ALLAH BAKHSH, J.-Matiul Haq (30), Rafiullah (30), Karimullah (55), Khadimullah (58), Hazrat Younis (28), Zarin (28) and Abdur Razaq (65) were convicted under section 302/149, P. P. C. And sentenced to life imprisonment on each count and to pay a fine of Rs. 5,000 or in default to undergo further 6 months' R. I. For the murder of Sher Alam;(50), Qalandar (26), Rustam (24), Atai Khan (45) and Jan Muhammad (30). The sentences were to run concurrently and half of the fine, if realized, was to be paid equally to the heirs of the deceased as directed by Mr. Inayatullah Khan, Sessions Judge, Mansehra per his order dated 20th December, 1980. The convicts have brought criminal appeal No. 1 of 1981 against their conviction and sentences whereas the complainant Jan Muhammad has preferred criminal revision No. 2 of 1981 for enhancement of their sentences. We propose to dispose of the appeal and the revision per this judgment.
2. The facts of the prosecution case briefly are that 25th of September 1979 was an election day and three polling booths were set up for the constituencies Banian, Deedal and Dagai in Basic Health Unit (herein--after called the hospital), Kharari. It was at about 11.15 a. m. That there was a commotion which attracted Sher Azam and Jan Muhammad (P. W. 16) to the gate of the hospital.- All of a sudden the appellant Matiul Haq stabbed Sher Azam with a `chhuri' and slaughtered him. In the meantime Qalandar and Rustam who were the sons of Sher Azam appeared. Khadimullah fired a shot at Qalandar whereas Abdur Razaq fired a shot at Rustam. Atai Khan who had tried to save Sher Azam from the clutches of the assailants was fired at by the appellants Hazrat Younis and Zarnay. Jan Muhammad son of Shamsher received a fire--arm injury on his head and was grievously injured. When the turmoil was over it was found that Sher Azam, Rustam, Qalandar and Atai Khan had lost their lives and Jan Mohammad was on the verge of death. 1t was in Bandi Bazar that Jan Muhammad (P. W. 16) lodged the F. I. R. With S. H. O. Mian Dad (P. W. 18). The latter prepared the injury sheets and inquest reports and sent the dead bodies and the injured to the hospital under the escort of police constables. On arrival at the spot he prepared the site plan at the instance of the eye-witnesses. He recovered an empty of 7 m. m bore and blood-stained earth in the presence of Jan Muhammad (P. W. 16). The Murasila was sent to the police station where it was incorporated into a formal F.
1. R. By constable Mir Afzal (P. W. 12).
3. On'25th September, 1979 Dr. Juma Khan conducted the post-mortem examinations on the dead bodies and found the following :-
(1) Sher Azam-
(1) A stab wound 1 --" x --" placed in the middle of the chest 2" above the tip of the chest bone.
(2) A stab wound 3" x 1'' middle of the abdomen just below the terminal end of the chest bone.
(3) A stab wound 1" x --" right side of abdomen 3" from the mid line and 10" below the right nipple.
(4) Incised wound 4" x --" x --" front and left side of neck 1-- " above the sternum notch.
(5) Fracture lower 1/3 of the left fore-arm just above the wrist joint.
(2) Qalandar-
(1) Fire-arm entrance wound --" x --" left lateral chest walls 5--" from the mid line and 7--" above the left anterior superior iliac spine with fracture of the underlying ribs.
(2) Exit 1" on right front lateral chest wall 1-- " below the right nipple and 4" from the mid line with fracture of the underlying ribs:
(3) Rustam- '
(1) Entrance wound fire-arm --" x --" with scorched margins left shoulder blade 4--' from the mid line and 1" above the anterior angle of the left shoulder blade.
(2) Scorching surface 1" x --" placed to the middle of left shoulder blade.
(4) A tai Khan-
(1) Entrance 1" x --" with-scorched margin on the front of the left chest wall 2" from the mid line and 5" above the life nipple.
(2) Exit 1" x 1" on the right shoulder blade.
