2001 P Cr (PLP)

(2) F.A. exit wound 4 in number, each 1" x 2" in size on the left side of the neck. Caranium and spinal cord dorsal spine injured. Thorax: Walls, ribs, cartilages, pleasure, larnyx and trachea, both lungs and blood vessels are injured. Abdomen All healthy. Remarks In his opinion the deceased sustained fire‑arm injury to both lungs and great blood vessels of thorax, leading to haemorrhage, shock and death. He handed over shirt, Banyan and a pellet of 50 grains m a sealed bottle with post‑mortem report to Tariq F.C. Probable time between injury and death according to his opinion was instantaneous and between death and post‑mortem examination was one to two hours. He testified the post‑mortem report as Exh.P.W.5/1 Pictorial Exh.P.W.5/2, endorsement on inquest report Exh.P W.5/3 an n injury sheet Exh.P.W.5/4. P. W. 6 Zaman Khan furnished the ocular account of the incident as mentioned above and testified to the correctness of his report Exh.P.A. He also accompanied the Investigating Officer to the spot who prepared site plan at his instance. He testified to the correctness of Exh.P.C. and Exh.P.C./1 as marginal witness whereby an empty of .12 bore and blood‑stained earth from the spot were taken into possession by the Investigating Officer. P.W.7. Subz Ali. A.S.‑I. deposed that on receipt of information about the presence of the appellant to Bazar Yar Hussain, he arrested him on 30‑12‑1994 at 15‑00‑hours and later on handed him over to the local police of the Police Station Labor. P.W.8 Samar Ali Khan stated to have registered the case against the appellant and the absconding co‑accused vide F.I.R. Exh.P.A. on the report of the complainant, prepared injury‑sheet Exh.P.W.5/4, inquest report Exh.P.W.5/3 and sent the dead body of the deceased to the hospital for post‑mortem examination On reaching the spot he prepared the site plan; Exh.P.W.8/1 at the instance of the complainant. He prepared, recovery memo. Exh.P.C. and Exh.P.C./1 whereby he took into possession one empty of .12 bore and blood‑stained earth. He also received blood‑stained garments and pellet sent by the doctor from the hospital and prepared recovery memo. in this behalf which are Exh.P.W.2/1 and Fxh.P.W.2/2 respectively.

5. On the close of the prosecution evidence, statement of the appellant under section 342, Cr.P.C. was recorded wherein he pleaded innocence and denied his involvement in the commission of the crime.

6. On conclusion of the trial the learned Additional Sessions Judge sentenced the appellant to undergo life imprisonment as Ta'zir under section 302(b), P.P.C. and to pay an amount to the tune of Rs.30,000 as compensation to the legal heirs under section 544‑A, Cr.P.C.

7. On being aggrieved by the judgment and order of the learned Additional Sessions Judge, Swabi, the appellant assailed his conviction by filing an appeal in this Court.

8. The learned counsel appearing on behalf of the appellant contended that the incident on the face of it seems to be blind and unwitnessed as ocular account furnished by the complainant is in conflict with the medical evidence; that the ocular account furnished in the Court is full of dishonest additions and improvements as according to the F.I.R., complainant and pilawar were coming out of the Hujra but according to the statement made in the Court they were coming out bf the village mosque after saying prayer; according to the F.I.R., the motive for the incident between the parties was a quarrel between the women‑folk but according to the deposition made in the Court, it was an altercation between the children and ineffective firing having been made at the deceased. He next contended that the witness who could have given an unbiased account of the occurrence has been abandoned by the prosecution and. that absconsion, if any, is not because of the involvement of the appellant in the crime but on account of fear of unjustified harassment and victimization at the hands of the police. He by concluding his arguments, submitted that the prosecution has failed to bring guilt home to the appellant beyond any shadow of reasonable doubt. On the other hand, the learned counsel for the State contended that the prosecution has established its case against the appellant beyond any shadow of reasonable doubt as the appellant has been directly charged in a promptly lodged F.I.R. and that prosecution version is by no means in conflict with the medical evidence. Besides this, he contended, that absconsion of the appellant would lend added strength to the prosecution version which clearly connects the appellant with the commission of the crime.

