ABDUL LATIF KHAN, J.---On 2-1-1999 Gul Noor Khan, P.W.8, was busy in investigation in case FIR No. 19, under sections 324/436/148/149, P.P.C., Police Station, Sheringle, when at 08.40 hours, he met with Muhammad Hayat, complainant, who reported to him that on 1-1-1990 he was present in his house, at 16.15 hours, Abaidullah, Farooq, Zafar, Toti, Gul Zaman Khan, Jan Said, Ghulam Sar Khan, Shah Zaman, Hazrat Amin, Babo Khan, Sher Dil Khan, Sardar Khan, Mumtaz Khan, Ghulam Rashid and Umar Khaliq started indiscriminate firing at the inhabitants of village, Achar Paian, due to which his father Gulab Khan, Mst. Aya Mana and Bakht Sardara were hit and died on the spot while Sardar Ali, Sadbar Khan and Mst. Bano received injuries. The accused also set on fire the houses of Abdul Baqi, Painda, Abdur Raziq and Sardar Ali wherein house hold articles and cattle were burnt. Motive for the offence was stated to be dispute over `Showara' and previous blood feud enmity while the occurrence was stated to be witnessed by inhabitants of area. Delay in lodging of report was stated to be occurred due to fear of the accused ar d burial ceremony of the deceased. The report of the complainant was recorded in shape of Mursilla, Ex.PA, culminated in registration of case FIR No. 20 under sections 302/324/436/429/148/149, P.P.C. At Police Station, Sheringal, on 2-1-1999.
2. After registration of case, P.W.8, conducted investigation in the case. He prepared the site plan, Exh.PB, at the instance of eye-witnesses and during spot inspection secured some blood stained earth from places of deceased, 70 empties of 7.62 bore, pieces in shape of iron rod, blood stained garments of the deceased and took the same vide recovery memo. Exh.P.0 and Exh.PC/1. On 3-1- 1999, one of the injured Sardar Ali was also died. Since accused are 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 in the case was submitted. Later on, accused Jehan Said, Mumtaz, Ghulam Sar Khan, Sardar Khan, Babo Khan, Ghulam Rashid, Umar Khaliq, Gul Zaman, Ghulam Muhammad, Shah Zaman and Sher Dil were arrested and supplementary challan against them was submitted. During trial legal heirs of deceased and injured patched up the matter with them and they were acquitted of the charges on the basis of compromise on 22-7-2000, while the convict-appellant along with Farooq and Hazrat Amin accused were declared as proclaimed offenders.
3.. On 11-7-2011, the convict/appellant was arrested and supplementary challan against him was submitted. Learned trial Court after complying with the provisions of section 265-C, Cr.P.C., formally charge sheet him, in which he pleaded not guilty and opted to face the trial. Prosecution in order to prove its case produced eight P.Ws. Learned trial Court, thereafter, examined the convict/appellant under section 342, Cr.P.C. Wherein he claimed to be innocent and false implication, however, he was neither ready to be examined on oath nor produce defence. Learned trial Court after hearing the parties convicted and sentenced the convict/appellant as Under:-
(i) Under sections 302(b)/149, P.P.C. To death (on four counts) and also directed to pay Rs. 2,00,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of each deceased or in default thereof to undergo SI for one year.
(ii) Under sections 324/149, P.P.C. To suffer R.I for ten years and also to pay Rs. 50,000 as fine or in default thereof to undergo S.I for six months.
(iii) Under sections 337-F(iii)/149, P.P.C. To suffer RI for three years and further directed to pay Rs.
50,000 as Daman to the injured Mst. Bano failing which was directed to be dealt with in accordance with the provisions of section 337-Y(2), P.P.C. With further payment of Rs. 50,000 as compensation to injured Mst. Bano or in default thereof to undergo SI for six months.
(iv) Under sections 429/149, P.P.C. To suffer RI for five years and to pay Rs. One lac as fine, if recovered, was ordered to be distributed amongst owners of the burnt dwelling houses, namely, Mst. Naseeb Khela, Mst. Bano, Abdur Raziq and Abdul Baqi in equal shares or in default thereof to undergo SI for one year.
(v) Under sections 436/149, P.P.C. To undergo RI for five years and also to pay Rs. 40,000 as fine or in default thereof to undergo SI for four months and
(vi) Under sections 148/149, P.P.C. To undergo RI for three years and also to pay fine of Rs. 20,000 or in default thereof to undergo SI for two months.
