Agha Rafiq Ahmed Khan, CJ.--The Appellant/accused Taimoor Abbas son of Muhammad Abbas faced trial for an offence punishable under Section 17(4) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the said Ordinance) as well as Section 13 of the Arms Ordinance, 1985 before the Additional Sessions Judge-III, Nowshera who vide judgment dated 07.01.2010 convicted him under Section 17(4) of the said Ordinance and sentenced him to life imprisonment and a fine of Rs, 250,000/- to be paid as compensation to the legal heirs of deceased with the direction that till payment of the said compensation amount, he shall be kept behind the bar. The trial Court further convicted him under Section 13 of the Arms Ordinance, 1965 and sentenced him to one year R.I. and a fine of Rs, 500/- or in default of payment of fine to further one month S.I. The benefit of Section 382-B, Cr.P.C. has, however, been extended to him. He has filed this Appeal against the said judgment.
2. The other two connected appeals have been preferred, separately, by Javed son of Sadiq and Muhammad Ishaq son of Muhammad Abbas against a separate judgment dated 07.01.2010 delivered under the Juvenile Justice System Ordinance by Additional Sessions Judge-III, Nowshera whereby he has convicted them under Section 17(4) of the said Ordinance and sentenced them to life imprisonment, each, with the direction that their guardians shall be liable to pay Rs, 500,000/-, in equal shares, to the legal heirs of the deceased as compensation and till the payment of compensation both the appellants/accused shall be kept in jail. The benefit of Section 382-B, Cr.P.C._ has been extended to them.
3. Since both the judgments arise out of one occurrence and the same FIR, we are disposing them by this single Judgment.
4. Briefly stated, facts of the prosecution case as disclosed in FIR (Ex.PA) registered on 14.4.2008 at Police Station Azakhel, District: Nowshera on the statement of injured complainant Sawab Khan, (who expired afterwards) are to the effect that Roshanzeb khan, ASI who was on gasht, received information regarding the occurrence. Thereafter, he proceeded to the spot where Sawab Khan, in injured condition, reported to him that on the same day three persons had hired his taxi from Hangu for Nowshera and had fixed the amount of Rs, 1600/- as fare. They accordingly started journey for Nowshera. When they reached at the place of occurrence, one of the passengers fired at him. He was hit by the bullet and got injured. He stated that he could identify the accused by face. He charged all the three unknown accused for commission of the offence.
5. He was shifted to the hospital for treatment under the supervision of Nasir Khan Constable.
Murasila was drafted and sent to police station for registration of the case. Later on the injured complainant succumbed to the injuries 14.04.2008. Therefore, Section 302/34, PPC was substituted instead of Section 324/34, PPC. However, afterwards it was converted into Section 17 (4) of the said Ordinance read with Section 13. Arms Ordinance, 1965.
6. During the course of investigation, on 22.04.2008, Muhammad Bilal son of Sawab Khan (deceased) recorded his statement under Section 164, Cr.P.C., wherein he charged the appellants/accused by name, for the murder of his father. After arrest of the appellants/ accused and completion of the investigation, they were challaned to the Court to face trial. They were formally charged on 10.11.2008. However, they did not plead guilty and claimed trial.
7. At the trial, the prosecution examined fifteen PWs. A glimpse of the evidence of some important PWs is given in the subsequent paras:-- PW.1 is Muhammad Bilal. He made deposition in the following words:-- "Deceased Sawab Khan was my father. My father was a taxi driver who was running a taxi No, 1631 LOA. On 13.04.2008 my father was hired by some one from Hangu to Nowshera. On the following day in the morning we were informed that my father Sawab Khan was done td death by unknown persons. After that we were in search of the actual accused. Later on we have satisfied our self that my father was murdered by accused facing trial. During our inquiry, an investigation conducted by the police to this fact also came into our knowledge that one of the accused namely accused Javed had got injured at the time of occurrence with the fire shot of his co-accused and he was taken in a wagon of one Bader Munir for treatment. My statement was also recorded under Section 164, Cr.P.C. Today I charged the accused for the commission of offence."
