' JAWAID NAWAZ ,KHAN GANDAPUR, J.---The respondent, acquitted accused, Habib son of Fazal Rehman, resident of Village Mathani, -District Peshawar was tried by Additional Sessions Judge-III, Peshawar for having killed Shashti Gul and for having ineffectively fired upon his father, the complainant, Shahzad Gul (P.W.6) and brother Asti Gul (P.W.7) with a pistol on 21-4-1993 at morning time while they were proceeding towards their fields. Accordingly the respondent was charged for having committed offences publishable under section 302/324, P.P.C. After the conclusion of the trial the Additional Sessions Judge-III, Peshawar, by his judgment dated 22-2-1995, acquitted the respondent-accused.
2. Not contented with the order of acquittal the State has filed the present appeal.
3. Stated briefly, the prosecution story, as disclosed at the trial, is that on 21-4-1993 at morning time the deceased, Shashti Gul, alongwith complainant Shahzad Gul (P.W.6) and Asli Gul (P.W.7) was going towards his fields and when they reached near the Hujra of one Moosa Khan, they found the respondent sitting on the way duly armed with a pistol. As soon as they reached near the respondent, he, allegedly fired two shots at them. Shahzad Gul complainant (P.W.6) and Asli Gul (P.W.7) escaped unhurt while the deceased Shashti Gul was hit and injured. The deceased Shashti Gul was immediately removed to the hospital for medical treatment but he expired at the hospital because of his injury.
4. The complainant, Shahzad Gul (P.W.6), rushed to the Police Station and reported the matter to Sub-Inspector Muhammad Khan (P.W.8). Accordingly F.I.R. (Exh.P.A) was registered which was duly read over to the complainant and after admitting its contents to be correct the complainant thumb-impressed the same. Sub-Inspector Muhammad Khan (P.W.8) deputed A.S.I. Shaz Ali (P.W.3) to go to the Lady Reading Hospital, Peshawar and to prepare the injury sheet and inquest report of the deceased. The needful was done by the said A.S.I. Who after examining the dead body of the deceased prepared the injury sheet (Exh.P.D) and the inquest report (Exh.P.D/1) respectively and handed over the dead body to FC Rab Nawaz Khan (P.W.1) for post-mortem examination.
5. On the other hand, Sub-Inspector Muhammad Khan (P.W-8) went to inspect the spot were the occurrence allegedly took place. From the spot he recovered blood-stained earth (Exh.Pl) and took the same into his possession vide recovery memo. (Exh.PC). The same was sealed in a parcel vide memo. (Exh.P.C/1). The site plan (Exh.PB) was prepared by the said Sub-Inspacter at the instance of the eye-witnesses. The I.O. Also took into his possession the blood-stained clothes of the deceased consisting of (1) shirt (Exh.P.2), (2) Shalwar (Exh.P.3) and (3) Bunyan (Exh.P.4) when the same were produced before him by FC.864 Rab Nawaz (P.W.5).
6. After the completion of the investigation the local police (S.H.O. Hilal Haider P.W.2) submitted a charge-sheet under section 302/324, P.P.C. To the Court concerned for trial.
7. At the trial the accused pleaded not guilty, professed his innocence and refuted the prosecution allegations. He further contended that he was falsely implicated in the case without any rhym or reason, with ulterior motive.
8. In order to prove its case against the respondent-acquitted accused the prosecution produced as many as 9 witnesses, most of them mentioned above, at the trial. It may be mentioned here that the fate of the prosecution case, in the main, hinges upon the ocular testimony of complainant Shahzad Gul (P.W.6) and Asli Gul (P.W.7) because both of them claim to be present at the scene of occurrence on the fateful day time. Since the eye-witness account has been furnished by complainant Shahzad Gul (P.W.6), the father of the deceased and Asli Gul (P.W.7) the real brother of the deceased, therefore, in the circumstances, their evidence requires to be subjected to close and critical examination/scrutiny.
9. Complainant Shahzad Gul (P.W.6) while reporting the matter at the Police Station stated, in his report, that he alongwith his sons namely Shashti Gui (deceased) and Ali Gul (P.W.7) was going towards*is fields and when they reached near the Hujra of one Moosa Khan they saw the respondent standing on the way duly armed with pistol, that the respondent fired two shots at them as a result of which Shashti Gul deceased got injured while he and his other son Asli Gul (P.W.7) escaped unhurt. He further stated that the deceased, then injured, was immediately removed to the hospital for medical treatment but on reaching the hospital he succumbed to his injuries and died.
