1. Ijaz-ul-Hassan Khan, J.--Appellants Naseeb Khan son of Ajab Khan and his cousin Silawar Khan son of Speen Ghani, both residents of Barh Abbas Khel, District Hangu, have filed instant appeal under Section 410 Cr.P.C. against the impugned judgment and order of the learned Sessions Judge, Hangu dated 4.9.2004, whereby he convicted and sentenced the appellants to imprisonment for life under Section 302(b) PPC by way of lazie alongwith a fine of Rs, 1,00,000/- (one lac) each under Section 544-A Cr.P.C. or in default to undergo imprisonment for six months S.I. Benefit of Section 382-B Cr.P.C. was extended to both the appellants.
2. It is pertinent to mention here that accused Silawar Khan was previously tried by Additional Sessions Judge/Judge Special Court Hangu. On conclusion of trial, vide judgment dated 2.11.2000, accused having been found guilty was convicted and sentenced to life imprisonment with a fine of Rs, 1,00,000/-. The accused by filing an appeal, challenged his conviction and sentence before this Court, which was allowed and the case was remanded back with the observation that trial of the accused before Judge Special Court was without jurisdiction and he should be tried de novo in ordinary Court. When the post remand proceedings commenced, co-accused Naseeb Khan was also arrested, therefore, both the accused were tried afresh by the learned Sessions Judge, Hangu, who at the completion of the trial, convicted and sentenced them, as stated above.
2. 3.The crime in question is alleged to have taken place on 11.1.1998 at `digar nimaz vela', outside the village mosque mausooma `Jamia Masjid, deh Chamba Gul Hangu' and the report about it was lodged the same at 19.30 hours at Civil Hospital Hangu by complainant Mst. Hajira Bibi (P.W.5) widow of Kamil Badshah deceased and it was recorded by SHO Muhammad Amin (P.W.8).
3. 4.Briefly stated the facts of the case are that on the eventful day i,e, 11.1.1998 Mst. Hajira Bibi complainant brought the dead body of her husband, Kamil Badshah deceased to Civil Hospital Hangu and made a report to the effect that on the said day she alongwith Mst. Taj Mahal Bibi PW had taken her minor son to the Imam of the Village mosque for 'dam'. She added that her husband Kamil Badshah was coming out of the mosque after laying the `asar' prayers when accused Naseeb Khan and Silawar Khan duly armed with deadly weapons entered into the mosque and started firing on Kamil Badshah, as a result whereof he was hit and died there and then. Explaining the motive it was stated that a year prior to the occurrence, the accused party had committed the murder of Hakim Badshah, brother of the deceased on account of which the relations between the two families were embittered.
4. 5.SHO Muhammad Amin (P.W.8) was on routine `gasht', when he received information about the occurrence and arrival of a dead body to civil hospital Hangu. He immediately rushed to the hospital and recorded the report Ex. PA/1 at the instance of the complainant and sent the same to police station for registration of case. He prepared injury sheet Ex. P.W.8/1 and, inquest report Ex.
5. P.W. 8/2 of the deceased. He proceeded to the spot and prepared site-plan Ex. P.B. with all its foot notes and sketches at the pointation of the eye-witnesses. He took into possession five empties of .30 bore and blood stained straw of sugar from the spot vide recovery memo Ex. P.C. He also took into possession the last worn clothes of the deceased brought from the hospital, vide recovery memo Ex. P.C./1 and dispatched the same to the Laboratory and placed its result on file. Accused Silawar Khan and Naseeb Khan were arrested on 2.9.1999 and 20.1.2001 respectively. After completion of investigation, challan was submitted in Court against the accused.
6. 6.In support of its version, the prosecution produced as many as 11 witnesses. The ocular account is rendered by Mst. Hajira Bibi complainant (PW-5) and her sister-in-law Mst. Taj Mahal (PW-6).