PW-2 Bader Munir deposed as mentioned hereinunder:-- "Accused Taimoor and Ishaq are my co-villagers. On 13.04.2008 at 12:00 PM I was sleeping in my house. In the meanwhile the accused Ishaq and Taimoor Abbas knocked at my door upon which I alongwith my brother Akhtar Hussain came out from our house. The accused disclosed that another person who had accompanied them was in injured condition about whom they disclosed that their companion has received fire arm injuries and he had to be shifted to the hospital. Then I started my Wagon No, 9611-Peshawar and had taken the injured and the accused Taimoor Abbas and Ishaq to Pabbi Hospital and they de-boarded from my vehicle at Ziarat stop. When I came back to my house I heard that the accused had committed murder of a taxi driver at night time. My statement under Section 161, Cr.P.C. was also recorded by the police as well as before the Court (under Section 164). I have seen both my statements which bear my thumb impression."
PW.3 Akhtar Hussain made statement in the following words:- "On 13.04.2008 at 12.00 midnight accused Muhammad Ishaq and Taimoor Abbas who happened to be my co-villager had knocked at our door upon which my mother had opened the door. Taimoor Abbas and Muhammad Ishaq had asked for wagon in which they wanted to shift their companion to the hospital; I alongwith my brother Bader Munir had accompanied the accused facing trial and their companion who was in injured condition, to the hospital. We had de-boarded the accused Taimoor Abbas, Muhammad Ishaq and their companion near. Ziarat stop Pabbi. When we returned to our village the people of the village had informed us that the taxi driver has been murdered in Pir Pai Khuwar with motor car by some one.
My statement was recorded under Section 161, Cr.P.C. and 164, Cr.P.C. The people disclosed that the murder of taxi driver was committed by the accused facing trial. We were also informed that three natural deaths of our villagers had taken place. The accused Taimoor Abbas and Muhammad Ishaq told on our way to the hospital that accused Javed was hit by their bullet shot."
PW.4 Rehman Shah stated as under:-- "That on having a medical store in Hangu Lazaar. On 13.04.2008 I was present in my shop at about 06:00 PM. Sawab Khan came into my medical store in his Vehicle No, 1634-LQA who run the same as taxi. He informed me that the people who were sitting in motorcar, one on front seat and two on rear seat, were going to be taken to district Nowshera who had hired his taxi. Sawab Khan had purchased some tablets for headache. Later on I came to know about the names of the accused facing trial as Taimoor Abbas, Muhammad Abbas and Javed. My statement was also recorded under Section 161, Cr.P.C."
PW.5 Israfeel deposed that eceased Sawab Khan was his father in taw as well as his cousin. He identified dead body of the deceased in DHQ hospital Nowshera.
PW.6 is Amir Zaman Khan, ASI who deposed in the following words:-- "After registration of the case, I visited the spot and prepared the site plan Ex.PB at the instance of Roshan Zeb ASI. I had taken into possession from the place of injured then deceased blood stained stone (Bajri) and sealed into Parcel No,
01. And two empties of .30 bore pistol and sealed into Parcel No, 2 vide recovery memo'. Ex.PW-6/2A. Similarly I had taken into possession blood stained clothes of deceased consisted upon Qamiz, shalwar of malashia colour and one jacket of Naswari (Kharr) colour and sealed into parcel No,03 vide recovery memo. Hx.PW-6/2 which was brought by constable Safi Ullah No,1276 from the hospital. I produced PWs Bader Munir and Akhtar Hussain before the Court for recording their statements u/s 164, Cr.P.C. vide my application Ex.PW-6/3 and their statements were recorded by the Court. Similarly I also produced PW Muhammad Bilal for recording his statement before the Court u/S. 184, Cr.P.C. vie my application Ex.PW-6/4 and the same was recorded by the Court. I also submitted application Ex.PW-6/5 for production of accused through Zamima "B". I also issued card of arrest Ex.PW-8/6 of accused Muhammad Ishaq, I prepared the poiniation memo. Ex.PW-6/7 vide which the accused Muhammad Ishaq lead the police party to the place of occurrence. I also took into possession one .30 bore pistol and the same was 'sealed into parcel vide recovery memo. Ex.PW-6/8. I also prepared the sketch of the house of the accused which is Ex.PW-6/9, pistol .30 bore is Ex.P.1, blood stained clothes of the deceased consist upon Qamiz P.2, Shalwar of Malashia colour P.3, white Baniyan P.4 and brown (Kharr) colour jacket P.5, blood stained pebbles (Bajri) P.6 and 02 empties of .30 bore P.7. I also make insertions in the site plan Ex.PB on the pointation of the accused Muhammad Ishaq. During the Court of investigation I also drafted application Ex.PW-6/10 for the permission identification parade and the same was allowed. I also prepared injury sheet Ex.PW-6/11 of accused Javed. I. also drafted application for FSL which are Ex.PW-6/12 and Ex.PW-6/13 reports of which are Ex.PK and Ex.PK/1. I also apply for warrants u/S. 87, Cr.P.C. and proclamction notices u/S. 204, Cr.P.C. vide my application Ex.PW-6/14 and Ex.PW6/15. I also drafted application Ex.PW-6/16 to Halqa Patwari regarding any property of accused Taimoor Abbas. After arrest of the accused Taimoor Abbas I prepared his supplementary challan and accused lead the police party for pointation and in this respect pointation memo. Ex.PW- 6/17 was prepared and I produced the accused before the Court for recording his confessional statement vide my application Ex.PW-6/18. I also recorded the statements of the PWs under Section 161, Cr.P.C. Today I have seen all the above mentioned documents which correctly bear my signatures. I handed over the case file to SHO concern for onward submissions"
PW.7 is Mike Muhammad constable. He is marginal witness to the recovery memos Ex.PW-6/2 and Ex.PW6/2A, vide which the Investigating Officer took into possession blood stained clothes of the deceased and blood stained pebbles alongwith two empties of .30 bore pistol. He verified the above mentioned recovery memos and his signatures on the same. He also verified the memo.
