' ASSADULLAH KHAN CHAMKANI, J.---This Criminal Appeal is directed against the judgment dated 30-6-2011, rendered by learned Additional Sessions Judge, Charsadda at Tangi, whereby he convicted appellant Mir Alam under section 302(b), P.P.C. For committing murder of Waris Khan deceased and sentenced him to undergo imprisonment for life and to pay Rs,2,00,000/-, as compensation to LRs of deceased in terms of section 544-A, Cr.P.C. Or in default thereof to undergo 6 months' S.I. Further, in case FIR No,1104 dated 27-11-2002, under sections 302/324, P.P.C. At Police Station Tangi, Charsadda.
2. The prosecution case as unfolded in First Information Report is that on 27-11-2002 at 1445 hours, complainant Amroz Khan (P.W.8), in company of his injured son Waris Khan, reported to Shah Jehan Khan, A.S.I. (PW.5), in casualty of Tangi hospital, that on the fateful day he along with his deceased son was present in their shop situated in village Nemay Dhaki. At about 1400 hours, Mir Alam (appellant-convict herein), duly armed with 30 bore pistol came there and opened fire at them with intention to do them away, resultantly, his son Waris Khan got hit on his head, who was shifted to hospital in injured condition while he remained unhurt. Motive behind the occurrence is stated to be an altercation between the accused and deceased few days prior to the occurrence.
Report of the complainant was incorporated into murasila Exh.A/1, on the basis of which FIR was registered under section 324, P.P.C. Shah Jehan Khan, SI (PW.5) prepared injury sheet of injured and referred him to medical officer for treatment. Later on, on the same day, injured succumbed to the injuries in LRH, Peshawar, hence, section 324, P.P.C. Was substituted with section 302, P.P.C.
3. Bahadar Sher Khan, A.S.I. (now dead), proceeded to the spot, prepared site plan Exh.PB on the pointation of eye-witnesses Amroz Khan and Ghawas Khan. During spot inspection he secured bloodstained earth vide memo Exh.PW.3/1, two empties of .30 bore Exh.P.1 from the place of accused and a spent bullet P.2 from the wall near the place of injured vide memo Exh.PW.3/1. Amroz Khan complainant produced him the last worn bloodstained garments of the deceased which he took into possession vide memo Exh.PW.6/1. He initiated proceedings under sections 204 and 87, Cr.P.C. Against the accused and sent the bloodstained articles to the F.S.L. For Serologist report.
After completion of investigation complete challan in terms of section 512, Cr.P.C. Was submitted against the accused.
4. On arrest of the accused, supplementary challan was submitted against him before the 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 thirteen witnesses while statement of Bahadar Sher Khan, A.S.I., recorded during proceedings under section 512, Cr.P.C. Was transposed to the present trial due to his death. On closure of the prosecution evidence, statement of accused/appellant was recorded under section 342, Cr.P.C. Wherein he denied the prosecution allegations and professed his innocence. He, however, neither wished to be examined on oath as his own witness under section 340(2), Cr.P.C. Nor opted to produce evidence in defence. On conclusion of trial, learned trial court after hearing both the sides, convicted and sentenced accused/appellant, as mentioned-above hence, this appeal.
