2015 PLP 925 (YLR)

ASSADULLAH KHAN CHAMKANI, J.

Appellant Gul Faraz alias Paley Khan has filed this appeal against the judgment of learned Additional Sessions Judge-I, Bannu dated 6-7-2010, whereby he was convicted under section 302 (b) P.P.C. and sentenced to undergo imprisonment for life and to pay a fine of Rs.2,00,000 or in default thereof to undergo 6 months S.I. further. He was further held liable to pay Rs.3,00,000 as compensation in terms of section 544-A, Cr.P.C. to L.Rs. of deceased Khan Sarwar or in default thereof to undergo 6 months S.I. further. Benefit of section 382-B, Cr.P.C. was extended to him. Similarly, L.Rs. of Gul Sarwar Khan has filed Cr.A. No.16-B/2009, titled "Mst. Akhtar Zubana and others v. Saadullah alias Asadullah" against the judgment of learned Additional Sessions Judge-V/Judge Juvenile Court Bannu dated 24-11-2008, whereby accused Saadullah was acquitted. Though, both the appeals are against the two separate judgments of the Trial Courts, but are arising out of the same FIR No.75 dated 26-4-2001 registered under sections 302/ 404/34, P.P.C., at Police Station Kakki District, Bannu, therefore, are going to be disposed of through this common judgment.

2. The prosecution case as unfolded in First Information Report is that, on 26-4-2001 at 10.30 a.m. complainant Gul Sarwar, in company of his brother Haji Khurshid Afrin Khan reported in Police Station Kakki that his brother Khan Sarwar and appellant-convict Gul Faraz alias Paley Khan had purchased some "Shisham Trees" in the limits of Asad Khujari; that on the fateful day he along with his brothers Khan Sarwar and Haji Khurshid Afrin, was busy in cutting the said "Shisham trees" when at 09.45 a.m. Saadullah (acquitted accused) along with Gul Faraz alias Paley Khan (appellant-convict), duly armed with Kalashnikovs came there, and demanded price of Shisham trees from his brother Khan Sarwar. On response of Khan Sarwar that he would not demand return of Rs.1000 which he had paid in advance, but would not pay the remaining amount for the reason that the accused had sold them the trees of somebody else, both the accused opened fire at him with intention to commit his murder, resultantly he was hit, fell on the ground and died on the spot. The accused also thrashed him with Butt of their Kalashnikovs, took away his .30 bore licensed pistol and decamped from the spot. That dead body of the deceased is lying on the spot. Motive behind the occurrence was stated to be a dispute over the said Shisham trees. Report of the complainant was incorporated into FIR which was verified by Haji Khurshid Afrin. The local police accompanied the complainant to the spot and shifted the dead body to hospital where his autopsy was conducted.

3. Initially accused Saadullah alias Asadullah was arrested and tried by Additional Sessions Judge/Judge Juvenile Court Bannu and vide judgment dated 24-11-2008, was acquitted, against which Cr.A. No.16-B/2009 has been filed by Gul Sarwar. Later on, accused Gul Faraz alias Paley Khan was arrested and supplementary challan was submitted against him before the learned Trial Court, where he was charge sheeted, to which he pleaded not guilty and claimed trial. To prove his guilt, prosecution examined as many as nine witnesses. After closure of the prosecution evidence, statement of accused was recorded under section 342, Cr.P.C. wherein he denied the prosecution allegations and professed his innocence. He, however, neither wished to be examined on oath nor opted to produce evidence in defence. On conclusion of trial, learned Trial Court, after hearing both the sides, convicted and sentenced him as mentioned above.

4. Learned counsel for the accused argued that accused have falsely been implicated in the case on the basis of suspicions; that report has been lodged with in ordinate delay after consultation, deliberation and preliminary investigation; that the alleged eye-witnesses Gul Sarwar Khan and Haji Khurshid Ali Khan, are not only closely related to the deceased but also inimical towards the accused; that they have failed to establish their presence on the spot with the deceased at the time of occurrence; that it was an unseen occurrence and both the alleged eye-witnesses are procured; that medical evidence does not corroborate the ocular account and similar is the case of circumstantial evidence; that neither any crime empty nor any axe has been recovered from the spot; that the alleged eye-witnesses have not levelled any allegation of fire at them against the accused, which does not appeal to a prudent mind because no assailant/assailants would take a risk to kill a brother in front of his two brothers and let off the two so as to stand eye-witnesses against him/them; that the prosecution case is cock and bull story; that ocular account is full of contradictions and discrepancies creating serious doubts in the prosecution case, benefit of which is to be extended to the appellant-convict and he be acquitted of the charge. He argued that accused Saadullah has rightly been acquitted by the learned Trial Court by properly appreciating the evidence and it is settled law that after earning acquittal from the trial Court, double presumption of innocence is acquired by an accused. He sought dismissal of appeal against acquittal.

