' DOST MUHAMMAD KHAN, J.---At a trial held by learned Additional Sessions Judge-II Kohat, Muhammad Ibrar son of Gul Faqir, aged 31/32 years, was found guilty for the murder of Abdul Saifoor Khan thus, he was handed down sentence of death with a fine of R.1,00,000 to be paid as compensation to the L.Rs, of the deceased under section 544-A, Cr.P.C. He was further convicted and sentenced to two years R.I. Under section 13 A.O. For having in his possession an unlicensed Kalashnikov and its cartridges, vide impugned judgment, dated 11-12-2006.
' The appellant has questioned his conviction and sentences through the instant appeal while the learned trial Court has sent M.R. No, 35 of 2006 for confirmation of the death sentence awarded to the appellant.
'Arguments heard in considerable detail and evidence/materials minutely perused with the assistance of learned counsel for the parties.
2. According to Abdul Maieed Khan, complainant (P.W.10), father of the deceased, on 23-2-2005 at 6.15 a.m., he along with the deceasedwere proceeding to mosque known as "Jamia Masjid Abu Bakar Siddique (R.A.)" for offering "Fajar" prayer when the complainant heard reports of fire shots from behind and when he turned around, he saw the deceased falling on the ground, who died there and then. The complainant has further alleged in his report that he saw a person wrapped in a "Chadar" who fled away but claimed that he could identify the culprit, if was brought before him.
He charged nobody in the murasila report Exh.PA/1 which was taken down by Falak Nawaz, S.I.
(P.W.8) in the casualty of Liaqat Memorial Hospital, Kohat at 7-00 A.M. On that report, the case was registered initially under section 302, P.P.C. On the same date at 7.35 A.M. By PS Saddar, Kohat.
3. After preparation of the injury sheet and inquest report of the dead-body, it was handed over to the doctor for autopsy.
4. After registration of the case, Muhammad Hussain, the then S.-I. Of investigating staff (P.W.11) took hold of investigation. He prepared the site-plan Exh.PB at the instance of complainant Abdul Majeed Khan (P.W,.10), secured blood-stained earth Exh.P1, two crime empties Exh. P2 and two misfired rounds of 7.62 bore Exh. P3 from the crime spot vide memo Exh.PC which were sealed into parcel. The clothes of the deceased were brought to the spot after autopsy which were taken into possession vide memo. Exh.PC/1 which are Exh.P1 to Exh.P3. He also recorded the statements of P.
Ws. Under section 161, Cr.P.C.
5. On the following day of the occurrence, the complainant gave supplementary statement and charged the appellant. The suspicion fell on the appellant as per version of the complainant he was previously charged for the murder of Zamin Khan and while investigating that crime, the police used to visit his "Hujra" because his deceased son was then a member of District Council and on that account the accused generated suspicion that the deceased had played some role involving hiin in that case albeit he was acquitted in that case on the basis of compromise.
6. On the basis of the supplementary statement, the appellant was arrested on 28-2-2005 allegedly from the house of one Latif Khattak, situated in the same village. One unlicensed Kalashnikov Exh.P1 with fitted magazine containing 15 rounds of 7.62 bore was recovered from him which was secured vide recovery memo. Exh.P.7. The site-plan is Exh.P.B. The opinion of the armourer of local police was obtained. The alleged crime rifle and crime empties were sent to arms expert (FSL, Peshawar) wherefrom, report Exh.PZ was received in the positive while the chemical examiner's report is Exh.PZ/1. The complainant was produced before the Illaqa Magistrate on 1-3- 2005 and his statement wasrecorded under section 164, Cr.P.C. 4'hree days further police custody of the appellant was obtained and on its expiry, he was remanded to judicial lock up on his refusal to confess guilt. The I.O. Also placed on recorded the post-mortem report and after completion of investigation, filed charged sheet under section 302, P.P.C. In the trial Court, where, in the first instance, 8 P.Ws. Were examined when in the meanwhile, through the order of the High Court challan under section 13, A.O., which by then was pending trial before the Illaqa Magistrate, was transferred to the Sessions Court for trial along with the present case thus, all the statements of the P.Ws. Already examined were re-recorded.
