SAHIBZADA ASADULLAH, J:- This criminal appeal is directed against the judgment dated 09.09.2023 of the learned Additional Sessions Judge-II/Model Criminal Trial Court/JGBVC/Izafi Zilla Qazi, Buner at Daggar, delivered in case FIR No.25 dated 03.03.2021 registered under sections 302/311 PPC read with section 15 AA at police station Gulbandi, District Buner, whereby the appellant has been convicted under sections 302/311 PPC and sentenced to death (on two counts) and to pay Rs.500,000/- / Rs.500,000/- as compensation to the legal heirs of the deceased within the meaning of Section 544-A Cr.P.C or in default whereof to suffer six months SI. The appellant has also been convicted under section 15 of The Khyber Pakhtunkhwa Arms Act, 2013 and sentenced to undergo rigorous imprisonment for three years with fine of Rs.10,000/- or in default whereof to further suffer one month S.I. All the sentences have been ordered to run concurrently, while benefit under section 382-B Cr.P.C has been extended to the convict/appellant. Appellant has impugned his conviction, whereas the learned trial court has sent Murder Reference to this court for confirmation or otherwise of the death sentence.
2. Precisely stated facts of the case, as spelt out from the record, are that on 03.03.2021, the local police of Police Station Gulbandi, Buner, after receiving information qua double murder at general thoroughfare Jama Dhera Kandaw area Bahadar Khan, rushed to the spot, where they found a dead body of male deceased. The complainant (P.W.09) was present with the dead body who reported the matter to the police to the effect that deceased Mir Nawaz Khan was his nephew, whose father is abroad in Saudi Arabia; that on the eventful day, his nephew (deceased) went to Shaheeda Sar Bazar for purchasing household articles, whereas he was waiting for him at his house; that he along with Tahir Khan went out from the house and when his nephew, who was coming from bazar reached to the place of occurrence in the meanwhile, accused Shahid Zaman armed with pistol, who was already present there, started firing at his nephew, as a result of which his nephew got hit and sustained firearm injuries on different parts of his body and died on the spot, whereafter the accused/appellant went to his house and committed the murder of his wife with his pistol. Motive behind the occurrence was stated to be illicit relations between his nephew and Mst.Gul Samari. Hence, the FIR ibid.
3. On arrest of the appellant and completion of investigation, initially challan was submitted before the court of competent jurisdiction, charge was framed to which he did not plead guilty and wished for trial. As such the learned trial court was pleased to direct the prosecution to produce its evidence. In order to prove its case, prosecution produced and examined as many as 11 witnesses, whereafter statement of the accused was recorded, where he professed his innocence, but did not opt to record his statement under section 340 (2) Cr.P.C. After conclusion of trial, the learned trial court found the appellant guilty of the charge and whilst recording his conviction, sentenced him as mentioned above, whereagainst he has filed the instant appeal.
4. The learned counsel for parties as well as the worthy Additional Advocate General were heard at length and with their valuable assistance the record was scanned through.
5. The incident shocked us to the core, as it claimed the lives of two persons, one the deceased Mir Nawaz Khan, whereas the other Mst. Gul Samari. The matter was reported by the complainant on the spot on arrival of the local police. The injury sheets and inquest reports were prepared and, thereafter the dead bodies were sent to hospital for postmortem examination. The investigating officer visited the spot and prepared two different site plans, as the incident occurred in two different places, i.e. one where the deceased Mir Nawaz Khan was done to death and the other, where the deceased Mst.Gul Samari was killed. The investigating officer collected blood stained earth from the place of deceased Mir Nawaz Khan and on visiting the house of the deceased Mst.
Gul Samari, he also recovered blood stained earth. Though the empties were not shown in the site plan, but the recovery memos depict that from the place of male deceased four empties of 30 bore pistol were recovered, whereas from the place of the female deceased five empties of the same bore. The appellant was arrested on 03.03.2021 i.e. on the day of incident at 19:30 hours and from his personal possession a 30 bore pistol was recovered and in that respect section 15-AA was added. The collected empties and the recovered pistol were sent to the fire arms expert and a report was received telling that the empties were fired from the recovered weapon. The appellant was committed for trial and on conclusion of the trial, was convicted and sentenced vide the impugned judgment.