Ex.PW6/8 regarding the recovery of .30 bore pistol as well as the pointation memo. Ex.PW-6/7 to be correct and bears his signatures.
PW.8 is Jehanzeb Khan SHO. He deposed that he had partly investigated the present case.
According to his investigation, he produced Muhammad Ishaq accused before the Court for obtaining police custody vide application Ex.PW-8/1. He has also arrested the accused Javed alias Matabo, who made pointation vide memo. Ex.PW-8/3 in the presence of marginal witnesses. He has also produced the accused before the Court for recording' his confessional statement, but the accused refused and was sent to judicial lock up. He recorded the statements of the accused and the PWs under Section 161, Cr.P.C.
PW.9. Hidayat MHC stated that after receipt of murasila he chalked out the FIR Ex.PA. He verified the contents of the FIR to be in his hand writing.
PW.10 is Doctor Murarat Hussain. He deposed that he conducted post-mortem examination of the deceased and made deposition in the following words:-- "During the days of occurrence I was posted at DHQ Hospital, Nowshera as MO. I have conducted the autopsy on the dead body of the deceased Sawab Khan s/o Nawab Khan aged about 35/36 years r/o Hangoo and observed the following:- Body brought by: Police (Nasir Khan constable)
Body identified by: Ismail and Israfeel sons of Ashraf r/o Nowshera.
Whence brought Village, PS & Distt: Pir Pai, Aza Khel, Nowshera.
DATE & HOUR OF Death: 14.04.2008 at 12.30.a.m.
Examination of Body: at 01.00p.m. on 14.04.2008 Symptoms observed before death: Gespine Information furnished by police: F.A.I.
EXTERNAL APPEARANCE Mark of ligature on neck and dissection etc: Nil Condition of subject-stout emaciated, decomposed, etc. clothing: Soft body, yellow colour Qameez & Shalwar white color Baniyan, Khaki color, Jacket All were blood stained.
Wounds, bruises, position, size, nature i. Fire arm entry wound size lx1 cm on frontal region of scalp. ii. Fire arm exit wound size 3x2 cm on the occipital region of scalp. iii. Fire arm entry wound size lx1 cm on the front of right side of chest lateral to the right nipple. . iv. Fire arm exit wound size 3x4 cm on the epigrastrium. v. 02 fire arm entry wounds size lx1 cm on the front of right forearm. vi. 02 fire arm exit wounds size 2x3 cm and 2x2 cm respectively on the back of the right forearm. vii. Fire arm entry wound size about( l)x(1) cm on the front of left forearm. viii.Fire arm exit wound (2)x(3) cm on the back of left forearm. {{TABLE}} CRANIUM AND SPINAL CORD. Scalp, Skull and VertebraeSkull fractured and scalp injured. Membranes-Brain injured.
