ASSADULLAH KHAN CHAMMKANI, J.- At a trial held by learned Additional Sessions Judge-I, Peshawar, appellant Aurangzeb alias Zebo was found guilty of the murder of Shahid deceased and attempt to commit murder of injured Ayaz as well as causing injuries on his person, thus vide judgment dated 20.02.2014, he was convicted and sentenced as under:- Under Section 302 PPC:- Penalty of death for the murder of deceased Shahid, to be hanged by neck till he is declared dead and to pay Rs.1,00,000/- as compensation in terms of S.544-A Cr.P.C. to LRs of the deceased or in default thereof to undergo 06 months S.I. further.
Under Section 324 PPC:- To undergo 02 years imprisonment for attempting at the life of complainant Ayaz and to pay a fine of Rs.40,000/- or in default thereof to undergo 03 months S.I. further.
Under section 337-A (i) PPC:- To pay Daman amounting to Rs.20,000/- and to suffer 06 months R.I. as Ta'zir.
Under Section 337-F (ii) PPC:- To pay Daman amounting to Rs.10,000/- and to suffer 01 month R.I. as Ta'zir.
Under Section 337-F (ii) PPC:- To pay Daman amounting to Rs.10,000/- and to suffer 01 month R.I. as Ta'zir.
Under Section 13 Arms Ordinance, 1965:- To undergo 03 years R.I. and to pay a fine of Rs.10,000/- or in default thereof to undergo 06 months S.I. further.
2. Being aggrieved from his conviction and sentences, appellant-convict, has preferred the instant criminal appeal while the learned Trial Court has sent Murder Reference No.3-P/2014 in terms of Section 374 Cr.P.C. for confirmation of death sentence of the appellant-convict. As both are stemming out of the same judgment of the learned Trial Court, therefore, are going to be disposed of through this common judgment.
3. On 28.03.2010 Hassan Gul ASI (PW.9), during his routine patrolling, on receipt of information about the incident in "Rano Ghari" rushed to the spot, where at 1630 hours, Ayaz Khan (PW.1), reported him in injured condition that on the fateful day he along with his brother Shahid deceased was on the way to work. At 1600 hours, when they reached near the house of Said Alam, situated in Rano Ghari, Aurangzeb alias Zebo (appellant-convict herein), duly armed with a Kalashnikov present there, opened fire at them with intention to do them away, as a result, his brother Shahid was hit and died on the spot, while he sustained injuries on his lower lip, right arm and left wrist due to firing of the accused. In addition to complainant, the incident is stated to have been witnessed by his brother Fayaz (PW.2) and two other witnesses, namely, Yousaf (abandoned) and Rahim Gul (PW.3). Motive behind the occurrence is stated to be an altercation inter-se the deceased and appellant some three days prior to the incident.
4. Hassan Gul ASI (PW.9) recorded the report of complainant into murasila Exh.PA/1, on the basis of which FIR Exh.PA bearing NO.242 dated 28.03.2010, was registered under section 302/324 PPC at Police Station Chammkani, Peshawar. He prepared injury sheet of injured Ayaz Exh.PW.9/1, injury sheet and inquest report of deceased Shahid Exh.PW.9/2 and PW.9/3, shifted the injured to LRH, Peshawar for treatment under the escort of Constable Akhtar Gul and the dead body of deceased Shahid to KMC, Peshawar for autopsy under the escort of Constable Roidad Khan.
5. Dr. Muhamamd Khalid (PW.11) conducted autopsy on the dead body of the deceased on 28.03.2010 at 06.10 p.m. and found the following injuries on his person vide autopsy report Exh.PW.11/1:-
1. Firearm entry wound on the right side of lower back of chest .5x.5 cm from midline and 14 cm below the angle of scapula.
2. Firearm exit wound on right side back of abdomen 4 x 2 cm in size, 3 cm above the iliac crest.
3. Firearm exit wound on right side of outer abdomen 3x 2 cm in size, 14 cm above the iliac crest and 8 cm from midline.
4. Firearm exit wound on left side of outer chest 3x3 cm in size, 10 cm below the axilla and 15 cm from midline.
5. Firearm lacerated wound on the left side elbow joint.
6. Firearm entry and exit wound on the right side elbow joint.
7. Firearm entry wound on right side front of abdomen .5x.5 cm in size, 6 cm from midline just below the costal margin.
8. Firearm entry wound on left side front of chest 1x1 in size, 5 cm from midline and 1 cm above the costal margin.
Walls, ribs, cartilages, plurae, left lung, heart and blood vessels were found injured. Stomach was found health with semi digested material.
