ROOH-UL-AMIN KHAN, J.---Appellant Sajjad Ahmad was indicted for murder and attempt to commit murder charges by the learned trial Court/Additional Sessions Judge, Karak at Takht-e- Nasrati and was thus convicted under section 302(b), P.P.C. And sentenced to undergo life imprisonment with a fine of Rs, 1,00,000 to be paid to the legal heirs of the deceased as compensation within the meaning of section 544-A, Cr.P.C. And in default thereof to undergo 6 months' S.I. Further. He was further convicted under section 337-A(iv), P.P.C. And sentenced to pay 15% of Diyat as Arsh to injured as well as to undergo 7 years' S.I. As Tazir, and in default of payment of Arsh, to undergo 4 months' S.I. Further. He was further convicted under section 324, P.P.C. And sentenced to undergo 3 years' S.I. Vide judgment dated 31-1-2012, in case FIR No,288, dated 10-11- 2009, registered under sections 302/324, P.P.C. At Police Station Takht-e-Nasrati Karak. All the sentences are ordered to be run concurrently. Benefit of section 382-B, Cr.P.C. Has been extended in favour of the appellant.
2. Against his conviction and sentence, the appellant has filed instant appeal while complainant Misal Khan has filed Cr. R. No,14-B of 2012, titled, Misal Khan v. The State" for enhancement of sentence of the convict. As both, the appeal as well as the revision, are stemming out of the same judgment of the learned trial Court, hence, we propose to dispose of the same through this single judgment.
3. The prosecution case is that Amir Khan S.I. Police Station Takht-e-Nasrati, on receipt of information during his patrol duty in Takht-e-nasrati Bazaar, regarding shifting of injured persons to the hospital, rushed to Civil Hospital Takht-e-Nasrati where he found Misal Khan and Mst. Firdos Begum in injured condition. Injured Misal Khan reported him that on the night of occurrence at 2030 hours, he along with his father Muhammad Aslam Khan had gone to "Tanzeem Office" and on their return, when they reached a thoroughfare near their house, accused Sajjad Ahamd (present appellant) duly armed with Kalashnikov was sitting there. When they reached near him, he opened fire at them with intention to do them away, as a result, he was hit while his father remained unscathed. On the report of fire shots, Mst. Firdos Begum, came out of her house and the accused to take her life, also fired at her, with which, she was hit and injured. The occurrence is stated to have witnessed by his father, Mst. Firdos Begum and many people. Motive as disclosed in the FIR was domestic dispute. Report of the complainant was reduced into writing in the shape of murasila, on the basis of which, FIR mentioned above has been registered. Later on, Mst. Firdos Begum succumbed to the injuries as such section 302, P.P.C. Was also inserted in the FIR.
4. After completion of investigation, challan was submitted against the accused before the trial Court, where he was charge sheeted to which he pleaded not guilty and claimed trial. To prove the guilt of the accused, prosecution examined nineteen witnesses. After closure of the prosecution evidence, statement of the accused under section 342, Cr.P.C. Was recorded wherein he denied the prosecution allegations and professed his innocence. He 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, the learned trial Court, after hearing both the sides, convicted and sentenced the accused-appellant as mentioned above.
5. We have heard the exhaustive arguments of the learned counsel for the parties and have perused the record with their valuable assistance.
6. No doubt, this is a case of single accused who is charged for the murder of a lady and attempting at the lives of the complainant Misal Khan and his father Aslam Khan. True that the Hon'ble Supreme Court has held in so many pronouncements that substitution of single accused in a murder charge is a rare phenomenon, but still to put the rope around the neck of an accused charged singularly, there must be ocular account of unimpeachable character, trustworthy and confidence inspiring, corroborated by other material circumstantial evidence. This incident has taken place in the month of November, 2009 at 2030 hours i,e, after "Isha prayers" time As per "Pakistan Moon Calendar", in the month of November, 2009, particularly on the date of occurrence i,e, 10-9-2009, Sun rise time has been given as 06.41 hours, Set at 17:27 hours and the Moon Set time is 13.17 hours. Thus keeping in view the time of sun set and that of the Moon Set, the occurrence is nocturnal. A look over the contents of report of the complainant would depict that he has neither disclosed about any source of eclectic light, moon light or any torch in their possession at the time of incident. Similarly, during their Court statements, neither the complainant nor P.W. Aslam Khan has uttered a single word about availability of any source of light in the vicinity of the crime spot.
Spot has been inspected by the Investigating Officer, but no electric bulb has either been recovered or taken into possession therefrom. In the site plan, the accused has been shown at point No,3, complainant at point No,1, P.W. Muhammad Aslam at point No,2 and deceased Mst.
