' MRS. IRSHAD QAISER, J.--Mehboob 'alias' Booba son of Jumma, Caste Gujjar, resident of Kaeyan, Mansehra (Appellant) was tried by Additional Sessions Judge, Mansehra being involved in case F.I.R. No,1 dated 1-1-1995 registered under sections 302/324/148/149, P.P.C. Police Station 'Shinkiari' on the charges of 'Qatl-i-Amd' of three persons namely; Mst. Zojan, Afzal and Luqman and attempt to commit 'Qatl-i-Amd' of P.Ws. Abdul Wahid, Mst. Haneefa and Mst. Ayesha in furtherance of common object with his acquitted co-accused Malik Aman, Mst. Hussan Jan, Elahi Bakhsh, absconding co-accused Mst. Zenaba and Javed and dead co-accused Kala and Jumma and consequently he was convicted and sentenced for the offences, as follows:--
(i) Appellant was convicted and sentenced to death on two counts under section 302(b) of Pakistan ' Penal Code, 1860 and to pay Rs,10,00,000 as compensation to the legal heirs of each deceased under section 144-A Cr.P.C. Or in default thereof to undergo Simple Imprisonment for six months;
(ii) He was also convicted and sentenced to ten years' R.I for sharing common Intention with accused Kala and Malik Aman by whose fires Luqman was killed.
(iii) He was further convicted and sentenced to ten years' R.I for attempt to commit 'Qatl-i-Amd' of Abdul Wahid and to pay a fine of Rs,10,000. He was also convicted and sentenced to ten years imprisonment as 'Tazir' for causing 'Itlaf-e-Salahiyat Udw' and to pay 'Arsh' equivalent to the value of `Diyat' amounting to Rs,202,023.75 or in default thereof to be dealt with in the same manner as if sentenced to simple imprisonment until 'Arsh' is paid in full or may be released on bail, if he furnishes security equal to the amount of 'Arsh'.
(iv) He was further convicted and sentenced to ten years' R.I for attempt to commit 'Qatl-i-Amd' of Mst. Hanifa and to pay a fine of Rs,10, 000 or in default thereof to suffer one month's SI. He was also convicted and sentenced to five years' imprisonment as 'Tazir' for causing 'Ghayr-Jaifah mudihah' any to pay 'Daman' amounting to Rs,10,000 or in default thereof to remain in jail and be dealt with in the same manner as if sentenced to simple imprisonment until 'Daman is paid in full or may be released on bail, if he furnishes security equal to the amount of 'Daman'.
(v) He was further convicted and sentenced to ten years' R.I for attempt to commit 'Qatl-i-Amd' of Mst. Ayesha and to pay a fine of Rs,10,000 or in default thereof to suffer one month's S.I. He was also convicted and sentenced to three years' imprisonment as 'Tazir' under section 337-F(ii) P.P.C. For causing 'Ghayr-Jaifah badi'ah' and to pay 'Daman' amounting to Rs,10,000 or in default thereof to remain in jail and be dealt with in the same manner as if sentenced to simple imprisonment until 'Daman' is paid in full or may be released on bail, if he furnishes security equal to the amount of 'Daman'.
(v) He was also convicted and sentenced to three years' R.I under section 148 P.P.C. And to pay a fine of Rs,5,000 or in default thereof to further undergo ten days S . I.
(vi) The trial Court also held that all the sentences were to run concurrently.
(vii) Benefit of section 382-B, Cr.P.C. Was also extended to the appellant.
2.. The facts of the case as narrated in the F.I.R. (Exh.PA) that complainant Mehendia son of Hameed Ullah, Caste Gujjar, aged about 70/75 years, resident of Garang on 1-1-1995 at 1330 hours, reported to Gul Zareen Khan SHO, Police Station Shinkiari, Mansehra (P.W.6), about the occurrence, which he recorded as a. 'murasila' (Exh.PA/1).
