'TALAAT QAYUM QURESHI, J. --- This appeal is directed against the judgment and order of the learned Sessions Judge, Charsadda, dated 22-2-2001 whereby the appellant was convicted under section 302(b), P.P.C. And sentenced to imprisonment for life as Tazeer and was also burdened with payment of Rs,40, 000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. Benefit of section 382-B, Cr.P.C. Was also extended to him. The complainant has also filed Criminal Revision No,31 of 2001 for enhancement of the sentence of the appellant to that of death.
Since both the matters are the outcome of one and the same criminal transaction, we propose to dispose of both the cases through this single judgment.
2. Briefly stated the prosecution case according to the complainant, brother of the deceased is that the complainant Muhammad Hassan alongwith Tariq Hassan deceased and his maternal-uncle Shahzad was going to the house of their grandfather and when they reached to the turn of Baghicha of Haji Zaffar Khan, accused Jan Alam who was already sitting there duly armed, on seeing Tariq Hassan, started firing at him as a result of which he got injured. The motive as stated in the F.I.R. Is a dispute over the use of path. Apart from the complainant the occurrence is alleged to have been witnessed by Shahzad P.W.
3. After completion of investigation challan was submitted in the Court of Sessions Judge, Charsadda. Charge against the appellant was framed to which he professed innocence and claimed trial.
4. In order to prove its case the prosecution examined as many as 9 witnesses.
5. P.W.1 Abdullah Shah, Muharrir H.C. On the receipt of Murasila alleged to have incorporated its contents into the F.I.R. As Exh.P.A. And is also marginal witness to recovery memo. Exh.P.C. Vide which the Investigating Officer took into his possession a shirt Exh.P.1., Shalwar Exh.P.2 and Banyan Exh.P.3 stained with blood belonging to the deceased.
6. P.W.2 Dr. Muhammad Israr Khan, Medical Officer, District Headquarter Hospital, Charsadda on 17- 6-1999 at 6-30 a.m. Conducted autopsy on the dead body of the deceased Tariq Hassan son of Muhammad Azam and found the following:-- ' External examination ' The deceased was brought as injured to District Headquarter Hospital, Charsadda where he was examined and referred to LRH Peshawar after providing him first aid. The injured expired in the said hospital at 8-30 a.m. And his dead body was brought to Civil Hospital Charsadda. The dead body was stout and his clothes were stained with blood.
' Wounds
(1) Fire-arm entry wound just outside stermoclavicular joint of right shoulder (above right shoulder). The size of wound was 1/2" x 1/2" charring marks were seen.
(2) Exit wound of fire-arm entry wound No,1 at the left upper side of abdomen (left upper quandrum). The size of the wound was 1" x 1"
' Internal examination ' Pleurae was injured and full of blood. Right lung was also injured and full of blood. Left lung was not injured but full of blood. Blood vessels were injured. Abdominal walls injured on left upper quadrant making exit wound. Peritonium, diaghrapham and stomach injured. The stomach was empty. Large and small intestines were also injured. Muscles of right shoulder and left side abdomen injured due to fire-arm injuries.
' Remarks: In his opinion he died due to injuries to the vessels of vital organs and accumulation of blood in the pleural cavity as well as abdominal cavity. Probable time between injury and death ...
Two hours approximately. Between death and post-mortem examination is 10 hours approximately.
The post-mortem report is Exh.P.K. Along with pictorial Exh.P.K./1 and are in the handwriting of the same doctor and correctly bore his signatures. The inquest report also bore his signature.
7. The appellant's statement was recorded under section 342, Cr.P.C. He stated that he was innocent and was falsely implicated in the case. He did not wish to be examined under section 340(2), Cr.P.C.
8. Messrs Asadullah Chamkani and Imitazur Rehman the learned counsel representing the appellant argued that the prosecution had failed to bring home charge against the appellant. The prosecution story is self-contradictory, fanciful and does not appeal to the prudent mind.
9. It was also argued that the learned trial Court has failed to appreciate the evidence available on record. The entire case of prosecution is based on solitafy statement of Muhammad Hassan P.W.6 and there was no corroboration to the version put forth by him. His presence on the spot was also doubtful.
10. It was also argued that Shahzad Gul P.W. Who was maternal-uncle of the deceased and alleged eye-witness mentioned in the F.I.R. Was abandoned by prosecution for the reasons best known to it.