7. After addition of the charge under section 13, A.O. The prosecution examined 11 P.Ws. In all whereafter, statement of accused was recorded under section 342, Cr.P.C. He denied the charge once again and then the impugned judgment was delivered.
8. It was admitted from both sides that the present case is based on circumstantial evidence because in the F.I.R. None was charged by the A complainant as he was not able to identify the culprit at the time of occurrence.
9. The prosecution has relied on the following pieces of circumstantial evidence:--
(i) Motive for the crime;
(ii) Recovery of two crime empties and misfired cartridges from the spot;
(iii) Arrest of the appellant after 5 days from the house of Latif Khattak situated in the same village along with Kalashnikov rifle;
(iv) The positive arms expert report with regard to the rifle and crime empties; and
(v) The.Medical evidence.
10. True that motive whether proved or unproved would play no decisive and incisive role in determining the guilt or innocence of an accused but when it is set up in a case based on circumstantial evidence, it definitely assumes importance one way or the other. The nature of motive in the present case is so frail, flimsy and obscure which in no manner would convince a prudent mind for resting a belief over it. The motive was having nexus with the complainant and being head of the family, why he was not made victim of assault. Hospitality and welcoming guests, is the deeply embedded tradition and heritage of our society. The elder of a village is supposed to entertain guests includingpolice officials investigating a criminal case or revenue staff attesting mutations. According to the complainant, his deceased son by then was District Councilor thus, if he had entertained the investigation staff in the earlier case then, in view of the established practice, it should not have been a cause of annoyance for the appellant. Moreso when there is no evidence on record that the deceased had extended help or appeared as a witness for the complainant party in the earlier murder case thus, the motive set up is not only weak but is also founded on farfetched guess work which has shrouded into a mystery and a begging question looking askance, for which the prosecution has no answer to give. The speculative mind set of the complainant is ill founded and being figment of his imagination, ridden by very remote possibilities thus, is of no legal worth.
11. The recovery of crime rifle is another intriguing aspect of the prosecution case. One Falak Nawaz, S.H.O. (P.W.8), marginal witness to the recovery memo. Exh.P.W.8/1, while giving statement on oath has almost brought the case to naught. The same is reproduced below:-- "I am also marginal witness to recovery memo Exh.P.W.8/1 vide which the I.O. Took into his possession a Kalashnikov butt No, A 096284 along with fix charger containing 16 live rounds Of same bore without license and permit, recovered from the house of Latif Khattak".
12. This witness is also author of, murasila report Exh.PA/1, the injury sheet and inquest report of the deceased. He has given the distance between the PS and the crime spot as 7/8 KMs but he is contradicted by P.W. Muhammad Hussain, S.-I., who has shown the distance as about one K.M. The prosecution did not make any request to the trial Court for his re-examination on the factum of recovery of the rifle from the possession of the appellant.
13. Another aspect, enough to disturb judicial mind, is that before the amendment of the charge, the second marginal witness to the same recovery memo, namely, Jehangir Khan was examined as P.W.8, whose statement was re-recorded after addition of the charge as (P.W.2). He has also given similar statement and did not state anything about the recovery of the rifle/Kalashnikov from the appellant. This omission. Fatal one, in a case of this nature, cuts the prosecution case from its root level and once the recovery of the crime rifle from the appellant has . Become doubtful then, the arms expert report Exh.PZ would be of no intrinsic worth for the prosecution. It is the second important link missing in the chain, of which the learned trial Court has not taken any notice with judicial care and caution.
14. Even otherwise, a look at the "Khaka Dasti" prepared by theI.O. Of the house of Latif Khattak, wherefrom, the appellant was allegedly arrested, would show that it consists of three bed rooms, one guest room besides a kitchen, boundary walls and main entrance gate with a small outer door.
