' ABDUL AZIZ KUNDI, J.- Arshad son of Jan Muhammad, resident of Shah Muhammad Garhi, Badabher, Tehsil and District Peshawar, an accused in case F.I.R. No,841 dated 26-11-2008 of Poliee Station, Badhber for offence under sections 302/148/149, P.P.C., was tried by Additional Sessions Judge-VII/Special Court, Peshawar, in case No,36/SC of 2009 and on conclusion of trial, vide judgment dated 10-9-2009, convicted and sentenced him as under:- "(a) convicted under section 302(b) Pakistan Penal Code, 1860 and is hereby sentenced to the punishment of death for which he shall be hanged by neck till he is declared dead.
(b) to pay under section 544-A, Code of Criminal Procedure 1898 to the legal heirs of deceased Rs.1,00,000 recoverable as arrears of land revenue."
2. He has questioned his conviction and sentence through Criminal Appeal No,438 of 2009, while Murder Reference No,20/2009, has been received from the trial Court.
3. Jabar Khan son of Raheem Khan, complainant (P.W.9), on 26-11-2008 at 13.13 hours with the help of his co- villagers brought the dead body of his uncle Rustam Khan son of Shah Mos Khan in a Datsun Pickup to the Police Station, Badabher and reported that he, his deceased uncle Rustam Khan alias Shenay and Maroof Khan, both sons of Shah Mos Khan were present in their fields ploughing the lands through tractor; that he (complainant) and deceased uncle Rustam alias Shenay were sowing wheat seed when in the meantime Zahir Shah, Farhad, Arshad sons of Jan Muhammad, Jan Muhammad son of Taj Muhammad and Suhail son of Zahir Shah, residents of Shah Muhammad Garhi, came and while catching hold of his deceased uncle Rustam Khan from his hand, they took him and after covering some distance, they started firing upon him, which hit his uncle, who died on the spot, while the accused decamped from the scene. The occurrence was stated to have been witnessed by the complainant and his uncle Maroof Khan (not produced).
Motive for the offence was stated to be dispute over lands
4. This was entered as F.I.R. No,841 at 13.15 hours on the same day in the said police station, which was duly signed by the complainant in token of its correctness.
5. Inquest report and injury sheet of the deceased was prepared, whereafter dead body was dispatched for Post Mortem under the escort of constable Mushtaq Khan No,2813/F.C. And case handed over to investigation branch for investigation. Investigation Officer, namely Liaqat Ali (P.W.4) proceeded to the spot, recovered blood-stained earth (Exh.P.1) from the spot through recovery memo. Exh.P.W.3/2,6 empties of 7.62 bore (P.2) vide recovery memo. Exh.P.W.3/1, prepared site plan Exh.PB on the pointation of complainant (P.W.9). The Investigating Officer also took into possession shirt (Qamees) Exh.P.3, Shalwar Exh.P.4, one Banyan Exh.P.5 (Blood-stained) of deceased Rustam Khan, vide recovery memo. Exh.P.W.1/1. Blood-stained earth and clothes aforesaid were sent for chemical analysis, vide Exh.PK. Raid was conducted upon the houses of accused in order to arrest them or recover any incriminating material vide "Fard Khana Talashi"
Exh.P.W.4/1. He also moved application Exh. P. W.4/2 and Exh. P. W.4/3 for warrants under section 204, Cr.P.C. And proclamation under section 87, Cr.P.C. Against the accused.
6. The I.O. Arrested the convict-appellant and produced him before Judicial Magistrate on 29-1- 2009, who allowed two days police custody.
7. On completion of investigation, challan was put in Court and trial against the convict-appellant commenced.
8. After fulfilling the requirements of section 265-C, Cr.P.C., the convict-appellant was formally charged, who pleaded not guilty and claimed trial.
9. In support of its case, prosecution examined Ziaullah F.C. No,309 as P.W.1, who was witness to the recovery memo.
' Exh.P.W.1/1, vide which the I.O. Took into possession the blood stained garments of the deceased; sealed the same into parcel and affixed two seals of the SS over the parcel. P.W.2 Mir Kalam Khan, S.-I. Had registered case F.I.R. Exh.PA, prepare inquest report Exh.P.W.2/1 and injury sheet Exh.P.W.2/2 of the deceased, sent the dead body to mortuary under the escort of Mushtaq Khan FC. Israf Gul son of Abdar Gul, P.W.3 is marginal witness to recovery memos. Exh. P .W.3/1 and P.W.3/2, vide which the I.O. Had taken into possession blood-stained earth from the spot and six empties of 7.62 bore rifle from the scene of occurrence. Liaqat Ali S.-I. P. W.4 had investigated the case, prepared the site plan Exh.PB, took into possession blood-stained earth Exh.P.1, vide recovery memo. Exh.P.W.3/2 and six empties of 7.62 bore Exh.P.2, vide recovery memo. Exh.P.W.3/1, had also taken into possession blood-stained garments of the deceased consisting of one `Qamees' P.3, `Shalwar' P.4, 'Banyan' P.5, vide recovery memo. Exh.P.W.1/1 and also searched the house of the accused through search memo. Exh.P.W.4/1 and had sent the blood-stained garments, blood-stained earth, vide his application Exh.PK to F.S.L. For chemical analysis and had received the report Exh.PK/1 in respect thereof; had drafted application Exh.P.W.4/2 and Exh.P.W.4/3 for process under section 204, Cr.P.C.
