JUDGMENT MUHAMMAD SAFDAR KHAN STK ANDARI, J,--Through the instant appeal, Imran Shah appellant has called in question the impugned judgment dated 6-1-2009 passed by learned Additional Sessions Judge-V, Bannu whereby he was convicted under section 302(b), P.P.C. And sentenced to imprisonment for life with a fine of Rs.1,00,000 (Rupees one Lac or in default of payment of fine, to undergo further six months' S.I. He was also burdened with compensation of Rs.2,00,000 under section 544(A), Cr.P.C. Or in default of payment, to undergo six months' S.1. The appellant was further convicted under section 449, P.P.C. And sentenced to five years' R.I and fine of Rs.50,000 or in default, to undergo six months' S.T.
2. The succinct facts arising out of the prosecution case are to the effect that on 29-10-2003 the complainant Mst. D.1 Pari Jana brought the dead-body of her son Ahmad Yar Shah to the Police Station and lodged the report that she had gone to the house of her son for 'Mari'. She was busy in taking meals when in the meanwhile Imran Ali Shah and Israr Ali Shah entered into the house of her son and both of them started firing on her son with their Kalashnikovs as a result of which, her son sustained injuries and died on the spot. After the occurrence, the accused decamped from the spot. Motive for the occurrence, as disclosed by the complainant, was previous blood feud between the parties.
3. It is worth mentioning that accused Israr Ali Shah faced trial previously and was acquitted vide judgment dated 23-6-2005. The accused-appellant was absconding. On his arrest, supplementary challan against him was submitted in the trial Court. In order to prove its case against the accused-appellant, the prosecution examined as many as eleven P. Ws. The accused-appellant was also examined under section 342, Cr.P.C. But he denied the allegations. However, he produced Mst. Neelam Bibi as, defence witness. After hearing the arguments of learned counsel for the parties, the learned trial Court convicted and sentenced the accused-appellant vide impugned judgment referred to above.
4. Learned counsel for the accused-appellant contended that it is a night occurrence and has not been seen by anybody but the accused-appellant has been falsely involved due to previous blood feud. He further contended that the only eyewitness is the mother of the deceased who is a related solitary witness to the occurrence and her testimony cannot safely be believed. He went on to argue further that accused Israr Ali Shah whose role was at par with the accused-appellant has earlier been acquitted, therefore, on the basis of principle of consistency, the present accused- appellant also deserves to be acquitted. Regarding abscondence of the accused-appellant, learned counsel for the appellant contended that the accused appellant was abroad in connection with earning his livelihood and when returned back to the country, he learnt, about his involvement in the case and accordingly surrendered to the local police. He went on to argue that abscondence alone is not sufficient for sustaining the conviction of the accused-appellant when otherwise, the prosecution failed to establish the charge on the basis of cogent and reliable evidence.
5. On the contrary, learned State counsel assisted by privately engaged counsel for the complainant argued enthusiastically that the accused-appellant is directly charged_ in the promptly lodged report; that the eye-witness being mother of the deceased is a natural witness and her testimony cannot be discarded easily. He further contended that the prosecution case is also proved from other circumstantial evidence in the shape of recoveries and medical evidence. It was also argued that the accused-appellant remained fugitive from law for sufficient long time which is a pointer towards his guilty conscious, therefore, the learned trial Court was right in convicting the accused-appellant and the same may graciously be maintained.
6. We gave our considered thought to the arguments addressed at the bar and gone through the materials available on file.
7. In this case the ocular evidence consists of statement of Mst. D.1 Pari Jana (P.W.2) who happens to be the mother of the deceased. So, we are to be conscious about this witness being very closely related to the deceased. It is a settled law, that when a witness in an offence of capital punishment is closely related and that too, a solitary, it must be corroborated by independent evidence like circumstantial and medical evidence. We would first discuss this aspect of the case in order to reach the correct conclusion.
8. It is an admitted fact that Mst. D.1 Pari Jana is mother of the deceased. We have to find out as to whether her statement is corroborated by any independent source or not. Straightaway, we cannot discard her evidence because of her close relationship with deceased and her alleged presence inside the house where the occurrence has taken place. In her statement, she has supported the prosecution case as set out in her report lodged in the Police Station. This witness appeared as P.W.2. The first point to be noted in examination-in-chief is that according to her version, she along with deceased son were sitting inside the room having Iftar meals with them. It is also in her statement that it was Maghrib Azan prayers time. It means that no food was yet taken by the deceased. As against this, in the F.I.R., she has stated that she along with her deceased son were busy in eating Iftar. This is first material contradiction regarding eating the meals. This contradiction is further corroborated by the doctor who has stated in the postmortem report and his statement that stomach of the deceased was empty having some secretion. So, on one hand, according to the Court statement of the eye-witness and medical report, the stomach of the deceased was empty and no food was ' taken by the deceased while in the report, it is contradicted in her report that the deceased was busy in eating meals. This contradiction reflects that either P.W.2 was not present at the time of occurrence or she is telling lie and both these cases are not favouring the prosecution.
