2016 P Cr (PLP)

ASSADULLAH KHAN CHAMKANI, J.

Appellant Noroaz Khan, stood trial in case F.I.R No.431 dated 18.08.2011, registered under sections 324/34, P.P.C., at Police Station Billitang, District Kohat, and on conclusion of trial, being guilty of the offence, was convicted and sentenced by the trial Court, in the following manner:- Under sections 324/34, P.P.C.: To undergo ten years' S.I. and to pay a fine of Rs.50,000/- or in default thereof to undergo 03 months' S.I. further. Under section 337-F(ii), P.P.C.: To undergo 03 years' S.I. as Ta'zir and to pay Daman amounting to Rs.10,000/- to each victim namely Zawar, Roman Ali and Bakhtiar. The sentences have been ordered to run concurrently and benefit of section 382-B, Cr.P.C. has been extended to him.

2. The prosecution case is that, Taifur Shah ASI (PW.5), on receipt of information about shifting of injured to KDA hospital, rushed there, where complainant Zawar (PW.2) reported him in injured condition, that on the fateful day he along with his brother Roman Ali, grand mother Mst. Sultan Zari (both not examined) and relative Bakhtiar, was on the way to Peshawar in a motorcar No.MNP.6521. At 10.00 a.m. when they reached on Pindi orad near Shinwari Petrol Pump, appellant along with absconding co-accused Waris Khan, Israf Khan and Nasir Khan, duly armed with pistols, chased them on motorbikes and opened fire at them, resultantly, he, his brother Roman Ali and Bakhtiar were hit and injured while his grandmother Mst. Sultan Zari luckily escaped unhurt. Motive behind the occurrence is stated to be a dispute over women fold.

3. On arrest of the accused/appellant and completion of investigation, challan was submitted against him before the trial Court, where he was charge sheeted, to which he pleaded not guilty and claimed trial. To prove his guilt, prosecution examined nine witnesses. After closure of the prosecution evidence, statement of accused/appellant was recorded under section 342, Cr.P.C. wherein he denied the prosecution allegations and professed his innocence. He, however, declined to be examined on oath under section 340(2), Cr.P.C. or to produce evidence in defence. On conclusion of trial, learned trial Court, after hearing both the sides, convicted and sentenced him, as referred to above. Hence, this appeal.

4. Learned counsel for the appellant argued that impugned judgment of the trial Court is the result of misreading and non-reading of evidence; that general role of firing has been attributed to four accused; that Mst. Sultan Zari, the grand mother of the complainant and injured PW Roman Ali, the brother of the complainant, have been abandoned for no good reasons, which amounts to withholding of best available evidence, and in the circumstances, adverse inference within the meaning of Article 129(g) of the Qanun-e -Shahadat Order, 1984 would be drawn; that the ocular account is suffering from material contradictions and dishonest improvements creating serious doubts in the prosecution case, benefit of which is to be extended to the appellant and he be acquitted.

5. Conversely, learned counsel for the complainant/respondent contended that appellant is directly charged by complainant in a daylight occurrence, who is having stamp of injuries on his person; that the ocular account of the occurrence is corroborated by circumstantial pieces of evidence coupled with medical evidence; that defence has failed to create any dent in the prosecution evidence which is trustworthy, straightforward and confidence inspiring, thus, the learned trial Court was justified by holding him guilty of the offence. He contended that the impugned judgment being well reasoned does not warrant any interference by this Court. He sought dismissal of the appeal.

6. Learned A.A.G. adopted the arguments of learned counsel for the complainant.

7. We have considered the respective submissions of learned counsel for the parties and perused the record with their valuable assistance.

8. Perusal of First Information report reveals that complainant has not given specific role to appellant/accused i.e. whether he was riding the motorbike or was sitting behind the rider. He has only mentioned that they were chased by the accused on their motorbikes and opened fire at them. When appeared as PW.2 complainant deposed that out of the four accused, it was Noroz and absconding co-accused Israf, who fired at them. The cross-examination of complainant is of worth importance. He deposed that firstly he saw the accused riding on the motorcycles, who were chasing their motorcar from a distance of 10 paces; that he was sitting in front seat while the injured PWs and his grandmother was in rear seat. But contradicting his stance, in further cross-examination he stated that motorcycle suddenly emerged when they reached near petrol pump. These two versions create doubt in his statement. Moreover, if the accused were chasing the complainant party, how the complainant noticed them and if so, when the accused could easily accomplish their task, why they did not fire from back to conceal their identity. Complainant further deposed that the two accused who were sitting behind the riders, were having .30 bore pistols, which means that only two accused have fired at them and this part of his statement is also negation of his earlier version, as this circumstance has not been disclosed by him in his initial report. He further stated that total seven shots were fired, as a result the window glasses of the vehicle were smashed; that there were bullet marks on the car. It is settled by the apex Court in case titled, "Shahbaz Khan Jakhrani v. Lal Beg Jakhrani and others" (1984 SCMR 42) that improvements made by witness in order to bring in line his case with other circumstances of the case would cause serious doubts on veracity of his testimony. Complainant admitted that in his presence the I.O. did not recover any incriminating from the spot and the vehicle was produced before the I.O. on 23.08.2011. It appears from the record that no pieces of smashed glass has been taken into possession to justify the stance of the complainant.

