INAYAT ELAM KHAN, 3.-The appellant. Hashmat Ali son of Hashim Khan aged 25/26 years of village Najeem Abad, Tehsil Charsadda, was tried for the murder of Muhammad Siddique son of Nasrullah by the Additional Sessions Judge, Charsadda, and convicted under section 302/34, P.P.C. And sentenced to death. He has also been sentenced to pay fine of Rs, 10,000 and in default to undergo further R. I. For 2 years. From the amount of the fine, if realised, a sum of Rs, 5,000 is to be given to the heirs of the deceased. The appellant has challenged his conviction and sentence by this appeal. A reference under section 374, Cr. P. C. For confirmation of his death sentence is also before us. This judgment will dispose of both the appeal as well as the murder reference.
2. The prosecution case as disclosed in the First Information Report lodged by Mir Alam (P.W. 10) in Police Station Prang on 17th September. 1980 at 1.10 p. m. Is that the complainant alongwith Wisal (P.
W. 11) and Muhammad Siddique (deceased) had gone to village Prang for purchasing some articles. After having made the purchases they were coming back to their village Shabara. When they reached near the Dhera of Nazeer Khan, all of a sudden, they saw the appellant and his brother Saleem (absconder emerging from the maize crop. Both of them started firing at them which resulted in the instantaneous death of Mohammad Siddique. The motive given in the First Information Report is that Mst. Maja, a sister of the appellant and Saleem (absconder) was married to the deceased. She died of Tuberculosis about two years back. However, the appellant and his brother suspected that their sister was murdered by the deceased.
3. Mohammad Shabir Khan, A. S. T. (P. W. 13) recorded the report of the complainant in the Police Station and registered the case against the appellant and his brother vide F. I. R. (Exh. P. A.). He then went to the spot and prepared the injury-sheet of the deceased (Exh. P. C.) and the inquest report (Exh. P. C./1) and sent the dead body to the mortuary for the post-mortem examination. From the spot he took into possession 4 empty shells of .32 bore (Exh. P. 1) vide recovery memo. (Exh. P. D.). He also prepared the site plan (Exh. ,P. B ) and took into possession the blood-stained shirt and shalwar (Exhs. P. 2 and P. 3) of the deceased brought from the hospital by a constable vide recovery memo. (P. D./1). One sealed bottle (Exh. P. 4) containing a bullet recovered from the dead body of the deceased by the Doctor was also taken into possession by recovery memo (Exh. P.
D./2). He stated that the entry in the daily diary of Police Station Prang dated 17th September, 1980 at S. No, 26 showed his return to the police station. But the learned trial Court observed that "The perusal of entry number 26 of the D. D. Shows that the time has been overwritten as 11.30 which was originally 10.00 and some minutes". The witness denied that suggestion that he came to know of the occurrence while he was on gusht whereafter he went to the spot and after completing the preliminary investigation he came to the police station and recorded the report of the complainant.
4. The autopsy on the dead body of the deceased was performed by Doctor Gohar Ali (P. W. 8) on 17th September, 1980 at about 3-45 p. m. And found the following injuries :
(1) Three fire-arm entry wounds on the back in the right lumbar region size of each about i" x
(2) One fire-arm entry wound on the back of right buttock size about r x r.
(3) One fire-arm exit wounds on the front of right side of chest in the fourth intercostal space near the right side of sternum size x
(4) One fire-arm exit wound in the epigastrium in front size i" x On internal examination, walls ribs, cartilages, pleurae, right lung, left lung, heart, pericardium, peritoneum, diaphragm, stomach, small intestines, large intestines and liver were found injured.
The stomach was full of food matter. In the opinion of the Doctor, the death was caused due to the injuries caused to heart, liver and lungs caused by fire-arm. One shirt with charring marks, one shalwar and one bullet recovered from the abdomen of the deceased were handed over to police.
5. Both the appellant and the co-accused absconded after the occurrence. The appellant was arrested on 25th December, 1981 by Gul Roze, A. S. I. (P. W. 9.) of Police Station Sardheri.
6. The prosecution case rested on the ocular testimony of Mir Alam (P. W. 10) and Wisal (P. W. 11) as well as the motive and the medical evidence. At the trial the appellant pleaded innocence and stated that the P. Ws. Were highly interested being inter-related and also closely related to the deceased. He stated that the father of the deceased had appeared as an eye-witness in a murder case in which father of Wisal (P. W.) was murdered and therefore, Wisal has appeared as a false witness in the case. About the abscondence he stated that he disappeared on account of fear due to the false charge levelled against him. He also denied that he had suspected the deceased to have murdered his sister Mst. Maja.
