JUDGMENT MUHAMMAD HASHIM KHAN KAKAR, J.---This appeal is directed against the judgment dated 13th February, 2010, passed by Sessions Judge, Dera Allah Yar, whereby appellants Shah Nawaz and Gul Nawaz were convicted and sentenced under section 302(b) of the P.P.C. To suffer life imprisonment and appellant Muhammad Nawaz was convicted and sentenced for 14 years' R.I.
And to pay Diyat amount to the legal heirs of deceased Zulfiqar Ali, with benefit of section 382-B of the Cr.P.C.
2. The relevant facts, arising out of instant appeal, are that on 12th January, 2009 at about 12-20 a.m., a case vide Crime No.10 of 2009, under section 302 read with sections 147 and 149, P.P.C. Was registered at Police Station Dera Allah Yar, District Jaffarabad on the report of complainant Habibullah son of Faqir Muhammad, alleging therein that he, along with his family members, is residing at Goth Haji Elahi Bakhsh Khosa and by profession is an agriculturist. Tonight, he, his brother and relatives, namely, Zahid Hussain son of Niamatullah, and Khadim Hussain son of Allah Dad, after taking thresher machine, went to their landed property, whereas his brother Zulfiqar Ali went to the house of their Buzgars, namely, Gahi Khan son of Muhammad Umar, Gul Nawaz, Muhammad Nawaz, Shah Nawaz, Shoukat Ali sons of Gahi Khan, so as to bring them to work on thresher machine. It was alleged that when his brother Zulfiqar Ali did not turn up after sometime, he, along with Zahid Hussain and Khadim Hussain, at about 11:00 p.m., went to the house of Gahi Khan, where they saw that accused persons, namely, Gul Nawaz and Shah Nawaz were pulling his brother by roping his neck, whereas accused Gahi Khan and Shoukat Ali were holding his legs and accused Muhammad Nawaz beating him by means of 'Danda'. It was further alleged that on seeing them,. Accused Muhammad Nawaz told them that since Zulfiqar Ali had. Illicit relations with his were, namely, Sorat, therefore he is 'Siyahkar' and has no right to live. It was further averred that, unpredictably, he died on the spot and accused persons ran away from the crime scene.
Resultantly, aforesaid F.I.R. Was registered.
3. After registration of the F.I.R. Exh.P/6, investigation of the case was entrusted to P.W.6. Abdul Hameed, S.-I., who inspected the site, prepared site inspection memo and site sketch Exh.P/6-A, secured blood-stained earth vide memo, prepared inquest report Exh.P/6-B and dispatched the dead body of deceased for postmortem examination to hospital, took into possession the bloodstained clothes of deceased vide memo, recorded the statements of P.Ws. And obtained certificate from the hospital. On 12th January, 2009, he arrested the accused persons, namely, Shah Nawaz, Muhammad Nawaz and Shoukat Ali. On 14th January, 2009, he received the death certificate of deceased. On 16th January, 2009, on the basis of disclosure made by accused Muhammad Nawaz, he recovered 'Danda' used in the commission of offence. Thereafter, he placed the papers before IP/S.H.O. Khawand. Bakhsh, who prepared incomplete challan Exh.P/6-C against the accused persons. On 6th March, 2009, the investigation of the case was transferred to P.W.7 Habibullah, S.-I., who arrested the remaining accused persons, namely, Gul Nawaz and Gahi Khan and after investigation, placed the papers before S.H.O., who prepared incomplete challan Exh.P/7.
On receiving report from FSL Exh.P/7-A, complete challan Exh.P/7-B was prepared.
4. On the stated allegations, a formal charge was framed and read over to the accused persons on 8th April, 2009, to which they did not plead guilty and claimed trial. The prosecution, in order to prove the accusation, produced seven witnesses. P.W.1 Zahid Hussain, alleged to have witnessed the occurrence and is also recovery witness of blood-stained earth and blood-stained rope as Exh.P/1-A and Exh.P/1-B respectively. P. W.2 Abdul Hameed is witness to the recovery memo. Of blood-stained clothes of deceased. P.W.3 Habibullah is complainant of the case and has exhibited his Fard-e-Bayan Exh.P/3. P.W.4 Muhammad Afzal, constable, is recovery witness of `Danda', which he produced as Exh.P/4. P.W.5 Dr. Muhammad Din, Medical Officer, examined the dead body of deceased and issued Medico-Legal Certificate Exh.P/5. P.W.6 Abdul Hameed, S.-I. And P.W.7 Habibullah, S.-I., are the Investigating Officers of the case. Then the prosecution closed its side.
5. Thereafter, the appellants were examined under section 342 of the Cr.P.C. They denied the prosecution allegation and claimed to be innocent. They did not opt to record their statements on oath as envisaged under section 340(2) of the Cr.P.C., nor produced any evidence in defence. The trial Court after close of the parties' evidence, vide impugned judgment, convicted and sentenced the appellants, as mentioned hereinabove, hence, this appeal.
6. Mr. Liaquat Ali, learned counsel for the pauper appellants, contended that the prosecution has failed to establish the charge against the appellants. He has challenged the ocular testimony furnished by P.W.1 Zahid Hussain and P.W.3, Habibullah, on the ground that the witnesses are closely related to each other and being a chance witness, their presence at odd hours of the night at the place of occurrence is highly doubtful. He further contended that on the same set of evidence; co- accused Shaukat Ali and Gahi Khan were acquitted of the charge, therefore, the appellants deserve same treatment. He argued that the incident went un-witnessed and that after getting information of the incident, the case was prepared with the connivance of Police. He also argued that the trial Court has acted illegally and with material irregularity while convicting the appellants and the order of conviction needs to be set aside.
