SARDAR FAKHRE ALAM KHAN, J.-Jehanzeb, son of Abdul Aziz aged about 28 years, resident of Yaghi Band Payan, Tehsil Charsadda, District Peshawar, was proceeded against under sections 302/404/34, P. P. C. On the allegation that he along with Abdul Wahab and Muhammad Hussain (absconders) in furtherance of the common intention of them all on 29-10-1980 at Digar Wela on a path situated within the limits of village Yaghi Band Miana, murdered Salim Khan deceased aged 28/29 years and when done to death they carried away his- licensed shot-gun. He was tried by Additional Sessions Judge Peshawar, who by his judgment dated 5-12-1981 acquitted the accused of the charge under section 404/34, P. P. C. But convicted him under section 302/34, P. P. C. And sentenced to death and a fine of Rs. 1.0,000 or in default to undergo simple imprisonment for one year. In case of recovery of fine Rs. 5,000 was ordered to be paid as compensation to the heirs of the deceased. Jehanzeb Khan has come up on appeal to this Court while there is a murder reference for the confirmation of death sentence. We propose to dispose of both the appeal as well as the murder reference by this judgment.
2. The incident was reported to Ghulam Mustafa, A. S. I. (P. W. 11) who was on patrol duty of the Illaqa at Yaghi Band Bala by Aziz Rasool a stepbrother of Salim Khan deceased at 6,40 p.m. On the day of occur--rence who recorded his report in the form of Murasila (Exh. P. A/1) read it over to the deponent who after admitting it correct thumb impressed it.. He then sent the Murasila (Exh. P. A/1) to the Police Station, Batagram for the registration of the case which was accordingly registered at 8.00 p.m. The A. S. I. Then proceeded to the spot and on reaching there prepared the site plan (Exh.
P. B.) correctly with all the footnotes at the instance of the eye-witnesses. Blood-stained earth and grass were taken into posses--sion from the spot and sealed it into a parcel, vide memo. (Exh. P.
C/1). He visited the house of the deceased and prepared the injury statement (Exh. P. D/1) and inquest report (Exh. P. D/2) of the deceased. The dead body was despatched to the mortuary for post-mortem examination under the escort of Nazar Gul Constable (P. W. 5). After the post- mortem exami--nation the doctor handed over to Nazar Gul D. F. C. The blood-stained clothes of the deceased and a phial containing four pieces of card-board (P. 5) and five pellets (P. 6). The same were produced before the Investi--gating Officer which he took into possession, vide memo.
(Exh. P. C.). He also recorded the statement of the witnesses. Subsequently the investigation was taken over by the S. H. O. Jehanzeb accused was searched for but he was not available. However, he was arrested on 11-1-1981. The other two co-accused are still absconders.
3. The present case has a peculiar feature, in that, Aziz Rasool the first informant was later charged in a murder case and he became an absconder. Repeated efforts by the prosecution as well as the trial Court to procure his attendance proved futile and the prosecution case was concluded without examining him.
4. In all eleven witnesses were examined by the prosecution in support of its case. The plea of the accused was that of total denial. When ques--tioned about abscondence from 29-10-1980 to 11-1- 1981 his reply was that he did not abscond but had gone to Punjab for labour and on return from there himself surrendered to the Sub-Inspector who had come to his village on `Gasht'.
5. Dr. Taj Muhammad Khan Afridi, on 30-10-1980 at 7.20 a.m. Conducted autopsy on the dead body of Muhammad Salim deceased and found the following external injuries :-
(1) One fire-arm wound of entrance on the outer side of right eye wall measuring 1--x 1--'.
(2) One exit wound on the left skull blowing off the eye and bones.
(3) One fire-arm entrance -- X -- at the base of the nose (right side).
(4) One exit wound on the back of skull measuring -- x--.
(5) One grazed wound on the right upper arm 1--' x 1-- muscles deep
(6) One fire-arm entrance wound on posterior surface of the right buttock size 1--X 1'.
On dissection the stomach was found full of tea and liquid. Small and large intestines were found injured. Brain tissues were grossly damaged. Both temporal bones were fractured. Card-boards, five pellets of small size weighing 30 grains were recovered from the abdomen from injury No. 16.
