MALIK MANZOOR HUSSAIN, J.---Criminal Appeal No,409 of 2011 has been directed against the judgment dated 13-6-2011 passed by the learned Additional Sessions Judge, Shabqadar whereby the appellant Ayub was convicted under section 302(b), P.P.C. And sentenced to life imprisonment with a fine of Rs,2,00,000 (Rupees Two Lac) as compensation to the legal heirs of the deceased as per their Shari shares in terms of section 544-A, Cr.P.C. Or in default to undergo further six months'
SI. Benefit of section 382-B, Cr.P.C. Was also extended to him. Mst. Tahira Naz widow of the deceased has also filed Criminal Revision No,94-P of 2011 for enhancement of the sentence awarded to Ayub appellant. Since the appeal and revision are the out come of one and the same judgment dated 13-6-2013, therefore, we intend to dispose of both the matters through this single judgment.
2. Facts as narrated in F.I.R., in brief, are that on 9-11-2009 at 08.10 hours complainant Munsif Khan brought the dead body of his brother Habib Ullah at Police Station, SI Abdur Rashid Shaheed where he made report to the effect that on the same day at 0700 hours he along with his brothers Habib Ullah (deceased), Ayub Khan (Appellant) and other inmates were present in their house, meanwhile his brother Ayub took out his Pistol and fired at the deceased Habib Ullah as a result of which he was hit and died on the spot. Motive behind the occurrence was that some altercation took place between the, accused and the deceased in the preceding evening. Besides the complainant the occurrence is stated to have been witnessed by the other inmates of the house and thus the convict/appellant has been charged Ayub for the murder of his other brother Habib Ullah deceased, on the basis of which F.I.R. Exh.P.W.11/1 was registered against the appellant under section 302, P.P.C.
3. Shafiullah Khan. SHO (P.W.11) recorded the report of the complainant in the shape of F.I.R.
Exh.P.W.11/1. He prepared the injury sheet Exh.P.W.l1/2 and inquest report Exh.P.W.11/3 of Sohail deceased and sent the dead body for his post mortem examination under the escort of Hashim Khan FC. After the registration of the case the investigation was entrusted to Nazeer-ul-Islam SI (P.W.7) who proceeded to the place of occurrence. He inspected the spot and prepared site plan Exh.P..W.7/1 at the instance of the complainant, Sikandar Shah and Muhammad Ali. He took into possession blood stained earth from the place of the deceased vide recovery memo. Exh.P.W.2/1.
He also took into possession two empties of .30 bore from the room of Mir Zaman vide memo.
Exh.PW.2/2. After the post mortem examination of the deceased, he also took into possession the blood stained garments of the deceased through memo. Exh.P.W.6/1. He sent the empties to the Arms Expert vide application Exh.P.W.7/2 and also sent the garments of the deceased to the FSL vide application Exh.P.W.7/3 whose report is Exh.PZ. Since the accused was avoiding his arrest, therefore, he initiated proceedings under sections 204 and 87, Cr.P.C. Against him. On the completion of investigation he handed over the file to the SHO for submission of challan.
4. After completion of investigation, challan was submitted before the Court of the learned Additional Sessions Judge, Shabqadar. As the appellant was initially absconding, therefore, proceedings against him under section 512, Cr.P.C. Were initiated and he has been declared proclaimed offender. However, after the arrest of appellant on 7-11-2010 supplementary challan was submitted against him for his trial.
5. In order to prove its case prosecution examined as many as eleven witnesses against the appellant namely Dr. Zakria Medical Officer (P.W.1) Sikandar Shah (P.W.2), Munsif Khan complainant (P.W.3), Mst. Sahira Naz (P.W.4), Haseeb Ullah (P.W.5), Taj Muhammad (P.W.6), Nazeer-ul-Islam SI (P.W.7), Masood DFC (P.W.8), Noorullah Khan SI (P.W.9), Inayatullah DFC (P.W.10) and Shafiullah Khan SHO (P.W.11). Statements Of the above witnesses are available in the original record, hence in our view needs no reproduction again in this judgment. After the close of the prosecution evidence, the appellant was examined under section 342, Cr.P.C. Who denied the allegations of the prosecution and pleaded innocence. He also produced his father namely Muneeb Khan in his defence as D.W.1. However, he did not wish to be examined on oath under section 340(2), Cr.P.C.
