DOST MUHAMMAD KHAN, J.---Appellant, Pasand Khan stands convicted under section 302, P.P.C. and sentenced to death and also to pay an amount of Rs,3,00,000 as compensation to the legal heirs of the deceased. He has been further convicted under section 337-H and sentenced to one year R.I. with a fine of Rs,10,000 while under section 337-F(ii), P.P.C. he has to pay an amount of Rs,20,000 as Daman. The appellant through this appeal filed from Jail has questioned his conviction and sentences awarded by the learned Additional Sessions Judge, Lahore, District Swabi while the latter has sent Murder Reference No,16/2009 for confirmation of the death sentence. This single judgment shall decide both.
Extensive arguments heard and evidence on record perused with judicial care and caution.
2. The complainant, Muhammad Saeed (P.W.7.), a serving DSP of the area, reported the crime on 6- 9-2001 at 0830 hours to Police Station Yar Hussain Swabi, alleging that at 0740 hours, he and Saleem Khan, his other brother (P.W.8.) were taking their brother Ajmal Khan, deceased, for medication to the local hospital. When they reached near the street known as "Parrais" near the "Hujra" of Jehanzeb, the appellant and his 2 brothers (still hiding) namely, Raid Ali and Raidal started firing at them, as a result, Ajmal Khan was hit and died on the spot, while a passerby Hamesh Gul (not produced) got injured. Motive for the crime was previous blood-feud between the parties.
3. The report was taken down at 0830 hours but the time of registration of the case is omitted. No reason has been given for such omission. After registration of the case, Wafadar Khan, (P.W.10.), sent the dead body and injured Hamesh Gul simultaneously along with inquest report and injury- sheets to the hospital.
4. One Salar Khan, S.-I. (P.W.9.) commenced the investigation on the spot, secured blood therefrom vide memo Exh.P.W.7/1, collected 28 empties of 7.62 bore (Ex.Pl) vide memo EXh.P.W.7/2, and pair of "chappal" vide memo. Exh.P.W.7./3. Site-plan was prepared, which is Exh.PB. The garments of the deceased, Exh.P4 and Exh.P5, and that of the injured Hamesh Gul; Exh.P6, were taken into possession vide memo Exh.P.W.7./4. He also received a phial, containing 04 spent bullets Exh.P7, recovered from the. dead body during autopsy. The memo to that effect is Exh.P.W.7/5.
5. The Investigating Officer vide application, Exh.P.W.9/1, got the opinion of the doctor about the ability of Hamesh Gul, injured of giving a statement, which was recorded, who has given a different picture of the transaction. The Chemical Examiner report, Exh.PK, about the bloodstained articles was placed on file. Through an application, Exh.P.W.9/3, he sent the crime empties and 4 spent bullets to the Firearms Expert for safe custody but strange enough these were returned with the remarks to be kept in police maal-khana'. The report is Exh.P.W.9/5. The appellant absconded for some time, however, he was arrested on 28-3-2008 and on the next day three days' police custody was obtained. During interrogation, the accused pointed-out the crime kalashnikov (Exh.P9) which was recovered from a box lying in his residential house, which was secured vide memo. Exh.P.W.5/1, while the sketch of recovery is Exh.PB/1.
6. After recovery of the gun, this time, only the gun and the empties were sent to the Expert while the 4 bullets were retained in the Police Station for no good reason. The Arms Expert reported back vide Exh. PK/1 that 20 empties, C-1 to C-20, were fired from the rifle in question, while rest of the 08 empties were not found wedded therewith.
7. At the conclusion of investigation, charge-sheet was filed in the trial Court. At the trial, the prosecution examined 10 P_Ws. in all, where after, the statement of accused was recorded and then the impugned judgment of conviction dated 25-6-2009 was handed down.
8. Muhammad Saeed (P .W.7.), a sitting DSP of the area, while deposing at the trial, almost narrated the same story. However, he made certain improvements A and also omitted certain facts attempting to reconcile certain self-clashing facts brought on record. He was confronted with his F.I.R. with regard to the improvements and omissions he made at the trial. He deposed that, they all went out of his house but in the F.I.R. he has stated that they had started from the house of deceased Ajmal Khan. He denied the suggestion that his house is 5/6 furlongs away from the spot.