Opinion:- According to opinion of the Medical Officer, the cause of death of the deceased was due to hypo- volemic shock because of injuries to heart, lung and blood vessels of chest and abdomen due to firearm.
Probable time between injury and death has been observed as immediate while between death and post mortem as 01 to 5 hours.
Dr. Zia ur Rehman, who examined injured Ayaz Khan could not be examined being abroad, therefore, Dr. Shakir Ullah CMO LRH, Peshawar was examined, who verified the handwriting and signature of Dr. Zia ur Rehman over MLC Exh.Pw.8/1 of injured. According to medico legal report of injured Ayaz, he sustained firearm graze wound on his lower lip and upper lips, measuring 5-6 cm long and 2-3 cm wide in front i.e. the middle of the lips. Similarly, he also sustained firearm injury on dorsum of his left hand with exit and firearm wound on his right arm.
6. Gohar Khan CIO, Police Station Chammkani, conducted investigation in the case. He proceeded to the spot, prepared site plan Exh.PB at the instance of eyewitness Fayaz. During spot inspection, he secured blood stained earth from the place of deceased and took into possession a Suzuki Pickup bearing registration No.LXC-2715, having bullet mark, vide recovery memo Exh.PW.6/1. Vide recovery memo Exh.PW.6/2 he took into possession the last worn bloodstained garments of the deceased brought by constable Roidad from KMC, Peshawar, while through recovery memo Exh.PW.6/3 the bloodstained shirt of the injured was taken into possession. He raided the house of the accused vide search memo Exh.PW.6/4 but did not recover any incriminating article, recorded statements of the PWs under section 161 Cr.P.C and sent the bloodstained articles to the FSL. Since the accused was avoiding his lawful arrest, therefore, he initiated proceedings under sections 204 and 87 Cr.P.C. against him vide applications Exh.PW.6/6 and Exh.Pw.6/7, recorded statement of DFC as Search witness.
After completion of investigation, he handed over the case file to SHO, who submitted challan in terms of S.512 Cr.P.C. against the accused/appellant.
7. On arrest of the accused/appellant, he during interrogation disclosed about the weapon of offence, resultantly, on 06.02.2011, a Kalashnikov was recovered on his pointation from the house of one Masood. On completion of usual investigation, supplementary challan was submitted against the accused/appellant before the learned Trial Court, where he was formally charge sheeted to which he pleaded not guilty and claimed trial. To prove its case, prosecution examined as many as twelve witnesses. After closure of the prosecution evidence, statement of the appellant was recorded under section 342 Cr.P.C. wherein he denied the prosecution allegations and professed his innocence. He, however, declined to be examined on oath under section 340 (2) Cr.P.C. or to produce evidence in defence. On conclusion of trial, learned Trial Court, after hearing both the sides, convicted and sentenced the appellant, as mentioned above.