(3) Entrance J" x I" on the lateral side of the right upper arm 1" below the shoulder joint.
4. The doctor had examined Jan Muhammad the same day at 1.45 p. m. And found the following injuries on him :-
(1) Entrance --" x --" with scorched margins placed on the right lateral side forehead with fracture of the underlying bone 3" above the right eye-brew.
(2) Multiple exits over an area of 2" x 2" in the middle and right side of the forehead.
He opined that the injuries were caused by fire-arm, were grievous and referred to a injured to D. H.
Q. Hospital, Mansehra for treatment. Jan Muhammad succumbed to his injuries and on 27th September, 1979 at 9.45 a. m. Dr. Amanullah Khan (P. W. 14) conducted autopsy on his dead body and found :--
(1) An entry wound on the right side corner of the forehead stitched right upper eye lid swollen and bluish in colour.
The fronto parietal junction is depressed with a hole and fractured extend--ing posteriorly into the parietal lobe. A pellet was recovered from the posterior crania I. Fossa.
5. The S. H. O. Searched for the accused but they made themselves scarce. The warrants for the arrest of Matiul Haq, Khadimullah, Zarnay, Hazrat Younis and Abdur Razaq under section 234, Cr. P.
C. Could not be executed by constable Nurul Huda (P. W. 10). The warrant for the arrest of Rafiullah was entrusted to constable Muhammad Manzoor (P. W. 3) but it was returned unserved and he effected service of the proclamation under section 87, Cr. P. C. Against him. It was on 1st November, 1979 that Karimullah surrendered himself to S. H. O. Muhammad Yunis Khan (P. W. 7) and the latterrd arrested Rafiullah when his application for bail before arrest was dismissed. The rest of the accused surrendered themselves on 18th November, 1979 and were taken into custody by him.
6. The motive for the crime as alleged by the complainant in the F. I. R. Is that the polling station had been shifted with a pre-planned scheme. The deceased Sher Azam was a popular political figure and the polling station was shifted from the primary school to Kharari Hospital under a plan prepared by Malang Khan and Faqir Muhammad Khan who had little chances of their success.
7. All the accused bad denied the allegations made by the prosecu--tion against them and had pleaded not guilty to the charge. They produced no defence.
8. The deceased Qalandar and Rustam were the sons of the deceased Sher Azam. The latter was the first cousin of the complainant Jan Muhammad (P. W. 16) and the deceased Atai Khan and Jan Muhammad were his Tarboor. The appellants Matiul Haq and Rafiullah are brothers and Matiul Haq is son-in-law of appellant Khadimullah. The sister of appellant Zarin is married to Khadimullah whereas a daughter of Khadimullah is married to the appellant Hazrat Younis. The mother of the appellant Abdur Razaq and the grandmother of the appellant Hazrat Younis are sisters. The niece of Abdur Razaq is engaged to the son of Hazrat Younis. The appellants Karimullah and Khadimullah are brothers. All the appellants are the residents of village Taya Jadid situate within the limits of Police Station Batagram. Gul Afzal (P. W. 17) is a brother of the deceased Sher Azam and a cousin of the complainant Jan Muhammad.
9. It was a polling day when the unfortunate incident took place and 5 persons lost their lives. The entire edifice of the prosecution case mainly rests on the ocular testimony of Jan . Mohammad (P.
W. 16) and Gul Afzal (P. W. 17). The former is the cousin and the latter brother of the deceased Sher Afzal. Jan Muhammad was polling agent of Muhammad Khaliq who was opposed by the appellant Abdul Razaq and was stationed in Deedal booth. The Kharari polling station was located in the Hospital and comprised of 3 polling booths. The polling booth for Dagai was towards the northern gate and the polling booths for Deedal and Banian were towards the southern gate of the Hospital.
The deceased Sher Azam and the appellant Matiul Haq were the rival candidates. The polling station, according to S. H. O. Mian Dad Khan (P. W. l8), had 4 policemen and 8 persons from the Forest Department, Jan Baz Force and others under the charge of A. S. I. Ahmad Ji (P. W. 8).
