JUDGMENT ASSADULLAH KHAN CHAMMKANI, J.- Appellant Anar Khan, has challenged the judgment of learned Additional Sessions Judge Takht-e-Nasrati, Karak, dated 12.11.2013, whereby he has been convicted and sentenced as under:- Under Section 148 PPC:- To undergo 03 years S.I. and to pay a fine of Rs.5000/- or in default thereof to undergo 03 months SI further.
Under Section 324 PPC:- To undergo 07 years on three counts and to pay a fine of Rs.10,000/- or in default thereof to undergo 06 months S.I. further.
Under Section 337-F (i) and 337-F (iii) PPC:-To pay compensation of Rs.20,000/- to injured Mst.
Yasmin as "Daman" and Rs.40,000/- as Daman to injured Mst. Naseem Bibi which shall be paid in lump sum in accordance with the provisions of section 337-Y (2) PPC.
Under Section 457 PPC:- To undergo 05 years S.I. and to pay Rs.15000/-= as fine or in default thereof to undergo 09 months S.I. The sentences have been directed to run concurrently. Benefit of section 382-B Cr.P.C. has been extended to the appellant-convict.
2. On 31.05.2012 at 04.00 a.m, complainant Mst. Shahnaz Bibi, in company of her injured daughters Mst. Yamin Bibi and Mst.Nasim Bibi, reported to local police in emergency room of civil hospital Takht-e-Nasrati to the effect that on the fateful night at 01.00 hours, appellant alongwith absconding co-accused Zafar Khan, Lak Khanan alias Khattak, Baz Muhammad Khan alias Baz and Hashim Khan, duly armed with firearms, entered her house, call her son Hafizullah and on her reply about non-availability of her son, they opened indiscriminate firing at them, as a result, her daughters Mst. Yasmin and Mst. Nasim Bibi, got hit and injured, while she luckily remained unscathed. In addition to her, the incident is stated to have been witnessed by her children. Report of the complainant was reduced into writing in the shape of murasila Exh.PW.1/1 on the basis of which FIR No.71 dated 31.05.2012 under sections 324/452/148/149 PPC was registered against the accused.
3. On arrest of the accused/appellant and completion of investigation, challan was submitted against him before the learned Trial Court, where he was formally charge sheeted to which he pleaded not guilty and claimed trial. To prove its case, prosecution examined as many as ten witnesses. After closure of the prosecution evidence, statement of accused/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 under section 340 (2) Cr.P.C. or to produce evidence in defence. On conclusion of trial, learned Trial Court, after hearing both the sides, convicted and sentenced the appellant, as mentioned above, hence, this appeal.
4. Learned counsel for the appellant argued that occurrence is that of odd hours of night; that neither complainant in her report has uttered a single word about any source of light, nor the I.O. has recovered and taken into possession any source of light/electric bulb etc from the spot nor shown in the site plan, therefore, identification of the assailant/assailants is highly doubtful; that assailants who chose night time would never take a risk to disclose their identity before their target as alleged by complainant; that injured PW Nasim Bibi has been abandoned while statements of injured Yasmeen Bibi and complainant are contradictory with each other on material particulars of the incident; that mere stamp of injuries on the person of a witness would not be a certificate of his/her truthfulness; that site plan and medical evidence also contradicts the prosecution story; that prosecution has miserably failed to bring home the guilt of appellant through cogent and confidence inspiring evidence, therefore, conviction and sentence of the appellant, being based on surmises and conjectures, is liable to be set-aside.
5. Conversely, learned AAG assisted by learned counsel for the complainant argued that appellant is directly charged for the occurrence alongwith absconding co-accused with specific role of firing; that complainant and her injured daughter Mst. Yasmin Bibi have furnished truthful account of the incident and the prosecution has miserably failed to shatter their testimony; that medical evidence as well as recovery of blood from the spot, crime empties of 7.62 and 12 bore coupled with positive Serologist report and positive FSL report qua crime empties corroborate the ocular account, therefore, the learned Trial Court was justified by holding the appellant guilty of the offence; that impugned judgment being based on proper appreciation of evidence on record, is not open to any interference, hence, sought dismissal of the appeal.
