PLJ 2024 Cr.C. (Note) 222
[Peshawar High Court, Bannu Bench]
Present: Ishtiaq Ibrahim and Sahibzada Asadullah, JJ.
SAID REHMAN etc.--Appellants
versus
STATE etc.--Respondents
Crl. A. No. 263-P of 2019 with M.R. No. 8-P of 2019,
decided on 7.11.2023.
Pakistan Penal Code, 1860 (XLV of 1860)--
--دفعات 302، 324، 427، 148 اور 149-- سزا اور جرم ثابت ہونا--اپیل برائے تنسیخ-- ہلاکتوں کی تعداد-- سوال-- کیا ملزمان کی تعداد کو بڑھا چڑھا کر پیش کیا گیا یا یہ کہ تمام ملزمان المناک واقعے کے یکساں طور پر ذمہ دار تھے-- تعین-- نہ تو ہلاکتوں کی تعداد عدالت کے ذہن پر اثر انداز ہونی چاہیے اور نہ ہی ملزمان کی تعداد، بلکہ عدالتیں اس بات کی پابند ہیں کہ وہ معاملے کی تہہ تک جائیں، جمع شدہ مواد پر غور کریں اور فائل پر موجود شواہد کی قدر کریں، بغیر اس کے کہ وہ ہلاکتوں کی تعداد اور ملزمان کی تعداد سے متاثر ہوں، بصورت دیگر، انصاف کے ضائع ہونے کا خدشہ ہمیشہ رہے گا، جس میں عدالتوں کو ملوث نہیں ہونا چاہیے۔
----Ss. 302, 324, 427, 148 & 149--Conviction and sentence--Challenge to--Number of casualties--Question of--Whether number of accused was exaggerated or that all accused were equally responsible for tragic incident--Determination--Neither number of casualties should influence mind of Court nor number of accused, rather Courts of law are under bounden duty to look into matter, to consider collected material and to appreciate evidence on file, without having been swayed by number of casualties and by number of accused charged, as in that eventuality, there would always and always be an apprehension of miscarriage of justice, in which luxury Courts of law should not indulge. [Para 6] A
2014 SCMR 749 ref.
Pakistan Penal Code, 1860 (XLV of 1860)--
----دفعہ 302، 324، 427، 148 اور 149-- سزا اور جرم ثابت ہونا--اپیل برائے تنسیخ-- عینی شاہدین کے بیانات-- شہادت کا جائزہ-- گواہان، موقع واردات پر گواہ استغاثہ کی موجودگی ثابت کرنے میں ناکام رہے-- طبی شہادت، عینی شاہدین کے بیانات سے متصادم تھی-- محرک-- ڈاکٹر کی رائے-- چونکہ تفتیشی افسر محرک کے سلسلے میں آزادانہ شہادت جمع نہیں کر سکا اور ملزمان کی تعداد، لگنے والی چوٹوں کی تعداد سے مطابقت نہیں رکھتی، لہٰذا ایسی صورت میں، مبینہ محرک اگر قتل کی وجہ بن سکتا ہے تو اسی وقت یہ غلط الزام تراشی کا سبب بھی بن سکتا ہے-- جب گواہ استغاثہ نے اپنی ساکھ کھو دی تو ایسی صورت میں غیر واضح فرار، ملزم کو مجرم قرار دینے کے لیے مشکل سے ہی کوئی وجہ ہو گا-- استغاثہ جرم ثابت کرنے میں ناکام رہا اور ٹرائل کورٹ نے حقائق اور قانون دونوں میں غلطی کی، جس کی وجہ سے متنازعہ فیصلہ صادر کیا گیا-- اپیل منظور کی جاتی ہے۔
----Ss. 302, 324, 427, 148 & 149--Conviction and sentence--Challenge to--Statements of eye-witnesses--Appreciation of evidence--Witnesses were failed to convince presence of PWs at time of incident--Medical evidence was in conflict with ocular account--Motive--Opinion of doctor--As investigating officer could not collect independent evidence in respect of motive and as number of accused do not commensurate with number of injuries caused, so in such eventuality, alleged motive if could be caused of killing, then at same time it can be caused for false implication--When PWs lost their credibility, then in that eventuality unexplained abscondance would hardly be a ground for holding accused guilty--Prosecution had failed to bring home guilt against and that trial Court fell into error, both on facts and in law, while handing down impugned judgment--Appeal is allowed. [Para 11, 12 & 13] C, D & E