Firdos Begum at point No,4. The distance inter se point A Nos.1 and 3, is 3 paces. Point No,2 is at a distance of 17 paces from point No,3 and similarly, point No,4 is at a distance of 55 paces, as shown in the site plans, which are the distances inter se the accused and the complainant party. In the above scenario, identity of accused in the dark hours of the night would be highly doubtful when no mode of light has been brought on record to confirm the identity of the accused.
7. The ocular account of the incident has been furnished by Misal Khan complainant-injured (P.W.13) and Muhammad Aslam Khan (P.W.14). Both these witnesses are not only closely related with each other being son and father inter se, but also with the deceased lady. Domestic dispute has been alleged as motive. In the circumstances, both the eye-witnesses are not only highly interested but also inimical towards the accused because of their previous motive and it is a consistent view of the Courts from which no departure can be made on any occasion that testimony of such witnesses must get corroboration through B corroboratory evidence which shall come from unimpeachable source. In the FIR it has specifically been mentioned that beside P.W.
Muhammad Aslam and Mst. Firdos Begum, large number of people have also witnessed the occurrence. The factum of witnessing the incident by many other people has also been admitted by complainant Misal Khan (P.W.13) in his examination in chief, but during cross-examination he while taking somersault stated that after firing by the accused, the people from the neighbouring houses and other co-villagers, attracted to the spot and saw the accused while decamping from the spot. Similarly, during cross-examination he stated that on the night of occurrence he along with, his father had gone to Tanzeem Office and there they found Muhammad Khan, who is Chowkidar of the office, and his father handed over him application. Similar story of their visit and handing over the application has been put forth by Muhammad Aslam Khan (P.W.14), in his statement. Both the witnesses have admitted the status of Muhammad Aslam as "Member of the Tanzeem". One thing which would make a prudent mind strange is that when P.W. Muhammad Aslam was the Member of Tanzeem, why was he in so hurry to submit an application in the office, after closing hours of the Office, and that too at night time. Both the P. Ws. Have not furnished any explanation much less plausible to justify the submission of application at night time being inevitable and their visit to the Office of the Tanzeem at night time. Besides, neither any persons among the people who witnessed the incident nor the Chowkidar who had been handed over application, has been examined as witness to substantiate the version of the complainant and to establish their presence at the place of incident. One thing more which appears very astonishing is the putting of thumb impression of the complainant over his report despite the fact that he is M.Sc.
In Mathematics, as admitted by him in his cross-examination. He deposed that he is a public servant in Education Office at District Hangu, and during the days of occurrence he was on leave for two days i,e, 10th and 11th November, 2009. He has not brought on record the relevant record of his service to prove his leave during these two days so as to establish his availability in the village.
According to medico legal report of the injured complainant, he sustained a firearm entry wound on left lumber region making exist on top left shoulder joint and the direction of the wound as given by the medical Officer, is from below upward. This fact is also admitted in cross-examination by doctor Gul Sanat Shah SMO, who examined the injured complainant. According to him the direction of the injury on the person of Misal Khan was from below upward. Injured Misal Khan in his cross- examination deposed that the place where he was hit was a plain area. The medical evidence totally negates the version of the complainant. Complainant further stated in his cross- examination that when he was hit with the firing of accused, he did not fall to the ground rather he bowed. The Statement of P.W. Muhammad Aslam Khan (P.W.14) in this respect totally runs contrary with the statement of complainant P.W.13. According to him, after firing at his son (Misal Khan complainant) by the accused, he did not fall on the ground, but took some steps towards his house. He further deposed that he had shown the place of taking steps by his son to the I.O. During spot inspection. The factum of taking steps by the injured is not mentioned in the site plan.
