' AALIA NEELUM, J. --- Sikandar Khan son of Muhammad Khan, Caste Pathan Raami Khel, resident of Wandha Yar Gul Khel, Dakhli Musa Khel, Tehsil & District, Mianwali and Muhammad Khan son of Hassan Khan, Caste Pathan Baigu Khel, resident of Wandha Begu Khelan Wala, Dakhli Musa Khel, Tehsil & District, Mianwali, appellants alongwith Habibullah Khan (since proclaimed offender), Hayatullah Khan (since acquitted) and Matiullah Khan (since acquitted) were involved in a private complaint, registered under Sections 302, 148, 149 P.P.C., at Police Station, Musakhel, District Mianwali as well as State case F.I.R. No, 143-2007, dated 04.10.2007, offence under Sections 302, 148, 149, P.P.C., registered at Police Station, Musakhel, District Mianwali. The co-accused, Matiullah (since acquitted) and Hayatullah (since acquitted) were tried separately by the learned Sessions Judge, Mianwali .Vide its judgment dated.
14.022009, as the appellants-Sikandar Khan and Muhammad Khan were declared proclaimed offenders and after their (the appellants) arrest, the appellants were tried by the learned Additional Sessions Judge,. Mianwali and the learned Trial Court seized with the matter in terms of judgment dated 23.02.2012 convicted the appellants under Sections 302(b), 149, P.P.C., and each of them was sentenced to Imprisonment for life as Tazir along with liability to pay compensation amounting to Rs, 1,00,000/- each to the legal heirs of the deceased, which shall be recovered from them as arrears of land revenue and in case of default, each of them shall undergo six months simple imprisonment. The appellants were further convicted under Section 148, P.P.C., and each of them was sentenced to one year's R.I. All the sentences shall run concurrently. The benefit of Section 382- B of Cr.P.C., was also extended in favour of the appellants.
2. Being aggrieved by the judgment of the learned Trial Court, the appellants, Sikandar Khan and Muhammad Khan have assailed their conviction and sentence by way of filing Crl. Appeal No, 145-J of 2012 whereas the complainant being dis-satisfied with the impugned judgment dated 23.02.2,012, filed a Criminal Revision No, 397 of 2012 for enhancement of sentence of the appellants as well as compensation amount, awarded by the learned Trial Court. Both the matters are arising out of one and the same judgment, therefore, the same are being decided through this consolidated judgment.
3. The prosecution story as contained in the private complaint (Ex.DB) filed by Ziaullah Khan (PW7)/complainant is that on 04.10.2007, the complainant (PW7) was present in his house situated at Musakhel when Qadir Khan son of Jehangir Khan, Caste Pathan -Bahl, resident of Musakhel informed him (PW-7) through mobile phone, in presence of complainant's father, All Akbar Khan (since dead), mother namely Asmat Bibi and brothers, Aslam Khan (PW-8) & Hafiz Muhammad Rizwan, that Sikandar Khan (the appellant) along with others were raising construction on their common plot of land. Thereafter the complainant (PW-7) alongwith His father (since dead), mother and brother, Muhammad Aslam (PW-8) reached at the spot at about 8:30 a.m.; where Habibullah (since proclaimed offender), accused aged about 21/22 years, Hayatullah (since acquitted) having age of 31/32 years, both armed with 30-bore pistols, accused-Matiullah (since acquitted) aged about 25/26 years armed with danda, whereas the accused, Sikandar aged about 50/55 years and accused-Muhammad Khan having age of 55/56 years both armed with Vohalas were present on the said plot and were busy in raising construction over the same. When father of the complainant, Ali Akbar Khan (since dead) forbade the accused persons from raising construction, the accusedHabibullah (since proclaimed offender) made fire shot which hit on the chest of the deceased, Ali Akbar Khan, who fell down and thereafter, the accused-Sikandar Khan and Muhammad Khan caused Vohalas blows, which hit on the right cheek and front of chest of Ali Akbar Khan (since dead), the accused-Matiullah (since acquitted) inflicted danda blow, which hit on the right flank of Ali Akbar Khan (since dead). The accused-Hayatullah (since acquitted) continued to make aerial firing and also made lalkar that if any one stepped forward, he would be done to death. Thereafter the accused persons were decamped from the place of occurrence. The deceased, Ali Akbar Khan was succumbed to the injuries at the spot. The alleged occurrence was witnessed by Muhamrnad Aslam (PW-8), Hafiz Rizwan (given up PW) and mother, Mst. Asmat Bibi (given up PW) of the complainant (PW-7). The complainant (PW-7) after leaving the dead-body of the deceased, Ali Akbar Khan under the escort of Hafiz Rizwan (given up PW) and Muhammad Aslam (PW-8), rushed towards the police station for reporting the incident and made statement before Muhammad Saleem, S.I./S.H.O (PW-6).
