' FAZAL-I-HAQ ABBASI, J.---Lajbar has filed this appeal against the judgment dated 22-6-2010 of learned Sessions Judge/Zilla Qazi Buner at Daggar, whereby the accused respondents were a acquitted of the charge under sections 302/148/149, P.P.C.
2. On 4-6-2009 at 10-30 a.m. Lajbar Khan (P.W.3) lodged report in the PS that on 3-6-2009 at 10-00 a.m. His brother Biladar was busy in irrigating his lands, in the meanwhile Parvez, Habibur Rehman sons of Amrosh, Rahat, Jamshed sons of Parvez and Liaqat Ali son of Zarnosh started firing at Biladar. With the firing of Parvez he was hit on head and fell on the ground, while Habibur Rehman gave hatchet blow on his forehead, who died at the spot. Accused decamped after the occurrence.' The occurrence was witnessed by Arshad, Said Ghafoor and Kamalay besides him.
Motive for the occurrence was stated to be the dispute over irrigation water. Dead body was being brought, but due to curfew, the same was got medically examined at BHU Goqand and was buried thereafter in the village. Delay in the report was stated to be due to curfew and worst circumstances. On the basis of the report case was registered vide F.I.R. No,215 dated 4-6-2009 under sections 302/148/ 149, P.P.C. At Police Station Daggar, District Buner.
3. After completion of the investigation challan was submitted in the court of learned Sessions Judge, Buner at Daggar. The learned trial Court after compliance of the legal formalities, recording of the evidence, statement, of accused and hearing the arguments of the parties acquitted the accused-respondents.
4. Learned counsel for the appellant argued that due to worst situation because of 'Taliban', Pak Army took over control of the area and most of the area in District Buner was under curfew, therefore, the delay in lodging the report was of no consequence. He further submitted that ocular account is supported by medical evidence, recoveries from the spot, abscondence of the accused and motive. As such the trial Court wrongly acquitted the accused by misreading and non-reading of the evidence.
5. We have heard the arguments of the learned counsel for the appellant and perused the record.
6. The prosecution in order to prove its case produced nine witnesses.
7. Said Ghafoor (P.W.1) stated that he is witness to the recovery memos Exh.P.W.1/1 to Exh.P.W.1/3 through which the I.O. Took into possession blood-stained earth and pebbles, blood-stained shirt of deceased Exh.P.3, pillow Exh.P.4 and three empty shells of 7.62 bore produced by Lajbar complainant to the I.O. He further stated that he is eye-witness of the occurrence and that Biladar along with his grand sons Arshad and Kamalay came to their land for irrigation. Biladar diverted the water. Parvez, Habaibur Rehman, Rahat, Jamshed and Liaqat Ali made firing at Biladar. With the firing of Parvez, Biladar was hit on head and fell on the ground. Thereafter Habaibur Rehman gave hatchet blow to him, as a consequence Biladar died at the spot and accused decamped. Said Ghafoor (P.W.1) in his statement has not mentioned the presence of Lajbar complainant (P.W.3) and Said Nazar (P.W.4). In cross-examination he stated that he is not in the knowledge that what transpired between the deceased and the accused, because he was not present at that time. He further stated that Biladar was accompanied by his two grand sons namely Arshad and Kamalay.
He stated that Said Nazar, (his brother) arrived after the occurrence and Lajbar (complainant) arrived after hearing the report of firing. He further stated that house of Lajbar is situated at a distance of about half Kilometer from the place of occurrence.
7(sic). Muhammad Khan (P.W.2) stated that on the day of occurrence he had gone to Goqand for purchase of household articles. On return at about 10-00 a.m. When reached in the lands of Biladar, saw that Parvez, Habibur Rehman, Jamshed, Rahat and Liaqat Ali were making indiscriminate firing at Biladar. With the firing of Parvez, Biladar was hit on head, while Habibur Rehman gave hatchet blow on his forehead, who died at the spot. Accused after the occurrence decamped. On the next day blood-stained earth, pebbles, three empty shells of 7.62 bore and blood-stained shirt of deceased were taken into possession by the I.O. Through memo. Exh.P.W.1/1 to Exh.P.W.1/3, which are witnessed by him and Said Ghafoor. In his cross-examination he stated that on the day of occurrence after purchase of commodities, he returned at 6-30 a.m. And reached the house at 7- 30 a.m. He further stated that the distance between his house and the place of occurrence, is coverable in 20 minutes, on foot. He stated that when he reached the place of occurrence, the deceased was lying murdered and his grand sons Arshad and Kamalay were present with the dead body. On inquiry from them, they narrated the occurrence. He also stated that the complainant arrived at the spot after his arrival.