Moreover, P. W.13 while negating the motive part of his FIR stated that accused was a hardened disparate criminal who used to quarrel with people of the area and they were not at his side in his quarrel with the people, therefore, the accused was annoyed with them. He further stated that he had told this fact to the police that they were not favouring the accused in his quarrel with other people due to which he was annoyed with them. Perusal of the FIR depicts that nothing of the sort has been disclosed in the FIR. Rather, domestic dispute has been disclosed as motive of the incident. P.W.14 has stated in his satement that the I.O. Prepared the site plan at this pointation at about 10-00 p.m. And he remained with the I.O. Till 1-00 a.m. According to him, after the hospital he came back to his house. Whereas according to Allah Dad Khan S.I P.W.15/I.O. He proceeded to the spot at 21.45 hours and eyewitness Muhammad Aslam came to the Police Station from the hospital and from there he accompanied him to the spot. The Investigating Officer has admitted in his cross-examination that the places of the accused and the eye-witnesses were on the plain area. In the circumstances, the direction of injury from down to upward on the person of the injured does not appeal to reason. The medical evidence totally negates the versions of both the alleged eye- witnesses if one takes F into consideration the statement of doctor Nabeela Bibi WMO, who conducted autopsy on the dead body of deceased Mst. Firdos Begum. According to her, she observed 2 c.m entry wound on left upper buttock 1.5 c.m to the left of midline at the level of coccyx bone. Blackening positive. Whereas, as per site plan, the distance given by the eyewitnesses inter se the accused and Mst. Firdos Begum is 76 paces, and blacking from such a distance seems impossible. Site plan, no doubt is not a substantive piece of evidence, but being the first reflection of the spot indicated or pointed out by the eye-witnesses furnishes a panoramic G view of the occurrence to scrutinize the evidence tendered at the trial by the prosecution witnesses. The blackening on the person of the deceased lady was possible in case of a distance of 4 to 6 feet. As held by the Hon'ble Supreme Court in case titled, "Muhammad Ishaque v. The State" (2007 SCMR 108), that burning on wounds was to occur when muzzle was at a distance of 5 to 6 feet from victim and burning from a distance of 132 feet was not possible. In the present ease, situation is the, same as observed by the apex Court in the referred case and as such the injuries caused by the deceased belie the prosecution version. Moreover, according to P.W.13 complainant-injured, the accused facing trial made a straight fire from the front at Firdos Begum, with which she was hit and fell down on the ground while according to her autopsy report there was 2 c.m entry wound on her left upper buttock, which shows that she has been fired from back.
8. Apart from above, It is admitted by complainant Misal Khan and P.W. Muhammad Aslam Khan that Shakir and Arif, who are brothers of Mst. Firdos Begum deceased after firing also attracted to the spot, out of whom, Shakir brought a Cot for shifting the dead body of the deceased and the dead body of their deceased sister was put by them in the said cot. Both the brothers of the deceased have neither been cited as witnesses in the inquest report of the deceased nor in the calendar of the challan to depose against the accused. In cross-examination complainant stated that while putting the deceased on the cot, the hands of Shakir and Arif were not smeared with blood of the deceased, which also does not appeal to reason. No blood has been recovered from the place of the injured complainant. Both the brothers of the deceased have not! Accompanied the dead body of their sister to the hospital which seems quite unnatural. It is an oft quoted phrase regarding appreciation of evidence substantially in criminal justice that men may lie but the circumstances do not. Thus, every human narration is always susceptible to be checked on the touchstone of circumstances as well as with reference to a normal human conduct. The ocular evidence furnished by both complainant and P.W. Muhammad Aslam, is inconsistent and incompatible with medical evidence as well as other circumstances of the incident. Range from which firing has taken place stated in ocular account vis-a-vis medical evidence are incompatible with each other. There is blackening on the injuries sustained by the deceased lady, which is not possible if firing has been done from the distances inter se the accused and the deceased, as given by both the P.Ws. The ocular evidence is highly inconsistent with medical evidence which create j serious doubts about the presence of both the P.Ws. And about the mode and manner of the occurrence as alleged by the complainant. The prosecution primarily is bound to establish guilt against the accused without shadow of reasonable doubt by producing trustworthy, convincing and coherent evidence enabling the Court to draw conclusion; whether the prosecution has succeeded in establishing accusation against the accused or otherwise; and if it comes to the conclusion that the charges so imputed against the accused has not been proved beyond reasonable doubt, then accused would become entitled for his release on getting benefit of doubt in the prosecution case. The requirement of the criminal case is that prosecution is duty bound to prove its case 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 prosecution story and entitle the accused for acquittal. It is well embedded principle of criminal justice that there is no need of so K 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.
In case titled, "Tariq Pervaz v. The State" (1995 SCMR 1345) the august Supreme Court was pleased to ruled that for giving the benefit of doubt, it is not necessary that there should be many circumstances, creating doubt. If there is circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, the accused would be entitled to the benefit of doubt not as a matter of grace or concession but as a matter of right. The same principle was reiterated by the apex Court in case titled, "Muhammad Akram v. The State" (2009 SCMR 230) and it was observed that it is an axiomatic principle of law that in case of doubt, the benefit thereof must occurred in favour of the accused as a matter of right and not of grace. The above principles laid down by the apex Court are fully in consonance with a famous maxim that "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". Moreover, accused is always considered as the most favourite child of law and every benefit of doubt goes to him regardless of fact whether he has taken any such plea or not. Reliance placed on case titled, "Faryad Ali v. State" (2008 SCMR 1086). The testimonies of complainant and P.W. Muhammad Aslam are not sufficient to prove the charge against the accused, especially when the same are highly doubtful. Their statements are not reliable being inconsistent inter se and belied by the medical evidence as well as the site plan. The occurrence does not appear to have taken place in the manner as alleged in, the FIR.
