' ATTAULLAH KHAN, J.- Gulzaman, has filed this appeal under section 417(a)(2), Cr.P.C., against the judgment dated 8-4-2005 passed by learned Additional Sessions Judge-Ill, Bannu in case F.I.R.
No.215 dated 3-12-2003 under sections 302/324/34, P.P.C, of Police Station, Ghoriwala, District Bannu, whereby the accused/respondent Sherin . Bahadur and Sultan Bahadur were acquitted of the charges.
2. Facts of the case in brief are that on 3-12-2003 at about 1345 hours complainant lodged the report to the effect that on the fateful day at subh vela he along with his father were on their way for arbitration to village Bhangi Khan Mughal Khel and on reaching in village Balo Michan Khel, his father told that Sher Zaman, his brother having married and residing in the said village was to meet him. Thus his said brother, who was running a shop, met him and his father informed him about their coming for arbitration. On this his brother left the shop and accompanied them in order to give farewell to them. His said brother was going ahead of them in some paces. At about 1250 hours when reached near the baithak of Sherin Bahadiur, suddenly, Sherin Bahadur armed with Kalashnikov and Sultan Bahadur armed with D.B. Shotgun emerged on the scene. Sultan Bahadur directed has brother Sherin Bahadur to kill, over which Sherin Bahadur fired with his kalashnikov at Sher Khan with which he was injured and fell to the ground and expired there and then. Thereafter, Sultan Bahadur also fired at them. Whereafter accused went inside their baithak. Motive for the offence was given to be disputed over women folk.
3. After the arrest and completion of investigation, complete challan was put in Court where they were summoned and after fulfilling all the codal formalities, they were formally charge sheeted to which accused did not plead guilty and claimed trial.
4. In order to prove its case against the accused, the prosecution produced and examined eleven witnesses and closed its evidence. Thereafter statements of accused were recorded under section 342, Cr.P.C., but they denied the allegation levelled against them and professed innocence, however, neither, they wished to be examined on Oath nor produced any defense evidence.
5. The learned trial Court on evaluating the evidence brought on record and hearing arguments of learned counsel for the parties, came to the conclusion that the prosecution has not been able to prove its case against the accused beyond any shadow of reasonable doubt and, therefore, by extending the benefit of doubt, the accused were acqyitted of the charges levelled against them.
6. Feeling aggrieved, complainant/ appellant has filed this appeal against the aforesaid verdict of the learned trial Judge.
7. Needless to mention here that on 30-5-2005 a Division Bench of this Court while hearing the appeal in motion has admitted it for regular hearing only to the extent of accused-respondent Sherin Bahadur while it has been dismissed in limine in respect of other accused- respondent Sultan Bahadur.
8. Learned counsel for the appellant vehemently argued that the impugned judgment of acquittal recorded in favour of accused-respondent Sherin Bahadur on the grounds:- ' Firstly: That the occurrence has been witnessed by two witnesses; ' Secondly: that the F.I.R, was lodged with a reasonable promptitude: ' Thirdly: that the contradictions if any in the medical evidence would not effect the prosecution case which is otherwise proved through ocular evidence; ' Fourthly: that the occurrence is a broad-day-light and there is no chance of mistaken identity or false implication and ' Fifthly: that the recoveries of empties have also been made in the case which reasonably connects the accused-respondent Sherin Bahadur with the commission of crime.
9. On the other hand, the leamed counsel for respondent-accused Sherin Bahadur submitted that there are gross material contradictions in the statements of two eye-witnesses i,e,, P.W.9 and P.W.10, that both these witnesses are closely related to deceased and inimical, therefore, their evidence needed independent corroboration which is missing in this case. He argued that the medical evidence contradicts the version of the complainant in the F.I.R, regarding the participation of the accused in the offence because of recovery of pellets from the body of the deceased.
10. We have carefully examined record of the case and anxiously considered the arguments of learned counsel for the parties.
