PLJ 2010 Cr.C (Pehsawar) 199 (DB)
[D.I. Khan Bench]
Present: M. Alam Khan and Syed Yahya Zahid Gilani, JJ.
MUKARRAM--Appellant
versus
STATE and another--Respondents
Crl. Appeal No. 20 of 2006, decided on 11.6.2009.
----S. 302(b)--Conviction and sentence--Challenge to--Benefit of doubt--Appeal against--Testimony of eye-witness--Substantive evidence is ocular account of two eye-witness--PW was present on place of occurrence why his name was not mentioned in FIR as eye-witness--Furthermore, his name and place as an eye-witness has also been omitted in site-plan prepared on day of occurrence--These omissions are first dent of doubt in allegation of his having seen occurrence--His statement recorded u/S. 161 Cr.P.C was recorded by police after two days of occurrence renders credibility of a witness seriously suspicious because no plausible explanation exists for his non-examination on day of occurrence--So presence of this witness on spot and having seen occurrence is held to be doubtful and not reliable--Regarding solitary statement of complainant, who claims to be eye-witness of occurrence--In accordance with principles governing safe administration of justice reliance on infirm testimony of a solitary eye-witness for conviction is not safe--Where case is based on a solitary interested witness, prosecution is required to produce independent corroborative direct or circumstantial evidence for his statement--Statement of other eye-witness PW is materially contradicted by medical evidence--Therefore, it is deemed highly unsafe to rely on statement of PW for conviction of appellant--Empties recovered from spot were reported to be not fired from recovered weapon from appellant on pointation of convict-appellant after his arrest--So, recovery becomes irrelevent--Abscondence of convict-appellant which is a piece of evidence but it has only corroborative value--When alleged eye-witnesses are not relied on their testimony, corroborative evidence is also of no use--Prosecution case is not proved beyond doubt--Benefit of doubt to appellant extended to which he is entitled--Appellant acquitted of charges leveled against him--Appeal accepted.
[Pp. 201, 202 & 203] A, B, C, C, D, E, G, H & I
1998 SCMR 570 (A), 1972 SCMR 620 &
PLD 2004
Mr. Sanaullah Khan Gandapur, Advocate for Appellant.
Mr. Sanaullah Khan Shamim, DAG for State.
Mr. Saleem Ullah Khan Ranazai, Advocate for Complainant.
Date of hearing: 5.5.2009
Judgment
Syed Yahya Zahid Gillani, J.--The convict-appellant Mukaram Khan was tried by Mr. Bakhtzada Khan, Additional Sessions Judge-II, D.I.Khan in Sessions Trial No. 52/2000 for having been charged under Sections 302/34 PPC, in case FIR No. 43 dated 29.4.2000 of police station Daraban Kalan, D.I.Khan. He was convicted under Section 302(b) PPC vide judgment dated 27.01.2006 and sentenced to life imprisonment, with a direction to Rs. 1,00,000/- as compensation to the legal heirs of the deceased. Hence, the instant appeal against the conviction as well as Cr.Revision No. 6/2006 of Allah Bakhsh complainant for enhancement of the sentence of the convict-appellant. Both these appeal and revision shall be decided by this common judgment.
2. According to prosecution version Allah Bakhsh complainant (PW-5) and his nephew Ghulam Qasim (deceased) started from their house in the morning. When they reached at Saggu adda at about 07.00 a.m., suddenly the convict-appellant Mukaram, duly armed with Kalashnikov, and the absconding accused Faqir, duly armed with a rille, emerged from the bushes and started firing at Ghulam Qasim who got hit and fell down. When the accused decamped towards western side, he was shifting the injured Ghulam Qasim towards D.I.Khan but he succumbed to the injuries in the way. The occurrence was statedly seen by the complainant and someone other, at threshing floor. Motive for the occurrence was some altercation between the accused and the relatives of complainant party.
3. During trial, the prosecution placed reliance on the statements of two eye-witnesses namely Allah Bakhsh complainant (PW-5) and one Ghulam Sarwar (PW-7), medical evidence, recoveries from the spot in the shape of blood-stained earth, three empties of Kalashnikov, three empties of 303 bore and two rounds of 303 bore, blood-stained garments of the deceased having cut marks, recovery of Kalashnikov at the pointation of convict-appellant, the F.S.L report, motive and abscondence of the convict-appellant for 14 months and the trial Court held the convict-appellant guilty on the basis of aforesaid evidence.
4. Arguments of learned counsel for the parties have been heard and record has been thrashed out with the assistance of learned counsel for the parties.
5. The substantive
evidence in this case of qatl-e-amd is the ocular account of Allah Bakhsh
(PW-5) and Ghulam Sarwar (PW-7). First of all we will deal with the statement
of Ghulam Sarwar (PW-7). The complainant has admitted in his statement that
Ghulam Sarwar (PW-7) is the cousin of Ghulam Qasim deceased and as such he is
supposed to be well known to complainant Allah Bakhsh who is the uncle of
deceased. Ghulam Sarwar stated in his statement that he was at the threshing
floor situated near the place of occurrence and on listening firing he
attracted to the spot and not only saw the incident but accompanied the
deceased then injured towards hospital where the report was lodged by the
complainant in his presence. If he was true in his statement, then it is not
understandable that why his name was not mentioned in the FIR as eye-witness.