' The complainant alleged therein that on 31-12-1994 at about 'Peshen Wella', he alongwith his son Luqman and his children were sitting on the roof top of the house, when Booba, Javed, Malik Aman and Kala sons of Jumma duly armed with rifles, Mst. Zainaba wife of Jumma, Mst. Hussan Jan wife of Kala and Jumma son of Shera came on hillock in front of the house. Jurruna, Mst. Zainaba and Mst. Hussan Jan shouted at Booba, Javed and Kala to kill them, upon which Booba and Javed sons of Jumma opened firing, as a result, his daughter-in-law Mst. Zojan and grandson Afzal aged about one year, who was in the lap of his mother and daughter-in-law of the complainant, were hit and died on the spot. Kala and Malik Aman fired at his son Luqman, who was hit and died on the spot. Thereafter, Booba and Javed sons of Jumma made firing, as a result thereof, his grandson Abdul Wahid aged about three years and granddaughter Mst.Hanifa aged about 6/7 years sustained injuries on eyes and right foot, respectively. Kala son of Jumma fired at his daughter-in- law, which hit on the legs of his daughter-in-law Mst. Ayesha and she got injured. The occurrence was stated .To have seen by the complainant, his wife Mst. Rabia, daughter-in-law Mst. Ayesha and granddaughter Mst. Safia. The motive for the offence was stated to be the murder of Qayyum son of Jumma by stepbrother of complainant namely; Muhammad Din, and deceased Luqman was removing snow from the roofs of the house of Muhammad Din and Munshi.
3. After completing the investigation, the challan was put in court against accused Mehboob alias Booba, Malik Aman, Mst. Hussan Jan, Elahi Baksh, Mst. Zainaba, Javed, Kala and Jumma. In the earlier trial, accused Malik Aman, Mst. Hussan Jan and Elahi Baksh were acquitted of the charge by the learned- Sessions Judge, Mansehra vide judgment dated 11-6-1999. It may be mentioned that no appeal has been filed by the complainant party against the said acquittal order. Accused Mst.
Zainaba has absconded during her trial and accused Javed has been absconding after the occurrence: While the proceedings against accused Kala and Jumma were abated due to their death. The present appellant was arrested and supplementary challan was submitted against him, who on denying the charge pleaded his innocence and demanded a trial, which thus followed.
4. The prosecution produced nine witnesses to prove guilt of the present appellant, which included the eye-witness, Mst. Ayesha (P.W.9), while statement of Mehendia complainant-eye-witness, which was earlier recorded as P.W.6 in the trial of acquitted co-accused, was shifted to this case, with the leave of the Court, as he was then dead. Besides, Ijaz Ahmad S.H.O. Appeared as (P.W.1), who arrested the present appellant and submitted supplementary challan against him.
Muhammad Manzoor DFC (P.W.2) had completed the process of sections 204 and 87, Cr.P.C, who stated that he searched for the appellant at his place of abode and surrounding areas but could not trace him. Statement of Ghazi son of Mir Zaman, recorded during the previous trial as (P.W.5) being recovery witness of bloodstained articles and spent bullet, was shifted to the file of present trial. Ghularn Hussain Shah Retired A.S.-I. (P.W.5) on receipt of Murasila (Exh-PA/1) had registered the case vide F. I R (Exh. PA).The Investigating Officer Gul Zareen Khan Inspector recorded his statement as (P.W.6), who narrated the entire events and proceedings of investigation conducted by him. Aurangzeb S.I. (Retired) (P.W.7) had obtained police custody of the appellant from the Judicial Magistrate and after expiry of said custody, appellant was produced in the said Court, who was sent to judicial lockup. Fazal Khan S.I. (Retired) (P.W.8) submitted challan against the present appellant under section 512 C.P.C. And supplementary challan against accused Mst. Zainaba. The medical evidence was rendered by Lady Dr. Seema Dilawaiz (P.W.2) and Dr. Shamim Afzal (P.W.4).
The statements of the said Medical Officers are reproduced below for convenience:-- ' Lady. Dr. Seema Dilawaiz (P.W-2), who had conducted the autopsy on the dead body of deceased Mst. Zojan wife of Luqman on 2-1-1995 and found the following injuries, on external examination:- "EXTERNAL EXAMINATION.
Stout wearing clothes, stained with blood (shalwar & shin) with corresponding holes on the shirt.
Rigor mortis present. Post mortem lividly present. Body not decomposed.
INJURIES
(I) Firearm injury. Entrance wound on the left occipital area circular in shape, 1/2 cm in diameter.