Pakistan Penal Code, 1860 (XLV of 1860)--
-دفعہ 302، 324، 427، 148 اور 149- سزا اور جرم ثابت ہونا- اس کو چیلنج کرنا- عینی شاہد اور مدعی کا مقتول کو منتقل کرنے کے بارے میں تضاد- ڈاکٹر کی رائے- یہ حیران کن ہے کہ جب مقتول کو جسم کے مختلف حصوں پر سنگین چوٹیں آئیں تو وہ خود گاڑی میں کیسے سوار ہوئے اور وہ آتشیں اسلحہ سے زخمی ہونے کے بعد جائے وقوعہ سے گاڑی تک کیسے منتقل ہو سکے- عینی شاہد کی مدعی نے تردید کی ہے کیونکہ مدعی کے بیان کے مطابق اس نے مقتول کو جائے حادثہ سے اٹھانے میں مدد کی۔
----Ss. 302, 324, 427, 148 & 149--Conviction and sentence--Challenge to--Contradiction of eye-witness and complainant regarding shifting of deceased--Opinion of doctor--It is astonishing that when deceased received serious injuries on different parts of their bodies then how they boarded vehicle themselves and that how could they move, from place where they received firearm injuries, to vehicle--Eye-witness was contradicted by complainant as per statement of complainant he helped in picking up deceased then injured from spot. [Para 8] B
M/s. Abdul Fayaz, Khizar Hayat Khazana and Bashir Ahmad Khan, Advocates for Appellants.
Mr. Jalal-ud-Din Akbar Azam Gara, A.A.G. for State.
Mian Jamal Shah, Advocate for Complainant.
Date of hearing: 7.11.2023.
Judgment
Sahibzada Asadullah, J.--Through this single judgment, we are intending to decide the instant criminal appeal as well as the connected Criminal Appeal bearing No. 423-P/2020 titled “Said Rehman etc. vs. The State etc.” as both the matters are arising out of the judgments dated 26.03.2019 and 27.03.2019 passed by the learned Additional Sessions Judge-IV, Peshawar in case FIR No. 466 dated 26.08.2016 under sections 302/324/427/148/149 PPC of Police Station Regi, Peshawar, whereby appellants have been convicted and sentenced as under:--
i. Under section 302 (b) PPC, on three counts, as “Tazeer” for normal penalty of death with further direction to pay compensation of Rs. 1,000,000/- each to the legal heirs of all the three deceased in term of section 544-A Cr.P.C, which shall be recovered from them as arrears of land revenue. The convicts/appellants shall be hanged by the neck till declare dead subject to confirmation by this Court.
ii. The learned trial Court also convicted the appellants under section 324 PPC and sentenced them to undergo five years Rl with a fine of Rs. 30,000/- each or in default whereof to undergo 03 months SI and also under section 427 PPC for causing damage to the main gate of deceased and complainant’s house and sentenced them to undergo six months SI with a fine of Rs. 30,000/- or in default whereof to undergo 02 months SI.
iii. The learned trial Court further convicted the convicts/appellants under section 148/149 PPC and sentenced them to one year RI with a fine of Rs. 30,000/- each or in default whereof to suffer two months SI. All the sentences were ordered to run concurrently. Benefit under section 382-B Cr.P.C has been extended to the convicts/appellants.
