YAR MUHAMMAD, J.--- Sulaiman son of Naimat Khan and Shamsul Haq son of Samon resident of Sari Thore, District Diamer stood their trial in the Court of Session under section 302/34, P.P.C. And section 13 of Arms Ordinance for causing the murder of Najeebullah by firing at him in furtherance of their common intention on 9-10-2009 at about 0810 hours near a Masjid situated at village Koroo, Thore. After completion of the trial and examination of the accused under section 342, Cr.P.C, the complainant party effected compromise with accused Shamsul Haq and he was accordingly acquitted of the charges whereas after hearing arguments the appellant was convicted under section 302(b), P.P.C. And sentenced to death as Tazir and a fine of Rs. 400,000, with direction to pay the amount to the legal heirs of the deceased as prescribed under section 544-A, Cr.P.C., in default thereof to further undergo 6 months R.I. Vide judgment dated 13-9-2009 of the learned Additional Sessions Judge, Diamer.
2. Being aggrieved and dissatisfied with the Judgment, the appellant/convict came up on appeal against the order of his conviction and sentence and through this single judgment, we will dispose of Criminal Appeal No. 35/2012 and Murder Reference No. 4/2012 sent by the trial Judge for confirmation of the death sentence.
3. The facts according to the prosecution as divulged in the FIR by Mustaqeem (P.W.1) are that on the given date and time when the complainant along with P.W. Fazal Karim son of Abdul Wahab carrying corn load from Shatton Nullah reached near the Masjid they witnessed Najeebullah was present at down side of the Masjid grazing his cattle. In the meantime, they also saw the appellant and accused Shamsul Haq equipped with arms coming from village Sari and went straightly towards Najeebullah and by reaching there accused Shamsul Haq caught hold Najeebullah and told to appellant to open fire at him. Consequently, the appellant opened fire at Najeebullah and due to landing fire Najeebullah fell to the ground whereas a shot fired by the appellant also hit to Shamsul Haq. Najeebllah succumbed to the injuries on the spot. The motive as advanced in the FIR was that a daughter of the appellant was given in Nikah of deceased Najeebullah but later on the appellant was not ready for Rukhsati which led to create tension between the parties.
4. After completion of the trial, the I.O. Submitted challan of the case to Court of Sessions but same was entrusted to Additional Sessions Judge, who formally charge-sheeted the accused whereby they did not plead guilty rather professing innocence, claimed trial. In order to prove its case, the prosecution examined as many as 8 witnesses. The accused were examined on 25-5-2012 under section 342, Cr.P.C. However, they did not opt to be examined under section 340(2), Cr.P.C. Or to produce any DW. Anyhow, they presented some documents to the Court in' support of their version.
5. In this case two different versions regarding the commission of the murder of deceased Najeebullah in which manner it was taken place had come on the record. According to the prosecution the murder was committed in the manner as emanating from the FIR. Whereas the version taken by the defence was that on the day of occurrence accused Shamsul Haq was going to Shatton Nullah from his village Sai, Thore along with some ladies of the appellant and when they reached at village Koroo, the deceased along with his brother Fidaullah attacked at them with intention to abduct Mst. Azima a daughter of the appellant upon whom deceased Najeebullah was claiming to be his wife: Shamsul Haq and his companions tried to rescue the daughter of the appellant from being abducted, resultantly, the complainant party opened fires mistakenly at Najeebullah who died on the spot. Which version was plausible and correct, it will be judged and analyzed keeping in view the evidence on record and the circumstances attending in the case.
6. The prosecution has mainly relied upon the verbal evidence particularly the testimony furnished by Mustaqeem (P.W.1) who has appeared in the witness box as eye-witness of the occurrence besides relying upon the documents preferred by the defence. It will be appropriate and in the interest of thing to reproduce the brief account of some P. Ws.
7. Mustaqeem son of Shalizar on whose instance FIR No. 25/2009 was registered says that on the day of occurrence he and P.W. Fazal Karim while taking corn load were coming from Shatton Nullah to their village Sari and when reached near a Masjid situated at village Koroo, they saw accused Shamsul Haq and Sulaiman duly armed coming from Sari side while deceased Najeebullah was present at Nullah Koroo grazing his cattle. Accused Shamsul Haq caught hold Najeebullah and told to Sulaiman for opening fire. Sulaiman fired a shot at Najeebullah which landed at him who fell to the ground. Another fire was landed at accused Shamsul Haq and after firing both the accused decamped from the scene of occurrence.