8. Learned counsel for the appellant argued that appellant is quite innocent and has been falsely implicated in the case on mere suspicions; that alleged eyewitnesses Fayaz and Rahim Gul, being close relative of the deceased are procured witnesses that's why they have miserably failed to establish their presence on the spot because of their escape from indiscriminate firing of the accused being in close proximity of the deceased or their let off by the assailant armed with deadly weapon which is unbelievable, their unnatural conduct after the incident, dishonest improvements and their inconsistency with each other as well as with the complainant on material aspects of the incident, as manifest from their testimony; that injured complainant is not a truthful witness and he has not come forward with clean hands as his testimony is suffering from material contradictions, discrepancies and dishonest improvements; that mere stamp of injuries on the person of a witness cannot be a certificate of his truthfulness; that actually by virtue of his injuries on the upper and lower lips, the complainant was not capable to talk and a false report was made by someone else on his behalf that's why he failed to establish his version; that prosecution has not brought an iota of evidence to prove the capability and ability of the complainant that he was capable to talk; that motive alleged remained unproved; that medical evidence does not support the prosecution version; that no crime empty has been recovered from the spot despite that the complainant party remained on the spot till arrival of the police; that not a single word has been mentioned by the complainant about presence of any Suzuki Pickup on the spot and the Suzuki Pickup taken into possession during spot inspection by the I.O., shrouded in mystery as neither its owner has come forward nor the I.O. has collected any material about its ownership; that the alleged incident has taken place in a street in thickly populated area but no independent person has come forward to depose in favour of the prosecution; that recovery of the Kalashnikov allegedly effected on the pointation of the appellant is planted one as neither Masood from whose house the same had been recovered has been cited as witness nor an accused; that the Kalashnikov has not been sent to the FSL for determination of its working condition; that mere abscondance cannot be a substitute of real evidence. He lastly argued that prosecution has miserably failed to bring home charge against the appellant through cogent and confidence inspiring evidence and the learned Trial Court while wrongly appreciating the evidence reached to erroneous conclusion by holding the appellant guilty of the offence, hence, the impugned judgment is liable to be set at naught.
9. Conversely, learned AAG assisted by learned counsel for the complainant contended that appellant is directly and singularly charged by the injured complainant in a promptly lodged report for committing murder of the deceased Shahid and attempting at his life and in case of single accused in a capital charge is a rear phenomena; that there exist no previous blood feud between the parties to prompt the complainant to substitute the accused for murder of his real brother; that being a day light incident and parties being well known to each other, question of mistaken identity does not arise; that it is very much evident from the medico legal report of the injured complainant that he was fully conscious, therefore, by no stretch of imagination his report can be doubted; that having the stamp of injuries on his person, presence of complainant cannot be denied who has furnished straightforward and truthful account of the incident; that other eyewitnesses have also established their presence of the spot and supported the version of complainant; that defence has miserably failed to create any dent in their testimony; that medical evidence supports the prosecution version; that recovery of blood from the spot and a Kalashnikov on the pointation of the appellant further supplement the prosecution version; that on the basis of mere close relationship of the PWs with the deceased or complainant, their straightforward and trustworthy testimony cannot be discarded; that in presence of direct ocular evidence of unimpeachable character, mere non-recovery of crime empties would not be fatal to the prosecution case; that noticeable unexplained abscondance of the appellant is another circumstance which proves his guilty conscious. They contended that the impugned judgment of the learned Trial Court, being well reasoned and based on proper appreciation of evidence is not open to any interference by this court.
10. We have given our anxious consideration to the exhaustive arguments advanced from both the sides and perused the record with their able assistance.
11. It appears from the record that incident of the instant case has taken place in a street near the house of one Mir Alam in "Rano Ghari" in the month of March 2010 at 4.00 P.M., in which Shahid deceased has been done to death while complainant Ayaz has sustained firearm injuries.
According FIR, appellant is directly and singularly charged for the said occurrence. No doubt, the Hon'ble Supreme Court has held in so many judgments that substitution of single accused in a murder charge is a rare phenomenon, but still to put the rope around the neck of an accused charged singularly for such offence, there must be ocular account of unimpeachable character, trustworthy and confidence inspiring, corroborated by other material circumstantial evidence.
Besides, the apex Court in case titled, "Dr. Israr ul Haq vs Muhammad Fayyaz and another" (2007 SCM R 1427) has observed that substitution of innocent person when a single accused is named in a murder case is a rare phenomenon, but it depends from case to case. The ocular account of the incident has been furnished by complainant Ayaz (PW.1), Fayaz Khan (PW.2), both brothers of the deceased and Rahim Gul (PW.3), relative of the deceased. No doubt, mere relationship of a witness with the deceased is not a valid ground for excluding his testimony from consideration, but it is equally settled principle of law that an eyewitness who claims his presence on the spot must satisfy the mind of the Court for believing his statement and placing implicit reliance over the same by some physical circumstances.