' Lajbar complainant (P.W.3) stated that he along with Biladar king ng to Daggar for offering condolence to Johar Ali Khan, on the death of his father, but because of curfew, they returned.
Biladar and his grand sons were irrigating their lands and he went to his house. In the meantime he heard the report of firing. Thereafter again he heard firing, he arrived at the spot and saw Parvez accused firing at Biladar, with which he was hit on the head, Habibur Rehman gave hatchet blow on the forehead of Biladar. Remaining accused made firing at the grand sons of Biladar and thereafter decamped. As the police could not come to the crime spot, because of curfew, therefore, he took blood-stained earth, pebbles and three empty shells of 7.62 bore from the spot and produced the same along with the shirt of deceased to the police at Police Station Daggar. In cross-examination P.W.3 stated that he heard the report of three fire shots, when he was sitting in the veranda of his house. He further stated that when he and Khanzada arrived at the spot, Said Ghafoor, Muhammad Khan, Arshad, Kamalay and Said Nazar were already present and his brother was dead.
9. Said Nazar (P.W.4) stated that he was present near the place of occurrence, Biladar was busy in irrigation, in the meantime accused turned water to their field. Biladar went behind them. Accused Parvez, Habaibur Rehman, Jamshed and Rahat started altercation with him. Parvez fired with which the deceased was hit and fell on the ground. Habibur Rehman accused gave hatchet blow on the head of Biladar. However, he did not mention the presence of Lajbar (complainant), Said Ghafoor, Muhammad Khan, Arshad Ali and Kamalay at the time of occurrence nor he mentioned the presence of Liaqat accused and firing by all the accused. In his cross-examination he stated that he did not attend as to what was the duration of firing and number of shots whether, 50, 60 or 70.
10. Shah Rome Medical Technician BHU Goqand appeared as P.W.5 and stated that on 3-6-2009 he examined the dead body of Biladar and found:-- "(i) Wounds on forehead with automatic arms.
(ii) Deep wound on head, posterior side by sharp axe."
' The dead body was referred to BHU Daggar for MLC. In cross-examination he stated that he is not a Doctor and that he has not mentioned the time of examination of the dead body in the report Exh.P.W.5/1. He further stated that he found only two injuries on the dead body i.e, one on forehead and the other on posterior region of the head.
11. Arshad Ali (P.W.6) stated that he, Kamalay and his grand father namely Biladar were irrigating the lands. In the meantime the flow of water stopped. They started for the said place, where Parvez, Habibur Rehman, Jamshed and Rahat armed with Kalashnikovs were sitting. His grand father tried to divert the water. In the meantime Parvez started firing, with which his grand father was hit and died at the spot. Rest of the accused were present duly armed, but they did not fire. Habibur Rehman gave hatchet blow on the head of his grand father. He further stated that because the accused were giving butt blows to them, therefore, they made hue and cries, on which Said Ghafoor, Said Nazar and Muhammad Khan attracted to the spot and thereafter Lajbar arrived. In his cross-examination he stated that his grand father has not gone anywhere excepting for irrigation. He further stated in his cross-examination that house of Lajbar (complainant) is situated at a distance coverable in 15 minutes, on foot, from the place of occurrence. While confronted with the statement under section 161, Cr.P.C. Giving butt blows was omitted in the statement. He further stated that around the place of occurrence the houses of Muhammad Iqbal, Shah Zaman, Noor Muhammad, Jehanzeb, Muhammad Amin and Samiullah are situated and they came out after hearing the firing. He stated in the cross-examination that 3/4 police officials in casual dress came to the village and inquired about the occurrence.
12. Muhammad Sattar Khan Inspector (P.W.7) arrested accused Liaqat Ali, obtained warrants under section 204, Cr.P.C., prepared the site plan Exh.P.B., recorded the statements of P. Ws. And on 9-10- 2009 arrested Muhammad Parvez, Jamshed Ali, issued their cards of arrest. He applied for physical remand of the accused, as such five days police custody of the accused was granted by the Court.
