' DOST MUHAMMAD KHAN, J.---This single judgment shall also decide connected Criminal Revision No, 138, of 2009 entitled "Mst. Salamat Bibi v. The State and another" because both have arisen out of a common judgment.
2. At a trial, held by learned Sessions Judge Swabi, on 13-10-2009, the appellant namely, Abdul Hayat, was found guilty thus, he was convicted under section 302(b), P.P.C. And sentenced to life imprisonment with a fine of Rs,50,000 as compensation. He was also convicted under section 449, P.P.C. And sentenced to five (5) years' R.I with a fine of Rs,25,000 or in default thereof to suffer one year's S.I. Both the sentences were directed to run concurrently while the benefit of section 382-B, Cr.P.C. Was given.
3. Arguments heard in considerable detail and record/evidence carefully perused.
4. The Crime Reporter, Mst. Salamat (P.W.10) alleged in her report to the police on 1-10-2007 at 5-00 A.M., that at the fateful time she was cooking meal for "Sehri" while the deceased was taking bath inside the bathroom when in the meanwhile the appellant and acquitted accused Muhammad Hayat, duly armed, entered the house and under the command of Muhammad Hayat the appellant fired at Muhammad Zaraish, who by then was in the bathroom, as a result, he was hit and killed on the spot. The occurrence was witnessed by Zar Wali (P.W.11), the minor son of the deceased.
5. Admittedly, the occurrence took place at dark hours of the night; however, the complainant alleged that she identified the accused in the light of the lit electric bulb. Motive for the crime was shown a dispute over women-folk.
6. The deadbody was dispatched to the mortuary along with the inquest report and injury-sheet while the Investigating Officer went to the spot. From the crime spot, the Investigating Officer secured blood, vide memos Exh.P.W.4/1, one electric bulb of 100 Watts Exh. P.W.4/2 and one empty of 7.62 bore Exh.P.W.4/3 and prepared the site plan Exh. PB.
7. The appellant was arrested on 12-11-2008. At his instance from a box, lying in his house, the crime rifle was recovered which was secured through memo Exh.PC.
8. During autopsy on the deadbody, one fire arm entry wound measuring 1/4" x 1/4" was found on the front right side of chest near shoulder with corresponding exit on the back of left side of chest measuring 1" x 1/2". The cause of death is shown injury to the heart and lungs and death was opined to be instantaneous. The deadbody was examined at 5-35 A.M. While the duration between death and post mortem is given three (03) hours.
9. In the site plan notes, the Investigating Officer has recorded his observation that the height of the walls of the bathroom was three (3) feet and similarly the parameter walls of the house were of the same height. The bulb was recovered from point-A at the top of the entry door of the bedroom while the complainant was present in the kitchen but she has been shown at point-2, in contrast to the F.I.R. Version because that is the doorstep of the kitchen while in the F.I.R. The complainant has stated that she was busy in cooking/preparing "Sehri". Zar Wali (P.W.11) is shown at point-3, close to the entrance door of the bedroom, who according to the evidence was not fasting in those days being minor.
10. The inter se distances of the parties and particularly of the bulb, not clearly shown but discernible, keeping in view the corresponding distance between point 1 and 3, shown as 10/11 full paces which comes to about 40 feet. The most begging question arising here is that of identification.
11. As discussed above, the complainant was supposed to be inside the kitchen because she was busy in cooking "Sehri" and should not have been at point-2, the entry door of the kitchen as no meaningful purpose has been shown of her presence at point-2. This appears a dishonest attempt on the part of the Investigating Officer.
12. There is a street running by the side of the bathroom and if the height of the walls is taken to be 4 to 5 feet, the deceased could be easily targeted from outside the house and there was no need for the culprits to enter the house. Otherwise too, it appears that the culprits were waiting for the moment and as soon as the deceased came out and was bathing, he was fired upon.
13. Another unnatural and unbelievable aspect of the case is that in crimes committed at night time, the anxiety of the culprit entertain is to conceal his/their identity instead of exposing themselves to be identified, therefore, if at all both the accused had come there to kill the deceased, what was the need of the command/loud shout of the acquitted co-accused commanding the appellant to kill and why both did not fire at the deceased when they both were armed with formidable weapons:
14. The next vital and decisive point in the case is that Muhammad Hayat, co-accused, was jointly tried with the appellant but he was extended the benefit of doubt because of the role of "Lalkara" attributed to him. The acquittal order attained finality because the High Court dismissed the appeal against his acquittal much earlier.
15. Keeping in view the peculiar facts and circumstances of this case, the role of the co-accused could not be taken as a mere case of proverbial "Lalkara" because besides the community of motive between the two accused, the common intention of both on the strength of the charge and the evidence could not be sifted from one another because at such odd hours of the night both made preparation for commission of the crime by coming to the crime house jointly, both were duly armed with the same kind of weapons and after consummation of the crime, both left the spot jointly. Not only before the police but at the trial too, the witnesses while deposing on oath charged the co-accused equally with the appellant but they were disbelieved qua the acquitted co-accused, therefore, once they were found telling lie about the involvement of the co-accused then, very strong independent corroboratory evidence was required to substantiate the ocular account but unfortunately no such evidence is available with the prosecution.
