ASSADULLAH KHAN CHAMMKANI, J.---Instant criminal appeal has been filed by appellants (1)
Sami Ullah and (2) Balqiaz Ali Shah alias Atta Ullah against the judgment of learned Sessions Judge, Bannu dated 23-11-2011, whereby each one of them was convicted and sentenced under section 302(b), P.P.C. To undergo imprisonment for life as "Ta'zir" and to pay Rs,2,00,000 each, to LRs of deceased, as compensation within the meaning of section 544-A, Cr.P.C. Or in default thereof to undergo 6 months' S.I. Further. Similarly, they were further convicted and sentenced under section 324, P.P.C. To undergo imprisonment for five years, each. Both the sentences shall run concurrently and benefit of section 382-B, Cr.P.C. Was extended to them. However, co-accused Sikandar Hayat was acquitted.
2. Complainant-petitioner Mst. Kalsoom Bibi has filed connected Criminal R. No,01-8/2012, titled, "Mst. Kalsoom Bibi v. Sami Ullah etc." for enhancement of sentence of the appellants/convicts from life imprisonment to death and the State has filed Cr. A. No,69-B/2012, titled, "The State v. Sikandar Hayat" against acquittal of co-accused Sikandar Hayat. As, all the three matters are the outcome of same judgment of the trial Court dated 23-11-2011 in case F.I.R. 332 dated 5-11-2010, registered under sections 302/324/109/34, P.P.C., therefore, are going to dispose of through this common judgment.
3. The prosecution case as unfolded in the F.I.R. Is that on 5-11-2010 at 1940 hours, complainant Mst.
Kulsoom Bibi (P.W.11), in company of dead body of her father Umar Hayat deceased, and in presence of his brother Muhammad Shuja Khan (P. W.12), reported to Abbas Khan ASI (P.W.8), in emergency room of Civil Hospital Bannu, that on the fateful night, her father Umar Hayat Khan and brother Muhammad Shuja left their house for offering "Isha prayer"; that she followed them till small door of their house and at that moment, her father was going ahead while her brother Muhammad Shuja was following him. At 1920 hours, accused Atta Ullah Khan and Sami Ullah, duly armed with Kalashnikovs present there opened fire at her father and brother, as a result, her father was hit and fell on the ground while her brother luckily escaped unhurt. Accused, after the occurrence, decamped from the spot. Motive behind the occurrence is stated to be a dispute over landed property. Injured was shifted to hospital where he succumbed to the injuries. Report of complainant was reduced into writing in the shape of murasila, which was also verified by P.W. Muhammad Shajua and on the basis thereof, F.I.R. Mentioned above was registered.
4. Later on, accused Sikandar Khan was also charged for conspiracy of murder of the deceased with co-accused named above. After arrest of all the three accused and completion of investigation challan was submitted against them before the learned Trial Court, where they were formally charge sheeted, to which they pleaded not guilty and claimed trial. To prove their guilt, prosecution examined as many as thirteen witnesses. After closure of prosecution evidence, statements of accused under section 342, Cr.P.C. Were recorded wherein they denied the prosecution allegations and professed their innocence. Except accused Samiullah, rest of the two accused declined to be examined on oath under section 340(2), Cr.P.C. Or to produce evidence in defence. Accused Samiullah appeared as his own witness under section 340(2), Cr.P.C. And also produced defence evidence. On conclusion of trial, learned trial Court, after hearing both the sides, convicted and sentenced appellants Sami Ullah and Balqiaz alias Atta Ullah, as mentioned above, while acquitted co-accused Sikandar Hayat.
5. Learned counsel for the appellants-convicts argued that learned trial Court has not appreciated the evidence available on record in its true perspective and thus recorded conviction and sentence of the appellants on the basis of surmises and conjectures; that case has been registered after preliminary investigation; that identification of accused is highly doubtful as it was a night occurrence and no source of light has been disclosed by the complainant in her report; that medical evidence does not support the ocular account; that both the alleged eye-witnesses have contradicted each other on material aspects of the occurrence; that both have failed to established their presence on the spot; that according to Investigating Officer the places of accused and that of the deceased and P.W. Shuja are not visible from inside the small door of house of the complainant, which proves that complainant has not seen the occurrence; that escape of P.W. Muhammad Shuja or his let off by the assailants is not appealable to a prudent mind; that FSL report qua recovered crime empties negates the prosecution version; that the prosecution has miserably failed to bring home the guilt of appellants through cogent and confidence inspiring evidence rather the prosecution evidence is pregnant of doubts, benefit of which is to be extended to the appellants-convicts. He went on to say that no shred of evidence much less cogent has been brought on record to prove the conspiracy of co-accused Sikandar Hayat and he has rightly been acquitted by the learned trial Court.
6. Conversely, learned counsel for complainant argued that appellants-convicts are directly charged in a promptly lodged report; that 100 Wt bulb has been recovered from the spot and the parties are co-villagers inter se, so question of mistaken identity does not arise; that complainant and P.W. Muhammad Shuja have furnished truthful account of the incident and their testimony get corroborations from medical evidence as well as circumstantial evidence in the shape of recovery of blood from the spot, bloodstained garments of the deceased and crime empties coupled with medical evidence and noticeable abscondence of the accused which prove their guilty conscious.
