Appellant Sajjad Ali, alias Mettogray, was tried by learned Additional Sessions Judge, Nowshera, on the allegations of having, on 11-2-2002 at 9.00 a.m. in furtherance of his common intention with absconding co-accused, committed murders of Mst. Kausar, Mst. Shaila and Abid, by firing. At the conclusion of trial, vide judgment, dated 10-62004, the appellant having been found guilty, was convicted under Section 302(b), P.P.C. on three counts and sentenced to suffer life imprisonment, with a fine of Rs. 1,00,000 for each murder, payable to the legal heirs of deceased as compensation under Section 544-A, Cr.P.C. The appellant was also convicted under Section 458, P.P.C. and sentenced to undergo five years' R.I. and to pay fine of Rs. 10,000 or in default whereof to suffer five months' S.-I. The benefit admissible under Section 382-B, Cr.P.C. was extended to the appellant. All the sentences were ordered to run concurrently.
2. Sajjad Ali appellant has filed Criminal Appeal No. 529 of 2004, to challenge his conviction and sentence. Mst. Mah Pari complainant has filed Criminal Revision No. 145 of 2005, seeking enhancement of sentence awarded to the appellant. Both the matters were heard together by a Division Bench of this Court, comprising of Hon'ble Mr. Justice Ejaz Afzal Khan, and Hon'ble Mr. Justice Raj Muhammad Khan. Mr. Justice Ejaz Afzal Khan, senior member of the bench, finding the presence of the appellant in the crime house and his participation in the offence, highly doubtful, accepted the appeal, set aside the impugned conviction and sentences recorded by the trial Court and acquitted the appellant by judgment, dated 13-7-2006, observing:-- "I may not doubt the presence of the complainant in the bathroom at the relevant time. Her narration as far as the charge against Gul Riaz, his father and another absconding co-accused is concerned, may not be suffering from any discrepancy. But the charge against the appellant appears to be doubtful, when no such motive has been attributed to him, as could motivate him to go to an extreme of taking the lives of three persons. Another P.W., no doubt, appeared in support of the complainant but his account cannot be taken to be corroborative of that of her vis-a-vis the complicity of the appellant in the crime. Firstly because his name does not figure in the F.I.R., secondly because it is self-contradictory and thirdly because his presence on the spot at the relevant time has not been satisfactorily accounted for. The presence of the appellant on the spot and his participation in the crime, in this backdrop, appear to be highly doubtful. His voluntary surrender, his plea of alibi and the evidence led in this behalf give added vigor to the aforesaid conclusion. I, therefore, do not think, that it would be in accord with the safe administration of justice to maintain the conviction of the appellant, particularly when the possibility cannot be ruled out that the occurrence could be a doing of the absconding co-accused and that the appellant was roped in because of his relationship with them-a feature which runs across the fabric of every criminal case registered in this part of the country'.
3. Hon'ble Mr. Justice Raj Muhammad Khan, took contrary view of the matter and partially accepted the appeal holding:-- "In view of what has been stated above, this appeal does not merit vis-a-vis the murder of the two ladies is concerned and thus the conviction and sentence of the accused-appellant which has been awarded to him under Section 302, P.P.C. by the trial Court is maintained on two counts for the murder of the two ladies. However, the conviction and sentence awarded to the accused- appellant under Section 458, P.P.C. is not maintainable as this section does not apply to the case because the occurrence has taken place at 9.00 a.m. in the daylight which is accordingly set aside.
However, holding that since there is no direct worth consideration evidence against the accused- appellant in respect of the murder of Abid, he is given-benefit of doubt and consequently, his appeal to the extent of the charge of murder of Abid deceased, is partially accepted."
4. On the occurrence of difference of opinion between the Hon'ble Judges, the hearing of this case for the resolution of difference of opinion was assigned to me on 29-7-2006.
5. Mr. Khawaja Muhammad Khan Gara, Advocate for the appellant vigorously contended that the trial Court has misread and mis-appreciated the evidence on record and has come to the conclusion contrary to evidence on record; that the witnesses produced were interested and their evidence do not find corroboration from any other independent source; that Mst. Mah Pari complainant was not present in the crime house at the time of occurrence because she is not consistent on the purpose of her visit of the house of her daughter Mst. Kausar deceased; that she was summoned from Rawalpindi and had made report after consultation and deliberation; that P.W. Adnan, grandson of the complainant, has given an altogether a different version of the incident; that the appellant had no motive to participate in the crime; that the occurrence had not taken place in the manner as alleged and that learned trial Court has erred in law by discarding the plea of alibi raised by the appellant.
