MOHAMMAD IBRAHIM KHAN, J.---By our commutual findings, Cr. A. No.465-P/2013 (Pir Badshah and another v. The State and another), Cr. R. No.114-P/2013 (Adnan Khan v. Pir Badshah) and Cr. R.
No.142-P/2013 (State v. Pir Badshah etc.) through this singled out judgment are disposed of. The Criminal Appeal as well as the Revision petitions are arising out from the judgment dated 27.08.2013 in Sessions Case No. 229 of 2012, passed by the learned Additional Sessions Judge-V, Kohat.
2. The accused/appellants who are brothers inter se were jointly indicted under the allegations, that they on 09.04.2012 at 1800 hours at Zawaki Mosque Shadi Khel Kohat which fall within the criminal jurisdiction of Police Station Bilitung, Kohat, in the company of their other brothers who are since fugitive from justice being duly armed with their respective firearms committed Qatl-i-amd of Ghaffar Khan by firing at him and thereby under First Head of the charge, it is said to have committed the offence under section 302/34, P.P.C.. At the same impasse they are also charged that each of them along with their co-absconding accused brother attempted on the life of Adnan Khan, thereby also stood to charge under section 324/34, P.P.C.
3. In the case in hand the accused/appellants did not plead each guilt and claimed the trial.
4. In order to bring home the charges, the prosecution examined PW-1 Ali Ahmad in whose statement the injury sheet EX.PW1/1, another injury sheet EX.PW1/2 and the inquest report EX.PW1/3 were duly exhibited. PW-2 is Dr. Fazal Rehman DHQ KDA, who has examined the injured Adnan and found the, following; 1.Firearm injury upper arm near shoulder interiorly, size 1/8 inch.
2. Firearm entry wound right interior lower neck size 1/8 inch x 1/8 inch.
3. Grazing wound on right lower chest and LA chest, are only skin deep treatment given.
On the same day this witness conducted the autopsy of the deceased Ghaffar and found the following; External Appearance: I. Firearm injury entry wound left scapular region size 1/2 inch x 1/2 inch.
2. Firearm injury exit wound left supraclavical region size 1-1/2 x 1-1/2 inch.
3. Grazing wound on the neck of left chest only skin deep.
PW-3 is Asghar Mehmood IHC who is marginal witness to the recovery memo EX.PW3/1 and many other articles were taken by this memo. He has also recorded statements of the witnesses under section 161, Cr.P.C. PW-4 is Zulfat Ali Shah, who has prepared the site plan EX.PB. He took in possession of 16 empties of 7.62 bore along with five empties of 333 bore in scattered condition, prepared recovery memo EX.PW4/1, made certain applications for sending various articles to the FSL and received the report EX.PZ. He obtained warrants under section 204, Cr.P.C. and issued proclamation notices under section 87, Cr.P.C., earlier submitted challan under section 512, Cr.P.C.
PW-5 is Khan Ullah SHO who submitted challan against the accused/appellants and has also issued card of arrest EX.PW5/2. PW-6 is Niamat Ullah ASI who has reduced the contents of the murasila in the shape of FIR EX.PA/1. Then comes PW-7 Muhammad Younas who is identifier of the dead body of Ghaffar. PW-8 is Adnan who is an injured eye-witness of the occurrence, narrated his own version. PW-9 is Anwar Shah ASI, who is marginal witness to recovery memo EX.PW4/1 and in his presence the SHO has taken into possession the empties. PW-10 is Mubbashir Hassan. He is marginal witness to the recovery memo EX.PW4/2, entrusted warrants against the accused/appellants which are exhibited respectively from EX.PW10/1 to EX.PW10/16. At the end on conclusion of prosecution evidence each accused was examined under section 342, Cr.P.C. Both negated of their involvement in the crime and posed innocence.
5. Having heard the arguments of the learned counsel for the accused/appellants/learned counsel for the complainant and learned AAG for the State, record with their assistance gone through.
6. Learned counsel for the accused/appellants mainly relied on 2016 PCr.LJ 111 (Liban Shah v. The State), 2011 SCMR 527 (Nazir Ahmad v. Muhammad Iqbal.), 2011 SCMR 323 (Amin Ali v. The State), PLD 2004 Peshawar 1 (The State v. Muhammad Raja), 2003 SCMR 1466 (Mst. Shamim v. The State), 2007 PCr.LJ 1371 (Mirza Khan v. The State), 2011 SCMR 45 (Mushtaq Hussain v. The State), 2016 PCr.LJ 1378 (Naeem Khan v. The State), 2016 MLD 757 (Muhammad Noor v. Riaz Shah). In the light of the dictums contained in, he prayed for the acquittal of accused/appellants. The other part representing the complainant and the State through the learned AAG accentuated for enhancement of the sentence from life to death as according to them these accused/appellants and their fugitive brothers by their barbarous act have taken away the life of an innocent elder Ghaffar Khan by committing his Qatl-i-amd who have also not spared his son Adnan causing him injuries at the relevant time of occurrence.