Muhammad Ashraf Khan (P. W. 11) was the Presiding Officer and Jehanzeb Khan (P. W. 8) was the Magistrate on duty. The presence of the P. W. Jan Muhammad and Gul Afzal within the precincts of the Hospital -or outside it on eventful day may not be doubted but the prime question that arises is whether they had seen the incident and had spoken the truth.
10. The Magistrate Jehanzeb Khan visited the polling station at 9.30 a. m. And at about I 1 a. m. The pelting of stones between the opposite parties began. He was in the polling station when all of a sudden he heard the report of shots and was told by somebody that murders had been committed. The scene of incident was not visible from the place where he was and admitted that in order to escape injuries I had taken shelter in the bath room and when the occurrence was over I came out." He disclosed that 500 to 1,000 persons were present inside and outside the polling station and about 2,000 to 2,500 shots must have been fired. Muhammad Ashraf Khan (P. W. I1), the Presiding Officer, was supervis--ing the polling at Banian booth when all of a sudden firing began.
Many shots were fired and he too took shelter in the bath room and came out when it was all over: A. S. I. Ahmad Ji (P. W. 6) who was entrusted with the maintenance of law and order was inside the polling booth when the incident took place and did not say a word about it at the trial. It is manifest that hundreds of people were present inside and outside the polling station and hundreds of shots were fired. A look at the site plan shows that the incident took place in the compound of the Hospital near the northern gate. It can, therefore, be said that the incident would have been witnessed by a number of people, None, however, was produced by the prosecution except Jan Muhammad and Gul Afzal who are closely related to the deceased Sher Afzal, Rustam and Qalandar whereas Jan Muhammad is inimically inclined towards Abdur Razaq and others. Jan Muhammad admitted that his sister was married to Sultan Aurangzeb son of the appellant Abdur Razaq and for her murder, Abdur Razaq, his brother Ajoon, Sultan Aurangzeb and Abdul Khaliq were charged but they were acquitted by the Sessions Court in 1974. The appellant Matiul Haq was contesting the election against Sher Azam. The appellants are inter-related and both the P. Ws. Are obviously partisan and interested & witnesses.
11. It is in the F. I. R. That the incident was witnessed . By Jan Muhammad, Gul Afzal Sher Afzal and Muhammad Ayub but Sher Afzal and Muhammad Ayub were not produced at the trial. Sher Afzal is the brother of the deceased Sher Azam whereas Muhammad Ayub is their first cousin. No disinterested person from a sizeable crowd of the people gathered for polling their votes came forward to support the prosecution story. It is observed in Karam Dad v. Abdullah Khan and 2 others (1973 SCMR 12) that the fact that the incident took place in a busy market like the cattle fair where hundreds of persons must have been present also made it difficult to appreciate as to why no independent evidence could be procured. This was by itself a very suspicious circumstance. In Rahim Bakhsh v. Muhammad Iqbal and others (1976 SCMR 528), the incident of murder took place in broad daylight in a populated part of village in front of a factory where a large number of persons had collected but no independent witness was produced. The explanation that disinterested witnesses in serious incidents kept themselves away to avoid animosity of one of the parties, though not altogether discountable was, held, cannot be accepted in all cases as valid excuse for failure of the prosecution to produce the best evidence: P. Ws. Jan Muhammad and Gul Afzal are interested witnesses and it is desirable that their testimony be corroborated. The following observation with regard to an interested witness made in Sohni v. Bahaduri and 5 others (P L D1965 SC 111), can be referred to with advantage :- "Now an interested witness is undoubtedly a competent witness under the Evidence Act. The proposition that his testimony should be corroborated by independent evidence is however not of universal application. The question of this reliability must depend upon the circumstances of each case and the quality of his evidence. If his testimony is found reliable the Court may accept it even without any corroboration. But as a matter of prudence the Court insists on corroboration of his evidence when he is inimically disposed towards the accused and it will, therefore, be unsafe to base a conviction, on his testimony alone.
