' ABDUL AZIZ KUNDI, J.--- Hafizullah son of Zarwali having been tried and convicted by Additional Sessions Judge-I, Lakki Marwat for offence under section 302, P.P.C. Vide F.I.R. No,71 dated 1-5-2005 of Police Station, Tajori and found guilty of committing `Qatl-i-amd' of Mir Azam and sentenced under section 302(b), P.P.C. To death as `Taazie and in addition to pay rupees one lac as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C., which were ordered to be recovered from the convict-appellant as arrears of land revenue or in default of payment of such compensation to suffer simple imprisonment for a period of six months. Criminal Appeal No,54 of 2008 is directed against the said judgment by the convict-appellant while Murder Reference No,3 of 2008 has also been received for confirmation of death sentence awarded to the convict-appellant.
2. Akhto Jan complainant has filed Criminal Revision No,15 of 2008 against Hafizullah appellant for enhancement of the compensation awarded by the learned Additional Sessions Judge-I, Lakki Marwat.
' All the three matters are being disposed of through this judgment.
3. The facts, precisely stated, are that on 1-5-2005 at 2050 hours Akhto Jan son of Shahzada resident of Village Tajori took the dead body of his brother Mir Azam to Police Station, Tajori and reported that tonight he along with his brother Mir Azam left their house to that of their maternal- uncle and while on their way in the thoroughfare when they reached opposite Chowk Bangash Khel at 2015 hours, all of a sudden Hafizullah son of Zarwali, their co-villager; armed with kalashinkov, was seen by them, who on seeing them fired at his brother Mir Azam, who was hit by the said firing and fell on the ground; that Hafizullah aforesaid after committing the occurrence ran away from the scene and that he, the complainant, being empty-handed, could do nothing; that his brother Mir Azam after some time breathed his last. Motive for the offence was stated to be a raid by police conducted at the house of Hafizullah a few days back, for which he suspected Mir Azam to be instrumental and claimed no other motive.
' On this, case. No,71 dated 1-5-2005 was registered in the said police station at 2115 hours against the aforesaid convict-appellant.
4. The local police started investigation and P.W. Mumtaz Khan S.-I/LBI Tajori proceeded to the spot and prepared the site plan on the pointation of complainant Akhto Jan.
5. The accused charged in the F.I.R. Went into hiding and proceedings under section 512, Cr.P.C.
Were initiated and completed against him. He was later on arrested on 17-5-2006 during a raid on his house by the police.
6. On commencement of trial, prosecution produced eight P. Ws. P.W.1 Akbar Ali Khan, S.-I. Police Staton Lakki Marwat, posted at Police Station Tajori during the days of occurrence, who had been given custody of the accused on his arrest by Latifullah Khan, A.S-I and had recorded his statement under section 161, Cr.P.C. And submitted supplementary challan against him.
' Again P.W.1 Muhammad Ismail No,78, who was posted as such during the relevant days, escorted the dead body of the deceased from Police Station to RHC Tajori and later on had brought back the post mortem documents, along with blood-stained 'Banyan' and 'Qamees' given to him by the doctor, which he handed over to the Investigating Officer and his statement under section 161, Cr.P.C. Was also recorded by the Investigating Officer at that time.
7. P.W.2 is Amanullah Khan, A.S-I., Police Station Dadiwala, who was during the relevant days posted at Police Station, Tajori and is a marginal witness to recovery memo. Exh.P.W.2/1 vide which the Investigating Officer took into possession blood-stained earth from the place of deceased.
Similarly, in his presence the Investigating Officer took into possession one `Qamees' P.1, one 'Banyan' P.2, which were blood-stained and having cut marks, brought by Ismail Khan Constable from the doctor and sealed by the Investigating Officer into parcel Exh.P.W.2/2. He stated that all the recovery memos correctly bear his signatures. In cross-examination he has stated to have reached the place of occurrence at 2100 hours and remained there till 2400 hours.
8. P.W.3 is Gul Rehman No,183 Police Station Rezu, who during the relevant days was posted at P.S. Tajori as DFC and had been entrusted with warrants under section 204, Cr.P.C. Against Hafizullah, who stated to have searched him in his house, village and in surrounding area but the accused had wilfully avoided his lawful arrest and had recorded the statements of witnesses on the back of the warrant, which along with his report is Exh.P.W.3/1. He was also entrusted with the proclamation under section 87, Cr.P.C. And after due publicity the same was returned by him, which along with his report is Exh. P. W.3/2.
