' IJAZ-UL-HASSAN KHAN, J.-Appellant Fazlur Rehman son of Fida Muhammad, was tried by learned Additional Sessions Judge,Charsadda on the allegation of having, on 24-9-2001 at 2300 hours in Chowk Hassan Khel District Charsadda, in furtherance of the common intention with absconding co-accused Tariq son of Kashmir, committed the murder of his co-villager Arifullah son of Nadir Khan by firing and also attempted at the life of Muhammad Shoaib complainant. At the conclusion of the trial, vide judgment dated 19-5-2003 the appellant having been found guilty was convicted under section 302(b)/34 P.P.C. And sentenced to death. He was also held liable to pay compensation amount of Rs.100,000 to the legal heirs of the deceased within the contemplation of section 544-A, Cr.P.C. Or in default to undergo six months S.I. He was also convicted under section 324/34 P.P.C. And sentenced to suffer five years R.I. And fine of Rs.5000 or in lieu thereof to further undergo two months S.I. Benefit of section 382-B, Cr.P.C. Was also extended to the appellant.
2. The appellant has challenged his conviction and sentence through Criminal Appeal No.285 of 2003 whereas the learned trial Judge has sent a Murder Reference bearing No.16 of 2003 under section 374, Cr.P.C. For confirmation of sentence of death awarded to the appellant. The murder reference and criminal appeal arising out of the same judgment, shall be disposed of through this single judgment.
3. Fazli Karim Khan (P.W.10) the then S.H.O. Police Station, Prang was on 'gasht' on the night of occurrence i.e. 24-9-2001 when he received an information through wireless regarding the instant murder and firing in village Hassan Khel. Pursuant to this information he proceeded to the spot and found the dead body of Arifullah lying there. Complainant Mohammad Shoaib (P.W.9) brother of the deceased made the report alleging that on the said night the complainant alongwith his brother was on the way to the house. When they reached Hassan Khel Chowk, they found Fazlur Rehman (appellant) and Tariq (absconding co-accused) armed with Kalashnikovs standing in the way. On seeing the complainant and his brother, they started firing. Arifullah was hit and died there and then. The complainant escaped unhurt. In addition to the complainant a large number of inhabitants of the locality witnessed the occurrence. Explaining the motive the complainant stated that Tariq absconding co-accused, a teacher in Babra Primary School, had beaten Shah Khalid son of the complainant a student of the same school on account of which a quarrel had taken place between the accused and the complainant party which resulted into the present turmoil.
4. S.H.O. Fazli Karim Khan P.W. Recorded the report (Exh.P.A.1) and dispatched the same to Police Station Prang where its contents were correctly incorporated into F.I.R. (Exh.P.A.) by A.S.-I. Taj Mir Khan (P.W.1). He then prepared injury sheet (Exh.P.W.10/1) and inquest report (Exh.P.W.10/2) of the deceased and sent the dead body to themortuary for post-mortem examination under the care of FC Inayatur Rehman (P.W.3). He recovered blood-stained earth and five empties of 7.62 bore from the spot and sealed the same into parcels vide recovery memos (Exh.P.W.7/1 and Exh. P.W.7/2). The witness in hand also took into possession a bulb (Exh.P.6.) of 60 Watt which was lit at the time of occurrence vide recovery memo EAli. P.W. 7/3. In the meanwhile, FC Inayatur Rehman P.W. Returned from the hospital and handed over the last-worn clothes of the deceased (shirt Exh. P.1.), Shalwar (Exh.P.2.) and Banyan (Exh.P.3) to the Investigating Officer. He also handed him a spent bullet (P.4).
All these articles were sealed into different parcels vide recovery memo (Exh. P.W.2/I) and dispatched to Forensic Science Laboratory, Peshawar for opinion and report. The reports are in positive. The witness then obtained proclamation notices against the accused and handed over the same to the DFC concerned for service. He recorded statements of prosecution witnesses and after completion of investigation, submitted challan against the accused in Court under section 512 Cr. P. C .
5. The appellant was arrested on 27-5-2002 when his ad interim bail was not confirmed by the Court of Session.
6., The prosecution in order to prove its case produced ten witnesses in all. Complainant Muhammad Shoaib (P.W.9) rendered eyewitness account of the incident and charged the appellant and absconding co-accused for the crime in question.
7. Dr. Najmuddin (P.W.4), Medical Officer, DHQ Hospital, Charsadda on 25-9-2001 at 6.30 a.m.
Conducted the autopsy on the dead body of Arifullah deceased and found the following:--
1. Two entry wounds on the interior part of chest about 2.3 cm and exit wound 4-5 cm in the left lumber region.
2. One entry wound in the posterior side of right ear and exit wound on the left cheek (Entry wound of 2-3 cm and exit was 4-5 cm).
' An entry wound on the right leg on the right trochanteric and an exit on the same side posteriorly on the buttock. (Entry 2-3 cm and exit 4-5 cm). R.M. Was developed.