7. The learned counsel for the appellant contended that the eyewitnesses are not only related to the deceased but their evidence is discrepant and unreliable and the witnesses being partisan their testimony would require strong and independent corroboration Further contended that the medical evidence was inconsistent with the oral evidence and the prosecution has also failed to prove the motive for the offence It is also urged that the occurrence had not taken place at 12.00 hours as alleged by the prosecution and it might have occurred earlier at about 9.00 or 9.30 a. m.
On the other hand, it is contended on behalf of the State that minor discrepancies in the testimony of the eye-witnesses would not detract from their veracity as they had given a true account of the occurrence which had taken place in their presence. Reliance is also placed on the abscondence of the accused and the existence of a strong motive for the commission of the offence.
8. 'Mir Alam (P. W. 10) is a brother of the deceased and Wisal (P. W: 11) is the son of the maternal- uncle of his father. The wife of Mir Alam (P. W.) is the niece of Wisal (P. W.). The eye-witnesses may not be interested in the sense that they had no personal motive of their own to implicate the appellant and their relationship to the deceased by itself may not be a ground to disbelieve or doubt their evidence but in the absence of any corroborative material, their testimony would require a close and careful scrutiny. The question, therefore, would be whether the testimony of the eye-witnesses can be relied upon for sustaining conviction on a capital charge.
9. Mir Alam (P. W. 10) had stated that Wisal (P. W.) lives at a distance of 60/70 paces from his house who met him by chance on the way while coming from the house. Wisal (P. W. 11) on the other hand, stated that he had sent a child after the deceased and his brother Mir Alam to come to Hujra and from the Hujra they started for village Prang. Mir Alam deposed that in village Prang, he and the deceased purchased some pulses, flour and gur from the shop of Haji Inzer Gul. They purchased one seer of pulses, one maund of gur and a bag of flour from the shopkeeper and Wisal (P. W.) had purchased one seer of Ghee. They left the gur and flour in the shop of Haji Inzer Gul to be carried afterwards on a buffalo. This version is not supported by Wisal P. W., who had stated that they had made purchases perhaps from the shop of one Sher Ali but be did not exactly remember his name He also did not remember what he had purchased on that day. He stated that the deceased had also purchased something like tea, soap, sugar and ghee. They collected their purchases, tied them in their chadders and left for the village taking the articles alongwith them.
Mir Alam (P. W.) stated that Hashmat Ali (appellant) ahead of the absconding accused while emerging from maize crop. Both the accused fired at the deceased and then fired at them. He could not say as to how many shots were fired at the deceased by the accused individually or collectively. He also could not say if both the accused had fired one shot each. However, the deceased was hit by the shots of both the accused. He could not say if 4 shots were fired at the deceased by the accused. He could not even approximately say as to how many shots were fired at them. He could not say as to how many shots were fired in all by the accused. He stated that when the deceased reached near the spot, the appellant went to the North of the deceased whereas accused Saleem came to the South of the deceased before they fired at him. Accused Saleem fired from the front of the deceased and the appellant fired from the back of the deceased.
The accused were at a distance of about 8/10 paces from them. Wisal (P. W. 11) deposed that he did not remember as to which of the accused first came out of the maize crop and who came out afterwards. Both the accused fired simultaneously at the deceased. He could not say how many shots were fired by each of the accused at the deceased. He also could not say as to how many shots in all were fired by the accused at the deceased. The appellant was towards the North while the absconding accused was towards the South of the deceased. He could not say, but may be that the deceased was hit by the fire-shots of both the accused. He could not say how many shots were fired at the deceased and by how many shots he was actually hit. Similarly, he could not say as to how many shots were fired by the accused at them. He could not refute any suggestion about the number of the shots fired at them. The accused were present at a distance, of 10/12 paces from them when they were fired at. He was confronted with his statement recorded under section 164,.Cr. P. C. Wherein it is not mentioned that the accused had emerged from the maize crop. Mir Alam (P. W.) stated that Wisal (P. W.) raised alarm on which some people from the village had come to the spot. Many people came from the village. They included their relatives as well as others. Muslim Khan (P. W. 6) and Masal Khan (P. W. 4) had also come to the spot alongwith other co-villagers. The occurrence was narrated by them to Muslim and Masai. However, Muslim Khan (P.
