ASSADULLAH KHAN CHAMKANI, J.---Our this common judgment shall dispose of the instant criminal appeal filed by appellant Naeem Khan against his conviction and sentence as well as connected Cr.R. No, 15-B/2012, titled, "Mumnawaz Khan v. Naeem Khan" preferred by complainant/petitioner for enhancement of sentence of respondent/convict, as both are the outcome of same judgment of learned .Trial Court/Additional Sessions Judge-II, Bannu dated 22.02.2012, whereby appellant has been convicted under section 302(b), P.P.C. And sentenced to undergo imprisonment for life and to pay Rs,2,00,000/- as compensation to LRs of deceased in terms of section 544-A, Cr.P.C. Or in default thereof to undergo 6 months' S.I. Further, in case FIR No,264 dated 21.08.2008 registered under section 302, P.P.C. At Police Station Saddar, District Bannu.
Benefit of section 382-B, Cr.P.C. Has been extended in his favour.
2. It so happened on 21.08.2008 at 1900 hours, when complainant Mamnawaz Khan and his son Imran were on their way to New Adda Bannu in a motorcar No,2430/DIK, and the moment they reached opposite to Degree College No,2 Bannu, appellant Naeem Khan, intercepted them, on which Imran deboarded from the car, from whom the accused was demanding a spare wheel, which resulted in altercation between the two, and in the meantime, accused Naeem pulled out his .30 bore pistol from fold of his shalwar/trouser and opened fire at Imran, with intention to do him away, resultantly, he was hit and severely injured. After commission of the offence, the accused decamped from the crime scene. Complainant when attended his son Imran, found him dead.
Motive behind the offence is stated to be altercation on spare wheel. The dead body of the deceased was shifted to civil hospital Bannu, where complainant (PW.9) reported to Bashir Nawaz Khan SI (PW.4), who reduced his report into writing in the shape of murasila Exh.PW.4/1 on the basis of which FIR mentioned above was registered. Bashir Nawaz SI (PW.4), prepared injury sheet Exh.PW.4/2 and inquest report Exh.PW.4/3 of the deceased and transmitted his dead body for autopsy.
3. Dr. Bashir Hussain (PW.8) conducted postmortem examination on the dead body of the deceased on 21.08.2008 at 08.30 p.m. And found the following injuries on his person:-
1. One FA entry wound size 1/4 x 1/4 inches on posterior aspect of right forearm.
2. One FA exit wound 1/2 x 1/2 inch on medial aspect of right forearm. Level 1/2 inch proximal to entry No. 1.
3. One FA entry wound size 1/4 x 1/4 inches on the outer wall of right side chest below axilla.
4. One FA exit wound 1" x 1/2" on right hypochondrium.
5. One FA entry wound 1/4" x 1/4 " on the front of left side chest below nipple.
6. One FA entry wound 1/4 x 1/4 " on the posterior aspect of left forearm.
7. One FA exit wound 1/2 x 1/2 " on posterior aspect of left elbow joint.
8. One FA entry wound 1/4 x 1/4" on posterior lateral aspect of left upper thigh.
9. One FA exit wound 1/2 x 1/2" on medial aspect of left upper thigh.
10. One FA entry wound 1/4 x 1/4" on medial aspect of right thigh.
Probable time between injury and death has been given by the doctor as Zero to ten minutes while between death and Postmortem as half to three hours.
According to opinion of the medical officer, the deceased died due to firearm injuries to both lungs and the liver.
4. Initially challan under section 512, Cr.P.C. Was submitted against the accused and proceedings under section 512, Cr.P.C. Were completed against him. However, on his arrest and completion of investigation, supplementary challan was submitted against him before the learned trial Court, where he was formally charge sheeted, to which he pleaded not guilty and claimed trial, therefore, the prosecution was invited to lead its evidence. To prove guilt of the accused, prosecution examined twelve witnesses. After closure of the prosecution evidence, statement of the accused/appellant under section 342, Cr.P.C. Was recorded, wherein he denied the prosecution allegations and professed his innocence. He, however, neither wished to be examined on oath as his own witness under section 340(2), Cr.P.C. Nor opted to produce evidence in defence. On conclusion of trial, learned trial Court, after hearing both the sides, convicted and sentenced him, as mentioned above.