2. Laconic facts of the prosecution case are that on 26.08.2018, the local police of the police station Regi, Peshawar, after receiving information qua the occurrence, went to Trauma Room of KTH Hospital, where complainant Fakhar-e-Alam (P.W-03) present with dead bodies of his brothers, namely, Zahoor, Alif Din and Roman, reported the matter to the effect, that on the eventful day he along with his deceased brothers, nephew Muhammad Atif and other housemates was present in his house and after hearing the fire shots, they rushed to the main gate of their house and when they opened the gate, Raran Khan, Naseeb Khan, Juma Khan and Kutab Khan sons of Muzafar, Shahid son of Kutab, Arab s/o Naseeb, Said Rehman s/o Qowat Khan, Hidayat and Sabat Khan sons of Said Rehman were present duly armed with firearms and on seeing them started firing at them with the intention to kill, as a result of which, Zahoor, Alif Din and Roman got hit and sustained fire arm injuries, whereas the complainant, Shams-ul-Abideen and his nephew Muhammad Atif escaped unhurt. Due to firing, main gate of their house also got damaged. The injured were hurriedly shifted to the hospital, but injured Zahoor, Roman and Alif Din succumbed to their injuries. The accused/appellants, after the commission of the offence, decamped from the spot while making firing. Motive for the occurrence as given in the FIR was the previous blood feud between the parties. It was on the report of the complainant Fakhr-e-Alam that the FIR was registered.
3. On arrest of the appellants and completion of investigation, challan was submitted before the Court of competent jurisdiction, charge was framed against the accused to which they did not plead guilty and wished for trial. As such the learned trial Court was pleased to direct the prosecution to produce its evidence. In order to prove its case, prosecution produced and examined as many as 11 witnesses, whereafter statements of the accused were recorded, where the accused professed their innocence, but did not opt to record their statements under section 340(2) Cr.P.C. On conclusion of trial, the learned trial Court held them guilty and as such they were convicted and sentenced, whereagainst they have filed the instant appeal.
4. The learned counsel for parties as well as the worthy Additional Advocate General were heard at length and with their valuable assistance the record was scanned through.
5. August 26th, 2016 was the bloodiest day, when three unfortunate souls lost their lives, the deceased (then injured) were shifted to the hospital, where the matter was reported. The injury sheets and inquest reports were prepared and the dead bodies were sent for the postmortem examination. The investigating officer, after receiving copy of the FIR, visited the spot and pointation of the complainant and the eye-witness, prepared the site plan. During spot inspection the investigating officer collected blood stained earth from the places of the deceased and 12 empties of 7.62 bore near from the places of one set of accused and 17 empties of the same bore from the other set of accused. The collected empties were sent to the laboratory and a report was received telling that the same were fired from different weapons. The accused soon after the incident went into hiding and it was on 12.07.2017 when the appellant Said Rehman was arrested, whereas the appellant Juma Khan was arrested on 16.02.2018 and the appellant of the connected criminal appeal i.e. Naseeb was arrested on 26.11.2021. When the appellant Said Rehman was arrested the charge was framed on 04.12.2017 and the prosecution produced some of its witnesses but when the appellant Juma Khan was arrested then the learned trial Court framed a joint charge on 18.04.2018 and as such the prosecution was directed to produce its evidence. On conclusion of the trial, the learned trial Court was pleased to convict and sentence the appellants vide the impugned judgment.
6. The learned trial Court took into consideration the material aspects of the case and also the evidence on file and thereafter held the appellants responsible for the murders of the deceased. The learned trial Court while handing down the impugned judgment highlighted the material aspects of the case and the statements of the witnesses were also taken into consideration. True that in the incident three persons lost their lives and equally true that the matter was reported by the complainant and the incident was witnessed by the complainant and others, but equally true that as many as 9 accused are charged and it is for this Court to see as to whether the number of accused has been exaggerated or that all the accused were equally responsible for the tragic incident. There is no denial of this fact that the incident occurred in front of the house of the complainant, but the complainant and the witnesses are still to prove that the incident occurred in the mode manner and at the stated time. We are confident in holding that neither the number of casualties should influence the mind of the Court nor the number of accused, rather the Courts of law are under the bounden duty to look into the matter, to consider the collected material and to appreciate the evidence on file, without having been swayed by the number of casualties and by the number of accused charged, as in that eventuality, there would always and always be an apprehension of miscarriage of justice, in which luxury the Courts of law should not indulge. Reliance is placed in case titled Muhammad Zaman vs. The State (2014 SCMR 749) wherein it is held that:
“The tragedy may have been enacted by Mukhtar who has gone into hiding or Munawar who has been acquitted because the deceased Shabbir was alleged to have illicit relations with their sister, but many who have no visible nexus with this part of the story have also been roped in. It is so because it is customary in this part of the country to throw wide the net of implication to rope in all those who could possibly pursue the case or do something to save the skin of the one who is innocent or who is actually responsible for the commission of the crime. The Court, therefore, is required to exercise much greater care and circumspection while appraising evidence. The testimony of the witnesses who are not only closely related to the deceased but have also a strong motive to falsely implicate the accused has to be scanned carefully. When scanned thus, it cannot be relied upon.”