5. Learned counsel for the appellant/convict argued that appellant is innocent and has been implicated falsely in the case on mere suspicions; that complainant Amroz Khan PW.8 and Ghawas Khan are not the eye-witnesses of the incident rather they have been procured later on, being closely related to the deceased; that their testimony is neither consistent with each other on material aspects of the occurrence nor does it get corroboration from the site plan, medical evidence as well as other circumstances of the case; that as per ocular account, the occurrence took place inside the shop but no blood has been recovered therefrom, rather some blood has been secured outside the shop by the I.O. Which negates the crime venue; that complainant just to justify his presence on the spot has advanced a concocted story that he had taken lunch to deceased at the relevant time and was present there in the shop but his stance has been falsified by PW.9 Ghawas Khan who deposed that the occurrence took place in the month of Ramzan at about 2 p.m. So question of taking lunch in the month of Ramzan does not arise; that even if for the sake of arguments it is considered that deceased was not with the fast, the I.O. Has not recovered any utensil/lunch box, meal etc from the spot, nor complainant has produced the same nor shown in the site plan. He further argued that medical evidence i,e, autopsy report also negates the ocular version wherein the stomach of the deceased has been found empty; that escape of the complainant being in close proximity with the deceased is highly improbable; that PW Ghawas Khan has been introduced later on as an eye-witness of the incident being close relative of the complainant; that initially Jalat Khan was mentioned as father's name of deceased then injured in injury sheet and medico legal report which proves that both the alleged eye-witnesses were neither present on the spot nor in the hospital that's on their arrival, later on, the father name of the deceased was rectified by making cutting therein; that learned trial court has erred in law while recording conviction of the appellant under section 302, P.P.C. On the basis of testimony of the alleged eye-witnesses, whose testimony has been disbelieved to the extent of charge under section 324, P.P.C. That prosecution case is pregnant of doubts, benefit of which is to be extended to the appellant and he be acquitted of the charge.
6. Conversely, learned counsel for the complainant while controverting the arguments of learned counsel for the appellant contended that accused/appellant, is directly and singularly charged in a promptly lodged report in a broad day light occurrence; that straightforward ocular account of two eye-witnesses, who had no ill will or grudge with the accused, get corroboration from medical evidence, site plan, recovery of crime empties, bloodstained earth from the spot and bloodstained garments of the deceased coupled with positive FSL report as well as noticeable unexplained abscondence of the accused. He further argued that on the basis of mere relationship of the PWs their straightforward and confidence inspiring testimony cannot be discarded; that by now the principle of falsus in uno falsus in omnibus has been done away with rather the Courts while appreciating evidence, apply the principle of sifting the grain from the chaff. He went on to say that the impugned judgment of the learned trial court being well reasoned and based on proper appraisal of evidence is not open to any interference by this court.
7. Learned A.A.-G. Adopted the arguments of learned counsel for the complainant, supported the impugned judgment and sought dismissal of the appeal.
8. We have considered the respective submissions of learned counsel for the parties and perused the record with their able assistance.
9. No doubt, this is a case of single accused who is charged for the murder of deceased Waris Khan and attempting at the life, of the complainant Amroz. Though the Hon'ble Supreme Court has observed in so many pronouncements that substitution of single accused in a murder charge is a rare phenomenon but the apex court at the same time has also held that for recording conviction of an accused charged singularly for murder, there must be ocular account of unimpeachable character, A trustworthy and confidence inspiring, corroborated by other material circumstantial evidence. Similarly, the apex court in case titled, "Dr.Lsrar ul Haq v. Muhammad Fayyaz and another"
(2007 SCM R 1427) has held 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. In the instant case, the ocular account has been furnished by Amroz Khan (PW.8), father and Ghawas Khan (PW.9), close relative of the deceased. No doubt, testimony of both these witnesses cannot be discarded on their mere close relationship with the deceased provided the same is trustworthy, confidence inspiring and find corroboration from other strong circumstances of the incident. It is settled law that an eyewitness who claims his presence at the spot must satisfy the mind of court through some physical circumstances or through some C corroborative evidence in support of his presence at the spot.
