LAL JAN KHA TTAK, J.- Our this judgment shall also decide Cr.A. 300-P of 2016, Cr.R. 148-P of 2011 and Cr.R.70-P of 2016 as all the four matters have emanated from same FIR.
2. Brief facts of the case are that on 8.6.20 10 complainant Jalil Said, in injured condition, reported to Javed Khan, ASI in Civil Hospital Yar Hussain, Swabi to the effect that he and Zahir Muhammad (deceased) were returning to their village and when they reached at Loharan mosque near Sard Cheena, there Akbar Ali alias Tor and Ghaffar Ali both sons of Sardar Ali started firing at them with lethal weapons with which he got injured while Zahir Muhammad died on the spot. According to the FIR, the occurrence was witnessed by Zamin Said and Ajoon Shah. Motive for the occurrence was stated to be a verbal altercation having taken place between the complainant side and the accused party 2/3 days prior to the present occurrence.
3. On the basis of ibid information, formal FIR bearing No.426 dated 8.6.2010 was chalked out u/ss 302/324/34 PPC at Police Station Yar Hussain, Swabi against appellants Ghaffar Ali and his brother Akbar Ali, who after the occurrence, went into hiding and proceedings u/s 512 Cr.P.C. were initiated against them. Appellant Ghaffar Ali was, however, arrested on 26.11.2010 and challan against him was submitted into court, which indicted him for the offence to which he pleaded not guilty and claimed trial.
4. At the trial, prosecution in order to prove its case against the accused, produced and examined 10 witnesses whereafter statement of the accused was recorded, wherein, he professed innocence. The learned trial court, after conclusion of the trial, found him guilty of the charge and vide judgment dated 3.8.2011 convicted and sentenced him as under:- U/s 302/34 PPC.
To life imprisonment (25 years rigorous imprisonment) as Tazir with payment of Rs.2,00,000/- as compensation to the legal heirs of the deceased or in default thereof to undergo six months SI.
U/s 324 PPC.
To seven years RI with a fine of Rs.20,000/- or in default thereof to suffer four months SI.
U/s 337-F(v) PPC.
To three years RI with payment of Daman amounting to Rs.50,000/- and till the payment of Daman, the accused was ordered to be kept in jail and be dealt with in the manner as if he was sentenced to simple imprisonment unless Daman is paid to the injured.
5. All the sentences were directed to run concurrently with benefit of Section 382-B Cr.P.C.
6. Appellant Ghaffar Ali has impugned his conviction and sentence through Appeal No.509/201 1 while Sher Muhammad, father of the deceased, has filed Cr.R.148-P of 2011 for enhancement of the sentence from life to death.
7. During pendency of the ibid appeal, co-accused Akbar Ali was arrested on 18.1.2013 and his challan was put in court. The prosecution after framing of charge examined 12 witnesses to prove its case, whereafter statement of the accused u/s 342 Cr.P.C. was recorded, wherein, he professed innocence. The learned trial court, after conclusion of the trial, found him guilty of the charge and vide judgment dated 20.4.2016 convicted and sentenced him as under:- U/s 302(b) PPC for Qatl-e-Amad of Zahir Muhammad.
To imprisonment for life as Taazir with payment of Rs.2,00,000/- as compens ation to the legal heirs of the deceased or in default thereof to undergo six months imprisonment.
U/s 324 PPC for having attempted at the life of Jalil Said.
To imprisonment for seven years with fine of Rs.20,000/- or in default thereof to suffer imprisonment for four months. U/s 337-F PPC.
To imprisonment for three years as Taazir with payment of Daman to the tune of Rs.50,000/- to victim Jalil Said for causing him Jurh Ghayr Jaifah Hashima.
8. All the sentences were directed to run concurrently with benefit of Section 382-B Cr.P.C.
9. Appellant Akbar Ali has questioned his conviction and sentence through his Appeal No.300-P of 2016 while Miraj Muhammad, brother of deceased, has filed Cr.R. No. 70-P of 2016 for enhancement of the sentence from life to death.
