'ATTAULLAH KHAN, J.---By way of this single judgment, we propose to dispose of Cr. Appeal No,114/2006, Cr.Appeal No,121/2006 and Cr. Revision No,26/2006 as all the three matters arise out of one and the same judgment. Vide judgment dated 12-8-2006 of learned Sessions Judge, Lakki Marwat, Convict-appellant Aurangzeb was convicted under section 302(b), P.P.C. And sentenced to imprisonment for life with fine of Rs,1,00,000 as compensation to be paid to the legal heirs of the deceased whereas accused-respondent Saadullah was given benefit of doubt and acquitted.
2. The brief facts of the prosecution case are that Shahabuddin complainant lodged a report to the effect that on the night of occurrence, his brother Javed Saeed and cousin Mir Aslam Khan were going to shops after offering Isha prayers. Javed Saeed was ahead followed by them. Bulbs were lit in the shops. All of a sudden, Aurangzeb, Humayun and Saadullah came out of shops duly armed with Kalashnikovs and started firing at the complainant party with which Javed Saeed got hit and injured whereas they escaped unhurt. The accused decamped from the spot after the occurrence.
When they attended Javed Saeed, he had expired by then. Motive for the occurrence was stated to be dispute over womenfolk and other trivial disputes.
3. After completion of usual investigation, challan was submitted against convict-appellant Aurangzeb and accused-respondent Saadullah in the Court of Sessions Judge, Lakki Marwat. The accused were charged formally to which they pleaded not guilty and claimed trial. The prosecution produced nine witnesses in support of its case. The accused were also examined under section 342, Cr.P.C. After conclusion of trial, impugned judgment was delivered by the learned trialCourt.
4. Learned counsel for the convict-appellant addressed arguments which are summarized below:-
(a) that the medical evidence contradicts the ocular testimony regarding the timing of death of the deceased,
(b) that the seat of injuries on the body of the deceased described in the postmortem report also contradicted the ocular evidence as well as site plan,
(c) that nine empties were fired from one and the same weapon and there is no evidence as to who fired it.
(d) that the presence of eye-witnesses is doubtful keeping in view their unhurt ' escape in spite of indiscriminate firing by the accused,
(e) that the evidence has not been believed regarding acquitted accused while the same evidence has been relied upon against the convict-appellant which is violative of principles of criminal Justice, and
(f) that the case is full of doubts, therefore, its benefit should go to the accused.
5. On the other hand, learned counsel for the complainant refuted the above arguments and submitted that the case stands proved against both the accused on the strength of ocular evidence corroborated by medical evidence, F.S.L report and recovery of empties.
6. We have considered the submissions of learned counsel for the parties and gone through the record in the light of which, our discussion is as under.
7. We would first discuss the conflict between medical evidence and testimony of eye-witnesses regarding timing of death of the deceased after the occurrence. The F.I.R. Is Exh. PA. It was lodged on 9-9-2004 at about 2145 hours. According to this report, the moment the complainant party consisting of Shahabuddin complainant and Mir Aslam P.W. Reached near the shops after offering prayers, they saw accused Aurangzeb, Humayun and Saadullah duly armed with Kalashnikovs who opened firing which hit Javed Saeed while the other members of the complainant party escaped unhurt. According to the report, the moment the complainant reached near his brother, he had succumbed to his injuries. This report is supported by Shahabuddin complainant in Court while appearing as P.W.6. In his statement before the Court, he has confirmed the contents of F.I.R. In this statement, he has also deposed that when they went near Javed Saeed, he was dead. The F.I.R.
Coupled with the statement of complainant as P.W.6 indicates that Javed Saeed deceased died immediately after receiving injuries. This means that the death of the deceased was instantaneous. If we look over the contents of the post-mortem report and statement of the doctor, another fact emerges regarding the time of death. The post-mortem report is on file as Exh.PM. In the relevant column, the time between injury and death is shown as 15-20 minutes. This timing of death is contradicted by post-mortem report. Here the first doubt arises and in A our opinion, it is damaging for the prosecution case. We may refer to the case of Sherdal alias Sher Muhammad v.
The State 1999 SCMR 697. According to the said judgment of Honourable apex Court, if the medical evidence is in conflict with the ocular evidence, the testimony of eyewitnesses must be corroborated. We find no corroboration in the present case. Similar view has been taken in the case of Aftab Zaman v. The State 1991 PCr.LJ 76. The relevant observations are reproduced below:-- "The prosecution witnesses are further belied by the medical evidence because according to the P.Ws, the deceased died there and then and none of the P.Ws. Has stated that the deceased survived for certain moments but according to the doctor death had occurred within 5-15 minutes after the receipt of injuries."
