ASSADULLAH KHAN CHAMMKANI, J.---This criminal appeal filed by appellants Muhammad 'Yousaf arid Muhammad Bashir, calls in question the legality and propriety of judgment dated 16.06.2011, rendered by learned Additional Sessions Judge-VII, Mardan, whereby the appellants have been convicted under section 302(b), P.P.C. And sentenced to undergo each imprisonment for life as Ta'azir and to pay compensation of Rs.1,00,000/- each, to the LRs of deceased Ali Aman within the meaning of section 544-A, Cr.P.C. Or in default thereof to undergo further 6 months' S. I. Each, in case FIR No.22, dated 11.02.2008, registered under section 3,02/34, P.P.C. At Police Station Chura Mardan, District Mardan. Benefit of section 382-B, Cr.P.C. Has been extended in their favour.
2. The prosecution case as unfolded in the FIR is that on 11.02.2008, complainant Mst. Saeeda, in company of dead body of her son Ali Aman at 1215 hours, reported to local police, that on the fateful day she alongwith her deceased son Ali Aman, PWs Gul Ghazan and Sher Zaman had gone to the house of Hamd Ullah for attending the marriage ceremony of his son Irfan Ullah. No sooner they came out of the house of Irfan Ullah for their house, accused Muhammad Usman, Bashir and Yousaf duly armed with firearms, came there and opened fire at her son Ali Aman, as a result he was hit and died on the spot. Motive behind the occurrence is stated to be blood feud between one Sarfaraz, the brother of complainant and accused. In addition to complainant, PWs Gul Ghazan and Sher Zaman, are stated to have witnessed the occurrence.
3. Initially, challan was submitted under section 512, Cr.P.C. Against the accused, but later on, on their arrest, supplementary challan was submitted against them before the trial Court, where the accused/appellants were summoned and formally charge sheeted, to which they pleaded not guilty and claimed trial. To bring home guilt of the accused/appellants, prosecution examined as many as fourteen witnesses. After closure of the prosecution evidence, statements of the appellants/accused were recorded under section 342, Cr.p.c. Wherein they denied the prosecution allegations and professed their innocence. They, however, neither wished to be examined on oath nor opted to produce evidence in defence. On conclusion of trial, learned trial Court, after hearing both the sides, convicted and sentenced the accused/appellants, as mentioned above. Hence, this appeal.
4. Learned counsel for the appellants argued that the alleged eyewitnesses have not established their presence on the spot and the ocular account furnished by them is suffering from material contradictions and discrepancies; that medical evidence is not in line with the ocular version and the site plan also negates the version of the alleged eye-witnesses; that PW Sher Zaman, whose presence has been shown as an eye-witness at the time of incident, has been abandoned by the prosecution for no good reason, which amounts to withholding of best available evidence and in the circumstances adverse inference would be drawn against the prosecution; that motive is not proved and there are loop holes in the prosecution story which create serious doubts about the mode and manner of the occurrence, benefit of which is to be extended to the appellants.
5. Conversely, learned counsel for the complainant while controverting the submissions of learned counsel for the appellants argued that the appellants/accused are directly charged for brutal murder of the deceased with specific role and the prosecution has established their guilt through cogent and convincing ocular evidence supported by circumstantial evidence and medical evidence as well as long unexplained noticeable abscondence of the accused further supplement their guilty conscious. He supported the impugned judgment and sought. Dismissal of the appeal.
6. We have heard the exhaustive arguments of the learned counsel for the parties and perused the record with their valuable assistance.
7. As per contents of First Information complainant Mst. Saeeda is the mother while PW Gul Ghazan is the maternal uncle of the deceased Ali Aman, as such, they are closely related to the deceased and they have furnished ocular account of the incident. No doubt, the testimony of closely related witnesses can be relied upon provided the same is confidence inspiring and find corroboration from other circumstances of the case. Complainant Mst. Saeeda recorded her statement as PW.10 while PW Gul Ghazan appeared as PW.11. In this case the incident has taken place on 11.02.2008 at 11.00 a.m. The distance between the crime venue and Police Station has been shown as 2-1/2 Kilometers, which can easily be covered within 30 minutes,. But the report has been lodged at 1215 hours, that after a delay of one hour and 15 minutes. Both, the complainant and PW Gul Ghazan deposed that the dead body of the deceased was lying on the spot for 15/20 minutes, so even if we exclude 15/20 minutes, even then the delay in lodging report is not coverable, because the occurrence has taken place near the house of Irfan Ullah, which is adjacent to the main road and allegedly guests were present there for attending the marriage ceremony, so there was no hurdle for the complainant party to shift the dead body with any delay. As people in our society in such like situation help each other i.e. To arrange Cot, vehicle and to take the dead body or injured to the police station or hospital, as the case may be. Both, complainant Mst. Saeeda and PW Gul Ghazan stated in their statements that when the deceased was lying on the ground and then on Cot, on the spot, none of them took the dead body in their lap, which conduct of the PWs particular Mst.
Saeeda, who is none else but the real mother of the deceased does not appeal to a prudent mind that dead body of a son would lie on the ground in a Pool of blood and a real mother would just stand like a silent spectator and would not take the same in her lap. Complainant in her statement deposed that besides verbal invitation they were also invited for the marriage 'through invitation card by Hamdullah, while but her this version has been falsified by PW Gul Ghazan and investigating Officer. According to PW Gul Ghazan, they were not invited through invitation card.