7. 7.Dr. Muhammad Iqbal (P.W.7) Medical Officer, Civil Hospital Hangu on 11.1.1998 at 8.00 conducted post-mortem examination of the deceased and found the following:--
1. Entrance wound right side of chest 7th intercostals level size 34" and its exit on back of right chest size 1".
8. 2.Right side of chest entrance would 8th intercostals space size 34" and its exit on back of right chest.
9. 3.Entrance wound left side hypocardium 34" and its exit at left lumber region size 1".
10. 4.Entrance wound left fore-arm 34" and its exit on back of forearm size 1.
11. 5.Left hand right finger shattered wound 2 x 1".
6. Entrance wound right mid inguinal region W, its exit wound on right thigh 1".
12. 7.The cause of death was found injury to the right lung, liver and major vessels in chest.
13. Probable time between injury and death was (1/4) hour while between death and PM examination was four hours.
14. 8.After the close of prosecution case, the statements of the appellants were recorded under Section 342 Cr.P.C. wherein they denied the charge and stated false implication. They pleaded that the deceased was a man of objectionable character and was suspected of having illicit relations with an Afghan woman in Barh Abbas Khel, due to which he was expelled alongwith his family from the village and he started living in village Chamba Gul, Hangu.
15. 9.None of the appellants opted to record their statement on oath under Section 340(2) Cr.P.C. nor did they opt to produce any defence evidence.
16. 10.On the conclusion of their trial, they were found guilty of the offence under Section 302(b) PPC and vide judgment dated 4.9.2004 delivered by Mr. Amanullah Salik, Sessions Judge, Hangu, were convicted and sentenced as narrated in the earlier part of this judgment.
17. 11.Appearing on behalf of the appellants, Barrister Zahurul Haq, initiated arguments with the averments that the evidence produced by the prosecution is full of material and fatal contradictions, grave discrepancies, dishonest investigation and improvement, as such not worthy of reliance; that there is inordinate delay in lodging the FIR for which no plausible explanation has been put forward by the prosecution, which caused serious doubt regarding the genuineness of the prosecution story; that medical evidence is not in consonance with the ocular account; that it was unseen occurrence and the report has been made after preliminary investigation, which is supported by material on record. Concluding the arguments, the learned counsel maintained that the presence of eye witnesses on the spot at the time of occurrence is highly doubtful and the prosecution had failed to bring on record any direct or indirect piece of evidence which could connect the appellants with the commission of offence.
18. 12.While opposing the aforesaid submissions of the learned counsel for the appellants and supporting the impugned conclusion of the learned trial Judge whole heartedly, Miss Neelam Khan, Advocate, representing the State assisted by Khawaja Muhammad Khan, Advocate for the complainant, contended that appellants have been rightly awarded the impugned conviction and sentence; that both the eye-witnesses have supported the prosecution 'case on the material, points and neither they have exaggerated the facts nor have made any improvements to supplement the prosecution case making their testimony unworthy of credence and that the ocular account has been further corroborated by medical evidence, motive, recovery and noticeable absconsion of the appellants. To augment the contentions, reliance was placed on Mukhtiar Ahmad and others vs. The State (PLD 2004 SC 563), Irshad Ahmad and others vs. The State and others (PLD 1996 SC 138), Mst. Mumtaz Begum vs. Ghulam Farid and another (2003 SCM R 647), Roshan and 4 others vs. The State (PLD 1977 SC 557).
19. 13.Arguments rendered by the learned counsel have been carefully considered, the evidence available on the record and the impugned judgment have been examined.
20. 14.The entire edifice of the prosecution case rests upon the ocular account of the incident furnished by Mst. Hajira Bibi complainant and Mst. Taj Mahal PWs. The corroboration is sought from medical evidence, motive, recoveries from the spot and abscondence of the appellants.
