P L D 2009 Peshawar 10 (PLP)

SYED YAHYA ZAHID GILLANI, J.

Akbar Ali injured with the shots of pistol, reported to Lal Roz Khan, S.-I. at 1830 hours that he was fired at by Arshad son of Feroz Shah at 17.15 hours when he was riding on bicycle towards his village, over Khasaray Kanday Road, near graveyard. The report was reduced into writing in the shape of murasila Exh.PA/1, whereupon the case was registered and the investigation was done.

2. The single accused denied the charge and the prosecution -produced ten witnesses in addition to the documentary evidence which convicted the trial Court about his guilt, who was convicted under section-324, P.P.C. and sentenced to seven years' R.I. with fine of Rs.10,000 and in default to six months' S.I., and also convicted under section 337-D, P.P.C. and sentenced to three years' R.I., and payment of 1/3 of Diyat amount as Arsh to injured, by Mr. Muhammad Sabir Khan, Additional Sessions Judge-II, Mardan at Takht Bhai, vide his judgment dated 5-12-2006 impugned in this appeal.

3. I have heard arguments of Mr. Khawaja Muhammad Khan Gara, Advocate, for the convict-appellant, Mr. Noor Alam Khan, Advocate, for complainant and Mr. F.M Sabir, Advocate, for the State. Record has been consulted.

4. This is a case of single accused and a single injured P.W. The trial Court has convicted the appellant giving weight to the testimony of injured complainant corroborated by medical evidence.

5. The complainant Akbar Ali was examined as (P.W.9). According to the statement of Dr. Zubair Shah (P.W.4) there was two entrance and two exit wounds on his person; caused by fire arm. This proves the statement of Akbar Ali complainant that he was fired at.

6. The injured complainant next deposed that he was fired at Khasaray Kanday Road at 1715 hours by Arshad accused. Since, admittedly there is a previous enmity between the parties and as such the complainant is inimical towards -the accused, his statement cannot be taken as gospel truth and circumstantial corroborative evidence is required to augment his version, on all material points.

7. As far as the venue of occurrence is concerned, no blood or spent bullets were recovered from the spot. When we go through the statement of complainant (P.W.9) a clear impression can be gathered that after the assault no one else came on the spot, till the arrival of police. This is possible because the occurrence took place in the month of Ramzan at 1715 hours and the sun set time was 1735 hours. In such circumstances people normally reach their houses well before sun set time, for Aftari. Non recovery of empties from the spot is astonishing in these circumstances because there was no usual interference at the scene of occurrence. Moreover, the medical evidence reveals that one entrance and exit wound was in the chest of complainant and the second at buttock. Internally, there was diaphragm tear, perforations in transverse colon and spleen lacerated too. In normal course blood was supposed to ooze out, but no blood was recovered from the spot, where the complainant was allegedly hit, nor on the bicycle on which he was riding, nor from the Sugarcane crop where the complainant admittedly took refuge for about 45 minutes. In this state of affairs the venue of occurrence is shrouded in doubt and it cannot be decided with certainty that the occurrence took place at the pointed place. Similarly, according to (P.W.4), Dr. Zubair opinion the occurrence took place 4 hours prior to the examination of complainant. On, calculation, it appears that occurrence took place at 3-00 p.m. This is direct in conflict with the testimony of complainant. So, his statement is not getting corroboration from circumstantial and medical evidence about the venue and time of occurrence.

8. The report was also recorded in very doubtful circumstances. The complainant (P.W.9) says that when the accused decamped, he took refuge in the Sugarcane crop, at a distance of about 50 yards. If the accused decamped, then what was the need of taking refuge in the Sugarcane Crop. No plausible answer to this question is available and it appears that the complainant was hoodwinking to cover delay in lodging report. No trail of blood was found from the road up to the place in the Sugarcane crop, where the victim allegedly stayed for 45 minutes and then came out. He does not say anything about mode of communication of the incident to police. Rather his statement gives impression that no body met him in the period from assault up to the arrival of police. It is not understandable that how police got informed. In this respect Lal Roz (P.W.5) says that he was on gasht and informed on pocket phone about the occurrence from Police Post Saro Shah and he went to the spot. This police officer could not show the exact place, where the report was recorded, but on this point there is a material contradiction in between the statement of Akbar Ali complainant and the scribe of murasila. Akbar Ali complainant says that when he came out from the Sugarcane crop to road side, the police came and he reported the incident. The scribe of the report says that he cannot give the distance in between the place, where he received the information and the place of occurrence. Meaning thereby that the place of occurrence was away from the place of report. If he is true, how the injured reached up to the place of report, which is obviously different because the scribe of the report says that he reduced the report into writing in the light of torch and the bulb installed where the complainant made report and many people had attracted to the place of report. If we have a glance over the site plan related to the place of occurrence, there is no mention of any bulb installed over there. So, the conclusion is that the report was recorded and the police arrived on the spot in extremely mysterious circumstances, which do not fit in the version of the complainant.

9. The site plan of the occurrence was prepared after so many days when the complainant recovered after treatment. He did not point out the place in the Sugarcane crop, where he had taken refuge. The Investigating Officer, (P.W.10) Javed Shah took in possession the bicycle from the spot, but the articles purchased by the victim and carried along with him to his village were not available and not taken in possession.

10. Another very important fact can not be ignored because it is an admission by the complainant himself. He said in the cross-examination that he was lying on the road side and his report was recorded by the police on that very place. His relatives' and police arrived to the spot at one and the same time. When his relatives came to spot, he was not in senses and then he came to senses after 5-6 days of the occurrence. This admission on the one hand negates the statement of the scribe of murasila that the report was recorded at a place where a bulb was installed, and also provides sufficient evidence that the victim had become unconscious and probably, on arrival of police, his relatives nominated the convict-appellant due to previous enmity.

11. The doubtful circumstances revolving around this incident lead to the hypothetical probability that the complainant was fired at from some one, who had ambushed in the graveyard's cluster of bushes. The victim fell down and probably he was unconscious. He remained on the spot for considerable time, because no body passed by him as the occurrence took place near "Aftari" time, in Ramadan Sharif. When the police arrived in the unknown circumstances, the unconscious complainant was shifted to Hospital and a case was concocted to cover up delay in lodging report. This hypothetical view is bound to be given importance because the statement of injured complainant is not getting corroboration from circumstantial evidence to prove the alleged venue of occurrence, time of occurrence, as well as the circumstances in which the police was informed. This place where the report was recorded is also highly doubtful. The statement of complainant and the scribe of report are indicating two different places, where the report was recorded.

12. In these facts and circumstances, no doubt the complainant was fired at, but the remaining episode of complainant could not be proved beyond, shadow of doubt which also cast serious doubt on nomination of accused-appellant, against whom motive for false charge exists due to previous enmity. So, the benefit of doubt in this regard must go to the convict-appellant.

13. I, therefore, extend benefit of doubt to the convict-appellant and by accepting this appeal acquit him from the charge levelled against him. H.B.T./165/P Appeal accepted.