5. Learned 'counsel for the appellant/convict argued the occurrence has been reported with considerable delay for which no explanation, muchless plausible one, has been furnished by the complainant; that ocular account furnished by solitary witness complainant, who is closely related to deceased being his real father, suffering from dishonest improvements and material contradictions is not worthy of credence being in contrast with medical evidence as well as other circumstances of the case, clearly suggesting that he is a procured and tutored witness; that the learned trial Court has wrongly relied upon the testimony of complainant who has badly failed to establish his presence on the spot at the time of alleged incident, therefore, conviction and sentence of the appellant, the learned trial Court has based on mere assumptions and presumptions, which exercise is contrary to the settled principles of evaluation of evidence; that the ocular account does not find any corroboration from the site plan nor from other circumstances of the case coupled with medical evidence, hence, the impugned judgment is liable to be set at naught and appellant be acquitted of the charge.
6. Conversely, learned counsel for the complainant contended that appellant/convict is directly and singularly charged for committing the brutal murder of the deceased in a broad daylight, in front of his father i.e, complainant, who his furnished the true and straightforward account of the incident corroborated by recovery of crime empties from the spot, bloodstained earth from the place of the deceased and his bloodstained last worn clothes coupled with positive FSL reports qua empties and bloodstained articles. He went on to say that prosecution has proved the guilt of the appellant through cogent and confidence inspiring ocular as well as circumstantial evidence coupled with long and noticeable abscondence of the appellant which prove his guilty conscious and the defence has miserably failed to create any dent in the prosecution evidence, therefore, the learned trial Court was justified by declaring him guilty of the offence. In support of revision petition he contended that when the prosecution has proved the guilt of the appellant/convict up to the hilt; the learned trial Court ought to have awarded him the normal penalty of death as there is no mitigating circumstance which could be made a ground for taking lenient view. He sought dismissal of the appeal and prayed for enhancement of the sentence.
7. Learned Additional Advocate General adopted the arguments of learned counsel for the complainant.
8. We have considered, the respective submissions of learned 'counsel for the parties and perused the record with their valuable assistance.
9. No doubt, this is a case of single accused, charged for the murder of deceased Imran. True that the august Supreme Court has held in so many judgments that substitution of single accused,, particularly, in a murder charge, is a rare phenomenon, but still, to put the rope around the neck of an accused charged singularly, there must be ocular account of unimpeachable character, trustworthy and confidence inspiring, corroborated by other material circumstantial evidence. The ocular account of this unfortunate tragedy has been furnished by solitary witness Mamnawaz, who is the real father of deceased Imran. He appeared as PW.9. In his examination-in-chief, he reiterated the same story as set forth by him in his initial report, however, during his cross- examination he introduced some new events and circumstances, which he has never mentioned in his report. He has mentioned categorically in his report that after firing, when he attended his son Imran, he had succumbed to the injuries on the spot. While totally negating his above stance, in his cross-examination he deposed that when he attended his deceased son, he was alive and for 10/15 minutes and then expired. As manifest from the FIR, the occurrence took place on 21.08.2008 at 1900 hours, which has been reported at 19.50 hours i.e, after a delay of 50 minutes. The crime venue has been shown as opposite to Degree College No,2 Bannu i.e, which falls in Bannu City, at a little distance from Police Station Saddar Bannu, and this fact has been admitted by the 1.0. In his statement as well as by the complainant. The complainant has not given any explanation in his initial report about the delay, however, to bring in line his case with other circumstances of the case, in his cross-examination by making dishonest improvements, he deposed that after expiry of 50 minutes on the spot, he took his son to the hospital; that 50 minutes were consumed in arranging vehicle; that vehicles available, but they were not ready to shift his son to the hospital. He admitted in his cross-examination that he has not stated in his report about his 50 minutes stay on the spot. He further deposed that despite the fact that Police Station Saddar Bannu falls in the way, he did not visit it rather straightaway proceeded to DHQ hospital; that after the incident he was in shock and that people present on the spot, massage his hands and legs. Further deposed that he had not touched the dead body of his son, rather he was taken by two other persons to DHQ hospital and that definitely their clothes would have stained with the blood of the deceased; that he is unable to tell the names of that two persons. This hot and cold of the complainant in same breath cast serious doubts about his presence on the spot, because his conduct is quite unnatural and unbelievable. During the entire episode he has shown himself inside the car without any effort to separate the deceased and accused during altercation or to attempt to rescue him from the alleged assault of the accused. In the natural course of events, no father would stay inside a car like a silent spectator to see murder of his son, in front of his eyes, without doing any effort to rescue him from the clutches of the assailant. There is yet another aspect of the case, which proves the non-availability of the complainant on the spot, at the time of incident with his son.