He admitted to be a serving DSP of the area and also a graduate. He also admitted that Ajmal Khan-deceased was charged for the murder of Bakht Rawan and that the deceased was injured in the year 2001 in village Kalu Khan but he showed ignorance that who was charged for attempting at the life of the deceased. His maternal uncle, Abdul Aziz was killed but he did not know that who was charged for the murder. He was suggested that one Riaz Muhammad was charged for the said murder but again he expressed ignorance albeit admittedly Riaz Muhammad was subsequently killed by the complainant side. At this stage, when he moved to a blind corner, he admitted that Ajmal Khan, deceased was charged for the murder of Riaz Muhammad. He then admitted that the deceased has left behind 3 widows. Amongst them one is the sister of Jan Muhammad of Village Yar Hussain but he denied the suggestion that this lady was forcibly abducted by the deceased Ajmal Khan. He further admitted that the deceased was also injured in another incident and because of that he was doing no work. He conceded that Saleem Khan (P.W .8.) was the servant of Said Akram, supervising the purchase of tobacco at Rashakai and was managing his depot. He stated that the place where Hamesh Gul got injured was not pointed-out by him to the investigating officer.
9. He squarely denied the established fact that Hamesh Gul-injured was present along side the dead body at the time of making the report by him as in the ridder to the F.I.R. the S.H.O. has clearly stated so. He denied the suggestion that he was a false and set up witness and was not present with the deceased at the fateful time. It is of a considerable importance that all the distances between them, the culprits, the injured and the deceased were accurately measured and noted down by the investigating officer in the site-plan, the witness has explained. He admitted that in the land of Jelianzeb there was standing maize crop but added that that was of a small size He denied the suggestion of dishonestly reducing the height of the crop. He admitted that there is a drain towards the maize crop and along side it, there were standing plants/bushes. He admitted that he could well differentiate between kalashnikov rifle, shotgun and pistol etc. He stated that the deceased was walking on foot and was not carried to the hospital and that the deceased was well acquainted with the hospital. He denied the suggestion that because the real brother of the appellant, Raidal, the absconding accused, was having close friendship with Bakht Rawan for whose murder the deceased was charged and because of that, the appellant was falsely, implicated.
10. The case of Saleem Khan (P.W.8.) is also not different from the complainant as he too made dishonest improvements while deposing at the trial and made radical departure from his statement given under section 161, Cr .P .C, with which he was confronted in the prescribed manner.
This witness in. all probabilities must have accompanied the dead body but was not made attesting witness to the F.I.R. nor the F.I.R. was approved by the injured witness Hamesh Gul. He retracted from his admission made in his earlier statement that the accused were entrenched inside the maize crop and they emerged from there. Like the complainant, he also admitted the various enmities, Ajmal Khan, deceased had earned during his life time. He admitted the standing maize crop where the accused were shown but promptly stated that it was of a small size.
However, like the complainant, he admitted standing reeds plants by the side of the drain. He denied the suggestion that the height of the maize crop was sufficient. He also denied the abduction Of one lady by the deceased now his widow. He further disclosed that the deceased had earlier lodged an F.I.R. against the accused. He stated that they entered R.H.C. Yar Hussain but did not see Hamesh Gul, injured present there. He admitted to be the servant of Said Akram Bacha, supervising his tobacco depot. To a cross question, he conceded that no prescription 'chit' etc. about the ailment of the deceased was produced to the police albeit he was sick for the last 9 months.
11.During autopsy on the dead body of Ajmal Khan, the Medical Officer discovered and observed charring marks on the two separate groups of injuries while the third group was having no charring marks.
According to the site-plan position, the deceased was 8, 9 and 10 full paces away from the accused. In this way, the average distance of each one from the deceased would come to 9 full paces. A full pace is equal to 3-1/2 feet as held by the Hon'ble apex Court in a reported judgment thus, the inter se distance between the deceased and the culprits would come to 32 feet. This fact, in our view, has given a fatal blow to the prosecution case. More particularly when the complainant, a senior Police Officer, with rich experience, has squarely stated that in his presence the distances of the crime scene were measured and noted in the site-plan.
12. A shot made from a rifle would cause charring marks when the distance between the target and the assailant is 1 to 2 feet at the most, while in the present case the exact distance shown is 32 feet.
Hence, the medical evidence has fully contradicted the ocular account. This circumstance has exposed the so-called ocular account to a serious debate. In the case of Nawaz Ali and another v.
