MUHAMMAD YOUNIS THAHEEM, J.---Impugned herein is the judgment dated 08.08/012, rendered by the learned Additional Sessions Judge-IV, Lakki Marwat Bannu, whereby the appellants were convicted and sentenced to:-- i) Rigorous imprisonment for three years under section 324, P.P.C. Each; ii) Imprisonment for life each, under section 302(b), P. P.C. With compensation of Rs,100,000/- each payable to the 'legal heirs of the deceased or in default thereof to undergo further six months' S.I.
Each; iii) The injured namely Sakhi Marjan and Raees Khan are also entitled to compensation/Daman of Rs .30, 000/- each (Both the convicts) shall pay Rs,15000/- to each of the injured.
Iv) Benefit of section 382-B, Cr.P.C. Was also extended to the appellants.
2. Raees Khan, the injured/ complainant as well as legal heirs of deceased Qismatullah have also filed Criminal Revision Petition No, 44-B of 2012 for enhancement of the sentence against the accused/appellants.
' As both criminal appeal as well as criminal revision are emanating from the same FIR as well as impugned judgment, hence are to be decided by this single judgment.
2. The story of the prosecution as disclosed in the FIR, which has been registered on the basis of murasila Ex:PA, may briefly be narrated as follows:- On 30-04-2011 at about 2345 hours Raees Khan, the complainant made a report to Jalil Khan SI in the emergency room of Civil Hospital Lakki to the effect that on 30.4.2011, he along with his sons Matiullah and Qismatullah and relative Sakhi Marjan were sitting on a "Cot" in the street outside his house; electric bulb was lit; that in the meanwhile at 2230 hours,accused/appellants namely Inayatullah and Moeenullah both armed with Kalashnikovs came there; that due to fear, they all entered the house but the accused/ appellants also followed them, entered the house and started firing at them with intention to kill them, as a result of which, he (complainant), Sakhi Marjan and Qismatullah sustained injuries and fell down; that Qismatullah could not survive and died on the spot; The accused after commission of the offence fled away from the spot of occurrence. Motive behind the offence as stated to be a dispute of attempt of committing Qatl-e-Amd at accused Moeenullah by injured Sakhi Marjan and his brother Taj Ali Khan; that the complainant has charged both the accused for commission of the offence.
3. After writing report of the complainant it was read over and explained to him, who after admitting it to be correct, thumb impressed the same as token of its correctness, where-after Jalil Khan SI (PW-5) prepared the injury sheets of the injured persons and inquest report in respect of the deceased and referred the same for Medical examination and autopsy, whereas the murasila Ex:PA, was sent to the Polio Station concerned, the contents of same were incorporated in shape of FIR No,245, dated 01.05.2011 under sections 302/324/ 337-H/34, P.P.C. Registered against the convicts/appellants Inayatullah and Moeenullah in Police Station concerned.
4. Investigation was started in the case by Ayub Khan SI (PW-11). Accused Inayatullah was arrested by the SHO on 29/5/2011, while accused Moeenullah was arrested on 8.2.2012 by Abdur Rahman SI Investigation (PW-6): On completion investigation, supplementary challans were submitted against the accused/ appellants to the Court of Additional Sessions Judge, Lakki. Both the accused/appellants were summoned, they appeared before the court; provision of section 265-C, Cr.P.C. Complied with; both the accused/appellants were formally charge sheeted to which they pleaded not guilty and claimed trial. In support of their case, the prosecution produced as many as 11 PWs, whose statements were recorded and placed on file. Dr. Ismail Iqbal (PW-4) has examined the injured Sakhi Marjan and Raees Khan and also conducted autopsy of the deceased Qismatullah. Dr. Zafar Nawaz (PW-7) has examined another person namely Rabistan, who has allegedly received injuries due to aerial firing, but in this respect, the report is silent; Matiullah and Sakhi Marjan have recorded their statements as PW-8 and PW-9 respectively being alleged eyewitnesses, while the prosecution has abandoned the star witness, i.e, Raees Khan (complainant/alleged injured) of instant case. PW-11 Ayub Khan has investigated the case. He has made the site plan and prepared the recoveries, allegedly taken into possession from the place of occurrence.