21. 15.Having considered the matter from all angles, we are of the view that the case of the prosecution is doubtful in nature and the evidence available on record is not, in any way, sufficient to lead to a conclusion that the appellants be convicted of the offence alleged against them. The statements of eye-witnesses suffer from material infirmities and they have tried to improve the case on various material aspects. Inherent weaknesses in, their evidence negate their presence at the spot at the time of occurrence. It is not denied that one single reason would be sufficient to discard a statement of a witness if it creates doubt in a reasonable mind regarding his presence at the spot. Since the very purpose of the eye-witnesses at the scene of occurrence is doubtful, therefore, the evidence of recovery, motive, absconsion or the doctor deposing the injuries suffered by the deceased, even if proved, cannot in any way advance the case of the prosecution. The story advanced by the prosecution is unbelievable because in the presence of male members as well as old ladies in the house, taking a minor to mosque for the purpose of dam; by a young lady, is not only against the tradition of the area but also does not appeal to a prudent mind. The charge seems to be the result of consultation and deliberation.
22. 16.There is delay of about two hours in lodging of report. It is not denied that undue, unreasonable and unexplained delay in filing FIR leads to suspicion and reflects on the truth of the prosecution case. Earlier information of crime is required to be supplied to the police in order to avoid criticism of the report as being manipulated and result of deliberation and consultation. No doubt, it is true that delay in lodging of FIR is not always fatal to a case, but the prevalent circumstances are to be kept in mind and then its effect is to be assessed in the case. In the instant case, delay having not been explained by the prosecution, a reasonable inference would be that the accused were substituted and they were falsely implicated in the case.
23. 17.The next piece of evidence is the medical evidence. Medical evidence by itself does not establish either the identity or the complicity of the accused in the crime. It is only when involvement of an accused in the crime is established through other evidence beyond reasonable doubt that further corroboration can be sought with the help of the medical evidence. The medical evidence can at best be used to support the ocular testimony or any other incriminatory evidence of the type and for no other purpose. The ocular testimony in this case having been found not confidence inspiring or E with intrinsic worth, the same, therefore, could not be used to support the same.
24. 18.During the course of investigation, five empties of .30 bore pistol have been recovered from the spot. The empties have not been sent to fire arm expert to ascertain the fact whether the same had been fired from one weapon or different weapons. The Investigating Officer had furnished no explanation for the omission on his part to send the empties to the expert for opinion and report'
25. This lapse on the part of the prosecution is highly fatal and cuts the root of the prosecution case.
19. Insofar as the point of appellants' abscondence is concerned, it may be stated that mere absconsion is not conclusive proof of guilt of accused person. It is only a suspicious circumstance against an accused that he was found guilty of the offence. However, suspicions after all are suspicions. The same cannot take the place of proof. The value of abscondence, therefore, depends on the facts of each case. The Courts have admitted it as a supporting evidence of the guilt of accused. The absconsion of the accused may be consistent with the guilt or innocence of the accused, which is to be decided keeping in view over all fats of the case.
26. 20.After deep reappraisal of the evidence, we are convinced that it was an un-witnessed occurrence and the incident had not taken place in the matter as suggested by the prosecution.
27. We entertain serious doubts about the alleged presence and participation of the appellants in the occurrence in question. The learned trial Court has made a subjective approach to the case and has not assessed the prosecution evidence in accordance with the settled principles set up by the superior Courts on the subject which has resulted in miscarriage of justice. The impugned judgment is the result of misreading and non-reading of evidence on record. The present case is totally a case of no evidence and conviction has been recorded merely on presumptions. Motive advanced by the prosecution has also not been proved as rightly held by the trial Court. It is well established principle of law that in .a case involving capital punishment, the Court will not base conviction on the sole testimony of a witness whose credibility is not free from doubt, therefore, for safe administration of justice in criminal cases, the Courts look for some independent corroboration, which is lacking in the instant case.
28. 21.In view of the above discussion, the judgment passed by trial Court is set aside by accepting the appeal filed by the convict-appellants who are acquitted of the charge. The accused shall be released forthwith if not required in any other case or offence.
29. 22.We had, by our short order, dated 29.9.2005, allowed the appeal and acquitted the appellants for reasons to be recorded later. Above are the detailed reasons.