QAISER RASHID KHAN, J.---This appeal has been filed by the appellant-convict Shaukat, against the judgment dated 28.7.2016, rendered by the learned Trial Court/ Additional Sessions Judge-I, Swabi, whereby the appellant has been handed down penalty of death under section 302(b), P.P.C. as Ta'zir, for committing the "Qatli-Amd" of Zameer deceased, and also to pay Rs,2,00,000/- to L.Rs, of the deceased, as compensation in terms of S.544-A, Cr.P.C. in case FIR No,1353, dated 3.10.2011, registered under Sections 302/324/34, P.P.C. of Police Station Kalu Khan, District Swabi. The learned Trial Court has also convicted the appellant under section 324, P.P.C. and sentenced him to undergo 3 years R.I. with a fine of Rs,25000/- or in default to suffer six months S.I. for attempting at the life of complainant, Jamshed Similarly, he was also convicted under section 324, P.P.C. for attempting at the life of PW Munsif Ali and sentenced him to undergo 3 years R.I with a fine of Rs, 25,000/- or' in default thereof to suffer six months S.I and the sentences under section 324, P.P.C. to run concurrently. Benefit of section 382-B, Cr.P.C. has also been extended to the convict. The learned trial court has sent Murder Reference No, 12-P/2016, for confirmation of sentence of death of the appellant-convict in terms of section 374, Cr.P.C.
2. Since, both the matters are the outcome of one and the same judgment of the learned Trial Court, therefore, this common judgment shall govern both.
3. The prosecution case as divulged from First Information Report is that on 3.10.2011 at 13.00 hours, Jamshed Ali complainant (PW.9), with the help of his co-villagers brought the dead body of Zameer Khan alias Mekaan, his deceased brother, to the Police Station where he reported the matter to Mushtaq Khan, Inspector/SHO (PW.2), Police Station Kalu Khan that on the fateful day, he along with his brother Munsif and his deceased brother Zameer Khan were present at the spot with a tractor-trolley for carrying sand when at 1300 hours, their co-villagers, namely, Parvez, Taj Malook, Minhaj and Shaukat sons of Farid Khan came there duly armed and started firing at the them, as a result whereof, his deceased brother Zameer Khan got hit and died on the spot while he and his brother Munsif Ali luckily remained unhurt. An oral altercation inter-se the complainant party and accused, earlier taken place prior to the incident, was alleged to be the motive behind the incident.
4. On receipt of supplementary challan by the learned Trial Court, the accused/appellant was formally charge sheeted to which he pleaded not guilty and claimed trial. To prove its case, the prosecution examined as many as thirteen witnesses. Gist of the prosecution evidence is discussed briefly as under:--
5. Dr. Shad Ali (PW.1), conducted autopsy on the dead body of the deceased and found the following injuries on his person:-- i) Firearm entry wound 1/4 x 1/4 inches in size on interior aspect upper part of left side chest. ii) Firearm exit wound about 2 x 2 inches in size on lateral aspect of right side chest upper part. iii) Firearm entry wound about 1/4 x 1/4 inches in size on medial aspect of right arm upper chest. iv) Firearm exit wound about lx1 inches in size on lateral aspect upper part of right aim. v) Firearm entry wound about 1/4 x 1/4 inches in size on lateral aspect upper part of left forearm. vi) Firearm exit wound about 1 x 2 inches in size on medial aspect upper part of left forearm.
Thorax: Walls, ribs, cartilages, pleura, right and left lungs and blood vessels were found injured.
Opinion: According to opinion of the medical Officer, the deceased died due to injuries to right and left lungs and blood vessels due to firearm.
6. Mushtaq Khan Inspector/SHO" (PW.2), recorded the report of the complainant Jamshed Ali (PW.9) in the shape of FIR Ex.PA, prepared injury sheet and inquest report Exh.PW.1/1 and Exh.PW.1/2 of the deceased, referred the dead body of the deceased to the mortuary for postmortem examination and also submitted complete challan for proceeding under section 512, Cr.P.C.
