YAR MUHAMMAD, J.---Appellant Lal Muhammad has been convicted under section 302(b), P.P.C.
For murdering Hussain Muhammad son of Miser Khan on 4.5.1996 at about 1715 hours on Sharote road Darel, by the learned Additional Sessions, Judge, Diamer vide his Judgment dated 16.3.2012 in Sessions case No,82/2008 and sentenced to life imprisonment under section 302(b), P.P.C. Together with fine of Rs, 100000/- with direction to pay the amount to the legal heirs of the deceased as provided under section 544-A, Cr.P.C. Or in default to suffer R.I. For six months. However, benefit of section 382-B, Cr.P.C. Has been extended. The appellant has filed this appeal assailing the above judgment.
2. Precisely stated the facts relevant to the case as enumerated in the Judgment impugned are to the effect that FIR No, 14 of 1996 Exh.PW-1/A, was registered on 4.5.1996 with police station Darel, District Diamer under sections 302/404/34, P.P.C. On the basis of statement made by one Sher Muhammad "the real brother of the deceased" who had stated that he is a resident of village Phugach and on the date at about 1745 hours he came out from his home to make preparation for Asar prayer that all of a sudden he from nearby heard reports of two firings. He rushed to the firing direction where he found his younger brother Hussain Muhammad was lying on the road while Hajat Wali and Tajuddin were reciting Kalima. He looked to the upper side and witnessed the appellant/convict and his brother Khan Muhammad were decamping holding guns in their hands.
On enquiry, the said persons told him that after opening simultaneous two fires with Kalashnikov by the appellant on Hussain Muhammad, have escaped from the scene taking along the gun of the deceased. While the brother of the appellant namely Khan Muhammad instructed the appellant for quick escaping and who also fled away with the appellant. The motive behind the occurrence as advanced in the FIR was a quarrel took place between the appellant and a friend namely Jalil of the deceased and as a result thereof the appellant had also snatched the gun of the said Jalil and on prohibiting by the complainant party the appellteful incident.
3. Trial of the case commenced on 26.6.2008 while the appellant/accused was formally charge- sheeted on 2ant had agreed to settle differences with Jalil but even then he maintained the mischief with Jalil and due to the reason the quarrel took place between the two on the day resulting in the fa9.10.2008 to which he did not plead guilty rather claimed to be innocent. It may be noted that the prosecution has alleged that. Just after the occurrence, the accused became fugitive of law but in proof of the claim no proceedings as provided under sections 87/88, Cr.P.C.
Have been seen on file initiated against the appellant and neither any question on this point has been put to the appellant during examination under section 342, Cr.?.C. Anyhow, on 17.4.2008, the appellant was arrested by the police allegedly conducting a raid and recovered from him a five shot gun as weapon of offence instead of Kalashnikov he used in the commission of offence as per the statements of the eye-witnesses.
4. The prosecution has examined 8 PWs in all but mainly have relied upon the ocular account furnished by PWs 1 to 3 to substantiate its case.
5. In his statement recorded under section 342, Cr.P.C., the appellant has categorically denied the allegations leveled against him. He neither opted to be examined on Oath as provided under section 340(2), Cr.P.C., nor led any evidence in defence.
6. On the conclusion of the trial, the learned trial Court convicted and sentenced the appellant as stated above. Being aggrieved and dissatisfied with the conviction and sentence, the appellant has assailed the Judgment through this appeal.
7. We have heard M/S Jamal Khan and Amjad Hussain advocates for the appellant and have gone through the record and proceedings of the case in minute particulars. The learned counsel for the appellant while criticizing the impugned Judgment submitted that the judgment is based on mis- reading and non-appraisal of evidence as such is not sustainable in law. According to them there was no enmity between the parties and the only difference as alleged by the complainant was that appellant was disputing with a friend namely Jalil of the complainant party and as a result of that he had snatched the rifle of said Jalil and despite request of the complainant party the appellant was disputing with the said person and submitted that these facts do not constitute any motive of killing between the parties. It was argued that the prosecution case rests upon the ocular account which is contradictory on material points that also being furnished by the interesting witnesses, is not reliable especially when same has not corroborated by any piece of evidence.
8. The learned Dy. Advocate General assisted by Malik Haq Nawaz advocate the learned counsel for the complainant on the other hand contended that the ocular account furnished by eye- witnesses was to the standard as such no corroborative piece of evidence was required to substantiate the verbal evidence to prove the same was correct.
