' FAZAL-UR-REHMAN, J.--- This criminal appeal has been directed against the judgment, dated 29- 1-2001 passed by learned Sessions Judge/Special Judge, Nasirabad at Dera Murad Jamali by which he convicted the appellant Abdul Waheed son of Ghulam Hussain by caste Abro under section 302-C, P.P.C. And sentenced to suffer imprisonment for 10 years. He was also directed to pay Rs,30,000 compensation to legal heirs of the deceased and in default of payment of amount of compensation, the accused/appellant was ordered to suffer S.I. For 2 years. He was also given the benefit of section 382(b), Cr.P.C.
2. The occurrence is stated to have taken place on 9-10-2000 at about 5-00 p.m. In Goth Mughim Khan Rind, Tehsil Thumbo.
3. The report of the occurrence was made by complainant Mughim Khan son of Haibat Khan caste Rind vide Exh.P./2-A and as many as three persons were nominated in the F.I.R. It is stated that the appellant alongwith acquitted accused Abdul Jalil and Abdul Hameed came at the spot. It was alleged that the appellant was armed with kalashnikov, acquitted accused Abdul Jalil was armed with shotgun while acquitted accused Abdul Hameed was empty-handed. It was stated that altercation took place between deceased Dili Jan and the accused persons over opening of watercourse, as the deceased and witnesses were prohibited from opening the watercourse as alleged. It is alleged that the appellant made firing with kalashnikov which hit deceased on his neck and died at the spot. It is stated that P. Ws. Ahmed and Thara informed about the incident to complainant Mughin Khan who went to Levies Thana Thumbo and lodged F.I.R. Being No,109 of 2000 under section 302/34, P.P.C. At 10-00 p.m.
4. P.W.6 Ali Gohar, Naib-Tehsildar after recording F.I.R. Exh.P/2-A took the investigation in hand. He went to the place of occurrence where the site plan was prepared vide Exh.P/6-A. He prepared statement of injuries vide Exh.P/5-A, secured blood-stained earth vide Exh.P./5-B, secured four empties of kalashnikov and three of shotgun vide Exh.P/5-C to which P.W.5 Shehbaz Rind, Levies Sawar of Levies Thana. Thumbo and Abdul Nabi Magsi, Levies Sawar (not examined) stood marginal witnesses of these recovery memos. The appellant and acquitted accused persons are stated to have been arrested from their houses. It is stated that recovery of kalashnikov was effected from the appellant and taken into possession vide Exh.P:/5-E to which the above-named levies personnel stood marginal witnesses. It is stated that one shotgun was recovered from acquitted accused Abdul Jalil and taken into possession vide Exh.P./5-F. It is stated that kalashnikov and shotgun were lying on a cot wherefrom these were taken by accused/appellant Abdul Waheed and acquitted accused Abdul Jalil and handed over the same to Tehsildar. It is stated that the appellant and acquitted accused did not produce any licence or permit and accordingly separate cases under section 13-E of the Arms Ordinance were registered against them. It is stated that during investigation blood-stained clothes of the deceased were taken into possession vide recovery memo. Exh.P.D. According to marginal witness Shehbaz Khan, these clothes were taken into possession from place of occurrence while according to Seizing Officer; the same were collected later on from hospital.
5. After usual investigation, the appellant and his co-accused were sent to face their trial.
6. On 8-11-2000, the charge under section 302/34, P.P.C. Was framed against the appellant and acquitted accused persons by the trial Court to which they pleaded not guilty.
7. In support of its case, the prosecution examined P.W.1 Dr. Mehmood Khan, Medical Officer, B.H.U.
Manjhu Shori, P.W.2 Mughim son of Haibat Khan (complainant), P.W.3 Ahmed, P.W.4 Thara, P.W.5 Shehbaz Khan, Levies Sawar and P.W.6 Ali Gohar, NaibTehsildar/Investigating Officer.
8. In their statements recorded under section 342, Cr.P.C. The appellant and acquitted accused have disputed the case of the prosecution and pleaded their innocence. When asked as to why the prosecution witnesses deposed against them to which the accused persons replied to the trial Court that P.Ws. Have deposed falsely. According to appellant no recovery of kalashnikov was effected, he has, however, added that he was present in his house wherefrom they were arrested.
