MIFTAH-UD-DIN KHAN, J.---Appellant Muhammad Ilyas along with acquitted accused Fayaz and Wiqas were tried by learned Additional Sessions Judge-IV, Abbottabad in case F.I.R. No, 469 dated 12-5-2007 of Police Station Havelian, Abbottabad registered under section 302/34, P.P.C. for committing qatl-e-amd of deceased Adalat Khan and the appellant Muhammad Ilyas was convicted under section 302(b), P.P.C. and sentenced to life imprisonment and a compensation of Rs, 50,000 under section 544-A, Cr.P.C. to be paid to the legal heirs of the deceased or in default to undergo S.I. for six months. The benefit of section 382-B, Cr.P.C. was extended to the appellant.
2. Aggrieved from the order of conviction dated 24-7-2009 passed by learned Additional Sessions Judge-IV, Abbottabad, the appellant has filed Criminal Appeal No, 90 of 2009 while complainant Gul Khan has lodged Criminal Revision No, 26 of 2009 for enhancement of sentence. As the appeal as well as criminal revision arises of the same judgment, therefore, both are disposed of through the present single judgment.
3. The brief facts of the case are that on 12-5-2007 at 1645 hours complainant Gul Khan along with dead body of his deceased son Adalat Khan made a report in RHC Havelian to the effect that he along with his son Adalat Khan deceased, nephew Faqir Khan and wife Mst. Amraiza Jan were threshing wheat through thrasher machine in front of their house in their land. That at about 3-30 p.m. appellant Muhammad Ilyas along with Fayaz Khan and Wiqas came and started abusing.
Acquitted accused Fayaz Khan and Wiqas caught hold of deceased Adalat Khan and Muhammad Ilyas gave stone blow on left side of -head of Adalat Khan. That complainant Gul Khan and his wife tried to rescue Adalat Khan on which all the three accused gave kicks and first blows to complainant Gul Khan and his wife Mst. Amraiza Jan. Adalat Khan was being shifted to the RHC but in the way he succumbed to his injuries and died. That the occurrence is witnessed by complainant Gul Khan, his wife Mst. Amraiza Jan, nephew Faqir Khan, Driver and helper of the thresher machine.
The motive for the occurrence is stated to. be dispute over the landed property. The report of complainant Gul Khan was recorded by Muhammad Farid Khan S.-I. P.W.13 in the shape of Murasila which was sent to the Police Station for registration of the case through constable Jehanzeb. The case was investigated by Mushtaq Khan S.-I. P.W.14 who prepared site plan Exh.PB with all its foot notes, prepared recovery memo. Exh.P.W.12/1 whereby he secured earth and a small stone stained with blood. He took into possession the clothes of deceased vide recovery memo. Exh.P.W.3/1 in the presence of marginal witnesses. On the pointation of appellant Muhammad Ilyas one stone was also recovered and taken into possession as weapon of offence vide recovery memo. Exh.P.W.7/1.
He recorded statements of P.Ws. and sent the recovered articles to the expert and the report of expert is Exh.P.W.14/9. After completion of investigation challan was submitted against the appellant and acquitted co-accused.
4. After framing charge to which appellant pleaded not guilty, recording of prosecution evidence, statements of accused and hearing learned counsel for the parties, the learned Additional Sessions Judge-IV, Abbottabad convicted the appellant Muhammad Ilyas and acquitted co- accused Fayaz Khan and Wiqas through the impugned judgment against which appellant has preferred appeal while complainant has filed revision for enhancement of sentence.
5. Mr. Qazi Muhammad Arshad, Advocate, learned counsel for appellant contended that the prosecution version is based on the testimony of complainant Gul Khan and Mst. Amraiza who are related to the deceased and other independent persons i.e,, driver and helper of the thresher machine were not produced,by prosecution on account of which adverse inference has to be drawn against the prosecution. He further submitted that during the aforesaid incident appellant Muhammad Ryas also received injuries regarding which a report at Mad No 8 was lodged on 12-5- 2007 and the injuries received by, appellant have been supported by medical officer but this injury has been suppressed by prosecution witnesses who are interested and inimical toward the appellant, therefore, learned trial Court was not justified to rely upon the testimony of witnesses related to the deceased Further contended that in fact free fight took place between the parties all of a sudden during the course of which deceased received a single blow, without any repetition hence intention to kill the deceased is not established against the appellant. He further submitted that from evidence available on record it is not established beyond doubt that the appellant intentionally committed Qatle-amd of the deceased; therefore, the offence against appellant as the most would be covered by section 302(c), P.P.C. He lastly argued that the prosecution has failed to establish a case against the appellant beyond reasonable doubt and under the law the benefit of a single doubt has to be extended to the accused/appellant. He placed reliance on 2001 PCr.LJ 954 and 2010 SCM R 1009.
