' ASSADULLAH KHAN CHAMMKANI, J.---Appellant Jehad Ali son of Shafaras Khan has filed instant appeal under section 410, Cr.P.C. Against the judgment and order of learned Sessions Judge, Swabi, dated 8-2-2011, whereby he convicted and sentence the appellant to imprisonment for life under section 302(b), P.P.C. Along with a fine of Rs. Three lac under section 544-A, Cr.P.C. Or in default to undergo imprisonment for six months' S.1. Benefit of section 382-B, Cr.P.C. Was extended to the appellant.
2. According to prosecution story, Riaz Ali complainant lodged a report that he along with his maternal uncle, Noor ul Basar, on 25-6-2005 had gone to the house of his sister Mst. Shagufata, when at 08.00 hours, Jehad Ali son of Shafaras Khan came to the house from outside and told her that he intends to take minor Yaseen to the field to which she refused, on which altercation started between them. Jehad Ali took out his "Tamancha" from trouser-fold and started firing at Shdgufata as a result she was hit and died on the spot, as such, case F.I.R. No 506 was registered at Police Station Kalu Khan on 25-6-2005.
3. The dead body of deceased was referred to Civil Hospital, Kalu Khan, where Dr. Farkhanda, the Women Medical Officer, conducted autopsy on the dead body of deceased and found the following:-- ' External examination.
' A young woman of healthy physique wearing brown and yellow printed shalwar qamees.
' Wounds.
(1) Firearm entry wound lx1 c.m 5 c.m above the lateral angle of the right eye on the head fracturing the bone and brain matter coming out of it and with tattooing on the right side forehead, eye and cheek.
(2) Firearm exit wound 1 x 2 cm, 6 cm from the entry wound horizontally on the right side of the head fracturing bone and brain matter comes out of it.
(3) An abrasion of about 3x 3 c.m rounded just lateral to the lateral angle of left eye.
' Internal examination.
' Cranium and spinal cord.
' Scalp, skull fractured, membranes and brain injured. Abdomen: ' Organs of generation external and internal healthy, uterus was having 18 weeks pregnancy.
' Muscles, bones, joints.
' Skull bone fractured.
' Remarks.
' In her opinion-the cause of death was firearm injury to the brain.
' Duration between injury and death: instantaneous.
' Between death and post mortem; within four hours.
4. Investigation of the case was entrusted to Muhammad Khan SI, who visited the spot and prepared the site plan Exh.B, recovered blood stained earth from the spot vide memo Exh.P.W.12/2.
He also took into possession . Blood-stained garments of the deceased vide memo Exh.P.W.11/1.
Since accused Jehad Ali was avoiding his lawful arrest, therefore, warrant under section 204; Cr.P.C.
And proclamation notices under section 87, Cr.P.C. Were issued against him. After completion of investigation, he submitted complete challan in the case. Later on, the convict-appellant was arrested and supplementary challan against him was submitted before the trial Court.
5. Learned trial Court after complying with the legal formalities under section 265-C, Cr.P.C, framed the formal charge against the appellant, who did not plead guilty and claimed trial. Prosecution in order to prove its case produced twelve witnesses. After close of prosecution evidence, statement of appellant under section 342, Cr.P.C. Was recorded in which he claimed innocence and false implication. He in his statement stated that, in fact, his younger brother Liaqat Ali was playing with pistol in the meanwhile it went off as a result the deceased was hit and died on the spot. The appellant was not ready to record his statement on oath under section 340(2), Cr.P.C, however, in defence he produced Mst. Nusrat as D.W.1. Learned trial Court after hearing the parties, convicted and sentenced the convict-appellant as stated above, vide the impugned judgment, hence, the present appeal.
6. Learned counsel for the appellant, inter alia, argued that it is an unseen occurrence and the appellant has been charged on the basis of suspicion. He submitted that complainant (P.W.9) and Noor Ul Basar (P.W.10), the alleged eye-witnesses, are not only related to the deceased but they are also inimical towards the appellant, therefore, their'evidence requires strong independent corroboration. He next submitted that presence of P.W.9 and P.W.10 in the house of deceased was highly doubtful as no purpose of their coming to the house of deceased has been shown by them and that they also made dishonest improvements in their statements. While elaborating his arguments, he submitted that both the P.Ws. Have not seen the occurrence and they have been procured subsequently as eye-witnesses being close relative and that the F.I.R. Has been lodged with consultation and due deliberation after conducting preliminary investigation, therefore, no reliance can be placed on their testimony which is also incompatible with the medical evidence.