4. The motive behind the occurrence is that 10/12 years ago, the deceased, Ali Akbar Khan had murdered one Faizullah Khan whereas the accused-Hayatullah (since acquitted) received injuries in the said occurrence. The said occurrence was later on compromised but the accused- Hayatullah (since acquitted) had nourished the grudge and murdered the deceased, Ali Akbar Khan on the pretext of dispute about the construction.
5. Earlier on the statement of the complainant (PW-7), the F.I.R., (Ex.PJ) was chalked out by Muhammad Saleem, S.I./S.H.0 (PW-6)/Investigating Officer whereas the complainant (PW-7) signed the same as a token of its correctness. Thereafter the Investigating Officer (PW-7) inspected the place of occurrence and prepared the injury statement (Ex.PK), inquest report (Ex.PL) and thereafter handed over the dead-body of the deceased, All Akbar Khan to Nawab Khan, 327/C (PW-4) for escorting the same to the mortuary for post-mortem. Thereafter he (PW-6) prepared, rough site plan of the place of occurrence as (Ex.PM), secured the blood-stained earth from the place of occurrence and took into possession vide recovery memo. (Ex.PN). After postmortem, Nawab Khan 327/C (PW-4) handed over last worn clothes of the deceased i,e, Qameez P-1 and Shalwar P-2 along with postmortem report and necessary police papers to the Investigating Officer (PW-6) which were taken into possession by him (PW-6) vide recovery memo. (Ex.PF). On 06.10.2007, Muhammad Shafiq Khan, Draftsman (PW-3) visited the place of occurrence, prepared scaled site plan (Ex.PE/1-3) and handed over the same to the investigating Officer (PW-6) on 08.10.2007. Thereafter, the investigation was entrusted to Muhammad Arshad, S.I. (PW-11), who obtained warrants of arrest of the accused persons as (Ex.PA/1-5) on 12.11.2007 and also obtained the proclamation against the accused-Habibullah (since proclaimed offender) as (Ex.PC/1-5) on 15.12.2007. Thereafter investigation of this case came up before Mehar Khan, Inspector/S.H.O (PW- 14), who arrested the accused Sikandar Khan and Muhamthad Khan from Chhidru Chowk and during search, an unlicensed 30-bore pistol along with 10-live bullets were recovered from the accused-Sikandar Khan, whereupon, a separate case under Section 13/20/65 of Arms Ordinance was registered against the accused Sikandar Khan. During investigation, both the accused made separate disclosures and led to the recoveries of Waholas P 4 and P-5 from their houses, which was taken into possession by PW-14 vide recovery memos. (Ex.PR) and (Ex.PS) and prepared rough sketches of places of recoveries as (Ex.PT) and (Ex.PU). Having found the accused persons involved in the commission of the offence, prepared incomplete challan and sent the same to the court of Sessions en-routed through learned Illaga Magistrate as provided under Section 190 (2) of Cr.P.C.
Later on, the Complainants (PW-7) being dissatisfied with the investigation, filed a private complaint (Ex. DB) against all the accused persons during pendency of the State case before the learned Judicial/Illaqa Magistrate, Police Station, Musakhel, District Mianwali. The learned Illaqa Magistrate sent the' same to the worthy Sessions Judge, Mianwali for its entrustment to the court of competent jurisdiction. The learned Trial Court after hearing preliminary arguments, summoned all the accused persons to face the trial. On 16.07.2009, the , learned Additional Sessions Judge, Mianwali formally charge sheeted the appellants to which they pleaded not guilty and claimed trial.