6. I have considered the respective submissions of both the sides and perused the record carefully.
7. As evident from First Information Report, the occurrence is nocturnal, taken place in month of May, 2012 at 01.00 a.m. in the house of complainant Mst. Shahnaz Bibi, situated in village Darsha Khel, Karak. Though, she has not specifically mentioned in her report but as shown in the site plan, at the relevant time of the incident she along with her children was allegedly sleeping in the court- yard of her house. Complainant has not stated a single word about any source of light in which she identified the accused. Her stance that first the accused called her son Hafizullah and when she responded about his non-availability, the accused opened fire at them, does not appeal to a prudent mind because no assailant who chose night time, and that too odd hours just to conceal identity, would commit such foolishness as alleged by the complainant. Neither the I.O. has recovered any electric bulb from the spot nor shown in the site plan so as eliminate the impossibility of identification. Rather, Mst. Shahnaz Bibi in her statement as PW.1 categorically deposed that it was pitch dark at the time of occurrence. In the circumstances, identification of the assailants is highly doubtful.
8. Complainant Mst. Shahnaz Bibi appeared as PW.1. In her statement she again kept mum about any source of light on the spot in which she identified the accused. She has charged five accused by names in her report but has not specifically mentioned as to who out of the five accused, called her son and as to whether she was acquainted with the voices of the accused before the incident.
While negating her earlier version, she in her statement charged only four accused. In cross- examination she admitted that it was pitch dark at the time of incident. In further cross- examination she has introduced some new events, which she has never stated in her report, such as the mode and manner of entry of the accused and their escape from the spot and number of fire shots fired by the accused.
9. Mst. Yasmin Bibi injured appeared as PW.2. She too in by charging four accused, decreased the number of the accused charged in the FIR. She for the first time introduced moon light in which she allegedly identified the accused but complainant has not uttered a single word about any moon light. She also denied her statement under section 161 Cr.P.C. recorded by the I.O. Her statement is in gross contradiction with the testimony of complainant on material particulars of the incidents such as entry of the accused into their house, style/position of their presence inside the house and then decamping from the spot. Besides, both the PWs have admitted their visit to Police Station first and then to the hospital, but no report has been lodged in the Police Station. Thus, all these peculiar facts and circumstances of the case strongly suggests that the occurrence has not taken place in the mode and manner as alleged by the PWs. The escape or let off the complainant from indiscriminate firing of five accused, who allegedly was in close proximity with her injured daughters, is another disturbing circumstance creating doubt in a prudent mind. In the site plan, the height of boundary walls of the house of the complainant has been shown as five feet, which can easily be climbed over. The overall facts and circumstances of the case suggest that the assailant/assailants while taking benefit of low height of the boundary walls and that of pitch dark, in random fired at the complainant party with expression that the male members are sleeping in the court yard, but unfortunately female children of complainant sustained injuries as the incident is also against the traditions and customs of the area where females, children and old and infirm people are not targeted in the enmity. The presence of complainant in the courtyard with her daughters is also doubtful. Had she been present with them as shown in the site plan, she would have also sustained injuries being at the mercy of the accused and in close proximity with the injured PWs. Complainant in her statement admits that her hands and clothes were smeared with the blood of her injured daughters but she has not produced the same before the I.O. nor the I.O. has bothered to took the same into possession, which was an important piece of evidence for establishing the presence of the complainant on the spot.
