' MAZHAR ALAM KHAN MIANKHEL, J.---Appellants Hunar Shah alias Anar Shah son of Mastan Shah and Yarmeen Shah son of Sahib Shah have questioned their conviction, in case F.I.R. No,14 dated 13- 2-2008 registered under sections 302/324/34, P.P.C. Police Station Saddar, Hangu, recorded by learned Additional Sessions Judge Hangu, vide his judgment dated 23-2-2011 whereby the appellants were convicted under section 302(b), P. P .C . For rigorous imprisonment for life as a 'Tazir' and a fine of Rs,1,00,000 each, in default of payment of fine, the appellants shall undergo simple imprisonment for two years. The appellants shall also pay Rs,1,50,000 each as compensation to the legal heirs of the deceased under section 544(A), Cr.P.C. And in default of payment thereof to suffer six months simple imprisonment. The appellants were also convicted under section 324, P.P.C. For ineffective firing at the complainant and were sentenced to one year rigorous imprisonment and shall pay a fine of Rs,5,000 each in default of payment of fine to undergo one month S.I. All the sentences were ordered to run concurrently. Benefit of section 382-B, Cr.P.C. Was extended to the appellants.
' The complainant Khanzad Gul son of Gulzaman has also filed Criminal Revision No, 30 of 2011 for enhancement of sentence from life imprisonment to that of death.
2. Through this single judgment, we intend to dispose of Criminal Appeal No,145 of 2011 "filed by the convict appellants as well as Criminal Revision No,30 of 2011 filed by the complainant/ petitioner for enhancement of sentence as both have arisen out of one and the same judgment of the trial Court dated 23-2-2011.
3. Brief facts of the prosecution case are that Khanzad Gul complainant reported the matter at 1930 hours to the local police on 13-2-2008 to the effect that he and his relative Mukhtiar Gul were going from their village Tora Wati to Pirano Darband in a Suzuki Pick-up bearing Registration No, 1940/STF driven by Gul Marjan. When they reached Balyamina Levy Picket at 16:30 hours, a Pick-up having Registration No, 5016/Bannu-C ran into the side of their Suzuki Pick-up. Inayat Shah son of Gul Ain Shah, Yarmin Shah son of Sahib Shah and Anar Shah son of Mastan Shah all duly armed with Kalashnikovs alighted from the Pick-up and started firing at them. Resultantly Mukhtiar Gul received fire-arm injuries and died at the spot while Khanzad Gul and driver Gulmar Jan escaped unhurt. After completion of investigation and submission of Challan, Yarmin Shah and Hunar Shah alias Anar Shah, the two appellants, were sent to the Court of Additional Sessions Judge, Hangu for trial. On conclusion of trial and after hearing learned counsel for the parties, the appellants were convicted and sentenced as enumerated in the opening para of the judgment.
4. Learned counsel for the appellants argued that the impugned judgment of the trial Court dated 23-2-2011 is against the law, facts and material available on record; that there is inordinate delay in lodging the F.I.R with no plausible explanation; that it is an unseen occurrence and the presence of complainant (P.W.4) at the spot has not been established; that the only independent eye-witness Gul Marjan, the driver of the Suzuki Pick-up, was abandoned; that the medical evidence and the ocular account of the occurrence given by the complainant are in conflict with each other; that the impugned judgment is based on surmises and conjectures; that the judgment of the trial Court is the result of misreading and non-reading of evidence; that the entire evidence of the prosecution is full of doubts which cannot be relied upon. Concluding his arguments, learned counsel for the appellants prayed that on acceptance of this appeal, the impugned judgment of the learned Additional Sessions Judge, Hangu dated 23-2-2011 may be set aside and the appellants be acquitted of the charges levelled against them. In support of his submissions, the learned counsel for the appellants placed reliance on the cases of Lal Khan v. The State (2006 SCMR 1846); Muhammad Rafique and others v. The State and others (2010 SCMR 385); (PLD 2011 Supreme Court 554); Sajjad Hussain v. The State (PLD 1996 Lahore 286); Muhammad Akram v. The State (2009 SCMR 230); Muhammad Sharif v. The State (1980 SCMR 231), Lajbar Khan v. The State (2012 MLD 152); Tahir Khan v: The State (2011 SCMR 646) and Khadim Hussain v. The State (2010 SCMR 1090).
