' SHAHJI RAHMAN KHAN, J.--- This Criminal Appeal is directed against the judgment/order dated 12- 3-2007 of the learned Additional Sessions Judge-II, Mardan whereby the appellant Behroz was convicted under section 302, P.P.C. And sentenced to imprisonment for life as Tazeer and Rs,50,000 under section 544-A, Cr.P.C. As compensation to the legal heirs of Malki Zaman deceased and in default thereof the appellant was to further undergo simple imprisonment for a period of six months and the benefit of section 382-B, Cr.P.C. Was extended to him. The co-accused of the appellant namely Afzal Sher and Muhammad Sher alias Ahmad Sher were acquitted of the charges.
2. From the afore-said judgment of the trial Court Criminal Appeal No,209 of 2007 was filed by Behroz appellant against his conviction and Criminal Revision No,40 of 2007 was filed by Noor Laiq against Behroz for enhancement of the sentence into death in Sessidns Case No,36/SC of 2004 and Noor Laiq has also filed Criminal Appeal No,236 of 2007 against the acquittal of Juvenile accused Muhammad Sher alias Ahmad Sher in Sessions Case No, 1/JC of 2006. As all the three matters are arising out of the same F.I.R. No,690 dated 27-11-2003 under sections 302/324/148/149, P.P.C. Of Police Station Katlang and common questions of law and facts are involved therein, therefore, they are being disposed of through this common judgment.
3. Noor Hayat deceased (then injured) on 27-11-2003 at 1715 hours along with his deceased father Malki Zaman was taken to Casualty of District Head Quarters Hospital Mardan by his co-villagers and therein lodged report Exh.P.A./1 with Islamuddin A.S.-I. On duty (P.W.10) stating therein that at the relevant time he along with his deceased father Malki Zaman, his brother Noor Laiq (P.W.14), and his mother Mst. Zahida (P.W.13) were present on the spot when in the meantime Bahroz (convict appellant), Shahroz, Hazrat Sher, Ahmad Sher (Juvenile acquitted accused) and Afzal acquitted accused duly armed came there and stared firing on them for their Qatl-e-Amd.
Resultantly, with their fires, his father was hit and died on the spot whereas he got injured. That his mother and brother Noor Laiq narrowly escaped from the firing. Motive for the offence was stated that his brother Asif (P.W.15) had taken Bicycle from the accused and when was returned in damaged condition, resulted into altercation between the parties and his father was killed. That for the murder of his father, for his injuries and attempt to commit Qatl-e-Amd of his mother and Noor Laiq charged the afore-said five accused. That the occurrence besides him was witnessed by Noor Laiq and Mst. Zahida. After recording the afore-said report, injury sheet and inquest report of Malki Zaman deceased was prepared and the dead body of Malki Zaman was sent for pnst-mortem examination. On the basis of Murasila Exh.P.A./1, F Exh.P.A. Was registered in the police station and copy of the i-.I.R. Was handed over to Jan Muhammad Khan S.-I. (P.W.15). He along with the police official went to the spot, prepared the site-plan Exh.P.B. At the instance of Mst. Zahida (P.W.13) because by that time injured Noor Hayat complainant was admitted in the . Hospital where P.W.
Noor Laiq was also attending him in the hospital. During spot inspection, he took into possession blood-stained earth from the place of Malki Zaman deceased vide Exh.P.W.12/1. He also took into possession blood-stained earth from the place of Noor Hayat complainant vide recovery memo Exh.P.W.12/2 and recovered 18 empties of 7.62 bore from the spot vide memo Exh.P.W.12/13. After completion of investigation he handed over the case file to Sher Malook Khan S.H.O. (P.W.1) Dr. Abdul Jalil (P.W.18) examined Noor Hayat injured on 27-11-2003 at 5-15 p.m. And he found the following:--- "The patient was conscious, his BP was 80 by 60 and pulse was 80 per minute.
(1) There was fire-arm entry wound on the right batik size 1/2 x 1/2 inch lateral side with exit wound 2 x 2 inches on the right lower lateral abdomen with abdominal contents out."
