JUDGMENT SHEET
PESHAWAR HIGH COURT, [Link] BENCH
(Judicial Department)
Cr.A. No.03-D/2019.
Faiz Muhammad
Vs.
The State & another.
JUDGMENT
For Appellant: Muhammad Khurshid Qureshi,
Advocate.
For Respondents: Mr. Ilyas Ahmad Damani, Advocate for
the State & Mr. Ghulam Hur Khan
Baloch, Advocate for the complainant.
Date of hearing: 26.11.2019.
***
SAHIBZADA ASADULLAH, J.- This appeal is directed
against the judgment dated 10.01.2019, rendered by learned
Additional Sessions Judge-II, [Link], whereby the
appellant Faiz Muhammad, charged in case FIR No.174
dated 13.10.1994, registered under Section 302 PPC at
police station Parova, was convicted under Section 302(b)
PPC and sentenced to life imprisonment. He was also held
liable to pay Rs.10,00,000/- as compensation in terms of
Section 544-A, Cr.P.C. or in default thereof to further suffer
six months S.I. Benefit of Section 382-B, Cr.P.C. was also
extended to the appellant.
2. Facts of the case, as reflected from the FIR
Ex. PA, registered on the basis of murasila Ex. PW 4/1, are
that on 13.10.1994 at 2000 hours, complainant Riaz
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Hussain (PW-6) made report to the then SHO Police Station
Parova, in his house situated in village Miran, to the effect
that on the day of occurrence at about 1600 hours, he was
busy in fastening cattles in his house, in the meanwhile his
uncle Faiz Muhammad, duly armed with 12 bore shotgun
came there and made three fire shots upon his mother
Mst. Karmu, as a result thereof, she got hit and succumbed
to her injuries on the spot. The accused decamped from the
spot after commission of the offence. Besides the
complainant, the occurrence was stated to be witnessed by
brothers of the complainant Bilal Hussain and Kifayat
Ullah. Motive for the offence was stated to be a dispute
over women-folk. He charged the accused for the
commission of offence.
3. Initially, the accused absconded and
proceedings under Section 512, Cr.P.C. were conducted
against him and pursuant thereto he was declared
proclaimed offender by the trial Court. After arrest of the
accused and completion of the investigation, complete
challan was submitted against the accused to the learned
trial Court, where at the commencement of the trial the
prosecution produced and examined as many as eight
witnesses, whereafter, accused was examined under section
342, Cr.P.C., wherein he denied the allegations, professed
innocence and opted not to produce evidence in his
defence. After conclusion of the trial, the learned trial Court
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vide impugned judgment dated 10.01.2019, convicted the
accused and sentenced him as mentioned above, hence the
instant appeal.
4. We have heard arguments of learned counsel
for the parties and have gone through the record with their
valuable assistance.
5. It is the case of prosecution that on the day of
occurrence at the relevant time, complainant (PW-6) was
present in his house and was busy in fastening the cattles
when in the meanwhile, accused armed with 12 bore
shotgun entered into his house, made three fire shots upon
his mother Mst. Karmu, who got hit and died on the spot;
that besides the complainant the occurrence was witnessed
by his two brothers Bilal Hussain and Kifayat Ullah. In
view of the above explanation of the occurrence given by
the complainant, if we believe presence of three brothers at
the relevant time in their house, then it is against the normal
human conduct that all the three did not make any effort to
save the life of their mother and left her at the mercy of
accused. The question that being empty-handed they did
nothing to save their mother, would not prevail as it is
against the ordinary human prudence as nobody would like
to become a silent spectator and would let a person to kill
his/their mother. In view of the above, the observation in
impugned judgment in this respect cannot face the test of
judicious scrutiny for the reason that in ordinary course of
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events, even a brother would not let or spare another
brother or father to kill his mother, what to talk of close
relationship of the three brothers with the accused, before
whom their mother was allegedly killed by the accused.
