ISHTIAQ IBRAHIM, J:- This Criminal Appeal u/s 410 Cr.PC, is directed against the judgment dated 2.3.2016 passed by learned Sessions Judge, Karak, whereby Akhtar Nawaz, appellant, being involved in case FIR No. 163 dated 15.04.2014, registered u/ss 324/34 P.P.C, Police Station Karak, was convicted u/s 324 PPC and sentenced to undergo Six years imprisonment, half of which will be R.I while the rest will be S.I. He was burdened with fine of Rs.50,000/- and in default to suffer Six months SI at the conclusion of main imprisonment. The appellant was also directed to pay 1/3 of Diyat amount for the financial year 2013-14 amounting to Rs.7,24,859/- u/s 337-D P.P.C, in addition to ordered to pay Rs.2,00,000/- compensation to the injured u/s 544-A Cr.PC and in default he shall suffer six months SI. Benefit of Section 382-B Cr.PC was extended to the appellant/convict.
2. Gist of prosecution case is that complainant Rehmat Ullah was moving on motorbike from Mita Khel Bus/Taxi stand to the hujra of one Noor Ayub being driven by his brother Jehanad Ullah. When they reached the spot, there the appellant/convict alongwith co-accused Muhammad Riaz (now acquitted) while riding motorcycle driven by acquitted co- accused came behind them at the time of overtaking, the appellant fired at the complainant as a result of which he sustained injury on left side near ribs. Motive for the occurrence was disclosed as previous blood feud between the parties.
On the basis of his report present case was registered against both the accused.
3. Initially challan u/s 512 Cr.PC against accused was submitted as they were avoiding their lawful arrest. However, after rejection of pre-arrest bail of both the accused on different dates, they were arrested, interrogated and supplementary challans were submitted against them before the learned trial Court. After their formal indictment, the prosecution in order to bring home charge, examined the following eleven (11) witnesses:- PW.1 Muhammad Rehman No.399 has executed the warrants u/s 204 Cr.PC and proclamation notices u/s 87 Cr.PC issued against both the accused and submitted his reports on its back.
PW.2 Adam Saz No.664 is marginal witness to recovery memo Ex.PW.2/1 vide which the I.O, took into possession one Motorcycle Honda CD-70 bearing No.3689/RIL belonging to complainant from the spot. He is also marginal witness to recovery memo Ex.PW.2/2 vide which blood stained garments of complainant/injured were taken into possession by the I.O, in his presence.
Muhammad Riaz S.H.O (PW.3) submitted challan u/s 512 Cr.PC as well as supplementary challans against both the accused.
PW.4 Dr . Khalid Zamir SMO , had examined the injured Rehmat Ullah and found the following:
1. Entry wound on the left side of lumber spine about 1/2 cm diameter , margin black.
2. Exit wound on the left side abdomen, anteriorly 1 cm diameter margin averted abdomen tender/painful.
Corresponding holes present on Qamees. Kind of weapon: Firearm Probable duration of injury: About 1/2 hours Nature of Injury: RLO. On 14.5.2016 as per discharge slip of the Surgeon Dr.Ijaz Ahmad the natur e of injury was grievous. His report to this effect is Ex.PW .4/1.
PW.5 Mir Dad Khan ASI after rejection of BBA of appellant arrested him vide card of arrest Ex.PW .5/1. He obtained police custody of appellant, interrogated him, recor ded his statement u/s 161 Cr.PC and after expiry of police custody , he again produced before the Court who was remanded to judicial lockup. Thereafter , he handed over the case file to the S.H.O concerned for submission of supplementary challan against appellant.
PW.6 Muhammad Javed HC on receipt of murasila, had correctly incorporated its contents into F .I.R Ex.P A.
PW.7 Mujahid Nawaz No.561 had escorted the injured/complainant to the doctor concerned alongwith his injury sheet. After examination, the doctor handed over to him the blood stained garments of injured alongwith medico legal report, which handed over to the I.O.
PW.8 Yousaf Khan SI reduced the report of injured/complainant in the shape of murasila Ex.PW .8/1 in Emergency Room, KDA Hospital Karak. He prepared injury sheet Ex.PW .8/2 of injured and sent the murasila to the P.S, for registration of the case.
