ABDUL LATIF KHAN, J.---Convict-appellant, Sahibzada was tried by learned Additional Sessions Judge/Izafi Zilla Qazi, Wari, Dir Upper, in case FIR No, 353 dated 23-10-2005, registered under sections 302/324/337-D/34, P.P.C., at Police Station, Wari. After conclusion of trial, appellant was found guilty for the offence under section 302(b), P.P.C. And sentenced him to undergo for life imprisonment and also to pay Rs, 5,00,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of deceased or in default thereof to undergo SI for six months. He was further convicted and sentenced under section 324, P.P.C. To undergo ten years' RI and also to pay fine of Rs, 50,000 or in default thereof to undergo SI for six months. He was also convicted and sentenced under section 337-D, P.P.C. For two years' RI for causing injury to Muhammad Zada and also to pay Rs, 50,000 as Arsh to him or in default of payment of fine to undergo. SI for six months. All the sentences were directed to run concurrently, however, benefit of section 382-B, Cr.P.C. Was extended to him. Complainant Ihsan Ullah also filed Criminal Revision No, 19/2011 for the enhancement of sentence. Since both the criminal appeal and a criminal revision have been filed against a common judgment, therefore, we intend to dispose of the same through this single judgment.
2. Ihsan Ullah (P.W.1), in injured condition, lodged a report to Muzakar Shah, S.I., (P.W.3), in civil hospital, Wari, that on 23-10-2005 he along with his father Sahib Zada, uncles Sher Zada and Muhammad Zada were busy in making maize haystack in their land near their house, when at 15.00 hours Raham Zada, the absconding co-accused, and Sahib Zada, the present appellant, came duly armed, exchanged hot words with them over the landed property, due to which the accused started firing at them, as a result of which Sahib Zada and Sher Zada were hit and died on the spot while he and his uncle Muhammad Zada received injuries. Motive for the offence was dispute over landed property. The occurrence was stated to be witnessed by Muhammad Zada, Muhammad Nawaz besides him. The report of complainant was recorded in shape of Murasilla Exh.PA/1, which was sent to Police Station, culminated into the above referred Case FIR. P.W.3 prepared injury sheets and inquest reports of the deceased and injured and handed over them for medical examination.
3. Muzakar Shah, P.W.3, after sending the Murasilla to Police Station visited the spot, prepared the site plan, Exh.PB, at the instance of P.Ws. Muhammad Nawaz and Irfan Ullah. During spot inspection, he took into possession blood stained pebbles, twelve empties of 7.62 bore and a spent bullet, vide recovery memos, Exh.P.W.2/1 and Exh.P.W.2/2. Since legal heirs of deceased were not willing to conduct the Postmortem examinations of the deceased, therefore, their autopsy was not conducted, while the injured were medically examined and admitted in hospital. During investigation complainant and injured P. Ws. Recorded their statement wherein they also charged one Lal Bad Shah for the commission of offence; therefore, he was also booked in the present case.
Since all the three accused were avoiding their lawful arrest, therefore, warrants under section 204, Cr.P.C. And notices under section 87, Cr.P.C. Were issued against them. After completion of investigation, complete challan under section 512, Cr.P.C. Was submitted before the court.
4. Learned trial Court vide order dated 5-7-2006 declared all the three accused as proclaimed offenders and perpetual warrants of arrest were issued against them. Later on, appellant-convict was arrested and supplementary challan against him was submitted before the trial Court.
5. Learned trial Court after supplying requisite documents within the meaning of section 265-C, Cr.P.C., formally charge sheeted the appellant to which he pleaded not guilty and claimed trial.
Prosecution in order to prove its case produced eleven witnesses. Thereafter, appellant was examined under section 342, Cr.P.C., wherein he totally denied the allegations levelled against him.
Learned trial Court, after hearing the parties, vide the impugned judgment, convicted and sentenced the accused as stated above, hence, the above referred appeal and revision.
6. Learned counsel for the convict-appellant, inter alia, submitted that complainant in his first report charged two accused with no specific report but, later on, he not only gave specific role to each accused but also nominated one Lal Bad Shah in his supplementary statement as well as Court statement by making dishonest improvement, therefore, the same has no evidentiary value.
He further submitted that complainant and eye-witnesses by way of giving contradictory evidence to the FIR and statements recorded under sections 161, Cr.P.C. Have rendered their testimony as doubtful. He argued that complainant and the eye-witnesses are closely related to each other and statements of eye-witnesses are not only in conflict to the site plan but also recorded by the I.O.
With unexplained delay. He added that twelve empties allegedly recovered from the spot but the same were not sent to FSL as to whether the same fired from one or different weapons. He argued that complainant has neither specified the weapon of offence which the accused were carrying at the relevant time and even no empty has been recovered from the place pf appellant. He added that though there is abscondance of appellant but the same is not sufficient to convict a person on capital charge, therefore, the judgment of trial Court is based on mistaken appreciation of evidence on record and liable to be set aside and the convict-appellant Sahib Zada may be acquitted of the charge.
