2015 PLP 1661 (YLR)

ASSADULLAH KHAN CHAMKANI, J.

Our this common judgment shall dispose of the instant criminal appeal as well as connected Cr.R. No.13-B/2012, titled, "Sabz Ali Khan v. Salim Khan and others" as both are arising out of the same judgment rendered by trial court/Additional Sessions Judge-I, Bannu, dated 23-1-2012, whereby appellant Salim Khan has been convicted under section 302(b), P.P.C. and sentenced to undergo imprisonment for life and to pay Rs.1,00,000 as compensation, within the meaning of section 544-A, Cr.P.C. to L.Rs. of the deceased, recoverable as arrears of land revenue or in default thereof to undergo 6 months' S.I. further, in case FIR No.32 dated 28-1-2010, registered under sections 302/34, P.P.C., at Police Station Mandan District, Bannu. Benefit of section 382-B, Cr.P.C. has been extended to him.

2. The prosecution case as unfolded in the FIR is that on 28-1-2010 at 1215 hours, complainant Sabz Ali Khan (P.W.6), in company of dead body of his brother Ghoas Ullah Khan, reported to Mir Ali Khan ASHO (P.W.5), on the spot i.e. "Eidan Chowk Mohallah Mandi" that on the fateful day at 10.30 a.m. he was present in his chowk (baithak), known as "Eidan Chowk", where accused Salim Khan, armed with Kalashnikov, Asif Khan and Mada Mir Jan, armed with .30 bore pistols were also present. In the meantime, his brother Ghoas Ullah, came out of the house riding bicycle towards road and when reached near the accused, he greeted the accused/offered Salam, on which the accused started abusing him. In the meantime, accused Mada Mir Jan, ordered his sons co-accused Salim Khan and Asif Khan not to spare him, on which, accused Asif Khan pull down Ghoas Ullah from his bicycle, while accused Salim Khan opened fire at him, with which he was hit and died on the spot. The occurrence is stated to have witnessed by complainant. Motive behind the occurrence as stated by complainant is salutation (Salam) of the deceased then injured on the accused.

3. After completion of investigation, challan was submitted against the accused before the learned trial court, where they were charge sheeted to which they pleaded not guilty and claimed trial. In order to prove guilt of the accused, prosecution examined as many as ten witnesses. After closure of the prosecution evidence, statements of the accused under section 342, Cr.P.C. were recorded wherein they denied the prosecution allegations and professed their innocence. They, however, declined to be examined on oath under section 340(2), Cr.P.C. as their own witnesses or to produce evidence in defence. On conclusion of trial, the learned trial court, after hearing both the sides, acquitted accused Mada Mir Jan and Asif Khan, however, convicted appellant Salim Khan, as mentioned above.

4. Learned counsel for the appellant argued that impugned judgment of the learned trial Court is the result of misreading and non-reading of evidence available on record; that complainant who is posing himself to be the eye-witness of the incident has not established his presence on the spot; that the occurrence has been reported with inordinate delay for which no explanation, much less plausible one has been furnished by the complainant and in the circumstances it can be safely concluded that delay has been occurred due to consultation and deliberation to falsely implicate the accused; that ocular account does not find support from medical evidence and other pieces of circumstantial evidence; that prosecution evidence is pregnant of doubts, benefit of which is to be extended to the accused not as a matter of grace or concession but as a matter of right and he be acquitted of the charge.

5. As against that, learned counsel for the complainant while controverting the arguments of the learned counsel for the appellant contended that accused/appellant has been directly charged in a broad daylight occurrence for murder of the deceased with specific role of effective firing; that complainant is the natural witness of the incident and has furnished the true account of the occurrence which is corroborated by other circumstantial evidence coupled with autopsy report of the deceased. He went on to say that the prosecution has proved the guilt of the accused/appellant through cogent and confidence inspiring evidence and when the learned trial Court declared him guilty of the offence, then the trial Court ought to have awarded him the maximum sentence of death as there is no mitigating circumstance, which may call for any leniency in the quantum of sentence. He sought, dismissal of the appeal and requested for acceptance of the revision petition for enhancement of sentence.

6. Learned Additional Advocate-General adopted the arguments of the learned counsel for the complainant and sought dismissal of the appeal.

