' IJAZ-UL-HASSAN KHAN, J.---Appellant Samiullah alias Kachu, aged about 28/29 years along with his brother Ihsanullah, aged about 42 years and father Waris Khan, aged about 62 years, all residents of village Kaghazai, District Kohat, were tried by Additional Sessions Judge/Judge Special Court, Kohat for committing murder of Muhammad Saeed son of Khani Zaman, in case F.I.R. No,68 dated 15-2-1996, under section 302/34, P.P.C, registered with Police Station, Kohat Cantt. At the conclusion of trial, vide judgment dated 15-4-2004, appellant Smiullah, having been found guilty, was sentenced to suffer life imprisonment with fine of Rs,1,00,000 (one lac), half of which was ordered to be paid to the legal heirs of deceased as compensation as required under section 544- A, Cr.P.C. Or in default whereof to undergo three years R.I. With benefit admissible under section 382-B, Cr.P.C. However, co-accused Ihasanullah and Waris Khan were extended benefit of doubt and acquitted of the charge.
2. Appellant Samiullah, feeling aggrieved, has called in question his conviction and sentence by filing Criminal Appeal No,351 of 2004. The State through Advocate-General, N.-W.F.P., Peshawar, has also filed Criminal Appeal No,443 of 2004, challenging the acquittal of Ihsanullah and Waris Khan.
Complainant Khani Zaman has also preferred Criminal Revision No,100 of 2004, seeking enhancement in the sentence of the appellant from life imprisonment to the penalty of death.
3. All the three matters, arising out of the same and one judgment, shall be disposed of by this single judgment.
4. Complainant Khani Zaman (P.W.6) brought the dead body of his son of Muhammad Saeed Khan on 15-2-1996 to Liaquat Memorial Hospital, Kohat and made a report at about 1600 hours to the effect that on the said day at 1500 hours, he was standing near the house of one Jan Muhammad and his son Muhammad Saeed Khan deceased and nephew Muhammad Bashir Khan, returning from Hangu, were on the way to their houses. When they reached on the thoroughfare near the house of Jan Muhammad, they were confronted by Waris Khan and his sons Samiullah and Ihsanullah. On seeing the complainant party, Samiullah and Ihsanullah, at the instigation of their father Waris Khan, resorted firing with the Klashinkoves, as a result of which Muhammad Saeed Khan was hit and died at the spot. No motive was disclosed in the F.I.R. The complainant, his nephew Muhammad Sher Khan, P.Ws. And many others were stated to have witnessed the occurrence.
5. A.S.-I. Noor Muhammad (P.W.9), Police Station Cantt: Kohat, after registration of case sent the same to Police Station, Cantt: Kohat, where it was incorporated into F.I.R. Exh.P.A., by HC Wilayat Khan (P.W.8). He then prepared injury sheet and inquest report of the deceased and leaving the dead body in hospital under the care of FC Riaz, for post-mortem examination, proceeded to the spot. He prepared site-plan Exh.P.B., at pointation of complainant and eye-witnesses. He secured 15 crime empties of 7.62 bore from the spot, vide recovery memo. Exh.P.C. In the presence of marginal witnesses and sealed the same into parcel. He also took into possession blood-stained clothes of the deceased, consisting of 'qamees' P1, Shalwar P2, Banyan P3 and Jarsi P4, sent by the doctor through constable Riaz. He sent the bloodstained clothes of the deceased to the FSL Peshawar and on receipt of report (Exh.P.Z), placed the same on file. He recorded statements of prosecution witnesses, initiated proceedings under sections 204/87,Cr.P.C. Against the accused and handed over the remaining investigation to Inspector Khurshid Khan (P.W.5). The accused Samiullah and Ihsanullah were arrested on 1-9-2002 by S.H.O. Muhammad Ayub (P.W.1) from their house in a raid.
After completion of the investigation, in the manner described above, supplementary challan was submitted in Court.
6. The prosecution to substantiate the accusation against the appellant and his co-accused, produced 11 witnesses in all, including the police officials, who carried out the investigation in the case and the medical officer who conducted autopsy on the person of the deceased. The ocular account was furnished by complainant Khani Zaman (P.W.6) and his nephew Bashir Ahmad (P.W.7), who in view of giving obliging concession, was declared as hostile.