No dependent witness was examined to link the appellant with Latif Khattak in any manner. The mystery as to how he got access to the said house remains unresolved. Who amongst the inmates were present at the relevant 'time, has been suppressed dishonestly. Another fatal blow was given to the case by the complainant himself who has deposed that the appellant was running a shop and that he did not know as to from where he was arrested and that he felt convinced about the involvement of the appellant in the crime because when he visited his shop, the appellant on seeing him ran away towards his house. This part of the story suggest that the appellant was not hiding anywhere much less in the house of Latif Khattak and was running his business as on the second day of the occurrence he was seen by the complainant in the said shop.
15. This conduct of the appellant of running his shop on the second day of the occurrence in routine and without any fear bespeaks volumes about his innocence and demolishes the story set up by the I.O. With regard to his arrest from the house of Latif Khattak and that too with the crime Kalashnikov. No man of prudence would retain a crime weapon with him knowing well that in case of arrest, it will connect his neck with the crime thus, the story tailored about the manner of arrest of the appellant appears a fabricated one and so is the recovery of the rifle.
16. The plea of the learned counsel for the complainant and for the State that because a single accused has been charged, therefore, this circumstance must override all doubts and glaring inconsistencies in the evidence adduced and as a rule of law he must be hanged is apt and fallacious and not tenable in law. It is well 'entrenched principle of criminal justice that conviction on a capital charge can only be recorded on the basis of, reliable, tangible and cogent evidence coming from unimpeachable source. The plea'taken is not based on the rule of law but is the birth principle of judicial wisdom, however, it cannot be made a sole ground for conviction nor it can be segregated/severed from the cardinal principle of justice that conviction on a capital charge must rest on evidence of absolute reliance which does not leave behind any doubt for debate about the guilt of an accused.
17. Another crucial aspect having decisive force in the whole case is that the appellant was already well known to the complainant being his co-villager whether as a foe or friend but inspite of that, he could not be identified by the complainant so much so that features of the culprit were not given in the F.I.R. The claim of the complainant that he could identify the culprit, if was brought before him, is the result of traditionalpolice chickanary and is absolutely fallacious thus, is unreliable. This concession can 'be availed only by a witness where the culprit was not previously known to him and who could be identified of having glimpse of his features and retaining it in his memory. Another legal condition for acting on such evidence is that the culprit after his arrest, is picked up in a properly conducted/held identification parade, which is not the case in hand thus, we are of the firm view that right from its commencement up to the end, the investigations conducted were not above board moreso when the evidence about the recovery of the rifle was fabricated at a latter stage without any supporting and reliable independent corroboratory evidence.
18. Admittedly, the occurrence has taken place between dusk and dawn because according to the complainant, he and the deceased were proceeding to the mosque for offering "Fajar" prayer. "The time of occurrence shown is 6.15 A.M. Albeit the facts and evidence brought on record suggest that crude attempts have been made in bringing the time of occurrence from dusk to dawn, anyhow, in the month of February at such a time the sun was to rise at 7-05/7-10 A.M. While the morning prayer time was 5-40 a.m. Thus, the legitimate inference would be that both were going to the mosque for offering the prayer in congregation when by then according to the standard diary time, still there was sufficient dark, therefore, the culprit could not be identified by the complainant in spite of the fact that both are co-villagers by birth and were having close interaction. The distance shown in the site-plan between the complainant and the accused is 8 full paces equal to more than 30 feet which has further baffled the story of doubtful identification of the culprit.
19. The visual identification at dark hours or semi dark hours with momentary glimpse falls within the category of suspect evidence and has never been considered safe and sound for conviction unless the same is substantially corroborated and there was no obstacle intervening between the two. Reliance in this regard may be placed on the view taken by the Hon'ble Supreme Court in the case of Muhammad Arshad v. The State (PLD 1995 SC 475) and the other taken by the apex Court in the case of State through Advocate-General, Sindh, Karachi v. Farman Hussain and others (PLD 1995 SC 1).
20. The right perception of an object seen by a witness at dark hours also greatly depends upon the capacity of the eye-sight of the witness besides the duration of visual identification also plays an important role.