Shirt, shalwar and one chaddar, having tear marks, of the deceased, card. Boards and pellets sealed in a bottle were handed over to the Police constable. Chaddar was also having charring marks. Death was opined to be the result of firearm injury which had caused damage to the brain tissues. Probable time between injury and death was found to be a minute and that between death and post-mortem within 18 hours. On cross-examination the doctor stated that all the four entrance wounds were the result of four independent shots. Nazar Gul Constable (P. W. 5) escorted the dead body of the deceased from the spot to the mortuary at Shabqadar and delivered it intact to the doctor for post-mortem examination. After the post-mortem examination the doctor handed over to him one shirt (P. 1), shalwar (P. 2) all blood-stained belonging to the deceased and a small bottle containing four pieces of card-boards ;P. 5) and five pellets (P. 6) which he later produced before the Investigating Officer. When cross-examined by the defence counsel the witness stand that he had accompanied the Investigating Officer to the spot after the registration of the case and it was Khuftan time when they left for the spot.
6. Abdul Karim Khan (P. W. 6) joined the investigation and in his presence the Investigating Officer secured from the spot blood-stained earth and some grass (Exh. P. 7) and sealed it into a parcel vide memo. (Exh. P. C/1). Aziz Rasool the first informant produced before the Investi--gating Officer a copy of 'licence No. 8-6-9/77 (Exh. P. 8) in the name of the deceased of P. S. Batagram renewed up til 31-12-1980 in respect of shotgun No. 3092 which the Investigating Officer took into possession, vide memo. (Exh. P. C/2). Both the memos correctly bear his signatures as marginal witness. On' cross-examination the witness deposed that the deceased remained his tenant for about fifteen years. Waris Khan the father of the deceased was murdered by one Atlas Khan, sixteen years prior to the present occurrence. Later Atlas Khan was murdered for which Salim deceased was charged who was subsequently, acquitted. Two major nephews and two brothers of the said Atlas resided in the village. One Ghulam husband of aunt of Aziz Rasool the first informant was murdered and Salim deceased was charged but later acquitted by the Court of Sessions. The local bodies Election was contested by Jan Muhammad and Zarif Khan and the latter was declared successful. Both the contestants were not related to the deceased. When he and the Investigating Officer reached the spot it was Khuftan Wela and it was raining. Towards the cast and west of the path sugar-cane crop was standing. Yaghi Band Bala is at a distance of 2J furlongs from the place of occurrence.
7. Jamshed (P. W. 9) the sole eye-witness of the occurrence deposed that Salim Khan deceased was his brother-in-law. Abdul Wahab absconding accused is the brother-in-law of Jehanzeb accused while Muhammad Hussain absconder is the first cousin of Jehanzeb accused. On the day of occurrence at morning time he and Salim Khan deceased had gone to village Yagbi Band for attending the funeral of one Jan Khan Baba. After the burial they started back to their village Yaghi Band Bala. When they reached some--where in between Yaghi Band Payan and Yaghi Band Bala, Jehanzeb accused and the two absconders appeared from the opposite direction. The accused as well as both the absconders duly armed fired at the deceased with which the latter was hit and fell to the ground. After the firing Abdul Wahab absconder approached the deceased and took away the shotgun and the bandolier which the deceased was carrying. All of them then bolted away from the spot. He did not know about the motive for the crime. On cross-examination he stated that the sister of the father of the deceased is his mother. Further on he stated that when the accused and the absconders were crossing them on the path they opened tire and a shot each was fired by the three accused. He and Aziz Rasool P. W. Both went to the P. S. Where Aziz Rasool lodged the report. Abdul Mutlib Khan S. H. O. (P. W. 10) on receipt of Murasila (Exh. P. A/1) registered the case vide Exh. P. -A,. The spot is about two miles away from the Police Station. Ghulam Mustafa A. S. I. (P. W. 11) recorded the F. I. R. And investigated the case and the part played by him in investigation of the case has already been referred to herein--before which need not be recapulated.
