2005 P Cr (PLP)

This Criminal Revision No.93 of 2002 filed by Sher Afzal petitioner, calls in question the correctness and propriety of the judgment dated 8-7-2002 recorded by learned Sessions Judge/Judge Special Court, Nowshera, whereby he acquitted Wazir Badshah and Zari Badshah sons of Mir Ahmad Shah, respondents Nos.1 and 2 charged along with others, for committing murder of Said Afsar Shah deceased.

2. The prosecution story as unfolded in the FIR. is that on the day of occurrence i.e. 14-3-1994 complainant Sher Afzal and his brother Said Afsar Shah (deceased) were present in their field when in the meanwhile, their co-villager, Mir Ahmad Shah, Nadim Shah (since dead) Zari Badshah, Wazir Badshah (respondents) and lnayat All Shah, absconding co-accused emerged duly armed and took the deceased to their nearby `Daira'. The accused subjected him to indiscriminate firing as a result of which he was hit and died simultaneously. After accomplishing the mission, the accused made good their escape. The motive leading to the incident was stated to a dispute over a Shamilat land.

3. S.-I. Muhammad Khan (P.W.4) the then S.H.O. Police Station Nizampur, Nowshera, recorded the report at 11-00 hours at the instance of the complainant, prepared injury sheet Exh.P.W.4/1 and inquest report Exh.P.W.4/2 of the deceased and dispatched the dead body to the mortuary for post-mortem examination. On reaching the spot, he prepared site plan Exh.P.B. at the pointation of the complainant. He recovered four spent bullets Exh.P.1, an empty of 7.62 bore Exh.P.2 and another empty of .30 bore Exh.P.3 and took the same into possession vide recovery memo. Exh.P.C. in the presence of marginal witnesses. He also secured blood-stained earth Exh.P.4 from the spot vide recovery memo. Exh.P.C./2. He also took into possession last-worn cloth of the deceased brought from the hospital and sent the same to Forensic Science Laboratory, Peshawar, for chemical analysis. He arrested accused Zari Badshah on 9-9-2000. After completion of the investigation, challan was submitted in Court.

4. The prosecution in order to prove its case, produced nine witnesses in all. P.Ws. Sher Afzal Shah and his nephew Niaz Ali Shah offered eye-witness account of the occurrence and fully supported the prosecution version. Dr. Mir Ali (P.W.6) conducted the post-mortem examination of the deceased on 14-3-1994 at 2-15 hours and noted a number of entry wounds on the person of the deceased caused by fire-arms. In the opinion of the doctor the death of the deceased had occurred due to severe haemorrhage, injuries to heart, liver and big vessels of the thorax.

5. The accused-respondents in their statements recorded under section 342, Cr.P.C. denied the prosecution allegation and claimed to have been charged on mere suspicion. They did not appear as their own witnesses on oath as required under section 340(2), Cr.P.C. not produced any evidence in defence.

6. The learned trial judge on overall assessment of the evidence concluded that the prosecution has failed to prove its case against the accused beyond reasonable shadow of doubt and therefore, while extending benefit of doubt to the accused, acquitted them of the charges levelled against them.

7. Mr. Fazal Elahi, Advocate, for the petitioner attempted to argue that the impugned judgment presents a classic case of perversity of approach adopted for determination of the fate of the case. No other conclusion than the guilt of the respondents could have been reached in the face of overwhelming evidence on record. The learned trial Judge fell in error in law by advancing reasons to disbelieve the prosecution story which are not only fallacious but also artificial. Concluding the arguments, the learned counsel submitted that finding of acquittal recorded in favour of the respondents, is not in consonance with the material on record and is not sustainable in the eye of law.

8. Mr. Waseem Tariq, Advocate, appearing on behalf of the State, fully supported the pleas raised by the learned counsel for the petitioner. He argued that the reasoning adopted by the learned trial Judge for acquitting the respondents was artificial and in disregard to material on record. According to him, respondents having participated in the murder in question ought to have been convicted and awarded appropriate sentence.

9. Mr. Mehmood Shah, Advocate, learned counsel for respondents, on the other hand, supported the impugned judgment and maintained that case was outcome of malice and the prosecution story bristled with inconsistencies and was highly improbable and, therefore, no interference was called for in the impugned judgment. To substantiate the pleas, he placed reliance on Mst. Zeenat Sultan v. Mumtaz Khan and 9 others PLD 1994 SC 667; Khadim Hussain v. Manzoor Hussain Shah and 3 others 2002 SC.MR 261 and Barkat Ali v. Shaukat Ali and others 2004 SCMR 249.

10. I have heard the learned counsel and have gone through the impugned judgment and have also read the evidence brought on record by the prosecution. It may be noted that the Court below has thoroughly examined the evidence available on record and concluded that the prosecution has failed to establish accusation against the accused-respondents. It is one of the settled principle of law that whenever an accused person is acquitted of a criminal charge, then he enjoys double presumptions of innocence; once before the trial of the case and second after his acquittal.

11. It is recognized principle of law that in criminal administration of justice, evidence furnished by an interested witness related- to victim or deceased cannot be discarded merely for the reason that the witness B has relationship with the victim. However, the Courts have emphasized that in such-like situation efforts must be made to seek corroboration from other evidence available on record. In the instant no such evidence is forthcoming. The incident had taken place on Eid day at broad-daylight in the village and, therefore, independent witnesses could have been available but none has been examined by the prosecution and this circumstance suggested that it was an un-witness crime. Name of Niaz Ali P.W. claimed to have seen the incident is missing in the F.I.R. He seems to have been procured subsequently in order to lend support to the prosecution version. The complainant has also not been able to account for his presence at the spot at the relevant time. The ocular account furnished by these witnesses has been disbelieved by the learned trial 'Judge for valid reasons which are not open to legitimate exception. Chance witness, closely related to the deceased assumed special significant. No reliance could be placed on his testimony in the absence of unimpeachable corroboration as held in Zafar Hayat v. The State 1995 SCMR 896 and Noor Muhammad and 3 others v. The State 1973 PCr.LJ 891.

12. It is well-settled principle of law that prosecution need not to set up a motive for crime but once it has set up a motive and if it fails to I establish it, it is the prosecution that suffers. Mangio v. The State 1976 PCr.LJ 243.

13. The medical evidence does not establish identity of the culprits. It may simply give us extent, nature, 'number, locale of injuries, probable weapon of offence and cause of death.

14. Abscondence, per se, is not a proof of the guilt of an accused person. It may, however, create suspicion against him but suspicion after all are suspicions and cannot take place of proof. It is settled law that in absence of any other corroborative evidence, this evidence even if found convincing would not be sufficient by itself to warrant conviction of the accused person on a charge of murder. Abscondence alone cannot be a substitute for real evidence. 1986 SCMR 823 and PLD 1990 SC 201.

15. By discussing the abovesaid evidence of the prosecution, I have come to the conclusion that eye-witnesses are chance witnesses and they have rightly been disbelieved. Besides the occurrence having taken place C in the heart of the village, some evidence should have been available independently of such interested and uninspiring witnesses.

16. In view of the above discussion, I hold that the impugned judgment is unexceptionable and there is no justification for remand of the case to the trial Court for rewriting judgment. The criminal revision is devoid of substance. The same is hereby dismissed. The impugned order is maintained. H.B.T./475/P Revision dismissed.