'Succinctly stated the prosecution case as spelt out in the F.I.R. Is that on 30-6-1998 at 3 p.m. Mir Moinullah appellant who was annoyed with his deceased father Shahzada Khan over the apportionment of his property amongst his sons after altercating with him shot him dead with fire- arm and so did his son Ihsanullah, absconding co-accused by firing at deceased Mehboob Ali Khan, a step-brother of his father. Mst. Sabir Jana, being the eye-witness of the incident reported the matter and pursuant thereto a case under section 302/34, P.P.C. Was registered vide F.I.R. No,97, dated 30-6-1998 in the Police StationKakki, Bannu.
2. The Investigating Officer after registering the case and preparing the injury-sheets and the inquest reports of the deceased and dispatching them to the hospital for post-mortem examination, proceeded to the spot, prepared the site plan, secured blood-stained earth and blood-stained clothes of the deceased so sent from the hospital, examined the eye witnesses and sent the incriminating material to the F.S.L. And on receipt of its report placed it on the file.
3. Since the appellant became fugitive from law, the Investigating Officer after fulfilling the procedural formalities necessary for declaring him absconder, procured a warrant from the Court of competent jurisdiction in terms of section 204 of the Cr.P.C. And after arrest of the appellant forwarded him to the Court of the learned Judge Special Court for trial.
4. The learned Judge, Special Court on conclusion of trial sentenced the appellant to death under section 302(b) of the P.P.C. For the murder of Shahzada Khan and to pay a compensation of Rs,1,00,000 (Rs, one lac) to the legal heirs of the deceased in terms of section 544-A, Cr.P.C. Vide his judgment, dated 13-1-2003. Hence this appeal.
5. The learned counsel appearing on behalf of the appellant contended that the version narrated by the sole eye-witness so-called in her statement recorded in the Court is discrepant with the one set forth in the F.I.R. As according to the former the occurrence took place outside the flour machine while according to the latter it took place inside the machine, therefore, it is not safe to rely upon such testimony in a case involving capital punishment; that the venue of the occurrence has been shifted with a design so that it be made visible from the points where the witnesses were allegedly standing at the time of occurrence; that the presence of Mst. Sabir Jana at the scene of occurrence is highly doubtful as she could not plausibly account for her presence in the vicinity, moreso when no sickle or for that matter the grass out therewith by her has not been produced; that Abdul Sattar being the machine operator was the only natural witness to depose about the incident or the circumstances preceding or subsequent thereto, but strangely enough he was abandoned as being unnecessary; that non-production of Mst. Mushtari who is mentioned to have witnessed the occurrence according to the F.I.R. Is another factor casting doubt on the prosecution version; that the statement of Mst. Sabir Jana, wherein she admitted that she was alone present to witness the incident would further give lie to the original version as described in the F.I.R. And that when the occurrence admittedly took place according to the statement of the Investigating Officer inside the flour machine, the entire statement of Mst. Sabir Jana being replete with contradictions, improvements, additions and afterthoughts is not worthy of reliance, therefore, the learned trial Court erred by placing reliance on such quality and quantity of evidence.
6. The learned Dy.A.-G. Appearing on behalf of the State assisted by the learned counsel for the complainant contended that minor discrepancies occurring in the statements of the witnesses cannot be of any consequence when the case against the appellant has been proved by consistent and confidence-inspiring evidence. The learned counsel by placing reliance on the case of Mehboob Ali v. The State 2000 SCM R 152 contended that implicit reliance upon the testimony of a solitary witness whose presence is otherwise established on the record cannot be discarded on the ground of existence of enmity between them if it is unimpeachable and confidence-inspiring.
