JUDGMENTSHER MUHAMMAD KHAN J.---By this single judgment we propose to decide Criminal Appeal No.77 of 2009 filed by appellant Badshah Rahman alias Badshah son of Habibullah residence of Taji Kala District Bannu against his conviction passed by learned Additional Sessions Judge-V, Bannu dated 13-7-2009 vide which appellant has been convicted and sentenced under section 302 (b), P.P.C. For rigorous imprisonment for life and also held liable to pay Rs.2,00,000 as compensation under section 544-A, Cr.P.C, to the legal heirs of the deceased, which shall be recovered as arrears of land revenue. In default of recovery of the compensation amount the appellant was further ordered to undergo six months simple imprisonment. However, benefit of section 382-b, Cr.P.C. Was extended.
2. Complainant Zar Wali Khan, father of the deceased Rageeb Nawaz and the State through Advocate General have filed Criminal Revisions Nos.10 and 18 of 2009 for enhancing the sentence of accused/appellant from life imprisonment to normal penalty of death and also for increasing the compensation amount. The above appeal and revisions are arising out of the same judgment/order, therefore are taken jointly for decision through this single judgment.
3. The story narrated in the F.I.R. Is that on 27-10-2004 at 13-40 hours, the complainant Zar Wali Khan carrying his injured son Raqeeb Nawaz, who was incapable of speaking, to emergency DHQ Hospital, Bannu and reported the incident to Ayub Khan ASI in a way that his son Raqeeb Nawaz was suffering from fever and he was taking him for medical treatment at noon time. At about 13-15 hours when they were going on the path leading to Tajak Kala, they saw appellant Badshah Khan son of Habibullah and Nazar Ali son of Hakeem, his co-villagers, duly armed with Kalashnikovs.
Nazar Ali commanded accused Badshah Khan for firing at them. The appellant started firing at them due to which his son Raqeeb Nawaz received injury; however, fortunately he escaped unhurt.
Motive for commission of the offence was stated to be land dispute with the accused.
4. The report of complainant was incorporated into F.I.R. No.276 dated 27-10-2004 registered under section 324/34, P.P.C. In Police Station, Ghuriwala and investigation in the case was initiated. On 3rd day of the occurrence the injured succumbed to his injury in Post Graduate Government Lady Reading Hospital, Peshawar, therefore, section of law was changed from section 324, P.P.C. To section 302, P. P. C .
5. Challan against the appellant Badshah Rahman was filed under section 512, Cr.P.C. Because he did not surrender before the police and went into hiding, however, complete challan against co- accused Nazar Ali was submitted in the trial Court, after taking cognizance, trial Commenced and co-accused Nazar Ali was ultimately acquitted vide judgment/order dated 31-7-2007. Appellant Badshah Rahman was declared proclaimed offender and perpetual warrant of arrest was issued against him by the trial Court in the same judgment/order. Complainant did not impugn the acquittal order of accused Nazar Ali before this Court, hence got finality.
6. Appellant Badshah Rahman was arrested on 13-8-2008, who faced the ordeal of investigation and finally was sent to judicial lock up on 15-8-2008. Supplementary challan was filed against the appellant and the learned trial Court took cognizance on 23-9-2008. Appellant refused to plead guilty in response to the charge framed upon him; therefore prosecution was directed to record its evidence for proving the guilt of accused/appellant.
7. The prosecution examined 17 witnesses during trial against the accused. Statement of accused was recorded under section 342, Cr.P.C. After prosecution closed its evidence. Accused/appellant in his statement denied to have committed any offence, however, did not produce evidence in his defence and also declined to be examined on Oath under section 340(2), Cr.P.C.
8. The learned trial Court after hearing arguments of both the sides convicted the appellant and sentenced him as per detail given above.