6. The learned trial court while handing down the impugned judgment, took into consideration the evidence on file and appreciated statements of the witnesses, it was after a full dressed trial that the conclusion was drawn. As in the unfortunate incident both the deceased lost their lives and for the same the appellant is charged, so this Court is to see as to whether the learned trial court succeeded to appreciate the evidence on file and as to whether the prosecution succeeded in collecting trustworthy and confidence inspiring evidence. No doubt, on one hand the deceased is charged for the murder of his wife, whereas on the other for the tragic death of the deceased, but that by itself is not sufficient to hold the appellant responsible for the commission of the offence, rather this court is to see as to whether the learned trial court succeeded in appreciating the evidence on file and that the conclusion drawn is based on reasons. In order to avoid miscarriage of justice, this court is to scan through the record and to re-appreciate the evidence.
7. The points for determination before this Court are as to whether the incident occurred in the mode, manner and at the stated time; as to whether the witnesses were present on the spot at the time of occurrence and in the hospital when the dead bodies were examined by the doctor; as to whether it was the complainant who reported the matter or that preliminary investigation was conducted in the case; as to whether the medical evidence supports the case of the prosecution; as to whether the appellant was arrested in the mode, manner and from his personal possession the pistol was recovered, which yielded to a positive report and as to whether the prosecution succeeded in bringing home guilt against the appellant.
8. The attending circumstances of the present case do tell that the parties are closely related to each other as the daughter of the complainant i.e. Mst.Roshan Pari, is married to the brother of the appellant and the complainant is the real uncle of the deceased, likewise the eyewitness is his brother-in-law. Keeping in view the close relationship between the parties and keeping in view the relationship of the deceased with the complainant and the eyewitness, we deem it essential to take into consideration the statements of the witnesses and to appreciate the manner in which the incident occurred. The unfortunate deceased i.e. Mir Nawaz Khan as per story of the prosecution left his house for local bazar to purchase house-hold articles, when he did not return in time, the complainant and the eyewitnesses went after him and on reaching to the place of incident they found, the appellant duly armed present and when the deceased reached near him he was fired at. The witnesses further disclosed that after killing the deceased the appellant fled away from the spot and after sometime he heard that he killed his wife. Record tells that both the incidents occurred at a distance of 580 paces from each other and that because of a hillock the house of the deceased Mst.Gul Samari was not visible from the place where the male deceased was done to death. This Court is to see as to whether the witnesses remained consistent on material aspects of the case and that whether the witnesses succeeded in establishing their presence on the spot. In order to appreciate this particular aspect of the case, we deem it essential to go through the statements of the witnesses i.e. the complainant, who was examined as (P.W-09) and the verifier of the report i.e. P.W Tajar Khan as (P.W.10). The complainant disclosed that on the day of incident he was present in the house, whereas the deceased left to purchase diesel oil; that when the deceased did not return in time, he along with the eyewitness i.e. Tahir Khan went after him and on reaching to the spot they found the appellant duly armed, when the deceased arrived, he was fired at who died on the spot; that the appellant ran towards his house and also killed his wife; that on arrival of the local police the matter was reported. This Court is to see the presence of the complainant and that of the eyewitness on the spot, at the time of occurrence and the purpose of their presence. It is an admitted fact that P.W Tahir Khan is the resident of village Bar Teraj, which is admittedly situated at a distance of 1 1/2 hours travel from the house of the complainant, so this Court is to see that what led the eyewitness to the house of the complainant and at what time. The complainant was cross-examined regarding the incident in issue and he was questioned regarding the fact that how, when and at what time he left the house and reached to the place of occurrence. It is pertinent to mention that P.W Tahir Khan was not examined on the pretext of his being abroad, so instead, the verifier of the report i.e. P.W Tajar Khan was examined and a lady from the house, where the deceased was done to death, but subsequently she was declared hostile. As apart from the complainant, there is no eyewitness to the first incident, where the deceased Mir Nawaz Khan lost his life, so this Court is to test the credibility of this witness by taking into consideration the manner in which the incident occurred. The complainant stated that when the deceased did not return, it increased his anxiety, so he and the eyewitness left the house to inquire. The complainant could not explain that for what purpose P.W Tahir Khan had come to the house and that why both decided to go after the deceased, as the deceased had hardly left an hour before. The complainant could not explain that the appellant had enmity in the area or that he was of such a character, that his late return increased his anxiety, as well as, that of the eyewitness. Nothing was brought on record, which would confirm to this Court that the witnesses were worried about the late return of the deceased and that the deceased had enmity in the area.