6. The prosecution in order to substantiate its case produced as many as fifteen - (15) prosecution witnesses during the course of trial in private complaint. The ocular account in this case consists of the statements of Ziaullah Khan (PW-7) Muhammad Aslam (PW-8).
Dr. Maqbool Mubarak appeared as (PW-10) and deposed that on 04.10.2007, he conducted the postmortem examination on the body of deceased, Ali Akbar Khan and found the following injury on his person.
1 A firearm entry wound 1 x 1 c.m. On front middle of chest at the tip of phi sternum and 13 c.m. From both nipples.
2 A firearm exit wound 1 x 1 c.m. On the back of left side of lumber region. 1 c.m. From midline - and 11 c.m. Above waist line.
3. A crushed deep wound 15 x 3 c.m. Extending from below right ear to left side of mandible with fracture of underline bone.
4. A lacerated wound 5 x 1 c.m. On front of right upper chest skin deep.
5.A contused mark 10 x 1 c.m. On part of lateral surface of right thigh.
' After conducting the post-mortem examination, the doctor rendered the following opinion:--- Opinion.
"Death was due to hemorrhage and neurogenic shock as result of injuries No, 1, 2 & 3 which had badly damaged liver, abdomen aerate, brain and the spinal cord. All the injuries were grievous and dangerous to life. Sufficient to cause death in ordinary course of nature. Individually and collectively. Injuries No, 4 & 5 were simple. Injuries No, 1 & 2 were caused by firearm. All other injuries were caused with blunt edge weapons."
"The probable time that elapsed between the injuries and death was immediate and that between death and postmortem was given to eight hours."
"Ex.PQ is post-mortem report and inquest report is Ex.PL.".
8. On 02.03.2010, the learned Assistant District Public Prosecutor gave up PW-Latifullah, A.S.I., on the request of the complainant. On 19.10.2011, the PWsGhulam Hussain, Inspector, Mst. Asmat Khatoon, Hafiz Rizwanullah, Aslam Khan and Najeebullah, S.l., were given up by the Deputy District Public Prosecutor being unnecessary. On 26.10.2011, the learned Deputy District Public Prosecutor closed the prosecution evidence after tendering the report of Chemical Examiner (Ex.PV) as well as report of Serologist (Ex.PW).
9. After closure of prosecution evidence, the appellants were examined under Section 342 of Cr.P.C, wherein they opted not to appear as their own witness in terms of Section 340(2), Cr.P.C. In disproof of allegation's leveled against them in the prosecution evidence and also refused to produce defense evidence. While replying to the question that why this case is against him and why the PWs deposed against him, the appellant-Sikandar Khan made following deposition:--- "All the PWs are closely related with each other and they deposed falsely against.Me. They are interested witnesses and inimical towards me."
' While replying to the particular question, the appellant-Muhammad Khan made following deposition:--- "I have been involved in this case falsely due to very close friendship with my co-accused Sikandar Khan. All the PWs are inter-se related and deposed falsely against me."
10. Learned Trial Court after evaluating the evidence available on record found version of the prosecution proved beyond any shadow of reasonable doubt against the appellants, resulting into their conviction in the afore-stated terms.
11. I have heard the arguments advanced by the learned counsel for the parties and have minutely perused the record available on the file.
12. A perusal of F.I.R. (Ex.PJ) shows that the occurrence took place at 08:30 a.m., on 04.10.2007 and the matter was reported to the police at 09:00 a.m. And at the same time, F.I.R., was chalked out on the same day. A perusal of postmortem examination report (Ex.PQ) of the deceased-Ali Akbar Khan shows that the time of receiving dead-body has been written 01:30 p.m. On 04.10.2007. Thus lacing into consideration the above mentioned fact, this Court comes to the conclusion that the F.I.R., was not registered at the time mentioned therein. It has been noticed that in the inquest report, the time of receiving information of date and time of the occurrence was mentioned as 04.10.2007 at 09:00 a.m., and inquest report was not signed by any of eye-witnesses, although the Investigating Officer, Muhammad Saleem, S.I. (PW-6) has categorically asserted that he had recorded statements of the eye-witnesses at the spot. If the Investigating Officer had actually recorded their statements, there is no reason that why their names as witnesses were found missing from the inquest report. Even names of Alam Khan and Mehmood-ul-Hassan, who identified the dead-body of the deceased, Ali Akbar Khan at the time of inquest are not mentioned in the contents of the inquest report (Ex.PQ).
