' SYED AFSAR SHAH, J.---On 14.4.2010 at about 14.30 hours one Jawar Ali was gunned down in the vicinity of Esa Khel Kachai and when got information about the occurrence, Anwar Shah, ASI to Police Station, Usterzai, Kohat, rushed to there, where Mardan Ali, the complainant, made him a report to the effect that he was present in his home when heard the report of fire shots and, hence, he came out from his house. He noticed that Hussain Shah duly armed with 7.62 bore rifle was fleeing away and when came to Hujra, he found his son, Jawar Ali, lying murdered. Ghulam Muhammad, his (complainant's) another son told him that he alongwith his deceased brother was present in the Hujra when, in the meanwhile, Hussain Shah duly armed with rifle of 7.62 bore came there and started firing at them. Due to the firing of accused, his brother, Jawar Ali, was hit and died at the spot whereas he himself narrowly escaped. Motive behind the offence as stated in FIR was previous blood feud between the parties. Mardan Ali, the complainant, has charged the accused- appellant, Hussain Shah, for the murder of his son deceased, Jawar Ali.
' After writing report of the complainant in the shape of Murasilla as Ex. CW 1/1, by ASI Anwar Ali, it was read over and explained to him, who after admitting it to be correct signed the same in token of its correctness.
2. On completion of investigation by the local police of Police Station, Usterzai, Kohat, initially Challan under section 512, Cr.P.C. Was submitted against the accused, however, later on, on his arrest, supplementary challan was submitted against him to the Court of learned Additional Sessions Judge-IV, Kohat, where on conclusion of trial, the learned Trial Court, vide its judgment recorded on 14.5.2015, convicted the accused under section 302(b), P.P.C. And sentenced him to death with compensation of Rs, 3,00,000/- payable to the legal heirs of the deceased or in default thereof to undergo six months' RI further. He was also convicted under section 324, P.P.C. And sentenced to one year RI with a fine of Rs, 20,000/- or in default thereof to undergo three months RI further. Benefit of Section 382-B, Cr.P.C. Was also extended to the accused-appellant.
3. The convict-appellant through the instant criminal appeal has questioned the legality and validity of the impugned judgment. Murder reference is also before us for disposal.
4.Arguments heard and record perused.
5. It appears from the FIR, Ex. PA, that in this case the occurrence took place on 14.4.2010 at 1430 hours whereas the report has been lodged on the same day at 1600 hours. Mardan All is the complainant of the present case and he has charged the accused-appellant for the murder of his son, Jawar Ali, with a specific motive behind the offence which was a previous blood feud between the parties.
In the given position of the case, the Court will have to see as to whether Mardan Ali had seen the accused-appellant duly armed with Kalashnikov while fleeing away from the spot and whether Ghulam Muhammad, who had given the ocular account in respect of the occurrence, was present at the spot and, if so, what will be the evidentiary value of his testimony qua guilt of the appellant.
In this case Mardan Ali, the complainant, was examined during the proceedings conducted against the appellant under section 512, Cr.P.C., however, during regular trial since he was dead, therefore, his statement recorded under section 512, Cr.P.C. Was transferred to the file of Trial Court. When examined in the Court during the proceedings under section 512, Cr.P.C., the complainant had reiterated his stance which he stated in his first information report.
Admittedly, site plan is not a substantive piece of evidence, but being the first reflection of the spot as indicated or pointed out by the eye-witnesses furnishes a panoramic view of the occurrence to scrutinize the evidence tendered at the trial by the prosecution witnesses. It is in the evidence that PW Mardan Ali on hearing the report of fire shots, when came out from his house, noticed that appellant duly armed with Kalashnikov was fleeing away and when he came to the Hujra, he found his son lying murdered. If one goes through the site plan, Ex. PB, one could observe that there is nothing about the PW Mardan Ali as to from where he noticed the appellant while running away from the spot. As stated earlier, site plan is not a substantive piece of evidence, but in the present case it matters because the complainant, Mardan Ali, during the days of occurrence was aged about 78. The question arises that how a person aged about 78 years had noticed the appellant and that too, armed with 7.62 bore rifle and if at all he had seen him, from how much distance? The prosecution version on this precise subject stood in vacuum.
' Moreover, in this case, the complainant, Mardan Ali, has not faced the test of cross-examination.
