' ASSADULLAH KHAN CHAMKANI, J.---This criminal appeal is directed against the judgment dated 21- 7-2010 passed by learned Additional Sessions Judge/Izafi Zila Qazi, Dir Upper, whereby Siraj, the appellant, involved in case F.I.R. No. 14 dated 30-1-2009 under sections 302/324/34, P.P.C. Police Station Barawal, was convicted and sentenced as under:--
(i) under section 302(b), P.P.C. To death on two counts, with a fine of Rs. Four lac, if recovered payable to the legal heirs of deceased Rehmat Hadi and Fazal Ahad as compensation under section 544-A, Cr. P. C .
(ii) under section 324, P.P.C. To ten years' R.I. And a fine of Rs.40,000. Or in default of payment of fine to suffer six months' S. I.
' It was directed by the trial Court that if the death sentence is not confirmed by the High Court, then all the sentences of imprisonment shall run concurrently.
2. Siraj, the appellant, has filed Criminal Appeal No. 688 of 2010 and the learned trial Court has sent Murder Reference No. 27 of 2010 for confirmation of the death sentence awarded to the accused.
3. We intend to dispose of the Criminal Appeal No. 688 of 2010 and Murder Reference No. 27 of 2010, through this judgment.
4. Facts of the case succinctly are that Abdul Hanan complainant lodged a report to Moamber Khan, the then S.H.O. Police Station Barawal, in Civil Hospital Bandai, that on 20-1-2009 he was having a dispute with Asmaj and Latif over women folk for which a "Jirga" was convened in the Hujra of Shafi Ullah and when the complainant party reached near the said "Hujra", in the meanwhile at about 11.00 hours accused Lateef, Khana Gul, Siraj and Asmaj duly armed with deadly weapons started firing at them as a result of which Fazal Ahad and Rehmat Hadi were hit and died on the spot while the complainant himself escaped unhurt. Motive for the occurrence was stated to be a dispute over women folk while the occurrence was stated to be witnessed by Noor Muhammad, Rahim Muhammad, Bakhtiar besides many other people present there. The report of complainant was reduced into writing in shape of Murasilla Exh.PA, which he thumb impressed as token of its correctness. The injury sheets of both the deceased were prepared and handed over to the Doctor while the Murasilla was sent to Police Station for registration of the case, as such, the above referred case F.I.R. Was registered.
5. After registration of the case, investigation was entrusted to Gul Fazal S.-I. (P.W.7), who visited the hospital, where he obtained undertaking from the legal heirs of deceased with regard to non- conduct of Post-Mortem Examinations of the dead bodies, vide receipt Exh.P.W.7/1 and Exh.P.W.7/2.
Thereafter, he proceeded to the spot, prepared the site plan Exh.PB at the instance of complainant and eyewitnesses. During spot inspection he recovered blood-stained earth from the places of deceased Fazal Ahmad and Rehmat Hadi, took the same vide memo Exh.PC and Exh.PC/1. He also recovered three empties of 7.62 bore vide recovery memo Exh.PC/2, blood-stained garments of both the deceased vide recovery memo Exh.PC/3 to Exh.PC/5. During house search he also recovered a dagger from the residential room of absconding co-accused Asmaj and separate case under section 13 of Arms Ordinance was registered against him. He recorded the statements of P. Ws. Under section 161, Cr.P.C. After completion of the investigation, case file was handed over to S.H.O. Concerned, who submitted complete challan in the court for trial of the accused.
6. Learned trial Court after receipt of the complete challan, summoned the accused but they failed to attend the court, therefore, after completion of proceedings under section 512, Cr.P.C, they were.
Declared as proclaimed offenders. Later on, accused Siraj, the present convict-appellant, was arrested on 11-12-2009. Supplementary challan against him was submitted before the court. The trial Court complied with the legal formalities under section 265-C, Cr.P.C, framed the formal charge against the accused, who did not plead guilty and claimed trial. Prosecution in order to prove its case produced nine witnesses. Thereafter, statement of the accused, was recorded under section 342, Cr.P.C, wherein he totally denied the allegations levelled by the prosecution and professed his innocence. After close of the evidence and hearing the arguments of the parties, learned trial Court convicted and sentenced the accused-appellant as stated above.
7. Learned counsel for the appellant argued that the story put forward by the prosecution was not established by the ocular account furnished by Abdul Hanan complainant (P.W.3), Rehim Muhammad (P.W.4) and Noor Muhammad (P.W.5) as their statements are contradictory to each other, therefore, the same could not be believed. He argued that it is unwitnessed occurrence and the P.Ws. 3, 4 and 5 claimed to be the eye-witnesses of the occurrence were procured and they have given evidence in favour of the prosecution because of their close relationship with the deceased. He further argued that there are sharp contradictions amongst the ocular account, medical evidence and site plan. He argued that the charge is exaggerated one because it seems to be act of a single person. Learned counsel further argued that the three crime empties recovered from the spot were not sent to the Expert to ascertain as to whether the same were fired with one weapon or otherwise. He contended that motive was set up in the first report but the same has not been proved. He contended that, though, there is abscondance in the account of appellant but the same can be used only as a corroboratory in support of ocular account but when the testimony of ocular account is not trustworthy and confidence inspiring, then abscondance alone is not sufficient to record conviction of the appellant on a capital charge.