When nothing was brought on record, then the anxiety of the complainant and that of the eyewitness failed to convince the very purpose of their leaving the house and of their reaching to the place of incident. It is nothing, but a co-incidence that at that very time, the eyewitness arrived and the deceased was fired at. As the eyewitness i.e. P.W Tahir Khan was abandoned, so we are to take into consideration the statement of the complainant and we are to judge the guilt of the appellant on its strength alone. We are to consider that whether on the day of incident P.W Tahir Khan visited the house and that he accompanied the complainant to the place of incident. When such is the state of affairs, then this Court is confident in holding that the eyewitness Tahir Khan neither visited the house of the complainant, nor accompanied the complainant to the place of incident. Even otherwise, the manner in which the complainant explained the circumstances, does not appeal to a prudent mind and his conscious attempts has disturbed the judicial mind of this Court, regarding his presence on the spot. When the witnesses failed to convince that they were present on the spot and that the incident occurred in their presence, then this Court is left with only option to hold that the presence of witnesses was procured, after the incident, so the possibility cannot be excluded that preliminary investigation was conducted in the case. Reliance is placed on a case titled "Naveed Asghar and two others Vs. The State" (PLD 2021 Supreme Court 600) which reads as follows:- "16. Reading of the statement of Mirza Muhammad Umar (PW-13) shows that he is a chance witness: a witness who in view of his place of residence or occupation and in the ordinary course of events is not supposed to be present at the place of the occurrence but claims to be there by chance. Testimony of such witness requires cautious scrutiny and is not accepted unless he gives satisfactory explanation of his presence at or near the place of the occurrence at the relevant time."
9. The complainant disclosed that the incident occurred at 12:40 hours, whereas the matter was reported to the local police at 13:30 hours, on their arrival to the spot. If the complainant and the eyewitness had reached to the place of occurrence at 12:40 and when the deceased were done to death at the same time, then it is for the complainant to tell that why he and others did not shift the dead bodies to the hospital or to the Police Station. Record is silent and so the complainant, that who informed the police and that how the police reached to the place of incident. It is pertinent to mention that on arrival of the local police, to the spot, the matter was reported by the complainant, but the scribe, stated that on arrival to the spot, the dead body of the male deceased was available, whereas that of the lady deceased was brought to the stated place, after his arrival. It is interesting to note that when the scribe reached to the place of incident and when the report was made by the complainant, then he should have visited house of the female deceased, as by then her dead body was lying in the house. The explanation given by the scribe regarding the shifting of the dead body of female deceased to the place of the male deceased, does not appeal to a prudent mind and we are anxious to know that what for the dead body of the deceased, Mst.Gul Samari, was brought to the place where the dead body of deceased Mir Nawaz Khan was lying.
This particular aspect of the case has troubled the judicial mind of this Court and this Court is not reluctant in holding that the female was also killed outside the house. The investigating officer, while preparing the site plans did not mention the recoveries of empties, from the spot, but later the empties were shown recovered, this aspect of the case has further disputed the exact place, where the lady deceased was killed. The uncertainty created pushes us to hold that the deceased were killed when found together.
10. We struggled to resolve the controversy that where and under what manner the deceased were done to death. We succeeded to get a clue, after going through the statement of the marginal witness, who was examined as P.W.04. This witness found the dead body of male deceased at a place surrounded by shrubs and pine trees. We believe the statement of this witness and the same tells of different circumstances than that of the witnesses. It is this particular aspect of the case, which troubles the judicial mind of this Court regarding the place and regarding the manner of the incident. We are inclined to hold that the unfortunate deceased were killed outside the house, while enjoying each other's presence. If the cause to kill was the illicit relationship, and if the appellant was so moved, then the lady deceased was the easiest target to be chosen, at the earliest, as she was living under the same roof. If the appellant had planned to kill, then under all circumstances he would kill his wife and, thereafter would go after the deceased. The circumstances do tell that the male deceased visited the premises to capture the occasion and so the female deceased, as she failed to stay back. It was the intensity of emotions that the poor souls lured in and faced the deadliest consequence.