8. Assailing the judgment of the trial Judge the learned counsel for the defence raised a number of points which are tabulated below and shall be considered in this judgment seriatim
(i) The prosecution is not certain about the time of occurrence which according. To the F. I. R. Took place at digar Wela while according to Jamshed (P. W. 9) it was early Digar time when they returned to the spot along with the Investigating Officer after lodging the F. I. R. In the Police Station.
From this it can be worked, out that the occurrence took place at about noon time.
(ii) The prosecution is not unanimous about the place where the first information report was lodged. According to the F.
1. R. The same was lodged to A. S. I. Ghulam Mustafa at Yaghi Band Bala where he was present on patrol duty. This fact is confirmed by Ghulam Mustafa A. S. I. In his statement in Court while on the other hand the version given by Jamshed (P. W. 9) in Court was that he accompa--nied Aziz Rasul the first informant to the Police Station where Aziz Rasul lodged the report in the Police Station.
(iii) The prosecution has miserably failed to establish any motive for the crime.
(iv) The medical evidence belies the solitary eye-witness, in that, four independent injuries as a result of four shots were found on the body of the deceased and not three as alleged by Jamshed (P. W._ 9),
(v) The testimony of Jamshed (P. W. 9) the solitary eye-witness closely related to the deceased bristles with discrepancies and infirmities which renders it highly unreliable for basing conviction on a capital charge and the same stands uncorroborated by any other source.
(vi) The facts and circumstances of the case strongly suggest that it was an unwitnessed occurrence and the accused-appellant was charged on suspicions.
(vii) Abscondence even if proved can at the most corroborate other independent reliable evidence which is miserably lacking.
9. As observed earlier the maker of the first information report Aziz Rasul a stepbrother of Salim deceased, involved in a murder case became an -absconder. All efforts to procure his attendance in Court to give evidence failed with the result that the case was concluded without examining him.
The learned Additional Advocate-Generalrepresenting the State and Mr. M. Zahurul Haq Bar-at- Law, appearing for the defence differed about the evidentiary value of the first information report.
The stand of the learned Additional Advocate-General was that it is admissible under section 35 of the Evidence Act for being an entry of official register recorded b~ a public servant in discharge of his official duty and as such is a public document within the meaning of section 74 of the Evidence Act. Reliance in this regard was placed on a case reported as Abheraj Singh v. Gaya Singh and another (AIR 1932 Oudh 137), wherein the learned Judge was pleased to hold :- "A report by the party to the suit, made at a police station is an entry in a public record made by a public servant in the discharge of his official duties and as such is a relevant fact under section 35.
Such an entry is admissible in evidence under this section, even if the person who made it is alive and not called as a witness."
On the other hand the stand of the defence was that the first infor--mation report cannot be treated as a substantive piece of evidence, i.e. As evidence of the facts mentioned therein. At the most the report would only prove that a certain person made the statement contained in it.. In this regard reference was made to a judgment of Supreme Court of Pakistan reported as Ghaus Muhammad alias Ghausa and another v. The State (1979 SCMR 579), wherein at page 584 the observations are :- "The maker of the F. I. R. Had died. It cannot be used as corrobo--ration of the testimony of another person, namely Nur Muhammad P. W. At best the prosecution can use it for showing that the name of Nur Muhammad is mentioned in the F. I. R. But that by itself would not advance the prosecution case."
In another judgment from the Indian jurisdiction reported as Umro Singh v. State of M. P. (AIR 1961 Madh. Pra. 45), it has been observed :- "The first information report is not by itself a substantive piece of evidence and the statement made therein cannot be considered as evidence unless it falls within the purview of section 32, Evidence Act. Where the informant who had been belaboured by the accused died a natural death (and not because of the injuries caused by the petitioners) before he could be examined as a witness, section 32 is in applicable.
But the first information report made soon after the alleged incident can be looked into to remove a doubt as to the name of an eye-witness given in the list of witnesses filed by the prosecution, which had been mentioned in the first information report by the informant. The report is admissible under section 8 of the Evidence Act."