W. 6) had only deposed about the recovery of 4 empty shells of 32 bore from the spot. He had not stated that Mir Alam and Wisal (P. Ws.) were present at the spot when he reached there. Nor did he say that the occurrence was narrated to them by the eyewitnesses. Masal Khan (P. W. 4) had only identified the dead body in the mortuary and had stated nothing about his arrival at the spot soon after the occurrence. Wisal (P. W.) also stated that many people gathered on the spot who came from the village and the nearby fields but he could not give the number of the persons collected at the spot. He stated that the occurrence was narrated to the persons who had gathered at the spot soon after the occurrence. Thus, the eye-witnesses have admitted that several persons were attracted to the spot soon after the occurrence to whom the occurrence was narrated but still nobody was examined as an independent witness who could at least say that he came to the spot after the incident and was informed by the eye-witnesses that the appellant had committed the offence. In the circumstances mentioned above, the testimony of the eye-witnesses cannot be explicitly relied upon without independent corroboration. In Najeebullah v. The State , material discrepancies had emerged during the cross-examination of the witnesses and, therefore, it was not considered safe to rely on such evidence.It was held that the relationship of the eye-witnesses to the deceased by itself is no ground to disbelieve or doubt their evidence but in the event of lack of corroborative material their evidence has to be examined with caution.
10. The testimony of the eye-witnesses is also not corroborated by medical evidence. According to them the deceased was also fired at by the accused from the front but according to the medical evidence, all the 4 injuries were sustained by the deceased on his back. According to the doctor the injurise were of the same size and could be caused by the same type of missilse. The Doctor also found charring marks on the shirt of the deceased which could not have been possible if the deceased was fired at from a distance of 8/10 paces as stated by the eye-witnesses. About the 4 empties of 32 bore recovered from the spot the Arms Expert opined that they were fired from one and the same weapon. Thus the story of the eye-witnesses that the deceased was fired at by both the accused stands contradicted.
11. It is also appears that the time of occurrence was not 12-00 hours as mentioned in the F. I. R.
Because Muslim Khan (P. W. 6) stated that after the incident he went to the spot from his village at about 11-00 or 10-45 a. m. And the I.O. Reached the spot about one hour after his arrival. It means that the occurrence had taken place earlier than 10.45 a. m. This fact coupled with the opinion of the Doctor that the stomach of the deceased was full of food matter would show that the deceased woo murdered some time after he had taken his morning meal. Therefore, the possibility cannot be excluded that he was Killed at about 9-00 or 9-30 a. m.
12. Another circumstance which may be taken note of is that the appellant, when arrested on 25th December, 1981, was in possession of an unlicensed pistol of .32 bore but the pistol was not forwarded to the Arms Expert alongwith the crime-empties recovered from the spot to prove if they matched with the pistol in question.
13. The motive alleged for the commission of the offence has also not been proved. No independent witness has been examined to prove the same and the testimony of the P. Ws. Has already been found by us to be unreliable. In Hakam Ali and others v. The State it was observed that : "It is not necessary for the prosecution to set up a motive in every case, but where the prosecution has set up a motive and failed to establish it, then it is the prosecution which must necessarily suffer on that account and not the defence."
14. The learned counsel appearing for the State vehemently contended that the appellant absconded soon after the occurrence and was arrested on 25th December, 1981. It may, however, be mentioned that the abscondence of the appellant is not a piece of evidence against him. Such a conduct can be equally consistent with his guilt or innocence. In Farman Ali v. The State it was observed : "But in the absence of any other evidence against them, abscondence by itself as held in a series of judgments by this Court would be of no avail to the prosecution ......It is, therefore, obvious that being young and inexperienced they may as well have made themselves scarce no sooner they found that they were named for the murder of Rashid Khan."
Therefore, in the circumstances, the mere ascendance of the appellant would be of no avail to the prosecution.1 2 3
14. Having given our thoughtful consideration, we have come to the conclusion that the evidence furnished by the prosecution is unsatisfactory and does not inspire confidence. The prosecution has failed to bring home the charge to the accused beyond any shadow of reasonable doubt. We, therefore, give benefit of doubt to the appellant and set aside his conviction and sentence. In the result the appeal is allowed and the murder reference is rejected. The appellant may be released forthwith if not wanted in any other case. 1973 P Cr. L J 737 1971 SCM R 432 PLD 1980 SC 201