8. Malik Haq Nawaz Advocate, the learned counsel for the appellant/convict argued before us that the learned trial Court while relying upon the statement of solitary chance witness has convicted the appellant was bad in the eye of law, especially when the deposition of the witness is suffering with serious infirmities and contradiction. He argued that another eye-witness of the occurrence has been abandoned by the prosecution because of the given up witness was not supporting the prosecution version. It was argued that there is nothing on the record corroborating the testimony of the sole eye-witness which was essential in this case as per its circumstances. He assailed that Sulaiman appellant was not present on the spot at the relevant time rather the family members of the appellant were proceeding to Shatton Nullah along with accused Shamsul Haq and when they reached at village Koroo, the complainant party attacked on them for nothing except to abduct the daughter of the appellant and during scuffling a brother of the deceased Najeebullah namely Fidaullah fired at Shamsul Haq and the shots so fired by him hit both deceased Najeebullah and Shamsul Haq and termed that in fact the complainant party was the aggressor.
9. Mr. Amjad Hussain, Advocate assisted by learned Assistant Advocate General on the other hand contended that the occurrence was witnessed by P.W.1 committing the murder of Najeebullah by the appellant because the appellant was trying to remove the deceased from the scene as he was not willing to give his daughter in his Nikah. It was argued that according to the documents brought on record by the defence, the appellant was present on the spot when the fateful incident took place and submitted that now the appellant could not be allowed to retract from his own admission. He argued that the statement made by P.W.1 as eye-witness is unimpeachable vide which he has proved that the murder of the deceased was committed by the appellant and while basing conviction on the testimony of P.W.1 and other circumstantial evidence, the learned trial Court has provided justice to the deceased party.
10. We have heard the learned counsel for the parties at length and perused the record of the case.
11. The prosecution has examined Mustaqeem (P.W.1) as eye-witness of the occurrence. Let us see how far the P.W. Has discharged the onus upon whose statement the conviction and sentence of the appellant has been based. It will also be judged if reliance can be placed on the statement of the P.W. Who was the real Mamozad brother of the deceased and also the sister of the deceases is in his wedlock. The truthfulness and integrity of the sole witness will also be checked while Evaluating his testimony. During examination in chief the P.W. Has stated as under:- "When he and co-witness namely Fazal Karim reached near Koroo Masjid, accused Shamsul Haq and Sulaiman also reached there from Sari side duly armed. Deceased Najeebullah who was present in Koroo Nullah while grazing his cattle, accused Shamsul Haq caught hold Najeebullah and called Sulaiman to open fire at him. Resultantly, Sulaiman fired at Najeebullh and his another fire was landed at Shamsul Haq. After the firing both the accused decamped from the scene of occurrence".
12. According to the entries of inquest report Exh.P.W.2/A, the I.O., has noted two bullet injuries on the body of the deceased. It is admitted on the record that postmortem was not conducted and the prosecution has relied upon the inquest report prepared by the I.O. Which reveals that two fire shots were landed on the body of the deceased and same has stated by P.W.1 "the star witness of the occurrence". Whereas the I.O. Has collected and took in his possession three empties from the place of occurrence alleging the empties were belonging to the shots fired by the accused Sulaiman and out of the fires one had landed at co-accused Shamsul Haq. The prosecution has built up the case in accordance with the statement of P.W.1 who says that at the time of occurrence deceased Najeebullah was alone on the spot and appellant Sulaiman fired two shots whereas the prosecution is of the claim that he fired three shots out of which one fire also had landed at Shamsul Haq. Anyhow, the ocular account although is in consonance with the inquest report but not in accordance with the prosecution version.
13. It is an admitted fact that Mustaqeem P.W.1 was a close relative of the deceased and probably same was the reason he as party almost attended the trial Court during trial of the case as emanating from the statement of. P.W.5 recorded on 11-5-2011 before Court. Thus, we hold that the P.W.1 being blood relative of the deceased was an interested witness in this case.
