2013 PLP 632 (MLD)

ASSADULLAH KHAN CHAMKANI, J.

Imran, Saleem, Naeem and Shah Zamin, the convict/appellants, were charged vide F.I.R. No. 1122 dated 6-6-2007 under sections 302/34, P.P.C. registered at Police Station Mingora, District Swat. They were tried by learned Sessions Judge/Zila Qazi, Swat. Learned trial Court found them guilty of committing the Qatl-e-Amd of Rahim and Gohar, deceased, and they were convicted and sentenced under section 302(b), P.P.C. through judgment dated 16-12-2009 to imprisonment for life. They were directed to pay Rs.3,00,000 each as compensation to the legal heirs of the deceased, or in default to suffer six months S.I. Benefit of section 382-B Cr.P.C. was extended to them. The convict/appellants have filed present Criminal Appeal No.42 of 2010.

2. Facts of the case in brief are that Sajjad, the complainant, lodged a report in hospital to the police that he along with Rahim and Gohar were working with Ali Cable, Mingora, on 6-6-2007 they had gone to Kanju in connection with work, behind them Naeem, Salim and Imran also come and started altercation with them but they were separated by the people present there. When they came back to office, in the meanwhile, at 1345 hours, the above named three accused along with Shah Zameen also came duly armed with knives and chhuri and started quarreling with them and gave them chhuri and knives blows as a result of which Rahim and Gohar Ali received injuries on different parts of their bodies and died on the spot. Motive for the offence was stated to be dispute over monthly fee while the occurrence was witnessed by Umar Khaliq and Asmat besides other people present there, as such, the above referred case was registered.

3. Learned trial court after receipt of the complete challan, complied with the legal formalities, framed the formal charge against the accused, who did not plead guilty and claimed trial. Prosecution in order to prove its case produced its witnesses. Thereafter, statements of the accused were recorded under section 342, Cr.P.C, wherein they totally denied the allegations levelled by the prosecution. After close of the evidence and hearing the arguments of the parties, learned trial court convicted and sentenced the accused, as stated above, hence, the present appeal.

4. Learned counsel for the appellants submitted that the judgment of learned trial court is based on presumptions and surmises because the charge is exaggerated one and it is the act of single person. He next argued that the occurrence had not been witnessed by P.Ws.2 and 3 but were procured in order to strengthen the prosecution story. He further argued that the material available on the file totally negated the story of prosecution. He argued that learned trial court, under the law, was required to have taken into consideration the injuries caused by convict Imran and his confessional statement in toto because the prosecution has failed to prove its case against the appellant. Lastly, he 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 be acquitted of the charge.

5. On the other hand learned D.A.-G. appearing on behalf of the State and counsel for complainant argued that the appellant-convicts are directly charged in the F.I.R. and version of the complainant has fully been supported by the ocular account, the medical report, knife as weapon of offence, blood-stained garments and FSL result. He further argued that the prosecution proved its case against the accused beyond any shadow of doubt and supported conviction and sentence awarded to the accused.

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

7. Perusal of file would reveal that four persons are charged for the murders of Rahim Ullah and Gohar but with no specific role. The entire case of the prosecution is hinges on the following pieces of evidence:- (a) Ocular account given by Sajjad P.W.2 and Asmat Ullah P.W.3, (b) Recovery of knife as weapon of offence and other circumstantial evidence, (c) Medical evidence, (d) Motive for the crime and (e) Confessional statement of accused Imran.

8. As in the instant case the most pivotal role is that of the ocular account of the two witnesses, therefore, in our view, we would like to discuss it by making careful reappraisal of the same as all the four accused belong to one and the same family, so, an innocent one may not fall on account of misreading or non-reading of material evidence. The prosecution case mainly hinges upon the alleged ocular account, namely Sajjad complainant P.W.3 and Asmat Ali P.W.3. We would like to reappraise 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 case of prosecution is that firstly, three accused namely Naeem, Saleem and Imran came behind the complainant and deceased to Kanju where a quarrel took place in between them but they were separated by the people present there and secondly, when they came back to office, again the above named three accused along with his father Shah Zameen came to their office known as Ali Cable, and started giving knives and chhurri blows to complainant and both the deceased, as a result of which Saleem and Gohar received injuries and died on the spot. According to site plan the P.Ws. were very close to the deceased. When there was a quarrel between the two groups and the accused were having knives and chhuri in that case the complainant and eye-witnesses could have received injury but astonishingly, neither the complainant nor the other alleged eye-witnesses received a single injury or scratch, which cast serious doubt on the prosecution story. Similarly, as per report of the complainant the occurrence was witnessed by many other people present there but the prosecution has failed to produce a single witness from the people who separated them at first instance at Kanju and from the people who were present at the time of second quarrel, which further makes the presence of P.Ws. dubious. Besides the above, their presence on the spot is also not believable because the accused were four in number while the complainant party was consisting of five persons, so, the complainant party was in better position to overpower the accused party, therefore, the presence of above witnesses is highly doubtful, therefore, it cannot be said beyond all reasonable doubt the above witnesses were present on the spot at the relevant time. Furthermore, the prosecution withheld the most important evidence known as Ali Cable, who was the owner of the cable, because from his examination/statement the prosecution could have established its story regarding the presence of eye-witnesses on the spot. 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 test 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 cardinal 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. In this case, we have reached to the conclusion that both the eye-witnesses in the case are not reliable witnesses. Since, the testimony of the above two witnesses is not believable and appears to be after thought, so, it could be thrown out of consideration.