7. As against that, learned AAG and counsel for complainant contended that the complainant has charged the appellant in his promptly lodged report and the P. Ws. During courts statements assigned specific role to the appellant, as such, the story of FIR has been elaborated in their statements, therefore, their testimony has not come within the definition of dishonest improvements. They contended that story of prosecution has further been supported by eye- witnesses Muhammad Nawaz (P.W.2) and injured Muhammad Zada (P.W.9), medical evidence and recovery of empties. They added that the prosecution has successfully established its case against the appellant beyond reasonable doubt and supported the impugned judgment, however, contended for awarding maximum sentence to the appellant.
8. We have considered arguments of learned counsel for parties and have gone through record of the case with their able assistance.
9. Perusal of contents of FIR reveals that initially appellant and absconding co-accused Raham Zada were charged by the complainant in his report with no specific role. According to contents of report, both the above named accused came to the spot armed with deadly weapon and after some altercation with complainant party, they made firing at them as a result of which Sahibzada and Sher Zada were hit and died on the spot while complainant and Muhammad Zada received injuries. Later on, A complainant after discharge from the hospital on 27-10-2005 recorded supplementary statement on 11-11-2005, after eighteen days of the occurrence, wherein he assigned specific role to each accused and also charged one Lal Bad Shah for firing at the complainant party. The first report and statement recorded by complainant as P.W.1 when placed in juxtaposition reveal that the complainant has made complete departure from the contents of his report.The contents of Marasilla reveal that after report of the complainant it was read over to him and he thumb impressed the same as token of its correctness. Complainant admitted in his cross-examination that at the time of report he was in complete senses and his report has correctly been recorded. The rule for safe administration of justice is that improvement or deviation made by eyewitness in order to strengthen prosecution case, lose his credibility and evidentiary value and when a witness made improvement changing his B version, in order to in line his testimony with the prosecution story, if found to be deliberate and dishonest, would cause serious doubt on his veracity. Wisdom is derived from the case Farman Ahmed v. Muhammad Inayat and others reported (2007 SCMR 1825), wherein it has been held that improvements once found to be deliberate and dishonest would cast serious doubts on veracity of such witness. In the present case, complainant (P.W.1), Muhammad Nawaz, P.W.2, have made deliberate C and dishonest improvements in his statement to strengthen the prosecution case, therefore, their statements lose its credibility and evidentiary value.
10. The injured witness, P.W.9, deposed in his cross-examination that his statement was recorded by the police on 11-11-2005, after eighteen days of the occurrence, while was, discharged from hospital on 31-10-2005. Similarly, supplementary statement of complainant was recorded on 11-11-2005, after his discharge from hospital on 27-10-2005. No explanation whatsoever was offered by the prosecution for such delay. In a case of Muhammad Sadiq reported in (PLD 1960 SC 223), it was held that delay of 24 hours in statement of a friend of deceased was considered fatal for prosecution case. Similar views were taken in 1984 SCM R 930, 1993 SCM R 550, 1998 SCM R 570 and 2008 SCM R 1221. In Rahat Ali's case reported in 2010 SCM R 584 it has also been observed that delay in recording the statement of a witness by police without furnishing any plausible explanation, is fatal to the prosecution case and the statement of such witness is not to be relied upon.
11. There are also contradictions in the statements of P.Ws. As complainant stated that two accused came to the spot while Muhammad Zada stated that three accused came to the spot, which further makes their testimony unbelievable. Complainant in his report as well as in examination-in- chief deposed that he along with deceased and P.Ws. Were busy in making maize haystack when accused Rahim Zada and Sahib Zada came and restrained them from doing so, on which some hot words exchanged between them, due to which both the accused started firing at them. P.W.2, Muhammad Nawaz, deposed in his examination in chief that on the day of occurrence deceased and injured P.Ws. Were making haystack in the meantime, accused Sahib Zada, Rahim Zada and Lal Bad Shah came and restrained them from making the haystack, on which altercation took place between them, in the meanwhile, all the three accused started firing at them while injured Muhammad Zada, P.W.9, narrated some other story and deposed in his examination in chief that he along with Sher Zada, Sahib Zada and Ihsan Ullah were making maize haystack in the meantime Sahib Zada accused came on the pretext of working in `banna' (bareed) of the land while Rahim Zada, the absconding co-accused, was in the courtyard of his house, while Lal Bad Shah accused was standing in the courtyard of his hujra, in the meantime, his brother Nawaz told him not to work in the banna' and on noise his brother Irfan Ullah and uncle Sahib Zada, deceased, father Sher Zada and uncle Ihsan Ullah came to the spot. He further stated that accused Sahib Zada made firing with his pistol with which his uncle Sahib Zada was hit and died on the spot and he was also hit with his firing. In his cross-examination he stated that Sahihb Zada accused came for work in the `Bareed' at 14.50/14.55 hours. He deposed that appellant Sahib Zada was having spade and he was working with his spade. The Investigating Officer did not show the maize haystack in the site plan. He admitted in cross-examination that motive was, in fact, over women, which the complainant was concealing. He admitted that he investigated the motive part and it came to light that motive over `bareed' is only a pretext and, as such, motive is shrouded in mystery. Statements of the P.Ws. Are also contradictory to the statement of Investigating Officer and medical report because the report has been lodged at 4-45 p.m. And P.W.3, who recorded report of the complainant, stated that after recording report of the complainant, preparing injury sheets and inquest reports, the injured were handed over to Medical Officer but according to medical reports of the injured and statement of Medical Officer, the injured were examined at 4-00 p.m., i,e,, before recording of report. The Investigating Officer also admitted that a lady from accused side had also received injury for which Ihsan Ullah complainant and injured Muhammad Zada were charged, however, he did not go to the hospital to see her.