M. Monir in his book "Principles and Digest of the Law of Evidence" fourth Edition at page 539 referring to the view of the Oudh Court has made the following observation :- "The Oudh Court has held a first information report to be admissible in evidence under section 35, even if the informant be alive and not called as a witness. This view obviously runs counter to the generally accepted view that a first information report is admissible only for the purpose of corroborating or contradicting the testimony of the informant."
Even if it be accepted that the first information report is admissible in evidence we are of the view that it has little 'probative value. It is not a substantive piece of evidence and the facts mentioned therein cannot be taken A into account against the accused facing the trial without examining the informant. However, ancillary matters can be taken into consideration on of which for the present is that the name of Jamshed examined as P. W. 9 at the trial does figure therein.
10. Adverting to the contentions of the learned counsel for the appellant we find the same to be not without force and substance. In the F. I. R. The time of occurrence is shown to be Digar Qaza Wela which is contradicted e by Jamshed (P. W. 9) who deposed at the trial that it was yet early digar time when he along with Aziz Rasul returned to the spot after lodging the report in the Police Station. The spot. Is shown to be two miles away from the Police Station. They went to the Police Station, lodged the report there and returned to the spot along with the Investigating Officer thereby covering a. Distance of four miles on foot which must have taken them more than an hour and a half.Taking these facts into consideration the crime appears to have been perpetrated at the latest by "peshin" time and not Digar Qaza Wela. Nazar Gul constable, P. W. 5 who had accompanied the Investigating Officer from the Police Station to the spot had his own story to tell.
According to him it was Khuftan time when they left for the spot.
11. Jamshed (P. W. 9) was emphatic about the fact that he accompanied the first informant from the spot to the Police Station and it was in the Police Station that the report was lodged. The Police Officer Ghulam Mustafa, A. S. I. (P. W. 11) who had recorded the report has given a lie to Jamshed P.
W. By deposing that the report was lodged before him at Yaghi Band Bala when he was on patrol duty and he recorded it in the form o Murasila (Exh. P. A/1).
12. No motive has been established by the prosecution for the murder of the deceased. On the other hand there is material on the record which indicated that the deceased had blood-feud with other persons. Abdul Karim (P. W. 6) Lumbardar of village Yaghi Band Bala has furnished informa-- tion about it. According to the witness Waris Khan the father of the deceased was murdered by one Atlas Khan. Subsequently Atlas Khan was murdered for which Salim Khan deceased was charged but later acquitted. Grown-up two nephews and two brothers of said Atlas Khan, during the days of occurrence, were residing in the village.
13. The doctor who had performed the autopsy on the dead body of the' deceased deposed that the injuries found by him on the dead body were positively the result of four shots. On the other hand Jamshed (P. W. 9) stated that all the three accused fired one shot each making a total of three shots. Here again the ocular account and the medical evidence are in direct conflict. As has already been noted Jamshed (P. W. 9) the solitary eye-witness a brothel-in-law of the deceased stands belied with regard to the time of occurrence given by him and the place of filing the F. I. R.
Medical evidence two contradicts his version about the number of shots fired at the deceased. His version in Court that they saw the accused first at a distance of 30 paces approaching them on the road from. The opposite direction is also not in conformity with the evidence of the Investigating Officer as well as the site plan which indicate that the accused-appellant and the absconders emerged from the sugarcane field located towards the east wherefrom the deceased was then fired at.
14. The evidence of the solitary eye-witness a close relation of the deceased what to say of being corroborated by any other reliable evidence rather stands contradicted in material particulars by the medical evidence as well as other circumstances of the case referred to herebefore which strongly suggest that he was not present when the crime was being enacted.
15. Abscondence by itself and that also for a period of two and a half! Months for which plausible explanation has been furnished by the accused-1, that he was away from the village and on learning of the charge himself surrendered before the Police, has never been considered sufficient to bring home guilt to an accused.
16. In the result, the prosecution has failed to prove beyond reasonable, doubt the appellant's guilt.
We, therefore, allow the appeal, set aside the: conviction and sentence and acquit him of the charge. The death sentence is not confirmed and the murder reference is answered in the negative. He shall be released forthwith if not required on any other charge.