Jamal Khan Mandokhail, J.--Briefly stated facts of the case are that, the appellant was arrested vide FIR No, 06 of 2006 of Police Station Sunni, registered on the complaint of one, Ghulam Sarwar, under Sections 302, 34, 147, 148, 149 PPC on the charge of murder of Muhammad Ismail and also, for the injuries caused to complainant. On arrest of appellant, incomplete challan was submitted in the Court of Additional Sessions Judge-II, Sibi. In order to prove the case, the prosecution has produced six witnesses. In reply, the appellant was examined under Section 342 Cr.P.C. On conclusion of case and after hearing the parties, the trial Court has convicted and sentenced the appellant under Section 302 PPC for life with fine of Rs, 100,000/-payable to legal heirs of deceased, in default whereof to further undergo for three years S.I. He has further been convicted under Section 324 PPC for five years R.I. with fine of Rs, 30,000/-, in default whereof, to further undergo for one year. S.I. The appellant has also been convicted under Section 147 PPC for two years R.I. with fine of Rs, 10,000/-, in default whereof, to further undergo for six months S.I. and also convicted under Section 148 PPC for three years R.I. and fine of Rs, 15,000/-, in default whereof to further undergo for 9 months S.I. with benefit of Section 382-B Cr.P.C. All the sentence has been ordered to run concurrently, hence this appeal.
2. Learned counsel for the pauper appellant has submitted that the appellant has wrongly been involved in the case. The prosecution has not been able to prove the charge against him, because main role has been assigned to one of the absconding accused. The complainant has not come forward to support his case, whereas, there are contradictions between the statements of so- called two eye-witnesses. The trial Court has not considered the case in the light of evidence, as such, judgment impugned is bad in the eyes of law, which requires to be set aside.
3. On the other hand, learned counsel for State has vehemently opposed the contention put forth by the counsel for appellant and has submitted that the prosecution case is supported by two (2) eyewitnesses. FIR in the case has promptly been registered and the trial Court has rightly convicted and sentenced the appellant.
4. We have heard learned counsels for the parties and have gone through record, as well. Before going to discuss the statements of witnesses, it is important to mention here that, complainant in this case is Ghulam Sarwar, but he has failed to appear before the Court to record his statement.
According to CW-2, said Ghulam Sarwar is involved in a murder case and has been declared absconder, for such reason, he could not be found.
Now, coming to the statement of PW-1, who claims to be an eye-witnesses of the occurrence stated that, on 21.8.2006 he along with Khuda Bakhsh PW-2, deceased Muhammad Ismail and complainant Ghulam Sarwar were present in the Drawing Room of Muhammad Ismail. In the meanwhile, Abdul Sattar, appellant, Abdul Hai, Abdul Salam and Jangi Khan attacked upon them (sic).
(Sic) Jangi Khan was empty handed, whereas, the appellant and remaining accused persons were armed with Kalashnikov. Due to firing of accused persons, Muhammad Ismail got died and Ghulam Sarwar got injured. From the firing of Abdul Sattar, Jangi Khan was also died.
Whereafter, all the accused persons fled away from the place of occurrence. The witness in his cross-examination has stated that firing was continued for about five to ten minutes, during which, he had witness Khuda Bakhsh took shelter inside the room. PW-2 is a recovery witness, in whose presence, blood-stained earth and six empties of Kalashnikov were taken into possession through separate recovery memos. and sealed parcel separately. PW-3 is Khuda Bakhsh, who also claims to be an eye-witnesses and narrated that on 21.08.2006, he had Kareem Bakhsh were sitting with Muhammad Ismail, all of a sudden five persons i,e, Sattar, Abdul Salam, Abdul Hai, Bijar Khan (appellant) and Jangi Khan attacked. Out of them, Jangi Khan was empty handed, scuffled with Muhammad Ismail, whereas, the remaining ones were armed with Kalashnikov. In the meantime, Abdul Sattar opened firing, in result whereof, Jangi Khan and Muhammad Ismail were killed, whereas, Ghulam Sarwar was injured. The witness further states that due to firing, they got shelter in the drawing room, whereafter, the assailants fled away. He identified the appellant in the Court.
