' IJAZ-UL-HASSAN KHAN, J.--- Humayun appellant and his father Muhammad Janan, residents of khadri Mahmand Khel, District Bannu were tried by Mr. Muhammad Younis Khan, Additional Sessions Judge, Bannu, on the allegation of having on 13-10-2002 at 8-30 hours in furtherance of their common intention committed murder of their co-villager Abdur Razaq by firing. At the conclusion of trial, vide judgment dated 3-4-2002 Hamayun appellant was convicted under section 302(b), P.P.C. And sentenced to suffer life imprisonment with compensation of Rs,50,000 under section 544-A, Cr.P.C. To be paid to the legal heirs of the deceased and in default thereof to undergo further S.I. For one year. Benefit of section 382-B, Cr.P.C. Was also accorded to the appellant. However, co-accused Muhammad Janan was extended benefit of doubt and acquitted of the charge.
2. The convict by bringing the instant Criminal Appeal No,48 of 2004 has questioned his conviction and sentence whereas complainant Amanullah has filed Criminal Revision No,11 of 2004 seeking enhancement in sentence from imprisonment for life of the convict to that of penalty of death and further to enhance . The compensation amount. Since both the matters have arisen out of one and the same judgment, therefore, we propose to dispose of the same through this single judgment.
3. The prosecution story, in brief, is that on the day of occurrence i,e, 13-10-2002 at 8-30 hours.
Abdur Razzaq deceased went out of the house for some private work. Complainant Armanullah, brother of the deceased followed him. Deceased was ahead of the complainant. When they reached the venue of occurrence i,e, the fields adjacent to the house of complainant situated in village Pathoona Mamand Khel within the precincts of Police Station Cantt. Bannu, they noticed Humayun appellant and his father Janan armed with kalashnikovs. Janan commanded Humayun to kill Abdur Razaq. On showing positive response of command of Janan, appellant acted sharply and fired at Abdur Razaq as a result of whereof, he was hit and fell on the ground. After the commission of crime, the accused made good their escape. Motive for the occurrence was stated to be that a day prior to the occurrence, accused Humayun and deceased Abdur Razaq had exchange hot words over return of money on account of which accused was nourishing grudgd and looking for an opportunity to take revenge of his insult at the hands of the deceased.
4. The complainant took the injured to the hospital but he yielded to the injuries and expired in the way. The complainant made the report in D.H.Q. Hospital, Bannu the same day at 9-15 hours, which was recorded by A.S.-I. Muhammad Ayub (P.W.5). He sent the report to police station where its contents were correctly incorporated into F.I.R. By S.H.O. Sanaullah (P.W.2). A.S.-I. Muhammad Ayub then prepared injury sheet and inquest report of the deceased and sent the dead body to the mortuary for post-mortem examination under the care of F.C. Ghaffar Ali (P.W.7). S.H.O. Sanaullah after recording the report, proceeded to the spot and prepared site plan Exh.P.B". On the pointation of complainant. He secured blood-stained earth from the place of deceased and recovered one empty of 7.62 bore from the place of Humayun accused and made it into a sealed parcel vide memo. Exh.P.C. He took into possession blood-stained shirt and Banyan of the deceased brought by F.C. Ghaffar Ali (P.W.7) from the hospital vide memo. Exh.P.C./1. He also conducted house search of the accused Humayun Khan and arrested him the same day with kalashnikov along with fitted magazine containing 25 live rounds of the same bore and took the same into possession vide recovery memo. Exh.P.C./2. He recorded statements of the P.Ws., sent blood-stained clothes and kalashnikov along with crime-empty to Experts and placed their reports (Exh.P.Z. And Exh.P.Z./1) on the file. The witness in hand also registered a separate case under section 13, Arms Ordinance against Humayun. On 21-11-2002 he arrested accused Janan. On completion of investigation in the manner described above, complete challan was submitted against the accused in Court.
5. Dr. Muhammad Akhtar Zaman, M.O. D.H.Q. Hospital, Bannu (P.W.4) conducted autopsy on the dead body of deceased on 13-10-2002 at 9-30 a.m. And found the following:--
(1) One F.A. Entry wound left side perital region skull 3" above left ear, size 1/2" x 1/2".
