2002 PLP 916 (YLR)

4. After recording the statement of Mst. Zahida Bibi complainant Akhtar Hussain Shah, Inspector (P.W.11) took up the investigation of this case, prepared an injury statement and inquest report in respect of the dead body of Manzoor Ahmad and sent the dead body to the mortuary for autopsy. He also inspected the place of occurrence and prepared a rough site‑plan thereof. He then secured blood‑stained earth from the place of occurrence and took into possession the blood‑stained articles of bedding. He also secured a pair of shoes allegedly belonging to Iftikhar alias Chhiki appellant and another pair of shoes belonging to Muhammad Yousaf alias Pappu appellant from the place of occurrence.

5. On 2‑7‑1994 Post‑mortem Examination of the dead body of Manzoor Ahmad was conducted by Dr. Muhammad Jameel (P.W.5) who found two fire‑arm injuries on it which were both ante‑mortem. In the doctor's opinion the cause of death was injuries on vital organs and excessive heamorrhage as a consequence of receipt of injuries No.1 and 2 which were individually as well as collectively sufficient to cause death in the ordinary course of nature. The probable time elapsing between the injuries and death was opined by the doctor to be immediate and that between the death and post‑mortem Examination was observed to be between 8 to 12 hours.

6. On the same day i.e. 2‑7‑1994 Akhtar Hussain Shah, Inspector (P.W.11), the Investigating Officer received the last- worn clothes of the deceased. On 4‑7‑1994 he got a formal site‑plan of the place of occurrence prepared by a Draftsman. He arrested both the appellants on 14‑8‑1994 and recovered rifles and bullets from both of them. Thereafter he completed the investigation and submitted a challan.

7. At the commencement of the trial the learned trial Court framed a charge against the appellants for an offence under section 302/34, P.P.C. to which they pleaded not guilty and claimed a trial.

8. During the trial the prosecution produced as many as eleven witnesses in support of its case against the appellants. Mst. Zahida Bibi complainant (P.W.6) and Mehmood Hussain alias Mehmood Ahmad (P.W.7) furnished the occullar account of the incident in question and they also deposed about the motive. Abdus Sattar (P.W.1) stated about the recoveries of rifles from both the appellants during the investigation of this case. Dr. Muhammad Jameel (P.W.5) provided the medical evidence. Akhtar Hussain Shah, Inspector (P. W .11) stated about the various steps taken by him during the investigation of this case. Abdul Rashid, A.S.I. (C.W.2) stated about proclamations having been issued against both the appellants under section 87, Cr.P.C. and his efforts to get the appellants served with such proclamations. The remaining evidence provided by the prosecution was more or less of formal nature.

9. In their statements recorded under section 342, Cr.P.C. both the appellants denied controverted all the allegations of fact levelled against them by the prosecution and professed their innocence. While answering a question as to why they had been implicated in this case and as to why the prosecution witnesses had deposed against them both the appellants had maintained that it was a case of blind murder committed by the unknown culprits or dacoits and the appellants had been falsely implicated in this case in view of political rivalry. The appellants had, however, opted not to make any statement on oath under section 340(2), Cr.P.C. and they also did not produce any witness in their defence.

10. At the conclusion of the trial the learned Court found the prosecution's case against the appellants to have been proved beyond reasonable doubt and thus, the appellants were convicted and sentenced as mentioned and detailed above. Hence, this appeal before this Court.

11. In support of this appeal, the learned counsel for the appellants has argued that the prosecution had failed to prove its case against the appellants beyond reasonable doubt. As against that the learned counsel for the State has maintained that the prosecution had succeeded in proving the guilt of the appellants to the hilt and thus, their convictions and sentences recorded by the trial Court do not warrant any interference by this Court.