PW-4 is a Medical Officer, who conducted examination of the dead body of Muhammad Ismail and found a single entrance bullet wound on the chest and exist wound on the back of chest. The doctor opined that the cause of death occurred due to bleeding and shock. He also examined injured Ghulam Sarwar and found two entrance wounds, one, on the right leg in the muscle back side and the other, on back side of muscle.
PW-5 and PW-6, and PW-7 are Investigating Officer of the case, as they were being transferred from their posts one after the other. PW5 has conducted most of the investigation; he in his statement has given detail about the proceedings. He states that he has taken into possession six empties from the place of occurrence and referred the injured for treatment to Medical Officer and also got examined the dead body from him. During cross-examination, he admitted that two dead bodies were fond lying at the place of occurrence. One was of Muhammad Ismail, while the other was of Jangi Khan. He further admits that, he received a report from one Allah Dad about the murder of Jangi Khan, on the basis of which, FIR was registered, wherein, complainant of present case, i,e, Ghulam Sarwar, was nominated, but he has not been arrested.
On scrutiny of above statements, PW-3 admits that Jangi Khan, who was empty handed, started quarreling with Muhammad Ismail. Here, question arises as to how the companions of Jangi Khan could start firing upon Muhammad Ismail, knowingly that, both of them are scuffled. A prudent man cannot believe such story, because in presence of four armed persons, as to why an unarmed man moved to quarrel with Muhammad Ismail.
Furthermore, it has also come on record through PW-5, LO that Ghulam Sarwar was held responsible for committing murder of Jangi Khan. If we consider the factum of recovery of six empties from the place of occurrence and also take note of the fact that deceased Ismail received a single shot, whereas, inspite of the fact that PW-5 has admitted that he prepared inquest report of Jangi Khan as well, but has not produced the same before the Court without assigning any reason. This fact leads us to the conclusion that in all, six shots were fired, out of which, one hit deceased Muhammad Ismail and out of rest of the bullets, the few might hit Bijar Khan. On record, it is proved that Ghulam Sarwar has been nominated in the FIR for committing death of Jangi Khan, hence, there remains probability that, Ghulam Sarwar could have also been murdered due to the firing of Ghulam Sarwar.
Even otherwise, as per statement of PW-3 that, Muhammad Ismail and Jangi Khan died clue to firing of absconding accused Abdul Sattar, if his statement is believed in toto, even then, the prosecution has not attributed any active role to the present appellant being co-accused.
Moreover, no motive has been assigned towards appellant to take life of the deceased, nor any intention or reasonable knowledge of Qatl-e-Amd of deceased on the part of appellant has been proved by the prosecution. If for the sack of arguments presence of appellant at the place of occurrence is believed, still, the prosecution has not been able to prove his common intention with principle accused to cause death of the deceased. In this behalf, reliance has been -placed in a case of Abdul Khalique vs. State, reported in 2006 SCM R 1886. Relevant portion is reproduced herein below:-- "(b) Penal Code (XLV of 1860)-- ----S. 302/34--Reappraisal of evidence--Vicarious liability--Common intention--Proof--Benefit of doubt--Accused was driver of the vehicle which was used by assailants at the time of commission of offence wherein two persons were murdered--Main accused who were attributed the role of firing at deceased persons had absconded but driver of the vehicle was arrested--Driver was convicted at trial and sentenced to life imprisonment on the charge of vicarious liability, which was maintained by High Court--Plea raised by accused was that neither he had any motive nor any role was attributed to him--Validity--No evidence worth the name had been led showing that there was a prior concert of mind or planning regarding commission of offence-- Proclaimed offenders fired upon deceased and prosecution failed to prove that the accused had any knowledge about the incident, what to say of the prior concert of mind and planning--Being driver of the case accused could not be held vicariously liable for commission of alleged offence in absence of any specific role attributed to him regarding facilitation or abetment--High Court had relied upon motive without having taken into consideration that proclaimed offender had nourished grudge and enmity against complainant party--Case was fit one where benefit of doubt must be given to accused--Conviction and sentence passed by trial Court and maintained by Lower Appellate Court were set aside and accused was acquitted--[Pp. B & D."