7. On 15-2-1996, Dr. Rafi-ur-Rehman (P.W.10), Medical Officer, Liaqat Memorial Hospital, Kohat, conducted post-mortem examination of deceased Muhammad Saeed Khan, identified by Muhammad Saddique and Haji Malik Aman Khan Sahib and deducted the following:- External Examination.
(1) Fire-arm entry wound 1/4" x 1/4" on the right back of shoulder with no charring marks.
(2) Fire-arm exit wound 1/2" x 1/2" on the right edge of sternum in the 4th intercostals space.
' In opinion of doctor, death was caused due to injury to vital organs i.e, heart, lungs and blood vessels, causing blood loss, haemorrhage, shock and death due to fire-arm injuries. Probable time between injury and death was found thirty minutes and between death and post-mortem four hours.
8. After close of the prosecution evidence, the appellant and his co-accused got recorded their statements under section 342, Cr.P.C. In which they professed their innocence and pleaded to have been charged falsely. They led no evidence in defence.
9. At the conclusion of trial, Mr. Muhammad Iqbal Khan, Additional Sessions Judge/Judge Special Court, Kohat, vide impugned judgment adjudged Samiullah appellant guilty for the murder of Muhammad Saeed Khan deceased and convicted and sentenced him as mentioned and detailed above.
10. It may be noticed here that vide order dated 29-9-2004 of this Court, State Appeal (Criminal Appeal No,443 of 2004), relating to respondent Waris Khan, acquitted co-accused, has been dismissed being not pressed and it was admitted to the extent of respondent Samiullah.
11. We have heard at length Malik Fakhre Azam, Advocate, for the appellant Samiullah, Mr. Muhammad Waseem Tariq, Advocate for the State and Mr. Javed A. Khan, Advocate for the complainant Khani Zaman, in the light of the material on the file and the case-law, cited at the bar.
12. Learned counsel for the appellant contended, inter alia, that complainant Khani Zaman (P.W.6) is real father of the deceased, while Muhammad Bashir (P.W.7) is cousin of the deceased, who being related inter se and with the deceased closely, were interested witnesses and cannot be relied upon; that P.Ws. Made dishonest improvements in the trial to bring the medical evidence in conflict with the ocular account; that both the eye witnesses had not seen the occurrence and they were imported subsequently as eye-witnesses being close relative and that the F.I.R. Was lodged after consultation and due deliberation while conducting preliminary investigation. It was also contended that on the basis of the same evidence, Waris Khan and Ihsanullah co-accused have been acquitted and the appellant could not be convicted on the basis of same evidence without any independent corroboration, which is lacking in the present case. It was further urged that no motive was disclosed in the F.I.R. And the motive introduced during trial i.e,, quarrel between the appellant and the deceased, has not been proved, which even otherwise is always a double- edged weapon. The learned counsel also added that the recovery of .30 bore pistol and holster containing 27 rounds of the same bore from the appellant Samiullah, was of no use to the prosecution. Concluding the arguments, the learned counsel reiterated that absconsion was a weak type of evidence and the same per se is not sufficient to prove the guilt and sustain conviction because people do abscond due to fear, harassment and torture of police.
13. Conversely, learned counsel for the State, assisted by learned counsel for the complainant, maintained that all the three accused persons i.e, appellant and acquitted co-accused stand directly nominated in the promptly lodged report for the murder of Muhammad Saeed Khan, a young man of 25/26 years of age. Medical evidence was in complete harmony with the ocular account, the motive culminating into the murder of Muhammad Saeed Khan was fully established and immediately after the occurrence, the accused disappeared from the village and remained fugitive from law, till they were arrested during raid and the explanation offered by them under section 342, Cr.P.C. Hardly appeals to reason. To augument the contentions, reliance was placed on Syed Mushtaq Ahmad v. Sadiqullah and others (PLD 1975 SC 160), Allah Bakhsh and others v. The State (1976 PCr.LJ 1272), Ahmad Nisar v. The State (1979 SCMR 175), Mst. Roheed v. Khan Bahadur and another (19.92 SCMR 1036) and Amanullah Khan and 3 others v. The State (2002 PCr.LJ 1934 Lahore).
