' IJAZ-UL-HASSAN, J.--- The instant Criminal Appeal No,23. Of 1995 has been filed by the State through Advocate-General, N.-W.F.P. Under section 417(1), Cr.P.C. Against the order of acquittal passed by the learned Sessions Judge, Mansehra vide judgment, dated 30-10-1994 whereby Tawab son of Hayatullah and Umar Zeb son of Dilawar, both residents of Eidgah Baffa, Mansehra, charged under section 302/34, P.P.C. For murder of their co-villager Mashal son of Khoidad (34/35), were acquitted.
2. The crime in question having taken place on 17-11-1992 at 16-45 hours on the lands of complainant Khushal within the presincts of Police Station Baffa, the matter was reported to the police the same day at 19-15 hours by Khushal complainant brother of the deceased.
3. The case of the prosecution in brief is, that on the fateful day at Digar Qaza Vela Mashal deceased after closing his flour machine was on his way towards his house and complainant Khushal was standing on the roof of his house. When the victim reached near the house of Tawab accused, the accused emerged from the nearby lane and attacked the deceased with an axe. The deceased started running towards his fields to save his life. Tawab accused gave axe blows to deceased on his neck, head and belley as a result of which the deceased fell down on the ground and became unconscious. The occurrence was stated to have been witnessed by the complainant, Mst. Balo, sister of the complainant, Taj Muhammad son of Sultan and many other inhabitants of the locality. A dispute over property between the accused Tawab and deceased Mashal, was stated to be a motive leading to the unfortunate tragedy.
4. The matter, as stated above, was reported to the police by complainant Khushal, brother of deceased. The report was recorded by P.W. Javed Iqbal S.H.O., Police Station Baffa. After recording the report, the S.H.O. Prepared injury sheet Exh.P.F. And inquest report Exh.P.G. Of the deceased and dispatched the dead body to Civil Hospital Baffa for post-mortem examination under the control of F.C. Muhammad Sabir. As darkness had prevailed, the S.H.O. Reached the spot on the following day of the incident and prepared site plan Exh.P.B. At the pointation of eye-witnesses. During spot inspection he took into possession blood-stained earth Exh.P.1. And Exh.P.2 from two different points and blood-stained clothes of deceased Exh.P.3 vide recovery memo. Exh.P.C. He conducted house search of accused Tawab and recovered an axe vide recovery memo. Exh.P.D. The S.H.O. Also conducted house search of Umar Zeb co-accused and took into possession an axe Exh.P.4, the handle of which was stained with blood vide recovery memo. Exh.P.E. He arrested the accused, sent the blood-stained articles for Chemical Examination and placed on record report (Exh.P.J.) of Chemical Examiner. He produced Tawab accused before the Magistrate for recording his confessional statement vide application Exh.P.K. Tawab accused in his confessional statement implicated Umar Zeb co-accused as one of the accused person. After completion of the investigation in the manner described above, complete challan was submitted against the accused.
5. Dr. Khurshid Anwar P.W.5 on 18-11-1992 at about 7 a.m. Subjected the dead body of Mashal deceased to post-mortem examination and found the following on external examination:- ' Injuries
(1) Incised wound 3" x 2" x bone deep on left side of neck.
(2) Incised wound 1" x 1/2" x bone deep on frontal region of the skull in the middle.
(3) Incised wound 6-1/2" x 3/4" x muscle deep at the middle of abdomen.
(4) Lacerated wound 1" x 1/2" x muscle deep at left fore-arm at the middle lying latero posteriorly.
' Internal examination ' Skull. Frontal bone fractured. Scalp injured. 3rd and 4th cervical vertebrae fractured. Dura matter was congested. Spinal cord was injured at the site of neck wound.
' Abdomen. Walls injured at the middle of the abdomen. Small intestines contained gases and little faecal matter and so was the large intestine. Stomach was empty.
' In the opinion of the doctor the death occurred as a result of heavy cutting weapon injuries to main vessels of the neck and head injury resulting in shock and haemorrhage.
' Probable time between injury and death was about half an hour and between death and post- mortem examination was about 14 hours.
6. At the commencement of the trial the learned Sessions Judge framed a charge under section 302/34, P.P.C. Against the accusedrespondent to which they pleaded not guilty and claimed trial.
7. During the trial the prosecution examined as many as 11 witnesses. Khushal P.W.7 and Taj Muhammad P.W.8 furnished eyewitness account of the incident and also stated about the motive.
Dr. Khurshid Anwar P.W.5 provided the medical evidence. Muhammad Akbar Khan Marwat M.I.C.
