ABDUL HAMEED BALOCH, J. This Criminal Jail Appeal has been filed by the appellant through Superintendent District Jail Quetta, against the judgment dated 24.02.2021 ("the impugned judgment") passed by the learned Additional Sessions Judge-I, Quetta ("the trial court"), whereby the appellant was convicted and sentenced under section 324 of the Pakistan Penal Code, 1860 ("P.P.C.") to suffer five years' R.I and to pay fine in the sum of Rs.50,000/-, in default whereof to further suffer SI for six months. Under section 337-F(i), P.P.C. for one year as Tazir with Daman of Rs.30,000/- to be paid to the injured. The benefit of section 382-B of the Criminal Procedure Code, 1898 ("Cr.P.C.") was also extended in his favour.
2. Facts of the case are that pursuant to report of Abdul Karim son of Abdul Razaq (complainant), instant criminal case, vide FIR No.103/2018 was registered at Police Station Kharoteabad, Quetta, wherein it was alleged that on the fateful day of incident i.e. 21.05.2021, at about 09:15 a.m. he was present at his home, when he has been informed that his younger brother Fazal Rehman has received bullet injury, and is lying at BMC Hospital, Quetta, whereupon he rushed to the hospital, where he found his brother in injured condition. On query his brother told him that he went to Sabzal road for his personal work, and on coming back when reached Sasoli Streat, where his brother-in-law Karim Dad, who were already present there on seeing him made firing upon him by means of pistole, and sustained bullet injuries to him.
3. After completion of investigation, challan was submitted before the trial Court. The trial court after full dressed trial, convicted and sentenced the appellant as mentioned hereinabove, hence this appeal.
4. Heard the learned counsel for the appellant and learned State counsel at length and have perused the record with their able assistance. In order to substantiate the charge, the prosecution produced as many as nine witnesses. On the written application Ex-P/1-A of complainant Moulvi Abdul Karim the FIR was registered, where the complainant alleged that on receipt of information through cell phone that his brother sustained bullet injuries and is present at BMC Hospital, Quetta, he rushed to the hospital, where his brother was found in unconscious condition, who has received bullet injuries at his left arm and left thigh. On query his brother told him that his brother-in-law fired upon him. The motive is old enmity. During cross-examination the witness stated as under: PW-2 Fazal-ur-Rehman (injured) deposed that the accused fired two shots upon him, due to which he fell on the ground and people gathered there had taken him to the hospital. During cross- examination he stated as under: PW-3 Dr. Ali Mardan produced MLC as Ex-P/3-A. As per MLC, the injured was brought to hospital by Muzamil Shah SI. In cross-examination stated that no Trauma Center exists at hospital from the day of incident till now; that he had personally not medically examined the injured Fazal-ur- Rehman.
PW-4 Abdul Latif deposed that on 21.05.2018 he was present at his house and at about 09:15 a.m. on hearing firing he came out from his house and saw his brother Fazal-ur-Rehman lying in injured condition. He had taken him to hospital in a vehicle, whore on query his brother told him that their brother-in-law Abdul Karim made firing upon him. The witness during cross-examination stated as under: PW-5 Muhammad Hanif Sub-Inspector stated that on 29.08.2020 the complainant produced the blood stained trouser, which were taken into custody vide recovery memo Ex-P/5-A.
PW-6 Waqas Ahsan ASI, who narrated the contents of disclosure and pointation memo and produced the same as Ex-P/6-A and Ex-P/6-B.
PW-7 Muhammad Darain (Investigating Officer) who produced the FIR as Ex-P/7-A, site plan Ex- P/7-B, incomplete Challan Ex-P/7-C.
PW-8 Abdul Wali ASI, who produced the record of another FIR, in which the appellant was absconder.
PW-9 Abdul Ghafoor SI, (First Investigating Officer) who recorded the statement of witnesses.
5. The prosecution case hinges upon the statement of PW-2 (injured) and PW-3 (Medical Officer), whereas the other witnesses have not seen the accused at the place of occurrence. The injured narrated the story to PW-1 (complainant) and PW-4, as such PW-1 and PW-4 are not ocular witnesses. PW-2 stated that the people gathered at the place of occurrence, shifted him to hospital, whereas PW-4 brother of injured stated that on hearing firing, he reached at the spot, where his brother was lying in injured condition, he shifted him to the hospital. PW-3 produced MLC as Ex-P/3-A, which transpires that the injured was brought by Muzamil Shah SI. PW-1 in Ex-P/1-A did not mention the presence of PW-4 (his brother) in the hospital on the date of occurrence. In this regard the Hon'ble Supreme Court of Pakistan on the case of Liaquat All v. State 2021 SCMR 781, observed as under: "It has been observed by us that in the MLC (Ex.PD) issued by Dr. Farooq Cheema (PW-5), there is no mention of the names of complainant Muhammad Kabeer (PW4) and Muhammad Yousaf (PW1) rather it 'shows that Muhammad Nawaz was medically examined through Nazir Ahmad 777/C (not produced)."
