' SYED AFSAR SHAH, J.---Impugned herein is the judgment dated 19.4.2011 rendered by learned Additional Sessions Judge-III, Nowshera, whereby the accused-appellant was convicted under section 302(b), PPC and sentenced to imprisonment for life with compensation of Rs, 11 lac payable to the legal heirs of the deceased, and in default thereof it was directed by the learned Trial Court that the convict shall remain behind the bars till the payment of compensation amount to the legal heirs of the deceased. Benefit of section 382-B, CrPC was also extended to the convict-appellant.
2. The story of prosecution as disclosed in the FIR (Ex.PA) which has been registered on the basis of murasila (Ex. PA/1) may briefly be narrated as follows:--- On 21.9.2006 Salim Khan, ASI to police station Aza Khel Nowshera (PW-6) was on gusht of the Illaqa when got information about the dead-body lying in the mortuary of civil hospital Nowshera Kalan and hence he rushed to there where he found body of the deceased Ikramullah. Noor Samin (PW- 7), brother of the deceased Ikramullah, made him a report to the effect that on the day of occurrence he and his brother were on way to their village Shaikhi from Spin Kanari and when reached near to a thoroughfare, accused/appellant Meraj duly armed with deadly weapon started firing at his brother, with which he was hit and seriously injured. He was taking his injured brother to the hospital in a Datsun Pick-up but on way he succumbed to the injuries. Motive behind the offence as stated by the complainant was that some. 2/3 months prior to the occurrence there was an oral altercation between the accused and deceased.
3. Regarding the delay in lodging the report, it is stated by the complainant that transport was not available. He has charged the accused/appellant for the murder of his brother. Above is the narration of the complainant Noor Samin in the shape of murasila (Ex.P.A/1) which was recorded by Salim Khan, ASI in the mortuary of civil hospital Nowshera Kalan, whereafter he prepared the injury sheet and inquest report in respect of body of the deceased. He also read over and explained the report to the complainant who after admitting it to be correct signed the same in token of its correctness. The murasila was dispatched to the police station concerned through FC Ghafoor Khan where on the basis of which FIR No, 346. Dated 21.9.2006 was registered against the accused/ appellant under section 302, PPC in police station Aza Khel Nowshera.
4. Investigation was started in the case and on itscompletion challan under section 512, CrPC was submitted against the appellant/accused to the Court of Additional Sessions Judge-III, Nowshera because he (accused) was absconding, however, on his arrest supplementary challan was submitted in the same Court where at the commencement of trial, the prosecution produced as many as eleven witnesses whose statements were recorded and placed on file.
' On close of the prosecution evidence, accused was examined under section 342, CrPC wherein he denied the charges, professed innocence and stated to have falsely been implicated in the case.
He also wished to produce defence and his examination on oath as required under section 340(2), CrPC.
5. Arguments heard and record perused.
6. It appears from the FIR (Ex.PA) that in this case the occurrence took place on 21.9.2006 at 1815 hours whereas the report has been lodged on the same date at 2145 hours, after a delay of three hours and thirty minutes. Noor gamin, brother of the deceased, is the complainant of the present case and he has charged the convict/appellant for commission of the offence.
' Appearing as PW-7 he has reiterated his stance which he has given in the FIR. With respect to the delay in lodging the report, he stated that it was due to the non-availability of transport. The site plan (Ex.PB) is available on file and it appears from the same that the occurrence has taken place on a thoroughfare leading from Factory Sheikhi to Spin Kanari. When the crime was committed on a thoroughfare, the non-availability of transport for about 3 hours and 30 minutes and that too in the month of September, in the circumstances, is repellent to the common sense. It is in the cross- examination of the complainant who is solitary eye-witness of the occurrence that he left the injured at the spot, went to his house, telephonically informed his cousin Hayatullah who lateron arranged for a vehicle and thereafter they proceeded to the hospital. How could one leave his brother in injured condition at the spot all alone and himself proceed to his house followed by a call on telephone to his cousin for arrangement of a vehicle. This version of the complainant is not appealable to a prudent mind and the circumstances do reveal that the crime is un-witnessed and that the complainant was not present at, the spot.
' As per version of Noor Samin, the complainant/eye witness that when he was taking his brother to the hospital, he succumbed to the injuries on the way. On the other hand, it is in the cross- examination of Doctor Younus (PW-8) who has conducted autopsy on the dead-body of the deceased that probable time between injury and death was instantaneous negating therein this version of the complainant that on way to the hospital the deceased succumbed to the injuries.
During the cross-examination, he deposed that in view of probable time between the death and post-mortem examination the deceased might have died at 1715 hours. On the other hand, as stated earlier, in this case the occurrence as per version of the complainant has taken place at 1815 hours and which fact further makes the presence of the complainant at the spot at the time of occurrence doubtful.
' ASI Salim Khan who has recorded the FIR has deposed in his cross-examination that when he went to the mortuary, he prepared the injury sheet and inquest report in respect of body of the deceased and, thereafter, recorded report of the complainant meaning thereby that the FIR/murasila was recorded after preliminary investigation and which practice has been condemned by the Honourable Supreme Court consistently.