9. According to the version of the prosecution prior to the incident a quarrel was taken place between the appellant and deceased Hussain Muhammad as a result thereof the appellant opened two fires at the deceased resulting in his death on the spot and this very background of the case has stated by eye witnesses of the occurrence. We have examined the ocular account furnished by the PWs basing on which the learned trial Court has convicted the appellant. Sher Muhammad, PW-1 on whose instance the FIR Exh. PW-1/A was registered has stated that he is the real brother of the deceased and at the relevant time when he came out from his house to make preparation for Asar prayers that in the meantime he heard reports of two fires opened simultaneously from nearby. He rushed to the firing direction where he saw his brother Hussain Muhammad was lying on Sharote road while PWs Hajat Wali and Tajuddin were reciting Kalma whereas the appellant and his brother Khan Muhammad carrying guns in their hands were escaping. On enquiry the said persons told him that after opening fires by the appellant with Kalashnikov and also snatching the gun of his deceased brother the appellant escaped away whereas his brother was calling the appellant from upper side for hasty escaping. In the first portion of the FIR, the PW states that on reaching at the place of occurrence when he looked to the upper side he witnessed the appellant and his brother escaping holding guns in their hands while at its second portion, he states as was told by the two PWs that appellant fired at deceased Hussain Muhammad while his brother was calling him from upper side for hasty escape. Out of the two versions of the PWs which will be taken to be correct but the right answer of the question is that these two versions of the eye- witnesses put bad impacts on the prosecution case. Sometimes, PW-1 says that when he reached on the spot the appellant was present at some distance but the PW is mum if the brother of the appellant was also with the appellant or not. It will be worth mention here that later on the I.O. Released the brother of the appellant u/s 169 Cr.P.C. And to give coverage to this very act of the I.O. The PW in his statement before court just says that when he reached at the scene of occurrence the appellant was running towards western side while PWs Hajat Wall and Tajuddin were reciting Kalma to the deceased and there after some other person reached there. In his statement before court PW-1 is silent about the presence of the brother of the appellant on the spot at the relevant time. PW-2 who claims to be eye witness of the occurrence says that after firing accused Lal Muhammad escaped from the place of occurrence whereas a person from upper side was calling him but he could not identify the person and thereafter, PW-1 who was the first person reached on the spot followed by some other persons. Here, the PW-2 is also mum in naming the persons who reached on the spot after arrival of PW-1 on the spot. PW-2 in his statement says that the person calling the appellant from upper side was not ,identified by him whereas PW-1 in sometimes says that the real brother of the appellant was there running with the appellant. This position of the evidence furnished by the eyewitnesses compels to believe that either both the PWs were not present or any one of them was not present but it is clear that this difference in the evidence create serious doubts in the prosecution case. About the availability of the brother of the appellant on the spot at the relevant time I" PW-3 namely Behram Khan in his statement under section 161, Cr.P.C. Says that on hearing hue and cry, he and PW Gul Safaid when reached at a distance of few spaces from the site of occurrence they saw the appellant and deceased Hussain Muhammad quarreling with each other while PWs Hajat Wali and Tajuddin were present there that in the meantime, the appellant opened two fire shots from his Kalashnikov at the deceased and escaped towards upper side. He looked to the upper side and saw a brother of the appellant was also running with him. Whether the brother of the appellant was present there and he played any role, the PWs-1, 2 and 3 must be of same versions but we have noticed glaring contradictions appearing in their statements casting negative effect to the prosecution case.
Whether the gun owned by deceased Hussain Muhammad was taken away by the appellant after commission of the offence, in this regard PW-3 Behram Khan is silent despite that he also claims to be eye-witness of the occurrence nor such gun has recovered from the appellant by the I.O. So much so there is no explanation on file furnished by the 1.0. As to why the gun of the deceased allegedly took away by the appellant was not recovered. PW-3 Behram in his statement before police says that at the time of firing, the brother of the appellant was also escaping along with the appellant while in his court statement he says that at the time of firing the brother of the appellant was standing in some distance from the scene of occurrence. He further says that when he and PW Gul Safaid reached at the site, Sher Muhammad PW-1 had already reached there while in his court statement he says that PW Sher Muhammad reached there after their reaching. P.W Sher Muhammad in his statement says that when he reached at Sharote road his deceased brother was lying on ground while PWs Hajat Wali and Tajuddin were reciting Kalma and thereafter some persons reached there. Admittedly, PW Behram was among these other persons and this PW is close relative of the deceased but the complainant did not mention his name in the FIR despite of the fact he mentioned the names of PWs Tajuddin and Hajat Wali stating were present on the spot.
FIR lodger is not legally bound to mention the names of the PWs in the FIR but when he mentions the names of some witnesses in the FIR it become necessary for him to mention the names of all PWs otherwise the PWs whose names have not mentioned in the FIR and later on they came forward claiming to be eye" witnesses would not be believed upon and this contrast would make the case doubtful. PW Behram Khan clearly says that after his arrival at site PW Sher Muhammad reached there who in his report has mentioned the names .Of only two PWs to be present on the spot when he reached there. Let us suppose that PW Behram had reached at site after reaching of PW Sher Muhammad, then the FIR lodger had to mention the name of this PW in the FIR because he was his close relative and almost was the eye-witness of the occurrence. This very omission makes the prosecution story further doubtful. Tajuddin PW-2 in his statement under section 161, Cr.P.C.