14. During cross-examination when P.W.1 was asked if deceased Najeebullah was a bona fide resident of village Karoo where the incident took place, the witness not only plainly negated the question rather remained mum from identifying the village of the deceased while the father of the deceased in his statement before Court has stated to be resident of village Koroo. There was no need to the witness to negate the question but he concealed the fact malafidely only to gain benefit and proved himself was not trustworthy. Admittedly, the occurrence was taken place near a Masjid situated at village Koroo which was the fact that just after the occurrence the parents of the deceased reached first of all at the site. P.W.1 and some other P.Ws. Have denied if the sister of the deceased was in the wedlock of P.W.1 but when same question was put to P.Ws.2 and 4 who are real brothers inter se and also real maternal uncles of the deceased .Have replied that they do not know if Mst. Batool the Sister of the deceased is in the wedlock of P.W.1. A maternal uncle is presumed to be a family member. The P.Ws.2 and 4 who are real maternal uncles of the deceased but do not know in whose Nikah their Niece Batool is, despite that they are bona fide residents of same village. In this case all the private P.Ws. Are close relatives to each others. It has been observed that almost all the P.Ws. Have concealed or tried to conceal facts which were not expected from them. When it comes to the notice of the court k, that a particular witness has tried to suppress a particular fact, such situation makes the prosecution case doubtful and even one lie of a witness causes tainting the other untainted evidence.
15. According to P.W.1, he and P.W. Namely Fazal Karim went to police station together for lodging FIR and the statement of Fazal Karim under section 161, Cr.P.C. Was also recorded by the I.O. At police station but this all has negated by P.W.8 who says that P.W.1 alone had come to police station with the application ExhP.W.1 /A on which basis he registered the FIR against the appellant and co-accused Shamsul Haq. The I.O. Further has stated that he recorded the statements of all P.Ws. Under section 161, Cr.P.C. At the place of occurrence. This all shows that the star witness of the occurrence either has told lie or was ignorant from the facts.
16. During the course of the arguments the learned counsel for the appellant stressed that P.W.1 and the given up P.W. Fazal Karim belong to village Sari Thore as such they were not present on the spot when the occurrence took place. It was argued that the claim of the P.Ws. That they were coming from Shatton Nullah with load of corn to their village Sari was not true. He argued that suppose the claim of the P.Ws. Was correct then they will be treated as chance witnesses, therefore the I.O. Was required to take the load of Corn in his possession as corroborative piece- of evidence.
The arguments on this very point advanced by the learned counsel for the appellant being material have convinced us to believe that the story prepared by the P.Ws. Was not true. P.W.1 has shown his keen interest in this case favouring the complainant party. This is because he was close relative of the deceased. He is the solitary witness supporting the prosecution case. His relationship with the deceased if coupled with the above infirmities and the element of falsehood observed in his deposition would suggest that there must have some corroborative piece of evidence to support the account of the. P.W. Neither the Corn load was taken into possession by the I.O. Nor P.W.
Fazal Karim was examined to show some justification about the presence of the P.Ws. On the spot at the relevant time and to corroborate the evidence of P.W.1, created compelling situation to believe that neither the P.Ws. Were present on the spot or the I.O. Has malafidely and dishonestly ignored the Corn load taking in possession.
17. The prosecution has based this case on the testimony furnishes by Mustaqeem (P.W.1) and P.W.
Fazal Karim (since abandonid). Both the P.Ws. Have claimed to be the eye-witnesses of the occurrence. The testimony furnished by sole P.W. Mustaqeem has been tested and found was not confidence inspiring. He was also a chance witness for his being resident of village Sari, Thore whereas the occurrence has taken place at village Karoo "the village of the deceased party" but on the day of occurrence the P.Ws. Allegedly came there from Shatton Nullah taking Corn load to their village as such they were the chance witnesses. Evidence of a chance witness is acceptable subject to establishing his presence at site where the occurrence took place provided that his presence on the spot is supported by some corroborative piece of evidence otherwise; evidence of a chance witness is of no consideration. The P.W.1 has explained in his deposition that at the relevant time he reached at the place of occurrence from Shatton Nullah with Corn load for his village Sari as such the Corn load could hardly be taken as corroborative piece of evidence but the I.O. Did not take the Corn in his possession to justify the presence of the P.W. On the spot. Thus, the presence of P.W. Mustaqeem and his coP.W. At the place of occurrence was highly doubtful.