14. It needs no reiteration that the 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 acquittal on getting benefit of doubt in the prosecution case. In the instant case, we have scanned the prosecution evidence in depth and we are persuaded to hold that the prosecution has failed to produce trustworthy, confidence-inspiring and consistent evidence against the appellant. Conversely, the evidence suffers from material discrepancies/contradiction and omissions and has not proved the case against the appellant.
15. After perusal of the statements of eye-witnesses, their presence does not appear to be confidence inspiring. They have failed to provide any plausible explanation for their presence at the spot. Admittedly, a large number of co-villagers of the complainant are stated to have witnessed the occurrence and helped the complainant to remove the dead body of his deceased son to hospital, but no independent and disinterested witness has been produced to lend support to the prosecution story. It is true that the testimony of relative witness cannot be thrown out of consideration on the sole ground of relationship and solitary statement of a witness can be made basis for conviction but it is equally true that in such situation there should be corroboration, which, as stated above, is unfortunately missing. The emphasis is on the quality of evidence and not its quantity as held in Allah Bakhsh v. Shamon and others (PLD 1980 SC 225).
16. It may be pertinent to mention here that the evidence led by the prosecution has been believed qua appellant but the same set of evidence has been disbelieved regarding co-accused Ihsanullah, assigned similar role to that of his brother Samiullah appellant. There is no distinguishable role between the two. The mere fact that crime empties have been recovered from the point allotted to the appellant in site-plan Exh.P.B., by itself, cannot be considered a good ground to connect him with the commission of crime.
17. Similarly, medical evidence can only suggest what type of weapon was used in the incident but it cannot be considered as corroborative piece of evidence for maintaining the conviction of the appellant. In the present case, two accused have been attributed firing at the victim but only one wound has been found on the person of the deceased during post-mortem examination. It is not certain whose fire-shot proved fatal. Again, fifteen empties of 7.62 bore have been recovered from the spot but the same were not sent to the expert to ascertain as to whether the same had been tired from one weapon or more.
18.. Insofar as the abscondence of the appellant is concerned, it is meaningless because it can neither remove the defects of the oral evidence nor is by itself sufficient to justify conviction. The abscondence in this case cannot be taken to remedy the defects of the prosecution case.
19. In the final analysis of evidence, we are of considered, view that in this case prosecution has failed to prove the case against appellant beyond doubt. Ocular evidence of the two witnesses does not inspire confidence and it is doubtful whether they had seen the incident. No doubt, unfortunate incident has taken place in which Muhammad Saeed Khan lost his life but not in the manner asserted by the prosecution on the basis of evidence of these eye-witnesses. There is again no corroborative evidence to supplement ocular evidence. Prosecution can seek support from motive, medical evidence, recoveries and abscondence, but each piece of this evidence is defective and failing in instrinsic value, hence not fit for reliance to corroborate ocular version, which is itself defective. It is settled principle of law that one piece of tainted evidence cannot corroborate another piece of tainted evidence. We, therefore, hold that it is a fit case in which benefit of doubt can be given to the appellant. The evidence led by the prosecution is not of the quality or nature which could be said to have come from unimpeachable source. The prosecution story is full of doubt, the benefit of which has to be extended in favour of the appellant. As the principle evidence fails, motive, medical evidence, recoveries and absconsion cannot prove case for the prosecution. There was unexplained delay in lodging of the F.I.R. Which would strongly suggest that the case was registered after deliberation and preliminary investigation.
20. For the forgoing reasons, we are satisfied' that the prosecution has not been able to prove its case against Samiullah appellant as well through any piece of cogent evidence, hence this appeal is accepted, the impugned judgment of conviction and sentence is set aside and Samiullah appellant is also acquitted of the charge by extending him the benefit of doubt. He shall be released from jail forthwith, if not required in any other case.
21. Pursuant to above, State Appeal (Criminal Appeal No,443 of 2004) as well as Criminal Revision No,100 of 2004, filed by Khani Zaman, having been found bereft of force, are hereby dismissed.
22. Above are the detailed reasons of our short order dated 1-12-2005. Announced in open Court.