7. We have given our anxious consideration to the respective submissions of both the sides and perused the record.

8. Perusal of the FIR reveals that the occurrence has taken place at 10.30 a.m. in Eidan Chowk (baithak) of Mohallah Mandi, situated at a distance of 5/6 Kilometers from Police Station Mandan, while it has been reported at 12:15 p.m. i.e. after a delay of 1 hour and 45 minutes. The distance of 5/6 Kilometers can easily be covered within 30 minutes. The complainant has not furnished any explanation, much less plausible one in his report to justify the delay. He has also not given any explanation in his statement recorded as (P.W.6) qua delay in reporting the incident. Rather, in his cross-examination in reply to a question of defence about time of occurrence and time of report, he in order to cover the delay of 1 hour and 45 minutes, voluntarily added/introduced some new story that after the occurrence, he first proceeded to Police Station Mandan which was in demolished condition where he was told that the said Police Station is functioning in old building of Police Station City Bannu; that he narrated the occurrence to Mir Ali Khan ASI, who directed him to go back to the spot and he would come after him, resultantly, he proceeded back to the spot, and soon after his arrival, Mir Ali Khan ASI also reached the spot where his report was recorded. Not a single word has been mentioned by the complainant in his report about his visit to Police Station and then coming back to the spot. Similarly, Mir Ali Khan ASI, who appeared as P.W.5 has not stated a single word to justify the story of visit of the complainant to Police Station Mandan and then his coming back to the spot. Further cross-examination of complainant P.W.6 reveals that he is blowing hot and cold in the same breath. He deposed that first he proceeded to demolished Police Station Mandan in a Rickshaw where he reached within 5/10 minutes; from Police Station Mandan he came to the old building of Police Station City in a Rickshaw within 20/25 minutes and from there he went back to the spot within 25 minutes. In his voluntarily added stance, he has not stated that he went to Police Station City. Again, he deposed that police arrived to the spot before his arrival. All these hot and colds on the part of the complainant clearly prove that he has just tried to cover the delay, but his justification does not appeal to a prudent mind. In the circumstances, it can be safely held that 1 hours and 45 minutes time has been consumed in deliberation and consultation.

9. Dr. Khalid Jan DHQ Hospital Bannu, who conducted autopsy on the dead body of deceased Ghoas Ullah, appeared as P.W.1. He deposed that on 28-1-2010 at 1.40 p.m. he conducted postmortem on the dead body of the deceased, brought by constable Manzoor Khan No.419 and identified by Siraj Khan and Naimatullah. He found 4 entrance and 4 exit wounds on different parts of body of the deceased and opined that the death of the deceased was caused due to firearm injuries to his brain and heart. He has given probable time between injury and death as (within 10 minutes) while between death and postmortem (0 to 1/2 hours i.e. 0 to 30 minutes), which totally negates the time of occurrence i.e. 10.30 a.m., as mentioned by the complainant. If we presumed the time of occurrence as 10.30 a.m. as alleged by the complainant, to be true, then the postmortem time would come to 11.00 a.m. and if we presume the time between injuries and postmortem, as given by the medical officer to be true, i.e. 0 to 30 minutes, then he conducted postmortem at 1.40 p.m. so excluding 30 minutes from 1.40 p.m. the time of occurrence would come to be 1.10 p.m. Thus, the medical evidence does not support the version of the complainant rather totally negates the time of occurrence.

10. While appearing as P.W.6 complainant reiterated the contents of his report and also added that site plan was prepared at his instance by the I.O. and during spot inspection the I.O. secured blood from the place of the deceased, China marka cycle of the deceased stained with blood vide recovery memo Exh.P.W.6/1 and 2 crime empties of 7.62 bore from the place of accused Salim, lying in scattered position on the spot vide memo Exh.P.W.2/2. He stated that the last worn bloodstained clothes of the deceased were also taken into possession by the I.O. in his presence vide recovery memo Exh.P.W.2/3. In the site plan Exh.PB, the deceased has been shown at point No.1 while the appellant at point No.4. The distance between the deceased and appellant has been shown as 7 paces. Accused Asif, who is brother of appellant Salim and son of accused Mada Mir Jan, has been shown at point No.3, who allegedly pull down the deceased from his cycle. The distance between accused Asif and deceased Ghoas Ullah has been shown as 1 pace. In the circumstances, how co-accused Asif remained safe from the firing of co- accused Salim Khan nevertheless he was at a distance of one pace from the deceased, which does not appeal to a prudent mind. Moreover, accused Salim Khan is real brother of co-accused Asif, and no brother would take a risk to fire on his target with an automatic weapon like Kalashnikov to put the life of his brother at stake being in close proximity of a single space from the deceased. This version of the complainant totally seems unnatural and improbable. Moreover, complainant in his cross- examination categorically deposed that at the time of firing by accused Salim Khan at his brother, the back of his brother was towards the firing side and no firing was made upon him from front side. This version of the complainant has been totally negated by the Medical Officer Khalid Jan, who conducted autopsy of the deceased. He deposed that there is no inlet injury caused by the deceased from back side rather all the injuries are from front to back.