9. Learned counsel for the appellant argued that the presence of complainant at the time of occurrence is highly doubtful, keeping in view the contradictions apparent in the evidence of prosecution. The site plan, medical report does not coincide with each other and complainant has also made improvements in his statement. There is another case registered against the deceased by sister of the acquitted co-accused Nazar Ali, the genuineness of which was admitted by P.W.14 Muhammad Naeem ASI, the Investigating Officer. It was also argued that the deceased received single bullet entry wound on his right side of head and the bullet was recovered by doctor and taken into possession but did not send to FSL for obtaining its expert report regarding the kind of weapon of offence from which it was fired. He next argued that statement of closely related solitary witness cannot be relied upon if it is not corroborated by other independent evidence.
10. Learned counsel for the State assisted by learned counsel for complainant rebutted the arguments advanced by the learned counsel of the appellant and argued that it is daylight occurrence, the report has been lodged within shortest possible time, medical evidence supports the allegation of F.I.R. It was also argued that recovery of blood-stained earth from the spot and bullet from the body of the deceased fully corroborate the veracity of complainant. It was argued that minor contradictions which do not affect the roots of prosecution case should be ignored and cannot be given significant importance. It was also argued that appellant remained absconder for sufficient long time without any explanation. In support of revision petition it was argued that no mitigating circumstances exist for awarding lesser penalty.
11. We have thoroughly scrutinized the entire record in the light of arguments of the learned counsel of the parties.
12. This is a case of solitary eye-witness, who happens to be none else but father of the deceased.
Learned counsel for the appellant mainly stressed that the complainant himself is not the eye- witness of the occurrence, in fact he received information regarding the occurrence in his house, which is situated in closed proximity with the place of occurrence and registered the instant case against accused to conceal the real facts and to save the skin of his son from prosecution in criminal case No.275 registered on the same day in the same police station. Certain aspects of the case, like statement of the complainant, medical report and site plan creates reasonable doubts about his presence at the time of occurrence, whose statement was recorded as P. W.17 during trial. In the opening sentence of cross examination the complainant took divergent stand by saying that he is completely illiterate and has even not read the Holy Quran and cannot understand watch but in voluntary statement backed out from his earlier statement and said that his son was fired at 1-15 p.m. He offered explanation that he can understand and read his own wrist watch, which was immediately consulted after the occurrence and at the time of report. It was further explained that it was 2-00 p.m. At the Hospital when his report was taken down.
13. The occurrence, per contents of the F.I.R. Took place at 1315 hours but P.W.17 in his cross- examination stated, "we would have started from our house at about 9-00 a.m. In the morning and after covering about 50 paces, the occurrence took place". The witness tried to overcome his inconsistent statement through explanation in his voluntary statement that after they came out of the house he noticed that his pocket was empty, therefore he returned back to his house and his son was left on the spot, he came out again, went after his friend, busy in irrigation of land and borrowed Rs.500 from him and thereafter he returned to his house and took the deceased along with him but he did not explain that how much time was consumed since 9-00 a.m. For obtaining loan from his friend.
14. It also does not appeal to common sense that head of the family will take his son for medical treatment, without arranging money prior to coming out of his house, particularly when the son is suffering from fever for last 4/5 days. It clearly shows that the complainant tried to improve his statement and fill up the lacunas found therein.
15. On the same day at 1330 hours sister of acquitted co-accused Mst. Baz Bibi, went to Police Station, Ghuriwala and registered a criminal case against deceased Raqeeb Khan vide F.I.R. No.275 under sections 506/452/354/385, P.P.C., charging him for criminal intimidation, lurking house trespass, attempting to put her in fear of injury in order to commit extortion and use of criminal force to outrage her modesty. The complainant during cross examination expressed his ignorance about registration of the same case on the same day and in the same police station.
16. Contradictions in the statement of complainant, site plan and D medical evidence are also glaring which cannot be easily ignored. The appellant was shown at point No.3 in the site plan, which is situated towards south and complainant and deceased were shown coming from northern side. Point No.3 is situated behind the corner wall of the mosque, which spot is not visible from point No. 2 where complainant was shown to be present. Deceased was facing left side at the time of occurrence but ironically he had received entry wound on right orbital region to the anterior of the temporal (right), which could not be possible, keeping in view the site plan. Site Plan is not substantive piece of evidence but it definitely has evidentiary value regarding those matters which are the result of the observations of Investigating Officer and same cannot be discarded altogether to reflect prosecution story narrated by witnesses on whose pointation same is prepared, guidance has been borrowed from the dictum in the case of Latium Haq and 6 others v.