12. Record divulges that an altercation inter-se the deceased and appellant some three/four days prior to the occurrence has been alleged as motive behind the occurrence. On the face of record, no shred of evidence whatsoever has been led by the prosecution to prove the alleged altercation so much so that injured complainant Ayaz Khan (PW.1) has not uttered a single word in his statement about the motive. PW Fayaz Khan, though has deposed about the motive in his statement but no independent witness has been produced to prove the said altercation between the deceased and the appellant. None of the PWs has stated about the place of the said altercation or the persons in whose presence the same allegedly took place. Similarly, no report has been lodged about the said altercation. In such eventualities, the motive part of the prosecution story remained unproved, benefit of which would definitely go to none else, but the accused as held by the apex court in case titled, "Hakim Ali and 4 others Vs the State and another"
(1971 SCMR 432), that prosecution though is not called upon to establish motive in every case, yet once it has set up a motive and failed to establish the same, then it would be the prosecution to suffer the consequences and not defence. Similarly, in case titled, "Muhammad Sadiq Vs Muhammad Sarwar and 2 others" 1979 SCMR 214, the Hon'ble apex court has held that if motive for crime put forward by prosecution not proved at all, then in such eventualities ocular evidence is required to be scrutinized with great caution. Same view has been reiterated by the apex court in case titled, "Noor Muhammad Vs the State and another" (2010 SCM R 97), that when motive is alleged but not proved, then ocular evidence is required to be scrutinized with great caution. Thus, taking wisdom from the judgments of the apex Court (supra), now we have to evaluate and scrutinize the testimony of the eyewitnesses with great care and caution.
13. Fayaz Khan while appearing as PW.2 deposed that on the fateful day his brothers Shahid deceased and Ayaz complainant were going to work; that since appellant had quarreled with his brother Shahid deceased some 3 days prior to the occurrence, therefore, he was directed by his mother to follow them as an abundant precaution; that when they reached near the house of Said Alam, appellant Aurangzeb present there opened fire at their brothers Ayaz and Shahid, as a result Shahid died on the spot while Ayaz sustained injuries; that thereafter the police shifted them to the Police Station. The statement of Fayaz Khan totally negates the version of the complainant and Hassan Gul ASI (PW.9) who allegedly authored the report of the complainant on the spot as according to him, the dead body of the deceased was shifted to KMC, Peshawar and injured to LRH, Peshawar from the spot. He has not stated about their shifting to Police Station. PW Fayaz Khan has not stated about any report by complainant on the spot. He has not uttered a single word about their shifting to Police Station. The other eyewitness Rahim Gul appeared as PW.3. He deposed that on the day of incident he came out of his house for cutting grass and when reached the place of occurrence, accused Aurangzeb alias Zebo present there duly armed with Kalashnikov, opened fire at the deceased, who was hit and died on the spot and that he also fired at the complainant with which he was hit and injured. The accused decamped from the spot and thereafter police arrived at the spot, people gathered there, complainant made the report and the police shifted the dead body and injured. During his cross-examination PW Fayaz Khan was confronted with his statement under section 161 Cr.P.C. During his court statement he deposed certain new events about the occurrence which are omitted in his statement u/s 161 Cr.P.C., thus amounts to dishonest improvements just to bring in line his testimony with the prosecution case and to justify his presence on the spot. He denied his assertion in his statement under section 161 Cr.P.C. that his injured brother was taken to the hospital by co-villagers. He admitted the distance of about 50 to 60 paces inter-se the spot and his house. He deposed that at the time of preparation of site plan PWs Yousaf and Rahim Gul were also present. A look over the site plan reveals that it has been prepared at the pointation of PW Fayaz only. Had Yousaf and Rahim Gul present there, the I.O. would have mentioned their names.