He went on to say that prosecution has proved the guilt of accused-convict up to the hilt and they have rightly been held guilty of the offence, but the learned trial Court ought to have awarded them maximum punishment provided for the offence. He sought dismissal of the appeal of convicts and requested for enhancement of their sentence.
7. Learned A.A.-G. Adopted the arguments of learned counsel for complainant, however, added that sufficient evidence has been brought against accused Sikandar Hayat, therefore, he was also liable to be convicted and sentenced for the offence.
8. We have given our anxious consideration to the respective arguments of learned counsel for the parties and perused the record with their able assistance.
9. In this case the occurrence allegedly took place in the month of October at 1920 hours i,e, at night, which has been reported at 1940 hours by Mst. Kulsoom Bibi (P.W.11), daughter of Umar Hayat Khan deceased. A look over her report reveals that she has not disclosed about any source of light i,e, moon or that of electric bulb. However, when she appeared as P.W.11, in order to justify identification of the accused, disclosed that she identified the accused in light of electric bulb, but her statement does not get support from the statement of Abbas Khan ASI (P.W.8), who recorded her report. In cross-examination he deposed in these words "murasila was drafted word by word as per report of complainant. Prior to drafting the report I used to ask the complainant that how he or she identified the culprit whenever the occurrence has taken place at night time. In instant case had the complainant been mentioned in her report that the accused were identified by her through light of bulb then I would definitely mentioned the same in her report. The P.W. Self said that it was disclosed by the complainant that the accused were identified by her without any light". So had there been any light of bulb, she would have disclosed the same in her report. Later on, while making dishonest improvement she in her statement deposed that she identified the accused in electric bulb.
10. Besides, site plan Exh.PB has been prepared on her and on pointation of Muhammad Shuja (P.W.12), wherein at point No,1 deceased has been shown on a metalled road, P.W. Muhammad Shuja at point No.2 at the back of deceased, Mst. Kulsoom Bibi at Point No.3. Similarly, accused have been shown at point Nos.4 and 5 on a path. In her cross-examination Mst. Kulsoom Bibi deposed that she had not left her house at the time when the deceased and P.W. Muhammad Shuja left for the Mosque rather she was present near the gate at a distance of about two paces towards inside the house. Similar is. The statement of other alleged eye-witness Muhammad Shuja (P.W.12) but testimony of both these witnesses have "been contradicted by Zahidullah Khan S.I., who conducted investigation in the case. He deposed in these words, "if a person is present inside the small gate of the house of complainant then he could not see the persons present at points Nos.1 and 2 as well as at points Nos.4 and 5". Both the eyewitnesses have admitted rice crops in the field of one Ghulam Rabbani near the place of incident. Similarly, the I.O. Has also admitted the factum of availability of rice crops in the adjacent fields of the crime venue. I.O. Has further clarified that if any person sat inside the said rice crops, he would not be visible. In the circumstances, question arises that if the assailant/assailants had chosen night time and there was rice crops in which they could easily conceal their identity, then what was need to disclose their identity before the complainant and P.W. Muhammad Shuja rather they could easily accomplish their task from the rice crops.
Moreso, P.W. Muhammad Shuja has been shown in close proximity with the deceased Umar Hayat i,e, at a distance of 4 paces while accused have been shown at a distance of 8 to 10 paces, but he has not received any firearm injury despite the fact that he was at the mercy of the assailants, who had common motive of land dispute with both the deceased as well as P.W. Muhammad Shuja being father and son inter se. It is not the case of the prosecution that P.W. Muhammad Shuja took shelter somewhere at the time of firing or that he entered his house. So his escape or let off by the accused is highly improbable because the assailants whose hands were coloured with the blood of father of P.W. Muhammad Shuja would never spared him, had he been present with the deceased, as no assailant in such circumstances would take a risk to leave evidence behind them or to spare a son to take revenge of murder of his father from the assailant tomorrow. Both the alleged eye-witnesses have admitted that their house has two gates and village mosque is close to the main gate of their house. Similar position has been shown in the site plan. Complainant alleged that deceased and P.W. Muhammad Shuja were going to village mosque for offering "Issha prayer", so if village mosque was near towards the main gate, why the deceased and P.W. Adopted the way through small gate. To this effect no plausible explanation has been furnished by the complainant or P.W. Muhammad Shuja.
11. Both Mst. Kulsoom Bibi (P.W.11) and Muhammad Shuja (P.W.12), in their cross-examination deposed that when their father was hit they lifted him to the motor car and during this process their hands and clothes were smeared with his blood, but they have not produced said clothes to the I.O. So as to prove their presence with the deceased. Both the P. Ws. Do not know about the nature and number of the firing made by the accused. Mst. Kulsoom Bibi deposed in these words "When the firing started, I cannot understand that whether it was burst firing or single firing. I cannot say that for how much time the firing continued. Similarly I cannot say that how much firing was made by each of the accused or in toto by both the accused". This statement of Mst.