7. Ali Said (PW.3) has identified the dead body of deceased in the Police Station as well as in the Hospital being his relative.
8. Ali Gohar DFC (PW.4) was entrusted with the warrant of arrest (Ex.PW.4/1). He searched the accused at the given address and in the surrounding area but he was not available, therefore, he returned the warrant with his report thereon (Ex.PW.4/3). Thereafter, proclamation notices were issued against the appellant Ex:PW4/2 which he executed in accordance with law and returned the third copy thereof as Ex:PW-4/4.
9. Niaz Muhammad ASI (PW.5) raided the house of appellant and arrested him along with a Kalashnikov on 16.6.2014, vide Card of arrest Ex.PW.5/1. On 12.1.2016, he was re-examined wherein he stated that after arrest of the accused, he drafted murasila EX;PW-5/2 and also prepared the sketch of the place of arrest of the accused. In his cross-examination, he averred to have noted the number and other particulars of the Kalashnikov allegedly recovered from the appellant and to this effect he drafted a report/Murasila (Ex.PW.5/2) for registration of a separate case under section 15 Khyber Pakhtunkhwa Arms Act, 2013 and sent the same to P.S. Permoli for doing the needful.
10.Haroon Khan S.I. (PW.6), submitted supplementary challan against the appellant after his arrest.
11.Muhammad Fayaz S.I. (PW.7) stated that after arrest of appellant, he interrogated the accused and during investigation, he disclosed that the Kalashnikov recovered from him by PW.5 Niaz Muhammad ASI, was a crime weapon. In his cross-examination, he stated that the Kalashnikov in question was not in a sealed form and he later on sealed it into a parcel vide memo Ex:PW-7/1. The accused also pointed the spot to him vide pointation memo Ex:PW-7/2. Vide application, Ex:PW-7/3, he produced the accused before the JMIC for recording his confessional statement, however, he refused and accordingly sent to the judicial lock up. This witness has placed on record the application (Ex.PW.7/4) for sending the Kalashnikov to FSL and received its report Ex.PK. He recorded the statements of the PWs and after completion of investigation, submitted the case file to the SHO for submission of challan.
12.Umar Zaman (PW.8) stated that when he visited Police Station Permoli, the 1.0. asked a police official to bring the Kalashnikov with which the accused had committed the present crime. The Kalashnikov along with 10 live rounds was produced and in his presence sealed into a parcel vide recovery Memo Ex.PW.7/1.
13. Jamshed Ali (PW.9) is the complainant who has narrated the same episode as set forth by him in his initial report Ex:PA.
14. Munsif Ali (PW.10) is the eye-witness mentioned in the FIR. He stated that he along with his brothers complainant Jamshid Ali and deceased Zameer Khan had gone for taking sand from a 'Khawar' through a tractor trolley. It was about 01:00 P.M. when the accused facing trial along with his brothers, co-accused namely Pervez, Taj Malook and Minhaj, duly armed, came there and started firing at them with which Zameer Khan was hit and expired on the spot while he and complainant Jamshid Ali escaped unhurt. He and the complainant pointed the spot to the I.O. He is also marginal witness to the recovery memo Ex:PW-10/1, vide which the I.O. recovered one empty of 30 bore, P.1, from the spot and sealed into a parcel. Similarly, he is also marginal witness to the recovery memo Ex:PW-10/2 vide which the I.O. recovered blood stained sand, P.2, from the place of the deceased and sealed into parcel. Likewise, he is also marginal witness to the recovery memo Ex:PW-10/5 vide which the I.O. secured the blood stained garments of the deceased comprising a Qamees , P.3, shalwar P.4 and a banyan, P.5, and sealed into parcel.