7. According to the prosecution, motive behind the offence was that some 2/3 months prior to the occurrence there was an oral altercation between the accused and deceased. On the other hand, we have gone through the record minutely but the prosecution has not been able to prove the same even though an iota of evidence. Admittedly motive is not necessary to prove the guilt of the accused but once it is set up then the prosecution has to prove the same, failing which adverse inference has to be drawn. In a case titled Noor Muhammad v. The State and others (2010 SCMR 97) it was observed by their Lordships that the prosecution though not called upon to establish motive in every case, yet once it has set up a motive and fail to prove the same, then the prosecution must suffer the consequences and not the defence.
8. It is in the evidence that the accused/appellant after his arrest led the police party and made pointation of the venue of crime. Appearing as PW-1, Faqir Muhammad, Sub-Inspector has stated about the same fact. He prepared the pointation memo. (Ex.PW.1/2). During the cross-examination, he deposed that the place of occurrence was already in the knowledge of the local police and that nothing incriminating whatsoever has been recovered at the instance of the accused and this being the case, no sanctity could be attached with the pointation, moreso when the convict/appellant was already in the custody of the police, the venue as stated earlier was already in their knowledge.
9. In the present case, Noor Samin is the solitary eyewitness of the occurrence and being brother of the deceased he is closely related to him. In such-like scenario, the essential requirement is to determine as to whether the eye-witness is natural and whether on the spot his presence can reasonably be believed and whether his testimony is free from any intrinsic improbability, and that he being an interested witness, whether any independent corroboration is forthcoming.
' Admittedly, the testimony of an interested witness cannot out-rightly be rejected and in certain cases it can be made basis for conviction of an accused provided it lends support from other circumstantial evidence. In the absence of any corroborative evidence, the account of eye-witness even if found convincing would not be sufficient by itself to warrant conviction of the accused on a charge of murder because the prosecution is duty bound to prove its case to the hilt by producing cogent and unimpeachable evidence.
' In a case of Haji Rabnawaz v. The Sikander Zulqarnain and 7 others (1998 SCMR 25), it was observed that by their Lordships that Court in a case involving capital punishment will not base conviction of an accused solely on the testimony of an interested witness unless such evidence finds corroboration by some independent and unimpeachable evidence or circumstances in the case. Again as held in a case titled Islam Badshah, etc. v. The State (NLR 1993 Criminal 480) it has been held that:--- "evidence of an eye-witness who is branded with interestedness should 'not command respect".
10. In the present case, as stated earlier, there is a considerable delay in lodging the FIR and for which the explanation furnished by the complainant stands to no sound reason. Ref. 1995 SCMR 127.
Again keeping in view the instantaneous death of the deceased as stated by the Medico-legal Officer, the version of the eye-witness appears to be doubtful. Moreover, the motive as advanced by the prosecution is also not proved. The preliminary investigation before lodging the FIR has given another jolt to the mode and manner of the occurrence as set up by the prosecution.
11. It is settled law that the prosecution is duty bound to prove its case against the accused beyond any reasonable doubt and if any single and slightest doubt is created, benefit of the same must go to the accused and it would be sufficient to discredit the version of prosecution. It is 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 judicial mind is sufficient for acquittal of the accused. Reliance is placed on a case-law titled Tariq Parvez v. The State (1995 SCMR 1345). The same principle has been reiterated by the Honourable Supreme Court in the case of Muhammad Ikram v. The Slate (2009 SCMR 230).
' Moreover, accused is always considered as the most favourite child of law and every benefit of doubt such goes to him regardless of fact whether he has taken any plea or not. The testimony of the complainant who is brother of the deceased and solitary eye-witness of the occurrence is not sufficient to prove the charge against the convict/appellant most particularly in the circumstances when it is pregnant with A doubts. The circumstances do reveal that the crime neither appear to have taken place in the mode and manner as stated in the FIR nor has been witnessed by the complainant.
12. So far as abscondance of the appellant is concerned, in this part of the country people do abscond not because they are guilty but because of fear and torture of the police. Even otherwise, abscondance is not a substantive piece of evidence, it is corroborative piece of evidence and in cases where direct evidence fails, corroborative piece of evidence is of no avail as in the instant case where the testimony of the eye-witness has already been disbelieved. In a case titled Islam Badshah and 2 others v. The State (PLD 1993 Peshawar 7), it was held by their Lordships that abscondance can neither cure the inherent defect of the ocular account nor by itself is sufficient to sustain conviction.
13. For what has been discussed above, the prosecution case against the appellant has not been proved beyond any reasonable doubt, therefore, we accept the appeal, set aside the conviction and sentence of the appellant and acquit him of the charges levelled against him. He shall be released forthwith if not required in any other case.
' Above are the reasons for our short order of even date.
Conviction/Life Imprisonment Set Aside.