FAIZ MUHAMMAD Versus QADAR GUL
ABDUL LATIF KHAN, J.--- This appeal has been directed against the judgment dated 11.3.2011 passed by learned District Judge/Zila Qazi, Malakand at Batkhella, whereby accused/respondent, Faiz Muhammad, involved in case FIR No. 15 dated 5.3.2010 registered at Levy Post, Batkhela, was convicted and sentenced as under:-
(i) Under section 302(b), P.P.C. to life imprisonment with fine of Rs. 1,00,000/- as compensation under section 544-A, Cr.P.C. to be paid to legal heirs of Ismaeel or in default thereof to suffer SI for three months.
2. On 5.3.2010 complainant Qadar Gul lodged a report in Civil Hospital, Batkhela, that he was present in his house, at about 20.00 hours he heard the report of fire shots, so, he went out of his house and saw that Faiz Muhammad was firing at his nephew Ismaeel with his pistol. Accused, thereafter, went inside his house and made firing at his wife, Nasreen, with which she was hit and died while his nephew received injuries. Regarding motive he stated that prior to the occurrence, accused was having strained relation with his nephew. He further stated that the occurrence took place overtly and might have seen by anybody else. The report of complainant was reduced into writing in shape of Murasilla, which culminated into the above referred FIR.
3. Subsequently, injured Ismael also lost his breath. Aziz ur Rehman, IHC, (PW-12) visited the spot and prepared the site plan, Ex.PB and Ex.PB/1. During spot inspection, he recovered blood stained earth, a Kalashnikov, four empties of 7.62 bore and an empty of .30 bore from the spot. He recorded statements of PWs wherein they also charged Umar Daraz and Sardaraz besides Faiz Muhammad. Accused were arrested and on the pointation of accused Faiz Muhammad a .30 bore pistol as weapon was recovered. After completion of investigation, challan in the case was submitted before the court.
4. Learned trial court, on receipt of challan, charge sheeted the accused to which they pleaded not guilty and claimed trial. On the commencement of trial, prosecution produced twelve witnesses in support of its case. On conclusion of prosecution evidence, accused were examined under section 342, Cr.P.C. wherein they claimed to be innocent and false implication in the case. However, they were neither ready to be examined on oath nor wished to produce defence. Learned trial court on conclusion of trial and hearing the parties, convicted and sentenced accused Faiz Muhammad, as stated above, while accused Umar Daraz and Sardaraz were acquitted of the charge, hence, the present appeal by Faiz Muhammad against his conviction and sentence.
5. Learned counsel for the appellant/convict contended that the judgment of learned trial Court is the result of mis-appreciation of evidence on record. He conteded that occurrence took place at night time in two different places and is unseen with further contention that testimony of Qadar Gul complainant and Khurmat Bibi are neither trustworthy nor confidence inspiring. He argued that there are contradictions in the statements of PWs, therefore the story advanced by the prosecution has not been established and the same could not be believed. He argued that an empty of .30 bore and the alleged pistol were sent to FSL and result thereof is in negative. He further contended that according to Murasilla accused fired at the deceased with his pistol but during spot inspetion four empties of KK bore have been recovered. He argued that the prosecution has miserably failed to bring home the charge against the appellant-convict beyond reasonable shadow of doubt and the learned trial court has wrongly and mistakenly assessed the evidence on record and passed the impugned judgment of conviction without any cogent evidence, therefore, the same is liable to be set aside and the appellant be acquitted of the charge.
6. As against that, Learned A.A.G. appearing on behalf of the State and counsel for complainant contended that single accused is charged in the FIR for the murder of Ismaeel and his wife Mst. Nasreen which is supported by the testimony of complainant, PW-10, eye-witnesses, namely, Mst. Khurmat, PW-11, Lady Dr. Rashman Jamal PW-5, Dr. Sher Ali Khan, PW-7, Aziz Ur Rehman, Investigating Officer, PW-12, coupled with blood stained earth, garments of the deceased and empties of 7.62/30 bore and kalashnikov from the spot and a pistol on the pointation of appellant and further his disappearance from his home just after the occurrence and, as such, supported the impugned judgment.
7. We have considered arguments of learned counsel for parties and have gone through record of the case through their able assistance.
