FAIZ MUHAMMAD KHAN, J.-Gharib Gul son of Manda Khan, aged 35, and Maazullah son of Abdul Rehman, aged 33, residents of Khawaja Hawas Koroona, Shabqadar, stood trial in the Court of Additional Sessions Judge, Peshawar, on charges under section 302/307/34, P. P. C. For having committed, on 6th October, 1980 at 11.30 a.m. In the company of absconding accused Zahir Khan, in furtherance of their common intention, in Ada Matta Mughal Khel, Shabqadar the murder of Poordil, by firing at him, and an attempt at the life of Khanzada (P. W. 11). The learned trial Judge, finding both the accused Gharib Gul and Maazullah Khan guilty of the offences for which they were charged, con--victed and sentenced each one of them- (i)to imprisonment for life and a fine of Rs. 10,000 (Rs. Ten thousand), in default of payment of which each accused to suffer further two years' R. I. On a charge under section 302134, P. P. C. And (ii)to two years' R. I. And a fine of Rs. 2,000 (Rs. Two thousand), in default of payment of which each accused to suffer further six months' R. L, on a charge under section 307 /34; P. P. C.
Half of the amount of fine, on realisation, was directed to be paid, in equal shares, to Khanzada. (P.
W. 11) and the legal heirs of Poordil deceased.
2. Not satisfied with their conviction and sentence aforesaid, Gharib Gul and Maazullah accused have filed this appeal. Khanzada, on whose life an attempt was made and being also the father of the deceased, was also not satisfied with the sentence awarded by the learned trial Judge to the convicted accused. He has, therefore, filed this revision petition for the enhancement of the sentence aware to both the accused on both counts. We propose to dispose of the appeal and the revision petition by this single judgment.
3. The prosecution case, in- brief, was that on the day of occurrence at about 10.30 a.m. The accused-appellants alongwith Zahir Khan, absconding accused, came to the hotel of Pashmeen Khan (P. W. 10) and picked up a quarrel with him over the ownership of a tea-cup. They grappled with him but on the intervention of the people they were separat--ed. All the three accused, named above, then went back to their hotel. After some time the accused-appellants alongwith absconding accused again appeared on the scene, this time armed with 'Tomachas'. They opened fire with their, 'Tamachas', hitting Poordil fatally and injuring Khanzada (P. W. 11). The occurrence was witnessed by Khadi Khan (P. W. 9), the complainant in the case, Pashmeen (P. W. 10) and Khan Said (P. W. 12). Zahir Khan accused decamped from the spot but the accused-appellants were apprehended by the Police immediately after the occurrence in the vicinity of the scene of occurrence.
4. The report of the occurrence was made by Khadi Khan (P. W. 9) at 11.50 a.m. At Police Station, Shabqadar wherein, while stating that the occurrence took place at 11.30 a.m. He stated that he runs a 'Niswa r' (Snuff). Shop near the hotel of Zahir Khan, where he was present when Zahir Khan the absconding accused, Maazullah and Gharibullah, the accused-appellants, came there armed with ---Tamachas--- and opened fire at Poordil and Khanzada, who both got injured, the former fatally. Pashmeen (P. W. 10) and Khan Said (P. W. 12) were stated to have seen the occurrence.
Motive for the crime mentioned in the report was the quarrel between Pashmeen (P. W. 10) and the accused, some five minutes before the occurrence, over the ownership of a tea-cup.
5. Dr. Taj Muhammad, the then Incharge Civil Hospital, Shab--qadar, performed autopsy on the dead body of Poordil and found the following on the person External Examination- (1)One fire-arm wound of entrance on the postero lateral side of the left scapula, measuring --" x - -".
(2)One bullet was recovered from the right front of the chest threeinches below and two inches lateral to the nipple.
Internal Examination---- Chest walls, pleaurea, right and left lungs, superior vena cava (heart) injured. The stomach was healthy and had some fluid.
In the opinion of the doctor, death was caused due to fire-arm injury to the heart and internal bleedings. The bullet recovered from the dead body was handed over to Police. In the opinion of the doctor, probable time between the injury and death was one to two minutes and between death and post-mortem examination was two hours.