10. It may be noted that when he was examined in the Court of P.W.6 he gave a different version of the occurrence and stated that the respondent was standing near the Hujra of one Moosa Khan, duly armed with a pistol, and fired two shots at them. With one of the shot the deceased was hit and killed whereas the other shot proved ineffective. He also introduced the motive for the occurrence, for the first time, and stated that it was about two months prior to the occurrence that an altercation had taken place between the respondent and the deceased. It appears to us that the complainant (Shahzad Gul) had made theses improvements in his Court statement, to bring in line his version with the medical evidence because the doctor (P.W.9), who had conducted the autopsy, had found that there was only one entrance wound on the person of the deceased. Beside this, according to the complainant, the respondent fired at the deceased from a ,distance of about 4 paces. This statement of fact is contradicted by the medical evidence because the doctor had found "charring marks" on the person of the deceased which would naturally moan that the deceased was fired upon, with a pistol, from a distance of about 6" to 8".. The ocular account given by the complainant (P.W.6) is'thus totally belied by the medical evidence.
11. The other eye-witness, Ash Gul (P.W.7) is the real brother of the deceased. While, in the witness- box he deposed, on oath, that the respondent had only fired at the deceased and that he did not fire at him or his father the complainant. This categorical statement negates the very version given by the complainant (P.W.6) who, while registering the F.I.R. (Exh.P.A), had alleged that the respondent had also fired at him as well as Asli Gul (P.W.7).
12. Last but not the least, Asli Gul (P.W.7) deposed before the trial Court that the deceased was, in the first instance, removed to the police station and thereafter was taken to the hospital. He further stated that no report, whatsoever, was lodged by the complainant (P.W.6) at the Police Station. If this deposition of the brother of the deceased is taken to be correct then in that case the cdmplainant (P.W.6) stands contradicted by his own 'son, as the complainant had stated that the F.I.R. Was lodged in the Police Station. The contents of the F.I.R. Would show that the report was lodged by the complainant (P.W.6) in the Police Station. Accordingly, in the circumstances, we are of the considered view that one of the two eye-witnesses is telling a lie for reasons best known to him.
13. Next, Asli Gul (P.W.7) has also contradicted the Investigating Officer (P.W.8) because according to him he was examined by the I.O., Muhammad Khan (P.W.8) at the spot at about 8-00 a.m.
Whereas, on the other hand, the I.O., when examined during the course of trial, categorically stated that he had proceeded to the spot at about 10-30 a.m. From the Police Station.
14. We have noted that both the eye-witnesses have not only contradicted each other, on material points, but have also contradicted /the medical evidence. This conflict/contradiction between the medical evidence and the ocular testimony being irreconcilable has shattered the veracity of the ocular testimony which has become highly doubtful and is accordingly discarded.
15. Apart from the above, the record of the case, which is before us shows, that the I.O., who is an independent and disinterested person having no relationship either with the accused party or any enmity with the complainant party, had prepared the site plan (Exh.P.B) at the instance of complainant Shahzad Gul (P.W.6). In the site plan point No,5 has been shown near the Hujra of "Moosa Khan" where, according to the complainant, they were fired upon by the accused. The site plan .(Exh.PB), however, shows the presence of complainant Shahzad Gul (P.W.6), Asli Gul (P.W.7) and Shashti Gul (deceased) at points Nos.1, 2, and 3, respectively, when the occurrence took place.
Whereas, according to the said site plan, the respondent-accused has been shown to be present at point No,4. It may be mentioned that the distance between point No,1 and point No,5, the Hujra of Moosa Khan, where the deceased/complainant P.W.7 were allegedly fired upon, as alleged by the complainant, i4 about 149 paces. In the circumstances even the site plan contradicts not only the ocular testimony of P.W.6 and P.W.7 but also the medical version as discussed above.
15. Even the motive alleged in the statement of the complainant is too hazy and far-fetched. It could not, in our view, have prompted the respondent-accused to kill the deceased after he had some altercation with him. The details of which have not been disclosed in clear terms by the complainant, two months prior to the occurrence. Accordingly the story of motive given by the complainant is more of a fiction than reality and can hardly inspire confidence. Needless to mention that when the complainant lodged the F.I.R. He had not uttered a single word about the motive. In the circumstances we cannot avoid the conclusion that the motive, as alleged, was an afterthought and has not been proved by any credible evidence. .16. It will not be out of place to mention here that it is now well-settled that where, in acquitting an accused, the trial Court has not violated. Any rule of law and has not ignored any material fact, while appreciating the evidence on record, its inference did not suffer frort any legal or factual infirmity and that he has correctly commented on the credibility of the witnesses and has evaluated the circumstantial evidence, in detail, then in that case there is no justification for us to interfere with the order of acquittal even if a different view could be taken, though it is not so possible in this case. The fact remains that it is for the prosecution to prove its case against the accused beyond a shadow of reasonable doubt and that the prosecution cannot take benefit from the weakness of the defence plea.
17. Accordingly we are of the considered opinion that the prosecution in the present case has miserably failed to establish its case beyond reasonable doubt and that, therefore, the respondent-accused was rightly acquitted by the trial Court. The State appeal does not merit consideration and is dismissed in limine .