' MAZHAR ALAM KHAN MIANKHEL, J.---This judgment will dispose of Criminal Appeal No.361 of 2010, filed by Abdul Latif son of Abdur Raheem, against the judgment dated 30-3-2010 of Additional Sessions Judge/Zilla Qazi-IV, Swat, in case F.I.R. No.68 dated 20-4-2008, Police Station Khawazakhela, registered under sections 302/324/148/149, P. P. C . , whereby he was convicted under section 302(b), P.P.C. And sentenced to life imprisonment (on three counts); further convicted under section 148, P.P.C. And sentenced to undergo one year. The convict-appellant was further directed to pay compensation of Rs.80,000 to legal heirs of the three deceased in terms of section 544-A, Cr.P.C. Or in default of payment,to suffer further 6 months S.I or each count; he was further convicted under section 324, P.P.C. And sentenced to 7 years' R.I. r on two counts, and to pay fine to the tune of Rs.10,000 or in default thereof, to further suffer one month S.I., on each count. The convict/appellant was also burdened to pay Rs.20,000 to complainant and P.W. Shehzada in terms of section 544-A, Cr.P..C. Or in default thereof to further suffer two months simple imprisonment. All the sentences were ordered to run concurrently, benefit of suction 382-B, Cr.P.C. Was also extended.
2. Brief facts as given in the F.I.R. Are that Yousuf Ali, D.S.P., P.W.5., on receiving information of the occurrence, reached Civil Hospital, Khawaza Khela and he saw the three dead bodies lying in the Operation Theatre, of the Hospital. Complainant Shereen, P.W.2., father of deceased (Jan Muhammad and Ahmed) reported the matter to the effect that on the day of occurrence he along with his sons viz Jan Muhammad, Ahmad (both deceased) and Shahzada, P.W.3., had gone to Bazaar Khawaza Khela for purchase of furniture for the purpose of marriage of his son Shahzada.
After the necessary purchases, they hired the Datsun Pickup of driver Gul Zada (deceased) in Bazaar Khawaza Khela and started for their home.
' When they reached near the house of one Zareen situated near Kachigram, Abdul Latif along with his sons, namely Abdullah; Aleem, Bhutoo, Abdul Wadood and Fazal Muhammad, residents of Bori Kota, duly armed with deadly weapons, were present there. When the Datsun Pickup reached near the accused, they all started firing upon the complainant party which resulted into the deaths of Jan Muhammad, Ahmad, sons of complainant Shereen and Gul Zada, driver of the Datsun Pickup.
All the three victims died at the spot, while complainant and his ,son Shahzada escaped unhurt.
The accused, after the occurrence, decamped from the crime scene. Motive for the occurrence was stated to be a dispute over womenfolk.
3.. After completion of investigation, complete challan against appellant was submitted to the Court of Additional Sessions Judge/Izafi Zilla Qazi-IV, Swat for trial.
4. The prosecution to prove its case produced eight witnesses.
' P. W.
1. Was Asil Zada, the recovery witness of Exh.P.W.1/1, whereby blood-stained shirts of all the three deceased were recovered. P.W.2 was Shereen complainant, who narrated the same story as given in the F.I.R. P.W.3 was Shahzada, who stated that deceased Jan Muhammad and Ahmad were his brothers whereas the third deceased Gul Zada was not related to him. He repeated the same story as narrated by the complainant. P.W.4 was Muhammad Nazir DFC No.1197, who executed the process under section 204 and proclamation under section 87, Cr.P.C. P. W.5. Was Yousuf Ali Khan D.S.P. Khawaza Khela, who, on receipt of information of the occurrence, reached the Khawaza Khela Hospital and recorded the report of complainant in the shape of Murasila and prepared the injuries sheets and inquest reports of the deceased. He also submitted challan under section 512, Cr.P.C.
Against the absconding accused. P.W.6 was Dr. Fazal Karam, who conducted autopsy of the dead bodies of all the three 'deceased. P.W.7 was Said Rehman Inspector J.I.T., who investigated the case.
He took into possession bloodstained clothes of. The deceased, prepared site plan, secured blood- stained earth, took into possession four empties, recorded statements of P.Ws. And thereafter handed over the case file to the S.H.O. P.W.8 was Muhammad Sharif Khan S.I, who arrested the accused and prepared supplementary challan. Accused also recorded his statement under section 340(2), Cr.P.C. And also defence evidence. He, while appearing as a witness, denied all the allegations and pleaded innocence. DW-1 was Behramand and DW-2 was Mehmood, who stated that complainant and P.W. Shahzada are not the eye-witnesses and they had seen them in the village who had participated in the Kharia'1' of Shahi Malik.
5. The learned trial Court, after hearing learned counsel for the parties, vide impugned order dated 30-3-2010, convicted the accused as mentioned above. Hence, the present appeal.
6. Learned counsel for the appellant contended that the belated report of complainant creates doubt in a prudent mind which cannot be relied upon, as ,po explanation for the same has been given by the complainant. He further submitted that involvement of the entire family in the case makes the very case of prosecution doubtful, as appellant is aged about 75/76 years. Learned counsel while referring to the statement of the doctor, P.W.6, submitted that the relatives of the deceased were not present at the time of examination of the dead bodies, so it is an unseen occurrence and this aspect also gets support from the defence evidence. Learned counsel further contended that nothing incriminating was recovered from the appellant at the time of his arrest; that motive as alleged by the prosecution was not proved.
