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 Salon'
Khan thus, he was handed down sentence of death with a fine of Rs, 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 RI under Section 13 A.0: 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 Majeed Khan, complainant (PW-10), father of the deceased, on 23.2.2005 at 6.15 a.m., he alongwith the deceased were proceeding to mosque known as "Jamia Masjid Abu Bakar Siddique (RA)" 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 no body in the mursaila report Ex. PA/1 which was taken down by Falak Nawaz, SI (PW- 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 PPC 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 deadit was handed over to the doctor for autopsy.
4. After registration of the case, Muhammad Hussain the then SI of investigative staff (PW-11) took hold of investigation. He prepared the site-plan Ex. PB at the instance of complainant Abdul Majeed Khan (PW-10), secured blood-stained earth Ex. P1, two crime empties Ex. P2 and two misfired rounds of 7.62 bore Ex. P3 from the crime spot vide memo Ex. 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 Ex. PC/1 which are Ex. P1 to Ex. P3. He also recorded the statements of PWs 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 him 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 Latit Khattak, situated in the same village. One unlicensed Kalashanikov Ex. P1 with fitted magazine containing 15 rounds of 7.62 bore was recovered from him which was secured vide recovery memo Ex. P7. The site-plan is Ex. PB. The opinion of the armourer of local police was obtained. The alleged crime rifle and crime empties were sent to the arms expert (FSL, Peshawar) wherefrom, report Ex. PZ was received in the positive while the chemical examiner report is Ex. PZ/1.
The complainant was produced before the Maga Magistrate on 1.3.2005 and his statement was recorded under Section 164 Cr.P.C. Three 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 record the post mortem report and after completion of investigation, filed charge sheet under Section 302 PPC in the trial Court, where, in the first instance, 8 PWs were examined when in the meanwhile, though the order of the High Court challan under Section 13 A.O., which by then was pending trial before the Maga Magistrate, was transferred to the Sessions Court for trial alongwith the present case thus, all the statements of the PWs already examined were re-recorded.
7. After addition of the charge under Section 13 A.O., the prosecution examined 11 PWs in all where after, 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 FIR none was charged by the 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 cartridge from the spot.
(iii) Arrest of the appellant after 5 days from the house of Latif Khattak situated in the same village alongwith Kalashnikov rifle.
(iv)The positive arms expert report with regard to the rifle and crime empties; and (v)The medial evidence.
10. True that motive whether proved or unproved would play on 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 including police officials investigating a criminal cast or revenue staff attesting mutations. According to the complainant, his deceased son by then was District Councillor 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. More so when there is no evidence on record that the deceased had extend 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 far fetched guests 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 the crime rifle is another intriguing aspect of the prosecution case. One Falak Nawaz, SHO (PW-8), marginal witness to the recovery mem Ex. PW8/1, 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 Ex. PW8/1 vide which the I.O. took into his possession a Kalashinkov butt No,A 096284 alongwith 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 Ex. 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 PW Muhammad Hussain, SI, who has shown the distance as about, one KM. The prosecution did not make any request to the trial Court fox 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 PW-8, whose statement was re-recorded after addition of the charge as (PW-2). He has also given similar statement and did not state anything about the recovery of the rifle/Kalashnikov from the appellant. This omission. A 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 Ex. 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 the I.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 independent 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 suggests 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 he 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 circumstances 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 as that features of the culprit were not given in the FIR. The claim of the complainant that he could identify the culprit, if was brought before him, is the result of traditional police 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 more so 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 in 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, any how, 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 inspite 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 vs. The State (PLD 1995 SC 475) and the other taken by the Apex Court in the case of, State through Advocate-General, Sindh, Karachi vs. 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 play an important role.
According to the view of Barrister John Collyer Adam and Barrister John Adam contained in their book under the title "Criminal Investigations", a person with sound eye sight may be able to recognize a 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 combindely, 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 FIR 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 can not 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 M.D.. Nazir Hussain Sarkar and another vs. The State (1969 SCM R 388) and in the case of Mst. Sairan alias Saleema vs. The State (PLD 1970 SC 56).
24.While defining/explaining the legal/judicial efficacy of circumstantial evidence, the erstwhile Hon'ble Federal Court in the case of Fazal Elahi alias Sajawal vs. The Crown (PLD 1053 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 to create 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 cases resting exclusively on circumstantial evidence, held, that this had resulted in failure of justice.
25.In the case of Muhammad Noor and another vs. Member-I, Board of Revenue, Balochistan and others (1991 SCM R 643) the apex Court held as follows:-- "S. 302/34--Appreciation of evidence. Case of no evidence. Motive/enmity 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 alongwith 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 leveled 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 of today.