' IJAZ-UL-HASSAN KHAN, J.---Appellant Ghafoor Khan son of Azim Khan, aged about 33/34 years, resident of Attakay Shabqadar, Charsadda, was tried by the learned Additional Sessions Judge, Charsadda, for having, along with absconding co-accused, committed "Qatl-i-Amd" of Afsar Khan son of Taj Muhammad by firing and attempted murders of Taj Muhammad and his wife Mst. Gulab Zari, by firing at them ineffectively. At the conclusion of trial, having been found guilty, appellant was convicted by impugned judgment dated 2-8-2004 under section 302(b), P.P.C. And sentenced to suffer life imprisonment and was also directed to pay compensation of Rs,1,00,000 to the legal heirs of the deceased under section 544-A, Cr.P.C. Or in default whereof to undergo additional imprisonment of six months' S.I. The appellant was also convicted under section 324, P.P.C. For attempting at the life of Taj Muhammad and sentenced to undergo R.I. For two years with compensation of Rs,2,000 to be paid to the victim or in default whereof to undergo two months' S.I.
The appellant was further convicted and sentenced under section 324, P.P.C. For attempting at the life of Mst. Gulab Zari complainant to suffer R.I. For two years with compensation of Rs,2,000 to be paid to the victim or in default whereof to undergo two months' S.I. The appellant was further convicted and sentenced under section 148, P.P.C. To three years' R.I. With fine of Rs,1,000 or in default to suffer one month S.I. All the sentences were directed to run concurrently. Benefit of section 382-B, Cr.P.C., however, was extended to the appellant.
2. The appellant has assailed his conviction and sentences through instant Criminal Appeal No,700 of 2004.
3. Occurrence of the alleged incident had taken place on 5-6-1999, at about 1000 hours in the lands "mausooma" "buranay raqba" situated in village Atakay, at a distance of three kilo meters, from Police Station, Shabqadar. The matter was reported to the police the same day at 1045 hours by Mst. Gulab Zari (P.W.8) complainant in this case.
4. Briefly stated the facts of the prosecution case as stated in the F.I.R. Are, that on the fateful day, Mst. Gulab Zari complainant, her husband Taj Muhammad and son Afsar Khan deceased, were busy in weeding their lands when in the meanwhile Mukham, Niaz Ali, sons of Zaitullah, Jan and Hayatullah, sons of Sher Bahader and Ghafoor Khan son of Azam, of her village, duly armed with Klashnikovs emerged at the spot and stated firing at the complainant party, as a result of which Afsar Khan was hit and died there and then. The complainant and her husband, however, escaped unhurt. The motive leading to the incident was stated to be previous enmity between the two families.
5. Investigation of the case was taken over by S.H.O. Hassan Khan (P.W.9). He, after the registration of the formal F.I.R. (Exh.PW.9/1), prepared injury sheet (Exh.PW.9/2) and inquest report (Exh.PW.9/3) of the deceased and sent the dead body to the mortuary for post-mortem examination, under the escort of FC Tayyib Shah (P.W.5). On reaching the spot, he prepared site plan Exh.PW.9/4 at the pointation of the complainant. During the spot inspection he took into possession blood stained earth P.1 vide recovery memo. Exh.PW.9/5 and seven empties of 7.62 bore, vide recovery memo.
Exh.PW.4/1 in the presence of marginal witnesses. He also took into possession last-worn clothes of the deceased, consisting of shirt P.1 and shalwar P.2, and sent the same to F.S.L. Peshawar for the examination. He placed on record report Exh.PW.9/7 of the Expert. On 28-10-2002 appellant was arrested by constable Ajmal Khan and handed over to Inspector Ishfaq Khan (P.W.10). After completion of investigation, supplementary challan was submitted in Court by S.I. Naushad Khan (P.W.2) against the accused to face trial.
6. The learned trial Court on receipt of challan, framed charge against the appellant, to which he pleaded not guilty and claimed to be tried.
7. In order to prove the case against the appellant, the prosecution has examined as many as ten witnesses. Mst. Gulab 'Zari, complainant was examined as P.W.B. She Supported the version of the F.I.R. And narrated the motive of the occurrence. S.I. Naushad Khan (.P.W.2), A.S.I. Samin Jan Khan (P.W.3), S.I. Matiullah Khan (P.W.6) and S.H.O. Hassan Khan (P.W.9) and Inspector Ishfaq Khan (P.W.10), carried out the investigation. The remaining witnesses are of formal nature and need not to be discussed.
8. Dr. Rab Nawaz Khan (P.W.7) Medical Officer, Civil Hospital, Shabqadar conducted post-mortem examination of the deceased on 5-6-1999 and found the following:-- External examination:
(1) Fire-arm injury wound about 1/4" size on the back up right side in the lumber area. .
(2) Fire-arm exit wound about 2" x 112" size in front of left side of abdomen left iliac fossa.
(3) Fire-arm entry wound about 1-1/2" x 1" size on the top of skull.
(4) Fire-arm exit (Lacerated wound) about 4" x 2" in size on the back of skull with the brain mattered smashed.
' According to opinion of the doctor, the death had occurred due to fire-arm injuries to vital organs like brain and abdomen, causing severe blood loss and shock. Probable time between injury and death was found instantaneous and between death and post-mortem two hours.
9. The appellant in his statement recorded under section 342, Cr.P.C. Refuted the prosecution allegations and pleaded that he has been falsely implicated on account of deep-rooted enmity and suspicion. The appellant did not wish to appear as a witness on oath in disproof of the prosecution allegations. He produced no evidence in defence.
