' IJAZ-UL-HASSAN, J.--- This judgment will decide Criminal Appeal No,205 of 1994 filed by the State under section 417, Cr.P.C. Impugning the judgment of learned Sessions Judge, Karak, dated 26-2- 1994, whereby Gul Faraz son of Sard Ali Khan, resident of Darsha Khel, Tehsil and District Karak accused-respondent, charged alongwith his cousins Muhammad Ayaz and Sher Nawaz (absconding co-accused) for murder of Ghulam Nasir and attempted murder of complainant Sar Anjam Khan and his son Abdul Karim P.Ws., was acquitted on extending the benefit of doubt.
2. Shortly narrated the facts of the case are that on 12-10-1992 at 11-30 hours P.W. Sar Anjam Khan, maker of the report brought the dead body of his son Ghulam Nasir to Police Station Salim Khan and made a report to the effect that on that day i,e, 12-10-1992 in the morning, he alongwith his sons P.W. Abdul Karim and Ghulam Nasir alias Ghulam Nisar (deceased) left their house alongwith oxen for ploughing land situated in Dagari Banda' and on reaching there P.W. Abdul Karim and deceased Ghulam Nasir started ploughing and were busy in sowing wheat when at about 10-00 a.m. Gul Faraz accused, Muhammad Ayaz and his brother Sher Nawaz (absconding co-accused) appeared duly armed with Topaks. Gul Faraz loudly commanded his confederates to kill the complainant and his sons. Muhammad Ayaz and Sher Nawaz fired at Ghulam Nasir deceased as a result of which he was hit, fell on the ground and died there and then. The complainant added that accused-respondent and his companions also fired at them but they escaped unhurt. After the occurrence the accused bolted away from the spot. A dispute over land was stated to be a motive leading to the occurrence.
3. Amir Nawab, S.H.O. Police Station Shah Salim (P.W.9) recorded the report (Exh.P.A.) at the instance of complainant Sar Anjam Khan, prepared the injury sheet (Exh.P.W.9/1) and Inquest Report (Exh.P.W.9/2) of the deceased and dispatched the dead body to Civil Hospital, Takhti Nusrati for post-mortem examination. On reaching the spot .He prepared site plan (Exh.P.B.) with all its foot notes and sketches at the pointation of eye-witnesses. He took into possession blood-stained earth (Exh.P.3) from point No,1, one plough (P.4) alongwith yoke etc. From point No,2, another plough (P.5) alongwith instruments vide recovery memo. (Exh.P.C.). He also prepared recovery memo.
(Exh.P.W.2/1) with regard to recovery of shirt (P.1) and one Shalwar (P.2) blood-stained having corresponding cut marks brought by constable Mir Kalam from the hospital. As the absconding co- accused were fugitive from law he obtained warrants of arrest and proclamations against them.
He arrested accused-respondent on 14-11-1992 when his pre-arrest bail was not confirmed by the Court of Session. He despatched blood-stained earth and blood-stained clothes of the deceased to the laboratory, placed on record result of laboratory (Exh.P.W.9/3), recorded statements of prosecution witnesses and submitted complete challan in Court.
4. The prosecution in order to prove its case produced nine witnesses in all. Nasrullah (P.W.1) identified the dead body of the deceased at the time of post-mortem examination in the mortuary.
A.S.-I. Ali Gul (P.W.2) is marginal witness to recovery memo. (Exh.P.W.2/1) Hashim Gul (P.W.3) is marginal witness to recovery memo. (Exh.P.C.), Sakhi Janan (P.W.4) also identified the dead body of the deceased in the police station as well as in the mortuary during post-mortem examination.
Constable Mir Kalam (P.W.5) accompanied the dead body of the deceased from the police station to the hospital and handed over the clothes of the deceased to the Investigating Officer. Sar Anjam Khan (P.W.7) and Abdul Karim (P.W.8) furnished eye-witness account of the incident. S.H.O. Amir Nawab (P.W.9) carried out investigation in the case. Dr. Fida Muhammad (P.W.6) on 12-10-1992 at.
2-15 p.m. Conducted the post-mortem examination of Ghulam Nisar Khan deceased (22/23) and noted the following:-- ' External ( 1) Fire-arm entry wound on right thigh laterally, size about 1/2" x 1/2" with corresponding fire-arm exit wound on the medial side of thigh with a fracture of right femur bone, size about 1" x 1".
(2) Fire-arn entry wound on the lateral side of thigh left side, size about 1/2" x 1/2" with the corresponding fire-arm exit wound on the medial side of the left thigh with a fracture of left femur bone, site about 1-1/2" x 1".
' Internal ' Abdomen. Stomach is empty, small and large intestines are full of gases and foeces. All other organs are normal and intact.
' Cranium and spinal cord and thorax. Normal and in tact.
' Muscles, bones and joints. There are two fire-arm entry wounds on both left and right thigh each with corresponding exit wounds one on both the sides, and fracture of both the femur bones.
' Remarks ' Probable time between injury and death 1/2 to 1-1/2 hours and between death and post-mortem examination 6 to 12 hours.
5. The accused-respondent in his statement under section 342, Cr.P.C. Denied the prosecution allegations and claimed to have been falsely charged on account of land dispute. He also stated that on the day of occurrence he had gone to D.I. Khan Balot Sharif and on return surrendered before the Court on learning the charge. He led no evidence in defence.
6. After appraisement of the evidence, learned trial Judge, disbelieved the eye-witness account rendered by complainant Sar Anjam Khan and his son Abdul Karim P.Ws. And proceeded to hold that there are material contradictions in their statements qua the accused-respondent and prosecution case against him is highly doubtful. Having held so, he extended benefit of doubt in favor of accused-respondent and acquitted him of the charges, as noted above.
7. Malik Ahmad Jan, learned Deputy Advocate-General in support of the appeal submits that it was broad-daylight occurrence; that it is a case of promptly lodged F.I.R.; that the name of the accused-respondent had been mentioned in the F.I.R.; that both the eye-witnesses are consistent in their statements; that the motive is admitted; that the medical evidence and recoveries from the spot fully connect accused-respondent with the crime and that the absconsion of accused- respondent is a pointer towards his guilt. To support the pleas, reliance was placed on Elahi Bakhsh v. Rab Nawaz and another 2002 SCM R 1842 and Muhammad Younas and another v. The State and others 1990 SCM R 1272.
8. Mr. Lal Jan Khattak, Advocate, learned counsel for accused-respondent, on the other hand, supports the impugned judgment and reiterates that having regard to facts and circumstances of the case and the role assigned to accused-respondent learned trial Judge was justified in acquitting the accused-respondent. The case reported as Mst. Roheeda v. Khan Bahadur and another 1992 SCM R 1036, was referred in this connection.
9. The prosecution primarily is supposed to establish guilt against the accused beyond shadow of reasonable doubt by bringing trustworthy, convincing and inherent evidence for the purpose of awarding conviction. To convict a person on a capital charge evidence should be of very high quality and good standard which is not available in this case. From the re- evaluation of the ocular, medical and recovery evidence, we agree with the conclusion arrived at by the learned trial Court that the testimony of complainant Sar Anjam Khan and his son Abdul Karim P.Ws. Is contradictory and discrepant qua accused/respondent and has been rightly discarded. The reasons recorded for acquittal of accused-respondent are based on correct appraisal of evidence and provide no ground for interference of this Court.
10. For the foregoing reasons, finding no force in this appeal we dismiss the same. .