12. After hearing the learned counsel for the parties and going through the record with their assistance it has straightaway been noticed by us that the motive set up by the prosecution had remained far from being proved. It is available on the record that both Mst. Zahida Bibi complainant (P.W.6) and Mehmood Hussain alias, Mehmood Ahmad (P.W.7) had not themselves witnessed the incident allegedly forming the motive in this case and that their statements in those regards were based upon nothing but hearsay. The complainant had herself gone on to state before the learned trial Court that no evidence whatsoever regarding the said incident of motive had been produced before the Investigation Officer during the investigation of this case. In these circumstances we have no other option but to discard the motive set up by the prosecution.

13. Although it had been mentioned in the F.I.R. that both the appellants were armed with pistols at the time of the occurrence and the said stand was changed during the investigation as the complainant and the other' eye‑witness produced by the prosecution had maintained before the Investigating Officer that in fact both the appellants were armed with rifles during the incident in question yet the fact remains that the rifles allegedly recovered from the appellants during the investigation of this case had not been connected with the alleged offence as admittedly no crime‑empty was recovered from the place of occurrence and thus, there was no question of getting the allegedly recovered rifles compared with any crime -empty: It is also not disputed that the pairs of shoes belonging to the assailants allegedly recovered from the place of occurrence soon' after the incident had been proved through any independent evidence to be those of the appellants. Thus, the alleged recovery of rifles from the appellants and pairs of shoes from the place of occurrence did not provide any independent corroboration to the ocular account supplied by the prosecution in this case.

14. The medical evidence cannot, by its nature, identify or point out the culprit who had caused the relevant injuries and this is why it is called only a supportive evidence and not a corroboratory piece of evidence. Thus even this piece of evidence provided by the prosecution in this case does not point towards the guilt of the appellants.

15. The discussion made above leaves us with a prompt F.I.R. and the statements of the Eye‑witnesses as well as the stated absconcion of the appellants so as to establish the guilt of the appellants. As regards the F. I. R. it has been noticed that the same was admittedly lodged by the complainant at the place of occurrence when the police had itself reached the spot after receiving information about the incident from an undisclosed source. It is generally accepted in criminal practice and law that lodging of an F.I.R. at the place of occurrence generally gives rise to s an inference that the F.I. R. might well have been registered after deliberations. Mst. Zahida Bibi complainant (P.W.6) had herself admitted in so many words before the learned trial Court that she had made her statement before the concerned police officer at the spot after prior consultation with her father‑in- law and brother‑in‑law. This admitted- position has taken the wind out of this so called promptly lodged F.I.R. and has surely denuded it of much of its weight and significance.

16. It may be true that Mst. Zahida Bibi (P.W.6) and Mehmood Hussain alias Mehmood Ahmed (P.W.7), the eye‑witnesses produced by the prosecution, can be termed as natural witnesses being inmates of the same house where the occurrence had taken place and this being a case of night occurrence their presence in the said house at the relevant time is something which is not extraordinary. Be that as it may, the fact remains the occurrence in this case had taken place during the dead of night and the source of light at the relevant time had remained far from being established. Although it had been mentioned in the F.I.R. that an electric bulb was alight at the time of the incident and Masood Ahmad Bhatti, Draftsman (P.W.8) had also talked about an electric bulb in his statement made before the learned trial Court yet the fact remains that no such bulb was ever recorded during the investigation of this case. So much so that even the site‑plan (Exh.P.J) of the place of occurrence does not even show any point where such a bulb was alight or a place where any electricity connection was available on the roof‑top of the house where the occurrence had allegedly taken place. Thus, in a night occurrence like this where the source of light for the purpose of identification of the culprits had not been established on the record we have decided to exercise caution.

17. We have found it to be rather unusual that in the stated presence or availability of her father‑in‑law as well as brother‑in‑law as eye‑witnesses of the occurrence it was Mst. Zahida Bibi (P.W.6) who had come forward as the complainant of this case. We are cognizant of our social norms that in the presence of male kith and kin of the deceased it is very rare that a female is allowed by them to become a complainant in a murder case. The only explanation tendered by Mst. Zahida Bibi complainant (P.W.6) and Mehmood Hussain alias Mehmood Ahmad (P.W.7) in that regard is that the cot of Mst. Zahida Bibi was in closer proximity to that of the deceased at the time of the incident and it was for this reason that she had been made the complainant of this case. This explanation has, however, been found by us to be feeble, to say the least.

