ASSADULLAH KHAN CHAMKANI, J.---This appeal is directed against the judgment dated 16.03.2012, passed by learned Additional Sessions Judge-II, Bannu, whereby appellant Sher Zad Khan and Umar Zad Khan, have been convicted and sentenced as follow:-- Under section 302(b), P.P.C. To undergo life imprisonment, each, and to pay Rs.2,00,000/- to LRs of deceased, as compensation under section 544-A, Cr.P.C. Or in default thereof, to undergo each, 6 months' S. I. Further.
Under section 337-F(ii), P.P.C. To undergo two years' imprisonment, each, on two counts and to pay Rs.10000/- as Daman for each injury, making total of Rs. 20000/- and grand total of Rs.40,000/- to injured Mst. Baskamala or in default thereof, to be kept in jail and dealt with in the same manner as if sentenced to simple imprisonment until payment of Daman.
Under section 337-F(ii), P.P.C. To under two years' imprisonment each and to pay Rs.10000/- as daman, each, for the injury caused to Mst. Zulekha or in default thereof, to be kept in Jail and dealt with in the same manner as if sentenced to simple imprisonment until payment of daman in full.
All the sentences shall run concurrently and benefit of section 382-B, Cr.P.C. Has been extended to the convicts.
2. We deem it pertinent to mention here that during pendency of the appeal, convict/appellant Mehar Zad Khan died in Jail and in light of report of Superintendent Jail, proceeding in the appeal to his extent were abated. So we are left with convict/appellant Sher Zad Khan.
3. The prosecution case as set forth in the FIR is that on 24.04.2003 at 0200 hours, Mst. Zulekha Bibi reported to local police in DHQ Bannu that on the night of incident she along with her husband Damsaz Khan and other inmates of the house, was present in the courtyard of her house. In the meantime, accused Sher Zad, Mehar Zad and Gohar Zad, duly armed with Kalashnikovs came there and started conversation with her husband. Since, the sister of her husband was married to accused Sher Zad, therefore, he along with his sons was demanding the share of Mst. Afsar Zubana in the ancestral property, which resulted in altercation inter se the accused and her husband, during which course, accused Sher Zad and his sons/co-accused named above, started firing at them, resultantly, her daughter Mst. Baskamala and husband Damsaz were hit and injured. After the occurrence, the accused flee away from the spot and when she attended her husband, he was breathing his last and died on the spot. In addition to complainant, the incident is stated to have witnessed by Mst. Baskamala.
4. On arrest of the accused/appellant and completion of investigation, complete challan was submitted against him before the trial Court, wherein he was formally charge sheeted to which he pleaded not guilty and claimed trial. To prove the guilt of accused, prosecution examined as many as fourteen witnesses. After close of the prosecution evidence, statement of accused was recorded under section 342, Cr.P.C. Wherein he denied the prosecution allegations and professed his innocence. He however, did not opt to be examined on oath under section 340(2), Cr.P.C. Nor wished to produce evidence in defence. On conclusion of trial, learned trial Court after hearing both the sides convicted and sentenced the accused/appellant as mentioned above, hence, this appeal.
5. Learned counsel for the appellant argued that the alleged incident has taken place in the dark night and no source of light has been given by the complainant in her report, so identification of the accused is highly doubtful; that there is delay in lodging report, which time has been consumed in consultation and deliberation by the complainant; that the ocular account is full of contradiction and not in consonance with the medical evidence and other circumstances of the case; that injured PW Baskamal, who had been examined in the earlier trial, has been abandoned by the prosecution for the reason that she was not supporting the prosecution case in her that statement; that preparation of recovery memo. About the alleged recoveries from the spot on 25.04.2003 and preparation of site plan on 28.04.2003 cast serious doubts in the prosecution case; that the site plan, medical evidence and circumstantial evidence does not corroborate the prosecution story; that injury observed on the person of injured is the result of blunt weapon as mentioned by the Doctor in his report which is in conflict with the prosecution story. He while concluding his arguments contended that prosecution has miserably failed to bring home the guilt of appellant/accused through cogent and confidence inspiring evidence, hence, the impugned judgment of the trial Court is liable to be set aside.
