Ijaz-ul-Hassan, J.--Appellant Fazli Wahid (37/38) son of Muhammad Hassan, resident of `Mayar', District Mardan, was tried by Mr. Ghulam Mohyuddin Malik, the then Special Judge/Sessions Judge, Mardan, on a charge under Section 302/34 PPC for having, in furtherance of common intention with his brother Fazal Mabood, co-accused (since acquitted) caused the `Qatl-e-Amd' of his co- villager, Muhammad Salim son of complainant Fida Muhammad PW a young man of 25/26 years of age. Vide judgment dated 24.2.2000, the learned trial Judge, found the appellant guilty of the said charge and thus the appellant was convicted under Section 302 PPC to undergo life imprisonment. He was also directed to pay a sum of Rs, 100,000/- as compensation to the legal heirs of the deceased as required under Section 544-A, Cr.P.C.. or in default thereof to suffer six months S.I. Benefit of Section 382-B, Cr.P.C. was also accorded to the appellant. While questioning the legality of the aforesaid judgment, the appellant has filed' Criminal Appeal No, 61/2000.
Complainant Fida Muhammad PW has also filed Criminal Appeal which has been converted into Criminal Revision No, 147/2002 by this Court, with the prayer that the judgment dated 8.5.1997 passed by Syed Musaddiq Hussain Gilani, the then Special Judge/Sessions Judge, Mardan, whereby co-accused Fazal Mabood, was extended benefit of doubt and acquitted of the charge of murder of Muhammad Salim deceased, be set aside and the co-accused be convicted and sentenced according to law. This judgment will dispose of both the matters together.
2. The occurrence in this case, which has resulted into the murder of Muhammad Salim deceased, took place on the night of 25.8.1995 at about 11.45 a.m. near the house of the deceased in `Mayar'
District Mardan and the matter was reported the same night at 12.00 p.m. at Police Post `Mayar'
District Mardan distant two Kilometers from the site of occurrence. The report was made by complainant Fida Muhammad PW father of the deceased and it was reduced into writing by ASI Salim Taj Khan PW.
3. Prosecution story in brief is that occurrence at about 11.45 p.m. he alongwith his sons Muhammad Salim, Muhammad Tariq and idayatullah son of Rehmatullah, was on his way to the house from the `baithak' of Rehmatullah and when they reached the road side, they were confronted by Fazli Wahid and Fazal Mabood sons of Muhammad Hassan. Having seen the complainant party, they started firing at the deceased. The deceased was hit and died at the spot. After the occurrence the accused decamped from the spot Explaining the motive, it was alleged that a little prior to the occurrence, an altercation has taken place between Fazli Wahid accused and Muhammad Salim deceased on account of which the accused was nursing grudge against the deceased.
4. ASI Salim Taj Khan after recording the report in the shape of `Murasila' (Ex.PA/1) despatched the same to Police Station Sheikh Mattoon where it was incorporated in FIR (Ex.PA). The ASI prepared injury sheet (Ex.PW. 8/1) and inquest report (Ex.PW. 8/2) of the deceased and sent the dead body to the mortuary for post-mortem examination. After completing these to the spot, SHO Muhammad Ishfaq Khan PW, in the meanwhile, reached the spot and took over investigation from ASI Salim Taj Khan PW. He recovered blood stained earth and blood stained pebbles from the spot and sealed the same into parcel vide recovery memo (Ex.PR) in the presence of marginal witnesses. He also recovered and took into possession four empties (Ex.P.1) of 7.62 bore giving smell of freshly discharged powder, lying in a scattered position near the places of the accused and sealed them into a parcel. He also took into possession a spent bullet (Ex.P.2) from the wall of the `baithak' of Rehmatullah. One bulb of 200 watt (Ex.P.3) fixed on the wall of the `baithak' was also taken into possession. Another bulb of 100 watt (Ex.P.4) fixed on the gate of saw machine of one Ali Gohar was also taken into possession. They were sealed into parcel vide recovery memo (Ex.PR/2). Both the bulbs were statedly lit at the time of recovery. The last worn clothes of the deceased consisting of shirt (Ex.P.5), Shalwar (Ex.P.6) and Banyan (Ex.P.7) having corresponding cut marks brought by FC Jamshed PW from the into parcel vide recovery memo (Ex.PR/3) in presence of ASI Salim Taj Khan PW. The SHO then prepared site-plan (Ex.PB) at the pointation of eye-witnesses. He recorded statements of the PWs, sent blood stained articles to the Forensic Science Laboratory Peshawar, placed the laboratory's report on file, arrested co-accused Fazal Mabood, obtained warrants under Section 204, Cr.P.C. against Fazli Wahid accused and handed over the same to DFC Attaur Rehman PW for execution. After completion of investigation he submitted challan against Fazal Mabood (since acquitted) and challan under Section 512 Cr.P.C. against Fazal Wahid accused-appellant.