9. As regard circumstantial evidence in the shape of recovery of crime empties, is of no help to the prosecution in case of non-recovery of crime weapon and its comparison by the FSL with the crime empties. The recovered crime empties would only show that the deceased was killed through firearms and the killers left behind the empties but it does not carry the printed names of the killers and also because the crime weapon has never been recovered, therefore, the evidentiary value of the crime empties has diminished to considerable extent and cannot be used as incriminating article or evidence against the accused.
10. The only circumstance which is against the appellant is his abscondence. But prosecution cannot seek support from factum of abscondence of accused when eye-witnesses have not established their presence at the spot and their testimonies have been disbelieved being pregnant of doubts and suffering from material contradictions. Mere absconsion is not a conclusive proof of guilt of accused person. It is only a suspicious circumstance against an accused that he was found guilty of the offence. However, suspicions after all are suspicions. The same cannot take the place of proof. The value of abscondence, therefore, depends on the facts of each case. The absconsion of the accused may be consistent with the guilt or innocence of the accused, which is to be decided keeping in view over all facts of the case. Mere abscondence of accused could not be made the basis for his conviction as accused could run away due to fear or suspicious circumstances. No doubt, abscondence is a relevant fact, but it can be used as a corroborative piece of evidence, which cannot be read in isolation but has to be read along with substantive piece of evidence. Reliance placed on cases titled "Rohtas Khan v. The State" (2010 SCMR 566), "Rahimullah Jan v. Kashif and another" (PLD 2008 Supreme Court 298). No independent witness has come forward to support the version of the complainant.
11. The prosecution case inter alia, hinges on the following admitted facts:-
(i) Misal Khan has sustained fire arm injury on left lumber region, having corresponding exit wound on top left shoulder viz the projectile has travelled from below to upward.
(ii) Mst. Firdos Begum has also sustained firearm injury on her left buttock having blackening around the wound.
(iii) The trouser of deceased Mst. Firdos was found stained with blood, but without any corresponding cut mark, particularly, when the pellet has been recovered inside her trouser.
(iv) On hearing the fire shots, two brothers of Mst. Firdos Begum namely Shakir and Arif attracted to the spot. They picked their sister with their hands and put her on a Cot, but did not associate her to the hospital.
(v) In presence of the male members, a young girl rushed out of her house and the male and elder inmates of the house remained inside the house.
From the above it is abundantly manifest that the injury on the person of Misal Khan may only be possible if he remains bent to knee or stooped. Similarly, the injury on the buttock region of Mst.
Firdos Begum, having blackening, without corresponding cut marks on her trouser, lead to a definite inference that there is something black in the bottom. The material facts have been suppressed by the complainant regarding the genesis of the incident. In fact the manner of occurrence disclosed by the prosecution was distorted version calculated to support the fake and concocted story of the complainant. The guilt of prosecution of suppressing the material facts shall make the ocular account as incredible.
12. No doubt, P.W. Misal Khan has sustained firearm injury and admittedly in hurt cases, statement of injured witness, supported by medical evidence, is sufficient for recording conviction, provided it rings true and is trustworthy, in view of its intrinsic worth. Mere stamp of injuries on the person of a witness would not be a proof of the fact that whatever he deposes would be the truthful account of the events. His veracity is to be tested from the circumstances of the case and his own statement whether it fits in the circumstances of the case or otherwise. It is well settled principle of law that for recording conviction strong and corroborative evidence of unimpeachable character is required. It is golden principle of criminal justice that finding of guilt against accused must not be based on probabilities to be inferred from evidence. Such findings must rest surely and firmly on the evidence of unimpeachable character, otherwise, the golden rule of benefit of doubt would be reduced to naught. Absolute certainty is seldom in forming an opinion qua guilt or innocence of a person. The Courts by means of proper appraisal of evidence must be vigilant to dig out truth of the matter to ensure that no injustice is caused to either party.
13. For what has been discussed above, the prosecution has miserably failed to bring home the guilt of the appellant-accused as such the impugned judgment of the learned trial Court is the result of misreading and non-reading of evidence available on record and thereby wrongly convicted and sentenced the appellant-accused. Resultantly, this appeal was allowed and the following short order was passed which reads as under:-- "For the reasons to be recorded later on, we allow this appeal, set aside the conviction and sentence of the appellant-convict Sajjad Ahmad recorded by the learned trial Court vide judgment/order dated 31-1-2012 and hereby acquit him from the charges levelled against him in case FIR No,288, dated 10-11-2009, registered under sections 302/324, P.P.C. At Police Station Takht- e-Nasrati, Karak. He be set at liberty forthwith, if not required in any other case. On acquittal of the appellant, connected Cr. R. No,14-B of 2012, titled, "Misal Khan v, State etc." for enhancement of sentence has become infructuous, which stands dismissed as such". revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.