He submitted that the prosecution has miserably failed to prove its case against the appellant- convict beyond any shadow of doubt and the learned trial Court has wrongly and mistakenly assessed the evidence on record and passed the impugned judgment of conviction without any cogent reasons, therefore, the same is liable to be set aside and the appellant be acquitted of the charge.
7. Learned AAG appearing on behalf of the State and counsel for complainant controverted the contentions of the learned counsel for the appellant and argued that the appellant-convict is directly charged for the killing of an innocent lady, which is fully supported by the testimony of the eye-witnesses, blood-stained garments of deceased, blood stained earth, FSL report, recovery of pistol as weapon of offence, abscondance and medical evidence. He further argued that P.W.9 and P.W.10 are natural witnesses as their houses are situated at some distance from the house of deceased. They submitted that the prosecution proved its case against the appellant, therefore, the appeal is liable to be dismissed.
8. Having heard the arguments of learned counsel for parties and considering the evidence available on record, we are of the view that the case of the prosecution is doubtful and the evidence available on record is, in no way, sufficient to lead to a conclusion that the appellant be convicted of the offence entailing capital punishment. The main arguments of learned defence counsel is that the alleged eye-witnesses, namely, Riaz Ali and Noor ul Basar were not present at the time and place of the occurrence; therefore, their evidence cannot be relied upon as they are set up witnesses. This argument of learned defence counsel has force because it has come in cross-examination of the complainant that he is shopkeeper by profession and his shop is located in his village at a walking distance of 20/25 minutes from the spot. He further admitted that there was no special occasion on that day in the house of his sister and they had gone there only for inquiring about her. Noor ul A Basar, P.W.10, the other alleged eye-witness, stated that before the death of the deceased, he had not gone to her house. He further stated that he had gone to the house of Shagufta when she was being married prior to the present occurrence. From the cross- examinations of the P.Ws., it is established that their visit to the house of deceased at the relevant time is doubtful as there was no special occasion in the house of the deceased and P.W.10 admitted in his cross-examination that he had visited the house of deceased once on the occasion of her marriage and for the second time on the eventful day, therefore, the P.Ws. Failed to explain their presence in the house of deceased exactly at the time of occurrence in a satisfactory manner.
9. The story of presence of above P.Ws. On the spot is further unbelievable because P.W.9 is brother while P.W.10 is maternal uncle of deceased. Had they present on the spot, naturally, they could have made effort to catch hold the accused as they could over powered the accused or even they could have chased him but they could not made any efforts, B therefore, the conduct of both the P.Ws.
Was unnatural. It is settled law that a single reason would be sufficient to discard a statement of a witness if it creates doubt in a reasonable mind regarding his presence at the spot.
10. There is also dishonest improvement in the statement of P.W.10 which lessens the evidentiary value of his statement. He stated in his cross examination that he has stated in his police statement about going to the shop of Riaz Ali who asked him to accompany him to the house of the deceased to visit her (confronted omitted). He stated that he has stated in his police statement that at the relevant time deceased Shagufata and another lady were present. (Confronted not so recorded). He further stated in his police statement that they were empty-handed (confronted omitted). He deposed that he stated in his police statement that after occurrence people gathered, deceased was put on a cot, taken to vehicle and then to the Police Station (confronted omitted). The rule for safe administration of justice is that improvement made by eye-witness in order to strengthen the prosecution case, lose his credibility and evidentiary value and when a witness made improvement changing his version in order to in line his testimony with the prosecution story, if found to be deliberate and dishonest, would cause serious doubt on his veracity, Reliance is placed on the case Farman Ahmed v. Muhammad Inayat and others reported (2007 SCM R 1825), wherein it has been held that improvements once found to be deliberate and dishonest would cast serious doubts on veracity of such witness. In the present case, the alleged eye-witness P. W.10 has made deliberate and dishonest improvements in his statement to strengthen the prosecution case; therefore, his statement loses its credibility and evidentiary value.
11. According to contents of F.I.R., the accused made firing at the deceased due to which she was hit and died on the spot and both the P.Ws. Also stated in their statements that the accused made two fire shots, but, astonishingly, no empty has been recovered from the spot, which further makes the prosecution case doubtful. The conduct of Investigating Officer was also not above-board because complainant admitted in his statement that in the house of deceased there were her father in law Shafaras Khan, her husband Amjad, her two brothers-in-law and two sisters of the accused but during investigation, he has not made efforts to record their statements being inmates of the house in order to trace out the real facts of the case.