6. Mr. Arif Ali Jadoon, Advocate assisted by learned State Counsel defended the judgment of learned trial Court and contended that the injuries on the person of appellant are artificial and superficial and unbelievable in the given circumstances. He further submitted that the P.Ws. relied upon by prosecution have given consistent statement without any major contradiction which is fully supported by medical evidence and incriminating recoveries from the spot, therefore, the learned trial Court after proper appraisal of evidence has rightly convicted the appellant in the present case. He further submitted that the offence of committing Qatl-e-amd of deceased was proved on the record, therefore, the learned trial Court should have awarded the normal penalty of death to the appellant; therefore; the revision of complainant Gul Khan be accepted and sentence awarded to the appellant be enhanced to death.
7. The contention of learned counsel for appellant has got no force because the name of P.Ws. find mention in a promptly lodged report excluding the possibility of consultations and deliberations before lodging the F.I.R. No doubt Gul Khan P.W.9 and Mst. Amraiza P.W.10 are closely related to the deceased but their presence on the spot to witness the occurrence is fully established and they have furnished straightforward and truthful account of the occurrence in their testimony before the learned trial Court. They have successfully faced the test of cross-examination of defence and no material contradictions, apparent defect or infirmity exists in their testimony. The evidence of an interested witness can only be discarded, if the same is not found in consonance with attending circumstances of the case. No evidence exists on record that P.Ws. have got any personal ill will, mala fide or ulterior motive to falsely depose against the appellant. The mere discrepancies of a trivial nature in the testimony of eye-witnesses cannot be considered to discard or doubt the credibility of such witnesses. The testimony of Gul Khan P.W.9 and Mst. Amraiza P.W.10 regarding injury to the deceased is further supported by medical evidence, which is an independent and impartial piece of evidence. Dr. Mazhar Ali Shah P.W.8 who conducted autopsy of the dead body of deceased Addalat Khan has found depressed fracture of left parental bone of the skull damaging the brain tissue as cause of death of deceased.
8. Taking up the contention of learned counsel for appellant regarding suppressing the injury on appellant by the P.Ws. the injury on the person of-appellant is not noteworthy as the same appears to be artificial. The medical officer has not given any definite opinion regarding the nature of injury on appellant. Thus the injury on the person of appellant was superficial and not noteworthy to be either investigated by I.O. or witnessed by the P.Ws. The appellant Muhammad Ilyas was specifically asked in question No, 14 of his statement recorded under section 342, Cr.P.C. as to what is his statement and why he has been charged, but he has not disclosed the injury on his person or has given any reference to such injury in his answer. In these circumstances suppression of injury on the person of appellant by the P.Ws. is completely ruled out, hence on this score the testimony of eye-witnesses cannot be discarded or disbelieved. Secondly no convincing evidence or circumstances exists that the occurrence is the outcome of free fight between the parties. No doubt, under the law an accused is a favorite child of law and benefit of even a' single doubt has to be extended to him but the doubt must be reasonably entertained by a person of common prudence on justified grounds. The benefit of doubt should not be stretched to the extent of self created, imaginary and hypothetical in favour of accused at the cost of widows, orphans who had fallen victim E to the acts of brutality, who too, also require equal treatment with the accused. Thus, a balance and equilibrium must be maintained between accused and complainant party in this connection by treating them equal before a court of law during dispensation of justice. Thus from the testimony of P.Ws. medical evidence, motive for the offence and incriminating recoveries, this fact is fully established beyond doubt that appellant is fully responsible for the fatal blow on vital part of the body F of deceased, which caused his death. Thus the learned trial Court has rightly convicted the appellant in the present case.
9. Taking up the revision of complainant for enhancement of sentence, it is evident from the facts available on the record that the occurrence had taken place all of a sudden without any pre- meditation or pre-arranged plan during the course of which the deceased received a single fatal blow through a stone without any repetition of further blow on the part of appellant. In these circumstances the learned trial Court has rightly awarded the lesser punishment which is sufficient to meet the ends of justice. Thus no reasonable and justified ground exists for enhancement of sentence awarded to the appellant by the learned trial Court.
10.As a corollary to the above discussion, we while maintaining the conviction of appellant are inclined to order the dismissal of the present appeal as well as connected revision petition.