' The patient was admitted in Male Surgical Ward after providing first aid. The nature of injury was grievous which was caused with a fire-arm and the probable duration was one to two hours. He stated that the M.L. Report Exh.P.W.18/1 and injury sheet Exh.P.W.18/2 are in his handwriting and under his signature. On the same day at 5-30 p.m. He performed autopsy on the dead body of Malki Zaman on the identification of Amirzada (P.W.8) and found the following:--- External Examination.
(1) Fire-arm entry wound 1/2 x 1/2 inches on right upper chest 1 inch lateral through sternum with exit wound 2 x 1 inch on left back abdomen.
(2) Fire-arm entry wound 1/4 x 1/2 inches on medical side on left arm with exit wound 1/2 x 1/2 inches on left lateral side of left arm.
(3) One fire-arm entry wound 1/2 x 1/2 inches on the left side mid medial side on left thigh with exit wound 1 x 1 inch on the left batik on left side.
Internal Examination ' Thorax: Walls, Plurea, right and left lungs, pericardium and heart along with blood vessels were injured.
' Abdomen: Diaphragm, Large intestine, left kidney were injured while stomach contained semi solid fluids.
' In the opinion of the doctor the cause of death was due to injury to vital organ heart and lung which caused cardio respiratory arrest. The probable time elapsed between injury and death was instantaneous while probable time between death and-post-mortem was within 1 to 2 hours. The P.M. Report Exh.P.W.18/4 and the injury sheet Exh.P.W.18/5 are in his handwriting and bear his signatures.
3. On completion of investigation, the convict appellant Behroz and acquitted accused Afzal Sher were challaned to the trial Court in Sessions Case No,36/SC of 2004 and Muhammad Sher alias Ahmad Sher Juvenile accused was charged in Sessions Case No,1/JC of 2006. On conclusion of trial, Afzal Sher and Muhammad Sher were acquitted and the appellant Behroz was convicted under section 302, P.P.C. For the murder of Malki Zaman and sentenced to the imprisonment of life as Tazeer with a compensation of Rs,50,000 under section 544-A, Cr.P.C. As stated above.
4. The learned counsel appearing for the convict appellant Behroz submitted that the statement of the complainant Noor Hayat then injured (now dead) cannot be treated as dying declaration; that the eye-witnesses Mst. Zahida (P.W.13) and Noor Laiq (P.W.14) have furnished a different version to that of Noor Hayat complainant (now dead). That the statements of the witnesses are not in line with the motive for the occurrence and that no empty was recovered from the place of appellant Behroz indicated in the site-plan. That no appeal was filed against the acquittal of accused Afzal Sher and against the acquittal of the appellant under sections 148/149, P.P.C. And under sections 302/149, P.P.C. For the murder of Noor Hayat complainant and under section 324/149, P.P.C. For the attempted murder of P.Ws Noor Laiq and Mst. Zahida ' and section 337-F (iii) P.P.C. For the injuries of Umar Hayat abandoned P.W. That if Noor Laiq was present at the time of occurrence, there was no justification for his examination on the next day of occurrence. Concluding his arguments, the learned counsel contended that on the basis of simple abscondence of the accused conviction of the appellant Behroz cannot be sustained and be acquitted. Adopting the afore-said arguments, the learned counsel for the acquitted accused Muhammad Sher alias Ahmad Sher submitted that for the dichotomy in the evidence of the Prosecution Appeal No,1/JC of 2006 be rejected.
5. As against that, the learned counsel appearing for the State assisted by learned counsel for the complainant argued that Mst. Zahida specifically charged accused Behroz for the murder of her husband on the day of occurrence and 18 empties were recovered from the spot and the dying declaration of deceased Noor Hayat (then injured) is corroborated by the statement of P.Ws Mst.
Zahida and Noor Laiq and that the appellant has remained absconder for sufficient long time, therefore, the conviction of Behroz appellant be upheld but be awarded normal penalty of death and acquittal of Muhammad Sher alias Ahmad Sher be set aside and he be convicted for the offence charged with.