(2) One F.A. Exit wound occipital area posterior skull size 6" x 2" Bone and brain matter out.
' Cranium and spinal cord.--- Scalp, membranes and brain injured. Thorax. Healthy, ' Abdomen: Healthy. Stomach contain food material, otherwise healthy.
' Muscles, bones and joints. Muscles injured at the site injuries. Skull bone fractured.
' In the opinion of doctor, the deceased died due to fire-arm injuries to brain, leading to loss of blood, shock and death.
' Time between injuries and death instantaneous. Between death and P.M. One to three hours.
6. The prosecution in order to prove its case, produced seven witnesses in all. Eye-witness account of the incident has been furnished by complainant Armanullah (P.W.3). The accused in his statement recorded under section 342, Cr.P.C. Denied the prosecution allegations and professed his innocence. He did not appear as his own 'witness on oath as required under section 340(2), Cr.P.C. Nor produced any evidence in defence.
7. The learned Judge on overall assessment of The evidence concluded that the prosecution was successful in proving the guilt of the appellant beyond any reasonable doubt. In reaching such conclusion, the learned trial Court accepted the evidence furnished by Armanullah complainant.
The learned Court found the corroboration to the evidence of complainant through medical evidence, recoveries from the spot, motive and recovery of kalashnikov from the house of the accused.
8. Appearing on behalf of the appellant, Mr. Sanaullah Khan Gandapur, Advocate, after having read the entire prosecution evidence and other material on record, argued that it was an unseen blind murder; that complainant has not been able to account for his presence at the spot; that no reliance can be placed on ocular evidence which is incompatible with the medical evidence; that acquittal of co-accused Janan makes the deposition of complainant highly doubtful; that motive has not been established satisfactorily and that recovery of kalashnikov from the house of accused does not implicate him with the crime in any manner. To add vigour to the submissions he placed reliance on 1993 PLD SC 251, 2004 PCr.LJ 482 (Lahore), 2004 PCr.LJ 30 (Peshawar) and 68, 1972 SCMR 620, 2004 PLD Pesh. 294, 299; 219, 1990 PLD Pesh. 10 and 2003 PCr.LJ 966 (Lahore).
9. Conversely, Mr. Ehsan-ul-Haq Malik, Advocate for the State assistant by Mr. Khawaja Nawaz Khan, Advocate for the complainant supported the impugned judgment qua conviction of the appellant and prayed for enhancement maintaining that in the absence of any mitigating, circumstance or any other reason, the lesser punishment awarded to accused-respondent is legally and factually wrong and is in utter disregard of principles of administration of criminal justice. It was urged that learned trial Judge was bound under the law to award full punishment to the convict in order to meet the ends of justice. To substantiate the contentions, reliance was placed on PLD 2004 Pesh.
147 and 150 PLD 1993 SC 895 and 896, 2000 SCMR 1758 and 1759, PLD 1995 SC 46, PLD 2004 SC 371, PLD 2004 Quetta 123, 2004 SCMR 1676 and 2004 PCr.LJ 1684, 377, 1138.