'The facts mentioned in the above judgment are exactly similar to the facts of the case in hand.
8. Keeping in view the observations made and the principles laid down by the apex Court and this Court, we are of the opinion that the conflict regarding timing of death is fatal to the prosecution case and casts doubt about the manner of occurrence and even it makes doubtful the presence of eye-witnesses.
9. According to the medical report, the injuries on the body of the deceased were on the back of skull. The doctor who conducted post-mortem examination appeared as P.W.2. His statement regarding wounds is reproduced below:-- "Wounds.
(1) One entry wound of fire-arm on the back of skull at the occipital area size 1/3" x 1/3", skin muscle deep.
(2) An exit wound of wound No,1 causing much destruction to the organs like expulsion of the right eyeball and adjacent bone on the medial side of the eyeball, size 3" x 3".
(3) Entry wound of fire-arm on lateral aspect of right knee joint 1/4" x 1/4" in size.
(4) Exit wound of wound No,3 on medial aspect of right knee joint size 2"x 2".
Scalp, skull injured Membrane, brain, blood vessel injured.
' Stomach was healthy and full of contents."
' The statement of the doctor reproduced above discloses that the entry wounds were on the back of the body 'of the deceased. If we place this statement in juxtaposition with the statement of complainant, it discloses a different scenario. This witness has stated that the deceased was going ahead of him and Mir Aslam and when they reached the spot, he was fired at. The site plan Exh.PB would reveal that at point No,1 deceased was present, on point No,2 Shahabuddin complainant and at point No,3 Mir Aslam eye-witness were present while point No,4 is the place wherefrom Aurangzeb convict-appellant fired at the complainant party and deceased. Point No,1 where the deceased was present is towards south while the convict appellant was towards north-east. His right side was exposed towards the convict-appellant and not back. Keeping in view the site plan coupled with the statement of complainant, the seat of injuries should have been on right side and not on back. This also casts some doubt about the involvement of the accused and the presence of the complainant on the spot at the time of occurrence.
10. Now coming to the recovery of empties, these were taken into possession by the Investigating Officer through recovery memo. Exh. P. W. 2/1 . According to the memo. Nine empties 7.62 bore were recovered from the place where accused were shown at the time of occurrence. These empties were sent for analysis to the Laboratory and the report is Exh.P.W.5/4. According to this report, all these nine empties were fired from one and the same bore weapon. If we compare this report with the F.I.R. And statements of both the eye-witnesses, a confusion creates about the involvement of the accused. The accused are three in number. According to the eyewitnesses, all of them armed with Kalashnikovs opened fires which hit the deceased. They have not identified the actual culprit with whom fire the deceased got injured. Keeping in view the FSL report, it is clear that only one accused had fired with which the deceased was hit. Two propositions arise. One is that only one accused fired because nine recovered empties were fired from one and the same Kalashnikov.
Two out of three accused did not fire because no other empty has been recovered. Had they fired, some of the empties would have been recovered. The second proposition is that who fired the effective shot. This fact is unknown. These two propositions have made the prosecution case unbelievable as far as the convict-appellant is concerned. It is strange as to how the learned trial Court picked up the convict-appellant and connected him with the guilt.
11. The next argument of learned counsel for the convict-appellant is regarding the presence of two eye-witnesses namely Shahabuddin and Mir Aslam. According to the learned counsel, all the three accused opened firing at the deceased and these two eye-witnesses but they escaped unhurt. A prudent mind would not believe because the deceased and the eyewitnesses were at a distance of few paces from each other. In such like situation, it is very difficult for safe escape of two eyewitnesses. Moreover, nothing has been pointed out by the prosecution as to why the deceased was selected and the remaining two eye-witnesses were excluded. This aspect makes the presence of the witnesses doubtful. We may refer to the case of Muhammad Farooq and another. v. The State 2006 SCMR 1707 wherein the following principle has been laid down:-- "We will first like to examine the question whether presence of P.W.9 at the spot, could in the circumstances, be believed. It may be noted that the deceased had twenty-five injuries out of which eighteen were entry wounds. Besides the deceased Muhammad Abbas, P.W.9 was also challaned in the case of murder of Saeed, the brother of appellant. Had P.W.9 been present on the spot, he was not likely to be spared because the number of injuries on the person of deceased show that at least eighteen rounds were fired. It only shows the degree of venom the killer had for the deceased. The number of injuries on the person of deceased also leads us to believe that more than one person participated in the occurrence. Therefore, it is unnatural and improbable that if P.W.9 was present at the spot, he would not be targeted."