When questioned about the presence of the people at the time of the incident Jan Muhammad replied that "Excepting the accused party, the deceased and we the P. Ws. There were no other members of the public at the time. The voters of the Dagai booth were at a distance of 18 paces."
Gul Afzal did not -remember how many persons were present in the premises of the polling station but in the same breath admitted that they may be 200 to 300: It does not stand to reason that except these P. Ws. None else present at the spot had witnessed the incident. The distance of 18 paces could not obstruct the view of the voters and some people must have been present in the close vicinity of the spot. Both the witnesses, however, appear to have made an attempt to confine the entire incident to themselves and to exclude the presence of all the others altogether.
12. The origin of the incident is surrounded with mystery and nobody knows as to how it commenced. Jan Muhammad and Gul Afzal alleged that there was commotion near the northern gate which attracted them and Sher Azam to the spot. The disclosure by the Magistrat Jehanzeb Khan about pelting of stones between the opposite parties I significant and it transpires that the rival parties had picked up a quarrel and began pelting of stones at each other. There is no shred of evidence on record to indicate as to who had participated in stone pelting. Jan Muhammad who was polling agent at polling booth Deedal claimed that his aged father bad polled his vote, he escorted him to the northern gate and on his return to the booth he and Sher Azam on the noise of the people proceeded towards the gate. By noise, according to him, he meant "the altercation made by the accused" and added that the accused party were talking loudly with each other. He made no mention of the opposite party at all and we wonder if the accused party were shouting amongst themselves without any reason. The claim of Jan Muhammad to have accompanied Sher Azam towards the spot is rendered doubtful by the assertion of Gul Afzal who had a different story to tell. He stated that he, Sher Azam, Jan Muhammad and Ayub were in the `Dalan' when there was some noise near the gate and "Sher Azam went towards that side and asked as to what was happening." It is evident from what Gul Afzal stated that Sher Azam all alone proceeded towards the gate and he was not accompanied by Gul Afzal, Jan Muhammad or Muhammad Ayub. When questioned whether he had stated to the Police that he, Muhammad Ayub, Sher Azam and Jan Muhammad were present in the `Dalan' he replied in the affirmative but when confronted it was found that the names of Sher Azam and Jan Mohammad had not been recorded therein. Had Jan Mohammad been present in the `Dalan' the question of his accompany--ing Sher Azam from the polling booth of Deedal would not arise. It is apparent that it cannot be said with certainty whether Jan Muhammad had in fact accompanied Sher Azam on hearing the commotion. The allega--tion of Jan Muhammad that he had escorted his aged father to the northern gate does not appear.To be true because the voters of the polling booths of Deedal and Banian, according to Gul Afzal were to use the southern gate as entrance and exit for them. Gul Afzal did not, claim to have come out of the `Dalan' and to have accompanied Sher Azam to the spot. The `Dalan' which Gul Afzal pointed out to the Investigating Officer finds no place in the site plan and he did not assert that he saw the incident from the `Dalan'. It is pertinent to note that Jan Muhammad did not mention the presence of Gul Afzal with Sher Azam when the latter attracted by commotion rushed to the spot. Their assertion to have been present at the spot and to have witnessed the incident is obviously not free from doubt and the possibility that they reached the spot after the incident cannot be excluded.
13. The conduct of both these witnesses is questionable and does not appear to be natural. The public functionaries, namely, the Magistrate Jehanzeb Khan and the Presiding Officer Muhammad Ashraf Khan had taken shelter in the bath rooms to save their lives and one would wonder if both the witnesses were bold enough to have ventured to rush to the scene of incident. There was incessant firing and, according to Jehanzeb Khan, about 2,000 to 2,500 shots must have been fired.