18. Mst. Zahida Bibi complainant is the widow of Manzoor Ahmad deceased and Mehmood Hussain alias Mehmood Ahmed (P.W.7) was a brother of the said deceased. Mst. Zahida Bibi complainant had admitted that she was a housewife and she had given absolutely no explanation as to how she knew the present appellants so well that she could identify them even during the dead of a night in the absence of any established source of light. It may also be pertinent to mention here that in the F.I.R. the complainant had maintained that both the appellants were armed with pistols but subsequently she had maintained before the Investigating Officer as the learned trial Court that both the appellants were in fact armed with rifles .222 bore. Her knowledge about different kinds of weapons and her expertise in this regard has also surprised us. Thus, her switching stands in this respect have put us to further caution as she has been found by us to be a person who can be tutored or who is capable of exaggeration or falsehood. In this regard may also be relevant to mention that although in the F.I.R. the weapons of offence were described as pistols and in her supplementary statement the complainant had described the weapons as rifles .222 bore yet the inquest report of the deceased prepared by the Investigating Officer at the spot mentioned only "fire‑arms" as the weapons used by the culprits without any specification of the weapons. As regards Mehmood Hussain alias Mehmood Ahmad (P.W.7) we have noticed that the site‑plan (Exh.P.J) of the place of occurrence shows that he was sleeping at a place which was 25 feet away from the cot of the deceased. It had been mentioned in the F.I.R. that the said witness was sleeping on the roof‑top of a separate room but a perusal of the site‑plan (Exh.P.J) of the place of occurrence does not depict the place of presence of the said witness to be a roof‑top whereas all the surrounding places have been specifically mentioned as roof‑tops. It may, therefore, well be that the said witness was sleeping in the compound of the house whereas the occurrence had taken place on the roof‑top and this is why he might not have been able to see the occurrence himself even if his claimed presence is accepted. This could also be a reason why he was not made the complainant of this case despite his being a real brother of the deceased. The father of the deceased namely Muhammad Sadiq, who had also been cited in the F.I.R. as an eye witness, had been given up by the prosecution as unnecessary. The law requires us to raise an inference in this regard that if the said witness had entered the witness‑box then he would have deposed against the prosecution.

19. For the reasons recorded above we have entertained‑serious doubts about the claim made by the eye‑witnesses produced by the prosecution, especially when the occurrence in this case had taken place during the middle of a night and the eye-witnesses produced by the prosecution had failed to receive any material corroboration from any independent source. As already observed above the motive set up by the prosecution had not been established by it and therefore, there was apparently no reason why the present appellants would go to the house or the deceased at night and commit his murder. In these circumstances the stand taken by the appellants in their statements under section, 342, Cr.P.C. that the deceased might have been done to death by some dacoits could, well be true.

20. It is trite that mere absconcion of an accused person does not necessarily give rise to the only inference of guilt as such as absconcion could also be propelled by a fear of an unjustified arrest and an unjustified trial on a capital charge. There is nothing available on the present record to hold that the appellants' stated absconcion was incompatible with their innocence. Thus, mere absconcion of the appellants may not provide sufficient corroboration to the already shaken ocular account in the present case.

21. For what has been discussed above we have found it to be unsafe to rely upon the uncorroborated testimony of the eye‑witnesses produced in this case and, for safe administration of justice we have decided to extend the benefit of doubt to the appellants. This appeal is, therefore, allowed, the convictions and sentences of the appellants recorded by the learned trial Court are set aside and the appellants are acquitted of the charge. They shall be released from jail forthwith if not required in any other case. H.B.T./I‑123/L Appeal allowed.