6. We have carefully considered the arguments of the learned counsel appearing for both the parties in the light of the evidence on record. The same would reveal that the prosecution witnesses have contradicted each other and have introduced improved version of their own. To begin with, deceased Noor Hayat (then injured) in his report Exh.P.A./1 has stated that at the relevant time they were present on the spot when the accused Behroz, Shahroz, Hazrat Sher, Ahmad Sher and Afzal duly armed came to the spot and started firing with the intention to kill them. With their firing his father was hit and died on the spot and he got injured whereas his mother and brother Noor Laiq narrowly escaped from their firing.
7. As against that, Mst. Zahida while appearing as P.W.13 has stated that because of altercation in between the accused and her son Noor Hayat she, her husband Malki Zaman and P.W. Noor Laiq came out from their house. It was 1630 hours when accused Behroz, Muhammad Sher alias Ahmad Sher, Afzal Sher and absconding accused Shahroz and Hazrat Sher duly armed came from their house and started firing at them. She has specifically charged Behroz for the murder of her husband Malki Zaman. She has not shown the presence of Umar Hayat (abandoned P.W.) on the spot nor she claimed that he sustained injuries in the occurrence. According to Noor Laiq (P.W.14), Asif (P.W.15) had borrowed a bicycle from Behroz and Muhammad Sher and when it was returned it was not in working order. On this Noor Hayat deceased told P.W. Asif to get away and because of the altercation, he, P.W. Mst. Zahida and Malki Zaman deceased were attracted to the spot: The accused were present duly armed with Kalashnikov and on their arrival accused Behroz made the first shot at his father and the remaining accused at his brother. That they took Noor Hayat then injured to the hospital where Noor Hayat being in senses made a report to the police and later on signed the same in his presence. That deceased Noor Hayat died after ten months of the occurrence of the injuries sustained by him. That he informed the police vide Daily Diary No,21 dated 11-9-2004 Exh.P.W.2/3. In her cross-examination Mst. Zahida (P.W.13) has stated that Asif (P.
W.15) borrowed a bicycle from Hazrat Sher accused and Noor Laiq (P.W.14) has stated that the bicycle was borrowed from appellant Behroz and Muhammad Sher. Both the afore-said P. Ws have stated that the accused came out from their houses duly armed with Kalashnikov whereas in the dying declaration the deceased has not described the weapon of offence. In the police statement Mst. Zahida has stated that both the parties were not on good terms with each other whereas in the statement in Court she has claimed cordial relationship between the parties. She has displayed ignorance of the presence of Umar Hayat and having sustained injuries whereas Noor Laiq (P.W.12) has stated in cross-examination that when he returned to his house for giving statement to the police, that his other brother P.W. Umar Hayat also sustained injuries and was taken to some hospital in Swat. Thus he went after him to Swat. However, he denied having been arrested by Sher Malook Khan, S.H.O. Of Police Station Katlang along with others under sections 216- A/201/202/203/34, P.P.C. Vide F.I.R. No,698 dated 28-11-2003 but admitted that during the days of occurrence P.W. Umar Hayat was proclaimed offender. The witnesses claimed that they have not taken shelter while present on the spot. He further stated in his cross-examination that he had witnessed the recording of statement of Noor Hayat injured and that the dying declaration statement was recorded by Islamuddin A.S.-I. (P.W.10) in presence of his close relative. Islamuddin Khan A.S.-I. (P.W.10) stated that he had obtained a certificate regarding the consciousness of Noor Hayat deceased (then injured) as Exh.P.A/2 encircled in red but in cross-examination clarified that the certificate was obtained after writing the report. That he has not given any detail in the rider to the Murasila of the certificate so obtained. The witness further admitted that in the dying declaration, the kind of weapon was not disclosed. This witness has deposed that the injury sheet Exh.P.W.10/5 of Urnar Hayat (abandoned P.W) was prepared by him.
