' ROOH-UL-AMIN KHAN, J.---This appeal is directed against the judgment/order dated 4-1-2011, passed by the learned Additional Sessions Judge, Karak at Takht-e-Nasrati, whereby appellant Sail Khan has been convicted under section 302(b), P.P.C. For the murder of Mst. Noor Nawaba and sentenced to imprisonment for life and to pay Rs,1,00,000, as compensation to the legal heirs of the deceased within the meaning of section 544-A, Cr.P.C. Or in default thereof to undergo 6 months' SI further, in case FIR No, 250, dated 28-9-2009, registered under sections 302/324/148/149 P.P.C. At Police Station Takht-e-Nasrati, Karak. Benefit of section 382-B Cr.P.C. Has been extended in his favour.
2. The prosecution case, as unfolded in the FIR is that, on 28-9-2009 at about 0845 hours, complainant Muzafar Khan, in emergency room of Civil Hospital Takht-e-Nasrati, in injured condition, reported to Inayat Zaman ASI (P.W.5), that on the day of occurrence at 0700 hours, he was present in his house, heard the report of fire shots, which attracted him towards the place of firing where he saw appellant Sail Khan firing at his sister-in-law Mst. Noor Nawaba, with which she hit and died on the spot. In the meanwhile, accused Munawar Khan and Irshad Khan, his co- villagers, fired at him, as a result of which, he sustained injury on his left arm. While accused Zahidullah Khan and Habibullah, also resorted to firing, but complainant luckily remained unscathed. Accused Zahidullah Khan, Habibullah and Rafiullah thrashed mother of the, complainant Mst. Badsho Begum with sticks and fists, whereafter, they made their escape good from the crime spot. The occurrence is stated to have been witnessed by P.Ws. Muhammad Riaz and Shahpur, both cousins of the complainant. Motive for the occurrence, as stated by complainant, was a dispute over landed property. Report of the complainant was reduced into writing in the shape of murasila Exh.PA, which was sent to the Police Station, on the basis of which, FIR was registered. Inayat Zaman A.S.-I. P.W.5, prepared the injury sheets of all the injured as well as that of the deceased and his inquest report, and dispatched the dead body for postmortem examination.
3. On completion of investigation, initially challan under section 512, Cr.P.C. Was submitted against the accused. Later on appellant and his co-accused Riazullah alias Zahid and Habibullah were arrested and supplementary challan was submitted against them before the trial Court, where they were formally charge-sheeted to which they pleaded not guilty and claimed trial. In order to prove the guilt of the appellant and his co-accused, the prosecution examined eleven witnesses.
After closure of the prosecution evidence, appellant was examined 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 under section 340(2), Cr.P.C. Nor opted to produce evidence in defence. On conclusion of trial, appellant was convicted and sentenced, as aforesaid while co- accused Riazullah and Habibullah were acquitted.
4. Learned counsel for the appellant argued that report has been made after preliminary investigation with inordinate delay, for which no explanation, much less plausible one, has been furnished by the complainant thus, deliberation, consultation and substitution in the presence of strong motive i,e, dispute over landed property, cannot be ruled out; that presence of alleged eye- witnesses, at the time of incident, has not been established; that the testimony of the alleged eyewitnesses run contrary to each other on material particulars of the incident, creating serious doubt about their presence at the scene of occurrence at the relevant time; that the occurrence has not been taken place in the mode and manner as alleged by the complainant; that on the same set of evidence, appellant has been acquitted under section 324, P.P.C., hence, his conviction on the basis of same evidence would be unjustified and against the law; that the findings of the trial Court while acquitting co-accused, wherein the evidence of the P.Ws. Has been discarded, have not been challenged by the complainant party by filing any appeal, as such, these findings have attained finality wherein the alleged eyewitnesses' testimonies have been disbelieved; that the prosecution case is full of doubts benefit of which should be extended to the appellant and he be set liberty forthwith.