On the same day, this doctor also examined Khanzada (P. W. 11), who was in injured condition, and found the following injuries on his person :- (1)One fire-arm wound I" x I" on the left lateral side of the buttock.
(2)There was one exit wound on the front of the buttock of the left side measuring -- x -- of wound No. 1.
In the opinion of the doctor, since the wounds found on the body of Poordil deceased and Khanzada (P. W. 11) were of the same dimension the possibility could not be excluded that ether the wounds were caused by the same weapon or by different weapons of the same type and calibre.
6. Since Gharib Gul, one of the accused appellants, was also having injuries on the person, he was, on the same day at about 2.45 p.m. Examined by Dr. Shaukat Ali, who found the following injuries on his person :- (1)One lacerated wound measuring --" x --" in size. Skin deep on the left lateral eye-brew.
(2)One contused wound on the left fore-arm measuring 1" x 1" area, swollen.
7. At the trial the prosecution relied on the ocular testimony fur--nished by Khadi Khan (P. W. 9), Pashmeen Khan (P. W. 10), Khanzada (P. W. 11) and Khan Said (P. W. 12). The prosecution also relied on the motive for the offence as well as the medical evidence furnished at the trial. The learned trial Judge, relying on the said evidence, convicted the accused-appellants as aforesaid.
8. Khadi Khan (P. W. 9) was the first informant. In his brief report made to the Police he charged the accused appellants and the absconding accused for fatally firing at Poordil deceased and for effec--tively firing at Khanzada (P. W. 11). 1n the first report he did not mention the details of the first quarrel which had taken place between Pashmeen (P. W. 10), on the one side and the accused, appellants, on the other, mention of which was only made as a motive for the crime. At the trial; however, giving details of that quarrel he stated that on the day of occurrence, at about 10.30 a.m.
All the accused came to his restaurant (Hotel) and picked up quarrel with Pashmeen (P. W. 10) over the ownership of a tea-cup. H4 further stated that after separation the accused appellants and the absconding accused went back to their shops (hotels). He also stated that at about 11.30 a.m.
When Poordil deceased and Khanzada (P, W. 11) were coming towards his hotel, the accused appellants and the absconding accused, who were standing on the road side armed with 'tamachas', opened fire on both of them, hitting both of them, the deceased fatally. While admitting his relationship with the deceased, Khanzada (P. W. 11) and Pashmeen (P. W. 10), Khadi Khan (P. W.
9) denied having any enmity with the accused-party. The defence also failed to ask any question from him in this regard, which would mean that the fact that he was having no previous enmity with the accus--ed-party was accepted by the defence. In cross-examination he admitted that in the first scuffle between Pashmeen (P. W, 10) and the accused---party no one was injured.
9. Pashmeen (P. W. 10) is the other witness to the occurrence, who claimed his presence on the spot at the relevant time. In his statement at the trial he supported the version of Khadi Khan (P. W. 9) in all material respects. He also admitted having quarrelled over the ownership of a tea-cup-with the accused party some time before the occurrence. He further stated that some time after the first quarrel, Poordil deceased and Khanzada (P. W. 11) were coming towards his hotel and when they reached near the hotel of Gharib Gul accused, they were fired at by the accused-appellants and the absconding accused, which shots hit both Poordil and Khanzada (P. W. 11), the former fatally. He claimed to have seen the occurrence with his own eyes. He was also not questioned when he said that he bad no previous enmity with the accused-party.
10. Khanzada (P. W. 11) is another witness on whose statement the prosecution relied at the trial. He is the father of Poordil deceased and was, according to prosecution version, accompanying the deceased when both of them were coming from the 'Mandi' of Mukarram Khan to the hotel of Khadi Khan (P. W. 9). When both of them reached near the hotel of Gbarib Gul and Zahir Khan accused, they saw Maazullah, the convicted accused, also standing there. All the three accused, who were armed with 'tamachas', on seeing this witness and the deceased, as stated by this witness, opened fire on them, which proved effective, injuring the witness on his left buttock and Poordil fatally. This witness also claimed having no previous enmity with the accused party. Here also the defence did not put any question to him in regard to previous enmity, which would mean that the fact that there was none was accepted by the defence.
11. Khan Said (P. W. 12) fully corroborated prosecution story in material respects. He claimed to have seen the occurrence with his own eyes.
