JUDGMENT MIAN FASIH-UL-MULK, J.---Appellants Khan Afsar, Khanwaiz sons of Samundar and Zar Khan son of Khan Afsar were tried by learned Additional Sessions Judge-IV, Abbottabad on charge under section 302/34, P.P.C. And having found guilty each of them were convicted and sentenced to imprisonment for life and to pay Rs.50,000 as compensation under section 544-A, Cr.P.C. And in default thereof to suffer six months' R.I. Benefit of section 382-B, Cr.P.C. Was however, extended.. The appellants have filed Criminal Appeal No.82 of 2009 against their conviction and sentence whereas Mir Afzal complainant has filed Criminal Revision No.32 of 2009 the enhancement of sentence. Both the appeal and criminal revision are disposed of through this single judgment.
2. Facts of the prosecution case are that on 26-4-2007 at 2200 hours the complainant Mir Afzal reported the matter to the local police that he along with his were Mst. Saleema Jan was present in his house. Muhammad Miskeen, brother-in-law of complainant, returned from work and told that he heard the report of firing at Dhaka Raft and went towards Dhaka Rakh. Complainant and his were went behind Muhammad Miskeen towards Dhama At Dhaka Rakh they saw Khan Afsar, Khanwaiz sons of Samundar, Zar Khan son of .Khan Afsar and Chanraiz alias Cheza son of Sarwar residents of Seri Karhaki making tiring with firearms. All the above named accused while making firing went downwards. Complainant went to the spot and saw that Muhammad Miskeen and "Gulwaiz were lying dead on the spot. Occurrence is stated to be witnessed by complainant and his were Mst. Saleema Jan. Complainant stated that he and his brother-in-law deceased Muhammad Miskeen had no enmity with the accused, however, accused and deceased Gulwaiz had previous blood feud enmity with the accused.
3. After completion of investigation complete challan was put in court. At trial formal charge was framed against the appellants, who professed innocence, false implication and claimed trial. The prosecution in support of its case examined seventeen witnesses.
4. On close of prosecution evidence, appellants were examined under section 342, Cr.P.C. They did not appear as their on witnesses on Oath as required under section 340(2), Cr.P.C. Nor produced any evidence in defence.
5. On the assessm ent of evidence, the appellants were found guilty and were convicted and sentenced as mentioned above.
6. Learned counsel for the appellants mainly contended that F.I.R: was lodged after preliminary investigation and the appellants were falsely charged therein. It is further urged that evidence produced before the learned trial Court did not justify , conviction as the same is full of contradictions and discrepancies, which cast heavy doubt on the prosecution case. The charge against appellants based on prosecution evidence cannot be held proved as per requirement of law. It was further contended that due to strained blood feud enmity, the possibility of false implication of accused cannot be ruled out. The statements of eye-witnesses P.W.11 and P.W.12. Are not only self contradictory on material, points but also contrary to medical evidence. Learned counsel for appellants further argued that no weapon of offence was recovered from the accused despite the fact that they remained in police custody for sufficient long time. Learned counsel concluded that prosecution has failed to prove its case beyond reasonable doubt and instead of extending benefit of doubt, the learned court has stretched the case in favour of prosecution, thus prayed for acquittal of appellant.
7. On the contrary, learned counsel for complainant argued that the trial court has considered the entire evidence in its true perspective where no material discrepancies or contradictions were noticed. The eye-witnesses P.W.11 and P.W.12. Fully furnished the ocular account and supported the prosecution version in all respects. Learned counsel contended that prosecution- has successfully established its case against accused beyond any shadow of doubt. It was also argued that complainant or the eye-witness have no enmity to provide for false accusation. Recovery of empties from spot attributing to each of accused and bullets recovered from body of deceased Gulwaiz were opined to be that of .222 bore which strengthen the prosecution case. Learned counsel for complainant concluded that the prosecution has succeeded in proving its case beyond reasonable doubt against the appellants. Finally, it was submitted that the trial court has rightly convicted the appellants and the impugned judgment does not suffer from any illegality or infirmity except to the extent of awarding lesser punishment as no mitigating circumstances existed. It was thus prayed that on acceptance of criminal revision the sentence be enhanced to that of normal penalty of death sentence.
8. Learned State Counsel supported the impugned conviction, rather adopted almost the arguments advanced by learned counsel for the complainant.