7. On the other hand, Mr. Abdullah Kurd, learned counsel appearing for the State, urged that there are eye-witnesses of the occurrence, who have implicated the appellants in the commission of the offence. He contended that the ocular account is also corroborated by the other pieces of evidence and the trial Court has rightly convicted the appellants.
8. We have carefully considered the contentions put forth by the parties' learned counsel and have also gone through the impugned judgment and evidence, gist whereof has already been reproduced hereinabove.
9. As far as unnatural death of deceased Zulfiqar Ali is concerned, the defence has not disputed the same. It has been proved through the statement of P.W.5 Dr. Muhammad Din, Medical Officer, that deceased Zulfiqar Ali met with unnatural death on account of injuries mentioned in postmortem examination report Exh. P/5.
10. The connection of appellants with the crime in question is sought to be established by the evidence of P.W.1 Zahid Hussain and P.W.3 Habibullah. A careful and minute reappraisal of the evidence produced by the prosecution would reveal that not a single bit of tangible evidence could be found in support of the charge against the appellants, connecting them with the commission of offence. P.W.1 Zahid Hussain is cousin, while P.W.3 Habibullah is real brother of deceased Zulfiqar Ali and are related, chance, interested and inimical witnesses. We are conscious of the fact that relationship of the eye-witnesses inter se with the deceased is not sufficient to discard their evidence, but it should be cogent, natural, confidence-inspiring and corroborated by independent pieces of evidence. The ocular account furnished by said witnesses is neither confidence-inspiring, nor straightforward. Even otherwise, we find that the conduct of P.Ws. Habibullah, Zahid Hussain and Khadim Hussain (not examined) was not normal, as they had not tried to save the life of the deceased and had also not tried to catch the culprits in spite of the fact that the complainant party and appellants were equal- in number and according to their version, the appellants were unarmed. Although, hard and fast rules about human conduct and behaviour are not available, yet in the light of accepted standards of human behaviour, it can be safely said that in the normal course of events the said witnesses being nears and dears of deceased Zulfiqar Ali should have tried to save his life. The conduct, allegedly, exhibited by the said witnesses is offensive to normal human behaviour. We have no hesitation to hold that the occurrence, being taken place at odd hours of the night, had gone unwitnessed and no independent corroboration is available in support of the ocular account.
11. The motive is stated to be illicit relationship of deceased Zulfiqar Ali with the were of accused Muhammad Nawaz, namely, Mst. Sorat, but the record is silent regarding Mst. Sorat, as to whether she had also been killed on account of honour killing or otherwise. The prosecution has lc badly failed to prove the alleged motive. I Prosecution, no doubt, is not required to disclose or set up a motive, but once it chooses to do so, then it becomes its obligation to prove the same by cogent evidence and failure in doing so would not only damage, the credibility of the prosecution case beyond repair, but it would also be fatal for it. In this regard we are fortified our view to a judgment= reported in 1998 PCr.LJ 990.
12. The trial Court, while convicting the appellants, has also placed reliance on the recovery of crime weapon, allegedly, made on the disclosure and pointation of appellant Muhammad Nawaz from bushes. There, is no evidence on record to show that the crime weapon, allegedly, recovered on the pointation of appellant Muhammad Nawaz, was used during the occurrence, as the same was not sent to Forensic Science Laboratory (FSL), as such, this piece of evidence was of no significance and the trial Court has wrongly made reliance upon the same.
13. Learned counsel for the appellants also drew our attention to the fact that the prosecution evidence has been disbelieved qua the acquitted accused reisons Shaukat Ali and Gahi Khan and the same evidence, without material corroboration, could not have been considered against the appellants. The contention has force, for the reasons that the same evidence, which was disbelieved qua acquitted accused persons Shaukat Ali and Gahi Khan, has been believed against the present appellants despite the fact that the case of the appellants is at par to that of co- accused. As observed in the preceding para that the crime weapon was not proved to have been used in the commission of the alleged offence, thus, their case was, admittedly, at par to that of acquitted accused persons, therefore, to our mind, it can be concluded that it was the same evidence, on the basis whereof the appellants were convicted and co-accused Shaukat Ali and Gahi Khan were acquitted of the charge. The trial Court has disbelieved the ocular account qua acquitted accused persons and without any justification and corroboration believed the same qua appellants.
14. After considering the material available on record, we are of the considered view that the prosecution has failed to establish the presence of both the witnesses at the time and place of incident beyond any reasonable doubt, therefore, it is very unsafe to rely upon such witnesses on capital charge. After excluding the evidence of ocular testimony, we are left with the corroborative pieces of evidence of F alleged recovery of crime weapon "danda" on the pointation of appellant and medical evidence furnished by P.W.5 Dr. Muhammad Dina These are corroborative pieces of evidence, which by itself are insufficient to convict the appellants in absence of substantive piece of evidence. Reference is invited to the case of Noor Muhammad SCMR 97.. State reported in 2010 IF In the light of what has been discussed above, the convictions and sentences awarded to the appellants Shah Nawaz, Muhammad Nawaz and Gul Nawaz, including the impugned judgment are set aside and they are acquitted of the charge. They are in custody and be released forthwith, if not required in any other custody case...