After hearing the learned counsel for the parties and appraising the evidence on record, the learned trial Judge vide his judgment dated 13-6-2014 convicted and sentenced the appellant as mentioned above.
6. We have heard the learned counsel for the parties and have also gone through the record of the case with their valuable assistance.
7. It is a known and settled principle of law that prosecution primarily is duty bound to establish guilt against the accused without any shadow of reasonable doubt by producing trustworthy, convincing and reliable evidence having intrinsic worth to enable the Court to draw conclusion that the prosecution has succeeded in establishing accusation against the accused and if it comes to the conclusion that the charges so imputed against the accused have not been proved beyond reasonable doubt, then the accused becomes entitled for his acquittal. The requirement of criminal law is that the prosecution is duty bound to prove its case beyond any reasonable doubt and if any single and slightest doubt is created benefit of it must go to the accused and that is sufficient to discredit the prosecution story. Person charged with criminal offence is to be saddled with the liability only if prosecution has established its case against him beyond all reasonable doubts otherwise not.
8. In the instant case the prosecution to prove its case against the appellant examined Munsif Khan complainant brother of the deceased (P.W.3) and Haseeb Ullah son of the deceased (P.W.5) as eye-witnesses of the occurrence.
9. Here in the case in hand perusal of the F.I.R. Exh.P.W.11/1 reveals that at the first instance Munsif Khan complainant (P.W.3) has stated that at 07.00 he along with his brothers Habib Ullah (deceased) and Ayub (appellant) along with his other inmates of the house were present in the house when in the meanwhile his brother Ayub took out his Pistol and fired at Habib Ullah as a result of which he was hit and died on the spot. Motive for the occurrence is stated to have an altercation taken place between the deceased and the appellant in the preceding evening. While appearing in the witness box as P.W.3, the complainant deposed that on the day of occurrence he was asleep inside his house, meanwhile he heard noise of fireshot on which he woke up and came to the court-yard where he found his brother Habib Ullah in injured condition. He along with one Sikandar Shah immediately arranged for shifting the injured to the hospital but on his way he succumbed to his injuries, thus they went to the Police Station where he reported the matter to the local police which was written and signed by him. The deceased was shifted to mortuary for post mortem examination and the local police had accompanied him to his house where they recovered some blood stained earth and an empty of .30 bore. Shen on the request of the learned Public Prosecutor this witness as declared as hostile witness and the prosecution was allowed to cross-examine him. During the cross-examination by the learned Special Public Prosecutor, this witness stated that he had come to the Police Station along with one Sikandar Shah and Zewar Shah his brother along with the dead body of the deceased. He has signed a paper which was produced to him by the local police in the Police Station. He admitted it correct that the site plan was prepared at his instance and at the instance of Sikandar Shah and Muhammad Ali. In the cross-examination by the defence the complainant stated that on hearing the report of fire shot, came out to the court-yards and saw his brother Habib Ullah lying there. Pistol was also in his left hand which he took along with one Mobile phone and some money. He kept the Pistol in a box inside his house. Sikandar Shah P.W. Was the first person who attracted to the spot. He and P.W.
Sikandar Shah took the dead body of his deceased brother for lodging the report. On reaching the Police Station the police directed them to take the dead body to the mortuary. They took the dead body to the mortuary of Shabqadar Hospital and after post mortem examination they took the dead body to the village. The deceased was sentimental and jittery personality and round about ten years prior to the occurrence the deceased had made an attempt of suicide in the house of Amirzada his brother-in-law. He further deposed that during the days of occurrence the accused (appellant) used to work with a Contractor at Islamabad and since their relations with the accused were not cordial, therefore, he was not informed about the occurrence. He came to know about the occurrence through a friend.
10. The other alleged eye-witness of the occurrence is Haseeb Ullah son of the deceased who while appearing as P.W.5 had deposed that on the day of occurrence he was present with his father.