10. The prosecution evidence having been fully perused, we find that the appellant's counsel has rightly argued that the prosecution evidence suffers from infirmities and improbabilities and could not be made basis for conviction of the appellant. An eye-witness, who claims his presence at the spot, must satisfy the mind of the Court through some physical circumstance or through some corroborative evidence in support of his presence at the spot. In the instant case, solitary statement of the complainant stands belied by a host of circumstances and we entertain serious doubts in our mind regarding his presence at the scene of occurrence. No doubt it is true that the solitary statement of a witness is sufficient to base conviction of an accused person provided it rings true and comes from an unimpeachable source. However, the solitary statement of related chance witness is seldom relied upon in a case involving capital charge unless such witness inspires confidence by furnishing plausible and convincing explanation for his presence at a place where he is ordinarily not expected to be present at a given time It is well-established principle of law that in a case involving the capital punishment, the Court will not base conviction on the sole testimony of a witness, whose credibility is not free from 'doubts, therefore, for safe dispensation of justice in criminal cases the Courts look for some independent corroboration, which in our considered opinion is lacking in the instant case. Reference in this regard may be made to Haji Rabnawaz v. Sikandar Zulqarnain and 7 others 1998 SCMR 25, wherein following observations were made:--- ' Therefore, where the trial Court places reliance on the evidence of a witness on the basis of its personal observation regarding the demeanor of witness, such observations cannot be lightly ignored by the Appellate Court. However, where the evidence of a witness is evaluated by the trial Court on the basis of the other evidence and circumstances in the case, such evaluation is open to be tested before the Appellate Court on the touchstone of principles and guidelines laid down by the superior Courts for appreciation of evidence in such cases. One salutary principle laid down by this Court in this behalf and which is now firmly established is, that in a case involving capital punishment, the Courts will not base conviction of an accused solely on the testimony of interested witness unless such evidence finds corroboration by some other independent and unimpeachable piece, of evidence or circumstance in the case. This rule of prudence though not statutory in nature, has been followed by Courts so consistently through yeats that it has come to be recognised almost as a rule of law. The departure from this rule is to be found rarely and in very exceptional circumstances of a case_ Therefore, to say that the evidence of an interested witness is to be accepted solely on the ground that it remained unshaken during cross-examination is not a correct proposition. As held by this Court in the case of Din Muhammad v. Crown 1996 SCMR 777, to test the testimony of a witness, Courts should not only consider whether there is consistency in the narrative but should also consider whether the version is probable or not.' These observations were quoted with approval in the case of Iqbal alias Bhala v. State 1994 SCMR 1 as follows:-- ' In assessing the value of evidence of eye-witnesses it is necessary to examine whether in the facts and circumstances of the case their presence at the scene of occurrence in such a situation as would make it possible for them to witness it should be believed and further that whether there is anything inherently improbable or unreliable in their evidence. In Din Muhammad v. Crown 1969 SCMR 777 it was observed that to test the testimony of a witness Court should not only consider whether there is consistency in the narrative, but should also consider whether the version is probable or not ."
11. It is recognized principle of law that in criminal administration of justice, evidence furnished by interested witness related to victim or deceased cannot be discarded merely for the reason that the witness 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. As far as corroboration is concerned, F it .Does not mean that it should come from an independent source but anything in the circumstances which could satisfy the Court to believe that the witness has spoken the truth and can safely be considered to be corroborative evidence. It is a settled law that in absence of any other corroborative evidence, this evidence even if found convincing would not be sufficient by itself to warrant the conviction of the accused person on a charge of murder.
12. After deep Feappraisal of the evidence, we are convinced that it was an unseen occurrence and prosecution has failed to prove its case against the appellant beyond any shadow of doubt. The entire evidence of the prosecution is unreliable, unnatural and remains shrouded in mystery. The timings of report, arrival of Investigating Officer and the complainant on the spot, recovery of crime-empty and drafting of Murasila are highly doubtful and cannot be taken into consideration.
The medical evidence totally contradicts the prosecution version. The only entry wound and that too from the backside makes the presence of sole prosecution witness highly doubtful and unworthy of credit. The alleged recovery of crime weapon i,e, kalashnikov is fake and the report of F.S.L. Peshawar being in negative, also renders the entire case doubtful. The acquittal of co- accused Janan tends to suggest that complainant is 'unworthy of credence and has no regard for truth.
13. In the final analysis of evidence, we are of considered view that in this case prosecution has failed to prove the case against the appellant beyond doubt. Ocular account of complainant does not inspire confidence and it is doubtful whether he had seen the incident. No doubt the occurrence had taken place in which deceased lost his life but not in the manner asserted by the prosecution. There is no corroborative evidence to supplement ocular evidence. Prosecution can seek support from motive, medical evidence and recoveries, but each piece of evidence is defective and failing in intrinsic value, hence, not fit for reliance to corroborate ocular version, which is itself defective. It is settled principle of law that one piece of tainted evidence cannot corroborate another tainted piece of evidence. We, therefore, hold that it is a fit case in which benefit of doubt can be given to the appellant. Resultantly, while allowing this appeal, we set aside the conviction and sentences awarded to the appellant and acquit him of the charge. He shall be released forthwith if not required in any other case.
14. Since appeal has been accepted, the question of enhancement of sentence does not arise. The criminal revision is dismissed as such.
15.. We had, by our short dated 7-12-2004, allowed the appeal and acquitted the appellant of the charge for reasons to be recorded later. Above are the detailed reasons.