5. As against that, learned counsel for the complainant, vehemently contended that the accused were directly charged with a specific role of firing to all the ,three accused who with their common intention committed qatl-i-amd of deceased and attempted at the lives of complainant and the P.W. Gulmar Jan; that the conduct and role of the appellant alone is sufficient for awarding normal sentence of death and requested that the judgment dated 23-2-2011 of the trial Court to the extent of conviction may be maintained but their sentence of life imprisonment under section 302, P.P.C.
May be enhanced to the normal penalty of death. In support of his submissions, the learned counsel for the complainant placed reliance on the cases of Muhammad Hayat v. Abdus Salam and another (2001 PCr.LJ 557); Sahib Khan v. The State (2008 SCMR 1049); Mukhtar Ahmad v. The State (2004 SCMR 220); Saeed and 2 others v. The State (2003 SCMR 947); Noor zaman v. The State (2005 PCr.LJ 2016); Sharafat Ali v. The State (1999 SCMR 329); Noor Muhammad v. The State and another (2005 SCMR 1958).
6. Learned`counsel for the State while endorsing the arguments of the learned counsel for the complainant argued that the prosecution has proved its case against the appellants beyond any shadow of doubt and urged the Court that the sentence of life imprisonment may be converted into that of death.
7. Arguments of learned counsel for the appellants, learned counsel for the complainant and learned A.A.G. For the State were heard and record of the case was perused with their, valuable assistance.
8. Perusal of the record would reveal that the prosecution to prove its case against the convict/appellants, produced six witnesses. P.W.1 Tahir Nawaz A.S.-I. Is the person who incorporated the contents of 'Murasila' into an F.I.R. Exh.P.W.1/1 whereas P.W.2 Muhammad Ashraf Inspector S.H.O.
Recoded the report in the shape of 'Murasila' Exh.P.W.2/1 and Khalil-ur-Rehman P.W.'3 identified the dead body of the "deceased Mukhtiar Gul. The complainant being an eye-witness of the occurrence appeared as P.W.4. As per his statement, he shifted the dead body of the deceased to the Hospital after the occurrence. He also admitted that the deceased was charged for the murder of one Rauf in case F.I.R. No 380 dated 2-8-1997 Police Station Hangu and complainant of that case was the brother of Inayat Shah, the co-accused in this case. The deceased was an absconder in that case besides in case F.I.R. No, 190 dated 29-9-2007 registered under section 506/34 P.P.C. The I.O. Of the case namely Naqibullah S.-I. Appeared as P.W.5. He in his cross-examination had said that the accused had given application for inquiry in which many people recoded their statements regarding innocence of accused. The last witness P.W.6 of the prosecution was Dr. Zia-ulHassan who conducted autopsy of the dead body. It would be necessary to mention here that the only independent and natural eye-witness of the occurrence, Gul Marjan, the driver of the Suzuki Pick- up was abandoned by prosecution but the defence through I.O. Brought on record his state-ment recorded by him under section 161, Cr.P.C. As Exh.P.W.5/5. The accused besides their statement under section 342, Cr.P.C., also produced two defence . Witnesses who reiterated the stance of the appellants regarding their plea of alibi that they along with the accused facing trial, the appellants, remained present in a Jirga from. 11-00 a.m. To 6:00 p.m. But the accused did not record their statements under section 340(2) of Cr.P.C. To disprove charges levelled against them and to strengthen their plea of alibi. We were also informed that the other co-accused Inayat Shah had patched up the matter and had paid diyat amount to the L.Rs, of the deceased and a statement of elders in this regard is also available on the record. This factum of compromise was not denied by the complainant party.
9. Since the other independent eyewitness of the occurrence, Gul Marjan was abandoned so, we are left with the testimony of only one eye-witness, the complainant, who being relative of the deceased and having direct motive against the accused party, his testimony would require very careful scrutiny as he, in the circumstances, appears to be an interested witness.