5. Conversely, learned counsel for the complainant vehemently opposed the contentions of the learned counsel for the appellant and argued that the ocular account furnished by the P.Ws. Is straightforward, trustworthy and confidence inspiring on each and every material particulars of the incident and they have fully corroborated each other; that circumstantial evidence in the shape of recoveries of bloodstained earth from the spot, crime empties and that positive FSL report, further supplement the prosecution version. Learned counsel argued that medical evidence also corroborates the version of the complainant; hence, the learned trial Court was justified in convicting the appellant-convict which is based on properly appraisal of evidence available on record. Hence, this appeal is liable to be dismissed.
6. We have given our anxious consideration to the respective submissions of the learned counsel for the parties and have gone through the record with their vetuable assistance.
7. Perusal of contents of the FIR, depicts that P. Ws. Muhammad Riaz and Shapur, are cousins of the injured complainant. Similarly, complainant is brother-in-law of the deceased Mst. Noor Nawaba while son of Mst. Badsho Begum. Thus, keeping in view their close blood relations inter-se, their status cannot be excluded from the category of interested witnesses and in the circumstances the rule of corroboration in case of interested witnesses is not an inflexible rule. Such rule can be dispensed with in appropriate cases. In order to bring the case out of the scope of general rule, the evidence of an interested witness is to be scrutinized very carefully. Firstly, truthfulness of such witness is to be tested on the touchstone of the inherit merit of his statement and, secondly, if his statement is found reasonable, probable or plausible, and reliable then the same can be accepted relied upon without corroboration.
8. As manifest from the contents of the FIR, the appellant has been attributed specific role of committing the murder of deceased Mst. Noor Nawaba by firing at her with his weapon. The occurrence was also witnessed by Muhammad Riaz and Shahpur, cousins of the complainant; Mst.
Noor Nawaba is sister-in-law of the complainant. Motive, as disclosed by the complainant was a dispute over landed property. The complainant in his report as well as in his statement has stated that, after the occurrence, he was shifted to the hospital, where ASI came, after 5/6 minutes of their arrival, and before arrival of the ASI, the doctor had already examined them and started their treatment. He has categorically stated that first ASI examined his injuries and thereafter he recorded his report. As against that, a look over the testimony of alleged eyewitness Shahpur (P.W.7), would manifest that it totally negates/runs contrary to the version of the complainant. In cross examination he deposed that, after the occurrence, he along with injured complainant Muzafar Khan and Gul Shah Jan proceeded to Police Station. Out of them, Gul Shah Jan entered the Police Station, wherein, they remained there for about 45 minutes/one hour, during which time, Thanidar did not examine the wounds of injured Muzafar Khan, rather directed them to go to the hospital, wherefrom, they proceeded to the hospital in Datsun, in which the dead body of the deceased was also shifted to the hospital. Thus regarding the same facts, there are two versions, one furnished by the complainant and the other furnished by the alleged eye-witness P.W.7, which of the two versions, is correct, is shrouded in mystery. However, one thing is manifest that FIR had been lodged after preliminary inquiry and consultation. It is settled law that FIR has a very significant role to I play, being a corner stone of the prosecution case to establish guilt of the accused involved in the crime. Any doubt, in lodging of the FIR and D commencement, of investigation would give rise to a benefit in favour of the accused. Admittedly, FIR, lodged after conducting an inquiry loses its evidentiary value. Reliance may be placed on the judgment of Hon'ble Supreme court in case titled, "Iftikhar Hussain and others v. Muhammad Fazil" 2004 SCM R 1185. P.W. Shapur has narrated the facts in unequivocal terms that they have spent 45 minutes/one hour in Police Station for recording the report and lodging the FIR. It was also asserted that "Thanidar" was present in Police Station, who advised them for going to hospital. The learned Additional Advocate General as well as counsel for the complainant could not explain as to what were the reasons for not recording the FIR in the Police Station and that why, the complainant along with eyewitness, was sent to the hospital. The only inference from the above situation may be drawn that the FIR has been lodged after consultation and deliberation. It has been held time and again that FIR which is not recorded at Police Station, suffers from the F inherent doubts. Reliance may be placed on case titled "Allah Bachaya and another v. The State' (PLD 2008 SC 349).