Says that when appellant opened fires at the deceased, he caught hold the deceased and supported him to lay on the ground. It means that at that time the PW was already catching hold the deceased but at the same time he says that he was at some distance when the firing was opened. This witness further says that two fires had fired which hit to the deceased but before court says that out of the two shots only one had hit to the deceased. In this way while improving statement the PW has tried to make his statement in consistence to the entries of report which shows that only one fire was landed at the deceased. Some PWs say that their statements under section 161, Cr.P.C. Were recorded in the house of one Noman but according to the complainant same were recorded in his house. Statements of PWs in which manner they recorded is an event of big one as such it could not be believed that a witness of same set deposing contrary could not say have deposed so due to slip of memory. PWs-1 and 2 must be inline on this fact and any contrast appearing in their depositions would be presumed that the testimonies furnished by the PWs are not correct and trustworthy. Tajuddin PW-2 in his statement before police says that at the relevant time he was going to home of someone but again says that he was going to the house of the appellant because he was his friend like a brother. A witness who says that the person against whom he deposes was like his brother claiming cordial relations with him but during cross- examination contrarily admits that he had enmity with the maternal uncle of the accused. If this contrast is tested keeping in the other discrepancies appearing in the statement of PW-2, same could not be held to be trustworthy hence discarded. The PW has malafidely deposed about his having friendly relations with the appellant to make the court believed that he is testifying truth and this way he concealed the facts as such he could not be treated a credible witness to be believed upon his evidence. For instance he says that the appellant is his friend like a brother but at the same time admits about the existence of enmity between him and the maternal uncle of the appellant and culturally in this area the enmity is common between the two relatives. The facts brought on the record show that PWs-2 and 3 were chance witnesses of the occurrence and their statements have not been corroborated by any other piece of evidence hence any sentence could not be based upon.
10. We have scanned the prosecution evidence brought on the record and have seriously observed that according to the stand of the prosecution, the occurrence took place in presence of PWs Hajat Wali and Tajuddin. Tajuddin has been examined as PW-2 but Hajat Wali could not be examined because he was murdered during the trial of the case but the astonishing thing we noted was the statement of the deceased PW is not available on the record. Record shows that PW Hajat Wali was murdered and the blame of his murder was attributed to PW-3 namely Behram who is the real cousin of the deceased. During the course of arguments, the learned counsel for the State did not able to convince the court as to why the statement of the deceased PW not recorded. The fact about non-availability of the statement of the PW on record if linked with the blame of murder of the PW, creates serious doubts in the case. The question does arise if the deceased PW was to tell something contrary to the prosecution version and to avoid such awkward situation the statement of the PW either was not recorded or has been detached from prosecution file. It is true that the statement of a PW recorded under section 161, Cr.P.C. Is not substantive evidence which can be used for a limited purpose of contradicting a witness at the trial to prevent him from corrupting his testimony by way, of dishonest improvements. Anyhow, its importance is still there in law. The I.O.
Records it just to make out a prima facie case so that trial of the case could be commenced on that basis. It is the right of the accused to confront a witness with his statement under section 161, Cr.P.C. When he appears before court for deposition. In the present case when the I.O. Records the statement of one witness and omits to record the statement of pair witness such omission casts negative impact in the prosecution case. According to the prosecution version, the appellant committed the offence by opening fire shots with Kalashnikov while the I.O. Has recovered a five shot gun as weapon of offence which recovery also was not proved at trial. According to our opinion each and every piece of evidence collected by the I.O. If perused collectively comes to see was full of doubts.
11. The occurrence has taken place at the time of Asar prayers. The complainant has proceeded to the police station directly from the place of occurrence for report. The police station is situated in a distance of about 9 Kilometer. When the 1.0. Came back at site it was again the Asar prayer time.
The I.O. Carried proceedings relevant to the site vide which he claims have prepared site plan but same is not on file. No blood stained earth was picked from the site and neither the empties were taken in possession. For carrying proceedings relevant to site the I.O. Had the ample opportunity to do so but failed as such no one could hardly believe that the occurrence although may have taken place on the given place but not in accordance with the version and manner as disclosed by the prosecution.
12. We have gone through the judgment of the trial court made impugned here. The learned trial court, no doubt, has observed the defects in the case but failed to give benefit of the defects and doubts to the accused rather he used the doubts against the appellant, resulting in the miscarriage of justice. The trial court among other grounds has also based the impugned conviction on the alleged abscondance of the accused. The prosecution is of the version that after commission of the offence the accused/appellant became fugitive of law, is incorrect because there is no evidence on the record vide which the 1.0. Has carried any proceedings against the appellant showing he was absconder. Moreover, during examination of the accused under section 342, Cr.P.C. No question in this regard has put to the appellant by the learned trial court. Law suggests that every bit of incriminating evidence must be put to the accused so as to seek his reply and conviction of accused could not be based on the evidence or material which was not put to the accused while recording his statement under section 342, Cr.P.C.
13. In view of the above, we are convinced that no implicit reliance can be placed on the ocular evidence produced in this case. In any case the rule of prudence requires independent corroboration of the ocular testimony qua the accused which is lacking in this case and that the ocular account also suffers with material contradiction. For all these reasons we feel that the prosecution has failed to prove its case beyond reasonable doubt against the appellant.
14. The appeal is, therefore, accepted. The appellant's conviction and sentence is set aside and he is hereby acquitted. He shall be released forthwith if not required to be detained in any other case.
15. These are the reasons of our short order dated 5.3.2015.