FAZAL MUHAMMAD Versus ZIA UL HAQ
ASSADULLAH KHAN CHAMKANI, J.--- This criminal appeal calls in question the legality and propriety of judgment dated 24.11.2011, rendered by learned Additional Sessions Judge Lahor, District Swabi, whereby he convicted appellant Fazal Muhammad under section 302(b), P.P.C. for committing the murder of Rahat Ullah deceased and sentenced him to undergo imprisonment for life as Ta'azir and to pay Rs.1,00,000/-, as compensation to LRs of deceased in terms of section 544-A, Cr.P.C. or in default thereof, to undergo 06 months S.I. further. He was further convicted under section 324, P.P.C. for attempting at the lives of complainant Zai ul Haq and PW Aman Ullah and sentenced to undergo rigorous imprisonment for seven years on two counts and to pay a fine of Rs.20,000/- on each count or in default thereof to undergo 03 months S.I. further on each count. Benefit of section 382-B, Cr.P.C. was extended to him.
2. The prosecution case as unfolded in First Information Report is that, on 20.05.2010 at 1920 hours, no sooner complainant Zia ul Haq (PW.7) along with his brother Rahat Ullah deceased and father Aman Ullah (PW.8), came out, after offering evening prayer in Qadar Baba mosque, accused Fazal Muhammad (appellant-convict herein) along with absconding co-accused Fida Muhammad and Wisal Muhammad, duly armed with firearms, standing there opened fire at them, as a result, Rahat Ullah was hit and died on the spot, while complainant and his father luckily remained unscathed. Motive behind the occurrence is stated to be that, few days prior to the incident accused by virtue of some domestic disputes, were outlawed by the complainant from participating in the "Fatiha Khwani" of his deceased mother. In addition to complainant, the incident is stated to have witnessed by his father Aman Ullah (PW.8) and his uncle Hidayat Ullah (abandoned PW). Report of the complainant was incorporated into FIR Exh.PA by Pir Jamal S.I. (PW.10). He also prepared injury sheet and inquest report of deceased Exh.PM/1 and PM/2 and referred the dead body for postmortem examination.
3. Dr. Syed Asghar Ali Shah (PW.6) conducted autopsy on the dead body of the deceased and found the following injuries on his person:-
1. Firearm entrance wound on right side scalp on occipital area about 1/2 x 1/2 cm.
2. Firearm exit wound on right orbital area, the right eye-ball missing, size about 4 x 4 cm.
3. Firearm entrance on left arm about 1/2 x 1/2 cm
4. Firearm exit wound on left side chest above the nipple size about 0.6 x 2 in length.
5. Fire-arm entrance wound on the right HC, size about 1/2 x 1/2 cm.
6. Firearm exit wound on back of right lumber region about 6 cm in dimension.
In his opinion the death of the deceased occurred due to firearm injuries to vital organs like brain, liver, lung, leading to haemorrhage, shock and death.
4. Tariq Saeed ASI (PW.9) conducted investigation in the case. During spot inspection he secured bloodstained earth Exh.P.1 from the place of the deceased vide recovery memo Exh.PW. 5/1, three empties of 7.62 bore Exh.P.2 from the place of the appellant/convict vide recovery memo Exh.PW.5/2, five and three empties from the places of absconding co-accused Fida Muhammad and Wisal Muhammad, respectively, vide recovery memo Exh.PW.5/3. Vide recovery memo Exh.PW.5/5, he took into possession the last worn bloodstained garments of the deceased, prepared site plan Exh.PB on the pointation of eyewitnesses, sent the bloodstained articles to the FSL and received report thereof Exh.PK. He also sent the recovered empties to Firearms Expert, initiated proceedings under sections 204 and 87, Cr.P.C. against the accused and on completion of investigation, handed over the case file to Sher Afsar Khan SHO, who submitted challan in terms of section 512, Cr.P.C. against the accused.
5. On arrest of the appellant/convict, supplementary challan was submitted against him before the learned Trial Court, where he was formally charge sheeted to which he pleaded not guilty and claimed trial. To bring home the guilt of appellant, prosecution examined as many as ten witnesses. After closure of the prosecution evidence, statement of appellant was recorded under section 342, Cr.P.C., wherein he denied the prosecution allegations and professed his innocence. He, however, declined to be examined on oath as his own witness under section 340(2), Cr.P.C. or to produce evidence in defence. On conclusion of trial, learned Trial Court, after hearing both the sides, convicted and sentenced him, as mentioned above, hence, this appeal.