The surprising aspect is that according to the prosecution
story, the accused made three fire shots with a single barrel
shotgun. If this was the situation, then admittedly, before
loading the shotgun for the second and third time, all the
three brothers, who were allegedly present on the spot, had
ample opportunity to have reacted and overpowered the
accused, but they remained silent spectators. In view of the
above, the story of prosecution advanced by complainant
Riaz Hussain and Bilal Hussain in their statements as PW-6
and PW-7, is unbelievable, which casts serious doubt
regarding their presence on the spot at the relevant time.
Complainant has also made dishonest improvement while
appearing in the witness box by saying that on the day of
occurrence he alongwith his brothers Bilal Hussain and
Kifayat Ullah were present in their house, as nothing of the
sort is mentioned in the initial report, rather it was stated at
the end of narration of the story that besides the
complainant, the occurrence was witnessed by his brothers
Bilal Hussain and Kifayat Ullah. Similarly, the other
alleged eyewitness Kifayat Ullah was not produced,
meaning thereby that best available evidence was withheld
by the prosecution and an adverse inference under Section
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129(g) of the Qanun-e-Shahadat Order, 1984, could be
drawn that had this witness been produced, surely he would
not have supported the prosecution case.
6. In the present case, the occurrence has
allegedly taken place on 13.10.1994 at 1600 hours, whereas
the report was lodged by the complainant at 2000 hours i.e.
with a delay of four hours notwithstanding the fact that the
distance between the crime village and the police station is
14/15 kilometers and no explanation whatsoever has been
tendered for such delay. Delay of four hours cannot simply
be brushed aside. In a recent judgment reported as Mst.
Asia Bibi Vs. The State and others (PLD 2019 S.C. 64),
the Honourable Supreme Court held that:
“In absence of any plausible
explanation, the Supreme Court had
always considered the delay in lodging
of FIR to be fatal and it casted a
suspicion on the prosecution story,
extending the benefit of doubt to the
accused---If there was any delay in
lodging of FIR and commencement of
investigation, it gave rise to a doubt,
which, could not be extended to anyone
else except to the accused”.
7. Another aspect of the case is the alleged
recovery of 12 bore shotgun from the house of accused
regarding which the separate FIR No.97 dated 22.7.1997
under Section 13 A.O. was registered. It is worth
mentioning that on 13.10.1994, vide recovery memo Ex.
PW 4/3, the Investigating Officer during spot inspection
had recovered three empty shells of 12 bore shotgun, but
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same were not sent to the FSL. The referred shotgun, as per
the statement of PW-5 and recovery memo dated 21.9.2016,
Ex. PW 5/1, was taken out from Malkhana. It surprised us
that the above referred shotgun and the empties were
received in the FSL on 04.10.2016, where it was opined
that those were not fired from the shotgun in question. It
creates serious doubt that where remained the empties from
the date of recovery and under the law, why those were not
sent to the FSL in time, rather same were kept till alleged
recovery of shotgun and were sent to the FSL after a
considerable delay, therefore, such recovery had lost its
sanctity and could not safely be relied upon for sustaining
conviction on a capital charge.
In a case titled Ghulam Akbar and another
Vs. The State (2008 SCMR-1064, it was observed by their
Lordships that law requires that empties recovered from the
spot should be sent to the laboratory without any delay,
failing which such evidence was not free from doubt and
could not be used against the accused. Even otherwise, this
piece of evidence is a corroborative one and in cases where
direct evidence fails, corroborative piece of evidence is of
no avail as in the instant case where direct evidence of PWs
have already been disbelieved. In this respect, case reported
as Muhammad Ashraf alias Acchu Vs The State (2019
SCMR 652), can also be referred.
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8. If we peruse the site plan Ex. PW 4/13, it
comes to mystery that neither pellets were recovered from
the spot, nor any pellet marks were noticed on or around the
point of the deceased despite the fact that the occurrence
had allegedly taken place in a house.