' Internal Examination.
' Thorax:--Walls, ribs, cartilages, pleurae, right and left lungs, pericardium and heart and blood vessels injured.
' Abdomen:--Walls, peritoneum, mouth pharynx and esophagus, diaphragm, small intestine, large intestine, spleen, kidney left were damaged.
' Stomach containing semi-solid digested material.
' In the opinion of the Medical Officer death occurred due to injury and bleeding of vital organs.
Probable time between injuries and death was found instantaneous whereas between death and post-mortem examination 8 to 9 hours.
8. The accused in his statement recorded under section 342, Cr.P.C. Denied the prosecution allegations and claimed to have been charged falsely on mere suspicion. He also stated that he did not abscond and on learning about the false charge voluntarily appeared before the police. In answer to a question as to why the prosecution witnesses have deposed against him, he stated that deceased was an addict to heroin and used to tease the wife of complainant for which she had lodged report (Exh. DA). The wife of the complainant was also locked in litigation with her brother-in-law Zahirullah over ownership of a residential house. The accused did not appear in his defence as envisaged by section 340(2) Cr.P.C. Nor produced any evidence in defence.
9. The learned trial Court after appraisal of evidence available on record vide judgment dated 19- 5-2003 convicted and sentenced the appellant as narrated in the earlier part of this judgment.
10. Barrister Zahurul Hach learned counsel for the appellant after having read the entire prosecution evidence, statement of accused and other relevant material available on the record submitted that the prosecution has failed to prove that the appellant had committed the murder of Arifullah or attempted murder of complainant Mohammad Shoaib; that it was an unwitnessed occurrence which took place during the night; that the bulbs were introduced subsequently in order to lend support to prosecution story; that prosecution witnesses were not natural and chance witnesses and physical presence of complainant on the spot has not been proved; that ocular account has not been corroborated for any independent source; that there is clear contradiction in the ocular account and the medical evidence; that the alleged motive has not been proved; that case has been registered after preliminary investigation; that empties alleged to have been recovered from the spot have not been sent to Fire-arms Expert to ascertain the fact whether the same had been fired from one weapon or different weapons; that abscondence alone is not sufficient to base conviction and that the case against the appellant is totally of no evidence and the learned trial Judge failed to apply his judicial mind to the facts of the case and as such the impugned judgment is liable to be set aside.
11. While opposing the aforesaid submissions of the learned counsel for the appellant and supporting the impugned conclusion of the learned trial Judge wholeheartedly, Mr. Jamshed Khan, Advocate, learned StateCounsel assisted by Mr. Saadullah Khan, Advocate for the complainant contended that appellant has been rightly awarded the impugned conviction and sentence; that the prosecution had fully established its case beyond any reasonable doubt and, the impugned conviction and sentences awarded to him is the result of proper appreciation of evidence brought on record which needs interference. The defence in spite of lengthy cross-examination failed to assail credibility of the complainant or extract anything which may render his presence doubtful. It is the quality of evidence and not quantity which is to be considered. The conviction can be based on evidence of a solitary witness and mere relationship with the deceased is not sufficient to discard his testimony if he is otherwise found to be trustworthy. Enmity must be of such a degree which is sufficient to motivate a culprit to commit murder, which is lacking in this case. To augument the contentions, he placed reliance on Allah Bakhsh v. Shammi and others (PLD 1980 SC 225), Muhammad Siddique and three others v. The State (1971 SCM R 659) and Nazir v. State (PLD 1962 SC 269).
