WIQAR AHMAD, J.---Appellant namely Muhammad Zaman has called in question judgment of his conviction and sentence dated 26.10.2018 passed by learned Additional Sessions Judge Chakdara Camp Court at Timergara, vide which he was sentenced as follows; under section 302(b), P. P.C. to life imprisonment along with payment of compensation of Rs.
500,000/- five hundred thousand) under section 544-A, Cr.P.C. payable to legal heirs of the deceased, or in default thereof, he shall further undergo six months' simple imprisonment. under section 324, P.P.C. to 2 years simple imprisonment. Both the sentences were ordered to run concurrently. Appellant was also extended benefit of section 382-B, Cr.P.C.
2. Appellant faced trial in the criminal case registered vide FIR No. 47 (Ex. PW-7/1) dated 17.02.2016 under sections 302, 324/34, P.P.C. at Police Station Balambat District Dir Lower, on the basis of 'Murasila' (Ex. PW-1/1) sent by Imtiaz Khan AS1 (PW-13) to the police station on 17.02.2016. The complainant namely Sana Ullah lodged report of the occurrence in injured condition at the emergency ward of DHQ hospital Timergara, by stating that he along with his uncle namely Sajjad All had been present in a hairdressing salon for haircut. Accused namely Nasir Khan and Farhat Ullah armed with knives along with their father namely Muhammad Zaman (appellant herein) having a stick, entered the shop on 17.02.2016 at 17:30 hours and attacked complainant as well as his uncle namely Sajjad Ali. As a result of stab blows of Farhat Ullah the complainant received injury on his left arm and right shoulder while as a result of stab blows of Nasir Khan his uncle Sajjad received injuries on his chest, at his left side, right side near the neck as well as on his right arm and both the shoulders. The appellant namely Muhammad Zaman was alleged to have also given stick blows to the complainant as well as the deceased. An earlier verbal altercation was disclosed as motive for commission of the offence. Beside the complainant Wasim, Nisar-ul-Haq and Umar Sadiq were also stated to have seen the occurrence. The three accused were accordingly charged while lodging first report of the occurrence.
3. Since accused were initially avoiding their lawful arrest, therefore proceedings under section 512, Cr.P.C. were initiated against them and they were declared proclaimed offenders by learned Magistrate Dir Lower vide his order dated 23.07.2016.
4. On arrest of present appellant namely Muhammad Zaman, further investigation were also made in the case in hand. Investigating Officer had earlier recovered blood through cotton from the spot of occurrence (Ex. P-1 and Ex. P-2) vide recovery memos dated 18.02.2016. He had also taken in possession a vitz motorcar belonging to present appellant vide recovery memo. Ex. PW-4/1 dated 18.02.2016. Investigating Officer had also taken in possession a blood stained stick vide recovery memo Ex. PW-4/2 dated 18.01.2016. Blood stained garments of the deceased as well as that of injured/complainant were also taken in possession. The recovered items had also been sent to Forensic Science Laboratory (hereinafter referred to as "FSL") for the purpose of comparison, report Ex. PW-9/10 was also received therefrom.
5. On completion of investigation, complete challan was submitted against appellant before learned trial Court. After compliance of proceedings under section 265-C, Cr.P.C, charge was framed against him on 28.03.2017, to which he pleaded "not guilty" and claimed trial. Prosecution produced as many as fourteen (14) witnesses, whose statements were recorded and placed on file.
On conclusion of proceedings in the case, accused was examined under section 342, Cr.P.C.
Learned trial Court convicted and sentenced the appellant vide impugned judgment dated 26.10.2018, as stated earlier.
Feeling aggrieved from his conviction and sentences, accused/ appellant has filed the instant appeal before this Court while complainant has also filed connected Criminal Revision No. 97-M of 2018 for enhancement of the sentences awarded to accused/respondent.
6. We have heard arguments of learned counsel for the parties, learned Asti: A.G appearing on behalf of State and perused the record.
7. Perusal of record reveals that the two accused to whom the main role of perpetration of the offence had been attributed, have been absconders till date. So far as the role of present appellant is concerned, be was father of the other two accused having an age of 56/57 years. He was alleged to have participated in the occurrence, in furtherance of common intention of the accused.