10. Keeping in mind the above principles we have to evaluate the ocular account of PWs Amroz Khan and Ghawas Khan. Amroz Khan appeared as PW.8. In his examination-in-chief he reiterated the contents of his report but showed his ignorance about the motive. He deposed that motive for, the occurrence was not known to him. Some altercation might have taken place between his son and the accused due to quarrel over the children. While-in his report he has categorically mentioned motive as an altercation few days prior to the incident. A look over his report depicts that he has not stated a single word about witnessing the occurrence by PW Ghawas Khan but in his court statement just to bring the case in line with PW Ghawas he deposed that occurrence was also witnessed by PW E Ghawas Khan, which amounts to dishonest improvement. In his report PW Amroz Khan stated that he and his deceased son were inside the shop when the accused came there and opened fire at them. In his cross-examination he has reiterated the same version by deposing they both were inside the shop, but his statement does not find corroboration from the site plan Exh.PA, which has been prepared at his instance, wherein F no blood has been secured from inside the shop, rather some bloodstained earth has been recovered from outside the spot at point No 1. No trail of blood has been observed from inside the shop till point No,1 i,e, outside the shop nor shown in the site plan. Similarly, the complainant has not deposed about movement of the deceased in injured condition from inside the shop till point No,1 but he in order to bring in line the case with the site plan, in cross-examination by making dishonest G improvement deposed that after receipt of the injury, the deceased went outside the shop and fell down there. He further deposed that he with the help of other co-villagers picked him up but his clothes were not smeared with the blood of the deceased then injured; that some stains of blood were oozing from the injury of the deceased and they had wrapped the wound of the injured with Chadar which sucked most of the blood. In the circumstances, non smearing the clothes of PW Amroz with the blood of the deceased does not appeal to mind because he admits oozing of blood from the wound of the deceased at that moment. The chadar/cloth sheet with which the wound of the deceased then injured was allegedly wrapped has not been produced by him before the I.O., which was a material piece of evidence for establishing his presence on the spot. Besides, PW Amroz despite being in close proximity with his deceased son inside the shop has not received any injury despite the fact that he admits in cross-examination that accused exhausted full magazine by making upon them, which does not appeal to a prudent mind. To justify and prove his presence PW Amroz had advanced purpose of his visit to the shop, as taking of lunch to the deceased, but Ghawas Khan (PW.9) deposed in cross-examination that the occurrence took place in the month of Ramzan, so taking of lunch in the month of Ramzan at Pasheen time/2 p.m. Is highly improbable.
Had the occurrence that of near evening time, then one could presume that PW Amroz might have taken meal to the deceased for opening fast. Medical evidence also negates the stance of complainant wherein the stomach of the deceased has been found empty, meaning thereby that he was in fast and had not taken any meal/lunch. Perusal of remaining cross-examination of PW Amroz Khan reveals that he does not know about some material aspects of the incident, such as who brought the vehicle to the spot, after how much time the police reached the hospital.
11. Ghawas Khan (PW.9) introduced himself as eye-witness of the occurrence as he is not cited as an eye-witness in initial report. Even then, if one peruses his testimony, he would find it not consistent with the testimony of PW Amroz on material aspects of the occurrence. He also claims to have shifted the deceased with PW Amroz to hospital in which process his clothes would have smeared with the blood of the deceased but he has not produced the same to the I.O. To prove his presence on the spot.
12. Yet there is another aspect of the case which creates serious doubts about presence of both the alleged eye-witnesses with the deceased then injured on the spot at the time of occurrence, shifting him to the hospital and at the time of his medical examination. In injury sheet Exh.PW.1/1 father's name of deceased then injured is mentioned as "Jalat Khan" instead of Amroz Khan. Similar is, the position of medico legal report. Had PWs Amroz Khan and Ghawas Khan present with the deceased then injured on the spot and then accompanied to the hospital, they would have disclosed the accurate father name of the deceased then injured to scriber of the report and medical Officer. This circumstances of the case strongly indicates that both the PWs were not present with the deceased at the time of incident and he was shifted to the hospital by co- villagers, where he was administered first aid before report and later on when the presence of complainant was procured, correction was made in father's name of deceased then injured by replacing "Jalat Khan" with Amroz Khan. Had the PWs present with the deceased at the very first instance they would have disclosed the correct father's name of the deceased then injured.