18. As have observed above that P.W.1 Mustaqeem being chance witness and a very close relative of the deceased was required his evidence must have supported by some other piece of evidence which is lacking in this case. There was facility available to the prosecution of two eye-witnesses but it examined one witness who relatively was close relative to that of the witness since bandoned in view of the position of evidence gathered in this case, the prosecution was to examine both the P.Ws. So that the P.Ws. Could have supported each other's evidence. Solitary statement of a witness thought is sufficient to base conviction of an accused person provided that it was true and came from F unimpeachable source but solitary statement of a relative chance witness was seldom relied upon in a case involving capital charge unless such witness inspired confidence by furnishing plausible and convincing explanation for his presence at a place where he was ordinary not expected to be present at a given time. The solitary witness of the case has explained that he was coming from Shatton Nullah to his village Sari with Corn load but his testimony in this regard was not believable because the Corn load was not taken into possession by the I.O.
19. We have noticed that P.W. Fazal Karim who allegedly was accompanied with P.W. Mustaqeem at the relevant time and his name accordingly was mentioned in the FIR as an eye-witness but abandoned without furnishing explanation. Under section 114 of the Evidence Act, the Court may draw an inference adverse to the' prosecution that the given up witness might not have supported its version which compelled the prosecution to abandon the P.W. So that the case be'saved from complete destruction. No doubt that there is 110 obligation compelling counsel for the prosecution to call all witnesses who speak to facts which the prosecution desired to prove. Resultantly, it is a matter of discretion of the counsel for the prosecution and though a Court ought, and no doubt will take into consideration the absence of a witness whose testimony would be expected, it must test the evidence as a whole and reach at its conclusion accordingly taking into consideration the perseverance' of the testimony even in the light of such criticism as may be levelled at the absence of possible witness. The sole eye-witness has been held was not truthful for his being close relative of the deceased showing keen interest in the case by appearing in Court during trial of the case, in the given circumstances it was necessary for the prosecution to examine another eye witness to convince the mind of the Court that the statement of both the eye witnesses were in line despite subjecting them in lengthy cross-examination.
20. So far the circumstantial evidence brought on file in the shape of deposition made before Court by Umer Zada P.W.4 is concerned, this P.W. While appearing in the witness box has deposed that on 9-10-2009, he was going to Shattan Nullah from his home situated at village Sari along with P.W.
Fida Ahmad and when they reached near village Koroo accused Shamsul Haq holding a pistol while accused Suleman holding a rifle in their hands met them on the way. On enquiry both the accused without talking to them ran away from the said place. When they reached at the place of occurrence, P.Ws. Muhammad Younas, Mustaqeem, Fazal Karim and the mother of the deceased were present there who told them that Shamsul Haq and Suleman accused have murdered Najeebullah and then fled away. Contrary to this statement made before Court, this P.W. In his statement before police has narrated that on 9-10-2009 at about 830 hours he and P.W. Fida Ahmad in connection with some business were going from Sari to Shatton Nullah that on their way accused Suleman and Shamsul Haq holding a rifle by accused Suleman were coming in running position from opposite direction. On enquiry the accused did not reply them rather ran away. He and P.W. Fida Ahmad when reached at village Koroo they were told that the said persons have murdered Najeebullah. The statement of the P.W. Made before the police is quite different to that of his statement made before Court vide which he has improved his statement saying that when they reached at the place of occurrence, the eye-witnesses and the parents of the deceased Najeebullah were present on the spot. This P.W. While saying so has tried to make his statement in line with the statement of Mustaqeem (P.W.1) but even then he failed to bring at par his statement to the statement of the P.W. Because the P.W. When subjected in cross-examination says that he, P.W. Fazal Karim, mother, father and one Sister of the deceased shifted the dead body of Najeebullah to his house. According to P.W.4 Umer Zada when he and P.W. Fida Ahmad reached at the place of occurrence except the Sister of the deceased the other persons were present there.