9. P.W.4 Muhammad Ishaq, who had conducted autopsy of the deceased confirmed his post- mortem report Exh.P.M. And had found the following injuries on the person of the deceased:--- ".(1) Fire-arm entrance wound 4x4 mm in size on right side back, some what laterally 7" from vertebral column, and 3" above upper border of right buttock.
(2) Fire-arm exit wound 1" x 1/2" in size on right side abdomen 5" from mid line and 2.1/2" below the rib.
(3) Fire-arm wound 4x6 mm in size on left side back, 1.1/2" on mid line and 2" from the level of inferior angle of left scapula (this is an entrance wound of 4 x 4 mm but mistakenly typed as exit, reference Post-Mortem report Exh.P.M.) (Observation by Court).
(4) Fire-arm exit wound 2" x 2.1/2" in size on front of left side chest, 2" from mid line and 4" from left nipple, horizontally placed, and 8" from clavicle.
Thorax. Related walls, ribs and cartilages were injured and fractured. Pleura left lung, pericardium and heart and blood vessels of chest were injured.
Abdomen. Related walls were injured. Peritoneum, small intestines and their contents, large intestines and their contents and right kidney were injured.
' The stomach was normal and full of undigested food.
Opinion. In my opinion the deceased sustained fire-arm injury to left lung, heart blood vessel of chest, blood vessel of abdomen causing haemorrhage, shock and death.
' Time between injury and death within 30 minutes ' Time between death and P.M. 8 to 12 hours."
10. P.W.5 examined was Afsar Khan, who had identified the dead body of deceased Mir Azam both before the doctor as well r as police.
11. P.W.6 is Zafarullah Khan, S.-I., Incharge LBI, Police Station, Lakki, who during the relevant days was posted at Police Station Tajori and had registered the F.I.R. As per report of complainant Akhto Jan, which F.I.R. Is Exh.P.A., while injury sheet prepared by him is Exh.P.W.6/1 and inquest report Exh.P.W.6/2.
12. P.W.7 is the complainant Akhto Jan, who in his examination-in-chief repeated what he had stated in his report Exh.P.A. He has also confirmed that fact that during investigation the site plan Exh P.B. Was prepared by Investigating Officer at his instance and that blood-stained earth was also recovered at that time, vide recovery memo. Exh.P.W.2/1 and that he is a Marginal witness to the said recovery memo, which bears his signature. During his cross-examination he stated that he cannot tell the time of departure from his house. However, he knew it to be 8-15 hours when reached the place of occurrence and that his house is to the North of the place of occurrence. The distance between the place of occurrence and his house was stated to be above half a mile or less while the house of his maternal uncle was stated to be at a distance of seven poles (Daang) from the spot and that the house of his maternal uncle is situated towards the South of the place of occurrence and that they at the relevant time were proceedings towards South; that the accused was seen by them from a distance of ten paces but the moment they saw him, he started firing at them; that the place where occurrence took place is not a straight thoroughfare but it is a Chowk.
The deceased was stated to be seven paces ahead of this P.W. Towards South and that the accused made a single burst of firing and within a minute the firing was over and he took shelter near the wall of the mosque at the time of firing. He also admitted that the spot of occurrence is surrounded by houses and is thickly-populated but nobody was present in the thoroughfare or at the place of occurrence and so was none present in the `Baithak' of Mir Janan, Tila Muhammad and Gul Nawaz but after the occurrence many persons attracted to the spot; that they had been called by their maternal uncle and had no business of their own for the said visit and that the distance between the police station and place of occurrence would be' twenty poles, one pole equal to 5.1/2 feet. He refuted the suggestion that his brother was done to death inside the house of Gul Nawaz and later on his dead body was placed in the street near the house of Gul Nawaz. As regards motive for false implication, he stated as under:-- "It is incorrect to suggest that we have common landed property. We have no landed property, self stated that we have 40 Kanals landed property. I cannot give true account of the landed property of accused. It is incorrect to suggest that we have claim of landed property against the accused party and just for pressurizing them. I have falsely charged (the whole suggestion is incorrect)."
' He also denied the suggestion that his deceased brother was taken to Police Station by some unknown persons and that he was later on procured to become complainant in the case. He further stated in the cross-examination that Investigating Officer was having no torch as there was a bulb, which was shedding light on the spot but did not know as to whether the said bulb was taken into possession by the Investigating Officer or not.