7. The points for determination before this Court are as to whether the incident occurred in the mode, manner and at the stated time; as to whether these were the appellants and others who killed the deceased; as to whether the witnesses succeeded in establishing their presence on the spot; as to whether the matter was reported in the hospital or in the Police Station and as to whether the medical evidence supports the eye-witness account. The prosecution is further to convince, that it succeeded in bringing home guilt against the appellants. In order to resolve the controversy, we deem it essential to go through the statements of the eye-witnesses. The complainant was examined as P.W.03 who stated that on the day of incident he along with Zahoor Ali, Alif Din, Roman Ali, Shams-ulAbideen and Muhammad Atif were present in the house; on hearing the firing, he along with the eye-witnesses and the deceased rushed towards the main gate and on opening the gate they saw the accused duly armed who started firing at them; as a result of the firing, Zahoor Ali Alif Din and Noman Ali sustained injuries who succumbed to their injuries and died on the way to the hospital. The eye-witness was examined as P.W.4 who supported the report of the complainant and also disclosed the manner in which the incident occurred. The witnesses were cross-examined on material aspects of the case with an attempt to extract something favourable to the defence. It is interesting to note that out of the witnesses only the complainant accompanied the deceased (then injured) to the hospital and reported the matter. No eye-witness including P.W.4 accompanied the dead bodies of the deceased to the hospital. The complainant was examined on the material aspects of the case more particularly, the manner in which they heard the fire shots, the manner they rushed to the main gate of the house, the manner in which they were fired at and the manner in which the dead bodies were collected from the spot, shifted the hospital and the matter was reported. The record tells and so admitted by the complainant that while going to the hospital Police Station Regi, Police Station Nasir Bagh and Police Station University Town fall in the way, but the complainant did not report the matter in the Police Station, rather the dead bodies were shifted to the hospital. The distance between Police Station Regi and the spot is shown as 2½ kilometer, but surprisingly, the report was not made in the very Police Station despite the fact that the doctor disclosed the death as immediate. It is interesting to note that the matter was reported to one Saleem Khan SI who took it in the shape of murasila, whereas the injury sheets and inquest reports were prepared by one Amjad Ali SI, in the Khyber Teaching Hospital, but none of these witnesses were posted in the Casualty of the hospital, rather their attendance was procured when the information was conveyed to the Police Station. The record further tells that Saleem Khan Sl was posted at PP Shagai and Amjad Ali ASI was posted in Police Station, Regi. When both the witnesses were posted at different stations then how the two reached to the hospital at one and the same time. Saleem Khan was examined as P.W-07 who disclosed that on the day of incident he was posted in Police Post Shagai; he received information from the Police Station; he rushed to the hospital where he found the dead bodies and the complainant reported the matter. This witness was cross-examined who disclosed that at the time receiving information he was at a distance of 6/7 kilometer from the hospital and the moment he received the information he rushed to the hospital, where the matter was reported and Amjad Ali ASI prepared the injury sheets and the inquest reports. This witness did not mention that he and P.W. Amjad Ali were posted in the same police post and that at the time of receiving information P.W. Amjad Ali was also present with him. This is astonishing that how the two witnesses came to the hospital, at one and the same time and that how P.W Saleem could reach to the hospital within the shortest possible time, as the incident occurred at 10:30 AM and the matter was reported at 11:30 AM. When the time of occurrence and the time of report is taken into consideration, it tells otherwise of the presence of the scribe, as it was the scribe who disclosed that at the time of receiving information he was at a distance of 6/7 kilometer from the hospital. P.W Amjad Ali when appeared before the learned trial Court disclosed that he along with P.W. Saleem Khan came to the hospital from the Police Station and that it was on the instructions of P.W. Saleem that he prepared the injury sheets and inquest reports. When the presence of these two witnesses is taken into consideration it belies the manner in which the dead bodies were shifted to the hospital and the matter was reported. The complainant in his Court statement disclosed that after reporting the matter in the hospital, he went to the Police Station and on his information the FIR was registered. When the statements of the scribe, the complainant and P.W Amjad Ali are placed in juxtaposition, no ambiguity is left that the matter was reported in the Police Station and thereafter the dead bodies were shifted to the