ASSADULLAH KHAN CHAMMKANI, J.---Appellants (1) Umar Gul and (2) Nazar Gul, have filed this appeal against the judgment dated 20-9-2010, passed by learned Additional Sessions Judge-I, Charsadda, whereby each of them has been convicted under section 302(b), P.P.C. And sentenced to undergo life imprisonment as Ta'zir and to pay a fine of Rs.1,50,000 each or in default thereof to undergo 2 years' S.I. Further. Each of them has also been held liable to pay Rs.2,50,000 in equal share, as compensation to L.Rs. Of the two deceased under section 544-A, Cr.P.C. Or in default thereof to undergo 6 months' S.I. Further. Similarly, under section 324, P.P.C. Each has been convicted and sentenced to undergo 5 years' R.I. And to pay a fine of Rs.10,000 or in default 'thereof to undergo 6 months' S.I. The sentences shall run concurrently. Benefit of section 382-B, Cr.P.C. Has been extended to them.
2. According to report of complainant Samar Khan, on the fateful day, the rainy water of Mian Gul's house was flowing through the street of complainant against which he complained Mian Gul for making arrangement to divert the flow of water from the street, but it infuriated Mian Gul, resultantly, he and his sons Umar Gul, Nazar Gul and Muhammad Gul, all armed with firearms came out of their house and opened fire at the complainant party, as a consequence whereof, complainant and Falak Niaz, who were working in the nearby mosque sustained firearm injuries.
While father of the complainant Bacha Gul and his brother Bashir Gul, because of the firing of the accused hit and died on the spot. In addition to complainant, the incident is stated to have witnessed his brother Siraj and mother Mst. Said Marjana as well as Falak Niaz. Report of the complainant was incorporated in murasila, on the basis of which F.I.R No.259 dated 13-8-2007, under sections 302/324/34, P.P.C. Was registered at Police Station Tarnab.
3. Initially challan under section 512, Cr.P.C. Was submitted against the accused. On their arrest, supplementary challan was submitted against them before the Trial Court while separate challan under the Juvenile Justice System Ordinance, was submitted against Juvenile accused Muhammad Gul. The learned Trial Court while complying with the mandatory provision of section 265-C, Cr.P.C. Charge sheeted the accused/appellants, to which they pleaded not guilty and claimed trial. To bring home guilt of the appellants, prosecution examined as many as seventeen witnesses. After closure of the prosecution evidence, statements of accused/appellants were recorded under section 342, Cr.P.C. Wherein they denied prosecution allegations and professed innocence. They, however, declined to be examined on oath under section 340(2), Cr.P.C. Or to produce evidence in defence. On conclusion of trial, learned trial Court, after hearing both the sides, convicted and sentenced the appellants, as mentioned above.
4. Learned counsel for the appellants argued that entire male members of accused's family have been implicated in the case falsely; that testimony of Samar Gul and Mst. Said Marjan, both closely related to the deceased are suffering from material contradictions and discrepancies, hence cannot be relied upon; that mere stamp of injuries on the person of complainant would not be a certificate that whatever he is speaking would be truth; that P.W. Siraj and Falak Niaz, have been abandoned by the prosecution, hence, adverse inference within the meaning of Article 129(g) of the Qanun-e-Shahadat Order, 1984 would be drawn; that in absence of substantive evidence mere recovery of blood and crime empties from the spot are not sufficient to prove the guilt of the appellants; that site plan is in conflict with the ocular account; that motive remained unproved; that no evidence whatsoever has been led against the accused to prove that they wilfully absconded. He argued that prosecution case is pregnant of doubts, benefit of which is to be extended to the appellants and they be acquitted.
5. Conversely, learned counsel for the complainant argued that appellants are directly charged for two murders and attempting at the lives of injured complainant and Falak Niaz; that injured complainant and P.W. Mst. Said Marjan have furnished true ocular account of the incident who are natural witnesses and the defence has failed to shatter their testimony during cross-examination; That their statements get corroboration from the site plan, recoveries therefrom, medical evidence coupled with long unexplained noticeable abscondence of the appellants; that prosecution has proved the guilt of appellants up to the hilt, through cogent and confidence inspiring evidence, therefore, the learned trial Court has rightly held them guilty of the offence. He sought dismissal of the appeal.
