' IJAZ-UL-HASSAN KHAN, J.--- Appellants Fida Hussain son of Muambar Khan and Noor Ghulam son of Ghulam Nadir, along with co-accused Muhammad Aleem and Moatnbar khan, all residents of Palai, Malakand Agency were tried jointly by learned Sessions Judge/Zilla Qazi, Malakand at Batkhela under sections 302/324/34, P.P.C. For murder of Muhammad Sayab and attempted murder of Rabnawaz. Per Judgment dated 16-6-2003 appellant Fida Hussain was convicted under section 302, P.P.C. And sentenced to suffer life imprisonment whereas 'appellant Noor Ghulam was convicted under section 324, P.P.C. And sentenced to undergo two years' R.I. He was also convicted and sentenced under section 337-A(i), P.P.C. To Rs,000(sic) as Daman. Benefit of section 382-B, Cr.P.C. Was extended to them. However, co-accused Muhammad Aleem and Moambar Khan were extended benefit of doubt and acquitted of the charge.
2. Feeling aggrieved, Fida Hussain and Noor Ghulam, appellants, have filed instant appeal challenging their conviction and sentences.
3. Pithily narrated facts of the case are, that on the day of occurrence i,e, 15-11-2000 at 0730 hours P.W. Muhammad Israr, complainant followed by his brother Rabnawaz (injured) and nephew Muhammad Sayab (deceased) was on the way to Bus Adda to fetch bus for Batkhela. When they reached near the 'Hujra' of the complainant in Mouza Palai, they noticed their co-villagers Fida Hussain, Muambar, Noor Ghulam and Muhammad Aleem present there with lethal weapons. Fida Hussain aimed his Kalashnikov at the complainant. The complainant started running and took shelter in the door of the house of his neighbour Bahadur. According to the complainant, with the firing of Fida Hussain, Muhammad Sayab was hit and with the firing of Noor Ghulam, Rabnawaz sustained injuries. Explaining the motive, it was disclosed that there was a criminal case between the complainant party and Fida Hussain, on account of which, Fida Hussain was on a look to find an opportunity and take the life of the complainant.
4. Naib Subedar Amir Alam (P.W.8) on receipt of information about the occurrence and arrival of the injured to Basic Health Unit, Palai, reached there and recorded report (Exh.P.W.7/1) at the instance of Muhammad lsrar P.W. He prepared injury sheets of Rabnawaz and Muhammad Sayab and sent the same to doctor for opinion. The doctor referred them to Civil Hospital, Dargai.
Subsequently, Muhammad Sayab succumbed to the injuries and expired in the hospital the same day. Section 324, P.P.C. Was accordingly altered to section 302, P.P.C. The dead body of Muhammad Sayab was handed over to the legal heirs of the deceased. At the pointation of complainant, site- plan (Exh.P.W.1/9) was prepared. Some blood-stained earth and one empty of 7.62 bore were recovered from the place of deceased and sealed into parcel vide recovery memo. In the presence of marginal witnesses. In the meanwhile, blood stained clothes of the deceased were received from the hospital. The same were sealed into a parcel and dispatched to F.S.L., Peshawar for opinion. After completing necessary formalities, challan against the accused was submitted in Court on 5-12-2000.
5. On 15-11-2000 at 8-50 hours Dr. Saadat Anwar, Medical Officer, Civil Hospital, Dargai (P.,W.1) examined Muhammad Sayab deceased and found an entrance wound on the right thigh of the deceased measuring 1-1/2 x 1 c.m. In size. The femur bone of the victim was also found fractured.
6. Dr. Saadat Anwar, on the same date and time examined Rabnawaz injured and found a wound on the lower quardent of the left buttock, causing damage to skin tissues. Exit wound was found on inner side of the left buttock having entry wound on the lower quardent of the outer surface size 5" in length and one inch in depth.
7. The prosecution in order to prove its case produced nine witnesses in all. The accused were examined under section 342, Cr.P.C. They denied the prosecution allegations and stated to have falsely been implicated. Accused Muambar and Muhammad Aleem neither appeared as their own witnesses on Oath as required under section 340(2), Cr.P.C., nor produce defence evidence.
However, accused Noor Ghulam and Fida Hussain produced two witnesses in their defence namely Muhammad Ibrahim (D.W.1) and Rustam Klan (D.W.2). Accused Noor Ghulam also appeared as his own witness on Oath under section 340(2), Cr.P.C.
8. Relying on the ocular testimony furnished by Muhammad Israr and Rabnawaz, the motive, medical evidence and abscondence of the appellants. The learned trial Court convicted and sentenced the appellants as stated above.
9. Mr. Fahim Wali, Advocate representing the appellants has taken us through the entire material on record and attempted to argue that the testimony of two alleged eye-witnesses namely Muhammad Israr and Rabnawaz is not reliable and stands belied by host of circumstances; that motive has not been proved and the medical evidence runs contrary to the prosecution version; that prosecution has not been able to prove its case against the appellants beyond any doubt rather doubts are floating on the surface of record; that witnesses have not been able to sufficiently justify their presence at the spot and even otherwise, there are serious contradictions and variations in their statements; that no independent corroboration was forthcoming though a large number of people were claimed to have seen the occurrence and that the mere fact that there was no apparent, reason for the complainant to have falsely implicated the appellants is not by itself sufficient to maintain conviction and sentences of the appellants.