9. As far as F.S.L report is concerned, it also negates the version of the complainant. According to the report made by the complainant, the accused facing trial along with acquitted accused fired at the deceased with which he was hit, meaning thereby that two weapons were allegedly used by the two accused. The F.S.L report is on file as Exh.P.W.6/6. According to this report, all the seven empties of 7.62 mm bore were fired from one and the same bore weapon. It again creates a serious doubt about the presence of the eyewitness. Either she was not present on the spot at the time of occurrence or she is telling lie and in this way, she has tried to throw the net were to implicate two persons. Here another doubt arises as to which one out of the accused fired at the deceased. This is also a doubt even to destroy the foundation of the prosecution case against the accused facing trial.
10. It is a settled principle of law that solitary witness who is closely related to the deceased, his statement must be scrutinized. According to the report, the motive given was previous blood feud.
This is a motive set up in the F.I.R. As well as the statement of P.W.2. This means that the family of the P.W. Had previous blood feud with the accused party and resultantly, she has become an interested witness besides being closely related to the deceased. Even on this ground, her statement may be straight away discarded. The essential requirement for report in similar cases is to satisfy that whether the eye-witness is natural and was present on the spot and also to see whether she is telling truth and also to examine whether her statement is corroborated by any other independent source or not. It is also a settled principle that conviction cannot be based on the evidence of a solitary witness who is closely related and has motive to implicate the accused falsely. Reference may be given to PLD 2003 SC 644 wherein its is held that:-- "There is no gainsaying that the evidence furnished by interested witness ordinarily cannot be discarded merely for the reason that they had relationship with the victim/deceased. However, for safe administration of justice it becomes the duty of the Court to look forward for corroboration of such evidence from independent source with a view to explore truth for the purpose of reaching at a just conclusion."
11. As stated above, the presence of the eye-witness is doubtful on the spot. The second requirement is the truthfulness of the witness which is again missing in this case for the reasons firstly; that in the F.I.R., she has stated that they were busy in taking meals while the medical report negates this as the stomach of the deceased was empty and secondly; that the said report opines that the injuries were caused by one and the same 7.62 bore weapon while in the report the P.W.
Has charged both the accused for effective firing with their kalashnikovs. These are contradictions which reflect adversely on the testimony of this solitary witness.
12. The contradiction as pointed out above in the medical evidence and the ocular evidence also creates doubt. As pointed out above, according to the eye witness, the deceased was busy in taking food at the time of firing which means that he had taken some food and there should have been something in the stomach but the doctor has opined that the stomach of the deceased was empty. This situation has been discussed in the case of Mst. Jallan v. Muhammad Riaz and others PLD 2003 SC 644 wherein it is held that:-- "So far as medical evidence is concerned, as per the statement of P.W. Dr. Asif Ali Khan, deceased Muhammad Aslam sustained injuries on his person with shotgun as the pellets were found in the seat of injuries whereas the consistent plea of the appellant Mst. Jallan and P.W. Sher was that respondent Muhammad Nawaz and Allah Yar used rifles to kill deceased as such inference can be drawn that contradiction in both the evidence i.e. Medical and ocular has created doubt in prosecution case."
We may also refer 2003 PCr.LJ 2003 wherein the same principle has been laid down that whenever the statement of eye witness is in conflict with medical evidence, it is liable to be ruled out of consideration.
13. Besides this, there is defence evidence produced by the accused. The accused has produced Mst. Neelam who happened to be the were of the deceased. In her statement, she has stated that she was present along with the deceased in the courtyard when in the meanwhile some unknown person entered, fired at the deceased and after hitting, he ran inside the room followed by that unknown person who again fired at him which resultantly caused his death. D.W.1 who is also supposed to be present along with her deceased husband, has given a different version to the effect that it is not the accused who fired at the deceased but some unknown person while the version adopted by the complainant is that it is the "accused who done to death the deceased. If we place these two versions in juxtaposition, the version of DW-1 seems to be nearer to truth because it is in the evidence of complainant that some unknown hired assassin had murdered his other son earlier, so, possibility is there that the deceased was done to death by some hired assassin. This evidence also made the case of the prosecution highly doubtful. Otherwise also, other doubts are available in the case. It is settled principle of law that only a single doubt is sufficient to discard the prosecution case and not number of doubts are required. There is plethora of authorities of superior Courts on this point.
We may refer to 1998 PCr.LJ 1568. As far as two versions are concerned, it is again settled principle of law laid down by the superior Courts that a version favourable to the accused must go in his favour. As stated above, the version taken by the defence in the evidence of DW-1 seems acceptable, therefore, this would also favour the accused.
