' SAID MAROOF KHAN, J.--- The appellant Muhammad Iqbal alias Billa son of Ghulam Siddique resident of Ghonsar District D.I. Khan was tried by learned Additional Sessions Judge-I, D.I. Khan in a case registered against him under section 302, P.P.C. Vide F.I.R. No,85, dated 20-5-2002 Police Station Paroa, District D.I. Khan and was convicted and sentenced to suffer imprisonment for life and also to pay compensation amounting to Rs,1,00,000 to the legal heirs of the deceased vide judgment, dated 12-5-2005. Feeling aggrieved the convict-appellant filed Criminal Appeal No,53 of 2005 challenging his conviction and sentence while the complainant Habibullah filed Criminal Revision No,14 of 2005 for enhancement of sentence of the convict-appellant.
2. The facts of the prosecution case in brief are that on the day of occurrence at morning the complainant Habibullah and one Abdur Rashid started from their.Village Chah Pathar Wala towards village Ghonsar on their cycles while their co-villager Abdul Latif son of Haji Abdul Majid was coming back from village Ghonsar after taking milk. When at about 7-30 a.m. They reached in front of the house of Muhammad Jan son of Rabnawaz resident of Ghonsar in the meanwhile the appellant Muhammad Iqbal alias Billa accused emerged from a "Nala" (water channel) duly armed with kalashnikov and started firing at Abdul Latif which hit him and he died on the spot. After the occurrence the accused decamped from the spot. The motive for the offence as alleged in the F.I.R. Is previous blood feud.
3. The complainant reported the matter to Faqir Muhammad Amir, A.S.-L Police Station Paroa at the place of occurrence on the same day at 0915 hours. The report of the complainant was recorded in the shape of Murasila Exh.P.A./1 which was sent to Police Station Paroa for registration of the case.
On the receipt of Murasila in the police station the case was registered against the appellant vide F.I.R. Exh.P.A. On completion of the investigation challan was submitted in Court for trial of the appellant.
4. At the trial the prosecution, in order to prove the guilt of the appellant, examined sixteen witnesses and abandoned the remaining P.Ws. P.W.1 Sher Muhammad F.C. No,967 took the Murasila from the spot to the police station and after registration of the case he brought the copy of F.I.R.
And haided over the same to the Investigating Officer at the spot. P.W.2 Ramzan identified the dead body of the deceased before the doctor and police. P.W.3 Fazal Ellahi escorted the dead body of the. Deceased to the hospital for post-mortem examination. P.W.4 IChuda Bakhsh is marginal witness to recovery memos. Exh.P.W.4/1 and Exh.P.W.4/2 vide which the Investigating Officer took into possession the blood-stained earth, six empties of 7.62 bore, two bullets, one cycle and milk pot from the spot and blood-stained clothes of the deceased sent by the doctor while P.W.6 Kifayat Hussain I.H.C. Incorporated the contents of Murasila into F.I.R. Exh.P.A. P.W.7 Sanaullah M.H.C.
Executed warrant under section 204, Cr.P.C. And proclamation under section 87, Cr.P.C. Against the accused. P.W.8 Falak Sher had allegedly heard the sound of fire shot at 7-30 a.m. And after about ten minutes he saw the appellant passing through the street and saying that he had killed Abdul Latif. P.W.9 Haji Bahawal had seen the accused in a shop while purchasing cigarette at 7-15 a.m.
And later he came to know that he had killed Abdul Latif. P.W.10 Abdul Majid is also a marginal witness to recovery memos. Exh.P.W.4/1 and Exh.P.W.4/2 and he also stated about motive.
5. P.W.11 Abdul- Rashid, P.W.12 Hidayatullah and P.W.13 complainant Habibullah furnished eyewitness account of the occurrence.
6. P.W.14 Kausar Ali, S.H.O. Is marginal witness to recovery memo. Exh.P.V. Vide which the Investigating Officer took into possession kalashnikov P.1, revolver .32 bore P.2 along with 9 cartridges of 7.62 bore P.3 from the "Haveli" of one Zakriya at the pointation of the appellant. P.W.15 Shafiullah Khan, S.H.O. And P.W.16 Faqir Muhammad Amir A.S.-I. Investigated the case.
7. P.W.5 Dr. Misal Khan, Incharge Medical Officer, R.H.C. Paroa conducted autopsy on the dead body of the deceased Abdul Latif on 20-5-2002 at 10-40 a.m. And found the following:--
(1) One inlet fire-arm wound 2" below the left nipple, size 1/4" x 1/4" oval in shape.
(2) One outlet fire-arm wound below the lower border of right scapula, size 1" x 1", corresponding to wound No, 1 .
(3) One inlet fire-arm wound on anterior aspect of rt. Shoulder joint, size 1/4" x 1/4" oval in shape.
