Appellant Rizwanullah was tried by learned Additional Sessions Judge, Peshawar on the allegations of having, on 8.5:2002, in furtherance of his common intention with absconding co- accused Rafiq, Nadir Khan and others, attempted at the life of complainant Zaheerullah by firing at him effectively. At the conclusion of trial vide judgment dated 17.6.2004, the appellant was convicted under Section 324/34 PPC and sentenced to suffer 5 years R.I. with a fine of Rs, 10,000/- or in default thereof to undergo further S.I. for six months. The appellant was also directed to pay Rs, 15000/- as `Arsh to the complainant. The benefit of Section 382-B Cr.P.C. was, however, extended to the appellant.
2. Questioning the legality of his conviction and sentence the "appellant has filed instant Cr. Appeal No, 577/2004 through Superintendent Central Jail, Peshawar.
3. The crime in question is alleged to have taken place on 8.5.2002 ,at 8.30 a.m. near Roedad Shah Plaza in the precincts of. Police Station Gulbahar Peshawar and the matter was reported to the police the same day at 10.15 a.m. in the Emergency Ward of Lady Reading Hospital, Peshawar. The report was recorded by ASI Zarman Shah (PW.2).
4. Case of the prosecution in brief is, that on the day of occurrence complainant Zaheerullah was on the way to his shop. When at about 8.30 a.m. he reached near the venue of occurrence, in the meanwhile Rafiq, Rizwanullah, Nadir Khan and another unknown person duly armed emerged at the spot and started firing at the complainant as a result of which the complainant sustained injuries on his back, ribs and other parts of the body. It was disclosed in the report that with the firing of the accused persons one of their companion namely Rizwanullah also received injuries. PW Haji Sultan brother. of the complainant and many others were stated to have witnessed the occurrence. The motive leading to the incident was said to be a dispute between the complainant and his brother Nadir Khan absconding co-accused, over distribution of ancestoral property.
5. The prosecution in support of its case produced 10 witnesses in all. The accused in his statement recorded under Section 342 Cr.P.C. denied the prosecution allegations and claimed to have been falsely charged. In answer to a question as to what is your statement and why are your charged, he stated: "I am innocent and falsely implicated in the case being friend of Nadir Khan absconding accused, and also the complainant party attempted at my life during the cross firing between thee brothers, as a result of which I sustained injuries on my person from the fire shots of complainant Zaheerullah. I was ui..der treatment in the hospital the sufficient time, and I filed a complaint against the complainant party u/S. 324 PPC but the same was filed for non-prosecution because I was in jail."
The accused produced no evidence in his defence.
6. Considering the material on record, learned trial Judge believed the prosecution story and convicted and sentenced the appellant as mentioned and detailed above.
7. Mr. Aftab Khan, Advocate for the appellant maintained that the prosecution has lawfully failed to establish case against the appellant beyond any shadow of doubt; that the prosecution evidence is pregnant with innumerable infirmities, and real doubts of substantial nature, float on the surface of the evidence; that the learned trial Court has not properly appreciated the evidentiary value of the testimony of interested witnesses; that the motive is too weak and has not been proved satisfactorily; that the appellant also sustained injuries during the cross firing between the complainant and his brother Nadir Khan co-accused which have been suppressed with sinister purpose and that no independent and disinterested witness has been produced to lend strength to the prosecution version.
8. Mr. Umer Zafran, Advocate appearing on behalf of the State assisted by Mr. Imdad Hussain Adil, Advocate for the complainant, on the contrary, supported the impugned judgment whole heartedly and contended that the trial Court had done the weighment of the evidence strictly .in accordance with cardinal principles regarding appreciation of evidence. The evidence has been appreciated in its true perspective. Motive has been sufficiently explained by both the witnesses in their statements. The reasons recorded by the trial Judge in the impugned judgment are not only correct and proper but also free from the taint of artifice, caprice or perversity so as to call for interference.
