2014 PLP 628 (YLR)

SYED AFSAR SHAH, J.

This criminal appeal under section 410 Cr.P.C., filed by the convicts/appellant Khan Babadur Khan, is directed against the judgment dated 13-12-2010, passed by learned Additional Sessions Judge-IV, Bannu, whereby he has been convicted under section 302-B/34, P.P.C. and sentenced to imprisonment for life on two counts, with compensation of Rs.1,00,000 payable to the legal heirs of the deceased or in default thereof to undergo six months' S.I. further; he was also convicted under section 427, P.P.C. and sentenced to pay fine of Rs.50,000 or in default thereof to undergo one months' S.I. further. He was, however, acquitted under section 324, P.P.C. The complainant Mir Qabaz Khan has also filed Cr.R. No. 10-B of 2011, seeking enhancement of the sentence. Since both the appeal and revision are the outcome of one and the same occurrence, therefore, these are being disposed of by way of this single judgment. On 28-10-2009, a about 1335 hours the complainant Mir Qabaz Khan (P.W.8) brought the dead bodies of his deceased son Taj Ali and one other, namely, Barkatullah to RHC, Domel and made a report to Faqir Muhammad Amir A.S.H.O. of Police Station Domel to the effect that on the day of occurrence, his son Taj Ali and Barkatullah son of Muhammad Subhan were on way to their landed property, situated in Mir Ali Kalla for its ploughing, on a Tractor and that he and Aziz-ur-Rehman were following them on foot; that when they reached to the pakka road leading to Umar Zai opposite to the shop of Khan Bahadur, situated in Kotka Gulbroz, their accused Fazal Subhan, Abdul Wadood, Sher Bahader and Khan Bahadur, duly armed with riffle 7.62 bore, already present there, started firing on them and due to which, Barkatullah and Taj Ali Khan were injured, whereas they escaped unhurt; that since they were unarmed, therefore, could not retaliate and the accused after commission of the offence fled away from the place of wardaat; that on visiting, the injured Barkatullah had already succumbed to the injuries, whereas Taj Ali was alive, but he was severely injured, however, on way to the hospital, he also succumbed to the injuries. Motive behind the offence as stated by the complainant is a dispute over a thoroughfare. The occurrence in addition to the complainant Mir Qabaz Khan is stated to have been witnessed by Aziz-ur-Rehrnan, who was accompanying him at the time, of occurrence. He has charged the appellant along with his co-accused for commission of the offence.

3. Above is the narration of complainant Mir Qabaz Khan in the shape of Murasila, which was recorded by Faqir Muhammad Amir A.S.H.O., in the RHC Domel, Bannu. After writing report of the complainant, it was read over and explained to him, who after admitting it to be correct signed the same in token of its correctness, whereafter, Faqhir Muhammad Amir A.S.H.O. inspected dead-bodies of the deceased, prepared its injury sheets and inquest reports and referred it for post mortem examination under the escort of Naved Khan FC.

4. Investigation was started in the case and on its completion complete challan was submitted in the Court of learned Additional Sessions Judge-IV, Bannu, where the accused was summoned and after regular trial conducted therein the trial Court he was convicted and sentenced, vide judgment having impugned.

5. Arguments heard and record perused.

6. It appears from the F.I.R. (Exh.PA) that in this case the occurrence took place on 28-10-2009, at about 2120 hours, whereas the report has been lodged on the same day at about 1335 hours. Mir Qabaz Khan (P.W.8) is the complainant of the present case and he has charged the appellant along with his co-accused for commission of the offence. Again it is evident from the record that the occurrence in addition to the complainant Mir Qabaz Khan is stated to have been witnessed by Aziz-ur-Rehman, who as per version of the complainant was present with him at the time of occurrence, meaning thereby that in this case the ocular account has been furnished by P.Ws. Mir Qabaz Khan and Aziz-ur-Rehman. In the circumstances the Court will have to see, as to whether they were present at the spot and have witnessed the occurrence and if so, what will be the evidentiary value of their testimony? Perusal of the F.I.R would show that as per version of the complainant, on the day of occurrence, both the deceased were on the way to their fields for its ploughing on a Tractor and that Mir Qabaz Khan complainant and P.W. Aziz-ur-Rehman were following them on foot. Deceased Taj Ali, who at the time of occurrence was boarding on Tractor, is son of the complainant Mir Qabaz Khan. The said Mir Qabaz Khan was following the tractor on foot, whereas his son Taj Ali was boarding on the same. The age of the complainant is round about, 63 years and how a son was on a Tractor and his father who has crossed the age of 60 years following him on foot is a big question mark.

7. Again it is on record that both the deceased were on the way to their landed property on a Tractor for its ploughing, but so far as the record of the case is concerned, it is silent as to whether they were having any property in Mir Ali Kalla and when cross-examined by the defence, the Investigating Officer has admitted that he has not collected any evidence which could show the ownership of the complainant regarding his landed property situated in Mir Ali Kalla.

8. It is in the evidence of the complainant that on the day of occurrence, he along with P.W. Aziz-ur-Rehman were following the deceased on foot. He has not disclosed as to for which purpose they were following the Tractor on which both the deceased were boarding. No doubt, he has stated about the deceased that they were going for ploughing their landed property, but regarding himself he has not uttered even a single word and as against that it is in the cross-examination of P.W. Aziz-ur-Rehman that along with the complainant were going to village Painda Khel for the inquiry of the health of one Zarwali and the reason is that he has tried to bring his account in conformity with the circumstances of the case i.e. to show his presence at the relevant time on the scene of occurrence.