12. The prosecution primarily is supposed to establish guilt against the accused beyond shadow of reasonable doubt by bringing trustworthy, convincing and coherent evidence for the purpose of awarding conviction. To convict a person on capital charge evidence should be of very high quality and good standard. In a murder case where question of life and death is involved qualms of conscience require a very close scrutiny of the evidence. A careful analysis of the evidence available on record Olows that the same is not worth reliance for upholding the conviction of the appellant. There is no gainsaying that the evidence furnished by interested witness ordinarily cannot be discarded merely for the reason that they had relationship with the deceased. However, for safe administration of justice it becomes the duty of the Court to look forward for corroboration of such evidence from independent sources with a view to explore truth for the purpose of reaching at a just conclusion. Relationship and enmity merely put the Court on guard to evaluate the evidence cautiously. The prosecution case essentially rests on the solitary statement of Mohammad Shoaib (P.W.9) maker of the report. This witness is real brother of the deceased and claims to have accompanied the deceased and seen the incident. After hearing the arguments of learned counsel for the parties and scanning the statement of P.W. Mohammad Shoaib, we entertain serious doubts about the alleged presence and participation of the appellant in the occurrence in question. We do not reject the evidence of the complainant because of his relationship with the deceased but we doubt if he was present at the time of incident. The complainant stated at the trial that he was accompanying his deceased brother at the crucial time and was at a distance of one pace from him when the appellant and a absconding co- accused resorted to firing with Kalshnikovs resulting into the murder of the victim. However, the complainant escaped unhurt. Keeping in view the distance between the victim and the complainant, we fail to understand as to how the complainant who was also at the mercy of the assailants, escaped the attack and succeeded to save his life. This leads to an inference that he was not present at the spot and had he been present at the spot, should not be spared by the assailants to create evidence against them. Claim of the complainant in the circumstances appears to be not only false but looks unnatural. It has come in evidence that at the time of incident the complainant and his deceased brother were empty-handed. In view of the enmity and between the complainant party on the one hand and the accused on the other, there was no occasion for the complainant and his deceased brother to go unarmed at the dead of night. The possibility of the complainant having reached the venue of occurrence on hearing the news of the murder of his brother cannot be excluded in the circumstances of the case. The medical evidence also negates the claim of the complainant having witnessed the occurrence C when seen in the context of locale and dimension of injuries found on the person of the deceased. It needs no reiteration that it is the quality and credibility of evidence and not quantity which is to be considered and the D conviction can be based on evidence of a solitary witness provided it rings true and inspires-confidence but in the present circumstances no weight can be given to the evidence of the complainant for its inherent defects. We also find force in the submission of learned counsel for the appellant that the case against the appellant has been registered after' preliminary investigation. The complainant admitted in his cross-examination that the Investigating Officer on arrival to the spot, inspected the wounds of the deceased, prepared post- mortem documents and site-plan, dispatched the dead body to the mortuary and thereafter recorded the report. By that time his other two brothers namely Ruhulla and Attaullah P.Ws. Had also reached the spot and the Investigating Officer recovered bulbs, blood-stained earth and empties from the spot in their presence. No sanctity can be attached to such an F.I.R. Having been lodged after preliminary investigation and thus mentioning of the names of the accused and the roles attributed to them cannot be taken into account as a first hand information and gospel truth.
It may be noticed E here that large number of co-villagers of the complainant are stated to have attracted to the spot and seen the occurrence but no independent and disinterested witness from the locality has been produced at the trial in support of the prosecution version.
13. The motive advanCed by the prosecution is that Tariq absconding co-accused, teacher in Sabra Primary School, Charsadda had given beating to Shah Khalid,' son of the complainant, a student of the same school some time prior to the occurrence, on account of which both the parties were nursing grudge against each other. The motive against the appellant has not been satisfactorily proved. It was relatable to Tariq absconding co-accused. The appellant had no reason to take the life of the deceased and quench his thirst.
14. During the course of investigation five empties of 7.62 bore (freshly discharged) have been recovered from the spot. The empties have not been sent to Fire-arms Expert to ascertain the fact whether the same had been fired from one weapon or different weapons. The Investigating Officer had furnished no explanation for the omission on his part to send the empties to the expert for opinion and report. This lapse on the part of the prosecution is highly fatal.
15. The abscondence in this case, no doubt is for a period of about eight months but abscondence alone, as held by the superior Courts, cannot be a substitute for real evidence. No conviction can be recorded on the mere ground of absconsion as held by this Court in Wisal Qamar v. Noor Dad Khan and another (2000 PCr.LJ 2038 Peshawar) wherein it was observed:- - "Appreciation of evidence---Abscondence, of accused---Effect--- Abscondence of accused by itself did not establish the guilt of accused unless it was corroborated by other cogent evidence--- Where prosecution had failed to bring home guilt through ocular evidence alleged abscondence was of no use in the circumstances."
16 The question of identification has assumed significance in this case. The occurrence in question is alleged to have taken place on the night of 24-9-2001 at 2300 hours. The F.I.R. Is silent regarding recovery of bulbs from the spot. The bulbs have been introduced subsequently in order to lend support to the prosecution version.
17. After deep reappraisal of the evidence we are convinced that it was an unwitnessed occurrence and prosecution has failed to prove its case against the appellant beyond any shadow of doubt.
We entertain serious doubts about the alleged presence and participation of the appellant in the occurrence in question. The statement made by the complainant to the extent of the present appellant had failed to receive any material corroboration or support from any independent source. We have arrived at a definite conclusion that the role attributed by the prosecution to the appellant could well be a result of an exaggeration on the part of the complainant party. The learned trial Court has made a subjective approach to the case and has not assessed the prosecution evidence in accordance with the established principles set up by the superior Courts on the subject which has resulted in grave miscarriage of justice. The impugned judgment is the result of misreading and non- reading of evidence on record. The present case is totally a case of misidentification and conviction has been recorded merely on presumptions. Thus without prejudice to the prosecution case against Tariq, absconding co-accused, this appeal is hereby allowed and conviction and sentences recorded by the learned trial Court are set aside .And the appellant is acquitted of the charges. The death sentence awarded to the appellant is not confirmed. Murder Reference is answered in negative. The appellant shall be released forthwith if not required to be detained in any other case.
18. Above are the detailed reasons for our short order dated 23-10-2003.