'Similar principles have been laid down in the case of Khawaja Ahmad Khan and 2 others v. The State 1998 PCr.LJ 1192 which read as under:- "All alluded to above, the two, witnesses, in addition to their father, had direct enmity with the assailants. The father was fired upon but the two witnesses were spared for no ostensible reason at all except that they be allowed to appear as witnesses against them. It is again surprising to note that almost all of the five appeared, to be armed with shotguns and they had, practically fired at both the witnesses. It does not appeal to reason that from such a short distance of 7/8 paces, five persons would miss the targets and that too with shotguns. The absolute escape of the witnesses unhurt is unnatural as well as highly improbable.
'We are persuaded to infer that the learned trial Judge also was not sure of the presence of the two witnesses because he acquitted the appellants under the charge of attempted murder. We need to point out that even if the attempt was ineffective, it could have amounted to an attempted murder. The presence of the witnesses is, therefore, seriously doubtful."
Keeping in view the above principles, we conclude that the escape of the two P.Ws. Unhurt leads one to infer that they were not present at the spot at the time of occurrence.
12. The further arguments of learned counsel for the convict-appellant is that the learned trial Court believed evidence in respect of convicted accused while disbelieved the same in respect of acquitted accused. We have considered this point. The material against the accused is consisting of P.Ws.6 and 7. Both are stated to be eye-witnesses. The learned trial Court has held that Saadullah acquitted accused was an employee of Agriculture Department and at the relevant time he was on duty. The learned trial Court believed this defence and acquitted him. Now the question arises as to how one of the accused' who was charged by both the eye-witnesses' for firing at the deceased and complainant party was acquitted. The opinion of the trial Court means that the ocular evidence regarding the involvement of Saadullah accused is not correct. If it is so, then we doubt that the same evidence is to be believed against the convicted accused. Normally, the evidence not believed in respect of acquitted accused cannot be believed against co-accused unless circumstances so warrant. The judgment of the trial Court shows that one of the accused (acquitted accused) was found innocent and was believed to have been dishonestly implicated in the crime. In such like situation, the other accused are entitled to acquittal. The Courts have gone to the extent that in similar situation, even an accused not proved to have been falsely implicated is entitled to acquittal. We may refer to PLD 1971 Karachi 156. Similar view has been taken in the case of Ghulam Nazik v. The State 2009 PCr.LJ 321 wherein it was held that the evidence of the eye- witnesses disbelieved qua acquitted accused cannot be made the basis of conviction of other co- accused. The relevant portion of the judgment is reproduced below:-- "Both of the witnesses have been disbelieved by the learned trial Court qua the acquitted accused.
In the above noted circumstances, their statements need deeper scrutiny and conviction can be based only if their statements are supported by very strong independent corroboratory evidence.
Both the P. Ws. Made dishonest improvements during trial by stating that they had reached the house of appellant one day prior to the occurrence instead of two days prior to the occurrence."
Keeping in view the above principle, we are of the opinion that the learned trial Court has fallen into error in believing the evidence against the convicted accused which was not believed against the acquitted co-accused in the peculiar circumstances in the case in hand, because this principle cannot be applied universally to all cases.
13. Apart from the above, we are also of the view that the case is full of doubts. Only one doubt is sufficient to discredit the entire evidence and to favour the accused. It is not necessary that a number of doubts should exist. Even a single circumstance creating reasonable doubt about the guilt of accused entitles him to acquittal and it is his right. Reference may be made to the case of Muhammad Akram v. The State 2009 SCMR 230 wherein the following principle has been laid down:-- "It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as, a matter of right."
14. The nutshell of our above discussion is that the prosecution case is not free from doubts. The medical evidence contradicts the ocular version regarding time of death and seat of injuries. The presence of eye-witnesses is not proved beyond doubt. The actual culprit who fired at the deceased is not known. It is also unsafe to believe evidence in respect of one of the accused which was not believed regarding the acquitted accused. The benefit of doubt must go to the convict- appellant. So, the convict-appellant deserves acquittal.
15. As far as the appeal against acquittal is concerned, it has no merits keeping in view our finding in the case of convict-appellant Aurangzeb.
16. So far as the criminal revision for enhancement of the sentence of the convict- appellant is concerned, since we have observed above that the convict-appellant deserved acquittal, therefore, question of enhancement of sentence does not arise.
17. For the reasons mentioned above, we, while dismissing Criminal Appeal No,121/2006 and Criminal Revision No,26/2006, accepted Criminal Appeal No,114/2006, set aside the conviction and sentence of convict-appellant Aurangzeb and acquit him of the charges levelled against him. He be set free forthwith if not required in any other case.