12. All the eye-witnesses, named above, produced at the trial were mentioned as such in the first information report lodged by Khadi Khan (P. W. 9).
13. This much about the eye-witness account furnished at the trial, which was relied upon by the learned trial Judge for convicting the accused-appellants.
14. There are, however, some other material facts which emerge out of the evidence brought on record. Since they have a bearing on the decision of this case, we would like to mention them at this stage. These are as hereafter stated.
15. Gharib Gul, accused appellant, while in injured condition, was seen running, at the relevant time, from the place of occurrence and was chased and arrested by the police party headed by Hamsheerullah, H. C. (P. W. 7). On the day of occurrence Hamsheerullah, H. C. (P. W. 7) was present on duty in Shabqaaar Bazar. It was about 11.30 a.m. When he heard the reports of fire. He rushed towards the place of occurrence and saw Gharib Gul, accused-appellant, running therefrom, who was chased by the police-party and apprehended from a room situated in the 'Mandi' of Mukarram Khan. This 'Mandi' according to the statement of Lal Badshah A. S. I. Recorded in the High Court on 13th March, 1983 is situated at the distance of one furlong from the place of occurrence towards the South. No incriminating article was seen by Hamsheerullah, H. C. (P.W. 7) in the hands of Gharib Gul, accused-appellant, when he was running, nor was any recovered from him when he was appre--hended. His clothes were blood-stained. After arrest he was taken to the police station.
16. Maazullah, accused appellant, was arrested by Lal Badshah, A. S. I, (P. W. 15) after a chase when he tried to run away from the place of occurrence. On the day of occurrence, at the relevant time, Lal Badshah, A. S. I. (P. W. 15) was standing outside the police station, situated at a distance of one furlong from the place of occurrence towards the East, when he heard the reports of fire. He also saw Maazullah, accused-appellant, running after a 'tonga' on which he climbed. The A. S. I. Chased the 'tonga' and arrested Maazullah, accused-appellant. His shirt was stained with blood. He was brought to police station and about ten or fifteen minutes later, Khadi Khan (P. W. 9) came to the police station for lodging the first report.
17. Both of the accused appellants were examined under section 342, Cr. P. C. By the trial Court.
They both admitted that on the day of occurrence at about 10.30 a.m. They and the absconding accused Zahir Khan had picked up quarrel over the ownership of a tea-cnp with Pashmeen Khan (P. W. 10) at his hotel. While explaining injuries on his body, Gharib Gul, accused appellant, stated in the following words "I was beaten by P. W. Pashmeen when I went to his hotel for demanding the cup of tea."
He, however, denied the charge of murder and attempted murder, as was attributed to him by the prosecution. To the question that after the commission of crime on the relevant day and time he was arrested by Hamsheerullah, H. C. (P. W.7), and other police officials, from inside the room of the `Mandi' of Mukarram Khan, Gharib Gul accused-- appellant, replied :- "No. The truth of the matter is that after we were attacked by the complainant-party, I saw the policeman and ran towards him for protection and he has chased me."
In reply to the question that on the relevant day after the occurrence he was arrested from a 'tonga' by Lal Badsbah, A. S. I. (P. W. 15) when he tried to escape from the spot after the firing, Maazullah, accused-appellant replied :- "It is wrong that I was escaping. As a matter of fact we were attacked and I on account of fear ran to the police officer for pro--tection and he arrested me".
He also denied having committed the murder of Poordil deceased or made an attempt at the life of Khanzada (P. W. 11).
18. The motive for the crime, as alleged by the prosecution, stands established on the record. Even the accused-appellants in their state--ments under section 342, Cr. P. C. Admitted the incident of quarrel that occurred at 10.30 a.m. On the same day.
19. The prosecution version as the cause of Poordil's death and injury on the person of Khanzada (P.
W. 11) was supported by the medical evidence brought on record.
20. The question which arises for determination is whether or not the evidence brought on record, as elucidated in the above paragraphs, was enough to bring home the guilt to the accused- appellants. In search of answer to this question the first thing to be seen would be the presence of the eye-witnesses on the spot. If it were established that they were present on the spot and had seen the occurrence, then the question would arise whether or not what they stated at the trial was true account of the occurrence, and when considered alongwith other circumstantial evidence, available on the record, furnished firm basis for the conviction of the accused-appellants on the capital charge.
