ASSADULLAH KHAN CHAMMKANI, J.- Through the instant criminal appeal, appellant Aslam, has assailed the judgment of learned Additional Sessions Judge-V, Charsadda, whereby he has been convicted and sentenced as under:- Under section 452 PPC: To undergo 01 year R.I. and to pay a fine of Rs.3000/- or in default thereof to undergo 01 month S.I. further.
Under Section 324 PPC: To undergo 03 years R.I. and to pay a fine of Rs.5000/- or in default thereof to undergo 01 month S.I. Under Section 337-F (v) PPC: To undergo 01 year R.I. and to pay Rs.20,000/- as Daman.
Benefit of section 382-B Cr.P.C. has been extended to him and the sentences has been directed to run concurrently.
2. On 26.06.2011 at 0340 hours, complainant Shafat Ullah aged about 17/18 years, in injured condition, in Casualty hospital Charsadda reported to local police that on the night of incident he alongwith other inmates of his house was sleeping in courtyard of his house; that at 2.20 hours, he awakened on some voice and noticed in the light of electric bulb appellant-convict Aslam alongwith absconding co-accused Irshad and acquitted co-accused Yaqoob, duly armed with firearms, who opened fire at them as a result, he sustained injuries; that after commission of the offence, the accused decamped from the spot. Previous blood feud enmity is stated to be motive behind the incident. In addition to him, the incident is stated to have been witnessed by PWs Istikhar ud Din and Mir Wali, his real uncles. Report of the complainant was reduced into writing in shape of murasila Exh.PA/1, by Munir Khan ASI (PW.1), on the basis of which, FIR Exh.PA referred above, was registered. He prepared injury sheet of injured complainant Exh.PW.1/1 and referred him for medical treatment.
3. Nasrullah Khan ASI (PW.9) rushed to the spot, prepared site plan Exh.PB at the pointation of eyewitnesses. During spot inspection he secured blood stained earth from the place of injured, vide recovery memo Exh.PW.8/1, recovered 4 empties of 7.62 bore vide memo Exh.PW.8/2, took into possession electric bulb of 100 Watts, vide memo Exh.PW.8/3, and vide recovery memo Exh.PW.8/4, he took into possession bloodstained clothes of the injured, sent by the doctor. He sent the bloodstained articles to the FSL, and received result thereof as Exh.PZ/1. As the accused were avoiding their lawful arrest, therefore, he initiated proceedings under sections 204 and 87 Cr.P.C. against them. On arrest of the appellant on 12.06.2012 by the SHO, he was handed over to him, interrogated him and recorded his statement under section 161 Cr.P.C.. On completion of investigation he handed over the case file to SHO, who submitted challan against the appellant.
4. On receipt of challan by the learned Trial Court, appellant was summoned and charge sheeted to which he pleaded not guilty and claimed Trial. To prove its case prosecution examined as many as nine witnesses. After closure of the prosecution evidence, statement of the appellant was recorded under section 342 Cr.P.C. wherein he denied the prosecution allegations and professed his innocence. He, however, declined to be examined on oath or to produce evidence in defence.
On conclusion of trial, the learned Trial Court, after hearing both the sides, convicted and sentenced him as mentioned above, hence, this appeal.
5. Learned counsel for the appellant argued that appellant is innocent has been implicated falsely on mere suspicions because of previous blood feud; that it does not appeal to a prudent mind that the assailants who opted odd hours of the night for commission of the offence would commit such foolishness to disclose their identity by entering the abode of their enemy without being muffled; that escape of the PWs in close proximity of the complainant is highly improbable; that non observance of any bullet marks on the walls falling in the fire line of the accused as shown in the site plan, also create doubts in a prudent mind; that no bulb has been recovered from front of any room of the house, except the one allegedly installed in a stick in the court yard but the alleged stick has also not been taken into possession; that kind of weapons allegedly having by the accused has not been alleged by the complainant in his report; that mere stamp of injuries on the person of a witness would not be a certificate of his truthfulness; that medical evidence and site plan contradict the prosecution version; that statements of the PWs are suffering from material contradictions and discrepancies creating serious doubts in the prosecution case, benefit of which is to be extended to the appellant and he be acquitted.