PW.9 is complainant/injured Rehmat Ullah who reiterated the stance which he had already narrated in his report Ex.PW .8/1 and charged both the accused for commission of of fence.
Jehandad Ullah(brother of complainant) was examined as PW.10 who supported the stance of complainant in his statement before the trial Court.
PW.11 Malik Jan then posted as ASI had conducted investigation in the present case. He prepared site plan Ex.PB at the instance of complainant and eye witness. Vide memo Ex.PW.2/1, he took into possession Motorcycle Honda belongign to injured/complainant from the spot. He recorded statements of PWs u/s 161 Cr.PC. He conducted house search of accused but they were not found there nor any incriminating was recovered therefrom.
Vide memo Ex.PW.2/2 he took into possession blood stained garments of injured sent by doctor through Mujahid Nawaz constable. He sent blood stained garments of injured to the F.S.L vide application Ex.PW.11/5 and after receiving its report Ex.PK, placed it on file. After obtaining warrants u/s 204 Cr.PC and proclamation notices u/s 87 Cr.PC from the Court concerned, he handed over the same to the DFC concerned for execution. He arrested the co-accused Muhammad Riaz after rejection of his pre-arrest bail by the competent Court. He also arrested the appellant and issued his Card of arrest.
4. On conclusion of prosecution evidence,accused were examined u/s 342 Cr.PC. However, they neither opted to be examined on oath nor wished to produce defence evidence. After hearing arguments of learned counsel for the parties and Prosecutor for the State, the learned trial Court convicted and sentenced the appellant whereas co- accused Muhammad Riaz was acquitted vide impugned judgment dated 02.03.2016. Hence, the present criminal appeal has been preferred by the appellant/convict for his acquittal whereas complainant has preferred connected Cr.R No.14-B/16 for enhancement of sentence of appellant. He has also filed the connected Cr.A No.70-B/2016 u/s 417(2A) against the acquittal order of co-accused Muhammad Riaz. This Court intends to dispose of all the three matters through single judgment as these have been directed against the findings of one and same judgment.
5. Learned counsel for the appellant contended that there are material contradictions in the statements of the eye witnesses; that the complainant has sustained solitary fire arm injury which bears blackening as well which belies the rest of circumstances of the case; that inspite of intense blood feud it is in the statements of complainant as well as other eye witness Jehandad Ullah that a solitary shot was fired by the appellant at the complainant; that neither empty shell nor blood has been recovered from the place of occurrence. Even the motorcycle of complainant was not having blood stains. He further contended that the persons in whose hujra the Jirga was to be convened were not produced during trial. He also referred to the statements of witnesses and pointed towards contradictions, improvements and variations and prayed for the acquittal of appellant.
6. The learned counsel for the complainant vehemently repelled the arguments of learned counsel for the appellant and submitted that the matter was reported within promptitude at the hospital. The complainant has sustained injury on the vital part of the body; that the appellant has been attributed the effective fire shot at the complainant and the prosecution has proved its case from all four corners; he also prayed for the enhancement of sentence, on acceptance of criminal revision No.14 B/2016 and contended for the conversion of acquittal of co-accused Muhammad Riaz by accepting Criminal Appeal No.70-B/2016.
7. Arguments of learned counsel for the parties,learned AAG for the State heard and gone through the record of the case.
8. The occurrence in this case which took placeat 9.00 am, its report was lodged in the shape of murasila in hospital at 09.35 am. In cross examination the complainant states that "after about 10 minutes of my arrival to the hospital, I became senseless at the time when I was being carried from Emergency to Operation Theater." Strange enough that the medico legal report is silent regarding the consciousness or orientation of the complainant. PW.4 Dr. Khalid Zamir in his Court statement has deposed that he has examined the injured Rehmat Ullah at 10.15 hours while author of the report Yousaf Khan SI(PW.8) testified before the Court that after scribing the report of the complainant, he prepared the injury sheet and referred the complainant for his medico legal examination. Evidence regarding lodging of the report by the complainant and his medico legal examination are irreconcilable and it can be safely presumed that the report was not made in the mode and manner as put forth by the prosecution. No doubt the complainant has sustained firearm injury on his person but mere injury on a prosecution witness is only indicative of his presence at the spot but is not the affirmati ve proof of its credibility and truth.