14. As far as abscondence is I concerned, it is material when other evidence favours the prosecution case. In the event when evidence is deficient against the accused, the abscondence alone would not be taken into consideration and cannot be made the basis of conviction.
Reference may be given to 2004 PCr.LJ. Wherein it is held that merely on the basis of abscondence, neither conviction can be recorded nor maintained unless there is other sufficient material on record to connect the accused with the commission of offence. In this regard, we may also refer to 1998 SCMR 198.
15. Coming to the point of acquittal of co-accused in the earlier trial, we may point out that this argument was addressed by counsel for the accused in the trial Court but the judgment reveals that this argument is neither discussed nor any findings are available. In our opinion, it is a very material point favouring the accused and was also agitated on his behalf, therefore, it was the duty of the trial Court to have given findings which are missing and it is pity on the part of the trial Court to have missed this point. The Court. While deciding the matter before us has scribed lengthy judgment unnecessarily which is not called for. The superior Courts do not appreciate such type of judgments. If at all authority is needed, we may refer to 2006 PCr.LJ 387 wherein the following observations have been made:-- "An unnecessary lengthy judgment indicates that the author of the judgment is either incompetent or dishonest. He is incompetent because he is unable to decide as to what material is necessary to insert in the judgment and what is not required for the reason that it would and nothing meaningful to it. The author of a lengthy judgment would be dishonest when he gives a verdict that is not the logical outcome of the evidence and material on record and, to justify the verdict, he adds more and more material. As far one travels from the truth, as much material he needs to justify it."
So, we also do not appreciate the practice of learned trial Judge.
16. Coming back to the point of acquittal of the co-accused, it is pointed out that one of the co- accused namely Israr Ali Shah has been acquitted in the earlier trial by an Additional Sessions Judge vide judgment dated 30-6-2005. No appeal has been filed and the said acquittal attained finality. Now the question arises as to whether another Court on the basis of same evidence can convict another co-accused in subsequent trial. Certainly, the answer would be in negative because in both the cases, the evidence was the same and if the same set was disbelieved earlier by a Court, it cannot be believed in a subsequent trial. Had anything positive come out from the evidence, it would not be taken into consideration because the same would be termed as improvements which is not permissible under the law. We also rely on 2004 PCr.LJ 352 wherein is held that the rule of consistency demands acquittal of the accused where on the same evidence his co-accused was acquitted having the same role. The observations are reproduced below:-- "I have heard learned counsel for the parties and have gone through the record with their able assistance. Nasra appellant was tried along with eight co-accused. Except Nasra, appellant all the remaining accused were acquitted. Basra son of Malik, one of the accused was also acquitted by the trial Court. This acquitted accused was ascribed an injury on left leg of the deceased. Similarly, Nasra appellant was attributed injury on the left leg near thigh of deceased. The case of Nasra appellant was at par with the case of Basra acquitted accused. Appeal against the acquittal of Basra was dismissed by a Division Bench consisting of my learned brother Mien Muhammad Najar nuz Zaman and M. Naeemullah Khan Sherwani, JJ. By passing a detailed order. According F.I.R., Basra appellant was armed with a rifle .7mm but during the course of investigation, .8 mm licenced rifle was recovered from him while following the rule of consistency, appeal filed by Nasra appellant is accepted. Conviction and sentence recorded against him by the trial Court is set- aside. He is behind the bars and shall be released forthwith, if not required to be detained in any other case."
We are also in agreement with the above view of the Honourable Lahore High Court and hold that on the same evidence and on the same role attributed to both the accused, the present appellant was not liable to be convicted. On this point also, the trial Court has erred.
17. In short, the case is based against the accused on the evidence of solitary witness who is closely related to the deceased being his mother, she was inimical towards the accused because of previous blood feud as reported in the F.I.R, her statement is full of contradictions with the medical evidence as well as the F.S.L regarding the contents of stomach and number of weapons used in the offence. Her statement is also contradictory with the F.I.R regarding taking of food. There is evidence in the shape of DW-1 who is also closely related to the deceased being his were who has totally denied the involvement of accused by saying that the accused was done to death by unknown person and not the accused. So, on one side the case is full of contradictions, number of doubts have arisen and it is a double version case which also speaks of absence of solitary witness from the spot.
18. In view of our above discussion, we are of the view that the learned trial Court has erroneously convicted the accused-appellant which resulted in great miscarriage of justice, therefore, we are not inclined to maintain the conviction and sentence recorded by the trial Court and by accepting this appeal, we set-aside the conviction and sentence of the accused-appellant and acquit him of the charges levelled against him. He be set at liberty forthwith if not required in any other case.