11. We would first discuss the statement of P.W.4 Dr.Mir Aazad Khan, who was during the days of occurrence, posted as Medical Officer, DHQ Hospital, Bannu. He conducted autopsy on the dead body of Sher Zaman deceased on 3-12-2003 and found the following :- WOUNDS:
1. Eight different size entry F.A. Wounds on the front of neck, l/2xl/2" and 1/lxl/l" at different size.
2. One F.A. Entry wound on the chin (Mandible) about 2x2".
3. Graze F.A. Entry wound on the left side of mandible.
4. Four pellets are removed from the right shoulder and scapula.
5. Four foreign body are present in the body. X-Ray of chest is done.
' Muscles, Bones and Joints: ' Mandible fracture, Cervical 2, 3 and 4 fractured. Spinal cord damaged cervical region.
' Thorax: ' Right first and second ribs fractured. Pleurae right and left pleurae injured. Larynx and trachea injured, right and left lungs injured, blood vessels injured, rest healthy.
' Abdomen: ' Healthy except mouth injured.
' Right and left lungs were injured, pleurae injured, cervical regions, spinal card injured. Neck deformed. Fractured C2, C-3 and C-4 fractured right 1,2 ribs fractured. Remarks: ' In his opinion the cause of death was due to cervical regions, spinal card damaged and right and left lungs and pleurae were injured.
' Probable time between ' Injury and death ................. 5-10 minutes ' Between death and PM ........ 02-03 hours ' The PM documents and garments of the deceased were handed over to the constable Muhammad Roshan. The PM report is Exh.PW 4/1 which correctly bear his signature while injury sheet and inquest report Exh.PW 4/2 and 4/3 also correctly bear his endorsement.
12. Perusal of statement of this P.W. Reveals that four pellets were removed from the right shoulder and scapula of the deceased which reflects that the deceased was also fired with 12 bore shotgun.
If we put in juxta position this version of medical evidence with the F.I.R. As well as statement of P.W.9, it would take a different turn for the reason that in the F.I.R. Accused Sultan Bahadur though shown to have been remained with D.B. Shotgun has been attributed the role of directing his brother when accused Sherin Bahadur respondent to fire at the deceased. The F.I.R. Also shows that firing is attributed to Sherin Bahadur, respondent. This fact is also stated by P.W.9 Gulzaman, who is author of the F.I.R. And recorded his statement as P.W.9 in the trial Court. According to him that; "My brother Sher Zaman was ahead of us, that in the meanwhile, accused Sherin Bahadur duly armed with Kalashnikov, Sultan Bahadur duly armed with DB shotgun came out of their baithak.
Sultan Bahadur ordered Sherin Bahadur to shoot at us. On this Sherin Bahadur fired at us with his Kalashnikov to commit qatl-e-amd of us. My brother was hit and fell to the ground."
' The above portion of statement of P.W.9 prove that the firing on the deceased was made by Sherin Bahadur while Sultan Bahadur armed with shotgun, has been attributed no role of firing on the deceased. The recovery of pellets from the body of the deceased suggests that the content of F.I.R. Regarding the role of accused-respondent Sherin Bahadur is not correct. In this way either P.W.9 is telling a lie or P.W.4 Dr. Mir Aazad Khan.
13. A grave doubt has arisen which goes in favour of the accused-respondent Sherin Bahadur.
14. The statement of P.W.10 is also worth consideration. According to him, he was allegedly accompanied the deceased and the complainant at the time of occurrence. He has attributed the role of firing to, both the accused which is contradictory with the statement of P.W.9 complainant. A question was put to P.W.10 whose reply is as under:- "Sherin Bahadur orders to kill".
15. This is altogether different from the version of P.W.9. According to him Sultan Bahadur ordered Sherin Bahadur to kill, therefore, this is material contradiction in the statements of two witnesses.
Moreover, these two witnesses are related to the deceased.
16. The F.I.R. Also reveals that there was a motive of dispute over women folk. This motive has been disclosed by both the eye-witnesses. So they are not only nearer relatives of the deceased but also interested, therefore, great care and caution is to be taken while assessing their evidence.
17. As stated above, both the witnesses were closely related and inimical towards the accused, therefore, rule of prudence is that the evidence of such witness required independent corroboration. The reason is that interested eye-witnesses closely related and on inimical terms with the accused and, therefore, their depositions require scrutiny. Reliance may be placed on PLD 2004 Pesh.