10. Though, the presence of PW Mst. Yasmin Bibi at the spot cannot be denied because of injuries on her person. 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/her veracity is to be tested from the circumstances of the case and his/her own statement whether it fits in the circumstances of the case or otherwise. 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. Injuries on a prosecution witness only indicate his presence at the spot, but do not prove his credibility and truth. In this regard guidance may be derived from case titled, "Muhammad Pervaz and others v. The State and others" (2007 SCM R 670) and Said Ahmad's case 1981 SCM R 795.
11. As regard recovery of blood from the spot, bloodstained garments of the injured and recovery of crime empties coupled with FSL reports. These being corroborative pieces of evidence, in absence of direct and substantial evidence, would not be sufficient to prove the guilt of the appellant, which are always taken into consideration alongwith direct evidence. The direct evidence of the prosecution is highly improbable and suffers from material contradictions and discrepancies which creates serious doubts about the mode and manner of the occurrence as alleged by the prosecution. As observed by the apex Court, corroborative evidence is meant to test the veracity of ocular evidence. Both corroborative and ocular testimony is to be read together and not in isolation. Wisdom in this regard may be derived from Ijaz Ahmed's case (1997 SCM R 1279), Asadullah's case (PLD 1971 SC 541) cases titled, "Saifullah Vs the State" (1985 SCM R 410), "Riaz Masih Vs the State" 1995 SCM R 1730, Siraj Vs Crown (PLD 1956 Federal Court 123), and Saifullah's case (1985 SCM R 410).
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, 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 entrenched 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. Basically, it is the principle enshrined in Islamic jurisprudence, fourteen hundred years ago that "it would be better to acquit hundred culprits than convicting one innocent soul."
13. For what has been discussed above, I have reached to an irresistible conclusion that prosecution has miserably failed to bring home the guilt of appellant through cogent and confidence inspiring evidence beyond shadow of doubts. I while extending benefit of doubt, allow this appeal, set-aside his conviction and sentence and hereby acquit him of the charge leveled against him. He be set at liberty forthwith, if not required in any other case.
14. Before parting with the judgment I deem it appropriate to refer to the argument of learned counsel for the complainant that due to injuries on the person of injured Mst. Nasim Bibi, her left leg has been amputated above her knee. Though, there is nothing on the record in black & white such as medical evidence to substantiate the argument of learned counsel for the complainant, but this court has taken with great concern to the conduct of the Investigating Officer as well as Medical Officer who conducted medical examination of injured Mst. Nasim Bibi. As per her medico legal report dated 31.05.2012, her X-ray were advised, but could not be done because of non-availability of electricity on that very day as manifest from the note of the medical Officer, but till date no X-ray has been done. If electricity was not available on that very day, the same could be done on the following day. Neither the medical officer has bothered to recognize his official obligations nor the I.O. has taken pain to trace out/collect X-ray of the injured or to remind to the medical Officer about the same. This lethargic attitude of both the responsible officials being against the norms of justice is highly deplorable and shall not be allowed to prevail in future. Additional Registrar of this court is directed to send copy of the judgment Medical Superintendent concerned hospital and Senior Superintendent of Police (Investigation) Karak, for taking the matter into consideration and curbing such illegal practice in future.
15. These are reasons of my short order of even date.
Announced. 04.12.2014 J U D G E maintained that the learned Trial Court has the jurisdiction to entertain the suit and in case of decision of issue of the jurisdiction in favour of the petitioners, after conclusion of trail, it would be respondent to suffer and she is ready to face the consequences of such scenario. He while supporting the impugned orders, sought dismissal of the instant petition.
5. Come what may, the issue raised, being a mixed question of law and fact, can properly be resolved, after recording pro and contra evidence of the parties by the learned Trial Court. In view of the above, the impugned orders of both the courts below are set aside and the matter is remanded to the learned Trial Court with the direction to frame a specific issue (qua) jurisdiction, if already not framed, to afford an opportunity to the parties for leading their evidence and then to decide the suit on merits in accordance with law. The learned Trial Court shall conclude the trial as early as possible, but not later than 4 months, on receipt of the record. Office shall ensure.