HAIDER ALI KHAN, J.--Through this single judgment, we shall dispose of instant criminal appeal as well as connected Criminal Appeal No,108-M/2014 and Criminal Revision No,28-M of 2014, as all the matters have arisen from the judgment dated 31-3-2014 of the learned Sessions Judge/Zilla Qazi, Chitral, delivered in case FIR No,92 dated 30-7-2012, under sections 302, 324, 147, 148, 149, 337-F(i), 337-F(ii), 337-F(iii), P.P.C. Of police station Koghuzi, District Chitral, whereby appellant Momin-ur- Rehman has been convicted under section 302(b), P.P.C. And sentenced to imprisonment for life with direction to pay compensation to the tune of Rs,1,00,000 to the legal heirs of the deceased under section 544-A, Cr.P.C. Or in default thereof to further undergo six months simple imprisonment. He was further convicted under section 337-F(iii), P.P.C. And sentenced to pay Rs,10,000 as Daman to injured Khalil-ur-Rahman. Benefit of section 382-B, Cr.P.C. Has been extended to him, while remaining accused have been acquitted of the charges levelled against them. Similarly, absconding co-accused Hayat-ur-Rahman has been discharged from the case.
2. Brief facts of the case are that on 30-7-2012, complainant Rahmat Zafar Shah (PW-8) reported to SHO Attiq-ur-Rahman (PW-10) on the spot, to the effect that on the day of occurrence after performing Asar prayer in the mosque, while going to his house when reached on the spot, he noticed accused Momin-ur-Rahman, Nizam-ur-Rahman, Sartajur-Rahman, Shahid-ur-Rahman sons of Hakim Khan, Hakim Khan, Abdur Rahman sons of Sawalan Khan, Hayat-ur-Rahman and Amin-ur-Rahman son of Abdur Rahman, duly armed with fire-arms, knives, spades and sticks, while forming an unlawful assembly and attacked his nephew Tariq Mahmood, as a result of knife blows of accused Mominpr-Rahman and Nizam-ur-Rahman, his nephew sustained grievous injuries while the other accused had also beaten him with spades and sticks. Complainant further alleged that rescuers Khalil-ur-Rahman and Fazal Hadi were critically injured with knife blows of other co-accused; that injured Tariq Mahmood had been shifted to DHQ Hospital Chitral, where he succumbed to his injuries. The occurrence was stated to be witnessed by Mujtahid-ud-Din, Ijaz Ali Shah and other co-villagers including Namazis. Motive setup for the crime was previous criminal cases between the parties.
3. On completion of the investigation, the case was put in Court which charged the accused for the offence to which they pleaded not guilty and claimed trial. The prosecution produced and examined as many as eighteen witnesses. On conclusion of the trial, the learned trial Court found accused Momin-ur-Rahman guilty of the charge and on conviction, sentenced him as mentioned above. Appellant has impugned his conviction in Cr.A. No,94 of 2014, while the complainant has filed Criminal Appeal No,108 of 2014 against acquittal of co-accused and Criminal Revision No,28 of 2014 for enhancement of the sentence. All the matters are being disposed of through this single judgment.
4. It is worth mentioning that cross-case vide FIR No,93 was registered on the report of Momin-ur- Rehman (the present accused/appellant), wherein accused Salahuddin, Tariq Mahmood, Irshad Mahmood, Fazal Hadi, Zaman Shah, Gulmas, Zar Aman Shah, Zafar Shah, Zahir Abbas, Mujtahid- ud-Din, Azhar-ud-Din, Akhtar-ud-Din, Afsar Khan, Shahzad Ahmad, Mubarak Shah, Ijaz. Ali Shah, Izhar Ali Shah, Abdul Hadi, Nizam-ur-Rahman, Amir Ali Shah, Khalil-urRahman, Zia-ur-Rahman, Ishaq-ur-Rahman, Mst. Shahzadi, Mst. Khalida, wife of Zaman Shah, Mst. Saira Zia, Mst. Kausar, Israr Ahmad and Saif-ud-Din were charged. In the cross-case, the learned trial Court has acquitted the accused. That judgment of acquittal has been assailed in Cr.A. No,148 of 2014.
5. We have heard the arguments of the learned counsel for the parties and also gone through the record of the case.
6. The prosecution case mainly hinges on the testimony of complainant, PW-3 Mujtahid-ud-Din, PW-4 Ijaz Ali Shah, PW-5 Khalilur-Rehman, PW-6 Fazal Hadi and PW-9 Zaman Shah, who have witnessed the occurrence. There is no denial of the fact that a cross-case vide FIR No,93 was registered by the convict-appellant and the time and spot of occurrence in both the cases is one and the same. There is also no denial of the fact that the occurrence had taken place as a result of sudden provocation which resulted in death of deceased Tariq Mahmood and injuries to both the parties.