hospital. In order to resolve the controversy we deem it essential to go through that portion of the statement of the complainant where he disclosed that he asked the attendance of his brother Jehangir and his uncle Tawas Khan in the hospital, from the village. When the inquest report was prepared soon after the matter was reported, then the presence of one Jehangir and Tawas Khan does not appeal to a prudent mind. As the report was made, soon after the incident, that too after covering a distance of 06 kilometer, so the presence of the identifiers at the time of report failed to convince this Court and it also tells otherwise regarding the manner of report. The complainant even at the time of arrival to the hospital could not collect an OPD chit and the same was never placed on the file. Though the complainant in his Court statement disclosed, that on reaching to the hospital an OPD chit was obtained, had that been so, then the same must have been placed on file, but its absence tells that the dead bodies were never brought to the hospital in the stated manner. As the doctor confirmed that soon after receiving firearm injuries the deceased died on the spot, so there was every possibility that the dead bodies were taken to the Police Station and the matter was reported. When the statements of all the three witnesses are read in juxtaposition, no ambiguity is left that the dead bodies were brought to the Police Station and the matter was reported.
8. This is for the complainant to tell that when besides him other male members of the family were also present, at the time of occurrence, then why rest of the male members did not accompany the dead bodies to the hospital and that why the complainant accompanied alone. The eye-witness was examined as P.W.4 who also supported the report of the complainant, but he disclosed that soon after the incident a vehicle was arranged, the deceased then injured boarded in the vehicle and the complainant accompanied them to the hospital. This explanation of the eye-witness does not appeal to a prudent mind, had he been present, he under all circumstances would have accompanied the deceased then injured to the hospital. The eye-witness and the complainant contradicted each other regarding the shifting of the deceased then injured from spot to the hospital, the complainant disclosed that the deceased were shifted to the vehicle with the help of the co-villagers, but the eye-witness disclosed that after receiving firearm injuries the deceased then injured boarded into the vehicle by themselves. It is astonishing that when the deceased received serious injuries on different parts of their bodies then how they boarded the vehicle themselves and that how could they move, from the place where they received firearm injuries, to the vehicle. The eye-witness was contradicted by the complainant as per statement of the complainant he helped in picking up the deceased then injured from the spot. The witnesses are belied by the opinion of the doctor, as the doctor disclosed the time between injury and death as immediate. The circumstances of the case do not support the eye-witness account, as the complainant stated that after hearing fire shots in the street, the deceased and the witnesses rushed to the main gate, when the gate was opened they were fired at. We are anxious to note that what for the accused fired in the street, when the deceased and the complainant had yet not reached to the main gate and the gate was not opened. It further surprised us that at the time of firing the complainant and the witnesses were standing just behind the deceased, but they did not receive a single firearm injury and even the bullet exiting from the bodies did not cause any harm to them. The circumstances in which the complainant explained the situation failed to convince, and even the firing made by as many as 09 accused. The accused were shown at two different places, one set of accused is shown present in the field in front of the gate of the complainant, whereas the other set of accused in another field, situated towards West, containing a fully grown crop of man’s height. This is for the complainant to tell that while standing inside the main gate of the house, how he could see the accused present at point No. 12 to 15, as they were not visible from the places where the witnesses were standing and their identity is the subject of discussion, as they were present inside the fully grown crop. The presence of the witnesses is further belied by the fact, that when the main gate was opened, the firing was made, then how the bullet holes were found on the gate, as at the time of firing the same was open. The blood was recovered from points A, B, C and interestingly, point A is situated in the field, where one set of accused was standing. The complainant and the investigating officer explained the presence of blood in an unusual manner. The complainant disclosed that after receiving firearm injuries in the main gate of the house, the deceased (then injured) were put in a vehicle, the blood oozed from their bodies at the stated places. If the deceased received firearm injuries in the main gate of the house, then under all circumstances, the blood must have been recovered therefrom, but absence of blood from the