ASSADULLAH KHAN CHAMKANI, J.---Appellants Darwaiz Khan and Saifullah filed this criminal appeal against the judgment dated 9-12-2011 passed by learned Additional Sessions Judge-II, Swabi, whereby they have been convicted and sentenced in Case FIR No,1019 dated 23-8-2010 under section 302/34, P.P.C., registered at Police Station, Kalu Khan, as under:-- (i). Under section 302(b), P.P.C. To undergo imprisonment for life and to pay fine of Rs,One lac each as compensation under section 544-A, Cr.P.C. To the legal heirs of deceased and in default thereof to undergo six months' SI with benefit of section 382-B, Cr.P.C.
2. According to prosecution story, Mst. Nishat in Casualty Room of Civil Hospital, Kalu Khan, lodged a report to police that on 23-8-2010 she along with her sons, namely, Sher Baz Khan and Kamran was on the way back home, situated in Mohallah Bazid Khel, when at 14.45 hours reached near Gohar Zaman's hujra, in the meanwhile, accused Saif Ullah and Darwaiz Khan alias Gul duly armed came out of maize crop, opened firing as a result of which her son Sher Baz Khan was hit and died on the spot. Motive behind the occurrence was that Mst. Shaista, the daughter of Darwaiz Khan, had eloped with deceased Sher Baz Khan. The occurrence was stated to be witnessed by Kamran besides her, as such; the above referred FIR was registered.
3. Dr. Shad Ali (PW-9) conducted autopsy on the dead body of the deceased and found a single firearm entry wound about 1/4 x 1/4 inches in size on the back of skull towards right side of mid line and its exit was about 1 x 1 inches in size on the left side forehead, having brain matters in it.
According to his report Exh.PW 7/1, cause of death was injury to the brain due to firearm.
4. After registration of case, investigation of the case was entrusted to Noor Ali ASI (PW-9), who visited the spot and prepared site plan Exh.PB at the pointation of complainant and PW Kamran.
During spot inspection, he recovered blood stained earth and seized the same vide memo. Exh.PW 3/1. He also took into possession garments of the deceased vide recovery memo. Exh. PW 3/2. He recorded statements of the PWs under section 161, Cr.P.C. After completion of investigation, complete challan in the case was submitted.
5. Learned Trial Court after fulfilling legal formalities, framed formal charge against the appellants to which they pleaded not guilty and claimed trial. Prosecution in order to prove its case produced ten witnesses. After closure of prosecution evidence, statements of accused were recorded under section 342, Cr.P.C., wherein they totally denied the allegations levelled against them. However, they were neither ready to be examined on oath nor wished to produce defence. Learned Trial Court after hearing the parties, vide the impugned judgment, convicted and sentenced the appellants as stated above.
6. Appellants filed Criminal Appeal No, 724/2011 against their conviction while Mst. Nishat filed Criminal Revision No, 109/2013 for enhancement of sentence. Since both the appeal and revision have been filed against one and same judgment, therefore, we intend to dispose of the same through this single judgment.
7. Learned counsel for the convict-appellants argued that it is unseen occurrence and Mst. Nishat and PW Kamran, who claimed to be eye-witnesses of the occurrence, have been procured and their testimony is not confidence inspiring. He argued that both the eyewitnesses are close relative of the deceased and there is no independent corroboration. He next argued that medical evidence is in conflict with ocular account because according to Medical report the injury has been received from back side of the skull while complainant PW-5 stated that the deceased received injury from front side. He argued that no empty has been recovered from the spot in spite of the fact that both the accused were charged for firing at the deceased. He argued that the trial Court has not scrutinized the evidence of prosecution witnesses in accordance with recognized principles of appreciation of evidence available on record rather based its judgment on the basis of conjecture and surmises, therefore, the impugned judgment of conviction is against the law and without any cogent evidence, as such, the same is liable to be set aside and the appellants be acquitted of the charge.
8. On the other hand learned AAG and counsel for the complainant argued that the appellants have been charged directly in the FIR, which is supported by the testimony of complainant PW-5 and eyewitness, Kamran (PW-6), medical evidence, recovery of blood stained earth from the spot, blood stained garments coupled with motive. They argued that the prosecution proved its case against the convict-appellants beyond any shadow of doubt and further submitted that, though, there were minor discrepancies in the evidence of prosecution but the same were not fatal to the prosecution case being of trivial nature. They supported the conviction and sentence awarded to the convict-appellants, however, submitted that the appellants had committed brutal murder of an innocent boy, therefore, their conviction may be enhanced from life to death.
9. We have considered arguments advanced by learned counsel of the parties and gone through record with their valuable assistance.
10. Perusal of file would reveal that entire case of the prosecution hinges on ocular account furnished by Complainant Nishat (PW-5), her son Kamran (PW-6), medical evidence and motive.
