SALAH-UD-DIN, J.- Appellant namely Sahib Zaman has called in question the judgment of his conviction and sentence passed by the learned Additional Sessions Judge/Judge Child Protection & Juvenile Welfare Court, Swat dated 21.12.2023, vide which he was convicted and sentenced as follows: - U/S 302 (b) PPC to life imprisonment as Ta'zir along with compensation of Rs. 1,000,000/- (one million) under section 544-A Cr.P.C payable to legal heirs of the deceased, or in default thereof, the accused shall further undergo six months simple imprisonment. The amount of compensation shall be recoverable as arrears of land revenue. U/S 324 PPC to three-years rigorous imprisonment, along with fine of Rs. 50,000/-, or in default thereof to suffer three months, simple imprisonment. U/S 337-F (iii) PPC to three-years rigorous imprisonment, along with payment of Daman of Rs.
200,000/-, payable to the injured Umar Rahim or his legal heirs. U/S 201 PPC to five years rigorous imprisonment, along with fine of Rs. 30,000/-, or in default thereof to undergo two-months, simple imprisonment. U/S 15-AA to six months rigorous imprisonment, along with fine of Rs. 20,000/-, or in default thereof to suffer one-month, simple imprisonment. All the aforesaid sentences were ordered to run concurrently, however, benefit of section 382B, Cr.P.0 was extended to the appellant.
2. Appellant faced trial in a criminal case registered against him and other co-accused vide FIR No. 243 dated 07.8.2022, under sections 302, 324, 337-F (iii), 34,201 PPC, R/W section 15-AA at Police Station Kokarai, District Swat. As per contents of ibid FIR, complainant namely Ismail reported the matter to local police at emergency ward of Saidu Sharif hospital in terms that on the fateful day he was present in his house, when in the meanwhile, he received information that some accused have made firing upon his father. Pursuant to receipt of such information, when the complainant rushed to the spot, whereby he found the dead body of his father namely Sabir Khan, lying in a pool of blood. On the spot, the complainant also spotted the injured namely Umar Rahim, on inquiry, he told the complainant that on the day of occurrence he along with father of the complainant have gone to Mingora Bazar in connection with some personal work. On return, when the complainant- party reached to the venue of crime, the accused Sahib Zaman, Bilal and Badar Zaman duly equipped with firearms were already present there. On seeing the complainant-party, all the three accused started firing upon the complainant-party and due to firing of present appellant father of the complainant got hit on different parts of his body and died on the spot, whereas the injured Umar Rahim sustained firearm injuries on different parts of his body. It was alleged by complainant that the occurrence might have been witnessed by anyone. Motive behind the occurrence was disclosed to be a dispute over the women-folk. In view of report of the complainant Murasila'
(Ex.PA) was drafted which culminated into ibid FIR (Ex. PW-2/1) registered against the present appellant and other co-accused at police station concerned
3. Upon completion of investigation, challan was submitted against the accused before the learned trial Court. Accused were summoned by the learned trial Court and charge was framed against them to which they pleaded not guilty and claimed trial. The prosecution was invited to produce its evidence, who accordingly examined thirteen (13) witnesses in support of their case.
Thereafter, statements of accused were recorded under section 342 Cr.P.C. On conclusion of proceedings in trial, the appellant was convicted and sentenced vide the impugned order/judgment dated 21.12.2023 of the Court of learned Additional Sessions Judge/ Judge Child Protection & Juvenile Welfare Court, Swat, as detailed in Para (1) of this judgment. Appellant has now challenged the aforesaid judgment by filing the instant appeal. Since through the aforesaid judgment, the co-accused namely Badar Zaman Sheikh and Sheikh Bilal Zaman have been acquitted by the learned trial Court by extending them benefit of the doubt, therefore, against their acquittal the appellant complainant has filed the connected criminal appeal bearing No. 35-M of 2024 along with connected criminal bearing No. 08-M of 2024 for enhancement of the sentences awarded to the accused-respondent.
4. Arguments of learned counsel for the parties as well as learned Astt: A.G appearing on behalf of the State were heard in considerable detail and the record perused with their able assistance.
5. In every criminal case before analyzing legal worth and credibility of the evidence so furnished by the eyewitnesses, first the prosecution has to prove their presence on the spot and at the relevant time. In this case, the complainant appeared in the witness-box as PW-1, whereas the injured PW namely Umar Rahim who was also the sole eyewitness of the occurrence examined in Court as PW-4.