Lastly, he submitted that the prosecution has miserably failed to prove its case against the appellant-convict beyond any shadow of doubt and the learned trial Court has wrongly and mistakenly assessed the evidence on record and passed the impugned judgment of conviction without any cogent evidence, therefore, the same is liable to be set aside and the accused be acquitted of the charge.
8. On the other hand learned A.A.-G. And counsel for the complainant argued that the occurrence took place in broad-daylight and the accused-appellant along with the absconding co-accused were charged in a promptly lodged F.I.R., which is supported by the complainant P.W.3, eye- witnesses, eye-witnesses namely Rahim Muhammad P.W.4 Noor Muhammad P.W.5, medical evidence, recoveries of three crime empties from the spot, blood-stained earth from the spot, blood-stained garments having corresponding cut marks, FSL result, noticeable abscondance and motive. They argued that the prosecution proved its case against the accused-appellant beyond any shadow of doubt and further submitted that though there are minor discrepancies in the evidence of prosecution but the same are not fatal to the prosecution case and supported the conviction and sentence awarded to the accused-appellant. He prayed for dismissal of the appeal.
9. We have heard learned counsel of the parties and gone through the record with their valuable assistance.
10. We would first scrutinize that as to whether the eye-witnesses were present on the spot at the time of occurrence. The case of prosecution is that the complainant party was attending the "Jirga" in the Thujra" of Shafi Ullah, when reached near the "Hujra" of Shafi Ullah, in the meanwhile, the accused started firing at them with which Rehmat Hadi and Fazal Ahad were hit and died on the spot while the complainant escaped from the firing of accused, though he was in the firing range.
The complainant stated in his report that the occurrence was witnessed by Abdul Hanan, Rahim Muhammad, Noor Muhammad, Bakhtiar and many other people present there. The complainant when appeared as P.W.3 stated in his cross-examination that the occurrence took place in the bazaar, where hundreds of shops were situated. He further stated that usually vehicles are available in taxi stand, however, stated that on the day of occurrence it was Friday, therefore, there was no rush. He stated that the place of occurrence is situated in the front of shop of Muhammad Nawaz. He stated that he is unable to tell the number of shots fired by the accused. He further stated that the dead bodies of the deceased were shifted to hospital in a vehicle. He admitted that out of the Jirga members Shafi Ullah and Rozi Malik came to the spot. Similarly, Rahim Shah when appeared as P.W.4, he stated in his cross-examination that the occurrence took place in front of shop of Muhammad Nawaz, when Rehmat Hadi was purchasing "Naswar" (snuff) from his shop. He stated that out of the Jirga members only Shafi Ullah and Aman Ullah had come to the spot. He further stated that the dead bodies of the deceased were shifted to hospital on shoulders with the help of other people. Statement of Noor Muhammad was recorded as P.W.5. He in his cross- examination stated that he is unable to tell the number of shots fired by the accused. He further stated that the occurrence took place in the Barawal bazaar and the dead bodies were shifted in vehicles. From the perusal of above statements and contents of report, it is evident that neither the complainant in his first report nor in his statement before the trial Court has disclosed the type of weapons, which the accused were carrying at the time of occurrence. It is very strange on the part of the complainant that he has not specified the weapons of offence. The people of this area what to say of male even the female can identify the different calibre of weapons for the reason that this area is facing terrorism and because of prevalent terrorism in the area of Malakand Division, even their women are protecting their persons and property by using weapons at the time of need. So, in this back ground non-specification of weapon in the hands of appellant reflects doubt regarding the presence of complainant and eye-witnesses on the spot. Had they been present on the spot, definitely they could have specified the weapons of offence. Besides the above, there are contradictions in the statements of P.Ws. Because one of. The P.Ws. Stated that Rozi Malik and Shafi Ullah came to the spot whereas the other stated that Aman Ullah and Shafi Ullah had come to the spot. One P.W. Stated that they had shifted the dead bodies to the hospital in the vehicles while the other stated that the dead bodies were shifted while taking them on their shoulders. Besides the above contradictions, the P.Ws. Were even unable to disclose the maximum number of shot fired by the accused at the time of occurrence. Had the eye-witnesses been present on the spot, they could have explained each and every moment of the incident.
