2015 PLP 2413 (YLR)

ASSADULLAH KHAN CHAMKANI, J.

This appeal has been filed by appellant Shall Muhammad from Jail, challenging the legality and validity of judgment dated 19-7-2011, passed by learned Additional Sessions Judge Lahor, District Swabi, whereby the appellant has been convicted under section 302(b), P.P.C. and sentenced to undergo life imprisonment as Ta'azir and to pay Rs.1,00,000, as compensation to L.Rs. of deceased under section 544-A, Cr.P.C. or in default thereof to undergo 6 months S.I. further, in case FIR No.38 dated 12-1-2001, registered under section 302, P.P.C. at Police Station Lahor, District Swabi. Benefit of section 382-B, Cr.P.C. was extended to him.

2. On 12-1-2001 at 12.15 hours, Malang Taj (PW.11), in company of dead body of his father Saghir Muhammad, reported to local police that on the fateful day he, his father and nephew Anwar Ayaz, were cutting grass in fields known as "Dhand Shahbaz Pur". At 1100 hours, his maternal cousin, namely, Shall Muhammad (appellant herein), duly armed with pistol, came there, and opened fire at his father with intention to do him away, resultantly, he was hit and died on the spot. Motive behind the occurrence is that accused had not good terms with his father, for which he was suspecting the deceased that it was because of making incantation (Taveez), of the deceased. In addition to complainant, the incident is stated to have witnessed by his nephew Anwar Ayaz. Report of the complainant was recorded in the shape of murasila Exh.PA/1 on the basis of which FIR Exh.PA was registered.

3. On arrest of the appellant and completion of investigation, 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 bring home guilt of the appellant, prosecution examined as many as twelve witnesses. After closure of the prosecution evidence, statement of appellant was recorded under section 342, Cr.P.C. wherein he denied the prosecution allegations and professed his innocence. He, however, declined to be examined on oath under section 340(2), Cr.P.C. or to produce evidence in defence. On conclusion of trial, learned trial Court, after hearing both the sides, convicted and sentenced the appellant, as mentioned above, hence, this appeal.

4. Learned counsel for the appellant argued that learned trial Court has recorded the conviction of the appellant on mere surmises and conjectures without appreciat ing the evidence available on record; that testimony of alleged eye-witnesses are suffering from material contradictions and discrepancies creating serious doubts about their presence on the spot; that medical evidence is in conflict with the ocular evidence; that prosecution has failed to prove the guilt of the appellant through cogent and confidence inspiring evidence, rather the prosecution evidence is pregnant of doubts, benefit of which is to be extended to the appellant as a matter of right.

5. As against that, learned counsel for the complainant and learned State counsel contended that appellant is directly and singularly charged for committing murder of the deceased in a promptly lodged report eliminating the possibility of consultation and deliberation; that being a broad daylight occurrence and parties well known to each other, question of mistaken identity does not arise; that complainant and Anwar Ayaz, the eye-witnesses of the occurrence have furnished true account of the incident, who had been subjected to lengthy cross examination by the defence, but nothing beneficial to defence could be extracted from them; that medical and circumstantial evidence corroborate the ocular version; that prosecution has succeeded in proving the guilt of appellant through cogent and confidence inspiring evidence, therefore, learned Trial Court has rightly held him guilty of the offence. He supported the impugned judgment and sought dismissal of the appeal.

6. We have given our anxious consideration to the respective arguments of learned counsel for the parties and perused the record with their able assistance.

