GUL MUHAMMAD Versus State
IKRAMULLAH KHAN, J.--- The instant criminal appeal is directed against the Order/judgment dated 24.07.2010 passed by the learned Additional Sessions Judge, Peshawar. The appellant in the instant case was arrested by local police Mardan under section 54, Cr.P.C. and thereafter, the local police P.S. Mattani formally arrested him in the present case. Appellant was tried for offence under sections 302/324/34, P.P.C. and on conclusion of trial, was convicted and sentenced under section 302(b), P.P.C. for imprisonment for life and a fine Rs.20,000/- as compensation to be paid to legal heirs of deceased of Ahmad Ali. Similarly was found guilty for murder of deceased Zarbaz and was convicted and sentenced under section 302(b), P.P.C. for life imprisonment and a fine of Rs.20,000/- as compensation to be paid to the legal heirs of late Zarbaz. Appellant was also found guilty for attempt to commit Qati-i-amd of injured Dawa Khan and was convicted and sentenced to R.I. for five years and a fine of Rs.10,000/- or in default of payment of such fine, shall further undergo S.I. for one month.
2. Brief facts of the case are that complainant, Dawa Khan, reported that he along with his son, Zarbaz Khan, and a nephew, Ahmad Ali, were going pedestrian from their residence to the residence of his brother Muslim Khan, when reached to the place of occurrence, Gul Shad, Noor Sher sons of Gul Khan (appellant), Gul Muhammad son of Gul Shad, duly armed with deadly weapons, who were present there, on seeing them, started firing with the intention to kill, as a result of which, complainant Dawa Khan was hit and sustained injuries on his right side of his chest and near right oxter, whereas his son Zarbaz Khan was also injured and his nephew Ahmad Ali was died on the spot. Besides complainant, the occurrence was also witnessed by his son Zarbaz Khan and other people attracted to the spot. The motive for the occurrence was stated to be previous blood-feud. Accordingly, he charged all the accused for the commission of offence and the aforesaid FIR was registered. Later on, Zarbaz Khan, who was in injured condition and hospitalized, also succumbed to his injuries. Khan Abbas Khan, SI (PW-1), prepared the injury-sheets as well as inquest report of the deceased and then of injured, Zarbaz Khan, and sent the dead body under the escort of Constable Johar Ali for post mortem.
3. Muhammad Yousaf Khan, SHO (PW-8), on receipt of Murasila, registered case FIR (Ex.PA), started investigation and proceeded to the spot, prepared the site-plan (Ex.PB) at the instance of eye-witness, Muslim Khan, recovered blood stained earth vide recovery memos. (Ex.PW 2/1 and Ex.PW 2/2). He took into possessions 07 empties of 7.62 bore (Ex.PW 2/3), blood stained cloths of deceased Ahmad Ali and of the deceased then injured, Zarbaz Khan, (Ex.PW 8/1 and Ex.PW 8/2), one rifle of 7.62 bore alongwith five live rounds. He sent the bloodstained articles, 07 empties of 7.62 bore, one rifle of 7.62 bore along with five live rounds to FSL and received the reports in positive.
4. The appellant, while in custody, was summoned by the trial court through Zammima Bay , who submitted application for his age determination and the same was referred to standing medical board for examination. After examination, the age of appellant was found less than 18 years at the time of alleged occurrence. Accordingly, complete challan was submitted in court against the appellant under Juvenile Justice System Ordinance, 2000. The charge was framed against the appellant, to which he pleaded not guilty and claimed trial. The prosecution in order to prove the charge and to substantiate the allegations levelled against the appellant, produced thirteen witnesses at the trial. Thereafter, the appellant, at the close of prosecution evidence, was examined under section 342, Cr.P.C., who, in his statement, denied the charge and pleaded innocence. At the conclusion of trial, the appellant was convicted and sentenced as above. Hence, the instant appeal.