4. Feeling aggrieved from his conviction and sentence, the appellant filed criminal Appeal No. 193 of 2012 while learned trial Court has sent Murder Reference No.7 of 2012. We intend to dispose of the same through this single judgment.
4.(sic.) Learned Counsel for appellants-convict contended that fifteen persons have been charged for the murder of four deceased and causing injuries to Mst. Bano and Sadbar but with no specific role, out of them, eleven have been acquitted of the charge on the basis of compromise while three are still at large. He submitted that there is sixteen hours delay in lodging of the report, therefore, question of deliberation and consultation could not be ruled out. He contended that report has been drafted after preliminary investigation, burial ceremony of the deceased and medical examination of the injured. He added that there are glaring contradictions in the statements of eye-witnesses and site plan completely contradicts the testimony of ocular account and Investigating Officer. He added that seventy crime empties were recovered from the spot but the same were not sent to FSL. He added that the trial Court has not scrutinized the evidence of prosecution witnesses in accordance with recognized principles of appreciation of evidence available on record rather based its judgment on the basis of conjecture and surmises, therefore, the impugned judgment of conviction is against the law and without any cogent evidence, as such, the same is liable to be set aside and the appellant be acquitted of the charge.
5. As against that learned AAG appearing on behalf of the State and counsel for the complainant contended that the convict-appellant has been charged by name by the complainant and the version of complainant has been corroborated by the testimony of Naseeb Kbella and injured witness Mst. Banno, medical officer, Investigating Officer, recovery of seventy empties coupled with longstanding abscondance. They contended that the prosecution proved its case against the convict-appellant beyond any shadow of doubt and further submitted that, though, there are minor discrepancies in the evidence of prosecution but the same were not fatal to the prosecution case.
6. We have considered arguments of learned counsel for parties and have gone through record of the case with their able assistance.
7. The record reveals that fifteen person have been charged in the FIR for the murder four persons besides causing injury to Mst. Bano and Sadbar with no specific role., Out of the fifteen accused, eleven have been acquitted of the charge by the trial Court on the basis of compromise on 22-7- 2000 while three are still at large. There is not only sixteen hours delay in lodging of the report but also doubt regarding the place of making of report and it seems to have been lodged after consultation, deliberation and preliminary investigation. According to prosecution story, the occurrence took place on 1-1-1999 at 16.15 hours while report has been lodged on the following day at 08.40 hours. According to P.W.8 report has been recorded on the way leading to village `noon' while complainant in his cross-examination deposed that police had come to his house where he reported the matter to them. Mst. Bano, P.W.3, deposed that on the following day at 10.00 hours they started for Sheringal hospital and on the way at place `Saiah' they met with police and gave statement to police. Naseeb Khella, P.W.A, deposed that the injured were shifted to hospital on the night of occurrence and she had gone to hospital, Sheringal, in the company of injured Sardar Ali, where report was lodged. Gul Noor Khan, P.W.8, who recorded report of complainant and investigated the case, deposed that he was busy in investigation in another criminal case. When complainant lodged report to him. He deposed in his cross-examination that distance between place of occurrence, and police station is 7/8 kilometres. He deposed that the injured met with him on the way of village `Doon', where their statements were recorded at 10-00 a.m. Whereas the injured were examined by the Medical Officer at 9-00 a.m. To 9-40 a.m., i.e., before the preparation of their injury sheets. The perusal of injury Sheet of Sardar Ali, Exh.P.W.8/9, reveals that it bears the date beneath the signature of scribe as 1-1-1998 and P.W.4 also deposed that the injured were shifted on the same night to hospital. P.W.8 deposed that he had visited the house of complainant on 2-1-1999 in connection with investigation in another criminal case but the same has not been established because neither FIR of the said case has been placed on file nor daily diary in this respect was produced and his such statement has also been negated by the statement of P.W.2, complainant, who deposed that neither on the day of occurrence nor on the following day firing took place in his village. According to the statements of P.Ws., the fight was continued for one hour and the Police Station was situated at 7/8 km's distance, it is unbelievable that in such a close distance the police would have not heard the report of firing or unaware about the gory tragedy as four persons were done to death and two injured in the unfortunate incident, which makes the story of prosecution doubtful.