10. Perusal of the record would reveal that the case of the prosecution hinges upon the ocular account furnished by the complainant and the other circumstantial evidence in the shape of recovery of 7 empties of 7.62 bore P.1, blood-stained earth P.2 and blood-stained clothes of the deceased .P.3 and P.4 the two damaged vehicles and the postmortem report. He, as per his version in the F.I.R. And statement in the Court as P.W.4, was along with the deceased in the Suzuki Pick-up bearing No, STF-1940 driven by Gulmar Jan son of Janan when they were attacked by the present two appellants and their co-accused Inayat Shah with their Kalashnikovs. The deceased on receiving the fire-arm injuries inside the Suzuki Pick-up, succumbed to his injuries at the spot whereas he, the complainant and the driver Gulmar Jan escaped unhurt. Exh.P.W.5/1, the site plan prepared at the instance of complainant, P.W.4, would reveal that the complainant was shown at point No,1 at a distance of 13 paces on north east side of the Suzuki Pickup and the accused party.
Driver, of the Suzuki was not shown in the site plan. Driver, in the circumstances, was the only independent eye-witness of the occurrence' who could have provided the true and correct version of the occurrence as to what actually happened at the spot and who were the assailants and how and in what manner the occurrence took place. But the prosecution failed to produce this important independent eye-witness. His non-production as a witness is such a big dent in the prosecution story which cannot be made up by the statement of complainant P.W.4 or the other available circumstantial evidence. His non-production would lead to the presumption that had he been produced he might have told the truth which would not have been favourable to the prosecution. Reliance in this regard can be placed on the case of Lal Khan v. The State (2006 SCMR 1846), The State and others v. Abdul Khaliq and others (PLO 2011 Supreme Court 554), Muhammad Rafique and others v. The State and others (2010 SCMR 385).
11. Now comes the testimony of eyewitness, P.W.4 the complainant, who claims to have seen the occurrence. He is nit only the relative of the deceased party but has also motive against the accused party as there is yet another copy of the F.I.R. No, 705 dated 19-10-2001, though it was never referred to in evidence 'but copy of the same is available on the judicial file and the Court can take judicial notice of the same, wherein Yarmeen Shah one of the present appellants charged one Gul Zaman father of present complainant Khanzad Gul P.W.4 along with others for the murder of his brother Yaqeen Shah. Such a situation would make it clear that the complainant is an interested witness. Statement of such a witness would require a careful perusal. He in his statement has said that he shifted the dead body of the deceased to the hospital and on arrival of the police he lodged the report but the doctor in his statement has categorically said that the dead body of the deceased was brought by the local police of Police Station Saddar Hangu. Though the distance between the place of occurrence and the hospital has not been given but even then unexplained delay of three hours in lodging the report by the complainant in the hospital makes the presence of complainant at the spot doubtful when the dead body is brought by the local police. This unexplained delay would lead to a presumption that the complainant was not present at the time of occurrence and the F.I.R. Was lodged after due deliberation and consultation. The doctor during his cross-examination has given the probable time between death and postmortem examination as 4 to 8 hours and thereby has opined that the probable time of occurrence as per his opinion might be from 10:30 a.m. To 02:30 p.m. When the postmortem report of the doctor is kept in mind then the probable time of occurrence as stated by the doctor can't be ruled out. This very aspect makes the testimony of the complainant highly doubtful. This delay of 4 to 8 hours between death and postmortem of the dead body goes unexplained as to why the postmortem was so delayed.
This aspect totally belies the case of prosecution. Besides, the complainant has been shown at point No,1 on north-east of the accused party and visible to the assailants, then how such a person is spared by them, when previous enmity between the parties is there. Yet another important aspect of the case that as per postmortem report, Exh.P.W.6/1, body was brought to the hospital at 6.30 p.m. By the police and report of the occurrence was made at 1930 hours i,e, at 7.30 p.m. It means that postmortem was conducted prior to report. The column of identification of the dead body in the postmortem report is also blank. The entire above referred facts would make it clear that the occurrence has not taken place in the manner and mode as alleged by the complainant.