(2) Exit wound is present on the right occipital area of scalp. It is oval in shape, length 3 cm, breadth 1-1/2 cm adjacent sutures area disrupted. Brain tissue is injured. Skull cavity full of btood.
Entrance wounds on upper pole of left arm and exit wound on the posterior aspect of left arm.
(3) Firearm entrance wound 2" laterally from the right axilla on the lateral margin of the right scapula. Shape circular. Size 1/2 cm in diameter.
(4) Exit wound 4 cm below the left axilla in the mid axillary line. Shape circular. Size 1-1/2 cm in diameter.
INTERNAL EXAMINATION CRANIUM AND SPINAL CORD Scalp and skull injured. Membranes and brain injured.
THORAX: Walls, ribs and cartilages injured. Plurea injured. Right and left lungs injured. Blood vessels injured.
Stomach was healthy and empty and full of gasses. OPINION: In my opinion, cause of death is multiple firearm injuries to vital organs. Probable time between injury and death was within one hour and between death and PM was 12 to 48 hours."
On 1-1-1995 at 5.30 pm, she had examined injured Mst. Ayesha wife of Abdul Rehman, aged about 26/27 years, and found the following:- "Left Leg.
(1) Left leg entrance wound. There is a small irregular wound slightly rounded. It is about 6 cm in size. Edges inverted. It is slightly bloodstained. No tattooing of the entrance wound. It is 6 1/2" from the lateral malleolus of the left leg.
(2) Exit wound. It is about 5" from the medial malleolus. Margin everted. Shape irregular, slightly rounded. Size .5 cm. Small amount of fresh blood is oozing out from it. No tattooing.
"Right Leg.
(1) Entrance wound. It is about 3" from the medial malleolus. Wound is slightly rounded in shape.
Edges are inverted. Wound is bleeding. It is about 1.2 cm in size. No tattooing.
(2) There is another wound 2" laterally and 1/2 cm downwards from the entrance wound. It is about 2 cm in size. It is lacerated and flesh from inside of this wound is bulging out. No bleeding from this wound. The chin is fractured.
Opinion Duration/time: 28 to 32 hours. Nature of injury: will be decided after the x-rays report.
' Weapon: Firearm.
' Advised x-rays both lower legs both views.
Dr. Shamim Afzal (PAT. 4) on 1-1-1995 at 5.45 pm had examined injured Abdul Wahid son of Luqman, aged about three years, and found the following:- "FINDING.
(1) Injury No,1 . An entrance wound on the lateral aspect of the left eye margin tattered, irregular in shape and also blackening of the margins present, wound involving the left eye, no fresh bleeding at the moment.
(2) Injury No,2. An exit would irregular in shape on the right side of the face involving the right side of the nose, right eye and upper half of cheek, no fresh bleeding at the moment present.
' The patient was referred to DHQ Hospital Mansehra for proper management. Opinion ' Duration: within 48 hours. Weapon: Firearm.
Nature of injury: Grievous.
He had also examined injured Mst. Hanifa Bibi daughter of Luqman, aged about 4-1/2 years on the same day at 06-00 p.m. And found the following injuries:-
(1) Injury No, 1 . An entrance wound irregular in shape on the medial aspect of the right foot with whitish margin, no bleeding and no tattooing margin.
(2) Injury No,2. An irregular exit wound on the lateral aspect of the right foot just below the right lateral malleolus with missing tissue. No fresh bleeding at the moment seen (exposing the bones).
' The patient was referred to DHQ Hospital Mansehra for proper management.
Opinion Duration: within 48 hours. Weapon: Firearm. Nature of injury: Grievous.
' He had also conducted autopsy on the dead body of deceased Lugman son of Mehendia, aged about 40 years on 2-10-1995 at 10-15 am, and found the following:-- "EXTERNAL EXAMINATION: Rigor mortis present. Body stout. Post mortem lividity present. Clothing present, blood-stained with corresponding holes.
(1) Firearm entrance wound circular in shape on the right of the chest at the anterior axillary line at the level of 9th intercostal space with Dozing blood diameter about 112 cm,
(2) Firearm exit wound on the left side of the chest, irregular in shape at the mid axillary line at the level of 10th intercostal space with protruding of tissue.
