' ABDUL LATIF KHAN, J.---Through the instant appeal, the appellant Noor Muhammad has called in question the judgment dated 17-2-2011 passed by the learned Sessions Judge, Tank vide which he was convicted under section 302(b), P.P.C. And sentenced to life imprisonment on four counts with compensation of Rs.50,000 on each count under section 544-A, Cr.P.C. And benefit of section 382- B, Cr.P.C. Was extended in his favour.
2. The prosecution story in brief is that on 22-3-1999 at 2200 hours, the complainant Akram Khan reported the matter to the local police to the effect that on the eventful day, he was present in the house of his brother Alam Gul and Alam Gul along with his wife and other family members was also present when the appellant and his son Sanaullah entered the house duly armed with Kalashnikovs and started indiscriminate firing with which his brother Alam Gul, Mst. Hukam Jana, Kifayatullah and Ikramullah were hit and died on the spot. After the occurrence, the accused decamped from the spot.
3. After completion of usual investigation, complete challan against the appellant was submitted in the trial Court where he was formally charged, to which he did not plead guilty and claimed trial. In order to prove its case against the appellant, the prosecution examined seven witnesses. The appellant was also examined under section 342, Cr.P.C. He neither appeared as his own witness on oath nor produced any evidence in his defence. After hearing the arguments of learned counsel for the parties, the learned trial Court convicted and sentenced the appellant as mentioned above vide impugned judgment dated 17-2-2011.
4. Learned counsel for the appellant contended that appellant was charged by the complainant without any justification and based on malice. He contended that trial Judge has failed to take notice of variations made by the complainant, contrary to version of F.I.R. He added that evidence has not been scanned with critical approach, with special reference to the statement of complainant. He added that complainant has departed from the version of F.I.R. Which has damaged, the entire prosecution case but not noticed by the trial Court. He pointed out the delay of about five hours in lodging the F.I.R. He argued that presence of the complainant on the spot is doubtful. He argued that complainant hails from another village and unable to prove his presence on the spot at the time of occurrence. He referred to site plan and argued that only complainant is shown inside the house, whereas his mother is shown outside the house, who has not seen the occurrence. He added that when appeared as P.W.9, she gave contradictory statement regarding her presence inside the house, which is totally against the story of the prosecution. He further contended that whole case of the prosecution is based upon tailored story.
5. As against that, the learned A.A.-G. Assisted by learned counsel for the complainant contended that F.I.R. Has beep promptly lodged, as the police station is at a distance of 51 kilometers from place of occurrence. He added that the appellant has been directly charged with specific role. The prosecution story is duly supported by medical evidence and recoveries. The occurrence was witnessed by the complainant and P.W.9, who have fully supported the prosecution version. He argued that the appellant remained absconder for considerable long period of six years which alone is sufficient to connect him with the commission of offence.
6. We have given our deep thought to the arguments of learned counsel for the parties and perused the record with their valuable assistance.
7. The complainant, Akram Khan, made report of the occurrence in the shape of murasila, Exh.PA/1, which was sent to police station through Atlas Khan FC No.193, on the basis of which F.I.R. No.32 was registered on 22-3-1999 under section 302/34, P.P.C. In Police Station Mulazai, District Tank against the convict-appellant Noor Muhammad son of Gul Muhammad and his son Sanaullah and charged them for the murders of Alam Gul deceased, his wife Mst. Hukam Jana and two minor sons Qismatullah and Naseebullah. The complainant named the minors in F.I.R. As Ikramullah and Kifayatullah but later on through supplementary statement, the names were corrected. He deposed in cross-examination that names of these two minors were wrongly mentioned in the F.I.R.
As Kifayatullah and Ikramullah, as somebody else told him the names of minor deceased. He further deposed that their names were not correctly mentioned by him in the F.I.R. As they were small and he was in shock. This shows the conduct of complainant and makes his presence doubtful on the spot, as it does not stand to reason that names of sons of real brother, and nephews of the complainant, aged about 10/11 years and 7/8 years respectively, were not known to him and somebody else told him wrongly. This also gives an impression that he has not seen the occurrence and story narrated by him is tailored one.
8. The version of F.I.R. Has not been supported by the complainant and P.Ws. In the F.I.R., the complainant charged the convict-appellant and his son (now dead) for indiscriminate firing with Kalashnikovs, resulting into killing of deceased Alam Gul his wife Mst. Hukam Jana and his two minor sons Naseebullah and Qismatullah. This version has been negated by him while deposing as P.W.7, by accepting the suggestion in cross-examination that firing was only made by Sanaullah accused. He further strengthened this version by voluntarily adding that he has taken oath and recited 'Kalma Sharif', meaning thereby that he has exonerated the convict-appellant from firing.
He further negated the version of F.I.R., wherein both the accused were shown armed with Kalashnikovs, whereas in his statement, he stated that convict-appellant Noor Muhammad was armed with .303 bore rifle. He further negated the prosecution version by deposing in Court statement that the firing was made by Sanaullah accused, therefore, he cannot say that what was object/purpose of convict-appellant Noor Muhammad to commit murder or prohibit his son from commission of offence. He further, stated that he told the I.O. That first fire was shot by accused Sanaullah. He admitted his abode in village Kot Kut, whereas occurrence took place in village Wanda Zalo.
9, No recovery of empties of .303 bore was made, rather eleven empties of 7.62 bore were recovered, which were not sent to F.S.L. The medical report speaks about 12 injuries on the bodies of four deceased. The site plan though prepared on the pointation of complainant and P.W.9, his mother, has not supported the prosecution story to the extent of recoveries and presence of complainant, deceased and accused at points shown in it. The accused were shown at points Nos.5 and 6, complainant at Point No.7 and deceased on points Nos.1, 2, 3 and 4. The complainant has been shown within the firing range, if made, as alleged and how escaped or spared is still a mystery, rather the possibility of his non-presence on the spot cannot be ruled out, in peculiar circumstances of the case.
10. The complainant is allegedly the sole eye-witness and his statement has totally damaged the prosecution case. His mother (P.W.9) was shown in site plan at point No.9, outside the house but while deposing in Court, she in cross-examination shown herself inside the house. Her version of standing outside on embankment of house is also doubtful, in the light of her stance of being present inside the house. It also negates the site plan and is contrary to the statement of P.W.7, complainant. He introduced the motive/enmity on account of cock fighting, which too negates the version of F.I.R. Even the version of F.I.R. With regard to presence of complainant inside the house, at point No.7 as per site plan and get escaped by accused, who let him escape and skipped from points Nos.7 to 7-A and spared him, does not stand to reasons.
11. Quite apart from this, mere absconcion without corroboration from other evidence, could not be made basis for conviction on capital charge. No evidence to this effect brought on file.
12. For what has been discussed above, we are of the considered view that the trial Court has failed to appreciate the evidence in true perspective. The sole statement of complainant (P.W.7) and alleged eye-witness exonerates the convict-appellant in unequivocal manner from the commission of offence and stated with clarity that firing was made only by Sanaullah accused, now dead, which amounts to fatal blow to the prosecution case. The solitary interested testimony of the alleged eye-witness, uncorroborated by other evidence including his mother (P.W.9), duly contradicted by other evidence available on file, leads to conclusion that trial Court has wrongly convicted and sentenced the appellant.
13. Resultantly, we accept the instant appeal, set aside the impugned judgment of conviction and sentence dated 17-2-2011 of learned Sessions Judge, Tank and acquit the convict-appellant of the charges levelled against him. He shall be released from Jail forthwith if not required in any other case.
14. Above are the detailed reasons of our short order of even date.