JUDGMENT MAZHAR ALAM KHAN MIANKHEL, J.---The appellant herein, accused of case F.I.R. No. 766 dated 7-7-2010 Police , Station Hoti, Mardan, registered under section 324/34, P.P.C. Has questioned his conviction recorded by Additional Sessions Judge-II, Mardan vide his judgment dated 9-4-2010 whereby he was convicted under sections 324, P.P.C. And was sentenced to undergo seven years R.I. And to pay a fine of Rs.100,000 and in default to further undergo six months S.I. He was also convicted under section 337-F (v),.P.P.C. And was sentenced to undergo two years' R.I. And to pay a sum of Rs.50,000 as "Daman" to the injured complainant and was ordered to be kept in judicial lock up till the payment of amount of "Daman". Benefit of section 382-B, Cr.P.C. Was also extended to him.
2. That on the report of Gul Hayat, injured complainant, a case under the above said Sections of law was registered vide F.I.R. Ibid against the appellant, his brother Akhtar Ali and their father Muhammad son of Sherzada for attempting to cause qatl-e-and of complainant and thereby he received injuries on his person by means of fire arms. Motive for the offence was an altercation a day before.
3. After registration of the case, investigation was conducted and the case was sent to the Court of Additional Sessions Judge-II, Mardan who after trial of the case, acquitted Muhammad son of Sherzada and Akhtar Ali son of Muhammad whereas appellant was convicted as stated above.
4. Learned counsel for the appellant while alleging the innocence of the appellant submitted that the prosecution has failed to prove its case against the appellant. The evidence of the prosecution is full of material contradictions and improvements. A general role of firing was attributed to all the three accused and no specific role was assigned to any one of the accused in the F.I.R. Whereas the complainant and so called eye-witness Muhammad Ali P.W.4, have attributed the specific role to the present appellant which has not been proved through any independent evidence. Motive alleged in the F.I.R. Was also not proved. The statements of the prosecution witnesses being the interested ones cannot be relied upon.
5. As against that, learned counsel for the State, Miss Surriya Jabeen, assisted by counsel for the complainant submitted that the appellant along with his co-accused was directly charged by the complainant in his report. The parties were known to each other and being a broad daylight occurrence, there was no chance of misidentification, the guilt of the appellant was proved on the record, all the witnesses are consistent on the point of involvement of the appellant and the conviction recorded by the trial Court was in accordance with law and evidence on the record.
6. Learned counsel for the parties were heard and record of the case was perused. The prosecution in support of its case produced ten witnesses. On the strength of same evidence, the two co- accused, named above, were acquitted of the charges levelled against them whereas the appellant was convicted and sentenced as stated above.
7. The complainant in his report has stated that the occurrence was witnessed by his father Muhammad Hayat who was present at the spot at relevant time. This very fact makes him a very important witness who could have given a true and correct ocular account of the case but during the trial, the prosecution abandoned this very witness which on the face of it appears to be the first blow to the prosecution case. The statement of complainant would again be of no worth reliance when in his first report made to the police, he attributes a general role of firing to all the three accused whereas he in his statement as P.W.3 makes improvement and attributes the effective role to the present appellant. The place of occurrence as given by the complainant in his report and narrated by the complainant in his statement as P.W.3 again differs. The complainant in his report has stated that he Was present along with his father in his fields when the accused attacked him but the site plan prepared by the I.O. At the instance of father of the complainant namely Muhammad Hayat is a thoroughfare situated at some distance from their fields. Similarly working in the fields is also not proved on the record. The complainant does not mention the presence of any other person except his father at the time of occurrence whereas P.W.4 Muhammad Ali claims himself along with Khan Said to be the eye-witnesses of the occurrence who states that he along with Khan Said overpowered the accused and snatched pistols from them. The said Khan Said was again not produced as a witness allegedly to be the person who snatched the pistol from the present appellant and taken into possession vide recovery memo. Exh.P.W.7/2. The statement of P.W.4 cannot be believed as he receives information of the altercation a night before between the parties in his fields and reaches the spot after 30/40 minutes and witnessed the firing from a distance of 100/150 paces and he further witnessed from the said distance that it was the appellant whose shot proved effective and complainant received injury. His said point of presence and witnessing the occurrence has not been shown in the site plan. When there were sugarcane crops and other crops like rice etc. In the adjacent fields, whether from such place/point, it was possible for him to specifically allege the effective role of firing to the appellant. His presence has even not been shown by the complainant at the time of occurrence in spite of the fact that he claims to be the person who overpowered the accused and snatched the pistol from the accused. Presence of such a person cannot be ignored or overlooked. Statement of such a person cannot be of worth reliance. Non-mentioning of said witness by the complainant in his report and the version put forth by said witness raises many questions and doubts about his presence at the spot at the time of occurrence and his credibility as a witness. Such a witness could not be believed for convicting a person. Similarly, the statement of P.W.6 Arif son of Aftab also appears to be of no worth reliance as he is the immediate neighbor of the appellant whose house is situated at a distance of three kilometers from the place of occurrence and he explained his presence at the spot as just for nothing which clearly speaks that he too is an interested witness.
8. Though there was no FSL report when the trial of the case initiated and the I.O. Produced the FSL report in his statement production of which at such a belated stage was objected to by the learned counsel for defence but even if the same is taken into consideration, this report again would be of no help to the case of the prosecution as the very recovery of the pistol from the possession of the appellant has not been proved on the record. One Khan Said allegedly snatched the pistol from appellant and produced to the police but Said Khan Said was not produced as a witness.
9. A specific motive was also alleged by the complainant in his report but the prosecution has failed to prove the same. Under the law, presence of motive for a crime is not necessary but once a motive is alleged, then it becomes the duty of the prosecution to prove the same. So, in the given circumstances, the prosecution has bitterly failed to prove a case against the appellant through confidence inspiring evidence and without any reasonable doubt.
10. So, what has been discussed above, makes it absolutely clear that in the given circumstances, conviction of the appellant cannot be maintained. So, the appeal in hand is allowed and conviction and sentence recorded by the learned Additional Sessions Judge-II, Mardan vide his judgment dated 9-4-2010 is hereby set aside. The appellant be set free forthwith if not required in any other case.
These are the reasons for my short order of even date i.e. 6-9-2010.