10. As all the four matters have sprung up from same FIR, therefore, are being disposed of through this single judgment.
11. Learned counsel for the appellants argued that the occurrence reported in the FIR seemingly has been committed by a single person for which two persons have been charged with malafide intention; that participation of two persons in the act reported gets no corroboration from circumstantial aspect of the case; that medical examination of the victims has negated the prosecution version; that prosecution has not proved its case against the appellants through concrete, worth reliable and confidence inspiring evidence, which is hallmark of criminal law; that testimony of the injured witness, namely, Jalil Said has not been corroborated by any independent source, therefore, no credence could be given to it; that the prosecution evidence is pregnant with dishonest improvements; that no empty has been recovered from the spot and that no specification of the weapons of offence has been given in the FIR. Learned counsel for the appellants relied upon the following judgments in support of the appeals:- PLD 1980 SC 2011, 1996 SCMR 1411, 1998 SCMR 1823, PLD 2003 SC 14, 2007 SCMR 670 and 2011 SCMR 323.
12. As against the above, learned counsel for the complainant argued that through corroborated and reliable evidence, the prosecution has proved its case against the appellants as the ocular account furnished by the prosecution is duly supported by medical examination of the victims, absconcion of the appellants and motive of the case. It was further argued by the learned counsel that on acceptance of the Cr.Rs. 148-P of 2011 and 70-P of 2016, the sentences awarded to the appellants be enhanced from imprisonment for life to the normal penalty of death. In support of his arguments, the learned counsel relied upon the following case law:- PLD 1974 SC 65, PLD 1996 SC 138, 1971 SCMR 462, 1996 SCMR 908, 2000 SCMR 919, 2001 SCMR 387 and 2008 SCMR 688.
13. Learned AAG adopted the arguments of learned counsel for the complainant.
Arguments heard and record gone through.
14. Perusal of the case record would show that in support of its case prosecution has examined complainant of the case, namely, Jalil Said as PW-7, who deposed that on the day of occurrence he, Zamin Said (abandoned PW) and Ajoon Shah (PW-8) were coming from Mandro Wand to their village and when they reached near Loharan mosque, there both the appellants were standing, who resorted to indiscriminate firing at them with which he was injured and Zahir Muhammad died. Motive for the occurrence was stated to be a verbal altercation having taken place between the appellants' side and the accused three days prior to the present occurrence.
15. Ajoon Shah appeared before the court as PW-8 (PW-9 in Cr.A. 300-P of 2016), who deposed that on the day Of occurrence, he, deceased Zahir Muhammad, Zamin Said and Jalil Said, after finishing their zamindara work in their fields, were returning their village and when they reached near the Loharan mosque, there the appellants started indiscriminate firing at the deceased Zahir Muhammad and Jalil Said with klashnikovs with which Jalil Said was injured while Zahir Muhammad died on the spot.
16. In order to prove its case, prosecution has furnished ocular account of the occurre nce by producing PW-7 and PW-8 but the question is whether both the witnesses were present on the spot when the occurrence had taken place? To answer the above question first, we will discuss the testimony of PW-8, namely, Ajoon Shah. Though this witness claims to be an eyewitness to the occurrence but it appeared to us that he was not present on the spot at the time when the incident took place as it was not the complainant's case that PW-7 was with them at the time they were fired upon. In murasila Ex.PA/1, complainant has only reported that he and deceased Zahir Muhammad were returning to their village from their lands. Nowhere he has mentioned in his report that PW-8 Ajoon Shah was accompanying them. True that at the tale end of his report, complainant has cited Ajoon Shah as an eyewitness to the occurrence but in the FIR his coming alongwith the complainant and deceased has not been mentioned. Likewise, it was not the complainant's case in the FIR that PW-8 was already present on the spot where the occurrence had taken place. No doubt, PW-8 deposed in the court that he, deceased and the complainant, after finishing their zamindara work, were on their way to the village but as the complainant has not so reported in the FIR, therefore, no credence could be attached to the deposition of Ajoon Shah.