6. Learned counsel for the appellant argued that impugned judgment of the learned Trial Court is based on misreading and non-reading of evidence available on record; that both the alleged eyewitnesses, who are close relatives of the deceased have badly failed to establish their presence on the spot, therefore, their testimony which otherwise is suffering from material contradictions, discrepancies and dishonest improvement, getting no corroboration from the site plan, medical evidence as well as other circumstances of the incident, cannot be made basis for recording conviction; that peculiar facts and circumstances of the case strongly suggest that the alleged eye-witnesses were procured, later on, because none of them being in close proximity with the deceased, has sustained a single scratch with the alleged indiscriminate firing of three accused. He further argued that let off the alleged eyewitnesses by the accused with whom they had a common motive, is highly improbable; that PW Hidayat Ullah who is real uncle of the complainant has been abandoned for no good reason, which amounts to withholding of best available evidence and in the circumstances, adverse inference within the meaning of Article 129(g) of the Qanun-e-Shahadat, Order, 1984 would be drawn against the prosecution; that keeping in view the locale and dimension of injuries on the person of the deceased, the occurrence seems to be the doing of single person; that general role of firing has been attributed to three accused but no FSL report/Fire Arms Expert report is available on file qua the recovered empties so as to determine as to whether these empties have been fired from one or more than one weapon and in such circumstances, vicarious liability of the accused on mere oral assertion without supporting evidence, cannot be determined; that site plan and medical evidence contradict the ocular account; that statement of the complainant is suffering from dishonest improvements; that in absence of substantive evidence mere abscondence of the appellant, which otherwise, he has been denied in his statement under section 342, Cr.P.C., would not be sufficient for recording conviction. He contended that prosecution case is pregnant of doubts, benefit of which is to be extended to the appellant not as a matter of grace or concession but as a matter of right and he be acquitted.
7. Conversely, learned counsel for the complainant contended that appellant along with his co-accused is directly charged for the occurrence in a promptly lodged report; that role of firing has been attributed to all the three accused so it would be immaterial as to whose fire shot proved fatal because under section 34, P.P.C., each of the accused is vicariously liable for the act done by his co-accused; that on the basis of mere close relationship of the eye-witnesses, their straightforward, confidence inspiring testimony, corroborated by medical evidence as well as recoveries from the crime spot, cannot be discarded; that prosecution has failed to create any dent in the ocular account; that prosecution has successfully proved the guilt of the appellant through cogent and confidence inspiring evidence. He contended that the impugned judgment of the Trial Court being based on proper appraisal of evidence is not open to any interference.
8. Learned A.A.G. while supporting the impugned judgment of the learned Trial Court, sought dismissal of the appeal.
9. We have considered the exhaustive submissions of learned counsel for the parties and perused the record with their able assistance.
10. The ocular account of the occurrence has been furnished by Zia ul Haq (PW.7), and Aman Ullah (PW.8), who are real brother and father, respectively, of deceased Rahat Ullah. True that on mere close relationship of a witness with the complainant or deceased, his testimony cannot be discarded provided the same is trustworthy, confidence inspiring and corroborated by other strong circumstances of the incident. Similarly, for believing and relying upon the testimony of an eyewitness, the eyewitness who claims his presence at the spot must satisfy the mind of the court through some physical circumstances or through some corroborative evidence in support of his presence at the spot.