Kulsoom Bibi seems very strange, had she been present she would be able to give all these details.
Similarly, Muhammad Shuja (P.W.12) also does not know about all these details. He deposed in these words "I cannot say that how much firing was made by each of the accused as well as by both of the accused. I do not know that accused made burst firing or single firing". Ignorance of both the P. Ws. About duration and nature of firing, makes their presence on the IC spot highly doubtful.
12. Perusal of statement of Mst. Kulsoom Bibi reveals that F.I.R. Has been registered after preliminary investigation. She deposed that it took 15/20 minutes while reaching hospital. During treatment her father expired in emergency. Room of DHQ hospital Bannu and after his death, she lodge report to casualty police. This clearly shows that deceased then injured was administered first aid before report and after his death, report was made. Medical officer who examined the injured first has not been made witness. Dr. Khalid Farooq who conducted autopsy on the dead body of the deceased appeared as P.W.3. In cross-examination he deposed that on the night of occurrence he was present in his house where he received information about dead body to the mortuary, wherefrom he proceeded to hospital in ambulance; that he left his house at about 8-30 or 9 p.m.; that wounds of the dead body were stitched slightly and therefore, he asked the escorting FC about the said fact and it was disclosed to him that deceased was brought to the casualty in injured condition and was examined. Moreover, medical evidence also does not support the ocular account. As per statement of alleged eyewitnesses the accused were at the back of the deceased. In such circumstances, injuries on the body of the deceased should have been observed from back to front, but according to medical officer the direction of inlet wound Nos.3 and 5 was from left to right side.
13. As regard recovery of 6 crimes empties from the spot. The same have been sent to the FSL, but the FSL report negates the ocular account because according to which, these empties have been fired from one and the same weapon whereas the role of firing has been attributed to two accused without specification of the fatal shot to any one of them. F No weapon of offence has been recovered from any of the accused to send it to the FSL' for matching with the recovered crime empties. So this piece of evidence in absence of direct evidence of the prosecution which has been disbelieved would not advance the case of the prosecution.
14. As regard the case of acquitted co-accused against whom complainant has levelled the allegations of conspiracy. In cross-examination Mst. Kulsoom Bibi deposed that she heard Sikandar Hayat when he was making conspiracy of murder of her father with ,his co-accused in her house as they have contiguous houses and the intervening wall is also broken; that the said conspiracy was held within a month prior to the present occurrence. According to her she had not disclosed about the said conspiracy to her brother P.W. Muhammad Shuja while according to Muhammad Shuja, she had disclosed him about the said conspiracy. Both the P.Ws. Have failed to point out the date, day, time and other details of the alleged conspiracy nor they have registered any case against Sikandar Hayat on the same date charging him for said conspiracy. No shred of evidence much less cogent has been brought on record by the prosecution to prove the guilt of co-accused Sikandar Hayat and the learned trial Court in the circumstances was quite justified by acquitting him of the charge, to which no exception can be taken.
15. In view of the above discussion we have reached to an irrepressible conclusion that the prosecution has miserably failed to prove the guilt of appellants-convict through cogent and confidence inspiring evidence. The peculiar facts and circumstances of the case reveals that the occurrence has not taken place in the mode and manner as alleged by the prosecution because both the alleged eyewitnesses have failed to establish their presence on the spot with the deceased.
16. As regard abscondence of the appellants. They have denied the same in their statements under section 342, Cr.P.C. It is settled law that abscondence alone, cannot be a substitute for real evidence. It has been observed by the apex Court in Farman All and others's case (PLD 1980 SC 201) that abscondence by itself would be of no avail to prosecution in I absence of any other evidence against the absconding accused. Mere abscondence of accused would not be enough to sustain his conviction. Wisdom in this regard may be derived from case titled, "Muhammad v.
Pesham Khan" (1986 SCMR 823). Since there is no credible evidence to support the prosecution version, so abscondence, itself, would not be sufficient to prove the guilt of the accused. According to golden principle of benefit of doubt, one substantial doubt is enough for acquittal of the accused. 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 K 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. The learned trial Court has not evaluated the evidence in its true perspective thus reached to an erroneous conclusion by holding the appellant guilty of the offence, therefore, the impugned conviction and sentence are not sustainable. Resultantly, this appeal was allowed. Conviction and sentence of the appellants were set aside and they were acquitted of the charge while connected criminal appeal against acquittal of accused Sikandar Hayat being without any substance, was dismissed.
17. These are the reasons of our short order of even date, which is reproduced below:- For reasons to be recorded later through detailed judgment, we allow this appeal, set aside the conviction and sentence of the appellants (1) Samiullah and (2) Balqiaz Ali Shah, recorded by the trial Court vide impugned judgment dated 23-11-2011, in case F.I.R. No,332 dated 5-11-2010, registered under sections 302/324/109/34, P.P.C. At Police Station Ghoriwala, District Bannu hereby acquit both the appellants/convicts of the charges. They be set at liberty forthwith, if not required in any other case. On acquittal of the appellants, connected Cr. R. 1-B/2012, titled, "Mst. Kalsoom Bibi v.
The State etc." has become infructuous, which stands dismissed as such.