For conversion of the penalty from life to death the following dictums reported in 2001 SCMR 177 (Riaz Hussain v. The State), 2003 SCMR 862 (Muhammad Aslam v. The State), 1996 SCMR 1029 (Sadaf Safdar Hayat v. The State) were referred to.
7. This occurrence has happened at 1800 hours which was reported at 2110 hours. The preeminent witness is PW-8 Adnan injured witness of the present occurrence. The testimony of this related witnz:ss who being son of the deceased Ghaffar will of course prove to be a decisive factor for the wheel of fortune for either ultimate conviction which has been awarded or there is need that the life imprisonment may be enhanced to death penalty. His statement needs corroboration from all angles coming from unimpeachable sources. Yes, the c,onviction and by award of sentence only a solitary witness is sufficient who must be trustworthy and his statement shall be confidence inspiring. The law always favour the quality of the evidence of the prosecution and not the quantity when the matter is of criminal dispensation of justice.
8. The Courts are required that whenever the factum of sentence if any or altogether when an accused to be acquitted where there is a witness who has also sustained injuries, he being the eye witness is not alone sufficient that he be declared as a truthful witness. Coming to his statement this witness has stated that previously the parties are having inimical background due to the charges for the murder of Naeem brother of the injured complainant against Pir Badshah and Sofi Ali Shah. In the statement of PW-7 Muhammad Younas, witness has admitted that the son of deceased Ghaffar Khan namely Naeem died due to illness but the accusations of murder were levelled against the accused facing trial. However, under an admission these accused have been acquitted in that case. Due to this enmity with revengeful designs, the witness has categorically admitted that they have been again charged for the murder of Ghaffar Khan and firing at him. This admission has come up; "It is correct that I charged the accused in the instant case on the basis of previous enmity."
9. It is of much importance and very miraculous that on doomful day mother of the accused/appellants died and her funeral ceremony was held in village Shadi Khel by the co- villagers. Very much admission from the cross-examination, the extract is reproduced; "It is correct that on the eventful day the mother of accused facing trial had died and funeral ceremony was held in village Shadi Khel by the Co-villagers."
In our society whether we are living in any part of the Province of Khyber Pakhtunkhwa, we have set very hard principles to pass our lives. In the village of Bilitung of the District Kohat, it is very onerous to believe that when someone mother has died, on the same very date her sons will satiate their thrust to pander in such like revengeful happenings.
10.In this case, this PW Adnan injured has also admitted that when they reached the place of occurrence, they faced the accused front to front and from the front position they were fired upon.
Both, the deceased father and injured son were in downward position while the accused facing trial were on upward position. By that time the distance between the accused/appellants and the sufferer parties was 08 or 09 feet above their position. There may slightly or hardly be a difference to form an opinion seeing the pictorial that the fire shots were showered from an upper pedestal.
However, suggesting that entry wound left scapular region on the back of the deceased, the medical evidence will disaffirm the ocular version as the entry wound is slightly from downward position while its exit is upperward.
11.We have given our anxious thoughts to the reasons contained in the impugned judgment whereby the accused/appellants were convicted and sentenced to life imprisonment, we feel like that the learned trial Court has not taken care of in view of the observations under the admissions of the injured complainant Adnan that these accused/ appellants have merely been charged on account of previous enmity when they have been acquitted. Because of the reason that it is rather unbelievable that the accused/appellants on the day when their mother was laid to rest have resorted to such act on their part.
12.We hereby allow the Cr. A. No.465-P/2013 titled Pir Badshah and Noor Badshah v. The State and Adnan Khan preferred by the accused/appellants for their acquittal on the charges of the murder of deceased Ghaffar as well as for causing injuries to the complainant Adnan. At the same time the Cr. R. No.114-P/2013 Adnan Khan v. Pir Badshah and Cr. R. No.142-P/2013 The State v. Pir Badshah for enhancement of the sentences of each accused/respondents stand dismissed.
Accused/appellants be released forthwith if not required in any other case.