The dead body of Najeebullah as per the P.W.1 has been shifted to his home by two eye-witnesses, parents and one sister of the deceased but the P.W. Is silent about the P.Ws. Namely Umer Zada and Fida Ahmad. It is admitted that P,W. Umer Zada was maternal Uncle of the deceased but surprising to note that he and P.W. Fida Hussain reached at the place of occurrence and till that time the dead body was not shifted, even then he did not accompany the dead body to its home and that P.W.1 Mustaqeem also is silent about P.W. Umer Zada and Fida Ahmad if they had reached on the spot just after the occurrence. The statement of P.W. Umer Zada is also fake, planted and was managed one just to bring some piece of circumstantial evidence on file. The deposition of P.W. Umer Zada, otherwise, was not believable because when he subjected in cross-examination he testified that he does not know if Mst. Batool, the sister of the deceased is in the wedlock of P.W.
Mustaqeem. The witness being real Mamo was blood relative of Mst. Batool and having good relations with the deceased party does not know in whose wedlock his niece Batool was?
Consequently, the statement of P.W. Umer Zada is not considerable, and discarded.
21. P.W.8, who is the I.O. Of the case claims that just after the occurrence be prepared site plan Exh.P.W.8/B at the pointation of eye-witnesses. Mustaqeem, P.W.1 has been examined in this case as the only eye-witness has remained silent throughout in his statement about such site plan was prepared in his presence. According to the site plan, accused Suleman has fired from point-2 at the deceased who was at point 1. There is a distance of about 3/4 paces between points 2 and 1.
The crime weapon was fire shot, thus question arises why accused Suleman not fired at the deceased from the point blank range especially in an atmosphere when there was no any person intervening. According to the eye-witness, accused Sulaiman fired two shots from his gun and both have landed at the deceased and accordingly the inquest report has been prepared. The question again arises that how the shot fired by accused Sulaiman hit to his co-accused when he had opened only two fires. The site plan is, therefore held was not prepared by the I.O. In the presence of P.W.1.
22. The prosecution is of the claim that the I.O.. Took in possession three empty shells from the scene of occurrence besides the last wearing clothes of the deceased but these articles did not produce before Court for identification. The I.O. Has also failed in taking into possession the blood stained earth from the place of occurrence which was the requirement of law to identify the occurrence where it had taken place and that the same was tested. In this case such proceeding was specially mandatory to have carried for reasons that there was counter claim from defence side that the occurrence was not occurred in the place alleged by the prosecution that also in the manner as narrated by the eye-witness. The claim of the defence is that the occurrence took place near the house of the deceased when they attacked on the accused party to abduct the daughter of accused Sulaiman upon whom deceased Najeebullah was claiming to be his wife.
23. When prosecution claims in a case that the I.O. Had recovered empty shells from the scene of occurrence and took into possession the last wearing blood stained clothes of the deceased but later on failed to produce before Court for their identification so much so failed in remitting the articles to the laboratory for their test, in such a situation the Court is justified to draw inference that no such incriminating article was taken into possession by the I.O. The accused Sulaiman has remained absconder and when he was arrested by P.W.7 and recovered a five shot gun from his possession as weapon of offence but the I.O. Again failed to send the rifle to the expert for analysis.
The I.O. Was bound under law to send the empties to the expert at the time when he took the empties into possession and later on the rifle when same was recovered from the accused. The weapon of offence five shot rifle has been recovered from the accused as per the story of the prosecution in presence of two private witnesses but at trial only one witness was examined but the witness did not support the prosecution version eventually he was declared hostile whereas the another witness was abandoned for unknown reasons but even then the learned trial Judge recorded conviction against the appellant under Section 13 of Arms Ordinance and sentenced him rigorous imprisonment for five years, fined rupees five thousand and in case of default to further undergo one moth simple imprisonment was completely bad in the eye of law.
