' SAAD SAOOD JAN, .J.-The appellants, Abdul Razzaq (aged 33 years), Ghulam Khawaja Khan (aged 59 years), Nazar Hussain Khan (aged 26 years) and Shah Nawaz Khan (aged 35 years), together with four other persons, namely, Ghulam Shabbir, Muhammad Khan, Muhammad Nawaz Khan and Fateh Khan, were tried by an Additional Sessions Judge at Mianwali of offences under sections 302 and 307 read with section 149 and section 148 of the Pakistan Penal Code for causing the death of Abdul Rashid deceased, making murderous assault upon a number of persons including Sohrab Khan (P. W. 8) and Ghulam Naseer Khan (P. W. 5) and committing rioting. The learned Additional Sessions Judge acquitted Ghulam Shabbir, Muhammad Khan, Muhammad Nawaz Khan and Fateh Khan of all the charges. He convicted all the appellants of the offences under section 307, read with section 34 of the Pakistan Penal Code and sentenced them to rigorous imprisonment for a period of two years and to fines of Rs, 1,000 each or, in default thereof, to further rigorous imprisonment for a period of six months. He convicted Abdul Razzaq appellant alone of the offence under section 302 of the Pakistan Penal Code and sentenced him to death and fine of Rs, 2,000 or, in default thereof, to rigorous imprisonment for six months, The appellants have filed a joint appeal against their convictions and sentences and the learned Additional Sessions Judge has made a reference to this Court for the confirmation of the sentence of death imposed upon Abdul Razzaq appellant. This judgment will dispose of both these matters,
2. The deceased was the chowkidar of Mohalla Landkhel of village Mochh in Tehsil Mianwali. The case of the prosecution was that on the morning of 14th May, 1976 at about 6-00 a. m., he and his cousin Ghulam Qasim Khan (P. W. 7) were proceeding to the house of Ghulam Naseer Khan (P. W.
5) to attend to the guests of the latter. When they reached the graveyard which fell on the way they found the appellants and their companions firing towards the house of Ghulam Naseer Khan (P. W.
5). Abdul Razzaq and Shah Nawaz, appellants, who were armed with rifles, together with Muhammad Khan, who was carrying a shot-gun, were standing on the roof of the house of Shah Nawaz, appellant. Nazar Hussain and Ghulam Khawaja, appellants, alongwith Ghulam Shabbir, Muhammad Nawaz and Fateh Khan, all armed with shot-guns, had taken positions behind some trees in nearby sugar-cane field. The deceased and Ghulam Qasim Khan (P. W. 7) at first took shelter behind some trees in the graveyard but when the firing did not abate they ran towards the house of Ghulam Naseer Khan (P. W. 5). On seeing them Abdul Razzaq, appellant, raised a lalkara and immediately thereafter he fired at the deceased. The deceased was hit behind his right ear and he died at the spot. Haq Nawaz Khan (P. W. 9), Sohrab Khan P. W. 8) and some others fired back at the assailants in self-defence. Apart from the deceased no one else was hurt during the cross-firing.
3. The motive for the occurrence was stated to be an incident which took place two days before the occurrence. It was alleged that Noor Muhammad Khan, a brother of Ghulam Naseer Khan (P. W. 5) had found Nazar Hussain, appellant, taking a bath in the nude at the well of his cousin Ghulam Qasim Khan, Noor Muhammad Khan raised a protest which led to an exchange of abuses between them. On the following day, that is, 13th May, 1976 the appellants and some others fired at Habib Ullah and Fateh Muhammad who were connected with the complainant party. As a result of this firing Fateh Muhammad was hurt. A case under section 307, read with sections 149 and 148 of the Pakistan Penal Code and under section 13 of the Arms Ordinance was registered against the assailants. The present occurrence was described to be a sequel to these two incidents.
4. Police Station Mochh was at a distance of six furlongs from the spot. Immediately after the firing or during the course thereof S.-I, Muhammad Shafi (P. W. 10) reached the scene of occurrence. He recorded the statement (Exh. P. A) of Ghulam Qasim Khan (P. W. 7) at 7-47 a. m. On the basis of this statement an F. I. R. Was registered on the same day at 8-00 a. m. At the said police station.
5. The case was mainly investigated by S.-I. Muhammad Shafi (P. W. 10). All the appellants appeared before him on their own on 15th May, 1976. They helped the investigating officer in recovering their weapons. However, as no cartridge case was found at the scene of occurrence the evidence relating to the recovery of the fire-arms is not of much use to the prosecution.
6. The post-mortem examination of the deceased was performed by Dr. Ashiq Ali who was posted as medical officer in the District Headquarter Hospital at Mianwali. The deceased had a fire-arm wound of entrance behind the right pinna and a wound of exit in the left mastoid area. In addition, he had a contused wound on the left upper eye-lid but according to the doctor this injury was probably due to his fall on the ground. In the opinion of the doctor the deceased had died immediately after being hit.
7. Dr. Ashiq Ali also examined Sohrab Khan (P. W. 8), on the day of occurrence. He had three contused wounds on his body. However, it was no body's case that during the course of occurrence the parties had come to blows with each other. The doctor expressed the opinion that the injuries of Sohrab Khan (P. W. 8) could be caused by a friendly hand.