The eye-witnesses are relative inter se and we are aware of the view that mere relationship is not sufficient to discard testimony of a witness but now it has been settled that the real test for acceptance of a statement is as to whether the statement of a witness is in consonance with the probabilities, whether it fits in with the other evidence and whether it inspires confidence in the mind. Wisdom is derived from the cases Muhammad lqbal v. The State (1984 SCMR 930), Muhammad Arshad alias Achhi v. The State (1995 SCMR 1639), Haroon alias Harooni v. The State and another 1995 SCMR 1627 and Muhammad Saleem v. The State, 2010 SCMR 374.
12. No doubt, Ihsan Ullah complainant (P.W.1) and Muhammad Zada (P.W.9) having the stamp of injuries, as reveals from the medical reports, and their presence on the spot is not disputed one but this fact alone cannot be considered sufficient to hold that they have spoken the whole truth and mere injuries on the persons of a witnesses is not a yardstick for determining the truthfulness or falsehood of a witness. It cannot be believed that every injured witness would speak truth and every unhurt eye-witness would tell a lie. It is the circumstance of the case and intrinsic worth of his statement, which determines the veracity and credibility of a witness. Their testimony is to be tested and appraised on the principles applied for appreciation of any other prosecution witness.
Wisdom is derived from the case Amin Ali and another v. The State (2011 SCMR 323) where in it has been held that presence of injured witness cannot be doubted at place of incident merely because they had injuries on their persons but does not stamp them to a truthful witness. It is also settled law that the factum of the presence of a witness being natural would establish his presence on the spot but would not take the prosecution case any further. Wisdom is also derived from Muhammad Pervez and others's case (2007 SCMR 670), wherein it has been held that injuries on a prosecution witness are only indication of his presence .At the spot but are not affirmative proof of his credibility and truth. It is fundamental principle of jurisprudence, that is, to disbelieve a witness, it is not necessary that there should be numerous infirmities. If there is one which impeaches the credibility of the witness, that may make the entire statement doubtful.
The evidence in shape of ocular account produced by the prosecution is not worthy of credence to gain our confidence so as to be believed against the appellant. From the evidence available on record, we came to the conclusion that, though, unfortunate occurrence has taken place but has not taken place in the mode and manner advanced by the prosecution.
13. True that there is abscondance in the account of appellant but it is a settled law that mere abscondance does not prove guilty mind. Abscondance can be used only as a corroborative piece of evidence, which cannot be read in isolation but it has to be read along with substantive piece of evidence. In the present case the substantive piece of evidence in the shape of ocular account has been disbelieved, therefore, no conviction can be based on abscondance alone. Reliance in this regard is placed on the case of Rohtas Khan v. The State 2010 SCMR 566.
14. Quite apart from this, complainant in his report has not disclosed the type of weapons, which the appellant was carrying at the relevant time. The site plan reveals that the complainant party and the assailants were very close to each other at the time of occurrence, so, there was no chance for the complainant to omit the description of the crime weapons possessed and used by each accused and only P.W.9 in his Court statement recorded on 9-6-2011, after about six years of the occurrence, disclosed that the appellant was armed with pistol. No crime K empty has been recovered from the place attributed to the appellant in the site plan and even the alleged eleven empties recovered from the spot were not sent to the FSL in order to determine as to whether the same were fired from one and same weapon or otherwise, which also makes the story of prosecution unconvinced. The P.Ws. Gave parrot like statements with regard to role of each accused, which in the given circumstances, is not good enough because it was impossible for the P.Ws. To distinguish the role of each accused as three persons were allegedly firing at them.
15. On scanning the entire record we have observed all the attending circumstances and it is obvious that eye-witnesses are interested witnesses and their testimony was not corroborated by the independent evidence and their statements were also not confidence inspiring. 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 a single circumstance creating reasonable doubt is sufficient for the acquittal of an accused.
For the aforesaid reason, we are of the view that the prosecution has failed to prove the guilt of the appellant through unimpeachable ocular testimony, therefore, by extending the benefit of doubt; we accept the appeal filed by the appellant-convict by setting aside his convictions and sentences and acquit him of the charges levelled against him. He be set free forthwith, if not required in any other case.
These are the reasons of our short order of even date.