The State (1981 SCM R 132), the Hon'ble apex Court has held that 4 wounds out of 5 were having charring marks while the eye-witnesses emphatically fixed the distance and because empties were recovered five paces away, hence it was the most doubtable circumstance. Again, in the case of Muhammad Zaman and another v. The State (PLD 1993 Pesh. 13), this Court has held that per ocular account the range/ distance given was long but charring marks were present around the wounds, which were not possible from that much long distance hence, it was further held that the entire case was doubtful.
In the case of Abdul Subhan v. Rahim Bakhsh and another PLD 1994 SC 178, the injury was caused through a shotgun and the distance given by the eyewitnesses was shown 38-1/2 feet but the pellets had made a single hole thus, it was held by the apex Court to be a close distance shot and the case was held of doubtful circumstances. The blackening range was fixed between 5 to 8 inches. In the case of Zar Shad v. Bahadur Khan and another (1972 SCM R 644), the ocular account gave the distance 4 to 10 paces but blackening marks were found on the wounds thus, it was held that the fire was made from a very close distance and because the parties were on inimical terms, therefore, the accused was acquitted.
13. There is another anomaly which needs to be addressed because the third group of wounds on the deceased was having no charring marks. It is not the case of the prosecution that the accused or one of them did come close to the deceased for firing at him; rather all of them have been shown on their original place. Thus, this circumstance would speak loudly that the deceased was fired at in the first instance from inside the maize crop and when he fell down, the culprit came close and while standing on him fired again, which left behind the charring marks. This could be the most natural inference to be drawn from the established facts because unavoidable could not be avoided. All the jurists of medico-legal science have a consistent view with regard to the range of charring marks. Their opinion is one and the same as has been discussed in the cited cases.
14. Admittedly, the deceased was sick for the last many months hence, such a sick person normally could not take food. However, in the post-mortem report, the medical officer has found his stomach full of food. No person so sick would eat like a beast. Only a man of sound health could digest that much food. This circumstance negates the story of the prosecution that the deceased was sick and needed medications; therefore, the complainant and. Saleem Khan became his companions during transit to the hospital. The entire structure of the prosecution case thus is broken down like a crock.
15. Both the so-called eye-witnesses have told lies albeit knowing well that they were under oath.
They have made crude D attempts to conceal / suppress established facts on record. In the notes of the site-plan, based on personal observations of the investigating officer, the maize crop where the accused had concealed themselves was of more than man height but both the witnesses reduced its size to 2/3 feet. In the case of Kamal Din and 2 others v. Muhammad Sharif and others, (1987 SCM R 1264), the Hon'ble apex Court held that any deliberate attempt on the part of witnesses concealing established facts on record would render their testimony highly doubtful thus, no reliance could be placed on it unless strong corroboratory evidence in support of it come from unimpeachable source. Unfortunately, in this case no such evidence is available on record.
16. The dishonest attempts on the part of the two witnesses, cutting the size of the maize crop, clearly point towards the fact that firing at the deceased was made from inside the crop. They were conscious of the fall out that if in case this circumstance was established at the trial because of the special note given in the site-plan, even then the Court is made to believe that the accused were even visible from inside the maize crop. The fallacy of their claim has thus crumbled to the ground. The dishonest suppression of facts fully established on record would adversely reflect upon the veracity of their testimony.
Keeping in view the provision of Article-129 of the Qanun-e-Shahadat Order 1984, Court has to judge the probability of any fact in light of the natural human conduct and behaviour. In case, crime of this nature is committed in a pre-planned manner, the foremost anxiety of the culprits always would be to conceal their identity so that they could not be identified by any one present there. In the present case, once the culprits have taken so much precaution by concealing themselves in the standing maize crop of more than man height wherefrom they could conveniently hit the target then, no earthly reason could persuade, them coming out of the well entrenched place disclosing their identity and also exposing themselves to the risk of counter- attack. This part of the story of the prosecution case appears to be the brain-child of the complainant, a senior police officer, well acquainted with the niceties of law on the subject.
17.The pattern of bullet marks on the deceased would clearly suggest that he was tired upon in the manner discussed earlier. Albeit bullet marks have been shown at Points F, G and I, but no bullet was recovered therefrom.
Again, the deceased has 'sustained the two groups of injuries on the same side of the body and same is the case of injuries on his back. The locales and site of injuries on the dead body would strongly suggest that it was a job of a single person but here, 3 real brothers have been charged for effectively firing at the deceased.
