Qazi Ehsanullah Qureshi, J.--Through this single judgment we proposed to' dispose of the present appeal (Criminal Appeal No, 573/2003) filed by Quresh convict-appellant against his conviction and sentence awarded to him by the learned Additional Sessions Judge/Judge Special Court, Mardan at Takht Bhai dated 2.9.2003 for the charge of committing the murder of Bawar Khan deceased and attempted' at the life of Fazal-eWahab complainant as well as the connected Criminal Revision No, 123/2003 filed by Fazal-e-Wahab complainant for the enhancement of the sentence imposed upon the appellant.
2. The prosecution case unfolded in the F.I.R. is that on the day of occurrence i,e, 14.12.1994 at 12:30 hours Fazal-e-Wahab complainant (PW. 10) alongwith his relative Bawar Khan deceased were proceeding from their village to Tangi Charsadda on a Motor Cycle being driven by Bawar Khan deceased and the complainant was occupying the rear seat, when reached near the place known as Takkar Road Adda Tangajaat, the accused namely Quresh (the present appellant), Wahid, Jehangir and Hassan duly armed with deadly weapons already present there, started firing at them with which the complainant and Bawar Khan sustained injuries. Regarding motive the complainant stated that he was engaged to Mst. Zeenat daughter of wawa Khan on which the accused party was annoyed. Besides the complainant the occurrence was witnessed by Bawar Khan deceased (then injured) and Malik Aman son of Ahmad Shah (brother of the deceased).
3. Israeel Retired Head Constable (P.W. 4) after recording the report of the complainant Ex.PA/1, prepared his injury sheet Ex.PE as well as the injury sheet of Bawar Khan deceased then injured Ex.PE/1 and sent both of them for medical treatment. The injured Bawar Khan succumbed to his injuries and the said Head Constable also prepared his inquest report Ex.PE/2 and referred his dead body for post mortem examination.
4. After completion of procedural formalities challan against arrested accused namely Abdul Wahid and Abdul. Hassan was submitted who were tried and convicted and sentenced.
5. A that time the convict-appellant Quresh was absconding and after his arrest supplementary challan against him was also put in Court for his trial.
6. On 21.3.2002 the appellant was formally charged to which he pleaded not guilty and claimed trial. In order to prove its case against the convict-appellant, the prosecution examined as many as fourteen witnesses. After the close of the prosecution evidence the convict-appellant was examined under Section 342 Cr.P.C. He did not examine himself on oath as provided under Section 340(21 Cr.P.C. as well as did not want to lead any defence evidence.
7. At the conclusion of the trial the learned trial Judge vide his judgment dated 2.9.2003 found the appellant guilty under Section 302(b) PPC and sentenced him to life imprisonment and to pay Rs, 100,000/- as compensation under Section 544-A Cr.P.C. or in default to suffer further six months S.I.
He was also convicted under Section 324 PPC and sentence to seven years R.I. with a fine of Rs, 50,000/- or in default to undergo further six months S.I. Both the sentences were ordered to run concurrently with benefit of Section 382-B Cr.P.C.
8. We have anxiously considered the arguments of the learned counsel appearing for the parties in the light of the evidence direct and circumstantial available on record.
9. It is an established principle of law that a Court while convicting an accused person for an offence particularly in a case in which capital sentence is provided for, have to be fully convinced that the accused facing trial is the only person responsible for committing the offence and that there is not even the slightest doubt about their false implication. This yard stick in view, we have to scan the evidence to find out whether the prosecution has been able to bring home the charge to the appellant without any shadow of doubt. The instant case mainly hinges on the statement of Fazal-e-Wahab complainant (P.W. 10). He is admittedly the brother-in-law of Bawar Khan deceased to whom the sister of the complainant was married. He consequently falls in the category of interested witness and his testimony had to be scrutinized with great care and caution before it could be made the basis for the conviction of the appellant. While appearing as P.W. 10 Fazal-eWahab complainant deposed in Court statement that he was summoned by the deceased to accompany him to Charsadda to attend a. funeral ceremony at Utmanzai Charsadda but this fact has not been mentioned in his report. He further stated that he was first transported in a Datsun Pickup to the police station where he was directed to be taken to the Hospital while Sardar Muhammad P.W. 9 who registered the case on receipt of murasila stated that he was present in the police station prior to registration of the case and no .one had come to the police station to inform him regarding the occurrence in the police station. He only came to know about the incident when he reduced the murasila into F.I.R. The complainant has stated in the report as well as in his Court statement that all the four accused have started firing at them due to which he and the deceased was hit. This version is in conflict with the testimony of the medical officer who conducted the post mortem examination on the dead body of the deceased. According to the medical evidence there was only one entry wound on the body of the deceased. The complainant has charged four persons for indiscriminate firing but no empty or spent bullet was recovered from the spot.
