JUDGMENT ASSADULLAH KHAN CHAMMKANI, J.- Through the instant appeal, appellant Ashraf Ali has called in question the legality and propriety of judgment dated 18.12.2012, handed down by learned Additional Sessions Judge, Lahore, Swabi, whereby he convicted appellant under section 324 PPC and sentenced him to undergo seven years simple imprisonment and to pay a fine of Rs.5000/- or in default thereof to undergo 01 months S.I. further. He further convicted and sentenced him under section 337-A (iii) PPC to pay 10 percent of diyat as Arsh to injured complainant. Benefit of section 382- B Cr.P.C. was extended to him.
2. On 01.07.2011 at 01.45 a.m. complainant Ayaz Ali (PW.10) in injured condition, in company of his brother Afsar Ali (PW.11), reported to local police in casualty of Swabi hospital that on the night of occurrence one Shoaib had arrange dinner for them in his house; that after taking dinner they were busy in chat when in the meantime at 00.30 hours (mid night) Ashraf (appellant-convict) herein opened fire at him, as a result he sustained injury on his face. Motive behind the occurrence is stated to be an oral altercation few days prior to the incident. In addition to complainant, the occurrence is stated to have witnessed by his brother Afsar Ali (PW.11) and Shoaib (abandoned PW). Report of the complainant was reduced into writing in the shape of murasila Exh.PW.8/1 by Gohar Ali ASI (PW.8) on the basis of which FIR No.760 dated 01.07.2011 was registered under section 324 PPC at Police Station Lahor, Swabi. PW.8 prepared injury sheet of injured Exh.PW.8/2 and referred him to medical Officer for treatment.
3. Tariq Saeed ASI (PW.2) proceeded to the spot and prepared site plan Exh.PW.1/1 on pointation of eyewitnesses. During spot inspection he secured bloodstained earth from the place of injured vide memo Exh.PW.2/2 and recovered a 30 bore empty shell from the place of accused vide memo Exh.PW.2/3. He also took into possession the bloodstained garments of the injured, sent the bloodstained articles to the FSL, received FSL report Exh.PK, initiated proceedings under section 204 and 87 Cr.P.C. against the accused, recorded statements of the PWs and after completion of investigation handed over case file to SHO, who submitted complete challan in terms of section 512 Cr.P.C. After arrest of the accused, Ahmad Ali Khan SI (PW.3), obtained his physical remand and interrogated him. Vide memo Exh.PW.3/3 he took into possession pistol which was allegedly recovered from accused at the time of his arrest. He sent the pistol and recovered empty shell to the FSL and received result thereof. After completion of investigation, supplementary challan was submitted against the accused 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 twelve 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, neither wished to be examined on oath under section 340 (2) Cr.P.C. nor opted to produce evidence in defence. On conclusion of trial, learned Trial Court, after hearing both the sides, convicted and sentence the appellant, as mentioned above. Hence, this appeal.
4. Learned counsel for the appellant argued that it is unseen occurrence taken place in the odd hours of night; that no source of light has been disclosed by the injured in his report nor during spot inspection any electric bulb or any other source of light has been shown in the site plan or taken into possession by the I.O. thus, identification of the assailant in dark is highly doubtful; that it does not appeal to a prudent mind that how accused in the dark recognized and identified the injured to target him when he was in association of three other persons; that entry of the accused by jumping over the wall of house and after committing the offence his escape in the same mode is a cock and bull story; that neither any bed/Cot has been shown in the site plan nor the any dinner pots have been taken into possession; that negative FSL report qua recovery of 30 bore crime empty and 30 bore pistol negates the prosecution story; that it is not a universal principle that a witness having the stamp of injury would definitely speak the truth unless his statement is corroborated by other strong circumstances of the incident; that Sohaib who had arranged dinner and his companion Naveed, who also participated in the dinner, have been given up by the prosecution for no good reason which amounts to withholding of bests available evidence, therefore, adverse inference would be drawn against the prosecution; that prosecution has miserably failed to prove the guilt of the appellant through cogent and confidence inspiring evidence beyond shadow of reasonable doubt, thus, by extending benefit of doubt to accused, he be acquitted.
5. Conversely, learned counsel for the complainant contended that accused is singularly and directly charged by injured in a promptly lodged report; that accused was previously known to the complainant having altercation with him prior to the occurrence, hence, question of mistaken identity does not arise; that ocular account furnished by injured and other PW Afsar Ali finds support from medical evidence, recovery of blood from the spot and other strong pieces of evidence whereas the defence has failed to create any dent in the prosecution evidence. He contended that prosecution has proved the guilt of appellant up to the hilt through cogent and confidence inspiring evidence and the learned trial court has rightly held him guilty of the offence; that unexplained noticeable abscondence of the appellant is another circumstance which prove his guilty conscious. He while supporting the impugned judgment sought dismissal of the appeal.
6. Learned A.A.G. adopted the arguments of learned counsel for the complainant and contended that impugned judgment being based on proper appreciation of evidence is not open to any interference.