6. Learned A.A.-G. Adopted the arguments of learned counsel for the complainant and supported the impugned judgment.
7. We have given our conscious consideration to the respective arguments of learned counsel for the parties and perused the record with their able assistance.
8. Admittedly, in this unfortunate incident two persons have been done to death while two have sustained firearm injuries for which accused who are sons and father inter se are charged. The ocular account of the occurrence has been furnished by injured complainant Samar Khan as (P.W.8), who is brother of Bashir. Gul and son of Bacha Gul deceased, and Mst. Said Marjan (P.W.9), who is the widow of Bacha Gul and mother of Bashir Gul deceased. Both are closely related to the deceased. No doubt, mere relationship of a witness with the deceased or complainant, would not be sufficient to discard his/her testimony if his/her statement is straightforward, confidence inspiring and get corroboration from other strong pieces of evidence and circumstances of the case. However, the statements of such like witnesses are required to be scrutinized with great care and caution. Now we have assessed to as to whether the testimony of the above named two eyewitnesses fulfil the above mentioned essential requirements of credible evidence or not.
9. Samar Khan complainant appeared as P.W.8. In his statement, he besides reiterating the story set forth by him in his initial report, have introduced some new events and circumstances, probably to bring his statement in line with other circumstances of the case. He deposed that when he went to the house of Mian Gul telling him to manage for. Diversion of rainy water, he was armed with Topak. In his report he has not stated a single word about Mian Gul that he was armed with Topak at that moment. In his report he asserted that accused were armed with machines without specifying the kind of weapon, but in his statement he deposed that accused were armed with Kalashnikovs. While making the occurrence of two episodes and negating his earlier version he deposed in these words "At this moment my father and brother Bashir Gul also came there and told my uncle namely Mian Gul to make arrangement for the rain water, in meanwhile Umar Gul, Muhamamd Gul and Nazar Gul, came out with KKs and started firing upon us, and as a result of firing, my father and brother Bashir Gul got hit and died on the spot, while I and P.W. Falak Niaz sustained injuries, while Siraj escaped unhurt. There after, I went inside the house and informed other inmates of the house about the occurrence, but while coming back from our house, Nazar Gul and Muhammad Gul facing trial were standing, who started firing upon me, as a result of which I sustained injuries as well as one Falak Niaz also sustained injuries. We fell on the ground and thereafter the co-villagers shifted us to the hospital". A look over report of complainant Exh.PA/1 reveals that there is no mention of going inside the house of complainant after receipt of injuries and informing other inmates of the house. Similarly, there is no mention of the second firing when the complainant after informing inmates of the house came out from the house. Rather there is no mention of going and coming from the house in the report. Site plan also contradicts the stance of injured complainant. No trail of blood has been observed or mentioned therein to substantiate the movement of complaint from the spot to his house and then from his house to the spot. In cross-examination Samar Khan complainant was confronted with his statement recorded during proceedings under section 512, Cr.P.C. Wherein he has stated that accused Mian Gul was standing duly armed with Topak in front of his house, which negates his report, as well as his statement recorded in this trial. He while making his report doubtful in cross-examination admitted that after receipt of injuries he fell on the ground and become unconscious where from people shifted him to the hospital. So if he was unconscious that how he made the report, therefore, in the circumstances; the report of the complainant is highly doubtful that why in light of report of the complainant the site plan Exh.PB contradicts his version wherein injured complainant has been shown at point No.3, the accused at points Nos.7, 8, 9 and 10, while from point No.3, the places of accused, particularly, accused at point Nos.7 and 8 are not visible. Similarly, the places of deceased Shabir Gul and Bacha Gul at point Nos.l and 2 are also not visible from point No.3 i.e. The place of complainant, which create serious doubts in the prosecution case.