10. Needless to emphasize that in cases of like nature based on a solitary interested witness, the prosecution is required to produce independent corroborative evidence, direct or circumstantial, before reliance can be placed on the deposition of such solitary witness. In the instant case we do not find any independent corroboration of unimpeachable character. The circumstantial evidence does not support the prosecution version rather it is in direct conflict with the same.
11. The main stress of the learned counsel for the appellant is that the two co-accused of the appellant charged in the F.I.R. having been attributed the same role regarding the same occurrence were convicted and sentenced by the trial Court which was maintained and upheld upto the August Supreme Court of Pakistan, as such the case of the appellant is also at par with his co-accused and he is rightly convicted and sentenced by the trial Court and is not entitled to any leniency. Suffice it to say that during the trial of the co-accused of the appellant except the complainant Fazale-e-Wahab no one has furnished the eye account of the incident. We have gone through the judgment of the August Supreme Court of Pakistan dated 29.5.2000 the relevant portion of which is reproduced as under:-- "The case when called none appeared to represent the appellants in Cr.A. No, 73/2000, nor there was any intimation/request for adjournment, but we thought it proper to decide the case on merits.
The appellants have been convicted on the basis of ocular account furnished by Fazle Wahab, as injured eye-witness. It was found that the said witness was truthful and his testimony was confidence.
12. The most important and distinguishable feature in the instant case is that Malik Aman brother of Bawar Khan deceased and whose name is mentioned in the F.I.R. by the complainant himself as an eye-witness of the occurrence has appeared in the case as P.W. 8 for the first time. This eyewitness was earlier abandoned by the prosecution during the trial of the co-accused of the appellant on the ground that be being related to the complainant and is also the brother of the deceased and his statement is similar in all respects to the testmony of the complainant Fazle Wahab. Now he has been produced by the prosecution itself who deposed that the deceased Bawar Khan was his brother while sister of Fazal-e-Wahab complainant was married to the deceased. On the day of occurrence he went to the shop of the complainant who was not present there, therefore, he came and while standing on the road side he saw his deceased brother and the complainant coming on a motor-cycle. He also saw a person coming out from the crowd as it was a chowk and there was a rush of people. The said person fired at them as a result of which both were hit. This witness boarded a Suzuki and took them to the Civil Hospital. Mardan. He clearly stated that Fazal-e-Wahab complainant had not lodged the report in his presence and he does not charge the accused facing trial for the murder of his brother. This witness who is the brother of the deceased has been produced by the prosecution itself. His name has been mentioned in the F.I.R. as an eyewitness, therefore, he appears to be truthful witness. According to the learned counsel for the complainant that this witness has been won over by the accused. It does not appeal to mind because if this witness was won over by the appellant then why he has been produced as prosecution witness. The prosecution could have requested the trial Court to declare him as hostile and then could have cross-examined him.
13. The other piece of evidence against the appellant is motive which is not proved positively by examining any evidence in this context. Moreover, the motive is double-edged weapon which cuts both ways. With regard to the absconsion, suffice it to say that even innocent person may go into hiding due to fear of unjustified harassment and victimization at the hands of the police. Moreover, it is too axiomatic to be stressed that absconsion at the most can be taken as corroborative of the charge and not the evidence of the charge.
14. Taking into consideration the over all facts and circumstances of the case and the evidence brought on record, we are of the considered opinion that the prosecution had failed to prove its case against, the appellant Quresh beyond any shadow of doubt. So, while accepting the appeal we set aside the conviction and sentences recorded against the appellant Quresh be the learned Additional Sessions Judge/Judge Special Court, Takht Bhal dated 2.9.2003 and acquit him of the charges levelled against him. He be set at liberty forthwith if not required to be detained in any other case. The connected Criminal Revision No, 123 of 2003 stands dismissed.