11. It was further argued that both the doctors not only contradicted with each other, but the entire medical evidence was in direct conflict with the ocular version put forth by Muhammad Hassan P.W.6.
12. It was further argued that the venue of offence was also doubtful, there is no substantial support in the shape of recovery of crime-empty and blood-stained earth from the spot.
13. It was also argued that Muhammad Hassan P.W.6 had made improvements, his version was doubtful, full of contradictions and omissions, hence was not reliable.
14. On the other Mr. Ahmad Jan D.A.-G. Representing the State and Mr. Mazullah Barkandi, Advocate the learned counsel for the complainant argued that although the learned trial Court has properly appreciated the prosecution evidence by making full discussion on the case, but the learned Court failed to award correct and lawful sentence to accused-appellant.
15. It was also argued that single accused was charged for single deceased. Medical evidence supports the prosecution allegations of firing and the abscondence of the accused/appellant who was desperate person, and had killed the deceased for no obvious fault and without any justification. The appellant was liable to be awarded death penalty. It was prayed that the appeal filed by the appellant be dismissed and while accepting the revision, the appellant be awarded death penalty.
16. We have heard the learned counsel for the parties and gone through the evidence on record.
17. We have been persuaded to allow the appeal and dismiss the revision petition on the following reasons:--
18. Firstly, the time of occurrence in this case is doubtful. Perusal of the F.I.R. Exh.P.A. Shows that the occurrence took place at 18-45 hours. Muhammad Hassan, complainant P.W.6 did not support the time mentioned in the F.I.R. By him. During the cross-examination he stated:-- "P.W. Shahzada reached our house at about 5-00 p.m. The deceased was also present in the house. Shahzada stayed in our house at 6-45 p.m. And thereafter we left our house. It takes about 10 minutes in reaching the spot from our house."
19. Complainant alongwith the deceased and Shahzada abandoned P.W. Were present in their house till 6-45 p.m. And when it had taken 10 minutes to reach the scene of occurrence, how the occurrence could take place at 18-45 hours i,e, 6-45 p.m. Either the time of occurrence was not correctly reported by P.W.6 in the F.I.R. Or his statement to this effect was wrong.
20. Secondly, the very venue of occurrence in this case is doubtful. Neither recovery of any empty of the arms used in the commission of offence was recovered from the spot nor any blood-stained earth was taken into possession of from the place of occurrence. Though the doctor who had conducted the post-mortem report had found fire-arms entry wound just outside stermo- clavicular joint of right shoulder (above right shoulder) at injury No,1 and there was exit wound of fire-arm entry wound No,1 at the left upper side of abdomen (left upper qundrum) of the size of 1" x 1" not only plurae was injured, but right lung was also injured. The blood vessels, abdominal walls, diaghraphm were injured and the dead body was lying there for sufficient long time. It was the duty of the prosecution to explain as to why no blood-stained earth was collected from the spot but not a single word has come forward from the mouth of any of the prosecution witnesses.
21. Moreover, site plan, it has been held in a number of judgments, is not substantive piece of evidence, but being the first reflection of the spot, indicated/pointed out by the eye-witnesses, furnishes a panoramic view of the occurrence to scrutinize the evidence of the prosecution witnesses given in the trial. Site plan, therefore, assumes importance. It consists of two parts, one which is prepared at the pointation of the eyewitnesses and the other part is based on observation of the Investigating Officer. The pointation made by witnesses as to the respective position of the accused, victim and eye-witnesses during the investigation are actually observed by the person who goes to the spot in order to see as to whether there was possibility of commission of crime in the manner mentioned by the said eye-witnesses. In the case in hand, the site plan Exh.P.B. Was prepared on the following day. The occurrence in this case had taken place at 6-45 p.m. On 16-6- 1999. Since it was the month of June, therefore, there was sufficient light at the time of occurrence, there is no explanation worth the name on the record as to why the site plan was prepared on the following day. The absence of any explanation also makes the case of prosecution doubtful.
22. Thirdly, the nature of the weapon of offence used in the commission of crime was also not disclosed by either of the prosecution witnesses. Muhammad Hassan P.W.6 in the F.I.R. Reported that the appellant was present on the spot duly armed with weapon and on seeing the deceased he fired at him with which he was hit and injured. When he was examined as P.W.6 he did not state as to which kind of weapon the appellant had allegedly used for murdering the deceased.
Valuable piece of evidence was, therefore, withheld.
