' MIAN FASIHUL MULK, J.--- Appellants, (1) Iqbal Khan, (2) Laiq Shah, (3) Naseer Khan, (4) Azmat, (5)
Muhammad Safir, (6) Samiullah, (7) Mudassar and (8) Muhammad lqbal, were put on trial in the Court of learned Additional Sessions Judge, Kohat in case F.I.R. No,730 dated 11-8-2008, under sections 302/324/148/149, P.P.C. Police Station Saddar Kohat.
2. On conclusion of trial, all the appellants were found guilty of the charge and vide judgment dated 27-7-2009, they were convicted under section 302(b) read with section 149, P.P.C. To imprisonment for life for committing the murder of deceased Ainullah and to pay compensation of Rs,50,000 each to the legal heirs of deceased under section 544-A, Cr.P.C. Or in default to undergo further six months' S.I.
' Appellants were also convicted under sections 324/149, P.P.C. To tour years' R.I. (on four counts) each for causing injuries to P.Ws. Muhammad Zahid, Nasrullah, Inayatuliah and Nadir Khan with fine of Rs,30,000 each or in default thereof to suffer two months simple imprisonment each. They were also held liable to pay compensation of Rs,20,000 each to the injured P.Ws.
' Appellants were further awarded imprisonment of one year's R.I. Each under sections 148/149, P.P.C.
All the sentences were ordered to run concurrently and benefit of section 382-B. Cr.P.C. Was extended to them.
3. Appellants feeling aggrieved of their conviction and sentences have filed instant appeal, whereas the complainant side has filed Cr.R. No,102 of 2009 for enhancement of sentences of appellants. As Criminal Revision arises out of same judgment of trial Court; hence shall stand disposed of through this judgment in Criminal Appeal,
4. It may also be mentioned here that during pendency of appeal, appellant No, 5 (Muhammad Safir) was reported to have died in jail, hence instant appeal to his extent would stand abated.
5. The occurrence in this case was reported by P.W.8 Inayatullah to the police in the Emergency Room of KDA Hospital on 11-8-2008 at 1915 hours, to the effect that he along with his brothers Ainullah, Nasrullah, and nephews Mohammad Zahid and Nadir Khan were ploughing their fields through a tractor situated at Kot Road Billitang, when in the meanwhile, their co-villagers Iqbal, Azmat, Mudassar and Iqbal, duly armed with sticks and axes came there and tried to stop them from ploughing, on which oral altercation followed by grappling took place between them. The noises of quarrel attracted accused Naseer, Safir, Jano and Laiq Shah to the spot duly armed with pistols and rifles, who started firing at them, as a result of which his brother Ainullah was hit and died on the spot. Accused Azmat was having a dagger, with which he stabbed his brother Nasrullah on his right side chest, whereas he, Zahid and Nadir became injured from the stick blows of accused lqbal, Azmat, Mudassar and Iqbal. Motive for the occurrence was stated to be the act of accused to restrain them from ploughing the fields through tractor.
6. P.W.2 Gul Shahmeen, ASI recorded the report of complainant in the shape of murasila, Exh.PA/1 and sent the same to Police Station for registration of the case. He prepared injury-sheets of complainant as well as other injured P.Ws., Exh.PM/1 to Exh.PM/4, coupled with injury-sheet and inquest report Exh.PMJ5 of the deceased.
7. P.W.4 Dr. Saleemullah examined the complainant and other injured. P.Ws. On 18-8 2008. He found a blunt weapon lacerated injury on the left side scalp of complainant. Similarly, a lacerated wound caused through blunt weapon on posterior part of skull was also found on the person of Nadir Khan, injured. Similar nature of lacerated wound caused through blunt means was also found on the person of Muhammad Zahid, injured at interior part of scalp. The person of Nasrullah, injured, was having a stab wound on the right side of chest about one and half inch above the right nipple.
' In cross-examination, this witness admitted that in case of Nadir Khan and Inayatullah, final result of Radiologist is not available on file.
8. P.W.6 Dr. Farid Khan, on 11-8-2008 performed autopsy on the dead body of Ainullah deceased and on external examination found a single firearm entry wound on his body from backside near left scapuls with an exit wound above the right nipple of chest.
9. P.W.12 Muhammad Rais S.I. Investigated the case. He prepared the site-plan, Exh.P.W.12/1, at the instance of P.W.10 Zahid. During spot inspection, he took into possession blood-stained earth from the place of deceased and a blood-stained dagger vide recovery memo Exh.P.W.2/1 in presence of marginal witnesses. The blood-stained garments of deceased and injured witnesses were also taken into possession vide recovery memo.- Exh.P.W.2/2. He also recorded statements of P. Ws. And arrested the accused.
10. The prosecution produced as many as 12 witnesses at trial, out of whom P.W.8, Inayatullah, P.W.9 Nasrullah and P.W.10 Zahid furnished eye-witness account of the occurrence. The statements of Medical Officers, Investigating Officer and other formal witnesses were also recorded where after statements under section 342, Cr.P.C. Of all the accused were recorded wherein they denied the charge and professed innocence. Learned trial Court, after hearing counsel for the parties and appraising the evidence on record, convicted and sentenced the appellants, as stated in the preceding paras of this judgment.
11. Learned counsel for appellants argued that the trial Court has not considered the evidence available on file in its true perspective, as according to prosecution witnesses, about 40/50 shots were fired by four of the accused, but neither any empty was recovered from the spot nor the deceased received multiple injuries on his person nor any damage was caused to the witnesses; hence the occurrence has not at all taken place in the manner as depicted. He further stated that neither motive for the occurrence has been proved on record nor the material witness in this case i,e, driver of tractor was produced at trial to support the version of prosecution. Similarly, the prosecution has also suppressed the injury caused to accused Iqbal; hence evidence of prosecution witnesses, being of suspicious nature, was required to have been appraised with great care but the trial Court has failed to take such a care while holding the appellants as guilty of the charge.
