' ABDUL LATIF KHAN, J.---Iqbal Zada has filed instant criminal appeal against the judgment and order dated 5-8-2011 passed by learned Additional sessions Judge/Izafi Zilla Qazi, Dir Lower at Timergara, whereby he was convicted and sentence under section 302(b), P.P.C. To imprisonment for life along with a fine of Rs 5,00,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of deceased and further directed that till the payment of diyat' amount, the appellant will be kept in Jail.
2. According to story of prosecution Umar Bacha, the complainant, lodged a report on 22-10-2010 at Civil Hospital, Timergra, that he along with Mati Ullah and Nasrullah were travelling in vehicle 'Diana' of Khalid, when reached link road shekolai, Khalid stopped his vehicle and said that he had to meet with his relative and, as such, they got down from the vehicle, in the meanwhile, at 8.30 hours a 2-D motor car came from which two young men duly armed with pistol, deboarded, whom he could identify by face, started calling names to Khalid and Mati Ullah intercepted them not to abuse each other, on which both the accused made fire at Mati Ullah with which he was hit on his left jaw. They also made fire at Khalid as a result of which he was also hit on his right side chest and died on the spot. The accused after commission of offence decamped from the spot. In the meanwhile, sufficient people of village shekolay came and with their help the dead body of deceased and injured were shifted to hospital. The occurrence was allegedly ,witnessed by Nasrullah besides him. The report of complainant was reduced into writing in shape of Murasilla Exh.PA/1 which was culminated into F.I.R.
3. Later on, injured Mati Ullah also died on the way at Chakdara while he was shifting to Lady Reading Hospital, Peshawar. P.W.11 Gul Zamin, after registration of case, proceeded to spot and prepared the site plan Exh.PB at the pointation of eye-witnesses. He during spot inspection recovered blood-stained stones/pebbles etc. From the places of deceased and also an empty of .30 bore and a live round of .30 bore from the spot and took the same vide recovery. On 26-10-2010 at the pointation of complainant Umar Bacha and P.W. Nasrullah accused-appellant Iqbal Zada was arrested. Complainant and Nasrullah also charged the appellant along with his other co- accused in their statements under section 164, Cr.P.C. The Investigating Officer had also shown recovery of .30 bore pistol as weapon of offence from the shop of appellant. After completion of investigation, complete challan in the case was submitted against the appellant for trial along with his absconding co-accused Ghulam alias Bacha under section 512, Cr.P.C.
4. Learned trial Court after complying with the legal formalities under section 265-C, Cr.P.C., framed charge against the appellant to which he pleaded not guilty and claimed trial. Prosecution in order to prove its case produced thirteen witnesses. After closure of prosecution evidence, statement of appellant was recorded under section 342, Cr.P.C. In which he claimed innocence and false implication, however, he was neither ready to be examined on oath under section 340(2), Cr.P.C.
Nor wished to produce defence. Learned trial Court after hearing the parties, convicted and sentenced the convict-appellant as stated above, vide the impugned judgment, hence, the present appeal. Similarly, complainant also filed Criminal Revision No.16 of 2011 for enhancement of sentence. Since, both the appeal and revision have been filed against single judgment, therefore, we propose to dispose of the same through this single judgment.
5. Learned counsel for the appellant contended that the alleged occurrence took place at 8.30 hours while the report was made at 9.10 hours against unknown accused. It was contended that neither specific role has been attributed to any of the accused nor the F.I.R. Contains the features of the accused. It was added that the site plan negates the versions of F.I.R. As the recovery of an empty and a live round was made from other side opposite to the story as narrated by the prosecution. It was contended that there was no charring marks despite of the fact that the firing was allegedly made from a distance of one pace. It was added that the recovery made from the spot is also not in line with the prosecution story. It was further contended that Nasrullah, though, has been cited as an eye-witness but his presence on the crime venue has not been established. It was added that the vehicle "Daina" was not taken into possession and as per version of appellant the occurrence took place inside the said vehicle but no blood was recovered from inside the vehicle. It was added that statements of two witnesses recorded under section 161, Cr.P.C., which are posted as Exh.D.W. 11/D-1 and Exh.D.W.1/D-2, but they were not examined for the reasons known best to the prosecution. It was contended that Umar Bacha could have identified the witnesses, who were not produced and their statements were recorded under section 161, Cr.P.C. It was added that Dr. Riaz has been produced by the prosecution whereas Post-mortem has been conducted by Dr. Shahid Alam, who has not been produced. It is further added that the time of occurrence and time of examination of the deceased by the doctor does not coincide, which is fatal to the prosecution case. It was contended that evidence is also contradictory to the effect that whether locals had attracted to the site of occurrence or not. It is added that the statements of Nasrullah is also contradictory to the prosecution story as narrated by the complainant Umar Bad shah and there are contradictions about the mode and manner of occurrence as alleged by the prosecution.