6. First and foremost, this Court has to analyze and evaluate the testimony of injured PW namely Umar Rahim in the light of evidence furnished by the prosecution. As per testimony of Investigating Officer namely Nasir .".Rafeeg Sub-Inspector, PW-13, he had recorded statement of the injured PW Umar Rahim under section 161 Cr.P.C on 19.8.2022 i.e. after almost 11 days of the occurrence. No explanation whatsoever has been offered by the prosecution that why statement of this sole eyewitness of the occurrence has not been recorded at first instance instead of waiting for long 11 days. In his initial statement, the injured PW Umar Rahim has nominated all the three accused for firing upon the complainant-party, whereby it was specifically deposed by this injured PW that at the relevant time the present appellant Sahib Zaman had muffled his face. The next version/stance of injured PW came into surface, when he has recorded his statement under section 164, Cr.P.C before the Magistrate concerned on 29.8.2022 i.e. after long 22-days of the occurrence. In order to inculcate the true sense of his statement (Ex. PW-13/20), relevant part of which is reproduced hereunder for ready reference: - The injured PW deposed in his aforementioned statement that on the day of occurrence he along with deceased Sabir Khan were going to his house situated in the vicinity of village Bagh and at the relevant time he was going ahead of Sabir Khan, when in the meanwhile firing started. When he looked back the accused Sahib Zaman had muffled his face with cloth, whereas his sons Bilal and Badar Zaman were present with him on the spot duly equipped with pistols. It was further stated that accused Sahib Zaman has started firing upon Sabir Kfikwith his pistol and resultantly he got hit on different parts of his body and died on the spot. He also deposed that when he tried to come across near Sabir Khan, the accused Sahib Zaman started firing upon him, due to which he got injured. First of all, it was not disclosed by injured PW in his statement before the Magistrate that how he was able to identity the appellant amongst the set of three assailants when admittedly he had muffled his face with cloth and more importantly his statement under section 164, Cr.P.C was recorded after considerable delay of 22-days. In this regard too, prosecution has not come up with any plausible explanation that why statement of this sole eyewitness of the occurrence was not recorded at first instance, especially, when as per card memo, Ex.PW-13/4, the appellant was shown arrested on 10.8.2022 i.e. on the third day of the occurrence. For the sake of arguments, if this PW has received severe firearm injuries on his thighs, then his statement should have been recorded in the hospital qua his effective role of firing, however, the available record suggests, that no visible efforts have been made in this regard, rather the Investigating Officer kept mum for considerable period of 22-days. The matter not end here, when the injured PW Umar Rahim appeared in the witness-box as PW-4, in his examination-in-chief, he has come up with another version of the occurrence to the effect that it was the appellant Sahib Zaman who had opened firing upon the deceased Sabir Khan. He had reiterated his earlier stance in terms that though appellant Sahib Zaman had muffled his face with clothes, however, when he had started firing upon Sabir Khan, the clothe slipped-away from his face, therefore, he was identified amongst the set of three accused. This revelation/improvement was not part and parcel of his earlier two statements recorded under sections 161 & 164, Cr.P.C, respectively. It is also relevant to mention here that PW-4 had disclosed the factum of identity of the appellant qua removal of cloth from his face for the first time in his court statement recorded on 10.7.2023 i.e. after more than 11 months of the occurrence and that too in his examination-in-chief, therefore, these delayed revelation on part of the injured PW would no doubt fall within the category of dishonest improvement. PW-4 also deposed in his cross-examination that on the day of occurrence he had purchased various vegetables and other grocery items, however, these alleged articles have not been taken into possession by the Investigating Officer during the course of investigation. In the same breath, he also admitted as correct that the appellant Sahib Zaman had covered/muffled his face at the time of occurrence, therefore, in view of these glaring variations in the statement of PW-4 there is a high degree of doubt existed about the mode and manner of the instant occurrence and whether he is a truthful witness, as such, benefit of the same has to extended to the appellant. As stated earlier, prosecution has not explained that why statement of the injured was not recorded soon after the occurrence. In absence of any explanation in this regard, it can easily be inferred that recording statement of the injured was unnecessarily and deliberately delayed. Courts always look at such like belated statements of the eye-witnesses with great suspicion. In this regard, we would refer the judgment of august Supreme Court of Pakistan in the case of "Abdul Khaliq Vs. The State" (1996 SCMR 1553) wherein it was observed that: - "There is no explanation furnished by the prosecution for examination of Mir Qalam after 20 days of the incident and for examination of Abdul Jabbar and Muhammad Shah after one month and three days of the incident. It is a settled preposition of law that late recording of 161, Cr. P.C. statement of a prosecution witness reduces its value to nil unless there is plausible explanation for such delay."
