ROOH-UL-AlvIIN KHAN, J.---This common judgment shall dispose of the instant criminal appeal filed by appellant-convict Naseer Khan against his conviction and sentence as well as connected Criminal Revision No.19-B/2013, titled, "Ghafoor Khan v. Naseer Khan etc." filed by complainant for enhancement of sentence of respondent-convict, as both are stemming out of the same judgment of the learned trial Court/Additional Sessions Judge-II, Lakki dated 9-3-2013, whereby appellant was convicted and sentenced in the following manner:-
(i) Under section 324, P.P.C. To undergo 4 years' imprisonment, half simple and half rigorous with a fine of Rs.15000 and in default thereof to undergo 2 months' S.I. Further.
(ii) Under section 337-F(ii), P.P.C. To pay Rs.15000 as Daman to injured Ghafoor Khan either in lump sum or in installments spread over a period of five years from the day of order and in case of failure to pay the amount of Daman or any part thereof within the specified period, the appellant convict shall be kept in jail and shall be dealt within the same manner as if sentenced to simple imprisonment till payment of Daman amount or may be released on bail if he furnishes security or surety equivalent to the amount of Daman to the satisfaction of the Court or may be released on parole as may be prescribed in the rules.
(iii) Benefit of section 382-B, Cr.P.C. Has been extended in favour of the appellant-convict.
2. The prosecution case is that on 23-12-2009 at 1930 hours Ghafoor Khan complainant, in injured condition reported to local police at Police Station Naurang District Lakki Marwat that on the same day he reached Naruange from D.I. Khan, wherefrom he started towards his village Mama Khel on foot. At "Deegar Qaza Vela" when he reached the field of one Sher Ali of Painda Khel, there on the way Naseer (appellant-convict) duly armed with double .12 bore shot gun was present, who called upon him that he would not escape today and opened fire at him with intention to commit his Qatl-e-Amd, as a result, he was hit on his right hip. The accused, after the occurrence, decamped from the spot. The occurrence is stated to have witnessed by villagers of village Anal-. Motive alleged by the complainant is previous blood feud inter-se the parties. Explanation for lodging report with delay has been given as fear of the accused. The report of the complainant was reduced into writing in the shape of F.I.R mentioned above, hence, this case.
3. After arrest of the accused-appellant and completion of investigation, complete challan was submitted against him before the trial Court, where he was summoned and formally charged to which he pleaded not guilty and claimed trial, hence, the prosecution was invited to lead evidence in support of its case. The prosecution examined as many as seven witnesses. After closure of the prosecution evidence, statement of the accused-appellant was recorded under section 342, Cr.P.C.
Wherein he denied the prosecution allegations and professed his innocence. However, he neither wished to be examined on oath as his own witness under section 340(2), Cr.P.C. Nor opted to produce evidence in defence. On conclusion of trial, the learned trial Court after hearing both the sides, convicted and sentenced the accused-appellant as mentioned above.
4. I have given my anxious consideration to the respective arguments of the learned counsel for the parties and have gone through the record with their valuable assistance.
5. As per contents of First Information Report, the occurrence has taken place in the month of December. The time of occurrence as given by the complainant is "Deegar Qaza Vela". In the month of December, Assar prayer is usually offered at 330 p.m. Or at least 3.45 p.m. "Deegar Qaza Vela" means the time inter se Assar and Magharib. So, if we take the time of occurrence in juxtaposition with the Assar prayer time in the month of December, the same would be 4 p.m. To 5 p.m., but the incident has been reported at 07-55 p.m. i.e. After a delay of 2 hours for which no plausible explanation has been given by the complainant. Blood feud enmity with the accused has also been alleged by the complainant, so in these circumstance, consultation and deliberation in substitution of the actual culprit cannot be excluded.