This indicated that the complainant (PW-7) and other eye-witnesses were not present at the time when inquest report in this case was prepared. This out-rightly suggests that the prosecution story was still in an embryo state and not given the shape and the F.I.R., was recorded later on after dew deliberations and consultations and was then, ante-timed to give it the column of a promptly lodged F.I.R. On account of the infirmities as noticed above, the F.I.R., has lost its value anU authenticity and it appears to me that the same has been ante-timed and had not been recorded till the inquest proceedings were over at the spot.
13. In the instant case, as mentioned above, the F.I.R. (Ex.PJ) was not recorded at the time when inquest report was prepared. In thin regard, this Court has also noticed that the copy of the F.I.R., .Alongwith dead-body of the deceased, Ali Akbar Khan was not sent to District Headquarter Hospital for autopsy. The inquest report (Ex.PQ) is also silent on this aspect that from where dead body was referred to the District Headquarter Hospital for autopsy through whom and whether copy of the F.I.R., was also sent alongwith dead-body or not. The absence of these details in the inquest report may be indicative that the F.I.R., was chalked out later on after due deliberation and consultation. Dr. Maqbool Mubarak (PW-10) who conducted postmortem examination on the dead-body of the deceased, Ali Akbar Khan on 04.10.2007 deposed during examinationin-chief that, "Postmortem report is signed by me which is Ex.PQ. Inquest report was presented by the police which was signed by me which is Ex.PL". Dr. Maqbool Mubarak (PW-10) also deposed during examination-in-chief that, "the probable time that elapsed between the injuries and death was immediate and that between death and postmortem was given to eight hours". This indicated that the F.I.R., is ante-time and renders whole of the prosecution version doubtful.
14. In the instant case, it is necessary to peruse the evidence of Ziaullah Khan (PW-7)-the complainant and Aslam Khan (PW-8). Ziaullah Khan (PW-7)-the complainant stated that he went to the spot at about 8:30 a.m. Along with his father All Akber Khan (since dead), his mother Asmat Bibi, his brother Aslam Khan (PW-8) where occurrence took place on receiving information about raising of construction at the spot. Ziaullah Khan (PW-7)-the complainant deposed that Sikandar Khan and Muhammad Khan accused inflicted blows with vahola on right cheek to his mouth (injury No, 3) and front of his chest (injury No, 4). Muhammad Aslam (PW8) has also deposed almost similar facts which have been deposed by Ziaullah Khan (PW-7)-the complainant. Dr. Maqbool Mubarak (PW-10) had observed injuries on front of middle of chest (injury No, 1 and its exit injury No, 2), at below right ear to left side of mandible with fracture of underline bone (injury No, 3), on upper chest skin deep (injury No, 4) and on part of lateral surface of right thigh (injury No, 5) on the dead- body of the deceased. The medical evidence shows that the deceased had died on account of injuries No, 1, 2 and 3. No internal damage had been caused by the injury No, 4 as it was skin deep only and was simple in nature. Both prosecution witnesses had not attributed specific injury to the appellants as injury No, 3 was declared fatal and injury No, 4 was declared simple in nature.
Muhammad Saleem, S.I. (PW-6) came to the spot and after inspection of dead-body prepared the inquest report (Ex.PL). The inquest report (Ex.PL) contains the factual observations of the Investigation Officer (PW-6) about the dead-body. He has shown therein in column No, 24 that the dead-body was lying on the ground in position that the head of the deceased was at north whereas legs were at southern side. Whereas Ziaullah Khan (PW-7)-the complainant deposed during crosb-examination that, "He was lying on the ground at such position that his head was south side and his seat was on North side. He was lying on back having face towards sky."
