ABDUL KARIM KHAN KUNDI, J.-Criminal Appeals Nos. 276/1980 and 285/1980 are directed against the judgment and order of Additional Sessions Judge, Peshawar, dated 25th August, 1980 vide he held the six appellants guilty on charges of rioting and committing double murders in prosecution of the common object under section 302/148/149, P. P. C. And sentenced each of them to one year R. I. And life imprisonment on two counts and a fine of Rs. 1,000 payable to the heirs of the deceased in equal shares.
2. At the trial, the prosecution case unfloded that on the day of occurrence, Abdul Khaliq deceased accompanied by his brother-in-law Gul Rehman (P. W. 11) and one 'Mohallah Valla' Bakhtiar (P. W.
10) were on their way from the side of `Doh Darwaza' to Novelty Cinema when as soon at 14-20 hours they reached near .Jehangir Hotel, they saw Bacha, Tajai and Sydai, fathers names not known, duly armed with topaks paks who opened fire at them from behind, as a result of the fire shot of Bacha, Abdul Khaliq deceased was hit while at the fire shots of Tajai and Sydai, an unknown passer-by was hit who died on the spot. Motive was given that Abdul Khaliq deceased had altercated with the said three accused in Novelty Cinema during a film-show on a day before the occurrence.
3. Bakhtiar Ahmad and Gul Rehman P. Ws. Had rushed Abdul Khaliq deceased then in injured condition in a `Rikshaw' to Lady Read--ing Hospital for treatment where he recorded his report per Exh. P. A,/2 to Abdul Ali Khan A. S.-I. (P. W. 7) in the Casualty Ward. The A. S.-I. Had also taken into possession his blood-stained clothes which were onward delivered to Sultan Mahmood Khan, Investigating Officer (P. W_ 21) by Memo. Exh. P.C./10.
4. Amanullah Khan S. H. O. Police, Station, Gulbahar (P. W. 15) accompanied by Muhammad Yaqoob Constable (P. W. 14) were; returning to their Police Station from Katchery and as soon they reached near Jehangir Hotel, they heard the report of fire shots and saw 5/6 persons firing from the road side. Out of them, they succeeded in apprehending one Sabir accused-appellant who was disarmed of a 7 m. m. Rifle and -32 bore pistol which were taken into possession by Amanullah Khan S. H. O. (P. W. 15) vide Memo. Exh, P. C./7.
5. Khidmat Hussain S.-I. Then S. H. O. Police Station Kabli (P. W. 17) was present in Police Station along Nawab Khan A. S.-I. (P. W. 19) and other police personnel when they heard the report of firing from the direction of the side of Khyber Bazar. They rushed to the spot and on reaching saw some persons firing near Jehangir Hotel while same persons were firing from the roof of the Hotel. They also saw Amanullah Khan S. H. O. (P. W. 15) along a Police Constable with Sabir accused-appellant in their custody, They police-party later on arrested six accused namely Asmat, Maazullah, Abdus Samad, Inayatullah Shah, Zahiduliah and Shamsur Rehman with fire-arms. Some of the companions of the accused had allegedly made good their escape on arrival of the police.
6. Amanullah Khan S. H. O. (P. W. 15) had drawn the report per Exh. P. A./1, on the basis F. I. R. No. 456, dated 28th June, 1979 Exh. P. A. Was registered.
7. Doctor Kibla Khan (P. W. 16) had examined Abdul Khaliq deceased then in injured condition on 28th June, 1979 at 14-30 hours and had found the following :-
(1) A fire-arm injury on the right anterior lateral abdominal wall in the mammary line with fatty and subcutaneous tissues and peritoneum tissue coming out of the injury in a size of --" x --".
(2) A fire-arm injury on left anterior abdominal wall in the mid clavicular line; in a way1--" x 1-1/3" with fatty and other tissues coming out through the wound.
(3) A ire-arm injury on left lateral thigh upper lateral side size --" centimetre into --" centimetre.
The Doctor endorsed his report on the injury-sheet Exh. P. E./3.