11. It is for the complainant to tell that he witnessed the subsequent killing, but he failed to convince as the house was not visible to him. Record tells that the house of the lady deceased lies away from the place where the male deceased was done to death, intervened by a hillock. He presumed and he charged. We are confident to hold that the complainant could not see the appellant while entering the house and prosecution could not lay its hands on a witness, who could tell that how the female accused lost her life. We are mindful to the relationship of the appellant with the female deceased, but whether that alone could fix the liability. Yes, he is the husband, but that alone will not determine his involvement. We must demonstrate patience while fixing the liability between the spouses.
Rather we must consider the circumstances of every individual criminal case. We must refrain ourselves from willful betrayal and if we hold that for the unnatural death of his wife the husband under all circumstances would be liable, it would amount to conviction before trial. We must not take it for granted rather these are the circumstances to determine the involvement. Record tells that the incident occurred at 12:40 i.e. the time where in routine the male members are out of the house. In this particular case the presence of the appellant, in the house was presumed, but the circumstances place greater responsibility over the prosecution to prove and less on the appellant to disprove. Had the incident occurred and in the odd hours of the night, the liabilities to prove and disprove would shift. In this particular case, the circumstances are changed and these are the changed circumstances which call for a changed approach. Once the witness claims that a particular incident occurred in a particular manner, he accepts the burden and he is to prove the manner, it occurred. Reliance is placed in a case titled "Nazir Ahmad Vs. The State (2018 SCMR 787), which reads as follows.
"It has been argued by the learned Deputy Prosecutor-General, Punjab appearing for the State that the deceased in this case was a vulnerable dependent of the appellant and, thus, by virtue of the law declared by this Court in the cases of Saeed Ahmed v. The State (2015 SCMR 710) and Arshad Mehmood v. The State (2005 SCMR 1524) some part of the onus had shifted to the appellant to explain the circumstances in which his wife had died an unnatural death in his house during the fateful night which part of the onus had not been discharged by the appellant.
We have attended to this aspect of the case with care and have found that when every other piece of evidence relied upon by the prosecution has been found by us to be utterly unreliable then the appellant could not be convicted for the alleged murder simply on the basis of a supposition."
12. As no reliable witness was examined from the house, so the death of the lady deceased remained an unresolved mystery. Had it been so, the scribe would visit the house, but he did not, rather the injury sheet and inquest report of Mst.Gul Samari, were prepared at the place where the dead body of the male deceased was lying. The investigating officer claimed to have prepared the site plan on the pointation of P.W Roshan Pari, but the witness did not support his claim, feeling aggrieved the court was requested to declare her hostile, and she was declared. The prosecution tried its best to convince her presence but despite lengthy cross-examination it failed to reap the harvest. She is the only witness whose presence in the house, the prosecution claims, but she denied her presence at the stated time, rather she admitted her presence in the separate portion of the house. The prosecution needed her support, but she did not.
13. Mst.Roshan Pari was declare hostile though both the parties questioned her regarding the peculiar circumstances of the present case, but the prosecution failed to convince that she ever supported its case. Even otherwise, once a witness is declared hostile, then the witness remains the witness of none and that reliance cannot be placed on the statement of such witness. We went through here statement to explore as to whether she was present at the place of occurrence, but we could not come across any circumstance, which would show her presence and which would show that she made willful attempt to deviate from her earlier recorded statement. As this particular case is hinging upon the eyewitness account and the circumstantial evidence, but when the complainant failed establish his presence on the spot and when the circumstance could not create a well-built chain, then the evidence of the complainant and the circumstances alone cannot be taken into consideration, that too for the conviction of the appellant. The witnesses are not only interested, but they are chance witnesses as well and the complainant failed to convince the purpose of his presence and he failed to convince that the deceased was on his way back from the bazar when he was done to death. True that mere relationship of witnesses would hardly be a circumstance for disbelieving them, but once this court comes to a conclusion that the witnesses were not telling the truth, under no circumstances their evidence can be taken into consideration.