5. Dr. Fakhruddin (PW.9) who was then posted as Casualty Medical Officer DHQ Hospital Mardan, on 26.8.1995 at 1.10 a.m. conducted the post-mortem examination of the deceased and found the following:- External Examination.
1. One fire-arm entrance wound 2.1/2" x 1/2" on medial aspect of right thigh.
2. One corresponding fire-arm exit wound size 3" x 1" on posterior aspect of right thigh.
3. One fire-arm entry wound size 1/" x 1/2" on lateral aspect of left lower chest.
4. One corresponding fire-arm exit wound Size 3" x 1" left side of sternum near 5th intercostal space.
5. One fire-arm entry wound size 1/2" x 1/2" on left side of nose lower part.
6. One corresponding fire-arm exit wound size 1" x 1" on right ear causing damage to soft tissue of right ear.
7. One fire-arm entry wound size 1/2" x 1/2" on back of left buttock.
8. One fire-arm entrance wound size 1/2" x 1/4" on back of abdomen at the left lumber area.
Internal Examination.
Crinium and spinal card, skull, brain and its membrance were injured.
Thorax: Thorasic, wall, ribs, cartilages, pleurae, larynx and traches, left lung, pericardium an heart and blood vessels were injured.
Abdomen: abdominal walls, peritoneum, mouth, disphram, panchreas, small and large intestines, spleen, kidneys were injured. Stomach healthy containing semidigested food, muscles, cartilages, skull and right tibia were fractured.
In the opinion of the doctor death was caused on account of fire-arm injuries to vital organs like spleen and main blood vessels leading to severe haemorrhage and shock. Probable time between injuries and death was found instantaneous whereas time between death and post-mortem about one and a half hour.
6. During the trial, prosecution produced of the incident. They also deposed about the motive. Dr. Fakhruddin PW provided the medical evidence and opined that death of the victim was caused on account of fire-arm injuries to vital organs like spleen and main blood vessels. SHO Muhammad Ishfaq Khan and ASI Salim Taj Khan PWs stated about various steps taken by them during investigation of the case. The remaining evidence produced by the prosecution was more or less .of formal nature.
7. The appellant was called upon to record his statement under Section 342 Cr.P.C. by the learned trial Court after the prosecution closed its case. The entire evidence recorded at the trial was put to him in his statement under Section 342 Cr.P.C. wherein he repudiated and controverted all the allegation of facts levelled against him by the prosecution and professed his innocence. He also denied having remained fugitive from the law and stated that at the relevant time he was in Karachi to earn livelihood and that on coming to know about the charge, he voluntarily appeared before the police.
8. Believing the ocular testimony of complainant Fida Muhammad and his nephew Hidayatullah PWs, promptly lodged report, medical evidence, motive, recoveries from the spot and noticeable abscondence of the appellant, the learned trial Judge came to the conclusion that prosecution has succeeded to establish its case beyond shadow of reasonable doubt and he convicted and sentenced the appellant, as noted above.
