MUHAMMAD HALEEM, J.-These appeals, by special leave, arise from the judgment of the Lahore High Court, Lahore, dated 2nd of October, 1975, by which Criminal Appeal No. 538 of 1974 was dismissed.
2. The appellants, Shaukat, Ahmad Khan and Atta Ullah, in Criminal Appeal No. 190 of 1977 and Noor Muhammad in Criminal Appeal No. 191 of 1977 were charged along with Wilayat and Mushtaq under sections 148 and 302 read with section 149, P. P. C. For the murder of Muhammad Yaqub, but before the trial opened, Mushtaq, who in the meantime was granted bail, was murdered by Liaquat Ali, P.
W. 9 and Mahboob, P. W. 10, and a case as registered against them for his murder where after they absconded and are not traceable till to date. .
3. According to the prosecution, about two years before the present incident the deceased had fired at Ahmad Khan and a case was registered against him under section 307, P. P. C. But it ended in his acquittal as the parties compromised between themselves. There was also a dispute over the land and to resolve it the Panchayat gave a piece of land belonging to Nawab Khan, father of Ahmad Khan, Noor Muhammad and Wilayat which was adjacent to the house of the deceased, to him but this transaction was not entered in the revenue record. Three days before the present incident, the deceased started raising a construction on it and on being threatened with dire consequences by Ahmad Khan and others, he stopped doing so. At 4-30 p.m. On 29th of December, 1972, as the deceased was returning from his Behak with a milkpot, he was accosted by the appellants, Shaukat, Atta Ullah, Ahmad Khan, Noor Muhammad, Wilayat and Mushtaq near their Dera in village Qasimpur, where both the parties resided and from amongst them, Shaukat, Ahmad Khan and Atta Ullah had guns, Noor Muhammad a revolver ; and Mushtaq and Wilayat Lathis. Ahmad Khan raised a lalkara and fired a shot from his gun but the shot went astray and thereupon the deceased ran towards his house followed by the appellants, Wilayat and Mushtaq and those armed with guns again fired at the deceased when he came near the house of his brother Manzoor who was hit on the back, neck and arms as a result of which he fell down and died instantaneously. Some 4 pellets also struck the katcha wall of the house of Manzoor from where they were later extracted. The incident was alleged to have been witnessed by Liaquat Ali and his step-brothers Ashiq Hussain and Manzoor. Liaquat Ali on the next day lodged the report at Police Station, Naushehra Virkan, District Gujranwala which was six miles away at 6 p.m.
4. From the spot blood-stained earth, a milk pot, a pair of shoes and two wads were secured besides four pellets embedded in the katcha wall. On being arrested, Shaukat, Ahmad Khan, Atta Ullah and Noor Muhammad produced their licensed weapons. The deceased suffered five fire-arm injuries and two minor abrasions.
5. At the trial, the prosecution sought the transfer of the statements of Liaquat Ali and Mahboob, who had since absconded under section 33 of the Evidence Act on the strength of the statement of the process-server, Muhammad Rafiq, P. W. 8, who bad stated that there was "no likelihood of their arrest in the near future" on the information apparently available at the same Police Station in connection with a case having been registered against them on 28th of November, 1973, under sections 307 and 302 read with section 34, P. P. C. Which was objected to by the counsel for the appellants but despite it the Court held "The fact remains that their service cannot be effected in the near future as far as the disposal of this case is concerned," and allowed the request of the prosecution. Consequently, their statements stood transferred to the Sessions file. Manzoor, who was examined before the Inquiry Magistrate, was abandoned and so was Ashiq Hussain, as having been won over.
6. The trial Court relied on the solitary evidence of Liaquat Ali which according to it was corroborated by the recoveries of the licensed weapons, medical evidence and motive and, accordingly, convicted Shaukat, Atta Ullah, Abmad Khan and Noor Ahmad under sections 148 and 302 read with section 149, P. P. C. And sentenced each of them to three years' R. I on the first count and to life imprisonment on the second count as in its opinion it was not established as to who fired the fatal shot. It further imposed a fine of Rs. 1,000 each on the later count or in default to suffer rigorous imprisonment for six months. The sentences were ordered to run concurrently. The benefit of doubt was, however, given to Wilayat as no part was attributed to him in the F. I. R. Nor in the statement of Liaquat Ali and he was, accordingly, acquitted.
7. On appeal, the High Court upheld their convictions and sentences. In holding so, the High Court also placed reliance on the solitary statement of Liaquat Ali while ignoring the objections as to its admissibility on the following ground: "His non-availability at the trial was proved by the prosecution and his testimony before the Committing Magistrate was transferred to the Sessions records in accordance with law and is admissible in evidence."
The High Court also described his evidence as one giving ---a--- graphic picture of the occurrence and the names of the appellants who carried the fire-arms apart from two others".
Credibility was, further inferred from three factors namely, that it was consistent, uniform and inspired confidence. An additional reason which gave value to it was that the appellants had failed to shake it in cross-examination or to show any circumstance as to why he would falsely implicate the appellants, or substitute them for the real culprits." The High Court further believed the motive and gave credence to the recovery of the licensed guns as a circumstance corroborating the ocular testimony. However, while upholding their guilt, the High Court acquitted them of section 148, P. P. C. But maintained their convictions under section 302 read with section 34, P. P. C.