15.Said Jamil Khan Inspector CTD (PW.11) is the Investigation Officer in the case. He deposed that after registration of case FIR Ex. PA, the investigation was entrusted to him. He rushed to the spot and prepared the site plan Exh.PB at the instance of complainant and eye-witnesses. During spot inspection, he secured blood-stained earth and a small stone from the place of the deceased, vide recovery memo Ex.PW.10/2 and also recovered an empty of 7.62 bore Ex.P-1 along with Tractor Trolley bearing No,480, vide Recovery Memo Ex.PW.10/1 in presence of the witnesses. He took into possession the last worn bloodstained garments of the deceased vide recovery memo Exh.PW.10/3, sent the bloodstained articles to the FSL vide his application Ex.PW.11/1, report whereof is Ex.PK.
16.Shah Nawaz Khan ASI (PW.12) has recorded the subsequent FIR No,160 of P.S. Permoli qua recovery of Kalashnikov, alleged crime weapon, from the possession of the appellant.
17.Naveed Alam ASI (PW.13) was the member of the raiding party which arrested the appellant and from whose possession the Kalashnikov in question was recovered and to this effect he stood marginal witness to the recovery Memo Ex.PW1/1.
18.After closure of the prosecution evidence, statement of the appellant was recorded under section 342, Cr.P.C. wherein he denied the prosecution allegations and professed his innocence.
However, he neither wished to be examined on oath under section 340(2), Cr.P.C. nor to produce any evidence in his defence. On conclusion of trial, the learned Trial Court, after hearing both the sides, convicted and sentenced him as mentioned above.
19.We have heard the respective arguments advanced from either side and perused the record carefully.
20. As the record unfolds, it was the complainant Jamshed Ali who brought the dead body of his brother Zamir Khan in a pick-up to the Police Station on 3A0.2011 at 1500 hours and reported as to how he along with his brother PW.10, Munsif Ali and deceased Zameer Khan were present along with the tractor trolley for collecting the sand at the spot when at 1300 hours, Parvez, Taj Malook, Minhaj and Shaukat (convict-appellant) arrived duly armed with firearms and started firing at them and while the complainant along with Munsif Ali escaped unhurt, Zameer Khan got hit and died on the spot. Motive was stated to be previous altercation between the complainant party and the accused party over the taking away of sand. As per the postmortem report, the deceased received 3 firearm entry wounds with corresponding exit wounds of the same dimensions and probable time between injuries and death was stated to be within 30 minutes. As against the distance of 11/12 K.M. between the Police Station and the spot (cross-examination of PW.2 Mushtaq Khan then posted as SHO P.S. Kalu Khan referred), the report was made after two hours of the occurrence. The complainant Jamshed Ali turned up before the learned trial court as PW.9 and reiterated the contents of the FIR Ex.PA and moreover, that he along with Munsif Ali pointed the spot to the I.O. for the purpose of preparation of the site plan. During cross-examination, he stated to be studying in M.Sc. previous in Government Degree College Gohati during the days of occurrence and that on the following day of the occurrence, he had to appear in the last paper of the examination. He made the following replies to certain questions:-- ----"It is incorrect to suggest that PW Munsif Ali used to run a general store during the days of occurrence." ----" The accused reached the spot after 20 minutes of our arrival on the spot" ----"We were having spades for the purpose of loading the sand in the tractor trolley" ----"I do not remember as to why we did not shift the dead body to the PS in the tractor trolley. The witness explained that the people brought a vehicle to the spot in which the dead body was shifted. The above mentioned people came to the spot after about 20 minutes of the occurrence with the vehicle i,e, pick-up". ----"We consumed one hour at the spot after the occurrence and then shifted the dead body to the P.S." ----"The tractor trolley mentioned in my report was previously belonging to one Nawab Ali who used to drive it himself when it was his ownership. The said tractor trolley was purchased by the deceased and one Sher Wali alias Sherul as well. It is correct that even after the purchase of the tractor trolley the said Nawab Ali used to drive the same." ----" All the accused might have fired 20 shots at me and 20 shots at Munsif from a distance of 40/45 paces." ----" The spot may be at a distance of one kilometer from our house"
PW.10 Munsif Ali also made same statement as the complainant about the occurrence. During the course of cross-examination, he made the following replies to certain questions: ----"During the days of occurrence, I had a general store in my village run by me. Dunag the days of occurrence I was under the age of majority. We had taken the spade along with us to the spot for loading the tractor trolley of the sand however, I had not shown the same to the 1.0." ----" The spades were still available in the tractor trolley when it was taken into possession by the police." ----" The exam. of my brother Jamshid Ali was going on in the days of occurrence. He used to make preparation for his examination in the house.