6. Complainant had been served personally, who also put appearance along with his counsel on so many dates, but today neither he nor his counsel turned up. Being an old case pertaining to year 2013, cannot be kept pending for indefinite period.
The complainant by his conduct lost his right of audience, therefore, learned AAG was asked to advance his arguments.
7. Learned AAG while controverting the arguments of learned counsel for the appellant contended that appellant is directly charged along with his co-accused for commission of the offence; that mention of electric bulb in report of complainant and recovery of the same from the spot coupled with the fact that parties are co-villagers inter-se, question of mistaken identity does not arise; that ocular account get corroboration from circumstantial evidence such as recovery of blood and crime empties from the spot coupled with medical evidence and site plan; that presence of complainant cannot be denied having stamp of injuries on his person and he has furnished truthful account of the incident; that defence has failed to shatter the prosecution evidence, therefore, the learned trial court was justified by holding the appellant guilty of the offence. He sought dismissal of the appeal.
8. I have heard the arguments and perused the record carefully.
9. On the face of record, the incident is that of odd hours of the night, took place at 2.20 a.m in the month of July 2011 (summer season). Blood feud with the accused has been alleged by complainant as motive behind the occurrence. In his report, complainant has not uttered a single word about the mode and manner of entry of the accused and their exit after commission of the incident. If we accept that by then he was asleep, therefore, would not have observed entrance of the accused, but he ought to have disclosed about the mode and manner of escape of the accused from the spot. He has not furnished height of boundary walls of his house nor did the I.O. bother to give the same in the site plan and this omission on the part of the I.O. seems to be deliberate, so as to keep in dark the Court from possibility or impossibility of entry of the accused.
We are mindful of the fact that in pathan society, village people do keep height of boundary walls of their houses more than 10 feet and also keep pet dogs because of their enmities. Complainant himself admit blood feud with the accused, so it does not appeal to mind that they would have left open main gate of their house or less height of boundary walls of their house. The question as to how the accused entered the house of the complainant and that why they would take such a risk by climbing over the boundary walls of house of their enemies keeping in mind every apprehension of counter attack from the opposite side, and if so, then why only complainant was targeted and eyewitnesses Istikhar ud Din and Mir Wali, who are real uncle of the complainant, out of whom PW Istikhar ud Din was previously charged for murder of son of Yaqoob and was ultimately acquitted by Hon'ble Supreme Court, were let off, are questions disturbing a prudent mind, for which no explanation has been furnished by the prosecution. Again, if the accused were not conscious about concealment of their identity then they could easily initiate the occurrence at day time being complainant party their co-villagers. So it does not appeal to a prudent mind that assailants who select night, specifically for concealing their identity, would enter house of their enemy without being muffled. Besides, in our society majority of people do keep firearm in their houses, particularly, those people who are having enmity. In case of injuries to the complainant, his uncles PWs Istikhar ud Din and Mir Wali, could easily chased the accused by taking their arms and could fired at them after some chase, but such is not the situation herein, which conduct of the PWs is quite contrary with the natural human conduct and customs and traditions of the society, thus, create serious doubts about their presence on the spot. No bulb has been taken from outside any of the room. Recovery of bulb from a stick in the courtyard seems to be after thought, as the alleged stick has not been taken into possession. Moreover, if we accept the presence of bulb in the court yard, again as a routine practice, people turn off lights at night while going to bed that's why the complainant has not alleged in his report about kind of the weapons the accused were allegedly having, and later on, when the I.O. recovered some crime empties of 7.62 bore, he in order to bring in line his testimony deposed in his court statement that the accused were armed with Kalashnikovs, which amounts to dishonest improvements and would damage the prosecution case.