8. Dr. Shehriyar S.M.O. (P.W.11) had found two firearm entry wounds on the person of Umar Hayat son of deceased Malki Zaman on 28-11-2003 at 3-40 a.m. According to the doctor, the patient was fully conscious, admitted in Male Surgical Ward and was advised X-Ray of the right elbow and abdomen. Nature of the injury was grievous. Kind of weapon used was firearm and duration of the injury was about 1200 hours. In cross-examination, this witness has re-iterated that the injured was produced to him by the police on 28-11-2003 at 3-40 a.m. But contrary to that the eye-witness Mst.
Zahida (P.W.13) has neither shown the presence of the said Umar Hayat on the spot nor has claimed that Umar Hayat received injuries in the occurrence whereas the charge for causing of the injuries sustained by Umar Hayat (abandoned P.W) was levelled against the appellant. From points 'A' and 'B' shown in the site-plan Exh.P.B, 18 empties of 7.62 bore were recovered and taken into possession by the Investigating Officer but it is not clear as to how many empties were taken from point 'A' located beyond the accused and how many empties were recovered from point No,2 located besides Noor Hayat complainant (now dead). Mst. Zahida and Noor Laiq eyewitnesses were in the range of accused and despite firing attributed to five accused, they surprisingly escaped unhurt. Jan Muhammad S.-I. (P.W.3) stated that he prepared the site-plan Exh.P.B. At the instance of Mst. Zahida (P. W.13) because by that time injured Noor Hayat complainant was admitted in the hospital while P.W. Noor Laiq was attending him in the hospital but in cross- examination, this witness contradicted himself by claiming that he recorded statement of Noor Laiq on 28-11-2003 in between 8 a.m. To 1430 hours. He has further stated that the kind of fire-arm was not disclosed in the F.I.R. Nor specific role of each of the accused was explained. In further deviation of his statement, this witness accepted the suggestion that as he reached to the spot, P.
Ws Mst. Zahida and Noor Laiq came there. It was also admitted that no empty was recovered from point No,5 allocated to the appellant Behroz in the site-plan. Contradicting Noor Laiq (P.W.14) this witness admitted it correct that F.I.R. Exh.P.W.17/7 is to the effect that P.W. Noor Laiq and others had taken Umar Hayat abandoned P.W. To District Head Quarters Hospital Timargara where he was arrested by Sher Malook Khan S.H.O.
9. The cumulative effect of the above noted infirmities, contradictions and improvements in the prosecution case leads us to the conclusion that the occurrence has not taken place in the mode and manner depicted by the prosecution. Apart from that, non-filing appeal against acquittal of the appellant under section 148/337-F (III), P.P.C. for the injuries sustained by Umar Hayat and under section 302/149, P.P.C. For the murder of Noor Hayat complainant, the prosecution case has received irreparable damage and have created multiple dents and doubts in the prosecution case. The rule of benefit of doubt which is described as golden rule is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim "It is better .That ten guilty persons be acquitted rather than one innocent person be convicted". In simple words it means that utmost care should be taken by Court in convicting an accused.
10. The reliance of the prosecution on the abscondence of the convict appellant and acquitted accused is not well placed because abscondence per se is not sufficient to prove guilt of the accused. Abscondence may equally be consistent with the innocence of the accused.
Abscondence as a piece of conduct of the accused is to be judged in the light of other evidence on record which evidence as discussed above is not sufficient to entail conviction. In the case before us, there are no reasonable grounds to believe that the convicted appellant Behroz and acquitted accused Muhammad Sher alias Ahmad Sher have taken part in the commission of the offence. In the wake of fore listed infirmities 'in the prosecution evidence, we are of the considered opinion that the prosecution has not established its case against the appellant Behroz and acquitted accused Muhammad Sher alias Ahmad Sher beyond reasonable doubt.
11. In view of the foregoing discussion, this Appeal No,209 of 2007 is accepted, the conviction and sentence of appellant, Behroz son of Moza Khan are set aside and he is acquitted of the charge. He shall be released from jail forthwith, if not required in any other case. The connected Criminal Revision No,40 of 2007 for enhancement of appellant's sentence, and Criminal Appeal No,236 of 2007 against the acquittal of respondent Muhammad Sher alias Ahmad Sher, are dismissed.
' Above are the reasons in support of our short order.