Muhammad Aslam (PW-8) has also deposed in similar way which has been deposed by Ziaullah Khan (PW-7)-the complainant. Apart from above, in the rough site plan (Ex.PM) prepared by the Investigation Officer as well as scaled site plan (Ex.PA and Ex.PA/1) the position of both the accused-the appellants have been shown at point No, 3 which is in between South and East. The injury No, 3 had been caused by a blunt weapon whose blade was of slight slave shape and by standing at point No, 3, which is in between South and East, it was not possible to cause injury if deceased was laying in the position that the head of the dead-body was at north whereas legs were at southern side. Under the circumstances it can be said that the inquest report is contrary to the ocular evidence. This also throws clouds of doubts on the ocular testimony. It is also obvious that injury No, 3, which is a crushed wound, was not specifically attributed to any one of the appellants. There was every chance of these witnesses making concoction in their version.
Moreover, if the nature of injuries No, 3 and 4 receiv.Ed by the deceased is seen, it would appear that injury No, 3 was crushed deep wound in size of 15 x 3 c.m., extending from below right ear to left side of mandible with fracture of underline bone and the injury No 4 was lacerated wound in size of 5 x 1 C.M., on the front of right upper chest skin deep. The learned counsel for the complainant had submitted that injury No, 3 was caused by both the appellants as they gave blows at one place due to which wound was declared crushed wound by the doctor. On perusal of testimony of Dr. Maqbool Mubarak (PW-10) and post mortem examination report (Ex.PQ) it does not reveal that injury No, 3 was result of the shearing blows and of same force by a weight. The crushed wound occurs by crushing of the skin between two hard objects. Lacerations occur due to the tissues being crushed between bone and some hard object, such as the blunt instrument. The reason is that the viola is quite heavy and weighty weapon and accordingly when such a weapon is used in the commission of the offence, it is but natural that the resultant injury marks would be of crushed shape. The blunt force produces extensive bruising and laceration of deeper tissues, it is called "crushing" injury. In the instant case as per prosecution case both appellants have caused vahola blows on right cheek of mouth and front of chest of the body of Ali Akber Khan-the deceased. The injury No, 3 is crushed wound and the mandible bone was fractured. It is a case of single blow with blunt weapon which crushed the skin and deep tissues and same is not result of repeated blows. In case of multiple blows, caused at the same place that should be wider in nature having multiple fractures of mandible bone. In case of blows made at same place by two persons it is not possible that same would be inflicted at the same place without touching adjusting parts of the face and it may not have caused multiple fracture of mandible bone of the deceased. All above-stated circumstances of the case, indicated that the incident did not take place as stated by the prosecution.
15. To prove the ocular account, prosecution had produced two eye witnesses. Ziaullah Khan (PW- 7)-the complainant and Aslam Khan (PW-8) are real sons of the deceased-Ali Akber Khan. Both the witnesses are related inter-se with the deceased. Ziaullah Khan (PW-7)-the complainant, who is the son of the deceased, has stated that on 04-10-2007, he was present in his house at Musakhel when he received a call of Qadir Khan son of Jehangir Khan on cell phone who informed him in presence of his father Ali Akber Khan, his mother Asmat Bibi, his brothers Aslam Khan (PW-8) and Hafiz Muhammad Rizwan that Sakandar Khan and others were raising construction their common plot.
' Whereupon, he (PW-7) along with his father, mother and brother-Muhammad Aslam (PW-8) went to the spot at about 8:30 a.m., Where Habibullah accused (since proclaimed offender) and Hayatullah (since acquitted) both armed with pistol 30 bore, Matiullah accused (since acquitted) armed, with danda (all sons of Sikandar Khan accused), the accused-Sikandar Khan and Muhammad Khan both armed with vahola were present and they were busy in raising construction over the plot. The father of Ziaullah Khan (PW7)-the complainant namely Ali Akber Khan (since dead) forbade the accused persons from construction of the house, whereupon Habibullah (since proclaimed offender) made fire shot with his 30-bore pistol on the chest of Ali Akber Khan, the deceased who fell down after receiving fire shot. Thereafter, Sikandar Khan and Muhammad Khan accused inflicted blows with vahola on right cheek to his mouth and front of his chest.