10. Responding to the above arguments, Pir Liaqat Ali Shah, learned Additional Advocate-General, N.-W.F.P., Peshawar assisted by Mr. Jamal Khattak, Advocate for the complainant supported the impugned judgment and maintained that the material on record having been properly appreciated, the impugned judgment is unexceptionable and hardly requires interference of this Court.
11. We have heard at length the arguments and submissions of learned counsel for the parties in.
The light of the material on record.
12. It is well settled that burden to prove all the ingredients of the charge always lies on the prosecution and it never shifts on to the accused who is entitled to stand on the innocence, assigned to him under the law till it is dislodged. Even, in a case where the defence plea, on its face, appears to be sham the prosecution is not absolved of the duty to prove its case.
13. 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. A 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. 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.
14. The foundation of the prosecution case is the ocular testimony furnished by Muhammad Israr complainant and Rabnawaz P.Ws. Additionally, there is the medical evidence, motive, recoveries and abscondence of the appellants. It is the case of the prosecution that when the complainant Muhammad Israr and his .Companions confronted the accused party, Fida Hussain accused aimed his Kalashnikov at the complainant in order to take his life. The complainant started running and took refuge in the door of the house of one Bahadur. Thereafter, Fida Hussain and Noor Ghulam resorted to firing. With the firing of Fida Hussain, Muhammad Sayab deceased was hit whereas with the firing of Noor Ghulam, Rabnawaz sustained injuries. Having considered all the aspects of the case, we are of the view that the prosecution has failed to establish its case beyond all reasonable doubts and the claim of the complainant Muhammad Israr and his brother Rabnawaz P.Ws. Having seen the incident, is not believable. Having entered into the door/'Dewri' of the house of Bahadur, complainant Muhammad Israr P.W. Was not in a position to witness the occurrence and firing by the accused, culminating in the murder of Muhammad Sayab deceased and injuries to P.W.
Rabnawaz. The statement of Rabnawaz P.W. Is also not worth reliance. No doubt it is correct that he was having stamp of injuries on B his person, therefore, his presence at the spot at the time of occurrence cannot be doubted but it appears to us that he has not told the truth in the Court about the occurrence and as such no implicit reliance can be placed on his statement. Said Ahmed v. Zamured Hussain and 4 others 1981 SCM R 795 and The State v. Muhammad Raja and 3 others PLD 2004 Pesh.
1. It may be pertinently mentioned here that after receipt of injuries, Rabnawaz P.W. Was in full senses but he assigned the task of filing the report to complainant Muhammad Israr. The statement of Rabnawaz P.W. Was also recorded on the following day in his 'Hujra'. These lapses on the part of the prosecution have not been satisfactorily explained. It needs no reiteration that in a case involving capital punishment, the Court will not base conviction of an accused solely on corroboration by some other independent and unimpeachable piece of the testimony of interested witness unless such evidence finds evidence or circumstances in the case as held in Haji Rabnawaz v. Sikandar Zulqarnain and 7 others 1998 SCM R 25.
15. The next piece of evidence is the medical evidence. Medical evidence by itself does not establish either the identity or the complicity of the accused in the crime. It is only when involvement of an accused in the crime is established through other evidence beyond reasonable doubt that further corroboration can be sought with the help of the medical evidence. The medical evidence can at best be used to support the ocular testimony or any other incriminatory evidence of the type and for no other purpose. The ocular testimony in this case having been found not confidence inspiring or with intrinsic worth, the same, therefore, could not be used to support the same.
16. The appellants are alleged to have disappeared from the village and gone into hiding in order to avoid arrest. The abscondence has been denied and it is claimed that they did not abscond and appeared before the police of their own. It is not denied that abscondence alone cannot be a substitute for real evidence and mere abscondence of accused in absence of any other evidence against absconding accused, cannot be considered enough to sustain conviction of accused as held in Farman Ali and others v. The State PLD 1980 SC 201.
17. After deep reappraisal of the evidence, we are convinced that it was an unwitnessed occurrence and the incident had not taken place in the manner as suggested by the prosecution. We entertain serious doubts about the alleged presence and participation of the appellants in the occurrence in question. The learned trial Court has made a subjective approach to the case and has not assessed the prosecution evidence in accordance with the settled principles set up by the superior Courts on the subject which has resulted in 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 no evidence and conviction has been recorded merely on presumptions. Motive advanced by the prosecution has also not been proved satisfactorily. It is well-established principle of law that in a case involving capital punishment, the Court will not base conviction on the sole testimony of a witness whose credibility is not free from doubt, therefore, for safe administration of justice in criminal cases, the Courts look for some independent corroboration, which is lacking in the instant case.
18. Pursuant to above, we are of the opinion that prosecution has failed to prove its case beyond pale of reasonable doubt and the appellants are entitled to a finding of acquittal. While allowing this appeal, we set aside the impugned conviction and sentence and acquit the appellants of the charges. They be set free forthwith from jail if not required in any other case. '
19. Above are the detailed reasons of our short order dated 24-6-2004.