JUDGMENT .MAZHAR ALAM KHAN MIANKHEL, J.---Through this single judgment, we propose to dispose of instant Criminal Appeal No.580 of 2009 as well as the connected Criminal Revision No.12 of 2010 filed by the complainant for enhancement of sentence awarded to the appellants.
2. The appellants along with four other co-accused were charged for committing the murder of deceased Musharaf Khan and ineffectively firing at the complainant of the case.
3. As per version given in the F.I.R., there were two sets of accused out of whom, Shafiqullah, Hayatullah and Khalid were charged for ineffective firing on the person of complainant whereas the present appellants were charged for effective firing on the command and direction of one GuI Hasham on the person of deceased Musharaf Khan, who got injured and succumbed to his injuries at the spot. Motive for the offence is stated to be the previous altercation. The occurrence, was witnessed by the complainant, the brother of the deceased.
4. The other set of accused Shafiqullah, Hayatullah and Khalid only charged for ineffective firing on the person of complainant and one Gul Hasham, who was given the role of command to the other accused i.e. The appellants for firing on the person of deceased, were acquitted of the charge by the learned Sessions Judge, Karak on 20-5-2009. The appellants, who were arrested on 6-6-2009, after their refusal of bail before arrest application, complete challan/final report against them was submitted in the Court of Sessions Judge, Karak, who after the trial, convicted them under section 302, P.P.C. And sentenced them to life imprisonment with a fine of Rs. 50,000 each to be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. Or in default of payment of fine, they will have to undergo five years R.I. Each. Also convicted them under section 324, P.P.C.
And sentenced to undergo seven years R.I. With a fine of Rs. 20,000 each or in default of payment of fine, they shall further undergo one year S.I. All the sentences were ordered to run concurrently.
Benefit of section 382-B, Cr.P.C. Was also extended to the appellants.
5. Learned counsel for the appellants submitted that the occurrence as narrated by the complainant and put forth by the prosecution clearly suggests that the same is an unseen occurrence as the ocular account given by the complainant, who being real brother of the deceased is an interested witness, is full of doubts which cannot be relied upon. The story given by the complainant without any supportive evidence reflecting their version would not be sufficient to be relied upon. No recovery of empties was made from the spot and only blood was recovered from the spot. Though the motive for the occurrence has been alleged by the prosecution but the prosecution badly failed to prove the same. The motive so alleged by the complainant in his statement before the Court was also not between the accused party and the deceased and, if any, that was between the complainant and the accused-party. The medical evidence brought on record is also not in .Confirmity with the story of prosecution. The learned counsel for the appellants further submitted that no doubt there is abscondence of the appellants but in absence of any material evidence connecting the appellants with the commission of offence would not be sufficient to base conviction when the ocular account of the case itself becomes doubtful.
6. As against that, the learned State counsel assisted by the learned counsel for the complainant while refuting the submissions made at the Bar by the learned counsel for the appellants submitted that the appellants were directly charged in the promptly lodged F.I.R. No doubt the occurrence is shown to have been witnessed by the complainant, who happens to be the brother of the deceased, but his version has not been shattered by the appellants and the same is also corroborated by the other evidence on the record. His presence with the deceased at the relevant time is well established on the record. So, in the circumstances of the case, his testimony cannot be overlooked only because he is an interested witness. The learned counsel for the complainant further submitted that there were no contradictions in the solitary statement of the complainant being the sole eye-witness of the case and it is the quality and not the quantity of evidence fixing liability and responsibility on the accused. In support of his revision for enhancement, he further submitted that when an offence of "Qatl-e-Amd" is proved beyond any shadow of doubt then the accused deserves the capital punishment provided for the offence and the learned trial Court while handing down the judgment has misappreciated the evidence on the record and requested for acceptance of his revision by enhancing of the sentence from life imprisonment to that of death.
7. We have heard the learned counsel for the parties and have perused the record of the case. The same would transpire that the deceased being a retired employee, in the company of complainant, had gone to collect his pension from the post office situated in village Warana Mitha Khel and while on their way back to their village near tube well of one Ali Marjan, the appellants along with their other acquitted co-accused were sitting duly armed with Kalashnikoves. The moment, the deceased and the complainant reached near them, the appellants at the command of one Gul Hasham opened fire with their respective weapons, as a result of which the deceased was hit and died on the spot. The remaining three accused fired at the complainant but who luckily escaped unhurt. After the occurrence, when the accused decamped from the spot, the complainant rushed to his brother and by that time no one else from the surrounding villages was there to witness the occurrence, however, many inhabitants of the area reached the place of occurrence-after 10 to 15 minutes. The dead body of the deceased with the help of people of the locality was taken to the Police Station where the report of the occurrence was lodged by the complainant and then inquest report of the deceased was prepared and the dead body was sent for post mortem examination.
7. After the post mortem examination, Muhammad Subhan Inspector (P.W.9) went to the spot and prepared site plan Ex.PB at the pointation of complainant wherefrom only blood stained sand was recovered and as per version of the I.O. In spite of hectic efforts, he was unable to find any empty from the spot.
8. It is the occurrence which has reportedly been witnessed by the brother of the deceased, who is also complainant of the occurrence and recorded his statement as P.W.7. The said sole witness on the face of it happens to be an interested witness and under the law testimony of such witness requires thorough scrutiny. As per version of the complainant that he usually not accompanied the deceased for getting his pension. If believed this portion of the evidence then status of the said witness becomes that of the chance witness. In that case too, his statement requires critical examination. The version given by the complainant that he was accompanying the deceased for collecting his pension cannot be believed on the face of it as there is no convincing evidence on record to this effect. Similarly, the I.O. While preparing the inquest report was also unable to recover any pension book in the name of deceased or any other documents reflecting the above said fact as the relevant column of inquest report in this respect is silent. We as such entertain serious doubt about the presence of complainant with the deceased at the time of occurrence, complainant in his cross-examination stated that when they reached the place wherefrom pension was to be collected, the clerk concerned was not present and after waiting for five minutes, they returned back. This part of his statement makes his presence highly doubtful. It does not appeal to prudence that when complainant along with deceased had gone for pension then they remained there only for five minutes and returned back without waiting for the arrival of the concerned clerk.
The site plan of the occurrence was prepared at the instance of the complainant. The overall glance of the site plan would reflect that the point attributed to the complainant and the other three acquitted accused charged for the ineffective firing on the person of complainant would make another dent in the story of prosecution that in between the two, the present appellants have been shown to be present in the firing range of said three accused. If seen the version given by the complainant as a sole eyewitness to the occurrence, all the above narrated facts would suggest that his testimony in absence of any supportive evidence could not be believed.
9. Next comes the question of abscondence of the accused which spreads over the years but the same alone could not be made as a ground for conviction of the appellants in absence of any material and trustworthy and confidence inspiring evidence to connect the appellants for the commission of offence for which they were charged. The only evidence against the appellants as discussed above is that of the ocular account of the complainant which itself has not been relied upon for maintaining the conviction of the appellants. So, in absence of any evidence the only abscondence cannot be made basis for the conviction of the accused.
10. For what has been discussed above, we without any hesitation are of the considered opinion that it was an unseen occurrence and the ocular testimony given by the complainant, being an interested witness, cannot be relied upon so, by allowing this Appeal, the conviction and sentences awarded to the appellants vide impugned judgment dated 19-11-2009 passed by the Sessions Judge, Karak, is set aside and the appellants are acquitted from the charges levelled against them.
They be released from custody forthwith if not required in any other case.
Revision Petition for enhancement of sentence filed by the complainant is dismissed as such.