THORAX
1. Walls, ribs and cartilagesInjured
2. Plurae Injured
3. Larynx and trachea NAD
4. Right lung Injured
5. Left lung NAD
6. Pencardium and heart NAD
7. Blood vessels Injured ABDOMEN
1. Walls Injured
2. Penitoneoum Injured
3. Mount, pharynx and OesoghagusNAD
4. Diaphragm Injured
5. Stomach and its contentsInjured and containing digested food.
6. Pancreas Healthy
7. Small intestines and their Contents.Healthy
8. Large intestines and their Contents.Healthy
9. Liver Healthy
10. Spleen Healthy
11. Kidneys Healthy
12. Bladder Healthy
13. Organs of generation external and internalHealthy {{TABLE}} MUSCLES, BONES, JOINTS REMARKS BY MEDICAL OFFICER In my opinion death occurred due to injury to brain and right lung caused by fire arm injury. The PM report consist upon 06 sheets alongwith pictorial is Ex.PM. I also endorsed the injury sheet Ex.PW- 10/1 and in-quest report Ex.PW-10/2. Today I have seen all the above mentioned documents which are correct and correctly bears my signatures. Probable time between injury and death within 01 & half hour about. Probable time between death and PM within half and hour."
PW.11 is Taimoor Khan constable. He was entrusted with the process issued against the appellant/accused Taimoor Abbas under Section 87, Cr.P.C. as well as under Section 204, Cr.P.C. He processed the same as required. PW.12 is Nasir Khan constable. He stated that he is marginal witness to the recovery memo. EX.PW-12/1, vide which the Investigating Officer recovered and took into possession motorcar bearing registration No, 1631 LOA from the spot. He verified the recovery memo. to be correct. He further deposed that the Investigating Officer handed over to him the injury sheet which he took to the civil hospital Nowshera alongwith injured and handed over the same to the doctor.
PW.13 is Asghar Ali LHC. He is marginal witness to the pointation memo. - Ex.PW-6/7, conducted by the appellant/accused Muhammad Ishaq and recovery memo. Ex.PW-6/8 through which the accused had handed over the .30 bore pistol to the Investigating Officer as weapon of offence. He is also marginal witness to the pointation memo. Ex.PW-1/3 of accused Javed. He verified the above mentioned memos. to be correct.
PW.14 is Dr. Ijaz Ahmad SMO. He stated as under: "During the days of occurrence I was posted in DHQ Hospital Nowshera. On 25.04.2008 at 14.05 p.m. I examined Javed Khan and found the following:-- Being an old time lapse case it should be reformed to a standing Medical Board for opinion to LRH Peshawar. These was my observations which are Ex.PW. 14/1 then the accused Javed Khan referred to DNA examination through Letter No,438 dated 29.04.2008, the letter is Ex.PW 14/2. Then I received expert opinion from Forensic Science Laboratory Khyber Medical College Peshawar which I noted on 09.05.2008. The sane is Ex.PW-14/3"
PW.15 is Roshan Zeb Khan Sub-Inspector. While on gasht on 13.4.2008 at 23.30 hours, he received information regarding the occurrence. He rushed to the spot where injured Sawab Khan son of Nawab Khan resident of Hangu reported the matter to him and he reduced that in the shape of murasila (Ex.PA/1). He read over the same to the injured complainant who, after admitting the same to be correct, thumb marked the same. He verified the murasila to be correct and signed by him. He also prepared the injury sheet Ex.PW-10/2 of the deceased then injured. He further informed the police station that the deceased then injured had died due to his injuries and in this respect a Nagai Mad No,38 dated 14.04.2008 PS Aza Khel Ex.PW 15/1 was prepared by the Muharrir. He also prepared the inquest report of the deceased which is ex.PW-15/2 and injury sheet Ex.PW-10/1. He verified all the above mentioned documents to be prepared by him and bear his signatures.
8. After close of the prosecution evidence, the appellants/accused made statements under Section 342, Cr.P.C., wherein they denied the allegations of the prosecution and pleaded their innocence.
However, they neither opted to record their statements on oath nor produced any evidence in their defence.
9. We have heard the learned counsel for the appellants as well as learned counsel for the State and have perused the record with their assistance.
10. Learned counsel for the appellant Javaid submitted that:-- this was an unseen occurrence wherein the appellant has been falsely implicated. The FIR was registered against unknown persons and the appellant was not nominated as an accused. name of the appellant/accused appeared only after ten days in the statement of Bilal son of the deceased Sawab Khan.
He made statement under Section 164, Cr.P.C. on his "satisfaction" about the involvement of the accused but he has not disclosed the source of his satisfaction.
PW.2 Bader Munir and PW.3 Akhtar Hussain are the witnesses who took one of the insured appellant/accused to the hospital and only on the basis of conjectures they concluded that they were the accused who had committed the offence.
No proper identification parade was conducted through PW.4 Rahman Shah.