8. There are also sharp contradictions in the statements of P.Ws. According to P.W.8 report was recorded on the way of village `Doors' while P.W.2, complainant, deposed that police had come to his house where he lodged a report. The spot is alleged to have been inspected on the pointation of complainant but, astonishingly, there is no place of his presence in the site plan. Mst. Bano, P.W.3, candidly admitted that since the accused were not known to them, therefore, she could not tell the names of all the fifteen accused. She deposed that firing was made by the people of her village as well as people of village Achare. She further stated that firing was made from the trenches and behind the trees but Naseeb Khella, P.W.4, negated her statement by deposing that firing was not made from the trenches and behind the trees rather the accused came to their house. She stated that numerous people were firing from village `Achar'.
The scrutiny of the ocular evidence makes it clear that all the three witnesses failed to prove that they are truthful witnesses, as there is not only contradictions but also the fact that the spot is situated in hilly area, as per statement of I.O., and the fight was also amongst the inhabitants of two villages, therefore, identification of each and every accused by names was impossible for them, particularly, for the female witnesses, therefore, their testimony is neither believable nor confidence inspiring. Though, one of the witnesses, namely, Mst. Bano, having stamp of injuries and her presence on the spot is not disputed one but mere presence of stamp of injuries on her person is not a yardstick for determining her truthfulness or falsehood because it cannot be believed that every injured witness would speak truth and every unhurt eyewitness would tell a lie. It is the circumstances of the case and intrinsic worth of his statement that determines the veracity and credibility of a witness. The testimony of injured witness is to be tested on the principles F applied for appreciation of any other prosecution witness. Wisdom is derived from the case Amin Ali and another v. The State (2011 SCMR 323) wherein it has been observed that presence of injured witness cannot be doubted at place of incident, merely because he has injuries on his person but does not stamp him to a truthful witness. It is fundamental principle of criminal jurisprudence, that is, to disbelieve a witness, it is not necessary that there should be numerous infirmities and if there is one which impeaches the credibility of the witness that may make the entire statement doubtful.
9. The record divulges that fifteen persons were charged for indiscriminate firing at the deceased and injured and the Investigating Officer allegedly recovered seventy (70) crime empties from the crime spot. The basic duty of the prosecution was to prove the participation of each and every accused in the commission of offence but strange enough to observe that the I.O. Has not sent these empties to FSL to clarify the position as to whether it was the job of a single person or otherwise, particularly, in the absence of postmortem reports of the deceased, so, it was incumbent upon the Investigating Officer to have sent the recovered empties to laboratory to ascertain as to whether the empties were fired from one or different weapons.
10. Quite apart from the above, P.Ws. Stated in their statements that inhabitants of village were present but prosecution failed to produce anyone from those persons and even the injured P.W.
Sadbar was not produced to lend corroboration to the prosecution story. It is a case of murder in which death or life imprisonment can be awarded. In such like cases, the prosecution is always bound to corroborate through some independent sources which is totally lacking in the instant case except the statements of three alleged eye-witnesses who are admittedly closely related to the deceased. It is settled principle of law that if a best piece of evidence available with a party is withheld, then it is presumed that the said party has some sinister motive behind, for withholding the same piece of evidence.
11. Admittedly, the appellant remained absconder for sufficient period 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.
12. The defence has established number of serious doubts, which have damaged the entire prosecution case and honourable the apex Court in a case of Ghulam Qadir v. State reported (2008 SCMR 1221) has observed that for the purpose of benefit of doubt to an accused, more than one infirmity is not required. Single infirmity creates reasonable doubt in the mind of reasonable and prudent person regarding the truth of charge, makes the whole case doubtful. It is a recognized principle of appreciation of evidence that the benefit of all favourable instances in the prosecution evidence must go to the accused, regardless of the fact whether he has taken any such plea or not. In the instant case, the evidence of the prosecution witnesses is neither trustworthy nor confidence inspiring nor consistent to establish accusation against the appellant; therefore, the possibility of appellant being falsely implicated, cannot be ruled out. Where more than one possibility appears in the case, then the possibility in favour of accused is always to be preferred for simple reason that benefit of doubt is never to be extended to the prosecution and is always given to the accused. Any room for benefit of doubt in the prosecution case will go to accused and not to prosecution. The rule of benefit of doubt, which described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. The above discussion of material facts with regard to the making of report and the way the investigation was conducted would lead one to the conclusion that extreme dishonesty has been committed by the Investigating Officer and it seems that the FIR has been lodged after considerable consultations, deliberation and after conducting preliminary investigation in the case.
For the aforesaid reasons, while extending the benefit of doubt, we allow this appeal, set aside conviction and sentences of the appellant and acquit him of the charges leveled against him. He be released forthwith, if not required in any other case. Similarly, Murder Reference No.7 of 2012 is answered in negative.
These are the reasons of our short order of even date.