Ajdar Versus Razimand
Shahid Khan, J .--- Impugned herein is the acquittal of Razimand and others, respondents hereinafter, whereof, the appellant/complainant has called in question their acquittal in case of FIR No. 608 dated 19.10.2013, under sections 302/148/ 149 P.P.C, P.S, Ouch, District Dir Lower, recorded by the Court of learned Additional Sessions Judge/ Izafi Zila Qazi, Chakdara, Camp Court Timergara, District Dir Lower, through the impugned order/judgment dated 01.12.2014.
2. It would not be out of place to mention here that this Court on 25.10.2016 after hearing valuable arguments of the learned counsel for the appellant/ complainant had admitted the appeal in hand to the extent of accused/ respondents Nos. 1 and 2 i.e. Razimand and Muhammad Umar to full hearing in view of their effective role of firing, whereas, it stands dismissed to the extent of rest of the respondents No. 3 to 5 i.e. Asif Khan, Mst. Nasreen and Mst. Meena Bibi.
3. Reportedly, the police party headed by the SHO, P.S, Ouch, rushed to the spot pursuant to receipt of information that an offence of murder has taken place at the vicinity of village Kotigram, whereby, they found the dead body of a person, lying in a pool of blood. At the spot, the appellant/complainant, Ajdar Khan reported the subject event to the local police in terms that dead body was of his brother, Zahoor, who had lastly seen being boarded on his motorcycle and proceedings towards village Kotigram. The complainant came to know from the people of the locality that adjacent to the place of occurrence a motorcar bearing No. LEB-09 8769 was found present in standing position, in which a woman and man were board. Both the accused were alleged to have made firing at his brother through their respective pistols, as a result of it, he got injured on different parts of his body and died on the spot. The event was reduced into in writing in the shape of 'Murasila' (Ex. PW-7/1) followed by the ibid FIR (Ex. PA) registered against unknown accused at P.S concerned.
4. Later on, the complainant-party recorded their statements under section, 164 Cr.P.C whereby, they charged the accused/ respondents, with their co-accomplices for the committing the murder of their brother, Zahoor, by citing a specific motive which was stated to be a dispute over the womenfolk.
5. Upon arrest of the accused/ respondents followed by completion of the investigation, challan was drawn and was sent up for trial to the learned trial Court. Accused/respondents were confronted with the statement of allegations through formal a charge-sheet to which they pleaded not guilty and claimed trial.
6. To substantiate the guilt of the accused/respondents, the prosecution furnished its account consist of the statements of eleven (11) witnesses. The accused were confronted to the evidence so furnished through statements of accused within the meaning of section 342 Cr.P.C.
7. On conclusion of the trial, in view of the evidence so recorded and the assistance so furnished by the learned counsel for the accused/respondents and the learned counsel for the complainant/learned State counsel, the learned trial Court arrived at the conclusion that in view of the evidence so recorded and assistance so provided, allegations against the accused/ respondents are tainted with the doubts, as such, by extending the benefit of doubt, the acquittal of the respondents/accused was recorded accordingly.
8. It obliged the appellant/ complainant to approach this Court through the subject criminal appeal.
9. Arguments of the learned counsel for the parties as well as the learned Astt: A.G appearing on behalf of the State have been heard at a substantial length and the record gone through with their valuable assistance.
10. The record so furnished would divulge that in the subject event the law of the land was set into motion by the appellant/complainant, Ajdar Khan, when, he reported the unfortunate incident of the murder of his deceased brother, Zahoor to the visiting party of the police, in the mode and manner as highlighted above in the preceding Para of this judgment. The initial report in the form of 'Murasila' followed by the ibid FIR was registered at P.S concerned against unknown accused with only exception that as per information received from the local inhabitants that in around the venue of crime a motorcar bearing No. LEB-09 8769 was spotted, in which allegedly a woman and man were boarded and they had allegedly committed the murder of the brother of the appellant/ complainant. At the initial report, no motive was advanced by the complainant qua the murder of his deceased brother. It was on 23.10.2013 i.e. after four days of the occurrence when the complainant-party recorded their statements under section 164, Cr.P.C, whereby, they charged the accused/ respondents for the murder of the deceased, Zahoor Khan, by citing a specific motive which was disclosed to be that his deceased brother has suspicion in his mind that his sister-in-law ( ) Mst. Mina Bibi had developed illicit relations with the accused/ respondent, Muhammad Umar. The appellant/ complainant, Ajdar Khan, on his turn appeared in the witness-box as PW-7. In his examination in-chief, he almost reiterated the same facts as advanced in his initial report followed by his statement recorded under section 164, Cr.P.C. No doubt, in his initial report in the form of 'Murasila' followed by the ibid FIR nobody was charged by the appellant/complainant for committing the murder of his brother, Zahoor Khan, however, in his statement recorded under section 164, Cr.P.C on 23.10.2013, he made the following admissions;-