12. Another damaging aspect of the case is that both the alleged eyewitnesses stated in their statements that, after the occurrence, people of the locality gathered and with their help they shifted the dead body of deceased to the Police Station, but prosecution failed to produce any pne from those persons to lend corroboration to the prosecution story. It is a case of murder in which death or life imprisonment can be awarded. In such like cases, the prosecution is always bound to corroborate through some independent sources- which is totally lacking in the instant case except the statements of two alleged eye-witnesses who are admittedly closely related to the deceased and having strained relations with the appellant family. It is settled principle of law that if a best piece of evidence available with a party is withheld, then it is presumed that the said party has some sinister motive behind, for withholding the same piece of evidence.
True that substitution of innocent person when a single accused is charged in a murder case is a rare phenomenon but it depends from case to case. Wisdom is sought from the case Dr. Israrul Hag v. Muhammad Fayyaz (2007 SCM R 1427).
13. Admittedly, complainant Riaz Ali (P.W.9) is brother while Noor ul Basir (P.W.10) is maternal uncle of deceases Shagufta. There was strained relations between the parties because it has come in the cross-examination of complainant that his father died subsequent to his mother; however, neither Shafaras Khan, the father of convict, nor his family members participated in his death condolence, therefore, both the P.Ws. Fall within the category of interested witnesses, having a motive to falsely implicate innocent person, hence, strong corroboratory evidence, coming from unimpeachable source, was required which is admittedly missing in the instant case.
In the final analysis of evidence on record, we are of considered view that, no doubt, unfortunate incident has taken place in which Shagufta lost her life but not in the manner and mode as narrated by the prosecution on the basis of evidence furnished by the above two alleged eye- witnesses.
14. The story regarding motive behind the occurrence also seems to be tailored one. We are unable to accept the proposition that refusal of the deceased to give her minor son to the appellant for taking him outside the field would have prompted him to shoot his sister-in-law on such an unimportant matter, therefore, the motive set up by the prosecution is not only flimsy but also appears to be unnatural one, hence, the same is also of no help to prosecution.
15. No doubt, medical evidence supports the prosecution story to the extent that the deceased died due to fire arm injury and not beyond but medical evidence does not establish either identity or the involvement of the accused in the crime. Medical evidence can be used to support the ocular testimony or any other incriminatory evidence but in the present case ocular testimony having been found not confidence-inspiring, therefore, the same is of no use to prosecution. Similarly, recovery of pistol as weapon of offence has also not been proved in accordance with law.
16. Insofar as the abscondance of the appellant is concerned, it is also of no use to prosecution because it can neither remove the defects of the oral evidence nor is itself sufficient to justify the conviction. Reliance is placed on the case Rohtas Khan v. The State (2010 SCM R 566) wherein it has been held that conviction cannot be sustained on abscondance of accused alone.
17. The gist of the above discussion is that the presence of P.W.9 and P.W.8 was highly doubtful at the time of occurrence as they failed to explain their presence in a satisfactory manner in the house of deceased and their testimony has not been corroborated by any independent evidence, therefore, it seems that the appellant was involved in the case due to suspicion, however, it is settled law that the suspicion howsoever, strong it cannot take the place of proof. It is well-settled principle of law that prosecution primarily is bound to establish guilt against the accused without shadow of reasonable doubt by producing trustworthy, convincing and coherent evidence and if Court comes to the conclusion that the charge so levelled against the accused has not been proved beyond reasonable doubt, then the accused becomes entitled for his acquittal on getting benefit of doubt. Rule of benefit of doubt is essentially a rule of prudence which could not be ignored while dispensing justice in accordance with law. Said rule is based on the maxim "it is better that ten guilty person be acquitted rather than one innocent person be convicted" which occupied a pivotal place in the Islamic Law and is enforced strictly in view of the saying of the Holy Prophet (p. b. u. h) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent". It has been now settled that conviction must be based on unimpeachable evidence and certainty of guilt and any doubt arising in the prosecution case must be resolved in favour of the accused. Reliance in this regard is placed on case. Muhammad Khan and another v. The State 1999 SCM R 1220 and Muhammad Ikram v. The State (2009 SCM R 230).
18. In view of the above discussion and analysis of evidence from all angles, we are of the view that the prosecution has failed to prove the guilt of the appellant-convict through unimpeachable ocular testimony, therefore, the conviction of appellant cannot be maintained. Resultantly, while extending the benefit of doubt, we accept the appeal filed by the appellant-convict by setting aside his conviction and sentence and acquit him of the charges levelled against him.
' These are the reasons of our short order of even date.