The incapability of the complainant to talk was seriously questioned in cross-examination of this witness by the defence. Similar, is the cross-examination of PW Rahim Gul. He was also confronted with his statement under section 161 Cr.P.C. He deposed that he reached the police Station at 4.30 p.m on the day of occurrence and that he was all alone with the complainant Ayaz in the Police Station while recording their statements. This part of statement of PW Rahim Gul totally negates the report of the complainant, his statement and statement of PW Fayaz Khan because according to report, the occurrence took place at 4.00 p.m while it was reported on the spot at 4.30 p.m. If PW Rahim Gul and complainant were present in Police Station at 4.30 p.m. then who reported on the spot at 4.30 p.m. Similarly, if Rahim Gul was present in Police Station at 4.30 p.m. then how he remained on the spot at 4.30 p.m. as alleged by PW Fayaz that at the time of preparation of site plan at 4.30 p.m. besides Yousaf, PW Rahim Gul was also present there. PW Rahim Gul in cross- examination admits that inter-se distance of spot and Police Station is about one Kilometer and between spot and LRH as three kilometers. As stated earlier, the occurrence has taken place at 4.00 p.m. which has been reported allegedly by complainant on the spot at 4.30 p.m. In such eventualities, question arises as to why both these PWs remained like sick ducks on the spot for a long time of 30 minutes despite that they were confronted with a dead body and injured who were none else but brothers of PW Fyaza Khan and relative of PW Rahim Gul. Both the PWs have not made any effort to shift the dead body or at least the injured to the hospital to save his life which would certainly be the priority of every person present on the spot in such like situation. The unnatural conduct of both the PWs is highly questionable. Besides, according to PW Rahim Gul he was on his way for cutting grass, but he has not produced any instrument used for cutting grass before the I.O nor the I.O. has bothered to take the same so as to prove the presence of PW Rahim Gul on the spot. It does not appeal to a prudent mind that a brother would see his brother in a pool of blood having firearm injuries and he would not touch him. Had the PWs present there on the spot, they would have taken the deceased and the injured in their laps and would have made efforts for their shifting, in which exercise their clothes would have smeared with the blood of the deceased and injured, but no such garments has either been shown or taken by the I.O. so as to establish the presence of the PWs on the spot. Yet there is another astonishing aspect of the case.
In the site plan the injured complainant has been shown at point No.1, PW Fayaz at point No.2, Yousaf (abandoned PW) at point No.3 and PW Rahim Gul at point No.4. The accused has been shown at Point No.5 while deceased at Point "A". The places of all the PWs are clearly visible from point No.5 i.e. the place of the accused. The PWs have been shown in close proximity with the deceased, and as shown in the site plan, there is no hindrance inter-se the accused and the PWs, but none of the PWs has sustained any scratch what to say about any firearm injury, despite that they were at the mercy of the accused having an automatic weapon which eject number of shots in seconds. It is not the case of the prosecution that the PWs took shelter somewhere at the time of incident. It does not appeal to a prudent mind that an assailant, who is mentally and physically well prepared to take the lives of two brothers, would spare their other brother who is at his mercy or to spare such other close relative of the deceased and victim, so as to stand eyewitness against him. In view of the above discussion we have reached to in irresistible conclusion that the statements of both the alleged eyewitnesses are suffering from material contradictions, discrepancies and deliberate dishonest improvements, making their presence on the spot highly doubtful, therefore, we disbelieve their testimony which cannot be relied upon.
14. Now coming to the statement of injured complainant Ayaz Khan, he appeared as PW.1. In his very examination-in-chief he deviated from his earlier stance as set forth by him in his initial report by introducing some new events. In his report, he has directly charged the accused that the moment they reached near the house of Said Alam, appellant present there duly armed with Kalashnikov, opened fire at them i.e. he and his brother Shahid deceased. But in Court statement he stated that accused first fired at the deceased Shahid who was hit and died on the spot and thereafter opened fired at him causing him injuries. He further deposed that his mother was also present there on the spot but she was not associated with the case by the police. This part of statement of complainant on one hand is deviation from his earlier stance while on the other hand amounts to deliberate and dishonest improvements. He also deposed about presence of PWs Rahim Gul, Yousaf and Fayaz on the spot at the time of incident and that police arrived at the spot about 4.30 p.m. and he reported the occurrence. The statement of injured complainant is in contradiction with the statement of Rahim Gul, according to him complainant reported the occurrence in Police Station while according to complainant, he was never taken to Police Station but shifted to the hospital from the spot. PWs Fayaz and Rahim Gul have not stated about presence of mother of the complainant on the spot nor has she been cited as a witness. Albeit, the presence of complainant cannot be denied because of injuries on his person but his testimony is suffering from material contradictions and discrepancies and dishonest improvements, therefore, mere stamp of injuries in such circumstances cannot be considered as a certificate of his truthfulness.