The charge under Section 17 (4) Harabah requires that the accused should be adult. However, the appellant was 15 years old at that time.
11.The learned counsel who represented the other two co-accused namely Taimoor Abbas and Muhammad Ishaq submitted that:-- The case of prosecution is based on the last seen evidence provided by PW.4 Rahman Shah but besides the fact that he had not seen the accused immediately before the occurrence, he has not disclosed any features of the appellants.
The recovery of weapon of offence is also doubtful as the ingredients of Section 103, Cr.P.C. have been violated and no witness from the public was associated.
The motive is not known because thee vehicle of the deceased was not snatched.
The pointation of the place of occurrence is immaterial for the reason that it was already known to the Investigating Officer and was located on a thoroughfare.
Whether co-appellant, was really injured and taken on the night to the hospital, is not established on record.
The empties were not sent to the Forensic Science Laboratory immediately. These were sent with the pistol together.
No identification parade was conducted.
Learned counsel for the State submitted that the case of prosecution is proved by the evidence of last seen provided by PW.4, the recovery of weapon of offence and the statement of Bilal as well as the statements made by PW.2 and PW.3 under Section 164, Cr.P.C.
12. We have given our anxious considerations to the points raised, by the learned counsel for the parties and have minutely gone through the evidence on record.
It transpires that the deceased Sawab Khan was a driver who was running Taxi No, 1631-LOA. On 13.4.2008 his taxi was hired by some unknown persons at Hangu for Nowshera. According to the FIR lodged on the statement made by the deceased before his death, when they reached at the place of occurrence one of the three persons fired at him and resultantly he got seriously injured.
Admittedly the three persons were unknown to him and therefore no one was nominated by-him in the Murasila, which was recorded at 11.30 p.m on 13.4.2008. It was incorporated into FIR thereafter.
The said complainant thereafter succumbed to the injuries next day and could not survive to identify anyone of the accused, Subsequently, on 22.04.2008, PW.1 Muhammad Bilal son of the deceased Sawab Khan made statement, under Section 164, Cr.P.C., wherein, inter alia, he stated that he was searching the accused on his own and after having been "convinced", nominated the appellants/accused Taimoor Abbas, Muhammad Ishaq and Javed as the accused who had committed the murder of his father. A day earlier, PW.2 Bader Munir and PW.3 Akhtar Hussain had also recorded their statements under Section 164, Cr.P.C. wherein, inter-alia, they stated that Taimoor Abbas, Muhammad Ishaq and one other person had hired their wagon for hospital and had disclosed them on the way that their companion had got injured and they were to take him for treatment. The said three persons deboarded from that wagon near the hospital and when both these PWs returned, they came to know that murder of a person had taken place at Pir Pai Mor.
Another piece of evidence )as brought on record by PW.4 Rahman Shah who was having a Medical Store in Hangu. He deposed that on 13.4.2008 the deceased Sawab Khan had come to his shop at 6.00 p.m. in his Vehicle No, 1631-LOA and had informed him that the three persons sitting in the motor car had hired his taxi and he was taking them to District Nowshera. The deceased had purchased some tablets for headache. Later on this PW came to know about the names of the accused facing trial as Taimoor Abbas, Muhammad Ishaq and Javed. He had recorded his statement under Section 161, Cr.P.C. The Investigating Officer PW.6 Amir Zaman Khan ASI whose statement has been reproduced hereinabove, arrested the appellant accused Muhammad Ishaq and on his pointation he prepared memo. (Ex.PW.6/7). He also took into possession one .30 bore pistol. He also arrested the appellant/accused Javed and prepared his injury sheet (Ex.PW6/11).
After necessary proceedings under Sections 87 and 204 Cr.P.C., he, subsequently, arrested the appellant/accused Taimoor Abbas also and prepared his supplementary challan.