9. The perusal of statements of the eye-witnesses depict that they have made certain dishonest improvements just to fill up the lacuna left in the prosecution case and to bring in conformity the prosecution story with other evidence collected during investigation. There is nothing in the FIR about thrashing of Mst. Badsho Begum with spades by the accused but during statements the eyewitnesses have introduced thrashing of Mst. Badsho Begum by the accused by inflicting spades blows on her person, just to bring in line their case with the medical evidence, as according to medical report the injuries on the person of said P.W. Were declared to be the result of blunt weapon. Admittedly, improvements made by witnesses in their statements at the trial, once found to be deliberate and dishonest, the same cast serious doubt in their veracity making their testimony unreliable. In support of above, the principle laid down by the apex Court in case titled, "Muhammad Saleem v. Muhammad Azan (2011 SCM R 474) may be cited. Moreover, P.W.7 in his cross-examination categorically deposed that from the hospital, he all alone went back to village and that he was the only person who pointed out the spot to the police but his statement was not recorded by the police. Whereas, the site plan speaks otherwise, negating the version of P.W.7, because, as evident from its foot-notes, the same had been prepared at the instance of P.W.7 as well as P.W. Muhammad Riaz. The combined perusal of the testimony of the witnesses who have furnished the ocular account reveals that they are not consistent with each other on material aspects of the case. Rather, there are contradictions inter se their statements right from the moment of incident till their arrival in the hospital and lodging report. P.W. Muzafar Khan has put forth a different story regarding their shifting from the spot to the hospital while P.W.7. Has furnished some other story. Even there is contradiction about the number of the vehicle used in shifting the injured and dead body to the hospital from the spot. According to P.W.7 one Datsun was used while according to complainant Muzafar Khan the injured and dead body, were removed from the spot in two vehicles. Whatever may be the actual story, but the stories furnished by both the P.Ws. Run contrary to each other which being doubtful would be injurious for the prosecution case. It is axiomatic and universally recognized principle of law that conviction must be based on unimpeachable evidence and hence any doubt that arises in the prosecution case must be resolved in favour of the accused. In case titled, "Muhammad. Akram v. The State"(2009 SCM R 230), the Hon'ble Supreme Court settled the law that many circumstances creating doubt are not necessarily required for giving benefit of doubt to an accused. Single circumstance creating a reasonable doubt in a prudent mind about the guilt of accused would make him entitled to the benefit of doubt, not as a matter of grace and concession but as a matter of right.
10. Only role of firing at the deceased has been attributed to appellant by the complainant in his report. No doubt, substitution of innocent person, where single accused is named in a murder case, is a rare phenomenon, but it depends from case to case. In the instant case, we have smelled that the occurrence has not taken place in the mode and manner as narrated by the complainant. The eye-witness account furnished by Shahpur P.W.7 is not in consonance with FIR and statement of the complainant. The complainant has given no specification of number of the fire shots made by the appellant. But during his cross-examination Muzafar Khan the injured complainant to fill up the lacuna and to bring in conformity his version with the recovery of crime empties from the place of the appellant, specifically attributed 12/13 fire shots to accused Sail Khan, whereas, autopsy report of the deceased shows only single firearm entry wound on her right lumber area lateral side with exit wound on lateral side of left hypochondrium. Keeping in view the allegations of 12/13 shots by the appellant in juxtaposition with solitary injury on the person of the deceased, the mode and manner of the incident, as alleged by the complainant and the eye-witnesses do not appeal to a prudent mind, because in broad day light occurrence and in presence of male enemies, no body will prefer to kill an innocent female without any motive and will spare the empty handed males, present on the spot. It does not appeal to reason that the male members, who reached the spot on alarm of the fire shorts, would come out of their house, without properly arming themselves or on the spot they would have not made any attempt to save the life of their female family member. If the occurrence is considered from other angle, the complainant and eyewitnesses on their own showing, were in close proximity of the deceased and thus within the range of sophisticated weapon/Kalashnikov of the accused, but strange enough, all they escaped unscathed and none of them received any injury from indiscriminate firing of the accused-appellant. No doubt, complainant Muzafar Khan has sustained firearm injury but injuries 'on the person of an eyewitness would not raise any presumption that whatever he is telling, is the truth. At very initial stage the complainant has stated that dispute over the landed property is motive for the alleged occurrence. We have scanned the entire record and searched the file from cover to cover but could not find an iota of evidence qua dispute between the parties on landed property. It has been held in case titled, "Muhammad Sadiq v. Muhammad Sarwar" (1979 SCM R 214), that when motive is alleged, but not proved, then the ocular evidence required to be scrutinized with great caution, In case of "Hakim Ali v. The State" (1971 SCM R 432), it has been observed by the august Supreme Court that prosecution though not called upon to establish motive in every case, yet once it has set up a motive and failed to establish it, the prosecution must suffer its consequences and not the defence.