Almost in similar circumstances, in the case of Farman and others v. The State (PLD 1980 SC 201), the Hon'ble apex Court held that .32 bore pistol, a semi-automatic weapon, if fired by a single person would cause many injuries to the deceased and could be a job of a single person. Not only the ocular account but also the dying-declaration in that case was disbelieved. In the present case, the deceased was fired at with kalashnikov rifles, fully automatic weapons thus, the injuries caused to the deceased in group fashion would rather strongly suggest that he was fired at by a single culprit hence the doubt created in this case is much wider than the case of Farman cited above.
18. Admittedly, it was a daylight occurrence and the complainant, a highly experienced senior police officer, was supposed to know about the weapons possessed by the accused. More so, when he has admitted of being expert on the subject but strangely, he omitted to give the description of the crime weapons possessed by the accused. He was at a distance of few paces from the accused, as shown in the site-plan, more so; there was no visual hurdle in his way in identifying the weapon. This glaring omission speaks volumes about the fact that the complainant was not at all present on the spot at the fateful time.
19. So far the recovery of the crime weapon is concerned, we entertain considerable doubt in this regard because the complainant was a sitting DSP of the area and in all probabilities he must have exerted influence over his subordinate investigating officer for falsely planting the rifle against the appellant. This possibility cannot be altogether ruled-out. Another circumstance, glaring one, enough to disturb every judicial mind, that the Arms Expert returned the empties and 4 spent bullets to the police for safe custody albeit secured and safe custody does lay exclusively with the Arms Expert in the FSL where these are placed in a secured place and chances for outsiders to tamper with the same is not easily possible. In our view it is an exceptional case where departure was made from routine. These crime empties were retained in the Police Station, who was its custodian, is a begging question, for which the prosecution has got no answer to give. By whom and how the empties and the rifle were taken to the Arms Expert (FSL) is another begging question looking askance. Again, the most intriguing part of the story is that this time, the spent bullets recovered from the dead body were not sent to the Arms Expert, which were more important than the empties and no reason has been shown for withholding the same. In our view, the entire process in this regard was conducted in a dishonest manner. The transition of the rifle and empties to the Expert has also not been proved to have taken place in a safe and secured manner; therefore, the opinion H of the Arms Expert has lost its legal worth.
20.From the combined study of the evidence made above and judged from all angles, a legitimate inference could be that undue favours were shown to the complainant party under the influence of the complainant, a serving DSP of the district where the crime was committed. The presumption is too apparent and so strong, which could not be dislodged in a light way. As the deceased was having to his credit a long criminal history and had earned many enmities in the area as he was involved in serious crimes thus, many people must be after his blood. The possibility that he was killed by some one else when he was found all alone cannot be ruled out.
In the case of Mushtaq Ahmad v. The State, (1990 SCM R 405), a double murder case, one of the deceased persons was a man of obnoxious disposition and had a number of enemies only too willing to get even with him, the Hon'ble apex Court held that dying-declaration in the absence of independent corroboration was found unreliable. It was further held that the ocular testimony was not of such a quality upon which implicit reliance could be placed. The death sentence awarded by the trial Court and upheld by the High Court was thus set aside by the apex Court and the accused was acquitted. The case in hand is not distinguishable on facts and circumstances from the one decided by the apex Court.
For the aforementioned reasons and after comprehensive study/reappraisal of the entire evidence, the Court is of the considered view that the ocular account is of highly doubtful veracity, both the so-called eyewitnesses are highly inimical towards the accused, their testimony needed strong independent corroboration, which is absent in the present case, the recovery of the gun and the Arms Expert's opinion both are highly doubtful and of no judicial efficacy to be relied upon while motive is double edged weapon which cuts both ways, the question of identity of the accused inside the maize crop of more than a man height was absolutely impossible and the tragedy appears to have been enacted by a single person and because of the dishonest investigation conducted right from the very inception up to the concluding stage, it would be highly unsafe to maintain the conviction and sentences of the appellant in view of the principles of safe administration of justice, more so when the presence of both eyewitnesses on the spot is a highly doubtful circumstance.
Hence, while extending the appellant benefit of doubt, this appeal is allowed, the impugned judgment of the learned Additional Sessions Judge Lahore, District Swabi dated 25-6-2009 is set aside and the appellant is acquitted of all the charges levelled against him He be set free forthwith if not required in any other case. The conviction and sentences of the appellant stand annulled thus, the Murder Reference No,16 of 2009 sent by the learned trial Judge is not confirmed.
These are the detailed reasons for our short order of the even date.