There was pelting of stones also. Surprisingly enough, neither Jan Muhammad nor Gul Afzal mentioned of the shots rained and the stones pelted at the spot. The innumerable shots must have followed and not preceded the noise heard by Jan Muhammad., Gul Afzal and others. Both have suppressed the material facts pertaining to spree of shooting and pelting of stones and are absolutely mum about them. Nobody can say positively whether Sher Azam was at the spot when the commotion began or he was attracted to it. The Investigation Officer. Mian Dad Khan recovered one empty of 7 m. m. Bore only and that too not from the spot where the dead bodies lay in a pool of blood but from point; No. 12 situate outside the gate of the Hospital. We wonder as to how alt the empties, may be hundreds in number, disappeared into the thin air before the arrival of Mian Dad Khan. Both the witnesses admitted that they made no hue and cry and out of fear they did not step forth to save the lives of their kith and kins who were being done to death before their eyes. Had they been presentat the spot nothing would have prevented the assailants from doing away with them particularly when Jan Muhammad was an arch enemy of Abdur Razaq.
14. Jan Muhammad who is the maker of the F. I. R. Connected each of the appellants, except Rafiullah and Karimullah, with each of the victims but made no mention of the assailants of the deceased Jan Muhammad who was critically injured then and was on the verge of death.
Bewildered by the omission he charged the appellant Rafiullah for catching hold of Jan Muhammad and the appellant Karimullah for firing at the latter in his supplementary statement recorded, by the police the following day. In the F. I. R. He had connected the deceased Sher Azam with the appellant Matiul Haq, the deceased Qalandar with the appellant Khadimullah, the deceased Rustam with the appellant Abdur Razaq, the deceased Atai Khan with the appellants Hazrat Younas and Zarin but could not connect the injured Jan Muhammad with anybody. The omission was significant and he filled to the lacuna in the supplementary statement and at the trial. He had disclosed in his police statement that he was told by Khawaja that Rafiullah caught hold of Jan Muhammad whereas Karimullah fired at him. This part of the police statement he chose to disown at the trial. One fact which emerges prominently is that Khawaja was the source of his information but Khawaja though cited as a witness for the prosecution was not produced at the trial. A grave doubt raises its head into one's mind with regard to the false implication of Rafiullah and Karimullah. It is remarked in Wasiullah v. Mirza Ali and others (PLD 1963 SC 25) that where the complainant named a large number of persons and there was a motive to include as many persons as accused as possible and if one accused at least was admittedly falsely implicated it was tantamount to a suspicious circumstance. In Aftab Anwar Jalil v. The State (PLD 1971 Kar. 156), Court was held entitled to acquit even those accused not proved to have been falsely implicated if it was found that innocent persons had been dishonestly implicated in the crime.
15. The site plan was prepared on the pointation of P. Ws. Jan Muhammad and Gul Afzal. A look at it shows that Atai Khan was at point No. 1 when he was fired at by Hazrat Yaunas and Zarin from point No. 8 and the distance between. Both the points was 14 feet. Rustam was at point 1-C when he was fired at by Abdur Razaq from point No. 10 and the distance between both the points was 4 feet. Jan Muhammad was at point No. 1-D when he was fired at by Karimullah from point No. 11 and the distance between both the points was 15 feet. The medical evidence shows that the wounds of entrance found on the dead bodies of Atai Khan,.Rustam and Jan Muhammad were scorched. The question to be determined is whether these injuries could be scorched if the shots were fired from the distances indicated above. In the Identification of Firearms and Forensic Ballistics by Burrard the following observation has been made at page 58 :-- But for all practipal, purposes the extreme limit of the scorching range is so small that a reasonably approximate estimation of the range is good enough. With a service rifle scorching may occur upto 9 inches; and with the revolver or pistol upto 2 to 3 inches. So it can be assumed with absolute correctness that the presence of scorching is definite proof that the shot was fired from a range of but a very few inches.