6. Injured complainant was examined as P.W.3. His statement squarely runs contrary to his earlier version given by him in his report. According to his report the incident was witnessed by people of village Akbar but in his cross-examination he totally denied the presence of people at on the spot and stated in clear words that he was all alone on the spot at the time of occurrence. Moreover, he has introduced a new story in his statement, according to which he was lying alone on the spot and no body was there to shift him to hospital or Police Station and that a Rickshaw came there in which he was shifted to Police Station where he lodged report. Whereas, perusal of his report depicts that all these details are missing. Rather, it is asserted in his report that due to fear of the accused, delay occurred in lodging the report. Moreso, the story of his shifting to Police Station in a Rickshaw does not appeal to mind when one goes through the cross-examination of the complainant wherein he has stated that after firing he became unconscious therefore, he cannot tell as to whether the accused came towards him or not. He further stated that initially the accused made two fire shots and then also made subsequent firing on him but at that moment he was lying on the ground. B He further stated that he cannot tell the time for which he was lying on the spot. Firstly, the statement of the complainant is total negation of his report and secondly, if he became unconscious on the spot then how he knows all these details given by him in his statement. He has not named the Rickshaw driver who allegedly shifted him to the Police Station neither in his report nor in his statement nor the Investigating Officer has tried to examine the said Rickshaw driver under section 161, Cr.P.C. And to cite him as witness in challan. By replying to a question of defence that complainant has totally denied the factum of insertion of village people as eye-witnesses of the incident. Whereas, it has specifically been mentioned in his report that sufficient people of village Akbar has witnessed the occurrence. No independent witness has been procured by the I.O. To testify about the occurrence. Moreso, according to the complainant and Investigating Officer the site plan was prepared C on the same day of occurrence at night time but this fact is admitted by the complainant in his statement that he remained hospitalized for 03 days then how it was possible for him to accompany the Investigating Officer to the spot. Hafiz-ur- Rehman A.S.-I. Who conducted investigation in the case was examined as P.W.6. According to him, he moved application to SMO of Civil Hospital Naurang for taking the injured to the spot which was allowed and thereafter he took him to the spot and prepared the site plan. In his cross- examination he admitted that no specific report of the doctor regarding fitness of the injured to accompany him to the spot is available. It appears from record that from Civil Hospital Naurang the injured was shifted to DHQ Hospital Bannu, so if he was not in critical condition then why he was shifted to DHQ Bannu rather he should have been discharged on the same day. Thus, preparation of the site plan on the same day of the occurrence and taking of injured from the hospital to the spot by the Investigating Officer does not appeal to a prudent mind. Keeping all these material contradictions and discrepancies in the statement of the complainant I am of the considered view that the complainant has not come forward with clean hands rather he has tried his best to conceal the actual facts of the occurrence. 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. It is cardinal principle of administration of criminal justice that prosecution is bound to prove its case beyond any shadow of doubt. If any reasonable doubt arises in the prosecution case, the benefit of the same must be extended to the accused not as a grace or concession, but as a matter of right. Likewise, it is also well embedded principle of criminal justice that there is no need of so many doubts in the prosecution case, rather any reasonable doubt arising out of the prosecution evidence, pricking the judicious mind is sufficient for acquittal of the accused. Basically, it is the principle enshrined in Islamic jurisprudence, fourteen hundred years ago that "it would be better to acquit hundred culprits than convicting one innocent soul." Which has now been transformed into the form of the principle that, "acquitting by error would be better than convicting by error".
7. The medical evidence also does not support the version of the complainant. According to complainant at the time of firing, he was at a distance of 80 paces. As per statement of Medical Officer Khalid Hussain (P.W.1), he observed an entrance firearm injury on right buttock over posterior side below the level of right iliac crest size 1/3 x 1/3 skin muscle deep with bleeding. The weapon allegedly used in the commission of offence is .12 bore shot gun. According to Modi's Medical Jurisprudence and Toxicology at a distance of twelve feet the charge of shot spread widely and enters the body as individual pellets producing separate openings in an area of five to eight inches in diameter, but without causing blackening, scorching or tattooing of the surrounding skin. This scattering of shot depends upon the size of the gun, the load/charge of the gun powder, the distance of the gun from the body and location of the wound. As the distance increases, the damage caused by single pellet diminishes, until at about 30 feet, it is only capable of penetrating the clothes and skin of the victim and even he would need no surgery or stay in the hospital. A shot gun is not like a rifle or pistol. It fires shell contain several small round projectiles, called shot. At a distance of more than 50 feet the pellet would not likely embed in skin and muscles. Thus, keeping in juxtaposition the reference and observation in the Modi's Jurisprudence, with the distance of 80 feet inter-se the accused and the complainant as well as the weapon i.e. .12 bore shot gun, penetration of pellet in the body of the victim- complainant does not appeal to mind. Apart from that, no pellet has been extracted from the wound of the injured. Similarly, no crime empty has been recovered from the crime scene. The only recovery of bloodstained earth and bloodstained clothes of the injured by no stretch of imagination would be sufficient to prove the guilt of the accused.
8. All these material facts and circumstances of the case escaped notice of the trial Court while recording conviction. For what has been discussed above, I am of the considered view that the prosecution has miserably failed to bring home charge against the appellant. The prosecution case is full of material contradiction and discrepancies. The manner of occurrence also appears to be highly doubtful and concocted. Consequently, this appeal was accepted and the connected criminal revision petition for enhancement of sentence was dismissed by passing the following short order:-- For the reasons to be recorded later on through consolidated judgment, this appeal is allowed. The impugned conviction and sentence recorded by the trial Court/Additional Sessions Judge-II, Bannu in case F.I.R. No.724 dated 23-12-2009 registered under sections 324/337-F (ii) P.P.C. At Police Station Naurang District Lakki Marwat vide order/ judgment dated 9-3-2013, are set aside and the appellant is acquitted of the charge levelled against him in the aforementioned F.I.R. He be set at liberty forthwith, if not required in any other case. However, connected Criminal Revision No.19-B of 2013, titled, "Ghafoor Khan v. Naseer Khan etc." stands dismissed.