' EJAZ AFZAL KHAN, J.--- The prosecution story is that the complainant Zaman Khan, on the eventful day, set out to his house in the company of one Dilawar after saying prayer in village mosque. The appellant Redi Gul and absconding co-accused Hazrat Ali, Zaifoor and Usman Zeb were going ahead of them. In the meantime when the deceased Anwar Said son of the complainant appeared on a path near village Abadi he was fired at by the appellant and the absconding co-accused and was thus, done to death. The complainant and the said Dilawar were also fired at but they had a hair breath escape. The incident was reported and consequent thereupon a case against the appellant and the absconding co-accused was registered under section 302/34, P.P.C. Vide F.I.R.
No,505, dated 21-9-1994 in the Police Station Lahor at Swabi. The motive for the incident was an altercation between the children of the parties culminating in a quarrel amongst their female-folk and then security proceedings under sections 107/151, Cr.P.C. The appellant was arrested on 30-12- 1994 whereas the remaining co-accused became fugitive from law.
2. On the completion of the investigation, the case of the appellant was forwarded to the Court of the learned Additional Sessions Judge for trial.
3. On being charged when the appellant pleaded not guilty, the prosecution examined as many as 8 witnesses to prove the case against the appellant.
4. Since Zaifoor, Hazrat Ali and Usman Zeb were still absconding, Aman Sher, A.S.-I. Was examined as S.W.1 and thereafter the Court ordered to proceed against them under section 512, Cr.P.C. P.W.1 Tariq F.C. Escorted the dead body of the deceased to the mortuary. P.W.2 Habibur Rehman Head Constable testified to the correctness of the recovery memos. Exh.P.W.2/1 and Exh.P.W.2/2, as a marginal witness thereto, whereby blood-stained garments of the deceased and a bottle containing pellet of .12 bore brought by Tariq F.C. From the Hospital were taken into possession by the Investigating Officer. P.W.3 Muhammad Ali son of Said Manan identified the dead body of the deceased at the time of the post-mortem examination. P.W.4 Iftikhar F.C. Was entrusted with the execution of the search warrants who searched the absconding co-accused in their respective villages and in the adjoining hamlets but on failing to track them down returned the warrants Exh.P.W.4/1 to Exh.P.W.4/4 unserved with a report on the back thereof. This witness was also entrusted with the notices of proclamation Exh.P.W.4/5 to Exh.P.W.4/8 which he returned alongwith his report thereon. P.W.5 Dr. Amjad Kaka Khel, Medical Officer, R.H.C.
' Kunda on 21-9-1994 at 8 a.m. Performed the post-mortem examination on the dead body of the deceased and found the following:-- External appearance ' Normal belt with early stage of P.M. Staining and rigor mortis.
(1) A.F.A. Entry wounds two in number each sizing 2" x 2" incised 1" apart on front of chest wall 4" above the right nipple. No burning and no charring noted.
(2) F.A. Exit wound 4 in number, each 1" x 2" in size on the left side of the neck.
Internal examination ' Caranium and spinal cord dorsal spine injured.
' Thorax: Walls, ribs, cartilages, pleasure, lamyx and trachea, both lungs and blood vessels are injured.
' Abdomen All healthy.
Remarks In his opinion the deceased sustained fire-arm injury to both lungs and great blood vessels of thorax, leading to haemorrhage, shock and death. He handed over shirt, Banyan and a pellet of 50 grains in a sealed bottle with post-mortem report to Tariq F.C.
' Probable time between injury and death, according to his opinion was instantaneous and between death and post-mortem examination was one to two hours. He testified the post-mortem report as Exh.P.W.5/1 Pictorial Exh.P.W.5/2, endorsement on inquest report Exh.P.W.5/3 and on injury sheet Exh.P.W.5/4.
' P.W.6 Zaman Khan furnished the ocular account of the incident as mentioned above and testified to the correctness of his report Exh.P.A. He also accompanied the Investigating Officer to the spot who prepared site plan at his instance. He testified'to the correctness of Exh.P.C. And Exh.P.C./1 as marginal witness whereby an empty of .12 bore and blood-stained earth from the spot were taken into possession by the Investigating Officer. P.W.7, Subz Ali, A.S.-I. Deposed that on receipt of information about the presence of the appellant in Bazar Yar Hussain, he arrested him on 30-12- 1994 at 15-00 hours and later on handed him over to the local police of the Police Station Lahor.
P.W.8 Samar Ali Khan stated to have registered the case against the appellant and the absconding co-accused vide F.I.R. Exh.P.A. On the report of the complainant, prepared injury-sheet Exh.P.W.5/4, inquest report Exh.P.W.5/3 and sent the dead body of the deceased to the hospital for post- mortem examination. On reaching the spot he prepared the site plan Exh.P.W.8/1 at the instance of the complainant. He prepared, recovery memo. Exh.P.C. And Exh.P.C./1 whereby he took into possession one empty of .12 bore and blood-stained earth. He also received blood-stained garments and pellet sent by the doctor from the hospital and prepared recovery memo. In this behalf which are Exh.P.W.2/1 and Exh.P.W.2/2 respectively.
5. On the close of the prosecution evidence, statement of the appellant under section 342, Cr.P.C.
Was recorded wherein he pleaded innocence and denied his involvement in the commission of the crime.