10. The learned trial Court after having gone through the evidence adduced by the prosecution and hearing the learned counsel for the parties, passed the judgment in terms as stated above.
11. Mr. Asadullah Khan Chamkani, Advocate appearing on behalf of the appellant mainly contended that prosecution has failed to prove its case against the appellant beyond reasonable doubt and the learned trial Court instead of extending benefit of doubt to the appellant has extended the same in favour of prosecution, which has resulted in grave miscarriage of justice. The learned counsel submitted that the charge levelled against the appellant is exaggerated and the entire prosecution case is false and the court has not assessed the prosecution evidence in its true perspective. The learned counsel reiterated that the F.I.R. Was lodged after delay of 45 minutes, which shows that P.Ws were not sure about the culprits and there was premeditation and consultation.
12. As against the same, Mr. Sher Bahadur, Advocate representing the State assisted by Mr. Mushtaq Ahmad, Advocate for the complainant, vehemently opposed the instant appeal maintaining that the prosecution ocular account was furnished by the reliable witnesses; that the matter was reported to the police within 45 minutes after the occurrence, in such short span of time, there would hardly be, any chance of deliberation or consultation on the part of the complainant before lodging the F.I.R; that the medical evidence has fully supported the ocular account of the prosecution; that the motive has been proved on the record; that the abscondence of the appellant had remained unexplained by him satisfactorily and this is heavy circumstance in corroboration to the ocular testimony connecting him with the ,offence. He by summing up his arguments, contended that the judgment of the learned trial Judge is based on proper appreciation of evidence, which needs no interference by this Court in appeal.
13. We have heard learned counsel for both the sides with utmost care and devotion and perused the record in the light of their respective arguments.
14. It is settled law that to get the accused convicted in an offence of capital punishment, the prosecution is bound to prove its case, wherein no weakness could be found to give the benefit of doubt to the accused. To convict a person on a capital charge, evidence should be of high quality.
Prosecution primarily is required to establish guilt against accused beyond reasonable doubt by bringing trustworthy, convincing and coherent evidence for the purpose of awarding conviction.
15. The prosecution case mainly hinges on the testimony of Mst. Gulab Zari (P.W.8), who had been produced as sole eye-witness of the occurrence. The version of the complainant does not appeal to reason and makes her presence at the scene of occurrence highly improbable. Even if her presence is admitted at the place of occurrence for the sake of arguments, still she is a chance witness and there is no independent corroboration of her testimony. She has not been able to sufficiently justify her presence at the place of occurrence. An eye-witness who claims his presence on the spot, must satisfy the mind of the court through some physical circumstance or through some corroborative evidence in support of his presence. It may be pertinently mentioned here that the complainant claims to have taken tea to the venue of occurrence. She also claims to have helped her husband and deceased son in weeding the land. No tea-pot, cups or agricultural implements have been recovered from the spot. No piece of land is also found having been weeded. Taj Muhammad cited as eye-witness has been abandoned being un-necessary. The whole case being full of doubt is shrouded in mystery and there being no evidence to connect the appellant with commission of crime, the trial court has acted in disregard of settled principle of law and justice by convicting the appellant on capital charge merely on the sold testimony of the complainant, which is not worth-reliance.
16. Adverting to medical evidence, we find that the same is in conflict with the ocular account. The appellant and the absconding co-. Accuse are alleged to have fired indiscriminately at the complainant party with Klashnikovs, culminating into murder of Afsar Khan deceased but only two entry wounds have been found on the person of the deceased. Medical evidence which negates the ocular evidence cannot be used as supportive of ocular evidence. Ocular evidence which is not confirmed by medical evidence cannot be relied upon. Medical evidence can at best be used to support ocular testimony or any other incriminatory evidence. Ocular testimony having been found not confidence-inspiring, medical evidence could not be used to support ocular testimony.
Medical evidence does not establish identity of the culprit. It may simply give us extent, nature, number, locale of injuries, probable weapon of offence and cause of death.
17. As far as motive is concerned, the same is always double-edged weapon. If there was motive to murder the deceased as given by the first informant in the F.I.R. And there could also the motive for false implication of the appellant. Enmity is a double-edged weapon. If it prompts one to cause harm to his adversary, same can also be motive for false implication of adversary in order to weak vengeance. Trial Court erred in receiving motive part of prosecution story as a corroborative to ocular testimony.
18. Mere abscondence of accused in absence of any other evidence against him cannot be considered enough to sustain conviction of accused. Innocent person can go into hiding due to fear of unjustified harassm ent and victimization at hands of police. It can be taken as corroborative of charge and not evidence of charge. The trial Court has wrongly used the factum of his abscondence in corroboration to the ocular testimony connecting him with the offences alleged.
The submission of the learned State Counsel that abscondence of the appellant seems to be an evidence of his guilty intent in the matter and had he been innocent he would not have escaped, has failed to impress us.
19. Having adjudged the matter from all angles, we find that it was an unseen occurrence. There was no occasion for the complainant to have accompanied her husband and deceased son to the fields for weeding. As the principal evidence failed, motive, recovery, medical evidence and absconsion cannot prove case for the prosecution.
20. Resultantly, by accepting this appeal, we set aside the appellant's conviction and sentences and acquit him of the charges. The appellant is in jail. He shall be released forthwith, if not required in any other case.
' Above are the detailed reasons of our short order dated 20-12-2005.