(3) Firearm entrance wound on the anterior aspect of the left forearm at mid-level oblong in shape with blood clot.
(4) Exit firearm injury on the posterior aspect of the left forearm mid zone oblong in shape with clot.
(5) Firearm entrance wound on the right thigh mid zone with oozing blood circular in shape, size 112 cm.
(6) An exit wound irregular in shape on the medial aspect of the right thigh mid zone.
INTERNAL EXAMINATION THORAX: walls, ribs and cartilages, pleurae, right lung injured.
Abdomen: walls, peritoneum, stomach, small intestines, liver, spleen injured.
MUSCLES, BONES, JOINTS: Right femur fractured. REMARKS: In my opinion the cause of death is multiple firearm injuries, haemorrhage, shock and death.
' Probable time between injury and death was within one hour.
' Probable duration between death and PM was 12 to 48 hours."
He had also conducted autopsy on the dead body of deceased Afzal son of. L,uqman, aged about 1 year on 2-1-1995 at 10-14 am, and found the following:-- "EXTERNAL EXAMINATION: Rigor mortis present. Body stout. Post mortem lividity present. Clothing present, blood-stained with corresponding in the cap.
(1) A firearm entrance wound on the right temple region just above the right ear with tattered scalp. (irregular).
(2) A big exit wound on the left frontal region irregular in shape with missing bone.
INTERNAL EXMINATION Cranium and spinal cord, scalp skull, injured. Membranes-brain injured.
THORAX: Healthy. Abdomen: Healthy.
Stomach: Empty.
MUSCLES, BONES, JOINTS: Skull bones fractured.
REMARKS: In my opinion the cause of death is due to firearm injury damaging the brain.
' Probable time between, injury and death was sudden. Probable duration between death and PM was 12 to 48 hours.
5. The appellant was examined under section 342, Cr.P.C, wherein, he denied his involvement in the commission of the offences for which he was charged. However, he wished not to be examined as his own witnesses on oath in rebuttal of charges against them within the contemplation of section 340(2), Cr.P.C.
6. On conclusion of the 'trial, the learned trial Court convicted the appellant and sentenced him vide judgment dated 30-5-2008. The detail of sentences awarded to him has already been mentioned in the preceding paragraph of this judgment. Hence, the appellant filed instant appeal before this Court.
' Similarly, the Sessions Judge, Mansehra has sent Murder Reference No,1 of 2009, under section 374 of the Cr.P.C. For confirmation of death sentence awarded to appellant Mehboob alias Booba.
7. Learned counsel for the appellant vehemently contended that the F.I.R. Was lodged on the spot and that too after unexplained delay of twenty four hours and there was possibility of consultation and preliminary investigation and thus lost its evidentiary value; that the entire 'occurrence was alleged to have taken place on the roof of the house in the F.I.R. But during the investigation of the case certain points in respect of deceased were shown to be inside the room of the house and both the points were not visible to each other; that contents of the F.I.R. And the ocular account of the eye-witnesses are in conflict with the medical evidence, as the Medical Officer has admitted that in case of injury No,1 of injured Abdul Wahid, there was blackening, which according to learned counsel for the appellant was not possible from a distance of 200 yards; that the motive for the occurrence alleged in the F.I.R. Was in fact against Munshi, who stated to have killed the brother 'of the appellant but he was not killed; that the role of the present appellant was similar to that of acquitted co-accused Malik Aman etc., therefore, he was also entitled, to be acquitted on the same grounds; Reliance was placed on Amin Ali and another v. The State (2011 SCM R 323), (1972 SCM R 644), Muhammad Sharif and another v. The State (1997 SCM R 866), Shah Baksh and another v.. The State and others (1990 SCM R 158), Muhammad Anwar v. The State (1976 PCr.LJ 1117) and 1993 SCM R 417.