The appellant has also made his statement on oath as per provisions contained under section 340(2), Cr.P.C. According to him there existed a dispute over land between complainant and their landlord on account of which he alongwith his two brothers have falsely been involved. He has, however, pleaded his innocence.
9. On the basis of evidence, the learned trial Court formulated the following points for determination:--
(1) As to whether deceased Dili Jan died unnatural death?
(2) As to whether accused facing trial committed murder of deceased Dili Jan or otherwise?
(3) What offence if any has been committed by accused?
10. Point No,1 was settled in affirmative. It is, however, pertinent to note that P.W.1 Dr. Mehmood Khan who is stated to have examined the deceased has stated that he examined the dead body on 10- 2-2000 whereas, the occurrence took place on 9-10-2000 at 5-00 p.m. And the report was lodged at 10-00 p.m. It is further pointed out that according to Medico-Legal Certificate Exh.P/1-A, the date, time and place of examination have been indicated 10-9-2000 at about 8-00 p.m. In the B.H.U.
Manjhu Shori. The medical evidence may confirm the ocular evidence with regard to seat of the injury, nature of injury, kind of weapon used in the occurrence, duration etc. But it would not connect the accused with the commission of crime. The deposition of P.W.1 and the medical certificate which he had produced and conflict between the ocular evidence and medical evidence creates doubt. The learned trial Court did not believe the evidence of prosecution witnesses P.Ws. Ahmed and Thara for the reasons that they were not out of the influence of the complainant being his cultivators, doubtful identification of the accused persons in the Court and observed this attitude of the witness indicates that at least he was not well-aware of the accused or either he has not remained present at the time of incident and has deposed at the instance of his landlord". The statement of P.W.4 Thara was also found to be in conflict with medical evidence.
Learned trial Court has further observed that "leaving the statements of eye-witnesses there is no any other material evidence which corroborates their evidence except the statement of Investigating Officer and the learned trial Court has considered the statement of Investigating Officer reliable than the other evidence which has come on record". The learned trial Court has also observed that P.W. Shehbaz Khan, Levies Sawar has pointed out accused Abdul Hameed by stating that kalashnikov was recovered from his possession. The trial Court has also expressed himself in the following words:-- "Anyhow in the light of above, I am of the view that one cannot, with certainty, believe that offence had committed in the manner as has been narrated by the eye-witnesses. Prima facie, circumstances show that deceased Dili Jan had come from his village to the village of the accused i,e, house of the accused and according to the showing of the eye-witness, he tried to convert the watercourse of his lands, in front of the house of the accused, not more than 10 paces away. Now question, as to whether deceased having had a right to take the water from that place and as to whether it was his turn to convert or take away the water, moreover whether deceased from where breaking the watercourse and taking the water same was just opening in the front of the house of the accused or otherwise, because it is admitted fact that the dead body of the deceased was lying 10 paces away in front of the house of accused."
"Again, the both eye-witnesses, categorically have mentioned in their statements that deceased and accused had exchanged harsh words and whereupon accused Abdul Waheed became provoked and fired at Dili Jan. So, all these things or circumstances, raising so many questions, which at least could not be solved at the sayings of above two, influenced tender age cultivators aged about 18 and 19 years. Thus, one can safely deduce from whole evidence that Abdul Waheed was the person who fired at deceased and due to his fires deceased expired. Moreover, record indicates that incident was the result of sudden provocation."
' The learned trial Judge has further observed that:-- "I have hereinabove mentioned that the real circumstance is not clear for the murder of deceased and furthermore one cannot outrightly accept the statement of the both influenced eyewitnesses, therefore, one also cannot determine with certainty that under what circumstances death of the deceased Dili Jan was occurred by the hand of a tender age boy i,e, Abdul Waheed."
11. According to trial Court there was exchange of harsh words between the accused persons and the deceased at the time of occurrence and the same was considered to be mitigating circumstance for awarding lesser punishment. The learned Sessions Judge found the appellant guilty for the offence under section 302-C, and convicted and sentenced him in the manner mentioned hereinabove. Co-accused Abdul Jalil and Abdul Hameed were acquitted as according to the trial Court they did not take active part in the commission of offence and no effective role has been attributed to them. The instant appeal has been preferred by the appellant under section 410, Cr.P.C.