9. Mr. Asadullah Khan Chamkani, Advocate for the appellant, assailed the impugned judgment on a variety of grounds and reiterated that the learned trial Judge has not properly appreciated the evidence on record and arrived at a wrong conclusion while convicting the appellant. He asserted that the learned trial Court has acquitted co-accused Fazal Mabood though charged for justifiable role but the same evidence has been accepted against the appellant without any corroboration which is bad in law. He added that the occurrence is alleged to have taken place at odd hours of the night; that the existence of electric bulbs shedding light on the spot has not been mentioned in the F.I.R. that PWs Fida Muhammad and Hidayatullah were not present at the spot and their claim of having seen the incident, stands belied by a host of circumstances; that motive has not been proved; that the medical evidence is in conflict with the ocular account of the incident; that dishonest improvements have been made during the trial to bring it in conformity with the ocular account and that the appellant did not abscond and even otherwise absconcion alone is not considered sufficient to base conviction of an accused person in absence of strong corroborative evidence. To support the pleas, reliance has been placed on Pasham Khan and 7 others vs. The State (PLD 1984 Peshawar 156), Zaley Mir alias Zaley State (PLD 1999 Cr.C. Peshawar 1022) and Muhammad Aslam vs. State (PLD 1998 Cr.C. Lahore 328).
10.As against this, Malik Ahmad Jan, learned Deputy Advocate General assisted by Mr. Muhammad Salim Khan, Advocate for the complainant, supported the impugned judgment of conviction and maintained that the prosecution has abundantly proved its case through evidence of high order and quality against the appellant that the occurrence has been witnessed by two eye-witnesses and their testimony is supported by the medical evidence and other circumstantial evidence and that it is a case of promptly lodged F.I.R. containing the names of the eye-witnesses, names of the accused, weapon of offence and the part played by them during the occurrence. The witnesses though related to the deceased do not appear to be inimically disposed towards the accused so as to suspect their veracity. They do not fall within the category of interested witnesses.
Their presence at the spot of occurrence has been adequately accounted for and their evidence has been rightly believed. During lengthy, cross examination the intrinsic value of both the ocular witnesses which is otherwise in conformity with the facts and circumstances of the case and consistent with medical evidence, could not be shattered. Adverting to the question of identification, the learned counsel contended that both the parties are closely related and their houses are contiguous to each other as such the question of mistaken identity would not arise.
11. We have seriously attended to the arguments and submissions, of learned counsel for the parties and have reviewed the entire evidence produced by the prosecution, the statement of appellant recorded under Section 342 Cr.P.C. and circumstances appearing in the case carefully.
12. For the safe administration of justice it is essential requirement of the Court to satisfy itself whether the eye-witnesses are natural and their presence on the spot could reasonably be believed and that whether their testimony is free from any kind of intrinsic improbabilities and in case of an interested witness whether any independent corroboration is forthcoming. It is settled law that the testimony of an interested eye-witnesses cannot outrightly be rejected and in circumstances it can be made basis of conviction provided it receives corroboration through other circumstantial evidence.
13. The prosecution case primarily rests on the eye-witness account of the incident furnished by PW Fida Muhammad, maker of the report and his sister's son PW Hidayatullah. Additionally, there is medical evidence, motive, recoveries from the spot and abscondence of the appellant from 25.8.1995 to 16.6.1998.
14. Fida Muhammad complainant stated at the trial that on the night of occurrence he (complainant) accompanied by his sons Muhammad Salim (deceased), Muhammad Tariq and PW Hidayatullah, left the `baithak' of Rehmatullah near the complainant's house and started going to the house and when they reached Mayar Bazar at about 11.45 p.m. they were confronted by Fazal Mabood (acquitted co-accused) and appellant Fazli Wahid duly armed with the Kalashniko The deceased was a little ahead of the complainant and his son Muhammad Tariq. Having seen the complainant party the accused started firing as a result of which Muhammad Salim was hit, fell on the ground and died there and then. Thereafter the accused made good their escape. The accused were identified in the light of bulbs, which were lit near the spot.
15. PW Hidayatullah also supported the prosecution version and claimed having accompanied the complainant and deceased at the time of occurrence. He also implicated the accused for the murder of Muhammad Salim deceased by firing with Kalashnikos.
