This judgment will dispose of Criminal Appeal No, 1668 of 2002 filed by Muhammad Shafique, appellant who was convicted under Section 302(b) PPC and sentenced to undergo imprisonment for life with further direction to pay Rs, 50,000/- as compensation, in default six months SI by the learned Additional Sessions Judge vide judgment dated 31.8.2002.
Briefly stated the facts of the case are that at 7 p.m. on 8.10.2001 Noor Hussain alongwith his son Tanvir was going on a tractor and when both reached in front of house of Muhammad Aslam, all of a sudden from the back side of the tractor, Shafique climbed up the tractor from the plough attached with the tractor, snatched the licensed gun of Noor Hussain, complainant and during the scuffle, the complainant received injuries on his both hands. In the meanwhile Tanvir son of complainant alighted from the tractor but was fired at by Shafique hitting inner side of his left thigh, pierced and thereafter made exit from other side.
3. The investigation of the case was conducted by Muhammad Yar ASI (PW.9). He went to the spot, inspected the dead body of Tanvir, prepared injury statement Ex. PE, inquest report Ex. PF, also prepared injury statement of Noor. Hussain injured complainant, and took into possession the blood stained earth vide memo Ex. PJ. The investigation was partially conducted by Zafar Ali SI (PW.10). He arrested the accused on 11.10.2001 alongwith 12 bore double barrel gun which was secured vide memo Ex. PH. After completion of the investigation, the accused was challaned to face the trial.
4. At the trial, prosecution in order to prove its case produced 10 witnesses in all. Then the learned DDA tendered in evidence report of the Chemical Examiner Ex. PZ and closed the case of the prosecution. Statement of the accused was recorded u/S. 342 Cr.P.C. in which he pleaded false implication. To prove his innocence, the accused appellant also produced Rana Qamar Ali DSP as DW.1 and Azhar Hussain as DW.2 After conclusion of the trial, the accused was convicted and sentenced as stated above.
5. Learned counsel for the appellant submits that three persons were named as eye-witnesses in the FIR but only complainant Noor Hussain, who is father of the deceased Tanvir was produced before the trial Court. Further submits that both the parties are closely related inter se in as much as the deceased and the appellant are first cousins. Adds that had the appellant any intention to kill the deceased he must have come armed with weapon at the place of occurrence and that the weapon allegedly used in the commission of offence did not belong either to the complainant, the deceased but was in the name of Shakeel, another son of the complainant who was serving in Pakistan Army and posted at Peshawar at the relevant time.
Learned counsel submits that it is a case of two versions and if both the versions are put in juxtaposition, the version of the appellant seems to be more plausible and that the defence plea of the appellant was also found to be correct by DSP Rana Qamar produced as DW.1. As to recovery, learned counsel submits that gun was planted upon the appellant though the gun was produced by the appellant immediately after the occurrence before Muhammad Akram, lambardar (not produced).
6. Learned counsel for the State supports the judgment of the trial Court by stating that it is a case of promptly lodged FIR, ocular account is fully corroborated by medical evidence, parties are closely related to each other and that the DSP was examined as DW.1 had declared the appellant to be innocent by holding one sided investigation as also after submission of the challan before the trial Court. Further submits that the witnesses produced before the earlier Investigating Officer who challaned the appellant were not produced before the DSP, DW.1.
7. I have heard learned counsel for the parties and have gone through the record. The appellant and the deceased are closely related in as much as are first cousins inter se. According to FIR itself, the appellant was not armed with any weapon at the time of occurrence. The gun, which the complainant was carrying at the time of occurrence, did not belong either to complainant Noor Hussain or the deceased Tanvir but was in the name of Shakeel,-another son of the complainant serving in Pakistan Army and was posted at Peshawar at the relevant time.
In the FIR, three persons were named as eye-witnesses. Out of them, Maqbool and Aslam were given up and only Noor Hussain, father of the complainant was produced. The only evidence of Noor Hussain complainant remains in the field. There is no cavil to the proposition that conviction can be ordered or maintained on the solitary statement of a witness if it is corroborated by other evidence and has come from an unipeachable source but in the instant case when the appellant was empty handed and the fire arm was being carried out by the complainant party as there is defence version also, it will not be in the safer administration of justice to maintain the conviction.
At this stage, I would like to reproduce the defence taken by the appellant in his statement u/S. 342 Cr.P.C. which reads as under:-- "PWs are related inter se and due to which they deposed false against me. In fact on the day of occurrence the complainant Noor Hussain while having 12 bore double barrel gun of his son Shakeel and Tanvir deceased was driving the tractor and both were boarding on the tractor. When they reached near the chowk I was coming and after a turn I and the tractor came in front of each airier. At that time, Tanvir stopped the tractor and tried to snatch gun from Noor Hussain in order to fire at me and Noor Hussain was resisting so that Tanvir deceased may not fire at me. At that time, the butt of the above said gun was in the hand of Noor Hussain and Tanvir deceased was pulling the gun while holding it from the barrel side. Due to above said scuffle the trigger of the gun was pressed by Noor Hussain and the gun went off which hit Tanvir deceased accidentally. After this I felt apprehension that Noor Hussain complainant may not fire at me so I came forward and tried to snatch the above said gun from Noor Hussain when in. the meantime Basharat, Azhar, Arif and other persons of the village came at the spot and took the gun from Noor Hussain which was handed over to Akram Lambardar who produced the same to the Police and I appeared before the Police on the very next day of the occurrence alongwith above said version. Police in connivance with the complainant did not show my arrest on the above said date, which was shown later on. It was a false case against me, therefore, no PW of the village appeared against me before the Police or in the Court except Noor Hussain complainant who is responsible for the death of his son. The local Police was in league with the complainant and they did not bother to verify the investigation from SHO and SDPO. Later on, investigation was carried out by DSP/SDPO and a number of people of village appeared before the said DSP, who after thorough investigation found the above said facts correct. The complainant falsely implicated me in this to save his skin."
Having put both the versions in juxtaposition, one of the prosecution and other pleaded by the appellant, the version of the appellant in the facts and circumstances of the case seems to be more plausible and near to the truth.
The defence version of the appellant was found to be correct by Rana Qamar Ali, DSP (DW.1) who declared the appellant to be innocent. Unfortunately, neither the learned trial Court nor the appellant summoned Maqbool and Aslam who were given up, as CWs. Muhammad Akram, lambardar before whom the appellant produced the gun belonging to the complainant was also not produced by the appellant. The injury' on the person of the deceased was on his thigh. Had the appellant any intention to attack the complainant party, he must have come to the place of occurrence alongwith some weapon. It was a chance encounter between the appellant and the complainant party. There was no premeditation on the part of the appellant. After taking into consideration the evidence on record and hearing the arguments advanced from both the sides, I am of the considered opinion that case of the prosecution is doubtful and that of the defence is more plausible, convincing and near to the truth. So while extending the benefit of doubt, I accept the appeal filed by the convict appellant, set aside the conviction and sentence recorded against him by the trial Court and acquit him of the charge. The appellant is in jail and he shall be released forthwith, if not required to be detained in any other case.