' MIAN FAISH-UL-MULK, J.---This appeal is directed against the, judgment dated 9-12-2010, passed by Additional Sessions Judge-II Nowshera, whereby Aimal Khan appellant was convicted under section 302(a), P.P.C. And sentenced to death with a fine of Rs,100,000 or in default to suffer S.I. For six months. The amount of fine, if recovered was directed to be paid to the legal heirs of the deceased under section 544-A, Cr.P.C.
2. The prosecution case, as per contents of the F.I.R., in brief, is that on 30-3-2009 at 1940 hours the deceased/complainant Shah Faisal, in injured condition, in the DHQ Hospital Nowshera Kalan reported that on the eventful day at 18-45 hours when he was present near the shop of Gohar in Mohallah Khankhel of his village Shaidu, the accused appellant, duly armed with lethal weapon, came out of his house and told him to recite "Kalma" and started firing at him, as a result of which he sustained injuries. The complainant/deceased after lodging the report succumbed to the injuries in the Hospital. The occurrence was allegedly witnessed by Gohar Shopkeeper and other, people present on the spot. Motive for the offence allegedly was that about 2/3 days prior to the occurrence, the deceased/complainant reprimanded the convict-appellant not to roam around armed without any cause.
3. The prosecution in order to establish its case against the appellant examined as many as nine witnesses.
4. After commencement of trial, the prosecution in order to prove its case examined Javed Khan S.I.
P.W.1, who stated that ae is marginal witness to the recovery memo Exh.P.W.1/1, vide which the I.O.
Took into possession blood stained garments of the deceased Shah Faisal.
5. Fawad Khan S.-I. P.W.2 stated that he had received the Murasila Exh.P.A. For registration of case and incorporated its contents into F.I.R.
6. Noor-ul-Islam HC P.W.3 stated that he received the information about the death of Shah Faisal, then injured and recorded the report Exh.P.W.3/1 in this respect.
7. Dr.Said Badshah, Medical Officer (P.W.4) DHQ Hospital Nowshera conducted autopsy on the dead body and found the following:-
(1) (1) "Firearm entry wound about 1/4" X 1/4" on right lumber region.
(2) Firearm exit wound 1/2" X 1/2"on front of abdomen above the umbilical region.
(3) Firearm entry wound about 1/4" X 1/4" on the left buttock external side.
(4) Firearm exit wound 1/2" X 1/2" on lower abdomen just below the umbilical region".
' Death in his opinion was caused due to the injuries to vital organs.
8. Javed Khan S.I. (P.W.5) stated that on 9-4-2009 he arrested the accused-appellant and-issued card of arrest Exh. P.W.5/1.
9. Nawar Khan S.-I. (P.W.6) stated that on 30-3-2009 at 19-40 hours he recorded the report of Shah Faisal deceased, then injured, who was in conscious condition. Murasila was handed over to Gul Shad constable and was sent to police station for registration of case. He also prepared the injury sheet of the victim and referred him to doctor.
10. Naveed Khan (P.W.7) is the brother of the deceased, who stated that on the day of occurrence he was present on the spot when in the meanwhile the accused came armed with weapon and alarmed the deceased to say "Kalma" and started firing at him with which the deceased was hit and got injured. He stated that the victim recorded the report and succumbed to his injuries after reporting the matter to the police in the Hospital. He stated that the occurrence had been witnessed by Gohar and Fazal Gul. Motive for the offence was statedly that deceased Shah Faisal had reprimanded the accused not to carry the weapon with him, which resulted into the instant occurrence. He is also a marginal witness to the recovery memo. Exh. P.W 7/1, vide which the I.O.
Recovered and took into possession the blood stained grass/earth, which was sealed into parcel No,1.
11. Fazal Gul (P.W.8) stated that on 30-3-2009 at 18-45 hours he was present-on the spot when in the meanwhile the appellant came there duly armed with weapon and alarmed the deceased Shah Faisal to say "Kalma" and started firing at him with which he sustained injuries. He along with others took the victim Shah Faisal to the Hospital, where he succumbed to his injuries after reporting the matter to the police in DHQ Hospital, Nowshera. The occurrence had been Witnessed by Gohar also. He is also a marginal witness to the recovery memo. Exh.P.W. 7/1, vide which the I.O.
Recovered and took into possession blood stained grass/earth which was sealed into parcel No,l.
12. Amin Nisar S.-I. (P.W.9) investigated the case. He visited the spot and prepared the site plan in presence of eye-witnesses. During the spot inspection, he recovered and took into possession blood stained earth/grass vide recovery memo Exh.P.W.7/1, the blood stained earth/grass is P-1.
Vide memo Exh.P.W.1/1 he took into possession blood stained garments of the deceased consisting of shirt P-2, shalwar P-3, white vest P-4 in presence of marginal witnesses. He produced the accused before the court for obtaining physical remand vide application Exh.P.W.9/1.
13. On conclusion of prosecution evidence, statement of accused was recorded under section 342, Cr.P.C, wherein he denied the allegations levelled against him and professed his innocence. The accused-appellant neither wished to produce evidence in defence nor opted to record his statement under section 340(2), Cr.P.C.