main gate of the house is circumstance which belies the stance of the complainant and confirms that the deceased received injuries at points A, B and C and after receiving firearm injuries they fell to the ground, that is why the investigating officer collected blood from their respective places. At the time of spot inspection apart from the regular police, some officials from the political administration were also available, as the premises from which the blood and empties were collected was located in the Federally Administered Tribal Areas. This question was agitated time and again and it was submitted that when admittedly, the accused, the empties and the blood were found in the tribal territory, then in that eventuality, neither the registration of the FIR was competent, nor the learned trial Court was competent to have decided the fate of the appellants. We are not convinced with what the learned counsel for the appellants submitted, as it was the complainant who stated that the deceased received firearm injuries in the main gate of the house and admittedly, the place where they were done to death is not situated in the tribal territory and when so then the regular police as well as the Courts of law were competent to investigate and to decide the matter. Had the case been otherwise then the submissions of the learned counsel would have some force in it, but when the complainant disclosed the events in a different manner, then we don’t see any need to dilate upon that particular aspect of the case. It was the complainant and the eye-witness who twisted the facts and it was a conscious attempt to shift the tragic incident from point A, B and C to the front of the main gate of the house, so that the local police and the established Courts would be competent to assume the jurisdiction. The deviation of the complainant from the natural course and shifting of places of the deceased from point A, B and C to the main gate of the house though brought the matter within the competence of the local police, but at the same time it damaged the prosecution case beyond repair, as the absence of blood from the main gate of the house is a circumstance which cannot lightly be ignored. We are confident in holding that the incident did not occur in mode, manner and at the stated time. Reliance is placed on case titled “Ali Sher and others vs. The State (2008 SCMR 707), which is reproduced herein below:
“The two eye-witnesses not being independent and natural witnesses of the occurrence; infirmities having been found in the prosecution case and doubts having crept into the prosecution version of the occurrence; the possibility of occurrence having gone unwitnessed and no independent corroboration being available in support of the ocular testimony, it cannot be said that the prosecution had succeeded in proving the guilt of the two convicts beyond all reasonable doubts.”
9. For the death of the deceased, 09 accused including the appellants are charged and from the place of incident as many as 29 empties were recovered, if the accused were armed with sophisticated weapons and the purpose was to eliminate the adversary, so in that eventuality, numerous empties would have been recovered from the spot and apart from the deceased, the complainant and the eye-witnesses would have also received fatal injuries, but the circumstances tell another story. The injuries on the dead bodies of the deceased when taken into consideration, these do not commensurate with the number of accused and the same suggest that the number of accused has been exaggerated. It is pertinent to mention that some of the accused are the residents of one village, whereas the others belong to another village, so their coming together with the same purpose does not inspire confidence, despite the fact that an attempt was made to convince that both set of accused had joint enmity with the complainant party. When the witnesses failed to convince their presence at the time of incident, when the complainant admitted, that from the hospital he accompanied the police to the Police Station and on his report the FIR was registered, then this Court is inclined to hold that the matter was reported not in the hospital, but at the Police Station. When while reaching to the hospital the deceased were to pass through three different Police Stations, so it confirms that the matter was reported in Police Station Regi, as P.W Amjad Ali was posted in the same Police Station and it was he who prepared the injury sheets and inquest reports. As discussed earlier, the arrival of P.W Amjad Ali and P.W Saleem Khan to the hospital from different stations at the same time is a circumstance which failed to convince that the matter was reported to P.W Saleem Khan and that the injury sheets and inquest reports were prepared by P.W. Amjad Ali. P.W. Amjad Ali disclosed in his Court statement that he along with P.W. Saleem Khan went to the hospital from the Police Station. When the very report is shrouded in mystery and when the identifiers were facilitated to approach and identify the dead bodies of the deceased, then in that eventuality this Court is confident in holding that the matter was reported after consultation and deliberation and that preliminary investigation was conducted in the case.