Keeping in sight the aforesaid admissions made by nobody else but the star witness of the prosecution i.e. the appellant/complainant in his statement recorded under section 164, Cr.P.C coupled with his overall unnatural conduct, his examination-in-cross almost pools apart the whole case of prosecution. In his cross-examination he not only resiled from his statement recorded before the police but he also negated his statement recorded under section 164 Cr.P.C in terms that that he had not stated therein that accused Muhammad Umar had developed illicit relations with Mst. Meena. He also contradicted the alleged telephonic contacts made between the accused Muhammad Umar and Mst. Meena. He also stated that when he reached to the spot his deceased brother was lying on the ground and at the venue of crime there were around 200/300 persons. He also stated that accused, Asif was younger than accused Muhammad Umar. The very initial report of the appellant/complainant followed by his statement recorded under section 164, Cr.P.C as well as his testimony before the Court are full of contradictions and improvements which cut the very roots of the prosecution' s case. Same was the case with the statement of PW-8, Sher Muhammad. Testimony of this PW too is also of no use for the prosecution qua the guilt or otherwise of the accused/ respondents. Both these witnesses have not been to specify the role of each and every accused in the commission of the alleged offence, as it is not appealable to a prudent mind that how the complainant-party or for that matter the alleged witnesses of the occurrence identify and specify the accused/ respondents, Razimand and Muhamamd Umar for their alleged role of firing at the deceased, amongst the set of five accused who were allegedly boarded in the motorcar, therefore, the very story advanced by the prosecution is not appealable to sanity. In case titled "Muhammad Arif v. The State" reported as 2019 SCMR 631, the Hon'ble Supreme Court observed regarding the effect of dis-honest improvements by a witness and observed as under:-
It is well established by now that when a witness improves his statement and moment it is observed that the said improvement was made dishonestly to strengthen the prosecution, such portion of his statement is to be discarded out of consideration. Having observed the improvements in the statements of both the witnesses of ocular account, we hold that it is not safe to rely on their testimony to maintain conviction and sentence of Muhammad Arif (appellant) on a capital charge.
Even if the accounts of these material witnesses are put in juxtaposition with their improvements, as referred to above, then the same make case of prosecution a case of no evidence. In this respect, reliance is placed on the judgment of Hon'ble Federal Shariat Court rendered in case titled "Nadeem and others v. The State and others" reported as 2014 PCr.LJ 374 wherein it has been held;-
"Thus it is clear from the above that there are two versions made by the P.Ws. themselves and both these versions are self-contradictory. Obviously two contradictory statements about the same occurrence cannot be considered truthful. Therefore, a genuine doubt has arisen about these P.Ws., who blew hot and cold in the same breath and showed least respect for telling the truth and, by being capable of changing their versions as and when it suited them, proved that they are worthy of no credence even if they are natural witnesses of the occurrence. If a witness deposes falsely under threat and that too on oath inside a court, on one occasion, how can he or she be relied upon and believed as truthful on another occasion. This mercurial behavior reflected from their conflicting depositions lends, in a way, support to the defence plea that Inayat complainant and Mst. Fouzia who had been residing at Agriculture Farm of Arif Badrana for the last so many years had implicated all the accused at his instancce."
11. The prosecution has not been able to bring on record any ocular evidence which could connect the accused/respondents with the murder of the deceased nor there is any sort of circumstantial evidence against the accused in the field except the recovery of weapon of offence i.e. a 30 bore pistol, allegedly recovered on the pointation of the accused/respondent, Razimand, vide recovery memo, Ex. PW-5/1. The marginal witness to the aforesaid recovery memo, Sarzamin Khan, PW-5 has stated in his examination-in-cross that the place wherefrom the alleged recovery of pistol has been made was commonly used by the inmates of the house of one Akbar Khan, therefore, when the place of recovery of weapon of offence was admittedly neither an abandoned place nor a hidden one rather an open place then how for such long period it remained unnoticed and not spotted by anyone, as such, this element alone makes the very recovery of weapon of offence doubtful. Same was the case with another alleged weapon of offence i.e. a 30 bore pistol, allegedly used by the accused Asif. First of all, the said pistol was not recovered on the pointation of the accused/respondent, Asif rather it was produced to the police by Ayaz Mand, who is son of the accused/respondent, Razimand. It is also part of the record and as evident from the recovery memo, Ex. PW-1/2 that during the course of spot inspection, the Investigation Officer had recovered two empty shells from the venue of crime. The FSL report, Ex. PW- 11/20 is also not in line with the version of the prosecution qua the recovery of weapon of offence, whereby, it was reported that the two crime empties, allegedly recovered from the motorcar vide the aforesaid recovery memo, Ex. PW-1/2 were fired from pistol No. 66 and not from the pistol in question i.e. 31142644, therefore, the FSL report is of no use to the prosecution qua the guilt of the accused/respondent, which has rightly been disbelieved and discarded by the learned trial Court through the impugned order/judgment of acquittal. Even otherwise, when substantive evidence fails to connect the accused person with the commission of offence or is disbelieved, corroborative evidence is of no help to the prosecution as the corroborative evidence cannot by itself prove the prosecution's case. Hon'ble Supreme Court of Pakistan while giving its judgment in case titled "Muhammad Afzal alias Abdullah and others v. The State and others" reported as 2009 SCMR 639 has also expressed almost a similar view in para-12 of its judgment, which is reproduced hereunder for ready reference;
"After taking out from consideration the ocular evidence, the evidence of identification and the medical evidence, we are left with the evidence of recoveries only, which being purely corroboratory in nature, in our view, alone is not capable to bring home charge against the appellant in the absence of any direct evidence because it is well-settled that unless direct or substantive evidence is available conviction cannot be recorded on the basis of any other type of evidence howsoever, convincing it may be."