Khurshid Ali, relative of the accused brought Kalashnikovs P-I and hatchet P-2 from the houses of the accused, which were taken into possession by the I.O. Through memo Exh.P.W.7/8. Kalashnikov Exh.P.1, and three empty shells produced by Lajbar complainant and taken into possession through memo. Exh.P.W.1/1 were sent to the fire arm expert, report whereof is Exh.P.W.7/10 which reveals that the empty shells were not wedded with the Kalashnikov. However, hatchet was not sent to serologist for his opinion.
13. Nawab Khan S.-I. (P.W.8) took into possession blood-stained earth and pebbles through memo Exh.P.W.1/1. Blood-stained shirt of deceased through memo. Exh.P.W.1/2 and three empty shells of 7.62 bore through memo P.W.1/3. All the aforesaid articles were produced by the complainant to the police. In cross-examination he stated that the aforesaid articles were taken into possession on 15-6-2009.
14. Sirat Khan A.S.-I. (P.W.9) registered the case on the report of Lajbar complainant. He is also witness to the recovery memo. Exh.P.W.7/8 through which Kalashnikov P-I and hatchet P-2 were taken into possession.
15. From the analysis of the evidence produced by the prosecution the so-called eye-witnesses contradicted each other on material points. Said Ghafoor (P.W.1) did not mention the presence of Muhammad Khan (P.W.2) and Lajbar (P.W.3) on the spot at the time of occurrence. In his cross- examination he stated that he is not in knowledge that what transpired between the deceased and the accused prior to the occurrence, as he was not present. Muhammad Khan (P.W.2) did not mention the presence of complainant or any other witness at the time of occurrence. He further stated in cross-examination that when he reached the spot the deceased was already lying murdered and on inquiry from Arshad and Kamalay, the whole situation came before him. Lajbar (P.W.3) on the one hand stated that due to curfew report was delayed, but on the other hand, he stated that the dead body was taken to BHU Goqand. F.I.R. Was lodged after a delay of more than 24 hours. Explanation offered by complainant for delay is neither reasonable nor plausible. It can be safely held that time was consumed in deliberations and consultations. He himself picked blood-stained earth, pebbles and three empty shells of 7.62 bore from the spot, but the same were produced to the I.O. On 15-6-2009 i.e, after 12 days of the occurrence. P.W.3 further stated in cross- examination that he heard the report of three fire shots, when he was sitting along with Khanzada in the veranda of his house. This negates his version that he is eye-witness of the occurrence.
Similarly Said Nazar (P.W.4) did not mention the presence of complainant or any other witness at the time of occurrence. Arshad Ali P.W.6 stated that none of the accused excepting Parvez made firing, which is contradicted by. P.W.1, P.W.2, who stated that all the accused made firing at the deceased, but with the firing of Parvez he was hit. When firing was attributed to all the accused by P.W.1. And P.W.2, then photographic view was impossible that with the firing of Parvez, deceased was hit.
16. It appears that the occurrence was unseen and the witnesses are set up. They are closely related inter se and with the deceased and inimical towards the accused. They are contradicted by the medical evidence. Empty shells allegedly taken from the spot by the complainant were not found wedded with the Kalashnikov allegedly recovered.
17. Motive is a double edged weapon, it cuts both ways. If it can be a reason for aggression against the deceased, it is equally possible that the same could prompt the witnesses to falsely implicate the accused. Motive loses its importance when ocular account is not trustworthy.
18. Abscondence of accused is a corroborative piece of evidence. It may be consistent with his guilt or innocence, which is to be decided keeping in view over all facts and circumstance of the case.
Abscondence alone would not be sufficient by itself to warrant conviction in a case involving capital punishment. Double presumption of innocence is attached to the order of acquittal passed by the Court of competent jurisdiction. Finding of acquittal cannot be reversed, upset and disturbed, except when the judgment is found to be perverse, arbitrary, shocking, artificial and, suffering from error of jurisdiction, misreading or non-reading of evidence. Even if on appreciation of evidence another view is possible, view favourable to the accused is to be preferred.
' In the circumstances, the judgment of acquittal passed by the learned trial Court is unexceptionable and needs no interference. Therefore, this appeal is dismissed in limine. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.