It is added that the recovery of pistol is also doubtful as the question of recovery of .30 bore or .32 bore has not been explained by the prosecution, which is contradiction of grave nature, goes to the root of the case. It is argued that the prosecution evidence is contradictory to the extent of number of fire shots made at the time of occurrence and even the death of Khalid and Mati Ullah have not been explained by the prosecution as to whether it took place on the spot or otherwise. It is vehemently contended that the Investigating Officer has taken the instant matter as a special case and was bent upon to involve the accused-appellant by all means and have got exhibited the daily diaries in his statements, marked as Exh.P.W.11/21, 11/27, 11/31 to Exh.P.W.11/34, Exh.P.W.1l/42 to 45 and Exh.P.W.11/50 to Exh.P.W.11/53, which is other than normal course in criminal cases. It is contended that the identification of the accused was doubtful and the witnesses were planted by the prosecution.
6. As against that, learned AAG assisted by learned counsel for the complainant contended that the prosecution has given a natural story in the mode and manner which does stand to reason. It was argued that the F.I.R. Is meant to set the law into motion and all details are not necessary to mention in it. It is contended that the complainant Umar Bacha and Nasruallah, the eye-witnesses, have no relation with the deceased nor they are in inimical terms with the accused, therefore, implication of the accused by disinterested persons is natural and there is no possibility of false implication. It was vehemently contended that there is no fatal contradictions in the evidence produced by the prosecution and minor discrepancies cannot be based for acquittal of the accused. It was contended that the taxing and searching cross-examination has been made but the prosecution evidence cannot be shattered. The recovery of pistol has been made from the accused and the empties from the site plan is also in line with the prosecution story. It was added that the medical evidence is also not contradictory to the ocular account and trial Court has rightly appreciated the evidence available on file. It was contended that the complainant has also filed a criminal revision for enhancement of sentence in the light of available evidence, therefore, argued that quantum of sentence has to be enhanced in accordance with law.
7. The appellant Iqbal Zada along with absconding co-accused Ghulam alias Bacha was booked in case F.I.R. No. 1186 dated 22-10-2010, under section 302/34, P.P.C., registered at Police station, Timargara, Dir Lower, on the report of complainant Umar Bacha, on the charges that they on 22-10- 2010 at 8.30 hours, in furtherance of their common intention, committed the murder of Khalid and Mati Ullah by firing at them. Admittedly, no role has been assigned to the appellant nor he is charged by name in the F.I.R. As reveals from its contents and even the features of the appellant has not been given in the F.I.R. The presence of eye-witnesses on the spot, identification of the appellant and his arrest in Raul Market has not been justified as the prosecution evidence to this effect is not confidence-inspiring. Complainant Umar Bacha and Nasruallah, the alleged eyewitness, were examined as P.W.6 and P.W.7 before the trial Court. In their statements, there are not only contradictions but dishonest improvements. The convict-appellant is alleged to have been arrested on 26-10-2010 but no identification parade was carried out in spite of the fact that report was lodged against unknown culprits and in such eventuality identification test was very much necessary in order to check the false implication of the appellant, in view of the facts and circumstances of the case, as such, the identity and involvement of the convict-appellant in the commission of offence is doubtful. P.W.6 and P.W.7 made efforts to strengthen the prosecution case, when appeared before the Trial Court by deposing that on 26-10-2010 they were present in Timergara when a motor car came boarded by Iqbal Zada crossed them, and they informed the police, who arrested the appellant at their instance near Raul Market when he was talking on cell phone to someone in his can but .This fact has not been mentioned in their statements recorded under section 164, Cr.P.C. On 27-10-2010, after one day of the arrest of the convict-appellant. Had they been present at the time of arrest of the appellant or at their pointation the appellant was arrested, they could have mentioned this fact in their statements. Though, they made certain exaggeration with regard to the role of the accused in their statements recorded under section 164, Cr.P.C., but have not uttered a single word regarding the arrest of appellant either in the company of police or at their pointatoin, therefore, the episode narrated by the prosecution regarding arrest of the accused and identification through the eye-witnesses does not stand to reason and whole story of prosecution hinges upon the identification and arrest of the accused has crumbled down.
In the F.I.R. No specific role has been assigned to the appellant while in court statements they made improvement and stated that Matiullah was hit from the firing of absconding accused while Khalid was hit from the firing of appellant. The contents of F.I.R., statement of the complainant and P.W.
Nasrullah are silent about altercation, if any, and exchange of hot words in between the accused and deceased, however, in their court statements they stated that accused and deceased Khalid were abusing each others, whereas Mati Ullah deceased was restraining them from abusing each other acid, thereafter, the occurrence took place. The said improvement had badly shaken the veracity of both the alleged eye-witnesses. It is settled law that when a witness made improvement to strengthen the prosecution case, if found to be deliberate and dishonest, would seriously damage his veracity and no reliance can be placed on the testimony of such a witness.