12. We have heard Miss tram Mehmood, Advocate learned counsel for appellant and Haji Ghulam Mustafa Mengal, learned Assistant Advocate-General for State.
13. The main contentions put forth on behalf of the appellant are as under:--
(1) The impugned judgment is contrary to facts, law and equity.
(2) The prosecution has miserably failed to prove its case beyond any shadow of doubt.
(3) Both eye-witnesses did not identify the appellant in the Court; there is conflict between ocular evidence and medical evidence.
(4) The evidence of eye-witnesses was not worthy of reliance being interested witnesses who have also made improvements in their statements.
(5) The trial Court has also failed to appreciate the medical certificate which totally belies the prosecution case. There was delay in lodging of the F.I.R. Without explanation.
(6) The trial Court did not believe the evidence of P.Ws.3 and 4, the alleged eye-witnesses and relied only on the statement of Investigating Officer which by no stretch of imagination establishes any case against the appellant and has ignored all principles relating to criminal administration of justice. The recovery of crime weapon in absence of the report of Ballistic Expert and non-sending of the empties and aims to the Ballistic Expert make the prosecution case doubtful.
(7) The trial Court has failed to consider the defence plea of appellant.
' Learned counsel in support of her contentions has relied upon the authorities reported in 2001 SCMR 56, 1999 MLD 1995(b), 1993 SCMR 417(b), PLD 2001 Pesh. 27, 1985 SCMR 95, 2001 SCMR 624, 1999 SCMR 1220 (b)(c), 2001 SCMR 424(b)(q)(r)(v)(y), 1995 SCMR 1627, 1998 SCMR 278, 2001 PCr.LJ 435 and 1987 SCMR 46.
14. Learned Assistant Advocate-General representing the State has supported the impugned judgment and opposed the acceptance of appeal.
15. After hearing the learned counsel for the parties and having gone through the relevant record we are of the view that the case of the prosecution is doubtful in nature. The evidence available on record is in no way sufficient to lead to a conclusion that the accused/appellant can be convicted of the offence alleged against him. We are not inclined to subscribe to the conclusion arrived at by the trial Judge. The prosecution witnesses Ahmed and Thara who are stated to be eye-witnesses of the occurrence have already been disbelieved by the learned trial Court for the reasons hereinabove indicated. The evidence of P.W. Mughim who is not an eye-witness and after discarding the evidence of P.Ws. Ahmed and Thara who are stated to have informed him regarding occurrence and in the circumstances of the case cannot be believed for conviction of the accused/appellant on capital charge. It is a cardinal principle of law that the evidence on capital charge must come from unimpeachable source. We also do not concur with the view of learned trial Court that the statement of Investigating Officer is reliable. According to Investigating Officer blood-stained clothes were collected from the hospital whereas, according to P.W. Shehbaz Khan.
The same were taken from the place of occurrence. According to Seizing Officer, the accused persons were arrested from their house. He has also deposed that accused Abdul Waheed presented one kalashnikov at the spot whereas, according to P.W. Shehbaz Khan kalashnikov and shotgun were lying on a cot wherefrom Abdul Waheed and Abdul Jalil after taking the same handed over to Tehsildar. This witness has also stated that after completion of the proceedings, the accused persons were arrested from their house. It is pertinent to note that both Seizing Officer and recovery witness have not properly identified the appellant in the Court as recovery witness pointed out towards Abdul Hameed to be Abdul Waheed regarding recovery of kalashnikov.
Similarly the Seizing Officer was not in position to properly identify the appellant in the Court which fact is evident from his deposition. The Seizing Officer has also stated that the accused persons were residing with their families in their house and admitted that recovery witnesses are levies officials.
16. It is significant to mention that the mandatory provisions of section 103, Cr.P.C. Have not been complied with and no private inhabitant of the area has been associated to witness the recovery and only levies person has been cited as marginal witness to the recovery memo. Besides non- compliance of the mandatory provisions of section 103, Cr.P.C. The recovery of Kalashnikov and shotgun is doubtful for the reason that there is no report of Fire-arm Expert which can indicate that the alleged recovered empties were fired from the seized Kalashnikov and shotgun. In PLI) 1990 Pesh. 6 it has been observed that crime-empties should be immediately dispatched to Arm Expert and should not be kept by Investigating Officer because in that case objection regarding manipulation of recoveries will hold good. In 1976 PCr.LJ 17, it has been observed that crime- empties and gun not sent to Forensic Laboratory for matching firing of crime-empties from gun had not proved. The Honourable Supreme Court of Pakistan in 1995. SCMR 895 has observed that "recovery of gun could not be relied upon same having not been sent for examination of the Fire- arm Expert".