The entire prosecution case rests upon statements of PW-1 and PW-3, who claim to be the eye- witnesses, but their statements contradict each other regarding manner of occurrence.
5. It is also a fact that though the empties were recovered from the place of occurrence, but no recovery of fire-arm was effected from the possession of appellant to match the recovered empties. It is also important to mention here that the I.O. has prepared map of the place of occurrence and produced as Ex. P/5-D. In the said map, it has not been mentioned, as to from where the said empties were recovered. Since it has come on record through PW-1 that, firing was made by two persons, therefore, it was incumbent upon the I.O. to have shown two places, from where, the so-called empties were recovered. By not mentioning this fact in the map, doubt has been created, rather it leads us to a presumption that, the complaint, who has already been nominated in the FIR for committing murder of Jangi Khan, has committed murder of both the deceased.
One of another important aspect of the case is that, PW-2, in his statement, has stated that he, along with the I.O., went to the house of Muhammad Ismail, where his dead body was lying outside his house and, thereafter, the I.O. collected the blood-stained earth and six empties, sealed them in a parcel. On the other hand, again, referring to the map, there is no mention of the dead body, lying outside the house of deceased, as well as, the blood on the earth and, also, the empties have not been shown in the said documents. Statement of PW-2 on this point contradicts the statement of DW-5 and map, prepared by him.
PW-3 further deposed that the empties were spread just near the dead body. The I.O, while preparing the map, has shown presence of Abdul Sattar and other accused persons away from the dead body at Point No,
3. Both the statements of PW-3, if considered in juxta-position with the map, it proves the fact that the place, where accused/appellants have been shown, no map was found, rather the empties were found near the dead body. The witnesses have admitted the fact that deceased and his son, Ghulam Sarwar, were present in their drawing room and, again, if we consider the factum of registration of FIR, by the complainant of present case, there is a presumption, the deceased might have been killed by the firing of his own son.
PW-5 has produced another document as Ex. P/5-E, which is a referred chit in respect of injured complainant. Said document contains date as 21.08.2006 and time as 6:00 p.m. To the contrary, PW-4, the Medical Officer, when appeared, he has produced a certificate as Ex. P/4-B, in which, he has mentioned the date of arrival of injured as 21.08.2006 and time as 4:00 p.m. Here, there is a clear contradiction regarding time of examination of injured.
In the present case, one, Mulla Nabi son of Mehrab Khan has also been shown as eye-witness of the occurrence, but his statement has not been recorded and he has been dropped without assigning any reason. In view of contradiction amongst the statements of witnesses, the statement of said eye-witness was most important, but by not producing him, will show that, had he been produced, he might have not supported the prosecution story, that is why, he has not been examined. Without prejudice to the above, even otherwise, the prosecution Story has not been supported by statement of complainant, as he remained absconder and did not appear to corroborate his own complainant. The Court had made findings to call him, but CW-2 appeared and made a statement that, since he has been declared as proclaimed offender, therefore, he was not found.
6. We have observed that the trial Court has failed to properly consider the evidence in accordance with the settled principles of law and judgments delivered by Apex Courts, which resulted into serious miscarriage of justice. It is a fit case, where benefit of doubt must have been given to the appellant. The evidence produced by prosecution do3s not inspire confidence, as such, is not worthy of reliance. The prosecution has failed to bring home charge against appellant, resultantly, we are inclined to accept the appeal, set aside the impugned judgment dated 26.09.2007, passed by Additional Sessions Judge-II, Sibi, and acquit the appellant of the charge. He be set at liberty forthwith if not required in any other case.