Appellant started firing at his deceased father with a Pistol due to which his father was hit and died on the spot. She appellant also snatched the money from the pocket of his deceased father and also slapped him on his face and then decamped from the spot. In his cross-examination stated that he and his father reached to the village at about 0100 p.m. His statement under section 161, Cr.P.C. Was recorded by the I.O.- one day after the occurrence. He had deposed that beside himself the occurrence was witnessed by P.Ws Munsif, Muzamil and Meer Zaman. Before the firing of the appellant there was some altercations were started between them and at the time of firing both were standing face to face in front of each other. The accused had made five fire shots on the deceased as a result of which he was hit and died on the spot.
11. The other important witness of the occurrence is Sikandar Shah P.W.2 who is the marginal witness to the recovery memo. Exh.P.W.2/1 vide which the I.O. Took into possession the blood stained earth from the place of the deceased and also to the recovery memo. Exh.P.W.2/2 vide which the I.O. Recovered and took into possession 2 empties of .30 bore from the room of Meer Zaman. In his cross-examination this witness had deposed that his house and the house of the deceased are situated with each other and on the day of occurrence at about 7-00 a.m. He noticed fire shots and also hue and cry from the direction of the house of the deceased. He immediately entered the house of the deceased where he saw his dead body lying in the court- yard and the crime Pistol was also in his left hand which was taken from him by the complainant Munsif. P.W. Muzamil and Meer Zaman the inmates of the house were also present there. The complainant then placed that Pistol in a Box inside his room. He further deposed that they took the dead body to the Police Station for report and the police told the complainant that he should take the dead body of the deceased to the hospital for post mortem examination and he will come to the spot for recording the statement of the complainant. They then brought the dead body to the village and there after a Police Officer came to the spot who first recovered an empty and some blood from the spot, prepared the site plan recorded the statements of the P.Ws. And thereafter he recorded the report of the complainant. He further deposed that P.Ws. Mst. Tahira and her son P.W.
Haseebullah and Muneef Khan father of the deceased were not present on the spot. They reached to the spot round about 0200 p.m. When they reached their house from Rawalpindi, at that time the I.O. Had already left the spot. In the last he stated that he was attracted to the spot for the first time the complainant told him that the deceased has committed suicide.
12. The prosecution case mainly hinges on the testimony of a hostile witness namely Munsif complainant (P.W.3) and Haseeb Ullah a child witness (P.W.5). It is true that the evidence of a hostile witness as observed by the superior Courts, cannot be altogether left out of consideration but it is equally true that the testimony of a hostile witness has to be considered with caution and care for the simple reason that the witness has spoken in different tones. When a witness speaks in different voices, it is for the Court to decide in what voice he speaks the truth. In such like cases, the determining test is corroboration from independent source and conformity with the remaining evidence. In the instant case we find that the statement of the complainant Munsif (P.W.3) in the absence of independent corroboration should not have been made basis of conviction of the appellant. In such like cases intrinsic value of the testimony of the witness has to be adjudged. So far as the statement of child witness namely Haseeb Ullah is concerned, evidence of child witness is a delicate matter and normally it is not safe to rely upon it unless corroborated as rule of prudence. Great caution is to be taken that in the evidence of child element of coaching is not involved. Evidence of child came up for examination in case "Amir Khan and others v. The State"
(PLD 1985 Lahore 18) wherein it was observed that, "children are a most untrustworthy class of witnesses, for, when of tender age, repeat glibly as of their own knowledge what they have heard from others and are greatly influenced by fear of punishment, by hope of reward and the desire of notoriety". In any case the rule of prudence requires that the testimony of child witness should not be relied upon unless it is corroborated by some cogent evidence on the record. In the instant case no corroborative piece of evidence has been produced by the prosecution to support the statements of both the aforesaid eye-witnesses.