23. Fourthly, the presence of Muhammad Hassan P.W.6, on the spot at the time of occurrence is also doubtful. In the F.I.R. He stated that when he reached near the turning of Baghicha of Haji Zafar Khan, accused appellant fired at the deceased. Perusal of the site plan Exh.P.B. Shows that Muhammad Hassan P.W.6 was shown at point No,2. The distance between point No,1 where the deceased was present and point. No,2 has been shown to be 40 paces, whereas the distance between points Nos.2 and 3 is shown 44 paces. If the accused had any bad intention, why he did not fire at the complainant, when he passed through him being real brother of the deceased and why the deceased was left behind when there was some dispute between the accused-appellant and the deceased over the use of path and why the alternate path which was available for going to Painda Khel was not used are the questions which finds no answer from the record.
' The other eye-witnesses namely Shahzad, maternal-uncle of the deceased, who was also eye- witness to the occurrence was abandoned by prosecution for no good reasons.
24. Then the conduct of Muhammad Hassan P.W.6 was not natural. He did not react when his brother had been fired upon.
25. Fifthly, the medical reports and statements of two doctors examined by prosecution were contradictory. Dr. Niaz Ali C.W.1 had examined Tariq Hassan in the hospital in injured condition. He found him in semi-conscious position. He also found:--
(1) An entry wound size 1" x 1" with charring marks and oozing blood situated below the costal margin on left side of abdomen.
(2) An entry wound size 1" x 1" with charring marks and oozing blood situated on the left shoulder 1" lateral to the left stermo clavicular joint. The injured is given emergency treatment and then referred to LRH Peshawar for management. Nature of injuries later on.
26. Thereafter Dr. Muhammad Israr Khan P.W.2 had performed post-mortem examination on the dead body of Tariq Hassan at 6-30 a.m. He found:--
(1) Fire-arm entry wound just outside stermo clavicular joint of right shoulder (above right shoulder). The size of wound was 1/2" x 1/2". Charring marks were seen.
(2) Exit wound of fire-arm entry wound No,1 at the left upper side of abdomen (left upper quandrum). The size of the wound was 1" x 1".
' Dr. Niaz Ali C.W.1 had found an entry wound size 1" x 1" with charring marks and oozing blood situated on the left shoulder 1" lateral to the left stermo clavicular joint, whereas Dr. Muhammad Israr P.W./C.W.2 found fire-arm injury just outside stermo-clavicular joint of right shoulder (above right shoulder) wound size 1/2" x 1/2" with charring marks. One Dr. Niaz Ali (C.W.1) found injury on the left clavicular joint whereas Dr. Muhammad Israr (P.W./C.W.2) found injury on the right shoulder.
27. Shad Muhammad, S.-I. P.W.5 had taken into possession shirt of the deceased Exh.P.1, Shalwar Exh.P.2 and white Banyan Exh.P.3 stained with blood sent by the doctor to him vide recovery memo.
Exh.P.C. The shirt Exh.P.1 taken into possession did not contain any charring or cut marks on injury No,1 When Dr. Niaz Ali was examined as C.W.1 the learned trial Court put the following question:-- ' C.Q. The case property, i,e, shirt of the deceased then injured was shown to C.W.1. He replied to the question as follows:-- "Whether charring marks are present upon injury No,1 the cut marks of injury No,1 on the shirt?
' Ans. No, there are no charring marks on the cut mark of injury No,l.
' What to speak of the contradiction in the medical reports of the two doctors, the shirt of the deceased Exh.P.1 even did not contain the charring marks or corresponding cut marks on it. This fact has also created doubt in our mind.
28. Sixthly, the ocular version is also not in line with the medical evidence. Dr. Niaz Ali C.W.1 found two entry wounds on the body of the deceased whereas Muhammad Hassan complainant admitted in cross-examination:-- "The deceased was hit with one fire shot."
' If the deceased was hit by one fire shot, then how Dr. Niaz Ali C.W.1 found two entry wounds on the body of the injured. It appears that in order to bring the prosecution evidence in line with the statement of Dr. Muhammad Israr Khan P.W.2, who had shown one entry and one exit wound in his post-mortem report Exh.P.K. Muhammad Hassan P.W.6 also stated that the deceased was hit with one fire shot. The medical evidence was, therefore, in conflict with the ocular version.