7. I have considered the exhaustive submissions of learned counsel for the parties and perused the record with their able assistance.
8. The occurrence has taken place in the in the month of July, 2011 at 00.30 hours i.e. mid night. The place of occurrence is the house of one Shoaib, who had allegedly arranged dinner for his companions where injured complainant and PW Afsar Ali also participated. A look over report of the injured depicts that he has not stated a single word about any source of light whether electric or moon and that how he identified the accused. Similarly, no source of light has been shown in the site plan nor any electric bulb has been taken into possession by the I.O. during spot inspection.
During their court statement neither the complainant nor PW Afsar Ali have explained as to they identified the accused. The crime house as shown in the site plan is a big house consisting of three residential rooms, a bath room and a kitchen having boundary walls and a main gate. Injured Ayaz Ali has been examined as PW.10. He deposed that at the time of occurrence he was present with Afsar Ali, Naveed and Sohaib at the and were busy in chat in court yard of the house. He deposed that accused entered the house by jumping over the wall of the house and after commission of the offence decamped from the spot in the same manner. Afsar Ali (PW.11) toed the same way about entry and exit of the accused. The I.O. has not shown in the site plan the height of the wall, however, according to complainant-injured the height of wall of the house was 5 feet. Both have deposed that main gate of the house was closed at the time of occurrence. There is no other house near the crime house. There are fields towards the East and south of the crime house while towards north there is open ground while towards the west there is a thoroughfare as shown in the site plan. The house is located in unpopulated area. 5 feet high boundary wall of a residential house is highly improbable in such like area; rather in routine observation, people do keep the height of boundary walls of their house in such like areas from 8 to 10 feet. Thus, jumping over the wall, committing the offence and then making his escape in the same mode by the accused is highly dubious.
Moreover, if we presume the entry of accused in any manner, question would be as to how he identified and recognized the complainant-injured who was sitting with three others. Mere oral altercation has been alleged as motive and it cannot be expected that a person on such petty motive would take such a risk to enter a stranger's house behind his target by jumping over the wall, keeping in mind the apprehension of his life and arrest at the hands of inmates of the house.
None of the PWs has tried to apprehend the accused, which seems very strange, particularly, in case of PW Afsar Ali, who is the real brother of the injured. During spot inspection neither any dinner pot nor the Bed/cots have been taken into possession nor shown in the site plan by the I.O. to justify the prosecution story. All these peculiar facts and circumstances create serious doubts in the prosecution case, particularly identification of the accused by the PWs and that of injured by the accused. The occurrence does not seems to have been taken place in the mode and manner as alleged by the PWs rather in some other mode which would be best known to injured but he has suppressed the real facts. 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. 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.
9. Besides, Shoaib, owner of the crime house, who had allegedly arranged dinner and his friend Naveed, have been abandoned by the prosecution for no good reason. Both being not related to the injured were impartial witnesses, thus, their non-examination amounts to withholding of best available evidence and in the circumstances adverse inference within the meaning of Article 129 G of the Qanun-e-Shahadat Order, 1984 would be drawn that had they been produced in the witness box, they would not have supported the prosecution case. Reliance in this regard can be placed on case titled, "Shah Nawaz Vs Lal Khan and 2 others" (1972 SCM R 286) and Master Muhammad Saddique's case (2003 M LD 1774).
10. The prosecution has also relied upon recovery of crime empty from the spot and 30 bore pistol from possession of the accused as crime weapon. According to prosecution evidence it was the accused, who disclosed that he had used the recovered pistol in commission of the offence but the negative FSL report qua crime empty and said 30 bore negatives the prosecution version.
11. No doubt, proceedings under section 512 Cr.P.C. were initiated and completed against the appellant, but he has denied abscondence in his statement under section 342 Cr.P.C. It is settled law that abscondence alone, cannot be a substitute of real evidence. Reliance can be placed case titled, "Rohtas Khan Vs the State" (2010 SCM R 566).
12. For the reasons 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 doubt. The prosecution evidence is pregnant of doubts and according to golden principle of benefit of doubt, one substantial doubt would be enough for acquittal of the accused. Reliance placed on case titled, "Muhammad Zaman Vs the State and others" (2014 SCM R 749).
13. Resultantly, this appeal is allowed.
Convection and sentence of the appellant recorded by the learned trial court vide impugned judgment are set aside and he is acquitted of the charge. He be set at liberty forthwith, if not required in any other case.
14. These are reasons of our short order of even date, which is reproduced below:- "For reasons to be recorded later, I allow this appeal, set aside the conviction and sentence of the appellant Ashraf Ali, recorded by learned Trial court/Additional Sessions Judge Lahor Swabi, vide impugned judgment dated 18.12.2012, in case FIR No.760 dated 01.07.2011, registered under section 324 PPC at Police Station Lahor, District Swabi and hereby acquit him of the charge in the aforementioned case. He be set at liberty forthwith, if not required in any other case".