IJAZ-UL-HASSAN KHAN, J.--Appellants Saadullah Khan alias Saida' and his cousin Sultan Ahmad alias Satan Ahmad, both residents of Wanda Gul Mir Tehsil and District Lakki Marwat, have preferred this appeal against judgment dated 20-8-2003 passed by Mr. Wilayat Ali Khan, learned Sessions Judge, Lakki Marwat whereby they were convicted under section 118, P.P.C. And sentenced to suffer five years' RI each with fine of Rs,10,000 each or in default, to undergo further SI for two months each. They were also held liable to pay an amount of Rs,20,000 each as compensation under section 544-A, Cr.P.C. To legal heirs of Khudai Nazar deceased or in default, to undergo further SI for six months each. Benefit of section 382-B, Cr.P.C. Was however, extended to the appellants.
2. Complainant Muhammad Akbar P.W has also filed Criminal Revision No,18/2003 for enhancement of sentence awarded to the appellants. Since both appeal and revision are outcome of one and the same judgment therefore both the matters are being disposed of together through this single judgment.
3. The brief facts of the case are that on the day of occurrence i,e, 21-9-2001 at 2030 hours complainant Muhammad Akbar alongwith his nephew Khudai Nazar offered `Isha' prayers in the village mosque. Khudai Nazar went towards the threshing floor in order to ease himself whereas the complainant stood outside the mosque waiting for the return of Khudai Nazar. In the meanwhile, Saadullah Khan alias Saidal and Sultan Ahmad alias Satan Ahmad already present at the venue of occurrence, fired at Khudai Nazar with Kalashnikovs, as a result of which he was hit.
After accomplishing the mission, the accused made good their escape. Previous enmity between the two group was stated to be the motive leading to the turmoil. The report was lodged the same night at 1830 hours and it was recorded by Amir Khan, I.H.C. (P.W.7). He prepared injury sheet Exh.PW7/1 and sent the victim to Rural Health Centre, Titter Khel for medical examination. He proceeded to the spot wherefrom he took into possession blood stained earth from the place of injured., eight empties of 7.62 bore giving smell of fresh discharge, a bulb of 100 watts installed in the mosque and sealed the same in different parcels in the presence of marginal witnesses. He arrested, both the accused on 24-9-2001. Injured Khudai Nazar expired on 22-9-2001. The witness in hand proceeded to RHC. Tittar Khel and prepared inquest Exh.PW7/2 of the deceased and sent the dead body to the mortuary for Postmortem examination and then handed over the case file to Amir Ahmad Khan, S.H.O. (P.W.3) who conducted the remaining investigation in the case and after its completion, submitted complete challan against the accused.
4. Dr. Muhammad Ishaq Khan, Medical Officer, R.H.C., Tittarkhel on 22-9-2001 at 6.30 a.m.
Conducted post-mortem examination of the deceased and found the following:--
1. Firearm entrance wound 4 x 4 mm in size on right side of chest, 1" above rib, 1-1/2" from sternum.
2. Fire arm exit wound on right side back in the lumber region 1-1/2" x 1" in size, near the rib margin and 2-1/2" from vertebral column. Thorax: Related walls ribs and cartilages injured and fractured. Pleura, right lung and blood vessel of chest injured. Abdomen: Peritoneum, diaphragm, stomach injured and contents the stomach food particle.
Small intestines and their contents large intestines and their contents. Liver, right kidney were injured. Time between injury and death: 2-3 hours. Time between death and post-mortem: 8-10 hours.
5. Formal charge against the appellants was framed on 8-5-2002 to which they pleaded not guilty and claimed trial. The prosecution in order to prove its case against the accused produced seven witnesses in all. The accused were examined under Section 342, Cr.P.C. They denied the prosecution allegations, professed innocence and stated that at the relevant time, they were not present in the village and detained in police lock up where they remained till 24-9-2001. They did not appear as their own witnesses on oath as required under Section 340(2), Cr.P.0 but however, produced Sanaullah Khan ASI, Muhammad Asghar FC, Asmatullah Khan F.C. And Sher Zaman constable in their defence.
6. After hearing the arguments of learned counsel for the parties and taking into consideration the material available before him, the learned trial Judge disbelieved the claim of complainant Muhammad Akbar having seen and identified the accused an proceeded to hold that the appellants are not responsible for the murder of Khudai Nazar and prosecution has not succeeded to bring home charge against the appellants. However, the appellants having been found guilty under section 118', P.P.C. Were convicted and sentenced as mentioned above.