29. Moreover, the perusals of the site plan Exh.P.B. Shows that the accused-appellant was present at the time of occurrence at point No,3, whereas the deceased was at point No,l. The deceased was going from east to west, therefore, his right side was towards the accused-appellant. If as per story of the prosecution, the accused-appellant made firing from point No,3 upon the deceased then, he should have been hit on right shoulder, but Dr. Niaz Ali C.W.1 found entry wound on the left shoulder of the deceased, which is not in line with the prosecution case.
30. Another material fact is that the post-mortem report Exh.P.K. Shows that fire-arm entry wound outside stermo-clavicular joint of right shoulder (above right shoulder) whereas exit wound was found at the left upper side of abdomen (left upper quadrum). Dr. Muhammad Israr Khan P.W.2 in cross-examination admitted:-- "It is correct that the victim was at a lower level than the assailant and that is why noticed the injury which was entry on the shoulder and exit was on the abdomen."
' The said report shows that the accused-appellant at the time of commission of crime was at a higher level whereas the victim was at a lower level, but this position was not supported by Shad Muhammad Khan, S.-I. P.W.5 who stated that:-- "It is correct that points Nos.1 and 2 are situated at one level."
' The, site plan Exh.P.B. Also shows that point No,3 is not on higher level than point No,1, therefore, the firing, if any, was made from the same level. The ocular evidence is in contradiction with the medical evidence on this point also.
31. Another material contradiction which needs to be pointed out at this juncture is that Dr. Niaz Ali C.W.1 found charring marks on both the entry wounds, whereas Dr. Muhammad Israr Khan P.W.2 found charring marks only on entry wound No,1 i,e, on right shoulder. It is by now a settled proposition that blackening or charring marks around the wound is possible when firing is made from 5/6 feet. Site plan Exh.P.B. Shows that distance between point No,1 (where the deceased was present) and point No,3 where the appellant has been shown present is 4 paces. If the deceased was fired at from point No,3, the charring/blackening marks should not have been available around the wounds. The presence of charring/blackening marks shows that the deceased was fired at from a near distance, which was not more than 4/5 feet in any case.
32. Seventhly, the alleged eye-witness Muhammad Hassan P.W.6 made improvements in his statement recorded before the Court. In the F.I.R. He stated that when he reached near the turn of Baghicha of Haji Zafar Khan, the appellant who was duly armed, on seeing Tariq Hassan started firing at him with which he was hit and injured, but in his Court statement he stated:-- "When we reached the house of Jan Alam accused, we noticed him armed in front of his house. I and Shahzada P.W. Crossed Jan Alam at some distance. We stopped for arrival of Tariq Hassan deceased towards us, who was behind us."
33. Similarly in the F.I.R. He did not state as to how many fires were shot by the appellant but in his Court statement he stated that:-- "Only two fire shots were made by the accused in my presence."
34. The above mentioned improvements made by P.W.6 shows that he had withheld the correct information while recording F.I.R. Exh. P. A .
35. Seventhly, the prosecution was unable to prove the motive also. It is in the F.I.R. That the motive for the commission of offence was the use of passage. Neither any witness was examined by the prosecution to show that the appellant had ever restrained the deceased to use the passage, nor there was any dispute pending between the parties with regard to the use of the passage. Perusal of the site plan Exh.P.B. Shows that the deceased alongwith P.Ws. Were proceeding from east to west. With the house of Moor Hamid, there was a passage turning towards south. In case the appellant had restrained the deceased to use the passage in front of his house, the deceased and P.Ws. Could use the alternative path leading towards Painda Khel (towards south). Since specific motive has been set forth by the prosecution, but they failed toll prove the same.
36. In short the prosecution has failed to bring home the charge against the appellant. It has failed to prove its case beyond any reasonable doubt. The case of prosecution is full of doubts and contradictions. It is not necessary that there should be more than one reason in the circumstances, if one reason creates reasonable doubt in the prudent mind that alone would be sufficient for discarding the prosecution witnesses. Wisdom in this regard has been sought from Riaz Masih alias Mitto v. The State 1995 SCM R 1730 and Saeedullah v. Shah Nazar and others 2001 PCr.LJ 1740. The learned trial Court has failed to appreciate the evidence available on record in its true perspective.
We, therefore, accept the appeal, set aside the conviction and sentence M awarded to the appellant by the learned trial Court and acquit him of the charge levelled against him. He shall be released forthwith if not required in any other case. Resultantly, the revision petition filed by the complainant merits dismissal, which is hereby dismissed.