11. From the above discussion, we are of the firm view to hold that complainant is not the eye-witness of the occurrence. He has not established his presence at the spot. Rather, the peculiar facts and circumstances of the case prove that he is a procured witness. Neither the medical evidence nor other circumstances of the case corroborate his version. His statement is full of contradictions and discrepancies creating serious doubts in the prosecution case and that the occurrence has not taken place in the mode and manner as alleged by the complainant.

12. As regard recovery of 2 crime empties of 7.62 bore. No doubt, the role of firing at Kalashnikov has been attributed to appellant/accused and the aforesaid crime empties have allegedly been shown recovered from his place, but suffice it to say that being a corroborative piece of evidence, it would not be safe to be relied upon, when the direct evidence of the prosecution has been disbelieved being pregnant of doubts, therefore, the same cannot advance the case of the prosecution. Reliance placed on case titled, "Muhammad Jamil v. Muhammad Akram and others" (2009 SCMR 120).

13. So far as motive is concerned. The complainant has advanced an amazing motive i.e. when the deceased greeted the accused, they annoyed, which resulted in the present occurrence. From the day of his report till recording of his statement, the complainant remained stuck on the motive to be offering of salutation by the deceased to the accused and slurring language of the accused. It does not appeal to our mind that why a father with two sons would take the life of an innocent person, without any reason, just on paying/offering salutation. The accused are sons and father inter se and muslims by religion. Being living in a Muslim society, believers of one Allah and the followers of the Holy Prophet Muhammad (PBUH), no father would order his sons to react/take the life of an innocent muslim on paying salutation/salam.

14. The requirement of the criminal case is that prosecution is duty bound to prove its case beyond any reasonable doubt and if any single and slightest doubt is created, benefit of the same must go to the accused and it would be sufficient to discredit the prosecution story and entitle the accused for acquittal. It is 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. Reference can be made to case titled, "Tariq Pervaz v. The State" (1995 SCMR 1345) and case titled, "Muhammad Akram v. The State" (2009 SCMR 230) Moreover, accused is always considered as the most favourite child of law and every benefit of doubt goes to him regardless of the fact whether he has taken any such plea or not. In this regard "Faryad Ali's case "2008 SCMR 1086) can be referred.

15. So far as abscondence of the accused is concerned, prosecution cannot seek support from factum of abscondence of accused when eye-witnesses have not established their presence at the spot and their testimonies have been disbelieved being pregnant of doubts and suffering from material contradictions. Mere absconsion is not a conclusive proof of guilt of accused person. It is only a suspicious circumstance against an accused that he was found guilty of the offence. However, suspicions after all are suspicions. The same cannot take the place of proof. The value of abscondence, therefore, depends on the facts of each case. The absconsion of the accused may be consistent with the guilt or innocence of the accused, which is to be decided keeping in view over all facts of the case. Mere abscondence of accused could not be made the basis for his conviction as accused could run away due to fear or suspicious circumstances. No doubt, abscondence is 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. Reliance placed on case titled "Rohtas Khan v. The State" (2010 SCMR 566), "Rahimullah Jan v. Kashif and another" (PLD 2008 Supreme Court 298).

16. In light of our above discussion, we would not hesitate to hold that the prosecution has miserably failed to bring home the guilt of the appellant-accused through cogent, straightforward and confidence-inspiring evidence and the learned trial Court has totally over sighted the material pieces of evidence creating serious doubts in the prosecution case and thereby reached to a wrong conclusion by convicting and sentencing the appellant-accused. Resultantly, this appeal was allowed, and the following short order of the even date was passed which is reproduced below:-- "For the reasons to be recorded later on, we allow this appeal, set aside the conviction and sentence of appellant/convict Saleem Khan recorded by the trial Court/ Additional Sessions Judge-I, Bannu vide impugned judgment dated 23-1-2012 in case FIR No.32 dated 28-1-2010 under sections 302/34, P.P.C., Police Station Mandan Bannu, and hereby acquit him of the charges levelled against him. He be set at liberty forthwith, if not required in any other case. On acquittal of the appellant/convict, connected Cr. R. No.13-B/2012, has become infructuous, which stands dismissed as such." HBT/285/P Appeal allowed.