6. On conclusion of the trial the learned Additional Sessions Judge sentenced the appellant to undergo life imprisonment as Ta'zir under section 302(b), P.P.C. And to pay an amount to the tune of Rs,30,000 as compensation to the legal heirs under section 544-A, Cr.P.C.
7. On being aggrieved by the judgment and order of the learned Additional Sessions Judge, Swabi, the appellant assailed his conviction by filing an appeal in this Court.
8. The learned counsel appearing on behalf of the appellant contended that the incident on the face of it seems to be blind and unwitnessed as ocular account furnished by the complainant is in conflict with the medical evidence; that the ocular account furnished in the Court is full of dishonest additions and improvements as according to the F.I.R., complainant and Dilawar were coming out of the Hujra but according to the statement made in the Court they were coming out bf the village mosque after saying prayer; according to the F.I.R., the motive for the incident between the parties was a quarrel between the women-folk but according to the deposition made in the Court, it was an altercation between the children and ineffective firing having been made at the deceased. He next contended that the witness who could have given an unbiased account of the occurrence has been abandoned by the prosecution and. That absconsion, if any, is not because of the involvement of the appellant in the crime but on account of fear of unjustified harassment and victimization at the hands of the police. He by concluding his arguments, submitted that the prosecution has failed to bring guilt home to the appellant beyond any shadow of reasonable doubt.
9. On the other hand, the learned counsel for the State contended that the prosecution has established its case against the appellant beyond any shadow of reasonable doubt as the appellant has been directly charged in a promptly lodged F.I.R. And that prosecution version is by no means in conflict with the medical evidence. Besides this, he contended, that absconsion of the appellant would lend added strength to the prosecution version which clearly connects the appellant with the commission of the crime.
10. We have carefully analysed the submissions made by the learned counsel for the parties and perused the record with their able assistance. The only witness furnishing ocular account of the occurrence is P.W. Zaman Khan who is father of the deceased. Another witness namely Dilawar who is though mentioned in the F.I.R. To have witnessed the occurrence has not been examined by the prosecution. Now it is to be seen whether P.W. Zaman has in fact seen the incident? Whether the ocular account furnished by him rings true, fits in with the surrounding circumstances and is capable of happening in the manner as described by the prosecution. When we examine the statement of the P.W. In this perspective we noticed that many things have been told by the witnesses which do not ring true, fit in with the surrounding circumstances and conform to common human experience and observation. For instance he stated that all the assailants fired at the deceased with their respective weapons but the number and dimension of the entry wounds, the number and dimension of the exit wounds on the person of the deceased as shown in the post-mortem report and the pellet extracted therefrom would irresistibly lead to the conclusion that the same were caused by a single shot from a shot-gun. In case there were more than one assailant the line of fire, inasmuch as, it can be determined from the places of the assailants, entry and exit wounds, would have been different because slightest change in angle of fire always invariably diverts the line of fire. Even otherwise it is highly improbable that more than one person participated in the commission of the crime and they all selected the same place for firing at the deceased. Thus, it can safely be held that the ocular account furnished by the P.W. Is in direct conflict with the medical evidence. It, therefore, follows that the occurrence was not in fact witnessed by the P.W. Zaman Khan.
11. The statement of the complainant that the deceased and the P.Ws. Were fired at by the assailants and that only the deceased was hit and shots on the complainant and Dilawar abandoned P.W. Proved ineffective is obviously an outright lie and wholly unnatural, moreso, when in view of the distance shown in the site plan, they were standing well within the range of the assailants. Even if, for a while, we stretch long the arm of co-incidence to hold that the P.W. Was present at the scene of occurrence alongwith another person and had had a miraculous escape, in that event, we would be constrained to hold that the number of assailants was designedly swollen out of huff and enragement by the angry father of the deceased so as to rope in the person who has no involvement in the commission of the crime. In either of the eventualities, whether the incident was blind or the net of implication was thrown too widely, the rule of prudence which has hardened into a rule of law requires strong corroboration which is woefully lacking in this case.
12. There is no denying the fact that solitary witness if his testimony is intrinsically true can be relied upon and can form basis for conviction regardless altogether of this being related to the deceased but where the version set forth in the F.I.R. Has been changed beyond recongition by making dishonest additions, omissions and improvements as pointed out by the learned counsel for the appellant, in that event reliance on the testimony of the solitary witness is extremely dangerous in the offences involving capital punishment particularly when Dilawar who could hopefully give independent and unbiased account of the occurrence has not been examined by the prosecution.
13. The next argument of the learned counsel for the appellant that absconsion, if any, was not because of the involvement of the appellant in the crime but, in fact, was on account of fear of unjustified harassm ent and victimization at the hands of the police is not without substance because even innocent persons, more than not, flee out of fear in order to void harassment and victimization at the hands of the police.
14. The arguments advanced by the learned Additional Advocate-General, in the facts and circumstances of the case and in the light of the foregoing discussion cannot stay valid and viable, more so when he could not advert to anything on the record as could enable the Court to determine with any amount of certainty that it was the appellant who was responsible for causing this fire-arm injury.
15. As a sequel to what has been discussed above, we hold that the case against the appellant has not been proved beyond any shadow of reasonable doubt. We, therefore, accept his appeal, set aside the judgment and order of the learned Additional Sessions Judge and direct the appellant to be released forthwith if not required in any other case.