6. Mr. Obaidullah Anwar, learned A.A.-G. for the State assisted by Mr. Shah Nawaz Khan, Advocate, learned counsel for the complainant, maintained that the occurrence took place on 11-2-2002 at 9.00 a.m. and the F.I.R. was lodged at 9.45 a.m. same day. Thus, the F.I.R. was lodged promptly without unnecessary loss of time, therefore, the chance of deliberation and consultation with others to wrongly involve the appellant is excluded. The detail of the occurrence has been elaborately explained in the F.I.R. It is, therefore, a credible document which gets support from the statements of complainant and Adnan. The motive for the occurrence stands proved beyond any doubt. The statements of prosecution witnesses are confidence-inspiring and the same did not suffer from any infirmity or material contradiction. The appellant in his statement under Section 342,Cr.P.C. stated that he had been falsely involved in this case by the complainant party due to enmity and on account of the relationship of the P.Ws. with the deceased. But he has not been able to establish any enmity with the P.Ws. Despite lengthy cross-examination, the veracity of the P.Ws. could not be shaken by the defence. Slight variations in the statements of the witnesses cannot be termed to reduce the intrinsic value of the statements of the said witnesses. It was also contended that the ocular account furnished by natural witnesses of the occurrence, has intrinsic value and the same is duly corroborated by medical evidence.
7. It is a known and settled principle of law that prosecution primarily is bound to establish guilt against the accused without shadow of reasonable doubt by producing trustworthy, convincing and coherent evidence enabling the Court to draw conclusion whether the prosecution has succeeded in establishing accusation against the accused or otherwise and if it comes to the conclusion that the charges so imputed A against the accused have not been proved beyond reasonable doubt, then the accused becomes entitled for his release on getting benefit of doubt in the prosecution case. The requirement of the criminal law is that the prosecution is duty bound to prove its case beyond any reasonable doubt and if any single and slightest doubt is created, it must go to the accused and is sufficient to discredit the prosecution story and entitles the accused for acquittal.
8. Having considered the matter from all angles in the light of the material on the file and the case law cited at bar by learned counsel for the parties in support of their respective contentions, I find that the prosecution evidence in quality and character is wanting so as to result in conviction of the appellant. It is highly unsafe to place the reliance on the testimony of the complainant and her grandson Adnan P.Ws. The sole testimony of the complainant is not sufficient to prove the charge against the appellant. Even otherwise statement of complainant is highly doubtful and his conviction cannot be based on such type of weak evidence. Her statement is not reliable and the trial Court has wrongly believed the same to award the conviction and sentences to the appellant.
The deposition of the complainant and Adnan are inconsistent inter se and stand belied by the medical evidence and the site-plan. The appellant had no motive to commit the delict nor could the prosecution prove any against him. The occurrence does not appear to have taken place in the manner as alleged. The F.I.R. in this case had not been lodged at a police station and it is generally understood that in such a situation it is more likely that the F.I.R. had been registered after due consultation and deliberation by the complainant party and preliminary investigation by the police at the spot. For all these reasons availability of the above mentioned eye-witnesses at the scene of crime at the relevant time has been found by me to be quite suspect. The impugned judgment suffers from a number of legal and factual infirmities and the trial Court has not been able to prove beyond the doubt that the accused was involved in the crime.
9. As far as medical evidence furnished by lady Dr. Nageena Akhtar and Dr. Fazle Rabbi, is concerned, it being in nature of confirmatory evidence, cannot be considered corroborative evidence. In view of the dimensions and sizes of injuries found on the person of the deceased, the possibility of one man, having committed the crime, cannot be excluded.
10. With regard to abscondence, suffice it to say that when otherwise evidence on the record is not credible and worth reliance, the mere re fact that an accused remained absconder cannot remedy the defects and infirmities in the prosecution case. Abscondence as its best can be taken as corroborative evidence and not evidence of the charge.
11.It may be pertinent to mention here that during investigation of the case certain crime empties of 7.62 bore and .30 bore pistol were recovered from the spot and taken into possession. The empties have not been sent to the Fire-arm Expert for the ascertainment of the fact whether fired from one weapon or more of the same calibre/bore or more.
12.The appellant is a Carpenter by profession working at MES Nowshera. He has specifically taken the plea of alibi, stating that at the relevant time he was present on duty at School of Armour. He submitted a certificate regarding his presence in his office. The trial Court has not appreciated the plea of alibi taken by the appellant. This has resulted in grave miscarriage of justice. The plea stands satisfactorily proved. Thus on this score the appellant was entitled for acquittal.
13.If oral evidence is discarded then no conviction can be based on corroborative piece of evidence. After considering the material available on record, I am of the view that the case of the prosecution is highly doubtful against the appellant, therefore, he is entitled to the benefit of doubt, which was accordingly given to him by my learned brother Mr. Justice Ejaz Afzal Khan. The learned State counsel could not controvert the inherent defects in the prosecution story which is available on record. As such, the case of prosecution has become very doubtful and the ocular testimony is not reliable and trustworthy.
14. Pursuant to above, I agree with my learned brother Mr. Justice Ejaz Afzal Khan and hold that the prosecution has failed to prove its case against the appellant beyond reasonable doubt. The appeal is allowed, the conviction and sentence recorded by the learned trial Court is set aside and the appellant is acquitted of the charges levelled against him. He shall be set at liberty forthwith, if not required in any other case.
As both the Hon'ble Judges of the Division Bench have dismissed Criminal Revision No. 145 of 2005, filed by Mst. Mah Pari complainant, for enhancement of the sentence awarded to the appellant, therefore, I need no comment upon the same.