7. We have heard Mr. Sanaullah Khan Gandapur Advocate for the appellants, Mr. Muhammad Sharif Chaudhary, Deputy Advocate-General for the State and Mr. Salimullah Khan Ranazai, Advocate for the complainant and have gone through the evidence with their assistance.
8. It has been mainly contended by learned counsel for the appellants that after holding the appellants not responsible for the murder of Khudai Nazar deceased, the learned trial Judge could not legally convict the appellants under section 118, P.P.C. For which no charge was framed against the appellants and no evidence was produced to substantiate the accusation. He also maintained that there is no evidence to connect the appellants for concealing the design to commit the offence of murder of which the names of real culprits are not known. No question was put to the appellants to have designed the murder and that concealed the said design of murder.
Additionally, he urged that it was a night , occurrence unseen' by any credible witness. There is no circumstantial or other incriminating evidence to connect the appellants with the offence. The appellants have through unrebutted defence evidence proved their presence in Judicial lock-up in another Police Station and another District till 24-9-2001.
9. The learned Deputy Advocate General contended that the prosecution has established accusation beyond shadow of doubt by producing worthy of credence and confidence inspiring evidence and the learned trial Judge has failed to take stock of the evidence produced in support of the charge which has resulted in grave miscarriage of justice.
10. Learned counsel appearing for the complainant adopted the arguments of learned Deputy Advocate-General and maintained that the evidence in this case has not been appreciated in its true perspective and the appellants have been acquitted on flimsy grounds.
11. Having heard the arguments of learned counsel for the parties, we share the view of learned counsel for the appellants that the learned trial Judge after holding that the claim of complainant Muhammad Akbar having identified the accused was not reliable and trustworthy and the appellants were not responsible for the murder of Khudai Nazar, could not legally convict the appellants under section 118, P.P.C.'for which no charge was framed against the appellants and no evidence was produced A to connect the appellants for concealing the design to commit the offence of murder of which the names of real culprits are not known. It may be noticed here that no question was put to the appellants in their statements recorded under section 342, Cr.P.C. To have designed the murder in question. How could they be convicted under section 118, P.P.C. Without asking them to clarify their position. Compliance with the provisions of section 342 of the Code of Criminal Procedure, in accordance with its terms, is essential and departure therefrom is not permissible, if some prejudice is shown to have been caused to the accused. The use of word 'shall' in later part of subsection (1) of section 342, Cr.P.0 denotes that examination of the accused is mandatory and not discretionary. The object of the examination of accused is, to give him an opportunity of explaining the circumstances which tend to incriminate him or likely to influence mind of the Judge in arriving at a conclusion adverse to him.
12. As stated earlier, it was a night. Occurrence. Complainant Muhammad Akbar is an old man of 50/60 years of age. He claims to have identified the accused in the light of bulb installed at the mosque. Keeping in view the distance between the complainant and the bulb,indicated in the site plan, we feel that the identification was not possible, the claim of the complainant was not true and could not be made basis for conviction of the appellants under sections 302/34, P.P.0 as rightly held by the trial Judge. It may not be out of place to mention here that complainant admitted in his cross-examination that he was busy in urinating at a distance of 90 paces from the mosque when he heard the report of fire shots. This circumstance also negates the assertion of the complainant having witnessed the occurrence and identified the appellants.
13. As noticed above, there is no circumstantial or other incriminating evidence to connect the appellants with the offence. The appellants have through unrebutted defence evidence proved their presence in Judicial lock-up in another Police Station in another District at the time of occurrence. We are confident that the appellants were not present at the site of occurrence and had no hand in the murder of Khudai Nazar deceased and that the claim of complainant Muhammad Akbar having witnessed the occurrence and identified the accused persons, stands belied by a host of circumstances.
14. For the above reasons, we accept the appeal and while setting aside the impugned judgment of conviction, acquit the appellants of the charge. The appellants have already been admitted to bail by this Court vide order dated 14-11-2003 during pendency of this appeal. Their bail bonds and sureties shall stand discharged.
15. Adverting to Criminal Revision for enhancement of sentence, we find that the reasons advanced by the learned trial Judge for passing a finding of acquittal being cogent and valid, are not open to exception and hardly call for interference of this Court. The revision petition fails which is hereby dismissed.