11. Keeping in mind the above principles, we would like to evaluate the ocular account furnished by PWs Zia ul Haq and Aman Ullah. In his report complainant Zia ul Haq (PW.7) stated that the accused were armed with firearms, who on sighting them, opened fire at them, as a result, deceased Rahat Ullah was hit and died on the spot, but in his court statement while making dishonest improvement to bring in line his testimony with the recovered empties from the spot, he deposed that the accused were armed with machines. Recovery of 7.62 bore empties has been effected from the spot, which means that the deceased was done to death with Kalashnikov. A look over the site plan Exh.PB reveals that complainant (PW.7) has been shown at point No.2 while the accused at points Nos.5, 6 and 7. The distance inter se the complainant and the accused as shown in the site plan is 12, 8 and 7 paces. Kalashnikov or 7.62 bore rifle is a common weapon in the society, particularly this part of the country, which can be recognized easily even from a sufficient distance. In the instant case, when the accused were in close proximity with the complainant, how he could not identify and recognize the weapons they were allegedly holding. Complainant and PW Aman Ullah have been shown at a distance of 5 and 7 paces from the deceased. The occurrence allegedly took place in front of Qadar Baba mosque. Both, complainant and PW Amanullah have charged the accused for indiscriminate firing at them as well as the deceased. It is not the case of the PWs that they at the time of firing took shelter some where. Aman Ullah PW.8 in cross-examination deposed that in all, about 80/90 shots were fired by the accused including aerial firing, but none of the PWs has sustained a single scratch what to say of any firearm injury despite they being in close proximity with the deceased and at the mercy of the accused. The escape of the PWs from such heavy firing of the accused or their let off by the accused having common motive with them, is highly improbable. No spent bullet has been recovered from the spot. Though, the I.O. has observed some bullet marks on the wall of the mosque but he has not given any explanation whether these were fresh or otherwise. Besides, the numbers of recovered crime empties do not commensurate with the number of fire shots as stated by PW Aman Ullah. It is not the case of the PWs that some body removed the empties from the spot. Both the PWs have admitted in their cross-examination that the dead body of the deceased was picked up by them and was put on a cot, in which process their hands and clothes smeared with the blood of the deceased, but none of them has produced the bloodstained clothes to the I.O. so as to establish their presence on the spot. The stance of PW Aman Ullah has been contradicted by complainant PW.7, according to him 2/3 shots were fired upon him and same was the case of his father PW Aman Ullah. PW Aman Ullah was also confronted with his statement under section 161, Cr.P.C. wherein he has not stated about the kind of weapon but in his cross-examination he deposed that he had mentioned Kalashnikovs as weapon of offence. Both the alleged eyewitnesses have made number of dishonest improvements just to bring in line their testimony with other circumstances of the case, which would be fatal for the prosecution case. Complainant in his cross-examination admits presence of "Kaptan Mosque" in his Mohallah and that Qadar Baba mosque is situated in other Mohallah. Both the PWs have not given any plausible explanation about their presence/offering prayer in Qadar Baba mosque, leaving the mosque of their own Mohallah. This aspect of the case also creates doubt in the prosecution case.
12. Medical evidence negates the ocular account and the site plan prepared at the pointation of the alleged eye-witnesses. In the site plan the deceased has been shown at point No.1 whereas the appellant-convict at point No.5 towards his left. Perusal of autopsy report of the deceased reveals that deceased had received all the entrance wound from right side except wound No.3. Similarly, the dimensions of all the entrance wound is 1/2 centimeter, which strongly suggest the occurrence to be the doing of single accused, but not in the mode and manner by the alleged eye-witnesses rather in some other mode which shrouded in mystery. It has been held by the apex court in plethora of judgments that contradiction in medical evidence and ocular evidence would make the prosecution story doubtful and it can be held as if eye-witnesses had not seen the incident.
