' IJAZ-UL-HASSAN KHAN, J.--- Appellant Qudratullah son of Ghulam Qadir, aged about 32/33 years, was tried by learned Sessions Judge, Hangu, on the allegation of having, on 10-8-1995 at 20-00 hours at Railway Station Road, near the house of Fateh Khan, in the precinct of Police Station Hangu, along with his brother Sher Guloon (absconding co-accused) in furtherance of his common intention, committed Qatl-i-Amd' of Musaddiq Hussain deceased by firing and attempted murders. Of Mesam Ali complainant Sahib Noor and Muhammad Bilal. At the conclusion of trial, vide judgment, dated 20-3-2004, appellant was convicted under section 302(b), P.P.C. And sentenced to undergo R.I. For 25 years with benefit of section 382-B, Cr.P.C. The appellant was, however, acquitted of the charge under section 324, P.P.C. Due to insufficiency of evidence.
2. The appellant by way of filing instant Criminal Appeal No,253 of 2004 has challenged his conviction and sentence, whereas complainant Mesam Ali has filed Criminal Revision No,73 .Of 2004 seeking enhancement in sentence awarded to the appellant. Since both the matters have arisen out of one and the same judgment, therefore. We propose to dispose of the same through this consolidated judgment.
3. The crime in question is alleged to have taken place on the date. Time and the place of occurrence mentioned above and the report about it was lodged the same day at 22-00 hours at the instance of P.W. Mesam Ali complainant.
4. Briefly stated the prosecution story is, that on the fateful day, Mesam Ali complainant along with his son Musadaique Hussain (deceased) and co-villagers Sahib Noor and Muhammad Bilal was on the way back to his house after attending marriage of one Asif. When they reached the site of occurrence, they found Qudratullah -accused and his brother Sher Guloon, absconding co- accused, duly armed standing there. On confrontation the accused started firing at the complainant, party, as a result of which Mussadique Hussain was hit. Explaining the motive it was disclosed that in-laws of the complainant had given evidence against the accused on account of which the accused were nursing grudge against the complainant and were looking for an opportunity to take revenge.
5. On receiving the information A.S.-I. Ali Jan (P.W.1) reached the hospital, recorded report Exh.P.A./1 at the behest of complainant Mesam Ali, prepared injury sheet Exh.P.W.1/1 and inquest report Exh.P.W.1/2 of the deceased. As the darkness had prevailed, he visited the spot on the following day and prepared site plan Exh.P.B. At the pointation of the complainant. During the spot inspection he took into possession maize crops, which were blood-stained vide recovery memo. Exh.P.C. He also took into possession blood-stained clothes of the deceased brought from the hospital, vide memo.
Exh.P.C./1. The clothes were sent to Chemical Examiner Peshawar for opinion and report. The witness in hand initiated proceedings under section 204/87, Cr.P.C. Against the accused and after completing necessary investigation, submitted the case file to S.H.O. Asal Khan (P.W.6) who submitted complete challan under section 512, Cr.P.C. Against the accused.
6. Before the trial Court, prosecution produced 9 witnesses to prove the charge against the appellant. Complainant Mesam Ali furnished eye-witness account of the incident and charged the accused and the absconding co-accused for the offence in question.
7. Dr. Gul Rehman, (P.W.5) Medical Officer, Civil Hospital, Hangu on 10-8-1995, at 9-49 p.m.
Conducted post-mortem on the dead body of the deceased and noted the following on external examination:--
(1) One fire-arm entry wound on the right side of chest on the back at the inferior angle of scapula, size 1/4" x 1/4".
(2) One fire-arm exit wound on anterior aspect of right shoulder, size 1/2" x 1/2".
(3) On internal examination, walls ribs, cartilages, right lung, pleurae and blood vessels were found injured, while the rest were found healthy. Stomach was also found empty and healthy."
8. After close of the prosecution evidence, the statement of the accused was recorded under section 342, Cr.P.C. Wherein he denied the prosecution allegations and claimed to have been falsely charged. He, however, opted to appear as a witness of his own under section 340(2), Cr.P.C.
And produced Sahib Noor and Muhammad Bilal in defence.
9. Learned trial Court after appraisal of evidence vide judgment, dated 20-3-2004 convicted and sentenced the appellant as narrated earlier.
10. Criticizing the judgment, Syed Muazzam Jamil, Advocate, for the appellant, had been convicted on the basis of vague, sketchy and partisan evidence, which should have been disbelieved; that the appellant had no motive to commit the offence, nor the motive as alleged by the prosecution was proved; that the trial Court has failed to assess the evidence in a legal and proper manner; that the, medical evidence is in conflict with the prosecution version and that conviction on capital charge cannot be based on abscondence alone. To substantiate the pleas, he placed reliance on Quresh v. The State PLD 2004 Pesh, 294; Humayuun v. The State 2005 PCr.LJ 337; Redi Gul v. The State 2001 PCr.LJ 1184; Mir Mat Khan alias Matokai v. The State 2002 PCr.LJ 1914; Saeedullah v. Shah Nazar and another 2001 PCr.LJ 1740 and Fida Hussain and another v. The State 2004 PCr.LJ 2052.
11. On the Other side, Mr. Muhammad Wasim Tariq, Advocate appearing on behalf of the State assisted by Mr. Abdur Rauf Gandapur, Advocate for the complainant, controverted the above submission of learned counsel for the appellant and argued that the trial Court has discussed every aspect of the case with minute particulars against the appellant and after appraising the evidence has rightly convicted the appellant but the learned trial Judge had no justification to take a lenient view and award lesser sentence to the appellant, which has resulted in complete failure of justice.