8. The learned State counsel controverted the submissions of learned defence counsel and he asserted vehemently, that the trial Court with dynamic approach appreciated the entire evidence produced by the prosecution has rightly convicted the appellant; that the presence of eye- witnesses on the spot at the time of occurrence was established without any doubt; that the motive was not required to be proved for awarding death sentence; that in the event of variation in ocular and medical evidence, ocular evidence has to be believed; that the trial Court has' rightly ignored minor discrepancies in the statements of the witnesses, which are quite natural after lapse of time and the testimony of witnesses cannot be discarded for minor contradiction; that the trial Court following the rules of corroboration settled by the apex Court, has rightly considered abscondance of accused as corroborative circumstance; that death can be awarded in absence of mitigating circumstances and lack of motive. Reliance was placed on (2013 PCr.LJ Peshawar 864), (2013 PCr.LJ Peshawar 492), (2009 SCM R 585), (2012 YLR 1026), (2012 M LD 1274), (2008 SCM R 1082), (2009 MLD Peshawar 793), (2006 SCM R 672), (2002 SCMR 786), (PLD 2005 SC 484), (1998 M LD 1090), (2013 YLR 1344) and PLD 2013 SC 472),
9. The valuable arguments of the learned counsel of the parties have been heard and noted, while the record of the case thoroughly perused.
10. Admittedly, one set of co-accused -namely, Malik Aman, Mst. Hussan Jan and Elahi Bakhsh have been acquitted by the learned Sessions Judge, Mansehra in Sessions Case No,1/8 of 1996 vide judgment dated 11-6-1999 and no appeal has been filed against the said acquittal order by the complainant party. However, this Court vide order dated 19-1-2011 had issued suo motu notice to the said acquitted accused.
' It is settled that in such circumstances, the Courts have to be cautious and prudent. The Court has to be dynamic and seek whether the testimony of two eye-witnesses was corroborated by other evidence emanating from an independent source or otherwise.
' Keeping the above principle in mind, when this Court reviewed the testimony of Mehendia (P.W.) and Mst. Ayesha (P.W.9), we could have outrightly rejected the entire testimony of both on the ground of same evidence upon which one set of accused Malik Aman etc. Have been acquitted in the previous trial. However, this Court thought it appropriate to test the veracity of their testimony regarding the present appellant Mehboob and also assess the finding of learned Sessions Judge, Mansehra dated 11-6-1999 in respect of acquitted accused.
' When, this Court reviews, the stance taken by the two, at the time of reporting the tragic incident to the police and later before the Court, this Court notes that strikingly their testimony does not inspire confidence and there are material contradictions in their statements.
' Mehendia was appeared as (P.W.6) during the earlier trial of acquitted co-accused Malik Aman etc. However, during the trial of the present appellant, he was not alive; therefore, his statement was shifted/ transferred to the present trial from the record of previous trial. The testimony of these two alleged eye-witnesses was disbelieved by the learned trial. Court during the previous trial in respect of acquitted co-accused Malik Aman etc. The complainant Mehendia, in his report to the police at the spot, has attributed specific role to each of the accused including the present appellant. He has clearly stated that he along with his son Luqman and his children were sitting on the roof top of the house and with the fire shots of the present appellant and co-absconding accused Javed, his daughter-in-law Mst. Zojan and grandson Afzal were hit and died on the spot.
He further stated that his grandson Abdul Wahid aged about three years and granddaughter Mst.
Hanifa aged about 6/7 years also sustained injuries on eyes and right foot, respectively, with the firing of present appellant and Javed accused. This statement of the complainant was contradicted by "Mst. Ayesha (P.W.9), who stated that on the day of occurrence, my father-in-law P.W. Mehendia, mother-in-law Mst. Rabia and sister in law Mst. Zojan and Mst. Hanifa were sitting in the house and his brother-in-law Luqman was removing snow from the roof top of the house of Munshi Khan and in the meanwhile accused Mehboob alias Booba, Kala and Javed armed with kalashinkov (machines) resorted to firing, which resulted in the murders of Mst.Zojan, Afzal and Luqman, whereas, she, P.W. Abdul Wahid and Mst. Hanifa sustained firearm injuries. The stance of the alleged eyewitnesses in respect of particular place, where the deceased were hit and the injured sustained injuries is totally different and contradictory. P.W. Complainant Mehendia has shown the place of occurrence on the roof top of the house, whereas, P.W. Mst. Ayesha shown the place of occurrence in the house. She had only shown the presence of deceased Luqman on the roof top of the house of Munshi, where he was removing the snow. Moreover, there is another astonishing aspect of the testimony of P.W. Ayesha, who in her statement rendered during the previous trial had shown the incident on the roof of the house. But interestingly, this time she totally changed her narration in this regard without any justification. Admittedly, points Nos.1, 3 to 5, situated inside the house, were not visible from Points Nos.6 to 8, being situated on roof of the house. Point No,9 was the place where Luqman deceased was stated to be removing the snow from the roof of the house of Munshi, step-brother of complainant and Point No,2 was the place, where deceased Luqman was stated to be hit and died with the fire shots of accused after running from Point No,9 to save his life. Points Nos.6 to 8 were Situated in between Points Nos.9 and 2.