13. As regard the argument of learned counsel for the complainant that in case of role of general firing to accused, it would be immaterial as to whose fire shot proved fatal because under section 34, P.P.C., any criminal act done by several persons, in furtherance of their common intention, each of them would be liable for that act in the same manner as it were done by him alone. No doubt, section 34, P.P.C. embodies common sense principle that if two or more persons intentionally did a thing jointly, it was just the same as if each of them had done individually, but at the same time, the prosecution is also bound to prove the overt act on the part of each accused done in furtherance of common intention. To attract the provisions of section 34, P.P.C., there must be some proof of overt act on the part of each accused done in furtherance of common intention. In the case in hand, though, according to the I.O. empties of 7.62 bore, recovered from the spot, had been sent to Firearms expert, but no such report is available on file, from which it could be determined as to whether the recovered empties had been fired from one or more than one weapon. No crime weapon has been recovered from direct or indirect possession of the appellant/convict. He has not made any discovery nor confessed his guilt before the competent court of law. Thus, in absence of all these material pieces of evidence, how participation of the appellant/convict and his vicarious liability can be proved. Mere recovery of crime empties from the place assigned to appellant would not advance the case of the prosecution as the same cannot be a substitute of direct evidence. Rather, such like evidence is always considered as corroborative piece which is taken into consideration along with direct evidence. As stated earlier, the direct evidence of the alleged eyewitnesses is highly improbable and suffers from material discrepancies creating serious doubts about their presence on the spot and about the mode and manner of the occurrence as alleged by them. As per the dictum of the apex Court, corroborative evidence is meant to test the veracity of ocular evidence. Both corroborative and ocular testimony is to be read together and not in isolation. Wisdom in this regard may be derived from Ijaz Ahmed's case (1997 SCMR 1279 and Asadullah's case (PLD 1971 SC 541) . It has been held by the apex Court in case titled, "Saifullah v. The State" (1985 SCMR 410) , that when there is no eyewitness to be relied upon, then there is nothing, which can be corroborated by the recovery. Similarly, in case titled, " Riaz Masih v. The State " 1995 SCMR 1730 , the honourable apex Court held that recovery of crime weapon by itself is not sufficient for conviction on murder charge. In case of Siraj v. Crown (PLD 1956 Federal Court 123), it has been held that recovery of handle of blood-stained hatchet at the instance of the accused, when other evidence was disbelieved, then it was not enough for conviction. Same view has been expressed by the apex Court in Saifullah's case (1985 SCMR 410).
14. Besides, Hidayat Ullah mentioned in the FIR as eyewitness of the occurrence, has been abandoned by the prosecution for no good reason. In the circumstances, adverse inference within the meaning of Article 129(g), Qanun-e-Shahadat Order, 1984 would be drawn against the prosecution that had he been produced in the witness box, he would not have supported the prosecution version. In this respect reliance can be placed on Master Muhammad Saddique's case (2003 MLD 1774).
15. So far as the only circumstance against the appellant/accused i.e. his abscondence is concerned. He has denied the same in his statement under section 342, Cr.P.C. Moreso, abscondence alone, cannot be a substitute for real evidence. It has been observed by the apex Court in Farman Ali and others' case (PLD 1980 SC 201) that abscondence by itself would be of no avail to prosecution in absence of any other evidence against the absconding accused. Mere abscondence of accused would not be enough to sustain his conviction. Wisdom in this regard may be derived from case titled, "Muhammad v. Pesham Khan (1986 SCMR 823) . Since there is no credible evidence to support the prosecution version, so abscondence, itself, would not be sufficient to prove the guilt of appellant. According to golden principle of benefit of doubt, one substantial doubt would be enough for acquittal of the accused. In the instant case, the prosecution evidence is highly discrepant and full of infirmities and as such has created a genuine doubt in our mind regarding the participation of the appellant in commission of the crime.
16. It is cardinal principle of administration of criminal justice that prosecution is bound to prove its case beyond any shadow of doubt. If any reasonable doubt arises in the prosecution case, benefit of the same must be extended to the accused not as a grace or concession, but as a matter of right. Basically, it is the principle enshrined in Islamic jurisprudence, fourteen hundred years ago that "it would be better to acquit hundred culprits than convicting one innocent soul." Which has now been transformed into the form of the principle that, "acquitting by error would be better than convicting by error".
17. In wake of our above discussion, we have reached to an irresistible conclusion that the prosecution has miserably failed to establish the guilt of the appellant through cogent and confidence inspiring evidence of unimpeachable character, the statements of the alleged eye-witnesses are pregnant of doubts and suffering from material contradictions and dishonest improvements which escaped the notice of the learned trial Court and thereby reached to a wrong conclusion by holding the appellant guilty of the offence. Resultantly, this appeal is allowed. The conviction and sentence of the appellant recorded by learned Trial court are set aside and he is acquitted of the charge leveled against him. He be set at liberty forthwith, if not required in any other case.
18. These are reasons of our short order of even date, which is reproduced below:-
"For reasons to be recorded later, we allow this appeal, set-aside the conviction and sentence of the appellant Fazal Muhammad awarded to him by learned Trial Court/Additional Sessions Judge Lahor Swabi, vide impugned judgment dated 24.11.2011, in case FIR No.630, dated 20.05.2010, registered under sections 302/324/34, P.P.C., at Police Station Lahor, District Swabi, and hereby acquit him of the charges leveled against him in the aforementioned case. He be set at liberty forthwith, if not required in any other case".
HBT/464/P Appeal allowed.