The patient had later on died on 2nd July, 1979 at 11-00 a. m. The same Doctor had conducted the post-mortem examination on his dead body and he found peritoneum, small intestines and large intestines injured. Cause of death was given multiple fire-arm injuries to small and large intestines resulting in severe haemorrhage and shock. The Doctor stated that injuries Nos. 1 and 3 could not be caused by the same shot. He further stated that the diamen--sions of injuries Nos. 1 and 3 were the same, although he had given the diamension of injury No. 1 in --" x --" inches and that of injury No. 3 in --" x --" centimetres.
8. Doctor Liaqat Ali Khan (P. W. 1) had conducted the autopsy on the dead body of Khushal Khan, a passer-by, aged about 18/20 years on 28th June, 1979 at 18 hours. On external examination, he found the following :-
(1) Fire-arm entry wound --" x --" on the right 6th intercostal space posteriorly 3" from the median line.
(2) Fire-arm exit wound --" x --" on the left 5th intercostal space two inches from the median line anteriorly.
On internal examination, he found that chest wall, pleura, right and left lungs, heart and blood vessels were injured. Stomach was empty and healthy. Death was opined due to heart injury caused by fire-arm. He stated that the deceased was fired at from the back with corresponding exit on the front of his chest.
9. Khidmat Hussain, S. H. O. Police Station, Kabli (P. W. 17) had effected the recoveries of fire-arms from the accused which be had taken into possession by different memos. He had further recovered the crime empties and card board discs from the spot by different memos.
10. Sultan Mahmood Khan, S. H. O. East Cantt. (P. W. 21) had carried further investigation by recording the statements of P. Ws. Taking into possession blood-stained clothes of the deceased and preparing the site-plan at the instance of the eye-witnesses and the police personnel. He had sent the fire-arms taken into possession from the custody of accused --appellants to Forensic Science Laboratory, Peshawar where Nawab Gul Arms Expert (P. W. 12) received the parcels on 8th July, 1979 and carried out the examination on 11th July, 1979 and formed the opinion that five crime empties were fired from one 7 m.m. Rifle, three crime empties from other 7 mm. Rifle, two crime empties each from two different 7 mm, rifles and a -12 bore crime empty from S. B. B. L. Shot-gun.
He stated to have received 11 sealed parcels which he opened, prepared the test empties and then compared the crime empties therewith to form the opinion.
11. Sardar Shah and Said Shah accused had absconded whose search warrants and proclamation orders were obtained but to no avail. There was submitted a challan against them under section 512, Cr. P. C.
12. Now, there is one set of evidence comprising of the dying-state--ment of Abdul Khaliq deceased Exh. P. A./2 recorded by Abdul Ali Khan A. S.-I. (P. W. 7) and the oral testimonies of Sharif Ullah (P. W. 9) and Gul Rehman (P. W.. 11) brother-in-law of Abdul Khaliq deceased and one Bakhtiar Ahmad (P. W. 10) the deceased's friends. The .Evidence does not charge the accused appellants at all. 1t does not connect them in any manner with the commission of the offence, Exh. P. A./2, the dying-declara--tion specifically charges three persons by name other than the accused-- appellants who opened fire at Abdul Khaliq deceased, as a result, he was hit and one passer-by was hit who died on the spot. Again only accused named in the dying-statement were attributed a motive and also the fatal shots.
13. Sharif Ullah (P. W. 9) has given evidence about the motive. He stated to be present in `Tasweer Mahal' Cinema at the time of occurrence. He had come out of the Cinema on firing. He had seen the police arriving from the two directions. He stated that firing had since ceased when the police arrived at the spot. He had accompanied Abdul Khaliq deceased in injured condition in a `Rickshaw' to the hospital.
14. Bakhtiar Ahmad (P. W. 10) stated that when they reached near. Jehangir Hotel, Peshawar they saw few persons standing armed with topaks who later on opened fire at them from behind, as a result, Abdul Khaliq deceased was hit and injured. He stated that there were fired some 4/5 shots when the police also arrived at the spot. He had not identi--fied the accused appellants at the trial as being those armed persons who had open fire at them.
