MRS. IRSHAD QAISER, J.---The facts of the case as narrated in the F.I.R. And in the statements recorded in the Court are that on 1-4-2008 at 2015 hours, one injured Muhammad Sabir was taken to casualty, Lady Reading Hospital, Peshawar, by the complainant, Darwish Khan, who reported that on the day of occurrence at 18.30 hours, he along with his brother, Jannas Khan, and his nephew, Muhammad Sabir, (injured) were proceeding to their house from the 'fields, when they reached near the house of Hazratullah, situated in village Daulat Pura Bamozai, Ghafar Ali, appellant herein, duly armed, was standing there. As soon as, he saw the complainant party, he started firing at them with an aim to kill, as a result of which, the nephew of the complainant sustained injuries whereas the complainant and his brother Janas Khan were escaped unhurt. Motive for the occurrence was stated to be the previous enmity. The occurrence was witnessed by his brother Janas Khan and his nephew besides the complainant. The incident was reported in the casualty which culminated in the registration of a case against the appellant under section 324, P.P.C., vide F.I.R. No.143 dated 1-4-2008 in Police Station Batagram, District Charsadda.
2. After the arrest of the appellant and completion of the investigation, he was forwarded to the learned Additional Sessions Judge Shabqadar, for trial who on its conclusion convicted and sentenced him to undergo seven years' R.I. With a fine of Rs.50,000 or in default to undergo three months' S.I. Under section 324, P.P.C. And to seven year imprisonment and to pay Rs.75,443 as Arsh, which is 10% of Diyat or in default to suffer simple imprisonment till Arsh is paid in full under section 337-A(iii), P.P.C., with the benefit of section 382- of the Cr.P.C., vide judgment dated 19-7-2011.
However, both the sentences were directed to be run concurrently, hence this criminal appeal.
3. Learned counsel appearing on behalf of the appellant contended that the Prosecution has not come forth with whole truth as it has suppressed many facts proving that the occurrence has not taken place in the manner described by the Prosecution. He next contended that the impugned judgment and order of conviction is contrary to the evidence and material on record. He further contended that the Prosecution evidence being contradictory and inconsistence in its nature, cannot be relied upon. The Prosecution, learned counsel added, is miserably failed to prove its case beyond any shadow of reasonable doubt and as such by giving the benefit of doubt, the appellant is entitled to be acquitted of the charge, particularly when the complainant party failed to prove the motive, that in the F.I.R. No detail of weapon has been given. Learned counsel further contended in the site plan .12 bore gun was introduced to make the prosecution case in line with the medical evidence. The learned counsel argued that the statement of injured was recorded after 35 days of the occurrence and even no proper charge had been framed against the accused. He lastly contended that the appellant has been falsely and mala fidely implicated in the case on suspicion and that the conviction and sentence recorded by the learned trial Court is liable to be set aside.
4. As against that, the learned counsel appearing on behalf of the State assisted by the learned counsel for the complainant argued that the charge against the appellant has been proved beyond doubt when it has been supported by eye-witness whose presence on the spot besides being natural is supported by the injuries on the person of nephew of the complainant. He next contended that the occurrence was promptly reported; that single accused was charged for the offence coupled with the fact that the ocular account furnished by the witnesses is in line with the medical evidence and the entries made in the site plan, therefore, the charge against the appellant stands proved beyond any shadow of reasonable doubt and that the finding of conviction recorded by the learned trial Court being based on proper appraisal of evidence is not open to any interference.
5. I have gone through the record carefully and considered the submissions of the learned counsel for the parties.
6. The Prosecution to prove its case examined as many as nine witnesses. Shad Muhammad, ASI, P.W.1, is the marginal witness to the recovery memo. Exh.P.W.1/1 by which the I.O. Recovered and took into possession some blood-stained grass from the place of injured. Tilawat Shah Khan, ASI, P.W.2, registered the F.I.R. On the receipt of murasila. Azeern Khan, DFC, P.W.3, executed the warrant under sections 204 and 87 of the Cr.P.C. Dr. Muhammad Shamim Khan, CMO, P.W.4, examined the injured Muhammad Sabir. Muhammad Gul (Rtd.) SI, P.W.5, is the author of murasila. Darwish, complainant and Muhammad Sabir, victim, P.Ws.6 and 7 furnished ocular account of the occurrence. Khadim Shah Khan, S.I. P.W.8, was entrusted the investigation after the registration of the case. Siraj, P.W.9 is the marginal witness of the pointation memo. Exh.P.W.8/6.
7. It is settled principle of law that conviction must be based on unimpeachable evidence and certainty of guilt and any doubt arising in the Prosecution case must be credited in the account of the accused. In order to prove its case, Prosecution relied upon different pieces of evidence including ocular account furnished by Darwesh, P.W.6 and Muhammad Sabir P.W.7., medical evidence, recoveries motive, pointation memo. And abscondence of accused, which are essential to be discussed for the just decision of the case. P.W.1 Shad Muhammad, ASI, is the marginal witness to the recovery memo. Exh.PW.1/3, vide which the I.O. Took into possession blood stained garments of the injured having corresponding cut marks in his presence. It is quite strange that none of happenings of corresponding cut on the garments of the victim has been mentioned in the. Medico legal report.
8. Dr. Muhammad Salim Khan, CMO who was examined as P.W.4 stated that he had examined Muhammad Sabir on 1-4-2008 at 8 p.m. And found the following injuries:--
(1) Has got about 2 CM firearm entry wound over left neck below the right ear.
(2) Fire-arm entry just below the first entry 2 cm in size.