Moreover, the I.O. Has not taken into possession any invitation Card regarding the marriage of Irfan Ullah. In the FIR, the complainant has only mentioned that accused came there duly armed with firearms without specifying the kind of weapons despite the fact that she has admitted in her cross-examination that she can differentiate between kind of firearms like pistol, shot gun, rifle and Kalashnikov. Had she been present, she would have mentioned that particular kinds of weapons which the accused were allegedly having in their possession. She further deposed that they started towards her house by proceeding towards the east which stance of the complainant has been denied by Muhammad Irfan ASI (PW.12) who is the I.O. By stating that according to his investigation the complainant party was proceeding towards the West. The complainant while introducing new eye-witnesses deposed that the occurrence was also witnessed by Hamdullah, Irfanullah and other male members of their house. PW (11) Gul Ghazan toed the same line by stating that the above named persons have witnessed the incident. But it seems very strange that none of them has been named in the FIR by the complainant at the time of her report, nor examined by the I.O.
During investigation under section 161, Cr.P.C. Nor appeared before the Court to testify about the occurrence or even to depose about presence of complainant and PW Gul Ghazan at the relevant time. It is admitted by Muhammad Irfan ASI (PW.12) that he has not recorded statement of even a single guest of the marriage and similarly, he has neither recorded the statement of said Hamdullah or female members of his house regarding presence of the complainant and PW Gul Ghazan regarding their participation in the marriage ceremony. He further admitted that he has not taken into possession any invitation card of the marriage. From the above circumstances, had the complainant and PW Gul Ghazan present on the spot, they would have produced at least one of the above named witnesses as well as the invitation card of the marriage, so as to prove their participation in the marriage and presence on the spot, but they have failed to do so, and by doing so they have badly failed to establish to prove their presence on the spot. Moreover, the statements of both the PWs are not consistent with each other rather suffering from material contradictions and discrepancies. Similarly, their testimony does not find support from medical evidence and other circumstances of the case.
8. Besides, Sher Zaman, whose name has been mentioned in the FIR as an eye-witness, has been abandoned by the prosecution 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 that had he been produced he would have not supported the prosecution version.
9. Medical Officer Dr. Tahir Shah, who conducted autopsy on the dead body of the deceased has been examined as PW.5. As per autopsy report, the deceased sustained firearm entry wounds 3 in number, each 1/2 cm in size on the right side of his face and one other entry wound of the same size on posterior to his right ear. Three exit wounds all of the same size i.e. 1 cm each, have also been observed by the doctor on the person of the deceased. In the site plan at point No.1 deceased Ali Zaman, at point No.5 accused Muhammad Usman, at point No.6 accused Bashir and at point No.7 accused Yousaf, have been shown. The deceased has received the injuries on his right side and dimensions of entry and exit wounds are same. No crime empty has been recovered from the place of the appellants/convict rather the two crime empties of .30 bore pistol have been shown recovered from the place assigned to absconding co-accused Muhammad Usman. PW.12 Muhammad Irfan ASI in his cross-examination deposed that during spot inspection he recovered two crime empties of .30 bore pistol, from the place closed to point No.5, which is the place of absconding co-accused Usman. From the peculiar facts and circumstances of the case coupled with medical evidence, the occurrence seems to be a job of single accused. However, the prosecution has failed to bring home the guilt of appellants through cogent and confidence inspiring evidence, which was its preliminary duty. It is an often quoted phrase regarding appreciation of evidence substantially in criminal justice that men may lie but the circumstances do not. Thus, every human narration is always susceptible to be checked on the touchstone of circumstances as well as with reference to a normal human conduct. The ocular evidence furnished by both complainant and PW Gul Ghazan, is inconsistent and incompatible with medical evidence as well as other circumstances of the incident. The requirement of a criminal case is that prosecution is duty bound to prove its case beyond any reasonable doubt. As per the dictum of the Hon'ble apex Court, 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. Reliance can be placed on case titled, "Tariq Pervaz v. The State" (1995 SCM R 1345) and case titled, "Muhammad Akram v. The State" (2009 SCM R 230). In the above judgments it has been observed by the apex Court that it is an axiomatic principle of law that in case of doubt, the benefit thereof must occurred in favour of the accused as a matter of right and not of grace, which principles are in consonance with a famous maxim that "it is better that ten guilty persons be acquitted rather than one innocent person be convicted".
10. No doubt, appellants/convicts remained absconders and proceedings under section 512, Cr.P.C.
Were also initiated and completed against them. But prosecution cannot seek support from factum of abscondence of accused when the prosecution has not established their guilt through cogent and confidence inspiring direct evidence. Mere abscosion is not a conclusive proof of guilt of accused person. The value of abscondence, therefore, depends on the facts of each case. The absconsion of the accused may be consistent with the guilt or innocence of the accused, which is to be decided keeping in view over all facts of the case. No doubt, abscondence is a relevant fact, but it can be used as a corroborative piece of evidence, which cannot be read in isolation but has to be read along_ with substantive piece of evidence. In this regard reference can be made to case titled, "Rohtas Khan v. The State" (2010 SCM R 566), "Rahimullah Jan v. Kashif and another"
11. For what has been discussed above, the learned trial Court has not properly appreciated the evidence in its true perspective and reached to a wrong conclusion by convicting and sentencing the appellants/convict. Resultantly, this appeal was allowed and the appellants/convicts were acquitted of the charge levelled against them. These are the detailed reasons of our short order of even date which is reproduced as follow:- "For the reasons to be recorded, later on, we allow this appeal, set aside the conviction and sentence of appellants (1) Muhammad Yousaf and (2) Muhammad Bashir, recorded by trial Court/Additional Sessions Judge-VII, Mardan vide impugned judgment dated 16.06.2011, in case FIR No.22 dated 11.02.2008, registered under section 302/34, P.P.C. At Police Station Chura Mardan and hereby acquit them of the charges levelled against them. They be set at liberty forthwith if not required in any other case".