Prosecution have been relying upon eye-witness account of the two witnesses recorded as PW-1 and PW-2, besides the corroboratory evidence of recovery of stick as well as a motorcar recovered immediately after the occurrence.
8. Complainant was examined in the case as PW-1, who has given a narration of occurrence in his examination-in-chief, similar to the one given in the FIR. This witness has no doubt received injuries in the occurrence and his presence at the spot cannot be doubted but veracity of his statement, vis-a-vis role of the appellant in commission of the offence may be put to a test. In his cross- examination this witness has deviated from his earlier stance by stating that the accused Nasir and Farhat Ullah first entered the shop at 17:25 hours while the appellant had come after five minutes at 17:30 hours. Such a variation was again put to the witness in the form of a question, which is reproduced hereunder along with the answer given by the witness; Statement of the barber, in whose shop the occurrence had taken place has also been recorded as PW-2. Important aspect of his statement is that the appellant had not been known to him earlier. In his cross-examination this witness admitted it correct that he had stated in his statements recorded under section 161 as well as 164, Cr.P.C. that he had come to know about name of the appellant later on. When he had not been knowing him by name -as this witness had been belonging to a different village-then the prosecution should have got the appellant identified through the witness by conducting a proper identification parade according to law. But no such identification parade has been conducted by the prosecution. Testimony of this witness cannot be considered against the appellant in the given situation. The eye-witness account of the prosecution have therefore been lacking in establishing guilt of the appellant beyond reasonable doubt. On the face of motive presented by the prosecution, it is also difficult to believe that a person of the age of 56/57 years would accompany his two sons of the age of 20/21 years and 23/24 years for killing his nephew and that also in absence of a potent motive.
9. Pointation of the place of recovery of motorcar made by the appellant, and its use for escape of other accused from the place of occurrence, cannot be relied upon due to the reason that a separate motorcycle, on which the other two accused namely Nasir Khan and Farhat Ullah had come to the spot, has also been shown recovered from point "F" outside shop of the barber. Neither the complainant nor other eye-witness had mentioned the fact that after the occurrence appellant had taken the other accused in his motorcar and that same had been used for escape of the accused from the spot. Besides the corroboratory evidence of recovery of blood stained stick and the motorcar, may not be the sole basis for convicting the appellant when direct evidence against him was not found confidence inspiring. It was held by Hon'ble Supreme Court of Pakistan in the case of "Imran Ashraf and 7 others v. The State" reported as 2001 SCMR 424 that when prosecution has failed to prove case against the appellant beyond reasonable doubt then the corroboratory evidence produced in the case could not be considered in isolation for convicting an accused. Relevant part of observation of the august Court is reproduced hereunder for ready reference; "Recovery of incriminating articles is used for the purpose of providing corroboration to the ocular testimony. Ocular evidence and recoveries, therefore, are to be considered simultaneously in order to reach for a just conclusion."
In support of same ratio, further reliance may also be placed on the judgment reported as 2007 SCMR 1427. Even otherwise, a single circumstance creating reasonable doubt is sufficient for acquittal of an accused and that it is not necessary that for acquitting an accused there must be numerous doubts in the case of prosecution. In this respect, reliance is placed on the judgment of Hon'ble Apex Court rendered in the case of "Muhammad Khan and another v. The State" reported as 1999 SCMR 1220.
10. In light of what has been discussed above, it is evident that prosecution have not been able to prove case against the appellant beyond reasonable doubt. On allowing of the instant appeal, appellant is acquitted of commission of the offence by extending him benefit of the doubt. Criminal Revision No. 87-M of 2018 has become infructuous and same is dismissed accordingly.
11. These are reasons for our short order of even date, which read as follows; For reasons to be recorded later, we allow this appeal. set-aside the judgment of conviction dated 26.10.2018 passed by learned Additional Sessions Judge Chakdara Camp Court at Timergara in case FIR No. 47 dated 17.02.2016 registered under sections 302, 324,34, P.P.C. at Police Station Balambat District Dir Lower and resultantly acquit the appellant namely Muhammad Zaman of the charges levelled against him. He be released forthwith if not required in any other case." 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.