15. Apart from above, we have strong reservations in our mind about capability of the injured complainant that whether he was capable to talk having firearm injuries on his both, upper and lower lips, that too, measuring 5 to 6 c.m. in length and 2-3 c.m wide. The medical Officer who examined him has not been produced in the witness box, being abroad.
In medico legal report, the complainant has been shown conscious but consciousness of a victim would not be sufficient to prove his capability of conversation. A victim may be conscious, well oriented in time and space, but at the same time may not be able to talk, particularly, in a situation like the one we are confronting in the instant case where the complainant had serious firearm injuries on his both lips. It was the duty of the prosecution to establish and prove the ability and capability of the injured complainant that he was able to talk because the defence has seriously questioned this aspect of the case but the prosecution failed to prove the same through cogent and convincing evidence. Besides, as stated earlier, we cannot deny the presence of the injured complainant on the spot having the stamp of injuries on his person but he has not come forward with clean hands and has suppressed the real facts of the incident as his testimony is neither consistent with other alleged eyewitness nor find corroboration from other strong circumstances of the case rather suffering from material contradictions and discrepancies as well as dishonest improvements, therefore we also disbelieve his statement. It has been held by the apex court in case titled, "Farman Ahmed Vs Muhammad Inayat and others (2007 SCM R 1825), that improvement made by eyewitness in his statement in order to strengthen the prosecution case, would lose its credibility and evidentiary value causing serious doubt on his veracity. Reliance can also be placed on case titled, "Sayed Saeed Muhammad Shan and another Vs the State" (1993 SCM R 550) and case titled, " Ibrar Hussain and others Vs the State and another" (2007 SCMR 506).
The same view has been reiterated by the apex Court in case titled, "Muhammad Tamil Vs Muhammad Akram" (2009 SCM R 120) by holding that "Complainant and his son had made dishonest improvements during trial and their statements were correctly discarded by both the Courts below". The peculiar facts and circumstance of the case suggest that the occurrence has not taken place in the mode and manner as alleged by the complainant rather in some other mode which would be best known to him but he has suppressed the same. It has been held by the apex court in case titled, "Amin Ali and another Vs the State" (2011 SCM R 323) that presence of injured witnesses cannot be doubted at place of incident merely because they had injuries on their person does not stamp them to be truthful witnesses. Similarly, the apex court while discussing the credibility of an injured witness in case titled, "Nazir Ahmad Vs Muhammad Iqbal and another" (2011 SCM R 527) observed that injuries of a prosecution witness only indicate his presence at the spot, but are not affirmative proof of his credibility and truth. Guidance in this regard can also be derived from Said Ahmed's case (1981 SCM R 795) and Muhammad Pervez case (2007 SCM R 670), Muhammad Hayat case (1996 SCM R 1411), and case titled, State Vs Muhammad Raja (PLD 2004 Peshawar 01). The complainant has not uttered a single word about the Suzuki Pickup recovered from the spot by the I.O. having bullet mark, neither in his report nor in his court statement. The ownership of the said Suzuki has not been claimed by anybody till date nor the I.O. has made any effort in this regard by recording statements of the inhabitants of the nearby house. Who was the owner of the said Suzuki and who had parked the same on the spot? shrouded in mystery. The house of the complainant is at a distance of 50 to 60 paces from the spot. Circumstances of the case suggest that the dead body and the injured remained unattended on the spot till arrival of the police, whereafter they were shifted to the hospital and then report was made and the report seems to have been made by someone else on behalf of the complainant, which has been thumb from him as keeping in view injuries on his person, we are of the firm view that he was unable to talk.
16. No crime empty has been recovered from the spot. It is not the case of the prosecution that somebody interfered with the spot and removed the empties. Rather according to the prosecution version the injured and dead body along with the PWs remained on the spot till arrival of the police.
Had it been so, then what happened to the crime empties. No plausible justification has been furnished by the prosecution in this regard. The autopsy report, bloodstained earth, bloodstained garments of the deceased coupled with Serologist report though establish the unnatural death of the deceased with firearm but by whom, is shroud in mystery. Besides, such pieces of evidence are always taken into consideration alongwith the substantive evidence as confirmatory and corroborative evidence, which in isolation would not be sufficient for recording conviction in a capital charge. In this regard reference can be made to Riaz Ahmed's case (2010 SCM R 846). As per the dictum of the apex Court, corroborative evidence is meant to test the veracity of ocular evidence. Both corroborative and ocular testimony is to be read together and not in isolation.