9. Now, we have left with confessional statement of the appellant-convict Imran and knife as weapon of offence. Imran in his confessional statement stated that complainant Sajjad is his maternal cousin and his sister namely Khapary was married at Punjab but her relation with her husband was strained, therefore, she was residing in his house. She also filed a suit for dissolution of marriage over which the complainant party was annoyed. On the day of occurrence at morning time Sajjad along with Fahmida, Gohar and Rahim came to his house, where her mother Benazira and Khaparay were all alone and they took Khapray from his house forcibly as a result of which his mother received injuries and in this respect he lodged report in the Police Station but they had settled the dispute in the Police Station with the accused. On the same day when he was taking his mother for treatment to Doctor in his motor car, in the meantime, at 12/1-00 p.m. Sajjad, Gohar, Rahim and other two unknown culprites duly armed with knives and chhuri were already present on the spot, attacked and started beating him as a result of which he received injury and during scuffle he snatched knife from the hands of Gohar and gave blows to Gohar and Rahim as a result of which they received injuries. This fact has also been mentioned in daily Diary No. 39 dated 6-6-2007. Dr. Miftah uddin P.W.8, who examined the accused Imran, also confirmed the injury on the person of convict appellant Imran.

10. From perusal of entire evidence on record it is evident that prosecution has, though, advance motive but the same has not been proved. No witness has been produced from the office of Ali Cable to confirm that the complainant, eye-witness and deceased were the employee of Ali Cable and even no person was produced from the office to prove that there was certain dispute over non-payment of monthly fee or disconnection of cable. The prosecution produced P.Ws. 2 and 3 but their testimony are not ringing true. No doubt, the convict-appellant has retracted from his confessional statement but the same would not lose its value for the mere reason that it was retracted. Reliance in this regard is placed on the case Tariq Hussain Shah v. The State 2003 SCMR 938, wherein it has been held that retracted confession of accused when confidence inspiring alone is sufficient for conviction. When the prosecution has failed to prove its case against the accused beyond reasonable shadow of doubt then we have been left only to consider the confessional statement of accused.

11. Confession of the accused was recorded by Tariq Abas, Judicial Magistrate, P.W.12, on 7-6-2007. Learned Judicial Magistrate stated before the trial court that after removing the handcuffs, the court staff, police officials and Naib Court were sent out of the court. He disclosed his identity and informed the accused that he was not bound to make confession and if he makes a confession, it will be used against him as evidence. According to certificate Exh.P.W.12/3, accused was given one hour to think over the matter. Questions mentioned in Exh.P.W.12/1 were put to the accused by the Judicial Magistrate and thereafter when he was satisfied that the accused wants to record his confession voluntarily, without any duress or coercion then he recorded the confessional statement Exh.P.W.12/2 and then read over and explained the same to the accused, who after admitting the same as correct, thumb impressed/ signed the confessional statement. Nothing favourable to accused was brought in cross-examination. Though, the convict-appellant Imran retracted the confession in his statement, recorded under section 342, Cr.P.C. but the Court in order to judge the evidentiary value of a retracted confession, is to see as to whether the same appears to be voluntary, without any inducement, promise, duress or coercion and whether the same appears to be true and if it appears to be voluntary and true, then it is supposed to be the best evidence against the maker, even the same is retracted, can be made sole basis of conviction, without looking for corroboration. Reliance is placed on the case Suleman v. The State 2006 SCMR 366, wherein it has been held that the judicial confession alone if it is found true, convincing and made voluntarily without any duress or coercion, the same can be made basis for conviction.

12. Besides the above, confessional statement of the accused is corroborated by the medical evidence, blood-stained garments and its report along with knife as weapon of offence. Perusal of confessional statement would reveal that the appellant-convict Imran has disclosed the entire story without any duress and coercion before P.W.12 Tariq Abas, Civil Judge/Judicial Magistrate wherein he has not disclosed the names of other co-accused of having hands in the commission of offence.

13. Therefore, taking into consideration all the above facts and circumstances of the case, we are persuaded to hold that the prosecution has failed to prove its case against accused Saleem, Naeem and Shah Zamin and the conclusion drawn by the Court below regarding the guilt of above named appellants in the commission of above offence is not based on sound and cogent reasoning. Therefore, by extending benefit of doubt, we partially allow this appeal, judgment of conviction recorded by trial Court dated 16-12-2009 is set aside to the extent of accused Saleem, Naeem and Shah Zameen and they are acquitted of the charge. They be released forthwith if not required in any other case whereas appeal to the extent of Imran is dismissed and conviction and sentence awarded to him by the trial court is maintained. These are the reasons of our short order announced on 20-12-2012. MWA/16/P Order accordingly.