9. There is no two opinion about the fact that the
cardinal principle of justice always laid emphasis on the
quality of evidence which must be of first degree and
sufficient enough to dispel the apprehension of the Court
with regard to the implication of innocent persons
alongwith guilty one by the prosecution, otherwise, the
golden principle of justice would come into play that even a
single doubt if found reasonable would be sufficient to
acquit the accused, giving him/them benefit of doubt
because bundle of doubts are not required to extend the
legal benefit to the accused. Muhammad Akram Vs. State
(2009 SCMR 230), Muhammad Zaman Vs. State (2014
SCMR 749), Hashim Qasim Vs. The State (2017 SCMR
986), Muhammad Mansha Vs. State (2018 SCMR 772)
and Mst. Asia Bibi Vs. State (2019 PLD S.C. 64).
10. So far as abscondence of the accused is
concerned, it is not denied that abscondence alone cannot
be a substitute for real evidence because people do abscond
though falsely charged in order to save themselves from
agony of protracted trial and also to avoid duress and
torture at the hands of police. In the instant case,
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abscondence is meaningless, because it can neither remove
defects of the oral evidence, nor is by itself sufficient to
bring guilt home to the accused. Muhammad Sadiq Vs.
State (2017 SCMR 144), Muhammad Salim Vs.
Muhammad Azam and another" (2011 SCMR-474),
Rohtas Khan Vs. State (2010 SCMR 566), Muhammad
Sadiq Vs. Najeeb Ali (1995 SCMR 1632) and Muhammad
Arshad Vs. Qasim Ali (1992 SCMR-814). Needless to say
that absconsion is corroborative piece of evidence and in
cases where direct evidence fails, corroborative piece of
evidence is of no avail, as in the instant case.
11. Insofar as motive is concerned, same was not
proved by the prosecution through conclusive evidence on
record. It is now well settled that once the motive is alleged,
the prosecution is bound to prove the same, failing which
negative inference shall be taken against the prosecution.
In case reported as Muhammad Ashraf alias Acchu
Vs The State (2019 SCMR 652), it was held that:-
"The motive is always a double-edged
weapon. The complainant Sultan Ahmad
(PW9) has admitted murder enmity between
the parties and has also given details of the
same in his statement recorded before the trial
court. No doubt, previous enmity can be a
reason for the appellant to commit the alleged
crime, but it can equally be a reason for the
complainant side to falsely implicate the
appellant in this case for previous grouse."
We know that prosecution is not bound to
setup motive in every case but once it is alleged and not
proved, then ocular account is required to be scrutinized
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with great caution. It has been held in the case of
Hakim Ali Vs. The State (1971 SCMR-432), that the
prosecution though not called upon to establish motive in
every case, yet once it has setup a motive and failed to
establish it, the prosecution must suffer consequences and
not the defence. The above view has been reiterated in the
case of Amin Ullah Vs. The State (PLD 1976 SC 629),
wherein it has been observed by their lordships, that motive
is an important constituent and if found by the Court to be
untrue, the Court should be on guard to accept the
prosecution story. It was again re-enforced by the august
Supreme Court in the case of Muhammad Sadiq Vs.
Muhammad Sarwar (1997 SCMR 214). Again, on the
same principle, case laws titled Noor Muhammad Vs. The
State and another (2010 SCMR 997) and Amin Ali and
another Vs. The State (2011 SCMR-323) can also be
referred.
12. For the reasons mentioned hereinabove, we
allow this appeal, set-aside the impugned conviction and
sentence awarded to the appellant vide judgment dated
10.01.2019. Resultantly, the appellant is acquitted of the
charge levelled against him. He shall be released forthwith,
if not required to be detained in any other case.
13. Above are the reasons of our short order
announced on 26.11.2019, which reads as follows:-
“For reasons to be recorded later in the
detailed judgment, we allow this appeal, set
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aside the impugned conviction and sentence
awarded to the appellant Faiz Muhammad,
vide judgment dated 10.01.2019, passed by
the learned Additional Sessions Judge-I,
[Link]. Resultantly, appellant is acquitted
of the charge levelled against him in the said
case. He be released forthwith, if not required
to be detained in any other case. While Cr.M.
No.04-D/2019 stands dismissed for having
become infructuous”.
Kifayat/* JUDGE
JUDGE
(D.B)
Hon’ble Mr. Justice S.M. Attique Shah
Hon’ble Mr. Justice Sahibzada Asadullah