8. Leave to appeal was granted to consider whether the pre-condition for the transfer of the statements under section 33 of the Evidence Act existed and further as to whether Liaquat Ali could be regarded as a reliable witness, who was himself involved in a murder case, resting the conviction on his evidence in the context of the fact that his two other brothers, Ashiq Hussain and Manzoor, were not examined as having been won over. It will not be out of place to mention here that during the pendency of the appeal Ahmad Khan died and qua him the appeal has abated.
9. The learned counsel for the appellants contended that the statements of Liaquat Ali and Mahboob were transferred to the Sessions file in violation of section 33 of the Evidence Act as it was not strictly proved that they had absconded and, therefore, would not be available in the near future to give evidence in the case. In support of it he relied on the statement of Muhammad Rafiq, P. W. 8, and the reports Exhs. P. W. 8/C and P. W. 8/D submitted by him. All that he stated was "both the P. Ws. Are absconders in case F. I. R. No. 174 dated 28th of November, 1973, under section 302/ 307/34, P. P. C. For murdering Mushtaq who was accused in the present case. There is no likelihood of their arrest in the near future." This process server is of the same Police Station and the information apparently given is from the record available at the Police Station. No effort seems to have been made by him to execute the summons nor did he depose to the fact that warrants were issued for their arrest in the other case but as their whereabouts were not known, by reason bf their abscondence they could not be executed and, therefore, they were declared to be proclaimed offenders under sections 87 and 88, Cr. P. C. Therefore, what was deposed to was hearsay which cannot take the place of strict proof as was necessary to be adduced according to the dictum of this Court in Ali Haider v. The State (PLD 1958 SC (Pak.) 392). The trial Court took the statement of the process server on its face value while holding it to be a reality in the absence of further proof that an attempt was made to search them but as they had absconded, their whereabouts were not known which could further be proved by adducing evidence that they had been declared absconders in the other case. The High Court also without applying its mind on this aspect of the procedure merely held their non-- availability to have been established by the prosecution" which was a disregard of the provisions of section 33 of the Evidence Act. This alone would suffice to keep their statements out of consideration as they do not legally form part of the evidence in the case.
But nonetheless we examined the worth of the solitary eye-witness, Liaquat Ali, as to whether it could form the basis of conviction ; and as regards Mahboob, his evidence in no way advance the case of the prosecution.
10. The learned counsel next submitted that the testimony of Liaquat Ali cannot be believed for it is not a truthful account of the main incident. The first prominent feature which requires consideration is as to how than shots struck the deceased. According to the prosecution case, as set out in the F. I. R., the first shot was fired at the deceased by Ahmad Khan which proved ineffective. There is no good reason to suppose as to why it would not prove effective and allow the deceased to run for some distance towards his house. No tangible proof is available to establish it.
Again the deceased was shot at in front of the house of Manzoor not only by those armed with guns but also by Noor Muhammad. The later assertion was not made in the F. I. R. But at the trial Liaquat Ali also attributed a part to Noor Muhammad for firing his revolver at the deceased of which there is no proof as only 5 pellets were extracted from the body of the deceased ; and if the revolver shot had missed him then like the pellets the bullet would also have struck the wall which is not so. Next, the number of pellets extracted from the wall and the body of the deceased show that an S.G cartridge which contains about the same number of pellets, was used which fact is further strengthened from the spread of the pellets causing the same dimensional inlet injuries. In this context if the site-plan is examined, it will be found that the pellets were also extracted from the Western katcha wall of the house of Manzoor where the deceased was shot at and if the prose- -cution version is to be accepted that the deceased ran on the path which was to the north of the house of Manzoor towards his house then the pellets should not have struck the Western wall which is not so. It seems to us that a single shot was fired by someone from behind the 1 -- ft. Tall outer wall of the house of Atta Ullah which was under construction as that can only be consistent with the recovery of the pellets from the Western wall of the house of Manzoor coupled with the pellets extracted from the body of the deceased causing the same number of fire-arm injuries. If this be so then Liaquat Ali had falsely attributed firearm injuries to those armed with guns and Noor Muhammad. There is also false implication of Wilayat and Mushtaq to whom no part was attributed in the crime. Ashiq Hussain and Manzoor who could have supported the prosecution case were not examined as the allegation was that they had been won over. In a serious case of murder where their own brother was done to death it is difficult to accept that they- would not have come forward to give evidence in the case which factor again cannot be lightly brushed aside, and, therefore, there is no reason why a presumption should not be drawn against the prosecution that if they had been produced they would not have supported the prosecution case.
Having reached the conclusion that only one shot was fired, the entire prosecution case becomes doubtful in regard to the participation of the appellants for it is not known as to who had fired the single shot. On this view of the matter the evidence of Liaquat Ali cannot be accepted. Neither the trial Court nor the High Court had appreciated his evidence in its proper perspective while accepting it ; and what is more is that they had also taken the recovery of the licensed guns as a corroboratory factor which had no evidential value.
11. For the foregoing reasons we find that the prosecution has, in either case, failed to establish its case against the appellants. Accordingly, we allow their appeals and acquit them. They should be released forthwith if not required in any other case.
On the conclusion of the arguments we had announced the result and the above are the reasons for it.