5. The learned counsel for the petitioner submitted while arguing the appeal that the appellant at the time of alleged occurrence as per the school leaving Certificate was 6 years old, however, he pointed out that even if the age, as mentioned by the learned trial judge in statement recorded under section 342, Cr.P.C. of appellant is considered to be correct, then at the date of alleged occurrence, age of appellant was 10 years. He submitted that it was not possible that a young boy of 6 or 10 years would involve himself in such like heinous offence. He further stated that otherwise too the involvement of a child in such like heinous offence is not attractive to reasonable mind. The learned counsel for the appellant also stressed with great vehemence that appellant could not be convicted on the untrustworthy, solitary, uncorroborated statement of the complainant who was inimical too that, the principle accused has been convicted by the trial Judge in previous trial and the main ground of his conviction was the confession recorded by him, so even if that confession has to be taken into consideration then it shall be accepted as a whole; as the principal accused, father of the appellant has exonerated all other co-accused of the commission of the offence, therefore, appellant be given benefit of the ground of non-participation in the commission of offence as stated in the confessional statement of the principal accused; the prosecution case is full of material contradictions. All the private witnesses were close relatives, interested, inimical towards the appellant family and at the close of his arguments, prayed for acquittal of the appellant on extension of benefit of doubts.
6. On the other hand, the learned State counsel assisted by the learned counsel for complainant fully supported the impugned judgment and mainly stressed upon the ground that petitioner has remained fugitive of law for a long time and his this noticeable absconsion otherwise too, suggest that he had committed the offence:
Arguments heard and record gone through the valuable assistance of all the counsels of the parties.
7. In the light of the evidence brought on record, when placed in juxtaposition to the arguments of the learned counsel for the appellant, the legal proposition arising out thereof is that:-
(i) whether, appellant participated in the commission of the offence, instead of his tender age during the days of occurrence;
(ii) Whether the statement of complainant was corroborated by any other piece of evidence available on record;
(iii) Whether mere absconsion would be a sufficient ground for conviction of the appellant;
(iv) Whether the confessional statement of principal accused would be of no value, as far as the participation of the appellant in the alleged crime was concerned;
(v) Whether prosecution has succeeded, in bringing home the guilt of accused beyond any reasonable doubts.
8. In the dispensation of criminal justice, there is no second option in the proposition that prosecution is bound in all circumstances to prove its case, beyond any reasonable doubt, irrespective of stance taken by the accused in the course of cross-examination over the prosecution witnesses or statement recorded under section 342, Cr.P.C. It is the primarily bounded duty of prosecution to prove its case, though exceptions always exist but when accused does not take any specific plea of exceptions as enumerated in sections 76 to 95 of P.P.C. then burden could not be stipple to accused to prove his innocence. The complainant in the instant case in the FIR has stated that he was taken to the hospital by his son Sandali who was attracted to the place of occurrence, soon after the occurrence as alleged he was present in his shop close to the place of occurrence. The complainant in his witness statement recorded before the trial Judge has also reiterated his this version, however, he introduce his brother Hussain Khan too that he was also attracted to the place of occurrence and has seen the occurrence.