13. Lastly was examined P.W.8 Mumtaz Khan, 5.-I. (Rtd.) who was during the days of occurrence posted as S.-I. /LBI in Police Station, Tajori and after the registration ,'of the F.I.R. He was entrusted the investigation and he accordingly proceeded to the spot and prepared the site plan Exh.P.W.8/1 at the instance of complainant Akhto Jan P.W.7 and had also taken the blood-stained earth through the recovery memo. Exh.P.W.2/1 while the blood-stained earth Exh.P.1. He had also searched for the accused but neither the accused was found in his house, nor any incriminating articles were recovered from his house. He also took into possession one `Qamees', one 'Banyan' Exh.P.W.1/2, having blood stained and corresponding cut marks belonging to the deceased and sent by doctor through recovery memo. Exh.P.W.2/2 and had also recorded statements of P. Ws. Under section 161, Cr.P.C.; obtained warrant under section 204, Cr.P.C. Vide application Exh.P.W.8/2; applied for proclamation notices under section 87, Cr.P.C. Vide application Exh.P.W.8/3 and placed the FSL result regarding bloodstained earth in respect of the garments, which is Exh.P.W.8/4. After completion of investigation, he handed over the case file to S.H.O. For proceedings under section 512, Cr.P.C. In his cross-examination, this witness has stated that he had twenty years experience in investigating criminal cases and that as an Investigating Officer it was his duty to mention each and every thing which relates the occurrence; that he was having two torchs at the time of investigation, with the help of which he had prepared the site plan and that there were also bulbs which were enlightened in the nearby houses and that the place of occurrence is situate in a straight thoroughfare surrounded by houses. He has admitted it as correct that there were no street lights but the bulbs were above the houses and that he has not mentioned in the site plan about the said bulbs. He has denied the suggestion that for the purposes of identification he has introduced the above mentioned bulbs in his statement and has admitted the fact that all the points i.e. Place of accused, place of deceased and complainant are correctly prepared by him at the pointation of complainant and had measured himself the distance between each point; that complainant and the deceased were proceeding towards North at the time of occurrence and the spot of occurrence is surrounded by `Baithaks' and houses; that he has not measured the height of the wall of Tila Muhammad but it was equal in height to the level of the ordinary houses and that if firing is made from Point No,3 on Point No,1 and the shot is missed, then the said wall of the 'Baithak' of Tila Muhammad will come in the firing range and that he had found no bullet mark on the said wall;, that he had not recorded statement of Akram Khan, maternal uncle of the deceased, nor of anybody else from the locality in respect of the occurrence. He has also stated that accused Hafizullah was already proclaimed offender in a case under section 302, P.P.C. But copy of the F.I.R.
For the said case has not been placed on the judicial file of this case. He has denied the suggestion of having prepared the site plan at his own instance. He has also denied the suggestion that the complainant P.W.7 was not present and was procured later on and that after spot inspection the F.I.R. Story was manipulated against the present accused with the connivance of complainant and S.H.O. Of Police Station Tajori.
14. After the close of prosecution evidence, convict-appellant, then accused, was examined under section 342, Cr.P.C. Who stated that complainant P.W.7, the sole eye-witness of the occurrence is highly interested and he is a procured witness and that he has been charged by him because he has a claim of landed property against the convict-appellant's father. He has denied to produce any defence evidence or to be himself examined on oath in terms of section 340(2), Cr.P.C.
15. On conclusion of the trial, the learned Additional Sessions Judge-I, Lakki Marwat, vide his judgment dated 10-7-2008 recorded the conviction and sentences, as stated in the opening part of this judgment.
16. We have heard the learned counsel for the convict-appellant, learned counsel for the complainant and the learned Deputy Advocate-General.