Since the vital role is that of the ocular account, therefore, in our view, we would like to discuss it by making careful appraisal to draw conclusion as to whether their presence on the spot at the time of occurrence have been established by the prosecution and whether their testimony is credible and believable. No doubt, Complainant (PW-5) is mother of the deceased while Kamran (PW-6) is the son of the complainant and brother of the deceased. True that evidence of a family member cannot be discarded merely on the ground of his close relationship with the deceased provided the same rings true and find support from the circumstantial evidence but in the instant case testimony of ocular account is not confidence inspiring. According to prosecution story, the occurrence took place on 28-8-2010 at 14-45 hours while its report had been lodged at 15.30 hours whereas distance between place of occurrence and hospital is 1/2 k.m. Kamran (PW-6) deposed that distance between place of occurrence and Kalu Khan could be covered within ten minutes, as such, there is delay in lodging of the report. We have perused the contents of Murasilla wherein at line of No, 5, the time of occurrence has been changed into 14.45 hours, however, there is no signature or initial of the scriber over it, which creates doubt regarding time of occurrence. There are also material contradictions in the statements of Nishat (PW-5), Kamran (PW-6), Medical Officer Shad Ali (PW-8) and Noor Ali Khan (PW-9). Kamran (PW-6) stated that his statement was recorded by the Police in Kalu Khan's Hospital at the time of report. Complainant (PW-5) also stated in his statement that statements of Aziz Khan and Asal Sher were recorded by the police in the hospital in her presence, however, PW-7, who has drafted the Murasilla, negated their statements and stated that except the complainant Mst. Nishat he has not recorded the statement of any other person in the hospital. Investigating Officer (PW-9) deposed that he inspected the spot on 23-8-2010 in presence and pointation of complainant and PW Kamran but complainant in her statement stated that after making report she never met with the Police while PW Kamran stated that after making report he met with the police on second and third day of the occurrence in his house. The above discussion lead one to the conclusion that the report has been lodged after preliminary investigation and that the occurrence has not taken place in the manner and style as stated by the eye-witnesses.
11. The medical evidence is also in conflict with ocular account. According to medical report the deceased was hit from the back of the skull while PW Nishat stated that the deceased was hit from front side. Perusal of record would reveal that two persons are charged for single injury. In Barkat Ali's case reported in 2007 SCM R 1812 it has been held that oral evidence to the extent of its inconsistency with medical evidence could not be accepted. It has also been held in Abdul Subhan's case PLD 1994 SC 178 that if medical evidence leaves room for doubt, benefit of that doubt should go to accused and not to prosecution.
12. The site plan reveals that there was maize crop of man's height on the spot. According to contents of reports and statements of the PWs the accused came out from the maize crop and opened firing at the deceased. It does not appeal to a prudent mind that when there was a chance for the accused to hide them in the maize crop Olen what circumstances compelled them to show their identity before the PWs. It is the case of the prosecution that both the appellants made indiscriminate firing at the deceased while the Medical Officer found a single fire arm injury on the person of deceased but not a single empty has been recovered from the spot, thus, in absence of empties from the spot, the responsibility of murder of the deceased could not be saddled on any of the two accused. Complainant stated in her statement that statements of Aziz Khan and Asal Sher were recorded by the police in Civil Hospital, Kalu Khan but they were not produced before the Trial Court. No doubt, medical report shows that the deceased died due to fire arm injury but medical evidence by itself without further corroboration could not connect accused with crime, therefore, the same is of no use to the prosecution. It is settled principle that corroborative piece of evidence is meant to test the veracity of ocular evidence. Both corroborative and ocular testimonies are to be read together and not in isolation. Reliance is placed on case of Noor Muhammad. v. The State 2010 SCM R 97 .
13. 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 favor of the accused. Reliance in this regard is placed on case Muhammad Khan and another v. The State 1999 SCM R 1220. The evidences available on record are not of such a character which could be relied upon to convict a person on a capital charge as the testimony of eyewitnesses are having material contradictions and doubts and benefit of such contradictions and doubts would go to the accused persons. It has now been settled that for giving benefit of doubt to an accused, there need not be a number of circumstances to prove the innocence of accused; even single circumstance creating reasonable doubt is sufficient for the acquittal of an accused. It is a golden principle of law that to err in acquittal is better than to err in conviction. It is also saying of the Holy Prophet Muhammad (P.B.U.H) that mistake of Qazzi (Judge) in releasing a criminal is better than his mistake in punishing an innocent. As the prosecution has failed to prove the guilt against the appellants beyond any shadow of doubt, therefore, their conviction cannot be maintained.
Resultantly, while extending the benefit of doubt, we accept the appeal filed by the appellants- convicts by setting aside their conviction and sentence; acquit them of the charges levelled against them. They be set free forthwith, if not required in any other case. Similarly, criminal revision for the enhancement of sentence is also dismissed.
These are the detailed reasons for our short order of even date.