(4) One outlet fire-arm wound on posterior aspect of right shoulder joint, size 1" x 1" corresponding to wound No,3.
(5) One inlet fire-arm wound on the medial aspect of .Right upper arm, size 1/4" x 1/4" oval in shape.
(6) One outlet fire-arm wound on lateral aspect of right upper arm, size 1" x 1", corresponding to wound No,5.
(7) One inlet fire-arm wound on the sternum, size 1/4" x 1/4" oval in shape.
(8) One outlet fire-arm wound on left nipple size 2" x 2" oblique in shape, corresponding to wound No,7.
(9) One inlet fire-arm wound on the epigastrium size 1/4" x 1/4" oval in shape.
(10) One corresponding wound to wound No,9 on the posterior aspect of chest at the medial border of right scapula size 2" x 2"
(11) One graze wound on the medial aspect of left upper arm, size 6" x 2" muscle and bone deep.
Note. Charring marks seen around all the wounds orifice of inlet wounds.
Abdomen. Wall, peritoneum, mouth, pharynx and oesphagus, stomach and liver were found injured.
Thorax. Wall, ribs and cartilages were found injured. Right and left lung, pleurae and heart were injured while rt. Lt. Humorous were fractured.
Opinion. In the opinion of the doctor the cause of death of the deceased was injuries to the vital organs such as liver, heart, right and left lungs, stomach, external and internal bleeding leading to shock and death.
' Probable time between injury and death was 1-10 minutes while between death and post-mortem was 3-4 hours.
8. The appellant, on conclusion of the prosecution evidence, was examined under section 342, Cr.P.C. In his statement he denied the charge and pleaded innocence. However, he did not opt to lead any evidence in defence nor appeared himself as his own witness in terms of section 340(2), Cr.P.C. At the conclusion of the trial the learned Additional Sessions Judge-I, D.I. Khan held him guilty of the offence and accordingly convicted and sentenced him as stated above.
9. Messrs Saif-ur-Rehman Khan and Shaukat Hayat Khakwani learned counsel for the appellant contended that circumstantial evidence existing on the record is indicative of the fact that the occurrence had in fact taken place at night and nobody saw the culprit committing the murder of the deceased. Further submitted that the report of the complainant was recorded after preliminary investigation at the spot and that the alleged eye-witnesses being close relatives of the deceased and inimical towards the appellant had falsely deposed against him. It was further submitted that there are material contradictions in the testimony of P.Ws. And that their evidence is also not consistent with the medical evidence and for all these reasons the conviction and sentence of the appellant is not sustainable in law.
10. On the contrary, Mr. Muhammad Karim Anjum Qasuria learned counsel for the complainant- respondent assisted by Mr. Ghulam Hur Khan Baloch, learned counsel representing the State argued that it was a daylight occurrence and the P.Ws., whose presence at the spot was quite natural, have given true account of the occurrence and that their testimony is also receiving support by the medical evidence. It was further contended that the circumstantial evidence in the shape of recovery of empties from the spot, the crime weapon, the report of the Arms Expert and the abscondence of the accused-appellant for a period of more than three months lend support to the ocular account of the incident furnished by the three P.Ws. And that there was no mitigating circumstance justifying lesser punishment.
11. We have carefully gone through the record and considered the submissions of learned counsel for the parties.
12. According to. The F.I.R. The occurrence had taken place on 20-5-2002 at 0730 hours in the presence of Abdur Rashid (P.W.11), Hidayatullah (P.W.12) and the complainant Habibullah (P.W.13).
The distance by road between the place of occurrence and the police station is 4/5 kilometers.
However, none of the three eye-witnesses, who are close relatives of the deceased, had either gone to the police station far lodging the report or informed the police through any means. According to them they remained at the spot till the arrival of the police at 9-15 a.m. However, they have not furnished any explanation as to why and for what purpose they remained at the spot for about two hours without informing the police. In their statements they have maintained complete silence on this vital aspect of the case. P.W. Abdur Rashid has also expressed his inability to show the exact duration between the time of occurrence and the time of report.
13. P.W.16 Faqir Muhammad Amir A.S.-1. Had reached the spot along with the police party at 9-15 a.m. In his statement during the trial he stated that he was present in the police station when he received the information about the occurrence. When asked as to who had informed him about the occurrence, his reply was that he does not know the name of the informer. He deposed that on reaching the spot he had first examined the dead body, prepared the injury sheet and inquest report and then recorded the report of Habibullah complainant. According to P.W.11 Abdur Rashid the report of the complainant was recorded by the Investigating Officer after inspection of the spot.
The above statements B of P.W.11 and P.W.16 indicate that the report of the complainant was recorded after preliminary investigation.