7. During trial complainant Malang Taj appeared as PW.11. In his very examination in chief, he introduced some new events qua motive which he never stated in his report. In report he asserted that relations of the accused and his father were strained, for which accused was suspecting the deceased that he by incantation (Taveez), has disturbed their relation. But in his' Court statement he deposed that:-- "The accused was suspecting my father that he has a hand in the grievances between the accused and his father, therefore he killed my father. In fact the accused was committing every kind of mischief and also teasing the ladies of other people due to which the father had become aggrieved over his conduct and his father was not allowing the accused to his house. Whenever the accused was teasing or maltreating his father and mother, the father would run to our house in order to escape himself from the cruelty of the accused". Report of the complainant reveals that at the time of occurrence he along with deceased and PW Anwar Ayaz was cutting grass, but neither the alleged cut grass has been shown to the I.O. by both the P. Ws. nor taken into possession during spot inspection. Similarly, no sickle has been taken into possession nor produced by the' PWs before the I.O. which were essential so as to prove the presence of the PWs on the spot. Complainant in his cross-examination categorically deposed that they had not shown the grass and sickles to the I.O. He further deposed that on report of fire shots, many people attracted to the spot, but none of them has come forward to depose in favour of the prosecution nor the I.O. has recorded their statements under section 161, Cr.P.C. nor their names are known to the complainant, which seems very strange. He had not stated about number of shots allegedly fired by the appellant in initial report, but in his Court statement he deposed that the accused fired 3/4 shots. Statement of Anwar Ayaz (PW.12), the other alleged eye-witness runs contrary with the statement of complainant. According to him the accused fired 4/5 fire shots. He deposed that since the sickles and grass were taken by some body from the spot, therefore, they did not show the same to the I.O. Both the PWs have deposed that they did not participate in the funeral ceremony of the deceased, which is quite unnatural and unbelievable, therefore, cast serious doubts about their presence with the deceased on the spot. Had they been present with the deceased, they would have participated in the funeral ceremony of the deceased being father of complainant and maternal uncle of PW Anwar Ayaz. In further cross-examination PW Anwar Ayaz has totally shattered the prosecution case by deposing that during spot inspection by the I.O. the dead body was there on the spot for 15 to 30 minutes, whereafter they took it to Police Post Jehangira. This version of PW Anwar Ayaz totally negates the basic fabric of the prosecution case. He further deposed that from Police Post he did not accompany the dead body to the hospital, which conduct is unnatural. No attempt/effort has been shown by the PWs to apprehend the accused when he was decamping from the spot despite that the PWs were allegedly in possession of sickles. They could easily hit the back of the accused with sickles when he was decamping from the spot, but no such effort has been made. Thus, the conduct of the PWs like silent spectators is against the normal human conduct as well as norms of the society, particularly this part of the country where a son never hesitate to sacrifice his life for the life of his father or close relation. The occurrence has been shown in the open fields. The PWs have not levelled any allegation of attempting at their lives by the appellant, which also does not appeal to a prudent mind. No assailant would take risk to leave such like evidence behind him. The direct/substantive evidence of the prosecution being shaky and scanty, does not inspire confidence, therefore, the same is discarded and cannot be believed and relied upon.

8. Neither any crime empty from the spot nor the weapon of offence from direct or indirect possession of the appellant has been recovered. No doubt, recovery of bloodstained earth from the spot from the place of the deceased, his last worn bloodstained clothes, and autopsy report, established the murder of the deceased with fire arm on the spot, but by whom, is shrouded mystery as we cannot believe the testimony of the alleged eye-witnesses being shaky, scanty and untrustworthy, therefore, these pieces of evidence being corroborative in nature, by itself would not be sufficient for conviction of accused, in absence of substantive piece of evidence i.e. the ocular evidence which has been disbelieved by us. Reliance can be placed on Riaz Ahmed's case (2010 SCMR 846). As per the dictum of the apex Court, corroborative evidence is meant to test the veracity of ocular evidence. Both corroborative and ocular testimony is to be read together and not in isolation. Wisdom in this regard may be derived from 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. Similarly, in case titled, "Riaz Masih v. The State'? 1995 SCMR 1730, the honourable apex Court held that recovery of crime weapon by itself is not sufficient for conviction on murder charge. In case of Siraj v. Crown (PLD 1956 Federal Court 123), it has been held that recovery of handle of blood-stained hatchet at the instance of the accused, when other evidence was disbelieved, then it was not enough for conviction. Same view has been expressed by the apex Court in Saifullah's case (1985 SCMR 410).

9. It is well settled principle of law that for recording conviction strong and corroborative evidence of unimpeachable character is required. It is golden principle of criminal justice that finding of guilt against accused must not be based on probabilities to be inferred from evidence. Such findings must rest surely and firmly on the evidence of unimpeachable character, otherwise, the golden principle of benefit of doubt would be reduced to naught.

10. So far as abscondence of the appellant is concerned. He has denied the same in his statement under section 342, Cr.P.C. It is settled law that abscondence alone, cannot be a substitute for real evidence. It has been observed by the apex Court in Farman Ali and others' case (PLD 1980 SC 201) that abscondence by itself would be of no avail to prosecution in absence of any other evidence against the absconding accused. Mere abscondence of accused would not be enough to sustain his conviction. Wisdom in this regard may be derived from 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. According to golden principle of benefit of doubt, one substantial doubt is enough for acquittal of the accused. In the instant case, the prosecution evidence is highly discrepant, full of infirmities and doubts. The learned trial Court has not evaluated the evidence in its true perspective, thus reached to an .erroneous conclusion by holding the appellant guilty of the offence, therefore, the impugned judgment is not sustainable. Resultantly, this appeal was allowed. Convection and sentence of the appellant were set aside and he was acquitted of the charge.

11. These are the reasons of our short order of even date, which is reproduced below:-- "For reasons to be recorded later, we allow this appeal, set aside the conviction and sentence of the appellant Shal Muhammad son of Dost Muhammad, recorded by learned Trial Court/Addi tional Sessions Judge Lahor District Swabi, vide impugned judgment dated 19-7-2011, in case FIR No.38 dated 12-1-2001, registered under section 302, P.P.C. at Police Station Lahor, District Swabi and hereby acquit him of the charge in the aforementioned case. He be set at liberty forthwith, if not required in any other case". HBT/416/P Appeal allowed.