Reliance is placed on case Farman Ahmad v. Muhammad Inayat (2007 sCMR 1825).
8. Quite apart from this, there are also contradictions in the statements of P.Ws. Complainant stated that two fire shots were made at the time of occurrence while Nasrullah, P.W.7, stated that three fire shots were made on the spot. Gul Zameen sI, who has recorded the report of complainant and conducted investigation in case, when appeared as P. W.11, stated that he besides the thumb- impression of complainant Umar Bacha also obtained thumb-impression of Nasrullah P.W. On the report. He further stated that Nasrullah was present in the hospital till shifting of dead body of Khalid from the hospital and P.W.7 Nasrullah stated that after the occurrence, he due to fear left the spot and did not go to police station for report. Medical report is also contradictory to the contents of F.I.R. And statements of alleged eyewitnesses. According to contents of F.I.R. And statements of P.Ws., Khalid Khan died on the spot after receipt of injury while Dr. Riaz P.W.13. Stated that at the time of arrival to hospital, deceased Khalid was alive and he died in hospital at 9-35 a.m. Whereas Gul Zameen sI, P.W.11, stated that' he recorded report of complainant at 9-1Q a.m and after recording report of complainant he prepared the inquest report of the deceased and, thereafter, handed over his dead body to the Medical Officer for Postmortem examination. The postmortem report Exh.P.W.13/1 reveals that Khalid was brought to the hospital by police and his relatives, namely, shair and Bacha sher and Mati Ullah was brought by police and his relatives, Waris Khan and Nadir Khan while complainant stated that he had taken the injured and deceased Khalid to the hospital in the company of one driver and an unknown person belonged to village shakolai, which further makes the story of prosecution doubtful regarding presence of P.Ws. At the relevant time and making report about the occurrence. The evidence available on record shows that the occurrence has not taken place in the mode and manner as narrated by the prosecution as presence of eye- witnesses on the spot at the time of occurrence, identification of convict-appellant and his arrest at Rauf Market, Timergara, is highly doubtful. It is fundamental principle of criminal jurisprudence that to disbelieve a witness, it is not necessary that there should be numerous infirmities. If there is one which impeaches the credibility of the witness, that may make the entire statement doubtful.
The contention that complainant and the other eye-witness were having no enmity with the accused nor any relationship with the deceased is not convincing one because want of enmity or interest is not the sole criteria for acceptance of testimony of a witness and the real test of the veracity of a witness is the inherent merit of his own, statement. It is well recognized principle of appreciation of evidence that a statement of witness must be in consonance with the probabilities fitting in the circumstances of the case and also inspire confidence in the mind of a reasonable prudent man. If these elements are present, then the statement of the worst enemy of an accused may be accepted and relied upon without corroboration, but if these elements are missing, then statement of a pious man may be rejected without second thought. Reliance is placed on the cases Muhammad saleem v. The state (2010 sCMR 374) Haroon alias Harooni v. The state and another (1995 sCMR 1627) and Muhammad Arshad alias Achhi v. The state (1995 sCMR 1639).
9. Another vital aspect of the matter which badly damaged the case of prosecution is the witnesses, namely, Khan Rahim and Jamil Ahmad, whose statements were recorded under section 161, Cr.P.C. And marked as Exh.D.W.11/D-1 and Exh.P.W.1/D-2, have been abandoned by the prosecution and, thus, best evidence available with the prosecution has been withheld and adverse inference can be drawn against the prosecution. Though, there is positive report of FSL and the empty of .30 bore allegedly recovered from the spot was found to have been fired from a .30 bore pistol, alleged to have been recovered at the instance of appellant but the same is of no help to prosecution because the alleged empty had been recovered on 22-10-2010, the appellant was allegedly arrested on 26-10-2010, and the .30 bore pistol was recovered on 29-10-2010 while the same were received by FSL on 8-11-2010. No plausible explanation has been advanced for such delay; therefore, the same has no evidentiary value and cannot be used against the appellant.
10. The story of prosecution is highly doubtful and as it is celebrated principle of criminal law that any doubt arising in the prosecution case must be resolved in favour of the accused. The evidence available on record is not of such a character which could be relied upon to convict a person on capital charge. As the prosecution has failed to prove the guilt against the appellant beyond any shadow of doubt, therefore, his conviction cannot be maintained.
' The gist of the above discussion is that the prosecution has failed to prove its case against appellant beyond shadow of reasonable doubt; therefore, while extending the benefit of doubt, we allow the appeal filed by the appellant-convict by setting aside his conviction and sentences recorded by the trial Court and acquit him of the charges levelled against him. The convict- appellant, namely, Iqbal Zada is in custody and he be set free forthwith, if not required in any other case. Criminal Revision No.16 of 2011 filed by the complainant for enhancement of sentence being without substance stand dismissed.
' These are the reasons of our short order of even date.