11. There is another material discrepancy in the statements of the two eye-witnesses Rehim Muhammad and Noor Muhammad and that of the nvestigating Officer because according to the Investigating Officer, he visited the spot on the day of occurrence, prepared the site plan Exh.PB at the pointation of eyewitnesses besides the complainant and during spot inspection he recovered and took into possession blood-stained earth from the places of deceased, three empties of 7.62 bore and blood-stained garments of the deceased vide recovery memo. Exh.PC to Exh.PC/4 in presence Rahim Muhammad and Noor Muhammad while on the other hand, Rahim Muhammad P.W.4 and Noor Muhammad P.W.5, both alleging themselves to be the eye-witnesses of the occurrence and also claimed that they were present with the Investigating Officer at the time of spot inspection, stated in their cross-examinations that the police came to the spot on the following day of the occurrence i.e., at morning time. Rahim Muhammad P. W.4 durin cross- examination stated that his statement was recorded by the police on the following day of the occurrence. The relevant portion of his cross-examination is as under:- {{URDU TEXT}} ' Similarly, P.W.5 Noor Muhammad stated in his ,cross-examination that his statement was not recorded by the police and the police came to the spot on the following day of the occurrence at morning time. The relevant portion of his cross-examining are as under:- {{URDU TEXT}} ' The statements of above two witnesses totally negated by the Investigating Officer Gul Fazal, S.-I.
When he appeared as P.W.7. He in his examination-in-chief stated that investigation of the case was entrusted to him on 30-1-2009 and he proceeded to the hospital, wherefrom he went to the spot and carried out the spot inspection in presence of complainant as well as eye-witnesses of the occurrence. He in the first line of his cross-examination stated that he reached to the hospital on the same day at.
11.25 hours. The relevant portion of his cross-examination is as under:- {{URDU TEXT}} ' The site plan and the recovery memos are of dated 30-1-2009. The I.O. Stated that he recorded the statements of the above alleged witnesses on the spot on the same day. Besides contradiction, the alleged eye-witnesses have made improvement in their statements which inspire least confidence. The above contradictions again lead to believe that the occurrence has not taken place in the manner and style as stated by the eyewitnesses. Thus, the aggregate result of the above discussion on the ocular account and the evidence furnished by the Investigating Officer would be that either the witnesses were not present on the spot or the Investigating Officer conducted the whole investigation in the absence of eyewitnesses as shown in the site plan Exh.PB.
Since there is doubt about the presence of the P.Ws. On the spot at the relevant time and we are of the view that the complainant and eye-witnesses were procured from somewhere and were later on set up as eyewitnesses.
12. As per story of prosecution the occurrence was witnessed by many people present on the spot and this fact has also been admitted by the P.Ws. That the occurrence has taken place in busy place but the prosecution has not been able to produce a single witness either from the Jirga members or from the people present there even the statement of Nawaz shopkeeper was not recorded in support of its case. Had the occurrence been taken place in the manner and mode as narrated by the prosecution, the Jirga members could have come forward in support of the prosecution case because in this part of the area where typical "Pukhtoon" clannish instinct distinctively ruled and controlled peculiar traditional rules when such crimes are committed at the time of Jirga proceedings then elder feel deeply insulted and, therefore, join hands with the aggrieved party in prosecuting the accused besides awarding penalty through private Jirgas, but here none of them has come forward to support the prosecution version to any minimum extent which is also a noticeable circumstance which also creates serious doubt regarding prosecution story.
13. The prosecution alleged that the medical as well as the recovery of three crime empties of 7.62 bore from the spot fully corroborate the story of prosecution. As far as medical evidence is concerned, admittedly, only external examination on the dead bodies of the deceased was carried out while at the behest of legal heirs of the deceased the internal examination of the dead bodies' was not conducted. However, on the injury sheets and inquest reports of both the deceased, the concerned Medical Officer has given some details regarding the wounds found by him on the persons of both the deceased but the same is incomplete because the concerned medical officer has neither mentioned the arrival of dead bodies to the hospital nor the probable time between the injury and death nor between death and examination of the dead bodies and only written beneath his signature as 11.30 whereas the time of report is 11-25 a.m., however, the prosecution produced the concerned Medical Officer namely Khalil Ullah as P.W.6, who in his examination-in- chief stated that on 30-1-2009 he examined the dead body of deceased Fazal Ahad and found on the person of deceased two, entry wounds on left side of interior abdominal wall above umbilicus of less than 1 c.m size, one entry wound of 1 c.m size in left iliac fossa, two exit wounds on right iliac.