Complainant in his cross-examination deposed that at the time of firing his deceased son was at a distance of 2/3 paces from the accused. At this juncture we would like to refer to autopsy report of the deceased and statement of Medical Officer, who conducted postmortem on the dead body of the deceased. We did not see any charring or blackening marks on any wound on the person of the deceased. Similarly, the last worn clothes of the deceased have been taken into possession by the I.O. Where only cut marks have been observed without any burning or blackening marks. In case of fire from a close proximity of a distance of 2/3 paces the blackening and burning on the wounds of the deceased cannot be denied, because if the accused was at a distance of 2/3 paces, he while opening fire at the deceased would definitely have moved forward his hand, because we have observed that in routine, at the time of firing, a person holding pistol in his hand, move forward his hand till last and then press the trigger, so in this way the distance between the deceased and accused would become more short as given by the complainant i.e, 2/3 paces, so in such circumstances blackening and charring marks should have been available on the wounds of the deceased because blackening on the body of victim/deceased is possible even in case of a distance of 4 to 6 feet as held by the Hon'ble Supreme Court in case titled, "Muhammad Ishaque v.
The State" (2007 SCM R 108), that burning on wounds was to occur when muzzle was at a distance of 5/6 feet. Moreover, the complainant in his cross-examination deposed that his deceased son was fired from front side whereas according to statement of doctor Bashir Hussain Shah (PW.8), the injuries caused to the deceased were from different angles. Thus, medical evidence does not corroborate the ocular account of complainant rather it totally negates the version of the complainant, which create serious doubts about the incident and in the circumstances, we are of the firm view that the occurrence has not taken place in the mode and manner as alleged by the complainant, rather the same has been taken place in some other manner, not witnessed by the complainant that's why if we see the inquest report of the deceased, the complainant has not signed the same as identifier of the dead body. Had he been present with the deceased, he being father of the deceased would have definitely signed the same as identifier. The peculiar facts and circumstances of the .Case coupled with evidence available on record suggests that deceased was done to death by some assailant, his dead body remained unattended on the spot, where from he was shifted to the hospital by some one and the complainant was, later on, procured, and cited as eyewitness of the incident.
10. No doubt, recovery of bloodstained earth from the spot from the place of the deceased, his last worn bloodstained clothes, recovery of crime empties and the autopsy report of the deceased, established the murder of the deceased with fire arm on the spot, but by whom, is shrouded mystery as we cannot believe and rely upon the testimony of the complainant which is in gross conflict with the medical evidence as well as other circumstances of the case, therefore, these pieces of evidence being corroborative in nature, by itself would not be sufficient for conviction of accused, in absence of substantive piece of evidence i.e, the ocular evidence which has been disbelieved by us. Reliance can be placed on Riaz Ahmed's case (2010 SCM R 846). As per the dictum of the apex Court, corroborative evidence is meant to test the veracity of ocular evidence.
Both corroborative and ocular testimony is to be read together and not in isolation. Wisdom in this regard may be derived from ljaz 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. Similarly, in case titled, "Riaz Masih v. The State" 1995 SCM R 1730, the honourable apex Court held that recovery of crime weapon by itself is not sufficient for conviction on murder charge. In case of Siraj v. Crown (PLD 1956 Federal Court 123), it has been held the recovery of handle of blood-stained hatchet at the instance of the accused, when other evidence was disbelieved, then it was not enough for conviction. The same view has been expressed by the apex Court in Saifullah's case (1985 SCM R 410). 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 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 reasonable doubt arising out of the prosecution evidence, pricking the judicious 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 he theory of benefit of doubt, which, invariably, is 'extended to the accused for safe administration of criminal justice.
11. So far as the only circumstance against the appellant/accused i.e, his abscondence is concerned. He has denied the same in his statement under section 342, Cr.P.C. It needs no reiteration that 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 I the instant case, the prosecution evidence is highly discrepant and full of infirmities and as such has created a genuine doubt in our mind regarding the participation of the appellant in commission of the crime. The learned trial Court while not evaluating the evidence in its true perspective, reached to an erroneous conclusion by holding the appellant guilty of the offence, therefore, the impugned judgment is not sustainable.
Resultantly, this appeal was allowed. These are the reasons of our short order of even date, which is reproduced below:- "For the reasons to be recorded, later on, we allow this appeal, set-aside the conviction and sentence of appellant/convict Naeem Khan, recorded by the trial Court/Additional Sessions Judge-II, Bannu vide impugned judgment dated 22.02.2012 and hereby acquit him of the charge in case FIR No,264 dated 21.08.2008, registered under section 302, P.P.C. At Police Station Saddar, District Bannu. He be set at liberty forthwith, if not required in any other case. On acquittal of appellant/convict, connected Cr. R. No, 15-B/2012, titled, "Mumnawaz Khan v. Naeem Khan" has become infructuous, which stands dismissed as such". 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.