Reliance is placed on the case of "Muhammad Parvez Vs The State" (2007 SCMR 670) and Said Ahmad' s case (1981 SCMR 795 ).
9. The assertion of the complainant that they were proceeding to the hujra of Haji Noor Ayub is belied by the site plan wherein the hujra of said Noor Ayub has not been observed by Investigation Officer whereas complainant in his cross examination has testified that when taking turn towards the said hujra , the occurrence took place . Likewise, PW.10 Jehandad Ullah also stated in his cross examination that when they were about to take turn on motorcycle to the hujra of Noor Ayub, the occurrence took place . In site plan the Investigating Officer has only shown the house of one Anwar Iqbal while on either side of the road, fields have been observed by the Investigating Officer. Normally it is contended that site plan is not a substantive piece of evidence but in view of this Court, the site plan consists of two portions. One prepared by the Investigating Officer on the pointation of eye witnesses which is reproduction of statement recorded u/s 161 Cr.PC and the other is based on the observations of the Investigating Officer. The second portion is decidedly a substantive piece of evidence and in this context it will be advantageous to refer case of "Tori Singh & another Vs State of Uthar Pardesh"(AIR 1962 SC 399) wherein it was observed that: "the sketch map would be admissible so far as it indicates what the Investigation Officer saw himself at the spot.
But any mark put by the Investigating Officer at the instance of witnesses would be inadmissible in view of clear provision of Section 162 Cr .PC".
10. Doctor observed during medical examination the following injury: "Entry wound on the left side of lumber spine about 1/2 cm diameter, margin black".
Medico legal report Ex.PW.4/1, shows that initially "Margins Burnt" was observed by the doctor, which was slashed and initialed with "Margins Black". How the prosecution would account for the observation of the doctor regarding blackening or black margins on the injured when from the very inception their case is that the complainant was fired at by the appellant when both the parties were riding on two different motorcycles. Though at the stage of the trial the complainant deviated from his initial stance and in examination in chief he deposed that: "when they reached near the hujra of Noor Ayub and were about to take turn and stopp ed their motorcycle there, the occurrence took place " which is an abortive attempt on the part of complainant in order to meet the medical evidence.
Medical evidence also belies the ocular account.
11. Motive which led to the present tragedy is stated to be a blood feud which had taken so many lives as apparent from the evidence but it is very strange that the solitary fire shot was made at the complainant by the appellant that is something beyond comprehension when parties who are tagged in serious blood feud and had opportunity of attempting at the life of their adversary, would fire a solitary fire shot at him is a question for which no answer is available with prosecution.
Complainant at that point of time was at the mercy of their opponent, who was allegedly equipped with a pistol.
12. The prosecution version is further falsified bynon-recovery of empty and blood from the place of occurrence.
Even on the motorcycle of the complainant no blood stains were observed by the Investigating Of ficer.
13. It is cardinal principle of administration ofcriminal justice that prosecution is bound to prove its case beyond any shadow of doubt. If any reasonable doubt arises in the prosecution case, the 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 single reasonable doubt arising out of the prosecution evidence, is sufficient for acquittal of the accused. The prosecution has badly failed to prove its case against appellant/convict and acquitted co-accused (respondent in connected Cr.A No.70-P/2016), beyond any shadow of doubt. Reliance is placed on the cases of "Muhammad Akram Vs The State"(2009 SCMR 230, and "Tariq Parvez Vs The State"(1995 SCMR 1345).
14. For what has been discussed above, the present Criminal Appeal No.65-B/2016 is allowed, the conviction and sentence awarded to the appellant vide impugned judgment dated 2.3.2016, is set aside and the appellant/convict Akhtar Nawaz s/o Gul Chaman is acquitted from the charges levelled against him. He is in custody, be released forthwith if not wanted in any other case.
The connected Criminal Appeal No.70-B/2016 and Cr.Revision No.14-B/2016, preferred by the complainant against acquittal of accused Muhammad Riaz and for enhancement of conviction and sentence of appellant respectively are dismissed.