16. Having considered the arguments of learned counsel for the parties with reference to the material on file we are confident that the claim of complainant Fida Muhammad and Hidayatullah PWs having accompanied the deceased at the time of offence and seen the accused firing at the deceased, stands belied by a host of circumstances and they were not present at the spot at the material time and had not seen the incident resulting into the murder of Muhammad Salim deceased. Both these witnesses appear to have made improvements in order to lend strength to the prosecution story. It may be noticed here that in the report (Ex.PA/1) recorded in the shape of Murasila' at police post Mayar at the instance of Fida Muhammad PW the weapons of offence allegedly carried and used by the accused in the commission of crime, were not specified in the F.I.R. and similarly the purpose of the complainant party for meeting in the `baithak' of Rehmatullah was also not given but during the trial 'an improvement was made and it was mentioned that the accused were duly armed with Kalashniko which they used in the commission of crime and that the complainant party had assembled in the baithak' of Rehmatullah in order to effect a compromise with Fazli Wahid appellant with whom the deceased had a brawl on the evening of the night of occurrence. Again, the accused are claimed to have been identified in the light of electric bulbs statedly shedding light at the time of occurrence. Surprisingly the existence of bulbs has not been mentioned in the report. This improvement appears to have been made order to exclude the chances of mistaken identity. The medical evidence and site-plan (Ex.PB) prepared in this case also falsify the claim of the Complainant having seen the occurrence. The sizes of wounds found on the person of the deceased during post-mortem examination would clearly indicate that weapons of different calibers were used in the commission of crime. Adverting to recoveries we find that four empties of 7.62 bore were recovered from Point No, 7 at a distance of nine paces from the place of the appellant whereas six entrance wounds were found on the person of the deceased. Admittedly, the empties have not been sent to the fire-arm expect o ascertain as to whether the same had been fired from one or more weapons. This lapse on the part of the prosecution is fatal and causes dent in he prosecution case. By now it is well settled that unless substantive or direct evidence is available, conviction cannot be based on any other type of evidence howsoever, convincing it may be. (1991 SCMR 643 and 1997 SCMR 290). Keeping all these facts and circumstances into consideration, we are convinced that the occurrence had not taken place as alleged. It appears that the deceased was done to death by some unknown assailant/assailants and the appellant and his brother (acquitted co-accused) were charged on mere suspicion. It is not denied that in absence of any other corroborative evidence, the evidence of eye-witnesses, even if found convincing would not be sufficient by itself to warrant the conviction of the accused on a charge of murder. The prosecution is duty bound to prove its case to the hilt by producing cogent and unimpeachable evidence which is lacking in the present case.
The evidence led by the prosecution is highly discrepant and no implicit reliance can be placed on it.
17. The abscondence in this case, no doubt, is for a very long time or about three years but abscondence alone cannot be a substitute for real evidence. Abscondence will be taken as corroborative piece of evidence only when there is convincing and unchallenged evidence led by the prosecution: (PLD 1964 Supreme Court 26, PLD 1990 Supreme Court 201 and 1986 SCMR 823).
18. For the reasons recorded above, Criminal Appeal No, 61/2000 filed by appellant Fazal Wahid is accepted and conviction and sentences recorded against him by the learned trial Judge vide the impugned judgment dated 24.2.2000 are set aside and he is acquitted of the charge. He shall be released forthwith, if not required in any other case.
19. We now take up Criminal Revision No, 147/2002 filed by complainant Fida Muhammad challenging the acquittal of Fazal Mabood respondent through judgment dated 8.5.1997 announced by Syed Musaddiq Hussain Gilani, the then Sessions Judge/Special Judge Mardan. The learned counsel for the complainant contended with force that the acquittal of the respondent in the above case, was on wrong premises as sufficient evidence was led by the prosecution to connect the respondent with the murder of Muhammad Salim deceased. The submissions are devoid of force. Acquittal of respondent does not suffer from any illegality so as to call for our interference with the impugned judgment of acquittal. The overall assessment of the evidence made by the learned Sessions Judge and the finding arrived at by him apparently do not call for an interference by this Court and as such it cannot be said that a grave miscarriage of justice has accrued and/or that the trial Court has exercised jurisdiction illegally or with material irregularity.
The Criminal Revision having been found destitute of substance, is dismissed and the impugned judgment of acquittal is maintained.