2016 P Cr (PLP)

ASSADULLAH KHAN CHAMKANI, J.

Appellant Muhammad Akram was tried by learned Additional Sessions Judge-XI, Peshawar, and on conclusion of trial, she vide judgment dated 21.06.2014, convicted and sentenced him as follow:- Under section 324, P.P.C. To undergo rigorous imprisonment for 5 years and to pay a fine of Rs.50,000/- or in default thereof to undergo 06 months' S.I. further. Under section 337-F(iv), P.P.C. To undergo 03 years' R.I. and to pay a fine of Rs.30,000/- as "Daman" or in default thereof to undergo 05 months' S.I. further. Benefit of section 382-B, Cr.P.C. was extended to the appellant.

2. Being discontented with his conviction and sentence, appellant has filed instant criminal appeal, while Muhammad Nawaz petitioner-complainant, has filed connected Cr.R. P. No.107-P/2014, for enhancement of sentence of the convict. As both, the appeal as well as revision petition, are the outcome of same judgment of the Trial Court, referred above, therefore, I am going to dispose of the same through this common judgment.

3. On 16.08.2012 at 04.45 hours, Muhammad Nawaz complainant (PW.3), in injured condition reported to Shah Wali Khan ASI (PW.4), in Casualty of LRH, Peshawar, that on the fateful day at 03.40 a.m., he was on his way to village mosque for offering morning/Fajjar prayer, when Muhammad Akram (appellant-convict herein), present on a thoroughfare near his house, opened fire at him with intention to commit his 'Qatl-i-amd', resultantly, he received injuries on his arms and abdomen, wherefrom he was shifted to hospital by his brother Riaz. He did not advance any motive for the incident. Report of the complainant was reduced into writing in the shape of murasila Exh.PA/1, on the basis of which FIR (Exh.PA) bearing No.475 dated 16.08.2012 under section 324, P.P.C. was registered at Police Station Armad, Peshawar. PW.4 prepared injury sheet of the injured Exh.PW.4/1 and referred him to doctor for treatment.

4. Mashal Khan SI (PW.1) proceeded to the spot and prepared site plan Exh.PB at the pointation of PW Riaz (abandoned). During spot inspection he took into possession bloodstained pebbles from the place of injured vide recovery memo Exh.PW.1/1, two empty shells of .30 bore from the place of accused vide recovery memo Exh.PW.1/2, and an electric bulb of 100 Volt vide recovery memo Exh.PW.3/1 from veranda of Ara Machine of one Hidayatullah, recorded statements of the PWs under section 161, Cr.P.C., initiated proceedings under sections 204 and 87, Cr.P.C. against the accused, took into possession bloodstained garments of the injured vide recovery memo Exh.PW.1/5, received a phial containing spent bullet vide recovery memo Exh.PW.1/6, sent the bloodstained articles to the FSL report whereof is Exh.PZ. After arrest of the accused, interrogated him and recorded his statement under section 161, Cr.P.C. and on completion of investigation handed over the case file to SHO, who submitted challan against the accused/appellant before the learned Trial Court.

5. On receipt of the challan, accused/appellant was summoned by the learned Trial Court, where he was formally charge sheeted to which he pleaded not guilty and claimed trial. To prove its case, prosecution examined eight 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 as his own witness 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 the appellant, as mentioned above.

6. Learned counsel for the appellant argued that appellant is innocent and has been falsely implicated on suspicions; that the occurrence is nocturnal taken place in the odd hours of night on a thoroughfare and the complainant neither in his initial report nor in his court statement has uttered a single word about any source of light on the spot, therefore, identification of the assailant in the circumstances is highly doubtful; that though, later on, the I.O. has shown recovery of 100 Volt bulb from Saw Machine of one Hidayatullah, but PW Riaz on whose pointation the site plan had been prepared and the alleged bulb was recovered, has been abandoned by the prosecution for no good reason; that owner of said Saw machine has also not been made witness to testify about existence of bulb in his saw machine, therefore, in such circumstances, possibility of plantation of bulb by the I.O. to make strong the prosecution case, cannot be ruled out. He argued that a .30 bore pistol allegedly recovered from the appellant has been sent to the FSL along with the recovered crime empties, but the FSL report is in negative; that mere stamp of injuries on the person of a witness would not be a certificate of his truthfulness. He added that in absence of any substantive evidence corroborated by strong circumstantial evidence, mere abscondence of the appellant would not be sufficient enough to prove his guilt. He contended that identification of the assailant in the dark hours of night without explanation of any source of light is highly doubtful, benefit of which is to be extended to the appellant and he be acquitted of the charge.

7. Conversely, learned counsel for the complainant while controverting the arguments of learned counsel for the appellant contended that appellant is singularly charged by injured complainant in a promptly lodged report; that mere none mentioning of source of light in the report of complainant, would not damage the prosecution case as during spot inspection the I.O. has taken into possession 100 volt bulb eliminating the question of mistaken identity; that ocular account of the injured complainant is corroborated by recovery of crime empties of .30 bore pistol, bloodstained pebbles from the spot and positive FSL report about the same; that in presence of direct and substantive evidence of the injured, mere negative report of the FSL qua recovered pistol and crime empties would not be sufficient to discard the prosecution case; that medical evidence supports the ocular account coupled with unexplained noticeable abscondence of the appellant, therefore, the learned Trial Court was justified by holding the appellant guilty of the offence. He however, added that when the guilt of the appellant was proved upto the hilt, then the learned trial Court ought to have awarded him maximum penalty provided for the offences. He sought dismissal of the appeal and requested for enhancement of sentence of the appellant.