13. In view of the above discussion we are of the firm view that both the alleged eye-witnesses have badly failed to establish their presence on the spot and to prove the occurrence in the mode and manner as alleged in the FIR. The peculiar facts and circumstances of the case strongly suggest that none of the two PWs has witnessed the occurrence, so their testimony which otherwise is suffering from material contradictions and discrepancies getting no corroboration from the site plan, medical evidence and other circumstances of the incident, cannot be believed and relied upon for recording conviction. More so, the learned trial court has given self clashing findings and has drawn unfair conclusion from the evidence on record.. It has disbelieved the charge of prosecution against the accused of attempting at the life of Amroz Khan complainant and acquitted him from the said charge, which would be a fatal blow to the prosecution case, as the testimony of the two alleged eye-witnesses in this regard has been disbelieved which in other words lead us to the conclusion that while disbelieving this part of story, the presence of the alleged eye-witnesses on the spot stands negated.
14. No weapon of offence has been recovered from direct or indirect possession of the appellant nor he has confessed his guilt before the competent court of law. Moreover, mere recovery of crime empties, blood from the spot and the bloodstained garments of the deceased in absence of direct and substantive evidence which has been disbelieved by us would not be sufficient to prove the guilt of the appellant, as these pieces are always considered as corroborative pieces of evidence which are taken along with direct and substantive evidence and not in isolation. In this regard reliance can be placed on 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 ljaz Ahmed's case (1997 SCM R 1279 and Asadullah's case (PLD 1971 SC 541). It has been held by the Hon'ble Supreme Court in case titled, "Saifullah v. The State" (1985 SCM R 410) and Noor Muhammad's case (2010 SCM R 97), that when there is no eye-witness to be relied upon, then there is nothing, which can be corroborated by the recovery. Similarly, in case titled, "Riaz Masih v. 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. Same view has been expressed by the apex Court in Saifullah's case (1985 SCM R 410).
15. Motive alleged, on one hand remained unproved, while on the other hand, it does not appeal to a prudent mind that on a petty matter of altercation, one would prompt to take the life of other.
Prosecution though is not called upon to establish motive in every case, yet once it has set up a 'motive and failed to establish, it would be the prosecution L to suffer the consequence and not defence. In this regard reference may be made to case titled, "Hakim All and 4 others v. The State and another" (1971 SCM R 432) and case titled, "Noor Muhammad v. The State and others" (2010 SCM R 97).
16.So far as 'abscondence of the appellant is concerned. No' doubt, proceedings under section 512, Cr.P.C. Were initiated and completed against him, however, the appellant has denied 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 place on case titled, ,"Muhammad v. Pesham Khan (1986 SCM R 823) and case titled, "Rohtas Khan v. The State" (2010 SCM R 566) .
17.The crux of the above discussion is 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 is enough for acquittal of the accused. Reliance placed on case titled, "Muhammad Zaman v. The State and others" (2014 SCM R 749). Basically, it is the principle enshrined in Islamic jurisprudence, fourteen hundred years ago that "it would be better to acquit hundred culprits than convicting one innocent soul." Which has now been transformed into the form of the principle that, "acquitting by error would be better than convicting by error". The said commandment has evolved into the theory of benefit of doubt, which, invariably, is extended to the accused for safe administration of criminal justice. In the instant case, the prosecution evidence is highly discrepant, full of infirmities and doubts which escaped the notice of the Trial Court and thus reached to an erroneous conclusion by holding the appellant guilty of the offence. Resultantly, this appeal is allowed. Conviction and sentence of the appellant recorded by the learned trial court vide impugned judgment are set aside and he was acquitted of the charge. He be set at liberty forthwith, if not required in any other case.
18.. These are reasons of our short order of even date, which is reproduced below:- "For reasons to be recorded later on, this appeal is allowed.
' The conviction and sentences of the appellant, namely, Mir Alam, awarded to him in case FIR No,1104 dated 27.11.2002 under sections 302/324, P.P.C., Police Station Tangi by learned Additional Sessions Judge Charsadda at Tangi vide impugned judgment dated 30-6-2011, are set aside and he is acquitted of the charges levelled against him. He be released from jail forthwith, if not required in any other case".