24. Coming to the arguments related to another version raised by the defence side, regarding the manner vide which Najeebullah was murdered. In this regard accused Sulaiman and the co- accused Shamsul Haq during their examination under section 342, Cr.P.C. Have stated that on the day of occurrence only accused Shamsul Haq was going along with his wife and two daughters of accused Sulaiman from village Sari to Shatton Nullah and when they reached near the house of deceased Najeebullah, the deceased, his one brother Fidaullah and two other relatives attacked on them with intention to abduct one daughter of Sulaiman upon whom the deceased was claiming to be his wife. During the course of scuffling, accused Shamsul Haq and one daughter of Sulaiman tried to rescue the daughter of Sulaiman being, abducted by the deceased and his companions, resultantly Fidaullah fired at Shamsul Haq which landed on Najibullah resulting in his death while one shot fired by said Faridullah also hit him causing injuries. During their examination under section 342, Cr.P.C., in reply to a question the accused have, stated that the instant case was registered against them because the dispute over the daughter of the accused Shamsul Haq and the complainant party had settled by a local Jirga vide which the daughter of the appellant was held not to be the wife of deceased Najibullah. This decision of the Jirga made the complainant party annoyed and on the day of occurrence the deceased, his brother Fidaullah and two other relatives tried to abduct forcibly the daughter of accused Sulaiman and when the deceased caught hold the daughter of Sulaiman, the co-accused Shamsul Haq and an another daughter Mst. Nadia tried to rescue his daughter from being abducted that in the mean time Fidaullah, the brother of the deceased opened fire at them and due to his firing, Najibullah died on the spot whereas Shamsul Haq got injured and that the deceased party also stabbed his daughter Nadia with sharp object of the rifle. To establish this version, the accused party tried their best to get registered a counter case against the deceased party through filing applications before learned Sessions Judge Diamer, SP Diamer and IGP GilgitBaltistan but in vain. The counter version advanced by the defence has been admitted even by the I.O. In his last report made in the challan of the case wherein he has frankly conceded actual manner in which the occurrence was taken place. This admission by the I.O. Has completely destroyed the prosecution case. Why the prosecution tried to develop the story in a manner which was not true? The answer is simple that the complainant party with the collusion of the Police was of the intention to penalize accused Sulaiman for his refusal to give his daughter in Nikah of the deceased
25. Admittedly the accused party along with some ladies were going to Shatton Nullah and when they were passing from the village of the deceased Najeebullah, he attacked on them to~ abduct Mst. Azeema, the daughter of appellant. A man with whom ladies are travelling could not be believed have attacked on his rival party especially in their village. Thus, there is no doubt that the complainant/accused party was aggressors. In the given situation when the accused party approached the I.O. For registration of a counter criminal case against the deceased party so that the I.O. Could be able to arrest all the accused persons and have recovered crime weapons from them allegedly used in the occurrence and then have to sent the weapons to arms expert along with the empties for determination as to which empty was fired from a particular gun. Accused Shamsul Haq had also a pistol in his hands at the relevant time but the I.O. Did not recover the pistol leading to believe that the I.O. Has not discharged his duties in accordance with Jaw. It may be worth mention that after the conclusion of the trial of the case the deceased party compounded the matter to the extent of accused Shamsul Haq and on that basis he was acquitted from the charge. Whether the fire was made at the deceased by co-accused Shamsul Haq, in the given situation, such possibility also could not be overlooked.
26. When accused Shamsul Haq along with ladies reached near the house of Najeebullah, they were attacked by the deceased party. In such circumstances right of defence was also accrued to the accused till the danger was prevailed but the counter version has not accepted by the prosecution as such the question of right of self defence does not arise here. Since the prosecution has failed to prove the occurrence was taken place in the manner claimed by it whereas the defence version as per the record is true entitling the convict/accused to be acquitted. The documents produced before Court by the accused during their statements under section 342, Cr.P.C. Could not provide any benefit to the prosecution case because the manner in which the occurrence was taken place as stated in these documents has not accepted by the prosecution whereas it has failed to prove the case as per its own version as such if the accused even had accepted during examination under section 342, Cr.P.C. That the murder had committed by him, was not sufficient for his conviction. Legally prosecution is not permitted to take partially benefit from any of the documents produced before Court by the accused because it cannot be allowed to blow hot and cold in same breath as it would amount to approbation and reprobation.
27. Consequently, we are of the clear opinion that the prosecution has failed to prove its case beyond any shadow of doubt. Consequently, the appellant Sulaiman is acquitted of all the charges by setting aside the impugned judgments dated 13-9-2012 passed by the learned Additional Sessions Judge, Diamer. The murder reference is answered in the negative accordingly.
28. These are the reasons of our short order dated 26-11-2014. File.