Complainant, his wife Mst. Rabia and granddaughter Mst. Safia were standing at Points Nos.6 to 8, respectively. Neither they sustained any injury on their person nor did they try to save their lives by running, as done by Luqman deceased. It does not hold to reason that the assailants, who knew the complainant party, fire at Luqman, Mst. Zojan, Afzal, Abdul Wahid, Mst. Ayesha, Mst. Hanifa and leave complainant, who is not only an eyewitness to the crime but also the father of deceased Luqrnan etc. In the site plan, the distance between Point No,1 and Point No,10 is approximately 200 yards. Point No,1 is situated inside the house, where deceased Mst. Zojan was standing with minor deceased Afzal in her lap and both were stated to be hit and died with the fire shots of present appellant Mehboob and absconding co-accused Javed from Points Nos.10 and 11. The presence of P.W. Mst. Ayesha was shown at Point No,5, which is inside the room, where she was stated to have sustained injuries on her legs with the firing of acquitted co-accused Malik Aman and dead co- accused Kala. It is also an admitted position that not a single empty was recovered from Points Nos.10, 11, 12 and 13, where the presence of present appellant and other co-accused at the time of occurrence was shown. The certainty of both the alleged eye-witnesses regarding hitting of fire shot of a particular accused to a particular deceased and injured, when indiscriminate firing was being made, was not possible and that too when accused were allegedly making firing from a distance of 200 yards.
It may also be noted that P.W. Mst. Ayesha (P.W.9) was an injured witness and her presence cannot be doubted at the place of occurrence but her presence on the spot was not proof of the fact that she has deposed true facts. It has been observed by the apex Court in Amin Ali's case (2011 SCM R 323) that:- "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 or otherwise, because merely the injuries on the persons of P. Ws. Would not stamp them truthful witnesses. It has been held in the case of Said Ahmed supra as under: "It is correct that the two eyewitnesses are injured and the injuries on the persons do indicate that they were not self-suffered. Bu that by itself would not show tha they had, in view of the afore- notee circumstances, told the truth in the Court about the occurrence particularly, also the role of the deceased and the eye-witnesses. I cannot be ignored that these tw witnesses are closely related to the deceased, while the two othe witnesses mentioned in the F.I.1 namely, Abdur Rashid and Rias were not examined at the trial. Th further shows that the injured ey witnesses wanted to withhold t4 material aspects of the case frc the Court and the prosecution w apprehensive that if independe witnesses are examined, their depositions might support the plea of the accused."
' In such state of affairs, the credence of the said crucial star witnesses of the prosecution is highly doubtful. It leads to a definite conclusion that the occurrence had not taken place in the mode and manner as alleged by the complainant in the F.I.R. And later narrated in their Court statements, which creates serious doubt in the prosecution case, the benefit of which should have been given to the appellant. In view of all the facts and circumstances discussed hereinabove, the defence plea was more probable and convincing that all injured and deceased were hit by Luqman deceased as he took up kalashinkov and the same .Was accidently/ abruptly went off. It is settled that both the pleas when put in juxta-position, the plea favourable to the defence will prevail.
11. The prosecution had tried to corroborate the testimony of the two eyewitnesses with the recoveries of spent bullet and blood of the deceased from the place of occurrence. No doubt, the said recovery indicated that an offence had taken place. However, the manner and mode thereof still remained shrouded in mystery. When the prosecution was recovering the said spent bullets and blood from the place of occurrence, which was inside the house of the deceased party, their failure to recover any empties from the place of presence of accused or any other place in the vicinity, when four people were firing with alleged 'Kalashnikovs' seriously marks not only the level of the investigation but the entire prosecution version of the incident.