16. Motive was common to both the accused but it was disbelieved qua the acquitted co-accused, therefore, it cannot be tagged with the present appellant too.
17.
The next piece of evidence is the recovery of the crime weapon/Kalashnikov rifle, recovered at the instance of the appellant, however, when the crime empty and the crime rifle were sent to the arms expert for comparison and opinion, the expert reported back that after due examination the alleged crime rifle was not found in working condition and was not serviceable, therefore, matching of the empty could not be carried out with the rifle as no test fire could be made through the rifle in question. This is a strong circumstance adversely reflecting upon the bona fide of the investigation and it appears that the crime rifle was not recovered at the instance of the accused but was plotted against him.
18. Learned counsel for the appellant pointed out that the crime empty was sent to the expert earlier before the recovery of the weapon but it was sent back to the police station by the expert and remained there for a considerable time till the recovery of the crime weapon. How and by whom it was retained in safe custody, who dispatched both to the expert and who was the carrier of the same, therefore, the safe transition of both to the laboratory is not established.
Notwithstanding the above dishonesty committed by the police when the crime empty has not been found wedded with the rifle, as discussed above, it is of no help to the prosecution, therefore, the corroboratory evidence to this effect is of no legal worth or judicial efficacy to be relied upon.
Reliance in this regard may be placed on the view held by the Hon'ble apex Court in the case of Umar Hayat v. The State (PLD 1995 SC 526) Again in the case of Muhammad Hanif v. The State 1992 ALD 241 it was held that plantation of pistol falsely against the accused is a sufficient fact to reject the whole case, hence, on this score the prosecution case becomes entirely unbelievable.
19. It is a consistent view of the Courts that identification of culprits through fleeting looks at night time comes within the category of suspect evidence, the same would, therefore, require very strong corroboration otherwise, it would not be acceptable and believable and that too, in capital offences for carrying conviction. Reliance in this regard is placed on the view held by the Hon'ble apex Court in the case of Muhammad Arshad v. The State (PLD 1995 SC 475).
20. In the case of Shahzado v. The State and 8 others (PLD 1977 SC 413) the Hon'ble apex Court laid down the following principle with regard to the nature and substance of corroboratory evidence.
The same is reproduced below:- "Corroboration:-Corroboratory evidence must proceed from a source independent of an extraneous to the person, whose evidence is to be corroborated. Corroboration may consists of direct or circumstantial evidence and it need not amount to confirmation of the whole story of the witness to be corroboratory so long, it corroborates such evidence in some respects material to issue or charge under consideration. Extent and degree of corroboration rests on judicial discretion of the Court and varies with facts and circumstances of each case".
' Again, it has been consistently held that if the ocular account is of impeachable nature and of no worth to be relied upon then, best corroboratory evidence would in no manner enhance the value of such ocular account.
21. In the instant case, the evidence of the second witness namely, Zar Wali (P.W.11), is of no legal worth nor it is credible to be relied upon for two fold reasons i.e, being minor, therefore, his mind set could be moulded by the wiser hand in the manner its like because such preteen is susceptible to the influence of outside quarters. It is unbelievable that this witness being minor and as has been admitted was not fasting, therefore, his rising from the bed at "Sehri" time is a fact, not acceptable to a prudent mind, therefore, the same can safely be discarded.
22. In the case of Sattaro v. The State (PLD 1988 Kar. 350) and in the case of Ghulam Sikandar and another v. Mamaraz Khan and others (PLD 1985 SC 11) it has been held that when witnesses are found making false statement against one accused then they loses integrity and their testimony cannot be believed qua the other accused unless to that extent it is strongly corroborated by independent corroboratory evidence. In this case, the evidence of the complainant was needing corroboration because she and her son both were disbelieved qua the acquitted co-accused, however, their testimony is not supported by any corroboratory evidence independent in nature even with regard to the appellant, hence, cannot be relied upon.
23. In the compiled book entitled "Criminal Investigation" by John Adam, Bar-at-law, and John Collyer Adam, Bar-at-law, at page 150, the approximate distances at which one can identify a man in a moonlight or in the light of a bulb has been fixed at 21 feet while in brighter moonlight at 23 feet but in this case the distance is almost 40 feet, therefore, it was difficult rather impossible to identify the culprits, who were having their back towards the complainant, as shown in the site plan.
24. Judged and considered from all the above angles, we are of the firm view that the prosecution has miserably failed to prove the guilt of the appellant beyond any shadow of doubt, therefore, while extending the benefit of doubt to the appellant, his appeal is allowed. The impugned judgment of the learned Sessions Judge, Swabi dated 13-10-2009, awarding him life imprisonment and imprisonment for five (05) years plus compensation and fine amounts, is set aside and the appellant is acquitted from all the charges levelled against him. He be set free forthwith, if not required in any other case.
' The Criminal Revision No,138 of 2009 entitled "Mst. Salamat v. Abdul Hayat and another", seeking enhancement of the sentence has thus become infructuous and is dismissed.
' These are the detailed reasons for our short order of the even date.