21. M. Zahoorul Haq, Bar-at-Law, Advocate appeared on behalf of the accused-appellants, Mr. K. G.
Sabir, Bar-at-Law, Advocate appeared on behalf of the State. Mr. Taimoor Muhammad Hayat, Advocate appeared on behalf of Khanzada petitioner, who has filed the revision petition. Their arguments were heard and the record perused with their assistance.
22. The learned counsel for the accused appellants argued that the prosecution has failed to prove its case against the accused-appellants, beyond reasonable doubt, that the prosecution witnesses did not attribute any specific role to either of the accused-appellants in either killing Poordil or injuring Khanzada (P. W. 11), that there was only one injury on the body of the deceased and only one injury on the person of Khanzada (P. W. 11), of some dimensions, and that such injuries could have been caused by one person with one pistol or revolver, or at the most, by two persons having pistols or revolvers of the same bore or calibre, and certainly not by three persons, as alleged by the prosecution. He further argued that since the prosecution failed to pinpoint the assailants who fired fatal and the effective shots, the possibility could not be ruled out that the deceased and Khanzada (P. W. 11) had been fired at by Zahir Khan, the absconding accused. He also contended that both the accused-appellants were apprehended by the police in the vicinity of the place of occurrence soon after the occur--rence and none of them was found in possession of any incriminating article. This circumstance, he urged, lends support to the argument that most probably Zahir Khan, absconding accused, was the person who had fired at the deceased as well as Khanzada (P. W. Il) with his pistol, and since he was armed, he could not be apprehended on or near the spot. He also contended that the prosecution story did not fit in into other cir-- cumstances of the case and for that reason the prosecution case was doubtful. The learned counsel also argued that the prosecution has failed to explain the injury received by the accused appellant Gharib Gul and this suppression of fact made the prosecution case doubtful.
23. The learned counsel representing the State, however, argued that the presence of the eye- witnesses at the place of occurrence is estab--lished on the record, that the eye-witnesses had no previous enmity with accused-appellants and no false motive to implicate them in the crime or to substitute them for the real culprit, that the first report was promptly lodged at the Police Station without leaving the chances of deliberations or consultations and that accused-appellants were arrested by the police near the spot immediately after the occurrence. He further argued that the medical evidence and the other circumstantial evidence supported the prosecution case, which stood proved against the accused-appellants beyond reasonable doubt. The learned counsel for Khanzada petitioner while adopting the same arguments urged that since the prosecution was able to prove its case against the accused-appellants beyond the shadow of doubt, the accused appellants, in absence of any mitigating circumstance, deserved to be sentenced to death for the murder of Poordil. He also suggested that for an attempt on the life of Khanzada petitioner, the accused-appellants deserved to be punished severely.
24. We have considered the arguments of the learned counsel for the parties in the light of the material brought on record.
25. The first thing to be determined in the case is the presence of the eye-witnesses on the spot at the relevant time. Undisputedly, the occur--rence was preceded by an incident which had occurred same day at 10-30 a.m. At which the accused appellants and Zahir Khan, absconding accused; had quarrelled with Pashmeen (P. W. 10) at his hotel over the ownership of tea-cup. The parties were, however, separated by the people who had collected there. Although prosecution alleged that no one was injured in that grappling but Gharib Gul, accused appellant, while explaining injury on his person, in his Cross-examination stated that he was injured in the incident.
Since the prosecution did not care to explain the injury found on the person of Gharib Gul, accused appel--lant, we would, therefore, accepting the version of defence in this regard, from the view that the first quarrel between the parties at 10.30 a.m. Same day had ended in an injury to Gharib Gul, accused-appellant. This prior incident between the parties also established the presence of Pashmeen (P. W. 10) on the spot. Thereafter, keeping in view the business timings, Pashmeen (P. W.