15. Gul Rehman (P. W. 11) stated that Sardar Shah accused abs--conder) accompanied by 4/3 other persons had opened fire at them from behind, as a result, Abdul Khaliq deceased was hit and injured. He did not know as who were those 4/5 persons, nor he identified the accused-- appellants at the trial as the alleged companions of Sardar Shah accused (absconder). He stated that as soon the firing stopped, they picked up Abdul Khaliq deceased in injured condition in a `Rickshaw' to take him to Lady Reading Hospital, Peshawar and that the police party arrived at the scene of occurrence at then.
16. The evidence as above, coming from Abdul Khaliq deceased himself in his dying-statement, his two brothers-in-law and a friend, charges persons other than the accused-appellants for the commission of the offence. The evidence establishes that the police-party arrived at the spot after firing. These were fired some 4/5 shots and that firing was only made from the ground and not from the roof of the Hotel. Fatal shots were fired b 'Y persons other than the accused appellants.
17. Coming to the second version of the incident, there was drawn a report by Amanullah Khan S. H.
O. Per Exh. P. A./1, on the basis F.
1. R. Exh. P. A. Was registered. The report per Exh. P. A./1 records the names of the accused with their fathers names, the fire-arms in rifles. Pistols and shot-gun recovered from the accused-appellants and copies of licenses all with full description and details.
The F.
1. R. Also stated that some more person had made good their escape. It further records that the dead body of Khushal son of Karim and Abdul Khaliq injured son of Noor Ahmad of Gul Babar were sent to mortuary for autopsy and treat--ment respectively. It also records the motive that parties had altercated and grappled with each other on the preceding day of occurrence in the -- -Tasweer Mahal' Cinema. Amanullah Khan S. H. O., the informer, had also prepared the recovery memo. Per Exh. P. C.J7. Murasila Exh. P. A./. 1 culminating into F. I. R. Exh. P. A. Was prepared by a Police Officer on his own after conducting preliminary investigation and arrests and as such cannot be relied and accepted as F. I. R. To prompt the commence--ment of investigation in the offence and to give first impression of the prosecution case.
18. Now, we shall discuss the arrest and possible participation of each accused appellants in the firing during the course of incident. Sabir accused appellant was apprehended armed with 7 mm.
Rifle and .32 bore pistol by Amanullah Khan S. H. O. (P. W. 15) and Muhammad. Yaqoob Constable (P. W. 14). The police personnel were reportedly on their way from Katchery to Police Station, Gul Bahar and it is a fact that the spot does not fall in their normal route. The witnesses claimed that they had seen him firing and had arrested him from the spot as such. How ever, Muhammad Yaqoob Constable (P. W. 14) was to state lit cross---examination that he had- not seen Sabir accused on firing. He further stated that all the accused firing from the road side had subsequently claimed the roof of Jehangir Hotel where from they were arrested. Arrest of Sabir accused appellant has been shown on the ground at Point No. .5 on the site-plan. Even Amanullah Khan S. H.
O. (P. W. 15) stated that when he arrested Sabir accused, firing from the road side had since stopped. The close relation and a friend of Abdul Khaliq deceased had earlier stated that firing had since stopped at the time of arrival of the police-party. Prosecution thus fails to prove the apprehension of Sabir accused appellant from the spot with participation in firing beyond reason- -able doubt.
19. Lal Badshah A. S.-I. (P. W. 13) stated that he could not say as how many persons were firing from the road side in a number of 2, 4, 6, 7 or 8. He could not say- as who had arrested Inayatullah Shah and Shamsur Rehman accused. He stated that he had not -seen the said two accused on firing.
Now Inayatullah Shah and Shamsur Rehman accused appellants were arrested by Khidmat Hussain S. H. O. (P. W. 17) who stated that he had arrested them from the roof of Jehangir Hotel after they were disarmed. Nawab Khan A. S -I. (P. W. 19) accompany--ing him stated that Inayatullah Shah and Shamsur Rehman accused, appellants were sitting in front of Jehangir Hotel duly armed with topaks when they were arrested. The site-plan Exh. P. B. Shows the presence of Inayatullah Shah accused-appellant at Point No. 6 and that of Shamsur Rehman at Point No. 7 ort.The ground from-where they were arrested. Khidmat Hussain S. H. O. (P. W. 17) and his companion A.. S.-I. (P. W.