5. Conversely, learned for the complainant argued that both the accused are directly charged for committing murder of the deceased with firearms; that ocular account furnished by P.Ws. Gul Sarwar and Haji Khurshid Afrin is trustworthy and confidence inspiring which is corroborated by medical evidence as well as circumstantial evidence in the shape of recovery of blood from the spot and bloodstained garments of the deceased coupled with recovery of crime weapon from the accused; that noticeable abscondence of the accused is another circumstance which prove their guilty conscious. He argued that prosecution has proved the guilt of accused up to the hilt through cogent and confidence inspiring evidence and defence has failed to shatter the prosecution evidence, therefore, he while supporting the judgment vide which conviction and sentence of appellant Gul Faraz Khan has been recorded, sought reversal of judgment of acquittal of co-accused.

6. Learned A.A.G. adopted the arguments of learned counsel for the complainant.

7. We have considered the respective submissions of learned counsel for the parties and perused the record with their able assistance.

8. It appears from the record that ocular account of the occurrence has been furnished by Gul Sarwar Khan, examined as P.W.12 in earlier trial of acquitted co-accused Saadullah, while in the trial of accused Gul Faraz Khan, Haji Khurshid Afrin appeared as an eye-witness, who in earlier trial of acquitted co-accused was abandoned by the prosecution. Since, Gul Sarwar Khan died during trial of appellant Gul Faraz Khan, therefore, he was abandoned by prosecution.

9. As evident from the record, both the eye-witnesses namely Gul Sarwar Khan and Haji Khurshid Afrin are real brothers of deceased Khan Sarwar. No doubt, conviction can be recorded on the basis of statement of a solitary and interested witness provided his testimony is worthy of credence, confidence inspiring, credible and irrefutable because in criminal cases it is not the quantity but quality of evidence which is taken into consideration. Similarly, mere 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 this regard guidance may be derived from case titled, "Dildar Hussain v. Muhammad Afzaal alias Chala" (PLD 2004 Supreme Court 663). The principles for accepting the testimony of even an interested witness are set out in case titled, "Nazir v. The State" (PLD 1962 SC 269). Similarly, the prime consideration for the Court to accept the testimony of an eye-witness is to see whether he has established his presence on the spot at the time of incident. A witness who claims his presence at the spot, must satisfy mind of the Court through some physical circumstances or through some corroborative evidence in support of his presence at the spot.

10. Taking the case in hand at the touch stone of the principles enunciated by the apex Court in the judgments (supra), we have to evaluate the ocular account so as to determine whether the eye-witnesses have established their presence on the spot and whether their testimony is trustworthy and confidence inspiring corroborated by other strong circumstances of the incident or otherwise. Both, Khurshid Afrin (P.W.6) and Gul Sarwar Khan (P.W.12) have shown themselves with the deceased at the time when the accused arrived at the spot and demanded price of Shisham trees from deceased, who on refusal of the deceased to pay the same, resorted to firing. A look over the site plan reveals that deceased has been shown at point No.1A while the eye-witnesses at points Nos.4 and 5 i.e. in close proximity with the deceased in few paces. Similarly, accused have been shown at point Nos.2 and 3 i.e. at a distance of 13 to 15 paces from the eye-witnesses. It is not the case of the prosecution that the eye-witnesses took shelter some where at the time of firing. Rather, both the eye-witnesses have not stated a single word that the accused also attempted at their lives by firing at them, which seems improbable because no assailant/assailants in such circumstances would take a risk to leave evidence behind them. Moreover, the deceased and eye-witnesses were on same footing before the accused being brothers inter se. Both the eye-witnesses being real brothers of the deceased have not shown any effort to rescue their brother. It is also the case of prosecution that when the deceased was hit with the firing of accused and fell on the ground, the accused thrashed him with Butt of their Kalashnikovs, but none of the P.Ws. has shown any effort to move towards their brother and rescue him from the clutches of the accused despite that they were having axes, which does not appeal to a prudent mind being against the natural human conduct as well as against the customs and usages of our society, particularly this part of the country where in such like situation a brother would not hesitate to scarify his life for the sake of life of his other brother. The conduct of eye-witnesses like silent spectators creates reasonable doubt about their presence with the deceased. Had they been present with the deceased, they must have made some efforts for rescue of their brother.