9. It is a known and settled principle of law that prosecution primarily is bound to establish guilt against the accused without shadow of reasonable doubt by producing trustworthy, convincing and .coherent evidence enabling the Court to draw conclusion whether the prosecution has succeeded in establishing accusation against the accused or otherwise and if it comes to the conclusion that the charges so imputed against the accused have not been proved beyond reasonable doubt, then the accused becomes entitled for his release on getting benefit of doubt in the prosecution case.
The requirement of the criminal law is that the prosecution is duty bound to prove its case beyond any reasonable doubt and if any single and slightest doubt is created, it must go to the accused and is sufficient to discredit the prosecution story and entities the accused for acquittal.
10. I have heard at length the arguments of learned counsel for the parties and have also perused the record of the case with their assistance. I find that the case against the appellant is totally of no evidence and the learned trial Judge has failed to apply his judicial mind to the facts of the case.
The manner in which the trial Judge has proceeded in the case is violative of the principles governing safe administration of criminal justice. Conviction can be based on the evidence which connect the accused person with the offence beyond any reasonable doubt and in reaching this conclusion evidence has to be of high quality and good standard. It may be noticed here that the complainant stated at the trial that when he reached the spot, he received firing on back and lost senses on account of injuries. He also admitted that he was fired at from behind and had not seen the accused firing at him. This aspect of the case appears to have escaped notice of the learned trial Judge. So far as the testimony of Haji Sultan PW is concerned, I find that claim of this witness having accompanied the complainant and seen the occurrence stands belied by host of circumstances. He is an interested witness and has reason for false implication. No implicit reliance can be placed on his testimony. I am confident that he was not present at the spot and had not seen the occurrence. It appears that on receipt of information, he reached the site of occurrence and took his injured brother to the hospital. Needless to emphasize that if a version suffers from a taint of B exaggeration or does not fit in with the surrounding circumstances, it will not merit blind and uncritical credence simply because it flowed from the mouth of a witness who has no interest or enmity to falsely implicate the appellant. The occurrence having taken place at 8.30 a.m., the matter was reported to the police at 10.30 a.m. There is some delay in lodging of the FIR which has not been unexplained. The possibility of consultation and deliberation cannot be excluded in the circumstances of the case. It may not be out of place to mention here that the occurrence took place at broad day light in a thickly populated area but no independent and disinterested witness from the locality has been produced in support of the prosecution story. Malik Aman, a cousin of the complainant stated to have joined the complainant party at the crucial time has not been cited as a witness which goes to the root of the prosecution case. It is well settled principle of law that if a best piece of evidence is available with the party and the same has been withheld, then it is fair to presume that had he been examined in the case, he would have not supported the prosecution case. It is true that prosecution is not bound to produce all the persons who have seen the occurrence, however, if a material witness is withheld then the reference is to be drawn against the prosecution that such a witness was not supporting the case of the prosecution. As regards injuries on the person of the appellant, according of the appellant injuries were received by him in consequence of cross firing between the complainant and his brother Nadir Khan absconding co- accused. The factum of cross tiring has been denied by the prosecution. The injuries have not been explained. I feel that injuries were sustained by the appellant as a result of cross firing between the complainant and his brother Nadir Khan absconding co-accused. The factum of cross firing has been suppressed for reasons not far to seek. The motive is also too weak and flimsy. The dispute was between the complainant and Nadir Khan over distribution of ancestoral property. The appellant had no reason to join hands with Nadir Khan and participate in the incident in question. If the trial Court had considered all these aspects of the case, there was not the slightest possibility of conviction against the appellant. The trial Court has overlooked the material favouring the appellant and discarded the same in a manner uncalled for and unwarranted in law, as such conclusion of the trial Judge is not maintainable. The trial Judge has not applied his mind to the various aspects of the case and illegality convicted and sentenced the appellant.
12. After considering the material available on the record I am of the considered view that the case of the prosecution is highly doubtful, therefore, the appellant is entitled to the benefit of doubt which is accordingly given to him.
In the light of what has been stated above, the conviction and sentence awarded to the appellant under the impugned judgment are set aside and the appeal is accepted. The appellant is acquitted of the charge. He shall be released forthwith, if not required in any other case.