5. On close of the prosecution evidence accused/ appellants were examined under section 342, Cr.P.C, wherein they professed their innocence and stated to have been falsely implicated in the case. They however, wished to produce no evidence in defence nor to examine themselves on oath as required under section 340(2), Cr.P.C. The learned trial Court on conclusion of the trial convicted and sentenced the appellants, vide judgment herein impugned.
5(sic) Learned counsel for the appellants during the course of his arguments contended that the impugned judgment is the result of misreading and non-reading as well as mis-appreciation and non-appreciation of evidence; that there is inordinate and unexplained delay in lodging of the report, which makes the veracity of the said report doubtful; that the complainant, who is the allegedly star witness of the occurrence has been abandoned by the prosecution, which adversely reflects upon the case of the prosecution and lends a crystal clear "impression that the said PW was not ready to depose in favour or support the prosecution case; that Hamid Khan PW, who has allegedly taken the murasila to the PS, has also not been produced by ' the prosecution before the court for recording his evidence which unproved the place of drafting of murasila and similarly, non examination of constable Rashid Khan would further strengthen doubts about the conduct of preliminary investigation; while other ocular account, i.e, PWs Matiullah and Sakhi Marjan have also failed to establish their presence as well as injuries at the hands of accused/appellants, He further added that the testimony of the ocular account is full of contradictions and discrepancies reflecting the fact that they are procured witnesses. He went on to say that the ocular account furnished by PWs Matiullah and Sakhi Marjan is belied by the medical evidence and also not in consonance with the entries made in the site plan. Developing his arguments learned counsel for the appellants urged that the learned trial Court by not adverting to the facts and circumstances of the case, has felled into error and therefore, the impugned judgment is liable to be reversed.
Lastly, he argued that the occurrence is not taken place in the mode and manner as setup by the prosecution.
6. As against that learned AAG assisted by learned counsel for the complainant argued that prosecution has fully established the guilt of the appellants through cogent, coherent and confidence inspiring evidence in the shape of recovery of blood, empties from the spot of occurrence and as well as through medical evidence and thus they have rightly been convicted by the learned trial Court.
7. We have considered the submissions of learned counsel for the parties, AAG for the State and gone through the record of the case.
8. It appears from the FIR (Ex: PW8/1) that in this case the occurrence took place on 30.09.2006 at about 09.00 hours, whereas the report has been lodged on the same day at about 10.00 hours.
Yasin Khan is the complainant of the present case and he has charged the convicts/appellants for commission of the offence.
10(sic) Perusal of FIR reveals that the occurrence took place on 2230 hours whereas the report has been lodged on the same night at 2345 hours with a delay of about one hour and 15 minutes whereas as per record the deceased Qismatullah died at the spot but despite that he has been taken to the hospital by crossing the police station which comes in the way of place of occurrence and the hospital, meaning thereby that to cover the delay intentionally the report has been made in the hospital. Further this delay has not been explained in the FIR nor during recording of their statements in the court.
11. Admittedly, it is a night occurrence took place when the complainant along with his sons Qismatullah, Matiullah and his relative Sakhi Marjan were sitting on a "COT" in the street of their house but it has not been clarified that at so odd hours, for what purpose, they were present there and this fact had neither stated in the FIR nor in their statements which also led to the inference that the occurrence has not taken place in the mode and manner as alleged by the complainant and due to this reason, the complainant has not, been produced before the court with the intention that he may depose the truth.
12. Perusal of the record reveals that the occurrence has been seen by the injured/complainant Raees Khan, injured Sakhi Marjan and Matiullah. The fire shots of the same occurrence have also hit another independent person namely Rabistan due to which he had also sustained injuries, it was the duty of the prosecution to prove the case against the accused/ respondents by recording the statements of independent witness Rabistan and father of deceased complainant Raees Khan but both the star witnesses have been abandoned, which led to the inference that if they were produced they may not support the prosecution version. The prosecution produced only injured Sakhi Marjan and Matiullah.
13. In the First information report, the complainant Raees Khan alleged that the motive behind the occurrence was previous blood feud but injured PW-9 Sakhi Marjan in his statement contradicted the FIR by stating that the complainant has no blood feud enmity with the accused, rather the motive was with him. Similarly PW Matiullah Khan has also contradicted the first information report on the point of motive by stating that he had no blood feud enmity with the accused even of beating. If it was the case the question arises that why the injured Sakhi Marjan has been left alive despite having blood feud with him and without any motive fired at the deceased Qismatullah. This fact creates a serious ID doubt in the prosecution case.