Reference may also be made to the case of Muhammad Khan versus Maula Baksh and another [1998 SCMR 570] wherein it has been held that: - "It is a settled law that credibility of a witness is looked with serious suspicion if his statement under section 161, Cr.P.C. is recorded with delay without offering any plausible explanation."
Further reference can be made on the case titled "Muhammad Ikhlas v/s The State" (2025 P Cr.LJ 57), titled "Siraj & 03 others v/s The State" (2024 MLD 1837) and titled "Muhammad Atif Naveed & another v/s The State" (2024 P Cr. LJ 1421).
No doubt, the injured eye-witness was having stamp of firearm injuries on his body in view of medical evidence but that aspect by itself is not sufficient to prove that whatever he had uttered during his examination before the trial Court was the whole truth when otherwise his statement does not inspire confidence. Reliance is placed on Amin Ali and another Vs. The State (2011 SCMR 323) wherein it was observed that:- "Certainly, the presence of the injured witnesses cannot be doubted at the place of incident, but the question is as to whether they are truthful witnesses or otherwise, because merely the injuries on the persons of P.Ws. would not stamp them truthful witnesses."
The statement recorded by injured eye witness appears unbelievable when adjudged in juxtaposition with circumstantial evidence on record. It was held by Hon'ble Supreme Court of Pakistan in the case of "Mst. Sughra Begum and another Vs. Oaiser Pervez and others (2015 SCMR 1142) that it is cardinal principle of justice that ocular-account in such cases plays a decisive and vital role and once its intrinsic worth is accepted and believed then the rest of the evidence, both circumstantial and corroboratory in nature, would be required as a matter of caution.
7. Now coming to the testimony of complainant namely Ismail, whose statement was recorded in the case in hand as PW-1. It is part of his initial report as well as Court statement that he was not an eyewitness of the occurrence because at the relevant time i.e. death of his deceased father he was present in his house. He had also not disclosed the source of his information that who had informed him about the firing being made on his deceased father except a mere assertion in his cross-examination that he was informed about the occurrence telephonically, however, in the same breath, he deposed that he did not provide any mobile phone number to the Investigating Officer, via which he had allegedly received the information. PW-1 i.e. the complainant deposed in his initial statement that three assailants had made firing upon the complainant-party, however, as per version of injured PW Umar Rahim it was appellant Sahib Zaman who had made firing upon the deceased Sabir Khan while the two other accused were shown present on the spot duly equipped with pistols, therefore, both the star witlessness of the prosecution were contradicting each other on material aspect of the case, therefore, their testimonies are of no help to the prosecution qua guilt of the appellant. In this regard if any authority on the above rational is needed, reference can be made to case titled "Taweez Khan v/s The State" reported as 2023 P Cr.LJ 1792, whereby it was held by Baluchistan High Court:- "Complainant was not eye-witness to the occurrence, however, when he received information about the injuries caused to his son, he reached the hospital and there he found the dead body of the deceased. Complainant had not disclosed the source of information regarding the occurrence in his report. Complainant stated during his cross-examination that he was informed about the occurrence by his relative."
Reference can also be placed on the case law titled "Sheikh Tariq Mehboob v/s The State & another" (2022 P Cr.LJ Note 90), wherein it was expounded by Islamabad High Court that "complainant had not disclosed his source of information while lodging FIR. Complainant had not seen the incident and was not present at the place of occurrence, then how he could say that the accident took place due to negligence and carelessness of the respondents". Likewise, in case titled "Muhammad Hussain alias Mushfia v/s The State & another" reported as (2020 YLR 360), the same rational was followed in terms that needless to say that complainant did not disclose the source of information in his report, rather he subsequently introduced that he was informed by his son about the occurrence, which appeared to be an exaggeration of the complainant just to cover an unseen occurrence.