"The dead body remained on the spot for about 15/20 minutes and then lifted by one Gul Zamin on his shoulders and taken to the road side, however, he did not accompany us to the PS." ----"I cannot give the number of shots fired at me or the complainant or the deceased individual.
In all 40/60 shots might have been fired by the accused on US.
At this point, it would be worthwhile to have a glance over the site plan prepared at the instance of the complainant and the PW.10, Munsif Ali. Point No,1 is the spot where the deceased Zameer Khan was hit and died wherefrom blood stained sandstone was recovered, point No,2 is where the complainant Jamshed Ali has shown his presence, point No,3 is spot where PW Munsif Ali was present, point No,4 is where the appellant Shaukat having fired at the complainant party with his Kalashnikov with which Zameer Khan was hit and died on the spot, point No,5 is the place where accused Taj Malook fired at the complainant party with a Kalashnikov, similarly point No,6 is the place where accused Parvez was shown firing at the complainant party and point No,7 is where the accused Minhaj was shown firing at the complainant party with his Kalashnikov. Point No,A is the place wherefrom one empty of 7.62 bore was retrieved and lastly point No,B is the place where the tractor trolley was present. The inter se distance between points Nos,1 and 2 is 10 paces, between points Nos,1 and 3 is 46 paces, between points Nos,1 and 4 is 18 paces, between points Nos,1 and 5 is 24 paces, between point Nos,1 and 6 is 25 paces, point Nos, 1 and 7 is 27 paces, between the accused and the point. No,B is 55 paces, between points Nos, 4, 5, 6, 7 and points No,2 is 29 paces.
21. Now coming to the above said replies of the two PWs which have so much to tell despite the fact that these PWs were earlier examined as well during the trial of the three co-accused namely Parvez, Taj Malook and Minhaj, the real brothers of the convict-appellant, Shaukat. Despite a student of M.Sc. previous at Degree Collage Gohati and his examination underway with the last paper on the following day of the occurrence, the alleged presence of PW.9 on the spot and that too, for the purpose of collecting sand for their under construction house, certainly raise eyebrows when the said job could be performed by his two brothers i,e, the deceased Zameer Khan and PW.1, Munsif Ali. He even rubbished the suggestion that his brother Munsif Ali used to run a general store during the days of occurrence. However, Munsif Ali on his turn as PW.10 to a question admitted that during the days of occurrence, he had a general store in his village run by him. The occurrence allegedly took place at 1300 hours and as per PW.9, (his cross-examination referred) the people came to the spot after 20 minutes. PW.10 Munsif Ali on his turn in reply to a question stated that the dead body remained on the spot for 15/20 minutes and then lifted by one Gul Zamin on his shoulder and taken to the road side. If at all Zameer Khan succumbed to his injuries on the spot at 1300 hours and where the pock-up was made available within, 15/20 minutes, still the complainant reported the matter to the Police Station at 1500 hours when distance between the occurrence and the police station is 11/12 K.M. The delay goes unexplained at the prosecution's end.
22. Given the fact that PW.9 was an M.Sc. student and must have been preparing for the final paper on the following day of the occurrence and where the PW.10 during the days of occurrence had a general store in his village run by him, then the attending circumstances clearly suggest that both the PWs were not present on the spot but their attendance was procured after the occurrence and that too, when the distance between the spot and their house was about one K.M. (cross- examination of PW.9 referred) and that is why an inordinate and unexplained delay occurred in making the report at 1500 hours which keeping in view the statements of the PW.9 and PW.10 could be safely made within one hour, in view of the timely arrival of the pick-up on the spot within 20 minutes of the occurrence and the distance between the spot and the Police Station being 11/12 K.M.