And proclamation under section 87, Cr.P.C. And had also recorded statements of P.Ws. Under section 161, Cr.P.C. After completion of investigation, he handed over the case to the S.H.O.
Concerned for further completion. In his cross-examination he has admitted that the empties so recovered by him were not sent to the FSL to ascertain as to whether the same have been fired from one weapon or otherwise. Shaheenullah P.W.5 had submitted complete challan, after completion of investigation in the case. Mushtaq FC P.W.6 had escorted the dead body of the deceased from P.S. To mortuary and after post-mortem examination, the doctor handed over the garments of the deceased to him which he handed over to the I.O. Dr. Muhammad Aslam, Lecturer KMC Peshawar, who had conducted the post-mortem examination of the dead body of the deceased Rustam Khan, was examined as P.W.7, who had found the following on the dead body of the deceased:--- "External Appearance.---No mark of ligature was present on neck. A well built body of man 32-35 years of age, wearing grey Shalwar, Qamees and a white vest. The clothes are blood-stained. Rigor mortis and post-mortem lividity have started developing.
' External Injuries: (1). A firearm exit wound on the left side and left back of skull 13x6 cm in size, 2 cm above left ear, 6 cm from midline. The skull is fractured and the brain matter is shattered out.
(2) A firearm entry wound on the left side of skull 1 x 0.5 cm in size, 4 cm above the left eyebrow and 9cm from the midline.
' Internal Injuries: ' Scalp, Skull, membrances and brail were injured.
' Abdomen was healthy and empty.
' Skull was fractured. Opinion: ' In my opinion the deceased died due to injury to the skull and brain due to the firearm.
' Probable time between injury and death: Immediate.
' Between death and post-mortem, 3-5 hours.
' After completion of post-mortem examination, I handed over the garments of the deceased, postmortem report and other documents to the police. My report is Exh.P.W.7/1, which is correct and correctly bears my signature. I have also endorsed my signature on the injury sheet of the deceased Exh. P. W.2/2.
' XXXX...Nil. Opportunity given."
' Malik Asad Khan, P.W.8 is the marginal witness to the recovery memo. Exh.P.W.3/1 and P.W.3/2, through which the I.O. Had taken the blood-stained earth and empties from the spot. Jabbar Khan, complainant in the case was examined as P.W.9, who instead of sticking to the stand taken in the F.I.R. Exh.PA stated that it was Arshad convict-appellant, who turned his weapon and started firing at the deceased, thus causing injuries to him on* his head. In his cross-examination, he has said that he has signed the F.I.R. Without being the same read out and explained to him. He made material variations in his stand, which will be later on dealt with at appropriate place. P.W. Maroof Khan, another alleged witness of the occurrence was abandoned as he was declared P.O. In some other criminal case.
10. It was argued by the learned counsel for the convict-appellant that though per prosecution case, the occurrence took place at 12-00 noon, while it was reported to the police station at 13.15 hours and per statement of complainant P.W.9 Jabbar, he had remained in the fields for 45 minutes and thus it appears to be an unseen occurrence and charge having been brought after deliberation, more particularly when P.W.9 Jabbar in order to corroborate medical evidence took a stand as against the one taken by him while registering the case per F.I.R. Exh.PA; that initially five persons of one family comprising of father, three sons and a grandson were charged for having effectively fired at the deceased but none was specified to have caused fatal injuries to the deceased, but in his statement in Court Jabbar P.W.9 charged the convict-appellant; that all the five accused are charged for firing upon the deceased at very close range but the receipt of one injury by the deceased is not compatible with the number of assailants and further that empties recovered from the scene of occurrence were not sent to Forensic Expert to have some sort of corroboration. It was also argued that Jabbar P.W.9 has not been corroborated through a single word and thus absence of corroboration would suggest it to be an unseen occurrence; that deceased and his brother Maroof Khan were proclaimed offenders and thus his having been done to death by somebody else cannot be ruled out. It was further argued that right from its inception it had been the case of the prosecution that the deceased and the complainant along with his uncle Maroof Khan (not produced) were sowing wheat through a Tractor; but neither the wheat nor the Tractor have been taken into possession, thus causing further dents to the case of the prosecution and that in the trial complainant tailored his testimony deliberately to earn punishment for the convict-appellant.