'The medical evidence produced by the prosecution was forcefully pleaded to support and corroborate the testimony of the eye-witnesses. But the opinion of the medical officer Dr. Shamim Afzal, (P.W.4)' was contrary to the testimony of the two eye-witnesses, when he in his un rebutted statement, clearly stated that there was blackening on injury No,1 on the person of injured Abdul Wahid, which was not possible when the accused were firing from a distance of 200 yards, as stated by the two eye-witnesses and mentioned in the site plan. It is settled that in the event of variation in ocular and medical evidence, ocular evidence has to be believed but when the ocular account itself is inconsistent, contradictory and not confidence inspiring, then, no reliance could be placed thereupon.
' There is no cavil to the proposition, that abscondence may constitute corroborative evidence against a person accused for an offence. However, when there is no direct evidence against an accused or the evidence produced is not reliable or trustworthy to convict a person for a capital charge, then abscondence, even if for a prolonged period, would be of no legal avail to the prosecution's case, as the people do abscond whether they were charged falsely or otherwise.
' The time of occurrence, as noted in `Murasila' (Exh.PA/1) was ' Peshen Welk' on 31-12-1994, whereas the report of the complainant was recorded by the police in crime village on 1-1-1995 at 13.30 hours.
Despite delay of twenty four hours in lodging the report, no explanation was given in the report regarding said delay. "The explanation/ reasons regarding delay was furnished during the trial, when the statements of both the eye-witnesses were recorded, which was stated to be the fear of accused. The distance between the crime village and the Police Station was stated to be 23/24 K.Ms. It is unbelievable and not appealing to the prudent mind that three persons of a family were brutally done to death and several injured but no effort was made to lodge the report. This delay could not be ignored in the peculiar facts and circumstances the present case. However, this delay has not been reasonably explained in the prosecution evidence. Thus, it appears that the case was registered after consultation, deliberation and preliminary investigation on the spot.
12. Now moving on to the motive introduced by the prosecution, this Court notes that the same has not been convincingly proved by the prosecution. In the present case, enmity of accused party was alleged with one Munshi, step-brother of complainant Mehendia, who had allegedly killed one Abdul Qayyum, brother of present appellant and Luqman deceased son of complainant was removing snow from the roof of the house of said Munshi. The eye-witnesses have been unable to convince regarding their veracity and truthfulness as to the mode and manner how the offence took place, which resulted in tragic incident, culminating in loss of three valuable and precious lives. Hence, not proving the motive would be of no avail to the prosecution.
13. All these serious issues create doubts in our mind regarding the prosecution of proving the guilt of the appellant beyond the reasonable doubt. Moreover, the evidence against the present appellant being identical and not distinguishable in any manner whatsoever, the rule of consistency requires that appellant should have similar treatment by allowing him same benefit, as extended to the acquitted co-accused Malik Aman etc. In the circumstances, besides ocular account motive is also common to the present appellant and the case of all the accused is same, therefore, conviction of appellant cannot be sustained. Reliance in this regard may be placed on Muhammad Sharif's case 1997 SCM R 866.
14. These are the detailed reasons for allowing the instant Criminal appeal vide short order dated 2-10-2013 and setting aside conviction and sentences recorded by the learned Additional Sessions Judge, Mansehra vide impugned judgment dated 30-5-2008 and acquitting the appellant of all the charges, levelled against him and answering the Murder Reference No,1/2009 sent by the learned Sessions Judge, Mansehra under section 374, Cr.P.C. For confirmation of death sentence awarded to appellant Mehboob 'alias' Booba in the negative and not confirming the death sentence and directing the appellant to be set free forthwith, if not required in any other case.
15. Before parting with the judgment, it may be noted that the acquittal of co-accused Malik Aman etc. Vide judgment dated 11-6-1999, in view of the forgoing discussion and reappraisal of evidence appears to be based on proper appreciation of evidence and established principles of administration of criminal justice and no irregularity, glaring impropriety, gross legal defect or arbitrariness is found in the said acquittal order, therefore, the suo motu notice issued to the acquitted accused are withdrawn.