6. The statements of prosecution witnesses are not above the board, they made contradictory statements. PW-9 stated that the police personal recorded the statement of witnesses including the injured on 21.08.2019, whereas the PW-2 in his deposition stated that the police personal recorded his statement at Trauma Center after three days of the occurrence, while PW-3 Dr. Ali Mardan stated that no Trauma Center exists at the Hospital from the day of incident till now. PW-4 stated that he shifted his brother to BMC Hospital. The PW-7 produced FIR as Ex-P/7-A, which transpires that the occurrence took place on 21.08.2018 at 9:15 a.m. (day), whereas the FIR was registered at 10:10 a.m., while PW-4 stated that his statement was recorded at 10:00 a.m. on the date of occurrence, whereas the blood stained articles were handed over to the investigating officer on 29.08.2018 by the complainant. It is astonishing why the investigating officer has not taken into possession the blood-stained articles on the day of occurrence and waited for a week.
Such glaring contradiction, infirmities, omissions cannot be lightly ignored. In this regard reliance is placed on the case of Muhammad Jabran v. State 2020 SCMR 1493.
7. PW-1 in Ex-P/1-A stated that there exists enmity between the parties. Admittedly the occurrence took place in broad day, and as per PW-2 the people gathered and took him to hospital but without any reason neither name of such person who taken the injured to hospital was disclosed nor statement of anyone amongst the people were recorded. It is settled principle where the enmity exists between the parties the rule of caution required independent corroboration. The conviction on the basis of inimical witnesses is against the principle of natural justice. Reliance is placed on the case of Muhammad Irshad v. State 1999 SCMR 1030, where it has been held that "Evidence on capital charge must come from an unimpeachable source or be supported by strong circumstances which might remove inherent doubt attaching to the evidence of the interested and partisan witnesses."
8. Mere injury on a person of witness does not prove that he come forward with whole truth. The injured means the person was present at the time of occurrence. Only presence on the scene of occurrence does not stamp gospel truth to his testimony. In Muhammad Wasif Khan's case 2011 PCr.LJ 470, it has been held as under:
16. Although Zahid Khan and Rana Muhammad Asif (PWs.2 and 3) are the injured witnesses but as already discussed, they have made improvements and in this way their evidence is not confidence inspiring. The presence of the witnesses at the time of occurrence is established as they had stamp of injuries on their persons but the same is not per se tantamount to a stamp of credence on their testimony. The injuries on their persons cannot be considered sufficient to hold that they had spoken the whole truth. Injuries on the person of the eye-witnesses would not raise any presumption that whatever they are telling is the truth. Reliance can be, made to the cases of Said Ahmad v. Zammured Hussain and 4 others (1981 SCMR 795), The State v. Muhammad Raja and 3 others (PLD 2004 Peshawar 1), Muhammad Hayat and another v. The State (1996 SCMR 1411) and Naseer Ahmad and 5 others v. The State 1984 MLD 1461.
9. The judgment of the trial court is merely based on two years abscondence of accused/appellant. It is settled principle of law where an incriminating piece of evidence is not put to accused in statement under section 342, Cr.P.C., the court cannot rely upon such testimony.
From the perusal of section 342, Cr.P.C. the word shall indicate the accused is mandatory. Mere abscondence is no conclusive proof of guilt of accused. The trail court was under legal obligation while recording statement under section 342, Cr.P.C. has to put the question in regard of abscondence specifically but the trial court failed to do so. It is settled principle of natural justice that a person should not be convicted on the basis of something to which he was not given notice. In the case titled Muhammad Shah v. State 2010 SCMR 1009 it was held that "If any incriminating piece of evidence is not put to accused in his statement under section 342, Cr.P.C. for his explanation, then the same cannot be used against him for his conviction". In this regard reliance is also placed on the case of Imtiaz alias Taj v. State 2018 SCMR 344.
10. It is settled principle of law that the accused is favorite child of law, where any reasonable doubt arise in the case of prosecution, the accused is entitled for benefit of such doubt as matter of right not grace. Reliance is placed on the case of Muhammad Akram v. State 2009 SCMR 230 and on the case of Sher Umar Khan v. Khan Pur alias Khaney PLD 2015 Pesh. 143.
Thus, in view of above, the appeal is allowed. The impugned judgment dated 24.02.2021, passed by the Additional Sessions Judge-I, Quetta in Crime No.103/2018 lodged with Police Station Kharoteabad, Quetta, is set-aside and the appellant. Abdul Karim son of Abdul Qayyum alias Khudai Nazar is acquitted of the charge under sections 324, 337-F(i), P.P.C. The appellant is in custody, he be released forthwith if not required in any other case.