Mansehra P.W.4 stated that accused Tawab was produced in his Court on 26-11-1992 and he recorded his confessional statement after observing all the legal formalities. The remaining are formal witnesses.
8. In their statements recorded under section 342, Cr.P.C. The accused-respondents denied and controverted all the allegations of fact levelled against them by the prosecution and professed their innocence. They also denied having pointed out axe to the Investigating Officer. They led no evidence in defence and declined to be examined on oath.
9. At the conclusion of the trial the learned Sessions Judge, Mansehra, while extending benefit of doubt acquitted the accused-respondents, as noted above, with the observation:-- "The above contradictions in the statements of alleged eyewitnesses P.W.7 and P.W.8 are so irreconcilable that the Court is forced to conclude that they are not truthful witnesses and probably they had not seen the occurrence. The Court agrees that they are not interested witnesses in the term that they have no mentionable animosity with the accused sufficient to raise a false charge against him but this is also not the law that the statements of uninterested witnesses shall be believed and relied upon ignoring the material contradictions enough to doubt their presence on the spot and truthfulness."
10. We have heard at length Mr. Muhammad Ayub, Assistant Advocate-General for the State assisted by Mr. Abdullah Jan Mirza, Advocate for the complainant and Mr. Ghulam Mustafa Swati, Advocate for the respondents. We have also gone through the entire evidence with the able assistance of learned counsel for the parties.
11. It is submitted by learned Assistant Advocate-General for the State that the crime in question took place near the houses of complainant Khushal and Taj Muhammad P.Ws. At broad daylight who have no previous enmity with the respondents and as such the learned trial Judge had no justifiable reason to disbelieve the eye-witness account furnished by them in a straightforward manner. Additionally it is urged that medical evidence, confessional statement of Tawab, evidence on the point of motive supplied by Abdur Rashid P.W. And recovery of axe, fully connect the respondents with the murder of Mashal deceased and these material pieces of evidence have been ignored by the learned trial Judge without any good reason which has resulted in grave miscarriage of justice. To augment the pleas, reliance was placed on Muhammad Ahmad and another v. The State and others 1997 SCM R 89 and Qabool and another v. The State PLD 1982 SC 224.
12. Conversely, it is submitted by learned counsel for the respondents that the prosecution case has been found pregnant with serious infirmities and contradictions coupled with unexplained delay in lodging of the F.I.R. The learned trial Judge was quite justified to discard ocular testimony furnished by P.Ws. Khushal and Taj Muhammad and exclude from consideration the confessional statement attributed to Tawab accused, medical evidence and evidence on the point of motive and recoveries. He relied on State through Advocate-General, N.-W.F.P. Peshawar v. Ali Rehman 1991 SCM R 1685 and Ameer v. Rab Nawaz and others 1990 SCM R 218.
13. The important question falling for determination in this case would be, whether Mashal deceased was axed to death by Tawab accused-respondent with the help of co-accused respondent Umar Zeb?
14. In order to prove its case, the prosecution has produced P.Ws. Khushal and Taj Muhammad in addition to medical evidence, motive, recoveries and confessional statement of Tawab accused- respondent. After considering the submission of learned counsel for the parties and going through the evidence on record we find ourselves in agreement with learned counsel for the respondents that the case of the prosecution is doubtful in nature and the evidence available on record is in no way sufficient to lead to a conclusion that the respondents are the authors of the crime and they have taken away the life of the deceased. The requirement of the criminal law is that the prosecution is duty-bound to prove its case beyond any reasonable doubt and if any single and slightes doubt is created, it must go to the accused and is sufficient to discredit the prosecution story and entitles the accused for acquittal.
15. In the instant case, in the final analysis of evidence we are of considered view that prosecution has failed to prove the case against respondents beyond doubt. Ocular evidence of two witnesses does not inspire confidence and it is doubtful whether they had seen the incident. No doubt unfortunate incidence has taken place in which Mashal lost his life but not in the manner asserted by the prosecution. There is again no corroborative evidence to supplement ocular evidence.
Prosecution can seek support from motive, medical evidence, recoveries and confessional statement of Tawab, but each piece of evidence (sic) defective and failing in intrinsic value hence not fit for reliance to corroborate ocular version, which is itself defective. It is settled principle of law that one piece of tainted evidence cannot corroborate another piece of tainted evidence. The learned trial Judge has given valid and cogent reasons for extending benefit of doubt to accused- respondents and the finding of acquittal is unexceptional and hardly calls for any interference of this Court.
16. Resultantly, finding no force in this appeal, we dismiss the same.
17. By our short order, dated 2-5-2001 we had dismissed the appeal and above are the detailed reasons for the same.