10. Mst. Said Marjan, the other alleged eye-witness of the incident appeared as P.W.9. She in the very examination-in-chief has totally shattered the prosecution case by introducing some new story that "On the day of occurrence I was present in my house when I heard hue and cry on which I along with Siraj came out and saw that the people of the village were separating the accused and the complainant party, thereafter the accused went to their house and came back duly armed and started firing at my husband Bacha Gul and my son Bashir Gul, Samar Khan and Siraj with intention to kill them". A look over report of complainant reveals that not a single word has been stated about altercation between the accused' and complainant party prior to occurrence and their separation by the people. Similarly, there is no mention that after altercation the accused party went inside their house and then again retracted to the spot with firearm and committed the crime. In her cross-examination she has totally negated P.W. Complainant on material aspects of the case.
11. Both the alleged eye-witnesses have failed to prove the occurrence in the mode and manner as alleged in the report. Rather, they have suppressed the actual facts of the incident. The impartial witness Falak Niaz has been abandoned for no good reason and in the circumstances, adverse inference within the meaning of Article 129(g) of the Qanun-e-Shahadat Order, 1984 would be drawn against the prosecution that had he been produced, he would not have supported the prosecution case.
12. No doubt, 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. Whereas we did not find the evience of the alleged eye-witnesses to be that of unimpeachable character and corroborated by other strong circumstances of the case.
13. No doubt, recovery of bloodstained earth from the places of two deceased, two injured, their bloodstained clothes, recovery of crime empties, medico legal and autopsy reports, established the murder of the deceased with fire arm and the injuries of the injured to be the result of firearm, but who committed the occurrence, shrouded in mystery because the testimony of the complainant and P.W. Mst. Said Marjan, being in gross conflict with each other and other circumstances of the case, cannot be believed and relied upon, therefore, the above mentioned K pieces of evidence being corroborative in nature, by itself would not be sufficient for proving the guilt of the accused and their conviction in absence of substantive evidence of unimpeachable character. In this regard reliance can placed on Riaz Ahmed's case (2010 SCM R 846), Ijaz Ahmed's case (1997 SCM R 1279) and Asadullah's case (PLD 1971 SC 541). It has been held by the apex Court in case titled, "Saifullah v. The State" (1985 SCM R 410), that when there is no eye-witness to be relied upon, then there is nothing, which can be corroborated by the recovery. 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. It is cardinal principle of administration of criminal justice that prosecution is bound to prove its case beyond any shadow of doubt. If any reasonable doubt arises in L the prosecution case, benefit of the same must be extended to the accused not as a grace or concession, but as a matter of right. Likewise, it is also well embedded principle of criminal justice that there is no need of so 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. 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 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.
14. As regard abscondence of the appellants, they have denied the same in their statements under section 342, Cr.P.C. Moreover, abscondence alone, cannot be a substitute for real evidence. It has been observed by the apex Court in Farman Ali and others' case (PLD 1980 SC 201) that abscondence by itself would be of no avail to prosecution in 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 SCM R 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. In the instant case, the prosecution evidence is highly discrepant, full of doubts and infirmities creating serious doubts in the prosecution case. The learned trial Court has not evaluated the evidence in its true perspective, and thus reached to an erroneous conclusion by holding the appellants guilty of the offence, therefore, the impugned judgment is not sustainable. Resultantly, this appeal was allowed, the conviction and sentence of the appellants were set aside, and they were acquitted of the charge levelled against them.
15. These are reasons of our short order of even date, which is reproduced below:-- "For reasons to be recorded later, we allow this appeal, set aside the conviction and sentence of the appellants, namely (1) Umar Gul and (2) Nazar Gul, recorded by learned trial Court/ Additional Sessions Judge-I, Charsadda, vide impugned judgment dated 20-9-2010, in case F.I.R. No. 259, dated 13-8-2007, registered under sections 302/324/34, P.P.C., at Police Station Tarnab, and hereby acquit them of the charge in the aforementioned case. They be set at liberty forthwith, if not required in any other case".