6. Conversely, learned counsel for the complainant argued that appellant is directly charged for the occurrence; that both the parties are relatives and prior to the incident altercation took place between the deceased and accused, so the question of mistaken identity does not arise that the ocular account is straightforward and confidence inspiring, corroborated by medical and circumstantial evidence in the shape of recovery of 29 crime empties from the spot coupled with long abscondence of the accused, hence, the learned trial Court has rightly convicted and sentenced the appellant. He sought dismissal of the appeal.
7. Learned A.A.G. Adopted the arguments of the learned counsel for the complainant.
8. We have considered the respective arguments of the learned counsel for the parties and perused the record carefully with their valuable assistance.
9. This incident has allegedly been taken place inside the house of complainant Mst. Zulekha Bibi at 2300 hours at night, which has been reported by her with considerable delay at 0200 hours. She has not furnished any plausible explanation for the delay, which proves that the accused were not known to her and she consumed this much time in consultation and deliberation to nominate the accused for the occurrence. While taking into consideration the statement of Mst. Baskamala the injured PW, who was examined in earlier trial, but abandoned in this trial, wherein she has categorically admitted that they were fired at from the roof top of the mosque, situated near their house, as shown in the site plan, one would agree with the proposition that really the assailants were not identified by the complainant, being on the roof top of mosque, that's why she lodged report with delay after consultation and deliberation. Mst. Zulekha Bibi, the complainant has been examined as RPW.8. In her examination in chief she reiterated the same story set forth by him in her report, But in her cross-examination she introduced some new development which amount to dishonest improvement. She deposed that after visit of the accused to their house, they were served with meal and tea. She has not stated about serving of meal and tea in her report rather she narrated that when the accused came to her house, they started conversation with her husband which resulted in altercation, during which course the accused opened fire at them. She further deposed that at the time of incident her other family members eleven in number, were present in the house she admits that courtyard of her house is visible from the roof top of mosque near their house. She while improving her statement deposed that accused Sher Zad directed his co-accused to kill, as a result, they opened fire. She further deposed that her other family members were also present in the Court yard of her house. At this juncture we would like to refer to the site plan, where presence of other family members has not been shown, nor the I.O. Has recorded the statements of those eleven members of the family of complainant nor produced in the witness box.
While blowing hot and cold, on one breath she says, that she did not remain admit in the hospital rather she had just accompanied the dead body of her deceased husband to the hospital and on the second day the police came to her house and the site plan was prepared whereas on the other breath she states that she remained admitted in hospital for about fifteen days. If part of statement of complainant is taken into consideration, then the site plan should have been prepared on 26.04.2003 as the occurrence has taken place on 25.04.2003, whereas perusal of the site plan depict that it has been prepared on 28.04.2003, which totally negates the version of the complainant. Again if the complainant remained admitted for fifteen days in the hospital then how she was present in her house at the time of visit of the police on the second day of the occurrence i.e. 26.04.2003. In her further cross-examination, she again while contradicting her above stance deposed that after her discharge from the hospital, the police came to her house after about ten days. She further deposed that first she was examined by the doctor and thereafter her report was recorded after one or two hours. She deposed that she does not know the number of shots fired by the accused; that she and her husband were sitting at a distance of 2/3 paces from the accused but strange that she does not remember that whether she was sitting on Cot/bed or ground. She also does not remember whether her daughter Mst. Baskamala Bibi injured PW was sitting on the ground or Cot/bed, however, she remember the distance inter-se her and her daughter Baskamala to be 3/4 paces, which also seems strange as she does not remember about her position whether she was sitting or standing, but she remember the distance. She further deposed that she does not remember whether her daughter sustained injuries in standing position or sitting.
She while totally negating her earlier version and giving serious blow to her case, further deposed that accused had come to their house at Digger Vella and remained in their house for 5 to 6 hours prior to the occurrence. A look over her report would divulge that she has categorically stated that it was "Khuftam Vela" when the accused visited their house. She admits that accused Gohar Zad was minor i.e. Aged about 12/13 years at the time of occurrence. She further deposed that she does not know the name of driver of the vehicle in which the dead body of her husband was shifted nor does she remember as to who had arranged the vehicle. This part of statement of the complainant is also unbelievable because she posing herself to be the eye-witness, then how she does not remember all these material facts and circumstances of the case. Moreover, as per site plan and her statement despite she being in close proximity with the deceased and her injured daughter, has not received any firearm injury but only blunt injury, which does not appeal to a prudent mind.