Subsequently Matiullah accused (since acquitted) inflicted danda blow on Ali Akber Khan, deceased which hit on his right flank. Hayatullah accused (since acquitted) had made continuous aerial firing by raising lalkara that if any one came near he (Hayatullah accused) would be done to death. He (PW-7) stated that the accused fled away while making aerial firing. Muhammad Aslam (PW8) has also deposed almost similar facts which have been deposed by Ziaullah Khan (PW-7)- the complainant. So, both the eye witnesses, Ziaullah Khan (PW-7)-the complainant and Aslam Khan (PW-8) are not natural witnesses as they claimed that they proceeded to the place of occurrence after receiving above said information from Qadir Khan son of Jehangir Khan. In the instant case most natural witness was Qadir Khan son of Jehangir Khan who renders information regarding presence of the accused persons and raising construction on the common plot. The prosecution was bound to establish presence of the witnesses at the place of occurrence and time of occurrence on the first occasion by producing Qadir Khan son of Jehangir Khan, who was independent witness. Ziaullah Khan (PW-7)-the complainant deposed during cross-examination that, "The person who informed us on telephone namely Qadir Khan had not been produced as witness during the investigation or in this complaint case as cursory witness." Aslam Khan (PW- 8) deposed during cross-examination that, "Qadir Khan who informed us about the disputed plot on telephone has never been produced as witness during the investigation. We proceeded after receiving telephone call towards the disputed plot within 4/5 minutes." The investigating officer-Muhammad Saleem, SI (PW-6) deposed during cross-examination that, "The entry of Qadir Khan s/o Jehangir Khan Caste Bai r/o Musa Khel through mobile phone gave an information which was not produced before me nor I myself interrogated him nor I took into possession mobile phone from the said Qadir Khan."
Thus, it was established from the evidence of Ziaullah Khan (PW-7)-the complainant and Aslam Khan (PW-8) that reason for their proceeding to place of occurrence was the information given by Qadir Khan son of Jehangir Khan, therefore, an adverse inference is to be drawn within the meaning of Article 129(g) of Qanun-e-Shahadat Order, 1984 that had Qadir Khan son of Jehangir Khan been produced before the learned Trial Court, he would not have supported the prosecution case. Reliance is placed on the case reported as "The State and others v. Abdul Khaliq and others"
(PLD 2011 SC 554). The said circumstance in the opinion of court would raise considerable doubt regarding the veracity of the evidence of both the prosecution witnesses and point to an infirmity in that evidence as would render it unsafe to base the conviction of the accused appellants upon it.
16. The motive set up by the prosecution in the complaint (Ex.DB) and F.I.R. (Exh.PJ) was that about some years ago Ali Akber Khan-the deceased murdered one Faizullah Khan whereas Hayatullah accused (since acquitted) also received injuries in the said occurrence and the said occurrence was compromised but Hayatullah (since acquitted) kept the grudge in his mind and did not accept the compromise from his heart. The accused party remained in search for some excuse to take revenge and they murdered Ali Akber Khan, deceased on the pretext of dispute of construction. Whereas Hayatullah (since acquitted) was declared innocent during investigation and his name was placed in column No, 2 of the report No, 173, Cr.P.C. The motive was attributed to the co-accused Hayatullah who was acquitted during same trial. Muhammad Saleem Si. (PW-6) deposed during the cross examination that, "It is in my knowledge that the motive of the occurrence is dispute of plot between the parties. At the time of registration of time, no documents about the ownership of plot in dispute were produced before me nor that was produced during the investigation. I have not verified the above said motive from the Revenue Officer or any other independent person. It is correct that the motive was not verified by any one independent other than the complainant party from the vicinity."
' Ziaullah Khan (PW-7)-the complainant deposed during cross-examination that, "I had not provided any proof of the ownership of the place of occurrence during the investigation. No proof about joint ownership was produced during the investigation by me." He (PW-7) further deposed that, "It is correct that we meet with each other occasionally being residents of the same area. There is no criminal case registered between the accused party and our side during the whole period of 12 years after the said occurrence."
' Muhammad Aslam (PW-8) deposed during cross-examination that, "We had not produced the documents about the title of disputed plot during the investigation.
Have not brought any proof about the said spot with me. There is no suit or no complaint Is pending about the said plot in auCourt."