The story so appearing on the surface of the record becomes unbelievable. It was for the prosecution to prove its case without any shadow of doubt by producing trustworthy and convincing evidence. The complainant alleges to have seen the occurrence but the evidence so referred would reveal that the complainant himself was not present at the spot and he being an interested, witness can't be believed with such infirmities in the evidence. The involvement of the appellants for the commission of offence becomes doubtful and benefit of such doubt certainly will go to the appellants. What can be gathered from the above noted facts is that the police on receipt of information reached the spot, took the dead body to the hospital and then on the arrival of complainant, a fake and fictitious story was concocted, that too, on the basis of motive of blood feud enmity between the parties. Though the complainant hasn't referred to the motive but the S.H.O. In his report has D referred to the previous enmities by placing on record the previous F.I.Rs, One of the F.I.R. No,380, dated 2-8-1997 would reveal that the deceased was charged for the murder of one Rauf and the complainant of that F.I.R. Gul Mat Shah was the brother of accused Inayat Shah. The deceased in both the F.I.Rs, was absconder. All the F.I.Rs, have not been denied by the complainant. Though the said F.I.Rs, haven't been exhibited but the Court can take judicial notice of the material available on the record. The motive is normally a reason for a murder but it could as well be a reason for false implication of an innocent person. Here in the circumstances of the case, motive could be the reason for false implication of accused as the prosecution has badly failed to prove case against the appellant and the complainant party has a cause for false implication and that's why, the motive is normally called as double edged weapon. Reliance in this regard can also be placed on Allah Bakhsh and another v. The State (PLD 1978 SC 171) and AU Raza v. Fazal Wahid (PLD 2004 Peshawar 20); Tahir Khan v. The State (2011 SCMR 646).
12. The complainant charged three persons armed with their respective Kalashnikov rifles by attributing similar general role of firing at the deceased and none of the accused was given specific role in the commission of offence. The spot inspection would reveal that the investigating officer took into possession seven empties of 7.62 bore P.1 from the spot vide recovery memo Exh.P.W.4/1 but said empties were never sent to the expert to ascertain the fact whether these were fired from more than one firearm. The possibility of one man's doing with a weapon like Kalashnikov rifle can't be ruled out, as, such number of injuries can be caused by one person in one-go with a Kalashnikov in hand.
13. The driver of Suzuki Pick-up namely, Gul Marjan wasn't produced as witness but his statement under section 161 of the Cr.P.C. Was exhibited by the defence as Exh.P.W.5/5. Though the statement recorded under section 161, Cr.P.C. Is not a substantive piece of evidence and cannot be used by the prosecution for any purpose but it is meant only for confronting a witness and thus can be used by the defence for the purpose of corroboration or contradicting a witness. Since this statement was exhibited by the defence, so it can simply be looked into by the Court to draw an inference. Perusal of which also creates a serious doubt into the nature and mode of commission of offence. The inference regarding non-production of this important independent witness would go against the prosecution that had he been produced his statement wouldn't have been favourable to prosecution. It would also reflect that prosecution wanted to suppress material evidence.
14. Now comes the plea of alibi. Both the appellants have raised the plea of alibi that on the day of occurrence, they were present in a Jirga but they failed to appear J as their own witness under section 340(2), of Cr.P.C. To prove and establish their stance instead. They produced two witnesses in defence. Their statements, if seen, would appear to be deficient on many counts. What was the time and duration of that Jirga, what for that Jirga was convened, what was the distance in between the place of Jirga and the place of occurrence. Besides, the appellants also failed to appear as a witness under section 340(2) of Cr.P.C. To further strengthen the plea of alibi. So, in this view of the matter, we can't believe such scanty evidence in rebuttal in a murder case but at the same time benefit of doubt arising out of the prosecution evidence cannot be refused to the accused and the accused can be acquitted of the charges levelled against him if he succeeds in creating even a single doubt in prosecution evidence. Reliance in this regard can be placed on State through Advocate General N. W. F. P., Peshawar v. Mumtaz alias Taj Muhammad (2002 PCr.LJ 264), Ashiq Hussain v. The State (1993 SCMR 417) and Hakim. Ali and others v. The State (1971 SCMR 432).
15. When the ocular account put forth by the prosecution is full of doubts and is disbelived, then circumstantial evidence like recoveries of empties only without the weapon of offence, bloodstained earth and clothing of the deceased also supported by medical evidence would be of no help to the prosecution to convict a person for an offence like a murder.
16. In view of the above discussion, we can't concur with the findings of the learned trial Court. So, we by allowing the appeal against conviction, set aside the conviction and sentence, recorded by the learned trial Court and the appellants be set free forthwith, if not required in any other case.
17. These were the reasons for our short order of even date.