' NISAR HUSSAIN KHAN, J.---Through the instant appeal, appellant has called in question the judgment of learned Sessions. Judge Karak at Takht-e-Nasrati, dated 17-11-2009, vide which, he was convicted under section 302(b), P.P.C. And was sentenced to life imprisonment with payment of Diyat amount of Rs,7,54,310 to be paid to the legal heirs of the deceased, recoverable as arrears of land revenue in case F.I.R. No,265, dated 6-11-2007, registered under sections 302/34, P.P.C. At Police Station Takht-e-Nasrati, Karak. Benefit of section 382-B, Cr.P.C. Was also extended to the appellant.
2. The prosecution case as per F.I.R. Is that one Bilqiaz Khan son of Ilyas Khan, resident of Masti Korona, in company of the dead body of his son Hazaratullah made a report, in emergency room of Civil Hospital Takht-e-Nasrati' , to Muhammad Ghani Khan ASI, that at the time of occurrence, he was present at home and his son Sharifullah, was also with him. In, the meantime; they heard report of firing, on which; he along with his son Sharifullah, came out of the house. The boys shouted that Hazratullah has been injured by firing of some one On this information, he rushed to the spot and on reaching there, he found his son Hazratullah, injured on the' spot, drenched in the blood and unconscious, whereas the assailant had fled away. Vehicle was arranged hurriedly and the injured was shifted to KDA hospital to save his life, wherefrom, he was referred to Lady Reading Hospital, Peshawar. They left for Peshawar on an ambulance and when reached at Muslim Abad (Gadha Khel), Hazratullah succumbed to the injuries, wherefrom they returned back and came to hospital Takht-e-Nasrati. In his. Report, the complainant did not charge anybody. OR this report, case was registered vide No,265, against an unknown assailant. On the neat day, on the basis of information of two P. Ws. Namely Gul Rabistan and Nasir Zaman, complainant, charged the present appellant and acquitted co-accused Mst. Maria Jabeen. Case was investigated and challan was submitted. On conclusion of trial, co-accused Mst. Maria Jabeen was acquitted while the appellant was convicted, as mentioned above.
3. Appellant has filed Criminal Appeal No,4-B of 2009, against his Conviction, while complainant has filed Cr.R. No,2-B of 2009, for enhancement of sentence of the respondent-convict, from life to death. As both, the appeal and Cr.R. Are emanating from the same F.I.R. And judgment, therefore, are going to be disposed of through this common judgment.
4. Learned counsel for the appellant-convict, argued that appellant is not directly charged in the F.I.R.; that presence or the complainant at his home, at the time of occurrence and that of the P. Ws.
At the spot, is doubtful; that the conduct of the Gul Rabistan and Nasir Zaman, is also unnatural, so they are not reliable witnesses; that the P.Ws. Have made so many improvements before the Court, which has discredited their testimony; that prosecution has failed to prove motive of the occurrence; that accused was not known to the P.Ws., so the identification was must, but no identification Parade has been conducted; that prosecution has failed to prove its case through cogent and coherent evidence against the accused; that mere abscondence of the accused, may not be a ground for his conviction; that the learned trial Court has wrongly convicted the appellant, who is entitled for acquittal.
5. Learned counsel for the complainant argued that it is a case of single accused, against whom there is no on the part of the complainant, as there is no previous enmity, so there is no question of false implication; that conviction can be recorded on the basis of statement of a single witness; that delay in report is not fatal; that lapses in investigation on the part of the I.O., may not be accounted against the appellant, when there is no allegation of dishonest investigation. So the appellant has rightly been convicted and his appeal is liable to be dismissed. In support of his Cr.R. Learned counsel for the complainant argued that when the guilt of the accused/respondent was proved then the trial Court should have awarded the normal penalty of death. Thus, by accepting the revision petition, the sentence of the respondent-convict be enhanced.
6. We have given our anxious consideration to the respective arguments of the learned counsel for the parties and have gone through the evidence and record with their valuable assistance.
7. The perusal of the F.I.R. Transpires that nobody has seen the occurrence, despite the fact that the place of occurrence is at a distance of 200 paces, from the house of the complainant. Besides that, it is the case of prosecution that the occurrence has taken place in front of village of the complainant party. Admittedly, the deceased was murdered at the place, mentioned by the complainant, because blood-stained earth has been recovered therefrom. The question is that who has committed this crime? Complainant has stated that he was informed by the local kids, about the occurrence, but neither those boys have been examined by the I.O. Nor have been produced before the Court. Rather the complainant has also not disclosed, in his first report, that what were the features and body structure of the assailants, disclosed by those boys. The report reflects that even those boys have not seen the assailants. According to the statement of the complainant, he was serving as Registration Officer, in Registration Department, at Karak and on the day of occurrence, he had come home, after performing his duty. As per F.I.R., the time of occurrence is 1-15 p.m. In the month of November and he further stated that he reached home, 30 minutes before the occurrence, which means that he came home, at 12-45 p.m. Which does not appeal to reasons, when he did not offer, any explanation that why he came home so early, because in normal course, he was not expected to be at home before 3 to 4 p.m. So his presence shown at home, is also doubtful. While report was also lodged at 1720 hours, with a delay of 4 hours and 5 minutes, C which further strengthen the suspicions that complainant was not at home at the time of occurrence.