9. On the next date of occurrence i.e. 25.6.2000 after 3 O'clock the local police recorded the statement of some other PWs including PW-6 Muslim Khan, who recorded his statement before the trial Judge too. Somand Ali or Sand Ali recorded his statement before the trial court as PW-5. This witness has not said a single word either against the appellant or in respect of the occurrence, except a few words that he had identified his deceased brother Zarbaz Khan before the doctor and police, though PW-6 who is the father of deceased Ahmad Ali, has stated in his statement before the trial court that he and PW Samad Ali were present in the shop, when they heard firing and attracted to the spot. PW-6 Muslim Khan, though he has recorded his statement before the trial Judge as an eye-witness but the name of this witness is nowhere mentioned by the complainant in the FIR, nor his name got place anywhere in the calendar of witnesses, submitted along with the report under section 173, Cr.P.C. before the trial Court. This PW Muslim Khan has also not stated in his witness statement that he had seen the appellant on firing upon either the complainant or the other two deceased. In this situation, the only evidence, remained against the appellant is that of complainant. The local police as soon after the occurrence, arrived at the spot recovered 7 empties of 7.62 bore from the place of occurrence but were found near the place which has been assigned to in the site plan to the principal accused. The principal accused was arrested soon after the occurrence present in his house along with the weapon of offence. The weapon of offence, along with the empties recovered from the spot was sent to FSL, the said report as exhibited before the trial court was positive and the whole empties recovered from the spot was fired from the rifle recovered from the principal accused soon after the occurrence. The said principal accused namely Gul Shad recorded his confessional statement before a competent court in this respect and thereby admitted his guilt but stated therein that no any other person was involved in the alleged occurrence except him. The trial court has already convicted him and has also accepted his confessional statement as true. Though mere relationship of a witness, is not fatal to the prosecution nor the statement of such a witness be discarded on this score alone but evidence of an interested witness be gauged with great caution.
10. It is admitted fact that the Investigation Officer, just after the occurrence when arrived to the spot, drafted the site plan on the pointation of the witness namely Muslim Khan though never termed by the complainant as an eye-witness but the I.O. did not record his statement on the same day of occurrence with reason best known to the I.O. However, his statement was recorded on the next day of occurrence but interestingly his name never appeared as a witness in the calendar of witnesses. The Superior Courts has always discarded the statement of such a witness, whose statement under section 161, Cr.P.C., was recorded late during course of investigation. No plausible explanation has been offered either by this PW or by the I.O. that though as alleged, this PW was present, on spot on the day of occurrence but his statement was not recorded. In such circumstances, the belated statement of so much close relative of deceased, could not be given worth and could not be relied upon.
11. In the present scenario of the case, the only statement which is to be discussed remained that, of the complainant. Though he has received injuries but it is not the universal principle that the statement of such witness be treated as a gospel truth. The Court has to scrutinize such statement in the prevailing circumstances of every case independently. Though the police station, was on the way to hospital from the place of occurrence and the complainant was not seriously injured too, while the other PWs according to their own version were accompanying the injured did not inform the local police on their way to the hospital.
12. PW Abbas Khan ASI has stated that he prepared the injuries sheet of complainant at 7.30 hours and when he was examined by the doctor, thereafter the complainant recorded his report which was sent to Police Station, by unknown person. The occurrence as narrated took place at 6.00 hours while the injured complainant reported the matter to the police at 8.00 hours after examined himself medically instead of the fact that he was able to talk before medical examination and at the time of preparation of injuries-sheet by the police official present in the hospital, seriously creates doubts. Substitution is not ruled out in such like circumstances, charging all male family members apart from the real culprit is not a rare phenomenon, in the area from where both the parties hailed. Both the parties have remained well acquainted with such like situation as both parties had and have enmities and have faced treatment of police and criminal trials, well aware, how to cause as much as possible agonies to accused party by increasing the numbers of accused in the commission of offence.
13. The prosecution has stressed upon the absconsion of the accused too much, but mere absconsion and that too, without cogent proof of the commission of an offence, is no ground at all for conviction of an accused. Though it is evident from record that the appellant remained absconder for a long time which also held by the trial court and was made the main cause of conviction of appellants but mere absconsion could not be a base for conviction of an accused without other attending circumstances. Abscondence at the most could be taken as a corroborative of the charge and not evidence of the charge in case of absence of any other corroborative evidence, said evidence even if found convincing would not be sufficient by itself to warrant the conviction of accused on a charge of murder.