13. As is evident from the above, the occurrence was un-witnessed and the deceased himself; prior to his death, lodged an FIR against some unknown persons. Therefore, it is a case of circumstantial evidence only and the whole case of prosecution hinges on the testimony of PW.1 Muhammad Bilal, PW.2 Bader Munir, PW.3 Akhtar Hussain and PW.4 Rehman Shah. However, for the reasons summed up in the subsequent paras, their evidence does not provide complete links of the chain and each testimony of these PWs stops at a certain point and does not advance the case to the neck of the appellants/accused, as is required in all cases based on circumstantial evidence. Their evidence seems to be totally based on conjectures and surmises. The names of these appellants/accused were disclosed by PW.2 and PW.3 on 21.4.2008 but their statements only reveal that they owned a wagon which was hired by the three appellants/accused who had asked him to take one of their injured companion to the hospital on the night of occurrence, and when, thereafter in the morning, they came to know that murder of a taxi driver has taken place, they on their own inferred that the appellants must be the persons who were involved in that murder. They have given no reason why they came to that conclusion when the place of occurrence where the murder had taken place was more than a mile away from their house. None of them had referred to any evidence that could provide basis or any link for their opinion. Moreover, as deposed by PW.14 Dr. Ijaz Ahmed SMO had examined the injured appellant Javaid Khan on 25.4.2008 and not on 13.4.2008, i,e, the day of occurrence. The other Doctor who allegedly examined the appellant/accused Javed on the night intervening between 13 and 14 April, 2008 has not been produced. Even otherwise having some injury on his person and going to the hospital on the said night is not a proof in itself that the injured person must have committed murder of some person unless there is evidence that he got injured in cross firing. Admittedly there is nothing on record to show that Sawab Khan deceased had any weapon which was used during struggle between him and the unknown accused. The deceased hinself has mentioned nothing about any such scuffle, even in the Murasila/FIR. So far as the statements of PW. 1 Muhammad Bilal is concerned, it was recorded on 22.04.2008 thereafter and is obviously in line with the statements of PW.2 and PW.3. He himself must be "convinced" but he has not disclosed any source of evidence which had made him to believe that the appellants/accused had committed the murder of his father. He has also admitted that he was not present with his father at the time he was driving the taxi neither was present on the taxi stand at Hangu from where it was hired by some unknown persons. At that time, he was residing at Peshawar and as admitted by him he is not eye witness of the occurrence. In his cross- examination he has also admitted that his father had not disclosed the names of the accused facing trial as they were strangers to him. According to him, the actual fact regarding the hiring of taxi of his father was not even in knowledge of his cousin PW.4 Rehman Shah. As stated above, PW.4 was having a medical store wherefrom the deceased purchased some tablets for headache.
He only informed him that three persons sitting in the car had hired his taxi for Nowshera. He had named none of them as they were strangers to him. In his examination-in-chief he. stated that later on he came to know about the names of the accused. However, he has not disclosed the source who told him the names. It is also not stated by him that the three accused or even any one of them had deboarded from the car at that time or that he himself had gone near the taxi to see off the deceased. Therefore, he had no occasion to see the accused or give their features.
According to him, the names of the accused were disclosed to him by son of the deceased and as stated above, PW.1 Bilal son of the deceased was not eye-witness of the occurrence. The accused belonged to a very far-flung area and none of PW.1 or PW.4 knew their names. PW.4 had admitted that he had not identified the accused during investigation. Admittedly no proper identification parade was conducted by the prosecution despite the application moved for this purpose. Such is the position of recording of confessional statement when the appellants refused to make any confession. Regarding the contention about recovery of pistol we agree with the learned counsel that, report submitted by the Forensic Science Laboratory report is doubtful. As mentioned above, the two empties had been recovered from the place of occurrence on 14.4.2008 and the pistol was recovered from the appellant/accused Muhammad Ishaq on 24.4.2008. However, the empties as well as the pistol were sent together to the FSL where these were received, on 30.04.2008. The experienced Investigating Officer was supposed to send the empties separately as soon as they were recovered before the recovery of the pistol which was allegedly used for firing these shots. His failure to do so has resulted in creating doubt and this factum is sufficient to shatter the sanctity of FSL report. One also wonders why under what circumstances and what for the deceased was put to death when his vehicle was act snatched and was recovered from the spot. There is also no other reason why a person belonging to Hangu District, was brought, to District Nowshera and done to death just for no rhyme or reason.
14. Keeping in view the above appraisal of evidence, we have come to the irresistible conclusion that the case of prosecution is based on conjectures, presumptions and surmises and it is well- settled that conjecturers and surmises how strong these may be, cannot take the place of legal evidence and particularly in cases which-carry capital punishment.
15.Consequently, for the reasons stated above, all the three appeals are allowed, conviction and sentences of the appellants namely Javaid, Taimour Abbas and Muhammad Ishaq are set aside and by extending them the benefit of doubt, they are acquitted of the charges. The said appellants are in jail, they shall be released forthwith if not required in any other case.
16.These are the reasons for our Short Order of even date.