' According to the view of Barrister John Cotlyer Adam and Barrister John Adan contained in their book under the title "Criminal Investigations", a person with sound eye sight may be able to recognizea person in moon light, if it is at the quarter, another person at a distance from 21 feet while in a brightest moon this distance is increased up to 23 to 30 feet.
21. Leaving apart the suspicious circumstances regarding correct perception/visual identification, it is the case of the complainant that he was ahead of the deceased and on hearing, the fire shots he turned his face, saw the deceased falling on the ground and a man clad in a "Chadar" was running away from the spot. The words "running away" undoubtedly suggest that by then the culprit was having his back towards the complainant thus, taking/catching glimpse of his features was-absolutely impossible. All these facts and factors when are considered combinedly, their cumulative effects thus, would be. That either the complainant was not present with the deceased or he being an old man of highly advanced age not having sound eye sight, could not see the culprit and for this very reason he did not charge the appellant in the F.I.R. Albeit he was well known to him as stated earlier.
22. At the latter stage, implication of the appellant in the crime through the planted recovery of rifle, in our view, is the result of foul play committed by the I.O. In any case, such superficial cosmetic improvements in no manner would advance the prosecution case rather rendered it more doubtful thus, it cannot be relied upon for the purpose of recording conviction and that too on a capital charge involving death sentence.
23. It is bed rock and fundamental principle of universal application that in cases, which are fully dependent on circumstantial evidence, to justify the inference of, guilt, the incriminating fact/facts must be incompatible with the innocence of the accused or the guilt of any other person and in no manner be incapable of explaining upon any other reasonable hypothesis than that of guilt of the accused. Reliance in this regard may be placed on the principle laid down by the Hon'ble Supreme Court in the case of Md. Nazir Hussain Sarkar and another v. The State (1969 SCM R 388) and in the case of Mst. Sarian alias Saleema v. The State (PLD 1970 SC 56).
24. While defining/explaining the legalijudicial efficacy of circumstantial evidence, 'the erstwhile Hon'ble Federal Court in the case of Fazal Elahi alias Sajawal v. The Crown PLD 1953 FC 214) has laid down a fundamental principle as under:- "Circumstantial evidence supported by defective or inadequate evidence.-- ' A mere concurrence of circumstances, some or all of which are supported by defective or inadequate evidence, is apt tocreate suspicious appearance, which is calculated to lead to fallacious inference. Hence, the necessity of accepting, as the basis of inferences, only circumstances as are "well-authenticated".
' Where there are indications of design, in the preparation of a case resting on circumstantial evidence, the Court should be on its guard against the possibility of being deliberately misled into false inference.
' Where the Courts below had overlooked certain essential principles applicable to the scrutiny of the proof adduced, and to the drawing of inferences in case resting exclusively on circumstantial evidence, held, that this had resulted in failure of justice".
25. In the case of Muhammad Noor and another v. Member-I, Board of evenue, Balochistan and others (1991 SCM R 643) the apex Court held as follow:-- "Section 302/34-Appreciation of evidence-Case of no evidence--Motive/emnity or the matter of abscondence of accused has no value at all so long as direct evidence is not forthcoming-So long a substantive or direct piece of evidence is not available no other type of evidence, howsoever convincing it may be, can be relied upon or can form the basis of conviction. "
26. Judged from all the above legal and factual angles and on deep and careful reappraisal of evidence, we are of the firm view and feel no hesitation, to hold that the prosecution has miserably failed to establish the guilt of the appellant beyond any reasonable doubt thus, while extending such benefit to him, the appeal of the appellant Muhammad Ibrar son of Gul Faqir is allowed. His conviction and death sentence recorded by the learned trial Court vide impugned judgment, dated 11-12-2006 along with the fine amount are set aside. Similarly his conviction and sentence under section 13 A.O. Is also set aside and he is acquitted of all the charges levelled against him. He be set free forthwith if not required in any other case.
' Murder Reference No,35 of 2006 sent by the learned trial Court under section, 374, Cr.P.C. Thus, is not confirmed.
' These are the detailed reasons for our short order of today.