Hon'ble Supreme Court of Pakistan in its judgment rendered in case titled "Imran Ashraf and 7 others v. The State" reported as 2001 SCMR 424, has also observed;
"Recovery of incriminating articles is used for the purpose of providing corroboration to the ocular testimony. Ocular evidence and recoveries, therefore, are to be considered simultaneously in order to reach for a just conclusion."
In support of same ratio, further reliance may also be placed on the judgment reported as 2007 SCMR 1427.
12. As far as the medical evidence is concerned, needless to highlight that the medical evidence may confirm the direct or ocular account, if any, with regard to the set of injuries, kind of weapon allegedly used in the commission of offence and at least the nature of injuries, however, in the subject case when the occurrence is undoubtedly unseen and unwitnessed then evidentiary value of medical evidence qua the guilt of the accused/ respondents as a sole piece of corroboratory evidence cannot be given much weight. Reliance in this regard is placed on the case titled "Abdul Rashid v. The State" reported as 2019 PCr.LJ 1456, whereby it has been held that;-
"The medical evidence in this case has been furnished by PW-4 Dr. Nasreen Ahmad Tareen, Medical Officer, who has confirmed the unnatural death of deceased. However, the fact remain that medical evidence is only used for confirmation of ocular evidence regarding seat of injury, time of occurrence and weapon of offence used, etc. but medical evidence itself does not constitute any corroboration qua the identity of accused person to prove their culpability. Reliance in this regard can be placed on the case of "Muhammad Sharif and another v. The State" (1997 SCMR 866).
In context of the case in hand, the medical evidence has been furnished by Dr. Asad Ullah, he appeared in the witness-box as PW-10. In his examination-in-cross, he stated that he could not specify the distance qua the six injuries/wounds received by the deceased. He also stated that the injuries received by the deceased could be caused due to a pistol or revolver or rifle. Thus, prima facie, the medical evidence is not in line with the crime empties recovered from the spot coupled with the changing stances of the complainant-party, therefore, the same has rightly been discarded by the learned trial Court qua the guilt of the accused/respondents.
13. In view of the above, when neither any direct nor any circumstantial evidence is available on the face of the record, as such, the case of prosecution is full doubt all-around; therefore, the accused/respondents have rightly been extended the benefit of the doubt through the impugned order/judgment of acquittal, which is neither perverse nor arbitrary nor whimsical.
14. It is well settled, it is not essential at all to place reliance on multiple doubts coupled with multiple grounds to extend the benefit of doubt to an accused, even a single worth reliable doubt is sufficient enough to extend its benefit to an accused person as it is the cardinal principle of criminal administration of justice that let hundred guilty persons be acquitted but one innocent person should not be convicted. In the case of "Tariq Pervaiz v. The State" reported as 1995 SCMR 1345, the Apex Court has held as under;-
That the concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right.
Further reliance is placed on the case law cited as "Daniel boyd (Muslim name Saifullah) v. The State" reported as 1992 SCMR 196", where the following observations were recorded by the Apex Court;-
Nobody is to be punished unless proved guilty on the basis of reliable or true evidence. Benefit of every reasonable doubt is to go to the accused.
This view also reflects in the judgment of the apex Court titled as "Ghulam Qadir and 2 others v. The State" reported as 2008 SCMR 1221, wherein it was observed that:-
"Benefit of doubt. Principle of applicability. For the purpose of benefit of doubt to an accused, more than one infirmity is not required. Single infirmity creates reasonable doubt in the mind of a reasonable and prudent person regarding the truth of charge, makes the whole case doubtful."
In support of the same rational, further reliance is placed on the judgment of the august Supreme Court of Pakistan cited as "Muhammad Zaman v. The State" (2014 SCMR 749), wherein it was held that;-
Even a single doubt if found reasonable, was enough to warrant acquittal of the accused.
15. For the afore-stated reasons, the subject criminal appeal being bereft of any merits is hereby dismissed.
JK/192/P Appeal dismissed.