9. Injured Bakhtiar has been examined as PW.3. He also to bring his testimony in line with the complainant has totally negated the earlier version of complainant set forth by him in his initial report. However, in his cross-examination he totally negated the statement of complainant by deposing that 10/12 shots were fired, out of which six hit them. This stance of PW.3 is in contrast with the stance of the complainant on number of fire shots. He deposed that he had not produced his vehicle/motorcar before the I.O. during investigation of the case.

10. Zulfat Ali Shah S.I. appeared as PW.6. He conducted investigation in the case. In cross-examination he admitted that he has not recovered any crime empty or broken glass from the spot and did not record statement of any independent person on the spot. He voluntarily added that glasses of the car were not hit by bullets. This volunteer piece of his statement totally negates the statement of complainant and PW.3 regarding smashing of glasses of the car.

11. The statements of these three material witnesses totally run contradictory with each other on material particulars of the incident, which create serious doubts in the prosecution case. Besides, it is also not appealable to a prudent mind that Mst. Sultan Zari, who was sitting in the rear seat with other injured PWs has not sustained any injury. Moreso, she has been abandoned along with injured PW Roman Ali for no good reason, which amounts to withholding of best available evidence, as both the witnesses are closely related to the complainant i.e. his grandmother and real brother, thus, in the circumstances, adverse inference in terms of Article 129(g) of the Qanun-e-Shahadat Order, 1984 would be drawn that had they been produced by the prosecution they would not have supported the prosecution version.

12. No doubt, in hurt cases, statement of injured witness, supported by medical evidence, is sufficient for recording conviction, provided it rings true and is trustworthy, in view of its intrinsic worth. Mere stamp of injuries on the person of a witness would not be a proof of the fact that whatever he deposes would be the truthful account of the events. His veracity is to be tested from the circumstances of the case and his own statement whether it fits in the circumstances of the case or otherwise. It is well settled principle of law that for recording conviction strong and corroborative evidence of unimpeachable character is required. It is golden principle of criminal justice that finding of guilt against accused must not be based on probabilities to be inferred from evidence. Such findings must rest surely and firmly on the evidence of unimpeachable character, otherwise, the golden rule of benefit of doubt would be reduced to naught. Absolute certainty is seldom in forming an opinion qua guilt or innocence of a person. The Courts by means of proper appraisal of evidence must be vigilant to dig out truth of the matter to ensure that no injustice is caused to either party. It is cardinal principle of administration of criminal justice that prosecution is bound to prove its case beyond any shadow of doubt. If any reasonable doubt arises in the prosecution case, the benefit of the same must be extended to the accused not as a grace or concession, but as a matter of right. Likewise, it is also well embedded principle of criminal justice that there is no need of so many doubts in the prosecution case, rather any reasonable doubt arising out of the prosecution evidence, pricking the judicious mind is sufficient for acquittal of the accused. Basically, it is the principle enshrined in Islamic jurisprudence, fourteen hundred years ago that "it would be better to acquit hundred culprits than convicting one innocent soul." Which has now been transformed into the form of the principle that, "acquitting by error would be better than convicting by error". The said commandment has evolved into the theory of benefit of doubt, which, invariably, is extended to the accused for safe administration of criminal justice.

13. The nutshell of the above discussion is that the prosecution has badly failed to prove the guilt of the appellant/accused through cogent and confidence inspiring evidence. The learned trial Court has not properly appreciated the evidence in its true perspective and thus reached to a wrong conclusion by holding the appellant guilty of the offence. Resultantly, this appeal was allowed, the impugned conviction and sentence of the appellant was set aside and he was acquitted of the charge. These are reasons of my short order of even date, which is reproduced below:- "For reasons to be recorded, later on, I allow this appeal, set aside the conviction and sentence of the appellant-convict Noroz Khan, recorded by the trial Court/Additional Sessions Judge-V, Kohat vide impugned judgment/order dated 11.12.2013 and hereby acquit him of the charge in case FIR No.431 dated 18.08.2011, registered under sections 324/34, P.P.C. at Police Station Billitang District Kohat. He be set at liberty forthwith, if not required in any other case". HBT/329/P Appeal allowe