Wisdom in this regard may be derived from Ijaz Ahmed's case (1997 SCM R 1279 and Asadullah's case (PLD 1971 SC 541). It has been held by the apex Court in case titled, "Saifullah Vs the State"
(1985 SCM R 410), that when there is no eyewitness to be relied upon, then there is nothing, which can be corroborated by the recovery. Similarly, in case titled, "Riaz Masih Vs the State" 1995 SCM R 1730, the honourable apex Court held that recovery of crime weapon by itself is not sufficient for conviction on murder charge. The same view has been expressed by the apex Court in Saifullah's case (1985 SCM R 410).
17. As regard recovery of Kalashnikov allegedly recovered on the pointation of the appellant from the house of one Masood, neither the said Masood has been cited as a marginal witness to the recovery memo, nor an accused. In absence of statement of said Masood, it cannot be believed that the weapon in question was the ownership of the appellant or the appellant had any nexus with the same. Moreso, in absence of recovery of crime empty and FSL report about the alleged weapon of offence, the question still remains as to whether it was in working condition or not and whether the same weapon had been used in the commission of offence. All these circumstance, create doubt in the alleged recovery, on the basis of which appellant cannot be connected be connected with the recovery of the weapon in question.
18. No doubt, proceedings under section 512 Cr.P.C. were initiated and completed against the appellant, however, he has denied his abscondence in his statement under section 342 Cr.P.C. It is settled law that abscondence alone, cannot be a substitute of real evidence. It has been observed by the apex Court in Farman Ali and others' case (PLD 1980 SC 201) that abscondence by itself would be of no avail to prosecution in absence of any other evidence against the absconding accused. Mere abscondence of accused would not be enough to sustain his conviction. Reliance can also be placed on case titled, "Muhammad Vs Pesham Khan (1986 SCM R 823).
19. For the forgoing reasons, we are of the firm view that prosecution has miserably failed to bring home the guilt of appellant through cogent and confidence inspiring evidence beyond shadow of doubt. The prosecution evidence is pregnant of doubts and according to golden principle of benefit of doubt; one substantial doubt would be enough for acquittal of the accused. The rule of benefit of doubt is essentially a rule of prudence, which cannot be ignored while dispensing justice in accordance with law. 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. The said rule is based on the maxim " it is better that ten guilty persons 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 (PBUH) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent". Wisdom in this regard can also be derived from the judgments of the apex court in case titled, "Muhammad Khan and another Vs the State" (1999 SCM R 1220) and case titled, "Muhammad Ikram Vs the State" (2009 SCM R 230). In the instant case, the prosecution evidence is highly discrepant, full of infirmities and doubts. The learned trial Court has not evaluated the evidence in its true perspective and thus reached to an erroneous conclusion by holding the appellant guilty of the offence. Resultantly, this appeal is allowed. Convection and sentences of the appellant are set aside and he is acquitted of the charges leveled against him. He be set at liberty forthwith, if not required in any other case. The murder Reference sent by the learned Trial Court is thus answered in Negative.
20. These are reasons of our short order of even date, which read as under:- "For reasons to be recorded later, we allow this appeal, set-aside the conviction and sentence of appellant-convict Aurangzeb alias Zebo, recorded and awarded by learned Trial Court/Additional Sessions Judge-II, Peshawar vide impugned judgment dated 20.02.2014, under sections 302 (b), 324, 337-A (i), 337-F (ii) PPC read with S.13 of the Arms Ordinance, 1965, in case FIR No.242 dated 28.03.2010, registered under sections 302/324 PPC read with S.13 A.O, Police Station Chammkani, Peshawar and hereby acquit him of the charges leveled against him. He be set at liberty forthwith, if not required in any other case. Consequent upon acquittal of the appellant-convict, Murder Reference No.3-P/2014, sent by learned Trial Court in terms of section 374 Cr.P.C., is answered in Negative.
Additional Registrar (Judicial) of this Court is directed to sent copy of the judgment to the learned Trial Judge for his future guidance.