MUHAMMAD HANIF KHAN Versus MUHAMMAD YOUSAF

SHEHRAM SARWAR CH., J.--- Muhammad Hanif Khan and Yateem Khan (appellants) along with their co-accused namely Usman Ghani and Mujahid Khan were tried by the learned Additional Sessions Judge, Mianwali in a private complaint instituted under sections 302, 148 and 149, P.P.C. by Muhammad Yousaf, complainant (PW.5) being dissatisfied with the investigation conducted by police in case FIR No.33 dated 20.09.2009, offence under section 302, P.P.C. registered at Police Station Bangi Khel District Mianwali for the murder of Doran Khan (deceased) father of complainant. Vide judgment dated 05.05.2014 passed by learned trial court, the appellants have been convicted under section 302(b) read with section 34, P.P.C. and sentenced to imprisonment for life (R.I) each. Benefit of section 382-B, Cr.P.C. was awarded to the appellants. Through the same judgment, Usman Ghani and Mujahid Khan, co-accused of the appellants were acquitted of the charge and no. Cr. P.S.L.A. against their acquittal was filed either by the State or the complainant, as conceded by learned Law Officer. Assailing the above conviction and sentence, the appellants have filed the appeal in hand. The complainant had preferred Criminal Revision No. 716 of 2014 for enhancement of sentence and compensation amount imposed upon the appellants but the same was dismissed as withdrawn vide order dated 04.04.2017.

2. Initially the case was got registered by Itwar Shah, Councilor for the murder of Doran Khan (deceased) against unknown accused. Having come to know about the murder of his' father, Muhammad Yousaf moved an application (Ex.PK) before the SHO P.S. Bangi Khel and he was transposed as complainant. Being dissatisfied with the investigation conducted by police, the complainant instituted} the private complaint with the assertion that on 20.09.2009, Doran Khan father of complainant along with Mst. Servise Bibi, Mst. Kausar Bibi and Mst. Nazia Iram left his house and at dopehar wela, reached near village Hassan Shodo Dam, Yateem Khan, Muhammad Hanif Khan, Usman Ghani, Piavi Khan (died during trial) and Mujahid Khan armed with firearms intercepted them. Piavi Khan made a fire which went amiss. Second fire was made by Yateem Khan, which landed on right side below abdomen of Doran Khan, who fell down. Third fire was made by Muhammad Hanif Khan hitting father of complainant on his right arm. Usman Ghani and Mujahid Khan started firing with their respective weapons. On hue and cry of women folk, the accused went away. Motive behind the occurrence as alleged in the private complaint was that since last year, litigation of landed property was going on among father of complainant as well as Piavi Khan and Yateem Khan and due to that revenge, the accused in consultation with each other committed murder of complainant's father.

3. Arguments heard, record perused.

4. Initially, the machinery of law was set into motion on the FIR No.33 of 2009 got lodged by one Itwar Shah Councilor with the averments that the dead-body of Doran Khan (deceased) was found lying on 20.09.2009 near Hassan Shodo Dam. Thereafter Muhammad Yousaf (PW.5) became complainant in this case. He moved an application (Exh.PK) on 25.10.2009 stating therein that the appellants along with their co-accused committed the murder of his father namely Doran Khan (deceased). According to the contents of FIR, the occurrence allegedly took place on 20.09.2009 whereas the complainant moved application (Exh.PK) implicating the appellants and their co-accused on 25,10.2009 with a delay of more than one month without there being any satisfactory explanation. Subsequently, the complainant instituted a private complaint on 03.10.2010 with a delay of about one year after the occurrence almost on,the same facts as mentioned in the application (Exh.PK). Admittedly, Muhammad Yousaf, complainant (PW.5) was not an eye-witness of the occurrence, therefore, the testimony of said PW is excluded from consideration. The ocular account in this case consists of Mst. Service Bibi (PW.7), Mst. Nazia Tram (PW.8) and Mst. Kausar Bibi (PW.9). The presence of all these PWs on the spot at the time of incident is doubtful in nature because they did not receive even a scratch during the incident. They did not make an abortive attempt to save the life of their father/father-in-law from the clutches of appellants and their co-accused. Moreover, all these PWs have not given any plausible reason for their presence on the spot at the time of incident. It has been brought on record through the statement of Mst. Service Bibi (PW.7) that the distance between their house and the place of occurrence was about 2/2-1/2 meters. The above said PWs have no place of business or agricultural land near the place of occurrence. Therefore, I hold that all these PWs were chance witnesses. The testimony of chance witness ordinarily is not accepted unless justifiable reasons are shown to establish his presence at the crime scene at the relevant time. In normal course, the presumption under the law would operate about his absence from the crime spot. The testimony of chance witness may be relied upon, provided some convincing explanations appealing to a prudent mind for his presence on the crime spot are put forth, when the occurrence took place otherwise his testimony would fall within the category of suspect evidence and cannot be accepted without a pinch of salt. Reliance may be placed on the cases reported as "Mst. Shazia Parveen v. The State" (2014 SCMR 1197) and "Muhammad Rafique v. The State" (2014 SCMR 1698). I have further noted that Peer Bakhsh (CW.1) has stated in his cross-examination that "during investigation no material came on the record regarding guilt of accused persons, therefore, I prepared untraced report in the case as nothing was on the file against the accused persons.". In a case of similar nature titled as "Safdar Mehmood and others v. Tanvir Hussain and others" (2019 SCMR 1978), the Hon'ble Supreme Court of Pakistan has been pleased to observe as under:-

"...nothing had been recovered from his custody during the investigation. For whatever its evidentiary value, the investigating agency had declared the appellant innocent in this peculiar backdrop it could not have been concluded by the courts below that the prosecution had succeeded in proving its case against the appellant beyond reasonable doubt."

Moreover, no solid/convincing evidence qua motive part of incident was produced by the prosecution during the trial. As far as medical evidence is concerned, the same may confirm the ocular account with regard to the receipt of injury, locale of injury, kind of weapon used for causing the injury, duration between the injury and the death built???????????????? would not tell the name of the assailants. Reliance is placed on "Ata Muhammad and another v. The State" (1995 SCMR 599). Therefore, I hold that the evidence furnished by the complainant is shaky in nature and cannot be relied upon by maintaining conviction/sentence of the appellants.

5. I have considered all the pros and cons of this case and have come to this irresistible conclusion that the prosecution could not prove its case against the appellants beyond any shadow of doubt. It is, by now well established principle of law that it is the prosecution, which has to prove its case against the accused by standing on its own legs and it cannot take any benefit from the weaknesses of the case of the defence. In the instant case, the prosecution remained failed to discharge its responsibility of proving the case against the appellants. It is also well established that if there is a single circumstance which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances which have created serious doubt about the prosecution story. In this regard, reliance may be' placed on the case law reported as "Muhammad Akram v. The State" (2009 SCMR 230).

6. For the foregoing reasons, the appeal in hand filed by Yateem Khan and Muhammad Hanif Khan (appellants) is allowed, convictions and sentences awarded to them vide judgment dated 05.05.2014 passed by the learned trial Court are set aside and the appellants are acquitted of the charge levelled against them while extending them benefit of doubt. Yateem Khan and Muhammad Hanif Khan, appellants are present in the Court on bail. Their sureties are discharged from the liability of bail bonds.

JK/M-106/L Appeal allowed.