17. We are also not inclined to subscribe to the conclusion arrived at by the trial Judge that the prosecution has established the guilt of accused/appellant. The finding of the trial Court is not based on any valid evidence but is based on surmises and moral conviction of the Judge about the guilt of accused could not form the basis of his conviction. There is also conflict between ocular evidence and medical evidence. No internal post-mortem examination had been carried out by the Medical Officer. The issuance of medical certificate in the case and the medical evidence also put a dent in the prosecution case and creates doubt for the reasons indicated earlier. The trial Court has to juxtapose both conflicting evidence in order to arrive at conclusion as to which one of them is to be chosen for reliance as true. In the instant case no sufficient evidence has come on record which can implicate the present appellant on capital charge beyond any reasonable doubt.
18. As stated earlier there was no sufficient evidence which could have been based for conviction of the appellant in the circumstances of the case. Admittedly complainant is not an eye-witness of the occurrence nor seen the accused persons at or near the place of occurrence although he claims to have heard gun shot reports while he was sitting in his Otaq where he was informed by P.Ws. Ahmed and Thara. The eye-witnesses Ahmed and Thara have already been disbelieved by the trial Court. The recoveries stated to have been effected during the investigation could not be relied upon for the reasons stated hereinabove. The prosecution has failed to establish its case against the present appellant, therefore, he was also entitled to be acquitted of the charge. Abdul Jalil and Abdul Hameed have since been acquitted by the trial Court as the prosecution version was not believed to their extent. Case of accused/appellant was not distinguishable from that of acquitted co-accused persons, and therefore, conviction of accused based on the same and insufficient evidence could not be sustained. The rule of consistency requires that appellant should have similar treatment by allowing him same benefit.
19. The Honourable Supreme Court in a case reported in 1995 SCMR 1345 have made the following observations:-- "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 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."
20. The principles laid down and the observations made by the Honourable Supreme Court in another authority reported in 1999 SCMR 1220 are reproduced below for the sake of facility:-- "It is axiomatic and universally recognized principle of law that conviction must be founded on unimpeachable evidence and certainty of guilt and hence any doubt that arises in the prosecution case must be resolved in favour of the accused. It is, therefore, imperative for the Court to examine and consider all the relevant events preceding and leading to the occurrence so as to arrive at a correct conclusion. Where the evidence examined by the prosecution is found inherently unreliable, improbable and against natural course of human conduct, then the conclusion must be that the prosecution failed to prove guilt beyond reasonable doubt. It would be unsafe to rely on the ocular evidence which has been moulded, changed and improved step by step so as to fit in with the other evidence on record. It is obvious that truth and falsity of the prosecution case can only be judged when the entire evidence and circumstances are scrutinized and examined in its correct perspective. It is unfortunate that neither the trial Court nor the High Court thoroughly studied the record so as to reach correct conclusion, rather they dealt with the matter in a very cursory manner which naturally resulted in miscarriage of justice. As noted above, the eye-witness account in this case is so unreasonable and inherently improbable that no amount of corroboration can rehabilitate it."
' In 2000 SCMR 1308, it has been held that:-- "The intrinsic and probative values of the ocular account stood eroded by its rejection to some extent by the Investigating Agency and to some extent by the trial Court by acquitting the five accused, therefore, it would not be safe to place explicit reliance on this evidence without corroboration from an independent source. The learned Judges in the High Court in the circumstances as explained above were correct in holding that this was the type of the evidence could not be accepted without corroboration in view of its interested nature and the flaws therein as indicted above."
21. Having regard to the abovementioned factors circumstances of the case and following the principles laid down by the Honourable Supreme Court in the cited authorities, we feel inclined to hold that the prosecution has failed to prove its case beyond reasonable doubt against the present appellant and he is entitled to acquittal. We, therefore, allow this appeal, set aside the conviction and sentence of the appellant by extending the benefit of doubt and he is accordingly acquitted of the charge. Charge. The appellant shall be released from the custody in case, he is not wanted in any other case.