12. Learned counsel appearing on behalf of State assisted by learned counsel for complainant, on the other hand, submitted that F.I.R. In the case was lodged with promptitude wherein all the appellants were directly charged for the commission of offence with a proper description that two groups of accused, one armed with sticks and axes and the other armed with pistols and rifles had attacked the complainant party, resulting into certain casualties from the side of complainant including death of Ainullah, deceased, and version of prosecution is fully supported by medical evidence, motive, recoveries made from spot and other, circumstantial evidence. It was further alleged that neither crossF.I.R. Lodged by Iqbal, appellant, was brought on record nor the nature of injury sustained by him. They further asserted that prosecution is not bound to produce every witness in the case and that under section 149, P.P.C. All the appellants, being equally responsible for the commission of offence, have rightly been found guilty by trial Court and convicted accordingly. They also prayed that quantum of sentence, being not in accordance with law, also requires interference and reasonable enhancement.
13. In this case, eight persons are charged for one firearm injury on the person of deceased and one injury each on the person of four injured witnesses, out of which three injuries were caused through blunt means whereas the fourth one was caused through a dagger. The cross-report lodged by appellant Muhammad Iqbal vide F.I.R. No,731 dated 11-8-2008 is available' on file though not exhibited, which reveals that appellant Muhammad Iqbal too received a dagger blow on his abdomen. The complainant in his statement though has admitted the receipt of dagger blow by appellant, Iqbal, but attributed the same to his own companions. The prosecution side 'has laid much stress on the recovery of blood stained dagger from the spot but keeping in view the admission of P.W.9 Nasrullah that it was a free fight, the recovery of dagger:from the spot would lend no positive support to the prosecution version, when apparently weapons were used from both sides.
14. The complainant in his report as well as in his statement at trial has admitted that accused- party is having land adjacent to their property. The occurrence was disclosed to be the result of the act of accused party A to restrain the Complainant party from ploughing but its background has not been explained. In these circumstances, it cannot be said with certainty that accused-party was the aggressor.
15. As per complainant, all the accused armed with firearms fired for about six minutes. P.W.9 Nasrullah has stated that the accused fired at them for about 4/5 minutes and as per version of P.W.10 Zahid, the four accused might have fired 20 to 40 shots at them. It is also not the case of prosecution that after the occurrence many people had gathered on the spot so as to eliminate the possibility of non-recovery of any empty from the spot; hence doubt again is created that despite sufficient fire shots, not a single empty was recovered from the spot. Presumption would be that neither heavy firing had taken place nor the occurrence had occurred in the manner as disclosed by complainant side. It is well settled that injuries of a prosecution witness would only indicate his presence at the spot and not his credibility and truthfulness. The august Supreme Court of Pakistan in the case of Amin All and another v. The State, reported in 2011 SCM R 323 has held as under:-- "Certainly, the presence of the injured witnesses cannot be doubted at the place of incident, but the question is as to whether they are truthful witnesses because merely the injuries on the persons of P. Ws. Would not stamp then truthful witnesses."
16. A look at the statements of eye-witnesses would reveal that they have not specifically pin pointed any accused responsible for commission of the act, hence it can also not be said with certainty as to from whose firing the deceased, was hit and as to from whose blows the other witnesses received injuries. The site-plan, medical evidence and motive do not corroborate the version of prosecution, leaving much room of doubt for holding the appellants guilty of the charge.
17. So far as the question of unlawful assembly is concerned, it may be stated that charge for an offence committed as a member of an unlawful assembly is different from a charge for an offence committed as a member of such assembly. As stated above, both the parties have landed properties adjacent to each other. According to prosecution, it was accused party who started the aggression, but the material witness in this case was driver of the tractor, who was not produced at trial and abandoned without any plausible reason. Here again an adverse inference can be drawn that had the driver been produced by prosecution, he would not have supported the 'case in the manner set up by prosecution. The prosecution witnesses themselves have admitted it to be a free fight; hence not only the aggression of accused party cannot be assumed to be true but the question of common object would also not arise. In view of such circumstances, when the situation leads to a free fight between the parties, subsequently one cannot be definite that it was the accused side who either initiated the episode or they have exceeded their right of self-defence and particularly when the deceased has received only one firearm injury. Reliance can be placed on the case of Saeed Muhammad v. The State (2007 SCM R 203).
18. The conduct of complainant party to charge eight persons for one single firearm injury and one injury each on the person of alleged eyewitnesses also reflects their mala fide intention of throwing the net so wide, to rope in the whole family. The non-recovery of any empties from the spot is another factor, which creates a dent in the prosecution case. Motive of dispute over property though was asserted but not substantiated through any cogent evidence as to why accused party restrained the complainant side from ploughing their own fields. The prosecution case, in the circumstances, remains shrouded in the mystery and the appellants, therefore, cannot be 'refused the benefit of doubt apparent on record. When two interpretations of evidence are possible, the established principle is that the one favouring the accused is to be taken into consideration.
19. As a result of the above discussion, this appeal is accepted, the conviction and sentences of appellants are set aside and they are acquitted of the charge. They shall be set free forthwith, if not required in any other case.
20. Criminal Revision for enhancement of sentence of appellants, keeping in view the acceptance of appeal, is hereby dismissed.