8. The record reveals that the deceased have been done to death in two different places. Ismaeel has been killed at the place adjacent to tube-well, while Mst. Nasreen has been killed in the house of appellant, Faiz Muhammad at 08.00 p.m. on 5.3.2010. In the month of March, admittedly, sunset time is 6.00 to 6.10 p.m. and time of 'Isha' is at 7.30 p.m, meaning thereby, the occurrence took place in dark hours of the night. Complainant appeared as PW-1 and he in his examination in chief deposed that deceased Nasreen was the wife of appellant, Faiz Muhammad, and her house was situated near to his house, however, he was not in good terms with her. He deposed that on the day of occurrence, he was present in his house, when heard the report of firing on which he went out and saw that appellant, Faiz Muhammad, was firing at his nephew with his pistol with which he was hit and received injuries and, thereafter, he went to his house and made firing at Nasreen with which she was hit and died on the spot. In his statement he did not disclose the source of light through which he identified the accused as the occurrence took place at Isha time. In his cross-examination complainant deposed that he came out of his house, saw his nephew being hit, which suggests that he has not seen the accused while firing at his nephew. The second occurrence took place inside the house of accused and complainant admitted that he did not go to the house of accused. According to Murasilla, no relative was present with deceased Nasreen in hospital and there is no explanation as to how her corpus reached to the hospital as complainant had not brought her dead body and stated in his cross-examination that injured Ismaeel and dead body of Nasreen were brought to the hospital separately and his statement was recorded in levy post on the following day of the occurrence on which his thumb impression was obtained. Statement of complainant has also been belied by the medical report. Dr. Sher Ali, who examined the deceased then injured, Ismaeel, deposed that he examined injured Muhammad Ismaeel at 8.30 hours on 5.3.2010 while report has been lodged at 8.40 hours. Aziz ur Rehman, who recorded report of the complainant, deposed that he recorded report of the complainant at 20.40 hours and, thereafter, he prepared injury sheets and handed over the injured and deceased to Doctors for examination. Dr. Rashman Jamal, who conducted external examination on the dead body of deceased Nasreeen, deposed that she examined the deceased on 5.3.2010 at 8.30 hours but there is over-writing on the time of arrival of deceased to the hospital. The medical report reveals that digit '8' has been written on digit '9' by making over-writing on it, however, overleaf the injury sheet time 9.00 p.m dated 6.3.2010 has been written beneath the signature of lady doctor, but made overwriting on date. Digit '6' has been changed into digit '5' in order to in line with the story of prosecution. Testimony of Khurmat Bibi, PW-11, is also not confidence inspiring. She deposed in her examination in chief that she was present in her house when heard the report of firing, therefore, she ascended on ladder and saw Sardaraz and Umar Daraz standing while Faiz Muhammad was firing at her sister, Nasreen, with his Kalashnikov. In cross-examination she showed ignorance regarding the distance between the places of both the deceased and further showed ignorance that at which time the dead body of deceased was shifted from the house. Had she been present on the spot, she could have given statement to police to be an eye-witness of the occurrence on the same day and even pointed out the spot to the Investigating Officer but her statement has been recorded by the police on 9.3.2010, after fourth day of the occurrence, There is no explanation regarding such delay, meaning thereby, the occurrences took place in dark hours of the night and was unseen, therefore, it can safely be concluded that the report has been lodged with due consultation and deliberation and after preliminary investigation. It is fundamental principle of jurisprudence that to disbelieve a witness, it is not necessary that there should be numerous infirmities and if there is one which impeaches the credibility of the witness, that may make the entire statement doubtful.
9. Jalat Khan, father of deceased Nasreen, appeared as PW-9 and deposed in cross-examination that dead body of deceased was brought to village Landaki at 11.00 hours and on the third day of the occurrence he came to Levy post. He deposed that he is not an eye-witness of the occurrence, however, stated that Khan Zarin and Taza Khan had brought the dead body of deceased to his house and told him that she has been killed by the appellant but the said persons have not been produced before the trial court. It is well settled principle of law that if a best piece of evidence is available with a party and the same is withheld by him, then it is presumed that the party has some evil motive behind it in not producing the said evidence, therefore, adverse inference under illustration (g) to Article 129 of Qanun-e-Shahadat Order can fairly be drawn in the matter.
10. As far as recovery of pistol on pointation of accused and an empty of .30 bore, Kalashnikov and its four empties from the spot are concerned, the same have not established from the evidence available on record. The alleged pistol and an empty of 30 bore were sent to FSL but its report is negative, which further negates the story of prosecution.
11. The evidence furnished by complainant and Mst. Khurmat Bibi is not confidence inspiring and the mere fact that the appellant did not appear before the police just after the occurrence and he has not participated in the funeral ceremony of his wife as she was killed in his house cannot be made basis for conviction of the appellant.
12. Motive behind the occurrence is still shrouded in mystery and the one advanced by the prosecution between deceased Muhammad Ismaeel and appellant has also not been established. When the presence of the eye-witnesses have not been established at the relevant time and the occurrence is of unseen then mere fact that single accused is charged could not move forward the case of prosecution and even otherwise single accused by itself is not proof of guilt. Reliance in this regard is placed on case of Muhammad Khan and another v. The State 1999 SCMR 1220. It is well established principle of criminal law that for giving the benefit of doubt it is not necessary that there should be many circumstances creating doubts but a single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefit not as a matter of grace and concession, but as a matter of right.
13. In view of the above discussion, we are of the view that the prosecution has failed to prove the guilt against the appellant. The evidence available on record are not of such a character which could be relied upon to convict a person on a capital charge as the testimony of eye-witness is not worthy of credence, therefore, his conviction cannot be maintained. For the aforesaid reasons while extending the benefit of doubt, we accept the appeal filed by the appellant/convict by setting aside his conviction and sentence and acquit him of the charges leveled against him. Similarly, Criminal Revision No. 53/2011 for enhancement of sentence is also dismissed.
These are the detailed reasons for our short orders of even date.
HBT/431/P Appeal accepted.