MAZHAR ALAM KHAN MIANKHEL, J.---Through this single judgment, we intend to decide Criminal Appeal No. 200 of 2009 and Criminal Revision No. 67 of 2009 arising out of the same judgment.
2. The appellant being aggrieved of a judgment dated 2-5-2009 of learned Additional Sessions Judge-IX, Peshawar whereby he was convicted and sentenced under section 302(b), P.P.C. For life imprisonment and a fine of Rs.100,000 as compensation to the L.Rs. Of the deceased under section 544-A, Cr.P.C. In default whereof to further undergo six months' S.I. Benefit of section 382-B, Cr.P.C.
Was also extended to the appellant in a case F.I.R. No. 606 dated 16-9-2003 Police Station Chamkani registered under section 302/34, P.P.C. For committing the murder of Sajjad alias Malang, the son of the complainant.
The complainant in the case Mst. Shaukata the mother of the deceased, has filed connected Cr.
Revision for enhancement of the sentence awarded to the appellant.
3. The complainant Mst. Shaukata on 16-9-2003 at 19.15 hours reported the matter to the local police at the spot that she while in her house at village Kalu Khel was informed by the appellant that she was being called by her brother Muhammad Shafique at his house situated in Nasirpur.
She then left for the house of her brother along with her sons Sajjad alias Malang (the deceased), Amjad arid Muhammad Imran. On reaching there, Sajjad alias Malang stayed outside while she along with Amjad and Imran entered the house wherein her brother Muhammad Shafique along with other women of the family were present. The appellant then took her inside a room and demanded Rs.50,000 as "Qarze-Hasana" from her for his marriage. She expressed her inability to pay the said amount being a poor lady. Aurangzeb, (the acquitted co-accused) the brother of appellant at that moment entered the room and threatened that if she failed to pay the said amount, her son Sajjad alias Malang standing outside their house would be killed. On this both, the appellant and the acquitted co-accused Aurangzeb, ran towards the main gate of their house and she along with her two sons followed them. Aurangzeb, acquitted co-accused caught hold of Sajjad alias Malang whereas Muhammad Fayyaz appellant fired at him, who succumbed to the injuries at the spot. The occurrence took place at 18:30 hours and the report was made to the police at 19.15 hours at the spot on arrival of the police.
4. After investigation of the case, the accused were sent to the Court of Additional Sessions Judge, Peshawar for trial. The prosecution to prove its case produced eleven P. Ws. The learned Additional Sessions Judge-IX, Peshawar on conclusion of the trial convicted and sentenced the appellant as stated above whereas the other co-accused Aurangzeb was acquitted of the charges levelled against him.
5. The learned counsel for the appellant while claiming the innocence of the appellant submitted that the prosecution has bitterly failed to prove the charge against the appellant; the very presence of the alleged eye-witnesses becomes doubtful in the circumstances of the case; their version cannot be believed as both of the eye-witnesses were highly interested; the medical evidence is in conflict with the ocular account given by the eye-witnesses; the alleged recoveries of empties itself are not sufficient to prove the charge against the appellant; the motive alleged by the prosecution is not only a weak motive but that too was not proved by the prosecution. He further submitted that this being an unseen occurrence, the complainant failed to justify her presence at the spot. So, the conviction made by the learned trial Court is totally against the norms of justice. The learned counsel for the appellant in support of his contentions placed reliance on Rehmatullah v. Muhammad Iqbal and others (2006 SCM R 1517), Humayun v. The State and another (2005 PCr.LJ 337), Jan Alam v. The State and another (2004 PCr.LJ 68), Abdul Sattar and others v.
The State (2002 PCr.LJ 51), Abdul Subhan v. Reheem Bakhsh and another (PLD 1994 SC 178) and Nawaz Ali and another v. The State (1981 SCM R 132).
6. As against that, the learned A.A.-G. Assisted by counsel for the complainant submitted that the ocular account 'given by the witnesses remained unshattered; the motive for the offence was there and the same was proved; the medical evidence also supports the ocular account; the recoveries of empties and blood stained earth from the spot also support version given by the prosecution.
The unexplained abscondence of the appellant further strengthens the ocular account and other circumstantial evidence on the record. The charge levelled against the appellant was proved without any shadow of doubt and in this view of the matter, the appellant against whom murder of the deceased was proved, deserves maximum punishment of death and by placing reliance on Saeed and 2 others v. The State (2003 SCM R 747), Muhammad Ashraf and others v. The State (2005 PCr.LJ 1321), Mohabbat v. The State (1990 PCr.LJ 73), Muhammad Fayyaz and another v. The State (200 PCr.LJ 64), Waris Khan v. The State (2001 SCM R 387), Shamsud Doha v. The State and another (2005 PCr.LJ 310), Muhammad Taj and others v. The State (2008 PCr.LJ 390), Aurangzeb v. The State (2005 PCr.LJ 1605) and Allah Bakhsh v. Shammi and others (PLD 1980 Supreme Court 225) requested for acceptance of criminal revision.
7. We have heard the learned counsel for the parties and have gone through the record of the case with their valuable assistance.
8. The perusal of the record would reveal that the prosecution to prove its case examined eleven P.
Ws. Out of whom P.W.7 was the complainant of the case and mother of the deceased whereas P.W.8 was the eye-witness of the occurrence and also the brother of the deceased. The other eye- witness who too was the real brother of the deceased was abandoned. The report in the shape of Murasila Exh.P.W.1/1 was handed down by Fazal Moula SHO, P.W.1. The investigation in the case was made by one Kiramat Shah CIO at that time whose statement was recorded as P.W.9, who prepared the site plan Exh.PB. The I.O. Also recovered a 100 W. Bulb Exh.P.W.9/1 installed on the main gate of the house of present appellant. As per statement of the I.O., he conducted examination in the light of said bulb and a torch in his possession. The recovery of two empties of .30 bore pistol and blood stained earth from the spot was also endorsed by P.W.B. The doctor Muhammad Aslam who conducted postmortem of the deceased was recorded as P.W.10 who found the following injuries on the dead body of the deceased:--
(1) FA entry wound on the left side of the fore head, 7 x 3 cm in size, 6 cm from midline and was just above the eye brow. Blackening of the wound was present.