The thorough scrutiny of the ocular account furnished by Mst. Zulekha Bibi complainant, manifest that the same is full of material contradictions and improvements creating serious doubts about her presence at the time of incident and it can be safely concluded that the occurrence has not taken place in the mode and manner as alleged by her.
10. The medical evidence also belies the ocular account of the complainant because she has given the distance of 2 to 3 paces inter se the accused and the deceased at the time of incident but no blackening or charring marks has been observed by the medical officer on the wounds of the deceased, which in such a short distance was natural. Similarly, the injury observed on the person of the complainant has been declared by the medical Officer/Lady doctor Mehtab Shaheen RPW.7, the result of blunt weapon.
11. The requirement of the criminal case is that 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 and entitle the accused for acquittal. 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. Reference can be made case titled, "Tariq Pervaz v. The State" (1995 SCM R 1345) and case titled, "Muhammad Akram v. The State" (2009 SCM R 230). Moreover, accused is always considered as the most favourite child of law and every benefit of doubt goes to him regardless H of fact whether he has taken any such plea or not. In this regard "Faryad Ali 's case" (2008 SCM R 1086) can be referred.
12. The other alleged eye-witness Mst. Baskamala, who is daughter of the deceased and complainant, has been abandoned in this trial for the reason that she has developed some mental illness thus incapable to give statement, but nothing in black and white such as medical certificate or the prescriptions of the Medical Officer who treated the said PW has been brought on record to show her such illness and mental disability to give statement. Though her statement was recorded in the earlier trial which has been transposed to the present trial, which, on one hand, in absence of any solid proof regarding her mental condition would not be admissible in evidence, while on the other hand, she has purposely not been brought into the witness box by the prosecution due to fear that she would reiterate the same facts as she has stated in her earlier statement wherein she has categorically deposed that they were fired at from the roof top of the mosque near their house, which totally negates the basic fabric of the prosecution case. So non-production of Mst.
Baskamala, the injured witness of the prosecution, amounts to withholding of best available evidence, 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 she been produced she would not have supported the prosecution case.
13. Though, the 1.0. During investigation, has secured blood from the places of deceased and injured, their bloodstained clothes and 29 crime empties, but as discussed above, the ocular/direct evidence of the prosecution has been disbelieved, so in absence thereof, these pieces of circumstantial evidence would not be sufficient to prove the guilt of the appellant/accused. Similar is the case of medical evidence from which the cause of death of the deceased can be ascertained only and not the guilt of the accused. Again, the recovered crime empties would only show that the deceased was killed through firearms and the killers left behind the empties but these do not carry the printed names of the killers and also because the crime weapon has never been recovered, therefore, L the evidentiary value of the crime empties has diminished to considerable extent and cannot be used as incriminating article or evidence against the accused.
14. So far as abscondence of the accused is concerned, prosecution cannot seek support from factum of a abscondence of accused when eyewitnesses have not established their presence at the spot and their testimonies have been disbelieved being pregnant of doubts and suffering from material contradictions. Mere abscosion is not a conclusive proof of guilt of accused person. It is only a suspicious circumstance against an accused that he was found guilty of the offence.
However, suspicions after all are suspicions. The same cannot take the place of proof. 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. Mere abscondence of accused could not be made the basis for his conviction as accused could run away due to fear or suspicious circumstances. 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. Reliance placed on case titled "Rohtas Khan v. The State" (2010 SCM R 566), "Rahimullah Jan v. Kashif and another" (PLD 2008 Supreme Court 298).
15. For the reasons discussed, the prosecution has miserably failed to bring home the guilt of the appellant-accused and the learned trial Court has totally over sighted these material pieces of evidence creating serious doubts in the prosecution case and thereby reached to a wrong conclusion by convicting and sentencing the appellant-accused. Resultantly, this appeal was allowed and the following short, order of the even date was passed which is reproduced below:- "For the reasons to be recorded, later on, we allow this appeal, set aside the conviction and sentence of appellant Sher Zad Khan recorded by the trial Court/Additional Sessions Judge-IV, Bannu vide impugned Judgment dated 16.03.2012 in case FIR No.32, dated 25.04.2003 registered under sections 302/324/34, P.P.C. At Police Station Miryan Bannu, and hereby acquit him of the charges levelled against him. He be set at liberty forthwith, not required in any other case".