17. It was contended by learned counsel for the appellant that from over all analysis of the evidence, it is an unseen occurrence and that complainant Akhto Jan P.W.7 had in fact not witnessed the occurrence but was procured later on, who charged the convict-appellant having a land dispute with him; that the story as put forward by the prosecution is not supported by the site plan Exh.P.W.8/1, which was prepared by P.W.8 at the pointation of complainant P.W.7, namely, Akhto Jan; that P.W.8 Investigating Officer has in his statement stated that the deceased and the complainant were proceeding towards North while complainant P.W.7 has stated that the house of his maternal uncle is situate towards South of place of occurrence while their house towards North of the place of occurrence and that they were proceeding from North to South; that as per the statement of complainant, the deceased was ahead of him by seven paces towards South but in the site plan Exh.P.W.8/1 the deceased has been shown at Point No,1 and the complainant P.W.7 at Point No,2, which would suggest that the complainant was ahead of the deceased. Further it was stated that the complainant has stated that he took shelter near the wall of the mosque at the time of firing and when looked into this statement of the complainant in the light of the site plan, then it was humanly impossible for complainant to take shelter near the wall of the mosque as by doing so he had to cross the convict-appellant at Point No,3. It was accordingly argued that because of these discrepancies the occurrence appears to have not been witnessed by anybody and that in fact deceased had been done to death somewhere else but after death placed at the place where now the occurrence is claimed to have taken place: It was further argued that the sole eyewitness, complainant P.W.7, has stated that the convict-appellant made a single burst of firing and within a minute the firing was over; that as admitted by P.W.8 the Investigating Officer the wall of the `Baithak' of Tila Muhammad was in the firing range of the convict-appellant and, therefore the shots which missed the deceased had to hit the said wall but the Investigating Officer had found no bullet marks on the said wall and that in spite of a burst of firing through a 7.62 bore klashnikov not a single empty has been recovered from the place of the occurrence. Lastly, it was argued that with regard to the false charge against the convict-appellant, the complainant P.W.7 has not been consistent and reference was made to the relevant portion from his cross- examination and accordingly it was argued that because of their being a land dispute, the convict-appellant was falsely charged and that the motive as alleged by the complainant has not been proved at all. Learned counsel for the convict-appellant argued that in view of the above, the complainant P.W.7 has been proved to be an interested witness, besides being the brother of deceased; that he has tried to make improvements on the F.I.R. It was also argued that going into hiding of the convict-appellant was a conduct which normally an accused charged for murder adopts because of fear. Reference was also made to the injuries on the body of eceased vis-a-vis the statement of the complainant and non-recovery of bulbs shedding light during spot inspection.
18. Learned counsel for the complainant argued that the charge against the convict-appellant has been proved beyond any shadow of doubt and that site plan has not been put to P.W.7 complainant and that the deceased, a human being, was not a static target but must have changed his position on seeing the convict-appellant aiming his weapon towards him; that non- recovery of bulbs shedding light at the time of spot inspection by the Investigating Officer is not a fact which should be made a basis for upsetting the conviction recorded by the trial Court; that P.W.7 Akhto Jail though real brother of the deceased but has not been proved to be an interested witness and accordingly he argued that conviction and sentence awarded by the trial Court be maintained.
19. Learned Deputy Advocate-Geperal adopted the arguments of learned counsel for the complainant.
20. Arguments heard. Record perused.
21. In this case the only eye-witness complainant Akhto-Jan P.W.7 is the real brother of the deceased Mir Azam and who in his statement on oath stated that the site plan Exh.P.W.8/1 (also referred to as Exh.P.B. In the statement of P.W.7) was prepared by the Investigating Officer at his pointation and a look at the site plan would show that the complainant and deceased were proceeding from North to South to reach the house of their maternal uncle Akram Khan and as per statement of the complainant, the deceased was ahead of him by seven paces while the site plan Exh.P.W.8/1 would show that the complainant was at Point No,2, which is ahead of Point No,1 towards Southern side and thus there is contradiction in the statement of P.W.7 and the site plan. As against that, P.W.8, the Investigating Officer has stated that the deceased and the complainant were going towards North. Similarly, except for bloodstained earth, no recovery has been effected from the scene of occurrence either in the shape of empties of 7.62 bore kalashnikov or spent bullets from the wall of `Baithak' of Atta Muhammad, which was in the firing range of the convict-appellant. It is not the case of the prosecution that it was only one fire which was shot by convict-appellant, rather a single burst of firing having taken place within a minute is attributed to the convict- appellant and thus the non-recovery of empties from the scene of occurrence creates doubts in a prudent mind. Similarly, contradictions in the statement of P.W.7 vis-a-vis the site plan, which has been admittedly prepared at his pointation lends further support to have withheld the truth and substituted the same by a self-made story.
Accordingly, while extending benefit of doubt to the convict-appellant, his appeal is accepted and he is acquitted of the charge. The conviction and sentence awarded by learned Additional Sessions Judge, Lakki Marwat on 10-7-2008 are set aside and he be set at liberty forthwith if not required in any other case. The Criminal Revision No,15 of 2008 (Akhto Jan v. The State) for enhancement of compensation accordingly fails and is dismissed, while Murder Reference No,3 of 2008 received from the trial Court is answered in negative.