17. Apart from above, the rougr. Site plan (Ex.PM) which contains the factual observations of the Investigation Officer about the spot position is proved by the testimony of the Investigating Officer (PW-6). At about 9.50 a.m. The Investigating Officer (PW-6) reached at the spot and after inspection of the spot the investigating officer (PW-6) prepared rough site plan (Ex.PM). The investigating officer (PW-6) deposed during cross-examination that, "The only bricks were put in the foundation about 5/6 feet in length." In the rough site plan (Ex.PM), the details of the incident were given wherein foundation about 5/6 feet in length was not shown. So, in view of above prosecution remained unable to connect the appellants with the crime and even the prosecution case in this regard was vague and can hardly inspire confidence. In the circumstances, I cannot avoid the conclusion that the motive, as alleged, was an afterthought and has not been attributed to the appellants.
18. As far are alleged recoveries of vaholas, P-4 and P-5 on the disclosure of Sikandar Khan and Muhammad Khan accused respectively were not kept in the safe custody nor same was stained with blood. Entire prosecution evidence is silent that whether after recoveries of vaholas P4 and P-5 on the disclosure of Sikandar Khan and Muhammad Khan accused respectively were same remained, which makes entire recovery proceedings highly doubtful. So the benefit of doubt has accrued in favor of the appellants. I am of the view that the prosecution has failed to prove alleged recoveries and thereafter its safe custody. So recoveries of violas P-4 and P-5, are of no consequence.
19. The learned counsel for the complainant had put much emphasize that after the occurrence, the appellants absconded themselves. It is admitted fact that Habibullah accused (since proclaimed offender), Hayatullah accused (since acquitted) and Matiullah accused (since acquitted) are sons of Sikandar Khan accused . It appears that the complainant had involved entire family by widening the net. In the instant case medical evidence is in conflict with the ocular account and only one thing goes ,against the appellants namely Sikandar Khan and Muhammad Khan which was their ascendance for almost twenty months and four days. In such like cases accused also abscond for fear of the arrest and being tortured by the police. However, the factum of ascendance, even if established, could only be used as corroborative evidence and was not substantive piece of evidence. It is established principle of law that mere ascension is not a proof of guilt of an accused. Reliance is placed on "Rasool Muhammad v. Asal Muhammad and another"
(PLJ 1995 SC 477). From the above it can be ascertained that prosecution has badly failed to bring whom guilt of the appellant through straight forward, confidence inspiring and corroborative evidence.
20. Admittedly co-accused namely Hayatullah of the appellant has been acquitted by the learned Trial Court on the same set of evidence. Whereas co-accused Matiullah was acquitted by this Court. There is no challenge to judgment of acquittal. The major part of evidence of the prosecution was disbelieved qua the above-named accused. The prosecution version cannot be believed qua the other accused in the absence of very strong corroboration.
21. Therefore; from the evidence on record, I find that a reasonable doubt exists in the prosecution version. The genesis of the occurrence has been concealed. The occurrence has not taken place as deposed by the PWS. The ocular evidence is also not proved beyond reasonable doubt to the extent of the appellants. Keeping in view the cross-examination of the PWs, possibility of injury by fall in the present case also cannot be ruled out.
22. In view of the above; .1 find that a reasonable doubt exists regarding the prosecution version.
The PWs also cannot be held .As reliable witnesses. Therefore, giving benefit of doubt fo the appellants, the Appeal No, 145-J of 2012 filed by Sikandar Khan and Muhammad Khan, appellants is accepted in Coto: tonviction and sentence recorded by the learned *trial Court .Vide judgment dated 23.02.2012 is set aside as a consequence whereof, Sikandar Khan and Muhammad Khan, appellants are ordered to be acquitted of the charge in a private complaint, offences under Sections 302, 148, 149, P.P.C., in case F.I.R. No, 143 of 2007 dated 04.10.2007, offence under Sections 302, 148, 149, P.P.C. Registered' at Police Station, Musa Khel, District, Mianwali. The appellants are in jail. They are directed to be released forthwith, if not required in any other case.
23. So far as Criminal Revision No, 397 of 2012 filed by the complainant, namely Muhammad Ziaullah Khan for enhancement of sentence of the appellants as well as compensation amount awarded by the learned Trial Court is concerned, for the reasons afore-stated, the same is devoid of any legal force, which is accordingly dismissed.