The distances between the assailants and the victims given in the site plan rule out the possibility of scorching of wounds and it can be said that both the witnesses were not present at the time when the incident took place. It is contended that being illiterate they were not able to give the distances exactly. Jan Muhammad, however, during the course of his statement stuck to the stand and reiterated the distances in his testimony. He stated that "Khadimullah had fired from a distance of about four paces at Qalandar. Abdur Razaq had fired from a distance of about two paces at Rustam. Karimullah had made the fire at Jan Muhammad from a distance of about two paces." Since the scorching could not take place from beyond a range of few inches the testimony of both the witnesses comes under a thick cloud of doubt.
16. Jan Muhammad had not given the description of weapons carried by the appellants in his F. I. R.
Nor mentioned -of them. At the trial. Gul Afzal, however, stated that "the accused Matiul Haq was armed with dagger. Khadimullah and Abdur Razaq were armed with pistols. Hazrat Younas and Zarnay had five-shot bullet rifles and Karimullah shotgun". He claimed to have given such a description of weapons in his police statement but when confronted it was not found so recorded therein. It is clear that he has made improvement in his statement at the trial and introduced a fact which he had not mentioned in his police statement. Their omission to describe the weapons, at the proper stage contributes greatly towards the doubt about their presence at the spot. The assertion of Gul Afzal that Karimullah had a shotgun finds support from no quarter. During his autopsy a pellet was. Recovered from the skull of Jan Muhammad and the doctor handed it over to the police in a sealed bottle. The D. S. P. Sent back the post-mortem examination report to the doctor with a querry whether the bottle contained a pellet or a bullet because the victim was alleged to have received a bullet injury. The reply of the doctor is not available on the record and during his statement at the trial he found it difficult to wriggle out of the novel situation he found himself in. Thrice in his examination-in-chief he referred to the pellet but when pressed by the prosecution he said that "only an expert can tell whether the piece of led recovered from the skull was a bullet or a pellet". In column 12 of the inquest report of Jan Muhammad there is mentioned of a bullet. We were anxious to have a look at the metallic piece in order to see whether it was a pellet or a bullet but it could not be placed before us for our examination and a photostat copy of an order of a local Magistrate dated 15th November, 1981 was produced to show that the case property be destroyed. The words "after the appeal period" have been inserted in the order but these are in different handwriting. Be that as it may, it is difficult to say positively whether Jan Muhammad was fired at with a shotgun or a rifle. Thus, the medical evidence does not lend corroboration to these witnesses.
17. The learned trial Judge observed in the impugned judgment that the witnesses had been confronted with their police statements but the police statements were not brought on the file. The learned counsel for the complainant strenuously contended that the police statement had not been proved as required, by law, their copies had not been brought on the record nor exhibited an, as such, no reference to these statements could be made: He in this context placed reliance on Nazir Hussain v. Muhammad Shafi and others (P L D1965 SC 188), wherein it is inter alia held that a state--ment of a witness recorded by the police under section 161 of the Code cannot be utilised as substantive evidence and can only be utilised under section 162 of the Code to contradict such witness in the manner provided by section 145 of the Evidence Act, it escaped his notice that in the instant case the Investigating Officer Mian Dad Khan proved the statements of the witnesses recorded by him and stated that --`I have recorded the statements of Jan Muhammad, Gul Afzal, Sher Afzal, Muhammad Ayub, Shamshair, Taj Muhammad and the supplementary statement of Jan Muhammad. They are in my hand." It is evident that the police state--ments of the aforesaid P. Ws.
Have been proved through their scribe Miaq Dad Khan. The original statements are available for perusal and the accidental omission to place the copies of these statements on the record would be, in the circumstances, of little significance and the objection would not prevail.
18. The Magistrate Jehanzeb Khan, as remarked above, mentioned of pelting of stones by the rival groups and about 2,000 to 2,500 shots fired. P. Ws. Jan Muhammad and Gul Afzal denied that there had been cross firing. Gul Afzal had, however, stated before the police that the partymen of Abdur Razaq were firing from the `khwar' side and had fired about 100 to 150 rounds and that they had not seen them because they were at a distance. He chose to disown the said police statement at the trial. The site plan shows that the appellants had run from point No. 7 and entered the hospital through its northern gate. Curiously enough, none of the witnesses referred to this fact at all and it appears to be the creation of the imagination of the Investigating Officer. It is true that the site plan is not a piece of substantive evidence but it is equally true that it cannot be discarded altogether and reflects the prosecution story narrated by the witnesses on whose pointation it was prepared.