7. In the report, the complainant has stated that all the accused duly armed with their respective weapons attacked the deceased while convict-appellant and acquitted accused Nizam-ur- Rahman gave knife blows to the deceased, but in his Court statement as PW-8, he admits in his cross-examination that people present on the spot had told him that convict B Momin ur Rahman had injured the deceased, rather he had not seen the occurrence. But the report Exh.PW 10/1 coupled with statement of PW-8 is contradictory to the statement of Ijaz Ali Shah, PW-4, wherein he omitted name of Nizam-ur-Rahman as in his statement recorded under section 164, Cr.P.C. , he stated that "accused Hakim Khan, Sartaj-urRahman and Nizam-ur-Rehman were catching hold of the deceased Tariq Mahmood, whereas accused Nizam-ur-Rehman caused a fatal blow on the chest of deceased Tariq Mahmood". The said witness goes on saying that the convict-appellant was standing by along with his co-accused, namely Shahid-ur-Rehman, Abdur Rehman and Hayat-ur-Rehman having spades and knives. On the other hand, the same witness (PW-4) in the very first sentence of the cross-examination admits that he .Was not present on the spot. Likewise, statements of eyewitnesses i,e, PW-3, namely Mujtahid-ud-Din, PW-5, Khalil-ur-Rahman, PW-6 Fazal Hadi and PW-7 Gulmas Shah are also contradictory to the report as well as C statement of complainant, PW-8. Thus, keeping in view the eyewitness account, it cannot be gathered that who had caused fatal blow on the person of deceased. Reliance can be placed on case law reported as 2009 YLR 2169 [Peshawar] Ghani-ur-Rehman- v. The State and others', wherein it has been held that: "Case of prosecution was pregnant with major contradictions and dishonest improvements and omissions---Eye-witness account by the complainant was itself contradicted by him while appearing as prosecution witness---Complainant and prosecution witness though had admitted that in the occurrence accused had sustained injuries, but in the report and in their examination- inchief, had suppressed and concealed the said injuries as well as the registration of cross-case against the complainant party---Counsel for accused had contended that alleged motive was not of the magnitude to prompt accused to commit offence of double murder---Motive by itself, however did not prove or disprove any assertion conclusively---Case of the prosecution was full of doubts and the prosecution had failed to bring home charge to accused beyond any shadow of reasonable doubt---Accused were entitled to the benefit of doubt, because it was an axiomatic principle of law that in case of doubt the benefit thereof must accrue in favour of accused as a matter of right and not of grace---Conviction and sentence imposed on accused vide impugned judgment, was set aside and accused was acquitted from the charges levelled against him and he was released from custody".
8. Now coming to the statement Investigating Officer, who appeared as PW-13. According to prosecution, while coming out from the mosque, the houses of the complainant of present case were nearer to the mosque than the houses belonging to the other party which were situated at the far end of the street, but in the statement of the Investigating Officer, it has been stated that houses of the deceased/complainant were at a distance of approximately one kilometer from the place of occurrence. He admitted in his cross-examination that during investigation of both the cases, three knives were recovered, which have been made as case property of both the cases.
This witness was unable to state as to which of the two groups the knives so recovered belonged.
As there is a cross-case, therefore, it was the primary duty of the Investigating Officer to investigate as to who was the aggressor and who was aggressed upon, but the said PW expressed his inability to categorically affirm the abovementioned fact.
9. It is further evident from the record that photocopy of site plan Exh.PW 13/4 has been placed on the police file of case FIR No,93.
10. Keeping in view all the facts and circumstances of the case, it appears that there was a free fight between the two rival groups which resulted in the death of Tariq Mahmood and injuries to both the sides for which cross-cases were registered and in both the cross-cases many persons were charged, therefore, sharing of common object cannot be taken into consideration for the purpose of conviction. Reliance can be placed on 2011 SCM R 1524 'Ansar Mahmood v. The State', wherein it has been held that: "After holding the case to be one of free fight, accused could not have been convicted for an offence under S.149, P.P.C. Because there was no common object between culprits---Charge in respect of offence under S.324, P.P.C. Read with S.149 P.P.C. Could not stick against accused because he had not been attributed any specific injury---In such case of free fight and for the same reason accused could also not have been convicted for offences under Ss.337-A(ii) and 337- L(2) P.P.C. Because it was never determined as to which particular injury, if any, had actually been caused by accused to injured victim---Supreme Court set aside conviction and sentence awarded to accused by the courts below and he was acquitted of the charge".
11. Furthermore, as stated above, that there was free fight between the rival groups, therefore, right of self-defence cannot be ruled out at this stage. Reliance can be placed on 2001 SCMR 45 'Mushtaq Hussain and another v. The State', wherein it has been held that: "Accused if not had raised the plea of self-defence during trial either in his statement under S.342, Cr.P.C. Or at the time of cross-examination of prosecution witnesses, Court however, could infer the same from the evidence led during trial if it was tenable---As benefit of cross-version was given to accused of cross-case, same would be extended to both the accused particularly when two eye- witnesses were injured but had charged the acquitted co-accused as well for causing injuries to them---Both the courts below had found that there was a cross-case and no definite finding could be given about aggression made by both the accused, therefore, they were entitled to benefit of doubt---Convictions and sentences awarded to both the accused were set aside and they were acquitted of the charges":
12. Besides the above, the postmortem report Exh.PM, does not find support from the ocular account furnished by the eye-witnesses and recoveries effected from the spot.
13. In view of the above factual position and the perusal of record, we are of the firm opinion that there are material contradictions/ improvements in the statements of eye-witnesses, which could not be relied upon for the purpose of conviction. The investigation has also not been up to the mark and the vital question for the investigation was to ascertain as to which of the rival groups was aggressor, but the whole investigation is silent about this vital issue. Therefore, we find that the accused has become, in the circumstances of the present case, entitled to the benefit of the doubt, therefore, we allow Cr.A. No,94 of 2014 and acquit accused Momin-ur-Rehman of the charge levelled against him. He is in custody and be set free at once if not required in any other case. While Cr.A. No,108-M of 2014 and Cr.R. No,28-M of 2014 are dismissed.
14. Above, are the reasons of our short order of even date.