8. Another damaging aspect of this case is that the injured PW Umar Rahim, who was having a stamp of injuries on his person, had neither been made complainant of the instant case nor he had seconded or verified the contents of FIR. Dr. Muhammad Iqbal who had examined the injured PW Umar Rahim deposed in his cross-examination that when the injured was brought to the hospital he was well-oriented in time and space, therefor, the prosecution could not bring on record any explanation that why the injured PW Umar Rahim who was the sole eyewitness of the occurrence and having stamp of injuries on his body has not been made complainant of the instant case despite the fact that he was conscious at the time of his examination in the hospital. It is also part of the record that at the time of lodging of report by the complainant in the hospital, the injured PW Umar Rahim was also present with him. However, he did not inform the complainant in the hospital that it was the appellant who had made firing upon the complainant-party amongst the set of three assailants, rather he kept mum for considerable period of more than 11-months and it was finally in his court statement, he, for the time disclosed the factum of identity of the appellant qua his effective role of firing. The record also shows that the person by the name of Muhammad Yar who had seconded and verified the contents of Murasila' has not been examined as a witness in Court, as such, an adverse inference under Article 129 (g) of Qanun-e-Shahadat Order, 1984 could be inferred in terms that had this PW been produced in Court, he would have not supported the case of prosecution. Reliance is placed on "Muhammad Rafique and others Vs. The State and others" (2010 SCMR 385), wherein it was observed that: - "It is well-settled that if any party withholds the best piece of evidence, then it can fairly be presumed that the party had some sinister motive behind it. The presumption under Article 129(g) of Qanun-e-Shahadat Order can fairly be drawn that if P.W. Amir Ali would have been examined, his evidence would have been unfavorable to the prosecution."
9. So far as corroboratory evidence in the form of recovery a .30 bore pistol, on pointation of the present appellant is concerned. When the said pistol along with crime empties recovered from the spot were sent to the FSL for comparison, the report received thereof would show that these two items have not been matching with each other, therefore, the alleged recovery of weapon of offence i.e. a .30-bore pistol is of no worth to the prosecution qua guilt of the appellant. Even FSL report is negating the stance of complainant and making the whole case doubtful. In case titled "Hashim Qasim and another Vs. The State" (2017 SCMR 986), the apex Court in respect of negative FSL report in the form of circumstantial evidence has held that "in cases of circumstantial evidence, there were chances of procuring and fabricating evidence, therefore, Courts were required to take extra care and caution to narrowly examine such evidence with pure judicial approach to satisfy itself about its intrinsic worth and reliability, also ensuring that no dishonesty was committed during the course of collecting such evidence by the investigators. Further held that where there were apparent indications of designs on part of the investigating agency in the preparation of a case resting on circumstantial evidence, the court must be on its guard against the trap of being deliberately misled into a false inference and the Court's failure to observe such care and caution would be a failure of justice."
10. There is no second opinion at all that circumstantial evidence alone cannot be made basis for conviction of an accused person especially when the ocular-account furnished in the case is not confidence inspiring. It is otherwise well-settled that when substantive evidence fails to connect an accused person with commission of an offence or disbelieved, corroborative evidence is of no help to prosecution, as corroborative evidence cannot by itself prove the prosecution's case. Hon'ble Supreme Court of Pakistan while rendering its judgment in case titled "Muhammad Afzal alias Abdullah and others vs. The State and others" reported as 2009 SCMR 639 has also expressed almost a similar view in para-12 of its judgment, which is reproduced hereunder for ready reference; "After taking out from consideration the ocular evidence, the evidence of identification and the medical evidence, we are left with the evidence of recoveries only, which being purely corroboratory in nature, in our view, alone is not capable to bring home charge against the appellant in the absence of any direct evidence because it is well-settled that unless direct or substantive evidence is available conviction cannot be recorded on the basis of any other type of evidence howsoever, convincing it may be."
Hon'ble Supreme Court of Pakistan in its judgment rendered in case titled "Imran Ashraf & 7 others v/s The State" reported as 2001 SCMR 424, has also observed: - "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.