10) must have, in all probability, stayed at his hotel. His presence on the spot at the relevant time was, therefore, established. The presence of Khanzada (P. W. 11) on the spot at the relevant time cannot be disputed because he was having on his person the stamp of injury, which he had allegedly received with one of the shots fired by the accused appellants and the absconding accused. The presence of Khadi Khan (P. W. 9) on the spot at the relevant time cannot be disputed, for according to unrebutted evidence on the record he was running a snuff shop and a hotel near the place of occurrence. Moreover, the prompt lodging of the first report, i.e. After about 20 minutes of the occurrence, by him at the Police Station established his presence on the spot at the relevant time, or otherwise in such a short time it would not have been possible for the prosecution to procure him from his village, situated at a distance of one mile from the place of occurrence, in order to make the first report. We would, in the alleged circumstances, also accept the presence of another eye-witness Khan Said (P. W. 12) on the spot at the relevant time. We have, therefore, no doubt in our mind that all the eye-witnesses to the occurrence were present on the spot when the occurrence took place. As a necessary corollary, we would accept that the eye-witnesses had seen the occurrence with their own eyes as alleged by them.
26. The presence of the accused-appellants, alongwith the abscon--ding accused, on the spot at, the time of occurrence was fully estab--lished on the record, not only by the version given by the prosecu--tion witnesses, but by the statement made by Maarullah, accused appellant, under section 342, Cr. P. C. In the trial Court. The accused appellants were also arrested by the police officials, Lal Badshah P. W. 15) and Hamsheerullah (P. W. 7), while making bid for their escape from the place of occurrence soon after the occurrence.
27. 1t is established on the record by medical evidence that Poordil deceased had died of bullet injury and Khanzada (P. W. 11) also re--ceived bullet injury on his buttock. There is, therefore, no escape from the conclusion that in the attack the assailant or the assailants had used fire-arm, causing the death of Poordil and injury to Khanzada (P. W. 11). The question which, however, arises for determination is whether all the three assailants, the accused appellant and the abscon--ding accused, were in possession of fire-arms and had used them, as alleged by the prosecution, or two of them had possessed fire-arms and had used them, or it was the act of only one person which had caused the death of Poordil and injury to Khanzada (P. W. 11). In other words, the question to be determined is whether the fatal shot fired on the deceased and the injury caused to Khanzada (P.
W. 11) were by one person or by two or more of the alleged assailants. If it were the act of one person, then the question would arise whether or not the other two named assailants were sharing common intention with him so as to be responsible for what was done by their companion.
28. According to medical evidence the injuries on the body of Poordil deceased and Khanzada (P.
W. 11) were of same dimension. Such injuries on both the persons could possibly be caused by the use of same weapon by one assailant, or by the use of two weapons of same bore and calibre by two assailants. The coincidence that the two assailants while committing crime possess and use weapon of the same bore and calibre to produce same or similar results on the target rarely happens. Further, in this case both the accused appellants were chased by the police and arrested immediately after the occurrence in the vicinity of the place of occurrence. Both of them were neither found possessing incriminating articles when they were chased, nor on search after arrest.
The occurrence took place in the bazar and while running in bazar it could not have been possible for the accused appellants to dispose of the weapons, had they possessed them, without being detected by those who had chased and arrested them. Taking into consideration all these facts, we are of the view that the accused appellants did not possess any fire-arm at the relevant time.
So the question of their using those weapons and causing injuries either to the deceased or to Khanzada (P. W. 11) did not at all arise.
29. One fact prominently stands out on record and that is that not a single eye-witness has stated that out of the three assailants who had hit Poordil deceased and who had hit Khanzada (P. W. 11).
In the first information report it was mentioned that there was pro--miscuous firing. At the trial it was stated by all the four eye-witnesses that all the three accused effectively fired at Poordil deceased and Khanzada (P. W. 11). The eye-witnesses were standing very close to the assailants and being a day occurrence it was unbelievable that they were not in a position to pinpoint those assailants whose shots had really proved effective. Such assailants could either be one or two, and certainly not three, because the deceased and Khaazada (P. W. 11) were conduct of the eye- witnesses at the trial in not pinpointing the assailants whose shots had hit the deceased and Khanzada, in our view, was intentional so that the case could be brought within the purview of section 34, P. P. C. This conclusion also supports the conclusion reached by us in the above paragraph.