11. Yet there is another aspect of the case. According to the P.Ws. they were busy in cutting the trees. To establish their presence they ought to have produced axes to the I.O. In cross-examination P.W. Khurshid Afrin deposed that they left axes on the spot and on arrival of the I.O. they showed the same to the I.O. but in the site plan no axe has been shown nor the same has been taken into possession. Similarly, the cut Shisham trees have also not been shown therein. P.W. Khurshid Afrin in cross-examination deposed that when the accused left the spot, they attended their brother, however, did not take him in their lap. This conduct of the P.Ws. being against the natural human conduct does not appeal to a prudent mind because no brother can bear to see the dead body of his brother in a pool of blood without touching him. Another astonishing aspect of the case is that both the eye-witnesses deposed that they left the dead body on the spot and went to Police Station where they made report. The relevant words of P.W. Khurshid Afrin read as "I did not take him into my lap. Similarly, complainant Gul Sarwar also did not take him into his lap. We left the dead body on the spot and both of us went to the Police Station we made report to a Tanidar having two stars on his shoulder and then in the company of the said Tanidar we came back to the spot. When we came back to the spot nobody was present and the dead body was lying on the ground". The testimony of eye-witnesses has been contradicted by Wazirzada Khan ASI (P.W.1), who recorded report of the complainant. He deposed that "complainant and P.W. came to the Police Station and I along with S.H.O. accompanied them to the spot. The witness explained that their report was written inside the Police Station and thereafter we proceeded to the spot. When we reached to the spot, some six or seven co-villagers were present there". Whereas according to P.W. Khurshid Afrin no body was present on the spot with the dead body. As discussed earlier, it is unbelievable that two real brothers would leave dead body of their brother unattended on the spot. Had they been present on the spot, they would have shifted his dead body in spite of leaving him unattended. All the peculiar facts and circumstances of the case strongly prove none presence of the alleged eye-witnesses with the deceased, therefore, their testimony which is un-trustworthy and suffering from material contradictions, and discrepancies creating serious doubts in the prosecution case cannot be believed and relied upon.

12. No crime empty has been recovered from the spot despite indiscriminate firing by two accused with automatic weapon like Kalashnikovs. It is not the case of the prosecution that after the occurrence some body interfered and removed empties from the spot. The recovered Kalashnikov in absence of crime empties and FSL report about matching of the crime empties with the recovered Kalashnikov cannot advance the case of the prosecution. Such like pieces of evidence are considered as corroborative pieces of evidence which are taken into consideration along with direct evidence. No doubt, bloodstained earth from the place of deceased and his bloodstained garments have been taken into possession by the I.O. during investigation and sent to the FSL for chemical analysis, report whereof shows that the same is a human blood and of the same group, but these pieces of evidence could only advance the case of the prosecution to the extent that deceased was done to death with firearm on that particular place/spot, but cannot tell the names of the assailant/assailant. These pieces of evidence in absence of direct evidence which has been disbelieved, would not be sufficient to prove the guilt of the accused. Reliance can be placed on cases titled, Riaz Ahmed's case (2010 SCMR 846), Ijaz Ahmed's case (1997 SCMR 1279 and Asadullah's case (PLD 1971 SC 541). It has been held by the apex Court in case titled, "Saifullah v. The State" (1985 SCMR 410), that when there is no eye-witness to be relied upon, then there is nothing, which can be corroborated by the recovery.

13. So far as abscondence of the accused is concerned. The accused have denied the same in their statements under section 342, Cr.P.C. It is settled law that abscondence alone, cannot be a substitute for real evidence. Reliance placed on "Farman Ali and others' case (PLD 1980 SC 201) and case titled, "Muhammad v. Pesham Khan (1986 SCMR 823). Since there is no credible evidence to support the prosecution version, so abscondence, itself, would not be sufficient to prove the guilt of the accused. The ocular evidence of the prosecution is shaky, scanty and pregnant of doubts and according to golden principle of benefit of doubt, one substantial doubt is enough for acquittal of the accused. Basically, it is the principle enshrined in Islamic jurisprudence, fourteen hundred years ago that "it would be better to acquit hundred culprits than convicting one innocent soul." Which has now been transformed into the form of the principle that, "acquitting by error would be better than convicting by error". The said commandment has evolved into the theory of benefit of doubt, which, invariably, is extended to the accused for safe administration of criminal justice. The learned trial Court has not evaluated the evidence in its true perspective thus reached to an erroneous conclusion by holding the appellant-convict guilty of the offence, therefore, the impugned conviction and sentence of the appellant/convict is not sustainable. Resultantly, this appeal was allowed. Convection and sentence of the appellant-convict were set aside and he was acquitted of the charge while connected criminal appeal against acquittal stands dismissed:-- "For reasons to be recorded later, we allow this appeal, set-aside the conviction and sentence of appellant Gul Faraz alias Paley Khan, recorded vide impugned judgment dated 6-7-2010 passed by learned Additional Sessions Judge-I, Bannu in case FIR No.75 dated 26-4-2011, registered under sections 302/404/34 P.P.C. at Police Station Kakki, Bannu and hereby acquit him of the charge in the above mentioned case. He be set at liberty forthwith, if not required in any other case. HBT/455/P Appeal allowed.