14. This PW-9 Sakhi Marjan further improved his statement by saying that he is not in the knowledge that the injured Rabistan was also injured due to fire shots during the occurrence. He has also made improvement in his statement recorded under section 161, Cr.P.C. That after receiving fire shots they were lying on the ground for four/five minutes and-thereafter "COT" was arranged, but this fact is omitted in his statement under section 161, Cr.P.C.
15. The medical evidence may establish the cause of death, but it does not F identify the assailants.
For recording conviction in a case of capital charge, there must be an evidence of unimpeachable character, having no shadow of doubt. 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 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. Like wise, it is also well embedded principle or criminal justice that there is no need of so many doubts in the prosecution G case, rather any reasonable doubt arising out of the prosecution evidence, pricking the judicial mind is sufficient for acquittal of the accused. It is also well embedded principle of dispensation of criminal justice that acquittal by error is better than conviction by error. The analogy is that no innocent may be punished.
16. It is settled law that the prosecution is duty bound to prove its case beyond any reasonable doubt and if any single and slightest doubt is created, benefit of the same must go to the .Accused and it would be sufficient to discredit the prosecution story. It is 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, as in the instant case where the testimony of the eye-witnesses are not only pregnant with discrepancies, but also inconsistent with the medical evidence and other circumstances of the case. Wisdom is H derived from the case titled "Mohammad Akram v. The State ( 2009 SCM R 230), where it is held by the august Supreme Court that:-- "For giving the benefit of doubt it is not necessary that there should be many circumstances creating doubts-Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefit, not as a matter of grace and concession, but as a matter of right."
' Similar view was re-iterated by the apex Court in case titled 'Tariq Parvez v. The State" (1995 SCMR 1345) in the following words:-- ' "The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right."
Again the golden rule of "the benefit of doubt" has been enunciated in case titled Mohammad Luqman v. The State (PLD 1970 SC 10) in the following words: ' S. 302---Murder conviction---Should rest surely and firmly on evidence adduced and clear inference that may be drawn there from---Guilt cannot be based merely on high probabilities that may be inferred from evidence in case---Evidence Act (I of 1872), S. 3. "it may be said that a finding of guilt against an accused person cannot be based merely on the high probabilities that may be inferred from evidence in a given case. The finding as regards his guilt should be rested surely and firmly on the evidence produced in the case and the plain inferences of guilt that may irresistibly be drawn from that evidence. Mere conjectures and probabilities cannot take the place of proof. If a case were to be decided merely on high probabilities regarding the existence or non-existence of a fact to prove the guilt of a person, the golden rule of "benefit of doubt" to an accused person, which has been a dominant feature of the administration of criminal justice in this country with the consistent approval of the superior Courts, will be reduced to a naught."
17. So far as the absconder of the convicts/appellants is concerned, in this part of the country people do abscond not because they are guilty, but because of fear and torture of the police. Even otherwise abscission is not substantive piece of evidence, it is a corroborative piece of evidence and in cases where direct evidence fails, corroborative piece of evidence is of no avail, as in the instant case, where the evidence of the solitary eye-witness has been disbelieved. Needless to say that absconder can neither cure the inherent defect of the ocular account nor by itself is sufficient to sustain conviction. In this respect wisdom is derived from the case law "Islam Badshah and 2 others v. The State" (PLD 1993 Peshawar 7).
18. For what has been discussed above, the prosecution case against the appellants has not been proved beyond any reasonable doubt and therefore, we accept the appeal, set-aside the conviction and sentence of the appellants and acquit them of the charges leveled against them.
They shall be released forthwith, from the jail, if not required in any other case. As a result of acceptance of instant appeal, connected Cr.Revision No,44-B of 2012 titled, "Raees Khan v. The State" has become infructuous, hence stands dismissed.
19. By our short order of even date, we have accepted the appeal and acquitted the appellants, while connected Cr. K Revision No,44-B of 2012 titled, Raees Khan v. The State has become infrastructure, hence stands dismissed.
' Herein above are reasons for the same.