13. Haseeb Ullah (P.W.5) has stated in the cross-examination that besides him, the occurrence was also witnessed by Munsif, Muzamil and Meer Zaman as well. She presence of the complainant Munsif, Muzamil and Meer Zaman was also admitted by Sikandar Shah P.W.2. There is no plausible explanation on the record that why no other inmates of the house particularly Muzamil and Meer Zaman were examined by the prosecution in confirmation of the statement of Munsif complainant (P.W.3) and Haseeb Ullah (P.W.5). No doubt the prosecution is certainly not required to produce a number of witnesses as the quality and not the' quantity of the evidence is the rule but non- production of most natural and material witnesses of the occurrence, would strongly lead to an inference of prosecutorial misconduct which would not only be considered a source of undue advantage but also an act of suppression of material facts causing prejudice to the accused. The act of withholding of most natural and a material witness of the occurrence would create an impression that the witness if would have been brought into witness box, he might not have supported the prosecution and in such eventuality the prosecution must not be in a position to avoid the consequence. The non-production of any other inmate of the house by the prosecution and subsequent change of initial version of the occurrence by Munsif complainant not only, would seriously reflect upon the credibility of his testimony but also create a reasonable doubt regarding the correctness of the subsequent version of homicidal death of the deceased set up by the prosecution. Reliance in this regard is also placed on a case "Lal Khan v. The State"(2006 SCMR 1846). This is correct that the normal circumstances, it does not appeal to mind that one brother would charge his real brother for the murder of his another real brother but at the same time it is also not acceptable that due to petty difference (altercation), a brother would commit the murder of another real brother.
14. So far as statement of Sikandar Shah P.W.2 is concerned, he is a natural witness not related to the complainant or deceased. As per his version when he attracted to the spot he noticed deceased lying dead and having Pistol in his left hand. He further deposed that the first information he collected immediately after the occurrence was that the deceased has committed suicide. Shis witness was not cross-examined on this material point. It is by now well settled that the material evidence which came in examination-in-chief if not cross-examined shall be accepted as correct.
Thus the evidence of this natural witness went unchallenged. Even otherwise, the statement of this witness fully corroborates the medical evidence. As per inquest report, there were no charring or blackening marks present at the seat of injury, though as per P.W.2 and P.W.5 the firing was made from a short distance. As per medical jurisprudence, in case of suicide, as in majority cases, the fire is shot from close to body with single injury, therefore, the possibility of blackening of smoking vanished, as the same passes in the body with the bullet. Thus the statement of this witness appears to be natural and plausible. Strongly enough this witness was neither cross-examined on the point of suicide nor declared hostile by the prosecution. Further when the P.W.2 reached the spot the dead body of the deceased was lying dead in the courtyard and pistol was also in his left hand and per medical report the entry wound was at the left side of body near left ear.
15. After deep reappraisal of the evidence, we are convinced that the prosecution has failed to prove its case against the appellant beyond any shadow of doubt. The entire evidence of the prosecution is unreliable, unnatural and remains shrouded in mystery. The timings of report, arrival of Investigating Officer and the complainant on the spot, recovery of crime-empty and drafting of Murasila are highly doubtful and cannot be taken into consideration.
16. In the final analysis of evidence, we are of consider view that in this case prosecution has failed to prove the case against the appellant beyond doubt. The occurrence took place at 8-00 a.m., while as per record the alleged eye-witness Haseeb Ullah (P.W.5) reached the spot at 2-00 p.m.
Similarly other alleged eye-witness complainant Munsif Khan (P.W.3) was declared hostile and not supported the case of the prosecution. The only witness left was Sikandar Shah (P.W.2), who declared the incident as that of suicide. No doubt the occurrence had taken place in which deceased lost his life but not in the manner asserted by the prosecution. There is no corroborative evidence to supplement ocular evidence. Prosecution cannot seek support from defective and failing intrinsic value, hence not fit for reliance to corroborate ocular version, which is itself defective. It is settled principal of law that one piece of tainted evidence cannot corroborate another tainted piece of evidence. We, therefore, hold that it is a fit case in which benefit of doubt can be given to the appellant. It is the right of the accused that whenever any slightest doubt created in the judicial mind of Court, that should be extended to the accused as a matter of right and not as grace. As noticed, the prosecution case is full of doubts.
17. For what has been discussed above, we while extending the benefit of doubt to the appellant Ayub, accept this- appeal, set aside his conviction and sentence awarded to him through impugned judgment dated 13-6-2011 by the learned Additional Sessions Judge, Shabqadar and acquit him from the charges levelled against him. He be set at liberty forthwith if not required to be detained in any other case. Consequently, the connected criminal revision No,94-P/2011, filed by Mst. Sahira Naz for enhancement of the sentence of the appellant is dismissed.