11. As against that, learned counsel representing the complainant argued that it is a board-daylight occurrence and because of previous enmity between the parties, question of false charge does not arise, nor has any substitution been made and that circumstantial evidence in the shape of recoveries of empties and blood-stained earth fully corroborate the prosecution case; that since P.W.3 Israf Gul made a concessional statement towards defence, therefore, prosecution produced P.W.8 Malik Asad Khan in order to prove the recoveries and that non-examination of the empties recovered from the scene of occurrence through Forensic Expert is not fatal to prosecution case and further that testimony of a single witness, if confidence inspiring, is sufficient for maintaining capital punishment like the one awarded to the convict-appellant and that in view of the statement P.W.9 Jabbar complainant, which has remained unshaken, it would become immaterial that the deceased had many enmities.
12. Learned Advocate-General, appearing for the State, fully supported the learned counsel for the complainant and defended the impugned judgment of the Trial Court, accordingly he pressed for dismissal of the appeal and maintaining of the conviction and sentences recorded by the learned.
Judge of the trial Court and also answering the Murder Reference in positive.
13. Arguments heard. Record perused.
14. Prosecution case mainly rests on the ocular version of complainant P.W.9 Jabbar, recovery of blood-stained earth Exh.P.1, 6 empties of 7.62 bore each P.2 and medical evidence. In his report incorporated into F.I.R. Exh.PA, Jabbar P.W.9 reported that he, his deceased uncle Rustam Khan and another uncle Maroof Khan (Not produced), were ploughing tractor in their own fields; that he and his deceased uncle Rustam Khan were sowing wheat in the fields when in the meantime five accused, all members of one family including the convict-appellant reached there and catching hold of the deceased from his hand, they proceeded and after covering some distance all of them started firing upon the deceased, which hit the deceased who died on the spot. Spite plan Exh.PB was prepared by I.O. On the pointation of the complainant P.W.9 Jabbar, while giving ocular version of the occurrence as against his stand in the F.I.R. Stated that at the relevant time he along with Maroof Khan were seated on "Ma'ala" of the tractor, whereas deceased was standing in the fields, when in the meanwhile the five accused including the convict-appellant came there and that it were absconding co-accused Zahir Shah and Farhad, who took the deceased from the fields and after covering 7/8 paces convict-appellant turned his weapon and started firing at the deceased, which resulted head injuries to the deceased. In his said statement (Examination-in-chief), he has not attributed a single fire shot to the absconding co-accused as against the one of firing by all the accused charged and the reason for doing so is understandable because others were absconders. The complainant remaining on the spot for further 45 minutes without making an attempt to shift the dead body is yet another factor suggesting that he was neither an eye-witness, nor a truthful one. Non-recovery of wheat meant for sowing, tractor and particularly absence of factum of any cultivation been done in the fields from the case file and more particularly non- association of the driver allegedly driving the tractor also creates serious dents in the prosecution case. Site plan Exh.PB prepared at the pointation of complainant Jabbar Khan would show that convict-appellant has been shown at point No,6, while other absconding accused at points 4, 5, 7 and 8, all surrounding the deceased at point No,1. The distance of point No,1 of the deceased and that of point No,6 attributed to convict-appellant is four paces. Six empties of 7.62 bore rifle have been recovered from point A, near points 4 and 5 and not near point 6, where the convict- appellant was present at the time of alleged occurrence. Not only that in the given positions per site plan, firing by the convict-appellant in the presence of his co-accused, thus taking risk to the lives of his own co-accused but also because of P.W.7 Dr.Muhammad Aslam having found one inlet and one exit wound on the person of the deceased, the entire story appears to be of an unseen occurrence and charge having been brought after considerable delay against five members of one family.
15. Additionally in the presence of F.I.Rs. Exh.D.l, D.2 and D.3, charging the deceased Rustam along with others on various occasions for different offences, his having been done to death by someone else cannot be ruled out.
16. It is the cardinal principle of criminal justice that even a single doubt would be sufficient to earn acquittal to an accused, while in the instant case, as highlighted above, there are numerous.
17. We have thus no option but to reverse the impugned judgment of conviction and sentence recorded on 10-9-2009 by Additional Sessions Judge-VII/ Special Court, Peshawar in Sessions case No,36/S.C. Of 2009. Accordingly, the appeal is accepted, the impugned judgment B of conviction and sentence is set aside, the convict-appellant is acquitted of the charge. He shall be set free forthwith, if not required in any other case.
' Murder Reference No,20 of 2009 is answered in negative.