294. The Apex Court has held certain principles regarding appreciation of evidence and interested witnesses. Reference is given to PLD 1962 SC 269.
18. P.W.9 while appearing before the Court has stated in cross-examination that his father was present in the police station at the time of report but his thumb impression or signed on the same is not available, which further creates dent in the case of prosecution about the presence of said P.W. The Investigating Officer in his cross-examination has stated that during the spot inspection, he had found trail of blood from main entrance gate of the baithak of Sherin Bahadur. He had further pointed out point-1 in the site plan where the deceased was fired at but he has failed to record statement of any person in respect of this fact.
19. From the aforesaid facts and circumstances we have come to the conclusion that the case of prosecution was full of doubts.
20. In case where multiple doubts arises the benefit goes to the accused in the',, shape of acquittal.
In this case, we would first refer 2002 PCr.LJ 1312 wherein it is held that; "It was not necessary that there should be many circumstances creating doubts. If there was one circumstance which created a reasonable doubt in prudent mind about guilt of the accused he would be entitled to its benefit."
21. Similar principle has been laid down in PLD 2003 Peshawar-6 wherein the observations made are that; "For giving benefit of doubt more than one infirmity is not required and a single infirmity creating reasonable doubt is sufficient which must go in favour of accused."
22. This Court in case reported in 2003 YLR 777 has held that; "For the purpose of giving benefit of doubt to an accused person more than one infirmity is not required. Even a single infirmity creating doubt is sufficient."
23. The latest view in this regard is taken by Hon'ble Apex Court of Pakistan in case titled Muhammad Akram v. The State reported in PLD 2009 SCM R 230 wherein it is held that; "The nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCM R 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 the 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".
24. So in view of the above principles laid down by the Superior Courts we are of the opinion that this case being full of multiple doubts, therefore, the accused! Appellant deserves benefit of doubt which has correctly been extended to him.
25. Even the ocular account the two I witnesses' i,e,, Gulzaman and his father Akbar Zaman is not in conformity with each other. Besides this, the medical evidence is also not supporting the version of the complainant; therefore, we are of the confirmed view that the prosecution has not been able to prove its case against the accused-respondent and the learned trial Judge has correctly assessed the evidence brought on record in acquitting the accused-respondents.
26. Further when an accused is acquitted by a competent Court of law after facing agonies of protected trial, therefore, he earn the presumption of double innocence which could not be interfered or disputed slightly unless and until a strong and exceptional grounds are prove in the order of acquittal, which are lacking in the case in hand.
27. We may refer to 2009 SCM R 946 wherein it is held that; "It is a settled law that before the order of acquittal is reversed; it must be shown that judgment of the learned trial Court was not reasonable or wrong. If two conclusions were equally possible the order of acquittal should not be reversed."
28. Similar principles are available in PLD 1985 SC 11 wherein it is observed that; "However, notwithstanding the diversity of facts and circumstances of each case, amongst others, some of the important and consistently followed principles can be clearly visualized from the cited and other case law on the question of setting aside an acquittal by this Court which are as follows:-- "In an appeal against acquittal, the Supreme Court would not, on principle, ordinarily interfere and instead would give due weight and consideration to the findings of Courts acquitting the accused.
This approach is slightly different than that in an appeal against conviction when leave is granted only for the reappraisal of evidence when then is undertaken so as to see that benefit of reasonable doubt should be extended to the accused. This difference of approach is mainly conditioned by in fact that the acquittal carries with it the two well-accepted presumptions. One initial till found guilty the accused and two that again after the trial a Court below confirmed the presumption of innocence".
29. We would also rely upon case titled Muhammad Khan v. Mir Abbas and four others reported in 2010 M LD 817 delivered by a Bench of this Court.
30. Keeping in view the above observations of the Apex Court we examined the case in hand and safely reached to the conclusion that the evidence in this case is not enough to record conviction.
31. In view of our above discussion, we find no substance in this appeal against acquittal which is hereby dismissed.