JUDGMENT SHEET

PESHAWAR HIGH COURT, D.I.KHAN 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, D.I.Khan, 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
 - 10 -

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,
D.I.Khan. 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