17. Furthermore, Investigating Officer of the case (PW-10) after visiting the spot prepared site plan of the case on pointation of PW-8, wherein, he has been shown at Point No.6, which is at a distance of 12 and 8 paces from Points 3 and 4, i.e. places of both the appellants. It is in the testimony of Ajoon Shah that he and abandoned PW Zamin Said were also fired upon by the appellants but they escaped unhurt. It is also in his evidence that total 30 shots were fired by the appellants. Question would arise whether from a close range of 8 to 12 paces a target can be missed when fired indiscriminately with klashnikovs by two persons simultaneously? Answer to the above question would be in negative as in the ordinary course of event, under no circumspect, a target of 5/6 feet taller and about 1 1/2 feet in width can be spared when fired with klashnikov from a close range of 8 to 12 paces. Above discussion has led this court to hold that PW-8 was not present on the spot when the occurrence had taken place. Therefore, we exclude his evidence from consideration.
18. Now we come to the testimony furnished by complainant Jalil Said PW-7. No doubt, he bears stamp of firearm injuries on his body but question for determination before this court is whether he has presented a true and accurate picture of the occurrence before the court? Our answer to the above question is that despite the fact that he has suffered firearm injuries on his body but even then he cannot be declared as a truer in the present case because according to his testimony after hitting with the fire shots of the appellants, he fell to the ground where he remained for about five minutes. According to his medical examination, he had suffered three firearm entry wounds on outer and front upper part of his left thigh (Ex.PW-1/1), however, as per site plan of the case Ex.PB, no blood was found and recovered from the place where the complainant had fallen and remained for five minutes after the occurrence. Keeping in view the locale of injuries on his person and the duration for which he remained on the ground, non- recovery of blood from the spot is not understandable. Had he been hit where he had fallen, some blood must have been there but absence of any blood from the spot casts serious doubt qua his presence on the spot of the case.
19. Another important aspect of the case is that per statement of PW-8, some 30 shots were fired by the appellants but neither any empty has been recovered from the spot nor any spent bullet was taken into possession by the investigating agency. Likewise, no bullet marks were noticed by the Investigating Officer on the outer walls of the houses where the occurrence had taken place. In addition, the complainant has not given any specification of the weapons used in commission of the offence. He only stated in the FIR that the appellants had fired with lethal weapons. Though PW-8 has deposed that the firing was unleashed with klashnikovs but as he has not been corroborated either by the complainant nor by recovery of any crime empties from the spot, therefore, no credence could be given to his testimony.
20. Moreover , evidence given by Medical Officer Dr.Akhtar Ali (PW-1) is also worth perusal, who noted three firearm entry wounds of 5x5 cm each on the complainant's body. Likewise, on body of the deceased he noted a single firearm entry wound of 5x1 cm in diameter. Dimensions of wounds noted on persons of both the victims has led this court to believe that doer of the act narrated by complainant in the FIR was a single person but through exaggeration, two persons have been charged for the offence. Had a single person been charged by the complainant for firing at him and the deceased, situation would have been different but as he has charged two persons and that too being brothers inter se without giving specification of the weapons used in the crime and the fact that no empty has been recovered from the spot, so as to know whether two weapons were used in commission of offence and keeping in view similarity of dimensions of the entry wounds of both the victims, we hold that the complainant has given an exaggerated account of the occurrence by involving two persons therein. As there is no corroboration to his testimony from any independent source, therefore, his deposition cannot be relied upon for safe administration of criminal justice.
21. Though the appellants have remained fugitive from law for quite some time but it has been held umpteenth times by the superior courts that mere absconscion of an accused would not be a substitute for real, concrete and worth reliable evidence, which the prosecution must produce in order to bring home guilt to an accused.
22. After thorough and careful examination of the case evidence, we are of the considered view that the prosecution has not proved its case against the appellants beyond any reasonable doubt. It is a cardinal principle of criminal justice that even a slightest doubt will be sufficient to lead acquittal of an accused, which principle is fully applicable in the instant case.
23. We have noted that the impugned judgments are not based on proper appreciation of case evidence and the learned trial court has fallen in legal error to record conviction and sentences of the appellants, therefore, same are not sustainable.
24. For what has been discussed above, both the appeals are accepted and the impugned judgments recorded by the learned trial court are set aside. The appellants are acquitted of the charges leveled against them. They be set free forthwith, if not required or wanted in any other case.
25. As we have accepted the appeals against convictions, therefore, both the criminal revisions, noted above, have become infructuous, same are hereby dismissed as such.
26. Above are reasons for our short orders of even date. 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.