10. The medical evidence is in conflict with the ocular account. Had the deceased received firearm injuries in the main gate of the house, then the deceased would have received the maximum number of injuries on their chest with its’ exit on their back, but the medical evidence and the post mortem report tell another story. We are surprised that when the firing was made soon after the gate was opened, then how the deceased received maximum number of injuries on their back and that why the deceased did not receive injuries on the left, as left side of the bodies of the deceased was exposed to that set of accused who, were present to the west of the house. The time between injury and death is another circumstance which does not support the eye-witness account, as according to the complainant the deceased breathed their last when they reached near the hospital, whereas the doctor confirmed the death as immediate. There is an open conflict between the medical evidence and the ocular account. True that medical evidence is confirmatory in nature and in presence of trustworthy and confidence eye-witness account, the same plays a little role, but once the witnesses fail to convince their presence on the spot and once the credibility of the witnesses is shattered, then in that eventuality the conflict between the two would be a factor to be taken into consideration in favour of the accused and the present case is no exception. The conflict between the medical and ocular account has been answered by the Apex Court in case titled Najaf Ali Shah vs. The State (2021 SCMR 736), it is held that:
“The same view was reiterated in Abdul Jabbar v. State (2010 SCMR 129) when this Court observed that once a single loophole is observed in a case presented by the prosecution, such as conflict in the ocular account and medical evidence or presence of eye-witnesses being doubtful, the benefit of such loophole/lacuna in the prosecution’s case automatically goes in favour of an accused.”
11. The motive was stated to be the previous blood feud between the parties and in that respect copy of the FIR No. 559 of the same Police Station was placed on file, where two of the deceased were charged for the tragic incident, and one of the accused i.e. Hidayatullah also received injuries in the episode, it was he who reported the mater. May be the present episode was the aftermath of the earlier registered case, but as in this particular case two set of accused belonging to different villages, are brought together, so in our understanding the attempt was to settle the score once and for all, by implicating all male members of the families. As the investigating officer could not collect independent evidence in respect of the motive and as the number of accused do not commensurate with the number of injuries caused, so in such eventuality, the alleged motive if could be the cause of killing, then at the same time it can be the cause for false implication. Reliance is placed on Muhammad Ishaque vs. The State (2007 SCMR 108) which reads as under:
“Corroboration is sought from the motive but, as the aforesaid background would suggest, it can cut both ways and can equally be at motive for false charge”.
12. The incident occurred in the year 2016, but the appellants were arrested in the year 2017 and 2018 respectively, they could not give any plausible explanation for their abscondance, but that alone would not be sufficient to hold them responsible for the murders of the deceased. As the eye-witness failed to convince their presence on the spot and the witnesses could not resist the searching cross-examination, not only in respect of the manner in which the incident occurred, but also in respect of the manner the dead bodies were shifted and the matter was reported. When the witnesses lost their credibility, then in that eventuality the unexplained abscondance would hardly be a ground for holding the appellants guilty. As is held by the Apex Court in case titled Muhammad Tasaweer vs. Hafiz Zulkarnain and 2 others (PLD 2009 Supreme Court 53), which reads as follows:
“Adverting to the question of abscondence, it may be stated that mere absconsion is not conclusive proof of guilt of an accused, person. It is only a suspicious circumstances against an accused that he was found guilty of the offence. However, suspicions after all are suspicions. The same cannot take the place of proof. The value of absconsion, therefore, depends on the facts of each case. The Courts have admitted it as a supporting evidence of the guilt of accused. The absconsion of the accused may be consistent which is to be decided keeping in view overall facts of the case. In the instant case, the respondents appeared before the investigating officer of their own and they were not arrested.”
13. The cumulative effect of what has been stated above leads this Court to an irresistible conclusion that the prosecution failed to bring home guilt against the appellant and that the learned trial Court fell into error, both on facts and in law, while handing down the impugned judgment. The impugned judgment is finding no support from the record of the case, the same calls for interference. The instant criminal appeal is allowed, the appellants are acquitted of the charge, they shall be released forthwith, if not required to be detained in connection of any other criminal case.
The Murder Reference, sent by the learned trial Court, for confirmation of death sentence of convict is answered in the negative. Above are the detailed reasons for our earlier short order of even date.
(A.A.K.) Order accordingly
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