The State 1983 PCr.LJ 482.
17. During proceedings conducted under section 512, Cr.P.C. Statement of Muhammad Naeem Khan ASI was recorded as Investigating Officer but after arrest of the appellant due to death of the said witness, his statement recorded in absence of the appellant was transferred to the case file of the instant trial. He was cross examined by counsel of acquitted co-accused in the earlier trial, where he had categorically admitted certain facts, some of which are reproduced herein for convenience. {4114AC67-61D2-421E-9E1A-76ADD10D51E4}"It is correct that on the day of occurrence another F.I.R No.275 dated 27-10-2004 of Police Station Ghoriwala was -lodged. It is correct that the investigation of the said case was also conducted by me. I have seen the attested copy of the said F.I.R, Exh. P.W.14/DX-1, is the attested copy of said F.I.R. It is correct that according to that F.I.R. The decd: had entered into the house of complainant of that F.I.R. Duly armed with Kalashnikov and had demanded Ghunda tax. It is also correct that firing was alleged in the said F.I.R. Also. According to my own investigation also the contents of F.I.R. No.275 of 2004 of Police Station Ghoriwala were correct. It is correct that the decd. Was a known hardened and desperate person of the area. It is also correct that he had demanded Ghunda tax from many people, and had earned many enmities in the area."
18. The above admission of the witness proves that the deceased was a hardened and desperate person having bad reputation. There is possibility that his murder might have been committed by some body else, more particularly when he was charged for lurking house trespass, using force for extortion and outrage modesty of woman, on the same time in F.I.R. No.276.
19. Relationship of witness with the deceased is not disqualification to outrightly disbelieve his testimony but when the statement of solitary witness of closely related to the deceased is not in harmony with other material on record then conviction on the basis of such witness cannot be recorded. It is also established principle of criminal jurisprudence that single infirmity, creating reasonable doubt in prudent mind is sufficient for giving benefit of doubt to accused. Wisdom in this regard has been sought from the case of Riaz Maseeh alias Mithu v. The State 1995 SCM R 1730, Saeedullah v. Shah Nazar and others 2001 P.Cr.LJ 1740 and Jan Alam v. The State and another 2004 PCr.LJ 68.
20. {12FD19A6-F47A-42BF-BB85-D4E696125347}In the instant case the house of the complainant is closely situated near the place of occurrence. The cross F.I.R., registered before the registration of the present case has also been admitted by the Investigating Officer to be true and based on facts. No doubt site plan is not substantive piece of evidence and contradictions between medical report and ocular testimony is also not of vital importance. But when different pieces of evidence of prosecution, does not, corroborate each other on important aspects and when the solitary and closely related witness of the deceased conceals material facts and tries at every stage to improve his version then contradictions appearing in the site plan and medical report should be given weight and the benefit, if any, arising out of the same must be extended to the accused.
21. The only evidence against appellant is his abscondence for more than two years. The abscondence, is corroboratory piece of evidence but not substantial and in absence of other material evidence sufficient for conviction, abscondence loses its importance and merely on the ground of abscondence the conviction cannot be awarded to the accused. Reliance is placed on 2009 SCM R 803 and PLD 2004 Peshawar 32.
22. {76B8BA42-CE61-459F-8599-D9077E8BF5ED}In the light of above discussion the order of conviction passed by the learned trial Court is not sustainable, therefore, we accept the appeal of appellant Badshah Rahman and acquit him of the charges levelled against him. He should be released forthwith if not required in any other case.
23. Consequent upon the acceptance of Criminal Appeal No.77 of 2009, Criminal Revisions No.10 and 18 of 2009 are hereby dismissed