10. We have carefully analysed the submissions made by the learned counsel for the parties and perused the record with their able assistance. The only witness furnishing ocular account of the occurrence is P.W. Zaman Khan who is father of the deceased. Another witness namely Dilawar who is A though mentioned in the F.I.R. to have witnessed the occurrence has not been examined by the prosecution. Now it is to be seen whether P.W. Zaman has in fact seen the incident? Whether the ocular account furnished by him rings true, fits in with the surrounding circumstances and is capable of happening in the manner as described by the prosecution. When we examine the statement of the P.W. in this perspective we noticed that many things have been told by the witnesses which do not ring true, fit in with the surrounding circumstances and conform to common human experience and observation. For instance he stated that all the assailants fired at the deceased with their respective weapons but the number and dimension of the entry wounds, the number and dimension of the exit wounds on the person of the deceased as shown in the post‑mortem report and the pellet extracted therefrom would irresistibly lead to the conclusion that the same were caused by a single shot from a shot‑gun, In case there were more than one assailant the line of fire inasmuch as, it can be determined from the places of the assailants, entry and exit wounds, would have been different because slightest change in angle of fire always invariably diverts the line of fire. Even otherwise it is highly improbable that more than one person participated in the commission of the crime and they all selected the same place for firing at the deceased. Thus, it can safely be held that the ocular account furnished by the P.W. is indirect conflict with the medical evidence. B It, therefore, follows that the occurrence was not in fact witnessed by the P.W. Zaman Khan.

11. The statement of the complainant that the deceased and the P. Ws. were fired at by the assailants and that only the deceased was hit and shots on the complainant and Dilawar abandoned P. W. proved ineffective is obviously an outright lie and wholly unnatural, moreso, when in view of the distance shows: in the site plan, they were standing well within the range of the assailants. Even if, for a while, we stretch long the arm of co‑incidence to hold that the P W. was present at the scene of occurrence alongwith another person and had had a miraculous escape, in that event, we would be constrained to hold that the number of assailants was designedly swollen out of huff and enragement by the angry father of the deceased so as to rope in the person who has no involvement in the commission of the crime. In either whether the incident was blind or the net of implication was thrown too widely, the rule of prudence which has hardened into a rule of law requires strong corroboration which is woefully lacking in this case.

12. There is no denying the fact that solitary witness if his testimony is intrinsically true can be relied upon and can form basis for conviction regardless altogether of this being related to the deceased but where the version set forth in the F.I.R. has been changed beyond recognition by making dishonest additions, omissions and improvements as pointed out by 0 the learned counsel for the appellant, in that event reliance on the testimony of the solitary witness is extremely dangerous in the offences involving capital punishment particularly when Dilawar who could hopefully give independent and unbiased account of the occurrence has not been examined by the prosecution.

13. The next argument of the learned counsel for the appellant that absconsion, if any, was not because of the involvement of the appellant in the crime but, in fact, was on account of fear of unjustified harassment and victimization at the hands of the police is not without substance because even innocent persons, more than not, flee out of fear in order to void harassment and victimization at the hands of the police.

14. The arguments advanced by the learned Additional Advocate- General, in the facts and circumstances of the case and in the light of the foregoing discussion cannot stay valid and viable, more so when he could not advert to anything on the record as could enable the Court to determine with IF any amount of certainty that it was the appellant who was responsible for causing this fire‑arm injury.

15. As a sequel to what has been discussed above, we hold that the case against the appellant has not been proved beyond any shadow of reasonable doubt. We, therefore, accept his appeal, set aside the judgment and order of G the learned Additional Sessions Judge and direct the appellant to be released forthwith if not required in any other case. N.H.Q:/247/P Appeal accepted.