Furthermore, his name and place as an eye-witness has also been omitted in the
site-plan prepared on the day of occurrence. These omissions are the first dent
of doubt in the allegation of his having seen the occurrence. Secondly, he
allegedly met with the police in the village on the day of occurrence when the
police arrived after funeral prayer of the deceased, but in spite of all that,
his statement under Section 161 Cr.P.C was recorded by police after two days of
the occurrence when he went to Police Station for the said purpose. Such a
belated statement recorded under Section 161 Cr.P.C renders the credibility of
a witness seriously suspicious because no plausible explanation exists for his
non-examination on the day of occurrence.
Reliance in this
respect is placed
on the ruling
of Honourable
6. Now we are left
with the solitary statement of Allah Bakhsh complainant who claims to be the
eye-witness of occurrence. It was held by the Honourable Apex Court long before
in the case of Mehmood Khan Vs. Ahmad and two others (1972 SCMR 620) that in
accordance with the principles governing safe administration of justice,
reliance on the infirm testimony of a solitary eye-witness for conviction is
not safe. A Division Bench of this Court has later on held in the case of
Quresh Vs. The State (PLD 2004
7. In the instant case although Allah Bakhsh (PW-5) has no direct motive to falsely charge the convict-appellant, but the motive for the occurrence is also shrouded in doubts because in the FIR he referred to some altercation but in the Court statement he expressed lack of knowledge thereof. Be it so, as it may, the intrinsic value of the statement of PW-5 qua the other corroborative evidence shall have to be scrutinized because after all it is a case under capital charge and he is the solitary witness now under scrutiny.
8. He stated in his statement that the assailants suddenly emerged from the bushes and started firing at the deceased. It is normal human conduct that one hides himself when he commits a wrong. So, there was no good reason for the convict-appellant to come out of the existing bushes where he was successfully hidden at the time of arrival of deceased and complainant and he could easily fire from behind the bushes, keeping his identity undisclosed. The statement of this witness is materially contradicted by the medical evidence, according to which, the deceased received one inlet wound from front side and two from back side. This witness has stated in cross-examination that the accused was firing on the victim by chasing and if it was true, then the deceased should not have been hit from front side and if he received first fireshot while facing the accused, then he must have fallen down because the fire received from front side made entrance wound in the abdomen. The statement of this witness becomes unbelievable when it is appreciated with reference to his narration depicted in the site-plan Ex.PB, according to which, the victim at point No. 1 ran towards north-east upto point-A where he fell down due to injuries. The victim's running towards north-east is not believable because the convict-appellant and the absconding accused have been shown towards north-east and north-west from point No. 1 where the deceased was present before firing. In the ordinary course of nature, he was supposed to run towards south, that is to say in opposite direction from the accused-assailants and not towards them as it is shown in the site-plan. This witness was asked relevant questions but he continued on expressing his lack of knowledge. For example, he said that he does not know whether both the accused were hiding behind the bushes in one and the same place or not, he does not know that how much time they remained on the spot after the occurrence, he does not know exactly when he reached the hospital at D.I.Khan and that how much time was spent while coming from spot to D.I.Khan hospital, he does not remember when Namaz-e-Janaza of the deceased was offered and at what time the police came to village, he does not remember the names of the persons present at the nearby bridge at the time of occurrence, etc. If the witness had seen the occurrence and he was present on the spot, the aforementioned are the relevant facts which could not be forgotten because of the importance of the incident. Therefore, it is deemed highly unsafe to rely on the statement of Allah Bakhsh (PW-5) for conviction of the appellant in this case.
9. Although a Kalashnikov was recovered at the pointation of convict-appellant after his arrest but the same was sent to F.S.L for opinion that whether the empties of 7.62 bore recovered from the spot had matching with the gun and the report came that the aforesaid empties were not fired from that gun. So, the recovery becomes irrelevant. The last is abscondence of the convict-appellant which is a piece of evidence but it has only corroborative value. When we have not believed the alleged eye-witnesses for placing reliance on their testimony, the corroborative evidence is also of no use. We, therefore, do not concur with the findings of the trial Court that the prosecution case is proved beyond doubt, and extend benefit of doubt to him to which he is entitled.
10. Consequently, the appeal is accepted, the impugned judgment of conviction and sentence is set-aside and the appellant is acquitted of the charges leveled against him in this case. He is in custody and be released forthwith if not required in any other case.
12. Since the appeal has been accepted, therefore, criminal revision for enhancement has become infructuous which is hereby dismissed.
13. Above are the detailed reasons for our short order of even date.
(Sh.A.S.) Appeal accepted.