30. We have in paragraphs 28 and 29 above reached the con--clusion that neither the accused appellants were armed with `tamachas' when the occurrence at which Poordil lost his life and Khanzada (P. W. 11) got injured took place, nor had they used any such weapon for causing injuries to either of them, nor were they pinpointed for having done so by the prosecution witnesses who had seen the occurrence from a very short distance. In such circumstances, they could not be held responsible for the crime which appears to have been committed by their co-accused, unless it was established on the record that they were also sharing with their co-accused the intention to commit the crime their presence at the spot at the relevant time notwithstanding.
31. It has come on the record that the hotels run by Pashmeen (P. W. 10) and the accused appellants and the absconding accused were situated in close proximity. The first quarrel between Pashmeen (P. W. 10), on- one side, and the accused-appellants and Zahir Khan, absconding accused, on the other, over the ownership of a tea-cup was admitted by both the parties. The presence of Pashmeen (P. W. 10) in his hotel after the first quarrel was established on record. The presence of the accused appellants in their hotels after the first quarrel was not only proved by the prosecution evidence but was also admitted by the accused appellants. That being so, had the accused appellants intended to commit the crime then, in all probability, they should have selected Pashmeen (P. W. 10), who was all along present in a hotel nearby, as their target. They, however, did not do so. This conduct of the accused appellants leads us to the conclusion that they had no inten--tion of committing the crime for which they have been convicted, much less on the person with whom, according to prosecution's own case, they neither had any previous enmity, nor had quarrelled on earlier occasion.
32. According to the site plan Exh. P. B and the other evidence brought on record, the occurrence took place near the hotel of the accused-party, which would mean that it was the complainant- party, and not the vice versa. It does not appeal to reason, as alleged by the prosecution, that when the deceased and his father Khanzada (P. W. 11), with whom the accused party had no previous enmity or grudge, were coming towards the hotel of Khadi Khan (P. W. 9) they were suddenly fired at by the accused party. Once this allegation of the prosecution witnesses is not accepted, then from the facts stated in this paragraph an inference can be drawn that the accused appellants had no intention of committing the murder of Poordil or attempting at the life of Khanzada (P. W. 11). Had such intention been there, then, in all pro--bability, it would have been the accused party who would have gone to the hotel of Pashmeen (P. W. 10) to commit the crime.
We are mindful of the proposition that a common intention on the part of all the accused can develop on the spur of amount when they are under attack, but such development of common intention has to be proved by the prosecution either by direct evidence or by circumstantial evidence, which in his case is totally lacking. The circumstance that the accused appellants made a bid for their escape from the place of occurrence would by itself not constitute such evidence as would saddle them with the liability of sharing a common intention with Zahir Khan, the absconding accused, who appears to have committed the crime. Placed in the circumstances in which the accused appellants were, any sane person would, certainly, not have preferred to stay on the spot after the occurrence, as he would have been vulnerable to attack by the other side.
33. It is true that where previous enmity between the complainant-- party and the accused party is non-existent the chances of false charge are remote. This, however, cannot be accepted as a rule of universal application and, each case has to be decided on its own merits. Moreover, in view of the tendency on the part of the complainant-- party to involve as many persons of the accused party in the crime as possible, the Court has to be very cautious in applying this principle to a case in which more than one accused may have been charged for committing the crime.
34. It is also true that in a promptly lodged First Information Report since the chances of consultations and deliberations are not there the Courts lean in favour of the presumption that the persons named in the First Information Report as accused may probably be so. This presumption would, however, stand negatived where all those who could be consulted by the complainant party are per chance pre--sent on the spot at the relevant time, and all those who are named as accused in the First Report, whether all of them participate or do not participate in the commission of the crime, are also present on the spot.
35. Considering the entire material available on record we are of the view that in this case the prosecution has miserably failed to prove that the accused appellants were sharing a common intention with the absconding accused in committing this crime. Section 34, P. P. C. Would, therefore, not be attracted to the case of the accused appellants. The eye-witness account furnished at the trial regarding the involve--ment of the accused appellants in the crime was not truthful. In any case, the circumstances explained above have created a doubt in our mind as to the participation of the accused appellants in the crime with the intention of committing the crime.
36. In the result, giving the accused appellants the benefit of doubt, we, while accepting their appeal, hereby set aside their conviction and acquit them of both the charges. They shall be set at liberty forth--with, if not required in any other case.
37. For the reasons aforesaid, the revision petition is dismissed.