8. It is the case of the prosecution that Gul Rabistan and Nasir Zaman P.Ws., had seen the occurrence and they informed the complainant on the next morning, on the basis of which, he charged the appellant. The conduct of P.Ws., named above, is also suspicious and D their presence, at the spot, is also doubtful. The case of the prosecution is that complainant was informed by kids and none else. Had these witnesses been present at the spot and had seen the occurrence, they might have informed the complainant, who came at the spot within minutes. Secondly, as per evidence, the appellant, belongs to another village and he came there and allegedly committed this occurrence, in view of both these P.Ws., after having a chat with them and proceeded ahead and then committed the occurrence at a distance of 52 paces from them, which is quite unnatural and unbelievable,. Particularly, when the assailant was taken by the deceased on his motorcycle, in their presence. Moreover, these witnesses instead of informing the complainant or anybody else, chased the appellant from village upto Highway, wherefrom appellant allegedly boarded in a Car and they, after a while, boarded on a Datsun and went to his village and thereafter returned back by locating house of accused. After undertaking such an hectic exercise, they did not inform the complainant about the ccused at night. Rather they preferred to go to beds for a comfortable sleep, when the complainant was at home with the dead body of his young son. In this conservative and socially well-knit and bonded society, it is quite unnatural and unbelievable too that when a young boy was murdered and his dead body was lying at home, but his relatives or even the co-villagers would prefer to have a sweet sleep, instead of mourning with the bereaved family and on the next morning, they would come and inform the complainant that it was the appellant, who has committed the occurrence, who was chased by them since 1-15 p.m. Till 11-00 p.m. At night. This behaviour of the P.Ws., is quite unnatural, which makes their presence at the spot doubtful. Moreover Naser Zaman P.W. Has been abandoned while Gul Rabistan P.W.7 belongs to village Dinger Walla, another village. How E and why he was present at or near the place of occurrence is another begging question which remained unanswered, in prosecution evidence. So their statements cannot be relied in these circumstances, particularly when report was also delayed for about four hours. Rather a single reasonable doubt arising out of the prosecution evidence is sufficient for acquittal of the accused.
9. This witness, Gul Rabistan has also stated, that appellant was not personally known to him. It was incumbent upon prosecution or for that matter the I.O. To get the appellant identified in properly arranged identification parade. In absence of any legal identification test, the testimony of this sole P.W. Cannot be believed. The whole prosecution case hinges upon his just one sentence, that, assailant told to Gul, Rabistan that his name was Hazratullah. Hundred and one conclusions may be drawn from this hearsay statement. One of those is that assailant might have tossed a wrong information to this P.W., if it is assumed for E a while that he was present over there, just to conceal his identity, when he had come with intention to kill the deceased. Such a weak, shaky and tainted evidence cannot be relied and acted upon for recording conviction in an offence entailing capital punishment.
10. The motive attributed to the appellant is that he had love affairs with one Mst. Maria Jabeen, that's why, he has killed the deceased, but the prosecution has failed to prove the alleged motive through cogent, convincing and reliable evidence. Firstly, the complainant, himself deposed that he does not charge Mst. Maria Jabeen for the crime. Secondly, one Mst. Rukhsar P.W.12 was produced, presumably to prove the motive, but her statement is so shaky and ambiguous, which may not be relied upon. Rather she stated in her cross-examination, that Mst. Maria Jabeen was not known to her, prior to the occurrence. In light of this evidence, the prosecution has failed to prove the motive, as alleged. No doubt presence and proof of motive is not sine qua non for recording conviction and the accused can be convicted even if no motive is alleged by the prosecution or alleged, but not proved at the trial. This exception can only be availed when otherwise convincing, 'coherent, trustworthy and confidence-inspiring evidence of unimpeachable character has been brought on record, against the accused. The instant case is based on the sole statement of one Gul Rabistan while the other alleged eye-witness Nasir Zaman has been abandoned by the prosecution.
Statement of Gul Rabistan is inherently defective, untrustworthy and lacks the intrinsic worth, which cannot be believed for the reason discussed earlier.
11. The other evidence of recoveries, post-mortem of the deceased and site plan, are corroborative in nature, which cannot be made basis for conviction, when the ocular account is disbelieved.
12. It is cardinal principle of administration of criminal justice that prosecution is bound to prove its case beyond any shadow of doubt. If any reasonable doubt arises in the prosecution case, the benefit of the same must be extended to the accused not as a grace or concession, but as a matter of right. Likewise, it is also well-settled principle of criminal justice that there is no need of so many doubts in the prosecution case.
13. For the reason discussed above, this appeal is allowed, impugned judgment of the learned trial Court is set aside and by extending benefit of doubt the appellant-convict is acquitted of the charge. He be set free if not required in any other case.
14. As regard Cr.R. Filed by the complainant for enhancement of sentence, after acceptance of the appeal of appellant-convict, instant Cr.R. Stands infructuous, which is hereby dismissed.
' These are the detailed reasons for our short order of the even