14. Learned counsel for the convict-appellant contended that this is a case of no evidence. The star prosecution witnesses in this case are P.W.7 and P.W.B. Gohar shopkeeper was cited in the F.I.R. To have witnessed the occurrence, but was not examined by the prosecution, which belied the prosecution story. He further contended that Naveed Khan P.W.7 being brother of the deceased was interested witness, therefore, his evidence does not inspire confidence. Had he been present on the spot, his name should have been mentioned in the F.I.R. As eyewitness of the occurrence. He also contended that Fazal Gul P.W.8 is the friend of Naveed Khan P.W.7 and he being interested witness, deposed for ulterior motive. He further contended that this is a case of no evidence, because if the statements of both the alleged eye-witnesses are discarded, there remains no evidence in the present case and it can safely be held that it was an unseen incident. He lastly argued that this being a case of no evidence, the convict- appellant deserves acquittal.
15. On the other hand, the learned State counsel defended the impugned judgment contending that the prosecution has successfully proved its case by unimpeachable evidence of the two eye- witnesses, duly supported by medical evidence, recovery of blood stained earth/grass and garments of the deceased, motive for the occurrence between the deceased and convict- appellant coupled with abscondence of the convict-appellant for about two months.
16. We have considered the arguments of learned counsel for the parties and minutely, gone through the record and evidence of the case.
17. Learned counsel for the appellant contended that nine P.Ws. Were examined by the prosecution in support of its case. Out of them, six witnesses are police officials, who had fulfilled the requisite legal formalities. Statement of Medical Officer P.W.4 coupled with the post mortem report and inquest report are of vital importance. In the injury sheet Exh.P.W.4/1 time shown is 7-30 p.m. Time of injuries shown in the inquest report is 7-40 p.m. And time of death is 20-00 hours. It was suggested to P.W.4 in cross examination that in the post mortem report time has been tampered with from 7- 40 p.m. To 9-40 p.m., who admitted it correct, but termed it as a clerical mistake. If the time of injury and death shown in the aforementioned evidence is taken into consideration, it suggests that the occurrence has not taken place in the manner, as disclosed in the F.I.R. The relevant portion of his cross-examination in this respect is as under:-- "It is incorrect to suggest that the time of examination that is 9-40 p.m. Is over written by me instead of 7-40 p.m. The witness volunteered that it was a clerical mistake, which I corrected under my signature. It is incorrect to suggest that in fact the deceased was already died at 7-40, but I have joined hands with the complainant party to concoct and fabricate the instant case so I showed the time 9-40 p.m. Instead of 7-40 p.m.
18. The star witnesses of the prosecution are Naveed Khan (P.W.7) and Fazal Gul (P.W.8). Naveed Khan P.W. Is the brother of deceased; who is an interested witness. His name did not find mention in the F.I.R., which clearly suggests that he was not present on the spot at the time of occurrence.
Fazal Gul P.W.B. Is the friend of Naveed Khan P.W.7, whose name is also not mentioned in the F.I.R.
Gohar shopkeeper, who was stated to be present on the spot at the time of occurrence; was abandoned by the prosecution being won over. Motive for the occurrence has not been proved. We have noted with concern, that the complainant/deceased has lodged the F.I.R. Himself, who had not mentioned the name of Fazal Gul and his brother Naveed Khan, P.W.7 and P.W.8. Such lapse, on the part of the prosecution, was fatal and has caused dent to the prosecution case. So far as, the abscondence of the convict-appellant is concerned, it is by now established that abscondence of the accused per se is neither indicative nor sufficient by itself to prove the guilt of the accused.
19. So far as, motive in the case is concerned, although it was stated by the complainant- deceased, but the prosecution has failed to prove the same:
20. Since the ocular account through the testimony of P.Ws. 7 and 8 is not confidence inspiring and if the same is read in juxtaposition of medical evidence, as referred to above, the situation creates serious doubts in the prosecution case, the benefit of which must go to the convict-appellant, because he is entitled to the benefit of said doubt, as of right and not as a grace or concession. It is not necessary that there should be more than one reason in the circumstances, if one reason creates reasonable doubts in a prudent mind, that alone would be sufficient for discarding the prosecution evidence. Wisdom in this regard is sought from a case reported as "Tariq Pervez v. The State" (1995 SCM R 1345). Similar view was taken in "Riaz Masih alias Mitto v. The State" (1995 SCM R 1730) and "Saeedullah v. Shah Nazar and others" (2001 PCr.LJ 1740).
21. Keeping in view the resume of the evidence discussed above, we have come to the conclusion that it is a case of no evidence and the occurrence has not taken place in the manner as disclosed in the F.I.R. The learned trial court has failed to properly appreciate the scanty evidence available on record, because conviction cannot be based on such a weak type of evidence.
22. Resultantly, the appeal in hand is accepted, the conviction and sentence of the appellant is set aside and he is acquitted of the charge levelled against him. He shall be set free forthwith, if net required in any other case. The murder reference is answered in negative. Above are the reasons for our earlier short order of even date.