AKBAR KHAN Versus State

On 17-2-2002, at 12-30 noon, complainant Kachkol Khan, was on his way to his house that Akbar Khan and Aziz Khan, appellants herein, fired at the former and thus, injured him on his thigh and abdomen. On being taken to the hospital by P.W.4 and many others, he reported the incident and pursuant thereto a case under section 324/34, P.P.C. was registered against the appellants, vide F.I.R. No.93 dated 17-2-2002, Police Station Daudzai.

2. On their arrest and completion of the investigation, the appellants were sent to the Court of the learned Additional Sessions Judge-III, Peshawar for trial who on its conclusion sentenced them to 3 years' R.I. with a fine of Rs.5,000 each or in default to undergo 3 months' S.I. and to pay Rs.10,000 each as Arsh under section 324, P.P.C. vide his judgment dated 9-7-2004, hence this appeal.

3. It was argued by the learned counsel for the appellants that evidence on the record being contradictory bears ample proof of the fact that the occurrence has not taken place in the manner described by the prosecution; that the motive set up in the F.I.R. and the one stated during the trial are radically different from each other; that the doctor who medically examined the victim has not been produced in the Court despite the fact that he was posted in the Lady Reading Hospital, Peshawar at the relevant time; that no blood-stained earth or empties have been recovered from the spot; that medical evidence is in conflict with ocular testimony and that in the absence of any specification as to whose fire hit the complainant, conviction could not have been recorded that too when the tendency of the people to throw wide the net of implication is too rampant in this part of the country.

4. As against that, the learned A.A.-G. appearing on behalf of the State assisted by the learned counsel for the complainant, argued that the appellants are directly charged; that there is no previously enmity between the parties; that none of the P.Ws. has any interest or motive to falsely implicate the appellants and that the ocular account besides being consistent and confidence inspiring is fully supported by the medical evidence and abscondence of the appellants, therefore, the learned trial Court by relying on the prosecution evidence has rightly convicted the appellants.

5. I have gone through the record carefully and considered the submissions of the learned counsel for the parties.

6. According to the statements of the P.Ws. furnishing ocular account as many as 20/25 shots were fired by the appellants but not even a single empty of either of the weapons was recovered from the spot. No doubt both the P.Ws. stated that the complainant was fired at from a distance of 6/7 paces but strangely enough no exit wound was found on his person by the Doctor. It is unbelievable that a person is fired at from such a close distance with a kalashnikov or pistol and yet neither an exit is found nor the bullet is recovered from its entry wound. It, therefore, follows that the complainant was either injured by a stray bullet or that he was fired at from a distance of more than 100 and 150 paces and as such the occurrence cannot be said to have taken place in the manner described by the prosecution.

7. The conflicting motive as set up in the F.I.R. and the one recorded in the Court also sets the Court on its guards before placing implicit reliance on the testimony of the P.Ws. when according to the F.I.R., the motive for the occurrence was a quarrel which took place between the complainant and the appellants, a day before the occurrence while according to the statement recorded in the Court, it was a criminal litigation between the appellants and the brother-in-law of the complainant pursuant to an act of assault and extortion committed by the former against the latter.

8. The strangest part of the case that the doctor who medically examined the complainant never appeared in the Court to testify to the correctness of the Medico-Legal Report, on oath notwithstanding the fact that he, at the relevant time, being posted in the Lady Reading Hospital, was at a stone throw from the Court. The learned trial Court too seems to have bypassed this aspect of the case with his mind and eyes closed while permitting production of secondary evidence to prove the Medico-Legal Report which more often than not is permitted only when a witness is either dead or has gone abroad, or his attendance cannot be procured without unnecessary amount of delay and expense, which is not the case here, therefore, the inference would be unavoidable that even if the witness were produced, the would have gone against the prosecution.

9. Assuming that entire episode is true, despite the fact that it is bristling with impossibilities, yet the fact that the injuries on the person of the complainant could be a doing of one person cannot be disputed, therefore, it will not be safe to maintain conviction of the appellants when it is not specified as to whose fire hit the complainant and there is also no other supporting evidence to justify the pinning of guilt on any one of them.

10. Absence of empties and blood-stained earth from the spot is yet another circumstance which also militates in a given background of this case, against the veracity of the P.Ws.

11. With regard to abscondence, suffice it to say, that where otherwise evidence on the record is not credible and worth reliance, the mere fact that an accused remained absconder cannot remedy the defects and infirmities in the prosecution case, firstly because some times even innocent persons become fugitive from law due to fear of harassment and victimization at the hands of police and secondly because abscondence at its best can be taken as corroborative and not evidence of the charge.

12. Having thus, considered in this background, I am constrained to hold that the charge against the appellants has not been proved beyond any shadow of reasonable doubt.

13. For the reasons discussed above, this appeal is allowed, the conviction and sentence recorded by the learned trial Court are set aside and they are acquitted of the charge. They be set free forthwith, if not required in any other case.

H.B.T./445/P Appeal allowed.

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