' LAL JAN KHATTAK, J.---This jail criminal appeal has been filed by appellant Fazal Amin against the judgment dated 1-7-2003 of the learned Sessions Judge/Zilla Qazi, Malakand at Katkhela, whereby he was convicted and sentenced to imprisonment for life, with benefit under section 382-B, Cr.P.C.
In case F.I.R. No.28 dated 24-1-2002.
2. Breif facts of the case are that on 24-10-2002, on Gul Amin lodged a report with the local police of Police Station Kot, Malakand to the effect that he was proceeding with his brother Yar Meen to Kot Bazaar for shopping. When they reached near a natural nullah, there they found the appellant present duly armed with deadly weapon who on seeing them opened firing with which his brother Yar Meen was hit and died on the spot while he escaped unhurt. For the occurrence no motive was disclosed in the F.I.R.
3. After completion of the investigation case was put in the Court for trial where the appellant was indicted for the murder of deceased Yar Meen and also for ineffective firing at the complainant.
The appellant pleaded not guilty to the charge and claimed trial. Prosecution in order to substantiate its case produced and examined as many as four witnesses followed by the statement of accused under section 342, Cr.P.C., but neither he produced any evidence in his defense nor examined himself on oath. The learned trial Court after hearing the case found the appellant guilty and on conviction, sentenced him as mentioned above vide judgment dated 1-7- 2003.
4. It is worth to mention that the instant appeal has been filed by the appellant on 19-2-2011 through Superintendent Jail along with an application for condonation of delay. This Court vide order dated 7-11-2013 accepted the condonation application bearing No.Cr.M. 86-P - of 2011 and the delay in filing the appeal was condoned.
5. In this case, the only solitary account of the occurrence has been furnished by complainant Gui Amin, who appeared before the trial Court as P.W.2. This witness has deposed before the Court that he and the deceased were proceeding to Kot Bazaar for shopping when at 10-00 a.m. They reached at the crime spot there the appellant was present for flirting with the village girls who was refrained by the deceased from doing so on which he got infuriated and shot at him with which he was hit and died on the spot.
6. Complainant Gul Amin P.W.2, who is brother of the deceased is the only eye-witness of the occurrence. Though a conviction can be recorded on an accused on the strength of a singular eye version account but equally it is a century old principle of criminal jurisprudence that the evidence furnished by a sole eye-witness must be confidence inspiring, worth reliable and be appealable to a prudent mind. Such evidence must be corroborated by other circumstantial evidence. If any of the above elements is short then the testimony of a sole eye-witness cannot be made as a base for recording conviction.
7. In this case, post-occurrence attitude, behaviour and role of the complainant shows that he was not present on the spot at the time of occurrence. Firstly, because in the F.I.R. He disclosed no motive for the offence while in his Court statement he has come up with a motive for the murder of his brother that the deceased had refrained the appellant from making flirtation with the village girls. This introduction of motive is an improvement which should not go unnoticed. Had it been so and the complainant had been on the crime venue, then he must have disclosed the same to police in his F.I.R. Secondly, the complainant left the dead body of his brother on the spot and opted to go to Police Station for lodging the report. This attitude of the complainant indicates his non- presence on the spot and goes against the common values prevailing in our society where on happening such an incident first attempt and priority expected from a relative who happens to be on the spot is that he will take the injured/deceased to hospital to save his life. It is also our common values that whenever an occurrence is taken place, people present nearby the spot always come to the spot in order to provide helping hand to take the victim either to hospital, his house or to the police station as the case may be. In this case, neither the complainant took the victim to any hospital or to the police station nor he brought the dead body to his house. This behaviour of the complainant is sufficient to believe this Court to hold that he was not present on the spot when the occurrence had taken place.
8. It was not the prosecution's case that nearby the crime spot there was nobody to lend a helping hand to the complainant either to take the victim to the hospital or to the police station. Rather from the evidence of the complainant it is manifest that at the relevant time in the surrounding area, there were present peasants working in their fields. Had the complainant been present on the spot at the time of the occurrence, he could have shifted the victim with the help of his co-villagers either to hospital or to the police station. Failing in doing so, adverse inference which this Court will draw would be that the complainant at the relevant time was not present on the spot.
9. The afore-mentioned unbecoming attitude and behaviour of the complainant has given rise to a doubt about his presence on the spot at the time of occurrence, benefit of which must go to the appellant. The learned trial Court has not taken into account the case evidence in its true prospect, therefore, the sole testimony of the complainant cannot be relied upon for recording conviction of the appellant. For the above reasons and discussion, we accept the instant appeal, set aside the judgment dated 1-7-2003 and acquit the appellant of the charge levelled against him. He be released forthwith if not required to be detained in any other case.
10. Above are the reasons of our short order of even date.