True, that his statement was validly transferred in the laid down manner, to the file of trial Court and again, undoubtedly, it falls within the category of substantive piece of evidence, still judicial wisdom requires that much care and caution to examine by the Court before placing reliance on it, moreso, when a conviction on a capital charge is to be recorded because such like statement is not subjected to the test of cross examination which is unreasonably considered to be a great engine for digging out the truth. Admittedly, no hard and fast rules can be laid down to that effect but in view of the safe administration of justice it is the duty of the Court to be more onerous while determining the guilt or innocence of the accused on the basis of such type of evidence. Simple is that, in cases like the one the proper course to be adopted is that the Court must look for strong, independent and corroboratory evidence, sufficient enough, to enhance the evidentiary value of such statement to an extent that the guilt of the accused is established beyond reasonable doubt.
Again quality of such type of evidence must comparatively be on higher side.
' Tested on the above principle of justice, now we would refer to the testimony of PW Ghulam Muhammad, who had furnished ocular account in respect of the occurrence and, therefore, the Court will have to see as to whether Ghulam Muhammad had witnessed the occurrence?
' It is in the statement of PW Ghulam Muhammad that at the relevant time he and his deceased brother were sitting in the 'Hujra' of Esa Khel Kachay, when, in the meanwhile, the appellant duly armed with rifle 7.62 bore came there and started firing, resultantly, his brother was hit and died at the spot while he escaped unhurt. The site plan was also prepared on the showing of this PW. In this case as stated earlier, the occurrence has taken place at 1430 hours and as against that it is in the cross- examination of PW Ghulam Muhammad that on the day of occurrence he had taken his son to the Hospital at Kohat for surgery; that in order to fetch money, he came back to his village at 12.00 noon, but since his brother was not at home, therefore, he went after him to the 'Hujra' where the occurrence took place.
From the above deposition of PW Ghulam Muhammad, the solitary eye-witness of the occurrence and brother of the deceased, it is more than clear that in order to fetch money for the surgery of his son, he came to his house where he did not find his brother, so, he came after him to the 'Hujra' at 12.00 noon when the occurrence took place and thus, he has contradicted the time of occurrence.
For the sake of arguments, if he came to the Hujra at 12.00 noon and remained with the deceased till 14.30 hours (the time of occurrence), the question arises that when his son had undergone surgery and when he had come to the house/village for fetching money, why he stayed in the Hujra (crime venue) for two and half hours with his brother (deceased). This conduct of PW Ghulam Muhammad is not appealable to the prudent mind.
' Again if one goes through the site plan, Ex. PB, one could observe that at point No, 1 the deceased has been shown whereas at point No,2 the appellant. Similarly, at point No,3 the presence of PW Ghulam Muhammad has been mentioned. It is in the FIR that at the time of occurrence both the PW Ghulam Muhammad and deceased were sitting in the 'Hujra' when the appellant duly armed with rifle of 7.62 bore came there and started firing at them. From the P.M report of the deceased it appears that there were multiple injuries on the vital parts of his body and on the other hand PW Ghulam Muhammad, who was in close proximity with the deceased, has not received even a single scratch on his body. The indiscriminate firing by the appellant from the rifle 7.62 bore (a sophisticated weapon) and non-receipt of even a scratch on his body by PW Ghulam Muhammad in the given position of the case is repellent to the common sense and the only inference that one could draw from such course of events is that he was not present with the deceased at the relevant time.
6. There is no cavil with the proposition 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. 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 seeing of the appellant by the complainant and witnessing of the occurrence by PW Ghulam Muhammad is highly doubtful. In support case law Muhammad Luqman v. The State (PLD 1970 SC 10), Tariq Pervaz v. The State (1995 SCM R 1345), Muhammad Khan and another v. The State (1999 SCM R 1220) and Muhammad Akram v. The State (2009 SCM R 230) can well be referred.
7. No doubt, in the present case accused-appellant has been charged singularly and it is a settled law that substitution of innocence person when a single accused is named in a murder case is rare phenomena but it depends from case to case. In the instant case we have already concluded that the crime is un-witnessed.
8. With respect to the ascendance of the appellant, suffice it to say that when the ocular evidence is disbelieved then abscondance alone does not play any role in the conviction of an accused person because it is a weakest type of corroboratory evidence.
9. For the foregoing reasons, this appeal is accepted, the conviction and sentence recorded by the Trial Court is set aside and, accordingly, the appellant is acquitted of the charge leveled against him. He shall be set at liberty forthwith if not required in any other case.
Murder reference is also answered in the negative. These are the reasons of short order of even date.