their testimony is consistent on material points and supported by medical evidence, recoveries of crime empties, Kalashnikovs as weapons of offence, blood through cotton from the spot, blood stained garments and FSL results. They argued that the prosecution proved its case against the accused-appellants beyond any shadow of doubt and further submitted that though there are minor discrepancies in the evidence of prosecution but the same were not fatal to the prosecution case and supported the conviction and sentence awarded to the accused-appellants, however, criticized the findings of trial court to the extent of lesser punishment and submitted that the appellants be awarded normal penalty of death.

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

8. Perusal of record would reveal that two persons are charged for the murder of Mst. Samina but with no specific role. Admittedly, complainant himself is not an eye-witness of the occurrence, and it was P.W.2 Mst. Roshan, who informed him about the occurrence. Complainant when appeared as P.W.1, he in his cross-examination stated that one Behroz Khan lodged a report against them for the abduction of his children and the said case is pending adjudication. However, he denied the suggestion that the deceased was disappeared from the house for some time. Mst. Roshan was examined as P.W.2. She stated in her cross-examination that at the time of occurrence they had not taken the dinner. She further stated that at the time of occurrence they were standing and were present in the veranda. Mst. Zenat was examined as P.W.3. She stated in her cross examination that at the time of occurrence she, Mst. Roshan, Mst Sameen and Mst. Ziati were busy in taking dinner in the veranda. Both the eye-witness were unanimous in their statements that both the appellants came into their house and made fire at the deceased as a result of which she died but the medical evidence is not supporting their version. The deceased was examined by Women Medical Officer Gulnaz P.W.6. She in her exami-nation-in-chief stated that on 1-11-2008 at 9.00 p.m she examined the dead body of Mst. Samina, aged about 17/18 years, and found the following on her body. (1) An entry wound on the back of body 1.5. (2) An exit wound 4.1 x 3.5 c.m. on the front of the abdomen corresponding to the entry wound. (3) An incised wound measuring 10 x 20 c.m. on the front of left chest and a deep blunt wound 3.5 c.m. Cause of death. She declared that the cause of death was due to injury to vital organ (heart) by sharp weapon. In cross-examination P.W.6 confirmed that it has correctly been mentioned in the report that injury No.2 (number not given in the report) was caused with sharp weapon. She also confirmed that injury No.3 (number not given in the report) was caused through blunt weapon but, strangely enough, these two injuries were suppressed by the complainant as well as the eye-witnesses, which creates serious doubt regarding the credibility of the witnesses. In a case reported in 2007 SCMR 1812 titled Barkat Ali v. Muhammad Asif and others it has been held that oral evidence to the extent of its inconsistency with medical evidence could not be accepted. Reliance is also placed on the cases reported in PLD 1994 SC 178 titled Abdul Subhan v. Raheem Bakhsh, wherein it has been held that if medical evidence leaves room for doubt, benefit of that doubt should go to accused and not to prosecution. As per contention of learned A.A.-G. and counsel for the complainant that both the eye-witness are the inmates of house and the occurrence also took place inside the house, therefore, their presence on the spot is natural. It has been held in a case of Muhammad Iqbal v. Abid Hussain alias Mithu and 6 others 1994 SCMR 1928 that the factum of the presence of a witness being natural would establish their presence on the spot but would not take the prosecution case any further. The real test for acceptance of a statement is 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 inspires 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. Besides the above, P.W.2 Mst. Roshan stated in her cross-examination that the firing was made inside the gate but no empty was recovered from the courtyard of the house. In view of the above discussion, we are convinced that the occurrence has not taken place in the manner and mode as alleged by the prosecution and no implicit reliance can be placed on the ocular evidence produced in the case.

9. As far as recovery of weapons of offence are concerned, according to prosecution story, during interrogation the accused-appellant Amir Akbar disclosed that after commission of offence a rifle 7.62 bore was handed over by him to one Taj Pareen. The said Taj Pareen produced the weapon of offence, which was sent to FSL along with the recovered empties and received a positive FSL report. Similarly, Bahar Ali appellant also disclosed about the weapon of offence and at his instance Fazal Akbar, the maternal uncle of the appellant, produced the rifle along with three cartridges, subsequently; the same too, was sent to FSL along with the recovered empties, which support the prosecution case. Perusal of file would reveal that the alleged recovered empties were lying in the "PI Malkhana" for sufficient time and the same were not sent to FSL in order to ascertain as to whether the same were fired with one weapon or otherwise rather the I.O. was waiting for the recovery of the weapons of offence. Besides the above, even the persons, who produced the weapons in questions to the Investigating Officer were not produced before the trial court, therefore, the FSL report, even it be in positive, is of no avail to the prosecution.

10. True that there is abscondance in the account of appellants but it is a settled law that mere abscondance does not prove guilty mind. Abscondance can be used only as a corroborative piece of evidence, which cannot be read in isolation but it has to be read along with substantive piece of evidence. In the present case the substantive piece of evidence in the shape of ocular account has been disbelieved, therefore, no conviction can be based on abscondance alone. Reliance in this regard is placed on the case of Rohtas Khan v. The State 2010 SCMR 566. 10A The prosecution alleged motive but the same is not proved on record. It has been held in a case of Noor Muhammad v. The State 2010 SCMR 97 that when motive is alleged but not proved, then ocular evidence is required to be scrutinized with great caution. In the present case, the complainant and eye-witnesses alleged that an altercation took place prior to the occurrence between deceased and accused-appellant Amir Akbar but the foundation of altercation and abusing was suppressed by the prosecution. The Investigating officer, though, placed on file the copy of FIR Exh.P.W.8/3, registered at the instance of one Behroz Khan, but efforts of further investigation was not made, which further makes the case of prosecution doubtful.

11. The entire evidence would reveal that the site plan, medical evidence and motive did not corroborate prosecution version. The ocular testimony is not confidence inspiring keeping in view the major inconsistency between the ocular and medical evidence. Now it has been set at rest by the apex court that for giving the benefit of doubt it is not necessary that there should be many circumstances creating doubts but a single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefit not as a matter of grace and concession, but as a matter of right. Reliance is placed on the case of Muhammad Akram v. The State 2009 SCMR

230. It has now also been 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 Muhammad Khan and another v. The State, 1999 SCMR 1220.

12. In view of the above discussion, we are of the view that the prosecution has failed to prove the guilt against the appellants. The evidence available on record are not of such a character which could be relied upon to convict a person on a capital charge as the testimony of eye-witnesses was not worthy of credence by suppressing the sharp injuries on the persons of the deceased, which creates reasonable doubt and benefit of such doubt would go to the accused persons. As the prosecution has failed to prove the guilt against the appellants beyond any shadow of doubt, therefore, their conviction cannot be maintained. Resultantly, while extending the benefit of doubt, we accept the appeals filed by the appellant-convicts by setting aside their conviction and sentences and acquit them of the charges leveled against them. They are in custody and be set free forthwith, if not required in any other case. Similarly, Criminal Revision bearing No. 04/2011 is also dismissed. These are the detailed reasons for our short orders of even date. HBT/143/P Appeal accepted.