12. We have considered the contentions put forth on behalf of the parties in the light of the record of the case, which has been gone through carefully.
13. It may be noticed here that the prosecution case mainly rests upon ocular testimony, medical evidence, motive, recovery and absconsion. It is a case of solitary witness. P. Ws. Sahib Noor and Muhammad Bilal claimed to have accompanied the complainant at the relevant time and seen the occurrence, have been abandoned by the prosecution. These witnesses have been produced by the appellant in defence. Both these witnesses expressed their inability to give evidence in favor of either party due to fear. No doubt, it is true that the testimony of a sole witness, by itself, is not a demerit or disqualification, as can call for its repudiation and conviction can be based on the statement of solitary witness provided, the same is confidence-inspiring and the intrinsic worth of the same rings true and satisfies conscious of the Court regarding its truthfulness. Needless to emphasize that it is quality of the evidence which is to be seen and not quantity. In the instant case, we find that testimony of the complainant hardly inspires confidence and qualifies to be a truthful witness. It would be totally unsafe to rely on the testimony of sole eye-witness, who admittedly is closely related to the deceased being his father and whose conduct throughout the alleged occurrence had been quite doubtful, unnatural and improbable. The complainant has failed to justify his presence'at the spot at the time of occurrence. As stated above, complainant claims to have been returning back after attending marriage of his co-villager Asif. There is nothing on the file to prove that in fact the complainant had participated in the marriage ceremony and he was on the way back when the crime in question took place. No evidence in this regard is available on the file. It has been rightly contended by learned counsel of the appellant that accused would not have spared the complainant and his companions if they had been actually present at the time of occurrence. But as no harm was done to them, that makes their presence on the spot highly doubtful. In every criminal case particularly in murder case. The evidence of eye-witness is very important and there are numerous cases in which the accused were convicted on the solitary statement of one witness provided he was found to have given a straightforward and truthful account of the occurrence. In the instant case prosecution has miserably failed to prove its case. It is not denied that in cases of like nature based on the evidence of solitary witness, the prosecution is required to produce independent corroborative evidence direct or circumstantial before reliance can be placed on the deposition of such witness. In the present case, we do not find any independent corroboration of unimpeachable character.
14. The crime in question is alleged to have taken place on 10-8-1995 at 20-00 hours. The report about it was lodged the same day by the complainant at 22-00 hours at Civil Hospital, Hangu.
Ordinarily the delay of two hours in lodging the report may not have much significance, but in the present circumstances this case manifestly suggests that time was consumed in fabricating the story.
15. As regards the motive it is well-settled that once a motive is set up, then the prosecution is bound to prove the same. No evidence was led by the prosecution to show that accused were nursing grudge against the complainant as the in-laws of the complainant had given evidence against them. Motive has remained in mystery and never came to surface. The accused had no motive against the complainant so as to harm them in such a manner.
16. The accused and absconding co-accused are alleged to have fired indiscriminately at the complainant party. It is significant to note that no crime empty has been recovered from the spot to lend strength to the prosecution version.
17. The abscondence in this case. No doubt, is for a very long time but abscondence alone cannot be a substitute for real evidence. Mere abscondence of accused cannot be considered sufficient to sustain conviction. It is meaningless because it can neither remove the defects of the ocular evidence nor is by itself sufficient to justify conviction. The absconsion will be taken as corroborative piece of evidence only when there is convincing and unchallenged evidence led by the prosecution. This circumstance has wrongly been used as of corroborative evidence. In Muhammad lqbal alias Kali and another v. The State 2004 PCr.LJ 586 (Lahore) it was observed.
"Even otherwise, is noticeable that persons, who are suspected by the police, flee away out of fear of their arrest. It always may not be necessarily due to the fact that they feel themselves guilty. The fear of arrest even can compel them to get away to evade arrest. So, there was no such thing of the type of absconscion of the appellants, which could be used as a circumstance in corroboration to the circumstantial evidence."
18. Since the very presence of the eye-witness at the scene of occurrence is doubtful, therefore, the evidence of recovery of bloodstained maize crops, motive, medical evidence or abscondence, even if proved, cannot in any way advance the case of the prosecution.
19. In the final analysis of evidence, we are of the considered view that the alleged eye-witness was not present when the occurrence had taken place and his presence was procured subsequently.
His credibility has been shaken to the maximum possible limit, the benefit of which would go definitely in favor of appellant. One single, reason would be sufficient to discard the statement of a witness if it creates reasonable doubt in a reasonable mind regarding his presence at the spot.
20. For the reasons recorded above, we have entertained serious doubts about the claim made by the eye-witness produced by the prosecution. He has failed to receive any material corroboration from any independent source. While passing an order of conviction of an accused for murder, the Court has not only to be satisfied that the murder has been committed but it must also be satisfied that accused committed the murder. Before recording an order of conviction all the facts and circumstances of the case must be taken carefully into consideration and the golden principles of criminal justice must be borne in mind that in case of murder the onus of proof always lies upon the shoulders of the prosecution, and the case must be proved against the accused beyond any reasonable doubt.
21. For the foregoing reasons, we are of the view that the prosecution has not been able to prove case against the appellants beyond reasonable doubt; Consequently, we accept the appeal and set aside the conviction and sentence of the appellant and order his acquittal. The appellant is in jail. He is directed to be released forthwith if not required in any other case.
22. Since appeal has been accepted, the question of enhancement of sentence would not arise.
The criminal revision is dismissed as such.
' Above are the detailed reasons of our short order dated 8-6-2005 announced in open Court.