19. Shamshair Khan (P. W. 13) is the father of the deceased Jan Muhammad. He stated that on receipt of the information of injuries sustained by his son he reached the spot and was met by Khawaja, Gul Afzal, Sher Afzal, Ayub and Jan Muhammad who told him that his son was caught hold of by Rafiullah and was fired at by Karimullah. He was further told that Sher Azam was stabbed by Matiul Haq, Qalandar was fired at by Kbadimullah, Rustam was killed by Abdur Razaq whereas Atai Khan was shot at by Hazrat Younas and Zarin. He claimed to have mentioned all these facts in his police statement but when confronted it was found that all he had stated was that on arrival at the spot Khawaja Muhammad told him that Jan Muhammad was caught hold of by Rafiullah and fired at with a `topak' by Karimullah. It may be pointed out that he made no mention of the presence of Gul Afzal, Sher Afzal, Ayub and Jan Muhammad at all. His source of information was Khawaja who was g not produced by the prosecution at the trial and with his elimination from the trial proceedings the source of information of Shamsher could not be established. Moreover, Shamsher had never stated in his police statement that Sher Azam was stabbed by Matiul Haq and the other appellants had fired at the other victims as narrated by him. His statement is, therefore, of no assistance to the prosecution.
20. It is alleged that the appellants had absconded soon after the incident. It is worth mentioning that the incident had taken place on r 25th September, 1979 whereas warrant for the arrest of the appellant Karimullah was obtained on 5th November, 1979, i.e. One month and ten days after the incident. The warrant for the arrest of Rafiullah is no; available on the record. Mian Dad Khan furnished a ridiculous explana--tion for the delay and said that since their relatives had undertaken to produce them he had not obtained their warrants earlier. He, however, admitted that he had neither recorded the statements of the relatives nor bad mentioned in the `Zimnies' that both were to be produced by their relatives. Moreover, people do abscond whether charged rightly or wrongly for murders and abscondence per se would not point to their guilt. Furthermore abscondence has been held in Liaqat Ali v. Masa,il Khan and another (1980 SC M I R 208), to be a weak form of corroborative evidence.
21. P. W. Jan Muhammad had not lodged the F. I. R. With A. S. I. Ahmad Ji (P.. W. 8) who was available at the spot and was incharge of the police post stationed at the polling station. Bandi Bazar, accord--ing to Mian Dad Khan, was hundred yards away from the spot. It can be said that Jan Muhammad, Gul Afzal and others joined their heads together and finally decided whom to charge for the gruesome murders of their kith and kins. They did not associate A. S. I. Ahmad Ji with the matter deliberately and left for Bandi Bazar where Mian Dad Khan happened to reach and it was he who recorded the F. I. R. The testimony of both the witnesses does not inspire confidence and is replete with grave doubts and suspicions. They made improvements when required and it is extremely doubtful if they were present at the scene of the crime and bad witnessed it. Jan Muhammad found a golden opportunity lying at his feet to charge his enemy Abdur Razaq and his close relatives for the murders. Matiul Haq was contesting the election against the deceased Sher Azam and was charged for the murder of the latter. It is manifest that the appellants who were closely related were roped in by Jan Muhammad and Gul Afzal. We wonder if in the terrifying moments one could say as to which of the assailants had killed which of the victims Had Jan Muhammad and Gul Afzal been present at the spot there was no occasion for the assailants to spare them. They find corroboration from no reliable quarter at all. The prosecution could not bring home the charge to the appellants beyond reasonable doubt and the benefit of doubt shall, of course, go to them.
In the result, we would accept the appeal, set aside the convictions and sentences of the appellants and acquit them. They be set at liberty if not required in any other case. The revision fails and is dismissed.