19) have given inconsistent statements about the presence and arrest of the accused appellants on the spot.
20. There have been recovered three card board discs from Point No. 6, the place of the presence of Inayatullah Shah accused appellant. It is a matter of common knowledge that card board discs fall at some distance ahead from the place of a man firing while here the card board discs have been recovered from the very place of the presence ofInayat-ullah Shah accused-appellant.
21. About Asmat, Zahidullah and Abdus Samad accused appellants Khidmat Hussain S. H. O. (P. W.
17) stated that he had arrested them from the road side and had disarmed them. Nawab Khan A.
S.-I. (P. W. 19) stated that the accused namely Asmat Zahidullah and two others were arrested from the roof of Jehangir Hotel. He also stated that there was no firing from the roof. Inconsistent evidence as above cannot establish the participation of the three accused appellants in the offence beyond a reasonable doubt.
22. Further, there is no evidence if and when the fire-arms recovered from the possession of the accused-appellants and the crime empties recovered from the spot were separately sealed into parcels. There have been allegedly recovered three 7 mm. Empties from the roof of Jehangir Hotel, five 7 mm: empties from the ground and some four 7 mm. Empties from the chambers of rifle. All the recoveries memos have been witnessed by police personnel. Lal Badshah, a marginal witness of the " recovery memos stated that the spot was not inspected in his presence nor the site-plan was prepared at his instance and that the memos were not prepared in his presence. Such recovery memos in the peculiar circum--stances of the case, have to create a reasonable suspicion in the mind of the Court about their genuineness.
23. There were fired 4/5 shots as reported by the other eye-witnesses while there have been made recoveries of some twelve 7 mm. Empties, four -32 bore empties and one 12 bore empty from the spot and barrels of the fire-arms as recovered from the possession of the accused suggesting minimum 17 fire shots during the course of incident.
24. There have been recovered a 7 mm. Empty each from the places of the presence of Sydai and Tajai accused (absconders) at Points Nos. 8 and 9 on the site-plan. There is no evidence if the absconders had left behind their rifles which were taken into possession by the Investigating Officer. Strange enough, the Arms Expert was still to match all the twelve 7 mm. Empties including the two recovered from the places of the presence of absconders with 7 mm. Rifles recovered from the accused --appellants. Thus, the suspicious character of the recoveries of crime empties and fire-arms and their despatch in parcels to Arms Experts with out specification and lost the omnibus positive report of the Arms Expert cannot be accepted a reliable material for safe dispensation of justice.
25. There is another important aspect of the case. Prosecution bas not produced evidence if the accused appellants were to bear any personal animosity/grudge against Abdul Khaliq deceased.
There is no evidence if the accused were inter se connected/related with each other. The necessary ingredients of common object are a prior meeting of minds of the accused to form a prearranged plan. Accused have to share the motive with each other either to be directly inimical to the deceased or to be close relation/friends/associates/companions of each other or to have been hired by the principal accused to commit the crime. There must come-forth some evidence that the accused were in consort and pursuant to pre-arranged plan, the criminal act was committed. Mere presence of the accused on the spot is not sufficient for showing their prior consort with each other to commit the crime. Presence of persons armed with licensed or unlicensed fire-arms around the scene of occurrence in a common place, particularly in this part of the Country, is not an un--common feature. Only apprehension of such persons otherwise un-- concerned shall not be sufficient to sustain their conviction under sec--tion 149, P. P. C.
26. In view of the foregoing discussion, the prosecution has failed to bring home charge to the accused appellants beyond reasonable doubt. Criminal Appeals Nos. 276 and 285 of 1980 are accepted and the convic--tions and sentences of the accused appellants are hereby set aside.
They shall be set at liberty if not required in any other case. Fire-arms recovered from the possession of the accused appellants duly entered in their names as licensees or retainers shall be returned to them.