8. Learned State counsel adopted the arguments of learned counsel for the complainant.

9. I have heard the arguments of either side and perused the record with their able assistance.

10. On the face of record, the incident has taken place in the month of August 2012 at 3.40 a.m. in the dark hours. The crime venue has been shown a thoroughfare in front of house of the injured complainant Muhammad Nawaz. Neither in his report nor in his court statement has he uttered a single word about any source of light in which he allegedly identified the appellant. In the site plan, complainant has been shown at Point No.1 at a distance of 8 paces from point No.2 i.e. the place of appellant. The complainant has not disclosed about kind of weapon used in the commission of offence by the appellant. Rather, later on, during spot inspection the empties of .30 bore pistol have been shown recovered from the place of the appellant. Had there been any light, the complainant would have definitely disclosed about the kind of weapon because .30 bore pistol is a common weapon which could easily be recognized by kids, then how the complainant could not recognize despite a little distance of 8 paces. Albeit, later on, during spot inspection, 100 Volt electric bulb has been shown recovered from point (B) i.e. Saw machine of one Hidayat Ullah, but PW Riaz, who is none else but real brother of the complainant and on whose pointation the site plan has been prepared, has been abandoned, for no good reason. Besides, the I.O., in the site plan, has not furnished inter se distance of saw machine and appellant nor Hidayat Ullah, owner of the said Saw Machine has been examined to prove the existence of the bulb in his machine. In these circumstances, it can be safely concluded that the bulb has been, later on, procured and planted, so as to fill the doubtful circumstances of identification. Non-production or non-appearance of PW Riaz to depose in favour of his brother/complainant, is another strong disturbing circumstance, which creates doubts in a prudent mind about the mode and manner of the incident. Nothing is on the record to show that he had strained relation with the complainant. Rather, he was the one who allegedly shifted him to the hospital, therefore, his non-production amounts to withholding of best available evidence and in such eventualities adverse inference within the meaning of Article 129(g) of the Qanun-e-Shahadat Order, 1984 would be drawn against the prosecution that had he been examined he would not have supported the prosecution case. Guidance in this regard may be derived from Shah Nawaz's case (1972 SCMR 286). 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.

11. As regard recovery of crime empties of .30 bore pistol from the spot. Initially the empties had not been sent to the FSL so as to determine as to whether these had been fired from one or more than one weapon and later on, when these were sent to the FSL along with .30 bore pistol allegedly recovered from the appellant, the same were found not fired from the recovered pistol, thus negative report of the FSL goes against the prosecution version. Moreso, a spent bullet extracted from the body of the victim and taken into possession by the I.O. has not been sent to the FSL with the recovered pistol and empties so as to determine as to whether the same was fired from the same pistol. The recovery of blood from the spot, bloodstained garments of the injured and positive FSL report, in respect thereof, would not advance the case of the prosecution, in absence of direct and substantive evidence, as such pieces of evidence are always considered as corroborative which are taken into consideration along with direct evidence. As regard absecondence of the appellant, on one hand appellant has denied the same in his statement under section 342, Cr.P.C., while on the other hand, no doubt, abscondence would be a relevant fact, but it can be used as a corroborative piece of evidence, which cannot be read in isolation but has to be read along with substantive piece of evidence.

12. For the foregoing reasons, I have reached to an irresistible conclusion that prosecution has miserably failed to prove the guilt of the appellant through cogent and confidence inspiring evidence beyond shadow of doubt. Rather, the major doubt pricking the judicial mind which would be sufficient for recording acquittal of the appellant, is the identification of the appellant keeping in view the peculiar facts and circumstances of the case, as discussed above, which cast heavy doubt in the prosecution case benefit of which could be extended to the appellant, because, the rule of benefit of doubt, described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice. It is based on the maxim that it is better that ten guilty persons be acquitted by having benefit of doubt, rather than one innocent person be convicted. This rule occupies a pivotal place in the Islamic Law and is enforced rigorously in view of saying of the Holy Prophet (PBUH) that the mistake of Qazi (Judge) in releasing criminal is better than his mistake in punishing an innocent person.

13. Resultantly, this appeal is allowed. Conviction and sentence of the appellant recorded and awarded by learned Trial Court vide impugned judgment dated 21.06.2014, are set aside and appellant is acquitted of the charge leveled against him. He be set at liberty forthwith, if not required in any other case.

14. These are reason of my short order of even date, read as under:- "For reasons to be recorded later, this appeal is allowed. Conviction and sentences of appellant Muhammad Akram, recorded and awarded by learned Additional Sessions Judge-XI, Peshawar under sections 324 and 337-F(iv), P.P.C. vide impugned judgment dated 21.06.2014, are set-aside, and he is acquitted of the charges leveled against him in case FIR No.478 dated 16.08.2012, registered under section 324, P.P.C. at Police Station Urmar Peshawar. He be set at liberty, forthwith, if not required in any other case. On acquittal of the convict, connected Cr.R. No.107-P/2014, titled, "Muhammad Nawaz v. Muhammad Ikram" has become infructuous, which stands dismissed as such."

15. Before parting with the judgment, I deem it appropriate to mention here that I did not find the age of the accused/appellant neither in his charge-sheet nor in his statement under section 342, Cr.P.C., which speaks about laxity of the Trial Court in conducting trial, because age of the accused is an essential factor in criminal cases, for determining the jurisdiction of the court to try the accused and same is also sometimes taken into consideration for determining the quantum of sentence in cases of conviction, keeping in view the facts and circumstances of each and every case. Admittedly, in this case the appellant has been acquitted, however, the above observations are for future guidance of the learned Trial Court. Copy of the judgment be sent to the learned Trial Court. HBT/486/P Appeal allowed.