10. In the site plan, injured complainant has been shown at point No.1, eyewitnesses Istikhar ud Din at point No.2 while at point No.3 other eyewitness namely Mir Wali has been shown in their respective beds/Cots in the court yard of the house. The accused have been shown at points No.4, 5 and 6. The inter-se distance between the complainant and eyewitnesses is a single space while distance between the complainant, eyewitnesses, and the accused are 8 to 12 paces. Despite close proximity of single space, none of the eyewitnesses, namely, Istikhar ud Din and Mir Wali, has sustained any injury, which seems highly improbable in case of indiscriminate firing of three accused with automatic weapons like Kalashnikovs from close proximity of 8 to 10 paces as alleged by the complainant. As stated earlier, PW Istikhar ud Din had been charged previously for murder of acquitted co-accused Yaqoob and no compromise has been effected in the said case, so in such eventualities, he should be the first target of the accused, but strangely he has been let off while his young nephew i.e. complainant was selected. Similarly, no bullet marks have been observed on wall of a room behind the eyewitness in fire line of the accused. No blood has been recovered from the bed of the complainant. The beds/Cots of the complainant party have neither been shown in the site plan nor taken into possession in support of his version. Similar is the case of mattress etc. Complainant Shafatullah appeared as PW.5 while Istikhar ud Din as PW.6. Both have contradicted each other on material aspects of the incident.
11. In light of the evidence available on record the occurrence seems to be a job of single person keeping in view one and the same dimension of injuries on the person of the injured complainant coupled with positive FSL report qua the recovered crime empties that these have been fired from one and the same weapon. No weapon of offence has been recovered from direct on indirect possession of the appellant nor has he confessed his guilt before any competent court of law. No evidence whatsoever is on the file to prove that, that single person was the appellant.
12. No doubt, in hurt cases, statement of injured witness, supported by medical evidence, is sufficient for recording conviction, provided it rings true and is trustworthy, in view of its intrinsic worth. Mere stamp of injuries on the person of a witness would not be a proof of the fact that whatever he deposes would be the truthful account of the events. His veracity is to be tested from the circumstances of the case and his own statement whether it fits in the circumstances of the case or otherwise. The hon'ble Supreme Court in case titled, "Muhammad Pervez and others Vs the State and others" (2007 SCM R 670), has held as under:- "Injuries on a prosecution witness are only indication of his presence at the spot but are not affirmative proof of his credibility and truth".
Guidance in this regard can also be derived from case titled, "Said Ahmad Vs Zammured Hussain and 04 others" (1981 SCM R 795). Same is the view of the Hon'ble Lahore High Court expressed in case titled, " Muhammad Hayat Vs the State" (2007 MLD (Lahore) 1543) and case titled, "Riaz Vs the State" (PLD 2007 Lahore 606), that:- "Injuries on a prosecution witness only indicate his presence at the spot, but do not prove his credibility and truth".
13. It is well settled principle of law that for recording conviction strong and corroborative evidence of unimpeachable character is required. It is golden principle of criminal justice that finding of guilt against accused must not be based on probabilities to be inferred from evidence. Such findings must rest surely and firmly on the evidence of unimpeachable character, otherwise, the golden rule of benefit of doubt would be reduced to naught. Absolute certainty is seldom in forming an opinion qua guilt or innocence of a person. The Courts by means of proper appraisal of evidence must be vigilant to dig out truth of the matter to ensure that no injustice is caused to either party. 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 embedded principle of criminal justice that there is no need of so many doubts in the prosecution case, rather any reasonable doubt arising out of the prosecution evidence, pricking the judicious mind is sufficient for acquittal of the accused.
14. For the foregoing discussion I have reached to an irresistible conclusion that the prosecution has miserably failed to bring home the guilt of appellant through cogent and confidence inspiring evidence. The prosecution evidence is pregnant of doubts which go to the very roots of the case, benefit of which is to be extended to none else but the appellant. The learned Trial Court by not properly appreciating the evidence discussed above, reached to an erroneous conclusion by holding the appellant guilty of the offence, hence, the impugned judgment is liable to be set aside.
15. Resultantly, this appeal is allowed.
Conviction and sentence of the appellant recorded by the learned trial Court are set-aside and he is acquitted of the charge leveled against him. He is on bail, his bail bonds stand cancelled and sureties are absolved from the liability of bail bonds.