(2) FA exit wound on the right back of neck, 1.5 x 1 cm in size, 05 cm from posterior midline, 4 cm above the base of neck.
9. The entire evidence led by the prosecution on the very face of it creates many doubts and even the presence of eye-witnesses at the time of occurrence becomes doubtful. The occurrence as alleged by the complainant has taken place in presence of complainant, the mother, and the other two young brothers of the deceased (who too was a young person aged about 24/25 years). The points shown in the site plan makes it a story hardly to be believed. A young man of 24/25 years is being caught hold by co-accused Aurangzeb without any resistance and the other co-accused i.e. Appellant fires at him. This occurrence is being committed in presence of two brothers and mother who have not shown any resistance, no attempt on their behalf to overpower the accused or try to rescue the deceased from the clutches of accused or to chase the decamping accused was made. The story put forth by the prosecution in this manner is a very unnatural and hardly to be relied upon which is totally against the natural human conduct in the circumstances.
10. The family of the deceased and the family of accused are closely related to each other. The father of the appellant and the complainant, mother of the deceased, are brother and sister inter se. The house of their other brother Jehanzeb is situated just opposite the house of Muhammad Shafique, the father of the appellant and near to the place of occurrence. The deceased being the son of their sister was done to death just outside their houses and both of them i.e. Muhammad Shafique and Jehanzeb are not attracted to the spot as nothing material in this regard has been collected by the police. No independent and disinterested witness has come forward to give support even to the circumstantial evidence. This aspect of the case again makes the occurrence a mysterious one.
11. As per investigation conducted by the I.O. P.W.9, the complainant and two brothers of the deceased are the eye-witnesses of the occurrence who are highly interested witnesses and under the law, statement of such witnesses are required to be considered with great caution and care. As per version of the complainant that the deceased was done to death in their presence and then after the occurrence, they remained there for about 45 minutes, about an hour after the occurrence and dead body of the deceased remained there on the spot but no attempt whatsoever in the shape of making of report or to taking the deceased to the hospital or police station was made. They kept on waiting there on the spot till the arrival of the police at about 9-15 p.m. Whereas the occurrence had taken place at 18.30 hours. The report of occurrence was made at the spot at the arrival of the police and Fazle Mola SHO whose statement was recorded as P.W.1, has stated that on receipt of an information about the murder occurrence, he reached the spot but till last no source of information was disclosed and similarly being a cognizable offence the report of the matter first should have been recorded in the police station and then he should have gone to the spot. This aspect of the case reflects that neither the complainant along with witnesses was present at the spot nor the occurrence took place in their presence and similarly the report was lodged after a preliminary investigation by the police. The ocular account of the case comes from the mouth of highly interested witnesses one is the mother and the other is real brother of the deceased. Such nature of evidence requires a careful perusal and consideration. In such like situation, prosecution is also required to establish its case through other corroborative evidence.
The perusal of the entire evidence would reflect the material contradictions in their statements which make their presence at the spot doubtful.
12. The recovery of two empties of .30 bore pistol and the blood stained earth in absence of any other direct or corroborative piece of evidence alone would not be sufficient to connect the appellant with the commission of offence or to convict him in the case as it is a corroborative piece of evidence. When ocular account of the case becomes doubtful then mere recovery of empties alone or blood stained E earth can in no way be made basis for conviction.
13. The appellant along with his acquitted co-accused Aurangzeb remained absconders and proceedings under section 512, Cr.P.C. Were also initiated against both, who were arrested by the police officials of Police Station Lundkhwar District Mardan. No doubt that the span of abscondence on the record is a long one and that too was not explained but in absence of any other direct, circumstantial or corroborative piece of evidence, abscondence alone cannot be considered as sufficient for conviction of the appellant. It can only be used as a corroborative piece of evidence and cannot be a substitute of real evidence.
14. As far as motive of the case is concerned, the prosecution has alleged a motive but not only the same has not been proved from the record but said motive for the murder of deceased is a weak motive and not sufficient to accept the same as only refusal to pay an amount of Rs.50,000 as a loan, one would go for the murder of his cousin i.e. The son of their paternal aunt. Such motive on the face of it is not acceptable. Under the law, it is not necessary for the prosecution to set up a motive and absence of motive would not be fatal for the prosecution if the case of the prosecution is proved through unimpeachable and confidence inspiring evidence. But once a motive is alleged by the prosecution then it becomes the duty of the prosecution to prove the same.
15. So, what has been discussed above, we are fully convinced that the presence of the complainant as well as the eye-witnesses at the time of occurrence becomes doubtful and under the criminal dispensation of justice, a single doubt appearing in the mind of a Judge would be sufficient to discard the entire evidence on the record and the benefit of the same would go to the accused. We have no hesitation to hold that the prosecution has failed to prove charge against the appellant. Hence, this appeal is allowed, the conviction and sentence awarded to the appellant by Additional Sessions Judge-IX, Peshawar vide his judgment dated 2-5-2009 is set aside and the appellant is acquitted of the charges levelled against him. He be set free forthwith if not required in any other case. Criminal revision for enhancement of sentence is dismissed.