8. The appellants pleaded not guilty to the charges against them. They denied that they were responsible for causing the death of the deceased. They alleged that they had been falsely implicated on account of enmity. They did not lead any evidence in their defence. However, one of the accused who was acquitted examined a Muharrir Head Constable of Police Station Mochh to produce F. I. Rs, of certain previous cases.
9. The case of the prosecution against the appellants rests entirely upon the ocular testimony furnished by Ghulam Naseer Khan (P. W. 5), Ghulam Qasim Khan (P. W. 7), Sohrab Khan (P. W. 8) and Haq Nawaz Khan (P. W. 9). Two other persons, namely, Habih Ullah and Hamid Ullah, who were also cited as eye-witnesses in the F. I. R. Were given up as unnecessary. All the eye-witnesses stated that the appellants together with their companions had fired towards the house of Ghulam Naseer Khan (P. W. 5) and that the deceased was killed by Abdul Razzak appellant. Except for Ghu lam Naseer Khan (P. W. 5) they all alleged that before firing at the deceased Abdul Razzaq appellant had raised a lalkara.
10. All the eye-witnesses are closely inter-related. Haq Nawaz Khan (P. W. 9) is the brother and Sohrab Khan (P. W, 8) is a cousin of Ghulam Naseet Khan (P. W. 5). The father of the deceased, namely, Ghulam Ahmad (P. W. 3) admitted in an earlier statement that Ghulam Qasim Khan (P. W.
7) was a servant of Ghulam Naseer Khan (P. W. 5). This was not disputed byChulam Naseer Khan (P. W. 5) but he added that Ghulam Qasim Khan (P. W. 7) was also the Kamin of the entire village.
11. When the trial started Ghulam Naseer Khan (P. W. 5), Sohrab Khan (P. W. 8) and Haq Nawaz Khan (P. W. 9) were under detention. It is not clear in what connection Sohrab Khan (P. W. 8) and Haq Nawaz Khan (P. W. 9) had been arrested but Ghulam Naseer Khan (P. W. 5) stated that he was involved in the murder of Shah Wall Khan. Admittedly, Shah Wall Khan was a half-brother of Muhammad Nawaz who was acquitted by the learned Additional Sessions Judge. Thus he was uncle of Shah Nawaz Khan appellant. In his cross-examination Haq Nawaz Khan (P. W. 9) conceded that his family had enmity with the tribe of Fatch Khan, another accused acquitted by the learned Additional Sessions Judge.
12. Soon after the occurrence Sohrab Khan (P. W. Had contused wounds on his person. The investigating officer prepared his injury statement (Exh. P. N.) and then sent him to the hospital for obtaining a medico-legal report. The investigating officer stated that Sohrab Khan (P. W. 8) had told him that he had received his injuries during the occurrence. Now this could not be so as it was not the case of the prosecution that the complainant party and the accused party had at any stage of the occurrence come close to each other. For this reason, perhaps Sohrab Khan (P. W. 8) did not refer to his injuries at all when he appeared at the trial. Even though what Sohrab Khan (P.
W. 8) told the investigating officer is inadmissible in evidence by virtue of the bar contained in section 162 of the Code of Criminal Procedure, it is difficult to avoid the impression that the injuries on his person were fabricated with some ulterior motive which could possibly be to seek support for his claim that he was an eye-witness of the occurrence. It is to be noticed that according to Ghulam Naseer Khan (P. W. 5), Sohrab Khan (P. W. 8) lived 200 to 300 Karams away from the place of occurrence. The occurrence took place at 6-00 a. Tn. Sohrab Khan (P. W. 8) had hardly any reason to be at the house of Ghulam Naseer Khan (P. W. 5) at that hour. He admitted that he had no business with Ghulam Naseer Khan (P. W. 5) and that he had gone to the latter's baithak just because they belonged to the same brotherhood. In the circumstances his presence at the spot is not free from doubt. We shall therefore exclude his testimony from consideration.
13. According to the eye-witnesses account the firing started at 600 a. m. And continued for l hours.
It was entirely directed at the baithak of Ghulam Naseer Khan (P. W. 5). It is, therefore, somewhat surprising that the investigating officer who arrived at the spot when the firing was going on or had just stopped, did not find any bullet or pellet marks on the house of Naseer Khan (P. W. 5). Similarly the investigating officer did not find any marks of the retaliatory firing of the complainant party.
The possibility, therefore that the eye-witnesses have given exaggerated version cannot be ruled out.
14. According to the prosecution the appellants and their co-accused were split up in two gtoups : Abdul Razzaq and Shah Nawaz Khan appellants alongwith Muhamad Khan were firing from the roof of the house of Shah Nawaz Khan while Ghulam Khawaja Khan and Nazar Hussain Khan, appellants, together with three others were firing from a nearby sugar-cane field. The site plan (Exh. P. K.) produced by the prosecution shows that the sugar-cane field was at a distance of 150 Karams from the baithak of Ghulam Naseer Khan (P. W. 5). A Karam being of 5i feet in Mianwali District the said distance would come to more than a furlong. The Patwari stated that a corner of a house intervened between the sugar-cane field and the baithak of Ghulam Naseer Khan (P. W. 5).