23. The site plan though shows the presence of the complainant and the PW.10 at Point No,2 and Point No,3 respectively but the story of the occurrence as it comes out from their mouths belies their presence on the spot. Firstly, if at all the purpose was to collect the sand from the spot, then what were the complainant , PW Munsif Ali and deceased Zameer Khan doing at their respective positions, standing at quite some distance from each other with the tractor trolley still parked at another place. Secondly, the motive being the altercation between the complainant party and the accused over the taking away of the sand was directed against the three brothers i,e, the deceased Zameer Khan, complainant Jamshed Ali and PW.10, Munsif Ali but then though all the four accused allegedly fired 40/60 shots (cross-examination of PWs.9 and 10 referred) at them, but strangely enough, only Zameer Khan received 3 firearm injuries of the same dimensions and the complainant and PW. Munsif Ali remained unscathed. Such factor also casts' serious doubt on their presence on the spot. In the earlier round, three brothers of the present appellant, namely, Parvez, Taj Malook and Minhaj after their arrest were tried and acquitted by the learned trial court on 26.6.2012 and appeal thereagainst preferred by the complainant was dismissed by this court vide Cr.A'. No,336-P of 2012 decided on 1.6.2013. The same was not in turn challenged before the august Apex Court and has attained finality. The appellant in this case was arrested on 16.6.2014 allegedly with a Kalashnikov in respect of which an FIR No,160 dated 16.6.2014, under Section 13 A.O. at P.S. Permoli, Swabi was registered, then both the empty of 7.62 bore retrieved from the spot in the present case and the Kalashnikov were sent to the FSL for chemical examination, the report whereof is to the effect that the empty was fired from the Kalashnikov recovered from the appellant. Regarding the recovery of Kalashnikov from the appellant, he faced trial and was then convicted and sentenced to three years R.I. with fine of Rs,20000/-, vide judgment of the learned trial court dated 28.7.2016 and the appeal preferred by the appellant has been allowed by this court vide separate judgment of the even date.
24. As far as the present case is concerned, the same set of evidence was discarded and disbelieved during the trial of the co-accused vide judgment dated 26.6.2012 and upheld by this court in appeal as mentioned above. The factor which primarily prevailed with the learned trial court while convicting the appellant is his abscondence, recovery of Kalashnikov from him and the positive FSL report in respect of crime empty and the Kalashnikov. So far as the acquittal of co- accused is concerned, admittedly they were assigned similar role of firing by the complainant and PW.10, Munsif Ali with which their brother Zameer Khan was hit and died on the spot. Where the evidence of the PWs was discarded and disbelieved during the trial of the co-accused, then the same set of evidence cannot be believed in the case of the appellant when omnibus role has been assigned to all the four accused in the FIR. In this respect, reliance can advantageously be placed on 2008 SCM R 6 titled Akhtar Ali and others v. The State 2016 SCM R 1763 titled Shahbaz v. The State and 2017 SCM R 344 titled Sardar Bibi and another v. Munir Ahmad and others.
25. So far as the abscondence of the appellant is concerned, it is by now settled law that where other evidence is not sufficient to record conviction, then mere abscondence of an accused cannot be taken into consideration for such purpose. Reliance is advantageously placed on PLD 1980 Supreme Court - 201 titled Farman Ali and 3 others v. The State 1986 SCM R 823 titled Taj Muhammad v. Pesham Khan and others and Mitho Pittafi v. The State (2009 SCM R 299).
26.For what has been discussed above, we have come to an irresistible conclusion that the prosecution has failed to prove its case against the convict-appellant beyond reasonable doubt.
Accordingly, this appeal is allowed, the conviction and sentence of the appellant are set aside and he is acquitted of the charge by extending benefit of doubt to him. He shall be released from jail forthwith, if not required to be detained in any other case.
27.The Murder Reference No,12 2016 is answered in the negative.
28.These are the reasons of our short order of even date.