' As against that, the learned A.A.G. Assisted by the learned counsel for complainant, submitted that it was a daylight occurrence and the accused were directly charged in the F.I.R; the appellant remained absconder for about three months; that the place of occurrence and the presence of the eye-witnesses has not been disputed. They further argued that the case against the appellant is proved beyond any shadow of doubt through an unshattered ocular account, medical evidence and other corroborative evidence. So, the conviction so recorded calls for no interference and the appeal is liable to dismissal.
7. Learned counsel for parties and learned A.A.G. For State heard. Record of the case gone through.
8. Record of the case would reveal that the case of prosecution is based on ocular account besides medical and corroborative evidence given by the complainant Shereen P.W.2, who is the father of the two deceased, namely Jan Muhammad and Ahmad. The story put forth by him apparently appears to be a true natural story and his presence along with other eye-witness Shehzada P.W.3 at the spot can be accepted as a natural stance. But before accepting the same as a true story and putting reliance for conviction of ,an accused, law requires that the same be scrutinized with care and caution by keeping in view the principles of appreciation of evidence. The evidence must be true, 'confidence-inspiring and analyzing the in accordance with the facts and circumstances of the same.
' While going to analyze the same, we are full conscious of the fact that three human lives were lost in the occurrence but at the same end, we are again conscious of the fact whether the evidence.
Brought on the record is sufficient enough to connect the appellant with the commission of offence.
' The examination-in-chief of P.W.2 though is in line with the F.I.R., but entire cross-examination suggests that he was not present at the time of occurrence. The very seating in the Pickup, as explained by him, is against our social norms and moral values when he says that he was seated on the right side in rear body of the Pickup while his deceased son Jan Muhammad was sitting in the front seat of the pickup along with driver. None on their behalf had gone to inform the police and the police of their own reached the spot. He was unable to say that after"how much time the police reached there at the spot and recorded his statement and statement of his son Shehzada at the spot, but that statement was not available on the record. Whereas, the initial report in the shape of Murasila, Exh.PA/1, was recorded by Yousuf Ali P.W.5 in the Hospital. It is in the evidence that all the three deceased succumbed to their injuries at the spot then why the report was not taken at the spot. Had there been someone in an injured condition, then possibility of rushing him to the hospital would have been there. The P.W.5 is very categorical in his statement that the deceased were lying in the Operation Theatre. The doctor P.W.6 has stated that the deceased brought by Said Rehman, S.I. For postmortem. Further stated that F.I.R was registered prior to arrival of the dead bodies in the hospital and the relatives of the deceased had come along with the police.
' Similarly, P.W.3 Shehzada, who is brother of the two deceased Jan Muhammad and Ahmad, is also an eye-witness of the occurrence. But his statement too is not of worth to be relied upon. He negates the version given in the Murasila. He says that after arrival of police, the dead bodies were shifted in the vehicles and were taken to the hospital. He does not say as to where the report was made. We are unable to understand that when police reached the spot and all the three deceased had succumbed to their injuries at the spot and no one was in an injured condition, then why the report was not taken at the spot. He further stated that the police remained at the spot for half an hour. The P.W.5 Yousuf Ali Khan says that he received the information through wireless and when he along with police party were on their way to the spot and were near the hospital, the dead bodies by the time had reached the hospital. So, he went to the hospital and recorded the report in the shape of Murasila, Exh.PA/1.
' The inference one can gather from the above consideration of evidence is that either the eye- witnesses were not present on the spot or it was a prompted report with deliberations and consultations. The above referred evidence having' material contradictions cannot be believed to convict appellant. The very presence of the eyewitnesses has become doubtful. Had they been present on the spot, should there and then have tried to shift the dead bodies to the hospital which was at a distance of two kilometers. From the spot just in the hope an attempt to save the lives of the victims and it is the natural reaction of a man of sound mind. P.W.1, Asil Zada, is the recovery witness- of blood-stained shirts of all the three deceased which were taken into possession vide memo Exh.P.W.1/1. Deceased Gul Zada was the son of his cousin. P.W.1 reached the spot after forty- five minutes of the occurrence and the dead body of Gul Zada deceased at that time had been Shifted in a Pickup whereas the dead bodies of the other two deceased were lying on the roadside.
He has also admitted that the police had also reached the spot in his presence and then the dead bodies were shifted to the hospital. The occurrence, as per report, took place at 12-30 p.m. And he reached forty-five minutes after the occurrence, meaning thereby that about 1-15 p.m. Thereafter the dead bodies were taken to the hospital and by then no report was made.
' No doubt, that three persons lost their lives and the medical report has confirmed their unnatural death rather their brutal murder and other circumstantial evidence in the shape of recoveries of blood-stained clothes and earth, empties from the spot, but all such type of evidence is not sufficient enough to connect the appellant with the commission of offence. When ocular evidence is disbelieved, then such circumstantial evidence cannot be believed for conviction of an accused.
' The prosecution has also alleged a motive for the commission of offence, but the same being obscure remained unproved. Had it been proved, even then only motive would not have been sufficient to record a conviction, as it has repeatedly been held that the motive being double- edged weapon cuts both ways.
' So, the above discussion has made our mind to disbelieve the prosecution evidence qua the appellant and his conviction, in the circumstances, cannot be upheld. So, we are constrained to allow this appeal, set aside the conviction and sentence of the appellant and order his acquittal.
He be released forthwith; if not required in any other case.