9. We have heard learned counsel for parties and have gone through the -record with their able assistance.
10. A perusal of record would show that deceased Gulwaiz committed the murder of were of Khan Afsar, were of Khanwaiz, daughter of Khan Afsar and were of Chanvez and was directly charged for causing murder of these four persons registered vide F.I.R. No.. 39 under sections 302/34, P.P.C. He was an absconder in that case and was also required by local police in a number of criminal cases registered against him. He was on inimical terms with so many other persons besides the accused whereas deceased Muhammad Miskeen was living in an isolated house and was allegedly indulged in harbouring the proclaimed offenders.
11. In the instant case according to F.I.R. The occurrence took place on 26-4-2007 at 1945 hours and report was lodged at 2200 hours. Source of light was shown as moonlight in the site plan prepared on the next day at the instance of complainant. Complainant was examined as P.W.11., who stated that the occurrence took place at 6-30/6-45 p.m. Deceased Miskeen, who was present in their house, on hearing sound of fire shots went towards the direction of fire shots. The complainant also followed deceased Miskeen towards the spot of firing and saw the accused Khan Afsar and Zar Khan were making firing on deceased Gulwaiz. When Miskeen reached the spot, accused Khanwaiz and Chanwaiz made firing on Miskeen. In cross-examination the witness admitted that there is no house situated in the vicinity of the house of Miskeen deceased. It was further admitted that were of deceased Miskeen namely Makhtoona Jan was present at the time of occurrence and had witnessed the occurrence. The place of occurrence is at a distance of 100/120 paces from the house of deceased. The occurrence took place before the Maghrib prayers. The police party arrived at the spot about 7-30 to 7-45 p.m. He had stated in his report that it was about 06.30/06.45 p.m.
And there was sufficient light. The witness further stated that he did not specify the bore and caliber of weapon being carried and used by the accused. The specification of weapon might have been mentioned by the police. The other eyewitness Mst. Saleema Jan were of Mir Afzal complainant was examined as P.W.12. She stated that Mst. Makhtoona Jan had left the house of deceased about one year prior to the occurrence and she did not return thereafter. The place where the occurrence took place may be at a distance of 40/45 paces from their house. The occurrence took place between 6-00 and 7-00 .m. In the evening and there was sufficient light at that time. The police arrived at the spot after about one hour of the occurrence. She does not remember the names of the persons, who had attracted to the spot after the occurrence. Mst.
Makhtoona Jan were Of deceased Miskeen came to the spot along with said persons after the occurrence. It is incorrectly mentioned that she identified the different accused in moon light. This portion of her statement regarding identification of accused in moonlight night have been written by the police. She cannot say at whose instance the various bores and calibers of weapons i.e. Description of weapons is mentioned in the site plan. She did not specify the description at the time of preparation of site plan.
12. We have thoroughly scrutinized the evidence of Mit Afzal (P.W.11.) and Mst. Saleema Jan (P.W.12) the alleged eyewitnesses of the occurrence Their testimony before court is inconsistent, full of improvements and infirmities on material feature of case i.e. Timing of occurrence, venue of occurrence, presence or otherwise of Mst. Makhtoona Jan were of deceased Miskeen at the time of occurrence and ocular account. They are not unanimous in their statements. Strong reasons exist to disbelieve and discard their testimony being not reliable. The ocular account is also found not compatible with medical evidence.
The moot question in this case would be as to how and in what manner the occurrence took place.
It is in the prosecution evidence that on hearing the .Voice of lring from Dhaka Rakh Muhammad Miskeen left the house and went to the spot. His were Mst. Makhtoona Jan who was very much present in the house, as per statement of complainant did not follow her husband and strange enough that Mir Afzal P.W.11. And Mst.Saleema Jan (P.W.12) on their on followed him and on reaching the spot found dead bodies of Gulwaiz and Muhammad Miskeen. The complainant has further deposed that Mst. Makhtoona Jan was present at the time of occurrence and saw the occurrence.
Be that as it may, she was deliberately not produced as witness and, as such, best available evidence with prosecution was withheld, which could be unfavourable to the prosecution case.
14. In view of the above, it appears that the prosecution has suppressed material facts and the occurrence is shrouded in mystery, as under what circumstances, in what manner, at what time and by whom the deceased were done to death. Thus, it can be safely concluded that either it is a case of no evidence or the occurrence did not take place in the manner as shown. The prosecution has failed to prove its case against the appellants beyond any shadow of doubt and by extending benefit of doubt, they are acquitted of the charge. In this view of the matter Criminal Revision No.32 of 2009, being bereft of any merit deserves dismissal.
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15. Consequently, Criminal Appeal No.82 of 2009 is allowed. Conviction and sentence recorded by the trial Court is set-aside and appellants are acquitted of the charge. They shall be set free forthwith if not required in any other case. Criminal Revision No. 32 of 2009 stands dismissed.