In this regard, reliance is placed on the judgment of the apex Court in case titled "Muhammad Ramzan Vs. Khizar Hayat & another reported as (2024 SCMR 1085) wherein, it has been held as under:- "As to the two eye-witnesses (PW-7 and PW-8), they are also interested witnesses due to their close relationship with the Deceased.
The testimony of an interested witness should be scrutinized with care and caution.
Independent corroborating evidence is essential to test the validity and credibility of the testimonies of interested witnesses. Capital punishment cannot be given on the testimony of an interested witness uncorroborated by any independent evidence. As to the testimony of interested witnesses, the rule is well-established by this Court in the case titled Nazir vs the State. (PLD 1962 SC 269)".
14. The medical evidence is in conflict with the ocular account, had the incident occurred in the mode and manner then the number of injuries would have been different and so its dimension, but as the incident occurred not in the manner as was disclosed, so the medical evidence does not support the stance of the complainant, more particularly, when the doctor noted blackening marks on the injures of one of the deceased. True that medical evidence is confirmatory in nature, but equally true that once the witnesses failed to establish their presence, and once their mala fide, to charge, comes on record, then the conflict between the medical evidence and ocular account will play a major role and this particular case is no exception. We are mindful of the fact that conflict between the two has damaged the prosecution case. As is held in case titled "Najaf Ali shah Vs The State" (2021 SCMR 736), wherein it is held that:- "The same view was reiterated in Abdul Jabbar v. State (2010 SCMR 129) when this court observed that once a single loophole is observed in a case presented by the prosecution, such as conflict in the ocular account and medical evidence or presence of eye-witnesses being doubtful, the benefit of such loophole/lacuna in the prosecution's case automatically goes in favour of an accused."
15. The motive was stated to be the illicit relationship between the two, but neither the doctor could confirm the same, nor any witness from the house came forward to convince regarding that particular aspect of the case. Though the motive is alleged, but the prosecution failed to prove the same and even the investigating officer could not record the statement of any independent witness in that regard. As both the deceased are shown to have died at different places and as they were not found in compromising position, so the motive alleged by the prosecution does not support the stance of the complainant and as the alleged motive is the sole cause of killing, so its failure has damaged the prosecution case and it by itself is sufficient for the acquittal of the appellant. In case titled "Muhammad Ilyas Vs Ishfaq alias Munshi and others" (2022 YLR 1620), it was held that: "It is well settled that once a motive is set up it is imperative for the prosecution to prove the same. On failure whereof adverse inference can be drawn against the prosecution. Reference is made to the cases of Muhammad Khan v. Zakir Hussain PLD 1995 SC 590 and Hakim Ali vs. The State 1971 SCMR 432."
16. True that the appellant was arrested and from his possession a .30 bore pistol was shown recovered and equally true that the collected empties were sent along with the recovered weapon, to the fire arms expert and a report was received in positive, but this piece of evidence in isolation will not credit the prosecution and even the manner in which the accused was arrested and the recovery was made from his possession does not appeal to the judicial mind of this Court. The laboratory report is supportive in nature and it plays a vital role once the prosecution collects independent evidence in its support, but as the prosecution failed to prove its case through independent witnesses, the laboratory report alone cannot be taken into consideration for the conviction of the appellant.
17. The cumulative effect of what has been stated above leads this court nowhere, but to hold that the prosecution failed to bring home guilt against the appellant. The learned trial court failed to appreciate the evidence on file and misdirected itself, both, in law and on facts of the case, which calls for interference. The instant criminal appeal is allowed, the impugned judgment dated 05.06.2023 is set aside and the appellant is acquitted from the charge levelled against him. He be released from jail forthwith, if not required to be detained in any other case.
18. Above are the detailed reasons for our short order of even date.
19. The Murder Reference No.05-M/2023, sent by the learned trial court, for confirmation of death sentence of convict is answered in the negative.