Fossa with protruding intestinal loops 'through wound of 2.5 c.m size and 3 c.m shuttered wound on left hip. He also examined the dead body of Rehmat Hadi on the same date and found that his skull was shattered with fire arm and brain matter was lying outside skull and further found right side of frontal, parietal and upper part of maxillary bone shattered. For the above injuries four persons have been charged for indiscriminate firing at them. The number of injuries on both the deceased do not commensurate with the number of accused. So, the prosecution story is contra to the medical evidence qua the number of injuries found on the body of both the deceased. So far as the three crime empties of 7.62 bore is concerned, admittedly, four persons are charged for firing at the deceased but the I.O. Has recovered three empties from the crime spot. The basic duty of the prosecution is to prove the participation of each and every accused in the commission of offence but it is astonishing to note that the I.O. Has not sent these empties to FSL to clarify the position as to whether it was the job of a single person or otherwise, most particularly, in the absence of postmortem reports of the deceased, as four persons have been charged for firing at the deceased, so, it was incumbent upon the ' Investigating Officer to have sent the recovered empties to laboratory to ascertain as to whether the empties were fired from one or different weapons.
Similarly, the LO. During spot inspection has neither recovered any spent 'bullet or found any bullet marks on the nearby shops as the occurrence had allegedly been taken place in front of the shop, therefore, in this background it is not safe to rely on the three crime empties especially when there is contradictions amongst the prosecution witnesses with regard to time of, inspection of spot and recovery of 7.62 bore empties because as per statements of the marginal witnesses to the recovery memo Exh.PC/2, the same were recovered on the following day of the occurrence whereas the memo is of dated 30-1-2009 and I.O. Confirmed the date of inspection of spot as 30-1- 2009. So, non-sending of the empties to the FSL especially the ocular account when juxtaposed with the site plan is not in conformity with each other and negates the story of prosecution and that from the evidence available on the file it seems to be the act of a single person.
14. Though, the complainant alleged motive in his report but the prosecution has failed to produce a single elder or anyone else to establish the motive which has been set up by the prosecution thus the same is shrouded in a mystery.
15. The only circumstance in the account of the appellant is his abscondance but on this point the law is by now well-settled that the same alone is not sufficient to record conviction on a capital charge and it can be used only as a corroboratory and confirmatory in support of ocular account but when the ocular account is disbelieved then it is of a very little value for court for consideration.
Reliance in this regard is placed on the case of Rasool Muhammad v. Asal Muhammad and 3 others reported in 1995 SCM R 1373, wherein it has been held that:-- "Abscondence per se is not proof of the guilt of an accused person. Disappearance of a person named as a murderer/culprit after the occurrence is but natural, whether named rightly or wrongly"
16. On thoroughly scanning the entire record we have observed all the attending circumstances and it is obvious that the occurrence is unseen as the ocular testimony of the interested witnesses namely Abdul Hanan complainant, Rahim Muhammad and Noor Muhammad, the alleged eye- witnesses, was not corroborated by the independent evidence and the medical evidence as well as recovery from the spot contradict the story of prosecution. As a matter of fact the prosecution is always bound to prove its case beyond any shadow of doubt. In criminal jurisprudence, the general rule of appreciation of evidence is that want of interest or absence of enmity does not stamp the statement of a particular witness with presumption of truth and that much depends on the intrinsic value of the statement of a witness. The real test is as to whether the statement of a witness is in consonance with the probabilities, whether it fits in with the other evidence and whether it inspire confidence in the mind. Reliance in this regard is placed upon the cases of Muhammad lqbal v. The State (1984 SCM R 930), Muhammad Arshad alias Achhi v. The State (1995 SCM R 1639) and Haroon alias Harooni v. The State and another 1995 SCM R 1627. It is also fundamental principle of jurisprudence, that is, to disbelieve a witness, it is not necessary that there should be numerous infirmities. If there is one which impeaches the credibility of the witness, that may make the entire statement doubtful. It has been now settled that conviction must be based on unimpeachable evidence and certainty of guilt and any doubt arising in the prosecution case must be resolved in favour of the accused. Reliance in this regard is placed on case Muhammad Khan and another v.
The State, 1999 SCM R 1220.
' In view of the above discussion and scrutiny of evidence from all angles, we are of the view that the prosecution has failed to prove the guilt of the appellant through unimpeachable ocular testimony. Capital punishment cannot be maintained on such like evidence. We are mindful of the fact that two persons were killed, but at the same time also mindful of the basic principle of Sharia/Law that conviction must be based on evidence beyond any shadow of doubt because the damage resulting from erroneous sentence is irreversible and the principle that it is better to acquit guilty person than to punish an innocent 'one, but as the prosecution has failed to prove the guilt of appellant beyond any shadow of doubt, therefore, his conviction cannot be maintained.
Resultantly, while extending the benefit of doubt, we accept the appeal filed by the appellant- convict by setting aside his conviction and sentence acquit him of the charges levelled against him. He, be set at liberty forthwith, if not required in any other case.
' The Murder Reference No.27 of 2010 is thus answered in the negative.
' These are the detailed reasons for our short order of even date. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.