11. So far as medical evidence is concerned, needless to highlight that medical evidence may confirm direct or ocular account, if any, with regard to set of injuries, kind of weapon allegedly used in the commission of an offence or at least the nature of injuries, however, in context of the case in hand, when ocular-account furnished by a sole eyewitness is not up to the mark, then evidentiary value of medical evidence qua guilt of the appellant as a sole piece of corroboratory evidence cannot be given much weight. Reliance in this regard is placed on the case titled "Abdul Rashid v/s The State" reported as 2019 P Cr. LJ 1456, whereby it has been held that: - "The medical evidence in this case has been furnished by PW-4 Dr. Nasreen Ahmad Tareen, Medical Officer, who has confirmed the unnatural death of deceased. However, the fact remain that medical evidence is only used for confirmation of ocular evidence regarding seat of injury, time of occurrence and weapon of offence used, etc. but medical evidence itself does not constitute any corroboration qua the identity of accused person to prove their culpability.
Reliance in this regard can be placed on the case of "Muhammad Sharif & another v/s The State"
(1997 SCMR 866)."
Conflict between medial evidence and ocular-account has adverse bearing on the prosecution case which cannot be ignored qua guilt of an accused person. Reliance is placed on "Najaf Ali Shah Vs. The State" 12021 SCMR 736). It was observed by Hon'ble apex Court in the said judgment that: - "Once a single loophole is observed in a case presented by the prosecution, such as conflict in the ocular account and medical evidence or presence of eye-witnesses being doubtful, the benefit of such loophole/lacuna in the prosecution's case automatically goes in favour of an accused".
12. Although motive behind a crime is not a requirement of law, however, we deem it appropriate to note that the motive set-up by prosecution has not been proved through any cogent and worth reliable evidence. As per prosecution stance, motive behind the occurrence was disclosed to a dispute over the womenfolk, however, to this effect prosecution has not produced any oral or documentary evidence, hence the alleged motive remained shrouded in mystery as like the case in hand. Reliance in this regard is placed on "Mukhtar Ahmad and others Vs. The State" (PLD 2004 S.0 563). In another case titled "Hameed Khan alias Hameedai Vs. Ashraf Shah and another"
(2002 SCMR 1155) the Hon'ble apex Court of Pakistan held that absence of motive or failure to prove the motive would not adversely affect the prosecution case if it has been proved by reliable evidence.
13. In view of the above, when neither any direct nor any circumstantial evidence is available on the face of record, as such, the case of prosecution is full of doubt all-around, therefore, the appellant has to be extended its benefit.
14. It is well settled that it is. not essential at all to place reliance on multiple doubts coupled with multiple grounds to extend the benefit of doubt to an accused, even a single worth reliable doubt is sufficient enough to extend its benefit to an accused person as it is the cardinal principle of criminal administration of justice that let hundred guilty persons be acquitted but one innocent person should not be convicted. In the case of "Tariq Pervaiz v/s The State" reported as 1995 SCMR 1345, the Apex Court has held as under; - That the concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right.
Further reliance is placed on the judgments of apex Court cited as "Daniel bond (Muslim name Saifullah) vs the State" (1992 SCMR 196), case titled "Ghulam Oadir and 2 others vs the State"
(2008 SCMR 1221) and case titled "Muhammad Zaman vs. the State" (2014 SCMR 749).
15. For what has been discussed above, this Court is of the firm view that prosecution has failed to prove its case against the accused-appellant namely Sahib Zaman, beyond reasonable doubt, therefore, his conviction cannot be maintained. Resultantly, while extending him benefit of the doubt the instant criminal appeal is allowed and the impugned order/judgment of conviction and sentence dated 21.12.2023 recorded by the learned trial Court is set aside and consequently the appellant named above is acquitted of the charges leveled against him. He be released forthwith from the Jail, if not required in any other case.
16. As far as the appeal against acquittal filed by appellant-complainant bearing No. 35-M of 2024 is concerned, since this Court has already allowed the appeal of the appellant Sahib Zaman, preferred against his conviction, therefore, the acquitted respondents namely Badar Zaman Sheikh and Sheikh Bilal Zaman, who have mainly been charged for their alleged role of facilitating/abetting the main offence and as per prosecution evidence they were only shown present on the spot allegedly duly equipped with pistols, without attributing any other untoward act, therefore, in view of their distinct and different role they have righty been extended the benefit of doubt by the learned trial Court through the impugned judgment, which is neither perverse nor arbitrary nor whimsical. Same was the case with the connected criminal revision bearing No. 08-M of 2024 for enhancement filed by the petitioner-complainant, which is also dismissed having become infructuous.
17. These are reasons for our short order of even date.