' QAZI EHSANULLAH QURESHI, J.--- This appeal is directed against the judgment, dated 18-7-2001 passed by the learned Additional Sessions Judge, Lahor, District Swabi whereby he convicted the appellant Muhammad Naeem under section 302(b), P.P.C. And sentenced him to life imprisonment.
The appellant was also convicted under section 449/34. P.P.C. And sentenced to ten years' R.I. With a fine of Rs,one lac as compensation under section 544-A. Cr.P.C., if recovered, to be paid to the legal heirs of the deceased. Both the sentences were ordered to be run concurrently. Benefit of section 382-B, Cr.P.C. Was also extended to the appellant.
2. The prosecution story according to the F.I.R. Is that the complainant Pir Muhammad, his nephew Liaqat and Mst. Basihat were sleeping inside the room of their house while his deceased father Habibur Rehman was sleeping outside in front of that room the door of which was opened.
Suddenly they heard the report of firing and saw that accused Munsif alias Munshi (now absconder) and the appellant Muhammad Naeem were decamping from the scene of occurrence after firing at the deceased Habibur Rehman. Since the complainant party was empty-handed, therefore, they could do nothing. Motive as stated in the F.I.R. Is blood feud enmity between the parties.
3. After observing all the legal formalities, the appellant was formally charged on 20-7-2000. In order to prove its case the prosecution examined the following witnesses:-- ' (1) Zahir Ali Khan, A.S.-I. (P.W.1) (2) Gul Nawaz Khan, S.H.O. (P.W.2), (3) Sarzal Ameen (P.W.3), (4) Dr. Inamullah Khan (P.W.4), (5) Ali Bahadur, F.C. (P.W.5), (6) Habibur Rehman, A.S.-I. (P.W.6), (7) Awal Khan (P.W.7), (8) Bashir Muhammad Khan (P.W.8), (9) Pir Muhammad, complainant (P.W.;9) and
(10) Mst. Basihat (P.W.10).
4. Accused-appellant was examined under section 342, Cr.P.C. Wherein he stated that he wished to be examined on oath and will also produce defence but later on he did not examine himself on oath nor produced any evidence in his defence. The learned trial Judge after hearing the learned counsel for the parties convicted and sentenced him as mentioned above.
5. We have heard the learned counsel for the parties and have gone through the record of the case with their able assistance.
6. The case of the prosecution is that on 2-9-1999 the complainant Pir Muhammad (P.W.9) alongwith his sister-in-law Mst. Basihat (P.W.10) and his nephew Liaqat (abandoned P.W.) were sleeping in the room of their house whereas his father Habib-ur-Rehman (deceased) was sleeping in the courtyard in front of that room, the door of which was opened. Suddenly they heard fire shot and saw that the appellant and his co-accused were decamping from the spot after firing at the deceased. Since the complainant party was empty-handed, therefore, they could do, nothing.
Thereafter the complainant took the dead body of his deceased father to the hospital where he lodged report of the incident vide F.I.R. Exh.P.A. Bashir Muhammad Khan then S.H.O. (P.W.8) after recording the report of the complainant prepared the injury-sheet Exh.P.M./1 and inquest report Exh.P.M./2 of the deceased and dispatched the dead body to the mortuary for post-mortem examination where Dr. Inamullah Khan (P.W.4) conducted the autopsy on the dead body of the deceased at 7 a.m. The Investigating Officer himself went to the crime village where he prepared the site plan Exh.P.B. Recovered blood-stained earth and bulb through recovery memos and also conuucted the investigation.
7. The question which has to be answered in affirmative on the basis of the material available on record, whether the prosecution was able to prove that the appellant Muhammad Naeem is responsible for the murder of the deceased Habibur Rehman.
8. The ocular version of the incident has been furnished by Pir Muhammad complainant (P.W.9) and Mst. Basihat (P.W.10). Pir Muhammad complainant is the son and Mst. Basihat is the daughter- in-law of the deceased Habibur Rehman. Perusal of the statements of these P.Ws. Would show that both the witnesses have contradicted themselves on material points. According to the statement of Mst. Basihat (P.W.10), she stated that they identified the accused in the light of the bulb but Pir Muhammad complainant (P.W.10) was silent on this point. He has not mentioned the bulb in the F.I.R. Nor in his statement before the trial Court. The complainant stated that the occurrence took place at 3-00 a.m. While he has made a report at 4 a.m. He himself contradicted his own F.I.R.
Wherein the time of occurrence is mentioned as 4 a.m. And the time of report is 5-30 a.m. Mst.
Basihat stated that she saw the accused from inside the room when they were decamping from the spot. At that time her mind was not properly working and so her eyes. She admitted that when a person goes to sleep, the light if any is put off. She can neither affirm nor deny the suggestion that the dead body of the deceased was taken to the police station at about 10 a.m. For report as her brain was not properly working and she was not in full senses. In the postmortem report Exh.P.M.
The time of examination of the dead body is shown at 7-00 a.m. And the names of the identifier were Jamil and Sarzal Ameen. Sarzal Ameen appeared as P.W.3 and categorically stated that he had identified the dead body of his deceased uncle at the time of postmortem examination and it was about 3-30 a.m. Which contradicts the statements of the eye-witnesses and the Investigating Officer.
9. The above contradictions between the statements of Pir Muhammad complainant and Mst.
Basihat in the manner in which the occurrence took place. The complainant who is living in a separate house has failed to show that for what purpose he has gone to the house of the deceased on the night of occurrence. It also does not appeal to mind that a married person who has his wife and separate house had come to the house of his father and was sleeping in Kotha where the wife of his brother and nephew were sleeping, thus, the possibility cannot be ruled out that after the incident the complainant was informed by someone about the murder of his deceased father at his home then he came to the spot and took the dead body of his father to the police station and lodged the report with due deliberations, involving the appellant even with different time of incident to cover the delay. The discrepancies pointed out above militate against the credibility of the witnesses warranting the rejection of their testimony.
10. The last piece of evidence against the appellant is abscondence. In his statement under section 342, Cr.P.C. He deposed that he did not abscond. The moment he learnt about the false charge against him. He voluntarily surrendered before the police. Abscondence of the accused can be taken into consideration if other evidence on record is sufficient to hold that the prosecution has proved its case beyond reasonable doubt. In C the present case the prosecution has miserably'failed to establish the guilt of the appellant beyond any shadow of doubt. Furthermore, abscondence of an accused is a weak type of evidence and it has been observed by the D apex Court of the country that a person charged for a murder cannot be convicted on the sole basis of abscondence.
11. We have minutely examined the evidence brought on the record and are of the opinion that there are inherent doubts in the prosecution story. Nobody has seen the appellant firing at the deceased. Both the complainant Pir Muhammad (P.W.9) and Mst. Basihat (P.W.10) have stated only this much that they had seen the accused decamping from the spot. No doubt the unfortune incident has taken place and as a result Habibur Rehman deceased lost his life but not in the manner asserted by the prosecution.
12. In the circumstances narrated above, this appeal is accepted, the convictions and sentences awarded to the appellant Muhammad Naeem by the learned Additional Sessions Judge, Lahor, District Swabi by his order, dated 18-7-2001 are set aside and the appellant is acquitted of the charges levelled against him. He be set free forthwith if not required to be detained in any other case.