Thus, Ghulam Naseer Khan (P. W. 5) and Haq Nawaz Khan (P. W. 9) who did not come out of the baithak but merely peeped out of a door thereof could not have an unobstructed view of the sugar-cane field. Consequently their testimony with regard to the identity of the persons firing from the sugarcane field can hardly be regarded as dependable.
15. The place where the deceased and Ghulam Qasim Khan (P. W. 7) had taken shelter before attempting to get into the house of Ghulam Naseer Khan (P. W. 5) has not been shown in the site plan. However, according to the F.I.R. And the statement which Ghu lam Qasim Khan (P. W. 7) made at the trial it appears that they had hidden themselves in the graveyard. In the site plan (Exh. P. K.) the graveyard is shown towards the South of the house of Ghulam Naseer Khan (P. W. 5). Two houses intervene between the graveyard and the sugar-cane field from where Ghulam Khawaja Khan and Nazar Hussain Khan, appellants, and their alleged companions were stated to be firing.
Consequently, Ghulam Qasim Khan (P. W. 7) could also not have seen the persons present in the sugar-cane field. It was the case of the prosecution that Ghulam Qasim Khan (P. W. 7) and the deceased had tried to run towards the house of Ghulam Naseer Khan (P. W. 5) while the firing was still going on. Therefore, they must have been in a hurry to get inside the said house. They would hardly be looking around to ascertain the identity of the persons who were present at a distance of more than a furlong away in a sugar-cane field. In the circumstances it is difficult to accept the testimony of Ghulam Qasim Khan (P. W. 7) with regard to the identity of the persons present in the sugar-cane field.
16 There is no evidence on the record which may corroborate the testimony of the eye-witnesses with regard to the identity of the persons who were firing from the sugar-cane field. The investigating officer stated that the sugar-cane field had been freshly irrigated and was wet and no marks of footprints were visible therein. He also did not find any empty cartridges lying there.
This was despite the fact that according to the eye-witnesses the firing had lasted for an hour and a quarter.
17. Of all the persons allegedly present in the sugar-cane field the learned Additional Sessions judge has chosen to convict Ghulam Khawaja Khan and Nazar Hussain Khan, appellants, only. The learned Additional Sessions Judge has distinguished the case of these two appellants on the ground that guns were recovered from their possession. It is to be noticed that the recoveries in question took place 10 days after the occurrence and both these appellants held licences for the guns produced by them (See Exh. D.C.), No empty cartridge was found at the scene of occurrence.
Therefore, it cannot be said that these guns were in fact used during the course of occurrence.
18. As regards Abdul Razzaq and Shah Nawaz Khan, the eyewitnesses stated that these appellants were standing on the roof of the house of Shah Nawaz Khan together with Muhammad Khan we was acquitted by the learned Additional Sessions Judge. They further alleged that Abdul Razzaq appellant raised a lallcara and fired when he saw the deceased and Ghulam Qasim Khan running towards the house of Ghulam Naseer Khan (P. W. 5). The learned Additional Sessions Judge convicted Abdul Razzaq alone of the murder of the deceased on the ground that the killing of the deceased was his individual act. From The evidence on record it seems difficult to attribute the fatal injuries suffered by the deceased to Abdul Razzaq with any measure of certainty. As already stated Ghulam Qadir Khan (P. W. 7), Ghulam Naseer Khan (P. W. 5) and Haq Nawaz Khan (P. W. 9) were present at a distance of about one furlong from the roof where the firing allegedly took place.
According to their version there were two persons on the roof who were armed with rifles and were indulging in firing. Considering the distance between the witnesses and the roof it is somewhat unlikelv that they could be in a position to identify the person who actually tired at the deceased.
Apart from that their testimony is in conflict with the medical evidence. As already mentioned the deceased had two fire-arm injuries on his body. One of these was the wound of entrance and the other the wound of exit. The doctor stated that these injuries could not be caused to the deceased if the assailant was at the top of a roof with the height of ten to fourteen feet at the time of firing or if at the relevant time the deceased was in a standing position. It was not the case of the prosecution that the deceased had slipped down while he was running for shelter. To get over this conflict, Ghalam Naseer Khan (P. W. 5) took up the position for the first time at the trial that Abdul Razzaq fired at the deceased while he was in a lying position. It was clearly an improvement and must, therefore, be rejected as such. On the other hand, considering the nature of the injuries received by the deceased the possibility cannot be ruled out that he was hit by the fire coming from the sugarcane field.
19. In this state of evidence implicit reliance cannot be placed upon ocular testimony. The learned Additional Sessions Judge acquitted four of the eight accused. There is neither an appeal nor a criminal revision by the State. This is thus a case where the possibility of false additions cannot be precluded, We would, therefore, be reluctant to uphold the convictions of the appellants in the absence of any cofirmatory evidence. None is available in this case. Accordingly we would set aside the convictions and sentences of the appellants, acquit them of the charges against them and direct that they be set at liberty if not required in any other case.