(3) Fire-arm exit over right side chin about 2 inches open wound. Profuse bleeding from the wound.
9. The injured was also examined by Dr. Sher Afzal and Dr. Zameen on 1-4-2008. They opined that there is also a fracture mandible bore. They in their report Exh.P.W.4/1 confirmed the wound to be grievous.
10. When the injury was shown on the left neck below the right ear by the Doctor and no other injury has been shown on any other part of the body, the corresponding cut on the garments of the victim taken into possession vide Exh.P.W.1/3 is not understandable. The investigation of the I.O. And the medical report contradicted each other. If the report of the Doctor showing that the wound was caused on the face of the victim conceded to be correct for a while, then the exhibition of Exh.P.W.1/3 appears to be conducted unfairly. The recovery. Memo. Exh.P.W.1/3 by which he took into possession blood stained garments of the deceased having corresponding cut marks is not in line with the medical evidence, when the wound shown by the Doctor was caused on the face of the victim. It is also human common observation that if an injury caused on the face of a person through .12 bore gun, the pallet should be spread and caused injuries on whole face and the face should not partially disturbed or in the case in hand the injuries must be more than two entry wounds. Likewise, the stamps of injuries on the person of the victim may prove his presence on the spot but these injuries, in no way, certify that whatsoever is stated by him or his companion is the whole truth.
11. Ocular account is furnished by P.W.6 and P.W.7. P.W.6 stated that on 1-4-2008 at 1830 hours, he along with his brother Janis and nephew Muhammad Sabir were coming from their field to their house on foot and when they reached to the place of occurrence, accused Ghafar Ali duly armed with deadly weapon was standing there. He on seeing them started firing at them which resultantly injured the nephew/victim while they were escaped unhurt. In cross-examination this P.W.
Admitted that they had visited to their field only for the purpose of walk and they were not in possession of any agricultural instrument at the time of occurrence and so is the statement of P.W.7. He admitted in his cross- examination that they were proceeded to their field at 2-30/3-00 p.m. For the purpose of walk and hence they were not in possession of any agricultural instrument.
The statements of P.Ws.6 and 7 did not tally with the assertion of the F.I.R. In the F.I.R. The occurrence has been shown, to have taken place at 1830 hours. It does not appeal to the wisdom of a prudent man that how they continued their walk for about 3-'/2/4 hours. It is also not the case of the complainant that they have gone to their field for some work to substantiate their assertion because no agricultural instrument's have been recovered from the spot. This was the reason that the complainant could not authenticate his presence at the time of occurrence.
12. Some other revealing disclosures made by the P.W.6/ complainant by admitting different blood feud of his family with others in the locality which militate against the Prosecution case and cast a thick cloud of doubt over the assertion made by him in his statement and in the F.I.R. This P.W. Also admitted in his cross-examination the enmity with the complainant party 18/20 years ago which according to him has not so far been settled. He stated that the accused was engaged with his niece and his niece is still present in their house on account of relation dispute but P.W.7 admitted this fact only to the extent that 18/20 years ago there was a dispute between them and the accused party but that dispute has already been settled ten years back. These facts reveal that there is no blood feud between the parties and there is no motive for the accused to commit the offence.- P.W.7 also admitted that one Gul Zaman was charged for the murder of Kamil (son of complainant). Thus the statement of P.W.7 negates the assertion furnished by P.W.6 in statement and in the F.I.R. This P.W. Could have thrown some light on the Prosecution case but his statement, being full of ,afterthoughts and improvements, inevitably leads to the inference that he was not present on the scene of occurrence and the occurrence has not taken place in the manner as described in the murasila and F.I.R.
13. According to the Prosecution, the I.O. Prepared pointation memo. At the instance of the accused in the presence of two private witnesses, yet one of them Siraj in his cross-examination admitted himself to be the cousin of the complainant. This narration also raises strong suspicion as to the complicity of the appellant in the crime. The record further shows that during the course of pointation, no recovery or discovery has been effected. In such circumstances the pointation memo. Has no legal worth under Article 40 of Qanun-e-Shahadat, 1984.
14. According to the Prosecution, the appellant has remained absconded for sufficient long time but even abscondence would do little to properly medicate the flaws, in the Prosecution evidence, when it is found to be discrepant.
15. Strange enough that the accused has been convicted and sentenced under section 337-A(iii), P.P.C. By the learned trial Court, yet no charge has been framed in this behalf against the appellant.
Thus the conviction and sentence under this section of law cannot be sustained under any canons of law.
16. It thus is a case which appears to have been stuffing with manipulations and distortion from the very start. What is to be rejected and what is to be relied upon, what is to be not needed and what is to be desirable cannot be preferred from this collection of mendacity and half-truths. It would be rather unsafe to rely on this nature of evidence in a case involving such controversy. I am, therefore, constrained to hold that the charge against the appellant cannot be held to have been proved beyond any shadow of reasonable doubt. I, therefore, do not feel persuaded to agree with the finding of conviction recorded by the learned trial Court, especially when the Hon'ble Supreme Court while dealing with a similar situation held that a single doubt, if found reasonable, would be sufficient for the acquittal of the accused. The judgment rendered in the case of Kamal Din v.
Muhammad Sharif (1987 SCM R 1264) can well be referred in this behalf. I, thus, do not think that the case against the appellant can be said to have been proved beyond any shadow of reasonable doubt. When that being the case, it would not be in accord with safe administration, of justice to maintain conviction of the appellant on this quality and quantity of evidence,
17. For the reasons discussed above, I allow this appeal, set aside the convictions and sentences recorded by the learned trial Court and acquit him of the charge. He be set free forthwith, if need not in any other case.