The learned counsel by placing reliance on the case of Walayat v. The State 2002 SCM R 53 contended that mere discrepancies in evidence will not render the proecution version unworthy of trust and belief especially when the principle of falsus in uno and falsus in omni bus is no more tenable in the criminal jurisprudence of this country. The learned counsel by referring to the case of Saeed Akhtar and others v. The State 2000 SCM R 383 contended that prosecution need not examine every witness cited as such in the F.I.R., therefore, no adverse inference can be drawn against it if a witness not necessary in the wisdom of the prosecution is not produced. The learned counsel by winding up his arguments contended that motive coupled with two years unexplained abscondence of the appellant will inescapably connect him with the crime, therefore, the impugned judgment being free from any infirmity has to be maintained.
7. We have perused the evidence on the record with the able assistance of the learned counsel for the parties, judgments cited at the bar and seriously considered their submissions.
8. A perusal of the F.I.R. Would unmistakably indicate that the occurrence took place inside the flour machine. Even deceased Mehboob Ali Khan has been mentioned to have been fired at inside the machine. According to the statement of the Investigating Officer, the room where the flour machine is installed is surrounded by a wall of man's height. How could the P.Ws. Who are alleged to have witnessed the occurrence be present at the gate of Sher Bahadur, has not been plausibly explained. Though the P.W. Stated that she came out of her house alongwith a sickle and Chaddar for cutting grass but surprisingly enough neither sickle nor Chaddar was produced by her to justify her presence outside. The story of coming out of her house for the purpose of cutting grass also appears to be an afterthought firstly because no such thing was mentioned in the F.I.R. And secondly because there was no occasion for cutting grass at such an inopportune time in the afternoon that too in the month of June when it has not been stated by the P.W. That she was keeping some buffalo or bullocks in her house. When according to the F.I.R. The occurrence took place inside the flour machine, the question of altercation and its being overheard by the said P.W.
Is also a remote possibility when the distance between points Nos.4 and 3 is more than 52 paces, even if it is assumed for the sake of arguments that she came out of her house and was proceeding to some field for doing the needful. Abdul Sattar abandoned ,P.W. Being machine operator in the flour machine could have been the most natural witness about the incident but he was not produced in the Court perhaps because he never wanted to give statement according to the wishes of the complainant. Non-production of Mst. Mushtari, will also cast doubt on the truth of the prosecution version when she too was abandoned without any reasonable justification notwithstanding the fact that her presence near or around the flour machine was not only unnatural but unbelievable as well. What happened inside the machine, whether the appellant was responsible for enacting this tragedy cannot be determined on the basis of this quality or quantity of evidence particularly when there is strong motive on the part of the complainant to falsely implicate the appellant as she and her sons alone could be beneficiaries after his elimination from the scene.
9. No doubt motive has not been seriously disputed by the defence but it being double-edged sword, cuts both way and as such could equally be a reason for the commission of the crime as well as false implication.
10. A careful assessm ent and evaluation of the evidence on the record would reveal that the charge has been thrown at the door steps of the appellant at random. When the narration given in the Court is radically rather drastically different from the one given in the F.I.R., it will not be safe in our view to maintain conviction muchless a death sentence.
11. The argument that the prosecution is not bound to examine every witness cited as such is no doubt, otherwise, a good argument but where a witness whose presence on the scene of occurrence is quite natural has been abandoned without any reason and instead a witness is examined whose presence is not only unnatural but highly doubtful, it will certainly in the circumstances of the case, give rise to the presumption that such witness if produced would have deposed against the prosecution. The case of Saeed Akhtar and others (supra) will be therefore, not applicable to the instant case.
12. There is no quarrel with the proposition that abscondence of the accused more than often does not furnish corroborative evidence but as we have already held that the presence of the P.W. On the scene of occurrence is unnatural and highly doubtful, we do not think that abscondence of the appellant can under any canons of criminal jurisprudence make her presence natural and above board. The judgments cited at the bar by the learned counsel for the complainant, when considered in the light of the foregoing discussion, we are afraid, they being distinguishable in their facts and features have no relevance to the instant case.
13. The charge in our view, against the appellant has not been proved beyond any shadow of reasonable doubt.
14. For the reasons discussed above, this appeal is allowed, the conviction and sentence awarded to the appellant are set aside and he be released forthwith, if not required in any other case. The murder reference answered in the negative. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.