11. As regard circumstantial evidence in the shape of recovery of crime empties from the place of the appellant, in absence of any matching report would not be helpful to the prosecution.
Admittedly, no weapon has been recovered from the direct possession of the appellant or on his pointation to send it for matching with the crime empties. Similarly, abscondence of accused alone is not sufficient to convict him when ocular testimony stood already discarded. The august Supreme Court has settled the law in case titled. "Muhammad Farooq v. The State" (2006 SCM R 1707), that abscondence of accused may never be taken as corroborative piece of evidence Same view has been reiterated in case titled, "Abdul Khaliq v. The State" (2006 SCM R 1886). In the instant case the appellant has surrendered before the local police on 20-12-2009. The Investigating Officer has admitted the fact that the appellant has explained his abscondence in his statement that he being a mason by profession was earning his livelihood at Punjab province. It is natural phenomenon that people do abscond, when charged in a case of murder, rightly or wrongly. Such like abscondence alone, would not be sufficient to convict the accused, when ocular evidence has already been discarded, because no substantive piece of evidence is available for corroboration by the abscondence of appellant. The august Supreme Court in case titled, "Rasool v. Asal Muhammad" (1995 SCM R 1373 observed that abscondence is only a suspicion circumstance. In the case of "Muhammad Yaqoob v. Manzoor Hussasin" (2008 SCM R 1549), it has been held that mere abscondence is not conclusive proof of guilt of an accused person. It is only a suspicious circumstance against an accused that he was found guilty of an offence. Suspicions after all are suspicions. The same cannot take place of proof.
12. In so far as the medical evidence is concerned, it may be stated flat Mst. Noor Nawaba has died due to firearm injury on vital part of her body. The injury sustained by her is in obvious conflict with the site plan and the FIR. As per first information report, the deceased, on receiving injury, died instantaneously, while according to Post-mortem report; the time between death and injury is, about 30 minutes, which means that the deceased was lying alive for 30 minutes on the spot.
However, in presence of numerous dents and serious doubts in the prosecution case, the medical evidence, being not a corroborative piece of evidence,- but only supporting evidence, would not be sufficient for conviction of the appellant in capital charge. In this respect guidance may be derived from the principles laid down by the Apex Court in case titled, "Nasrullah v. The State" (1987 SCM R 914).
13. On careful examination of the evidence, circumstances, appearing in the case lead us to the conclusion that P.Ws. Muzafar Khan, Shahpur and Mst. Afsar Kana, on account of their close relationship with each other and inimical towards the appellant, are interested witnesses and have deposed against the appellant with a motive, other than of telling the truth. All these material contradictions and discrepancies in the statements of the P.Ws., creating doubt about the guilt of the appellant, escaped notice of the trial Court, as such, the trial Court reached to a wrong conclusion by convicting and sentencing the appellant. Consequently, this appeal is allowed and the conviction and sentence recorded by the trial Court are hereby set aside. These are the detailed reasons of our short order of even date, which is reproduced as follows:-- ' For the reasons to be recorded later on this appeal is allowed. The conviction and sentence recorded vide impugned judgment/order dated 4-1-2011, by the learned Additional Sessions Judge Karak at Takht-e-Nasrati, is hereby set aside and resultantly, appellant-convict stands acquitted of the charge in case FIR No,250, dated 28-9-2009, registered under sections 302/324/148/149, P.P.C., at Police Station Takht-e-Nasrati Karak. He be set at liberty forthwith, if not required in any other case.