9. It is in the evidence of the complainant Mir Qabaz Khan that they and the deceased were fired at by the accused with their respective weapons and so far as the weapons that the accused at the time of occurrence were having were the rifles of 7.62 bore. Aziz-ur-Rehman another eye-witness to the occurrence has also deposed in his cross-examination that considerable firing was made by the accused. It is also on record that all the four accused have made firing simultaneously on the Tractor and as well as on the eye-witnesses. Keeping in view the version of the eye-witnesses coupled with the site plan position and firing by all the four accused with Riffles of 7.62 bore, the escape of the two P.Ws. in the circumstances without getting a scratch on their skin is repellent to the common sense. It is very strange that both the deceased and two eye-witnesses were fired at by four accused who were armed with riffles of 7.62 bore, but the deceased received the bullets and the two P.Ws. escaped unhurt, which, on the face of it, is not appealable to the prudent mind and the only inference that on could draw from such course of events, is that, they were not present at the spot. It is in the cross-examination of P.W. Mir Qabaz Khan that after sustaining injuries by the deceased, then injured Taj Ali he was taken in the motorcar by his nephew and here the question is, how it is possible that a son was in the dying condition and the father did not accompany him and which fact gives another jolt to the presence of the complainant on the place of wardaat at the relevant time. It is in the cross-examination of the complainant that at the time of occurrence the left side of both the deceased was towards the accused. Aziz-ur-Rehman the eye-witness of the occurrence has also admitted the same. Doctor Muhammad Yaqoob (P.W.10) has conducted autopsy on the bodies of the deceased and it appears from his statement that there are four entry wounds on the body of deceased Barkatullah and that all were on his right side. Similarly there were four entry wounds on the body of deceased Taj Ali and except single entry wound at S.No.7, remaining were on his right and in this view of the matter one could easily say that the ocular account is inconsistent with the medical evidence or for that matter the version of the two eye-witnesses belied by the medical evidence. In this respect wisdom can be drawn from case "Islam Badshah and 2 others v. The State" (PLD 993 Peshawar 7). We know that the deceased when alive were not statues, but here the position is a little bit different in that almost all the entry wounds on the bodies of the deceased were on their right side.

10. It appears from the F.I.R Exh.PA that as per version of the complainant, motive behind the offence is a dispute over the thoroughfare, but it is with dismay that prosecution has not been able to prove or for that matter to produce even an iota of evidence in respect of their above version. The circumstances do reveal that the actual motive for the occurrence seems to be obscure and shrouded in mystery, the benefit of which must go to the accused. Reliance can be placed on case "Muhammad Zaman and others v. The State" (PLD 1993 Peshawar 13).

11. In this case, as stated earlier, the complainant Mir Qabaz Khan and P.W. Aziz-ur-Rehman have furnished the ocular account in respect of the occurrence, but on going through their version one could reach to an irresistible conclusion that on material points they are not consistent with each other. Both the eye-witnesses have made certain improvements in their court statements, but with no premium to the prosecution. In case of "Sikandar v. The State" (PLD 1963 SC 17), the apex Court laid down a cardinal principle by holding that whenever there remains a choice between doubting the statement of an eyewitness or that of the Investigating Officer, principle of benefit of doubt would be applicable and which must go to the accused. Again in case of "Shahbaz Khan Jakhrani v. Lal Baig Jakhrani" (1984 SCMR 42), it was held by the apex Court that the witnesses make improvement, so as to bring their testimony in conformity with the medical evidence would cast serious doubt on the veracity of their testimony. It was further held that such evidence being of a doubtful character, probabilities were that the crime was unwitnessed.

12. As per versions of the prosecution both, the complainant and eye-witnesses, were also fired at by the accused, but they escaped unhurt and it was in that background that section 324 P.P.C. was inserted in the first information report. On the other hand learned trial Court vide judgment, herein impugned, has acquitted the appellant from the said charge, meaning thereby that the learned Judge was also not sure about their presence. Needless to say that, even if, the attempt was ineffective, it could have amounted to an attempted murder. The presence of two eye-witnesses is, therefore, appears to be doubtful. Reliance can be placed on case "Aurangzeb v. The State an another" (2010 YLR (Peshawar) 1439). Again in case of Tariq Parvez v. The State (1995 SCMR 1345) it was observed by the august Supreme Court that for giving the benefit of doubt, it is not necessary that there should be many circumstances creating doubts, if there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then he would be entitled to the benefit of doubt not as a matter of grace or concession but as a matter of right, as in the instant case, where the prosecution case as discussed earlier, is pregnant with series of doubts.

13. Above are the reasons for our short order of the even date by which we have decided afore-referred matter in the following manner:-- "For the reasons to be recorded later on the instant criminal appeals (Criminal Appeal No.66-B of 2010) is accepted, the impugned judgment of the trial Court dated 13-12-2010, is set aside, resultantly, convict/appellant Khan Bahadur Khan is acquitted of the charge in case F.I.R. No.241, dated 28-10-2009, under sections 302/424/427/34 P.P.C., Police Station Domel Bannu. He be set at liberty forthwith, if not required in any other case, while Criminal Revision No 10-B of 2011, titled Mir Qabaz Khan v. Khan Bahadur and others having become infructuous is dismissed". HBT/436/P Appeal accepted.