14. It is also now settled principle of law that stand taken by accused in cross-examination, is merely in the term of suggestion, accused can take several defences but the prosecution cannot improve the case, by such kind of admission as referred by the trial court and was attributed to the appellant and was made one of the ground for conviction of the appellant, is totally alien to the golden rule of criminal justice, the accused being the favourite child of law is not debarred by any canon of law, not to take as much defence as he could, even inconsistent pleas taken in cross-examination, the prosecution would not be given benefit of it nor it would be made a cause for conviction of an accused. There is no any corroborative evidence against the accused, even all the empties recovered from the spot matched with the rifle recovered from the co-accused, father of the appellant. The only evidence against the petitioner is that of the complainant who was also injured during the occurrence. It is also admitted fact that the complainant is father of one deceased while real maternal uncle of the other deceased. So in such like circumstances, great caution is required to accept the solitary statement of the complainant.
15. Though relationship of a witness with the deceased was not a disqualification to out rightly disbelieve his testimony but when the statement of solitary witness closely related to the deceased was found not in harmony with material on record, conviction on the basis of the statement of such witness could not be recorded, while a single infirmity creating reasonable doubt in the prudent mind was sufficient for giving benefit of doubt to an accused is rule of dispensation of criminal justice.
16. The parties pertains to an area, where it could not be ruled out of consideration that they are not familiar with various kinds of weapon but the complainant despite of the fact, has shown himself very close to all the three charged accused as evident from the perusal of his witness statement and site plan but have not uttered a single word in respect of the kind of weapon allegedly used by accused. The FSL report also favours the petitioner as all the empties recovered thereof was fired from a single rifle, attributed to the principal accused. To convict a person, on a capital charge, the evidence should be of very high quality and good standard, which was not available in the present case. Major discrepancies were found in statements of various prosecution witnesses, while the medical report did not fully support the ocular evidence.
17. Despite of the fact, that it was an early morning and also admitted by complainant himself that a number of persons were attracted to the spot, it is also admitted that just opposite to the alleged place of occurrence, a mosque was situated but no any independent witness have been procured in this respect to record his statement in support of the version of the complainant, as far as the participation of the present appellant in the commission of the offence is concerned.
18. In such like situation, the apex court in case of Muhammad Nawaz reported as PLD 2005 SC 40 has held that:-
"Benefit of all favourable instances in prosecution evidence must go to accused regardless of whether he has taken any such plea or not".
19. As far as the statement of an injured person is concerned, in case of Muhammad Raja reported as PLD 2004 Peshawar 1 , it was held that:-
"Facts of the eye witness having sustained injuries during the occurrence is not sufficient to hold that he had spoken the whole truth".
It has been held by superior courts in a number of cases, which has now the consistent view of all courts that ocular evidence, which does not prove the test of credibility and are not reliable and, that too when not corroborated by other circumstantial evidence should not be accepted. Though even a solitary statement would be a base for conviction but in case when it rang true, confidence inspiring and trustworthy otherwise, uncorroborated solitary statement of an interested and inimical witness shall not be made basis for conviction of accused.
20. The confession recorded by a competent court of the principal accused which was accepted by the trial Judge in the previous trial and thereof convicted the principal accused while taken into consideration the said confessional statement then the law is that the confessional statement shall be accepted as a whole or be rejected as a whole, no pick and chose of facts in the confessional statement is allowed by law nor the facts favours prosecution would be taken into consideration and those favours accused would be rejected.
21. Even otherwise, the confessional statement recorded by the principal accused was not discarded by the circumstantial evidence brought on record in shape of recovery of empties from the spot, recovery of weapon of offence and positive FSL report goes in favour of the appellant coupled with its minority at the time of alleged occurrence. All these facts make the prosecution case doubtful as far as the involvement of the present appellant is concerned.
22. So keeping in view, the detailed reasons given herein, this appeal filed by Gul Muhammad son of Gul Shad appellant is allowed. His conviction recorded and sentences awarded to him by the learned trial Judge-VI, Peshawar vide impugned judgment dated 24.7.2010 are set aside and he is acquitted of all the charges leveled against him. He be set free forthwith, if not required in any other case.
These are the detailed reasons for our short order of the even date.
HBT/262/P Appeal allowed.