14. In the F.I.R. The complainant Habibullah (P.W.13) stated that besides him Abdur Rashid (P.W.11) and Hidayatullah (P.W.12) had witnessed the occurrence. The presence of Hidayatullah (P.W.12) is neither explained in the F.I.R. Nor in the statements of the other two alleged eye-witnesses. The statement of Hidayatullah reveals that his cousin Juma Khan was murdered and for that crime the brother of appellant Muhammad Iqbal was charged but later he was discharged and instead he (Hidayatullah P.W.12) was involved as accused in that case and he remained in jail for about 2-1/2 years in connection with the said murder. While appearing as P.W.13 Habibullah complainant deposed that after firing the accused (appellant) decamped from the spot and in the meanwhile Hidayatullah (P.W.12) reached there. This part' of the statement of the complainant indicates that at the time of firing at the deceased P.W.12 Hidayatullah was not present at the scene of occurrence. It appears that Hidayatullah P.W. Has deposed against the appellant due to enmity.
15. The complainant Habibullah (P.W.13) stated that at the time of occurrence he, along with Abdur Rashid (P.W.11), was going to village Ghaunsar and that they saw Abdul Latif deceased coining on bicycle from village Ghaunsar. In the mean time they had also seen the appellant Muhammad Iqbal who had emerged from a "Kassi" and started firing at deceased Abdul Latif as a result whereof he fell down on the ground. Then the appellant came near the deceased then injured and again started a second round of firing from a close distance as a result of which Abdul Latif died on the spot. P.W.11 Abdur Rashid stated that he along with Habibullah was coming to village Ghanusar.
On the way near the house of Muhammad Jan there is a water course where the appellant Muhammad Iqbal came duly armed with kalashnikov and he had fired at Abdul Latif who was hit and he died on the spot. That after the occurrence the accused went in a street passing through the house of Muhammad Jan towards northern side.
16. In his statement Abdur Rashid P.W. Did not state anything about the second round of firing from a close range as alleged by P.W.13 Habibullah complainant. In cross-examination he stated that the accused-appellant fired from water course which is on the northern side of the road. In the F.I.R.
Also it is not mentioned that the deceased was fired at from a close range. The testimony of the alleged eye-witnesses is also belied by the medical evidence as Dr. Misal Khan (P.W.5) having conducted autopsy on the dead body of the deceased had found only five fire-arm entrance wounds on the dead body and all these wounds had charring marks. The deceased had not received any entrance wound from long range as alleged by P.W.13 Habibullah complainant and P.W.11 Abdur Rashid and as such the recovery of all the six empties of 7.62 bore allegedly made by the Investigating Officer from the water channel also becomes doubtful.
17. The above material contradictions in the statements of the alleged eye-witnesses and the medical evidence make the prosecution F case highly doubtful. The deceased Abdul Latif was the cousin of P.W.11 Abdur Rashid and nephew of Habibullah P.W.13. It is in the statement of P.W.13 that prior to the present case his other nephew, namely, Rehmatullah was killed and for that murder the appellant and two others were charged. Besides being relatives of the deceased Abdul Latif all the three alleged eye-witnesses had enmity with the appellant. Their alleged presence at the spot for two hours after the occurrence is not justified. Their testimony is also not receiving corroboration by any other independent reliable evidence. Their presence at the spot is highly doubtful. Had they been present at the scene of occurrence at the relevant time, at least one of them would have gone to the police station for lodging the report or they would have informed the police through any other means. The record further indicates that the report of the complainant was lodged after preliminary investigation. For the above mentioned reasons the evidence of the alleged eye- witnesses could not be explicitly relied upon. The medical evidence is completely belying the H ocular account of the incident furnished by the eye-witnesses as to manner and number of injuries inflicted upon the deceased. The hearsay evidence of P.W.8 and P.W.9 being not supported by any other reliable evidence is also ruled out of consideration.
18. The report of the Fire-arms Expert Exh.P.W.15/6 also holds no respect because the empties allegedly recovered from the spot remained in the custody of P.W.15 Shafiullah Khan S.H.O. For a period of four months and it is not proved on record as to whether the empties sent to the Arms Expert were the same as recovered from the spot or subsequently planted after recovery of the kalashnikov from the house of one Zakriya. The alleged recovery of the crime weapon i.e. Kalashnikov was also not witnessed by respectable inhabitants of the locality and as such the evidence with regard to recovery of the weapon is ruled out of consideration. As far as abscondence of the appellant is concerned, the abscondence by itself alone is not a proof of guilt.
Such a conduct is equally consistent with guilt and innocence, therefore, in the absence of any other reliable evidence the abscondence cannot be made the basis of conviction of the appellant.
19. The prosecution has miserably failed to prove the guilt of the appellant beyond reasonable doubt, therefore, his appeal is accepted, the impugned judgment is set aside and the appellant is acquitted of the charge levelled against him. Criminal Revision No,14 of 2005 has become infructuous and is accordingly dismissed.
20. The above are the detailed reasons for our short order dated 1-6-2006.